R v Rowen
[2021] VSC 347
•17 June 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2020 0127
| THE QUEEN | Crown |
| v | |
| EDWARD ALAN ROWEN | Accused |
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JUDGE: | Taylor J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 15-17 March 2021 |
DATE OF JUDGMENT: | 17 June 2021 |
CASE MAY BE CITED AS: | R v Rowen |
MEDIUM NEUTRAL CITATION: | [2021] VSC 347 |
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CRIMINAL LAW –Whether accused unfit to stand trial – Question determined under Part 11 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) by judge alone – Evidence of neuropsychologist and clinical psychologist as to likely Alzheimer’s dementia – Joint submission by prosecution and defence that accused is unfit – Accused is unfit to be tried – Accused not likely to become fit to be tried in the next 12 months - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ss 6, 91, 92, 93, 94, 95.
CRIMINAL LAW – Special hearing – Hearing conducted under Part 11 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) by judge alone – Accused 84 years of age – Accused charged with murder – Accused attacked wife with wooden statue to the skull - Accused made immediate and spontaneous admissions - Accused committed the offence of murder - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ss 17, 100, 101, 102, 103, 104, 105.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D Glynn | Office of Public Prosecutions |
| For the Accused | Mr T Marsh | McFarlane Criminal Lawyers |
HER HONOUR:
The accused, Edward Rowen, is charged with the murder of his wife, Rosalie Loris Rowen.
On 25 December 2019 the accused struck his wife to the head at least 10 times with a solid wooden elephant statue as she was sitting in a lounge chair in their home. The deceased died of the resulting injuries at the Royal Melbourne Hospital at 3.45am on 26 December 2019.
The accused was arrested at the scene and taken into custody.
There was a ‘real and substantial question’[1] as to his fitness to stand trial.
[1]Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (‘Act’), s 9(1).
Unfitness to stand trial
On 15 March 2021 I conducted an investigation into his fitness to stand trial pursuant to s 93 of the Act. At the conclusion of that hearing, I ruled that the accused was unfit to stand trial[2] and was not likely to become fit within the next 12 months.[3] In so finding, I indicated that I would later publish my reasons. These are those reasons.
[2]Act, s 94(b).
[3]Act, s 93(5)(a).
On 29 April 2020 the accused was assessed by Martin Jackson, a neuropsychologist, at the request of his legal representatives. In his report dated 11 May 2020, Mr Jackson detailed the results of the neuropsychological tests he administered, noting inter alia that the accused had profound impairment to his verbal and perceptual skills, executive skills in the ‘extremely low’ range and also exhibited severe perseveration.[4]
[4]That is the continuation or repetition of a thought or idea irrespective of the verbal stimulus.
In Mr Jackson’s opinion, the accused most likely suffers from a frontal or behavioural variant of Alzheimer’s disease, a condition which is permanent and deteriorating.
In addressing the issue of unfitness to stand trial, Mr Jackson found that the accused met all criteria delineated in s 6 of the Act.
The accused was also twice assessed by Mr Chris Drake, a clinical psychologist, on behalf of the prosecution. The first assessment took place on 18 September 2020. The second on 12 March 2021. Mr Drake agreed with Mr Jackson that the most likely diagnosis was of some form of Alzheimer’s dementia. Mr Drake noted that at the time of the second assessment, the accused’s presentation had deteriorated, which was ‘likely consistent with the expected course of his likely dementing illness’.[5]
[5]Second report of Mr Chris Drake, dated 12 March 2021, 3.
In addressing the issue of unfitness to stand trial, Mr Drake found that the accused met all s 6 criteria but for his ability to understand the nature of the charge.
Each expert was called and gave evidence in accordance with his report(s). In cross examination, Mr Drake stated that with respect to the accused’s ability to understand the nature of the charge, he did not inquire about the mental element, so that ‘there still might be questions about that’.[6] The prosecution did not cross-examine Mr Jackson.
[6]Transcript, 15 March 2021, 14.
At the end of the evidence both counsel submitted that I should find on the balance of probabilities that the mental processes of the accused are profoundly disordered or impaired and he is unfit to be tried on (nearly) all of the statutory criteria of fitness. And, further, I should find that the accused was not likely to become fit within the next 12 months due to the progressive and degenerative nature of his illness.
On the basis of the unanimous expert evidence those submissions are plainly correct.
Special Hearing
At the conclusion of the fitness investigation the Court was required to hold a special hearing as soon as practicable.[7] I invited counsel to make submissions pursuant to s 101 of the Act. That section allows the Court to order that the special hearing be conducted by judge alone, without a jury. Both counsel submitted that the interests of justice[8] would be served by such order.
[7]Act, s 95(6).
[8]Act, s 101(1)(b). The charge is murder in Victoria contrary to common law, thereby also satisfying s 101(1)(a).
On 15 March 2021 I ordered the special hearing be conducted by judge alone noting that the strong public interest as well as the interests of the accused and his family would be best served by timely resolution, the evidence in the case was amenable to that course and there were no countervailing factors.
