R v Hutchison & Wilkinson

1. [1]

   On 20 October 2014, hoodwinked by a ruse perpetrated by his ex-wife, Brett Walker (a pseudonym) left work early and returned to his home in St Marys. Soon after arriving home, Mr Walker was ambushed and severely beaten. The precise order of events is not known; will probably never be known. His airways were compromised and he died of asphyxia and craniofacial trauma. He suffered many injuries including a broken nose, black eyes, multiple bruises and abrasions, and injuries probably inflicted by a low voltage Taser, cattle prod or similar electrical device. An electrical cord, or cable of some kind, was used as a ligature around his throat. There was a distinct linear abrasion on his throat. He aspirated food into his lungs. His precise time of death is not known, but about five or six hours later he was left by the side of an isolated dirt road about 20 or so kilometres north of Wisemans Ferry. He was taken to this location in the boot of a car and dumped there by his ex-wife Raquel Hutchison and her fiancé Paul Wilkinson. Those are the facts of the case. They are not disputed.

2. [2]

   Mr Walker’s body was found by a Mr John McBain at about 7:00am the next day by the side of a dirt road called Mangrove Creek Road, Greengrove (a little north of Wisemans Ferry). A pathologist attended the scene at 1:30pm. The body was stiff with rigor mortis and was very cold. Mr Walker had been dead for many hours, somewhere between 12 and 24 according to the pathologist. There is some controversy as to whether he was alive or dead when he was placed in the boot of Mr Wilkinson’s car and when he was left by the side of the road. For reasons I will explain, I am satisfied he was dead well before he was deposited at Greengrove.

3. [3]

   Ms Hutchison and Mr Wilkinson are charged with Mr Walker’s murder. Their joint trial was conducted by Judge alone, spasmodically, between 10 August and 24 October 2018. There were some bizarre elements of the evidence adduced in the trial. This included evidence that Ms Hutchison considered herself to be a “white witch” and that she and her daughter composed spells and manufactured a “voodoo doll” of Mr Walker. It also included evidence of Mr Walker’s interest in demonology and ghost hunting. A video was tendered that showed Mr Walker purporting to perform an exorcism. However, the motivation and facts of the case are generally far more prosaic. Even so, these weird aspects of the evidence have relevance, although perhaps peripheral relevance, to at least one of the issues for determination.

4. [4]

   The prosecution alleges that the two accused carried out a joint criminal enterprise to inflict, at least, grievous bodily harm on Mr Walker. It says that Ms Hutchison was motivated by hatred of her ex-husband because he was the victor in acrimonious family law proceedings and had custody of her children. It says that Mr Wilkinson acted to support his fiancé in the criminal enterprise. The prosecution relies on the number and nature of the injuries, along with things done and said both before and after the crime.

5. [5]

   Towards the end of the trial (but before commencement of addresses), the Crown Prosecutor put an alternative case based on reckless indifference to human life. This alternative case was advanced against the possibility of a finding that Mr Walker was still alive when his body was placed in the boot of the car. That is what Ms Hutchison told two psychiatrists who interviewed her for the purpose of the criminal proceedings. Mr Wilkinson gave evidence that he thought Mr Walker was dead but did not check to be sure. On this alternative prosecution case theory, the failure to check on Mr Walker’s wellbeing and leaving him in the boot for a number of hours were acts and omissions demonstrating an utter disregard for whether Mr Walker lived or died. The alternative case is also based on the pathologist’s opinion that another significant condition contributing to death may have been “restraint”.

6. [6]

   While both accused deny any intention to inflict grievous bodily harm or to kill, they otherwise conducted very different – and in some respects contradictory – defences. There is one significant body of evidence in Ms Hutchison’s case that was not admitted in Mr Wilkinson’s trial. This concerns accounts that Ms Hutchison gave to forensic psychiatrists who gave evidence relevant to her mental state at the time of the killing. In those accounts she said that Mr Wilkinson was involved in the physical altercation that led to Mr Walker’s death. Mr Wilkinson gave evidence and denied (almost entirely) being involved in the physical assault on Mr Walker. The version provided by Ms Hutchison to the doctors must be disregarded in Mr Wilkinson’s case. Mr Wilkinson’s evidence is admissible, but must be treated with caution, in Ms Hutchison’s case.

Ms Hutchison’s case

1. [7]

   Ms Hutchison admits that she (and Mr Wilkinson) assaulted Mr Walker in his own home having gained entry without his consent. She agrees she lured him there by tricking him. She accepts that the injuries occasioned in the assault caused or contributed substantially to Mr Walker’s death. She agrees that she and Mr Wilkinson left the body by the side of the road near Wisemans Ferry. She told the psychiatrists that Mr Walker was “alive when we let him go” north of Wisemans Ferry and at a place where “it would be difficult for him to get home.”

2. [8]

   However, Ms Hutchison says that she had no intention to inflict grievous bodily harm or to kill her ex-husband.

3. [9]

   She also says that her conduct was carried out in defence of her two children who she believed were being abused by Mr Walker. She believed they were being abused because the children complained about being assaulted, either physically or sexually. Her intention in going to the premises was to try to extract a confession from her ex-husband that she could use in having him charged by police or otherwise having her children removed from Mr Walker’s care. The prosecution says that Ms Hutchison held no such belief; this was yet another ruse or deception calculated to justify her killing her ex-husband out of simple hatred and jealousy. It contends that Ms Hutchison manipulated the children into speaking ill of their father and, somehow, forced them to make false allegations against their father. It relies on a body of evidence proving that Mr Walker was, in fact, a good father as well as evidence suggesting that Ms Hutchison repeatedly asked the children whether their father had abused them and a direct assertion from one of the children, made shortly before the trial, that he thought his mother was “putting ideas in his head”.

4. [10]

   Ms Hutchison also relies on the partial defence of substantial impairment. That is, she relies on the psychiatric evidence establishing she had an abnormality of the mind that impaired her in relevant ways and that justify the reduction of her criminal liability from murder to manslaughter. The prosecution submits that Ms Hutchison was not substantially impaired and, even if she was, the impairment was not so great as to warrant the reduction of the crime from murder to manslaughter.

Mr Wilkinson’s case

1. [11]

   Mr Wilkinson gave evidence. He denies entering any joint criminal enterprise to inflict grievous bodily harm on Mr Walker. He denies being involved in the assault on Mr Walker except for throwing one punch in response to Mr Walker swinging his arm at him. For the most part he says he was outside while Mr Walker and Ms Hutchison were arguing and fighting. He came inside to attempt to break up the fighting. He says he left the premises to get his car and when he returned Ms Hutchison had a cord or something similar around Mr Walker’s neck. He tried to remove the cord and Mr Walker slumped down and did not again show any signs of life. He assumed he was dead. He agrees that he assisted Ms Hutchison in putting the body into the boot of the car and, finally, depositing it on a dirt road near Wisemans Ferry. He admits that he was part of the plan to extract a confession from Mr Walker and waited outside advising her by text message as to when Mr Walker was approaching the premises.

2. [12]

   Mr Wilkinson’s primary position is that the prosecution cannot establish either that he had any intention to kill or inflict grievous bodily harm or that he entered a joint criminal enterprise to inflict grievous bodily harm. He played a very minor role in what went on inside the house and committed no act that contributed to Mr Walker’s death. While he knew some violence would be occasioned, the extent of the violence went well beyond any common purpose in which he was involved. He says he is not guilty of murder because the Crown cannot prove intention or the existence of a joint criminal enterprise involving murderous intent.

3. [13]

   Almost no submissions were directed to the question of whether Mr Wilkinson might be guilty (or not guilty) of manslaughter by unlawful and dangerous act. However, assuming the prosecution fails to establish the specific intention required for murder, this alternative form of homicide may arise if Mr Wilkinson was party to a joint criminal enterprise to assault Mr Walker and the assault was both unlawful (in that self-defence is excluded) and dangerous (in the sense that the act carried with it an appreciable risk of serious injury).

4. [14]

   Counsel also submitted that self-defence may arise in Mr Wilkinson’s case although the accused gave no evidence suggesting that he thought it was necessary to do what he (and/or Ms Hutchison) did to defend the children. Nor did counsel make any particular submission, based on the evidence, addressed to the issue of self-defence. Even so, I accept that there is evidence capable of giving rise to the issue and, if there was a jury, the issue of self-defence (upon which the prosecution bears an onus of disproof) would be left for its consideration. [1]

Judge alone trial

1. [15]

   The accused both applied for a trial by judge order. The Crown consented to such an order. Accordingly, I had no option but to grant the application and hear the case without a jury. [2] I am able to return any verdict that would have been available to a jury and those verdicts have the same effect as a jury verdict. [3] I must set out the relevant principles of law and findings of fact upon which those verdicts are based. [4] I must take into account any warning that a jury would receive. [5]

2. [16]

   In spite of the apparently simple requirements and plain language in s 133(2) of the Criminal Procedure Act 1986, the High Court has held that more is required than simply setting out the legal principles and the findings of facts. For example, it is necessary to engage with the arguments made by counsel. [6] The requirements were considered by the High Court in Fleming v The Queen. [7] There must be more than a literal compliance with s 133(2) and the process of reasoning leading to the verdict must be transparent and clear. The judgment must expose “the reasoning process linking [the legal principles with the findings of fact] and justifying the latter and, ultimately, the verdict that is reached.” [8]

Separate consideration of each case, available verdicts and basis of possible verdicts

1. [17]

   The trials of the two accused were conducted together as a matter of convenience. However, each case must be considered separately and based on the evidence admissible in each case. The nature of the “defence” conducted by each accused is different. In some instances, different legal principles arise. By way of example, the defence of substantial impairment only arises in Ms Hutchison’s case. Mr Wilkinson has raised his good character (in a particular respect) while there is no similar issue in Ms Hutchison’s case.

2. [18]

   Further, there are some substantial differences in the evidence admitted against (and for) each accused. In particular, there is a significant body of (hearsay) evidence admissible in Ms Hutchison’s case that cannot be used – either for him or against him – in Mr Wilkinson’s case. A summary of telephone records was tendered (Ex OO) and only part of this is admissible against Mr Wilkinson. The parties agree that (i) the text messages sent by Ms Hutchison to Mr Wilkinson before 20 October 2014 are only admissible against the latter if he responded; and (ii) all text messages between the two on 20 October 2014 are admissible against Mr Wilkinson.

3. [19]

   For these reasons, the factual findings in each separate case, and the verdicts for each accused, may be different. The fact that one accused is acquitted of a particular charge does not mean that the other accused must be acquitted of that charge. [9] However, if I have a doubt in relation to one accused, based on the deficiencies of evidence relevant to both accused, I must take that doubt into account in considering the verdict in relation to the other accused. [10] By way of example only, if I had a reasonable doubt as to whether Ms Hutchison formed an intention to kill or inflict grievous bodily harm, it is difficult to perceive of circumstances in which I would conclude beyond reasonable doubt that Mr Wilkinson acted with a murderous intent or was part of a joint criminal enterprise to murder Mr Walker.

4. [20]

   In each case, the possible verdicts are (i) not guilty, (ii) guilty of murder, or (iii) not guilty of murder but guilty of manslaughter. Based on the issues raised in each case, those verdicts arise in different ways. The following brief statement of the issues is based on the way the case was conducted, the concessions made concerning the acts causing or contributing to Mr Walker’s death, and the issues that truly arise.

5. [21]

   Ms Hutchison is guilty of murder if the Crown establishes the elements of murder and disproves self-defence and the accused fails to establish the partial defence of substantial impairment. She might be guilty of manslaughter on four different bases, namely (i) manslaughter by unlawful and dangerous act, (ii) manslaughter by gross or criminal negligence, (iii) killing in excessive self-defence and (iv) on the basis that murder is otherwise established but she establishes the defence of substantial impairment. She is not guilty altogether if the Crown fails (i) to establish the specific intention for murder and that the act or acts were not unlawful and dangerous, or (ii) the Crown fails to disprove that Ms Hutchison acted in self-defence.

6. [22]

   Mr Wilkinson is guilty of murder if the Crown establishes the elements of murder and disproves self-defence. He might be guilty of manslaughter either by (i) unlawful and dangerous act, (ii) criminal negligence or (iii) excessive self-defence. He is not guilty altogether if (i) the Crown fails to establish that he did any act that caused the death of Mr Walker and fails to prove that he was part of a joint criminal enterprise to inflict violence upon the deceased or (ii) fails to disprove that he acted in self-defence.

Onus and standard of proof

1. [23]

   With one exception, the Crown bears the onus of proof and that onus never shifts to the accused. The standard of proof is beyond reasonable doubt. The Crown is not required to prove every disputed fact beyond reasonable doubt. Nor is it required to prove the truthfulness and reliability of any or all of its witnesses beyond reasonable doubt. However, unless the prosecution establishes each and every one of the elements of the offence under consideration, the accused must be found not guilty. This is an extremely high standard of proof, probably the highest devised in any legal system. Even if I suspect the accused are guilty, or believe it is more likely than not that they are guilty, if there is any reasonable doubt on that issue, my duty is to find them not guilty.

2. [24]

   Further, where self-defence arises, the prosecution must disprove or eliminate the defence beyond reasonable doubt. Again, this onus never shifts and is not affected by the manner in which the defence conducts the case.

3. [25]

   The one exception to the axiom that the onus of proof never shifts concerns Ms Hutchison’s defence of substantial impairment. If the evidence establishes the elements of the offence of murder beyond reasonable doubt, and if self-defence is disproved beyond reasonable doubt, the onus shifts to Ms Hutchison to establish the defence of substantial impairment. However, the onus on the accused is to the lesser standard being proof on the balance of probabilities.

Elements of the offences

1. [26]

   To prove the offence of murder, the prosecution must prove beyond reasonable doubt:

   1. (1)

      The accused did an intentional act.

   2. (2)

      The act caused Mr Walker’s death.

   3. (3)

      The act was committed with an intention to kill or inflict grievous bodily harm.

   4. (4)

      The accused did not act in self-defence.

2. [27]

   Grievous bodily harm means really serious injury.

3. [28]

   Alternatively, the Crown might establish murder by omission if it establishes beyond reasonable doubt:

   1. (1)

      The accused failed or omitted to do an act.

   2. (2)

      The omission caused Mr Walker’s death.

   3. (3)

      The accused acted with reckless indifference to human life.

4. [29]

   To prove reckless indifference to human life, the prosecution must prove that the accused realised that Mr Walker’s death was the probable consequence of the act or omission, but continued nevertheless to do the act or omission (that is, failed to act). [11]

5. [30]

   Manslaughter may arise because the liability for one or other of the accused is reduced by reference to a partial defence, in this case either excessive self-defence or (in Ms Hutchison’s case) substantial impairment.

6. [31]

   It may also arise, in the form of what lawyers call manslaughter by unlawful and dangerous act, if the Crown fails to prove the specific intention required for murder but does establish the following elements beyond reasonable doubt:

   1. (1)

      The accused did an intentional act.

   2. (2)

      The act caused Mr Walker’s death.

   3. (3)

      The act was unlawful. Relevantly, this means that the act was not done in self-defence.

   4. (4)

      The act was dangerous in the sense that it carried with it an appreciable risk of serious injury. [12]

7. [32]

   Finally, it may arise if the prosecution establishes manslaughter by gross or criminal negligence. To establish such a case, the prosecution must prove the following elements:

   1. (1)

      The accused owed Mr Walker a legal duty of care.

   2. (2)

      The accused was negligent in that they breached that legal duty.

   3. (3)

      The breach of duty caused the death of Mr Walker.

   4. (4)

      The degree of departure from the standard of care expected was so gross or substantial that it is deserving of criminal punishment.

8. [33]

   Manslaughter by gross or criminal negligence would only arise if I am satisfied beyond reasonable doubt that (i) Mr Walker was still alive when the accused put him in the boot of the car and (ii) obtaining medical help at that time would have saved Mr Walker’s life. The reason for this is that the negligence (or omissions) relied on by the prosecution is the failure to obtain medical treatment, putting Mr Walker in the boot of the car and failing to check on his wellbeing in the hours after they left St Marys on the first occasion. If Mr Walker was already dead, or if medical treatment would not have saved him, these omissions or negligent acts could not be held to have caused his death.

Joint criminal enterprise

1. [34]

   Where two people act together to commit a crime, the principles of joint criminal enterprise or common purpose apply. The Crown asserts that Ms Hutchison and Mr Wilkinson formed a joint criminal enterprise to kill or inflict grievous bodily harm with that intention. If the Crown proves beyond reasonable doubt that there was such a joint criminal enterprise, each of the participants is criminally liable for the acts of the other participants that were within the scope of the joint criminal enterprise. It is essential that the Crown establish both the existence of the joint criminal enterprise and the fact that the particular accused under consideration participated in the joint criminal enterprise. Each of the elements of the crime must be established but it does not matter which of the participants committed each element. Such an agreement need not be express, and may be implied from all of the circumstances.

