R v Russell Norman Field

[2011] ACTSC 35

R v RUSSELL NORMAN FIELD
[2011] ACTSC 35 (8 March 2011)

CRIMINAL LAW – trial by judge alone – double murder – self-defence – whether the accused believed that his actions were necessary in order to defend himself – whether the degree of force used was necessary for self-protection – objective reasonableness of the response to be assessed against the existence of a threat which calls for that response – prosecution did not rebut reasonable hypothesis that the accused acted in self-defence – verdict of not guilty entered

Supreme Court Act 1933 (ACT), s 68C
Crimes Act 1900 (ACT), s 12, 13, 15, 49
Criminal Code 2002 (ACT), s42

Zecevic v DPP (Vic) (1987) 162 CLR 645

R v O’Meara [2009] ACTSC 122 (18 September 2009)
Lukatela v Apostoloff [2009] ACTSC 167 (17 December 2009)

No. SCC 441 of 2009

Judge:             Higgins CJ
Supreme Court of the ACT

Date:              8 March 2011

IN THE SUPREME COURT OF THE     )
  )          No. SCC 441 of 2009
AUSTRALIAN CAPITAL TERRITORY           )          

R

v

RUSSELL NORMAN FIELD

ORDER

Judge:  Higgins CJ
Date:  8 March 2011
Place:  Canberra

THE COURT ORDERS THAT:

1. A verdict of not guilty be entered with respect of count 1.

1. A verdict of not guilty be entered with respect of count 2.

1. The accused, Russell Norman Field is charged with two counts of murder, namely:

FIRST COUNT	... THAT on the 24th day of March 2009 at Canberra in the Australian Capital Territory Russell Norman Field murdered Richard John Roberts.
SECOND COUNT	AND FURTHER THAT on the 24th day of March 2009 at Canberra the aforesaid Russell Norman Field murdered Gregory Peter Carrigan.

1. On 17 February 2010 the accused elected for trial by judge alone.  He has entered a plea of not guilty to each count.

1. For the purposes of this trial, which commenced on 20 September 2010, I must assume the role of the jury as well as that of trial judge.

1. The procedure is governed by s 68C of the Supreme Court Act 1933 (ACT):

(1)A judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and any such finding has, for all purposes, the same effect as a verdict of a jury.

(2)The judgment in criminal proceedings tried by a judge alone shall include the principles of law applied by the judge and the findings of fact on which the judge relied.

(3)In criminal proceedings tried by a judge alone, if a Territory law would otherwise require a warning to be given to a jury in such proceedings, the judge shall take the warning into account in considering his or her verdict.

1. I remind myself of the principles governing a criminal trial.

1. The Crown assumes the heavy burden of proving each element of the alleged offences to the criminal standard, that is, beyond reasonable doubt.

1. The accused, whether he offers an answer to the accusations or not, bears no onus of proof, disproof or persuasion.  That remains so throughout the trial.

1. He is entitled to a presumption of innocence.  That is not only a general entitlement but applies to any invitation to draw an adverse inference from the evidence.  That should not be done unless a favourable or less adverse inference is not reasonably open or has been excluded by the evidence.

1. The crime of murder is proscribed by s 12 of the Crimes Act 1900 (ACT) (the Crimes Act):

(1) A person commits murder if he or she causes the death of another person—

(a)intending to cause the death of any person; or

(b) with reckless indifference to the probability of causing the death of any person.

(2)A person who commits murder is guilty of an offence punishable, on conviction, by imprisonment for life.

1. From 14 December 2009 the above section was amended by adding a third intent as a further alternative, namely:

   (c)intending to cause serious harm to any person.

2. “Serious harm” is defined in the Criminal Code 2002 (ACT) (the Criminal Code) as:

... any harm (including the cumulative effect of more than 1 harm) that –

(a)endangers or is likely to endanger human life; or

(b)is, or is likely to be, significant and longstanding.

1. Those amendments do not apply to the present trial.

1. Section 49 of the Crimes Act provides that in the case of murder, a jury may find proved an alternative offence, namely, manslaughter.

1. Section 15 provides:

(1)Except if a law expressly provides otherwise, an unlawful homicide that is not, under section 12, murder shall be taken to be manslaughter.

(2)A person who commits manslaughter is guilty of an offence punishable, on conviction, by imprisonment for 20 years.

1. Under s 42 of the Criminal Code homicide, whether murder or manslaughter, may be excused if committed in self-defence. Further, under s 13 of the Crimes Act, an act which otherwise would be murder is excused if it occurred under provocation.  However, in that case, a verdict of guilty of manslaughter is to be returned (s 13(1)).

1. Provocation is defined in s 13(2) of the Crimes Act:

... an act or omission causing death shall be taken to have occurred under provocation if—

(a)the act or omission was the result of the accused’s loss of self-control induced by any conduct of the deceased (including grossly insulting words or gestures) towards or affecting the accused; and

(b) the conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self-control—

(i) as to have formed an intent to kill the deceased; or

(ii) as to be recklessly indifferent to the probability of causing the deceased’s death;

whether that conduct of the deceased occurred immediately before the act or omission causing death or at any previous time.

1. There is no rule of law that provocation is negatived if (see s 13(4)):

(a) there was not a reasonable proportion between the act or omission causing death and the conduct of the deceased that induced the act or omission; or

(b) the act or omission causing death did not occur suddenly; or

(c) the act or omission causing death occurred with any intent to take life or inflict grievous bodily harm.

1. The prosecution, if provocation is raised upon the evidence, bears the onus of proving, beyond reasonable doubt, that the relevant act or omission did not occur under provocation.

1. For self-defence to excuse homicide, the issue is whether the accused believed on reasonable grounds that it was necessary for him to use force to avert a threat of death or of proportionately serious injury (see Zecevic v DPP (Vic) (1987) 162 CLR 645) and that it was reasonable for him so to believe in the circumstances as he reasonably perceived them to be.

1. The prosecution bears the onus of excluding self-defence beyond a reasonable doubt.

1. The Crown case was outlined by Mr Doig in the following terms:

... in the afternoon of 24 March 2009 the accused, Russell Norman Field, was in the garage of [address 1], together with [Witness 2].  The accused was living in the garage at that time.

[Witness 2] answered a knock at the door and saw there were two men standing side by side outside the door.  [Witness 2] recognised one of the two to be someone he knew as Greg.  This person asked if “Russ” was there and [Witness 2] told them that he would get him.

[Witness 2] told the accused that Greg and a Reb were at the door, and the accused said words to the effect of, “Get the fuck out the back and hide, bro.”  [Witness 2] then ran through the backyard of the premises until he reached a shed at the rear of the garden.  As he was running to the shed he heard a loud bang, which sounded to him like a gunshot.  A short time later he heard what he took to be a second shot.  This sound was fainter than the earlier loud bang.

At about 3.15 in the afternoon of the same day, police received a telephone call reporting that a man was in possession of a rifle in Couchman Crescent, Chisholm.  The caller also reported that they’d heard what appeared to be two gunshots, and they’d seen a man running into number [address 1].

As a result of the telephone call, police attended and saw the body of a man lying in the street outside [address 2].  That body was later identified as being Richard John Roberts.

The prosecution case, your Honour, is that the accused shot Richard John Roberts in the street near [address 2].  It will be alleged that he used a 12 gauge double barrel shotgun to kill Richard John Roberts.  That shotgun was subsequently located by police, as is later discussed.

Your Honour, police went to [address 1] and they located [Witness 2] in the rear of the yard of the premises.

A second body, subsequently identified as being Gregory Peter Carrigan, was located on the ground near a wall close to the rear garage door at [address 1].  That body had been covered with a plastic sheet and several pieces of timber.  The prosecution case is that the accused shot Gregory Peter Carrigan near to where he was subsequently found by police, and that he used a 12 gauge double barrel shotgun, referred to later, to kill him.

At about 3.47 in the afternoon of the same day, the accused approached police to give them his name, and advised them that he lived at [address 1].  He was prevented from entering the street, and he sat on a bus stop in Heagney Crescent about 50 or so metres from the intersection with Couchman Crescent.

At about 4.20 pm the same day, police cautioned the accused and placed him under arrest.  At that time Detective Senior Constable Richard Gough cautioned him and asked him a series of question.  Those questions and his answers were written down.  The following conversation ensued:  Detective Senior Constable Gough:  “Have you shot anyone today?”  The accused: “No.”  Detective Senior Constable Gough: “Have you touched a firearm today?” 

