R v Collins [2004] ACTSC 48

2. On 31 May 2004, the accused pleaded not guilty to that charge. He had earlier elected to be tried by judge alone, in accordance with the provisions of s 68A of the Supreme Court Act 1933 (ACT). The procedures to be followed in a trial by judge alone are set out in s 68C which relevantly provides:

"68C Verdict of judge in criminal proceedings

(1) A judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and any such finding has, for all purposes, the same effect as a verdict of a jury.

(2) The judgment in criminal proceedings tried by a judge alone shall include the principles of law applied by the judge and the findings of fact on which the judge relied."

3. The accused may elect to be tried by judge alone in several States, as well as in the Australian Capital Territory. In New South Wales, the procedure is regulated by s 33 of the Criminal Procedure Act 1986 (NSW). The High Court considered that section in Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250. The Court held that a judge who conducted such a trial had to set out the principles of law applied, and the findings of fact on which he or she relied. A bare statement of the principles of law that the judge had applied, and the findings of fact that the judge had made, was not sufficient. The reasoning process linking them had to be exposed, and the findings, and ultimately the verdict, had to be justified.

4. In R v Massey [2000] ACTSC 107, a trial conducted by judge alone in the Australian Capital Territory, Einfeld J concluded that the obligations imposed by s 68C of the Supreme Court Act were essentially the same as those identified in Fleming. His Honour held that it was the obligation of the Court to state each and every legal principle that it applied in reaching its finding as to the accused's innocence or guilt. He noted that this obligation was not limited to responding to and addressing the parties' submissions on the proper legal principles to be applied, but extended to seeing whether any further legal principles, warnings or directions were relevant. These principles have since been applied by other judges who have conducted trials by judge alone in the Territory: see, for example, R v Tran [2003] ACTSC 53.

5. It follows that I am required to set out the general principles that are applicable to this trial, both as to matters adjectival, and substantive as well as the findings on fact on which I rely.

6. In Tran, Gray J made the following general observations regarding the conduct of the trial:

"[4] I direct myself in accordance with the law in relation to all of the matters which a jury would ordinarily be directed before retiring to consider its verdict. The accused is entitled to have a fair trial according to law. As the tribunal of fact, as well as the tribunal of law, it is my function to find the facts and to draw inferences from them as well as to apply the law to those proven facts. I must deliver my verdict according to the evidence. The burden of proving the charge lies wholly on the prosecution and no burden at all lies upon the accused. If the accused makes or points to an explanation which is consistent with innocence, the accused does not have to prove it. It is for the prosecution to disprove it or show that it is irrelevant, otherwise the prosecution will not have proved its case. The accused is presumed to be innocent until at the conclusion of the hearing the evidence establishes guilt. The standard of proof lies upon the prosecution to prove each and every element of the offence beyond reasonable doubt. Where, in this judgment, I make a finding of a particular fact, or speak of being satisfied of any matter, I reach that finding having been satisfied beyond reasonable doubt.

[5] It is for the prosecution to prove each and every element of the charge beyond reasonable doubt before a verdict of guilty can be returned. If I am satisfied that there may be an explanation consistent with the innocence of the accused in respect of any charge, or I am unsure where the truth lies, then in those circumstances, I must find the charge has not been proved to the level of satisfaction required by the law and must acquit."

I respectfully adopt this statement of principle, and propose to apply it to my role in this trial.

7. In the Australian Capital Territory, the offence of murder is defined by s 12(1) of the Crimes Act 1900 (ACT) in the following terms:

"A person commits murder if he or she causes the death of another person--

(a) intending to cause the death of any person; or

(b) with reckless indifference to the probability of causing the death of any person."

8. Murder, as defined in the Territory, is a significantly narrower offence than in the other Australian States and in the Northern Territory. Importantly, the doctrine of constructive malice does not apply. Accordingly, if a person causes the death of another by an intentional act or omission, without lawful justification, the offence of murder will not be made out unless there is also an intention to kill, or alternatively reckless indifference to the probability that death will occur. Conduct that may amount to murder in the other States, and in the Northern Territory, will, at best, constitute manslaughter in the Australian Capital Territory.

9. Although murder is statutorily defined, manslaughter remains a common law offence. Accordingly, the doctrine of unlawful and dangerous act is applicable. Section 15(1) of the Crimes Act provides that unless "a law expressly provides otherwise, an unlawful homicide that is not, under section 12, murder shall be taken to be manslaughter." In any case involving a charge of murder, a verdict of manslaughter is open as a lesser-included offence. Accordingly, notwithstanding an acquittal on a count of murder, an accused may be convicted of manslaughter.

10. To complicate matters somewhat, there are certain defences contained in the Criminal Code 2002 (ACT) ("the Code") that are applicable to this case. For example, Div 2.3.3 of the Code deals with intoxication, and sets out in detail the circumstances in which that defence can apply in relation to all offences, including murder and manslaughter. I shall return to the relationship between the Code, the statutory definition of murder, and the common law position regarding manslaughter later in these reasons for judgment.

11. The accused, now aged 24 years, is charged with the murder of his mother. It is alleged that on the night in question, he stabbed her once in the abdomen with a hunting knife that he had purchased several years earlier. The knife severed her abdominal aorta, thereby causing massive bleeding and, shortly thereafter, death.

12. At the time of the alleged offence, the accused lived with his mother at her home in Melba. He lived in a "parents' retreat" area at the back of the house. He had his own ensuite. A sliding door permitted access to the rear deck. The deceased's bedroom was in the main part of the house. No one else lived there at that time.

13. On the evening of 30 January 2003, the accused and the deceased were both at home, apparently alone. The deceased had been out earlier that night. After she returned, she telephoned a friend in Queensland. She seemed quite normal. The accused had also been out earlier that day. At one stage during the late afternoon, he had purchased a 350 ml bottle of bourbon, and four 440 ml cans of bourbon and cola. The evidence suggested that throughout the evening, he drank the bourbon and perhaps the four cans as well. It is possible, though unlikely, that he also drank some beer, and perhaps some wine.

14. At around 9.50 pm, a neighbour, Mr Ivan Young, saw the accused in Mr Young's backyard. The accused was wearing a T-shirt and shorts, and was acting in a strange manner. He was crawling around, near a sprinkler, and getting soaked. The accused told Mr Young that he had been drinking, that he "done something wrong", that he was being "a commando", and that it "must have been something that [he] read". According to Mr Young, he took the accused by the hand, and led him back to his mother's home where they met her at her back door. She greeted the accused with a "wry smile".

