R v Parkinson; R v Coats

[2020] NSWSC 794

Supreme Court

New South Wales

Medium Neutral Citation:

R v Parkinson; R v Coats [2020] NSWSC 794

Hearing dates:

15; 16; 17; 18; 22 June 2020

Date of orders:

24 June 2020

Decision date:

24 June 2020

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

My verdicts are:

(1)   In the matter of the Queen v Heath Parkinson, Heath Parkinson is not guilty of the murder of Christopher Quirk.

(2)   I direct the recording of an acquittal on that charge on the indictment.

(3)   In the matter of the Queen v Adam Coats:

(i)   Adam Coats is not guilty of the attempted murder of Christopher Quirk;

(ii) By his plea of guilty to Count 3 on the indictment, I convict Adam Coats of an offence under s 33(1)(b) of the Crimes Act 1900 (NSW) of causing grievous bodily harm to Christopher Quirk with intent to cause grievous bodily harm.

Catchwords:

CRIME – Murder – Defences – Self-defence – whether the Crown excluded self-defence beyond reasonable doubt

CRIME - Murder – Attempted murder – Mental element – Intention to kill – Effect of intoxication – whether the accused turned their mind to the achievement of the purpose to kill

Legislation Cited:

Crimes Act 1900 (NSW) ss 18, 27, 33, 418, 419

Criminal Procedure Act 1986 (NSW) ss 133, 365

Evidence (Audio and Audio Visual Link) Act 1998 (NSW) ss 22C, 22C(7)

Cases Cited:

Alford v Magee (1952) 85 CLR 437; [1952] HCA 3

Douglass v The Queen (2012) 86 ALJR 1086; [2012] HCA 34

R v Moffatt (2000) 112 A Crim R 201; [2000] NSWCCA 174

R v Murray (1987) 11 NSWLR 12

Smale v R [2007] NSWCCA 328

Category:

Principal judgment

Parties:

Regina (Crown)
Heath Kevin Parkinson (Accused)
Adam Dennis Coats (Accused)

Representation:

Counsel:
T. Bailey (Crown)
D Carroll (Accused - Parkinson)
E Wilson SC (Accused – Coats)

Solicitors:
Department of Public Prosecutions (NSW) (Crown)
Rodney Kennedy Solicitors Pty Ltd (Accused – Parkinson)
Lamond Legal (Accused – Coats)

File Number(s):

2018/98536
2018/78587

Judgment

1. On 8 May 2020 upon the election of each accused and with the consent of the Crown I ordered that this joint trial proceed as a judge alone trial under, and in accordance with, s 365 Criminal Procedure Act 1986 (NSW).

2. In accordance with the directions of the Chief Justice of New South Wales for the purpose of the current public health emergency that specified hearings and trials would be permitted to be heard with the parties, solicitors and counsel appearing in person in court, subject to appropriate social distancing requirements being observed, the matter was able to commence at Albury on 15 June 2020, as originally fixed by the Criminal List Judge. The accused, Heath Kevin Parkinson, attended each day in person from custody where he is on remand. The second accused, Adam Dennis Coats, on his own application appeared by audio visual link from the correctional centre where he is on remand by my direction made under s 22C Evidence (Audio and Audio Visual Link) Act 1998 (NSW). I am satisfied that appropriate arrangements were able to be, and have in fact been made for Mr Coats to confidentially instruct his solicitor and counsel when appropriate in accordance s 22C(7) of that Act.

Arraignment

3. When Mr Parkinson and Mr Coats were called for trial on 15 June 2020 they were arraigned on an indictment presented by the learned Crown Prosecutor, Mr Bailey, as follows (3.30 – 4.1T):

CHARGE 1:   For that Heath Kevin Parkinson, on 10 March 2018, at Corowa in the State of New South Wales, did murder Christopher Quirk.

PLEA   ACCUSED PARKINSON: Not guilty

CHARGE 2:   For that Adam Dennis Coats, on 10 March 2018, at Corowa in the State of New South Wales, did cause grievous bodily harm to Christopher Quirk with the intent to murder the said Christopher Quirk.

PLEA   ACCUSED COATS: Not guilty

CHARGE 3:   (In the alternative to charge 2) For that Adam Dennis Coats, on 10 March 2018, at Corowa in the State of New South Wales, did cause grievous bodily harm to Christopher Quirk with the intent to cause grievous bodily harm.

PLEA    ACCUSED COATS: Guilty

4. The Crown did not accept Mr Coat’s plea of guilty to the alternative charge in full discharge of the indictment against him.

The Crown case – Mr Parkinson

5. The Crown case against Mr Parkinson is that he murdered Mr Quirk by causing his death by stabbing him in the leg with the actual specific intent of causing him very serious bodily injury. The stab wound was inflicted in a fight between the two men. The cause of death was significant blood loss because the stab wound to Mr Quirk’s left leg severed the femoral artery and vein. The Crown argued that I would be satisfied beyond reasonable doubt that Mr Parkinson was not acting in self-defence when he inflicted that stab wound and that there is no legal justification for reducing a verdict of guilty of murder to guilty of manslaughter.

6. To reach a conclusion of guilty of murder, the Crown argued that I would accept the evidence of Mr Quirk’s then estranged partner, Ms Shelley Rolton that the two men were fighting in Vera Street, Corowa. Contrary to expectations when the fight was set up, Mr Quirk had armed himself with a knife and baseball bat for the fight. Mr Parkinson was unarmed. Ms Rolton said that when he arrived at their rendezvous Mr Quirk went straight over to Mr Parkinson and attacked him with the knife. He stabbed him multiple times in “all sorts of places” (143.19T). Mr Parkinson fell over a bush and he and Mr Quirk were rolling around fighting (143.22T). Mr Quirk tripped and dropped both the baseball bat and the knife (143.27T). Mr Parkinson picked the knife up and stabbed Mr Quirk in the leg (143.28T). He also picked up the baseball bat and hit Mr Quirk with it (143.40T).

7. The Crown case is that the interruption of Mr Quirk’s attack on Mr Parkinson, occasioned by him dropping his weapons was “an important moment in time when the two men were separated. There was a cessation of the attack on Mr Parkinson that for all intents and purposes had come to an end with respect to [Mr Quirk]” (290.31T). At that moment, the Crown argues that Mr Quirk was at the command of Mr Parkinson who had choices available to him which did not involve stabbing Mr Quirk with the knife. He could have punched him, he could have hit him, presumably with the baseball bat, or he could have retreated, “especially having regard to the fact that he was badly wounded himself” (290.37T). The learned prosecutor submitted (290.39T):

“… The Crown says that the break in the proceedings is critical in allowing [the Court] to determine…that what he did was not in self-defence, but rather…was an act of ill-temper [which] was coloured with malice, [and] intended to hurt him and hurt him very, very seriously by using that sharp weapon to stab him in that vulnerable part of his body”.

The Crown sought a verdict of guilty of murder and submitted “the so-called defence of self-defence is not available to [Mr Parkinson]” (291.3T).

Issues – Mr Parkinson

8. Mr D Carroll of counsel, who appears for Mr Parkinson, submits that the verdict should be one of not guilty of murder. He submits that I could not be satisfied on the evidence that:

1. Mr Parkinson stabbed Mr Quirk with the necessary intent of inflicting very serious bodily injury or any specific intent at all, given the very serious nature of his own injuries;

2. Alternatively, and in any event, I should not be satisfied that the Crown has discharged its obligation of negativing self-defence beyond reasonable doubt; and

3. Further in the alternative, if contrary to his submissions, I was satisfied beyond reasonable doubt that Mr Parkinson would otherwise have been guilty of murdering Mr Quirk, his criminal responsibility should be reduced to guilty of manslaughter by reason of the so-called partial defence of extreme provocation which the Crown, on Mr Carroll’s argument, have failed to exclude.

9. Mr Carroll submitted that for various reasons which I will address below I should regard Ms Rolton’s evidence as unreliable, particularly as to the precise sequence of events. Mr Carroll submitted that the evidence of a neighbour across the street, Ms Christie Campbell, was in substance, to be preferred. From this I should decide that Mr Quirk delivered the most serious stab wounds to Mr Parkinson when they had fallen to the ground and Mr Quirk was on top of him. I should also infer that at that stage, Mr Quirk lost or discarded the knife and while he was still being attacked, Mr Parkinson gained temporary possession of the knife and struck out at Mr Quirk, without having formed any specific intention as to the consequence of his actions other than to defend himself, thereby inflicting the fatal stab wound.

The Crown case – Mr Coats

10. The case of attempted murder against Mr Coats also depends upon acceptance of Ms Rolton’s evidence as well as the evidence of Mr Colin Saville, an associate of Mr Quirk’s, who happened to be at the scene in circumstances I will explain below.

11. The Crown case is that after the fight between Mr Parkinson and Mr Quirk was over, because both men had collapsed due to their severe stab wounds, Mr Coats, an associate of Mr Parkinson, emerged from his premises armed with a mattock handle which he used to strike Mr Quirk, who was supine, forcibly about the head a number of times. As he struck him he uttered “you’re dead, you’re going to die” (49.33T) and “die, you dirty dog” (145.27T). Other accounts were that he said words to the effect “I’m going to get you fucked up in gaol, you’re not going to live through this” (213.41T). Whichever verbal formulation is established on the evidence, the Crown say I should draw the inference that Mr Coats’s blows were accompanied by strong language expressing the intention that Mr Quirk would not survive the assault (292.45 - .50T).

12. The Crown case is that although the assault with the mattock handle did not cause or materially contribute to Mr Quirk’s death, it did result in the infliction of very serious bodily injury involving facial fractures to the left eye socket, left nose and left cheek and a mild axonal injury to the brain. The Crown argued that on the totality of the evidence, I would be satisfied beyond reasonable doubt that Mr Coats struck Mr Quirk forcibly with the mattock handle with the intention of killing him.

Issues – Mr Coats

13. By his plea of guilty to the third charge on the indictment, Mr Coats accepts that he inflicted grievous bodily harm upon Mr Quirk when he was down after suffering the stab wound, and that he struck with the intention of inflicting an injury of that severity. But by his not guilty plea to Charge 2, he denies having the actual specific intention to kill Mr Quirk when he struck him. Mr E. Wilson SC, who appears for Mr Coats, argued that I could not be satisfied beyond reasonable doubt that Mr Coats struck Mr Quirk with the mattock handle more than once nor could I be satisfied that when he did so he had the actual intention to kill.

14. Mr Wilson argued that the evidence of Ms Rolton and Mr Saville was unreliable both as to the number of blows struck by Mr Coats and as to the words uttered. Senior Counsel argued that the actual words spoken were of critical importance and that on the evidence at best there was a statement of future intention, or a threat, that Mr Quirk would be dealt with for his attack on Mr Parkinson when he was in gaol.

15. Moreover, having regard to Mr Coats’s admissions to the police of having imbibed and inhaled intoxicating liquor and drugs, and the evidence of Ms Shanae Johnson as to his apparent drug affectation immediately after the assault, I should be satisfied that his intoxication is a legal issue to be considered when determining whether I am satisfied beyond reasonable doubt that he formed the necessary specific intention to constitute the offence of attempted murder. Mr Wilson submitted I could not be satisfied beyond reasonable doubt that he turned his mind to the consequences of his actions at all and that the proper verdict in respect of the second charge of the indictment was one of not guilty.

Factual narrative

16. The deceased, Christopher Quirk, was generally, but not always known, and referred to in the evidence, by his nickname “Mick”. At different times the same witness would refer to him as “Christopher” or “Chris” and then as “Mick”. No particular confusion was engendered by this circumstance.

17. The broad facts I am about to set out now are largely, but not wholly, non-contentious. They provide the matrix in which the disputed facts arise. Not every witness mentioned would agree with all of my summary so far as her or his involvement is concerned. But the parties accept them as an available account of the essential background to their dispute, even if each in some respects contends for a different finding.

18. As the learned Crown Prosecutor put it when opening his case, the charges against Mr Parkinson and Mr Coats arise out of “a sad series of events” (4.28T) which occurred on 10 March 2018 in Vera Street, Corowa. The deceased, Mr Parkinson, and Mr Coats respectively, at that time, regarded 43, 45A and 47 Vera Street as home. I have put it that way because at the time the deceased was separated from his partner of some 18 years, Shelley Rolton, who continued to reside at their former shared residence at No. 43, while Mr Quirk was out of home. Notwithstanding court orders made for the protection of Ms Rolton, Mr Quirk was a frequent visitor to his former home. Mr Parkinson had been residing for a short period at 45A with its usual resident, Ms Christine or “Chrissie” Finnerly after his relationship with a girlfriend broke up. Mr Coats and his partner had only recently moved into No. 47.

19. Each of the main protagonists in the “sad series of events” were known to each other, and I infer had been involved in each other’s lives, for a period of time before 10 March 2018. The length of their relationships differed. Their involvement in each other’s lives had not always been pleasing to either them or their families.

