R v Richmond - [2011] SADC 31

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v RICHMOND
Criminal Trial by Judge Alone
[2011] SADC 31
Reasons for the Verdict of His Honour Judge Nicholson
23 March 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY
Defendant charged with aggravated causing serious harm with intent to cause serious harm - defendant suffering from mental illness and found to have been mentally incompetent to have committed the offence - objective elements disputed - complainant asleep until after the assault had been completed - the prosecution case that the defendant was the perpetrator wholly circumstantial - objective elements established beyond reasonable doubt.
Verdict: Defendant not guilty of the offence by reason of mental incompetence. Declaration made pursuant to s269FB(3) of the Criminal Law Consolidation Act 1935 that the defendant liable to supervision under Part 8A of that Act.
Criminal Law Consolidation Act 1935 ss 21, 269B, 269E, 269F(5), 269FB(3), 269O, referred to.
Question of Law Reserved (No 1 of 1997) (1997) 70 SASR 271, considered.

R v RICHMOND
[2011] SADC 31
Introduction

Belinda Carolyn Richmond was charged on an Information dated 28 June 2010 with the offence of aggravated causing serious harm with intent to cause serious harm. It is alleged that during the evening or night of 16 March 2009 she struck the face of the complainant, Ercan John Corak (her domestic partner at the time) with a machete whilst he was asleep. The defendant pleaded not guilty to the offence but, in addition, raised the issue of her mental competence, at the relevant time, to have committed the offence charged.
The defendant elected pursuant to s269B of the Criminal Law Consolidation Act 1935 (“theAct”) to have the question of mental competence dealt with by judge sitting alone. In the exercise of the discretion available to me under s269E of the Act, I determined that the issue of mental competence should be dealt with first before dealing with the objective elements of the offence charged.
When mental competence to have committed an offence is raised, the onus rests with the defence on the balance of probabilities. I heard briefly from counsel for the prosecution and counsel for the defence both of whom agreed and consented to me making a finding that the defendant was mentally incompetent to have committed the offence. Both agreed that I could dispense with an investigation into this issue in accordance with s269F(5). Nevertheless, I have read and considered the psychiatric reports provided by Dr Craig Raeside, dated 18 May 2010 and 22 December 2010 and by Dr Michael Schirripa dated 3 December 2010, both of whom are highly experienced and qualified forensic psychiatrists. On the basis of these reports and after having heard from both counsel, I was satisfied on the balance of probabilities and made a finding on 10 January 2011, that the defendant, at the time of the relevant events, was suffering from a mental impairment, namely, an acute relapse of schizoaffective disorder being a combination of schizophrenia and bipolar disorder.
I also found that, as a consequence, the defendant was unable to understand that the conduct alleged to have been committed by her was wrong. I therefore found and recorded a finding that the defendant was, at the time of the alleged offence, mentally incompetent to have committed that offence.
The defendant has also put in issue the objective elements of the offence. If the objective elements were to be established beyond reasonable doubt it would follow from the finding I have made, as to the defendant’s mental incompetence, that she would be found not guilty of the offence by reason of mental incompetence. In these circumstances I would be required to declare, pursuant to s269O of the Act, the defendant to be liable to supervision under Part 8A of the Act, to then determine whether to release the defendant unconditionally or whether to make a supervision order in terms envisaged by Part 8A. However, if the prosecution were to be unable to establish beyond reasonable doubt that the objective elements of the offence had been committed by the defendant, she would be entitled to a verdict of not guilty of the offence.
After I handed down my ruling on the issue of mental competence, the defendant, through her counsel, made a fresh election to have the objective elements tried before me sitting as a judge alone.
Objective Elements of the Offence
Ordinarily, the following five elements comprise the offence of aggravated causing serious harm with intent to cause serious harm:
(i)the first is that the perpetrator caused serious harm to the alleged victim;
(ii)the second is that the act causing serious harm was a conscious act and was deliberate as opposed to accidental;
(iii)the third is that the perpetrator acted unlawfully;
(iv)the fourth is that at the time the perpetrator inflicted serious harm to the alleged victim he or she had the specific intent to inflict serious harm;
(v)the fifth is that the serious harm was inflicted by use of an offensive weapon.
The inquiry before me is only as to whether or not the prosecution can establish beyond reasonable doubt that the objective elements of this offence were committed by the defendant. The objective elements are those set out in (i) and (v) above. The elements in (ii) and (iv) are subjective elements and are not to form part of the inquiry. As far as the element identified in (iii) above is concerned there is no suggestion that any conduct by the defendant, if proved, was lawful in any way. There certainly has been no suggestion of self defence and even if this issue did arise it would not form part of the inquiry because it would necessarily involve consideration of a mental or subjective element.[1]
[1] Question of Law Reserved (No 1 of 1997) (1997) 70 SASR 271.
