R v Scroop - [2020] NSWDC 953

District Court

New South Wales

Medium Neutral Citation: R v Scroop [2020] NSWDC 953
Hearing dates: Monday 29 June – Friday 3 July 2020, Monday 6 July 2020.
Date of orders: Friday 10 July 2020
Decision date: 10 July 2020
Jurisdiction: Criminal
Before: Tupman DCJ
Decision:
The accused is acquitted on both counts.

Catchwords:
CRIME – Judge alone trial – Judgment - Two counts on indictment – Wounding with intent to cause GBH – Cause GBH being reckless as to causing ABH – Victim and accused in domestic relationship – Victim suffered deep wound to her neck by a knife – Wound caused by accused who had knife in his hand when he pushed victim out of the way and where the knife made contact with victims neck - Medical evidence finds it is reasonably possible that the wound was created unintentionally when accused pushed past victim.

Legislation Cited:
Crimes Act 1900 (NSW): ss 428C(1), 428D.

Category: Principal judgment
Parties: Regina (The Crown)
Kevin Scroop (The Accused)
Representation:
Counsel:
Mr. T. Buckingham (The Crown)
Mr. J. Brock (The Accused)
Solicitors:
Mr. S. Chua (The Crown)
Ms. H. Rake (The Accused)

File Number(s): 2017/00320997

Judgment

HER HONOUR: This is the judgment in the trial of Kevin Dean Scroop. The accused is before the Court for trial, having pleaded not guilty to two counts in an indictment dated 6 August 2019. The trial has proceeded by way of judge alone trial. The counts in the indictment are as follows:

Count 1: That on 7 October 2017 at Glendenning he wounded Racheal Lee with the intention of causing her grievous bodily harm.
Count 2: In the alternative, that on 7 October 2017 at Glendenning he caused grievous bodily harm to Racheal Lee, being reckless as to causing her actual bodily harm.
As a judge alone trial, it should proceed as closely as possible to a jury trial. It is not, however, necessary to deal with some of the preliminary directions normally given to juries in relation to fact finding in circumstances where the tribunal of fact is a judge who is, thus, familiar with the notion of finding facts from evidence. It is important, however, to note that whatever facts are found, they must be on the basis of evidence called, that mere speculation is not permitted, and that facts must be found by the use of logical reasoning and not on the basis of speculation, bias, prejudice, sympathy, or any other emotion.
To some extent in this trial, the relevant facts are found on the basis of evidence called from witnesses but there is also other important evidence, including CCTV footage and an audio recording of calls made to triple-0. When finding facts on the basis of evidence called from witnesses, it is important to assess witnesses to decide their overall reliability, namely, are they accepted as both honest and accurate witnesses and thus the extent to which the tribunal of fact accepts any witness as being a reliable witness, namely, a witness on whose evidence the tribunal can safely act.
It is also not necessary for the tribunal of fact to either accept the whole of a witness’ evidence or to reject it entirely. It is open to accept some parts of a witness’ evidence and reject other parts. The most important direction given in any criminal trial, which must remain at the forefront of the overall deliberations, is a direction about the onus and standard of proof, namely, that the burden remains on the prosecution to prove the guilt of the accused if they can, and, if the accused is to be found guilty of either one of these two charges, the prosecution must prove his guilt beyond reasonable doubt. The accused is entitled to the benefit of any reasonable doubt and suspicion cannot be used as a substitute for proof beyond reasonable doubt.
What needs to be proved beyond reasonable doubt, however, is not every matter of which evidence has been called. In order to prove either of these two offences, the prosecution must prove the essential elements for those offences beyond reasonable doubt.
The essential elements of count 1 are the following:

that the accused deliberately wounded Ms Lee, and;

that when he did so he had the intention of causing her grievous bodily harm.

The essential elements necessary to prove count 2, the alternative count, are the following:

That the accused caused grievous bodily harm to Ms Lee, and;

that he was reckless as to causing her actual bodily harm.