The accused said, “I will be honest with you, I shot two people.”  Detective Senior Constable Gough: “Where is the gun now?”  The accused: “In the garage.”   The accused was then placed in an unmarked police vehicle and taken to the Tuggeranong Police Station where he participated in a taped record of interview.  That interview was conducted by Detective Sergeant Hall O’Meagher and Detective Senior Constable Richard Gough.  During the course of that interview, the accused told police, at answer and question 138:

I’ve reached down and grabbed my keys, opened up the cabinet and pulled out the firearm and just aimed blindly towards the door.  I wasn’t – there wasn’t any – there wasn’t any aim or nothing, it was just blindly like whack.  And the next thing I know this man has dropped like – this guy has dropped in front of me.  And this isn’t a word of a lie, he – he sort of – he was down.

The prosecution say that this person was Gregory Peter Carrigan.  The accused further told police, in the same answer:

I was then chased out the front and I was – I was sort of backing off like a little bit.  And he has, like – and then I have, I said, ‘I can’t do this.  I can’t do this.’  And then I started running down the street with my fire-  with my shotgun, turned around and this ripped guy was just probably from about maybe me – yeah, me to you away and I just turned around and I just – I – I didn’t even look.  I just – I turned around and just went – I didn’t even think.  I didn’t calculate, I didn’t do anything.  I was just – I was – I was being put – I was being threatened.  My life was so damned threatened and somehow before I knew it there was this guy down in the street. 

The prosecution say that this person was Richard John Roberts.  In the same interview the accused told police that after he shot Gregory Peter Carrigan and Richard John Roberts he returned to [address 1] where he chucked a sheet on Gregory Peter Carrigan and then he moved the cars that belonged to the two deceased from outside [address 1].  On further questioning he told police that he used a “plastic tarp sort of stuff” to cover Gregory Peter Carrigan

In his interview with police the accused ... was asked about the two males.  He told police in answer to question 137:

I went outside for a second then basically we’ve turned around and there was two Rebels, what as far as I know was, Rebels one of which I thought was, um, whatshisname, Rick.  What’s the big guy, the one you mentioned first?  Rick.  I – I know him because he has come to our house before and hassled us.  He has threatened mum many times, the kids have been attacked and this is an ongoing thing and yes he was one of the leaders.

In answer to 154 the accused said:

I’m pretty sure that’s Greg.  That must have been [Witness 3]’s ex-husband because she is, this bird you don’t understand.  She’s kept contact with her ex-husbands and somehow plays them off.  Like this new boyfriend would have to go directly off to – you know what I mean.  She’s obviously playing people off or those guys that had been sent by her.  You know what I mean?  By to, by that lady.

The accused told police that that lady was the woman that he’d been in a relationship with which had broken up over a year ago.

On the evening of 24 March 2009 that woman, who’s witness number 3 on the witness list, spoke with police at the Woden Police Station.  She told police that Richard John Roberts was her current partner and that Gregory Peter Carrigan was her ex-partner.  She also told police that she at one time had been in a relationship with the accused.

Further, in his interview with police the accused told officers that, in answer to question 159:

One of the first things as the guys approached the garage was “We’ve got a fucking list here and everything is coming on that list.”  So someone has obviously given her a list - given them a list of things and on that one thing was things like tools, like drop-saw, or like I told the owner that’s my tools, I need my bloody tools.

In answer to 165:

The last confrontation they came around and threatened when we broke up with her and then they stole my car.  I used to have a VT Commodore but see we, like, we tried going to the police and all this with these things but once the Rebels came to the house and said if you say anything to anyone we’re going to kill the family.

Both deceased were the subject of an autopsy carried out by Paul Bedford from the Victorian Institute of Forensic Medicine.  He determined that the cause of death for Gregory Peter Carrigan was gunshot injury to the face, neck, exsanguination. 

In his report Dr Bedford made the following comments:

(1)  There was extensive damage to the left side of the face due to a gunshot injury.  Damage includes injury to the major vessels of the left side of the neck which could have led to extensive blood loss and death.  It is noted that there is extensive fracturing of the left mandible.  No significant injury to the brain from the gunshot has been identified.

(2)  A roughly circular defect to the left hand shows features consistent with an entry wound on the palmar aspect and exit on dorsal aspect.  The hand is therefore acting as an intermediate target before fragments continue on to the head.  The single defect with blackening of the edges of the wound is suggestive of close range of the muzzle of the shotgun to the hand.  Projectile fragments were then spread in a difficult to define way on exiting the hand, the features of those of a defensive manoeuvre.

In his autopsy report relating to Richard John Roberts, Dr Bedford determined the cause of death to be gunshot injury to the head.  He then made the following comments:

(1)  The deceased died due to a gunshot injury to the head.  Wounds to the right side of the face indicate multiple entrance sights consistent with a distant range injury from a shotgun.  The spread of entry wounds and lack of stippling on the skin surface are consistent with a distant range pattern from a shotgun.

(2)  Injuries include haemorrhage in the brain plus fragments of bone of the right cheek and the base of the skull.  It is likely there’s been extensive blood loss due to damage to the major vessels in the right side of the neck.

(3)  Further injuries to the body include fractures to the left side of the face, fractured ribs anteriorly and multiple abrasions to the front of the body.  These abrasions are noted over the face, shoulders, abdomen, arms, knees, fingers and toes.  This complex of injuries is consistent with the ...(indistinct)... whilst being dragged underneath a vehicle.  The finds at the scene also indicate that he was not standing at the time these injuries occurred.

(4)  The gunshot wound to the head is deemed to be fatal hence it is believed that the victim was dead or in the process of dying at the time of the involvement with the motor vehicle.

Police conducted an extensive investigation of the incident.  During that investigation police located a 12 gauge Bonito brand model A680 double barrel shotgun inside the garage at number [address 1].  The gunshot was found to be loaded with two 12 gauge Winchester 00SG size gunshot cartridges.  This shotgun was examined by the firearms identification armoury team of the Australian Federal Police. 

Forensic firearm examiner Christiaan Pieterse concluded that the shotgun had all of its tested internal and external safety mechanisms functioning correctly.  He noted that the weapon could not be fired unless it was loaded with live cartridges and the trigger pulled.  Furthermore, he stated that the firearm’s designed to be discharged while the butt stock is firmly supported by the shooter’s shoulder.  Moreover before the weapon can be discharged the safety switch has to be manually moved forwards.

At the same time as the shotgun was located in the garage two, 12 gauge Winchester brand 00SG size fired shot cases were found on the floor.  On the top of the three-drawer cabinet in the garage, Firearm Examiner Pieterse, located a black metal box which contained a 12 gauge Winchester brand ammunition box and a Highland brand .308 ammunition box.  On the floor of the garage he also located at bandolier containing a number of shotgun cartridges.

The forensic investigation of the area around the garage ascertained that there was damage to a Colorbond fence that was consistent with the impact of a spread of pellets from a shotgun.  It was determined that the damage was consistent with a shot being fired from an area located outside near the rear door of the garage.  Between the south wall of the garage and the Colorbond fence two portions of impact-damaged shotgun unitising wad were found.  Those portions of wad were consistent with being 12 gauge and one bore markings indicating that it was a Winchester brand.

The prosecution case is that the damage to the Colorbond fence and the warding was from the 12 gauge shotgun used by the accused to kill Gregory Peter Carrigan.  It is the prosecution case that he fired shot cases which were located on the floor of the garage, that the fired shot cases were fired by the accused from a 12 gauge double barrel shotgun also located on the garage floor and that they were the projectiles that caused the death of Richard John Robertson and Gregory Peter Carrigan.

A forensic examination was also carried out of the area around number [address 2].  That investigation determined that there were pellet ricochet and impact marks at that location and the cause of those marks was a firearm being discharged in the roadway in front of number [address 2] in a north eastern direction towards the front of the premises.  It’s the prosecution case that those marks were caused when the accused fired the 12 gauge double barrel shotgun to shoot and kill Richard John Roberts.

At about 4.40 pm on 24 March 2009 the accused was in the rear of a police vehicle when he participated in a taped record of conversation.  That interview was conducted in the presence of Detective Sergeant Elias Petropolous, Constable Kyle Williams, Detective Senior Constable Brad McEwan and Detective Senior Constable Richard Gough.  During that interview the accused was asked question, “Right, where is the firearm?”  The accused told police, “In the garage.”  He was then asked question 9, “What sort of firearm is it mate?” The accused replied, “It’s a sawn off 12 gauge.”

The prosecution say that the shotgun referred to by the accused was the 12 gauge Boito brand model A680 double barrel shotgun located inside the garage at number [address 1].

In the later interview conducted at the Tuggeranong Police Station the accused advised police that he had owned the weapon for over a year, that he’d used it for going after goats or kangaroos and the furthest he’d shot a roo or goat with that shotgun was probably maybe say 30 metres.

When the firearm was examined by the firearms identification armoury team of the Australian Federal Police, the barrels of the weapon were measured and discovered to be 20 inches in length rather than 30 inches.

