R v May

Supreme Court of NSW|2016-06-15|Before: Wilson J

Judgment

On 6 June 2016 the accused, Jamie May, was arraigned before me on an indictment that charged him with an offence contrary to s 18(1)(a) of the Crimes Act 1900 (NSW) that: On 11 April 2014, at Redfern in the State of New South Wales, did murder Judith Townsend.
The accused entered a plea of not guilty to that charge.
The accused had elected to be tried by a judge alone pursuant to s 132 of the Criminal Procedure Act 1986 (NSW), and the Crown agreed to that course. Being satisfied that the accused received appropriate legal advice prior to making the election, and bearing in mind the Crown's consent, I was obliged to make an order for the trial to proceed in that way: s 132(2).
The accused did not dispute much of the evidence adduced by the Crown, and a considerable portion of it was tendered to the Court in the form of written statements made by witnesses. Some witnesses were called to give oral evidence. A number of documentary exhibits were tendered, and the Court attended the scene of the alleged crime to view the area pursuant to s 53 of the Evidence Act 1995 (NSW).

Overview of the Crown Case

The deceased, Mrs Judith Townsend, was the accused's maternal aunt. She lived in a block of units in Redfern Street in Redfern.
The Crown alleges that the accused approached his aunt as she walked in the street near her home late on the evening of 11 April 2014. It is alleged that he assaulted her in front of a unit block in Morehead Street at Redfern by striking her numerous blows to the head and face with a brick, and that he did so with the intention of killing her or causing her grievous bodily harm.

The Evidence Adduced by the Crown

Much of the evidence relied upon by the Crown was tendered to the Court as Exhibit B1 - 55, together with other documentary exhibits. There was additionally oral evidence. Whilst I have considered all of the evidence, what follows is an account of the more significant parts of that evidence.

