Regina v A S Moffatt [No 3]

[1999] NSWSC 233

CITATION:	Regina v A S Moffatt [No 3] [1999] NSWSC 233
CURRENT JURISDICTION:	Criminal Division
FILE NUMBER(S):	070092/96
HEARING DATE(S):	03/03/99, 04/03/99, 05/03/99, 08/03/99, 15/03/99, 18/03/99
JUDGMENT DATE:	26 March 1999
PARTIES :	Regina Anthony Stuart Moffatt
JUDGMENT OF:	Kirby J

COUNSEL :	P K Lynch (Crown) A M Martin (Accused)
SOLICITORS:	Crown Solicitor (Crown) Joan Baptie, Solicitors (Accused)
CATCHWORDS:	Criminal Law; Practice & Procedure; Murder; Intoxication; Provocation; Diminished responsibility
ACTS CITED:	Crimes Act 1900
CASES CITED:	Puckeridge v The Queen (CCA, unreported, 3 November 1998) Royall v The Queen (1990) 172 CLR 378 Stingel v The Queen (1990) 171 CLR 312 Green v The Queen (1996-97) 191 CLR 334
DECISION:	See para 121

THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

KIRBY J

Friday 26 March 1999

070092/96 - REGINA v Anthony Stuart MOFFATT [No 3]

JUDGMENT

HIS HONOUR :

Background
1 The accused, Anthony Stuart Moffatt, has been charged with having murdered Richard James Fyfe on or about the 26th April 1996. He has also been charged, in the alternative, with a number of other offences of lesser gravity. The matter proceeded before me, as a Judge sitting alone.
2 On 26 April 1996, at 12.38 am, the New South Wales Ambulance Service was called to premises, flat 41, 59 Gerrale Street, Cronulla. It responded at once. At 12.45 am two ambulance officers entered those premises. The police were already there. A male person, later identified as Richard James Fyfe, was seated on the floor, slumped forward. He was examined, and found to be dead.
3 The case against Mr Moffatt substantially rests upon admissions said to have been made by him to neighbours, police and in a recorded interview. The accused was, at the time of these events, an alcoholic. The deceased was also an alcoholic. There were two other persons present in the flat They too were alcoholics. The accused did not give evidence before me. Issues have been raised, however, through cross examination, as to whether the accounts he gave at various stages that evening were fantasy, or confabulation.
Anzac Day 1996
4 Mr Moffatt shared a flat (41/59 Gerrale Street, Cronulla) with Mr Ronald Godfrey. He was 36. Mr Godfrey was considerably older. The 25th April 1996 was, of course, Anzac Day. Mr Moffatt told Dr Wong that he and Mr Godfrey watched the dawn service on television. They drank as they did so. A resident of a neighbouring flat (number 39), Ms Kelly Findlay, recalled seeing the accused and Mr Godfrey on the back verandah. She put the time at between 8.00am and 8.30 am (T 93). She believed that the accused was already drunk.
5 The accused was in the habit of drinking a mixture of methylated spirits, and water. Indeed, such was his consumption, that he made up the mixture in plastic cordial bottles. He then drank from the bottle. He was seen to do so by neighbours. Photographs taken of the flat shortly after Mr Fyfe’s death reveal the presence of cordial bottles. Methylated spirits bottles were seen by neighbours throughout the flat, often near the front door (T 92). Methylated spirits is, of course, an especially potent form of alcohol. Dr Perl said this: (T 111/112)
“So these days, probably somewhere around 90 percent ethanol in a bottle of methylated spirits.”
6 At some point during the day (variously described as mid morning or mid afternoon) a friend of Mr Godfrey, Mr William Williams, came to the flat. Mr Williams had a 5 litre cask of wine (Ex N(1) Q 65; T 70). The drinking continued. It was Mr Moffatt’s recollection, when interviewed by police, that they watched a video.
The Arrival of the Deceased
7 The deceased arrived at the flat in the early evening. Mr Godfrey said it was still daylight (T 53). The accused put the time at between 7.30 pm and 9.00 pm, although he acknowledged that his estimate may be astray, since he was “not a clock watcher” (Q 75).
8 Mr Godfrey claimed not to have previously met the deceased. It is clear, however, that the deceased had been to the flat before. The neighbours recognised him. Indeed, they knew him by his name, Richard. The accused, when interviewed, told the police that he recalled having met Richard Fyfe once before (Q 71).
9 When the deceased arrived, he was already heavily under the influence of alcohol. Mr Moffatt, himself affected by alcohol, described the deceased as “about three-quarters pissed after he’d just left the pub” (Q 172). The deceased entered the flat. He joined in the drinking. Mr Godfrey said this: (T 53)
“A. … I will explain. The young fellow, he seemed to me to be a decent young bloke and he came in out of the blue because I had the door open and we had a couple of drinks together, the lot of us and he said to me, he said, he was smoking my cigarettes, he said I’ll go and get a packet of cigarettes and another cask to square up.
Q. Cask of wine?
A. Yes.
Q. Did he go and get another cask of wine?
A. Yes.”
10 The accused had the same recollection. He told Dr Wong the following: (Ex J, p 3)
“The deceased at first drank what they had got but later went to the pub and came back with some wine and smoke(s).”
Argument Between the Accused and the Deceased
11 The accused, when interviewed by police the following morning, described the progressive deterioration in his relations with the deceased. The deceased pestered him for a knife, which he had once owned but had given away. He gave the following answers when interviewed:
“Q77. So what happened next?
A. Well, he turned around and he started causing some hassles around the place, so I picked up the hammer.
Q78. When you say he was causing some hassles.
A. He was causing hassles around the place, he wanted to know where me knife was and I already got rid of that a long time ago.”
12 Mr Moffatt explained that, at their last meeting, he had shown the deceased the knife. His account continued:
“A. Yeah. And he wanted to know where me knife was, I said, ‘I got rid of it’. And he turned round, kept pushing, pushing and pushing.
Q82. OK.
A. And I turned around and picked up the hammer, so I ended up smashing the joint up a little bit, didn’t I? Just a little bit.
Q83. So you didn’t hit anyone at this time, you just …?
A. No, I didn’t hit anybody at that time, no, I was just smashing things. Smashing into chests and smashin’ up glasses, bustin’ mirrors. Just smashin’ the place up.
Q84. OK.
A. You know, because all he wanted to know was where my knife was.
Q85. All right.
