New South Wales District Court CITATION: R v Lisa Joy Beattie [2007] NSWDC 53 HEARING DATE(S): 26-28 March 2007 JUDGMENT DATE: 28 March 2007 JURISDICTION: Criminal JUDGMENT OF: Nicholson SC DCJ DECISION: On the limited evidence available, the accused committed the charge contained in first count in the indictment. [60] CATCHWORDS: Criminal Law - Special Hearing - Malicious wounding with intent GBH - Meaning of wounding, intent, GBH. LEGISLATION CITED: Mental Health (Criminal Procedure) Act 1990 s.14. CASES CITED: Subramanian v The Queen (2004) 79 ALJR 116 PARTIES: Regina Lisa Joy Beattie FILE NUMBER(S): 06/21/0160 SOLICITORS: Crown: Mr C White - Office of Director of Public Prosecution Accused: Mr R Leary - Legal Aid Commission of NSW JUDGMENT 1 HIS HONOUR: On 24 May 2006, Lisa Joy Beattie was committed for trial upon two charges. On 30 August 2006 his Honour Judge Robison found her unfit to stand trial. In accordance with s 14 of the Mental Health (Criminal Procedure) Act 1990, he referred the matter to the Mental Health Review Tribunal. 2 For some reason that I need not explore, the tribunal only received the referral on 1 November 2006. 3 On 8 December 2006 it determined, on the balance of probabilities that Ms Beattie would not, during the period of 12 months after the finding of unfitness become fit to be tried upon the two charges. That determination requires this Court to conduct a Special Hearing of the charges upon which Miss Beattie has been committed for trial last May. 4 I have satisfied myself the charges upon which she was unfit to be tried are the charges before the Court. These charges are (1) that on 21 January 2006 at Bankstown in the State of New South Wales, she maliciously wounded Aminah Hamdoun with intent to do grievous bodily harm. (2) In the alternative she is charged that at the same time and place, she maliciously wounded Aminah Hamdoun 5 I remind myself a special hearing is for the purpose of ensuring, despite the unfitness of the accused, that she is acquitted unless it can be proved beyond a reasonable doubt, on the limited evidence available, that she has committed one or other of these charges. 6 This special hearing is to be conducted as near as possible to a criminal trial. 7 I record that at the hearing Miss Beattie was represented by Mr Leary, solicitor, advocate of the Legal Aid Commission. 8 At the outset of these proceedings she was arraigned and pleas of not guilty were entered on her account. That was done by me so that the accused, hopefully, would understand that she is to be taken as pleading "Not guilty" in respect of each charge. 9 I record that I was aware the accused was unfit to be tried in accordance with normal procedures, the meaning of her being unfit, the purpose of the special hearing and the verdict available. 10 In theory there are three available verdicts to the charge I am considering: "Not guilty" of the charge; a special verdict, not guilty by reason of mental illness; and finally on the limited evidence available, the accused committed the offence charged. 11 However, in the event that the Crown proved the relevant central elements of one or other of the charged offences in the circumstances of this case, there is no available evidence to support a special verdict. 12 I record that from my experience formally as an advocate and now as a Judge, that I am aware of the consequence of each available verdict and the practical consequences of these verdicts. See Subramaniam v The Queen (2004) 79 ALJR 116. This hearing was conducted before a Judge sitting without a jury as provided by s 21A of the Mental Health Criminal Procedure Act, 1990. 13 As presiding Judge I am tasked with finding facts ultimately leading to a determination of a verdict or verdicts as the case may be. 14 To the facts as I find them to be I must apply the relevant principles of law; the principles of law I would normally direct a jury upon. I remind myself now of those relevant principles. 15 The appropriate starting point is to recognise the "Not guilty" plea as entered on behalf of the accused. She is entitled to be considered not guilty unless and until, if it be case, the Crown proves her guilt on one or other of the charges. That is to say the onus of proving the guilt of the accused rests with the Crown. 16 The standard of proof required is proof beyond a reasonable doubt. 17 I remind myself of the first charge, having the following elements * On 21 January, 2006 at Bankstown, the accused maliciously wounded Aminah Hambdoun;. * At the time she did so with intent to do grievous bodily harm. 18 Each of these elements must be proved beyond a reasonable doubt. 19 The alternate charge will be proved if the Crown succeeds in proving the first element but fails to prove the second element. I remind myself suspicion is no substitute for proof beyond a reasonable doubt. 