The special hearing was conducted on 16 and 17 March 2021.
Crown Opening
The Crown gave a truncated version of the filed written opening.
In December 2019 the accused was aged 83 and the deceased 71. They had been married since 1963. The had four adult children. They had lived, alone, at their address, 48 Melbourne Road, Creswick since 1 February 2018.
On Christmas Day the accused and deceased were visited by two of their adult daughters, a son-in-law and two grandchildren. The visitors left in the early afternoon. At about 5 pm the accused and deceased were collected by their grandson and taken to the property of their daughter and son-in-law for another Christmas function. Both other adult daughters, with the husband and child of one of them were also in attendance.
An outside table was laid with food. Alcoholic drinks were in a fridge in the shed. The deceased did not consume alcohol at all. The accused did not drink regularly, but when he did he tended to drink to the point where he was significantly affected. Over the time he was in attendance, the accused consumed about four or five stubbies of mid-strength beer.
At some point, the accused found some alcoholic jelly shots. They had been made with vodka in individual shot glasses by one of the grandchildren the day before. Several family members told the accused that they were very alcoholic and he should not consume them. He did not accept that advice and had about three. The accused then went to get another jelly shot from the fridge. The deceased stood and told him to stop. The accused responded by striking or pushing her. The adult daughters of the accused intervened.
The deceased and accused left to go home at about 7.45pm, again driven by their grandson. Before leaving the gathering the accused told one of his daughters ‘don’t come anywhere near the house again. Just piss off.’
At some time between 8.20pm and 9.45pm the accused attacked the deceased from behind with a solid wooden elephant statue. He struck multiple blows to the head. At the time the deceased was seated in her ‘usual’ chair in the lounge room.
The accused then went to the street, calling for help. He also attempted to wave down passing cars. One car stopped further up the road and its occupant, Miles Tait, walked back to the scene. In the meantime, neighbours who had heard noise came outside to see the accused standing in the middle of the road. The accused told them that he thought he had killed his wife.
The neighbours went into the accused’s home and found the deceased sitting on the floor slumped against a wall. She was alive but not conscious. Those present rendered what assistance they could. Mr Tait, who also went into the house, called 000.
First Constable Jason Allison (who was working alone) was the first police member to arrive. He approached the accused outside of the house who said ‘I’ve killed her, you can take me in, I’ll do 20 years’. When asked why he had done it, the accused replied ‘rage’. The accused was then handcuffed and cautioned. First Constable Allison sought immediate ambulance attendance and more police assistance.
Mr Tate and Jordan Peters, one of the neighbours, was asked by First Constable Allison to hold onto the accused while he went inside. The accused told them that he had been at a party where there were tubes of alcohol. He had had three of them and become drunk. He said that his wife had disagreed with him, he had flown into a rage and grabbed an elephant statue and hit her about 20 times while she yelled at him to stop.
Upon the arrival of further police units, the accused was seated in the back of a police car. His conversations with three police officers were recorded by body worn cameras. In these conversations he made further admissions as to killing his wife.
The accused was taken to Ballarat police station. At 9.45am on 26 December 2019 he was found unfit for interview. He had dried blood on his hands, but no visible injuries. There were also areas of blood staining on his clothing and shoes.
The deceased was taken by air ambulance to Royal Melbourne Hospital. She died at 3.45am on 26 December.
The cause of death was determined at post mortem examination on 27 December to be blunt force head injuries.
Defence response
In his defence response Mr Marsh indicated that he did not propose to pursue a defence of mental impairment. He said that given the limited capacity of the accused to provide meaningful instructions and the recorded admissions at the scene there was limited scope to challenge the prosecution case.
Nonetheless, Mr Marsh referred to the burden upon the prosecution to prove that the accused committed the offence beyond reasonable doubt.
The evidence
The prosecution tendered a booklet of autopsy photographs[9] and a separate booklet of crime scene photographs.[10]
[9]Exhibit P1.
[10]Exhibit P2.
Prosecution case
Dr Glengarry
The first witness was the pathologist, Dr Joanna Glengarry.
After giving her qualifications, Dr Glengarry stated that she conducted an autopsy on the body of the deceased on 27 December 2019. She said that photographs were taken during the procedure.
Dr Glengarry then detailed her findings. She said that she observed blunt force injuries to the face and head, particularly bruises of the face mouth and neck, but also bruises to the arms and legs.
In detail these observations were of:
(a) Lacerations to the scalp, the right ear, the face and the arms;
(b) Diffuse subgaleal bruising, which is bruising beneath the soft tissues of the scalp;
(c) Right sided facial fractures in particular to the right side of the zygoma;
(d) Complex depressed or indented skull fractures of the right temporal region;
(e) Complex skull base fractures of the middle cranial fossa, being the bottom of the skull upon which the brain sits;
(f) Linear fractures, looking like lines to the occiput parietal bones and posterior cranial fossa, that is towards the back of the head;
(g) Right sided dural lacerations with bridging vein rupture. The dura is the fibrous covering that sits over the brain, the laceration is a tear within that and the bridging veins are what drain the blood from the brain to the dura;
(h) Acute subdural haemorrhage, being fresh bleeding across the surface of the brain;
(i) Cerebral fracture lacerations and subarachnoid haemorrhage, being bleeding across the brain surface with tears to the surface of the brain caused by skull fracture fragments impacting the brain; and
(j) Multiple cerebral cortical contusions, being bruises to the surface of the brain.