20. On 10 March 2019, Mr Quirk and Mr Parkinson were in what appears to have been a particularly acrimonious dispute. The ostensible cause of the dispute was property damage occasioned to a modular lounge or sofa which Mr Parkinson considered to be of value and which had been temporarily stored in the shed at the rear of 45A Vera Street. Only Mr Parkinson, Ms Finnerly, Ms Rolton and Mr Quirk knew it was stored there. Mr Quirk had helped Mr Parkinson stow it.

21. Mr Parkinson had occasion to inspect the sofa on the morning of 10 March 2018 and found that the leather cover had been badly damaged by a sharp implement. From all the evidence he was extremely angry.

22. To obtain satisfaction he, first, in concert with Mr Coats, engaged in the unlawful self-help remedy of taking possession of and removing Mr Quirk’s boat and trailer from 43 Vera Street. Secondly, by telephone he issued an ultimatum, perhaps via Ms Rolton’s phone, for Mr Quirk to see him in Vera St about the matter. It was obviously implicit in this ultimatum that there was to be a reckoning of differences by fist-fight. There are differing versions about whether what Mr Parkinson said was accompanied by threats that Mr Parkinson was holding Ms Rolton and perhaps her and Mr Quirk’s daughter hostage, as well as the boat. This was not true. But, certainly Mr Quirk, apparently tearfully, passed on such a version to his associate Mr Saville when he sought the latter’s help in the matter.

23. Mr Quirk, on one view of the evidence, had particular reason to resent Mr Parkinson because he believed that Mr Parkinson and Ms Rolton had had sexual relations. He apparently came by this belief from information provided by Ms Rolton’s son, his stepson. Ms Rolton denied the allegation.

24. Mr Quirk was apparently content to accept what seems to have been regarded by both him and Mr Parkinson as a challenge to a fight, but he was not prepared to attend Vera St alone. He called in aid his friends, Mr Saville, Mr Wilson and Mr Harris. Nor was he prepared to go unarmed.

25. There is some suggestion in the evidence that Mr Quirk needed support because either there was a warrant out for his arrest or the AVO to which he was subject prohibited him approaching Vera St (Ms Finnerly’s statement, 267.10T). For whatever reason, his attendance at Vera St seems to have been something of a planned operation. Mr Harris and Mr Wilson were enlisted to either stand cockatoo at either end of Vera Street while Mr Quirk approached 45A on foot at about midday to alert him of any approach of police or to provide support in the event that Mr Parkinson obtained the upper hand. Mr Saville was providing logistical support dropping Mr Harris and Mr Wilson off at their appointed posts, signalling Mr Quirk when they were in place by a short 4 seconds ringing of Mr Quirk’s mobile phone and perhaps cruising Vera Street to keep an eye on things.

26. If one accepts their evidence at face value, neither Mr Saville nor Mr Wilson observed Mr Quirk to be armed in any way when he alighted from Mr Saville’s car a little way from Vera Street shortly before what became the fatal confrontation. Mr Harris protested he could remember nothing of these events because of “complex PTSD”, and other mental health issues including daily substance abuse (106.24T). He was not challenged about his claimed total lack of recall, which I must say I found doubtful.

27. It is the Crown case supported by other evidence that Mr Quirk approached his rendezvous with Mr Parkinson armed with both a baseball bat (perhaps rather a mattock handle) and a knife. Mr Wilson was careful to make clear that from where he was sitting in the car he had no clear view of Mr Quirk as he alighted, although it would have been surely difficult to miss a mattock handle, if that is what he carried, as I believe it was. As I have said, Mr Saville denied that he was armed.

28. Ms Rolton, who was outside her home when Mr Quirk approached, said Mr Quirk was carrying “a knife and a baseball bat” (141.20T). Her description of the baseball is broadly similar to the bat recovered by police from Mr Saville’s vehicle as depicted in Exhibit B, photographs 74-76, except she was adamant it was wooden not metallic (141.20 - .40T; 175.45 - 176.36T).

29. Ms Rolton said Mr Quirk was very upset, “a force to be reckoned with” (142.27T). She said he ignored her entreaties to not “go down there” (142.44T). It was completely out of character for him not to listen to her (142.28T). She said he went straight over to 45A and attacked Mr Parkinson stabbing him with the knife (143.10T). As Ms Rolton’s evidence is relied upon heavily by the Crown, I will return to it in more detail below.

30. Although on Ms Rolton’s evidence Mr Quirk was carrying a baseball bat, and a metal baseball bat with Mr Quirk’s DNA on the handle was recovered from Mr Saville’s vehicle after the event, I am of the view that he was probably carrying the mattock handle as he approached Mr Parkinson. I prefer this conclusion because the mattock handle tested positive for the DNA of both Mr Quirk and Mr Parkinson. No one else’s DNA was recovered from the baseball bat. This seems to me consistent with each of them handling the mattock handle, in some way, during their struggle. I am of the view that Ms Rolton was mistaken in her description of the bat Mr Quirk was carrying. Mr Crown, given his reliance on Ms Rolton’s evidence, by implication, and Mr Carroll, expressly, argued that I should not make this finding. Mr Carroll argued that Mr Parkinson’s DNA found its way onto the mattock handle when Mr Coats lifted to strike Mr Quirk with it. Mr Carroll says that Mr Parkinson’s DNA would have been deposited there by a process of secondary transfer involving Mr Coats attending to Mr Parkinson after he was stabbed and before handling the mattock handle. However this appears to introduce a process without an evidential foundation. The evidence overall is to the effect that when he emerged from No. 47 he went straight to Mr Quirk who was nearer the front door than Mr Parkinson. Moreover, as I have said, Mr Parkinson’s DNA was not located on the baseball bat. There is no evidence of anyone being particular to put the baseball bat back in Mr Saville’s car before Mr Quirk was rushed to hospital. The knife used by Mr Quirk, by way of example was left at the scene, admittedly after being picked up and thrown on to the front yard of 45A by Ms Finnerly (267.35-38T). It was located by police in a red lidded garbage bin at 45 Vera St. There is no evidence as to how it came to be there (Exhibit A, photographs 45-47; 286.40-45T). The knife also had blood stains which tested positive for the DNA of both Mr Parkinson and Mr Quirk.

16. As many as three knives were recovered from the crime scene when forensic officers investigated. They are a black handled knife, a red handled knife with perforations through its blade and what has been referred to in the evidence as the ornate knife. This is the knife I have just referred to. The ornate knife was decorated with an engraved pattern on its handle and blade. Dr Heinrich Schwalb, General Surgeon, who gave evidence about the nature of Mr Parkinson’s injuries, said that the ornate knife was “consistent” with Mr Parkinson’s injuries so far as its size, the length of its blade and it’s “quite substantial hilt” were concerned (192.45 – 193.3T). The other knives are irrelevant. They were not used by anybody in the fight.

17. I should also stress there is no suggestion in the evidence that Mr Parkinson was armed when Mr Quirk arrived. As I have said, he was expecting a fist fight and he was expecting it to be short lived, according to the statement of a witness, Tracey Milthorpe which was read in the proceedings. Ms Milthorpe overheard Mr Parkinson speaking with Ms Rolton at around 10 a.m. She said (269.18 - .25T):

“I could hear [Mr Parkinson] say, “I will protect you and it will be OK but things have to be done”. I could not hear what [Ms Rolton] was saying as she had her back to me, but [Mr Parkinson] was very loud and agitated. [He] was saying things like “I’ve punched somebody before and they went down fairly hard and I didn’t even see them [as said] hard so if I punch him I will hit him hard”. [Mr Parkinson] was bragging about assaults and making threats.”

33. It will be necessary to descend into the detail of the evidence of what happened to resolve the issues surrounding any criminal responsibility on the part of Mr Parkinson and Mr Coats. It is enough to say now, that in general terms the two men, Mr Parkinson and Mr Quirk took to fighting. Mr Quirk sought to use both the mattock handle and the knife to subdue Mr Parkinson. Neither received injury by use of the mattock handle at this stage of their deadly encounter. The two men struggled together, I would infer, over possession of the knife. This would account for the incise wounds (or cuts) to Mr Quirk’s right cheek, wrist and palmar aspect of his hand found by the forensic pathologist Dr Hannah Elstub on her post mortem examination (238.32T; 239.15T; 243.5T).

34. Mr Quirk inflicted a number of knife wounds on Mr Parkinson, the most significant of which were described by Dr Schwalb as two deep penetrating stab wounds to the right side of his chest and most significantly a deep abdominal stab wound also on the right side which dissected the liver, travelled through the stomach and duodenum and into the large blood vessels around the pancreas (190.1-15T). I interpolate that Mr Parkinson was very close to death when he arrived at Albury hospital by helicopter and owes his survival to the very skilled surgical team including, and led by, Dr Schwalb at that hospital.

35. After he inflicted wounds on Mr Parkinson, Mr Quirk lost possession of the knife and Mr Parkinson gained it. While it was in his possession he inflicted a single stab wound to Mr Quirk’s left thigh. Dr Elstub described this injury as “a stab wound on [the] left situated lateral and superior to the knee, wound path from inferior to superior, left to right and back to front” involving an injury to the femoral artery and vein and a superficial injury to the back of the femur (238.23 – 25T). She also referred to superficial incise wounds, or cuts, on the lower part of Mr Quirk’s left leg below the knee (240.15T). In her opinion the stab wound of the left leg was the cause of death (240.40T). She said this wound “caused injury to the femoral artery and vein, the major vessels of the leg. This would have resulted in significant blood loss” (240.38 - .40T).

36. It is relevant to record here that Dr Elstub said that results of toxicological testing taken from Mr Quirk were negative for alcohol but indicated “a high level of the stimulant drug methamphetamine … along with a low level of its metabolite,” amphetamine (239.20 – 25T; 240.27 - .31T). The actual readings were, for methamphetamine 1.90 milligrams per litre of blood and for amphetamine 0.11 milligrams per litre. Other drugs were also detected, the possible significance of which was not made clear in the evidence. Dr Elstub said that the toxicological results were consistent with recently ingested and partly metabolised methamphetamine, indicating it was likely that Mr Quirk was under the influence of that drug both when he died and when the incident causing death occurred (259.7 -.24T).

37. I should add that the inference that Mr Quirk was drug affected when the incident occurred is somewhat bolstered by the evidence of Ms Rolton that when she spoke with Mr Quirk at 6:30 a.m. that day, she “thinks” at her house, he appeared to be affected by methamphetamine. She said, “I was with Mick for 18 years. I knew when he was on [methamphetamine]” (149.25 - .37T). Drug affectation could possibly account for Ms Rolton’s evidence I have already referred to, that, to her, when he showed up in Vera Street around midday, he was “a force to be reckoned with” and he refused to “stop and listen to [her]” when she called out to him (142.25T).

38. For completeness I should say that there was no persuasive evidence that Mr Parkinson was drug affected. In his ERISP Mr Coats speculated about that but I put that material to one side. There is a large, compelling body of evidence that Mr Parkinson was very angry about the damage to his couch. He was also said to be pacing up and down repeatedly. Sometimes the combination of anger and pacing can be signs of agitation which may be associated with disturbed thinking due to ice intoxication. But there is no evidence to support that conclusion in Mr Parkinson’s case and as I have said, no evidence of drug induced intoxication at all.

Narrative of fact – Adam Coats

39. I will turn now to Mr Coat’s case before returning to deal with issues of criminal responsibility. It needs to be borne in mind, as I have said, that Mr Coats has pleaded guilty to the third count on the indictment, the charge of occasioning grievous bodily harm with intent to cause grievous bodily harm. He has pleaded not guilty to the second count which may be summarised as attempted murder, or more formally as causing grievous bodily harm to Mr Quirk with intent to murder him. The common element between the second and third counts is the matter of causing grievous bodily harm to Mr Quirk. By his plea of guilty to the third count which is in the alternative to the second, it may be taken that he admits causing grievous bodily harm to Mr Quirk. But there remains the issue of primary fact about what actions of his caused that harm. It seems to be accepted that he struck Mr Quirk with an implement when he was immobilised, supine on the ground near the boundary of 47 and 49 Vera St after the infliction of the fatal knife wound by Mr Parkinson.

40. It also seems to be common ground that the mattock handle which I have found Mr Quirk brought to the fight as depicted in the photographs in Exhibit B 1 to 31 was the implement used by Mr Coats to inflict that grievous bodily harm upon Mr Quirk. As the photographs demonstrate it was extensively blood stained or blood splattered. Notwithstanding biological testing demonstrating the presence of DNA of Mr Quirk and Mr Parkinson, no DNA from Mr Coats was located on that implement, or anywhere else it might be said. According to the account he gave police in the ERISP (Exhibit C), when the encounter between Mr Quirk and Mr Parkinson commenced Mr Coats was working on his trailer in his backyard at No. 47 Vera Street. It will be recalled he had assisted Mr Parkinson earlier to unlawfully remove Mr Quirk’s boat from No. 43. Mr Coats, according to his ERISP had seen Mr Quirk approach and when he heard the commotion Mr Coats decided to investigate the source of trouble. He said that his partner, a Ms Gemma Thurlow, attempted to prevent him from going outside and by the time he emerged from No. 47, following their bloody encounter, Mr Parkinson was supine on a small trampoline in the front yard of No. 47, as depicted in Exhibit A, photograph 29. Mr Quirk was likewise lying on his back under the tree on the other side of the swing set depicted in Exhibit A, photograph 37.

