R v WBV

Case [2022] QSC 101

SUPREME COURT OF QUEENSLAND

CITATION:

R v WBV [2022] QSC 101

PARTIES:

THE QUEEN
v
WBV

(Defendant)

INDICTMENT:

BS No 562 of 2022

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

27 May 2022

DELIVERED AT:

Brisbane

HEARING DATE:

9-13 and 16-18 May 2022

JUDGES:

Callaghan J

ORDER:

Attempted murder – Not Guilty

Unlawful dealing with noxious substances – Not Guilty

The defendant is discharged on Indictment No 562 of 2022.

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – HOMICIDE – OTHER MATTERS – VERDICT – where the defendant is charged with attempted murder – where the victim is the defendant’s daughter – where the prosecution contends the defendant attempted a murder-suicide – where the defendant and victim were in an enclosed space and the car was turned on – where the car ran on diesel and utilised emissions reduction technology – where the defendant contemporaneously stated that “you can’t gas yourself with diesel” – whether the defendant had an intention to kill her daughter – whether the defendant is guilty of attempted murder – judge-alone trial 

CRIMINAL LAW – PARTICULAR OFFENCES – INJURY OR DAMAGE TO PROPERTY – OTHER MATTERS – VERDICT – where the defendant was alternatively charged with unlawfully dealing with explosive or noxious substances – where the defendant started a car and let it run in a confined space such that the air contained carbon monoxide, nitrogen dioxide, sulphur dioxide and acrolein dioxide (“the chemicals”) – where the car ran on diesel and utilised emissions reduction technology – where the defendant gave evidence that she believed running her car in an enclosed space could not cause injury to a person – where the injury to the victim was said to be mucosal and respiratory irritation – whether the quantity of the chemicals meant the air had become a “noxious substance” – whether, if she made the noxious substance, she did so wilfully – whether, if she wilfully made the noxious substance, she did so in circumstances that may cause injury to any person – whether the defendant honestly and reasonably believed that the circumstances were such that injury to any person would not be caused – whether mucosal and respiratory irritation constitutes “injury” – whether the defendant is guilty of unlawfully dealing with explosive or noxious substances – judge-alone trial

Criminal Code 1899 (Qld) ss 24, 28, 306, 470A, 615C, 669A
Criminal Code Amendment Act 1943 (Qld) s 21
Evidence Act 1977 (Qld) s 39B

Barca v The Queen (1975) 133 CLR 82, cited
R v Pentland [2020] QSC 231, cited

COUNSEL:

T Corsbie for the Crown

AJ Glynn QC with M Longhurst for the defendant

SOLICITORS:

Office of the Director of Public Prosecutions for the Crown
Sunshine Coast Legal for the defendant

INDEX

Overview…………………………………………………………………………..[3]

General directions……………………………………………………………….[18]

The law applicable to the offences..…………………………………………….[20]

Count 1 – Attempted murder………………………………………………[20]

Count 2 – Unlawful dealing with noxious substances…………………….[29]

The Crown case………………………………………………………………….[45]

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Details
AGLC
R v WBV [2022] QSC 101
Case
[2022] QSC 101
Decision Date

CaseChat Overview and Summary

The case of R v WBV involved the defendant, who was charged with attempted murder of her daughter and with unlawfully dealing with noxious substances. The defendant's daughter, WFM, was found unconscious in the car alongside her mother, and the case hinged on whether the defendant had intended to kill both herself and her daughter. The case was heard by a judge alone. The legal issues in the case were whether the defendant had the requisite intent to commit attempted murder, and whether she had unlawfully dealt with noxious substances by creating a dangerous atmosphere in the car. The court had to determine whether the defendant's actions went beyond a cry for help and whether she had created a noxious atmosphere with the intent to cause injury.

The court found that the defendant's actions were consistent with an intent to kill both herself and her daughter. The court relied on the text message sent by the defendant to her sister, which used language like "gassing" and "slipping away," indicating a clear intention to commit suicide. The court also considered the handwritten notes found by the police, which, although confusing, suggested a plan to end both lives. The court found that the defendant's previous manifestations of suicidal ideation did not negate the conclusion that on 26 July 2019, she had indeed intended to kill herself and her daughter. Regarding the charge of unlawfully dealing with noxious substances, the court found that while the car's exhaust created a dangerous atmosphere, there was insufficient evidence to conclude that the defendant acted with the requisite intent to cause injury. The court found that the defendant genuinely believed that running the car in an enclosed space would not cause injury.

