The State of Western Australia v Schmidt [No 4]
[2014] WASC 192
•29 MAY 2014
THE STATE OF WESTERN AUSTRALIA -v- SCHMIDT [No 4] [2014] WASC 192
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 192 | |
| Case No: | INS:208/2011 | 19 - 26 MAY 2014 | |
| Coram: | McKECHNIE J | 29/05/14 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Accused not guilty of murder Guilty manslaughter | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA STEFAN PAHIA SCHMIDT |
Catchwords: | Criminal law Trial by judge alone No new principles |
Legislation: | Criminal Code (WA), s 279(1)(b) |
Case References: | Dodd v The State of Western Australia [2014] WASCA 13 R v Wilmott [No 2] (1985) 2 Qd R 413 Schmidt v The State of Western Australia [No 3] [2014] WASC 156 Turner v The Queen [2004] WASCA 127 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Prosecution
AND
STEFAN PAHIA SCHMIDT
Accused
Catchwords:
Criminal law - Trial by judge alone - No new principles
Legislation:
Criminal Code (WA), s 279(1)(b)
Result:
Accused not guilty of murder
Guilty manslaughter
Category: B
Representation:
Counsel:
Prosecution : Mr B Fiannaca SC & Mr M Nicol
Accused : Mr C L Lovitt QC, Mr S B Watters & Mr M J Ayoub
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
Accused : M J Ayoub & Co
Case(s) referred to in judgment(s):
Dodd v The State of Western Australia [2014] WASCA 13
R v Wilmott [No 2] (1985) 2 Qd R 413
Schmidt v The State of Western Australia [No 3] [2014] WASC 156
Turner v The Queen [2004] WASCA 127
- McKECHNIE J:
How this matter comes to court
1 Stefan Pahia Schmidt is charged that on 9 May 2011 at Perth he murdered Andrew Kirk Marshall. The alternative offence is manslaughter; that on 9 May 2011 at Perth the accused unlawfully killed Andrew Kirk Marshall.
2 This is a retrial, the Court of Appeal having so ordered.
3 On 11 April 2014 Jenkins J ordered that the accused be tried by a judge sitting without jury: Schmidt v The State of Western Australia [No 3] [2014] WASC 156.
4 On arraignment the accused said:
I would like to plead not guilty to murder, but guilty to manslaughter (ts 1129).
5 The prosecution did not accept that plea in satisfaction of the indictment. The plea of guilty to manslaughter was noted. The trial commenced on 19 May 2014 and proceeded to 26 May 2014.
6 Western Australian law provides for alternative modes of trial for indictable offences: Criminal Procedure Act 2004 (WA). Neither mode is superior. They are just different. The inscrutability of a verdict by a jury is tempered by the need for unanimity. The verdict of a judge sitting alone is tempered by the need to give detailed reasons for a verdict.
7 Therefore, I have taken time to consider the evidence and prepare my reasons.
Fundamental legal principles
8 There are three fundamental legal principles that apply to this case, as indeed they do to all criminal trials. They are:
1. The presumption of innocence.
2. The burden of proof.
3. The standard of proof.
1. The presumption of innocence
9 There is a legal presumption that the accused is innocent of the charge of murder. That presumption continues to apply throughout the trial and my deliberation, ceasing only if displaced by proof of guilt beyond reasonable doubt. The presumption does not apply to the offence of manslaughter. By his plea the accused has admitted that he is guilty of that offence.
2. The burden of proof
10 The second principle flows from the first. At all times the onus is on the prosecution to prove the case of murder. This onus never shifts to the accused for the simple reason that his innocence is presumed. The accused gave evidence. By doing so he has not assumed any burden of proof. His testimony becomes part of the evidence I have considered in concluding whether the prosecution has discharged its burden.
