R v Choe [2005] ACTSC 83 (2 September 2005)

Last Updated: 14 September 2005

R v YON SOO CHOE [2005] ACTSC 83 (2 September 2005)

CRIMINAL LAW - trial by judge alone - attempted murder - accused stabbed victim three times - The Queen v Collins [2004] ACTSC 48 - whether the accused intended to kill the victim - intention to inflict grievous bodily harm - what the accused intended at the time of the attack as to the nature of the act and its consequences - alleged memory loss - whether the conduct of the accused was voluntary - medical and psychiatric evidence - thyrotoxicosis - whether the accused was, at the time of the offence, suffering from thyrotoxicosis and effect of such - whether affected cognitive function of the accused.

Supreme Court Act 1933 (ACT), s 68C

Crimes Act 1900 (ACT), s 12(1), s 49

Criminal Code 2002 (ACT), s 8, s 10, s14, s 18, s 44

Fleming v The Queen (1998) 197 CLR 250

The Queen v Collins [2004] ACTSC 48 (18 June 2004)

DPP v Smith [1961] AC 290

R v Campbell [1997] 2 VR 585

R v Nuri [1990] VR 641

Cutter v The Queen (1997) 71 ALJR 638

Knight v The Queen (1992) 175 CLR 495

Lishman, WA, Organic Psychiatry: the psychological consequences of cerebral disorder (3^rd ed, 1998)

No. SCC 231 of 2004

Judge: Gray J

Supreme Court of the ACT

Date: 2 September 2005

IN THE SUPREME COURT OF THE )

) No. SCC 231 of 2004

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

YON SOO CHOE

ORDER

Judge: Gray J

Date: 2 September 2005

Place: Canberra

THE COURT FINDS:

1. In respect of the first count that Yon Soo Choe, on 3 June 2004 at Canberra in the Australian Capital Territory attempted to murder Jillian Clifford, that the accused is not guilty.

2. In respect of the third count that Yon Soo Choe, on 3 June 2004 intentionally inflicted grievous bodily harm on Jillian Clifford, that the accused is guilty.

1. On Thursday, 3 June 2004, at about 9.30 pm in the female toilets of the Canberra Casino, Canberra, Jillian Clifford, a tourist from New Zealand, was robbed at knife point and stabbed. The charges that Yon Soo Choe, a Korean national, now faces, arise from that event.

2. Yon Soo Choe (the accused) was arraigned before me on three charges:

...THAT on 3 June 2004 at Canberra in the Australian Capital Territory [he] attempted to murder Jillian Clifford.

AND FURTHER THAT on the 3 June 2004 at Canberra aforesaid [he] robbed Jillian Clifford of one Casino Canberra $25 money chip and one Casino Canberra $5 money chip and at the time of the robbery had with him an offensive weapon, namely a Swiss army style knife.

AND FURTHER THAT on the 3 June 2004 at Canberra aforesaid [he] intentionally inflicted grievous bodily harm on Jillian Clifford.

The accused pleaded not guilty to the first and third charges and guilty to the second charge.

3. On 6 April 2005, and before the court first allocated a date for trial, the accused elected to be tried by judge alone. Pursuant to s 68C of the Supreme Court Act 1933 (ACT), a judge who tries a criminal proceeding without a jury may make any finding that could have been made by a jury as to the guilt of an accused person and such finding has the same effect as a verdict of a jury. My judgment in this proceeding is to include the principles of law that I apply and the findings of fact upon which I rely. Further, I must explain the reasoning process linking those matters to justify the verdict to which I come (Fleming v The Queen (1998) 197 CLR 250).

