R v SC
 ACTSC 34 (28 February 2011)
EX TEMPORE JUDGMENT
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
Court of the ACT
Date: 28 February 2011
IN THE SUPREME COURT OF THE )
) No. SCC 224 of 2008
CAPITAL TERRITORY )
THE COURT ORDERS THAT:
A verdict of not guilty be
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
It seems to me that the two injuries, if they are put
together, offer no other explanation than forced penetration by the deceased of
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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
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.
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
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
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.
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.
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
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.
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.
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.
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.
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.
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
He did concede that his recollection about the accused getting in the
back seat was perhaps faulty.
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.
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
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.
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
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.
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.
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.
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.
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.
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.
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.
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
She did not notice, however, a scratch on the accused
buttocks, of which the accused later complained, but agreed that she could have
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.
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.
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.
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.
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”.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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
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.
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.
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.
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.
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
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.
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.
She said she had had, at least, five drinks. She thought the accused was outgoing and
affected by liquor but not drunk.
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.
I infer from that that there was certainly no evidence
of any pre-existing hostility, certainly not by the accused towards the
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.
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.
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.
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.
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.
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.
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.
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”.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.”
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.
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.
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.
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
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
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.
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
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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
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.
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
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.
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.
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.
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.
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.
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
Date of hearing: 31
January 2011, 1, 2, 3, 4, 7, 8, 9, 10, 11, 14,15,
17, 21, 24, 25 and 28 February 2011
Date of judgment: 28