There are a number of matters not in dispute in this trial to which I will refer shortly. As a matter of law, a “wound” is an injury that extends through all of the layers of skin and “grievous bodily harm” means really serious bodily harm. There is no dispute in this trial about the fact that the injury suffered by Ms Lee was really serious bodily harm and, in fact, was life threatening. There is also no dispute, and there cannot be, that the injury amounted to a wound as a matter of law.
The nature of that wound is described in evidence, also not in dispute, and there is also a photograph of it tendered as exhibit E. The description is to be found in exhibit O, the statement of Dr Maria Nittis, tendered by consent. This statement is itself a summary of a number of other medical records from the day of the incident, including from attending ambulance officers. She did not examine Ms Lee personally, but summarises the reports of those who did, either medical staff at the hospital or ambulance officers who first attended.
I accept from this exhibit that Ms Lee was seen by ambulance officers to have suffered a 10-centimetre-long laceration to the left side of her neck, suffering low blood pressure and other signs indicating blood loss. She was taken to Westmead Hospital and examined by medical staff there, who noted that she had an 8 x 4-centimetre laceration to her neck, which commenced to re-bleed in the emergency department. The difference in measurements is explained and is of no moment for this case.
She was estimated to have lost 400 millilitres of blood. The injuries she suffered included a complete transection of the sternocleidomastoid muscle. There was bleeding noticed from the mid-point of the internal jugular vein and the external jugular vein was almost cut cross. Also, the edges of the cervical spine transverse processes were exposed, and the emergency doctor noted that there was a fracture at this point. It may be from subsequent CT scans that this fracture was not, in fact, evident. It seems to me nothing much turns on that. Ms Lee was taken to the operating theatre and a cerebral angiogram noted that there was bleeding from the left vertebral artery, which had caused an arteriovenous malformation, described as a tangle of abnormal arteries and veins, which was repaired.
After surgery, she was taken to intensive care and then ultimately to a general ward. She remained in intensive care for four days and whilst there she suffered a left haematoma about 10 centimetres long on 12 October. A haematoma is a collection of blood outside a blood vessel, which in this case occurred because of ongoing bleeding. She had to go back to the operating theatre to remove that haematoma and repair the site of the underlying bleeding.
She was ultimately discharged on 20 October with some ongoing symptoms, including some sensory nerve damage. This, by any measure, is a very serious injury. It certainly falls well within the definition of grievous bodily harm and clearly enough is a wound. Ms Lee suffered a very serious, life-threatening injury as a result of this event.
The other matter not in dispute is that it was the accused who caused this injury. There are two different versions of the circumstances in which the victim was injured, namely, evidence given by the complainant about the circumstances in which the injury occurred, which she gave by way of evidence under oath, which to a large extent followed a statement she gave to police on 25 October 2017 after she had been released from hospital.
The other version of events is that of the accused. He did not give evidence and he was not obliged to do so. He was entitled to say nothing at the trial and to exercise his right to silence. It is not open to draw any inferences adverse to the accused from the fact that he did no more than to exercise this right to silence. There is, however, other evidence raising a version of the circumstances in which the injury occurred, which I will refer to as the “accused’s version” and that must be taken into account.
That version of events is to be found in three different portions of evidence. The first is the contents of a triple-0 call made by the accused immediately after the injury was sustained. The second is a statement he made to police at the house when they first arrived. The third is a longer record of interview in which he participated with police immediately after his arrest on the day of the incident. He was not obliged to engage in the record of interview either and could have decided to exercise his right to silence at the police station.
He did, in fact, engage in a record of interview and he is entitled to have that taken into account, albeit in circumstances where it must be noted that this does not amount to evidence given under oath or affirmation and, therefore, an assessment of its weight needs to be undertaken. From these sources, however, it is clear that the accused’s version of how the injury occurred is that the wounding was an accident, that he tried to push the victim out of the way so he could get inside the house in circumstances where he was suffering from delusions, believed that he was being pursued, and needed to get away from those who were pursuing him, that in fact, he was holding a knife in his hand but forgot that that was the case, that he used his hand to push the victim out of the way and that the blade of the knife cut the victim’s neck accidentally in those circumstances.
For the Crown to prove either of the counts, it must prove the essential elements, as I have said. It seems to me that, in real terms, the first essential element for each of the offences is largely the same. For count 1, it is that the accused wounded the victim and for count 2 it is that the accused caused the victim grievous bodily harm. As previously noted, there is no dispute that the injury was a wound and that it was grievous bodily harm. There is also no dispute that the accused’s actions resulted in the wound or grievous bodily harm. I will soon deal with the evidence that the Crown relies on to prove either or both of these elements.
However, it is important to understand that the accused can only be found guilty if his guilt has been proved beyond reasonable doubt and, therefore, the following arise from that direction, taken together with the evidence in this trial:

Firstly, if the accused’s version that the actual wounding occurred by accident is accepted, then he must be acquitted.

Second, if, as the tribunal of fact, I accept that the accused’s version of events might be true, albeit not necessarily fully accepting it as the truth, then he must be acquitted. In other words, if the accused’s version of events is accepted as a reasonable possibility, then the accused must be acquitted of both offences.

Third, in the event that the accused’s version of events is rejected entirely, even if it is found to be a deliberate lie, it must be put to one side. It remains on the Crown, on the basis of evidence, to prove the accused’s guilt beyond reasonable doubt. Even if the accused is found to have lied on the occasions when he gave his version of how the injury occurred, that of itself cannot be used towards the finding of guilt against him.

