The State of Western Australia v McDonald [No 2]
[2010] WASC 355
•30 NOVEMBER 2010
THE STATE OF WESTERN AUSTRALIA -v- McDONALD [No 2] [2010] WASC 355
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2010] WASC 355 | |
| Case No: | INS:210/2009 | 15-19, 22 & 23 NOVEMBER 2010 | |
| Coram: | HALL J | 30/11/10 | |
| 53 | Judgment Part: | 1 of 1 | |
| Result: | Guilty of wilful murder | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA BRETT DAVID McDONALD |
Catchwords: | Criminal law Trial by judge alone Wilful murder Murder Self defence Insanity Whether accused lacked capacity to know what he did was wrong Whether accused had a delusion that affected culpability |
Legislation: | Criminal Code (WA), s 1, s 26, s 27, s 222, s 248, s 268, s 270, s 278 (repealed), s 279, s 281, sch 1 cl 2(2) Criminal Procedure Act 2004 (WA), s 118, s 120(2) |
Case References: | Evans v The State of Western Australia [2010] WASCA 34 Garrett v The Queen [1999] WASCA 169 Hone v The State of Western Australia [2007] WASCA 283 Mizzi v The Queen [1960] HCA 77; (1960) 105 CLR 659 M'Naghten's Case (1843) 8 ER 718 R v Matusevich [1976] VR 470 R v Michaux (1984) 2 Qd R 159 R v Porter [1933] HCA 1; (1933) 55 CLR 182 R v Walsh (1991) 60 A Crim R 419 Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358 Ward v The Queen [2000] WASCA 413; (2000) 23 WAR 254 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Prosecution
AND
BRETT DAVID McDONALD
Accused
Catchwords:
Criminal law - Trial by judge alone - Wilful murder - Murder - Self defence - Insanity - Whether accused lacked capacity to know what he did was wrong - Whether accused had a delusion that affected culpability
Legislation:
Criminal Code (WA), s 1, s 26, s 27, s 222, s 248, s 268, s 270, s 278 (repealed), s 279, s 281, sch 1 cl 2(2)
Criminal Procedure Act 2004 (WA), s 118, s 120(2)
Result:
Guilty of wilful murder
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Category: B
Representation:
Counsel:
Prosecution : Mr B Fiannaca SC & Mr R P K Soh
Accused : Mr T F Percy QC & Ms V S Y O'Brien
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
Accused : Legal Aid (WA)
Case(s) referred to in judgment(s):
Evans v The State of Western Australia [2010] WASCA 34
Garrett v The Queen [1999] WASCA 169
Hone v The State of Western Australia [2007] WASCA 283
Mizzi v The Queen [1960] HCA 77; (1960) 105 CLR 659
M'Naghten's Case (1843) 8 ER 718
R v Matusevich [1976] VR 470
R v Michaux (1984) 2 Qd R 159
R v Porter [1933] HCA 1; (1933) 55 CLR 182
R v Walsh (1991) 60 A Crim R 419
Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573
Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358
Ward v The Queen [2000] WASCA 413; (2000) 23 WAR 254
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- HALL J: (The published version of this judgment has been edited by removing parts of [21], [22] and [84] in order to ensure compliance with a suppression order made on 15 November 2010.)
1 Brett David McDonald stands charged that on a date unknown between 31 August 2004 and 1 January 2005 at Munster he wilfully murdered Steven David Petersen. In the alternative he is charged with murdering Mr Petersen.
2 The accused pleaded not guilty to each of the charges. He sought and was granted trial by judge alone pursuant to s 118 of the Criminal Procedure Act 2004 (WA). The matter proceeded to a trial before me between 15 and 23 November 2010.
3 Although the laws in relation to homicide changed in 2008 the applicable law in this case is that which existed at the time of the alleged offence: sch 1 cl 2(2) of the Criminal Code (WA) (subject to changes to sentencing provisions). Accordingly, the charge of wilful murder is pursuant to the former s 278 and the alternative charge of murder is pursuant to the former s 279. Throughout these reasons references to provisions of the Criminal Code will be to those provisions as they stood at the time of the alleged offence.
4 At the commencement of the trial the accused admitted that:
(1) on a day between September and December 2004 he struck Mr Petersen on the head with an axe;
(2) this occurred at 707 Rockingham Road, Munster at approximately 9.00 pm;
(3) the blow to the head caused Mr Petersen's death;
(4) following the blow he dismembered Mr Petersen's body and buried the body parts on land belonging to Cockburn Cement situated at 242 Russell Road East, Munster;
(5) bones found at the Cockburn Cement property on 4 March 2009 by police were those of Mr Petersen and
(6) he was the person that caused Mr Petersen's death.
5 As is clear from the admissions, many of the facts were not in substantial dispute. What was in dispute was as to exactly what had occurred at the time that the accused struck Mr Petersen with the axe and
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- what the accused's state of mind at that time was. The defence case is that the accused acted in self defence or alternatively that he is not criminally responsible for his actions because he was in such a state of mental impairment as to lack capacity to know that he ought not to do the act or was affected by a delusion that caused him to believe that it was necessary to act as he did in self defence: s 27 of the Criminal Code. In the event that the insanity defence is not made out the defence case is that the evidence did not establish beyond reasonable doubt that the accused had an intention to kill or do grievous bodily harm. Alternatively, if he did have such an intention the defence case is that he acted on sudden provocation and should be found guilty of manslaughter only: s 281 of the Criminal Code.
Prosecution case
6 In late 2004 the accused was living in rented premises in Rockingham Road, Munster. He lived there with his de facto partner Ms Nan-Marie Lundberg and her teenaged daughter. The relationship with Ms Lundberg had commenced some two to three years earlier when they were both living in South Australia.
7 Ms Lundberg said that from the time that they had lived in South Australia the accused had expressed a belief that people were after him. She was asked:
Did he elaborate?---Well, he did say it was something to do with an incident that happened in Sydney where he said some things to police that put a person in gaol and that person had connections with the rebel bikie gang so he always thought that they were out to get him.
Did you express a view about that to him at any time?---I did. I - I never saw anyone act out of the ordinary towards Brett. I never saw anyone that was so called after him, but he would barricade the house doors so that nothing could get in and nothing could really get out.
In what way would he barricade the doors?---With locks and chains and at one stage even a big iron bar through the door on the inside.
Where were you living when he did that?---In South Australia.
Did he do that at any time while - after you had moved to Western Australia?---He did to the back veranda of our house, he closed it in so that - and chained it and locked it so nobody could get into it (ts 50 - 51)
8 Ms Lundberg said that in February 2004, after moving to Western Australia, she first met Mr Petersen through an acquaintance. She said that thereafter Mr Petersen would call in for a visit and that she would
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- have a chat and a cup of coffee with him perhaps once a month. She said that she had much in common with Mr Petersen as they were about the same age, both had daughters of a similar age and both had mothers who were suffering from dementia. She said that initially the accused appeared to bear no animosity towards Mr Petersen.
9 Sometime later in 2004 the accused went to Darwin for six weeks for work. Around this time, though Ms Lundberg was unsure exactly when it was, Mr Petersen asked her if he could stay at the back of the property in his van. She agreed to this and he subsequently moved into a spare bedroom in the house. She said that the moving into the house occurred after the accused returned from Darwin. However, sometime shortly after he returned the attitude of the accused towards Mr Petersen changed. He told Ms Lundberg that he did not want Mr Petersen living at the house anymore and that he did not like him. He said that Mr Petersen was a 'loser' and a 'junkie'. She said that he was angry when he said these things to her.
10 As a consequence Ms Lundberg asked Mr Petersen to leave and he did. Sometime later Ms Lundberg was driving in a car with the accused when they saw Mr Petersen. She gave the following evidence in this regard:
And what did Mr McDonald say to you?---Just that he - he could - he - he could kill him.
Right. And did you respond to that?---Yes.
What did you say?---I just asked him why. 'What's he ever done to you?' And - but just said, 'I just don't like the guy.'
Are you able to describe his tone, his demeanour when he said that?---Anger.
Was Mr Peterson the only person who was a friend of yours in respect of whom Mr McDonald had said that sort of thing?---Yes (ts 60).
11 Ms Lundberg was asked whether the accused had ever spoken of Mr Petersen as being one of those involved with the bikie gang that he believed were after him. She said that the accused did not say anything in this regard and did not give her any indication that he was afraid of Mr Petersen.
12 Ms Lundberg said that one evening towards the end of 2004 she had a conversation with the accused regarding Mr Petersen. She said that she
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- had been lying in bed watching television when she got up to get a drink of water. Her evidence in this regard was as follows:
Tell us what you saw and what was said?---He was sitting on the kitchen bench and he said that 'we don't have to worry about that Stevo any more' and I just asked him, 'Well, what do you mean?' and he said, 'I've just killed him.'
Was anything else said?---He asked me if I wanted to know what he had done and I said, 'No, I don't,' and I got my drink of water and went back to bed.
Well, when you said that you didn't want to know, did he say anything further?---'You're better off not to know.'
Ms Lundberg, can you describe Mr McDonald's appearance when you first saw him in the kitchen that night?---He just was very calm with very dark eyes. His eyes were very dark.
Can you just tell us what you mean by that, that his eyes were very dark?---They were wild looking, like sharks' eyes.
Had you ever seen him looking like that before?---I had, yes.
When had you seen him looking like that?---Whenever he got angry.
What was he doing, if anything, when you first saw him that evening?---He was just sitting up on the kitchen bench fiddling with his pocket knife (ts 62 - 63).
14 In cross-examination Ms Lundberg said that the accused was obsessed by a fear that motorcycle gangs were after him. He told her that this was because he had 'blabbed his mouth off when drunk one night in South Australia'. She recalled that on one occasion she and the accused had met a man named Alan Blood in Fremantle who they had previously met in South Australia and whilst she had thought this was a coincidence the accused had believed that this man was one of those who was after
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- him. She could not, however, recall the accused mentioning the names of any others who he feared and he did not tell her that he thought Mr Petersen might be part of this conspiracy.
15 Ms Lundberg accepted that she and the accused had used amphetamines on an occasional basis but she said that this had ceased when she became pregnant with her second child in late 2004. She said that she was aware that Mr Petersen also used amphetamines and that there might have been the odd occasion in which she, the accused and Mr Petersen used drugs together, though she could not remember doing so. However, she denied that Mr Petersen ever sold or supplied any drugs to her and the accused.