41. The Crown case, as I have said, based upon the evidence of Ms Rolton and Mr Saville, is that Mr Coats struck Mr Quirk about the head and upper body as many as a dozen times.

42. Mr Coats’s case is that he struck him once about the head only. This version may be supported by the evidence of Ms Finnerly, given in statement form and by the oral testimony of Ms Christie Campbell who lived across the street from the scene of the carnage.

43. There is also the issue about what words accompanied Mr Coats’s action or actions I have referred to above (at [11] and [13]-[14]). I repeat that intoxication is relied on as relevant to the absence of the requisite intent.

44. I should say, as may appear obvious from the nature of the charges, the grievous bodily harm inflicted by Mr Coats was not a cause in any legal sense of Mr Quirk’s death (see evidence of Dr Elstub 240.35 – 241.31T).

General legal principles – applicable to the trial of each accused

45. Section 133 Criminal Procedure Act prescribes my duties in a criminal trial without a jury. The section requires me to include in my judgment the principles of law and findings of fact I have relied on in reaching my decision. The section also requires me to take into account any warning which, in the circumstances of the case, would usually be given to a jury. I bear in mind that I have the responsibility of identifying the real issues for decision. It is necessary for me to state only so much of the law relevant to those real issues: Alford v Magee (1952) 85 CLR 437; [1952] HCA 3 at 466.

46. The starting point, and fundamental rule, as in any criminal trial, is that the accused is presumed to be innocent. The presumption of innocence is rebutted if and only if the Crown proves the essential elements of the charges beyond reasonable doubt.

47. The starting point, and fundamental rule, applicable to all criminal trials is that the accused is presumed to be innocent of the crime with which they stand charged. This burden of proof rests, and remains, throughout the trial on the Crown. The legal burden does not shift. There is no burden of proof of any issue whatsoever upon the accused. The presumption of innocence is rebutted if and only if the Crown proves the essential elements of the charge beyond reasonable doubt.

48. The Crown must establish the guilt of the accused to my actual satisfaction beyond reasonable doubt. It is not enough for the Crown to show a mere suspicion of guilt, or even to show, if it can, that the accused is probably guilty. The Crown must go further and prove guilt beyond reasonable doubt. If there is any reasonable possibility that the accused is not guilty I must acquit them of the charges. I acknowledge that “the criminal standard of proof is a designedly exacting standard”: Douglass v The Queen (2012) 86 ALJR 1086; [2012] HCA 34 at [48].

49. Unless otherwise stated in the course of these reasons, when I use words or expressions such as “proved”, or “I am satisfied”, or “I accept”, I mean I am actually satisfied of the matter stated beyond reasonable doubt.

Joint trial

50. This case has proceeded as a joint trial, with the Crown bringing the indictment forward for the two accused. The reason for this is that Mr Parkinson and Mr Coats are charged with inflicting injury on Mr Quirk at about the same time in circumstances which are linked. For that reason a joint trial is being conducted merely as a matter of legal convenience. The accused are not charged as participants in a joint illegal enterprise. Therefore each charge must prove separately against each accused. However except in circumstances I make clear, most of the evidence has been led as relevant to the trial of both the accused. Where I have made a limiting order restricting the evidence in the trial to the case of one of the accused I will make that clear in my judgment and only apply that evidence to the case of the accused in whose case it is tendered.

51. Despite the nature of this trial, I remind myself that each charge must be proved separately and I must be satisfied beyond reasonable doubt that the Crown has made out the elements of the alleged offending. A finding of criminal responsibility of one accused has no bearing on the criminal responsibility of the other. I repeat, I must be satisfied beyond reasonable doubt that the accused committed the offence before I make a finding of guilt.

Accounts of eyewitnesses – applicable to the trial of each accused

52. I remind myself that when evaluating eyewitness accounts I am not bound to either accept or reject the whole of any witness’s evidence. It is always open to the tribunal of fact, for good reason, to accept, and reject, part only of a witness’s evidence. Not all eyewitness testimony proves reliable. And this is true in respect of some of the witness evidence in this case. It’s common place for the recollection of eyewitnesses to deteriorate over time. Even when bolstered by relatively contemporaneous written accounts, the written word may well have been influenced by extraneous factors. In other cases persons proffered as eyewitnesses may not have been paying attention to what happened until it was all over, or their opportunity to see and hear what they say they saw and heard may have been limited. The perception of events, or recollection of a given witness may be coloured by partiality or sympathy.

Elements of murder – Mr Parkinson

53. Section 18 of the Crimes Act1900 (NSW) provides that the Crown must prove beyond reasonable doubt that the act of Mr Parkinson - here stabbing the deceased - caused the death of the deceased, and that act was done with intent to kill or inflict grievous bodily harm upon the deceased. Grievous bodily harm is usually modernised with the phrase really serious bodily injury.

54. The acts of the accused must have caused the death of the deceased. There is no issue here that Mr Quirk bleed to death as a result of the stab wound severing the blood carrying vessels in his left leg.

55. I remind myself that the Crown must prove to my actual satisfaction beyond reasonable doubt by evidence I accept that the accused actually held the necessary specific intent I have described when he stabbed the deceased. The requisite specific intent must coincide in point of time with the fatal act.

56. Specific intent is concerned with the accused’s subjective state of mind. This is not decided by a consideration of what a reasonable, ordinary or prudent person ought to have known, appreciated or understood in the circumstances. Such matters may have some relevance to a consideration of the case. But the ultimate question – the existence of the necessary mental element of the offence that is to be proved by the prosecution beyond reasonable doubt – relates solely to the accused’s subjective state of mind: what was actually in his mind at the time he stabbed the deceased.

57. I remind myself, as I would a jury, that intent and intention are very familiar words. In this legal context they carry their ordinary everyday meaning. A person’s intention may be inferred or concluded from the circumstances in which the death occurred, and from the conduct of the accused person before, at the time of, and after he did the specific act or acts which caused the death of the deceased. In some cases a person’s acts may themselves provide the most convincing evidence of the person’s intention at the time. Where a specific consequence is the obvious and inevitable outcome of a person’s act, and where the person deliberately does that act, it may be inferred readily that he did that act with the intention of bringing about that outcome. This is not to say that I start from the premise that every person should be taken as intending the natural consequences of his or her acts. There is no presumption to this effect. The Crown must prove beyond reasonable doubt that the purpose of the accused, at the time he stabbed the deceased, was to kill him or to inflict really serious physical harm upon Mr Quirk. To put it another way, the Crown must prove beyond reasonable doubt that when he stabbed the deceased the accused meant to kill him or inflict really serious bodily injury upon him.

58. It is important to bear in mind that what is required is an actual specific intention to kill or inflict grievous bodily harm as opposed, for example, from a mere intention to stab or wound. One may intend to draw blood without intending to kill.

59. Before the accused is guilty of the most serious crime of murder I must be persuaded beyond reasonable doubt that Mr Parkinson actually or consciously directed his mind at the time he stabbed the deceased to the achievement of the purpose of killing Mr Quirk. It will be insufficient if I find that Mr Parkinson held a motive to kill Mr Quirk or that he merely desired to kill Mr Quirk.

60. As no-one can see into another’s mind, intention is something which can only be proved by inference. An inference is a conclusion which is drawn from other proved facts. The Crown will have failed to prove its case unless the only rational inference which can be drawn from all of the circumstances I find established by evidence I actually accept is that when Mr Parkinson stabbed the deceased with the knife the accused had the actual specific intention of inflicting really serious bodily harm.

61. I have emphasised the need for the Crown to prove that Mr Parkinson had actually formed the necessary specific intent when he stabbed the deceased because ordinary human experience shows a person may act without turning his mind to the consequences of his actions, especially in the heat of the moment. This does not mean that it is some kind of defence for a person to say he acted without thinking, or in anger. It is simply a reminder that the Crown need to establish beyond reasonable doubt an affirmative proposition that the accused acted with the specific intent necessary for murder.

62. I will remind myself that guilt must be the only rational inference that can be drawn from all the circumstances established by the evidence considered collectively, rather than in a piecemeal fashion, before a conviction can be imposed.

Mr Parkinson and the right to silence

63. Mr Parkinson chose not to submit to a full ERISP with police when he was charged. That is to say, he exercised the right to silence when spoken to by police that all of us enjoy in common, subject to presently irrelevant statutory exceptions. I remind myself that the accused having heeded the caution given to him by police it would be quite wrong of me to use that fact against him in any way and I will not do so. I will put it to one side. To the extent he gave an exculpatory account on other occasions when spoken to by police that material is before me as part of the evidence in the case and may be taken into account.

64. Although the accused carries no burden of proof in the case he had the right to give evidence in his own defence if he so chose. The circumstance that he chose not to give evidence cannot be used against him in any way either. At all times it is for the Crown to prove the guilt of the accused beyond reasonable doubt and his silence at the police station and in court may not be used against him. In particular, it is impermissible to use his silence to fill perceived gaps in the evidence. If there are gaps in the evidence I am required to consider whether that matter creates a doubt in favour of the accused.

Self-defence

65. Self-defence is a very substantial issue in Mr Parkinson’s case. A person is not criminally responsible for what would otherwise be murder if a person carries out the conduct said to constitute murder in self-defence: s 418 Crimes Act. This is so even if the Crown prove that the act of the accused causing death was done with the requisite specific intent for murder; in this case the intent to cause grievous bodily harm. Although referred to as a “defence”, the true position is that the intentional killing of another person in self-defence is not murder.

65. For present purposes it is sufficient to say that a person carries out conduct in self-defence, if and only if, the person believes that the conduct is necessary to defend himself and the conduct is a reasonable response in the circumstances as he perceives them.

66. I remind myself that it is for the Crown to prove beyond reasonable doubt that Mr Parkinson did not stab Mr Quirk in self-defence: s 419 Crimes Act. If the Crown does not discharge this onus, Mr Parkinson must be acquitted of the charge of murder, even though he stabbed Mr Quirk with the requisite intent for murder.

67. Self-defence may be either a complete, or a partial defence to the charge of murder. If a complete defence the accused is not guilty of murder, or of manslaughter, I interpolate. If a partial defence, the accused is not guilty of murder, but is guilty of voluntary manslaughter, that is to say manslaughter by excessive self-defence.

68. The availability of self-defence depends upon the answers to the following questions:

1. Has the Crown excluded beyond reasonable doubt the possibility that the accused believed that stabbing the deceased was necessary in order to defend himself? and

2. Has the Crown excluded beyond reasonable doubt the possibility that stabbing the deceased was a reasonable response in the circumstances as he perceived them?

70. If “No” is the answer to each question the accused is not guilty of either murder or manslaughter. In those circumstances the accused is entitled to be acquitted and no question of manslaughter arises.

71. Self-defence will operate as a partial defence only, reducing murder to manslaughter, if the answer to the first question is “No”, and “Yes” is the answer to the second question: s 418 Crimes Act.

72. Self-defence will not apply at all, that is to say the Crown will have excluded it, if “Yes” is the answer to the first question. It is unnecessary in those circumstances to answer the second question in this event.

73. The first question focusses solely upon the accused’s subjective state of mind. The second question requires an objective evaluation of all of the circumstances relevant to the question but from the stand-point of a reasonable person in the accused’s position viewing the situation through his eyes.

Crown’s reliance on the evidence of Ms Rolton

74. In respect to the charge of murder against Mr Parkinson, the Crown submitted that I should have regard to the dynamics of the fight between Mr Parkinson and the deceased. In this regard, the Crown submitted that I need only take into account the evidence of Ms Rolton. In these circumstances Mr Carroll said that a Murray direction should be given.

75. I am not really satisfied that such a direction is required in this particular case, as although the Crown emphasises the evidence of Ms Rolton they called other witnesses to the incident and I will have regard to that other evidence in deciding this case. With this in mind, I nonetheless remind myself that where the Crown relies on only one witness, I must carefully scrutinise the reliability of this evidence and that I will be unable to make a finding of guilt, unless I find that the witness is reliable beyond reasonable doubt: R v Murray (1987) 11 NSWLR 12 at 19; Smale v R [2007] NSWCCA 328 at [71] (Howie J).

Elements of attempted murder – Mr Coats

76. For Mr Coats to be found guilty of attempted murder under s 27 of the Crimes Act the Crown must prove beyond reasonable doubt that Mr Coats caused grievous bodily harm to Mr Quirk – namely by hitting him with the mattock handle, and that this act was done with an actual specific intent to kill Mr Quirk. It is not sufficient for proof of the offence of attempted murder that Mr Coats intended to inflict really serious bodily injury on Mr Quirk. I also repeat that the requisite specific intent must coincide in point of time with the fatal act.

77. It is not necessary to deal with the elements of the third charge as Mr Coats has pleaded guilty to this count on the indictment.

