R v Porritt [2008] ACTSC 33 (22 April 2008)

Last Updated: 7 May 2008

R v GLEN MALCOLM PORRITT

[2008] ACTSC 33 (22 April 2008)

CRIMINAL LAW - trial by judge alone - murder - mens rea - when a verdict of guilty of manslaughter (unlawful homicide) may be returned - unlawful and dangerous act - criminal negligence

Supreme Court Act 1933 (ACT), s 68C

Crimes Act 1900 (ACT), ss 12, 13, 14, 15

Brown v R [1913] HCA 70; (1913) 17 CLR 570

Packett v R [1937] HCA 53; (1937) 58 CLR 190

Gammage v R [1969] HCA 68; (1969) 122 CLR 444

Wilson v R [1992] HCA 31; (1992) 174 CLR 313

Zecevic v Director of Public Prosecutions (Victoria) [1987] HCA 26; (1987) 162 CLR 645

R v Lavender [2005] HCA 37; (2005) 222 CLR 67

No. SCC 56 of 2007

Judge: Higgins CJ

Supreme Court of the ACT

Date: 22 April 2008

IN THE SUPREME COURT OF THE )

) No. SCC 56 of 2007

AUSTRALIAN CAPITAL TERRITORY )

R

v

GLEN MALCOLM PORRITT

ORDER

Judge: Higgins CJ

Date: 22 April 2008

Place: Canberra

THE COURT ORDERS THAT:

1. The accused is not guilty of the offence charged that on 21 December 2005 at Canberra in the Australian Capital Territory he murdered Nanette Mary Porritt but is guilty of the unlawful homicide of the said Nanette Mary Porritt at the time and place aforesaid.

1. The accused, Glen Malcolm Porritt, now aged 23 years, stood trial before me, between 4 February 2008 and 12 February 2008, on an indictment containing one count, namely, that he:

... on ... 21 December 2005 at Canberra in the Australian Capital Territory ... murdered Nanette Mary Porritt.

2. Upon his arraignment the accused has pleaded not guilty. He elected for trial by judge alone thus engaging the provisions of s 68C of the Supreme Court Act 1933 (ACT). That section provides:

(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 a 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. The offence alleged engages s 12 of the Crimes Act 1900 (ACT) (the Crimes Act). That section 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.

(2) A person who commits murder is guilty of an offence punishable, on conviction, by imprisonment for life.

4. By virtue of s 13 of the Crimes Act, if the accused would otherwise be guilty of murder, but it appears that the act or omission causing death occurred under provocation then a verdict of guilty of manslaughter may be returned.

5. Mr Harris SC, for the accused, does not submit that such a finding could be made in this case.

6. By s 14 of the Crimes Act, if an accused person is shown, at the time the act or omission causing death occurred, to have been suffering from an abnormality of mind that substantially impaired his or her mental responsibility for the act or omission then a verdict of manslaughter may be returned.

7. In this case, Mr Harris submitted that, although the accused did suffer from a form of Asperger's syndrome, it did not alter his mental responsibility, if otherwise he was guilty of murder, but was relevant for collateral purposes.

8. It is not, in this Territory, murder if a person without either of the intents prescribed by s 12 of the Crimes Act kills another as a result of intentionally or recklessly inflicting grievous bodily harm on that person.

9. Section 15 defines the offence of manslaughter in the following terms:

(1) Except if a law expressly provides otherwise, an unlawful homicide that is not, under section 12, murder shall be taken to be manslaughter.

10. Manslaughter is not further defined. It is, and remains, a common law offence. It is, when murder is charged, a lesser included offence (see Brown v R [1913] HCA 70; (1913) 17 CLR 570; Packett v R [1937] HCA 53; (1937) 58 CLR 190; Gammage v R [1969] HCA 68; (1969) 122 CLR 444).

11. Apart from cases of provocation and diminished responsibility, manslaughter may be committed if, though the relevant intent for murder is not shown to be present, the accused has committed an unlawful and dangerous act in such circumstances that a reasonable person in the position of the accused would have realised that he or she was exposing another to an appreciable risk of serious injury. A risk of some harm falling short of serious injury is insufficient: see Wilson v R [1992] HCA 31; (1992) 174 CLR 313.

12. A second basis for manslaughter was that of excessive self-defence. That is no longer to be regarded as a separate head. In truth, after Zecevic v Director of Public Prosecutions (Victoria) [1987] HCA 26; (1987) 162 CLR 645, the issue for self defence is whether the accused believed on reasonable grounds that it was necessary for him or her to use force to avert a threat of death or of proportionately serious injury. If that defence fails, then the issue remains whether the accused intended to kill or was reckless as to the probability of death. If neither of those intents was present, then the use of the force, not being excused, will be manslaughter, assuming the accused was aware of an appreciable risk of serious injury. If one or other such intent was present than the verdict would be murder. A person cannot, in effect, take advantage of an occasion allowing force in self-defence to kill another when to go so far is known by the user of the force to be unnecessary. On each of these issues an adverse finding to the accused can only be made if the court is satisfied beyond reasonable doubt that it should be so made.

13. A third basis is criminal negligence. That category of manslaughter was considered by the High Court in R v Lavender [2005] HCA 37; (2005) 222 CLR 67. At issue was the mental state required for involuntary manslaughter by criminal negligence.