2. [35]

   In a murder case based on joint criminal enterprise, it does not matter which of the participants committed the act causing death. Provided that the act was within the scope of the joint criminal enterprise, and the elements of murder are otherwise established, each of the parties to the agreement are liable to be convicted of murder.

3. [36]

   In the present case, there is some evidence that Mr Wilkinson was not present when the act(s) causing death were committed by Ms Hutchison. Even if this is accepted, he would be guilty if the evidence establishes beyond reasonable doubt that he was party to a joint criminal enterprise to murder Mr Walker and Ms Hutchison performed the act(s) causing death with the requisite intention.

No reliance on extended joint criminal enterprise.

1. [37]

   The Crown eschewed reliance on extended joint criminal enterprise as that concept has been explained by the High Court. [13] This is of particular significance in Mr Wilkinson’s case, but it is relevant to both cases. In short, the Crown relies on a joint criminal enterprise to kill or inflict grievous bodily harm. It does not rely on a factual scenario whereby, using Mr Wilkinson’s case as an example, (i) Mr Wilkinson was involved in a joint criminal enterprise to unlawfully enter Mr Walker’s home and inflict unlawful violence (short of death or grievous bodily harm), (ii) Ms Hutchison acted outside of the scope of the common purpose and committed the crime of murder (ie caused Mr Walker’s death with intention to kill or inflict grievous bodily harm) and (iii) Mr Wilkinson foresaw the (real, not remote) possibility that Ms Hutchison would kill her ex-husband and do so with intention to inflict grievous bodily harm or to kill.

Causation

1. [38]

   One of the elements common to both forms of homicide is that an act or omission of the accused caused Mr Walker’s death. Causation “is not a philosophical or a scientific question, but a question to be determined by… applying [my] common sense to the facts as [I] find them, [while] appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter.” [14] The question is whether the accused’s act (or omission) caused or substantially contributed to Mr Walker’s death.

Self-defence

1. [39]

   The Crown bears the onus of proof on the issue of self-defence. It must disprove, or eliminate the possibility, that the accused acted in self-defence. It must do so beyond reasonable doubt. [15] In the present case, Ms Hutchison relies on the proposition that any act she did was done in defence of her two children. The prosecution must disprove this. Mr Wilkinson’s primary position is that he did not cause Mr Walker’s death. Insofar as he did any act of violence, it was done in response to Mr Walker’s act of trying to punch him. While it was no part of the positive case that he advanced, it is incumbent on the prosecution to disprove that he acted in defence of Ms Hutchison’s children.

2. [40]

   The law of self-defence in New South Wales is contained in ss 418-423 of the Crimes Act 1900. The relevant provisions are as follows:

3. [41]

   In relation to the offence of murder, if the Crown does not eliminate the possibility (beyond reasonable doubt) that the accused believed that their conduct was necessary, but it does prove beyond reasonable doubt that the response was not a reasonable response in the circumstances as they perceived them to be, the appropriate verdict would be manslaughter.

4. [42]

   In relation the alternative crime of manslaughter (by unlawful and dangerous act), the Crown must prove either that the accused did not believe their conduct was necessary or that the conduct was not a reasonable response in the circumstances as the accused believed them to be.

5. [43]

   When considering self-defence, it must be remembered that a person defending their children (or their partner’s children) “cannot always weigh precisely the exact action which [they]… should take in order to avoid the threat which [they] reasonably believed that [they] faced at the time.” The matter must be considered “in a broad and practical manner, giving proper weight to the situation in which the accused found [themselves], with little (if any) opportunity… for calm deliberation or detached reflection.” [16]

Substantial impairment

1. [44]

   Section 23A of the Crimes Act provides:

2. [45]

   There is no dispute that Ms Hutchison was impaired to some extent by “an abnormality of mind from an underlying condition”. Two highly regarded psychiatrists gave evidence that she suffered from a number of relevant illnesses. While they attached different labels in some instances, I have no doubt she suffered from clearly diagnosable and pre-existing personality disorders including post-traumatic stress disorder, anxiety disorder and severe depression. Both psychiatrists were of the opinion that these conditions impaired Ms Hutchison’s capacity (i) to understand events, (ii) to judge whether what she did was right or wrong, and (iii) to control herself. However, Dr Adams (who was called by the Crown) thought there was insufficient link between the disorders and those three “domains” to elevate the impairment to a substantial one. Dr Nielssen was of the contrary view. Accordingly, the first issue is whether the impairment was substantial. This means the impairment must be of substance and not trivial. [17]

3. [46]

   The second issue is whether the impairment is so substantial that it warrants the reduction of the crime from murder to manslaughter. This is, self-evidently, an elusive test. It has been said that this involves a moral or value judgment based on the application of community standards. [18] The task must be approached “in a broad commonsense way, involving a value judgment by the jury representing the community”. [19] How this applies to a judge sitting without a jury is somewhat perplexing. It has been described as “a quintessential jury issue”. [20] However, in some rare cases, judges are called upon to determine the issue. Like a jury, the judge is required to apply community standards (insofar as they are known) and take into account the nature of the killing balanced against the severity of the accused person’s impairment, and the extent to which their thought processes differ from those of the ordinary person. [21] The question involves the degree to which Ms Hutchison’s abnormality of mind reduces her moral and legal culpability.

Approach to the evidence and the testimony of the witnesses

1. [47]

   The verdicts are to be based on the whole of the evidence. This includes the oral testimony of witnesses as well as the contents of various witnesses’ statements that were tendered, read and not subject to challenge. It also includes the exhibits tendered by the Crown (Ex A – YY) and by Ms Hutchison (Ex H-1 – H-25). This included five statements of agreed facts.

2. [48]

   As to the witnesses, I am able to accept part of what the witness says and reject other parts. However, where a witness has given evidence that is clearly disproved or wrong, it is appropriate to exercise caution in accepting other parts of their evidence.

3. [49]

   Three of the witnesses were children. Their evidence in chief was given by video recorded interviews made before the trial. They were cross-examined from a remote location via audio-visual link (AVL).

4. [50]

   The fact that the evidence was given by AVL has no effect on the weight their evidence should receive. It is the standard procedure by which evidence of vulnerable persons, such as children, is given and I should not draw any inference adverse to the accused because of it. [22]

5. [51]

   The quality of the technology in the courtroom was such that there was no impact on the ability of the Court to assess the demeanour or credibility of the witnesses.

6. [52]

   Even so, the ability of a judge to assess credibility based on demeanour is highly questionable. [23] It is better to set the testimony under scrutiny against facts that are known or proved objectively than to purport to have some uncanny capacity to divine a witness’s honesty and reliability by how they look. As Atkin LJ once said: [24]

7. [53]

   Because this is a criminal case, it is not appropriate to reason that a witness’s evidence is more likely to be true because there is no obvious motive for the person to lie. [25] “People lie for all sorts of reasons. Sometimes it is apparent. Sometimes it is not. Sometimes the reason is discovered. Sometimes it is not.” [26]

Mr Wilkinson’s evidence

1. [54]

   Mr Wilkinson was not obliged to give evidence or to expose himself to cross-examination. Had he chosen not to give evidence, no adverse inference could have been drawn against him. Even so, he elected to give evidence. He is to be given some credit for that. On the other hand, his evidence is to be assessed in the same way as every other witness.

2. [55]

   The fact that he gave evidence and, by so doing, presented a positive defence, does not in any way alter the onus of proof. The onus remains on the Crown. By giving evidence Mr Wilkinson did not undertake to prove anything. However, in determining whether the prosecution has discharged its heavy onus in his case, his evidence must be taken into account. In view of the content of his evidence, he would be entitled to an acquittal if I formed the view that the substantial parts of his evidence might possibly be true and accurate. Having said that, it is not for Mr Wilkinson to establish that his account might be true. Rather, it is for the Crown to prove his guilt beyond reasonable doubt.

Mr Wilkinson’s good character

1. [56]

   Mr Wilkinson raised his good character in a particular respect. He asserted that he has never been charged or convicted of any offence involving violence. He considers himself to be a person of non-violent disposition. This evidence was not challenged.

2. [57]

   Evidence that an accused is a person of good character, either generally or in a particular respect, must be taken into account in determining whether the prosecution has proved its case beyond reasonable doubt. The tribunal of fact must consider that a person of non-violent disposition is less likely to involve themselves in a common purpose to kill or inflict grievous bodily harm and less likely to inflict such harm themselves. Such a person may be less likely to commit, or be a knowing party to, an offence involving unlawful violence.

3. [58]

   Because the raising of good character is limited, it is not necessary to take into account the other part of the traditional “good character” direction, namely that the good character of the accused should be taken into account in assessing their credibility as a witness. [27]

Circumstantial evidence and inferences

1. [59]

   In addition to the direct evidence of what people saw and heard, I am also able to draw rational inferences from the direct evidence.

2. [60]

   While there is a good deal of direct evidence, the Crown also relies on circumstantial evidence to prove its case. The most significant example is that the Crown relies on circumstantial evidence to prove the joint criminal enterprise and also to establish that the accused acted with the specific intention to inflict grievous bodily harm. Another example is that the Crown relies on certain parts of the physical evidence of the crime scene, the content of various text messages, and the timing of events established by CCTV stills and telephone records, to prove what happened inside Mr Walker’s townhouse or to provide support for its case and the evidence of the young boy, Toby Walker (a pseudonym). It relies on the same evidence to undermine the credibility of the accounts given by each of the accused.

3. [61]

   Where the inference sought to be drawn is adverse to the accused, it should only be drawn if it is the only rational inference available. [28]

4. [62]

   When dealing with circumstantial evidence, it is important to take a global or holistic approach, rather than considering the individual items of evidence in a piecemeal fashion. It is often the accumulation of primary facts, rather than any particular item of evidence, that gives strength to the inference sought to be drawn.

5. [63]

   Where an intermediate fact is essential to the process of reasoning toward guilt, that intermediate fact must be established beyond reasonable doubt. [29]

Consciousness of guilt

1. [64]

   A particular type of circumstantial evidence is evidence that the prosecution says establishes that the accused conducted themselves in a way that suggests they knew they were guilty. This includes evidence of disposing of Mr Walker’s body in an isolated area, cleaning up the crime scene at St Marys and lying to Mr Walker’s partner when she arrived outside the St Marys home while Mr Walker was in the boot of the car. The prosecution also relies on Ms Hutchison’s attempt to discourage Mr Walker’s partner from calling the police.

2. [65]

   I have exercised caution in considering the evidence said to demonstrate a consciousness of guilt. It is evidence that can easily be misused. People react in different ways to circumstances such as those confronting each accused following Mr Walker’s death. People panic, people act out of misguided loyalty. As was long ago said: [30]

3. [66]

   Further, where the accused might be guilty of murder or manslaughter (or, in Mr Wilkinson’s case, accessory after homicide) such evidence can be “intractably neutral” in distinguishing between the two forms of homicide or between homicide and some lesser offence. I considered this issue in a pre-trial hearing in the murder trial of Bradley Brooks and will not repeat the survey of relevant cases that I undertook there. [31]

Expert evidence

1. [67]

   Various experts gave opinion evidence. This included the psychiatrists and a forensic pathologist who attended the scene and conducted the post-mortem medical examination. There were also crime scene officers and an agreed statement of facts based on the evidence of forensic biologists who undertook DNA examination of various exhibits and items collected from the two crime scenes (St Marys and Wisemans Ferry) and Bonnells Bay.

2. [68]

   While the qualifications of these expert witnesses were not challenged, I am not obliged to accept their opinions. Their evidence is to be assessed in the same way as other witnesses. Where the evidence is not challenged, or subject to agreement between the parties, I might more readily accept the evidence. However, ultimately it is a matter for the tribunal of fact and not expert witnesses to determine the inferences to be drawn from the direct evidence. Where the evidence is based on assumptions that I do not accept as the tribunal of fact, the opinions should be given little weight.

3. [69]

   One body of opinion evidence that the parties agree I should disregard arises out of the tender of agreed facts relating to the family law proceedings. In that document, there are a number of opinions expressed by a counsellor concerning the mental state and credibility of the parties to the dispute (that is Mr Walker and Ms Hutchison) and the two children who are important witnesses in the present trial. While it is appropriate to take into account the things the children said in those proceedings, as well as the concerns expressed by Ms Hutchison, I have disregarded entirely the opinions as to the credibility of the children (and Ms Hutchison) in determining whether, and to what extent, I should act on the accounts given in the present trial.

Silence

1. [70]

   It seems that neither of the accused spoke to police upon or after their arrest. I assume they exercised their right to silence. Similarly, Ms Hutchison exercised her right not to give evidence in the trial.

2. [71]

   No inference adverse to either accused can be drawn from their failure to speak to police. No inference adverse to Ms Hutchison can be drawn from her failure to give evidence. Their silence cannot be used to fill in gaps in the prosecution case or to bolster the credibility of the account given by witnesses whose evidence is in dispute.

Evidence that may be unreliable

1. [72]

   The parties identified and largely agreed that certain parts of the evidence should be subject to the kind of warning that would be given under s 165 of the Evidence Act 1995. That is, parts of the evidence fall into a category of evidence that the law recognises may be unreliable. In accordance with s 133(3), I must take into account the following warnings that would be given to a jury:

2. [73]

   Bradley Hinchcliffe gave evidence of an admission allegedly made by Mr Wilkinson. He says that a person who the parties agree was Mr Wilkinson told him “they’d bashed someone and put them in the boot of the car”. Counsel sought an unreliability direction on the basis of his drug use and also because he had acquired the deceased’s ‘phone and “cannibalised” it.

3. [74]

   Evidence of an admission may be unreliable. [32] The alleged admission was not recorded in any way and Mr Hinchcliffe did not provide a statement to police until late January 2015, some three months after the event. His account might easily be mistaken, even if he was honestly trying to recall what was said. A simple mistake as to the personal pronoun (“she” instead of “we”) would change the meaning of his account in a significant way in the circumstances of this case.

4. [75]

   Further, Mr Hinchcliffe had smoked what I understand to be a great deal of methamphetamine (20 pipes) before the arrival of the two accused. That activity seemed to have occupied him for most of the day. He agreed that he was “fairly affected” by the drugs although he said that “ice” “doesn’t really affect your memory all that much”.

5. [76]

   Ms Hutchison sought a direction in relation to Mr Wilkinson’s evidence on the basis that he was a person who was criminally concerned in the events giving rise to the proceedings. [33] Obviously, any such warning can only apply in Ms Hutchison’s case. In considering Mr Wilkinson’s case, I must disregard this warning and the fact that he could be seen as having an interest in the proceedings. [34]

6. [77]

   However, counsel agreed that it was appropriate in Ms Hutchison’s case to take into account the fact that Mr Wilkinson was (or might be supposed to have been) involved in the events giving rise to the proceedings. In assessing her case, and her account to the doctors, which is in conflict with large parts of the version given on oath by Mr Wilkinson, I must take into account the fact that Mr Wilkinson may be motivated to minimise his own involvement and lay the blame for all of the fatal violence on Ms Hutchison. The law has long recognised that the evidence of such witnesses may be unreliable.

7. [78]

   It bears repeating that in considering Mr Wilkinson’s case, I must disregard the warning. [35] I must not reason that his evidence should be treated sceptically because he is accused of a serious offence and has an interest in the outcome of the case.

8. [79]

   The version of events given by Ms Hutchison to the two psychiatrists was admitted as evidence of the history upon which their opinions were based. Having been so admitted, it became evidence of the truth of the assertions made to the doctors. [36] That was the stance taken by Senior Counsel for the accused and no submission was made by the Crown that the use of the evidence should be limited in any way. [37] The evidence was not admitted in Mr Wilkinson’s case at all.

9. [80]

   The evidence of what Ms Hutchison said to the doctors is hearsay evidence. The law recognises that such evidence may be unreliable. [38] It was not given on oath, was not subject to cross-examination, and the method of eliciting and recording her account means it is likely to be incomplete.

10. [81]

    It is accepted that it is appropriate to provide a jury with a warning even where the evidence is relied on by, and in some respects favourable to, an accused person. However, any such warning must be tempered to take into account the particular position of the accused in a criminal trial, the presumption of innocence and the onus and standard of proof. [39]

11. [82]

    I will not summarise the whole of the evidence but have considered it all, both as it was adduced and, since reserving judgment, in deliberating over the verdicts in the case of each accused.

Oral evidence, statements and exhibits

1. [83]

   46 witnesses gave evidence in the trial. This included three children who gave evidence by audio-visual link, various police officers, witnesses relevant to the family relationships and allegations of abuse, and witnesses of the events after the assault of Mr Walker. By agreement between the parties, a number of witness’ statements were tendered. The fact that the evidence was adduced in this way does not make the evidence any less important or worthy of less weight. Rather, it simply means that the evidence was not in dispute.