Mr Coats’s intent

78. Mr Wilson submits that the key question with respect to Mr Coats’s trial is whether the Crown has established beyond reasonable doubt that Mr Coats had the specific intent to kill Mr Quirk. I accept Mr Wilson’s submission. Given Mr Coats plea of guilty to charge 3 of the indictment, the only issue I need to resolve is whether in inflicting grievous bodily harm on Mr Quirk, Mr Coats intended to kill him. In that respect, I direct myself that the Crown has to prove beyond reasonable doubt that when Mr Coats swung the mattock handle, he brought to his mind the purpose he wished to achieve, that is, to kill Mr Quirk. The directions I have given about intent above in substance apply to Mr Coats’s case ([55] - [62]).

ERISP – Mr Coats

79. The account given to police by Mr Coats is in evidence by way of his ERISP recording (Exhibit “C”). Rather than rely on his right to silence as he would have been entitled to do, Mr Coats chose to answer the questions investigating police asked of him. As his account has been tendered as evidence it is permissible for me to take that material into account in this case.

80. The fact that Mr Coats participated in an ERISP and that the ERISP is in evidence does not in any way alter the burden of proof. The accused does not have to satisfy me that his version as recorded in the police station is true. Quite the contrary, to the extent to which the accounts given by him may be exculpatory, the Crown need to satisfy me that the accounts given by the accused should not be accepted as a version of events which could reasonably be true. At the same time, I must assess the account contained in the ERISP in the same way as that of evidence of other witnesses. It is not necessary that I accept all of it or reject all of it. I am entitled to accept some, and reject other parts of it according to my evaluation of it in the context of the whole of the evidence given at the trial. In evaluating the evidence, I will bear in mind that the account is an out of court statement not tested by cross-examination. One needs to bear in mind that the accused, who knew that his interview was being recorded, may have a motive to make exculpatory statements to the police.

81. Mr Coats told police in the interview that he did not hit Mr Quirk with the mattock handle, but confesses that he may have punched him or pushed on his chest with the rubber handle of the shovel he was holding and “smacked him with the hose”, “donged him on the head with” the roll of duct tape. This account is inconsistent with his plea of guilty to count 3 of the indictment. As I have said above, given Mr Coats plea of guilty to the charge of inflicting grievous bodily harm with intent to inflict grievous bodily harm, Mr Coats now admits that he hit Mr Quirk with the mattock handle. Accordingly, I find that Mr Coats’s answers in the interview about his role in the incident are not reliable and I put them to one side as a version that could not reasonably be true. This does not mean that I reject to whole of his account. There are other statements which could possibly be true.

82. The directions I have given about the right to give evidence at trial above in substance also apply to Mr Coats’s case (at [64]).

Intent and intoxication – Mr Coats

83. As I have said Mr Wilson has relied on Mr Coats’s intoxication as relevant to intent. He submitted that I should have regard to the evidence of Ms Johnson, who said that Mr Coats “looked off his face” (17.45T). He also submitted that I should have regard to the account given by Mr Coats in his record of interview with police about his level of intoxication. Mr Coats told police that he had “one stubie” of Bundy rum and a couple of Bongs the morning of the incident. I bear in mind that often when questioned by police there is a tendency for people to downplay their intoxication levels. Mr Wilson also invoked Mr Coats’s demeanour as depicted in the ERISP.

84. In many cases the sobriety or intoxication of the accused will be an important circumstance when considering the issue of specific intent. Intoxication is not a legal justification or defence. But it is necessary for me to consider whether I am satisfied beyond reasonable doubt that despite Mr Coats’s level of intoxication he had the necessary specific intent for the crime of attempted murder. Were Mr Coats intoxicated, it would not of itself prevent him from forming the necessary intent. The question is not whether Mr Coats had the capacity to form the specific intent nor is it enough that a person’s judgment may have been clouded by drugs or alcohol.

85. An intoxicated person may still be capable of forming the necessary intent. One who has actually formed the intent does not escape criminal responsibility because his intoxication has diminished his powers of self-control or affected his judgement. In other words I cannot find Mr Coats not guilty merely because I feel that his intoxication caused him to form an intention he would not have formed sober. However an intoxicated person may act before, or without, forming any particular intention at all. I interpolate an angry person may also act in this way. Were I to find that this is such a case, there being no onus on Mr Coats in this regard, I must find him not guilty of inflicting grievous bodily harm with the intent to kill Mr Quirk. If I find, bearing in mind where the onus lies, that Mr Coats acted spontaneously without actually turning his mind to the consequences of his actions at all I cannot be satisfied beyond reasonable doubt that he had the necessary intent to be guilty of the crime of attempted murder. I remind myself that it is not enough that Mr Coats actually intended to hit the deceased with the mattock handle. The question is about whether Mr Coats turned his mind to the achievement of the requisite consequence of killing Mr Quirk.

The evidence of Ms Rolton and Mr Saville

86. As I have said more than once in relation to the case against Mr Parkinson, the Crown rely on the evidence of Ms Rolton, although other evidence was called in discharge of the Crown’s duty to present a fair narrative of all of the facts relevant to a decision about criminal responsibility. However, the Crown focused on the evidence of Ms Rolton as laying the factual foundation for the conviction of Mr Parkinson of murder. It is therefore necessary that I be satisfied beyond reasonable doubt that the sequence of events to which she testified is reliable.

87. Likewise in relation to the case against Mr Coats, reliance is placed specifically on the evidence, again, of Ms Rolton but also of Mr Saville. Some support is said to be drawn from the statement of Ms Finnerly. Again to convict Mr Coats, I need to be satisfied beyond reasonable doubt that in substance those accounts are reliable, credible and acceptable.

88. I have summarised some of Ms Rolton’s evidence above and I will not repeat that evidence. It will be recalled that Ms Rolton first saw Mr Quirk immediately before the fight when he was abreast of 41 Vera Street. He was approaching Mr Parkinson with a certain determination and ignored Ms Rolton’s entreaties. She was about 5 metres away from him and said, “What are you doing? Don’t go down there” (142.44T). Mr Parkinson was then outside 45A Vera Street. I interpolate that Mr Saville after dropping Mr Quirk and Mr Harris off had driven along Vera Street on his way to drop Mr Wilson at his post and at that time saw Mr Parkinson in Vera Street by himself apparently speaking on his mobile phone (51.50 – 52.5T).

89. As I have said, Ms Rolton said that Mr Quirk attacked Mr Parkinson and started stabbing him with the knife in “all sorts of places, [his] shoulder, in his nuts I think, in his chest, in the stomach” (143.19T).

90. She said Mr Parkinson had fallen over a bush and Mr Quirk and Mr Parkinson were then rolling around fighting ending up on the driveway of No. 47. Her account was not entirely clear because having created a strong image of two men rolling fighting on the ground she said that Mr Quirk tripped over a crack in the driveway, dropping the baseball bat and the knife. Mr Parkinson, who too had apparently been on the ground, got up, picked up the bat and the knife and stabbed Mr Quirk “straight in the bottom of the leg” (143.29T). I infer that, on her account, Mr Quirk was still on the ground. Mr Parkinson then hit Mr Quirk “over his back and over the back of the head” (144.5T). If she is correct, Mr Parkinson who had already been severely stabbed in a life threatening way had regained his feet. Mr Quirk then crawled over to the grass (144.8T).

91. She said that she tried to help Mr Parkinson by stemming his bleeding because she was worried that Mr Quirk “would get charged with murder” (146.5T).

92. So far as the case against Mr Coats is concerned, Ms Rolton said that Mr Parkinson called out to Mr Coats after Mr Quirk had crawled away that Mr Quirk had “a blade” (144.43T). A number of witnesses testified to Mr Parkinson speaking words to that effect. Ms Rolton said that Mr Coats came out from his backyard “with a bigger baseball bat” (145.2T), obviously a reference to the mattock handle. She said Mr Coats smashed Mr Quirk with the mattock handle “over and over and over again … over his head, over his back” (145.8 - .14T). Her evidence was that Mr Coats struck Mr Quirk more than ten times saying “die, you dirty dog” (145.24 - .28T). She said that Mr Coats’s then partner, Gemma Thurlow kicked Mr Quirk in the back saying “I hope you die, you women bashing dog” (145.46T). Ms Thurlow did not give evidence at the trial and her current whereabouts is apparently unknown.

93. Because he was driving around the block having dropped Mr Wilson off, Mr Saville did not see the fight between Mr Parkinson and Mr Quirk. When he returned to the vicinity of 47 Vera Street, he saw Mr Quirk lying on the ground (48.14T). He said that he saw a number of people standing around a man laying on the ground, obviously Mr Parkinson and “[Mr Quirk] being belted up with the baseball bat by Mr Coats” (48.50T). The bat he described accorded with the mattock handle. He said Mr Coats was swinging the mattock handle from above his head height and down onto Mr Quirk (49.12T). Mr Saville said that Mr Coats struck Mr Quirk “it have to be at least a dozen times,” (49.21T) to “…the head, the belly, the ribs, the back. Everywhere” (49.24T). As he was striking him he heard Mr Coats say “you’re dead, you’re going to die” (49.33T).

94. It is perhaps convenient to interpolate at this point that Ms Christie Campbell, whose evidence I will deal with in more detail soon seemed quite sure that Mr Coats struck Mr Quirk with a mattock handle in the head “just once” (115.50 – 116.5T). She did not hear any words spoken (116.8T). Ms Finnerly’s account is of one blow, albeit struck hard. She described it as “a very vicious blow” (267.50T). She heard no words at that time but earlier when kicking Mr Quirk, an assault not relied on by the Crown, she heard Mr Coats say, “You’re dead.”

The cross-examination of Ms Rolton

95. In cross-examination Ms Rolton was somewhat argumentative, frequently not inclined to answer questions directly and she declined to answer some questions because she thought they were irrelevant. When it was explained to her she was obliged to answer questions she did.

96. It’s clear to me that although she was understandably defensive about this topic that there are grounds to find that Mr Quirk was motivated by sexual jealousy. As I have stated already Ms Rolton’s son had told Mr Quirk that Ms Rolton had sexual relations with Mr Parkinson, which Ms Rolton said “wasn’t happening” (148.34T). It is not necessary for me to make any finding about that topic one way or the other, but it certainly seems to have been a factor that Ms Rolton believed was affecting Mr Quirk’s state of mind because he had spoken to her about the rumour when he attended 43 Vera Street, contrary to his AVO at 6:30 a.m. on 10 March 2018. He obviously told Ms Rolton that he had heard it from her son because she said “he wasn’t happy” (149.10T). Shortly after Mr Quirk and Mr Parkinson were taken to hospital she rang her son and said that Mr Quirk was “really paranoid … you shouldn’t have said that I was sleeping with [Mr Parkinson]” (148.34T).

97. She also agreed that leading up to 10 March there had been a series of acts of violence or threats of violence toward her from Mr Quirk (150.30T). She initially denied that Mr Quirk had been in possession of a knife at the time of these threats (150.42T), but eventually agreed that she had complained to police of Mr Quirk threatening to kill her and her parents (151.14T).

98. She said when Mr Quirk was approaching before the fatal encounter he was walking at a fast pace like a “man on a mission” (166.26T) and that Mr Harris was close behind him trying to keep up. I interpolate Mr Harris didn’t take any part in the physical encounter between Mr Parkinson and Mr Quirk. She agreed that Mr Parkinson had done nothing to physically restrain her or her daughter (167.34T).

99. She denied that her view of 45A Vera Street during the first phase of the fight was obscured by trees and bushes. She did not say she “could see everything [but she] could see” (168.30T). She accepted that “maybe” her view would be obscured in some respects by the trees (168.36T). She accepted that the trees depicted in Exhibit A, photograph 41 limited her view of what ws happening (169.14T). However, she said that when the men started fighting she moved up towards 45A into a position where she could see (169.20T).

100. By reference to Exhibit A, photograph 41 she identified that Mr Parkinson fell over plants she described “Yuccas” near the front door of 45A. This was a little difficult to follow because she insisted that Mr Quirk had his back to No. 43. If this is so, it is difficult to see how Mr Parkinson would fall over the Yuccas (172.11 – 172.45T). Yuccas are apparently a drought resistant plant genus from the Americas. The men fell down as Mr Parkinson “tried to fend off one of the stabs” (172.49T). As they rolled around Mr Quirk continued to stab Mr Parkinson “on the ground” (173.14T). She agreed that Mr Quirk plunged the knife into Mr Parkinson’s chest “as they rolled on the ground” (173.20). Despite her calling out “stop”, Mr Quirk would not stop. By the time Mr Quirk dropped the knife and baseball bat the men had rolled onto the nature strip at No. 47 (174.44T). She described the knife as the red handled knife with the perforations in its blade as depicted in Exhibit A, photograph 65. This, of course, is manifestly incorrect.

