New South Wales Supreme Court CITATION : Regina v Christov [2006] NSWSC 972 28.08.06 30-31.8.06 HEARING DATE(S) : 4-5.9.06 8.9.06 11-12.9.06 14.9.06 JUDGMENT DATE : 22 September 2006 JURISDICTION : Common Law Division Criminal List JUDGMENT OF : Kirby J DECISION : Verdict - guilty of murder; Conviction recorded. CATCHWORDS : Criminal Practice & Procedure - murder trial - Judge sitting alone - judgment on verdict - victim strangled - elements of murder - whether substantial impairment by abnormality of mind - morbid jealousy - history drug abuse - victim defended herself with knife - whether accused suffered acute anxiety disorder - no substantial impairment. Crimes Act 1900 LEGISLATION CITED : Evidence Act 1995 Mental Health Act 1990 PARTIES : Regina Ivan Christov FILE NUMBER(S) : SC 2005116 COUNSEL : D Howard SC (Crown) C Nash/D Kang (Acc) SOLICITORS : T Hammond - DPP (Crown) Ford Criminal Lawyers (Acc) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST DAVID KIRBY J Friday 22 September 2006 2005/116 REGINA v Ivan CHRISTOV JUDGMENT ON VERDICT 1 KIRBY J: At about 1.00 am on 11 January 2004, the body of Lynette Phillips was found in the front bedroom of her home at Engadine. She had been strangled. Two ligatures had been tied tightly around her neck. Ambulance officers were unable to revive her. They ceased any attempt at resuscitation at 1.45 am. 2 On 28 August 2006, Ivan Christov was arraigned before me upon an indictment expressed in these terms: "For that he, on or about 10 January 2004, at Engadine in the State of New South Wales, did murder Lynette Phillips." 3 Mr Christov pleaded not guilty to murder, but guilty of manslaughter. The Crown refused to accept that plea and the matter proceeded as a trial for murder. With the consent of the Crown, Mr Christov elected to be tried by a Judge sitting without a jury (Exhibit A). The issues. 4 The Crown therefore is obliged to prove beyond reasonable doubt the elements of murder which, relevantly, are as follows: · First, that Lynette Phillips died. · Secondly, that her death was caused by the actions of Ivan Christov in strangling her by means of two ligatures. · Thirdly, that at the time of carrying out these actions, Ivan Christov intended either to kill Lynette Phillips or at least cause her grievous bodily harm, that is, really serious bodily injury. 5 Having received advice, Mr Christov made a number of admissions, as set out in Exhibit B, namely: "1. On the night of 10th January 2004, Ivan Christov assaulted Lynette Phillips in her home at 10 Higgerson Avenue, Engadine, NSW. 2. At about 1 am on 11th January 2004, Lynette Phillips was found on the floor of a room of her home, with two ligatures tied around her neck. 3. Lynette Phillips' death was caused as a result of strangulation from the said ligatures. 4. After the said assault, the accused Ivan Christov left 10 Higgerson Avenue in Lynette Phillips' vehicle and also took her mobile phone, number 0414.402.233. 5. Ivan Christov was apprehended by police on 12th January 2004 after a high speed chase on the Hume Highway north of Albury NSW. 6. The chase ended when the said vehicle left the Hume Highway and crashed. 7. After the crash the accused was taken to Wagga Hospital where he was treated." 6 It will be noticed that Mr Christov does not admit tying the ligatures around the neck of Lynette Phillips. He said in evidence that he had no recollection of having done so. Nonetheless, he accepted that there was, to use his words, "a big possibility" that he had tied the ligatures and was responsible for her strangulation. I will later refer in some detail to the evidence concerning the events of that evening. I have no doubt that Mr Christov did tie the two ligatures around Ms Phillips neck and was responsible for her death by strangulation. I also have no doubt, for the reasons I will provide, that at the time the ligatures were applied, Mr Christov intended either to kill Ms Phillips or at least cause her grievous bodily harm. I will return to the issue of intention later. 7 Mr Christov's account of that evening included an assertion that he was attacked by Ms Phillips with a knife. He said that he received a number of injuries as a consequence of that attack. Ms Nash of counsel, appearing on his behalf, nonetheless made it clear that it was not suggested that Mr Christov's actions thereafter, which led to the death of Ms Phillips, were in self defence (T477). I am, in any event, satisfied beyond reasonable doubt, for the reasons I will provide, that the Crown has excluded any possibility that Mr Christov was acting in self defence (s418 Crimes Act 1900). I have no doubt, therefore, that the Crown has established the elements of murder. 8 The real contest during this trial has concerned the partial defence of substantial impairment by abnormality of mind. Section 23A of the Crimes Act 1900 is, relevantly, in these terms: "s23A(1) A person who would otherwise be guilty of murder is not to be convicted of murder if: (a) at the time of the acts or omissions causing the death concerned, the person's capacity to understand events, or to judge whether the person's actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and (b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. ... (3) If a person was intoxicated at the time of the acts or omissions causing the death concerned, and the intoxication was self-induced intoxication (within the meaning of section 428A), the effects of that self-induced intoxication are to be disregarded for the purpose of determining whether the person is not liable to be convicted of murder by virtue of this section. (4) The onus is on the person accused to prove that he or she is not liable to be convicted of murder by virtue of this section. ... (8) In this section: underlying condition means a pre-existing mental or physiological condition, other than a condition of a transitory kind." 9 It was said on behalf of Mr Christov that three matters in combination had produced an abnormality of mind which had substantially impaired his understanding of events, his ability to judge whether his actions were right or wrong, or his ability to control himself. First, he had used and abused drugs, and especially amphetamines, over a long period, with occasional psychotic effects. Secondly, he was suffering from what may be described as "morbid jealousy". Thirdly, the attack upon him by Lynette Phillips with a knife had induced an anxiety reaction which in turn had caused a delusional and dissociative state, such that he had little or no recollection of his actions thereafter, including his actions in strangling Ms Phillips. 10 Let me turn to the evidence concerning the relationship between Lynette Phillips and the accused. The relationship with Ms Phillips. 11 Mr Christov was born in Czechoslovakia. There is some uncertainty as to his date of birth. The date which appeared on his licence (Exhibit C - # 35) and the date he provided to Drs Skinner and Giuffrida was 26 July 1950, which would make him 53 years old at the time of these events. However, the date of birth on the application for an Apprehended Violence Order, prepared by the police on 4 January 2004, was 31 May 1947. That document presumably reflected the information in the police computer system taken from Mr Christov's criminal history, to which I will later refer. 12 However that may be, Mr Christov arrived in Australia in about 1970. He is a large man, variously described as five feet eleven inches or 6 feet tall weighing in excess of 100 kilograms. He worked as a truck driver for a removalist company. He frequently drove trucks interstate. 13 Ms Phillips was born on 24 July 1952. She was divorced and had three children, one of whom, Danielle, lived at home. She owned a business known as the Rockdale Trading Centre on the Princes Highway at Rockdale, which was a pawn shop. She was physically much smaller than Mr Christov. She was a slim woman weighing 61.5 kilograms and measuring 1.61 metres, or 5'3". 14 Ms Phillips met Mr Christov in September 2003, that is four months before her death. Mr Christov returned from an interstate trip on a Friday night. He was too late to pick up his wages. He went to the Rockdale Trading Centre and pawned his mobile phone to obtain enough cash for the weekend. He told the centre that he would return on Monday to reclaim the phone, since he needed it for another interstate trip on the Tuesday. He removed the SIM card from the phone. 15 When Mr Christov returned the following Monday, his phone could not be found. He was angry and asked to see the manager. He then met Lynette Phillips. Ms Phillips provided a substitute phone whilst they searched for the missing phone. Mr Christov returned to the centre later in the week. By that time, his phone had been located. He invited Ms Phillips to coffee. She accepted and they began seeing each other. 16 For a time their relationship went well. She was described by one of her employees as "happy". Mr Christov was invited to her home at Engadine. They had sexual intercourse. He would sometimes stay over. He quite often came to the shop, especially on a Friday night and at the weekends, having spent much of his week interstate. He was introduced to staff as Ms Phillips' boyfriend. 17 Mr Christov gave evidence that, from his perspective, everything was "beautiful" until the end of November 2003. His work, however, regularly took him to Melbourne and Brisbane. Ms Phillips would telephone him on his mobile phone. She was distrustful and jealous. He said that she would accuse him of having women, "sluts", in the cabin of his truck. She resented his refusal to take her with him, disbelieving his assertion that he was forbidden to do so by his employer. He also said that she had repeatedly asked him to marry her. He refused because he enjoyed being single. He had no wish to marry. 18 There are a number of reasons why the evidence of Mr Christov must be approached with caution. First, he is providing one perspective concerning a relationship in circumstances where the other person to the relationship is not able to respond. Secondly, it will become clear from my examination of later events that, where it is possible to check the account of Mr Christov by reference to the observations of others or objective facts, he is demonstrably unreliable as an historian. Thirdly, it was also suggested that it was an aspect of his morbid jealousy that he was incapable of appreciating his own jealousy, which he simply attributed to Lyn Phillips. I will return to that aspect when I examine the psychiatric evidence. 19 Ms Phillips made a statement to the police on 4 January 2004. It was admitted as an exhibit (Exhibit C - # 12). It too must be approached with caution (s165(1)(a) Evidence Act 1995). As with a number of statements relied upon by the Crown, it is not a statement on oath and not an account which has been subjected to cross examination. Ms Phillips, in her statement, asserted that she ended the relationship with Mr Christov in late November 2003. Thereafter, he followed her on a number of occasions when she was driving. On one occasion he jumped into her car and pleaded with her, saying that he loved her. After two weeks she agreed to resume the relationship. 20 Ms Natalie Phillips, the deceased's older daughter, also made a statement. She corroborated her mother's account. She said that her mother broke up with Mr Christov three weeks before Christmas before she "weakened" and "went back to him". I think it likely that the account given by the deceased was accurate. 21 Mr Christov ceased work as a truck driver shortly before Christmas. Ms Phillips and Mr Christov spent Christmas together. They exchanged gifts. On New Year's Eve they went to Darling Harbour. According to his employer, Mr Christov was due to resume work on 2 January 2004 but did not do so. 22 Ms Phillips said in her statement that the relationship ended on 2 January 2004. She described what happened in these terms: (Exhibit C - # 12) "4. I officially ended the relationship last Friday 2nd January 2004. On that evening, I walked Christov to the car to say goodbye. Christov placed his arms around me and did not let me go. I had to scream before he let me go. Later that evening I was receiving telephone calls from Christov at 2am. Christov said, 'I'll be coming to the back of your house playing with your dog. Come down and talk to me.' I said 'no' and hung up. Later I had rocks lightly on my windows from Christov. Christov then went to the front door and started banging on the door trying to get me to open the door. I did not let Christov in." 23 Mr Christov gave an entirely different account. He could see no difference in their relationship after New Year. Indeed, on the night of 2 January 2004 they played strip poker. Several days later, on Monday 5 January 2004, he went to the shop to install shelving in order to assist Ms Phillips. He remained at the shop until 9.00 pm. Ms Phillips and Mr Christov bought take-away food which they ate together at the shop (T377). There was no argument between them. 24 The events which followed 2 January 2004 make it plain that the account given by Lynette Phillips was accurate and that provided by Mr Christov, quite inaccurate. Danielle Phillips provided a statement the day after her mother's death (11.1.04), which included these words: (Exhibit C - # 21) "8. About 8am on Saturday 3 January 2004, Ivan called our house and asked for Mum. I told him she was at work. Later that afternoon, Ivan phoned our place again and I answered the phone. Ivan left a message for Mum. The message was for Mum to take the Christmas presents that he gave to her and the rest of his belongings to Mum's work and he would pick them up from there. Ivan said to me that his relationship with Mum was over. He also said, 'I'll never hurt your mum. I'll never hurt you.' I then hung up. 9. Mum rang a short time later and told me that she had just broken up with Ivan. I don't remember if she told me all the details then on the phone or when she got home later that afternoon." 