R v NI
[2020] ACTSC 137
•28 May 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v NI |
Citation: | [2020] ACTSC 137 |
Hearing Dates: | 25 – 26 May 2020 |
DecisionDate: | 28 May 2020 |
Before: | Elkaim J |
Decision: | The accused is found not guilty on each count in the indictment. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judge Alone Trial – Threat to kill – threat made to forensic psychiatrist – threat alleged to be in the present tense – contrary evidence of the accused – assertion of past tense – verdict |
Legislation Cited: | Crimes Act 1900 (ACT) s 30 |
Cases Cited: | Mason v Demasi [2009] NSWCA 227 |
Parties: | The Queen (Crown) NI (Accused) |
Representation: | Counsel C Wanigaratne (Crown) K Musgrove (Accused) |
| Solicitors ACT Director of Public Crowns (Crown) Prudential Legal Solutions (Accused) | |
File Number: | SCC 306 of 2019 |
ELKAIM J:
This is a judge alone trial pursuant to s 68BA of the Supreme Court Act 1933 (ACT).
The accused is facing three counts in an indictment dated 13 December 2019. He has pleaded ‘not guilty’ to each count.
The first count in the indictment is:
Count 1: On 23 August 2019, the accused made a threat to Dr Antonella Ventura to kill ‘N’, intending Dr Antonella Ventura to fear that the threat would be carried out, or being reckless whether or not Dr Antonella Ventura would fear that the threat would be carried out, and the threat was made without lawful excuse and in circumstances in which a reasonable person would fear that the threat would be carried out.
Counts 2 and 3 in the indictment are in identical terms, save that the threats to kill concern two different individuals, namely ‘B’ and ‘T’ respectively. Essentially, each count arises from statements made by the accused to a psychiatrist. Although each count must be treated separately, in this particular case, the counts will rise or fall together.
Before looking at the evidence it is necessary to state the legal principles that I must apply before arriving at a verdict.
The elements of an offence under s 30 of the Crimes Act 1900 (ACT) are as follows:
(a)The accused made a threat to Dr Ventura to kill a third person (being his wife and two daughters respectively);
(b)The accused intended to make that threat to Dr Ventura;
(c)The accused intended that Dr Ventura would fear the threat would be carried out or was reckless whether or not Dr Ventura would hold that fear;
(d)The threat was made without lawful excuse; and
(e)The threat was made in circumstances in which a reasonable person would fear that the threat would be carried out.
The Crown must prove its case beyond reasonable doubt. The accused is presumed to be innocent. Suspicion and probability must play no part. As long as there is a reasonable doubt, the accused must be found not guilty.
The Crown does not have to prove the truth of each fact that is asserted in its case. However, it must prove each legal element of the charge beyond reasonable doubt.
The accused worked for Westpac for many years. He worked hard and achieved a senior position. Some time before the alleged offences he left work due to mental health issues. He was considering resuming employment with Westpac. The bank’s insurer referred him to an organisation called MLCOA, which essentially provides assessments and medicolegal reports for insurers, employers and other persons involved in litigation. The purpose of the referral was to assess his fitness to return to work.
Dr Ventura is a forensic psychiatrist employed, on a part-time basis, by the above organisation. An appointment was made for the accused to attend upon Dr Ventura at 8:30am on 23 August 2019. The accused was a little late for the appointment, which actually started at 8:45am.
Dr Ventura was the first witness called by the Crown. She gave evidence about the appointment in which the alleged threats were made and her consequent actions. I will return to her evidence in detail below because it is essentially determinative of this case.
The next witness was Ms Kellie Friend, the Canberra manager of MLCOA. Ms Friend gave evidence about a conversation she had with Dr Ventura shortly after the interview with the accused. As will be seen below, there is a point of inconsistency between her evidence and that of the doctor.
The third witness was Constable Jeffery. He was the informant in the case. He was directed to attend the residence of the accused’s former partner. She was not home so he telephoned her and told her about the threats. Later in the day he went to the MLCOA premises and spoke to Dr Ventura.
