R v Walker
[2021] ACTSC 42
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | R v Walker | ||||
| Citation: | [2021] ACTSC 42 | ||||
| Hearing Date: | 24 March 2021 | ||||
| Decision Date: | 25 March 2021 | ||||
| Before: | Mossop J | ||||
Decision: |
| ||||
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Trial – trial by judge alone – attempted murder – – not guilty of attempted murder – intention to kill not established | ||||
| beyond reasonable doubt – intentionally inflict grievous bodily harm – mental impairment – special verdict – not guilty of inflicting | |||||
| grievous bodily harm by reason of mental impairment | |||||
| Legislation Cited: | Crimes Act 1900 (ACT), ss 12(1), 19, 302, 324 Criminal Code 2002 (ACT), ss 27, 28, 44 Mental Health Act 2015 (ACT), ss 80, 85 | ||||
| Cases Cited: | R v Islam [2011] ACTSC 32 R v Mulcahy [2010] ACTSC 98 R v Sidaros (No 5) [2020] ACTSC 354 R v Yon Soo Choe [2005] ACTSC 83 | ||||
| Parties: | The Queen (Crown) Russell Walker (Accused) | ||||
| Representation: | Counsel | ||||
| R Christensen (Crown) | |||||
| J White SC (Accused) | |||||
| Solicitors | |||||
| ACT Director of Public Prosecutions (Crown) ACT Legal Aid (Accused) | |||||
| File Numbers: | SCC 41 of 2020 | ||||
| SCC 42 of 2020 | |||||
| MOSSOP J: | |||||
| Introduction |
1. The accused, Russell Walker, pleaded not guilty to the following charges:
(a) count one: attempted murder (SCCAN2020/46) contrary to s 12(1) of the Crimes Act 1900 (ACT) by virtue of s 44 of the Criminal Code 2002 (ACT). (b) count two: in the alternative, intentionally inflicting grievous bodily harm (SCCAN2020/47) contrary to s 19 of the Crimes Act 1900 (ACT).
2. In relation to the charge of attempted murder, the plea was a plea of not guilty, or in the alternative, not guilty by reason of mental impairment. In relation to the charge of intentionally inflicting grievous bodily harm, the plea was of not guilty by reason of mental impairment.
Procedure
3. On 16 February 2021 the accused made an election for trial by judge alone.
4. The evidence at trial was documentary and was tendered by consent. It involved a Statement of Facts which were agreed and admitted by the accused as well as various statements, transcripts, photographs and reports. Those statements, transcripts, photographs and reports were tendered on the basis that they were not intended to contradict the Agreed Statement of Facts. The additional evidence did, however, permit submissions as to additional factual matters relevant to the issues in the trial.
5. The substantial issues at trial were whether or not:
(a) the Crown had established beyond reasonable doubt that the accused intended to murder the victim as opposed to intending to intentionally inflict grievous bodily harm upon him; (b) the accused had established on the balance of probabilities that he was not criminally responsible because of the operation of s 28 of the Criminal Code.
6. I have given myself the directions as to the nature of a criminal trial set out in R v Mulcahy
[2010] ACTSC 98 at [13]–[24] and the directions about expert evidence set out in R v
Sidaros (No 5) [2020] ACTSC 354 at [23], [24] and [26] adjusted so that they refer to the expert witnesses who gave evidence in the present case.
Elements of the offences
7. In relation to the charge of attempted murder, s 44 of the Criminal Code requires that a person carries out conduct that is more than merely preparatory to the commission of the offence attempted. Section 44(5) provides that intention and knowledge are the fault elements for each physical element of the offence attempted. That has the effect that, for the purposes of a charge of attempted murder, the relevant physical element of the offence attempted is the causing of death and the Crown must establish intention to cause that death as opposed to the other fault elements in s 12(1)(b)-(c) of the Crimes Act that would be available if the charge was of murder rather than attempted murder: see R v Yon Soo Choe [2005] ACTSC 83 at [7]-[13].
8. This means that the relevant elements on the charge of attempted murder are:
(a)
the accused carried out conduct that is more than merely preparatory to the commission of the offence of murder;
(b) the accused intended to carry out that conduct; (c) the accused intended to engage in conduct; and (d) the accused intended by such conduct to cause the death of another person.
