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[2011] ACTSC 51
Supreme Court of the ACT
2011-03-25
Gray J, Mr P
Original judgment source is linked above.
1. In respect of count 1 of the indictment charging that on 10 September 2008 at Canberra in the Australian Capital Territory Scott Alexander McDougall murdered Struan Bolas, the Court finds the accused guilty.
2. In respect of count 2 of the indictment charging that on 10 September 2008 at Canberra aforesaid Scott Alexander McDougall murdered Julie Veronica Franco also known as Julie Sarah Tattersall, the Court finds the accused guilty.
1. Scott Alexander McDougall (the accused) has pleaded not guilty to charges that on 10 September 2008, he murdered Struan Bolas and Julie Veronica Franco also known as Julie Sarah Tattersall, who was generally referred to throughout the trial as Julie Tattersall. He has pleaded guilty to intentionally causing damage by fire to premises in Downer on the same date. The bodies of Ms Tattersall and Mr Bolas were found at those premises.
2. Mr C Todd appeared as counsel for the prosecution and Mr P Hastings QC with Mr K Archer for the accused.
3. The accused has elected to be tried by judge alone. Section 68C of the Supreme Court Act 1933 (ACT), sets out the provisions that are to apply in respect of a trial by judge alone. Sitting as a judge alone, I may make any finding that could have been made by a jury as to the guilt of an accused person and any such finding has the same effect as the verdict of a jury. I am required to include in my judgment the principles of law that I apply and the findings of fact upon which I rely. Where a warning would have been required to be given to a jury were the proceedings before that body, I am to take the warning into account when considering my verdict.
4. I give myself the general directions upon which a jury would ordinarily be directed before retiring to consider their verdict. The accused is entitled to have a fair trial according to law. As the tribunal of fact, as well as the tribunal of law, it is my function to find the facts and to draw inferences from them as well as to apply the law to those proven facts. I must deliver my verdict according to the evidence. The burden of proving the charge lies wholly on the prosecution and no burden at all lies upon the accused. If the accused makes or points to an explanation which is consistent with innocence, the accused does not have to prove it. It is for the prosecution to disprove it or to show that it is irrelevant; otherwise the prosecution will not have proved its case. The accused is presumed to be innocent until at the conclusion of the hearing the evidence establishes guilt. Both the onus and the standard of proof lie upon the prosecution and the prosecution must prove each and every element of the offences charged beyond reasonable doubt. Where, in this judgment, I make a finding of a particular fact, or speak of being satisfied of any matter, I reach that finding having been satisfied beyond reasonable doubt.
5. It is for the prosecution to prove each and every element of the charge beyond reasonable doubt before a verdict of guilty can be returned. If I am satisfied that there may be an explanation consistent with the innocence of the accused in respect of any charge, or I am unsure where the truth lies, then in those circumstances, I must find the charge has not been proved to the level of satisfaction required by the law and must acquit the accused in respect of that charge.
6. At about 10.37 pm on Wednesday, 10 September 2008, ACT Emergency Service fire fighters attended the premises at 4 Raine Place, Downer as a result of a 000 call. The premises were on fire and there was extensive smoke and damage. The body of Struan Bolas was found lying on the floor a short distance from the front door of the premises. Mr Bolas had significant injuries to his head and body. A short time later, the body of Julie Tattersall was found nearer the kitchen area of the house. Ms Tattersall had significant head injuries as well as burn injuries to her face, torso and hands. Both were deceased.
7. At the outset of the trial the accused, pursuant to s 184 of the Evidence Act 1995 (Cth), on the advice of his legal counsel, admitted:
a. 'South Pole' jacket,
b. Black ribbed 'BB Traders' jumper.
a. Silver and gold 'Tissot' watch,
b. Black denim shorts.
8. As at 10 September 2008, s 12(1) of the Crimes Act 1900 (ACT) (Crimes Act) provided:
(1) A person commits murder if he or she causes the death of another person -
(a) intending to cause the death of any person; or
(b) with reckless indifference to the probability of causing the death of any person.
9. As Weinberg J observed in R v Collins [2004] ACTSC 48 (18 June 2004) (at [8]), this formulation of murder constitutes it as "a significantly narrower offence than in the other Australian States and in the Northern Territory". Section 12(1) of the Crimes Act has been amended but with effect from 23 September 2009.
10. To make out the charge of murder, having regard to the general circumstances alleged in this case, the prosecution must establish beyond reasonable doubt, each of the following:
(1) that it was the act of the accused which caused death; and
(b) with reckless indifference to the probability of causing the death of the person; and
(3) the act causing the death was not carried out in self-defence.
11. At common law, as it applies to the offence constituted by s 12(1) of the Crimes Act, an act is not carried out in self-defence when the prosecution has established beyond reasonable doubt either:
(a) that the accused did not believe that it was necessary in self-defence to strike the particular deceased with the meat cleaver in the way that he did with the intention of causing death or with reckless indifference to the probability of that consequence; or
(b) that there were no reasonable grounds for forming any such belief.
12. Sections 13 and 14 of the Crimes Act deal with provocation and diminished responsibility in relation to murder. These matters are not an issue in this trial.
13. Although murder is statutorily defined, manslaughter remains a common law offence and an alternative verdict to a charge of murder if there is evidence to support such a verdict. In such a case, the prosecution must establish beyond reasonable doubt each of the following:
(1) that it was the act of the accused which caused the death; and
• An act is unlawful if it involves a deliberate application of force to another person without that person's consent.
• An act is dangerous if it is such that a reasonable person in the position of the accused would have realised that, by that act, the deceased was being exposed to an appreciable (or significant) risk of serious injury.
• An act is not done in self-defence when the Crown has established either:
(a) that the accused did not believe that it was necessary in self-defence to strike the deceased in the way that he admits; or
(b) that there were no reasonable grounds for forming any such belief.
• It should be noted that the belief of the accused, so far as self-defence is relevant to manslaughter, does not include any intention to kill or reckless indifference to the probability of causing the death of a person.
14. The provision in s 42 of the Criminal Code 2002 (ACT) (the Code) concerning self-defence does not apply to the accused's actions. This provision does not take effect until 1 July 2013 (and see Dal Cortivo v The Queen [2010] ACTCA 14 (9 August 2010) (Dal Cortivo)). However, the provisions in the Code concerning intoxication do. In particular, s 31(1) of the Code has the effect that intoxication cannot be considered in deciding whether a fault element of basic intent exists. In any event, in the present case the accused concedes that his acts were voluntary. However, s 33(1) of the Code also provides:
Intoxication - relevance to defences
(1) If any part of a defence is based on actual knowledge or belief, evidence of intoxication may be considered in deciding whether the knowledge or belief exists.
15. As far as self-defence at common law is concerned, I also take into account the comments of the High Court in Zecevic v Director of Public Prosecutions (Victoria) [1987] HCA 26; (1987) 162 CLR 645 (Zecevic) (Wilson, Dawson and Toohey JJ) (at 661-662):
The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal. Stated in that form, the question is one of general application and is not limited to cases of homicide. Where homicide is involved some elaboration may be necessary.
Murder consists of an unlawful killing done with intent to kill or to do grievous bodily harm. Recklessness may be put to one side as having no apparent relevance in the context of self-defence. Manslaughter also consists of an unlawful killing, but without such an intent. A killing which is done in self-defence is done with justification or excuse and is not unlawful, though it be done with intent to kill or do grievous bodily harm. However, a person who kills with the intention of killing or of doing serious bodily harm can hardly believe on reasonable grounds that it is necessary to do so in order to defend himself unless he perceives a threat which calls for that response. A threat does not ordinarily call for that response unless it causes a reasonable apprehension on the part of that person of death or serious bodily harm. If the response of an accused goes beyond what he believed to be necessary to defend himself or if there were no reasonable grounds for a belief on his part that the response was necessary in defence of himself, then the occasion will not have been one which would support a plea of self-defence. That is to say, the killing will have been without justification or excuse and it will be for the jury to determine how it must be regarded. If it was done with intent to kill or to do grievous bodily harm, then unless there was provocation reducing it to manslaughter, it will be murder. In the absence of such an intent it will be manslaughter: see Viro v The Queen [1978] HCA 9; (1978) 141 CLR 88 at 101.