It has not been challenged by the defence that the injuries suffered by the complainant on the night in question were caused by a machete that was found by police, apparently discarded, in the front yard of the house. In any event, the complainant’s evidence, the medical evidence as to the nature of the injuries suffered and the finding of blood like staining on the blade of the machete which contained a complete DNA profile matching that of the complainant[2] are sufficient, in my view, to prove beyond reasonable doubt that the machete found in the front yard was the weapon which caused the complainant’s injuries. In addition, it has not been challenged by the defence and I am satisfied, in any event, that the evidence of the complainant and the medical evidence establish beyond reasonable doubt, that the complainant suffered serious harm as that term is defined for the purposes of the offence under consideration.[3] Finally, it has not been challenged by the defence and I find beyond reasonable doubt, in any event, that the machete in question constitutes an offensive weapon as that term is defined for the purpose of this offence.[4]
[2] Likelihood ratio > 1 billion to 1.
[3] See the definition in s21 of the Criminal Law Consolidation Act 1935.
[4] See the definition of offensive weapon in s5 of the Act.
It follows that the only issue seriously in contention, insofar as the objective elements of the offence are concerned, is the question of whether or not it was the defendant who struck the complainant with the machete. In this respect, the prosecution led what was essentially a circumstantial evidence case.
General Directions
Whilst the Court of Criminal Appeal in this State has made it plain that it is not necessary for the court, having conducted a trial by judge alone, to set out in the reasons for verdict the standard or obvious directions of which the trial judge is bound to be aware, I have nevertheless reminded myself of the following:
(i)The defendant is presumed to be innocent unless and until guilt[5] has been proved beyond reasonable doubt.
(ii)The prosecution bears the burden of proving each of the objective elements beyond reasonable doubt. The defendant does not carry any onus of proof and to the extent that she might put forward a defence she does not have to prove it.
(iii)By way of amplification of (ii), it is not sufficient for the prosecution to show a suspicion of guilt or even to demonstrate probable guilt. Only proof beyond reasonable doubt will do. It follows that if I am left with a reasonable doubt as the establishment of an objective element of the charge, I must give the defendant the benefit of that doubt and find her not guilty.
(iv)On the evidence adduced on behalf of the Director of Public Prosecutions and the defence it is plain that the two protagonists that evening, the complainant and the defendant, had been drinking alcohol and the complainant had been taking prescription methadone. I remind myself that the intoxication of a witness by alcohol or drugs may affect the proper assessment of his or her reliability as a witness. It is common experience that intoxication can have an adverse bearing on a person’s perception of relevant events. It is also common experience that intoxication can affect a person’s subsequent recall of relevant events. Because intoxication can affect or alter a person’s state of mind, the fact of intoxication of each of these witnesses, provided there is some evidence of its extent, is relevant to my consideration of their evidence and to my assessment of their credibility and reliability.
(v)I have reminded myself of the directions typically provided, in this State, to juries concerning the proper approach to assessing the one witness (the complainant) who gave evidence and the information provided by the defendant in her record of interview, including their credibility and reliability and the proper approach to drawing inferences of fact. In this respect I have reminded myself of the typical direction pertinent to a case based wholly on circumstantial evidence given to juries in this State. For the prosecution to succeed, I must be satisfied that the inference that the defendant was the perpetrator is not only an inference available on the facts as proved by the prosecution, but the only rational inference available. There must be no other reasonable possibility consistent with innocence.
(vi)In this case the defendant elected not to give evidence in this court; she remained silent. I remind myself of the following matters. She was not bound to give evidence. She had the right to decline to give evidence. Because that was her legal right I must not draw any inference adverse to her or the case she has put forward from the exercise of that right. There may be many reasons why she did not give evidence and I should not speculate on those reasons. The defendant’s silence in court is not evidence against her, it does not constitute an admission by her, it may not be used to fill gaps in the evidence tendered by the prosecution and may not be used as a makeweight in assessing whether the prosecution has proved its case beyond reasonable doubt.
[5] I use the term “guilt” here, perhaps literally inappropriately but as a shorthand reference to the prosecution’s obligation to prove that the defendant committed the objective elements of the offence.
The Prosecution Evidence
Counsel for the prosecution tendered, with the consent of the defence, a number of declarations and other documents prepared by various persons involved in the investigation, a transcript of record of interview with the defendant and three bundles of photographs.[6] A video recording of the record of interview with the defendant was also tendered, not quite all of which was played in open court.[7] I remind myself that the evidence before me is that which is contained in the recording of the interview and that the transcript is only of use as an aide memoire and only to the extent that it represents an accurate transcription of the record of interview. Essential to the prosecution case was the evidence of the complainant.
Evidence of the Complainant
[6] Exhibits P1 to P4 inclusive.
[7] Exhibit P5. A short section at the end was not played. Both counsel agreed that it contained nothing of significance and this is confirmed by the transcript. The bulk of the interview as played, was very lengthy and I had ample opportunity to form an assessment of the defendant based on her presentation during the interview.
Mr Corak told the court that he and the defendant were in a relationship more than 20 years ago when they were teenagers. They had seen each other for about a year or so after which he went away for about four years. When he returned they commenced living together and had a child together. Mr Corak then went away again and did not see the defendant nor their child for many years. During that period away Mr Corak spent some time in prison. Recently, Mr Corak was reacquainted with their son, Curt, who was by then in his early twenties.[8] Following this re-acquaintance with his son he met again and recommenced his relationship with the defendant. They resumed living together in or about November 2008, some four months or so before the incident the subject of this trial occurred (16 March 2009). He described the resumed relationship.