2. [84]

   The Crown tendered 49 exhibits (A – YY) and Ms Hutchison tendered 25 exhibits. Included in the exhibits were a number (5) of statements of agreed facts pursuant to s 191 of the Evidence Act. These documents related to:

3. [85]

   Various exhibits comprised official records (such as hospital records), photographs (of crimes scenes and the post mortem examination), and video clips.

4. [86]

   While most of the evidence is important in its own way, exhibits of particular significance are the schedule of telecommunications (Ex OO and H-11) and stills of CCTV footage (Ex HH, H-5 and H-6). Due to the fallibility of human recollection and the possible unreliability of the witnesses’ perceptions and recollections, these exhibits are important in placing the events in context and provide an accurate and reliable timeline of the events of 20 October 2014.

5. [87]

   The psychiatrists called by each side gave important evidence in Ms Hutchison’s case. This evidence was relevant both to the positive defence of substantial impairment and also the issue of Ms Hutchison’s belief relevant to whether she acted in defence of her children. It also provides her account of what happened.

6. [88]

   Dr Cala (pathologist) also gave evidence of great importance in determining the nature of the assault on Mr Walker. In conjunction with the photographs of the crime scene and the forensic evidence, the pathologist’s findings allow for a reasonable, if imperfect, understanding of what happened in the 20-30 minutes in which Mr Walker was, at least, incapacitated and (I am satisfied) killed.

7. [89]

   Mr Wilkinson gave evidence of great significance, directly and circumstantially, to the issues for determination. He was cross-examined by both Senior Counsel for his co-accused and the learned Crown Prosecutor.

8. [90]

   The foregoing is no more than an overview of the evidence that I have considered in reaching the verdicts in the case of each accused. Compliance with s 133(2) does not require a Judge sitting without a jury to set out all of the evidence or expose every element of the reasoning process. Rather it requires the Judge to set out the findings of fact upon which the verdicts are based. However, as I have said, compliance with the section requires more than simply setting out the principles of law and the findings of fact. The reasons for reaching the verdicts must adequately be explained by reference to the evidence and in the context of the submissions made by counsel. [41] However, nothing much is gained by undertaking a summary of all of the evidence given in the case. [42]

Inspection of the scene where Mr Walker’s body was found

1. [91]

   The Court, along with the legal representatives of the parties, conducted a view of the Wisemans Ferry area. Pursuant to s 54 of the Evidence Act, this is evidence in the case and inferences can be drawn from it. The Court and lawyers met in the car park near a shop that was attended by the accused to obtain food for the children. The convoy then travelled in a generally northerly direction along the Old Northern Road skirting the Dharug National Park to its south and east. Several points were noted along the journey. Finally, the Court stopped on the corner of the Old Northern Road and Mangrove Creek Road and then proceeded the 740 metres to the point where Mr Walker’s body was found.

2. [92]

   The prosecution case is that Ms Hutchison was deeply embittered and motivated by hatred arising from her broken marriage to Mr Walker. The Crown submits that she was disappointed and furious because the Family Court ordered that her two children live with their father (Mr Walker) and not with her. The Crown submits that her assertion that she acted in defence of her children is a sham and that her true purpose was to seriously injure or kill the man who was the focus of her longstanding bitterness.

3. [93]

   Conversely, Ms Hutchison’s case is that her dysfunctional relationship with Mr Walker and her belief that he was a dangerous man, capable of murder, and who posed a real threat to the safety of her children, places her actions on 20 October into a proper context. She says her beliefs were soundly based and justified her actions both in a legal and moral sense. It was submitted on her behalf that her own childhood trauma, and her underlying psychiatric disorders, heightened and exacerbated these beliefs.

4. [94]

   Because this background is so significant to the case presented by each of the parties, it is necessary to go back in time and recount at least a portion of the relevant history. That history begins many years before Mr Walker and Ms Hutchison were married and involves the tragic circumstances in which his first wife died. However, I will commence with the family law proceedings.

An acrimonious battle in the Family Court

1. [95]

   The battle between Mr Walker and Ms Hutchison for custody of their two children traversed five rancorous years. It commenced in June 2007 when agreement led to orders wherein the children lived with the accused, but spent some weekends with the deceased. Similar orders were made by consent in November 2008. In August 2011, her then husband, Nathan Hutchison, assaulted the accused while the children were present in the house. When Mr Walker was informed of this, he commenced to agitate with the Family Court for custody of the children. The battle continued until September 2012 when the Family Court made orders that Mr Walker have sole parental responsibility for both children.

2. [96]

   In the course of the proceedings, court appointed counsellors interviewed the parents and children. The evidence in the present trial included agreed facts based on material that is subject to statutory non-publication orders under the Family Law Act 1975 (Cth), s 121. For that reason, I will make reference to only a small amount of that evidence. I have considered all of it.

3. [97]

   In short, and meaning no disrespect either to the deceased or the accused, both parents were found to be deficient in their care of the children and, in particular, were said to have exposed them to the conflict in the course of the litigation. Both children made it clear that they wished to remain with their mother. The children made allegations, in Ms Hutchison’s absence, [43] that Mr Walker had shown them inappropriate and frightening movies, exposed them to his “ghost hunting” activities and struck the children when he was angry with them. Ms Hutchison expressed fears that her children were being exposed to physical discipline, mockery, pornography, and paranormal activities such as exorcism and ghost hunting.

4. [98]

   The decision of the Court to place the children in the care of their father seems largely to be based on the fact that the accused suffered major depressive episodes and a borderline personality disorder along with the fear that the children were exposed to the domestic violence perpetrated by Ms Hutchison’s then husband.

5. [99]

   The evidence shows that Ms Hutchison loved her children. There is little doubt the Family Court’s decision was devastating to her. Some of her text messages establish that she remained frustrated, disappointed and angry that her children resided with Mr Walker most of the time. The Crown submits that this provided her with a motive for murder and was the backdrop to her creating false scenarios in which the children were being abused. The defence submits that the fact that the children were living with Mr Walker fed Ms Hutchison’s fears that her children were in danger of abuse of the kinds she had complained about in the Family Court.

Obscene and threatening sounding text messages

1. [100]

   A number of text messages demonstrate Ms Hutchison’s fear and hatred of Mr Walker. As far back as 31 July 2013, she called him a “prick” and talked about “a swift drill to the kneecaps” to “incapacitate the cunt for life.” On 28 September 2013 she referred to Mr Walker as “sociopathic” and a “fucktard.” In October 2013 she spoke of Toby “being mindfucked coz April’s [(a pseudonym)] too old” and alleged “the children have confirmed that Brett is abusing them both badly”.

2. [101]

   Taking the messages at face value, by late November 2013 she was contemplating murder. She said “the kids have no hope unless I kill Brett so maybe I should make Bennet do it”. The identity of Bennet was not disclosed in the evidence. In December she referred to the fact (or her impression) that “COCKSPANK IS TRYING BULLY ME”. Ms Hutchison also showed signs of hopelessness. On 18 February 2014 she said “you can tell Brett once I’m gone and tell him his lowlife ex wife was a filthy crackwhore and killed herself coz she was a crazy drugfucked unit”. On the same day she referred to Brett and Bennet as “sociopaths” and “predatory by nature”.

3. [102]

   Text messages of this kind continued up until the date of Mr Walker’s killing. The messages closer in time to the killing are particularly relevant to what happened on 20 October 2014, what motivated the accused and to the issues canvassed later in this judgment. The messages are discursive, emotional and erratic. Some are drafts sent to Mr Wilkinson of proposed messages to be sent to Mr Walker. Others show the sometimes dysfunctional nature of the relationship between the two accused. The messages are probative of Ms Hutchison’s state of mind. They have the capacity to support the Crown’s case on motive and intention but they are also relevant to her beliefs concerning self-defence and her partial defence of substantial impairment.

4. [103]

   A proper understanding of the text messages, the opinions of the psychiatrists and Ms Hutchison’s case require consideration of events even further back in time, including horrible things that happened to Ms Hutchison when she was a child.

5. [104]

   Both psychiatrists were of the view that childhood trauma suffered by Ms Hutchison was relevant to, if not causative of, the mental disorders she suffered at the time Mr Walker was killed. Agreed facts were tendered in relation to events that took place between 1987 and 1991, when the accused was just 9-12 years old. Her step-father, a man called Thomas Lynn, regularly assaulted her indecently. In 2001, Mr Lynn was convicted of eight counts of indecent assault upon a person under the age of 16 years. He pleaded guilty and was sentenced to imprisonment. [44]

6. [105]

   The agreed facts in this trial record that in addition to being indecently assaulted, she was also humiliated by being whipped with a dog collar and leash. Her mother found diary entries about the indecent assaults. Rather than supporting her daughter, she became angry saying that Mr Lynn was a good man. She provided the accused with no emotional or financial support and Ms Hutchison ended up living in communal homes and youth refuges. She was described in documents tendered on the sentencing hearing as having a disrupted life featuring “severe depression, interrupted education, drugs, suicide attempts.” And so on.

7. [106]

   It seems, as is often the experience of the Courts, that Ms Hutchison’s childhood experiences of being a victim influenced her adult relationships. At least one of those relationships was abusive. It is apparent from the family law proceedings that Nathan Hutchison (Ms Hutchison’s second husband) assaulted her in the course of the marriage. That is an agreed fact and was part of the reason that the Family Court ordered that the children live with their father. In a text message dated 6 May 2014, Ms Hutchison alleged that “Nathan beat me and choked me, bullied me, emotionally and mentally tortured me etc”.

8. [107]

   The text messages suggest that Ms Hutchison’s relationships with the deceased and her co-accused were also dysfunctional, possibly largely as a result of her neediness and psychiatric disorders. However, in each case, her text messages showed her to perceive herself as the victim.

9. [108]

   The assertions made by Ms Hutchison in the text messages cannot be tested and must be treated with a degree of caution. However, because they pre-date the killing by months or years, they provide an important insight into her motivations and state of mind and are a backdrop against which the events of mid to late October 2014 are to be judged.

10. [109]

    Mr Wilkinson is 39 years old. He has never been charged with any offence involving violence. He considers himself to be a non-violent man. He was not challenged about these assertions. Mr Wilkinson has been employed – “on the tools” according to his barrister – for most, if not all, of his adult life. Between 2009 and 2013 he was employed as a fitter and machinist at an engineering firm in Maitland. He was involved in repairing plant equipment for power stations; things like turbines, generators and water pumps. The nature of his trade, and the physical work that it involved, is important to a particular factual issue – that is, some photographs of his hands taken the day after Mr Walker’s death.

11. [110]

    His good character, in the sense that he is a man of steady employment who has never before been charged, let alone convicted, of any offence of violence is relevant to a more general issue. That is, it is less likely that a person of such character, and non-violent disposition, would involve themselves in a criminal enterprise to inflict violence. Equally, it is less likely that such a person would himself inflict fatal violence.

12. [111]

    Mr Wilkinson was in a romantic relationship with Ms Hutchison for about a year or 18 months before the events of October 2014. There was not a great deal of evidence about the nature of their relationship although Mr Wilkinson was asked a number of questions as to his knowledge of Ms Hutchison’s personality and temperament. From those answers, and from material in the text messages, it seems the relationship was a rather dependent one. Ms Hutchison was described as impulsive at times and quite thoughtful and considerate at others. Mr Wilkinson agreed she had trust issues [45] and a fear of being abandoned. He was aware of her drug use and of a number of issues in her personal and relationship history. The couple travelled overseas in June and July 2014 and planned to marry. He was the de-facto stepfather of the two children and there is material showing they enjoyed spending time with him.

13. [112]

    The text messages that passed between Mr Wilkinson and Ms Hutchison indicate that the relationship was not without its difficulties. A large number of Ms Hutchison’s text messages, of considerable length and complexity, remained unanswered. There were messages of love, messages of hate or anger; rambling abuse was followed by contrite apology. Many appear to be the unfiltered stream of consciousness of a desperate individual. A reasonably constant theme was the bitterness engendered by her erstwhile relationship with Mr Walker and her ongoing disappointment surrounding her estrangement from her children. Ms Hutchison made threats of suicide, implicit and explicit.

14. [113]

    On 24 September 2014, Mr Wilkinson sent an ultimatum to “get off the drugs and get mental help and I will be there for you all the way”. Ms Hutchison’s responses were needy and desperate. She wrote “I’ll just die here if you want to leave me all alone in the world” and “I have no more strength for this shitcuntery.”

15. [114]

    Ms Hutchison was the prime mover behind the events that unfolded and led to Mr Walker’s death on 20 October 2014. She was motivated by an irrational hatred of her former husband and her fears that he was abusing their children. Mr Wilkinson’s motivation is more difficult to discern. He seems to have been driven by a misguided loyalty, possibly manipulated by guilt engendered by his fiancé. He was motivated, not by hatred, but by something in the nature of love.

16. [115]

    A central dispute between the parties is whether Ms Hutchison held a genuine belief that her children were in any real danger at the hands of Mr Walker. In address, the Crown Prosecutor took a rather strident position on this issue. That is not to say it was incorrect, but the submissions did not really engage with a significant body of evidence that shows that allegations were made over a number of years and to a number of people.

“Person of interest”: the death of Alison Walker

1. [116]

   To understand Ms Hutchison’s concerns for the safety of her children it is necessary, once again, to go a long way back in time.

2. [117]

   On 20 June 1998, Alison Walker fell 80 metres from a cliff near Ebor Falls. She died of multiple injuries sustained in the fall. Alison was Mr Walker’s first wife. Her death was considered to be a tragic accident and it seems that the investigating police did not treat her husband, who was with her at the time of her fall, as a suspect.

3. [118]

   Ms Hutchison and Mr Walker commenced a relationship in early 2000 and were married in August of that year. In 2001 a coronial inquest attempted to unravel the circumstances in which Mrs Walker came to fall. Ms Hutchison attended the inquest. There was evidence of Mr Walker providing inconsistent versions. There was at least some suspicion of foul play. He was considered to be a “person of interest” and the Coroner formed the view that there was evidence capable of satisfying a jury that he had committed an indictable offence (presumably, murder). The inquest was terminated and the matter was referred to the Director of Public Prosecutions (DPP). The DPP decided not to prosecute.

4. [119]

   The couple had two children born in 2002 and 2005. They separated in the middle of 2006 but remained living under the same roof until early 2007. Soon thereafter, Ms Hutchison made allegations to the police that Mr Walker had paid to have evidence destroyed that implicated him in the murder of his former wife. In July 2007, Ms Hutchison commenced to make a statement. The statement included allegations that he had taken racy photographs of her near the scene of his ex-wife’s death and that he had made threats to her that implied he had killed his ex-wife. In October 2007, Ms Hutchison told police that Mr Walker was “a liar and a manipulator and is capable of murder.”

5. [120]

   This Court does not, now, sit to conduct some faux trial of Mr Walker concerning the death of Alison Walker. The evidence on the subject is scanty and Mr Walker died clothed in the presumption of innocence. He was never convicted of any offence around his ex-wife’s death and prosecuting authorities were of the view that there was insufficient evidence even to put him on trial.

6. [121]

   The relevance of this evidence is that it demonstrates that Ms Hutchison had expressed her fears of Mr Walker, and her belief that he was capable of murder, many years before she killed him. This is relevant to the suggestion that her fears and neuroses at the time of Mr Walker’s killing were not genuine and that her defence of substantial impairment and self-defence were convenient excuses for a cold blooded and planned murder motivated by revenge and hatred.

More things in heaven and earth

1. [122]

   I am in no doubt that Mr Walker exposed the children to some strange activities due to his interest in esoteric paranormal activities. I am satisfied that the children told Ms Hutchison about this and that it was a concern to her. This finding is supported by a number of text messages, the agreed facts relating to the family law proceedings and, perhaps most significantly, by the evidence of Raquel Blanco through whom a number of video clips were played. These clips showed (amongst other things) Mr Walker purporting to perform an exorcism as well as a video taken in a disused, decaying psychiatric hospital where Mr Walker and some cohorts were attempting to speak to the ghosts or spirits of past patients of the hospital. To an adult, these clips were more silly than they were scary, spooky or sinister. However, the activities depicted would probably be frightening and discombobulating for a child.

2. [123]

   Ms Hutchison showed Ms Blanco these clips. Ms Hutchison expressed her concern that Mr Walker was involved in “demonology and ghost hunting” and was exposing the children to such activity. Toby agreed that his father had taken him out looking for ghosts and that he told his mother he was “very scared”. April, who was circumspect and cautious in most answers she gave, agreed that she “probably” showed her mother items on the internet relating to Mr Walker’s ghost hunting and demonology activities. Asked if she told her mother that her father had “been including you in this the whole time”, she replied “I’m not sure. Probably, yes.”

3. [124]

   Whether Mr Walker was, in fact, exposing the children to these peculiar activities is not significant in resolving the issues in the trial. I am inclined to accept that he was, at least occasionally, doing so. This makes it more likely that the children complained about it and, again, I am satisfied that they did.