9. In relation to the charge of intentionally inflicting grievous bodily harm, the relevant elements are:
(a) the accused engaged in conduct; (b) the accused intended to engage in that conduct; (c)
the conduct resulted in grievous bodily harm being inflicted on another person; and
(d) the accused intended to inflict grievous bodily harm on the person.
Facts
10. The Agreed Statement of Facts established the following facts.
11. The victim of the offending, who was aged 41 years old at the time of the offending, knew the accused as the partner of his friend and work colleague, CU. The victim was on cordial terms with the accused.
12. CU had been in a long-term relationship with the accused, however, by June 2019 their relationship was intermittent. CU resided at an address in Bonython, along with her and
the accused’s son. The accused would sometimes stay with CU in Bonython and would
| come and go from that address. MU, a friend and work colleague of both CU and the victim, also lived at the address in Bonython. |
13. On or around 22 June 2019 the accused was staying with a girlfriend, OX, and began exhibiting paranoid delusions. The accused was saying that people were coming to get him
(“Commandos”) and that he wanted to kill himself. The accused was also hearing voices,
crying and was unable to sleep.
14. On 23 June 2019 police were notified of welfare concerns in relation to the accused. The
police attended OX’s residence and the address in Bonython but were unable to locate the
accused.
15. At around 6:40pm on 27 June 2019, the police were called to a store near the Tuggeranong Bus Interchange by the store owner after the accused entered the store and told the store owner he wanted to kill himself. Constables Glossop and Bewick found the accused in a highly agitated state. They apprehended the accused under s 80 of the Mental Health Act 2015 (ACT) and he was taken to Canberra Hospital by ambulance. The accused arrived at Canberra Hospital at 8:11pm on 27 June 2019.
16. After an examination by the Canberra Hospital’s Emergency Department, the accused was
involuntarily detained pursuant to s 85 of the Mental Health Act 2015 (ACT). The accused was reviewed in the early hours of 28 June 2019. The patient notes record that the accused
“initially appeared to be minimising him symptoms however became suspicious, agitated
and paranoid”. At 5:15am the accused was transferred to the Adult Mental Health Unit.
17. At 2:13pm the same day, the accused was reviewed by a psychiatrist and deemed suitable for discharge. The accused was discharged at 3:40pm with a taxi voucher and travelled to the residence in Bonython.
18. A plan had been made for the victim to have dinner at the Bonython residence with the
residents and MU’s father. The son of CU and the accused was not at the address as he
| was staying with a grandparent. The accused was present when the victim arrived for dinner at approximately 8:00pm. |
19. Shortly after the victim arrived at the Bonython residence, the accused entered the
loungeroom from CU’s bedroom. CU, MU and MU’s father were all in the loungeroom. The
accused and the victim greeted each other but soon after that the victim formed the
impression that the accused was looking at him “all funny”. The accused said words to the
| effect that he thought the victim was trying to take his family away from him. The accused spoke at an elevated volume. |
20. The accused later asked the victim to follow him into one of the bedrooms at the address. Once they were in the bedroom, the accused threatened the victim with a knife by pushing it against his chest and saying words to the victim. CU then entered the bedroom and intervened, after which the accused, the victim and CU returned to the loungeroom.
21. Not long after this, at approximately 9:00pm, the victim and others from the gathering went outside the premises to the patio to smoke a cigarette. The group was seated on white plastic chairs. The accused joined the group outside, initially sitting down on the step of the sliding door. The victim and the accused entered into a conversation.
22. The accused then stood up and the victim observed that he was holding a knife. The accused moved with the knife and directed words towards the victim. The victim froze. The accused moved towards the victim who was seated on one of the plastic chairs, moving past the others and a table to get to him.
23. The accused then stabbed the victim once with the knife. The knife had a downward
trajectory. It penetrated approximately 15 cm into the victim’s upper chest, slightly to the
left of centre.