14. Gleeson CJ, McHugh, Gummow and Hayne JJ referred generally to involuntary manslaughter in the following terms, at [2]:

As this Court held in Wilson v The Queen, there are two categories of involuntary manslaughter at common law: manslaughter by an unlawful and dangerous act carrying with it an appreciable risk of serious injury; and manslaughter by criminal negligence. Involuntary manslaughter is so called because, unlike murder, it involves neither intent to cause death or grievous bodily harm to the victim, nor the other mental elements necessary for murder. In cases of voluntary manslaughter, on the other hand, the elements of murder are present, but the culpability of the offender's conduct is reduced by reason of provocation, or substantial impairment by abnormality of mind.

15. I observe that, for this Territory, intent to cause, or reckless infliction of, grievous bodily harm is insufficient for murder. An act committed with intent to cause grievous bodily harm, short of recklessness as to the probability of death resulting, will, nevertheless, be capable of constituting manslaughter, as would death resulting from the reckless infliction of grievous bodily harm. Otherwise, the effect of the provisions of the Crimes Act are not materially different in this Territory from those considered in R v Lavender (supra). In R v Lavender, the respondent had pursued several boys trespassing on a mine site to chase them away. He was driving a front end loader with gravely obscured vision at the time. He ran over and killed one of the boys. He had not intended to strike any of them with his vehicle. It was, however, objectively, a highly dangerous course of action. Their Honours noted, at [40]:

... The decision in Wilson v The Queen establishes that this is a form of manslaughter which exists because of the importance which the law attaches to human life. It turns upon an objective test. The only relevant intent of the accused is an intent to do the act that was unlawful and dangerous and that inadvertently caused death.

16. In relation to the second category, the Court addressed the issue as to whether the alleged offender needed to appreciate that his conduct was unsafe, and concluded that "the law would be deficient if grossly negligent conduct causing death could not bring criminal punishment unless the accused foresaw the danger" (at [60]):

Counsel for the respondent in this Court attempted to persuade the Court that Nydam v The Queen should not be followed, and that manslaughter by criminal negligence requires a subjective appreciation by the offender that the conduct engaged in is unsafe. This would bring this form of involuntary manslaughter into disconformity with the other form of involuntary manslaughter dealt with in Wilson v The Queen. Furthermore, it is erroneous in principle. This branch of the criminal law reflects the value placed by the law upon human life. Giles JA was right to say, in the present case, that "appreciation of risk is not necessary for a sufficiently great falling short of the objective standard of care, and ... the law would be deficient if grossly negligent conduct causing death could not bring criminal punishment unless the accused foresaw the danger".

17. The issue is whether the conduct of the accused, viewed objectively, constituted a "sufficiently great falling short of the objective standard of care" to warrant a finding of manslaughter. That must be judged against the facts and circumstances known to the accused at the time but the opinion of the accused, if there be such, that his conduct was not grossly negligent is irrelevant. In other words, it suffices for manslaughter that the offender, though not intending death or even serious bodily injury, was guilty of aggravated negligence which caused death.

18. In this case much of the evidence was tendered by consent in the form of statements, photographs and video cassettes. Much of it, also, was directed towards establishing that it was the accused who inflicted the fatal injuries upon the deceased. That was, at the outset of the trial, conceded.

19. Nevertheless, the Crown called oral evidence from a number of witnesses. In response the accused gave evidence. I remind myself that he was not obliged to do so and I bear that in mind in assessing the weight to be accorded to that evidence. I also bear in mind that the accused in giving evidence, assumed no burden to establish anything.

20. It is convenient to commence with the relationship evidence which includes the finding of the body of the deceased.

21. I will note first the evidence of Dr Prame Chopra, a family friend. He recounted a major argument over four years before, between the accused and the deceased. The accused had been arrested and taken to Quamby as a result. The family dysfunction he perceived to be a result of the deceased's unreasonably domineering and controlling approach to discipline. She was not a person ever to back down. He was also aware that the accused had intended, as his parents were aware, to sue them for injury he alleged his upbringing had caused. Notwithstanding her small size the deceased was, Dr Chopra agreed, "quite intimidating and forceful".

22. Ms Jeanette Silva was Dr Chopra's spouse. She gave similar evidence.

23. Amy, Jenna and Keith Porritt gave more detailed evidence concerning the relationship of the accused with the deceased.

24. Ms Amy Porritt, the younger of the accused's two younger sisters, recounted the incident, referred to above, where the deceased had locked the three children out of the house. It had started with Amy having been instructed by the deceased to clean up a mess. This was after an incident where the deceased, the night before, had rubbed food scraps into Amy's face and hair, causing her nose to bleed. The accused intervened on Amy's behalf. She attempted to hide from the deceased. Her older sister Jenna attempted also to protect her, leading to both of them hiding in an outside store room. They were all then locked out of the house. They agreed that the accused would try to get them back inside lest they be locked out overnight.

25. Somehow in the attempt, a skylight was broken, the police were called and the accused charged with property damage and assault. He was then aged 17.

26. The accused made an affidavit in those proceedings. In it he recounted the above incident.

27. He explained that he had, before the three of them were locked out of the house, pushed the deceased because she had, in the course of the incident, approached him, apparently threateningly, with a ceramic plate.

28. He complained in the affidavit that the deceased had been physically abusive, particularly to Amy.

29. Amy confirmed the truth of that document and also the complaints made by the accused about his treatment, though she did not support his intention to sue their parents for damages for mistreatment.

30. The document of complaint made by the accused detailed his complaints of neglect and abuse. It also set out the basis for his proposed claim as he saw it. I set it out in full, though without supporting statements:

My name is Glen Porritt. I was born on the 7^th of June 1984. I have two younger sisters, Jenna born on the 29^th of October 1986 and Amy born on the 23^rd of August 1989.

