R v Keith Harold Allen

[2013] NSWSC 614

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Keith Harold ALLEN [2013] NSWSC 614
Hearing dates:	30 April 2013 - 14 May 2013
Decision date:	22 May 2013
Jurisdiction:	Common Law
Before:	Adams J
Decision:	Reasons for verdict.
Catchwords:	CRIMINAL LAW - murder - defence of another - judge alone trial - no matters of principle.
Category:	Principal judgment
Parties:	Regina Keith Harold Allen
Representation:	Counsel: P E Barrett (Crown) P Winch (Accused) Solicitors: Director of Public Prosecutions (Crown) Legal Aid New South Wales (Accused)
File Number(s):	2010/403885
Publication restriction:

Judgment

Introduction

1. Mr Todd Sutton was killed on 4 December 2010. Mr Keith Allen was charged with his murder, to which he pleaded not guilty. Because of Mr Allen's precarious health (he is receiving palliative care for lung cancer) I acceded to the defence application to dispense with a jury and Mr Allen's trial was conducted before me sitting alone. On 14 May 2013 I found him not guilty and acquitted him, stating that I would give my reasons at a later time. These are those reasons.

1. Mr Sutton was shot twice, first to the shoulder and then to the head. Mr Allen fired the first shot when Mr Sutton was holding his partner Ms A with a knife to her throat, threatening to kill her. He was charged with murdering Mr Sutton because it is alleged that the second shot was not fired in defence of Ms A but when Mr Sutton had dropped the knife and was no longer a threat. In the alternative, the Crown alleges that, even if the second shot was fired because Mr Allen thought it was necessary to defend Ms A, that belief was objectively unreasonable and, accordingly, he is guilty of manslaughter.

1. The eyewitnesses to the relevant events were Ms A, her then 10 year old daughter B and Mr Allen. The first two gave evidence Mr Allen's two interviews with police - at the police station in the early hours of 5 December 2010 and then during a walk through at about 1pm that afternoon - were tendered. He did not give evidence. During her evidence, Ms A adopted as truthful and reliable what she told the police during a walk-through at about 3pm on the afternoon of 5 December 2010. B's evidence in chief comprised her initial interview with police starting just after midnight on 5 December 2010 and a subsequent interview on the afternoon of 17 December 2010. She was briefly cross-examined.

1. Ms A (in her early forties) and Mr Sutton (in his mid thirties and of robust build), were in a relationship. Ms A lived with B who was the child of a previous relationship with a Mr C on Ms A's property of about 300 acres, where she kept greyhounds. Mr Sutton lived in Sydney during the week, returning to the property on weekends. Mr Allen lived in a caravan on the property and helped take care of the dogs. He was a friend of Mr C. Mr Sutton was about 20 centimetres taller than Ms A. Mr Allen was 70 years of age and much smaller and more lightly built than Mr Sutton. He was also partially deaf.

Autopsy

1. The autopsy report which was tendered in the trial identifies the direct cause of death as gun shot injury of the head. Mr Sutton had also suffered a gun shot injury to his left shoulder. That wound involved only soft tissue and a broken clavicle but no vital structures such as major blood vessels or airways. There was some damage to the nerves on the left side of the neck which would generally be expected to cause some incapacitation of the functions of the left arm. It was not possible to determine the sequence in which the gun shot injuries were inflicted but other evidence establishes beyond doubt that the head wound was the second injury. It is perhaps worth mentioning that a few minor bruises and abrasions were found on the upper limbs and left lower limb which were likely to have occurred during falls and/or a scuffle. Of some significance to my mind is the fact that Mr Sutton had a blood alcohol reading of 0.173 grams per 100 millilitres and, in the vitreus humour 0.195 grams per 100 millilitres. Dr Samarasinghe informed the Court that the latter reading was more likely to be accurate as it was less likely to be affected by post-mortem changes. He said, as is obvious at all events, that these alcohol levels were in the moderate to heavy range for intoxication.

1. Of some significance were the entry angles of the bullets. So far as the shoulder wound is concerned, the overall direction of the bullet track is left to right and slightly upward, the doctor thought approximately 30 degrees, plus or minus 10 degrees. A part of the difficulty with accurately describing the entry path is that when the bullet impacted on the clavicle it shattered into pieces and was, of course, deflected. The problem is somewhat less so far as the head wound is concerned since it is possible to mark the line between the point of entry and the other side of the skull where the bullet struck before ricocheting within the skull. Of course, the brain is soft material and therefore would not have deflected the bullet. However, Dr Samarasinghe pointed out that, as a forensic pathologist, he could only describe the direction of the bullet inside the body and did not have an opinion as to the angle which the bullet struck the skull, that is to say, whether it was, to some degree or other, deflected by the skull. The internal examination showed the gun shot wound track extended within the head approximately 43 degrees backwards, slightly downwards and in a right to left direction. The position of the wound was on the right forehead 3.5 centimetres above the outer reach of the right eyebrow and 8 centimetres from and 3.5 centimetres above the right ear opening. It is obvious that the injury from this wound would have caused almost immediate unconsciousness and death.

The scene

1. The property where Mr Sutton died is about 300 acres, close to a square in shape with its northern boundary running along a gravel road. A gravel driveway, with a gate at the road, travels south up a slight incline along the side of the homestead which is about 30 metres from the gate with the main entrance facing the road. Going up the driveway past the house on the right hand side is a concrete slab going off to the left, the nearest edge to the northern boundary being some 43 metres from the gate. It was on the eastern part of this rectangular slab (about 6 metres by 11 metres) that the body of Mr Sutton was found. It can be accepted that it is here that he fell after being shot in the head and that his body was not moved until after police arrived. The body was lying with the head towards the road and the feet pointing more or less south. It was slightly diagonal with the feet some little distance further from the eastern edge of the slab than the head. The distance between Mr Sutton's head and the gate was about 47 metres. The slab was used for the purpose of parking vehicles. On the evening in question two motor vehicles were parked on it, near the centre and to the west, so that as one faced the slab looking towards the house, they were on the left half.

1. The concrete slab, though set in the earth, was raised somewhat at its eastern end, the ground sloping gently down in that direction, so that the slab was horizontal.

1. Moving south along the easterly side of the slab, is firstly a large gravel area of irregular shape about ten metres wide forming the southern end of the driveway which goes down to the gate onto the road. Following the line of the western edge of the slab, about five metres past the driveway was a table next to a pumpkin patch about four metres in diameter. Moving south about two or three metres, was a van parked next to a caravan which was used by Mr Allen.

Late afternoon of 4 December 2010

1. When Ms A gave her evidence, she was very distressed and obviously had difficulties with recollection both for this reason and because the circumstances were, I am satisfied, terrifying. She believed, and reasonably so, that she might be killed, or at least very seriously injured. During her evidence she adopted the walkthrough interview that was conducted with police on 5 December 2010. Although obviously upset at times, and walking with difficulty because of a painful neck which resulted from being manhandled on the previous evening, she was much calmer than when she gave evidence. She said that her memory would have been better than it was at trial. To some degree her accounts truncate events, especially those that occurred earlier.

1. I am quite satisfied Ms A was being honest and doing her best to be accurate about important matters. In some respects she has confused events but I do not regard this as adversely affecting the essential reliability of her description of what occurred from the time that Mr Sutton grabbed her and put the knife to her throat. The following narrative is an amalgam of her evidence and what she said in the walk-through. They differ to some, occasionally substantial, degree but this is not important in the circumstances.

