Katrina Whitmore: facts
9 Mr Durrant and his friend, Mr Guy Marrett, had been together on Australia Day 2007. Both had been drinking and it is clear that both of them were very substantially affected by alcohol. Shortly before 1 am on 27 January the two men arrived at the driveway of the house where Mr Durrant was living. As they walked down the dogs owned by Katrina started to bark. One or possibly both of them reacted verbally and sufficiently loudly to be heard by Katrina, who occupied a neighbouring house with her partner Mr Sotiropoulos. Frederick and his partner, Ms Pullen, were also there that night. There were also a number of children in the house. Ms Pullen was in the bedroom when the offender yelled at Mr Durrant and Mr Marrett. She was able to see the kitchen but not actually the front door itself but she said that she saw Katrina in the kitchen, leaving the kitchen and going to the door to go outside. She then heard Katrina, Mr Sotiropoulos and Frederick outside, having gone through the front door. In cross-examination she agreed that there was nothing in Katrina's hands. She said that Katrina was not carrying anything. The Crown prosecutor re-examined Ms Pullen briefly as to whether she had actually seen Katrina go outside but did not question or seek to question her about the accuracy of her observation that Katrina was not carrying anything. Her evidence was therefore left in the position that she had seen Katrina go to the door to go outside. She did not actually see her go outside. But there was not the slightest suggestion made to her that her observation about whether Katrina held anything in her hands was wrong or, for example, that Katrina had gone back into the kitchen say, to get a knife, before actually going outside. If the prosecutor had wished to take issue with Ms Pullen's evidence in this respect, either as to its honesty or reliability, of course he could re-examine or seek leave to cross-examine. On the Crown case, whether Katrina carried a knife from the house was of critical importance and Ms Pullen's evidence in this regard was undoubtedly unfavourable to the prosecution. Ms Pullen being otherwise a credible witness with no suggestion to the contrary, her evidence on this matter should be accepted at face value in light of the way in which the prosecution dealt with it. For other reasons which I will discuss there is good reason at all events to accept that it is at least reasonably possible that her evidence was correct and Katrina was not actually carrying a knife. Be that as it may, Ms Pullen heard what she described as a scuffle outside but did not give any further relevant evidence.
10 Mr Marrett's evidence was that he accompanied Mr Durrant down the driveway when there was an exchange over the dogs although, as he recalled it, with a man rather than a woman. He said that there was some apparently insulting remark which he could not remember but to which Mr Durrant responded, "Why don't you come out here and say that, you drongo", that he and Mr Durrant walked on down the driveway when Mr Marrett was suddenly hit in the back of his head. (There is no doubt that he was hit by a Mr Duncan, to whose evidence I will shortly come. I interpolate, however, that Mr Duncan asserts that he does not actually recall attacking Mr Marrett but denies that he would have done such a thing. I prefer the evidence of Mr Marrett.) Mr Marrett said that he turned around and was punched in the mouth, splitting his lip. He then attempted to defend himself, grabbing the other man around the top of his head, pulling him to the ground and hitting him several times in what he said was self defence. Perhaps two minutes later he heard Mr Durrant call out, "Guy, I've been stabbed, call the ambulance". Mr Marrett looked up and could see Mr Durrant attempting to stand up and walking towards the house but when he got to the front porch, he collapsed. Mr Marrett let Mr Duncan go, ran over to his friend, jumped over him and went inside and called the ambulance.
11 The person Mr Marrett was fighting was Mr Adam Duncan. Mr Marrett said that he was on the ground holding onto Mr Duncan when he heard his friend call out and he had to let the man go to try to help Mr Durrant. From where he was he could make out Mr Durrant's figure and knew it was him but he was unable to make out his face. Mr Marrett was quite clear that he only let Duncan go when he heard Mr Durrant say that he had been stabbed. This, for reasons which will become clear, is an important fact. Certainly, Mr Marrett's evidence must be approached with caution: he was significantly affected by alcohol; the events occurred very quickly; he was himself involved in a fight; the aftermath was terrible. All these considerations must cast doubt on the accuracy of his account, at least in points of detail. On the other hand, Mr Durrant was his close friend, the words he spoke must have been shocking: it seems to me that, although there must be some uncertainty about it, it is very likely that he would remember what he was doing at the time when he heard them.
