Judgment

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. 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. 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. 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. 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”. 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

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

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. 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. 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). 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]

LEGAL PRINCIPLES AND ISSUES

Judge alone trial

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] 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

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. 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. 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. 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.

Ms Hutchison

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.

Mr Wilkinson

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

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. 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. 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

Murder

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

The accused did an intentional act. The act caused Mr Walker’s death. The act was committed with an intention to kill or inflict grievous bodily harm. The accused did not act in self-defence.

Grievous bodily harm means really serious injury. Alternatively, the Crown might establish murder by omission if it establishes beyond reasonable doubt:

The accused failed or omitted to do an act. The omission caused Mr Walker’s death. The accused acted with reckless indifference to human life.

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]

Manslaughter

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. 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:

The accused did an intentional act. The act caused Mr Walker’s death. The act was unlawful. Relevantly, this means that the act was not done in self-defence. The act was dangerous in the sense that it carried with it an appreciable risk of serious injury. [12]

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:

The accused owed Mr Walker a legal duty of care. The accused was negligent in that they breached that legal duty. The breach of duty caused the death of Mr Walker. The degree of departure from the standard of care expected was so gross or substantial that it is deserving of criminal punishment.

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

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. 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. 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.

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

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

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. 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:

418 Self-defence – when available

(1) A person is not criminally responsible for an offence if the person carries out the conduct of the offence in self-defence.

(2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary:

(a) to defend himself or herself or another person, or

(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or

(c) to protect property from unlawful taking, destruction, damage or interference, or

(d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,

and the conduct is a reasonable response in the circumstances as he or she perceives them.

421 Self-defence – excessive force that inflicts death

(1) This section applies if:

(a) the person uses force that involves the infliction of death, and

(b) the conduct is not a reasonable response in the circumstances as he or she perceives them,

but the person believes the conduct is necessary:

(c) to defend himself or herself or another person, or

(d) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person.

(2) The person is not criminally responsible for murder but, on a trial for murder, the person is to be found guilty of manslaughter if the person is otherwise criminally responsible for manslaughter.

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. 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. 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

Section 23A of the Crimes Act provides:

23A Substantial impairment by abnormality of mind

(1) A person who would otherwise be guilty of murder is not to be convicted of murder if:

(a) at the time of the acts or omissions causing the death concerned, the person’s capacity to understand events, or to judge whether the person’s actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and

(b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter.

(2) For the purposes of subsection (1) (b), evidence of an opinion that an impairment was so substantial as to warrant liability for murder being reduced to manslaughter is not admissible.

(3) If a person was intoxicated at the time of the acts or omissions causing the death concerned, and the intoxication was self-induced intoxication (within the meaning of section 428A), the effects of that self-induced intoxication are to be disregarded for the purpose of determining whether the person is not liable to be convicted of murder by virtue of this section.

(4) The onus is on the person accused to prove that he or she is not liable to be convicted of murder by virtue of this section.

(5) A person who but for this section would be liable, whether as principal or accessory, to be convicted of murder is to be convicted of manslaughter instead.

(6) The fact that a person is not liable to be convicted of murder in respect of a death by virtue of this section does not affect the question of whether any other person is liable to be convicted of murder in respect of that death.

(7) If, on the trial of a person for murder, the person contends:

(a) that the person is entitled to be acquitted on the ground that the person was mentally ill at the time of the acts or omissions causing the death concerned, or

(b) that the person is not liable to be convicted of murder by virtue of this section,

evidence may be offered by the prosecution tending to prove the other of those contentions, and the Court may give directions as to the stage of the proceedings at which that evidence may be offered.

(8) In this section:

“underlying condition” means a pre-existing mental or physiological condition, other than a condition of a transitory kind.

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] 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

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. 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.

AVL evidence

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). 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] 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.

Demeanour

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]

"... I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.”

Why would the witness lie?

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

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. 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

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. 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. 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

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

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. 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]

“Who of us can say how an innocent or a guilty man ought or would be likely to act in such a case; or that he was too much or too little moved for an innocent man?”

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

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. 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. 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

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. 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

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:

Admissions by Mr Wilkinson: the evidence of Bradley Hinchcliffe

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. 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. 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”.

Evidence of a witness criminally concerned in the events: Mr Wilkinson’s evidence

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] 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. 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.

Hearsay evidence: the evidence of Ms Hutchison

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. 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. 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]

THE EVIDENCE

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

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. 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:

Forensic (and DNA) evidence (Ex YY). Assaults committed on Ms Hutchison when she was a child (Ex H-10). The death of Mr Walker’s first wife, the coronial investigation surrounding her death, and allegations made by Ms Hutchison against Mr Walker (Ex H-14). Family Court proceedings between Ms Hutchison and Mr Walker (Ex H-15). [40] Agreed facts as to the video content of Mr Wilkinson’s ‘phone (Ex H-23).

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

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.

MOTIVE OR JUSTIFICATION: THE HISTORY OF A TROUBLED AND BITTER RELATIONSHIP

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. 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. 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

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. 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. 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. 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. 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

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”. 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”. 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. 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.

MS HUTCHISON’S PERSONAL HISTORY

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] 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. 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”. 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. 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.

MR WILKINSON AND HIS RELATIONSHIP WITH HIS CO-ACCUSED

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. 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. 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. 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. 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.” 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.

THE GENUINENESS OF MS HUTCHISON’S CONCERNS ABOUT THE WELFARE OF HER CHILDREN

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

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. 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. 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. 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.” 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. 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

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. 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.” 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

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. 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. 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

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. 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. 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. 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

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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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

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. 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] 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.” 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. 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]

“Q. And did you cry and look away and say ‘I can’t tell you’?

A. I think so.

Q. I’m just going to ask you this, did your father touch you on the vagina April?

A. No.”

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

MS HUTCHISON’S MENTAL STATE ON 20 OCTOBER 2014

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. 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. 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. 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”. 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.

THE KILLING OF MR WALKER ON 20 OCTOBER 2014

Context

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

There are telephone records and messages on 19 October 2014 of real significance to the issues in the trial. At 1:07pm, Ms Hutchison called her mother (Jocelyn Learoyd) and then two minutes later texted [54] her:

“call me! hes threatened & beaten & is gonna kill Toby. i need to take them to detective scott parker coffs harbour!”

A minute later she texted:

“thats the only way im gonna save them without murder charges on me coz hes framing us. pls call coffs detectives NOW”

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. 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. 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. 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

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

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. 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: 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. 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. “ 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. 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. 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. 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. 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 involve