20 I remind myself that "malicious", for the purpose of this trial means the accused's acts were deliberate, unlawful and intended acts. The Crown does not have to prove the accused intended the actual stab wound or other injuries occasioned. Indeed, I am satisfied they probably were not intended. These particular wounds are defence wounds resulting from the complainant's defensive response the stabbing motions made by the accused. 21 I also need to be satisfied, for purpose only of the first element, that the accused intended some injuries. Put another way, the injury occasioned was not an accident, but a consequence of a willed and deliberate unlawful act by the accused, although not necessarily with the intent of causing the injury occasioned. 22 I remind myself that to prove the complainant was wounded, the Crown must prove some cutting, breaking or penetration of the interior layers of skin. The stab wound, as sustained by the complainant would qualify as a wound. 23 I remind myself that grievous bodily harm in modern times is equated to "Really serious injury". "Really", means "in truth" or "in reality". It does not mean "Very". 24 Findings of fact are for me to make. I remind myself in making findings of fact I may accept all, part or none of what a witness says. There are some criteria of value in assessing a witness's testimony. They include observing the demeanour of the witness; the attitude of the witness; the way he or she answers questions; whether the witness was frank or attempting some avoidance or obfuscation. 25 Inconsistency in evidence, whether internal or external, may be indicative as of unreliability. Of course there may be other explanations for inconsistencies, such as a failure to understand a question or articulate the intended answer accurately. 26 Where there is supporting evidence I may more readily accept the witness. Where evidence is uncontested by cross-examination, as in this case most of it was, I may more readily rely upon in. However, before I do so, in a Special Hearing, I need to remind myself that the absence of cross-examination may be caused by the very fact that the accused is unfit to be tried, and has unable to instruct her counsel. 27 In approaching this case I must remember my oath to Judge without fear or favour, affection or ill will. That means in this case I must be impartial. I remind myself to confine my findings to the sworn evidence, exhibits and conclusions of fact open on the received evidence. I remind myself that such conclusions of fact that I would draw from the direct evidence must be justifiable conclusions. I must avoid speculation. I remind myself to draw adverse conclusions of fact against the accused only in circumstances where the conclusion of fact I contemplate drawing is the only rational conclusion open on the evidence. 28 Where more than one conclusion of fact is available to draw one or the other would be speculating. Nor can I draw a conclusion of fact where there is no evidential foundation for it at all. 29 The accused has not given evidence. At the outset of the special hearings I entered pleas of not guilty on her behalf. She may have given evidence. She may choose not to give evidence. It is a free choice that she has. That means there is no forensic disadvantage for her choosing not to give evidence. Her pleas of "Not guilty" entitle her to be presumed innocent until, should the Crown do so, it proves her guilt beyond reasonable doubt. She has the right of silence, that is not some empty mantra. Her decision to remain silent does not advance the Crown case one iota. It does not become some makeweight for the Crown case. It is not some admission against her interest; does not amount to some inference that she is or may be guilty of either offence. 30 I am required to review the existing limited evidence at the close of the Crown case to see if, upon that evidence, the Crown has proved the commission of the offence by the accused on either charge. 31 I viewed the ERISP in which the accused participated. I remind myself her participation in that record of interview does not shift the burden of proof. The accused has not raised her good character. From my knowledge and experience I am able to infer she may well have reasons relating adversely to her character not to do so. I must put to one side any bias or reasoning that relies upon a presumption of bad character as I assessed the evidence. The Review of the Evidence. 32 Very little of the evidence was contested. There was some inconsistency, as one might expect, as to finer details as between the witnesses, but a clear picture on the essential elements has emerged. Aminah Hambdoun presented in Court and in exhibit D as a young lady who identifies as a Muslim. She wore to Court, and was wearing on 21 January 2006, items of clothing associated with Muslim women, including a blue hijab, long sleeve white top, black slacks and a pinafore. 33 I apologise if there be any cultural inappropriateness in describing her outer garment as a pinafore. 