R v Dixon  NTSC 91
PARTIES: THE QUEEN
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO: 21041556
DELIVERED: 10 November 2011
HEARING DATES: 19 and 20 October 2011
JUDGMENT OF: MILDREN J
Appellant: Dr. N. Rogers SC
Respondent: Ms T. Collins
Appellant: Director of Public Prosecutions
Judgment category classification: C
Number of pages: 17
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
AT ALICE SPRINGS
R v Dixon  NTSC 91
CORAM: MILDREN J
REASONS FOR JUDGMENT
(Delivered 10 November 2011)
 On the 19 October 2011 the accused was arraigned on a charge that on 10 December 2010 in Alice Springs in the Northern Territory of Australia she engaged in conduct that caused the death of James Bert being reckless as to causing the death of James Bert, contrary to Section 160 of the Criminal Code. The accused pleaded not guilty to that charge but guilty to the charge of engaging in conduct which caused the death of James Bert being negligent as to causing the death of James Bert, contrary to Section 160 of the Criminal Code.
 The matter then proceeded as a contested facts hearing.
 Under Section 43AA of the Criminal Code, Part IIAA of the Code applies to Schedule 1 offences committed on or after the commencement of the part. The offence of manslaughter defined by Section 160 of the Criminal Code is such an offence.
 Under Section 43AK (1) the Crown must prove that the accused was aware of a substantial risk that the conduct in which she engaged will cause the death of James Bert, and that having regard to the circumstances known to the accused it was unjustifiable to take that risk.
 It is not disputed that the intoxication of the accused is relevant to the question of whether or not she was aware of the substantial risk that her conduct would cause the death of the deceased.
Basic facts not in dispute
 Certain basic facts are not in dispute.
 At the relevant time Beryl Entata and Karen Kumantjara were both living at Flat 2, 3 Ameura Place, Alice Springs. On the evening of 10 December 2010 Ms Entata and Ms Kumantjara returned to the flat in the late afternoon or early evening. When they arrived the accused and the deceased were there waiting at the front door. After a discussion the accused and the deceased were permitted to enter the flat and to the stay the night. During the course of the evening food was provided by Ms Entata to either the accused or the deceased which needed to be cooked. Whilst the deceased was in the area of the kitchen, the accused stabbed the deceased in the left lower leg with a knife. As a result of that single stabbing, the wound entered the leg from the outer surface of the leg and passed through the leg onto the inner surface of the leg cutting two of the arteries that run down the back of the leg in half as well as their respective veins. The length of the wound track was about ten centimetres. The track was measured at approximately ten degrees downwards from the horizontal axis. The cause of the death was significant blood loss as a result of the stab wound.
 Essentially the Crown’s case was that the accused deliberately stabbed the deceased in the leg whilst he was standing over a stove attending to cooking meat. The defence case was that the deceased was, at the time of the stabbing, sitting on a table between the kitchen and the lounge room whilst the accused was cooking the meat in a frying pan. Her case was that she had the knife for the purpose of turning the meat in the pan. Whilst this was happening, Beryl Entata started to swear at the accused. At that stage Beryl was sitting on a bed in the lounge. The accused intended to stab Ms Entata and whilst swinging the knife towards her, she stabbed the deceased.
 For the reasons that follow I reject the account given by the accused and accept the account given by Ms Entata as to how, where and why the stabbing occurred. I accept her evidence beyond reasonable doubt. The accused’s evidence does not raise a reasonable doubt in my mind.
 The first witness to give evidence was Constable Rachael Dixon who was attached to the crime scene examination unit. She arrived at the flat at 11pm on 10 December 2010 and conducted an examination at the scene. The flat consisted of a single storey, one bedroom, one bathroom detached dwelling. Upon entering the flat she observed the deceased lying on his back in the entrance to the kitchen. There was a large pool of blood around him and various shoe and footprints leading away from the blood pool. A large amount of blood was visible on and around the left leg of the deceased. There was a single and a double mattress lying on the lounge room floor with a television in the corner. There was also a double mattress located on the floor of the bedroom. In the kitchen there was an orange plastic chair and food in the frying pan on the stove top. The lounge room and kitchen are located in the front of the house and the bedroom, bathroom and laundry are at the rear. A black handled kitchen knife serrated on the tip with staining on the blade was located outside the unit on the ground in front of the lounge room window. A swab was taken of a substance on the orange chair a small amount of which tested positive for blood. The swab was taken from the top of the orange plastic chair, that is to say, from the top of the back rest. There were no other obvious signs of blood on the chair.
 A search of the house including the kitchen located a total of five other similar knives and a pair of scissors. The knives were black handled with serrated edges similar to the knife located outside of the lounge room.
