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 191Criminal
HINTON J:
Introduction
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…
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- R v Willoughby (No 2) [2017] SASC 191
- Case
- [2017] SASC 191
- Decision Date
CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
Decision
Reasons for decision
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.