General directions and principles

4. As far as the conduct of the trial is concerned, I direct myself in accordance with the law in relation to all of the matters which a jury would ordinarily be directed before retiring to consider its verdict. The accused is entitled to have a fair trial according to law. As the tribunal of fact, as well as the tribunal of law, it is my function to find the facts and to draw inferences from them as well as to apply the law to those proven facts. I must deliver my verdict according to the evidence. The burden of proving the charge lies wholly on the prosecution and no burden at all lies upon the accused. If the accused makes or points to an explanation which is consistent with innocence, the accused does not have to prove it. It is for the prosecution to disprove it or show that it is irrelevant, otherwise the prosecution will not have proved its case. The accused is presumed to be innocent until at the conclusion of the hearing the evidence establishes guilt. The standard of proof lies upon the prosecution to prove each and every element of the offence beyond reasonable doubt. Where, in this judgment, I make a finding of a particular fact, or speak of being satisfied of any matter, I reach that finding having been satisfied beyond reasonable doubt.

5. It is for the prosecution to prove each and every element of the charge beyond reasonable doubt before a verdict of guilty can be returned. If I am satisfied that there may be an explanation consistent with the innocence of the accused in respect of any charge, or I am unsure where the truth lies, then in those circumstances, I must find the charge has not been proved to the level of satisfaction required by the law and must acquit.

6. The offences charged arose out of the one incident and the accused's plea of guilty to the second charge means that there is no issue as to the identity of the offender. I was also informed at the outset by Mr Livingston, who appeared as counsel for the accused, that the accused had no recollection of the events leading to these charges. However, I am required to give separate consideration to the two charges before me before reaching a verdict on each.

Attempted murder

7. The offence of attempted murder is constituted by a combination of the definition of "murder" in s 12(1) of the Crimes Act 1900 (ACT) (the Crimes Act) and s 44 of the Criminal Code 2002 (ACT) (the Code). Section 12(1) of the Crimes Act provides:

(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.

8. As Weinberg J points out in The Queen v Collins [2004] ACTSC 48 (18 June 2004) at [8]:

Murder, as defined in the Territory, is a significantly narrower offence than in the other Australian States and in the Northern Territory. Importantly, the doctrine of constructive malice does not apply. Accordingly, if a person causes the death of another by an intentional act or omission, without lawful justification, the offence of murder will not be made out unless there is also an intention to kill, or alternatively reckless indifference to the probability that death will occur. Conduct that may amount to murder in the other States, and in the Northern Territory, will, at best, constitute manslaughter in the Australian Capital Territory.

9. The offence of murder in the Territory requires an actual intention to cause the death of a person and means that the offence is committed only if the offender intends by what is done to cause death (cf Cutter v The Queen (1997) 71 ALJR 638). Sections 8 and 10 of the Code apply s 44 of the Code to this offence. Section 44(1) of the Code provides that if a person attempts to commit an offence, the person commits the offence of attempting to commit that offence. There is a requirement in s 44(2) that a person must carry out conduct that is "more than merely preparatory" of the commission of the offence attempted and s 44(3) provides that question to be one of fact. Importantly, s 44(5) provides:

For the offence of attempting to commit an offence, intention and knowledge are fault elements for each physical element of the offence attempted.

Section 8(2) of the Code provides that interpreting a provision such as s 44 of the Code, the other provisions of the Act may be considered.

10. Section 18 of the Code provides:

(1) A person has intention in relation to conduct if the person means to engage in the conduct.

(2) A person has intention in relation to a result if the person means to bring it about or is aware that it will happen in the ordinary course of events.

(3) A person has intention in relation to a circumstance if the person believes that it exists or will exist.

11. Section 14 of the Code provides:

A physical element of an offence may be--

(a) conduct; or

(b) a result of conduct; or

(c) a circumstance in which conduct, or a result of conduct, happens.

12. Section 13 of the Code defines "conduct" as meaning an act, an omission to do an act or a state of affairs.

13. The physical elements of the offence of murder may be described as being an act or omission and that act or omission causing death. The act or omission can be regarded as "conduct" under s 14(a) of the Code. The causing of death can be said to be as "a result of conduct" under s 14(b). (See The Queen v Collins at [81] and [82].) It follows that to make out the offence of attempted murder, a person must intend to cause the death being the same essential element required for the completed crime of murder.