Eric Mervyn Davies, the team leader of the firearms identification armoury team, after conducting his investigations, concluded that (1) the late Greg Carrigan was shot through the left hand and a number of pellets from this shot travelled through to strike him to the left side of the face area; (2) the late Richard Roberts was shot in the face from a distance of not less than 1 metre and not greater than 2 metres.

Mr Davies used the following to arrive at his conclusions:  Concerning Gregory Peter Carrigan, Gregory Peter Carrigan had a shotgun gunshot wound to the left palm between the webbing of the thumb and forefinger, exiting out of the rear of this area of his hand.  A number of pellets had then struck the left side of his face and three of those pellets have travelled downwards through his body and exited.  Mr Davies noted that the pattern of the shotgun pellets on the face could not be used to accurately determine the distance at which the muzzle of the shotgun was discharged.  The reason for this inability was because the flight of the pellets was interfered with because of the first passing through the hand.

Concerning Richard John Roberts.  Richard John Roberts had the plastic wad from a shotgun cartridge covered from the largest of the entry wounds on his face.  Mr Davies used the recovered weapon and ammunition as well as ammunition of the same brand and shot size to conduct a number of test firings.  As a result of these test firings, Mr Davies noted the pellets of shot and shot shell wad that struck Richard John Roberts would discharge from a distance of not less than 1 metre and not greater than 2 metres.

Mojca Keglovic, senior forensic biologist with the Australian Federal Police, conducted an examination of the shot gun located by police inside the garage at number [address 1].  That examination located blood from Gregory Peter Carrigan on the surface of the trigger area, and also located blood from Richard John Roberts, 1 to 2 centimetres inside the left barrel.

She concluded that the weapon may have been discharged at close range to Richard John Roberts, but it was not possible to determine the specific distance.

Ms Keglovic also examined the scene outside number [address 2] where Richard John Roberts was located. She concluded that after Richard John Roberts had been shot, he lay stationary on the road surface for a period of time before he was either pushed or dragged to his final resting position.  The blood staining observed on the road surface was consistent with a vehicle being driven through the blood that had pooled there.

It is the prosecution case that after the accused had shot and killed Richard John Roberts, he then drove the motor vehicles belonging to Richard John Roberts and Gregory Peter Carrigan along Couchman Crescent, away from the scene.  One or both of those vehicles passed through the pool of blood on the road surface and came into contact with the lifeless body of Richard John Roberts.

1. It was conceded by Mr Purnell SC, for the accused, that the accused caused the deaths of the deceased men in the manner described.  The Crown case was that the shootings were deliberate, at close range, and without the excuse of self-defence.

1. Mr Purnell contended that the case was one of self-defence, that the accused believed that had he not shot the deceased, he would have been killed by them.

1. The prosecution rested its case upon s 12(1)(b) of the Crimes Act, that is, on a deliberate act committed “with reckless indifference to the probability of causing the death of any person”.

1. Neither side raised the issue of provocation.  I need consider it only if self-defence fails.

The evidence

1. The drama commenced with a call to police at about 3.15 pm on 24 March 2009.

1. Detective Sergeant O’Meagher, in response, arrived at Heagney and Couchman Crescent in Chisholm at about 4.20 pm.  Other police were already present and the accused was being spoken to at a nearby bus stop.

1. The body of Richard Roberts had been located on the roadway of Couchman Crescent.  The body of Gregory Carrigan had been located in the rear yard of [address 1].  The precise details and measurements are contained in Exhibit 2.

1. That address had, as part of its premises, a garage with a roller door to its front.  The garage was attached to the house.  There was also an ordinary door on the rear wall of the garage but no internal access was provided between the house and the garage.

1. A white Commodore ute belonging to Richard Roberts and a Ford Integra belonging to Gregory Carrigan were located some distance away.  They had been moved by the accused from a location nearer to the accused’s premises after the shootings.

1. In the garage, which the accused used as his living quarters, was a gun safe.  A shotgun was also seized from the premises.  It has been described as a “sawn-off shotgun”.  That, it must be emphasised, is incorrect.  It has a 20 inch barrel.  The usual length of a shotgun barrel is 30 inches.  However, that is how the weapon was manufactured.  It is a weapon designed for hunting, such as pig hunting, a pursuit the accused had purchased it for.  Thus, it has a shorter barrel length than was standard.

1. No other weapons were located either upon the premises or on the persons of either deceased or in their vehicles.

1. Coincidentally, CCTV footage of Bunnings Warehouse at Tuggeranong revealed the accused and Witness 2 were there at about 12.30 to 12.40 pm on 24 March 2009 and, though not in proximity, also Richard Roberts, between 12.30 and 1.00 pm.  The accused and Richard Roberts did not make contact or appear to observe each other.

1. Detective Sergeant O’Meagher also tendered a lengthy record of conversation and interview with the accused.

1. Detective Sergeant O’Meagher acknowledged that the Rebels Motorcycle Club (the Rebels) to which Mr Roberts had belonged, had been associated with criminal activity involving drug distribution and possession of weapons such as guns and knives.  Mr Roberts was known to be a “senior member” of the Rebels and had a history of violence, including time spent in prison for such offending behaviour.

1. Witness 3 was next.  She had known both the deceased and the accused.

1. She had known Mr Carrigan since 1993 and met Richard Roberts in 2008.  She had met the accused in 2007 and had remained friends with him until October 2008.  She had been in a defacto relationship with Mr Carrigan up until 2005.  They had bought a house in Chisholm together.  They remained friends although their relationship had ceased.  Around April 2006 she had been in a relationship with another member of the Rebels for about a year. 

1. Witness 3 said that despite his strong and threatening appearance, Mr Roberts, during their relationship, had some health problems with his feet and his breathing.

1. A friendship developed between the two deceased as a result of their association with Witness 3.  It had been decided between Mr Carrigan and Witness 3 that they would renovate and sell the house at Chisholm, the tenants having moved out.

1. That process was being undertaken by the two deceased as at the time of their deaths.

1. On 24 March 2009, the deceased had been intending to continue the renovation work.

1. There was a conversation between Mr Carrigan and Witness 3 about tools.  Mr Carrigan had had a laser drop saw.  He had last used it some time before and had left it at the home of the accused’s mother.  This was, apparently, about the time the accused and Witness 3 were in a relationship.

1. Mr Carrigan asked Witness 3 if she could go to the accused’s mother’s house to get it.  She refused and suggested that Mr Carrigan make that arrangement.

1. At the time she met the accused, Witness 3 was in a relationship with another Rebels member that was not going well.  She took some possessions, including a television to the accused’s house for safe keeping apparently receiving them from the possession of that other Rebels member.

1. Thereafter the accused moved in with her at her house in Chisholm.

1. She stated that she and the accused bought a car together, a Club Sports Commodore.  They paid half each, she said, though it was registered in her name.  She claimed further that the relationship deteriorated when “Russell became violent”.

1. Thereafter, she had discussions with the accused and his mother “about getting the car back”.  She attended at the accused’s mother’s home with her friend Witness 11 and her husband, Witness 10.  Witness 10 was and is a Rebels member.  Those persons are not to be otherwise identified.

1. The accused was not present.  They spoke to his mother.  After a mix up with the keys, Witness 3 took the Club Sports Commodore and a television.  Although she denied using “harsh words”, she acknowledged that all the women present, except Witness 11, were in tears.  The accused’s sister and brother were also present.

1. In cross-examination it was apparent, though she denied it, that her relationship with Mr Carrigan had been violent, though she put it down to him being “unwell” at the time.

1. She had told the accused, she conceded, of Mr Carrigan’s violent behaviour and that she was then frightened of him.  She claimed to be unaware of Mr Robert’s history of violence and of convictions for drug offences and acts of violence, though she was aware he had been in gaol.  Nevertheless, she conceded that she told police that Mr Roberts had told her that he had been violent in the past.

1. Whilst she denied that she had used her contacts with the Rebels to solve personal problems it was apparent to me that she had set up situations where, for example, Mr Roberts had been motivated to take action with respect to another Rebel member who had allegedly assaulted her.  There had been, before she had met Mr Roberts, a situation of confrontation between her and that Rebel member.  Mr Roberts took it upon himself to “sort” that out.

1. This dynamic has, it seems to me, some relevance to the events which occurred on 24 March 2009.  Witness 3 may have, she conceded, claimed to both deceased that the accused had “ripped [her] off blind for everything that [she] had”.  That was, at best, a gross exaggeration.

1. She had told both deceased, she conceded, that the accused had assaulted her.  She denied that she told them that the accused owed her money for a cannabis crop of hers that went missing or for the Club Sports Commodore.  I have to say I do not believe her denials.

1. It is clear that Witness 3 suggested that the deceased collect the drop saw from the accused.  I have no doubt that that was their primary motivation for visiting the accused on 24 March 2009 and it is that which caused the perception Witness 3 deposed to, that some members of the Rebels believed her to have been the cause of Mr Robert’s death.  She also believed, according to her police statement, that Mr Roberts was hostile towards the accused because of what she had told him had been the accused’s behaviour towards her.

