R v McKellar

Judgment 1On Monday 17 February 2014, the special hearing of three serious allegations made by the Crown against Shane Thomas McKellar (to whom I shall refer in these reasons for verdict as "the accused") commenced in the Supreme Court at Bathurst. Before that occurred, I had satisfied myself that the necessary preconditions contained in the Mental Health (Forensic Procedures) Act 1990 (NSW) for such a hearing being conducted had been fulfilled. I shall refer to that legislation as "the Act", and references to sections will be to those of the Act unless otherwise indicated. 2The special hearing was conducted by me as nearly as possible as if it were a trial of criminal proceedings: s 21(1). The accused was represented by senior counsel throughout the special hearing, in accordance with s 21(2). The special hearing was conducted in such a way that it was intelligible to any interested observer: R v Zvonaric [2001] NSWCCA 505; 54 NSWLR 1. No election for the proceedings to be conducted before a jury having been made by either party, the special hearing proceeded before me sitting as a judge alone: s 21A. 3A short time after the special hearing commenced, the accused voluntarily absented himself. After hearing submissions, I permitted the special hearing to continue in his absence, and have delivered a separate judgement in that regard: R v McKellar (No 2) [2014] NSWSC 105. Indictment 4At the commencement of the hearing, an indictment containing three counts was presented. The third count, including a statutory alternative that was relied upon by the Crown, was the subject of a verdict by direction by me at the end of the Crown case. Again, that is the subject of a separate judgement: R v McKellar (No 3) [2014] NSWSC 106. In the circumstances, there is no need for me to discuss that count further, although the evidence that was said to found that count remains before me and may require consideration. 5The remaining two counts were as follows. Count one alleged that, contrary to s 98 of the Crimes Act 1900 (NSW), the accused had, on 21 May 2011 at Bourke, whilst armed with an offensive weapon, robbed Bruce Wentworth Delany of the sum of $50, and immediately after doing so had inflicted grievous bodily harm upon the same person. For reasons that will become apparent, it is important to record that that offence carries a maximum penalty of imprisonment for 25 years. 6Count two alleged that, contrary to s 18 of the Crimes Act, on 23 May 2011 and in the same township, the accused murdered the same gentleman (to whom I shall refer throughout these reasons as "the deceased"). Fundamental legal principles 7I turn to discuss some fundamental principles applicable to the special hearing. 8It is incumbent upon me to return verdicts with regard to those two remaining counts. I am also required, not only by way of the common law with regard to criminal proceedings conducted before a judge alone (see Fleming v R [1998] HCA 68; 197 CLR 250) but also by way of s 21B(2), to set out the principles of law that I have applied, the findings of fact that I have made, and the process of the application of the law to those facts that underpin my verdicts. 9It is convenient at this stage to state three basic legal principles that I have borne firmly in mind in coming to my verdicts. 10The first is that the Crown bears the onus of proof. The accused need prove nothing. It is not a matter of the accused needing to establish his innocence; to the contrary, it is incumbent upon the Crown to prove his guilt. 11The second principle is that the Crown is required to do so beyond reasonable doubt. Proof to any lesser standard is insufficient. Suspicion, even the gravest suspicion, cannot, of course, be equated with proof beyond reasonable doubt. 12The third and final basic proposition is that it is not incumbent upon the Crown to prove beyond reasonable doubt every fact upon which it relies. Rather, it is incumbent upon the Crown to prove the essential elements of the two offences before me. It is convenient to set them out now. Elements of the offences 13As for count one, the Crown must prove beyond reasonable doubt that, on 21 May 2011, whilst armed with an offensive weapon, the accused robbed the deceased and immediately afterwards inflicted grievous bodily harm upon him. And the Crown must prove that, in doing so, the accused acted voluntarily. 14Analysing those elements in more depth for a moment, an offensive weapon is defined in s 4 of the Crimes Act as including "anything that is made or adapted for offensive purposes" or "anything that, in the circumstances, is used, intended for use or threatened to be used for offensive purposes, whether or not it is ordinarily used for offensive purposes or is capable of causing harm". 15Robbery may be defined as the stealing of property from the person of the victim or his or her immediate vicinity accompanied by the use of violence or the threat of violence. 16Stealing may be defined as the taking away of property of another person, without the consent of that person, with a dishonest state of mind, and with the intention of permanently depriving the owner of his or her property. 17Inflicting grievous bodily harm may be equated with causing really serious physical injury. 18It is not the case that it is an element of count one that the accused intended that grievous bodily harm would result: Ryan v R [1967] HCA 2; 121 CLR 205. 19Turning to the elements of count two, the Crown case had two bases. The first basis was what I call intentional murder, and the second was what I call constructive murder (also sometimes known as felony murder). 20The elements of the first basis of the Crown case for murder are that the accused; voluntarily; did an act; that caused the death of the deceased; and, at the time of doing that act; the accused intended: either to kill or to inflict grievous bodily harm. 21The elements of the second basis of the Crown case for murder are that the accused; voluntarily; did an act; that caused the death of the deceased; during or immediately after; the commission by the accused of a crime punishable by imprisonment for life or 25 years. 22The Crown submitted that count one, in light of the applicable maximum penalty to which I have referred, is able (if established beyond reasonable doubt) to fulfil the role of the foundational offence for constructive murder. 23With regard to constructive murder, I approach the matter on the basis that the act causing death need not be an "extra" act above and beyond the elements of the foundational offence. 24It can be seen with regard to count one and the two bases of count two that voluntariness is an essential element of each offence: see, with regard to constructive murder Penza and Di Maria v Regina [2013] NSWCCA 21. I approach the requirement of voluntariness as being of a willed movement of the muscles on the part of the accused, as opposed to, for example, a reflex action. 