15. The Crown case was that at some time between 9.50 pm and 10.20 pm, but most likely towards the end of that period, the accused, by then naked and in an angry state, went into his room, opened a drawer, and removed his hunting knife from its sheath. He then went into the main part of the house and, for some unexplained reason, stabbed his mother. Dr Michael Burke, a pathologist called on behalf of the Crown, said that the knife lacerated the abdominal aorta causing massive blood loss. It also lacerated the liver. The severity of the force used meant that the blade actually penetrated the first lumbar vertebra.

16. The deceased then remained in the hallway briefly before leaving the house, bleeding profusely, and crying out for help. It was unlikely that there had been any major struggle in the entrance hallway. There were only a few ornaments found on the floor, having been knocked over from a stand near the door. The bloodstains indicated that the deceased made her way down the front steps of the house, and collapsed in the driveway. Before she collapsed, some of her blood dripped onto the ground and splattered onto the accused's left foot. At some point after the stabbing, the hunting knife was thrust into the ground, just near the bottom of the front steps. It was in that position when the first witnesses arrived at the scene.

17. Shortly after the deceased collapsed in the driveway, she lost consciousness. She was pronounced dead just over an hour later, at 11.37 pm.

18. When the first witnesses arrived at the scene, the accused was highly agitated and appeared angry. He repeatedly sought assistance for his mother, expressing frustration and annoyance at the time it was taking for the ambulance to arrive. At one point, he entered the house and telephoned emergency assistance, in an effort to speed up the process.

19. Mr Refshauge SC, the Director of Public Prosecutions, who appeared on behalf of the Crown accepted that the case against the accused was entirely circumstantial. It consisted of a combination of the following:

* the fact that the deceased appeared normal, in all respects, shortly before she was stabbed. This was said to negate any hypothesis that she might have inflicted the stab wound herself, or that she might have attacked the accused, thereby raising a possible defence of self-defence;

* when stabbed, the deceased cried out for help. This negated any suggestion that she had stabbed herself. It was also significant that she had not called out for the accused;

* the fact that the deceased ran out of the house after being stabbed, rather than seeking help from the accused;

* the fact that the knife almost certainly used to inflict the fatal wound was linked to a sheath that was found protruding from a drawer in the accused's room;

* although no suitable latent fingerprints were found on the knife, there was DNA on the handle that was consistent with the deceased being "the major contributor", and the accused "the minor contributor";

* in addition to the deceased's blood, and her DNA being located on the knife, her blood was found on various parts of the accused's body. These included his right little finger, left index fingernail, left thumb, right thumb, lower right jaw, upper chest, right palm, left palm, inner right wrist, upper left leg, upper right thigh, lower right leg, inner left thigh and upper left foot. Significantly, the blood on the upper left foot was "satellite splatter" which, in the opinion of an expert, meant that the accused and the deceased were in an upright position when blood dripped from her body and caused a spatter on his foot. Accordingly, the accused and the deceased must have both been standing upright, in close proximity to each other, at about the time that she was stabbed;

* there were no defensive wounds found on the deceased;

* there was no sign of any significant struggle at the site of the stabbing;

* the accused's blood or DNA was found in various areas of the house, including the screen door, telephone, freezer door, kitchen bench drawer, hallway, sliding door, curtains and light switch. His blood was also found on a pair of shorts that he had been wearing when seen crawling through his neighbour's garden shortly before the stabbing took place. He had injuries on his body that were consistent with having been inflicted by a sharp implement;

* Dr Burke testified that death resulted from the stab wound to the abdomen, and expressed the opinion that, having regard to the severity of the force used, it was unlikely that the fatal wound had been self- inflicted, or caused by accident;

* the toxicology report regarding the deceased did not detect any relevant drugs;

* the accused had acted in a bizarre manner shortly before his mother was stabbed;

* there was located in the accused's ensuite a magazine that included an article concerning the circumstances under which the Nepalese Crown Prince had slain various members of his family;

* the fact that the accused was plainly intoxicated at about the time that the stabbing occurred;

* the fact that earlier that day he had borrowed a DVD titled, "The Sum of All Fears" which was said to contain certain scenes depicting violence;

* various conversations that the accused had in the period leading up to the stabbing indicating that although he may have been drinking, he was not so affected by alcohol as to be incapable of acting voluntarily, or of forming the requisite intent for murder;

* various conversations that the accused had with the police, some civilians, a doctor, and his brother-in-law in the hours after the incident, again showing that he was neither incapable of acting voluntarily, nor of forming the requisite intent;

* significantly, the fact that within minutes of the stabbing the accused was able to telephone the emergency number, and seek assistance, referring specifically to a stab wound;

* evidence that a quantity of cannabis seeds and a bong were found in the accused's living area, tending to support the conclusion that he was a regular user of cannabis; and

* the fact that the accused was in an angry state as observed by those who attended the scene shortly after the stabbing.

20. Mr Refshauge contended that it was clear from a combination of these facts that the accused must have stabbed his mother. Moreover, he must have done so with intent to kill, or with reckless indifference to the probability of causing her death. The requisite intent was to be inferred from the force of the stabbing, which both Dr Burke and Dr Byron Collins, a pathologist called on behalf of the defence, agreed had been "severe". It was also to be inferred from the site of the wound, the size, sharpness and other characteristics of the knife, the location and "tranquillity" of the site of the stabbing (which excluded any struggle or accident), and the behaviour of the accused after the incident which was said to be inconsistent with any hypothesis of accidental stabbing.

21. The evidence suggested that the accused had little, if any, memory of the events that occurred between the time that he arrived home after purchasing the alcohol earlier that afternoon, and the arrival of the police in response to the emergency calls made by the neighbours. Mr Refshauge suggested to the accused in cross-examination that he had exaggerated the extent of his amnesia, and there was some support for that proposition based upon a report of Dr Emonson to which I shall return. However, as I understood Mr Refshauge's final position, he did not seriously challenge the accused's claim that he had no memory of anything from the time that he began to watch the DVD, and drink the bourbon, until after his mother was dead. Nonetheless, Mr Refshague submitted, that a person can form an intent to kill, or act with reckless indifference to the probability of causing death, even if that person has no recollection of what he or she might have done.

