R v PEARCE - [2019] SASC 33

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v PEARCE
Criminal Trial by Judge Alone
[2019] SASC 33
Judgment of The Honourable Justice Doyle
12 March 2019
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - OTHER MATTERS
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - MENS REA
Trial by Judge alone. The accused was charged with attempted murder, and in the alternative aggravated endangering life.
On the morning of 18 January 2018, the complainant was walking in a northerly direction along the footpath adjacent to Salisbury Highway. Without warning, he was approached and attacked from behind by the accused. In particular, the accused placed a shoelace over the complainant’s head, around his neck and pulled it backwards towards himself dragging the complainant to the ground on top of him.
The complainant lost consciousness, and was left with visible injuries to his neck from the shoelace. After a period of about a minute or two, and after some passers-by intervened, the accused ceased strangling the complainant. He got to his feet, and made his way on foot to a nearby premises where he had been staying.
The accused was arrested a short while after the incident. He appeared exhausted and was behaving strangely in some respects. It was later established that he was suffering from dehydration and had a ‘recreational’ level of methylamphetamine in his blood.
The accused pleaded guilty to the alternative charge, but this was not accepted by the prosecution in satisfaction of the charge of attempted murder. The only issue at trial was that of the specific intention required by attempted murder. In particular, whether the prosecution established beyond reasonable doubt that at the time of the attack, the accused intended to kill the victim.
Held (per Doyle J):
1. The prosecution has proved beyond reasonable doubt that when the accused strangled the victim with the shoelace, he intended to kill the complainant.
2. The accused is guilty of attempted murder.
Criminal Law Consolidation Act 1935 (SA) ss 11, 29(1), 268, 270A, referred to.
R v Holder [2018] SASC 169; R v Zampogna (2003) 85 SASR 56; R v Shah [2018] SASCFC 90; The Queen v O’Conner (1980) 146 CLR 64; R v Tucker (1984) 36 SASR 135; R v Shinner (1993) 173 LSJS 384; R v Wingfield (1994) 176 LSJS 14; R v Gardiner [2013] SASCFC 53; R v Childs (2007) 98 SASR 111; R v Ford [2016] SASC 112, considered.

R v PEARCE
[2019] SASC 33
Criminal.

DOYLE J:             The accused is charged with attempted murder,[1] and in the alternative aggravated endangering life.[2]
[1]    Criminal Law Consolidation Act 1935 (SA), ss 11 and 270A.
[2]    Criminal Law Consolidation Act, s 29(1).
It is alleged that on 18 January 2018 the accused placed a shoelace around the neck of the complainant, Mr Moradi. In respect of the primary charge, it is alleged that in so doing, the accused attempted to murder Mr Moradi. The particulars of the alternative charge are that the accused did so without lawful excuse, knowing that act was likely to endanger Mr Moradi’s life, and either intending to endanger his life or being recklessly indifferent as to whether it was endangered. This alternative offence is said to be aggravated because the shoelace used by the accused to commit the offence falls within the statutory definition of an offensive weapon.[3]
[3] Criminal Law Consolidation Act, s 5.
Both charges arise out of an incident that occurred at about 10.40 am on 18 January 2018, while Mr Moradi was walking in a northerly direction along the eastern footpath adjacent to Salisbury Highway. Without warning, he was approached and attacked from behind by the accused. In particular, the accused placed a shoelace over the victim’s head, around his neck and pulled it back towards himself. The force applied by the accused through the shoelace was sufficient to drag the victim to the ground on top of him.
The accused continued pulling the shoelace tight around Mr Moradi’s neck. Mr Moradi struggled, but was having difficulty breathing and was not able to remove the ligature from his neck or otherwise break free. After a period of about a minute or two, and after some passers-by had stopped to assist Mr Moradi, the accused ceased strangling him. The accused got to his feet, and made his way on foot to a nearby premises where he had been staying.
Mr Moradi survived, but gave evidence that he lost consciousness during the attack. He was left with visible injuries to his neck from the shoelace, including what appear to have been marks from his attempts to use his fingers to remove it from his neck. But he seems ultimately to have made a full recovery from his injuries.
The accused was arrested a short while after the incident. He appeared exhausted and was behaving strangely in some respects. It was later established that he was suffering from dehydration and had a ‘recreational’ level of methylamphetamine in his blood.
There is no evidence that the accused knew the victim, or indeed that the two men had ever met.
The accused pleaded guilty to the alternative charge, but not guilty to the charge of attempted murder. As the prosecution has not accepted the plea of guilty to the alternative charge in satisfaction of the charge of attempted murder, the accused stood trial on both charges.[4]
[4] R v Holder [2018] SASC 169 at [4]; R v Zampogna (2003) 85 SASR 56 at [15].
The accused elected to proceed by way of trial by judge alone.
Consistently with the admissions inherent in his plea of guilty to the alternative charge, the accused does not deny that he carried out the attack upon Mr Moradi, or that his actions were voluntary. The only issue at trial was that of the specific intention required by attempted murder. In particular, the issue was whether the prosecution established beyond reasonable doubt that at the time he attacked the victim, the accused intended to kill Mr Moradi.
Relying upon the evidence that the accused was dehydrated and affected by methylamphetamine, and the absence of any apparent explanation or motive for the accused’s attack upon the victim, the accused’s case was that the prosecution has not established beyond reasonable doubt that he intended to kill the victim.
THE EVIDENCE
Against this background, it is convenient to commence by summarising the evidence at trial before considering the findings that it is appropriate for me to make.
I observe at the outset that I am satisfied that each of the witnesses who gave evidence at trial were honest and generally reliable in the evidence they gave. To the extent that there was some dispute about particular aspects of their evidence, I address these matters as they arise later in my reasons.
The setting
The maps in evidence show that the Salisbury Highway runs in an approximately north/south direction.[5]
[5] Strictly speaking the road runs more north-east/south-west, but as nothing turns on it, and the witnesses generally gave their evidence in terms of north/south, that is the terminology I will use.
Mr Moradi was attacked as he was walking in a northerly direction along the eastern footpath. The incident occurred out the front of the residence at 164 Salisbury Highway, in a heavily built up residential area. It occurred to the north of the intersection with Spains Road; just north of Middleton Street (which runs to the west off Salisbury Highway) and just south of Evan Street (which runs to the east off Salisbury Highway).
At the location of the attack, Salisbury Highway is a four lane highway, with two lanes heading in each direction.
The attack occurred at approximately 10.40 am on Thursday, 18 January 2018. It was a clear and hot day. While there is no evidence as to the precise temperature at the time of the attack, it was agreed that the maximum temperature that day was 41.2 degrees (in the Adelaide CBD) or 42.4 degrees (at Parafield Airport). The maximum the previous day had been 38.7 degrees (in the Adelaide CBD) or 39.6 degrees (at Parafield Airport).
The victim’s evidence
The victim, Mr Abdolhadi Moradi, was born in Afghanistan in April 1990. His family moved to Iran when he was a child, and he and his siblings moved to Australia in November 2016.
Mr Moradi gave his evidence in Farsi, with the assistance of an interpreter. While he is studying English, and understands some English, he has a limited ability to speak English. His evidence was that he is 180 cm in height, and as at January 2018 weighed approximately 93 kilograms and was reasonably fit. He was 27 years of age and living in Salisbury Downs with one of his sisters.
On the morning of 18 January 2018, Mr Moradi had arranged to meet his sister at Centrelink to sign a form. He missed the bus he was planning to catch and so decided to walk. It was not far, and it was a route with which he was familiar.
It was a sunny day, and he chose to walk on the right (or eastern) side of Salisbury Highway as he headed north because it was shaded. When he reached the intersection with Spains Road, he waited for the lights to change before crossing and continuing north along Salisbury Highway. He was walking briskly, and had indeed broke into a run for about 20 to 25 metres after crossing Spains Road because his sister had phoned him on his mobile phone and told him to hurry up.
Mr Moradi had then resumed walking briskly for a minute or two when suddenly somebody from behind put a cord around his neck. He had not previously seen or heard anyone around him, or approaching him. He tried to turn his head to see what was happening, but was not able to see the face of his assailant. The cord was very tight around his neck. He tried to get his fingers underneath the cord, but it had already cut into his flesh and he was not able to do so.
Mr Moradi initially remained standing, although he was not sure for how long. The man behind him was applying more pressure, using the cord to pull his neck back with a jerking motion. His body went back and he collapsed to the ground. He kept trying with his left hand to get his fingers under the cord. With his right hand he was trying to reach back and grab the person behind him, but he could not recall ever making contact with the person.
Mr Moradi described gasping for breath and being unable to breathe from as soon as the cord was around his neck, and as he collapsed to the ground. He continued to struggle hard. He did not recall the cord at any stage being loosened, and indeed he thought the tightness increased when he was pulled to the ground. The man was holding Mr Moradi’s body with his knees so that he could not move. After a while his arms and legs went limp and he lost consciousness.
When asked the length of time that he struggled while the cord was around his neck, Mr Moradi said that as far as he could say it was maybe a couple of minutes. When asked in cross-examination whether it might have been more like 30 to 40 seconds, he said that to him it felt longer. But he said that he was very confused when he collapsed and lost consciousness.
When Mr Moradi regained consciousness he was dazed; for a few moments he was not able to see clearly and thought he was in a nightmare. He felt like he was waking up from a deep sleep, but then started to remember what had happened. The cord was no longer around his neck, but he was still lying flat on the ground. There were a few people around him, and speaking to him.
Mr Moradi became aware of grazing to his elbow and right ankle. His neck was red and bruised. He did not have any of these injuries prior to the attack.
Mr Moradi said that to the best of his knowledge he had never met or had any contact with the accused prior to the attack. He did not think he had ever seen him before.