24. The accused pulled the knife from the victim’s chest and cried out “Oh my God, I’ve stabbed
him! Oh my God, my God”. The victim, who had immediately begun to bleed heavily from
his wound, was grabbing his chest and leaning back in his chair. One of the other people
at the premises ran inside to retrieve a blanket and used it to apply pressure to the victim’s
wound. The accused shouted “help, help” and “where’s the phone?”
25. CU called 000 at 9:10pm to report the incident. At 9:11pm the accused called 000.
26. Before the police arrived at the address, a neighbour went to the premises after hearing
the accused’s calls for help. The neighbour met the accused in the driveway and the
accused reiterated his calls for help. The accused was acting erratically. He asked to
borrow the neighbour’s cars keys so that he could take his friend to the hospital as the
ambulance was yet to arrive.
27. At 9:24pm the police and ambulance arrived at the premises. The police found a black handled kitchen knife on the patio.
28. A police constable at the scene spoke with MU’s father. He spoke to the constable in
French and told her the following:
He was in the back room of the house resting when he heard shouting. The shouting was in
English and he didn’t understand what was being said. He did not see what happened.
29. The accused was arrested at the scene and placed into a caged vehicle. He was intermittently yelling and banging the sides of the cage or being calm and quietly lying on
the floor of the cage. The accused’s yelling was predominantly incoherent, however, he
was heard to be questioning why he was handcuffed and calling the police “Comancheros”.
At approximately 11:05pm the accused arrived at the ACT watch house.
30. The victim was taken to Canberra Hospital with life-threatening bleeding and injuries to underlying structures caused by the penetrating stab wound. The victim would have died as a result of his injuries without emergency medical intervention and surgery.
Attempted murder
31. Dealing first with the charge of attempted murder I am satisfied beyond reasonable doubt that the first, second and third elements of the offence are made out. The stabbing was an act that was more than merely preparatory. The accused intended to engage in that act. The intentional act of the stabbing also establishes the third element of the offence. That leaves the question of whether the remaining element, that of intention to kill the victim is established, beyond reasonable doubt.
32. The Crown relies upon five aspects of the evidence which it submitted established beyond reasonable doubt that the intention of the accused was to kill the victim.
33. First, the Crown submitted that the stabbing occurred in the context of the earlier confrontation with the victim in the bedroom. That earlier confrontation involved the use of a knife by the accused towards the victim.
34. Initially the accused exhibited aggression towards the victim in the lounge room when he got a bit aggressive and suggested that the victim was trying to take his family away from
him. About 10 minutes later the accused was described as getting “a bit angry” with the
victim and asked the victim to go into the bedroom with him. The accused produced a knife and pointed it at his chest. He asked the victim what he was trying to do. He continued to speak to him for some time with the knife against his chest until CU came in and she ended the incident.
35. The Crown submitted that what occurred in the lounge room and in the bedroom established that the stabbing of the victim did not occur as an isolated and random attack but rather was preceded by the accused forming an attitude of confrontation and aggression towards the victim.
36. Counsel for the accused submitted that there was no continuity between the irrational conduct in the bedroom and the equally irrational subsequent stabbing. He also submitted
that the pushing of the knife into the victim’s chest in the bedroom did not cease only
because CU intervened, but rather that the victim’s evidence was that the knife was held
against his chest for some time until CU came in. The accused submitted that if there was an intention to kill the victim during that incident then he had the opportunity to do so prior to the intervention of CU.
37. Second, the Crown submitted that the knife was a large knife capable of inflicting injury that could cause death and was used by the accused in a manner consistent with an intention to cause death. That was said to contrast with the paring knife used in R v Islam [2011] ACTSC 32 (see at [68]). The Crown pointed to the size of the knife and the fact that there was evidence from victim that it was waved around behind the others prior to it being used. It also pointed to evidence of the victim that, before the stabbing, the accused had
said to the victim “You’re dead. You’re dead. I’m going to do something to your mother. Um I’m going to get rid of your brother”. He waved the knife around with a motion indicating
a throat being cut, prior to coming up and stabbing the victim.
38. Counsel for the accused submitted that the size of the knife did not advance the matter as it was an ordinary household knife rather than having features indicative of an intention to kill. Further, he submitted that it was an agreed fact that there were other persons present and that the accused had to go around them to make the attack. That was inconsistent with the proposition that the accused waited until they were not present before making his attack.
