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[2025] NSWSC 1414
Supreme Court of NSW
2025-11-27
Garling J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: R v KL [2025] NSWSC 1414
Hearing dates: 10 November 2025;
13 November 2025;
18 November 2025
Date of orders: 27 November 2025
Decision date: 27 November 2025
Jurisdiction: Common Law - Criminal
Before: Garling J
Decision: (1) Return a verdict of not guilty of murder but guilty of manslaughter.
(2) Direct the entry of a conviction for the offence of manslaughter.
Catchwords: CRIMINAL LAW – Murder – Single count of murder – Where accused pleaded not guilty of murder but guilty of manslaughter – Trial by Judge alone
CRIMINAL LAW – Features of offending – Gang violence – Stabbing death by single stab wound – Offence committed at Sydney Royal Easter Show – Two groups of young males confronting each other in public – Post-offence conduct of the accused – Videos posted mocking the death of the deceased – Relevance of disrespectful post-offence conduct to the s 23A(1)(b) test
CRIMINAL LAW – Manslaughter – Alternative to murder – Intention – What was the accused’s intention at the time he inflicted the stab wound – Where Crown asserts that the accused had the intention to kill or cause grievous bodily harm – Where the accused was affiliated with a gang and may have been motivated by a desire for revenge – Where accused armed with a weapon at a public event – Where accused had witnessed the fatal consequences of a stab wound previously
CRIMINAL LAW – Manslaughter – Alternative to murder – Excessive self-defence – Whether the accused acted in excessive self-defence – Whether the accused believed that his actions were necessary in the defence of himself or others in the circumstances as he perceived them – Whether the accused observed the deceased to be a threat – Whether the accused’s group were the aggressors – Where PTSD impacted the accused’s perception of events
CRIMINAL LAW – Manslaughter – Alternative to murder – Substantial impairment – s 23A Crimes Act 1900 (NSW) – Substantial impairment because of mental health impairment or cognitive impairment – Whether the accused’s capacity to understand events, or to judge whether his actions were right or wrong, or to control himself, was substantially impaired by a mental health impairment or a cognitive impairment – Whether the impairment was so substantial as to warrant liability for murder being reduced to manslaughter – Application of community standards – Factors relevant – Young age and vulnerability of the accused – Diagnosis of PTSD – Accused’s history of involvement in gang activity and violence – Lack of developmental maturity
CRIMINAL LAW – Witness evidence – Eyewitness evidence – Expert psychiatric evidence – Where both psychiatric experts agree on mental health diagnosis but disagree on degree of impairment
Legislation Cited: Crimes Act 1900 (NSW) ss 4C, 23A, 419
Criminal Procedure Act 1986 (NSW) s 133
Evidence Act 1995 (NSW) ss 165, 191
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
Cases Cited: R v KL [2025] NSWSC 1398
Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573
Texts Cited: Not Applicable
Category: Principal judgment
Parties: The Crown
KL (Accused)
Representation: Counsel:
F Gray (Crown)
S Talbert (Accused)
Solicitors:
Director of Public Prosecutions (Crown)
Willcox Criminal & Civil Lawyers Pty Ltd (Accused)
File Number(s): 2022/198810
Publication restriction: Prohibition on publication of the names of the accused, the deceased, or any child witness as provided for in Division 3A of Part 2 of the Children (Criminal Proceedings) Act 1987.
The pseudonym “Darcy Moore” is used in relation to a juvenile involved in one incident.
On Monday 10 November 2025, KL (“the accused”) was arraigned before me on an Indictment dated that day.
The accused was charged with the murder of Uati Faletolu (“the deceased”), on 11 April 2022, at The Sydney Royal Easter Show (“the Easter Show”).
To this charge, he pleaded not guilty of murder, but guilty to the statutory alternative count of manslaughter.
The Crown did not accept the plea of the accused in full discharge of the Indictment and, accordingly, the trial proceeded.
The accused was arrested on 15 July 2022 and has been in juvenile detention ever since.
After a complex and somewhat lengthy series of procedural steps, the accused stood trial before a jury in the Supreme Court of New South Wales, commencing 28 April 2025 and concluding on 22 May 2025.
After about two weeks of deliberations, the jury was discharged without having reached a verdict.
On 4 November 2025, I granted the application, by the accused, for his second trial to be heard by a Judge alone. My reasons are set out in: R v KL [2025] NSWSC 1398.
Accordingly, the trial of the accused has been conducted by a Judge, without a jury. Section 133 of the Criminal Procedure Act 1986 (NSW) (”Criminal Procedure Act”) provides that in such a trial, the Judge may make any finding that could have been made by a jury on the question of the guilt of the accused.
The deceased, who was associated with a youth gang called “67” (“67”), was employed as a ride attendant on the Breakdance ride at the Easter Show in April 2022. The deceased was aged 17 at that time.
The deceased attended work at the Easter Show on 11 April 2022 in the afternoon. At around 7pm, he had an evening break from his work and arranged to meet his younger brother, Maselino, and some friends. He was due to recommence work at 8pm.
The accused, who was then 14 years and 6 months old, also attended the Easter Show on the evening of 11 April 2022, with his older brother, LL, his cousin, FL, and three friends.
The accused and his friends arrived at a carpark, P1, near to the Showground, at about 7.15pm. Together with his brother, cousin and friends, the accused made his way into the Easter Show, and the group were seen walking around the area. The accused was in possession of a knife at the time.
The street at the Showground, around which a significant number of sideshows and the Showbag Pavilion were clustered, was called Australia Street. It ran in a generally north-south direction. At the northern end of Australia Avenue, it intersected with a street called the Grand Parade.
Shortly prior to 8pm, the deceased was returning along the Grand Parade to resume his work. He walked, together with his group, onto Australia Avenue in a southerly direction, just past the intersection of the Grand Parade. At that time, the accused and his group were walking northwards along Australia Avenue in a direction towards the deceased and his group.
Two members of the accused’s group stopped when they encountered the deceased. At that time, the accused came to a stop and stood behind them. There were other males were standing behind him. The deceased was facing the two males. His companions stepped back slightly. As the deceased faced the two males from the accused’s group, quite suddenly, the accused, having taken his knife out of his pocket, reached through the gap between his two associates, and stabbed the deceased once in the chest region. The knife penetrated the deceased’s heart and caused his death.
Immediately after inflicting the single stab wound, the accused fled and eventually made his way out of the Showground, meeting up with members of his group and then returning generally towards his home.
Although valiant attempts were made to save the life of the deceased, they were unsuccessful. On postmortem, it was found that the deceased had a 4cm laceration to the posterior right ventricle of his heart. That laceration was the direct cause of his death and was inflicted by the accused when he reached forward and stabbed the deceased.
It is the Crown’s case that, after the events on the evening of 11 April 2022, the accused said things in a self-recorded video found on his mobile phone, and made electronic and written notes, in various forms, which came to the attention of investigating police, which contained admissions as to what he had done, and also provided evidence as to what his motivation was.
The accused admitted that he stabbed the deceased on the evening of 11 April 2022, at the Easter Show, and admitted that his deliberate act had caused the death of the deceased.
The accused denied that his conduct on that evening amounted to murder. He admitted that it amounted to manslaughter.
The accused identified several different pathways by which he contended he should be found guilty of manslaughter and not murder. First, the accused did not accept that the act of stabbing was carried out with the intention of killing the deceased, nor with the intention of causing him grievous bodily harm.
Secondly, the accused contended that, even if the Crown had satisfied the Court of the requisite intention to constitute murder, the Crown could not prove beyond reasonable doubt that, taking into account the accused’s state of mind at the time, he did not believe that it was necessary to do what he did to defend himself or someone else. The accused accepts that the Crown could prove that his actions in response to the threat he perceived were not reasonable, i.e., excessive self-defence. He submits that, on that basis, he should be found guilty of manslaughter and not murder.
Thirdly, the accused contends that, at the time of the stabbing, he was suffering from Post-Traumatic Stress Disorder (“PTSD”), and that his capacity to control himself was substantially impaired by that mental health impairment to such an extent as to warrant liability for murder being reduced to manslaughter.
Uati Faletolu, the deceased, was born in March 2005. At the time he died, he had just turned 17. He was one of four children of Janice Faletolu. He had two older sisters and a younger brother, Maselino (or “Mase”). At the time Uati died, Maselino was about a month away from turning 16.
At the time he died, Uati was living with his mother, his father and his siblings at a house in Quakers Hill. Previously, he had lived in Doonside for about a year. Uati attended Doonside Technology High School, until he left in Year 10. He tried working through the school’s student job pathway, but in 2022, he returned to Doonside Technology High School and resumed his education in Year 11. He intended to complete his Higher School Certificate.
About one year before he died, Uati commenced a relationship with Taylor Piliae, which continued as a serious one until his death.
Mr Paul Karbon, who, in 2022, was the Deputy Headmaster of Doonside Technology High School, gave evidence that Uati did not have too many issues whilst at school, and was well-liked. He described various minor incidents involving Uati which I do not regard as being at all relevant. Mr Karbon’s evidence in cross-examination was that, whilst the deceased generally was not a problem, as he came from Quakers Hill, he was on the Doonside “team” with respect to the “… Doonside and Mount Druitt issues …”. In his role at the school, Mr Karbon said that he was aware there were “simmering tensions” which were a source of some friction, or conflict, between students from Doonside and students from Mt Druitt, although he was not aware of any information about the deceased being involved in any conflict.
Leading up to, and at the time of, the relevant events, I am satisfied that there was a “gang” of teenagers who came from, lived in, or else identified with, the suburb of Doonside, the postcode of which was 2767, hence the name 67. Whilst the entry criteria, and membership rules of this gang, if any, were not addressed by the evidence, those who regarded themselves as members of the gang, or else joined in with various activities of the gang, had a sense of brotherhood and unity. They seemed to have a concise aim, namely, to be the dominant gang in the general area of southwestern Sydney.
They referred to themselves when engaged in gang activities as 67, or as the deceased said in a video he filmed of himself “… I was full like 67 motherfucker …”.
In the evidence, this was not the only occasion when an expression was used which contained the gang’s name, 67, combined with the words “motherfucker”. Maselino Faletolu called it out when he was arrested in the circumstances more fully described below.
The accused, who was generally described in the trial by a pseudonym “KL”, was born in September 2007. At the time that he stabbed the deceased, he was 14 years and 6 months old.
By reference to the histories of his upbringing, and adolescent years leading up to the Easter Show, which the accused gave to Dr Ellis and Dr Eagle, respectively, which I am persuaded were generally accurate, I am satisfied on the balance of probabilities of the following matters.
KL is one of five children born in Australia to parents of Tongan heritage. He has one older and two younger sisters, and one older brother. His father drank alcohol to excess. He worked as a spray painter but had ceased work by 2022. His mother worked in the aged-care industry, and on night shifts in the retail industry.
From the age of about 7 years, whilst living at home with his parents and siblings, he was a witness to, and a victim of, domestic violence. His parents separated on account of his father’s violence towards his mother. When he tried to stop his drunk father hitting his mother, he too would be physically assaulted by his father, suffering bruising and abrasions as a result. On occasion, police were called for assistance.
For some years during his parents’ separation, his mother was working full‑time and was not around in the house for periods of time. Ultimately, about one or two years before the stabbing, his parents reconciled and resumed cohabitation.
His education progressed seemingly normally through primary school, although on two occasions he was suspended for fighting. He attended Chifley College in Mt Druitt for his high school education. His attendance at high school was poor. He regularly truanted. It seems likely that Years 8 and 9 were only occasionally attended, if at all. He was enrolled in Year 8 in 2021 and in Year 9 in 2022.
Over the course of his schooling, the accused was involved in, or aware of, three significant incidents involving violence. Later in this judgment, at [94]-[113], I refer to these incidents, the facts of which were the subject of agreement.
However, according to the histories given to the two expert psychiatrists, there was another significant violent episode in which the accused was a victim (“the football training incident”). In February 2021, when he was 13 years old, whilst on his way to football training, the accused was accosted by a group of other boys. He tried to fend off his assailants. He was stabbed in his left bicep. The wound required stitches.
At the time of the football training incident, the accused told Dr Eagle that he was with boys who were part of RFA. He said that his assailants believed him to be a member of RFA. He said that he felt supported by his friends from RFA whilst he was in hospital and thought that he “may as well” get involved in the group.
According to the officer-in-charge of the investigations, Detective Inspector Joseph Maree from the Homicide Squad of the NSW Police, the gang known 67 was a gang associated with the suburb (and postcode) of Doonside.
He also said that there was a gang called Ready for Anything (or “RFA”) which was associated with Mt Druitt. At the time that he gave evidence, he had not heard of the existence of a division of RFA, referred to by the accused as “RFA Tribal”, apart from the accused mentioning it in a telephone call.
He said that, as at April 2022, there was a history of antagonism between these two groups, with a number of violent encounters occurring between members of RFA and members of 67.
Part of that history of antagonism included the group mocking each other online using social media. The officer-in-charge also said that, from his knowledge, the mocking had occurred through the use of rap music lyrics or drill rap.
The officer-in-charge said that drill rap was a style of rap music which contains themes of violence, mockery or boasting, which could cover, by its words, both true events and exaggerated events.
Detective Inspecter Maree agreed that some of the writings of the accused, which had been downloaded from his phone after his arrest were, in general terms, consistent with the type of slang, or rhymes, seen in drill rap or rap music used by gangs.