Due to child abuse inflicted by my parents during my adolesce [sic] I have permanent, disfiguring acne scars across my face, neck, back and shoulders. My right collar bone was broken and now has angular deformity, which causes discomfort and I fear may develop into arthritis. I require reconstructive surgery on my right big toe due to an ingrown toe nail, which remained untreated for many years.

My parents caused these problems primarily through refusing to take me to the doctor, confiscating a prescription my doctor had given me for my acne and locking the Medicare card in their bed room.

My parents also contributed to the cause of my acne and broken collar bone. My parents refused to cook for my sister Jenna, my self and on occasions my youngest sister Amy. They locked food up in a storage room under the house so that my sisters and I could not eat it. There was some food left in the kitchen however not enough to maintain a balanced diet. Consequently I suffered from chest pains and began blacking out. In later 2002 I blacked out at school while playing soccer and broke my collar bone. (Emphasis omitted)

31. On the day the deceased died, in the morning, the accused had come to the family home. Amy was in the swimming pool with a friend. The accused had just graduated from university. He returned a book to Amy and left. I accept her evidence as to that latter fact as accurate. She would, I think, have noticed if the accused had stayed. It was faintly suggested by the prosecution that he might have lurked about to ambush the deceased. There is no evidence that supports that hypothesis.

32. The deceased arrived home at about 4.00 pm. She drove Amy to work. About 6.30 pm Amy received a phone call and went home to find police and ambulance in attendance. The deceased obviously had been killed in the meantime.

33. Jenna Porritt painted a similar picture of home life before the accused left home in 2004. It is clear that the deceased was the disciplinarian rather than Mr Keith Porritt, though he would support the deceased in her endeavours to impose discipline. The deceased was, Jenna said, unrelenting and would escalate any dispute until the other party backed down or, as with the lock-out of the children, the other party was defeated. Jenna said:

... she would try varied means of controlling her children, one of which was to put them in a circumstance where they couldn't possibly hold out for an extended period of time, for example keeping them outside of the house on the occasion you were discussing without footwear or wallets or keys or perhaps refusing to put food in the kitchen for her children for days, weeks or months on end until they apologised and resolved the argument.

34. I will refer to the MSN chat communications later between Jenna and the accused, but Jenna, who was the other party to them, dismissed their content as "not meant to be taken seriously".

35. She had noticed some instances of bizarre behaviour on the part of the accused, whilst he was living at home after the deceased had been killed. For example, though calm and relaxed one minute, "he would suddenly spin around and start swearing at someone who was not there".

36. Mr Keith Porritt, the accused's father, also gave evidence. He had discovered the deceased lying in the bedroom. He had, at Jenna's urging, refrained from touching the body. Thus I can assume that the crime scene examination was not compromised.

37. Nevertheless, he confirmed the picture of the deceased painted by his daughters. The deceased had no fear of escalating punishment to extreme levels. She was, despite her small size, intimidating. The accused ultimately "punished" the family by removing himself from it. Hardly ever did the deceased offer a conciliatory approach. She would never reward what she thought to be bad behaviour. However, she was troubled by the accused's persistent insistence on taking legal action. That obsession, as Mr Porritt characterised it, was advanced in secrecy, though it emerged indirectly and he and the deceased were aware of it.

38. It is important to note that it was Mr Porritt's understanding that, notwithstanding her objectively abusive behaviour, the deceased genuinely loved her children and believed that her tough approach towards them was in their best interests.

39. The deceased had, despite the estrangement from the accused, been desirous of improving relations with him but only on her terms.

40. As Mr Porritt perceived it:

I feel in a way that over a number of years my son was groomed into this role because of his steadfast nature and my wife, because of her steadfast nature, was very angry that he was going down this litigation course. And when they finally did meet, I imagine it was very explosive in that she was hugely angry with him. She was organising for a meeting but she would have wanted it on her terms. For him to just turn up unannounced - and she had mentioned to me at some stage that - that - just some declaration where she said it and walked off as she went to bed and I was falling asleep in front of a computer that, "If I catch him in the house, well, then that's trespass and he'll get so many months and if he comes near me, well, that's assault and he'll get so many years.

41. I note that this statement is not evidence of what actually happened when the deceased and the accused met, but it does provide some insight into the psychology of the likely interaction between them.

42. I next turn to the evidence the prosecution relied upon as indicating a hostile intent on the part of the accused, including the chat room conversations referred to above.

43. I now turn to the detail of the chat room conversations between the accused and his sister, Jenna. He had made comments to the effect that he wanted to send his parents to gaol for as long as possible, that they had failed in their duty of care towards him, were going to hell and deserved to die. His mother, in particular, he wrote, should go to gaol and then die. Particular quotes singled out by the prosecution were:

I hate them, I want to sue the parents now. They deserve to die, they will go to jail. I will do what I like and they will die.

They have ruined my life, now they must pay, so they must go to prison for my safety. I intend to end their lives. If it were not illegal, I would stab them, however, I do not wish to go to jail.

Soon our father will be dead or in jail.

44. These exchanges are in the context of many conversations over the internet between December 2004 and December 2005. I bear in mind the interpretation placed on these utterances by Jenna who clearly did not regard them as indicative of an intention by the accused to kill his parents. It seems to me that it was in the context of the accused's fixation about suing his parents, recovering compensation and thus seeing them punished.

45. On 4 March 2007, a violent incident occurred between the accused and a number of custodial officers at the Belconnen Remand Centre. It is common to all of the latter that the accused was, apparently, in a seriously disturbed state of mind.

46. He was to have visitors but, instead of cooperating with a strip-search he got into a struggle. As he did so he was heard to say, "I killed my mother.".

