Regina v A S Moffatt [No 3] [1999] NSWSC 233

New South Wales Supreme Court CITATION : Regina v A S Moffatt [No 3] [1999] NSWSC 233 CURRENT JURISDICTION : Criminal Division FILE NUMBER(S) : 070092/96 HEARING DATE(S) : 03/03/99, 04/03/99, 05/03/99, 08/03/99, 15/03/99, 18/03/99 JUDGMENT DATE : 26 March 1999

PARTIES : Regina Anthony Stuart Moffatt JUDGMENT OF : Kirby J

COUNSEL : P K Lynch (Crown) A M Martin (Accused) SOLICITORS : Crown Solicitor (Crown) Joan Baptie, Solicitors (Accused) CATCHWORDS : Criminal Law; Practice & Procedure; Murder; Intoxication; Provocation; Diminished responsibility ACTS CITED : Crimes Act 1900 Puckeridge v The Queen (CCA, unreported, 3 November 1998) CASES CITED : Royall v The Queen (1990) 172 CLR 378 Stingel v The Queen (1990) 171 CLR 312 Green v The Queen (1996-97) 191 CLR 334 DECISION : See para 121

THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

KIRBY J

Friday 26 March 1999

070092/96 - REGINA v Anthony Stuart MOFFATT [No 3]