34 She was at the Bankstown Centro with her family at about midday on 21 January 2006. The male members of the family had separated and the complainant and her mother made their way to Hollywood Shoes. That shop occupied a corner position in the mall. Across a large exit corridor was a Supre clothing shop. Situate in the middle of the corridor was Boost Juice. Mother and daughter separated. The daughter to buy something from Boost Juice. The mother to shop at Hollywood Shoes. 35 The complainant was paying for her purchase, a juice of some kind. She noticed the trainee shop assistant looking past her. The complainant turned around to see what she was looking at. The accused was behind her with a knife, slightly raised above her head ready to plunge it into the complainant. I am satisfied the accused did not anticipate the complainant would see her or turn to face her. I am satisfied in so doing the complainant prevented the accused stabbing her at that moment. 36 Other evidence I accept establishes that moments before the complainant turned, the accused had entered Bankstown Centro from the Appin Way, through what I shall call the JB Hi-Fi entrance. That entrance flowed into the corridor leading to Boost Juice. I am satisfied the complainant was the first person the accused spotted wearing Muslim apparel who was still, and was unaware of the accused or her intentions. I am satisfied the accused was looking for some person wearing Muslim apparel and not specifically targeting the complainant. What she was specifically targeting was someone who was Muslim. 37 The evidence on which I rely to make the above finding is to be found in exhibit E, the ERISP. In that record of interview the accused agreed that she had earlier said that she had stabbed a woman at Bankstown, that her motive for doing so was that she wanted to stab a Muslim. She told the police she had had enough of Muslims. She was related to a Muslim and she hated them. 38 There is nothing that persuades me one way or the other as to whether she is related to a Muslim, or had had enough of Muslims. I am satisfied that there is some evidence suggesting that she had, at about the time of the offence, some problems with Muslims, at least in her mind and attitude. 39 Ivo Cardoso, a supervisor of trainees with Boost Juices, was observing his trainee shop assistant, Mary, serving the complainant a juice. He saw the accused make her way down the corridor and make her way directly to the complainant. When the complainant first turned she noticed the tarnished knife with a 10 centimetre blade raised in the accused's clenched fist. The knife was at least level with the accused's forehead and probably a fraction higher. 40 As the complainant turned to face her attacker, she noticed the accused seemed angry and very determined. The complainant's sense was the accused was focused and determined on harming her. The complainant ran or walked quickly towards her mother in the Hollywood Shoe shop. It was a distance of five to six metres or some 10 to 15 steps. 41 As she neared the shoe shop, the complainant turned again. The accused had followed her and was, to use the words of the complainant, in her "personal space". She was still armed with the knife. The complainant said, "What's wrong, are you okay?" The accused thrust the knife at the complainant. The complainant put her right hand up, arm facing outwards, fingers extended like a policeman on point duty halting motor traffic. It was a reflex defensive response. The accused was thrusting the knife towards her. 42 I am satisfied the question asked by the complainant caused the accused to hesitate, although only for a moment. I do not regard her actual physical thrusting movement with the knife as hesitant. The hesitation that was described by the complainant, was a hesitation caused by response; by a moments thought as to whether to respond to the question. The accused decided not to answer it orally but to strike with the knife instead. 43 In so doing she injured the complainant's middle finger from the fingernail cuticle to the first joint with a laceration, then the base of the middle finger with a smaller laceration and finally the base of the index finger with a small cut. That cut may well have been caused by the complainant's hand gripping the blade. None of the injuries from this strike were serious. 44 Another downward stabbing motion followed. The complainant had a shopping bag and her personal handbag in her left hand. She raised her left arm with elbow bent in a reflex, defensive action. As the knife came down, it penetrated through the upper surface of the left forearm, some five or six inches above the wrist and emerged on the inside surface of the forearm again, some five or so inches from the wrist. 45 As exhibited at Court, the area of the penetrating wound has now healed. But there is scarring at the entry opening, and surgical scarring from that to the underside of the arm. The knife, as it travelled through the arm, severed muscle and tendons. The area severed was the abductor policis longus which controls actions of the thumb and is one of the tendons related to extending and abducting the wrist. 