R v SC

[2011] ACTSC 34 (28 February 2011)










Supreme Court Act 1933 (ACT), s 68B

Crimes Act 1900 (ACT), s 12, s 13


Zecevic v DPP (Vic) (1987) 162 CLR 645












No. SCC 224 of 2008


Judge:              Higgins CJ

Supreme Court of the ACT

Date:               28 February 2011


                                                                        )           No. SCC 224 of 2008




















Judge:                                                              Higgins CJ

Date:                                                               28 February 2011

Place:                                                               Canberra




1.                  A verdict of not guilty be entered.


1.                  In this matter the accused has been charged on an indictment containing one count of murder.  I will not recite the indictment.  It is on the file and it has already been referred to.  She has elected for trial by judge alone pursuant to s 68B of the Supreme Court Act 1933 (ACT).  I must assume the role not only of trial judge but also that of jury, otherwise, the trial is conducted in accordance with the usual practice for a criminal trial as if there was a jury. 

2.                  I must remind myself of several principles before proceeding further.  The first is that the Crown bears the onus of proof and maintains that burden throughout the course of the hearing.  It never shifts to the accused.  The accused bears no burden of disproof or persuasion. 

3.                  The burden of proof is beyond reasonable doubt.  Any element of the offence of murder, or should the alternative of manslaughter be considered, rests upon the Crown to prove that element beyond a reasonable doubt.  I will not expand on what that means, it means what it says. 

4.                  The accused is also entitled to a presumption of innocence, and that is a real presumption, not merely a recitation of a legal principle.  Not only does it mean that the Crown bears the onus of proof and burden of proof, it also means that where there are competing inferences arising from the evidence, an adverse inference; that is an inference adverse to the accused, must not be drawn unless other evidence either excludes that favourable inference or the adverse inference is the only inference able to be drawn on the evidence. 

5.                  Murder is defined in s 12 of the Crimes Act 1900 (ACT) (the Crimes Act) and the elements of it are that first there be the death of another person which is caused by the accused.  It is not merely enough that death be caused and, I pause to note that, there is no issue about that in this case.  It must be caused with reckless indifference, in this case, to the probability of the causing of that death.  Again, in this case there is no issue as to that. 

6.                  I also note s 13 of the Crimes Act which provides for a partial defence of provocation, in the event that the conduct of the deceased person towards the accused was such that it could have induced an ordinary person in the position of the accused to have so far lost control as to form the reckless intent to murder, and to, of course, carry out that act. 

7.                  In this case there is also the issue of self-defence.  There is no issue as to the law in relation to self-defence.  Both the Crown and Mr Collaery for the accused are agreed that the principles are laid down in the case of Zecevic v DPP (Vic) (1987) 162 CLR 645. 

8.                  In relation to self-defence, it is necessary, for the defence to be accepted, that the accused did act in self-defence. That is to say that the accused genuinely acted in self-defence, not merely in pretended pursuit of self-defence, and, importantly, it was reasonable for the accused person to so respond.  It is not a defence upon which the burden lies on the accused to prove it, rather the Crown must exclude self-defence beyond a reasonable doubt. 

9.                  I also must remind myself that in this case the accused gave evidence and she was not obliged to do so, and I take account of that in considering and assessing her evidence.  The accused also, by giving evidence, assumes no burden of persuasion or proof. 

10.              I also note that, in this case, an issue was raised about the character of the accused and it does seem to be conceded that the accused is a person otherwise of good character and I must take account of that in assessing not only the evidence that she gave, and the weight to be attached to it, but also in considering whether it is likely that she would commit the offence with which she is charged. 

11.              The evidence in this case stretched over a number of days and I will briefly review it.  I emphasise that this is a brief review, I am not going to quote from slabs of transcript, indeed, there was little in dispute about the evidence itself. 

12.              I turn first to Detective Sergeant Jason Kennedy who gave an overview of the prosecution investigation and I will not recite all the exhibits which he sought to tender.  The only matter which arose out of his evidence which was of note was that there was, unfortunately, no triangulation on mobile phones at the time that led to the deceased’s location not being discovered as quickly as it might. 

13.              He did also refer to having taken a statement from Mr Jackson Groot, a cousin of the deceased, and that evidence was, and is, of some significance.  I will refer to that later. 

14.              Dr Michael Burke was the forensic pathologist who examined the deceased at post mortem and described the various wounds.  Again, there is no dispute about those wounds or the nature of them.  The essence of it is that one of the stab wounds referred to as injury ‘number six’ hit a vein and partially severed it. It was that severing which turned out to be lethal, the process being that the deceased suffered the inhalation of air into that vein which caused an embolism resulting in his death. 

15.              Dr Burke said he could not say from the wounds how the knife was actually held, although, it does appear that he was able to say, or able to demonstrate through the shape of the wounds, that it is likely, as Mr Collaery submitted, that the knife was held so the blade was upward rather than downward. 

16.              He found that there were some injuries to the knees which, in cross-examination, he agreed could have been in the course of engaging in sexual intercourse. 

17.              Mr Evan Roeterdink relevantly noted the presence of what I will call ‘pine needle debris’ on or about the deceased but, of course, I will bear in mind that the deceased was in no condition to brush himself down.  He noticed blood and dirt on the trousers of the deceased; mainly the lower left side and I note that this finding is not inconsistent with the deceased rolling off the accused, as indeed, she described it herself. 

18.              There was various botanical material that was collected and analysed and I will not got into that but there was also what has been called ‘the trail of blood’ from the scene where the events actually occurred, it would seem, up to the ABC Learning Centre. 

19.              I refer also to Constable Sam Norman’s examination of the crime scene.  He found lady’s underwear, sign of a disturbance, and a bag which turned out to be that of the deceased.  It was a Jim Beam bag, which contained three knives, and he tracked the blood trail which seemed to justify a conclusion that the deceased made staggering progress from where he was injured to where he died. 

20.              I refer now to Dr Vanita Parekh who was a forensic medical practitioner at the Canberra Hospital.  She prepared a medical sexual assault kit in respect of the deceased.  She examined the deceased at post-mortem and took various swabs.  She found an injury to his penis, relevantly, which she opined could be either as a result of suction or friction. For reasons which seem obvious to me, the latter is more likely than the first. 