1. It is clear to me that Witness 3 was aware that, on 24 March 2009, the deceased had gone to the accused’s address to collect the drop saw.  There was, as she must have known, also the risk that they would take the opportunity to menace or threaten the accused by reason of their perception that he had illtreated Witness 3.

1. Of particular relevance is the prior event, some months before when Rebels member, Witness 10, visited the accused’s mother’s house with Witness 3 and Witness 11 to obtain what Witness 3 claimed to be her possessions and the satisfaction of her claims.  She certainly, in her interview with police, appeared to accept that Mr Roberts had the power, if he had chosen to exercise it, to have the accused bashed, or even killed.

1. In October 2008 when she rang the accused’s mother to enforce her demands she was with Witness 10 who, she conceded, grabbed her phone and yelled angrily at the accused’s mother.  Part of that angry exchange was an expression, by Witness 10, of indignation at the manner in which the accused had treated Witness 3.  It may be added that, far from being a naive young person, Witness 3 was more than 20 years the senior of the accused.  Indeed, I consider that she cynically seduced and exploited a relatively naive young man.

1. It was suggested to Witness 3 that Witness 10 put her demands, in that phone call, in the following terms:

Tell your fucking son to get that fucking furniture, the cannabis plants, the TV, the keys to the Commodore and $30,000 to [Witness 3]’s house by 4 o’clock today.

1. Witness 3 claimed to be unaware of that conversation.  I did not believe her denial.

1. At the accused’s mother’s house, the accused not being present having fled in a state of fear and anxiety, it was suggested that Witness 10 had threatened that the accused would “cop it” if he “touches another woman” and that if the accused “goes near [Witness 3] or her house he’ll be killed”.

1. Witness 3 denied that, again falsely I believe, but conceded that the accused’s mother was persuaded by whatever was said to pay her $2,500 to satisfy at least part of her claims for recompense.

1. It was apparent to me that Witness 3 was an unreliable witness.  I am sure that she was untruthfully rejecting suggestions made to her by Mr Purnell.  The manner in which she gave her evidence was manifestly unpersuasive.  Those suggestions were supported by subsequent evidence.

1. The accused’s sister next gave evidence.  She gave evidence that in October 2008, after the accused broke up with Witness 3 and moved into the garage, he had hurriedly left as someone was coming to collect some “stuff”.  That preceded, I infer, the visit by Witness 3, Witness 10 and Witness 11.

1. She recalled Witness 3 arrived with a woman and a large man with tattoos.  I accept the latter two were Witness 10 and Witness 11.  The man yelled at the accused’s mother, swearing a lot.  He gave the impression that he was going to be physically violent.  This description, in my estimation, is both accurate and truthful and supports my impression of the falsity of Witness 3’s evidence to the contrary.

1. The accused’s brother also gave evidence.  He witnessed the confrontation between his mother and Witness 10 and Witness 3.  He confirmed that his mother was very frightened and shaking.  His recollection of part of the conversation was of his mother saying that she would give them what she could.  His brother had fled the house earlier in a frightened and nervous state.  I accept that this witness was also truthful.

1. The accused’s mother was next.  She gave more details of the confrontation with Witness 10 and Witness 3.  She added a detail that when Witness 10 made the threat about the accused being killed, he cocked his finger as if it was a gun and pointed it at her.  She later told the accused of that threat.

1. Prior to 24 March 2009, about three weeks before, she felt she was being stalked by a person in a red four-wheel drive.  The description of the driver was consistent with that of the deceased, Richard Roberts.  I do not need to be sure that Mr Roberts was stalking the witness or engaging in some surveillance of the accused’s mother’s house.  It does, however, emphasise the atmosphere of dread and menace that the accused, having been told of this, would have been experiencing.

1. She attested that Witness 10, when speaking to her on the telephone that he took from Witness 3, made a demand that she:

Tell your fucking son to get that fucking furniture, the cannabis plants, the TV, the keys to the Commodore and $30,000 to [Witness 3]’s house by 4 o’clock that day (sic).

1. She was aware, by way of context, that Witness 3 had alleged that the accused had stolen cannabis plants that she had been cultivating.  She said she had seen a hydroponic plantation at Witness 3’s home.  The accused had denied that he had stolen any of Witness 3’s plants.  The accused’s mother told Witness 10 this but he replied:

I don’t care.  ... All I want is that $30,000 and he can go to Kings Cross and get it up the arse.

1. The accused was fearful when told of these threats and comments.  He took some cannabis plants of his own and some furniture and took them to Witness 3’s house in the hope of satisfying her demands.  He did not take the Club Sports Commodore as the keys could not be located.  The television mentioned was placed by the accused’s mother in the boot of her car and she gave it to Witness 3 when she arrived with Witness 10 and Witness 11.

1. The keys to the Club Sports Commodore, she said, were located in Witness 3’s handbag.  That seems consistent with Witness 10’s evidence.

1. The man, Witness 10, she reiterated, reinforced his threat by cocking his finger at her as if it was a gun and added, “The next time we come back, we are going to kill him him”.  Witness 3 said to her repeatedly, “It’s out of my hands”.  That, the accused’s mother believed, was a reference to Witness 3 handing her demands to the Rebels to enforce.

1. The accused’s mother was, a little later, contacted again by Witness 3 and then agreed to pay her $2,500 to leave them alone.

1. Before coming to Witness 10’s evidence I will refer to the forensic evidence as to the firearm and the shootings.

1. That evidence was unchallenged.  It established that Mr Corrigan was shot at or close to the doorway of the accused’s room, in the garage, and fell outside it.  He had been facing in the direction of the shot which struck him.

1. When located on 24 March 2009 the accused’s shotgun was loaded with two 12 gauge shells.  It had, as designed, a 20 inch barrel length.

1. The second deceased, Mr Roberts, was shot in the street outside [address 1].  He had also been facing in the direction of the shot which struck him.  He was one to two metres away from the end of the barrel when struck by the shot.

1. Of some significance was the evidence concerning the gun safe.  Mr Ross Squire, a locksmith, had examined the safe and its keys.

1. He had calculated the time taken to open the safe to retrieve a weapon at 12 seconds.  This simulated the scenario the accused referred to in his record of interview of obtaining the key from the roller door and unlocking the safe to retrieve the weapon.

1. In court, the witness retrieved the key from a similar height and position and unlocked the safe so as to be able to retrieve a weapon locked in there in six seconds.

1. Witness 19 was a friend of the accused.  He had visited him when he, the accused, was living with Witness 3.  There was argument, he said, between the accused and Witness 3, about Witness 3 bringing Rebel members to the home.  He was aware that Witness 3 had complained that her cannabis crop had been “ripped off”.  She alleged that Witness 19 and the accused had done it.  He said that they had not done so, though it seems Witness 3 may well have believed that to be so.

1. Witness 19 had helped the accused, after his break-up with Witness 3, to take items to her which he understood her to claim.  He was aware of threats being made to the accused and that the accused was distressed and frightened as a result.

1. Witness 18 also confirmed that he was aware of threats being made to the accused and his family and that the accused was fearful that –

These bastards are going to come and kill me.

1. Witness 20, another acquaintance of the accused, attested to the accused’s stated fears, before the shootings, that he would be killed by members of the Rebels Motorcycle Club.  Witness 20 had supplied Mr Carrigan with some cannabis plants to cultivate.  They had been given to him for cultivation by Witness 3.  She had given him the impression that she could get the Rebels to do her bidding.

1. Witness 21 was another acquaintance of the accused. Again, he confirmed the accused’s apparent perception of being under threat and his fear of the Rebels.

1. Witness 22 gave similar evidence from a similar perspective.

1. I am left in no doubt that the accused was, at the time of the deaths of the deceased in a state of fear and terror lest he be again the subject of attention by Rebels members supporting Witness 3’s demands.

1. The next witness was Witness 10.  He was the member of the Rebels referred to by the accused’s mother as having attended with Witness 3 and Witness 11 to enable Witness 3 to obtain the property she claimed.

1. He denied doing anything other than placing a permit on the Club Sports Commodore vehicle which was then unregistered and moving it away with a set of keys given to him.  He stated that the keys were given to him in the car by Witness 3 before he got out of his car, which was driven by Witness 11.  He denied making any threats or, indeed, having any conversation with any of the residents of the accused’s mother’s house or of behaving in the intimidatory manner she and other witnesses described.

1. He further denied having earlier taken Witness 3’s phone from her and spoken to the accused’s mother.  He rejected specifically the suggestion that he had made the demand referred to by the accused’s mother, stating, “it’s breaking the law”.  He denied making the threat referred to by the accused’s mother at the time the Club Sports Commodore was collected.