Intentional infliction of grievous bodily harm

14. In the event that the prosecution fails to establish beyond reasonable doubt that the accused had an intention to cause the death of Mrs Clifford, then it is necessary to consider whether the offence of intentional infliction of grievous bodily harm has been made out.

15. The intentional infliction of grievous bodily harm requires a willed and conscious act, an infliction by that act of grievous bodily harm to a person (grievous bodily harm merely meaning really serious bodily harm: DPP v Smith [1961] AC 290) and that the act causing that harm is done with the specific intent of causing that harm.

16. Further, s 49 of the Crimes Act provides that an alternative offence to this particular offence is that of reckless infliction of grievous bodily harm. If the other elements of the offence of infliction of grievous bodily harm are made out, save as to the specific intention, then, if the prosecution proves beyond reasonable doubt that there was a reckless infliction of that harm, that alternative offence will be made out. Section 20 of the Code defines what constitutes "recklessness" but that provision does not, at this stage, apply to this offence. I take the test of recklessness for the purposes of this offence to require foresight on the part of the accused of the probable consequences of the accused's actions and indifference on the accused's part as to whether or not those consequences occur (see R v Campbell [1997] 2 VR 585 at 593 citing R v Nuri [1990] VR 641 at 643).

The facts

17. No real challenge was made to the evidence given by the prosecution witnesses. The factual circumstances, which I find, result from my acceptance of the evidence of the witnesses called. Mr and Mrs Clifford were at the Canberra Casino on the evening of Thursday, 3 June 2004. They arrived at about 8.30 pm that evening. After playing for a time, both went to the toilets. The toilets at the venue are on opposite sides of a corridor off the gaming room with the male toilet to the left and the female to the right.

18. When Mrs Clifford entered the toilet she went into the cubicle to her right, being the second cubicle past the door. She locked the door to the cubicle. When she was in the process of unlocking it, she was confronted by the accused who pushed the door in towards her, standing an arm's length away with a knife pointed at her face. Mrs Clifford screamed when she first opened the door and the accused said "Don't scream. I just want your money.". She gave him the gaming chips that she had in her hand. The accused told her that it wasn't enough. She said, "I've got nothing else, I've got no pockets at all". He pushed her further back into the toilet and commenced to close the door with his left hand behind him. The accused said to her, "Don't scream, everything will be all right". As she saw her assailant attempting to close the toilet door behind him, she began screaming as much as she could and moved to go for the knife, a move she now describes as "silly", although I would have thought her reactions understandable in the circumstances that confronted her. She was stabbed in her chest area and she was stabbed twice more to her head where she sustained a wound above her left eye and another in her temple area just below the hairline. She was bleeding from the cut above her eye which affected her vision but her assailant had left and she heard a commotion outside the toilet. She found that she could not walk and, in fact, had sustained a broken leg in the attack.

19. The commotion that Mrs Clifford heard were the sounds of two security officers and her husband tackling her assailant. Mark Flett was the first security officer on the scene. He had heard the first scream which he described as "a light scream" but then, after a short time, he heard what he described as a distressed scream. He had been talking to the cleaner in the male toilets and had just come from there when he heard the scream. When he came into the toilets, the accused came at him with what appeared to be a knife and he struggled with him forcing him to drop it. The object was a Leatherman-style multifunctional implement, with plier grippers on one end and a 650 mm knife blade, which had been extended, on the other. Mr Clifford was waiting for his wife outside the toilets, heard a scream, which he said that he could not really figure out, but shortly afterwards, perhaps a minute or so, heard a "real scream". He headed towards the female toilets. The security guard had got there first. He went to help the security guard when a second security guard also entered the toilets and dragged Mr Clifford off thinking that he was fighting with the first security guard. That second security guard, Eugene Lovric, then assisted to subdue the accused.

20. There was one other person in the female toilets at the time. That was Mrs Sally Pearson, who at the time was eight months pregnant. She was in the cubicle next to Mrs Clifford and she heard what sounded to her like an Asian man come in and say "Give me all the money". She said before that time she heard screaming. She cannot remember whether he said those words more than once. She heard a lot of noise and a lot of screaming. Her evidence supports generally that of Mrs Clifford but I accept as the more accurate account of what took place, the evidence given by Mrs Clifford.