A. And I turned round and told him, ‘I haven’t got me bloody knife here,’ I said, ‘I’m not gunna tell you this for the last time,’ and then he turned around and he called me a dog. So I grabbed him by the throat once, right, and then Billy and the old fella pulled me off, right. I grabbed him by the throat once and I said, ‘Don’t ever call me a dog again.’ …”
13 Mr Moffatt’s account is consistent with accounts he later gave to a number of doctors. On 16 September 1998, Mr Moffatt told Dr Wong the following: (Ex J, p 4)
“There was an argument when the deceased kept asking him about a knife which was given to him by a friend but which he had given away. The deceased called Mr Moffatt a dog.”
14 He added:
“He took a hammer and ‘smashed up the flat’ and broke Ron’s glassware.”
15 Mr Moffatt’s account to Dr Strum (Ex 2, p 9), was less expansive, though not inconsistent.
16 Mr Godfrey remembered the accused breaking glass ornaments, and a mirror his mother had given him (T 55). The photographs taken by the police show a broken mirror (Ex C, photo 3), and broken ornaments (Ex C, photo 13). The neighbours, Ms Keane and Ms Findlay, remember hearing “yelling and thumping” and the smashing of glass (Keane T 61-62; Findlay T 82). They fixed the time at about midnight, or shortly before.
17 Ms Findlay was sufficiently disturbed to investigate the noise. She walked along the corridor to the accused’s flat. The door was slightly open. She remembered hearing the words, “Get him Tony”. She retreated to her flat. There was silence for a further 10 to 15 minutes (T 85).
18 Mr Moffatt’s account to the police suggests that he was insulted by the deceased for a second time. He was called a “mutt” which, of course, is another word for a dog. When first describing what occurred, Mr Moffatt appears to have telescoped the two insults, so that they followed one upon another. The relevant part of his interview is as follows:
“A85. … I grabbed him by the throat once and I said, ‘Don’t ever call me a dog again.’ So I sat back down there and he turned around and he said, ‘You’re still a mutt.’ Bang, that was it. I hit him on this side of the, the left hand side with the hammer. I hit him in the middle of the chest with the hammer and I hit him on the right hand side with the hammer and then I grabbed him by the throat and I just did not let go.”
19 The police, in later questioning, sought to clarify the precise sequence. The interview is in these terms:
“Q130. How much later was the second time that you put your hands round his throat?
A. I don’t know, about three quarters of an hour, I’d say.”
20 The second attack, as I will shortly describe, culminated in the death of Mr Fyfe. Immediately after the attack, Mr Moffatt left his flat and approached his neighbours in flat 39. It is clear from the evidence of these neighbours that there was a short interval, perhaps 15 minutes, between the first incident (after the deceased had called Mr Moffatt a “dog”), and the second (after he had been called a “mutt”).
The Final Assault
21 Having been called a “mutt”, the accused attacked Mr Fyfe. It appears that there were two stages to the attack:
· First, the accused struck Mr Fyfe with a hammer.
· He then placed his hands around the throat of Mr Fyfe, and began strangling him.
22 Dealing with the first stage, the accused told police that he repeatedly struck the deceased on the chest with the flat part of a claw hammer (Q 90, Q 150). He gave the following answers to the police:
“A160. But I heard a lot of cracks.
Q161. All right.
A. ‘Cause I didn’t hit him soft.”
23 Mr Moffatt did not see blood, except his own blood on the handle of the hammer. A claw hammer (Ex E) was found at the premises. The police showed the hammer to Mr Moffatt in the course of the interview. Before it was produced, Mr Moffatt accurately described it. He said this:
“A145. I recognise the hammer, it’s got a black handle, with little serrated holes in it and, I’ll know the hammer, as soon as you show it to me …
Q146. I’ll just show you …
A. That’s the one.
Q. … a black handled hammer now, is that, is that the hammer that you’re talking about?
A. That’s the hammer I hit him with.
Q147. There’s just some hair and things on the claw part of the hammer, do you know …
A. Probably his, I’m not sure.”
24 The findings on post mortem were entirely consistent with this account. There was significant bruising across the chest of the deceased. However, Mr Fyfe had not bled externally. The blood on the hammer was, as Mr Moffatt surmised, his own. It was not that of the deceased (Ex L). Mr Byron Collins, pathologist, gave the following evidence: (T 208)
“Q. If that hammer was indeed the implement that caused the fractures of the deceased’s fifth and sixth ribs, the force that the hammer struck the ribs with to cause the fractures, would you expect that force to again have an audible crack as the ribs break?
A. Yes, it may well do. The rib is bone and could certainly crack.”
25 Having struck Mr Fyfe with the hammer, Mr Moffatt threw it away (Q 91). He placed his hands around the throat of Mr Fyfe, and proceeded to strangle him. He estimated that he had his hands around his throat for one and half to two minutes. The accused described what occurred in these words:
“A100. His tongue was goin’ blue while I was strangling him.
Q101. All right.
A. The only thing was he couldn’t push me away.
Q102. He couldn’t push you away? He …
A. No, no, when I’m coming in on top of somebody, I’m not easy, I’m not an easy thing to push away.
Q103. So he was trying to push you off him?
A. He was trying to, but it didn’t work.”
26 The process culminated in an audible crack from the deceased’s neck, and then apparent lifelessness. Mr Moffatt said this:
“Q92. OK. How long did you hold him around the throat for?
A. Wouldn’t have been any more than a minute and a half, two minutes. Then I … you know, where my hands were around him, my fingers were down there like that and my hands were around him, I just went, I just went crack and that was it, he was dead.”
27 In the same interview, the accused, having identified the hammer, said this:
“A168. And that’s the hammer I used. But I hit him with the flat. Flat on the left, flat in the middle and flat on the right side, then I put me hands around his throat and I just didn’t let go until he stopped breathing. Looks like I went a little bit overboard, didn’t I?”
28 Towards the end of the interview, the following was said:
“Q191. Tony, is there anything else that you want to tell me about what’s happened?
A. No, only the fact was, yeah, I hit him with the hammer and I choked him to death, that’s all.”
29 The accused also said this:
“Q183. Did he ever go to sleep?
A. No.
Q184. From the time you got there until, up until this happened?
A. No.
Q185. He never dozed off?
A. No, the only time he went (to) sleep was when I put him there permanent.”
30 After hearing the crack in the neck, the final moments were described by Mr Moffatt in these words:
“A92. … where my hands were around him, my fingers were down there like that and my hands were around him, I just went, I just went crack and that was it, he was dead.
Q93. How do you know …
A. Nothing much I could do after that.
Q94. How did you know he was dead?