Constable Jeffery also contacted the accused and arranged for him to attend an interview at the police station. There was some cross-examination about the accused’s response to the attempts to contact him, and also about the officer’s satisfaction that the accused was not a threat because he was not required to immediately attend a police station. I do not think these issues are of any substance.
The final Crown witness was Constable John. She also attended the former partner’s home and spoke to her on the phone. There was some cross‑examination of the breadth of the threats about which the constable had been informed, but again I do not see any significance in her answers.
This is really a case about what was said by the accused to Dr Ventura during his appointment with her.
Returning then to the evidence of Dr Ventura. She said that she asked the accused a number of questions and jotted down, in shorthand, his answers. Her normal practice was that after the interview she would use her handwritten notes to prepare a report.
Her notes are Exhibit A. Although the handwritten entries sometimes accord with printed headings and prompts, they do not necessarily do so. Thus, at the commencement of the notes is the heading P C. Dr Ventura said this stood for ‘presenting complaint’. Somewhat strangely for the beginning of an interview the entry is then “No violence” and “Not threatening people”. No satisfying explanation was given for the background to these answers.
Dr Ventura said she continued to ask questions, going through matters such as current medication, past physical and mental history and a personal history such as the accused’s school years and then going on to his marriage and his family.
There is an entry that says that the accused told Dr Ventura that his alcohol consumption was “3 bourbon & coke”. Dr Ventura could not say if this was a daily or other assessment. She did however say that there were inconsistencies. Perhaps she was referring to a later note where there is a reference, under past mental health history, that the accused “turned to alcohol 10 drinks/day”. If this is the inconsistency it is misconceived. Although the entry on page 1 could arguably be seen as inconsistent, the latter entry is plainly talking about an earlier time.
The accused, again as noted, when talking about his marriage stated “I was nasty, angry for not (indistinct) up”. It was suggested to the doctor that the indistinct word was ‘picking’ and referred to the date of separation of the accused from his partner. The doctor did not agree with this suggestion. She was reluctant to interpret her own handwriting.
A short time later the doctor has inserted this entry:
I feel like killing my wife so I will pick an ax (sic) & go to Bunnings and ax (sic) her. Storm house with gun - kill her & the kids in front of her - then kill her.
The just quoted passage contains the threats said to make up the three counts in the indictment.
Dr Ventura said that after the threats had been made she very quickly formed the view that the accused was serious and that his former partner and children should be swiftly informed so as to ensure their safety. Accordingly, she terminated the assessment and asked the accused to remain, presumably in the waiting area.
Dr Ventura said that she was alarmed at what he had said because of the manner in which he had spoken. She did not think he was mentally ill nor that he appeared frustrated. Rather he was calm and not agitated, deliberate and organised in his delivery of the plans.
Dr Ventura said that in assessing the threats she was, at least subconsciously, aware of the accused’s previous criminal activity, that he had made threats to others, that he had intimidated others and that he had a history of being “scary” to his wife. The doctor’s assumption that his previous breach of a family violence order concerned his wife was wrong. It had actually concerned the accused going to his daughter’s workplace. There was no suggestion of violence.
Dr Ventura said she felt frightened and that the accused was someone who could act on the threats. She needed to take action.
Dr Ventura said that having halted the assessment she went to speak to Ms Friend. After a brief conversation with another employee she was able to speak to Ms Friend. Having done so a call was made to 000 (Exhibit B).
Dr Ventura also said that when the interview was terminated the accused asked if he had scared her. He was said to have a “slightly intimidating” demeanour. By this stage the doctor was reacting to the statements she had perceived as threats to the accused’s family. I think it natural, but not indicative of any matter going to the accused’s guilt, that the doctor would have had this perception.
Under cross-examination Dr Ventura rejected the suggestion that the threats had been made in a historical context rather than as a future plan. In other words, the accused had not said, for example, “I feel like killing my wife”. He had said, it was suggested, “I felt like killing my wife” at an earlier time, immediately after their separation.