21. After being subdued, the accused was taken, still resisting, by three security officers to the Security Office Interview Room. There he was held by security officers on the floor until ambulance and police officers attended. Mr Wilkins, an ambulance officer who attended, made observations of him. Although the accused was generally motionless and unresponsive, Mr Wilkins was of the view that he was not unconscious or catatonic. Mr Wilkins described the tests that he did to ascertain the state of the accused's consciousness including a sternum rub. Similarly, Ms Petro, an intensive care paramedic with the ACT Ambulance Services, was of the view that the accused, though not responding to questions or appearing to make voluntary movements, was conscious and not catatonic. As I understand the prosecution case, the relevance of these observations relates to whatever might transpire to be the relevance of a catatonic state or their relevance to a possible diagnosis that the accused was suffering from thyrotoxicosis at the time. There was also, perhaps, the suggestion that Mr Choe was in some way feigning his condition and what relevance that might have. As it turns out on the expert medical evidence that was adduced before me, I do not think that this evidence has the importance to the prosecution case that may have at first been attributed to it.

22. As part of its case, the prosecution tendered four VHS-format videotapes. Taken together, the tapes comprise over eight hours of video surveillance from the Canberra Casino, being a compilation of footage shot from security cameras at different vantage points within and outside the Casino on 3 June 2004. The cameras used for the present purposes depict (primarily) the gaming floor, the particular gaming tables, and the entrance to the foyer of the male and female toilets. The footage has been edited in a particular way to depict the movements of the accused for the duration of the time he spent at the Casino on 3 June 2004, having arrived shortly before 1.30 pm. A 24-hour clock on the surveillance videos provides some indication as to the time of the alleged incident, although it was conceded by the prosecution that the multiple security cameras were not precisely synchronised.

23. In his evidence before me, Mr Choe accepted that he was the person depicted in these tapes. The video surveillance cameras do not depict the alleged incident, it having taken place inside the women's toilets at the Casino. Nor does any of the footage depict sound. In the circumstances of this case, evidence of both the attack by the accused upon Jillian Clifford and her prior and subsequent screams is that given by the particular witnesses present in the women's toilets at the particular time. Evidence of the accused's activities is to be assessed in light of the evidence given by those witnesses who were employees of the Casino on 3 June 2004 and with whom the accused had contact. The videotapes lend support to that evidence but do not provide a basis for findings independent of the oral evidence given before me.

24. In the period after 9.00 pm, Mr Choe was playing the Money Wheel device and Ms Mallinson, who was operating that wheel, gave evidence of his placing of long-shot bets and of losing those bets over this time. She said that he was not causing any trouble and described him as talking the whole time and that he appeared agitated at times. He was speaking in English and she could understand what he was saying other than some periods where he appeared to be mumbling to himself. She observed him betting when he was not allowed to bet and he told her that he had been drinking which he said helped him to relax. Ms Mallinson caused him to be brought to the attention of Ms Katic, who was employed as an Inspector for table security purposes. Ms Katic had earlier observed Mr Choe playing at the poker table for a 20 minute period before 8.00 pm. She referred to him speaking in English with an accent which was "a little bit broken". He did not appear intoxicated to her and she was not concerned about his behaviour. She spoke to him about some food that he had brought and placed on the gaming table and he complied with that direction placing the food on a little table near him. She also spoke of a conversation where Mr Choe complained about being kicked at a time when he was at the poker table. She described him as being agitated about this. At a stage before she was relieved at 9.20 pm, Mr Choe commented to her after he had knocked some chips over, "I am sorry, I am drunk. I need a drink though to play", or words to that effect. She did not believe that he was drunk and that he "seemed okay". She was asked by the Pit boss to keep an eye on him and she did so and continued to regard him as "okay". Ms Logan, the croupier at an adjoining table, also referred to the incident where Mr Choe was upset about the fact that someone had kicked him at the poker table which he had left. He was speaking in English and he was speaking loudly. Apart from that incident, and upon the limited observation that she made of him at the adjoining money wheel table, he seemed to her to be calm while he was playing.