I accept all of this evidence. It was not disputed. It was generally consistent with such evidence on this topic that Maselino Faletolu was prepared to give.
It is necessary in a Judge alone trial for the Judge to set out the principles of law which are applicable, and which bind the Judge in coming to any decision. As well, if the law requires a warning to be given to a jury, then a Judge is to take that warning into account in dealing with the matter: s 133 of the Criminal Procedure Act.
I will now set out some of those principles of law which are applicable, and which will be followed and applied, by me, throughout this judgment. Others will be referred to later in the judgment.
The burden of proof of the guilt of the accused wholly rests on the Crown. That onus rests upon the Crown in respect of each element of the charge on the Indictment. The Crown must prove the guilt of the accused and prove it beyond reasonable doubt.
There is no onus of proof on the accused. He is presumed to be innocent unless and until the Crown proves beyond reasonable doubt that he is guilty. The accused has made some admissions of fact and has also made submissions via his counsel. By so doing, the accused does not assume any onus of proof. The onus remains on the Crown throughout the trial. The fact that some, or all, of the evidence put before the Court by the accused may not be accepted, does not affect the Crown’s onus of proof, and it does not relieve the Crown from proving the guilt of the accused beyond reasonable doubt.
Although the Crown must prove the guilt of the accused beyond reasonable doubt, before making a finding of fact I need only be satisfied of proof of such fact on the balance of probabilities. Neither party submitted that any fact was an “intermediate fact”, thereby requiring proof beyond reasonable doubt: see Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573.
I must consider and assess the evidence given by the various witnesses and decide whether they are telling the truth, whether the evidence is reliable, and whether I accept their evidence. My ultimate decision as to what evidence I accept and what evidence I reject may be based upon a range of matters, including the content and the context of what a witness had to say, the manner in which the witness said it, and the general impression which any witness made upon me in giving evidence.
In considering whether to accept the evidence of a witness, I am not obliged to accept the whole of the evidence of any one witness. I may, if I think fit, accept part, and reject part, of the evidence of the same witness. In other words, the fact that I do not accept a portion of the evidence of a witness does not mean that I must necessarily reject the whole of that witness’ evidence. I can accept part of the evidence of a witness if I think it is worthy of acceptance.
Two witnesses, Dr Van Vuuren and Dr Kerri Eagle, were relied upon by the Crown to give expert evidence in its case. The defence called Dr Andrew Ellis to give expert evidence.
An expert witness is a person who has specialised knowledge, based on their training, study or experience. Because they have such knowledge, they may express an opinion on relevant matters that fall within their expertise.
To the extent that there is any conflict within, or doubt about, the evidence of an expert, or where experts disagree, it is for me to decide which part, or parts, of the evidence of any of the experts I accept, and which part or parts I reject. I need to keep in mind, as I do, that the expert evidence relates only to a part of the case and, whilst it may be of assistance to me in reaching a verdict, I must reach my verdict having considered all of the evidence which is applicable.
If, having given the matter careful consideration, I do not accept the evidence of any of the experts, then I do not have to act upon the evidence of the expert in question.
The accused did not give evidence in response to the Crown’s case. However, he did tender relevant material, and he called Dr Andrew Ellis to give expert evidence.
I remind myself that the Crown bears the onus of satisfying me beyond reasonable doubt that the accused is guilty of murder as charged. I leave aside, of course, the issue raised by the accused of substantial impairment, which is a partial defence arising from the provisions of s 23A of the Crimes Act 1900 (NSW) (“the partial defence”).
With respect to the Crown case, the accused bears no onus of proof in respect of any fact that is in dispute. Although the accused is entitled to give evidence, there is no obligation on him to do so. The accused is presumed to be innocent until I have been satisfied beyond reasonable doubt by evidence led by the Crown that he is guilty of the offence charged. It follows that the accused is entitled to say nothing and make the Crown prove his guilt to the high standard required.
The decision of the accused not to give evidence cannot be used by me, in any way at all, in my consideration. It certainly does not amount to an admission of guilt and cannot be regarded in that way.
I cannot draw any inference or reach any conclusion based upon the fact that the accused did not give evidence. I cannot use that fact to fill any gaps that I might think exist in the evidence tendered by the Crown. It cannot be used in any way to strengthen the Crown case or to assist the Crown to prove its case beyond reasonable doubt.
Nor can I speculate about what the accused might have said in evidence had he chosen to give evidence.
Insofar as the accused bears the onus of establishing the partial defence, the directions which I have set out above relating to the Crown’s case, apply equally to this partial defence.
The fact that the accused has not given evidence does not mean that the partial defence has not been, nor cannot be, made out. He has no obligation to give evidence.
The question of whether the partial defence has been made out will depend upon a consideration of all of the evidence which is relevant to the issue. The fact that the accused has not given evidence cannot be used to draw any inference adverse to him, or to fill in any gaps in the evidence relevant to the partial defence.
Simply put, the fact that the accused has not given evidence is entirely irrelevant to my consideration of any of the issues posed for my decision in this trial. I must, and will, put it out of my mind completely in the course of my deliberations.
The Crown submitted that I should give myself a direction pursuant to s 165(1)(a) of the Evidence Act 1995 (NSW) (“Evidence Act”), with respect to the hearsay evidence which has been tendered, respectively, in the cases for the Crown and the accused.
Both Dr Eagle and Dr Ellis gave hearsay evidence of the histories given to them by the accused. The hearsay evidence was included in their expert reports, which became exhibits, insofar as the accused gave them an account of various facts, matters and circumstances. Reference to these hearsay accounts were repeated throughout the oral evidence.
Neither party objected to the history given by the accused to Dr Eagle and Dr Ellis being admitted into evidence. Neither party sought that any limitation be placed upon the use of the evidence as a condition of its admission. Both parties relied upon parts of it.
Of itself, and by its nature, hearsay evidence may be unreliable, and I acknowledge that this potential unreliability must be taken into account when considering it. As well, the hearsay accounts given to each of the experts by the accused, whilst of facts, matters and circumstances which are relevant, were not sworn or affirmed.
As such, this hearsay evidence represents a possible version of the facts and must be given such weight as may be appropriate, in comparison with the facts which are established by the evidence which has been given on oath or affirmation.
I emphasise that this approach does not involve any adverse criticism of, nor the drawing of any adverse inference against, the accused. Rather, it is directed towards understanding the weight to be given to the hearsay evidence, in the context of all of the evidence in the trial.
The Crown’s case is one of murder. In order to succeed in proving its case, that the accused murdered the deceased, the Crown must persuade me of each of the following elements beyond reasonable doubt:
that on 11 April 2022, the accused, KL, stabbed the deceased, thereby causing his death; and
that the accused’s conduct in stabbing the deceased was deliberate (i.e., not accidental or involuntary); and
that, at the time of the stabbing, the accused intended to kill the deceased, or else intended to cause him grievous bodily harm (i.e., really serious physical injury); and
that the accused was not acting in self-defence, i.e., he did not genuinely believe that his conduct in stabbing the deceased was necessary in the circumstances as he perceived them to be at the time to defend himself or another person.
In the circumstances of this case, before entering a conviction of murder, the accused must have failed to persuade me on the balance of probabilities of the partial defence that, at the time he stabbed the deceased, thereby causing his death, his capacity to control himself was substantially impaired by a mental health impairment, namely, PTSD, and that the impairment was so substantial as to warrant liability for murder being reduced to manslaughter.
If I am not persuaded of any of the elements of murder, set out in [88], which remain in issue, then the appropriate verdict is one of manslaughter.
If the Crown has persuaded me of each of the elements which are required, and the accused has failed to persuade me that the partial defence should result in a reduction of his liability for murder to manslaughter, then the appropriate verdict is one of guilty of murder.
A Statement of Agreed Facts was tendered to the Court pursuant to s 191 of the Evidence Act. Leave was not sought by either party to contradict or qualify any of these Agreed Facts: see s 191(2)(b) of the Evidence Act. Evidence is not required to prove any of the Agreed Facts: see 191(2)(a) of the Evidence Act.
These Agreed Facts provided detail of three violent incidents involving either the accused, or else members of RFA. I accept the Agreed Facts.
The accused travelled to Shalvey with a group of friends, some of whom were RFA members. Whilst in Shalvey the accused and four of his friends walked to a park. They were approached by another group of approximately 10 males, who arrived in cars, bikes and on scooters. One member of the other group was armed with a hammer.
One of the males from the other group punched the accused. Someone from the other group yelled out “BFL on top”, in an apparent reference to the Southwest Sydney gang, “Brothers for Life”.
The accused entered the yard of a friend and picked up a Totem Tennis pole with a tennis ball attached. The accused saw that males from the other group were armed, and hit one of the males with the pole. The accused was also approached by other members of the group who had chased him, punched him and stabbed him in the upper left thigh, the left forearm, and right forearm.
The accused was treated at Westmead Children’s Hospital. He provided a recorded statement to police. A number of persons were subsequently charged.
The accused was present at the home of the Moore family on the evening of 1 September 2021. Darcy Moore, who is also known as “Orbski”, was aged 17 years old.
A group of five males arrived at the Moore house. The males were associated with a gang called “MOB”, an acronym for “Money Over Bitches”. Members of the MOB gang were armed with knives when they arrived, and some were wearing balaclavas, or face coverings.
The MOB group called out for Darcy Moore, and those with him, to come outside. They later left the area and contacted Darcy Moore by messages and video chat in an effort to compel Darcy Moore and his friends to come outside.
Darcy Moore and his friends left the house, with the two groups physically engaging in the street outside the boundary of the Moore house. Darcy Moore and his friends were armed with golf clubs.
Darcy Moore, who was also armed with a knife, was stabbed on a nearby street by a member of MOB.
The knife entered his diaphragm and pierced the right ventricle of his heart. He died as a result of this injury.
The accused was injured during the course of the confrontation, sustaining a laceration to the head, for which he received hospital treatment.
I note that the photographs which became Exhibit AA show the head wound of the accused.
I am well satisfied that this was a very traumatic event for the accused, just as he was about to have his fourteenth birthday.
The McCarthy family live in Doonside. Mrs Sou McCarthy is the maternal aunt of Uati Faletolu, and the mother of Star Faletolu.
The McCarthy family included Mr Anthony McCarthy, his son Star Faletolu, Waka Faletolu and other family members who resided in the family home.
Star Faletolu, the cousin of the deceased, was aged 19 years old in April 2022. Some younger members of the household are associated with 67.
Six members of RFA, including the brother of Darcy Moore, entered the house at approximately 2.20am. The accused was not one of the RFA members who were present and/or involved in this incident. All of the members of RFA present were aged under 18 years of age.
Two of the members of RFA (Edward Coleman and Ethan Oti) stabbed Star Faletolu multiple times whilst he was in bed, resulting in a stab wound to his buttocks. His parents came to his aid. Mrs McCathy was stabbed once, as was Mr McCarthy. None of the stab wounds were life threatening.
Star Faletolu and Waka Faletolu armed themselves with golf clubs and pursued the intruders out of their home into the street.
There seems no doubt that the accused was aware of this incident, although the extent of his detailed knowledge is unclear.
The evidence led in the trial has satisfied me of a further incident of violence which happened on 10 April 2022 at the Olympic Park train station, where the deceased was, as he made his way home after working at the Easter Show.
Whilst at the Olympic Park train station, the deceased had a physical altercation with a number of males, whom he identified to others as being “from Mounty”. The deceased used this expression often to refer to members of the RFA gang.
The deceased turned to social media and made disparaging comments about gang members “from Mounty”, and the fact that he had beaten those members.
The deceased told his mother, who picked him up from the vicinity of the Olympic Park train station, that “… three guys had come out of nowhere and punched him in the head for no reason …”. He also described it as “getting jumped”, when later speaking to his mother.
Mrs Faletolu said that she had driven to Olympic Park to collect the deceased after receiving a phone call “sometime before 11 o’clock that night”. The deceased asked his mother to pick him up because he had been told by an employee at the railway station that he could not catch the train home.
The deceased sent a number of Snapchat messages to a person who has not been identified. He has been given the description “unknown P3”. At 7.30pm on 10 April 2022, the deceased sent this message to unknown P3:
“Bruh, I pulled up like 6 cunts and they like yeh I’m from mount blah blah blah and then I go come have a crack and one cunt gets confident I dropped him and then another comes I dropped him then the rest are like that’s it fkn pussys”
“Unknown P3: who was it
Deceased: Pumping all for ur Mum and Dad
Unknown P3: idk [I don’t know] but u know when u just know they from mounty
…
Unknown P3: when they’re from mounty.
Deceased: Yea sweet cause heaps of them will come after getting dropped tonight
…
Deceased: Every break n shit I’m gonna go pull up more
Deceased: I fkn hate ‘em
…
Unknown P3: you all good
Deceased: Just wanna fight
Deceased: pisses me off that they think they heavy n shit”
“Unknown P3: you allgood my brother
Deceased: Yea g looking around for these cunts
Unknown P3: eetswa let me kno
…
Deceased: Bruh I cracked them again
Deceased: I’m not allowed to catch the train anymore
…
Unknown P3: how you gonna get home”
The time of these messages, on the evening of 10 April 2022, is broadly consistent with the evidence of Mrs Janice Faletolu about when she was telephoned by the deceased with a request to collect him from the Easter Show as a result of his being unable to catch the train. The contents of the messages also, to some extent, corroborate the account given by the deceased to his mother, which I have described in [117] above.