16 Ms Lundberg accepted that her police statement accurately set out the conversation between her and the accused in regard to him having killed Mr Petersen. According to the statement the accused said 'Well we won't be seeing him anymore', that Ms Lundberg asked who and the accused said 'that effing Stevo' that the accused then said 'do you want to know what I've done how I did it' and that Ms Lundberg said 'what kill the guy' and the accused said 'yes'. The accused then said 'the less you know the better, your better off not to know'.
17 The State called Wilfredo Riddick, a work colleague of the accused some five to six years ago. He gave evidence that Mr McDonald had worked as a trainee as part of a bricklaying traineeship and that they had worked together for approximately 12 months. He recalled that Mr McDonald began drinking more heavily towards the latter six months and that he appeared to be on edge and wary all of the time. About half way through the period that they worked together Mr Riddick had been asked by the accused to assist him in moving a vehicle. He thought that the accused had used the words 'steal' or 'get rid of' a vehicle. Mr Riddick agreed and was picked up by the accused from his home. They drove together to the Munster property where Mr Riddick assisted in moving a white Toyota van. There is no dispute that this must have been the van belonging to Mr Petersen.
18 The accused told Mr Riddick that the van was stolen and that he had to get rid of it. The van was driven from its location a short distance from the Munster property up to the house where some tools, bags of clothes and blankets were placed inside. They then drove off in the car but there was some difficulty with the gears. Mr Riddick got out and walked back to the Munster property and the accused drove off and sometime later returned without the van.
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19 A statement from Ivan Vidovic was read by consent. Mr Vidovic had been a previous employer of the accused and stated that at the end of that period of employment on 3 August 2007 the accused owed him $500 which he had received as pay in advance. When asked about repayment the accused offered a chainsaw. It was not disputed that the chainsaw in question was the one that was used to dismember the body of Mr Petersen. Mr Vidovic received the chainsaw and stored it on his business premises until it was subsequently provided to the police.
20 On 4 March 2009 Mr Vidovic was telephoned by the accused who asked if Mr Vidovic still had the saw and that he wanted it back. The accused said that he needed it desperately and when asked why said that it was a matter of life and death to his little daughter and that it was a legal matter.
21 In 2008 and 2009 the police conducted an undercover operation as part of their investigation of this matter. By that time Mr Petersen had been reported missing but his remains had not been located. The accused was identified as a possible suspect. [suppressed]. This culminated on 4 March 2009 in a meeting with an undercover police officer [suppressed]. This officer used the name of Ryan and I will use that name to refer to him hereafter.
22 Ryan told the accused that information available to him was to the effect that the accused was suspected of some involvement in regard to a missing person. [suppressed]. The meeting with Ryan occurred over several hours and was in two parts.
23 Initially the accused showed considerable reluctance to provide any information. He then began to make admissions regarding the missing person:
A. Yeah, well I - it's true man and - and, um, this problem sprung up all from, um, drugs and - and the bikies - - -
Q. Yeah.
A. - - -and, um, - - -
Q. Yeah.
A. - - - this guy was fucking basically as far as I can gather was sent in to fucking fuck me up.
Q. To like do you over?
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- A. Fucking oath.
Q. What for - you - like over money or something like that or?
A. No.
…
A. I don't want to go - I don't want to go to gaol and have my beautiful little girl - I've got a little girl and she is dear to my heart and, um, my ex-misses I think has fucking mental problems and I know a lot of guys say that about chicks but I'm not a fucking - - -
…
A. Well like I - as far as I know it's like, um, I've got a - I've got to talk to the ex-misses and just, um, it's - but as far as I know, you know it's under the bikies, they've got connections to and that and, um, like I said this guy wasn't a nice person - wasn't a nice fucking person and I - we gave him the shirt off our back and yeah he was coming into, you know, they use all them sorts of - shit people to fucking, um, to do their shit jobs and, um, as far as I know yeah he, um, stayed, you know like camped in the back yard in his car because it was broken or something and then all of a sudden he wasn't there any more and, um, yeah we got a letter in the letter box saying it was his residential address and, um, I'm just thinking, you know it's like well, you know, if they're putting that - yeah I'm under suspicion.
…
A. It - it does you know. Ah, like I said Ryan I'm a fucking good person and - and this - this piece of scum come into my life and was going to fucking - probably already has hurt me and hurt my ex and, um, yeah and he - - - (Prosecution Brief 134, 135, 140)
24 Later in the meeting the accused told Ryan that he believed that this person gave what he described as 'hot shots'. He said that he had returned from working as a prawn fisherman to find the person staying at his home. He said he believed that the person had been sent to hurt him and that the person also did not treat him right. He then said, professing to speak hypothetically, that he could have hit the man and 'put him in smaller pieces'. He said that Ryan was the first person he had told this to and that he was concerned about one loose end which he described as 'a mechanical device', 'a saw'.
25 When asked by Ryan what he was worried about the accused said:
A. - - - I fucking - I, um, fuck mate I didn't want this to happen to my life in the sense right and it fucking happened and I fucking took it upon my - I just, um, I - this piece of - this - this fucking cunt was human fucking trash
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- mate and I'm a fucking proud man and fucking, I, um, - - - (Prosecution Brief 156).
26 The accused said that he could go and get the saw and when asked about other loose ends referred to his ex-partner but said that she did not know anything. When questioned further about this the accused said:
A. Well, she fucking if she knows - she doesn't know - she doesn't know what the picture is but she - she knew there was a frame.
Q. Yeah - yeah okay because you told her?
A. This guy was a piece of crap and he was coming in and I said I'm going fucking - I just said, um, you know I'm going to fucking - I'm going to hurt him (Prosecution Brief 159).
27 The accused said that he needed $600 in order to sort out one of the loose ends. This appears to have been a reference to the need to repay Mr Vidovic in order to obtain the saw. He was later provided with the $600 by another undercover police officer and made the telephone call to Mr Vidovic that day.
28 Later in the meeting with Ryan the accused described what had occurred:
… I was pushed into a corner and - and I come out fucking swinging in the sense, and like I say, you know, fucking this piece of shit was fucking, you know just - just disrespectful and you know I've got my beautiful little girl there and my ex there. I care about her fucking heart. You know I'd fucking walk through fire for them both and even though the ex doesn't love me, she knows I'm a good person and, um, she fucking - fucking, you know (Prosecution Brief 168).
29 A little later the accused told Ryan what he feared that the gang who was trying to get him would do:
… like I say mate these people are - they're scum and you know I - I brought this little girl into the world and, um, I've heard stories what they do to fucking kids mate. The kids grow up and they turn them into fucking scum bag junkies and prostitutes and all that.
Q. They didn't touch your daughter?
A. No.
Q. Yeah, but it's one of those sorts of?
A. No - no but that's what I've heard these people do.
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- Q. As in druggies or something - the - the - - -
A. The, um, they're - they're fucking bikes - - - (Prosecution Brief 170)
30 The first part of the meeting with Ryan finished at 1.25 pm. The accused then met with another undercover police operative who was using the name Ben, again I will adopt that name hereafter. Ben was the person with whom the accused had been associating over previous months and a relationship of trust had built up between them. Ben provided the accused with $600 which he said was from Ryan and to be used to assist in fixing a problem that the accused had. The accused then told Ben of the nature of his problem:
…yeah I fucking hit this guy and took him out in a sense and, um, fucking - fuck mate, I just had to do it in the sense of like, you know, it fucking just pains me to even fucking - it just headaches me man but, um, like I said man, this guy was just a creep, a fucking creep man.
BE Oh, I don't doubt it mate. I said to you - -
B And, um, I sort of you know - I had to do it for meself. Um, you know, I sort of put my own daughter's name in it but not really - you know, like these people are fucking hurting good people. They're not hurting fucking scumbags. They might be, might be scumbags to their, their fucking head but you know, no I was a fucking good guy and, um, yeah I might have, I might have had a little fuck up mate but, um, - - -
BE You're not a fucking scumbag mate.
B Oh, like I say, fucking I, um, um, yeah. Yeah. I just you know, I didn't want my life to fucking fall like this. You know and that's why I don't trust anyone fucking you know, because yeah (ts 3).
31 The accused told Ben that he needed to have a proper talk to Ms Lundberg although he did not believe that she knew anything. He then said:
Basically this guy he was just being a fucking oh, you know, just, just disgusting and just a yuck way of treating - you know, I knew what he was and, and, um, just how he was like, he fucking - yeah people like you are - you know, you're shit. This is - yeah and, um, I didn't tell her - oh, I told her I'm going to fucking - you know, I said I'm going to fucking kill the cunt which could mean a bashing you know. Go toe to toe with him or (indistinct) and I told her hey, don't come outside.
BE Did she go outside?
B Hey?
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- BE She didn't go outside? What happened outside?
B I fucking, um, basically fucking, fucking hurt him and hit him and hurt him and then fucking pulled him apart.
BE Pulled him apart?
B Yeah.
BE What do you mean?
B Fucking in to small pieces.
BE What, you chopped him up?
B Yeah.
BE That's a smart move.
B Yeah. Like I said Ben, you know, it's not like you know, - this cunt was yeah - he was - the worst thing is he's got friends and they're all fucking - they're all low lives. (indistinct). Like, you know I've heard some stories and it's like you know, they fucking they get the person's - you know, like, [his child] they get her when she's older and turn her in to a heroin addict prostitute. Shit like that you know (ts 5 - 7).
32 Between the two meetings with Ryan when in the company of Ben the accused had driven to business premises in Spearwood in an attempt to locate the chainsaw. He then requested to see Ryan again and on the drive back to that meeting made admissions to Ben that were not recorded. Ben's evidence in this regard was that the accused told him he had been standing behind Mr Petersen and had hit him on the back of the head with the blunt side of the axe. This officer was not cross-examined and his evidence in this regard was not challenged. However, subsequently, in his own evidence the accused denied that he had said any such thing and denied that he had hit Mr Petersen on the back of the head.
