R v Willoughby (No 2) - [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

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 Tammy Wilson.
[1] Criminal Low Consolidation Act 1935 (SA), s 11.
Pursuant to s 269E(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA) the Court has ordered that Mr Willoughby’s mental competence to commit the offence with which he is charged be investigated in the interests of the proper administration of justice. Under s 269E(2) CLCA I have 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, which bears the onus of proving the objective elements beyond reasonable doubt,[2] was put to proof. Mr Willoughby did not give or adduce any evidence.
[2] R v Pfitzner (Unreported, 16 October 1996, No S5833, Duggan J).
I am satisfied beyond reasonable doubt that Mr Willoughby did perform an act that caused the death of Mr Edgar. That is, I am satisfied that the objective elements of the offence of murder with which Mr Willoughby has been charged have been proved beyond reasonable doubt. My reasons follow.
Trial of the objective elements
Section 269G CLCA proscribes the approach a court is to take on a trial of the objective elements of an offence. It provides:
269G—What happens if trial judge decides to proceed first with trial of objective elements of offence
If the trial judge decides to proceed first with the trial of the objective elements of the offence, the court proceeds as follows.
A—Trial of objective elements of offence
(1)The court must first hear evidence and representations put to the court by the prosecution and the defence relevant to the question whether the court should find that the objective elements of the offence are established against the defendant.
(2)If the court is satisfied that the objective elements of the offence are established beyond reasonable doubt, the court must record a finding that the objective elements of the offence are established; but otherwise the court must find the defendant not guilty of the offence and discharge the defendant.
(3)On the trial of the objective elements of an offence, the court is to exclude from consideration any question of whether the defendant’s conduct is defensible.
The objective elements of the offence of murder
Whilst s 11 CLCA creates the offence of murder, the elements of that offence are provided by the common law. Putting to one side reckless murder, the elements of the offence are as follows:
1the accused caused the death of the victim;
2the accused acted voluntarily and deliberately;
3at the time the accused caused the victim’s death, he:
a. intended to kill the victim, or
b. intended to cause grievous bodily harm to the victim.
4the killing was unlawful.
Section 269A(1) CLCA defines an objective element of an offence as meaning an element that is not a subjective element. A subjective element of an offence is defined in the same section as meaning voluntariness, intention, knowledge or some mental state that is an element of the offence.
Having regard to the definitions of an objective element of an offence and a subjective element of an offence, in my view the objective elements of the offence of murder are contained in element (1) as stated above, namely, the commission of an act by the accused that causes the death of the deceased.
In my view elements (2) and (3) are subjective elements within the meaning of s 269A(1) CLCA.
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 Evidence
A. 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.
Ms Adams took Mr Willoughby to see a doctor that she knew which resulted in Mr Willoughby being prescribed medication.
At the end of November 2015, Ms Adams decided to travel to Adelaide with her son, YF. Her intention was to attend an aunt’s funeral. In addition she wanted to take Mr Willoughby home. Throughout 2015 she had been worried about his mental health.
As mentioned Ms Adams came to Adelaide on the Wednesday and planned to stay at Ms Wilson’s house until the Monday.
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. He was happy to see YF. Mr Willoughby was not making sense of things he was talking about. He wanted to have long conversations with his mother. Ms Adams said that the topic of their conversations was always about a portal, and that he needed to get to a portal. Ms Adams said that Mr Willoughby was talking about healing, and had some books on healing stones. He also had books about the universe, healing, and “spiritual stuff”. When they were sitting out the front a car went past and Mr Willoughby said that the person in the car had been following him all day and that he had been walking around all day trying to get away from these people. Mr Willoughby did not say who the people were. He talked about trying to get away from people more than once.
On the Friday night Ms Wilson, Mr Edgar, Mr Willoughby and Ms Adams had a few drinks. Mr Edgar and Ms Wilson also smoked cannabis. In cross-examination Ms Wilson said that Mr Willoughby smoked cannabis as well. She did not see Mr Edgar inject methylamphetamine and had not seen him do so in the past. The evening was punctuated by two trips to the pub by Ms Adams.
Ms Adams mentioned that she brought a six pack home with her after one of her trips to the pub. She said that Mr Willoughby drank three of the beers out of her six pack that night. This was unusual as he had helped himself when normally he would ask permission. Ms Adams asked Mr Willoughby not to take any more. He just took the beer anyway. This too was unusual for him. She repeated this in cross-examination adding that normally Mr Willoughby was a very polite young man. He had lived with her, she said, throughout most of his schooling and was always a happy young man, polite and gentle. She had never known him to be angry with her and he had never pushed her.
That night Ms Adams, Mr Willoughby and YF slept in the lounge room.
Ms Adams did not see Mr Willoughby consume drugs on Friday night.
The following morning Ms Adams saw Mr Willoughby smoking cannabis in the kitchen with Mr Edgar and Ms Wilson. Ms Adams said she asked Mr Edgar and Ms Wilson not to give him anymore. She had noticed that after he smoked cannabis his behaviour changed.
Ms Adams said that during the course of Saturday Mr Willoughby’s behaviour was becoming more and more erratic. He would be happy, then really sad, then really paranoid. He was not sleeping and was not eating. Ms Adams said that he thought people were talking about him.
On the Saturday night Mr Edgar was cooking dinner. Mr Willoughby approached and started to take meat out of the frying pan and eat it. Ms Adams told him to stop and wait so that the children could eat first. He continued to eat from the frying pan until the fork he was using was taken from him. He then just stared at Ms Adams.
Earlier that day Mr Willoughby had been walking around the house talking a lot. Ms Wilson said she heard him saying they were all going to die; “everything he was saying was just, sort of, farfetched”. Ms Wilson told Ms Adams that Mr Willoughby needed to see a doctor.
Ms Wilson said later that day “all of us” smoked cannabis. She clarified that that included Woonun.
In cross-examination Ms Wilson said that Mr Willoughby had been talking to himself since he arrived, but mainly on the Saturday and Sunday and then after he had smoked cannabis.
C. Sunday, 29 November 2015
In what follows I interweave the evidence of Ms Wilson and Ms Adams in an effort to reproduce the narrative chronologically before referring to the evidence of IW, SW and JW.
Mr Willoughby had slept out the back on the Saturday night. Ms Adams let him in to the house on the Sunday morning. In her experience Mr Willoughby would be up and down all night and would not really sleep.
After Ms Adams let him in, Mr Willoughby went into the lounge room to lie down on the mattress on the floor. He was using Ms Adams’ tablet to listen to music. Ms Adams started cleaning up as they were planning on leaving the following day. She asked Mr Willoughby, “Woonun, do you mind if I wash your clothes?” He responded “[y]ep, that’s fine”. Ms Adams then grabbed his clothes and put them in the laundry before going back into the lounge to resume cleaning. Ms Adams then observed Mr Willoughby get up, go to the laundry, retrieve his dirty clothes and put them back on. This was about 10.00am in the morning she said.
Ms Adams had seen him earlier smoking marijuana with Mr Edgar and Ms Wilson in the kitchen. This was within half an hour of letting Mr Willoughby in that morning. Mr Willoughby was standing and Mr Edgar and Ms Wilson were sitting at the table. She did not see how much cannabis or marijuana he smoked. She did not see him smoke cannabis again that day.
Ms Wilson said that she first saw Mr Willoughby Sunday morning at around 9-9.30 am in the kitchen. He was making a “cuppa”. Ms Adams was also in the kitchen and was talking with her son. When their conversation ended Mr Willoughby went outside. Ms Wilson noticed that Mr Willoughby’s cup was half full of coffee and sugar in its powder form. She showed the contents to Ms Adams. She tipped it out. Mr Willoughby then came back inside and asked after his coffee. He was told it had been tipped down the sink. He then walked into the lounge room. Ms Adams followed him and asked him if he wanted her to make him a coffee. She then returned to the kitchen and made herself a coffee before going back into the lounge room. Ms Wilson went into the childrens’ bedroom where they were watching a movie with Mr Edgar.
From the childrens’ bedroom Ms Wilson heard Ms Adams ask Mr Willoughby if she could watch a movie. Ms Wilson went into the lounge room and helped set up the DVD player so that they could do so before returning to the children’s bedroom. Ms Wilson then heard Ms Adams yell, “It’s not all about you Woonun”. Minutes later Ms Wilson and Ms Adams were in the kitchen where Ms Adams explained that “Woonun’s being a dickhead playing around with the remote control”.
In her evidence Ms Adams said she had noticed a change in Mr Willoughby’s behaviour toward YF. She said that when she returned to the lounge room from the laundry, YF and Mr Willoughby were both in the lounge room watching television. YF walked past her and out into the backyard and she could see that he was upset. Ms Adams followed YF and asked him what had happened. YF said “Woonun said something nasty to me”. Ms Adams said that she had walked back inside and said to Mr Willoughby “[y]ou can be angry at me but don’t be angry at [YF]”. Ms Adams said that Mr Willoughby had previously sworn at her and had said “[e]ff you, eff you” to her. Mr Willoughby had been angry but he was not loud.
Ms Adams said that after she told him off, Mr Willoughby did not really say anything to her.
It was not long thereafter that, whilst Ms Wilson and Ms Adams were in the kitchen, Ms Adams’ phone rang. It was Mr Willoughby’s father. Ms Adams took the phone to Mr Willoughby who was outside. She then sat on the couch in the back yard.