There is no evidence that any of these messages were seen or read by anybody other than the deceased, and unknown P3. There is certainly no evidence that any of the Snapchat messages referred to as passing between the deceased and unknown P3 ever came to the attention of the accused, or any of his associates.
These Snapchat messages, and a series of short self-recorded video shots taken by the deceased, and later retrieved from his mobile telephone, demonstrate that, in the days preceding 11 April 2022, the deceased felt an antagonism towards “Mounties”, that is, people from Mt Druitt, which was an expression meant to include members, or associates, of RFA.
As part of those antagonistic feelings, the deceased was indicating that he was prepared, if he encountered anyone whom he understood to be part of RFA, to engage in a violent physical altercation with them.
The messages, the videos, and these demonstrably antagonistic attitudes to members or associates of RFA, are pointed to by the accused as being significant contextual facts to the encounter which occurred on the following day, and also as evidence from which the Court could draw inferences about the conduct of each of the deceased and the encounter with the accused on the evening of 11 April 2022.
The deceased worked a shift between 9am and 12pm on 11 April 2022. He was driven to the Showground by his mother, who also picked up him when his shift was completed.
The deceased returned later for a second shift, which was due to commence at 5pm on that day. During the course of his shift, at 6.45pm, the deceased sent a message to a friend “Cano”, an abbreviation for his friend Cain Raeburn. The deceased’s messages to Mr Raeburn included the following: “Niggas behind yours”, “coming up”, “ask where they from”, “wearing white and black” and “two guys in hoodies one white one black coming up behind yours”. The deceased was clearly on the alert for the possibility that rival gang members would be at the Easter Show.
The accused and his associates from RFA were not present at the Easter Show at that time and so could not have been the individuals to whom the deceased was referring.
Maselino Faletolu, having arrived at the Easter Show, met up with the deceased for the first time at about 6.15pm at the ride where he was working. At that meeting, the deceased handed a folding knife to his brother, which was about 10cm in length.
Maselino, who was a barely credible witness, gave this evidence about what was said by the deceased when he handed a knife to him:
“Q. Did he say why he thought you should have a knife with you?
A. No.
Q. Didn’t he tell you that he’s worried that people from RFA, and Mt Druitt, are likely to come to the show, and he wanted you to have a knife in case anything happened?
A. I don’t remember him saying that but, but previously before that Easter Show, there was heaps of fights going on. So, of course, he just said for me to be safe.
…
Q. I suggest that you knew, or your brother had told you that he thought heaps of people were going to turn up from RFA at the Easter Show?
A. Never specifically said RFA was going to be there nor turn up there. He just said, ‘There’s going to be a crowd of people that might be here, so be safe’.”
“Q. Did he tell you why he gave it to you?
…
A. He didn’t give me a specific reason on why he gave it to me. He’s just saying for me, due to previous Easter Shows before that with all the fights happening, to be safe.
…
Q. I’m putting to you that you actually knew something was going to go down that night.
A. Well due to the previous Easter Shows and how many fights there were, I’m sure there was something that was going to happen.”
I accept that a conversation generally in accordance with these versions took place. The deceased was concerned to provide his younger brother with some protection, in case there was a violent encounter whilst he was at the Easter Show.
At about 7pm, the deceased took a break. He met his younger brother, Maselino, near some food stalls in, or around, the area of Australia Avenue. He also met a number of other friends.
According to Cain Raeburn, he and his friends, including a person called Heath Gilchrist and a person he referred to only as “Riley”, met up sometime after 7pm with the deceased, and walked around the Showground area. Eventually, shortly before 8pm, they returned along the Grand Parade in an easterly direction and turned into Australia Avenue to walk in a generally southerly direction.
The accused, with his brother, his cousin FL, and four other friends, arrived at the P1 carpark near to the Showground, at about 7.15pm. They arrived in two cars and are seen walking away as part of a loose group from the P1 carpark at about 7.22pm. Entry tickets were purchased, and the accused entered the Easter Show shortly after 7.30pm.
The movements of the accused and his associates are able to be seen from CCTV footage which covers many areas within the Showground.
The group are seen to walk around the Showground in a number of different areas. They do not seem to be engaged in a purposeful walk, i.e., they were not, seemingly, engaged with an aim of arriving at a particular point at a particular time. As is apparent from the CCTV, there is nothing aggressive or out of the ordinary about their behaviour. The group, of which the accused was the youngest, seems simply to be a group walking or strolling around the Easter Show.
Although there were seven people in the group which arrived at the Easter Show, of which the accused was one, at no time were they moving around the Easter Show as a tight group of all seven people. Rather, they were walking or strolling in small groups – twos or threes – within proximity of each other. Occasionally, some or all of them would stop, apparently to consider where they might go, or in which direction they should proceed.
Shortly prior to 8pm, the accused and his companions walk north along Australia Avenue towards the intersection with the Grand Parade. They are seen walking generally along the centre of Australia Avenue. They then walk from the centre of Australia Avenue in a diagonal direction towards the Grand Parade.
On the south-western corner of the intersection of the Grand Parade and Australia Avenue is a sideshow called “Circus Clowns”. The accused and his group reach a point on Australia Avenue about 3 metres in front of the Circus Clowns.
At about the same time, the deceased and his group walked east along the Grand Parade towards the intersection of Australia Avenue. They then walked in a diagonal direction, heading generally southeast into Australia Avenue, where the two groups come across each other, and stop in close proximity. They generally remain stationary. It is convenient to describe this as “the confrontation”.
“… things happened really quickly, and they both started fighting together, the two groups.”
She agreed that it was her assessment that both groups were being aggressive, although she suggested that her impression was that the group containing the accused was slightly more aggressive.
Another eyewitness, Ms Allen, gave evidence of the confrontation. She said that she heard some male voices swearing, and then she saw a number of males punching at each other. Whilst she heard the yelling, she was unable to say from whom it came and was unable to give more than a general impression of the words that were said.
The deceased’s brother, Maselino, was present on that evening and was part of the deceased’s group of companions. As the deceased turned into Australia Avenue, Maselino was following behind him, but was not in his immediate proximity. Maselino’s evidence was that, as he turned the corner into Australia Avenue, he saw his brother in a fight. He said he saw a “little” brawl going on. He said he saw his brother “throwing hands” and punching people. He did not notice what happened to his brother after that. He did not hear any raised voices. He kept going, and when the two groups scattered, he ran in a southerly direction along Australia Avenue, chasing after one of the accused’s group.
Whilst Maselino was engaged in the chase, he was arrested by a police officer. At that time, he was carrying the knife which the deceased had given to him.
A video taken of his arrest contains a record of him, although a little hard to decipher, yelling out the words “… 67 motherfucker …” amongst other things.
In the meantime, a number of bystanders come to the aid of the deceased whilst he is on the ground. They start providing first aid. Help is summoned. Police and St Johns Ambulance Brigade members arrive and attempt to provide assistance to the deceased. It is clear that he is bleeding from his chest area. Officers of NSW Ambulance attended the scene, and attempts were made to stem the bleeding, and to save the life of the deceased.
Shortly after 8.05pm, a critical care paramedic and an emergency specialist medical practitioner were alerted to attend the scene and began to approach the Easter Show. They undertook significant procedures on the deceased to try and stem the bleeding. The details of the treatment are unnecessary to be recorded.
I am well satisfied that those in attendance did everything possible to try and save the life of the deceased. An ambulance left the scene with the deceased just before 9pm and took him to Westmead Hospital. The deceased died at about 9.30pm that evening, shortly after arriving at the hospital.
Dr Rianie Van Vuuren, a forensic pathologist, performed an autopsy on 13 April 2022 on the deceased.
Dr Van Vuuren’s evidence is that, during the postmortem examination, she identified a single stab wound in the right upper abdominal area of the deceased, with a 65mm track extending upwards and backwards towards the mid‑line. She observed that the track extended through the diaphragm and into the heart in the right ventricle on its posterior aspect. Dr Van Vuuren observed that the track extended into the posterior aspect of the right ventricle, where it measured 4cm. The right ventricle is the lower of the four separate chambers of the heart and the one closer to the mid‑line.
Dr Van Vuuren’s expert opinion, which was not challenged by the accused, was that the sole cause of death was the stabbing, with the blade of the weapon travelling into, and piercing, the right posterior ventricle.
I accept this evidence. I am satisfied beyond reasonable doubt that the accused’s act of stabbing the deceased caused his death.
In the immediate aftermath of the stabbing, the accused is recorded on various CCTV cameras running south along Australia Avenue. He seems to attempt to exit the Showground near the Ferris Wheel, but returns to Australia Avenue, and ultimately enters the Showbag Pavilion which is not far from the exit from the Showground at Murray Rose Avenue.
Having entered the Showbag Pavilion, the accused removes his white hoodie and discards it. Thereafter, he is seen wearing a black t-shirt. Whilst in the Showbag Pavilion, the accused records a short video, in which he speaks the following words:
“G G 67 motherfucker
Thought you could pull us up motherfucker
Ha ha”
That video was retrieved from his mobile phone after his arrest. The evidence does not reveal whether that self-recorded video was distributed to anyone or published more generally on the internet.
The accused meets up with his brother, LL, and they attempt to leave the Showground. One of them, in the presence of the other, told a security guard, Mr Singh, as they were trying to exit the Showground through a restricted area, that they had to leave quickly because their mother had been admitted to Westmead Hospital, about which they had just received a telephone call. Mr Singh directed the men back to Gate 13, which was the exit gate at the southern end of Australia Avenue near the intersection of Murray Rose Avenue.
The men re-entered the Showbag Pavilion but tried again to exit without going through Gate 13. They were intercepted by Mr Singh again and told that they could not exit from any gate in the area where they were. One or other of the men repeated that their mother had just been admitted to hospital because she had had a stroke. The two men seemed to Mr Singh as though they were brothers and they were very panicked.
After their interactions with Mr Singh, the accused and his brother, together with two of their associates, are seen leaving the Easter Show at the exit near the intersection of Australia Avenue and Murray Rose Avenue. The group of men are seen to walk back in the direction of the P1 carpark.
The two vehicles in which the accused, his brother and his associates arrived, are seen leaving the P1 carpark at 8.43pm and 8.47pm, respectively.
Thereafter, in the period between 20 May 2022 and 11 July 2022, authorised telephone intercepts recorded the accused speaking to different people at different times.
As well, it appears from the download of the mobile phone of the accused after he was arrested, that, respectively, on 4 July 2022, 6 July 2022 and 9 July 2022, he makes various entries in the Notes app on his mobile phone.
On 15 July 2022, the accused was arrested by police.
Finally, a notebook in which the accused has written various entries, was seized by police from the Reiby Juvenile Justice Centre on 12 October 2022.
It is convenient to draw attention to some of the contents of the telephone intercepts to which I have just referred.
“TM: Hey did you see that … song on your story that you posted?
KL: When?
TM: Last night and I replied I was like what the fuck.
KL: Yeah.
TM: Is that actually about the guy that got stabbed at the Easter Show?
KL: Yeah.
TM: That’s bad, mums that’s bad.
KL: I liked it.
TM: That’s bad. Why don’t you like, Mase and all of them?
KL: Bro they’re flops bro.”
“TM: Oh yeah I remember like Orbs or whatever.
KL: Yeah that guy.
TM: Yeah
KL: And then Mase and that were full mocking him. And now Mase’s brother died we’re mocking him back, karma.
TM: [laughs]
KL: Bro karma, big karma for him.
TM: [laughs]
KL: Look watch this … [indistinct] I’m gonna send you a screen shot of him talking shit about him.
TM: Of him talking shit about your mate?
KL: Yeah …”
“KL: Ahhh do you, do you know there’s like a tribal thing now?
UF: Tribal?
KL: Yeah it’s called the RFA tribal.
UF: What?
KL: Yeah, um, so to get in you, you have to um stab four people …”
“KL: Yeah I’ll tell her don’t, I’ll be like for the gang, that’s what we always say, we always say for the gang.
UF: [laughs]
KL: Whoever … it’s for the gang, you have to do anything for the gang, so I’m …”
This is another conversation between the accused and an unidentified female.
The unidentified female suggests to the accused that he had been “jumped” once. He denied that. She pressed him, saying that he had been jumped in “Mounty … in Doonside, in Blacktown”.
He responded with these words:
“KL: Are you stupid or stupid? I’ve never been jumped in Mounty, I never got jumped in Doonside, I never, I never got jumped in Blacktown. I done a stabbing at Mounty, I done a stabbing at Doonside, I done a stabbing at Blacktown.
…
KL: Bro so I think you got the wrong person mixed up cause I jumped one of your Rooty Hill people in Mounty as well. And I cracked one of your Rooty Hill boys at Mounty as well.”
In this phone call, a suggestion is made by the accused to an unidentified female in the presence of an unidentified male, that the unidentified male could come and collect the accused on the next day “… so we can go get Mase”.
The plans do not come to fruition, as the female is unable to drive the accused on the following day.
This phone call discusses the fact that a person identified as “Ethan” had left RFA. The conversation turns to the unidentified female, asking the accused why he joined RFA.
The accused describes the time when he joined as being related to a stabbing of Ethan. He suggests that it was about 12 months after Ethan recovered partially from the attack upon him, that he joined RFA. The accused says that he was pretty sure that Ethan got stabbed when he (the accused) was in Year 7.