33 The second meeting with Ryan commenced at 4.15 pm. This occurred at the request of the accused on the basis that he now wished to provide Ryan with more details of the incident. He commenced by telling Ryan that some years earlier in South Australia he had felt let down after a friend who owed him $5,000 had refused to repay the money. He said that he was depressed following this and on an occasion that he was drunk and under the influence of drugs spoke to someone in a nightclub who he later came to believe was an 'out of uniform police officer'. He implied that he may have given some incriminating information about associates
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- to this police officer. He said that following this he was ridiculed and avoided by his former friends.
34 The accused also said that a man in New South Wales had told him about people who give 'hot shots'. He said that he believed Mr Petersen was one of these people. He said:
No, he was coming here I believe to fucking, um, - fucking give me some bad fucking shit and fucking later on I'm going to die.
Q. This is over here now.
A. Yeah.
Q. Righto. Did he come with you from South Australia?
A. No, no. Just sort of - just sort blended in with and all of a sudden I was away, I come back to it and he was drinking fucking cordial at our fucking dinner table and, um, basically, um, yeah he's just not a nice person you know. I can't say it any other way and, um, I fucking basically - I knew - I thought I knew what I knew in the sense and I fucking just cracked. I had all this pressure on me and mate I could not let this fuck head get in his car, drive away and in three or four years time, five years time, 10 years time I'm going to be lying on a hospital bed fucking dying looking at my little girl's eyes and I fucking - fucking hit him (Prosecution Brief 187 - 188).
35 The accused then described hitting Mr Petersen with the blunt end of an axe in his back yard. He referred to cutting the deceased into several pieces and burying the pieces. He said that he had burnt the axe and then thrown the head of the axe away. He said that he had chopped up the body on a wooden surface and that he had burnt that as well. He then said:
A. And, um, listen if I could live my life again I wouldn't have went that way but like I said this guy was fucking - you know, to me a piece of shit and like I said for me, thinking about laying on a fucking death bed with my fucking daughter holding my hand knowing that this cunt is still driving around in his fucked up car, I'm fucking glad that I've fucking done it.
Q. Can you just - like, I'm interested to know like, why? What you feel. So passionate about this dude.
A. It's got nothing to do with passion mate but like I said I'm a fucking big guy and if these people come in to my life and fucking basically spit in my face and fucking, I give them the shirt off my back and they wipe their arse on it and throw it at me, you know, I don't - I don't like it. Like I said, I'm a fucking, a good, fucking, honest person mate and when I've got to deal
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- with shit like that my fucking ex-missus, I'm trying to tell her hey these people, don't let them in, don't fucking have anything to do with them and she's telling me I'm a fucking idiot and you know, I'm trying to protect my loved ones in a fucked up way that I've got these people that are - like I said, he was a fucking scumbag, junky, fucking piece of shit fucking all the rest of it and I'm only passionate because fuck mate I'm a - you know, I'm a good - I'm a good fucking person. I'm reasonably honest. If you say to me help me mate, I'll fucking help you and this cunt was there to fuck my life up.
Q. Because you reckon he was there to give you a hot shot or - - -
A. Fucking oath.
Q. Because of this thing over in the eastern states where they reckon you were - - -
A. Yeah.
Q. - - - is that - yeah. And he [weaselled] his way in to - - -
A. Yeah, um, with my missus not like, fucking her or that but just like, you know, - - -
Q. Became yeah just friends or whatever.
A. Yeah (192 - 193).
36 The accused said he had buried the pieces of the body a distance away from his home in probably 10 holes at various depths. He said that he had thrown lime into the holes. He said that he had moved the pieces of the body in a car that he no longer owned but believed had been sold for scrap metal.
37 The accused said that everything had occurred very quickly and was then asked:
Q. Yeah. You just decided on it there and then you're going to sort him out or - - -
A. Basically like the story that's been told you know, I just - I could see it and I was just, um, - I was just stuck in - I just couldn't believe my life taking this direction and I had this piece of shit fucking that probably could have done what I said that he could have possibly done and, um, yeah and I sort of, um, basically just fucking - it's not like I just exploded but that's one way of putting it.
Q. There and then?
A. Sort of.
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- Q. Like, you're in the back garden or in the backyard or whatever and you've just - it hit you then.
A. I'm not saying it was totally pre-meditated no.
Q. What do you mean you're not saying it's totally?
A. Well it's not like I - - -
Q. Oh it's not like you fucking planned it for weeks or something.
A. I'd planned.
Q. Yeah, yeah.
A. Like I said, you know - - -
Q. but it had been playing on your mind a bit.
A. It was on my - it had been playing on my mind you know, this guy if I can, um, you know - if I could describe him a) he was a dirty, fucking piece of shit and you know - you know, like I said, you know, we were good people and to have this dirty, fucking piece of shit coming in my life and fucking may be you know, giving me a hot shot and get in his fucked up car and drive away in to the sunset you know, when I - when I - when I - when I say - I say what I mean and you know, these people don't you know. Don't know fucking - there was no respect and yeah I just fucking exploded.
Q. Couldn't you smack him off out of your house?
A. Yeah I could have and then 10 years down the track and know this cunt's fucking going and injecting someone else with his fucking poison (Prosecution Brief 205 - 206).
38 The accused was asked by Ryan how it came to be that he and Mr Petersen were at his property on the night of the incident:
Q. What was he doing in the fucking - like, how did you fucking get him out there at midnight?
A. Ah, it probably wasn't exactly midnight. You know by the time I finished it was fucking you know two hours in the morning.
Q. How'd you get him out there though? Like, you know what sort of - what did you tell him.
A. He's fucking - his fucking car ran out of petrol just up the road from my place and I was lucky that I was given fucking, um, - in my work I was given a fucking, um, hire car and I drove my car to the fucking - I drove - as I was driving in he was putting the bag of stuff and I don't know
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- what it was, stuff that the missus had leant him or something just hanging on the fucking front of our gate not coming in, knocking on the door, going thanks, thanks for this just fucking hanging it on our gate.
Q. So what was he hanging on it?
A. I don't know. I can't remember whether it be, um, - I just don't know whether it'd be fucking a shirt and just - - -
Q. Stuff that he borrowed.
A. - - - stuff that he borrowed you know. Nothing illegal you know. Nothing, um, - yeah just scampering away like a fucking - fucking mouse piece of shit and, um, - and I was just driving in just at that time and it's just like what's the go and he sort of said, um, he'd run out of petrol and then I fucking sort of just started fucking (indistinct) you know, like, get all your shit out of - get it all out of my property mate. You know, you're invited in here and what have you done, you've done fucking nothing and - and, um, he was just fucking not saying much and then - then it was all over.
Q. Okay.
A. And, ah, like I said, I'm not a fucking - I'm not a fucking bad person and this cunt was.
Q. Did you ever find - because he - you're saying he's bad mainly because he was going to give you the hot shot so you reckon, did you ever find out about it?
A. I didn't. He was a fucking compulsive liar and, um, - - - (Prosecution Brief 219 - 220).
39 The accused complained that Mr Petersen had not treated him with respect and recounted an incident when he said that Mr Petersen had thrown a block of chocolate at him on his birthday, saying words to the effect of 'don't say I don't give you anything'.
40 The accused was asked why it was he believed that Mr Petersen was going to give him a hot shot:
Q. Who told you he was going to give you the hot shot?
A. No-one necessarily told me but someone told me about these people and, um, - - -
Q. And did they like, point him out or?
A. They fucking described him to a T and he's just that way inclined. Like, when I first met him, ah, I can't do it but he would, um, - just he was
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- fucking nervous as, nervous as - as. And he would talk and spit at the same time just like you know, - it was like, a - something wrong with his fucking brain in a sense and like, yeah he was, um, with nerves you know and, um, - - - (Prosecution Brief 223).
41 The meeting with Ryan finally concluded at approximately 5.45 pm. The accused then went with Ben and another undercover police officer to try to identify the location where the body parts had been buried. During the course of this trip the accused said that he had stripped the body and burnt the clothes. He continued to refer to Mr Petersen in derogatory terms and as being a person who had been sent to hurt him. He did, however, appear to express some doubt in this regard at one point:
B Yeah. Well, you know, that's what I was saying to you, fucking (indistinct) and have these cunts drinking beer or all laughing fucking in another place, laughing about me, about me fucking up and I don't know you know, may be it's just in there to fucking suss me out man. May be I done the wrong thing (7 - 8)
42 The accused referred to a murder charge hanging over his head and to concerns about a police investigation.
43 The accused took the undercover officers to the area where he said he had buried the body parts. Whilst there he indicated to them how he had chopped up the body by making gestures. His indications in this regard accorded with marks on the bones that were subsequently recovered by the police.
44 Following these events the accused was arrested and interviewed by the police. Initially he denied any knowledge of the whereabouts of Mr Petersen. He was then confronted with the facts of the undercover operation and that his discussions with Ryan and Ben had been recorded. He then gave an account of the events which was largely similar to that that he had given to Ryan and Ben. He said that Mr Petersen was going to hurt us, being a reference to himself, Ms Lundberg and their child (who was unborn at that time). He referred to his belief that Mr Petersen was going to sell them a bad batch of drugs. He then said:
I exploded one day and fucking - nothing premeditated or fucking you know, no evil plan mate but this guy here I didn't really know him but I'd been told about him in the past man and he was a fucking, a bad person - - - (ts 43).
45 The accused admitted that he had hit Mr Petersen. He was then asked
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- Q. Were you angry?
A. Mate I - what - what do you expect you know when I live my fucking life, I work and then, um, I have this person come to my house and - and get mixed, you know and I - I tried to say don't let these people in your house and - and this guy come here and basically would treat me, you know would just basically spit and shit on the ground and, um, fucking man and I - I knew he was fucking a bad person. I'm not a fucking bad person mate but I'm - - - (ts 44).
46 A little later the accused further described his feelings of resentment towards Mr Petersen:
All it was like that we fucking gave him our, you know, the shirt off our back. Not - not like, um, coming to our house and - but you know, I don't know some cock and bull story. Just like this cock and bull story about bloody, um, helping out and all this crap, you know and this guy would just fucking basically walk all over us and fucking, you know speed off in his fucking car and just didn't really give a fuck mate and - and you know I'd say to the ex like fuck.