47. Officer Pedlingham then asked him, "What, you killed your mother?". It seems likely that just before that question, Officer Pedlingham had asked other officers to pay attention. He then recalled the accused saying, "I killed my mother. I've killed my father and I've killed my sister.".

48. Officer Mitchell also recollected something about the devil and demons and blood oozing. Much of what the accused said was incoherent.

49. Officer Takiari had a slightly different version. It was "I've killed my mum. I wanted to kill my father and my sister" or possibly, "I think I've killed my father and my sister.".

50. Officer Myatt heard a reference to the "Prince of Darkness", "I'm bad, I'm bad" and then "I killed my mother" and "I wanted to kill my father and my sister" and "I can see blood.". There were other things said that he could not then make out.

51. Officer Pedlingham could recall the accused stating he wanted to go to D Yard. That was where psychiatrically disturbed detainees were held. He recalled the accused say, "I'm bad, I killed my mother and I want to kill my father and my sister. I'm the Prince of Darkness and the blood is oozing out.". He agreed that the accused was largely incoherent.

52. Officer Dordevic heard Officer Pedlingham say, as he and others struggled with the accused, "Did you hear what he said about his mother?". He then heard the accused say, "I killed my mother, I've killed my father and I've killed my sister. You are draining the blood out of me.".

53. Officer Boyce also heard "I killed my mother" not "I killed my mum". She adhered to the version of what the accused said, following Mr Pedlingham's question to the accused, as, "I killed my mother, and I wanted to kill my father.".

54. Officer Starkey, also present, had a different recollection again, though he came in at the end of the incident. According to Officer Starkey, the accused said, "There is blood oozing, take me to D Yard.".

55. This is an illustration of how different witnesses have different recollections and perceive things from a different perspective, though each is trying honestly, accurately to recall an event.

56. The accused, at that time, believed that he had killed his mother, a true recollection, and was in a delusional state believing he had also killed his father and his sister, each of whom was not only alive but had been frequent visitors.

57. Mr Keith Porritt advised Police on 24 December 2005, some property of the deceased had been identified as missing being, a wallet, a handbag, a wrist watch, a ring, a clock radio and a set of keys.

58. Following the altercation between the accused and custodial officers and the apparent admission that he had killed his mother, investigating police interviewed him. That was on 24 March 2007. The delay was, it appears, due to the psychiatric treatment the accused had required. I will return to the psychiatric evidence later.

59. There were three taped records of interview, two on 24 March at 12.14 pm and at 2.49 pm. The first was brief and canvassed contacting lawyers and obtaining a functioning video camera.

60. In the second, the accused indicated that he wished to reveal where the "missing stuff" was. It was, he said, "Buried under a tree near Lake Burley Griffin".

61. The "missing stuff" he identified as "A watch, a ring and some keys and a knife". Another ring, belonging to the deceased, had been found near the bedroom door at the Chapman house on the day of the killing. He was asked how he came into possession of those items. His response was, "Well, it's because I killed her.".

62. When asked, "Why did you kill her?", he responded, "I don't really know.". He declined to elaborate further. That was, of course, his right and I can draw no adverse inference from his response. A curious feature of his revelation is that the property, which was recovered, as he indicated, but for the knife, was buried on the northern side of Lake Burley Griffin (the Lake). He had not only progressed from Chapman to the Lake but crossed it, apparently at the Commonwealth Avenue Bridge. The knife was found in the Lake not far from the place where the other property was found.

63. The finding of the keys, the other ring and the watch was video-taped and the accused was recorded in video and audio as he directed the search. The clock radio and handbag were not at this location and remain missing.

64. I accept that, following the killing of the deceased, the accused disguised himself and fled to Queensland. However, whilst this confirms the admissions made by the accused that he killed his mother, it does not amount to an admission of intentional (or reckless) killing as required for murder.

65. The prosecution, properly, placed great reliance on the forensic evidence to cast light upon the possible scenarios leading to the death of the deceased. The defence also placed reliance on the forensic evidence, including the expert evidence concerning the accused's psychiatric state.

66. I turn now to the crime scene and autopsy evidence.

67. The autopsy evidence has been substantially misquoted. It has been represented as revealing that the deceased had 57 stab wounds. In truth, the report revealed 57 incised wounds, only a few of them being stab wounds.

68. The pathologist, Dr Lynch, whilst noting many relatively superficial incisions, identified a serious incised wound midline to the left side of the neck. It transected deep neurovascular and muscular structures in the neck. There were other cuts in the general area on the right and left submandibular regions. They were each 7 cm long but relatively superficial.

69. To the chest there was a stab wound entering at the pre-sternal region. Another was on the right anterior chest wall. A similar stab wound was found in the left posterior chest wall. There are two similar wounds to the back.

70. The major neck wound partially severed the carotid artery and the jugular vein. The lungs had both collapsed as a result of stab wounds entering the chest. It was Dr Lynch's opinion that the five stab wounds and single deep neck incision were causative of death. The point was made in evidence that many of the incisions would have been made in the one motion of the knife. There is no reason to doubt that the knife recovered from the lake was responsible for all the wounds inflicted. It was a kitchen knife, and from the Porritt's kitchen.

71. Another aspect relied on by the prosecution was the pattern of blood spatters in the bedroom. There is nothing particularly arcane about the blood spatters and other markings. It is clear that wounds were inflicted on the deceased with the knife. The spatters indicate relative and undoubtedly rapid motion between the knife, the body of the deceased and, no doubt, the person wielding the knife, whether that be the deceased herself, the accused or both. The report of Ms Robinson indicates that many of the apparently different patterns of blood scatter would probably have been produced by the one continuous motion.

