1 HIS HONOUR: On the morning of the 12 August 2001, Dr Lyons, the Director of Forensic Medicine for the Hunter region was called by police to a property at 48 Frame Drive, Abermain. There he found the deceased, Jason Phelps. He was positioned on a bed in a small enclosed veranda in the front of the house. Dr Lyons made a preliminary examination and later carried out a post-mortem on the body on the 14 August 2001.
2 At post-mortem, Dr Lyons found that the deceased had died as a consequence of a stab wound in the left chest area directly above and to the outside of the left nipple. The wound was about 19mm in length and somewhere between 100-140 mm in depth. He thought the wound was consistent with a knife wound. He in fact inspected two knife blades that were found inside the premises. It was his opinion that the knife had passed through the skin, the fat and muscles of the chest wall and passed into the chest cavity between the two ribs. It then passed into the side wall of the heart, that is it went into the left ventricle and pierced the wall of the heart. As a consequence of that injury there would have been a large amount of blood draining out of the heart into the chest cavity. He thought the victim would have lost consciousness within a relatively short space of time, perhaps a minute or two, and died subsequently.
3 There was a second wound in the upper left abdominal area where a knife had passed through the skin of the stomach, the underlying muscles of the stomach wall and pierced part of the large bowel.
4 At the time of the fatal wounding, the deceased had been on the bed in that room with Mrs Elizabeth Lynch. She had been taken to hospital before Dr Lyons arrived. She was also wounded in the attack but later recovered. It appears she was stabbed in the chest and as well she cut her hand and received a cut on her left knee in the fracas.
5 The prisoner, Kevin Lynch was charged on an indictment containing two counts. The first was that he did on 12 August 2001 murder Jason Phelps at Abermain. At the commencement of the trial, on 22 July 2002, he pleaded not guilty to this charge but guilty to manslaughter. At that time, the Crown did not accept the plea. In relation to the second count, namely that on 12 August 2001, he did maliciously wound Elizabeth Lynch with intent to do grievous bodily harm to her, the prisoner pleaded guilty. That matter has remained in abeyance while the trial proceeded.
6 On Friday 25 July 2002 the prisoner was re-arraigned and once again pleaded not guilty to the murder charge but guilty of manslaughter in relation to the death of Jason Phelps. On this occasion, the Crown accepted the plea in satisfaction of the indictment. The prisoner was accordingly convicted of manslaughter on that day and the proceedings were stood over until 18 November 2002 for submissions on sentence.
7 Following the conclusion of submissions on sentence the prisoner was further remanded in custody until today for the passing of sentence.
8 The maximum penalty for the crime of manslaughter is 25 years. The maximum penalty for the charge in the second count of maliciously wound with intent to do grievous bodily harm is 25 years.
9 The partial defence which had been pursued on the prisoner's behalf during the trial was that provided in the s 23 (1) of the Crimes Act 1900 as amended. This was that the act causing death was an act done under provocation. It is clear that this was the basis on which the plea of guilty to the charge was proffered and it was the basis on which it was accepted by the Crown.
10 It is necessary for me now to state the facts I have found. May I say immediately that I am perfectly satisfied beyond reasonable doubt that the killing of Jason Phelps was an act done under provocation and in circumstances where the prisoner had lost his self-control and was induced to that state by the conduct of the deceased towards him.
11 The genesis of the tragic situation which developed on 12 August 2001 lay in the troubled relationship between the prisoner and his wife, Elizabeth Lynch. They had been living together in a de facto relationship as man and wife since about 1991. hey were in fact legally married in 1998. There were three children of the relationship aged at the present time approximately 10, 5, and 3.
12 Elizabeth Lynch was of Croatian extraction. Her mother Marija Serbedjija arrived in Australia in about 1950. She and her husband had a number of children, one of them being Elizabeth Lynch. The parents bought the property at Frame Drive, Abermain about 30 years ago and later moved in to an old dwelling on that property. It was there that Elizabeth Lynch met Kevin Lynch who later moved into the property with her.
13 In more recent years a new house had been built on the property so that, somewhat unusually, there were two houses on the property, a new and an old. The prisoner, his wife and his wife's mother together with the children moved in to the new house in about the beginning of about 2001 leaving the old house unoccupied.
14 By that time the marriage between the prisoner and his wife was virtually at an end. Although they continued to share the house with their children they slept in separate rooms and had done so for a considerable period of time. By August 2001 it seemed the only thing that kept them living under the same roof was the fact that they had not come to a final arrangement in relation to the disposal of the marriage property. It seemed to have been the mutual intention that once those matters were resolved the prisoner would leave for good although of course he intended to maintain his relationship with the children.