Q. What caused you to blow up on this particular occasion when you - when you hurt him?
A. Like I said man, you know like I said in this tape you know, I'm not going to fucking lower my fucking gaol cell now fucking dying because of this prick here and, um, have him out there fucking, happy do-dah-dah.
Q. Okay so what - what happened that caused you to get so angry that you hit him? What happened? It's your - your chance to speak, your side of the story.
A. Because I knew what he was (ts 46 - 47).
47 The accused referred to picking up 'some instrument' and then said that he had 'basically almost defended myself'. Asked to clarify what he meant when he said that Mr Petersen had been sent to hurt him he said that he had been told that people were sent to give shots of drugs that included powder from fluorescent lights and that if given too much of this it caused death. He was asked what triggered his explosion on that day and he referred to Mr Petersen attending at the Munster property to return a bag of borrowed items. He expressed the view that Mr Petersen did not have the decency to knock on the door and had hung the bag on the gate.
48 The accused said that he was not proud of what he had done and had not wanted his life to go like this. When asked to describe what he had done he said he had hit Mr Petersen hard with an instrument and that he
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- had dropped. He denied murdering Mr Petersen and said that he believed Mr Petersen had been there to kill him. He said:
… didn't know what to - I didn't know what to do, I - I you know it's like - and basically I'd fucking, you know, I - I never really, oh, I'm going to fucking - you know I wanted to punch him out, I - I didn't know it was going to go that fucking far (ts 59).
… she didn't know anything I was going to do and - and she, you know it's not like I premeditated it. I just - he was there at the back yard and I said to her go inside, you know if she - you know, that's it man and if you - if you charge her for anything mate that's just - that's the law fucking gone silly too man (ts 63).
50 He later referred to Ms Lundberg not being present when this 'horrible crime' was committed.
51 Later, he was asked whether Mr Petersen had been armed:
Q. Did he have any weapons when he came around?
A. I don't know.
Q. Did you see anything - do you recall seeing any weapons when he - when you two were talking or whatever happened out the back yard?
A. I - I don't know.
Q. Do you recall when you were out the back yard was it a verbal argument or was it a - a physical fight between you??
A. I - I don't know there was - there was, um, a verbal stuff and more or less me telling him, um, you know just like what the fuck are you doing (ts 72).
52 When asked whether he was scared of Mr Petersen the accused said that he guessed he was. When asked why, he referred again to threats that he perceived would come to him from a criminal group. When asked why he thought it was that Mr Petersen was going to harm him or his family the accused said it was 'just questions that he asked about where to buy drugs'. He said that he felt threatened and intimidated by what he believed could be done to him and his family.
53 At no point in the interview with the police or in discussions with the undercover officers did the accused say that on the night in question
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- Mr Petersen had been armed, or had made any threatening gestures or verbal threats. Though he did refer to self defence it was always in the context of an expressed belief by him that Mr Petersen could supply adulterated drugs at some time in the future to he and Ms Lundberg.
54 At the conclusion of the police interview the accused was charged and remanded in custody. On 7 March 2009 he agreed to attend with police officers with a view to identifying the site at which the body parts had been buried. Subsequent excavations by the police resulted in some, though not all, of the bones being located. In particular, the skull was not located and accordingly there was no independent forensic evidence as to the cause of death.
55 Whilst in custody awaiting trial the accused made telephone calls to his father and sister. These calls were recorded and a number of them were relied on by the prosecution. In a call to his father on 7 April 2009 the accused referred to the killing having occurred in self defence:
BM - - - Oh, it's, it's, yeah, it's - I never thought I'd - never thought it'd be like this, dad - - -
FATHER No.
BM - - - and, um, like I said, this person was a bad person - - -
FATHER Yeah.
BM - - - and it was sort of like self-defence. It wasn't like I fucking just - I'm, I'm a bad person, if you know what I mean.
FATHER Yeah.
BM They've, they've charged me for wilful murder and, um, I, um - yeah, I'm not pleading guilty 'cause I'm not, dad - - - (4)
56 In a subsequent call to his father made on the same day the accused referred to difficulties in his relationship with Ms Lundberg and, in particular, frustration that he felt in her befriending people that he considered used her:
BM And she's, you know, looking after my baby and, you know, like, I just used to see her get deceived - you know, because, yeah, we got into the fuckin' - some drugs and that, dad - - -
FATHER Yeah.
BM - - - and she gets deceived by people that, you know, think they're not her friends. You know what I'm saying?
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- FATHER Yeah.
BM I was her friend, dad, and, and, and - - -
FATHER Yeah.
BM - - - she gets used by these people who aren't her friends. All they care about is themselves (2, 3).
57 In a call to his sister on 21 April 2009 the accused again referred to self defence:
BM You know, like - but like I said, you know, it involves a fucking - fucking bikies and that meeting.
SISTER Shit.
BM Yes, you know what I'm saying.
SISTER Yes.
BM But, you know, like I said this cunt was a piece of shit, Kim, a fucking piece of shit, and it was self defence that's all the - fucking basically the truth of it.
SISTER Yes, and you've told your lawyer all this?
BM No, not yet, I've told him the rough ins and outs, but it's all going - it's got ages of time before we work on - you know, basically he's waiting in the sense for them to send their facts and their statements and then we can counter attack in that sense.
SISTER Yes.
BM But I've told the cops from the start the fucking truth (2).
58 In a further call to his sister on 25 April 2009 the accused again referred to self defence. He also implied that Mr Petersen had caused tension between him and Ms Lundberg:
BM You know? And she brought this cunt around here and, you know, yeah, we fucking bought fucking shit off him just - just 'cos of the fucking stupidity of everything.
SISTER Yeah, yeah.
BM And then later on I worked out who it was and I fucking - you know. It was self-defence in lots of ways, Kim.
SISTER Yeah.
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- BM But fucking what am I meant to do, man. This cunt was fucking disgusting. He was a piece of shit, you know. He'd basically come round and fucking kick sand in my face and basically befriend Nan and, yeah, he even said, you know - he tried to fucking set us up to have a tag team with Nan sort of thing and it's like, 'Fucking hell, mate,' you know?
SISTER Yeah.
BM You know what I mean? He just - he was a dumb cunt. He wasn't a smart fucking person and he'd just try and worm his way in there. All good for him kind of thing, you know? Just use and abuse and it's like, oh, fucking yeah, but that's - but that's the rough end of the stick (4).
Evidence of the accused
59 The accused elected to give evidence at the trial. He said that he had lived his earlier life in the Northern Territory before moving in 1996 to Port Lincoln in South Australia. Whilst living there he had met a person called Jamie McBain who had become a friend. McBain had moved back to New South Wales after a couple of years but stayed in contact with the accused. At some stage he invited the accused to travel to New South Wales for a holiday. This would have been some time in late 2000.
60 When the accused travelled to New South Wales he took with him a quantity of marijuana. He had been growing a few plants on the farm that he lived on. He stayed for approximately eight weeks in Sydney. One day whilst in company with McBain he met a person named Greg Jones. McBain later told him that Jones was a 'bad man' who used to work for an outlawed motorcycle club. McBain said that Jones would give people hot shots and kill them for the club. McBain said that he himself also had friends in an outlawed motorcycle club.
61 On a subsequent day whilst still in Sydney the accused went fishing with McBain. McBain said that Jones was a big heroin dealer. He said that Jones used hot shots to kill people and that this involved mixing drugs with powder from fluorescent light globes. McBain also referred to a substance that he called 'soup'. He said that this was a substance that was cooked up with amphetamines or ice and that it 'rots your guts out'. He was told that this would occur over a period of 10 years. McBain said that the same was the case with the fluorescent mix and that a victim would be given many doses of it, up to 10 or 20, and that it would slowly kill a person over a 10 year period.
62 The accused said that McBain told him that this method of killing people was used by the gangs on people who informed to the police or owe them money. He also referred to them killing people that they did
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- not like and killing child molesters. McBain said that victims were referred to as 'Ian' which was an acronym that stood for 'I am nonexistent'. McBain told the accused specific stories of people who had been made seriously ill by the use of this method. The accused said that McBain referred to other people, one being a man named Alan Blood. This man was said to kill people using a different method, namely he would get people drunk and then strangle them.
63 The accused said he had also been given a name of another person who worked for this group. McBain described him by the name of 'Stevo the tiler' and gave a physical description of this man to the accused. He said McBain told him that this man killed people. He said that years later he met Mr Petersen and that he fitted the description that had been given by McBain.
64 The accused said that McBain also referred to other people by name who he also subsequently met in Western Australia.
65 Two events happened which caused the accused to fear that he might be the subject of an attempt to kill him by the methods that had been discussed by McBain. One of those incidents occurred in Sydney. Whilst staying with a female friend of McBain's the accused had assisted one of her children in going to the toilet. Whilst he said nothing untoward had happened this incident later caused him to fear that the gang referred to by McBain may consider him to be a child molester.
66 The second incident related to the marijuana that the accused said he had taken to Sydney. This had been given to McBain in the expectation that McBain would pay him a couple of thousand dollars. On his return to South Australia the accused spoke to McBain on the telephone and was told that the money would not be paid. The accused went to a hotel that evening with a group of friends. He had a dispute with one of the friends regarding the ownership of a dog. He said he later talked to someone about what McBain had said to him and that the person turned out to be an out of uniform police officer. He said he could not recall what he had said that night but that he made a spectacle of himself, lost his composure and self respect and that thereafter people looked down their noses at him.
67 In early 2001 the accused said he met Nan-Marie Lundberg and they ended up living together. She was 10 years older than him with a daughter aged approximately 13. During this period the accused was receiving Centrelink benefits. He was asked to participate in the Work For The Dole programme and through that met a person called Jared.
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- Jared told him of an opportunity to do some cash-in-hand work. The accused agreed and when he attended the job discovered that the man in charge was the same Greg Jones who had been pointed out to him in Sydney by McBain. The accused said that he did not initially think it was the same person until an incident involving amphetamines.
68 On the third or fourth day of working he said that Jones provided him with a bag of white substance in lieu of pay. He said that Jones was insistent that the accused used the drug himself. He said he later injected some of the substance and that it did not produce the usual effect of amphetamines. He said that some days later he began to feel sick. The accused said that shortly after this he overheard Jones on the telephone apparently referring to him and his use of the drugs. The accused said that subsequently Jones attended the accused's home and offered him and Ms Lundberg some more amphetamines. He said that it was at this stage that he began to suspect that Jones was the person that McBain had described to him and that he had been given a 'hot shot'. He said that Jones left town shortly after this. Following this the accused said that he was very careful about injecting drugs and started to barricade his house with bars and chains.