Ms Hutchison’s concerns and her own dalliance with mystical things

1. [125]

   More significant, however, is the fact – as I find it to be – that Ms Hutchison was preoccupied and troubled by these things as she brooded over her separation from, and limited contact with, her children.

2. [126]

   However, in considering this aspect of her concerns, it should be observed that Ms Hutchison also exposed the children, or at least April, to some pretty strange stuff and some unusual ideas. For instance, there is evidence that she considered herself to be a Pagan witch or white witch and that she encouraged or helped April to write spells. More troubling was evidence that she and April made a “voodoo doll” purporting to represent Mr Walker. April was asked to bring some of his hair on an access visit so that this could be incorporated into the doll. Ms Hutchison stuck pins in the doll and later burned it. While it was put to April that this “didn’t happen” this was part of her evidence that I accepted. It was an unlikely thing to invent, April’s responses were firm and clear (unlike a great deal of her evidence), and the detail provided suggested that April was being honest and accurate in her recollection of the incident.

3. [127]

   Even allowing for the fact that Ms Hutchison had her own share of strange beliefs, and shared some of them with her children, I accept that her concerns about the exposure of the children to demonology, exorcism, ghost hunting and similar paranormal activity were real. That this is so is reflected in some of her actions on 20 October 2014 (collecting evidence of the activity) and in a number of her text messages in the weeks and months leading up that fateful day. How those concerns impacted on the events of 20 October 2014 is a more complex question.

Mr Walker’s parenting of Toby and April

1. [128]

   Senior Counsel for Ms Hutchison made it clear from the outset of the trial that the question of whether Mr Walker was, in fact, abusing the children is not the relevant issue. The real issue is whether the children complained of such abuse and whether those complaints – or anything else – caused Ms Hutchison to have such fears for her children that she believed it was necessary to take action to protect them.

2. [129]

   Accordingly, no real attempt was made to establish that Mr Walker was a bad parent, hit the children or otherwise abused them. Some evidence of that nature emerged in the course of Toby’s evidence and in the agreed statement of facts relating to the family law proceedings.

3. [130]

   It should be clear to those reading and listening to this judgment that I make no finding on that issue one way or another. Nor am I called upon to make any such finding.

4. [131]

   There is a deal of evidence that Mr Walker was a good father and loved the two children very much. Photographs showed he provided them with a comfortable home. Teachers from the children’s school, his family, friends, work colleagues, as well as his partner Marayam spoke well of him and raised no concerns at all for his care and concern for April and Toby. He was considered to be punctual, polite and responsible. He is supported and remembered by a loving family, some of whom were called to give evidence in the trial.

Allegations of assault by Toby

1. [132]

   Even so, I am satisfied that Toby made a number of complaints that he had been assaulted by Mr Walker. Whether those complaints were true is impossible to say. Toby has been proven to be an unreliable historian in other respects. His accounts of assaults by his father were disbelieved by his sister and treated with a degree of scepticism in the family law proceedings.

2. [133]

   However, there is a substantial amount of evidence that Toby complained on a number of occasions to different people about being physically assaulted. In the course of the family law proceedings, he said that his father was mean, gets angry and smacks him and his sister.

3. [134]

   Toby told William Price and Mr Wilkinson that Mr Walker strangled him and scratched his feet. Mr Price gave evidence that Toby said to him that he told his teacher but that the teacher didn’t believe him. However, in cross-examination Toby denied telling his teacher about the abuse, and Cecilia Cui (Toby’s teacher in 2014) denied receiving any complaint. Whether or not Toby was assaulted in this manner, and whether or not he complained to his teacher about it, I accept that he complained to Mr Wilkinson and Mr Price, and that his mother was aware of his complaint.

4. [135]

   Toby also told Nigel Stauffer (a neighbour in Bonnells Bay) that he did not want to go back to his father any more. When this was raised with Ms Hutchison, she said that her ex-husband was abusing the children.

5. [136]

   These complaints seemed to reach their nadir in the days and weeks leading up to Monday 20 October 2014. He told Ms Hutchison that his Dad hit him and choked him. He remembered saying that on the weekend before his dad died and “maybe” told her similar things on the weekend of 4 and 5 October 2014. I have no doubt that he did so even though I have grave doubts that he was telling the whole truth. All of the evidence points in the same direction – namely that Toby, for whatever reason, told his mother and others, repeatedly, that he was subjected to some form of physical abuse at the hands of Mr Walker.

6. [137]

   Investigators interviewed Toby on 3 August 2018, that is, very shortly before the trial commenced. [46] In that interview he said that his father “never hit me or choked me”. That assertion was directly contradictory to what he said on 23 October 2014 in his first interview with police. [47] In that interview he said his father “was hitting me then I fell and then I got up again and then he hit me and then I fell again.” He also said Mr Walker “choked me for 30 seconds” while counting “one Mississippi and then up to 30”. He said he “just went all black”. It is very unlikely that he would have told the police these things and not have made similar allegations to his mother a few days earlier. In cross-examination at the trial, Toby agreed that he had told his mother such things on the weekend before his father died.

7. [138]

   In the 3 August 2018 interview, Toby claimed “that my mum was putting ideas in my head, and that I sort of went with it”. He repeated that assertion more than once. However, nowhere in the interview or in the evidence he gave in the trial, was Toby able to explain how Ms Hutchison manipulated him into making false allegations against his father. I am sure that Ms Hutchison repeatedly asked the children whether Mr Walker was neglecting or abusing them. It may even be the case that the questioning was calculated to elicit responses that showed Mr Walker in an unfavourable light. None of that is surprising in light of the history, including her own personal history, and the allegations of abuse made in the family law matter.

8. [139]

   There is no evidence at all that Ms Hutchison put any specific ideas into Toby’s mind. For example, there is no evidence that she suggested to him that his father choked him to the point that he passed out, or that his father hit him so hard that he fell over backwards, or that he scratched his feet. Whether those allegations were true is not to the point but I am satisfied they emanated from Toby and not from Ms Hutchison.

9. [140]

   April agreed in cross-examination (or said “I think so”) when asked whether Toby had complained that his “father had bashed him on the neck, back and skull”. She remembered that Toby “screamed” when Ms Hutchison tried to wash his hair. This occurred on the weekend immediately before the events of Monday 20 October 2014.

10. [141]

    I am comfortably satisfied and accept that Toby complained to Ms Hutchison of being physically assaulted by Mr Walker. I also find that she believed him and was concerned, to the point of preoccupation, that her son was in physical danger. I reject the suggestion that this was no more than a ruse to justify her actions on 20 October 2014. I also reject the suggestion that Ms Hutchison deliberately failed to “reality test” the allegations and should have known that Toby was making things up.

11. [142]

    Those findings do not equate to a finding that Ms Hutchison believed that her conduct on that date was necessary to protect Toby, let alone that her response was a reasonable one from an objective point of view.

Ms Hutchison’s belief that April was also being abused

1. [143]

   The situation with April is more complex and difficult to resolve. There is far less evidence supporting the proposition that April made any contemporary complaint and April either denied that she had done so or said she could not remember.

2. [144]

   Ms Hutchison told Dr Adams that April told her that “she had been physically and sexually abused by [Mr Walker]”. [48] She told Dr Nielssen that her motive in assaulting Mr Walker was to get him to admit what he had done so that he would “go to gaol and be labelled as a child abuser.” [49]

3. [145]

   In the family law case, April made various allegations of physical abuse and said she felt safe when Mr Walker’s parents were around because he didn’t beat her in front of “Nan and Pa”. At one stage she told an independent psychiatrist ([REDACTED]) that Mr Walker slapped her when her “leg flipped back and bone was sticking out.” She also reported that Mr Walker told her to get back in the water and that “they thought I was lying but I wasn’t.”

4. [146]

   At least some of these allegations are patently untrue. However, the fact that they were made, and that Ms Hutchison was aware of them, made Ms Hutchison vigilant in her concerns for the children and prompted her repeatedly to question the children about whether they were being abused.

5. [147]

   There is no evidence that April made any allegations of sexual assault in the course of the family law proceedings. In her evidence in the trial, April gave somewhat contradictory evidence as to what she said and did when her mother interrogated her on this subject. It was put to her that Ms Hutchison directly asked her whether her father “touched her vagina” and that she cried, looked away and said “I can’t tell you”. April agreed her mother had asked her that question but said that she could not remember whether she reacted in the way suggested during the questioning. [50] She was asked further questions about this, and the likelihood that it was something she was likely to remember, and she said “I don’t remember much of things that happened a while ago.” [51] However, when the Crown Prosecutor raised it in re-examination, the following exchange occurred: [52]

6. [148]

   I accept April’s evidence that Mr Walker did not, in fact, indecently assault her. However, I also accept that she gave her mother mixed messages on the subject. Even allowing for her age and the passage of time, it is difficult to accept that she did not remember how she responded to her mother’s interrogation on this extremely sensitive subject. She gave clear evidence that her mother asked her about the subject on a number of occasions. This made her feel uncomfortable. Her evidence was less clear as to how she responded in the course of those conversations.

7. [149]

   Given Ms Hutchison’s own history of sexual abuse at around the same age, the psychiatric sequelae of that abuse, her resentment of Mr Walker more generally, and the absence of any clear denial by April, I accept that Ms Hutchison was inclined to believe, and was somewhat fixated on the idea, that April was being indecently assaulted. April’s repeated response that she did not remember what she said in these conversations suggests at least that she did not deny unequivocally that her father indecently assaulted her.

8. [150]

   Again, this finding does not resolve the issue of self-defence (or defence of the children) but it is obviously relevant to that issue.

9. [151]

   I accept the joint opinion of the two psychiatrists that, on and for some time before 20 October 2014, Ms Hutchison was suffering from a combination of psychiatric conditions. The psychiatrists used different terms for these conditions but, with one exception, the conditions diagnosed were more or less the same.

10. [152]

    I will deal with the exception first. Dr Nielssen included in his diagnosis a “possible psychotic illness”. This was based on “what seemed to be a delusional belief regarding the extent of the abuse suffered by the children”. The possibility that this belief was delusional “stems from the findings of the Family Court and other details about Mr Walker in the various medical records” and the “absence of physical injury”. Dr Adams discounted this possibility. I accept Dr Adams’ opinion on this subject. His review of the records appeared to be more thorough and he specifically questioned Ms Hutchison about some of her “idiosyncratic beliefs” (about other subjects) and it was clear that “she understood that they were not based in reality.” While Ms Hutchison was “hypervigilant” to the possibility of abuse of the children, her concerns were based in reality. They stemmed from things she was told by them and the allegations that were made in the course of the family law litigation.

11. [153]

    Although they used different terminology or labels, the two doctors otherwise diagnosed the same psychiatric issues. Dr Nielssen was of the opinion that Ms Hutchison suffered from substance use disorder, a personality disorder, a chronic depressive illness as well as the possible psychotic illness (which I do not accept). Dr Adams said she suffered from borderline personality disorder, post-traumatic stress disorder (PTSD), likely recurrent major depressive disorder and severe substance use disorder.

12. [154]

    The relevant parts of the diagnostic manual (DSM 5) were tendered. [53] These confirmed Dr Adam’s opinion that Ms Hutchison exhibited the “classical features of a borderline personality disorder” and “the hallmark features of a posttraumatic stress disorder”. He described her “pervasive, persistent and problematic behaviour” and difficulties with “emotional regulation and emotional stability”, fear of abandonment, self-harming behaviour and suicide attempts. In terms of PTSD, she “reported experiencing distressing recollections (both in terms of dreams and flashbacks), emotional disturbance, hypervigilance, avoidance behaviour, anxiety, and panic attacks.” These symptoms arose in the context of her somewhat chaotic personal history “encompassing childhood sexual abuse, severe violent relationships and physical and sexual abuse during adulthood”.

13. [155]

    The psychiatrists were provided with documentation relating to Ms Hutchison’s psychiatric history and this confirmed the diagnoses and demonstrated that her mental health issues were long-standing.

Context

1. [156]

   I have spent a little time surveying these historical matters to place the events of 20 October 2014 in their proper context. I will presently turn to consider those events in some detail. I do not accept unequivocally the direct evidence of either Toby Walker or Mr Wilkinson. I accept some parts of their evidence but each of their accounts is flawed in some significant respects. They are the only witnesses able to give direct evidence of what occurred in Mr Walker’s townhouse and in the hours that followed. In view of my scepticism as to the direct testimony, it is useful to set out the timetable of events that is established by objective evidence. The schedule of telephone calls and CCTV stills are a particularly useful tool in establishing the order and timing of events. To understand the events of 20 October 2014, it is important to take account of things that happened, and things that were said (or written) the day before.

Sunday 19 October 2014

1. [157]

   There are telephone records and messages on 19 October 2014 of real significance to the issues in the trial.

2. [158]

   At 1:07pm, Ms Hutchison called her mother (Jocelyn Learoyd) and then two minutes later texted [54] her:

3. [159]

   A minute later she texted:

4. [160]

   At 1:15pm she called Coffs Harbour Police Station and was on the ‘phone for just short of five minutes. There is no evidence of what was said but it is easy to infer that she was speaking to somebody about the abuse to which she believed Toby was subjected or trying to contact Detective Scott Parker.

5. [161]

   Three text messages over seven minutes (between 2:07pm and 2:14pm) referred to the need to take Toby to Coffs Harbour and specifically referred to the allegation (later made by Toby to the police) that “he chokes Toby unconscious”. She told her mother “he threatened to kill him” and “beat him and choked him worse than ever” and claimed that “bruises only starting to show sat morning.” She said “if brett finds out Toby told he will die,” “help us” and “help the poor babies”. These increasingly desperate texts remained unanswered.

6. [162]

   Later in the day Ms Hutchison wrote similar text messages to both her mother and to Mr Wilkinson. At 6:47pm [55] Mrs Learoyd responded saying that “Det Scott Parker can ring me” because she did not have a landline and it was too expensive for her to call with her “pre-paid phone”. She said “otherwise paul can do it. Anyhow I could not ring you as you blocked my number!” Mrs Learoyd says she spoke on the ‘phone to Raquel that day and that she was speaking very fast and sounded upset.

7. [163]

   From these text messages, and in light of the things that happened the next day, I infer that Ms Hutchison had decided to take some action against Mr Walker when she returned the children on the Monday. The severity of that action only became clear the next day. The idea of removing the children to Coffs Harbour, or making further attempts to contact the police officer she trusted up there, was not further acted upon. The excuse for this was that she could not drive and nobody was prepared to drive her there.

20 October 2014: A timeline, objectively established

1. [164]

   Toby and April stayed with Ms Hutchison and Mr Wilkinson on the weekend of 17-19 October 2014. The arrangement was that they would be dropped at school on Monday 20 October 2014 and that Mr Walker would pick them up after school. April was dropped at school but Toby was not. Toby complained over the weekend that he had been assaulted. Ms Hutchison alleges that he had noticeable injuries. Ms Hutchison told April that Toby could not go to school and needed to be taken to a doctor. However, Toby was not taken to a doctor that day and there is no explanation for this in the evidence. There was evidence that Mr Walker was off from work on Friday 17 October 2014, having told his boss that his son was sick. [56] Rather, Ms Hutchison took steps to find out Mr Walker’s home address and obtained a key from April to allow her to enter his home unlawfully and then lure him there by trickery.

2. [165]

   At 8:39am and 9:05am on 20 October 2014, there were ‘phone calls from Ms Hutchison and Mr Walker to the children’s school. Mr Walker then texted Ms Hutchison complaining that the children had not been dropped at school and there followed an exchange about the correct time to drop them off.

3. [166]

   Based on undisputed parts of the evidence of April, Toby and Mr Wilkinson, it seems clear that April was dropped at school while Toby was taken to Mr Walker’s home. There was a dispute in the evidence as to how Ms Hutchison came to have the key to Mr Walker’s house. Ms Hutchison told Dr Nielssen that April gave her the key. However, April said in her interview that she thought her mother stole her key because “she had no other way of getting the key. I was the only one that she could of gotten the key off.” [57] In cross-examination, April was asked to agree that she had given the key to her mother. She said “I don’t think so” but when asked if she had told her friend Tiffany Johnson (a pseudonym) that she gave her mother the key, she said “I don’t know”. [58] Tiffany gave evidence (in her recorded interview) that April told her that she gave the key to her mother in the morning and admitted “I shouldn’t have done it but I did.” [59] Mr Wilkinson gave evidence that April told Ms Hutchison the St Marys address while he was present. When asked in cross-examination whether she had given the address to her mother or Mr Wilkinson, April said that she couldn’t remember. [60]

4. [167]

   These factual disputes are of no great moment. However, I accept that April told her mother the address of Mr Walker’s townhouse and also gave her the key. The details of the conversation provided by Tiffany had a ring of truth to them. There were text messages from Mr Walker to Ms Hutchison later in the day (at 12:40pm and 12:44pm) when Mr Walker told her the address. This suggests (and I accept) that Ms Hutchison did not know the address first thing on Monday morning but, of course, by 12:40pm, she was already in the townhouse. The only explanation for her knowing the address was that April told her.