3. The standard of proof
11 In order to sustain a verdict of guilty and negate the presumption of innocence, the prosecution must prove its case beyond reasonable doubt. Any less standard of proof is insufficient to find the accused guilty of the count of murder. If I am not satisfied beyond reasonable doubt that the only inference available is one of the accused's guilt, then the prosecution has failed to discharge the high standard of proof necessary to sustain a conviction. A conviction can only be sustained if there is no reasonable doubt about the accused's guilt.
12 I have applied these principles to the facts which I have found.
The elements of the crime of murder
13 The prosecution case was brought under s 279(1)(b) of the Criminal Code (WA) which reads relevantly:
(1) If a person unlawfully kills another person and -
…
(b) The person intends to cause a bodily injury of such a nature as to endanger, or be likely to endanger the life of the person killed …
the person is guilty of murder.
14 By his plea of guilty to manslaughter, the accused accepts that he unlawfully caused the death of the deceased Andrew Kirk Marshall. No issue therefore arises pursuant to the Criminal Code s 23. The accused accepts that the death was not an accident and that it was the result of a willed act.
What is in issue
15 The only issue is whether the State can establish beyond reasonable doubt that at the time the accused did the acts which unlawfully caused death, he did so with an intent to cause a bodily injury of such a nature as to endanger or be likely to endanger the life of the deceased. Hereafter when referring to the accused's intention, this is the intention to which I refer.
16 There is no issue that the formulation by Connolly J in R v Wilmott [No 2] (1985) 2 Qd R 413 is appropriate. Connolly J held:
The mental element which must be proved when a case of murder goes to the jury under s 302(1) is intention to cause death or to do grievous bodily harm. The ordinary and natural meaning of the word 'intends' is 'to mean, to have in mind'. Relevant definitions of The Shorter English Oxford Dictionary show that what is involved is the directing of the mind, having a purpose or design.
Facts proved beyond reasonable doubt
17 For the most part these facts are relatively uncontroversial. To the extent in issue, they are facts I find proven beyond reasonable doubt.
18 The Ocean Beach Hotel (OBH) overlooks the Indian Ocean and is situated on the corner of Eric Street and Marine Parade, Cottesloe. It has a bar area on the ground floor and another bar area on the first floor (exhibit 1). Entrance to the upper bar area is through a lobby.
19 In 1979 the OBH was renovated. Eight large glass windows were installed on the upper level providing views for nearly 180º. Having regard to the coastal region, the Australian Standard then and now specified that the glass must be 4 mm thick. Mr Quinliven, the licensee, required glass 6 mm thick. The panel through which the deceased was pushed was 5.65 mm thick.
20 Two panes installed in 1979 were safety glass, a fact unknown to Mr Quinliven. Tests on the remaining windows conducted by Dr James showed the kinetic energy necessary to fracture the glass. It is reasonable to suppose that the window broken by the deceased's fall exhibited similar qualities and the energy required to break the glass was about 50 joules.
21 On Sunday, 8 May 2011, a band was playing between 6.00 pm and 10.00 pm in the upper bar. There was an unofficial dance area immediately in front of the band and a designated dance area next to the bar. Leading from the designated dance area was a door into toilets, male and female. Tables and chairs had been placed around the room by Mr Allsop, the bar manager, some adjacent to the windows. Mr Marshall was in the upper bar. There is no evidence or suggestion that Mr Marshall did anything whatever to cause or contribute to his death. He was an innocent party. I will refer to him now as the deceased.
22 Ms Amanda Barnes and her brother Mr Joseph Barnes with their friend Melissa went to the OBH that evening and at the time of the event were in the upstairs bar. They had been dancing together and had gone to the toilet before going back onto the dance floor. The deceased passed them on the way to the toilet and may have spoken briefly to Mr Barnes or Ms Barnes.
23 Mr Sylva was a security officer on duty who was called to the upstairs area at some time probably around 8.45 pm, although the exact time is immaterial. He remained upstairs and witnessed the event.
24 Mr Banning was at the upper bar with friends. He witnessed the event. Mr Nagle and Mr Dennis were also in the upper bar.