Dr Glengarry also observed rib fractures, a sternal fracture and a right pneumothorax, being air collecting around the right lung. She attributed these injuries as recognised consequences of resuscitation. Minor natural disease in the form of minor inflammation of the thyroid and mild atheroma, being cholesterol hardening of the aorta, were also observed.
Injuries to other parts of the deceased’s body were also detailed by Dr Glengarry. These were bruises to the sides and back of the neck, both arms and both legs. There were also lacerations to the left arm and hand.
Dr Glengarry stated her opinion that the cause of death was blunt force head injuries. She said that the injuries to the face and head were the most significant injuries contributing to death. The lacerations to the head were concentrated to the right side followed by the back and then round the face. The left side was relatively spared but still injured. She had not counted the lacerations but there were over 20.
Dr Glengarry then explained the injuries further by reference to Exhibit P1, the booklet of autopsy photographs. In doing so she noted that the right ear[11] was nearly transected or split in half by the impact to the area.
[11]Photographs 119 and 120 of Exhibit P1.
Dr Glengarry then gave evidence as to the import of the injuries to the deceased’s hands. She said that they could have resulted from the deceased’s attempt to ward off an impact from a weapon, but they are non-specific and other possibilities of causation exist. Tears are common to the backs of the hands and arms in the elderly, usually as a result of falling or stumbling, but she favoured the notion that laceration to the little finger was caused by impact to that area.
When asked about the minimum number of blows necessary to cause the injuries to the deceased, Dr Glengarry gave the figure of ten as a conservative estimate. She said that was subject to a number of caveats in so far as multiple blows to one area may cause a single injury and a single blow may cause multiple injuries. In arriving at that estimate, Dr Glengarry said that she clustered the injuries together. That process was described on a diagram.[12] She said that there were ten different planes of impact. When asked about the accused’s own estimate of hitting his wife 20 times, Dr Glengarry said that she could not disprove 20 impacts.
[12]Exhibit P3.
When asked to estimate the amount of force required to produce the observed injuries, Dr Glengarry said that there were a number of variables including how heavy the weapon was and how fast it was swung. She said that given that the scalp sustained multiple full thickness lacerations and not just bruising, the complexity of the fractures, the laceration and bruising of the brain and the tears to the dura, which is a firm substance, her opinion was that the force was severe.
Dr Glengarry was shown photographs 63 and 65 in Exhibit P2, both of which depict a wooden elephant. The former shows it to be a very contoured object with multiple planes and edges. The latter shows it laid out against horizontal and vertical rulers. It is approximately 18 cm wide. Its height is not readily calculable.
Dr Glengarry called it ‘an entirely plausible implement’ to have caused the observed injuries. The lacerations were complex and irregular. The elephant statue is complex and irregular with sharper areas, such as the ears and feet, which would account for the more clean-cut lacerations.
In cross-examination, Dr Glengarry was asked about her documentation of injuries on ten planes. She agreed that if a skull was resting on an unyielding surface, such as a wooden floor or the arm of a wooden chair, an impact to one side of the skull could cause a corresponding impact to the other. She was then shown photograph 199 of Exhibit P2, being a photograph of the lounge room of the Creswick home depicting a lounge suite comprising a two-seater sofa and two single arm chairs, all with wooden arms, arranged on an exposed wooden floor. Extensive bloodstaining can be seen on one chair, the wall and the floor. Dr Glengarry agreed that if the deceased was assaulted while her head was on the floor or on the arm of the chair, multiple injuries could have resulted from a single blow.
When asked if that caused her to revise her estimate of ten blows being the minimum number to have caused the observable injuries, Dr Glengarry said that the better phrase was ten impacts. She said that when looking at the impacts to the right side of the head there was very little corresponding injury to the left side. The lacerations to the back of the head and face are from the impact of a weapon, not impact against a wall or hard wooden floor. They are too complex to have been caused by the flat part of the arm of the chair.
Dr Glengarry stated that she had been very conservative in her estimations, particularly around the injuries to the right ear, which would be surprising if caused by only one impact. While estimating the number of impacts is always problematic, she stood by ten impacts given that they were on different planes. The number of blows may be more or less, but would probably come out about the same number given the sheer number and complexity of the injuries.
Dr Glengarry was then asked if the elephant statue was capable of causing injuries in multiple sites from a single blow, given its shape and complexity. She agreed and said that she had tried to take that into account with her calculations.
As to the estimation of severe force used to inflict the observed injuries, Dr Glengarry agreed that her use of that term was in accordance with a common adjectival scale of mild, moderate and severe.