1. He did concede that it was Witness 3 who gave him the keys to the Club Sports Commodore.

1. I regret to say that Witness 10 did not impress me as a witness of truth.  To the contrary, his denials of any threatening behaviour towards the accused’s mother and the accused were delivered in a manner that was so artificial as to be unworthy of credence.  I do not need to comment on the general evidence he gave concerning the Rebels Motor Cycle Club generally but I do not accept the benign picture he painted of the deceased Mr Roberts, a picture totally at variance with that man’s violent criminal past of which Witness 10 unconvincingly claimed ignorance.

1. I should add at this point that, insofar as the tragic events of 24 March 2009 were caused by a state of fear and panic suffered by the accused, then, in my view, that state was induced by Witness 10 at the instigation of Witness 3.

1. Mr Dominik Radman gave evidence of meeting Mr Roberts at Bunnings Tuggeranong on 24 March 2009.  Mr Roberts was looking for skirting boards.

1. This is consistent with the evidence of Witness 3 that the main purpose of the visit by the deceased to the accused’s mother’s house was to retrieve Mr Carrigan’s drop saw.  That is not to say that they did not have in mind the opportunity to further terrorise or injure the accused in further retribution for his supposed ill-treatment of Witness 3.

1. Mr Michael McKeown, a housemate of Mr Carrigan, confirmed that Mr Carrigan had, on 24 March 2009, the intention of working with Mr Roberts on the renovation of a house.  He had been aware of Witness 3’s association with both the deceased and the accused.  Whilst he denied warning the accused about Mr Roberts he did concede that in the context of the relationship between Mr Roberts and Witness 3 he did say to the accused “words to the effect but just watch yourself young fellow, that’s all I said”.

1. This evidence supports a conclusion that, as at 24 March 2009, the accused was in a state of fear and concern lest “The Rebels” might seek to carry out the threats he had been made aware of both directly and indirectly.

1. Witness 23 also deposed to an awareness of the state of fear which had been induced in the accused.

1. So far as may be necessary further to corroborate that state of affairs the mother of a friend of the accused gave evidence of the accused’s state of fear and anxiety after he left his home to avoid the visit of Witnesses 3, 10 and 11.

1. Quite clearly, that state of mind of the accused was a reasonable reaction to the threats of which his mother gave evidence.

1. There was a witness, Witness 2, whose attendance could not be secured, but who had given statements to police.  I was satisfied that reasonable steps had been taken to secure his attendance.  It was clear to me that his fear of the persons involved in threatening the accused made him unwilling to attend court.  It seemed to me that the evidence represented by those statements should be admitted.  That evidence does corroborate substantially the accused’s version of events on 24 March 2009 as represented by his statements to police so far as that was possible.  I accept the qualification that cross-examination on the part of the accused is not possible but I do not consider that has prejudiced the case of the accused.

1. According to his evidence, Witness 2 had been with the accused in the garage of the accused’s mother’s house, used by the accused as his living quarters, when the deceased came to visit.

1. According to his statement, he answered a knock on the door and saw two heavily tattooed men at the door.  They asked to see the accused.  He recognised one as a former boyfriend of Witness 3.  He had seen the other person before on one occasion and recognised him as a Rebel member.  He told the accused, “There is two, like, reb looking dudes at the door”.  He did not tell the accused that he recognised Mr Carrigan as Witness 3’s former boyfriend.

1. The accused immediately told Witness 2 to “go up the back and hide, man, go hide”.  Witness did so.  Shortly thereafter, Witness 2 heard the first gunshot.  He heard, more faintly, a second gunshot about 15 to 20 seconds later.

1. He and the accused had, before the deceased arrived, consumed some alcohol and marijuana.

1. The Crown also tendered the record of conversation between the accused and police, both the initial conversation and the formal record of interview.

1. His account of what occurred, after Witness 2 fled, was:

I was basically sitting down, and, and two blokes came in, and virtually grabbed me, and started throwing me around the room, and then I, I sort of arced up, and just started defending what was mine.  And I said, “Fuck you, Rebel fuckwits, you want to fucking come to my fucking house, you are fucked”.  I just went off, I don’t know, I lost myself in the moment, and sure enough two people got injured, and the gun has been put away, and everything is safe.

1. Clearly this account is incomplete.  It seems to claim that the accused did not recognise either man before they entered his room.  Mr Carrigan clearly, was at or outside the doorway when the shot was fired.  Was he shot immediately or later?  Did the two men manhandle the accused?  If so, how did Mr Carrigan come to again be outside facing the doorway?

1. The formal record of interview commenced at 5.43 pm and concluded at 11.22 pm.  The accused conceded alcohol and marijuana consumption that day.

1. There is some support for the view that the accused did not recognise Mr Carrigan.  When told of the allegation, naming the deceased, his first response was –

A69     “So it was Greg?”

A71“So the person at the door – if you are telling me that’s, if his name was Greg, that must have been him”.

1. Later on in the Record of Interview the accused described what happened:

Q137Yes.  Can you tell me in order of what happened, what happened, from start to finish?

A137Well, we had just finished lunch, we had ate chicken sandwiches on the balcony, we had sat down, and started having a few beers, I’m going to go out the back and rake up a few leaves, and get, try to get the yard in, in some order.  And I, I went outside for a second, and then basically we have turned around, or I have turned around, and there was two Rebel – or what I, as far as I know as Rebels, one of which I was, I thought was, um, what’s his name, Rick?  What’s the big guy, the one you mentioned first, Rick?  I, I know him before, because he has come to our house before and hassled us, and he has threatened mum many times, the kids have been attacked, and this is on ongoing thing.  And, yeah, he’s, he was one of the ringleaders.

Q138Okay, so what happened then?

A138Well they then cornered me into a, in the shed, in a corner going, “Where is the fucking money?” or, “Where is your fucking money?  Where is your family, we are going to get what we want.”  And, and in sight, and moving back toward me.  And, and then I just, I started running, I started – I raised up off my seat like this, and I started instantly like, the adrenaline of what was going on.  Because I knew these guys were there to kill me, because last time they said, “The next time we come back, we are going to kill you,” and they were his exact words.

And so I got off my seat, and just started doing, running laps of the shed, and then he, he has run out, like I ran outside to get them, and then they started chasing me around the backyard.  And then I then ran back into the shed looking for the thing, I, I couldn’t find my baseball bat, because that was the only thing I could think of, that would have, would have stopped them.  Because these guys were going to kill me, these guys were there, they had come onto my property on my day off, to invade my privacy, and they – and I was in just an absolute run around.  I ran from the back, back around the shed, around the front, and they were just going, “Come on cunt, you fucking weak cunt.” Kept screaming at me, going, “I should break your fucking neck.”

And then I, I have run in, couldn’t find the bat, that’s when I have reached down, grabbed my keys, and opened up the cabinet, and pulled out the firearm, and just aimed blindly toward the door.  I wasn’t, there wasn’t any, there wasn’t any aim or nothing, it was just blindly, like whack.  And the next thing I know, this man has dropped, like, this guy has dropped in front of me, and this is no word of a lie, he, he sort of, he was down.  And then the other guy, I turn around, and he is going, “You have done it now, cunt,” and just I, for me, I fucking, I just don’t, I don’t know what or how I could even do at that point in time, does that make sense?

Like, for me that is – because these guys have done this, like, I have, I don’t understand.  It was such a spur of the moment thing, that I was trying to think the most savoury way out of this, was that – you saw the arms on the guy, the guy is this big, you know?  He is sitting there going, “I will break your neck, you little fucker,” and from there on, I was then chased out the front, and I was, I was sort of backing off, like, a little bit.  And then he has – like, and then I have, I said, “I can’t do this, I can’t do this,” and then I started running down the street, with my fire – with my shotgun, turned around, and this Rick guy was probably from about maybe me – oh, yeah, me to you away, and I just turned around and just – I, I didn’t even look, I just, I turned around, and just went – I didn’t even think, I didn’t calculate, I didn’t do anything.  I was, I was being put – I was being threatened, my life was so damn threatened, and somehow before I know it, there is this guy down in the street.

Like this, this is real life, like this for me is like, what you see on TV, or something I can’t even imagine, you know what I mean?  This is unfair, this is unfair on the neighbourhood, on you guys, like, the neighbours that seen it, like, I just – this can’t be happening, guys, this cannot be happening.

1. He described his perception of Witness 3’s role in the matter:

Q156   Okay, and how does she fit into the picture?

A156She was, um, all right, going back for a little while now, say two years, two and a half years.  And I was, um, I was sort of eighteen, like, just very young, very naive kid.  Um, third year of my apprenticeship, so I had just started earning some, some decent coin, and, um, fell in with this, this bird, and she’s – she was all right at first, and then time pressed on and she’s just – she was thirty, thirty eight or something, I was, I was eighteen, so I was very – she had done the track, I hadn’t.  She, she knew, like, you know, what she was getting at, and just took me for all I was worth, and got, got everything as.  And, yeah, she must have been since – yeah, like since breaking up, at times will send, like, send bikies, or send people to either beat me up, or have a go at me.

