R v Walters
[2022] SASC 156
•22 December 2022
Supreme Court of South Australia
(Criminal)
R v WALTERS
Criminal Trial by Judge Alone
[2022] SASC 156
Reasons for the Verdicts of the Honourable Justice Stein
22 December 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER
On 23 May 2020, after consuming drugs and alcohol, the accused and the victim engaged in an altercation after which the victim was found dead. The accused was charged with murder of the victim.
Held: the accused found not guilty of murder but guilty of manslaughter by unlawful and dangerous act.
Juries Act 1927 (SA) s 7(1); Evidence Act 1929 (SA); Criminal Law Consolidation Act 1935 (SA) ss 15, 267A, 268, referred to.
R v Gardiner [2013] SASCFC 53; R v Baden-Clay (2016) 258 CLR 308; Plomp v The Queen (1963) 110 CLR 234; Bromley v The Queen; Karpany v The Queen (1986) 161 CLR 315; Royall v The Queen (1991) 172 CLR 378; R v Moffatt (2000) 112 A Crim R 201; R v McCarthy (2015) 124 SASR 190; R v Hallett [1969] SASR 141; Mamote-Kulang of Tamagot v The Queen (1964) 111 CLR 62 ; Campbell v The Queen [1981] WAR 286 ; R v PL (2009) 261 ALR 365 ; R v Gardiner [2015] SASCFC 107; Ryan v The Queen (1967) 121 CLR 205; R v McDonald (2015) 123 SASR 313 ; R v Perks (1986) 41 SASR 335; Kural v The Queen (1987) 162 CLR 502 ; Peacock v The King (1911) 13 CLR 619 ; Viro v The Queen (1978) 141 CLR 88; R v Wingfield (1994) 176 LSJS 14; R v Roberts (2011) 111 SASR 100 ; Police v Lloyd (1998) 72 SASR 271 ; R v Jones (2017) 129 SASR 522 ; R v Miller (2019) 134 SASR 155 ; R v Thiyagarajah [2019] SASC 84 ; Masciantonio v The Queen (1995) 183 CLR 58 ; Wilson v The Queen (1992) 174 CLR 313 ; Arulthilakan v The Queen (2003) 203 ALR 259 ; R v Childs (2007) 98 SASR 111 ; R v B, MA (2007) 99 SASR 384 ; Trezise v Police [2009] SASC 209, considered.
R v WALTERS
[2022] SASC 156Criminal: Trial by Judge Alone
STEIN J: On a number of days leading up to 23 May 2020, the accused, Mr Walters, consumed methamphetamine. On 23 May, Mr John McLellan and Mr Walters spent time together, travelling into the Adelaide central business district by taxi and thereafter returning separately to a unit in Gilberton. Both consumed illicit drugs and alcohol. In the early evening, there was an altercation between them and, at about 9.45 pm, Mr John McLellan was found dead. Mr Walters was charged with the murder of Mr McLellan.
Identity was not in issue. The main issues in contention were the number of blows inflicted by Mr Walters upon Mr McLellan, the circumstances of such blows, whether those blows were the cause of death, whether any blows that caused death were accompanied by the requisite intent and whether Mr Walters was acting in self defence or was provoked by Mr McLellan.
The potential impact of intoxication on each of Mr Walters, Mr McLellan and key witnesses featured as a significant issue in the trial.
Prosecution case summary
The prosecution case was that Mr Walters murdered Mr McLellan on the evening of 23 May 2020 by beating him to death. Prosecution alleged the substantial cause of death was blunt force trauma and Mr McLellan suffered at least 30 or 40 blows to his head or body. I will refer to the events said to have occurred in relation to the alleged beating as the “incident”.
At the time of his death, Mr McLellan was in his sixties,[1] he had emphysema and used a walking stick. Mr McLellan was substantially affected by alcohol, cannabis, heroin and some methamphetamine. Prosecution say Mr Walters, 47 years old and a solidly built man, had been using methamphetamine and drinking alcohol in the preceding days, which may have contributed to his aggression and the violence perpetrated on Mr McLellan who was said to be defenceless, given his relative frailty.
[1] His precise year of birth is unknown: see exhibit P43, agreed fact 5.
On the prosecution case, the incident occurred in a unit and was witnessed by Mr Mark Sullivan. The start of the incident was also witnessed by Mr Nigel Hasler. Mr Ian Gordon was in a bedroom in the unit at the time.
Prosecution alleged a fiery dispute erupted shortly after 5.00 pm over Mr Walters drinking from a bottle of whisky. Prosecution alleged there was a verbal exchange between Mr McLellan and Mr Walters and then Mr Walters repeatedly punched Mr McLellan. On the prosecution case, Mr Hasler left the unit after Mr Walters had hit Mr McLellan three times. Mr Sullivan remained in the unit for a further hour during which the bashing continued. Prosecution alleged Mr Sullivan said to Mr Walters “leave him alone, you’ll kill him” and Mr Walters responded with “he wants to die and I’m gonna help him”. Prosecution contended Mr McLellan did not fight back at any time. Prosecution say Mr Sullivan helped Mr Walters clean up part of the crime scene and then left the unit.
On the prosecution case, Mr Walters then remained in the unit for a further two hours. Mr Gordon was in his room. Prosecution alleged there was an interaction between Mr Walters and Mr Gordon in which Mr Walters hit Mr Gordon with a rubber mallet, resulting in Mr Gordon escaping out the bedroom window and going to another block of flats in Walkerville Terrace, a short distance away, resulting in a triple-zero phone call being made at 9.25 pm. Meanwhile, Mr Walters left the unit and caught a bus from Walkerville Terrace to the city.[2]
[2] Prosecution do not allege any consciousness of guilt in Mr Walters’ departure from the unit.
Police arrived at the unit at about 9.45 pm. Mr McLellan was unconscious, not breathing and had significant injuries. Police officers commenced resuscitation, thereafter paramedics continued resuscitation, but Mr McLellan could not be revived.
Prosecution contended the blood located on numerous surfaces through the lounge room, including blood spatter on walls, floor, couches, coffee table and dining room table, was consistent with the continued striking of an already bleeding man. Prosecution contended DNA analysis gave a very strong indication that blood on the shoes and pants worn by Mr Walters was that of Mr McLellan.
Dr Neil Langlois performed the autopsy. Prosecution say that Dr Langlois’ ultimate conclusion concerning the cause of death was blunt force injuries in a man with emphysema in addition to alcohol, opiates and methamphetamines in the blood. Prosecution accepted there was no one precise cause of death and Mr McLellan’s consumption of drugs and ill health could not be ruled out as contributing to death. Nevertheless, prosecution contended Mr Walters caused the blunt force injuries and those injuries administered by Mr Walters were a substantial cause of Mr McLellan’s death.
Prosecution contended that Mr Walters had the intention to kill or cause grievous bodily harm throughout the beating from the very first punch or at least from the time of the third punch, and this can be accepted from Mr Sullivan’s evidence of the words spoken by Mr Walters. Alternatively, prosecution contended an intention to cause grievous bodily harm can be inferred from all of the circumstances including the protracted beating, Mr Walters’ size, the condition of Mr McLellan and the continued attack delivering further blows concentrated on Mr McLellan’s head and chest.
Prosecution contended that, despite Mr Walters’ appearance of intoxication, it can be inferred he voluntarily got into the taxi in the morning and, in the evening, voluntarily got on the bus and there is no reason to think other than Mr Walters intended the obvious consequences of his actions.
Prosecution contended that Mr McLellan was no real threat to Mr Walters and it was not reasonably possible that Mr McLellan mounted any feasible attack on Mr Walters.
Prosecution contended that it cannot be said Mr Walters was acting in self defence when he first hit Mr McLellan and it can be rejected as a reasonable possibility that Mr McLellan posed any real threat to Mr Walters at any later time such that Mr Walters would have believed his conduct to be necessary and reasonable for a defensive purpose or proportionate to any threat.
In the event the Court was not satisfied of proof of the requisite intention, prosecution contended the Court should find Mr Walters guilty of manslaughter. Prosecution submitted there can be no doubt that the acts of Mr Walters in inflicting the collection of blows that caused Mr McLellan’s death were unlawful and dangerous.
Brief outline of defence case
Mr Walters accepted he was involved in an altercation Mr McLellan. However, Mr Walters put in issue the extent to which the injuries suffered by Mr McLellan were caused by him and the extent to which these injuries contributed to Mr McLellan’s death. Counsel contended that the prosecution could not establish beyond reasonable doubt that Mr Walters’ actions were a substantial or significant cause of death in circumstances in which Mr McLellan was seriously ill with emphysema, cirrhosis, chronic obstructive pulmonary disorder, combined with having consumed significant amounts of medication, illicit drugs and alcohol, which defence submitted would have made him very susceptible to any kind of assault.
Counsel for Mr Walters submitted a key issue was intent and the role of self‑induced intoxication in relation to the cause and mechanism of death and intent. Intoxication was said to be relevant to the reliability of witnesses, the accuracy of their recall and to whether or not prosecution could prove any particular act beyond reasonable doubt which was accompanied with an intent to kill or cause grievous bodily harm.
Counsel for Mr Walters submitted there were real issues arising from deficiencies in the investigation and contamination of evidence.
Trial by judge alone
Mr Walters elected for a trial by judge alone pursuant to s 7(1) of the Juries Act 1927 (SA).
Burden of proof
Mr Walters is presumed to be innocent. The prosecution bears the onus of proving each element of the offence beyond reasonable doubt. A reasonable doubt is one I am prepared to entertain after hearing all of the evidence. Mr Walters does not have to prove anything.
Right to silence
Mr Walters was not obliged to give evidence and he chose not to give evidence. I must not draw any inference adverse to him or the case his counsel put forward from the exercise of his right to remain silent. I must not, and have not, speculated on the reasons why he did not give evidence.
I must decide whether the prosecution has proved its case beyond reasonable doubt only on the evidence before me.[3]
[3] During closing submissions, Mr Walters attempted to address me directly. I have ignored his statements and considered only the evidence.
Intoxication
Consumption of drugs and/or alcohol can impact upon a person’s state of mind, how they may perceive the words or actions of others, their perception of events, their memory and the ability to recall events. I have had regard to evidence concerning the consumption of alcohol and drugs when assessing the reliability of the evidence of certain witnesses, in particular, Mr Sullivan and Mr Gordon. I address my findings in relation to those witnesses below.
Alcohol and drugs may have an influence on the mental processes of an accused. I must pause before drawing the inference of a specific intent that one might otherwise ordinarily draw from the proven facts in the context of a sober person.[4] I have considered evidence concerning intoxication when addressing whether the prosecution has established beyond reasonable doubt that Mr Walters had the specific intention to kill or cause grievous bodily harm.
[4] R v Gardiner [2013] SASCFC 53 at [180]-[182].
I address in further detail below the law in relation to intoxication and my findings about that topic.
Expert evidence
Prosecution relied on a number of expert witnesses (in DNA, blood spatter, pathology and pharmacology).
I must consider the evidence of the expert witnesses together with the evidence of all other witnesses. I must determine what of their evidence I accept, what weight is to be attached to that evidence and any inferences that arise from the evidence. In assessing the evidence of an expert witness, relevant factors for my consideration include the qualifications of the witness, the extent to which their evidence accords with other evidence and their impartiality. I am entitled to accept or reject their evidence in whole or in part in the same manner as any other witness.
Circumstantial evidence
There are some aspects of the prosecution case which are circumstantial. In approaching the circumstantial aspects, I must first decide which facts I accept as established by the evidence. I must then consider what inferences I am willing to draw from those facts. I must consider the totality of the circumstances and not approach the evidence in a piecemeal fashion.[5] Mr Walters is not to be found guilty unless there is no reasonable explanation for all the accepted evidence other than that he is guilty. If there remains any reasonable hypothesis consistent with Mr Walters’ innocence, he must be acquitted.[6]
[5] R v Baden-Clay (2016) 258 CLR 308 at [46]-[47].
[6] Plomp v The Queen (1963) 110 CLR 234; R v Baden-Clay (2016) 258 CLR 308 at [46]-[47].
View
After the prosecution opening, a view was conducted of the unit. I remind myself that the view does not constitute evidence and was conducted for the purpose only of assisting me to understand the evidence subsequently called.
Exhibits
The exhibits included physical objects such as a mop, photographs, CCTV footage, body-worn camera footage, video footage of part of a police interview with Mr Walters and transcripts of CCTV and interview footage. I remind myself that the transcripts are not evidence and were provided only as an aide memoire for the purposes of assisting me and I must rely only upon my assessment of the footage.
Discreditable conduct
Evidence was adduced, without objection, which would have met the description of discreditable conduct. That evidence included alleged acts of violence said to be perpetrated by Mr Walters against Mr Gordon during the evening of 23 May 2020, Mr Walters’ consumption of illicit substances and evidence of Mr Hasler that he saw Mr Walters knock people out with one punch on the streets. During the police interview, Mr Walters referred to his prior incarceration in custody and spitting on a police officer.