21.              She was asked to consider an injury which had been found by Dr Denise Kraus to the accused.  It was a tear, in particular, to the vestibule.  She had not, of course, herself examined the accused so she did not seem to be aware of that at the time she gave her evidence.  She was not asked about the vaginal bleeding which had been found in respect of the accused. 

22.              It seems to me that the two injuries, if they are put together, offer no other explanation than forced penetration by the deceased of the accused. 

23.              Constable Ahmed El-Leissy was also assisting at the crime scene but adds nothing to the general picture that has been created. Nor, indeed, do Constable Bradley Prior, Constable Leigh Bishop or Sergeant Hall O’Meagher. 

24.              There was surveillance footage which had been taken from various surveillance cameras around Green Square and Top Cat Dry Cleaners (Top Cat) which had been prepared by Mr Moustapha Jbeili and all of that footage was, indeed, played.  The only relevant observation that needs to be made about it is that the Filthy McFadden’s Irish Pub (Filthy McFadden’s) surveillance was a little out in terms of it’s time.  It does seem that there was the surveillance footage of Mr Anderson, just off Jardine Street, outside Top Cat, where it appears that he is making a phone call and it does seem very likely that that is the phone call to Mr Groot which was referred to, of which evidence was given, albeit, indirectly. 

25.              Ms Rhiannon Waldon-Smith was a person who had known the accused in 2007 and subsequently.  They were in text communication.  She did say that when they actually had a relationship together, at that time, the accused was known at times to sleep with knives.  She had been bullied and had some concern about self-defence.  She had complained that her step-father and grand-father had sexually assaulted her and she took a phone call from the accused on the evening, which was the evening before the death of Mr Anderson, 31 August 2008, from a taxi in which the accused was a passenger. 

26.              She gathered from that phone call that the accused was in the taxi with a male person.  There was a sexual conversation, she agreed, and she also said that nothing was said about the male person except she did SMS the accused to say “Tell him to fuck off and get out”, that is to say she should get out of whatever situation it was. 

27.              The accused later offered the construction of her dealing with that person who was obviously Mr Douglas Wolstencroft that “He was going to rape me”.  Having regard to all the circumstances, that probably was an overreaction but it may have been reasonable for her to fear that and I have no doubt that her fear was genuine. 

28.              I say that because the various SMS messages she sent out well before the death of Mr Anderson, justify that conclusion and certainly there would be no reason at that time to have given a false account of her own state of mind. 

29.              The night before the event with Mr Wolstencroft there was a meeting between herself and Mr Matthew Windle.  The part of that that seems to have attracted attention was the fact that she had said “If someone tried to rape or bash me I would stab them” and that was in connection with a knife and nun chucks which she had in her bag at the time and which she showed Mr Windle. 

30.              Mr Nicholas Brown was there at the time and said to her, “Put them away”, and she did.  She said that to make it clear that she was not seeking to have sex with anyone, certainly not with Mr Windle, and would resist any attempt to force her to do so, with weapons if necessary. 

31.              Mr Windle agreed that he was told by the accused that she was a lesbian, she was not dressed provocatively and he said that he was not in the course of his interaction with her attempting to, as he put it, “Hit on her.”  It does seem with respect that that is a fair conclusion. 

32.              Mr Wolstencroft was the next witness giving evidence about the next evening and he is seen, of course, on various points in the CCTV surveillance of Filthy McFadden’s.  He obviously was drunk and he was also attempting to strike up an acquaintance, if I can put it that way, with young women including the accused.  In fact, he agreed in his evidence that he had been drunk. 

33.              He is seen on CCTV leaning over to kiss the accused, although it might be described more as a peck than a passionate kiss or embrace.  He does embrace her tentatively. 

34.              He said they exchanged telephone numbers.  I note there that that does not seem to be an unusual practise amongst people who frequented Green Square at the time.  Almost everybody seems to have done it, almost like shaking hands. 

35.              His perception was that they jumped in the taxi that arrived, fortuitously, as they did not call for it, and went to his address in Tuggeranong.  Within the car he said there was a phone call from the accused’s girlfriend from Queensland. 

36.              At his place, they went inside.  The accused saw his car.  She asked to drive it and they were only there for perhaps 20 minutes, maybe half an hour.  Nothing sexual took place.  He did, however, as he again frankly conceded, think that there might have been an occasion for him to have sex with her.  He said he learnt that she was a lesbian so they just “hung out”.  It is not quite clear to me whether that was all in that order or whether, notwithstanding, he learnt that she was, or assumed that she was, a lesbian that he, nevertheless, if the occasion arose, hoped to have sex with her.  I suspect the latter. 

37.              The accused and Mr Wolstencroft drove, first of all, to the lookout at Point Hut and then to Parliament House and then to the units in which the accused was staying in Barton. 

38.              It was put to Mr Wolstencroft that there was certain behaviour on his part that he engaged in in the taxi.  I will come to that in a moment.  I note, however, that his perception of the arrival at the Barton complex was that the accused declined to permit him to enter into the premises, although he did agree that he was in the basement and he said that he simply said, “Sweet, no worries” and left. 

39.              He denied any assault or bruises or occasion to bruise and denied that he forced his attentions on the accused.  He agreed in cross-examination that he found the accused to be an attractive looking person.  He conceded he would have tried to kiss her if she had let him.  His perception was that she had agreed to come to his house and, as he put it, he did not think she was coming just for the company. 

40.              He did not recall any argument with the taxi driver regarding his seat belt and, indeed, did not even recall asking her to get in the back.  He denied that he grabbed the arm of the accused.  He had no recollection of the Caltex Service Station at Hume.  He denied that he was in any way angry during the journey, which is in contrast, of course, with the evidence of the taxi driver, and he conceded that he did not recall the taxi ride at all.  He denied specifically that he smoked “a cone”, which I assume to mean a cone of marijuana.  He alleged that the accused asked him for an ecstasy pill.  He said he had none and he agreed, as indeed would have to be the case, that he gave directions for the taxi to go to his place. 

41.              Curiously enough, he agreed that the accused left with a T-shirt of his but made the point that she did not steal it.  He was also unaware that the accused had left his keys in his car in order to get rid of him. 