A. His eyes rolled back in his head and his tongue turned blue. And he wasn’t breathing.
Q95. Was that …
A. Couldn’t feel no pulse in his neck.
Q96. Was that before you let go of him or afterwards that his eyes rolled back.
A. It was after I let go of him.
Q97. So you heard a crack and you let go of him?
A. Yep.
Q98. His eyes rolled back then?
A. Yep.
Q99. And his tongue started to go blue?
A. And his tongue went blue.”
31 Mr Moffatt added:
“Q104. Right. After you said you let go of him, did you check for his pulse, did you say?
A. Yeah, I did, on his neck.
Q105. And could you feel any?
A. Nuh. I even put a mirror, or a busted piece of glass to his face like that, but he wasn’t breathing.
Q106. Right.
A. So I knew he was dead. So I didn’t know what to do.”
32 There was, as mentioned, a broken mirror in the flat. The autopsy confirmed various aspects of Mr Moffatt’s account. First, there was extensive bruising, and some abrasions, to the neck. Secondly, there was an oblique fracture running through the left side of the thyroid cartilage. In respect of the latter, Dr Lawrence (who performed the autopsy) said this: (T 12)
“Q. If the accused in his account to police described hearing a crack as at the time that he had his hands around the neck of the deceased can you account for any observation that you made that might be consistent with the accused hearing a crack?
A. It is consistent with the fracture in the thyroid cartilage.”
33 Dr Byron Collins provided the following evidence, based upon the actions of the accused, as demonstrated in the recorded interview: (T 206/207)
“Q. I appreciate you haven’t had the opportunity to see it, but if you would assume that in the course of the police interview with Mr Moffatt, he demonstrated a motion that he applied to the neck of the deceased and he had his thumbs separated but on an angle, say a 45 degree angle (indicating)?
A. Yes.
Q. If force was applied to each side of the neck in that manner …
A. Yes.
Q. … and the force supplied by someone who was right-handed, that would place the thumb on the left side of the thyroid cartilage?
A. It may do.”
34 Dr Collins added: (T 207)
“Q. When an oblique fracture of the thyroid cartilage occurs does it produce a crack or an audible break?
A. It may do. It’s - the thyroid cartilage in this particular case appeared to me from - as it did to Dr Lawrence, from the microscopy to be largely cartilaginous, so that is gristle that you might see on the end of a chop bone or that sort of an area, but there were some areas of boney formation or degeneration through that cartilage which is a product of ageing and yes, that could produce a crack.
Q. That would be a more brittle structure?
A. Yes.
Q. And may well produce an audible crack that someone very close would hear?
A. Well, that would be one explanation for a crack, yes.”
35 Dr Collins, nonetheless, thought it unusual that other delicate structures in the near vicinity of the thyroid cartilage had not been damaged. The fracture of the thyroid cartilage in isolation would more commonly be attributed to a direct blow to the throat (T 200).
36 Drs Lawrence and Collins each gave evidence concerning the symptoms observed by the accused in Mr Fyfe shortly before his death. Dr Lawrence said this: (T 12)
“Q. I will just paraphrase. I you could assume that there will be evidence in this trial that the following morning, the morning after the death of Mr Fyfe, the accused gave a version to police that as at the time that he had his hands around the neck of the deceased, the deceased’s tongue appeared to go blue and his eyes appeared to roll back, do you attach any significance to those observations, if indeed they be accurate and reliable?
A. It appears to be a description of somebody being strangled to the point of unconsciousness.”
37 The symptoms having been described, Dr Collins gave the following evidence: (T 214)
“Q. … what does that indicate to you, Doctor?
A. Well, it indicates that he is not well basically, he has lost control of his musculature and his eyes and that sort of finding is commonly seen in all sorts of unconscious states and people who are immediately preceding death. Again in people who may well recover from whatever event has produced it. It is a non-specific finding basically, they don’t indicate anything with any degree of certainty except that his cerebral and musculature functions and cardiac functions are compromised.
Q. If those functions were compromised at precisely the moment that the neck was being compressed, does that suggest a cause and effect nexus?
A. Well, I think we have already discussed that and I have said yes, but I - to a certain extent, but I can’t separate them out as to what it might be, whether it is the neck situation, asphyxia, true asphyxia, the carotid sinus stimulation or his cardiac problems. You know, it is quite possible that this man, despite the fact that somebody’s hanging on his neck and we don’t know how hard, had a cardiac arrest separately and we can’t sort that out.”
38 When the ambulance officer arrived at the flat, he noticed the deceased had a blue tinge around his face (T 156).
The Accused’s Intent
39 In the course of the police interview, the following questions were asked of the accused:
“Q107. When you had his, your hands around his throat …
A. Yeah.
Q. … what were you trying to do to him?
A. Just shut him up, for calling me a dog and a mutt. Just, you know, ‘Don’t say that sorta thing,’ you know.”
40 The police returned to this issue later in the interview. The interview included the following:
“Q115. All right. What did you think was going to happen to him if you kept, if you kept your hands around his throat like that?
A. I was gunna kill him, that’s what I went out to do, kill him, and I succeeded, didn’t I.”
41 A blood sample was taken from the accused by Dr Moynham at 8.00 am. The blood alcohol level of the accused was 0.18 grams/100 mls (Ex K). Upon that basis, it is possible to calculate the likely blood alcohol level at about 12.15/12.30 am, being the approximate time of the incident. Dr Moynham made that calculation. Because rates of elimination vary, the result must be expressed as a range of figures. Dr Moynham calculated that Mr Moffatt’s blood alcohol reading at the time of the alleged offence would have been in the range of 0.277 to 0.375 grams/100 mls (T 96). On the assumption, which appears reasonable (cf Q 132), that Mr Moffatt and the deceased had continued drinking until shortly before the incident, Mr Moffatt’s blood alcohol level was likely to be towards the lower end of the range, according to Dr Perl (T 97), whose evidence I accept.
42 Even the lower figure is, by ordinary standards, a high level of intoxication. However, the ability of Mr Moffatt to function, whilst affected by alcohol, cannot be measured by ordinary standards. Because he was an alcoholic, used to regular heavy drinking, he had developed significant tolerance to alcohol. The body is able to adapt to extremely high concentrations of alcohol (T 95). Some indication of Mr Moffatt’s level of tolerance is provided by the video interview. Dr Moynham estimated that Mr Moffatt’s blood alcohol concentration at the time of that interview (6.15 am) as being in the range of 0.206 to 0.232 grams/100 mls (T 99). Yet, Mr Moffatt appeared throughout the interview to be remarkably lucid. Dr Perl did not believe his cognition was significantly impaired (T 98).