12 Mr Duncan had been attending a party at house nearby when he heard the argument about the dogs outside. He had been drinking during the evening but also had taken amphetamines and ecstasy. He said that he was affected by them. Amongst other effects, he found it difficult - at least in retrospect - to know which part of his memories was fantasy or truth. This adds a significant ground of uncertainty about the reliability of his account in addition to all the ordinary human failings of observation and recollection in circumstances such as these. When he heard the argument he went outside with Michael Nguyen and Jamie Hughes. He said that he could hear screaming mainly, I take it, from Katrina but he could not remember what she was saying. He said that saw Katrina running towards the fight. He could not remember how it happened but he remembers fighting with a man we now know to be Mr Marrett. He denied that he would have struck the first blow. He said that they were wrestling and punching on the ground and that his friend Jamie was also involved. He knew, as I understand it, there was another fight going on nearby but he did not see what was happening until he got up when the fight that he was involved in stopped. He said that he saw Frederick and Mr Sotiropoulos kicking "the guy" (meaning Mr Durrant), who was moving back and he saw Katrina standing behind him. He said that the man was on the ground attempting to stand up, Katrina was kicking him and then, "I'm pretty sure Katrina stabbed him in the [back of] the neck" and then Frederick and Mr Sotiropoulos ran away and Katrina ran up the street behind them. He thought he saw the knife snap and the blade fall to the ground. When he saw the stabbing, he was not quite five metres away.
13 In Mr Duncan's interview with police on 30 January 2007, he told them that he heard Katrina say as he and Jamie walked over towards Mr Durrant and I think, Mr Marrett, "I will stab you in the neck personally". Elsewhere in the record of interview he quoted the words as being, "You talk to me like that again, fucking dickhead, I will personally come around there and stab you in the neck" and that at that time she was waving a knife. At a later walkthrough, Mr Duncan said that Katrina had said, "You ever talk to my dog like that again I'll stab you in the throat". At that walkthrough, which was played to the jury, Mr Duncan showed how the stabbing occurred. Certainly, what he showed was fairly consistent with the wound as it was ultimately described on autopsy.
14 Not surprisingly, Mr Duncan was extensively cross-examined. I do not propose here to analyse his evidence in any detail. I am sure that on some occasions when he was uncertain about facts this was because of a failure of recollection perhaps induced by alcohol and/or drugs or perhaps simply by the ordinary failures of recollection. After all, the circumstances were themselves likely to give rise to confusion. Some of his asserted failures were, I thought, simply because he had decided he was not going to attempt to recall or give candid evidence. Overall, my judgment of his evidence was that he was in part reliable and in other parts unreliable and that he was not really attempting to take seriously and conscientiously the task of giving truthful evidence. In the main, this conclusion relies on his actual evidence but also, to a significant extent, on his demeanour. I concluded that it was not possible to accept with any real degree of confidence any part of his evidence that was not independently supported. In particular, I am not prepared to accept his evidence that he actually saw Katrina with a knife or saw her stab the deceased although it is possible that at this point and, perhaps, even when he spoke to police, he believed that he had seen that happen.
15 I will shortly come to further evidence which suggests that Mr Duncan's account is unreliable quite apart from its inherent difficulties but I note at this stage that, following the stabbing, Mr Duncan ran back into the house where he had been, with blood running down his face, and demanded the keys to his host's car so that he could drive home or that his host should drive him home, threatening irrationally that he would smash the car up and take the car keys. She said that he was very angry and when asked what had happened, he said "Steve stabbed someone across the road at Greg's house. I jumped in and started hitting the guy with Steve, let's go, let's go, let's go". This must have been Steven Sotiropoulos. In my view, this is critical evidence. It shows that Mr Duncan's first memory, given perhaps only seconds after the actual event, was not that Katrina had stabbed Mr Durrant but that it had been done by her partner. Furthermore, that he, Duncan, had been hitting "the guy with Steve". It seems that it was only when, some days later, he spoke to police that he then asserted it was Katrina whom he had seen stab Mr Durrant. This evidence strengthens, indeed requires, the conclusion that Mr Duncan's identification of Katrina as Mr Durrant's killer is unreliable.
16 Two other pieces of evidence also undermine the reliability of Mr Duncan's account. He said several times that he saw the stabbing occur only after Mr Marrett had let him go because it was not until then that he was in a position to see what was happening in the other fight. As I have already pointed out, Mr Marrett was quite clear that he heard his friend say he had been stabbed whilst he was still wrestling with Mr Duncan and holding him on the ground. The other piece of evidence comes from Mr Nguyen who, perhaps alone of all the witnesses, was not affected either by alcohol or drugs. It is unnecessary to set out his evidence in detail. It is sufficient to say that he observed the fight in which Mr Durrant was involved and in particular saw Katrina who, as it happened, demanded that he should get involved to help, one assumes, either Frederick or Mr Sotiropoulos. He said that he saw Katrina clearly, that he was something like two metres away, although it was dark and, to the question, "The one thing you can say about the view you had of her then, she did not have a knife - true?" he answered simply, "Yes." The Crown prosecutor did not seek, either by re-examination or by seeking leave to cross-examine, to test Mr Nguyen's unqualified evidence in this respect. He was content to allow that evidence to go to the jury although he submitted to the jury - and I am doubtful about the propriety of such a submission in the circumstances - that they would not accept Mr Nguyen's evidence. In my view, there was no reason, so far as the evidence went, which justified a rejection of his evidence. Nor did the prosecutor suggest, by attacking Mr Nguyen's opportunity for observation, reliability of memory or the like, any basis for contending that this evidence ought not to be accepted. To my mind, Mr Nguyen's evidence was forthright and candid. He had no reason for misstating his evidence and he was in the position of a curious bystander (as odd as that might seem) rather than as a participant. In my view, Mr Nguyen's evidence on this point should be accepted, all the more so since the prosecutor did not attempt to test it in any way.
