R v Willoughby (No 2)

Case [2017] SASC 191

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal)

R v WILLOUGHBY (No 2)

[2017] SASC 191

Judgment of The Honourable Justice Hinton

15 December 2017

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - ACT

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT - DISEASE OF THE MIND, MENTAL DISEASE OR MENTAL INFIRMITY

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - ACCIDENT - EVENT OCCURRING BY ACCIDENT OR CHANCE

Mr Woonun Willoughby stands charged with the murder of Mr Oden Edgar on 29 November 2015 at the Athol Park home of the deceased, the deceased's partner, Tammy Wilson, and four children, SW, JW, IW and JQW. On 25 November 2015, a Wednesday, Patrice Adams, Mr Willoughby’s mother, and her younger son YF, Mr Willoughby’s brother, arrived at the Athol Park premises to stay a few days with Ms Wilson. Her intention was to attend an aunt’s funeral. In addition she wanted to take Mr Willoughby home to Brisbane. Throughout 2015 she had been worried about his mental health. Ms Adams first told Mr Willoughby that she and YF were in Adelaide on the Friday afternoon. About half an hour later Mr Willoughby arrived at the Athol Park premises. Mr Willoughby was not making sense of things he was talking about. Over the weekend, Mr Willoughby’s mental health deteriorated. It was alleged that on Sunday 29 November 2015, Mr Willoughby stabbed the deceased in the passage way of the Athol Park home causing his death.

Pursuant to s 269E(1) of the Criminal Law Consolidation Act 1935 (SA), an order was made that Mr Willoughby’s mental competence to commit the offence be investigated in the interests of the proper administration of justice. Under s 269E(2), the Court determined to proceed with the trial of the objective elements of the offence first. Mr Willoughby elected for the trial to be conducted by a judge sitting alone under s 269B(1) CLCA. The prosecution was put to proof. Mr Willoughby did not give or adduce any evidence.

Held:

1. The objective elements of the offence of murder for the purposes of s 269G(A)(2) of the Criminal Law Consolidation Act 1935 (SA) are the commission of an act by the accused that causes the death of the deceased.

2. Pursuant to s 269G(A)(2) of the Criminal Law Consolidation Act 1935, the objective elements of murder are proved beyond reasonable doubt.

Criminal Law Consolidation Act 1935 (SA) Part 8A, referred to.
Question of Law Reserved (No 1 of 1997) (1997) 70 SASR 251; Burns v The Queen (2012) 246 CLR 334, considered.

R v WILLOUGHBY (No 2)
[2017] SASC 191

Criminal

HINTON J:

Introduction

  1. Woonun Willoughby stands charged with the murder of Oden Edgar.[1]  The offence is alleged to have occurred on 29 November 2015 at 4 Glenroy Street, Athol Park (the Athol Park premises), the home of Mr Edgar and his partner…

Continue reading R v Willoughby (No 2)

Sign in free to access the full text

Details
AGLC
R v Willoughby (No 2) [2017] SASC 191
Case
[2017] SASC 191
Decision Date

CaseChat Overview and Summary

In the case of R v Willoughby (No 2), the defendant, Willoughby, was charged with the murder of Mr Edgar. The court was required to determine whether Willoughby was guilty of murder under the Criminal Law Consolidation Act 1935 (SA) (CLCA). The legal issues included whether the stabbing was accidental and if the act was unlawful. The court also needed to consider whether Willoughby's mental state at the time of the incident affected his criminal liability.

The court found that the stab wound to Mr Edgar's neck, which transected the trachea and penetrated the chest cavity, was the cause of death. The forensic evidence suggested that the stab wound was inflicted with a sharp knife and that the wound path was consistent with a stabbing motion. The court rejected the defence argument that the incident was accidental, stating that there was no evidence of a struggle or chance occurrence that led to the injuries. The court found that the objective elements of the offence of murder were proven beyond reasonable doubt, and the defendant's mental state did not negate his criminal liability.

