R v Reay

R v Reay - [2021] NSWSC 311 - NSWSC 2021 case summary — Zoe

[14]

Defence tendency evidence

The accused relied upon tendency evidence in relation to the deceased as a matter supporting his case that Mr Fardell was the initial aggressor in the event that led to his death.
The tendency was stated to be that the deceased "had a tendency to commit acts or threats of unprovoked violence towards persons". The accused relied upon 10 episodes of actual or threatened violence by Mr Fardell to establish this tendency.
One episode was in 1995, seven were in 2004-2009 and the last two were on 17 and 22 March 2019.
Each of the incidents in 1995 and 2004-2009 involved a relatively low level of violence or threatened violence. Some episodes involved pushing and or punching a parent in the context of an argument about money or his drug use. Some incidents involved aggression towards a stranger. There are indications in some that poor mental health was a factor as well as substance abuse. Seven of these eight incidents were dealt with by way of a fine or a bond, action taken under the Mental Health Act 2007 (NSW) or no action being taken at all. The eighth and most serious matter occurred in 2007 and involved Mr Fardell threatening two transit officers at a railway station in Brisbane with a blood-filled syringe. He was not dealt with until almost four years later and received a sentence of 12 months imprisonment with a non-parole period amounting to time served of about 2½ months.
The two incidents in March 2019 arose from Mr Fardell's brief acquaintanceship with a woman who complained to police that on the evening of 16-17 March he became aggressive and said things including that she was going to die. She also said that he left and returned later in the night, climbed a ladder, cut the screen to her bedroom window and was abusive to her. The woman made a DVEC statement in which she claimed to have been intimidated. It is apparent from her demeanour and manner of speech, which is evident in the recording, that the woman was under the influence of some intoxicating substance, despite her denial. It was alleged that five days later Mr Fardell went to the woman's home and threatened to kill her if she did not withdraw apprehended violence proceedings. Proceedings in respect of both of these incidents were discontinued following Mr Fardell's death.

[16]

Crown tendency evidence

The Crown alleged that the accused had a tendency to act in a particular way, namely to: a. engage in unprovoked violence; b. physically assault people without immediate provocation; and c. act as an aggressor.
The accused did not object to the tender of this evidence. However, counsel submitted that, despite the seiousness of the incidents relied on by the Crown, "[t]here's no matter that involves a sustained attack on any other prisoner" or prison officer. [9] Additionally, counsel pointed out that some of the incidents relied on by the Crown happened at a time when the accused's "emotional level was very high". [10] These two circumstances were said to limit the probative value of the Crown's tendency evidence.
The evidence comprised documents relating to criminal convictions for offences of violence as well as for internal disciplinary charges concerning violence while in custody.
The criminal charges span a period of 2003 to 2019. The first episode was in April 2003 when the accused struck a man in the head with a baseball bat without warning. The judge's sentencing remarks include that the incident occurred while the accused was affected by alcohol and possibly by drugs. The sentence imposed was 4 years, 2 months.
Shortly after the above incident the accused travelled to Toowoomba where he went to the home of his former partner. He committed a number of offences from 27 to 30 April 2003. There were acts of intimidation, including with a baseball bat, towards his former partner and the deprivation of liberty of two of their children. On three separate occasions he punched men in the street for no apparent reason. The series of offences culminated with him punching a police officer in the face.
The accused was thereafter in custody and on 7 May, 10 June and 10 October 2003 and 22 January 2004 he assaulted correctional officers causing each of them actual bodily harm. He was dealt with for all of those matters together and received an overall term of 5 years, 6 months' imprisonment.
On 22 February 2007 he was provided with hot water at breakfast time upon his request. He threw the hot water at two correctional officers hitting one in the face and the other in the arm. For these assault offences he received concurrent terms of 3 months' imprisonment.
On 20 June 2009 the accused punched a correctional officer in the face causing a hairline fracture to the cheek as well as swelling and bruising. He was dealt with for an offence of assault occasioning actual bodily harm and received a sentence of 4 months' imprisonment. [11] The matter is notable for the explanation the accused gave when giving evidence in the present trial. [12] He said that correctional officers came to search his cell one morning and he asked them to come back at a reasonable time because he had just woken up. They insisted upon entering his cell and he warned them, "if you enter this cell, force will be used upon you". He said that they still opened the door and came into his cell uninvited, "so force was used upon them". [13]
On 18 April 2018 there was an offence of affray which involved the accused assaulting another inmate causing a bleeding lip and dental injuries. He received a 12-month term of imprisonment for affray.
On 31 March 2019 he hit the arms and chest of a correctional officer causing injury. He received a sentence of 12 months' imprisonment for this offence. The accused said in his evidence this matter involved retaliation out of frustration because of tardiness in having his phone privileges restored to him. [14]
The accused's history of infractions in custody further supports the Crown's assertion as to his tendency to violence. From 22 April 2018 to 27 May 2019 there were seven instances of him assaulting other inmates. [15] He had a fight with a cellmate who he said "had religious views which I didn't agree with". [16] He assaulted a man who had refused to turn down the volume of a television the night before. [17] He "squared up" with an inmate who had been involved in a joint assault upon him the week before. [18] When an inmate offered to shake hands, he punched the inmate in the face as retribution for an incident that occurred in another gaol about 4 or 5 years earlier. He punched an inmate for being one of a number who were telling tales about him. [19] He put up with an inmate behaving annoyingly in a holding cell for 10 or 15 minutes before punching him in the jaw. [20] The seventh incident involved retribution for something another inmate had done to him in another gaol 5 or 6 years earlier. [21]
There is no dispute these incidents of violence in the community and in various gaols occurred. I am satisfied they provide abundant proof of the accused having a tendency to engage in unprovoked violence. Some of his violent behaviour in the past may be at least partially related to the use of alcohol and/or drugs. However, that does not explain the many instances of violent conduct while in custody. High emotional levels, as suggested by his counsel, might be a reason for some of the incidents, but that just means he is a person who has difficulty controlling himself. The fact that no incident involved a "sustained" attack as was submitted is more because of the actions of others than because the accused voluntarily desisted.
I am satisfied the accused has an entrenched tendency to engage in unprovoked violence.