Dr Glengarry said that she was not able to determine the order in which the injuries occurred, but potentially any impact, including the first, would have been capable of causing a loss of consciousness.
In re-examination, Dr Glengarry was asked to look at photographs 106 and 133 of Exhibit P1. The former depicts lacerations to the forehead of the deceased. The latter depicts lacerations to the back of the head. She was then asked to give her opinion as to the likelihood that any of those injuries could have been caused by the head impacting upon a hard surface while it was struck from the opposite side with the elephant. Dr Glengarry said that would be very unusual for the lacerations to the back of the head to have been caused in that manner given their irregularity and complexity. The same opinion was expressed with respect to the injuries to the right forehead. The bruising to the eyelids could be the result of internal head injuries rather than impact to that area. However, the bruising to the right cheek and next to the right eye and, perhaps, the injuries to the left forehead could have been caused in that manner.
Catherine Boyd
Ms Boyd is the eldest child of the accused and deceased. She said that at Christmas 2019 one of her sisters, Susan Pratt was living with her husband and children in Mitchell Park, another sister, Jane Rowan, was visiting from Tasmania and her brother, Thomas, was in Adelaide. Her parents had moved to 48 Creswick Road on 1 February 2018.
When asked to describe her father’s relationship with alcohol, Ms Boyd said he would drink socially which made him quite grumpy the following day.
Ms Boyd said she did not attend the Christmas lunch at her parent’s house, but did attend the family get together at Ms Pratt’s Mitchell Park property. At the time there was a large shed and a house under construction. The weather was good and chairs were placed outside. About 12 people were present. The deceased and accused arrived at about 5 pm after their grandson, Joel Pratt, picked them up.
The evening progressed with everyone chatting and drinking. The deceased handed out Christmas cards. Ms Boyd described her father as appearing grumpy. She saw him drinking beer, but could not say how many he had. She was not concerned by his drinking, but was concerned that he had not eaten any food.
Ms Boyd said that the young ones were consuming jelly shots, which were in the fridge with the beer. Ashley Pratt had made them in plastic shot glasses. She said that they had vodka and were apparently quite strong. They were of various colours, including red. She said that her two sisters and mother tried to stop the accused having any, but he got quite angry with them as he said he didn’t believe there was alcohol in them. The deceased crushed one in the accused’s hand in an effort to stop him consuming it. The deceased said they were being silly and raised his arm like he was going to hit someone, but then was told by Peter Pratt to go and sit down. The accused then asked for another beer. Mr Pratt told him he would get one later. Ms Boyd said that the deceased and accused left just before 8pm. As they were leaving their daughter Jane asked her mother if she would be alright and the accused snapped at her, telling her angrily that he didn’t want to see her again. Ms Boyd said that it would have taken about 15 minutes for them to reach their home.
When asked about the lounge room in her parent’s house, Ms Boyd said that her mother had a favourite chair, being the single chair with a Bulldogs cushion. That chair was the one closest to the kitchen bench.
In cross-examination, Ms Boyd agreed that her father had a sweet tooth and was motivated by desserts. She said that she believed that her father did not understand that the jelly was not merely dessert, but also had alcohol in it. She did not think that her father would have been familiar with the concept of a jelly shot.
Ms Boyd said that at the time her parents left the gathering, there was anger from her father towards her sister Jane, but she was not aware of any tension between the deceased and accused.
Rebecca Pascoe
Ms Pascoe said that during the evening of Christmas Day 2019 she was at home in Melbourne Road, Creswick with her partner James Peters, his brothers Alex Peters, Jordan Peters and Nathan Polkie as well as his mother, Karen Vag, and father, Rod Peters. When Ms Vag went to bed, the music was turned off. Alex Peters said that he could hear an old man yelling outside. In response Ms Pascoe, together with Rod Peters, Jordan Peters, Alex Peters and James Peters went outside.
There Ms Pascoe saw an elderly man in the middle of the road. He came up to and hugged her and said ‘you need to help me’. She asked what was wrong. He kept repeating ‘ you need to help me’. The man then said that he had hit his wife across the head and thought he had killed her. Ms Pascoe asked where she was. He said that she was inside and pointed towards a house. Ms Pascoe then asked James Peters to call 000.
Ms Pascoe then entered the house. When she got to the lounge room and kitchen area, she saw a wooden elephant or rhinoceros on the bench covered in blood and hair. She then saw the deceased sitting on the ground against the wall. She was bleeding from the head and in a puddle of blood. Rod Peters applied pressure with a towel and told Ms Pascoe to go and get another. Ms Pascoe then held the towel against the deceased’s head. As she was doing so, she noticed that he deceased was breathing and her eyes were open, but she was not responsive to any questions and did not squeeze Ms Pascoe’s hand when asked to. The deceased tried to get up at one point, but Ms Pascoe told her to sit still and wait for help. Ms Pascoe continued to give assistance until the police and ambulance arrived. When they did, she was given permission to move the couch so that she could sit next to the deceased and hold her head.