25 The accused had spent Mother's Day relaxing. During the course of the day he consumed two ecstasy tablets, some marijuana and some alcohol. At the hotel he drank some beer. Shortly prior to the event he had switched to water. I mention the accused's consumption of alcohol and substances only for completeness. The accused does not suggest that he lacked capacity to form an intent either partially or completely due to this consumption. I therefore put it out of account in assessing his intention. Nor did it contribute to his intention, only perhaps to his anger.
26 The accused arrived with a group of people in private cars and taxis. In the group was the accused's close friend, Mr Paki (also known to the accused as Woods) and two women. One was Woods' sister, Stella, and the other Woods' girlfriend, Leilah. The accused regarded Stella as if she was his own sister and had protective feelings towards her.
27 At the time the accused had formed a relationship with a young woman in New South Wales. She was due to visit Perth in a couple of weeks. In the meantime the couple had phone contact. Her name was ordered to be suppressed in earlier proceedings so I shall refer to her as 'Ms X'.
28 Shortly after 8.00 pm (WST) the accused talked on the phone with Ms X for a little over half an hour. The accused was in a good mood at the conclusion of that phone call describing himself as happy, and shortly thereafter went into the upper bar. In the upper bar a friend of his, Luke Power, said he fancied Stella. The accused took exception to this and thought it was completely inappropriate. Power apologised.
29 Almost immediately Woods became aware of Power's expressed interest in Stella and rapidly a verbal altercation between Woods and the accused developed.
30 The dispute started next to the bar but soon moved to the lobby out of camera view.
31 During the period out of camera view, the accused's shoulders and head became wet with liquid of some sort, possibly water.
32 No blows were exchanged. The two then left the lobby and were out of camera view for a short time by the bar before the accused walked over to where Stella and Leilah were sitting by a window smoking a cigarette. By this stage the deceased, having recently exited the toilet, was close to and was apparently talking to them.
33 The accused walked up to the three. He was overheard by Ms Barnes yelling 'You should go home'. Shortly thereafter the accused pushed the deceased with sufficient force to propel him backwards into one of the plate glass windows which shattered. Whether the deceased tried to regain his balance or not is in the event immaterial as he was unable to do so and fell to the pavement in a cascade of shards of glass where he sustained injuries from which he shortly died. This all happened very quickly.
34 Immediately following this event, the accused walked out of the upper bar. On the way he veered slightly off route to Mr Nagle whom he forcibly hit without provocation.
35 The accused walked from the OBH into Eric Street. The deceased was lying immobile and people were already tending to him. After glancing in the deceased's direction, the accused walked away and later took a taxi to his home where he took some steps to hide by leaving his mobile phones and making a call from a pay phone.
36 During the course of the journey home the accused sent and received a number of SMS messages.
37 The next day he spoke with Ms X. After the services of a lawyer were obtained, he surrendered to police later that day.
The evidence and witnesses
38 An important aspect of the prosecution case was CCTV footage from three cameras both inside and outside the OBH which captured vision leading up to the event, the breaking of the window and the consequent fall by the deceased onto the pavement 5.7 metres below.
39 The actual push by the accused to the deceased occurred out of camera view. For this there are three eyewitness accounts, Mr Sylva, Mr Banning and the accused. Mr Barnes' view was obscured by the accused though he saw the accused's shoulders move.
40 The CCTV footage largely confirms accounts of witnesses, and the accused as to what occurred prior to and after the event.
A view
41 At the request of the parties, I undertook a view of the Eric Street pavement outside the OBH and of the upper bar, including the lobby. The view assisted me in understanding distances shown on the plan. It also assisted in looking at the CCTV footage from elevated cameras.
The witnesses
Amanda Elaine Barnes
42 She is now 24 and a teacher. There is no reason to doubt her honesty and truthfulness. At times her evidence suffered from difficulty of recall, understandable after three years. Clearly she is still affected by the event and became emotional in court when describing how she walked over to the window and looked out to see the deceased on the pavement.