39. Third, the Crown pointed to the area of the body being stabbed. The evidence was that the victim suffered a penetrating chest wound to the anteromedial chest wall with a transection of the left internal mammary artery. The depth of the penetrating wound was approximately 15 cm. The Crown submitted that this was clearly a deep wound and one inflicted with a significant degree of force. The Crown submitted that this and the fact that the chest was the target of the attack is consistent with an intention to inflict an injury capable of causing death.
40. Counsel for the accused submitted that although the injury was clearly a very serious one, no particular conclusion could be reached about the amount of force that was necessary to inflict the wound for the purposes of deciding between an intention to kill and an intention to inflict grievous bodily harm. He submitted that if there was an intention to kill then other methods of attack would have been more effective.
41. Fourth, the Crown points to the words said by the accused immediately prior to the stabbing. The evidence of the victim was that:
… [The accused] came out and he flashed the knife behind [CU] and [MU] that were sitting
there, um, with their father, and saying, um in a whispered voice, “You’re dead”, and rah, rah
rah. I got really nervous because then another car drove up and then was sitting out the
front… And anyway, oh, all I remember, then he came up to me and stabbed me.
…
And, “I’ve come - I’m going to hurt your mother and brother”. He, um, also said that too.
42. At this time the accused was making stabbing movements with the knife and waving it around with a motion of a throat being cut. The victim described the accused using a quiet voice and that his demeanour was very confrontational. The Crown submitted that the use of a quiet voice is consistent with the accused not wanting the others in the group to be aware of his intention, although that submission appeared to be inconsistent with the agreed fact that at least some of the others were present at the time of the attack.
43. Counsel for the accused submitted that, although the words used were threatening, they were irrational and not sequential upon the earlier threats or conversation. He submitted that the accused alternated between shouting and using a quiet voice.
44. Fifth, the Crown pointed to the circumstances immediately after the stabbing. The Crown accepts that there is no evidence that the accused attempted to inflict any further stab wounds on the victim. However, the Crown submitted that the nature and location of the wound was such that the accused could have a level of confidence that he had inflicted sufficient injury to cause death. It also submitted that there were other people available to intervene and assist the victim and, as a result, there was no further opportunity to inflict stab wounds upon the victim. The Crown submitted that the attempts by the accused to call 000 and administer first aid to the victim did not detract from the significant evidence establishing intention to kill the victim at the time.
45. Counsel for the accused pointed to the evidence that the accused immediately called for help, which reaction was inconsistent with an intent to kill. In relation to the presence of others, he pointed to the absence of evidence that any of them intervened in a way so as to prevent the continuation of the attack by the accused.
46. Counsel for the accused also pointed to the absence of any motive to kill the victim, that he could easily have killed the victim had he intended to do so, but instead did not follow through and frantically tried to summon aid for the victim.
47. I am not satisfied beyond reasonable doubt that the accused intended to kill the victim as opposed to inflicting very serious injury upon him. The aggregation of matters relied upon by the Crown are not sufficient to exclude the reasonable possibility that the accused intended to inflict grievous bodily harm but did not have an intention to kill the victim.
48. The first matter, the earlier confrontation with the victim, involving as it did the threatening use of a knife, is consistent with a subsequent intention to kill but also with an intention to inflict grievous bodily harm upon him.
49. The second matter, the nature of the weapon, is consistent with an intention to kill but also an intention to inflict grievous bodily harm. Had the knife been a smaller one then as in R v Islam, the size of the knife may have been significant, however, the size of the knife itself does not provide significant support for inferring an intention to kill rather than to inflict grievous bodily harm.
50. The third matter, the area of the body stabbed, is supportive of drawing an inference of an intention to kill but does not exclude the possibility that such an intention was not present. It must be borne in mind that on any view, the intention to attack only arose a short time prior to the attack and was a product of disordered thinking. That tends to reduce the significance of the location of the stab wound. Further, I do not consider that much can be made of the degree of force used. While some force must have been used, the nature of that force does not point strongly to an intention to kill as opposed to inflict grievous bodily harm.