22. Mr Refshauge submitted that if I were not satisfied that the accused acted with intent to kill, I should nonetheless be satisfied that he had at least been reckless as to the probability of causing death. In that regard, he submitted that the term "reckless indifference" had been construed, in the context of the legislative precursor to s 12(1)(b), in a subjective sense. See generally R v Brown (1987) 78 ALR 368, following the decisions of the High Court in The Queen v Crabbe [1985] HCA 22; (1985) 156 CLR 464 and Boughey v The Queen [1986] HCA 29; (1986) 161 CLR 10 at 21.

23. Mr Refshauge's alternative submission was that even if murder was not proved, the accused must at least be guilty of manslaughter. By intentionally stabbing his mother, he must at least have intended to injure her seriously.

24. Mr Refshauge submitted that the fact that the Crown could point to no apparent motive on the part of the accused for wishing to kill his mother, or even to cause her serious injury, was of no legal significance. His obvious level of intoxication could explain his conduct. In addition, he may have been suffering from the effects of marijuana ingested the previous evening, and perhaps that day as well. It was also possible that he had been influenced by the violence depicted in the DVD, and that could have explained why he had fantasised about being a commando shortly before the incident took place.

25. Mr Purnell SC, on behalf of the accused, reminded me of the distinction between legitimately drawing inferences, and engaging in speculation or conjecture. He submitted that the Crown had failed to prove that the accused was in any way responsible for the death of his mother. Alternatively, even if the Crown could establish that fact, it could not prove that the accused had stabbed her with either of the requisite intents for murder.

26. So far as the actus reus was concerned, Mr Purnell submitted that there were several rational hypotheses consistent with innocence that the Crown had failed to exclude. It was possible, for example, that for whatever reason, the deceased had stabbed herself. Alternatively, some third party may have inflicted the wound. A further alternative involved the accused having stabbed his mother by accident, while engaging in some form of fantasy associated with having seen the DVD, and believing that he was a "commando".

27. With regard to the mens rea, Mr Purnell submitted that, even if the accused had stabbed his mother, the Crown had not proved that he had done so with an intent to kill, or with reckless indifference to the probable consequences of his act. He submitted that merely because the wound had required "severe force" did not mean that it had been inflicted with either of these intents. He relied, in particular, upon the fact that the accused had no reason to harm his mother, still less to cause her death. He submitted that the evidence suggested that there was a normal, loving mother-son relationship between them. The fact that she had a "volatile temper", or that he had a "fiery personality", could hardly form the basis of an inference that there had been some altercation between them.

28. Mr Purnell relied heavily upon the evidence of Mr Young, the neighbour, as to the accused's state of mind shortly before the deceased was stabbed. At the committal, Mr Young had testified that some thirty minutes or so before the deceased was found lying in the driveway fatally wounded, the accused was "meek, calm and child-like", and his mother "normal".

29. Mr Purnell reminded me that Dr Burke did not rule out accident as the cause of death, although he expressed the view that this was unlikely. Dr Collins concluded that, considering the forensic evidence alone, accident was a possibility. The accused's strange behaviour, literally minutes before the incident, enhanced the possibility that he might have stabbed his mother accidentally, without having acted consciously and voluntarily, and certainly without any intent to cause her harm.

30. Mr Purnell further developed that submission by noting that Dr William Knox, the psychiatrist called on behalf of the accused, had given evidence that the accused might have been acting out some form of fantasy, possibly influenced by the DVD, whilst at the same time significantly intoxicated. If he were running around naked, wielding a knife, and believing that he was a commando, he might accidentally have come into contact with his mother. Indeed, it was possible that the two might have collided, resulting in her being impaled with the knife.

31. The theory that some other person might have been responsible for the stabbing rested largely upon the evidence of Mr Young. He said that at about 10.20 pm he heard the deceased cry out "somebody help me", and then heard "voices" coming from next door. When cross-examined about this matter at the committal, Mr Young was asked about the term "voices". When asked specifically whether there were more than two voices, he replied, "I heard Tom and I think other voices". He was then asked whether he meant there were at least two other voices, apart from Tom's. He replied "Yes".

32. The injury to the accused's clavicle, which appeared to be a scratch, possibly inflicted by a knife, was also said to support the "third person" theory. Mr Purnell suggested that some unknown person may have turned up with marijuana for the accused, and possibly joined him in playing "commandos". That person might have been responsible for the death of the deceased, whether deliberately or by accident.

33. As previously indicated, an unusual feature of this case is the fact that the accused has no memory of anything from the time he began watching the DVD until after the deceased had been stabbed. The accused gave evidence, and the Crown did not seriously challenge his claim of amnesia. Both Dr Knox, and Dr Stephen Allnutt, the consultant forensic psychiatrist called by the Crown, accepted that the amnesia was genuine. Mr Purnell submitted that this meant that no one could possibly know how the deceased came to be stabbed. The Crown case was therefore entirely theoretical, and largely speculative.

34. Mr Purnell then turned to the evidence concerning the accused's intoxication. He submitted that it was plain that the accused was heavily intoxicated at the time of the incident, and possibly affected by marijuana as well. If, as seemed likely, he drank the entire bottle of bourbon that he had purchased earlier that day, and several cans of bourbon and cola, his blood alcohol level would have been somewhere between 0.15 and 0.25. His behaviour, as witnessed by Mr Young, suggested that he was seriously inebriated. According to Dr Knox, a person with this blood alcohol level, and possible drug usage, was unlikely to have had the capacity to act in a conscious and voluntary manner. It was even less likely that such a person could form an intent to kill.

35. In support of this contention, Mr Purnell relied upon the fact that the accused was found naked in the driveway, apparently oblivious to being in that state. He reminded me that the evidence was that the accused was normally a shy person who did not undress in front of other people. He asked rhetorically why a son would appear naked in front of his mother if he were otherwise functioning in a normal, cognitive way.

36. Mr Purnell also alluded to the evidence of Mr Dominic Bilbie, the accused's brother-in-law, who spoke to the accused by telephone several hours after his mother had been pronounced dead. The accused told Mr Bilbie that the police were alleging that he had killed his mother. Yet, shortly afterwards, he asked Mr Bilbie if he "could find out how his mother was". Mr Purnell submitted that this too suggested that the accused had little, if any, appreciation of what he might have done.

