New South Wales Supreme Court CITATION : REGINA v. SCHUBERT [2000] NSWSC 1127 revised - 30/01/2001 CURRENT JURISDICTION: Criminal FILE NUMBER(S) : SC No. 70022 of 2000 HEARING DATE(S) : 28/11/00 - 30/11/00; 4/12/00 - 5/12/00 JUDGMENT DATE : 5 December 2000 PARTIES : REGINA v. SCHUBERT, Janis JUDGMENT OF : Greg James J at 1 COUNSEL : Crown: T. Hoyle, SC. Accused: J. Stratten SOLICITORS : Crown: S.E. O'Connor Accused: David Giddy & Associates CATCHWORDS : Criminal law - murder - judge only trial - intent - self-defence - Home Invasion (Occupants Protection) Act 1998 - Act a code - not necessary to determine whether immunity under Act wider than common law defence - onus and standard of proof - matters to be considered relating to reasonableness of grounds and necessity for self-defence - perception of accused - significant intellectual impairment - limited extent to which reasons should be given on an acquittal in a judge only trial. Criminal Procedure Act 1996 LEGISLATION CITED : Crimes Act 1900 Home Invasion (Occupants Protection) Act 1998 Murphy [2000] NSWCCA 297 Fleming (1998) 158 ALR 379 Zecevic v. DPP (1987) 162 CLR 645 CASES CITED : Hawes (1994) 35 NSWLR 294 Conlon (1993) 69 A. Crim. R. 92 Downes (1985) 18 A. Crim. R. 75 Cutter (1997) 94 A. Crim. R. 152 Maxwell (CCA, unreported 23 December 1998) DECISION : Not guilty IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION No. 70022 of 2000 GREG JAMES, J. TUESDAY 5 DECEMBER 2000 REGINA v. JANIS SCHUBERT JUDGMENT 1 HIS HONOUR: The accused Janis Schubert stands indicted for the crime of murder. She is charged that she did on or about 6 May 1999 at Hillsdale in the State of New South Wales murder Tony Sadek. To that charge she has pleaded not guilty. 2 An election under s.32 (1) of the Criminal Procedure Act 1996 (now s.16 of that Act) has been filed and accepted by the Director of Public Prosecutions and in consequence she has proceeded to trial before me rather than before a jury. 3 On such a trial s.17 of the Criminal Procedure Act applies. Section 17 provides:- "(1) a judge who tries proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury. (2) a judgment by a judge in any such case must include the principles of law applied by the judge and the findings of fact on which the judge relied. (3) if any act or law requires a warning to be given to a jury in any such case the judge is to take the warning into account when dealing with the matter." 4 On my reading of that section I am required to make findings so that I will reach a verdict. I am required to include in my judgment the principles of law I have applied, the findings of fact which I make and such warnings as the law requires be taken into account. 5 In Regina v. Murphy [2000] NSWCCA 297, a Court of Criminal Appeal comprising the Chief Justice, Grove and Kirby, JJ. examined the contents of what should be included in a judgment by a judge under these provisions. In particular, examination was made of the effect of the decision of the High Court in Fleming v. The Queen (1998) 158 ALR 379. In the judgment of Kirby, J., with whom the Chief Justice and Grove, J. agreed, appeared a statement of the statutory obligations to comply with s.17 at paragraphs 47-48. His Honour considered the extent to which it was necessary to canvass the individual matters in evidence in the reasons for judgment at paragraphs 50-53. 6 What has been said in that decision and said by the High Court in Fleming (supra) is, however, to be considered in the context that the function that I am performing is as a tribunal of fact as well as law, performing, in respect of the fact finding function, that role that a jury would otherwise perform. 7 The contents of the reasoning that must be exposed in such a judgment is affected by that role and also by the very nature of the criminal proceedings in which the onus and standard of proof bear so heavily. 8 It is clear that I must be satisfied beyond reasonable doubt of the elements of the offence charged and any alternative offence. It is clear that the onus is on the prosecution so to satisfy me, absent any statutory requirement otherwise for any particular defence or partial defence, for instance, such defences or partial defences as mental illness or diminished responsibility. 9 Here, no question arises of either of those matters, notwithstanding there has been raised before me questions of reduced intellectual capacity. 10 What has been raised are matters going to acquittal and an alternative offence of manslaughter arising either by reason of the application of the unlawful and dangerous act doctrine or by reduction of the offence from murder to manslaughter by reason of provocation (see s.23A of the Crimes Act 1900). 11 It is necessary to consider firstly the elements of the primary offence of which the accused stands charged. Murder in New South Wales shall be taken to be committed in the circumstances provided for by s.18 of the Crimes Act. 12 In this case it is necessary for the Crown to prove beyond reasonable doubt an act of the accused which caused the death charged and which was done with the requisite intentional state under the section, that is, done with intent to kill or with intent to inflict grievous bodily harm or done whilst referring to the probability that death might be caused to the deceased but done anyway. And in each case it is necessary that what the accused did with the requisite intent was done without lawful cause or excuse or was not done in defence of herself or another. 13 The definition of murder in the Crimes Act catches up the common law relating to malice insofar as that common law is embodied in the s.5 definition of that concept in that Act and the common law as to self-defence which has recently been expressed by the High Court for Australia in Zecevic v. The Director of Public Prosecutions (1987) 162 CLR 645 and for New South Wales in Regina v. Hawes (1994) 35 NSWLR 294 at 396, and Regina v. Conlon (1993) 69 A. Crim. R. 92 at 97. 