1. During the day, Mr Allen, Ms A, and Mr Sutton did some work around the property. B was there as well. When Ms A went in to cook the evening meal she needed some supplies and asked Mr Sutton to get them from a nearby shop. He went with B in his car and was gone perhaps 15 or 20 minutes. When he returned he remained outside working with the dogs. When Ms A had prepared dinner she called Mr Sutton but he did not come in to eat. She, B and Mr Allen started to eat their meal whilst Mr Sutton was outside. When he came in he was angry because they had eaten dinner without him. Mr Sutton had been drinking through the day and was significantly affected by alcohol. Neither Ms A nor Mr Allen were affected by alcohol. When Mr Sutton came in to eat his meal B was dancing and preparing for an audition for TV advertisements for which she had been rehearsing for some little time. Mr Sutton was angry at this. (B does not mention this and her account of the exchanges at this time is inconsistent with it occurring. However, I am satisfied that Ms A's account - given in the walk-through when she showed police four of B's costumes - is reliable on this point.) According to Ms A, Mr Allen then said, "I'm out of here, I've had enough" and went outside.

1. Ms A said that she started to wash up and clean around the kitchen when B came running in and told her that "Todd's yelling at Keith" and "to go out and see what was going on". When she went outside Mr Sutton was yelling and screaming obscenities and she told him, "Pack your stuff and get out. I've had enough. Go. Please leave" but he ignored her. Mr Sutton was throwing large rocks at Mr Allen. She said, "He was yelling abuse and just he went psycho, he just lost the plot - he was just going mental." She approached Mr Sutton. He had picked up a "blockbuster" (like a blunt axe used to split timber which had been leaning up against a nearby rock pile), and started swinging it at her. B was shouting at her to get away from him. She thought it would have hurt her very badly if she had not moved away. Mr Allen was saying, "Mate get out, just get in your car and go". The blockbuster was put down somewhere but she was not sure where. Mr Sutton pushed her over and then "come at me". She told him to get away, and then ran inside the house chased by him, smashing the door into the wall as he did so. They were in the kitchen and Mr Sutton pushed her up against the refrigerator and the stove. Ms A said in her evidence that B was in the kitchen or the lounge room at the time calling to her. However, later on in the walkthrough she said that she was in the bedroom (which was adjacent to the kitchen) when Mr Sutton grabbed her in front of the refrigerator and that she told B to run and get away. She then ran out the front door and out of the house. (B says she was outside at this time. This inconsistency is of no account.)

1. I now move to Mr Allen's account of events. He did not give evidence. (I should make the point that this cannot give rise to any adverse inference.) I accept that the circumstances were extremely traumatic for him, that he very much acted on the spur of the moment and it can be readily accepted that some events could well have escaped his recollection altogether or become confused. Distortion, which can be quite marked, of perception as well as memory is commonplace in such situations, quite apart from the ability to easily and fluently communicate. (Mr Allen bordered, I thought, on the taciturn.) I concluded that his accounts to police were truthful and reliable so far as the crucial events were concerned, though he certainly omitted some facts about preceding matters, perhaps because he did not think them to be important or just did not feel like mentioning them. His interview at the police station commenced at about 1am after what was almost certainly a long day. He looked tired, was occasionally emotional and upset, terse and impatient. He obviously found revisiting the events painful; plainly (for good reason) he just wanted the interview over. The walkthrough questioning on the next day was obviously a strain for him but I thought he was making a genuine attempt to give a truthful account, at least of how he came to shoot Mr Sutton. (I deal with the potentially important question concerning a warning shot in due course.)

1. The following account is the effect of what Mr Allen said in both the interview and the walkthrough. After some introductory questions, which do not call for mention, Mr Allen said that he and Mr Sutton got along "famously". He said that he also got along well with Ms A and B. He recalled Mr Sutton going to the shop to get groceries at around 5.30pm or 6pm in the evening. Mr Sutton had been drinking all day and Mr Allen thought that the scale of his insobriety was 7 or 8 on a scale from 1 to 10. When Mr Sutton returned to the property Ms A was cooking dinner and Mr Allen, who had been invited for dinner, was at the house. He said that Mr Sutton returned and went into the kitchen. He was belligerent and aggressive towards Ms A and B after he returned to the property. Mr Allen could not remember what he said but it was "verbal diarrhoea". He said that he didn't interfere and that Mr Sutton had said nothing to him. The argument with Ms A started in the kitchen and they went outside. She returned and he, B and Ms A then had their meal, Mr Sutton coming in later and eating his meal. He went back to his caravan after dinner where he watched some videos with the door open. Whilst he was sitting there he heard B screaming and he realized that something was happening. He saw B running down the driveway and Ms A and Mr Sutton wrestling with a blockbuster about 15 feet from his caravan. He grabbed the blockbuster from Mr Sutton and threw it into the back of his van (where, indeed, it was found by police when they arrived at the scene). Ms A and Mr Sutton went to the ground. They were screaming and "carrying on" and went into the house. He then saw Mr Sutton come outside holding Ms A with a knife at her throat. He was then at his caravan, about 50 metres away.

1. It is clear that Mr Allen has not told the entire story of the physical exchange with Mr Sutton at this stage. He has written himself out of any act of violence towards Mr Sutton although, as the accounts of Ms A and B show, they do not show him in a bad light. His credibility is therefore adversely affected to this extent. At all events, I am quite sure that there was indeed a "scrimmage" between Ms A and Mr Sutton on the ground before Ms A fled into the house, chased by an enraged Mr Sutton. I should mention that there is no basis for thinking that Mr Allen was in any way the instigator of the fight with Mr Sutton.

1. I now come to the evidence of B as to what happened at this stage. Her evidence is crucial to the Crown case against Mr Allen. Indeed, it is manifest that unless, in at least two respects, it can be confidently relied on, he must be acquitted. It must therefore be approached with considerable care and caution. In these two matters (as well as others) her evidence differs from that of her mother and, markedly more so, with Mr Allen's account.

1. As I have mentioned, at the time of these events B was 10 years old and living with her mother, with whom she continues to live to the present time. I am satisfied that she understood the distinction between a truth and a lie and what she said represented an honest recollection of events. At the same time, I was doubtful that she really understood the true character of what she was saying in the sense that it was evidence that would be weighed in a court. I found her apparent insouciance worrying. I did not observe signs of careful consideration: the flow of information, though certainly guileless, did not demonstrate reflection. Of course, I do not say this by way of criticism. I do not doubt that she was indeed responding genuinely to the questions she was asked. But, overall, I was not left with any firm confidence in the reliability of her account of facts that were vital to the prosecution's case. These doubts were reinforced by the content of some of her evidence, which I discuss further below.

1. When B gave evidence in the trial by video link she was twelve and obviously had matured significantly in the interim. I am sure she understood the effect of her affirmation in the sense that she knew that she had promised to tell the truth. She had continued to live at the property with her mother since the events in question. Her two interviews were played to her and the Crown prosecutor then asked her some clarifying questions, starting with the details of a sketch map that she had drawn for the police officer on the second occasion. She said, when asked whether she recognised it as what she had drawn, "Not really" although she identified her handwriting on it. On the plan she had marked two areas as dog runs, which are still there and used for the dogs, but was unable to recall whether these were on the property at the date of the incident although there is no doubt they were there and in the same position. She must have seen the dogs running there very frequently. She was unable to say whether the front gate was in the same position, although she thought it was. I asked her about her dancing. She said, when I asked her if she was going for an audition to see if she could get on to TV, "not that I know of". She did not remember having costumes that she used to dance in. However, she recalled that she used to practice dancing at home in the kitchen. She did not remember any time when Mr Sutton got angry with her for doing this. These matters are, of course, peripheral to the issues in the trial (except for the position of the gate which, as I later discuss, is of crucial importance) but they suggested, to my mind, that B's present memory of the events of two and a half years ago was likely to be limited.