42.              Mr Jason Shields, the taxi driver, however, gave a different account of the journey from Filthy McFadden’s to Isabella Plains.  He agreed it was the male who gave him instructions but said there were two stops, one was at the BP Service Station, which is theoretically in Griffith but is in fact known as the Kingston Service Station, and then at the Caltex Service Station at Hume along the Monaro Highway. 

43.              Mr Shields said the accused was already speaking on the phone when she entered the taxi and his perception of the male’s conduct was that he was trying to kiss her and she was ignoring him.  He would not put the seat belt on.  The accused was engaged in a conversation which contained, what he thought was, a lot of sexual innuendo and it was Mr Wolstencroft who intervened in that conversation with some crude remarks.  He was clearly under the influence and in his view the male was not merely under the influence of intoxicating liquor, although, it must be emphasized that that is hardly an expert opinion. 

44.              Mr Shields recalled that they both went to the service station on the Monaro Highway and his statement at that time was that they both got in the back seat.  I have to say that I do not accept that.  It seems to me that the accused got in the front seat again and Mr Wolstencroft in the back.  It certainly seems to have been the most likely outcome and indeed, Mr Wolstencroft, in cross-examination, referred to the fact that he had only recently recollected that particular fact.  It does seem that he persuaded himself of it after talking to prosecutors. 

45.              In cross-examination, he added that not only was the male abusive but he, the taxi driver, feared that he would be violent and I think that adds some weight to the accused’s concern about Mr Wolstencroft.  He did concede that his recollection about the accused getting in the back seat was perhaps faulty. 

46.              Mr Richard Seddon was an ambulance officer who attended a ‘000’ call.  He had also received a ‘000’ call from Mr Anderson.  He heard the ‘000’ call from Mr Anderson which was played in court.  It was very muffled and, for obvious reasons, and there was an attempt made to try and locate where the call had come from but information was not forthcoming.  As I have mentioned already, there was no triangulation available to enable ambulance officers to pin point the phone as opposed to find out the subscriber to the phone service. 

47.              Crime scene examiner, Mr Benjamin Lamont, found the knife that was apparently the weapon used by the accused in the gutter outside the Telopea Park Motor Inn.  I do not think anything needs to be said about that except, of course, it was taken for examination. 

48.              Mr Paul Anderson, the deceased’s father, also gave evidence.  He gave some background to the deceased himself; that he was left handed and that he was wearing chef’s trousers and a jacket on the night of 31 August 2008.  He gave some evidence about some phone calls that were received during the day which ended up with the deceased apparently deciding to stay in Green Square rather than get a lift home and finally being advised to grab a taxi because Mr Paul Anderson did not feel it appropriate then to go and pick him up. 

49.              He did say that he disagreed with the diagnosis which had been given to the deceased of Attention Deficit Disorder and said that at the time immediately before his death he had seemed settled and he had obtained employment. 

50.              Mr Paul Hitchman is the paramedic who attended at Telopea Park Motor Inn and found the accused there.  She was apparently anxious and agitated and swearing about her attacker.  There was blood on her jeans that has been not only photographed but also been subjected to analysis. 

51.              She had a wound on her leg which he inspected, a small wound, an incision above the right knee which was obviously a stab wound.  She complained of being sexually assaulted.  She said she had been attacked and stabbed with her own knife and then stabbed her attacker as he fled.  I do not take that as being a precise account of it but, nevertheless, it essentially refers to what her complaint at that time was. 

52.              He said that later on she seemed to be much calmer and said something to the effect, as he recalled it, “Why can’t I meet a nice man like you?” or at least, something to that effect. 

53.              He said at that time the patient seemed calm and relaxed and not resistant to contact, that was, of course, while she was being treated.  She was very upset, as he conceded in cross-examination, about the person who had assaulted her. 

54.              Dr David Lamond gave evidence of attending the accused in the Emergency Department and he described the wound as being one which would be sustained if the leg had been straight at the time when the knife was stabbed into it.  He agreed there was no stab mark on her pants which would imply that they were off the accused at the time.  He said that she had complained that the deceased was sitting on her chest and he asked about what happened to the man she had stabbed.  She said she had stabbed him in the chest, but said, “He’s fine” and that, of course, is in accordance with what she said about him running off after he had sexually assaulted her; he seemed to be fine. 

55.              The accused was asked if she had been sexually assaulted and she said, “No, man, I’m fine” and I do not place much weight on that.  For two reasons, firstly; it is not uncommon for a victim of sexual assault not to wish to discuss it immediately.  Secondly; as the accused suggested, she would rather talk about it with a woman rather than a man and she did, in fact, make complaints about having been sexually assaulted to a woman on a later occasion. 

56.              The wound, of course, could not yield much information because needless to say it had been cleaned so you would not be able to tell from the wound itself whether the knife, when plunged into her leg, contained the blood of the deceased in addition, of course, to her own. 

57.              Dr Kraus’ evidence was quite significant.  She found, in effect, that not only had the accused been subjected to sexual intercourse but that it had been intercourse which had created not inconsiderable injury to her, which she agreed was consistent with an injury which might be inflicted by a hard penis.  She also conceded that it was consistent with intercourse that had taken place whilst she was unwilling to have it.  In other words, it is consistent with forceful sexual penetration, not with any other alternative. 

58.              She did not notice, however, a scratch on the accused buttocks, of which the accused later complained, but agreed that she could have missed it. 

59.              Constable Cameron Watts was one of the police officers who attended outside the Motor Inn and her complaint at that time was that she was stabbed by a man she had met, “A nerdy guy” as she put it, who she had met at Filthy McFadden’s who had offered to walk her home.  I pause to note at that stage that it was he who had offered to walk her home.  He had pushed her down, and again, this is before she had time later to collect her thoughts, said, “He put his cock inside me”.  That is quite clearly a complaint of sexual attack. 

60.              He ran off towards the shops and she said she had a knife which she pointed to in the gutter, which had been given to her because she had to walk home by herself.  Consistently with Mr          Nicholas Brown’s testimony, she did not say that she had asked for it. 

61.              She gave some account to Constable Watts about what she had had to drink.  She said she had had four pints.  She thought she could trust Mr Anderson and referred to the attack having taken place near a tree, ten metres from a drain. 

62.              Constable Byron Wright was another Constable attending.  He did not think the accused was upset at the hospital.  She did say something about stabbing the deceased twice, and had blood of his upon her hands. He did see that she became upset and angry and her demeanour tended rather to fluctuate. 