25. At about the time of the incident, the security tapes show Mr and Mrs Clifford entering the corridor where the toilets are. The time recorded on the video shows the time as 21.33.05. At 21.33.33, Mrs Pearson is shown entering the corridor. She is followed by the accused at the recorded time of 21.33.47. Mr Clifford is shown as leaving the toilet area at 21.34.29. Mr Flett, the security guard, is shown as entering at 21.35.08. The incident in the toilet involving Mrs Clifford occurred within the space of less than a minute and a half.

Evidence in the defence case

26. Mr Choe gave evidence (through an interpreter) and his case relied upon that evidence together with the evidence of Dr John Saboisky, a consultant psychiatrist. What was put in issue was the evidence of Mr Choe's mental state at the time of the commission of these offences particularly with respect to voluntariness and intent. In his evidence, Mr Choe denied that he had been in the Belconnen Remand Centre since 4 June 2004 and that, as far as he was concerned, he had been there for two weeks, that he could not remember the events in the Canberra Casino on 3 June 2004, he remembered that two weeks ago he went to a casino and that he could not remember what had happened at that time. His answer in response to what he could remember about going to the Casino was, "If I go, I play game and I drink, that's only I do.". He said that the last thing that he remembered before going to the Belconnen Remand Centre was drinking alcohol in a Chinese restaurant. Mr Choe has obvious difficulties in communication and expression. He required an interpreter for the whole of the trial and gave his evidence through an interpreter. During the course of the trial he demonstrated difficulty with his grasp of English. He can, however, as he demonstrated near the end of his cross-examination, appreciate and respond appropriately to questions addressed to him in English. I do not regard this as a sign of deviousness on Mr Choe's part, but rather a genuine communication difficulty. I can understand how, on a social level, he could make the responses attributed to him by the various prosecution witnesses whilst at the same time having the difficulties that he demonstrated with the English language. Whether or not his lack of recollection is as total as he maintains also turns out to not really be an issue as I am satisfied that he has an appreciation of the effect and consequences of the actions which constituted the offences and his evidence gives me no reason to think that he had any different appreciation at the relevant time.

The medical and psychiatric evidence

27. The other witness called by the defence was Dr Saboisky and his evidence dealt with the possible relevance of psychotic illness and thyrotoxicosis to Mr Choe's case. Dr Saboisky first saw Mr Choe at the Belconnen Remand Centre on 14 July 2004 where, despite it being a difficult interview because of his poor English, Dr Saboisky came to the view then that he was suffering from a psychotic illness which probably had some organic basis to it. Dr Saboisky's conclusions on that occasion were qualified by the need to establish what, if any, organic brain problem existed in the past and the need for a full medical workup.

28. Mr Choe was subsequently diagnosed, on about the 29 July 2004, as suffering from thyrotoxicosis and received treatment for it. On 16 April 2005, Dr Saboisky was asked to assess Mr Choe's fitness to plead. By that stage he had much of Mr Choe's previous medical history which included admission to St Vincent's Hospital for thyrotoxicosis in August 2001 as well as a previous history of a sub-arachnoid haemorrhage which had involved surgery to clip an aneurysm. Dr Saboisky noted a psychological assessment report in January 2005 indicating marked memory impairment. He had viewed the videos and had before him the statements and committal evidence of the Casino employees. As a consequence, he reported:

I note an alcohol level which in my view would not generally cause this behaviour in an average person. The fact that he was diagnosed with thyrotoxicosis at Belconnen Remand Centre and had, in fact, suffered from it for five years previously suggests that it is entirely probable that at the time of the events he was thyrotoxic and that may explain his agitated state. Thyrotoxicosis can lead to substantial psychiatric impairment and I think the evidence leads one to the view that at the time of committing the offence he was agitated, impulsive, disinhibited but not obviously psychotic. He was mumbling to himself and alleged to staff that he had been kicked which may have been a form of somatic delusion but there is no overwhelming evidence that his behaviour was as a result of a delusion or a hallucination. I believe therefore that he knew what he was doing at the time and that he knew that it was wrong.