Mr Moradi was cross-examined as to whether in fact he had lost consciousness. His attention was directed to Dr Nadia’s evidence (see later in these reasons) in relation to her examination of Mr Moradi at the Lyell McEwin Hospital at about 1.10 pm on 18 January 2018. That evidence was to the effect that Mr Moradi told Dr Nadia that he was not sure whether he had lost consciousness; and that he had called out for help from bystanders. Mr Moradi said he was not able to recall whether he said either of these things to Dr Nadia, but that he had recalled the incident better after a couple of days. He was now 100 per cent sure that he had lost consciousness. He also said that he did not call out to anyone for help. I note Mr Moradi’s evidence was that when he spoke to “the doctor” and the police, he did so using an interpreter who was on the end of a telephone.
The lay witnesses
Various passers-by observed aspects of the accused’s attack upon Mr Moradi. A summary of their evidence follows.
Mr Wallace
At about 10.40 am on 18 January 2018, Mr Wallace was driving a bus in a southerly direction along Salisbury Highway. He had slowed down as a result of some roadworks in the area when he noticed about 100 metres ahead of him a man walking towards him. The man was on the eastern footpath of Salisbury Highway, and another man was running up behind him. He referred to these men as the first and second men respectively in his evidence.
Mr Wallace said he had a reasonably clear view through the large front window of the bus he was driving. The first man was tallish with dark skin and wearing casual clothes. The second was shorter with sandy blonde hair. The first man was moving at a walking pace. The second man was about 50 metres behind the first man when Mr Wallace first saw him, but was running up behind the first man at a reasonable pace. As the second man came up behind the first man, Mr Wallace noticed that he had a white, or light-coloured, cord or string in his hand. He was holding it with both hands, out in front of his face. His hands were about half a metre apart. He saw the second man raise his hands and put the cord over the first man’s head in quite a fast motion. In basically one motion, the second man pulled the first man to the ground. Both of them went to the ground.
By this point, Mr Wallace was slowing his bus and ultimately brought it to a stop near where the two men were continuing to struggle on the ground. He could see them to his left through the glass door of the bus. His immediate response was to start sounding the bus horn in an attempt to disrupt what was occurring on the footpath near him. He recalled holding the horn down for a few seconds, or a bit longer, while he was assessing the situation. He said the second man looked over for a second when he sounded the horn, but then returned to what he was doing.
The first man was lying on his back, with the second man directly underneath him and pulling the cord tight around his neck. He said the first man was trying to stop what was happening, but had his hands to his side.
Mr Wallace realised that the men were continuing to struggle, so he got out to offer some assistance. As he was stepping out of the bus he decided to return to the bus to get a broom that he had in the overhead compartment near the front of the bus to protect himself.
After getting out of the bus with the broom he saw a third man trying to separate the first two. He had not seen this man prior to this, and did not know where he had come from. He was not able to give any physical description of this third man.
As the situation appeared to be serious, Mr Wallace telephoned emergency services. It was an agreed fact that this call occurred at 10.43 am. He was at the front of his bus at this point, and a lady from the adjacent house gave him the address of 164 Salisbury Highway.
Mr Wallace was not able to recall how exactly the struggle ended. But while he was on the phone he saw the second man walk away in a southerly direction and then cross over Salisbury Highway.
When asked the length of time between the second man putting the cord around the neck of the first man to the point he saw the second man crossing Salisbury Highway, Mr Wallace said “at a guess possibly a minute and a half to two minutes, in a thereabout time frame”. In cross-examination he acknowledged that it was possible the struggle lasted for about 30 to 40 seconds.
Mrs Wood
Mrs Wood is a police officer, but was not on duty on the morning of 18 January 2018. Rather, she was travelling north along Salisbury Highway in a car being driven by her husband, Mr Wood. They had their two children in the back seat.
Mrs Wood was familiar with the area, and recalled that just after they passed through the intersection with Spains Road, she saw a man walking in a north-easterly direction on the footpath on the other side of the road. She saw a second man, who she described as walking at a quick pace and looking like he was trying to catch up with the first man. He was only a few metres behind the first man when she noticed them both.
Mrs Wood described the first man as quite tall, maybe 185 to 190 cm in height, and with an athletic build. He had a Middle Eastern appearance and dark hair. She recalled the second man being slightly shorter, about 180 cm in height, but also with an athletic build. He was Caucasian in appearance.
When she first noticed the men, they were slightly ahead of her on the opposite side of the road. She saw the second man hold out his hands in front of his face, about 30 cm apart, apparently holding a thin piece of rope or string. He raised his hands up and pulled the rope or string over the first man’s head and then around his neck, pulling the first man to the ground on top of him.
At this point she spoke to her husband, who then did a U-turn a bit further up the road. He did the U-turn at Murray Street,[6] before driving back south towards the incident and pulling over just to the north of the intersection between Salisbury Highway and Evan Avenue. She tried to keep an eye on the men while her husband turned the car around, but the distance meant that she could not keep track of them.
[6] Murray Street is one block to the north of Evan Avenue.
Once the car stopped, she could see the two men on the ground. She could not say who was on top; it looked as though they were wrestling on the ground.
As soon as her husband had parked the car she rang triple zero. It was an agreed fact that this call occurred at 10:42.02 am. While making this call, Mrs Wood continued to watch, although not for the entire time. She saw the men continue to struggle as her husband approached, but by the time he reached them the second man was no longer on the ground. Mrs Wood did not see the point at which the second man had separated from the first man. She saw that the second man had started walking away, in either a brisk walk or slow jog, and in a north-westerly direction. She lost sight of him as he crossed over Salisbury Highway.
Mrs Wood said that as she watched her husband approach the two men, she noticed there was a bus parked alongside them, and another man (with a black shirt) was standing next to them and poking them with a broomstick. At some point she also noticed a further man running from the area across Salisbury Highway. This man was wearing a white shirt, but she was not sure if he had had any involvement.
Mrs Woods’ estimated the time from when she saw the second man place the item around the first man’s neck to the moment when their car stopped near Evan Avenue to be “roughly a minute”. She estimated that they continued struggling for about another 15 to 20 seconds after their car had stopped. When her estimate of one minute for the first time period of time was challenged in cross-examination, she said that “at the time I thought it was about a minute so unless I actually did it all again, I couldn’t tell you if it was less or more.”
Mr Wood

Mr Wood is the husband of Mrs Wood. He was driving their car north along Salisbury Highway when his wife drew his attention to an incident involving two men on the footpath on the other side of the road. This led to him doing a U-turn and then parking near Evan Avenue, just to the north of where the two men were. Mr Wood estimated that it was about 45 seconds between when his wife pointed out the men and when he parked the car.
When his attention was first drawn to the incident, all he saw was some bodies. He could not see what they were doing. Once he had turned and parked the car, and had got out of it, he could see more. He could not see the top half of the men’s bodies because there was another vehicle in the way. But he saw “some legs shaking pretty vigorously on the ground”. At that point he was 30 to 40 metres from the men.
As he approached the men, he was able to see more again. After moving about five or six metres closer, he had a clear view. He could see the victim (the first man) on the ground on his back with the second man underneath him. The second man was medium to tall in height, with a solid build and blonde hair. The first man was probably sightly taller and fitter. When asked the first man’s ethnicity, Mr Wood said that he could see “he wasn’t Australian”.
The second man was holding a white shoelace that was wrapped around the first man’s neck. He was holding the shoelace clenched in his knuckles, with his hands turned in towards him as though to get a better grip or better leverage. He was pulling very tightly on the shoelace, resulting in the first man having his back arched and up off the ground. The second man had his legs positioned either side of the first man.
The first man appeared to be trying to get free in that he was moving vigorously; at least “his legs were, he didn’t have a lot of movement left in his upper body”. His arms and hands were by his side.
As Mr Wood continued to approach, he saw three other people. He saw one man with a stick or broom trying to poke the man with the shoelace to get him to stop. There was a lady in the doorway of the adjacent house. And there was another man alongside the struggle, telling the man with the shoelace to let go. This man was short with a scrawny or skinny build, a hat and sunglasses.
By the time Mr Wood got to within about five or six metres, the man with the shoelace let go of the victim. It had taken Mr Wood 15 seconds to get from his car to this point. He saw the man with the shoelace stand up slowly. He appeared exhausted; his face was bright red and he was quite sweaty. Initially he just stood up and took a couple of steps back. But then he slowly started to move away. He crossed the road and headed west down Middleton Street. He did so slowly and still appeared exhausted.
Mr Wood started following the man as he walked down Middleton Street. He saw the man head to the end of Middleton Street. As Mr Wood followed he saw an unmarked police car with two uniformed police officers in it. After he spoke to them, they turned their car around and followed the man. They drove to the end of Middleton Street and turned left. By the time Mr Wood reached the end of Middleton Street and looked left down Eliza Street, he saw that the police were with the man.
Ms Woolger
Ms Woolger was at home during the late morning of 18 January 2018. She heard a horn being sounded several times nearby and so went out the front of her house to see what was going on.
Once outside, she saw a bus parked out the front of her house, on the eastern side of Salisbury Highway. The driver was pointing towards the footpath in front of her fence. He appeared to be signalling her to make a phone call, but she did not have a phone with her. As the fence was a four or five foot tall brick wall, she could not initially see what the man was pointing to. But as she stepped off her porch, she could hear a man saying “get off him, leave him alone”.
Ms Woolger looked over her fence and saw three men on the ground. The first man was on the ground facing upwards. The second man was over the top of the first and appeared to have his hands near the first man’s neck. The third man was trying to pull the second man off the first man; he was grabbing at his body and clothing. It seemed to her like the second man was assaulting the first man, and that the third man was trying to break it up. But she did not have her glasses on, and could not see very clearly.
After about 30 seconds to a minute, the second man either let go or lost his grip and the third man managed to pull him off. The third man yelled “run mate, run dude”. The second man got up and fixed his top before casually walking west across Salisbury Highway. He looked out of breath and exhausted. As he reached the other side of the highway, he started walking faster south towards Middleton Street. Ms Woolger’s recollection was that the third man stayed with the first man, and looked to be trying to help him up.
Ms Woolger described the first man as “having dark skin and looked foreign”; but she did not get a good look at him, and did not have her glasses on. She described the second man as Caucasian, with a solid build and light-coloured short hair. She said the third man was also Caucasian, but was short, with a thin build and blonde hair. He was a lot smaller than the second man and looked exhausted trying to get him off.