72. There were large areas of bloodstain and scatter on the bedding itself; particularly on the pillows. Some of the stains indicated contact after initial deposit. Otherwise, as Ms Robinson notes:

There was little evidence to indicate the exact order in which the bloodshed events occurred.

73. Some of the blood was apparently scattered from the blood source, when the deceased was at, or close to, ground level at the time.

74. The reported blood scattering is not inconsistent with a deep wound to the neck being inflicted on the deceased whilst she was on the bed, and then a violent struggle between the deceased and the accused ensued whilst the former was standing, and then moving or being moved about, ultimately falling next to the bed near the doorway, upending the bedside table. There was evidence of an attempt to clean some of the bloodstains. It was Ms Robinson's opinion that the blood spatter marks scattered when the deceased was lower toward the floor, were consistent with her then sitting, crouching or kneeling.

75. Of course, that description is misleading if it assumes that the deceased was stationary in such a position when struck with the knife. It is more likely that blows were stuck as the deceased was falling to the floor. That scenario certainly cannot be excluded.

76. The Crown case, so far as the accused's state of knowledge and intention when the knife blows were struck and the immediate circumstances attending those actions, thus relied on indirect inferences.

77. In this case, the accused gave evidence. It is apparent that he is, generally, an intelligent young man. He had, just before these events, graduated from the University of Canberra. Due to differences with his parents, including his grievance about his medical treatment for acne, he had left home in November 2004. He was working at the Taxation Office where he had had a cadetship, and had secured an ASO 6 position upon his graduation.

78. Of some relevance is his account of the incident which led to him, when aged 17, being charged with assault and property damage.

79. He referred to the incident where Amy and Jenna fled the house.

80. Amy had, before that happened, fled down the stairs and hid beneath his computer desk. His evidence was that:

... a short time later, my mother came down the stairs and she looked - appeared to be looking for Amy and she said, "Right, we'll get you too", and then she walked over to the television, she had a banana peel in her hand, and she said, "How would you like it if I smear food all over your TV?", and I stood between her and the television and told her to fuck off. Then she sat on the couch and I said to her, "What, are you going to sit there all day?" and she said, "I think I might", and we argued for a while. Then she picked up a plate and she looked like she raised it and she took a step towards me. I didn't wait for her to pull the plate all the way back because I thought she was going to hit me with it, so I pushed her and then she came towards me again, so I pushed her again and then she left.

81. The deceased had, he said, struck him on previous occasions. That was the assault with which he was, later that day, charged.

82. It was after this, and in retaliation, that his medication was confiscated. He retaliated by withdrawing from interaction with his parents. After completing Year 12 he managed both working and studying. He had, before he left home, himself paid for treatment for his acne. He estimated it cost him $7,000. He had, then, formulated his plan to sue for damages.

83. On the day his mother met her death, the accused had attended the family home at Chapman, by arrangement, to return a book to his sister, Amy. She had passed on her congratulations to him on graduating. She had also revealed that their parents had attended the graduation though not at his invitation. Mr Dawe QC suggested that this was a cause for resentment on the part of the accused. The accused denied that. I think it may have had a role in what later occurred, though not in the way Mr Dawe was suggesting.

84. The accused deposed that after returning the book he drove to his flat in Deakin. He then had a shower, changed and decided to go to Cooleman Court in Woden to hire videos. When he got there, he found he'd left his wallet and video hire card behind. He then thought he might visit his parents to put to them his claim for compensation.

85. As he put it:

Well, one of my friends had been sort of harassing me to try and make amends with my parents and I thought that maybe if I just asked them to pay me some money that wasn't a very large amount they might, and then we could just put things behind us.

86. Unrealistic, probably, but it may be that his parents' attendance at his graduation persuaded the accused, even at a subconscious level, to view this scenario as possible.

87. Accordingly, the accused, having walked to the video store at Woden, decided to walk to his parents' home at Chapman. He knocked on the door. His mother answered. They went into the kitchen. The accused recounted that he explained to her that "I wanted her and my father to reimburse me for $7,000 that I'd spent because I felt it was her fault".

88. The response, the accused said, was "Grow up" or "Get real". They argued. The accused started yelling at the deceased. Then "she picked up the knife off the kitchen bench" and told him to "Get out". The accused said he would wait for his father. The deceased then said to him:

If you don't get out now I'm going to call the police.

89. She then went upstairs to the master bedroom. There was a telephone there. The accused followed "to try and reason with her".

90. Then, he said:

I went into her room and was standing between the bed and the wardrobe and she was hysterical and she - she yelled, "Get out. Get away from me," and she slashed at me with the knife. I couldn't really move out of the way because it's a very narrow space between the bed and the wardrobe so I grabbed her arm and bent it backwards so the knife pointed away from me and towards her.

91. It should be noted at this point that, as a matter of law, the accused had become a trespasser, having been asked to leave and having refused to do so. That status, however, did not confer upon the deceased a licence to injure the accused. Nor does it seem to me that was her intention. It is clear to me, if this account be true, that the deceased was alarmed that the accused had followed her to the bedroom, a situation she would reasonably have regarded as threatening and, certainly, making it difficult for her to phone for assistance.

92. To avoid being slashed with the knife, the accused grabbed the deceased's hand and arm with both his hands. The two of them struggled, the accused intending to get possession of the knife. The deceased, with her other hand, picked up the bedside clock and began to strike the accused with it. They had, by then, moved to the head of the bed. He released one of his hands and grabbed her arm holding the clock.