14 It therefore becomes necessary for me to consider whether, on the evidence, I am satisfied beyond reasonable doubt of the elements of the offence of murder and that the accused's action causing the death was not done in defence of herself or another (as that matter is to be considered in the light of the authorities) subject to one further matter to which I will now turn. 15 In this case self-defence has been raised on the evidence but it has been raised in particular in a context in which the evidence deals with the entry into premises, shared by the accused with her fiancee, by the deceased, which entry commenced an assault by the deceased upon the accused and her fiancee. That assault immediately preceded the act upon which the Crown relies for the occasioning by the accused of the deceased's death, that act being the stabbing by the accused of the deceased. 16 Consequently not only has common law self-defence been raised, but also provocation under s.23A (to which I will turn if necessary) and also the applicability of the Home Invasion (Occupants Protection) Act 1998. 17 I have had the benefit of extensive written submissions from both the Crown and the defence concerning the ambit of that Act. Further, I have had the benefit of extensive written submissions from the Crown and the defence concerning the evidence and such factual findings as I might make. 18 The Act provides by s.4 a definition of the term intruder. A person is an intruder for the purposes of the Act if:- "(a) the person makes an unlawful entry into a dwelling house; and (b) an occupant of the dwelling house believes that the person, in addition to the unlawful entry, has committed or is committing a crime in the dwelling house against an occupant of the dwelling house or the property of, or within, the dwelling house." 19 The evidence to which I will turn later clearly establishes that the deceased was an intruder as so defined. The Crown does not make any submission to suggest but that the deceased's actions were such that the definition of intruder applied to him. I am entirely satisfied that he was an intruder within that definition. 20 Section 6 of the Act provides that the occupants of the dwelling house (and the Crown makes no submission to suggest that the accused was other than within that concept and so I find) may act in self-defence against an intruder if the occupant believes on reasonable grounds that it is necessary to do so. 21 Section 7 provides for the occupants to act in defence of others on the same basis. 22 Section 9 provides whether grounds are reasonable grounds for the purposes of ss.6 and 7 is to be determined having regard to the belief of the occupant based on the circumstances as the occupant perceived them to be. 23 By s.10 the onus of proof to rebut the occupants having that belief or not having reasonable grounds for that belief is placed squarely on the Crown and the standard is beyond reasonable doubt. 24 Section 11 confers an immunity from criminal liability upon a person whose actions fall within the statutory provisions to which I have referred. 25 In the extensive submissions on the law, debate has proceeded on whether the Act confers a possibly wider protection than the common law of self-defence, as considered in those cases to which I have already referred. Submissions were put that it abolished the necessity for proportionality in response. The Crown expressed the view that the Act may in fact be wider in its ambit as conferring protection upon an accused than the common law of self-defence. 26 Suggestions that were put in argument included that common law self-defence remained notwithstanding the passing of the Act even as applicable to the home invasion situation to which the Act speaks. I do not accept that suggestion. 27 Provided to me on these questions, was the second reading speech of the Minister for Police, the debate in the Legislative Assembly and the second reading speech in the Legislative Council by the Honourable the Attorney General on the Bill. That last speech clearly sets out the ambit that it was thought the Act might have. The debate and the speech of the Minister for Police make it quite clear that proportionality is retained. 28 The Honourable the Attorney General on 21 October 1998 in the Legislative Council (in Hansard at 8704) echoes what had been said elsewhere as to the bill codifying and clarifying the law in relation to self-defence within the home. 29 The Attorney General recognises that self-defence under the current common law and the immunity conferred by the Act are alike in conferring in the relevant circumstances an entitlement to a complete acquittal. 30 The Attorney General says this:- "I turn now to discussion of the key provisions. Clause 6 seeks to codify the law of self-defence within the home for the occupants of dwelling house against intruders. The provision codifies the settled common law test that the accused must honestly believe on reasonable grounds that it was necessary to do what he or she did in self-defence. In the leading case of Zecevic in 1987, the High Court stated:- 'The question to be asked in the end is simple. It is whether the defendant believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal.' 31 He continued:- "In other words, in order to obtain a conviction in cases where self-defence is raised, the prosecution must establish beyond reasonable doubt that the defendant did not believe on reasonable grounds that it was necessary in self-defence to do what he or she did. The definition is balanced in two ways. First, the defendant must have actually believed that the degree of force used was necessary. Second, that belief must have been based on reasonable grounds. These two elements build into the law in this area the crucial concept set of proportionality." 