Ms Wilson told the Court that five minutes later Mr Willoughby returned to the kitchen, put the phone on the table in front of his mother, and then made his way into the lounge room. Ms Wilson said that Mr Willoughby kept walking through the kitchen eavesdropping, wondering what Ms Wilson and Ms Adams were talking about. She said that he was “talking weird, saying that we were all going to die.” At some point he was outside again and Ms Wilson asked him to leave because he was scaring the children. She did this after Mr Edgar had come into the kitchen and said to her that it would be best if she told Mr Willoughby to leave.
Mr Willoughby came inside, went into the lounge room and began to pack his things. By this time Ms Wilson was making her way to the bathroom to take a shower.
Ms Adams told the Court that she received a telephone call from Mr Willoughby’s father on the Sunday morning. She said she asked him to talk to Mr Willoughby. He agreed, so she took the phone to Mr Willoughby who was in the backyard and gave it to him. She said to Mr Willoughby, “[t]alk to your dad”, and he appeared to do so, but she could not hear what he was saying.
Ms Adams sat on a couch in the backyard whilst Mr Willoughby was on the phone. When the call came to an end Mr Willoughby walked over to where she was sitting and handed her the phone.
Ms Adams said she then rang her uncle as she was becoming frightened by Mr Willoughby’s behaviour. He was getting more angry, more delusional and very paranoid she said. Mr Willoughby had remained in the backyard after the call to his father and was behaving very, very strange. He was staring at the sky and started screaming at the top of his lungs. He was not saying any words. She spoke to Mr Edgar about calling the police.
Ms Adams said that Mr Willoughby then went and stood over by the shed. He then screamed Ms Adams’ name and ran towards her. He was running in an “angry way”, very fast and staring straight at her. She was still sitting on the couch with YF next to her. She screamed at YF to run inside, which he did, and she ran after him. They went into the lounge room and sat on the couch. Mr Willoughby ran in after them. He came up to Ms Adams and pushed her and screamed in her face. He did not say anything but just yelled.
Ms Adams said that she was sitting when he pushed her. He pushed her upper chest area hard enough to push her back into the chair. YF was sitting next to her. YF said “[d]on’t do that to mum”.

Ms Adams said that while this was happening, Ms Wilson was in the shower and the four children and Mr Edgar were in the bedroom watching television.
She said that earlier on the Sunday Mr Willoughby had referred to the portal. He had told her that, “I had a really good experience –something I need - I was at the portal”, or something like that. He said he had, “An awesome experience.” Ms Adams could not remember if she said anything to him. Mr Willoughby did not say what the portal was and she did not ask him. This was before he was outside staring at the sky.
After Mr Willoughby pushed Ms Adams she ran to the bathroom, screaming as she went at YF to run into the childrens’ room and close the door. He did that.
Ms Adams ran into the bathroom and locked the door. She was screaming. She said Mr Willoughby moved in the direction of the kitchen. He was in front of her.
Ms Wilson said that whilst she was in the shower she did not hear anything unusual or anything that attracted her attention. After her shower, Ms Wilson went into the wardrobe room to get dressed. As she was looking for her clothes she heard someone screaming. She could not make out any words. They were just yelling. Ms Wilson said it sounded like Ms Adams. Ms Wilson then heard another voice which sounded like someone chasing Ms Adams. Ms Wilson said it sounded like a male voice was chasing Ms Adams. Ms Wilson said the male voice sounded like Mr Willoughby.
Ms Wilson then heard YF say loudly, “[d]on’t hurt my mum”. YF sounded scared. Ms Wilson heard a bit of a thump from the passage. She did not know if it was a door or the cupboard in the passage that had made the thump. The sound came from the direction where the cupboard was in the hallway. There was more than one sound.
Ms Wilson said that she then opened the wardrobe room door. She said she froze and that she did not come out straight away. She could see Mr Edgar’s back facing towards her. Mr Willoughby was standing in front of Mr Edgar. Mr Edgar was closest to Ms Wilson.
Ms Wilson could see Mr Willoughby’s face and his shoulders. Mr Willoughby was taller than Mr Edgar. Ms Wilson said:[3]
[3] T54-56.
A.I seen him stabbing my husband.
Q.Describe the action that you saw him do. You indicated before with one of the arms or both arms.
A.One arm.
Q.One arm. Can you just describe the motion that you saw the one arm.
HIS HONOUR
Q.Or you can do it and we will describe it.
A.When I opened the door I seen him was going like that (INDICATES).
XN
Q.Was his elbows bent.
A.His elbow was bent and he was stabbing my husband like that (INDICATES).
Q.Moving from up to down. Did you see whether Mr Willoughby had anything in his hand.
A.Not at that time.
Q.That you didn’t see either way.
A.No.
HIS HONOUR
Q.You have his elbow out and his arm out at 90 degrees to his shoulder.
A.Yes.
Q.And a fist raised above your head and coming down in a straight motion.
A.Yes.
XN
Q.Did you see whether Mr Willoughby’s hand made contact with Don.
A.I heard it.
Q.What did you hear.
A.I heard a thump (INDICATES).
Q.What part of Don’s body did it appear to be moving towards.
A.In his chest (INDICATES).
HIS HONOUR: For the benefit of the transcript, Miss Wilson strikes her chest making a sound indicative of what she heard. If at any time you need a break Miss Wilson you just sing out.
XN
Q.You said his chest, what part of his chest.
A.His upper chest.
Q.Are you able to indicate on yourself.
A.Here (INDICATES).
Q.So indicating just at the collar line of the top that you have got on.
A.Yeah.
Q.How many times did you see him make that motion.
A.It happened so quick. I would see (sic) say four times, may be four or five times.
Q.After you saw that, what’s the next thing that you saw with those two men.
A.They fell.
In cross-examination Ms Wilson said she saw a lot of blood but did not know whose blood it was nor who was injured.
From the bathroom Ms Adams said she heard scuffling noises from the lounge room. She said she heard Mr Edgar’s voice say, “No Woonun, no, don’t”. She did not hear Mr Willoughby say anything.
Ms Adams then heard Ms Wilson screaming. At this point she emerged from the bathroom and saw Ms Wilson standing between the bedroom door and the lounge room door. She repeated this in cross-examination. She could see Mr Edgar and Mr Willoughby. They were both face down in the doorway of the lounge. In cross-examination she said she could see blood, a large pool of blood around the two men. Ms Adams could see Mr Willoughby had a knife in his hand.
In cross-examination she agreed that in her statement there was no mention of her having seen the knife in Mr Willoughby’s hand prior to seeing him put the knife in his mouth (which he did later). Nonetheless, when asked she said she was sure she saw the knife in Mr Willoughby’s hand whilst he was on the floor. She could not remember which hand. He was face down, his eyes were open and he was not saying anything. She could not tell if he was bleeding.
Ms Adams said she was screaming at the kids to get out. She then saw Mr Willoughby start to move. She ran past the two men on the floor. She did not stop. By the time she got to the front door, Mr Willoughby was up on his feet. He still had the knife in his hand. Ms Adams turned around once at the front door, waiting for the children to run past her. It was at this point that Mr Willoughby started getting up. She heard Ms Wilson screaming at her to run. She ran outside then saw Mr Willoughby coming out.
Ms Adams said she saw Mr Willoughby push the knife down his throat. At this time Ms Wilson was between her and Mr Willoughby. Ms Wilson was outside.
Ms Wilson said she moved to the front door. Her next memory was of Ms Adams standing at the door trying to call the police on her mobile. She did not see where Ms Adams had come from. Ms Wilson could see all of the children out the front of the house.
Ms Wilson then heard Ms Adams scream. She turned and saw Mr Willoughby jumping up. He then, “turned the knife on himself”, she said.
As he got up Mr Willoughby took off his shirt. It was covered in blood. Ms Wilson yelled at Ms Adams to run. Mr Willoughby moved towards Ms Wilson. As he did so she saw him shove the knife into his mouth.
In cross-examination Ms Wilson said she believed, but could not be sure, that Mr Willoughby used his right hand to shove the knife into his mouth. She conceded that she never mentioned to police that he had used his right hand. They did not ask her which hand he had used, she said.
Mr Willoughby shoved the knife into his mouth whilst he was just inside the front door. By this time she had moved outside and was standing on the verandah facing in. It was then that he rushed at her.
Ms Wilson said the first time she saw the knife was when he stabbed himself in the mouth. In cross-examination she said the blade went all the way in, then conceded that she could not see whether all of the blade went in but most of it did.
As mentioned, Mr Willoughby came rushing out towards Ms Wilson who was outside on the grass. He grabbed both of her arms and pulled them up and out, each fully extended at a 45 degree angle, just above her shoulders. He was trying to push Ms Wilson down onto the ground. Ms Wilson said Mr Willoughby was moving both her arms to one side, which he did more than once. The knife was still in his mouth. He was not saying anything and was not making any noise.
Ms Adams said she saw Mr Willoughby wrestling with Ms Wilson. Ms Wilson was trying to wrestle the knife off Mr Willoughby. They were wrestling for a few seconds. Ms Adams said she saw this as she was heading out towards the driveway and was following the children. Once in the street she flagged down a passing car and asked them to telephone the police.
Out of the corner of her eye Ms Wilson saw her neighbour, Loukas. She called out to him, “Loukas, Loukas, Loukas”. She said that Loukas, his wife and his daughter panicked and ran inside.