Ms Paddick
Ms Paddick was driving south along Salisbury Highway at about 10.40 am on 18 January 2018. As she was approaching the intersection with Spains Road, she saw a man walking towards her on the eastern footpath. A second man ran up behind the first man. He was carrying a white coloured rope or cord between his hands, with about 30 to 40 cm between his hands. She saw the second man reach over the first man’s head and pull back hard on the cord pulling the first man to the ground. The second man was on his back behind the first man, with the first man facing out towards the road. She saw the first man grabbing at his throat with his right hand, and slapping the ground with his left hand. He looked like he was terrified and trying to get attention.
The second man’s face looked bright red, with bulging veins. His face looked “scrunched together like he was exerting a lot of force”. She got her phone out and rang triple zero. By the time she spoke with police she was already passed the men. She could see behind her that vehicles including a bus had stopped. She was not in a position to stop as she had passengers in her car.
Mr Sloan
Mr Sloan was also travelling south along Salisbury Highway during the late morning. There was quite a bit of traffic as he approached the intersection with Spains Road.
He saw a man walking north along the eastern footpath. He then saw a second man running up behind the first man. As the scond man caught up to the first man, he put something around the first man’s neck and began to strangle him. It appeared he was pulling hard as he pulled the first man to the ground, continuing to hold onto what he had placed around his neck. There was no one else with the two men at this point.
Mr Sloan drove around the block, and by the time he returned to where he had seen the first man being strangled, there was a bus driver and other members of the public present. He saw a shoelace on the ground; it was white in colour.
He described the first man as being of Afghani appearance, about five foot 10 inches tall, and of a medium build or solid appearance. He described the second man as scraggly and thin in appearance.
Mr Steele-Perry
It was an agreed fact that during the course of the investigation, Mr Steele-Perry was identified as being present at the time of the incident and having intervened. (I infer that he was the ‘third man’ referred to by several witnesses above.) It was agreed that on 21 April 2018, one of the investigating officers spoke with Mr Steele-Perry. He declined to provide a declaration to the police, and was not called as a witness.
The police witnesses
Officers Bennett and Gowling
Both Senior Constable Bennett and Constable Gowling gave evidence that they were on mobile uniform patrol on the morning of 18 January 2018 when they received a radio tasking to attend an altercation at 164 Salisbury Highway.
When they attended the scene, they identified themselves and spoke to the victim. They located a shoelace on the footpath of the eastern side of Salisbury Highway, about 10 to 15 metres from the victim, and towards the intersection with Spains Road. They subsequently provided the shoelace to a forensic crime examiner, and it became exhibit P8 at the trial.
Both Officers Bennett and Gowling also attended Modbury Hospital later the same morning and took a statement from the victim, Mr Moradi. They did so through an interpreter who was on a mobile telephone.
Officer Green
Senior Constable Green was on uniform mobile patrol with Officer Guitink on the morning of 18 January 2018. They were in an unmarked police vehicle parked on the north side of Middleton Street, facing approximately east towards Salisbury Highway. They were making observations for an unrelated investigation.
Officer Green noticed a man (the accused) walking with haste along Middleton Street towards Eliza Street. He described the man as not moving in a “full-blown run”, but rather trying to hurry, and moving a lot more quickly than a normal walk. As he continued along Middleton Street, the man was quickening his pace, and kept looking back behind him as though trying to see if someone was following him. He saw the man look back several times; at least two or three times. The man appeared out of breath, as if he had been involved in some physical exertion.
Another man (Mr Wood) then appeared on Middleton Street and came and spoke to Officers Green and Guitink. As a result of this, they turned their police vehicle around and followed the man they had initially seen. Once they reached the end of Middleton Street they could see him to the left (approximately south) about 60 metres away and out the front of 63 Eliza Street. There was a tall colorbond style fence at the front of the property. There was also a white four wheel drive utility parked on the verge out the front of that property.
As they approached him on Eliza Street, the man was standing up against the fence, facing the fence. He had his hands on top of the fence and appeared to be in the motion of an attempt to jump over the fence. His legs were compressed as though readying to launch himself up over the fence.
Officer Green got out of his vehicle and approached the man. As he did so, the man moved away from the fence and was leaning up against the side of the utility. He appeared to be rummaging through some clothing in the cage on the rear tray of the utility. There was also a container of liquid and a soft drink bottle in the cage. The man looked physically exhausted and out of breath.
Officer Green then left the man and Officer Guitink for a short period (no more than two minutes) while he went and spoke to the other man they had seen on Middleton Street, who had by then arrived on Eliza Street.
When Officer Green returned to the man out the front of 63 Eliza Street, steps were taken to identify the man through a medicare card that had been located by Officer Guitink. These checks confirmed the man was the accused.
Officer Green said that the accused did not ever speak to him. He did not say anything when asked for his personal details, and indeed Officer Green said that he did not ever hear the accused say anything. Shortly after this, Officers Grapentin and Leedham arrived and took over custody of the accused.
Officer Guitink
Constable Guitink was with Officer Green on 18 January 2018 when he saw a man pass them on Middleton Street. He described the man as moving at a slow jog. He saw him look over his shoulders twice as though looking to see if he was being followed. He was sweating heavily and out of breath.
After speaking to a second man who appeared on Middleton Street, and then driving to where they located the first man at 63 Eliza Street, Officer Guitink got out of the police vehicle.
There was a corrugated iron fence at the front of the property, which Officer Guitink thought was higher than his height of six foot two or three inches. He saw the man attempting to jump the fence. He was doing so at a point of the fence where there was a dirt mound against the front of it. When standing on the mound, the fence was about the height of the man’s chin, and he had his hands on top of the fence trying to put pressure through his upper body so as to push himself up and over the fence. He did not have any success in this attempt.
Officer Guitink approached the man. As he did so, he directed the man to come back towards the vehicle out the front of 63 Eliza Street. The man complied. The man appeared extremely out of breath. He was breathing heavily, or hyperventilating and almost unable to control his breathing. He was sweating profusely. It took him a few minutes to control his breathing. The man had a cut to his right index finger and some lacerations on his arm.
Officer Guitink asked the man to provide his personal details, but he did not comply. He did, however, ask Officer Guitink for a drink of water, and indicated to the backpack that was located in the corner of the rear tray of the utility parked outside 63 Eliza Street. There was also a white container and soft drink bottle in the rear tray. Officer Guitink did not give him any water. He said that he declined to do so because at that time they had not established who the man was; and he was not speaking to them other than asking for water. He was also not sure what was in the bottles in the rear of the utility.
Other than this, the man did not speak. But nor did he show any sign of hostility or aggression. Officer Guitink located a medicare card in the backpack in the rear tray of the utility, which he and Officer Green used to confirm that the man was the accused.
Soon after this, Officers Leedham and Grapentin arrived with a video camera. They dealt with the arrest of the accused, and Officers Green and Guitink left to resume their other duties.
Officer Leedham
On the morning of 18 January 2018, Constable Leedham was on uniform mobile patrol with Constable Grapentin. As a result of a radio tasking, they attended 63 Eliza Street where they found the accused together with Officers Green and Guitink. They were standing under a tree near a white utility out the front of that property.
Officer Leedham said that the accused was just standing there. He was sweating profusely and extremely out of breath. He has some minor cuts and abrasions. Officer Leedham understood from the other police officers that the accused’s identity had been ascertained. He spoke to the accused in an attempt to have him confirm his name and date of birth, but the accused did not speak to him. Shortly thereafter, at 11.04 am, Officer Leedham activated a video camera before then placing the accused in handcuffs. I refer to this video later in these reasons as ‘the Arrest Video’.
Officer Leedham then took the accused to the Elizabeth cells. He said that the accused did not show any hostility or aggression during the period when he was being transported from Eliza Street to the Elizabeth cells. The video camera was reactivated at 12.39 pm (‘the Elizabeth Cells Video’), once they were at Elizabeth cells.
The accused was then transported to the Lyell McEwin Hospital, where the video camera was reactivated at 12.56 pm (‘the Hospital Video’). Again, Officer Leedham said that the accused did not show any hostility or aggression during the period that he was being transported to the hospital.
At the conclusion of the video recording at the hospital, Officer Leedham in effect handed the accused into the care of the medical staff for the purpose of a medical assessment. Despite the deactivation of the video camera at that point in time, Officer Leedham continued making observations of the accused while he was being treated by medical staff. He did so until about 5.40 pm, when he was relieved by Officers Gaulke and Humphreys. During that period, the accused remained compliant and did not show any violence or hostility towards Officer Leedham or to any of the hospital staff.
Officer Grapentin
Constable Grapentin attended 63 Eliza Street with Officer Leedham. He described the accused as out of breath and sweating, with fresh looking cuts and scratches on both hands and elbows. He refused to answer any questions directed to him by the police.
Officer Grapentin also described accompanying Officer Leedham as they took the accused to the Elizabeth cells and then the Lyell McEwin Hospital. He remained at the hospital until relieved by Officers Gaulke and Humphreys at about 5.40 pm.
Officer Sweetman
Senior Constable Sweetman was performing uniform patrol duties as the patrol supervisor in the Salisbury district during the morning of 18 January 2018. He arrived at 63 Eliza Street after Officers Leedham and Grapentin.
He saw a man (the accused) by the side of the utility outside the front of 63 Eliza Street. He said that he was standing upright and still, but appeared to be physically exhausted, breathing strongly and perspiring heavily. He was staring immediately to his front as if transfixed by some object.
Officer Sweetman said he attempted to check on the accused’s welfare and assess his condition by asking him how he was, and trying to confirm his name. The accused did not make any motion or eye movement in response to these queries. Officer Sweetman said that during the entirety of his attendance, the accused was non-communicative.
Officer Sweetman noticed some small injuries on the accused, namely a cut along the topside of a finger which appeared to be a fairly deep laceration, but which was not bleeding actively. He also had grazes to his elbow. He was wearing running shoes, one of which was unlaced. On the rear tray of the utility vehicle there were numerous clothes and bedding items indicative of a transient lifestyle.