15 Elizabeth Lynch regarded herself free to have relationships with other men if she wished to do so in the period of time prior to August 2001. From her perspective, she and her husband were "in a separation ready for divorce." In fact, she entered into a relationship with a local man, one Peter Masterman. She stayed at his home on alternate weekends while Kevin Lynch looked after the children. It seems that this affair caused the prisoner humiliation and distress. From his perspective, although he accepted that the relationship was over, he did not want his wife to have affairs with other men while he was still living in the house. This may have been partly because of his own humiliation, but there was also concern for the children and their reaction to such a relationship.
16 Elizabeth Lynch had known the deceased for about 5 years prior to August 2001. A few weeks before the death of the deceased, she met him again at a party at his mother's place. The mother's name was Magdalena Brown. Elizabeth Lynch was also friendly with the deceased's sister, whose name was Christine Henry. She stayed at this party for 2 nights and on the second night she slept with the deceased, that is she had a sexual relationship with him.
17 Elizabeth Lynch insisted that there was only this one sexual encounter between herself and the deceased. She maintained her friendship with him after this encounter however but she did not sleep with him a second time. It appears that the prisoner shortly afterwards confronted Elizabeth Lynch with the accusation that she had slept with the deceased. She denied this but later it appears that the prisoner was informed of the sexual encounter by another person. Again the prisoner was humiliated and distressed by this incident; again he took the attitude that he did not wish his wife to be in a physical relationship with another man until the house was sold and they had each gone their separate ways.
18 There was a subsequent party at Magdalena Brown's place. On this occasion, after the consumption of a fair amount of alcohol, Elizabeth Lynch ended up in the same bed as the deceased and also her son Caleb. The prisoner arrived at the house and demanded to take his son home with him. It seems fairly clear that he suspected that a further sexual encounter was likely to take place between his wife and the deceased on this occasion although Elizabeth Lynch maintained that this simply did not happen. She stayed the night with the deceased and his family after the prisoner had left.
19 On 11 August 2001 a barbecue was organised at 48 Frame Drive, Abermain. Those who attended were the deceased, his mother Magdalena Brown, his sister Christine Henry and a mutual friend Caren Wells. The prisoner had gone into town to get some provisions for the barbecue at the time the guests were being invited by Elizabeth Lynch and Caren Wells. When he returned from his shopping task the prisoner encountered the guests who had arrived including the deceased. Also present at the barbecue were a number of children and Elizabeth Lynch's mother.
20 On the surface, it seemed as if all the participants were having a pleasant and carefree time. There were however obvious undertones of stress centering upon the prisoner's reactions to the relationship on that day between Elizabeth Lynch and the deceased. For example, during the afternoon the prisoner had a conversation with Mrs Brown. The prisoner told Mrs Brown that he was concerned that there was "something going on" between the deceased and his wife. Mrs Brown denied that there had been any occasion where the deceased had slept with Elizabeth Lynch. She tried to reassure him and tried to calm him down. It seems that during the day the prisoner spoke directly on the topic to Jason Phelps himself. He asked him not to have a relationship with Elizabeth, until at least the separation was complete. It appears he obtained no assurance from the deceased in this regard. It is necessary to say that a considerable amount of alcohol was being consumed by most of the participants at the barbecue. As well, at about 4 o'clock a decision was made to obtain some more beer and cigarettes from the local hotel. Those who went were the deceased, Christine Henry, Elizabeth Lynch and Caren Wells. While at the hotel, Elizabeth Lynch and the deceased had a drink together and played pool. The prisoner was not invited to come to Abermain with this group. It must have been apparent to him however as the afternoon progressed into the evening that his wife and the deceased were getting on quite well.
21 After dark, the party decided to continue their drinking at the Criterion Hotel at Weston. This time Kevin Lynch insisted on coming with the others and he in fact drove the car down to the hotel.
22 It is quite clear that while at the hotel Elizabeth Lynch and the deceased began to flirt openly with one another. It was noticed by Magdalena Brown, by Caren Wells and by Christine Henry. All three were uncomfortable with what they observed particularly the reaction it was having on the prisoner. Indeed, Mrs Brown said she actually spoke to the deceased and said that she was worried and that Elizabeth Lynch would be making Kevin jealous by what she was doing. According to her, the deceased defended his part in the flirtatious conduct by saying "well I'm not doing anything." Mrs Brown said that for her son it was "like water off a duck's back." He seemed quite happy with the role he was playing.
23 It is quite apparent that the behaviour of the deceased and Elizabeth Lynch in the bar, no doubt coupled with that which had happened earlier at the barbecue, brought the prisoner to a state of anger and resentment. In fact the prisoner again spoke to the deceased seeking an assurance as he had done earlier in the day. Again, no such assurance was forthcoming. At some stage the prisoner walked over to Elizabeth Lynch and had a heated conversation with her. He then picked up four glasses of beer which were on the bar counter and poured each of them over her head in turn. Elizabeth Lynch was completely soaked in beer as a consequence of these actions.