It is important to note that Dr Ventura was adamant that before making the threats the accused had said words to this effect: I know what I am going to do about (the anxiety that I now feel about my wife’s actions). Dr Ventura said he then went on to state what his plans were.
A number of issues arise from the evidence of Dr Ventura. These include:
(a)The notes made by Dr Ventura do not include the statement that the accused said he knew what he was going to do as a preliminary statement, or introduction, to the threats. These words are crucial to the issue of whether or not he was stating the threats as a future intent or merely as a historical opinion.
(b)Dr Ventura did not make the note about the threats as, or immediately after they were made. She made them after she had terminated the interview and when the accused was no longer present.
(c)Dr Ventura told the police officer who spoke to her later in the day that she had made the notes contemporaneously, as the accused was talking (Question 128, Exhibit D).
(d)Dr Ventura said that she immediately made up her mind, having heard the threats, that the potential victims must be told. Ms Friend said that when the doctor spoke to her, she (the doctor) was not sure what to do about the information. Ms Friend suggested that the police be called.
(e)Dr Ventura said that the notes she made were in shorthand but that the report that she created later would be more accurate. I find this evidence difficult to understand. One would normally have thought that contemporaneous notes would be the more accurate.
In regard to the accuracy of Dr Ventura’s notes, albeit in a civil context, the observations of Basten JA in Mason v Demasi [2009] NSWCA 227 are important. His Honour, at [2] set out a number of reasons why caution must be exercised when relying on a medical practitioner’s notes:
First, the trial judge was invited to discount the appellant’s oral testimony on the basis of accounts given to various health professionals, which appeared inconsistent either with each other, or with her oral testimony, or both. The difficulties attending this kind of exercise should be well-understood; as explained in the Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8], such apparent inconsistencies may, and often should, be approached with caution for the following reasons, amongst others:
(a)the health professional who took the history has not been cross-examined about:
(i) the circumstances of the consultation;
(ii) the manner in which the history was obtained;
(iii) the period of time devoted to that exercise, and
(iv) the accuracy of the recording;
(b)the fact that the history was probably taken in furtherance of a purpose which differed from the forensic exercise in the course of which it was being deployed in the proceedings;
(c) the record did not identify any questions which may have elucidated replies;
(d) the record is likely to be a summary prepared by the health professional, rather than a verbatim recording, and
(e) a range of factors, including fluency in English, the professional's knowledge of the background circumstances of the incident and the patient's understanding of the purpose of the questioning, which will each affect the content of the history.
For current purposes ‘(a)’ is not relevant. However, the balance of reasons may well play a part in this matter, in particular ‘(b)’. Dr Ventura was not conducting any sort of risk assessment. She was involved in assessing the accused’s capacity to work for Westpac. The threats would no doubt have come as something of a surprise, even a shock, to the doctor.
The reason so much caution is necessary here is because so much depends on the simple matter of the tense of what was said by the accused. Was he making a future threat or simply recording how he had felt at a particular time?
It is important to recollect that the accused’s purpose in being at the doctor was to further his entitlement to income protection. It would be surprising in the extreme if he took the opportunity to state some future plans of harm to his former partner and children. Moreover, the accused’s version is consistent with him providing a full history to the doctor. Setting out his plans to kill his family could hardly be more alien to the intent of maintaining his monetary benefits.
This is not to say that I necessarily disbelieve Dr Ventura. She is obviously a credible and competent psychiatrist. Nevertheless, what is at stake here is the accuracy of her notes and her recollection. Their content make up the first element in the offence. I must be satisfied beyond reasonable doubt that the threats were made.
The accused gave evidence. He was not obliged to do so but having entered the witness box I treated him as any other witness whose evidence I might accept, in whole or in part. I would not describe him as an overly impressive witness. There were matters where his evidence was properly called into question. For example:
(a)The accused maintained on a number of occasions that he had no continuing feelings for his former wife. Firstly, having regard to the history of the hurt, on his belief, that she had caused him, such an attitude seems improbable. Secondly, he told the police that he did not like his wife, stating “I dislike her a lot” (Question 111, Exhibit D).