It was good at first and I was working and that. We started drinking a lot so, yeah, started going up and down a bit.
[8] In the transcript of Mr Corak’s evidence this son’s name is recorded as “Curt”. However in other materials, for example, the transcription of the defendant’s record of interview, the name is recorded as Kirk. It may even be that the correct name and spelling is Kurt. I have adopted “Curt” throughout these reasons.
He said that they had “alcohol-fuelled” arguments from time to time, initiated by both of them. He had been living with the defendant permanently during that four month period and sharing the main bedroom with her although there were times when he would go and stay at his mother’s house after an argument. On such occasions, he might have stayed there two, three or four days before coming back.
Mr Corak told the court that he did not have any particular awareness of the defendant’s mental health problems – “there was no real indication of it” and he did not see her take medication. He described the day of the incident as an average or normal day. He wasn’t working on that day, the two of them got up had breakfast and then went to buy some beers. He said that another son of the defendant, Shane, had come with a friend to see them the day before because it was his birthday. Mr Corak was not certain of this and later conceded that Shane and his friend may have come over on the morning of the incident. Mr Corak did not see much of Shane. He thought he was about 16 years of age. He was aware that Shane and his older brother Curt would see each other from time to time. Shane was given $100 for his birthday.
Neither Mr Corak nor the defendant had drunk any alcohol before they went out to buy the beers. He thought they bought three long neck bottles and walked down to the local park where they drank them.
On the way home they had an argument. On the evidence given by Mr Corak and also the description given by the defendant in her record of interview this argument can only be described as relatively minor and certainly not the sort of argument that, on its own, might provide a motive for engaging in a serious physical assault. According to Mr Corak by the time they returned home the argument had “burnt itself out”. After they went inside he decided to return to the hotel to buy more beer. He described himself as being angrier that day for some reason and put it down to the alcohol that he had drunk although he did not concede that he was seriously affected at the stage he arrived home. He described the defendant as being tipsy. He thought he might have bought six or three more long necks. He took them home where he and the defendant consumed them.[9]
[9] According to the information given by the defendant in her record of interview, the two of them bought and consumed a greater number of bottles of beer during the day than Mr Corak was able to recall.
Mr Corak said that he was on the methadone program. In cross-examination he said that he usually took his methadone in the morning. He conceded that, in his experience, the combined effect on him of alcohol and methadone was greater than the effect of alcohol alone by about a factor of three. In particular, when he took both methadone and a substantial amount of alcohol he would sleep more heavily.
He said that after he returned with the second lot of beers the two of them did not argue but they discussed the need to stop arguing and he said that if they were going to continue with arguments it probably be would better if he went back to his mother’s house. The defendant responded by saying that she did not want him to go to his mother’s house. He described her as being “a bit emotional”. After they drank the second round of beers they engaged in sexual intercourse at about 6 o’clock that evening. Mr Corak said that they had “made up by then”.
It was a hot day and the only airconditioner in the house was in the lounge room. There was a single mattress on the lounge room floor on which Mr Corak and the defendant slept on hot nights. According to Mr Corak both he and the defendant were completely naked when they engaged in the mutually initiated sexual intercourse in the lounge room after which he fell asleep. It was still light outside. Some time later, Mr Corak awoke for the first time and noticed that the defendant was no longer present. He thought she must have gone for a walk and told the court that she “normally” would go for a walk to feed some ducks that were nearby. He said that he remembered getting up from the bed and calling out to her.
She wasn’t home and I seen her keys were hanging up on our key rack so I didn’t lock the front door and that. I just pushed it shut and I went and laid back on the mattress and fell asleep again.
He could remember that they were both on the bed when he fell asleep although he did not recall whether or not the defendant had fallen asleep. He also recalled it being still light outside when he first awoke and noticed she wasn’t there. The front door was open a bit but the screen door was closed. He went and pushed the front door to but didn’t lock it. Mr Corak estimated the time he first awoke to have been about 7.30 or 8.00pm.
When Mr Corak awoke this first time he did not see or hear anything that might have suggested to him that someone else was in the house. Mr Corak gave this evidence[10]
[10] T38
QCan you tell me what happened once you’d fallen back to sleep after that time, 7.30, 8 o’clock.
ANo, well, I woke up again and, yeah, my head just felt really weird, numb. I put my hands on my face. There was blood. I don’t recall anyone hitting me or nothing like that. I must have been unconscious or still asleep. I don’t recall any of it.
QWhen you woke up, were you in any pain.
AI was confused. I didn’t feel nothing but all my face just felt numb and yeah, when I put my hands on my face, I couldn’t feel it. Like it wasn’t even there.
QWas it light or dark when you woke up.
AI’m not sure.
QWhat did you see when you first woke up.
AWell, I looked and I seen Belinda standing where the front door was.
QHow far was she from the front door.
AA couple of steps.
QHad you heard her come in.
AWell, I thought I heard the front door shut. I wasn’t sure. Something woke me up, I know that. I just thought it was the front door. I’m not really sure.