1. He expanded on the meeting that occurred, at question and answer 159:

Q159All right.  So is there anything in particular that makes you think that on this occasion, [Witness 3] has told, or got these two to come around to your place?

A159Well, because one of the things, the – one of the first things, as the guys approached the, um, the garage, was, “Oh, we have got a fucking list here, and everything is coming on that list.”  So someone has obviously given her a list – given them a list of things, and on that one thing there was things like, “Tools,” like, “Dropsaw,” or like – I told the owner ... (indistinct) ... that’s my tools, I need my bloody tools.  I need the fucking drop saw, they were trying to take the drop saw, everything, and, and yeah, there was obviously a list of things that they, they wanted, and ...

1. His perception of the October 2008 event was also referred to:

Q165And why was that?

A165I honestly don’t know, we haven’t seen them for – well, the last confrontation, they came around and threatened when we broke up with her, and then they stole me car, I used to have a, um, VT Commodore.  But see we, like, we tried going to the police with all this, with these things, but once the rebels came to the house and said, “If you say anything to anyone, we are going to kill the family,” that’s when I realised, “Is it worth the car, or, or what’s worth more?  A car, or your family’s life?”  So for me, when I started receiving threats like that, I just, just went really quiet.  Like just live in the shed, live a quiet existence.  Like I don’t, don’t go out, go hang around the pub or anything, if I want to have a few beers, I will drink at home.

1. The sequence of events was expanded on:

Q168   Just from the start again.

A168Well as, as I said, I mean, there are cloudy bits.  We were sitting in our, we were sitting at home on the balcony, eating lunch.  Had lunch, had a few beers, sat down in the shed, chill in there for half an hour.  We were then stormed by two men, swearing, throwing shit, going off, yak, yak, yak.  We then – there was a chase erupted, which went into the backyard, and then back into our, into the shed, that’s where one, the first shot was fired, toward the doorway.  And then I was then chased out of the house, through the house, onto the street, where the second shot was then fired, and then was basically, it went all over red rover.

1. The sequence was revisited at question and answer 179 and 180:

Q179Okay.  Can you remember as closely as you can, the conversation that started off?

A179Just, “It’s your time, mate,” he just goes, “It’s your fucking time, mate.”

Q180And what happened then?

A180And then we – I jumped up out of my chair, [Witness 2] just didn’t do a thing, and then I started running around and getting there – trying to get them out the, get them out the back, and get them away from, just, the house, and, and my things, and ...

1. I do note that this account is at variance with Witness 2’s statement.  Witness 2 was told to flee immediately after he reported the visitors at the door and gives no details of anything else intervening.  It is not however, inconsistent with that statement.

1. The accused said he fled out of the garage, evading the two men.  He returned to the garage.  He was asked why he did so, instead of fleeing further.  His answer was:

A202Because I had, I know that I have got a friend in there, that is going to to get himself, bloody, beaten to death, because they would have gone in for him.

This is consistent with Witness 2 having been told to hide.

1. What happened next, he said was:

Q203Okay, all right.  So what has happened then, once you have come out of the garage?

A203Well then they have chased us around the backyard, and there’s – we have got a big colour bond fence, there’s one way in, so then I went in and locked myself, or just tried to lock myself in, but they kept barging their way in the door again.

Q204Back in where?

A204Back into the garage.

Q205Right.

A205And that was when the first shot was fired, when I was, like – I, I picked it up, and turned around, and that’s when it was.

Q206All right, so they have chased you around the back garden?

A206Mm.

Q207You said they chased us around the back garden, did [Witness 2] come out of the garage?

A207Not us, I mean, when I say us, I mean me.

Q208Yes.

A208Like, me, me, like, me, myself and I, us.

1. He referred to [Witness 2] as at that stage:

Q219Okay.  What was [Witness 2] doing at that point?

A219[Witness 2] was just still sitting there going, “Dude, what the fuck are you going to do, what the fuck are you going to do?”  It’s all he kept saying, “What are you going to do?”

Q220All right, so what happened then?

A220Then I said, “Fucking, we have got to, we have just got to protect ourselves,” I think.  What did I say?  Because, because in those situations, you are not saying much, you are doing.  It’s not about saying, it’s about doing.

Q221Well what did, what did you do then, at that point?

A221I ran and grabbed the gun, turned around, and just went whack, toward the doorway.

Q222Mm, and so the gun was in the safe, and did you say before that you needed to use your keys?

A222I had the keys right on me, I, I’m pretty quick, I can – I, it’s not hard to open a gun safe, and the gun is already loaded, and pull it out, and it was ready to go.

Q223Right.  So was the gun safe unlocked?

A223No, it was locked, it has always got to be locked, you never leave it unlocked.

Q224Okay. What sort of – how do you unlock it?

A224With these keys here, sitting there.

Q225Oh, that’s all right, with those keys?  Yes, righto. Yes, with those keys, but what, they are the keys to unlock it, but what is the actual lock on the safe?

A225It’s, it, I guess it would be classed as a, um, shaft and barrel.  Oh, it’s a, it’s sort of like a bank safe, almost.

Q226Okay, So what are the specific actions you need to do to open up the safe?

A226You need a – it’s just a big lever like this, you can’t miss it.

Q227Yes.

A227Dead easy, one turn, and it’s open.

Q228Okay, but what do you need to do with the key?

A228Well, you, put it in the lock and, and turn it.

Q229Okay.

A229It’s just one easy motion.

Q230Yes, and where is the key lock, compared to the bar that you have to turn, or the thing that you have to turn?

A230Um, I guess you would say it would be on the right hand side of the, of the, of the handle.

Q231Okay, and do you have to move from where you put the key – do you then move to where the, where you have to turn the thing?

A231You, you sort of – well, I mean, if you have got the key ... (indistinct) ... I guess it’s just a straight forward process of going over, switching the key, and, and ...

Q232How were you feeling at this point?

A232I, I can’t honestly state how I was feeling, I don’t know how I was feeling, and I don’t know what I was doing, and I, I can’t tell you any more about – I can honestly not tell you, you can’t explain feelings, or you can’t, you know?

Q233Mm, all right.  So can you describe for me the firearm?

A233Um, well it’s a, it’s a small, it’s a shortish sort of shotgun, it’s a small- it’s quite a good, good hunting, I go out most weekends, and I get out of town, you know, it’s great.  I mean, get out town, go in the bush, and shoot goats, you know, that’s what I do.

Q234So what type is it?

A234Ah, twelve gauge.

Q235Mm, how many barrels?

A235Ah, two.

Q236Two okay.  And why do you keep it loaded?

A236Well, because, I mean, simply for the fact, what, there has been a lot of issues throughout the community where you would have to wonder.  I mean as, at times I, I sort of would wonder.

Q237Mm, did you have it loaded because you were expecting these blokes to come around?

A237No.

Q238Just, when you open up the safe and the gun is in there, loaded?

A238Oh, I can’t comment on those, I just, I don’t know what I am doing here like this.  I need – can you get the legal man, or whatever.  I just, I’m sorry, I can’t keep doing this.

1. There were some injuries noted on the person of the accused.  On his nose, forehead and cheek were scrape marks.

1. It also appears that the accused assumed that it was the deceased, Mr Roberts, who had been at his house in October, not Witness 10.  He was asked if he knew Mr Roberts:

Q391Okay.  And what about the other male?

A391Him – I’ve sort of, I have seen him and heard his nickname, like, I have heard that, that nickname is – there was one incident when they came to the house, and, and I think it was him.

Q392Okay.

A392And that was when they stole, um, a car off me, about a year ago.

1. His description was:

Q399   Okay.  Can you describe which one was shot, at which location?

A399Um, well, I, I’m pretty sure it was Greggy – well it was definitely Greg who, the other one chased me out the front.  So Greggy was out the back, so it would have been Greggy.

Q400   Okay.  And when was the last time you had contact with Greg?

A400I couldn’t remember when, it would be over a year ago, or when I left.  Well he used to , me and [Witness 3] lived at the house, and he used to come and hassle us for, for coin, and, like, used to beat up on [Witness 3], and do all that sort of stuff, too.  That would have been probably a year and a half, or a year, I would say a year and a half.

Q401That was, um, much more recent, that was about eight months ago, that was the last time they came and threatened us.

Q402Okay.  Can you describe for me those events?

A402Well it, it was a situation of, we received a series of phone calls from, from Friday to Monday, and I tried to ignore them and, and not take any note, but then my mother, we started getting calls at our house on the home number, and, and death threats so on to mum and the kids.  And then the next day, him and, um, him and one of his friends rocked up and took the car.  That was, yeah, about eight months ago.