The evidence of Mr Gordon is generally relevant to a complete account from Mr Gordon of what he said transpired, including how he caused the triple-zero call to be made. Evidence about drug taking and intoxication is relevant to Mr Walters’ level of intoxication. Evidence of Mr Hasler is relevant in relation to the possible force with which Mr Walters punched Mr McLellan. Evidence in the police interview was left in and not subject to objection for the purposes of context. Such evidence of discreditable conduct may not be used by me to reason that Mr Walters is more likely to have committed the charged offence because he engaged in any of the discreditable conduct and I have not used any of the evidence for such impermissible purpose.
Unreliable witness warning
Counsel for Mr Walters submitted that Mr Sullivan was such an unreliable witness that I should not accept his evidence absent corroboration. He submitted that a combination of matters, including Mr Sullivan’s consumption of illicit drugs and consequential impact on his memory, made it positively dangerous for me to rely on Mr Sullivan’s evidence. I have reminded myself of the dangers of convicting on uncorroborated, unreliable evidence.[7] I address Mr Sullivan’s reliability in detail in my reasons under the heading “Assessment of witnesses”.
[7] Bromley v The Queen; Karpany v The Queen (1986) 161 CLR 315.
Agreed facts
Pursuant to the provisions of the Evidence Act 1929 (SA), the parties agreed 43 facts which are set out in Annexure A to these reasons.
Elements of the offence of murder
A person commits murder if that person causes the death of another person, deliberately and unlawfully, while intending to cause death or grievous bodily harm.
In order for an accused to be found guilty of the charge, the prosecution must prove beyond reasonable doubt each of the following elements of the offence:
1.the act or acts of the accused caused the death of the victim;
2.the act or acts of the accused were voluntary and deliberate, that is, they were the result of the exercise of the accused’s will;
3.the act or acts of the accused which caused death were done with the intention to kill or cause grievous bodily harm to the victim. The intention must exist at the time of the act or acts which caused the death of the victim;
4.no lawful excuse or defence applied to the killing.
Causation
The prosecution must prove that the acts relied on as causing death were a substantial or significant cause of death.[8] The act or acts of the accused need not be the sole, direct or immediate cause of death.[9] It does not matter if the victim is suffering a condition which may cause death or if there is more than one cause of death as long as the act of the accused has relevantly provided a substantial contribution to death.[10] The acts of the accused must have more than a coincidental or insignificant effect,[11] and must be more than merely the setting for some other cause.[12] The accused takes the victim as he finds them, irrespective of the frailty or other infirmity of a victim that may render the victim more susceptible to death.[13]
[8] Royall v The Queen (1991) 172 CLR 378 at 398 per Brennan J), 411 per Deane and Dawson JJ, 423 per Toohey and Gaudron JJ.
[9] Royall v The Queen (1991) 172 CLR 378 at 398 per Brennan J, 411 per Deane and Dawson JJ, 423 per Toohey and Gaudron JJ, and 441 per McHugh J.
[10] R v Moffatt (2000) 112 A Crim R 201 at [65]- [76] per Wood CJ; R v McCarthy (2015) 124 SASR 190 at [335]-[342] per Peek J.
[11] R v Moffatt (2000) 112 A Crim R 201 at [71].
[12] R v Hallett [1969] SASR 141 at 150.
[13] Mamote-Kulang of Tamagot v The Queen (1964) 111 CLR 62 at 79 per Windeyer J.
The question of causation is to be determined as a matter of common sense, recognising that the purpose of the inquiry is to attribute legal responsibility in a criminal action.[14]
[14] Quoted from Campbell v The Queen [1981] WAR 286 at 290 per Burt CJ, endorsed by the High Court in Royall v The Queen (1991) 172 CLR 378 at 387 per Mason CJ, 411-412 per Deane and Dawson JJ, 423 per Toohey and Gaudron JJ and 441 per McHugh J.
It is not necessary for the prosecution to identify a precise act which causes death in order to prove murder or manslaughter, including in cases in which the accused committed a series of acts in which the fatal blow cannot be identified.[15] If the accused engages in violent conduct after which the victim does something that directly causes their own death, it is not essential to identify which act caused the victim to take the final fatal step, as long as some of the acts caused the death while accompanied by the requisite intention.[16]
[15] R v PL (2009) 261 ALR 365 at [46]-[50] per Spigelman CJ; R v Moffatt (2000) 112 A Crim R 201 at [26], [61], [66]. See also for example R v Gardiner [2015] SASCFC 107, in which cause of death was blunt head, chest and abdominal trauma but death from a particular cause could not be ascribed.
[16] Royall v The Queen (1990) 172 CLR 378 at 404-405 per Brennan J.
Voluntariness
The prosecution must prove beyond reasonable doubt that the relevant acts involved an exercise of the will of the accused.[17] The accused must have the capacity and intent to engage in the relevant acts. Voluntariness is generally not related to the accused’s knowledge or intention regarding the consequences of their act.
[17] Ryan v The Queen (1967) 121 CLR 205.
Intention
In order to prove specific intention, the prosecution must adduce evidence of circumstances sufficient to allow the inference beyond reasonable doubt that the accused had the requisite intention at the time of performing the acts which were the substantial cause of the victim’s death.[18]
[18] Ryan v The Queen (1967) 121 CLR 205 at 217-218 per Barwick CJ, Royall v The Queen (1991) 172 CLR 378 at 393 per Mason CJ, 401 per Brennan J, 414 per Deane and Dawson JJ, 426 per Toohey and Gaudron JJ and 458 per McHugh J; R v McDonald (2015) 123 SASR 313 at [29] per Kourakis CJ.
The requisite intention is the intention to kill or cause grievous bodily harm. Grievous bodily harm generally does not require explanation, but if explained means really serious bodily harm.[19]
[19] R v Perks (1986) 41 SASR 335 at 337 per King CJ; 345-348 per White J (with whom O’Loughlin J agreed).
The state of mind of a person is a fact and can be inferred from what a person does and says.[20] An inference must rest on something more than mere conjecture to be reasonable.[21]
[20] Kural v The Queen (1987) 162 CLR 502 at 504.
[21] Peacock v The King (1911) 13 CLR 619 at 661; R v Baden-Clay (2016) 258 CLR 308 at [47].
Intoxication
The sobriety or otherwise of the accused may be relevant to the assessment of the accused’s state of mind.
In Viro v The Queen, Gibbs J observed as follows:[22]
It would be contrary to fundamental principle to hold that evidence of intoxication not amounting to incapacity is irrelevant to criminal responsibility where the commission of the crime requires a special intent. In the case of such a crime the issue is not whether the accused was incapable of forming the requisite intent, but whether he had in fact formed it. The Crown must prove beyond reasonable doubt that the accused actually formed the special intent necessary to constitute the crime. If no more were proved than that the accused was capable of forming such intent, the case for the prosecution would not have been established.
[22] Viro v The Queen (1978) 141 CLR 88 at 111-112.
Inferences that might readily be drawn in relation to a sober person might not be as readily drawn if the accused was intoxicated.[23]
[23] R v Wingfield (1994) 176 LSJS 14; R v Gardiner [2013] SASCFC 53 at [50].
In R v Gardiner, Peek J (with whom Nicholson J agreed) said:[24]
There are obviously various dangers in assuming that a person on any particular occasion of performing an action in fact intended to thereby bring about what might be thought to be, on sober consideration, the natural or likely consequences of that act. One such danger is that persons acting under the influence of stress or heightened emotion may not in fact intend consequences which, on calm ex post facto analysis, appear obvious.
…
The correct role of intoxication is in some ways similar to the above example of stress or heightened emotion: its effect may have an influence on the mental processes of an accused on the particular occasion such that one should pause before drawing the inference of a specific intent that one might otherwise draw from the proven facts…
Section 268 of the Criminal Law Consolidation Act
[24] [2013] SASCFC 53 at [180], [182].
Sections 268(2), (3) and (6) of the Criminal Law Consolidation Act 1935 (SA) (“CLCA”) relevantly provide:
268—Mental element of offence to be presumed in certain cases
…
(2)If the objective elements of an alleged offence are established against a defendant but the defendant's consciousness was (or may have been) impaired by self-induced intoxication to the point of criminal irresponsibility at the time of the alleged offence, the defendant is nevertheless to be convicted of the offence if the defendant would, if his or her conduct had been voluntary and intended, have been guilty of the offence.
(3)However, subsection (2) does not extend to—
(a) a case in which it is necessary to establish that the defendant foresaw the consequences of his or her conduct; or
(b) except where the alleged offence is an offence against section 48 (rape)—a case in which it is necessary to establish that the defendant was aware of the circumstances surrounding his or her conduct.
Example—
A, whose consciousness is impaired by self-induced intoxication to the point of criminal irresponsibility at the time of the alleged offence, beats B up and B dies of the injuries. In this case, A could be convicted of manslaughter but not of murder (because A is taken to have intended to do the act that results in death but not the death).
…
(6)A defendant's consciousness is taken to have been impaired to the point of criminal irresponsibility at the time of the alleged offence if it is impaired to the extent necessary at common law for an acquittal by reason only of the defendant's intoxication.
Section 267A creates the following relevant definitions:
267A—Definitions
(1)In this Part—
alleged offence means the offence with which the defendant is charged but also extends to any other offence of which the defendant could be found guilty on the charge;
consciousness includes—
(a)volition;
(b)intention;
(c)knowledge;
(d)any other mental state or function relevant to criminal liability;
drug means alcohol or any other substance that is capable (either alone or in combination with other substances) of influencing mental functioning;
objective element of an offence means an element of the offence that is not a subjective element;
subjective element of an offence means a mental element of the offence and includes voluntariness;
In R v Childs,[25] Doyle CJ and Vanstone J said s 268 has not rendered common law principles irrelevant but has modified them. They considered s 268 of the CLCA has the effect that self-induced intoxication may deem a person to have acted voluntarily even if they would otherwise not be found to have acted voluntarily. However, self-induced intoxication remains relevant in relation to whether the accused had the specific intent required for murder.[26] Manslaughter may remain available if the specific intent required for murder is not proved.[27]
[25] R v Childs (2007) 98 SASR 111 at [71]-[80].
[26] R v Childs (2007) 98 SASR 111 at [80].
[27] R v Childs (2007) 98 SASR 111 at [80].
No lawful excuse
Self defence
Section 15 of the CLCA provides (relevantly):
(1)It is a defence to a charge of an offence if—
(a) the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; and
(b) the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.
(2)It is a partial defence to a charge of murder (reducing the offence to manslaughter) if—
(a) the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; but
(b) the conduct was not, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.
(3)For the purposes of this section, a person acts for a defensive purpose if the person acts—
(a) in self defence or in defence of another; or
…
(5)If a defendant raises a defence under this section, the defence is taken to have been established unless the prosecution disproves the defence beyond reasonable doubt.
The prosecution thus bears the burden beyond reasonable doubt of disproving any defence of self defence.
In R v Roberts, White J said:[28]
There are two elements of the defence established by s 15(1) and s 15A: a genuine belief by the defendant that the conduct to which the charge relates is necessary and reasonable for a defensive purpose (a genuine belief), and reasonable proportionality between the defendant’s conduct, and the threat which the defendant believed to exist (reasonable proportionality). The former involves a subjective test, and the latter an objective test.
[28] R v Roberts (2011) 111 SASR 100 at [84] per White J.
In Police v Lloyd, Debelle J said:[29]
… the task first required by s 15(1) is to examine the belief of the accused and to determine whether that belief was genuinely held. It is a subjective test in the sense that it is the belief of the accused which must be examined. The Court is not, at this stage, concerned to examine whether a reasonable person would hold that belief. The Court or a jury is, however, required to determine whether it is a reasonable possibility that the accused held that belief. Expressed in terms of what the prosecution had to prove in this case, the question was whether the prosecution had proved beyond reasonable doubt that the respondent did not genuinely believe any of the above three matters. The concept of a genuine belief carries with it the necessity to consider not only what the accused person may say as to his belief but whether, in all the circumstances, that stated belief was genuine…
[29] Police v Lloyd (1998) 72 SASR 271 at 276 per Debelle J.
The requirement that the accused’s belief be genuine does not imply any element of reasonableness. The prosecution must exclude beyond reasonable doubt the possibility that the defendant, subjectively, had a genuine belief.
Knowledge of the victim’s propensity for violence is relevant to the assessment by the accused of the danger the accused was facing.[30]
[30] R v Jones (2017) 129 SASR 522 at [11]-[13] per Kourakis CJ, [125]-[127] per Nicholson J noting that an established propensity for violence may support reliance on a defensive purpose but only where there is evidence which raises the issue that the victim may have used or threatened force on the particular occasion.
Self defence is only available to an accused who does not want to fight and not to an accused who is willing to engage in a fight if someone else starts it.[31] The genuine belief that conduct is necessary and reasonable for a defensive purpose will not exist if a person was the initial aggressor or engaged willingly in combat unless there is a reasonable possibility that incident had come to an end and a new incident had commenced.[32]
Provocation
[31] R v Miller (2019) 134 SASR 155 at [162] per Stanley J.
[32] R v Miller (2019) 134 SASR 155 at [164] per Stanley J.
The defence of provocation operates to reduce murder to manslaughter. The accused must have formed an intention to kill or do grievous bodily harm before a question of provocation arises.[33] It is for the prosecution to prove beyond reasonable doubt that the accused was not acting under provocation. The provocation must actually cause the loss of self-control and the accused must act while deprived of self-control and before having the opportunity to regain composure. Provocation must be such that it is capable of causing an ordinary person to lose self-control and to act in a way the accused acted.[34]
[33] R v Thiyagarajah [2019] SASC 84 at [301] per Lovell J.