25 Later the same day, that is 3 January 2004, Mr Christov went to the shop. He refused to leave when it was closing time. The statement of Lynette Phillips said this: (Exhibit C - # 12) "5. ... Christov did not want to leave because he wanted to talk to me. I did not want to talk to him and I made that quiet clear to Christov. Christov finally left the building when police were on their way. By the time police arrived, Christov had left the area. While Christov was at my work, I felt intimidated and scared because I feel I cannot trust him when I'm alone with him. Christov has told me that he will get me in other ways, through the shop which I am not sure what he means by that." 26 An employee, Lip Meng (Billy) Thea, corroborated Ms Phillips' account. He said that Mr Christov came to the premises at about 4.00 pm. The shop was closing. He heard an argument. Lynette Phillips repeatedly said: "Please leave, please leave." She threatened to call the police and only then did Mr Christov leave. According to Mr Thea, when the police arrived at 4.30 pm, Ms Phillips was still quite upset. 27 Another employee, Mr Edward Vicente, gave a similar account. Ms Philllips told him that she had broken up with Mr Christov. He recalled an argument at closing time. Ms Phillips asked him and Billy Thea to wait back until Ivan had left. She told him she was frightened of Mr Christov. Mr Vicente said that Mr Christov left only once the police were called. At that point Ms Phillips was crying. He gave the following description of the argument between them: (Exhibit C - # 25) "15. Ivan got quite heated when arguing with Lyn. I got the feeling it may get physical and Lyn might get hurt, so I kept checking on her while she was in the shop with Ivan." 28 On Sunday 4 January 2004, there was a further incident. Ms Phillips, in her statement, described what occurred in these terms: "6. About 3.40pm on that same day, Christov has arrived at my work. He was banging on the door with his hands. Christov was yelling: 'I want to talk to you'. I said, 'I've got nothing to say'. Christov did not go away, he said 'I can't talk to you through the door, come out in the street.' I said 'no'. I then went and put the jewellery in the safe. When I came back Christov was still outside. Christov was standing in between the front door of my work and my car. I knew that he was not going to let me get into my car if I was to open the door. I stood in the shop for a short time, I went over to the door where I usually leave. As I located the front door, I put my foot on the front door so Christov could not open the door. The door could only open about 2 inches. Christov has then pushed the door from the outside with his hands. Christov has also placed his foot near the door, so he could open the door wider. At this time I felt scared. I kept saying to Christov 'leave me alone, leave me alone.' He said 'I've moved and you won't be able to find me.' I said 'just leave me alone, I don't want to see you.' Christov said, 'You're picking on the wrong person, you'll play fire with fire. I'll give you fireworks.' While he was saying this, I pressed the duress alarm, which was near the front door. This alarm sets off the sirens in the shop. Christov closed the door and walked away. A short time later, police arrived at the shop. The door was locked and Christov could not get inside." 29 Constable Nicole Gallagher gave evidence that she went to the Rockdale Trading Centre at 4.15 pm. She saw Ms Phillips, who told her what had happened. She also described her relationship with Mr Christov. As she spoke she was shaking and her voice was trembling. Constable Gallagher made a note of their conversation. Ms Phillips told her that Mr Christov had put his foot in the door. He had said that he would not harm her or her daughter; that, if he was going to get her, it would be through her business. Mr Christov, according to the account given to Const Gallagher, added these words: (T157) "You're picking on the wrong person, and you'll play fire with fire." 30 It is instructive to examine Mr Christov's response to this evidence in more detail. He said that he was always welcome at the shop until 10 January 2004, when the Christmas presents were returned (T378). He recalled an occasion where the duress alarm was pressed, and the police summoned. It was some weeks before. It concerned a thief who had stolen a valuable watch. Ms Phillips had never pressed the duress alarm during the course of an argument with him (T378). He denied banging on the door or putting his foot in the door. As to the alleged threats, Mr Christov was asked the following question during examination in chief: (T308) "Q. So you're saying that if you did make a comment 'You're taking on the wrong person, you'll play fire with fire, I will give you fireworks', that wasn't necessarily something that was said in a threatening way on 4 January? A. If I said some things like that, I never meant it to threaten her. It is just simply my saying. It is big possibility what I said it 'you're going to play fire with fire'." 31 When cross examined the next day by the Crown, Mr Christov was asked much the same question. He responded as follows: (T377/8) "Q. Well, she goes on to say that - and this is referring to this incident on 4 January - that you said to her, 'You're picking on the wrong person. You'll play fire with fire. I'll give you fireworks.' You said those words, didn't you? A. I did not." 32 This is but one illustration amongst many of Mr Christov's unreliability as a witness. Moreover, the history he provided to Dr Giuffrida on 21 February 2001 contradicted his denial of this incident. Dr Giuffrida's report included the following, referring to the events of early January 2004: (Exhibit 6(1) - p6) "He said that Ms Phillips argued with him in front of employees at or about that time in early January and that the police were called and he left the premises. He said that Ms Phillips then telephoned him about an hour later, asked him to return to her shop and they had sexual intercourse in her office. He said that he was thoroughly confused by her behaviour towards him, particularly the obvious ambiguity and contradictions in her behaviour." 33 The only puzzling aspect that gives any credence to Mr Christov's account is that Danielle Phillips, in her statement, suggested that her mother telephoned her after the close of business on Sunday 4 January 2004. She said that she was having coffee with a friend and would be home soon. Her mother later admitted that the "friend" was Ivan Christov whom she saw at Gloria Jeans, a coffee shop at Sutherland. 34 Was the account given by Danielle Phillips accurate? It is difficult to resolve that issue on the material I have. The witnesses to these events, including Danielle, were not called. Their statements were tendered by consent. Constable Gallagher, however, was called. She said that she went to the Rockdale Trading Centre at 4.15 pm on Sunday 4 January in response to a radio message reporting the duress alarm. Having spoken to Ms Phillips, she advised that it would be difficult to obtain an Apprehended Violence Order since Mr Christov had not broken the law. Constable Gallagher then returned to the police station and entered the name "Ivan Christov" into the COPS computer system to determine whether he was known to the police. She found that he was indeed known and had quite an extensive criminal history. That history was later recorded in the application for an Apprehended Violence Order in these terms: " Other relevant information: The defendant has an extensive criminal history, which includes 3 counts of sexual assault, numerous assault charges and has been the defendant of 7 previous domestic matters, the majority of which involved similar circumstances of a threatening and stalking behaviour. It is the defendant's criminal history that has prompted police to apply for an order." 35 Constable Gallagher then spoke again to Ms Phillips. She said that she had fears for her safety. I infer that she told Ms Phillips of Mr Christov's criminal history. I also think it likely that Ms Phillips did not know that history, or all of it. Arrangements were made the same day to obtain a statement from Ms Phillips. I infer that she attended the police station for that purpose. She saw Const Chalmers, who took a two page statement which is signed and witnessed, with Ms Phillips and Const Chalmers each noting the date, 4 January 2004. 36 Since the initial conversation between Lynette Phillips and Const Gallagher occurred some time after 4.15 pm, that sequence does not leave much time for coffee with Mr Christov. It is possible that Ms Phillips did have coffee with him, either after the incident the night before (3 January 2004), in which case Danielle is confused as to the date, or even after the incident on 4 January, but before Const Gallagher rang back. 37 Even if Ms Phillips did have coffee with Mr Christov, I have no doubt that it was before she was warned by Const Gallagher of his criminal history and before she made the statement of 4 January 2004 which was then used as the basis for the application for the Apprehended Violence Order. I also have no doubt that Ms Phillips was frightened of Mr Christov. If she met him on 3 or 4 January in a coffee shop, it was in a public place in the hope that they could have a civilised parting and that he would leave her alone. 38 It will be remembered that Mr Christov, in rejecting the suggestion that he had broken up with Lynette Phillips on 2 January 2004, asserted that he was at the shop installing shelving on Monday 5 January 2004. The statement of an employee, Billy Thea, provided insight into that aspect of Mr Christov's account. On Monday 5 January 2004, Ms Phillips rang Billy Thea at about 9.00 am. It was his day off. She said that she was short staffed and asked him to work. Mr Thea agreed to do so and went to work late. 39 Mr Thea, at this time, lived at a unit at Penshurst. His girlfriend had moved out of the unit shortly before Christmas. Mr Christov approached Mr Thea soon after his girlfriend moved out and asked whether he had a spare room. Mr Thea agreed to allow Mr Christov to occupy a room. Mr Christov then moved certain belongings into the flat, although he rarely stayed there. Returning to Monday 5 January 2004, Mr Thea in his description of what happened that day, said nothing about Mr Christov being at work installing shelving. Nor did any other employee of the Trading Centre. Mr Thea said he came home from work that evening and saw the spare keys he had given Mr Christov on the coffee table. Most of Mr Christov's clothes and belongings were gone. He assumed that Mr Christov had moved out in the course of the day. I do not accept Mr Christov's account that he was at the shop on Monday 5 January 2004. Nor do I accept his relationship with Ms Phillips continued after the break-up on 2 January. 40 On Tuesday 6 January 2004, a friend of Ms Phillips, Mrs Lynette Paton, came to her home at Engadine at about 6.30 pm. Later they left the house for a time and then returned. After they returned, Lynette Phillips said "he is going past again". She was noticeably concerned and nervous. Mrs Paton saw the distinctive white Mazda MX6 belonging to Mr Christov. She had met Mr Christov and recognised him as the driver. Ms Phillips told her of the application for an Apprehended Violence Order. She also said that it had not been served. Mrs Paton added this: (Exhibit C - # 9) "That she had broken off the relationship the previous week, because he was becoming extremely controlling, possessive and jealous, accusing her of having affairs with other men." 41 When returning to the house, Mrs Paton and Ms Phillips drove around the area for ten minutes to ensure that Mr Christov was not parked nearby. Mrs Paton waited whilst Ms Phillips went inside the house and checked that no-one was there. She only left once Lyn Phillips had been upstairs and downstairs and had turned the lights on and come to the door. 42 On Wednesday 7 January 2004, Const Holloway attended the Kogarah Local Court to file the complaint and summons seeking an Apprehended Violence Order on behalf of Ms Phillips against Mr Christov. The complaint was listed for mention on 22 January 2004. Constable Holloway spoke to Ms Phillips in the course of the day, seeking an address for Mr Christov. Ms Phillips provided such information as she had, including the name of his last employer, Peter's Removals at Hurstville. At about this time, Ms Phillips left Engadine to stay with her daughter on the Central Coast. 