43 Murder is a crime of specific intent. The Crown must demonstrate that, notwithstanding the level of intoxication, the accused intended to kill the deceased, or inflict grievous bodily harm. Mr Moffatt, in the passage extracted, said to the police that he intended to kill Mr Fyfe. His actions would suggest that he did so. Two matters, however, may indicate something less than an intention to kill. First, Mr Moffatt used the flat part of the hammer, rather than the head. The head was likely to do more damage, penetrating its target. Secondly, Mr Moffatt struck the deceased on the chest. He might just as easily have aimed at the head, producing greater harm. On balance, I am not satisfied beyond reasonable doubt that Mr Moffatt intended to kill Mr Fyfe. However, I am satisfied beyond reasonable doubt that the accused intended to inflict grievous bodily harm.
The Role of Messrs Godfrey and Williams
44 Mr Godfrey and Mr Williams both asserted that they were asleep, drunk, during what I have termed the “final assault” (T 54 and T 71).
45 A neighbour, Ms Kelly Findlay, who entered the flat soon after Mr Fyfe’s death, recalled a conversation with Mr Godfrey. Mr Godfrey indicated that he would tell the police (as he told this Court) that he did not know the deceased. According to Ms Findlay, Mr Godfrey said this: (T 92)
“Q. Ronnie said something like, ‘If I tell the truth I’ll get in trouble anyway because I clobbered the guy over the head with a lump of wood’?
A. That’s right.”
46 Upon the basis of that evidence, the following questions were put to Mr Godfrey: (T 58)
“Q. Some time after the glass was smashed up, did you have an argument with the man who finished up dead?
A. As I told you, he was a nice young bloke and he had caused no trouble, he was quite welcome to be there with me and my mates, whatever.
Q. You didn’t get angry with him and hit him with a hammer or a stick or something?
A. You have got to be joking, I would never kill. I have shot rats and I have shot snakes and I always taught my boy, don’t kill anything you can’t eat, right.
Q. I’m not saying that you killed him, I am just saying that you might have hit him with a stick or a hammer?
A. No, there was nothing like that at all because he was just having a few drinks with me and a smoke like me other friends do. Some come and go all the time.”
47 There is no evidence that the death of Mr Fyfe was caused by his being struck with a lump of wood. Indeed, neither Dr Lawrence, nor Dr Collins, thought that the blows to the chest of Mr Fyfe (which were consistent with the hammer) were a likely cause of his death (T 199). Further, the accused made the following statement to Sgt Hazlewood at 4.45 am, referring to Messrs Godfrey and Williams (T 118)
“The old guys were pissed and they don’t know Jack shit.”
48 When the accused was interviewed later the same morning (the ERISP tape), he provided the following answers, referring to the interval between, what I have termed, the first insult (when he was called a “dog”) and the second (when he was called a “mutt”):
“A132. Yeah, well, we were sitting up drinkin’, him and me, right?
Q133. Yeah.
A. Then the old fella and Billy were, they were, you know, they were passed out, you know, and he turned around and just called me a mutt for the second time and I wouldn’t accept it.”
49 I am satisfied beyond reasonable doubt that the Crown has excluded the actions of Messrs Godfrey and Williams as being implicated in the death of Mr Fyfe.

After the Attack
50 Having checked for Mr Fyfe’s pulse, and having placed a mirror to his mouth, and in each case found nothing, Mr Moffatt, in his own words, “panicked” (A 135). Mr Godfrey, by this time, was awake. He suggested to Mr Moffatt that he should pack a bag and leave. However, Mr Moffatt went down the corridor to flat 39. He sought their help. One of the occupants, Ms Jodie Keane, recalled Mr Moffatt saying these words: (T 64)
“You have to help me, I’ve killed someone.”
51 Mr Moffatt added: (T 64)
“I’m really sorry. I didn’t want yous to see this side of me. It shouldn’t have happened.”
52 Mr Moffatt appeared very upset. He said to Ms Keane that the deceased had called him a dog (T 65).
53 Another occupant of the same flat, Ms Findlay, remembered the conversation in these terms: (T 85)
“Q. Did he say something?
A. Yes, he was very upset and he said that he thought he’d just strangled a guy and he was dead.”
54 The third occupant, Mr Both, recalled Mr Moffatt saying that he thought he had just “killed a bloke” (T 151).
55 The group went to flat 41. They checked the pulse of the deceased, and found none. They even attempted mouth to mouth resuscitation (T 151). However, Mr Fyfe was dead.
56 Mr Moffatt, in these circumstances, said to the gathering (as each recollected) words to the following effect: (T 68)
“I’m going to the Seven Eleven to get some smokes and hand myself in.”
57 Each remembered Mr Moffatt as having been extremely drunk. Mr Both gave the following evidence: (T 153)
“Q. When Tony Moffatt talked he appeared to be hysterical?
A. Yes, they were very I’d say incoherent. He didn’t understand what happened. He just didn’t know what he’d done.”
58 Mr Moffatt’s flat was on the third floor of the building. Mr Both assisted him down the stairs. He described that journey in these terms: (T 155)
“Q. How was he as you walked down?
A. Staggering, he held onto me for support.”
The Arrest of the Accused
59 The accused then walked towards the Police Station. At 12.55 am he was observed with two males sitting on the side of the road, adjacent to the Police Station. Sgt Hazlewood then asked the three males to accompany him to the station, which was a few metres away. Mr Moffatt was then detained. The other two males were released. At 3.45 am, Sgt Hazlewood had the following conversation with the accused: (T 117)
“Well, I killed him because he called me a dog and the two other old cunts had nothing to do with it. They’re both in their 60s and I am 36. It was no problem. I am taking it on the chin. I killed him, I just choked him and snapped his neck.”
60 Later, Mr Moffatt repeated the same thing to Sgt Hazlewood at 4.45 am. He said this: (T 118)
“I hit him with a hammer to the chest and put my hands around his throat and killed him. The old guys were pissed and they don’t know Jack shit. Well, I’ll do a lot of time, years over this one.”
61 This conversation was not put to the accused when the ERISP was undertaken, nor adopted by him. No objection was taken to Sgt Hazlewood’s evidence at the time it was given, although objection was made after the conclusion of the evidence. The evidence may be admissible under s 424A of the Crimes Act 1900, or s 85(1) of the Evidence Act 1995. However, objection having been taken by Counsel for the accused, the Crown did not press this evidence as an admission by Mr Moffatt. I will therefore not so regard it. It is, however, admissible for another purpose. There is an issue of confabulation (to which reference will be made shortly). It is relevant to that issue. It is yet another account by the accused, consistent with accounts given before and after.