5. [168]

   Ms Hutchison did not have Mr Walker’s consent to enter his home and, whether she obtained the key by asking for it or simply taking it from the child’s bag, her entry into his St Marys premises was unlawful.

6. [169]

   Having dropped April at school, Mr Wilkinson drove Toby and Ms Hutchison to the St Marys townhouse. CCTV stills show that Toby and Ms Hutchison arrived a few seconds before 10:30am. The same evidence shows that Mr Wilkinson parked his Ford motor car around 50 metres west. He remained in the car and the two accused exchanged a number of text messages. There were also text messages between Ms Hutchison and Mr Walker. The content of those messages satisfy me of three significant facts. First, Ms Hutchison was determined to lure or trick Mr Walker to attend the premises without him knowing she was inside. Second, Ms Hutchison planned to assault Mr Walker once he arrived home. Third, Mr Wilkinson was aware of her plan, and was playing the role of “cockatoo” or lookout, warning her of cars approaching the premises and, in particular, telling her when Mr Walker arrived home.

7. [170]

   There are a large number of text messages between 10:30am and 1:00pm, when the CCTV shows Mr Walker arriving home in his Holden Astra motor vehicle. The text messages and the CCTV evidence establish an objective chronology of events. At this point it is worth being precise – down to the second – as to the timing. The times recorded are those in exhibits HH and OO. [61] Nobody suggested the CCTV and the telephone records were not both accurate in themselves and in temporal sync with one another.

8. [171]

   Mr Walker arrived home at 1:00:41pm. At 1:01:46pm (that is, one minute and five seconds later) Mr Wilkinson walked up the driveway towards the front door of the townhouse.

9. [172]

   There is no evidence of telephone use or CCTV for the next 23 minutes.

10. [173]

    At 1:25:17pm, Mr Wilkinson was recorded on CCTV leaving on foot and then, at 1:26:37pm (1 minute and 20 seconds later) he returned in his car. It entered the driveway travelling forward (ie bonnet first). The car left at 1:39:37pm (that is, 13 minutes later), again travelling forward. (The only relevance of the car’s direction is that it turned around, off screen, in the space of that 13 minutes.) There is no dispute that by the time the car left, Mr Walker was in the boot of the car while Mr Wilkinson, Ms Hutchison and Toby were in the cabin.

11. [174]

    The group then travelled to a friend of Ms Hutchison at Minto. The only sensible inference is that the purpose of the trip to Minto was to seek assistance from the occupants as to what to do about the body in the boot of the car. The two accused also smoked a small amount of “ice” while they were at Minto.

12. [175]

    At about 3:24pm there were two attempts by Ms Hutchison to call April. The exhibit records the length of the calls as 4 and 2 seconds respectively. At 4:04:00pm Ms Hutchison walked down the driveway at St Marys and then walked back onto the street. She returned to the driveway, heading toward Mr Walker’s townhouse at 4:06:53pm. It seems clear enough that Mr Wilkinson and Toby remained in the car. At 4:09:53pm Mr Wilkinson texted Ms Hutchison: “April & friend”. At 4:13:06pm the CCTV shows April and Tiffany Johnson arrive in the driveway of the townhouse. At 4:15pm the pair returned down the driveway and on to Morris Street and walked to the east. I infer that Mr Wilkinson’s car was parked nearby and to the east of the townhouse complex. Unlike the earlier CCTV stills, where the car was parked to the west of the complex, the car cannot be seen in the stills deriving from CCTV recorded after 4:00pm. Apart from the account given by Toby, who was clearly mistaken on the issue of how and where April was picked up, there is little dispute that Mr Wilkinson then drove Tiffany Johnson home. This was a short time after 4:15pm.

13. [176]

    At around 4:30pm there were various short telephone calls between Ms Hutchison and a witness called Donna Brown. Ms Brown gave unchallenged evidence that Ms Hutchison called her and asked her if she could “pick the kids up.” Ms Brown was unable to do so but she asked her partner, Daniel Greentree, and arrangements were made for Mr Greentree to meet Ms Hutchison and the others at Wisemans Ferry. [62]

14. [177]

    At 4:35pm Ms Hutchison walked up and down the driveway, and shortly before 4:41pm, Mr Wilkinson, April and Toby arrived back at the driveway. April and Toby headed in the direction of the townhouse while Mr Wilkinson turned around and returned to the street. Approximately three minutes later, at 4:43:35pm, Toby and April exited the driveway and again turned right (east) on to Morris Street.

15. [178]

    Just a few seconds later, at 4:43:53pm, Mr Walker’s new partner (Maryam Montagami) arrived on the footpath outside the premises. At 4:44:05pm Ms Hutchison headed up the driveway, turned right on to Morris Street in the direction of Ms Montagami. Ms Montagami gave evidence of the conversation they had. At 5:03pm, Ms Montagami and two colleagues (Concettina Ragusa and Grace Bond) entered the driveway and headed toward the unit. All three gave evidence of what they saw when they entered the unit. Police officers arrived at the premises about 10 minutes later.

16. [179]

    After the conversation with Ms Montagami, Mr Wilkinson drove north to Wisemans Ferry. Ms Hutchison, April and Toby were in the car and Mr Walker was in the boot of the car. There were ‘phone calls between Ms Hutchison and Donna Brown’s mobile telephone at 5:20pm and 5:21pm. Ms Brown gave evidence that Mr Greentree’s ‘phone was out of credit and so he took Ms Brown’s mobile telephone with him. At 5:22pm a text from Ms Hutchison to Ms Brown’s ‘phone said “Windsor way” a further text at 5:31pm said “Head to wisemans ferry old nthrn.” At 5:41pm there was a 43 second ‘phone call between Ms Hutchison and (by inference) Mr Greentree. At 5:56pm there was a text message from Ms Hutchison to Mr Greentree asking “What car u in? we in pauls” and a 56 second telephone call.

17. [180]

    CCTV stills taken from a camera at Wisemans Ferry Bowling Club show Mr Greentree’s Toyota Hilux truck travelling north (towards the punt or ferry crossing) at 6:43:41pm and Mr Wilkinson’s car is directly behind it, captured by the same CCTV camera at 6:43:52pm.

18. [181]

    It is not in dispute that the accused, along with the children, met Mr Greentree on the southern side of Wisemans Ferry. Some food was obtained for the children, then the two cars drove north in a convoy. Mr Greentree then travelled north along the Old Northern Road, and returned the children to Bonnells Bay. Toby gave evidence that he saw his father’s body being dumped into the bushland in the Dharug National Park. This runs contrary to all of the other evidence in the case and is inconsistent with the observations made on the inspection of the scene. I reject this part of Toby’s evidence. It is clear enough that Mr Greentree’s role was to get the children back to the Central Coast while the two accused disposed of the body. There is no credible evidence that Toby saw the accused take Mr Walker’s body out of the boot and put it into the bush.

19. [182]

    Ms Hutchison told Dr Nielssen that she did not dispose of the body and that Mr Walker “was alive when we let him go”. She told Dr Adams that Mr Walker was “not really in a good state” when he was in the boot of the car but that she did not know whether he was breathing. She claimed that “I thought his eyelids were moving” and that it was “hard to tell if he was playing possum or if he was unconscious”. She said when they left him on the side of the [Mangrove Creek] road “I thought he was all right … we just left him and drove home.” I reject this part of her account. Again, it is contrary to most of the evidence in the case including Mr Wilkinson’s evidence, the observations (or lack thereof) of the Minto witnesses, the inferences to be drawn from the failure to look in the boot for something like five hours and, to a certain extent, the pathologist’s evidence of the time of death.

20. [183]

    After Mr Walker’s body was left on the side of the road, Mr Wilkinson and Ms Hutchison drove home to Bonnells Bay. There were calls between Ms Brown’s ‘phone and Ms Huchison’s ‘phone at 8:46pm and 8:49pm.

The pathologist’s findings, evidence and scenarios leading to Mr Walker’s death

1. [184]

   There was no challenge to Dr Allan Cala’s qualifications to provide evidence in relation to his findings and opinions as to Mr Walker’s death. Various scenarios were put to him in the course of his evidence. He also provided a thorough report and photographs of the autopsy were tendered. [63] I have already referred to Dr Cala’s opinion as to the timing of death based on his inspection of Mr Walker’s body at the scene.

2. [185]

   Dr Cala’s post mortem examination disclosed that Mr Walker sustained a large number of significant, and in some instances unusual, injuries shortly before he died. He concluded that the cause of death was “craniofacial trauma and asphyxia” and that “restraint” was a significant condition contributing to death but not relating to the condition that actually caused death. Some of the most significant findings were:

3. [186]

   Injuries to the head and neck. This included something like 16 distinct areas of injuries including bruises, abrasions, scratches, a superficial incised wound and linear abrasions around the throat. None of these injuries required particular force but the significance lies in the number of injuries. The severity of the assault to Mr Walker’s face is demonstrated in photograph 26. A number of these injuries were consistent with having been inflicted by a person wearing a ring. Dr Cala thought that the superficial wound shown in photograph 43 may have been caused by a knife or another sharpened object. Some of the abrasions may have been caused by the face coming into contact with carpet.

4. [187]

   A broken nose. This injury was likely to have compromised Mr Walker’s ability to breath to some extent. This is significant in view of the finding that asphyxia was a cause of death.

5. [188]

   “Electrical type injuries”. Dr Cala undertook a microscopic examination of several linear abrasions and said they were indicative that a low voltage “stun gun” or “taser” was used. Two pairs of these injuries can be seen on Mr Walker’s lower back in photograph 35. Dr Cala said the injuries were equidistant; suggesting perhaps that a two-pronged electrical prod was used. This could have been used to incapacitate the victim or to inflict pain on him. There was surprisingly limited evidence (ie none) adduced by the prosecution as to the kinds of devices that are commercially available. A submission that an object that Toby described as a knife was, in fact, consistent with it being a Taser was (with respect) pure speculation. It was not supported by any evidence adduced at the trial. Even so, these electrical injuries are significant in that they suggest a degree of planning and an intention either to incapacitate Mr Walker or to inflict pain upon him.

6. [189]

   Aspiration into the lungs. Again, the presence of food that was aspirated into Mr Walker’s lungs is very significant in view of the finding of asphyxia.

7. [190]

   Linear marks on the throat and neck. These are depicted in photographs 30-31. These were consistent with the use of a ligature of some kind. Two possible ligatures were located: a white electrical cord and a red and yellow cable used to tie up a dog. The electrical cord was found wrapped in a rug at the premises and had Mr Walker’s blood on it. The cable was found in the bush near Mr Walker’s body. There were a number of features of this injury that suggest the force employed was not extreme. There was no damage to the hyoid bone, a common feature in cases of strangulation. Similarly, there were no petechial haemorrhages. There was some colouration around these injuries that showed Mr Walker was still alive when these abrasions were made. However, there was no underlying bruising which, again, suggests the degree of force was not great. Even so, Dr Cala was of the opinion that the application of the ligature, particularly in combination with other features present on autopsy, would have compromised Mr Walker’s ability to breath.

8. [191]

   There was a faint line of red bruising on the left forearm. Dr Cala said this may have been caused by a piece of cord wrapped around Mr Walker’s wrists.

9. [192]

   A particular scenario was put to Dr Cala by counsel for Mr Wilkinson. The doctor agreed that the scenario was a possible mechanism of death. It involved Mr Walker’s nose being broken, him aspirating food into his lungs and then a ligature applied to his neck with a small or moderate degree of force. The doctor agreed that the application of a moderate degree of force might lead to relatively sudden death because Mr Walker’s ability to breath may already have been compromised by the blockage of his airways from the broken nose and aspiration of food into his lungs. He agreed that the aspiration of food into the lungs was a particularly dangerous condition and, if left untreated for any length of time, could be (or was likely to be) fatal.

10. [193]

    None of the injuries of themselves necessarily support an inference that the accused formed an intention to inflict really serious injury or to kill. However, the sheer number of injuries suggests a sustained and brutal attack. The diversity of the injuries and the fact that some involved the use of a weapon such as a Taser suggest the assault was planned. There is also evidence, not disputed by Ms Hutchison, that she sprayed Exit Mould into Mr Walker’s face. This was presumably calculated to blind him temporarily. The evidence of the pathologist’s findings must be considered with all of the evidence to determine what inferences can be drawn as to the accuseds’ intentions at relevant times.

The trip to Minto

1. [194]

   The precise purpose of the trip to Minto is not really known because neither of the accused provided any cogent explanation for it. It is clear that the accused both consumed a small amount of drugs while they were there. However, I am satisfied that the purpose of the trip was to try to obtain advice or assistance in disposing of the body or, if Mr Walker was still alive, to work out what to do with him. The occupier of the property was a man called Jason (or “Jay”) Burgmann. Although he was present at the scene and spoke to Ms Hutchison, Mr Burgmann did not give evidence in the trial. It would be wrong to speculate as to what he may have said.

2. [195]

   Stephen Oliver was staying at the premises at Minto. Mr Oliver gave evidence that Ms Hutchison told Mr Burgmann “I’m fucked Jay, I need help. This fucking arsehole has been touching my kids.” She went on to say “we bashed him and tied him up and put him in the boot of the car. I don’t know what to do now.” [64] Mr Oliver was not cross-examined and no objection was taken by Mr Wilkinson to the admission of the words uttered by Ms Hutchison, presumably because they were spoken in his presence and/or otherwise were admissible as hearsay or an admission. [65] In any event, no objection was taken.

3. [196]

   Bradley Hinchliffe gave evidence (in his statement) that the male (Mr Wilkinson) had long dreadlocks and blood all over his hands and that the woman (Ms Hutchison) looked like a drug user. He said they were both “pretty edgy and wound up”. He gave evidence (in court) that the man with the dreadlocks said “they’d bashed someone and put them in the boot of the car”. He was challenged in cross-examination about this evidence. It was put to him that the female said those words and he was reminded that in his statement he said “they both said we bashed him and put him in the boot”. He maintained “No. It was the male”. In assessing this evidence, it is necessary to take into account that Mr Hinchcliffe was affected by drugs and was concerned in the events giving rise to the prosecution. His evidence may be unreliable for those reasons. Further, because he gave evidence of an admission, his evidence must be scrutinised with considerable care because the law recognises that unrecorded admissions such as this may be unreliable.

4. [197]

   Mr Wilkinson gave evidence that he did not “overly” know where he was going when he left St Marys for Minto, although he said he had been to the place previously. [66]

5. [198]

   (I interpolate that Mr Oliver said Mr Burgmann lived at 41 [REDACTED] Minto and there was a text message exchange on 28 July 2014 when Ms Hutchison told Mr Wilkinson “44 [REDACTED], minto”. He replied “come on wat r u doing” and she responded “At front door it’s locked”. It may be that the communication on 28 July 2014 refers to the earlier visit to which Mr Wilkinson deposed. However, this was not clarified and not raised in the course of addresses. However, it may provide some support for Mr Wilkinson’s account that he had been to the premises before.)

6. [199]

   Mr Wilkinson denied having a conversation with Mr Hinchcliffe and that he gave Mr Walker’s ‘phone to Mr Hinchcliffe. He said Ms Hutchison was talking to the occupant (that is Jason Burgmann). He said he could not say for sure whether he had blood on him. In the course of cross-examination, Mr Wilkinson said that he did not know why they were going to Minto with Mr Walker’s body in the boot. Nor did he ask. He simply followed Ms Hutchison’s directions. He denied the proposition, put to him by Senior Counsel for his co-accused, that he and Ms Hutchison discussed the possibility that Mr Burgmann may be able to assist them in “holding” Mr Walker while they gathered the evidence they needed.

7. [200]

   Toby was taken to a room where he played a video game (Grand Theft Auto). He claimed to have heard his father cry out. However, he seemed to resile from this evidence and it is contrary to the observations of each of the three adults who gave evidence (either orally or in statement form). I doubt he would have heard his father from within the boot while he was inside the house playing a (perhaps age-inappropriate) video game. I have disregarded Toby’s evidence when it comes to what happened at Minto. He was a young child and probably had little idea what was going on.

8. [201]

   The common ground is that that the accused used a small amount of drugs at the premises. While the defence position is somewhat equivocal, I am satisfied that the purpose of the trip was to seek assistance from Mr Burgmann following the assault (and probable death) of Mr Walker. The proposition advanced by Ms Hutchison in cross-examination that the intention was to have the occupants “hold” Mr Walker there while they obtained the evidence they needed was denied by Mr Wilkinson and otherwise receives no support in the evidence, apart from in the history provided by Ms Hutchison to Dr Adams. I do not accept Mr Wilkinson’s evidence that there was no discussion as to why Ms Hutchison wanted to drive from St Marys to Minto with the nine year old Toby in the backseat and Mr Walker (dead or alive) in the boot of the car. I do not accept that he neither knew nor asked about the purpose of the trip. There is no evidence that either Ms Hutchison or Mr Wilkinson made the trip to obtain drugs. While it was not suggested by either party, it is inconceivable that their need or desire to smoke ice was such that they would drive that distance in the circumstances then prevailing. I find that their use of drugs at the Minto premises was incidental and opportunistic. The true purpose was to seek assistance.