JUDGMENT

HIS HONOUR : Background 1 The accused, Anthony Stuart Moffatt, has been charged with having murdered Richard James Fyfe on or about the 26th April 1996. He has also been charged, in the alternative, with a number of other offences of lesser gravity. The matter proceeded before me, as a Judge sitting alone. 2 On 26 April 1996, at 12.38 am, the New South Wales Ambulance Service was called to premises, flat 41, 59 Gerrale Street, Cronulla. It responded at once. At 12.45 am two ambulance officers entered those premises. The police were already there. A male person, later identified as Richard James Fyfe, was seated on the floor, slumped forward. He was examined, and found to be dead. 3 The case against Mr Moffatt substantially rests upon admissions said to have been made by him to neighbours, police and in a recorded interview. The accused was, at the time of these events, an alcoholic. The deceased was also an alcoholic. There were two other persons present in the flat They too were alcoholics. The accused did not give evidence before me. Issues have been raised, however, through cross examination, as to whether the accounts he gave at various stages that evening were fantasy, or confabulation. Anzac Day 1996 4 Mr Moffatt shared a flat (41/59 Gerrale Street, Cronulla) with Mr Ronald Godfrey. He was 36. Mr Godfrey was considerably older. The 25th April 1996 was, of course, Anzac Day. Mr Moffatt told Dr Wong that he and Mr Godfrey watched the dawn service on television. They drank as they did so. A resident of a neighbouring flat (number 39), Ms Kelly Findlay, recalled seeing the accused and Mr Godfrey on the back verandah. She put the time at between 8.00am and 8.30 am (T 93). She believed that the accused was already drunk. 5 The accused was in the habit of drinking a mixture of methylated spirits, and water. Indeed, such was his consumption, that he made up the mixture in plastic cordial bottles. He then drank from the bottle. He was seen to do so by neighbours. Photographs taken of the flat shortly after Mr Fyfe's death reveal the presence of cordial bottles. Methylated spirits bottles were seen by neighbours throughout the flat, often near the front door (T 92). Methylated spirits is, of course, an especially potent form of alcohol. Dr Perl said this: (T 111/112) "So these days, probably somewhere around 90 percent ethanol in a bottle of methylated spirits." 6 At some point during the day (variously described as mid morning or mid afternoon) a friend of Mr Godfrey, Mr William Williams, came to the flat. Mr Williams had a 5 litre cask of wine (Ex N(1) Q 65; T 70). The drinking continued. It was Mr Moffatt's recollection, when interviewed by police, that they watched a video. The Arrival of the Deceased 7 The deceased arrived at the flat in the early evening. Mr Godfrey said it was still daylight (T 53). The accused put the time at between 7.30 pm and 9.00 pm, although he acknowledged that his estimate may be astray, since he was "not a clock watcher" (Q 75). 8 Mr Godfrey claimed not to have previously met the deceased. It is clear, however, that the deceased had been to the flat before. The neighbours recognised him. Indeed, they knew him by his name, Richard. The accused, when interviewed, told the police that he recalled having met Richard Fyfe once before (Q 71). 9 When the deceased arrived, he was already heavily under the influence of alcohol. Mr Moffatt, himself affected by alcohol, described the deceased as "about three-quarters pissed after he'd just left the pub" (Q 172). The deceased entered the flat. He joined in the drinking. Mr Godfrey said this: (T 53) "A. … I will explain. The young fellow, he seemed to me to be a decent young bloke and he came in out of the blue because I had the door open and we had a couple of drinks together, the lot of us and he said to me, he said, he was smoking my cigarettes, he said I'll go and get a packet of cigarettes and another cask to square up. Q. Cask of wine? A. Yes. Q. Did he go and get another cask of wine? A. Yes." 10 The accused had the same recollection. He told Dr Wong the following: (Ex J, p 3) "The deceased at first drank what they had got but later went to the pub and came back with some wine and smoke(s)." Argument Between the Accused and the Deceased 11 The accused, when interviewed by police the following morning, described the progressive deterioration in his relations with the deceased. The deceased pestered him for a knife, which he had once owned but had given away. He gave the following answers when interviewed: "Q77. So what happened next? A. Well, he turned around and he started causing some hassles around the place, so I picked up the hammer. Q78. When you say he was causing some hassles. A. He was causing hassles around the place, he wanted to know where me knife was and I already got rid of that a long time ago." 12 Mr Moffatt explained that, at their last meeting, he had shown the deceased the knife. His account continued: "A. Yeah. And he wanted to know where me knife was, I said, 'I got rid of it'. And he turned round, kept pushing, pushing and pushing. Q82. OK. A. And I turned around and picked up the hammer, so I ended up smashing the joint up a little bit, didn't I? Just a little bit. Q83. So you didn't hit anyone at this time, you just …? A. No, I didn't hit anybody at that time, no, I was just smashing things. Smashing into chests and smashin' up glasses, bustin' mirrors. Just smashin' the place up. Q84. OK. A. You know, because all he wanted to know was where my knife was. Q85. All right. A. And I turned round and told him, 'I haven't got me bloody knife here,' I said, 'I'm not gunna tell you this for the last time,' and then he turned around and he called me a dog. So I grabbed him by the throat once, right, and then Billy and the old fella pulled me off, right. I grabbed him by the throat once and I said, 'Don't ever call me a dog again.' …" 13 Mr Moffatt's account is consistent with accounts he later gave to a number of doctors. On 16 September 1998, Mr Moffatt told Dr Wong the following: (Ex J, p 4) "There was an argument when the deceased kept asking him about a knife which was given to him by a friend but which he had given away. The deceased called Mr Moffatt a dog." 14 He added: "He took a hammer and 'smashed up the flat' and broke Ron's glassware." 