In cross-examination Ms Pascoe said that at the time she encountered the old man in the street he was not aggressive and seemed ‘a little bit oh my God what’s happening’.[13]
[13]Transcript, 16 March 2021, 70.
When asked about the level of the deceased’s responsiveness, Ms Pascoe said that when the elderly man walked in and asked if she was going to be okay, the deceased squeezed her hand a little.
Ms Pascoe was not re-examined.
Miles Tait
Mr Tait said that shortly before 10 pm he was driving along Melbourne Road in Creswick with his wife. He saw an elderly man in the middle of the road, calling for help and flagging down cars. He seemed distressed. Mr Tait drove past and pulled over about 50 metres later. Mr Tait was unsure what to do and called his parents for advice. As a result, he called 000 and walked back towards the scene. As he approached a teenager there said to call 000.
Mr Tait had to try and explain what was going on. As he was doing so, another teenager walked out of the house and said that he had hit her and they needed the police. Mr Tait told the operator that police were required. He was asked about the condition of the woman. He entered the room and saw a man and teenage girl attending to the injured lady, who was slumped against the wall on the floor. There was blood everywhere.
As he was talking to the operator, it became apparent to him or her that there was already an ‘active ticket’ on the job from another 000 call, so the call was ended and Mr Tait went outside leaving the teenaged girl and man to tend to the deceased.
There he saw the elderly man still trying to flag down cars outside his house. Mr Tait and another teenaged boy got him off the road. The man said ‘just leave me out there. I’ve killed her’. He said that he had been drinking small bottles of spirits. He said ‘I flew into a rage and I’ve calmed down’.
The man then tried to re-enter the house. The man who was there chased him out. Mr Tait went to check on his wife who was waiting in their parked car, then walked back to the scene as police arrived. The police officer handcuffed the man and said to Mr Tait and the teenaged boy ‘hold him. If he tries to run, yell for me’. The policeman then went inside. The man said that they’d hang him for what he’d done. Mr Tait told him that they didn’t do that anymore. The man asked if he had a gun and said to shoot him. Mr Tait then said that the man rambled about drinking earlier and being furious at the ladies for telling him not to drink. When he got home he was still mad about it, so he wanted to drink some more. When his wife started to pester him about his behaviour he flew into a rage and grabbed the elephant and started hitting her. The man said she was screaming for him to stop and was bleeding, but he kept hitting her. He said he must have hit her 20 times until she stopped crying.
Shortly after that conversation, more police officers arrived and took custody of the man.
In cross-examination, Mr Tait was asked who had first told him that there had been an assault. He said it was one of the teenaged boys, who had come outside saying something like ‘he’s fucking killed her’. He agreed that he told the 000 operator ‘it appears he has used a mallet to bludgeon her, a blunt instrument’ and that was information he was told by one of the teens, but not the girl. Mr Tait said that he thought the girl said that there was hair all over it. Mr Tait said that he never saw a mallet during the time he was in the house.
Senior Constable Paul Allison
SC Paul Allison said that at the time of the incident, he was a First Constable of police. He was the only officer on duty in Creswick on 25 December 2019. On that day he received a call at about 9.55 pm to attend 48 Melbourne Road. Upon arrival neighbours pointed to the deceased near the front door. When the deceased spoke it was clear that he was admitting to a crime. By reference to his body camera footage, SC Allison said that the accused said something like ‘I’ve killed her. I’ve hit her in the head and she’s dead’.
SC Allison immediately handcuffed him and started to caution the deceased, who himself continued to speak. He then took the accused with him inside the house. When he saw the wounds to the deceased, and that she was being given assistance by the neighbours, SC Allison took the accused out of the address and asked the neighbours to hold him and to call for him if they had any issues.
SC Allison then went back inside and attempted to help the deceased using information given to him by telephone from Ambulance Victoria. The deceased was sitting on the floor. Towels were being held to her head. She was alive and breathing.
About 13 minutes later other police members arrived from Ballarat. Acting Sergeant Newman took command of the scene and SC Allison undertook duties as directed. Ambulance Victoria came and they called for an air ambulance. SC Allison went and met the helicopter at the landing site and escorted the paramedics to the scene and back again.
An excerpt of the footage from SC Allison’s body worn camera of his conversation was played and tendered.[14]
[14]Exhibit P4.
In cross-examination SC Allison said that he was trained in first aid and was answering the questions asked of him by Ambulance Victoria whilst undertaking an assessment of the deceased’s state of consciousness. At no time whilst attending to the deceased did SC Allison form the view that she had regained consciousness.
Senior Constable Peter Halliday
SC Halliday said he was on duty with his partner at Ballarat during the night of Christmas Day 2019. He heard the Creswick job over police communications then sought and obtained permission to attend. He arrived in Melbourne Road at about 10.14 pm.