24 Other people in the hotel including the hotel staff remonstrated with the prisoner. He was told to leave. He very quickly left the establishment and in fact shortly afterwards drove back to 48 Frame Drive, Abermain.
25 The other members of the party stayed at the Criterion Hotel at Weston and continued drinking. Despite the significant amounts of alcohol that had been consumed during the afternoon and evening, when they left they purchased another carton of stubbies to take with them. The deceased had rung his brother in law Alan Henry and asked him to come and collect them from the hotel. Alan Henry said he had received a phone call at about 1.45 am on 12 August 2001 asking for a lift home. He went to the hotel and he picked up Elizabeth Lynch, the deceased, Magdalena Brown, Christine Henry and Caren Wells. He drove them back to 48 Frame Drive. In fact at Elizabeth Lynch's suggestion, he drove them up to the old house on the property. They arrived there shortly after 2 am. The old house was in darkness and it was necessary to reconnect the electrical supply at the fuse box before the party could recommence inside. A few more beers were consumed and at about half past 2 in the morning, Alan Henry left. He offered to take the deceased with him but the deceased indicated he wished to stay for the evening.
26 Shortly afterwards, sleeping arrangements were made in the old house. It is not clear at whose instigation but it certainly eventuated that after a time Elizabeth Lynch and the deceased decided to share the bed on the veranda. The light in the main room was left on. This threw enough light to provide some illumination of the fact that the deceased and Elizabeth Lynch were to be sharing the veranda bed.
27 To return now to an earlier part of the evening, when the prisoner had come back to the Abermain property after leaving the Criterion Hotel, he drove up to the new house. Mrs Lynch's mother said that she was sitting inside the kitchen when he arrived. He told her that he had poured beer over Elizabeth and that he had been insulted by the deceased. She said that in the kitchen while she spoke to him the prisoner was crying as he described to her what had happened back in the hotel at Weston.
28 At some stage perhaps a few hours later the lights had come on in the old house. It must have been then apparent to the prisoner that those who had been at the hotel had now returned home and had in fact driven up to the old house. He asked Mrs Lynch's mother about the keys to the old house. She told him that her daughter had them. Much earlier in the day Elizabeth Lynch had waved the keys in front of the prisoner and told him they were going to have a party to which he would not be invited. The prisoner was crying again in the kitchen when Mrs Lynch's mother told him that Elizabeth had the keys. He said that he was going over to the old house and Mrs Serbedjija warned him not to touch her daughter and not to make any trouble. She described the prisoner as crying continually at this time and she said that he took a knife from the kitchen. She thought he put it back when she told him not to take it with him. In the event, the prisoner left the house although it is not clear whether Mrs Lynch's mother saw him leave. Nor is it clear whether she saw that he was carrying a knife or knives when he left the house.
29 The fact is he was armed with two knives and it was clear that he was by now in a state of great distress when he made his way over to the old house. It must have appeared to him that his worst fears had been realised because the lighting in the house would have revealed to him as he endeavoured to gain entry that the deceased and his wife were together in the one room. In his record of interview he said that he could see Jason starting to get undressed and that Elizabeth Lynch was already in the bed. He walked further around the corner of the house and managed to get through a window as the back door was locked. This window gave access to the lounge room and from there to the veranda room.
30 It is difficult to know with absolute certainty what next happened. I am satisfied beyond reasonable doubt however that the prisoner had completely lost his self control by this stage as a consequence of the events of the day and those other events involving his wife and the deceased which had occurred at earlier points of time. I am satisfied beyond reasonable doubt that he had an intention to use the knife or knives to do grievous bodily harm to both the deceased and Elizabeth Lynch. I am not satisfied beyond reasonable doubt however that he had formed an intention to kill either of them at that stage. There is some evidence to support the more serious finding but overall I am not satisfied to the requisite standard that the prisoner ever formed an intention to kill either the deceased or Elizabeth Lynch.
31 In that state of anger, distress, humiliation, jealously and the like, the prisoner encountered the deceased and Elizabeth Lynch in the bedroom. I am satisfied that he was abusive towards them and that the deceased scrambled to the end of the bed in order to repel any attack. The prisoner struck the deceased with the knife and when Elizabeth Lynch attempted to intervene, struck her as well. It was in the course of this striking that he administered the fatal wound to the deceased and the second wound to his stomach. Similarly, the injuries sustained by Elizabeth Lynch were caused by the prisoner's use of the knife in the struggle.
32 Christine Henry came from the next room and joined in the fracas in an endeavour to subdue the prisoner. So did her mother Magdalena Brown. She in fact hit him several times over the head with a hatstand and in fact caused him quite a severe injury. At that point of time the prisoner desisted his attack, left the house and ran back to the new home. I n the meantime, the deceased had lapsed into unconsciousness and was in a very bad state indeed. There was a general air of hysteria throughout the whole house as it was apparent that the deceased had been very seriously wounded.