17 It is worth observing, I think, that the description of events given by Mr Nguyen and Mr Hughes so far as physical proximity is concerned, is inconsistent with Katrina having been physically involved at any time in the attack upon Mr Durrant.
18 Important independent evidence was given by Mr and Mrs Cross, who lived diagonally opposite the driveway down which Mr Durrant and Mr Marrett walked and at the end of which the fights took place. Mr and Mrs Cross were in the bedroom of their house, which fronts onto the street. As it happened, Mr Cross heard Mr Durrant and Mr Marrett getting out of the taxi on their way home and having an argument about who was to carry the beer. He got up, and looking out of the bedroom window, saw the two men get out of the taxi and walk down the driveway. He heard a dog bark and one of the men told the dog to shut up. A light came on in a nearby house and some people came out. Mr Cross thought there were about three or four of them and he heard a woman's voice swearing at the men. There was an exchange which culminated a few seconds later in the woman saying, "I'll stab you in the fucking eye". As I understand it, Mr Cross thought it was just an argument about a dog and went back to bed. Mr Cross was quite certain that he heard "eye" and not "neck", although he could not understand any other words that were said aside from the threat. Mrs Cross did not get out of bed to look at what was happening but she also heard the threat that Mr Cross heard. It is perhaps a peculiarity of concentration that no other witnesses heard this threat except, assuming that Mr Duncan had mistakenly recalled it, Mr Duncan. In particular, neither Mr Marrett nor Mr Nguyen heard it. It is, of course, possible that there were two threats, one heard by Mr Duncan and the other by the Crosses, but this strikes me as unlikely. The difference between the accounts may be explained by the ordinary fragility of human perception and recollection. For obvious reasons, the Crosses are more likely to be reliable but it is impossible to be certain about this.
19 A significant difference in the accounts is not so much that, according to Mr Duncan, the threat was to stab in the neck while, according to the Crosses, the threat was to stab in the eye but that, according to Mr Duncan the threat was not immediate but was to stab if the conduct of the person who was being addressed was repeated. If there were such a qualification it was not, it seems, heard by the Crosses. Mr Duncan's account is more consistent with Katrina not having a knife at the time, the threat being directed at a repetition of the provocative conduct, while that of the Crosses certainly strongly suggests that she did have a knife. In light of all the evidence, however, this suggestive conclusion is not sufficient to my mind to prove beyond reasonable doubt that Katrina in fact held a knife or that she stabbed Mr Durrant or actually intended that he should die or suffer grievous bodily harm. At all events, the words were undoubtedly a threat to cause a serious injury with a knife; they were spoken by Katrina and demonstrate that the possibility of causing very serious injury had occurred to her.
20 For these reasons, I have concluded that, so far from it being established beyond a reasonable doubt that Katrina either carried or wielded a knife it is very probable that she did not. Certainly, there is at least a reasonable doubt as to the matter. It follows that I am obliged to sentence Katrina on the basis that she did not inflict the fatal wound. Furthermore, I am unpersuaded that Katrina herself intended that Mr Durrant should be killed or suffer grievous bodily harm or believed that Frederick had such an intention, although I am obliged by the jury's verdict to sentence her on the basis that she adverted to the possibility that Frederick might (at least) intentionally inflict grievous bodily harm.
21 The Crown prosecutor made it clear to the jury that the Crown case so far as Mr Sotiropoulos was concerned, depended entirely upon the evidence of Mr Duncan as to his physical attack on the deceased and if the jury had a reasonable doubt about that evidence, he could not be convicted either of murder or manslaughter. The jury's acquittal of Mr Sotiropoulos meant that it was not satisfied to that degree of Mr Duncan's evidence. If the jury was not satisfied of Mr Duncan's evidence one naturally asks how it was that Katrina was convicted of murder. I do not propose to enter into speculation about this except to note that it was open to them to convict on the basis that Frederick inflicted the lethal wound and that, at that time, she was encouraging him by way of herself attacking or otherwise encouraging him to attack Mr Durrant. It may be that the jury regarded the threat that was yelled out by her as amounting to such support and indicating at least an advertence to the possibility of an intentional infliction of grievous bodily harm. So far as this part of Mr Duncan's evidence is concerned, it is supported by independent testimony.