43 On Thursday 8 January 2004, Mr Vicente went to work at about 7.40 am. Soon after his arrival he left the shop in order to purchase cigarettes. As he returned, he saw Mr Christov in a coffee shop across the road from the Commonwealth Bank. They made eye contact. Mr Christov motioned for him to come across the road to speak. Mr Vicente said that he had too much work to do, an excuse which, no doubt, reflected the unpleasantness which had occurred a few days earlier. Mr Christov yelled back: "Just five minutes." Mr Vicente then crossed the road and spoke to Mr Christov. The conversation, according to Mr Vicente, was in these terms: (Exhibit C - # 25) "9 ... Ivan was sitting at a table on his own having a coffee and smoking a cigarette. I stayed standing and Ivan said, 'Has your boss come back from holiday yet?' I said, 'I did not even know she was on holiday.' He said, 'If she's riding a vehicle I hope she has an accident and I hope she dies, don't worry about Danny, her daughter I don't want her dead.' I said, 'Just let go, don't worry about it, move on with your life.' He said, 'You know she's been saying a lot of things, like to the staff, but the bottom line is, what she is saying is you are one of her best staff, are you the boss already.' I said, 'No, even though they appoint me, I won't take it because it's too much responsibility.' He said, 'Do you know Lyn told me you guys had a relationship.' I said, "Where did that come from and what does that have to do with this situation, what do you reckon?' He said, 'I reckon she's psycho, and she needs to see a doctor.' I said, 'What?' He said, 'Yeah, I told her that personally.' I said, 'Do you think she has lost the plot?' He said, 'Yes, she's crazy.' I said, 'I have to go, I have a lot of things to do, but never the less, sorry about the relationship, it didn't work out, but all the best Ivan.'" 44 When giving evidence, Mr Christov said that he remembered having coffee near the Rockdale Trading Centre and seeing Mr Vicente. He whistled for him to come across and speak. He could not recall a conversation about Lynette Phillips being on holidays, although he knew at one point that she went to the Central Coast. He denied saying that he hoped she would have an accident. He was emphatic, however, that the conversation did not occur on 8 January 2004, since he was in Wagga Wagga on that day, delivering furniture to a school teacher. 45 The Crown, in submissions, suggested that I should reject Mr Christov's evidence concerning his three day trip to Wagga between 7 and 9 January 2004 because it was implausible. There was no documentation in respect of any such work. He could not even provide the names of the persons with whom he had contracted. Mr Christov said that he arranged privately to take furniture to Wagga on 7 January 2004, returning to Sydney at 4.30 or 5.00 pm on Friday 9 January 2004. 46 What evidence is there, apart from Mr Christov's assertion, concerning this issue? Mr Billy Thea made a statement on 11 January 2004 which included the following: (Exhibit C - # 7) "16 Over the past week, while I have been working at the Rockdale Trading Centre, I have seen Ivan's car, the white Mazda MX6, drive past the shop on a number of occasions. The car would drive past slowly ... Lynette was not working on the 6th, 7th and 8th of January, 2004. It was during these days that I saw Ivan driving past." 47 However, the 000 call on the morning of 10 January 2004, to which I will shortly refer, included a number of references by Mr Christov to his absence from Sydney in Wagga in the days preceding that call. 48 I think it likely that Mr Christov did go to Wagga Wagga, returning late on Friday 9 January. However, it is less certain how long the job took. I think it likely that the job took less than three days and that Mr Vicente's account is accurate in its identification of early Thursday 8 January 2004 as the date and time of their encounter. Mr Vicente's statement was made on 11 January 2004, a matter of days later. I acknowledge the possibility, however, that the meeting may have taken place early on 7 January 2004. I accept that Mr Christov made the statement attributed to him by Mr Vicente. 49 Having returned from Wagga, Mr Christov dropped off a note at Ms Phillips' Engadine home. The note, dated 9.1.04, was addressed to "Darling Lyn" and was, with minor editing, in these terms: (Exhibit X) "Darling Lyn Just to let you know that I still love you as I told you. You always will stay in my heart. I don't know what to do with my life without you. I am slowly wasting my life. But if something happen to me I will go to hell as I don't believe heaven. In hell, I wait for my darling Lyn. You will follow my steps as I know you love me but just cannot admit it. Time will come when I will hold you in my arms again, and I will told you again Lyn I love you my Little Princess (I will marry you one day). So my darling as day begins and end I must close my letter till I see you just once more I love you. Roses are red my love is true I will wait my love Lyn in hell just for you. XOXOXO" 50 Ms Lynette Phillips returned to Sydney. It may be inferred that she got the note. Earlier in the day, at about midday on 9 January 2004, she had a lengthy telephone conversation with her friend, Ms Sonia Mapp. Ms Mapp worked in the jewellery section of the Rockdale Trading Centre. Lynette Phillips telephoned her at home. Whereas they usually spoke for ten or fifteen minutes, she spoke for two to three hours. She described at length her relationship with Mr Christov. She spoke of the difficulties that she was having and the precautions that she was taking. She said she would only lock the shop in the presence of "the boys", that is, in the presence of a number of male employees, never by herself. She would arrange for the boys to bring her car from the carpark to the front of the shop. She had seen Mr Christov following her on a number of occasions. On one occasion she became angry and stopped the car. She told him to stop following her and to leave her alone. He asked her to get into his car and talk. She did so. He told her he loved her and that he could not live without her. He said that he would never do anything to harm her children. When she tried to get out of the car he grabbed her by the arm. She said: "You're hurting me. You're hurting me." She ultimately managed to get away. 51 The following morning, Saturday 10 January 2004, Ms Phillips left her home in Engadine to drive to work at Rockdale. Shortly after, at a point close to the access road from Engadine to the Princes Highway, she stopped her car and spoke to Mr Christov. As she began speaking she pressed 000 on her mobile phone. The conversation was thereafter overheard by the 000 operator and recorded. It has since been transcribed, although parts of it are difficult to understand because of traffic noise. 52 Before going to the text of that conversation, it is instructive to examine why Ms Phillips stopped her vehicle and spoke to Mr Christov. The conversation occurred at 7.49 am. Once the conversation terminated, she went straight to the St George Police Station and explained what had happened. Senior Const Todd Holborow made a statement the following day (11.1.04) in which he recounted their conversation. He said that she arrived at about 8.00 am. His account included the following: (Exhibit C - # 14) "She said, 'When I was driving towards work on the highway, he was behind me flashing his headlights and stuff. I pulled over and he came to my car. He was saying that he still loved me and wanted to keep together." 53 There was a further discussion, which was in these terms: "I said, 'So whats actually taken place this morning?' She said, 'He's pulled me over, and kept saying that he loves me and wanted to get back together with me.' I said, 'And you told him no.' She said, 'That's right.' I said, 'Was he violent towards you at all this morning?' She said, 'No.' I said, 'Did he threaten you at all this morning?' She said, 'No he didn't ... '" 54 Mr Christov gave his version of this incident in the course of his evidence. He said that Ms Phillips rang him on Saturday 10 January 2004. By inference that call, if it took place, must have been before 7.49 am. According to his testimony, she said this, referring to the lingerie he had given her for Christmas: (T303) "Come and fucking pick your gifts up. I don't want them. I don't want to be looking like a slut." 55 He said she told him to come to the front of the shop, that is, the Rockdale Trading Centre. He responded with these words: (T303) "I said, 'Don't bother, I will come to Engadine and pick them up.'" 56 He said that when this conversation was taking place, he was in Sutherland driving towards Engadine. He saw Ms Phillips' vehicle and immediately did a U-turn. He flashed his lights and she pulled up. She had Danielle's boyfriend sitting beside her. Mr Christov said that they spoke for perhaps ten minutes before a police patrol car pulled up behind him. He was illegally parked. He excused himself in order to move his vehicle. He arranged to meet Ms Phillips outside her shop at Rockdale. He drove straight to the shop, as did Ms Phillips. They met immediately outside the shop as arranged. She returned his gifts and he returned hers. The exchange took place between 8.15 am and 8.45 am. 57 There is some common ground between these two versions. Mr Christov clearly followed Mr Phillips' vehicle and flashed his lights. She stopped her vehicle and spoke to him. The conversation in the 000 call, within moments of parting from Mr Christov, included Ms Phillips speaking to the operator in these terms: (Exhibit W(2) - p11/12) "(Phillips): Well he just stopped me and I flung open my door ... (Operator): So, it sounded like you've known this gentleman for some time the way he was going on. And I was listening for quite some time ... (Phillips): Yes, well ... ... 'cause I had no choice." 58 Regrettably, I do not have the telephone records relating to Mr Christov's mobile telephone, although one imagines that they would have been easy to procure. I do not accept that Mr Christov telephoned Ms Phillips shortly before their encounter at 7.49 am. I reject his evidence that Danielle's boyfriend was with her. There is no reference to her boyfriend or another person in the transcript of the 000 call. The encounter was intensely personal and private. When Ms Phillips spoke to the operator, she did not convey that the episode had been witnessed by a passenger. She went straight to the police station. When she related these events to the police, she made no reference to a passenger in her vehicle. 59 Nor do I think it likely that a police car pulled up behind Mr Christov or, if it did, that Lynette Phillips was aware of that fact. Again, Ms Phillips made no reference to a police car in the conversation with the operator that followed. It would have been relevant to have done so, since she was having difficulty in serving Mr Christov with the Apprehended Violence Order and provided information to the police as to Mr Christov's whereabouts in the hope that he might be intercepted. 60 I also reject Mr Christov's evidence that he and Ms Phillips went back to the Rockdale shop immediately after their conversation and exchanged Christmas presents. The presents, I believe, had already been returned. Danielle Phillips referred to an arrangement to return them made at the time of their break-up on 2 January 2004 (supra para [24]). Ms Phillips was told by the operator, after she parted from Mr Christov, that she should report the incident to the police at once. She said that she would. The operator said that he would phone ahead so they would know that she was coming. The evidence of Snr Const Holborow, as set out above, confirmed that is precisely what she did. She attended the St George Police Station soon after 8.00 am. 61 Senior Const Holborow made arrangements for Ms Phillips to be accompanied to work by two uniformed police officers. Mr Vicente made a statement on 11 January 2004 which included these words: "11. On Saturday 10 January 2004, I worked my normal shift which was from 8.30 am until 4.30 pm. I worked this shift with Lyn and some others. When I arrived at work, Lyn was out the front with two uniformed police officers." 62 With this introduction, let me return to the text of the conversation between Ms Phillips and Mr Christov on the morning of 10 January 2004, as revealed by the transcript of the 000 call (Exhibit W(2)). It is a very one sided conversation. Ms Phillips made the following comment at the beginning, and then said almost nothing else: (Exhibit W(2) - p2) "(Phillips): Look, I don't want to upset you, but I don't have to go out with you and I'm not ... " 63 Mr Christov responded that he was in love with her. Shortly after, he said this: (p3) "(Christov): ... I don't hate you yet. I don't hate you. I not gunna hurt you. (TRAFFIC NOISES) I don't hate you. I never gunna hurt you - (TRAFFIC NOISES) ... If I gunna hurt you, then I'm gunna hurt you mental, in the head ... " 64 There followed a conversation concerning whether Mr Christov had been driving past her work. He denied stalking her. He offered to produce his log book to demonstrate that he had been in Wagga Wagga. Although the transcript is incomplete, the following words were said, which I infer related to their break-up: (p5) "(Christov): ... it was the biggest shock in my life ... I left woman because of you." 65 Mr Christov, when giving evidence, said that until the brief was served long after his arrest, he did not know that an Apprehended Violence Order had been taken out against him. I reject that evidence. I believe he did know. Amongst other things, the 000 call transcript included these words spoken by the operator where he is reporting what he had heard: (Exhibit W(2) - p1) "(Operator): The female called police. She's saying something about ... (Christov): No, you don't have to ... (Operator): ... an AVO that's been broken ... " 66 The transcript also included the following: (p6) "(Christov): Then you can ... and also, and - (TRAFFIC NOISES) - AVOs on me like you told Billy that you have ... Billy ... that's all shit for me." 67 Immediately after this comment, Mr Christov said this: (p6) "(Christov): ... but I once I start hating you, I'm going to hurt you mentally ... In the head, I don't gunna hurt you physically. I don't gunna chase you, like, you said, you, you said in the shop, like, you scared what I gunna rob the shop. What about sweetheart, what happen, I'm ... the shop. What about when I screwed you? What about when I held hands with you? You think then I'm gunna rob your shop? ... worried, when I gunna rob ... " 68 Mr Christov told Ms Phillips that she was hurting his heart. He invited her to read his letter once more. He said: "I'm gunna die tonight." 