Civilians at the Scene

Ralph Townsend was the deceased's husband and he lived with her in a ground floor unit in an apartment block in Redfern Street, Redfern. His statement is in evidence as Ex B1.
In the early afternoon of 11 April 2014, at about 1pm or 1.30pm, the accused came to the Townsend flat and knocked on the door, calling out "It's Jamie." Mrs Townsend did not open the door, but called to the accused, "We're getting ready to go out. We're in a hurry and I can't let you in." The accused called back, "Alright, see you later."
Mr and Mrs Townsend left their home soon after, returning at about 6.15pm.
After the couple had watched the news and a current affairs program, they began watching a football game on television. Their neighbour from upstairs in the unit block, Margaret Williams, came to their unit whilst the football was on. Soon after, another neighbour, Kantarli O'Reilly, came to the Townsend unit and told the occupants that, "Jamie is holding the girl, Ashanti, by the hair with a knife to her throat." She left again.
Five minutes later the accused came to the Townsends' door and knocked and then kicked at the door. He called "Let us in, let us in." Mr Townsend looked through a security peephole and saw that the accused was at the door. He was naked. The door was not opened for him and he walked off.
After the football game on television had finished, Mr and Mrs Townsend left their unit to go for a walk. Ms Williams also left the unit, going upstairs to her own unit. She quickly came back down the stairs to report that her door had been kicked in. When Mr Townsend went upstairs to check the unit for his neighbour, he entered a bedroom in the unit and saw the accused, naked, lying on top of a woman on a bed, and apparently having sexual intercourse with her. He left the unit immediately and told Ms Williams what he had seen.
He and Mrs Townsend left the apartment block to go for a walk.
During the course of their walk, Mr Townsend left his wife for a short time in the company of another neighbour and went to run an errand. When he next saw his wife she was lying on the ground beneath the front windows of a block of units in Morehead Street, severely injured. Mr Townsend saw the accused in the entrance to the unit block moving a cupboard. He was still naked.
Mr Townsend called for a passer-by to call an ambulance, and police arrived soon after and tried to assist Mrs Townsend.
Margaret Williams (statement, Ex B3) was woken from sleep by a visitor to her apartment, located upstairs from the Townsend flat. She got out of bed to see the accused in her lounge room. He was dressed in white shorts and top, a hat and Nike TN shoes. He told her, "I don't feel too well Aunty." When she asked if he had taken something, the accused responded, "Yeah, some pot." Ms Williams went back to bed, leaving the accused with her son, Joshua Skartados, and her neighbour, Kantarli O'Reilly.
She got up soon after and, feeling uncomfortable because of the accused's presence, decided to go to the Townsend flat. She thought the accused was acting "oddly" ([11]). As she left she told the accused to go and lie down in her bed as it might make him feel better. She saw her son run from the unit. She left the unit. She sat downstairs with the Townsends for some time and then went to visit another friend. That friend, Kariena Brown (statement, Ex B18) recalls Ms Williams saying, "Can I come in because Jamie is over home and he is off his head on drugs" ([4]).
When Ms Williams returned to her unit later that night, it had been declared a crime scene by police.
Joshua Skartados (statement, Ex B4) recalls the accused coming to his mother's unit at around 7pm on 11 April 2014. He spoke with the accused for about an hour, during which time he thought the accused was "typical Jamie, calm" ([5]). He didn't seem to be affected by alcohol or drugs and appeared happy. At some point the accused told Mr Skartados, "I had a cone, I feel a bit funny." From that point the accused became "very weird" with a strange look in his eye ([5]).
His conduct began to worry Mr Skartados; he stood towering over him saying "Josh, Josh, Josh, Josh" ([6]). He began to walk around in circles. Mr Skartados called to his mother to come and speak to the accused before leaving the unit. He said the accused was not aggressive, just "weird."
Jazmena Williams (statement, Ex B5) was staying with Joshua Skartados. She was at his unit on 11 April 2014. She recalls the accused arriving at the unit between 7 and 8 o'clock that night, and saying, "I just had some pot and I feel funny" ([5]). There was some interaction between him and others in the unit.
After Mr Skartados had left, Jazmena Williams was in Mr Skartados' bedroom with a friend, Beatrice, when the accused walked into the bedroom. He had a knife in his hand that was from the kitchen. He held the knife out to the two women saying, "I just gotta do it, I gotta do it" ([9]). He took hold of Beatrice by the hair and held the knife to her back. The accused then dragged Beatrice into the main bedroom. He told Jazmena Williams that she would be next, but she ran from the unit as soon as he went into the main bedroom.
Jazmena Williams ran upstairs to a neighbouring unit. Some minutes later, she looked out of the window and saw the accused, naked apart from the Nike TN shoes he had been wearing, walk out of the building, along the footpath on Redfern Street, and turn into Morehead Street. She lost sight of him.
Kantarli O'Reilly (statement, Ex B6) lived in a top floor unit of the same block as the Townsends. She knew the accused.
On 11 April 2014 she visited Margaret Williams in her unit and saw the accused there. She thought he wasn't himself; he was quiet and looked "spaced out" ([7]). Without warning, the accused got up from where he had been sitting and grabbed her by the arm. He pulled Ms O'Reilly from the unit and upstairs towards her unit. When she told him they couldn't get in to her unit as her keys were downstairs he released her, and Ms O'Reilly went downstairs again. The accused came from behind and grabbed her right arm, twisting it and hurting her. She told him he was hurting her and he released her. When she commented to him that his eyes were red and he looked "stoned" the accused said, "I had a cone, I don't feel right" ([9]).
Ms O'Reilly watched as the accused walked around the unit mumbling things she could make no sense of. When she got him some grapes to eat the accused dropped the food on the floor. He stood up saying, "I just gotta do it, I just gotta do it" ([11]), and began rummaging in the kitchen drawers. Ms O'Reilly became concerned; she noticed that, "He had a really weird look on his face; it was like he was looking straight through and he was possessed" ([11]).
She went out to look for Mr Skartados, who had gone and, on her return, she saw that the accused had hold of Beatrice Haines by the hair and was threatening her with a knife. Ms O'Reilly ran out of the flat down the stairs calling out that she was going to call police. She heard the deceased call to her, "Don't go calling the police" ([12]). Instead of calling the police, she waited for a time and then went to check on Beatrice.
In the bedroom of Margaret Williams' flat she saw the accused, naked and with a partially erect penis, pushing himself up from the bed. She could not see Ms Haines because her view was substantially obstructed by the bedroom door. When the accused said, "you get in here too" ([14]) she ran out of the apartment block and stayed elsewhere that night.
Rodney Warne (statement, Ex B2) lived in the flat opposite Mr and Mrs Townsend and knew them well. He also knew the accused well as the accused was a regular visitor to the unit block.
Mr Warne fell asleep in his lounge room late on 11 April 2014, he thought at about 10pm. Some time later he was awoken by the sound of two male voices yelling. He heard footsteps going down the stairs of the unit block. He then heard a voice he recognised as the accused's demanding to be let into the Townsend flat. Mr Warne thought the accused sounded agitated. He was punching and kicking at the door of the Townsend flat. Eventually, he went outside the unit block, walking around it whilst calling, "Let me in you cunts," and similar ([7]).
Mr Warne went back to sleep but was again woken, this time by the sound of Mr Townsend saying, over and over again, "My baby is dead".
Dimitri Kouznetsov (statement, Ex D) drove to the area of Morehead Street at about 9.30 on the evening of 11 April 2014 to take his dog for a walk in a nearby park. He parked his car in Redfern Street. He saw a girl walking on Morehead Street, and then a man coming out of some unit blocks opposite to where his car was parked. The man was naked and waving his hands about and acting strangely. He did not see any injuries to the man's face or any blood on him. The man was talking to himself but he did not catch what he said.