51. The fourth matter, the words said by the accused, are supportive of an intention to kill but not inconsistent with the use of threatening language and an intention to inflict grievous
bodily harm. The fact that threats were made against the victim’s mother and brother as
well as the victim himself tends to lessen the significance of the threat to the victim, allowing them to be more readily characterised as hostile aggressive talk rather than a statement of actual intention.
52. The fifth matter, the conduct after the stabbing, tends to cast doubt upon the existence of an intention to kill. Although the post-attack conduct could also be consistent with immediate regret on the part of the accused, it tends to cast doubt on there being an intention to kill as that is less likely to have been as transient as the actions of the accused indicate any intention was.
53. Taken altogether, the five aspects of the evidence are not sufficient to permit me to conclude beyond reasonable doubt that the accused had an intention to kill the victim as opposed to inflict grievous bodily harm upon him. While, taken together, they might support a conclusion that there was a transient intention to kill the victim, they cannot exclude the reasonable possibility that the only intention was to grievously injure the victim.
54. For those reasons the verdict on count one must be “not guilty”.
Intentionally inflict grievous bodily harm
55. On this charge, I am satisfied beyond reasonable doubt of each of the elements of the offence. The issue is whether or not the accused has proven on the balance of probabilities that he was suffering from a mental impairment so as to relieve him of criminal responsibility.
56. Section 28(1) of the Criminal Code provides that a person is not criminally responsible for an offence if, when carrying out the conduct required for the offence, the person was
suffering from a “mental impairment” and that mental impairment had one of the following
effects:
(a) the person did not know the nature and quality of the conduct; (b) the person did not know that the conduct was wrong; or (c) the person could not control the conduct.
57. For the purpose of s 28(1)(b) above, s 28(2) provides that “a person does not know that
the conduct is wrong if the person cannot reason with a moderate degree of sense and composure about whether the conduct, as seen by a reasonable person, is
wrong”.
58. The starting point is that a person is presumed not to have been suffering from a mental impairment: s 28(4), and that presumption is displaced only if it is proved on the balance of probabilities that the person was suffering from a mental impairment: s 28(5).
59. Mental impairment is defined in s 27 of the Criminal Code as follows:
mental impairment includes senility, intellectual disability, mental illness, brain damage and
severe personality disorder.
60. For the purposes of that definition, “mental illness” is defined as follows:
mental illness is an underlying pathological infirmity of the mind, whether of long or short duration and whether permanent or temporary, but does not include a condition (a reactive condition) resulting from the reaction of a healthy mind to extraordinary external stimuli.
61. The issues are therefore:
(a) whether or not the accused was suffering from a mental impairment; and (b)
whether or not that mental impairment had one of the three consequences required by s 28 (see [56] above).
Mental impairment
62. The evidence on this issue was provided in reports by forensic psychiatrists Dr Richard Furst and Dr Stephen Allnutt. These reports were admitted as part of the Crown case and the doctors did not give oral evidence and were not cross-examined.
63. Dr Furst, who had interviewed the accused, unequivocally found that the accused was suffering from schizophrenia at the time of the offending. He found that the accused also satisfied the requirements for a diagnosis of substance use disorder and personality disorder.
64. Dr Allnutt’s first report was not conclusive. He had not clinically examined the accused and said “My impression is that over time clinicians have come increasingly to the view that
while substances are contributing to his psychosis … he has an underlying diagnosis of schizophrenia … Their conclusions in my view are reasonable based on the
documentation, but I cannot be definitive. It would be up to the court to determine whether the opinion of the psychiatrists that he has a schizophrenia that have interviewed him and
are treating him in the prison, is valid and reliable”. In his second report, having spoken to the accused’s treating psychiatrist Dr Kasinathan, Dr Allnutt concluded that “in my opinion [the accused] has chronic paranoid schizophrenia”.