[18]

Morning of 11 June 2019

Daniel Vincent was the sweeper for F pod. His duties included delivering milk to the cells before the inmates were let out of a morning. CCTV footage [26] shows him delivering the milk to cell 234 at about 6.10am. He lingered at the door of the cell because the accused said to him, "my celly is dead". [27]
Mr Vincent said he turned on an external switch for a light within the cell and he could see the shape of a body underneath a blanket on the ground. He said the accused told him, "he got down there last night about 11 o'clock last night he went down and laid on the ground". [28] In cross-examination he accepted the accused may have said Mr Fardell had "climbed down or something", but "the impression I got was he just, he got himself down on the floor". He was "pretty sure" the accused said this was at 11 o'clock. [29] In re-examination, he confirmed he told police when interviewed on the day, "the impression I got was that he climbed down himself". [30]
Mr Vincent alerted correctional officers to what he had been told and had seen in cell 234 and they were quickly at the scene. It was confirmed that Mr Fardell had died. RN George was summoned as were ambulance officers and police.
Cell 234 was rectangular, about 4m deep and 2m wide. [31] The door is at the western end and there are three narrow windows with no bars on the far (eastern) wall. Immediately on the left-hand side upon entering the cell is a small toilet and shower area and then a double bunk bed is against the remainder of the northern wall. The accused occupied the lower bunk and Mr Fardell occupied the upper bunk. There was a ladder affixed to the side of the bunks near the end closest to the cell door. In the far right (south-eastern) corner there is a small bench with a concrete stool fixed to the floor in front of it. A small television was on top of the bench. There was a makeshift clothesline affixed to the ceiling from the door almost all the way to the far end of the cell.
Mr Fardell's body was found in the open space of the cell lying on the ground with his feet closest to the door. There was a blanket over his legs. His head was tilted with the right side down. His right forearm was tucked underneath his body and his left arm was by his side. His knees were bent slightly. The officers who were first to attend rolled the body partially to better view it but when it was obvious that Mr Fardell had died, they returned the body to its initial position and covered it completely with the blanket. [32]

[19]

Investigation

A log was kept of all activity concerning cell 234 from 6.19am onwards. [33] It includes: 6.20am First correctional officers examine the cell. CPR attempted but it became quickly apparent that Mr Fardell had died. 6.46am RN Sarah George attended and determined there nothing that could be done. 6.50am Ambulance officers attend. 6.55am Ambulance officer exit. Senior Constables Walker and Douglass enter the cell.
Detective Senior Constable Dean Rutledge became the officer-in-charge of the investigation. He and Plain-Clothes Senior Constable Matthew Lees arrived at the MNCCC shortly before 8.20am. [34] They made enquiries of various correctional officers and viewed relevant documents. They spoke with Daniel Vincent shortly after 9.00am [35] and with the accused from 9.35am. [36]
The accused told police he did not know how Mr Fardell came to be dead on the floor of the cell. He became aware of it when he woke in the morning, just before the sweeper did his rounds, and found the body on the floor. It was cold and there was no pulse. [37]
The accused objected to the admissibility of this conversation with Det Rutledge. He relied upon s 90 of the Evidence Act 1995 (NSW). The conversation was audio recorded. The unfairness was said to be that unlike the detective's conversations with Daniel Vincent and with a correctional officer the following day, there was no "jurat" applied to it. This was a reference by counsel to the standard first paragraph of written statements that is required for committal proceedings pursuant to s 283B(3) of the Criminal Procedure Act 1986 (NSW) and r 9I of the Criminal Procedure Regulation 2017 (NSW). The essential point was that the accused's attention was not drawn to a requirement that he be truthful.
Det Rutledge thought at this point he was inquiring into a matter that would be reported to the Coroner, like all deaths in custody. [38] The cause of death was unknown but at this early stage there were indications of natural causes. The accused was no more than a witness. There was no legal, moral or ethical obligation upon Det Rutledge to tell a witness that the witness should be truthful. No authority was cited in support of such a proposition. What Det Rutledge did when he spoke with other witnesses did not define his obligations when he spoke with the accused. I ruled the evidence of the conversation was admissible.
Crime Scene Officer Luke Atkinson attended the MNCCC at about 9.30am. He went to a police area within the gaol where he spoke with Det Rutledge and PC S/Const Lees after they had finished speaking with the accused. They then went to F pod and cell 234. This was at about 10.00am.
The detectives departed as CSO Atkinson commenced his examination of the cell. His first task was to take photographs. He moved the body of the deceased so as to continue taking photographs. He took one at 10:19:57 (according to its metadata) that became photograph number 5 in Exhibit G. [39] The body had been rolled over for this photograph and it became apparent that there was a significant mark around the neck. It had the appearance of having been made by a ligature. CSO Atkinson proceeded to take other photographs which focussed upon the head and neck area and more clearly showed views of the neck where the mark was more pronounced.
CSO Atkinson said that prior to seeing the marks around the neck there was no indication to him that there was any suspicion attaching to the death. He had information that it could possibly have been a "medical related incident". [40]
After finding and photographing the marks around the neck, CSO Atkinson spoke with S/Const Walker. He left the area of the cell and spoke by telephone with Senior Sergeant Gane, the zone co-ordinator of the Crime Scene Section. He advised CSO Atkinson to resecure the cell and wait for his arrival. (S/Sgt Gane was based in Lismore.)
Det Rutledge said that when he attended cell 234 at about 10.00am and viewed the body he did not have an opinion as to the cause of death. [41] He said all he could see was Mr Fardell lying on the floor and he did not move him. He had been informed by a corrections officer that there was a possibility he may have had a heart attack or had a medical condition. He did not see any injury to Mr Fardell at that stage. [42]
Det Rutledge and PC S/Const Lees left the MNCCC to return to Kempsey. They received news of the finding of the ligature mark while en route and CSO Atkinson emailed some photographs. Det Rutledge said this information changed the investigation. [43] The decision was taken to involve a senior crime scene officer, S/Sgt Gane. Sergeant Zorro Simundza was tasked to make an application to the Local Court for an interim Forensic Procedure Order to enable the accused to be photographed and his hands swabbed.
S/Sgt Gane arrived in the Kempsey area in the late afternoon. He had a briefing with Det Rutledge, and they travelled to the MNCCC. He met up with CSO Atkinson in F pod and was taken to cell 234. S/Sgt Gane took photographs of the scene and carried out his own examination. He gave the following description of the ligature mark: [44] "There was a dark red, horizontal, lineal mark with indentation of the skin around the front and sides of the neck with the mark being less prominent, but still visible, at the rear of the neck. The mark measured approximately 5 to 6 millimetres in width. The action that caused this mark did not appear to have broken the skin sufficient to cause bleeding. The mark was located generally around the centre of the neck. I noted that it was not up high under the chin or ears as can be observed in the case of a suicide by hanging."
S/Sgt Gane looked around the cell for any item that could have been used as a ligature. He seized two cords attached to the television, the power cable and a coaxial antenna cable. Subsequent examination indicated that there were mixed profiles of DNA on those cords, but no person could be identified. [45]
CSO Atkinson was present during the examination by S/Sgt Gane. He said that the marks on Mr Fardell's neck had become more prominent: [46] "There initially wasn't a lot of discolouration across the front of the neck. I described it as a scabbed mark, but after the period of time between when the cell door was locked and then it was reopened with Senior Sergeant Gane, the mark had deepened in colour, it was a red, very noticeable and very distinct like across the neck."
S/Sgt Gane and Det Rutledge then went to another part of the MNCCC where a forensic procedure was carried out.