The man walked out of the unit block at a fast pace. The girl was also moving at a fast pace. The man, who was still talking, caught up to the girl and placed an arm around her shoulders. It wasn't an aggressive gesture and he didn't seem to be restraining the girl. The girl didn't pull away or do anything to suggest to Mr Kouznetsov that he should call the police. The girl and the man kept walking, away from Mr Kouznetsov, and around the corner into Morehead Street. After a few minutes (as much as five: T22) he heard a very loud high-pitched scream.
Lydia Clarke, whose statement is Ex B10, was visiting the Redfern area that night from Taree. She was walking with her cousin, Alicia Donovan, south along the footpath in Morehead Street on her way to visit a friend. It was dark.
Ms Clarke saw an aboriginal woman of small stature emerge from a block of units in Morehead Street and walk quickly out onto the street. She saw a man walk out of the same doorway almost immediately behind the woman. The man was about 6 feet tall, bald, aged 30 to 40, and well-built with solid arms. He was naked. The woman glanced once behind her. The man was immediately behind the woman. Ms Clarke did not hear any conversation.
Ms Clarke saw the man bend down and pick something up; she thought the object was a stick, a brick, or a rock. He followed the lady. The two disappeared from Ms Clarke's view.
Annie Maguire gave evidence before the Court on 7 June 2016. She had been in a taxi in Redfern when she saw a naked man on Morehead Street sometime soon after 9.45pm on 11 April 2014. The naked man was hugging a female who was much smaller than the man with his arms wrapped around the female's head and neck area. The woman did not appear to be hugging the male back but had her hands up to her chest. The woman's back was to Ms Maguire, but she could see the man's face and head as the taxi in which she was travelling slowly drove by. She did not see any blood or sign of injury to the man's face although she had a good view of his face.
Lolli Daniels (statement, Ex B12) was walking home to Walker Street, Redfern with her partner Michael Binge at around 10pm. They walked onto Morehead Street intending to take a pathway to Walker Street. She saw a man naked but for a pair of joggers standing in the front of 36 Morehead Street with his back to the road and Ms Daniels. She heard the man say, "You're not my fucking aunty, you're not my aunty." Ms Daniels then saw that the man had hold of an aboriginal woman whom she described as tiny, thin, and in her fifties.
The man was holding the woman in the area of her throat and shoulder and was punching her in the face with his right hand. The woman was positioned with her back against the wall of the building and was moaning. Her head was going backwards against a steel grate over a window with every blow.
Ms Daniels went up to the man and hit at him with her handbag. She yelled at him to "Get off her, stop it" ([6]). The man was "zoned in" on the woman and did not desist. Ms Daniels saw him hit the woman at least six to ten times, and saw that the woman's face was covered in blood. She was close enough to the pair to see that the man had abrasions and blood on his face under one eye.
Ms Daniels saw the man strike a particularly forceful blow to the woman's face and let her go. The woman fell to the ground where she lay unmoving. The man walked into the rear yard of 36 Morehead Street and went into the unit block and up the back stairs.
After going to the nearby home of friends, Ms Daniels went to check on the lady and saw that she was terribly injured. Her partner phoned for an ambulance.
Michael Binge (statement, Ex B13) was with Ms Daniels when they saw a naked man in front of a unit block in Morehead Street. The man was with an elderly aboriginal woman who was standing beside the man. Mr Binge heard raised voices and heard the man say, "You're not my aunty, you're not my aunty" ([5]). The woman did not reply.
Mr Binge saw the man grab the woman by her arm and begin punching her in the face; he saw about eight blows before Ms Daniels ran over and began swinging her handbag at the man and screaming at him. Mr Binge pulled her away. He saw the woman fall to the ground without doing anything to break her fall. After she hit the ground she did not move.
Mr Binge went with Ms Daniels to a friend's flat nearby and returned with them to the scene, whereupon he called the Triple 0 emergency number.
Staci Harmer (statement, Ex B14) lived in a unit in Morehead Street. After going to bed on the night of 11 April 2014, she heard yelling from the street. The voices were those of a man and a woman and they were screaming at each other. She and another occupant of the flat, Thomas Kinross, got up and went to the windows looking out to Morehead Street.
Ms Harmer saw a man and a woman standing inside the fence line of one of the unit blocks yelling at a man who was naked. The man and the woman then walked away and Ms Harmer noticed that the naked man was holding a rock about the size of a grapefruit. He was down on one knee on the ground and was banging the rock (she thought) into the ground. The man then moved so that he was on both knees and continued to strike the rock into the ground, Ms Harmer thought about ten times.
Ms Harmer moved to another window to get a better view and saw that the man was bringing the rock down onto a body lying there, "aiming at the head" ([13]). She saw him hit the body another four times. She telephoned Triple 0. The man continued to strike the body with the rock.
As she was on the phone, the man got up from the ground and walked into one of the unit blocks on Morehead Street. He did not have the rock in his hand. She saw him running up the stairs of the building.
Police arrived and she later saw some officers bringing the naked man out of the building she had seen him go into. She saw that the rock was lying in the street near the body.
Two calls to the Triple 0 line were logged, the first being at 10.12pm (T139:36).
Ricky Emmerton lived in a unit block across the road from 36 and 38 Morehead Street. On the evening of 11 April 2014, he heard two male voices and a female voice in that area. A male voice made a grunting sound and there were some scuffling sounds, like a fight. He did not look out as fighting is common in the area.
Thomas Kinross (statement, Ex B15) heard yelling from a male voice and a female voice and then saw a man and woman walking along Morehead Street. He saw a naked man who was walking in the direction of the couple. The man turned around and walked in the opposite direction before getting down on his knees on the ground underneath the windows of a Morehead Street unit block. He lifted something up above his head and struck the object down to the ground about five times. After he stopped watching, Ms Harmer called out to him that there was a body, and he again looked from the window. He saw a body in the area where he had seen the naked man striking the ground.
Kim Gumley (statement, Ex B20) lived in a unit at 38 Morehead Street. Sometime on the night of 11 April 2014 she heard the sound of a cupboard that she had left in the entranceway of the unit block being moved. She went out of her unit to see what was happening and saw a naked man with blood all over his face. His face was swollen. She asked the man who he was and he said, "Jamie, Jamie." He was slurring his words as he spoke, and continued to mumble.
After she returned to her unit, Ms Gumley heard someone knocking on her door. Her partner called out to see who was at the door. A man answered "Jamie, you know me." When Ms Gumley's partner, Robert Papps, told the man to go away, the man said, "No you know me, Jamie, Jamie, I need help" ([11]). The man was asking for help, mentioned the police, and said he wanted to get inside to be protected from the police.
Mr Papps opened the door of the unit a crack to throw the man a shirt to put on and the man pushed the door open and entered the unit. Ms Gumley heard him say something but she could not understand him. She saw he had blood all over him. Frightened, she and Mr Papps ran from their unit. Police arrived soon after.
Robert Papps (statement, Ex B21) also heard a sound in the building entrance that night and went out with Ms Gumley to look. He saw a naked man wearing only shoes and socks coming up the stairs. He was mumbling. The man said his name and that they shouldn't panic as he just wanted to come and say hello. Mr Papps said that the man spoke calmly and after following them to their door, did not try to force himself into their unit.
When Mr Papps opened the door to give the man a shirt, he entered the flat. Mr Papps and Ms Gumley ran out.