Officer Sweetman said that no conversation was entered into with the accused. He arranged for a video recorder to be activated. He then placed the accused under arrest and informed him of his arrest rights.
Officer Pursche
Detective Brevet Sergeant Pursche attended 63 Eliza Street at about 4.15 pm on 18 January 2018. She seized two blue shoes, being ASICS brand sneakers. One of the shoes was missing a shoelace.
Officer Pursche also attended the Lyell McEwin Hospital at about 8.00 pm that evening. She understood that, by that time, the accused had been cleared mentally in the sense that there had been a mental health assessment. But they needed a urine sample before he could be cleared for custody. She activated a video camera at 8.30 pm for the purpose of having a conversation with the accused and obtaining his personal details. The recording was deactivated at 8.37 pm (the ‘Pre-Forensic Procedure Video’).
Various steps were taken thereafter to facilitate authorisation of a forensic procedure. The video was then reactivated at 10.23 pm for the purpose of recording the forensic procedure (the ‘Forensic Procedure Video’).
Officer Pursche was also present when attempts were made to take blood from the accused. There was difficulty in obtaining a blood sample; however, they were able to obtain blood from the samples taken upon admission. A urine sample was also obtained.
Officer Tasker
Brevet Sergeant Tasker attended with Officer Pursche at the Lyell McEwin Hospital at about 8.00 pm on 18 January 2018, and took over custody of the accused from the uniformed police officers present at that time. He remained present while Officer Pursche made a telephone application to undertake a forensic procedure, and then while that procedure was undertaken.

At about 10.52 pm, he activated a video camera to record the taking of blood from the accused by the police nurse, Ms Sanderson, and a collection of a urine sample. But no blood was able to be taken from the accused, and the camera was switched off at 11.15 pm. I refer to this later as ‘the Blood Sample Video’. The accused was returned to the custody of uniformed police officers.
Ms Sanderson
Ms Sanderson is a qualified Registered Nurse employed by SAPOL. She has been conducting intrusive forensic procedures since 2012. She commenced the procedure with the accused at 10.58 pm on 18 January 2018. She made three unsuccessful attempts at venepuncture at three different sites. A urine sample was obtained at about 11.13 pm.
The police videos
I have mentioned several video recordings made of the accused by the police. I have had regard to each of these videos. In so doing, I have been mindful that their only relevance was to observe the accused’s presentation at the various times, to the extent it was probative of the nature and extent of his intoxication and dehydration and their effects upon him. I have, of course, been astute to draw no adverse inference from the accused’s declining to answer or respond to questions asked of him by the police.
While I have had regard to the videos in their entirety for the above purpose, the observations I made include the following.
The Arrest Video. This video lasted from 11.04 am to 11.08 am. The accused can be seen near the utility at the front of 63 Eliza Street. He was standing with his head against the side of the utility, perspiring and breathing deeply. At one point, he sat down on his haunches briefly, appearing exhausted, before then standing up again. He did not respond when asked his name or when informed of his arrest rights by Officer Leedham. In particular, he did not respond when asked whether he understood the various things he was being told.
When asked by Officer Leedham to follow him out onto the road towards the police van, the accused promptly followed the directions he was given. He appeared relatively steady on his feet. The accused then obeyed the direction to get into the rear of the police van. He spun himself around in a fairly complicated but clumsy manoeuvre, apparently intended to get himself into a more comfortable position.
The Elizabeth Cells Video. This video lasted from 12.39 pm to 12.43 pm. The accused was again non-responsive when informed by Officer Leedham that he had been arrested, was soon to be taken to the hospital and was going to be questioned. He did not indicate whether he understood what he was being told.
The accused appeared exhausted, spending some of the time sitting on his haunches. But he was compliant when asked to hold out his hands for cuffing and stand up near a wall. At times he appeared steady on his feet, but at other times he leant into the wall, and buried his face into the corner. He complied with an instruction by Officer Grapentin to follow him out to a police car, but was very unsteady on his feet and at one point banged his head into a wall. Once in the police vehicle he let out a loud growl as he swivelled his body around so he could lie on his side.
The Hospital Video. This video lasted from 12.56 pm to 1.21 pm. During most of this time the accused was outside the hospital waiting to be admitted. He was initially seen sitting at the rear of the police van. While he at times appeared a bit dazed and confused, he was more steady than previously when he got to his feet. He seemed to be paying more attention to his surroundings. He complied while his cuffed hands were bagged. He began to communicate in a basic way, including asking “what are we doing here?” and “I’m not hurt am I?” He responded to some of the directions and questions by the police officer. He made a couple of attempts to remove or bite the bags on his hands, the second time after he had been told not to do so. He spent some time with his eyes closed, and could also be seen licking his lips.
As the video continued, the accused spent some time on his haunches. He appeared at other times steady on his feet, and to become more composed and alert. He expressed concern that his pants were falling down and needed pulling up. He asked whether he could go inside the hospital to sit down. At one point he bent down to pick something up off the ground in his cuffed and bagged hands. He was told not to and said sorry. He spent some time sitting on a ledge. When it was time for him to enter the hospital he was immediately responsive and walked steadily in the direction indicated. He took a seat on the hospital bed he was shown to, and used a paper towel to wipe his brow. He interacted in a basic way with the nurse attending to him.
The Pre-Forensic Procedure Video. This video lasted from 8.30 pm to 8.37 pm. Throughout the video, the accused was lying in his hospital bed. He engaged in basic conversation with Officer Pursche, raising his head at times when communicating.
The accused answered some basic questions including confirming that he lived in Queensland, but had been staying recently at 63 Eliza Street. He confirmed that he knew that he was under arrest, but said he did not remember being given his arrest rights. When Officer Pursche commenced giving him his rights (again), he quite abruptly closed his eyes and became non-responsive. When Officer Pursche eventually said “alright, you’re going to pretend you’re asleep”, he promptly became alert again, saying “no I’m not”. Officer Pursche then continued informing him of his arrest rights, and explaining them when the accused asked for them to be repeated or otherwise indicated that he did not understand.
Officer Pursche explained the forensic procedure application that was to follow. The accused continued to respond and communicate, albeit still in a fairly basic way.
The Forensic Procedure Video. This video lasted from 10.23 pm to 10.25 pm. The video commenced with the accused lying in his hospital bed. He appeared close to asleep. However, when asked by Officer Pursche, the accused confirmed that the forensic procedure had just taken place. He declined to answer any questions about what had happened earlier in the day. While generally responding to Officer Pursche, he closed his eyes at times and was slow in responding at other times.
The Blood Sample Video. This video lasted from 10.52 pm to 11.10 pm. During the period of this video, the police nurse (Officer Sanderson) made various attempts to obtain a blood sample from the accused. While he commenced lying down and appearing half asleep, he became cooperative with the nurse in assisting her (ultimately unsuccessful) attempts to take blood from him. The lack of success, however, was not a result of any want of cooperation on the part of the accused. The accused also cooperated in providing a urine sample.
The shoelace
The police seized a pair of shoes from 63 Eliza Street on 18 January 2018. The left shoe had a shoelace in it, but the right shoe did not. There was no dispute at trial that the shoelace found at the scene of the attack was a pair with the one found in the left shoe at Eliza Street,[7] and hence came from the right shoe of that pair. I would make a finding to that effect in any event, given the agreed facts in relation to the shoes and shoelaces.
[7] There was evidence from Officer Castle as to the seizure of these shoes from 63 Eliza Street during the afternoon of 18 January 2018.
There was also no dispute at trial that the shoelace in evidence was the ligature used by the accused in his attack upon the victim. The evidence as to the location where it was found, and the DNA evidence linking it to the accused, would have been sufficient to establish this in any event.
Medical evidence in relation to the victim’s injuries
Dr Nadia
Dr Nadia is a qualified medical practitioner, employed as a senior resident medical officer in the emergency department of Modbury Hospital.
Dr Nadia first saw the victim, Mr Moradi, in the emergency department of Modbury Hospital at 1.10 pm on 18 January 2018. She took a history, performed a clinical examination, and then directed observations of him for four hours.
According to Dr Nadia, Mr Moradi was alert and sitting upright in bed at the time of her consultation with him. She described him as having “reasonable English for the purposes of history taking and examination”. She did not make any reference to the use of an interpreter.[8] Dr Nadia’s evidence was that Mr Moradi described the incident in terms that he “was walking down the street when attacked from behind with someone strangulating his neck and he did not see the attacker’s face. He was lowered to the ground but was not sure whether he lost consciousness. He remembered calling out for help from the bystanders however the assailant had gone.”[9]
[8] Dr Nadia’s evidence was given by way of an affidavit tendered by consent, without her attending for cross-examination.
[9] The relevance of this evidence was only as probative of a prior inconsistent statement by Mr Moradi, and not any hearsay purpose.
Dr Nadia summarised her clinical examination of Mr Moradi in terms that included the following.
The patient denied any difficulty in breathing or swallowing, or any headache. He complained only of pain in the area of his neck, but said that he otherwise felt okay. The patient was alert and orientated, with a glascow coma score of 15/15, and with vital signs and observations within normal limits.
Dr Nadia observed visible cord-like strangulation marks around the lower part of Mr Moradi’s neck. There were no signs of congestion (such as petechial haemorrhages) on the skin above this level. There was no lip or facial swelling or oedema.
On examination of Mr Moradi’s oral cavity, Dr Nadia found a small haemorrhage on the right side of his tongue, possibly from Mr Moradi biting his tongue. However, there was no tongue swelling, and no other haemorrhage spots on the tongue or in the buccal cavity. Dr Nadia observed some haemorrhage spots in the back of the throat/pharynx. However, Mr Moradi’s uvula was not swollen.
Dr Nadia’s examination of Mr Moradi’s face did not reveal any facial bruising or injuries. There were no eye injuries or bruising, and no conjunctival haemorrhages. Nor did Mr Moradi have any visible scalp or other head injury.