The defendant was found not guilty of both charges and was discharged. The court emphasised the importance of the text message and the defendant's contemporaneous statements in concluding that she had the requisite intent for attempted murder. The court also highlighted the lack of evidence to support the charge of unlawfully dealing with noxious substances, particularly regarding the defendant's intent to cause injury.

Orders

Orders of the court

Attempted murder – Not Guilty

Unlawful dealing with noxious substances – Not Guilty

The defendant is discharged on Indictment No 562 of 2022.

Background

Background to the litigation

It was the combined effect of these perceptions, fuelled by alcohol, that placed her in the car on 26 July 2019. The evidence compels that conclusion. That might have meant she thought life seemed, simply, unliveable. Or it might have made her think that in its then form, although it was unbearable, it might improve if she received more attention and assistance, and if opprobrium was directed to, and quickly felt by FTS. However, an assessment as to the state of the relationship cannot and does not allow for a further conclusion that would permit differentiation between these possibilities. More background: the defendant’s mental health history The defendant had a history of potentially relevant behaviour. On 17 March 2018, the defendant stated to FTS’s mother that she did not want to live anymore, and she was taking WFM with her. The police attended the defendant’s residence. She had consumed one bottle of wine that evening and consumed an increased dosage of her prescribed anti-depressants. She was voluntarily transported to Nambour Hospital, where she denied overt depressive symptoms and having suicidal plans or intent. After being discharged, on 18 March 2018, the defendant left a message with Mental Health Services reflecting ongoing suicidal ideation and a plan to kill herself and WFM by jumping in the pool. She had consumed more than a bottle of wine that evening. After denying that she had made those statements, the defendant was involuntarily transported to Nambour Hospital where she denied having suicidal intent or a plan. She was released on 22 March 2018. On 17 June 2018, the defendant sent to her psychologist a message that indicated she planned to cut her wrists. Police and ambulance officers attended her residence at the time. She was transported to Nambour Hospital under the Mental Health Act 2016 (Qld) for assessment and discharged on 28 June 2018. On 12 January 2019, the defendant contacted the Lifeline phone counselling service and indicated she was having suicidal thoughts. When police and a clinical nurse attended the defendant’s residence, she denied an intention to act on those suicidal thoughts. She was neither admitted nor detained. Events of 26 July 2019 CCTV footage from the local shopping centre for 26 July 2019 depicts the defendant, accompanied by WFM, buying groceries and four bottles of wine. After returning home, at indeterminate points during the day, the defendant wrote two notes. They were later found by the police in a rubbish bin at the defendant’s residence. One note stated the following:“[FTS] Killed us!!My estate goes to Boys + [WFM][…] I couldn’t do any more sorry.” Another note stated the following: “The abuse has been too much!!No one understandsI leave my estate to [WFM] + Boys[FTS] has killed two beautiful girls He destroyed my life and told me how worthless I am, how spoiled my kids areI’m checking out because he said [WFM] was my fault and I’m a shit mother” At 3:47pm, the defendant’s sister sent a “check-in” message. The defendant then replied at 4:46pm: “[WFM] is nearly gone and me too. Gassing ourselves”. A subsequent message, sent within the minute, read: “Goodnight, beautiful”.

Evidence

Evidence Before The Court

A 24-minute audio conversation between the defendant and Senior Constable Lyndon Hobbs was tendered by the Crown. In this conversation, the defendant: (a)accepted that the situation was “not okay”;(b)denied needing assistance;(c)stated that she “sat in the car with her, doors open, everything was open, it’s just stupid…”;(d)stated that she had consumed a bottle of wine over the course of approximately six hours;(e)accepted sending a message to her sister; and(f)accepted that she had written a note but stated that it was not a suicide note and she was not trying to kill herself.Atmospheric testing evidence Police seized the defendant’s Mercedes Benz ML350 station wagon. Officers from the Queensland Police Service and Queensland Fire and Emergency Services conducted a data gathering exercise on 8 January 2020. This test took place in the garage at the defendant’s residence. The defendant’s vehicle was placed into the garage, and:(a)the driver’s side door of the station wagon was fully opened;(b)the sunroof was fully opened;(c)all windows and doors to the garage were closed; and(d)a towel was placed at the base of the internal door into the house. The vehicle was then turned on and allowed to run for 240 minutes. The atmosphere inside the garage was tested in real time by electronic monitoring equipment for oxygen, carbon monoxide, nitrogen dioxide, and sulphur dioxide. Physical samples were taken after 0 minutes, 80 minutes and 240 minutes had elapsed. The testing was done at multiple locations:(a)The front passenger seat;(b)The rear passenger seat;(c)Immediately outside the front driver’s side door; and(d)Outside the garage (as a control sample),Pathologists Dr Natalie MacCormick, pathologist, produced reports that interpreted the results of these tests. Given the importance of this evidence to the result, a significant part of her evidence will be reproduced. Dr MacCormick provided the following table: Dr MacCormick reported:[7] [7]Footnotes omitted. Emphasis in original.“Carbon monoxide (CO)25. Carbon monoxide is formed during incomplete combustion of carbon containing compounds. It is odourless, colourless and tasteless; making it difficult to detect. Carbon monoxide poisoning can easily occur when burning fuel (for example, an open fire place) in a poorly ventilated space and is a significant cause of morbidity and mortality.26. Carbon monoxide acts as a chemical asphyxiant by preferentially binding with haemoglobin (the molecule that delivers oxygen to the cells in the body). As a result, there is a decreased ability to deliver oxygen to the organs and tissues. The brain is the most sensitive organ to carbon monoxide poisoning.27. Symptoms of acute exposure are nonspecific and often overlooked resulting in tinderdiagnosis. Mild symptoms include headache, nausea and dizziness. More severe exposures (higher levels or longer duration of exposure) will cause: poor coordination, cardiac arrythmias, chest pain, confusion, shortness of breath, fainting, fast heart rate, blurred vision, seizures, coma and death. 28. Carbon monoxide poisoning can be diagnosed by blood test to measure the carboxyhaemoglobin level (COHb). This is the percentage of haemoglobin bound to carbon monoxide, and normally ranges between 0-5%. Adults with COHb levels above 15% are usually symptomatic. COHb levels over 25% indicate severe exposure. Children are more susceptible to the acute effects of carbon monoxide poisoning due to their increased respiratory and metabolic rates; and may develop symptoms with COHb levels less than 10%.29. Treatment primarily involves delivery of 100% oxygen or hyperbaric oxygen for severe exposures.30. Long term effects after carbon monoxide exposure can include delayed neurological and neurocognitive impairment. This affects up to 50% of adults following symptomatic acute poisonings. Outcomes are more favourable for children with between 10-20% having delayed neurological impairment following severe poisoning.31. Australian occupational exposure standards recommend a time weighted average (TWA) of under 30ppm (parts per million) over 8 hours. The short-term exposure limit is 200ppm over 15 minutes. Evidence suggests that a 4 hours exposure to l00ppm can cause symptoms with COHb levels over 10%.32. Based on the re-enactment data, there was a potential exposure of up to 130ppm of carbon monoxide for an unknown duration of time. This exposure exceeds occupational standards. This is of particular concern for a 4 year old child due to children's increased susceptibility to carbon monoxide poisoning. It is likely that [WFM] would have been symptomatic, and her COHb level probably exceeded 10%. Hydrogen sulphide (H2S)33. Hydrogen sulphide exposure can quickly and dramatically cause death at high concentrations (>700ppm). It is an industrial hazard in gas and coal production, the petroleum industry, sewers, and manure pits.34. At lower concentrations (>100ppm) hydrogen sulphide is an intensely irritating gas which causes irritation to the eyes, nose and respiratory tract. It has a pungent odour of rotten eggs. At higher concentrations it causes olfactory, nerve paralysis (loss of sense of smell), which can mislead an exposed individual to believing the gas has dissipated. At even higher levels (>1000ppm) it is renowned for "knocking down" individuals and causing rapid unconsciousness and death.35. Based upon the re-enactment data, the hydrogen sulphide levels were up to 2.l ppm in the garage and 0.7ppm in the rear passenger seat. These levels are well below occupational standards and unlikely to have caused any significant adverse effects.Nitrogen dioxide (NO2)36. Nitrogen dioxide is formed from combustion emissions. Common sources of nitrogen dioxide include cars, buses, trucks, and powerplants. It is also produced during anaerobic fermentation of hay and com, resulting in hazardous conditions in silos.37. Nitrogen dioxide has an unpleasant harsh odour. Exposure to nitrogen dioxide can cause: cough, eye/nose/throat irritation, shortness of breath, chest tightness and pain, exacerbation of underlying lung disease, pulmonary oedema, and chemical pneumonitis. Very high levels can cause severe respiratory symptoms and sudden death, often observed in silo accidents, hence the term silo filler's disease.38. Exposure to nitrogen dioxide concentrations of >20ppm may produce respiratory tract injury. Concentrations over 50ppm, have resulted in bronchiolitis and focal pneumonitis with spontaneous recovery. Over l50ppm, bronchiolitis fibrosa obliterans with death in 3-5 weeks has been observed. Over 300ppm, rapid death from pulmonary oedema is likely.39. Based upon the re-enactment data, the nitrogen dioxide concentrations potentially reached 6.8ppm in the rear seat of the vehicle. This concentration exceeds the occupational short-term exposure limit of 5ppm, and would have likely produced mucosal ( eye, nose, throat) and respiratory irritation.Sulphur dioxide (SO2)40. Sulphur dioxide is an environmental exhaust. It has a pungent odour (like a burnt matchstick) and can cause mucosal irritation and bronchospasm, especially in susceptible individuals with asthma. Exposure to higher concentrations can cause the severe lung condition referred to as Acute Respiratory Distress Syndrome (ARDS).41. Based upon the re-enactment data, the sulphur dioxide concentration was up to 3.6ppm in the passenger rear seat. This concentration is above the time weighted average level of 2ppm, but below the short-term exposure level of 5ppm. This concentration likely caused mucosal (eye, nose and throat) and respiratory irritation.Acrolein42. Acrolein is an organic compound formed during combustion of petroleum fuels and biodiesel. It is also present in cigarette smoke, used as a herbicide, and formed during overheating of oils/fats in cooking. It has an acrid smell like burned fat.43. Exposure to low concentrations (0.04-0.4ppm) will cause eye, nose and throat irritation. Acute exposure to concentrations >10ppm are potentially lethal. There have been case reports of children developing severe pulmonary complications and dying following exposure to acrolein vapour from overheated cooking oil.44. Based upon the re-enactment data, the acrolein levels could have potentially reached 270ppbv (0.27ppm) inside the vehicle. This concentration is above the occupational time weighted average recommendation of 0.lppm, but below the short-term exposure level of 0.3ppm. It is likely to have caused mucosal ( eye, nose and throat) and respiratory irritation.”

