New South Wales Supreme Court CITATION : R v Jacobs [2009] NSWSC 235 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S) : 23 February - 5 March 2009 JUDGMENT DATE : 12 March 2009 JURISDICTION : Criminal JUDGMENT OF : McClellan CJatCL at 1 DECISION : Accused not guilty. Verdict of acquittal entered. CATCHWORDS : CRIMINAL LAW - particular offences - offences against the person - murder - intention to kill - criminal liability and capacity - self defence - CRIMINAL LAW - procedure - trial had before judge without jury - election LEGISLATION CITED : Criminal Procedure Act 1986 CATEGORY : Principal judgment PARTIES : Gregory William Jacobs (Accused) The Crown FILE NUMBER(S) : SC 2008/13631 COUNSEL : W A Dawe QC/P Bodisco (Accused) A Robertson (Crown) SOLICITORS : Director of Public Prosecutions (Crown) Greg Walsh & Co (Accused) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST McCLELLAN CJ at CL THURSDAY 12 MARCH 2009 13631/08 JACOBS, Gregory William JUDGMENT 1 HIS HONOUR: Gregory William Jacobs was arraigned on an indictment charging him with the murder of Xandre (Sandy) Jacobs on 10 March 2008 at Ingleside in the State of New South Wales. He entered a plea of not guilty. The trial was fixed to commence on 23 February 2009. 2 The accused signed a form of election under s 132(1) of the Criminal Procedure Act 1986 electing to be tried by a judge alone. He signed that form on 18 February 2009. He stated that before making his election he had sought and received advice in relation to the matter from Mr Greg Walsh. Mr Walsh is a solicitor and acts for the accused in connection with these proceedings. 3 On 18 February 2009 the Director of Public Prosecutions consented to the trial of the accused proceeding before a judge alone. I am satisfied that before making the election the accused obtained advice in relation to the election from an Australian legal practitioner. The trial has proceeded before me as a judge sitting alone. 4 Section 133(1) of the Criminal Procedure Act 1986 provides that a judge trying a criminal proceeding without a jury may make any finding that could have been made by a jury on the question of guilt. A judgment by a judge in such cases must include the principles of law applied by the judge and the findings of fact upon which the judge relies (s 133(2)). If any act or law requires a warning to be given to a jury in any such case the judge is to take the warning into account in dealing with the matter (s 133(3)). 5 The burden of proof lies on the Crown. It is incumbent on the Crown to establish each element of the offence beyond reasonable doubt. The accused raised four issues: self-defence, diminished responsibility, provocation and automatism. 6 In relation to the offence of murder the Crown must prove beyond reasonable doubt that the act of the accused, which caused the death of the deceased, was voluntary in the sense that it resulted from an exercise of will on the part of the accused. A voluntary act is to be distinguished from an act which was done accidentally. The Crown must also prove beyond reasonable doubt that the act of the accused that caused the deceased's death was done with the intention of killing her or with the intention of inflicting grievous bodily harm upon her. Grievous bodily harm means really serious bodily injury. 7 If I am satisfied that the Crown has proved the elements constituting the offence of murder I am required in the present case to consider issues of self-defence, diminished responsibility and provocation. 8 If the Crown has not proved the relevant intention for murder the accused may nevertheless be guilty of manslaughter if the act of the accused which caused the death of the deceased was voluntary and both an unlawful and dangerous act. The application of force by one person to another without the other's consent is an assault and is unlawful. An act is dangerous if a reasonable person in the position of the accused would have realised (whether or not the accused in fact realised) that it involved a significant risk of causing serious injury. If the Crown has proved beyond reasonable doubt the elements of manslaughter, it will be necessary to again consider self-defence. If the Crown has not excluded self-defence, the accused is not guilty of manslaughter and must be acquitted. 9 With respect to self-defence, although described as a "defence", it provides matters which the Crown must prove beyond reasonable doubt. The Crown must prove beyond reasonable doubt that the death of the deceased was not done in lawful self-defence. This may also be expressed in terms that the Crown must exclude any reasonable possibility that the accused acted in lawful self-defence. The questions which I must consider in relation to self-defence are: (a) is there a reasonable possibility that the accused believed that his conduct was necessary in order to defend himself; and (b) if there was, is there also a reasonable possibility that what the accused did was a reasonable response to the circumstances as he perceived them. 10 The first question is determined from a completely subjective point of view considering all the personal characteristics of the accused at the time he carried out the conduct. The second question is determined by an objective assessment of the reasonableness of the accused's response to the situation which the accused subjectively believed he faced. 11 I remind myself that there is no onus upon the accused to prove that he acted in lawful self-defence. The onus rests on the Crown to exclude any reasonable possibility that the accused acted in lawful self-defence. The Crown may exclude any reasonable possibility that the accused acted in self-defence by proving beyond reasonable doubt either: (a) that the accused did not in fact believe that it was necessary for him to act as he did in order to defend himself; or (b) even if the accused had that belief that what the accused did was not a reasonable response to the danger as he perceived it to be. 12 If the Crown has excluded self-defence (and if the relevant intention has been proved) the accused may be guilty of murder. In that event it is necessary to consider the issue of provocation and diminished responsibility. If the Crown has not excluded that the accused was acting in self-defence, but has proved that what he did was not a reasonable response to the danger as he perceived it, the accused is not guilty of murder but may be guilty of manslaughter. 13 The accused did not give evidence. I remind myself that he bears no onus and is presumed innocent. His election not to give evidence constitutes no admission and I draw no adverse inference from it. I may not use his silence in court to fill in gaps in the Crown case or use it as a make weight. Relevant matters 14 Mr Dawe QC, who appeared for the accused, accepts that I would be satisfied that it was the act of the accused which caused his wife's death. The accused is an incomplete quadriplegic. He is now 52 years of age. He suffered an accident while water skiing in 1982, which caused a fracture of his neck and damage to his spinal cord. He was significantly disabled by the accident and suffered a loss of movement and feeling below the C7 level. One of his hands and forearm were affected as well as his trunk and lower limbs. He also had pain at the level of the fracture. He was subsequently involved in a motor vehicle accident in 1987 which increased his difficulties. By the time of 10 March 2008, as a result of an intensive and ongoing exercise regime, the accused has continued to be able to walk unaided. However, he cannot run and walks with difficulty. His balance is impaired. His injuries are such that at some stage of his life he will inevitably be confined to a wheelchair. His spine has, in part, been fused. 15 There was evidence tendered of the accused's behaviour on stressful occasions. I am satisfied that, although capable of anger, he generally controlled his emotions. There was an occasion when a friend reported the accused holding her arm so strongly that she was hurt by him. That evidence was given by Ms Earl and I remind myself, as I said when her evidence was given, that it was not admitted as evidence of tendency of the accused. 16 The accused married the deceased in 1995. About six months later, in 1996, the deceased was admitted to hospital suffering from depression. At the time the accused reported to one of her brothers that the deceased had a knife and was threatening to kill herself. She was prescribed anti-depressant medication. 17 The hospital notes made by the registrar at the time indicate that the deceased was admitted following "a threat of suicide made in argument with boyfriend last night." This is a reference to the accused. The notes also record that she had an argument with her boyfriend on that evening "who asked her to leave." The hospital recorded that she "gets fits of anger – bursts in tears – usually exacerbated by 'people that treat you badly.' " 18 The notes from the ambulance which took her to hospital record "Chief complaint: threatening suicide. … 29 year old female with history of threatened suicide over last several weeks. Presents … threatening suicide following break down of 6/12 marriage tonight. Husband concerned for wife's welfare believes wife will fulfil threat. … It is my opinion there may be some validity of threat following extensive conversation." 