Ms Wilson said that her dog Buster came outside and starting attacking Mr Willoughby, biting his leg. Mr Willoughby fell to the ground. Ms Wilson then ran inside and locked the screen door behind her. Through the screen door she could see Mr Willoughby. In cross-examination she said he pulled the knife out of his mouth. She did not see him drop it on the ground. She could not recall seeing the knife after Mr Willoughby took it out of his mouth.
Mr Willoughby then went over to Buster and started wiping blood on the dog. He then got on his hands and knees and was growling at Buster. In cross-examination she said Mr Willoughby had blood on both of his hands. In fact when he grabbed her arms he left blood on her, but she could see no injury to him, including to his mouth.
Mr Willoughby then got up went to front door and stared through the screen door at Ms Wilson. Ms Wilson closed the internal door.
Ms Wilson said that she had a pet bowl with water in it near the front door. Ms Wilson said she thought Mr Willoughby picked up the bowl and poured it over himself because he was wet and the bowl no longer had any water in it.
Meanwhile Mr Edgar was in the same position as where she saw him when he went to ground.
Ms Wilson tried to let Buster inside by opening the screen door, but Mr Willoughby came towards the door so she closed the door and locked it.
Ms Wilson said while she was inside she called the police.
In cross-examination Ms Wilson said that the knife she eventually saw that day, being the knife that Mr Willoughby shoved into his mouth, was normally kept in the cupboard in the passage. Mr Edgar, she said, did not carry a knife and did not keep knives, although he had taken some from the house recently in preparing to move out.
She said that Mr Edgar and Mr Willoughby seemed to be getting along. She did not see Mr Edgar smoke cannabis that day and Ms Adams did not ask her not to give Mr Willoughby cannabis.
Ms Wilson explained that the cupboard in the passageway would not have obscured her view of Mr Willoughby and Mr Edgar because she was taller than it was and could see over it. She could see Mr Edgar’s back. She repeated that Mr Willoughby was taller than Mr Edgar. Mr Edgar was a thinner man than Mr Willoughby, she said.
In re-examination, Ms Wilson said that she had smoked cannabis on Sunday in the morning. She said that it did not affect her ability to appreciate events occurring around her.
Ms Wilson clarified that she did not have Mr Willoughby under constant observation between the time he took the knife out of his mouth and when the police arrived. Ms Wilson said that she could not look at him after what he had done to Mr Edgar. She said that the main door was closed during that period but that she never locked it.
I turn to consider the evidence of IW, SW and JW. None of the children were called to give oral evidence but recordings of interviews conducted with each by police officers on the Sunday of Mr Edgar’s death were admitted into evidence.[4]
[4] See R v Willoughby [2017] SASC 190.
IW was 9 years old at the time she was interviewed.
IW said that she lived with her Nan, Ms Wilson, her brother, JQW, and two sisters, SW and JW. She was not sure how YF was related to her, but said that he and his brother were at her house that day. When asked if she knew YF’s brother’s name, she said, “Uncle Woonun and, and he had a knife in his mouth.”
IW said that there was a stabbing. She said she was in the wardrobe room with her Nan who was getting changed when it happened. She heard a drawer and someone “grabbed the knife”. She heard screaming. YF was screaming at his mum. The screaming was coming from the passage.
After she heard the screaming, she went into the bedroom where her brother, sisters and YF were. She did not see anything when she went into the other room. She said she didn’t hear screaming while she was in the bedroom. She said that she left the bedroom about two minutes later because YF’s mum said. She ran around the corner, out of the house. She said YF’s brother was chasing her Nan. There was blood everywhere in the passage.
When she was in the house as she was leaving to go outside, she saw her Poppa, Mr Edgar. She said her Poppa grabbed the knife too:
Q.Can you tell me more about that, where, where was that.
A.In, no we come out of the kitchen
Q.Ok, and who else was near him at that time
A.Our Poppa
Q.Poppa
A.Mm
Q.And what’s
A.He grabbed the knife too.
Q.Did he
A.…put it in his mouth
Q.Ok what do you know what Poppa’s name is
A.No
Q.No, so he, when did he grab the knife
A.Oh I don’t know, I was when we came out the room, he had the knife in his hand
Q.Poppa did
A.Mm
Q.And now I don’t know, he is in the ambulance
IW said her Poppa was laying on the ground when YF’s brother came. She did not see what happened to him before then. She did not think he was hurt because he was laying on his tummy. YF’s brother, Mr Willoughby, was laying on top of him. She didn’t see what he was doing but he was still.
She said she ran down the street with YF’s mum and the other kids. She did not see where the knife was at that time. She confirmed it was after they were in the passage, and when they were out the front, that she saw Mr Willoughby with the knife in his mouth. She said she thought he was inside first and then he came out the front.
SW was 11 years old at the time she was interviewed.
SW did not see what happened at her house, but she heard. She was in the bedroom with IW, JW and JQW watching television. YF came in last. He was crying but they did not know what had happened. They pushed the couch to the door of the bedroom so that Uncle Woonun, Mr Willoughby, would not come in. It was after they pushed the couch in front of the door that they heard a few people scream. She said she heard her Aunty Patrice, Ms Adams, and YF scream. Uncle Woonun screamed too. She said YF, Aunty Patrice and Woonun went outside but Uncle Woonun grabbed a knife. Uncle Woonun, Aunty Patrice and YF came running back in. She said her Nan, Ms Wilson, was telling Mr Willoughby off.
Aunty Patrice said to run. She said they saw blood on the floor of the passage when they came out of the bedroom. She saw blood near the front door on the wall too. She said two people were down so she went straight outside. The two people were her Pop, Mr Edgar, and Woonun. She said her Pop was hugging, like touching Woonun. They were lying on the ground. She did not see what happened to them.
Then Woonun got up. SW said she started running away and her Nan distracted Woonun. He did not chase after her because he chased after Aunty Patrice.
She said that she left the house. IW, JQW and JW kept running down the street. They waited for the police to arrive. At no stage did SW see Mr Willoughby with a knife.
JW was 10 years old at the time she was interviewed.
JW said that for half of the morning on Sunday she was watching TV, laying on the bed. She said Woonun sat down in the lounge. She heard screaming. She said Mr Willoughby starting chasing his mum, Ms Adams, and there was yelling. She said they were yelling because “Woonan was sick and then he went crazy”. She said she shut the bedroom door. She felt scared and upset. They “locked up the door with heaps of stuff” but her sister and cousin were still “out there”.
JW said that she moved the stuff and her Aunty said to leave the house. She said she saw her two uncles, Mr Willoughby and Mr Edgar, laying on their knees in the house. She did not know if they were laying down. One or both of them were bleeding. She had to jump over them to get outside. She saw blood on the floor in the passage, but did not go through the whole house.
She said Woonun then got up. It was after Woonun got up that her Nan said to run. She did not see Mr Willoughby’s face “a lot” because he had his mouth open. He had the knife in his mouth. The handle was sticking out.
At the end of the interview, she added that she saw Woonun looking funny. She said that he went into the kitchen and grabbed a knife. She did not see him grab the knife but she saw him walk in there. She heard the drawer and “the spoons and that.”
Neither YF nor JQW were called to give evidence.
Defence counsel did not seek permission to cross-examine any of IW, SW or JW.[5]
[5] Evidence Act 1929 (SA), s 13BA(5).
D. The neighbour’s evidence
Loukas Hatzis, his wife Dimitra Hatzis, and their daughter Jennifer Tsimilkis, lived next door to Ms Wilson at the relevant time. All gave evidence.
On 29 November 2015 at around 1.30 pm Mr and Mrs Hatzis were in their front garden gardening. Ms Tsimilkis was in the bathroom which is at the back of the house.
They all heard screaming and fighting coming from next door. They all heard a female yelling “call the police, call the police”.
Mr Hatzis heard fighting next door and heard some doors slamming. Later in his evidence he said he heard only the one bang. After that he saw Ms Wilson come outside with the children and then “the young bloke come out.” Ms Wilson said “ring the police, ring the police”. Mr Hatzis said that the children were panicking and he could hear them screaming.
Mr Hatzis said that the young man came out of the front door a few seconds after the children. He had blood coming out of his mouth. He had a knife in his mouth. Mr Hatzis could see the handle. It was covered in blood.
The man then started fighting and pushing Ms Wilson in the front yard on the grass. Mr Hatzis said that Ms Wilson’s back was towards him. He could see that the man still had the knife in his mouth.
Mr Hatzis heard Ms Wilson telling the children to run. They ran onto the road. The police then arrived and stopped the man and put him down on the ground.
Mr Hatzis said that he had seen the man, Mr Willoughby, the day before, on the Saturday. The man came to Mr Hatzis’ house and asked him for a smoke. They sat down and had one cigarette together and talked. The man told Mr Hatzis said that that he was into music and that he was going to sort something out next door.
Mr Hatzis said he knew Mr Edgar. He had had trouble with him in the past. He said that there was fighting next door and screaming every day. Mr Edgar had never screamed at him, but he had banged on his fence and thrown rocks at his house which caused Mr Hatzis to call the police. Mr Edgar had never been physically violent to Mr Hatzis.