In relation to her examination of Mr Moradi’s neck, Dr Nadia reported visible strangulation marks on the lower part of the neck, but with no midline spinal tenderness and a full range of movement intact at the neck in terms of flexion and extension. The chest and cardiovascular examinations were also normal.
Dr Nadia said Mr Moradi was kept in emergency for observations for a total period of four hours. But there was no immediate treatment required that day. He declined pain relief, and tolerated oral food and fluids during the period of observation. Mr Moradi was then discharged back to the care of his general practitioner, and there was no follow up with the emergency department required post discharge. According to Dr Nadia, Mr Moradi’s prognosis was good, with no expected long-term physical or medical disability from his injury.
Dr Seimon
Dr Seimon is a qualified medical practitioner with over 20 years experience in general practice. He is employed as an emergency consultant in the emergency department of Modbury Hospital, and in that role cares for patients presenting to the emergency department with various conditions including injuries from alleged assaults.
Dr Seimon was asked to express a view as to the force that might have been used to cause Mr Moradi’s injuries. He was asked to do so based merely upon the clinical notes taken by Dr Nadia. But apart from that, he had not had the benefit of examining Mr Moradi himself, and did not otherwise have access to photographs of the accused’s injuries or any of the witness statements provided in this case.
His conclusion was that it would be hard to quantify, but that he did not think it would have involved persistent force for any extended duration. When asked whether the injuries were consistent with the use of a shoelace for a ligature for possibly 30 to 40 seconds, his answer was:
Yes, the clinical notes that Dr Nadia had documented are consistent with a degree of force that would lead to some minor external signs of increased congestion through the head and neck but not to the extent that it led to what people would call soft tissue swelling in the oropharynx which is the throat and the tongue which would then potentially lead to other signs that we would expect to see. At the time that the patient was discussed with me, because I was the consultant on the floor that day, Dr Nadia suggested to me that he was verbalising fine. So basically he was verbalising and speaking normally, he was able to communicate in a manner that didn’t suggest that there was any significant tissue injury.
However, given the limited basis for his opinion, and the fact that he did not have any formal qualification in forensic medicine, Dr Seimon said he would defer to the views of Dr Dayman (who does have a specialised qualification in forensic medicine). Having seen his report shortly before giving evidence, Dr Seimon said that “most of what [Dr Dayman] has commented on in the report would be correct in the fact that he had more access to information, photographs, diagrams and other witness statements, possibly.”
Dr Seimon was also asked to comment upon the significance of an acute kidney injury caused by dehydration. He explained that dehydration does not result in physical damage to the kidney. Rather, acute kidney injury is a reference to biological findings in the blood stream.
He agreed that severe dehydration can cause the brain to shrink. It can cause a person to become confused, and thus have an impact on their mental processes and decision making. It can also affect mood leading to agitation, irritability, decreased conscious state, poor decision making, and listlessness. The irritability might, for example, lead to aggression. But once the person is rehydrated they can recover.
Dr Dayman
Dr Dayman is an experienced medical practitioner with several qualifications. These include a Masters degree in forensic medicine, giving him particular experience and expertise in the identification and interpretation of injuries.
For the purpose of providing an opinion in relation to Mr Moradi’s injuries, he was provided with Dr Nadia’s notes, the Modbury Hospital medical notes, photographs of the injuries, and the affidavits from Mr Moradi, Mr Wallace, Mrs Wood and Mr Wood. He also read Dr Seimon’s statement.
Dr Dayman gave evidence by reference to the photographs of Mr Moradi’s injuries in evidence as well as some body charts he prepared, and on which he numbered Mr Moradi’s injuries 1 to 13.
Injuries 1 and 2 were abrasions on Mr Moradi’s left ankle. The balance of his injuries were to his neck.
Injury 3 was a mark that was a circumferential mark extending around Mr Moradi’s neck. It was an abrasion that was fairly uniform in width, measuring about 2 mm. But at some points it was quite distinct, and was even embedded into the skin surface. In other areas, particularly at the front and towards the back, it became less distinct. On the right side of the neck the line of abrasion appeared to split into two roughly parallel lines at the back of the neck, with an area of bruising between the lines. It was a bit more distinct on the left side and did not branch into parallel lines. Dr Dayman described injury 3 as indicative of strangulation with a ligature in the nature of a thin flexible cord. The markings were consistent with the use of a shoelace. Abrasion injuries occur at the site of trauma and so the existence of the parallel lines was best explained by movement of the ligature at some point in the strangulation.
Injury 12 was a 2 cm by 0.5 cm purple bruise on the rear right section of Mr Moradi’s neck, between the roughly parallel lines that were part of injury 3. It indicated a force from an object or surface that was not sharp. Dr Dayman was not able to say whether this bruise was caused by the ligature being applied near the bruising, or some other blunt object such as a finger.
Injury 10 was a small round bruise (about 0.5 cm) towards the back right of Mr Moradi’s neck. While this indicated a blunt trauma, most likely at the site of the bruise, Dr Dayman again could not say what object or surface was responsible for the trauma.
Injury 6 was a small area of purple bruising (about 1 cm by 1 cm) toward the rear of the left side of Mr Moradi’s neck, just above the ligature mark. It was again the result of some blunt force trauma in the area. It might have been from the ligature. But there were no signs of movement in the ligature at that point, so it might have been the result of a finger or hand. Like the larger area of bruising at the front of the neck (injury 5), it might also have been a result of the local venous pressure.
Turning to injury 5, it was a large area (4 cm by 2 cm) of purple bruising at the front left of Mr Moradi’s neck. The bruise was petechial in nature, but with the petechiae having coalesced and formed a more solid area of bruising as it extended posteriorly. Petechiae are pinpoint areas of haemorrhage within the skin. They result from an abrupt rise in pressure within the veins of the skin, resulting in the veins popping and bleeding into the skin. The rise in venous pressure might occur for a variety of reasons. It might occur if suction is applied to the skin, or as a result of direct trauma to the skin. But in the context of a strangulation episode, the petechiae can also indicate that venous outflow from the neck above the level of the ligature has been occluded, resulting in an increase in the venous pressure and causing those small veins to rupture.
Injury 7 was a 0.5 cm linear abrasion on the left side of the neck. It was in a location where there was a slight inverted apex in the ligature mark. It indicated a combination of pressure and movement by a sharp or irregularly surfaced object being drawn across the skin. In the context of a strangulation episode, trauma from fingernails would be a likely explanation for this injury.
Injury 9 was an area of anterior neck swelling. The swelling was in the area where there were structures below the skin, namely the upper part of the trachea, below the larynx or Adam’s apple. The swelling or inflammation was likely caused by the ligature, given that the ligature mark at the front of the neck was quite low and at about the height of the trachea. Dr Dayman explained that the ligature mark was over the lower area of the neck, almost where the sternocleidomastoid muscles (or strap muscles) inserted into the sternum; and on the left side of the neck at about the location the of trapezius muscle.
There were various potential explanations for the ligature mark being more pronounced on one side of the neck than the other. In the context of a dynamic struggle, the victim may have had more success in holding the ligature away from his neck on one side; some clothing might have intervened between the ligature and skin; or the pressure might have been unevenly applied for some other reason. Also the muscles in the neck might have provided some protection at the front of the neck.
Injury 11 consisted of three areas of pink discolouration at the rear of the neck. The bottom one was an abrasion, and the upper two might have been abrasion or bruising. They seemed to fan out from the bruising in injury 10, and in the context of a ligature strangulation were likely the result of fingernail trauma; that is, a combination of fingernails raking across the skin and fingers causing the bruising. These injuries may have been caused by Mr Moradi trying to remove the ligature.

Injury 12 was an area of bruising on the rear right side of the neck at the extremity of the shoulder. As it lay between the parallel ligature marks at that location, it may have been caused by the ligature itself.
Dr Dayman did not observe any facial injuries on the part of Mr Moradi. He considered it notable in considering his injuries that they appeared to be in the area of his lower neck, with no widespread petechiae on the face or within the eyes or conjunctiva, or any other indication of more widespread venous congestion or obstruction to venous flow affecting the head above the ligature marks.
Dr Dayman was asked to assume that Mr Moradi lost consciousness, and to explain in the context of an allegation of strangulation, the mechanism or mechanisms that can cause a loss of consciousness, and the force likely associated with each such mechanism.
Dr Dayman explained that the loss of consciousness was the result of poor or no oxygen supply to the brain. If there was no oxygen and blood flow to the brain, then the loss of consciousness will be rapid.
The first mechanism is the restriction of arterial blood flow. If the arterial supply of oxygen and blood to the brain are completely obstructed, then within five to six seconds the pupils will fixate, and loss of consciousness will occur within about 10 seconds. Seizure activity could be expected within about 15 seconds and death within about a minute. This is much quicker than it takes, for example, to die from drowning. The reason for this is that in this scenario the circulation has been completely occluded. The brain is receiving no blood flow and therefore no oxygen in this scenario. However, in the case of drowning, the circulation continues albeit becoming progressively less. This first mechanism is the most rapid mechanism for loss of consciousness and death to occur in the context of strangulation.
The force required for this first mechanism to occur depends upon where it is applied. If the pressure is applied directly over the carotid arteries, where they are easily palpable in the neck, then little pressure may be required to completely occlude those arteries. There have been some studies suggesting, for example, that the amount of force necessary to open a can of soft drink, if applied with a thumb and finger in that location, would be sufficient. Of course if the force is supplied over a larger area of skin, then a greater force would be required.
The second mechanism occurs where arterial circulation is maintained, but the venous outflow is obstructed. It occurs when enough force is applied to the neck to allow the blood to continue to pump to the head, but not allow the blood out of the head via the veins. The veins become congested, such that the blood in the veins backs up and the pressure in the veins rises. The veins tend to pop, causing petechiae, and then ultimately the person loses consciousness.
The time taken to lose consciousness via this mechanism is longer than the first mechanism. It is more than 10 seconds and might be some tens of seconds. It will depend upon many factors, but largely the degree to which the venous outflow is obstructed, and whether that obstruction is constant or intermittent.
The degree of force required to obstruct venous circulation is potentially less than that required for the first mechanism, but once again it depends upon the nature of the implement or object that is obstructing flow and where it is applied.