1. More generally, B was asked -

"Q. Do you remember saying, or do you remember, apart from what you saw in those interviews that were played to you today, do you remember the things that happened that night or not?

A. Not all of it, some of the things that were in the video I don't even know I said. I can't remember half of it."

She remembered telling the officers that she ran away and went down the driveway. However, when she was asked, "do you remember saying that you saw things after you ran away?" She said, "No". She was asked if she remembered when it was or what caused her to run down the driveway and answered, "Because I was scared and mum, I mean Todd, had mum, and I didn't know what to do, so I ran." This is plainly a reference to seeing Mr Sutton holding her mother at some point after they left the house. She said that when she started to run away she could not remember where Mr Allen was. I reminded B that after she had run away and got to the road she eventually came back to the gate. She agreed that this happened. I then asked, "And when you got back to the gate, can you remember if you saw Keith or not at that time?" She answered, "No". The importance of this question and answer will become clear in due course. In cross-examination it appeared that the half she could not remember was, in effect, those things that she had told the police about.

1. The questioning then continued -

"Q. So it's the case now, isn't it, that its difficult for you, if we ask questions about it now, to go back and recall what you told the police is completely accurate or not?

A. Yes.

Q. That's something that would be difficult for you to be able to do?

A. Yes.

Q. And is that because two years have passed?

A. Yes.

Q. And is it also because you have tried to put some of these events out of your mind?

A. Yes."

In light of this evidence, it is clear that the real question is whether what B told the police during her two interviews was reliable.

1. B's account started with the events of the afternoon, when she was playing with a tortoise near Mr Allen's caravan. She said that when they went to the shop Mr Sutton met a man nicknamed Loose Tack (a relic of his rugby days) who, as it happened, had assaulted Mr C, B's father, and had a brief conversation and then returned home. She said that her mother and Mr Allen found out about this. She said Mr Allen hated Loose Tack because he (Mr Allen) was a very good friend of B's father. An argument started in the kitchen with Mr Allen saying that he could not believe how he "shook hands with the man who nearly bashed your [sic] dad to death". B said they started arguing about who paid the more tax. B said that she then went outside. It seems that these exchanges took place shortly after B and Mr Sutton returned from the shop, because B then spoke of Mr Sutton working out at the kennels and her mother cooking dinner and then she, her mother and Mr Allen sitting at the table with Mr Sutton's dinner in the oven. When Mr Sutton came in he complained about not knowing that dinner was ready and "started to get really agro" he demanded his dinner and a chair but he didn't sit down, just eating and complaining about the food saying that the dogs were fed better than this. B said "he was really agro and then they all started to fight and stuff like that."

1. (Ms A was questioned about B's version of events in the kitchen but, in substance, adhered to her account. I am inclined to think that B's recollection is mostly correct, although I am sure that she had forgotten about the dancing and Mr Sutton's objection to it. I have not attempted to resolve this issue as I do not think that it is significant.)

1. B said that Mr Allen then went outside, followed by Mr Sutton. B went to the outside toilet nearby. She heard Mr Allen and Mr Sutton arguing and so she went to her mother, who was in the house on the telephone. Her mother came out. At that time Mr Allen and Mr Sutton were, as she first described it, hitting each other with sticks. She corrected this a little later to say that she did not think that it was sticks, "it was actually, Keith had a baseball bat". (Ms A said that she did not recall seeing a baseball bat being used but it was possible she had forgotten. She said that bats were there.) B said that her mother stepped in and Mr Sutton started to attack her with a stick. She fell over, "because Todd pushed her or something" and B ran up to help her mother. She and her mother moved away a little. B then gives a somewhat confused account about the use of what she called the axe but which was plainly the blockbuster. She was not sure who started with the implement but she said her mother and Mr Sutton swapped and then her mother and Mr Allen started swapping. She said she didn't think anybody got hurt with the "axe". She said "they were just swinging it around. And then um, Keith had the axe and Todd had a rock... And Todd was teasing saying, 'Oh yeah hit me with your best shot' and stuff like that, but I don't think Keith did." She then said that Mr Sutton started to "push mum and stuff like that, Keith went and got the gun. And they were inside at the time, and that is when I walked off".

Sunset and twilight

1. It was now about sunset. Before resuming the narrative, it is useful to deal with the evidence that concerns the time of these events and the ambient light. This evidence is uncontroversial. Shortly after Mr Sutton had been shot and killed, three calls were made to 000: the first at 8.14.28pm (which was interrupted); the second, immediately after, at 8.14.47pm; and the third at 8.41.06pm. The earlier calls were made by Ms A (taking 2 minutes 23 seconds) and the last by Mr Allen. As to when Ms A went outside in response to B's telling her about the fight, the records show that a call was made commencing at 7.53.10pm and ending at 8.02.32pm. It follows that the whole course of violent events, culminating in the death of Mr Sutton, took no more than twelve minutes, probably (because Ms A had to find the telephone which had been thrown into the yard by Mr Sutton) nine minutes.

1. According to the certificate from Geoscience Australia, the time of sunset on 4 December 2010 was 7.57pm and that of civil twilight was 8.25pm. So far as the former time is concerned, it is defined as occurring when the upper edge of the sun is coincident with an ideal horizon. The property, however, is only a few kilometres from hills to the north west, which would, of course, have an additional shading effect. So far as the latter time is concerned, evening civil twilight is defined as the instant in the evening when the centre of the sun is six degrees below an ideal horizon. As the report says -

"At this time in the absence of moonlight, artificial lighting or adverse atmospheric conditions, the illumination is such that large objects may be seen but no detail is discernible. The brightest stars and planets can be seen and, for navigation purposes at sea the sea horizon is clearly defined."

In the present case it is necessary to take into account the low storm clouds which were present (the police arrived at the scene at about 9.00pm at which time it was drizzling with rain), which would, of course, significantly limit the amount of ambient light otherwise being reflected from the sky. Accordingly, there is objective evidence that, at the time of the altercation in the yard, it was well on the way to dark. When the shots were fired the light was almost certainly as described in the definition of twilight.

The threat to kill

1. I now take up the narrative at the point when Ms A has been chased into the house by Mr Sutton, breaking the inside wall with the force with which he opened the door after her. Ms A's evidence was that Mr Sutton said "I'll show you bitch" and, forcing her against the refrigerator in the kitchen, grabbed her around the throat with his left arm and, getting a knife, held it at her throat with his right hand. He pushed her out of the back door, using her as a "shield", and shouting, "I'll show you bitch, I'll show you bitch, I'm gunna kill her, I'm gunna kill her". She said that B was yelling to her to run away. (In the walkthrough it appeared that she thought that B was in the house at the time that Mr Sutton got the knife but this is less clear in her evidence, which I take to be that B was outside yelling and it was then that Ms A yelled at her to get away. Nothing depends on this.) She heard Mr Allen say, "For Christ's sake, just let her go, let her go". Mr Sutton shouted, "I'll kill you bitch, I'll kill you bitch". In the walkthrough, she said that as Mr Sutton was pushing her out of the house he was yelling to Keith, "I'm gunna kill her, I'm gunna kill her". Ms A said in her evidence that when she heard Mr Allen shout out, "For Christ's sake, let her go" she did not know where he was but she thought that he was out the back somewhere. She said that she was being strangled, she was nearly unconscious and could not speak because he had her so tightly around her neck.