19 There are two aspects of these events of relevance to these proceedings. Firstly, the events indicate a propensity in the deceased at least at that time to respond emotionally when under stress. Secondly, I am satisfied that on this occasion she had a knife which she was threatening to use to kill herself. The evidence does not indicate that she made any threat to the accused. However, the circumstances were obviously of concern to him including because of her threat to use a knife at least to kill herself. 20 The accused and the deceased lived together until some time in 2006. They have one child, a daughter, by the name of Shannon. She was aged 8 at the time of her mother's death. The relationship between the accused and the deceased was affected by serious disagreements. For some years before they separated the accused and the deceased lived at 79 Lane Cove Road, Ingleside. A number of the neighbours who had spent time with and observed both parties gave evidence. Evidence was also given by other friends of the accused and the deceased. 21 Ms Llewena Whiddon, who lived next door, gave evidence of frequently hearing arguments during which the deceased's voice was raised. She was questioned about these matters: "Q: Yes and tell his Honour please what you saw or heard or both? A: I heard them fighting. The spa was, I could actually at that stage see through to where they were standing and it wasn't a normal fight. Sandy was, she was in a rage. She was yelling and screaming, quite hysterically and pushing Greg so that she had lost it as far as I was concerned. Otherwise normally when they have a fight which they have often I listen but I don't look because they are just having an argument which you can hear but this was quite, you know, made me look because it wasn't nice. Q: And in terms of the pushing, can you say exactly how she was pushing or where she was pushing or what she was doing? A: She was pounding into his upper chest with her hands. Q: You're indicating your both hands. A: Both hands. Q: And pounding, what do you mean by pounding? A: This, der, der. She wasn't smashing, crunching, she was like that (indicated). Q: So arms in a downward with her fists going down in a downwards motion? A: That's right, like that, yelling at each other whatever they were saying. Q: You are indicating there with? A: Both fists. Q: And it was her fists that were pounding on her chest? A: Yes. Q: And yes continue please. A: And they were arguing over, I don't know what they were arguing, I wasn't really listening. I just heard the rage and her totally out of control. So I looked. I think I called my husband and said you know 'it's out of control next door, what will I do? Shall I call the police?' " 22 She was asked what the accused was doing. She answered that she thought that he had told the deceased to "go away." She said that "every time I heard them argue he was actually, he was quite calm, he would actually tell her 'go away, go' and he hardly ever lost control. 23 Ms Whiddon observed another incident when the accused was cutting trees in his rear yard. Her account of this event was as follows: "I was at the fish pond and Greg was cutting the trees down and Sandy, I could see through to where they were standing. Sandy came up in a rage and started pushing Greg backwards 'what are you doing cutting down the trees?', and Greg I think, because there were two other people there, he looked embarrassed and he was laughing a little bit and I couldn't hear what was being said between them because I was in my property. I could only hear her yelling. She ended up storming out of there saying 'I hate your guts.' 'Rot in hell' and quite a few horrible things and then I heard her car. We have a hill out the front of our house, an incline like that and her car screeched in every gear up the hill and every time she went back a gear you could hear the wheels screech on the road. She was totally out of control and I said to Greg, I said the next day, I said that you know 'she'd lost it' and 'you should do something about it' because it wasn't, it wasn't correct behaviour." 24 Ms Whiddon was asked about another occasion when she heard things being broken in the kitchen of the house of the accused and the deceased. She said: "I don't remember when it was when Sandy, I think it was when she was living there, it was another argument they were having. There was obviously cups or dishes being thrown in the kitchen, smashing on the walls. I could hear the argument and things being smashed or thrown, I don't know, but things were being broken. I didn't look into, I just heard it." 25 She said that on this occasion the deceased was the only one yelling. I accept Ms Whiddon's evidence. 26 Other accounts of the incident involving the trees were also given in evidence by Daryl Honeywood and James Honeywood. I accept their evidence. Daryl Honeywood is a distant relative by marriage of the deceased. He, together with James assisted the accused in cutting down the trees. The job had been started when the deceased came home and apparently shouted at the accused saying "you knew that I didn't want those trees cut down." 27 Mr Honeywood said that the accused and the deceased argued and "it got louder and louder, probably for two or three minutes, and by this time they were pushing each other sort of with their chests, it was quite violent." He said that it became so violent that his son James had to stand out of the way. He said that amongst the trees which they cut down were two trees which the accused said he wanted cut down quickly before the deceased came home. 28 James Honeywood is Daryl's son. He also observed the argument between the accused and the deceased and said that the pushing was "medium hard between Greg and Sandy." He said that the deceased was "very upset and agitated." He said that the accused was "probably a bit shocked and he was still, um, upset at her." He said that "with the pushing and shoving the accused lost his balance and fell over." He said that it was the deceased who approached the accused rather than the other way around and that he lost his footing after being pushed. 29 The marriage completely failed in about April 2006. About five years previously the deceased had made internal alterations to the house so that she could live in one section from which the accused was excluded. This arrangement came to an end when the deceased left taking their daughter, Shannon, with her. 30 The accused and the deceased did not immediately seek formal orders in relation to custody of their daughter and settlement of property. The informal arrangement between them provided for Shannon to live with her mother but stay with her father for two nights of each week. They were in negotiation in relation to the property settlement. Before Friday, 7 March 2008 the accused had, through his solicitor, made a formal offer of settlement. 31 The deceased was not happy with the offer and did not believe that it would be sufficient to allow her to acquire a comfortable apartment where she could live with her daughter. She was troubled about these matters and sought advice from a friend, Megan Earl. 32 Ms Earl gave evidence in which she said that she had known the deceased for about three years prior to March 2008. She had known the accused for a significantly longer period. She was aware of the accused's accident and the disability which he suffered. She said that she had a conversation with the deceased on 3 March 2008 when they discussed family law solicitors. She gave the deceased the name of her own solicitor Mr Brendan Manning. She was later told by the deceased that she had an appointment with Mr Manning on 7 March 2008. The deceased kept that appointment and subsequently sent messages to Ms Earl which included the following: "Hi Meg, Brendan basically said Greg is in for it." 33 When Ms Earl spoke with the deceased by telephone the deceased said to her "Brendan said he's got his Armageddon coming." 34 The deceased told Ms Earl that she had spoken with the accused about her conversation with the solicitor. The deceased told Ms Earl that the accused had "gotten quite angry about it." She said in evidence "I don't remember her exact words but she got the impression – she gave me the impression that he was really quite mad." 35 Mr Manning gave evidence. He said that he advised the deceased that she was entitled to approximately $550,000 by way of property settlement but that an offer of settlement should be made at $440,000. He said that the deceased gave him instructions to lodge a caveat on the matrimonial home. He denied advising the deceased that the accused would receive his Armageddon. 36 I am satisfied that the advice which the deceased received, when communicated to the accused, would have been of concern to him. I am also satisfied that it fortified the deceased in her determination to pursue a more attractive settlement than she had been previously offered, even if it meant litigation. The deceased was buoyed by her meeting with Mr Manning. The events of the weekend of 7, 8 and 9 March 2008 37 Shannon stayed with her father on the night of Friday, 7 March. Her mother collected her on the Saturday, the understanding between the parties being that she would stay with her father again on the Saturday night. The deceased moved house during the Saturday and rather than spending it with her father Shannon spent Saturday night with her mother. The deceased gave as the reason for Shannon staying with her, rather than returning to her father, that Shannon was playing with a young puppy and did not wish to leave it to go to her father's house. 