(My emphasis.)
16. The passage that I have emphasised sets out the law that I apply in this case with the modification that s 12(1) of the Crimes Act requires.
17. The court in Zecevic went on to stress the importance of the factual setting in considering the issue of self-defence (at 662-663):
When upon the evidence the question of self-defence arises, the trial judge should in his charge to the jury place the question in its factual setting, identifying those considerations which may assist the jury to reach its conclusion. In attempting to identify those considerations in any abstract manner here, there is a danger of appearing to elevate matters of evidence to rules of law. For example, it will in many cases be appropriate for a jury to be told that, in determining whether the accused believed that his actions were necessary in order to defend himself and whether he held that belief on reasonable grounds, it should consider whether the force used by the accused was proportionate to the threat offered. However, the whole of the circumstances should be considered, of which the degree of force used may be only part. There is no rule which dictates the use which the jury must make of the evidence and the ultimate question is for it alone. The trial judge should also offer such assistance by way of comment as is called for in the particular case. No doubt it will often also be desirable to remind the jury that in the context of self-defence it should approach its task in a practical manner and without undue nicety, giving proper weight to the predicament of the accused which may have afforded little, if any, opportunity for calm deliberation or detached reflection.
(My emphasis.)
18. The matters that I have emphasised were put by Mr Hastings QC as matters to which I should have particular regard in the circumstances of this case and I do so.
19. The effect of intoxication on an accused's belief in the context of self-defence was considered by Hunt CJ at CL in R v Conlon (1993) 69 A Crim R 92 (Conlon). In that case (at 99), his Honour rejected the Crown submission that the test of self-defence formulated in Zecevic was completely objective. His Honour went on to say (at 99):
That, however, does not resolve the problem which arises in the present case. Although the mixed objective and subjective nature of the assessment as to whether the accused's belief was based on reasonable grounds means that account must be taken of those personal characteristics of this particular accused which might affect his appreciation of the gravity of the threat which he faced and as to the reasonableness of his response to that danger, the Crown has argued (as an alternative to the argument which I have rejected) that voluntarily induced intoxication through the consumption of alcohol or drugs should not be taken into account as such a personal characteristic because (it is said) to do so would entitle those whose perceptions are mistaken by reason only of such intoxication to kill with impunity.
20. After considering various English authorities and a decision of the Tasmanian Court of Criminal Appeal which he distinguished, his Honour concluded (at 101):
In my opinion, therefore, I should take into account the voluntarily induced intoxication of the accused in the present case - in so far as it may have affected either his appreciation of the gravity of the threat which he faced or the reasonableness of his response to that danger - in determining whether the Crown has established that there were no reasonable grounds for a belief by him that it was necessary in self-defence to fire the bullet ...
21. The conclusion of Hunt J in Conlon was qualified by Howie J in R v Katarzynski [2002] NSWSC 613 (9 July 2002). As a consequence of the statutory enactment of a formula for self-defence by s 418 of the Crimes Act 1900 (NSW), Howie J concluded (at [28]) that it was appropriate to direct a jury:
... to the effect that they must take into account the accused's intoxication when considering whether he might have believed that it was necessary to act as he did in defence of himself and when considering the circumstances as he perceived them, but not when assessing whether his response to those circumstances was reasonable.
22. In Dal Cortivo, the ACT Court of Appeal considered the effect of ss 31 and 33 of the Code in their application to self-defence. Those sections provide:
31 Intoxication - offences involving basic intent
(1) Evidence of self-induced intoxication cannot be considered in deciding whether a fault element of basic intent exists.
Note A fault element of intention in relation to a result or circumstance is not a fault element of basic intent (see s 30 (1), def fault element of basic intent).
(2) This section does not prevent evidence of self-induced intoxication being considered in deciding whether conduct was accidental.
(3) This section does not prevent evidence of self-induced intoxication being considered in deciding whether a person had a mistaken belief about facts if, when carrying out the conduct making up the physical element of the offence, the person considered whether or not the facts existed.
(4) A person may be taken to have considered whether or not facts existed when carrying out conduct if -
(a) the person had considered, on a previous occasion, whether the facts existed in the circumstances surrounding that occasion; and
(b) the person honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as the circumstances surrounding the previous occasion.
(1) If any part of a defence is based on actual knowledge or belief, evidence of intoxication may be considered in deciding whether the knowledge or belief exists.
(2) However, if -
(a) each physical element of an offence has a fault element of basic intent; and
(b) any part of a defence is based on actual knowledge or belief;
evidence of self-induced intoxication cannot be considered in deciding whether the knowledge or belief exists.
(3) If any part of a defence is based on reasonable belief, in deciding whether the reasonable belief exists, regard must be had to the standard of a reasonable person who is not intoxicated.
(4) If a person's intoxication is not self-induced, in deciding whether any part of a defence based on reasonable belief exists, regard must be had to the standard of a reasonable person intoxicated to the same extent as the person concerned.
23. The particular subsection to which the court's attention in Dal Cortivo was specifically directed was s 33(1) of the Code. Section 33(1) provides for intoxication to be considered in deciding whether an accused had the necessary belief. Self-defence is based on the accused's perception of the threat and that question of fact includes a consideration of the fact of intoxication. In Dal Cortivo, the court said (at [44] and [45]):
In the present case, it was, in our view, necessary to consider the role of "belief" in assessing the existence of reasonable grounds. Whether there are reasonable grounds for a relevant belief is an objective test but how the accused actually perceived those grounds is a question of fact.
In the present case, it seems to us to have been misleading to ask whether by the standards of a sober person there were reasonable grounds for the appellant to consider that it was necessary for him to act in self-defence. Rather, the jury should have been directed that unless they were to reject the evidence both of the complainant and the appellant as to what the complainant said, they could not be satisfied that there were no reasonable grounds for a belief that the appellant needed to act as he did in self-defence. Given that the evidence did not suggest that more than one blow was struck, it could not be said that the response was disproportionate to the perceived danger.
(My emphasis.)
24. In respect of each of the two deaths, has the prosecution proved beyond reasonable doubt that the accused did not act in self-defence and did the accused intend to kill either one of the deceased or act with reckless indifference to the probability of causing death?
25. As far as self-defence is concerned as an issue, there must be evidence that there is on the proven facts at least a reasonable possibility that the act in each case was done in self-defence (R v Rao [2008] ACTSC 17 (13 March 2008), R v Bonnick (1977) 66 Cr App Rep 266). Once there is evidence which justifies considering self-defence, then the prosecution bears the onus of negating beyond reasonable doubt that the accused did not believe on reasonable grounds that it was necessary in self-defence to do what he did. The prosecution may establish either that the accused had no such belief or that there were no reasonable grounds for such a belief (R v Dziduch (1990) 47 A Crim R 378 (at 379) per Hunt J).
26. Having regard to the admissions made by the accused that he used the meat cleaver tendered in evidence to cause the deaths, the starting point from which I proceed is the cause of death and nature of the injuries sustained by Mr Bolas and Ms Tattersall as well as certain general observations made at autopsy.
27. Dr Malcolm Dodd, a forensic pathologist who performed the autopsies, gave evidence of the cause of death in both cases. Dr Dodd described the injuries in detail both in his reports which were tendered, and in his evidence before me. His evidence was not challenged.
28. Mr Bolas died as a result of a multiplicity of applications of sharp force trauma to the head, neck and left arm and acute blood loss.