Police and Ambulance Officers

Senior Constable Greg Downing (statement, Ex B30; evidence 7 June 2016) was at Redfern Police Station at about 10.15pm when he was advised of an urgent call to attend Morehead Street. He went with Constable Lockyer to 36 Morehead Street where he saw a person lying on the ground in front of the building. He was told that a naked man had assaulted a woman with a rock and the man was in the apartment block at 36 Morehead Street. He and a number of other officers went in search of the male.
On entering a unit on the top floor of the building, he called out, "Police, police, come out now" ([4]). The accused walked out of a bathroom and stood in the hall. The accused was naked but for a pair of socks. He had what looked like recent injuries to his face, and his face was swollen. There was blood on his face and smeared onto his upper torso.
Although the officer yelled to the accused to get on his knees he remained standing in the hall. The accused said something, but S/C Downing could not understand him. There was a lot of shouting from police. When the accused moved towards the police officers, S/C Downing sprayed a burst of oleoresin capsicum spray ("OC spray") towards his face. It appeared to have no effect, so the officer directed a second burst of OC spray to the accused's face, as did another officer, S/C Lay. After a few seconds the accused knelt down and was handcuffed.
The officers began to remove the accused from the unit, and he became combative. He was demanding water. He was forcibly removed from the building and dropped to the ground. He was arrested and cautioned.
S/C Downing later went into unit 3 of 6 Redfern Street and observed a quantity of blood in a bedroom there, together with signs of disarray in that room.
Constable Zan Lockyer (statement, Ex B31; evidence 7 June 2016) was with S/C Downing when the accused emerged from the bathroom. He noticed that the accused's face was injured and swollen to the point where his eyes were almost swollen shut. He was covered in blood. He said something but it was unintelligible to Con. Lockyer. When he moved towards the police officers OC spray was deployed, with no effect until a second burst was directed to his face.
Con. Locker was able to handcuff the accused with his hands to the rear. The accused said, "I need a drink of water" ([10]). There were four officers present and it took all of them to remove the accused from the building and get him outside.
Con. Lockyer then gave his attention to Mrs Townsend, who he saw had massive facial injuries. He and another officer, Con. Matthews, tried to administer CPR to her but found it impossible to do more than compressions because of the catastrophic facial injuries. Later, when ambulance personnel had taken over the care of Mrs Townsend, Con. Lockyer noticed a bloody rock or half brick, about a metre and a half from Mrs Townsend.
Senior Constable Cory Lay was on patrol in Redfern with Constable Rullis when he heard a message broadcast at about 10.10pm on 11 April 2014 and went immediately to Morehead Street. He went with other officers into a Morehead Street unit block where he saw the accused in a unit. He was naked, and had severe bruising and swelling to his eyes.
The accused was directed to get down but stood looking at the police officers. He was steady on his feet. He then moved forward in small shuffling steps. When the accused did not do as directed after sprayed with OC spray by S/C Downing, S/C Lay also directed a burst of spray to the accused's face, which was almost simultaneous with the second burst directed at him by S/C Downing. The accused was arrested and taken outside.
Constable Paul Rullis (statement, Ex B33; evidence 7 June 2016) was with S/C Lay. He also observed that the accused had facial injuries. After the accused was arrested and taken outside he was placed onto the ground. Con. Rullis placed him into the first aid recovery position. The accused said, "Let me sit up. I want water" ([17]). The officer had a conversation with the accused, the details of which do not form part of the evidence, and thought that the accused was clear and coherent in that conversation.
Daniel Elson (statement, Ex B34; evidence 7 June 2016) attended the scene that night as a paramedic. He checked Mrs Townsend and concluded that she was not breathing. He noticed a male in police custody who was screaming for moments. He did not take much further notice of the male because he was trying to assist Mrs Townsend.
Patrick O'Malley (statement, Ex B35; evidence 7 June 2016) was another of the paramedics to attend the scene. His focus was also on Mrs Townsend, and he made few observations of the accused other than that he was "shouting and carrying on" as the police restrained him, as somebody might do when upset.
Ioannis Georgiadis (statement, Ex B36) was part of a second ambulance crew to attend the scene. With paramedics already doing what they could for Mrs Townsend, Mr Georgiadis was directed to the accused. The accused had blood around his nose and mouth so the officer used water and shampoo to wash the blood from his face. The accused allowed this, although he was verbally aggressive, telling the officer to "fucking hurry up" ([10]). When Mr Georgiadis told the accused that he wanted to check his mouth for bleeding, the accused refused, telling him not to touch him. He would not allow observations such as blood pressure and pulse rate to be taken, saying, "I don't want you to do any of that, just leave me alone" ([11]).
After the accused was arrested he was taken to hospital. A blood sample was obtained from him by a doctor, and a buccal swab by a police officer.
He was kept in hospital under guard for a short time. The following morning, at about 7.15 on 12 April 2014, one of the officers performing guard duty heard the accused say, "Can I ask you officers a question? Which one of those silly cunts left me alive? They should have killed me. Someone chucked that G in my drink yesterday. I've never touched it in my life. I don't know what I've done. Someone's busted me up pretty bad. Don't worry I'll be back. I don't know what I've done" (Ex B42, [9]). The comments were not a sequential narrative, and they were without apparent logic (T52).
There is a considerable amount of evidence from investigating and crime scene police, but I do not propose to summarise it here. It is sufficient to note that there was evidence adduced which established, to a degree, the accused's movements on 11 April 2014, including closed circuit surveillance footage from the Redfern area which showed the movements of some of the individuals involved in these events.
After the accused was arrested, he exercised his right to silence.

Expert Evidence

In evidence as Ex B54 is a report from forensic pathologist Dr Johan Duflou as to the cause of Mrs Townsend's death, and the nature of her injuries.
Dr Duflou conducted an autopsy on Mrs Townsend's body on 14 April 2014. He observed extensive blunt force trauma to the face and head, and many fractures to the skull, facial bones, and ribs. The injuries were consistent with infliction through multiple blows with an object such as a small house brick, and were the cause of death.
The accused was examined in hospital at about 2am on 12 April 2014 by Dr Claire Nicholls (Ex B53). There was significant swelling around both eyes. A CT scan was conducted which showed multiple and complex facial fractures. A blood sample was obtained at some time after 2.55am on 12 April 2014.
The sample of the accused's blood was later examined (Ex B51 and 52) and found to contain cannabinoids and amphetamines. Delta-9-THC acid in a quantity of 0.015 milligrams per litre was present, as was amphetamine (0.02 mg/L) and methylamphetamine (0.11 mg/L). The drug gamma-hydroxybutyrate, commonly known as GHB, was not detected.
John Farrar is a consultant forensic pharmacologist who was asked to review relevant material and give an opinion as to the level of intoxicating drugs affecting the accused on the night of 11 April 2014, and how any such drugs may have impacted upon him.
Mr Farrar concluded that the accused's expected blood methylamphetamine concentration at 10.10pm would have been within the range of 0.13 milligrams per litre and 0.19 milligrams per litre. He would have been significantly or even substantially impaired with such a blood level, and his capacity to form an intention would have been, in Mr Farrar's opinion, compromised.
Mr Farrar did not see cannabis intoxication as having any role to play in the accused's presentation.
Expert opinion evidence was called by the Crown from Dr Margaret Stark, a physician with expertise in the area of chemical forensic medicine (Ex B48; evidence 8 June 2016). Dr Stark was formerly the Director of the NSW Police Clinical Forensic Medicine Unit and Adjunct Professor at the Medical School at the University of Sydney.
Having reviewed the clinical evidence relating to the accused, Dr Stark concluded that, on admission to hospital, he had a mild closed head injury following acute blunt force trauma, with serious multiple facial fractures. Symptoms of concussion can be seen after a mild closed head injury. Those symptoms include post-traumatic amnesia, confusion and disorientation. Dr Stark could not give any opinion as to whether the accused was affected by concussion prior to his arrest.
She opined that his behaviour as reported by witnesses may have been the result of an acute behavioural disturbance due to methylamphetamine intoxication. Acute methylamphetamine intoxication can cause anxiety, aggression with violent tendencies, memory loss, paranoia, hallucinations, delusions such as a belief that spiders are crawling on the body, or homicidal or suicidal thoughts. Sometimes people so affected will be underclothed because of hyperthermia, and behaviour may be bizarre. An affected individual can be affected psychologically and can behave in a violent way, but not be psychotic.
"Excited delirium" can result from methylamphetamine intoxication. The following evidence was given, at T105: "Q. In terms of the word "delirium", is this a consensus that you make of an ability of the mind to reason and to be rational? A. Yes. If somebody is seriously unwell, then, yes, that is the whole difference really. I am saying if someone - an analogy, if somebody is mildly intoxicated with alcohol, it may be possible to say to them, calm down, go home, leave the area. But once people are intoxicated with drugs or alcohol to that extent that they are not really taking in what you are saying, you cannot reason with them and you have a real problem. That if they continue to behave in an aggressive manner, for example, people become exhausted, for example and you have somehow to stop the behaviour in order to care for them. So that is why it is such a difficult situation."
The Delta-9-THC in the accused's blood sample indicated in Dr Stark's view that he had taken cannabis in the recent past, and the active metabolite of cannabis could have been present at around 10.10pm on 11 April 2014.
Various samples obtained during the course of the police investigation were later subjected to forensic examination by a forensic biologist (Ex B55). Of most relevance to note is the following: 1. A swab of a blood stain on the accused's chest revealed DNA consistent with that of the accused (the major component) and that of the deceased (the minor component). 2. A swab of a blood stain on the accused's right ankle revealed a mix of DNA with one contributor consistent with the deceased (the major component). The accused could not be excluded as a contributor to the mix. 3. A swab of a blood stain from the brick found near Mrs Townsend's body revealed DNA consistent with that of the deceased. 4. A swab of a blood stain from the main bedroom of Margaret Williams' flat revealed DNA consistent with that of the accused.