38 The accused was upset when his daughter did not return on the Saturday night and as a consequence decided that he would keep her with him on the Sunday night. This was to prove a source of serious difficulty between the parents. They arranged for Shannon to spend Sunday with her father. She did this, having a day out with her father and his parents. The events of Sunday 9 March 2008 39 Ms Karen Brebner said that she saw the deceased for lunch on Sunday 9 March 2008. The deceased told her of her visit to the solicitor. She told Ms Brebner that she was happy about the outcome of that meeting and said that she had telephoned the accused and "blurted it all out." She told Ms Brebner that she felt like "finally I don't have to worry." The deceased also told Ms Brebner that she had not taken her daughter Shannon to the accused's house the previous evening. The deceased told Ms Brebner that Shannon had declined to go to her father's house the previous evening because she had found a small puppy in the garden that she wanted to play with. The deceased told Ms Brebner "I will pay for Shannon not going to Greg's." 40 Ms Myfanwy Javis worked with the deceased at a local nursing home. She gave evidence that she was at work at the same time as the deceased on the afternoon of 9 March 2008. The deceased was preparing for a function. Ms Javis said that she observed the deceased to be happy. At about 7.40 pm she saw her speaking on her mobile phone. She said that when the deceased got off the phone she "mentioned that she would have to call the police for her husband." Ms Javis did not see the deceased again. When cross-examined Ms Javis indicated that she did not perceive the deceased to be concerned or upset at that time. 41 The telephone records indicate that the deceased telephoned the accused on two occasions at 7.25 pm on that evening but neither call was successful. The call which she made at 7.35 pm was successful and lasted for 9 seconds. A further call was made at 7.36 pm. This call lasted 14 seconds. There is no evidence as to the conversation between them. 42 At 7.46 pm the accused telephoned his friend, a retired Detective Sergeant of police, Mr Goymour. Mr Goymour was not home and the deceased left a message on his answering machine which he did not retrieve until the following Tuesday. In that message the accused said, "I need your advice on how I can take out an AVO. Please call me." 43 A minute after leaving this message the accused rang Const Goodwin at Dee Why police station. The constable does not have a clear recollection of the conversation but said in evidence that "I remember he asked me something to do with custody and that sort of thing, in relation to a child." 44 At 8.03 pm the deceased, who was by this time at the accused's home, telephoned her friend Lisa Mason. She discussed the situation with her. Ms Mason advised her to telephone the police. The deceased said that she had tried that but they had said it was not in their jurisdiction. They then discussed the possibility of the deceased talking with her lawyer. 45 During the course of the conversation Ms Mason could hear the deceased saying to her daughter "Do you want me to stay on the verandah?" and later "I'll go, will that make you happy, are you sure?" 46 The deceased said to Ms Mason "I'm really stressed." Ms Mason advised her to go down to Mona Vale police station and "make a statement so it's on record." 47 Mr Simon Hall gave evidence. He lived in a flat attached to the garage of the accused's property at 79 Lane Cove Road. He did not socialise with the deceased and the accused but from time to time would assist the accused with moving furniture and some property maintenance, including mowing the lawn. 48 Mr Hall was at home on Sunday 9 March 2008. He saw the accused and his daughter arrive home in the evening. He believed this occurred at about 5 or 6 pm. The accused said to Mr Hall that the deceased had sent him a text message and she was going to come over and pick Shannon up. The accused said to Mr Hall that there might be "a bit of a scene." 49 Later that evening he heard the deceased calling out to her daughter. He assumed that she was outside the house and knocking on the door wanting her daughter to come out. He did not actually see the deceased. He said that he only heard the deceased's voice and did not hear the accused. Mr Hall said that he heard the deceased's voice for 15/20 minutes and assumed that she was arguing with the accused at the time. 50 When cross-examined Mr Hall said that at times he heard the deceased and the accused arguing and said "I would hear them both yelling at times." He said that he had observed the accused after he separated from the deceased. He said "that at times he could see he was obviously deep, deeply upset with this, with the separation." I accept Mr Hall's evidence. 51 It would seem from the records of relevant conversations that the officer's initial recollection was inaccurate. I am satisfied that the telephone call to which he referred took place at 7.47 pm. I am satisfied that the phone call was from the accused. 52 Mr Manning, the solicitor, was at home on the evening of Sunday 9 March. At 8.13 pm he received a phone call from the deceased who said to him: "He's refusing to hand my daughter back on Monday morning. He is very angry about me having a new solicitor that is going to take him to court." 53 Mr Manning responded: "If you have any trouble call the police and get them to come down with you to get your daughter back. If the police don't help you, then call me on Monday morning and we will make an urgent application to the Family Court to have her brought back. 54 The deceased said to Mr Manning: "I will see what happens and I will call you on Monday." 55 She also said: "I have spoken to my husband about you as my new lawyer and that you are going to get this property matter finished and if necessary we are going to the Family Court. He is very angry about it. He loves his money. He doesn't want to give me anything." 56 Const Tanya Orchard was working at Mona Vale police station on the evening of Sunday 9 March 2008. She gave evidence that at about 8.30 pm on that day a female came to the station. She was holding a mobile telephone and began to cry. She said to the constable "my husband won't give my daughter back to me." 57 I am satisfied that this person was the deceased who explained to the constable that she had an informal arrangement with the accused for the shared custody of their daughter. The deceased said "I'm meant to have her tonight and he won't give her to me." 58 The constable indicated to the deceased that because there were no court orders in place she could not intervene. However, she telephoned the accused and endeavoured to negotiate between the deceased and the accused. The situation was ultimately resolved when the accused agreed that the deceased could pick up the daughter from his home at 8.30 am the following morning. 59 The constable said that the deceased left the police station after the constable had advised her that if the child did not go to school in the morning there would be a problem which would justify the police intervening. When she left the police station she was distressed and crying. The events of 10 March 2008 60 The deceased apparently arrived at the accused's house at 8.39 am on Monday, 10 March. At that time she sent the accused a text message saying "here now". She telephoned the accused at 8.42 am. The content of their discussion is unknown. 61 None of the neighbours gave evidence of hearing or observing any problem until about 9.30 am when Jilda Whiddon reported hearing screams. Her evidence was "Well I was in the kitchen, I heard lots of screaming, about 6 or 7 piercing screams. I actually didn't take any notice to it because I thought the little girl was home, and I had a daughter that if she fell over and scraped her knee you would have thought she was being killed. So I didn't take any notice, and just assumed it was the little girl, whose about 8, or was 8 at the time, and when she stopped screaming It thought – oh, they picked her up and she's alright. …" 62 Const Cindy Hain was on duty at Dee Why police station on 10 March 2008. She answered the telephone to a male person who identified himself as the accused. The phone call occurred at about 9 am and the accused said "My wife assaulted me last night, she just assaulted me again." 63 The constable took note of the accused's address but did not treat the matter as a priority. She asked the accused whether he needed an ambulance. She gave evidence that the accused did not say anything in response and hung up the phone. 64 The records of phone calls confirm a call at 9.08 am which I am satisfied was this phone call. 65 The constable said that the accused did not sound anxious during the phone call and it was a normal conversation. She said there was nothing in his voice that led her to believe that he was in any danger at that time. 66 Const Debbie Francis did not give oral evidence. However, a statement signed by her was admitted without objection. Relevant portions of that statement are: "4. Sometime shortly after 9.00 am on Monday 10 March 2008 I was aware that Constable Hain received a phone call on the main phone of Dee Why police station. I remember Constable Hain asking on the phone 'do you need an ambulance?' Constable Hain told me of the conversation she had and that the caller had hung the phone up immediately after she asked 'do you need an ambulance?' … 5. About 9.45 am on Monday 10 March 2008 I answered a phone call at the main switch of Dee Why police station. I said, 'Dee Why police station Const Francis speaking.' A male person said 'It is Greg Jacobs. I've called already. I need a police car.' I said, 'What is your address?' He said 'It is Lane Cove Road, you have my address. I need a police car.' … 6. I said, 'We've logged a job and police are on their way. Do you need an ambulance?' The male did not say anything. I said, 'What are your injuries?' The male hung the phone up. … 7. About 2 minutes later I received another call on the main switchboard at Dee Why police station. I said, 'Dee Why police station. Constable Francis speaking.' The same male said, 'It is Greg Jacobs. I called before. I do need an ambulance.' The male hung up before I could say anything. … 10. On both occasions I was on the phone to the male I did not hear any background noise. I did not hear a female's or any other person's voice. The male sounded calm the first time he called. The second time he sounded confident that he needed an ambulance. From his tone I assumed that the job had become urgent." 