25I shall return to discuss some further legal principles shortly. At this stage of my reasons it is convenient to set out all of the evidence presented in the trial in general chronological form. None of the evidence was the subject of dispute by senior counsel for the accused, whether by way of cross-examination, or by calling of witnesses to the contrary, or by way of submissions. Chronological background of undisputed facts 26The deceased was born on 31 January 1930. Accordingly, on Saturday, 21 May 2011 he was aged 81 years. He resided at premises at 16 Becker Street, Bourke. His neighbour to the north was Ms Annette Wilson at 18 Becker Street. His neighbour to the south was Ms Karlene Potter at 16 Becker Street. To her south at 12 Becker Street lived Ms Patricia Grimes. On the other side of the road was 11A Becker Street. 27Between 2005 and 2009, the deceased was treated for various health issues. These included significant problems with regard to his heart, including the replacement of a valve. He also had a cancerous tumour successfully removed from his bowel. Dr Grassby, a surgeon, treated him with regard to the latter condition. 28In December 2010, the accused, an Aboriginal man then aged 32 years, met a young lady by the name of Ms Belita Wilson. The two of them were in the habit of spending time at the home of her aunt, Ms Annette Wilson, who, as I have said, lived next door to the deceased. During that month, the accused mentioned that he wished to break into the home of the deceased. Belita Wilson dissuaded him from doing so. 29Throughout the weeks leading up to 21 May 2011, the accused and Belita Wilson stayed at 18 Becker Street for a number of nights. They left their clothes there in a blue striped plastic bag. 30At 6:30 PM on Friday, 20 May 2011, Karlene Potter finished work. At about 7 PM she visited the deceased at his home, and found nothing out of the ordinary. Meanwhile at about 7 PM Ms Gloria Wilson, the mother of Belita Wilson, hosted a barbecue at her home at 1 Hamilton Place, Bourke. The accused and Belita Wilson attended that barbecue before sunset. At that time, the accused was wearing a green hooded jumper, green and gold shorts, and a yellow cap. 31On the same evening, Mr Warren Edwards attended a barbecue at 5 Harris Street, the home of his aunt Ms Gail Edwards. It seems that the accused visited that barbecue at some point, but stayed for only 10 to 15 minutes. 32At around 8 PM, Annette Wilson, who had been out for a drink, returned to her home at 18 Becker Street. Karlene Potter returned to her home at 14 Becker Street at 8:15 PM. At 9 PM Annette Wilson went to sleep. 33At 10 PM, Mr Victor Azzopardi arrived at his daughter's home in Darling Street, Bourke, and there decided that he and his son Mr Jimmy Smith would go hunting. They proceeded to do so. 34Gail Edwards went to bed at around midnight. When she did so, the accused and Belita Wilson were still at her home. 35At some stage before 1 AM on Saturday 21 May 2011, Annette Wilson was woken by Belita Wilson and the accused, who had come to her house wanting to retrieve their bags. They stayed for 15 minutes, and then left. Annette Wilson locked the door behind them. In the event, they did not take their bags with them. 36In the early hours of the morning of 21 May 2011, the accused and Belita Wilson went walking all over town. They were searching for prohibited drugs that they could purchase and use. Belita Wilson bought some drugs. According to her, the accused possessed no money. 37At about 4 AM, Victor Azzopardi returned from his hunting trip to the home of his daughter in Darling Street. There he saw Belita Wilson and the accused. The accused had a lighter, a spoon, and syringes. In the presence of Victor Azzopardi, the accused injected Belita Wilson with some form of drug. According to Belita Wilson, the accused also used drugs intravenously, perhaps a morphine tablet that had been crushed and dissolved. Victor Azzopardi formed the opinion that the accused was affected by a prohibited drug, because he was talking a great deal and not making sense. 38According to Victor Azzopardi, Belita Wilson left the premises at Darling Street, and she was followed later by the accused. 39According to Belita Wilson, she and the accused parted at around sunrise at the corner of Short Street and Tarcoon Street, Bourke. When Belita Wilson last saw the accused, he was heading up a laneway towards Becker Street. At the time, the accused was wearing a green hooded jumper with a black print on the front and grey tracksuit pants. The two had arranged to meet later that day at the home of the mother of Belita Wilson. 40At 6 AM, Karlene Potter awoke and made herself a coffee. At about 6:30 AM, Karlene Potter saw the deceased let her dog out of her yard, which was in accordance with his usual practice. The deceased was wearing navy blue or black track pants, a vest, and a cardigan. 41Meanwhile, back at her home at 1 Hamilton Place, Gloria Wilson woke up and assumed that Belita Wilson and the accused had left. 42At some indeterminate time that morning, Annette Wilson left 18 Becker Street and went to visit Gloria Wilson at 1 Hamilton Place. 43Again at an indeterminate time, a young boy to whom it is convenient to refer as CO woke up at the home of his grandmother at 90 Darling Street, had breakfast, kicked a ball around, and had a shower. 44At about 9:25 AM, Karlene Potter saw the deceased return her dog to her yard. Very shortly after that, Karlene Potter noticed her dog barking and trying to jump the fence. Karlene Potter became concerned about the welfare of the deceased. 45The deceased made his way from his home at 16 Becker Street to the home of Karlene Potter at 14 Becker Street. Whilst at the front door he yelled out to her "[O]pen the door". When she did so, Karlene Potter saw the deceased with his back to her, leaning on the railing, holding his stomach with one hand. 46The deceased said "He's in there, he's in there. He said he was going to kill me". Karlene Potter asked "Who?" The deceased replied, "The bloke, he's in there". Karlene Potter moved as if to go over to 16 Becker Street, and the deceased said "No, no, come back, he's still in there. He stabbed me. I gave him $50 and the bloke said 'I don't care, I am still going to kill you.' He had a knife, it was that big." The deceased used his hands to indicate a distance of approximately 13 inches. The deceased then said "It was a skinny knife and had a pointy blade. I was pulling his hair. Ring the ambulance". 47Karlene Potter called the police station at Bourke and requested the urgent attendance of police and ambulance. She did what she could to assist the deceased and make him comfortable. She also called out to her neighbour Patricia Grimes "Pussy, someone broke in and stabbed Rooster and they're still in his house." 