 The next witness was Beryl Entata who gave evidence with the assistance of an interpreter in Western Arrernte, although most of her evidence was in English. Ms Entata’s evidence was that she knew the deceased to whom she was related. She had known him since they were little children going to school together. At some time shortly before the night in question, the deceased and the accused had stayed at the flat for two nights. On the night before the 10 December 2010 the deceased and the accused had not spent the night there.
 She left the flat in the afternoon to do some shopping. Before leaving the flat she had drunk only one can of beer. She did her shopping at both Coles and Woolworths. She bought meat at Woolworths. She did not drink any alcohol whilst in town. She met up with Karen Kumantjara at the taxi rank. They both took a taxi to the unit. She also said she had met up with the deceased whilst she was shopping. The deceased had asked if he could stay with her that night and she said that he could not. When she arrived back at the unit with Ms Kumantjara the deceased and the accused were waiting outside of the flat. Initially she said to them that they could not stay with her and that they had to go. Nevertheless they came inside and the deceased asked for food and a blanket to sleep and she agreed that they could stay for one night. She said that the previous evening another relative Naomi, an old lady from Papunya had arrived early in the morning. She said that when she left the flat to go shopping Naomi was still in the flat asleep and that she was still asleep in the bedroom when she returned to the flat.
 She gave some food to the deceased and then went to the toilet. Whilst in the toilet she could hear the accused’s voice. She was speaking softly saying “You got any girlfriend I’m going to stab you” or words to that effect. This was spoken in Luritja, a language which she also understood. She finished in the toilet and stood next to the bedroom door which is also next to the kitchen. She could see that the deceased was cooking the meat on the stove. Karen Kumantjara was sitting on a mattress watching the television with her back to the kitchen. She saw the accused stab the deceased with a knife. She did not know where the accused got the knife from. She said that she saw the deceased standing in front of the stove when he was stabbed in the left lower leg. He then “blacked out on the floor” and the accused pulled the knife out. She asked the accused to give her the knife, but the accused refused to do so. She told her not to go but to wait for the police to arrive. The accused went straight out of the flat through the front door. Ms Entata told Karen Kumantjara and Naomi, who was still asleep in the bedroom, to go and the get the police. When she went outside she borrowed a mobile telephone from an Indian woman and rang the police. In the meantime the accused had left the flat completely. She described both the accused and the deceased as being “a little bit drunk”. She agreed that also she had one can of VB also which had been given to her by the accused when they arrived at the flat.
 She said that when the accused left the flat she had a white bag which she held under her arm and which had previously been in the kitchen.
 She was cross examined about who it was that was doing the cooking. She was adamant that it was the deceased and not the accused. She said that she consumed the beer before she went to the toilet.
 So far as the knife was concerned, the one located outside of the flat was not her knife but she said that it belonged to the accused. She denied having any knives with black handles in the kitchen. She said that she used the lid of a spaghetti tin to skin meat. She denied that at any time there was an argument between her and the accused. She said that she heard the deceased say to the accused before he was stabbed “I haven’t got any other girlfriends. I’m only yours”.
 In cross examination her statutory declaration to the police was put to her. In particular, it was suggested to the witness that at no stage did she tell the police that she heard the accused say anything about wanting to stab the deceased. The statutory declaration was tendered as Exhibit D1. The account given in the statutory declaration is not significantly different from the witness’s evidence at the hearing. It is however the case that in the statutory declaration the witness did not say that she had heard the accused say that she was going to stab the deceased.
 The next witness called was the pathologist Dr. Terence Sinton. The main points from the pathologist’s evidence had already been summarised. Dr. Sinton said the amount of force needed to inflict the wound was somewhere between moderate and severe.
 Dr. Sinton said that the deceased had a blood alcohol reading of .310% taken from a urine sample from the deceased and a reading of .239% taken from the deceased’s blood sample. The discrepancy between the two readings was not adequately explained. Dr. Sinton said that the deceased did have a high alcohol level and it was very likely that because of his state of intoxication that the deceased’s natural self defence mechanisms may have taken away his ability to realise that he was in danger and very likely it could have affected his mental and physical co-ordination. The affect of the evidence was that the wound was consistent with a stab wound from the knife found outside the lounge room window.