He then told the court that when he first looked up the defendant was looking at him and that she ran out the front door, He could not recall seeing anything in her hands. He immediately jumped up because he thought there must have been someone else in the house. He too ran out the front door before realising that he was still naked. He observed the defendant appear to bend down, as if to pick something up, and then take off again. However, he had no recollection of actually seeing anything in her hands, even then.[11] Mr Corak went back inside and pulled his shorts on. It was only then that he looked in the bathroom mirror and saw that his face was bleeding. He grabbed a T-shirt, put it to his face, ran next door to his neighbour’s house and medical assistance and police became involved. He did not see the defendant again that night.
[11] The location where Mr Corak saw the defendant stop and bend down was marked by him on the plan exhibit P6 and identified as “Belinda second”.
He said that when he first saw the defendant at the front door she looked “shocked”. He later described her look as one of “horror”. She was wearing a floral dress that, ordinarily, would start at the waist but she had it pulled up so that the waist band was over her breasts with the dress itself falling to cover her backside and thighs.
Mr Corak arrived at the Emergency Department of the Royal Adelaide Hospital at approximately 1am. He sustained two full thickness lacerations to the left and right mandibular (lower jaw) regions which required suturing. He also suffered a minimally displaced comminuted fracture of the anterior body of the right mandible, as described in the statement of Dr Sharad Ramdas.[12] The fracture was reduced and held with a plate and screw device. The injuries and the operative and post-operative treatment are more fully described in the statement of Dr. Ramdas. Mr Corak remained in hospital for nearly a month. There is no evidence of any injuries such as might have been suffered had he actively defended himself. This lends corroboration to Mr Corak’s evidence that he was unaware of the attack at the time it occurred, by inference, because he remained deeply asleep.
[12] Dated 27 August 2009 and part of exhibit P1.
Mr Corak told the court that, as at March 2009, a shed previously in the back yard had been pulled down and that various garden tools formerly stored in that shed had been relocated throughout the house itself. As no time after Mr Corak awoke the first time until he headed off to the neighbours house did he see or hear anything to suggest that anyone was in the house. However the doors of some of the rooms (for example the laundry and the bedrooms) were shut and he was unable to make any specific observations with respect to those rooms. According to Mr Corak there were two back doors to the house, one in the laundry and a back door to the dining room, but he was unable to say whether they were open or closed, locked or unlocked on the evening in question. Whilst he was at the neighbour’s house he could see the front window and the driveway of his house and at no time did he observe anyone go into or come out of the house before the police arrived.
Whilst he was in hospital he was visited by his son Curt and also by Shane. After a couple of days the defendant visited him. He described his relationship, at the time, with both Curt and Shane as “good”. Whilst in hospital he arranged for Curt to bring to him his wallet which was in a drawer in the dining room where Mr Corak had last left it. The wallet still had a substantial amount of money, in the order of $700, in it. Curt also retrieved Mr Corak’s mobile phone from the location where he had last left it. There is no evidence that any robbery took place on the evening in question and there is no evidence of any intrusion in the house apart from the fact of the assault itself.
Mr Corak told the court that included amongst the tools that had been relocated from the shed were two machetes. They were both old but one, looked newer than the other. They both had wooden handles. The blade of one was corroded and that of the other was in better condition. Mr Corak did not know to whom they belonged although he thought they might have been Curt’s. When they were removed from the shed they were put in a drawer in a chest in the main bedroom, that is, the bedroom that he and the defendant occupied. Mr Corak’s evidence is not entirely clear about whether both machetes were kept in this drawer or just the one. However, he recognised the machete shown in the first three photographs in exhibit P2 (that used in the attack) as being the one that was kept in the drawer in the main bedroom. He did not recall seeing this machete on the night of the incident. He had put the machete(s) in the drawer in the main bedroom about a week or two before the incident. The following exchange occurred during his evidence in chief[13]
[13] T69
QDid anyone see you do that.
AOnly Belinda I think maybe. We were in the process of trying to move and yeah. The shed had to go otherwise Belinda would have got a bill from the Housing Trust so we gave it away. It would have only been a couple of weeks, tops.
QDid you tell anyone where you had put that machete.
ANo.
QOr that machete and the other machete.
ANo, not really, no. I don’t think so.
QTo your knowledge, did anyone other than yourself and [the defendant] know where that machete had been placed.
ANo, my son might have but no, I don’t think so. Beside yeah, Curt, he might have known because he used to borrow my tools and that but I don’t recall telling him.
QDid you see the machete between the time you said that you can’t recall seeing it on the night of the incident. Had you seen it at any stage between the time that you had put it in the drawer and the night of the incident.
ANo.
QHad you gotten it out for any reason.
ANo.
QHad you seen anyone else get it out.
ANo, I didn’t.
Mr Corak told the court during his examination in chief that prior to that night he had not had any arguments with anyone other than the defendant.
During his cross-examination, Mr Corak agreed that he was aware of an occasion prior to his living with the defendant, when someone broke into the house and left graffiti. There also was an occasion, whilst Mr Corak was living in the house, when the defendant’s son Shane broke in. Mr Corak said he really didn’t know Shane or his friends and had only spoken to Shane perhaps twice in his life. On the occasion that Shane broke into the house he stole Mr Corak’s phone. Mr Corak conceded that this made him cross but he did nothing about it other than to ring him up.