43 In three years she had not read her 17 page statement made on the night but accepts that her statement was true.
44 During the course of evidence her memory was refreshed by aspects of that statement and she readily acknowledged that the statement was true when she was unable to remember a specific matter. Apart from her vagueness as to some detail, I regard her evidence as reliable and indeed it was not challenged in any material way by Mr Lovitt.
45 She did not describe the accused as looking overly angry. She definitely heard him say, 'You should go home'. The band was playing and it was 'necessary to speak kind of loudly, but not too loudly'.
Mark Jeffery Sylva
46 Mr Sylva is a security officer who was on duty on 8 May 2011 until the bar closed at 10.00 pm. This witness came under sustained attack from Mr Lovitt as to his honesty and credibility. I completely reject the attack on his honesty. I formed the impression that Mr Sylva was honestly trying to recall the events as well as he could. He was to a degree combative in cross-examination but I viewed this largely as a response to confrontational propositions being put to him. That said, I have less confidence in the reliability of Mr Sylva's evidence. He made an extensive statement after the event when interviewed by police officers. His description where he was standing at the time of the push was quite wrong.
47 Mr Sylva's description of the accused's arrival in a silver BMW is at odds with that of the accused whose evidence I prefer on this point.
48 Much of the cross-examination about earlier statements and evidence led at the first trial was repetitive and, with respect, of limited utility.
49 Mr Sylva's evidence-in-chief was not substantially different from the accused's as to what he did and the way he pushed the deceased.
50 Mr Sylva described the accused as having grabbed the deceased on the shoulder turning him around so they were face to face. Previously the deceased had been sitting or leaning on the edge of a table. The accused denied such a motion (which Mr Banning did not report) and I am not persuaded it happened. Mr Sylva described the push as a double-handed forceful push (ts 1212). This is consistent with Mr Banning's observation but different from the accused's account of one push. I deal with this later.
Dean William Banning
51 Mr Banning is aged 24 and a parachute rigger in the Australian Army. He described his alcohol consumption as having had 'too much to drive by that point but, I was not unaffected'. He was tall (six foot four inches) and able to see the actual push. He described it as a two hand push, which pushed the deceased straight back.
52 Mr Lovitt criticised Mr Banning's inability to notice other things. He was pretty sure there were tables there. He was unable to describe the girls or whether the man pushed was seated or standing. He did not notice any women. Mr Lovitt described the force of the hit as follows, 'had [he] not hit something, he would have fallen over'. The witness agreed (ts 1336).
53 I have taken account of Mr Lovitt's criticisms in dealing with this aspect later.
Joseph Keith Barnes
54 Mr Barnes is aged 23 and is Amanda Barnes' brother. As he was driving he only had three drinks. He and Ms Barnes' evidence is slightly at odds as to whether the deceased spoke to them, each suggesting the deceased had spoken to the other (Amanda Barnes ts 1180; Joseph Barnes ts 1343). I regard this difference as immaterial and does not affect their credibility or reliability. Mr Barnes described the interchange between the accused and the deceased:
[The deceased] walked up to the group. It looked like that he was having a heated discussion with the victim.
I think it was the body gestures.
He stood in front of [the victim].
[H]e was facing the window.
His shoulders moving in a jerking motion (ts 1345 - 1346).
55 Mr Barnes could not see the accused's arms, just the shoulders moving forward and the glass breaking. He estimated the deceased was like 30 cms from the window. Pretty close.
56 In cross-examination he agreed that the women were definitely standing. The deceased had his back to the window. Mr Barnes did not see the accused grab the deceased or turn him around or lift him up. He described the movement as a push.
Ms X
57 Ms X is a 31-year-old hairdresser living in New South Wales who had been in a relationship with the accused for about six weeks at the time of the event. She was in rural New South Wales on 8 May 2011 when she took part in an exchange of telephone calls and texts. Soon after she recorded the notes and times.
58 Nothing of significance occurred in the phone call shortly prior to the event. It explains why the accused was happy at the end of it. The next phone call she received was at 11.05 pm (WST) on 8 May 2011:
Stefan just said to me that something bad had happened and he would call me the next day (ts 1459).