[34] Masciantonio v The Queen (1995) 183 CLR 58 at 66 per Brennan, Deane, Dawson and Gaudron JJ.
Elements of manslaughter
Manslaughter by unlawful and dangerous act is an alternative available in the event the Court is not satisfied that the accused had the requisite intention for murder at the time of committing acts which caused death.
In order for an accused to be found guilty of the offence of manslaughter by unlawful and dangerous act, the prosecution must prove beyond reasonable doubt each of the following elements of the offence:
1.an act or acts of the accused caused the death of the deceased;
2.the act or acts were conscious and voluntary (ie deliberate);
3.the act or acts were unlawful;
4.the act or acts that caused the death were dangerous.
An act is dangerous if a reasonable person in the position of the accused performing the act would have realised they were exposing another person to an appreciable risk of serious injury.[35]
[35] Wilson v The Queen (1992) 174 CLR 313 at 332-333 per Mason CJ, Toohey, Gaudron and McHugh JJ.
Exposing another person to an appreciable risk of serious injury is a lower threshold than exposing another to grievous bodily harm.
Background
A number of witnesses were called to give evidence about the background to, and events which occurred during, the incident. I set out first a summary of the main evidence under topic headings. I set out later in my reasons the findings I have made in relation to the relevant background and circumstances of the incident.
Location
Mellor Court comprises a number of housing rust buildings containing multiple units situated at 7A James Street, Gilberton. Mellor Court is located approximately halfway between Walkerville Terrace and Edwin Terrace on the south-western side of James Street. At its eastern end, James Street intersects with Walkerville Terrace. Bentzen Court, comprising a number of buildings containing units, is located a short distance away at 61 Walkerville Terrace, Gilberton, in a north-east direction from Mellor Court. A Woolworths grocery store and a liquor store (Fassina Liquor) are located on Walkerville Terrace in a north‑easterly direction and within walking distance of James Street.
The incident took place at unit 45 (“the unit”) within Mellor Court located on the ground floor of a two-storey block of units containing eight units.
The unit consisted of two bedrooms, a lounge room, a bathroom and kitchen. The layout of the unit and items within it was relevant to the evidence of witnesses. The front door of the unit opened from a hallway to a bathroom on the left (northern side), a kitchen directly ahead, and a small lounge room to the right (on the southern side of the unit). Two bedrooms were located on the eastern side of the unit. The unit and the lounge room were small. The lounge room contained a number of items of furniture. A dining table was located on the southern side of the room, together with a number of chairs. A black/grey two‑seater couch (the “black couch”) was located along the northern wall of the lounge room which backed onto the kitchen. A cream three-seater couch (“cream couch”) was located alongside the western wall of the lounge room which backed onto the entrance hallway. A wooden coffee table was located in front of the cream couch. There were other pieces of furniture in the lounge room including a black coffee table, a chest of drawers against the eastern wall, chairs, a grey shelving unit against the western wall on the southern side of the cream couch and a television cabinet and television in the south-eastern corner. Multiple miscellaneous items were located on top of the wooden coffee table and the dining table.
Private residences located on James Street to the north-east of Mellor Court and near the entrance to Bentzen Court were equipped with CCTV cameras. CCTV footage was obtained from those locations. That footage showed some movements of people along James Street and in and out of Bentzen Court on 23 May 2020. CCTV footage was obtained from inside and outside Fassina Liquor. CCTV footage was obtained from a taxi taken by Mr Walters and Mr McLellan in the morning of 23 May 2020, outside a bank and from various bus trips taken by Mr McLellan, Mr Walters and a witness, Mr Sullivan.
At the time of the incident, Mr Sullivan resided in the unit, occupying bedroom 2. Mr Gordon was also staying in the unit in bedroom 1. Mr McLellan resided in another unit in Mellor Court.
There was significant evidence of drug taking in Mellor Court. People congregated from time to time at the unit to consume illicit substances.
Mr Sullivan’s account
Mr Sullivan said he knew Mr McLellan for about six years and would see and speak to him every couple of days. He described their relationship as very good, although he said Mr McLellan could get a bit obnoxious when drunk. He said Mr McLellan limped very badly and had a walking stick the whole time he knew him. Mr Sullivan had seen Mr McLellan on the Thursday or Friday before 23 May 2020, and possibly every day that week leading up to the incident.
As at 23 May 2020, Mr Ian Gordon had for a few months lived in Mr Sullivan’s spare bedroom. Mr Sullivan said friends would stay at the unit but quite often would not sleep due to methamphetamine use. He said that, if they did, they would lie down in the spare bedroom or in his bedroom.
Mr Sullivan said he met Mr Walters when an acquaintance brought him to Mr Sullivan’s unit. As at 23 May 2020, he had known him for about three weeks and, in that three week period, Mr Sullivan and Mr Walters shared amphetamines at the unit more days than not.
Mr Sullivan described the furniture in the unit. He said there was a two‑seater couch against the lounge room wall backing onto the foyer of the building (the western wall) and a coffee table parallel to this couch. He said there was a three‑seater couch against the lounge room wall that backed onto the kitchen (the northern wall) and a dining room table was located directly under the window of the lounge room with three chairs around it.
Mr Hasler
Mr Hasler goes by the nickname Axle. He had known Mr Sullivan for about 10 years and Mr Walters, a good friend, for about 10-12 years. He also knew John McLellan (known as Jock).
Events on 23 May 2020 prior to the incident
Ms Wilson’s account
Ms Wilson has been a friend of Mr Walters for a long time.
Ms Wilson arrived at the unit at about 2.30 am – 3.00 am to meet Mr Walters, having promised him she would go over after work to see him. She travelled to the unit by bicycle with a friend called Sharon. Ms Wilson said she had drugs to consume and that she was repaying Mr Walters for some stuff he had given her. Another woman called Raechel was at the unit.
After being at the unit for about an hour, Ms Wilson mixed up some methamphetamine. She said there was probably about a few points in total, three or four, mixed with water and drawn up in a syringe. The mixture was transferred from the syringe into different needle fits. Ms Wilson said she, Mr Sullivan and Mr Walters injected about equal amounts intravenously.
Ms Wilson said she and Mr Walters had gone through a whole gram of methamphetamine in the three days leading up to the day she was supposed to go around to see Mr Walters. When asked whether she had been sleeping much in the three day period, Ms Wilson did not directly answer but said it would be stupid to have a shot and then go to sleep.
Ms Wilson left with the other ladies when it was daylight.
CCTV footage
Approximately mid-morning, Mr Walters and Mr McLellan went into the Adelaide central business district together. CCTV footage from a taxi shows that Mr McLellan and Mr Walters took a taxi from James Street at about 11.17 am. Mr McLellan got into the back seat and Mr Walters into the front seat. Mr Walters was holding what appeared to be a glass container without a lid containing a dark liquid with the appearance of red wine. He also had what appeared to be a bottle of alcohol in his pocket, the top of which was visible. He spoke almost continually, both to Mr McLellan and to the taxi driver. Some of what he said was difficult to follow and contained expletives and significant sexual references. He constantly touched his face. He could be heard to say “love you Jock, I do”. He drank from the container and at one point reached behind to clasp Mr McLellan’s hand. Mr McLellan was seated in the rear seat. He did not have any visible signs of facial injury. As they left the taxi in front of a bank, the taxi driver reached around and handed to Mr McLellan what appeared to be a silver “goon bag” such as that found inside a wine cask. Apparently having realised the bank was closed, Mr Walters and Mr McLellan got back into the taxi. Mr McLellan and Mr Walters got out of the taxi again on Gouger Street at about 11.36 am. Mr McLellan could be seen getting out of the back seat and walking to the pavement, first carrying and then using his walking stick. Mr Walters was holding the container of liquid which Mr McLellan took and drank from while holding his walking stick in his other hand.
Mr McLellan and Mr Walters attempted to get onto a bus in Victoria Square at about 12.51 pm. Mr Walters was denied entry onto the bus as he had alcohol, but Mr McLellan boarded. Mr McLellan got off the bus on Walkerville Terrace at about 1.05 pm. He walked off using his walking stick. While walking with a limp, he appeared relatively steady on his feet and without any sign of visible injury.
Mr McLellan bought a bottle of whisky.[36] Mr McLellan then bumped into his adopted brother, Saint Lucifer Mordechai. Mr McLellan and Mr Mordechai walked back to Mellor Court together. CCTV footage shows Mr McLellan walking up James Street with Mr Mordechai towards Mellor Court at about 1.18 pm on 23 May 2020.
[36] Exhibit 43, agreed fact 12.
Mr Mordechai’s account
Mr Mordechai said on 23 May 2020, he caught a bus from the city and got off on Walkerville Terrace to go to the unit of a friend in Mellor Court. He said Mr McLellan called out to him on Walkerville Terrace and Mr Mordechai waited for him and they walked together to Mr Sullivan’s unit. Mr Mordechai said Mr McLellan had with him an unopened bottle of Johnnie Walker Red Label. Mr Mordechai thought Mr McLellan seemed a bit upset and was talking in an obnoxious fashion to Mr Mordechai.
Mr Mordechai said Mr McLellan was moving about the same as usual, which was not very fast. Mr Mordechai could not remember if Mr McLellan had his walking stick with him but stated he usually did.
CCTV footage of Mr Mordechai and Mr McLellan walking together down James Street showed Mr McLellan stopping. Mr Mordechai said Mr McLellan was not the fittest of men and it was not unusual for Mr McLellan to stop and take a breather. He said Mr McLellan’s breathing was not laboured but he still needed to take a breather and it might have been his legs, if anything, that caused the need to stop.
Mr Mordechai said he was at Mr Sullivan’s house for about 5-10 minutes. He sat with Mr McLellan on a couch and then, because of the unpleasant way Mr McLellan was talking to him, Mr Mordechai got up and sat on another couch and then left. Mr McLellan had the whisky bottle with him, but Mr Mordechai did not recall him opening it while he was there. Mr Sullivan was present.
Mr Sullivan’s account
Mr Sullivan said he was at the unit the entire morning of 23 May. He said Mr Hasler may have come to the unit for 10 or 15 minutes early in the morning and dropped something off, and that Mr Sullivan may have used that substance.
Mr Sullivan said Mr McLellan came to the unit at about 12.00 pm with a bottle of Johnnie Walker Red label whisky, about two-thirds full. Mr Sullivan gave him a glass with ice and Mr McLellan drank one glass in his presence. Mr McLellan wanted assistance to put songs on his phone and Mr Sullivan agreed but said he wanted to do his food shopping first. Mr Sullivan said that before he left, Mr McLellan started to consume at least some of the whisky while seated on the three-seater couch. He did not know whether the drink was the first drink for Mr McLellan that day. Mr Sullivan said he was seated at the front door end of the two-seater couch. Mr McLellan was not in the lounge room long before he went into bedroom 2 and closed the door. He said Mr Gordon was already in bedroom 2 and Mr Sullivan assumed he was asleep because he had been awake for a few days.
Mr Sullivan said he left the unit at around 12.30 pm or 1.00 pm to walk to get groceries from Woolworths in Walkerville. Mr Sullivan said he did not see Mr McLellan again until after his second trip to Woolworths later that day. Mr Sullivan gave evidence he returned to the unit at around 1.30 pm or 2.00 pm and remained in the lounge room until he realised he needed phone credit and consequently returned to Woolworths at about 4.30 pm or 4.40 pm.
CCTV footage shows Mr Sullivan walking northeast on James Street towards Mellor Court at about 12.24 pm on 23 May 2020. This is consistent with his return to the unit shortly after 12.24 pm, that is, earlier than his recollection of the time he returned.
Mr Sullivan walked back to Woolworths to buy phone credit and cigarette papers. CCTV footage shows Mr Sullivan walking down James Street towards Walkerville Terrace at about 4.26 pm on 23 May 2020 consistent with Mr Sullivan returning to Woolworths in the late afternoon.
Mr Sullivan said after leaving Woolworths, he saw Mr Walters near Fassina Liquor. Mr Walters was carrying a cask of Renmano wine and drinking from a McWilliams port bottle. He thought Mr Walters was carrying a black jacket. Mr Walters went into Fassina Liquor and bought another cask of Renmano wine and asked Mr Sullivan if he could come back to Mr Sullivan’s place. Mr Sullivan agreed and gave evidence about the walk back to the unit.
CCTV footage from outside Fassina Liquor showed Mr Sullivan and Mr Walters were together outside the store at about 4.50 pm. Footage showed Mr Sullivan holding a black jacket. After a short time, Mr Walters put on the jacket. CCTV footage from inside Fassina Liquor showed Mr Walters initially walking into the store wearing a hoodie. Mr Walters picked up two casks which he placed onto the counter. Mr Walters then walked away from the counter and out the door, returning a short time later wearing a black jacket over the hoodie and placing some money on the counter. The casks were placed into an orange box which Mr Walters picked up and he then left the store. Mr Walters then reappeared in the external footage carrying the orange box. Mr Sullivan and Mr Walters walked away from Fassina Liquor at about 4.53 pm and walked up James Street towards Mellor Court at about 5.00 pm. The footage in James Street showed Mr Sullivan walking with Mr Walters who was wearing track pants with white stripes up the sides and carrying a black jacket and an orange box. The men appear to be walking at a normal pace, neither unduly quickly or slowly, and Mr Walters’ gait is not obviously unsteady. The footage is consistent with Mr Walters purchasing two casks at Fassina Liquor and Mr Walters and Mr Sullivan returning to the unit at around 5.00 pm.