29. Dr Dodd described a large injury complex extending through the front part of the forehead, the left eye and left cheek extending into the upper neck and jaw area all on the left side of Mr Bolas' head. There was also an incised injury extending over the right cheek to completely incise the nose and nasal septum. The front part of the skull was so damaged that the brain was on view. As well, there was extensive disruption of the middle third of the face and dislocation and fracturing of the jaw. The large injury complex indicated to Dr Dodd at least five or six independent blows to cause the injury and very likely a multiplicity of further blows superimposed. There had been a complete separation of the left ear off the side of the head and the taking off of hard bone on that side. Dr Dodd was of the view that the degree of force for an injury of this type would exceed moderate. There was an incised injury extending through the middle of the forehead between the eyebrows and over the left side of the nose. The area of the right cheek and ear was incised extending into the ear canal. On the top of the scalp showed an incised injury exposing the cranium. On the left back and side of the scalp was a vertical injury exposing an underlying fractured cranium. On the front and side of the left side of the neck there was an incised injury overlying the voice box and strap muscles. In addition, there was an incised injury to Mr Bolas' left arm above the elbow almost half the circumference of the arm cutting through the joint where the upper arm joins the bones of the forearm. The arm was only held together by a tenuous fragment of tendon and muscle. An examination of Mr Bolas' right arm showed part of the ring finger cut off and cuts on the fingers. In the case of the injuries generally, Dr Dodd was of the opinion that moderate to severe force was involved. He regarded the almost complete amputation of the left arm as a significant defence injury which required moderate to severe force to inflict. He also considered the partial and complete amputation of the tips of the fingers on Mr Bolas' right hand as defence type injuries and as indicating that the hand may have been over the face or head at the time the blade had actually cut those finger tips off in a defensive posture. He considered that "intuitively" the defence like injuries may have preceded the more significant injuries relating to the head and neck.
30. Toxicological analysis showed a blood alcohol concentration of .469g per 100ml and there were cannabinoids, codeine, paracetamol, citalopram, amphetamines and methamphetamines detected. Professor Drummer, an expert forensic pharmacologist and toxicologist, was of the view that the blood alcohol reading could be elevated by reason of diffusion of alcohol from the stomach and small bowel because of the proximity of the blood vessels to the heart from where the blood was taken.
31. The autopsy showed that Mr Bolas was aged 48 years, weighed 83 kilograms and was 174 cm in height.
32. In the case of Ms Tattersall, Dr Dodd was of the opinion that she died as a result of a multiplicity of injuries of sharp force type to the head and neck region and acute blood loss. In her case, she had sustained a large conspicuous incised injury located below the level of the eyebrows and immediately above the eye orbits. The middle third of her face was fractured and caved inwards. Her right eye globe had been punctured and collapsed inwards. There was an incised injury from just below the nose to the lip. There was a further horizontal incision over the lower one third of her face. Located over the left cheek area was an oblique incised injury and a further horizontal injury over her lower lip area towards her jaw. Another horizontal incised injury was below her jaw and above the laryngeal cartilage. That particular injury had extended quite deeply into the neck structure and into the lower soft tissues of the mouth. Although no major artery was severed, Dr Dodd was of the opinion that the injury would almost certainly lead to very acute blood loss. Directly connected with that injury was a further incised injury. On the middle and left side of the forehead there was an incised injury raising the flap of skin at the hairline with incised injuries that could represent a further two independent blows to this area. There was a further incised injury on the right side of the back of Ms Tattersall's head that extended into the cranium to the full thickness of the bone itself. In Dr Dodd's opinion, such an injury would require moderate to severe force. Above the left ear there was a vertical incised injury and behind that, on the side and back of the scalp, another vertical incised injury. A further injury on the left side of the scalp was a raised flap of skin and a piece of the cranium that had been lifted up. Dr Dodd was of the view that this injury occurred when the cutting instrument came at a shallow angle lifting the scalp and bone upwards. There were multiple incised injuries on both arms and shoulders which Dr Dodd described as entirely consistent with defence type injuries.
33. The toxicological analysis showed a blood alcohol concentration of .188g per 100ml. The blood had been taken from the heart and, for that reason, may have been elevated.
34. The autopsy showed that Ms Tattersall was aged 35 years, weighed 71 kilograms and measured 156 cm in height.
35. Such an appalling outcome as that which occurred at the Downer premises on the evening of 10 September 2008 requires an understanding of the character and personalities of the three participants, their relationship with each other and the circumstances of the occasion.
36. A number of statements were tendered, by consent, of friends or acquaintances of the participants who cast light on the personalities as well as the observed interaction of the participants with those persons and with each other.
37. Mr Castles, who was friendly with Mr Bolas and through him the accused, was the only person to give oral evidence of the relationship between the participants. The accused gave evidence of his interaction and interrelationship with Mr Bolas and Ms Tattersall. I take his evidence into account as well.
38. As I have said, the only oral evidence about Mr Bolas' personality and character came from Mr Castles who had known him for some 25 years. The salient features of Mr Castles' evidence was summarised by the prosecution. I take from that summary, that in Mr Castles' view Mr Bolas was a "colourful sort of character who ... had a heart of gold, he was a very nice bloke. A very honourable bloke ...". He was with a motorcycle group beforehand and "had a few of his own issues with amphetamines and things when we were a lot younger". He would drink heavily:
It would take some time for him to wind up a bit. Then if he really went off, then you'd know he'd have an issue with you before he'd go off. But he wouldn't just explode into a rage and go and attack you for it.
39. Mr Castles said that it was possible for Mr Bolas to become violent when drunk, as he said "It never came to light with me many times over the years I knew him but it could quite well happen if he'd had a few drinks". When Mr Bolas was intoxicated:
... he was always quite - quite good. He could handle drink but depending on who he was with and what sort of people they were he would either antagonise them or have a bit of a stir with them. But generally with myself and a few other people he was fairly good.
40. Mr Castles said that Mr Bolas would have a bit of a stir:
It's just a - I suppose with blokes you get out and have a few drinks and you pick on a - a point that might be just getting somebody a bit upset for the day or something like that and he'd just keep going on it and going on it and we use to just call it a shit shirring.
41. Mr Castles said that Mr Bolas had been in the Black Uhlans but at the time they met he was not a member " ... he just de-affiliated himself with them then ... That would have been probably 25, 26 maybe 18, 20 years ago".
42. At the time of his death Mr Bolas had been working at the Kurrajong Hotel and that he had not been employed before in the period leading up to his death.
43. Mr Castles said that since Mr Bolas began employment there:
... was a big change in Struan's demeanour. I think towards the last few years with the support we were giving each other he straightened his life back out, he'd gotten away from all of his older days, his - I suppose his aspect and outlook on life is a lot better ...
... had changed his ways. I suppose the first time I met him was back about, as I mentioned, when I was about 27 so that'd be about 25 years ago. And back then Struan used to associate with some fairly, again, colourful sort of gentlemen and he used to dabble in a bit of business with amphetamines and so on. And back then when he was doing that that was when he used to carry a knife. But the last six years that I was hanging out with him he stopped dealing any amphetamines or drugs or anything of the like and he was trying to get his life back in order.
45. Mr Castles said that Mr Bolas had in his possession at some point a number of items including firearms and a baseball bat which he historically kept at the front door. He also had a machete and an axe. Further, Mr Bolas kept some weapons at the front door as a result of being attacked in his home. The last time he was attacked occurred in mid to late 2007.
46. Mr Castles said that Mr Bolas was a collector of Indian memorabilia and had an Indian tomahawk which was hung on the wall. Also he had a meat cleaver which was in the kitchen, hanging on the wall which was used to cut up chicken carcasses. Mr Castles said Mr Bolas used to carry a knife with him "but in the last few years he wasn't carrying knives ... had left his association and all that type of lifestyle behind and there was no need for him to carry a weapon anymore".
47. From Mr Castles' evidence, and the statements tendered from a female friend, her partner and Mr Bolas' neighbours, it may be said that Mr Bolas had, to an extent, settled down. However, the fact of his blood sample at death showed such a high blood alcohol concentration and the detection of amphetamines, methamphetamines and cannaboids, show alcohol and drug abuse at the time of his death.