I note that timing discussed in this telephone call is consistent with my conclusion, expressed earlier at [46], that the accused joined RFA after the football training incident in February 2021.
The accused has a phone call with an unidentified female. By that stage, he had become aware of the warrant for his arrest, and told the unidentified female that he was living with Henny. Henny was identified by Detective Inspector Maree in evidence as Hendrix Polutele, who was, at the time, a member of RFA.
The conversation includes further reference, on the accused’s part, to the fact that he has a number knives, and has given them various names. It includes this statement:
“KL: And Barbie, Barbie, Barbie was the one, I used Barbie on thingy, on that, on that guy at the Easter Show.
UF: No you didn’t.
KL: Mums. [pause] That’s, that’s, that’s why I have a warrant. I told you.
UF: You killed Uati?
KL: Yeah. Well basically yeah but, yeah … [pause] see … see you’re thinking now.”
“KL: Nah I’ll tell you. I’ll tell you. So basically I went to the Easter Show to go on rides yeah, I was having a fun time, you hear me?
UF: Mmm.
KL: And then I turned the corner Uati, Mase and all, all six of the boys. There was more of them then more, there was more of them, more, see they had more boys than us. Yeah?
UF: Mmm.
KL: And then, and then after that, after that were like, what where youse from, youse from Mounty? I was like yeah. Then he said what, me and you have a crack and I just, I pulled out the knife and I stabbed him and then, yeah. Somehow he died. I don’t know how he died. You know what I mean?
UF: Mmm.
KL: So I stabbed him. I’ve, I ran back, shaped up and then I saw security coming and I ran off. And then went jumped in a car. Went and suddenly everyone was messaging saying … Uati got stabbed …, I was just acting dumb. As soon as I got home freakin, umm, what’s it called, the boys called me and said, … fuck Uati died, … . Then I told ‘em, let’s link, my boys and I told him then fuck, yeah … . And that’s the story. Basically it wasn’t my fault.
UF: Huh?
KL: Basically it wasn’t my fault, he started it.”
“Yea
His heart beat stopped
Keep that casket locked
If you chill with them you’ll be jack in a box
Free tee and s still on them locks
Aim and swing You ain’t making it home
I went to show to jump on rides
Turned out I took someone’s life
I don’t pac man Only pack uati
But the ambos couldn’t prevent him from dyin”
This entry was created at 9.52pm on 4 July 2022 and was modified at 3.16am on 6 July 2022. The extent of the modification is unclear from the evidence.
The source information records that the Note has been deleted by being sent to the “Trash” folder. It is not clear when that occurred.
“Aye
Fuck the beat I didn’t beat him up I took his soul
I scored that goal
Wasn’t stealing whips his life I stole
How’s the sixes hiding in there block
how’s that called hood patrol
Swing my blade and bring it back in blood
Don’t make me lose control
He was talking tough on net
His dead and now we roll him up
I wanted mase got uati instead
We call it hole in one”
That entry was created at 5.21am on 6 July 2022 and was modified on 13 July 2022 at 4.24pm. It is unclear to what extent the Note was modified.
This note also records that it has been deleted by being sent to the “Trash” folder.
“Pulled up in a merc and Merced him
Do you think I give 2 fks about uati
Uati should’ve worked at maccas
Now his dead we smoke him up”
This note was created at 11.58am on 9 July 2022, and modified at 9.38pm on the same day. It also records that the note has been deleted to the “Trash” folder.
With respect to the three notes, the evidence was that when the accused’s mobile telephone was seized, police officers undertook a Cellebrite download of the contents of that phone. I was told that the Cellebrite download is an extraction program used to obtain the data from a particular phone, and in this case, the Notes folder of the accused’s phone was downloaded. The Cellebrite download can recover data which has been deleted, providing that the data has not been overwritten.
No evidence was given, nor any submissions made, about the fact that the documents containing the results of the Cellebrite download of the Notes function recorded that the Notes had been deleted by being moved to the “Trash” folder. It cannot be known when or why the Notes were deleted.
As well, there is no information as to whether the contents of the Notes were ever published to anyone in particular, or else more broadly on the internet.
As earlier noted, police, pursuant to the execution of a search warrant on 12 October 2022, recovered a notebook in which the accused, whilst in detention after his arrest, had made notes.
One such note, which is undated, includes the following words, leaving out the words that have been struck through by the accused:
“I don’t know if things
Will ever change
They took my bro and it can’t be the same
We took his bro and they can’t even
Can’t even sleep today
I be were the killers stay
In mounty keep a strap
To keep me safe
I’ll swing my blade right at
Your face
So keep the verbal far away”
The contents of the intercepted telephone calls, the Notes retrieved from the accused’s mobile phone, and contained in his handwritten diary, are all relied upon by the Crown as being relevant to the motive for the behaviour of the accused when he stabbed the deceased; as being relevant to establish the thinking of the accused about his membership of the RFA gang, and what it obliged him to do; and generally with respect to the intention of the accused when he stabbed the deceased.
The Crown submits that, unlike the hearsay evidence given to the expert psychiatrists about what they were told by the accused, the evidence is more likely to reflect the true thoughts and feelings of the accused, particularly because he did not know that his telephone calls were being intercepted.
I note, however, that the Crown did not tender any Tendency and Coincidence Notice with respect to this, or any other evidence, and did not rely on any tendency that the accused had to act in a particular way or to have a particular state of mind. Accordingly, this evidence, although admitted for the purposes I have described above, cannot be used by me against the accused to prove any matter for which the Crown was required to serve a Tendency Notice: s 97 of the Evidence Act 1995 (NSW).
It is apparent from the evidence and the submissions that there is a significant issue in this trial concerning the psychiatric state of the accused at the time he stabbed the deceased.
I have earlier noted that both psychiatrists agreed that the accused suffered from a conduct disorder and PTSD. Both of these disorders are identified as such in DSM-5.
Neither psychiatrist expressed a view as to whether the conduct disorder constituted a “mental health impairment” within the meaning of s 4C of the Crimes Act. In the absence of such expert evidence, I am not prepared to conclude that the conduct disorder amounted to a mental health impairment for the purpose of the partial defence.
Both psychiatrists expressed the view that the PTSD would be considered to be a “mental health impairment” within the definition in the Crimes Act (and, in the case of Dr Eagle, within the identical definition contained in the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)).
Both psychiatrists were of the view that the PTSD was clinically significant for diagnostic purposes.
Although the conduct disorder which was diagnosed was not said, of itself, to be a mental health impairment, in the assessment of the accused and his psychological and psychiatric state at the time of the stabbing, the conduct disorder is not irrelevant, nor is it to be ignored.
Dr Eagle prepared a report for the Crown on 20 August 2024. She had a variety of sources of information, not all of which have been tendered in evidence, and some of which have been redacted from her report.
With respect to the stabbing offence, the accused gave Dr Eagle a history with respect to his carrying the knife to the Easter Show. He said that his associates had knives. When they arrived at the Easter Show, he told Dr Eagle that his brother had asked him if he had a knife, and his brother had said to him “Stop being a dickhead and leave it in the car”. He said to Dr Eagle that his other associates told him that they had left their knives in the car. He told Dr Eagle that he pretended that he had done so, but kept the knife with him. She recorded this history:
“He [KL] said ‘I told em if anything happens just run’.
They said ‘there is no one here, don’t do anything stupid’.”
“He said right then ‘Uati and his boys came’. He said the ‘two boys in front’ were ‘acting all aggressive and shit’. He said he ‘seen em reach for something, I stab him and run off’.”
“They used to put up stories about Oli so thought I’d do the same.”
Of the deceased, he said:
“I thought he’d go to hospital and come out.”
He told Dr Eagle that 67 put stories on Instagram about Oli, a reference to Darcy Moore. He denied to Dr Eagle that he had approached the deceased and his associates at the Easter Show, telling her that they had approached his group. He was asked about changing his clothes at the Easter Show. He said that he took off his jumper because it had blood on it.
During the course of the consultation with Dr Eagle, the accused’s mental state was assessed. During the course of that mental state examination, the accused acknowledged feeling angry in response to traumatic experiences, including his friend’s death. Dr Eagle expressed the view that the accused had “relatively limited insight into the relationship between traumatic experiences, his emotional function and behaviour”.
Dr Eagle reached a diagnosis, as earlier recorded, of PTSD, which she thought was largely in remission during the course of her assessment, whilst the accused was in a contained environment. Dr Eagle described how the accused told her how he felt after the Moore Incident in this way:
“He said following the incident involving the death of [Darcy], he experienced some nightmares, problems sleeping, feeling angry all the time, insomnia and waking up in a panic. He stopped attending school and he said he increasingly carried a knife due to a heightened sense of fear. The self-reported description of his symptoms from 1 September 2021 to the Index Offence were consistent with PTSD, and suggested he was experiencing intrusion symptoms (nightmares and anxiety to external reminders of the incident) temporally related to the traumatic incident; negative alterations in cognition and mood (cognitive distortions regarding the traumatic event and consequences, guilt and persistent anger); avoidance (possibly non-attendance at school, carrying a knife and remaining awake to play videogames) and alterations in arousal and reactivity (anger, hypervigilance, sleep disturbance).”
“His overall psychological functioning has likely been impacted by repeated and severe trauma including exposure to family violence from a young age and exposure to group-based violence during adolescence. He has also had limited positive or pro-social role models, and his primary care influences have normalised violence. His involvement in gang culture has also supported violence and antisocial behaviour as gratuitous and instrumental in achieving status and/or power. Achieving power and/or control through violence and the comradery of a gang would likely have seemed reassuring to a young man who had been exposed to events that made him feel vulnerable and afraid.”
With respect to the conduct disorder, Dr Eagle noted that the accused was prone to impulsive behaviours.
Speaking of the accused’s mental state at the time he stabbed the deceased, Dr Eagle said that it would:
“… have been influenced by a combination of factors including entrenched anti-social and pro-violent attitudes arising from a dysfunctional childhood during which he had limited pro-social role models and violence was normalised; his immersion in a gang culture that engaged in gratuitous violence, but also condoned violence and intimidation to achieve status, respect and power; his emotional and cognitive immaturity due to his age, and symptoms of PTSD from exposure to personally significant traumatic violent events.
PTSD symptoms would like have caused [KL] to have cognitive distortions involving his perception of threat and the intentions of others. (He would likely have been susceptible to believing others intended to harm him); a susceptibility to feeling angry and a heightened emotional response in the context of reminders of prior traumatic events. A heightened emotional response can reduce inhibitions and as a result reduce a person’s level of control.”
Dr Eagle noted that the incident occurred in the context of a variety of factors, which she described. She noted that the accused had a psycho-social immaturity and a susceptibility to a heightened anger response, and increased threat perception due to symptoms of PTSD. She opined that a heightened anger response would potentially reduce the capacity of the accused to control his actions in certain circumstances.
Some other factors were noted by Dr Eagle. She made these remarks:
“Psychosocial maturity relates to the ability to control impulses, consider the implications of a person's actions, delay gratification in order to achieve longer term goals and resist the influence of peers. The cognitive capacity of adolescents does not reach adult levels until around age 16 and psychosocial immaturity in decision-making can last into adulthood, resulting in impaired decision-making in arousing, emotional, existing or risky situations.”
“Well, I think most people understand this anyway, but from a psychiatric perspective, obviously maturity from childhood through to adulthood goes through certain stages or changes, and during adolescence, you probably see the largest psycho-social change in maturity, and that's because the part of the brain that regulates emotions and social relationships and cognition, is still developing.
And so from early adolescence, 12 to say 18, you go through a process of gradually maturing in terms of your ability to understand your relationship with others, and your ability to interpret social cues and rules, but also more importantly, your ability to control your emotions and your actions, and think in a more abstract way. So, think in a more reasoned and complex way, I suppose, about, you know, or consequential way as well, about how you need to operate.
We know young people, for instance, do lots of things without thinking about the long-term consequences, but by the time you become an adult, you're starting to think, well, I if do that, I can't become a lawyer or a doctor or whatever. So, that's part of that process. A person who is only 13 or 12, 13, 14 years old, they're at the very beginning of that process and they have very limited psycho-social awareness and maturity.”
“… certainly would have potentially impacted on his ability to mature, and that’s all he knew, it seems, in terms of his wider exposure as well, as the same sort of thinking.”
She also agreed that the accused’s experience of domestic violence at the hands of his father towards his mother and towards himself when he intervened, would be relevant to the development of his attitudes and maturity.
Dr Eagle was asked about the Moore Incident and whether that was a particularly relevant incident in the development of the accused’s PTSD. She said that she thought it was a particularly traumatic event, and went on to say:
“But I think the particularly traumatic aspect of this event, which is something that you do see, can cause traumatic, abnormal traumatic responses, is the emotional connection that appears to occur and the proximity of the injury between Mr KL and [Darcy], so he was in a heightened emotional state and he was holding someone physically.
So there's that sort of physical connection, which would trigger a much stronger emotional response to someone who he believed was dying, it seemed, from a psychiatric perspective, so that was very traumatic and very, if you want to use a term that's more a of latent - you know, very close to home for him, so it would have been very confronting to actually see that occur.… But this, yes, was very confronting and for a 13-year-old it would have been particularly so, even someone engaging in violence in other ways.”