Mrs Hatzis said that on 29 November 2015 at around 1.40 pm she heard screaming from all of the children and from Ms Wilson. She did not see Ms Wilson but recognised the sound of her voice. Initially she thought they were playing as she was used to the kids yelling and screaming. She continued gardening.
Mrs Hatzis then heard a big bang like a door slam. She heard Ms Wilson screaming “call the police, call the police.” The children, Ms Wilson and another lady who she did not recognise, all ran into the front yard. Mrs Hatzis could not remember who ran out first. They all rushed into the front yard.
Mrs Hatzis ran and told her daughter to call the police. She saw a man with a knife or object in his mouth. He was covered in blood. She said she could see the handle and it looked like it was going straight in. He was in the front yard near the front fence and had come from the front door. Mrs Hatzis thought the children may have gone back inside as she could not see them. Ms Wilson was in the front yard on the phone. Mrs Hatzis did not see the man interact with Ms Wilson in the front yard.
Mrs Hatzis said the man was not himself. She said he was hysterical, crazy and was screaming. The knife was still in his mouth. Mrs Hatzis said she might have seen the male before she ran inside to ask her daughter to call the police, as she realised something was serious.

Mrs Hatzis saw two dogs in the front yard. She then went inside where she stayed.
In cross-examination Mrs Hatzis conceded that in the past she had called the police in relation to Mr Edgar’s behaviour. He had on more than one occasion been abusive, but had not seen him be physically violent.
Ms Tsimilkis said that on 29 November 2015 at about 1.35 pm she was in the bathroom getting ready to go out to lunch. The window was open, but she had music playing in her bedroom which she could hear in the bathroom. She heard screaming from next door. She heard two male voices screaming, one sounded like a child, like quite a young person. The older male was just screaming and not saying any words, and the second male was screaming “mum” over and over again.
Ms Tsimilkis turned her music off and went to talk to her mother at the front door. She heard a female voice screaming “call the police, call the police”. She asked her mother, “Did you hear that?” Then she heard a female voice call a second time, “Call the police”. Ms Tsimilkis did so. She made a decision not to go out the front as she did not want to see anything.
In cross-examination she told of there having been several incidents with Mr Edgar. On one occasion he had been banging on the fence violently which caused her to call the police.
E. The police attend
Sergeant Pope and Constables Penn, Perkins and Holden attended the Athol Park premises on Sunday 29 November 2015 in response to a tasking received at approximately 1.45 pm. Having been told that there was potential for violence, the officers first met nearby to discuss their approach. It was determined that officers Penn and Pope were to approach the front door and officers Holden and Perkins were to cover the other areas of the house.
Constables Henshaw and Fouraker joined the officers just mentioned at the Athol Park premises some time later.
When they arrived at the Athol Park premises Constable Penn approached the front door. Behind him was Sergeant Pope. Both officers said the screen door was closed. Neither could see if the main front door was open or closed. Both saw a man sitting with his back against the screen door of the house. His legs were out in front of him. He had blood on him and there was blood in the area around where he was sitting. Sergeant Pope could not see any wounds on the man whom they later learnt was Mr Willoughby. Constable Penn said he thought Mr Willoughby looked dazed and confused. Mr Willoughby did not respond to any of Constable Penn’s questions or commands. His arms were down by his side resting on his legs. Constable Penn observed a knife next to Mr Willoughby’s left leg, only centimetres away.
Sergeant Pope said that the man moved his head from side to side, but it did not appear to be in response to anything that was said.
Sergeant Pope did not see any weapons at that time.
Upon seeing the knife, Constable Penn alerted the other police. He put his foot on it and slid it backwards under the van (a Tarago parked on the front lawn).
Sergeant Pope and Constable Penn heard a female voice from behind the screen door which was closed. They both thought the main door was open as they could hear her clearly. She yelled for help and said that her husband had been stabbed. Constable Penn spoke to her and said “It’s the police, identify yourself.” She replied saying that her name was Tammy and that she needed help as her partner had been stabbed. Constable Penn asked if there was anyone else in the house, and she responded saying, “No, it’s just me”.
Constable Penn grabbed Mr Willoughby by the shoulders and, lifting him slightly off the ground, moved him away from the door leaving him to Constables Perkins and Henshaw to deal with. Mr Willoughby did not resist him as he did this.
Once the front door was clear, Sergeant Pope and Constable Penn entered the house. They saw Ms Wilson. She came outside and was dealt with by other officers.
Both officers immediately saw Mr Edgar. Constable Penn spoke to him and shook his shoulder, receiving no response. On Sergeant Pope’s instruction Constable Penn then moved throughout the house ensuring that it was clear. Meanwhile Sergeant Pope went to Mr Edgar. He was lying on the floor in the doorway to the lounge room.
After confirming there was no one else inside the house, Constable Penn returned to Mr Edgar. Sergeant Pope said that he moved the man to see if there were any signs of life. He and Constable Penn turned the deceased slightly up onto his back and observed his eyes open and glazed over. Constable Penn returned Mr Edgar to the position that he had been in before. There were no signs of life and the officers considered that any attempts at resuscitation were pointless. The ambulance service arrived shortly thereafter and confirmed that Mr Edgar was deceased.
Sergeant Pope said that he could not recall a dog being in the front part of the premises when he first arrived, but agreed it was possible.
Constable Perkins saw Mr Willoughby sitting on the porch. She watched as Constable Penn approached him and moved him to the side. A female came out of the house. Not long thereafter Mr Willoughby got up and stood off to the left of the door in the vicinity of the two black poles that feature in P2 photograph 3. Constable Perkins stayed with him whilst Sergeant Pope and Constable Penn went inside.
Constable Perkins led Mr Willoughby away from the house to a position on the grass where he laid down. She determined that he should lay down as he was stumbling and did not seem to be able to stand very well. She spoke to him, but he did not respond. Then with the assistance of Constable Henshaw she attempted to ascertain whether Mr Willoughby was injured. By this time the officers were aware that Mr Willoughby was said to have stabbed himself in the mouth.
Constables Henshaw and Perkins observed a lot of blood on Mr Willoughby’s clothing. They both observed a major laceration to his right palm that was very deep; Constable Henshaw could see the bones and tendons of the hand. Constable Perkins said she could see daylight through the hand. The officers wrapped Mr Willoughby’s hand in his shirt which Constable Henshaw ripped off him.
Constable Perkins tried to look into Mr Willoughby’s mouth but he would not open it when requested to do so by either her or Constable Henshaw.
In cross-examination Constable Perkins made plain that whilst Mr Willoughby did not respond to anything she said, he did not resist police in any way.
Constable Henshaw said that when he first reached Mr Willoughby as he was lying on the grass with Constable Perkins he was writhing around, not trying to get up, but rolling from side to side, gurgling but not saying anything. He too indicated that Mr Willoughby was not resistant to any police action.
An ambulance arrived. Mr Edgar was already dead. No treatment was administered or resuscitation attempted. The ambulance crew attended to Mr Willoughby.
F. Mr Willoughby’s injuries
In November 2015, Dr Jennifer Roy, a senior plastic surgeon, was based at the Royal Adelaide Hospital. She examined and performed surgery upon Mr Willoughby on 29 November 2015.
Dr Roy said Mr Willoughby was admitted through the emergency department at the Royal Adelaide Hospital where she first saw him. She examined Mr Willoughby. She noticed lacerations to both his right and left hand. He had a significant amount of blood coming from his right hand that the emergency department doctors were trying to stem. Dr Roy noted that he had two lacerations to his right palm. He had an arterial injury and had likely suffered structural damage evident from his loss of flexion of the fingers consistent particularly with one of the tendons being cut. Mr Willoughby was taken immediately to the operating theatre. Whilst Dr Roy was responsible for operating on his right hand, Dr Cleland, an ear, nose and throat surgeon, attended to injuries Mr Willoughby had sustained to his mouth.
Dr Roy also observed a small laceration to the tip of Mr Willoughby’s ring finger on his left hand. It was a superficial injury that required stitches.
X-rays of Mr Willoughby’s right hand showed no injury to the bones of the hand.
Dr Roy took the Court through the structural damage to the tissue, blood vessels, nerves and tendons of Mr Willoughby’s right hand that were the product of the two lacerations and the consequences for the use of the hand immediately upon sustaining those injuries and after. Both lacerations penetrated the palm to the layer of the intrinsic muscles just before the bone.
The laceration closest to the wrist was deeper on the thumb side. Both tendons to the index finger were cut, whilst one tendon to the middle finger was cut.
The laceration closest to the fingers cut the two tendons to the ring finger and the two tendons that go to the little finger. There was some muscle damage to the thumb.
Dr Roy was of the opinion that, assuming the lacerations were caused by a knife, such knife was run across the palm only twice, once in relation to each laceration. Nothing about the lacerations indicated in which direction the knife had run across the palm. In cross-examination Dr Roy confirmed that the fact that the lacerations were deeper at one end provided no indication as to the direction in which the implement causing the laceration had travelled.
Having regard to the damage to the tendons caused by the laceration closest to the wrist, Dr Roy explained the likely position Mr Willoughby’s fingers would have been in when the tendons of the hand were cut. She said the fingers were in a slightly flexed position. More specifically the index and middle fingers would have been slightly flexed, and the ring and little finger were less likely to have been bent. The fingers would have been less flexed at the time the laceration closest to the fingers was made.