29. In his evidence before me, Dr Saboisky elaborated on the effects of thyrotoxicosis by reference to a passage from a standard text book, Organic Psychiatry: the psychological consequences of cerebral disorder (3^rd ed, 1998) by William Lishman. It was to this effect:

Psychological disturbance in some degree is universal with thyroid overactivity. The patient becomes restless, overactive and irritable, sometimes with hyperacuity of perception and over-reaction to noise. Heightened tension leads to impatience and intolerance of frustration, and there may be emotional lability with unreasonable or histrionic behaviour. Fluctuating depression is occasionally a prominent feature, though unaccompanied by retardation. In very rare instances there may be marked apathy and inertia ("apathetic hyperthyroidism").

30. Although Dr Saboisky made reference in his report of 3 May 2005 to hyperthyroidism and criminal behaviour, he took the view that there was no clear cut relationship between the two, although he referred to some articles as a basis of there being an association. However, those articles do not permit any useful conclusions to be drawn nor do they deal at all with cognitive functioning. They do not appear to have had any effect on Dr Saboisky's ultimate conclusions.

31. In Dr Saboisky's final report of 10 August 2005, he said:

I felt that he was definitely psychotic when I saw him at the Belconnen Remand Centre on 14.7.2004 but it is impossible to determine that at the time of the offence he was acting as a result of a psychotic process. By this I mean there is no evidence that he was acting on a command hallucination or a particular delusion.

I consider this to be Dr Saboisky's ultimate view and I am not able to draw from it the possible existence of any psychotic illness suffered by Mr Choe at the relevant time.

32. In his evidence before me, Dr Saboisky said that when he had reported that Mr Choe was probably suffering from thyrotoxicosis, he did not have the information, that in August 2001, Mr Choe had been treated with radioactive iodine. That circumstance meant to him that control of Mr Choe's condition was not dependant on him taking drugs but would result in a complete ablation of the thyroid. Even if such treatment had an effect that lasted for about three years, I take it that his evidence is that it could not be predicted when the condition might recur.

33. Dr Saboisky's view as to the effect of the existence of a thyrotoxic condition at the time of the events the subject of these charges, was apparently made known to the prosecution and, in its case, the prosecution had called Professor Dennis Wilson, the Clinical Director of Endocrinology at the Canberra Hospital to comment on this aspect. Professor Wilson is also an Associate Professor in medicine at the Australian National University and a Clinical Associate Professor at the University of Sydney. He has extensive experience in his field of endocrinology and I accept him as an expert in that field. On that topic where his views conflict (which I do not think that they really do) with those of Dr Saboisky, I would prefer Professor Wilson. From Professor Wilson's examination of the various hospital notes from St Vincent's Hospital, Sydney from 2000 and 2001, Pambula Hospital, April 2004 and Canberra Hospital in June 2004, Professor Wilson concluded that Mr Choe had severe thyrotoxicosis associated with Grave's disease in mid-2000. As a result of treatment with radioiodine, that condition was reversed but the condition was again detected and as a result of the measurement of his thyroid hormone levels on 29 June, 2004 Professor Wilson considered that compatible with a diagnosis of thyrotoxicosis. Professor Wilson made the point in his evidence that there is no evidence as far as he was concerned which would support a conclusion one way or the other as to Mr Choe's condition in this regard at the time of the incident on 3 June 2004. What he said in his report of 19 August 2005 was:

In view of the above there is no doubt that this man has Grave's disease. Whether he was thyrotoxic at the time of the alleged offences in June 2004 cannot definitely be stated because there is no clinical record or biochemical result at that time, which addresses the issue. He certainly was thyrotoxic one month later but as was demonstrated in November and December 2004, he can swing from underactive thyroid function to severe overactive thyroid function in a period of four weeks. This is much quicker than is usually seen but raises the possibility that he may not have been thyrotoxic in June 2004.