63.              Ms Zahra El-Senussi had worked at Figaro Restaurant, the restaurant at which the accused was then working.  I mention that that restaurant of course is under the same ownership as B Bar, which is an adjacent drinking establishment.  She had noted that the accused had told her and shown her that she had bought some nun chucks because, and this is her recollection of what the accused told her, “She often gets scared of walking home at night”. 

64.              She did, as did some others, offer the view that it was not safe to walk home at night between Kingston and where she lived.  She saw the accused two or three days later, that is after the incident in question, and the accused complained that she had been stabbed and raped. 

65.              She said she had been drinking at Filthy McFadden’s and asked a guy to walk her home, that is her recollection of what was said.  He tried to rape her, she got her knife, he got it off her and then she got it off him and she stabbed him.  Again, this does not purport to be a complete and detailed account of what took place but it does seem basically consistent with what the accused said in more detail that happened. 

66.              In cross-examination, she agreed that although she was pretty sure that the accused had asked him, the deceased, to walk her home, it could have been “He offered to walk me home.”  I think the latter is more likely in fact. 

67.              Mr Eric Meredith was a person who was in a relationship with Ms Olivia Boyle and he went to an art exhibition on 29 August 2008, where he met the accused.  He struck up a conversation and got an SMS on 30 August saying “You should come up to Filthy’s.  There’s this guy who won’t leave me alone.”  I do not know if that is a reference to Mr Windle or someone else.  It is a little difficult to draw any conclusion about that. 

68.              On 1 September 2008, Mr Meredith got a telephone call from a female person which said “He stabbed me, he stabbed me in the leg.  That guy stabbed me in the leg.”  It is not quite clear what assistance that would be but in any event that is what he said. 

69.              Ms Boyle gave evidence to a similar effect.  She had been at the art exhibition.  She had been aware of the accused having the nun chucks in question. The accused mentioned that it was acceptable for self-defence. 

70.              It is obvious from this that the accused was, at about this time, clearly worried about being attacked.  It does not, however, mean that she was out inviting an attack so that she could use her weapons. 

71.              Mr Brown gave some quite significant evidence.  He was the bar manager at Filthy McFadden’s and one must assume , and this does seem to be the fact, that he was in a position where he was certainly sober during the evening and was able to observe, as indeed was his duty, the sobriety of the customers.  Whether he carried out those duties very effectively is another matter but, nevertheless, that was his job. 

72.              He had seen the accused on a few occasions.  First of all on 28 August 2008, it would seem.  He met her at B Bar, and he was made aware by her in conversation that she identified as lesbian.  On 29 August he met her again and he was with, I assume, his girl friend or partner, and his recollection was that she, that is the accused, joined them and showed him a knife which she called a peeling knife and he saw nun chucks in her bag.  He did tell her to put it away.  She may have said something about self-defence and she did mention something about martial arts or boxing. 

73.              On 31 August 2008, he remembers a male person in chef’s pants coming into Filthy McFadden’s.  He purchased a beer and Mr Brown thought he looked ‘borderline’.  I take that to mean ‘borderline’ as to whether he was too intoxicated to be served alcohol but he thought he was okay to have another. 

74.              He believed that the accused was 19 years old.  Obviously he did not do any identity checks because the accused was, of course, 17 at the time.  He thought she was okay so far as her sobriety was concerned.  He called ‘last drinks’ and at about that time on the CCTV he is shown as doing so.  He recalled the accused unlocking the rear door and exiting with Mr Anderson.  Mr Anderson was unsteady on his feet at the time. 

75.              Shortly after that, the accused came back and it is then apparent that he goes out with the accused to the front of Filthy McFadden’s into Green Square and engages in a search.  That is obviously for the knife that the accused by then had realised she had lost. 

76.              The accused said to him that she had lost her protection knife.  She seemed a little agitated.  He, when they went back into Filthy McFadden’s, saw a paring knife in the kitchen and said, “Would you like something to walk home with?”  It was a small knife, I suppose he thought it was relatively harmless, and she put it in the waist band of her pants. 

77.              The significance of this, of course, is that it is clear from Mr Brown’s evidence that the accused was offered the knife and she did not ask for it.  Quite clearly, if she had it in her mind, at any time up until then, any thought of enticing someone into a situation where she could stab them, that was totally inconsistent with that. 

78.              She did leave saying to Mr Brown that if the knife was found “let me know, you know where I work”, and he emphasized again that he had offered the knife to her and she had accepted it. 

79.              Mr Brown said he knew where she was walking to, or across.  It was not in his view a safe area and he would be concerned for her safety which is why he gave the knife to her. 

80.              Mr Jake Rivers provided a statement.  His evidence was not controversial but he saw Mr Anderson around 9.30 pm and took the view that he was then intoxicated but very jovial.  

81.              Mr Jonathon Noakes had been to the Kingston Hotel and then to Filthy McFadden’s.  He was playing darts and the accused introduced herself to him.  There was a young man who came up and sat down with them and chatted.  That was apparently, and it appears on the CCTV to be so, Mr Anderson. 

82.              He said something about him meaning, or having intended, to work but had missed the shift when he was sitting next to the accused.  They introduced themselves to each other and showed off their respective tattoos.  She drew a tattoo on his left forearm.  Again, this is seen quite clearly on the CCTV. 

83.              He said they were talking like they had just met and again that does not seem controversial.  She said she was a lesbian and had a girlfriend, again, there is nothing controversial about that. 

84.              Mr Jackson Groot is the cousin of Mr Anderson and his recollection is that he received a phone call regarding a girl ‘hanging round’.  Mr Anderson said, “I tried to buy her a drink but she didn’t want one.”  That was his recollection.  He had obviously been drinking.  At approximately 1.44 am on 31 August 2008, he got another phone call from Mr Anderson in which he said he “Was about to be in a bit of a fight but don’t worry.”  It seems to me that that phone call, which I accept occurred, is consistent with Mr Anderson having formulated an intention in his mind to attempt to have sex with a person he thought would be an unwilling participant and, for that reason, it was he who asked the accused if he could escort her home. 