SC Halliday instructed his partner to set up a crime scene and approached (then) FC Allison who told him that the accused had been cautioned and placed under arrest. SC Halliday took custody of the accused and placed him the rear seat of a police car, facing out. SC Halliday then had a conversation with the accused to confirm his name.
Shortly thereafter Acting Sergeant Newman arrived and took command of the scene. A/Sgt Newman had a conversation with the accused in the presence of SC Halliday, which was recorded on his body worn camera. A portion of that footage was played to the Court and tendered[15] as was a portion of the footage from the body worn camera of A/Sgt Newman.[16]
[15]Exhibit P5.
[16]Exhibit P6.
SC Halliday then remained with the accused for approximately an hour before a divisional van arrived to take him to the Ballarat Police Station. During that time the accused again said that he had hit his wife 20 times with the elephant.
SC Halliday was not cross-examined.
Acting Sergeant Ryan Newman
On 25 December 2019 A/Sgt Newman was attached to the Daylesford police station and became aware at about 10 pm via police communications of the job in Creswick. As patrol supervisor he started to co-ordinate resources and went to the scene himself with his partner, arriving at about 10.15pm.
A/Sgt Newman first spoke with SC Halliday, who was with the accused at the rear of a police car. He then had a conversation with the accused, which was captured by his body worn camera. The footage was later downloaded and used by A/Sgt Newman to compile his statement as to what was said by whom during that conversation. He said that the conversation was as follows:
A/ Sgt Newman Who is inside that has been hurt?
Accused My wife.
A/ Sgt Newman How has she been hurt?
Accused With an elephant.
A/ Sgt Newman What’s that?
Accused Oh it’s a little black toy and it’s solid.
A/ Sgt Newman Why did you do that to her?
Accused I’d done it, she was screaming at me.
A/ Sgt Newman Why?
Accused I don’t know – I don’t know and I was quite happy to be drunk and all of a sudden I picked it up and I hit her about 20 times to stop her.
A/ Sgt Newman Right.
Accused I got out in the street and realised what I’ve done. Nobody would stop for nearly half an hour.
A/ Sgt Newman Were you trying to kill your wife?
Accused Yes, I told her I would.
A/ Sgt Newman You were trying to kill your wife by hitting her with it?
Accused Yeah, I hit her about 20 times and it’s very solid.
A/ Sgt Newman Where did you hit her?
Accused On the head.
A/ Sgt Newman Where abouts on the head?
Accused Just like on the head, that she was sitting down, I just lost my cool and that’s it.
A/ Sgt Newman said that the deceased then asked him to put a rope around his neck and it would be all over. A/ Sgt Newman then told the deceased he was under arrest for attempted murder to which he said ‘I’ve been trying to’. After being cautioned and having his rights explained, the accused said ‘it doesn’t matter, I’d done it’.
After that A/ Sgt Newman spoke with other police members and went inside the house. He described the scene as ‘violent’ with a lot of blood spatter and observed the deceased being attended to by paramedics and police. A/ Sgt Newman was then told that Ambulance Victoria had requested an air ambulance and directed SC Allison to meet the helicopter and escort the members to the scene.
Whilst in the house A/ Sgt Newman noticed the weapon described to him by the accused. There was an elephant on the kitchen benchtop. He made arrangements for it to be secured. The crime scene was photographed and witnesses were spoken to.
Just before the accused was taken from the scene, he asked A/ Sgt Newman if his wife had died and whether she would live. The accused said ‘I wish she died.’ He continued to say that he wish she’d die in peace because she had been hit 20 times on the head with a ‘heavy, heavy’ object.
In cross-examination A/ Sgt Newman was shown photograph 26 of Exhibit P2 and asked if the chair with the Bulldogs cushion was in that position when he first attended the scene. A/ Sgt Newman was unsure, stating that it was moved by the paramedics at some stage. He was then shown photograph 199 depicting furniture put back into a position. A/ Sgt Newman said that that was not how the room looked when the paramedics were in attendance.
A/ Sgt Newman was shown photograph 58 depicting a view into the kitchen with the elephant visible on the black marble bench. He said he was not sure if that was where the elephant was when he first saw it, but that he did not move it and everyone else was told not to touch it. He did look at it closely and observed blood.
In re-examination A/ Sgt Newman was shown photograph 37 from Exhibit P2, which depicts the kitchen bench from the doorway into the living room. He confirmed that the position of the elephant on the counter in that photograph was where he had first observed it.
Detective Senior Constable Abbey Justin
Detective Senior Constable Abbey Justin, the informant, stated that by the time she attended the scene in Melbourne Road, Creswick in the early hours of 26 December 2019, the deceased had been taken by air ambulance and the accused had been removed to the Ballarat police station. Her supervisor had arranged for Major Crime Scene members to examine and photograph the scene. DSC Justin was shown the photographs in Exhibit P2 and explained the image in each of them.
She said that the accused was not formally interviewed after a forensic medical officer deemed him unfit. He was photographed. He had no physical injuries.
In cross-examination DSC Justin said that the accused’s clothing was not subject to any forensic analysis. She confirmed that he has no prior criminal history nor were there any reports to police of family violence between him and the deceased.