69 Sometime later the accused said he met a person named Alan Blood in Port Lincoln. He said that the appearance of Alan Blood caused him to fear that the gangs were out to get him because of the night he had talked to an out of uniform police officer. He said that Blood was very friendly and would call in every couple of days. He said that on one occasion whilst drinking at a friend's house Blood had been present and offered him a lift home. He believed that this was a pretext to create an opportunity to kill him. He declined the offer and he said that Blood left Port Lincoln not long afterwards. His belief was that Blood left because he realised that Ms Lundberg was a friendly and good-natured person and that he could not go through with what he was planning.
70 In 2001 the accused, Ms Lundberg and her daughter moved to Western Australia. This was so that the daughter could spend time with her father who was living in this State. Then in late 2002 they moved to the property in Rockingham Road in Munster. Whilst living there an acquaintance mentioned a man by the name of 'Steve the Tiler' who was said to love his amphetamines. The accused said this rang bells and he said he definitely did not want this person to come around. Subsequently the female acquaintance and Steve turned up at the house saying that their car had broken down. The accused confirmed that Steve was the deceased and that this was the first time he met him. He said that Mr Petersen was
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- identical to the description that had been given by McBain in Sydney and that he was scared that it may be the same person. Mr Petersen subsequently began to visit on an occasional basis and the accused came to believe that he had been sent to kill him.
71 The accused said that later he and Nan Lundberg met Mr Petersen in Safety Bay and injected amphetamines together. He said that when he and Ms Lundberg were having their shots Mr Petersen turned away and that when he turned back he had moisture on his arm 'like he didn't inject it'. As a consequence of this the accused said he believed that Mr Petersen had given him a hot shot.
72 The accused confirmed that when he was referring to a hot shot he did not mean a forcible injection of an overdose of drugs but rather the supply of adulterated drugs that the person supplied would self inject. The accused said that thereafter he felt intense pain when lifting his feet off the ground and had a blister on his groin. He believed these were symptoms of having received a hot shot.
73 The accused said that he normally bought his amphetamines from other people but that he bought from Mr Petersen about six times. He said he believed that the occasion in Safety Bay was towards the first of those purchases. When asked why he continued to buy from him if he feared he had had a hot shot the accused said that on other occasions Mr Petersen injected drugs with them and did not turn around so the accused felt it was actually real amphetamines.
74 In about April or May the accused was offered work on a prawn trawler in Darwin. He agreed to do that work and was absent from about six to eight weeks. He rang Ms Lundberg once whilst he was away and was told that Mr Petersen had assisted in fixing a car. He said that he was scared that Mr Petersen was still there. He denied feeling any jealousy. The accused said that when he returned he was surprised to find Steven Petersen at the house. He said this caused him to be shocked and scared. He said he did not tell Ms Lundberg much of what he felt because he did not want to worry her. He said he did not initially do anything to get Mr Petersen out of the house but referred to being fearful and also to being irritated by conduct which he felt showed a lack of respect.
75 The accused was asked whether he had ever had any discussions with Mr Petersen about the motorcycle gang. He said that one night Mr Petersen said that he had done several jobs for them and that one involved a guy who had informed to the police. He said that one job
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- involved using a gun to intimidate a suspected informant. He said that Mr Petersen also mentioned about a child molester that was getting 'sorted out'. The accused said that he felt that this was a reference to him.
76 The accused said that one day Mr Petersen just moved out and started living somewhere else. The accused said that he believed that this was because Mr Petersen had already done his job by giving them a hot shot in Safety Bay. The accused agreed that he and Ms Lundberg had seen Mr Petersen subsequently going into a bank. He accepted that he could have said something like 'I could kill that bloke' or 'I could punch his head in' but denied having any intention to kill him.
77 Some weeks after Mr Petersen had left the house the accused said that he came home as it was getting dark to see Mr Petersen's van parked on the road down from the house. He then saw Mr Petersen walking away after putting a bag on the gate. He said that he wound down the window and asked 'What's happening mate? What's going on, what are you doing?' He said that Mr Petersen replied that Nan was not home so he thought he would hang the bag there. The accused said that the bag contained items that Ms Lundberg had loaned to Mr Petersen.
78 The accused said that Mr Petersen then said that his car had broken down and he was going to get some petrol. The accused then went inside and had something to eat. Sometime later he went out to get some milk and saw Mr Petersen at his car with a jerry can. This was about an hour after he had first seen him. The accused said he pulled over and said 'do you want a lift to the petrol station to get fuel for your car'. When asked why he made the offer of a lift in circumstances where he believed that Mr Petersen wished to kill him the accused said 'because it was time alone by ourselves and maybe that I could - maybe I could ask him about what my fear was'. He said that Mr Petersen agreed and got into the car.
79 The accused said that he wanted to find out whether Mr Petersen was from where he thought he was from, what he was doing and whether he had given a hot shot to he and Ms Lundberg. They drove to the service station where the accused got milk and Mr Petersen got fuel. The accused did not in fact ask him any questions about what he said was on his mind but did ask Mr Petersen what he intended to do with his property that was still at the house and in the shed. He said he asked Mr Petersen to get rid of the stuff.
80 On their return to the property the accused said that Mr Petersen went to the shed and started collecting his tools and that he followed him.
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- The accused said that he was in the doorway of the shed and said 'are you who I think you are, are you from this club?' He said that at this stage the accused had collected a bucket of tools and that he turned around with a hammer in his hand. He said that Mr Petersen flicked the hammer up and said 'you fuck with the wrong people boy, you're dead'. He demonstrated this in the witness box, showing a hammer held in the right hand and being raised quickly so that the head of the hammer was at approximately shoulder height and held vertically. He described the hammer as being a 'steel edge wing hammer'.
81 The accused said that he then picked up an axe that was by the entrance to the shed and swung it at Mr Petersen. He said that the blunt part hit Mr Petersen on the top front of the head. When asked what he was intending to do he said 'save my life or what's left of my life'. When asked the degree of force that he had used he said 'with my might'. He said that it was immediately apparent to him that Mr Petersen was dead. He did not wish to call the police because he was fearful that the gang had connections in the police. He therefore dragged Mr Petersen outside and used the chainsaw to dismember the body. He then placed the body parts in a bag and carried them to a property across the road where they were buried in between 10 to 12 holes. He said he then burnt the wooden pallet on which he had dismembered the body and also burnt Mr Petersen's clothes.
82 The accused said that he subsequently disposed of other clothes belonging to Mr Petersen by placing them into a charity bin. He said that he got rid of Mr Petersen's van by driving it to a location near the Cockburn Yacht Club. He denied saying anything to Ms Lundberg about what he had done.
83 He subsequently met other people who appeared to him to fit descriptions that he said had previously been given to him in Sydney by Jamie McBain and this served to continue his belief that attempts were being made to kill him.
84 The accused was asked why he had told the undercover officers that he had used a car to transport the body parts and had put lime into the holes. [suppressed].
85 In cross-examination the accused was asked why he told the undercover officers that on the night of the killing he had told Ms Lundberg not to go outside if this was not true. It was suggested that to draw attention to Ms Lundberg in this way was inconsistent with his
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- professed desire to protect her. He denied that Ms Lundberg knew anything but could provide no explanation for what he had said to the undercover officers. He denied being truthful to the undercover officers about all of the details notwithstanding that at that point he was seeking their assistance to tie up loose ends.
86 The accused accepted that he said nothing to Ryan about being confronted by Mr Petersen with a hammer. When asked why, he said that Ryan was previously unknown to him and he did not expect to have to tell him what happened in intricate detail.
87 It was put to the accused that Ben's evidence that he had said that he had struck Mr Petersen on the back of the head from behind had not been challenged. He said that he was shocked when he heard this evidence but that he had never been through this experience (that is, a trial) and did not know what to think in regard to whether it should be corrected.
88 The accused was asked about his interview with Dr Brett, one of the psychiatrists retained by his solicitors. It was put to him that he had told Dr Brett that he hit Mr Petersen from behind. He said he did not think that he would have said such a thing because it was not true. When asked about whether he had told Dr Brett about the hammer he said that he did not know if he did or did not say that. He could give no reason for why he would not say that to Dr Brett. He also conceded that he did not tell Ryan that Mr Petersen had made a threat to him whilst holding the hammer, nor did he say this to the police who interviewed him.
89 In the interview with the police when asked whether Mr Petersen had had a weapon the accused had responded that he did not know. He accepted in cross-examination that the hammer he had described in his evidence was a weapon. When asked to explain his answer in the interview he said that he was just tired and sick of it. He accepted however, that he had an opportunity to tell the police about the hammer and did not do so.
90 The accused was also asked about the telephone calls that he had made from prison whilst on remand, to his father and sister. In those telephone calls he referred to acting in self defence but did not mention being confronted by Mr Petersen with a hammer. He said his reason for this was that he had been told not to say much on the telephone.
91 In cross-examination it was put to the accused that it was at his instigation that Mr Petersen had come back to the house to remove his things on the night he was killed:
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- Mr McDonald, Mr Petersen had moved out of your property, correct?---Yes.
You hadn't seen him for how long?---Two - two, three weeks or something.
Right. And on this occasion, he comes and leaves something at your gate?---Yep.
And is walking away, correct?---Yep.
And the only reason he comes to be back on your property is because you've asked him to come and take his tools away. Is that the case?---I had - I did ask him to get rid of his stuff. 'Please get rid of your stuff' (ts 324 - 325).
92 The accused accepted that the shed in which he said he struck Mr Petersen was a small cramped area. He also accepted that the roof of the shed was sloped with the lowest part being over the entrance. He agreed that there was no artificial light in the shed but said that he was able to see by virtue of light from a full moon. He said he raised the hammer and struck Mr Petersen to the top front of the head whilst they were about a metre apart. He said that Mr Petersen did not lunge forward or take a swing at him. It was put to the accused that in these circumstances it would have been difficult for him to have raised and swung the axe and hit Mr Petersen, who was taller than the accused, with sufficient force to kill him. The accused said that Mr Petersen may have ducked or moved to the side but maintained that he hit him.