Dr Eagle agreed that it was a plausible explanation that the accused was carrying the knife at the Easter Show, in light of his experiencing symptoms of PTSD, hypervigilance and heightened threat perception, in effect, as a “security blanket”, being the description given to the accused’s motivation by Dr Ellis.
Dr Eagle accepted that heightened threat perception was a symptom of PTSD that may have been operating at the time the accused was at the Easter Show and when the confrontation occurred.
Counsel for the accused asked Dr Eagle about a scenario which she described, which broadly reflected what occurred at the Easter Show. She was asked if she accepted that, in such a scenario, there may be a trigger arising from the PTSD related to the Moore Incident. Dr Eagle’s answer was informative. She said:
“I think, as I said in my report, I think there is most likely a role that hypervigilance and increased threat perception impacted on Mr KL’s reaction to that situation. I certainly accept due to PTSD. I don’t think it’s the only explanation. I think there are other factors that you can’t separate out of that, and I don’t think Dr Ellis and I disagree on that. I think it’s complicated, but I think the degree to which the PTSD contributed to his response to that situation is like a threshold question … it’s difficult to really understand.”
“Yes, your Honour. I think it’s very much, it he’s also a very immature person who is very young. But probably even more immature than his age would suggest, yes, your Honour.”
Finally, in her evidence, Dr Eagle agreed that, in assessing the accused’s psychiatric state at the time he stabbed the deceased, it was a complex psychiatric picture which required interpretation and that the integers of that complex psychiatric picture of the accused included the following:
● the exposure to domestic violence in the home;
● the lack of a parental or other male role model;
● the existence of a conduct disorder;
● the fact of and surrounding gang association;
● exposure to particular events of violence between February 2021 and 5 April 2022;
● the reaction of the accused in the six months between the Moore Incident in September 2021 and the stabbing of the deceased, in the sense of his description of going out and looking for revenge;
● the development of the variety of symptoms associated with PTSD;
● the age of the accused as at 11 April, being 14 years and 6 months, accompanied by his level of psycho-social immaturity.
Dr Ellis first saw the accused and prepared a report in February 2024, that is, about six months earlier than the consultation between the accused and Dr Eagle.
Similarly with Dr Eagle, Dr Ellis set out in his report the sources of information he relied upon. Not all of those sources have been tendered to the Court, and some have been redacted.
There is significant consistency between the histories given to Dr Ellis and Dr Eagle by the accused. Both thought the accused was giving them a candid account. Both thought he was cooperative in the interview process.
There is undoubtedly a difference in some detail of some of the events recorded by each of Dr Ellis and Dr Eagle. The Crown submitted that I would be persuaded that the accused had intentionally, or deliberately, minimised his criminality in various events. I am wholly unpersuaded that that is so. A mere difference in detail of histories given to experts psychiatrists by a 16-year-old does not, of itself and without more, bespeak deliberate minimisation. Histories are obtained in the course of consultations by an interaction between the psychiatrist and, in this case, the accused. The amount of detail given, in part, depends upon what questions are asked and what invitations are provided by the psychiatrist to, here, the accused, to go into more detail.
That complexity and interaction, particularly between psychiatrist and a juvenile offender in custody, is of a kind which does not readily permit an inference to be drawn of deliberate minimisation. Particularly is this so in circumstances where the accused gave both expert psychiatrists a considerable account of unfavourable aspects of his behaviour. I am not prepared to accept the Crown’s submissions on this point.
In Dr Ellis’ report, he records that the accused told him that he was carrying the knife at the Easter Show “just in case”. The accused told Dr Ellis that:
“… he felt calmer and more in control if he was carrying a knife.”
“He said that he came around a corner with his group and saw the rival group. He recognised the group as belonging to ‘67’ but did not know the individuals. He said he thought there was twice as many of the rival group as compared to the group with him. He said that he thought very quickly at the time. He thought that the deceased said ‘are there any Mounty cunts here? … He thought that he saw the deceased going for a weapon and this prompted him to move and stab him. He said that he thought a quick stab would injure the victim (similar to his prior experience of being stabbed) and that everybody would ‘jet’ away (meaning that both groups of boys would disperse very quickly after this happened) and this would prevent a longer brawl where people could be caught.”
“These included witnessing and being a victim of domestic violence as [a] child, witnessing the death of a friend by stabbing and [sic] a teenager and being the victim of stabbings. He has an ongoing sense of vigilance and mistrust of others. He re-experiences these events by nightmares. He avoids situations that remind him of the events, or shows emotional dysregulation and impulsive violence when he views fights starting. Carrying a knife to regulate his emotional state is a type of avoidance behaviour, where the knife symbolically is associated with better emotional control. …”
“The disorder in his [KL’s] case impaired his thought and perception by distortion and exaggeration of threat perception, mood by instability [sic] and by re-experience of traumatic memory. It is an ongoing disorder with temporary exacerbations. The condition has impaired his emotional well-being, judgment and behaviour evidenced by impulsive aggression and subjective dysphoric mood states. …
PTSD impacts upon decision-making, particularly in times of heightened emotional stress. … It is associated with greater impulsivity, less reflection and consideration of consequences. He reports in the days prior to the offence that his longer-term worry of being attacked was heightened. He describes an exaggerated perception of threat from the deceased (being outnumbered and believing the deceased was reaching for a weapon) at the time. He reports mood instability at the time. He reports that the decision to stab was impulsive.
General brain and cognitive development in teenagers is associated with impulsivity and reflexive, less consequential, decision-making. His developmental immaturity, relative lack of exposure to pro-social influence and greater exposure to antisocial, older peer influence, renders him less able in these areas than an average child the same age. This likely combined with his PTSD symptoms to impair mental function at the time of the offence.”
Dr Ellis expressed the opinion that the accused’s symptoms of PTSD impaired his ability to perceive events and control impulses at the time of the stabbing. He said that the impairment was clinically significant and featured an exaggerated response to external events.
Dr Ellis also gave oral evidence during which he noted that symptoms of PTSD fluctuate, and that such fluctuation can be by chance. He noted the following features of PTSD. First, that a person is more likely to develop PTSD if exposed to traumatic events when younger. That is because the developing brain is more susceptible to the effect of trauma. Secondly, that a well-recognised risk factor for developing PTSD is the witnessing of trauma within the family unit, where a child is usually much more frightened by those events. Events were also likely to be more confusing for the child because of the complication of parental reactions. Thirdly, a feature of PTSD is that the greater the number of adverse or violent events that a person is exposed to, the greater their chance of developing PTSD.
He noted that, in the case of the accused, there was an ongoing sense of vigilance and mistrust of others, he re-experienced events as nightmares, he had emotional dysregulation, and experienced impulsive violence.
Dr Ellis described that in this way:
“So impulsivity or making snap decisions without thinking through events beforehand or without thinking through the consequences become more likely in someone with post-traumatic stress disorder.”
Dr Ellis expressed the view that the accused’s PTSD likely impaired his thought and perception by distorting and exaggerating his threat perceptions.
Dr Ellis thought that the accused was hyper-vigilant at the relevant times. Of this, he said that the accused:
“… described a sense of threat, that he perceived that he was under threat and had an emotional response congruent with that thought.”
He also thought that a perception by the accused that the deceased was going to reach for a knife would be consistent with a heightened threat perception which was one of the recognised symptoms of PTSD.
Dr Ellis expressed the opinion that, if the accused had perceived, whilst at the Easter Show, that there was a threat from the opposing group of people, then that perception could act as a trigger event for his PTSD symptoms by increasing the emotional dysregulation and increasing impulsive decision-making at the time.
In evidence, Dr Ellis confirmed that he had viewed the CCTV footage of the accused stabbing the deceased. He said that, in his opinion, what he saw there was consistent with a quick and impulsive action – which was typical of a person with PTSD. He had described a symptom of PTSD as being:
“So, … a perception that there is an immediate threat where there may not be an immediate threat but that the perception is of an immediate threat, … physical action takes place more rapidly than it might in a less emotionally charged situation.”
“… they're impossible to completely disaggregate. That he was of a young age at that time and there's, there's significant variability amongst people as to their, their emotional regulation and impulse control. But in general younger people have less emotional regulation and less impulse control, and there's no reason to suggest that he [KL] was a particularly mature or well developed in those areas.
So I think that … his particular developmental immaturity at that time, it was likely that he was less mature than most children of his age, and had less general emotional regulation and less general impulse control, but that would interact with then the symptoms of post-traumatic stress disorder, to make those symptoms more severe than if he was older and had matured in those areas of mental function.”
Dr Ellis confirmed that the crux of his opinion, as set out in the report, was that the PTSD from which the accused was suffering was likely to have impaired his ability to perceive events and control his actions, or impulses, at the time of the stabbing. In that respect, he noted the severity of the PTSD diagnosis of the accused because he had been exposed to significant amounts of trauma, he had a significant number of symptoms that impacted his general function day-to-day, and that, in a clinical sense, the accused’s PTSD was significant and worthy of treatment.
Dr Ellis was also of the opinion that:
“Looking at the acts that occurred, and looking at his [KL’s] description of what he recalls as the events leading up to, and the immediate events themselves, that they were consistent with an exacerbation of his symptoms of post traumatic stress disorder consistent with emotional dysregulation, hyper-vigilance and impulsive action.”
“Q. Does that tell you anything about what his threat perception was at that time or his sense of hyper-vigilance at that time, to threat?
A. It gives an indication that he’s got a different sense of threat to his brother, that his brother doesn’t perceive there’s any particular threat or reason to take a knife. And, and it would be consistent with the hyper-vigilance of PTSD that people can do things like carry weapons with them because it gives them a sense of well-being, they feel less threatened when they’re carrying, because it’s a – I mean it’s partly practical, but it’s also partly symbolic.”
He maintained that, for a younger child, carrying a knife would be seen to be akin to a security blanket which might make them feel less anxious.
Dr Ellis was asked to consider a feature of the history of the accused which he did not obtain during his consultation, but which appeared in Dr Eagle’s report. That feature was that in a six month period after the Moore Incident, the accused told Dr Eagle that he was going out for revenge and that he was seeking fights. He said to Dr Eagle that he and a friend would go to different areas and if they ran into other boys, there would be a fight.
Dr Ellis was asked if such a history was necessarily inconsistent with the accused experiencing PTSD at the time of the stabbing at the Easter Show. He said:
“No it’s not, anger and irritability are common symptoms in PTSD, and sometimes a person seeks out, often if a person – sometimes a reaction, when a person freezes in a traumatic event, then later they try and get a sense of control back by being the actor in aggressive events. So it’s … consistent with having post traumatic stress disorder.”
It was not suggested by the Crown Prosecutor to Dr Ellis that he would have come to any different diagnosis of the mental health impairment of the accused had he received this history of conduct seeking revenge once in a six-month period, nor that this additional material would cause him to change his expert opinion.
At the end of his cross-examination, I asked Dr Ellis a similar question to which I have set out above and which I asked of Dr Eagle. Dr Ellis agreed that, at the time of the stabbing of the deceased, the accused presented a “very complex picture to be analysed from a psychiatric perspective”. He also agreed that, as he understood it, the difference between his opinion and that of Dr Eagle was that it was really a matter of degree in the context of that complex psychiatric picture.
In re-examination, he was asked this question, and gave this answer:
“Q. So is it your opinion that there may have been other factors at play, perhaps in that complex interaction that his Honour has just referred to, but even with that, it’s most likely that the symptoms of KL’s PTSD were substantially affecting his capacity to control himself at that time?
A. Yes, and it’s , it’s undoubted the gang influence was present, and it’s undoubted that he had a history of conduct disorder as well, and they would have had contribution to his behaviour, but that he also in my view, had post traumatic stress disorder, and as I understand Dr Eagle is also of the view that he had post traumatic stress disorder and that … it would be my opinion that the symptoms of that were likely present and they were likely substantially impairing his ability to perceive events and to control actions.”
It is convenient, having reviewed those parts of the evidence which I regard as having particular relevance, that I summarise the closing addresses of the Crown Prosecutor and counsel for the accused.
Before considering the closing addresses, I remind myself that, in no sense are these addresses by counsel evidence in the case. Counsel have identified, for me, the issues in the trial, and have each respectively offered different ways of analysing the evidence, and have reminded me of various parts of it. It is open to me to reject their submissions and arguments in their entirety if I do not find them to be persuasive. It is also open to me to find some of their arguments compelling and of assistance to me, while other parts are of no assistance at all.
I also note that it may be that neither counsel have offered arguments that are any more compelling than my own way of assessing the evidence by reviewing it and analysing it. I note that counsels’ arguments provide one way of viewing the evidence through their different perspectives. I am free to go about the analysis and review of the evidence in my own way, if that commends itself to me as the best way to resolve the issues in the trial.
“G G 67 motherfucker. You thought you could pull us up motherfucker, ha ha.”
(a) whether the Crown had proved that the accused had the requisite intention at the time he stabbed the deceased; (b) whether or not, at that time, the Crown has disproved that the accused had the necessary subjective belief sufficient to constitute self-defence; and (c) whether, at that time, the accused had a substantial mental health impairment, and if so, whether he had satisfied the Court that the impairment was so substantial as to warrant liability for murder being reduced to manslaughter.
The Crown submitted that the Court would infer that the accused had the requisite intention – namely an intention to kill or cause grievous bodily harm.