34. As I say, in his evidence, Professor Wilson explained that that last sentence was to be understood in terms that the converse could be applied to it and that there was "no evidence one way or the other". Nevertheless, because his evidence admits of the converse possibility and because of the pre-existing condition of Graves disease, I am prepared to accept that at the time of the incident the subject of these charges, there was a reasonable possibility that Mr Choe was suffering from some degree of thyrotoxicosis.

35. In his report of 10 August 2005, Dr Saboisky took this view of thyrotoxicosis:

Thyrotoxicosis is a metabolic disorder and is commonly associated with disturbed personality functioning. Sufferers are often restless, overactive and irritable. Heightened tension can lead to impatience and intolerance of frustration. Impulsivity can occur and lead to behaviours with negative personal and social consequences. As with any significant cognitive disturbance the ability to anticipate the consequences of an act can be impaired.

In response to a question directed to Mr Choe's cognitive functioning having regard to what had happened, and presumably with the background of what he had said in his reports, Dr Saboisky responded:

Well it seemed like a deliberate act because on the video footage you see him sitting and then going somewhere and I presume he goes straight into the ladies toilets and from what I've been told he demanded money and was carrying a knife and when certain monies were given to him, chips I think, a couple of chips, he demanded more and when that wasn't forthcoming he stabbed her a couple of times. That's my understanding of what happened. And then she resisted or screamed and then he left or tried to leave the cubicle. So it's very hard to get into his mind retrospectively but it seems to me like that wasn't the result of any command hallucination, that he wasn't suffering from some [delusion] about her, he went there to gain money from her and he did it in a way which, you know, to maximise the outcome. It may have been a very impulsive act of course, and he may not have anticipated the consequences.

He explained that the anticipation of consequences to which he had referred as "not a very smart move to try to rob somebody at a Casino where there [are] cameras everywhere and where there is security everywhere". There is no suggestion in Dr Saboisky's evidence that the ability to appreciate the immediate consequences of the act was affected in any way. As to the question of Mr Choe's intention to inflict upon Mrs Clifford very serious injury, Dr Saboisky responded:

Well clearly he carried a knife with him with the intention of threatening her so that she would give him the money. I don't know, I mean, I think the only conclusions I can draw are common sense conclusions that anyone can draw, that without being in his - knowing exactly what was going on in his mind, all one can reasonably say is that he wanted to rob her of money for personal gain and was carrying the knife for the intention of getting her to relieve herself of that money and for no other purpose.

36. On the question of Mr Choe's cognitive functioning, the following question and answer seem to encapsulate Professor Wilson's view:

Somebody who was thyrotoxic, you said they could be agitated, they could be more irritable, but would they still basically know what they're doing?---They ought to know what they're doing. They may not give much thought to it at the time.

37. Neither view provides a basis for a reasonable possibility that by reason of thyrotoxicosis, Mr Choe was not able to form the specific intent required. The overall effect of this evidence is that, even if at the time Mr Choe was suffering from thyrotoxicosis, the effect of that condition does not basically affect the voluntary nature of the acts engaged in or the intent that accompanies the act. In determining Mr Choe's intent, I should accordingly draw a common sense inference from the factual circumstances of the assault.

Catatonia and memory loss

38. The two medical experts did not rely upon the possible catatonic state of Mr Choe after he was subdued, or the fact that he has always professed no memory of the events as matters which affected their opinions. Although Dr Saboisky, in particular, was prepared to assume that after arrest Mr Choe went into a catatonic state, he discounted any major psychiatric disorder such as schizophrenia or melancholic depression which such a state would indicate. He also believed that Mr Choe's amnesia was without a genuine basis and that it was not an indicator of a schizophrenic illness. The evidence overall does not suggest that Mr Choe's actions at the relevant time were not his willed and voluntary acts, nor that he was incapable of forming an intention to commit those acts.