QDid you threaten him.
AYeah, a little bit, I did.
QWhat did you say.
AI can’t recall now what I said to him.
QThis is obviously before this particular night you’ve been giving evidence about.
AYeah.
QHow soon before.
AWeek, it was two or three weeks maybe.
QNot so long before this night.
AYeah.[14]
[14] T75.
Mr Corak conceded that Curt did know about the location of the machetes as did the defendant but he maintained that he did not know if Shane knew. He was asked again about the look that the defendant had on her face when he saw her standing by the door and he agreed that it wasn’t a nasty look but rather more of a frightened look.
The Defendant’s Record of Interview
The defendant was interviewed on 10 July 2009 almost four months after the incident in question. At this time, it would appear that Mr Corak and the defendant were still living together or, at the least, were still very companionable. Mr Corak was present in the house at the time of the interview and at times was in the same room whilst the interview was being conducted. The interview, taken at face value, appears to contain admissions of potential significance to the prosecution case. However, it was conducted four months after the event and the overall impression to be gained from listening to and watching the defendant during the interview is that she had little recollection of events during the night in question,[15] that she was operating on the assumption that she must have been the perpetrator and as a consequence she was doing her best to reconstruct what she thinks must have occurred on the night in question. I will return to this issue after first identifying some of the salient aspects of the record of interview.
[15] She expressly states this a number of times.
She told the police during the interview that she could not remember very much about the night. She said this on a number of occasions. She said that it was the day of Shane’s birthday and that he came over in the morning with a friend, Josh. She gave him $100 so that he could go and buy some clothing for his birthday and told him to return with the receipt so that she could see how he had spent the money. He never returned. At the time, Shane was about 14. She then described her activities throughout the day in a way that broadly corresponded with the account given by Mr Corak, at least, until they fell asleep on the mattress after engaging in sexual intercourse.
She gave an account, on a number of occasions and in slightly different terms on each occasion, of what she believed to have been her involvement with the machete that evening. In essence, she said she was very worried about or frightened of the machete being in the house. She had trouble sleeping. It is her belief that she went into the bedroom, picked up one of the machetes and threw it outside through the front door leading from the lounge room. She said that she thinks she then went out and picked it up. She came back inside and might have tripped over the mattress upon which Mr Corak was sleeping. She thinks this might have been when he was struck by the machete. The next thing the defendant could recall is that the light went on and Mr Corak was standing with blood on his chest. She did not see his face, just his chest. She ran into the bathroom, put on some pants, pulled her dress up over her breasts because she had nothing on her top and ran off up the road. She went to the fire station. As I have said this is just a bare summary of the various different ways she stated, throughout the interview, what she believed to have been her involvement. It is to some degree a conflation of her various descriptions.
A number of times during the interview she mentioned thinking that all of this happened in a dream or that she was sleep walking or that she had her eyes shut for some reason, “I don’t know if I hit him with it or not, I really don’t know … having my eyes shut” – “but I can’t remember if I hit him, I just can’t remember whether I had my eyes shut or I was sleep walking”.
The defendant said to the police that a lot of violent people had been in and out of the house before the day of the incident, that she wanted to move house and that both she and Mr Corak had trouble sleeping in the house before the incident. She told the police that she had consumed alcohol that day but no drugs. She thinks she drank about six long neck full strength bottles of beer.
On a number of occasions during the interview the defendant referred to her attempts to “re-enact” what had happened on the night in question.
I’ve tried to re-enact this um what happened that night several times over in the house what I’ve done where I’ve walked so I’m trying to clear my mind of what happened that night so I’ve done a few re-enactments um where I remember going up to the end ah room and there was in the drawer I hide all the tools in that from the kids like the youths you know what I mean I don’t want to leave them out the back.
She said that she remembered getting one of the machetes out of the drawer “I don’t want them things they’re evil looking things you know in my house”. She said that she was scared that night of “some evil spirit in the house I reckon”. She denied having a fight with Mr Corak during the day or in the evening.
Late in the interview the defendant said that she kept the tools in the drawer in the bedroom “hiding them from Shane and that I don’t want him to fall on something like that and go you know”. She told the police that Shane had already spent a considerable period of time at Magill Training Centre and that she felt the need to hide things from him including any weapons. She could not remember if the windows and doors were locked on the night in question. She said that on the night in question she was detained and kept in hospital for about two weeks.
General Conclusions Concerning the Evidence of Mr Corak and the Record of Interview of the Defendant
I am satisfied that Mr Corak tried his best to assist the court. He bore no malice towards the defendant and at one stage told the court that he still was not convinced that it was she who had injured him. He had taken significant quantities of methadone and alcohol during the day in question and I recognise that his appreciation of events as they unfolded at the time and his later recollection of events must to some extent be unreliable, certainly, as to detail. Nevertheless, I accept Mr Corak’s account with respect to the matters he saw and heard from the time he lay down on the mattress at about 6 pm on the day in question.