101. Exhibit B, photograph 68 is another photograph of the red handled knife. Ms Rolton said she had difficulty looking at it because that was the knife which had been used to stab Mr Quirk (175.39T). When shown the photographs of the baseball bat recovered from Mr Saville’s car, she denied it was the bat with which Mr Quirk was armed because she was sure the bat was wooden (176.33T). She went to assist Mr Parkinson rather than Mr Quirk because she was concerned that if Mr Parkinson died, Mr Quirk would be charged with murder and she did not think that Mr Quirk’s injuries were that bad notwithstanding the fact he’d crawled away and laid down under the tree (177.40 - .48T).

102. Ms Rolton also agreed that earlier that day after Mr Parkinson had said over her phone to Mr Quirk, “I’ve got your missus” she texted Mr Quirk to say “I’m fine, stay where you are” (180.29T).

103. It was established that in her interview with police about these events, Ms Rolton said that Mr Parkinson hit Mr Quirk with a baseball bat and then stabbed him in the leg with a knife (198.10T; 184.15 - .43T). This reverses the order of events she gave in evidence. The greatest distance Mr Quirk and Mr Parkinson were apart during their encounter was “one metre” (198.23T). Ms Rolton was unsure whether Mr Quirk was still armed with the knife when he fell (198.27T).

95. When cross-examined by Mr Wilson, Ms Rolton admitted that she could have been mistaken about the knife that Mr Quirk had used to stab Mr Parkinson (205.30T). She assumed that that was the knife because she had seen Mr Quirk with it “before” (205.41T). She had never seen the ornate knife before (206.40T). Ms Rolton, without any confidence I thought, identified the mattock handle as “Mr Coats’s bat” (210.7T), but she denied that the mattock handle was the bat that Mr Quirk brought with him into Vera Street that day (210.13T). She insisted that she told the police that Mr Coats struck Mr Quirk more than 10 times (211.24T). When confronted with the transcript of her police interview, she agreed that she had said Mr Coats had hit Mr Quirk “at least 6” times with the mattock handle (212.4T). She accepted her account to the police “would be the more accurate version of it” (212.23T), but she wasn’t counting how many times Mr Coats hit Mr Quirk (212.36T). The truth was she couldn’t say how many times Mr Coats struck Mr Quirk (212.35 - .40T), but she would not accept it was less than six (212.46T). She accepted that she had not told the police that Mr Coats said “die, you dirty dog”, but she insisted he uttered those words (213.26 – 214.25T). She agreed that she said to the police that Mr Coats said to Mr Quirk as he hit him, “I’m going to get you fucked up in gaol, and you’re not going, you’re not going to live through this” (213.43T). She erroneously told the police that Mr Coats had taken Mr Quirk to the hospital when in fact Mr Saville had (215.18T). She assisted Mr Harris in attempting to apply a tourniquet to Mr Quirk’s leg. The tourniquet was fashioned from a piece of material wrapped in duct tape. She could not remember whether it was Mr Coats or Ms Finnerly who produced the duct tape (218.32T). It is clear from Ms Finnerly’s statement that she did not supply the duct tape because she was yelling for someone to get “gaffer tape” (267.40T).

The cross-examination of Mr Saville

105. In response to questions from Mr Carroll, Mr Saville said that it was Ms Rolton who kicked Mr Quirk and said “I hope you die” (50.31 - .39T), rather than Ms Thurlow. Not only does this seem not likely in the extreme, notwithstanding their current estrangement, it’s common ground at the trial that it was Ms Thurlow who acted in that way (145.45T; 267.30T). Mr Saville refused to assist in taking Mr Parkinson to hospital because he was not his “mate” (51.16T). He denied that his 4 second phone call to Mr Quirk after he dropped Mr Wilson off, was “a signal” (52.17T) even though it was made after Mr Harris and Mr Wilson were both in position and he had seen Mr Parkinson out the front of 45A on his mobile phone. He initially said the “phone just rang out” (53.27T). When he was challenged about its duration of 4 seconds he said, “well I assumed that he wasn’t going to answer” (53.30T). He then asserted that his purpose in calling Mr Quirk was to tell him “not [to] go there because it was a set up” (53.38T), even though Mr Parkinson was alone, talking on the phone and exhibiting no signs of being armed.

106. In cross-examination by Mr Wilson it became apparent that Mr Saville had made two police statements, the first on 10 March 2018 (54.36T) and the second on 23 March 2018 (54.40T). The contents were not entirely consistent, notwithstanding that the first statement was made on the very day the events took place.

107. In his first statement, Mr Saville said that when Mr Quirk contacted him he told him that Mr Parkinson was holding his family hostage and holding a gun to his daughter’s head. He said Mr Quirk was crying (57.5 - .35T). Mr Saville said that Mr Quirk asked him to pick him up from the public school and to collect Mr Wilson and Mr Harris on the way (59.12T). He agreed that that version was incorrect and was amended in the second statement (59.30T). The first statement also asserts that Mr Saville picked up Mr Wilson and Mr Harris and drove straight to Vera Street and when he arrived there he saw Mr Quirk lying on the ground in front of No. 47 (60.8T). He corrected his statement on 23 March 2018 at the invitation of the police to come in for another interview (60.24T). The first statement omitted all the aspects of the planned operation to which I have already referred above. Mr Saville explained that he was “confused” over what happened.

108. He was also asked whether he had said in the presence of Ms Callaghan, a registered nurse at Corowa Hospital, when Mr Saville had been told that Mr Quirk had died, “I’m going to get them. They won’t be living long. I’ll get them for you, mate”. He said that he had, “never said that at all” (63.8T).

109. In his uncontested evidence Detective Senior Constable (“DSC”) Simmons, the officer in charge of the investigation, confirmed that Sister Nicole Callaghan had made a statement that Mr Saville said those very words (284.25 - .40T). I interpolate there is no reason to disbelieve her. Mr Saville accepted that he was really angry at the hospital given what had happened to Mr Quirk (63.18T) and that his memory had been affected by those events and this accounts for the need to make a second statement (63.20 - .50T).

110. In the second statement Mr Saville gives details of picking up Mr Quirk, going to collect Mr Harris and Mr Wilson, dropping off Mr Quirk and Mr Harris on the corner of Guy and Walker Street, near the southern end of Vera Street, driving up Vera Street, seeing Mr Parkinson outside 45A or 47 on the telephone and dropping Mr Wilson off towards the end of Vera Street before it becomes McDonald Street. All of these details were omitted from his first statement. He said by the time he drove around the block and returned to 47 Vera Street which was less than 2 or 3 minutes (68.20T), Mr Quirk and Mr Parkinson were both injured and on the ground outside 47 (68.15T).

111. He identified the mattock handle from Exhibit B, photograph 1, but said he saw Mr Coats using it not Mr Quirk (68.45 - .50T). He denied that Mr Quirk had the mattock handle when he got out of the car (69.20T). He denied Mr Quirk was armed in any way despite having claimed to Mr Saville that Mr Parkinson was holding a gun to his daughter’s head (69.26 - .38T). He claimed he had never seen the baseball bat which police retrieved from the rear seat well behind the driver’s seat (70.6 - .11T). He said that the first time he had seen the baseball bat was when he had been shown the photograph in court (70.33T). He didn’t know Mr Quirk had a knife and had never seen the ornate knife before (70.41 - .71.12T).

112. Mr Saville said that when he returned to the vicinity of 47 Vera Street he saw Mr Coats striking Mr Quirk with a mattock handle (71.36T). He said he had arrived at that vicinity before the witness Shanae Johnson arrived (71.50 – 72.3T). He said that Ms Johnson did not cross the road but remained on the other side of the road near him and telephoned triple 0 (72.44 - .48T). He was challenged that he had said to the police on 10 March that Mr Coats hit Mr Quirk in the head “about six times” (76.3T). Although he accepted his recollection would have been better on 10 March, he denied he had exaggerated it in court by estimating twelve strikes with the mattock handle. He sought to explain his estimate to the police in terms of the blows to the head only. All strikes to all parts of the body would have numbered about twelve (76.15T). He did not remember seeing the bandaging being applied to Mr Quirk’s leg, but he noticed it when Mr Quirk was put into the back of his car (79.44T). He accepted that someone had made an effort to try and stop Mr Quirk’s bleeding (80.22T). He maintained in cross-examination that Mr Coats said words to the effect “you’re going to die” when he struck Mr Quirk (49.33T; 82.8T). He did not hear the threat to have Mr Quirk “fucked up in gaol” (82.13 - .18T).

The evidence of Mr Wilson

113. As I have said Mr Wilson was the person in Mr Quirk’s group who was to be positioned north of 47 Vera Street. He said what the people in Mr Quirk’s group were concerned about was that the police were going to be there to arrest Mr Quirk for breaching his AVO or something along those lines (93.1 - .18T). That this was so is somewhat confirmed by a text received by Ms Finnerly from Mr Quirk stating, “I am forty minutes away, I can’t go down that street, the cops are everywhere, where can we meet?” (267.10T) The message was obviously intended for Mr Parkinson (267.15T). Ms Milthorpe had said that a female police officer had carried out a patrol up and down Vera Street at about 10 a.m. (269.27T). This was probably Senior Constable (“SC”) Cann who was then stationed at Corowa Police Station. There was no evidence that she was specifically looking for Mr Quirk.

114. Mr Wilson was friends with both Mr Parkinson and Mr Quirk. He knew that Mr Quirk was coming to confront Mr Parkinson but thought it was probably “just talk” (94.5 - .24T). He said that’s why he got out of Mr Saville’s car. I interpolate this doesn’t really add up. If he was there as a mediator, one would have thought he would have got out where he saw Mr Parkinson. I am of the view that he was taking up a positon at the other end of the Street to keep an eye out for any police who might approach. He did not see the encounter but he heard the noise and started running down to where he heard it coming from (95.15T).

115. Mr Wilson (the witness) indicated by reference to a diagram he had previously drawn which became Exhibit D1.1 that when he drove past with Mr Saville, Mr Coats’s Honda vehicle was parked across the driveway and onto the lawn of 47 Vera Street and that Mr Parkinson was between it and the house when Mr Quirk approached followed by Mr Harris.

116. Mr Wilson does not appear to have seen anything of the encounter nor did he see anything of Mr Coat’s interaction with Mr Quirk after the encounter. He helped Mr Harris with bandaging Mr Quirk’s leg. There was a discussion involving Mr Coats, Mr Harris, Mr Saville and Mr Wilson about getting the injured Mr Parkinson and Mr Quirk to hospital in view of what seemed to be a delay with the arrival of ambulances. Mr Harris and Mr Wilson helped Mr Coats put Mr Parkinson in the back of Mr Coat’s vehicle. They then assisted to put Mr Quirk in the back of Mr Saville’s vehicle (103.40 – 104.41T).

117. I should state at this time that there was such discussion during the trial about the apparent delay in the arrival ambulance or ambulances notwithstanding the number of triple 0 calls that were made by various witnesses at the time. The quandary is cleared up largely by SC Cann’s statement which emerged during the evidence of DSC Simmons. It appears that the ambulances were “sitting off waiting for police” nearby due to a protocol that requires the officers to wait for the arrival of police in cases involving public danger (281.45T).

The evidence of Christie Campbell

118. As at 10 March 2018, Christie Campbell lived across the road from 47 Vera Street. She knew some of the participants including Ms. Rolton, Mr Quirk and Ms Finnerly. She did not know Mr Parkinson nor Mr Coats. She was at home in her front bedroom on 10 March 2018 and she heard a person whom I infer was Mr Parkinson loudly yelling and swearing in an angry way “over possessions or something” (112.26T). I would infer that this was Mr Parkinson’s modular lounge. She also saw Mr Parkinson and Mr Coats remove Mr Quirk’s boat from No. 43 to No. 47 and heard a phone call where Mr Parkinson was yelling, apparently at Mr Quirk and telling him “to get over there” (112.41T).

119. She acknowledged that her view of these things was somewhat obstructed by a tree in her front garden (114.5T). She also was prepared to say that her memory is “not very good” (118.7T). She said that the tree in her front yard blocks Ms Finnerly’s house, being 45A but that you could see the driveway of 47 and apparently, I infer, 43 (120.35 - .45T).

120. Later she saw Mr Quirk “turn up” (113.50T). She couldn’t see if he was carrying anything because of the obstruction by the tree (114.2T). She heard an argument between Mr Quirk and Mr Parkinson which was taking place “out the front of their house” (114.25T). In context this seems to be 45A or 47. There was scuffling, wrestling and grappling and she heard “someone” yell “He’s got a blade” (115.5T).

121. From this point, I am of the view that she is mistaken about the actions of each of Mr Quirk and Mr Parkinson. She stated that after she heard, “he’s got a blade” Mr Quirk started running and Mr Parkinson ran after him, knocking him to the ground, getting on top of him and stabbing him (115.6T). She said Mr Parkinson was stabbing Mr Quirk in the chest while he was sitting on top of him. She said there were about three or four stab wounds (115.5 - .29T). It is obvious to me in all the circumstances that Mr Quirk was chasing Mr Parkinson with the knife. It was Mr Quirk who was doing the stabbing as I explain below.