The Accused's Case

The accused called evidence from Professor MacDonald Christie (Exs 1 & 3; evidence of 10 June 2016).
Professor Christie is Professor of Pharmacology and Associate Dean of Research of the Medical School at the University of Sydney. Like Dr Stark and Mr Farrar, Professor Christie reviewed material relating to the alleged offence and provided an opinion as to the likely drug consumption by the accused prior to the relevant events, and the accused's state of intoxication.
Professor Christie estimated that the accused's blood methylamphetamine level at the time of the alleged offence was in the range 0.15 - 0.17 mg/L. He said that it was not possible to determine a blood concentration of the active drug THC at that time on the basis of the blood concentration in the accused's blood sample of the inactive metabolite THC-acid, or to determine any level of impairment.
He opined that it was likely, on the basis of the history he had been given from the accused and other relevant information, including the blood analysis, that the accused was very significantly intoxicated at the time of the alleged offence. Typical signs of intoxication include agitation, aggression, erratic or violent behaviour, and decreased fatigue. A psychotic reaction could be caused by intoxication. Although it was beyond his stated expertise to give any definitive conclusion, Professor Christie thought the accused's reported behaviour could have been attributable to a methylamphetamine induced psychosis.
He concluded: "This blood level is associated with increased likelihood of aggressive and violent behaviour, and disinhibition. This does not of itself suggest that he did not form specific intent but may have impaired his reasoning. [..] It is possible that your client suffered a methylamphetamine psychosis during 11 April that may have been present at the time of the offence. If so, it is possible his capacity to form specific [intent] was greatly impaired." (Ex 3 at [4.3])

The Legal Principles

At the commencement of the trial the accused entered a plea of not guilty and I bear in mind the important presumption that he is innocent until proven guilty.
The burden of proof in the trial falls on the Crown and does not shift to the accused.
He enjoys a right to silence and was not obliged to speak to the police, or to give evidence in this trial. No adverse inference may be drawn from the fact that he did neither of those things. It is the task of the Crown to prove the guilt of the accused beyond reasonable doubt.
To do so, the Crown must prove each of the elements of the offence of murder, relevantly, that on 11 April 2014 at Redfern: 1. The accused did a deliberate and unlawful act that caused the death of Judith Townsend; and 2. At the time he did that act he intended to kill her or cause her grievous bodily harm; or he was recklessly indifferent to human life.
As Mr Todd submits, the focus of the trial has been on the question of whether the Crown has proven that the accused formed the intention to kill or very seriously injure Mrs Townsend, and I do not regard it as necessary to further consider reckless indifference to human life.
A person's intention can be inferred or concluded from the circumstances in which the death occurred and from the conduct of the accused person before, at the time of, or after the commission of the specific act which caused the death of the deceased.
In considering whether the Crown has proved that the accused had the intention to kill Mrs Townsend or to cause her grievous bodily harm, it is necessary to consider the effect upon the accused of drugs which the evidence suggests he had consumed, that evidence being derived from analysis of the blood sample taken from the accused at about 2:55am on 12 April 2014 or after, and the observations of him of witnesses.
Intoxication by drugs is a relevant matter to be taken into account in determining whether the accused formed the intent to kill or cause grievous bodily harm (s 428C(1) Crimes Act). It is for the Crown to prove beyond reasonable doubt that the accused had the intention to which I have referred, despite consuming drugs prior to the events the subject of the allegation. It is not for the accused to prove that he did not have the relevant intent.
The issue of intoxication is not relevant to the voluntariness of the accused's alleged act: s 428G(1) Crimes Act.
Particularly directed to the issue of intoxication and intention the Court has heard from a number of expert witnesses. There is also expert evidence that goes to other issues, such as the presence and likely identity of DNA.
Where the expert evidence was not disputed, such as the evidence of Ms Friedmann as to DNA analysis, there would have to be a very good reason for the Court to reject that evidence.
There is some relatively minor disagreement between the evidence of Dr Stark, Mr Farrar and Professor Christie, but that is largely confined to the role, if any, of cannabis intoxication and the possible interaction between cannabis and methylamphetamine.
The value of any expert opinion is very much dependent on the reliability and accuracy of the material which the expert used to reach his or her opinion, and upon the skill and experience brought to bear in formulating the opinion given. It will be useful to assess the expert evidence in the context of the whole of the evidence. In considering the evidence of experts, it is not a case of simply choosing between their evidence as a matter of preference.
It may be necessary to draw inferences when considering the evidence. If so, it is necessary to do so with great care, and only after concluding that the inference drawn is a rational and justifiable inference.