1. Mr Allen said that, after Mr Sutton followed Ms A into the house they came out and he was holding her with a knife at her throat. Mr Sutton had an arm around her but, in effect, Mr Allen could not see exactly where it was because he was at his caravan about 50 metres away. Mr Sutton was dragging her to the concrete slab where the cars were parked. It was dark but "there was a bit of light". He went and grabbed the .22 because he knew he couldn't stop him without the rifle. Then he got the gun and walked down towards them. It was already loaded so he did not have to reload it. Ms A was struggling and screaming but Mr Allen did not remember all the words. He remembered Mr Sutton saying, when he took the rifle, "You're scared of me, senile old fool". He said that he didn't know whether he said anything to Mr Sutton before he fired but that Mr Sutton had told him "I'm going to kill her". He said to police at the walkthrough that it was hard to tell how far away he was from Mr Sutton and Ms A when he fired the first shot but he indicated a distance of about 13 metres or so. At first he told police that he did not remember firing a warning shot although he might have done so but then said that the first shot he fired was that which struck Mr Sutton in the shoulder.

1. It is necessary to deal with B's evidence in rather more detail. I start with her answers in the first interview, taking up the account from where she saw Mr Sutton pushing her mother on the ground, getting up and going into the house. B said that, when Mr Sutton and her mother were inside, Mr Allen went and got the gun and "that's when I walked off". (She thought he got it from what was called the "dog caravan", about 30 metres or so further from the house than Mr Allen's caravan, whilst Mr Allen said he got it from under the bed in his own caravan. I discuss the timing below. As to where the gun was, that does not seem to me to be important.) The interview continued -

"Q58. Todd?

A. Yeah. Todd started to ah, like push mum and stuff like that um, Keith went and got the gun. And they were inside at the time, and that's when I walked off

Q59 Who was inside?

A. Ah mum and Todd. They went down to the house and I was there for a bit when he let one shot off but that was just to test the gun, and then I went down. And then, um, ah, he let one off, but I'm not sure if that got him or not. And then that's when I heard, ah, Todd say, um, "No I don't want to die". And then another shot went off and it just went silent.

Q60 O.K. And what did you do then?

A. Um, I came back up from when I was down the road and um, I came back up the road and mum was crying, 'cause she didn't know where I was, 'cause I just went off. And um, and she came down for me, and I saw Todd laying down, and then we just came up to the lounge and were sitting there and then you guys came."

It will be seen that from question 58 onwards it appeared that B was giving a sequential description of the events, although she omitted to mention at this point anything about Mr Sutton holding her mother around the neck and moving her towards the concrete slab.

1. The officer went back to the beginning, as it were, and took her through those events asking questions designed to elicit more details. Going on to the point when B was on the road outside the gate and was about to walk up to the house, B mentioned seeing Mr Sutton with his arm around her mother's neck, "like, carrying her". The interview continued -

"Q 172. ...they came back outside?

A. Yeah

Q 173. O.K.

A. And, like, Todd had her. Um, like say if Keith had the gun or something and threatened to shoot him, he had, I'm just saying how he was holding her, like if he had the knife saying, 'If you shoot me I'll kill her' or something. That's how he was holding her. Like, his arm around her neck and push, pushing her against him.

Q174. OK. So, so Todd had his arm around your mum's neck?

A. Yeah.

Q 175. And she couldn't get away?

A. No.

Q 176. So - - -

A. And that's all I saw, and then um oh, he, I think he already had the gun out.

Q. 177. O.K.

A. And then um, I walked away. I just like when they went inside, I walked down, but when I was walking up that's when I saw her, her, his arm around her."

1. When B was giving this description, she gestured with her right hand, as though she held a knife at her throat in a cutting motion. She later said that she only saw Mr Sutton and her mother from behind and did not see the knife. From this account, whether B actually saw Mr Allen with a gun at this point is uncertain.

1. The officer took up the interview as follows -

"Q 180. O.K. And so when they came outside the house he had his arm around her neck?

A. Yeah.

Q181. O.K. And is that when Keith went and got the gun?

A. Ah, no, he had, already had the gun I think. And then um, I think he shot him in the shoulder.

Q182. Pardon?

A. I think he shot him in the shoulder, 'cause he, I could hear him like going "Ow" and stuff like that, because I didn't think it was that severe. And then after that um, when, when I walked down, when I heard him say, "Please, I don't want to die", and then another shot went off and it all just went silent ... Then nothing happened."

1. I should mention at this stage that I consider, had B actually seen the shot to the shoulder or the circumstances in which the second shot was fired, she would have mentioned it at this stage. Her language, moreover, is cast in terms that, in effect, state that she heard rather than saw these events. This interpretation is confirmed by her demeanour at this point, which, because of the importance of this issue, I have looked at carefully several times.

1. The officer took B back to the earlier gunshot "to test the gun". B confirmed that she saw him do this just outside the caravan and indicated how the rifle was held, using both arms raised as though holding a rifle. The officer then asked -

"Q191. Ah hmm. And then what did you do after he tested it?

A. I, um, I stayed there and um, I was like sort of tripping, 'cause I was crying too much and I had a really bad headache, and I couldn't see properly.

Q192. Were you scared?

A. Yeah.

Q193. Ah hmm.

A. And I felt really sick.

Q194. Is that when you started walking down the road?

A. Yeah.

Q195. And that's when you heard Todd say, "I don't want to die"?

A. Yeah.

Q196. And then you heard the second shot?

A. Yeah

Q197. O.K. But you didn't see what happened with that?

A. No."

This last question and answer confirm my understanding of the effect of her earlier description of events.

1. B's second interview occurred on 17 December 2010. She was asked to repeat what had happened on the night of 4 December 2010. The interview commenced with an exploration of background matters not presently relevant. As to when Mr Allen got the gun and what followed in her account is as follows -

"Todd got her and pushed her to the ground and I, and I ran again [down the driveway I think] and then after that I went, well not after that, when they were still fighting Keith went and got the gun from the dog caravan and then I was up at the caravan at that time when he went and got the gun and then he let one off to test the gun and then I went out and Todd had mum and he, took her inside and I went to the gate and mum told me that he had a knife to his neck, had a knife to her neck, and was saying "I'm going to kill you, I'm going to kill you" and then he, then Todd came out still with the knife to, to her neck outside and Keith had to do something so I am not sure if, I think he just let one off and then he let go or shot him in the arm or something because I can hear like, really bad pain, and like, no and no and stuff and then when I, that was when I was out of the gate, 'cause I could hear it and then after I heard Todd say no I don't want to die, I don't want to die and then one, another gun shot went off and everything was silent and I stayed down the, because I went down the road and stayed there for about ten minutes and after that shot went I stayed there for five minutes and mum didn't know where I was and she was crying so I, I came back through the gate and then mum came running down and I saw Todd just laying there and then we went back up the lounge and we sat down and then the police came."