The question of intention

39. In respect of the first and third counts on the indictment before me, the only issue is whether I can be satisfied beyond reasonable doubt that, at the time Mr Choe acted, he had the specific intention required to make out either offence. In the case of the third count, I may also find a lesser charge made out if, without the specific intent, Mr Choe recklessly inflicted grievous bodily harm so as to satisfy the test of recklessness to which I have previously referred.

Attempted murder

40. The specific intent required for the first count is, as I have said, the intent to kill. It is this ingredient that must be proved beyond reasonable doubt. Mr Choe's actions in stabbing Mrs Clifford three times, once to the chest area, twice to the head, must be viewed in light of the actions of Mrs Clifford in attempting to seize the knife and Mr Choe desisting in the attack after striking three blows in quick succession. It is significant that upon the security guard, Mr Flett, opening the door to the toilet area, Mr Choe was coming at him. It seems to me that this circumstance gives rise to a rational inference that there was a possibility that Mr Choe did not intend to kill Mrs Clifford (cf Knight v The Queen (1992) 175 CLR 495 at 502-503). Accordingly, I am not satisfied beyond reasonable doubt that an element of the offence of attempted murder has been proved. I find the accused not guilty on this count.

Intention to inflict grievous bodily harm

41. The harm sustained by Mrs Clifford was the knife wounds to her chest area and to her head. She also sustained a broken leg. Whilst the injury to her leg may not have been able to be foreseen, the risk of serious harm from the wounding was obvious. In fact, the wounds to the head have resulted in permanent scarring. I am satisfied that the use of a knife of the type that was used could have resulted in really serious harm. I find proved beyond reasonable doubt that Mr Choe used the knife to inflict wounds on Mrs Clifford and that that infliction of harm amounted to grievous bodily harm.

42. Although I am not satisfied that Mr Choe intended to kill Mrs Clifford for the reasons that I have given, an important aspect of the circumstances is the nature of the blows that caused Mrs Clifford's injuries. They were blows inflicted by knife capable of causing serious injury. Each of the blows was delivered with force. Mrs Clifford's evidence was:

So what did you do?---I decided to scream as much as I could and fight and so I went for the knife.

All right. And what did he do when you went for the knife?---Pulled his right hand back and just stabbed it straight into my chest.

Now firstly, did you make any contact with him? Did you grapple with his arm for the knife before this?---No, I went to actually go, which was silly, for the actual knife and [the] blade got my hand.

All right. And did he pull the knife away from you when you went for it?---He pulled it away, back and straight into my chest.

What sort of force did he use to put it into your chest?---There was quite a bit of force because I could feel his hand against my chest.

Then what happened?---Then he just pulled it out and put it up onto my temple and then to my head.

So were there two stab wounds to your head?---Yes, there were.

Now firstly in relation to the one to your temple, what sort of force was there there?---They were both lots of force, the three of them.

43. There is nothing in the evidence given by either Dr Saboisky or Professor Wilson which causes me to doubt that the proper inference to be drawn from all the circumstances is that Mr Choe, by his actions in stabbing with force on three occasions, intended to inflict grievous bodily harm upon Mrs Clifford. I find the charge in the third count on the indictment proved beyond reasonable doubt. That conclusion makes it unnecessary to consider the alternative offence of reckless infliction of grievous bodily harm.

The verdict

44. On the first count that Yon Soo Choe, on 3 June 2004 at Canberra in the Australian Capital Territory attempted to murder Jillian Clifford, I find the accused not guilty.

45. On the third count that Yon Soo Choe, on 3 June 2004 intentionally inflicted grievous bodily harm on Jillian Clifford, I find the accused guilty.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Associate:

Date: 2 September 2005

Counsel for the prosecution: Mrs J Whitbread

Solicitor for the prosecution: Director of Public Prosecutions (ACT)

Counsel for the accused: Mr R Livingston

Solicitor for the accused: Legal Aid Office (ACT)

Dates of hearing: 22-24, 26 August 2005

Date of judgment: 2 September 2005