46 As I earlier remarked I am satisfied that this injury was not intended. It is a serious injury, although, whether it qualified as grievous bodily harm is moot, but not a matter I need to determine. If it did so qualify it would be more because of the scarring, perhaps, than the penetration. When she received the major injury, the victim screamed. 47 The accused hurriedly departed the scene and fled from Centro through the entrance she had come. 48 Later, the knife was thrown away, most probably by the complainant's boyfriend. 49 The complainant's evidence, which is unchallenged, is that both stabbing actions of the accused were aimed at her chest. 50 For the purpose of assessing the accused's intent, it is also important to remember she had the knife, it was raised when the complainant was at Boost Juice. Had the complainant not turned, I am satisfied the knife was aimed towards the complainant's rear, although which specific part I cannot tell. The knife was above the complainant's shoulder in height. Her shoulders, the nape of her neck and her upper back were all within the target area. That area houses the lungs, heart and several vital arteries. Any injury to that area was likely to compromise one or other of those organs or vessels. Until the complainant turned, all that area was vulnerable and undefended. 51 I am satisfied the accused has mental health issues. During the ERISP she had, and clearly needed, a support person. During her interview she was frequently seriously, emotionally distressed. Indeed, the interviewing officer recognised that and terminated the interview before completing her investigative questioning. 52 Although the accused, at the time of the arrest, confirmed she had earlier admitted stabbing the complainant in the interview her position was that those admissions were not true in fact. 53 Whilst police were outside the interview room, looking for the officer in charge of the station to come and ask the usual post-interview questions, the complainant conducted an emotional conversation with her support person. In the course of this conversations she said, "I can't believe James would tell me to do something like this. To stab a beautiful woman...why? Why would want (sic) to stab a person at all - because this guy James, in the first place, going with him, I didn't know and I was that scared 'cos he had a knife, he was going to pull it on me and everything". The only male identified as the accused "Boyfriend", is a man named Gary. 54 The evidence is silent as to who James is - and whether he exists in reality or only in the accused's mind. However, what appears as inevitable from this conversation is that the act of stabbing was willed by the complainant, whether, as a consequence of being instructed so to do or on her own account. The reasoning causing the willed act is obscure. 55 That evidence, taken with earlier admissions, her act in coming armed with a knife, her three actions in raising a knife as though to stab and doing so on two occasions, satisfies me the accused clearly intended to stab the complainant. Further I am satisfied she intended to stab the complainant with sufficient force to penetrate through the skin into the red flesh of her victim. The facts that her hand was raised three times, first to areas of the upper back and nape of the neck and aimed then two times at the chest, satisfies me the accused was determined to injure the complainant. 56 The complainant describes the accused's demeanour as angry and determined. The knife is described as having a 10 centimetre blade. The stealth of the thwarted attack from the rear, in circumstances where the complainant was angry and determined and had the knife raised above her forehead, satisfies me the accused intended that the knife should penetrate through at least most of the blade length, that is through the complainant's skin to a depth of at least most of the blade length. 57 I am satisfied she retained that intention when she stabbed the complainant on the two other occasions. In those circumstances I am satisfied, beyond a reasonable doubt, the accused intended to inflict grievous bodily harm or really serious injury. 58 Thus, returning to the essential elements of the first offence, I am satisfied, beyond reasonable doubt, the accused wounded the complainant. I am satisfied when she did so she was acting maliciously, that is deliberately. I am satisfied that when she did so she was intending to cause really serious injury to the complainant. I am satisfied these events occurred at Bankstown on 21 January 2006. That being so, I am satisfied, beyond a reasonable doubt, on the limited evidence before the court, that the Crown has proved the first charge in the indictment. 59 I do not need to consider the alternate charge. 60 The formal verdict that I enter is that on the limited evidence available, the accused committed the charge contained in first count in the indictment. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.