[20]

A forensic procedure

The procedure was administered by S/Sgt Gane with Det Rutledge making an audio-visual recording. S/Sgt Gane said they focused on the condition of the accused's hands as to whether there were any visible marks or staining, which he said there were not. He also took swabs of each fingernail. Overall, S/Sgt Gane said that he did not note any injuries to the accused, nor did he find any blood or staining on his hands.
There was conversation between the accused and Det Rutledge during and after the forensic procedure. He maintained the version of having had no involvement in the death of Mr Fardell. He said that the only contact he had with him was to feel for a pulse when he found him on the floor of the cell in the morning. [47]
The accused objected to this evidence, again based on s 90 of the Evidence Act. The basis for the objection were three asserted "defects". First, the accused had been incorrectly described by Sgt Simundza as an "incapable person" in the application emailed to the Court for authorisation of an interim forensic procedure. (Later, and before the application was granted, the accused signed a consent to the procedure.) Second, at an early point in the conversation Det Rutledge was explaining to the accused how the interim order had been made. In doing so he tried to show the accused something that had been sent to the detective's phone. The accused was unable to read it because he did not have his glasses. Det Rutledge did not pause and allow time for the accused's glasses to be obtained. Third, there was imprecision as to what documentation was provided or shown to the accused. [48]
Counsel also relied upon general assertions of unfairness in the conduct of the conversation. The submissions moved from a contention that questioning should not occur during a forensic procedure to a claim that the accused should have been told of his rights in a fashion similar to that set out in Pt 9 (particularly s 122) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).
There was no merit in any of these contentions and I ruled the evidence was admissible. The accused was cautioned twice at the beginning of the conversation with Det Rutledge. He was clearly told that he was now a suspect. It was the accused who initiated conversation at an early point (Q30) during the forensic procedure. He was proactive in contributing conversation at other points as well. Conversation at the end of the recording was subsequent to the forensic procedure having been completed.

[21]