37. Mr Purnell next submitted that the evidence established that the accused suffered from an "abnormality of mind" at the relevant time. The condition was based on alcohol, marijuana and the influence of the DVD. It prevented the accused from having the capacity to form an intent to kill, or any other mens rea. Mr Purnell based that submission upon the evidence of Dr Knox who expressed the opinion that the accused might have been acting in a distorted state of reality. Dr Knox went further, and suggested that it was possible that the accused had been acting out a fantasy in which he may have believed that he was in danger, and that he had to defend himself.

38. Mr Purnell noted that although Dr Allnutt disagreed with Dr Knox he nevertheless accepted that Dr Knox's opinion was one that an expert could reasonably hold. He submitted that having extracted that concession from Dr Allnut, the Court could not do otherwise than find that the defence of diminished responsibility had been made out. He cited the decision of the Full Court of the Federal Court in Donyadideh v The Queen [1995] FCA 572 as authority for that proposition.

39. Finally, Mr Purnell submitted that it was of some significance that the accused's father, two sisters and brother-in-law had all given evidence on his behalf. He relied upon the accused's prior good character as rendering it less likely that he had killed his mother, and as enhancing his credibility as a witness. Mr Purnell accepted that the evidence did not raise any issue of self-defence, or of provocation. He also accepted that there was no question of insanity to be determined.

40. Before the accused can be convicted of either murder or manslaughter, the prosecution must prove that he caused the death of his mother. That means that the prosecution must prove that he inflicted the stab wound that led to her death, and that he did so by a deliberate, conscious and voluntary act.

41. Although the case against the accused is largely circumstantial, I am nonetheless satisfied that these elements have been made out. I reject Mr Purnell's submission that there are rational hypotheses consistent with innocence.

42. Circumstantial evidence is evidence of a basic fact or facts from which the Court is asked to infer a further fact or facts. Each of the facts upon which I have relied in coming to the conclusion that the accused deliberately stabbed his mother was proved beyond reasonable doubt. The inference that I have drawn is the only rational hypothesis that can be drawn.

43. The idea that the wound was intentionally self-inflicted is obviously fanciful. There is nothing to suggest that the deceased was suicidal, or even mildly depressed. Mr Young's evidence was that moments before the deceased was stabbed, she appeared quite normal. A sixty-five year old woman who has just attempted to take her own life would hardly be likely to leave the house, go down the steps into the driveway, and cry out for help. In addition, the severity of the force needed to inflict the wound, and its location, are hardly suggestive of suicide.

44. Dr Burke, the pathologist who performed the autopsy, and who has undertaken extensive research into the incidence of single stab wounds on deceased persons, gave evidence that the fatal wound had gone all the way from the skin at the front of the abdomen through to the back bone. On a spectrum of mild, moderate, and severe force, he described the wound as having been inflicted with "severe force". When asked whether he considered that the wound could have been self-inflicted, he said that he did not think so. He was, of course, speaking purely as a pathologist. However, his conclusion is supported by all of the surrounding circumstances. I have no hesitation in accepting his opinion on this issue.

45. I note that Dr Collins agreed with Dr Burke that a knife wielded with severe force had inflicted the wound. Otherwise, there could not have been any penetration of cortical bone of the vertebra. Dr Collins considered that within the category of "severe force", the actual amount of force required to get through the cortical bone was "moderate". Indeed, he conducted an experiment upon the deceased's vertebra in Court. He inserted the knife said to be the murder weapon a distance of approximately one centimetre in order to see how difficult it would be to achieve that level of penetration. When asked whether the wound could have been self-inflicted, he replied that this was possible as the area was readily accessible. However, he qualified that answer by saying that it was based solely upon pathological considerations. In other words, he did not take into account the inherent probabilities based on the surrounding circumstances. Nor, of course, was it his job to do so.

46. The theory that some unknown assailant stabbed the deceased is, if anything, less plausible than the suggestion that she may have committed suicide. She was killed with the accused's knife. It was taken from his room. The idea that a stranger just happened to turn up at the house at around the very time that the accused was so drunk as to be incapable of remembering anything, and stabbed the deceased to death, stretches the bounds of credulity. There was no evidence to indicate a forced entry. On this theory, the real killer would have to have been extraordinarily fortunate. Somehow, the accused got blood on his left foot resulting from a "satellite splatter" while both he and his mother were standing up in close proximity to each other.

47. There is absolutely nothing to support the theory that the deceased was killed by a stranger except for Mr Young's evidence that he believed that he had heard more than one voice, apart from the accused's, after the deceased had cried out. As Mr Refshauge correctly pointed out, Mr Young may simply have been mistaken. Alternatively, the other voice that Mr Young heard may have been that of one of the other neighbours who turned up in response to the deceased's cry for help.

48. The next hypothesis proffered by Mr Purnell was that the accused had accidentally stabbed his mother. By "accidentally", he meant "not intending to stab anyone", not merely "not intending to stab his mother". In other words, he submitted that the stabbing may not have been a conscious and voluntary act.

49. I am satisfied that this hypothesis should be rejected. It would require an amazing stroke of bad luck for the accused to have stabbed his mother in the abdomen, with severe force, while simply playing at being a commando. The idea that she impaled herself on the knife, while it was held firmly in his grasp, with his elbow against some solid object like a wall, may be regarded as fanciful.

50. Dr Burke was asked whether the stabbing could have been accidental. He said that his detailed research over the years led him to conclude "beyond reasonable doubt" that this could not be the case. When pressed, in cross-examination, he acknowledged that he could not say that such a thing was impossible.

51. Dr Collins was significantly more receptive to the possibility of accident. He said:

"But in general terms the physical characteristics of the wound, I don't see any reason why a person could not be impaled on that wound in whatever particular scenario that was appropriate."

52. When asked whether a person could walk into the knife, and sustain such a wound, his said that this would be possible. He added:

"You would have to have a degree of momentum. And the knife would have to be held relatively firmly so that it doesn't deviate. But, certainly that would be possible in my view."

53. Dr Collins was then asked whether the deceased could have sustained the wound by falling onto the knife. He again answered that this was possible, provided it were held relatively firmly. He even suggested that if the knife had been in the deceased's own hand, and she fell over onto it, that might have produced the wound. Another possible scenario would be if the person holding the knife fell over onto the deceased.