1. When taken back to what happened after Mr Sutton and her mother were struggling on the ground, she said that she did not actually see them go inside the house because by this stage she went out the front gate (that is to say to the road). She said that Mr Allen got the gun whilst she was checking the telephone in the caravan to ring the police. However, it was not working. At this time she did not know where her mother and Mr Sutton were and could not hear them. When Mr Allen came back out (of the dog caravan) he was holding the gun in the air and "just let one off to see what it was like, if it had bullets, or to see if it was working". She said she thought this was the reason because "he was just looking and he's just like bang". She said that she'd never seen that gun used before by Mr Allen, her mother or Mr Sutton although people who had visited the property to shoot kangaroos for the dogs used it. She said that once he let the round off she went out the gate because "I knew something bad was going to happen so I didn't want to see it so I just went out the gate". B thought that her mother and Mr Sutton were inside when Mr Allen got the gun. The next thing that she saw from outside the gate was Mr Sutton grabbing her mother and pushing her out with the knife to her neck. She said that her mother was stumbling. He had his right arm around her mother's neck though she could only see them from the back. She said that Mr Sutton had her mother in front of him as distinct from beside him. She described the knife as a large kitchen knife with a black handle and silver blade used for chopping pumpkins and stuff like that. He held that knife in his left hand. She could not hear anything said but she thought that Mr Allen was yelling out, "let her go, let her go". She said that she could see him near his caravan. She then walked further down the road then came back and went further down. She just wanted to hear that everything was "alright" for her to go back in. She was asked -

"Q362. So what could you hear that made you sort of go back up and then you saw that?

A. Like, well, it wasn't actually, it was actually quite quiet for a while when I couldn't hear anything so that's why I went but then I heard them screaming and I saw them but I couldn't really actually see them. I like, blacked out, I couldn't see anything, it was like I dreamed that I could sort of see and then I came back, went back down and I was crying too much and I went back down then I came back up again and then, then after that gun shot went off everything was silent and that's when I stayed there for five minutes then I went back up and then everything was silent so I just went back in.

Q363. Alright. So after you saw this and you left to go back down the street what was the next thing that you heard?

A. Keith yelling out to let her go.

Q364. O.K. Yes and what was the next thing that you heard after that?

A. The gun shot."

B said that she was out of the driveway and down the road (from the gate) but not very far. She said that she walked about 100 feet or so away from the house and that she was away about 20 minutes, walking back and forth. She said that once she heard the second shot she stayed there for about five minutes and walked back. As she did this, her mother was walking down and then she saw Mr Sutton lying there and started crying even more. They went up and sat on the lounge.

1. This passage is hard to interpret with any confidence: it seems the screaming and B's being unable to see anything occurred after the shot to the shoulder was fired. I think that it is probable that, having regard to the earlier passage from this interview, set out above, B was saying that she did not, perhaps could not, see the circumstances in which the second shot was fired. This view, again, is confirmed by my observation of the way she said this in the video. The officer asked her what she heard, not what she saw, no doubt because of what she had said in B's first interview as well as what she understood B to have been saying thus far. However, B almost immediately gave an account, hitherto not mentioned, to the effect that she saw the second shot being fired. I will come to this part of her evidence, on which the prosecution placed great reliance, after I have dealt with the evidence of Ms A and the statements of Mr Allen as to the shooting.

The death of Mr Sutton

1. Ms A's evidence of the events after she was taken from the house is to the following effect. It was somewhat abbreviated because of her emotional state. She obviously found it very painful and difficult to recall these events. She said Mr Sutton had taken her from the house and pushed her ahead of him with his arm tight around her neck and the knife to her throat, moving to the concrete parking slab. The next thing she could remember was Mr Sutton saying, "He shot me in the shoulder". She did not hear a shot and only had "very fuzzy" vision of what was happening. But Mr Sutton did not release her and continued to hold the knife at her neck. After a short time, which she was unable to specify, she remembered being let go and dropping to the ground and that Mr Sutton was on the ground. She said that Mr Allen told her to get the phone, ring the police and go and get B.

1. In her walkthrough account, Ms A said that Mr Allen was telling Mr Sutton, "Come on mate, stop being a dickhead and all that". She said that Mr Allen was near the pumpkin patch (about 20 metres away according to the police sketch of the scene) when Mr Sutton took her between the back fence and the edge of the concrete slab until they were standing approximately two metres in. Mr Sutton repeatedly threatened to kill her. (It is worth noting, I think, that two vehicles were parked on the slab, behind which Mr Sutton could have sheltered if he were actually afraid of Mr Allen's rifle. It is likely that he was not then aware of the weapon.) He moved well beyond the cars and within clear sight of Mr Allen. Ms A said that Mr Allen had "come down a bit closer" and fired a shot into the ground or into the air saying, "Let her go, let her go". She said that she was not struggling or wrestling because he had the knife. (Ms A also said that B heard the warning shot and was then running down the road but I think this is what B later told her.) At this point it was nearly dark. She did not know how far away Mr Allen was because she was choking and starting to lose consciousness. She heard a shot and Mr Sutton say, "He shot me in the shoulder". It could have been five or ten seconds later that he dropped to the ground.

1. Ms A said that she then ran towards Mr Allen who told her to "just leave him be, ring the police and go and get your daughter" who, by this time, was screaming and running down the road. She indicated, although with some uncertainty, that Mr Allen was standing about 15 metres away. Although Ms A saw B running up the roadway she could only make out her pink clothes which, of course, stood out. She said that she went to find the phone since Mr Sutton had ripped it off the caravan wall and thrown it away. It was about two or three metres away from where Mr Allen had been standing. She then made the 000 call to the police, saying that someone had been shot but not that he was dead or had been killed, although she believed this to be the case. This belief is unexplained. She did not examine the body. Possibly she saw the wound to the forehead and has now forgotten this. Most likely, I think, it was surmise on her part. She did not recall what she then did with the telephone but just ran down and got B, who was running up the driveway. They went around the front of the house and sat there on a lounge outside until the police arrived.

1. It was suggested to Ms A by the Crown prosecutor that, after Mr Sutton said he had been shot in the shoulder or at the time he said it, he released her. She denied this and added, "He choked me tighter" and was still holding the knife to her throat. He did eventually release her but not immediately. She denied that Mr Sutton had said, "I don't want to die" and also that after this was said he was shot the second time. She said that she did not hear Mr Sutton say anything after he had said he had been shot in the shoulder. There was no exclamation of pain: he just "squeezed me tighter". Ms A also said that she had been the victim of violence by Mr Sutton on a number of earlier occasions, always when he was in drink.

1. I now turn to Mr Allen's account of the shooting, taking up the narrative from where it was left above. He told police he would have hit Mr Sutton's right shoulder. He said that he was holding Ms A to his left, "That's why I got room to get the shoulder, her head was in the way before that". Mr Sutton said, "he's hit me in the shoulder." but he did not fall to the ground, Mr Allen, commenting, "A .22 you don't, no", obviously a reference to its light calibre. Nor did Mr Sutton drop the knife. Mr Allen said that when he fired the second shot "they both fell backwards". He did not know where the second shot hit Mr Sutton but he was aiming for the shoulder "so he'd drop the knife". When questioned further about the sequence of events, he said "I fired and it hit him in the shoulder I think and he was still, still going to cut her throat and then I fired again and that was it. I thought I shot her". When asked about where he was standing, he said he could not do this because "things were happening, you know what I mean, screaming - its very hard for you to take, you know what you guys want, I can't give you because it was too, too much screaming happening, you know what I mean." He said that, when he fired the rifle, it was to his shoulder and he was intending, "to shoot him, stop him from cutting her throat". The two shots were not long apart, seconds rather than minutes. He had experience with guns some years ago but not much experience with that particular gun, only having fired it three or four times. He said that when Mr Sutton and Ms A fell backwards after the second shot he said he "could see what's happened" and said to Ms A to "go inside and ring the police". He was asked, "The time you fired those shots, can you describe what emotions you were feeling?" and replied, "I had none at the time, there was too much screaming. I was worried about the child and it was though she flipped out you know, you know the deep, not just a scream, she was in a frenzy." He was asked if he knew whether B had seen what had happened and said, "Yes, 'cause she was in the house when he had dragged her out of the house" so that of course she would have seen this happen. He said that he did not know that she had seen the shots because she was running down the driveway when (as I understand him) Ms A was on the slab being held.