59 On 9 May 2011 there was a phone call between them at 12.56 pm (WST) for a little over five minutes. She described the call:
It was fairly emotional. Stefan just said – I asked what was going on and he explained to me that something bad had happened and he had pushed someone at the OBH and they had fallen through a window and died and it was, obviously, a fairly emotional phone call after that.
…
Well, there was pauses and then I asked, 'What the hell had happened?' and he explained in a roundabout way that something had happened and his brother was winding him up and it didn't really make sense at the time because it was – because – yes, anyway. Yes, that's – and then he just – yes, I just asked what had happened and he explained that – what I said and yes.
… Well, he said that something bad had happened and he had pushed someone, so, yes. And he said what I already said.
Right. All right. So that he had pushed someone and that – sorry. And anything else? Did he say what had happened?---That that person had fallen through the window and died (ts 1460).
60 The accused told her the brother he was referring to was Woods. He said he had to go to the police station and then he was going to be on remand and the lawyer was coming and he had to go (ts 1461). Both of them were emotional during the call.
61 Mr Lovitt accepted that Ms X was entirely truthful.
62 The prosecution submitted that this call was significant because the accused failed to tell Ms X that he did not mean to push the deceased through the window. However, he also did not tell Ms X that he did mean to push the deceased through the window. In the context of an emotional phone call and the circumstances in which it occurred, I am not prepared to make any adverse findings against the accused in respect of any such failure.
Dr Judith McCreath
63 Dr McCreath gave evidence as to the cause of death as head and chest injuries. In fact death is admitted by the accused:
On the morning of 9 May 2011 at Perth, Andrew Kirk Marshall died from injuries sustained on 8 May 2011 at approximately 9 pm as a result of a fall from a second floor window of the Ocean Beach Hotel in Cottesloe after being pushed by the Accused.
64 Through Dr McCreath a number of photographs of the deceased's body showing significant lacerations were tendered. Had the lacerations been the only injuries caused to the deceased then a question might arise as to whether the act of pushing a person through a window was accompanied with the requisite intent. But where the window is on an upper floor, the consequences, if a person adverted to them, were obvious as the accused himself concedes. Knowledge of consequences is an indicator of intention but not, at least under the Criminal Code, conclusive of it.
Dr Ralph James
65 Dr James is an experimental physicist who conducted tests on the remaining windows at the OBH in order to explain the force and energy necessary to break the window. He explained that force alone applied in the experiments was unable to break the window but kinetic energy of around 50 joules generated through movement caused the window to shatter.
66 His conclusion was:
[We] came to the conclusion that, for a 150 kilogram person, even just standing there pushing someone away could easily give a 90 kilogram person enough kinetic energy, and, if that was transferred to the window, it could break the window (ts 1433).
Matters in controversy and my conclusions
67 As I have remarked, much of the evidence is not in issue. The accused, appears to be an intelligent and articulate person, and gave evidence about events in a way generally consistent with the accounts given by prosecution witnesses. I deal with the major issues in controversy either because of a direct conflict on the evidence, or inferences to be drawn from proved facts. Of course consistently with what I have set out as the fundamental principles, an inference adverse to the accused can be drawn from the facts only if no other inference is reasonably open on those facts.
A push with one hand or two
68 Mr Sylva and Mr Banning both described a forcible push with two hands. Mr Barnes' view of the front of the accused was obscured as the accused had his back to him but he describes a movement of the shoulders consistent with the two-handed push. The accused denies that he used two hands to push the deceased and says that he only used his left hand.
69 Mr Banning is six foot four inches tall. He was in line for the bar and able to see across the room. The only matter of significance he describes is the push. He was unable to describe seeing the girls or any other aspect of the deceased or the arrangement of the tables. This has an impact on the reliability of his evidence.
70 Mr Sylva also described a two-handed forcible push (ts 1212). I have already commented that I am cautious as to Mr Sylva's reliability.