48. The various incidents from the case notes and police reports concerning Mr Bolas which were tendered in the accused's case to demonstrate a disposition to aggressive and threatening behaviour involved with heavy drinking. There were four such incidents in 1997, 2001, 2003 and 2006. In the incident in 2003, Mr Bolas is reported as being in possession of a knife and is reported as saying to police "The knife was for self protection. What do you expect with the line of work I'm in". This evidence was put forward, by the defence without objection by the prosecution, as "tendency evidence". In some circumstances, this evidence might have dubious probative value but it does go to meeting a submission that it might be said to be extremely improbable that Mr Bolas behaved in the way the accused said Mr Bolas behaved (cf R v Cakovski [2004] NSWCCA 280; (2004) 149 A Crim R 21 per Hodgson JA (at [36])). Although I can accept that Mr Bolas had a violent disposition when affected by alcohol and had the capacity to make threats to inflict serious injury, I do not inevitably infer that on the occasion with which I am concerned, he behaved in that way. On the other hand, the evidence lends support to the accused's evidence that it was Mr Bolas who came at him with the meat cleaver in the course of a drunken altercation.
49. It was also submitted on the accused's behalf that the past incidents that were the subject of two of the police reports, indicate that Mr Bolas persisted in struggling against police notwithstanding he was being overwhelmed in the struggle. This was said to show a propensity to continue in any struggle in which he might be involved. Apart from the significant circumstance that the struggle involved police officers to whom Mr Bolas had a particular attitude, that particular situation is so different as not to give me any confidence that Mr Bolas would have inevitably behaved in that way on this occasion. I do not, however, accept the proposition put on behalf of the accused that I can readily draw the inference that once Mr Bolas had begun his attack on the accused, he would "engage in that attack with considerable and sustained ferocity". That said, I accept the accused's account that Mr Bolas was first in possession of the meat cleaver and that he advanced towards the accused at the time of the event that resulted in his death.
50. I take to be of some moment the relationship between Mr Bolas and the accused. Mr Castles described his friendship with both Mr Bolas and the accused:
When you say "friendship" what do you mean?---Again, same thing, we used to get together, Scott and myself and Struan were very much all similar. We didn't really have a very close circle of friends that day and we - or that time so we'd sort of hang together and have a few drinks and just catch up together all three of us.
Did Mr McDougall develop a friendship with Mr Bolas?---I believe so, yes.
Was it the case that all three of you were friends?---Correct, yes.
And with Mr McDougall would you socialise with him?---Yes.
And what would you do?---We'd either go out and have a - again a few drinks or we'd go for a bite for lunch or something. We'd just go and get in the car and drive around and find a pool table, have a game of pool, have a few drinks.
And would Mr McDougall consume alcohol?---We all would, yes.
Yes. Would you consume alcohol to the point of intoxication?---I believe so, yes.
What was he like when he consumed alcohol to that point?---I think - to myself and Struan generally he was pretty good. I think people that we weren't really aware of or he knew or whatever he'd probably get a bit agitated if he wasn't quite sure of who they were and went from there.
51. Mr Castles was also asked about the nature of the friendship between the accused and Mr Bolas:
What did you observe about the nature of their friendship?---I suppose it was - it was a developing friendship. Very hard to sort of put a word or a phrase to it. We were all - we all enjoyed each other's company. We'd all enjoy having a drink together. At the end of the day we could go home and go our own ways. I don't know if the friendship was as close as probably what I had with Scott or what I had with Struan but I think it was still a developing friendship.
52. Mr Castles elaborated on what he had said about Mr Bolas "shit stirring" his drinking companions:
Have you been present on occasions where Mr Bolas has shit stirred, using your expression, Mr McDougall?---I can't really recall if there was - to what level there was but there was just that camaraderie, that banter we used to just - we were all guilty of it, you know.
Well I suppose camaraderie and banter, what do you mean by that?---It was more or less if somebody was saying something and then someone would pick up on it. We'd have a bit of a joke about it and then we'd probably just go back and forward and as the day went on if we'd have a few more beers. If it was still getting a few laughs out of it we'd still keep bantering that around.
Is that what you refer to shit stirring?---Yes. Yes.
53. I think that I can conclude from Mr Castles' evidence that the aggression and violence exhibited by Mr Bolas was directed at others rather than his drinking companions. There was this question and answer in the cross-examination of Mr Castles:
As part of your duties, if I could put it that way, when you were socialising with him did you see it as your responsibility to keep your eye on him?---Not so much on him. It was more other characters that we knew that he'd known through the years and many occasions we would be out drinking and somebody'd want to start something with Struan. So we felt that when we were out that if we were altogether with all three of us or two or whoever it was we'd just keep an eye out for each other.
54. The only evidence of a physical confrontation between Mr Bolas and the accused was given by Mr Bolas' friend, Ms Collins in her statement that was tendered by consent. The aggression on that occasion seemed to be all on the accused's part.
The relationship between the accused and Ms Tattersall
55. Ms Tattersall had a troubled past. She had met the accused when she and he were in Quamby, a youth detention centre. At the time she was 15 or 16 years old.
56. Ms Tattersall had been an escort worker and had run a brothel which had closed down some years ago. She renewed her friendship with the accused in 2004. When the accused returned from Queensland in early August 2008, he stayed at Mr Djokic's premises in Queanbeyan. The accused contacted Ms Tattersall as a person to "party with", take drugs and get together with other friends. It seems that, for a short time, the accused stayed at her place in early September 2008.
57. The accused described his relationship with Ms Tattersall as that of a friend without a "romantic attachment", although he said that they had been intimate a couple of times. Ms Luthy, a long term friend of Ms Tattersall, met the accused at Ms Tattersall's place in the afternoon of 10 September 2008. She witnessed a declaration by the accused concerning Ms Tattersall when she says he said "If anyone ever fucks with Julie or tries to hurt her, they have to go through me first". That remark assumes some significance in light of the accused's evidence concerning the events later that day.
58. In his evidence, the accused expressed his remorse at having killed Mr Bolas but "especially" Ms Tattersall. From a consideration of the whole of the accused's evidence, I accept that, as far as Ms Tattersall was concerned, the accused was genuinely remorseful.
59. In the latter part of the morning of 10 September 2008, Ms Tattersall spent time with two officers of Housing ACT who were present to inspect her unit at Ainslie.
60. At some point after that inspection, the accused met up with Ms Tattersall at her unit. The accused had commenced drinking at about 9.00am when he was at Mr Djokic's house where he was staying in Queanbeyan. He was drinking bourbon mixed with a greater or lesser amount of coke. He said he finished a bottle of bourbon that had about 40% left in it before going to Ms Tattersall's unit. At some stage he says he went to the Ainslie shops to purchase a "six pack" of Wild Turkey bourbon. At about 1.50pm, Ms Tattersall and the accused went to Woolworths at the Dickson shops and later in the afternoon they returned to Ms Tattersall's unit in Ainslie where they stayed until about 5.00pm.
61. At about 3.00pm that afternoon, Ms Luthy arrived at Ms Tattersall's unit. Ms Luthy left Ms Tattersall's until at about 4.30pm. The accused was at the unit at that time and was drinking from a bottle of bourbon.
62. Shortly after 5.00pm, Ms Tattersall and the accused were at the bottle shop of O'Neill's Irish Pub in Woolley Street, Dickson. Ms Tattersall purchased a 700ml bottle of Wild Turkey bourbon. Ms Tattersall and the accused were served by Mr Sullivan. Whilst they were being served, the accused became involved in an altercation with Mr Sullivan during which he struck Mr Sullivan to the side of his head. Ms Tattersall intervened to diffuse the situation.