15 Mr Moffatt's account to Dr Strum (Ex 2, p 9), was less expansive, though not inconsistent. 16 Mr Godfrey remembered the accused breaking glass ornaments, and a mirror his mother had given him (T 55). The photographs taken by the police show a broken mirror (Ex C, photo 3), and broken ornaments (Ex C, photo 13). The neighbours, Ms Keane and Ms Findlay, remember hearing "yelling and thumping" and the smashing of glass (Keane T 61-62; Findlay T 82). They fixed the time at about midnight, or shortly before. 17 Ms Findlay was sufficiently disturbed to investigate the noise. She walked along the corridor to the accused's flat. The door was slightly open. She remembered hearing the words, "Get him Tony". She retreated to her flat. There was silence for a further 10 to 15 minutes (T 85). 18 Mr Moffatt's account to the police suggests that he was insulted by the deceased for a second time. He was called a "mutt" which, of course, is another word for a dog. When first describing what occurred, Mr Moffatt appears to have telescoped the two insults, so that they followed one upon another. The relevant part of his interview is as follows: "A85. … I grabbed him by the throat once and I said, 'Don't ever call me a dog again.' So I sat back down there and he turned around and he said, 'You're still a mutt.' Bang, that was it. I hit him on this side of the, the left hand side with the hammer. I hit him in the middle of the chest with the hammer and I hit him on the right hand side with the hammer and then I grabbed him by the throat and I just did not let go." 19 The police, in later questioning, sought to clarify the precise sequence. The interview is in these terms: "Q130. How much later was the second time that you put your hands round his throat? A. I don't know, about three quarters of an hour, I'd say." 20 The second attack, as I will shortly describe, culminated in the death of Mr Fyfe. Immediately after the attack, Mr Moffatt left his flat and approached his neighbours in flat 39. It is clear from the evidence of these neighbours that there was a short interval, perhaps 15 minutes, between the first incident (after the deceased had called Mr Moffatt a "dog"), and the second (after he had been called a "mutt"). The Final Assault 21 Having been called a "mutt", the accused attacked Mr Fyfe. It appears that there were two stages to the attack: · First, the accused struck Mr Fyfe with a hammer. · He then placed his hands around the throat of Mr Fyfe, and began strangling him. 22 Dealing with the first stage, the accused told police that he repeatedly struck the deceased on the chest with the flat part of a claw hammer (Q 90, Q 150). He gave the following answers to the police: "A160. But I heard a lot of cracks. Q161. All right. A. 'Cause I didn't hit him soft." 23 Mr Moffatt did not see blood, except his own blood on the handle of the hammer. A claw hammer (Ex E) was found at the premises. The police showed the hammer to Mr Moffatt in the course of the interview. Before it was produced, Mr Moffatt accurately described it. He said this: "A145. I recognise the hammer, it's got a black handle, with little serrated holes in it and, I'll know the hammer, as soon as you show it to me … Q146. I'll just show you … A. That's the one. Q. … a black handled hammer now, is that, is that the hammer that you're talking about? A. That's the hammer I hit him with. Q147. There's just some hair and things on the claw part of the hammer, do you know … A. Probably his, I'm not sure." 24 The findings on post mortem were entirely consistent with this account. There was significant bruising across the chest of the deceased. However, Mr Fyfe had not bled externally. The blood on the hammer was, as Mr Moffatt surmised, his own. It was not that of the deceased (Ex L). Mr Byron Collins, pathologist, gave the following evidence: (T 208) "Q. If that hammer was indeed the implement that caused the fractures of the deceased's fifth and sixth ribs, the force that the hammer struck the ribs with to cause the fractures, would you expect that force to again have an audible crack as the ribs break? A. Yes, it may well do. The rib is bone and could certainly crack." 25 Having struck Mr Fyfe with the hammer, Mr Moffatt threw it away (Q 91). He placed his hands around the throat of Mr Fyfe, and proceeded to strangle him. He estimated that he had his hands around his throat for one and half to two minutes. The accused described what occurred in these words: "A100. His tongue was goin' blue while I was strangling him. Q101. All right. A. The only thing was he couldn't push me away. Q102. He couldn't push you away? He … A. No, no, when I'm coming in on top of somebody, I'm not easy, I'm not an easy thing to push away. Q103. So he was trying to push you off him? A. He was trying to, but it didn't work." 26 The process culminated in an audible crack from the deceased's neck, and then apparent lifelessness. Mr Moffatt said this: "Q92. OK. How long did you hold him around the throat for? A. Wouldn't have been any more than a minute and a half, two minutes. Then I … you know, where my hands were around him, my fingers were down there like that and my hands were around him, I just went, I just went crack and that was it, he was dead." 27 In the same interview, the accused, having identified the hammer, said this: "A168. And that's the hammer I used. But I hit him with the flat. Flat on the left, flat in the middle and flat on the right side, then I put me hands around his throat and I just didn't let go until he stopped breathing. Looks like I went a little bit overboard, didn't I?" 28 Towards the end of the interview, the following was said: "Q191. Tony, is there anything else that you want to tell me about what's happened? A. No, only the fact was, yeah, I hit him with the hammer and I choked him to death, that's all." 29 The accused also said this: "Q183. Did he ever go to sleep? A. No. Q184. From the time you got there until, up until this happened? A. No. Q185. He never dozed off? A. No, the only time he went (to) sleep was when I put him there permanent." 