54. There is a substantial difference between what might be a theoretical possibility, viewed purely from a forensic perspective, and a rational hypothesis consistent with innocence. The forensic evidence cannot be considered in isolation. It is part of a broader matrix of fact that includes the accused's own physical and mental condition at the time. I acknowledge that Dr Collins is an eminent pathologist with vast experience. However, when his evidence is considered in the light of all the other circumstances, I am satisfied that the theory that the deceased might have impaled herself on the knife is just that, and so highly improbable as to fall well short of a rational hypothesis.

55. To the extent that there is a conflict between Dr Burke, who has made a detailed study of single stab wounds on deceased persons, and who plainly rejects accident as a reasonable hypothesis, and Dr Collins, I prefer the views of Dr Burke.

56. I am fortified in my conclusion that the wound was no accident by a careful consideration of the accused's behaviour both immediately before and shortly after the stabbing. Under the impaling theory, the knife would have to have been gripped firmly in the accused's hand throughout the entire act of stabbing, and probably also required his elbow to come up against a wall or another solid object. There are limits to the bounds of coincidence. I cannot envisage any circumstances, bearing in mind the totality of the evidence in this case, in which the deceased might have impaled herself on the knife by walking into it, or tripping or falling against it. In short, I find that, subject to any question of intoxication, the accused deliberately stabbed his mother, and thereby caused her death.

57. The next question to be determined is whether the accused acted consciously and voluntarily. Normally, there would be no doubt at all about this issue once it is clear that the impalement theory has been rejected. However, there was evidence from Dr Knox regarding this matter.

58. Dr Knox interviewed the accused for about eighty minutes on 2 September 2003. He also saw the DVD. Mr Purnell asked him to assume that the accused had been drinking heavily on 29 January 2003, the day before the deceased was killed, that he had gone to bed at about midnight that night and slept for more than twelve hours. He awoke at 2.00 pm the following day. Dr Know was then asked to assume that the accused subsequently ate part of a bacon and egg roll, borrowed the DVD from a video shop, and later drank the entire contents of the 350 ml bottle of bourbon, and at least two or three 440 ml cans of bourbon and cola. He was told that the bottle of bourbon contained the equivalent of twelve standard drinks.

59. Dr Knox was also told that some time between 5.30 and 6.00 pm on 30 January 2003, the accused spoke by telephone to a friend, Mr Nigel Hill, who had previously supplied him with marijuana. Mr Hill was at a football game at the time. The accused asked him for some cannabis, and was told to get it from someone else. Mr Hill said that the accused sounded normal when he spoke to him.

60. Next, Dr Knox was asked to assume that the accused's father, Mr Kenneth Collins, rang him at about 8.00 pm on the night of 30 January 2003 and had a conversation with him. His father was concerned by the tone of the conversation. The accused's words were slurred, and at one point, his father asked him if he were on drugs.

61. Finally, Dr Knox was asked to take into account the evidence of Mr and Mrs Young, regarding the accused's somewhat strange behaviour at about 9.50 pm. The accused was said to have been unsteady on his feet, confused, puzzled, and to have given some answers to questions that were non-responsive or unintelligible. Mr Young had said, however, that he smelt no alcohol on the accused's breath.

62. Having put all these matters to Dr Knox, and having also described in detail the evidence of the neighbours who came to the scene after the deceased had been stabbed, Dr Knox was asked whether, in his opinion, the accused had acted in a voluntary manner between 10.00 and 10.30 pm on 30 January 2003. His answer was "I don't believe so".

63. Dr Knox also expressed the opinion that the accused had been unable to form any intent to kill at the relevant time. He characterised the accused as having been "severely mentally impaired". He described the impairment as an "abnormality of mind", namely "alcohol intoxication". Indeed, he said that it was "highly probable" that the accused had "acted in a mistaken frame of mind as to what reality was". On the assumption that the accused stabbed his mother, he might have done so in the belief that he was acting in self-defence.

64. Dr Knox went on to say that by describing himself as a "commando", and crawling through the neighbours' backyard sprinkler system, the accused appeared to be living in some "fantasy state", and suffering from a "very severe state of disturbance". When asked whether he was using the expression "abnormality of mind" in a psychiatric sense, Dr Knox replied that there was nothing to suggest that the accused's brain had not worked in a healthy, normal way. However, the accused was very drunk, and when combined with the influence of the film, he engaged in distorted thought processes.

65. Something should perhaps be said about the film, "The Sum of All Fears". The DVD was tendered as an exhibit, and I have since seen it. It is based upon a novel by the author, Tom Clancy. It concerns an Israeli nuclear bomb that is buried in the desert after the 1973 Yom Kippur War and, many years later, dug up. The bomb is sold to a neo-fascist terrorist group wishing to restore Nazi values and power. That group explodes the bomb at an American football match, attended by the President of the United States, in a way that makes it look as though the Russians were responsible. The situation almost provokes nuclear war between the United States and Russia. A former marine, who has now become an historian and analyst for the CIA, saves the day, persuading the United States military authorities that the Russians were not responsible, and identifying those who were.

66. Dr Knox suggested that a possible explanation for the accused's statement about being a "commando" might have been the influence that the film had upon him. I accept that this is a possibility, although there is little in the film to support this theory. It does not feature commandos as such. Indeed, so far as I can tell, the word "commando" is not used at all. There is a scene in which several CIA operatives arrive at a beach in a dinghy at night, run across the ground, cut their way through a fence, and confront some Ukrainian soldiers. That scene may be the source of Dr Knox's theory. There is another scene, set in the United States, in which the protagonist enters certain premises at night and overcomes the persons who are present. No one is stabbed in either of these scenes. At a later point in the film, an individual is strangled, and another is shot. It is true that the film depicts a nuclear explosion that causes massive loss of life. However, it does so in a manner that avoids the kind of graphic violence that is often seen in films of a similar genre.

67. Dr Knox considered that the film, combined with the alcohol that the accused had consumed, might explain his aberrant behaviour. I am conscious, of course, that the impact of the film upon a person who is heavily intoxicated might be different from its effect upon a person who is sober. For what it is worth, however, the film seems to me to have been so innocuous in its depiction of violence that it is unlikely to have been a significant source of any violence that the accused manifested towards his mother. And if I am wrong about that, it makes no difference to my decision in this case.