The Circumstances of, and Surrounding, the Death of Mrs Townsend

Much of the evidence of the circumstances surrounding the death of Mrs Townsend has not been the subject of challenge and, having considered the whole of the evidence, I am satisfied beyond reasonable doubt that the accused did a deliberate act for which there was no lawful excuse, and that act caused the death of Mrs Townsend.
The accused's movements on the afternoon of 11 April 2014 are, to some degree, established by Ex R. He was in the general area of Redfern and Surry Hills, and was recorded as being on Cleveland Street at around 1pm, in the area of the Tudor Hall Hotel between about 1pm and 2pm, and at the Surry Hills Mall and surrounds thereafter. He was in the same general area later in the afternoon when he was recorded at the Mall and the TAB counter of the Tudor Hall Hotel, and at the Grosvenor Hotel in Phillip Street Waterloo at 6.12pm, and again at 6.48pm. There is nothing in the accused's movements as recorded in Ex R to suggest that he was impaired during the afternoon and early evening.
Thereafter, the accused was in the area of Redfern and Morehead Streets in Redfern.
Professor Christie recounts a history supplied to him derived from the accused that refers to the accused obtaining and using illicit drugs during the afternoon, but there is no independent evidence of that, other than what can be inferred from the toxicology evidence.
There is evidence from witnesses who encountered the accused during the course of the evening, and observed his behaviour, that would support a conclusion that he did consume methylamphetamine during the afternoon, and also cannabis.
At about 1 or 1.30pm, the accused was at the deceased's home and, although he did not enter the unit, Ralph Townsend's evidence is such that there is no real reason to conclude that the accused was adversely affected by drug use at that time. He wanted to enter his aunt's unit but was accepting of her refusal to give him entry, as she was going out.
By later in the evening, the accused was reporting to Margaret Williams that he did not feel well, having taken some "pot," a reference to cannabis. Ms Williams was sufficiently discomfited by the accused's odd behaviour as to decide to leave her unit and go downstairs to her neighbours, the Townsends.
Although Mr Townsend stated that Ms Williams made a reference to "Brothers for Life" being at her unit, I cannot conclude anything from that in the absence of any evidence on the point from Ms Williams, or any other occupant of her flat.
It may be, as Mr Todd submits, that members of this organisation had some role to play in inflicting the severe facial injuries sustained by the accused, but the evidence of that is absent. It can be no more than a hearsay account from Mr Townsend of doubtful reliability.
The other occupants of the Williams unit also reported odd, even bizarre behaviour from the accused. Although Joshua Skartados thought that the accused was his usual calm self when he arrived at the unit, probably around 8pm by reference to Ex R, and unaffected by alcohol or drugs, he soon began to behave in a manner Mr Skartados described as weird. The accused complained of feeling funny after having had a cone, again a reference to cannabis, and was walking in circles.
Jazmena Williams heard the accused make the same complaint. At some time after both Margaret Williams and her son had left the unit, the witness saw the accused with a knife saying, "I just gotta do it". What it is he was referring to, is not established by the evidence.
At that stage the accused's behaviour had become markedly aggressive. He took Beatrice Haines by the hair and forced her at knifepoint into a bedroom. Although Ms Haines refused to make a statement to police, and it is not possible on the evidence to know what happened to her, she was clearly assaulted by the accused, even if that assault was confined to that which was observed by Jazmena Williams. I have had regard to the evidence of that assault only insofar as it is relevant to consideration of the accused's state of mind, and not as relevant to his character.
The evidence of Kantarli O'Reilly confirms that of Jazmena Williams, both as to the accused's aggressive behaviour and his apparently drug affected state.
It is apparent from the evidence of each of those witnesses that, at the point at which each lost sight of the accused, he was not injured, and he was dressed in a shirt and shorts.
By the time Ralph Townsend heard the accused kicking his front door, and looked through the security peephole to see him (probably between 9 and 9.30pm), the accused was naked. He does not appear to have been injured by that stage.
The descent into aggression by the accused seems to have been relatively rapid, from sometime after his arrival at the top floor unit of 6 Redfern Street around 8pm, and by the time the Townsends left the block, at 21.39 that evening, and to have occurred independent of the injuries that were inflicted upon him.
This could be consistent with methylamphetamine intoxication, or even drug induced psychosis, as could the other behaviour witnesses have described as odd, possessed, or weird.
Although the evidence does not allow me to conclude when or how or by whom, it is likely that the accused was violently assaulted in the Williams unit at 6 Redfern Street between the time his aunt left the unit block with her husband to go for a walk, and the time he left it himself, probably at 10.06pm. Ex R records a man, almost certainly the accused, leaving the unit block at that time, and walking out into the street.
The accused was under the observation of witnesses from that time until he was observed at close quarters by Lolli Daniels, and noted by her to be injured, and he was not the victim of an assault after 10.06pm. Necessarily, he must have been injured before leaving 6 Redfern Street at 10.06. The blood in the bedroom of the Williams unit, and its state of disarray, suggests that the accused was assaulted in that location. He was certainly injured; he may have been concussed, although the latter is no more than speculative on the evidence.
Dimitri Kouznetsov saw the accused as he emerged from the unit block at 10.06pm. His attention was drawn to him by his nakedness. He did not observe the accused to be injured, but that must have been as a consequence of lighting, or the view he had.
Mr. Kouznetsov saw someone he described as a girl walking in Morehead Street. This must have been Mrs Townsend. It may be, having regard to the evidence of Lydia Clarke, that Mrs Townsend had entered her unit block to return to her flat, but left it again, perhaps on seeing the accused come down the stairs.
On Ms Clarke's evidence, a woman who must have been Mrs Townsend emerged from the entrance to the unit block, with the accused following almost immediately behind her. Although Ms Clarke saw the deceased glance behind her, by which she must have seen the accused, she did not stop.
The accused followed her. In a movement I regard as of significance, Ms Clarke saw the accused bend down to the ground and pick something up in his right hand. She thought it was a stick, rock or brick, and observed that there was a tap with crumbling brickwork nearby.
I accept her evidence on this point and conclude that, having seen his aunt and moved to walk quickly after her, the accused purposively took up an object from the ground, which I am satisfied beyond reasonable doubt was the brick later found near the body of Mrs Townsend, stained with her blood.
I accept also that Mrs Townsend looked behind her, and would thereby have seen the accused. Certainly, on the evidence of Mr Kouznetsov, she expressed no surprise when he approached her from behind, despite the accused's nakedness, and having caught up to her and draped an arm around her shoulders. Nor did she appear to struggle against him when, on the evidence of Annie Maguire, he put his arms around her body.
It must have been seconds or minutes after Mr Kouznetsov saw the pair walk around the corner, that Lolli Daniels came upon the accused in the front of 36 Morehead Street, and heard him say, "You're not my fucking aunty, you're not my aunty." Rather than the hug Ms Maguire had seen the accused holding his aunt in, the accused had by this stage taken hold of her by her throat and shoulder and he began to strike her in the face. The blows had sufficient force to push Mrs Townsend's head back into a window of the ground floor of the building with each blow, and to cause her to moan.
Having regard to the evidence of Ms Daniels, that the woman's face was covered in blood after six to ten blows had been landed as she was held upright, and to that of Michael Binge, who saw the woman drop to the ground when released without moving to break her fall, I conclude that the accused used the brick with which he had earlier armed himself when he hit Mrs Townsend.
The accused's focus on what he was doing was referred to by Ms Daniels as being "zoned in." Her acts in swinging her handbag and shouting at him did not cause him to desist. She and Mr Binge moved off.
It appears that the accused moved away from the prone body of Mrs Townsend for a few moments, perhaps to walk after Ms Daniels and Mr Binge briefly. On the evidence of Ms Harmer and Mr Kinross, he returned to where Mrs Townsend lay and, getting down on first one knee and then both, he began to strike down at Mrs Townsend with the brick still in his hands. Multiple blows were landed upon her face and head. Ms Harmer saw the accused bringing the brick down on the body, "aiming at the head" ([13]).
There can be no doubt on all of the relevant evidence that the accused was the person who attacked Mrs Townsend, and that he did so using a brick to strike her to the head and face multiple times. The injuries he caused were catastrophic, and were the direct cause of death.
Having regard to the evidence of Ms Daniels, Ms Harmer and Mr Kinross in particular, there can be no doubt that his act in so doing was deliberate and unlawful.