93 When asked about the verbal exchange immediately preceding the striking the accused gave details which were additional to those he had provided in evidence-in chief:
Well, tell us again. What did he say?---I said - I said, 'Are you connected to these bike gangs?'
So when you asked him, 'What are you doing?' Did he answer that question?---He turned around.
He turned around when you asked him, 'What are you doing?' Is that the case?---He said, 'You fucked with the wrong people. You're going to die.'
Yes, just take it a step at a time?---That is a step.
When you asked him, 'What are you doing?' Did he answer that question?---He said, 'You're fucking with the wrong people.'
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- Well, when was it that you mentioned bikies?---I said after it, 'What are you doing?' It all happened in a - in a - in a fraction of a second. I - it went so quick. I was - I was saying, 'What are you doing? You don't - you offer no respect. You lie, you cheat, you steal, you - you lied to Nan. She's helped you out. She's lent you clothes. You can't even - you can't even return them properly.'
So you said all those things, did you?---Along those lines.
Right. Have you just remembered some of those things?---They just come out.
What do you mean, they just come out?---Well, when I - when I was trying to ask Steven Petersen, 'What - what are you really doing, mate? What - what has been your real target here?' It's very hard to ask a - a - a person connected to the underground, 'Excuse me - excuse me, kind sir, are you actually here to kill me? Are you here to kill me and maybe my girlfriend?'
All I'm interested in, Mr McDonald, is what you actually said. Now, did you say to him all of those things about lying and stealing and so on?---I said the majority of those things (ts 325 - 326).
94 The accused was asked in cross-examination whether he knew that what he had done was wrong:
You knew that what you had done was wrong - - -?---Of course.
- - - that night, didn't you?---It is wrong. That's - I feel terrible. What am I meant to do?
And what you then proceeded to do, Mr McDonald, was to cover up what you had done, wasn't it?---I don't know why I done. I don't know why I done it.
Well, that's the only reason that you did it, wasn't it?---I - I don't know. I don't know (ts 330).
95 He also accepted that when speaking to the undercover officers he expressed a fear of going to gaol for what he had done. He said in cross-examination that he wished he had never done it and that he felt terrible about doing it.
Psychiatric evidence
96 The defence called two psychiatrists who had assessed the accused since he was arrested and whilst being remanded in custody. Those psychiatrists, Dr Adam Brett and Dr Paul Skerritt, were both of the opinion that the accused was suffering a paranoid delusional disorder and
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- that this disorder had been present at the time of the killing. However, the two psychiatrists had different views as to the effect of this disorder upon the accused's capacity to understand and control his actions. Furthermore, whilst it appeared to be readily apparent that the delusion described by the psychiatrists was still present and active given his evidence at the trial, they were both of the view that he was fit to plead and stand trial.
97 Dr Brett interviewed the accused on 24 September and 16 November 2009. He was provided with a copy of the police statement of facts, a DVD of the record of interview, the prosecution brief and criminal records. In his account of the incident to Dr Brett the accused referred to 'exploding' and referred to his belief that he was the subject of long term problems of being poisoned through contaminated drugs. He expressed a belief that Mr Petersen had been poisoning him and wanted to harm him. He told Dr Brett that Mr Petersen had been living at his property and that there had been some conflict in that regard and the accused had wanted Mr Petersen to leave. However, as far as Dr Brett could ascertain there had been no acute problem between the accused and Mr Petersen at the time of the killing. When asked what he actually did to the victim the accused told Dr Brett that he hit Mr Petersen on the back of the head with an axe or a sledge hammer. He said that there was one blow to the back of the head.
98 Dr Brett's opinion was that the accused was suffering a psychotic disorder and, in particular, a paranoid delusional disorder. He said that a paranoid delusional disorder was one in which false beliefs were held with extreme vigour and were not able to be argued with rationally. He said that these beliefs were the thoughts about people wanting to kill him by giving him a hot shot and that this related to bikie gangs. Dr Brett said that the accused referred to various people he had met over the years who played a part in these attempts against his life but gave no names. Dr Brett said he was strengthened in his diagnosis by the information from Ms Lundberg that the accused had engaged in behaviour of bolting and locking doors over a 10 year period. Dr Brett said he was very confident that the accused had the disorder at the time of the events in question. Dr Brett was then asked what effect the disorder would have on the accused:
And to what extent that might have affected his behaviour at the time in question?---It would have affected his behaviour in - in the same way as anyone's thoughts affect their behaviour. So he genuinely thought what he was believing was true and acted because of that.
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- In your view what - what - what were his held beliefs at the time?---His general views were that the victim were wanting - was wanting to do him and his family harm.
And on the night in question?---I believe he still thought that (ts 411).
99 Dr Brett was asked about the capacities referred to in s 27 of the Criminal Code and gave the following evidence:
Was his state of mental impairment such as to deprive him of the capacity to understand what he was doing at the time?---Sorry. No, he wasn't deprived of that capacity in my opinion.
In terms of understanding it, can you tell us what you mean by that?---Yes, understanding the physical act of what he did, that is killing the man.
What would you say as to whether it may have deprived him of the capacity to control his actions in killing the deceased?---Again I don't believe he was deprived of that capacity.
What do you say to the proposition that he might have been deprived of the capacity to know that he ought not to do the act?---No, I don't believe he was deprived of that capacity.
When we say ought not to do the act, you answered this question in relation to whether he knew it was against the law or whether he knew he was wrong to do it morally?---The moral wrongness of the act.
You think he had the capacity to know that?---Yes.
At the time in question?---Yes (ts 412 - 413).
100 Dr Brett was then asked whether in his opinion the accused was affected by delusions at the time of the killing:
… would you agree that at the time of the events in the question, that is the time that he killed the deceased as we know he accepts that he did that his mind may have been affected by delusions?---Yes.
Are you able to say on what specific matters he may have been deluded?---Specifically about the victim and that the victim had previously or in the future was aiming to kill him with a hot shot.
All right. Now, are you able to say whether or not that was a genuinely held belief as at the time in question?---Yes, I do believe that he genuinely believed that (ts 413).
101 A little later Dr Brett was asked:
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- … Doctor given that he did have this impairment, and on your evidence, genuinely believed that the victim was trying to kill him, can you explain to us why you say that he had the capacity to understand that his actions were wrong?---Yes. It's - it's a - it's a very complicated area. People who are delusional can still have rational thought, albeit based around their delusions. And from my perspective, the issue related to him having chronic long term beliefs about having been poisoned by adulterated amphetamines, but on my examinations he didn't describe any acute concerns about the individual.
All right. Did he at any stage express what he did in terms of self-defence?---No, he didn't describe any self-defence.
But he did indicate to you that he felt that he was in danger?---Yes.
On what basis then, did he say that he killed the victim?---Well, again, he - he - he told me that he was - felt chronically in danger and that he had previously been given a hotshot, but he didn't feel acutely threatened on the night of the offence (ts 415).
102 Dr Brett also confirmed that in his view the accused not only had the capacity to know that what he was doing was wrong morally but also legally. He was also of the belief that the accused not only had such a capacity but did in fact know at the time that what he was doing was wrong.
103 It is to be noted that in terms of the issue of self defence Dr Brett's evidence was that the accused said nothing to him about the victim wielding a hammer or making any threatening statements. In cross-examination Dr Brett said that one of the main factors that he took into account in coming to his conclusion that the accused knew at the time that what he had done was wrong were his efforts to dispose of the body. Dr Brett confirmed that people who have delusional disorders are quite capable of forming intentions to achieve particular outcomes and of forming plans. Dr Brett said that the accused did not describe any acute fear of Mr Petersen. By this he meant that the accused did not describe that he was fearful for his life at the time of the incident. He believed that he had been given a hot shot that was a chronic method of killing someone by injecting poison which would rot them from the insides out over a long period of time.
104 Dr Brett described the disorder as one that could incorporate new events and people over time. He said in that regard:
Does someone with paranoid - or is - is someone with paranoid delusional disorder more prone, as a result of that condition, to reconstruct events, or construct events that are fictional around their delusional disorder? In
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- other words, if - if somebody comes into their lives for instance, are they more likely to involve that person into their delusional belief system?---Yes. I - I just want to clarify. The - the word 'fictional' is one which I would avoid. Because I think the person completely believes what's happening. But it's - it's very common for people to incorporate other people in their delusions and other occurrences in their delusions. So there's quite a common feature in delusional disorders called delusions of reference where specific events, they believe, have some specific significance for them. But it also - other people can be incorporated into their delusional system and it can shift from one person to another. And my understanding is that occurred with Mr McDonald.
In what way?---With his jobs, he had to leave jobs because people looked at him funny or funny things happened. He described events in one of the eastern states where people who he would - he'd be doing some job experience with he believed had been sent over from the bikie gangs to somehow spy on him or - or do him harm in some way. So it appeared that he's incorporated different people into his delusional system (ts 422 - 423).
105 Dr Skerritt interviewed the accused for the purpose of making an assessment on 28 May 2010. He had the same material available to him as Dr Brett. Dr Skerritt concluded that the accused was suffering from a very serious mental illness, variously named as paranoid psychosis or delusional disorder. He said that such a disorder was characterised by a set of false beliefs in a very complicated interlocking variety. Dr Skerritt said that in his view at the time of the killing the accused was acting entirely on those delusions and that this deprived him of the capacity to know that what he was doing was wrong.
106 Dr Skerritt said that the accused had described to him a belief that Mr Petersen had given him what he described as a hot shot. Dr Skerritt noted that this term did not have its usual meaning of being forcibly injected with a substance that was likely to be fatal or harmful. As described by the accused it involved the provision of a substance that would 'rot a person's insides and make them live with a colostomy for the rest of their lives so that there was long term suffering'. However, Dr Skerritt formed the view that the accused was in fear of being actually killed by the victim rather than hot shotted and crippled. Dr Skerritt was of the view that these beliefs were genuinely held as it would be very hard for anyone to make up such a complicated delusional system.