63. In respect of the confrontation with Mr Sullivan, the accused said:
Yes, well, I went in and I was, you know, sort of - I was pissed. They were giving away free wine glasses with some bottle of plonk of some sort, and there was just heaps of them piled up, and I said, "Look, mate, is it all right if we grab some of these, because we're going to a friend's house and take some glasses with us. That's cool mate, you know, no worries." And he said, "No, I can't do that, mate." And I said, "Come on, come on, come on," and he said, "No, mate, but I can give you a free paper bag." And I gave him a thick ear. ... I wasn't intending to hurt him. It was just - it was wrong, definitely it was out of line, but I did it, and it was just a thick ear for being cheeky, I suppose. I thought he was being cheeky, but he was just doing his job.
64. At some point after this, the accused and Ms Tattersall went to Mr Bolas' premises at Downer, however Mr Bolas was not at home. They returned later.
65. In the late morning on 10 September 2008, Mr Bolas had been collected from his premises in Downer by Ms French, his former partner and mother of his daughter. Mr Bolas and Ms French went to Canberra airport to farewell his daughter who was leaving on an overseas trip. At about 1.45pm, after returning from the airport, Ms French left Mr Bolas at the Dickson shops where Mr Bolas purchased a bottle of wine from the Liquor Department of Woolworths. He then visited friends in Downer, spending most of the afternoon with them. During that time he had "a couple of wines". At about 6.00pm he was driven back to his premises at Downer. It does not appear that the accused and Ms Tattersall were there when he was dropped off.
66. Mr Bolas was last seen alive at about 8.20pm near Woolworths at Dickson shops, a short distance from his Downer premises. It was not reported that he showed any signs of intoxication.
67. The accused gave evidence of what took place after he and Ms Tattersall returned to Mr Bolas' premises when Mr Bolas was there. That was apparently sometime after 8.20pm. The accused described himself, Mr Bolas and Ms Tattersall sitting at a round table in the dining room drinking and listening to music. They were all drinking but he did not think that Ms Tattersall was "pissed".
68. The accused felt that out of 10, he was "probably just going along at eight and a half, nine or something" on a scale of intoxication. He also took a pill about which he remarked "I thought it was Xanax. I thought it was like a - something to make you feel just cruisy, mellow and go along with the night sort of thing".
69. Mr Bolas was drinking "lots of Bourbon, very little Coke" and the accused wanted Mr Bolas to catch up for the reason that he "was way ahead of him and wanted him to have a good time and enjoy the party and get on the same level sort of thing as they say, one's just - you know, I don't know, partying at the same level, I suppose".
70. The accused said that others turned up and were talking to Mr Bolas. They were apparently not there for long, according to the accused. At sometime later, the accused and Mr Bolas engaged in a conversation about a friend of Mr Bolas, "Ellie", who the accused believed was going to "dob" on someone. The accused said that this conversation became heated. The accused's evidence of this conversation was that Ellie "was going to go and tell on someone about something" and that "she was going to dob on someone" and "inform the police". He was asked:
What feelings are held towards people who do cooperate?---Disgusting. Disgusting.
Why - "Why the fuck was she in the house. Why are you ..." what's the word for it "... keeping her there? Why are you helping her?".
What did he say?---It was something to the - he almost tried to deny it. It just got - it got heated from there.
And what was said?---It would've been - he got angry at me for the accusation. I said, basically, "If you have people like that around your house, you'll catch fleas".
72. Then he said, "It escalated." ... "Well, it just got very heated". The accused recalled that during this discussion, Ms Tattersall was sitting at the table. He also said that the two men who had turned up earlier were "Behind Struan and to his left, I think. It's - like it's not 100 per cent". Unfortunately, the question which preceded this answer assumed that the two persons whom the accused had referred to earlier were still present. The accused's earlier answers gave the impression that these persons had left before the conversation between Mr Bolas and the accused became heated. Despite the accused's suggestion that there were other people present and that impliedly affected his perception of the threat he felt he was under, I do not consider that this is any more than a construct which is not founded in genuine recollection of the circumstances. I do not regard it as a reasonable possibility that there were persons present other than the accused, Mr Bolas and Ms Tattersall.
73. As far as the conversation was concerned, the accused recalled speaking of Ms Tattersall:
I said, "I'd heard something about her as well".
Had you heard something about her?---Yes.
What had you heard?---Something - it's just that she - she might be talking to police that's all. I didn't believe it. I didn't want to believe it. ... Did you use the word "informant"?---No, no. I probably would've used the word "dog".
Did you accuse Julie of being a dog?---More or less. I asked her, in a sort of a way. Inferred it.
74. The accused then gave evidence that the heat of the conversation was "escalating" "to the point of he (Mr Bolas) was going to lose he plot. She (Ms Tattersall) was angry, he (Mr Bolas) was going to lose the plot".
75. The accused also stated that the conversation was getting "louder" as:
... the worst thing of it - or our world is being discussed.
... That's the worst thing you can do, you know, any sort of thing you do in the criminal type world you never ever talk to police, no matter what. That's it.
76. As the argument escalated, the accused recalled something happened:
Well he's picked up the meat cleaver and come at me, simple as that. I don't know the words he used but it was in the middle of saying something towards me.
77. At this time the accused said that he was still sitting. The accused then:
Defended myself, just blocked him at first. ...
I just, I raised my hands and somehow I tried to grab his arm. Anything I could get hold of to stop it connecting with me. ...
I think you've said you don't recall precisely but the end result was that you actually got the cleaver from him did you not? And then what happened?---Just started fucking lashing out, just lashed out.
78. The accused gave evidence that he did not recall what happened to Ms Tattersall:
Julie Tattersall, of course, was there and she ended up deceased as well. Do you remember what happened in relation to her?---No. I remember after it.
Do you have any recollection of her being there or being involved in the altercation that occurred between you and Mr Bolas?---Not so much. I thought there was other people in the room.
Well what do you mean by that?---Well, I just thought there was other people there, they may get involved. It's an instant thought. I just, knew there was more than one person coming at me sort of thing.
Did you think that included Julie?---I didn't think anyone's name, anyone in particular.
79. His evidence as to what he next remembered was:
What do you remember next?---I was sort of on my knees.
Where?---Yes, next to - in front of Struan.
Where was he?---On the ground.
Whereabouts?---Somewhere in front of the table.
What did you observe?---Death.
Did you see that he'd been badly injured?---He's dead, he's killed.
Did you see where Julie was? Where was she?---She was over the left a bit.
Did you see what condition she was in?---Yes.
What was your reaction to that?---Same reaction for both.
Which was?---It's a mixed, I mean, it's devastation, it's fear.
At any time had you intended to kill Struan Bolas?---No I never, no.
Had you ever intended to kill Julie Tattersall?---No way in the world.
80. The accused also gave evidence as to his knowledge of "weapons" being in Mr Bolas' premises. Those "weapons" included shot guns, a meat cleaver, baseball bat and "tomahawk thing". In respect of the meat cleaver, he stated:
I'd seen that meat cleaver.
... Often he would have it on the table where we were sitting or right near him. ... four times out of 10 it'd be on the table. Sometimes not, sometimes it's just hanging up. I'd see it all the time because it's an alarming looking thing.
... I'm pretty sure I'd seen it in the kitchen hanging somewhere at some stage, yes.
81. The injuries to both Mr Bolas and Ms Tattersall were horrific. As I have said, it is clear from the unchallenged evidence of Dr Dodd that both deceased sustained multiple applications of sharp force trauma. In each case the cause of death was "one of acute blood loss secondary to a multiplicity of applications of sharp force trauma to the head and neck". In Dr Dodd's opinion, it was not possible to specify a particular blow or injury which might have been the cause of death in each case.
82. In the case of Mr Bolas, I go to Dr Dodd's post mortem report for a detailed account of the injuries:
The injury complex consists of numerous intersecting incised injuries which involve in one plane, a vertically oriented incised defect measuring approximately 165 mm in length which extends through the left frontal cranium, orbit and left maxilla and an incised injury extending through the upper neck/mandible area in an oblique fashion which measures approximately 110 mm in length which has excised though [sic] the inferior one-half of the left mandible and chin.
Examination of the large complex area of trauma indicates at least five to six independent blows with very likely, a multiplicity of further blows superimposed over the cental [sic] region of maximal trauma.