93. At that point they overbalanced and fell onto the bed. The deceased was pushing the knife towards him. As they fell, he said, "she got cut in the neck". He then managed to get possession of the knife and stood up. The deceased slid off the bed and onto the floor and stood up.

94. He noticed there was blood on the pillow and then saw, as the deceased stood up, "quite extensive injuries" to her neck. He was then standing between the bed and the wardrobe. The deceased was standing near the doorway.

95. At that point, he said, he felt sick and tried to get out of the room. He described this as follows:

Well, I tried to push past her but she grabbed onto my arm. I panicked and I was just trying to frantically get out of the room and started flailing my fists at her, trying to sort of hit her and shove her out of the way. Eventually she sort of collapsed out of the way and I managed to get past her, and I went to the bathroom and threw up in the sink.

96. When he returned to the bedroom, his mother appeared to be dead. He recounted that:

It was then that I realised in trying to get past her and sort of hitting her and shoving her I still had the knife and I stabbed her.

97. He made an attempt to clean up some of the blood. That was unsuccessful. He decided to steal some things, a watch, ring, keys and a handbag. He then ran towards the Lake discarding the handbag in a bin on the way.

98. He threw the knife into the Lake and buried the other items where they were later found. He went to sleep on the ground. He stayed there drifting in and out of sleep for four days. He was disorientated and had no recollection of what had happened. He walked back to his flat in Deakin. As he had lost his keys, he broke in. It had been searched; his car was missing. There was a copy of a search warrant on a chest of drawers. It referred to the murder of Nanette Mary Porritt. The accused then realised that his mother had been killed and that he was suspected of committing it.

99. The accused changed clothes and, somewhat ineffectually, disguised himself. He went to Tuggeranong and, after four or five days sleeping by Lake Tuggeranong, he started to clean car windows to raise some money.

100. He was, after 20 minutes, recognised and arrested. He was questioned but declined to answer. He did not then recall, he said, what had happened so he did not know what to say. He was not charged but was released and returned to his flat.

101. There he remained until he was served with a subpoena to attend his mother's inquest. He then panicked and drove to Queensland. He was arrested and returned to Canberra, being held as a material witness for two weeks. He was then released and resumed living at the family home in Chapman. He did not recall the incidents of apparently delusional behaviour remarked upon in evidence by his sister.

102. Two to three months later he was charged with the murder of his mother and remanded in custody. He has so remained since then. Eventually, his mental state deteriorated until the psychotic episode referred to above occurred. His perception of that episode was that the Prince of Darkness was coming and some of the custodial staff were going to kill him. He was treated by Dr Bonner, psychiatrist, and his recollection of what had occurred on 21 December 2005 returned. At first, on 4 March 2007 during the psychotic episode, it was simply a realisation that he had killed his mother.

103. During the struggle, he thought Officer Takiari was draining his blood away. He had said the Prince of Darkness was coming and was the spawn of all evil. His recollection of his reference to his father and sister was "I think I killed my father, I think I killed my sister".

104. The differences in the versions given by the various witnesses do not seem to me to contradict the version given by the accused, bearing in mind his apparently disturbed mental state and the different perspectives and capacity for recollection of those other witnesses, each of whom was doing his or her best to recall the event.

105. He did, after the treatment he received, talk to police, as recorded above, so that the items he had buried, and the knife, were recovered.

106. There then followed cross-examination by Mr Dawe. The accused agreed that, in the earlier incident, he had pushed his mother when he thought she was about to hit him with the plate. He did agree with Mr Dawe that his attitude, after he left home in 2004, was "pretty selfish".

107. Indeed, I would characterise it as obsessional. He clearly displayed little appreciation of the feelings or reactions of others when pursuing his own interests. He also agreed that, as at 21 December 2005, he had not spoken to either of his parents for over 12 months.

108. He had not expected his mother to be home alone when he arrived. He had wanted to speak to both of his parents about his grievances. He agreed that his mother might have felt apprehensive when he yelled at her but did not really care if she was and did not think she might have been afraid of him. It would, he agreed, have been more reasonable for him to leave and wait outside for his father to come home.

109. The accused agreed that he did not want his mother to call the police and was intending to stop her doing so when he followed her upstairs.

110. He was cross-examined as to the detail of what occurred in the bedroom. He did not deviate from the account he gave in evidence in chief. He did agree, however, that he perceived the pushing of the knife towards him after he bent the deceased's arm back as the deceased attempting to prevent injury to herself, rather than as a threat to him.

111. He was also asked:

And yet you saw fit to maintain this struggle with her on the bed when you knew she had been injured with the knife?

The accused answered, "Yes".

112. He denied that he had any intention to cause harm to his mother, though he agreed that he ought to have been aware that she might have been harmed in the struggle over possession of the knife. It was not something he adverted to at the time.

113. He agreed with Mr Dawe that the purpose of taking the items he did was to make it look as if a robbery had taken place. It was not clear why he took the bedside clock or what he did with it, though, it might, I suppose have had his fingerprints or DNA on it.

114. It is, to an extent, indicative of a state of panic, despite this attempt at a cover-up, that he lost his own keys in the course of his flight.

115. So far as the stabbing and cutting, that obviously occurred after the deceased slid off the bed, the accused, though referred to the blood spatter patterns, denied that he had used the knife on his mother by hitting at her whilst she was on the floor.

116. Whilst I accept that not all the wounds sustained by the deceased to her upper body were inflicted while she was standing upright, it is clearly possible that a number of them were sustained as the deceased was falling or tumbling to the floor.

117. The physical evidence is, of course, also consistent with the scenario put by Mr Dawe to the accused, namely, that he surprised his mother in her bedroom whilst she was lying on the bed, perhaps reading or resting, and there attacked her.