85.              Mr Darren Veraar was Ms Meredith Swinbank’s partner at the time.  They had agreed to take the accused in to offer her temporary accommodation.  It was never going to be a permanent arrangement but certainly it was an arrangement which they had agreed to make.  There was an issue about rent and as at the time when these events occurred, 31 August and 1 September 2008 there had been, I suppose, an ultimatum. That may be putting it a bit highly, but certainly it had been intimated to the accused that she would have to leave.  He said he did speak to her, also, about getting home from where she worked and had warned her not to walk through Telopea Park as it was dangerous and he was asked, in cross-examination, about a push bike being lent to her.  He said that he referred to Telopea Park as ‘rape park’, and that he described the accused as, “Young, loud and immature”.  She had brought home a female once but that was all. 

86.              This is enough to support a proposition that the accused was, or at least should have been, wary about walking home in the dark through that area and it does seem consistent with her not having any plan to bring a male home. 

87.              I refer now to Ms Sarah Carberry who was out with friends on 31 August 2008 at Filthy McFadden’s at about 10.00 pm.  She recalls a showing of the tattoos when Mr Anderson joined the table and she remembered ‘last drinks’ being called.  In cross-examination, she agreed that the accused had told her that she had a girlfriend and, indeed, had gestured for her to sit on her lap at one point. 

88.              She said she had had, at least, five drinks.  She thought the accused was outgoing and affected by liquor but not drunk. 

89.              I refer now to Ms Mardi Scanlan.  She, again, was a person who was present at that time.  Again, she recalled the accused identifying herself as a lesbian.  She cannot recall Mr Anderson saying anything about that, although, he was present at the time when it was said.  She assumed that the accused and the deceased worked together and knew each other.  There did not seem to be any strain in their relationship or in their relating to each other.  She detected no unfriendly issue. 

90.              I infer from that that there was certainly no evidence of any pre-existing hostility, certainly not by the accused towards the deceased. 

91.              Ms Swinbank, who I suppose could be described as the accused’s landlady, told her of the conversation she had had with Ms Danielle Storey, with a view to providing accommodation for the accused.  The accused had been given a car but it was parked in the underground car park at the complex.  The registration had expired and consequently the accused did not use it.  She did agree that the accused had a number of knives and she realised that they were collectables so was not alarmed by them.  She did say something about the accused having said to her that she would beat up guys when drinking and had not remembered what had taken place.  It is not clear to me exactly what that referred to.  It may have referred to one, or other, of the events of which the accused gave evidence but clearly is not entirely precise as to the subject of it. 

92.              She did recall conversations with the accused where the accused had said that she had not been treated well when younger.  She believed that the accused did not think favourably of a lot of men.  She said on one occasion that the accused told her that she had thrown up when a sausage was referred to as a penis. I am not sure whether that was something that happened every time that kind of conversation might have been mentioned, but certainly she recalled one occasion when it was referred to. 

93.              On the afternoon of 31 August 2008, there was a conversation in which the accused was asked or told that she would have to move out.  There was a number of reasons given for that.  There was a six week limit on guests in the town house, she did not like having a house mate anyway, and told the accused it was time to move out as soon as possible. 

94.              On the preceding evening, 29 August 2008, the evening in which the accused interacted with Mr Windle, she had had it reported to her by the accused that she, the accused had been drinking with a male and almost raped.  Quite clearly, that was an exaggeration. 

95.              On 31 August 2008, the accused had told Ms Swinbank that the man with whom she had been with in a taxi, that is obviously Mr Wolstencroft, had tried to climb over to the front and bruised her.  She saw a bruise to the neck and, whether he was actually trying to climb over or simply was trying to paw the accused is perhaps not to the point.  It is quite clear that that was noted, which does corroborate the accused’s perception of Mr Wolstencroft’s attitude. 

96.              She told Ms Swinbank that she had got back without being raped, left the car outside and locked the door to escape him.  That does seem largely consistent with the way in which the CCTV records the vehicle first coming in and then going back out again, then Mr Wolstencroft and the accused coming in, he running out, or at least hurrying out, and the door being closed almost on his head. 

97.              Ms Swinbank did say that she warned the accused about drinking with strangers and going through Telopea Park, informing her it was better to go down Wentworth Avenue or Canberra Avenue, and advising the accused that the park was a dangerous place to be. 

98.              On the morning which followed the events, near Telopea Park, she received a phone call from the accused and spoke to her.  There had been some earlier phone calls, this was at 2.10 am.  The accused was hysterical and wanted Ms Swinbank to get her; she told her she had been stabbed.  Ms Swinbank refused and told her to call the police and the accused said she had no credit so Ms Swinbank called.  It would seem from that that the accused either did not know or had forgotten that you can call ‘000’ without credit.  In any event, that was what she said.  She had called Ms Swinbank and she did mention a knife in relation to the stabbing which was “her own knife” and she seemed more concerned about the stabbing.  She is not sure, at that time, if the accused had mentioned any rape but she did later say that the accused had said that she was raped and that her leg hurt “so much”. 

99.              There was a later call, that is on 2 September 2008, where, after the accused had been told that the deceased had died.  She was in the refuge at the time and she said “I’ve killed a man.  I’m fucked” and Ms Swinbank was taken aback by that too. 

100.          There were further conversations in the course of which the accused said words to the effect, “It was self-defence, I had no choice”.  The accused had said that she was having a few drinks with a male, she did not know him but he seemed trustworthy.  Ms Swinbank had thought the accused had said to her that she had asked for a knife and while walking home, half way there, he raped her.  The knife was lost, she found it and stabbed him.  He got the knife from her and stabbed her and he then ran off.  Again, this is not necessarily a considered and ordered account but it is, nevertheless, consistent with what she later said had happened with the one exception that I think Ms Swinbank, like many other people, assumed that she had been told something and it is something she has assumed.  She had assumed that the accused had asked for the knife and it is quite clear from Mr Brown’s evidence that she had not. 

101.          In cross-examination, she was asked about the conversation in which she had referred to “beating up guys”.  She agreed that she had seen no such behaviour and was unable, of course, to say whether the occasion which was referred to, whatever it was, was one which had been provoked or not. 

102.          She did not recall her push bike being used but agreed that it would be able to be used by her if she had asked or wanted to.  She agreed that she had not told the police that the accused had asked the deceased to walk her home and agreed that it could be an assumption that she had made. 