62 Later the same morning the accused spoke to Sgt Jones, who had taken charge of the case. The conversation was recorded by Sgt Jones in his notebook. It was later read to the accused, when he was interviewed on video tape. The notebook was signed. It included the following:
“Q45. … Then you said to me, ‘Well, I hit on the chest with the hammer and put me hands around his …’
A. On the left hand side, the middle and the right hand side.
Q46. Did you? All right. You said that and then you said, ‘Put your hands round my throat because he called me a dog.’
A. That’s right.”
63 I accept that the accused made these statements.
The Reliability of the Accused’s Account
64 Two issues were raised in respect of the police interview, the ERISP tape. The issues are related.
· First, has the Crown excluded beyond reasonable doubt the possibility of confabulation?
· Secondly, even if the interview is not fantasy, can it be relied upon for the purposes of such issues as causation?
65 Dealing with the first issue, Dr Wong, a psychiatrist, believed that it was unlikely that Mr Moffatt’s account to the police was invented, that is, that it was confabulation. First, although Mr Moffatt during the police interview was intoxicated (according to his blood alcohol level), and although a person who is intoxicated is rather more likely to confabulate or exaggerate, it is evident from the interview that Mr Moffatt had developed significant tolerance to alcohol. He did not manifest signs of intoxication. When he signed the notebook, his hand did not shake. His speech was not slurred.
66 Secondly, Mr Moffatt’s account is corroborated by witnesses who were apparently sober, and by other evidence.
67 Thirdly, the accounts given by the accused, both contemporaneously and since his incarceration, are consistent. Immediately after the incident, Mr Moffatt spoke to neighbours. Some hours later he spoke to Sgt Hazlewood and Det Sgt Jones. He was then interviewed on video (the ERISP tape). The fundamentals of each version are the same, although they differ in the level of detail. Mr Fyfe called him a dog. The accused attacked Mr Fyfe with a hammer. He then strangled him to the point of apparent lifelessness. He believed that he had killed him. The accounts he gave much later to Doctors Wong and Strum are not dissimilar, although incomplete.
68 I accept that the Crown, in these circumstances, has excluded confabulation.
69 Turning to the second issue, how reliable is the account of the accused? Specifically, is the Court able to rely upon his description of the sequence, and the timing of each aspect in that sequence? The written submissions, made on behalf of the accused, make the point in these words:
“But as a matter of common sense, the more intoxicated the person the less accurate the version of events that the person will give. Drunks are not reliable witnesses.”
70 The submissions point to a number of matters. They demonstrate, so it is claimed, the unreliability of Mr Moffatt’s account. First, the accused’s account is inherently implausible. The accused asserted that he murdered someone who was almost a complete stranger. He described a reaction to insult which was a gross over-reaction.
71 Secondly, the accused described an argument concerning a knife. Yet, it is suggested, the accused had disposed of the knife before Mr Moffatt met the deceased for the first time. Question 78 in the interview is said to demonstrate that fact.
72 Thirdly, it is said that the accused’s version to the police in the ERISP tape is confused and contradictory. His first account of the incident (Q 81 to Q 85), where the insults follow one upon another, does not sit comfortably with his later account where they are separated by three-quarters of an hour (Q 128 to Q 133). Certain aspects of Mr Moffatt’s account are said to be improbable.
73 Fourthly, the accused described Mr Fyfe at the time of his arrival as “three quarters pissed” (Q 172). Mr Fyfe, some hours later, at the time of his death, was found to have a blood alcohol level of 0.48 grams/100 mls. Plainly, even at the time of his arrival, he was in an advanced state of intoxication.
74 Each professional witness who saw the ERISP tape was struck, as I was, by Mr Moffatt’s lucidity, and the consistency of his answers. Dr Perl saw the explanation as the accused’s extreme tolerance to alcohol, arising from his prolonged heavy drinking (T 96). His answers were rational, and responsive (T 98). He appeared to comprehend the questions put to him. The answers he provided were appropriate. His memory appeared unimpaired (T 100).
75 Dr Wong drew attention to particular answers which demonstrated the level of Mr Moffatt’s comprehension. He sought clarification of some questions (for instance, Q 23). He was prepared to disagree with the version put to him (Q 86/87). He anticipated, correctly, questions which the police were endeavouring to ask (Q 27). It is plain from his responses that he was not reacting in a perfunctory manner. He was able to accurately paraphrase the standard caution given by police. He corrected a mistake by the police concerning his flat number. He provided the level of his pension benefits, accurate to the cent.
76 Dr Strum provided the following opinion: (T 227)
“Q. Are you able to express any view as to his ability at that time - and bearing in mind that quantity of intoxication - to make a choice as to whether or not he should speak or remain silent?
A. I saw the interview, I haven’t seen it for some time but I was impressed that it was, you know, it didn’t indicate to me anything in the way of abnormality and I can’t see any reason why he would not have been able to choose that, to make that interview.”
77 Turning to submissions made on behalf of the accused, it is convenient to deal with the first three arguments together. For my part, I do not find the account of Mr Moffatt implausible. Indeed, I find the reverse. It is plain that Mr Moffatt had met Mr Fyfe previously. He had, apparently, shown him a knife which he used to own. There is no warrant from inferring from his answer to question 78 that Mr Moffatt had disposed of the knife before their first meeting. Far from being confused and contradictory, Mr Moffatt, in my judgment, appears lucid and consistent.
78 There are three respects in which Mr Moffatt’s answers may be unreliable. First, his assessment of the level of intoxication of Mr Fyfe was clearly awry. However, that is perhaps not surprising. It is the assessment by one alcoholic of another. Their yardstick of normality is not that of the ordinary citizen. Secondly, Mr Moffatt in his answer to question 92, does telescope the two insults. Again that is not surprising. Each insult was essentially the same. The second was the more provocative because of the first. The two incidents were, in other words, connected in Mr Moffatt’s mind. To me it is unremarkable that he should mention both together. Thirdly, Mr Moffatt’s estimate of the time between the first insult (signified by the shattering of the glass), and the second, namely three-quarters of an hour, would appear to be wrong. The interval was more likely ten to fifteen minutes. That, in my judgement, does not render Mr Moffatt’s account unreliable.