32 The Attorney continued to describe the relevant provisions of the Bill and in particular referred to clause 6 and also clause 7 as conferring the right to protect others in addition to the right to protect oneself. 33 In discussing Clause 9 which codifies, he said, the interpretation placed on the reasonable grounds required under the Zecevic test, the Attorney said as follows:- "That is, it states that the reasonable grounds requirement discussed above should be interpreted with reference to the position and perception of the accused, and not with regard to some completely objective analysis. New South Wales courts have held that it is the belief of the accused, based upon the circumstances as the accused perceived them to be, which has to be reasonable, and not the belief of the hypothetical person in the position of the accused. So much is clear from the leading New South Wales decisions of Regina v. Hawes in 1994 and Regina v. Conlon in 1993." 34 It therefore appears to me that in the belief of the legislators the Act was intended to codify the law relating to self-defence, defence of others and defence of property in and around the home. This accords with my own view of the terms of the Act. The immunity conferred by the Act has in this context replaced the common law in the relevant situation of the home (see Regina v. Downes (1985) 18 A. Crim. R. 75), at least to the extent that the common law is expressed by or included in what is said in the Act. 35 Insofar as the drafting of the Act may, as was submitted by counsel for the accused, have produced an immunity or defence which is wider in ambit than the common law defence, by reason of the utilisation of phraseology relating to reasonable grounds and belief in necessity, it will only be necessary for me to determine that if I am of the view that the actions of the accused did not fall within the ambit of the defence, as it existed at common law, and within the ambit of the provisions of the Act as far as they were suggested to extend by the legislature. The accused, in her account, denies intent to kill and asserts her act was done in defence of herself and her fiance. 36 Since, at common law and under the Act, the onus to rebut self-defence is on the Crown, the Crown must persuade me beyond reasonable doubt that the defence does not apply. 37 On this aspect, it is necessary to consider the evidence of what matters might have affected the accused's perception of her circumstances and of the circumstances of others. Her account to the police is before me by way of an extensive interview given by the accused voluntarily shortly after the events giving rise to the charge. 38 In addition there is in evidence what has been described as a "walk through" video in which the accused took police officers to the scene and described the various events to them. 39 Further, there was tendered by the defence two medical reports, being the report of a neuropsychologist Julie Hendy of 26 October 2000, together with the results of her clinical testing, and a report of Associate Professor Susan Hayes of 18 March 1999 of her clinical assessment of the accused. 40 It is sufficient to say that the observations contained in those reports concerning the intellectual impairment of the accused accord with her conduct and her answering of questions of the police in the interviews to which I have referred. 41 She is a person who is plainly suffering from a significant degree of mental impairment in her intellectual function. It is necessary to bear that in mind when having regard to the matters in evidence. 42 It is particularly necessary to have that in mind when having regard to her perception of the events and her perception of what she needed to do, so as to ascertain whether the existence of the defence has been rebutted by the Crown. 43 In the very helpful written submissions provided to me by the Crown and the defence, there is much which is of common ground. In those submissions the Crown reminds me that it is necessary for me, before being persuaded of the guilt of the accused, to be persuaded beyond reasonable doubt by the evidence that the act of the accused causing the death was unlawful and this would follow, by reason of an absence of self-defence, by reason of it being done maliciously or by reason of an absence of lawful cause or excuse. Those submissions remind me, and I direct myself accordingly, that the defence of self-defence applies to the principal charge of murder and the alternative charge of manslaughter. 44 In that regard the observations the Crown has made relate also to the immunity conferred by the Act. 45 The Crown in its written submissions sets out facts drawn from the evidence which are not in dispute:- "The accused is now 20 years of age (19 years at the time of the fatality) and suffers from mild intellectual disability. She has no prior criminal convictions and should be regarded as a person of good character. The deceased was 19 years of age at the time of his death and from all accounts was not previously prone to aggressive behaviour. The accused and her fiance were the lawful occupiers of the premises at 2/12 Brittain Crescents, Hillsdale ("the premises"). Without being invited, the accused (sic) came to the premises late on the evening of 5 May 1999. He repeatedly banged on the front door of the premises, which was opened by the accused. In an angry and aggressive fashion he pushed past the accused, pushing her with his hands so that she fell backwards. He then walked quickly to where Dauller Simao was seated and punched him a number of times around the side of his head and neck. The accused attempted to restrain the deceased whereupon the deceased responded by either pushing her back and/or punching her in the face and kicking her. The accused fell to the ground. The deceased again punched Dauller Simao before stating that his brother was outside and that his brother wanted to speak to Bradley Robinson. The accused telephoned the emergency number (000) and asked for the police to come to the premises. The deceased and Bradley Robinson left the flat. The accused went into one of the bedrooms and removed a large carving knife from a locked toolbox. The accused went outside and onto the driveway that ran parallel to the block of home units. It was here that the deceased was fatally wounded." 