69 He added: (p7) "I go to hell, but I die for you. And that's maybe I'm gunna have you again." The events of 10 January 2004. 70 The confrontation at the side of the road that I have just described occurred at 7.49 am on the day that Lynette Phillips was strangled, 10 January 2004. Before midnight, and probably soon after 11.08 pm, Mr Christov tied two ligatures around the neck of Lynette Phillips. It is instructive to examine, following a broad chronology, the material relied upon by the Crown as to the events of that day. I will then examine Mr Christov's version of events. 71 I have said already that Ms Phillips arrived at work some time after 8.30 am, escorted by two uniformed police. At 9.51 am, she rang her son Adam. She was then at work. The conversation, according to Adam, was in these terms: (Exhibit C - # 22) "11 ... Mum said, 'Can we get a security system installed at home?' I said, 'Why?' Mum said, 'I have taken an AVO out against Ivan because he has been hanging around the shop and at home. I have had to call the cops a couple of times to get him to leave. This morning I was heading off to work. He forced me to pull over and get my door open so I called triple 0. The cops said they couldn't do anything unless they pulled him over for a traffic offence or caught him in the act of breaking the AVO.'" 72 Ms Phillips' house at Engadine was in Higgerson Avenue. Behind Higgerson Avenue was Delia Parade, which was linked by a lane to Higgerson Avenue. Mr Jeffery Goon-Pan's home was 50 metres from the corner of Delia Parade and Perry Crescent. At about 11.30 am he noticed a two door Mazda sedan parked under a tree in Delia Street near the corner of Perry Crescent. He had earlier seen the vehicle come down Delia Parade a number of times and then drive away. At approximately 12 noon, he noticed a male walk from the Mazda sedan towards the laneway leading to Higgerson Avenue. He saw him enter the laneway. He provided a description of the man which broadly conformed to that of Mr Christov. The next day he noticed the white Mazda was in the same position. 73 There is no question that the vehicle described was that of Mr Christov. It was located by the police the next day and later identified by fingerprints and otherwise. I infer that Mr Christov was in the area at some point before midday. 74 Although Lynette Phillips was at work, her daughter Danielle was at home. Danielle spoke to her mother between 11.00 am and midday. Her mother told that she had placed pieces of wood against the laundry door (which was faulty) and against several windows to stop them being opened. Her mother also mentioned that she had spoken to Adam about a security alarm system. 75 At 2.15 pm, Danielle left for work. She checked the back door before she did so. It was locked. She remembered pulling the front door closed, which engaged the lock. She could not recall whether she also closed the outside security door. 76 At 3.00 pm Ms Phillips' other daughter, Natalie, telephoned her mother at work. Natalie Phillips lived with her partner, Wayne Mills, at Blakehurst. She had invited her mother to a bar-b-que that evening because she did not want her to be alone. When she spoke to Lynette Phillips by telephone, she said that she planned to take "a round about way to get there so he doesn't know where I am". 77 At 3.30 pm another resident of Delia Parade, Ms Lorelle Ahearn, noticed the white Mazda MX6 vehicle of Mr Christov. Her attention was drawn to the vehicle because it was parked too close to the corner and was unsafe. No-one appeared to be in the car at 3.30 pm. Shortly before 5.30 pm, however, she noticed a man at the rear of the car. She provided a description which was again recognisably that of Mr Christov. She said he was towelling himself down with a light blue towel, as though he had been for a swim or a run. There was a light blue towel in the boot of Mr Christov's car, as depicted in a photograph taken by the police the next day when the vehicle was recovered (Exhibit D - photograph 205). Ms Ahearn observed that the vehicle was still parked in the same position at 7.30 pm that evening. 78 At 4.00 pm Snr Const Holborow received a telephone call from Ms Phillips who was at work. Constable Holborow said this (referring to the attempts made that day to serve the Apprehended Violence Order): (Exhibit C - # 14) "6. I asked her if she knew the registration of the vehicle, she told me what it was which I also wrote down on the piece of paper. I can't recall the exact registration apart from it started with an AC ... I said, 'So is it your concern this morning that the AVO hasn't been served?' She said, 'I just know that it will be impossible to find his address, if you see him you could get that.' I said, 'Is he likely you think to go to your work?' She said, 'He has before.' I said, 'I will get some of our guys to come down there with you and have a good look for him. Is that OK?' She said, 'That would be good.' I said, 'If we do sight him, we can confirm where he is living. So you're sure there's been no violence or threats this morning?' She said, 'Yes.'" 79 At about 7.00 pm Danielle finished work. She rang her mother and made arrangements to be picked up from a party at the Engadine RSL. She asked to be picked up at midnight. Between 6.30 and 7.30 pm, Lynette Phillips arrived at Natalie's home at Blakehurst for the bar-b-que. Natalie described the evening in these terms: (Exhibit C - # 20) "... There was only the three of us at dinner being me, Wayne and mum. During dinner mum was upset and said to us that she was afraid of Ivan. I remember her saying that the 'day had started off really bad ... ' Mum said that she had taken an apprehended violence order out against Ivan earlier in the week because he was continually harassing her and attending her work. I think mum had taken the AVO out against him through Rockdale Police on Wednesday. We all had dinner, mum doesn't really drink apart (from) the occasional glass of wine and she didn't have anything to drink last night at my place." 80 When the autopsy was ultimately performed upon Lynette Phillips and a blood sample taken, there was neither drugs nor alcohol in her system. Lynette Phillips mentioned to Natalie that she was picking Danielle up at midnight and intended to go home first. She left at some time between 9.30 and 10.00 pm to drive home to Engadine. 81 At 11.08 pm two calls were made from her mobile phone, one for less than 40 seconds to 000 and the other to her daughter Natalie's mobile phone. The latter was answered by Wayne Mills. Lynette Phillips' name as the caller appeared on the screen of his phone. However, no words were spoken. There was simply a loud rustling sound as if the phone was inside a handbag. Mr Mills telephoned Lynette Phillips, both on her mobile and on the house phone. However, there was no response. He assumed that she had accidentally pushed the wrong button as she had occasionally done in the past. He and Natalie then went back to sleep. 82 There can be little doubt that these calls were an attempt by Lynette Phillips to seek help. For some reason she was not able to speak. A neighbour, John Portelli, was watching television between 10.30 pm and midnight. At some point he heard the muffled scream of a female coming from the direction of Lyn Phillips' home. He took no notice, assuming it to be Danielle or one of her friends. 83 Lynette Phillips obviously did not pick up her daughter at midnight. When she did not arrive, Danielle attempted to telephone her mother several times. There was no answer. At 12.30 am, Danielle walked home from the Engadine RSL, arriving soon after 1.00 am. She noticed that her mother's car was not in the carport. She used her key to unlock the door. She immediately noticed that the lounge room was in disarray. She saw the knife on the coffee table. She noticed that there was blood on the knife. She then saw her mother lying on the floor in the bedroom. Her mother did not move. Her eyes and mouth were open. Danielle tried to check her pulse. She rushed outside the house and telephoned an ambulance. She then summoned members of the family. 84 The call to the ambulance was made at 1.09 am. The ambulance arrived at 1.13 am. The ambulance officers were concerned that the person responsible may still be inside the house. They determined that they would not enter the house until the police arrived. The police began to arrive at 1.17 am. The house was checked and the ambulance officers then entered and attempted to revive Ms Phillips. They noticed one and then the other ligature. They were extremely tight and knotted at the back, such that it was difficult to insert the blade of the scissors to remove them. Lynette Phillips was cold to touch. Her pupils were fixed and dilated. She was not breathing. There was no pulse, either radial or carotid. However, there was some faint electrical activity detected by their monitor. That soon vanished and resuscitation ceased at 1.45 am. Dr Botterill, who performed the autopsy on 12 January 2004, expressed the view that the cause of death was strangulation and the time of death shortly before 1.45 am. 85 Before examining Mr Christov's evidence, let me first describe the findings of the police when they examined the premises. The police investigation. 86 Detective Sgt Michael Power was the officer in charge of the investigation. He arrived at the house at about 2.20 am. He arranged for specialist police to attend the scene and gather evidence. He directed that Det Snr Const Taseski video the house, inside and out, upstairs and downstairs (Exhibit Z(2)). 87 There was no sign of forced entry through the front or back doors. No reference was specifically made to the laundry door and whether the props of wood, placed there by the deceased and referred to by Danielle, were still in position. The window in the spare bedroom in the south eastern corner was closed but not locked. A front door key was sometimes hidden outside the front door and was not in place. Ms Phillips' son, Adam, said to police in the video search (Exhibit AE) that it had "always been kept there, but no doubt it would not have been kept there over the last few weeks". 88 There were blood spots in the carport and near the front door. There were smears of blood on the front door on both sides. The loungeroom was in disarray. Cushions from the lounge were on the floor. There was blood on the arm of the lounge and spots on the floor. A swab was taken from one location which revealed the same DNA profile as Mr Christov. There was one cup on the coffee table with unfinished tea, and one teabag in the sink. A blood stained kitchen knife was, as mentioned, also on the coffee table. Swabs were taken from the handle and the blade. The swab from the handle revealed a DNA profile which was the same as Mr Christov. There were, however, traces of the DNA of a second person which were too weak to be interpreted. The swab from the blade revealed DNA which could have come from both Mr Christov and Ms Phillips. Indeed, on the assumption that there were two contributors, it was over ten billion times more likely that the mixture came from Mr Christov and Lynette Phillips, than from two unknown individuals. The laboratory did not test every blood stain. 89 Outside the lounge room, near the entrance, there were many blood spots. The body of Lynette Phillips was on the floor between the bedroom in the north western corner of the house and an adjacent bathroom. There were, as mentioned, two ligatures around her neck. One was a white shoelace which was later tested and found to have the DNA of more than one individual. The major contributor had a profile which was the same as Mr Christov. The minor contributor could have been Ms Phillips. The second ligature was a strip of red leather, being part of a dog lead. It, likewise, had the DNA of more than one individual and, again, the major contributor had a profile consistent with that of Mr Christov. The minor contributor had a profile consistent with that of Ms Phillips. The metal clasp for the dog lead was under the body of Lynette Phillips. I infer that Mr Christov cut the metal clasp from the lead. I also think it likely that Ms Phillips was in the position in which she was found (with the dog clasp under her) when the ligature was applied and that she did not move thereafter. 90 There was no blood found upstairs. A fingerprint examination revealed the palm print of Mr Christov on the door jamb on the ground floor bathroom/kitchen doorway. Mr Christov's right thumb print was found upstairs on the door knob of the linen press. There was a cigarette lighter in the upstairs bathroom. Mr Christov smoked but not Ms Phillips. The lighter was not submitted to the laboratory for DNA testing and there was no fingerprint evidence in respect of it. There was no question that Mr Christov had previously been to the house at Engadine, including upstairs. Whilst it is likely that the cigarette lighter was his, it is not possible to say when it was left at the house and, similarly, it is not possible to say when he created the fingerprint on the upstairs linen cupboard. 91 At 3.30 pm on Sunday 11 January 2004, Det Goodfellow picked up Natalie and Adam Phillips and took them to their mother's home. A search was then undertaken by a number of police officers in the company of both Natalie and Adam. Natalie and Adam Phillips were invited to inspect each room closely and identify anything out of place. The search was then undertaken. At 5.15 pm it concluded. A video recording was made as the group progressed from room to room (Exhibit AE). As items were found and given to the Exhibits Officer, they were placed in front of the video camera and described. At the same time a description was given of the location in which the item was found. 