Autopsy

An autopsy examination was carried out on the morning of 13 June 2019 by Dr Hanna Elstub, forensic pathologist. She found the direct cause of death was "neck compression". [49]
Dr Elstub recorded that Mr Fardell was a 52-year-old man with a history of HIV infection and that he had been previously treated for hepatitis C and schizophrenia. She also recorded a history of intravenous drug use (opioids and methylamphetamine) and cannabis use. [50]
Dr Elstub described the ligature mark around the neck in this way: [51] "I describe this as being … almost circumferential, which means almost all the way around the neck … it had a red-tan appearance and it was dried. … the mark sloped slightly downwards on the left side of the neck and there was a faint redness to the border at the top part of this mark. At the right side of the neck the mark had a similar width to where it was present at the front and there was a larger area of red abrasion, which is like a scrape in layman's terms, at this aspect of the neck which measured 16 by 21 millimetres. At the left side of the neck the mark had a similar width to the front and the right side, and then there was a separate red abrasion just above the mark on this side of the neck which measured 3 by 10 millimetres. And at the posterior aspect of the neck there was a similarly measured mark and there was an area of red abrasion just superior to this mark. … at the left … side of the neck, the dried mark was discontinuous where there was a small amount of space separating the two marks."
She said that the mark at the rear of the neck was not as distinct in appearance as the marks to the side of the neck. She was asked whether she saw anything significant in terms of where the ligature was applied, and she said: [52] "the only thing I noted was that it looked as if there was a possible crossover point on the left side of the neck where I described there were - the mark itself was discontinuous and separated by, I believe I said, approximately 7 millimetres which looked where the ligature could've possibly crossed over, but as to the position of how it was applied other than that, no."
Dr Elstub described the following injuries to Mr Fardell's face: [53] "I noted an area of multiple red abrasions, so they are, as previously stated, a scrape type injury on the right cheek region. There was also a purple bruise in this same area. There were two purple bruised dash abrasions, so both injuries together on the right forehead just above the eyebrow. And there were multiple overlying split lacerations. So these are tiny breaks in the skin from a blunt force in this area. There was also a dried red abrasion, a scrape on the right central eyebrow, so in the centre of the right eyebrow. And there were also two linear what I call depressions of the skin of the left forehead."
Also noted were a number of injuries to the upper limbs: [54] "So there was a tan abrasion/scrape on the back part of the right upper arm, just above the elbow. There was a faint red abrasion or scrape on the posterior, so back, right elbow. There was a tan abrasion or scrape on the back part of the right forearm, so the lower part of the arm, just in front of the elbow. There was a tan abrasion or scrape on the lateral, so outer part of the right wrist. There was a red abrasion or scrape on the inner part of the left wrist. There was a red abrasion or scrape on the back of the tip of the third finger of the right hand. There was a red abrasion or scrape on the tip of the back of the fourth finger of the right hand. There was a tan abrasion or scrape on the back of the tip of the second finger of the left hand. And then there were several healing abrasions, so they showed some evidence of healing and having been caused earlier."
Dr Elstub said where there was evidence of healing, she considered the injuries were sustained some period of time before the events leading directly to death. The other injuries described appeared fresh or acute, but she added that dating of injuries with any accuracy is not possible. She did, however, say that the injuries would be consistent with Mr Fardell lying on his right arm and having those parts of his arm abraded on the concrete surface of the cell. [55]
As to whether the abrasions occurred before or after death, she said when there is a red colour it usually means it occurred around the time of death or before.
Dr Elstub observed a bruise over the right superior orbital ridge (the bone underneath the right eyebrow). There was also bruising associated with the ligature mark, bruising of the muscles between the ribs on the upper right side and a faint bruise on the front of the left upper arm. A radiological report included that there were injuries to the thyroid cartilage and the right cricoid cartilage (both in the area of the larynx) as well as signs of soft tissue bruising to the muscles at the front of the neck. [56]
Small haemorrhages seen on the inner eyelids were indicative of neck compression. [57]
In cross-examination Dr Elstub confirmed that the area she saw on the left side of the neck appeared to be a possible crossover point for the ligature around the neck. [58]

[23]

26 June 2019 interview

Det Rutledge arranged for the accused to be brought to Kempsey Police Station on 26 June 2019. This was an arrangement he made after having received an interim report following the autopsy examination of the deceased by Dr Elstub. He had also arranged for a further forensic procedure order for the obtaining of a DNA buccal swab. [62]
The accused was spoken to by the custody manager on duty at Kempsey Police Station, Senior Constable Noeleen Little. She explained his rights in accordance with Pt 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). He also spoke to a lawyer by telephone and received further advice. A recorded interview then took place involving the accused with Det Rutledge and Sgt Simundza.
Counsel for the accused objected to the entirety of this interview. The objection was primarily based upon the accused having received legal advice and it being then communicated to Det Rutledge that he did not wish to be interviewed. However, the accused indicated he was happy with the detective's proposal that the allegations would be put to him and his responses recorded. Broadly speaking, that is what occurred. It might not have been a simple matter of allegations being bluntly put and the accused invited to comment. But the accused had been appropriately and repeatedly cautioned and advised about his right to silence.
The accused answered questions, mostly without any apparent hesitation. At one point, however (Q222-223), he said that he wanted to exercise his right to silence. At other points he indicated he had no information to provide. It can be inferred from this that he had kept in mind during the interview that this right was available to him and he had the fortitude to exercise it. At the end of the interview when the custody manager came in to ask the usual adoption questions, the accused was asked if he had taken part in the interview of his own free will and he answered in the affirmative.
I was not persuaded that there was relevant unfairness pursuant to s 90 of the Evidence Act that should warrant exclusion of the evidence of this interview.
Before moving on, I make the following observation. In relation to each of the three interactions between the accused and Det Rutledge that were the subject of objections but rulings that the evidence was admissible, the evidence in the end was of very minor significance. The accused did not make any admissions. He perpetuated a false denial of being responsible for the death of Mr Fardell. The Crown ultimately (and correctly) eschewed reliance upon this as evidence giving rise to an inference of consciousness of guilt; it only relied upon the denials as adverse to the accused's credibility. In the end, I find his account of what occurred is implausible in its own terms. The lies told to Det Rutledge are not material to that assessment.
I return to the content of this particular interview. Det Rutledge told the accused of an autopsy examination having been performed. He reminded the accused of the account he had given on 11 June 2019 and asked him some questions about certain aspects. He then told the accused of the ligature mark found around Mr Fardell's neck, with indications of it being consistent with strangulation and not consistent with suicide. I have mentioned the accused at one point exercised his right to silence and elsewhere declined to respond. However, at another point he gave a definitive denial of ever having a fight with Mr Fardell, and of having caused him any injuries. [63]
A buccal swab was obtained from the accused which, with various items of interest, were submitted for DNA analysis. The results were neutral. [64]

[24]