The Question of Proof Beyond Reasonable Doubt of Mens Rea

The Crown must additionally prove that, when the accused did the deliberate and unlawful act that caused death, he intended to either kill Mrs Townsend or to inflict grievous bodily harm upon her.
To assess whether the existence of such intent has been proved, it is necessary to consider the expert evidence relevant to intoxication, and the evidence of those who saw the accused at about the time the act was done.
There is evidence that suggests that the accused had intended to have a big night out on 10 April 2014, and he may have sought out and used illicit drugs in that context (Ex M). There is also evidence upon which to conclude that drug use would have had an acute impact upon him. The accused had not consumed methylamphetamine or cannabis in the previous three months and would not have had the tolerance to be expected of a recent regular user of those drugs. The intoxicating effects of the drugs would likely have been more significant upon him than upon an individual who was using them regularly.
The evidence of analysis of the blood sample taken from the accused at around 3am on 12 April 2014 establishes that he had used methylamphetamine and cannabis in the recent past, because of the presence of prohibited drugs, and / or their metabolites, in the sample.
Both Mr Farrar and Professor Christie have considered that evidence to undertake a "back calculation" of the likely level of methylamphetamine in the accused's blood at about the time Mrs Townsend was assaulted, around 10.10pm on 11 April 2014. The range calculated by each is broadly consistent, and establishes that the accused had a very high blood methylamphetamine level at the material time within the ranges of 0.13 milligrams per litre and 0.19 milligrams per litre (Mr Farrar) and 0.15 milligrams per litre and 0.17 milligrams per litre (Professor Christie). A level within that range would have had a significant impact on the accused, leaving him functionally impaired.
The presence of a cannabis metabolite in the accused's blood sample indicates, in the unanimous evidence of Dr Stark, Mr Farrar and Professor Christie, that the accused had used cannabis in the recent past. This is consistent with the accounts of witnesses who heard the accused say he had consumed "pot" or "a cone" when he spoke to them after about 8pm on the night of 11 April 2014.
I am satisfied that he had used both methylamphetamine and cannabis at some stage on 11 April 2014, prior to attending the Williams unit, the former probably in a significant quantity.
There is a dispute in the expert evidence as to the role of cannabis intoxication but I do not think it is of any particular significance. Having regard to the expert evidence, and to the evidence of witnesses who described the accused's strange behaviour, I have concluded that the accused was in fact significantly intoxicated, either by methylamphetamine use, or a combination of methylamphetamine and cannabis.
I cannot conclude, even on the balance of probabilities, that the accused had consumed GHB, intentionally or by unwittingly drinking something that contained the drug. The only evidence about GHB comes from what the accused was heard to say when under guard in hospital on 12 April 2014. His comments there are rambling in nature, and not of a character as to be reliable. I note also that he had been administered pain relief in hospital.
Even accepting that the accused had himself concluded that he had been given GHB by some person on 11 April 2014, the basis of that conclusion is nothing more than speculation.
Accepting that the accused was intoxicated to a very significant degree at 10.10pm on 11 April 2014, the question to be resolved is whether the Crown has proved beyond reasonable doubt that he had an intention to kill or cause grievous bodily harm when he attacked Mrs Townsend.
The utility of the expert evidence when determining that issue is limited.
Firstly, there is no objective and reliable evidence of the history of the accused's drug use at the relevant time, and so the evidence of the blood analysis falls to be considered in a vacuum. Whilst Professor Christie had the additional information, not initially available to Dr Stark or Mr Farrar, of an account of his drug use given by the accused to his legal representatives, I cannot conclude that a hearsay account can be accepted as reliable. The account was not subject to any form of testing to ascertain its reliability; it is the account of an individual whose memory of relevant events appears to be impaired; and it is the account of an individual who was drug affected for at least part of the time over which the drugs were taken. Where Professor Christie's opinion relies upon an acceptance of the history related to him, I have set it aside.
Secondly, as all the experts agreed, the impact of methylamphetamine and / or cannabis intoxication on an individual is highly variable. Dr Stark deposed that: "[..] the effect that drugs have on an individual can be very variable depending on lots of things. So not just the drug level but their mood and other conditions that they may have at a particular time. So it is not always possible to be completely precise about the effects of the level of a drug on an individual." (T99:9 -13)
For that reason, general accounts of methylamphetamine or cannabis intoxication and its manifestation are not conclusive of the specific effect on the accused of the drugs he had taken.
Finally, it was not within the expertise of any of the experts called in evidence to tell me whether the accused could have formed the necessary intent having regard to the evidence of drug use. Whilst both Mr Farrar and Professor Christie expressed opinions as to the accused's capacity to form an intention, and whether he may have been affected by a drug induced psychosis, neither had the expertise to provide such opinions, and I have set their evidence aside in that regard.
I accept that the accused exhibited behaviour consistent with significant methylamphetamine intoxication, and potentially consistent with a drug induced psychosis, but the evidence as to the latter is suggestive only, and I cannot find, even on the balance of probabilities, that he was in fact psychotic. I am conscious of Dr Stark's evidence that an individual can have an acute behavioural disturbance from methylamphetamine intoxication without at the same time being psychotic (T101:26).