1. He took it, he said, that the two deceased had a firearm available to them.

Q424   What did they actually say?

A424They just said, “It’s your time, matey,” and then, like after, then I started running, I think.  Greggy’s, Greggy or something said, like, “You know who we are,” like, “You know what we got.”

Q425But that’s all he said?

A425Well, they kept going, like, threats just kept being made.  Like, it was like a, just a montage of, of threats, it’s like we want, we want what we want right now.

Q426Mm, but did they – is it correct that you are saying that they didn’t specifically mention a gun?

A426They didn’t have any weapons.  I mean they, they go, “You know what we have got, and we can get it now,” but they didn’t have any weapons on them.

Q427Okay.  When you turned, when you shot Greg out the back, how long from when the time that you got your hand on the gun, until you pulled the trigger?

A427Well, um, I really don’t know, I couldn’t tell you, honest, honest.  I can’t recall time, at that point in time, I could not put a figure on time.

Q428Did you give him the opportunity to see that you had a gun?

A428I’m really not sure.  I doubt he would have known.  It was so quick, it would have been, like, it would have been so quick, I doubt he would have.

Q429Did you consider threatening him with the gun, so he would stop chasing you?

A429Well, what I have always been told, and all the movies and that on, on TV, if you pull – or if you were, in theory, to do that, that you would have to use it.  Because if you pulled it on them, and didn’t use it, they would grab it, and shoot you.

Q430Mm, how far away ---

A430So it’s a life threatening – that’s what I’m saying, it was my life, or theirs, that’s what the ultimatum is.

1. He was asked about being pursued by Mr Roberts, after the shooting of Mr Carrigan.

Q485During the reading of Detective GOUGH’s notes to you just then I noticed that you made mention to the male in the street who you identified as being “Rick” ---

A485About a blade.

Q486--- about a blade.

A486Yeah.

Q487What can you tell me about that?

A487Well, the blade he – he was threatening he had something.  I didn’t physically see a blade but he definitely had something.

Q488And why do you say that?

A488Well, because his body language and the way he was, like, going like this.

Q489Like what?  Just explain that for me.

A489Well, say – um, say you’ve got big pockets on, like, I definitely had the feeling he had – he was armed with something because he was going – like, the way he was protruding forward, made me have – it gave me the feeling that he was armed with a blade.

Q490And at what point was he doing that?

A490All through the encounter.

Q491Did you, at any time, see a weapon on either of them?

A491I didn’t actually see a blade but definitely, like – if I – if you guys have your gun, you don’t need to physically pull it out to know that you’ve got a gun.

1. He did add the detail that, when he went to move their cars, the keys were in the ignition.

1. When he was pursued by Mr Roberts, the accused was asked about his intention with the gun.

Q607So, did you deliberately shoot the gun at him?

A607No. No. I turned and shot him.  Even if I shot near him he’d – he’d run off.

Q608Well, I don’t know if you can have it both ways.  You were either defending yourself – I mean, did you point – what were you trying to do?

A608Well, I was trying to shoot at him to – to get him to go away and to save my life.

Q609So, you were trying to shoot at him?

A609I was trying to shoot near him.

Q610Okay. And how far away? How far did you say before that you were away from him?

A610Um, well, that would be five – he was facing the street – five-ish.

Q611Five metres?

A611Mm.

Q612It’s pretty close.

A612Mm.  Oh, god, yeah.

Q613What are the chances of missing at five metres?

A613Well, I mean, if you had time to think about it, well, obviously the chances are good.  As I said, spur of the moment.  My life – I was not thinking clearly and my life was at stake and I was going at a hundred miles an hour.  There wasn’t any logical – I can’t put any logic toward the day.  I’m a logical man, I was an electrician.  Today is not logical.

Q614Was there any conversation from the time that Greg went down until the time Rick went down?  What was said between you and Rick during that course of events?

A614Hardly anything.  Just running.

Q615He didn’t say anything to you?

A615Not really.

Q616Well, not really or no?

A616No, no, the odd threat but, as I said I’m not ---

Q617Which was what?

A617Well, the odd threat, “We’re going to kill you” blah, blah, blah.  But this is – this is all in a very quick time.  I can’t – I can’t write down every little word that was said.

Q618Okay. And what did you say to him?

A618I wasn’t saying anything.

Q619Did you say anything to him?

A619I said – the one thing I said, I turned around and said, “Why are you doing this?  Why are you doing this?”

Q620At what point did you do that?

A620Probably half way down the street.

Q621Did you stop to say that?

A621I, sort of – I was running but I was saying it, if that makes sense.

Q622Yes.

A622So, you’re – you’re getting away.  I didn’t – I didn’t turn and face him and say, “Why are you doing this?”  I was, sort of, still making – trying to get away while saying that.

Q623Okay.  Describe for me exactly what happened at the point you turned around or at the point that that incident with Rick happened?

A623Well, I – I turned around and “bang” the incident over.  No time to think.  End of day, like.  It happened honestly that quick.  It was just like a – it just went.

Q624So, did you say anything to him as that was happening?

A624No.

Q625Did you give him the opportunity to back off because you pointed the gun at him?

A625Mate, he had the opportunity a long time – if – if he wasn’t going to hurt me – if he wasn’t very much going to hurt me or kill me why would he have chased me.

Q626Yes.

A626Like, what’s a guy of that size do when he gets his hands on you?  Then what happens when he breaks your fucking neck and you die or – or kicks the guts out of ya – and then goes and rapes your family and your wife and then – and then you die and then you’re nothing.  Like these guys are pretty sick, like, I wouldn’t – have you got a family?  Have you ever had these guys come to your house?  It’s pretty bloody intimidating and it is a  - a serious – just give it a bit of thought.

1. At question and answer 737, the sequence was reiterated:

Q737   All right.  Explain to me again what happened then?

A737I was getting chased in my backyard.  I ran to my gun cabinet.  I grabbed my gun and turned toward the door where a dude was running through when I then – listen, guys, today I’ve been – I cannot keep up.  I am starting to get delirious and I don’t even know what I am saying now.  I am just fatigued and tired and fucked.

1. He had looked for a baseball bat instead.

Q738   All right, well, I understand that.  Mate, where was your baseball bat?

A738I couldn’t find it.  I looked around for it.  That would have been my first point of call.  It wasn’t there.

1. The purpose of the visit did include reference to the drop saw.

Q775So, how did this conversation take place that you got this information as to what it was they wanted.  Do you know what I mean?  You seemed to have described it happened so quickly.

A775Well, he was going – well, he’s going, “We’ve got a list.”  All he said was, “We’ve got the list” and drop-saw and wheels were mentioned.  Or drop-saw or tyres or drill or something.  Like, the bitch has probably made a list of fucking things this long.  You know, probably got my knickers on the fucking list, because that’s the extreme of what she is.

Like, I got stripped bare eight months ago.  That’s what you guys need – I got stripped bare eight months ago.  I absolutely got fucked up eight months ago and I couldn’t just ring you guys and go, “Yeah, help us out,” or ring up some guy to give me some help, you know.  I couldn’t even ask my family for help because after I went out with her they all just disowned me – having sex with some forty year old, you know.

Why would you want to know your kid after that, you know.  It’s just sicko shit.  They disowned me.  So, I couldn’t ask them for help and I couldn’t ask anyone for help.  You’re in the cop shop here, mate, and so there’s rebels at my door belting fuck out of me.  What are you going to do?  Nothing.  Just go, “Oh, yeah.”  It’s a tough situation, mate, it really is.

1. It is apparent from this that the accused assumed that “the Rebels” were the persons who had intimidated his mother and uttered threats against him.  He further assumed that the two men who came to his door on 24 March 2009 were, as then, seeking to take his property, as well as that of Witness 3, and do him serious injury if not kill him.

1. These fears, whether or not the deceased themselves intended physical harm of that order, were reasonable and I have no doubt were genuinely held by the accused.  His primary purpose therefore was to avoid harm to himself.  If he was only concerned for his property I think he would have surrendered “the list” he referred to.  Indeed, he said as much.

1. I appreciate that to rebut either provocation or self-defence the prosecution bears the onus of proof but, in this case, I am left in no doubt that the accused, when he decided to obtain his shot-gun was motivated by a well-founded fear that if he did not defend himself from the deceased he would be seriously injured or killed.  I am not in so finding, expressing satisfaction that the deceased had that intention.  I think it likely that their primary purpose was to get the drop-saw but I think also that they were taking advantage of that purpose to get any other items that could have been property of Witness 3, at least in their minds, and further to terrorise the accused in retaliation for his supposed ill-treatment of Witness 3.