107 Dr Skerritt said that he carefully recorded what the accused told him regarding exactly what had occurred on the night in question. The accused had said that he ordered Mr Petersen out of the house and that this involved Mr Petersen picking up his tools. The accused had found
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- himself outside the house with Mr Petersen holding a hammer. The accused expressed a firm belief that Mr Petersen was about to hit him with the hammer and kill him. He also feared that after Mr Petersen had killed him he would go inside the house and kill his girlfriend Nan who was pregnant with his child at the time. The accused expressed the view that he had no option but to hit Mr Petersen before he was hit thus saving not only his own life but that of his girlfriend and the unborn child. The accused had expressed the view that a defence of self defence was more appropriate than one of insanity because he really believed that he was defending himself.
108 At this point I asked Dr Skerritt whether what the accused had described to him regarding Mr Petersen threatening him with a hammer and making a verbal threat was, in his view, a true memory or a product of his delusional condition:
Did you form a view when he told you that, as to whether what he was recounting about the hammer and the threat made to him, whether he was recounting something that was true or was an expression of his delusion?---No. It - it - well, I was - I was firmly of the view that that was an expression of his delusion that he was about to be killed. And it - it's not - it's not always easy to work out whether something was really true. But, you know, whether a tiler would have been sent from Sydney as a hit man to kill both him and his pregnant girlfriend, it seemed to me that the likelihood is that it wasn't true and that it represented his delusion.
I suppose what I'm asking you is this delusional condition, does it only manifest itself in beliefs as to other people's motives or can it also manifest itself in memories about what people did that may in fact not be true memories?---Well, that's not - not part of the typical description of a delusional disorder. It simply refers to false beliefs.
Yes?---And there are a couple criteria that added to the fact of the beliefs being false. And it - it is - it is necessary to make that judgment. There is a distinction between bizarre delusions and non bizarre delusions where bizarre delusions are things that anybody would immediately recognise as not being true, such as little green men in the backyard. But where it does refer to transactions between people, which is commonly the case with persecutory delusions, one has to make the judgment whether it's likely to be true. And in fact I - I put to him, as - as one does, you know, why on earth would anybody go to this incredible trouble and expense to have him followed around the country when he's an ordinary sort of a bloke and he really couldn't answer that. He couldn't say, well, it wasn't very likely that somebody would spend what must have been millions of dollars to have conducted the persecution that he - he believed. So I - I have no doubts about the - the longer term history of the delusions as he described what
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- happened on that day in a way that convinced me that that was part of the whole system (ts 429).
109 Dr Skerritt was asked whether the method of disposing of the body was significant. He said that in his view it was not relevant to the mental illness. Dr Skerritt asked the accused about that and was told that it was just a quick and convenient way of getting rid of a body. It did not seem to Dr Skerritt that this was a particularly delusional belief. Dr Skerritt said that a person can have a very complicated delusional system about being persecuted but many other aspects of his life may proceed normally such as working and conducting relationships. He said that in his view, a person who found himself in that position might have decided on that course of action regardless of any illness. With respect to Dr Skerritt, this answer did not address the question that was put. The question was not whether the manner of disposal was indicative of mental illness but rather whether, mentally ill or not, it shows that the accused had an appreciation of the wrongfulness of what he had done.
110 Dr Skerritt was asked his conclusions in regard to capacity within the context of s 27 of the Criminal Code:
For the purposes of the legislation were you able to form any conclusion as to whether or not the - the mental illness was such as to be likely to deprive him of the capacity to know that what he was doing at the time was something he ought not to do?---Yes. He believed that he had no option at the time in accordance with his delusional beliefs and so from his point of view what he was doing was quite right and proper.
So are you saying that it transcended just knowing - not knowing that it was against the law or that it was wrong in a moral sense?---No. He - he believed it was quite right in a moral sense (ts 431).
143 Section 1(1) of the Criminal Code defines mental impairment as including mental illness and that term is itself defined as follows:
The term 'mental illness' means an underlying pathological infirmity of the mind, whether of short or long duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary stimuli.
144 Every person is presumed to be of sound mind and to have been of sound mind at any time which comes in question until the contrary is proved: s 26 Criminal Code. Accordingly, the accused has the burden of proving insanity and the standard of proof is the balance of probabilities: R v Porter [1933] HCA 1; (1933) 55 CLR 182.
145 As to what is meant by a capacity to know that a person ought not to do an act, Dixon J said in R v Porter at (189 - 190):
We are dealing with one particular thing, the act of killing, the act of killing at a particular time a particular individual. We are not dealing with right or wrong in the abstract. The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by 'wrong'? What is meant by wrong is wrong having regard to the everyday standards of reasonable people.
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146 His Honour went on to say that what is meant by incapacity in these contexts was 'not that he reasoned wrongly, or that being a responsible person he had queer or unsound ideas, but that he was quite incapable of taking into account the considerations which go to make right or wrong'.
147 In Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358 the High Court held that there was no requirement that an accused know that the act is wrong in the sense of contrary to law. What is required is that the accused know right from wrong, good from evil, not legality from illegality. However, the High Court observed:
The truth perhaps is that, from a practical point of view, it [can] often matter a great deal whether the capacity of the accused person is measured by his ability to understand the difference between right or wrong according to reasonable standards, or to understand what is punishable by law, because in serious things the two ideas are not easily separable. But in certain cases, where the insane motives of the accused arise from complete incapacity to reason as to what is right or wrong … he may yet have at the back of his mind an awareness that the act he proposes to do is punishable by law (375).
148 The High Court also held in Stapleton that the capacity which must be found to be lacking is not merely a capacity to appreciate in some abstract sense that others would view the act as wrong. Rather it is a capacity of the particular accused either to discern the difference between moral good and evil or to think rationally of the reasons which would lead ordinary people to consider the act to be right or wrong: Evans v The State of Western Australia [2010] WASCA 34 [60] (Wheeler JA).
149 In Hone v The State of Western Australia [2007] WASCA 283 the Court of Appeal considered the significance of uncontradicted expert psychiatric opinion where the issue of insanity has been raised by an accused. Miller JA said at [124] - [125]:
Neither a jury nor a judge sitting alone are bound to accept and act upon expert evidence. But where there is no evidence to contradict that evidence, a verdict cannot be given contrary to it. The principles were well summed up by Roden J in Hall (1988) 36 A Crim R 368, where a number of relevant cases were reviewed. Roden J said:
'Juries are not bound to accept and act upon expert evidence. Nevertheless they are not entitled to disregard it capriciously. These two propositions have found expression and support in a line of authorities developed in England with regard to the defences of insanity and diminished responsibility.'
In Rivett (1950) 34 Cr App R 87, Lord Goddard CJ, said (at 94):
- 'The second matter for emphasis is that it is for the jury and not for medical men of whatever eminence to determine the issue. Unless and until Parliament ordains that this question is to be determined by a panel of medical men, it is to a jury, after a proper direction by a judge, that by the law of this country the decision is to be entrusted.'
- The Court of Criminal Appeal was there dealing with medical evidence relating to a defence of insanity.
Eight years later, when dealing with a defence of diminished responsibility, Lord Goddard showed the other side of the coin, in Matheson [1958] I WLR 474; 42 Cr App R 145, saying (at 478; 151):
'While it has often been emphasised, and we would repeat that the decision in these cases, as in those in which insanity is pleaded, is for the jury and not for doctors, the verdict must be founded on evidence. If there are facts which would entitle a jury to reject or differ from the opinions of the medical men, this court would not, and indeed could not, disturb their verdict, but if the doctors' evidence is unchallenged and there is no other on this issue, a verdict contrary to their opinion would not be "a true verdict in accordance with the evidence",'
In Bailey (1977) 66 Cr App R 31, another diminished responsibility case, Lord Parker CJ said (at 32):
'The court has said on many occasions that of course juries are not bound by what the medical witnesses say, but at the same time they must act on evidence, and if there is nothing before them, no facts and no circumstances shown before them which throw doubt on the medical evidence, then that is all that they are left with, and the jury, in those circumstances, must accept it.'
In both Matheson and Bailey, manslaughter verdicts were substituted for jury verdicts of guilty of murder, on the basis that the medical evidence was 'all one way', and there was no other material which would justify its rejection. It was otherwise in Walton [1978] AC 788; 66 Cr App R 25. The Privy Council was there considering a murder conviction where a diminished responsibility defence had been rejected. In the judgment, which was delivered by Lord Keith of Kinkel, there are observations that 'the jury were entitled to regard (the medical evidence) as not entirely convincing', and 'their Lordships have come to be of opinion that in all the circumstances the jury were entitled not to accept as conclusive the expression of opinion by Dr Bannister'. After a consideration of both Matheson and Bailey, the following statement of principle was made:
'These cases make clear that upon an issue of diminished responsibility the jury are entitled and indeed bound to consider not only the medical evidence but the evidence upon the whole facts
- and circumstances of the case. These include the nature of the killing, the conduct of the defendant before, at the time of and after it and any history of mental abnormality. It being recognised that the jury on occasion may properly refuse to accept medical evidence, it follows that they must be entitled to consider the quality and weight of that evidence.'
- The effect of those decisions is accurately summarised in Professor Smith's commentary on Walton in [1977) Crim LR 747 at 748:
'If the medical evidence is all one way and in favour of the accused and there is nothing in the facts and surrounding circumstances which could lead to a contrary conclusion, then a verdict against the medical evidence cannot be sustained. In the present case there were facts and circumstances in addition to the medical evidence and the jury was therefore entitled to reject that evidence'. (370 - 371)
Allen J summarised the position as follows:
There is no rule of law that a verdict of guilty will be quashed as unsafe in any case in which the verdict is inconsistent with medical evidence called for the accused - even where no medical evidence has been called for the Crown. On the other hand there is no rule of law that an appellate court will not quash such a verdict - refusing to do so because it is open to a jury to reject the opinion of any expert witness. Each case is unique. The totality of the evidence must be weighed: Walton (1978] AC 788; 66 Cr App R 25. In assessing medical evidence a multitude of factors must be taken into account - including the standing of the expert, whether he expresses his opinion with conviction or with hedging, whether the opinion expressed in its nature seems reasonable or fanciful, whether it incorporates assumptions not founded upon the evidence given, and whether the evidence given, upon which the opinion is based, is to be believed. It is clearly settled that it can be unreasonable for a jury to reject medical testimony: Walton; Chester (1982] Qd R 252; 5 A Crim R 296. (380 - 381)
150 In the same case Steytler P referred to other cases where notwithstanding psychiatric evidence of incapacity there had been a conviction. However, in such cases there was invariably a basis upon which the psychiatric evidence could be properly discounted. For example in R v Matusevich [1976] VR 470 the presence of a strong and sane motive for the killing and premeditation explained the jury's refusal to act upon uncontradicted psychiatric evidence.