(b)At Question 108 in Exhibit D, it is an open interpretation of his answer that he was referring to his previous thoughts of killing his wife as having existed perhaps “two weeks or months ago”. Yet on many other occasions, and in his evidence, he was adamant that the period when he harboured the evil thoughts had been at the beginning of 2018.
(c)Dr Ventura said that at the end of the interview with the accused, he had said words to the effect of “have I scared you”. The accused denied having made this statement.
Despite the above inconsistencies, the accused otherwise maintained his position and was not diverted from his assertion that the homicidal thoughts had been expressed to have occurred at a much earlier time.
As to the “have I scared you” statement, I did not think the accused dealt well with this matter under cross-examination. On the other hand, there is a discrepancy in Dr Ventura’s evidence between her assertion that he had made the statement and her assertion that nothing of significance had been said after the threats were made. Further, the statement is not recorded in her notes.
The real question however is what would follow from a conclusion that the accused had asked the doctor if he had scared her. The question is, I think, equally consistent with him having made the threats as alleged and his version of what was said, but followed by the immediate cessation of the interview. Even expressed in the past tense, the once held intent to kill his former wife may well have been unsettling to the doctor and prompted the enquiry allegedly made by the accused.
The Crown conceded that if the contents of the threats concerned a past emotion of the accused, they could not satisfy the requirements of the offence.
Significantly, the accused in his police record of interview concedes a good deal of the content of the threats but places them in an historical context. He says a gun was never mentioned to the doctor but otherwise his version can co-exist with what was said to the doctor, subject to the difference between the threats being plans or a past emotion.
I note that, at Question 111 in Exhibit D, the accused told the police officers that he had previously “told police and everyone this before”. The police officers gave no evidence of any enquiry to corroborate this statement.
In addition, and significantly, when the accused spoke to the police officer on the afternoon of 23 August 2019 following the accusation being put to him, the accused said that he “had had thoughts of killing his wife in the past but he didn’t have them now”. There is, therefore, an immediate statement by the accused of his version.
An important distinction between the version given by Dr Ventura and the accused concerns what Dr Ventura described as the introductory words to the threats, namely that the accused said he had decided how to deal with his anxiety, in particular he had plans to deal with his former partner and children. But these crucial words are missing from the notes.
The introductory words were obviously told by the doctor to the police officer (Question 107, Exhibit D):
So Dr Ventura stated that you told her, “I’ve thought about it very carefully. The state that I am in, is all because of my wife, and I’ve thought about it, and I’ve planned that I’m gonna kill her….”
However, the description given orally by the doctor is a little different; she said in evidence:
'I know what I’m going to do about it’, yes?---Yes. ‘I’m going to do about it, I’ve decided what I’m going to do. I’m going to kill her…’
The differences are not stark, but it is to be remembered that the Crown relies on the doctor as an experienced practitioner used to taking histories including from persons involved in crime.
I need to be satisfied that the Crown has excluded as a possibility the version given by the accused in his police record of interview. I do not see how I can do so when the existence of the threats is dependent on so limited a difference between the competing versions. On one level the difference is as subtle as the distinction between I feel like killing her and I felt like killing her.
The Crown correctly pointed out that I need to take into account that I am dealing with the evidence of one person against the evidence of another. In addition, it is not a question of whose evidence I prefer. Although there are some matters of corroboration of the doctor’s evidence, for example from Ms Friend, there are also some inconsistencies which I have pointed out above.
Similarly, the accused’s evidence is lacking in some respects. Were the contest to be measured on a balance of probabilities, the Crown might have succeeded. However, the criminal standard of beyond reasonable doubt is a higher standard and I cannot conclude it has been met in this case.
This conclusion means that the Crown has not satisfied the first of the elements of the offence. There is no need to look further.
The order of the Court is that the accused is found not guilty on each count in the indictment.
| I certify that the preceding fifty-four [54] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 28 May 2020 |
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