122. She said that Mr Quirk got up and ran over to a tree at the northern end of the front yard of No. 47 while Mr Parkinson fell to the ground (115.32T). Mr Quirk was just lying under the tree (115.37T).

123. As I have already said, she said that Mr Coats came out of No 47 and hit Mr Quirk in the head “with a bat or pole just once” she didn’t hear him say anything (115.49 – 116.8T).

124. I should say that given what appears to be an obvious error in Ms Campbell’s sequence of events, the Crown prosecutor made it clear he did not rely upon her evidence (136.40 - .45T).

125. Mr Carroll cross-examined Ms Campbell about a potential inconsistent statement Ms Campbell had made to her husband. She was asked whether she had said that she had seen Mr Quirk being stabbed in the leg (117.45T). She said:

Yes, I think I did, or stabbed, I said he was being stabbed repeatedly … I couldn’t tell where he was getting stabbed, but I thought it was in the chest. (117.45 - .50T).

She was clearly wrong about this. The person stabbed in the chest and abdomen three times was Mr Parkinson. Mr Quirk was only stabbed in the leg and nowhere else.

126. She was adamant that Mr Quirk fell over onto the driveway of No. 47 and was on his back and Mr Parkinson came, sat on top of him and “maybe looked like he was stabbing him” (122.5T).

127. Like Ms Rolton it must be said, Ms Campbell in cross-examination clarified that the scuffle started at “[Ms Finnerly’s] front steps” at 45A (123.19T). She did not see any baseball bat (123.29T). It wasn’t Mr Quirk who shouted out “He’s got a blade” (124.15T).

128. When the person she thought was Mr Quirk fell over on the driveway she said “I saw a knife. I saw a knife … the other guy had a knife and stabbed him” (124.30 - .35T). Reading part of her police statement did not seem to alter her evidence (125.30 – 126.5T). She later said that she didn’t see the knife (127.44T). She also said that at the time someone yelled “He’s got a blade”, her vision of Mr Quirk and Mr Parkinson was obscured by the tree (127.20T). Her view of the stabbing was unobstructed (128.49T).

129. Mr Wilson did not cross-examine. I will say at this point that although initially I found Ms Campbell’s evidence troubling and out of step with other evidence, on reflection I am satisfied that she was simply confused about who was on top doing the stabbing and who received the wounds to his chest. She described the scene very graphically more than once and I am satisfied that the person she saw on top was Mr Quirk and the person receiving the stab wounds to his chest and his abdomen was Mr Parkinson. She says nothing about the wound received by Mr Quirk and that may be because, as she said, at one stage she left the room to retrieve her phone to call the police and speak to her husband. Or it may be that she simply failed to notice the change in possession of the knife. Although she was a witness given to drawing her own conclusions and to a degree of speculation, I am satisfied that she saw the event she described except that, as I have said, Mr Quirk was the stabber and Mr Parkinson was the one being stabbed.

The evidence of Ms Johnson

130. Ms Johnson was in some respects an important witness. She struck me as a sober young woman who was then 22 years of age who happened upon the aftermath of the carnage when the car in which she was a passenger was driven along Vera Street. She, a friend of hers and her friend’s mother had been doing the rounds of the garage sales around Corowa. She recognised Ms Rolton standing over a male who was laying on the nature strip and saw blood and noticed that the persons there “all looked … panicked” (8.39T). She then noticed Mr Quirk who was also in front of No 47 but a little further away (8.50T). She knew them because they had been neighbours (9.5T). She did not then know Mr Parkinson. She did not know Mr Coats. But Mr Coats, I infer was the person she described as “just pacing around the yard” who went up to Mr Quirk a couple of times and said things to him (9.41T). She could not remember what he was saying (9.43T). He was swearing (9.48T). He seemed in a panic and was walking around (10.14T).

131. Under cross-examination she said that she rang triple 0 because she had been informed that none of the others had waited on the phone. She believed “you were meant to stay on the phone” (11.14T).

132. Ms Johnson also overheard Ms Rolton’s telephone conversation with her son about Mr Quirk being really paranoid and admonishing the son about saying something about sexual relations between her and Mr Parkinson. She also said that Ms Rolton said “they’re dead” (12.5T). Ms Johnson knew that Jarrod is Ms Rolton’s son. She noticed that there was a sort of bandage tied around Mr Quirk’s leg (16.17T). Like others she did not regard Mr Quirk as being seriously hurt at that time (17.3T). But it was clear that Mr Parkinson was losing a lot of blood. It is obvious to me, as a matter of great regret, that the people at the scene did not seem to appreciate the serious nature of the wound that Mr Quirk had suffered. They clearly did not appreciate that he had severed his femoral artery and vein.

133. She said in answer to Mr Wilson’s questions that Mr Coats was bending over Mr Quirk and yelling at him aggressively (17.30T). In her description of him she said “he wasn’t wearing a t-shirt and he looked to be off his face” (17.45T). She still remembered that and said, “in Corowa I see a lot of people that are on drugs and that’s just what I think he looked like” (18.3T). In a small community she knew a lot of people to be drug users (18.6T). With this experience she had seen the signs of drug use in other people (18.25T). She described Mr Coats to the police by saying, “the pupils of his eyes were large and looked to be affected by drugs … he looked really scary” (18.28 - .33T). She also said that Mr Coats was the driver of the car that took Mr Parkinson to hospital while Mr Quirk was removed by a person in a white SUV (19.50T). By the time Mr Quirk was taken to hospital he looked like he had passed out. Ms Johnson said “he was quite limp at that point” (20.40T).

Mr Parkinson and the police

134. DSC Simmons said that Mr Parkinson’s mobile phone had been subject to Cellebrite analysis following his arrest which demonstrated that on 10 March 2018 at 11:58:24 he commenced a phone call of 7 minutes and 55 seconds in duration (272.3T). This corroborates what Mr Saville said about what he saw when he drove north along Vera Street (271.35 – 272.20T). I would infer that he was still probably on the phone when Mr Quirk approached, because SC Cann made a statement that the first message she received via police radio to attend Vera Street came in at about 12:05 hours stating that a male had been stabbed and bashed: (281.7 - .16T).

135. In cross-examination by Mr Carroll DSC Simmons said that he spoke to Mr Parkinson while he was still in hospital. He was accompanied by his colleague Det. Rolfe (274T). It was not an official police interview and Mr Parkinson was not cautioned because DSC Simmons was aware that he was on strong pain killers and formed a view “it wouldn’t have been fair to speak to him in any official or questioning capacity” (274.15T). At this stage Mr Parkinson was in the Critical Care Unit. DSC Simmons indicated that when he was better later he would wish to have a further conversation under caution (276.30T; 277.15T). He asked Mr Parkinson not to tell him anything, but he was checking whether he remembered the events (275.25 - .38T). Notwithstanding what the officer had said, Mr Parkinson volunteered (275.45T):

“I remember the whole thing. It was self-defence. I disarmed him. The one in the chest went right through me and out the back.”

At that stage DSC Simmons knew there was only one knife involved (276.5T).

136. Detective Senior Constable Simmons informed Mr Parkinson that Mr Quirk had died. It was put to him by Mr Carroll that that was a deliberate attempt to extract “some sort of admission or some sort of confession” which the officer denied (277.5T). As the officer said, and I accept, any admission extracted in such circumstances may not be worth much in court (277.15T).

137. Detective Senior Constable Simmons knew from the medical records he had perused that Mr Parkinson had spoken to social workers about the matter stating that he had acted in self-defence and complaining that he’d been suffering flash backs form the event (278.42T). He was receiving medication to help him cope with the anxiety (278.50T).

138. Detective Senior Constable Simmons had read the clinical notes where Mr Parkinson complained of nightmares and panic attacks related to thinking about the incident. These matters, of course, sound similar to post traumatic stress symptoms. He expressed regret about Mr Quirk’s daughter being left without a father. He described his role in the matter as self-defence. At that stage it seemed that Mr Coats had been charged with murder, which charge was eventually dropped after the post-mortem report was obtained from Dr Elstub (279.25 - .35T).

139. When Mr Parkinson was well enough to be discharged he was spoken to by SC Steve Campbell at the Albury Hospital. He was administered the usual caution. Senior Constable Campbell arrested him at Albury Hospital. After cautioning Mr Parkinson and informing him he was under arrest for the murder of Mr Quirk, Mr Parkinson said:

Murder … that’s a big one, I wasn’t the one that brought the knife to the fight.

Mr Parkinson added “Murder I don’t think I’m the one that killed him”.

140. When he was taken to Albury Police Station, on legal advice he declined to answer questions. Obviously, in this regard, Mr Parkinson exercised the common right that we all have to refuse to answer questions when asked about our part in matters by law enforcement officers. This accords with the caution the officers themselves gave him and with the legal advice he apparently received. I will not draw any adverse inference in Mr Parkinson’s case concerning his exercise of the right to silence by refusing to submit to a formal interview. Obviously the other accounts he has given voluntarily, as I have referred to already are part of the evidence in the trial.

Dr Heinrich Schwalb’s evidence

141. It will be recalled that Dr Heinrich Schwalb was the surgeon who operated on Mr Parkinson when he presented to Albury Hospital in a near death state. Dr Schwalb said that he was told that when Mr Parkinson was received at Albury Hospital his blood pressure was 40 over 20, a reading which is usually incompatible with life (188.20T). By the time he arrived at Albury Hospital he had already received 8 units of blood which indicates in an adult male that he had probably lost his whole body volume of blood while being transported to hospital (188.35T).

142. Dr Schwalb found two fairly large stab wounds in the chest wall in front and a very big wound on the right side of Mr Parkinson’s abdomen (188.40T). Dr Schwalb said that the tears in Mr Parkinson’s chest wall penetrated his thoracic cavity (189.39T). He delegated the task of managing those stab wounds to his competent registrar while he worked on the abdominal wound himself (189.37 – 190.4T). I have described the abdominal wound previously, however, I will repeat that it divided the liver, travelled into the stomach and duodenum and then into the pancreas. It seems that the main source of the bleed at that stage were the large blood vessels around the pancreas which Dr Schwalb ligated (190.15T).

143. As I have said, the doctor identified the ornate knife as being the type of weapon that could inflict the stab wounds he treated.

144. Dr Schwalb said that the chest wounds caused a pneumothorax or a collapsed lung (194.13T). When this occurs the oxygenation and breathing is impaired, this causes the heart and the big vessels to be pushed over, resulting in a tension pneumothorax which is capable of leading to cardiac arrest which will usually be fatal (194.15T). Dr Schwalb said that is why it was important to try and re-establish expansion of the collapsed lung.

Mr Coats interaction with the police.

145. Mr Coats returned from Corowa Hospital while SC Cann was still on the scene. She recorded her conversation with Mr Coats (part of Exhibit C). The substance of Mr Coats’s account is that Mr Quirk had attacked Mr Parkinson with “a baton and a big knife” and Mr Parkinson was “back peddling”. Mr Quirk stabbed him in the groin, in the chest and in the leg. He said that Mr Quirk got Mr Parkinson “about six times”. He said by the time he got from his backyard into his front yard both Mr Parkinson and Mr Quirk were on the ground bleeding heavily. He only saw Mr Quirk attack Mr Parkinson. He explained how Mr Parkinson was taken to the hospital in his vehicle and Mr Quirk in the white Pajero. He was unable to identify Mr Saville for the officer. He did say, “Fuck Mick, hope he dies”. This, of course, is a reference to Mr Quirk.

146. Although it does not appear in the recorded statement SC Cann recorded this part of the conversation in her statement dated 10 March 2018:

“Again, I asked Coats what had happened. He said, “Mick, he’s fucking here with a fucking knife”. I said, “Where were you?” [Coats] said “I was over there (indicating to the driveway fence of the property) behind the gate. I heard yelling. I looked over and [Mr Parkinson] is backing away from Mick like trying to get away from him and Mick he’s stabbing at him. I ran inside and came out the front door and Mick’s on the ground bleeding over there” indicating an area near a tap on the northern side of the front fence. [Mr Parkinson] is on the trampoline bleeding everywhere. I have to tell you that Mick brought a big red looking club with him too. I picked it up and threw it over there down the side of the house. Go and have a look. If you get in the bushes and look down the side of the house you should see it. [Mr Coats] was pointing to the northern side of the house.” (282.38 - .49T)

Mr Coats’s account in this regard also supports the finding I made about the nature of “bat” that Mr Quirk brought with him to the fight.