The Crown submitted that, in considering whether the requisite intention was proved, the motivation referred to at [266] was an appropriate starting point, and that the balance of the facts and matters were to be understood in light of this motivation.
The Crown relied upon the following aspects of the evidence as being sufficient to persuade the Court beyond reasonable doubt that the accused had the requisite intention:
that he was armed with the knife which was secreted to avoid detection from his brother at the time he entered the Showground, and whilst he was walking around;
that he had knowledge from past experience that a single stab wound to the abdomen or torso of a person could result in their death;
the medical evidence in relation to the size, depth and track of the wound, and what structures were pierced by the knife, meant that it was a long wound with some depth, rather than a small puncture wound; and
the entire context of the accused’s membership of the gang RFA, which provided the motivation for the accused to assault another person whom he thought was affiliated with 67, who had been observed on social media mocking Darcy Moore and his death.
The Crown noted that the accused told Dr Eagle, as part of in the history that he gave her, that he thought the deceased would require hospital treatment. The Crown submitted that this was a recognition by the accused that what was being inflicted would indicate a really serious injury.
Based upon these facts and all of the circumstances, the Crown submitted that the Court would be satisfied beyond reasonable doubt that it had established, at least, an intention to cause grievous bodily harm (or really serious physical injury).
With respect to the issue of self-defence, the Crown accepted that it was obliged to negative, beyond reasonable doubt, that the accused was acting in self-defence when he stabbed the deceased. It accepted that the Crown needed to satisfy the Court that it was not a reasonable possibility that, at the time he stabbed the deceased, the accused had an actual belief that it was necessary for him to do so in order to defend himself, or those who were with him.
In considering this issue, the Crown submitted that the only evidence of what the accused’s belief was said to be, were the hearsay accounts that he provided to expert psychiatrists, Dr Ellis and Dr Eagle. The Crown noted that these accounts were being given some years after the events and submitted that the accounts were likely to be unreliable, and so the Court would exercise caution in accepting some of what the accused told the expert psychiatrists.
“… the brother I said to … brother you wanna have a crack with me and I used that knife on the brother.”
The Crown submits that I would take from this part of the conversation that the accused issued an invitation to the deceased to have a fight with him, and then what followed immediately afterwards was the accused effectively ambushing the deceased (who was not facing him at the time) from the side.
The Crown submitted that the contents of that telephone call were more likely to be accurate than the histories given some years later, particularly as the accused did not realise he was being recorded at the time.
The Crown draws attention to the fact that it is clear from the CCTV footage that the first physical act of aggression at the time of the confrontation was that of the accused, which takes place at a time when he has two male associates standing between him and the deceased.
The Crown submits that the fact that the deceased ran away immediately after the stabbing does not suggest that he was at all concerned that the deceased was a threat to his fellow gang members.
The Crown drew attention to the evidence of a number of bystanders, who suggested that the group of males with the accused were the instigators of the aggression and the more aggressive of the two groups.
The Crown submitted that, far from acting in self-defence because of a belief that it was necessary to do so, the accused’s motivation in stabbing the deceased was to seem brave and strong, and so he struck first. The Crown submitted that the accounts given to the psychiatrists two years later, are nothing more than a retrospective justification for what the accused did.
The Crown also placed reliance upon the self-recorded video of the accused taken whilst he was still in the Showground after the stabbing, the contents of the various telephone calls, and the words contained in the Notes app and diary entry. The Crown submitted that those parts of the evidence could not be simply regarded as evidence of a young man bragging or exaggerating but, rather, were an accurate reflection of what the accused’s mindset was at the time of the stabbing, and that the contents of each of the Notes and diary entries were factually accurate.
Finally, the Crown submitted that it was not open to the defence to argue that the accused did not have an intention to kill or cause really serious bodily injury, whilst at the same time holding a belief that he had to do what he did to protect himself or other gang members, that is, to stab the deceased. The Crown submitted that the two arguments were incongruous and could not sit together.
The Crown submitted that the whole argument that the accused was acting on the belief that what he did was a necessary action, was disproved by the context, his behaviour immediately after the stabbing, and his later justifications.
The Crown then addressed the issue of a substantial mental health impairment.
In opening, counsel for the accused submitted that the fact that the accused was only 14 years and 6 months old at the time of the stabbing, and the fact that he had, on the agreed position of the two expert psychiatrists, a mental health impairment which impaired his capacity to control himself at a level which was clinically significant and required treatment, are two factual propositions which underlay any consideration of the three issues raised in the proceedings.
Counsel submitted that those two matters could not be viewed as separate from the events at the Easter Show, and that, accordingly, those events could not be seen as occurring in some kind of vacuum divorced from the age of the accused and his PTSD. She submitted that those two facts could not reasonably be said to have had no, or very little, part to play in what happened at the Easter Show. On the contrary, she submitted that they were central to all that occurred.
On the first issue of whether the accused had the requisite intention to either kill the deceased or cause him grievous bodily harm, counsel for the accused submitted that the evidence and the Crown submissions would not persuade me beyond reasonable doubt that the accused had the requisite intention.
Counsel pointed to the following factors:
what occurred at the Easter Show was an unplanned and spontaneous event, she pointed to the impulsiveness of the conduct of the accused, the lack of forethought on the part of the accused for the longer-term consequences of what was an impulsive act;
the carrying of a knife did not indicate that the accused came to the Easter Show with the requisite intention towards the deceased. She submitted that the better view was that the accused, as a person with PTSD, carried the knife as a type of security blanket to reduce his anxiety;
the act of stabbing itself was very quick and occurred only a short moment after the two groups met, as can be seen on the CCTV footage. Counsel submitted that, in that situation, and in that very short period of time, there was very little opportunity for the accused to give any thought as to the consequences of his actions and hence, to have formed the requisite intention and acted upon it. Counsel submitted that the nature of what occurred, whilst deliberate, was one without consequential thought, given the very short time period involved;
the psychiatric evidence, particularly of Dr Ellis, supports the underlying proposition that PTSD can impact on decision-making and diminution of self-control, particularly in times of heightened emotional stress or heightened threat perception. PTSD is associated with greater impulsivity, less reflection and less consideration of consequences, and that such features of PTSD were in place at the time of the stabbing;
the action of the accused was a single quick movement, and was not a repeated act. The action did not indicate that the accused was, in any way, aiming to inflict injury to any particular place on the body of the deceased. It was, on counsel’s description, a single reach-through action which, by its nature, did not indicate that the accused was in any way intending to cause death or grievous bodily harm to the deceased.
The issue for my determination is whether the Crown has satisfied me beyond reasonable doubt that, at the time the accused stabbed the deceased, he had an intention to kill the deceased or to cause him grievous bodily harm (that is, really serious physical injury).
If the Crown has failed to satisfy me beyond reasonable doubt that the accused had the requisite intention, then I must return a verdict of not guilty of murder. The accused accepts that in those circumstances, he would be guilty of manslaughter, and that is the verdict which I ought to return.
I direct myself that intent or intention are familiar and ordinary words. In the legal context of this trial, they carry their ordinary meaning. Intention may be inferred or deduced from the circumstances in which the deceased died, and from the conduct of the accused before, at the time of, or after he stabbed the deceased. I may look at whatever a person says about their intention at, or around, the time of the stabbing, or even later. But the purpose of looking at evidence of that kind is to understand what the intention of the accused was at the relevant time, if any.
I remind myself that, in some cases, perhaps most, the actions of a person may themselves provide the most convincing evidence of their intention. Where a specific result is the obvious and inevitable consequence of a person’s act, and where they deliberately (not accidentally) carry out that act, then it is open to me to infer that the person did that act with the intention of achieving that result. Here the Crown’s submission as to the intention of the accused relies upon the drawing of inferences.
In the context of a criminal trial, I should be careful about drawing any inference. I must examine any possible inference to ensure that it is a justifiable one. In the context of this criminal trial, where proof is required beyond reasonable doubt, I direct myself that I must not draw any inference adverse to the accused which may be justifiable from other evidence, unless I am satisfied, that it is the only rational inference in the circumstances.
I have previously summarised the Crown’s case. I do not ignore the submissions which were put, or all of the evidence adduced by the Crown. However, it seems to me that the essence of the Crown’s case, insofar as it relates to the proof that the accused had the requisite intention, commences with the proposition that the actions of the accused were motivated by his gang affiliation and, in that context, he wanted to assert the dominance of himself and his gang over their rivals, namely, 67. The Crown submitted that the accused’s statement in the course of a telephone call some months after the stabbing, namely “we always say for the gang you have to do anything for the gang” supports its submission that what occurred was motivated by the accused’s gang affiliation.
The Crown has not persuaded me that “on the balance of probabilities” the accused had the motivation that it contends existed. The existence of a motive is not an element of the offence of murder. But it may assist, if it exists, as a relevant circumstance in the proof of the offence.
“He said he thought a quick stab would injure the victim (similar to his prior experience of being stabbed) and that everybody would ‘jet’ away …”
He told Dr Eagle, “I thought he’d go to hospital and come out.”
The Crown submits that I should infer that those two statements indicate that the accused contemplated inflicting grievous bodily harm, or really serious physical injury, because a person would only go to hospital if they were seriously injured.
I do not draw such an inference. First, at the time of recounting these statements to the expert psychiatrists, the accused was 15 to 16 years of age. The nuanced interpretation contended for by the Crown does not sit well, in my judgment, with the age, psychosocial immaturity and general ability of the accused to express himself, at that time.
Secondly, from listening to the telephone conversations of the accused, and attending to the words he used, including the descriptions he gave to the expert psychiatrists in the course of his history, I am simply unpersuaded that I should infer a meaning for the words in [328] above, in circumstances where the accused did not himself clearly articulate such a meaning. In my view, the use of those words in the history given to the two expert psychiatrists, is equally consistent with the accused having an intention to inflict a minor wound, which would not be sufficient to cause grievous bodily harm.
As well, the Crown’s submission does not take into account the caution necessarily required before accepting the words in their entirety, given that they were spoken well after the events in question, and are recalling the state of mind of a 14-year-old adolescent.
Particularly is this so in this case because, as I have earlier found, the time involved in the confrontation between the accused and the deceased was a matter of 10 seconds or so.
It would be open to infer from the stabbing that the accused intended to cause the deceased harm. So much is undoubted. However, the age of the accused at the time, the fact of his PTSD and the symptoms of it, which included impulsivity and anger responses which caused him to lose control, together with the very brief period of time involved in the encounter, all point, in my judgment, to the accused not, in fact, forming any specific intention of the requisite kind.
Certainly, it is a reasonable inference that the accused’s actions in stabbing the deceased were an impulsive reaction engaged in, as a response to the confrontation, in circumstances where within the very short period of time involved, he did not form any specific intention at all, let alone the requisite intention necessary, to amount to the offence of murder. In other words, it is reasonable to conclude that the accused’s action was an impulsive, thoughtless, immediate reaction to the encounter, without any consideration being given to any consequences at all. After all, he was at that time a psycho‑socially immature adolescent who was only 14 years and 6 months old.
Before reaching a final conclusion, it is appropriate that I consider the Crown’s submission with respect to the effect of the meaning of the words spoken on the self-recorded video by the accused, because the Crown submits that these words, spoken as they were, very shortly after the stabbing, are a sound guide to the intention of the accused.
“G G 67 motherfucker
Thought you could pull us up motherfucker
Ha ha”
The phrase “67 motherfucker” was used the day before by the deceased in a self-generated video taken on the evening of 10 April 2022. The way in which he used that phrase suggested that it was used to express domination by 67 over those with whom he was then fighting.
The phrase was also used by the deceased’s brother, Maselino, as can be heard from the video of him after the stabbing, lying on the ground, when he was arrested. Although some of the earlier words are indistinct, the phrase “67 motherfucker” can be heard. He was calling it out aloud. On any interpretation, he was using it to refer to his gang allegiance, and to articulate the importance of his gang and his affiliation to it. The phrase was not being used in a pejorative sense.
In that context, the reference in the first line of accused’s statement set out at [337] above to the same phrase, is a reference to a commonly used phrase to describe the gang 67. It is a phrase which can be used both as a phrase of admiration and a phrase of insult or derogation. Here, in my view, it was being used ironically.
The following line, “thought you could pull us up”, is, in my view, simply a reference to the fact that on the accused’s interpretation of what had occurred, namely, the confrontation was an attempt by members of 67 to be aggressive towards members of the accused’s gang, RFA.
I am unable to infer from the words used in this self-generated video that the accused had the requisite intention, nor the motive which the Crown attributes to him.
If anything, the words that were used were, as Dr Eagle thought, bragging about what had happened. In other words, they were used to emphasise the result of what had happened, rather than any reason to explain why the stabbing had happened.
There are other factors which support my conclusion that the Crown has failed to prove beyond reasonable doubt that the accused had the requisite intention. In the first place, it is accepted that the encounter was not planned or, in any way, arranged. Rather, it was a chance encounter at the Easter Show between the members of the two gangs. Secondly, there is no evidence that the accused knew the deceased personally, or had ever personally interacted with him. There is no evidence of any personal animosity existing between the deceased and the accused.
The intercepted telephone call of 20 May 2022 records the accused saying that it was the brother of the deceased that was mocking Darcy Moore after his death. Later in the conversation, the accused referred to the deceased’s brother as “the TikTok one. The TikToker”. There was no reference at all to any suggestion that the deceased was understood to be responsible for the death of Darcy Moore, and so was the target of any threat or conduct by the RFA.