A finding of his guilt, for either of these offences, can only occur if the Crown, on evidence, has proved each of the essential elements beyond reasonable doubt. There is no doubt but that the injury to the victim was caused by a knife that the accused was carrying. He provided that knife to police when he was arrested. Photos of it are tendered. There appears to be no doubt but that this was the knife that caused the injury to the complainant.
His version of events includes an assertion that when he pushed the victim out of the way, he forgot that he was carrying a knife, and thus, whilst he intentionally pushed her out of the way, and thus came into physical contact with her, the actual injury occurred accidentally or inadvertently.
This is an important part of the version of events given by the accused. Both the Crown and counsel for the accused have submitted, and I accept, that for either offence to be proved, the Crown must prove beyond reasonable doubt that the accused knew that he was carrying a knife at the time he pushed the victim out of the way, and in other words, I would need to reject, as a reasonable possibility, his assertion that he forgot that he was carrying the knife at the time he pushed the victim out of the way.
Another issue that arises from an analysis of the legal propositions in this trial, and ultimately, the facts, is that it may be, after analysing all of the evidence about the circumstances in which the injury occurred, it is simply not possible to make a finding of fact beyond reasonable doubt about how that occurred.
If that is the case, then it would not be open to find the accused guilty of either offence here, because for count 1 is also necessary to be satisfied that he inflicted the wound with the specific intention of causing the victim grievous bodily harm. He has denied doing so and thus his intention would have to be inferred from the surrounding circumstances, and in particular, the circumstances in which the wound was inflicted as a matter of fact. If it is simply not possible to do so on the evidence in the Crown case, ignoring or putting to one side anything that the accused might have said, then it follows that there could be no basis in law from which either of the elements could be proved beyond reasonable doubt, and the accused would have to be acquitted.
For the second count, the Crown must prove beyond reasonable doubt that when the accused inflicted grievous bodily harm, he did so recklessly and in those circumstances, it would also be necessary to be able to find, beyond reasonable doubt, the factual circumstances in which the injury occurred so that it could be determined whether or not the accused turned his mind to the possibility that his actions would inflict actual bodily harm, but went ahead and committed the act anyway. In order to do so, it is necessary, if at the same time setting aside the accused’s version of events, to be satisfied about how the injury actually occurred, so that his state of mind can be inferred from the circumstances.
The second element for count 1, as I have said, is that the Crown must prove beyond reasonable doubt that when the accused wounded the victim, he did so with the intention of causing her grievous bodily harm. It is a specific intention, therefore, that must be proved by the Crown. As a matter of law, intention may be proved in a variety of ways, including from what people say, or what a person says was his intention. That is not the way the Crown seeks to prove intention here.
The Crown seeks to prove that this was his intention by having that inferred or deduced from the surrounding circumstances, and also from the conduct of the accused before, at the time of, and after the offence. It is for that reason that I have said it is essential that the factual circumstances in which the injury occurred can be established beyond reasonable doubt because, in large part, it is from that which the intention for count 1 would need to be inferred.
It is also open to infer that intention from the events immediately beforehand and the events immediately afterwards but in my view, it is almost impossible to infer intention, if, in fact, the Tribunal of Fact is not in a position to find, beyond reasonable doubt, on the evidence in the Crown case, how the injury, in fact, occurred.
In determining the accused’s intention relevant for this first count, issues arise in relation to his psychiatric state and the extent to which that might be relevant, as to whether or not, albeit capable of forming of the necessary intention, in fact, he did so.
In relation to this, expert evidence was called from Dr Allnutt and Dr Eagle. They are both appropriately qualified psychiatrists who conferred with the accused and were called to give this expert evidence. In large part, they agreed about the fact that the accused was suffering from a drug induced psychosis at the time the wounding occurred. A general direction about the way in which the evidence of experts is to be viewed needs to be borne in mind, both in relation to the evidence they have given, and also the evidence, to which I will refer shortly, that was given by Professor Duflou, also in the capacity of an expert witness.
As the Court is aware, expert evidence is called in circumstances that the tribunal of fact is informed about a particular matter of which an expert might have knowledge, but the tribunal of fact might not. Expert evidence does not necessarily need to be accepted by the tribunal of fact, particularly so if the circumstances on which the opinion or expert opinion was formed are not borne out by the evidence. However, where the expert evidence, in large part, has not been the subject of any challenge, either as to the opinion itself or the basis on which it was formed, there would have to be a logical reason for rejecting the evidence of the expert.
The evidence of Drs Allnutt and Eagle appears to be, in large part, in agreement and there was not any challenge to the opinion that either of them gave, or the basis on which they formed their opinions. I accept, as I have said, that each of them is of the view that the accused, at the time, was suffering from a drug induced psychosis in which he had delusions about being followed or observed by others. It may be that this psychotic state was a state that had been of longstanding for him, but they both agreed, and I accept, that at the time the wound was inflicted on the victim, the accused was suffering from a drug induced psychosis.
Section 428C(1) of the Crimes Act 1900 (NSW) provides that evidence that a person was intoxicated, whether by reason of self-induced intoxication or otherwise, at the time of the relevant conduct, may be taken into account in determining whether the person had the intention to cause the specific result necessary for an offence of specific intent. Count 1 is an offence of specific intent and, in combination with the agreed psychiatric evidence that his psychosis at the time was a drug induced psychosis, whether or not he had been in a psychotic state for a considerable period of time beforehand, it is open to take that into account, together with other evidence, in determining whether or not the specific intent to cause grievous bodily harm has been proved beyond reasonable doubt.
The second element for the second count is recklessness. For that offence to be proved, the Crown must prove beyond reasonable doubt that the accused inflicted grievous bodily harm on the victim in circumstances where he was reckless about inflicting actual bodily harm on her. If satisfied beyond reasonable doubt that, at the time of inflicting the injury, the accused realised the possibility that his act may cause actual bodily harm to her, but he went ahead and acted as he did, then recklessness would be proved.
Actual bodily harm is any hurt or injury that interferes with the health or comfort of a person. That could not be in dispute here. If the Crown proves beyond reasonable doubt that the accused was aware that he was carrying a knife, the accused cannot be found to have acted recklessly unless the Crown also proves that he actually thought about the consequences of his act, and at least realised the possibility of actual bodily harm occurring to the victim. The Crown does not have to prove that the accused realised that a serious injury or any particular type of injury might result from his actions. The Crown certainly does not have to prove that the accused realised the possibility that an injury of the type and extent suffered by the victim might occur.

In determining whether or not the element of recklessness has been made out for count 2, if it becomes necessary, the provisions of s 428D of the Crimes Act 1900 (NSW) apply. It is not open to take into account self-induced intoxication in such a consideration, and so in this case, I accept it would not be open to take into account, when determining whether or not recklessness has been proved, the drug induced psychosis from which the accused was suffering at the time the wound and grievous bodily harm was inflicted.
Further, the alternative count only comes to be considered in limited circumstances. In this trial, the alternative count would only fall for consideration if the Crown has proved beyond reasonable doubt that the accused deliberately wounded the victim by cutting her with the knife, but has failed to prove beyond reasonable doubt that he did so with the specific intention of causing her grievous bodily harm. Only then would it be necessary to consider the alternative count. The availability of an alternative count is not an invitation to compromise, and the accused can only be found guilty of anything if the Crown has proved each of the essential elements of whatever count is being considered, and has done so beyond reasonable doubt.
Again, with all of those directions and legal considerations taken into account then, I turn to an assessment of the evidence and a finding, if possible, as to what happened. The first and most important witness in the Crown case to prove what happened is the complainant herself, Ms Lee. Her evidence was the following:

She said she met the accused in February 2017 and not long afterwards he moved into her house, initially as a friend, but then their relationship developed into a domestic one and they were living together in a domestic relationship as at 7 October 2017.