79 There is substantial corroboration for the account given by Mr Moffatt. Mr Moffatt described the way in which he reacted to Mr Fyfe’s pestering concerning the knife. He broke a number of glass ornaments, and a mirror. There were broken ornaments, and a broken mirror in the flat when the police arrived. They were photographed. The photographs form part of Exhibit C. Mr Moffatt claimed to have used a black claw hammer to strike the deceased on the chest. Such a hammer was found at the flat. The chest injuries of Mr Fyfe were consistent with having been inflicted by that hammer. The accused said that he heard cracking. The injuries to Mr Fyfe included broken ribs. According to the medical evidence, you could expect to hear ribs crack in the circumstances described by Mr Moffatt. Mr Moffatt said that he did not draw blood from Mr Fyfe. He insisted that certain blood on the hammer came from him. The post mortem, and the blood analysis undertaken in respect of the hammer, support his assertions. Mr Moffatt said that he took hold of the deceased around the throat. There was bruising to the throat, consistent with his having done so. He said that he strangled Mr Fyfe until he heard a crack. The autopsy revealed a fracture to the thyroid cartilage. Such a fracture, when inflicted manually, could be expected to produce a crack. Mr Moffatt claimed to have checked whether Mr Fyfe was breathing by placing a piece of broken mirror, or glass, in front of him. There was, as mentioned, both broken mirror and glass in the flat. Mr Moffatt said that after Mr Fyfe appeared lifeless, he left the flat. He sought the assistance of neighbours. His neighbours confirmed that he did so. Mr Moffatt said that he would buy some cigarettes, and give himself up to the police. He was arrested metres away from the Police Station, sitting by the side of the road.
80 In assessing the evidence, and reaching the views I have expressed, I have been conscious of s 165 of the Evidence Act 1995, relating to the warnings to be given to a jury, where the matter proceeds before a jury. Much, indeed most of the evidence against the accused is in the nature of admission (cf s 165(1)(a)). However, these were not admissions which were denied by the accused. Rather, the issue was whether they may be fantasy (confabulation), or unreliable by reason of his intoxication. Section 165(1)(c) specifically deals with evidence which may be unreliable by reason of ill-health (mental of physical) or such matters. I take that phrase to include alcoholism, and the level of intoxication of the accused at the time he was interviewed. In making my findings, I have been conscious of these warnings.
81 I am nonetheless persuaded beyond reasonable doubt that the account given by Mr Moffatt to the police is, except in the minor respects which I have identified, reliable.
The Issue of Causation
82 Dr Lawrence, having performed the post mortem, provided a medical certificate to the Coroner. He identified the direct causes of death in these terms: (Ex A)
“Combined effects of compression of the neck, blunt force chest injury & acute ethanol intoxication.”
83 Dr Lawrence’s report also described the following, under the heading, “Other significant conditions contributing to the death but not relating to the disease or condition causing it”: (Ex A)
“Atherosclerotic cardiovascular disease”
84 The determination of the cause of death, based purely upon the autopsy findings, was clearly a puzzle. There were indications of strangulation. There was bruising to the neck and abrasions. There was an oblique fracture to the thyroid cartilage. Yet there were also odd features. In strangulation the veins of the neck and head are occluded. There is a pressure build-up which tends to transmit its forces to the small delicate blood vessel walls around the eyes, creating what are referred to as petechial haemorrhages. Here, there was no convincing evidence of petechial haemorrhaging. It is unusual but possible to have strangulation without petechial haemorrhages. Dr Byron Collins suggested a mechanism that may well furnish an explanation for their absence. He said this: (T 209)
“… where the death is not related to asphyxiation at all but to one of the neck structures, one of the structures in the neck, of the carotid artery and that is the carotid sinus and that is an area in the arterial wall which is sensitive to stimulation which is connected with a number of autonomic nerves within the body and particularly in this case, the vagus nerve which, if stimulated, can slow the heart. Now this is certainly one mechanism in manual strangulation or the touching of somebody’s neck where they die and it can produce a very sudden slowing and catastrophic slowing of the heart.”
85 There is no doubt that the deceased suffered from advanced coronary artery disease. One of the major arteries to the heart was narrowed 75 percent (T 16). Had there been no suggestion of trauma to Mr Fyfe, this condition would have furnished an acceptable cause of death. A person whose heart is compromised to that degree is liable to drop dead, without warning symptoms. There was also evidence of the deceased having previously suffered a myocardial infarction, or heart attack.
86 The accused must, of course, take his victim as he finds him. The issue is whether Mr Moffatt, by his actions, accelerated the death of Mr Fyfe. Dr Lawrence said this: (T 16/17)
“Q Would sudden compression of the neck and forceful application of blows to the chest contribute or accelerate such a dropping dead?
A. Yes.
Q. Would you expect that someone who had that cardiovascular disease to that degree, that if they did suffer a compression of the neck so as to fracture the thyroid cartilage and immediately preceding that sustained three blows to the chest that caused rib fractures, would you expect that to accelerate death in someone who had such a cardiac disease?
A. Yes, I would expect it.”
87 Dr Byron Collins’ view was no different. He said: (T 213)
“… then somebody who has a pre-existing heart condition such as coronary artery disease and the blood supply is already compromised because of that situation and then it is further compromised, particularly the oxygen content thereof, by stopping the person from breathing properly, then yes, that would increase the likelihood of that person having an abnormal cardiac rhythm and even a fatal cardiac arrhythmial.”
88 The deceased, as mentioned, had a blood alcohol level of 0.48 grams/100 mls at the time of his death. In a heavy drinker, who has developed tolerance, a blood alcohol level of 0.5 grams/100 mls is regarded as approaching a lethal level. However, there is considerable variation between individuals, depending upon their make-up, and drinking history.
89 Where a person dies from the effects of a lethal dose of alcohol, they may either lapse into a coma, or may irritate the heart, causing sudden arrhythmia and death.
90 It was submitted, on behalf of the accused, that, given the complexity of the medical conditions from which the deceased suffered, as revealed by the autopsy, the Crown had not proved beyond reasonable doubt that it was the actions of the accused which caused death. Put another way, the Crown had not excluded as possibilities, which may be regarded as unreasonable or irrational, that Mr Fyfe had died as a consequence of alcoholic poisoning, or a spontaneous unrelated heart attack (cf Puckeridge v The Queen (CCA, unreported, 3 November 1998)).
91 The High Court in Royall v The Queen (1990) 172 CLR 378, made a number of observations upon the issue of causation. Mason CJ, Deane and Dawson JJ, and Gaudron and Toohey JJ each cited, with approval, the comments of Burt CJ in Campbell v The Queen (1981) WAR 286, where the following was said: (at 290)
“(It is) enough if juries [are] told that the question of cause for them to decide is not a philosophical or a scientific question, but a question to be determined by them applying their common sense to the facts as they find them, they appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter.”