48Patricia Grimes and her daughter came over and assisted Karlene Potter with the treatment of the deceased. Patricia Grimes heard the deceased say "Someone broke into my house and stabbed me and he's still there. He's got a knife and a golf stick". 49A little later, Karlene Potter asked the deceased "Who was in there?" and the deceased replied "He had long hair, dark sunglasses on, late 20s and thin framed". 50Meanwhile CO was walking down the street with some friends. They were kicking a ball around on the way to the park. CO saw a man on the "other side of the fence" between 16 and 18 Becker Street; that is, in the backyard of 18 Becker Street. He observed that the man had long hair and was wearing a blue and yellow hat. 51At around the same time, a young boy to whom it is convenient to refer as DJ was standing in the driveway of 11A Becker Street (virtually opposite 16 Becker Street), and saw a man jump the fence. According to DJ, that man was wearing black clothes, a blue and yellow hat, black gloves and running shoes, and was holding a "pointy" knife and a golf stick. The man said to DJ "Don't look". 52The young boy CO saw a number of women attending to the deceased on the front balcony of 14 Becker Street. CO overheard one of the women say that the assailant had possessed "a knife and a golf stick". 53At about 9:30 AM, the accused came through the back door of 5 Harris Street, Bourke. He was panting as if he had been running, and seemed to be nervous. He was seen by Gail Edwards. She asked him "What the fuck is you coming in here for, are you running from the police?" He replied in the affirmative. The accused at that stage was wearing a shirt, track pants, and a grey zip-up hooded jumper. 54At the same premises, Warren Edwards awoke to find the accused standing by his bed. The accused said to Warren Edwards "Run me down here". When Warren Edwards declined and said that he had no petrol, the accused said "Yeah I got money for petrol", and thereafter Warren Edwards agreed. According to Warren Edwards, the accused was agitated and was wearing black trousers and a black top and a hat or beanie. The accused and Warren Edwards got into the motor vehicle of Warren Edwards. 55Warren Edwards drove the accused and another man up Harris Street. The accused requested that Warren Edwards take an alternative route. Eventually, Warren Edwards dropped the accused off at the home of Ms Alison Smith. 56At about 9:40 AM, uniformed police attended 14 Becker Street. They immediately assisted in the care of the deceased. The police entered 16 Becker Street and found that no one was present. They did note that some drawers were opened and a yellow handled screwdriver was lying on the floor. 57Meanwhile ambulance officers had arrived and were attending to the deceased at 14 Becker Street. In the presence of Mr Kern, the ambulance officer, the deceased was asked who had stabbed him, and he replied "It was an Aboriginal male in his 20s with long hair and dark glasses. I don't know who he was." 58Whilst he was being wheeled to the ambulance, Patricia Grimes heard the deceased say "He's Aboriginal, he's twentyish, he's got long hair because I grabbed him by the hair and got a handful." 59The deceased was transported to Bourke District Hospital by way of ambulance and passed into the care of Dr Robb. Thereafter enquiries were made about his urgent transfer to Royal Prince Alfred Hospital in Sydney or Dubbo Base Hospital. The medical condition of the deceased fluctuated. 60At about 10 AM, uniformed police were seeking to enter 18 Becker Street, as against the possibility that the person who had stabbed the deceased was present in those premises. A uniformed police officer went to the rear of 18 Becker Street and found the door was locked, contrary to the expectation of Annette Wilson. Annette Wilson told that officer that there should be no one in her home. 61Two uniformed police entered the house, and immediately saw a golf club and a plastic mask with long hair attached to it in the lounge room. They also saw that the manhole cover was open in the laundry. 62At Bourke District Hospital, Dr Robb examined the deceased. He noted that the deceased had a laceration in the vicinity of his right ear, an injury to his left ear, a small wound to the lower part of his breastbone, and three wounds to his abdomen that featured dried and oozing blood. There were no wounds to the back of the deceased. The deceased denied that he had been hit with any implement such as a golf club, and no injuries were observed to his head or scalp. 63At 10:20 AM, two more police officers entered 18 Becker Street. They observed that the kitchen window on the north side of the home was open. 64At 11:30 AM, Senior Constable Campbell spoke with the deceased in the emergency department of Bourke Hospital. The deceased told Senior Constable Campbell that a man followed him inside his house through the back door and asked him for money. The deceased said that "He would be in his twenties, reasonably thin build and long hair, he had a golf club and a knife". The deceased gave him $50 but "he wanted more, and then he told me he [was] going to kill me, and then he started to stab me". The deceased also said that while they "wrestled about" he had grabbed a handful of the assailant's hair, and that after he ran next door the assailant stayed in the house. 65At 3:15 PM, the deceased arrived by way of the Royal Flying Doctor Service at Dubbo Base Hospital. He was immediately transferred into the care of Dr Grassby and taken to the operating theatre. 66At 3:30 PM, Detective Senior Constable Kremers, a crime scene officer, attended the premises of 14, 16, and 18 Becker Street. He took a large number of photographs and prepared captions for them. 67With regard to 16 Becker Street, he saw in the dining room a large number of red stains that tested positive to presumptive tests for blood. He observed a large hole in the gyprock wall, with pieces of gyprock on the floor, suggestive of it having been recently created. He saw and collected a number of hair fibres from the floor. He saw that the drawers of a side table were open and their contents disturbed. He saw what he believed to be passive drops of blood on the chest freezer. He observed that a chair was upturned on the floor. He saw a metal bracket, with one end wrapped in blue material. He could not locate any fingerprints of significance in the premises. 68He examined the bedrooms of the home. In the master bedroom he saw that the wardrobe doors and drawers had been opened. He also saw an open packet of screwdrivers on the floor. In the laundry, he located a length of rope and a golf club at the entrance to the rear yard. At the end of a ramp leading from the rear doorway into the backyard, he located a small pair of scissors, the handles of which were wrapped in blue material that was very similar to the material in which the bracket had been wrapped. He also located a $50 note at the bottom of the ramp. 69Detective Senior Constable Kremers took various samples from 16 Becker Street, and made various markings. 