92 The search was described by one officer as "exhaustive". Certainly drawers were opened, documents were examined and items seized if they appeared to be of interest. However, many items were passed over and neither examined, nor moved. 93 The following day, Monday 12 January 2004, Det Power met Det Snr Sgt Mark Zdjelar at the premises. The point of entry was still clearly a puzzle. The upstairs bedroom window in the south eastern corner had been closed, but not locked. Swabs were taken, as well as fingerprints, from the glass and surrounds. The tests did not reveal any DNA profile, except that of an unknown female on the interior edge of the window. The DNA found in that location could not have originated either from Mr Christov or Lynette Phillips. 94 Detective Power gave evidence that, whilst this procedure was being carried out, Det Zdjelar drew his attention to items on the top shelf of the cupboard within the bedroom. Detective Zdjelar later gave evidence of what he saw. The door was slightly ajar and he observed a pair of shoes with a shoe lace missing, as well as a pair of glasses. Having drawn Det Power's attention to these items, they were photographed in situ. Each item was then removed and photographed. The following items were ultimately discovered: · First, a pair of blue ladies' Converse shoes with a white lace in one shoe and the other lace missing. · Secondly, a pair of glasses. · Thirdly, a men's handkerchief with three knots. Wrapped within the handkerchief, when the knots were untied, was loose change and a set of car keys for a Mazda vehicle. The keys were later tested and found to open the Mazda MX6 vehicle in Delia Street and to operate the ignition. · Fourthly, a pair of men's sandals size 11. · Fifthly, a knife. 95 There was some evidence concerning the glasses, which was inconclusive. Whilst it is possible the glasses belong to Mr Christov, no inference can be safely drawn that they did. The shoes and the knife were not tested by the laboratory for the purposes of identification of DNA, and were not the subject of other evidence. Again, no inference adverse to Mr Christov can be drawn. The shoe lace on the shoe inside the cupboard was sent to an expert chemist, Mr Daryl Waight, for examination and comparison with the shoe lace used as a ligature to strangle the deceased. It was found by Mr Waight to be indistinguishable. Both had areas of faint blue staining in approximately the same location on each lace. The handkerchief and the change with the Mazda keys clearly belonged to Mr Christov, which he acknowledged. The handkerchief, incidentally, was hidden from view inside the cupboard and discovered once the various items were removed. 96 I have yet to deal with Mr Christov's evidence. I will do so shortly. He asserted that Ms Phillips had invited him to her home and told him that the back door was open. He therefore entered by the back door. He said that he never went upstairs. Although he had no recollection of the shoe lace and tying it around Ms Phillips' neck, he inferred that it must have been on the lounge. He said he certainly did not remove it from the shoe. Similarly, the dog leash, which was usually kept in the laundry, must have been close at hand. He said the handkerchief and the keys were in his pocket and must have rolled out of his pocket onto the lounge room floor as he and Ms Phillips wrestled, as I will shortly describe. 97 But if the handkerchief fell onto the floor in the lounge room, then that is where you would expect it to be discovered by the police when they searched the premises on the afternoon of Sunday 11 January 2004. Yet it was not found until the next day, and when it was found it was, according to the police, in the cupboard in the upstairs spare bedroom as I have described. 98 Much time was taken in evidence and submissions in exploring possible explanations for the location of these items. Ms Nash of counsel, quite properly, acknowledged that it was not possible to put affirmatively to any witnesses that they had been guilty of impropriety and had planted these items in the cupboard in order to suggest Mr Christov's presence in that bedroom and premeditation for the act which was to follow. However, she suggested that there were odd features concerning the police evidence. There had been a thorough search on the Sunday. Rooms other than the spare bedroom had been closely examined, opening drawers and removing their contents. Yet the examination of the spare bedroom was relatively cursory and somehow these important items were overlooked. Detective Zdjelar had described the cupboard door as being slightly ajar. How, then, did he see these items? And how is it that they were so neatly placed in the cupboard? There were no satisfactory answers, according to Ms Nash, such that caution must be exercised before any inference adverse to Mr Christov could be drawn from this evidence. 99 There are, however, a number of difficulties concerning the suggestion of impropriety on the part of the police in respect of this evidence. First, Detectives Power and Zdjelar seemed straight forward witnesses who appeared to be telling the truth. Detective Zdjelar's log book was called for and closely examined. He was not then questioned concerning its contents. I infer that the sequence he described was supported by a contemporaneous note. 100 Secondly, in examining the inferences that may arise from this evidence, it should be noted that one shoe lace was downstairs and had been used to strangle Lynette Phillips. The blue Converse shoes were upstairs. By itself, their presence upstairs afforded no basis for an inference as to where Mr Christov found the other shoe lace. In other words, it is logically possible that the shoes were upstairs in the cupboard, one missing a shoelace, and the missing shoelace was downstairs, as Mr Christov asserted. It is the handkerchief and keys for the car that had been driven to that location that morning which suggested Mr Christov's presence in the spare bedroom. The handkerchief with the car keys created the possibility that Mr Christov had removed the shoelace from the shoe whilst in that bedroom. 101 Thirdly, if the handkerchief with the keys had fallen from Mr Christov's pocket in the lounge room, as he wrestled with Ms Phillips, then you would have expected the police to have found them in the lounge room. The lounge room was chaotic and some of the furniture was smeared with blood. It was obviously an important part of the crime scene. It was fundamental that it be examined closely. I infer that it was. The knotted handkerchief was relatively large and difficult to miss. I infer that it was not missed. The police were looking for clues. Their search was videoed. Anything they discovered, including three coins in the lounge room, was held up and given to the exhibits clerk. Was the handkerchief found and concealed? What possible motive could the police have for concealing the handkerchief, were it in the lounge room? I infer that it was not in the lounge room. 102 Fourthly, after submissions concluded, I again viewed and closely examined the crime scene video (Exhibit Z(2)). It was a video taken within hours of the murder and before the search. It includes the spare bedroom in the south eastern corner. It shows the cupboard door which was open fairly wide. As the camera passes across the items on the top shelf of that cupboard, the Converse shoes can be seen in position with a shoelace hanging down, precisely as they are depicted in the photographs later taken by Det Power (Exhibit D - photo 181). The glasses can also be seen. The fact is, that on the first search, these important clues were missed when the south eastern bedroom was briefly examined. There was no impropriety. There was a shoe without a shoelace in the top cupboard, as well as Mr Christov's handkerchief and car keys. The journey after leaving Engadine. 103 When Mr Christov left Ms Phillips' home at Engadine he took her mobile phone, her handbag, her car keys and her car. At some point he left Sydney, although it is uncertain where he went or what he did. At 4.34 am on Wednesday 12 January 2004, a little less than 30 hours later, he was seen driving Lynette Phillips' car on the Hume Highway travelling south towards Wagga. There followed a high speed police chase, by two police vehicles, over a number of kilometres. Spikes were placed upon the road, which deflated the tyres of his vehicle. This notwithstanding, Mr Christov kept driving on the rims of the vehicle for more than four kilometres. The vehicle ultimately left the road and crashed into a stand of trees. Mr Christov was not wearing a seat belt and was found at the rear of the vehicle, surrounded by debris. He was unconscious momentarily, but was able quickly to answer a number of questions put to him by a police sergeant who had been in one of the pursuit cars. He was taken by ambulance to the Wagga Wagga Base Hospital. He suffered a number of injuries. I will return to this aspect later. 104 In the course of the journey before the crash, Mr Christov made a number of telephone calls using Lynette Phillips' mobile telephone. He spoke of what had happened with Lynette Phillips. His first call was to a woman, Vladimira (Vicki) Kubicek, with whom he had had a relationship. Ms Kubicek had been his guarantor when he purchased the white Mazda vehicle in March 2002. He woke her from her sleep at 1.25 am on Sunday 11 January 2004. He said this: (Exhibit C - # 24) "(Christov): Hi, I'm just calling to say goodbye. (Kubicek): What's wrong? (Christov): I'm saying goodbye, I'm going away. The car is in Engadine." 105 Ms Kubicek thought that he sounded drunk and was acting strangely. She went back to sleep. Mr Christov rang again at 9.00 am the following morning. The conversation was in these terms: "(Christov): Call ESANDA and tell them the car is in Engadine. (Kubicek): Where is Engadine, what street, where is the key? (Christov): I don't know. (Kubicek): What is this all about, why is the car in Engadine? (Christov): I'm going to be dead in 48 hours. (Kubicek): What are you talking about? (Christov): Look at the newspaper. I'm going away." 106 On Sunday morning, 11 January, at 10.30 am or thereabouts, Mr Christov rang the Rockdale Trading Centre. The phone was answered by staff who recognised Mr Christov's voice and then hung up. At 5.40 pm the same day, Mr Christov telephoned the Sutherland Police. In evidence he said that he was concerned to know how Lynette Phillips was because he loved her. He spoke to Det Const Moss in these terms: (Exhibit C - # 19A) "(Christov): I'm just ringing to find out the condition of Lynette Phillips. I have just rung Engadine Police Station and they put me through to you." 107 Detective Moss asked for his name. At first he refused to provide it. Ultimately he told Det Moss that it was "Ivan, an ex-boyfriend of [Lynette Phillips]". The conversation continued as follows: (Exhibit C # 19A) "(Christov): Yes we had an argument in the living room. (Moss): Why would it concern you, if she was alive or dead if you guys had an argument? (Christov): I was over there yesterday afternoon, I wanted to talk to her she came at me with a knife, and attacked me. I was affected by drugs and alcohol. I think she was stabbed in the fight. (Moss): A knife? (Christov): I think she may have been stabbed with the knife, it is important that I speak with somebody." The phone signal then dropped out. 108 At 6.29 pm Mr Christov made a call to Mr Vicente. His call included these words: (Exhibit C - # 25) "(Vicente): What's going on, they found Lyn nearly dead with a stab wound? (Christov): What are you talking about I did not leave her with a stab wound. (Vicente): Please tell me what really happened as I am confused at the moment. Tell me how you met yesterday. (Christov): I called her to meet with her somewhere. (Vicente): Where? (Christov): On the corner about 400 metres away from her home. (Vicente): Around what time was that Ivan? (Christov): About 7.30. She made me wait for hours, about two hours. She actually showed up about 10.29. She smelt of alcohol. (Vicente): Is she drunk or not? (Christov): No just tipsy. ... " 109 The conversation continued: "(Christov): I asked her what was really going on. I told her to stop playing with me that she got another fucker and to stop playing with my head. I grabbed the remote control for the TV to turn the TV on and I turned around to talk to Lyn and I saw Lyn holding a knife. I asked Lyn what the knife was for and what was going on and Lyn told me she was going to kill me. Lyn said a few other things and started swaying the knife in front of me. I tried to defend myself and tried to get the knife off her. I got cuts everywhere." 110 Mr Vicente then asked where Mr Christov had been cut. Mr Christov responded as follows: "(Christov): Well I got one in the left thumb and index finger about one and a half centimetres. I got another one on the other index finger about 3 centimetres. We wrestled for about three to five minutes before I got the knife off her ... " 111 He then added: "(Vicente): How did it happen and how did you able to take the knife off her? (Christov): I grabbed her with my right hand and grabbed her under the throat and hit her twice." 112 He continued as follows: "(Christov): She was on the ground and I yelled at her and said you are nothing but a moll slut and fucking whore and I spat at her. I grabbed her car keys, her mobile and her handbag, including the shops keys. (Vicente): How many cuts did you accumulate Ivan? (Christov): Next to the neck and I got about six cuts. Do you know where the collarbone is? (Vicente): Yeah. (Christov): I have a T cut, a reverse T cut, on my collarbone. A cut about three centimetres on my index finger and one about four centimetres deep on my tricep. One on my left hand thumb and index finger of about one and a half centimetres." 