65. Counsel for the accused also pointed to the facts surrounding the offending which were consistent with the accused suffering from the effects of schizophrenia at the time that the stabbing occurred. They were relevantly as follows:
(a) On 22 June 2019 the accused was observed exhibiting paranoid delusions saying that “commandos” were coming to get him. He was suicidal. Police were
subsequently notified of concerns for his welfare by his mother but were unable
to find him.(b) On 27 June 2019 the accused was found in a distressed state at the Tuggeranong bus interchange. He was highly agitated and lay on the road. Looking at Constable Glossop he said “He is not a police officer, he is a
Comanchero, Comanchero’s are out to get me”. (He also told Constable Bewick
that the lights at the bus interchange were interfering with the thoughts in his head.) He was taken into custody pursuant to the provisions of the Mental Health Act 2015 (ACT) and taken to the Canberra Hospital where he was
involuntarily detained. There he was observed to be “suspicious, agitated and
paranoid” but discharged on 28 June 2019. Dr Furst expressed the opinion that
he was “prematurely discharged … less than five hours prior to the events in
question”. The stabbing occurred that evening.
(c)
Immediately prior to the stabbing the accused was acting irrationally and making irrational accusations. After the stabbing he immediately desisted and tried in a confused way to summon assistance. The statements that he made in his 000 call do not make a lot of sense and are consistent with disordered thinking.
(d)
When he was arrested he asked why no one else was under arrest and made other statements which in the circumstances did not make sense in light of what had just occurred.
(e)
The incoherent behaviour of the accused is not explained by the ingestion of illicit substances. While there is some evidence that he used heroin four days prior to the stabbing and methamphetamine five days prior and some other general references to the possibility of him having used drugs in the days prior to the offence, there is no probative evidence that drugs were still affecting his behaviour. His history of discharge from the Canberra Hospital and travel to the Bonython residence would also not support any inference that he was drug affected at the time.
(f)
The evidence establishes that following his arrest he continued to have auditory hallucinations, perceive that he was receiving messages from the television and the radio, suffer ongoing paranoia and ongoing psychosis. Those facts tend to support the proposition that he was suffering from the effects of schizophrenia at the time of the stabbing.
66. In light of this evidence, and in particular the uncontradicted evidence of Dr Furst, I am satisfied on the balance of probabilities that at the time of the stabbing the accused suffered from a mental impairment within the meaning of s 28 of the Criminal Code (see [56] above).
Consequences of mental impairment
67. That leaves the issue of whether or not that mental impairment had one of the consequences referred to in s 28(1) of the Criminal Code. The opinion of Dr Furst was that the mental impairment had the effect that the accused did not know the conduct was wrong
and that he probably lacked the capacity to control his conduct. Dr Allnutt’s opinion is
consistent with Dr Furst, agreeing that he was “unable to reason with a moderate degree
of sense and composure about whether the conduct is seen by a reasonable person was
wrong”. That conclusion picks up the language of s 28(2) set out at [57] above and leads
to the conclusion that the accused did not know that his conduct was wrong.
68. In light of this expert evidence I am satisfied on the balance of probabilities that at the time of the offending the accused was suffering from a mental impairment that had the effect
that he “did not know that the conduct was wrong” within the terms of s 28(1)(b). As a
consequence, he is not criminally responsible for the offence of intentionally inflicting grievous bodily harm and pursuant to s 28(7) the appropriate verdict is the special verdict that the accused is not guilty of the offence because of mental impairment.
69. I note that the evidence of Dr Furst and Dr Allnut would probably also support the conclusion that the accused was unable to control his conduct (s 28(1)(c)). However, in light of the conclusion that I have reached in relation to s 28(1)(b) and the less definitive conclusions reached by experts in relation to the issue presented by s 28(1)(c), it is not necessary to reach a conclusion on that point.
Orders
70. The orders of the Court are:
1. On count one (SCCAN2020/46) the verdict of not guilty is to be entered.
2. On count two (SCCAN2020/47) the special verdict that the accused is not guilty because of mental impairment is to be entered.
71. The proceedings will be adjourned to a date to be fixed so that an order under s 324(2) of the Crimes Act can be made and to hear submissions as to the appropriate nominated term for the purposes of s 302 of the Crimes Act.
I certify that the preceding seventy-one [71] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.
Associate:
Date: 26 March 2021
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Amendments
| 26 March 2021 | “SC” added to name of counsel | Cover page |
“SSCAN” amended to “SCCAN” Cover page;
Paragraph [70]Anonymisation for consistency with a suppression Throughout order and for publication on the internet
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