R v McDougall [2011] ACTSC 51

R v McDougall [2011] ACTSC 51 - ACTSC 2011 case summary — Zoe

[13]

between about 8.20pm and 10.35pm at 4 Raine Place Downer ACT.
I knew Mr Struan Bolas and had socialised with him over a number of years. The extent of that contact varied from time to time. That contact would sometimes occur at his house.
After I returned to Queanbeyan in August 2008, I socialised with Mr Struan Bolas at 4 Raine Place on a number of occasions.
On 10 September 2008 between about 8.20pm and 10.35pm I was at 4 Raine Place Downer with Mr Struan Bolas and Ms Julie Veronica Franco also known as Julie Sarah Tattersall.
Between about 8.20pm and 10.35pm on 10 September 2008 I committed the acts that caused the death of Ms Julie Veronica Franco also known as Julie Sarah Tattersall.
Between about 8.20pm and 10.35pm on 10 September 2008 I committed the acts that caused the death of Mr Struan Bolas.
That in causing the deaths of Ms Julie Veronica Franco also known as Julie Sarah Tattersall and Mr Struan Bolas, I used a wooden handled meat cleaver. The meat cleaver found at the scene is the one that I used.
The deceased male located inside 4 Raine Place, Downer by members of the ACT fire brigade on 10 September 2008 was Mr Struan Bolas.
The deceased female located inside 4 Raine Place Downer by members of the ACT fire brigade on 10 September 2008 was Ms Julie Veronica Franco also known as Julie Sarah Tattersall.
On 10 September 2008 between about 8.20pm and 10.35pm I deliberately set fire to 4 Raine Place Downer intending to cause damage to that property and did so by:
1. placing paper in a toaster, which was situated on a bench in the kitchen of 4 Raine Place Downer, and switching the toaster on,
2. leaving paper on the hot plates of the electric stove in the kitchen and turning on those hotplates.
After I had deliberately set fire to 4 Raine Place Downer, I returned to 87 Uriarra Rd Queanbeyan, NSW.
I left 87 Uriarra Rd Queanbeyan at about 12.00am on 11 September 2008 in the white Ford Falcon, registration (ACT) YYB 663.
When I left those premises I took with me items of clothing and the boots I had been wearing at the time I committed the acts that caused the deaths of Mr Bolas and Ms Franco.
Some point after leaving 87 Uriarra Rd Queanbeyan I placed the boots and some of those items of clothing in a rubbish bin.
That the following items of clothing, which were located at the Mugga Lane tip, belong to me and had been worn by me when I was at 4 Raine Place Downer on 10 September 2008:

[42]

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.)

[63]

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.

[66]

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.

[169]

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.

[194]

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.

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