At this time, according to Mr Sullivan, Mr McLellan was at the unit, as was Mr Gordon.
Mr Hasler’s account
Mr Hasler said he last saw Mr McLellan at Mr Sullivan’s unit. He could not recall the date but described knowing it was a Saturday as he watched a David Attenborough wildlife program in the evening in the lounge room. He had been arguing with his partner, Heidi, and went to the unit when it was still light. He stayed for a few hours.
Mr Hasler said when he arrived, Mr Gordon and Mr McLellan were there and they sat and talked. Mr Hasler said he thought Mr McLellan was drinking because he drank all the time. He was not sure what he was drinking but thought he was drinking from a cup. He could not say if he saw anyone consume any drugs.
Mr Hasler said Mr Gordon was in and out of his bedroom. Mr Sullivan arrived at the unit with Mr Walters after coming back from the grocery store. Mr Hasler said it would not have been that dark when Mr Sullivan and Mr Walters got back, although the unit was always reasonably dark. Mr Hasler thought Mr Walters was drinking from a small bottle of Johnnie Walker.
Mr Hasler said he sat with Mr Walters on the couch against the wall on the right as one came in the door (ie the cream couch against the western wall) and spoke with Mr Walters most of the time he was there. Mr McLellan sat on the left‑hand couch (ie the black couch).
Mr Hasler said Mr McLellan was not easy to understand and had a Scottish accent. He said Mr McLellan never took a backward step to anyone even though he was little and he always had an opinion.
Mr Gordon’s account
Mr Gordon said he spent the day in his room at the unit. He said he smoked a bit of pot by himself in his room. He denied drinking any alcohol or consuming other drugs that day. Mr Gordon said there were people floating in and out of the unit all day and he floated in and out of the living room a couple of times. He saw Mr Walters, Mr McLellan, Mr Sullivan and Mr Hasler at the unit.
The incident
The incident which culminated in Mr McLellan’s death started relatively shortly after Mr Walters and Mr Sullivan returned to Mellor Court.
Mr Sullivan’s account
Mr Sullivan said the incident started no later than 5.30 pm, as he had just come back from Woolworths. Mr Sullivan said he and Mr Walters arrived back at the unit and no one was in the lounge room as they entered. He said Mr Walters made a beeline for the bottle of Johnnie Walker Red on the coffee table in the lounge room and took a pretty big swig. He said Mr Walters was walking in circles in front of the TV and chatting generally. After they came into the unit, Mr McLellan came out of the spare bedroom and grabbed the bottle of Johnnie Walker Red from Mr Walters and put the bottle on the coffee table:[37]
That’s as soon as he walked out of the bedroom, straight and grabbed it out of Johnny’s hand and put it down ‘That’s mine, you shouldn’t be drinking out of that’.
[37] T98.
He said Mr McLellan sat on the three-seater couch on the lounge room door end and Mr Walters stood in the middle of the lounge room with his back to the TV. Mr Sullivan said there were some words spoken but he could not recall the exact words. It was not shouting but it was probably amplified a bit. He described it as one trying to outdo the other. He remembered Mr McLellan then standing up. He said Mr McLellan seemed firm and strong but proud, not fearful and perhaps cocky.
Mr Sullivan said when Mr McLellan stood up, everything exploded. He said when Mr McLellan stood up, Mr Walters walked straight towards him and punched him six or seven times very quickly to his head with both hands with “probably as much force as anyone could probably give.”[38] He said there was a lot of angst and anger. Mr Sullivan stated that after being punched, Mr McLellan fell back into the seat, banged his head on the kitchen wall and his eyes were pretty glazed. He said it was like Mr McLellan was gone there and then, he was almost unconscious immediately.
[38] T115.8.
Mr Sullivan said that fairly close to Mr McLellan falling back into the couch, Mr Sullivan screamed at Mr Walters “Johnny, leave him alone, you’ll kill him” to which Mr Walters responded, “he wants to die and I’m gonna help him”.[39] Mr Sullivan repeated these phrases a number of times during evidence. Mr Sullivan repeatedly said that he would never forget those words and they were etched in his brain. Mr Sullivan said Mr McLellan did not throw a punch and he was pretty much out of it. He stated there were a number of times during the incident that Mr McLellan said to Mr Walters “why are you doing this to me?”.
[39] T99.37-38.
Mr Sullivan said Mr McLellan remained on the couch and Mr Walters punched him a number of times, although he could not say how many. He gave evidence that “after a little while”[40] and after probably “half-hour, 45 minutes … Maybe an hour”,[41] Mr McLellan slumped to the floor and started to crawl toward the dining room table and may have been under the coffee table. He stated he was pretty sure Mr Walters said “what are you going to do? Climb out the window old man?” and then a bit of kicking and more punching occurred. He could not say how many times Mr Walters kicked Mr McLellan to the stomach, head and body. He said that one of the kicks to his head would have gone 40 metres if it was a football. He said this occurred maybe in the first half-hour or three quarters of an hour. He stated Mr McLellan’s head and shoulders were probably underneath the dining table fractionally when Mr Walters pulled Mr McLellan back by his legs.
[40] T100.11-12.
[41] T106.28-30.
Mr Sullivan said the last time he saw Mr McLellan, Mr Walters had picked up Mr McLellan under his arms from the floor, almost under the dining table, and thrown Mr McLellan on to the two-seater couch with quite some force, with Mr McLellan’s head toward the front door end of the couch. Mr Sullivan said Mr Walters probably punched him a few more times.
Mr Sullivan stated he went into the kitchen after about two hours and, while he was standing in the kitchen doorway, could see Mr McLellan looking up at him from the couch. He stated this was in the last 15 or 20 minutes, getting close to 8.30 pm. He also said Mr McLellan remained on the two-seater for probably the last half-hour, 40 minutes maybe. Mr Sullivan gave evidence that Mr McLellan had started to gargle blood and he believed Mr McLellan was swallowing blood but was still conscious and breathing.
In response to being asked how he could tell Mr McLellan was still breathing, Mr Sullivan said Mr McLellan was saying to Mr Walters “why are you doing this to me?”. Mr Sullivan said Mr McLellan was still semi-conscious because he was getting words out, but when he was on the two-seater, he could hear the breaths were getting slower and he was beginning to gargle.
Mr Sullivan stated he would at times say to Mr McLellan “just shut-up Jock, maybe Johnny will stop if you just shut-up”.
Mr Sullivan said the incident went on for a good two and a half, three hours, although it was not constant. Mr Sullivan said no weapon was used by Mr Walters other than his hands and feet. He stated he tried to talk Mr Walters down, but Mr Walters did not want to listen. He gave evidence that when Mr McLellan was lying on the floor, he was breathing, alive, bleeding, and maybe he was swollen. It was hard to judge swelling and he did not know where the blood was coming from, although it was more on Mr McLellan’s hair and in his beard and blood had started to gather all around the floor.
Mr Sullivan said Mr Walters was poking Mr McLellan around the head with a mop handle at one stage, but the mop was not used as a weapon. Mr Sullivan said Mr Walters took his shirt off, got blood off himself with the bathroom shower rose and poured water on the blood on the floor around the coffee table and near the kitchen door, trying to clean up the blood with the mop. Mr Sullivan said he assisted for more than a few minutes trying to clean up the water because he did not want mess everywhere.
Mr Sullivan said he left the unit at about 8.30 pm or 9.00 pm. He stated he missed the 8.30 pm bus to the city and caught the 9.00 pm bus. He gave evidence regarding his “bumpers run” in the city (in which he collected cigarette butts for tobacco) taking about an hour and a half. He said he arrived back at the unit at about 11.00 pm and was met by police. Mr Sullivan surrendered to police most of his clothing, his shoes, phone and wallet.
Mr Sullivan said that at the time of the incident he was scared and should have helped but did not know what to do. He did not do anything physically to stop what occurred but pleaded with Mr Walters to stop. He did not remember whether Mr Walters responded.
Mr Sullivan gave evidence he had been granted an immunity from prosecution by the Director of Public Prosecutions.
During cross-examination it became clear that Mr Sullivan’s evidence was inconsistent with prior affidavits sworn by him in some significant and important respects.
During cross-examination, Mr Sullivan agreed he remembered saying in evidence that Mr Hasler may have come to the unit in the morning, but he said he did not remember him being there that morning. Mr Sullivan said he saw Mr Hasler quite regularly because of his addiction and he may have been referring to Mr Hasler coming the week before. When asked again why he had said in evidence that Mr Hasler may have come early in the morning and dropped something off and he used that substance, Mr Sullivan said that sounded fairly correct. He could not be 100 percent, maybe 99.9 percent, sure. He said if he stated it “back then” it must have been the case. Counsel then pointed out that in his affidavit sworn 2 years before, Mr Sullivan had said Mr Hasler did not have any drugs. Mr Sullivan said Mr Hasler probably came and he may have come the day before, because he did not remember him coming to the unit on the Saturday. Mr Sullivan said he would rely on what he said at the time over his memory the day he gave evidence.
Counsel for the defence put to Mr Sullivan that, on the basis of his evidence, Mr McLellan was still alive when Mr Sullivan left the unit, despite Mr McLellan having been hit so hard in his head that if it were a football, it would have travelled 40 metres. Mr Sullivan responded that Mr McLellan was pretty tough and he was not going down without a fight.
Counsel for Mr Walters put to Mr Sullivan that Mr Hasler thought Mr McLellan was waving his stick before the fight started. Mr Sullivan responded by saying Mr Hasler was not in the house on 23 May apart from early in the morning and was not there when the fight started. Mr Sullivan was then taken to his affidavit dated 25 May 2020 in which he stated that Mr Hasler came over about 10 minutes after he and Mr Walters returned home. Counsel said that statement tended to suggest Mr Hasler was there. Mr Sullivan responded that he thought that was referring to the week before. The following exchange then occurred with counsel reading from Mr Sullivan’s affidavit:[42]
[42] T154.13-T155.3.
Q.… 'I was standing in my kitchen when I first saw it all start. I'm not sure what time this all happened, it could have been before 7 p.m. I was looking out towards the lounge room from the kitchen where I was making a tea or coffee and I saw Jock sitting on the first seat on the grey two-seater couch on the northern side of the lounge room. Axle was sitting on my cream couch and I think Johnny may have been sitting next to him. I then saw Johnny standing over Jock and I heard a loud crack I didn't see the first hit but I could certainly hear it'. You're suggesting again, aren't you, in that paragraph that Mr Hasler was there.
A.What I'm suggesting is even though I signed that page that that did not occur.
Q.Sorry, I don't understand what you're trying to say.
A.That is an incorrect statement, the entire paragraph.
Q.Let's look at para.25 'As soon as Johnny started up and wigging out Axle ran out -'
A.The week before, the Saturday before.
Q.Are you saying there is an incident where Mr Walters punched Mr McLellan straight in the face, sat him back down in the couch, he hit the back of the wall and then Johnny just laid into him on the Saturday before when Mr Axle Hasler was present.
A.No, I'm not.
Q.I genuinely don't understand what you're trying to suggest.
A.That those comments relate to the week before.
Mr Sullivan was adamant Mr Hasler was not in the lounge room when the events flared up:[43]
I can assure you that Axle was not in that lounge room when the first punches were thrown…
[43] T156.2-4.
One of the topics of inconsistency addressed in cross-examination was the nature of Mr Sullivan’s relationship with Mr McLellan, how he had described Mr McLellan, including as a “lady bitch” and “snarly old bastard”, and having had a “bust up” with Mr McLellan. Mr Sullivan denied exaggerating the nature of his relationship with Mr McLellan. Mr Sullivan explained references in his affidavits to Mr McLellan as tongue-in-cheek comments and that “lady bitch” was a joking term of endearment.
Mr Sullivan said he did not agree with certain matters in his affidavits. He said he could only go back on the video evidence because what he stated on that night (during his recorded interview with police) was truthful.
When asked if he had read his statements in preparing for the trial, Mr Sullivan said he was given the statements and he briefly read a couple of them, but he did not go into fine detail. He wanted his memory to be the deciding factor in his testimony as well as the statements. When asked whether the police read to him his affidavit which he swore on 25 May 2020, Mr Sullivan said they did not, and he began to read it, but he did not know whether he got through every single page right to the end. He said he could probably find errors in it but “when you’ve been put under the stress of this situation and you’ve been interviewed and asked the same questions over and over again in a different way you get a bit tired. You just want done with it”.[44] He said he trusted whoever was writing the statement and probably did not read it fully.
[44] T179.5-8.