Dr Roy explained what impact the lacerations to the right palm would have had on the function of the hand. She said that Mr Willoughby would not have been able to flex his index finger at all, he may have had partial flexion of middle finger, he may have had a small amount of flexion of the ring finger but it would be weak, and the little finger would have been weaker but able to be flexed. The practical effect was that Mr Willoughby could not have made a fist and would not have had his usual grip. Further, resultant nerve damage would have meant that Mr Willoughby would have lost sensation in the majority of his fingers. She could not say whether he would have been able to hold a knife.
Dr Roy said that she had seen similar hand injuries to that sustained by Mr Willoughby. Such injuries, if constituted of one wound, could occur by falling into a plate glass window, catching the hand on the top of a metal fence, or when the hand runs down the blade of a knife upon the knife being plunged onto a desk or a chopping board. She added that she had never seen a laceration of the depth or severity such as that sustained by Mr Willoughby that was self-inflicted.
In cross-examination Dr Roy said the lacerations to the right palm might be similar to defence wounds because there were “two wounds there”.
Referring to medical records Dr Roy told the Court that Mr Willoughby presented with three large gaping lacerations to the back of his throat (the posterior pharynx wall at the level of the oropharynx) and a linear laceration to the tongue that was four centimetres in length. The tongue laceration was considered superficial. These were treated by Dr Cleland.
G. The Post mortem
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
The following facts were agreed:
1.On 29 November 2015 at 5.10 pm the following forensic swabs suitable for DNA testing were taken from the witness Tammy Wilson:
a.     Right forearm (16/A27021-4)
b.     Left rear forearm (16/A21021-5)
On the same date at approximately the same time, photographs were taken of the witness Tammy Wilson. Those photographs are now exhibit P22. Photo 7 shows the location from which the right forearm swab was taken and photo 8 shows the location from which the right forearm swab was taken and photo 8 shows the location from which the left rear forearm swab was taken.
2.On 30 November 2015 at 12.40 am the following forensic swabs suitable for DNA analysis were taken from Woonun Willoughby while he was in the operating theatre at the Royal Adelaide Hospital:
a.     Wet swab from the left hand, palm and fingers
b.     Dry swab from the left hand, palm and fingers
c.     Wet swab from the fingernails of the left hand
d.     Dry swab from the fingernails of the left hand
All four swabs were delivered to the Forensic Science Centre. The swabs were securely and appropriately stored between being taken and being analysed at the Forensic Science Centre.
On the same date at approximately the same time photographs were taken of Woonun Willoughby. These are now exhibit P9.
3.On 9 December 2015 at 11.40 am photographs were taken of Woonun Willoughby. Those photographs are now exhibit P21.
4.Odon Ponciano Edgar was pronounced dead at the scene by SA Ambulance Officer Amber Cooper. Prior to her pronouncing him dead, no treatment was administered or resuscitation attempted.
5.The post mortem examination conducted by Dr Neil Langlois was conducted on the body of Odon Ponciano Edgar, date of birth 30.3.1970.
6.The check shirt examined by Dr Andrew Donnelly was seized by crime scene officer Adam Gates. It was securely and appropriately stored between seizure and examination.
7.The two pieces of fabric examined by Dr Andrew Donnelly were seized by crime scene officer Adam Gates. They were securely and appropriately stored between seizure and examination.
8.Samples of DNA were taken from Woonun Willoughby, Odon Edgar and Tammy Wilson for the purposes of comparison with DNA profiles located on relevant exhibits. The samples were taken using appropriate care and skill and were stored appropriately prior to being analysed. The profiles assumed by the DNA scientist to have originated with Mr Willoughby, Mr Edgar and Ms Wilson did in fact originate with each of them.
9.The item descriptions recorded in the statement of Olivia Handt for items 16/A27021-4 and 16/A21021-5 are inaccurate. They should record the origin of the swabs as right forearm (Item 4) and left rear forearm (item 5) of Tammy Wilson.
10.The exhibit numbers are descriptions of their origin contained within the statement of Olivia Handt are otherwise accurate. Each item examined was securely and appropriately stored between seizure and examination.
11.The samples analysed by Timothy Scott (Exhibit numbers 16/A27021 – 6, 65 and 68) all originated with Woonun Willougby (sic) and were obtained in the following circumstances:
a.     Item 6 – Received from the Royal Adelaide Hospital. Time and date that blood taken is not known.
b.     Item 68 – Taken on admission to the Royal Adelaide Hospital.
c.     Item 65 – Taken on 9 December 2015 at 11.06 am.
12.The blood analysed by Timothy Scott (preserved peripheral) was taken during the post mortem examination of Odon Edgar.
13.Patrice Adams gave a statement to police at 3.30 pm on 29 November 2015. In that statement she did not mention that she saw a knife in Mr Willoughby’s hand when he was laying on the ground next to the deceased.
Patrice Adams gave a second statement to police on 2 December 2015. In that statement she did not mention seeing the knife in Mr Willoughby’s hand when he was laying on the ground next to the deceased.
The statement taken on 2 December 2015 concerned Mr Willoughby’s childhood, and the long term history of his unusual behaviour. Aside from mentioning a recording of Mr Willoughby taken by Patrice Adams on her mobile phone on the 29^th of November, the statement did not refer at all to the events of the 29^th of November 2015.
I.      Other Evidence

I have not summarised the evidence of the crime scene examiner, Brevet Sergeant Gates, nor that of the forensic scientists, Olivia Handt and Andrew Donnelly. I have had regard to that evidence, but as will be seen, it does not assist me greatly in determining whether the prosecution has discharged the burden of proving the objective elements of the charge beyond reasonable doubt. For the same reason I have not included in these reasons a summary of the evidence of the ambulance officers, Amber Cooper and Paul Pegoli,[6] who attended the Athol Park premises on 29 November 2015, arriving not long after 1.50 pm.
[6] Exhibits P12 and 13.
That said, I note that the observations Mr Pegoli made of Mr Willoughby’s behaviour after the police arrived are similar in all respects to those of the police officers whose evidence I have referred to above.
I also note Ms Cooper’s report of her conversation with Ms Wilson about what had happened. Ms Wilson is said to have suggested that the incidents of Sunday, 29 November 2015 were about Mr Willoughby getting off drugs and pulling his weight around the house. Ms Cooper reports that Ms Wilson said that she opened the door of the room she was in and saw Mr Willoughby with a knife which he used to stab Mr Edgar. No submission was made as to the use I may make of Ms Cooper’s report of Ms Wilson’s out of court statements. I indicate I have not relied upon them.
Submissions
The prosecutor commenced her submissions by identifying the objective elements of the offence of murder. She submitted that the objective elements for manslaughter were identical.
The prosecutor then structured her submissions to address six broad questions: first, was Ms Wilson truthful and accurate. Second, what could be gleaned from the other witnesses who heard but did not see the relevant events? Third, what did the evidence suggest as to who was the likely aggressor? Four, what inferences could be drawn from the number and pattern of injuries? Five, did the accused indeed have defensive wounds? And six, where was the knife in the immediate aftermath of the events?
With respect to the first question, the prosecutor rightly observed that Ms Wilson was the only eye witness to the critical events. Ms Wilson said she saw two men, Mr Edgar and Mr Willoughby, standing in the location where the events must have unfolded and saw them go to ground. The prosecutor submitted that Ms Wilson’s evidence was the starting point in considering the question of whether it was the act of the accused that caused Mr Edgar’s death. She referred the Court to the transcript where Ms Wilson said that she opened the door to the wardrobe room after hearing some bumping and a series of noises. She then referred the Court to the vantage point that Ms Wilson had in viewing the events. The prosecutor cautioned against determining the line of sight open to Ms Wilson from a consideration of the mud map (Exhibit P3). It was from the photographs (Exhibit P2) that one could glean a more realistic appreciation of space and line of sight. In particular the Court was referred to photographs 4 and 15. Looking at these photographs, it was contended, a person standing in the doorway of the wardrobe room would have had a clear line of sight to the area where ultimately Mr Edgar and Mr Willoughby went to ground.
The prosecutor reminded the Court of Ms Wilson’s evidence of what she saw from her vantage point, in particular her description of the overhead action of Mr Willoughby’s arm - raised at 90 degrees, moving downwards to the top of Mr Edgar’s chest – which she thought occurred four or five times, although she qualified that because the events unfolded very quickly. She reminded the Court of Ms Wilson’s evidence that she thought the accused’s hand was making contact with the upper part of Mr Edgar’s chest and that she heard a thump.
Importantly Ms Wilson saw both men fall to ground, but did not describe any grappling, fighting or wrestling. All she described was the accused’s arm up clear of any impediment moving freely down towards the deceased’s upper chest.
The prosecutor contended that Ms Wilson was a straightforward witness who had no particular axe to grind. She expressed a not unexpected degree of grief and anger about what had happened to Mr Edgar but that did not appear to affect her evidence. She was candid about her cannabis use and that she and Mr Edgar had consumed and shared cannabis with Mr Willoughby.
The prosecutor reminded the Court that the alternative scenario put by defence counsel to Dr Langlois, and purportedly consistent with either an accident or manslaughter, that of grappling and accidently falling on the knife, was not put to Ms Wilson.