71 There are no other witnesses relied on by the prosecution as to the push. The prosecution, correctly, submitted that the evidence of Mr Ignatov is unsafe and I should not rely on it.
72 If a two-handed push was a crucial matter of fact, I could not be satisfied beyond reasonable doubt that the accused pushed with both hands. However, I do not regard it as a crucial fact bearing on the accused's intention.
73 The accused was a big strong man who could bench press significant weights and had done so recently at the gym, bench pressing roughly 200 kg and 300 kg squats. He was, as events showed, more than capable of pushing the deceased with sufficient force using one hand to cause the window to break and the deceased to go through it. The use of one or two hands is not in any way dispositive of the accused's intention. Having regard to his weight and strength, use of either one or two hands can give rise to an inference of intent.
Post offence conduct
74 The prosecution relies on the accused's post offence conduct to infer his intent at the time of the event.
75 The accused's conduct in the hours following the event is one of the circumstances to which the prosecution point as evidence from which I can conclude that the accused had the requisite intention. In order to be used the post offence conduct must constitute an implied admission against interest and is to be considered together with the other evidence. The principles are conveniently set out in Dodd v The State of Western Australia [2014] WASCA 13 [95] and following (Buss JA) (Newnes JA agreeing). I apply these principles.
76 The post offence conduct arises from a combination of the following:
• the accused's actions in striking Mr Nagle;
• the accused's actions in having glanced towards the deceased, then leaving the scene;
• an SMS reply to Ms X at 9.13.34 pm (WST);
• two SMS responses at 9.15.32 pm and 9.18.49 pm (WST) to an SMS from Woods at 9.14.30 pm (WST);
• the accused secreting himself away for a period following the event.
77 Some dispute arose between the parties as to the circumstances of the accused's surrender to police and the degree to which the accused had instigated the arrangement by which the surrender came about. I advised the parties that neither version was of much assistance to me in determining the central question of the case.
The assault on Mr Nagle
78 Mr Nagle was not called to give evidence but his statement was read by consent. On 8 May 2011 he was with his partner at the OBH having arrived about 6.30 pm. At some point he and his partner went to the upper bar. He was drunk but not overly, about six on a scale of one to ten:
I was standing on my own when I heard a loud bang. The sound was like breaking glass and came from behind me (ts 1521).
79 He noted he saw that one of the outside windows had broken:
I noticed maybe a handful of people in that direction, but my attention was drawn to one man walking toward me. I initially thought he had thrown a chair through the window. I noticed everyones' attention was drawn to the window except this man who was walking away.
… I would best describe him as storming past. By that I mean he was walking fast but not running. He looked very focused and angry. I don't believe he was coming at me but going to the stairs which were behind me. He didn't have to go around me to get past but he came quite close.
I said words to the effect of, 'Chill out', or 'Calm down.' He wasn't even looking at me at that stage. He didn't say a word. He just raised his right hand in a fist and hit me in the jaw to the left side of my face. It didn't knock me unconscious but I fell on the floor. By the time I got to my feet he was about halfway between me and the exit stairs which were about 15 metres away (ts 1521 - 1522).
80 Mr Dennis was also in the upper bar at the time of the event. He heard breaking glass and turned to see, 'A fairly large guy with water splashed over his shirt walking quickly away from that direction' (ts 1410).
[H]e walked pretty much straight past me and pushed and punched the gentleman I was talking to [Mr Nagle] and then
…
Punched him and pushed him to the floor.
…
As the large guy walked past, he asked the smaller guy what he was looking at.
Do you recall the tone of voice that the larger guy used?---It was aggressive.
What was about it that gave you that impression?---It was loud, it was pretty much shouted at him.
Did you have the chance to see anything about the larger man’s demeanour at that point?---He looked pissed off (ts 1411).
81 In cross-examination the witness had no recollection that Mr Nagle said, 'chill out' or 'calm down'. He said:
[I] distinctly remember the larger guy saying, 'What are you looking at?'
