Solicitors:
Director of Public Prosecutions
Legal Aid Commission
File Number(s): 2017/368317
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Judgment
HIS HONOUR: Keith Charles Knights was arraigned before me when I was sitting at Lismore District Court on 10 October 2019 in relation to an indictment consisting of three counts. He pleaded not guilty to counts 1 and 2 and guilty to count 3. Count 1 averred that in breach of s 26 of the Crimes Act, 1900 that on 29 November 2017 at Eden Creek in the State of New South Wales he did solicit, encourage, persuade or endeavour to persuade a person or persons unknown to murder a New South Wales police officer in breach of s 26 of the Crimes Act. In the alternative, count 2 averred that on the same date and at the same place he intentionally or recklessly caused to be received by a person unnamed a document threatening to kill a person namely, a New South Wales police officer, the said Keith Charles Knights, knowing the contents of that document in breach of s 31 (1) of the Crimes Act. Count 3 averred that at the same date and place he did possess a prohibited weapon without being authorised to do so by permit.
The parties consented to the Court making an order for trial by judge alone pursuant to s 132 (2) of the Criminal Procedure Act, 1986 and I made such an order. Section 133 of the Criminal Procedure Act requires a judge conducting a judge alone trial in the judgment to enunciate the principles of law being applied and the findings of fact upon which the judge relies. Pursuant to subs (3) of that section, I am required to take into account any warnings required by any Act or any law to be given to a jury in such a case. I will set out in short the principles to which I have had regard including comprising the normal directions that I would give to a jury in such a case. I am the tribunal of fact as well as the tribunal of law. I am accordingly required to give myself the directions that would normally be given to a jury however, given that there is no jury, there is no necessity to give the customary directions about the difference in functions between tribunals of law and tribunals of fact. I give myself directions about the onus and burden of proof that is, in these matters being criminal allegations, the burden of establishing the guilt, if that can be done, is placed on the Crown and solely on the Crown. That onus rests on the Crown in respect of each element of the charges in the alternative that are the subject of the judge alone trial. There is no onus of proof on Mr Knights at all and it is not for him to prove his innocence but for the Crown to prove his guilt beyond reasonable doubt. I give myself a direction that it is critical to our system of justice that persons tried in this Court are presumed to be innocent unless and until they are proved guilty beyond reasonable doubt equating to what is generally known as the presumption of innocence.
The expression, "beyond reasonable doubt" is an ancient one, it is deeply ingrained in the criminal law of this State and requires no explanation from trial judges. Those words are ordinary English words and they should be given their ordinary English meaning. Note that any further explanation of those words is neither necessary nor desirable.
I also direct myself that it is important to bear in mind that suspicion, even the most grave suspicion, cannot be a substitute for proof beyond reasonable doubt. It also follows, given the onus and the burden of proof, that I must not speculate on issues that are not the subject of evidence.
At the conclusion of my consideration of all the evidence in the trial and the submissions made by the parties, I must ask myself whether the Crown has established the guilt of Mr Knights beyond reasonable doubt. In other words, I should ask myself in relation to each of the counts, is there a reasonable possibility that he is not guilty?
I propose to give myself without further articulation a direction about inferences and the importance in a criminal trial that an inference is a rational and justifiable inference. I give myself a direction about the use that can be made of the accused's record of interview both in terms of it being a possible account of the events in question and whether in any event it gives rise to a reasonable doubt as to the account contended for by the Crown. I give myself a direction that it is the vital elements of each of the offences that attract the obligation of onus of proof beyond reasonable doubt.
It is common ground between the parties and, as I understand it, one of the reasons that there was a view that the matter properly should be determined by a judge sitting alone that if Mr Knights were found to have committed either count 1 or count 2 that the matter would be the subject of a special verdict of him being not guilty by virtue of mental illness. That is because there is a concordance of psychiatric evidence from Dr Eagle and Dr O'Dea, both eminent psychiatrists supporting the proposition that Mr Knights, if otherwise guilty, has available to him a mental health defence. Putting that issue of ultimate disposition to one side, it is necessary to observe the following matters first; These remarks are delivered ex tempore on the afternoon of the last day of the trial on which the parties supplemented by way of written or oral submissions made by each of them at the outset of the trial. By way of summary, on 11 October 2019 at Lismore I received, by consent, a bundle of material that included some audio visual materials which were not then viewed by the Court. Having read that material during the interregnum between 11 October and yesterday being 22 January 2020 when the matter was next listed at trial in the Downing Centre. Yesterday in the presence of the parties, including Mr Knights, I had the opportunity to watch in court three sets of audio visual material. Material at tab 7 of exhibit A is a recording of a Facebook post which is the principal material on which the Crown says that the Court would be satisfied beyond reasonable doubt as to count 1 (and therefore there would be no necessity to consider count 2, being in the alternative). After viewing that material which was a Facebook post made, it is accepted, by the accused, of about forty minutes' duration, I then considered video footage of the execution of a search warrant at the accused's premises where he was residing both, as I understand it, at the time of the commission of the offence and more generally. Finally, I viewed a recording of the first record of interview conducted between police and Mr Knights. Within written material were transcripts of the second and third of those recordings and additionally, among other material, there was a transcript available of a preceding Facebook post made by the accused and a second record of interview between the police and the accused. Neither party contended that I needed to see audio visual representations of those events but could rely on the transcripts alone. Additionally by consent today, I received a further statement of Leading Senior Constable Peter Brodley of the Victoria Police which corroborated various matters raised by the accused although not all raised in the first record of interview.
The Crown contends that in relation to the disjunctive matters set out in s 26 of the Crimes Act that it relies on Mr Knights having "endeavoured to persuade a person or persons unknown" to murder a New South Wales police officer. It is accepted by the parties that it is not necessary for the prosecution to establish the identity of a particular officer. Police officers as a class is an available descriptor in terms of the asserted victim of count 1.
Before I come to some analysis of the relevant Facebook post both as to its wording and what is depicted in terms of Mr Knights' presentation while he made that post, I want to briefly go to some other material that is before me. The Crown contends that there is other material available that can be taken into account by the Court when I come to draw inferences about Mr Knights' actions and intentions during the time that he made the relevant Facebook post. There are broadly four categories of material apart from the post itself which the Crown says that I can take into account over and above the contents as well of the record of interview. The parties consented to me seeing a number of text messages conveyed between a number of parties but principally by Mr Knights to other people. Both parties say that that material puts Mr Knights' behaviour into a context. Mr Crown contends, in broad, that some of that material supports the notion of Mr Knights having an ongoing negative agenda in relation to the New South Wales Police and other justice officials. Mr Watts relies on some of that material where there are indications by Mr Knights that any action by community groups should be non-violent to draw a more benign inference to Mr Knights in relation to what he said during the relevant Facebook post. I have had regard to all of that material but the reality is that because it is separated in time and content it provided very little assistance to the Court in terms of the central task of drawing inferences about the behaviour on the day the offence is alleged to have been committed.
The second class of material is material that I could describe as material relating to the "Jolly Roger Cookbook". At the execution of a search warrant at Mr Knights' premises, it is clear from a locked container that it contained personal papers including papers having a more recent provenance than say twenty years ago was an index to a "Manual" which referred to a range of matters including potentially an ability to make bombs in certain circumstances, matters to do with prohibited drugs and other more arcane topics. Additionally, the prosecution is able to establish that at the time that Mr Knights was arrested in Brisbane, the laptop that he was then holding, although he had no material stored or downloaded of a similar nature on it, had once had inserted into it a USB stick that seems to have some documents consistent with some of the topics at least in the index of that Manual. As I have indicated, there is no evidence to suggest that that material was ever accessed, downloaded and certainly did not remain, if that were the case, saved on Mr Knights' laptop. The highest the Crown can put that material is to show that it cannot be excluded that at some stage, Mr Knights had an interest in some of the matters within that digest and like the text messages, that material, given the limited scope of it, provides me with no real assistance in terms of drawing inferences about Mr Knights' intention at the time that he made the Facebook post in question.
The third class of material is that at the time of the search warrant, it was discovered within a different locked container on Mr Knights' property that he was in possession of a vest that fits the description of being a prohibited weapon for the purposes of s 7 (1) of the Weapons Prohibition Act, 1998 that is, a vest that is designed to, among other things, repel bullets as I understand the evidence. Having seen the footage, it is clear that such material presented in a pristine condition and was not easily located because of its remote position within the container in which it was found. Although I accept it is an available submission for the prosecution to make, that that item could have been used in some kind of assault activity in relation to police or otherwise, there is no evidence to suggest that Mr Knights had ever actually used that vest despite possessing it (Count 3). It clearly was not readily available at the time of the search and in relation to that matter, I am prepared to accept the indications that the accused made that he had been given that material, that he had not used it and he did not have any intention of using it. I will deal with the appropriate penalty for that, the offence at count 3 at a different stage of these proceedings. That material similarly did not provide any real assistance in determining the central issue in this case.
The fourth class of material that the prosecution said could provide some assistance to me was an earlier Facebook post that was part of Exhibit B published by the offender earlier in time on 21 October 2017 and the further record of interview that went in part to that issue. Although it is fair to describe the contents of that post as containing some assertions of animus towards police or at least, corrupt police, there is nothing in its terms directly that assists me to draw inferences about the Facebook post in question.
Before I go on and deal with the satisfactions that I have formed in relation to the principal Facebook post, I just want to deal with one legal issue which perhaps would have been better addressed earlier in these remarks except that I omitted to do so. The parties were at odds as to the proper way in which the Court should determine the relevant legal issues. Mr Crown relied on a High Court authority of Hawkins v R [1994] HCA 28; (1994) 179 CLR 500; (1994) 122 ALR 27; (1994) 68 ALJR 572; (1994) 72 A Crim R 288 (29 June 1994) which has been either followed or adopted in an obiter fashion in New South Wales courts although it related to a Tasmanian provision in particular terms. In short, the Crown encouraged me to first determine whether the actus reus in this matter was made out and second, then turn to the issue of Mr Knights' criminal responsibility that is, looking at whether the mental illness issue obviated any need for me to turn my mind as it were to the mental element of a specific intention particularly for count 1 or intention of recklessness for the alternative count at count 2.
Mr Watts invited me to determine the matter in a fashion adopted by Sperling J in the case of R v Issa (unreported ) NSWSC 25 October 1995. which is first, to determine whether I was satisfied as to the actus reus down then determine whether the Crown had established the requisite mental elements absent any consideration of Mr Knights' psychiatric condition. If being satisfied as to those features, then turn my mind as to whether Mr Knights was criminally responsible in relation to conduct otherwise found. For abundant caution and in circumstances where Mr Watts contended that there was an availability of an absolute acquittal because of deficiencies within the Crown case, I have preferred to implement the latter approach. In a number of the New South Wales cases, the outcome in the matter would have been identical because the mental illness relied on as to criminal liability created problems for the Crown's ability to prove specific intent, whereas here, Mr Watts contended that there were, putting Mr Knights' mental illness to one side, circumstances that meant the Court would not be satisfied beyond reasonable doubt as to either the actus reus or the specific intent to be inferred from Mr Knights' conduct.
In assaying the relevant authorities, Mr Watts on the issue of one of the elements to the s 26 offence relied on the decision of N Adams J in the Supreme Court in the matter of R v Azari (No 1) [2017] NSWSC 404. In the circumstances of that case which was an allegation of solicit to murder her Honour held that there needed to be an actual agreement made for a murder to be carried out. Whilst that authority is of course both binding on me and of assistance in relation to a consideration of a case, differently cast than this one, the burden that the Crown has set itself here is somewhat lower. The Crown seeks to satisfy me beyond reasonable doubt that Mr Knights endeavoured to persuade a person or persons to murder a New South Wales police officer and obviously the language of persuasion is a lesser level of engagement than say a solicitation and indeed, the language of "endeavour" to is further conditioning language in relation to the element to be established as the Crown puts its case. As will always be the case in assessing evidence like the Facebook post or indeed, the record of interview between Mr Knights and the investigating police, it is important to have careful regard to the words used but also careful regard to the way in which matters are communicated.
In relation to the Facebook post in question, as I have already indicated, the recording takes about forty minutes. Although the Crown relies on the latter half of p 14 and most of p 15 of the fifteen page transcript, it is important to have regard to both the whole of the content and the way that material was delivered. Without being slavish about it, the following would be my broad summary; Mr Knights was transmitting his message from a remote location at the top of his rural property in the Northern Rivers region of New South Wales. He sets out a set of circumstances in his own life and his perceptions about those circumstances. On the material before me, there is no real way of assaying the accuracy or otherwise of what he sets out. Importantly, he has a charter of dissatisfactions about the way in which he has been treated or things that he has observed principally by New South Wales police officers who he considers to be corrupt, including identifying on occasion a number of particular officers including in some circumstances, clear allegations of what would be, if proven, corrupt and criminal conduct. Alongside that, the procedural history of some of what I read for current purposes to be broadly traffic related matters and fines or other imposts being imposed at one level of the judicature and then overturned by another. Arguably there were some miscommunications or mis-recordings about those events mean that he expressed within the Facebook post a range of dissatisfactions principally to do with either Registry staff at Kyogle Local Court or at Lismore District Court and identified a particular judicial officer he maintained had behaved in a corrupt fashion and was involved in some of the matters that, broadly put, could be characterised as conspiracies either against Mr Knights in particular or against other locals in the Northern Rivers region.
In viewing the material, one matter that has relevance in my mind although I accept this was not addressed by the parties and I have not taken it up with the parties but because it is a matter of my assessment of the evidence, I do not consider there is any unfairness. When recounting the prehistory, as I would describe it, of his life circumstance, Mr Knights often is not looking at the camera or is behaving in a fashion that I would describe as being relatively disengaged. About at the point where the Crown identify conduct is committed that both makes out the actus reus and the mental element of count 1 or in the alternative, count 2, my observation was that Mr Knights became significantly more focussed. The best way I can articulate it is, the accused seemed much more decisive in terms of the content that he was delivering within that portion of the Facebook post. In particular, the Crown relies on the following passage as commencing the material relied on within the Facebook quote, "Now someone really needs to take a stand and what I mean by that is we mean to rowdy up and say no more." It is at the commencement of that passage that I have made a note when watching the material in court that there was what I would noted as a "Change in mood." Thereafter, after some other things were said, the post records, "And I encourage you to take up arms be they pen and paper or be they actual arms,' and then in an apparent attempt at humour and photographing his leg or legs;
"There are several locations around the shire, around the Northern Rivers that make excellent locations for an ambush. I say it's time to play these fuckers at their own game."
A little bit further down, "No fucking more no more." The principal passage relied on by the Crown is the following;
is time to rise up and shut down these drug dealing cops so when they come for their cut or their bunch of chemicals you have every right as free citizens to ambush them and to kill them and yes you did hear me right that's what I said."
One of the principal parts of Mr Watts' submission was that to the extent that that material might be read as an exultation to kill some innominate police officer or police officers, that it should be read as being if you like, conditioned by a precedent action by those police that is, "So when they come for their cut or their bunch of chemicals." Mr Watts puts that if that illicit action by the innominate police was sufficiently violent that what Mr Knights sets out is an accurate dissertation of the legal position. That is, that if there was a significantly violent threat that somebody could oppose that threat on the grounds of self-defence even if it meant killing those attackers. While I do not disagree with that as a legal proposition, I am not satisfied that the reading of the words to, "Ambush them and to kill them," can be so narrowly read against the back drop of the earlier matters that I have identified. Additionally, later in the text Mr Knights expressed himself in ways that are connected with his own thinking and to my mind, not conditioned by some malign precedent act by the innominate police. As examples;
"I also know a thing or two about strategy and tactics. I'm at the edge. I've got nothing else I could you know I've got nothing to lose basically."
And further down;
"And I am ready now to attack. Anyone that's with me I'll only be too happy to help you."
and a little bit further down;
"Just think about it. I think it's time to castrate some pigs let's start with their cars."
And that virtually ends the post.