The confrontation with Marayam Montagami

1. [202]

   Once the two accused left Minto they returned to the St Marys premises. Toby was still in the car and Mr Walker was still in the boot. They arrived a little after 4:00pm. Meanwhile, Mr Walker’s partner, Marayam Montagami had been trying to contact him and had become very concerned at his lack of response. Eventually, she decided to drive to St Marys to see if she could find him. Two colleagues from work (Concettina Ragusa and Grace Bond) went with her. The three women arrived a little before 4:45pm. They spoke to both Mr Wilkinson (who was in the street with Toby and April) and Ms Hutchison, who had been inside the townhouse.

2. [203]

   Ms Montagami said she could not see Mr Walker but saw Ms Hutchison closing the front door. She was surprised because “she never had a key” and “was never allowed to come to [Mr Walker’s] house”. She then saw the two children running towards her. She said April “was crying obviously, and Toby had no colour in his face”. She said Mr Wilkinson “grabbed them both, so sort of like hidden them behind himself so I couldn’t see their face” and told her she was “not allowed to talk to them”. Mr Wilkinson denies these things.

3. [204]

   Ms Montagami then asked Ms Hutchison where Mr Walker was. According to Ms Montagami, the following conversation occurred: [67]

4. [205]

   Ms Hutchison, Mr Wilkinson and the two children then left in a car. One of the friends wrote down the details of the number plate. Ms Montagami and her colleagues entered the townhouse. Based on what they saw, they called the police. Ms Montagami gave evidence that a number of items of jewellery seized by police belonged to her.

5. [206]

   Ms Montagami was not challenged by Ms Hutchison as to the conversation although more precise words were put to her. She generally agreed and any discrepancies are no significance. Mr Wilkinson challenged the proposition that he hid the children behind himself. Ms Montagami was cross-examined about this but maintained her account: [68]

6. [207]

   Neither Ms Bond nor Ms Ragusa said in their statements that the male with dreadlocks (Mr Wilkinson) hid the children behind himself. However, they were in the car, contemplating driving off, at the time. Ms Ragusa said the man was sitting on the fence while Ms Bond said he was standing by a car. Ms Bond said that Ms Montagami spoke to both the man and a woman with “straggly hair and skinny [who] looked unwell and haggard” (Ms Hutchison). No submission was made that the evidence of the three women was relevantly inconsistent, that the differences in their accounts were matters of substance, or that the evidence contained in the statements of Ms Bond and Ms Ragusa undermined the credibility of the evidence given by Ms Montagami. While acknowledging the differences in these accounts, I accept Ms Montagami as a witness of truth. I find that her version of events is accurate and reliable.

Physical and forensic evidence, property seized and forensic procedures

1. [208]

   The parties tendered a deal of physical evidence, photographs, reports relaying the results of scientific testing and forensic procedures, and other similar material. None of this material is in dispute. Some of it was adduced in the form of agreed facts. It is unnecessary to detail all of it although it is all relevant, to a greater or lesser extent. I will set out some of the more probative material.

2. [209]

   On 21 October 2014, the day she was arrested, police took photographs of Ms Hutchison’s hands. Her right hand was bandaged and when the bandage was removed, there was significant swelling to the back of her hand. She was wearing two rings, including a prominent and large silver and emerald (coloured) ring, on her left ring finger. [69] The rings were tendered in evidence. [70]

3. [210]

   These are significant items of evidence in light of Dr Cala’s findings of blunt force trauma, scratches and abrasions to Mr Walker’s face and head. Dr Cala was shown the larger ring and gave evidence that the sharp edges of the ring were likely to cause scratching. [71] The second ring also may have caused injury even though it did not have sharp edges. He also said the bruising seen to Ms Hutchison’s hands was consistent with her fists being used to punch somebody, and that the force would have been more than a slight slap with the back of the hand. [72]

4. [211]

   Photographs were also taken of Mr Wilkinson’s hands. [73] The backs of his hands showed some redness and an abrasion (or breaking of the skin) was on the knuckle of the right hand. In cross-examination, Senior Counsel for Ms Hutchison elicited Dr Cala’s opinion that these marks were possibly due to punching somebody in the last 24 hours. [74] However, Dr Cala was rather circumspect as to whether the photographs depicted injuries, noted the quality (blurriness) of the photographs, and raised the possibility that what he was being shown was “an artefact” of the photograph due to the “suboptimal way in which it was printed”. [75]

5. [212]

   A photograph of Mr Wilkinson’s left palm showed three linear red marks. [76] These do not appear to be tricks of the photography or the result of poor colour photocopying. Dr Cala agreed these “are consistent with pulling on a cord of the type you’ve looked at today, that is the red wire one that was in photograph 50-52.” [77]

6. [213]

   In the course of Mr Wilkinson’s evidence, he was invited to, and did, show me his hands. Subject to the marks on his left palm, and allowing for the limitations arising from the quality of the exhibit, his hands looked much the same at the time of the trial as they did on 21 October 2014. He gave evidence that he worked in a job (or jobs) that involved manual labour and heavy machinery. He has callouses on the palms of his hands that were shown in the photographs, were present on 21 October 2014 and, I accept, were the result of manual labour. Dr Cala agreed the injuries to the back of his hands and knuckles (if they were injuries) could be consistent with doing manual work.

7. [214]

   Mr Wilkinson gave evidence that he tried to get his fingers between the cable or cord and Mr Walker’s throat when Ms Hutchison had the cable around Mr Walker’s neck while standing behind him. [78] He said he put his “fingers under the cord and told her stop”. He demonstrated this by using the index and middle fingers of his right hand. He said it could have been four fingers. He confirmed that he used his right hand when doing this. [79] The photographs of his palm showing the marks are photographs of his left hand. [80] The Crown did not put to Mr Wilkinson that he used either the cord or the cable as a ligature during the assault of Mr Walker. Senior Counsel for Ms Hutchison put that he was “personally involved in using both”, but it was unclear how he had allegedly used them.

8. [215]

   On 21 October 2014 police executed a search warrant on the premises at Bonnells Bay. They located a number of items that had been taken by the accused from Mr Walker’s townhouse. This included a number of items of jewellery that were later identified as the property of Ms Montagami. It also included a green duffle bag that contained books on paranormal activities such as “flying saucers”, laptop computers, a Sony video recorder and a holy water sprinkler.

9. [216]

   The Crown tendered an agreed statement of facts summarising the DNA results of forensic examination of a number of items of evidence. [82] Again, it is not necessary to summarise the whole document or all of the findings. The agreed facts were signed by the Crown Prosecutor and counsel for both accused. It should be read in conjunction with the photographs of the relevant scenes of the crime, although those photographs are not of sufficient quality to get any real idea of the quantity of blood at relevant locations.

10. [217]

    Mr Walker’s blood [83] was found in various locations at St Marys. This included in the driveway, at the front door, in the lounge room, on the carpeted stairs to the bedrooms upstairs, on the timber handrail on those stairs, on the kitchen floor, on the door to the garage, on the sole of some “joggers”, on a rug found in the garage (but which came, I think, from the lounge room) and on an extension cord. The statistical degree to which this blood is consistent with Mr Walker’s varies, but there was no issue taken that it was his blood. This evidence suggests that the location of the assault on Mr Walker moved throughout the townhouse and is consistent with the altercation starting on the stairs and moving down into the lounge room and perhaps the kitchen. The blood could also have been transferred from location to location by other means or could have been deposited when Mr Walker’s body was moved. Those latter scenarios are likely to account for the bloodstains on items in the garage and the door to the garage.

11. [218]

    Mr Walker’s blood was located on items at Mangrove Mountain (where his body was found). This included on “wire” and clips and fasteners attached to the wire. No submissions were made about this and the significance of this evidence is unclear. It does not establish that the “wire” was used in the assault and could have been transferred to the wire in the course of moving or depositing the body.

12. [219]

    Various findings were made as to items located at the Bonnells Bay premises where the two accused lived. Ms Hutchison’s DNA was recovered on a knife but this proves very little and certainly does not support a rational or safe inference that the knife was used in the assault. Mr Walker’s DNA was located on various items seized at Bonnells Bay including items of clothing and an “Eco” shopping bag located in a bin. This is consistent with those items having been taken from St Marys or from some kind of transfer when Mr Walker was in the boot. No submissions were made about this.

13. [220]

    DNA was recovered from Mr Wilkinson’s car. DNA likely to be a mixture of Mr Walker and Mr Wilkinson was located on the steering wheel and gear stick. If this was Mr Walker’s DNA, it is likely to have been transferred by Mr Wilkinson. This evidence is not significant in terms of the disputed facts. Mr Walker’s DNA was recovered from the boot and the area around the boot. This is consistent with what is known and undisputed – that for many hours Mr Walker was in the boot of the car.

14. [221]

    DNA was recovered from Mr Wilkinson’s hands. The most certain and significant findings were of Mr Walker’s DNA being located on Mr Wilkinson’s right middle finger and left thumb. All this can really establish is that Mr Wilkinson touched Mr Walker, a matter that is not in dispute.

Toby’s evidence

1. [222]

   Toby Walker is the son of Mr Walker and Ms Hutchison. He gave evidence of things he saw, heard and did on 20 October 2014. He was inside the townhouse at the time of the events giving rise to Mr Walker’s death. He was also present in the car when it went to Minto, returned to St Marys and then travelled north to Wisemans Ferry. He made four recorded interviews with police and these were tendered as his evidence in chief in the trial. He was cross-examined. I have already referred to some of the things he said, before and after the killing, in relation to allegations that his father assaulted him. Toby was born in April 2005 and was nine and a half years old when his father was killed. His first two interviews were conducted days and weeks after that event. [84] His third interview was conducted on 3 May 2016 when he was 11 years old. [85] His fourth and final interview was conducted on 3 August 2018, just 12 days before he gave evidence in the trial. [86] By then he was about 13½ years old.

2. [223]

   I must not proceed on the basis that his evidence is unreliable because he is a child. [87] Nor did any party seek a direction that his evidence may be unreliable for any particular reason. [88] However, both of the accused made submissions concerning his reliability and, in particular, submitted his evidence was clearly wrong in certain respects. I accept that, in relation to some matters, Toby gave convincing and rather detailed evidence about seeing and hearing things that he did not see or which did not happen. For example, he agreed in cross-examination that he was wrong to say they picked April up from school. He also said, while they were at “Jay’s house” at Minto, that he saw his father in the boot of the car, that he heard his father screaming, and that the accused punched him again. I am certain that none of those things actually happened.

3. [224]

   He said that he saw the accused “drop off” his father in the bush at Dharug National Park. He could not have seen this. The location of Mr Walker was some distance down the dirt road known as Mangrove Creek Road. There is no credible evidence that Mr Greentree’s car, in which Toby was by then travelling, turned down that road. April gave evidence that once the children got into Mr Greentree’s car, they drove straight back to the central coast. Toby’s description was clearly a confabulation. He agreed in cross-examination that he was told before the interview that his father was left in Dharug National Park and that he made a number of conclusions from what he had been told and what he had actually seen. [89] He agreed (contrary to what he said in his interview) that he had not actually seen his father being beaten in the bush and had not seen his father on the ground in the bush. That was “a conclusion I thought of in my head”. In the course of her address, Senior Counsel for Ms Hutchison played a portion of Toby’s interview in which he gave a convincing and detailed account of things he did not actually see.

4. [225]

   Earlier in this judgment I referred to the dramatic change in his account of being physically assaulted by his father. This is another area where the inconsistencies in his evidence must impact on a proper assessment of his credibility.

5. [226]

   In spite of the justified attack on his credibility, the accused (particularly Ms Hutchison) placed reliance on some aspects of his evidence. The Crown did not confront the kinds of inconsistencies and credibility issues that I have just been addressing. Its submission seemed to be that I should act on Toby’s evidence with little, if any, reservation. I cannot accept that submission. Because of the significant flaws in some parts of his account, I have exercised considerable caution in acting on Toby’s evidence. While I am sure he was doing his best to tell the police and the Court the truth as he believed it to be, I have reservations as to the accuracy of his evidence even just a few days after the events. At least some of those recollections are clearly wrong.

6. [227]

   His evidence remains very important because he was unquestionably present at the time of the events in the townhouse, although he was initially (at least) asleep in a bedroom upstairs. I am satisfied that Toby saw and heard some significant things and that his evidence is accurate and reliable in respect of some of those things. It is safest to act on his evidence where it receives support in other parts of the evidence.

7. [228]

   Without making any final determination, some of Toby’s more significant observations or assertions in the first part of his first interview are as follows:

8. [229]

   The precise sequence of events is a little confusing and difficult to follow. It is hard to know which parts of the event he saw or heard, and which parts he (may have) reconstructed or assumed. It was obvious in the second half of the interview that Toby’s ability to concentrate was exhausted. He repeatedly said “that’s all I know of Monday”.

9. [230]

   The subsequent interviews did not clarify what happened, or what Toby said happened, inside the townhouse.

10. [231]

    Further evidence emerged in the cross-examination by Senior Counsel for Ms Hutchison:

11. [232]

    Counsel for Mr Wilkinson established in cross-examination that there was one part of the interview during which it is hard to know when Toby could have seen Mr Wilkinson inside the house during the assault at all. [90] However, on Mr Wilkinson’s own account, there was such a time and Mr Wilkinson did at one stage strike the deceased (albeit, he says, once and in self-defence). The real issue is the extent to which Mr Wilkinson joined in the assault.

12. [233]

    In the course of this cross-examination, Toby said “I saw Mum punching first, then Paul joins in after” and that he “heard first and then I saw.” He was challenged on parts of his interview that seemed to suggest that he “just heard hitting” – ie he did not see it.

13. [234]

    In re-examination, he said he saw Mr Wilkinson “come in and join in and punch” Mr Walker on “the upper back” but he could not say “the exact number of punches.”

14. [235]

    I would not act on Toby’s evidence standing alone in view of the confusion surrounding the details. However, I take his version of events into account along with the other evidence to determine what is established beyond reasonable doubt and what is not. I am satisfied that parts of his evidence are both truthful and accurate.

Mr Wilkinson’s evidence

1. [236]

   Mr Wilkinson gave evidence. He was under no obligation to give evidence, and having chosen to so, was not required to prove anything, let alone his innocence. As with all of the witnesses, I can accept or reject Mr Wilkinson’s evidence in whole or in part. However, even if I reject the whole of his evidence, the prosecution still bears the onus of proving his guilt beyond reasonable doubt. His evidence is to be evaluated in the same way as other evidence in the case. In Ms Hutchison’s case, Mr Wilkinson’s evidence is subject to the warning that his evidence may be unreliable because he might have been criminally concerned in the events giving rise to the proceedings. I must disregard this warning in Mr Wilkinson’s case.

2. [237]

   Mr Wilkinson gave evidence across two days. Upon leave being granted to re-open his case, he was recalled briefly to give evidence relevant to his good character on a third day. [91] I will not attempt to summarise all of his evidence, and will not go into any real detail of the cross-examination undertaken by Senior Counsel for Ms Hutchison and the Crown Prosecutor.

3. [238]

   The crux of Mr Wilkinson’s evidence was that he was never part of a joint criminal enterprise with Ms Hutchison to kill or inflict really serious injury upon Mr Walker. Apart from punching him once on the ear after Mr Walker swung his hand back at him, he was not involved in, and largely not present during, the assault on Mr Walker. On his evidence, Mr Wilkinson’s main role was to be Ms Hutchison’s driver. When the physical altercation occurred, he attempted to break up the two combatants.

4. [239]

   Mr Wilkinson worked as a shift worker for an engineering company in Maitland from 2009 to July 2014. He would work 12 hour shifts and had an hour commute between Maitland and Bonnells Bay, where he lived. To cope with the long hours, Mr Wilkinson used methamphetamine. He said he used about point one of a gram per day. In July 2014 Mr Wilkinson lost his job and in the lead up to 20 October 2014 he was working on the ‘phones for Ms Hutchison’s company and assisting his mother who was diagnosed with acute leukaemia.

5. [240]

   I have already canvassed the nature of his relationship with Ms Hutchison. Mr Wilkinson had a good relationship with Ms Hutchison’s children. He gave evidence that Toby was at his house every second weekend for the year and a half prior to 20 October 2014. Because Ms Hutchison couldn’t drive, Mr Wilkinson would drive the children back and forth to Sydney.

6. [241]

   Between 9:00am and 10:00am on Saturday 18 October 2014 Mr Wilkinson said that Ms Hutchison asked Toby to repeat an allegation he had just made against his father. Toby told Mr Wilkinson that his father punched him in the back and strangled him until he blacked out. Toby had not previously made allegations of that nature to Mr Wilkinson.