I commence the consideration of this second issue by reminding myself that this is a matter in respect of which the Crown has to satisfy me beyond reasonable doubt that the accused was not acting in self-defence at the time he stabbed the deceased. That question can be put in the alternative, namely, whether I am satisfied that there is a reasonable possibility that the accused genuinely believed that his conduct in stabbing the deceased was necessary in order to defend himself or another person?
If there is such a reasonable possibility, then I must proceed to return a verdict of not guilty of murder but guilty of manslaughter, because the Crown will not have satisfied me beyond reasonable doubt that the accused was not acting in self-defence.
The law recognises the right of a person to act in self-defence from an attack or a threatened attack even to the point of killing a person. This right arises where two circumstances exist. The first is that the accused subjectively believes that, here, the stabbing of the deceased, was necessary in order to defend himself or another person. The second is that what the accused did was a reasonable response in the circumstances as he perceived them to be.
The first part of this test addresses the subjective belief of the accused at the relevant time. In other words, I must consider the circumstances as the accused perceived them to be at the time of that conduct. In so doing, I must take into consideration all of the attributes of the accused which may bear upon his perception of those circumstances, and which had a bearing on any belief that he may have formed. Those circumstances and attributes would include his age at the time, namely 14 years and 6 months, and also the fact that he was suffering from clinically significant PTSD.
I remind myself that it is the perception of the accused which must be considered, and not what someone else in his position might have perceived. I cannot look at the matter with the benefit of hindsight. I must take into account that, in the situation in which the accused found himself, calm reflection cannot always be expected. It may be that in hindsight, it could be thought that the accused was mistaken in believing that it was necessary to do what he did, but that is irrelevant.
The Crown must establish beyond reasonable doubt that the accused did not personally believe that his conduct was necessary for his defence. Only then will the Crown have succeeded in eliminating self-defence.
I should say that the accused accepts that what he did was not a reasonable response in the circumstances as he perceived them to be. However, he maintains that he, nevertheless, genuinely believed that what he did was necessary in order to defend himself or another person.
Again, the issue calls into question the state of the accused’s subjective belief, that is, what was in his mind.
“Uati and his boys came. … ‘The two boys in front [were] acting all aggressive and shit’.
The accused said to Dr Eagle that he “seen em reach for something, I stab him and run off”.
He told Dr Ellis something similar. He said:
“He thought that he saw the deceased going for a weapon and this prompted him to move and stab him.”
These accounts are hearsay, and were given, as I have previously noted, quite some time after the stabbing event in question. Nevertheless, the consistency of them suggests that they are not completely unreliable. The description given is, in substance, similar, namely that the accused perceived a threat, being that he thought the deceased was going to pull out a weapon in the context of the confrontation that was taking place, and on the basis of that belief, he reacted by stabbing the deceased.
I certainly do not think that this evidence can be dismissed in its entirety as completely unreliable. It is, in my view, an entirely plausible subjective belief which is worthy of weight.
The consequences upon the accused’s thought processes at the time, which relate to his PTSD, must also be taken into account. The first is that he was hypervigilant. That was described as being akin to a person “walking on eggshells”. He also had a heightened threat perception. His PTSD impairs his judgment and his capacity to control himself, and his behaviour is characterised by impulsive aggression. His past exposure to significant violence at the hands of two other gangs, and his knowledge of the events of April 2022 involving members of RFA and 67, although not himself, was a proximate reason why, whilst at the Easter Show, he had reason to be concerned when he encountered the deceased, whom he recognised to be a member of 67, that he was under threat.
I am satisfied, on the probabilities, that the accused, and the other members of his gang, were not displaying any signs of aggression in the time leading up to the encounter. The CCTV footage does not show any such signs of aggression. Whilst I accept that the impression of one bystander, Ms Franks, was that the group associated with the accused was the more aggressive of the two groups, another bystander, Ms Marzolla, suggested that the yelling and aggression was coming mainly from the group associated with the deceased. A further bystander, Ms Breea Allen, heard a lot of yelling between the groups, and it was not clear precisely who was saying what.
Whilst I do not doubt that these eyewitnesses were doing their best to tell the Court as accurately as they could of their recollections, the nature of what occurred, the short time of what occurred and how they perceived what occurred, does not enable me to form any clear conclusion from their evidence that the accused, or those with him, were being aggressive towards to the deceased, or the group of people with the deceased.
As well, as noted above, the CCTV footage does not enable any such conclusion to be drawn.
Rather, I am satisfied, on the balance of probabilities, that it is likely that it was the deceased, or those with him, who were the more aggressive. The evidence is that the deceased was clearly on the alert for other gang members. He had been involved in a violent episode on the evening before at Olympic Park Train Station. He was spotting, and communicating about potential gang rivals before the deceased arrived at the Easter Show. He had given his younger brother a knife for his protection. He had personally expressed dislike of people from “Mounty”, that is, gang members of RFA.
Finally, I come to consider whether the accused has persuaded me on the balance of probabilities that the partial defence to murder of substantial impairment because of a mental health impairment, pursuant to s 23A of the Crimes Act*,* has been made out.
I approach this issue of the existence of the partial defence, on the basis that it is hypothetical in this instance because of my earlier conclusion on intention and self-defence. In other words, I approach it on the basis that the accused would otherwise be guilty of murder. That means I am approaching the matter on the basis that the accused had an intention to kill or cause grievous bodily harm, and that he did not have a reasonable belief that it was necessary to do what he did to defend himself or another.
The accused has to persuade me that he suffers from a substantial impairment because of a mental health impairment. And, further, he must satisfy me that, as a matter of the application of community standards, the impairment was so substantial as to warrant liability for murder being reduced to manslaughter.
In the way in which this issue has been argued, I direct myself that the accused must establish more probably than not that:
at the time he stabbed the deceased, his capacity either to:
(i) understand events; or (ii) judge whether his actions were right or wrong; or (iii) to control himself,
was substantially impaired by a mental health impairment; and
the impairment was so substantial as to warrant his liability for murder being reduced to manslaughter.
I note that the rationale for this defence can be described in this way, namely, that persons charged with committing a crime, if convicted, are to be punished for it. One of the most important factors in determining what punishment should be imposed for the crime of which an accused is convicted, is whether there are matters in mitigation which would serve to reduce the extent of the blame which should attach to that crime.
I note that both the crime of murder, and the crime of manslaughter, involve the death of a human being. But the crime of murder is a more serious crime than that of manslaughter. Manslaughter is punished less severely than murder. This is so for a number of reasons, one of which is that the culpability of a person who commits the crime of manslaughter is less than that of a person who commits the crime of murder.
A person who, because of a mental health impairment, has an impaired capacity to control himself or herself, is less responsible, according to the standards prevailing in our community, than a person who has full capacity in those respects.
It is in that way, and for that reason, that Parliament has provided for this partial defence, which requires not only that the accused prove that his capacity was so impaired, but also requires that, in my role as the Judge determining this trial, and representing the community, and applying the standards which I regard as current in the community, I should be satisfied that the impairment was so substantial that the liability of the accused to punishment should be reduced from that which would follow from a conviction of murder, to that which would follow from a conviction of manslaughter.
In considering the first issue, the expert psychiatrists are agreed that the accused was suffering from a mental health impairment, namely, PTSD, at the time that he stabbed the deceased. The PTSD from which the accused was suffering was regarded by both expert psychiatrists as clinically significant and warranting treatment. It substantially impaired the accused’s capacity to control himself.
I am satisfied, and there was no submission from the Crown to the contrary, that the first part of this partial defence has been established. That is to say, I am satisfied that, at the time he stabbed the deceased, the accused’s capacity to control himself was substantially impaired by a mental health impairment.
I next need to consider whether the substantial impairment was such as to warrant the accused’s liability for murder be reduced to manslaughter.
In deciding this matter, I must apply the standards which I regard as prevailing in our community (bearing in mind that manslaughter is regarded as a less serious crime than murder, and that the community places less blame and condemnation upon a person guilty of manslaughter than of murder). In answering this question, I must approach the matter in a broad commonsense way, applying the standards of the community which, as I am hearing this trial as a Judge alone, I represent.
“Has the accused satisfied me, in the circumstances of this case, that any impairment to his capacity was such that he should not be condemned or blamed as a murderer and that, rather, he should be treated as having been guilty of manslaughter.”
I have traversed in this judgment, on a number of occasions, and in different ways, the facts surrounding what occurred. The salient features in relation to this partial defence are these.
The accused was 14 years and 6 months old. He was psychosocially immature. He was impaired by his PTSD which existed against a familial and cultural background for which he could not be held responsible. He was exposed to family violence at an early age. He had no role model. He suffered from a conduct disorder, a recognised psychiatric condition. He was a young, vulnerable man who found safety in being a member of a gang. He was exposed to significant violence prior to becoming a member of the gang, and once he became a member of the gang. The violence to which he was personally exposed was not initiated by him. It is correct that he engaged in violence, but only once it was initiated against him, and his gang associates, by other groups. He was carrying a knife at the Easter Show because his PTSD created a condition of anxiety, heightened threat perception and hypervigilance. It was a security blanket for him which lowered his anxiety. The stabbing occurred in those circumstances, and, as I have noted above, in a very short space of time. It was not planned.
In my view, community standards do not require that the accused be condemned as a murderer. Far from it. Community standards would recognise that a person of the age of the accused lacks maturity, they lack emotional development, and they are often prone to thoughtlessness, anger and impulsivity. These are not the traits of a criminal mind or of criminal behaviour. They are traits associated with immaturity and a mental health impairment. As well, the impact of the PTSD is on the capacity of the accused to control his own behaviour. It is, accordingly, directly associated with and, in my view, substantially impacts upon, his behaviour in stabbing the deceased.
In all of those circumstances, I am well satisfied that community standards would not condemn the accused as a murderer.
For this reason, I am satisfied that the partial defence of substantial impairment by way of a mental health impairment is successful and, accordingly, I would direct, had it been necessary, that the appropriate verdict to be returned was one of not guilty of murder but guilty of manslaughter.
I make the following orders:
Return a verdict of not guilty of murder but guilty of manslaughter.
Direct the entry of a conviction for the offence of manslaughter.
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Coversheet amendment
R
KL [2025] NSWSC 1414
(1990) 170 CLR 573
The Crown also relies upon intercepted telephone conversations in which the accused made admissions and spoke in ways which also indicated his motivation for what he did.
The accused, his brother, cousin and friends, with whom he was attending the Easter Show, were members of a gang called “Ready for Anything” (“RFA”). RFA comprised people who lived in the Mt Druitt area and they were rivals with the gang 67, whose members came from, or were associated with, the Doonside area.
I accept that this incident occurred and that the features of the incident are as set out in the expert reports.
The assailants were not identified in the evidence as belonging to 67. The evidence does not reveal that anyone was charged by the police with respect to the incident. From the description, I am satisfied that this incident must have been very traumatic for the accused, who was only 13 years old at that time.
Although the accused told Dr Ellis that he had been a member of RFA from 12 years of age, I prefer the account given to Dr Eagle. It seems logically anchored in the contemporaneous events of, and in the aftermath of, the football training incident.
I also accept that it was after this incident that the accused started to carry a knife for self-protection, as he told Dr Ellis. Carrying a knife made him feel more confident and less anxious.
Both expert psychiatrists noted that the accused had not, prior to stabbing the deceased, been diagnosed with any mental illness, or mental health impairment. They both noted that he had not engaged with any mental health service and had received no treatment (including medication) for any mental health condition or impairment.
Both expert psychiatrists agreed that, at the time of the stabbing of the deceased, the accused fulfilled the diagnostic criteria for a conduct disorder, and also for the diagnosable psychiatric anxiety condition of PTSD. Both experts regarded the extent to which the accused suffered from PTSD as being “clinically significant” – a phrase meaning that his PTSD warranted treatment.
The effect of this PTSD, and the consequences for the behaviour of the accused will be considered in due course.
I am content to draw the description of these events, and from what immediately followed, from my viewing of the CCTV footage, which is in evidence and is of sufficient clarity to identify what happens. On balance, I am satisfied that it is the most accurate source from which to determine what happened.
It is fair to say that the whole of the confrontation takes a very short period of time – which, assessed from the CCTV – is something in the order of 10 seconds. It is unnecessary to be exact or precise. The period of the confrontation is a very short one.
Two members of the accused’s group, both wearing black, stop about 1m or less from the deceased. Two members of the deceased’s group stop slightly behind the deceased. The accused, who is readily identifiable because he was wearing a white hoodie, which he pulled up as he approached the deceased, stopped immediately behind his two associates dressed in black.
Words seem to have been spoken between the deceased and at least one, or possibly both, of the two men dressed in black. It is not clear precisely what was said. The CCTV film does not include audio. There was no physical interaction between the males. None of them raised their fists, or attempted to punch or strike each other. No weapons are visible.
At this time, as the confrontation is unfolding, the accused was standing behind and between his two associates. His hands were in the pocket of his hoodie, or else by his side.
There is some small lateral movement by one of the accused’s associates, perhaps reflecting some movement of one of the companions of the deceased who was standing in the vicinity. The deceased turns to face that associate, whose movement has created a small gap between him and the male behind whom the accused is standing.