When asked whether he would accept that he used the word “may” frequently in his evidence, Mr Sullivan said “possibly”, because he had to rely on memory and he said that a person with bipolar tries to put the bad out of their life, build a bridge and get over it. Mr Sullivan said, again, he was “pretty sure” and “99.99999999% sure” Mr Hasler was not there. When asked whether he was as sure of that as he was about seeing Mr Walters kick Mr McLellan in the head as if it was a football, Mr Sullivan said “Yes, yes and I’m surprised that he survived and stayed conscious with it, but he did”.[45] Later he said that he was surprised the kick did not break Mr McLellan’s neck. When asked to agree that he was giving an impression of what was going on, rather than specifics, Mr Sullivan disagreed wholeheartedly.
[45] T191.34-35.
Counsel for Mr Walters put to Mr Sullivan that when he was interviewed by the police, he told lies for about three quarters of an hour. Mr Sullivan said that was totally untrue. Mr Sullivan was then taken to his affidavit dated 25 May 2020, in which he stated that when he first spoke to police, he told them he left his house early in the evening before anything happened. Mr Sullivan said the affidavit was totally wrong. Mr Sullivan said he did not lie and he had never lied through this entire situation. When asked whether or not, having thought about it and been shown the affidavit, he actually lied, Mr Sullivan said no.
Mr Sullivan was then shown the first 45 minutes of body-worn camera footage of his interview with police commencing on his return to the unit on the evening of 23 May 2020. During the interview, when asked about Mr McLellan, Mr Sullivan initially asked if Mr McLellan was alright and said that Mr McLellan fell asleep in Mr Gordon’s room and that was the last he saw of him. When asked if he was aware of a dispute at his unit, Mr Sullivan said no. Mr Sullivan referred to “wiggin’ out” and “buggin’ out my head”. About 45 minutes after initially saying that he was not at the unit, Mr Sullivan told Detective Corbridge that he said earlier he was not at the unit, but thought he had better tell the truth.
Counsel for the defence put the following to the witness:[46]
Q.In fairness to you I don't suggest you lied throughout, you'd accept, wouldn't you, you told some lies in the beginning and you were lying at that point when you were saying 'Officer Corbridge said what we are really interested, what happened today, okay?', 'Nothing, no I sat on the couch, I did the dishes, and then I went and done a bumpers run'. You knew throughout that the police were interested in what happened to Jock, so were you.
A.Yes.
Q.You were deliberately not telling them what occurred up until that point.
A.Yes. Well not necessarily, I was trying to go step-by-step, but as you could see I was quite affected by amphetamines.
Q.Had you had any more drugs since the time you'd left the unit and the time you were seen by police.
A.No, not that I can remember.
[46] T203.9-26.
Counsel for Mr Walters took Mr Sullivan to a statement in his affidavit in which Mr Sullivan said Mr McLellan hit the back of the wall and Mr Walters laid into him and it was “weak as piss mate, a street fight”. Counsel asked him how someone he described as punching as hard as a boxer could also be as “weak as piss”. Mr Sullivan said he was not referring to the strength of punches, but the fact Mr McLellan had been punched. Counsel also took Mr Sullivan to a statement in his affidavit in which Mr Sullivan said that Mr Walters could not really hit, and “he hit like a girl”. When asked how someone who hits like a girl could equate to someone hitting as hard as a boxer, Mr Sullivan answered “personal experience”. Mr Sullivan then said Mr Walters was not hitting like a girl that night, but it took him three and a half hours and Mr McLellan was still alive.
When asked whether it was just the one kick like a football kick that he saw, Mr Sullivan said it was a few kicks to Mr McLellan’s body and they were pretty powerful, but he never saw Mr McLellan lose consciousness. Mr Sullivan said Mr McLellan kept talking at times. When asked how many blows Mr Walters delivered, Mr Sullivan said he knew it was a lot.
Mr Sullivan was asked whether it was the impact of Mr McLellan’s head hitting the wall after he was punched that caused Mr McLellan’s eyes to glaze over. Mr Sullivan said it may have been. He said he did not hear a crack, but he saw Mr McLellan hit his head. Mr Sullivan said Mr McLellan took most of the force in the couch and just clipped it. He said, “It wasn’t like ‘bang’, it’s going to knock him out”.[47] When asked whether he heard a loud crack, Mr Sullivan said he did not hear a loud crack. Counsel then asked what in Mr Sullivan’s affidavit he said was wrong. The following exchange occurred:[48]
[47] T165.10-11.
[48] T166.3-T167.9.
Q.So you can go with me. Tell me if I get it wrong. 'I was standing in my kitchen when I first saw it all start'.
A.Wrong.
Q.'I'm not sure what time this all happened. It could have been before 7 p.m.'
A.Wrong.
Q.'I was looking out towards the lounge room from the kitchen where I was making a tea or coffee'.
A.Wrong.
Q.'And I saw Jock sitting on the first seat on the grey two-seater couch on the northern side of the lounge room'.
A.Wrong. Because the two-seater couch was on the western side of the lounge room as that map you saw. The three seater where was on the northern side of the kitchen wall.
Q.'Axle was sitting on my cream couch and I think Johnny may have been sitting next to him'.
A.I don't remember Axle being there, but he may have been. Like I say, my memory of two years ago. He may have - I really don't believe he was there because there was nobody in my lounge room, nobody came to the door when Johnny and I walked in from coming back from Fassina Liquor Store with two casks of Renmano and McWilliam's port in his hand he was drinking.
Q.'I think Johnny may have been sitting next to him. I then saw Johnny standing over Jock and I heard a loud crack.'
A.Wrong.
Q.'I didn't see the first hit but I could certainly hear it'.
A.All of that is wrong.
Q.'I saw Jock stand up and then Johnny punched him straight in the face and sat him straight back down in the couch'.
A.That was the six or seven punches as he'd come out, grabbed the bottle of Johnnie Walker red, sat it on the coffee table, sat down, probably even had his hands folded like (INDICATES) 'You're not touching my grog'. Right.
Q.He hit the back of the wall -'
A.Then he stood up above and that's when Johnny hit him and he was back into the seat and hit his head on the back of the wall, the kitchen wall ...
Counsel put to Mr Sullivan that the lighting in the unit was poor but Mr Sullivan said he thought the lighting was bright.
When he was reminded that he had given evidence that you could not see from the kitchen what was happening in the lounge, Mr Sullivan agreed if he was in the kitchen and something was happening on the three-seater couch he could not see. However, he maintained he could clearly see the two-seater, probably even the lounge room window from the kitchen doorway, even if he was standing at the sink doing the dishes.
Mr Sullivan maintained that he never saw Mr McLellan threaten Mr Walters with his walking stick nor take off his jacket to fight Mr Walters. When asked whether Mr McLellan was in fact aggressive, Mr Sullivan said the way Mr McLellan first sat in the seat, he may have come across as aggressive, but he was not yelling and cursing that he could remember. Mr Sullivan said that he did not believe Mr McLellan threatened Mr Walters with his walking stick. Mr Sullivan said if at any stage his recollections were shown to be wrong then he would accept that. He did not agree that Mr Walters was telling Mr McLellan to stand down. He did not agree that after one punch Mr McLellan went down, hit his head, got back up, there was another punch and got back up. Mr Sullivan said “one hundred per cent sure no”.[49] He said it was not the truth that Mr McLellan was constantly abusing Mr Walters. He denied that he was trying to minimise Mr McLellan’s behaviour.
[49] T181.10.
Counsel for the defence referred to Mr Sullivan’s evidence that Mr Walters said Mr McLellan wanted to die and he was going to help him. The following exchange then occurred:[50]
Q.If I suggested that didn't appear in any of your statements until last week, what would you say.
A.I'd really like to read the full file like that because I would find that very hard to believe.
Q.Jock did talk about wanting to die, didn't he.
A.Once again, quite a bit of time ago, I don't remember him saying that…
[50] T184.8-14.
Counsel asked Mr Sullivan when, in relation to the combination of punches Mr Sullivan said Mr Walters delivered, Mr Walters said the words “he wants to die and I’m gonna help him”. Mr Sullivan maintained that Mr Walters made that statement after the first six or seven punches when Mr McLellan was already sitting back in the couch. Mr Sullivan said he believed there were more punches after the statement. Mr Sullivan could not recollect how many punches were thrown in what timeframe. Mr Sullivan said the additional punching was after that comment. It may have been two minutes later, or it may have been five minutes later. Mr Sullivan said when Mr Walters made the statement about wanting to help him die, he was standing by the corner of the coffee table. The following exchange occurred:[51]
[51] T188.27-T189.19.
Q.Did Mr Walters just keep standing there for the next half an hour, 45 minutes.
A.He may have been moving in that space in front of the TV, he was quite agitated.
Q.Was he agitated because Jock kept threatening him.
A.I don't know what you mean by 'Jock kept threatening him', Jock was pretty much sitting there stunned, quiet, whatever.
Q.Well he wasn't, was he, because you kept telling him to keep quiet 'Shut up man'.
A.That was later on, but while he was sitting there within that half hour or 45 minutes maybe he may have stated it. Once again, I wasn't sitting there writing down time frames and saying that and I definitely remember saying 'Just shut up, Jock' hoping that Johnny might calm down.
Q.I'm just trying to establish is there any connection in your mind with this phrase you'll never forget 'He wants to die, I'm going to help him' with a particular blow, be it a punch, kick, anything you like.
A.No.
Q.So it could have been said at any time.
A.No, I've told you when it was said.
Q.Sorry, any time after that initial combination.
A.Yes.
Q.Immediately after, I think you said, in fairness to you close to that period.
A.I think it would be closer than 45 minutes after.
Q.Even though you clearly remember those words you don't remember Mr Walters doing anything when he said them.
A.He probably looked at me when he stated that.
In re-examination, when asked about his lies in the interview with police, Mr Sullivan explained that he was trying to keep a clear head, go through what he was being asked and give the best answer he could at the time. Once he knew Mr McLellan was dead there was nothing more he could do but tell the circumstances as they progressed step-by-step on the particular day and night.
Mr Hasler’s account
Mr Hasler described the beginning of the altercation as follows: [52]
Jock started going off about something and I couldn't even understand what he was going off about and I don't know, you know, he was going off at Johnny about something and Johnny was just telling him to 'Don't worry old boy', you know, 'Don't worry'.
[52] T231.
Mr Hasler said he could not understand what was going on, but then he realised Mr McLellan was going off at Mr Walters because of the bottle Mr Walters had in his hand. He said Mr Walters was telling Mr McLellan to sit down and shut up and Mr Hasler described the mood between Mr Walters and Mr McLellan in the following way:[53]
It was alright at the start, you know, it was alright at the start. You know, it wasn't until it got to end where Johnny [i.e. Mr Walters] just had had enough of Jock [i.e. Mr McLellan] not - he understood Jock a lot better than I did because he knew him a lot better and, you know, Jock just kept antagonising him and antagonising him and antagonising him and you'd calm Johnny down and Jock would wind him back up. But Jock had a bad, a good habit of threatening people all the time.
[53] T232.
Mr Hasler said that Mr McLellan would go straight to the threats and that if you got into an argument with him, he was not going to back down.
The situation concerned Mr Hasler as he knew Mr Walters and Mr McLellan and he said there was “only so much you can do to a person before they lose it”.[54]
[54] T233.
Mr Hasler said Mr McLellan remained in his seat until complaining and then Mr McLellan stood up and then Mr Walters got up on his feet to argue with him. Mr Hasler said Mr McLellan was going on a while, being minutes, before Mr Walters stood up. He said Mr McLellan started screaming, going on about the whisky, and waving his walking stick. Mr Hasler said when Mr Walters stood up, he told Mr McLellan to “sit down old man”, but Mr McLellan did not. Mr Hasler said he interjected maybe four or five times to try to get Mr McLellan to stop and quieten down and he got Mr Walters to walk away three or four or maybe five times. However, in the end Mr Walters said: “[t]hat’s it Axle, you’ve had your go man”.[55] He said that Mr Walters was “really angry man, really really angry man”.[56] Mr Hasler continued to say that he did not see there was another way that “you could stop him that day because Jock had just abused him and abused him and abused him until he was fucking off his tree, you know.”[57]
[55] T234.13.
[56] T234.13-14.
[57] T234.15-17.
Mr Hasler reiterated that Mr Walters said: “[t]hat’s it Axle, you had your go, he ain’t going to stop”[58] and just whacked Mr McLellan.[59] Mr Hasler described it as a punch straight in the mouth. When asked whether it was one punch or more, he stated:[60]
Punched him once and then Jock stood up and started going on again so Johnny punched him again and Jock stood up and started going on and Johnny punched him again and that was when he was lying on the couch, that's when I walked out 'bugger I'm out of here'.
[58] T235.35-36.
[59] T235.37.
[60] T236.
Mr Hasler only saw Mr Walters punch Mr McLellan three times, but he said every time he punched him it was like one punch was enough because Mr Walters did not punch him twice.
Mr Hasler said the first punch occurred when Mr McLellan was standing in front of the couch. When Mr Walters hit him, Mr McLellan hit the wall and landed on the couch. He could not say which part of Mr McLellan hit the wall but stated it was probably his head. After the first blow, he said Mr McLellan came straight back up onto his feet in front of the couch and started abusing Mr Walters again. Mr Hasler did not understand what Mr McLellan was saying.
Mr Hasler said Mr McLellan kept going on and Mr Walters said: “I told you to shut up, Jock” and whacked him again with a punch with his hand, probably to Mr McLellan’s face. He said Mr McLellan again hit the back of the couch, landed on it and was just lying there.