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Dr Kovacevic also gave evidence that where the defendant had previously cited her relationship with WFM as a “protective factor” against the implementation of suicidal ideation. This leaves open questions about whether the risk of genuine suicide was increased if the actions contemplated embraced also the death of WFM.Consideration and verdictCount 1 I agree with the prosecution’s submission that much of the defendant’s sworn evidence was unsatisfactory and should be put to one side. In particular, the evidence identified at [85](c) and [85](e) is nonsensical. The assertion at [85](g) also cannot be accepted. The prosecution goes on and points to a combination of circumstances from which it is said that the requisite intent can be inferred, and which establishes that the defendant’s actions went beyond a “cry for help”. This conclusion as to murderous intent is said to be compelled when regard is had to telling statements made contemporaneously with the defendant’s actions. The handwritten notes may not establish much apart from (perhaps drunken) confusion. It made no sense for the defendant to write about the killing by FTS of “us” and “two beautiful girls”, whilst at the same time leaving part of her estate to WFM. However, attention is drawn to the text message that the appellant sent to her sister. Mr Corsbie points to the language in which the text was expressed. Terms like “gassing” and “slipping away” are unambiguous and reflect suicide intention. A notional observer at the defendant’s residence at the relevant time, viewing a scene in which the defendant and her daughter were asleep in a vehicle that was parked within a confined space with its motor running, and then read that text message, would reach the commonsense conclusion to be drawn from those circumstances – namely, that the defendant had constructed a situation that was calculated to end their lives. Indeed, at the point this message was sent, it seems likely that, if only because she had been drinking, the defendant was in the process of falling asleep and may well have felt that she was “nearly gone” just as she believed WFM to be. Irrespective of the state of mind that may have existed prior to this point, it can be said that at least by then, an intention to kill – both herself and WFM – had crystallised. There is substance to the argument, and it was put persuasively by Mr Corsbie. It is established that the existence of the requisite intent was certainly a possibility and may even have been a probable state of affairs as at the time the text was sent. The defendant made a series of arguments against that conclusion. Previous manifestations of suicidal ideation might also be characterised as a “cry for help”. This might support the defendant’s case, in that it demonstrates a propensity to behave in such a way. On the other hand, these incidents did not, clearly, succeed in obtaining all the help that the defendant needed, or desired, and the events of 26 July 2019 were by any reckoning an escalation. This evidence does not, however, support any conclusion as to the extent to which the defendant was prepared to escalate, nor whether it went to the point of compelling her to end her own life. Given the conclusion that I have reached, there is no need to consider all of them.