92 The judgments of individual members of the Court differ in their formulation of the test to be applied. Brennan J believed that the accused’s act or omission “must contribute significantly to the death of the victim” (at 398). Deane and Dawson JJ said that it would be sufficient if the accused’s conduct “is a substantial or significant cause of death” (at 411). The “causal connection must be sufficiently substantial to enable responsibility for the crime to be attributed to the accused” (at 412). Toohey and Gaudron JJ believed the jury will inevitably concentrate its attention upon “whether the act of the accused substantially contributed to the death” (at 423). McHugh J believed that the wrongful act must be “an operating cause and a substantial cause” (at 444).
93 The possibility was raised, in the examination of witnesses, that perhaps because of his level of intoxication, the accused did not observe the collapse of Mr Fyfe, and his death (from alcohol or an unrelated heart attack), so that the injuries which Mr Moffatt may have inflicted were inflicted after death.
94 There are, however, a number of difficulties with that suggestion. First, it is of course contrary to the account given by Mr Moffatt to his neighbours, to Sgt Hazlewood, to Sgt Jones, and ultimately in the recorded interview, all of which are entirely consistent with each other.
95 Secondly, the accused described the deceased before the attack in these words:
“Q179. Did, did he complain before you did, you choked him and everything, did he complain of being crook or anything, or was he, was he OK?
A. No, he was fine, he was …
Q180. …
A. Yeah, he was drinkin’ piss as much as what I was.
Q181. Right. But he was all right?
A. Yeah, he was all right as far as I know.
Q182. He didn’t complain to you about anything?
A. No. Not that I know of.”
96 Thirdly, one of the findings on autopsy was haemo-aspiration. There was a lot of blood in the upper airway. Dr Lawrence said this: (T 11)
“Q. Now does the observation of haemo-aspiration, does that suggest to you that at the time the ribs were fractured that the deceased was still alive?
A. Yes, to breathe in the blood you would need to be making chest movement.”
97 Fourthly, the account of the accused included a description of Mr Fyfe attempting to push him away in the course of the strangulation. Plainly, Mr Fyfe was alive at that point.
98 The report provided by Dr Lawrence included the following: (Ex A, p 10)
“Based on reports from individuals present at the time, there is a temporal relationship between the injuries and death. Further, it is reported that the victim was talking and making purposeful movements prior to the assault.”
99 Dr Lawrence, in re-examination by the Crown, gave the following evidence, which I accept: (T 50)
“Q. If you assume that whilst the accused was being throttled, as my friend puts to you, that he tried to push the assailant off and that at that stage there was a crack, the eyes rolled and the tongue turned blue and at a very short time after that, the assailant checked for pulse and checked for breathing and both were absent?
A. Yes.
Q. Does that suggest that there is a temporal link between the compression of the neck and the death?
A. Yes, it does.
Q. Does that suggest to you that given that temporal link, that there is a causal nexus between the compression of the neck and the ultimate death?
A. That is what it implies, yes.
Q. Does that suggest to you that the compression of the neck was an operating and substantial cause in the ultimate death?
A. That’s why I have given the combined effects of neck compression with the others.
Q. But, apart from the conclusions you drew in relation to the autopsy examination alone, if you factor in that account from the accused that there was pushing off, crack, eyes rolling, tongue blue, and then no signs of life, that rapid, temporal connection; does that suggest that the compression of the neck was an operating and substantial causal factor in the death?
A. Yes.”
100 The precise mechanism of death may be obscure, given the cardiac history of the deceased, and his state of intoxication. However, approaching the matter in a common sense way, as I am enjoined to do, I am satisfied beyond reasonable doubt that the actions of the accused caused the death of Richard James Fyfe. They were the substantial, and operating cause. They contributed significantly to his death.
The Elements of the Offence
101 The Crown, therefore, has proved beyond reasonable doubt the elements of murder, namely:
· First, the death of Richard James Fyfe on 26 April 1996.
· Second, that the actions of the accused in striking Mr Fyfe with a hammer, and thereafter strangling him, caused that death.
· Third, that these actions were unlawful, in that they were not in self defence.
· Fourth, that the accused at the time he struck Richard James Fyfe, and strangled him, intended to inflict grievous bodily harm.
Two matters were raised relevant to the possible reduction of the charge to manslaughter, namely:
· First, there is an issue of provocation. The onus is, of course, upon the Crown to exclude beyond reasonable doubt that there was provocation (s 23(4) Crimes Act 1900).
· Secondly, the issue of diminished responsibility. The onus is upon the accused to establish diminished responsibility upon the balance of probabilities.
102 I will now deal with each of those issues.
The Issue of Provocation
103 First, it is plain that the accused, in fact, lost self control. Secondly, it is also clear that it was the conduct of the deceased, in repeatedly calling Mr Moffatt a dog, which induced that loss of control. The real issue, therefore, concerns the third element of provocation: was the conduct of the deceased such that it could have induced an ordinary person, in the position of the accused, to have so far lost self control as to have formed an intention, relevantly, to inflict grievous bodily harm upon the deceased?
104 In dealing with that issue one must first take account of the position of the accused (s 23(2)(b) Crimes Act 1900). In Stingel v The Queen (1990) 171 CLR 312, the Court said this: (at 326)
“The content and extent of the provocative conduct must be assessed from the viewpoint of the particular accused. Were it otherwise, it would be quite impossible to identify the gravity of the particular provocation.”
105 Having placed itself in the shoes of the accused, so that the full force and sting of the insult is understood, an objective test is then applied. In the same case the Court explained that test in the context of the Tasmanian Criminal Code. The ordinary person test is: (at 327)
“… to provide an objective and uniform standard of the minimum powers of self-control which must be observed before one enters the area in which provocation can reduce what would otherwise be murder to manslaughter. While personal characteristics or attributes of the particular accused may be taken into account for the purpose of understanding the implications and assessing the gravity of the wrongful act or insult, the ultimate question posed by the threshold objective test of s 160 (2) relates to the possible effect of the wrongful act or insult, so understood and assessed , upon the power of self-control of a truly hypothetical ‘ordinary person’. Subject to a qualification in relation to age …, the extent of the power of self-control of that hypothetical ordinary person is unaffected by the personal characteristics or attributes of the particular accused.” (emphasis in original)
106 In Green v The Queen (1996-97) 191 CLR 334, Brennan CJ identified the issue arising under s 23(2) of the Crimes Act (NSW) in these words: (at 340)
“Paragraph (b) requires the jury to take full account of the sting of the provocation actually experienced by the accused, but eliminates from the jury’s consideration any extra-ordinary response by the accused to the provocation actually experienced. Thus extra-ordinary aggressiveness or extra-ordinary want of self-control on the part of an accused confer no protection against conviction for murder.