The accused, in a sudden and quick movement with his right arm, reaches from where he is standing behind his associates, through such space as exists between his associates, and stabs the deceased in a single movement. The deceased staggers backwards a few steps and then steps forward, throwing punches at the accused’s associate. The accused then immediately flees in a southerly direction back along Australia Avenue in the direction of the Ferris Wheel and the Showbag Pavilion.
A bystander, Ms Franks, heard what she described as some yelling, but could not hear what was being said. The yelling occurred between the two groups. Ms Franks agreed that both groups were yelling and that, thereafter:
It is convenient to remind myself of the earlier warning which I have given with respect to hearsay evidence. I keep in mind that hearsay evidence can be unreliable. I keep in mind that the accused’s histories given to the psychiatrists may be unreliable, in the sense that he was giving an account some years after the event as to what he was thinking at the time. However, I do not accept, as the Crown put in their closing submissions, that the accused intentionally or deliberately gave an incomplete account of various events, or as I have earlier noted, that he minimised, deliberately, his account of previous violent events.
The Crown submitted that in considering the histories given by the accused to the expert psychiatrists, I would keep in mind, given the context that he was reporting events that were about two years old, and given that the subject matter of which he is giving a history, involved the taking of the life of another human being, that it would be the case that the accused was attempting to make what he did more palatable by retrospective justification.
The Crown drew attention to the fact that any impulsivity would be connected to his action rather than to his state of mind.
The Crown submitted that the best evidence as to what was occurring in the accused’s mind is actually to be inferred from evidence that the accused knew of the deceased and knew him to be a boxer, and did not know or else hold a belief that, at the time of the confrontation, the deceased was in possession of a knife. The Crown drew attention to the fact that, as is visible on the CCTV footage, it is clear that the deceased was not reaching for a knife, or anything else, prior to his being stabbed by the accused. In that respect, the Crown draws attention to the remark made by the accused in the course of the telephone call of 11 July 2022, where he says that:
The Crown reminded the Court, correctly, that it was the accused who bore the onus of persuading the Court, on the balance of probabilities, that this defence of substantial impairment was made out, including that the impairment was so substantial as to warrant liability for murder being reduced to manslaughter.
The Crown accepted that the evidence established that the accused had a mental health impairment at the time he stabbed the deceased, which was substantial in the sense that it was not trivial, and that mental health impairment was PTSD. The Crown submitted that the real dispute was the severity of that mental health impairment, as it impacted on the behaviour of the accused when he stabbed the deceased.
The Crown pointed to significant differences in the histories given to each of Dr Ellis and Dr Eagle, and noted that these accounts were being given around two years or so after the stabbing occurred.
Ultimately, the Crown submitted that the Court would prefer Dr Eagle’s opinion on the extent of the impairment rather than that of Dr Ellis. The Crown submitted that the evidence supports that the accused was motivated to violence by his gang affiliation, that Dr Eagle had a much fuller account of the history of past violent episodes involving the accused, and that, in an overall sense, Dr Eagle was better placed to assess the extent of the PTSD of the accused than was Dr Ellis.
The Crown drew attention to various facts surrounding the confrontation and the stabbing, including that the accused pulled his hood up over his head as he approached the deceased’s group. The Crown noted that, after the stabbing, the accused fled the scene, discarded his hoodie and was present during a conversation with Mr Singh, which was knowingly false, as he tried to escape the Easter Show. The Crown submitted that all of this showed that the accused acted in a way, immediately after the event, which demonstrated full self-control, including self-recording the video.
The Crown placed particular emphasis on the fact that, in the months after the Moore Incident, the accused did not avoid incidents of violence which might be a trigger for his PTSD. Rather, he sought out incidents of violence and involved himself in them. The Crown submitted that this suggested that his PTSD was not a severe as Dr Ellis had regarded it to be.
The Crown noted the difference of opinion between Dr Eagle and Dr Ellis as to whether, in order for the behaviour of the accused to be attributed to his PTSD, there needed to be a trigger, that is, something that reminds him of the traumatic events and which is accompanied by an onset of symptoms. The Crown submitted that there was no direct evidence as to whether there was a trigger and, if so, what it was at a time contemporaneous with the stabbing of the deceased.
Ultimately, the Crown submitted that I ought infer, given the absence of direct evidence as to the state of mind of the accused, that, in the short time in which the confrontation occurred, from the time the accused pulled his hood up to disguise himself, he formed an intention to participate in violence towards the deceased. The Crown noted that, at no time is it apparent from the CCTV footage that the deceased was, in any way, adopting any form of aggressive posturing.
Finally, the Crown moved to address the “community standard” and the final aspect of substantial impairment. The Crown submitted that I would not be persuaded that the impairment was so substantial as to warrant the accused’s liability for murder being reduced to manslaughter.
The Crown submitted that there were a number of factors which should be taken into account, and from which I would conclude that the accused’s culpability ought not be reduced. Those factors were:
any symptoms which the accused may have been experiencing from his PTSD were either not being experienced, or else they did not impinge upon the accused to the extent that he was avoiding violence, but rather to the contrary;
the evidence established that the accused was motivated by revenge and retribution for what he perceived as a slight to the memory of Darcy Moore, a fellow member of RFA, particularly in circumstances where he knew that the gang, 67, and its members or associates were not responsible for the death of Darcy Moore, although they were posting disrespectful messages on social media;
what is depicted on the CCTV footage is not consistent with the PTSD symptom that the accused had an increased threat perception because he was moving towards the deceased;
the contextual circumstances where the accused was willingly engaged in gang violence and immersed himself in that culture would mean that using the sequelae of that violence, being the accused suffering from PTSD, to mitigate his culpability in relation to the killing of another human being, could not be seen to be an acceptable community standard;
the violence of the stabbing occurred in a public place where a large number of people were present, including children;
the post-stabbing conduct, including gratuitous references to the death of the deceased in disrespectful and disparaging terms;
that his motive was a gang-related motive; and, finally
that it is apparent from what happened immediately afterwards, when the accused fled the melee which he had started, disposed of his clothes and left the area of the stabbing and the Showground more generally, that he was not so affected by PTSD as to be unable to act in his best interests.
In combination, the Crown submitted that the totality of those facts should be seen to indicate that, even if the accused was experiencing any PTSD symptoms, which the Crown did not accept, they would not be of such a significant nature as to reduce his culpability in the manner contemplated by s 23A of the Crimes Act.
With respect to the second issue, namely whether the Crown had satisfied me beyond reasonable doubt that the accused did not carry out the stabbing of the deceased in self-defence (s 419 of the Crimes Act), counsel submitted that the availability of self-defence concentrates on the existence of a subjective belief that, in this case, the accused believed his conduct in stabbing the deceased was necessary to defend himself or another person, although the conduct, she accepted, was not a reasonable response in the circumstances as the accused perceived them to be. This latter test is an objective one.
Counsel submitted that there is no reason to doubt that the PTSD would have seriously impacted the accused’s perception of the events. This included that he would have an increased threat perception and that he was hypervigilant. Counsel submitted that the accused gave consistent accounts to the two expert psychiatrists of what occurred on the day leading up to the stabbing. She said that, as the expert psychiatrists had opined, the accused was being candid with them, including that he was not seeking to paint himself in the best light. It was submitted that the Court would accept that the accounts of the accused were generally accurate.
Counsel submitted that, by reference to the CCTV footage, and the evidence of other witnesses, the statement made by the accused to each of the expert psychiatrists, that he thought he was outnumbered in the crowded situation as the deceased and his group of friends approached his group, was entirely plausible.
Counsel submitted, by reference to the Agreed Facts and communications emanating from the deceased’s mobile phone, that it is likely that the deceased had animosity towards RFA and its members, including the accused, and that he was consciously on the lookout for such gang members whom he had said on the previous evening that he just wanted to fight. Counsel noted that the deceased had given his brother a 10cm folding knife in order for him to be safe in the event of trouble.
Finally, with respect to this particular issue, counsel drew attention to the fact that, in the self-recorded video, the accused (referring to the gang 67 and the events which had happened) said “thought you could pull us up” – which counsel submitted indicated that, on the probabilities, the accused perceived the deceased and members of his gang as having been aggressive towards him¸ leading to the stabbing.
Counsel pointed to evidence from Dr Eagle that the effect of the accused’s age and psychosocial immaturity would have been to increase the distortion which PTSD would have had on the accused’s perception, decision making and behaviour.
In essence, counsel put that the statements of the accused to the expert psychiatrists as to what he perceived, could not be disregarded entirely, simply because they had been made to expert psychiatrists two years or so after the event. She submitted that the accounts were consistent, and in significant respects, reflected what could be seen on the CCTV footage as to what occurred, and that such account of his perceptions were entirely explicable by the symptoms of PTSD, being a heightened threat perception, hypervigilance, impulsivity, and a diminished sense of control over his actions.
With respect to the issue of substantial impairment, in addition to the heightened threat perception, counsel submitted that the accused’s hypervigilance would have impacted his reaction in that situation. She pointed to Dr Eagle’s opinion as supportive of that submission.
Counsel made submissions with respect to the third issue, namely whether the mental health impairment was so substantial as to warrant, in the application of community standards, the reduction of his liability from murder to manslaughter. Counsel accepted that the onus was on the accused to prove that issue on the balance of probabilities.
Counsel submitted that the PTSD from which the accused was suffering, was substantial and could not be regarded as trivial at the time, because both expert psychiatrists regarded the PTSD as clinically significant, an expression which meant that it required treatment.
The accused submitted, having regard to the expert evidence of both psychiatrists, that the symptoms of PTSD for the accused in the circumstances of the encounter at the Easter Show, included that the accused had a heightened threat perception which would be more likely to trigger an anger-based response associated with a lack of control; emotional dysregulation which would impact on decision-making resulting in a reduced capacity to control oneself; a tendency for rapid loss of control in the circumstances; and a tendency to either not think about, or else to diminish, long-term consequences when acting in response to a perceived threat.
The accused submitted that it was important to understand that the PTSD from which he was suffering, including the symptoms to which I have referred, was added to the fact that he was only 14 years and 6 months old, he was vulnerable, he lacked psychosocial maturity and was the subject of his conduct disorder.
In those circumstances, the accused submitted that it was not in doubt that he was substantially impaired at the time of the encounter, and that his conduct in stabbing the deceased was as a consequence of that substantial impairment.
He submitted that, in those circumstances, community standards would require a reduction of his criminality from murder to manslaughter.
The accused did not attend the Easter Show looking for a violent encounter with 67. He had no such purpose. The confrontation occurred by chance and without planning. There is nothing about the actions of the accused, or what was said during the confrontation, which supports the existence of such a motive.
It seems that the Crown relies largely on what the accused said after the stabbing of the deceased to demonstrate the motive. I am not persuaded that such material is anything more than boasting or bragging by an adolescent, who is psycho-socially immature, attempting to create or bolster an image of being a gang member. The self-recorded video, the intercepted telephone conversations, the electronic and handwritten notes do not, in my assessment, carry the meaning or weight which the Crown’s submissions attribute to them.
There can be no doubt that the accused went to the Easter Show and carried a knife with him. There is also no doubt that he wielded it in a way which caused a wound to the body of the deceased, which extended for about 65mm. There can also be no doubt that at the time the accused regarded himself as a member of RFA and had been involved in two previous episodes of gang-related violence, being the Shalvey Incident and the Moore Incident. I note, in respect of those two incidents, that the gang 67 were not said to be involved. Rather, two other gangs separate from 67 were nominated as being involved.
Two other matters warrant careful consideration. The first is that the accused told Dr Ellis this:
The words that were spoken were:
Thirdly, the very short period of the confrontation meant that the accused, in the presence of his PTSD, did not form any specific intention at all.
For all of those reasons, I am not satisfied beyond reasonable doubt that the Crown has proved that, at the time the accused stabbed the deceased, he had an intention to kill him, or to cause him grievous bodily harm.
Accordingly, there will be a verdict of not guilty of murder but guilty manslaughter.
However it is, in my view, appropriate for me to consider the other two issues in the trial.
I keep in mind, but do not repeat, the directions which I gave to myself above about the drawing of inferences and, in particular, the need for me to be satisfied before drawing an inference against the accused, that it must be the only reasonable inference which can be drawn in the circumstances.
The accused, in giving a history to Dr Eagle, gave this account:
In all of these circumstances, any aggressive words or other signs of aggression during the confrontation are likely to have come from the deceased or his associates.
I have earlier noted that I am not satisfied that the Crown has persuaded me, on balance, that the accused had the motive for which it contended when he went to the Easter Show. In the absence of such a motive, and in the absence of aggressive behaviour on the part of the accused or those with him, and in the presence of a chance encounter where the accused had the features I have earlier described of psychosocial immaturity, together with a clinically significant mental health impairment of PTSD, having the symptoms which have been described and which were accepted by the expert psychiatrists, it is entirely feasible that the accused perceived that he was the subject of a threat from the deceased, and genuinely believed that it was necessary for him to do what he did in order to protect himself from injury, and to protect his fellow gang members from injury.
In those circumstances, at the end of the Crown case, and having regard to the evidence of Dr Ellis, I am left in the position where I am of the view that it is a reasonable possibility that the accused subjectively believed that it was necessary to stab the deceased to defend himself or his associates. Accordingly, I am not satisfied beyond reasonable doubt that the Crown has proved that the accused was not acting in self-defence.
In those circumstances, in considering this issue, I would enter a verdict of not guilty of murder but guilty of manslaughter.
In substance, the question which I must ask myself is: