R v M.J.J.

Supreme Court of NSW|2004-02-18|Before: Barr J

CITATION : R v M.J.J. [2004] NSWSC 57 HEARING DATE(S) : 04/02/04, 05/02/04, 09/02/04, 10/02/04, 11/02/04, 12/02/04, 16/02/04, 17/02/04, 18/02/04 JUDGMENT DATE : 18 February 2004

JUDGMENT OF : Barr J at 1 DECISION : I find the accused not guilty of the attempted murder of T.S. and I direct the entry of a verdict of acquittal on that charge; Pursuant to his plea of guilty, I convict the accused of the malicious wounding of T.S. with intent to do her grievous bodily harm; I find the accused not guilty of maliciously throwing an explosive substance at T.S. with intent to do her grievous bodily harm and I direct the entry of a verdict of acquittal on that charge; I find the accused guilty of maliciously wounding C.B. with intent to do grievous bodily harm to a person. I convict him on that charge; Pursuant to his plea of guilty I convict the accused of using a prohibited weapon without being authorised to do so by license or permit.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

REASONS FOR VERDICT THE ISSUES FOR DETERMINATION 1 HIS HONOUR: On the day before the commencement of his trial the accused formally elected in accordance with s132 Criminal Procedure Act 1986 for trial by judge alone. The Crown consented. The trial has accordingly proceeded before me alone. The accused and the two complainants were sixteen years old at the time of the events giving rise to the charges. Accordingly I shall refer to them throughout these reasons only by their initials. For much the same reason I shall refer to most of the witnesses I mention only by their initials. 2 The counts in the indictment may be summarised as follows- 1. On 3 April 2003 at Salamander Bay, New South Wales the accused wounded T.S. with intent to murder her; 2. Alternatively to the first count, at the same time and place the accused maliciously wounded T.S. with intent to do her grievous bodily harm; 3. At the same time and place the accused maliciously threw an explosive substance, namely a petrol bomb, at T.S. with intent to do her grievous bodily harm; 4. At the same time and place the accused maliciously wounded C.B. with intent to do grievous bodily harm to a person; and 5. At the same time and place the accused used a prohibited weapon, namely a crossbow, without being authorised to do so by any license or permit.

3 The accused pleaded not guilty to the first count but guilty to the second. The Crown declined to accept the plea in discharge of the first count. The accused pleaded not guilty to the third count. With respect to the fourth he pleaded not guilty but guilty of malicious wounding. The Crown declined to accept the plea in discharge of the fourth count. The accused pleaded guilty to the fifth count. 4 All the charges arise out of the activities of the accused shortly after 8:00am on Thursday 3 April 2003 at a certain high school where he, T.S. and C.B. were pupils. The accused took a crossbow and fired a bolt at T.S. The bolt passed through her body and lodged in the legs of C.B., pinning them together. By his plea of guilty to the second count the accused has formally admitted all the elements of the first except the intent to murder. That is the only issue on the first count. 5 Within a short time after he fired the bolt at T.S. the accused lit the fuse of a homemade incendiary bomb, consisting of a bottle containing a mixture of petrol and oil, and threw it in the direction of T.S., who was receiving help and comfort from a schoolmate. Although the bottle broke near the feet of T.S. and her helper the contents did not ignite. The two issues of fact that arise on the third count are whether it was at T.S. that the accused threw the bomb and whether in doing so he intended to do her grievous bodily harm. 6 The resolution of the remaining count, the fourth, depended upon the success or failure of an argument of law made on behalf of the accused. It is common ground that the injury done by the bolt to C.B. amounted to a wounding but that the accused intended her no harm. By his plea to the second count the accused admitted intending when he fired the bolt to do grievous bodily harm to T.S. The question was whether that intent was sufficient for proof of the element of malice in the fourth count. Counsel agreed that if it was, the accused should be found guilty on the fourth count. In a judgment delivered on 16 February 2004 I decided the question in the affirmative. I shall therefore find the accused guilty on that count.

THE FACTS 7 The accused and T.S. had known each other for years as fellow pupils. A short time before the end of the 2002 school year they became boyfriend and girlfriend. The relationship did not last long, however. It appears that while not uninterested in the things the accused liked to do, T.S. wanted to devote time to other interests as well, whereas the accused thought that she should be spending more time with him. On 18 February 2003, not long into the new school year, the accused announced to T.S. that their relationship was over. 8 Before becoming friendly with the accused T.S. had had a friendship with a boy whom I shall call B. He attended the same school and was a friend of the accused. During the time that the accused was thinking that T.S.' commitment to him was not as he would wish, others were telling him that she still spoke about and liked B. 9 The accused harboured a resentment of T.S. and I am satisfied that about the time when the relationship ended he said in the presence of a group of friends that he would teach her a lesson when she least expected it. He laughed as he spoke and for that reason no one seems to have thought that he meant what he said. He did, however. On another occasion after the ending of the relationship he said that he was going to get T.S. 10 About a month before he shot T.S. and C.B. the accused told friends that he was going to buy a crossbow. He asked them to keep quiet about it. He said that he wanted to use it to shoot pigs. He did not want his parents to know and asked one friend whether he would take delivery of the crossbow at his house. The friend refused and he asked another. That friend agreed. 11 At 5:18pm on 17 February 2003, the evening before he told T.S. that their relationship was over, the accused sent an email message to John and Lyn Clark of Goolwa, South Australia, who traded under the name Ausbow. The message was as follows- My friend has a property and we are going to go halves in a good crossbow for hunting, we think the Paradox looks good, though, we are not sure if the price listed is for all that is nessesary (sic) for it to be ready to go. Does it come with everything but the bolts? Or do I need to get the strings for it aswell, and if so, which strings are required for this particular bow & price, aswell as which bolts go with it & price for them too. You'll have to excuse us if we sound dumb, but we've been thinking about it for ages, and now we want to know more about it….thanks a lot, 12 Mr Clark replied at 6:56pm as follows- Thanks for your enquiry. Firstly, I need to advise that crossbows are illegal in NSW, except for target shooting at designated archery clubs. It is not illegal for us here in SA to supply crossbows to NSW, but there are heavy fines if you get caught. The price for the PARADOX is currently $940.00 and that is just the basic crossbow with no accessories or bolts. Otherwise it is ready to shoot. Changing strings on a compound crossbow such as the PARADOX is really a workshop job and unless you have an archery dealer nearby I would not recommend it. You can change strings on a recurve bow (VIXEN, EXOCET and EXOMAG) easily and without tools). Attached please find our price list. I hope you can read it ok. 13 There was this exchange later on during the same evening- The accused: Yes, OK, now all I need to know would be which bolts are best suited for me, you tell me because I don't have a clue. Thnx Clark: The bolt choice is yours - aluminium alloy or carbon. Either will do the job. To start with I would suggest aluminium - 2117-V20. Your will need some target points, The choice of broadheads is personal. 14 On 26 March 2003 the accused ordered a crossbow, six carbon broadheads, six target points and six aluminium alloy bolts fitted with plastic flights, known as fletching. He paid by quoting particulars of a credit card he had removed without permission from his mother's handbag. He requested delivery to the house of the friend I have mentioned. The goods were dispatched by the supplier, addressed to the accused at that place and in due course the accused's friend received a note from the post office requesting collection of a parcel. He told the accused and they went to the post office together. There the accused identified himself and collected the goods. That was on 2 April 2003. The two of them took the parcel to the accused's house and there opened it. With the crossbow, the bolts and the heads were an instruction manual and a video-tape. They assembled the crossbow. 15 A crossbow consists of a stringed bow, mounted horizontally at right angles across a shaft which ends in a handpiece not unlike the stock of a rifle. In order to prepare a crossbow for firing it is necessary to do two things. First the string has to be drawn up along the shaft towards the stock until it engages in the firing position. Then the bolt has to be placed in a groove in the shaft and drawn backwards up the shaft into the firing position with the end of the bolt touching or close to the string. Below the stock is a trigger, much in appearance like that which one would see on a rifle. There is a safety catch which when engaged inhibits the pulling of the trigger. When the safety catch is released the bolt may be fired simply by pulling the trigger. The string is pulled forward as the bent arms of the bow straighten and the arrow is propelled forward along the shaft. Sights may be attached. 16 The accused and his friend tried cocking the bow but each found it impossible to pull the string back far enough. They managed to carry out the procedure jointly. They "fired" the bow without inserting a bolt. They were joined by the friend's brother, an older and stronger person, and he cocked the bow by himself. It remained cocked with the safety catch on until the following day. The friend and his brother left. Although the videotape I have mentioned contained instructions for assembling the bow I think that they probably did not watch it before assembling the bow. I accept the evidence of the friend in that respect. 17 By his purchase the accused had obtained two kinds of heads for his bolts, namely target points and broadheads. Target points have a rounded tip and are designed to be fired at targets. Broadheads are designed to kill animals. No doubt the supplier suggested broadheads because the accused had told him that he wanted a bow to hunt on a property. He would have understood that the accused wanted to kill animals. 18 A broadhead comprises a tapering metal, probably copper, shaft ending in a pointed black metal tip. Running along the shaft are three narrow grooves. The broadhead is assembled by inserting into each groove a triangular flat piece of what looks like high-speed steel, much like a razor blade. The base of the triangle fits into the groove and the apex has an angle of about one hundred degrees. So fitted, the leading edge of the triangle slopes back from the shaft at about twenty degrees. It is very sharp. The grooves and therefore the blades are set equidistantly around the shaft of the head, so the blade surfaces diverge from one another at an angle of one hundred and twenty degrees. The apices of the blades are 9mm proud of the shaft and 2.4cm apart. 19 The bolt is assembled by screwing the assembled broadhead into the leading end of the shaft. Towards the rear of the shaft are fixed three plastic vanes, offset to make the bolt rotate as it flies. As with a rifle bullet, the intention is to make the bolt fly true. A necessary result is that the blades of the broadhead are rotating when they strike their target, though there was no evidence as to the speed of rotation. 20 The accused assembled the broadheads and fitted them, rather than the target points, to the bolts. 21 He loaded one bolt into the crossbow. 22 The accused had researched the internet and had learned how to make bombs. He decided to make some. A week or more before the shooting he purchased bottles of sauce and emptied and cleaned them. He obtained petrol and oil. He made two bombs by putting into each of two bottles a mixture of petrol and oil. He screwed down the caps and taped a sparkler to each bottle. He obtained a can of deodorant spray containing an inflammable fluid mixture. 23 The accused lived at his parents' house a few kilometres from school. He was usually driven to school and occasionally cycled. He never walked. On 3 April 2003 he got up very early and left a note for his parents to tell them that he was walking to school. He put the crossbow, loaded with the broadhead, into a suitcase. The bow was too long and the stock protruded. He covered it with a garment. He also put into the suitcase a fishing rod which also protruded. He took those measures so that no one would suspect what he was doing. 24 He put the incendiary bombs and the can of deodorant spray into his school backpack. He took a lighter with him. 25 He walked to school and arrived a short time before 8:00am outside a science laboratory. He knew that pupils, including T.S., gathered there at that time of the morning. 26 T.S. saw him approaching with the suitcase and turned to face away from him. He put down the suitcase and bag and took out the crossbow. He walked towards her carrying it. She glanced at him and saw that he was carrying something but did not know what. She began to walk around the corner of the building from the eastern to the southern side. She saw that the accused was holding something up to her, which she thought might have been a strange toy. She did not remember, and she may not have heard, but the accused walked after her and told her to turn around. She did not do so. He fired the bolt. 27 The bolt made a clean, straight wound through the thickness of T.S.'s chest, entering to the left of the spine and emerging high on the left breast. Exhibit AO contains photographs showing the entry and exit wounds, but it is not possible to ascertain from them, and there is otherwise no evidence, what are the relative distances above ground of the two wounds, assuming that T.S. was walking upright when shot. Upon such an assumption the wounds look about level with one another. There is no evidence, either, of the precise attitude of T.S.'s upper body at the relevant time. 28 The evidence about the manner in which the accused held and discharged the crossbow varies from firing from the shoulder with the head inclined to the right, sighting down the deck of the crossbow, to firing from about chest height. Even the lower end of this range produces a starting point above ground level for the bolt which is higher than the probable height of T.S.' entry wound. The bolt apparently struck no hard material in the body of T.S. Although the surgeon, Dr Mihrshahi, could not be dogmatic about it, he thought that the bolt probably passed between the ribs, back and front. Any resulting bone damage did not show up on X-ray, though the effect of Dr Mihrshahi's evidence was that minor damage might not be able to be detected by that means. I conclude that if there was any bone damage it must have been slight. There is no reason to think that the bolt would have undergone any significant change of direction, since all it appears to have struck was soft tissue. There is no evidence of its speed, but it must have travelled very fast. Its point and the leading edges of the blades were very sharp. All these signs combine to show that the bolt was at its greatest height above ground when it was fired and at its lowest when it came to rest, having penetrated the leg of C.B. The general size of T.S's body, the fact that I see no significant difference between the height above ground level of the entry and exit points on her body and the fact that nothing is known of the inclination of her upper body at the time of the shot show that there is no evidence inconsistent with the conclusion that the bolt flew in or virtually in a straight line. I think that the possibility that the bolt changed direction as it passed through the body of T.S. is slight. There seems no reason to conclude other than that the bolt flew in a straight or virtually straight line between the time it was fired and the time it came to rest. 29 The evidence shows that between the time T.S. saw the accused and the time he shot her she walked around the corner of the building from the eastern to the southern side. As the accused followed her he remained further from the building. At the time of the shot he was on T.S.' southern side and the building was on her northern side. C.B. was closer to the southern wall of the building, seated on the bench that was fixed there. T.S. was walking towards her. At the critical time, the accused, T.S. and C.B. were aligned roughly south-north. The witnesses with the best opportunity to notice how far the accused was from T.S. at the time of the shot were those towards the western end of the southern side of the building. They had a side-on view. They were R.S, R.J. and C.B. The effect of their evidence, including their descriptions and their markings on a scale plan a copy of which is exhibit AN, is that the accused was about two metres or a little more from T.S. when he shot her. Another witness, C.C., who was also on the southern side of the building, gave consistent evidence, describing the accused as "pretty close" to T.S. M.G. also said that the accused was about two metres from T.S. The accused told the police that the distance was about two and one-half metres. I conclude that the distance was between and two and two and one-half metres. 30 Having passed through the body of T.S., the bolt struck C.B., who was seated on the low bench next to the wall. It penetrated the whole thickness of the calf muscle on the lateral aspect of the right leg about one third of the way between the knee and the ankle and entered the antero-medial aspect of the left leg above the knee, narrowly missing the patella. The point of the broadhead took a divot out of the distal femur and came to rest there.

31 T.S. was bleeding and felt the warmth of the blood on her chest. She walked back to the eastern side of the building and sat on a low bench against the wall. A schoolmate, whom I shall call R.C., went and sat beside her and tried to do what she could. In the meantime the accused had walked back to the place where he had left his suitcase and backpack. He took out one of the bottles and lit the sparkler with the lighter. When it was burning he threw the bottle in the direction of the building next to which T.S. and R.C. were seated. The eyewitness accounts of the place where the bottle landed vary but the preponderance of them, taken together with photographic evidence of the splash marks left by the oil, show that it landed near the feet of T.S. and R.C. close to the foot of the building wall. It may have hit the concrete floor first. The glass smashed as intended but the sparkler did not ignite the contents of the bottle. 32 Still standing next to his bag, the accused removed the second bottle, took the lighter and made to light the sparkler. Before he could do so he was tackled by a number of boys and brought to the ground. 33 Ambulance officers treated T.S. and C.B. at the school. They severed the bolt which was pinning C.B.'s legs. Both complainants were taken to hospital and treated. 34 Police arrested the accused and took him to a police station. They ascertained his age and informed his parents. The accused had access to legal advice and decided against that advice to take part in an interview with the police. There are in evidence a videotape of the interview and a typed transcript of what was said. THE CROWN CASE 35 Proof of the offence of attempted murder requires proof of an attempt to kill: Knight v The Queen (1992) 175 CLR 495. These seem to be the principal matters the Crown relies on to prove that intent- · the accused chose a broadhead, which he knew was designed to kill animals; · the accused intentionally shot T.S. in the chest, the part of the body an intending killer would aim for; and · knowing that T.S. was wounded and helpless and no threat to him, the accused threw a lighted incendiary bomb at her, intending to set her on fire. 36 The case is circumstantial. The Crown must therefore remove any reasonable explanation of the events consistent with innocence, that is, any reasonable inference that the accused did not intend to kill. On the third count, in the way this trial has been conducted, the Crown must remove any reasonable inference that the accused was not aiming the bottle at T.S. It must prove beyond reasonable doubt that he was. There have been no submissions, and could hardly have been in the circumstances, that if the accused did throw the bottle at T.S. he did not intend thereby to set her on fire and do her grievous bodily harm. 37 The evidence shows that when he ordered the crossbow the accused had never fired one. As the text of his first email message shows, however, he knew something about crossbows. He knew that they could be used to hunt, that is to kill animals. He knew that the arrows they fired were called bolts. The accused must have appreciated that if he told a supplier that he wanted a crossbow to fire at a human being his enquiry would not succeed. If he was going to state his purpose he was going to have to lie. Two questions arise, namely why he found it necessary to state a purpose at all and why, having decided to do so, he said that he wanted to hunt. 38 The accused was asked about this in the police interview. There were these questions and answers- Q. Did you have any knowledge about crossbows prior to purchasing this? A. No. No.

Q. Why did you buy it? A. This was, this was after, um, I broke up with T.S., there, like lots of reasons really um, not so much that I wanted to kill anyone but um… (ACCUSED'S FATHER) Q. Did you want to scare someone? A. I, I don't know, I just, I don't know. 39 Earlier in the interview the accused had agreed to a suggestion that he wanted to scare T.S. a bit. 40 I think that the accused wanted to make sure that he obtained a crossbow and bolts that were capable of killing animals. I think that he must have known that such equipment was capable of killing a human being. I do not conclude, however, that he had then decided to kill anyone. The coincidence of the enquiry and his announcement to T.S. that their relationship was over shows that the accused was then considering harming her, though I do not conclude that he had at that time decided to kill her. I am satisfied that, as he said in evidence, one reason why the accused chose the most expensive and powerful crossbow in the range and used the broadhead bolts was to scare T.S.

41 The videotape that came with the equipment was entitled 'The Hunting Crossbow'. It came from the accused's house after his arrest. On the box which contains the cassette it is described as AN IN DEPTH VIEW INTO THE EXCITING SPORT OF CROSSBOW HUNTING

42 On the back of the box it says this-

29 - The Hunting Crossbow takes crossbow hunting out of the realm of black art and into the space age. Covering every aspect of crossbow hunting, it is a must see for anyone who is beginning, or considering beginning this electrifying sport, but still has plenty of useful information for the seasoned crossbow hunter.

Shot in Ontario and Ohio, this video features the thrill of real hunting combined with down to earth advice from four recognised crossbow hunting experts.

The Hunting Crossbow is exciting, it's informative, and we know it will make your time afield with your crossbow more successful and enjoyable! · CROSSBOW HISTORY · SELECTING A HUNTING CROSSBOW · CROSSBOW DYNAMICS · SHOOTING BASICS · TARGETS AND TRAJECTORIES · BROADHEAD SELECTION · HUNTING TECHNIQUES · SHOT PLACEMENT 43 The videotape takes about seventy minutes to play and has a number of sections. In the first, which lasts eight minutes, a man demonstrates assembling the bow. The bow is not fired. In the second section accessories are discussed, the first being telescopic sights. The viewer is shown how to fix such a sight to the crossbow. Later sections show how to cock the crossbow and apply the safety catch and how to fire the bow. One section shows how to shoot at game animals with maximum effect, which part of the body to aim for and how shots into the heart, into the major blood vessels above the heart, into the lung and the liver are killing shots. 44 During the interview with the police there were these questions and answers- Q. Just in relation to usage of the crossbow, have you ever fired it before? A. No. Q. No. So you're no expert in firing? A. No. Q. So if you were aiming at her stomach you mightn't have even been aiming at her stomach then. A. Um, no, I, yeah, no, no, I knew, I knew it would have hit her in the stomach, yes. Q. Well, how do you know that if you've never fired it before? A. Um, I watched the video that came with it, kind of, kind of basic tutorial. 45 In his evidence in chief the accused said that he had watched the video after his friends left but only up to the point at which the demonstrator was fixing the telescopic sight to the crossbow. There was this evidence- Q. Is there any reason why you didn't watch any more of that tape? A. I - I thought the whole video was just him advertising accessories and I'd already put it together and I didn't have those accessories so I didn't - I didn't think there was any need to watch the rest of it. 46 In cross-examination there was this evidence- Q. And you told Mr Zahra that you watched it up to the point that the fellow who was first on the video was attaching a telescopic sight? A. Yes. Q. To the weapon that he was displaying? A. Yes. Q. And realising it involved accessories and a discussion about an accessory pack and you didn't have, you turned the video off, is that what you say? A. Yes. Q. And that attachment of the telescopic sight is virtually the first thing that happens on the video? A. No it was a few minutes into it, probably fifteen. Q. There's a short period of discussion and then Mr Troubridge demonstrates the accessory pack as the first subject segment on that video tape? A. It was - the accessories went straight him assembling it, yes. Q. And the first thing that he does in the accessory segment is to attach the telescopic sight? A. Yeah, yeah.

47 The Crown submitted that the accused accurately described the videotape to the police as a tutorial and that he could not have known that it was a tutorial unless he had watched all of it. The next step in the argument was that the accused would have learned from the videotape where to direct a killing shot at a game animal and, by extension, at a human being. 48 Of course, the accused could have deduced from what it said on the back of the box that the videotape was a tutorial. If he had done so, of course, he could not truthfully had said in evidence that he thought that the whole videotape just advertised accessories. 49 These matters call into question the truthfulness from time to time of the accused and it is convenient to pause and consider that matter now. The accused is a person of prior good character and the court is to take that fact into account as affecting the likelihood that he is telling the truth. I do so. 50 As well as this attack on the accused's truthfulness the Crown submits also that he was less than frank when, during the interview with the police, he completely left out of his otherwise complete account of his preparations any reference to the friend who took delivery of the crossbow and helped him assemble and cock it. 51 The Crown also criticised the accused over his description in his evidence and in the interview of the sequence of events at the time he threw the bomb. His first reference to the subject in the interview was as follows- …opened up my bag and I took out um, one, one Molotov cocktail and threw it but it didn't ignite, obviously I don't know how to make it, but um, then I was, I started walking like walking back a bit, people were like running at me then…

In evidence he said- Q. What was your intention when you threw that Molotov cocktail? A. I saw everyone running in all directions, a lot of people running towards me, I wanted to throw it to scare them off. 52 The Crown's submission, I think, was that the accused had in his evidence, as well as in a later account in the interview, changed the sequence of events so that he first saw people running and then threw the bomb. So the changed version contained a reason for throwing the bomb, whereas the original one did not. 53 I do not think that these criticisms of the accused's credit have been made good. Taking them in reverse order, I doubt whether the accused's initial description to the police was intended to describe the precise sequence of events at the time that he threw the bomb and I see no significant inconsistency between his initial and his subsequent description of events. 54 It is entirely understandable why, although the accused gave a complete and detailed description of his own preparations and activities (and in doing so gave police information they might never otherwise have come by) he left out any mention of his friend. I accept that the accused never told his friend what his purpose was. The friend believed that the accused wanted the crossbow to hunt. He was not complicit in the accused's criminal activities. 55 As to whether the accused watched the videotape, as he told the police, or whether he did not, as he told the court, I accept the explanation he gave in evidence. I am satisfied that during the interview he was concerned to justify his repeated assertion that he had intentionally shot T.S. in the stomach. It was in defence of his ability to direct a shot where he wanted that he told the police that he had watched the videotape. I think that he probably did not watch it. He was a meticulous person who planned his course of action over a substantial period of time. I think that he would have watched the videotape if time had allowed, but time ran out on the evening of 2 April 2003. His family was coming home. He had to get up very early on the following morning and so, I think, was denied the opportunity to watch the videotape. 56 These discrepancies in the accused's accounts from time to time do not cause me to doubt his truthfulness generally, either in the interview with the police or in his evidence. I was impressed with his demeanour during the interview and with the completeness and accuracy of information he volunteered. And there is another reason for my conclusion, which I shall explain shortly. 57 I conclude that the accused did not watch the videotape, at least to the part that dealt with the shooting of animals. Ultimately, however, nothing turns on this conclusion because I think that the accused, like any other person, would have known that a good way to kill a person would be to fire a broadhead bolt into the chest. 58 The Crown invited the court to infer from the position of the entry wound at the rear of the chest of T.S., level with the heart, and from the missile used, that the intent of the accused was no less than to kill. This requires an inference that the bolt went where the accused wanted it to go. The evidence bearing on the question whether the accused intended to hit T.S. in the chest is as follows. First, that which tends to show that that was his intention- The accused fired from close range, somewhere between two and two and one-half metres; The accused prepared himself carefully to fire, was calm and not rushed; No person or event intervened to spoil his aim. The crossbow and bolt were new and nothing about their appearance shows that they might malfunction; Nothing about the way the bolt flew suggests any malfunction;

59 The evidence and arguments tending the other way are these- The accused had never fired a crossbow before; The accused did not aim carefully but lowered the crossbow and fired from the chest; T.S. was a moving target and the accused was moving as well; The accused was human and might have made a mistake; The accused told the police that he aimed for the stomach; There is no evidence to show that the crossbow fires true - it was never tested; The string may have been cocked unevenly; The crossbow is very heavy and not easy to hold steady. 60 I do not need to reiterate the evidence and arguments in favour of the proposition because they really speak for themselves. I am not impressed by the argument that the bow was not tested or that the string might have been cocked unevenly. This last submission related to a portion of the videotape explaining the importance of having the same degree of tension on each side of the string. When a bow is cocked the centre of the string is pulled back and engages with the firing mechanism, thereby describing a v-shape. If the tension on the string between the centre of the bow and one arm is greater than that on the other side the bolt will tend to fly off to the left or the right. The deviation at twenty yards can be as much as four inches. 61 It is, of course, a possibility that such a thing might have happened, but I think that the distance between the accused and T.S. was so small that even if the string had not been drawn back evenly by the friend's brother any lateral deviation would have been very small indeed, a matter of millimetres at the most. There is no reason, judging by the way the bolt flew to suppose that the crossbow or the bolt malfunctioned at all. They do not appear to be faulty in any way. 62 Moreover, the crossbow is a sturdy instrument. It is made of stout materials. It is essentially a very simple piece of equipment. It does not employ a great number of moving parts or equipment that needs calibration. 63 In my opinion the crossbow might not have been as easy to aim as might at first appear, especially for a person who had never aimed it or any other crossbow before. The crossbow was tendered in evidence. I have not attempted to fire it but I have lifted it as though for firing. Excluding the stirrup, which is mounted at the front as an aid to cocking the bow, the crossbow is about ninety centimetres long. The metal deck, which begins immediately forward of the stock and grip and carries through to the front of the weapon, is about sixty centimetres long. The deck is wholly of metal. The bow, which is mounted upon it at the front of the weapon, appears to be of spring steel. The stock, on the other hand, is constructed of a light plastic material. Not only is the weapon heavy. It is front-heavy. I can well understand an inexperienced person having difficulty holding the crossbow steady, so much is its weight concentrated at the front, farthest from the hands of the user. 64 As I have already remarked, the evidence varies about the position from which the accused fired the bolt. The witness M.G. had the accused walking forward and in a smooth action lifting the crossbow to his shoulder, taking aim and firing without a pause. Although he put himself as three metres from the accused, the witness did not recollect the accused telling T.S. to turn around. It is common ground that he did so. The witness C.C. said that the accused was holding the crossbow at the shoulder but that he had his head upright. The witness R.S., demonstrating the way the accused held the crossbow, indicated, as it is described in the transcript, with her arms held in front of her "upper tummy area". The witness R.J. said that the accused had the crossbow to chest level and did not really seem to aim for very long, then fired. The witness C.B. said that the accused took the crossbow off his shoulder, aimed and fired. The witnesses A.G. and L.S. had the crossbow at shoulder height. T.S. described the accused's head as slightly lowered. C.B. said that the accused had the crossbow up on his shoulder and indicated at about chest level, between chest and shoulder. The accused said that he had the crossbow resting on his shoulder, facing directly upwards, and brought it down to aim, first to his eye level for a few seconds, then down to his chest level. 65 I take it that the user of such a weapon would take best aim if the stock were held firmly into the shoulder and the eye directed, through a sight or not, along the deck behind the bolt. It is impossible to be satisfied on the whole of the evidence that the accused took any aim of that kind. I think that he probably fired from a lower position from which he could not take precise aim, even though he might have thought that he could. In view of what I have said about the distribution of the weight of the weapon I doubt whether any person of the accused's size could have held the crossbow steady for very long. 66 But the most telling evidence is what the accused told the police in their interview. After he was tackled he would have had no opportunity to observe T.S. The time under which he had her under observation after he shot her must have been very short. As soon as he shot her he turned round and returned to the eastern side of the building where he had left his suitcase and backpack. He busied himself with lighting the first bomb. He saw T.S. return to the eastern side of the building and sit on the bench there, being attended to by R.C. T.S. was clothed, of course, and there was no opportunity for the accused to see any wound. He saw that she was bleeding and holding herself, but he had no way of knowing by what he saw that T.S. had been struck in the chest. 67 The interview began at 12:17pm and ended at 2:17pm. I infer that T.S. must have been undergoing emergency surgery during that time. The interrogating police officers had presumably had no opportunity to obtain details about T.S.'s wound. They were still finding out facts, as is often the case when an interrogation follows soon upon an early arrest. 68 Something has gone wrong with the numbering of the questions and answers in the transcript of the interview and I shall quote portions of it with reference to page and question number. Altogether there are fifty-five pages of transcript besides two pages of diagrams. At page nine, answer 121, the accused gave a long narrative which included this passage- I had the crossbow and I, and I was aiming it at her and she, she just thought oh, she just started walking away like what a joke sort of thing and I said to her to turn around 'cause she just had her back to me and um, I shot her in the side of like stomach area. 69 At page twenty-five question and answer 184- Q. I shot her in the side in the stomach area, that's what you said to us. A. Yes. 70 At page twenty-seven question and answer 213- Q. What did you think would happen to her as a result of you shooting her with a crossbow? A. Well um, I just thought she's um, I didn't think she would die 'cause I mean, if I wanted to I could have, I didn't, I didn't, I, I shot her in the stomach on purpose, I didn't, I, I, intentionally I aimed not at her like head or anything. 71 At page forty-one question and answer 436- Q. By having the razor heads on the arrows and by aiming it at T.S., did you think by using that head it would cause, as Detective Garside said to you, maximum damage to T.S.? A. Well, that's why I only shot her in the stomach, you know, I mean, I didn't want to do major damage. I… 72 At pages forty-four and forty-five questions and answers 491-497- Q. In relation to, I've asked you before but in relation to the damage you thought it would cause, did you at any time consider that she may have died? A. Yes. Q. How did that make you feel? A. Well, I didn't want her to die so yeah, but that's why I only shot her in the stomach. Q. Did you want to cause her maximum pain without death? A. Yes. Q. You said you aimed at her stomach? A. Yes, from, from the back, yes. Q. Can you tell me if the trajectory of the bolt in the crossbow was pointing down… A. Yes, yes, yes, down. Q. So where did you suspect the arrow or the bolt, as you call it, would end up… A. At the stomach. Q. Did you consider that it would have gone straight through her? A. No, I didn't think it would be that powerful. 73 It was not until the fiftieth page of the transcript, in a part of the interview that must have taken place after 2:00pm, that information came to the police that prompted this question and answer- Q. I've got an indication here and again I can't corroborate this version but the indication was that you pointed it at her chest. A. No. Q. Is that right or wrong? A. That's wrong. 74 Finally, at page fifty-one there was the passage which I have already set out dealing with the accused's aim and the videotape. 75 As I have observed, the accused could not have known from what he had seen that he had shot T.S. in the chest. He must have realised that the precise position of the entry wound would be known, at least eventually, so he is unlikely to have asserted that he had shot T.S. in the stomach if he did not believe it. He must have believed that he had shot her in the stomach. His assertion to that effect, seen as a statement of belief, must have been true. 76 His repeated denials of any intent to kill were linked to his belief, stated as a fact, that he had shot T.S. in the stomach. He had no reason to believe that T.S. was in any danger of death. For these reasons the accused's repeated assertions that he did not intend to kill may be seen as a genuine attempt to explain his intent rather than, as is sometimes the case, an automatic denial of guilt. He had no reason to suspect that he would be charged with attempting to kill T.S. 77 This is the final circumstance which satisfies me both that the accused was by and large trying to give an honest account of himself and that he did not intend to kill T.S. If the burden of proof were on him he would have discharged it, but it is not, and I am bound to entertain a reasonable doubt that the accused intended to kill T.S. I accordingly find him not guilty of the first charge. 78 In the circumstances, it is unnecessary for me to consider the third circumstance relied on by the Crown on this first count, namely the throwing of the bottle and the place where it landed. 79 The Crown also relied in order to prove an intent to kill on certain words spoken by the accused to Senior Constable Holloway shortly before the interview began. Unprompted, the accused said this- I wonder if the bolt went right through her. I only fired one, it could have gone right through her. I only needed to fire one. 80 The Crown contended that the accused was telling the truth and only needed to fire one bolt because one would kill. I reject that interpretation. It seems to me that what the accused must have meant was that one bolt would be enough to teach T.S. the lesson he had spoken about. 81 Given that when he threw the bomb the accused was probably no more than four or five metres from T.S., the inference arising from the fact that the bottle broke almost at her feet is strong. But that is the only evidence tending to show that T.S. was the object of the throw and there is other evidence. The first is the circumstance I have just dealt with, namely the assertion by the accused, with the construction which I have put upon it, that the lesson had been given. 82 It seems clear that there was nobody between the accused and T.S. and R.C. when he threw the bomb. However, quite understandably, no witness has been able to give a complete and accurate account of everything that happened. There must have been pandemonium. People were running everywhere. The evidence shows that a lot of people ran away but that others remained. 83 In the interview between the accused and the police there were these questions and answers- Q. What was your intention when you made the petrol bomb or Molotov cocktail? A. To clear away people that were trying to help me.

Q. Who were those people? A. Spectators, anyone that would try and hurt me afterwards.

Q. Did you use your lighter and light the sparkler? A. Yes.

Q. You said you threw it. Where did you throw it? A. Near where she um, T.S. was sitting at the people that were coming towards me.

Q. What did you see? A. Nothing. What do you mean?

Q. What did you see when you threw it, did anything happen? A. No, no, no boom, no, nothing but…

Q. Did you expect it to go boom? A. Yes. Q. You said you threw it near to where T.S. was sitting. What did you expect would happen if it did go boom, as you explained? A. It would make, it would make the people stay back, not come, move away. Q. Did you have any concern for T.S. seeing that you threw it in her direction? A. Well, it wasn't at her so yeah, I didn't want it to get her. 84 The accused told the court that those answers were true. Then there was this evidence- Q. Did you intend for it to land at the point where it appears to have landed? A. No. Q. What did you intend to do with the bottle when you'd thrown it? A. To land more towards the middle of the concreted area. Q. Was there anyone in that area where you thought that you were going to throw the bottle? A. No not in that immediate area. Q. Were there people around that area? A. Yes, yes. 85 The accused confirmed as true these questions and answers- Q. What did you expect the results would have been if it had exploded seeing that it's in glass? A. I didn't, I don't, I don't think glass fragments would have gone everywhere, I think it just would have shattered and made like a fire wall to stop people coming. Q. Did you think it would explode and blow everywhere? A. No, no, no. Q. Anything you wish to ask about that? A. 'Cause it's not, it's not um, very harmful weapon oh, I mean, it would be but where I threw it no one was in, no one was touching it, no one was near it, no one was, I don't think anyone was actually in blast radius of it. 86 The accused's evidence continued- Q. Did you intend to cause that bottle to in fact inflame T.S.? A. No. Q. Did you have the perception of where other people were at that time? A. Yes. Q. Where were they? A. There were a lot of people running in all directions. There was a lot of people to the right and to the left. Q. What were they doing? A. Some were standing around, some were running towards me.

87 The accused confirmed as true these questions and answers- Q. What type of spray is it? A. Deodorant. Q. What type of deodorant? A. Ah, I dunno. Q. Why did you have that on you? A. Same reason the Molotov. Q. And what is that reason? A. To, to keep back people. Q. Is T.S. included in those people you're talking about you want to keep? A. Well, she wouldn't be able to. Q. Were you going to use it against T.S., that's what I was asking you. A. No, no. Q. So what was your intention to have that can for of spray? A. To stop people that would charge at me. Q. What were you going to do with the can of spray? A. Ah, set it on fire. Q. How? A. Ah, ah, squirt it with the lighter. Q. To use, did you want to use it as a flame thrower? A. Yes. Q. Was that a backup to the Molotov? A. Yes. Q. Do you agree you had not one but two Molotov cocktails? A. Yes. Q. Was this a third backup to those options? A. Yes. Q. And the blue clear lighter you said you had that you left on the oval, was that what you were going to use to ignite that can? A. Yes. Q. What did you expect the results would have been of that? A. Um, I, I just thought, I didn't think anyone would get hurt, I just thought it would keep them back, but I decided not to do it because I didn't want anyone else to get hurt. 88 In my opinion the deodorant can is significant. Unlike the petrol bombs, it could not have been used as a missile. It could be effective only if held in the hand with a finger on the spray button. This gives support to the accused's assertion that he had it to keep people back. That in turn supports his case that that is why he had the two petrol bombs. 89 Because of the view that I have formed of the truthfulness of the accused's evidence generally I think that these matters combine to raise a reasonable doubt that the accused threw the bomb intending to do any injury to T.S. I think it was by chance that it landed where it did. The explanation that the accused made the bombs and used the first of them in order to hold off people who might attack and hurt him is in my view reasonable and consistent with his innocence on this charge. 90 I accordingly find the accused not guilty on the third count. 91 The formal findings and orders are as follows- I find the accused not guilty of the attempted murder of T.S. and I direct the entry of a verdict of acquittal on that charge. Pursuant to his plea of guilty, I convict the accused of the malicious wounding of T.S. with intent to do her grievous bodily harm. I find the accused not guilty of maliciously throwing an explosive substance at T.S. with intent to do her grievous bodily harm and I direct the entry of a verdict of acquittal on that charge. I find the accused guilty of maliciously wounding C.B. with intent to do grievous bodily harm to a person. I convict him on that charge. Pursuant to his plea of guilty I convict the accused of using a prohibited weapon without being authorised to do so by license or permit.

Last Modified: 02/19/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

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