The court concluded that Willoughby was guilty of murder, and the appeal against the conviction was dismissed. The court found that the stab wound was intentionally inflicted, and the act was unlawful. The court also rejected the argument that the incident was a case of manslaughter rather than murder.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Dr Langlois, a forensic pathologist, conducted an autopsy upon Mr Edgar. He observed:·a stab wound to the left side of the neck which transected the trachea (being about 2 cm in diameter) and penetrated the right side of the chest cavity. In his opinion death was the consequence of the resultant blood loss and an inability to breathe, all acting in synergy that were caused by the stab wound;·the entry point of the stab wound is depicted in P18 photograph 10 and is the “gaping defect in the skin” beneath the left ear and toward the back of the neck. It was five centimetres in length. ·when opposed the entry wound was roughly vertical. The upper end, positioned closest to the ear, appeared blunted whilst the lower end was pointed or clean cut suggesting that the implement causing the wound was sharp on one side only and that when it entered Mr Edgar the sharp edge was downwards towards the feet and the blunt edge closest the ear.·the wound path travelled left to right through the skin, entered the tissues of the neck, passed behind the sternum asteroid muscle, trans-sected the left common carotid artery, damaged the left sternum thyroid, cut the left lobe of the thyroid gland (which sits in front of the neck in the midline), cut but did not transect the left brachiocephalic vein and entered the right pleural. The breach of the right pleural allowed blood to enter the chest cavity causing the right lung to collapse.·the wound track into the body measured in length a minimum of 14.5 centimetres. It travelled left to right and followed a downward path;·within Mr Edgar’s body muscle defect was ragged or irregular, suggesting movement of the knife within the body;·using a knife to effect the wound observed would have required mild to moderate force;·the transection of the carotid arteries would have resulted in Mr Edgar losing consciousness within 15-30 seconds;·the wound to the left side of the neck could have caused arterial spray depending on how the neck was turned. If it was turned to gape then arterial spray could result. However, the neck could be turned to close, in which case there would likely be no spray;·P6 is a knife that could cause the wound observed to the left side of Mr Edgar’s neck that caused his death;·Mr Edgar also had:· an incised wound capable of being caused by a sharp implement such as a knife to the area just in front of the ear hole (P18 photograph 2383);· a second incised wound capable of being caused by a sharp implement such as a knife in the region of the collar bone on the left side of the neck (Exhibit P18 photograph 2383);· an incised wound or cut injury capable of being caused by a sharp implement such as a knife above the left ear (P18 photograph 2394);· the three wounds referred to immediately above are superficial and did not contribute to death. They are similar in orientation such that they could have been caused in one action. Thus the injuries to the left side of the head and neck could have been the product of two blows. The wound causing death being of a different orientation, could not have been caused as part of the one blow that caused the three incised wounds to the left side of the hand;· the three incised wounds are consistent with a strike, the stab wound causing death is consistent with a stabbing motion (i.e. the former reflect a top to bottom movement whilst the stab wound causing death reflects a movement from side to side);· the three incised wounds to the left side of the head and the stab wound to the left side of the neck all appeared to be recent;· on the right side of the head two incised wounds were observed, one 4 cm in length, the other 4.5 cm in length (P18 photograph 2379). Each was capable of having been caused by a knife. These two wounds were roughly in a line and could have been caused by the one action, possibly two. They were recently sustained;· on the back of his right hand Mr Edgar had an incised wound 2.5 cm in length. This wound was of a type that could have been caused by a knife moving transversely across the back of the hand (P18 photographs 2390, 2391). This could be a defensive injury;· Mr Edgar had a recent scratch-type wound to the left index finger (P18 photographs 2392, 2393). This could be a defensive injury;· Mr Edgar had some bruising that could have been caused at or around the time of his death. He also had a bruise to the inner right arm consistent with an injection site, the injection probably being administered at a time close to the time of death;· Blood was taken from Mr Edgar and submitted for toxocological analysis. The results indicated 0.038 mg of methylamphetamine per litre of blood and the presence of 47 micrograms of delta-9tetrahydrocannibol per litre and 76 micrograms of 11-nor9carboxydelta9tetrahydrocannibol per litre. Neither the methylamphetamine nor the cannibinols would have influenced the outcome of the stab wound to the left side of the neck that caused death;· The presentation of the wounds to the right and left side of the neck and head, and to the hand, were consistent with a minimum of three blows. Nothing about the presentation permitted a conclusion as to the position of Mr Edgar (i.e. whether sitting or standing, lying down can be excluded) when he was struck.H. Agreed Facts

Evidence

Evidence Before The Court

Justifications and excuses, such as self-defence, provocation and duress, that relieve a person otherwise guilty of murder of liability for the killing, are the subject of element (4). In view of s 269G(A)(3) CLCA the possibility that the act causing death was not unlawful by virtue of such act falling within one of the recognised justifications or excuses forms no part of the investigation I am to undertake. If I am wrong in that conclusion, it is in any event difficult to see exactly how the Court could have regard to any of the recognised justifications or excuses when they are, in the main, dependent upon the state of mind of the offender at the time at which he or she commits the act which caused death.The EvidenceA. Background Ms Wilson was Mr Edgar’s partner. They met in 1991 and had been in an on-again and off-again relationship for 24 years. In November 2015 Ms Wilson was living at 4 Glenroy Street, Athol Park, with Mr Edgar and four children, SW, JW, IW and JQW aged 12, 11, 10 and 8 respectively. Ms Wilson is the great-aunt and legal guardian of the children. She has cared for them for eight years. Ms Wilson and Mr Edgar usually slept in the lounge room of the Athol Park premises whilst the four children shared “bedroom 2” as marked on the mud map, exhibit P3. The bedroom marked “bedroom 3” was referred to by the occupants of the Athol Park premises as the “wardrobe room”. It contained a number of wardrobes that held Ms Wilson’s and the children’s clothes. Consequently they were in the habit of dressing in that room. When visitors stayed Ms Wilson and Mr Edgar would sleep in bedroom 2 with the children.B. Wednesday to Saturday, 25 – 28 November 2015 On 25 November 2015, a Wednesday, Patrice Adams, Mr Willoughby’s mother, and her younger son YF, Mr Willoughby’s brother, arrived at the Athol Park premises to stay a few days with Ms Wilson. Ms Adams was a distant relation of Ms Wilson. Ms Wilson had known her since she, that is Ms Wilson, was 11 years old. Ms Wilson said she had known Mr Willoughby since he was two years old. Mr Willoughby had previously stayed at her house. In fact there were times whilst he was in Adelaide when he did not have anywhere else to live. Ms Adams has four children. Mr Willoughby is her eldest child. Ms Adams’ other children are aged 17, 12, and four months old. She lives most of the time in Queensland. She said Mr Willoughby was right handed. Mr Willoughby left home when he was 16 years of age after finishing year 12 and came to Adelaide upon being accepted by the University of Adelaide to study music. Mr Willoughby would return home to Queensland during the holidays. Ms Adams told the Court that she noticed a change in Mr Willoughby’s mental health after he had come to Adelaide and after he had separated from a girlfriend. Mr Willoughby became very depressed and withdrawn. Ms Adams said that when Mr Willoughby came home a few months before November 2015 she learnt that he had started taking illicit drugs. He was very depressed, withdrawn, anxious and would not leave the house. He was sleeping a lot. Ms Adams said that he was not his normal self.