30 After hearing the crack in the neck, the final moments were described by Mr Moffatt in these words: "A92. … where my hands were around him, my fingers were down there like that and my hands were around him, I just went, I just went crack and that was it, he was dead. Q93. How do you know … A. Nothing much I could do after that. Q94. How did you know he was dead? A. His eyes rolled back in his head and his tongue turned blue. And he wasn't breathing. Q95. Was that … A. Couldn't feel no pulse in his neck. Q96. Was that before you let go of him or afterwards that his eyes rolled back. A. It was after I let go of him. Q97. So you heard a crack and you let go of him? A. Yep. Q98. His eyes rolled back then? A. Yep. Q99. And his tongue started to go blue? A. And his tongue went blue." 31 Mr Moffatt added: "Q104. Right. After you said you let go of him, did you check for his pulse, did you say? A. Yeah, I did, on his neck. Q105. And could you feel any? A. Nuh. I even put a mirror, or a busted piece of glass to his face like that, but he wasn't breathing. Q106. Right. A. So I knew he was dead. So I didn't know what to do." 32 There was, as mentioned, a broken mirror in the flat. The autopsy confirmed various aspects of Mr Moffatt's account. First, there was extensive bruising, and some abrasions, to the neck. Secondly, there was an oblique fracture running through the left side of the thyroid cartilage. In respect of the latter, Dr Lawrence (who performed the autopsy) said this: (T 12) "Q. If the accused in his account to police described hearing a crack as at the time that he had his hands around the neck of the deceased can you account for any observation that you made that might be consistent with the accused hearing a crack? A. It is consistent with the fracture in the thyroid cartilage." 33 Dr Byron Collins provided the following evidence, based upon the actions of the accused, as demonstrated in the recorded interview: (T 206/207) "Q. I appreciate you haven't had the opportunity to see it, but if you would assume that in the course of the police interview with Mr Moffatt, he demonstrated a motion that he applied to the neck of the deceased and he had his thumbs separated but on an angle, say a 45 degree angle (indicating)? A. Yes. Q. If force was applied to each side of the neck in that manner … A. Yes. Q. … and the force supplied by someone who was right-handed, that would place the thumb on the left side of the thyroid cartilage? A. It may do." 34 Dr Collins added: (T 207) "Q. When an oblique fracture of the thyroid cartilage occurs does it produce a crack or an audible break? A. It may do. It's - the thyroid cartilage in this particular case appeared to me from - as it did to Dr Lawrence, from the microscopy to be largely cartilaginous, so that is gristle that you might see on the end of a chop bone or that sort of an area, but there were some areas of boney formation or degeneration through that cartilage which is a product of ageing and yes, that could produce a crack. Q. That would be a more brittle structure? A. Yes. Q. And may well produce an audible crack that someone very close would hear? A. Well, that would be one explanation for a crack, yes." 35 Dr Collins, nonetheless, thought it unusual that other delicate structures in the near vicinity of the thyroid cartilage had not been damaged. The fracture of the thyroid cartilage in isolation would more commonly be attributed to a direct blow to the throat (T 200). 36 Drs Lawrence and Collins each gave evidence concerning the symptoms observed by the accused in Mr Fyfe shortly before his death. Dr Lawrence said this: (T 12) "Q. I will just paraphrase. I you could assume that there will be evidence in this trial that the following morning, the morning after the death of Mr Fyfe, the accused gave a version to police that as at the time that he had his hands around the neck of the deceased, the deceased's tongue appeared to go blue and his eyes appeared to roll back, do you attach any significance to those observations, if indeed they be accurate and reliable? A. It appears to be a description of somebody being strangled to the point of unconsciousness." 37 The symptoms having been described, Dr Collins gave the following evidence: (T 214) "Q. … what does that indicate to you, Doctor? A. Well, it indicates that he is not well basically, he has lost control of his musculature and his eyes and that sort of finding is commonly seen in all sorts of unconscious states and people who are immediately preceding death. Again in people who may well recover from whatever event has produced it. It is a non-specific finding basically, they don't indicate anything with any degree of certainty except that his cerebral and musculature functions and cardiac functions are compromised. Q. If those functions were compromised at precisely the moment that the neck was being compressed, does that suggest a cause and effect nexus? A. Well, I think we have already discussed that and I have said yes, but I - to a certain extent, but I can't separate them out as to what it might be, whether it is the neck situation, asphyxia, true asphyxia, the carotid sinus stimulation or his cardiac problems. You know, it is quite possible that this man, despite the fact that somebody's hanging on his neck and we don't know how hard, had a cardiac arrest