70At 14 Becker Street, he observed a number of bloodstains on the concrete path leading to the front door. He also located a jacket of the deceased in that location. He did not enter those premises. 71In the rear yard of 18 Becker Street, Detective Senior Constable Kremers located three bags of clothes. Wrapped up under the house were sundry items of clothing and two mobile phones. Also located under the house were four pieces of blue coloured material that were very similar to the material that was around the bracket and the handles of the scissors located at 16 Becker Street. 72In the lounge room of 18 Becker Street, Detective Senior Constable Kremers located a latex mask with long hair attached to it on the lounge. He also located a golf club behind the lounge chair that had red stains on its shaft and a white, chalky substance on its head. 73In bedroom three Detective Senior Constable Kremers located a hole in the gyprock that created a cavity. Located in the wall cavity were some used syringes and spoons, and a large double-bladed knife wrapped in a red and white tea towel. Another golf club was also found in bedroom three. 74In the laundry, the crime scene officer observed that tiles had been removed from the wall above the sink, leaving a cavity that exposed the rear of the taps. 75The officer took a number of items from 18 Becker Street and left the premises. 76At about 5:50 PM, the deceased was transferred to the Intensive Care Unit at Dubbo Base Hospital, his surgery having been completed. He remained intubated, paralysed and ventilated, and his condition appeared stable. 77Some time later in the day, the accused asked Victor Azzopardi to drive him from Bourke to Narromine, a not inconsiderable distance. He agreed to do so. Victor Azzopardi dropped Jimmy Smith and the accused off at a stock yard whilst he went to purchase petrol, using $100 cash that he had been given by the accused. When Victor Azzopardi returned to pick up the accused and Mr Smith, the accused said "Let's get out of here quick". 78Whilst the three men were driving towards Nyngan, the accused said "I stole all the money and I stabbed the old man, I'm in big shit." Victor Azzopardi asked "How many times did you stab him?" to which the accused replied "Will you go witness for me, tell them I didn't do it?" Victor Azzopardi replied in the affirmative in an attempt to pacify the accused. Throughout the drive the accused repeatedly spoke about the fact that he had "stabbed the man and taken the money", asked Jimmy Smith and Victor Azzopardi to "go witness" for him and "tell them I didn't do it", and encouraged Victor Azzopardi to drive faster as he wanted to "get away". 79By 11:38 PM, the vehicle driven by Victor Azzopardi with his two passengers had arrived in Narromine. It was observed by uniformed police, who stopped it for a random breath test. The police observed that the accused, who was sitting in the back seat, was moving around as if trying to conceal an object. When the police sought to stop the car, the accused said to Victor Azzopardi "Go Vic put your foot down". 80When the police approached the car and spoke to the occupants, the accused gave a false name. It was found that the person whose name the accused had given had breached a bail curfew, and as a result the accused was arrested and taken to Narromine Police Station. At that location the accused was found to have a very large amount of cash in his wallet. In due course the accused gave the police his correct name, and his identity was confirmed as Shane Thomas McKellar. 81In the early hours of Sunday 22 May 2011, the police officer who had arrested the accused was informed that he should be detained with regard to an allegation of a serious assault. Meanwhile the money located in the possession of the accused was counted at Narromine Police Station and found to total $6057.80. 82To be clear, the learned Crown Prosecutor at the commencement of the special hearing explicitly disavowed any submission that that sum had been the subject matter of the robbery of the deceased or a stealing from 16 Becker Street. 83At 2:15 AM detectives arrived from Dubbo. A detective noticed a bruise above the left eye of the accused. It was decided that the accused was intoxicated by some substance and should not be interviewed at that stage. 84At 4:28 AM, the accused engaged in a recorded interview. He told the police that he had spent the night of Friday 20 May 2011 at his uncle's farm just outside of Bourke. He also told them that on the Saturday morning he had gone fishing close to the property of his uncle, and spent some time gardening there before walking to the home of Victor Azzopardi just before 4 PM so that he, Victor Azzopardi and Jimmy Smith could drive to Orange to assist the sister of the accused to move her belongings back to Bourke. The accused told police that he did not see or speak to anyone, and was not seen by anyone, on the Friday night or on the Saturday before he left to meet Victor Azzopardi. 85At 5:51 AM that interview concluded. At the end of the interview, a detective noted what appeared to him to be red stains on the shoes being worn by the accused. The accused claimed that the stains were actually "egg". 86At about 4 AM on Monday, 23 May 2011, the blood pressure of the deceased collapsed without warning. It was determined that that was probably the result of sepsis or a serious heart problem. Dr Grassby spoke with the family of the deceased and it was agreed that there should be no further surgical intervention. Tragically, at 9:05 AM on Monday, 23 May 2011, the deceased passed away. 87Subsequently, the police conducted further investigations, including examination of items seized from various premises at Becker Street. Police also returned to the premises at 18 Becker Street. Further items, including a green hooded jacket from bedroom two, and blue material from under the house, were taken back to Bourke Police Station. 88On Tuesday, 24 May, Annette Wilson returned to her home at 18 Becker Street and went through it room by room with two detectives. She noticed that a number of electrical items were missing from her home. She was also shown a photograph of the knife that had been previously seized from the wall cavity with a tea towel wrapped around its handle, and she identified the tea towel as belonging to her. On the same occasion, police located in the wall cavity behind the taps in the laundry a pair of canvas gloves that featured a large number of red stains to their exterior. 