R v Cook [no 3] [2005] ACTSC 126 (6 December 2005)

Last Updated: 7 February 2006

R v JAMES HOWARD COOK [No 3] [2005] ACTSC 126 (6 December 2005)

CRIMINAL LAW - trial by judge alone - murder- whether any evidence of requisite intent or recklessness - whether evidence to support alternative verdict of manslaughter - whether self defence excluded.

Supreme Court Act 1933 (ACT), s 68C

Evidence Act 1995 (Cth), s 144

Crimes Act 1900 (ACT), ss 12, 15

Criminal Code 2002 (ACT)

Wilson v The Queen (1992) 174 CLR 313

R v Lavender 218 ALR 521

Pemble v R (1971) 124 CLR 107

Viro v The Queen [1978] 141 CLR 88

Zecevic v DPP [1987] 162 CLR 645

No SCC 99 of 2004

Judge: Crispin J

Supreme Court of the ACT

Date: 6 December 2005

IN THE SUPREME COURT OF THE )

) No SCC 99 of 2004

AUSTRALIAN CAPITAL TERRITORY )

R

v

JAMES HOWARD COOK

ORDER

Judge: Crispin J

Date: 6 December 2005

Place: Canberra

THE COURT FINDS THAT:

1. the accused is not guilty of the offence charged, namely that on 27 December 2003 at Canberra in the Australian Capital Territory he murdered Daniel Paul Beck;

2. the accused is not guilty of an alternative offence of manslaughter of the said Daniel Paul Beck.

1. On 28 November 2005 the accused was arraigned before me upon an indictment alleging that on 27 December 2003 he murdered Daniel Paul Beck. Upon his arraignment, the accused pleaded not guilty.

2. As the accused elected to be tried by judge alone, I am bound by the requirements of s 68C of the Supreme Court Act 1933 (ACT). That section is in the following terms:

(1) A judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and any such finding has, for all purposes, the same effect as a verdict of the jury.

(2) The judgment in criminal proceedings tried by a judge alone shall include the principles of law applied by the judge and the findings of fact on which the judge relied.

(3) In criminal proceedings tried by a judge alone, if a Territory law would otherwise require a warning to be given to a jury in such proceedings, the judge shall take the warning into account in considering his or her verdict.

3. As in trials by jury, the accused is entitled to the presumption of innocence, the Crown bears the burden of proving each element of each charge and the standard of proof is proof beyond reasonable doubt. When, as in the present case, the Crown has indicated that it relies upon circumstantial evidence, the evidence must prove beyond reasonable doubt that the circumstances are such as to exclude any reasonable hypothesis other than the guilt of the accused.

4. The verdict must be determined solely by reference to evidence properly admitted at the trial or matters of common knowledge that may be taken into account by virtue of s 144 of the Evidence Act 1995 (Cth).

5. In this jurisdiction the offence of murder is defined by s 12 of the Crimes Act 1900 (ACT) which provides that:

(1) A person commits murder if he or she causes the death of another person--

(a) intending to cause the death of any person; or

(b) with reckless indifference to the probability of causing the death of any person.

6. There are only two elements within the offence of murder: the offender must have caused the death of another person, and he or she must have done so either with the intention of causing the death of any person or with reckless indifference to the probability of doing so. In the present case, the Crown does not suggest that the accused intended to cause the death of the deceased, but does allege that he acted with reckless indifference to the probability of doing so. In this context, the element of "reckless indifference" requires proof that the alleged offender adverted to the probability that, if he or she committed the relevant act, it would probably cause the death of another person.

7. Upon the trial of a person for murder, it is open to the jury or, in a trial by judge alone, the judge, to return a verdict of not guilty of murder but guilty of manslaughter.

8. Section 15 of the Crimes Act provides that, subject to certain statutory exceptions of no present relevance, all unlawful homicides other than murder constitute manslaughter. For present purposes it is unnecessary to canvass the difference types of voluntary and involuntary manslaughter embraced by this section. In this case, the Crown relies only upon the principle that manslaughter is committed when a person causes the death of another by an unlawful and dangerous act: see, for example, Wilson v The Queen (1992) 174 CLR 313; R v Lavender 218 ALR 521.

9. There are three elements of such an offence: the offender must have caused the death of another person, and he or she must have done so by an act that was both unlawful and dangerous. The second element, that the act must be "unlawful", will be established only if it can be shown that the action itself constituted a criminal offence and not merely a civil wrong: Pemble v R (1971) 124 CLR 107 at 122. Hence, the prosecution must prove not merely the physical act said to be unlawful, but any mental elements, such as intent or recklessness, required to render the act criminal. The third element, that the act must be "dangerous", will be established if it can be shown that a reasonable person in the position of the accused would have realised that his or her actions created a real danger for others.

10. Furthermore, an accused person may not be convicted of either murder or manslaughter if the act that caused the death of the deceased was committed in self defence. As Barwick CJ said in Viro v The Queen [1978] 141 CLR 88 at 95, although it is common to speak of the "defence" of self defence, when the proven facts give rise to a reasonable possibility that the fatal act was done in self defence and the accused raises the question, the onus rests upon the Crown to negative that possibility; that is, to prove beyond reasonable doubt that the fatal act was not done in self defence. In the subsequent case of Zecevic v DPP [1987] 162 CLR 645 at 661, the High Court explained that, in considering any possibility of self defence, the decisive question is whether the accused believed on reasonable grounds that it was necessary to do what he or she did in self defence. Accordingly, if there is a reasonable doubt that the accused may have had such a belief and there were reasonable grounds for the action, then he or she must be acquitted. It is also necessary to keep in mind the observations of Wilson, Dawson and Toohey JJ in Zecevic at 662 that the issue of self defence should be approached "in a practical manner and without undue nicety, giving proper weight to the predicament of the accused which may have afforded little, if any, opportunity for calm deliberation or detached reflection".

11. Furthermore, even if self defence is excluded, provocation may in some circumstances reduce the criminal liability of the offender from murder to manslaughter, though Mr Salmon QC, who appeared for the accused with Mr Sabharwal, did not raise any such issue in the present case.

12. Mr Refshauge SC, the Director of Public Prosecutions, began the Crown case by tendering a statement of agreed facts, the relevant portions of which are as follows:

"James Howard Cook killed Daniel Paul Beck in the early hours of 27 December 2003 by compressing his neck during the course of an argument.

Mr Cook and Mr Beck lived across the road from each other in Fifth Avenue at the Canberra South Motor Park. Mr Beck lived in an onsite caravan with an annexe at number 86 Fifth Avenue. Mr Beck leased this van from his mother Deborah Wirth who owned it. Mr Cook lived in a cabin, which was almost directly across from the deceased's van. Mr Beck had been living at the Park for about three years and Mr Cook had been living at the park for about a year. Mr Beck's van was situated next to one of the park amenities blocks.

On 26 December 2003 John Kelly, the partner of Mr Beck's mother, returned from Sydney where he had spent Christmas with his sister. He planned to take Mr Beck to his home in Gordon. His flight arrived at about 9.30am and with a friend he drove to the Motor Park. He spoke to Mr Beck who said that he was not sure when he would catch up with him that day as he had some things to do, and that he would call Mr Kelly when he was ready to travel to (sic) that they could meet at a mutually suitable time. John Kelly then left the Park. Mr Beck did not call, so Mr Kelly rang Mr Beck's mobile phone three times during the day but Mr Beck did not answer.

Mr Beck started drinking alcohol at the latest by the middle of the day. He was drinking mostly spirits, sometimes with a mix.

By 4 pm Mr Beck was well under the influence of alcohol. At about this time he walked to a van at site 62 on Fifth Avenue. This van was occupied by Annette Maurer. She told him to leave the annexe and he did so.

At some stage in the afternoon Mr Beck asked Mr Cook to join him in a drink. They drank outside Mr Beck's van, with Mr Cook drinking beer and Mr Beck his spirits. Mr Cook states in the police interview (at 11.01 am, 27 December 2003) that he had consumed about 10 standard drinks, starting at between two and three pm and stopping at around midnight.

At about dusk, Shannon White, who had arrived at the park a few days earlier, joined the two outside Mr Beck's van. All three continued drinking. Mr Beck was calling Mr Cook "pussy" and "soft cock" as Mr Cook was not drinking as much as him.

By about 10.30pm both Mr Beck and Mr Cook were well under the influence of alcohol. At about this time Kirk Maurer walked past Mr Beck's van, and chastised him for annoying his wife earlier. Mr Beck had a friendly chat with Mr Maurer.

One of the three handed Mr Maurer a beer that he consumed during the conversation with Mr Beck and Mr Cook. At that point Mr Cook and Mr Beck were being friendly towards each other. Shannon White was still at the van.

Mr Maurer left after about four minutes. As he was leaving Karen Auzmendi pulled up in her car with her daughter Amy, and her niece, Lisa Van Setten. Mr Beck directed them to park in his carport. Karen Auzmendi arrived at the park at 10.46pm, swiping her electronic card at the boomgate, and she drove out of the park at 11.43pm, again swiping her card. While the three women were at the park they spoke with Mr Cook, Shannon White and Mr Beck, and Karen Auzmendi accepted a drink. Mr Beck was calling Mr Cook a "soft cock" because he would not drink. He was also bragging about sexual conquests. He repeatedly called Mr Cook "soft cock". Mr Cook was at this time sitting on the ground near Mr Beck's van and did not respond to Mr Beck. On one of the occasions when Mr Beck was teasing Mr Cook he put his hands on Mr Cook's shoulders and pushed him. At one point, Mr Cook spoke to Karen Auzmendi about the fact that he was upset at the recent breakup with his Japanese girlfriend some three weeks previously. When the three women left the three males, neither Mr Cook nor Mr Beck appeared to be injured in any way.

Some time after the women left, Mr Cook left the drinking session, returning to his caravan. Mr Beck, who was at this stage drinking out of a glass mug, walked over to Mr Cook's van and banged on it, asking Mr Cook to come out. This incident was witnessed by John Dublewicz, who had returned to the park shortly beforehand and was on his way to the amenities block. Mr Cook eventually came out of his cabin and joined Mr Beck who by this time was standing in the middle of Fifth Avenue between his van and Mr Cook's cabin. The two hugged and then wrestled, causing Mr Beck's mug to fall onto the road and break. John Dublewicz also witnessed the end of this struggle as he was by this time returning from the amenities block. Mr Beck did not seem distressed by his mug breaking, as he returned to his van and obtained another drinking glass.

After this incident Shannon White decided to go to sleep and he walked away from Mr Beck's van. Not long after this Kirk Maurer walked past Mr Beck's van but neither Mr Beck nor Mr Cook were present.

Sometime between when Shannon White left Mr Beck's van and before 1.52am on 27 December 2003, Mr Cook and Mr Beck had an argument. The argument involved Mr Beck asking Mr Cook to replace a previously broken beer mug. Mr Cook asked, "What if I can't?" Mr Beck has then said, "Well if you can't, I'll have to kill you." Mr Cook is then to have said, "We'll see who kills who." Mr Beck pushed Mr Cook around inside Mr Beck's caravan. Mr Cook then ran out, and Mr Beck went out after him. In the later interview with police, Mr Cook was asked what then happened and stated:

A101 ...	What happened then was ah, I got him to the ground, and got him in a headlock. He had in fact - he had in fact physically had a go at me, prior to this, and I've always been very - very sort of limp to the extent that he thought he had it over me. And on this occasion, I -I ah, I gave my full force. And that was pretty much how it happened.
Q103	Can you just cover a bit more, when you got him to the ground and got him in the headlock, what was happening then?
A103 ...	Ah, well I was trying to control him, he had a pretty good tackle of me, and I was - prior to me taking control of him, or - or, um, I seem to remember he sort of - it's hard to remember. He seemed to be pushing me around with a show of back and forward - - -
Ql05	Okay, when you say you let go with your full force, what do you mean by that?
A105	Ah, well I - I used my full strength to take control of the situation.

Mr Cook then took control by placing Mr Beck in a headlock. In the interview with police, Mr Cook describes the headlock he applied to Mr Beck as follows:

Q107	And when you say you had him in a headlock, can you describe that to me in a bit more detail?
A107	Um, I - with my right hand, ah, up against his neck, ah, and then probably my left hand, oh - - -
Q108	So what position were you to him?
A108	I, at this stage, this late stage, ah, was crouched on my knees, above him.
Ql09	And how was he positioned?
A109	On the ground, face down.
QllO	And you're saying you had your hand - your right hand?
All0	Yes.
Qlll	Okay, and where was that positioned?
All1	Ah, pulling on his neck.
Q112	Okay.
A112	And my left was probably pushing, that's not so clear.
Q113	How much force were you using at that point?
A113	Oh, considerable.
...
Q121	You were on your knees, he's facing away from you, and you've got your arm - you said you had your arm, right arm around his neck?
A121	H'mm.
Q122	What did you think was going to happen when you were applying that amount of force, and you had your arm around his neck?
A 122	I s'pose I was trying to slow him down, ah, and hopefully - hopefully give up. I could have judged, such the - would have been okay, would have been different, um, situation now.
Q123	And also at that point, whilst you were in that position that you spoke about before, what was - what was Daniel doing?
A123	When I was in control.
Q124	H'mm.
A124	Struggling. And at one stage he - he rolled me over, and had control of me, but I managed to regain the control.

Later in the interview, Mr Cook described how he was taught some years ago to apply a headlock:

Q313	Okay. We were talking before about headlocks, and I asked you if you'd ever put someone in a headlock before. What do you think happens to someone when you put them in a headlock?
A313	Um, I remember a fight when I was out in Manuka one night, a young American guy, we got drinking and mucking around he just showed me, he was a smallish feller, he showed me how effective a headlock was, and could be, and put me in one.
Q314	And how did he show you?
A314	He just took control of me. I said - I was standing up and he said "Look, I'll show you in terms of effectiveness." Had him like this and he had his knee up against my back, said - like that - and said "Wow, that's incredible, you know".

The prisoner and the victim fought and during the fight the prisoner gained control of the victim to the extent that the victim was no longer any threat to the prisoner and had stopped struggling. Nevertheless, for a short period of time, the prisoner continued to exert pressure on the neck of the victim which pressure ultimately caused the victim's death.

After killing Mr Beck, Mr Cook walked to the phone box near the front entrance of the park and rang '000' at 1.52am. His first words to the operator were:

"Hello. Uh, sir um, this is um, rather - rather a strange call, um, I need to report that I - I myself have um, in the recent hour murdered somebody."

Once police arrived, Sergeant Anton Majer questioned Mr Cook about what happened. Mr Cook replied:

"Well, it's a very - short of the usual words to describe such a situation but he has threatened me in such a severe way and pushed me around in a psychological way, that it led to my murdering of him."

Dr McCreath, a forensic pathologist examined the body of Mr Beck and her findings included:

i) The injuries to the deceased are consistent with being placed in a headlock and the neck being compressed.

ii) Bruising was visible on the right hand side of the deceased's upper back.

iii) The time between the neck being compressed and death is estimated to have been half a minute.

The blood alcohol level of Mr Beck was 0.198. A blood alcohol reading was not performed on Mr Cook."

13. Whilst this statement records the fact that the accused told the operator who answered his `000' emergency telephone call that he had "murdered somebody", the Director fairly conceded that this, and similar comments from the accused should not be construed as admissions that, as a matter of law, whatever he had done constituted murder but, rather as admissions that he had committed some act that had caused the death of the deceased. These concessions were entirely appropriate. There was no evidence to suggest that the accused had any particular knowledge of the relevant legal principles, he was clearly intoxicated, and the comment he made to Sergeant Majer suggests that he was uncertain as to what terms he should use to describe what had occurred.

14. The statement of agreed facts was augmented by the evidence of a number of witnesses called to give evidence on behalf of the Crown, and by the tender of photographs of the scene, records of the times at which people entered and left the caravan park and expert reports. The videotape of the police interview, from which the excerpts quoted in the statement of agreed facts were drawn, was also tendered and played in full.

15. Ms Smith, who was a police constable at the time of the incident, first attended the scene in response to the `000' call. She asked the accused what had happened and he responded, "I killed him, he was on - he was on at me all the time". She noted that he had dry blood on his right thumb and hand and minor grazes on both of his knees. He told her that the incident had happened about 45 minutes prior to him calling `000'. She asked him whether she was going to find any guns or knives in his cabin and he replied "No, nothing like that, I strangled him". She and another police officer, Constable Earl, walked with the accused up the main road of the caravan park to his cabin. They found the body of the deceased lying face down on the ground nearby.

16. The "later" interview referred to in the statement of agreed facts was conducted some hours later when the accused was less affected by the alcohol he had consumed. Prior to its commencement he was examined by Dr Thomson who expressed the opinion that he was fit to be interviewed, but added the caveat that he was "at increased risk of making false confessions of guilt until he is more sober if he is put under pressure to do so". No complaint was made about the subsequent conduct of the interview, which appears to have been conducted with scrupulous fairness. Furthermore, it was not suggested that the accused had not answered the questions honestly and, so far as I could tell from the videotape, he seemed to have done his best to provide a candid account of what occurred. Unfortunately, however, the conversation was somewhat disjointed and the accused was clearly experiencing some difficulty in remembering the precise sequence of events and trying to make sense of what had occurred. He was obviously tired and his memory was presumably affected by his intoxication at the time of the incidents he was attempting to describe. Constable Walden, who conducted the interview, seemed understandably reluctant to interrupt the flow of the account and was obliged to go back over things with the accused in an attempt to fill in missing details.

17. The accused was again interviewed at the Belconnen Remand Centre on 5 January 2004, which was 9 days after the videotaped interview, and in the course of that interview said that a few memories had been "jogged". He said that he had been under such stress during the initial interview that he had not really explained that he had been defending himself. He thought that the glass mug had been dropped by the deceased after he had shown it to him in the moments leading up to the first altercation and that the deceased had said "Well, if you can't replace it at least pick it up". The accused added, that whilst he had some memory of this having occurred, he was not sure of it. He did remember that when he went to pick up the glass he got a kick in his arm and kick in the leg but he could not remember the order in which this occurred. He added, "and that" (presumably all of the events he had described) "happened interspersed in the exclaimed speech that I read" (presumably the relevant portion of the earlier interview). Mr Refshauge submitted that I should reject these statements as unreliable because the accused did not claim to have a clear memory of the events in question and they did not fit in with the account he had given to Constable Walden during the videotaped interview. I accept that these later recollections cannot be seamlessly integrated into the earlier account and think that the discrepancies serve to demonstrate the difficulty that the accused experienced, even after time for reflection, in accurately recalling exactly what happened.

18. As mentioned in the statement of agreed facts, Dr Judith McCreath, a forensic pathologist, subsequently performed an autopsy on the body of the deceased. She found that he had weighed 96 kilograms and measured 178 centimetres in length. She noted various signs of injury. The head and neck were congested and cyanosed. There were some areas of bruising and, in some instances abrasions on the forehead, chin, shoulders, back, arms and legs. In the area of bruising and abrasion on the lateral aspect of the left eyelid there were also some tiny cuts, about one to two millimetres long. There were petechial haemorrhages over the front of the neck, front of the chest, and in the middle of the back below the spinous process of the seventh cervical vertebrae. Some of the bruises were yellow, which she explained suggested that they had been caused at least 18 hours prior to death. She noted that the hyoid bone had been fractured but said that she thought that an injury of this kind would not necessarily indicate that a lot of force had been used. On the other hand, the petechial haemorrhages required the application of a heavy sustained force.

19. Subsequent toxicological analysis revealed that the deceased had a blood alcohol level of 0.199 g/100ml. Tetetrahydrocannabinolic acide (a metabolite of cannabis) was found in the blood and cannabinoids were also detected in the urine. Dr McCreath explained that in most people a blood alcohol level of between 0.18 and 0.25 may produce loss of critical judgment, impairment of perception, memory and comprehension, an increase in reaction time, reduced visual acuity and peripheral vision, impaired balance and drowsiness. These effects may mean that an intoxicated individual is more prone to involvement in confrontation and, once involved, may have an impaired ability to avoid or lessen the effect of any violent response. She was unable to express any opinion as to whether the deceased may have been further affected by cannabis because, as she explained, traces of cannabis may remain in the blood for several days and in the urine for up to a week. It is impossible to know what influence alcohol and perhaps cannabis may have had on his conduct during the hours prior to his death.

20. Dr McCreath explained that there were three mechanisms by which neck compression could cause death: compression of the airways could lead to loss of air to the lungs, compression of the blood vessels could lead to loss of oxygenation of the brain, and stimulation or compression of nerves in the neck could have an adverse effect on the heart. Dr McCreath said that compression of the neck often leads to a combination of these mechanisms, but it was impossible to say which mechanism or combination of mechanisms had caused death in the present case.

21. The Crown also called another forensic pathologist, Dr Johan Du Flou, who generally confirmed the evidence that had been given by Dr McCreath to the effect that neck compression can cause death by compression of the airways or blood vessels, or by stimulating the nerves to produce what he described as a vaso vagal reaction. Dr Du Flou also mentioned that there were various methods of producing neck compression. He proceeded to describe the "carotid sleeper", which results in the application of symmetrical force to the carotid arteries on both sides of the neck, the "choke or bar arm hold" which compresses the airway from front to back as well as the carotid arteries, and "manual strangulation" which may be applied in a number of ways. He said that it was not clear how the injuries found on the neck of the deceased had been inflicted. He initially suggested that manual strangulation was the most likely because of the extent of the external bruising and other injuries on the neck of the deceased. However, he subsequently conceded that some bruises may have been caused in an earlier incident on the night the deceased died and that the deceased may himself have contributed to the injuries by his struggling. Dr Du Flou ultimately said that he could not be "all that certain" which method had been used and that, if inexpertly applied, the others he had mentioned could have caused the injuries suffered by the deceased.

22. The accused did not give evidence. He was, of course, under no obligation to do so. His failure to give evidence cannot be treated as constituting any admission on his part or as an evidentiary factor capable of filling in gaps in the Crown case or lending weight to any of the evidence adduced by the Crown. As previously mentioned, he did answer questions put to him by police during the course of the interviews to which I have referred. I am obliged to consider those answers as providing a possible explanation for the events in question and to give such weight to them as seems appropriate, bearing in mind that he was not under oath when interviewed and that the Crown has not had an opportunity to cross-examine him.

23. Neither Mr Refshauge nor Mr Salmon submitted that any of the provisions of the Criminal Code 2002 (ACT) relating to self-induced intoxication were of any relevance to the issues that arose for determination in this case.

24. There can be no doubt that the actions of the accused caused the death of the deceased. It is conceivable that some of the injuries to the neck of the deceased were caused by his own attempts to break free from the headlock, but the conduct of the accused in maintaining that hold was clearly a real and effective cause of death.

25. However, the evidence does not prove that the accused intended to cause the death of the deceased or that he was reckless as to the probability that death would be caused by his actions.

26. The only direct evidence as to this issue consists of the statements made by the accused when questioned by police. As previously mentioned I am obliged to take into account his version of events given to the police as a possible explanation for his actions and, in any event, he seems to have answered the questions honestly. It is true that he was recounting events that had occurred some hours earlier when he was intoxicated, and that he was interviewed in circumstances in which he must have known that there was a real likelihood that he would be charged with murder or manslaughter. Nonetheless, there was nothing in his demeanour, as it appears from the videotape of the interview, to suggest that he was lying and several Crown witnesses confirmed his assertions that the deceased had earlier behaved in an aggressive and offensive manner towards him. The toxicology report also confirmed that at the time of death the deceased had a blood alcohol level four times the legal limit for drivers of motor vehicles, and Dr McCreath mentioned during her evidence that people with a blood alcohol content of such a level are more prone to involvement in confrontation. Furthermore, the injuries that Dr McCreath found that the deceased had suffered at, or shortly prior to his death were not inconsistent with the version of events given by the accused.

27. Whilst the accused was prepared to acknowledge the possibility that he may have responded to the deceased's threat to kill him by saying "We'll see who kills who" or words to that effect, I could not be satisfied that these words, even if actually spoken, demonstrated that the accused had then formed an intention to kill the deceased. They might well have reflected nothing more than drunken bluster intended to express defiance in the face of the initial threat that had been made.

28. During the course of the accused's subsequent interview, the question of what he thought might happen after he applied the headlock was canvassed on a number of occasions. When asked what he thought was going to happen when he applied that amount of force with his arm around his neck, the accused replied:

"I s'pose I was trying to slow him down, ah, and hopefully - hopefully give up. I could have judged, such the - would have been okay, would have been different, um, situation, now."

29. Constable Walden returned to this issue later in the interview:

"But what did you think was going to happen, when you had Daniel in a headlock?

I wasn't thinking, I was fighting.

H'mm.

It's ah, simple as that, you know.

From past experience . . .

He was fighting me, I was fighting back, simple as that.

From your past experience . . .

I've never had past experience of . . .

Being in it yourself?

. . . putting someone in a headlock like that.

But you have been put in a headlock yourself?

Yes.

Okay, and you're aware of the full effects it has on a person?

Well, yeah, it certainly took me over. Stopped me from moving around or doing . . .

So what did you think was going to happen to Daniel when you put him in a headlock?

Well, I just simply wished to slow him down."

30. The accused did concede that he had been angry with the deceased because of what he apparently regarded as a pattern of harassment and because of the threat accompanying the demand to replace the glass. Nonetheless, I can see no reason to doubt the truth of his claims that he had intended only to slow down the deceased and perhaps cause him to give in and abandon the assault. More fundamentally, it was incumbent upon the Crown to prove beyond reasonable doubt that the accused foresaw that if he maintained the headlock on the deceased he would probably cause the death of the deceased. There is no evidence that could, in my opinion, establish that contention and there is credible evidence to the contrary. Accordingly, even if no issue as to self-defence had been raised, the accused would have been entitled to be acquitted of murder.

31. The position in relation to manslaughter is somewhat different. For the reasons previously given, I have no doubt that the element of causation has been established. In addition, there is ample evidence to establish that the application of a headlock, save perhaps by a person with expertise in judo or some other martial art, is a dangerous act, and I have no doubt that it was dangerous for the accused to apply and maintain the headlock in the circumstances he described. The only real issue arises in relation to the third element of the offence. The hostile application of a headlock would normally constitute an assault. However, an act is not unlawful if committed in self-defence and this issue has been squarely raised.

32. During the course of the video tape interview the accused said:

"I was simply in a situation where he had, ah, he'd had a go at me, and if I didn't hold on to him like that, ah, he'd continue to go at me. It was quite - he had gotten pretty vicious. I thought, that there was no alternative but to do what I did.

Why is that?

In that situation, in the situation I was in, with everything that had occurred, um, I daresay, I daresay, um, that it would have recurred, that's the only - in that state of mind, and with all the events, its how we - unless you feel like getting done over yourself, the choice is either you do something or they'll do something."

33. Later in the interview Constable Walden returned to the claim of self defence:

"And what made you think that you had no choice . . .

Because he was physically into me.

When you say . . .

It was a fight, it was basically a fight. You know, we were wrestling, rather than a fist fight it was more of a wrestling fight. I simply, yeah, had little option but to defend me . . ."

34. The accused explained that the deceased had never pushed him physically before but that on this occasion he had been really "growling and violent". He thought he had tried to run outside and that the deceased had come running after him, though he added that it was hard to remember. He said that he managed to get from "the underdog to controlling him".

35. The accused also sustained some bruising and other injuries in the struggle.

36. Mr Refshauge accepted that the accused may have initially believed on reasonable grounds that it was necessary to apply the headlock and maintain it for some time in order to defend himself. He submitted, however, that even he did not foresee that maintaining the headlock would probably kill the deceased, there must have been a point at which he realised that sustained pressure was unnecessary. Mr Refshauge suggested that at one stage during the struggle the accused had not only had the deceased in a headlock, but had had a knee in his back and that the deceased had then been slowing down. Mr Refshauge went on to say there must have been a point at which the accused should have stopped but, instead, went too far in maintaining the headlock. He argued that self-defence could not absolve the accused from criminal responsibility in these circumstances, because the death of the deceased had been caused by the continued application of neck pressure after the need for such defence had passed.

37. I have carefully considered this argument but have concluded that it cannot be sustained. It is true, of course, that a person will be liable to conviction for a crime of violence if his or her response to an assault extends beyond self-defence and amounts to retaliation. However, in the present case the evidence does not establish that this occurred.

38. It has not been established that the accused had his knee in the back of the deceased immediately prior to death or, indeed, at any other time. Dr McCreath agreed that a bruise found on the back of the deceased was consistent with the application of blunt force, "possibly" from a knee, and both she and Dr Du Flou agreed that petechial haemorrhages on the deceased's chest could have been caused by the deceased having been held down by a knee in his back. Dr Du Flou also suggested that, during the accused's videotaped interview with the police, he had on a number of occasions indicated that "he was on his knees on top of the deceased." However, the passages to which Dr Du Flou referred did not contain any clear admission that the accused had one or both knees in the back of the deceased. The accused did say that he was crouched on his knees "above him", with the deceased face down on the ground, and in answer to subsequent questions reiterated that he had been on his knees. He did not say that his knees were on the back of the deceased rather than on the ground and such an allegation was never put to him. Viewed overall, the evidence suggests the possibility that at some stage one or both of the accused's knees may have been pressed against the back of the deceased but that has not been proved..

39. There had been an earlier wrestling incident between the two men on the night in question, and even the later incident seems to have involved an extended struggle in which the protagonists fell to the ground on at least one occasion. The later incident apparently erupted inside the caravan that had been occupied by the deceased, and spilled across the roadway after the accused's attempt to escape. The body of the deceased was found near the door of the accused's cabin. It also appears that at one stage the deceased gained the upper hand and rolled the accused over and onto his back, though he subsequently regained control. In this context, it is obviously impossible to deduce with any confidence, the point at which any particular bruise was sustained or the mechanism that caused it.

40. Furthermore, the evidence does not exclude the possibility that injuries were caused to the neck of the deceased at various times during the course of what was clearly a violent struggle, and that he ultimately died almost instantaneously due to a vaso-vagal reaction, which in turn lead to cardiac arrest. Even if the Crown had been able to establish that there was some additional period of time in which the accused unnecessarily maintained the headlock, it may have been impossible to exclude the possibility that the deceased was already dead or moribund.

41. More fundamentally, the accused repeatedly said that he had maintained the headlock in an attempt to control the deceased, and one can readily understand a headlock being used for that purpose. Indeed, Dr Azoury, who was called by the Crown to give expert evidence as to the dangers of headlocks, mentioned that they are routinely used by law enforcement officers in some parts of the United States. A person who has been able to take hold of an intoxicated assailant is not obliged to instantly release him if it is unsafe to do so. In such a situation viewed, as the High Court suggested in Zecevic, "in a practical manner and without undue nicety", the intended victim of the assault may be entitled to maintain the hold for the period that he or she reasonably believes necessary for the purpose of self defence. The period that may be reasonable will, of course, depend upon the circumstances, but it will usually extend until there is at least some indication that the assailant is no longer intent upon pursuing the assault or is unable to do so, whether by reason of his physical condition or the intervention of others. In the present case, I am unable to see any evidence that the accused maintained the headlock for a period longer than he believed was necessary for self-defence.

42. It was a tragedy that this young man's life should have been so brutally cut short. It appears that he had been very distressed by the death of his stepfather with whom he had apparently had a very close relationship. The accused had tried to comfort him earlier in the day before this terrible incident occurred. The deceased's heavy drinking and perhaps drug use on the day in question may have been related to his grief and he seems to have overreacted to the breakage of the beer mug because it had been a gift from his stepfather. Strong emotions and alcohol may be a dangerous cocktail and it appears that he lost his temper and attacked the accused. His death has undoubtedly brought further untold grief to his family and others who loved him.

43. However, there is no principle of law that, when one person dies as the result of a confrontation with another, the survivor must necessarily bear criminal responsibility for his or her death. On the contrary, the survivor remains entitled to the presumption of innocence in respect of any offence with which he is subsequently charged. Despite Mr Refshauge's best endeavours, the Crown has been unable to discharge the burden of proving that the accused was guilty of either murder or manslaughter. He has not been shown to have done anything more than defend himself by trying to restrain another man from assaulting him.

44. He must be acquitted of both offences.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 6 December 2005

Counsel for the Crown: Mr R Refshauge SC

Solicitor for the Crown: ACT Director of Public Prosecutions

Counsel for the accused: Mr B Salmon QC and Mr J Sabharwal

Solicitor for the accused: Legal Aid Office (ACT)

Date of hearing: 28 November - 1 December 2005

Date of judgment: 6 December 2005