The accused's case

The accused's version was that after he and Mr Fardell were locked in at about 3.00pm, he ate his meal, showered and then got into bed. He occupied the lower bunk bed. He said he started to watch TV but then fell asleep because he was drowsy. He was drowsy because he was on the methadone program, receiving it daily, usually at around 10.00 to 11.00am. He described not paying much attention to what Mr Fardell was doing except that he was in his own bed. [65]
The accused said that he woke at some stage and heard Mr Fardell go to the toilet. The accused went back to sleep. Then, at a time he was unsure of, he woke and found Mr Fardell standing in front of him. [66] Mr Fardell was pointing at the TV and saying in a menacing manner, "turn the volume down". [67] The accused replied, "you're standing there, you turn it down". Mr Fardell leapt on the accused as he lay on his back and started throwing punches. [68] The accused said that he had a clothesline running along the top of his bunk (the underside of the upper bunk) which had underwear on it. He reached up and ripped it down, "out of impulse". He continued: "I twisted it around Mr Geoffrey Fardell's neck and tightened it and he kept on hitting me, so I've tightened it harder and then the struggle kept on going on. As the struggle went on I just, I tightened it, because it was in a V cross shape. … and then as the struggle slowed down, he stopped, I rolled him off me onto the floor, laid there getting my bearings, wondering what's just occurred." [69]
The accused said he wiped his face because he had blood from a split lip. He got up and went over to the intercom. He said: "I was sort of in a panicked state and then I've looked over and he was laying there, not moving. So I ran back over, undone the piece of cord, the clothes cording, cord, and he was - there was no movement. I ran over to the intercom. I was, like, in a panic, like, I don't know, you could say scared and just, like, worried and confused about what to do next, whether to try and either buzz up, which I should have, I know I should have buzzed up but I was just freaked out and scared at the time." [70]
The accused went over to Mr Fardell and felt his neck for a pulse but there was none. [71] He went back over to the intercom and was there for, "like half an hour". [72] He said he wanted to press it but he was just in a panicked state; everything happened so quickly. He showered. He paced up and down. He described himself as "just confused and just … in hysterics". [73]
He sat on the bed and nodded off. When he woke up, he switched the TV off and then went back to bed. He switched the TV on again when it was close to daybreak. He heard the officers come into the pod. He jumped up and tripped over the deceased on the floor. [74] He again knelt down and felt for a pulse but there was nothing. He went to the door and the sweeper, Daniel Vincent, was coming up the stairwell. He asked Mr Vincent to let the officers know that there was a deceased person in the room.
The accused's evidence about the events after the first officers came into the cell is not of particular significance.
His account of the three conversations with Det Rutledge, was given on the voir dire and was later tendered by consent in his case. [75] It was considered when determining that evidence was admissible. It has no further significance.
The accused was asked about his relationship with Mr Fardell in the days they had been housed in a cell together. He described the relationship as "minimal". He described them as not having spoken to each other very much. He said there had been no prior disagreements about the volume of the television or anything else. There had been conversations about the cleanliness of the cell but, "it weren't enough to bring violence into the room … in my eyes, anyway". [76] There had been no prior violence between them.

[25]

Assessment of the accused's evidence

I am conscious of the fact that when assessing the accused's evidence the onus and standard of proof must be kept firmly in mind. I have referred to the principles earlier. In short, even if I were to reject completely the accused's version, it remains a matter for the Crown to establish its case beyond reasonable doubt.
The accused agreed he had told Det Rutledge that Mr Fardell was "quiet". He said Mr Fardell "doesn't say nothing to no one. Just goes, get up, goes to work, comes home, goes straight to bed". [77]
The accused was pressed by the Crown Prosecutor to provide more detail about the events that led to him applying the ligature to Mr Fardell's neck. He said when he became aware of Mr Fardell standing near him and telling him to turn the volume of the TV down, he was "standing over the top of me, pointing to the TV". His head did not come underneath the top bunk, but he was leaning towards the accused, making the accused feel intimidated and in a vulnerable position. The accused did not try and roll over or swing his legs out to get up but he raised his voice to say, "no, you turn it down" in a "more semi-aggressive tone". [78] He was close enough that he could have reached out and pushed Mr Fardell away but he did not think about doing that. On the second occasion of being asked to turn the volume down he replied, "no, you turn it down" in a "more slightly aggressive manner". [79] At that point Mr Fardell "leapt on top of me, started throwing punches". The accused was still lying on his back with his head on the pillow when this occurred. [80]
The accused described Mr Fardell at this point as having one knee on the lower bunk and the other foot still on the floor. He was within arm's reach of the accused and landing punches on him. There was "a fair few" punches. They were, "Medium. Enough to rattle you." The punches were to his face. [81]
The accused said that he reached up to the clothesline above him which he used to put underwear on to dry. He said he: "Ripped that down and twirled it around the - Mr Fardell's neck and tight, tightened it and just used my body weight to tighten it. … hoping that the aggression would stop." [82]
The reference to using "body weight" is suggestive of using gravity in order to apply greater force or pressure. It is something that makes more sense if the person to whom it is applied is below rather than above. It is difficult to envisage the use of "body weight" when the accused was prone on his bed and Mr Fardell was punching from above.