She had seen him with knives out often during the relationship, including the blue handled knife which caused the wound. It was, in fact, an issue of dispute between them and they argued about it. She was concerned that her young daughter who lived in the house with them might hurt herself with one of the knives. He was, in fact, sharpening that knife on the evening of 6 October 2017, the evening before the offence, and she saw that occurring.

She went to bed on the evening on 6 October 2017, leaving him awake, and he did not come to bed that night.

The following morning, she heard a noise in the kitchen, came out to see the accused holding a broken picture frame. It was apparent that he had not slept that night. She told him she was not impressed with him for doing that and they got into an argument about that.

They continued to argue during the course of the morning. She went to the park to get away from him for a while but eventually came back.

She then decided she was going to leave and put her daughter in the car and got into the driver’s seat. Her evidence was that he wanted to go with her, but she said no. Her evidence was that he insisted, and she said that he jumped into the passenger seat and would not get out. She did not remember in her evidence that he brought out a fairly large blue backpack. The fact that he did so is clear from the CCTV footage which was tendered and indicates the area immediately outside the sunroom door of the premises, showing the driveway. I infer from the CCTV footage that in fact he was intending to leave and to get away but he wanted her to give him a lift. The fact that she does not remember that he brought out a backpack when it is relatively large and quite obvious on the CCTV footage, raises some issues about the reliability of her memory of the events. The CCTV gives the impression that they moved back and forward between the screen door of the sunroom and the car and were talking to each other. Her evidence was that he was inside the car, that she had had enough, but did not think she was going to be able to get him out of the car.

She said she wanted to take her young child into the house because it was hot. But her memory that she could not get him out of the car is not accurate. The CCTV video footage shows that at the time she took her child inside the house, he was already outside the car. She acknowledged that her memory of that was inaccurate in her evidence when shown the CCTV footage.

There are two aspects of her evidence of the facts immediately before the wounding, therefore, which indicated a degree of unreliability. I do not accept the victim was being deliberately untruthful in relation to these or any other parts of her evidence. The issue is not her credibility, but her reliability in relation to some aspects of her evidence.
It is not surprising that she may not have had an accurate memory of the events when she gave her evidence in court last week about 18 months after the event. However, this part of her memory was not just inaccurate because it had been 18 months. She gave the same version of events when she gave police her statement on 25 October 2017, not long after the event. It is also not surprising that her memory was unreliable then, given the traumatic nature of the injury that she had suffered and the events in which she was involved, the fact that she had lost so much blood, that it was a life-threatening injury, that she had been in hospital subject to surgical interventions and a period of time in intensive care.
The finding in relation to unreliability is not a criticism, it is simply a matter of fact, that her memory of these surrounding circumstances is not accurate which, when looked at alongside the objective evidence and an assessment of her reliability as a witness, is important.
Also, it seems to me it is of note that, even though her memory of events is unreliable, she does not in her evidence at any stage say that immediately before the incident, the accused was being aggressive. I understand her evidence to be that he was being annoying and persistent and paranoid, certainly, but not physically aggressive. The paranoia in fact was part of the basis of their arguments that day, that is, her ongoing annoyance of his increasing paranoia.
The victim then took her child inside the house. She said she ran quickly inside the house, but that is not necessarily supported by the CCTV footage. In any event, her evidence was that she took her child inside the house, through the sunroom, into the main door of the house and shut the solid timber door behind her. That is a door with a peephole in it and a screen door in front of it, and there is a photograph of it, photograph 12 in exhibit C. The timber door opened backwards into the house, and it opens left to right.
Her evidence was that the accused was kicking the wooden door and that it was loud. She told him to stop doing that because it might fling open and hit her daughter. Her evidence was that he said could he at least have a cigarette and he stopped kicking. Her evidence was that she said, “You won’t be needing them where you’re going” or something to that effect. He replied, “Why did you say that?” and asked if she was threatening his life. She said he asked that question in a normal voice, not an aggressive voice, but he sounded worried about what she had said.
Her evidence was that she ended up opening the door to give him two cigarettes, opened it wide enough to give him the cigarettes, and described that as being wide enough for herself to stand in the opening and otherwise closed the door up against herself. She said that she did that and he just sort of stood there and took the cigarettes from her. She said he was in her face, and they were standing toe to toe with each other. She said he stared at her, that he was wearing a hat with the brim touching her forehead. It is somewhat hard to reconcile this last piece of evidence with the relative heights of the accused compared to the complainant. She is a very small woman, shorter than him. It is hard to see how the brim of his hat could be touching her forehead in the circumstances. That is not an issue that has been raised by either party, however.
By reference to other pieces of evidence, there is some doubt about whether or not her memory of this event is reliable, namely, whether or not the reason she opened the door was to give the accused cigarettes at his request. There is CCTV footage which indicates that shortly before this event, there was a cigarette packet thrown from inside the sunroom towards the car. In her evidence in this trial, the complainant did not remember having done this and did not remember this event but accepted that this was shown and that it must have been at a time when she was inside the premises and the accused was outside. There are stills of this event from the CCTV footage tendered on behalf of the accused. They are in evidence, and I accept that, by way of combination of that portion of the CCTV footage and the stills taken from it, that in fact a cigarette packet was thrown from inside the premises and landed on the windscreen of the car. It would seem somewhat unlikely that, if in fact that occurred, which I accept that it did a few minutes before the events otherwise described by the complainant, that the accused in fact then asked for cigarettes as a reason to gain access to the house.
Further, in relation to the reason that the door was opened, there are telephone records indicating that the complainant sent an SMS to her daughter, Ms Whitney, who gave evidence at the trial, at a time almost immediately before she opened the door. The terms of that SMS were, “It’s all good. I’m just going out for a while.” In context, this would appear to have been in response to an earlier call that the victim had made to Ms Whitney, about 20 minutes or so beforehand, asking if she could come and look after her young daughter, however, Ms Whitney was unable to do so. In context then, an SMS “it’s all good” may or may not have expressed truth, given that that particular terminology is not conclusive of events being positive. However, the additional portion of the SMS, “I’m just going out for a while”, is not likely to have been provided to her daughter, on my finding, unless it was her real intention. There is no reason to say it otherwise, and I accept more likely than not it was her state of mind just before she opened the door.
In those circumstances, I accept that it is more likely that she opened the door because she intended to go out and not because she was intending to give some cigarettes to the accused, and that she has incorrectly remembered the sequence of events in which she gave the accused cigarettes, which in fact had occurred a little earlier at around the time the cigarette packet was thrown in the direction of the car. Not a lot turns on this in my view except for two aspects:

it is some further indication of an unreliable memory of the complainant and;

it would appear to be at least some indication that at that stage she did not harbour any real fear of the accused, given that he was immediately beforehand kicking the door, but she was intending to open it to go out.

I return then to the evidence that she gave about events. Her evidence was that she said in response to the accused’s question, “What did you mean by that?” that it was not a threat. She said that she said this to him in person after she opened the door, that he had an angry look on his face, and that he was standing, staring at her face to face. She was asked what happened next and her evidence was, “I just remembered the knife being against my throat.”
Her evidence was that she did not see the knife beforehand. She did not see it in his hand. She did not see it at any time before she felt it at her neck. She was standing face to face with the accused. She said that the whole incident was very quick. She said that the blade of the knife was pressed against her neck, and when she felt that, she stood there and said words to the effect, “What are you going to do?” She said she felt the knife being pushed into her throat, that he put pressure on the knife, and that as he did so, he said, “You’re dead now.” She said he pushed the knife into her neck for about three seconds and blood squirted out and he said, “Look what you’ve made me do.” He then immediately said “sorry” a few times.
There was a towel applied to her neck. I accept her evidence was that she then walked to get neighbours. This is apparent from the CCTV footage as well. She could not find any neighbours to the left or right or across the road and so she returned. That is the significant evidence of the complainant, Ms Lee, in relation to the circumstances in which the injury occurred. She made a triple-0 call, which was taken over by the accused. That was disconnected for a period and then there was a further triple-0 call made five minutes later by the accused, that went for a longer period of time. That call, the audio of that call and the transcript of those calls and the transcript of those calls, is tendered on this trial.
During the longer call, the complainant was asked a number of questions, which when summarised sought to ask her how the injury to her neck occurred, including whether or not it had been deliberate or accidental. In answer to all of those questions she said she did not know. Her explanation for saying that, in circumstances where at the time she did know, at least something, about what had occurred, was because she did not want to make matters any worse. That seems to me a reasonable explanation for doing so. She also said that while she was on the phone to the triple-0 operator, the accused said to her, did she want him to break the glass on the glass dining table at which they were sitting, so that she could say that she hurt herself on that. She said no, so he did not. She also said that he told her to tell them that she walked into the blade, which she did not do.
She further gave evidence that reinforced her observations of the accused in possession of knives, and also having knowledge of his paranoia and his expressions of that paranoia to her. She gave evidence that he would tell her about cars that he believed were following him. He used to say that he thought people were out the backyard or climbing trees to scope him out. He also had told her that he had been to gaol, and he also told her that one of the reasons that he kept knives on him was because he was concerned about his safety.
As I have gone through this summary of her evidence and I have referred to some of the issues about which her reliability is called into question. There is one other issue in relation to her reliability which I take into account, namely her recollection that the event occurred between 10 and 2, which from the CCTV footage is clearly not accurate. It seems to me that not much turns on that.
Other evidence that she gave which is relevant overall is that the accused attempted to call a person known as Fooey, from outside the premises, before the occasion on which he tried to get inside. Fooey was a person who was a counsellor of some sort, to whom he was able to have recourse, as a person as I understand it, on parole. I accept or I infer from the circumstances that he did so because he was beginning to feel paranoid and was attempting to obtain some help. The phone did not answer and so he was not able to speak to Fooey.
Another aspect of her evidence which I note from the CCTV footage, is that there was a period of time in which, before she went back into the house with her daughter, when the accused was inside the house, in fact in the sunroom, when she, the victim, was inside the car, her daughter was inside the car, and she would appear to have had the keys to the car. At that point if she was concerned, if there was an indication that the accused’s behaviour was aggressive or was causing her immediate concern, it would have been open to her to leave and she did not do that. She agreed that this is what the CCTV footage indicated.
The evidence also indicates that when she went inside the house for the last time, she had her mobile phone with her and in fact it was from that phone that she sent an SMS to her daughter. At that stage the accused was outside, there would appear to be no other calls made for assistance or help and the SMS to her daughter did not seek any such help.
Another piece of evidence given by the victim, which is important, is that she did not move her neck in any way at the time either she felt the knife, on her evidence the first time, or subsequently felt the further pressure of the knife. Her evidence was that this event occurred in a manner of seconds, that she did not move her neck in any way. Her evidence was that she just stood there, and she agreed with the proposition that she made an effort to stay still.
The following is also clear from the timing of the triple-0 calls, together with the CCTV footage. The first triple-0 call was initially made by the victim but then the accused took over. It dropped out. It was after that that the victim decided to try and find help from neighbours, and whilst the accused went outside with her, he did not try to prevent her from going. She went to one side, then to the other, then ahead and then returned, knowing that he would be there.
A further piece of evidence that might call into question the reliability of her memory about what she said was said by the accused, about smashing the table and saying that she walked into a blade, is that she claims that this was said by him whilst they were sitting at the dining table and whilst she was on the phone to triple-0 the second time and they were asking her questions about how the event occurred. She was talking to the triple-0 operator but does not recall whether or not the phone was on speaker, but nonetheless they were sitting together at the table. The audio of the triple-0 call, as I have said is tendered. There is nothing immediately apparent on the audio recording of the triple-0 call to indicate the accused talking in the background, making these requests to her.
I stress that these findings are in relation to an assessment of the victim’s reliability as a witness, or in fact more properly the reliability of her memory of events and things that may or may not have been said, as opposed to any finding in relation to her credibility. As I have said, the Crown case depends on the complainant’s evidence being both credible and accurate, that is reliable. There is no suggestion on behalf of the accused, that she was not doing her best to be honest in her evidence.
So, this seems to be the Crown case - that at some time between 3.35pm and 3.45pm, after the victim opened the door, the accused stopped it from being closed. They had words. He put the blade of the blue knife against the side of her throat and then when she said, “What are you going to do now”, he pressed it into her neck. He said, “You’re dead now”, blood spurted out and thereafter the events occurred involving triple-0 calls and trying to stop the bleeding and the like. I repeat the earlier finding that her evidence was that she did not, during the period that they were both standing at the door, see him holding the knife. She did not see him holding it at all on that day. She did not see him produce it at the doorway. She did not give any evidence of seeing his arm approach her, either holding a knife or at all. Her evidence was that as he stood at the door with a look on his face, she then felt the knife, but she gives no evidence of how it got there or having seen it.
In particular I also repeat that she did not give evidence of moving and in fact she agreed with the proposition that she was careful not to move and to remain still. In her evidence she did not describe any movement of the knife against her neck, other than pressure into her neck. She did not give any evidence of feeling the knife move from the front of her body towards the back of her body along the neck, and again when asked by the triple-0 operator how it happened, simply said, “I don’t know.” As I have said, her explanation for saying that, in the circumstances, is understandable, but it means nothing it seems to me in terms of trying to determine how in fact the wound occurred, it is neutral in relation to that.