113 Mr Vicente counselled Mr Christov to seek treatment from a hospital. Mr Christov said that he did not want to go to a hospital because "that is when they catch you". Mr Christov added: "(Christov): ... But do you know what Eddie I swear on my mother's grave that when I left her she was not nearly dying, because she was still breathing like this ... (Ivan made a noise like he was gasping for breath.)" 114 He said he left Lynette Phillips' home at 11.20 pm. 115 Shortly after, at 7.40 pm on Sunday 11 January 2004, Mr Christov telephoned Wayne Mills, Natalie Phillips' partner. Mr Mills made notes of the conversation. Mr Christov said this: (Exhibit C - # 26) "Lyn ... You must believe me. I was speaking to Eddie ... I didn't stab her." 116 He added: "If Lyn has been stabbed you should ask Danni who did it ... Lyn smelt of alcohol and was acting crazy, she had the knife ... She got me good on my hands, my neck, my collarbone, I have a bad thumb." 117 Mr Christov said he left the home at 11.20 pm Mr Christov's evidence. 118 Mr Christov began his evidence concerning the events of Saturday 10 January 2004 by describing the encounter at 7.49 am at the side of the road in Engadine, to which reference has been made. He said that he then drove to the front of the Rockdale Trading Centre, as did Ms Phillips, and they then each returned their Christmas gifts between 8.15 and 8.45 am. Their parting words, according to Mr Christov, were as follows: (T312) "She just told me: 'Fuck off, I don't want to see you again.' and I said to her: 'Don't worry, you will not, I'm going up to Queensland.' I sit in the car and drove off." 119 According to Mr Christov, Lyn Phillips later rang him whilst he was driving. The conversation was as follows: (T312) "(Phillips): Listen, I want, before you go to Queensland, I want to see you. (Christov): I'm not coming to the shop. (Phillips): No, can you meet me after the work? I finish early at work, can you see me after the work? I need to talk to you. (Christov): Lyn, if it's the thousand dollars what I lend you, to pay for the WorkCover, don't bother about it. Let's call it, it's all over. (Phillips): No, it's important. I need to talk to you." 120 Mr Christov said that he went to the Sutherland Hotel, when he received a second call from Lynette Phillips asking him to go to her home between 3.00 and 3.30 pm. She told him to park in the street behind her house so that her daughter would not see his car. 121 Mr Christov said that he spent the period between 12 midday and 2.30 pm with Ms Kubicek. He then went to the house at Engadine, parking in the street behind as Ms Phillips had asked. He was there by 3.30 pm. He had pawned his phone earlier that day, so that he rang Lynette Phillips from a payphone in a corner shop. The conversation, according to Mr Christov, was in these terms: (T314) "(Christov): Lyn, it's half past three, I'm in front, I been in front of your house, I'm in the corner shop, you're not there, how long you want me to wait? I don't going to wait here like an idiot until two or three o'clock, two or three hours. (Phillips): I already been home, I'm just going to the shop. I left the back door open, go in and wait for me. (Christov): What time you gonna be home? (Phillips): I would not be long." 122 Mr Christov then said he went to the Engadine Hotel where he played the poker machines, returning at 4.30 or 5.00 pm. He said he parked in a different street. The back door to Lynette Phillips' home was open. He went inside and made himself coffee. He switched on the television and waited for Ms Phillips to appear. She arrived at either ten to nine or 9.10 pm, he could not be sure. She apologised for being late. He sat on the lounge. He asked her what she wanted to say. She asked him again to marry her, and he again refused. He told her repeatedly that it was over. 123 After a time Ms Phillips left the lounge room in order to feed the animals. She came back, leaning against the door, her hands behind her back. She asked him whether he loved her. He repeated that it was over. She then said she had something for him. He closed his eyes, expecting the repayment of $1000 which she owed him. He stepped forward one pace. He cupped his hands in front of him. He then described what happened in these terms: (T318) " ... all what I felt stab wound in the left-hand side. When I open my eyes I dropped my hands. With my right hand I touch my left side and I saw blood. I saw her coming second time with the knife, in this sort of motion from top down (witness indicating)." 124 Mr Christov grabbed Ms Phillips and they fell onto the lounge. She stabbed him in the shoulder, in the area of the collarbone. She said that she was going to kill him. He slapped her face with an open hand once or twice, and ultimately applied pressure with his right thumb to a pressure point in her right hand, until she let go of the knife. The knife fell onto the floor. At some point he took her by the throat. 125 As this was happening, and after he had seen his own blood, Mr Christov said that he saw circles in front of his eyes. He began to feel sweaty. There was a lot of blood and "he had a black picture in front of him". He acknowledged that, in this state, he may have grabbed the ligature if it were close by. He had no recollection of having done so, or having tied it around Ms Phillips' neck. As he was leaving he said: (T323/387) "Thanks very much for inviting me for this." Lyn Phillips then mumbled: "I will kill you one day." Mr Christov responded: "You'll not see me again." 126 He then left the house. He was feeling dizzy. He accidentally picked up the car keys to Lynette Phillips' car and her mobile phone. He drove without appreciating that he was in her car before he got to Albury the next morning. He had no recollection of the car chase. As a result of her attack, he had been left with three wounds to his torso from which he now has scars. Two were to the left side, one below the armpit and the other on the side of the chest, and one was to the collarbone. The evaluation of Mr Christov's account. 127 Mr Christov's account was unsatisfactory and implausible. First, for the reasons already given, it is clear that he did not drive from the encounter that morning at the side of the road at Engadine (when Ms Phillips pressed 000) and meet Ms Phillips outside her shop to exchange Christmas gifts. That simply did not happen on Saturday 10 January 2004. 128 Secondly, Mr Christov's description of his movements that day is quite inconsistent with the evidence of the residents of Delia Street. The residents made their statements within a day of their observations. I accept them as accurate. 129 Thirdly, the evidence of Mr Christov that Lynette Phillips initiated contact by telephoning him is contrary to the account he gave Det Moss and Mr Vicente the day after he strangled Lynette Phillips. He told Det Moss: "I was over there yesterday afternoon. I wanted to talk to her." He told Mr Vicente: "I called her to meet with her somewhere." 130 Fourthly, the arrangement Mr Christov described to Mr Vicente on 11 January 2004, that Ms Phillips agreed to meet him on the corner 400 metres from her home at 7.30 pm, was quite different from the arrangement which he described in his evidence. 131 Fifthly, and fundamentally, it is simply not believable that Ms Phillips had any desire whatsoever to see Mr Christov on 10 January 2004. Whilst she may have been ambivalent earlier in their relationship, by 10 January 2004 I have no doubt she wanted nothing to do with him. On 4 January, although possibly after she had coffee with him, she was told of his criminal history. She made an application for an Apprehended Violence Order. She was plainly anxious that it be served. He had threatened her. She was scared of him. She was frightened to enter her own home, as she explained to Mrs Paton. She spoke at considerable length to her friend, Sonia Mapp, on 9 January, explaining her fears. She took the precaution of pressing 000 when he forced her to stop her vehicle at 7.49 am on the morning of 10 January 2004. She went straight to the police after she left him and made a complaint. She went back to work accompanied by two uniformed officers. During the course of the day she investigated the installation of a security alarm system. It is plain beyond any doubt that she did not initiate any contact with Mr Christov, nor invite him to her home. 132 Sixthly, the account given by Mr Christov is inherently implausible. Ms Phillips was at work on 10 January 2004. She made arrangements to see her daughter and Wayne Mills for dinner. The arrangements suggested by Mr Christov were quite incompatible with these commitments. Mr Christov denied being in the area, when he was plainly in the vicinity from about 12 noon. His account of entering the house by invitation in the late afternoon through an open door and waiting many hours until 9.00 pm is simply unbelievable. Whilst the means by which he entered the house are uncertain, he did not enter by invitation. I am satisfied beyond any doubt that, before Ms Phillips came home at approximately 10.00 pm, he had been upstairs in the spare bedroom. I am also satisfied that he had removed the shoelace from the shoe. He recognised that it was something that could be used to strangle Lynette Phillips, although I accept the possibility that he had not necessarily formed the intention of killing her at that point. I am satisfied beyond reasonable doubt that he placed the handkerchief with the keys on the shelf of the cupboard and then waited for Lynette Phillips. I make these findings beyond reasonable doubt because they are relevant to his intention. He said, incidentally, in his conversation with Mr Vicente on the day following the strangulation of Lynette Phillips, the following: (Exhibit C - # 25) "We then went back to her place. Lyn told me I could stay in the guestroom and I could come to her bedroom any time I wished even if its 3.00 o'clock in the morning. I said to her OK. Lyn went down stairs and a couple of minutes later I followed her down stairs and I saw her on her mobile phone trying to call someone." (emphasis added) 133 Mr Christov said that she smelt of alcohol and was tipsy. She was not. She had drunk nothing that evening, as confirmed by the blood test on autopsy. 134 Another aspect which was implausible was Mr Christov's suggestion that, as he was leaving, Ms Phillips mumbled the words: "I will kill you one day". That suggestion is to be contrasted with his account to Mr Vicente on the evening of 11 January that she made a noise "like gasping for breath". It is plain, from the detailed evidence of Dr Giuffrida, that two ligatures tightly tied would make it well nigh impossible for Ms Phillips to speak intelligibly the words attributed to her. 135 I have no doubt that Mr Christov's account that he was unexpectedly stabbed by Lynette Phillips whilst his eyes were shut is false. Mr Christov, incidentally, gave Mr Vicente a completely different account. I have referred to it already. It is worth repeating. Mr Christov told Mr Vicente the following: (Exhibit C - # 25) " ... I turned around to talk to Lyn and I saw Lyn holding a knife. I asked Lyn what the knife was for and what was going on and Lyn told me she was going to kill me. Lyn said a few other things and started swaying the knife in front of me. I tried to defend myself and tried to get the knife off her. I got cuts everywhere." 136 Moreover, I do not accept that Mr Christov was stabbed on the left side of the chest as he described. He had scars to the left side, but I am satisfied that they relate to some other occasion. The hospital notes of the Wagga Wagga Base Hospital record each injury to his body when he was admitted. There is no reference to wounds on the left side of the chest, or under his armpit on the left side, or the right shoulder. Dr Anderson, who's evidence I accept, examined Mr Christov. He also closely examined the hospital notes. He believed there were sutures in the major wound under the left armpit. He would have expected a note in the hospital notes had the wound been sutured at the hospital. There was no such note. Although Mr Christov discarded the T-shirt he had been wearing at the time he went to Lynette Phillips' home, if there had been a significant open wound, as the scar would suggest, you would expect blood on the new T-shirt corresponding to the wound. There was blood on the T-shirt (which was later examined), but it did not correspond to the wounds. More than that, when Mr Christov described his wounds to Mr Vicente, he specifically referred to the hand injuries and other injuries. He made no reference to chest injuries, although he did refer to his collarbone, and he did say at one point that he had sustained injuries "everywhere". Nonetheless, I would have expected, had he sustained a significant injury to his chest, that he would have mentioned that wound, rather than the relatively trivial injuries to his hand, which he did describe. 137 Mr Christov's account may therefore be put to one side. What happened is uncertain. However, some things are clear. Ms Phillips returned home. She was unaware of Mr Christov's presence in her house. She settled down with a cup of tea to watch television. I think it likely that she had the kitchen knife alongside her for security, precisely because she feared Mr Christov. I also think it likely that she took hold of the knife once he appeared. 