The prosecutor then turned her attention to the second of her six questions. She submitted that Ms Wilson’s evidence sat consistent with the various observations of sounds that were heard by other witnesses in the house. She pointed to the consistency between Ms Adams’ evidence and Ms Wilson’s evidence where Ms Wilson said that while she was in the shower she heard screaming and that she thought that one voice was Ms Adams’ and the other was YF. She contended that in those moments prior to the fatal event the evidence shows that the accused’s behaviour was escalating and becoming more aggressive towards his mother. She referred to Ms Adams’ evidence as to the escalation of Mr Willoughby’s unusual conduct as he spoke to his father and stood in the back yard staring and screaming at the sky. She referred to his having chased both Ms Adams and YF inside and into the lounge room and having pushed Ms Adams hard enough to force her back into the chair. It was then that YF said, “Don’t do that to Mum” and Ms Adams and YF got up from where they were and ran screaming. She noted Ms Adams evidence that the last time she saw the accused he was heading out of the lounge room to the kitchen.
The prosecutor then referred to the evidence of Jennifer Tsimilkis, IW, SW and JW. That evidence, she contended, was entirely consistent with that of Ms Adams and Ms Wilson. Remarkably, the prosecutor contended, no one heard aggressive words, abusive words or screaming from Mr Edgar. The only thing that anyone heard Mr Edgar utter at the critical time was Ms Adams who said in evidence that was unchallenged, that Mr Edgar had said, “No Woonun, no, don’t”.
The prosecutor submitted that the lack of noise or response from Mr Edgar suggested that the events unfolded very, very quickly and that he was taken by surprise and disabled equally quickly.
In dealing with question three, who was the aggressor, the prosecutor referred to evidence about Mr Edgar’s disposition. Even if he had issues with his neighbours in the past, there was no evidence from any of the witnesses inside the house about aggressive behaviour on his part. The prosecutor conceded that Mr Edgar had asked Ms Wilson to tell Mr Willoughby to leave, but she submitted that if he was in a violent or aggressive state of mind, and was itching for a fight, one might wonder why he did not give the bad news himself and instead went into the bedroom with the children to watch a movie. She repeated that there was no evidence of Mr Edgar saying, yelling or screaming anything other than the remark that Ms Adams heard immediately preceding him being stabbed. The prosecutor reminded the Court of Ms Adams’ evidence that Mr Willoughby had become angrier, more delusional and very paranoid. His behaviour had escalated to the point where she called her uncle and was contemplating calling the police. As his mother, it was said, she would have known Mr Willoughby best.
The prosecutor pointed to the escalation in Mr Willoughby’s unusual behaviour and abnormal state of mind, particularly his self-inflicted injuries to his throat and tongue, immediately after the event as indicative of it being more probable that he was the aggressor.
As to question four, the prosecutor addressed the alternative scenario of the slashes to Mr Edgar’s face being caused in the course of a struggle. The prosecutor contended that the idea of two people grappling with a knife, each of them trying to wrestle for control, was not something about which there was evidence. She contended that if two people were grappling with a knife and one’s strength proved too much for the other such that the knife moved in the direction that that person wanted it to move, and doing so stabbed the other, then the act of stabbing was the act of the stronger of the two people. That was sufficient for the stronger of the two people to have committed the objective elements of murder.
The prosecutor moved to question five: whether or not the accused had defensive wounds. She pointed to the evidence of Dr Roy and Dr Langlois that there were features of Mr Willoughby’s injuries that raised the possibility that Mr Willoughby had defensive wounds. However the prosecutor pointed to the evidence of Mr Willoughby’s state of mind and the strong inclination he had at the time of the events, and very soon after, to self-harm. She alluded to the possibility that Mr Willoughby may have self-harmed whilst he was not under the surveillance of Ms Wilson and prior to the police arriving. In this regard she referred to the fact that Ms Wilson’s unchallenged evidence was that she observed the accused gripping the knife with his right hand when he stabbed it into his throat. The grip suggests that, at that point in time, his hand was not compromised by the wound that Dr Roy treated. Further, his ability to hold her arm suggests that his hand was not compromised. The prosecutor referred the Court to photographs 60 to 64 of the blood droplets on the concrete around the corner of the house and toward the front right hand wheel of the Tarago parked on the front lawn as supportive of the injury to Mr Willoughby’s hand occurring after Mr Edgar was stabbed.
The prosecutor referred to the DNA analysis and the high likelihood that blood on Ms Wilson’s forearms had come from Mr Edgar and Mr Willoughby. She contended that it did not mean that at that point in time when Mr Willoughby grabbed Ms Wilson’s arms on the front grass he had already sustained the injury to the right palm and to the left hand. Clearly Mr Edgar’s blood had been transferred as a consequence of the events that had occurred inside. As for the source of Mr Willoughby’s blood, it is to be remembered that by this time he had stabbed the knife into his mouth and was visibly bleeding. In this regard the prosecutor referred to Mr Hatzis’ evidence that Mr Willoughby had blood coming out of his mouth. She repeated that Mr Willoughby’s ability to grab the arms of Ms Wilson and exert force in addition to removing the knife suggested that he had not sustained the injury to his right hand at that time.
As to question six, the prosecutor reminded the Court of Ms Adams’ observation of the knife being in Mr Willoughby’s hand as she passed him making her way to the front door and in his hand as he got up. In this regard the prosecutor submitted that the fact that Ms Adams did not mention in her first police statement having seen the knife in Mr Willoughby’s hand provided no reason to doubt the veracity of her evidence. Ms Adams’ first statement was given on the day of the events and presumably did not give the police the detail that with time to reflect she might have. There is no reason to consider that her evidence was made up. In her second statement, mere historical matters are recounted. The relevant events were not dealt with. Hence there is no reason to expect that she would have mentioned the knife in that statement.
The prosecutor finished by submitting that it was impossible to ascertain any motive. However, there can be no doubt, the prosecutor contended, that the wound to the neck was the cause of death and equally no doubt that Mr Willoughby had caused that wound.
Defence counsel commenced his submissions by attacking Ms Wilson’s evidence as lacking in important respects. In particular, she could not say who first introduced the knife into the altercation between Mr Edgar and Mr Willoughby. He contended that there was no evidence as to who was the first to grab hold of the knife. He argued that Ms Wilson’s evidence could not exclude a struggle during which there was a non-deliberate act, an act not directed by Mr Willoughby, that caused the injuries. In this regard he pointed out that Ms Wilson exited the wardrobe room after the struggle had commenced. He conceded the struggle was obviously short and forceful, but argued that what Ms Wilson saw was the tail end. He also submitted that Ms Wilson’s evidence was inadequate in that she did not nominate who was holding the knife during that portion of the struggle she saw. He submitted that though she described Mr Willoughby executing a stabbing motion that did not mean that he held the knife or indeed had stabbed Mr Edgar.
Defence counsel submitted that he did not disagree with the prosecutor’s distillation of the objective elements of the offence of murder. He submitted, however, that as this is a trial of the objective elements, evidence of the accused’s subjective state of mind is a subjective element and so is irrelevant and inadmissible. It is not something that the Court can take into account in determining whether it is satisfied that the prosecution have proven the objective elements beyond reasonable doubt.
Defence counsel submitted that the Court must be satisfied that Mr Willoughby had control of the knife at the time it caused the fatal wound. He repeated that there was no evidence from Ms Wilson as to Mr Willoughby holding the knife at the time she saw him strike the chest of Mr Edgar and heard the noise consistent with such strike. She never mentioned seeing the knife. He conceded that she described seeing a stabbing motion and that she used the word “stabbing” herself in describing what she had seen, but pressed the fact that she made no mention of the knife. He submitted that it was not open to the Court to conclude that because she had used the word stabbing she meant that he held a knife in his hand. Defence counsel submitted that this follows because the first time Ms Wilson saw the knife was when Mr Willoughby stabbed himself in the mouth. It was said that the only clear evidence of control over the knife is after Mr Edgar had died.
Defence counsel contended that Ms Wilson’s evidence of seeing four or five stabbing motions was inconsistent with the evidence of Dr Langlois as to the number of wounds he saw to Mr Edgar’s head and neck.
Defence counsel contended that the injury to Mr Edgar’s right hand is consistent with a defensive wound and went so far as to say there is no other explanation for that injury. He countered the argument of the prosecutor that the injury to the hand must have been caused after Mr Willoughby grappled with Ms Wilson out the front of the house by pointing to the fact that Ms Wilson had said that he pulled the knife out of his mouth and dropped it on the ground. That tended to suggest, he said, that the use of the knife subsequently and before the police arrived to self-harm was unlikely.
As to Ms Adams’ evidence of hearing Mr Edgar say, “No Woonun, no, don’t”, defence counsel contended that no one could say what Mr Edgar was referring to. He might have been referring to Mr Willoughby’s dealings with his mother or brother. He referred to Ms Adams’ failure to mention in her police statements any reference to seeing the knife in Mr Willoughby’s hands when she came out of the bathroom as reason to doubt her reliability.
He referred to the evidence of Mr Willoughby’s non-violent history in support of a submission, in effect, that he was not the aggressor and that he had sustained defence wounds. He referred to Dr Roy’s evidence in this regard and to the effect that the doctor had never seen a laceration of a depth such as that sustained by Mr Willoughby to his right hand that had been self-inflicted.