Yes. Right?---Or words to that effect (ts 1417).
82 Mr Banning gave evidence that the accused walked off back towards the exit:
[t]he fellow that stood in front of me – I don’t know what they said to each other – but he, like, punched him and punched him to the ground, and kept walking.
…
[H]e was definitely angry (ts 1326).
83 Mr Banning later qualified his description of anger somewhat. He said the accused's expression was not calm:
I mean, he – if he wasn’t angry, why would he push someone through a window or hitting someone to the ground? (ts 1337).
84 It may be that the accused did utter the words 'what are you looking at?' which he denied but it is unnecessary to determine.
85 The evidence does establish that the accused was angry and determined to leave the premises, if necessary doing violence along the way.
The accused's action - walking away from the deceased
86 The accused's actions in walking away from the deceased were undoubtedly callous. However, I cannot discount the accused's explanation that he was worried about the response of hotel patrons towards him.
The SMS response to Ms X
87 Shortly after the 30 minute conversation Ms X sent an SMS to the accused at 9.06.14 pm (WST):
Oi, is ther any chance I could get a pic pleeeeaaasssseee pretty please!!
88 As it turns out, although of course unknown to Ms X, the event had occurred by this time.
89 Shortly after the event at 9.13.34 pm (WST) the accused responded:
Sure thing [smiley face].
The accused's response to Woods
90 Woods sent an SMS to the accused at 9.14.30 pm (WST). This SMS should be put in context.
91 Shortly prior to the event Woods and the accused had the altercation I have referred to. This appeared to end with their making up and the accused giving Woods a kiss either on the head or the cheek. Immediately after the event, on his way towards the exit there was a period of some seconds when the accused was out of camera view following which he walked through the lobby. Two things then happened. First, Woods stood in the door with his arms wide open and, secondly, Odie appeared to impede the accused and was pushed out of the way. It is an obvious inference which I draw that the accused spoke with Woods during the period. There is no evidence what they spoke about.
92 The SMS from Woods:
I fuckin love u, my moko (ts 1711).
93 This SMS provoked two responses by the accused about three minutes apart. At 9.15.32 pm (WST):
Fuck you never again will you doubt me!!!!!!!
94 At 9.18.49 pm (WST):
We never will be the same again the last time you ever try play the alpha male don't ever contact me again I'm dead to you!!!!!!!!
95 The accused was cross-examined about these SMS texts. I consider the accused's answers in cross-examination on this subject were evasive and probably untrue.
96 But the difficulty using the post offence conduct relied upon by the prosecution as part of the circumstances from which intention can be inferred is that there is an alternative view reasonably open which cannot be excluded. That remains so even when considered in conjunction with other and direct evidence. The accused knew he had just committed a very serious offence. He had pushed someone out of an upper window. It was highly likely that the person would be severely injured. His actions in punching Mr Nagle in anger and in walking away from where the deceased was lying are equally consistent with consciousness that he had committed a serious offence other than murder.
97 The SMS response to Ms X is not necessarily conduct indicative of guilt but rather conduct tending to show that even if he was confused and bewildered, he was capable of thought and action, albeit displaying heartlessness.
98 While the SMS responses to Woods are capable of bearing an inference beyond consciousness as to guilt of a crime to consciousness as to guilt of murder, this depends on acceptance of the central prosecution theory that the accused had gone to the girls in response to a challenge from Woods to prove his loyalty to Woods (ts 1593). The accused did agree that Woods was challenging his loyalty (ts 1582) but denied he acted in response by pushing the deceased.
99 The SMS responses are consistent with a man who remains very angry at Woods and at what he, himself, has just done consequent upon the earlier altercation which caused his anger. At the least, I cannot exclude this reasonable possibility.
100 Overlaying all is the fact that the accused well knew he had committed a serious offence. It would be unsafe to use the post offence conduct in combination with the other evidence, to reason that the accused acted with the specific intention required.