[26]

Implausibility of the underwear clothesline

The Crown Prosecutor pressed the accused for more detail about the clothesline that he claimed to have used as the ligature. Over the course of the cross-examination there emerged three accounts as to how this clothesline had been installed. The first account included that at the window end of the bunk bed it was secured by being tied to a horizontal bar at the window while at the other end it was pushed up underneath the upper bunk with a plastic knife.
Later in the cross-examination, the accused was shown photographs of the cell and asked where the window bar was. He realised the cell did not have any bars at the windows and explained he must have been mistakenly thinking about a different prison. He then explained that "it was similar to the other end". The accused's evidence now was that the clothesline "was definitely at both ends, they were jammed up in some way". He explained that the confusion was because he always put a line up in every room (cell) he was placed in. [83]
The accused was shown a photograph depicting the clothesline hanging from the ceiling for almost the entire length of the cell. He said that he would probably have installed that clothesline as well after he moved into this cell. [84] It seems odd he would need another clothesline to hang his underwear in his bed.
As to what happened to the clothesline used to strangle Mr Fardell, the accused said that he "threw it into the toilet and flushed it". [85] I am curious how a strip of bed sheeting which must have been about 2m long could be flushed without apparent difficulty; but absent direct evidence on the subject I put that curiosity aside. A matter that I do take into account adversely to the accused's credibility is his nonsensical explanation as to why he flushed it: [86] "Q. No? Well, maybe I'll come back to that question later on, but something that we haven't spoken about yet, Mr Reay, is what happened to the line that was wrapped around the neck of Mr Fardell? A. I threw it into the toilet and flushed it. Q. Did you? A. Yeah. Q. So if we go to photograph 39, that's the toilet in the cell. Do you accept that? A. Yes. Q. So to flush this line that you're talking about away, did you just drop the line into the stainless steel bowl? A. And flushed it, yes. Q. And pressed flush on the toilet. The button is on the wall, isn't it? A. No. It's on that steel behind the toilet. Q. Is it? Okay, and when did you do that? A. Soon after the incident occurred. Q. Well, you told us that you got down and your knelt down, I think, next to Mr Fardell and you took the line from around his neck? A. Yep. Q. Do you remember telling us that? A. Yes. Q. Did you take it straight away and flush it? A. Probably, yes. Q. When you say "probably"-- A. I think it was just - I think I just - I just picked it up and just tossed it in the toilet and then flushed. Q. Do you not really remember exactly when you flushed it down the toilet? A. No. Q. Why did you flush it down the toilet? A. It was a piece of rag, like, a piece of offcut line, I suppose. It was - Q. Yes, but why were you flushing it down the toilet? A. There's no use having it laying on the floor. Q. Up until you say you used it to strangle Mr Fardell, it had been a perfectly good clothesline, hadn't it? A. Yes. Q. So why were you flushing it down the toilet? A. It was just - it was laying there on the floor. I just picked it up and-- Q. Weren't you-- A. --flushed it in the toilet. Q. Weren't you flushing-- A. Then I had a - then I urinated and flushed the toilet. Q. Remember a little while ago you said something to me to the effect of "to be honest with you"? A. Yes. Q. Well, to be honest with the Court, didn't you flush it down the toilet to get rid of it? A. No. Q. To hide it? A. To discard of it. To discard of the line, yes. Q. To hide it? A. No. Q. So that the police wouldn't find it? A. No."
Towards the end of the cross-examination, the Crown Prosecutor returned to the issue of a clothesline in the bunk. The accused reiterated he had been initially mistaken saying it had been secured around a bar in the window and maintained it was in fact wedged up between the bunk and the wall. He was asked if he was certain about that and he replied, "Pretty much, yeah". [87] He then offered the fact that there was a post at the end of the bed and so it "could've been tied around there". [88]
The post he referred to is clearly visible in photographs. It is approximately twice as wide at the top than it is at the bottom. It appears to be metal with a reasonably smooth painted surface. It is difficult to imagine how a strip of material as described by the accused could be secured to the top of the post by a knot without slipping down. Nevertheless, that is what the accused maintained: [89] "You could easily put a slip knot on there … if you put a slip knot on there … it wouldn't slide down. … You're only use it for underwear".
Counsel for the accused was critical of the Crown's submission on this subject, describing it as "entirely speculative" to say that it would not be possible for a line fastened to this post to bear the weight of even small pieces of damp clothing. I think there is merit in the Crown's submission. More concerning, though, is the accused's grasping at this third straw of an explanation for how this clothesline happened to be conveniently available to him.
It is easy to accept that the accused has been in so many different cells in many different gaols over the years that it would not be easy for him to recall the individual characteristics of specific cells. However, it is surprising that he had such difficulty with the one in which he killed his cellmate. The presence of the clothesline in his bunk would likely have been quite a memorable feature.
I readily accept that there is probably an ethos of making do with what you have in a prison environment. However, the whole idea of having a clothesline so that a person could dry underwear dangling just above the bed in which the person slept seems a rather unlikely concept.
Counsel submitted that the issue about the clothesline in the bunk was a "red herring". The accused had been consistent about the mechanism of strangulation and what was used as a ligature. It was submitted the only inconsistency was how the clothesline had been fastened within the bunk. Rather than being a distraction, I see this as a critical part of the accused's account; it is a necessary part of explaining how he was able to take up, on "impulse", a conveniently available means of defending himself against the attack of his cellmate. Without this part of his account being credible, it is difficult for the rest of it to have any credibility.
I have grave doubts about the truthfulness of this aspect of the accused's version.