138 I infer that Ms Phillips held the knife in front of her to defend herself. She was a small woman facing a determined and much larger man. I think it likely that Mr Christov attempted to take the knife from her and, in the process, was himself cut on his hands, as was she. Once he had taken the knife, and Ms Phillips was defenceless, he clearly assaulted her in the manner he described. He slapped her face and endeavoured to throttle her before applying the two ligatures. The autopsy revealed bruising to both arms and her face. The ligatures were knotted tightly at the back. I have no doubt that Mr Christov, in his anger, intended when he applied the ligatures to kill Lynette Phillips. 139 The puzzle in this tragedy concerns the telephone calls made by Lynette Phillips at 11.08 pm. There is no satisfactory basis for an inference, beyond the fact that the calls were made by Lynette Phillips and that she either could not, or dare not, speak. No doubt she pressed the automatic dial mechanism, at least in respect of the call to her daughter. It is possible that at least one ligature had already been tied so that she was incapable of speaking. Mr Christov told Mr Vicente at 6.29 pm on 11 January 2004, and repeated to Mr Mills at 7.40 pm, that he left Ms Phillips' home at 11.20 pm. If that were right, he left within ten minutes of these calls having been made, and in circumstances where Lynette Phillips' mobile had rung and the house phone as well, as Wayne Mills endeavoured to return Lyn Phillips' call. It is possible, although it is speculation, that Mr Christov realised that Lynette Phillips had managed to use the phone. He was bleeding. It is reasonable to suppose that he left in a hurry. In that hurry, he did not retrieve his handkerchief and car keys from upstairs. Instead, he took Lynette Phillips' car keys, her mobile phone and her handbag, and drove off in her car. The issues in respect of "substantial impairment". 140 It being clear that the Crown has proved the elements of murder, the issue arises whether, at the time Mr Christov strangled Lynette Phillips, he was substantially impaired by abnormality of mind arising from an underlying condition, and the impairment was so substantial as to warrant liability for murder being reduced to manslaughter (s23A(1) Crimes Act 1900). 141 Mr Christov was examined by two experienced forensic psychiatrists, Dr Giuffrida retained by his solicitors, and Dr Skinner, retained by the Crown. Both provided helpful reports and gave evidence. In broad terms, as previously outlined, Dr Giuffrida thought that the partial defence of substantial impairment may be open to Mr Christov, based upon the interaction of three separate matters. 142 The first was that Mr Christov may have been suffering from "morbid jealousy". His difficulties with other relationships in the course of his life was relevant to that issue. On any view, he had, according to Dr Giuffrida, a number of stormy relationships, often short lived and each culminating in an episode of violence. Dr Giuffrida believed that the statements from witnesses commenting upon the relationship between Mr Christov and Lynette Phillips, provided some evidence of morbid jealousy on the part of Mr Christov. 143 Dr Skinner had access to the same material. Certainly, Mr Christov was of a jealous disposition. Jealousy, however, is a normal human emotion, especially at the time of a break-up of a relationship. The person rejected naturally searches for an explanation for their companion's attitude. The presence of another person, or the possibility of another lover, is an obvious explanation. They may, in that context, make accusations. Morbid jealousy, on the other hand, is an extreme form of jealousy, as Dr Giuffrida acknowledged. Where it exists, it affects the entire relationship, not simply the break-up. It is characterised by constant obsessive checking upon one's companion, examining clothing, bed clothes, telephone accounts and the like for evidence of infidelity, with repeated accusations of infidelity and a refusal to accept explanations when they are provided. Dr Skinner did not accept that, on the evidence, Mr Christov exhibited morbid jealousy towards Ms Phillips. 144 The second aspect concerns drug abuse. It was common ground that Mr Christov, over much of his life, had abused drugs. He frequently used cocaine recreationally. He used other drugs besides. He became an interstate truck driver in 1994. He thereafter used massive amounts of amphetamines, sometimes as much as four grams a day, to enable him to stay awake. He experienced the psychotic effects which are associated with such drugs, including auditory and visual hallucinations. At the same time he used and abused a related drug, a stimulant, Duramine, as an aid to weight loss. It is likely that these drugs interacted, such that each exaggerated the effect of the other. Both doctors Giuffrida and Skinner diagnosed poly-substance abuse. Such abuse is capable of having enduring effects. The damage occasioned by such abuse becomes the context within which the person operates, lowering the threshold of that individual to withstand morbid jealousy (where it exists) or acute anxiety (where it is experienced). 145 The third aspect identified by Dr Giuffrida was the effect upon Mr Christov of Lynette Phillips having produced and used a knife against him. Arguably, Mr Christov suffered an acute stress disorder, which may well explain his inability to remember strangling Lynette Phillips and aspects of his journey from Sydney. He may well have been in a dissociative state. Dr Skinner disagreed. She did not believe there was any basis for such a diagnosis. His ability to perform fine motor actions, including tying the ligatures and thereafter driving from the scene, were inconsistent with someone who was in a dissociative state. 146 I will now examine each aspect in greater detail. Morbid jealousy. 147 Dealing first with morbid jealousy, Dr Giuffrida placed some emphasis upon the history of Mr Christov. In 1974 he formed a relationship with a woman, Ayia. He was about 24 years old. Ayia endeavoured to end the relationship. Mr Christov went to her home with a loaded .22 rifle. He threatened her and others in the building. He discharged the rifle into the ceiling. The police were called. He then tried to escape. He was chased by the police and ultimately hid in a tree. When the police found him, he shot himself in the lower jaw. It was accepted by Dr Giuffrida that he had attempted suicide. 148 Mr Christov sustained a number of injuries, including shrapnel in the facial bones. The bullet, however, did not penetrate the skull and there was no brain damage. He was taken to the Adelaide Hospital where he remained for a number of months. He had been drinking at the time of the incident. He was charged with attempted murder and ultimately acquitted by the jury. 149 Mr Christov thereafter had other relationships which endured for a number of years. He had a number of children. In September 1996, he was involved in another incident. He had formed a relationship over a period of three months with a woman who's name was Grace. Grace attempted to end the relationship because she was scared of him. She said that she found him to be jealous and possessive. He would check on her every day to see what she had been doing. Ultimately Mr Christov went to her home. He was armed with a flick knife. He punched the woman in the face and, in the course of argument, stabbed her in both the left and right hands causing lacerations, and to the muscle of the right thigh. He eventually barricaded himself and the victim, in her room. The siege lasted a number of hours. A police negotiator was able to persuade Mr Christov to allow the victim to leave, and to surrender his weapons. It was said that he had snorted four caps of cocaine before the incident. 150 Mr Christov was charged with a number of offences and served a term of imprisonment arising from this incident. I should make it clear that the Crown tendered this material for the insight it provided into Mr Christov's state of mind at the time of the offence against Lynette Phillips. It was not relied upon as tendency evidence. 151 Dr Giuffrida, reviewing the statements of various witnesses called by the Crown, and in the context of this history, believed that Mr Christov arguably had passed beyond the threshold of simply being jealous, and suffered from morbid jealousy. He acknowledged that morbid jealousy, as such, was not a diagnosis. To amount to an abnormality of mind it must be delusional. In cross examination, Dr Giuffrida said this: (T430) "Q. Now, I just want to take you to the bottom of that page 6 of your second report. You see the last paragraph it says, 'To the extent that an argument for delusional jealousy can be sustained, then that condition could avail Mr Christov of the defence of substantial impairment.' Now, when you say that in your report, I just want you to clarify this for me. Are you saying that it would be necessary, from your point of view, to support this particular defence for there to be delusional jealousy? A. Yes. Certainly when I wrote that I had in mind that really to satisfy the threshold test of substantial impairment - because it really is a threshold test - that one would probably need to demonstrate that what constituted an underlying abnormality of mind amounted to a delusional strength of jealousy. Q. And when you did your first report you did not pick up any signals or signs of morbid jealousy? A. No. Q. Or, indeed, of delusions? A. No." 152 Elsewhere, Dr Giuffrida gave the following evidence: (T421) "Q. And you couldn't find any suggestion of any mental illness or any particular condition, is that right? A. Well, in particular what I was looking for, whether there was any cognitive impairment, and I found nothing to support that. Apart from, of course, his statement that he could not recollect, for example, tying the ligatures about the neck. But apart from that there was no current apparent cognitive impairment. I was also looking to see whether there was some evidence of a psychotic process. There didn't seem to be, in particular, any particular delusional belief about the victim herself. I'm just trying to see where I've said that. Anyway, that is the case. I couldn't elicit anything to indicate that he had a particular delusional belief about Ms Phillips. Q. So he didn't mention to you anything about her having affairs with other men, or ... A. No. Q. And he didn't say anything to you like 'Oh, I had to check on her all the time because, you know, she was doing things with other men, I just had to keep tabs on her'? A. No." 153 Dr Giuiffrida added: (T421/2) "Q. But in terms of going into the background of this relationship, you spent a fair bit of time asking him about that? A. Yes. Q. And about the incident, and what happened, and how he saw the incident having unfolded? A. Yes, certainly. Q. And there's nothing at all in what he told you that gave any clues to morbid jealousy? A. No. Q. Which you normally would have expected in a detailed interview? A. Yeah, look that's true, I would have - I'll put it in a different way. I certainly would have been more comfortable in making a diagnosis of, certainly a delusional level of morbid jealousy, if that sort of information had come out in the interview, yes. And it didn't." 154 Dr Giuffrida also gave the following evidence: (T430) "Q. ... You see, there is no material, I would suggest to you, indicative of this obsessive type of behaviour - checking things, checking bed clothes, checking bathrooms for someone else's hairs or something like that - there is just nothing? A. That's true. It shows none of the typical bizarreness or the extreme, the degree to which someone with a classical delusional jealousy will go. I mean, I'm obviously well versed in what these things are, but they might include hiding under the house or the ceiling or boring holes in the ceiling or installing cameras in the house and paying private detectives to follow the person, waiting outside the person's work, ringing them constantly at work to see if they're really there, and so on and so forth, yes. So, none of those really classical features of morbid jealousy are characteristic in this case." 155 Dr Skinner acknowledged that Mr Christov had a jealous disposition. However, she did not believe that he exhibited morbid jealousy. The jealous behaviour emerged at the time the relationship broke up. There was no real evidence that it was a feature of the relationship throughout, or apart from the break-up. Her explanation for his history and his behaviour was as follows, referring to the 1974 shooting: (T261) "A. Well, I believe I can infer from that that this is a man who has a lot of difficulty with rejection in a relationship and who lacks the social skills and appropriate behaviours that one might use to try to restore that relationship. Instead of approaching it in a sort of socially acceptable way that may have restored the relationship, he has become angry and behaved in an aggressive manner which resulted of course in violence and in fact of course didn't achieve his aim at all. It's a person who's frustrated, angry and upset and not able to act in an appropriate fashion when he is rejected in a relationship." 156 Whilst the brief description of Mr Christov's relationship with Grace, giving rise to the incident in September 1996, suggested morbid jealousy, it does not appear to have been a feature of his relationship with Ms Phillips. The material I have before me is limited, but the jealousy which was evident appeared to emerge in the context of the attempts by Ms Phillips to end the relationship. I do not accept that Mr Christov's jealousy involved delusions such that one should infer as a probability that he suffered an abnormality of mind. Drug taking. 