The Crown must prove that the wounding was done deliberately by the accused and is therefore necessary to determine how the wound was actually occasioned.
In addition to the evidence of the complainant to which I have referred, there is other evidence, namely attributes of the wound and injury itself in Dr Nittis’ statement and the evidence of Professor Duflou, who gave expert evidence on behalf of the accused as a specialist forensic pathologist. His expertise was not in dispute and in large part, his opinions were not disputed, albeit that broader propositions were put to him by the Crown.
Professor Duflou’s evidence in summary was that it would be uncommon for the cutting edge of a knife, that is the blade, to pass into skin, purely on the basis of a push. A slicing motion in his opinion was much more likely to cause such an injury, but as I understand his evidence there is nothing to indicate from the study of the wound itself and the nature of the injuries, that this was a slicing motion, because there is no tailing, which would be expected in such circumstances. His opinion however from the observations of the wound, the picture and the other scans and material that was in Dr Nittis’ statement, was that there had been movement of the blade from the front to the back of the victim’s body.
His opinion was that a simple slice would not pass through at such a depth and would not display movement or directionality. His opinion was also that the injury was not typical of a stabbing injury, simply because most knives and particularly the knife that is relevant here, was not wide enough for that to be the case. His opinion was that if the victim was standing still and the accused was holding the knife against her neck in a horizontal but stationary position, that it would be unlikely that the pathology as seen would have occurred, because there could not have been able to be sufficient force applied to cause that pathology.
His opinion was that this was the case because even with very sharp blades, a typical knife would not pass through the skin and muscle purely as a result of pressure being applied. This was explored further in cross examination, and he agreed that whilst he could not discount the possibility that the pathology of the wound was caused in that way, it was unlikely, and he gave reasons for that. He said that even the sharpest of ordinary knives in his opinion were unlikely to be able to produce such a result, purely as a result of pressure, and said that it was only likely to have occurred with specialist knives, such as a surgical scalpel. So, in relation to that part of Professor Duflou’s evidence, he did not discount the possibility that the events as described by the victim caused the wound as described in Dr Nittis’ report, but thought that it was unlikely and gave the reasons for that.
The main reason was that simple pressure on the blade of an ordinary knife against the neck was unlikely to have caused a wound of that depth and severity and more importantly, such a wound as that which he saw and described was in part as a result of movement. The complainant’s evidence, as I have said, was that she did not move, after feeling the knife.
Her evidence in my view does not provide the factual basis for the observations made by Professor Duflou of the forward to back movement that he observed in the reports of the wound, and his expert observation that the wound displayed this movement has not been the subject of any challenge. There is no reason to reject that finding.
If there were nothing else then, the Crown case would be the following, as I perceive it - the accused placed the knife against the victim’s throat in a horizontal manner. He pressed it harder and blood spurted out. There is a wound but the appearance of that wound, whilst possibly consistent with the description of facts given by the victim, is unlikely to have been caused in that way.
Of course, those are not consistent with the expert opinion that the wound showed movement of the knife from the front to the back of the victim’s neck. The mere fact that the wound occurred, that it occurred with the knife being held by the accused, is not sufficient in my view to prove that the offender inflicted that wound. There is no other factual basis in the Crown’s case on which it could be proved.
I am however conscious that there are other issues raised in this trial and as this is a judge alone trial, it is necessary for me to address those other issues, even though perhaps a jury may not need to if they arrived at the same conclusion in relation to the lack of detail as to the way in which the injury in fact occurred. The other issue is the accused’s version of events that the wounding occurred by accident. The question is, is it reasonably possible that such an event as described by the accused could cause the injury seen? In summary, his version of events was that in his words, he was spinning out and he was concerned that there were people outside where he was who were after him or following him.
There is more than enough evidence overall to be satisfied that he was in fact suffering from a drug induced psychosis at the time, that he had done so for some time and that this had been evidenced in the past by similar delusions, so that both then and in the recent past, he had harboured such delusional views. In the first triple-0 call in which he spoke to the operator, he told the operator that the victim had a cut on her neck. When he was asked how she got it, he said “I don’t know, just get an ambulance.” He appeared extremely frustrated, upset and worried about the welfare of the victim and, whether or not unreasonably, appeared to be frustrated that he was being asked questions by the triple-0 operator about events that he thought were peripheral when in fact all he wanted was an ambulance for the victim.
The next triple-0 call was at 3.54, about five minutes later. He was asked again how it happened. He then said, “It was an accident, a big accident.” He told them that it was his knife that had caused the injury. He was asked what happened and on page 7 of the transcript of that triple-0 call he said, “I’m spinning out, like fucking, fucking opened the door and I fucking ran past and the fucking, fuck me dead.” He then went on to say, and this is on page 8 of the call, “I ran past her with the fucking survival knife mate.” He then said, “I didn’t fucking mean to but fucking hell, she opened the door and I ran through because the people are after me again.” When he was asked if someone was chasing him, he said, “Yeah it’s not the first time I’ve fucking spun out.” Later, on page 8, he was asked whether the people who were chasing him were there or whether they left. He said, “I don’t know if they were chasing me or not. I don’t know what’s fucking going on in my head man, fucking hell. It’s going on all the time.”
Police arrived at the scene and the evidence is, from the statement of Officer Matusz, that the offender was present, he produced the knife, he threw it onto a table at their request and then punched a brick wall, I accept in a moment of frustration. He said, “I fucking didn’t mean it” and started crying. He said:

“I didn’t mean it. I had ice about lunch time. I was spinning out at her. I was spinning out at the door being locked and she was in my way. When it opened, I ran out the door. I had the knife open in my hand. I went to push her out of the way, forgetting I had the knife in my hand and it happened. People after me, all these different cars and people. I was spinning out.”

In the record of interview that he conducted with the police which went on for a great deal longer, approximately an hour, he gave what in my view amounts to a largely similar or consistent version about the way in which the injury occurred to those two earlier versions, that is, in the second call to triple-0 and the statement he made to Officer Matusz at the scene.
His version of events then from these three sources is that he was outside the door and that the victim had gone inside. He did not in the record of interview when he was providing greater detail, mention anything about asking for cigarettes. He could not have been asked about that in the record of interview because by that stage, the police had not interviewed the victim and would not have been aware of putting such a proposition to him. However, he did not mention it. There would be no reason not to if in fact it were an accurate memory on behalf of the complainant. He provided a lot of other detail to police during the course of the record of interview. Together with the CCTV footage of the cigarette packet being thrown, it causes some further concern about the reliability of the complainant’s memory in relation to this event.
He did tell police that he kicked the door, which was something he did not have to do, but he did. He said that he was spinning out. He said that he just wanted to get inside to get to the safety of his room because he thought people were after him. His version of events is that he had the knife in his hand, at least just before he went in, the door was opened and he forced and pushed his way into the room. As I recall it, there is no evidence about when it was that he actually took it out and placed it in his hand. It is a knife, a folding knife, that requires to be opened by a button. He clearly did that at some stage or other. He did not have it in his hand at any stage when depicted in the CCTV footage. However, none of that precludes the possibility that he took it out of his pocket, opened it and put it in his hand when he was outside the car in circumstances where he believed he was being pursued by people. He clearly did have it in his possession at the time he pushed past or at the time he interacted with the complainant. He demonstrated to police how he was carrying it, which was from his right fist at the back of the fist with the blade extending from the little finger of his right hand and the blade facing forward.
His version of events given to police in the record of interview was that, after kicking the door, the complainant opened it, that they were face to face, that he just wanted to get through, that he moved through the doorway quickly with the intention of getting to the back of the house. He said that she was standing in the doorway facing him with it opened just enough for her body to fit, which I note is consistent with the version of events given by the complainant but in circumstances where, by that stage, the complainant had not given her statement to police and he could not have known that that was what she would have said, that he had to push her out of the way to get through because the doorway was only open a small distance and she was standing in the open part, that he did so with his right hand and that he forgot he still had the knife in his hand when he did so and that, therefore, he cut her with the knife whilst he was moving forward, relatively quickly, and in those circumstances. That, I understand it, is a summary of the version of events that can be gleaned from those three sources.
On behalf of the Crown there is a submission that his version of events would be rejected and also rejected as implausible. One issue is that his evidence is not given under oath and, therefore, is not subject to cross examination. As I have said, that is a matter that I must take into account in determining the weight which I place on the content of that record of interview, but he is entitled to have it taken into account in circumstances where he was entitled to exercise the right to silence but engaged in the record of interview, nonetheless.
The second basis on which it is suggested that his version would be rejected is a proposition that the demonstration of his actions that he gave during the course of the record of interview does not fit the version of events taken into account by Professor Duflou as being consistent with the pathology of the wound he saw and that the demonstration he gave on three occasions during the record of interview seemed to indicate an upward movement or something similar, not a forward movement that he otherwise describes. I do not accept that that is the case. There is no room, in my view, for finding that when he demonstrated during the record of interview what he claimed to have done and when he did that in the record of interview on three different occasions, he was purporting to be precise.
On one occasion he was sitting down and so he could not in any way attempt to replicate with precision what he said occurred and, therefore, it would be the wrong angle, and, in any event, his arm would have to be moved in a way that was relative to a table in front of him. On another occasion he demonstrated it while standing up but with a wall in front of him and thus he was not able to move his arm fully in front of him. It is, in fact, the case that the demonstrations he made were not entirely the same on all three occasions but nor do I accept that he was purporting to be precise in the demonstrations that he made at the time and that much is clear from the emotional way in which he presented during the course of the interview, if nothing else.
It is also submitted that I would reject his version of events because his version became embellished on the different occasions that he gave it. I do not accept that to be the case. In fact, I accept that his version of events, in large part, was consistent, albeit that he gave more detail as he was asked more questions about it, which gave rise to the need for detail.