103.          I turn now to Detective Sergeant Hilda Sirec.  She was initially assigned to investigate the complaint of sexual assault by the accused and, but for the death of Mr Anderson, no doubt, that would have been the investigation that would have progressed.  The probability is that Mr Anderson would have been charged with sexual assault and then that matter would have proceeded in the usual way. 

104.          She did, however, note that there was no ground litter on the person of the accused.  The absence of such litter is not as significant as would have been the presence of it, but it does confirm her presence at the location, had it been in dispute.  The accused does, of course, indicate that she herself had brushed herself down, as you would expect her to do after that which she had been subjected to on her account of it. 

105.          She did, not when later advised by lawyers, speak to police in an extended record of interview.  I must remind myself that the accused has every right not to speak to police and no adverse inference can be drawn from the fact that she, on legal advice, chose not to make a statement.  Interestingly, at 2.00 pm the accused was told that a charge of murder would be laid and that she was to be held in custody but, after the forensic examination was completed, she was actually unarrested and the proposal to charge her was not taken.  It does not seem to me that the police ever considered that they would charge her.  That was on advice from someone else, obviously. 

106.          In cross-examination, Sergeant Sirec agreed that they had chronicled the life of the accused as much as they could and had unearthed complaints of sexual assault by her former stepfather and a grandfather, and, that one male had indeed been in a physical altercation with her.  She obtained details but could not recall it at the time when she gave her evidence.  Of course, there are times when one instance can be referred to as a trend. 

107.          I refer now to Detective Senior Constable Ashley Laidler who recalled, at 2.45 am in the morning, that he had attended a possible sexual assault.  He had some conversations with the accused.  The accused told him that she stabbed him, that is the deceased, six times in the chest “to get him off me”.  Again, that may be an exaggeration but it is not fundamentally inaccurate. 

108.          When she was told that the deceased had indeed died, he noted a definite slumping of her shoulders and, as I said, she was released without charge later that afternoon.  She had said something too, about stabbing the deceased in the shoulder, or the person who was then referred to as the offender, and she also said, and this is a direct statement from her, that she was given a knife by a work colleague.  I take that to be a reference to the knife which was given to her by Mr Brown. 

109.          Just to note, because it does not seem to me to have a great deal of significance, the fact that her conversations, both on the telephone and messages on the telephone, had been subjected to surveillance after 1 September 2008.  All telephone conversations which were then recorded were covertly recorded.  It is obvious to me that they were recorded without the accused particularly being aware of the fact that they were being monitored.  The significant part there is that there was a message in which she said “If someone was going to rape or attack me I’d kill him.”  And the words “kill him” were taken out and replaced by x’s.  The accused said that that was done on the advice of someone at the Refuge, certainly whether it was or was not, does not have much significance.  It is quite clear that that was a kind of representation which she had made on a number of occasions, and in context, it appears to me to mean that if she was attacked she would defend herself, even to the death, if necessary. 

110.          I will not mention Ms Fiona Bastian’s evidence because it does not seem to me to relate to this case at all.  I do not think what she heard in any way relates to this case. 

111.          Ms Rachel Smith, an acquaintance of the accused in Queensland, had visited the accused while she was working at B Bar.  She saw the peeling knife which has been referred to and on 31 August 2008 she had seen the accused at Figaro and had been told by her that a guy tried to rape her and she had taken a bull dog shirt from him.  She did not go into detail.  She did show what she thought was the pigging knife and said to Ms Smith, “It’ll all be sweet.  I’ll walk home” after being warned, I will not say with an unusual warning, about going through Telopea Park or, at least, that area if not mentioned by name. 

112.          Ms Smith woke to a call on 1 September 2008 at about 5.30 am.  She was told by the accused that she had been raped and her leg had been cut.  The conversation was fairly short. 

113.          There was a conversation sometime after the event in which the accused said “I should have done that to my step father”.  I do not take that to refer necessarily to stabbing him, but that is to defend herself against him, that is the way I would take it. 

114.          The accused did describe in her evidence, of course, an instance in which she had entered her stepfather’s room with a shot gun but had not used it.  She did mention to Ms Smith that she had had not only the cut on her leg but also a scratch on her “arse” as she put it. 

115.          Ms Storey gave evidence too.  The accused gave her an account of the incident with Mr Wolstencroft, whom she described as someone who had tried to have sex with her and she had left the situation.  Ms Storey told her not to have trust in strangers and after the event in question, the accused said that she had been raped and had stabbed him. 

116.          A little later in the day Ms Storey heard a bit more detail from the accused and she also gave an account of the accused having previously had a knife under her pillow when alone.  She said that the accused had said that that was her personal security and she noted that the accused had nightmares about being sexually assaulted. 

117.          The accused repeated again, and I do not think it is necessary to go over this again and again, that “the man who died had been killed because he raped me.  It was in self-defence.” 

118.          There was some question about whether she had dropped the knife or dropped control of the knife, Ms Storey’s recollection of her statement was that she dropped the knife and she said that she “stabbed him like five times” and “He was raping me, he stabbed me, I threw him off.” 

119.          These, I should add, are all conversations that were covertly recorded.  The accused said at the Telopea Park Motor Inn, not only was it self-defence but that she “was scared he was going to come back” because he ran away. 

120.          She complained about them trying to put her in jail for defending herself.  I do not think it is necessary to go through any more of that. 

121.          I will just refer to Mr Andrew Preston, the forensic biologist, whose examination was of biological evidence, that is, swabs taken from various persons and places on their persons as well as various objects that were found including clothing. 

122.          I will only say this, that the evidence concerning the swabbing of the penis of the deceased does not lead to a conclusion that the accused had engaged in any oral intercourse with the deceased.  The evidence simply does not support such a conclusion, in fact, the evidence taken as a whole supports the conclusion that it was the deceased who forced sexual intercourse upon the accused. 

123.          It is not necessary to go into the whole of that evidence.  The DNA evidence was completely consistent with the account the accused gave of what had happened to her. 

124.          I will just mention briefly that there was a suggestion made that the accused had some kind of pathological hatred of men.  The evidence of Mr David Clayton does seem to be quite contrary to that. 