157 The second aspect concerns the drug taking of Mr Christov. It was common ground, as I have mentioned, that Mr Christov abused drugs. Such abuse can have long term effects, even when the drug taking ceases. Although there was evidence that he had, at times, suffered from delusions and experienced hallucinations as a result of his drug taking, the issue is whether, at the time of the incident, there is evidence of such effects. Dr Skinner said this: (T250) "Q. In relation to Mr Christov, did you ask him about any delusions or perceptual disturbances, whether he was having any of those at the time of the incident involving Lynette Philips on 10 January 2004? A. He denied that he was having any hallucinations about that time. I asked him specifically whether he had any ideas that Miss Phillips was doing anything - like in trying to elicit the idea whether he might have had delusions, I asked whether he thought Miss Phillips was doing anything unusual, and he said 'No'. He did refer later on to another person having a bugging device. At that time I asked perhaps had he thought Miss Phillips might have had a bugging device with her and he said, no, he didn't think so. I did ask him whether he thought Miss Phillips was having affairs with other men during the period he was in the relationship with her or afterwards, and he said 'No'. So he denied having any delusions that were related to Miss Phillips at all." 158 Mr Christov was examined by two experienced forensic psychiatrists following his discharge from hospital after the motor vehicle accident, and his incarceration in respect of this offence. Neither found any psychiatric symptoms. 159 The history given to Dr Giuffrida was not remarkably different from that of Dr Skinner. Nonetheless, Dr Giuffrida saw evidence of the ill effects of long term drug abuse in Mr Christov's behaviour. He showed irritation, anger and was excessively explosive, for instance, in his reaction to other drivers. However, in cross examination, Dr Giuffrida said this: (T432/3) "A. ... I have to concede that I could not at any time find any clear evidence of psychotic phenomena, and certainly not in relation to the victim, other than his history of the auditory and visual hallucinations. Q. Which happened when he was acutely intoxicated? A. Yes. Q. Certainly when you saw him. I mean, I think you have agreed, you certainly didn't see any evidence of psychosis? A. No. And, you know, I was at some pains to try and elicit whether he had some particular unusual or over valued idea or delusional belief about Miss Phillips. Q. And you couldn't find any? A. I couldn't find any. Q. So really, there was no evidence, when you saw him that his long term drug use had actually turned into a condition that could be described as a psychosis, or state of delusion? A. No. He certainly wasn't typical of the sort of people that I regularly see who do use these heavy amounts of amphetamine and cocaine over a period of time who develop a condition that is indistinguishable from a paranoid psychosis and even paranoid schizophrenia ... " 160 Later, Dr Giuffrida gave the following evidence: (T434/5) "A. ... but my understanding in general terms is really to find really strong evidence of an abnormality of mind of a kind that would satisfy the test for substantial impairment. A court, a jury would need to - you need to demonstrate to them that there was either a psychotic illness, or a profound mood disturbance like mania, or a melancholic level of depression, even though there were not necessarily psychotic symptoms. In other words, something that approached the legal definition of a mental illness in our Mental Health Act. Q. And you have not really found that here, have you? A. Not comfortably." 161 I do not doubt that drugs have taken their toll upon Mr Christov, making him more irritable, angry and explosive. However, I am not, persuaded that, either alone or in conjunction with morbid jealousy, the adverse effects reached the level of delusion or an abnormality of mind. 162 There is a further aspect concerning drugs. Mr Christov told Dr Skinner that, on the morning of the offence, he took amphetamines. He said that he consumed between half and one gram at about 11.00 am. No amphetamines were found in the blood sample taken from him at 2.15 pm on 13 January 2004 after the motor vehicle accident. Nonetheless, because amphetamines have a short half life, and are rapidly cleared from the body, their absence in a blood sample taken three days later would not, in Dr Skinner's view, exclude the possibility that Mr Christov had taken amphetamines on the day, as he said. Amphetamines may lead to increased irritability and aggression. In Dr Skinner's view, taking amphetamines may help explain Mr Christov's reaction towards Ms Phillips. However, the effect of the drug would be transient and disregarded under s23A(3) of the Crimes Act. It would not be an abnormality of mind. 163 Mr Christov, when giving evidence, denied having taken amphetamines on 10 January 2004. He believed that he must have been confused when he said he had to Dr Skinner. He had not mentioned it to Dr Giuffrida. He did, however, take amphetamines after the incident at about 1.00 am on Sunday 11 January 2004 at Pheasant's Nest, but not beforehand. 164 The Crown pointed to the admission made by Mr Christov to Det Moss in their telephone conversation at 5.40 pm the next day, 11 January. He told Det Moss that when Lynette Phillips attacked him with a knife he was affected by drugs and alcohol and that she may have been stabbed. 165 On balance, I think it likely that Mr Christov's statement to Dr Skinner was a mistake on his part and that he took amphetamines at 1.00 am, Sunday 11 January 2004, as he said. Ms Kubicek, it will be remembered, thought that Mr Christov sounded drunk when he rang at 1.25 am. However, even if it be assumed that the history he gave Dr Skinner was accurate, the amount taken, namely half to one gram, would not have had a significant impact upon him, in Dr Giuffrida's view, especially 12 hours later when the incident with Ms Phillips took place. I accept that evidence. Acute stress disorder. 166 The final aspect of Dr Giuffrida's opinion was the possibility that Mr Christov suffered an acute stress disorder induced by the events of that evening. Dr Giuffrida received a history from Mr Christov, which was substantially the same as the evidence given to this Court, that he had his eyes closed when, unexpectedly, he was stabbed in the chest. He told Dr Giuffrida this: (Exhibit 6(1) - p7) "He then felt hot and cold flushes and was sweaty and thought to himself 'you cannot die'. He implied that he believed that Ms Phillips was stabbing him with the intent of killing him." 167 Mr Christov could not remember any detail after he forced Ms Phillips to drop the knife. Specifically, he could not remember putting the ligatures around her neck. The next thing he remembered was picking up the car keys, the cigarette lighter and his cigarettes, getting into the car and driving away. He remembered washing himself soon after at a flat at Sutherland. Dr Giuffrida said this: (Exhibit 6(1) - p9) "The very highly selective period and short time span of the amnesia is difficult to explain other than on the basis of a psychological reaction to the acute trauma or indeed horror of the situation of him being attacked by the deceased with a knife." 168 Upon the basis of that history, Dr Giuffrida made the following comment: (p9/10) "Certainly it is well known that persons subject to severe trauma and in a knife attack in which he alleges that he had to struggle for his life would be one that is viewed as a traumatic event. The DSM-IV of course described post traumatic stress disorder as where a person is exposed to a traumatic event in which the person experienced or was confronted with an event that involved actual or threatened death or serious injury and that the person's response involved intense fear, helplessness or horror." 169 Dr Giuffrida, upon the basis of that history, offered the following conclusion: (p11) "It was then in that context that he alleges that he was attacked with a knife by Ms Phillips and believed that he was in danger of being killed by her with a knife and that he was terrorised or horrified or traumatised by such an attack such that it produced I believe an impairment of his capacity to understand the event that was occurring and to judge whether his actions in putting his hands around Ms Phillips' throat or tying ligatures about her throat were right or wrong and that there was some substantial impairment of his capacity to control himself at that time." 170 Dr Skinner took a different view. The history she obtained from Mr Christov was similar. Dr Skinner added the following detail: (Exhibit AJ(1) - p5) "Mr Christov said he has a clear memory of Ms Phillips attacking him with the knife. He said that in his mind he kept thinking, 'I have to survive'. He did not panic, but acted calmly which he attributes to his Army training. He said he also recalled that when he coughed, blood was spraying from the chest wounds. ... " (emphasis added) 171 Dr Skinner's conclusion was as follows: (p14) "I note that Mr Christov's account of injuries inflicted by Ms Phillips is not consistent with the examinations of doctors at Wagga Hospital as set out in their statements. The wound to the base of his thumb was reported as minor. Mr Christov has army training and is a large and physically fit man. It seems unlikely that he would have been so traumatised by Ms Phillips' actions in attacking him that he would have lost his capacity to understand what was happening. Assuming that he was so traumatised, it seems unlikely that he would have had such good fine motor co-ordination as to tie the ligatures and the presence of mind to leave in her car and drive without incident as far as he did. ... " 172 The history provided by Mr Christov to Doctors Giuffrida and Skinner has been considered earlier in this judgment and rejected. Mr Christov was not the invited guest of Ms Phillips. Ms Phillips did not unexpectedly attack him whilst his eyes were closed. Mr Christov was lying in wait for her, within her home. He had in mind attacking her and was in possession of the shoelace. She attempted to defend herself, having armed herself with a knife. In the course of that attempt, Mr Christov cut his hand, as did Ms Phillips. He was not stabbed in the chest on the left side, and probably not stabbed in the collarbone. These alternative facts were put by the Crown to Dr Giuffrida. The transcript included the following: (T418/9) "Q. ... when you came to your opinion in relation to that first report, this is before you had all of the additional material, were you basing your opinion on the assumption or on the basis of accepting the history that he gave you? A. Yes, certainly the, the diagnosis of an acute stress disorder with the dissociative symptoms, the explanation of the amnesia and so on was certainly based on accepting his version of events. Namely, you know, that he was attacked by Lyn Phillips and was stabbed. Q. If in fact what had happened was that he went to the house, without permission, and more or less lay in waiting for Lynette Phillips to come home, and in the meantime went to the trouble to locate and remove from a shoe the very shoelace with which he strangled her when she came back to the house, in other words, I'll use the word 'armed' with a shoelace perhaps, before she even comes into the house, that introduces to the history, if you accept that scenario, a very different set of circumstances doesn't it? A. Yes. Q. And someone lying in wait for someone might well anticipate, particularly if they knew that the person did not want them in the house, and had been avoiding them, they might well anticipate that the person would be frightened and might do something like produce a knife to ward this person away? A. Yes. Q. So the person laying in wait in that type of scenario would not be surprised to find something like that subsequently happening, the person producing the knife? A. I'm not sure I can answer that. Q. Perhaps if I ask you this, they would be certainly less surprised if it had come totally out of the blue, without any advanced planning or getting into the house without permission? A. I agree with that. Q. It's a very different dynamic, if someone is laying in wait as distinct from suddenly, totally unexpected being confronted with an angry person with a knife? A. Yes. Q. And that might, if you accept the lying in wait scenario, that might well undermine this idea of an acute stress reaction, or weaken it substantially, wouldn't you agree with that? A. Quite - yes, very significantly, yes." 173 Although I recognise the possibility that Ms Phillips' access to a knife may have been unexpected by Mr Christov, I accept that he remained calm, as he told Dr Skinner. I do not accept as a probability that he suffered an acute stress reaction as a result of the attempt by Lynette Phillips to defend herself with the knife. I also think it probable that he does remember having strangled her. I do not accept that he suffered from some form of dissociative state as he drove from her house. I believe he knew exactly what he had done, and that it was wrong. Knowing that, he then fled. 174 I am not saying that Mr Christov's psychological makeup was entirely normal at the time of these events. He may have been impaired to some degree. However, I am not satisfied as a probability that, at the time he strangled Lynette Phillips, he was substantially impaired by an abnormality of mind, or that such impairment as he had was so substantial as to warrant liability for murder being reduced to manslaughter. Verdict. 175 Ivan Christov, I therefore find you guilty of the murder of Lynette Phillips at Engadine on 10 January 2004 and I convict you of that offence. ********** 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.