The third mechanism is occlusion of the airway. If a person’s airway is occluded, then oxygen levels in the blood continue to decline to a point where the person feels faint or perhaps experiences other neurological symptoms, and then ultimately loses consciousness. This occurs through compression to the neck such that air cannot pass through the airway in the neck.
As for the length of time to lose consciousness, this mechanism is more akin to the example of drowning. It might take a number of minutes to lose consciousness, although it might be quicker than this. But it is a longer process than the other mechanisms because circulation is maintained, and so the heart is continuing to pump oxygen to the head, and blood is returning to the heart. But progressively, because the person cannot oxygenate their blood, the oxygen levels are dropping.
This mechanism also usually involves a greater level of force. In the context of this case, any occlusion occurred at the level of the lower trachea, and the level of force required is greater because the airway at that point has protective cartilaginous rings, and is quite firm and hard. It would take more force than the other two mechanisms.
There is a fourth mechanism, namely direct pressure to a receptor, called a baroreceptor, near the carotid artery. But as there was no sign of trauma at that location, this mechanism does not seem relevant in the context of this case.
Assuming loss of consciousness did occur, Dr Dayman considered that in this case it was not the result of cerebral anoxia, and so not a complete absence of blood flow to the head. It was more likely due to a hypoxic episodes or oxygen levels dropping progressively or over a longer period of time. Given the location of the ligature mark across the front of the neck, along with the reported duration of the assault and evidence of a struggle for breath, this made occlusion of the airway the likely mechanism in this case. However, Dr Dayman was also of the view that there may have been an element of venous obstruction as well. The reason for this was that the petechial haemorrhages described above indicated an area of increased venous pressure around the site of the injuries.
Dr Dayman noted that the hospital notes included reference to haemorrhage spots on the pharynx. Haemorrhage spots in this location at the back of the throat might be petechiae, and if so could have been the result of ligature strangulation, and indicative of venous pressure. However petechiae on the back of the pharynx can also be caused by a number of other factors, such as infection or local trauma. Not having seen any photographs of the haemorrhage spots, Dr Dayman could not be certain as to their nature or causation.
Dr Dayman said that it was difficult to say anything precise about the extent of the force used from the injuries themselves. While there were some bruising and abrasion marks which appeared to be attributable to the ligature, there was also some abrasion and trauma that might have been a result of the victim’s use of his fingers and fingernails. The extent of the injuries would be determined not simply by the force applied, but also the material causing the force. A ligature such as a wire would be more likely to cause damage to the skin than a softer ligature. And a rough one would be more likely to abrade the skin than something smooth. Bearing in mind that the ligature here was a shoelace, a relatively smooth object, and yet the ligature mark was embedded in the skin on the left hand side, with an indentation present two hours later, this implied a significant amount of force. But Dr Dayman was not able to be more precise than that.
Assuming loss of consciousness from obstruction of the airway, this did not assist much further in terms of the force used. The reason for this was that the application of a ligature to the front of the neck could occlude the trachea fairly readily. It would not need to be applied with a greater degree of force than, for example, might be required to occlude the arterial blood flow.
Beyond that, anything more clear or certain about the level of force would require an understanding of the nature of the struggle, including the length of the struggle and how much the victim was trying to protect himself. There were a number of variables.
The next issue of about which Dr Dayman gave evidence was the significance of the lack of evidence of petechial haemorrhaging or swelling around the facial area. Dr Dayman explained that the absence of facial and conjunctival petechiae meant that the venous circulation in that area was either not affected by any rise in pressure, or at least not to an extent sufficient to damage the blood vessels. And the absence of face or lip swelling, in the context of the application of a ligature, meant that the skin in those areas had not become engorged with blood sufficient to cause swelling. However, the absence of facial petechiae and swelling did not mean that there had been a lack of force applied, or that the force was applied for only a short period of time.
In relation to the reference in the notes by Dr Nadia to a small area of haemorrhage on the right tip of the tongue, a possible explanation for this was Mr Moradi biting his tongue in the context of the struggle or seizure.
In terms of the potential for loss of memory following an episode of loss of consciousness, Dr Dayman said that it is quite possible for someone to be strangled and have a loss of consciousness due to poor blood flow, or no blood flow, to the brain and then have that same mechanism produce a loss of memory. This is frequently reported after strangulation events, with people being either unsure whether they lost consciousness or having no recollection of doing so.
The reported loss of feeling in hands and legs is a neurological symptom. If it is long term then it would be indicative of some form of brain damage. But if it was merely transient, then it is likely a symptom of poor blood flow to the area of the brain responsible for sensation in the limbs.
During cross-examination, Dr Dayman accepted that if Mr Moradi did remain conscious throughout the incident, then there may not have been a lack of oxygen to the brain. There may not have been any obstruction of his airway, or at least not sufficient obstruction to prevent him breathing around it. He accepted that some of the injuries were consistent with the shoelace possibly moving during the struggle. He also accepted that it was fair to say that some people bruise more easily than others.
Dr Dayman accepted that the injuries in this case could have been caused by the application of a ligature such as a shoelace for a forceful period of about 30 to 40 seconds. However, he also accepted that it could have been a forceful period of up to two minutes.
The accused’s hospital admission
It was an agreed fact that on 18 January 2018 the accused was admitted to the Lyell McEwin Hospital with an acute kidney injury. He was treated with an intravenous transfusion and discharged on 20 January 2018.
There was no dispute that a clinical mental health assessment performed at 1.23 pm on 18 January 2018 indicated that the accused’s mood and affect were normal.
There was also evidence to the effect that the accused’s injuries included abrasions consistent with his involvement in the struggle with the victim. They also included a laceration to his right index finger, potentially consistent with the use of a shoelace to strangle the victim.
The accused’s toxicology result
While at Lyell McEwin Hospital, blood samples were taken from the accused. In particular, two samples were taken by Dr Anand at 2.08 pm. These samples were subsequently seized by the police on 19 January 2018.
Analysis of the urine produced by the accused on 18 February 2018 revealed the presence of methylamphetamine, amphetamine and 11-nor-9-carboxy-Δ9-tetrahydrocannabinol. No alcohol was detected in the urine.
A vial of the blood taken from the accused on 18 February 2018 was also analysed. This revealed that the blood contained approximately 0.08 mg of methylamphetamine per litre, approximately 0.01 mg of amphetamine per litre and 57 mg of 11-nor-9-carboxy-Δ9-tetrahydrocannabinol per litre. No alcohol was detected in the blood.
Intoxication and dehydration
Dr Salem
Dr Salem is a senior lecturer and the head of the Discipline of Pharmacology at the University of Adelaide. He has a PhD in pharmacology, and has carried out research into the effects of drugs and alcohol on both animal and human brains and behaviour.
For the purposes of giving evidence in this matter, Dr Salem had access to the toxicology results from the blood and urine samples obtained from the accused, as well as the hospital notes from the Lyell McEwin Hospital. He also reviewed video footage from the accused’s arrest.
Dr Salem accepted that the clinical notes suggested that the accused’s mood and affect were normal by 1.23 pm on 18 January 2018. The blood samples were taken at 2.08 pm, and so just over three and a half hours after the incident.
In terms of the concentration of methylamphetamine detected in a person’s blood, this will be affected by factors such as the dose consumed and the timing of the dose. The results here were in terms of the concentration at the time of collection of the sample. While back calculations cannot be reliably performed with urine samples, they can be with blood samples.
Here, the concentration of methylamphetamine in the blood was 0.08 mg per litre. Back calculation suggested a concentration as at the time of the incident between about 0.08 mg and 0.094 mg per litre. Dr Salem was not aware of dehydration having any effect upon the concentration of methylamphetamine in the blood.
Dr Salem was asked to describe the potential effects of methylamphetamine upon human behaviour. He emphasised that different people might respond differently. But speaking generally, methylamphetamine is a stimulant. It operates to alter some of the pathways in the brain that control behaviour. Its effects upon behaviour depend upon the person (including any habituation) and the dosage. The symptoms they exhibit might range from euphoria, through to risk-taking and aggression, through to drug-induced psychosis (as opposed to psychosis that is the product of a mental disorder). The symptoms or behaviours associated with psychosis generally include agitation, aggression, delusion, paranoia and hallucinations.
Dr Salem said the concentration recorded in this case was consistent with ‘recreational’ use of the drug; he described it as a concentration “at the very low range”.
While effects differ for different people, he would not normally expect someone with this concentration to exhibit aggression or psychosis. There was no suggestion in the notes that the accused was experiencing any such symptoms at 1.23 pm on 18 January 2018. Dr Salem said that the duration of such symptoms could be up to four hours. He would expect there to be a pattern in the observations made over this period of time.
Assuming a person was exhibiting drug-induced psychosis, aggression or lack of control at about 10.42 am, Dr Salem said that he would expect to see symptoms of this, at least to some extent, 20 minutes later. That said, different people could have different profiles and so, for example, it was difficult to say that because someone was not exhibiting the above symptoms at one point in time they were not experiencing them 20 minutes earlier. But generally, he would expect such behaviours to still be evident for that sort of time frame.
Assuming the accused was sweating and breathing heavily at the time of arrest (11.04 am, and so a bit more than 20 minutes after the incident), this was consistent with symptoms of both physical exertion and methylamphetamine intoxication. While people’s reactions differed, the symptoms might settle quickly if a result of the former, but would generally continue if the result of the latter.
As for the 0.01 mg per litre of amphetamine, this was generally a metabolite of methylamphetamine, and so was an indication of the methylamphetamine being broken down. It was a very low concentration, and did not affect any of the opinions expressed above.
Similarly, there was a metabolite of THC, the main ingredient in cannabis, present in a concentration of 57 mg per litre. THC itself was not present. The concentrations recorded would not have had any effect on the accused’s behaviour as at 10.42 am.
Assuming the accused was dehydrated, Dr Salem was not aware of any research suggesting this might have compounded the effects of methylamphetamine intoxication. But if it did, he would expect any such compounding effect might become more pronounced over time (assuming the dehydration continued).