Defence counsel submitted that if it was possible that the injury to the hands of Mr Willoughby were defence wounds then the situation arises that at some stage Mr Edgar had control of the knife. If that was the case then it followed that there was a reasonable possibility consistent with innocence. That possibility was not one of self-defence. He argued that if the knife was in the control of the deceased and Mr Willoughby was trying to prevent injury to himself by pushing the deceased away, by pushing the knife away, and they tripped, and then fell in the confined space in the lounge room, the injuries could have been the consequence of the fall and trip. In short the submission was that the prosecution had not excluded the possibility that Mr Edgar was in control of the knife and that the injuries he sustained occurred without any physical act on the part of Mr Willoughby.
Initially defence counsel retreated from the suggestion that he was attempting to run a self-defence case. Subsequently, after making submissions on the possibility of an accident, he said he was putting both self-defence and accident as hypotheses consistent with innocence. In the latter regard he pointed to the unpredictability of people under the influence of methylamphetamine and the evidence to the effect that Mr Edgar had recently taken methylamphetamine.
In support of his accident hypothesis defence counsel pointed to the evidence of Brevet Sergeant Gates to the effect that there were gouges in the plaster in the vicinity of where Mr Edgar was stabbed. Those gouges suggest that, or are not inconsistent with, the two men grappling with the knife such that it is a reasonable possibility that Mr Edgar was in control of the knife which could have twice made contact with the wall.
Defence counsel then raised the possibility that the scuffle between Mr Willoughby and Mr Edgar had commenced at a point in the corridor a short distance from where Mr Edgar and Mr Willoughby went to ground. The submission was to the effect that the scuffle being possibly of longer duration meant that there was an increased possibility of Mr Edgar having first had control of the knife.
Defence counsel sought to draw some comfort from the interview conducted with IW where she said that Poppa, meaning Mr Edgar, grabbed the knife too. Defence counsel then contended that the DNA evidence on the knife did not indicate who first introduced the knife into the scuffle.
Defence counsel submitted that it was open to the Court to find that the objective elements of murder had not been made out but that they had for the offence of manslaughter. He submitted:[7]
… but if your Honour found that Mr Willoughby initially grabbed hold of the knife but, for example, or Mr Edgar removed the knife, and that might be how the serious right hand injuries occurred and Edgar remained in control of the knife and a subsequent struggle, your Honour might find as a result of an unlawful and dangerous act, it’s a question of manslaughter. If your Honour doesn’t find the objective elements are proven beyond reasonable doubt, your Honour must acquit under the legislation.
[7] T287.
In the light of that submission defence counsel was invited to make submissions on the difference between the objective elements of manslaughter and murder. That was not the first time the defence counsel was invited to consider that question. No answer was ever forthcoming.
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.
I appreciate that Ms Wilson said it was Mr Edgar who suggested that she ask Mr Willoughby to leave, but there is nothing to indicate that that request was borne of any ill will that might elevate to an act of aggression involving the production of a knife. If anything Mr Edgar’s request is in keeping with the evidence of the deterioration in Mr Willoughby’s state of mind and behaviour and the unsettling effect it had on those in the Athol Park premises. I agree with the prosecutor when she submitted that if Mr Edgar was spoiling for a fight and was a violent man, why did he not tell Mr Willoughby to leave the house himself, rather than head off to watch a video with the children in one of the bedrooms.
Mr Willoughby’s behaviour after Mr Edgar was stabbed is also relevant here. It reinforces the evidence of his deterioration in mental state and behaviour prior to Ms Adams’ seeking refuge in the bathroom. It provides some indication of the degree of his disturbance. In a sense it may be seen as performing the function of a motive in that, where a motive provides an understandable reason for a person to act, here Mr Willoughby’s mental state and bizarre behaviour provides such reason where otherwise no obvious reason or motive exists.
Ms Adams’ evidence of the events of the Sunday morning preceding her taking refuge in the bathroom was not challenged. I could detect nothing in what she said or the manner in which she gave her evidence to provide reason to reject her evidence as being either untruthful or unreliable. I accept her evidence, particularly that regarding the events immediately preceding her running into the bathroom. That is, I accept her evidence of Mr Willoughby becoming aggressive toward her and her younger son, YF, of his yelling at her and pushing her back in the chair, of YF’s response and of her then screaming to YF to run. I do not doubt that those events and her screaming precipitated her fleeing to the bathroom and YF to the bedroom in which Mr Edgar and the other children were present. It is possible that the door slamming that Mr Hatzis heard was the bathroom door shut behind Ms Adams. Equally that could have been the noise Ms Wilson heard.
Consistent with Ms Adams’ evidence each of Ms Wilson, SW, JW and IW heard screaming. Each of SW, JW and IW confirm that YF entered the bedroom in which the children were watching television shortly thereafter.
Ms Adams was not challenged on her evidence that as she made her way to the bathroom Mr Willoughby headed toward the kitchen. He headed then in a direction and to a location where one might expect to find a knife. I accept that Ms Wilson said that she kept her cutlery in the sideboard or cupboard in the passage (Exhibit P2, photographs 29 – 31) but it is possible that a used knife or a recently washed up knife was in the kitchen (see Exhibit P2, photographs 9 and 10).
JW said Mr Willoughby went into the kitchen and got a knife. Subsequently she said that she saw him “walk in there” (the kitchen) but did not see him get a knife from the kitchen, although she said she did hear a drawer.
I do not rely upon JW’s evidence in this respect. Wherever the knife used on Mr Edgar came from, it had been retrieved prior to JW emerging from the bedroom she shared with JQW and her sisters.
It is possible that Mr Willoughby did not venture far into the kitchen after Ms Adams last saw him before returning to the passage to get a knife from the cupboard drawer. Here I bear in mind that IW said she heard a drawer.
It is likely that Ms Adams’ screaming and running from the lounge room and YF’s running into the bedroom in which Mr Edgar and the other children were watching television, caused Mr Edgar to emerge.
Ms Adams was not challenged on her evidence that not long after she entered the bathroom she heard Mr Edgar say, “No, Woonun, no don’t”. I have scrutinised Ms Adams’ evidence carefully. I find no reason to reject her evidence of having heard Mr Edgar say this. I accept that she did hear him say it. Doing so renders it more probable that Mr Willoughby was the aggressor. It suggests that Mr Willoughby was about to do something that Mr Edgar did not want to occur and was concerned to prevent.
I agree with and adopt the prosecutor’s assessment of Ms Wilson as a witness. I consider she was a witness of truth.
I have looked closely at P2 photographs 8, 15, 29. I accept Ms Wilson’s evidence that the sideboard, or cupboard as she called it, in the passage did not obscure her view of Mr Willoughby and Mr Edgar when she came out of the wardrobe room. I accept her evidence that when she emerged she could see Mr Edgar’s back. That is consistent with the direction in which he fell and came to final rest as depicted in P2 and the direction he was likely travelling after coming out of the bedroom in which the children were watching television. The location of the body, associated pooled blood and spatter are also consistent with the altercation witnessed by Ms Wilson taking place exactly where she said it did. The location of the body, associated pooled blood and spatter also suggest that Mr Edgar was so quickly disabled that he had little or no chance to move from the position where he sustained the wound that caused his death.
The height of the spatter on the wall suggests that the source of the blood that caused the spatter on the wall was positioned at a greater height consistent with Mr Edgar sustaining the injury that bled whilst standing as, indeed, Ms Wilson’s evidence suggests.
According to Dr Langlois, the injuries Mr Edgar sustained were consistent with a minimum of three blows. Ms Wilson said she saw Mr Willoughby strike Mr Edgar “I would see say (sic) four times, maybe four or five times”. It is to be noted that Ms Wilson was not categorical. Neither, in fact, was Dr Langlois. The possible difference between her recollection and the number of blows taken to cause the injuries sustained by Mr Edgar does not cause me to doubt her evidence. In fact, I consider that her description of a relatively few number of blows delivered in quick succession supportive of her reliability bearing in mind the evidence of the number of injuries, how quickly Mr Edgar must have succumbed and, generally, how quickly things must have unfolded. The direction of the incised wounds sustained to the left and right hand side of Mr Edgar’s head is also generally consistent with Ms Wilson’s observations of the stabbing action she said she saw.
It was suggested that the injuries sustained by Mr Edgar could have occurred in the course of a struggle. The following was put to Dr Langlois:[9]
Q.It is possible, isn’t it, for the two men – one man to be holding a knife of that size and another man to be holding the first man’s hands.
A.Yes.
Q.In your evidence you can’t distinguish and you answered a few questions about a blow or being struck. Can you exclude that in particular with the neck injury that that did not occur when two men were grappling over a knife and one man fell against for example the wall. The knife fell against the wall and the other man fell against the knife. You have got two men, one holding a knife, the other man holding the wrists or hands, confined space, the knife goes against the wall, the hand or the knife goes against the wall, could the knife have entered the neck of the deceased as part of that action.
A.Certainly, it is not possible to exclude that and it could be possible, however you have to bear in mind that the knife track is from left to right and downwards. So in order for that trajectory to occur in a struggle and a fall, that direction would have to enter the body and then continue in however the action is occurring. In a standing position falling against the wall, I would actually consider that quite difficult but I wouldn’t say it is completely impossible.
Q.You are assuming a standing position, people could be down on one knee, they could be on both knees as they struggle.
A.I certainly can see in a struggle situation one person could be bent over and if the deceased was significantly bent forwards, then falling against the wall could put that knife into that trajectory of heading across the body from left to right and also down from neck level towards the chest.
[9] T232.