83. In his evidence he elaborated on the injuries that he had noted and by reference to photographs and a model he described his opinion of the degree of force required to cause the more significant injuries. In particular, he described the force necessary to cause the injuries. In the case of the head and neck, he was of the view that moderate to severe force was necessary to cause the injuries noted. He described the several injuries as individual injuries "then on top of that there are almost certainly additional blows which further compounded the trauma and caused bone fragments to go inwards". In the case of the left upper limb, he described the injury as one which "effectively almost cut the arm right off. The arm is only held together by a tenuous fragment of tendon and muscle".
84. In the case of Ms Tattersall, Dr Dodd's post mortem report described the following:
The trauma involves the frontal area, with a large conspicuous incised injury which measures approximately 120 mm in length immediately below the level of the eyebrows and above the orbits.
Upward reflection of the head exposes the deep neck structures with full exposure of the laryngeal lumen and floor of mouth.
Reflection of the skin flap discloses a series of intersecting incised defects to the subjacent frontal cranium which may represent a further two independent blows to this area.
Palpation of this defect discloses a full thickness incised defect through the subjacent cranium.
The defect measures approximately 60 mm in length.
85. In his evidence, Dr Dodd further elaborated on the neck and head injuries. The injury described at point 11 of the autopsy report was significant in that the depth of the cut and the severing of relatively major blood vessels, veins and arteries would have lead to acute blood loss. The comment made by Dr Dodd in his report was that the left common carotid artery was severed and there was extensive trauma to the overlying strap muscles of the neck. The injury described at point 14 to the back of the head would, in Dr Dodd's opinion, have required moderate to severe force to inflict. Apart from the injury described at point 11, most of the injuries were towards or to the back of the head and seem to represent a number of separate blows.
86. The prosecution called Simone Lewis as an expert in human biomechanics. However, in my view, there is a degree of uncertainty and speculation in a biomechanical reconstruction of the order in which the injuries to Mr Bolas and Ms Tattersall were inflicted. She expresses an opinion as to the "most likely" "order of injuries" in her report. As to Mr Bolas:
Defensive Wounds to Arms and Hands
I
Vertical Injuries to the Face and scull [sic]
Injuries to the Top/Back of the Skull
I
Horizontal Injuries to Face
I
Disruption to Injuries
Defensive Wounds to Arms and Hands
I
Vertical Injuries to the Left side of Scull [sic]
Injuries to the Top/Back of the Skull
I
Neck Injury with cut to shoulder
I
Horizontal Injuries to Face
88. I take that opinion as a possible scenario but I accept what Dr Dodd said when he was asked about the complex task to endeavour to specify a particular blow or injury which might have been the cause of death. He responded:
Yes. Yes, that is exactly right. When you have multiple applications of sharp force trauma to this degree you've got immediate and acute blood loss to the external environment, blood loss internally as in both cases, aspiration of blood into the major airways so that creates a degree of asphyxia if you like. We have bruising and bleeding around the brain, in one case, at least and certainly in Bolas' case bleeding around the brain stem which can lead to cardiac arrest and also blood within the ventricle system which can lead to sudden death as well. So there are many, many things that come from the applications of these forces. But to try to divide them up, even give them priority, is very difficult, so it's best to deal with them in within a generic sense.
89. The further questions and answers elaborated on this:
Yes. And is it fair to say that any one of a number of the blows could have resulted in bleeding which ultimately, if untreated, could have caused death?---Yes. In particular the severance of the carotid artery on the left side in the case of Bolas would lead to very, very extensive arterial spurting, very acute blood loss, loss of blood pressure and death. In both cases there is quite a lot of blood within the airways from the open wounds and bleeding internally so aspiration of blood is high on the list as an immediate cause of death as well.
Apart from that injury were there, in both cases, other injuries which alone could have caused death if untreated and bleeding allowed to result?---I think the most significant injuries are in isolation probably the ones to the front of the neck in both cases. Anything beyond that is very hard to decide. If you're taking each injury in isolation, one only, then potentially they are possibly survivable but as an aggregate they all add up to acute blood loss and all the complications that come from that.
Now we take it that you're not able to put a sequence to the way in which the wounds were inflicted other than what you've said generally about some of the defensive wounds - - -?---Yes.
- - - indicating to you, intuitively I think you said - - -?---Very much intuitively.
- - - at first?---Very much intuitively. I mean it's possible that there may have been some injuries landed on one or either victims to the facial area that may have come first and the person still would have had their faculties and be able to react in a defensive way so the defensive wounds may have come shortly after that. Or alternatively the defensive wounds may have come first and then the other injuries second and I really can't decide which came first other than to speak in intuitive terms.
But leaving aside what you've described as a defensive injuries [sic] and dealing with the other injuries particularly around the head is [it] correct to say that you're not able to put them in any sequence?---No not really.
90. Accepting Dr Dodd's evidence, but informed by the analysis of Ms Lewis, the issue is, as the defence puts it: has the prosecution excluded that the blow causing death was not delivered in circumstances consistent with a finding of self-defence?
91. As far as the accused is concerned, he was examined by Federal Agent Olinder after he had been taken into custody on 11 September 2008 and later by Dr Parekh of the AFP's clinical forensic medicine service. There were a number of minor injuries observed such as "scratches, abrasions, roughened and reddened areas, a blood blister and healed scars. None of the injuries indicated an injury from the meat cleaver nor was it suggested that they had any effect on his movement or mobility. There was no suggestion that any of the minor injuries observed occurred as a consequence of anything done by either of the deceased.
92. The deceased and the accused were all significantly affected by alcohol and in the case of Mr Bolas and the accused, probably also by the drugs found in their systems.
93. Professor Drummer, a forensic pharmacologist and toxicologist, gave evidence of the effects of alcohol having regard to the blood alcohol concentration at post mortem of .469 per cent in the case of Mr Bolas and .188 per cent in the case of Ms Tattersall. He calculated the blood alcohol level of the accused at the time of the incident, having regard to his blood alcohol concentration of .162 per cent at 4.30am, as between .21 and .28 per cent.
94. Professor Drummer's report described the general effects of alcohol:
95. As far as Mr Bolas was concerned, Professor Drummer was of the view:
96. Notwithstanding the view that the alcohol concentration could have been lower, both the prosecution and defence accepted that Mr Bolas' blood alcohol concentration was significantly high. It also follows that the effect of alcohol in Mr Bolas' case was to significantly impair his coordination and rational thought processes.
99. I accept that the accused was very significantly affected by alcohol and perhaps the drug he had ingested. Nevertheless, he was a regular drinker and his degree of intoxication does not seem to fall in the category that Professor Drummer appears to ascribe to Mr Bolas, assuming Mr Bolas' blood alcohol is "real", of "not be able to carry out any coordinated function - respond to any threat, or have any rational thought process".
100. The accused's evidence as to what he recollects of the events indicates the contrary. The accused's recollection of the altercation with Mr Bolas, his recall of what Mr Bolas did and his responses all indicate that his cognitive functioning was not materially impaired at the time. It may also be noted that the actions which he recalls after the event, in deliberately setting fire to the premises to try to get rid of the evidence, driving a motor vehicle to Mr Djokic's premises and giving an account of his actions to Mr Djokic, are all indicative of his cognitive functioning not being affected to any critical degree.
The events after the incident resulting in the deaths of Mr Bolas and Ms Tattersall
101. The accused gave evidence of what he did after he appreciated that Mr Bolas and Ms Tattersall were dead:
Having come to the realisation that both Struan and Julie were deceased what did you do?---First reaction I was devastated, I just cried.
When you say you were devastated what did you think?---I thought I've killed two people especially Julie. You know, like ...(indistinct)... her more than anything.
Did you say you cried?---Yes. It's more like screaming crying.
What did you do next?---I don't know how long that went for. Then I started going into - I - I realised what's happened and I thought "I'm going to get busted. I'm going to get put away forever. No one's going to believe anything, no one's going to - I'm fucked."