DSC Justin was not re-examined.
Defence case
The defence did not call evidence.
Submissions
Prosecution
Mr Glynn submitted that I should be satisfied beyond reasonable doubt that the accused committed the offence of murder. He then addressed each element of the crime.
Referring first to what he termed the ‘background matters’, the prosecutor noted that the accused was alone in the house with the deceased at the time of the offence, he had been irrationally angry earlier in the day and may have been intoxicated. But, the principal evidence was the admissions of the accused himself at the scene to every single person he spoke to in the immediate aftermath of the attack.
The admissions to Rebecca Pascoe, SC Jason Allison, Miles Tait, SC Halliday and A/ Sgt Newman, summarised above, were canvassed. Mr Glynn submitted that the admissions are clear. They are highly reliable, both because they were offered spontaneously a very short time after the event but also because they are consistent with all other evidence. With respect to the latter, Mr Glynn referred to his comments about the ‘little red things’ made by his granddaughter being consistent with the evidence that Ashley Pratt made the jelly shots, some of which were red, his statement to Mr Tait that he got angry with the ladies being consistent with what Catherine Boyd said about what occurred at the family gathering and his statement that he hit his wife 20 times being consistent with the autopsy findings.
Mr Glynn next submitted that the injuries inflicted by the elephant were plainly the cause of the deceased’s death.
Turning to the issue of intention, Mr Glynn submitted that the element was proven by the accused’s admissions and also his conduct. His direct admission to the A/ Sgt Newman’s question ‘were you trying to kill your wife?’ was ‘yes. I told her I would. I hit her about 20 times and it’s very, very solid’. Mr Glynn also referred to ‘implied admissions’ by the accused at the scene. These were that he told everyone that he had killed his wife and to Miles Tait that he continued to hit her until she stopped crying. It was submitted that the sheer number of blows coupled with the belief that by the end of the attack the accused believed he had killed the deceased was evidence of his intention. Mr Glynn also said that the accused’s belief that he would be shot or hanged for what he had done was an admission to murder ‘or a serious crime.’ Mr Glynn expressly disavowed any reliance on these ‘implied admissions’ as incriminating conduct.
The accused’s conduct in raining blows of severe force onto the head of a defenceless woman with a solid object was said to prove the element.
Finally, Mr Glynn submitted that no issue of lawful excuse could arise on the evidence.
Defence
Mr Marsh conceded that the circumstantial case as to identity and intention was strong.
Nonetheless he submitted that I should exercise caution in assessing the reliability of the admissions made by the accused at the scene given his age and apparent level of distress. Similarly, I should be sceptical of accepting that the accused struck 20 blows as his use of that number might simply be short-hand for saying ‘a number’. But Mr Marsh conceded, given the number and severity of injuries, that the deceased suffered a very serious assault on an unusually vulnerable part of her person. Accordingly, the blows – however many there were – ‘speak to no intention other than to cause a very serious injury’.
Mr Marsh submitted that the event remains ‘an inexplicable crime’ and that the prior argument over the jelly shots would be ‘a bizarre and outlandish motivation’ for the accused’s actions after decades of marriage. In that regard, I should consider the previous good character of the accused.
The defence submissions concluded by emphasising that the special hearing process, by either judge and jury or judge alone, is a solemn and serious task conducted as nearly as possible as though it were a criminal trial.
Analysis
Legal considerations
The three findings available to a jury at a special hearing pursuant to s 17(1) of the Act are available to a judge at a special hearing by judge alone.[17] They are that the accused is not guilty of the offence charged,[18] is not guilty of the offence charged because of mental impairment[19] or that the accused committed the offence charged or an offence available as an alternative.[20] A finding made by a judge under s 17(1) has, for all purposes, the same effect as if it had been made by a jury.[21]
[17]The Act, s 103(1).
[18]The Act, s 17(1)(a).
[19]The Act, s 17(1)(b).
[20]The Act, s 17(1)(c).
[21]The Act, s 103(3).
The question of whether the defence of mental impairment is established must be determined by the judge on the balance of probabilities.[22] In this case there is no evidence that would support a verdict of not guilty by reason of mental impairment.[23]
[22]The Act, s 106.
[23]The Queen v Langley [2008] VSCA 81, [38]-[39] per Lasry AJA.
To find that the accused committed the offence charged or an alternative offence, the judge must reach satisfaction beyond reasonable doubt on the evidence available.[24]
[24]The Act, s 103(2).
The judgment following a judge alone special hearing must include the principles of law applied by the judge and the facts on which the judge relied.[25] Further, s 4A of the Jury Directions Act 2015 (‘JDA’) applies.[26] Thus the Court’s reasoning with respect to any matter to which Parts 4, 5, 6 or 7 of the JDA[27] makes provision must be consistent with how a jury would be directed and must not accept, rely on or adopt a statement, suggestion or direction that the JDA prohibits a trial judge from making.[28]
[25]The Act, s 104.