As far as the defendant’s record of interview is concerned, I am not prepared to rely on the defendant’s statements to the effect that she went into the bedroom, picked up the machete from the drawer, threw it outside, retrieved it and, upon entering the lounge room where Mr Corak was sleeping, tripped over the mattress as, in effect, an admission that she somehow struck Mr Corak with the machete and caused the serious harm. I cannot exclude the possibility that she may have no real recollection of such matters but has engaged, over time, in a reconstruction of events in an effort to explain what she believes must have happened.
Nevertheless, the defendant’s record of interview does lend some corroboration to aspects of Mr Corak’s evidence, in particular, that the machete, used in the assault and found in the front yard by the police, was usually located in the chest of drawers in the main bedroom, that it was kept there to keep it out of harms way and that she and Mr Corak knew of its presence there. According to the defendant, the tools, including, I infer, the machete, were hidden in the drawer so as, inter alia, to hide them from Shane. In this respect, I note the evidence of Mr Corak that to his knowledge no-one other than himself, the defendant and, perhaps, his son Curt would have known of the location of the machete. The information provided by the defendant in her record of interview also lends some corroboration to Mr Corak’s evidence that when he woke up the second time, at which time he was bleeding (as he shortly afterwards realised), the defendant was standing inside the lounge room at or near the front door, clearly distressed at what she was looking at, after which she rushed outside and ran away.
Findings of Fact
Having reviewed the documentary evidence tendered in the prosecution case, the evidence of Mr Corak and after considering the record of interview given by the defendant, I am satisfied, beyond reasonable doubt, of the following matters:
(i)Mr Corak and the defendant drank a large quantity of beer during the day and both were intoxicated to a significant degree. Mr. Corak’s level of intoxication was exacerbated by the fact that he had also taken his prescribed methadone that day.
(ii)Whilst the two had argued during the day they made up or reconciled and engaged in consensual sexual intercourse at around about 6pm.
(iii)Mr. Corak then fell asleep on the mattress in the lounge room.
(iv)Mr Corak awoke some time later whilst it was still light and observed that the defendant was no longer in the lounge room. The front door was unlocked and the defendant’s house keys were in the usual place on the key rack.
(v)Mr. Corak formed the view that the defendant might be outside; she had a habit in the evening of feeding the ducks. He shut the front door but did not lock it and went back to sleep.
(vi)Some hours later, but before 11.30pm being the time the police were first contacted about the incident, Mr Corak awoke for a second time.
(vii)Mr Corak recognized the defendant standing inside near the front door with a horrified or terrified look on her face. He saw her run out the door and run off. Within seconds he realised that he was bleeding quite significantly and that he had suffered a serious injury to his face.
(viii)The defendant ran off through the front yard but first stopped momentarily while in the front yard and appeared to bend down.
(ix)In the front yard, near the water meter,[16] the police located a machete which contained a blood like substance containing DNA that matched that of Mr Corak.
(x)The machete usually was located in a drawer in a chest of in the main bedroom in the house and had been placed there, some one to two weeks prior to the incident, by Mr Corak with the knowledge of the defendant.
(xi)At the time Mr Corak fell asleep the second time, the front door was unlocked and he was uninjured.
[16] See exhibit P6.
Save for the qualifications expressed, the following additional matters are to be inferred, also beyond reasonable doubt. First, the injuries suffered by Mr Corak were caused by his being struck with the machete found in the front yard and which, until that evening, had been located in the chest of drawers in the main bedroom. Second, those injuries were caused some time between when Mr Corak fell asleep on the second occasion (when still light, perhaps as late as 8pm) and when he awoke to see the defendant staring at him with a terrified or horrified look on her face and occurred whilst he remained deeply asleep. Third, the injuries were caused by a person wielding the machete who either was already in the house at the time Mr Corak fell asleep the second time or who entered the house, probably through the front door, whilst Mr Corak was asleep the second time.
Ultimately, the facts that potentially implicate the defendant are that only she was in the house at the time Mr Corak first went to sleep on the mattress, that she knew where the machete was to be located in the main bedroom, that she was in the same room as Mr Corak immediately he awoke the second time in his injured and bleeding state, that she had a look of horror or fear on her face and that she immediately ran off not to be seen again by Mr Corak that night.
I place little weight on this last fact. It is also consistent with a concern expressed by the defendant, during her interview, that she was worried at the time that someone or perhaps an evil spirit might be inside the house. Further, having found, on balance, that the defendant was then suffering from an acute relapse of a schizoaffective disorder, I cannot exclude, as a reasonable possibility, that this might in some way explain the defendant’s conduct in a manner inconsistent with guilt.
Defence Case
In essence, the defence argued that the possibility of some other person coming into the house whilst the defendant was absent, knowing of the location of the machete or, whilst looking through the house, finding it and (in either case) taking the machete, attacking Mr Corak and leaving before the defendant found herself in the loungeroom with Mr Corak waking up, could not be excluded as a reasonable possibility on the evidence. In support of this contention, counsel, by way of submission, drew attention to a number of features of the evidence,[17] including the following:
(i)Counsel submitted that the court is unable to make a reliable finding about the “window of opportunity” given that Mr Corak apparently remained asleep during the attack and in the absence of expert evidence.