68. As noted earlier, the Crown called its own psychiatrist to rebut the evidence of Dr Knox. Dr Allnutt is a consultant forensic psychiatrist. Unlike Dr Knox, he has formal qualifications in forensic psychiatry. He too had seen the film in question. However, unlike Dr Knox, he had not interviewed the accused.

69. Dr Allnutt concluded that there was no evidence to suggest that the accused was suffering from any type of psychotic episode on the night in question. He described the accused's behaviour in the neighbours' garden as typical of a person who was drunk and playing out some form of fantasy. He rejected any notion of dissociation. He said that it is not possible to diagnose dissociation in a person who has been drinking heavily. His explanation for the accused's conduct was simply that he was drunk.

70. Dr Allnutt went on to say that notwithstanding his intoxication, he considered that the accused had the capacity to act in a conscious and voluntary manner, and also had the capacity to form the requisite intent for murder or manslaughter. The accused had played out a fantasy. A fantasy was a product of the will and not a delusion.

71. Dr Allnutt based his conclusions upon the totality of the evidence concerning the accused's actions on the night in question. He noted that earlier that evening the accused had telephoned his supplier, seeking drugs. His subsequent discussion with his father had been both rational and responsive. His father said that the accused had lowered his voice when asked to do so. Within minutes of the stabbing, the accused had responded appropriately when told that he was naked, covering his body with a doona. He had been able to telephone emergency services, and to express anxiety and anger about the time it was taking the ambulance to arrive. All these factors suggested capacity for appraisal, presence of mind, and therefore intent. Indeed, Dr Allnutt's evidence was that he could say "with medical certainty" that the accused had the capacity to form intent. The same was true of his capacity to act voluntarily.

72. Importantly, Dr Allnutt referred to a report prepared by Dr David Emonson, a medical practitioner who had interviewed the accused some two hours or so after the incident, in order to determine whether he was fit to be questioned by police. The accused's interaction with Dr Emonson showed that he was cognitively intact. For example, he answered questions responsively, and was able to perform tasks such as counting backwards from one hundred by sevens until he arrived at an answer of two. He was able to remember six numbers in sequence when challenged some minutes later. Indeed, he was able to remember them in reverse order. He could also remember six separate words. He could complete a proverb. He could identify Australia's current Prime Minister, and also his predecessor. At no time during Dr Emonson's assessment could he detect any disordered thought on the part of the accused. His comments and manner were described as "appropriate" throughout the interview. The same was true of his conduct during a subsequent forensic assessment.

73. In my opinion, the evidence of Dr Allnutt was cogent and persuasive. Dr Emonson's report, which was tendered, speaks for itself. He interviewed the accused between 12.25 and 12.40 am on 31 January 2003, about two hours after the incident involving his mother. In my view, it is highly unlikely that a person who was so intoxicated that he could not or did not act consciously and voluntarily could recover so quickly as to be able to conduct himself as the accused did in his discussion with Dr Emonson. The same is true of the accused's capacity to form an intent.

74. I have some difficulties with the evidence of Dr Knox. His views regarding the effect of intoxication are by no means easy to reconcile with the law on this subject as authoritatively stated by Barwick CJ in The Queen v O'Connor [1980] HCA 17; (1980) 146 CLR 64, where his Honour said at 71-2:

"The state of drunkenness or intoxication can vary very greatly in degree. A person may be intoxicated in the sense that his personality is changed, his will is warped, his disposition altered, or his self-control weakened, so that whilst intoxicated to this degree he does act voluntarily and intentionally which in a sober state he would or might not have done. His intoxication to this degree, though conducive to and perhaps explanatory of his actions, has not destroyed his will or precluded the formation of any relevant intent. Indeed intoxication to this degree might well explain how an accused, otherwise of good character, came to commit an offence with which he is charged.

Intoxication to the stated degree might have rendered an accused less aware of what he was doing, or of its quality, significance or consequence. But, if voluntary, his acts remain his: and he intends to perform them. So long as will and intent are related at least to the physical act involved in the crime charged, and saving for the moment the case of a crime of so-called specific intent, the fact that the state of intoxication has prevented the accused from knowing or appreciating the nature and quality of the act which he is doing will not be relevant to the determination of guilt or innocence. Apart from provisions as to diminished responsibility where such provisions are available, it is only where the lack of appreciation of the nature and quality of what is voluntarily and intentionally done is due to a disease of the mind that such lack of appreciation bears on guilt: and then only for historical reasons on the nature of the verdict to be returned."

75. The common law recognises various levels of intoxication. As Barwick CJ noted, intoxication, to a degree that an accused's personality is changed, his disposition altered, or his self-control weakened, though perhaps explanatory of the accused's actions, will not be regarded as having prevented him from acting in a conscious and voluntary manner, or from having formed the requisite intent. The accused may be "less aware of what he was doing, or of its quality, significance or consequence". He will, nonetheless, be responsible for his actions. Indeed, the learned Chief Justice observed that this level of intoxication is "irrelevant to a consideration of the accused's criminal culpability, at least in relation to crimes of basic intent". He went on to say that only rarely will the state of intoxication be so extreme that the will of the accused can be regarded as divorced from the movements of his body so that they are truly involuntary. Perhaps more frequently, the state of intoxication, whilst not being so complete as to preclude the exercise of the will, may be sufficient to prevent the formation of an intent to do the physical act involved in the crime charged. In a crime of specific intent, intoxication may assume a more central role in the realm of relevant considerations.

76. I note that Barwick CJ went on to say that lack of recollection, attributable to a past state of intoxication, was not necessarily indicative of any of these states of intoxication. Even a credible assertion of a lack of recollection would not prevent a finding that what had occurred involved a conscious and voluntary act, done with the requisite intent.

77. The position of intoxication as a defence to a criminal charge in the Australian Capital Territory is complicated by the fact that it is dealt with specifically by the Code_._ Under ss 8 and 10, the provisions of s 15(5) and Div 2.3.3 apply to this trial.

"Evidence of self-induced intoxication cannot be considered in deciding whether conduct is voluntary."

79. It would seem therefore that in determining whether the conduct of the accused was voluntary, self-induced intoxication is to be disregarded. It is plain that his intoxication in this case was self-induced. On this analysis, Dr Knox's opinion that intoxication prevented him from acting voluntarily is irrelevant as it conflicts with the statutory requirement that intoxication be disregarded.