46 These facts set the scene for examination of particular matters in evidence at the trial and consideration of the crucial questions of intent and self-defence. 47 The premises were occupied on the occasion of the entry by the deceased, by the accused, her fiancee Dauller Simao, the person Bradley Robinson and another person Rohin Wilkes. Dauller Simao, Bradley Robinson and Rohin Wilkes have given evidence of matters relevant to those issues. 48 Bradley Robinson gave evidence that the deceased, leaving the premises, had been followed by the accused with the knife. That witness was some 13 paces down the driveway outside the premises. The deceased had left the premises only a couple or more paces. The witness gave evidence of seeing a downward motion by the accused with the knife, by a plunging action of her hand. He described the blade as projecting downwards from the fist, at one point, and in particular when he was reminded of his prior accounts. He had earlier in evidence described a motion of the accused's arm parallel with the ground, with the knife used in a spear-like fashion. His accounts in this regard were inconsistent. It was apparent to me that at times he appeared to be reconstructing events as he believed they might have been rather than describing what he himself had seen or experienced. I am unable to accept much of what he said, in particular, his evidence concerning the accused shouting two or three times or more, "I'm going to kill you" or, "I'm going to knife you" on which he was referred to a prior account given by him to the police. 49 Rohin Wilkes, who remained in the premises, gave evidence that the accused said words to the effect of, "I'm going to kill you" prior to her leaving the flat and before confronting the deceased immediately outside the flat at the place at which he met his death. 50 With Mr. Wilkes, too, I refer to matters which gave me reason to find his evidence unreliable. They are, in particular, his quite serious intellectual and reading deficits, acknowledged memory problem and prior inconsistent accounts. All were such that I felt that I could not rely upon what he said without dependable, independent corroboration on matters that were seriously in contest. 51 I note that I have, having regard to the provisions of the Criminal Procedure Act, administered to myself the requested warnings under s.165 concerning the credibility and reliability of Rohin Wilkes and Bradley Robinson for the reasons which I have expressed. 52 As to the things said to have been said by the accused, those things were not heard by Dauller Simao, (no relevant assault upon his credibility was made) and they were not heard by Mrs. Smith, a neighbour, who might have been expected to hear them. I found Mr. Simao's evidence highly persuasive. 53 For the purpose of ascertaining what the intent of the accused was at the time at which the action was done which caused the deceased to meet his death, I would not be prepared to depend upon those matters as being reliable pieces of evidence insofar as they are in contest and denied. 54 They are denied by the accused in the extensive interview that she gave. I consider her intent is best to be gauged from what she did and what she said concerning what happened. 55 There was some evidence, inconsistent though it was with other evidence from Mr. Robinson, that when she left the flat to meet the deceased just outside it, there was, according to Mr. Robinson, a "bit of a fight" before she stabbed him. That evidence from the only eyewitness does not assist the acceptance of his other accounts. 56 I have already referred to the incongruity of Mr. Robinson's evidence concerning the mode of stabbing. 57 The nature of the wound itself which involved, it was accepted, the piercing of the femoral artery in the groin, and there was no evidence to suggest any particular force was necessary for this to occur, does not itself bespeak a clear intention to kill (see Regina v. Cutter (1997) 94 A. Crim. R. 152 for an illustration of the reluctance one must have to draw a conclusion of a particular intent in specific factual circumstances). Nor am I satisfied of the mode of infliction of the wound such as would enable me to infer the relevant intent. 58 The accused in her interview refers to a physical altercation with the deceased in which she "just struck out and that was it". She refers to "getting him in the leg". 59 The Crown, in order to support its submission on intent to kill, intent to cause grievous bodily harm, or reckless indifference to human life (that intentional state is sufficient for the offence in New South Wales and would not appear to be the intentional state referred to as exempted from the operation of the defence of self-defence by the High Court in Zecevic (supra)) refers to a belief by the accused that she had been raped by the deceased on the evening of 4 May; that she was in any event, whether raped or not, angry at the deceased since she might, in her consideration of possibilities, have been infected with a life threatening disease or might have been jealous of his involvement with some other woman. 