He was aware that dehydration could lead to confusion, but also behaviour such as irritability. That said, he accepted that he did not have any formal qualifications as an expert in relation to the physiological effects of dehydration.
In cross-examination, Dr Salem accepted that there was no objective data clearly demonstrating a cause or link between methylamphetamine intoxication and violent behaviour. He also accepted that it was not possible from the toxicology results to determine whether, for example, the accused had taken a small dose of methylamphetamine earlier in the same morning, or a larger dose the day before.
Professor White
Professor White was called in the defence case. He has a PhD in psychology, but also undertook post-graduate study in pharmacology. He became a Professor of Addiction Studies and head of the Department of Pharmacology at Adelaide University, and then a Professor of Pharmacology and head of the School of Pharmacy and Medical Sciences at the University of South Australia. He has undertaken research throughout his career into the effects of drugs on the brain and behaviour, and is an experienced expert witness in that field.
For the purpose of giving evidence in this case he was provided with the accused’s toxicology report, various witness statements, and also viewed the video footage of the accused being arrested and subsequently.
As to the effects of methylamphetamine, Professor White described it as a stimulant. It typically reduces fatigue, and gives people feelings of energy and self-heightened confidence. There can be a range of other changes in behaviour depending on the amount the person consumes. The self-confidence, for example, might result in over confidence and risky or impulsive behaviour. But he clarified that by ‘impulsive’ he did not mean behaviour that was necessarily unintended or uncontrolled. The over confidence and impulsive behaviour can sometimes manifest as aggression. But also if a person experiences psychotic effects or paranoia that might also lead to aggression.
The concentration in this case at the time the bloods were taken was 0.08 mg per litre. This suggests the concentration about two and a half hours later would have been about 0.095 mg per litre. These concentrations are sufficient to produce some effects in an individual but are not particularly high for someone using the drug illicitly. Most such users would achieve concentrations higher than this.
Studies have shown that a concentration of 0.1 mg per litre (which is only slightly higher than here) will produce an observable change in physiological function, including an increase in heart rate. People will usually detect an effect, albeit a modest one. It would produce some decrease in fatigue, and probably a bit more energy and confidence. But it is unlikely to produce any really pronounced effects on a person’s behaviour. The agitation, confused thinking and psychotic symptoms that can occur at high levels are very unlikely to occur at a low concentration such as this. The effects are much more likely to be subtle effects.
Professor White accepted that it was not possible from the information available to him to determine the quantity or timing of the methylamphetamine the accused had taken. Further, the effects on an individual differ, and Professor White did not know anything about the accused, susceptibility or tolerance to methylamphetamine intoxication.
Professor White noted the presence of carboxy-THC in the toxicology report. This is a metabolite of THC. The absence of any THC itself means that while the accused had ingested some cannabis in the past, he was no longer affected by it.

As Dr Dayman explained, Mr Moradi had bruising and abrasion marks consistent with his use of fingers and fingernails in an attempt to remove the ligature. There was also the evidence that the pressure was sufficient to result in the shoelace becoming embedded in the left side of Mr Moradi’s neck.
I note the evidence of Dr Dayman, by reference to the areas where there were two essentially parallel ligature mark on the victim’s neck, that the ligature was probably moved at some point. It is not clear to me when that occurred, but I do not think that stands in the way of the conclusion I have reached as to the force being continuous and significant.
I find that once the accused had released or lost his grip on the shoelace around Mr Moradi’s neck, he then stood up. He looked exhausted, with a red face and perspiring. Based upon the evidence of the passers-by (particularly Mr Wood, but also Ms Woolger and Mr Wallace), I find that the accused initially took a couple of steps back before starting to walk away. He headed away from the incident in a southerly direction, over Salisbury Highway and then heading west down Middleton Street. He commenced in a relatively slow or casual pace, before quickening his pace as he crossed Salisbury Highway into Middleton Street. I accept the evidence of Mr Wood and Officers Guitink and Green as to the way in which the accused made his way down Middleton Street. By this stage he was walking with haste and attempting to quicken his pace further, but was doing so in a laboured fashion. He was visibly exhausted, looking out of breath and perspiring. He looked behind himself at least two or three times, apparently checking to see if he was being followed.
I find that the accused turned left into Eliza Street at the bottom of Middleton Street. Once he reached 63 Eliza Street, an address where he had been staying, he attempted, or was in the process of attempting, to climb over the fence when Officers Guitink and Green caught up with him. The fence was a high one, which would have made it difficult to climb over. However, I accept Officer Guitink’s evidence that he attempted to do so at the location of a dirt mound up against the fence.
I also accept the evidence of Officers Guitink and Green as to their observations of the accused while they were with him out the front of 63 Eliza Street. I have earlier summarised the relevant aspects of this evidence. This included the accused appearing exhausted, being out of breath and perspiring; rummaging through the items on the rear tray of the utility parked out the front of 63 Eliza Street; and asking Officer Guitink for a drink of water while indicating towards the backpack in the rear tray of the utility.
Premeditation / motive
The evidence suggests at least some short period of premeditation by the accused, given that he was seen running towards the victim and then holding the shoelace in both hands in the moments preceding his attack and strangulation of Mr Moradi.
However, I am not satisfied that the evidence reveals any greater level of premeditation or planning. The prosecution emphasised the fact that the accused had the shoelace in his possession, and that it had come from one of his shoes at 63 Eliza Street, and not one of the shoes he was wearing at the time of the attack. The prosecution invited me to infer that the accused had quite deliberately armed himself with the shoelace for its use as a weapon. The prosecution contended that even if someone else was responsible for removing it from the shoe, the accused must have received or taken possession of the shoelace for its use as a weapon.
I am not satisfied that the accused took possession of the shoelace with the intention to use it as a weapon. While that is possible, it is also possible that he had it with him (or in his pocket) for some other reason and only decided to use it as a weapon in the moments preceding the attack. He may, for example, have had it on his person for use as a tourniquet for use if injecting himself with methylamphetamine. I make no finding to this effect, and of course draw no adverse inference from the fact that (as the toxicology report reveals) the accused had consumed some methylamphetamine in the preceding period. I simply raise this possibility in explaining why I do not consider it appropriate to draw the inference contended for by the prosecution.
In my consideration of the evidence relevant to the issue of intention (including the possible effects of the accused’s intoxication and/or dehydration), the lack of any apparent explanation or motive for such a serious, and yet brazen, attack upon Mr Moradi is a relevant consideration.
Of course, neither the existence nor identification of a motive is an element of the offence of attempted murder (or endangering life). Sometimes even serious offences are committed by persons without them possessing any apparent motive. In some cases the motive exists but is unknown; in other cases there may not exist any motive. The existence and identification of a plausible motive may be very relevant in drawing an inference of intention. Conversely, the absence of any apparent motive is a matter that is relevant to whether it is appropriate to draw such an inference.
Here the prosecution suggested that a possible motive lay in the desire to undertake a racially motivated ‘show killing’. While there is some evidential basis for this suggested motive (given the appearance of Mr Moradi and the very public setting of the attack), I do not consider it appropriate to make a finding to this effect. In my view, it would be speculative to do so. Again, I accept it is a possible explanation, but nothing more than a possible explanation.
I therefore approach my consideration of the balance of evidence, and the issue of the accused’s intention, on the basis that the evidence does not permit the identification of any explanation or motive for the accused’s serious and brazen attack upon, and strangulation of, Mr Moradi.
Intoxication / dehydration
As I have observed, a person’s intention may be inferred from their conduct. However, in considering whether and what inference it is appropriate to draw, it is necessary to take into account any factors which might have interfered with the person’s mental processes. Circumstances of heightened stress or emotion, intoxication by alcohol or some other drug, or indeed some physical or mental condition such as dehydration, might have affected that person’s mental processes, and hence their perceptions, beliefs and levels of contemplation and understanding. Any such interference with a person’s mental processes might mean, for example, that a person does not consider, let alone intend, consequences that would otherwise be obvious or inevitable consequences of their conduct from the perspective of a person not so affected.
The consequential need for caution in inferring the existence of intention (and in particular the various species of specific intention required by offences including attempted murder) has been emphasised in numerous authorities.[12]
[12] The Queen v O’Conner (1980) 146 CLR 64 at 87-88; R v Tucker (1984) 36 SASR 135 at 138-139; R v Shinner (1993) 173 LSJS 384 at 385-386; R v Wingfield (1994) 176 LSJS 14 at 15-18; R v Gardiner (2013) 117 SASR 143; [2013] SASCFC 53 at [180]-[182].
In R v Wingfield, King CJ said:[13]
The intention of the appellant was a crucial issue. The injuries which he caused were grievous. If caused by a sober rational man, the inference that they were caused with the intention of doing grievous bodily harm would be strong. The appellant, however, had no rational cause to do grievous bodily harm to the child and the appellant was drunk. These circumstances demanded a careful direction to the jury as to nature of the intention which was required for a verdict of murder and as to the bearing of intoxication upon the issue of intention. …
The appellant’s intoxication was an important element in the case. The nature of the injuries were such that, if the perpetrator were sober and otherwise in his right mind, the inference that grievous bodily harm was intended would be almost inevitable. This appellant, however, was not sober. He was undoubtedly drunk. …
[T]he jury … did not have the advantage of a direction which directly brought to bear the directions as to intoxication upon the vital issue which they had to decide. Deliberations of the jury would have been greatly assisted, in my opinion, by being reminded directly that inferences to intention which might be readily drawn from the nature of the injuries inflicted if the perpetrator is sober, might not as readily be inferred if the perpetrator is drunk, and that the critical issue for their consideration was whether, by reason of his drunkenness, the appellant might have inflicted these grievous injuries notwithstanding the absence of an intention to inflict that degree of harm.
[13] R v Wingfield (1994) 176 LSJS 14 at 15-18.
I emphasise that the relevant issue in this case is not whether there was a reasonable possibility that the accused was incapable of forming the requisite intention. Rather, it is merely whether there is a reasonable possibility – bearing in mind the evidence as to the accused’s intoxication and/or dehydration – that he did not in fact form that intention.