125.          I will mention, in passing, Professor Olaf Drummond’s evidence only to this extent; he does give very useful information about blood alcohol levels and how they change over time.  That certainly leads to a conclusion that when the accused was sampled as to her blood alcohol level, that it was seriously well below that which she would have had at the time when the incident took place.  Indeed, if you use Professor Drummond’s calculations, it turns out that she would have had a blood alcohol level at that time of around 0.16, a high range for anybody, particularly for a 17 year old. 

126.          The other salient feature is what one concludes about the blood alcohol sample taken from the deceased.  It returned a result of 0.244.  Of course, that was post-mortem and must be treated with some degree of caution because, firstly, blood alcohol levels do tend to rise after death.  Secondly, there is no circulation of the blood so as to even out blood alcohol that may have pooled in a certain place.  One cannot say what, precisely, the deceased’s blood alcohol level would have been at the time when he was going home with the accused.  It was, undoubtedly, significant but one cannot assume that it was 0.244; it may well have been considerably lower but not necessarily much below 0.2. 

127.          Professor Drummond also made the point that an underlying Attention Deficit Disorder could be exacerbated by the excessive consumption of alcohol and may superimpose on whatever might have been the behaviour of the deceased, otherwise aggression and/or impulsiveness.  That may indeed explain what happened. 

128.          Very briefly, Ms Jane Hemming’s evidence was to fabric marks and so forth.  Not much turns on that, except that there was no apparent textile damage to the clothing of the accused and there was no textile damage apart from stab and slash marks to the clothing of the deceased. 

129.          As I said before, the accused gave evidence, which she was advised to do so, and she subjected herself thereby to cross-examination by counsel for the Crown.  That is not an insignificant thing because as you will expect the Director of Public Prosecutions himself is quite a forceful and skilful cross-examiner so she was placing herself in that position. 

130.          She is not required, of course, to explain or clarify or disprove anything but I have to say that her evidence seemed to me to be persuasive.  I will not go through the undisputed facts of which she gave evidence, but she, in effect, confirmed much of what had been reported as having been said by her about her past life and her explanation for the taxi ride out to Isabella Plains was that, in effect, that she was taken a bit by surprise. 

131.          She had not really focused on where she was and found herself, in effect, on the way to Isabella Plains without quite knowing where she was going and in the company of a man, that she did not particularly like but on the other hand did not particularly dislike, but was getting more and more alarmed about his predatory behaviour and aggressive behaviour.  So, she formulated a scheme as to how to get away without confronting the man.  It seemed to have worked and it is certainly consistent with the footage we have of the complex at Barton. 

132.          I do not doubt really what she had to say about that.  I do think that her fear was probably heightened more than it needed, perhaps, to be but, nevertheless, I do not think it was unreasonable for her to have assumed, as she did, that if she could not get out, there was a possibility at least that Mr Wolstencroft might turn aggressive.  I do not know that he would have, but it was reasonable for her to fear it. 

133.          She referred, of course, to the interaction with Mr Anderson and much of that is shown already on CCTV and the interaction is fairly obvious.  She explained that she did not have any apprehension about him initially, one because he was not overwhelmingly large, and the other thing was, he worked in a kitchen and seemed “like a nice guy”. 

134.          The accused, up to the time when she actually set out, thought she was walking home alone.  That was until she went outside after having been given the knife by Mr Brown.  I have to say the events, as shown on CCTV, are consistent with that view because when she went outside to look for her knife again she is followed by Mr Anderson, he is not leading her anywhere.  They do look for the knife again and that would have given Mr Anderson the idea, I have no doubt, that she was not armed with anything.  She agrees in her evidence that she did not make any comment about having obtained the knife that she had from Filthy McFadden’s, so it would be reasonable for him to assume that she was unarmed. 

135.          I will not go through everything because plainly much of it is simply a confirmation of what already appears on CCTV or otherwise, and is certainly consistent with what she had said. 

136.          The accused, in her evidence, did describe in detail some things that emerged perhaps for the first time.  She said that before she was attacked by Mr Anderson he had said that he had to have “a pee” and fell behind for that reason.  She, not unnaturally, did not look around to see what he was doing, and it does seem to me to be likely that that was Mr Anderson’s plan to get behind her and have her, in effect, unaware and attack her.  It is quite obvious, and confirmed by the results of the post-mortem, that he did not, in fact, urinate.  It seems to me that that was a pretext. 

137.          She was rapidly taken down and said that he entered her almost immediately.  Her hand fell on the knife and she stabbed at him with it and pushed him off.  She felt the knife in her right hand.  She thought that her first blow struck him, perhaps, in the shoulder near the neck and she, in effect, levered him off with the knife.  Whether that means pivoting around the knife, one cannot be sure, but certainly once he was rolled over, she was straddling him and stabbed him several times with the knife. 

138.          She, after he fled from the scene, put her jeans back on.  She obviously did not find her underwear and the only thing that was said, that she recalls was, when she was on him and stabbing him, he said “What are you doing?”  There was no scream or yelling. 

139.          She was not endeavouring to imagine her stepfather, but she felt torn and burning and just reacted.  Of course, that is consistent with what she later said both to police and to persons to whom she spoke. 

140.          I suppose a reaction that might be regarded as how people would regard what she did, if Ms Smith is any indication, is, “I’d stab the fuck out of them too” in effect. 

141.          She agreed that she had been warned about walking home alone but felt safe, however, with Mr Anderson.  She thought that she had been in Telopea Park at the time when the attack took place, although, it does appear that it was across the road from Telopea Park, that is across the road from Telopea Park East on the side of the road that contains the Baptist Church. 

142.          Concerning her jacket, it is a zip-up jacket which is usually tight.  She wore it mostly unzipped she said and she believed it was unzipped at the time when she was pushed down from behind.  She said, however, it was in effect used to hold her arm down and up over her face.  His face was on her chest.  He rolled with the knife. 

143.          She was not aware, in fact, of her leg being stabbed, although, it does seem to me to be more likely than not that the leg was stabbed during the course of the movement that has just been referred to.  That is to say, first of all stabbing him and then rolling him over and in the course of that, the stab wound to her leg took place probably from the deceased gaining control of the knife, if not possession of it, and plunging it into her leg. 

144.          She explained that she had changed the term “kill him” and agreed that it did not look good so she left it out.  She was asked about why she did not tell police immediately that the deceased’s phone number was in her phone and said she just did not think of that.  I must say it is not surprising that such detail might slip her mind at the time given what she had been through.