The difficulty with the assumed scenarios put to Dr Langlois is that they bear no sufficient relation to the evidence. There is no evidence of Mr Willoughby and Mr Edgar struggling as both held the knife. There is no evidence of the two men or one of them being in a kneeling position of any description. There is no evidence of a body or bodies hitting the wall as they struggled. The scenarios stand in stark contrast to the evidence of Ms Wilson. She was not cross-examined to suggest that what she saw was incorrect and that, in fact, the injuries were sustained by Mr Edgar in a manner such as that put to Dr Langlois.
I appreciate that JW said she saw her two uncles on their knees. She said in her interview:
A.And yeah that was Woonun mum and her said get outside
Q.Ah
A.And we went.
Q.Huh, huh.
A.But when we were walking out we saw blood on the doorway at the front door.
Q.Huh, huh.
A.And then that why we had to jump of it (sic) and then when we got out the front um Woonun, the one that I don’t, the one that is the uncle …
Q.Huh, huh.
A.Had a knife in his mouth.
Q.In his mouth.
A.And I don’t know what happened to my uncle, my other uncle
Q.Your other uncle.
A.And then we runned away.
Q.And then you ran away.
A.And I don’t know the rest.
Q.Where did you see the blood.
A.At the front door.
Q.At the front door, ok, what else did you see when you were at the front door.
A.My two uncles laying down there.
Q.They were laying down there.
A.Like on their knees.
Q.On their
A.Knees.
Q.Knees and were they inside the house or were they outside of the house.
A.In the house
Later she said:
Q.Ok, and so did you, when you walked out of the house, did you have to walk past papa and uncle Woonun.
A.Yeah.
Q.Ok and that’s when
A.Yeah we had to jump over them to the um thing but then when I walked down I didn’t have any shoes on
Q.So you had to jump over them, over their
A.They were together
Q.They were together
A.Yeah
Q.Ah ok, how do you mean they were together.
A.Mn I don’t know, but they were on their knees together, I don’t know why.
Q.Were they laying down or were they
A.I don’t know
Q.Up on their knees
A.Up on their knees
Q.Up on their knees, ok and so then you had to climb over them
A.I jumped over them.
Q.You jumped over them did you, and then went outside and
A.Woonun got up
I am not prepared to act on the basis that JW actually saw her uncles on their knees. I do not know what position they were in that she was attempting to describe. All other witnesses see Mr Edgar and Mr Willoughby on the ground at the time they and the children run to the front door. I note that at the same time as she says her uncles were on their knees she also says they were laying there. My impression from watching the interview a number of times is that JW is not describing Mr Willoughby and Mr Edgar facing each other in a kneeling position that in anyway resembles what defence counsel put to Dr Langlois. I do not think she saw them on their knees, but was attempting to describe the way in which they were lying on the floor as she ran out of the room and jumped over the blood and them. It is not insignificant that she had to jump over the blood and her uncles. Taking her evidence literally, if her uncles were kneeling facing each other, gripped in a struggle, the jump would be quite high, particularly for a child. Further, having regard to the photographs, if she had to jump over the blood it is likely that the two men were on the floor and a pool had begun forming.
Defence counsel referred to the existence of chipped paintwork to the wall as referred to by Brevet Sergeant Gates (see P2, photographs 49-54) and the possibility that the wounds sustained by Mr Willoughby were defensive wounds as supportive of the scenarios put. The chip marks provide no foundation for the scenarios put. No one was asked whether they existed prior to the events of 29 November 2015. I observe that there are other similar chip marks in photographs of other rooms in the house (P2 photographs 6-10, 16, 20, 22, 27, 28 and 33). No evidence was called suggestive of the marks being caused by a knife. Brevet Sergeant Gates merely observed their location proximate to blood spatter on the wall from which he took swabs and that he located some “flakes” of plaster underneath the deceased.
Drs Langlois and Roy considered that the wounds to Mr Willoughby’s hands could be defensive wounds. The hypothesis suggested is that Mr Edgar had the knife for a period sufficient to cause the wounds to Mr Willoughby’s hands before Mr Willoughby took possession of the knife and then delivered the blows that Ms Wilson observed, or, alternately, there was a struggle between the two men in which Mr Willoughby grabbed the blade but also during which the blade just happened to strike Mr Edgar to the left and right hand sides of his head and enter his neck. A third scenario could be, as prompted by Dr Roy, that Mr Willoughby’s hand ran down the blade of the knife when he struck the wall in a vain attempt to stab Mr Edgar. I put the last scenario aside. There is no evidence of the knife hitting the wall. To postulate that it did is to speculate.
The only other possible source of support for the scenarios put by the defence counsel is the evidence of IW. I have studied closely IW’s record of interview. I am not satisfied that when she says, “He grabbed the knife too”, she is referring to Mr Edgar. I listened closely to the interview. Her answer is interrupted by the interviewer. The “He” who grabbed the knife, “put it in his mouth”. From the balance of her interview that was Mr Willoughby. Further she said she did not see what happened to Mr Edgar. He was lying on his tummy in the passage. Mr Willoughby was laying on top of him. At this time she could not see the knife. I do not think she should be taken as saying that her “poppa” had the knife.
I appreciate that when the interviewer returns to the topic and asks if Poppa had the knife she is met by the response, “Mm” and then “And now I don’t know, he’s in the ambulance.” I do not think IW’s “Mm” was necessarily assent to the proposition put. Significantly whatever IW sees is the aftermath of the event that resulted in Mr Edgar’s death after Ms Adams has told the children to leave. I prefer Ms Adams’ evidence as to who was in possession of the knife at this time. I agree with the prosecutor that the fact that Ms Adams made no mention of seeing the knife in Mr Willoughby’s hand when she emerged from the bathroom and made her way to the front door in either of her statements to police should not cause me to doubt her credibility or reliability. My impression was that Ms Adams reluctantly gave evidence for the prosecution but was most concerned to tell the truth. She did not seem to me to bear her son any ill-will. She did not embellish or exaggerate her evidence. She was measured and concerned. I accept her evidence. IW’s interview is largely what one would expect of a young child attempting to make sense of what she sees in a very short space of time in an alien environment soon after the event. I do not consider that she was untruthful, but I do not accept that she saw Mr Edgar with the knife.
The questions of the medical witnesses about the accused suffering defensive wounds were framed at a high level of abstraction divorced from any factual scenario. Their evidence in isolation does not assist in determining when or how Mr Willoughby did suffer the wounds to his right palm in particular.
I am satisfied for the reasons given above that Mr Willoughby was the aggressor. Mr Edgar’s utterance, “No, Woonun, no don’t”, is consistent not only with Mr Willoughby being the aggressor but with Mr Willoughby having possession of the knife and using it as Ms Wilson witnessed. Accepting this it is likely that Mr Willoughby’s injuries were caused at some other later point. That is to say, accepting Ms Wilson’s evidence of his arm coming down as she described, and inferring that she witnessed Mr Willoughby stabbing Mr Edgar (which is consistent with the presentation of Mr Edgar’s injuries, remembering that Mr Willoughby was the taller man) it is likely that at this time Mr Willoughby’s right hand was not compromised in the ability to hold the knife and stab it into Mr Edgar making the noise Ms Wilson described. Here Mr Willoughby’s willingness to self-harm immediately after he got up is also important, as is his state of mind and presentation as at the time of the attendance of the police officers. I appreciate that Dr Roy said that she had never in her experience seen wounds such as those to Mr Willoughby’s right hand that were self-inflicted, but that does not cause me to think that it was unlikely that that is what occurred in this case. I bear in mind that Mr Willoughby was prepared to stab himself in the mouth with the knife such that he sustained the three wounds to the back of his throat that required surgical attention. I also bear in mind the extent to which he was able to use his hands in the altercation with Ms Wilson outside, but, as I have said, more important is the fact that his right hand was not compromised when he struck Mr Edgar.

In short the injuries to Mr Willoughby’s hands do not cause me to think that Ms Wilson was mistaken in what she saw. Having considered all of the evidence I consider Ms Wilson a truthful and reliable witness such that I can be satisfied beyond reasonable doubt that what she witnessed was Mr Willoughby stabbing Mr Edgar and that one of the blows delivered caused the gaping wound to the left side of his neck that caused his death.
I am satisfied beyond reasonable doubt that Mr Willoughby did an act that caused Mr Edgar’s death.
Putting criminal negligence to one side (which did not form any part of the defence case and does not arise on the evidence), the objective elements of the offence of manslaughter by unlawful and dangerous act are, in my view, no different to murder (i.e. an act causing death).[10] Accordingly, it does not assist Mr Willoughby to contend that this is a case of manslaughter by unlawful and dangerous act and not murder.
[10] Question of Law Reserved (No 1 of 1997) (1997) 70 SASR 251 at 264 (Duggan J); As to the elements see Burns v TheQueen (2012) 246 CLR 334 at [7]-[9] (French CJ), [75] (Gummow, Hayne, Crennan, Kiefel and Bell JJ)
To the extent that the concept of an accident includes an act unaccompanied by the exercise of the will, it is to be noted that the definition of a subjective element includes voluntariness. Thus, if an act causing death is proven to have occurred it will not matter that such act was not accompanied by an exercise of the will; the objective elements of the offence of murder remain established. No doubt this is in order that the non-insane automaton be brought within the ambit of Part 8A of the CLCA.
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.