1. In the defence case a report of Dr Stephen Allnutt was tendered.  It was his opinion that the accused had symptoms of post-traumatic stress when he saw him on 9 September 2009.  He concluded that on 24 March 2009 when the deceased visited him he was in fear of his life.  I have to say I do not need to place any reliance on Dr Allnutt’s expertise to reach the same conclusion.

1. If more is needed, a custodial officer’s report details death threats to the accused from a Rebel member in custody.

1. I turn now to the prosecution submissions.

1. I agree with Mr Doig that, clearly, each man was shot by the accused.  He pointed a loaded shot gun in the direction of each man and discharged it.  The first shot was at Mr Carrigan as he attempted to re-enter the garage.  The second was fired at Mr Roberts as he pursued the accused along Couchman Crescent away from the house.

1. I have no doubt that whilst not specifically intending their death, in each case there was, at least, a reckless indifference by the accused to the likelihood that each man would be fatally injured.

1. The accused acknowledged that he had not seen either man produce a weapon, though he feared that Mr Roberts had a knife.

1. Mr Doig stressed that there had been no history of animosity between Mr Carrigan and the accused.  He contended that the accused would have recognised Mr Carrigan.  As to Mr Roberts, Mr Doig contended, it was or should have been apparent to the accused that he was not the same Rebel who had threatened him and his mother in October 2008.

1. Bearing in mind that Witness 2’s statement was not cross-examined upon, it seems to me that I cannot reject the accused’s account in his record of interview, though not on oath and also not subject to cross-examination, that has the deceased at the door of the garage.  I am satisfied that the accused then told Witness 2 to flee.  Witness 2 did so, presumably passing the deceased at, or a little within, the doorway.  I infer that they then entered and after an initial confrontation chased the accused around the garage, out of it and back in again when the accused accessed the firearm and shot Mr Carrigan.  Mr Roberts, it seems, must have gone in a different direction, perhaps to cut off the accused should he flee around the other side of the house.  He then, after realising that the accused had shot Mr Carrigan, pursued the accused up Couchman Crescent to the point where he himself was shot.  He was apparently catching up to the accused who was burdened by the firearm that he could hardly be expected to abandon.  To do so would have given a weapon to Mr Roberts who was, by then, undoubtedly harbouring murderous intent.

1. Mr Doig pointed to some discrepancies in the account of the accused, and differences with Witness 2’s statement but I have to say that, given the urgency and the terror of the event, I would not regard those discrepancies or variances as indicative of any deliberate attempt to conceal or misrepresent the truth.  It would be understandable if the accused confused some details, particularly given his earlier drug and alcohol use.  The most likely scenario, I believe, is that which I have outlined.  In any event, I cannot with reasonable certainty exclude it.

1. Mr Doig also pointed to the language that the accused employed in describing his reaction to the invasion of his home by the deceased.

I just went off my brains man, like I’ll be honest with you, off my brains I just couldn’t control.

1. That, Mr Doig submitted, was more consistent with an impulsive loss of control as a reaction to an extreme perceived threat.  That would, he submitted, not sustain self-defence.  I note however, that it could sustain provocation.  Mr Doig did not address that issue.  Nor did Mr Purnell.  As will become apparent, it is not necessary for me to address that issue.

1. There was no doubt, Mr Doig submitted, that the drop saw was an item it would be reasonable to have given to Mr Carrigan or Witness 3 if that was the sole demand.

1. Mr Doig accepted that Zecevic (supra) is the leading case on self-defence.  But, as I pointed out in R v O’Meara [2009] ACTSC 122 (18 September 2009), an accused may not rely on self-defence unless the accused believes on reasonable grounds that the degree of force used was necessary for self-protection even if some protective action is justified.  O’Meara was the case of a male accused who had menaced his de facto partner causing her to produce a small paring knife to protect herself.  He then brutally punched her to the face and head.  I considered the degree of force used belied the claim of that accused to have acted in self-defence.

1. Mr Doig also referred to Lukatela v Apostoloff [2009] ACTSC 167 (17 December 2009). The question of the objective reasonableness of the response is to be assessed against the existence of a threat which calls for that response. This is an element additional to the question of whether the accused honestly perceived such a need.

1. As to that latter element there is, in my view, no doubt in this case that the accused entertained such a belief, though it suffices that it is a proposition that cannot be rejected beyond reasonable doubt.

1. The issue to be resolved in the case of each deceased is whether, at the time of the fatal shot, the objective circumstances were such that the accused could reasonably perceive himself to be at risk of death or serious injury in the circumstances as were presented to him.  The answer could be different in each case.

1. Mr Purnell pointed first to the evidence that the accused, for whatever reason, had appeared not to recognise Mr Carrigan.  Further it appears that Witness 2, the only other person present when the deceased attended the house, was clearly terrified enough to flee and hide as the accused suggested to him.

1. I have to say that whether Witness 2 was terrified of the deceased from the outset is not clear.  I have no doubt that when he was told to hide, he was alarmed, and more so with shots later being fired.

1. Mr Purnell also highlighted the home invasion in which Rebel member Witness 10, took the role of intimidating and extorting money and property from the accused’s mother in the context of an accusation that the accused had taken property from and ill-treated Witness 3.

1. I have indicated that I accept that these events occurred and that they caused the accused reasonably to fear that if “the Rebels” returned to his house, not only would Witness 3 have further demands but they might well inflict further punishment for his alleged wrong doing,

1. He pointed out that, even if the accused had recognised Mr Carrigan, he would have been aware of his past violent behaviour.  He would have been aware that Witness 3 was then in a relationship with Mr Roberts, a Rebel member, even if he was not aware of his name.

1. There was also the circumstance that the accused’s mother believed she was being stalked by a person answering Mr Roberts’ description over the three weeks before 24 March 2009 and had told the accused of it.

1. I have to say that, given the work being done on Witness 3’s house a few blocks away, it may well be that this apparent stalking was not intentional on the part of Mr Roberts, but it added to the atmosphere of dread and of threat that the accused was feeling.

1. I also have to say that it is difficult to separate out what was said by way of threats by the deceased and what was a fear of their purpose.  They came for a drop saw.  It may be that the accused feared they came for more than they actually intended.  It may be their manner which was threatening more than their utterances.  Their appearance obviously was.  Whatever they actually said, as opposed to what they implied, it is clear that the two deceased were threatening and abusive and that the accused was terrified of them.

1. As I have said, there is no doubt in my mind that, after Mr Carrigan was shot, Mr Roberts would have killed the accused if he had caught him.

1. That is certainly what the accused feared as he fled up Couchman Crescent.

1. Mr Purnell submits self-defence is made out or, at least, not refuted with reasonable certainty.

1. I accept that the accused, when he was told that two “Rebs” were at the door and saw them, that he reasonably believed he was in a life threatening situation if they should choose to attack him as they then appeared to do.  I do not think he then recognised Mr Carrigan, though it would probably have made little difference in the context of that occasion.  He fled to the back yard at first.  That clearly enraged his pursuers.  They had demands and were threatening.  He feared for the safety of his friend if he simply left.  In any event, he was at his own home.

1. His motivation in obtaining his firearm was to avert the perceived threat.  There is, however, no doubt that he was recklessly indifferent to the death of each deceased when he fired.

1. If the subjective element of self-defence be not refuted, the next question is not only whether some action in self-defence was objectively justified, but whether the use of a lethal weapon was justified.

1. Given the position of the weapon it does not seem that the accused did other than retrieve his weapon, turn and fire as Mr Carrigan came to the door of the garage following a brief chase around the back yard.

1. It does not appear either that he offered Mr Roberts an opportunity to desist before firing at him.  On the other hand, Mr Roberts was clearly enraged and, if aware that Mr Carrigan had been shot, as he probably was, clearly would exact vengeance if he caught the accused.  That was no idle fear.  Witness 10 attested to the fact that Mr Roberts was a very strong man, even if he had some ailments.  Mr Robert’s record supports the view that he was a man who, like Mr Carrigan, would use violence if he felt like it.

1. The accused knew all of that.  The question is whether his decision to arm himself and use the weapon, first, on Mr Carrigan and, next, on Mr Roberts, was objectively a reasonable reaction in the circumstances as he reasonably perceived them to be in order to avert a threat of death or serious injury.

1. In the result, I cannot say that it was not.  Accordingly, the prosecution has not rebutted the reasonable hypothesis that the accused acted as he did in self-defence in respect of each deceased.

1. I record a verdict of acquittal in each case.

I certify that the preceding one hundred and sixty-eight (168) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date:    8 March 2010

Counsel for the Crown:  Mr A Doig
Solicitor for the Crown:  Director of Public Prosecutions for the ACT
Counsel for the Defendant:  Mr J Purnell SC
Solicitor for the Defendant:  Legal Aid Office (ACT)
Date of hearing:  20, 21, 22, 23 and 29 September 2011
Date of judgment:  8 March 2011