(ii)The prosecution has not adduced any evidence of motive other than the fact that the defendant and Mr Corak argued from time to time.
(iii)There is no forensic evidence before the court indicating the presence of the defendant’s DNA on the machete. In this respect a swab of the handle was taken which disclosed DNA, “insufficient for profiling”. However, even if a “match” for the defendant’s DNA had been found on the machete handle, this would not assist the prosecution. The defendant had plenty of opportunities to and most likely did, handle the machete prior to the night in question.
(iv)There was no forensic evidence showing blood having been located on the defendant’s person or clothing and there was evidence that she had washed[18] before she ran to the fire station. However, neither the defendant nor her clothing was forensically tested. Any conclusion in support of or against the defence case in this respect could only be based on speculation which is impermissible.
(v)The defendant did not attempt to put an exculpatory account during her interview – tripping whilst asleep could not seriously be considered as an explanation given the nature of the injuries. Rather, submitted counsel, the defendant’s response during the interview should be seen as speculation and reconstruction not based on any actual recollection.
(vi)The evidence of the defendant bending down in the front yard after she ran out the door is consistent with having seen the machete on the ground after it had been dropped by the true assailant.
(vii)Based on the evidence of the Fire Brigade officers, the defendant was horrified and appeared to be quite disturbed about what she had seen.
(viii)The court should not exclude, as a reasonable possibility, that the machete was not, in fact, in the drawer that night but readily observable somewhere else in the house. If so, the difficulty for the defence caused by any alternative perpetrator not having the esoteric knowledge of its location in the drawer would be obviated.
[17] Counsel’s final address at T 101 ff.
[18] Her hands were dirty.

I have had regard to the defence submissions generally including the matters summarised above. I accept the submissions referred to in (i) and (v) above. I have already discussed the issue raised in (v) and deal further with the issue raised in (i) later in these reasons. I do not find the matters in (iii) and (iv) to be of much assistance for the reasons already explained. As far as (vii) is concerned, I treat the evidence of the defendant’s behaviour and reactions at the Fire Station in the same way as I have treated the evidence of her flight, that is, as equivocal. I also consider the evidence referred to in (vi) above to be, at best, equivocal. At no time did Mr Corak see the defendant with anything in her hand. If she was the perpetrator she had already dropped or thrown the machete by the time Mr Corak awoke. Alternatively, he may have been mistaken in the first place, that is, it was in her possession as he awoke but she dropped it as she ran, bent down to pick it up but ran off again without re-gathering it. On the available evidence any enquiry, such as this, can only be based on speculation. The only finding available is that this evidence (the bending down) is consistent with someone else having been the perpetrator. However, it is not inconsistent with the defendant being the perpetrator. (In this later respect I remain conscious that the defence has no onus to establish anything).
Ordinarily, the absence of evidence of motive (point (ii) above) would carry considerable weight in support of the defence. However, in this case it is to be tempered by the evidence concerning the defendant’s psychiatric state at the time of the events. I am conscious of the fact that when considering the issue of mental capacity I made a finding that, at the time, the defendant was suffering from an acute relapse of a schizoaffective disorder only on the balance of probabilities. The question arises as to whether such a finding beyond reasonable doubt is open to me. I decline to make such a finding. In my view the psychiatric reports I have relied on in this respect do not permit me to go this far particularly given that neither Dr Raeside nor Dr Schirripa gave oral evidence or were cross-examined and given that I have not had the benefit of full submissions on this issue. However, the evidence of the defendant’s behaviour that night given by the defendant herself, Mr Corak and the Fire Brigade witnesses does demonstrate, beyond reasonable doubt, that the defendant, at the time, had a significant capacity to engage in irrational thinking and behaviour. I do not make and rely on this finding by way of propensity evidence, that is, in order, to infer that the defendant was the type of person who would attack someone with a machete. I rely on the finding to infer that the defendant was more than usually capable of behaving irrationally that night. In these circumstances, the fact that there was no evidence of any rational motive for the conduct should carry less weight than it otherwise would.
As far as point (viii) above is concerned, the evidence all points one way, that is, that the machete was, in fact, in the drawer. Whilst a finding to this effect beyond reasonable doubt may not be strictly necessary, I am so satisfied. In any event, if in fact the machete was somewhere else, this would lessen the coincidental nature of any alternative hypothesis hardly at all.
Other Possible Explanations
I turn to consider whether there are any other reasonably possible explanations for Mr Corak’s injuries consistent with innocence.
Self-mutilation may be seen as a conceivable possibility. However, there is nothing in the evidence that would cause me to consider this to be a reasonable possibility.
It is also conceivable that a person known or unknown to Mr. Corak entered the house through the unlocked front door (or by some other means) whilst Mr Corak was asleep the second time, who, whilst initially unaware of its location nevertheless found the machete, attacked Mr Corak whilst he remained asleep, exited the house through the front door or by some other means whilst Mr Corak remained asleep and disappeared before the defendant returned to the house or in some other way found herself standing inside the lounge room at the front door to observe Mr Corak waking up in his injured state. There is no evidence that anyone other than Mr Corak, the defendant and possibly Curt was aware of the presence of the machete in the drawer in the main bedroom. There is no evidence of robbery (indeed such evidence as bears on this possibility is to the contrary) and no evidence of any intrusion in the house other than the fact of the assault itself.