147. Mr Coats submitted to an ERISP at Albury Police Station on the same day (Exhibit C).

148. The interview took about 70 minutes. My impression of seeing Mr Coats was that he was not completely coherent. He was dressed as he had been at his arrest, shirtless in shorts or board shorts. I will not go through the detail of all of the ERISP contents. It was not relied upon by the Crown or Mr Wilson in any particular regard. Mr Wilson asked me to consider it in the context of his argument concerning intoxication. He admitted having lifted a rock and contemplating throwing it down on Mr Quirk, but desisted from that idea because of the intervention of Ms Finnerly. He adhered to his account that Mr Quirk brought the mattock handle to the fight. When it was put to him that a number of witnesses had said that he had struck Mr Quirk with a wooden bat, he, in a somewhat incoherent, way denied it. He said the bat was massive. When asked again whether he struck Mr Quirk with a bat, Mr Coats said “I didn’t have a bat”. He said the bat was lying near Mr Quirk and he picked it up and threw it away because it was covered in blood. He was unable to explain how Mr Quirk carried the mattock handle. And it was put to him again that people described him as striking Mr Quirk with a mattock handle. He said “Well I didn’t”. He repeated that he’d thrown it away. When asked if he threw the bat away to hide it, he said that he threw it away from where everyone was. He denied hitting Mr Quirk with the bat for a fourth time.

149. He said he had drunk a stubbie of mixed alcoholic drink and smoked two bongs earlier in the morning before these events occurred. When detectives asked him about the comment he made to SC Cann about hoping Mick dies. He said:

“I didn’t think he fucking would. Do you know what I mean? Like, I don’t wish my worst enemy to die. You know what I mean? Like fuck. … I shouldn’t have said that.”

150. He denied that his cannabis was laced with “ice, snow cones or anything like that”.

151. Obviously, given his plea of guilty to the third charge, and the evidence of the many other witnesses who said that Mr Coats struck Mr Quirk with a mattock handle, I reject Mr Coats’s denial to the police of doing so as a version of events that could not reasonably be true, as I have said. However, the question remains, to which I will return, whether I am satisfied beyond reasonable doubt that when he struck Mr Quirk with the mattock handle he had the requisite specific intention to kill Mr Quirk.

152. It is convenient to interpolate now about the words used by Mr Coats, as I have said, Mr Wilson’s argument, and the cross-examination of witnesses was based upon the account that Mr Coats did not use language which was indicative of a present intention to kill. The substance of the threat Mr Wilson said was made was representative of an intention on Mr Coats’s part to have Mr Quirk dealt with in gaol. This contention derives support as I have said, from Ms Rolton’s statement to police and from the recording of the triple 0 telephone call that Mr Luke Harris made to the ambulance service (Exhibit D2.2). It is unnecessary to set it out in full. But he made the call from the scene of events and the record picks up a good deal of background noise including voices and the like. Towards its conclusion there is a male voice in the background. Although it’s indistinct and not in full, there are fragments of a threat to get someone in goal. Mr Wilson relies upon that as direct evidence, albeit in part of what was said.

153. Ms Lewis who lived at No 41 said that as Mr Coats drove away to take Mr Parkinson to hospital he said in profane language that they should let Mr Quirk die (223.5T). In this she was corroborated by her partner, Mr Burchett, whose statement was read during DSC Simmons evidence (266.5 - .10T). Mr Wilson did not challenge that account in cross-examination. It is obviously broadly consistent with what Mr Coats said to SC Cann.

Dr Elstub and the cause of Mr Quirk’s non-fatal injuries

154. As I have already said, Dr Elstub, from her post mortem examination detailed a number of non-fatal injuries suffered by Mr Quirk on 10 March 2018. She also had regard to the opinion of Professor Michael Buckland, a neuropathologist concerning the possibility of Mr Quirk having suffered a traumatic brain injury from the trauma inflicted by Mr Coats. Leaving aside superficial injuries of which there were many, Dr Elstub, as I have already detailed identified as probable that blunt force trauma caused a number of fractures to the bones of Mr Quirk’s face (240.35T; 255.48T). As I have said, they are fractures to the left eye socket, the left nasal bone and the left cheek bone. She also, without objection, gave evidence that Professor Buckland formed the conclusion that Mr Quirk suffered a mild traumatic axonal injury to the brain (240.4T). None of these injuries were the cause of the death and each of them can be attributed to blunt force trauma of the type that might be inflicted through contact of Mr Quirk’s head with a swinging mattock handle (254.8 - .22T).

155. Dr Elstub also gave evidence that is relevant to the determination of how many blows might be necessary to inflict this group of injuries on Mr Quirk. She was asked whether a single blow with the thicker end of the mattock handle across someone’s face could cause that group of injuries. She said at (252.45T):

“In one blow? I think it’s probably possible, but I think it’s probably unlikely just because of where these three things are. I think it would be difficult to line up all those three in one, unless the thickness was quite significant and depending on the size of the person’s face.”

When she spoke of the thickness of the implement being quite significant she held up her thumb and forefinger indicating a distance of about three inches in the old measure (252.48T). When pressed about the mattock head, she said at (253.14T):

“I think it’s possible but there’s no way of knowing for sure.”

After a series of questions of Dr Elstub by reference to the mattock handle as depicted in Exhibit B, the expert said that it could cause the orthopaedic injuries to Mr Quirk’s face (254.22T).

156. Concerning the brain injury, she agreed that Professor Buckland expressed himself in terms of the histological evidence, which Dr Elstub prepared for his consideration, as being “suspicious for axonal injury” (254.42T). She said that this injury is of the type that one might see when someone gets a head knock and becomes disorientated or unconscious as in concussion (254.48 – 255.4T).

157. The photographs of the mattock handle in Exhibit B include photographs of its wider end lined up with a forensic set square (Exhibit B, photograph 2). From my examination of that photograph it appears that the width of the wider end of the mattock handle which normally holds the mattock head is between 7.5 and 8 centimetres. Accordingly it more than accommodates Dr Elstub’s indication of an implement of greater than three inches in width being capable of inflicting the various facial fractures, and I would infer the mild brain injury, with one blow.

158. I bear in mind that Ms Rolton and Mr Saville said that Mr Coats struck Mr Quirk about the upper body as well as the head. In this regard, Dr Elstub mentioned four rib fractures on the left side. Dr Elstub said that these fractures were an example of blunt force injury and could have been caused by efforts at resuscitation by way of CPR (257.5T). In fact the doctor said that the trauma of attempted resuscitation in a case like Mr Quirk’s was a reason as equally likely as any other for the presence of rib fractures (257.43 – 258.7T).

The reliability of the evidence of Ms Rolton

159. Both Mr Carroll and Mr Wilson submitted that I should find Ms Rolton’s evidence unreliable and put it to one side. And there were a number of significant submissions made in that regard. The factors relied upon include what was said to be the exaggeration of the number of blows inflicted by Mr Coats on Mr Quirk. There is no doubt that her evidence about that matter changed over time growing from six to twelve. The twelve blows version derives support from Mr Saville, but the entirely independent witnesses, Ms Campbell and Ms Finnerly both have one blow only. As I have said, in many ways I was impressed by Ms Campbell’s evidence despite her obvious mistake about who was stabbing whom. Ms Finnerly’s account also appeared coherent, consistent and measured.

160. The next point was the misidentification of the knife brought to the fight by Mr Quirk. She insisted it was the red handled knife and not the ornate knife which she had never seen before. Her description of the baseball bat is also contrary to the finding I have made on the basis of other evidence. I accept that Mr Quirk brought the mattock handle with him. Ms Rolton also said that Mr Coats was hosing the blood off the driveway at 47, when in fact on the evidence of SC Cann it was Ms Thurlow (282.1T). Mr Wilson argued that Mr Coats produced the duct tape for the tourniquet and assisted in its application. This offer of assistance to Mr Quirk was inconsistent with Ms Rolton’s evidence that he uttered words indicating an intention to kill, according to Mr Wilson’s argument.

161. Mr Carroll adopted these criticisms, although most of them relate to the case against Mr Coats and not against Mr Parkinson. But he did point out that Ms Rolton was not an independent witness, she was argumentative, deflected questions and sought not to answer others. He submitted that I would not have been impressed by her demeanour as a witness.

162. It is important, I think, that the particular inconsistencies in her evidence in Mr Coats’s case be brought to bear when one is assessing the reliability of Ms Rolton’s recall generally. There is no contemporaneous evidence at all that she ever told the police that when Mr Coats struck Mr Quirk he said “die you dirty dog”. As Mr Wilson cross-examined her, it is apparent that she told the police that Mr Coats said, “I’m going to get you fucked up in gaol and you’re not going to live through this”, as I have previously said. The difference is significant.

163. I am also of the view that given her significant bereavement, she is not a truly independent witness. But most significantly, I simply prefer the evidence of other witnesses. In particular the evidence of Ms Campbell and Ms Finnerly is more persuasive as to the sequence of events during the confrontation at 45A and 47 Vera Street.

164. Without wishing to detract from what I have said already, a particular reason why I prefer the evidence of Ms Campbell to the evidence of Ms Rolton is because of the detailed evidence of Dr Schwalb which, it seems to me, fits in better with Ms Campbell’s description of the infliction of strong knife thrusts into Mr Parkinson’s chest and abdominal area while he was supine on the ground with Mr Quirk sitting or crouching over him. It seems to me that having inflicted these severe injuries, Mr Quirk either discarded the knife believing his work was done or it slipped from his grasp enabling Mr Parkinson to grab it and thrust upward with it into the back of Mr Quirk’s left knee as described by Dr Elstub. I am not persuaded that at that time Mr Quirk still had the mattock handle. The indication that Ms Campbell gave in evidence was of a person grasping the hilt of a knife in both hands and thrusting downwards. The consistency of her account with other evidence, on reflection, impressed me. Ms Campbell’s description of that central event seems to me to be a much more likely mechanism for the infliction of the injuries suffered by both Mr Parkinson and Mr Quirk than the description of Ms Rolton of Mr Quirk stabbing at Mr Parkinson while they were both on their feet.

165. Moreover, given that the incise injuries to Mr Quirk’s face, right arm and left leg are consistent, as Dr Elstub said, with a struggle over possession of the knife, this too suggests to me a hand to hand struggle within the confines of close engagement. And doing the best I can with the evidence as it is, I find that is what happened.

The reliability of Mr Saville

166. Mr Wilson put forward a number of arguments as to why Mr Saville’s evidence should be regarded as unreliable. Many of them were aspects of the same argument, that Mr Saville was not truly independent. He was the person to whom Mr Quirk turned for assistance to confront Mr Parkinson. The objective evidence indicated that Mr Saville was involved. He helped organise Mr Harris and Mr Wilson. He gave the four second signal to Mr Quirk when they were in place. He claimed that no one was armed. He feared a setup when in fact Mr Parkinson was the person being set up and Mr Saville was involved in that setup. Given that I have accepted that Mr Quirk brought the mattock handle as well as the knife to the fight, I find that Mr Saville must have been aware of its existence. He told Sister Callahan that he was going to get those responsible for Mr Quirk’s death in his mind. His evidence about Ms Rolton kicking Mr Quirk was simply wrong. And he failed to see Mr Harris’ efforts to apply a tourniquet to Mr Quirk’s wound. The evidence of Ms Johnson suggested that Mr Saville remained in his car at all times. On his own account he did not cross Vera Street and remained on the other side of the road. And most importantly he gave two versions to the police. The first version of which given on 10 March 2018 omitted all the aspects of the planned operation in which he was intimately involved. In my judgment these points are well made and they cast significant doubt upon the reliability of his account.

166. Again, however, importantly in terms of the number of blows struck, as I have already indicated, I prefer the evidence of Ms Campbell and Ms Finnerly. Mr Saville, in any event, exaggerated the number of blows compared to what he had told the police. His account to the police of the number of blows struck by Mr Coats, which is the only part of the encounter he claimed to have witnessed was given after he had said to Sister Callahan that he would get those whom he regarded as responsible for Mr Quirk’s death. He cannot be counted as independent and objective in the evidence that he gave.

Decision about the guilt Mr Parkinson

168. As I have made clear, my preference for the evidence of Ms Campbell over Ms Rolton means that I am not persuaded that the version of events for which the Crown contends is correct. In particular I am not persuaded that there was any significant or material break or interruption in the struggle between the two men providing the opportunity for Mr Parkinson to walk away, punch Mr Quirk, hit him in some other way, or to retreat to a safe place even, with respect, if any of those “options” were realistic alternatives available to a person in Mr Parkinson’s position. I am not satisfied that there was any critical break in the proceedings to provide realistically for such an opportunity. Rather the violent struggle between them, once initiated by Mr Quirk, constituted a continuous episode of violence until each of them was exhausted, probably by loss of blood. But that is not necessarily the end of the matter.

169. Bearing in mind the legal elements of the crime of murder, which in summary are conduct of an accused causing death performed with the specific intent of inflicting at least grievous bodily harm and not done in self-defence, it is clear, for instance that, as a starting point that Mr Parkinson’s conduct in stabbing Mr Quirk in the lower left thigh immediately after Mr Quirk had stabbed him in the chest and abdomen caused Mr Quirk’s death. I am satisfied beyond reasonable doubt that Mr Parkinson’s conduct caused Mr Quirk’s death.

170. The next question is whether that single stab wound to Mr Quirk’s left thigh was inflicted with the actual specific intent of causing Mr Quirk grievous bodily harm. From its location, I think I can readily put aside any question about an intention to kill. Ordinary persons are not anatomists and are unlikely to appreciate the real risk of cutting the femoral artery and vein that a stab wound to the leg involves. One has to look at all the circumstances. A person in Mr Parkinson’s position who has been attacked by a determined man armed with a knife and who has been severely stabbed during the struggle is hardly likely to turn his mind to the question, as he lashes out with the very knife used to attack him, which the attacker has dropped, whether there might be some vital organ or vessel in the place he lashes out at, injury to which will cause the attacker’s death.