118. A part of the attack by Mr Dawe on the credibility of the accused, no doubt to support that scenario, was that the accused's apparent psychotic breakdown was affected to erect "some sort of psychiatric defence".

119. That attack itself lacked a degree of persuasiveness, mainly because the apparent psychotic breakdown of the accused was not suggested as supporting mental dysfunction of any relevant kind on 21 December 2005, or any kind of diminished responsibility. At best, it tended to explain why the accused chose to revisit his grievances when he did and why he failed to leave, as he should have, when his mother requested him to do so. It makes more credible his claim to have had amnesia concerning the incident in question until the psychotic episode described above.

120. It also adds some credibility to the accused's otherwise extraordinary claim that he could strike his mother numerous times with a knife without consciously realising he was doing so. The following passage of evidence addressed that issue:

... this may be a difficult question to answer, but looking at it now, would you agree that it was very careless of you, to put it one way, I could use other words obviously, to have punched at your mother while you were holding a knife?---Yes.

So what's your feeling about that now?---Well I - I should've - once I got the knife off her I should've sort of paid attention to that and dropped the knife.

And that lack of attention to that detail plainly is - Well, it seems very likely that led to your mother's death?---Yes.

You now understand that, I take it?---Well assuming the injuries that were inflicted by stabbing her were the injuries that killed her and not the initial injuries to the neck.

121. In response to further questions from Mr Harris the accused agreed that it had been "careless" of him to strike his mother whilst holding the knife but that he had not been conscious of what he was doing.

122. It would, on the face of it, be difficult to accept that the accused had been unaware of the consequences of him pressing the knife when held by his mother back towards her and then, when he held it, then striking her with it as he was endeavouring to get out of the room.

123. The defence also called Dr Daniel Bonner who had treated the accused in custody.

124. Dr Bonner first met the accused on 7 November 2006 because of concerns that he might self-harm. There was a subsequent meeting in March 2007 after the episode at the Remand Centre during which the accused was apparently psychotic.

125. After 7 November 2006 but prior to March 2007, Dr Bonner had found no psychotic symptoms but did find evidence of Asperger's disorder. This was characterised by:

... a marked lack of ability to appreciate social cues, nuances in conversation, the thoughts or actions that others might have to the extent that would be normal in most of us, our ability to anticipate those cues.

126. The pursuit of his legal case was an example of "fixed and stereotyped behaviour" typical of Asperger's. In contrast with autism, this disorder focuses on difficulties with communication upon a social level "picking up social cues, having the ability to anticipate the thoughts and behaviours of others in social situations ...".

127. A further feature of this disorder, as the accused manifested it, was a "set of stereotyped interests and behaviours ...".

128. On the second occasion, 7 March 2007, Dr Bonner found evidence of an acute and florid illness characterised by delusions and auditory hallucinations. This was not, nor could it have been in the circumstances, related to substance abuse. It seemed to be linked to stress. Dr Bonner said:

I later diagnosed Mr Porritt with a schizophrenia type disorder and he is now under a psychiatric treatment order and required to take medications ....

129. It is not suggested that this psychosis was present on 21 December 2005. I have no doubt that it was genuine. It also lends support for the otherwise doubtful hypothesis that, until it occurred, the accused had lost recollection of the events of 21 December 2005 at the Porritt family home.

130. The diagnosis Dr Bonner offered was confirmed by a second opinion from Dr Graham George, another psychiatrist.

131. The diagnosis of Asperger's disorder is consistent with the accused's decision to discuss the matter of his proposed law suit with his parents on 21 December 2005. On listening to the accused's evidence, Dr Bonner opined that the accused had demonstrated that his ability to size up a situation and make a reasonable judgment as to how his mother must have been feeling had been impaired, in particular, in pursuing her up to the bedroom. The other component of his disability was:

... a tendency to have very fixed black and white views. So his views on the outcome of his request for $7,000 would have been very black and white, he wouldn't have backed down an inch, and I believe that's the nature of Mr Porritt's character and the nature of his Asperger's disorder, and he would've rigidly pursued that to the enth degree, which he did.

132. I make the comment that this description of the accused's approach is remarkably similar to that attributed to the deceased.

133. It had been suggested to the accused by Mr Dawe that he showed a "selfish" attitude. Dr Bonner explained that manifestation as follows:

If I might expand on the use of the word "selfishness" I believe that in this context with regards to Mr Porritt we are talking about someone who is almost unemotionally concerned with himself only and cannot be altered by reasonable argument into taking into account the effect of his actions upon others and this is because of his deficit in this regard. If you look at the use of the word "selfish" the common use of the word "selfish" and the use with which I would usually use it would be a kind of highly emotional narcissism where there's a great deal of indulgence invested in one's self-interest. In fact, Mr Porritt doesn't exhibit this at all. His selfishness is about thinking in a rigid and stereotypic fashion, being unwavering and unthinking of others, he doesn't get any indulgent feeling or narcissistic interest from his selfishness.

134. In my view, this assessment supports the view I had formed that, despite his obvious self-interest in putting a version of events least condemnatory of himself, the accused gave a genuine recollection without regard to his own self-interest. He did acknowledge fault in his actions in punching at his mother to get out of the bedroom whilst still holding the knife. Indeed, that scenario is consistent with the self-absorption Dr Bonner described as a feature of his disorder.

135. Dr Bonner was searchingly cross-examined by Mr Dawe. That confirmed the apparent genuineness of the psychotic episode involving the deceased and places its significance as an unravelling of his mental defences which had blocked out the memory of the killing of his mother. The fact that he was able to lead police to the buried items would seem to confirm the essential accuracy of his recovered memory.