1. Although Mr Allen said that he rang the police straightaway, it is clear that this was a mistake. He actually did not ring the police until some 25 minutes or so later. Mr Allen said that after the shooting and Ms A retrieved B he did not go over to the deceased. He said, "I just looked and knew he was dead and I backed off" and he told Ms A "to go inside once she got up". He didn't touch Mr Sutton but he "just looked like" he was dead. He said that he did not believe that there was any other way that the situation could have been resolved without using the gun because Mr Sutton was "too strong for us". He was asked about firing a warning shot and said that he fired a warning shot at the shoulder. He was asked about firing a warning shot into the ground or over his head and said, "No, you don't have time to consider when you see someone's going to get their throat cut". He was asked, "When you fired that shot were you pretty confident that you'd get him in the shoulder", and replied "No confidence whatsoever". At this point Mr Allen indicated discomfort about the bags over his hand and said that he was finished, that it was too upsetting, that he felt sick in the stomach and the interview terminated.

1. During the walkthrough, Mr Allen pointed, though with some uncertainty, to a place on the driveway about 13 metres or so from where Mr Sutton's body was found as being where he was when the first shot was fired. He had been standing behind a box about a metre high (which was still there and evident in the police photos) but, as Mr Allen said, "You could see them from the waist up". (When he was indicating these things to police, Mr Allen was obviously very upset.) Not surprisingly, he found it difficult to indicate with any certainty where he was standing.

1. Mr Allen said he moved closer to try to shoot Mr Sutton again in the shoulder to make him let go of the knife and indicated moving forward about 15 paces, saying that he stood "about here" when he fired the second shot. That would have placed him perhaps four metres from where Ms A was being held. He recalled, after Ms A had collected B, she came up to where he was sitting near the pumpkin patch and asked him to talk to B but, Mr Allen said, he told her "No, go back in there, keep her inside til the police get here". He said that he rang the police because he thought that, although Ms A had tried to ring, she was screaming and he thought she had not "got through". Mr Allen repeated that he was sure that he only fired two shots, the first shot hitting Mr Sutton in the shoulder and the second shot to try and get him to drop the knife.

1. I now return to B's third account of what happened after the first shot was fired to Mr Sutton's shoulder, taking up the interview from where I left it earlier -

"Q363. Alright. So after you saw this and you left to go back down the street what was the next thing that you heard?

A. Keith yelling out let her go.

Q364. O.K. Yes and what was the next thing that you heard after that?

A. The gun shot.

Q365. The gun shot. O.K. And what did you hear after the gun shot?

A. Silence.

Q366. Silence. O.K. So you've talked before about, you said before about you heard Todd saying that he didn't want to die?

A. Yeah.

Q367. Yes so when did you hear him say that?

A. Before the gun shot went off like, saying, "No, I don't want to die" and the gun shot went off and everything was silent.

Q368. So when, first of all, Keith tested the gun?

A. Mmm Mmm.

Q369. Yes and then so you've left - - -

A. Mmm Mmm.

Q370. - - - And then you've sort of come back up and you saw mum and Todd?

A. Mmm Mmm.

Q371. And you said that then you could hear Keith saying, "Let her go, let her go". Now what happened between that or did anything happen between then and when you heard him say he didn't want to die?

A. When Keith said, "Let her go, let her go", I think he let one off and then he let her go, a gun shot off and then Todd went to where the cars are and then he's like, "No I don't want to die, I don't want to die", then a gun shot went off and everything was silent.

Q372. O.K. And how do you know that he went to where the cars are?

A. Because I saw him.

Q373. You saw him?

A. Because I saw him when mum came up, well I actually did see Keith shoot him and like, he was sitting down and he was saying, "No I don't want to die" and then I saw Keith like that and then it went bang and I just - - -

Q374 All right so you heard the gun shot?

A. Mmm Mmm.

Q375. You heard him let one off and you said that you saw him?

A. Mmm Mmm.

Q376. And whereabouts did you see, whereabouts, actually what I might do is we might use a different colour again O.K. And so when you saw Keith shoot Todd and then he fell on the ground and he was saying he didn't want to die is that right?

A. No.

Q377. No?

A. He was already on the ground, Todd was with his elbow and he's like, "No I don't want to die". Then he fell back after the gun shot went off.

Q378. O.K. So---

A. I'll just make the whole car thing.

Q379. O.K. So what's that a picture of can you tell me?

A. Todd laying down and Keith with the gun.

Q380. O.K. So I just---

A. And mum - - -

Q381. - - - want to make sure that I get it right and I'm not confused O.K? So when, first of all you said that you think you heard him let one off -

A. Mmm Mmm.

Q382. - - - and that's when Todd let go of mum - - -

A. Yep.

Q383. O.K. Did you see that bit happen?

A. No.

Q384. No. O.K. Whereabouts were you when that part happened?

A. Still down the road but not that far. I could hear everything.

Q385 Alright and so what made you come back to the house?

A. Because I couldn't hear anything and so then I came up but then I heard the gun, I saw Keith with the gun and then the gun shot went off so I went back down then I came back up and I looked and then everything was silent so I came back up.

Q386 O.K. So when you came back up and you saw that Todd was on the ground and he was saying he didn't want to die?

A. Yeah.

Q387. Where was mum?

A. Mum was up here sitting on the seat.

Q388. Can you mark her down for me?

A. The seat.

Q389 O.K. And whereabouts were you when you saw that? How far away were you when you saw that happen?

A. Just at the gate

Q390. Just at the gate O.K. And was there, could you see straight to where that happened or was there anything in your way?

A. There was a bit of branches.

Q391. O.K. But you could see where everyone was?

A. Yep.

Q392. O.K. And can you tell me when Todd was on the ground he was saying I don't want to die, what was Keith doing? Was he standing up, sitting down?

A. Standing up.

Q393. He was standing up and how was he standing?

A. Just like that.

Q394. So can I get you to stand up for me and show me how he was standing?

A. Like, like that.

Q395. Like that O.K. And when you go like that what was he holding?

A. The gun.

Q396. He was holding the gun. O.K. And where was the gun pointed?

A. At him.

Q397. At him? At?

A. Todd.

Q398. Todd. And then, O.K. And then what happened when you saw him standing there with the gun? What was the next thing that happened?

A. Gun shot, silence.

Q399. Gun shot then silence. O.K. And what did Keith do when that happened?

A. I think, I, I didn't see that but when I came back he was sitting up next to mum.

Q400. O.K. So as soon as you saw that happen and the second shot and what did you, what could you see of Todd? What did Todd do when the second shot went off?

A. Let got of mum, oh the second shot?

Q401. Sorry, the second shot when you just said before that he was on the ground and Keith was standing up?

A. Keith, Todd was just laying down.

Q402. O.K. And how, what body parts was on the ground like, how was he lying?

A. Like, his head, his arms, his legs, his back.

Q403. O.K. Was he lying on his stomach or his back or something else?