Mr Hasler said the third time Mr Walters hit Mr McLellan, Mr McLellan just hit the couch and lay there. He said Mr Walters must have punched him right on the mouth the third time because blood started coming out of Mr McLellan’s mouth.
Mr Hasler said he decided to leave because he did not want to break his good behaviour bond or suspended sentence. He stated Mr McLellan was not going to stop and if Mr McLellan did not stop, nor would Mr Walters. Mr Hasler said he asked Mr Walters to leave with him, but Mr Walters was angry and “sort of fixated on what was going on”[61] and he said “you’ve had your go man”[62] and “sort of like said he was busy. You know, Jock had wound him up that much that, you know”.[63]
[61] T241.17-18.
[62] T240.11.
[63] T241.28-30.
When Mr Hasler left, Mr McLellan was lying on the couch on his back, bleeding from his mouth, not saying anything and not really moving. Mr Hasler could not recall if Mr McLellan’s eyes were open.
When asked if Mr McLellan had his walking stick during the altercation, Mr Hasler said Mr McLellan normally had his walking stick all the time and most definitely would have had it in his hands at the time. Mr Hasler described the walking stick as dark brown-black with an adjustable aluminium handle like a chemist one.
Mr Hasler said both Mr McLellan and Mr Walters were friends of his and he was telling the Court what he saw. Mr Hasler said he was not under the influence of any substances which would affect his recollection.
During cross-examination, Mr Hasler said Mr McLellan stood up and took off his jacket. He said he always did so to indicate a preparedness to fight. He said Mr Walters did not initially react, told Mr McLellan to sit down and that Mr Walters waved it off. However, Mr McLellan kept on at him until Mr Walters started getting angrier and angrier. He thought it was minutes before Mr Walters stood up. Mr Hasler said Mr McLellan was screaming. He said Mr Walters told Mr McLellan to shut up, sit down, be quiet.
Mr Hasler said Mr Walters was a powerful man and if he hit you, you would definitely know you had been hit. He said after the first punch, Mr Walters backed off and did not follow up, but then Mr McLellan got up again.
Mr Hasler said that he did not think that Mr Walters was punching Mr McLellan all that hard. He had seen Mr Walters hit harder. He said Mr Walters “wasn’t hitting to hurt him”.[64] Mr Hasler did not see Mr Walters do anything more after the third punch.
[64] T263.11.
Mr Gordon’s account
Mr Gordon said at about 6.00 pm, he was watching the news or a sports show in his bedroom at the unit and heard a commotion. He said Mr McLellan and Mr Walters were very vocal and loud and there was a bit of crashing and banging but he did not leave his room. He said he was awake and he heard loud, raised voices but he tried to shut it out. Mr Gordon said he was lying down when the door crashed in and he was hit with something. He said he got up and was hit with a rubber mallet a few times by Mr Walters. He initially said before Mr Walters had hit him, he saw Mr Walters in the doorway. Mr Gordon described in several ways what occurred: [65]
No, it was just Johnny at me door and when, you know, he went out of the door I noticed that Jock was lying in the kitchen and lounge room … I pushed through the door, I was pushed back into my room but I definitely seen John on the floor prostrate
…
I was by the door of bedroom 2 … Yeah, well at that time [Mr Walters] was - yeah, he was halfway along that wall, the kitchen wall and the lounge room interior, halfway and yeah, I was getting things chucked at me, yeah.
…I backed back into the bedroom for protection and that's when I looked over and seen Jock when I was at the doorway, yeah.
[65] T269.23-29, T271.2-7, T271.11-14.
Mr Gordon said he did not know what state Mr McLellan was in, but he was not moving.
Mr Gordon described being attacked when he backed into his bedroom. He said a drawer and one of the bedside cabinets were thrown like missiles as were a small pair of multigrips. He said Mr Walters then picked up a rubber mallet from Mr Gordon’s orange toolbox on top of the dresser close to Mr Gordon’s bedroom door and hit Mr Gordon on the head a couple of times or three times. He said he was also struck with the mallet all over both sides of his body. Mr Gordon said Mr Walters was carrying on and very aggressive on alcohol. He stated both Mr Walters and Mr McLellan were like that.
Counsel for Mr Walters referred to Ms Wilson’s evidence that Mr Sullivan and Mr Walters had not slept for days and they would have been grossly intoxicated at the time of the incident through intravenous drug use. Counsel relied on Professor White’s evidence relating to the footage of Mr Walters in the taxi in the morning and on the bus at 9.05 pm confirming Mr Walters appeared psychotic before and after the incident such that he was likely to be out of touch with reality immediately following the incident and quite possibly during it. Counsel for Mr Walters submitted that the idea Mr Walters would have been psychotic at 11.00 am and psychotic at 9.00 pm yet not psychotic at 5.30 pm – 6.30 pm was fanciful.
Counsel for Mr Walters submitted the evidence of the level of Mr Walters’ intoxication and the effect upon him was quite extraordinary, being days of methamphetamine abuse on top of sleeplessness, on top of alcohol being purchased and consumed and Professor White’s evidence. Counsel for Mr Walters submitted that it was highly likely Mr Walters was out of touch with reality during the incident. Counsel for Mr Walters submitted that the prosecution’s own evidence from Professor White could not exclude the possibility that Mr Walters’ intoxication meant he did not form the relevant intent when he inflicted relevant blows.
Counsel for Mr Walters pointed to the lack of blood on the black couch and the absence of any evidence identified by Dr Langlois to substantiate Mr Sullivan’s evidence of Mr Walters giving Mr McLellan a kick to the head so hard a football would have travelled 40 metres. Counsel for Mr Walters submitted that because Mr McLellan did not die straight away and instead lingered for at least 30 minutes to perhaps two hours, the evidence pointed directly away from an intent to kill or cause serious bodily harm as a swift kick or stomp could have killed Mr McLellan had Mr Walters wished to do so.
Analysis
During the record of interview Mr Walters said:
Ya know I went down to see Jock [i.e. Mr McLellan], talk to him because he’s been around mate. He, he, he knows all you … … (Inaudible) … same shit, same life. He’s older, he been there done that, but he had a fucken, he wanted to go mate. He, he wanted to die. I said, “Don’t fucken say shit to me Bro”. If he wants to go I’ll take him to the beach to give him some fucking good memories or something, before he goes. And this shit’s happened (sniffles). Fuuuck! (sniffles, exhales, sniffles)
That statement might lend some support to Mr Sullivan’s evidence about what Mr Walters said. However, a report prepared by Anglicare SA dated 6 May 2019 in support of Mr McLellan’s request to access the National Disability Insurance Scheme, among other things, stated that Mr McLellan had spoken of being depressed and wanting to end his life.[104] As Mr McLellan had made such statements to at least the author of the Anglicare report and Mr Walters was aware of such statements, I cannot exclude the possibility that Mr Sullivan was also aware independently of the incident that Mr McLellan held that state of mind. I have taken into account the issues with the reliability of Mr Sullivan’s evidence. This includes the fact Mr Sullivan for the first time shortly before trial asserted Mr Walters spoke those words. He did not say Mr Walters spoke those words in affidavits prepared shortly after the incident. I do not regard the statement by Mr Walters in the record of interview as sufficiently corroborating Mr Sullivan’s account to enable me to find that Mr Walters said the words Mr Sullivan attributed to him during the incident and therefore to conclude beyond reasonable doubt that Mr Walters had the intention to kill Mr McLellan based on that evidence.
[104] Exhibit P43, agreed fact 32.
As I do not consider Mr Sullivan’s account of Mr Walters saying he wanted to assist Mr McLellan to die is sufficiently reliable, Mr Walters’ intention falls to be determined as a matter of inference from the totality of the evidence which I have accepted.
Although Mr Sullivan described Mr Walters hitting like a boxer, that evidence was inconsistent with his affidavit and I therefore do not consider the evidence reliable. I accept Mr Hasler’s evidence that Mr Walters was not hitting with the full force of which he was capable in the three punches he saw Mr Walters throw. Although motive is not required, there was no obvious motive or reason for Mr Walters to intend to kill or inflict grievous bodily harm on Mr McLellan. Mr Walters’ behaviour towards Mr McLellan in the taxi footage was affectionate, with no signs of animosity.
The question remains whether in all of the circumstances and particularly considering Mr Walters’ state of intoxication, the requisite and accompanying intention to inflict at least grievous bodily harm can be inferred. The prosecution must be able to negate rational hypotheses consistent with an absence of an intent to inflict at least grievous bodily harm. While the number of injuries not related to resuscitation may be suggestive of an intent to cause at least grievous bodily harm, that inference cannot as readily be drawn given Mr Walters’ state of intoxication. Dr Langlois was unable to opine as to the severity of the blows that may have caused the brain injuries. He considered that moderate force was required to cause the lacerations and moderate to severe force caused the fractured zygoma. However, Dr Langlois could not identify one injury as fatal nor a particular collection of injuries that would definitely cause death. The sum of the injuries was not necessarily severe and there was a complex interplay of issues referred to in Dr Langlois’ evidence which could have contributed to death.
I have taken into account all of the evidence including Dr Langlois’ evidence and Mr Hasler’s evidence about the force of punches. I have found that Mr Walters was angry and started to punch Mr McLellan when he did not “shut up”. However, I accept Mr Hasler’s evidence that, while Mr Hasler was present, Mr Walters did not punch Mr McLellan with full force. Although I have found that Mr Walters continued to assault Mr McLellan, I have accepted Mr Walters was intoxicated during the incident. I have reminded myself that Mr Walters’ intoxication is relevant to the assessment of his state of mind and that inferences may not be drawn as readily as he was intoxicated. Having done so, and taking into account all of the evidence including that of Dr Langlois’, I cannot exclude a reasonable possibility that at the time of inflicting the blows that caused Mr McLellan’s death, Mr Walters lacked the requisite specific intention. I am not persuaded that I can find beyond reasonable doubt that Mr Walters intended to kill Mr McLellan or to cause him grievous bodily harm.
Unlawfulness - self defence
Prosecution must prove beyond reasonable doubt that Mr Walters’ acts were unlawful. Given I have concluded Mr Walters lacked the requisite intent, provocation is not relevant.
Submissions
Prosecution counsel submitted the evidence established that Mr Walters willingly engaged in a fight, he approached Mr McLellan and struck him first and that cannot relevantly be defensive conduct, even if Mr McLellan was verbally aggressive, obnoxious or having a go at Mr Walters about the bottle of whisky. Counsel submitted the Court can find beyond reasonable doubt Mr Walters did not believe punching Mr McLellan was necessary in his own defence. Counsel also pointed to Mr McLellan’s age, health and being impacted by drugs and alcohol. Irrespective of Mr McLellan’s reputation for violence, prosecution counsel contended the question is whether Mr McLellan actually posed a threat to Mr Walters on the day. Counsel for the prosecution pointed to Mr Walters’ statement in the record of interview “He fucken - look how old he is mate. ‘Give it away Son’ you know what I mean?”. Counsel reiterated there was no real threat and Mr Walters just decided to whack Mr McLellan.
Prosecution submitted that Mr Hasler’s evidence was clear that Mr Walters hit Mr McLellan because he was angry with him. Even accepting Mr McLellan stood up, took off his jacket and waved his walking stick, prosecution counsel submitted Mr Hasler’s evidence was that Mr Walters approached Mr McLellan and punched him and willingly engaged. Prosecution submitted that it can be rejected as a reasonable possibility that Mr McLellan posed any real threat to Mr Walters at any later time in the incident such that Mr Walters would have believed his conduct to be necessary and reasonable for a defensive purpose or that his conduct could have been proportionate to any threat.
Prosecution submitted the evidence does not establish a loss of self-control taking into account Mr Hasler’s evidence as to the force of the blows administered. Counsel submitted Mr Walters was no doubt angry, but his conduct was not indicative of a loss of self-control. Mr Walters could have left at any time.
During submissions, prosecution contended that while Mr McLellan had antecedents, the last time he physically assaulted anyone was many years prior to his death.
Counsel for Mr Walters submitted that Mr McLellan’s propensity for violence was relevant in increasing the likelihood Mr McLellan was the aggressor and that Mr Walters’ knowledge of Mr McLellan’s propensity for violence was relevant to his assessment of the danger he was facing. Counsel for Mr Walters pointed to the various convictions including up until 2016 of carrying offensive weapon including knives.[105] Counsel for Mr Walters submitted that Mr Hasler’s evidence to the effect that Mr McLellan held himself out to have a violent past, together with Mr McLellan telling the author of the Anglicare report that he was an assassin and had killed people before[106] enabled an inference that Mr McLellan regularly held himself out to have a violent past.
[105] Exhibit P43, agreed facts 34-41.
[106] Exhibit P43, agreed fact 32.
Counsel for Mr Walters contended that Mr Hasler described Mr McLellan as the aggressor. Counsel for Mr Walters pointed to Professor White’s evidence about alcohol exacerbating pre-existing aggressive tendencies as relevant to Mr McLellan’s likelihood of being aggressive. He pointed to the impact of heroin possibly stopping Mr McLellan reacting to pain in a way which would have enabled him to keep going and the impact of methamphetamine causing an increase in activity and producing violent and aggressive behaviour.