Anger
101 The effect of anger on the formation of intention can cut both ways as Wheeler JA reminds us in Turner v The Queen [2004] WASCA 127:
The interaction of the emotion of anger with an accused person's formation of an intent is not an easy one to articulate. It was submitted to us by the appellant's counsel that, in the words of the headnote to Cutter v The Queen (1997) 143 ALR 498 in this case, as in that: 'The circumstances … could not exclude the possibility that [the deceased] was stabbed in anger and with aggression but not with an intent to take his life'. The submission, at times, appeared to verge on the proposition that anger and aggression were emotions which precluded the formation of an intention to kill. That obviously is not the case. Anger and aggression may well be emotions which lead to the formation of such an intention.
The process of forming an intention is a mental process involving the capacity to reason and to understand what the consequences of an action may be. Anger is an emotion, a state of feeling rather than a state of mind. Indeed, Wylde's Dictionary (Wylde Universal Dictionary of the English Language, London) defines emotion in one of its uses as 'any of the feelings, contrasted with the mental processes of reasoning' (emphasis supplied).
However, it is common experience that there may on occasion be an interaction between states of emotion or feeling, and the ability to reason or the process of reasoning, particularly when emotions are very heightened. In this case, for example, it would have been open to the jury to consider the possibility that the appellant was in such a state of anger at the time that he stabbed the deceased, that although he lashed out at her intending to harm her, he did not stop to contemplate with any degree of precision what harm would or might flow from the attack which he launched. In that sense, the appellant's anger would have been a matter which the jury could consider, and it was wrong for his Honour to direct them as he did that, as a matter of law, it did not affect the issue of guilt [18] - [20].
102 I have no doubt that the accused was angry at the time he pushed the deceased. Although he had been happy at the time of the phone call with Ms X just a short time before, his interaction with Woods had left him in his own words, 'frustrated'. Whilst cautious of reading too much into observations about facial expressions and the like, his action in talking loudly to the women (more loudly than was necessary to be heard over the band), assaulting the deceased, assaulting Mr Nagle, and his text messages, all portray a very angry man who found an outlet for his anger in two assaults within a short time of each other. One assault directly led to death.
Conclusion: The accused is not guilty of murder
103 The prosecution theory was articulated by Mr Fiannaca SC:
If it is the case that Mr Marshall gave him the indication that he was wanting to intervene then, obviously, that simply adds if anything, in our respectful submission, to his anger towards Mr Marshall at that point in time but it’s consistent, we say, with the case theory that we’re putting forward that the accused has done what he did in order to prove himself in some way to Mr Paki, whether it’s because of his loyalty being challenged or because Mr Paki has effectively said to him, 'You know, well, if you think they shouldn't be here then you tell them to go home' (ts 1667).
104 This theory gains some support from the content of the SMS responses to Woods but overall lacks the cogency sufficient to form a safe basis to conclude that the accused acted with intention.
105 In light of Ms Barnes' evidence, I cannot be satisfied that the accused walked over to Stella and Leilah with the intention of dealing with anybody whom he thought may be engaging them. He walked over to them to deliver the message about going home. Whether there was any verbal interaction with the deceased, the accused's actions are consistent with treating the deceased as a collateral impediment and shoving him (obviously with far too much force) out of the way. There is a reasonable possibility that his behaviour after the event is consistent with knowledge of a crime of manslaughter only. There is a reasonable possibility that the SMS responses to Woods reflect his anger rather than his triumphant response to a challenge.
106 Moreover, I cannot exclude as a reasonable possibility that this was an angry act done by the accused without his adverting to the possible consequences. Of course he knew the likely consequences of pushing a person through a first floor window. Knowledge is an important factor to consider on the question of intention and I have considered it. But there remains a reasonable doubt that at the time he did the act which caused the deceased's death he had averted to the possible consequences and acted for the purpose of bringing those consequences about.
107 For these reasons I find the accused not guilty of murder.
108 The accused has admitted that he is guilty of manslaughter and the evidence abundantly establishes that fact. I enter judgment of conviction for manslaughter.
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