[27]

General implausibility of the accused's account

More significantly, however, the accused's entire account of how he came to kill Mr Fardell is implausible. It includes that he took the trouble to climb down from the top bunk in order to stand within probably close to arm's reach of the television in order to demand that the accused turn the volume down. This part of the story by itself makes no sense. Surely Mr Fardell, if he minded getting out of his bunk at all, would have simply turned the television off, or the volume down, and returned to his bunk.
The accused's version continues with the claim that when he did not acquiesce with Mr Fardell's demand, Mr Fardell delivered a flurry of punches to the accused's head as the accused lay flat on his back. It is very difficult to imagine how this could have occurred. Mr Fardell was 178cm tall and the accused claimed that he had one foot on the ground and one on the lower bunk, and his head was not protruding below the upper bunk. The vertical space between the lower and upper bunks does not seem sufficient for this. Counsel for the accused submitted there was speculation in the Crown's submissions about insufficient space because there was no evidence of precise measurements within the cell except for the approximate overall dimension of 4m x 2m provided by CSO Atkinson. That submission is acknowledged but it remains the case that the accused's account is difficult to envisage in such a confined area.
The accused's version proceeded with him not doing something that would be instinctive, like covering up to avoid the blows, reaching out to grab at Mr Fardell's hands or arms, or perhaps even punching back. Afterall, the accused does not appear to be a person reticent about using his fists. He claims that he sat up and grabbed the fabric clothesline which he described as "an impulse". Despite Mr Fardell continuing to flail away with his punches, the accused, once again on his back, then managed to reach Mr Fardell's neck to wrap part of a relatively long piece of fabric once or twice around and then pull it taut, using his "body weight". [90]

[28]

Missing injuries

The punches to his face were delivered with what he described as "medium" force. [91] There must have been quite a number of them before Mr Fardell became incapacitated, particularly given the description of there being a "fair few" and a "flurry". [92] Despite this, no-one saw any injuries to the accused; none are discernible in photographs taken of him on the evening of 11 June 2019; and when specifically asked by Det Rutledge on three separate occasions if he had any injuries he said he did not. Det Rutledge was not challenged about his evidence that the only injury he observed was what looked like a healing scar or mark on the top lip. Nevertheless, the accused gave evidence that he sustained injuries to his upper and lower lips. He did not tell police about this because: [93] "I feel like an injury is something worth going to hospital for or to see a doctor for. A graze or a little split on your lip is - can you really call that an injury? No."
The accused's counsel submitted that the laceration he sustained to his lower lip would not have been visible to anyone or discernible in photographs. That is accepted. It was also submitted that the accused's evidence of an abrasion to his upper lip was supported by what Det Rutledge observed. I find it difficult to reconcile a "healing scar or small mark" with an abrasion sustained only 24 hours previously. There is, however, force in the submission that the accused's denial of any injury came at the same time as he was denying any responsibility for the death of Mr Fardell. In other words, he was not truthfully forthcoming about both subjects.
Nothing was seen on Mr Fardell's fingers or knuckles that provided support for the accused's version. True it is as counsel submitted that Dr Elstub was not asked about some marks on the fingers. But the photographs show the marks are abrasions to each of the ring and middle fingers of the right hand, at the knuckle closest to the nail. [94] They do not appear likely to have been caused by Mr Fardell punching something.

[29]

Location of the body inconsistent with accused's account

The location of the body of Mr Fardell is another matter that does not coincide with his version. The accused slept with his head at the window end of the bunk and so the supposed attack by Mr Fardell must have been towards that end of the cell. It has been mentioned previously that the shower and toilet area of the cell was immediately inside and to the left of the cell door. The ladder to the top bunk was where the accused's feet would be as he lay in his bunk.
The accused's evidence was that after Mr Fardell "slumped" upon him and then "plonked" to the floor, [95] he moved the body: [96] "Q. Did you have to lift his head up? A. No. I just knelt down and, actually I might have lifted his head up slightly to undo the line. Q. And at that point in time, when you're kneeling down beside him, is he in that position we've seen where he's lying more or less on his face? A. On his side in the semi-foetal position. Q. Right, well let me ask you this, did you move his legs? A. No. Q. Did you move the middle-- A. I may have pulled him out a slight way, away from close to the bed where he was and that was it. Q. Well how did you do that? A. But he's virtually, he's virtually, the way he was found, was the way he - when I got up off the bed, the way he was laying."
The cross-examination returned to this topic the following morning. The accused said that he might have moved the body a little bit, just the body, "out from being so close to where the edge of the bed were". That was because, "As I've gotten up, that was virtually the body was laying there so I've virtually tripped over the top". He said he picked the body up by the feet, dragged him, not that much, maybe a foot (i.e. 12 inches). [97]
This is not consistent with the location of the body in the morning. The head was adjacent to the ladder and the feet were approximately adjacent to the toilet area. Blood or bodily fluid seen on the floor in the region of the head had no smears or marks indicating movement of the body from one position to another. I accept the submission of counsel for the accused that precision about a matter like this is unlikely to be found in the evidence. Nonetheless, this is another topic on which the account of the accused does not find support in the objective evidence.

[32]

Conclusion

The accused and the deceased were locked in a cell. The deceased died from ligature strangulation. The death was not an act of suicide. I am satisfied beyond reasonable doubt that the accused killed the deceased.
The case for the accused is that there is a reasonable doubt about whether he intended to cause death or grievous bodily harm. The act of strangling a person to death by itself will usually indicate an intention to bring about one of those outcomes. I am satisfied beyond reasonable doubt that it did in this case. That inference is available independently of anything said by the accused. However, it is consistent with a matter I do accept in his evidence. When Mr Fardell lay on the floor of the cell after having been strangled, the accused was aware he had no pulse. The accused declined to perform CPR or call for assistance. If Mr Fardell was not already dead, the accused was content for him to die.
The accused's case is that he strangled the deceased because it was necessary to do so in order to defend himself. He did not actually say this when he gave evidence. The closest he came to giving evidence that self-defence was his motivation for doing what he did was when he said: [98] "I was in fear for my safety, like. You don't know who you're in the cell with. You don't know what they're in for."
Nevertheless, the accused accepts that his response was excessive in the circumstances as he claims the circumstances to have been. Accordingly, he asks to be found not guilty of murder but guilty of manslaughter on the basis of excessive self-defence.
The accused's account of being attacked by the deceased and thinking that it was necessary to defend himself from such an attack is entirely implausible. To put it in simple terms, I do not believe any of it. There is no case of self-defence to consider.
I am satisfied beyond reasonable doubt that the accused caused the death of Geoffrey John Fardell on or about 10 June 2019 at the Mid North Coast Correctional Centre at Aldavilla by unlawfully strangling him with the intention of killing him or at least causing grievous bodily harm.