89On Wednesday, 25 May 2011, the autopsy with regard to the body of the deceased was conducted by Dr Cala. Dr Cala provides in his autopsy report details of the wounds that I have already described, along with wounds on the left index finger and right elbow of the deceased that Dr Cala considered could have been "defence-type" injuries. 90Dr Cala, whilst noting that the deceased (as one might expect in light of his age) had a number of health issues, found that, other than the injuries to which I have referred, the body of the deceased was generally unremarkable. 91Dr Cala also expressed the opinion that there was no deficiency in the medical treatment of the deceased. 92Dr Cala expressed the opinion that the direct cause of the death of the deceased was multiple stab wounds. He noted that the three wounds to the abdomen were between 17mm and 20mm wide. He also expressed the opinion that the most serious of the wounds had a depth of approximately 12 cm. 93Finally, he expressed the opinion that the knife seized from 18 Becker Street could have inflicted the injuries to the body of the deceased. 94On the morning of 1 June 2011, the accused was taken from Bathurst Gaol to Bathurst Police Station for the purpose of an interview. There he was spoken to by a detective and said "I hadn't even got to Narromine yet and people were ringing and causing trouble for me. I don't even know what you are talking about". Thereafter, on legal advice, the accused exercised his right to silence. Although the accused did not consent to various forensics samples been taken, eventually a buccal swab and hair samples were taken from him. 95On 27 October 2011, a certificate was prepared with regard to the results of DNA testing of a large number of items seized from various premises at Becker Street, a sample from the deceased, and the sample from the accused. 96To state those results with great succinctness, the latex mask found in 18 Becker Street had bloodstains at two locations that were statistically extremely likely to have come from the deceased. 97The blades of the scissors found at the back of 16 Becker Street possessed DNA that was statistically extremely likely to have come from the accused. So did the blue material wrapped around the right handle of the scissors. 98The left shoe of the accused was found to have a stain that was positive to a presumptive test for blood. That stain contained DNA that was statistically extremely likely to have come from the accused and the deceased. 99The right shoe of the deceased had a stain that was positive to a presumptive test for blood, and was found to be statistically extremely likely to contain DNA that came from the deceased. 100A swab from the golf club handle located in the lounge room in 18 Becker Street contained DNA that was statistically extremely likely to have come from the deceased and the accused. The stain on the shaft of the same club reacted positively to a screening test for blood and was statistically extremely likely to contain DNA from the deceased. 101All of the hair located at 16 Becker Street was statistically extremely likely to have come from the head of the accused. 102Blood drops located at the front of 16 Becker Street were statistically extremely likely to have come from the deceased. 103As for the pair of gloves located in the wall cavity in the laundry of 18 Becker Street, the left glove on its inside cuff revealed DNA that was statistically extremely likely to have come from the accused. A stain on the outside of that item reacted positively to a screening test for blood, and contained DNA that was statistically extremely likely to have come from the deceased. 104As for the right glove, the inside cuff of that item contained DNA that was statistically extremely likely to have come from the accused. A stain on the outside of the back of that item reacted positively to a screening test for blood, and was statistically extremely likely to have included DNA from the deceased. 105The green hooded jumper that was located in a bedroom inside 18 Becker Street, and which, according to the evidence of Belita Wilson in the witness box, was the jumper that she had seen the accused wearing in the early hours of Saturday, 21 May 2011, was found to have DNA that was statistically extremely likely to have come from the accused on its inside left cuff and on the interior of the back of the neck. It was also found to have two stains, each of which reacted positively to a presumptive test for blood, and each of which was statistically extremely likely to contain DNA from the deceased. 106As for the tea towel that had been wrapped around the knife that was secreted in 18 Becker Street, it was found to have DNA that was statistically extremely likely to have come from the accused. 107As for the knife itself, its handle was found to contain DNA that was statistically extremely likely to have come from the accused. Two stains that were located on the blade of that knife each contained DNA material that was statistically extremely likely to have come from the deceased. 108That completes my chronological review of the evidence. It is convenient now to turn to the submissions of the parties. Submissions 109It is worth noting immediately that senior counsel for the accused did not submit that I should not be satisfied beyond reasonable doubt of the commission of the offences averred in count one and count two. However, with regard to the count of murder, she submitted that I would not be satisfied beyond reasonable doubt that the accused possessed an intention to kill or inflict really serious physical injury. Rather, she submitted that I should be satisfied that murder had been proven by way of the doctrine of constructive murder. I shall return to that submission later. 110The Crown Prosecutor commenced his address by reminding me of the four verdicts that are available in a special hearing; namely, not guilty; the special verdict of not guilty on the grounds of mental illness; that on the limited evidence available, the accused committed the offence charged; and finally that on the limited evidence available, the accused person committed an available alternative offence with regard to the offence charged: s 22(1). 111He submitted that there was no evidence in the trial that could found a special verdict of not guilty on the grounds of mental illness. He also disavowed any reliance upon an alternative verdict with regard to either count. In particular, he submitted that an alternative verdict of manslaughter had no role to play with regard to count two. 112He submitted that, even if I were to confine myself only to the evidence of what the deceased said to a number of persons before he died, I would be satisfied to the criminal standard that the deceased had been robbed of $50 by way of the presentation of a knife, and that that $50 had been taken from the inside of the home to the backyard. He also submitted that I would accept without difficulty that it was the robber who inflicted the wounds to the body of the deceased, and that those wounds constitute grievous bodily harm. 113With regard to count two, he submitted that I would have no difficulty in finding that the act of stabbing the deceased caused his death, founded upon all of the medical evidence to which I have referred, and in particular the opinion of Dr Cala. 114The Crown Prosecutor also submitted that a large number of factors would lead me to the view that the assailant possessed one or other of the necessary intentions for murder. 