A. His back.

Q404. His back. O.K. And could you see anything different about him?

A. No.

Q405. No. And could you see him moving at all?

A. Nah.

Q406. No. Alright and is that, did you see anything else before you left and went away?

A. No.

Q407. No. O.K. So as soon as you saw that happen what did you do?

A. As soon as I saw?

Q408. As soon as you saw that second shot - - -

A. Yeah.

Q409. - - - you said that you went away then again?

A. I went down for five minutes and came back up.

Q410. Then you came back up and what could you see when you got back up?

A. Mum was crying and Todd was just laying there.

Q411. And was Todd laying the same, in the same position as he was when you left?

A. Yep.

Q412. And where was Keith?

A. Up sitting next to mum.

Q413. O.K. And what about the gun? Could you see where the gun was?

A. No.

Q414. No. Alright and then what was the next thing that happened?

A. Mum came running down to me and cuddled me and we went to the lounge out, pardon, our outside lounge and we sat down there and waited for the police to come.

Q415. O.K. And did you talk to mum about what had happened?

A. No."

After some further questions the officer asked whether the time between the first shot and the second when Mr Sutton was already on the ground, "Was it a long time or a short time?" B replied, "A short time".

1. B was taken through the sequence of events again and then asked how she knew that on the second shot Mr Sutton had let go of her mother and answered, "Because then I, because then I saw Todd walk down to the thing. So, yeah like, as soon as that shot went off I walked and then I saw him just walking ... like, very like, boom, boom, really angry and stuff". She added, "I just saw him walking down and then I didn't see the rest of it until when Keith had the gun". In a later description of this time she said that she saw Mr Sutton stomping "and then didn't see the rest until when everything was silent again so then I went back up but then I saw Keith with the gun".

1. B was asked why she thought Mr Sutton was shot in the shoulder. She said -

"Because I could hear like really bad pain like, sort of when, when Keith went, let that one off to let go of mum I think he got shot in the shoulder because he was really, ah and screaming. He was like, no and that's why I think that caused him to say no I don't want to die."

A little further on, the following was said -

"Q455. - - - and then its gone quiet and you came back and you saw - - -

A. And then Keith with the gun and then - - -

Q456. - - - Keith with the gun and - - -

A. - - - then I walked - - -

Q457. - - - and Todd on the ground?

A. Yeah and then I walked off and the gun shot went off and then everything was silent for five minutes so then I went back up.

Q458. O.K. Alright and then that's when you met up with mum and came and sat on the lounge?

A. Yep."

1. Although in fact two cars were parked on the slab at this time, B was not sure and could not remember whether there were any cars there. The officer then went over the same ground -

"Q482. And the last time that you had seen mum that she was with Todd at that point and that's when you went away - - -

A. Yep.

Q483. Yep O.K. And then you said that you saw, after that shot you saw Todd walking along - - -

A. Down to the cars.

Q484. - - - down to where the cars are? Yes and you said the next thing that you saw him on the ground. How did he come to be on the ground?

A. Well I think, as I said that he might have got shot in the shoulder but that he just came to the ground.

Q485. So you didn't see him go onto the ground?

A. Yeah nah.

Q486. O.K. So you've seen him walking - - -

A. Yep.

Q487. - - - but then the next time you saw him - - -

A. Yep, yep but when Keith had the gun I saw him on the ground.

Q488. O.K. And other than hearing him say, "No I don't want to die" did you hear anything else being said between Keith and Todd at that time?

A. No."

B said that her mum was sitting on the seat for the whole time that this was happening. I should mention that when describing how Mr Allen fired the final shot, B held her right arm straight at an angle of about 45 degrees, using her fingers as though she was holding a pistol, which was in marked contrast to what she indicated when showing how Mr Allen had held the rifle when he fired the "testing" shot.

1. B was then asked about times. She said that it was about 20 minutes between the time that Mr Allen fired the testing shot to when he fired the first shot at Mr Sutton.

Crown submissions

1. The Crown prosecutor submitted that I would accept B's evidence as to the circumstances of the infliction of the head wound and conclude therefore that Mr Allen, perhaps carried away in the heat of the moment or by way of a preemptive strike in case Mr Sutton recovered and attacked Ms A or him again, killed him when he was no longer, as any reasonable person would have realised, a danger. He submitted, in the alternative, that I should accept at least that Mr Sutton did say that he did not want to die and, at that time, he had released Ms A who was thus no longer at risk. He submitted that B could have heard, in the quietness of a rural setting, the words she said Mr Sutton had used. He pointed out that B was an honest witness. Moreover, she had shown that she was aware of the distinction between what she had been told and what she witnessed and the difference between truth and lies.

1. Referring to Ms A's description of being held like a "shield", the prosecutor submitted that I should accept that the accused had obtained the gun at an earlier point than he claimed and that Mr Sutton had reason to fear that Mr Allen might want to shoot him because of their previous argument concerning his shaking hands with the man who had so badly injured Mr Allen's great friend, Ms A's former partner.

1. The prosecutor also pointed to the autopsy report as to the position and the direction of the wounds as inconsistent with Mr Allen's account of events. He submitted that this showed that Mr Sutton's position had changed significantly after the first shot and provided strong support for B's evidence that he had walked away from Ms A following the first shot. Moreover, the fact that Mr Allen knew he was dead without examining the body strongly suggested that he had deliberately shot Mr Sutton in the head at short range as described by B.

1. Finally, it was submitted that, even if I concluded that it was reasonably possible that Mr Allen had fired both shots in defence of Ms A, I would be satisfied beyond reasonable doubt that it was not objectively reasonable to fire the second shot at Mr Sutton's head as distinct from one or other of his shoulders.

Conclusion

1. It will be seen that B's first two accounts of what occurred after the warning shot or testing shot was fired did not refer at all to seeing Mr Sutton on the ground at any point before she was taken by her mother back up to the house. Not only was it omitted but, in my view, these earlier accounts exclude the possibility that she saw this event. I am also of the view that those earlier accounts are inconsistent with her seeing Mr Sutton walk away by himself from where he was first shot. I accept that B believed, at the time, that Mr Sutton was shot in the shoulder but this was not because she saw it. Nor were there any circumstances that could have led her to think that this had happened. There were therefore only two sources of information in this respect. The first was the possibility that her mother had told her of this before the police came whilst they were sitting on the lounge at the front of the house. However, B, in effect, denies that this was the source of her belief. The only other possibility is that she heard (but has forgotten) Mr Sutton say that he had been shot in the shoulder. It is also of considerable and troubling significance, to my mind, that B's second interview occurred something like two weeks after the events in question.

1. It is necessary to take into account some objective facts. First, it is clear from the timing of the phone calls that, from beginning to end, the entire incident could not have taken more than 10 minutes. Secondly, it was quite dark by the time of the shooting, even allowing a generous period of three or four minutes before Ms A telephoned 000 for the first time. This is something like 15 minutes before civil twilight at which time, as I have mentioned, in the absence of moonlight, artificial lighting or adverse atmospheric conditions (this latter feature undoubtedly being present), the illumination enables large objects to be seen but no detail is discernible.