So what did you do?---Tried to get rid of all the evidence.
How did you do that?---Well, I do know how exactly because I've read the stuff but I do remember putting something in a toaster. You know, I can tell you exactly what I've read, it's what I'll say but I don't remember exactly.
So, having put something in the toaster do you remember what you did next?---I went to leave.
Through which door did you leave?---Front.
Did you do anything to Struan or Julie before you left?---No. I've seen footprints around the house in the photo but all I remember is leaving.
102. The fire that resulted from the accused's actions was extensive and resulted in portions of Ms Tattersall's body being damaged by the fire.
103. Reference may also be made to the accused taking steps after the event to dispose of his boots and clothing and that he was found some hours after the event, not at the premises where he had gone after the event, but in his vehicle in the open countryside.
104. The prosecution sought to rely upon these circumstances as evidence of consciousness of guilt on the part of the accused.
105. The defence referred to the comments of the Victorian Court of Appeal in R v Nguyen [2001] VSCA 1; (2000) 118 A Crim R 479 where Winneke P observed (at 489):
The probative strength of post-offence conduct, such as concealment of weapon or flight, with or without "covering lies", will depend upon many factors including the circumstances in which the conduct occurred and the issue in proof of which the evidence is tendered. If it is open to be used by the jury for the purpose of drawing an inference as to the state of the accused's mind at the relevant time, the conduct will have to be assessed in the light of the probabilities (cf Broadhurst [1964] AC 441 at 451). But, because such evidence is capable of being misused by the jury, the interests of a fair trial to the accused require, as I think they required in this case, a careful direction from the trial judge of the type referred to in Edwards v R (supra). (See also Faure [1999] VSCA 166; [1999] 2 VR 537 at 546 [28] per Brooking JA; White at 404; Renzella [1997] 2 VR 88 at 92.) Such a direction should have involved a specific identification by the trial judge of the conduct being relied upon by the Crown to prove murderous intent; a direction that they could only use such conduct as proof of guilt if they were satisfied that there was no other explanation, consistent with innocence for it; and that the accused only engaged in the conduct because he knew that revelation of the truth would implicate him in the offence charged. Properly directed, the jury should also have been told that conduct such as that relied upon by the Crown could stem from reasons other than realisation by the accused of his guilt of the crime charged, what those other reasons might be, and that, if they accepted that a reason of that kind was the explanation for the conduct, they should not use the evidence as probative of guilt (Edwards at 210-211; 361-363 per Deane, Dawson and Gaudron JJ; Osland [1998] HCA 75; (1998) 197 CLR 316 at 333 per Gaudron and Gummow JJ).
106. I am not, in the circumstances of this case, prepared to infer a consciousness of guilt as to the murder of the deceased from the accused's conduct. It seems to me that the accused's actions after the event are equally consistent with the accused's belief that no-one would believe him as to the circumstances as he says that he perceived them to be. Nevertheless, I consider that the accused's actions after the event demonstrate a degree of appreciation of what had happened and how it might be viewed by others. In other words, a process of rational reasoning.
107. I further think that the deliberate act of setting fire to the premises and his later actions, displayed a cognitive appreciation of the circumstances in which he found himself despite the considerable amount of alcohol that the accused had consumed. It is that appreciation and the conversation that he later had with Mr Djokic when he returned to the place where he was staying, that I find most telling in inferring what he knew and intended at the time he inflicted the blows on Mr Bolas and Ms Tattersall.
108. From the premises at Downer, the accused drove to the place in Queanbeyan where he had been staying. The premises were owned by Stan Djokic. When the accused arrived there after 10.30pm that evening, Mr Djokic was in bed with his wife. Both Mr Djokic and his wife said that the accused woke Mr Djokic and he went to the back of the house where the accused's room was and that they had a conversation. The accused said that Mr Djokic came into his room after he entered the house. Mr Djokic's account of what took place was:
Before that you gave some evidence about your observations of
Mr McDougall. What was he doing?---Pacing. Just, you know, we were in the room. It's not a very big room. It was just like two steps, turn around another two steps basically and just very fidgety, very agitated.
At that point was he saying anything?---Basically I think if I remember I said what's happened, what's going on? What'd you get me out of bed for basically? And then he just said what happened.
...
What did you say to him?---What did I say? I said well what did you wake me up for, what's going on?
What did he say?---Am I allowed to use the same - - -
Yes?---I fucked up, I fucked up, I fucked up. And I said what do you mean, what do you mean? What are you talking about, what are you talking about?
Did he respond when you asked him that?---Yes.
What did he say?---He killed two people, [double] murder.
Did you ask him anything else about - - -?---Yes I asked him what do you mean, what do you mean? Yes.
Did he respond?---Yes.
What did he say?---He said we were fucking around if I remember correctly. Sorry about the language everybody. They were fucking around playing, just guys being guys I suppose on the piss. I don't know, they were just mucking around and one of the other, the other gentleman that passed away he had some object - yes.
HIS HONOUR: Yes. Perhaps - - -
MR HASTINGS: I object to the form of this, your Honour.
HIS HONOUR: Mr Djokic, what we want to know is exactly what he said. It doesn't matter what the language is?---Okay.
But we do need to know the exact words that you say that Mr McDougall said at that time. So just try and concentrate on the exact words and just tell us what he said. Don't worry about the language?---Yes okay, thank you.
MR TODD: You indicate something about murdering two people. Did you ask him what he meant by that?---I asked him what happened, yes.
And he told you certain things?---Yes.
Can you tell the court what he told you happened?---He told me both of them were pretty blind and one guy, the guy that he murdered was swinging a meat cleaver, machete thing. I can't recall exactly what he said. He was just swinging it around and I said well what happened? And he said I blocked it and I said well what do you mean? He said I blocked it, I grabbed it and I swung it that way. And I said well what happened? He said he cut his throat.
[What then followed was a demonstration of the actions involving the meat cleaver.]
All right. Now, Mr McDougall then told you something about what he did - that is, what Mr McDougall did?---Yes.
What did he tell you he did?---He got it off him and swung it straight at him.
...
Now, Mr McDougall then told you something about what he did with the meat cleaver?---Yes.
What did he do?---He swung it straight at him.
First, before that, he took it from Mr - from the deceased man?---Yes.
Did he describe how he did that?---He blocked it, that's what he said, like, with his hands, and then somehow got it off him and then swung it straight back at him.
...
MR TODD: Thank you. What did he say?---Straight after, he said basically - I said to him, if I remember, "Did you try to help him" after he cut him. And he said, "He was fucked." I said, "What do you mean he was fucked?" He said, "He was fucked. He was dead." He said, "I finished him off."
Now, before that, when he said "He was fucked," did he describe why?---Because he said blood was pissing out of his throat. He said he cut him. I said, "Well, didn't you try to help him?" He said, he goes, "He was fucked. Blood was just pouring out of his throat."
And was this after he demonstrated to you what he did with that backhand motion?---Correct.
That you described to the court. Did he mention something about the man's throat?---There was blood pissing out of it.
And then he said something about he had to finish him off, I think your words were?---Yes.
All right. Did he say anything else?---No, he just - he went over and over - well, after when he said he finished him off, he basically dropped down and he just - you know, just showed me what he did.
What did he show you?---He hooked in, you know, like, maybe 10 blows, just, yes, just went off his head.
...
Can you recall the words that he used?---I'm pretty sure it was hooked in.
Now, did he tell you why he was hooking in?---Well, I did - if I remember correct, I said to him, "Why didn't you try to help him?" He said, "He was finished, he was finished. He was fucked," so he finished him off.
109. After some further conversation and opening the door to check on his wife and child, he said that the following further conversation occurred:
Right. What did you talk about?---He started blabbing on about the same - going over the instance, what happened, and then he mentioned something about "Then she walked in." And I said "What?" And he said a lady walked in the house. And I said, 'Well, what happened?" "She started screaming," and I said, "Well, what did you do?" He said, "I give it to her, too."