115First, the words that were uttered to the deceased. 116Secondly, the fact that those words were said whilst the assailant was armed with a knife. 117Thirdly, the fact that the weapon was capable of inflicting death without difficulty, in light of the length of its blade, the fact that it was double-edged, and the fact that it was pointed. 118Fourthly, the number, location, and depth of the wounds, and in particular the location of the three major wounds, in that they were all to the abdomen, a well-known location of vital organs. 119Fifthly and finally, the fact that the victim was an elderly man. 120In short, founded upon the total number of injuries; the fact that there were four stabbings to the torso of the deceased, three of which entered his body to a substantial degree; and the fact that one of those wounds penetrated the body of the deceased to a depth of at least 10 cm; combined with the expressed intention of the assailant to kill the deceased, he submitted that I would have no difficulty in inferring that the assailant possessed, at the very least, an intention to inflict grievous bodily harm. 121He submitted that, if I were to come to that view, there would be no need for me to undertake an analysis of the alternative basis of the Crown case. 122The Crown Prosecutor submitted that the real issue in the special hearing is whether it was the accused who robbed, stabbed, and murdered the deceased. 123In that regard he submitted that the overwhelming inference is that the knife found secreted in 18 Becker Street was the murder weapon. It is highly significant that on its handle was, he submitted, the DNA of the accused, and on its blade a stain that I would safely infer was the blood of the deceased. 124He accepted that there was no evidence whereby, for example, the deceased directly identified his assailant as the accused, or some eyewitness who had seen the accused stabbing the deceased did so. He explained that the Crown case that the accused was the assailant really has five bases. 125The first is admissions. He submitted that the uncontradicted evidence is that, whilst being driven away from Bourke and towards Narromine, the accused repeatedly made admissions that could only be reflective of guilt of this offence. Furthermore, the accused said things to Gail Edwards that were suggestive that he had committed a serious crime. 126The second is the presence of the accused at the vicinity of the scene of the crime. The Crown Prosecutor reminded me of the evidence of Belita Wilson that, when she last saw him sometime after dawn on Saturday, 21 May 2011, the accused was not far from Becker Street, and was walking in its general direction. 127The third basis of the Crown case is the scientific evidence. He submitted that I would infer without difficulty that the blood of the deceased was on the left shoe and the right shoe worn by the accused when he was arrested. He submitted that I would also infer without hesitation that the hair located on the floor of the home of the deceased had been pulled from the head of the accused by the deceased whilst they were struggling, just as the deceased said he had done to more than one person before he passed away. 128He submitted that I would find that the stain on the shaft of the golf club found in the lounge room of 18 Becker Street was the blood of the deceased. 129He submitted that it is no accident that no relevant fingerprints were found at the scene of the crime, because the assailant was wearing gloves. He reminded me that the young boy DJ, who saw the man jump the fence, described him as wearing gloves, albeit black ones. He submitted that it was highly significant that those gloves bore a DNA profile identical to that of the accused, and also what I would find to be the blood of the deceased. 130Finally, the learned Crown Prosecutor took me to the evidence about the green hooded jumper; namely, that Belita Wilson identified it as the item of clothing worn by the accused that morning; that it was located in the premises to which the accused had access and in which he stored his clothing; and that it possessed what I would find to be bloodstains from the body of the deceased. 131The fourth basis is that I would find that the accused had undertaken a number of acts with consciousness of guilt. He submitted that they included the telling of lies and fleeing from Bourke. 132He submitted that, when the accused was interviewed, he provided a false alibi when he said that he remained on a farm throughout the entirety of the Friday evening and the Saturday morning. He submitted that the uncontradicted evidence was that, in truth, the accused was at social events in Bourke on the Friday evening, and roaming the streets of that township early on Saturday morning in search of prohibited drugs. 133He also submitted that it is clear that the accused took urgent steps to get out of Bourke very soon after the attack had taken place. 134Finally, he reminded me of the fact that, when the police approached the vehicle in Narromine, they noticed that the accused appeared to be seeking to conceal something, and also at first gave a false name. 135Whilst he accepted that great caution should be adopted by a tribunal of fact in using acts that are said to be done with a consciousness of guilt, and in particular lies, in support of a Crown case, nevertheless he submitted that I could safely do so in the circumstances of this case. 136The fifth basis of the Crown case was a number of disparate circumstances. The Crown Prosecutor reminded me that there was evidence that the accused spent a number of nights at 18 Becker Street in the weeks leading up to the date of the offence. It was in that very home, he submitted, that the mask, the golf club, and the knife that was the murder weapon were located. 137He submitted that the accused, several months before, had expressed to Belita Wilson an interest in committing an offence at 16 Becker Street. 138He reminded me that, on the morning, 18 Becker Street was secured, and it was not as if countless people were coming and going from those premises at the crucial time. 139Finally, he submitted that the evidence of the intravenous drug use of the accused provided a motive for the commission of the offence and by no means derogated from the proposition that the necessary mental elements of the two counts were made out. Indeed, he submitted that the use of the mask, the gloves, and the wrapping of the handles of the scissors and the knife with material (presumably in an attempt to limit inculpatory scientific evidence) was suggestive of a substantial degree of planning. 