1. When the police officer went to the property on the following day at 8.15pm, in an attempt to record the light, she recalled that it was dark, that she could not have read a newspaper and that, without the benefit of artificial light, one could only see silhouettes of people and then only if they were against a light background. She said that at 30 to 40 metres she did not believe that anyone could have been seen unless they were silhouetted. She said that it was not raining at the time although, from the video that she took, the rain clouds seem very much evident and quite low. That view, making allowances for the fact that it is a video and not the human eye, confirms my own observations at the view which was conducted during the trial that, for a significant period before the light appeared to match that of the description in the expert's report, it was exceedingly difficult to see any details. I viewed the slab at the point indicated by the investigating officer as being where Mr Sutton lay and a detective stood there for this purpose. I moved along the gate and down the road until my view of the slab was completely obscured by blue plastic placed along the outside dog run. I was informed, as is obvious from the photographs taken at the scene and exhibited in the trial, that this feature was the same as at the date of the incident. It was necessary, of course, to bend down to what seemed to me to be the height of B as shown in the video recording of her interviews. When I did so, I concluded that it was not possible for B to have seen, from the gate or anywhere down the road looking back up into the property, Mr Sutton either sitting up or on his elbow or lying down on the slab where his body was found.

1. It is, moreover, difficult to accept that Mr Sutton fell to the ground because of the shot in the shoulder. That was not by any means a serious injury, although it was probably painful. I accept Ms A's evidence and the statement of Mr Allen that it did not lead him to let go of Ms A or to drop the knife. The overwhelmingly more likely cause of his fall to the ground was the second shot to his head. This scenario is to my mind far more likely than that described by B as an explanation for Mr Sutton being on the ground. Of course this would mean that he was at no point sitting up or on his elbow but rather fell to the ground almost certainly dead.

1. The extensive passage from B quoted above also gives a somewhat confused and, to a degree, inconsistent chronology of events.

1. Putting all these matters together, as well taking into account my own impression of B's interviews, which I have closely examined from beginning to end a number of times, I have concluded that I could not be satisfied to any reasonable degree of certainty that her account of seeing Mr Sutton on the ground, whether sitting or on his elbow or supine is a reliable recollection. Strengthening this conclusion is her inability to describe what happened from the time she said that she saw Mr Sutton walking away by himself from Ms A and his being on the ground. To this I add her own telling description of her feelings and experience at this time, vividly recounted in her answer to question 362 set out above. I should mention, also, that I am quite satisfied that, from the gate or from along the road, B could not have seen the seat or her mother sitting on it which she has described.

1. Two other parts of B's evidence are important to note. The first is her recollection of hearing Mr Sutton say, "I don't want to die, I don't want to die". I have concluded that this recollection is not reliable. It is necessary to bear in mind what she was feeling at the time, which I have already mentioned. It is notorious that, when perceptions occur in frightening or emotionally laden circumstances, especially of events that are rapidly unfolding, they are often very significantly distorted and misremembered. There is a substantial risk of confabulation and even apparently striking events can be mistakenly recollected. These are commonsense considerations which are of considerable significance in a case of this kind. Necessarily, one's doubts are compounded if a witness (such as B) has demonstrably confabulated other circumstances which are vividly described and, at first blush, one would be minded to accept. My strong suspicion is that, indeed, B did hear Mr Sutton say something after he had been shot. Possibly it was his complaint about being shot in the shoulder (which was the source of her knowledge about this wound); if she did not hear it distinctly, which is very likely from where she was standing about 50 metres away, she might well have reconstructed what was said. It is not impossible that the words "want to die" were used but it is also reasonable to surmise that they were not used of himself but in relation to Ms A. This is so, even though neither Mr Allen nor Ms A say that such words were used. Both say, however, that words amounting to threats to kill Ms A were used and I accept that this was so. In short, I do not accept as reliable B's recollection of hearing Mr Sutton say, "I don't want to die, I don't want to die".

1. In this analysis of B's evidence, I left out of account Ms A's evidence and what was said by Mr Allen which, as I largely mentioned, I found was substantially truthful as to the crucial facts. So far as Ms A is concerned, although the circumstances of the physical altercation that occurred before she went inside followed by Mr Sutton left out a number of details which were described by B, I do not think that this adversely affects the basic truthfulness and reliability of her account. What happened after she was chased into the house by Mr Sutton was obviously a terrifying experience and that she omitted some of the details of preceding events when giving her account to the police or indeed in this Court is not surprising. She said that both she and Mr Sutton dropped to the ground after Mr Sutton had been shot, obviously for the second time, although she did not hear that shot. In substance, her account is inconsistent with Mr Allen shooting at Mr Sutton after this event and, of course, inconsistent with B's later elaborated recollection. In substance, also, Ms A's evidence is inconsistent with sitting nearby whilst Mr Allen fired that second shot, let alone sitting with him after this event. I accept that after finding the phone, which took a couple of minutes no doubt and making the call to 000 which took only a little over two minutes, she immediately ran down to B, who was on the road, I think moving towards the gate. So far as the warning shot is concerned Ms A said that she did not see or hear it. That is consistent with B's account if she was in the house and being manhandled by Mr Sutton who was then threatening to kill her. Mr Allen's statements about this matter seemed to waiver at one point but, in the end, he was sure that he fired only two shots. I think that it is not impossible that he fired a warning shot as Mr Sutton was chasing Ms A into the house or shortly after that, as stated by B, and that it was for this reason that Mr Sutton dragged Ms A outside using her body as a shield. If this were so, then Mr Allen's account is either dishonest or a failure of recollection, given the nature of the events that happened. Realistically, I think that Mr Allen, for some reason, decided he would not mention this shot. It is difficult to understand why he would not, since firing a warning shot, one would think, would tend to explain why it was necessary to shoot Mr Sutton, as he disregarded not only the shot to his shoulder but the earlier warning shot and maintained both the threat and the ability to carry it out until the final shot. Be that as it may, in the end I am not satisfied that this adversely affects in any significant way Mr Allen's account of the two crucial shots.

1. In short, although B's accounts are by and large reliable, I was not satisfied that those parts that dealt with the shooting and the closely surrounding facts could be relied on.

1. So far as the autopsy results are concerned, I do not think that they can be relied on in the manner contended by the prosecution. It was not a static situation. I do not think it could safely be concluded that Mr Sutton remained in the same position when he had been shot and Mr Allen himself moved after the first shot and not certainly simply straight towards Mr Sutton. Moreover, the actual direction of the second bullet before it struck Mr Sutton is conjectural. The range of possible angles is such that no conclusion could be safely drawn as to where Mr Sutton was standing relative to Mr Allen at the time the shot was fired, let alone that Mr Sutton was no longer holding Ms A.

1. Mr Allen must be acquitted if I accept that there is a reasonable possibility that he acted in defence of Ms A and that the force he used was reasonable in all the circumstances. It must be borne in mind that there was no time for careful or dispassionate reflection. Mr Sutton was drunk and enraged. It is not reasonable to think that Mr Allen should not have taken his threats to kill Ms A seriously. To the contrary, his belief in their genuineness was completely justifiable. He made a judgment call. So far from it being wrong, let alone criminal, it was almost certainly right. In this context, the fact that he believed he had killed Mr Sutton without examining him, is inconsequential.

1. Accordingly, not only am I not satisfied beyond a reasonable doubt that Mr Allen did not act in defence of another and the extent of force used was unreasonable, I should state in fairness to him that I have positively concluded that he acted from beginning to end to prevent Ms A from suffering very serious injury and possibly death at the hands of Mr Sutton and did so reasonably, considering the means that he had at his disposal. Accordingly, the appropriate verdict was not guilty.

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Amendments

12 June 2013 - Typographical errors

Amended paragraphs: 3, 7, 9, 14, 26, 27, 36, 38, 39, 42, 43, 45, 47, 49, 53 & 55

Decision last updated: 12 June 2013