I accept, having regard to the evidence of blood analysis and to that of Dr Stark, Mr Farrar and Professor Christie, that the accused had consumed methylamphetamine and cannabis at some stage before attending 6 Redfern Street on the night of 11 April 2014, and that he was significantly impaired by his use of those drugs. It is most likely that the odd behaviour that he began to demonstrate soon after arriving in the Williams unit, and the aggression seen by Jazmena Williams and Ms O'Reilly are attributable, at least in part, to methylamphetamine intoxication.
With the expert evidence informing the accounts of those who saw the accused around the time of the assault upon Mrs Townsend, I have preferred to rely upon those witness accounts in determining whether the Crown has proved the mental element to the requisite standard.
On that evidence, I have concluded that, although some aspects of the accused's conduct that night, such as his lack of coordination when eating grapes, are indicative of intoxication, and intoxication likely had a disinhibiting effect upon the accused, his actions towards his aunt were purposeful as well as deliberate.
When the accused left the unit block at 6 Redfern Street, he saw his aunt and followed her, walking at a fast pace to catch her. Lydia Clarke saw him bend down and pick up an object, which I have concluded was the brick piece he later used to strike Mrs Townsend. The act of bending to pick up an object capable of use as a weapon is a purposive act that bespeaks a plan of action. There were certain to be other objects lying on the ground that night: leaves from the plane trees that lined the street, discarded cigarette butts or other detritus, a feather, a pebble. The accused stooped down and picked up a grapefruit sized brick. That suggests purpose and reasoned choice.
Although the cause of it is not established on the evidence, the accused had by that stage become angry with his aunt, with that anger expressed in the words Lolli Daniels heard, "You're not my fucking aunty, you're not my aunty." Whilst I accept Mr Todd's submission that there is no evidence to suggest antipathy from the accused to his aunt earlier in the evening, and there is no evidence capable of establishing a motive for the accused to wish his aunt harm, it is not necessary for the Crown to prove earlier hostility, or motive.
He had become hostile to her, for a reason I cannot determine, by a little after 10pm.
The accused's act in striking Mrs Townsend to the face multiple times with the brick was also purposeful. His focus on that act was such that he was not moved to desist by Ms Daniels shouting and swinging her handbag at him. Such focus also bespeaks purpose and intent.
That is further supported by the evidence of Stacey Harmer, who saw the accused kneeling over and striking multiple blows into what she thought was the ground, in fact Mrs Townsend's face, and who saw the accused "aiming" at Mrs Townsend's head. Mr Kinross similarly saw the accused raise something over his head and strike down.
These were forceful blows, struck not in a random or directionless way, but to the most vulnerable part of the body, with aim, and using a half brick which the accused had specifically bent to pick up.
When he no longer needed the brick to affect his purpose, the accused abandoned it. This too suggests that the accused had selected the brick piece for a specific purpose, and discarded it when that purpose was affected.
After walking away from Mrs Townsend, the accused went into 38 Morehead Street. Kim Gumley and Robert Papps saw him there. Although aspects of the accused's behaviour again confirm his intoxication, such as the slurred way Ms Gumley heard him speak, other behaviour was consistent with reason and purpose. The accused identified himself to Mr Papps, said that he and Ms Gumley shouldn't panic, and mentioned wanting to get inside Ms Gumley's unit to be protected from the police. For an individual who had just committed a serious assault to seek shelter from police is not an unreasonable or irrational response.
Similarly, the accused's refusal to comply with the demands of arresting police that he get to his knees suggests a wish not to be arrested. His resistance to the effects of OC spray is consistent with methylamphetamine intoxication but does not detract from my conclusion that the accused was capable of and did act in a purposeful way. Although his speech was difficult to understand at times, he could make rational requests, such as his request of Con. Lockyer for a drink of water, or of Con. Rullis to be allowed to sit up and be given water. Con. Rullis thought the accused's speech at that point was clear and coherent.
Whilst the accused was aggressive in speech to ambulance officer Georgiadis, he displayed a capacity to make choices. He allowed his facial injuries to be cleaned, but refused to allow general observations to be made: "I don't want you to do any of that, just leave me alone."
The close temporal proximity of these events to the assault upon Mrs Townsend makes the accused's behaviour immediately following the assault relevant to proof of whether he formed the intention to kill or inflict grievous bodily harm.
Although I do not doubt that the accused would not have acted as he did but for his state of intoxication, I am satisfied that his intoxication was not such as to preclude him from forming an intention to kill his aunt or to do her grievous bodily harm. I am satisfied on the evidence beyond reasonable doubt that the accused had formed a specific intent to, at least, inflict grievous bodily harm, or kill his aunt.

Verdict

On the charge that, on 11 April 2014 at Redfern in the State of New South Wales, Jamie May murdered Judith Townsend, I find him guilty.

Amendments 21 June 2016 - Minor amendments to 'representation' on the coversheet 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. Decision last updated: 21 June 2016

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