80. Div 2.3.3 of the Code contains ss 30 to 34, which provide as follows:

"30 Intoxication--interpretation

(1) Click here for Picture In this Act:

fault element of basic intent means a fault element of intention for a physical element that consists only of conduct.

intoxication means intoxication because of the influence of alcohol, a drug or any other substance.

(2) Click here for Picture For this Act, intoxication is self-induced unless it came about--

(a) Click here for Picture involuntarily; or

(b) Click here for Picture because of fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force; or

(c) Click here for Picture from the use of a drug for which a prescription is required and that was used in accordance with the directions of the doctor or dentist who prescribed it; or

(d) Click here for Picture from the use of a drug for which no prescription is required and that was used for a purpose, and in accordance with the dosage level, recommended by the manufacturer.

(3) Click here for Picture However, subsection (2) (c) and (d) does apply if the person using the drug knew, or had reason to believe, when the person took the drug that the drug would significantly impair the person's judgment or control.

31 Intoxication--offences involving basic intent

(1) Click here for Picture Evidence of self-induced intoxication cannot be considered in deciding whether a fault element of basic intent exists.

Note Click here for Picture A fault element of intention in relation to a result or circumstance is not a fault element of basic intent (see s 30 (1), def fault element of basic intent).

(2) Click here for Picture This section does not prevent evidence of self-induced intoxication being considered in deciding whether conduct was accidental.

(3) Click here for Picture This section does not prevent evidence of self-induced intoxication being considered in deciding whether a person had a mistaken belief about facts if, when carrying out the conduct making up the physical element of the offence, the person considered whether or not the facts existed.

(4) Click here for Picture A person may be taken to have considered whether or not facts existed when carrying out conduct if--

(a) the person had considered, on a previous occasion, whether the facts existed in the circumstances surrounding that occasion; and

(b) the person honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as the circumstances surrounding the previous occasion.

32 Intoxication - negligence as fault element

(1) If negligence is a fault element for a particular physical element of an offence, in deciding whether the fault element exists for a person who is intoxicated, regard must be had to the standard of a reasonable person who is not intoxicated.

(2) However, if intoxication is not self-induced, regard must be had to the standard of a reasonable person intoxicated to the same extent as the person concerned.

33 Intoxication - relevance to defences

(1) If any part of a defence is based on actual knowledge or belief, evidence of intoxication may be considered in deciding whether the knowledge or belief exists.

(2) However, if -

(a) each physical element of an offence has a fault element of basic intent; and

(b) any part of a defence is based on actual knowledge or belief;

evidence of self-induced intoxication cannot be considered in deciding whether the knowledge or belief exists.

(3) If any part of a defence is based on reasonable belief, in deciding whether the reasonable belief exists, regard must be had to the standard of a reasonable person who is not intoxicated.

(4) If a person's intoxication is not self-induced, in deciding whether any part of a defence based on reasonable belief exists, regard must be had to the standard of a reasonable person intoxicated to the same extent as the person concerned.

34 Involuntary intoxication

A person is not criminally responsible for an offence if the person's conduct making up the offence was as a result of intoxication that was not self-induced."

81. On one view, Div 2.3.3 applies to each and every element of the crime of manslaughter, but to some, and not all, of the elements of murder. Evidence of self-induced intoxication is not to be considered when deciding whether "a fault element of basic intent exists". That expression is defined in s 30(1) to mean "a fault element of intention for a physical element that consists only of conduct". Murder, though not defined in the Code, consists of the following physical elements:

82. The first of these physical elements would be regarded as "conduct" under s 14(a) of the Code. The second would be regarded as "a result of conduct" under s 14(b). It is arguable that s 31(1) of the Code does not apply to the second of these elements, which is not "only... conduct" within the meaning of the definition of "fault element of basic intent". It would, however, apply to the fault element for the acts or omissions.

83. Manslaughter, however, appears to have three physical elements:

84. The first of these physical elements would be regarded as "conduct" under s 14(a) of the Code. The second would be regarded as "a result of conduct" under s 14(b). The third would be regarded as "a circumstance in which conduct, or a result of conduct happens" under s 14(c). Section 31(1) would appear to apply to the fault element for the acts or omissions, but not to any fault elements of the other two physical elements. There being no such fault elements, it is arguable that s 31(1) applies to the offence of manslaughter as a whole.

85. It is unnecessary for the purposes of this judgment to come to any definitive conclusion as to how the provisions of the Code dealing with intoxication mesh with the statutory definition of murder, or the common law elements of manslaughter. The Code can only have made the accused's reliance upon self-induced intoxication more difficult. Even if one were to put these provisions to one side, it is clear that his level of intoxication was not so extreme as to negate his capacity to act consciously and voluntarily. Nor was it so extreme as to negate his ability to form an intent to stab another.

86. Dr Knox's analysis proceeded upon the basis that an inability to reason with a sufficient degree of composure resulted in an inability to act consciously and voluntarily, or with basic intent. That is not the law as enunciated in O'Connor.

87. By contrast, Dr Allnutt gave his evidence in a more balanced and detached manner. He concluded that even with a blood alcohol content of between 0.15 and 0.25 the accused was perfectly capable of acting consciously and voluntarily, and with the requisite intent. His approach was in accord with that adopted by the High Court in O'Connor. It was thoroughly supported by Dr Emonson's report, and also by all of the surrounding circumstances. To the extent that his views differ from those of Dr Knox, I much prefer the views of Dr Allnutt.

88. There is one point that should be made regarding Mr Purnell's cross-examination of Dr Allnutt. He submitted that by virtue of certain concessions that were supposedly extracted, the only finding that was open was that the Crown had failed to prove that the accused's actions were conscious and voluntary, or that they were done with the requisite intent.

89. It is true that under cross-examination, Dr Allnutt was asked whether he could "exclude the possibility" that the accused's actions on the night in question were involuntary. He replied that he considered that scenario to be "highly unlikely". Mr Purnell seized upon that answer to suggest that Dr Allnutt "could not exclude the possibility". Dr Allnutt replied, "Anything's possible." Subsequently, Mr Purnell suggested that "in clinical terms", Dr Allnutt could not exclude the possibility that the accused was acting out a fantasy where his will did not control his actions. Dr Allnutt replied:

"I can only conclude that based on the information provided he had the capacity to will his actions... I believe he had the capacity to behave in wilful actions... and that's indicated by the absence of a psychosis and the likelihood he was regarding - in a fantasy which is a wilfully produced idea..."