[26]The Act, s 108.
[27]That is with respect to Evidential directions, Sexual offences, Family violence and General directions respectively.
[28]JDA, s 4A(2).
In this matter I apply the following.
Presumption of innocence, burden and standard of proof
The accused has the presumption of innocence. He is to be regarded as innocent of the charge of murder unless and until the prosecution has proved that he committed that offence beyond reasonable doubt. The burden of proving that charge lies wholly on the prosecution.
Elements of Murder
The elements which the prosecution must prove beyond reasonable doubt to establish murder are:
1. The accused committed the act or acts which caused the victim’s death.
2. The accused committed that act or acts voluntarily.
3. The accused committed that act or acts while intending to kill someone or cause them really serious injury.
4. The accused did not have lawful justification or excuse for those acts.
Manslaughter is an alternative offence to murder.[29] Given the decision I have reached in this matter, I need not consider its elements.
[29]Crimes Act 1958 (Vic), section 421(1)(a).
Circumstantial Evidence
As this is a judge alone special hearing, I note that I must find the facts and draw the inferences from them and then apply the law to the facts that I find. I do so as a purely intellectual exercise based on the evidence in the hearing, reinforced by my common sense and experience.
As the case relies in part upon circumstantial evidence, I note that to find the accused committed the offence, that conclusion must not only be a reasonable inference but the only reasonable inference drawn from the circumstances established by the evidence.
In determining whether an inference is reasonable, I must consider the evidence as a whole. Such an inference can be drawn from a combination of facts, none of which viewed alone would support that inference.
Further, if there is any reasonable explanation of those circumstances which is consistent with the innocence of the accused, I must find the accused not guilty.
Admissions
Before I may accept the evidence of the accused’s admissions, I must be satisfied that he actually made the alleged admissions and that they were truthful. I must also consider that the evidence of the admissions may be unreliable.
Motive
The Crown does not have to prove the accused had a motive to kill his wife in order to prove its case. But an absence of motive is a consideration to be taken into account in his favour when weighing all of the evidence.
Good Character
In this case, the accused is a person of good character. He has no criminal record and there have never been reports to police of prior family violence. This is relevant to the likelihood he committed the offence charged, but cannot alter proven facts.
Factual considerations
I turn to a consideration of the elements of the offence.
Did the accused do the act(s) that caused the death of the deceased?
I am satisfied beyond reasonable doubt that the accused caused the blunt force trauma to the deceased.
In so finding I draw on a combination of the following facts and inferences. The accused admitted doing so in the immediate aftermath of the attack. I find those admissions to be reliable. The accused’s level of distress at the time is explicable by the situation. He made spontaneous admissions to five different people, both civilians and police members. I find Ms Pascoe and Mr Tait to have been honest and reliable witnesses and their evidence was not challenged.[30] Further, a number of the admissions to police are recorded. I have re-watched that footage and am satisfied that the admissions the accused made to FC Halliday and A/g Sgt Newman were in the terms as given in evidence by those witnesses. The accused said in plain terms that he killed his wife by attacking her with the wooden elephant.
[30]To the extent that Miles Tait was asked about a mallet, being the weapon he was told about at the scene by another man present, I consider it likely that either he misheard the other man or the other man had misheard the accused say the word ‘elephant’ and thought that the word ‘mallet’ had been said instead. The words sound similar when said aloud, the word ‘elephant’ is not usually associated with a type of weapon and the accused has a marked Irish accent.
Further, the circumstantial evidence enhances the reliability of the admissions. The accused had been alone in the house with his wife immediately prior to the attack. The elephant was found in the kitchen with (what appeared to be) blood staining and hair. The accused had blood stains on his hands, clothing and shoes. He had been irrationally angry and probably intoxicated from the jelly shots earlier in the day. His description of hitting his wife 20 times with the elephant is consistent with the extent and nature of injuries described by Dr Glengarry. She died from the blunt force trauma.
Were the act(s) of the accused voluntary?
I am satisfied beyond reasonable doubt that the actions of the accused were voluntary. He admitted that they were. And he aimed multiple blows of severe force to the skull of his wife with a solid wooden statue.
Did the accused have murderous intent?
I am satisfied beyond reasonable doubt that at the time the accused struck the fatal blows he intended to kill or do really serious injury.
While I accept the submission made by Mr Marsh that the accused’s repeated statement that he had hit his wife 20 times is evidence only that there were many blows, I unequivocally accept the evidence of Dr Glengarry that there were impacts to the skull on ten planes. The attack was sustained and required severe force. The weapon was apparently heavy. That the accused appreciated that fact is evident from what he told police. And, the accused admitted that he intended to kill his wife.
Lawful justification?
There was no lawful justification or excuse for the accused to kill the deceased.
Finding
It follows that I am satisfied beyond reasonable doubt that the accused committed the offence of murder.
That finding means that I must declare that the accused is liable to supervision under Part 5 or order him to be released unconditionally.[31] I will hear the parties on this matter.
[31]The Act, s 105.