140Turning to the submissions of senior counsel for the accused, as I have said, she did not dispute that it would be open to me to be satisfied beyond reasonable doubt of all of the elements of counts one and two. But she resisted the proposition that, with regard to count two, an intention to kill or inflict grievous bodily harm had been established beyond reasonable doubt. 141She submitted that it was clear that the wounds were inflicted to the deceased in the course of a struggle. She based that submission not only on the findings at the home of the deceased, but also upon the things that the deceased himself had said to various persons before he died. She submitted that, if that were the case, I could not be satisfied beyond reasonable doubt of either of those intentions on the part of the accused. In other words, she submitted that it is a reasonable possibility that the wounds, including the fatal wounds, were inflicted to the person of the deceased in an attempt merely to escape, rather than with any settled intention as to the infliction of injury. Further relevant legal principles 142I turn now to outline the further legal principles that I have applied in my consideration of my verdicts. 143First, the fact that the accused gave no evidence in the special hearing, called no witnesses, and exercised his right to silence at the Bathurst Police Station on 1 June 2011 has no effect on the fundamental proposition that the Crown must prove each and every essential element of the counts beyond reasonable doubt. In other words, I have not used the fact that the accused did not give evidence, did not call witnesses, and exercised his right to silence with the police against him in the slightest: Azzopardi v The Queen [2001] HCA 25; 205 CLR 50; RPS v The Queen [2000] HCA 3; 199 CLR 620. 144Secondly, I have reminded myself that, to the extent that the evidence of the two young boys was given by way of a recorded interview, I should not draw any adverse inference against the accused from that fact. Nor should I give the evidence any greater or lesser weight simply because it was given by way of that mechanism: Criminal Procedure Act 1986 (NSW), s 306X. 145Thirdly, with regard to expert evidence, it is noteworthy that none of it was disputed. Still and all, it remained a matter for me to undertake my own analysis and assessment of the expert opinion evidence in my role as the tribunal of fact. 146Fourthly, I record for completeness that neither party submitted that I should give myself a warning (as it were) with regard to the hearsay evidence (chiefly, the things said by the deceased to various persons about what had occurred in his home that morning) and the evidence of admissions by the accused (chiefly, the things alleged to have been said by the accused to Victor Azzopardi) founded upon s 165 of the Evidence Act 1995 (NSW). The mandatory precondition of a request from a party not having been fulfilled, I have not given myself those warnings. 147Fifthly, the Crown Prosecutor submitted that this was not a circumstantial case, at least to the extent that there was direct evidence in that the accused was alleged to have explicitly confessed to having attacked the deceased when he spoke to Victor Azzopardi. Nevertheless, I considered that, to the extent that this Crown case is founded on a number of pieces of evidence from disparate sources, it was appropriate to remind myself that I do not need to be satisfied beyond reasonable doubt about any particular fact before I take it into account in my assessment of the Crown case as a whole. Rather, I have considered all of the evidence together and assessed it as a whole, rather than a collection of small parts. It is the elements of the offence about which I must be satisfied beyond reasonable doubt, not the particular pieces of evidence that are said to demonstrate their proof: Shepherd v The Queen [1990] HCA 56, 170 CLR 573. 148Sixthly, before I could deliver a verdict of guilty with regard to either count, I must pause to consider whether there is any rational hypothesis consistent with innocence. It would only be if I could reject the proposition beyond reasonable doubt that there was any such hypothesis that I could return a verdict of guilty. 149Seventhly, as for acts allegedly done in consciousness of guilt, I have reminded myself to approach them with great caution. In particular, with regard to alleged lies, I would need to find a number of things established. First, that the accused did indeed say those words. Secondly, that the statement was objectively untrue. Thirdly, that it was deliberately untrue. Fourthly, that it related to a material issue in this special hearing. Fifthly, that it was told because the accused realised that the truth could reveal his guilt of the particular crimes of armed robbery with the infliction of grievous bodily harm and resultant murder. Sixthly and finally, that the statement has been clearly shown to be a lie by other evidence: Edwards v The Queen [1993] HCA 63; 178 CLR 193; R v Lane [2011] NSWCCA 157 at [56] - [61] of the judgement of Simpson J with whom Howie AJ agreed. 150I have also reminded myself that people can lie for many reasons, not just because they are guilty of a crime, and I reminded myself that a lie told in consciousness of guilt can by no means prove guilt on its own, and that any such conduct simply becomes part of the circumstantial case of the Crown. 151I have adopted an analogous approach to acts other than lies alleged to evidence consciousness of guilt on the part of the accused: R v Cook [2004] NSWCCA 52. Determination 152Finally, I turn to the application of the legal principles to which I have referred to the evidence placed before me, leading to my determination and verdicts. 153I respectfully accept the submission that there is no evidence before me in the special hearing that could lead me to return a special verdict of not guilty on the grounds of mental illness with regard to either count. Accordingly, that verdict need not be discussed further. 154I consider that the evidence is thoroughly overwhelming that it was the accused who robbed the deceased, stabbed him, gravely injured him, and caused his death. 155To my mind, the scientific evidence demonstrates that the items found in 18 Becker Street were the items used to effect the offences in the premises next door. I readily accept the inference that the DNA profiles consistent with those of the accused and the deceased found on the various items were there not because of some extraordinary statistical coincidence, but rather because DNA material from the accused and the deceased was indeed on those items. 