90. Shortly afterwards, Mr Purnell again suggested that it was "possible" that the accused had lacked the capacity to act voluntarily. Once again, Dr Allnutt replied: "Anything is possible."

91. When I indicated to Mr Purnell that the answer "Anything is possible" did not seem to me to shed much light on precisely what Dr Allnutt was prepared to accept, he reformulated his questioning. The cross-examination went as follows:

"MR PURNELL: Doctor, you've expressed your view many times, agreed?---Yes.

And you've also said that something was possible on the basis that anything is possible?---Yes.

But you agree, don't you, that it's reasonable, even though you don't agree with it, for Dr Knox and/or another psychiatrist to have the views expressed by him. It's reasonable, even though you don't agree with

it?---Yes, of course, my colleagues can have their own opinion.

And so Dr Knox's opinion, even though you don't agree with it, is a reasonable proposition?---It's a reasonable proposition in that it's something that needs to be considered.

HIS HONOUR: And having considered it?---I disagree with it.

MR PURNELL: And it is that opinion of Dr Knox could be shared by others, and that wouldn't surprise you, I suppose?---It wouldn't surprise me if other people shared Dr Knox's view.

And because it creates a realistic possibility, even though a divergent one from yours?---Look, I mean, its this pure speculation. I've got no idea what - what people not involved in this trial would think of the information. We would have to hand it out to my colleagues and allow them to draw their own conclusion. I can only comment on Dr Knox.

All right?---I think the rest is pure speculation.

Dr Knox's views present a realistic possibility in relation to this case, even though divergent from yours?---I think I've answered that question."

92. Mr Purnell submitted that, in accordance with the decision of the Full Court in Donyadideh, to which I have already referred, the answers given by Dr Allnutt necessitated a verdict of acquittal. I reject that contention. Notwithstanding the abolition of the "ultimate issue rule" by s 80 of the Evidence Act 1995 (Cth), the weight to be given to expert evidence is a matter for the trier of fact: Chamberlain v The Queen (No. 2) [1984] HCA 7; (1984) 153 CLR 521 at 558 and 598. In this case, the evidence of Dr Knox and Dr Allnutt was challenged, so the principles and directions normally given to juries regarding unchallenged expert evidence are not applicable.

93. In my view, having had the benefit of closely observing Dr Allnutt in the witness box, his concession that "anything is possible" should be regarded as nothing more than a statement of the obvious, namely that in a theoretical sense virtually nothing can be totally excluded. I am in no doubt that Dr Allnutt held firmly to his views. Equally I am in no doubt that Dr Allnutt considered the opinions of Dr Knox to be misconceived. I regard his "concession" that Dr Knox's opinion was "reasonable" (in the sense that it needed to be "considered") as little more than polite discourse, and not as any real concession that Dr Knox might be right after all. Nothing in Donyadideh requires me to treat Dr Allnutt as having made a concession that manifestly, in my view, he did not make.

94. In the end, I have concluded that the Crown has failed to prove beyond reasonable doubt that the accused intended to kill his mother when he stabbed her. In arriving at that conclusion, I have had regard to his level of intoxication, his conduct shortly before and after the incident, and to some degree on the absence of any evidence of motive on his part. The Crown faced a heavy onus in attempting to establish that a single stab wound, inflicted without any apparent motive, could lead to an inference that there had been an intent to kill. That onus was not discharged.

95. I have also concluded that the Crown has failed to prove its alternative case of murder beyond reasonable doubt. I am not satisfied that the accused acted with reckless indifference to the probability that he would cause his mother's death when he stabbed her. The test for this limb of murder is wholly subjective. The accused must have foreseen the likelihood that, by his actions, he would bring about the death of another. See Boughey v The Queen. I am not satisfied that, in his intoxicated state, the accused foresaw that likelihood. His generally aberrant behaviour suggests that his powers of perception were somewhat impaired. As Mr Refshauge conceded, intoxication can be taken into account in negating specific intent.

96. Having concluded that the Crown has failed to establish what might otherwise be a case of murder, it is unnecessary to deal with the defence of diminished responsibility. That defence operates to reduce what would otherwise be the crime of murder to manslaughter, and has no application where the elements of the offence of murder are not otherwise established. The accused has the onus of establishing that defence. Even if it were necessary for me to consider diminished responsibility in the present case, I consider that manifestly, the onus has not been discharged. There was no abnormality of mind of the kind required to make good that defence.

97. I am satisfied beyond reasonable doubt that the accused is guilty of the crime of manslaughter. He caused the death of his mother by an intentional, unlawful and dangerous act, namely the infliction of a stab wound. There was no lawful justification for that act.

98. I acknowledge, as the Crown itself conceded, that there has been no evidence led that might establish a motive for this crime. It is possible that an altercation took place between the accused and the deceased. It is also possible that he stabbed his mother while playing out some form of drunken fantasy. It is best not to speculate. In either case, the stabbing would be deliberate and intentional, and the crime would be manslaughter.

99. The elements of manslaughter by unlawful and dangerous act are set out in Wilson v The Queen [1992] HCA 31; (1992) 174 CLR 313. For a person to be guilty of that form of manslaughter, the circumstances must be such that a reasonable person in the accused's position would have realised that he or she was exposing another to an appreciable risk of serious injury. It is not sufficient that there was a risk of some harm resulting, albeit not serious harm.

100. In my view, any reasonable person in the accused's position would have realised that stabbing a person in the abdomen with a knife of this sort, using severe force, al least posed an appreciable risk of serious injury. That is so whether the reasonable person is intoxicated to the degree that the accused was, or not.

101. I therefore direct that the accused be acquitted on the count of murder. I further direct that he be convicted, in the alternative, of the crime of manslaughter.

I certify that the preceding one hundred and one (101) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Counsel for the accused: Mr F.J. Purnell SC with Mr W Sharwood and

Counsel for the prosecution: Mr R.C. Refshauge SC. DPP with Mr J.G. Lundy

Solicitor for the prosecution: Director of Public Prosecutions