67 As I later relate the officer's recollection of the times of the telephone calls do not match the telephone records. Those records indicate that the first call taken by Const Francis was logged at 9.25:05 and lasted 20 seconds. The second call was logged at 9.45:09 and lasted 30 seconds. 68 The police did not arrive at the premises until 10.00 am. A paramedic arrived at 10.03 am. 69 Const Wasko was one of the first two police constables on the scene. The accused said to Const Wasko "help me." And when asked what happened he said "she wouldn't stop, I couldn't let go because she wouldn't stop." After being arrested and cautioned the accused said "Help me. I'm a quadriplegic." 70 The paramedic who was first on the scene was Mr Hughes. He had a conversation with the accused in which the accused said "We had a fight, she kept coming at me." 71 The deceased was found lying on the verandah of the house with her legs entangled in a bicycle. She was lying on her front. She was dead when the police arrived. Dr Matthew Orde the pathologist who conducted the autopsy confirmed that she had died by strangulation. He found some surface abrasions and bruises to the neck as well as multifocal fresh soft tissue haemorrhage within the anterior neck and adjacent to the larynx. The doctor indicated that fractures of the voice box or hyoid bone is an indication that pressure was applied to the neck. The doctor found that the lining of the voice box, the larynx, had haemorrhaged. The doctor also found "pinpoint haemorrhages within the linings of the eye and also within the lining of the mouth. These are indicative of increased intravascular pressure, a marker of pressure to the neck." 72 The doctor also found "multiple relatively minor recent injuries elsewhere over the body surface." The injuries were to the face, posterior upper limbs, right hand, lower anterior trunk and anterior surface of both legs. Some of the injuries had a component of near parallel linear marks which were consistent with the grooved pattern of the flooring of the verandah where the deceased was found. 73 The deceased was also identified as having an inflammation of the thyroid gland, a non-traumatic condition which would have existed for some time prior to death. 74 The linear patterned marks on the deceased were found on the left cheek, and the exposed midriff anteriorally consistent with the deceased having lain with her face toward the floor. 75 The doctor was asked: "Q: In terms of the finding, whilst the finding was strangulation, you are unable to say the exact mechanism of that apart from the fact, of course, that there was pressure to that area of the neck, was that right? A: Yes. There were, there were several structures in the neck which can be damaged by pressure, or other injury being applied to the neck, I am unable in this instance to say which of these structures would have led to death, damage to the structures would have led to death. So, yes, the mechanism remains uncertain. Q: Also of difficulty is the time it would take to cause the unconsciousness and then death, is that right? A: Yes. Um, as I said, there are various important structures to the neck. Depending on which of these are injured effects the timing of death. And such pressure may have been applied, then withdrawn, subsequently being reapplied again so it is very difficult for me to comment on the timing of such things." 76 When cross examined Dr Orde was asked whether he was: Q: "Satisfied that the deceased died as a result of strangulation, and that there are marks on her body that are consistent with a struggle having taken place and her having come into contact with at least the decking on the verandah? A: Yes. That's correct. 77 The doctor said that when he referred to strangulation he was using the term "fairly loosely." His finding was that "death was due to the pressure to the structures within the neck." 78 He was asked whether the evidence "would not be inconsistent with an arm having been around her neck and reapplied in that way." He said: "It's very difficult for me to, as you say, issue [sic] the exact mechanism of the application of pressure to the neck. I did find bruising in more than one place within the neck, which perhaps favours an element of manual pressure. But again, I use the word favour I cannot say for sure. And yes, the finding would be consistent with having been caused with an arm placed across the neck as well." 79 The doctor was unable to say whether there may have been a number of applications of pressure and agreed that death could have been caused by an arm being applied a couple of times. When it was put to him that the nature of the injuries were typical of a struggle he said that this was "quite possible." 80 Det Sgt Pooley was in charge of the investigation. He interviewed the accused at the scene. By this time the accused had been handcuffed and had been assisted from where he had been sitting on the verandah to an outside garden lounge where he was lying down. When asked to be interviewed he was assisted to sit up. The interview was short. The officers said that they were investigating the incident and asked the accused whether there was anything he wanted to tell the police. The accused responded by saying "I don't know." A short time later he says "She pulls …" "Pulls, pulls knives on me." … and "You guys came before." He was then asked: "Q: When was that? A: Years, years ago. Q: Years ago? A: Yeah, it started then. Q: Is there anything you want to tell me what happened quickly before, before I get you taken back to the police station? A: No, he said I can't say anything. Q: Okay. So you know you are under arrest … A: Bloody … bloody legs do I need an ambulance? Q: I can call you an ambulance back at the police station, if you desire. A: … where she bashed me. 81 Later on: "Q: If you require medical attention just let the officer know back there. A: She pulled a knife on me, she was goin' to pull a knife on me again. Q: She was going to, or she did? A: Well she was go [sic] run inside and get a knife. Q: This was this morning, was it? A: Yeah, so I just stopped her. Q: How did you stop her? A: By holding her so she couldn't get the knife, yeah. Q: Where did you hold her? A: To stop her getting the knife. Q: Did you see a knife? A: … stop from getting the knife. Q: Did you see a knife? A: I can't, can run, I can't get, she runs and she gets it like before. 82 The injuries to the accused's body were superficial, including grazing of his knees. 83 During the events of the morning the child Shannon was inside the house. She gave two recorded interviews to the police which were tendered in evidence. She was not cross-examined. I am satisfied that she was competent to give evidence. However, there are contradictions in her account of the events. Of particular significance in this case was whether on the morning of 10 March the accused and the deceased were fighting continuously or whether there was an initial altercation after which the accused came inside followed by a second struggle. 84 The relevant portions of her evidence are as follows: "Q: All right. So Shannon, do you know why you've come here to talk to me today? A: … Q: No, no idea at all? A: Because my mum and dad had a fight, big fight. Q: Because your mum and dad had a fight? A: Mmm Mmm. Q: Yeah/ What, what happened there? A: I don't know exactly what happened. Q: You don't know? A: 'Cause I was in a different room, I was inside … far away from that, where they were. I didn't really, I don't really know what happened. Q: Well, what I, I, I wasn't' there, so I don't know what happened either, so, when did they have a fight? A: First last night and then my mum came back in the morning and they had another fight. Q: So when you say, your mum came back in the morning and they had another fight, which morning was that? A: This morning. Q: Today? A: Yeah. Q: And where, where did the fight happen? A: Outside the door, I think, I think it was just outside the door. Q: Of who's house? A: My dad's. Q: And where's your dad's house? A: 79 Lane Cove Road, Ingleside. Q: What time in the morning did it happen? A: I don't know. Q: And can you tell me about the fight that they had? A: I don't really know. … Q: And so did you say, were you at your dad's house this morning? A: Yeah. Q: Yeah. And I think you said there was a fight last night as well. A: Yeah. Q: What happened there? A: They were fighting over who I went with, my mum or dad. Q: They were fighting over who you went with --- A: Yeah. Q: --- your mum or dad? What was supposed to happen? A: Well, stay at my dad's but my mum wanted to have me because it was a school night. Q: And then what happened? A: And my dad usually doesn't get me at school on time. Q: So where, this, where, this was last night. A: Yeah. Q: Is that right? Where did that argument happen or where did that fight happen? A: The same place outside the door at my dad's house. Q: So, so, tonight, so, did your mum, why did your mum come to your dad's house last night? A: 'Cause she wanted me because it was a school night. Q: When you stay at your dad, how, sorry, how often do you stay at your dad's? A: Usually every weekend. Q: And what night does your, or when, sorry, when does your mum usually, when do you usually go home to your mum? A: On school nights. Q: So when you stay at your dad's on a weekend, when would you, when do you go home to mum? A: About 7.00. Q: On what night? A: Monday. Q: On Monday? A: … on Sunday night. Q: On a Sunday night, is it? A: Yeah. Q: And so last night, did your mum come to pick you up? A: Yeah, but my dad wanted to have me because on Saturday night he didn't get to have me and was supposed to. Q: O.K. Why didn't, why didn't you get to stay at your dad's on Saturday night? A: I, I was moving and I wanted to stay at my mum's house. Q: So your mum came to get you last night, is that right? A: Yeah. Q: And you said they had a fight? And what were they saying? A: They were both having reasons to take me and my dad had the reason that, that I, he didn't get me on Saturday night and my mum had the reason that because it was a school night. Q: And where were you when they were having that argument? A: Part of the time I was in my dad's bedroom and part of the time I … Q: Sorry, part of the time you were in your dad's bedroom and … A: Yeah. Q: … what was the other part of the time? A: I was over near them. Q: You were over near them? A: Yes. Q: And could you hear what else they were saying? A: No. Q: No? And how did they sound when they were arguing? A: My mum was shouting and my dad was trying to keep calm. Q: And you, where did you say your mum was? A: In Elanora. Q: Sorry, last night, when they were having that argument, where was your mum? A: Outside my dad's house. Q: All right. A: On the veranda. Q: Is there a veranda there, is there? A: Yeah. Q: O.K. And where was your dad? A: My dad was inside, just outside the door. Q: And, and do you remember what time that was? A: No. Q: Were you watching television or anything else or doing something else? A: When I was in my dad's bedroom, I was watching television but when I came out I wasn't. Q: … what were you watching on television? A: I forgot. Q: Can't remember? A: (NO AUDIBLE REPLY) Q: And then what happened then? A: (NO AUDIBLE REPLY) Q: So your mum, you said your mum was outside the door? A: Yeah. Q: And dad was inside and I think you said your mum was shouting? A: Yeah. Q: And what was your dad doing? A: Trying to keep calm. Q: What was he saying to her? A: That, that, that he was just talking … he was saying that he only gets me 2 nights a week and so … he only got me 1 night. Q: O.K And, and how long do you think they argued for? A: Three quarters of an hour. Q: You think so? A: (NO AUDIBLE REPLY) Q: And, and what happened when the argument ended? A: My mum went home. Q: And what did you do? A: I stayed at my dad's house. … Q: And then the next morning or the, today, this morning and when you woke up, tell me what happened, what did you do? A: I went over to watch TV in my dad's room … Q: What were you watching? A: I've forgotten, and then my mum came back over and I, he told me to stay in there. Q: Sorry, you might have to speak up, just a little bit sweetie. A: Um. Q: So you said you were watching TV in your dad's room? A: Yeah. Q: Yeah? And you said your mum came back over, is that right? A: Yeah. Q: And, and what did your dad say to you? A: And my dad wanted me to go back in and stay in his room. Q: Right. And what did your dad do? A: He went outside and started fighting with my mum. Q: Sorry, I can't hear you sweetie. A: He went outside and starting fighting with my mum. Q: He went outside and started fighting with your mum. And how did you know they were fighting? A: I could hear them. Q: What could you hear? A: Forgotten what they said but --- Q: You can't remember what, what you heard? A: No. Q: Was it, was it loud or soft or something else? A: In the middle. Q: Could you hear voices? A: Yeah. Q: Whose voices could you hear? A: My mum's and partly my dad's. Q: So that was, whose voice was it? A: My mum's mostly and my dad's a bit. Q: And do you remember what your mum was saying? A: No. Q: And, and when, when they were, when they, when you could hear their voices, what happened then? A: Then I just stayed in his room, my dad's room. Q: Sorry, what did you do? A: I stayed in my dad's room. Q: Did you? And what did you do after that? A: I stayed there till the fight had ended and then my dad let me out. Q: What, you waited till the fight had ended. A: Yeah. Q: How did you know the fight had ended? A: 'Cause I stopped hearing them and then my dad came and said, Come out. Q: What did he say to you? A: I could come out. Q: And what else did he say to you? A: That's all. Q: And when you came out of his room, where did you go? A: Into the kitchen. Q: She went? A: Mmm Mmm. Q: And how do you know that she went? A: 'Cause my dad had seen her go. Q: 'Cause your dad saw her go? A: Yeah. Q: And you went into the kitchen, you said? A: Yeah. Q: Where was your dad? A: In the kitchen. Q: He was in the kitchen with you and what did you do in the kitchen? A: Had something to, I don't know … I think. Q: And what did your dad say to you while you were in the kitchen? A: … and then he … back in and come out after a while … and then -- Q: Sorry, I missed what you said then. A: And then he let me go in and out … Q: Of the kitchen? A: Yeah. Q: So when you went out of the kitchen where did you go? A: Back in my dad's room. Q: And what did you do in your dad's room? A: Just turned the TV back on. Q: Do you remember what you were watching then? A: No. Q: On the TV was it, was it an adult show or cartoons or something else? A: I've forgotten. Q: Have you? Did you see your mum? A: No. Q: So when you went back into your dad's room you turned on the TV on, what did you do then? A: Then I just stayed there and then you came. Q: Who came? A: The police. Q: Police came? A: Yeah. … Q: So, you just need to speak up a little sweetie, so you said, you looked through the curtains of your dad's room? A: Mmm Mmm. Q: Yeah? What made you look through the curtains? A: 'Cause I heard something outside. Q: What did you hear? A: When I looked out the curtains I noticed they had the police. Q: So where was your mum? A: My mum was outside. Q: She was outside? A: Yeah. Q: When the police came? A: Yeah. Q: What did you hear? A When I looked out the curtains I noticed they had the police. Q: So where was your mum? A: My mum was outside. Q: She was outside? A Yeah. Q: When the police came? A Yeah. Q: What was she doing? A They were fighting. Q: So when the police came, you said your mum was outside fighting with your dad. A And then when the police were coming in, I just don't know what they did then. Q: I think you said before, you were in the kitchen with your dad. A Yeah. Q: And where was your mum then? A She had gone. Q: She had gone? A Yeah. Q: Where did she go? A Back home. Q: And I think I asked you, how did you know she'd gone back home? A My dad told me. Q: And then from the kitchen, where did you go from there? A Back into my dad's room. Q: And I think you said you were watching television? A Yeah. Q: And do you, what was on TV? A Forgot. Q: That's right, you forgot, I'm sorry. And so you were in your dad's room, what was your dad doing while you were in there watching television? A Just fighting with my mum. Q: So after you were in the kitchen, you said you went back into your dad's bedroom to watch television. A Yeah. Q: And your, your dad was still fighting with your mum. A They were fighting again `cause my mum came back. Q: She came back, did she? A Mmm Mmm. Q: How did you know she'd come back? A `Cause I could hear her fighting again and I saw her. Q: You saw her, did you? A Mmm Mmm. Q: How did you see her? A: When I saw it just slightly through the door. Q: What was she doing? A Fighting. Q: What was she saying? A Don't know. Q: How do you know they were fighting? A `Cause I could see them and I heard them. Q: And what was your dad doing? A Fighting as well. Q: And what was he saying? A I don't know. Q: And when did the fighting stop? A I think when the police came. Q: And how did you know the fighting had stopped? A I stopped hearing them and then I heard something else. … Q: I'm just going to ask Nathan if he can think of anything else he wants me to ask you. When, Nathan just wants me to ask you, remember you were saying how you could see mum and dad fighting. Think, think about this morning, remember you said about the fighting this morning? A: Mmm Mmm. Q: When, when you said you could see them, what, what could you see? A I just saw my dad inside fighting and my mum outside fighting. Q: So your dad was inside? A Yeah. Q: Where was he inside, whereabouts? A Just at the door. Q: At which door? A The front door.. Q: Was he? And, and your, you said your mum was outside, where was she outside? A At the door. Q: At, at the front door, the same door? A Yeah. Q: And where was she standing? A Just outside the, the front door. Q: And what's, what's that area outside the front door? A The veranda. Q: Is it, that's right, you said the veranda before, didn't you? A (NO AUDIBLE REPLY) Q: Was, was, how was the door? A The door's O.K. Q: It's O.K? Was it, was it closed or open or something else? A Closed. Q: Pardon? A Closed. Q: Closed? So how could your dad see your mum? A 'Cause it was a clear door. Q: It's a clear door, is it? A Yeah. Q: Is it like a screen door, is it? A No. Q: No? But was the door closed though, was it? A Yeah, glass, a glass one. Q: A glass one, how did you know it was closed? A `Cause I saw it closed when I looked Q: Have, have your, have your mum and dad had fights before? A Yeah. Q: Have they? A But not as big. Q: Not as big, why was this one bigger? A I don't know. Q: So when you think of maybe some other fights that they've had what, why is this one bigger than those ones? A Usually, well, my dad got a bit hurt and - - - Q: Usually your dad got a bit hurt. A Yeah, my dad got a bit hurt this time but he usually doesn't. Q: O.K. How, what do you mean by that, how did he get hurt this time? A Had stuff all over his face. Q: He had stuff all over his face, what sort of stuff was that? A Blood, just a bit… Q: Do you think he had, sorry, you just need to speak up, sweetie, I'm sorry it's - - A Wasn't bleeding badly. Q: All right. What, whereabouts on his face? A Just around his face. Q: And, and what was it you think you saw, what was it on his face? A Just little bits of blood everywhere, little bits. Q: And where was he when you saw that on him? A He came, when he came back inside from the first fight. Q: And, and where was he when he came back inside, where did, where were you when you saw that? A In the kitchen. Q: That's when you went to the kitchen? A Yeah. Q: And what did he say to you while you were in the kitchen? A I've forgotten. Q: So, when he came back into the kitchen from the fight and you saw some marks, some blood on him, yeah, where was your mum then? A She'd gone back home and then she came back. Q: So how did you know she'd gone back home? A My dad saw her. Q: All right. He saw her go? A (NO AUDIBLE REPLY) Q: And did he say what was on his face? A No. Q: And what did he do when he was in the kitchen? A Just put some water on his face. Q: Did he? What did he, what, what, how did he do that? A Just got a bucket of water. Q: A bucket of water? A Mmm Mmm. Q:- Where from? A: The bathroom. Q: Is the bathroom near the kitchen? A Not really, he walked over to the bathroom … Q: Did he? A … Q: What did he do? A He put water on his face. Q: What did he use to wash his face? A A flannel. Q: And where's that flannel? A Um. Q: Where is it, where is it normally kept? A His bathroom. Q: What colour is it? A Red. Q: Is it, is that the one he used to wash his face? A Yeah. Q: And what did he do after he'd finished washing his face? A He kept on doing it. Q: I can't hear, sweetie. A He kept on doing it. Q: Did he? And after he'd finished, what did he do then? A That was when my mum came back. Q: Right. And how did you know she came back? A `Cause I heard Buffy barking and then I looked outside and saw her. Q: So when you said, you looked outside, whereabouts did you look outside from? A The gate, I looked over to the gate but I looked from, I went into my bedroom. Q: Your bedroom? A And then I went, then my dad told me to go in his bedroom. Q: And when you dad told you to go to your bedroom, what did you do? A No, he told me to go to his bedroom. Q: I'm sorry, I, sorry, that's my fault there. A … Q: Did he tell you to go to his bedroom? A Yeah. Q: And when he told you to do that, what did you do? A Just turned on the TV. Q: In his bedroom. A Yeah. Q: And what did dad do? A He went over and my mum started fighting with him again. Q: And, and what could you hear then? A I could just hear them fighting, I didn't, I don't know what they said. Q: And did you see your dad or your mum while they were fighting? A A little bit. Q: And how, what did you see? A Just saw them, on the way that mum was on the veranda. Q: Mum was, what was she doing on the veranda? A Fighting. Q: Fighting and was she, was she standing up or sitting down or something else? A Partly standing up and partly sitting down. Q: O.K. And where was your dad when, when she was on the veranda? A He was inside. Q: And, and where were you when you could see this? A I was in my dad's bedroom. Q: Yeah and, and how did you see it, what, where were you looking from? A Through the blinds. Q: And how did you know the arguing had stopped? A … dad came and told me and said … and my mum go. Q: I'm just going to ask Nathan if he can think of something else he wants me to ask you. When you said your mum was partly sitting down and partly standing up, whereabouts was she? A Just on the veranda. Q: And, and where did you say your dad was? A Inside next to the door. Q: And how, how close or how far apart were they standing, were they near each other? A About that far. Q: How far, just hold your hands up and show me. A That far. Q: So that's how far, that's how close they were together? A Yeah, the door was in the middle and then my mum was here and my dad was here. Q: And how was the door, what was, what was, was it, was it open or closed or something else? A: Closed and locked. Q: And when you said they'd had arguments before or fights before, where were they at? A … before they had separated. Q: O.K. And how long ago did they separate? A About 2 years ago. Q: So when you said your mum was partly sitting down and partly standing up on the veranda, what was she doing? A She was fighting with my dad. Q: Was she? So when you say, she was fighting with your dad, how do you know she was fighting with him? A: 'Cause I heard the fighting. Q: And could you, could you see anything else? A: Just saw them fighting. Q: And what were their, what were their arms and legs doing? A: They were fine, it was just what, how they were speaking. Q: Mate, can you think of anything else? You know when you said, you saw your dad and he had some, had some blood on his face? A: (NO AUDIBLE REPLY) Q: Do you know where that blood came from? A: No. Q: No? Did he say, what did he say where it came from, about where it came from? A: He didn't say where it came from. Q: And when he had the blood on his face, how was your dad, what, what did he look like? A: He looked just with red spots of blood on his face." 85 When the premises were examined blood was found on the verandah floor. It was also found in a green bucket which contained a liquid and two red socks. Blood was also found on the clothing of both the deceased and the accused. Blood was also found on the inside of the door to the verandah. Knives were located in the kitchen but they had no blood staining on them. 86 The accused was arrested and taken into custody. In the late afternoon he was again interviewed by Det Sgt Pooley. The interview was short. The accused said that he did not feel up to talking about the matter at that time. He was asked about his telephone conversation with the police earlier that morning when he said "Just help me." He said that he could not "go there" and repeated a plea "to take the pain away." When asked about some marks on his knees he said "she did them to me." 87 He was asked whether he had any previous fights or domestic arguments with the deceased. His response was "didn't get any help." His further response was "called you but you didn't help." 88 The accused did not answer any other question of any significance. 89 Evidence was given concurrently by two psychiatrists. Dr Rosalie Wilcox was called by the Crown and Dr Olav Nielssen by the accused. 90 Of particular significance in the resolution of this matter is the report which the accused made of the incident to both psychiatrists. To Dr Wilcox the accused reported that on the Sunday evening the deceased had come to his premises and "banged on the doors and the windows and threatened to break in, in order to remove Shannon." The accused said he responded by saying that he would call the police if she tried to break in and that there was "a lot of yelling on both sides." The accused said to Dr Wilcox that he did not feel comfortable about allowing the deceased inside because "he did not feel right in himself and said he felt uneasy and anxious." The account of those events given to Dr Wilcox is consistent with the evidence of the neighbours to which I have earlier referred. 91 On the next morning the accused reported that the deceased arrived at his house and then "all hell broke loose." He said his recollection of their argument was "quite vague." Dr Wilcox reports that "he said he went out to talk to her and one minute she was calm and they had a conversation about the police and then she became aggressive and angry with him for refusing to let her in the night before." He reported to Dr Wilcox that the deceased had said "she was going to bring Armageddon on him." 92 The accused reported getting his neck wrenched, the deceased going for his groin and having no strength in his stomach. The doctor reports that the deceased said: "He was frightened and concerned for his safety. He mentioned that his mother had given him a new set of kitchen carving knives for the house and said he was aware that it would have taken Sandy only five to ten seconds to reach the knives. He told me that he remembered 'holding on for dear life' and said he believed that if he let go he would be dead because she could get something and he believed that she was out to destroy and kill him …. At some stage he eventually decided he could let go and rang the police. He was asked the status of Sandy's condition when he called the police and said she was lying down. He said he asked the police for help and gave his address and then hung up. When the police did not attend he rang back and when they still did not attend he said he rang back again. Throughout this time he remained inside the house. When asked if he made any attempt to see if Sandy was alive or to resuscitate her he told me that he did not go out onto the verandah again. 93 The accused reported to Dr Wilcox that when the police arrived he struggled to the door and crashed to the ground. He told the doctor that "one policeman told him that Sandy was okay, and then someone else said she was not alright and then the ambulance arrived and he was not sure they attempted to resuscitate her." 94 The accused also gave an account of the events to Dr Nielssen. He told the doctor that the deceased had attacked him and that he had not intended to kill her. He repeated his statement to Dr Wilcox that on the Sunday evening the deceased arrived at his home and walked around the house banging on the windows. He reported to Dr Nielssen: "He became very anxious when he saw his wife because he was reminded of her threats and the incident in which she had threatened him with a knife. He said he spoke to her through the glass rather than allowing her into the house and told her that he expected Shannon to stay with him until the following morning." 95 With respect to the events of the following morning the accused reported to Dr Nielssen: "That he tried to stay calm but she attempted to hit him and he grabbed her arm to deflect the blow. He said that she attempted to hit him in the genitals and he felt his neck and back wrench as he attempted to evade the blow. He said that he felt extreme pain in his neck and said 'from that moment it was a blur … I am still trying to work things out.' Mr Jacobs said that he believed he may have suffered a brain injury as well as the further injury to his spinal cord. He said that he had bruises and grazes on his knees from being dragged in the struggle. He said that he did not have a clear memory of what happened but believes he put his arm around his wife's neck to stop her from hitting him and remembered that his arm became weak after some time. He said that he believed he was hanging onto her in self defence because if he let go she would go and get a knife. He said that he did not realise that his wife was dead until afterwards and rang police repeatedly for help because he felt in danger of further assault." 96 Dr Nielssen reports that the accused's state of mind before his wife's death was that he was probably distressed over the conflict and anxious because of threats she had made to him and her previous violence towards him. He said that he had not slept well for several months and was depressed because of the custody issue. He said that he had been experiencing anxiety symptoms. Dr Nielssen concluded that the accused's "depressed mood and increased level of anxiety is likely to have affected his perception of the events, including the level of threat posed by his wife. An altered state of awareness arising form his abnormal state of mind may also have affected his awareness of the consequences of his actions as well as his capacity to control his actions." The evidence of Associate Professor Yeo 97 Medical evidence was also given by Associate Professor Yeo, a specialist in spinal cord injury. He was one of the doctors who treated the accused following his water skiing accident and his subsequent car accident. He gave evidence that because of his injuries and a spinal fusion operation the accused has a marked loss of sensation below the T3 spinal level (just above the right and left nipple line). He has normal motor power in both upper limbs and normal reflex activity except for a diminished response in the right tricep jerk. 98 Associate Professor Yeo is of the opinion that it is probable that the accused has a permanent disability necessitating assistance to complete his normal activities of daily living. But for his very significant efforts to rehabilitate himself he is of the opinion that the accused would now be confined to a wheelchair. As he ages this will be inevitable. He says that the accused is prone to spasticity and will require medication and physiotherapy to control his susceptibility to neck and shoulder pain. 99 The level of fracture was at the lowest bone in the neck. At 10 March 2008 he walked but with a marked limp. By reason of his disability he was vulnerable to losing his balance. The Professor was of the opinion that although his upper body strength was significant he would nevertheless be unable to sustain physical effort using his hands for the same period as a healthy person. His ability to use his arms repeatedly or for a continuous period is less than that of a healthy person. 100 When the Professor saw the accused after 10 March he reported severe neck pain which was limiting some of his movements in his upper limbs, shoulders and neck. The Professor understood that the accused was in a "more paralysed state" for a period after the incident. Because an MRI scan showed no change in the pathology of the spinal cord Associate Professor Yeo concluded that at the time of the incident there was some impact, stress applied to the neck, to the soft tissue, muscle ligaments and scar tissue from a previous injury, which is not as elastic as normal tissue is and tears more readily, and therefore, gives rise to the pain that he complained of." 101 Associate Professor Yeo is of the opinion that the accused suffered spinal shock during the incident. This is a severe disabling phenomenon (it happens to persons engaged in contact sport such as rugby) which involves a profound loss of voluntary movements but resolves within a period of time without leaving residual symptoms. If he had suffered spinal shock the accused would have been more incapacitated than normal and would have had difficulty in getting himself from the ground. He would have needed assistance to walk. 102 Although before the incident the accused was able to move around without the need for a wheelchair this was necessary for a period after his arrest. At a later point he has been able to walk independently using a stick for support. 103 When describing the accused's capacity in an altercation Associate Professor Yeo said: "It would be easy to push Mr Jacobs over." It was necessary for him in practical terms to rely on one limb for balance and even if in a wheelchair could be fairly readily dislodged from it. He would be readily knocked over if he was not in a wheelchair. 104 Associate Professor Yeo was of the opinion that the accused was a vulnerable person and because of his compromised capacity for balance, would not be able to escape from an assailant and would have little capacity to defend himself in a conventional manner. However, he had the capacity in his arms and hands to strangle another person, which is, of course, confirmed by the tragic events of the morning of 10 March 2008. Psychiatric opinions 105 The psychiatrists agreed that at the time of the incident the accused was suffering from depression. They agreed that the depression was long standing and multifactorial. It was associated with his disability and the more recent separation from his wife and not seeing his daughter on a regular basis. However, the psychiatrists disagreed as to the severity of his condition. Although Dr Wilcox accepted that he may have been suffering from depression prior to the incident she is of the opinion that it is more likely that the incident itself was a stressor occasioning depression. 106 Dr Nielssen has a different opinion. In his view the accused was suffering from dysthemia. He reached this conclusion because of the chronic pain and disability which the accused suffered and more recent events. Dr Nielssen was aware that the accused had previously been treated with anti depressant medication. He believed that his symptoms had increased in severity in the months before this incident manifesting in increased anxiety and difficulty in managing his day-to-day role. The evidence indicated that the accused's house was a mess, he was prone to negative thinking and his energy levels had deteriorated. 107 Although Dr Wilcox accepted that the accused had been suffering from a moderate degree of depression she did not believe it was severe enough to contribute to the accused not knowing what he was doing or losing control. On the other hand Dr Nielssen was of the opinion that the accused's anxiety about a possible attack may have been heightened by his underlying condition. He said, having viewed the recording of the interviews with the police that "it does seem that there is some interruption in his memory of events and possibly his awareness of his actions that he stated that he didn't even know that his wife was deceased at one point, and that a person who has a depressive illness is more susceptible to dissociative episodes but of not being aware of their surroundings." 108 It was apparent that Dr Wilcox had formed an adverse view of the accused's truthfulness. Her opinion had been formed with some misunderstanding of the sequence of relevant events. She was also unaware of the fact that the accused had sought advice about obtaining an apprehended violence order the previous evening. When informed of that fact she minimised its significance. In my opinion Dr Wilcox's view of the accused's condition was influenced by these matters, if it was necessary to resolve the disagreement between the psychiatrists I could not accept her opinion. 109 The true nature of the accused's psychiatric health is of greater significance with respect to the claim by him that at the time of the incident he was in a dissociative state. This diagnosis was informed by the fact that the accused reported an incident the previous evening when he believed a motorcycle had collided with his car. This did not occur. He also supported his diagnosis by the fact that the accused reported that he was unable to remember any significant detail of the incident of the morning of 10 March 2008. In the ultimate I do not believe it necessary to make findings which resolve the differences between the two psychiatrists. Findings and conclusions 110 I firstly consider the offence of murder. 111 There are difficulties in establishing the relevant sequence of events. However, I am satisfied that by reason of his disability the accused was vulnerable if caught up in a physical altercation. He could not run and would have trouble maintaining his balance if he had to contend with an aggressor. The history of the relationship between the accused and the deceased was turbulent and in recent times dysfunctional. I am satisfied that the deceased was prone to anger, possibly borne of frustration, and had previously physically assaulted the accused. On one occasion she was observed to push him over. I am also satisfied that on occasions the accused would retaliate. However, he did so from a position of physical difficulty although I do not doubt that he was capable of anger toward the deceased. 112 In the period immediately preceding the events which commenced on 7 March 2008 the tension between the two had increased. No doubt buoyed by the legal advice she had been given I am satisfied that the deceased had decided to assert herself more than she may have in the past. This may in part have been her motivation for not delivering Shannon to the accused's home on the Saturday night. I also find that she had spoken in aggressive terms to the accused on the Friday and said to him that Armageddon was approaching. This would have been of concern to the accused. However, there was nothing to suggest that as a consequence he decided to kill her. 113 I also find that on the Sunday evening she was distressed when the accused would not give up Shannon. I find that she did go to the accused's house and bang on his windows. Her conduct was sufficiently aggressive that it caused the accused to make enquiries about obtaining an AVO. When she could not retrieve Shannon she went to the police station and asked the police to intervene. 114 I am satisfied that on the Monday morning she would have remained determined to assert herself in the relationship. I believe that it is more likely that she rather than the accused initiated the physical altercation which occurred. There is no evidence which suggests that the accused had ever been the initiator of a physical exchange between them and his vulnerability makes this unlikely. The deceased being an able bodied and healthy woman would have had no difficulty in running from the accused or in most circumstances releasing herself from his grasp. It was only because in some manner, which I cannot explain, they ended up on the floor together that the accused would have been able to apply the force necessary to end her life. 115 Although it is apparent that the accused's actions caused the deceased's death I cannot make any conclusive finding as to the sequence of events. The accused said to Dr Nielssen that he put his arm around the deceased's neck to restrain her after she had aggressively attacked him and "gone for his groin." 116 The evidence of Associate Professor Yeo which I accept, and which was not challenged by the Crown, is that it is probable that the accused suffered spinal shock, which would have immediately compromised any capacity he had in his legs. He would have immediately collapsed. Accordingly, if this was the sequence of events, it is likely that the accused had his arm around the deceased's neck when, as he collapsed, they fell to the floor together. Obviously if the deceased was the initial aggressor the accused had limited means by which to defend himself. Having fallen to the ground, if the accused released the deceased he would have been immediately vulnerable to further attack. Although by continuing to hold the deceased the accused must have applied pressure to her neck area for a sufficient time to extinguish her life there is nothing in the evidence to suggest that the accused was aware that he was extinguishing her life and furthermore, I could not conclude beyond reasonable doubt that he intended to kill her. Accordingly, the accused must be found not guilty of murder. 117 I have already indicated that the accused conceded that it was his act, which he says was holding the deceased around her neck which caused her death. Unless involuntary or done in self-defence his action would constitute the offence of manslaughter. Accordingly, it is necessary for me to consider in this context the issues relevant to self-defence. 118 The accused has not given a complete account to anyone of the sequence of events. He said to both Drs Wilcox and Nielssen that his recollection was deficient. Given the trauma associated with the event I could not find that the accused was not then telling the truth. He said that when the deceased attacked him he was concerned for his safety and in particular was worried that she would go to the kitchen and retrieve a knife which she could use to hurt him. He said that she had threatened him with a knife previously. 119 A complicating factor in identifying the sequence of events is the sequence of telephone calls which the deceased made to the police. It was only in the third call that he asked for an ambulance which suggests that at the time of the two earlier calls he did not know the deceased had died. This further suggests that he was not aware that the force he had applied and the time over which he had applied it was sufficient to extinguish life. It is reasonable to accept that at least initially he called the police for help in restraining his wife in circumstances where he felt vulnerable. 120 It is possible that there were two physical exchanges between the accused and the deceased. This was the construction the defence placed on Shannon's evidence. However, I could not positively make that finding. If I could, it would make it more likely that the accused was in fear and seeking the assistance of the police to protect him. 121 I am satisfied that the accused was vulnerable because of his disability and would have had a heightened sense of personal danger than would have been felt by a healthy male confronted with aggression from a woman, whether armed or not. 122 I find that the deceased had previously behaved violently towards the accused and was capable of fits of uncontrolled anger toward him. I have found that the accused suffered a spinal shock. This must have occurred at an early point in their struggle and before they fell to the floor. This would have immediately disabled the accused's lower limbs with the consequence that his vulnerability was increased. The only means he had to protect himself from further aggressive acts from the deceased was to hold onto her. He would have been unable to stand up and, if not supported, would have immediately fallen to the floor. 123 It is likely that the accused had only one opportunity to take hold of the deceased. If his hold was not firm she would easily have escaped and would have been free to attack him in his now grossly disabled condition. 124 As I have indicated, the accused reports that "she kept coming at me" and that he was fearful that she would go to the kitchen and retrieve a knife. Although there is no evidence, apart from the accused's account that the deceased was intent upon obtaining a knife, I could not find that the accused was lying about his fear. 125 The evidence of the episode in 1996 makes it possible that his concerns have been honestly reported. Although there is no record of the deceased threatening the accused with a knife on that occasion, I am satisfied that they must have had a very significant argument during which or at the end of which the deceased threatened to use a knife to kill herself. 126 Irrespective of the influence on his mind of the possibility of a knife being retrieved by the deceased his vulnerability left him with no reasonable option but to seek to restrain her. I am satisfied that the accused could reasonably fear that in the face of aggression from the deceased, having been rendered immobile by spinal shock, he would have believed himself to be acutely vulnerable to an attack from the deceased whether or not she had obtained a knife. His only defence was to seek to subdue her so that she would cease any physical aggression toward him. 127 The forensic evidence confirms that the deceased died by strangulation. The manner in which the necessary force was applied cannot be determined. It is likely that the accused had taken hold around the deceased's neck. If, as would also seem likely, the deceased had struggled and sought to free herself, the only reasonable means of defending himself was to maintain his hold. Although in so doing he has applied sufficient pressure to end the deceased's life I am not satisfied beyond reasonable doubt that the accused did not believe that it was necessary for him to act as he did in order to defend himself and that the response that he made to the threat to himself as he perceived it was not reasonable. 128 In these circumstances it is unnecessary for me to consider diminished responsibility, provocation or automatism and the accused must be found not guilty. 129 I find the accused not guilty and accordingly enter a verdict of acquittal. ********** 14/05/2009 - Title should be R v Jacobs - Paragraph(s) cover sheet 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. 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