It is also argued that I would reject his evidence that he forgot he was holding a knife. As I have said, both parties have submitted that, in relation to this, the Crown needs to prove beyond reasonable doubt that the accused was aware that he was carrying a knife. I do not accept that the Crown has done so. I accept his evidence that he forgot that he was carrying a knife is reasonably possible on the evidence in this trial. It may not be something that would be accepted as reasonably possible in the ordinary course of human experience, that is that (a) a person would be armed with a knife and (b) that a person would forget that they had it in their hand as they rushed past someone else, but this accused and the circumstances in which he lived were not of the ordinary course of human experience. He was a person, on the expert evidence, who suffered from paranoid psychosis, probably had done so for many years and, as I have said, it was a drug-induced psychosis. He had used drugs at lunchtime two or three hours beforehand.
The evidence was that he had demonstrated similar psychotic symptoms on several occasions to a number of people, including the victim and her daughter, and the overview of the psychiatric evidence undertaken by Drs Allnutt and Eagle is expert evidence in support of the fact that he was, in fact, suffering from drug-induced psychosis at the time. The psychosis presented itself in terms of paranoid delusions about people following him in cars, armed people following him, SAS troops following him, people being in the back yard and in trees trying to scope him. He told the complainant’s daughter about this. He told the complainant about this. In fact, it was, in part, this paranoid behaviour that was, to an extent, the cause of the argument that they had on the morning of the incident.
It was made worse, I accept, on the evidence of the psychiatrists, by his use of ice at lunchtime and lack of sleep the night before. He was also in the habit of arming himself with a knife and this much was acknowledged by the complainant, and they had arguments about it. He had sharpened the knife the night before. He told the triple-0 operator almost immediately after the event that he thought he was being chased, that he needed to get inside, which was the reason why he had tried to get in the door. It is reasonably possible that it was for this reason that he armed himself with the knife and he was also a person who had been to gaol and his experiences in gaol added to his paranoia.
In opening the knife and putting it in his hand the way he did, it is reasonably possible that, in those circumstances, in the midst of paranoid delusions and in circumstances where his primary objective was to get through the door into what he thought was the safe haven of the back of the house, he forgot he was holding it when he rushed through the door. Also, he was living in a drug house in which a number of people came and went frequently and that was, in large part, the reason for the CCTV at the front door. This is not the usual human experience, but this issue must be determined from the perspective of his experience.
In those circumstances, whilst I accept that which is obvious, namely, that he was in fact carrying a knife, I also accept in the circumstances it is reasonably possible that the wounding and/or grievous bodily harm of the victim happened in exactly the way he told the triple-0 operator and Officer Matusz and subsequently the other police during the course of the record of interview.
Further, in relation to this and, in fact, in support of this, I return to the evidence of Professor Duflou. His expert evidence was that it was reasonably possible that the way in which the accused describes what occurred provides an explanation for the wound as it was described and from the scans and picture that he saw. He agreed in cross-examination that it was dependent, to an extent, on the relative positions of bodies but his opinion was not altered by his attention being drawn to what was said to be somewhat inconsistent or different demonstrations that the accused gave during the course of the record of interview.
I accept Professor Duflou’s opinion that it was reasonably possible that the wound was caused when the accused pushed the complainant out of the way whilst trying to get inside in a state of psychotic delusion, that he pushed her with his right fist or hand, that he had the blade of the blue knife extending from that fist, that he forgot he was carrying the knife and that, in pushing past her in that way, in general terms in the way demonstrated by him during the record of interview, the blade moved from the front to the back of her neck and caused the injury as it was seen and described by Dr Nittis.
I thus accept that his explanation is reasonably possible, even if there might be some aspects that are not necessarily accepted but, nonetheless, accept that, at the very least, his version of events is reasonably possible taken together with the expert evidence of Professor Duflou about the appearance of the wound.
Even if I be wrong about that, and if it were necessary to put completely aside the version of events given by the accused, nonetheless, as I have already found, I am not satisfied on the evidence led in the Crown case and, in fact, the lack of detail about how the event occurred and the detail that there is being the physical circumstances which are likely to have caused the wound as was seen and described by Dr Nittis, that in those circumstances the Crown is capable of proving either of the offences beyond reasonable doubt and, for that reason, the accused is acquitted on both charges.

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Decision last updated: 17 November 2022

Medium Neutral Citation:	R v Scroop [2020] NSWDC 953
Hearing dates:	Monday 29 June – Friday 3 July 2020, Monday 6 July 2020.
Date of orders:	Friday 10 July 2020
Decision date:	10 July 2020
Jurisdiction:	Criminal
Before:	Tupman DCJ
Decision:	The accused is acquitted on both counts.
Catchwords:	CRIME – Judge alone trial – Judgment - Two counts on indictment – Wounding with intent to cause GBH – Cause GBH being reckless as to causing ABH – Victim and accused in domestic relationship – Victim suffered deep wound to her neck by a knife – Wound caused by accused who had knife in his hand when he pushed victim out of the way and where the knife made contact with victims neck - Medical evidence finds it is reasonably possible that the wound was created unintentionally when accused pushed past victim.
Legislation Cited:	Crimes Act 1900 (NSW): ss 428C(1), 428D.
Category:	Principal judgment
Parties:	Regina (The Crown) Kevin Scroop (The Accused)
Representation:	Counsel: Mr. T. Buckingham (The Crown) Mr. J. Brock (The Accused) Solicitors: Mr. S. Chua (The Crown) Ms. H. Rake (The Accused)
File Number(s):	2017/00320997