151 Of course in any case it is not sufficient to merely establish that the accused had a mental illness at the time of the alleged offence, it is the degree and effect of that illness upon the relevant capacities that is
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- important. In Hone Steytler P referred to the case of the R v Michaux (1984) 2 Qd R 159, a case involved with a medical practitioner who was convicted of offences of administering stupefying drugs and sexually assaulting a number of his patients. Steytler P said at [6]:
There was no doubt, in Michaux, that the appellant had suffered from a mental disease at the relevant times. However, the evidence given by the experts on the question whether his mental state had deprived him of capacity to control his actions, or of capacity to know right from wrong, was equivocal. Further, on the appeal, the court considered that the jury was entitled to have regard to the appellant's course of conduct in denying the earlier attack and making exculpatory attacks on some of the complainants. It could treat these as being indicative of a guilty mind and one that was aware that the acts in question were legally and morally wrong. Connolly J (with whose reasons Campbell CJ & McPherson J agreed) said (164):
'The principles which are applicable to a situation such as this are not, I think, in doubt. Where there is unchallenged medical evidence of facts which would bring an accused person within the provisions of s 304A of the Criminal Code and there is no evidence to cast doubt on the medical opinions, a verdict which fails to give effect to those facts will not be supported by the evidence and will be set aside and the lesser verdict substituted: R v Dick [1966] Qd R 301; R v Matheson [1958] 1 WLR 474; R v Chester [1982] Qd R 252. The same conclusion obviously follows when the facts would bring the accused within s 27: Taylor v The Queen … However, it is otherwise where there is evidence which casts doubt on the medical opinions. Such evidence may go to the factual basis assumed for the purposes of the medical opinions as in R v Wallace [1982] Qd R 265. Again it may be that the behaviour of the prisoner himself is such as to cast such a doubt. Cf Walton v The Queen [1978] AC 788, 793. And, of course, the jury is amply entitled to scrutinize the medical evidence itself for qualifications, concessions, and reservations. As their Lordships observed in Walton v The Queen … :
"It being recognised that the jury on occasion may properly refuse to accept medical evidence, it follows that they must be entitled to consider the quality and weight of that evidence".'
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- this regard the High Court (Dixon CJ, McTiernan, Fullaghar, Menzies and Windeyer JJ) said at (663):
The reasoning upon which the cross-examination was based was, of course, the kind of reasoning which a sane mind would pursue, while it is apparent from the reading of the transcript of the evidence that the reasoning of the witnesses was based on the belief or assumption which they adopted that the prisoner's mind was not a sane mind and accordingly would be governed by quite different beliefs and perceptions, and a different consciousness and understanding of the things that would be significant to the sane. In cases of this kind it may well happen that expert witnesses accepting the hypothesis that a prisoner is insane are not on the same ground as counsel adopting the opposite hypothesis and arguing according to the common sense of ordinary men supplied by the experience of sane persons.
154 As I have pointed out earlier, the basis upon which Dr Skerritt reached his view was that the accused had a belief that his actions were justified in self defence based upon his belief that Mr Petersen was threatening him with a hammer. In that regard I have come to the conclusion earlier that the only reasonable inference is that this detail is a recent invention. By that I mean that not only is it not factually true but that it did not form part of the accused's delusions at the relevant time, that is, the night of the killing. It is not necessary to go so far as to say that this is a deliberate fabrication on the part of the accused, even if he has an honest belief in this regard because it has been incorporated into his delusions. It is clear that it has done so only very recently and was not part of his delusional beliefs at the time. For this reason it is my view that the basis upon which Dr Skerritt formed his opinion, that is the information provided to him by the accused, is flawed.
155 It would seem that the accused's belief that he was being threatened with a hammer and that therefore his actions were in self defence was critical to Dr Skerritt's conclusion that he did not have the capacity to understand that he ought not to do what he did. In any event, with respect to Dr Skerritt, his opinion seems to be one directed more to the second
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- paragraph of s 27 namely delusional beliefs which if true may affect the culpability of the accused.
156 In the circumstances, to the extent of the inconsistency between Dr Brett and Dr Skerritt, I prefer the evidence of Dr Brett. In my view that evidence is also supported by the accused's action in disposing of the body, his keeping secret of what he had done, his reluctance to reveal it to others, his apparent fear of police investigation and his desire to obtain the assistance of the undercover operatives. Accordingly, I am not satisfied on the balance of probabilities that the accused lacked any of the capacities referred to in the first paragraph of s 27. That is, I am not satisfied that he lacked the capacity to understand what he was doing, control his actions or know that he ought not to do the act.
157 As regards the second paragraph of s 27 there have been some suggestions that this provision is unnecessary and that there are no circumstances that would arise in which a person would be excused under this paragraph where they would not be found to lack one of the capacities in the first paragraph. However, the possibility that a person, otherwise sane, may have a delusion that another person poses a threat to them such that they would be justified in acting in self defence was considered as long ago as in M'Naghten's Case (1843) 8 ER 718. In that case the judges of Queens Bench had been requested to provide their opinions to the House of Lords, the House then having under consideration amendments to the laws in respect of insanity. One of the questions put to the judges was 'if a person under an insane delusion as to existing facts commits an offence in consequence thereof is he thereby excused?' To this question Lord Tindal CJ said:
… the answer must of course depend on the nature of the delusion: but, making the same assumption as we did before, namely, that he labours under such partial delusion only, and he is not in other respects insane, we think he must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were real. For example, if under the influence of his delusion he supposes another man to be in the act of attempting to take away his life, and he kills that man, as he supposes in self defence, he would be exempt from punishment. If his delusion was that the deceased had inflicted a serious injury to his character and fortune, and he killed him in revenge for such supposed injury, he would be liable for punishment.
158 The issue of self defence arising because of a delusional belief that another person poses a threat also arose in the case of R v Walsh (1991) 60 A Crim R 419 (and see also Garrett v The Queen [1999] WASCA 169 [79] (Murray J). In Walsh Slicer J gave directions to the jury in respect of
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- a provision of the Tasmanian Criminal Code which is similar to the second paragraph of s 27(2). Those directions were in the following terms:
A person whose mind is affected by a delusion on some specific matter, but who is not excused of responsibility by virtue of insanity, is criminally responsible for the act to the same extent as if the fact which he was induced by such delusion to believe to exist really existed.
The Crown, in this situation, must prove beyond reasonable doubt that he was not justified in the using of such force as he did.
Intention
160 The elements of the offence of wilful murder are firstly that there must be a killing. That is not in dispute in this case and the evidence establishes that fact beyond reasonable doubt. There is no question that the accused killed Mr Petersen, he admits to doing so. Further, the killing must be unlawful and s 268 of the Criminal Code provides that it is unlawful to kill any person unless such killing is authorised or justified or excused by law. I have already dealt with the questions of self defence and insanity. Accordingly, this killing was clearly unlawful. The remaining question is what intention the accused had at the time he killed Mr Petersen.
161 Dr Skerritt was in no doubt that the accused intended to kill Mr Petersen at the time he struck him. This was, however, on the assumed basis that he believed he was acting in self defence. However,
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- even on the basis of the delusion as described by Dr Brett, whilst not excusing the accused conduct that delusion or belief provided powerful reasons for the accused to wish to kill Mr Petersen.
162 The accused's statement to Ms Lundberg, and I accept her evidence in this regard, that she would no longer have to worry about Mr Petersen, supports an inference that the accused wished to kill Mr Petersen so that he would pose no future threat to either her or his own wellbeing, as he perceived it. His earlier statement to Ms Lundberg that he could kill Mr Petersen made in an angry tone some short time before the killing and the method of his disposal of the body also supports such an inference. It is also relevant to note that the accused referred to this statement when speaking to the undercover operative in terms which indicated that he knew it would likely be interpreted as an expression of intent.
163 I am conscious that the prosecution must satisfy me beyond reasonable doubt that the only inference reasonably open to me is that the accused intended to kill Mr Petersen: Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573. I take into account the accused's evidence that he killed Mr Petersen with a single blow to the head. However, on any view that blow must have been delivered with such significant force that it caused immediate death. The accused said that things happened very quickly, that he was in no doubt that Mr Petersen had immediately died and he dismembered the body a very short time thereafter.
164 I also take into account that independently of his delusional beliefs about Mr Petersen, the accused expressed strong antipathy towards him both at the time and subsequently. This antipathy related to his view that Mr Petersen had failed to show respect to he and Ms Lundberg by abusing their hospitality. This included expressions of concern on the accused's part that Ms Lundberg spent time in long conversations with Mr Petersen and invited him to stay in their home whilst the accused was away. In a context where the relationship between the accused and Ms Lundberg had deteriorated and they were no longer sharing a bedroom, there must be some possibility that the accused had feelings of resentment or jealousy towards Mr Petersen. He denied any such suggestion, but Ms Lundberg said in evidence that she had the impression that he was jealous. It is unnecessary to make any finding in this regard other than to say that this is not a case devoid of the possibility of a sane and rational motive for the accused wanting to kill the deceased.
165 In my view on all of the evidence there is only one rational conclusion open and that is that on the night in question the accused killed
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- Mr Petersen with a blow from an axe to the back of the head and that at that time he intended to kill Mr Petersen.
166 In closing submissions defence counsel also raised the possibility of provocation. This was on the basis of the former s 281 of the Criminal Code that provided that a person who unlawfully kills another in circumstances that would constitute wilful murder but who does the act which causes death in the heat of passion caused by sudden provocation and before there is time for his passion to cool is guilty of manslaughter. The sudden provocation relied upon in this case was said to be the wielding of the hammer and the threats as described by the accused in his evidence. However, since I have already reached the conclusion that those events neither happened nor were part of the delusion at the relevant time there is no basis for provocation to be claimed. Accordingly, I am satisfied beyond reasonable doubt that provocation is not open.
167 For these reasons I find the accused guilty of the wilful murder of Steven David Petersen.
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