In relation to the extract of the record of interview, counsel for Mr Walters submitted Mr Walters was trying to make sense of what Mr McLellan had been doing, and that Mr McLellan was fighting him not the other way around. Counsel submitted Mr Walters’ account in the interview was tearful, raw, upset, truncated but extremely significant and important. Counsel for the defence said contrary to Mr Walters’ statements being a concession or admission, Mr Walters was making plain he truly cared for Mr McLellan, consistent with the CCTV footage in the taxi, indicating he did not want to fight Mr McLellan and suggesting Mr McLellan simply would not stop. Counsel said if the incident involved Mr Walters attacking a frail and defenceless Mr McLellan, it would be utterly remarkable that Mr Walters would tell the police that Mr McLellan wanted to bash people every day, Mr McLellan was attacking him and kept fighting and Mr Walters did not want a bar of it.
Analysis
As set out above, the first limb of s 15(1) of the CLCA is that the accused genuinely believed his or her conduct was necessary and reasonable for a defensive purpose which is a subjective test. The second limb is that the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat the defendant genuinely believed to exist. This is an objective test assessed in the context of the accused’s subjective perspective of the circumstances[107] and intoxication is relevant in relation to the accused’s belief.[108] Prosecution bears the onus of proving the conduct was unlawful and thus disproving self defence.
[107] R v Roberts (2011) 111 SASR 100 at [84] per White J.
[108] Trezise v Police [2009] SASC 209.
The relevant conduct is the three punches administered by Mr Walters followed by a series of blows resulting in blunt force trauma and head injury.
The evidence of Mr Hasler is consistent with Mr Walters being very angry and making a choice to punch Mr McLellan, even after Mr Hasler attempted to get Mr Walters to walk away. Mr Hasler’s evidence about the force of Mr Walters’ three punches is consistent with Mr Walters exercising some control in those punches. Although he removed his jacket and shook his walking stick, Mr Hasler’s evidence is that Mr McLellan did not strike at Mr Walters before or after Mr Walters punched him and while Mr Hasler remained in the unit.
The evidence of Mr Hasler in relation to the first three punches does not leave open any reasonable possibility that Mr Walters could genuinely have believed his safety was threatened or could genuinely have believed the first three punches were reasonable and necessary for a defensive purpose.I have found that Mr Walters knocked Mr McLellan down three times and, although Mr McLellan got up at least twice, on each subsequent punch he was knocked down again. Mr McLellan did not make any contact with Mr Walters sufficient to leave an injury. Mr Hasler said he thought neither would stop, based on knowing them. While that supports the possibility Mr McLellan did not cease his abuse, it also supports Mr Walters continuing to act out of anger. Mr McLellan was significantly intoxicated. Although the effects of heroin potentially impacted his perception of pain and the effects of alcohol may have increased his aggression, Mr McLellan had already been knocked down three times and Mr Walters suffered no injury. For the reasons I have set out above and taking into account Mr McLellan’s mobility issues, his age, his size relative to Mr Walters, his injuries and the lack of any injuries to Mr Walters, I consider it inherently implausible that after the first three punches, Mr McLellan mounted an attack on Mr Walters which was such to give rise to a reasonable possibility that Mr Walters genuinely believed he had to defend himself against a threat that Mr McLellan represented or that Mr Walters genuinely believed his conduct was reasonable and necessary for a defensive purpose.
In his interview with police, Mr Walters stated Mr McLellan “was a fuckin asshole anyway he kept fuckin fightin me bro” and “I didn’t want to fight him bro”. Mr Walters also said in his interview:
It’s not like Jock was some fucken Angel. When he’d go around fucking crackin’ heads open … (Inaudible) … thinkin he was a fucken gangster with the fucken Carlton Crew an’ shit like that you know what I mean. Shit that, what we put up with that fucker man and I was the only cunt that day that said, “Get the fuck up, get outta bed I give ya $200 to take him to GLENELG”.
Mr Walters also said:
He fucken just wants to bash cunts every day. He fucken – look how old he is mate. “Give it away Son” you know what I mean? What you think I fucken like bashing an old man? Ya serious? I didn’t want to fucken fight him bro”.
Mr Walters’ statements to police demonstrate that Mr Walters had some awareness in relation to Mr McLellan’s propensity for violence or at least an awareness of Mr McLellan’s belief in relation to his persona, thinking he was a “gangster”. Mr Walters’ statement to the effect that he did not like bashing an old man and did not want to fight him is not necessarily or only consistent with a belief Mr McLellan was a threat or that he needed to fight or continue to fight Mr McLellan for a defensive purpose. It demonstrates how Mr Walters regarded Mr McLellan, that is, as an old man. It is consistent with Mr Walters being dismissive of Mr McLellan’s violence, that is, he should “give it away” given his age. I do not consider Mr Walters’ statements as suggestive of a fear of Mr McLellan or as viewing Mr McLellan as a threat.
Prosecution submitted that Mr McLellan was frail. Although Mr McLellan was of poor health and walked with a walking stick, his appearance on the CCTV footage is not of a particularly weak person. Nevertheless, there was a disparity between the relative sizes of Mr McLellan and Mr Walters and their ages and during the incident Mr Walters was bleeding and bruised. Further, Mr Walters did not suffer any injury in the incident. Mr McLellan had a number of injuries to his hands that could have been consistent with offensive or defensive injuries. If they were offensive injuries incurred during the incident, they were not such as to leave any visible injury on Mr Walters.
The impact of Mr Walters’ intoxication on his perception of any threat is relevant. Professor White gave evidence that a person under the influence of methamphetamine can experience psychotic effects that can make the person fearful or suspicious and, in those circumstances, they can respond by aggression, believing their actions defensive. However, as set out above, in relation to the first three punches, I do not consider that Mr Hasler’s account leaves open the reasonable possibility that Mr Walters punched Mr McLellan because he believed Mr McLellan represented a threat, even considering Mr Walters’ state of intoxication. Mr Hasler’s evidence that Mr Walters said “that’s it Axle, you had your go, he ain’t going to stop”, was very angry when he punched Mr McLellan and did not respond to Mr Hasler’s attempts to calm him is inconsistent with such a possibility. I am satisfied Mr Walters’ actions were a result of the effects of methylamphetamine, associated sleep deprivation and alcohol increasing his aggression and impairing his self-control. Accordingly, the prosecution has disproved beyond reasonable doubt that Mr Walters genuinely believed that his conduct was necessary and reasonable for a defensive purpose.
The second limb of s 15 requires considering whether Mr Walters’ conduct was reasonably proportionate to the threat Mr Walters faced, assessed in the circumstances and in response to the threat Mr Walters genuinely believed existed.[109] Even if Mr Walters genuinely believed Mr McLellan represented a threat such that his conduct was necessary and reasonable for a defensive purpose, I do not consider there to be a reasonable possibility that Mr Walters’ conduct was reasonably proportionate to the threat Mr Walters could genuinely have believed existed in the circumstances given Mr McLellan’s mobility issues, his age, his size relative to Mr Walters, the fact Mr Walters knocked him down successfully and he was visibly bleeding, and the lack of any injuries to Mr Walters. Accordingly, the prosecution has proved beyond reasonable doubt that Mr Walters’ conduct was not reasonably proportionate.
[109] R v McCarthy (2015) 124 SASR 190 at [60].
The prosecution has thus excluded self defence beyond reasonable doubt.
It follows that I consider the prosecution has established that Mr Walters’ conduct was the substantial cause of Mr McLellan’s death and his conduct was unlawful. However, as the prosecution failed to prove Mr Walters’ intention was to kill or cause grievous bodily harm, Mr Walters must be acquitted of the charge of murder.
I turn now to consider the alternative of manslaughter.
Manslaughter
Prosecution counsel contended there could be little doubt that manslaughter by unlawful and dangerous act was made out given the nature of the assault, the location of the injuries and the relative frailty of Mr McLellan, and that all those matters would have adverted the reasonable person to an appreciable risk of serious injury.
The first three elements of manslaughter, that is, that an act or acts of the accused caused the deceased’s death, those acts were voluntary and the act or acts of the accused that caused the death of the deceased were unlawful are the same as for murder. For the reasons set out above, I am satisfied that the prosecution has proved beyond reasonable doubt those elements.
The fourth element of manslaughter is that the act or acts of the accused that caused the death of the deceased were dangerous, that is, a reasonable person in the position of the accused would have realised that his or her actions would expose the deceased to an appreciable risk of serious injury.
The test is an objective one. It is assessed by reference to a reasonable hypothetical person in the position of the accused. It does not require that a reasonable person would have realised that death or even grievous bodily harm would result. It is a lower threshold, that a reasonable person would have realised that the blows inflicted on Mr McLellan would expose Mr McLellan to an appreciable risk of serious injury.[110]
[110] Wilson v The Queen (1992) 174 CLR 313 at 332-333, 335-336.
The fact the injuries were not individually enough to cause death or that some injuries were of lesser significance than others does not detract from the relevance of their combined effect in assessing whether a person in the position of Mr Walters would have realised he or she was exposing Mr McLellan to an appreciable risk of serious injury. Punching another to the head of itself poses an appreciable risk of serious injury. Mr Walters knew Mr McLellan was older, smaller, had mobility issues and used a walking stick. Mr McLellan suffered more than one injury to the head as well as other injuries not attributable to resuscitation. Mr McLellan’s injuries caused visible bleeding and his face was bruised. His hair was blood soaked and his blood was spattered in locations around the lounge room, including the large bloodstain B8. I do not consider it a reasonable possibility that a reasonable person in Mr Walters position would not have realised his actions exposed Mr McLellan to an appreciable risk of serious injury. Accordingly, the prosecution has proved beyond reasonable doubt that the acts of Mr Walters that caused the death of Mr McLellan were dangerous in that a reasonable person in the position of Mr Walters would have realised their actions would expose Mr McLellan to an appreciable risk of serious injury.
I am satisfied beyond reasonable doubt that Mr Walters’ acts which were the substantial cause of Mr McLellan’s death were unlawful and dangerous.
Accordingly, I find Mr Walters guilty of the manslaughter of Mr McLellan.
ANNEXURE A
Statement of Agreed Facts
Dates of Birth
1.The accused, Johnny William Walters, was born 25 July 1973.
2.Amanda Smith’s report referred to the deceased’s date of birth as 17/7/1960
3.SAPOL Fingerprint Investigator Brevet Sergeant Lackovic took the deceased’s fingerprints for the purposes of formally identifying him. The deceased’s fingerprints were compared against a fingerprint card held at the Fingerprint Bureau which were taken on 7 June 1975 and related to a John Russell McLellan with date of birth of 13 March 1957.
4.The prints were also run against the National Automated Fingerprint Identification System and matched with prints taken for John Mark McLellan with date of birth 13 March 1955.
5.The deceased was recorded on the South Australian Police holdings with dates of birth of:
a. 13 March 1957
b. 13 March 1952
c. 13 March 1955; and
d. 13 May 1957.
‘000’ call
6.At 9:29pm, Alan Robson made a ‘000’ call to police from a landline telephone belonging to Trevor Shrubsole, following a request from Ian Gordon.
7.As at 23 May 2020, Alan Robson was the tenant of unit 14, 61 Walkerville Terrace, Gilberton.
8.As at 23 May 2020, Trevor Shrubsole was the tenant of unit 13, 61 Walkerville Terrace, Gilberton.
9.Units 13 and 14 of 61 Walkerville Terrace are located one of the smaller buildings in the complex, to the south-east, and not that identified in evidence by Ian Gordon on exhibit P20.
Mellor Court and surrounds
10.It is 600 metres on foot from the Buckingham Arms Hotel Bottle shop to the entrance to the Mellor Court Unit Complex.
11.As at 23 May 2020, units 42, 43, 46, 47, 48 and 50 at 7a James Street, Gilberton were vacant.
Alcohol
12.The deceased purchased a 700ml bottle of Johhny [sic] Walker Red (40% alcohol and 22 standard drinks) from the Buckingham Arms Hotel Bottle shop on 23 May 2020 at 1:08pm for $37.99 using his Commonwealth Bank Debit Card.
13.The Renmano casks (2) purchased by the accused from Fassina Liquor Store at Walkerville on 23 May 2020 at 16:53:07 were each 2 litres in volume. Renmano is an aged tawny wine. Renmano is 16.5% alcohol and a 2 litre cask contains 26.1 standard drinks.
14.The Big Bold Shiraz Bottle that could be observed under the accused’s right arm when he was seated in the front seat of the Taxi ride he took with the deceased on the morning of 23 May 2020 has an alcohol content of 13.5% and contains 8 standard drinks.
15.A 750ml bottle of McWilliams Royal Reserve Tawny (see picture 49 of volume 1 of exhibit P4) is 18% alcohol and contains 11 standard drinks.
CCTV evidence
16.Exhibit P12 are stills of relevant CCTV. The description for each still image is accurate. The relevant stills are as follows:
Page No
Reference
Camera Location/Body Worn Video
2
CCTV.17.1
Inside Taxi 2555, travelling between Mellor Court and Gouger St, Adelaide.