145.          In cross examination, she was challenged about whether this was the first time she had carried a knife.  She qualified that by saying, “First time in Canberra.”  There is no independent evidence one way or the other as to that, apart from, of course, the fact that if you call it carrying a knife, she had certainly had a knife, two nights before with Mr Windle, where there had been a knife and nun chucks in her bag.  She apparently drew a distinction between those two things.  She had said it was for self protection. 

146.          There was some dispute that was entered into about whether the words Telopea Park had been used in the warnings to her.  I do not doubt that everybody assumed that, whether or not it was mentioned is probably not to the point.  I do not think the accused was under any misapprehension about where it was dangerous to walk. 

147.          The accused again said what she had said to Mr Windle to indicate an attitude on her part to get males to leave her alone, and I note that she thought it was okay to carry a knife.  It was, of course, an offence in Canberra at that time to carry a knife in a public place.  That is not relevant for the present purposes. 

148.          She did say that it was bad that she had not had her own knife with her, she explained that was because Mr Brown was dragged into “it” by having given her a knife of his, or at least, of his establishments. 

149.          A lot of her comments and statements were, of course, expressing anger about sexual abuse and one has to say while that is entirely understandable it does not reveal, as she put it, a hatred of men generally, it does reveal a hatred of some men.  Indeed, it is quite obvious that she had made some friends who were male, some even online, and there were others, however, who were unwelcome and one example of that was a person asking her for phone sex. 

150.          She agreed that Mr Windle should not have been described as a person who almost raped her.  That was an exaggeration and she put the proposition quite forcefully that she was not a person prone to violence and, of course, if that was not true and, there were examples of, it I am sure Detective Sergeant Sirec would have found it.  The Crown could have disputed that statement by evidence, had it chosen to do so, but I will have to accept that there is no such evidence and that she cannot be regarded as a person who is prone to violence. 

151.          She was challenged on some aspects of the evening with Mr Wolstencroft and pills, whether he offered her pills or not, obviously they are at complete odds about that.  I do not think anything turns on that but if I am asked to guess I would say it more probable that Mr Wolstencroft was more likely to be a source of pills than the accused. 

152.          As to why Mr Wolstoncroft got out at the BP Service Station on Canberra Avenue to get cigarettes is unclear.  The accused said she already had cigarettes.  She obviously had not asked him to do that because she was on the phone continuously at the time.  So for some reason Mr Wolstencroft decided to do that.  Why, is just unclear to me. 

153.          The milk and lemonade, again, obviously, were not purchased by the accused, as she said herself, she had no money and that seems to be the case.  Mr Wolstencroft got them, I am sure, but I do not know quite why, maybe just because he felt like it.  Perhaps because he intended to mix them in drinks, I do not know.  He certainly was pretty intoxicated and did not recall these events later so he may not even know himself what he had in mind. 

154.          The accused was challenged on the question as to whether she had invited Mr Wolstencroft to the units at Barton.  I think it is obvious from the CCTV that she had, as she said, created a pretext whereby she could get to those units away from Mr Wolstencroft, without him having to be forcefully ejected. 

155.          There was also some questions about the warnings she had received not to go through Telopea Park.  Her recollection of the warnings given by Ms Swinbank were less explicit than that which Ms Swinbank gave, whether that is due to her youthful arrogance, that is to say the accused’s youthful arrogance, I do not know.  I have no doubt that she was left in little doubt about what Ms Swinbank meant even if she may not have used the precise words or she did not recall the precise words, like whether precisely ‘rape’ was used or whether precisely ‘Telopea Park’ was used. 

156.          The accused did agree that Mr Anderson, when they interacted, she had invited him out for a cigarette, as indeed, appears on the CCTV.  She did not take the view that he was so intoxicated as to be unable to function, indeed he was on the phone, phoning apparently successfully, but according to Mr Groot, coherently, and indeed on any view of it he was sufficiently aware of his surroundings and capacity to be able to engage in sexual intercourse with the accused. 

157.          She agreed that her estimate of four beers was not entirely accurate.  It would be more than that and I must agree with that too, but probably not many more. 

158.          She thought she was on her own.  She agreed she used the term protection knife to Mr Brown and when she was going home she just remembers Mr Anderson appearing.  They looked together, however, for her knife.  She had not made a prior arrangement to meet him and she would not have told him that she had a knife with her. 

159.          She agreed that Mr Anderson would have known that she was gay.  Her jacket at that time would have been half zipped-up and she thought it was in the middle of Telopea Park that the event happened and not otherwise. 

160.          She again reiterated under cross-examination that her awareness of being stabbed in her leg was not such as she could remember precisely how it happened, but she certainly did not deliberately stab herself and, indeed, I do not think that is a viable option anyway. 

161.          In regards to dropping the knife, again, she agreed that that could be wrong.  It was more likely, she thought now, that it was a continuous event that happened and that certainly accords with the objective facts as they have appeared from the crime scene and the examination of the parties concerned. 

162.          It was put to her that the deceased saying “What are you doing?” was indicative of surprise on his part because the accused was willing.  I think to the contrary.  I think that it was because she was resisting and, indeed, resisting with a weapon, that he was surprised by that.  Finally, I do not think that there is any strength in the proposition that she was acting out some kind of fantasy or resentment against men generally. 

163.          Having viewed the evidence thus far it seems to me, therefore, that I am inevitably led to the conclusion that the accused, when she used the knife as she undoubtedly did, and when she stabbed Mr Anderson, which she undoubtedly did, was acting in self-defence.  I, therefore, find the accused not guilty and the charge is dismissed accordingly.

164.          The accused is discharged from bail.


I certify that the preceding one hundred and sixty-four (164) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.




Date:       7 March 2011



Counsel for the Crown:                                  Mr J White

Solicitor for the Crown:                                  Director of Public Prosecutions for the ACT

Counsel for the Defendant:                            Mr B Collaery

Solicitor for the Defendant:                            Collaery Lawyers

Date of hearing:                                              31 January 2011, 1, 2, 3, 4, 7, 8, 9, 10, 11, 14,15,

                                                                        16, 17, 21, 24, 25 and 28 February 2011

Date of judgment:                                           28 February 2011