Whilst conceivable, I do not consider, on the evidence before me, this chain of coincidences to be a reasonable possibility. I am prepared to exclude this as a reasonable possibility even after accepting, based on the defendant’s interview, that she had experienced violent people in the house in the past. In this respect, Mr Corak had been living with the defendant for approximately four months and on his evidence, which I accept, he had not experienced any violence in the house of any nature let alone any directed towards him.
It is also conceivable that Curt, the son of both Mr Corak and the defendant perpetrated the act. On Mr Corak’s evidence, Curt may have known of the location of the machete. However, Curt lived elsewhere and there is no suggestion in the evidence that, at the time, he and his father had a particularly problematic relationship. In my view, to suggest that Curt might have been the perpetrator can only be based on speculation. There is nothing in the evidence before me which would lead me to accept, as a reasonable possibility, that Curt was the perpetrator.
I turn to consider the position of Shane. Shane was 14 years of age at the time and visited the house earlier in the day, with his friend Josh, because it was his birthday. He was given $100 to spend. He did not return to the house that day, at least not to the knowledge of either the defendant or Mr. Corak. The evidence of the defendant and Mr. Corak is to the effect that it is unlikely that Shane knew where the machete was kept. Neither was prepared to say that, to their knowledge, he knew of its location. I accept the position put by the defendant in her interview, that she was concerned to hide things from Shane and, in particular, the machete. Mr. Corak told the court that his relationship with Shane was of a limited nature, but he described it as “good”. However, in cross-examination he did concede that there had been an incident when Shane broke into the house and stole Mr. Corak’s phone. This made Mr Corak angry and he rang Shane and threatened him in some way. This occurred perhaps two or three weeks prior to the incident with the machete. I also accept, based on the defendant’s interview, that Shane, notwithstanding his age, had been in some reasonable amount of trouble with the police[19] and had spent a significant period or periods of time at the Magill Training Centre.
[19] Although, the nature of this trouble was not explored during the interview or otherwise in the evidence.
The Crown did not call Shane to give evidence. Given that the Crown’s obligation is to exclude all reasonable possibilities consistent with the innocence of the defendant, the court might have found it helpful to hear evidence from Shane and, in particular, for him to be cross-examined as to the nature of his relationship with Mr Corak, his own character, and his knowledge, if any, of the whereabouts of the machete. There is no evidence before the court to suggest that Shane was not available to be called. Notwithstanding this, the content of the evidence Shane would have given had he been called can only be a matter of speculation which I must not engage in. In the circumstances and particularly given that there is no evidence that Shane knew where the machete was, I do not accept it as a reasonable possibility that Shane was the perpetrator. In practical terms, Shane falls within the first category of persons referred to above, those known or unknown to Mr Corak and who were unaware of the location of the machete. The same sequence of coincidences, listed earlier would have to have taken place for Shane to have been the perpetrator.
The Crown put forward a submission, based on the blood spatter patterns in the house and the nature of Mr Corak’s injuries, to the effect that the attack on Mr Corak must have occurred within minutes of him waking up the second time and seeing the defendant in the room. It submitted that the window of opportunity for the attack to have occurred was not approximately four hours between about 8pm when Mr Corak first awoke and the second time he awoke but rather a matter of a few minutes immediately prior to his waking up and observing the defendant in the room. The Crown submitted that this was so notwithstanding the likelihood that Mr Corak must have been sleeping far more heavily than usual as a result of the methadone and alcohol consumed and that he did not actually wake up during the attack itself. The Crown relies on this submission to emphasise how coincidental and therefore unlikely it would be for anyone else including Shane or Curt to have committed the act within only minutes of the defendant returning to observe the aftermath.
It does seem likely, perhaps highly likely, that the attack occurred only a short time, perhaps minutes at most, prior to Mr Corak waking up. However, and particularly given the absence of expert evidence, I am not prepared to make this finding beyond reasonable doubt. Nevertheless, the chain of events that must have taken place had someone other than the defendant been the perpetrator (summarised above) remain of a very high order of coincidence whether or not the prosecution submission here were to be accepted.
Conclusion
The defendant has no onus to prove anything. The Crown bears the onus of proving, beyond reasonable doubt, that the accused was the perpetrator and, in so doing, it must exclude any other reasonable possibility consistent with innocence. No reasonable possibility consistent with innocence has come to my attention. Given the sequence of events, the proximity of the defendant both in space and time and the fact that she had the highly pertinent esoteric knowledge concerning the location of the machete, I am satisfied, beyond reasonable doubt, that the defendant wielded the machete and caused Mr Corak’s injuries.
I find the objective elements of the offence of causing serious harm with intent to cause serious harm proved. However, I find the defendant not guilty of the offence by reason of mental incompetence.
I made a declaration pursuant to s269FB(3) of the Act that the defendant is liable to supervision under Part 8A of the Act. I will hear the parties as to further steps to be taken pursuant to s269O of the Act.