60 In this regard, the Crown submits that, taking these matters in context, including her obtaining the knife and following the deceased as he went out of the door of the flat, one could accept sufficient of Bradley Robinson's description of what occurred with what she said in her interview so that one could accept beyond reasonable doubt that she intended to kill, intended seriously to injure or looking at the probability that she might kill and realising she might kill, taking the action that she did. 61 The Crown submitted:- "The evidence is more consistent with a finding that the attack by the deceased was over and no immediate peril was imminent. In those circumstances the pursuit by the accused of the deceased could be seen as action by her to seek revenge or punishment of the deceased." 62 That submission as expressed recognises the essential problem with which this trial has been concerned. It is not a matter of seeing whether there is some "more consistent" evidentiary basis for guilt, but whether I am satisfied beyond reasonable doubt that the accused had the requisite intent, and did the requisite act other than in the exercise of self-defence as she perceived to be necessary having regard to her perception of the events. 63 There could be no doubt that the attack on Dauller Simao and on her by the deceased was a very violent and vicious attack and was so perceived. Whatever may have motivated it, whatever it may have had to do with whatever relations she may have had with the deceased a day earlier, or whatever it may have had to do with what Dauller Simao may have said to someone else, there appears on the evidence unanimity that the home was invaded and the occupants attacked, that the occupants had the basis, on reasonable grounds, to perceive that they were at risk of attack. And there is no evidence to rebut the asserted belief by the accused that the deceased might return or might have been a threat to her friend outside. 64 It is not a matter of whether I think it is probable that she was right in what she might have believed. I must be satisfied beyond reasonable doubt that she did not believe those matters or had no reasonable grounds for that belief, having regard to her perception of the events. 65 There is nothing in the evidence which would rebut the proposition that the deceased, having assaulted the persons inside the premises, was linking up with his brother outside the premises and likely to return or to remain in the vicinity of the premises with hostile intent, when one has regard to the matters which the accused says she perceived. 66 The prior sexual events have little bearing on these questions. 67 The Crown submits that there was no evidence from which the Court could infer that the deceased was the initial aggressor towards the accused after she came outside with the knife. I have already referred to evidence from Bradley Robinson on that question. But the true issue is whether there is evidence, having regard to the prior assault, from which I would infer, that the accused was the aggressor when she came outside with the knife. In that respect the Crown refers me to her request to the deceased to "Leave us alone" and the deceased's reply "Piss off, leave me alone". "Why are you doing this to me.". 68 From that, even in the total context, I do not derive the proposition that the accused was embarking upon an aggressive attack on the deceased or utilising violence towards him, except for the protective purposes for which the immunity under the Act and the defence at common law exist. 69 It is not necessary for me, therefore, in the circumstances of this matter, to go further. It is not necessary for me to consider further the defence of provocation or the alternative charge of manslaughter. 70 It is important, having regard to the decision to which I have come, that I make it clear that in my view the reasons which I give under the section of the Criminal Procedure Act are not to be regarded as reasons for someone being acquitted of an offence. To look at them in that way would be to suggest a reversal of the onus of proof. At law, unless the tribunal of fact is persuaded beyond reasonable doubt that the offence has been made out, that tribunal is required to acquit. They are reasons why I am not persuaded of the accused's guilt. 71 The lack of persuasion of a relevant matter is something which can be explained to some extent by a rejection or a non acceptance to the requisite standard of particular items of evidence but need not be, and indeed should not be, the cause of the explication of the entire reasoning process lest, in the reasoning, the onus is reversed. It is necessary, however, that I say sufficient to meet the parties' right to expect that the arguments and evidence would be dealt with in such a way that it could be understood as to what had been accepted or rejected, and what process of reasoning had occurred (see Regina v. Maxwell (CCA, unreported 23 December 1998)), and it is also necessary that deficiencies in proof be exposed publicly for the public purpose of the judgment. But it is not necessary, in my view, nor desirable, that reasons should be given beyond that, where the tribunal has, as I have here, come to the view that the accused should be acquitted of the offences charged. 72 My verdict is that the accused is not guilty of the charge of murder and not guilty of the charge of manslaughter and I enter a judgment of acquittal accordingly. Last Modified: 01/31/2001 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.