separately and we can't sort that out." 38 When the ambulance officer arrived at the flat, he noticed the deceased had a blue tinge around his face (T 156). The Accused's Intent 39 In the course of the police interview, the following questions were asked of the accused: "Q107. When you had his, your hands around his throat … A. Yeah. Q. … what were you trying to do to him? A. Just shut him up, for calling me a dog and a mutt. Just, you know, 'Don't say that sorta thing,' you know." 40 The police returned to this issue later in the interview. The interview included the following: "Q115. All right. What did you think was going to happen to him if you kept, if you kept your hands around his throat like that? A. I was gunna kill him, that's what I went out to do, kill him, and I succeeded, didn't I." 41 A blood sample was taken from the accused by Dr Moynham at 8.00 am. The blood alcohol level of the accused was 0.18 grams/100 mls (Ex K). Upon that basis, it is possible to calculate the likely blood alcohol level at about 12.15/12.30 am, being the approximate time of the incident. Dr Moynham made that calculation. Because rates of elimination vary, the result must be expressed as a range of figures. Dr Moynham calculated that Mr Moffatt's blood alcohol reading at the time of the alleged offence would have been in the range of 0.277 to 0.375 grams/100 mls (T 96). On the assumption, which appears reasonable (cf Q 132), that Mr Moffatt and the deceased had continued drinking until shortly before the incident, Mr Moffatt's blood alcohol level was likely to be towards the lower end of the range, according to Dr Perl (T 97), whose evidence I accept. 42 Even the lower figure is, by ordinary standards, a high level of intoxication. However, the ability of Mr Moffatt to function, whilst affected by alcohol, cannot be measured by ordinary standards. Because he was an alcoholic, used to regular heavy drinking, he had developed significant tolerance to alcohol. The body is able to adapt to extremely high concentrations of alcohol (T 95). Some indication of Mr Moffatt's level of tolerance is provided by the video interview. Dr Moynham estimated that Mr Moffatt's blood alcohol concentration at the time of that interview (6.15 am) as being in the range of 0.206 to 0.232 grams/100 mls (T 99). Yet, Mr Moffatt appeared throughout the interview to be remarkably lucid. Dr Perl did not believe his cognition was significantly impaired (T 98). 43 Murder is a crime of specific intent. The Crown must demonstrate that, notwithstanding the level of intoxication, the accused intended to kill the deceased, or inflict grievous bodily harm. Mr Moffatt, in the passage extracted, said to the police that he intended to kill Mr Fyfe. His actions would suggest that he did so. Two matters, however, may indicate something less than an intention to kill. First, Mr Moffatt used the flat part of the hammer, rather than the head. The head was likely to do more damage, penetrating its target. Secondly, Mr Moffatt struck the deceased on the chest. He might just as easily have aimed at the head, producing greater harm. On balance, I am not satisfied beyond reasonable doubt that Mr Moffatt intended to kill Mr Fyfe. However, I am satisfied beyond reasonable doubt that the accused intended to inflict grievous bodily harm. The Role of Messrs Godfrey and Williams 44 Mr Godfrey and Mr Williams both asserted that they were asleep, drunk, during what I have termed the "final assault" (T 54 and T 71). 45 A neighbour, Ms Kelly Findlay, who entered the flat soon after Mr Fyfe's death, recalled a conversation with Mr Godfrey. Mr Godfrey indicated that he would tell the police (as he told this Court) that he did not know the deceased. According to Ms Findlay, Mr Godfrey said this: (T 92) "Q. Ronnie said something like, 'If I tell the truth I'll get in trouble anyway because I clobbered the guy over the head with a lump of wood'? A. That's right." 46 Upon the basis of that evidence, the following questions were put to Mr Godfrey: (T 58) "Q. Some time after the glass was smashed up, did you have an argument with the man who finished up dead? A. As I told you, he was a nice young bloke and he had caused no trouble, he was quite welcome to be there with me and my mates, whatever. Q. You didn't get angry with him and hit him with a hammer or a stick or something? A. You have got to be joking, I would never kill. I have shot rats and I have shot snakes and I always taught my boy, don't kill anything you can't eat, right. Q. I'm not saying that you killed him, I am just saying that you might have hit him with a stick or a hammer? A. No, there was nothing like that at all because he was just having a few drinks with me and a smoke like me other friends do. Some come and go all the time." 47 There is no evidence that the death of Mr Fyfe was caused by his being struck with a lump of wood. Indeed, neither Dr Lawrence, nor Dr Collins, thought that the blows to the chest of Mr Fyfe (which were consistent with the hammer) were a likely cause of his death (T 199). Further, the accused made the following statement to Sgt Hazlewood at 4.45 am, referring to Messrs Godfrey and Williams (T 118) "The old guys were pissed and they don't know Jack shit." 48 When the accused was interviewed later the same morning (the ERISP tape), he provided the following answers, referring to the interval between, what I have termed, the first insult (when he was called a "dog") and the second (when he was called a "mutt"): "A132. Yeah, well, we were sitting up drinkin', him and me, right? Q133. Yeah. A. Then the old fella and Billy were, they were, you know, they were passed out, you know, and he turned around and just called me a mutt for the second time and I wouldn't accept it." 49 I am satisfied beyond reasonable doubt that the Crown has excluded the actions of Messrs Godfrey and Williams as being implicated in the death of Mr Fyfe.