156The scientific evidence is compelling that, at the time of the offence, the green hooded jumper was being worn by the accused, and, at that time, blood of the deceased spattered onto it. So is the evidence that the knife secreted in 18 Becker Street was used to inflict the injuries upon the deceased, and that it was being wielded by the accused. And so is the fact that, when arrested a little over 12 hours after the robbery, the accused was wearing shoes that bore the blood of the deceased upon them. 157Turning to other circumstances, I consider it important that, about six months before the commission of the offences, the accused had mentioned to Belita Wilson the possibility of committing an offence at 16 Becker Street. I also consider it of some significance that the accused was last seen heading in the general direction of the scene of the crime on the morning in question. 158The undisputed admissions made to Victor Azzopardi to my mind admit of no other interpretation than a confession that the accused had robbed and stabbed the deceased on the morning in question. 159As for matters alleged to demonstrate consciousness of guilt, I am not satisfied that the giving of a false name to the police at Narromine provides such evidence. I adopt the same approach with regard to the movements of the accused in the rear of the vehicle of Victor Azzopardi. To my mind, it is quite possible that those actions were derived from the possession by the accused of a large amount of cash in highly suspicious circumstances. And as I have indicated, it is no part of the Crown case that that cash was the fruits of the robbery. 160Nor do I use the alleged lies about the whereabouts of the accused on the Friday evening and throughout the Saturday as evidence of consciousness of guilt. That is so for the following reasons. 161It is the case that there was no cross-examination by senior counsel for the accused of the witnesses who gave evidence to the contrary. And I accept that, if this had been a criminal trial in which senior counsel for the accused was fully instructed, one may have inferred that that was an implicit concession that the accused had put forward a false alibi. 162But in this special hearing, senior counsel for the accused made it clear that she had no instructions from the accused with regard to the allegation. It follows that one cannot necessarily infer from the absence of cross-examination of the witnesses who gave evidence that the accused was in Bourke at those times that that proposition is necessarily established. In other words, there may be a danger in proceeding on the basis that the things said by the accused in his recorded interview about his whereabouts are proven lies for the purpose of consciousness of guilt reasoning. In short, for abundant caution arising from the nature of these proceedings, I put those matters to one side. 163I consider it well open to infer, however, that the accused left Bourke hurriedly due to his consciousness of guilt of the robbery of the deceased, and I use that evidence of flight as part of the circumstantial case against him. 164Finally, I accept the evidence that the accused was a penniless intravenous drug user, at least in the early hours of 21 May 2011, and I accept that that state of affairs may well have provided him with a motive to commit a violent assault and robbery in search of money to fund his own use of prohibited drugs. 165In short, founded upon the scientific evidence; the connection between the accused and the premises at which the weapon and other instruments of the crime were located; the admissions of the accused; the flight of the accused; his expressed interest in committing a crime at 16 Becker Street; and his motive for committing a crime founded on obtaining cash, I am satisfied beyond reasonable doubt that the accused robbed the deceased of $50 at knifepoint and carried it from the inside of the home to the backyard. I am also satisfied beyond reasonable doubt that, after the cash was handed over, the accused used a knife to inflict grievous bodily harm upon the deceased. I am satisfied that all of that conduct was the result of voluntary acts on the part of the accused. It follows that I shall return a verdict with regard to count one that, on the limited evidence available, the accused committed the offence charged. 166As for the count of murder, I readily accept that it was the stab wounds to the person of the deceased that caused his death. The simple fact is that, although elderly and suffering from various medical conditions, the deceased was alive and well before he was stabbed on the morning of 21 May 2011. Two days later he was dead. 167As for the intention with which the accused stabbed the deceased, I have reflected on that at some length. However, founded upon the expression of an intention to kill immediately before the stabbing; the weapon used; the number of injuries to the person of the deceased as a whole; the location of the three serious injuries in the vicinity of vital organs; and most importantly the depth of one of those injuries, I have come to the position of being affirmatively satisfied beyond reasonable doubt that, at the time of the acts causing death, the accused intended, at the least, to inflict grievous bodily harm upon this 81-year-old man. I have come to that view even accepting that those injuries may well have been caused in the course of a struggle, and that the accused may have been affected to some degree by prohibited drugs or other substances. 168It follows that I am satisfied of all of the elements of murder founded upon the first basis of the Crown case. In accordance with the position of the parties, I shall not proceed to analyse, as an ancillary matter, whether I would also have been satisfied of proof of murder by way of the doctrine of constructive murder. 169In short, with regard to the count of murder I shall return a verdict that, on the limited evidence available, the accused committed the offence charged. 170I shall now deliver my verdicts. Verdicts 171With regard to count one, namely the allegation that on 21 May 2011 at Bourke in the State of New South Wales, Shane Thomas McKellar, being armed with an offensive weapon, namely a 35 cm knife, robbed Bruce Wentworth Delany of a 50 dollar note in Australian currency, the property of Bruce Wentworth Delany, and that Shane Thomas McKellar immediately after that robbery inflicted grievous bodily harm upon Bruce Wentworth Delany, I return a verdict that, on the limited evidence available, the accused committed the offence charged. 172With regard to count two, namely the allegation that on 23 May 2011 at Bourke in the State of New South Wales, Shane Thomas McKellar did murder Bruce Wentworth Delany, I return a verdict that, on the limited evidence available, the accused committed the offence charged.