Citation: R v Hutchison & Wilkinson [2018] NSWSC 1759
Court: Supreme Court of New South Wales
Date: 16 November 2018
Judge: Hamill J
Background
The deceased, referred to by the pseudonym Brett Walker, was lured from work by his ex-wife, the first accused, and ambushed at his home in St Marys on 20 October 2014. He suffered severe injuries including craniofacial trauma, ligature marks to his throat, and injuries consistent with a Taser or cattle prod. He died of asphyxia and craniofacial trauma. His body was transported in the boot of a car and dumped on an isolated dirt road north of Wisemans Ferry.
The first accused and her fiancé, the second accused, were tried together before a judge alone. The case arose from an acrimonious family law dispute in which the deceased had obtained custody of the couple's children. The prosecution alleged that the first accused was motivated by hatred of her ex-husband and that the two accused acted together in a joint criminal enterprise to inflict at least grievous bodily harm.
Both accused admitted to luring the deceased, assaulting him at his home, and disposing of the body. Each, however, ran substantially different and in some respects contradictory defences. The case also featured unusual evidence, including the first accused's self-identification as a "white witch," the making of a voodoo doll of the deceased, and the deceased's own involvement in demonology and ghost hunting.
Legal Issues
- Whether the first accused committed murder or whether her conduct was justified or excused by self-defence or defence of others (specifically, a belief that the deceased was sexually or physically abusing their children)
- Whether the partial defence of substantial impairment by abnormality of mind reduced the first accused's liability from murder to manslaughter
- Whether the partial defence of loss of self-control was available to either accused
- Whether the two accused were parties to a joint criminal enterprise to inflict grievous bodily harm, and if so, what the scope of that enterprise was
- Whether the second accused had the requisite intention for murder, or whether his liability was limited to manslaughter by unlawful and dangerous act
- Whether the deceased was alive or already dead when placed in the boot of the car, and whether any alternative murder case based on reckless indifference to human life was established
Decision
Hamill J found both accused guilty. The court rejected the first accused's claim that she acted in defence of her children. While acknowledging her genuine history as a survivor of childhood sexual abuse and her related mental conditions, the court was not satisfied that she held a genuine and reasonable belief that the assault was a necessary response to protect her children. The court found that the preponderance of evidence pointed to hatred and a desire for revenge arising from the bitterly contested family law proceedings as the true motivation, rather than a protective purpose.
The substantial impairment defence advanced by the first accused was also rejected. The court accepted that she suffered from relevant mental conditions, including conditions arising from her own history of childhood sexual abuse. However, it was not satisfied that those conditions substantially impaired her capacity to understand events, judge whether her actions were right or wrong, or control herself, to a degree that warranted reduction of the offence from murder to manslaughter.
On the joint criminal enterprise question, the court found that both accused had participated in a common purpose to inflict serious violence on the deceased. While the second accused sought to minimise his role, claiming he remained largely outside the house, the court found this account unpersuasive in key respects. His conduct before, during, and after the attack demonstrated sufficient participation and shared intention. The court also addressed the alternative prosecution case based on reckless indifference, which had been advanced in the event the deceased was still alive when placed in the boot of the car.
The court noted the unusual evidential features of the trial, including expert psychiatric evidence, contested accounts of what occurred inside the house, and the evidentiary limitations created by the fact that statements made by the first accused to psychiatrists could not be used against the second accused. The court addressed each evidential issue with care, noting where particular evidence required caution.
Orders Made
No orders were made in this decision.
Key Takeaways
- A genuine belief that violence was necessary to protect others from harm is required for the defence of others to succeed under the Crimes Act 1900; the Supreme Court found that the first accused's stated protective purpose was not credibly established on the evidence and that hatred provided a more plausible explanation for her conduct.
- The partial defence of substantial impairment requires that an abnormality of mind substantially impair relevant capacities to a degree warranting reduction from murder to manslaughter; recognising mental conditions and their origins is not, of itself, sufficient to establish the defence.
- Where accused persons run different and contradictory defences in a joint trial before a judge alone, the court must carefully compartmentalise the evidence, applying statements made to forensic psychiatrists by one accused only to that accused's case and treating the other accused's evidence with appropriate caution when used against the co-accused.
- Joint criminal enterprise liability requires proof that each accused shared a common purpose; an accused who claims a peripheral role is still potentially liable if the court finds their participation and shared intention is established by the totality of the evidence.
- A prosecution may advance an alternative case based on reckless indifference to human life where facts are in dispute as to whether the victim was alive or dead at a particular point; the court considered this alternative alongside the primary murder case.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), ss 133, 306ZI
- Crimes Act 1900 (NSW), ss 23A, 418–423
- Evidence Act 1995 (NSW), ss 54, 60, 87, 136, 165, 191
- Family Law Act 1975 (Cth), s 121
Cases:
- AK v Western Australia (2008) 232 CLR 438
- B v R [2015] NSWCCA 103
- Campbell v The Queen (1981) WAR 286
- Chamberlain v The Queen [No. 2] (1984) 153 CLR 521
- Colisimo & Ors v Director of Public Prosecutions (NSW) [2006] NSWCCA 293
- Flanagan v R (2013) 236 A Crim R 255
- Fleming v The Queen (1998) 197 CLR 250
- Fox v Percy (2003) 214 CLR 118
- McAuliffe v The Queen (1995) 183 CLR 108
- Melbourne v The Queen (1999) 198 CLR 1
- Miller v R; Smith v R; Presley v Director of Public Prosecutions (SA) (2016) 259 CLR 380
- Osland v The Queen (1998) 197 CLR 316
- Palmer v The Queen (1998) 193 CLR 1
- Pemble v The Queen (1971) 124 CLR 107
- Potts v R (2012) 227 A Crim R 217
- R v Brooks [2017] NSWSC 188
- R v Crabbe (1985) 156 CLR 464
- R v Dziduch (1990) 47 A Crim R 378
- R v George O'Neil (NSW Court of Criminal Appeal, 13 August 1992, unrep)
- R v Hutchison, Wilkinson & Greentree [2018] NSWSC 1513