7. [242]

   Mr Wilkinson said he understood that both children were to be dropped at school on 20 October 2014. However, Toby was not taken to school because he had injuries and a sore ear, and Ms Hutchison wanted to question Mr Walker. After dropping April to school, Mr Wilkinson said he drove to the address at St Marys and dropped Ms Hutchison and Toby at the driveway before parking his car about 100 metres from the house. Mr Wilkinson said they arrived at the house around 10:00am which is generally consistent with the CCTV footage that shows Ms Hutchison and Toby arriving at 10:29am. Mr Wilkinson said that his understanding was that Ms Hutchison and Toby were going inside to collect some clothes and to have a conversation with Mr Walker about the abuse.

8. [243]

   Mr Wilkinson stayed in his car after arriving at St Marys. Mr Wilkinson was taken to various text messages between himself and Ms Hutchison sent while he was waiting outside. He was asked about a text message at 11:22am in which he said: “Black ute coming in”. Mr Wilkinson said that this message was a response to Ms Hutchison’s earlier text asking “whats that noise”? I do not accept that the message was in reply to the earlier message because there is a delay of something like 30 minutes. I am satisfied that Mr Wilkinson was keeping a look-out so that he could tell Ms Hutchison when Mr Walker arrived home. Mr Wilkinson himself gave evidence that he was waiting for Mr Walker to arrive home and sent a text to Ms Hutchison at 11:34am saying “Gotta keep watch”. When asked why he did not comply with a request from Ms Hutchison to come inside, Mr Wilkinson said it wasn’t his house and “it was between Raquel and Brett. It’s none of my business.” [92] That answer is difficult to reconcile with the events that followed.

9. [244]

   When Mr Walker arrived home, Mr Wilkinson said he got out of the car and went to meet him at the front door. Mr Wilkinson asked him about the abuse of Toby, and Mr Walker denied assaulting his son. Mr Wilkinson said the conversation went back and forth “for about 5 minutes” although he gave very little detail of what they were talking about. When Mr Walker let himself in to the house, Mr Wilkinson said he waited outside. He then heard an argument between Ms Hutchison and Mr Walker. He said that he could not see clearly what was going on from outside the door but heard the argument get “extremely loud” and the sounds of people hitting each other. Mr Wilkinson said he went inside to break up the physical fight. As he was attempting to do this, Mr Walker swung his hand backwards at him and Mr Wilkinson struck Mr Walker above the left ear in response. He then pulled him and Ms Hutchison apart.

10. [245]

    After they were separated, Mr Wilkinson said the conversation continued between Ms Hutchison, Mr Walker and himself. Mr Wilkinson again asked whether the allegations of abuse made by Toby were true. The argument lasted for five to ten minutes and at this time Mr Wilkinson observed Mr Walker’s face to be bloodied and his nose injured. During the course of the argument Ms Hutchison “went for” Mr Walker again which Mr Wilkinson stopped.

11. [246]

    Mr Wilkinson gave evidence that Mr Walker said “I admit that I’ve hurt him” and that Mr Wilkinson believed that he had recorded this admission on his mobile telephone. He claims to have told Mr Walker and Ms Hutchison that they were taking the recorded confession to the police station. At this point, Mr Wilkinson said he left the premises to get his car which he drove down the driveway to Mr Walker’s townhouse. If Mr Walker was not by then seriously injured, as Mr Wilkinson claims, [93] it is difficult to know why it was necessary to bring the car to transport him. Mr Walker could have been cleaned up and the three could have walked to the car. This is part of Mr Wilkinson’s account that I am unable to accept.

12. [247]

    When he returned to the townhouse he saw “Raquel with a cord around Brett's neck.” They were on the lounge room floor and Ms Hutchison was behind Mr Walker who was “getting choked” with the cord wrapped or looped around his neck. Mr Walker’s face was “extremely red”. [94] He told Ms Hutchison to stop it and, when she didn’t, he put two or more of his fingers between the cord and Mr Walker’s neck to try and loosen the cord: [95]

13. [248]

    Mr Wilkinson said that, once the cord was loosened, Mr Walker fell straight down sideways and then onto his back. [96]

14. [249]

    Mr Wilkinson said that he “panicked” and that he and Ms Hutchison carried Mr Walker to the boot of his car. Mr Walker was placed on his side and the boot was closed. Ms Hutchison went to get Toby. To that point, he had not seen Toby in the house and Mr Wilkinson said it was not possible that Toby saw his father in the boot of the car. [97]

15. [250]

    Mr Wilkinson drove the car to the house of “one of Raquel’s friends” (at Minto). Mr Wilkinson denied the conversation alleged by Bradley Hinchliffe. Nor did Mr Hinchcliffe take Mr Walker’s ‘phone from him. Mr Wilkinson said at no point did he have Mr Walker’s phone. He denied saying anything at Minto about bashing a man and putting him in the boot. He said that he heard Ms Hutchison talking to Mr Burgmann although he did not know what they spoke about.

16. [251]

    He drove back to St Marys and Ms Hutchison went inside. Mr Wilkinson drove Tiffany Johnson home and returned to the townhouse. He did not participate in the clean-up of the premises and did not steal any property. He denied having any discussion with Ms Montagami.

17. [252]

    He then drove to Wisemans Ferry. Initially he said he did not know why they went there and that he took direction from Ms Hutchison. After the children got into Mr Greentree’s car, he and Ms Hutchison drove north (“turned right off the ferry”). Ms Hutchison said “I want him out of the car”. He drove down a road “some distance” and Mr Walker was taken out of the car. He was not moving. They then drove on to Bonnells Bay.

18. [253]

    Mr Wilkinson said he had attempted to record Mr Walker making the admission to assaulting Toby and thought that he had done so. However, he realised that night that there was only “white noise” on the recording and the video was deleted.

19. [254]

    The next day he was arrested.

20. [255]

    Broadly speaking, the cross-examination by Senior Counsel for Ms Hutchison traversed two main areas. First, there was cross-examination about Ms Hutchison’s concerns for the children. Second, a number of propositions were put to Mr Wilkinson to the effect that he was more involved in the events of 20 October 2014 than he was saying.

21. [256]

    Mr Wilkinson agreed that Ms Hutchison had expressed the view that Mr Walker was sexually interfering with April, that she was concerned for Toby and scared that Mr Walker might kill him. She also said there was no point in going to police because Mr Walker would simply deny it and that she had “done everything I possibly can but no-one believes them”. He also agreed that Ms Hutchison was taking a lot of drugs in the lead-up to the events but that she took less drugs when the children were around.

22. [257]

    As to the events themselves, he denied most propositions that suggested he was part of the planning. He agreed that he had never seen Ms Hutchison with a Taser or similar weapon. He denied punching Mr Walker and telling him to confess and said he was “being mediator”. He denied yelling at him. He did not accept a particular proposition about the way Ms Hutchison put a white electrical cord around Mr Walker’s neck and pulled on it. He denied seeing her using either the white electrical cord or the red and yellow cable to restrain or choke Mr Walker when he was first inside the house. He said the first time he saw this was when he returned after getting the car. It was put to him that “he was personally involved in using both of them” (that is the cord and the cable). He denied this.

23. [258]

    In cross-examination, the Crown Prosecutor challenged (economically but skilfully) a number of aspects of Mr Wilkinson’s evidence. I will not attempt to do the interrogation justice by summarising it all. Some matters that emerged in the cross-examination included:

24. [259]

    I will now set out my findings of fact based around the questions and issues that arise for determination. These findings are based on all of the evidence and my reasons are disclosed in the foregoing analysis of the evidence and/or in the short reasons provided below. The judgment should be considered as a whole.

Was Mr Walker dead when he was placed in the boot of the car at St Marys?

1. [260]

   I have already indicated that I reject Ms Hutchison’s account that Mr Walker was still alive when he was left on the side of the road north of Wisemans Ferry.

2. [261]

   I think it most likely that Mr Walker was already dead when he was placed into the boot of the car at St Marys. If he was not, he died a short time thereafter and certainly well before his body was deposited on the side of Mangrove Creek Road. There is no credible evidence that he was still alive after he was put in the boot of the car. While Toby initially said that he heard his father’s voice when he was at Minto, this evidence was not credible. Toby was inside the house, playing a video game called “Grand Theft Auto” at the time. He may have heard something that he thought was his father, but I am satisfied he did not actually hear him. Nobody else at Minto suggested they heard Mr Walker cry out.

3. [262]

   Mr Wilkinson’s evidence is that he saw no signs of life from the time he re-entered the townhouse (at about 1:26pm) and Mr Walker slumped from a seated or kneeling position to the floor. Mr Wilkinson carried Mr Walker to the car and then got him out of the car at the location the body was dumped. Whether or not this was done with Ms Hutchison assistance (which seems likely), if there any signs of life, Mr Wilkinson would surely have noticed them.

4. [263]

   Dr Cala’s opinion was that Mr Walker had been dead for at least 12-24 hours when he examined the body at 1:30pm on 21 October 2014. While that does not exclude the possibility that Mr Walker was still alive when he was placed in the car at around 1:30pm the previous day, the opinion is relevant to that question.

5. [264]

   Further, if Mr Walker was still alive, it seems extremely unlikely that the two accused would not look into the boot of the car in the five hours between 1:30pm (when they put the body in the car) and 6:45pm (when they deposited the body on Mangrove Creek Road). Their conduct was callous, and I do not suggest they would have done so out of any sense of decency or concern, but if Mr Walker was still alive, they would surely have checked in the boot to see if he remained restrained and no longer a threat. This is just one matter pointing in the direction of a conclusion that Mr Walker was dead when he was placed in the car. Further to this, the visit to Minto was risky if Mr Walker was still alive. There was at least some chance that the occupants would have insisted on opening the boot of the car and insist on Mr Walker being taken to a hospital or similar. Equally, there was a risk that Mr Walker would call out for help.

6. [265]

   There is also the fact that the accused did not take Mr Walker to a police station, their stated intention if he made a confession to abusing the children (as they say he did). While he may have been too messed up and bloodied to take him to the police station, it would have been possible to have cleaned him up, presented the police with the evidence they had gathered at St Marys (including what they believed at the time was a recorded confession) and have Toby repeat his allegations to the police. One explanation for them not doing this was that they knew that Mr Walker was dead.

7. [266]

   The whole of the evidence, and the inferences that can logically be drawn, satisfy me that Mr Walker was probably already dead when he was placed in the boot of the car. This is not a matter upon which I need to be satisfied beyond reasonable doubt in relation to the Crown case based on specific intention.

8. [267]

   However, this finding means that neither murder based on reckless indifference to human life, nor manslaughter by gross criminal negligence, has any further role to play. The Crown agreed that those forms of homicide could only be established if it was proved (beyond reasonable doubt) that Mr Walker was still alive when he was put in the boot of the car.

Act or acts causing death

1. [268]

   Whether he died before being placed in the boot of the car, I am satisfied beyond reasonable doubt that the actions of one or both of the accused caused Mr Walker’s death. I am satisfied that he died, essentially, of asphyxia from a compromised ability to breathe arising from the combination of having his nose broken, aspirating food into his lungs and having a ligature applied to his throat.

Was Mr Wilkinson directly involved in the assault of Mr Walker beyond throwing one responsive punch?

1. [269]

   I am satisfied beyond reasonable doubt that Mr Wilkinson played more of a direct role in the assault of Mr Walker than he admitted in his evidence. I am satisfied beyond a reasonable doubt that his evidence that he threw only one responsive punch was false. I accept the Crown Prosecutor’s submission that it is a “very unlikely coincidence… that… the act causing death took place just before he walked into the house on the second occasion.” [98]

2. [270]

   More importantly, I cannot reconcile Mr Wilkinson’s evidence on this issue with the CCTV evidence that shows that he was present in, or just outside, the townhouse for a period of around 23 minutes before he left to get the car. While his evidence purported to account for a large part of this period, his evidence of what happened is vague and his version of events is unlikely. I reject the implication in his evidence that Mr Walker was generally fine when he left to get the car and the proposition that Ms Hutchison caused the major injuries in the 1 minute and 20 seconds it took Mr Wilkinson to get the car. In reaching this finding, I have taken into account Toby’s evidence that Mr Wilkinson joined in the assault and the evidence of what was allegedly said at Minto. The language employed was suggestive of a joint assault. I have taken into account the potential unreliability of Mr Hinchcliffe. It is the cumulative impact of the evidence, rather than one particular part of it, that leads me to conclude that Mr Wilkinson’s role in the physical violence was more significant than he would have the Court believe.

Was Ms Hutchison responsible for most of the violence?

1. [271]

   Even so, it is not possible to know precisely what role Mr Wilkinson played in the assault. I am satisfied that Ms Hutchison committed most of the acts of violence. This finding is based on a number of aspects of the evidence. These include the things she said before 20 October 2014 which prove her great hatred of Mr Walker and the evidence of the psychiatrists that her ability to control herself was compromised by her psychiatric conditions. It is also based on Toby’s evidence of his mother’s actions, the extent of the injuries to her hands and Dr Cala’s evidence that the rings she was wearing could have caused particular types of injury.

2. [272]

   Considering all of the evidence, including the evidence of Mr Wilkinson’s non-violent character and disposition, I have no doubt that Ms Hutchison was the major aggressor in the assault on Mr Walker.

What was the purpose of entering the house and luring Mr Walker there?

1. [273]

   I do not accept (beyond reasonable doubt) the Crown’s primary contention that Ms Hutchison’s stated concern for her children was nothing more than a falsehood perpetrated to justify, or to provide a convenient excuse for her plan, to enter Mr Walker’s house with intent to kill or seriously injure him. The evidence of the text messages to her mother on 19 October 2014, her attempt to contact the police at Coffs Harbour and the clear evidence that Toby (at least) had directly complained about being physically abused by their father militate against this contention. I accept that she was angry at the outcome of the Family Court proceedings, but that occurred some two years earlier and there was no evidence of violence during that time. Something happened on the weekend of 18-19 October 2014 and I am satisfied it was Toby’s ongoing complaints (whether they were true or false) that his father had seriously assaulted him.

2. [274]

   I accept that Ms Hutchison’s ill-formulated plan was to attempt to obtain evidence of Mr Walker’s malfeasance and what she believed to be his poor parenting of the two children. I find that she was prepared to, and intended to, inflict violence upon Mr Walker to extract a confession from him.

Was there a joint criminal enterprise to kill or inflict grievous bodily harm before the two accused entered the house?

1. [275]

   I am unable to conclude beyond reasonable doubt that there was a joint criminal enterprise to kill or inflict grievous bodily harm before Ms Hutchison entered the townhouse. In reaching that conclusion I placed particular emphasis on the evidence of Mr Wilkinson’s non-violent disposition and the lack of any particular injury, or use of any particular weapon, that would ordinarily inflict fatal or really serious injury. I have also borne firmly in mind the high standard of proof cast on the prosecution.

2. [276]

   The question of what then happened inside the townhouse, and what intention each of the accused formed individually or jointly, is a different one. However, because the Crown specifically abandoned the possibility that either or both of the accused might be guilty by what is known as extended joint criminal enterprise, it is important to give effect to this finding that whatever happened inside the townhouse, the original agreement did not involve killing or the infliction of grievous bodily harm on Mr Walker. Or, more correctly, I am not satisfied beyond reasonable doubt that there was such an agreement.

What was the original agreement?

1. [277]

   I am satisfied that the original agreement was to enter the house unlawfully, to lure Mr Walker there, to ambush him, and to extract a confession by means of violence. There is overwhelming evidence in support of this conclusion. This includes the text messages in the hours before Mr Walker died that passed between Ms Hutchison and both Mr Walker and Mr Wilkinson (waiting in the street outside the townhouse to warn Ms Hutchison of her ex-husband’s approach). It also includes the fact that Ms Hutchison was armed, as I find she was, with weapons such as a Taser, a pocket knife and, probably once she was inside, Exit Mould which she intended to use as mace. There is a text message at 11:31am from Ms Hutchison to her co-accused asking “exit mould work like mace?” Less than 30 seconds later she answered her own question: “I reckon that’s a goer”. A bottle of Exit Mould is seen in the photographs of the bathroom but this was not forensically tested. In her response to the Crown case statement Ms Hutchison indicated “the possession by the accused of a pocket knife and Exit Mould will not be disputed.” There are many messages in which it is clear that Ms Hutchison’s purpose was to get Mr Walker to attend the premises unaware that she was inside. Shortly before he arrived home she texted Mr Wilkinson “[Game] on. We man up [fist emoji].” As Mr Walker approached, Mr Wilkinson texted “here he comes”. Based on the evidence of both Toby Walker and Mr Wilkinson himself, the violence commenced very soon after Mr Walker arrived home.

2. [278]

   On all of the evidence, there is no reasonable inference other than that the two accused entered an agreement, that is a joint criminal enterprise, that violence would be inflicted on Mr Walker.

What was the purpose of the unlawful entry and violence?