Decision

Reasons for decision

Any broader conception of accident in this case lacks an evidential foundation and would require me to speculate or engage in conjecture. There is no evidence of a struggle in which, by chance and without any human intervention or action, the injuries sustained by Mr Edgar were caused. Conclusion I find the objective elements of the offence of murder proved beyond reasonable doubt. Accordingly, pursuant s 269G(A)(2) of the CLCA, I record a finding that the objective elements of the offence have been established beyond reasonable doubt.

Ratio Decidendi

Legal Principle Established

I have attempted to summarise in some detail the addresses made by counsel. I indicate that despite an effort to be comprehensive I may not have included all arguments presented. Nonetheless I have in the course of preparing these reasons read the addresses of counsel on a number of occasions and taken all arguments presented into account in the course of arriving at my ultimate conclusion. Consideration I remind myself that the prosecution bears the onus of proving the objective elements and must do so beyond reasonable doubt. Mr Willoughby did not give or adduce any evidence. That was his right and I do not use it against him in any way. At the outset I also take the opportunity to warn myself, as required by s 13BA(6) of the Evidence Act 1929 (SA), not to draw from the admission of the evidence of SW, JW and IW under s 13BA any inference adverse to the defendant, and not to allow the admission of that evidence in the form of an audio visual record to influence the weight I give to it. In a nutshell the prosecution case is that Mr Willoughby stabbed Mr Edgar in the passage way just outside the lounge room door causing his death. The defence case is that accident cannot be excluded as a reasonable possibility, or, if it can, that this is really a case of manslaughter and not murder. The evidence subject of subsections A, B, D, E, F, G and I in the summary of the evidence provided above was either agreed, not disputed or not seriously disputed. The forensic contest focused, in the main, on what occurred on the Sunday immediately after Ms Adams sought refuge in the bathroom and until she, Ms Wilson and the children left the house (see subsection C). It is safe then to conclude that Mr Willoughby’s mental state deteriorated between the Friday when he first arrived at the Athol Park premises and the Sunday morning. I so conclude. I reject defence counsel’s submission that on a trial of the objective elements of an offence under s 269G CLCA, the court cannot have regard to evidence of the state of mind of an accused. Whilst satisfaction of proof of the subjective elements of an offence forms no part of the task on such trial, evidence of an accused’s state of mind may be relevant to any evaluation of the probability that he or she committed the objective elements of the offence charged. Here the evidence of Ms Adams and Ms Wilson as to the conduct of Mr Willoughby on the Sunday morning in the hours before Mr Edgar died suggests that Mr Willoughby was agitated and becoming aggressive. That evidence suggests it was more likely that he was the aggressor in the altercation with Mr Edgar. By contrast, there is no evidence to suggest any animosity between Mr Edgar and Mr Willoughby. There is no evidence to suggest that Mr Edgar was violently disposed toward Mr Willoughby that morning or at all. The evidence from the Hatzis’ and Ms Tsimilkis of disputes with Mr Edgar in the past does not rise so high as to establish that Mr Edgar was generally of a violent disposition. I appreciate that the toxicology results make plain that at a time proximate to his death Mr Edgar had taken methylamphetamine, but there is no evidence of the likely effect of that drug in the quantity detected upon his mood or behaviour. All direct evidence of his movements and disposition on the Sunday and in the days beforehand is bereft of any suggestion of anger or violence generally, let alone directed at Mr Willoughby.[8][8] I have not overlooked the statements made by Ms Wilson to Ms Cooper. As I have said, I have put it to one side. It was not embraced by either prosecution or defence. It was not put to Ms Wilson. It could provide some evidence of antagonism and motive on the part of Mr Willoughby and Mr Edgar, however, no witness suggested in oral evidence such antagonism and motive.