Right. Did he say anything more about that?---She was screaming, and then I just said - yes, I can't recall exactly what I said. I just looked at him in disbelief, and he mentioned something about - he said, "Don't worry," and I said, "What do you mean, don't worry? You just bring this to the house," you know, et cetera, et cetera." I said, "What do you mean, don't worry?" And he goes, "Don't worry, I burnt all the evidence. I burnt the house down."
Did he describe how he did that?---Yes, toaster, tissues, hot plates, if I remember. I'm not quite sure, yes. That's how he tried to start it, and he said "try", because he went back out of the house, and he went back to the house, because he said he didn't think it was alight, because the fire wasn't happening, so he tried to go back in there and start it again.
Now, earlier you mentioned something about "she"?---Yes.
Can you recall what he said or what he told you about - - -?---He said, "And she walked in." And I said, "What do you mean?" I don't want to be rude, but I'm not sure of the name, yes. He said he just basically give it to her.
110. I have referred to this evidence in some detail because I regard it as a fair account given by the accused when, despite the alcohol that he had drunk, he might be expected to have recounted his best recall of the event. For his part, the accused gave this evidence of what he said to Mr Djokic:
MR HASTINGS: Yesterday Mr Djokic gave evidence when you and he spoke after you went back to the house after the event amongst other things you said to him, "And he was fucked." Mr Djokic said that he said, "What do you mean ,was fucked?" And you said, "He was fucked, he was dead, I finished him off." Do you remember saying that to
Mr Djokic?---No.
Did that happen, that you finished him off?---No, no.
Mr Djokic also said at page 307 that you said, "Blood was pissing out of his throat," and when Mr Djokic said, "Well, didn't you try to help him?" You said, "He was fucked, blood was just pouring out of his throat." Do remember saying that to Mr Djokic?---No.
Was that the case that blood was pouring out of his throat to your recollection?---No.
In relation to Julie Tattersall and your explanation to Mr Djokic he said at page 310, that you said, "Then she walked in, a lady walked in the house. She started screaming, I give it to her too." Did you say that to
Mr Djokic?---(No audible reply).
Did that happen that Julie Tattersall walked into the house?---(No audible reply).
And again at 310 Mr Djokic said yesterday that you said, "And she walked in and you just basically give it to her." Did you say that?---(No audible reply).
And did that happen at Mr Bolas' house? Did she walk in and you attack her?---No we were all sitting down.
111. The accused, by his own admission, cannot challenge Mr Djokic's account of the conversation on that night. It does not accord with what the accused now says took place but no explanation was offered by the accused as to why Mr Djokic's account of what he says that he was told should differ from what the accused now says that he recalls.
112. It was submitted on behalf of the accused that I should not treat the evidence of Mr Djokic as a literal account of what was said. In that regard, Mr Djokic's account that he was told Ms Tattersall "walked in the house" and "started screaming" was said to not accord with two matters. One was there was no evidence of screams being heard. That would not appear to me to be a significant criticism. The other was that there was some forensic evidence to suggest that Ms Tattersall's blood was found on the outer sole of Mr Bolas' footwear suggesting her involvement in a scuffle between the accused and Mr Bolas. In my view, that circumstance is not inconsistent with what Mr Djokic says he was told. What I do accept is that Mr Djokic was being told by the accused of Ms Tattersall's involvement in circumstances where the accused was recalling the events a short time after they had occurred. I am satisfied that at that time, the accused did recall Ms Tattersall's involvement in the event that caused her death. The important comment made by the accused to Mr Djokic, which I accept was said in respect of Ms Tattersall was, "I give it to her too".
113. In particular, I also find that the accused's account to Mr Djokic of Mr Bolas and the accused just "fucking around playing, just guys being guys I suppose on the piss" as an accurate account of what happened. If there was the fear of any threat to the accused as a consequence, I do not think the accused appreciated it as other than a need to take the cleaver from a drunken Mr Bolas. It should not have incited the accused's extreme reaction to it but having reacted as he did in disarming Mr Bolas of the cleaver and in then "lashing out", there was no further call for apprehension on the accused's part. Everything that the accused did from that point was not necessary for his self-defence, nor do I accept as a reasonable possibility that he believed it to be so.
114. Having reacted in the way that he did, the accused had no justification in proceeding to, as he said, "finish him off". I do not regard the effect of alcohol on his thought processes or cognitive abilities as affecting the formation of an intent to kill at that stage. Even if the initial response could be said to be justified, it cannot justify the killing of another when the person using the force knows that it is unnecessary and the use of such force is accompanied by a specific intention to kill. As Higgins CJ observed in R v Porritt [2008] ACTSC 33 (22 April 2008) at [12]:
A second basis for manslaughter was that of excessive self-defence. That is no longer to be regarded as a separate head. In truth, after Zecevic v Director of Public Prosecutions (Victoria) [1987] HCA 26; (1987) 162 CLR 645, the issue for self-defence is whether the accused believed on reasonable grounds that it was necessary for him or her to use force to avert a threat of death or of proportionately serious injury. If that defence fails, then the issue remains whether the accused intended to kill or was reckless as to the probability of death. If neither of those intents was present, then the use of the force, not being excused, will be manslaughter, assuming the accused was aware of an appreciable risk of serious injury. If one or other such intent was present [then] the verdict would be murder. A person cannot, in effect, take advantage of an occasion allowing force in self-defence to kill another when to go so far is known by the user of the force to be unnecessary. On each of these issues an adverse finding to the accused can only be made if the court is satisfied beyond reasonable doubt that it should be so made.
(My emphasis.)
115. A similar observation may be made about the accused's attitude to his application of force to Ms Tattersall although in her case, there does not appear to have been any precipitating event. What he said to Mr Djokic, "I give it to her too", does not import a suggestion of a perceived threat but it does imply a similar intention to that which I find the accused formed after his initial reaction to Mr Bolas' actions.
116. In my view, the accused's responses to Mr Djokic show that the accused responded to Mr Bolas' approach by continuing to inflict blows on Mr Bolas with the meat cleaver and that he did so with the intention to kill him. That response was beyond what the accused believed to be necessary to defend himself. I am satisfied beyond reasonable doubt that the infliction of those blows was done with the intent to cause Mr Bolas' death.
117. As to Ms Tattersall, I am not prepared to find that there was a reasonable possibility that the accused perceived any threat from her. His evidence of the possible involvement of others did not include Ms Tattersall and, in any event, as I have previously observed, I do not regard the accused's evidence on this aspect as anything more than a construct after the event by which he now seeks to justify his actions.
118. In my view, there is nothing in any of the evidence from which I am prepared to conclude that it was reasonably possible that Ms Tattersall was a threat to the accused or was perceived by him to be so.
119. The blows that he struck Ms Tattersall were simply as a consequence of her being there at the time and not because of any threat that the accused believed she posed. I find the blows that he struck her with the meat cleaver were delivered with the intent to cause her death or, at least, with reckless indifference to the probability of causing her death.
120. It is also pertinent to observe that the forensic evidence, particularly that given by the forensic scientist, Ms Lee, would seem to place Ms Tattersall not only in the living room at the time of the attack, but also in the kitchen area. Indeed, the most severe blow that apparently severed her left common carotid artery was apparently inflicted when her head was on the ground, or close to it, and in the kitchen area.
121. I am satisfied beyond reasonable doubt that the accused inflicted the blows on Ms Tattersall with the intent to cause her death or with reckless indifference to the probability of causing her death.
122. I find the accused guilty in respect of counts 1 and 2 of the indictment.
I certify that the preceding one hundred and twenty-two (122) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.
Solicitor for the prosecution: ACT Director of Prosecutions
Counsel for the accused: Mr P S Hastings QC with Mr K Archer
Date of hearing: 5, 6, 7, 8, 11, 12, 15 October 2010
R
McDougall [2011] ACTSC 51
(1987) 162 CLR 645
(1978) 141 CLR 88
(1998) 197 CLR 316