171. It does not follow, however, that Mr Parkinson did not turn his mind to the infliction of grievous bodily harm when he stabbed Mr Quirk. I will repeat, he was under severe attack by a determined man fuelled by the insidious drug ice, armed with a knife and at least initially with what might best be described as a club. His attacker had got the better of him, was on top of him and stabbing him. I have already said that the incise wounds suffered by Mr Quirk suggest a desperate struggle for possession of the knife. When Mr Parkinson obtained what was temporary control of it, I have no doubt that he intended to stop his attacker in his tracks by inflicting a really serious injury upon him to disable him sufficiently to enable Mr Parkinson to get away. This is what happened. I am satisfied beyond reasonable doubt that when he stabbed him in the leg, Mr Parkinson intended to inflict really serious bodily on him.

172. Were this all there is to this case, Mr Parkinson would be guilty of murder. But that is not all there is. As I have said above in setting out my legal directions, a person is not criminally responsible for what would otherwise be murder if the person carries out the conduct said to constitute murder in self-defence. Where the facts raise that question in a realistic way, as they do here, it is for the Crown to prove beyond reasonable doubt that Mr Parkinson did not stab Mr Quirk in self-defence.

173. I repeat there are two questions to be considered. The first is has the Crown excluded beyond reasonable doubt the possibility that Mr Parkinson believed that stabbing Mr Quirk was necessary in order to defend himself. The second question is has the Crown excluded beyond reasonable ground the possibility that stabbing Mr Quirk was a reasonable response in the circumstances as Mr Parkinson perceived them.

174. As ever, these questions need to be considered and answered in the light of all circumstances established by evidence I regard as reliable. The starting point must be that these two men, tacitly or otherwise, agreed to settle their differences in a fist fight. I cannot pass over this consideration without observing that that was an illegal arrangement conducive to public disorder which the Court does not condone. People taking the law into their own hands constitute a significant threat to public safety and order. This illegal arrangement is to be strongly denounced.

175. The next important point in context, it seems to me, is that Mr Quirk decided to take advantage of that illegal arrangement as an opportunity to settle whatever scores he perceived he had with Mr Parkinson by attending the rendezvous armed with a knife and a club. He also increased his opportunity to achieve his purpose by enlisting friends to stand watch for any approach of the police before his business was done. I appreciate that Mr Carroll submitted that Mr Harris and Mr Wilson were there to provide physical back up if necessary. In my view the evidence is that they were there in the role of cockatoo. I infer Mr Quirk didn’t think he required back up after he had armed himself to obtain a definite advantage over Mr Parkinson. Moreover, when Mr Parkinson fought back, Mr Harris who was apparently quite close by did not seek to intervene in the fight. Mr Wilson who was further away when he heard the commotion left his post and ran towards it. But he was friends with both and was hardly likely to assist one over the other. However, I am not persuaded that he was there in any mediator’s role. That is not why he was enlisted.

176. The next circumstance established by the evidence, which has to be borne in mind, is that Mr Quirk approached the rendezvous having ingested what Dr Elstub described as a high level of ice. Doubtless this insidious drug heightened his levels of aggression and determination to harm Mr Parkinson. As I have said before, Ms Rolton, whose evidence I accept in this regard, said he was “a force to be reckoned with” and “a man on a mission”. From their 18 year relationship she would be well placed to make these assessments.

177. Finally, while this may be hurtful and hard for those who loved Mr Quirk to hear, he went to the rendezvous intent on inflicting grievous bodily harm on Mr Parkinson, if not to kill him. His actions in attacking Mr Parkinson, viciously as he did, amply bear out that intention notwithstanding his level of ice intoxication. He had obviously turned his mind to the consequences of his intended actions.

178. These circumstances provide the context in which I must ask myself whether the Crown has excluded the possibility that when he stabbed Mr Quirk, Mr Parkinson believed that that action was necessary in order to defend himself. One could hardly conceive of a clearer case. It makes no difference that he was willing to engage in a fist fight with Mr Quirk. This case does not depend, as others may do, upon some nuanced or subtle assessment of the state of mind of the accused at the time he acted. There is no risk of some imbalanced assessment involving an accused’s possibly unreasonable belief that the deceased presented a threat to the safety of the accused. From the moment of his approach, Mr Quirk presented a clear and present danger to Mr Parkinson. On the facts, as I have found them to be, and even on Ms Rolton’s recollection, Mr Parkinson had suffered severe stab wounds immediately prior to obtaining, what I regard as temporary, control of the knife and stabbing Mr Quirk in the back of the left leg. Although the facts are not very clear, I tend to the view that after Mr Quirk stabbed Mr Parkinson twice in the chest and once in the upper abdomen, more or less as described by Ms Campbell, and while he was still bestride Mr Parkinson, either Mr Parkinson’s struggling with him or some other factor caused him then to drop the knife enabling Mr Parkinson to grasp it with his right hand and thrust upwards into the back of the lower part of Mr Quirk’s left thigh. Mr Parkinson did not go on with some frenzied continued attack. I am not satisfied that he gained control of the mattock handle and commenced bashing Mr Quirk with it. I am not satisfied that he in any way pursued Mr Quirk. He was in no position to do any of these things. The infliction of the painful stab wound on Mr Quirk was itself enough to achieve Mr Parkinson’s purpose in disabling Mr Quirk from further participation in his attack on Mr Parkinson. I am not satisfied beyond reasonable doubt that the Crown has excluded the first limb of self-defence.

179. Although the law deplores violence of any type, it recognises violence as justified when it constitutes a reasonable response in or to the circumstances as the accused perceived them to be. Again, it is hard to conceive of a clearer case. Mr Parkinson was subject to a determined, indeed frenzied, attack by a drug fueled assailant, struggling to disarm him of the knife and striking out to inflict a single stab wound when he temporarily gained possession of it was a reasonable response in the circumstances as Mr Parkinson, correctly, perceived them to be. I am not satisfied beyond reasonable doubt that the Crown has excluded the second limb of self-defence.

180. It follows from this that I am bound to acquit Mr Parkinson of the murder of Mr Quirk. I will return a verdict of not guilty at the end of this judgment when I have dealt with the criminal responsibility of Mr Coats. Given this decision it is pointless to conjure with the question, were my decision on self-defence otherwise are there circumstances which would justify a finding of manslaughter rather than murder. That question simply does not arise on the findings I have made.

Decision about the guilt of Mr Coats

181. There are basically three issues to be determined in Mr Coats’s case. The single legal issue in Mr Coats’s case is whether he intended to kill Mr Quirk when he struck him with the mattock handle. This single ultimate issue really divides itself into three sub-issues. First, how many times did Mr Coats strike Mr Quirk with the mattock handle? The nature of a person’s actions is always relevant to a determination of their intention. Secondly, what words did he utter as he delivered the blow or blows? A person’s words may betray important information about their contemporaneous state of mind. Thirdly, was he intoxicated? Intoxication is always relevant to a person’s state of mind. It may make a person act as they wouldn’t otherwise; or it may make them act without thinking. The important matter to bear in mind as I have set out above in my legal directions is that the Crown need to persuade me beyond reasonable doubt that at the time he struck the blow or blows, Mr Coats had the actual specific intent to kill Mr Quirk. That is to say, he acted with intent to cause Mr Quirk’s death. It matters not that the blow or blows proved ineffective to achieve that purpose. The charge he faces is attempted murder.

182. When Mr Coats emerged from his house, Mr Quirk was already down and in a bad way. There is, of course, no question at that time of Mr Coats coming to the aid of his friend, Mr Parkinson. That fight was over. Whether his actions were motivated by the attack on Mr Parkinson is relevant to but not determinative of the question of his state of mind at the time.

183. I have already explained why I prefer the evidence of Ms Campbell, and Ms Finnerly for that matter, over the accounts given by Ms Rolton and Mr Saville. I will not go over that ground again. Accepting as I do the accounts of the independent witnesses, I find that Mr Coats struck one blow, “just one”, to Mr Quirk’s head with the mattock handle. I accept that it involved a lusty full blooded swing from above Mr Coats’s shoulders. Ms Finnerly described it as a “very vicious blow” and I accept that description is apt. I reject the suggestion that he struck Mr Quirk otherwise about the body. The fractures to the ribs have not been proved to be other than due to subsequent efforts at resuscitation when various attempts were being made to sustain his life at Corowa Hospital. Ms Finnerly’s intervention is probably the explanation for Mr Coats desisting from inflicting further blows, even though he was aggressive towards her in response to it. I am satisfied on the basis of Dr Elstub’s evidence that I have set out that one full blooded lusty vicious blow was sufficient in this case to inflict the three facial fractures and the axonal brain injury.

184. There is no doubt that at or about the time Mr Coats struck that blow, he uttered hateful words indicating he wished for or desired Mr Quirk’s death. I am no satisfied that he said “die you dirty dog” as contended for in evidence by Ms Rolton or “you’re dead, you’re going to die” as Mr Saville put it. I am not confident that I could rely upon them as independent and accurate witnesses for the reasons I have already given. In particular, I accept the argument that the words spoken were those relayed to police by Ms Rolton: “you’re a putrid dog, I am going to get you fucked up in gaol, you’re not going to live through this”. I also accept Mr Wilson’s argument that that statement is corroborated by the Harris triple 0 call which is Exhibit D2.2, even if the statement is somewhat fragmented, being background speech picked up incidentally. The statement, “You’re dead” that Ms Finnerly gives evidence of did not accompany the mattock handle blow. She said those words were uttered when Mr Coats kicked Mr Quirk in the head. It’s not said that that action caused any grievous bodily harm. The vicious blow was delivered, apparently without comment. I accept that when he left the scene to take Mr Parkinson to hospital he may have expressed the desire that Mr Quirk be left to die. He certainly said to SC Cann that he hoped Mr Quirk would die. I afford some weight, but not much, to his later expressions of regret for saying that, when interviewed by police. This is not an area where one should split too many hairs. There is no doubt looking at the evidence as a whole, Mr Coats’s language at or about the time these events occurred bespoke il-will toward Mr Quirk. I am not satisfied that on their own they prove an intention to kill at the time he struck the very vicious blow.

185. I turn then to the question of intoxication and its effect on Mr Coats’s state of mind at the relevant time. I am satisfied that Mr Coats was intoxicated. Although he claimed only to have imbibed and inhaled one alcoholic rum drink and two bongs of cannabis without further enhancement, it has to be recognised, that it is the experience of the courts, that citizens tend to understate, if not lie about, how much they’ve had to drink or what drugs they may have taken when questioned by police. Moreover, I was impressed by Ms Johnson’s evidence and the expression “off his face” is a descriptive one, the meaning of which is clear, even if it is difficult to break it down into its constituent parts. Although she is a young woman, I accept her evidence that she has had the misfortune to have had casual experience with drug users when they are intoxicated. Her evidence is entitled to weight.

186. I have already indicated that the thought patterns expressed in Mr Coats’s speech during the ERISP, four hours after the event, seemed rambling and incoherent. There may be many explanations for this, but one of them, which is surely available is that he was still affected by illicit drugs at that time. Ms Johnson said his pupils were dilated and certainly his appearance on the audio visual recording was consistent with a lingering degree of intoxication. Notwithstanding his disclaimers, I am satisfied that he was intoxicated by some unspecified drug mixed with cannabis and alcohol when he delivered the blow to Mr Quirk’s head.

187. Taking all these factors together, the single albeit very vicious blow, the expressions of ill will to Mr Quirk, not really amounting to statements of specific intent, and his level of intoxication at the time, I am not satisfied that the Crown have proved beyond reasonable doubt that when he struck the blow he had the actual specific intent of killing Mr Quirk as opposed to inflicting grievous bodily harm upon him. I think it highly possible that his case fall into that category of an intoxicated person who acted without turning his mind to the achievement of any specific purpose.

188. It follows from this that Mr Coats must be acquitted of charge 2 on the indictment, the attempted murder of Mr Quirk. By his plea of guilty he will be convicted of charge 3 on the indictment of intentionally inflicting grievous bodily harm on Mr Quirk and he will be sentenced for that offence at a later date.

Verdicts

189. My verdicts are:

1. In the matter of the Queen v Heath Parkinson, Heath Parkinson is not guilty of the murder of Christopher Quirk.

2. I direct the recording of an acquittal on that charge on the indictment.

3. In the matter of the Queen v Adam Coats:

1. Adam Coats is not guilty of the attempted murder of Christopher Quirk;

2. By his plea of guilty to Count 3 on the indictment, I convict Adam Coats of an offence under s 33(1)(b) of the Crimes Act 1900 (NSW) of causing grievous bodily harm to Christopher Quirk with intent to cause grievous bodily harm.

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Decision last updated: 25 June 2020