3
BSA1.1
Bank SA Camera onto Gouger Street, Adelaide
4
CCTV.18.1
2a James Street, Gilberton
5
CCTV.25.1
Bus 1803, at Victoria Square, Adelaide
6
CCTV.25.2
Bus 1803, at Victoria Square, Adelaide
7
CCTV.18.1
2a James Street, Gilberton
8
CCTV.18.2
2a James Street, Gilberton
9
CCTV.19.1
6 James Street, Gilberton
10
CCTV.12.1
Fassina Liquor, 89 Walkerville Terrace, Walkerville
11
CCTV.12.2
Fassina Liquor, 89 Walkerville Terrace, Walkerville
12
CCTV.19.2
6 James Street, Gilberton
13
CCTV.19.3
6 James Street, Gilberton
14
CCTV.19.4
6 James Street, Gilberton
15
CCTV.13.1
Bus 1806
16
CCTV.13.2
Bus 1806
17
CCTV.19.5
6 James Street, Gilberton
18
CCTV.22.1
Driveway into 61 Walkerville Terrace, Gilberton
19
CCTV.1.1
Inner area of 61 Walkerville Terrace, Gilberton
20
CCTV.22.2
Driveway into 61 Walkerville Terrace, Gilberton
21
CCTV.22.3
Driveway into 61 Walkerville Terrace, Gilberton
22
CCTV.26.1
Bus 1923
23
CCTV.26.2
Bus 1923
24
CCTV.31.1
Bus 1818
25
BWV.MAB.1
Body Worn Video of Constable Nathan Mabikafola, recorded at 61 Walkerville Tce.
26
JW.SS.1.1
Shell Service Station, 111 West Terrace
27
CCTV.13.1
Bus 1996
28
CCTV.13.2
Bus 1996
29
MS.ROI.1.1
Video recording by Brevet Sergeant James Cochrane and Constable Mark Ulpen, at Mellor Court
30
CCTV.7.1
Rydges Hotel, 1 South Terrace, Adeliade [sic]
31
AIT-1.1
Taxi 0866- travelling between Adelaide and 282 Henley Beach Rd, Underdale
32
CCTV.5.1
‘On The Run’ Underdale, 282 Henley Beach Road
33
BWV.DEUS.1
Body Worn Video of Constable Blake Deussen, adjacent 289 Henley Beach Rd, Underdale
34
BWV.DEUS.2
Body Worn Video of Constable Blake Deussen, adjacent 289 Henley Beach Rd, Underdale
Treatment of the deceased at scene
17.South Australia Ambulance Services (SAAS) paramedics, upon arrival at the scene, observed the deceased to be asystole.[111] This [sic] deceased remained asystole throughout attempts at resuscitation.
[111] Being when there’s no electricity or movement in your heart (no heartbeat).
18. At 10:25pm on 23 May 2020, the deceased was pronounced life extinct.
Arrest
19.At 3:08am on 24 May 2020, officers Yan, Deussen and Bothma arrested the accused outside Foodland Brooklyn Park located at 289 Henley Beach Road, Underdale.
Forensic Procedure
20.Emergency physician, Dr Henry Hancock, conducted a forensic procedure on the accused at 2:00pm on 24 May 2020. Brevet Sergeant Flitton attended and took photographs of the accused at that time.
DNA analysis
21.Clothing worn by the accused upon arrest was seized, including black Asics shoes and black Adidas track pants. These items were subsequently submitted to Forensic Science, SA for analysis, see exhibit P31.
22.The brown paper that contained the bottle of Port, located on the wooden coffee table at the scene (see exhibit P4, photograph 49), was seized and submitted for DNA analysis, see exhibit P30.
Thumbprint
23.The location of the thumbprint identical to that of the accused, located by Jennifer Louise Ince, is depicted in exhibit P36.
Mark Sullivan’s shoeprint
24.Mark Sullivan’s shows were seized (inter alia) seized [sic] by Detective Corbridge 24 May 2020. These were analysed against the bloody shoeprint located in the doorway of the loungeroom into the bedrooms. The left shoe was used to create the impression seen in exhibit P7.
Toxicology
25.Post-mortem blood and urine samples were collected from the deceased and analysed by Forensic Science SA.
26.Analysis of the blood sample showed:
a. A blood alcohol concentration of 0.14%;
b. Morphine at 0.054 mg/L;
c. Methylamphetamine at approximately 0.03 mg/L;
d. Amphetamine at approximately 0.02 mg/L;
e. Levetiracetam at approximately 6.4 mg/L;
f. Mirtazapine at 0.05 mg/L;
g. Codeine at 0.011 mg/L;
h. Amitriptyline at 0.13 mg/L;
i. Nortriptyline at approximately 0.02 mg/L;
j. Delta-9-Tetrahydrocannabinol (THC) at 9 µg/L;
k. 11-nor-9-carboxy-△9(Delta-9-)-tetrahydrocannabinol (carboxy THC);
l. Atropine; and
m. Pantoprazole.
27.Analysis of the urine sample showed the presence of morphine, codeine and monoacetylmorphine.
28.Blood and urine samples were collected from the accused at about 12:30pm on 24 May 2020. Analysis of the blood sample showed:
a. Methylamphetamine at 0.07 mg/L;
b. Amphetamine at 0.03 mg/L;
c. Diazempam at approximately 0.01 mg/L;
d. Nordiazepam at 0.09 mg/L;
e. 11-nor-9-carboxy-△9 –tetrahydrocannabinol (carboxy THC) at 54 µg/L
29.Analysis of the urine sample showed the presence of methylamphetamine, amphetamine, nordiazepam, oxazepam, temazepam and carboxy THC.
Deceased’s NDIS records
30.Ms Jodie Lee Franks of Anglicare SA wrote a letter dated 6 May 2019 in support of Mr McLellan’s request to access the National Disability Insurance Scheme.
31.Ms Franks wrote that Mr McLellan had been engaged with Anglicare SA since 2006.
32.In the report Ms Franks wrote:
a. John can struggle to regulate his emotions and finds it difficult to express his feelings without involving anger and or the use of illicit substances.
b. John admits to self-medicating using alcohol and other drugs as a coping mechanism for his depression/mental health issues.
c. John claims he was an assassin and has killed people before.
d. John has spoken of being depressed and wanting to end his life.
e. When John is feeling low he often dampens his feelings with alcohol (and or illicit substances).
33.In a letter dated 29 April 2019, Dr Damien Mead (General Practitioner) wrote the following in relation to the deceased;
a. His speech is unclear. He can become aggressive and frustrated when not understood or his needs are not met. He sometimes talks loudly and frightens people. His communication style is at best difficult and he requires daily support in order to enable him to communicate effectively with people around him and with people in authority.
The deceased’s antecedents
34.23 January 1987 – Possess unregistered firearm x 2
a. John Russell McLellan was convicted of two counts of possessing an unregistered firearm in the Port Adelaide Magistrates Court on 32 [sic] January 1987.
b. The offending related to the [sic] Mr McLellan’s possession of a pistol and a sawn-off shotgun.
c. At about 10:20pm on 21 September 1986 police conducted a search of Mr McLellan’s vehicle and located a sleeve from a jumper that had been made into a balaclava on the front passenger seat. Police located a sawn of [sic] .410 shotgun which had the serial numbers obliterated on the floor of the passenger side of the vehicle. Prior to police searching the vehicle Mr McLellan had been seen on the Salisbury Highway where empty bottles of beer and a .22 rimfire pistol had fallen from the vehicle.
d. When interviewed by police following his arrest Mr McLellan stated that he came to blow someone away who had been messing with his daughter. He later stated he was only going to scare him. Mr McLellan also told police:
i.he had the shotgun for a day and for [sic] the pistol for years;
ii.he knew the serial numbers on the shotgun were obliterated but could not explain why;
iii. he did not think the shotgun was stolen or obtained unlawfully; and
iv. the balaclava was to disguise himself when he did the job.
35.25 February 1987 – Robbery with violence
a. Mr McLellan was convicted in the Supreme Court of South Australia on 25 February 1987 of the offence of Robbery with violence committed on 22 September 1986. He was sentenced to 5 years and 6 months imprisonment. The circumstances of that offending related to Mr McLellan entering the Taperoo TAB wearing a balaclava and armed with a saw [sic] off 410 shotgun and stealing $1857. Mr McLellan ordered a female employee out the way and waved the shotgun around the room where there were about 5 customers present before jumping the main counter and taking money from an open drawer.
36.28 June 1994 – Common Assault
a. Mr McLellan was convicted of Common Assault in the Whyalla Magistrates Court on 28 June 1994. The offending related to Mr McLellan being a passenger in a taxi, becoming involved in a dispute with the driver whom he accused of being smart before proceeding to grab the driver’s glasses and throw them onto the back seat of the vehicle. Mr McLellan then struck the taxi driver above his left eye causing swelling and a headache. Mr McLellan exited the taxi and was seen to enter the front bar of the Westlands Hotel in Whyalla. Police attended and arrested him in the front bar of the hotel. Mr McLellan was grossly affected by alcohol at the time of his arrest.
37.16 June 1997 – Possess dangerous Article
a. Mr McLellan was convicted of the offence of Possess dangerous article in the Port Adelaide Magistrates Court on 16 June 1997. On 4 June 1997 police attended a [sic] Seaview Road, Henley Beach after receiving information that a male, Mr McLellan, had attended a Doctor’s surgery on Seaview Road and threatened to kill the doctor. Mr McLellan was reported to have had a knife protruding from his rear jeans pocket as he left the surgery. The Doctor did not wish police action taken in relation to the threats.
b. Police attended and located Mr McLellan outside the Ramsgate Hotel at Henley Beach. Police observed Mr McLellan appear to have the red handle of a knife sticking out of his rear jeans pocket. Police searched Mr McLellan and seized a red handled double serrated edged dagger with an approximately 9cm long blade.
c. Following his arrest Mr McLellan was taken to the Queen Elizabeth Hospital due to a concern over his condition possible [sic] due to the consumption of alcohol and drugs.
d. Mr McLellan told police that he always gets done for offensive weapons because people want to kill him, that he intends to use the knife to defend himself against the 2 bikies that want to kill him from the Gypsy Angels bikie group.
38.2 July 1998 – Larceny and Carry Offensive Weapon
a. Mr McLellan was convicted in the Adelaide Magistrates Court on 2 July 1998 of the offences of Larceny and Carry Offensive Weapon.
b. The offending related to Mr McLellan entering the Angas Street Welcome Mark [sic] in the company of another male and place a packet of ham down the front of his pants. The shop assistant contact [sic] police who attended and arrested Mr McLellan. In the course of searching Mr McLellan, police located a packet of ham secreted down his pants. Police located a hunting knife with a four inch blade in a leather sheath in Mr McLellan’s backpack.
c. Mr McLellan stated he carried the knife because he had been attacked a few times and that he would use it to defend himself if he were attacked again.
39.30 August 1999 – Resist Police
a. Mr McLellan was convicted in the Adelaide Magistrates Court on 30 August 1999 of offences including Resist Police committed on 29 October 1998. After being arrested for being unlawfully in premises on Wright Street Adelaide, Mr McLellan whilst being escorted to a police vehicle became agitated and tried to walk away from the police vehicle. When police attempted to handcuff Mr McLellan he swung his left leg around in a sweeping motion knocking an officer to the ground causing the officer to sustain cuts to both knees and their elbow. Police considered Mr McLellan to be affected by alcohol and drugs at the time and accordingly, they did not interview him.
40.4 July 2008 – Carry Offensive Weapon
a. Mr McLellan was convicted of the offence of Carry Offensive Weapon in the Adelaide Magistrates Court on 4 July 2008. Police attended upon Mr McLellan at the Royal Adelaide Hospital after receiving information that he had attended with the intention of being assessed under the Mental Health Act and had told staff he had a knife strapped to his leg. Police located a black handled steak knife concealed within Mr McLellan’s sock with a blade approximately 12cm in length.
b. Mr McLellan told police he carried the knife because he was going to kill the people who took his money and drugs because they didn’t have the right. Mr McLellan then stated he was just going to threaten them. He said he was going to use his hands, feet and the knife to threaten them. He just wanted them to give his money back. Mr McLellan told police he found the knife in the kitchen drawer and he kept it in his sock.
41.8 March 2016 – Carry an Offensive Weapon
a. Mr McLellan was convicted of the offence of Carry an Offensive Weapon in the Adelaide Magistrates Court on 8 March 2016. The offending related to Mr McLellan carrying a concealed knife on a crowded public transport bus. Police entered the bus and located a brown handled steak knife concealed in the right sleeve of Mr McLellan’s jacket. Mr McLellan told police he was boarding the bus to go home and wanted the knife for protection as he makes enemies but does not directly know of any person that wants to harm him.
Mark Sullivan
42.In addition to his video recorded conversation with police which commenced at 11:01pm on 23 May 2020 and concluded at 6:07am on 24 May 2020, Mark Sullivan provided 4 signed affidavits to police dated:
a. 25 May 2020; (12 pages)
b. 5 June 2020 x 2 (14 pages) and (2 pages)
c. 31 July 2022 (4 pages).
43.Neither the video recorded conversation nor Mr Sullivan’s first three signed affidavits contained any mention of the accused uttering the words “He wants to die and I’m going to help him.” The first time Mr Sullivan asserted to police that the accused had uttered such words was in his fourth affidavit dated 31 July 2022.
32
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