The objective test prescribed by par (b) turns not on what the ordinary person would have done in response to the provocation experienced, but on what the ordinary person could have been induced to intend .” (emphasis in original)
107 Here, there is no question that the accused found the repeated insults of the deceased (in calling him “a dog”, and then “a mutt”) grossly offensive. He explained why to Dr Strum: (Ex 2, p 9)
“I asked Mr Moffatt why it mattered that he had been called ‘a dog’. He told me that he was ‘old school crim’ which meant that he had a criminal record and had been in gaol and found it offensive to be called ‘a dog’.”
108 That being the context, the objective standard is then applied. The ordinary person, for these purposes, is a person of the same age as the accused with ordinary powers of self control, not effected by alcohol. The written submissions made on behalf of the accused acknowledged that the reaction of the accused was abnormal. It was not a reaction which an ordinary person, in the position of the accused, could, by reason of such insults, have been induced to intend. The submission said this, referring to the ERISP transcript:
“About three quarters of an hour later (Q130) the deceased repeated an insult (Q85) and the accused, while seated on a chair (Q121) hit the deceased three times with a hammer (Q85) then started strangling the deceased, who was seated on the end of a bed (Q124) and did so for a minute until ‘I went crack’ and he was dead.
The account does not correspond with ‘normal’ reactions to insults. The average man does not take to a friend’s glassware with a hammer because a stranger asks about a piece of property no longer possessed. The average man does not commit murder because of being called a ‘dog’.”
109 The Crown, therefore, has excluded beyond reasonable doubt the defence of provocation.
Diminished Responsibility
110 In order to establish the defence of diminished responsibility, the accused must show, on the balance of probabilities, the following:
· First, that he suffered from an abnormality of mind.
· Secondly, that the abnormality is permanent (rather than transient), and arises as a consequence of arrested or retarded development, induced by disease or injury, or through inherent causes.
· Thirdly, that the abnormality substantially impaired the mental responsibility of the accused in respect of what he did.
111 Dr Wong, called by the Crown, did not believe that Mr Moffatt was suffering from an abnormality of mind (Ex J).
112 Dr Strum, however, came to a different view. He reviewed the evidence concerning the possibility of Organic Brain Syndrome. Given Mr Moffatt’s history of alcoholism, he thought it likely that there may be such damage. There were symptoms consistent with that diagnosis. However, his view in September 1998, when he examined Mr Moffatt, was expressed, finally, in these terms: (Ex 2, p 15)
“At the time of interview I noticed that, mentally, Mr Moffatt seemed to be functioning very well. There was no disorientation. He was able to abstract adequately. His general knowledge was good and there was no evidence of an Organic Brain Syndrome.”
113 Dr Strum, nonetheless, thought that Mr Moffatt’s symptoms suggested a personality disorder, whether Borderline Personality Disorder or Anti-Social Personality Disorder. Further investigation was required, including CT scans, to clarify whether there was, in fact, organic brain damage.
114 A neuro-psychologist, Ms Alexandra Walker, saw the accused in March 1999. She carried out a number of tests. The tests, however, were inconclusive. She said this: (Ex 3, p 4)
“The cognitive difficulties described above are relatively subtle, with frank impairment evident on one test only. The question thus arises as to whether these findings result from acquired damage to the brain or were present pre-morbidly. The finding of isolated impairment on a test may occur in the apparent absence of brain pathology and therefore is not always considered abnormal. In this case, however, there is no doubt that a significant amount of alcohol was consumed over a long period, and this is likely to have resulted in some damage to the brain. In addition, the pattern of cognitive impairment is consistent with that described in the literature of alcohol-related brain damage.”
115 Dr Strum was provided with that report (and a further report by Ms Robilliard, a psychologist). He then gave the following evidence: (T 232)
“Q. Given the psychological assessment contained in those two reports, is it still your view that at the relevant time Mr Moffatt suffered from an abnormality of mind?
A. Yes, I think it is a possibility. I put the emphasis on mild. The abnormality of mind would have been in terms of frontal lobe damage leading to personality disorder. I mean, the abnormality is not one leading to cognitive disorder, although there may have been some present. It was one leading to a personality disorder with poor judgment and poor impulse control. I put it no more than a possibility.”
116 I accept that the accused did suffer from an abnormality of mind. I believe the personality disorders described by Dr Strum can be so characterised. I further believe that in 1996 they were well entrenched. The real issue, therefore, concerns whether the third element of diminished responsibility has been established, namely, whether the abnormality of mind substantially impaired the mental responsibility of the accused for what he did.
117 In respect of that issue Dr Strum said this: (T 234)
“HIS HONOUR: Q. Significantly or substantially impaired?
A. I do know that. I have been told in court that there has been some conflict on that.
Look, I think it is going to have to be up to the Court to make its mind up on this one. I think it is on the borderline of that. I think it was impaired but I’m not sure to what extent it was impaired. Five percent, 10 percent, 15 percent. Certainly not 50 percent. So, yes, there was impairment, but I wish I could be more helpful on the third limb. I can’t be.”
118 He added: (T 234/235)
“CROWN PROSECUTOR: Q. You certainly would not describe the impairment as significant?
A. Well, it is significant insofar as his whole life has been a mess and he has behaved like this before and now finds himself before the Courts. Any impairment that can do this to a person must be significant. But I still am not sure whether it was just that abnormality of mind or other things that operated to cause him to act as he did. I think that there was impairment but I think it was - it was certainly there. How substantial it was I am really not sure. I think those other factors have to be taken into account but I do not think it is for me to do.”
119 His final position, in respect of whether the abnormality substantially impaired the mental responsibility of the accused was as follows: (T 235)
“Q. That is what we are talking about?
A. Yes, it is. Well, I will say yes, but not with the fullest of confidence.”
120 I am, however, not persuaded that the abnormality of mind, rather than other matters, including alcohol, substantially impaired the mental responsibility of the accused. The accused knew what he was doing. He knew that he was inflicting serious harm. He was acutely aware of his responsibility once Mr Fyfe became lifeless. Indeed, he readily acknowledged that responsibility to everyone with whom he spoke that morning.
121 ANTHONY STUART MOFFATT , I find you guilty of the murder of Richard James Fyfe.
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Last Modified: 03/26/1999