[33]

Endnotes

Criminal Procedure Act 1986 (NSW), s 132(2).
Criminal Procedure Act 1986 (NSW), s 133(2).
Crimes Act 1900 (NSW), Pt 11 Div 3.
Tcpt, 31 March 2021, p 600(26)
Tcpt, 17 March 2021, p 128(29).
Aside from the accused's evidence of the incident in question of course.
Tcpt, 17 March 2021, p 128(27).
Tcpt, 24 March 2021, p 460.
Tcpt, 26 March 2021, p 594(37).
Tcpt, 26 March 2021, p 594(47).
Tcpt, 25 March 2021, p 538(30).
Tcpt, 24 March 2021, pp 469-70.
Tcpt, 24 March 2021, p 469(15).
Tcpt, 24 March 2021, pp 470-2.
Exhibit AA.
Tcpt, 24 March 2021, p 472(26).
Tcpt, 24 March 2021, pp 484-6.
Tcpt, 24 March 2021, p 474(35).
Tcpt, 24 March 2021, p 476(7).
Tcpt, 24 March 2021, p 476(25).
Tcpt, 24 March 2021, p 477(26).
Tcpt, 17 March 2021, p 152.
Tcpt, 17 March 2021, pp 128(27), 157(50).
Exhibit D.
Tcpt, 17 March 2021, pp 150-1.
Exhibit A.
Tcpt, 15 March 2021, p 21.
Tcpt, 15 March 2021, p 22(45).
Tcpt, 15 March 2021, p 28.
Tcpt, 15 March 2021, p 35(21).
Approximate measurements provided by CSO Atkinson. Tcpt, 18 March 2021, p 227(12).
Tcpt, 16 March 2021, p 102.
Exhibit E.
Tcpt, 19 March 2021, pp 265-6.
Tcpt, 19 March 2021, p 268(30).
Tcpt, 19 March 2021, p 269(42).
Exhibit S.
Tcpt, 19 March 2021, p 270(24).
Tcpt, 18 March 2021, p 228(28).
Tcpt, 18 March 2021, p 229(16).
Tcpt, 19 March 2021, p 273(43).
Tcpt, 19 March 2021, pp 273, 274(50), 310(10).
Tcpt, 19 March 2021, p 275(7).
Tcpt 18 March 2021, pp 236-7
Tcpt, 18 March 2021, p 239(35).
Tcpt, 18 March 2021, p 230.
Exhibit U.
Tcpt, 23 March 2021, p 407.
Tcpt, 18 March 2021, p 243(10).
Tcpt, 18 March 2021, p 243(35).
Tcpt, 18 March 2021, p 244.
Tcpt, 18 March 2021, p 246(42)-(46).
Tcpt, 18 March 2021, p 247(5)-(13).
Tcpt, 18 March 2021, pp 247-8.
Tcpt, 18 March 2021, p 248(20).
Tcpt, 18 March 2021, pp 249-50.
Tcpt, 18 March 2021, p 251(19).
Tcpt, 18 March 2021, p 251.
Tcpt, 24 March 2021, pp 491-2.
Tcpt, 18 March 2021, p 280.
Tcpt, 19 March 2021, pp 271-2.
Tcpt, 18 March 2021, p 280.
Exhibit V (Q279-80).
Exhibit Y. (It was indicated at the time that Exh Y was tendered that there was an objection to it and so it was only provisionally admitted as an exhibit. However, nothing further was said about it so the document can be confirmed as the exhibit.)
Tcpt, 24 March 2021, pp 450-1.
Tcpt, 24 March 2021, p 452(49).
Tcpt, 24 March 2021, p 453(2).
Tcpt, 24 March 2021, p 453.
Tcpt, 24 March 2021, p 453(31).
Tcpt, 24 March 2021, p 453(45).
Tcpt, 24 March 2021, p 454(6).
Tcpt, 24 March 2021, p 454(8).
Tcpt, 24 March 2021, p 454(25).
Tcpt, 24 March 2021, p 455(13).
Tcpt, 24 March 2021, p 458.
Tcpt, 24 March 2021, p 460(42).
Tcpt, 24 March 2021, p 494(35).
Tcpt, 24 March 2021, p 505(21).
Tcpt, 24 March 2021, p 505(32).
Tcpt, 24 March 2021, p 503-5.
Tcpt, 24 March 2021, p 506.
Tcpt, 24 March 2021, p 506(48).
Tcpt, 24 March 2021, pp 521, 523(20).
Exhibit Q, photograph 37. Tcpt, 24 March 2021, p 524.
Tcpt, 24 March 2021, p 526(15).
Tcpt, 24 March 2021, pp 526-7.
Tcpt, 25 March 2021, p 563(13).
Tcpt, 25 March 2021, p 563(26).
Tcpt, 25 March 2021, p 564(27).
Tcpt ,24 March 2021, pp 505(49), 515(8).
Tcpt, 24 March 2021, p 506(30).
Tcpt, 24 March 2021, pp 506(24), 515(16).
Tcpt, 25 March 2021, p 548(38).
Exhibit R, photographs 9 and 10.
Tcpt, 24 March 2021, p 515(20).
Tcpt, 24 March 2021, p 519.
Tcpt, 25 March 2021, p 547.
Tcpt, 24 March 2021, p 514(4). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 March 2021

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