Notwithstanding Mr Watts' persuasive and elegant attempts to read down the content of the material, having seen it and taken into account not only the word content but the manner in which the material was delivered and accepting that while certain police officers were identified in Mr Knights' preamble, there was nothing to suggest that his actions were designed to have people take actions against those particular police officers but rather, corrupt New South Wales police officers as a class, I am satisfied that the words said in the context and the way they were said can properly satisfy me that the accused was endeavouring to persuade a person or persons unknown to murder a New South Wales police officer. It follows that I am satisfied beyond reasonable doubt as to both the actus reus and, drawing the appropriate inferences, a mental element in relation to count 1. I have considered carefully what Mr Knights said in his record of interview. Although at one stage he had indicated he did not really remember what he had said, his statements about his intention included indications of remorse, indications that he had no intentions to act on what he said but also on occasion, indications that he said things that were stupid or things that were as a result of him becoming heated. I have considered his indications that when he spoke of ambush he was really talking about a roadside political activity which is entirely inconsistent with an ambush consistent with some kind of murderous intention; I reject that account given the contents of the other material in the post itself. It just does not seem to me to be available from all he said in the past. I am satisfied at law that Mr Knights is guilty of count 1 as to the proof of the essential elements. Accordingly, there is no need for me to go on to consider count 2 given it is in the alternative. Having found he would otherwise be considered to be guilty of that offence, having considered the esteemed psychiatric material and the parties' joint position, I am satisfied that Mr Knights at the relevant time suffered from a disease of the mind that excuses him from criminal liability. Although Dr Eagles' report is in slightly more unqualified terms than Dr O'Dea's report, I have had the benefit of an email message that was forwarded by Dr O'Dea, who was apparently away from his rooms and on leave at the time that the report was forwarded to the Court. That material makes it was clear that Mr Knights' mental condition at the relevant time means that the accused can in an unqualified fashion rely on the mental illness defence. Accordingly, the verdict is that I make a special verdict in relation to count 1 that Mr Knights is not guilty by reason of his mental illness and it then falls to me to make an order and I make that special verdict pursuant to s 28 of the Mental Health (Criminal Procedure) Act, 1990.
There is a capacity for me to call for an independent report before I make consequential orders but it seems to me in the circumstances of this case absent hearing from the parties that I would proceed to make a general order under s 39 of the Mental Health (Criminal Procedure) Act.
Pursuant to s 39 I make an order that Mr Knights be detained in such a place and in such a manner as the authorities think fit until released by due process of law. I note for administrative purposes that Mr Knights has been held as a forensic patient at the Long Bay Prison Hospital and it seems sensible absent any other movement through the treatment system that he at least be accommodated there again now or at such other facility as directed by the Mental Health Review Tribunal.
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Sentence
HIS HONOUR: Mr Knights has pleaded guilty to a charge of possessing a prohibited weapon without being authorised to do so by a permit in breach of s 7 of the Weapons Prohibition Act. I am prepared to treat his plea in all the circumstances as being an early plea. I accept it was entered on indictment but against the backdrop of the more serious charges and his issues about his fitness to plead earlier in the proceedings. I think it is proper to characterise it as an early plea of guilty. I accept that he is remorseful about that matter and he expressed his remorse about that matter in his record of interview. In relation to that matter, I am prepared as I indicated in my reasons for judgment on the principles offences to accept that he never used the vest and that he received the vest as a gift from a neighbour. Having seen the search warrant and seen the condition of the vest when he was interviewed by police it is clear that that was an item that remained in pristine condition. Ironically, given that the Weapons Prohibition Act is really about condemning and controlling and containing items that can be used to hurt people, although this item fits the definition of a prohibited weapon for the purposes of the Act, it is a bulletproof vest. Whilst it could be used in a malign fashion when misbehaving, it does not have at its core the qualities that other weapons have, that is, an ability to wound or harm or kill. Given that Mr Knights has been in custody for some long period of time on remand for these matters which have now been disposed of in a fashion that the other matters that will not attract any direct imprisonment and having considered his relatively limited antecedents, I am not persuaded that this is a matter that would normally attract a prison sentence and I decline to impose a backdated prison sentence where that outcome is not really justified by the offending. Accordingly in relation to count 3, he is convicted pursuant to s 10A of the Crimes (Sentencing Procedure) Act without there being any other penalty.
Mr Knights it was available to me had I chosen to give you some backdated prison sentence in relation to that matter. I'm not doing that. I'm dealing with it by marking out what I consider to be the particular criminality of that matter in that particular circumstances of where it was, how you got it and how you didn't use it. Accordingly, I have imposed a conviction so that will remain on your record, but there's no other penalty in relation to that matter.
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Decision last updated: 21 May 2020