136. Of course, some persons might fake or exaggerate psychotic symptoms to create the verisimilitude of a psychiatric defence. It is noteworthy that the accused's presentation has the opposite effect. Whatever he did on 21 December 2005, he was not then in a mentally dysfunctional state, nor of diminished responsibility, and he has never claimed to have been. That is not to say that his underlying Asperger's syndrome did not influence the events which unfolded.

137. That was the case for the accused.

138. In final address, Mr Dawe, correctly, focussed on the main issue in contention. What was the accused intending when he engaged in the actions which undoubtedly caused his mother's death?

139. It was a fair inference, Mr Dawe submitted, that when the argument occurred in the kitchen, the deceased became apprehensive and so picked up the knife as a warning to him to stay back and to comply with her demand that he leave the house.

140. The accused then followed her upstairs, effectively invading her space. It is clear on his account, Mr Dawe submitted, that the deceased became very alarmed, even hysterical.

141. Instead of retreating, the accused got himself into a position where he was unable easily to leave without a risk of being slashed with the knife. He then took hold of, and pushed, the deceased's arm back.

142. It was Mr Dawe's contention that the blood spatter evidence was not consistent with the scenario attested to by the accused. The essential question is whether it was inconsistent with that scenario, and I am not persuaded that it was.

143. In so far as the actions of the accused caused the neck wounds found on post-mortem examination, Mr Dawe submits, and I accept, that the accused caused them. He was the bigger and stronger person. Mr Dawe submitted that he either intentionally forced the knife against her neck or, at least, was reckless as to whether it was so forced. Thus he either did or should have realised that serious injury was likely.

144. I have to remind myself that if competing inferences are reasonably open on the evidence then I am obliged to prefer that inference least adverse to the accused.

145. Certainly, there is no evidence to support the contention, advanced by Mr Dawe, that had the deceased suffered the neck wound before slipping off the bed, as the accused asserted, she could not have regained her feet. There is no suggestion that death was instantaneous. Nor indeed is it obvious that had the neck wounds, though potentially fatal, been treated by prompt medical intervention, the deceased could not have survived. In any event, it is clear that it was the combination of those wounds and at least three of the five stab wounds to the upper body that caused the deceased to die when she did rather than later.

146. That stab wounds could be caused by a punching action was challenged by Mr Dawe. If by that was meant a conventional punch knuckles foremost, that would be a valid point. However, the accused described, not so much a punch, but rather a flailing motion. It might well have included blows struck with the side of the hand foremost.

147. Mr Dawe conceded that the presence of reading material in the bedroom would not warrant an inference that the accused attacked the deceased whilst she was lying on the bed reading. Indeed, that is a most unlikely scenario. The most blameworthy scenario is that the deceased rebuffed the accused's demands, that he was thereby enraged and followed her upstairs with the knife to prevent her calling the police or even to do her harm. However, that scenario is just as consistent with all the evidence as that deposed to by the accused.

148. On either version, his flight, attempts at disguise and faking a robbery are consistent with what, on any view of it, was a shockingly horrific event. He could reasonably expect to be blamed for it. Thus his attempt to make it look like a robbery gone wrong was clearly understandable.

149. Mr Harris, in reply, rightly pointed to the need for the Crown, if murder is to be found, to satisfy the Court that the accused had the intention to kill or, at least, was recklessly indifferent to the probability of death occurring. It is not enough that even grievous bodily harm was intended or was, or ought to have been, foreseen.

150. That does, however, leave open the question as to whether, nevertheless, the killing was an unlawful homicide. Provocation is not a relevant issue, as Mr Harris conceded. Nor would the use of the knife, once the accused had control of it, whether when still in the possession of the deceased or after he had it, be justified in self-defence. However, I could not exclude the seizing of the arm and hand holding the knife as warranted by self-defence.

151. Mr Harris' primary submission was that the accused neither intended nor foresaw that his acts would cause the severe injuries that resulted. Thus, at worst, manslaughter could be found but not murder.

152. Essentially, I agree with those submissions. I am not satisfied beyond reasonable doubt that the accused inflicted any of the injuries suffered by his mother intending to kill her or with reckless indifference to the probability of death being caused.

153. There must be a verdict of not guilty of murder.

154. However, that leaves open whether a finding of unlawful homicide should be made.

155. As has already been noted, the only two bases open for such a finding are the causing of death by an unlawful and dangerous act or by criminal negligence.

156. It was not unlawful for the accused to seize and disarm his mother. He has deposed to striking his mother to escape from the room, panicked by the sight of blood. In disarming his mother, he, objectively, used excessive and dangerous force, resulting in the severe injury to her neck. The other injuries, objectively, were inflicted by striking the deceased without adverting to the presence of the knife. Whilst I accept that hypothesis as reasonable and not excluded beyond reasonable doubt, it is extraordinarily negligent for him not to have realised the knife he held was being lethally deployed.

157. In my opinion, that conduct, that series of acts, was, objectively, so negligent as to constitute criminal negligence. I so find and, on that basis, find that the accused is guilty of unlawful homicide. I record a verdict accordingly.

I certify that the preceding one hundred and fifty-seven (157) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 22 April 2008

Counsel for the Crown: Mr W Dawe QC with Mr C Todd

Solicitor for the Crown: ACT Director of Public Prosecutions

Counsel for the Accused: Mr J Harris SC with Mr J Sabharwal

Solicitor for the Accused: Legal Aid Office (ACT)

Date of hearing: 4, 5, 6, 7, 11 and 12 February 2008

Date of judgment: 22 April 2008