I also note in passing that s 268 of the Criminal Law Consolidation Act 1936 (SA) has modified the common law in relation to intoxication in some respects.[14] However, I do not think, and it was not suggested by counsel, that these modifications are of any practical relevance in the present case.
[14] R v Childs (2007) 98 SASR 111 at [71-73], [82]; see also R v Ford [2016] SASC 112 at [14].
Section 268(2) modifies the common law in respect of voluntariness or basic intent, preventing reliance upon self-induced intoxication in that context. However, in the present case there is no dispute in relation to basic intent. As to specific intent, the modification to the proof of specific intent in s 268(1) is very limited, and of no application here. Further, the effect of the combination of ss 268(2) and (3) is that self-induced intoxication remains a relevant and permissible consideration in assessing a state of mind involving the foresight of consequences – which would include the specific intent required by attempted murder.
I turn now to consider the evidence in relation to intoxication and dehydration in the present case.
There was no alcohol in the accused’s blood. Further, while there was a metabolite of THC found in the accused’s blood and urine, indicating that at some point in the relatively recent past he had consumed some cannabis, I am satisfied on the basis of the evidence of Dr Salem and Professor White that the accused was not affected by this when he strangled Mr Moradi.
The concentration of methylamphetamine in the accused’s blood was 0.08mg per litre at the time the sample was taken, and allowing for the back calculations by Dr Salem and Professor White, likely somewhere closer to about 0.095mg per litre at the time of the incident. This is a relatively low concentration, and below or at the bottom end of the range of concentrations usually achieved by recreational users.
I accept that caution is appropriate in extrapolating from a particular concentration level to any conclusion about the effects upon any particular individual. As both Dr Salem and Professor White emphasised, the effects of a given concentration of methylamphetamine will vary from individual to individual, depending upon various matters such as their particular susceptibility or level of habituation. The evidence reveals nothing about the accused in that regard.
However, I am satisfied that some generalisations can be made, and are of some assistance when considered in conjunction with the balance of the evidence. In that regard, I accept the evidence of both Dr Salem and Professor White to the effect that at the concentrations mentioned above a person is likely to be affected to some extent. They are likely to experience some of the stimulant effects, manifesting themselves in terms of some level of euphoria and confidence. There may also be some alteration of behaviour in the sense that the person might become more prone to being irritable or aggressive. However, a person would not ordinarily experience the more significant effects that occur in the cases of higher concentrations, such as paranoia, delirium or psychosis.
In determining whether a person is experiencing the more significant effects associated with paranoia, delirium or psychosis, there was a slight difference in emphasis in the evidence of Dr Salem and Professor White. The former suggested that if these effects were present, then he would generally expect them to be present for a sustained period and hence be observable over such period. Professor White, on the other hand, emphasised the potentially fluctuating nature of these effects. As I said, the difference between the two was essentially one of emphasis. But to the extent there is a difference, I accept the evidence of Professor White and hence have made allowance in my consideration of the evidence for the possibility of fluctuating symptoms.
Moving to the topic of dehydration, neither Dr Salem nor Professor White purported to have direct expertise in the physiological effects of dehydration. However, both were able to and did express some general opinions. Both gave evidence that dehydration, at least when relatively severe, can interfere with a person’s mental processes. As Professor White explained, it can lead to confusion, and in some cases delirium. I accept this evidence.
In this case, the evidence establishes that the accused was at the relevant time suffering from at least some level of dehydration. It is an agreed fact that upon his admission to hospital a few hours after the incident on 18 January 2018, he was diagnosed with an acute kidney injury and was kept in hospital until 20 January 2018. Further, the fact that it was a hot day, that he had been exerting himself to at least some extent, and that he was asking for water and appeared parched when the police caught up with him at 63 Eliza Street, all support a finding that he was dehydrated around the time of the incident. However, as with intoxication, it is difficult in the abstract to draw anything but the most general of conclusions about the effects of dehydration upon an individual. An inference as to the extent of any influence upon their mental processes can only safely be drawn after considering the evidence as to their conduct as a whole.
Before turning to consider that evidence, I add for completeness that neither Dr Salem nor Professor White suggested that there was any basis for thinking that methylamphetamine intoxication and dehydration might work together in some synergistic manner. That said, and while he did not suggest any direct relationship of this kind, Professor White did make the observation that methylamphetamine intoxication may contribute to someone behaving in a manner which is inappropriate for the conditions (such as over-exerting themselves in very hot conditions), and that this might contribute to the fact and extent of any dehydration.
There are a number of aspects of the evidence relevant to my assessment of the likely extent of the effects of methylamphetamine intoxication and dehydration upon the accused’s mental processes. This evidence comes not only from the very nature of his conduct in attacking Mr Moradi in the manner he did, and without any apparent explanation or motive for what he did, but also the more detailed observations made of the accused’s behaviour in the period following the incident. The latter include not only observations made by various witnesses, but also those I have made when watching the video footage of the accused.
There were several aspects of the evidence suggestive of some interference with the accused’s mental processes by reason of his intoxication and/or dehydration. These included the initial lack of urgency in the accused’s conduct when leaving the scene, but also more significantly his behaviour and affect once the police caught up with him at 63 Eliza Street. Officers Guitink, Green and Leedham described him as non-responsive. From my observations of him on the Arrest Video, he appeared to be not only exhausted but also on occasions to have a somewhat dazed or confused look about him.
However, the above aspects of the evidence must be weighed against the following. The accused’s attack was not entirely spontaneous, in the sense that he was seen running to catch up with Mr Moradi, and holding out the shoelace between his hands before using it. Mr Moradi was not facing the accused, or showing any sign of aggressive or threatening behaviour that might have been misunderstood or misinterpreted. Indeed, he was moving away from the accused at the relevant time. The strangulation was skilfully and forcefully executed, with the accused not appearing to be in a rage or otherwise out of control. He reacted to the sound of the horn from Mr Wallace’s bus. Further, once the strangulation had ceased, the accused does not appear to have been at all disorientated. The route that he travelled was the most direct route to the nearby house where he had been staying. When making his way down Middleton Street he looked behind himself at least a couple of times, suggesting he was concerned to know whether he was being followed.
While his apparent desire or intention to climb over the front fence of 63 Eliza Street may seem unrealistic given its height, it is noteworthy that he had the presence of mind to attempt to do so at a location where there was a dirt mound that reduced the effective height of the fence. The accused also had the presence of mind to ask Officer Guitink for some water, and to indicate where some water might be found. Presumably it was this desire for water that had led to the accused rummaging through the items on the back of the utility as the police arrived.
While I have described the accused as non-responsive and having a dazed and confused look about him at times, he did not display any hostility or aggression, or even irritability, towards the police officers. He did not do so either at the time of his initial arrest outside 63 Eliza Street, or throughout the balance of the day while he was in the custody of the police. His mood and affect remained generally calm and compliant throughout this period of time. The assessment performed on him at the Modbury Hospital at 1.23 pm indicated that his mood and affect were by that time normal.
Even while at 63 Eliza Street, the accused appeared to understand and comply with the basic directions given to him. He moved when told to do so. He manoeuvred himself into the police van when required to do so, albeit in a somewhat awkward manner.
By the time of the Elizabeth Cells and Hospital Videos the accused appeared more alert and responsive. While still showing some signs of confusion and exhaustion, he appeared more aware of his surroundings. He had the presence of mind to enquire why he was at hospital, and to ask whether he might be able to go inside rather than wait outside. On the other hand, I accept that there were some aspects of the accused’s behaviour suggesting he remained affected by his intoxication and/or dehydration at least to some extent. As I mentioned in my summary of these videos, he was at times unsteady on his feet; he banged his head into a wall at one point; he made a loud growling sound when in the police van; he made attempts to remove or bite the bags that had been put over his hands; and he also spent some time trying to pick some object up from the ground.
The accused’s condition improved further by the time of the subsequent videos. By the time of this footage the accused appeared reasonably aware of what was going on. He became generally responsive to, and interactive with, the police. It did appear at one point that the accused pretended to fall asleep, apparently to avoid engaging Officer Pursche. But I do not attach any material significance to this relatively short episode of apparent defiance.
Conclusion as to intention

In considering what inference it is appropriate to draw as to the accused’s state of mind when he strangled Mr Moradi, I have had regard to all of the evidence I have summarised and analysed above. This includes the moments prior to the attack (when the accused was trying to catch up to the victim with the shoelace held in both hands, and with Mr Moradi facing and moving away from him). It includes the significant nature of the strangulation episode (involving the application of a ligature to Mr Moradi’s neck, for a period of one to two minutes, with significant and sustained force, and with a very direct and obvious risk of death). Strangulation of this nature is very purposive conduct; it is conduct from which one may readily infer an intention to kill, as opposed to an intention merely to threaten or cause some less serious form of harm. That is particularly so in circumstances where the accused appears to have been using all the force he could muster in applying the ligature to Mr Moradi’s neck. The evidence to which I have had regard also includes the accused’s efforts to escape; and his behaviour and affect in the presence of the police.
I have taken into account the apparently unexplained nature of the attack, and the fact that the accused was clearly affected at least to some extent by his intoxication and/or dehydration. I accept that the accused’s decision-making may well have been impaired; that he may have experienced a degree of confusion, and may have been prone to acting in an aggressive and impulsive manner. However, I am satisfied that the prosecution has excluded any reasonable possibility that the accused was confused, delirious, psychotic or otherwise affected to the extent that he did not know and understand what he was doing when he strangled Mr Moradi, and the risk of it causing death to Mr Moradi. While I allow for the possibility (adverted to by Professor White) of fluctuating symptoms, the absence of any significant symptoms of confusion, delirium or psychosis, or even hostility or aggression, throughout the hours following the attack is significant.
In all of the circumstances, I am satisfied beyond reasonable doubt that when he strangled Mr Moradi, the accused intended to kill him.
Verdict
For the reasons I have set out, I am satisfied that each of the elements of the charge of attempted murder has been established beyond reasonable doubt.
I find the accused guilty of the charge of attempted murder.