1. [279]

   There is some evidence to support an inference that the accused had in mind, and carried out, theft of some of the property inside the townhouse. Part of the property seized following a search warrant included a number of pieces of jewellery belonging to Ms Montagami. Text messages showed Ms Hutchison to be covetous of the property she found inside the premises. She told Mr Wilkinson (waiting outside) that “he’s got everything better than us” and described leather lounges, televisions as well as electronic and photographic equipment. At one stage Mr Wilkinson said “If we are meeting him I want a camera the led lenser stuff”. Ms Hutchison was urging Mr Wilkinson to “come in [for fucks sake]” but Mr Wilkinson stayed outside, texting “Gotta keep watch”.

2. [280]

   While this evidence suggests both accused had in mind to steal some of the property, I find this was opportunistic rather than planned or calculated. Had their real intention been to steal, they could have done so without luring Mr Walker to the premises.

3. [281]

   The true, if completely misguided, purpose of the unlawful entry into the premises was to find evidence of parental neglect on the part of Mr Walker and, in particular, to make him confess and prove that he involved the children in his forays into demonology and exorcism. This finding is supported by the items Ms Hutchison was looking for and removed from the premises, by the things she said to the psychiatrists (although I disregard this in Mr Wilkinson’s case), by Mr Wilkinson’s evidence and by Toby’s evidence of what he heard his mother and father arguing about. Toby’s evidence was that his mother was trying to get his father to confess and said to him at one stage “confess or I’ll kill you.”

4. [282]

   I am unable to resolve whether Mr Walker did or did not confess. Toby said he refused to do so. Mr Wilkinson gave evidence he did make admissions and claimed that they believed the confession was recorded on his telephone. He found out later that the recording did not work and, at that stage, they deleted the video. At one stage the Crown suggested (by implication) that no such video existed. [99] However, there was evidence that the police analysed Mr Wilkinson’s telephone and that it was “likely but not conclusive” that a video file was deleted “sometime between 1:09pm on 20 October 2014 and 7:11pm on 24 October”. [100] It was submitted that if such a video was deleted it did not contain a confession by Mr Walker. That much is common ground, but the deletion of a video (whatever it contained) suggests that a video was made. It is unlikely a video was made to record an unlawful assault. It is far more likely that a video was made to attempt to record evidence of an admission.

5. [283]

   The Crown submitted that I would accept Toby’s evidence that Ms Hutchison said “confess or I’ll kill you” and that Mr Walker was killed because he did not confess. As I understand it, this involves the suggestion that I would infer an intention to kill although the Crown at most stages pitched its case on specific intention as being an intention to inflict “at least grievous bodily harm.”

6. [284]

   Accordingly, I will turn to what the evidence establishes in terms of any intentions formed by the accused, individually or as part of the joint criminal enterprise, once the assault on Mr Walker commenced.

Inside Mr Walker’s townhouse: the intentions of the accused, the scope of the criminal enterprise and the liability of each accused for murder and manslaughter

1. [285]

   While I am not satisfied that the accused had formed, either expressly or implicitly, a joint criminal enterprise to kill or inflict grievous bodily harm before the assault commenced, I have considered whether their intentions changed once they were inside the townhouse.

2. [286]

   I am satisfied that once the assault commenced, and Mr Walker resisted confessing to hurting Toby, Ms Hutchison’s intentions escalated. I am satisfied beyond reasonable doubt that at the time she was assaulting him, and the acts causing death were inflicted, she intended to do Mr Walker really serious bodily injury. I doubt she intended to kill him but I am satisfied that she intended to inflict grievous bodily harm.

3. [287]

   The main reason for this conclusion is the nature and number of the injuries and my conclusion that Ms Hutchison inflicted most of the injuries that killed Mr Walker. The second of those findings is explained above. I am satisfied that in her fury and anger, and with the background of hatred and animus that existed (at least in her mind), she lost control of herself and formed the intention required to establish a charge of murder. In reaching this conclusion beyond reasonable doubt, I have taken into account the fact that none of the injuries, by itself, bespeaks an intention to do grievous bodily harm. However, the multiplicity of injuries show that this was a sustained and brutal assault. I am satisfied that, at some stage, Mr Walker was incapacitated or disabled as a result of having Exit Mould sprayed in his eyes or having some form of electrical prod applied on at least two occasions.

4. [288]

   I have taken into account the vehemence contained in the text messages going back many months. I have outlined some of these above. While I accept that many of the more grandiose threats and assertions were little more than spontaneous outpourings of emotion, the strident and violent language employed disclosed a deep and bitter hatred towards Mr Walker.

5. [289]

   Accordingly, I am satisfied that, subject to a consideration of self-defence and substantial impairment, the evidence establishes the essential elements of murder in Ms Hutchison’s case. That is:

   1. (1)

      She did an act or acts that caused or substantially contributed to the death of Mr Walker.

   2. (2)

      The act or acts were deliberate.

   3. (3)

      At the time she committed those acts, she had an intention to inflict grievous bodily harm.

6. [290]

   On the other hand, the Crown has not established that Mr Wilkinson formed an intention to kill or inflict grievous bodily harm. There is no evidence that he held any deep animosity towards Mr Walker. Rather, his motivation was to support Ms Hutchison in her misguided attempt to regain custody of her children by proving that Mr Walker had neglected and abused them. He resisted coming inside the premises until Mr Walker arrived home and (I accept) was outside the premises when the altercation commenced. The text messages showed Ms Hutchison asking him to come inside on various occasions but him choosing to stay outside. It is unclear precisely what he did in terms of assaulting Mr Walker although I am satisfied that he did more than he said in his evidence. In any event, he was a party to a criminal agreement to assault Mr Walker and that assault was carried out jointly and/or by the other party to the agreement.

7. [291]

   In concluding that the evidence does not establish beyond reasonable doubt an intention to inflict grievous bodily harm, I have taken into account his non-violent disposition and the lack of any previous charges or convictions for violence. In considering all of the evidence, and inquiring into whether he formed the specific intention to establish murder, previous good character in this particular respect is an important part of the evidence.

8. [292]

   I have taken into account Mr Wilkinson’s actions relied on by the Crown as establishing a consciousness of guilt. This evidence does not distinguish between Mr Wilkinson’s guilt as to murder as opposed to some lesser crime. His conduct in covering up the crime is equally consistent with him feeling responsible for Mr Walker’s death or knowing that was party to the criminal enterprise to unlawfully enter the house and keep lookout. In other words, there are other explanations for his conduct apart from him being guilty of homicide.

9. [293]

   For those reasons, Mr Wilkinson must be found not guilty of murder.

10. [294]

    However, subject to a consideration of self-defence or defence of the children, the evidence establishes the elements of manslaughter by unlawful and dangerous act. That is, the evidence establishes:

    1. (1)

       Mr Wilkinson was part of a joint criminal enterprise to inflict violence upon Mr Walker.

    2. (2)

       The violence was unlawful (if it was not carried out in self-defence) and dangerous (in the sense that it carried with it an appreciable risk of serious injury).

    3. (3)

       The violence caused the death of Mr Walker.

Self-defence in Mr Wilkinson’s case

1. [295]

   Mr Wilkinson did not give evidence that he acted in defence of Ms Hutchison’s children. However, I accept counsel’s submission that it must be considered because there is evidence that Toby told Mr Wilkinson, and Mr Wilkinson may otherwise have believed, that Toby was subject to violence at Mr Walker’s hands. An available inference is that Ms Hutchison had persuaded Mr Wilkinson that their plan was necessary to save the children. On his account (which I reject, at least in part) his only act of violence was in response to being swung at by Mr Walker.

2. [296]

   Once the issue arises as a matter of law, the prosecution must eliminate or disprove it and must do so beyond reasonable doubt. To do this, the prosecution must prove (beyond reasonable doubt) either (1) that Mr Wilkinson did not believe the conduct was necessary to defend the children or (2) that the conduct was not a reasonable response in the circumstances as he perceived them to be. I am satisfied beyond reasonable doubt that it has done both.

3. [297]

   The evidence establishes beyond reasonable doubt that Mr Wilkinson did not believe that the conduct was necessary to defend the children from further assaults. Mr Wilkinson did not assert that he held such a belief. In cross-examination he said ‘there was part of me that believed it, part of me that didn’t know”. [101] While he was close to them, Toby and April were not his children. Mr Wilkinson must have known that there were many other options available. If Toby was injured, or was making specific complaint about a recent assault, Mr Wilkinson could have taken him to the police. There is no evidence, as there is in Ms Hutchison’s case, of a history of complaints that had not been acted on, or of significant psychiatric issues that may have caused him to hold an irrational belief that the only option available was to enter Mr Walker’s house and seek to extract a confession.

4. [298]

   For the same reasons, but to an even greater degree of certainty, the evidence establishes that the conduct was not a reasonable response to the circumstances as Mr Wilkinson perceived them to be.

5. [299]

   The Crown having established the elements of manslaughter by unlawful and dangerous act, including eliminating the possibility that the accused man was acting in defence of Ms Hutchison’s children, Mr Wilkinson will be found guilty of manslaughter.

Self-defence in Ms Hutchison’s case

1. [300]

   The issue of self-defence is more complex in Ms Hutchison’s case. Unlike Mr Wilkinson, she specifically and clearly raised the issue. Her case is that she believed her conduct was necessary to defend her children. She also submits that, in the circumstances as she perceived them, her conduct was a reasonable response to the threat she believed Mr Walker represented to the children.

2. [301]

   Ms Hutchison relies on the evidence of Toby’s repeated complaints, the seriousness of those complaints over the weekend before the killing, and the mixed messages she says she was receiving from April in conversations about whether Mr Walker touched her inappropriately. There is a large body of evidence of the children complaining and crying and indicating they wished to stay with her.

3. [302]

   She also relies on her history of making complaints to official bodies which were not acted on. This included the undisputed fact that she was sexually abused as a child and received no support from her mother. [102] There are a number of examples of this during Ms Hutchison’s adulthood, many of which are set out in agreed statements of facts, the histories provided to the psychiatrists and in Detective Kelly’s evidence. [103] For example, she provided police with a lengthy statement potentially relevant to the death of Alison Walker but, while the Coroner referred the papers to the DPP, no charges were laid. Similarly, she made complaints (and official statements) of sexual assault and domestic violence which were not acted on. There are numerous examples of her making official complaints about her fears for her children and the things (she says) they alleged.

4. [303]

   Ms Hutchison also relies on the evidence of the psychiatrists that her mental health issues made her “hypervigilant” to allegations of abuse and that her beliefs would have been informed by the nature of her psychiatric illnesses.

5. [304]

   The Crown’s position in relation to self-defence is that Ms Hutchison’s account is self-serving and she is using this kind of evidence as an excuse to do what she wanted to do, namely to seriously injure or kill a man she hated and resented. It submits that Ms Hutchison resented the outcome of the family law proceedings and this fed her hatred towards Mr Walker. Rather, than acting in defence of her children, she was acting out of self-interest and loathing. It is a simple case of domestic murder. It submits that April made no complaint about sexual abuse and that anything Toby said was the result of manipulation on the part of the accused. It relies on the history of text messages showing the extent of Ms Hutchison’s hostility and her inability to cope with the outcome of the family law case.

6. [305]

   Considering all of the evidence and submissions, and in relation to the first limb of self-defence, I am not satisfied beyond reasonable doubt that the Crown has excluded the possibility that Ms Hutchison believed her conduct was necessary to defend her children.

7. [306]

   It seems that Toby’s complaints escalated on the weekend of 18-19 October 2014. It is the defence case that he alleged that he was bashed and choked to the point of unconsciousness. This is supported by two separate parts of the evidence. First there are Ms Hutchison’s text messages on 19 October. At 2:12pm she wrote to her mother: “he chokes Toby unconscious” and at 5:24pm she wrote “he beat him & choked him worse than ever”. Second, and more importantly, Toby made the same allegation to police just a few days later. On 23 October 2014, in an interview in which he promised to tell the truth, Toby told Officer Greig that Mr Walker “choked me for 30 seconds” and “I just went all black”. As I have said, it does not matter whether this was true; what matters is that Ms Hutchison believed it. The fact that she did so is evidenced by her text messages on 19 October 2014.

8. [307]

   In considering whether Ms Hutchison held a genuine belief that her children were in danger, and what conduct she believed was necessary to defend them, her own (undisputed) history of being disbelieved as a child victim of sexual assault, and the psychological impact this had on her, are also important. This is likely to have informed the beliefs she had about the dangers her ex-husband posed to the children.

9. [308]

   To repeat, in a slightly different way, my finding on this issue: I am not satisfied beyond reasonable doubt that the Crown has eliminated the possibility that she believed her conduct was necessary to protect the children from (what she believed) was further harm. Even once she was inside the house, and her intention escalated, it is a reasonable possibility that Ms Hutchison believed her conduct was necessary.

10. [309]

    As to the second limb of self-defence under s 421, I have concluded that the prosecution has discharged its onus. The second limb is partially objective (an inquiry into what was in fact a reasonable response, rather than what she believed was a reasonable response). However, it is also partially subjective in that I must consider the circumstances as she perceived them to be. I am satisfied beyond reasonable doubt that the conduct was not a reasonable response to the circumstances as Ms Hutchison perceived them to be. Even accepting that her perceptions were heightened by the matters referred to in the preceding paragraphs, there were (objectively) several options available to Ms Hutchison. She had already contemplated taking Toby to Coffs Harbour to meet with a police officer she trusted. In spite of the Family Court orders, she could have refused to return the children until Toby had been seen by a doctor and interviewed by police. Once inside the house, she had around 2½ hours to reconsider her plan and, in particular, her intention to inflict violence to extract a confession.

11. [310]

    While it is possible that she believed her conduct was necessary to protect her children, her response was unreasonable and disproportionate to the threat. She is guilty of manslaughter by excessive defence of her children.

Substantial impairment

1. [311]

   Because of my finding in relation to self-defence, Ms Hutchison is not guilty of murder. Accordingly, the defence of substantial impairment does not strictly arise. [104] Even so, I should record my finding that I accept that Ms Hutchison has established the defence on the balance of probabilities.

2. [312]

   In reaching that conclusion, I have taken into account the serious nature of her impairment and the fact that it directly related to her conduct on 20 October 2014. I accept that she had each of the conditions identified by Dr Adams. She had at least two or three relevant conditions – post-traumatic stress disorder, a borderline personality disorder and a serious depressive illness. These arose from her history of abuse.

3. [313]

   I do not accept Dr Adams’ opinion that there was no link, or insufficient link, between her impairment and her conduct and his related or consequent opinion that the impairment was not relevantly “substantial”. I find that there was a direct link between her history as the victim of abuse, her psychiatric conditions and her conduct on 20 October 2014. While there was a degree of planning and calculation in the lead up to the offence, and an attempt to cover up the crime, both the planning and attempted cover up were chaotic and ill-considered and reflected an accused with substantial mental health issues. I accept Dr Nielssen’s opinion that the planning involved does not diminish to any great degree the extent of Ms Hutchison’s impairment and the way in which it related to her actions on 20 October 2014.

4. [314]

   I am satisfied that Ms Hutchison lost control of herself during the assault on Mr Walker. I am satisfied that this loss of self-control was directly and causally linked to her psychiatric conditions. These conditions were, in turn, causally related to her own sexual abuse as a child and the fact that her mother essentially abandoned her after she made the allegations. I accept that her ability to control herself was substantially impaired by her mental health issues (abnormality of mind) and that these arose from an underlying condition. I am also satisfied that her ability at that time to judge whether her actions were right or wrong was substantially impaired. I am not convinced that her capacity to understand events was substantially impaired.

5. [315]

   The more difficult question is whether Ms Hutchison established that the impairment was so substantial that it warrants the reduction of the crime to manslaughter. I have concluded that, had the question arose, her impairment did justify the reduction of the crime from murder to manslaughter

6. [316]

   I have considered the nature of the killing, its planning, and the callousness of the attempt to cover it up. I have taken into account that the specific intention established was to inflict grievous bodily harm (not to kill) and that this intention was formed as the events unfolded.

7. [317]

   Against that, I have taken into account that Ms Hutchison’s psychiatric illnesses at the time were very debilitating. Her mental functions were greatly different to most people in the community. The degree of her impairment was significant and arose, at least in part, from Ms Hutchison’s childhood trauma as a victim of repeated sexual abuse. I have taken into account my understanding of current community standards and, in particular, the increasing awareness of the impact that child sexual assault has on its victims. I accept that, rightly or wrongly, Ms Hutchison felt hopeless and impotent and unable to help her son and daughter. The community understands and accepts that there are few more powerful human qualities than the desire of a parent to protect their children.

8. [318]

   Accordingly, Ms Hutchison, on the indictment presented on Monday 13 August 2018, I find you not guilty of murder but guilty of manslaughter.

9. [319]

   Mr Wilkinson, on the indictment presented on the same date, I find you not guilty of murder but guilty of manslaughter.