 The next witness was Karen Kumantjara who also gave evidence with the assistance of a Western Arrernte interpreter. Her evidence was that on the evening of the 9 December 2010 she had been staying with relatives at the Little Sisters Camp. During the day she had been drinking with members of her family at the silver toilets near Flynn’s church. She said that she was drinking cask moselle. She said that she drank “a lot”. She said that the first time she saw Ms Entata on that day was at the taxi rank. The two of them went in the taxi back to the flat. When they arrived at the flat the deceased and the accused were there waiting. She heard the accused and the deceased asking to stay the night at the flat. Ms Entata opened the door to let them in. She went inside and straightened the blankets out on the mattress in the lounge room and started to watch the television. She said that Ms Entata gave the deceased and the accused meat and bread. She confirmed that both she and Ms Entata had been given a green can of beer each and at the time she was given her can she was already sitting on the mattress. So far as the accused and the deceased were concerned they were in the kitchen behind where she was facing. She was unable to hear anything between the accused and the deceased because she had the volume of the television turned up. Her evidence was that before she sat down to watch the television she saw the deceased sitting on a chair in the kitchen. She said that the deceased had been the one doing the cooking. She denied seeing him standing at the front of the stove as she was watching the television. She confirmed that she was drunk. The next thing that occurred was that she was yelled out to by Ms Entata to get out of the flat and to go and get help. She did not see the accused stab the deceased. As she was leaving the flat she saw the accused standing near the deceased who was on the floor.
 She was cross examined about whether she had been drinking with Ms Entata at the toilets earlier that day. She denied that was the case. She was cross examined about what was in her statutory declaration to the police in which she said “Beryl, Naomi and I were sitting near the silver toilet block at the back of the Flynn church drinking. We sat there for about two hours drinking and talking to different people in the family”. She denied telling the police officer this. She said that the statement was not taken from her with the assistance of any interpreter and it was not read over to her. The statutory declaration does not indicate whether it was read over to her or not. In cross examination she admitted she did not actually see the deceased cooking in the kitchen. So far as knives in the kitchen are concerned so far as she knew there was only one large black handled knife in the kitchen which was larger than the knife which was found outside the lounge room.
 She was cross examined about the following passage in her statement to police:
“I could hear Alfreda and James arguing over food. Alfreda was cooking and James kept complaining he was hungry. Alfreda was getting angry because James was asking for food. Alfreda started to get cheeky for James”.
 She denied telling the police that Alfreda had been doing the cooking. She maintained she did not know who was doing the cooking and she was minding her own business watching the television set.
 A number of other exhibits were tendered including some admitted facts, a toxicology report, statements of other police officers as well as the ambulance officer but none of that information adds anything to my findings.
 The accused gave evidence with the assistance of an interpreter. She said the deceased was a boyfriend and they would come into Alice Springs in order to drink grog. They both came from Docker River and when they arrived they stayed down at the creek near Sid Ross which is a hostel.
 Her evidence was that during the day on 10 December she and the deceased had purchased a carton containing twenty four green cans of beer and that she herself had also bought a “yellow box”; later identified as wine. In cross examination she admitted that they had also been drinking at the Gap View Hotel before purchasing the carton of beer. After consuming some beers at the Gap they walked into town and purchased the beer at Coles, as well as the yellow box. After purchasing the alcohol they went to the scrub behind a creek out at Saltwell towards Larapinta. Between the two of them they drank twenty two of the cans and none of the yellow box. From there they walked to Ms Entata’s flat. According to the accused, after they entered the flat, it was she who asked for meat from Ms Entata. Ms Entata gave her the meat and sat down on the bed next to Karen Kumantjarra. She said that she was cooking the meat herself on a frying pan and using a knife which she obtained from the bedroom in order to turn the meat. She said that the knife belonged to Ms Entata (or in other words she denied it was hers). She said that when she was cooking the meat the deceased was sitting on a table between the kitchen and the lounge and Ms Entata who was still on the bed started swearing and growling at her in Arrernte. This made her angry. She said that she went to stab Ms Entata, but that she stabbed the deceased on the way. She said that when she swung the knife she was swinging it towards Ms Entata and that when she stabbed the deceased he was still sitting on the table. She tried to get the deceased up but he fell over onto the floor. She then got her bag, threw the knife away and left the unit. After leaving the unit she drank the yellow box and then went to the dry out centre where she was arrested. She said in cross examination that the deceased was sitting on the table. She indicated on Exhibit P16 that he had been sitting at the end of the table, his legs dangling and with his head facing towards the television set.
 Earlier in her evidence she claimed that she and the deceased had been at Ms Entata’s flat for a period of time on the night of the 9 December but they had left and slept elsewhere. In cross examination she was unsure of where it was that they slept but she knew that they were both together. Despite the amount of alcohol she had been drinking she denied that she was feeling drunk when she arrived at the flat. She agreed she only had two cans of beer left when she arrived at the flat and that she gave the two cans to Ms Entata and Ms Kumantjara.
 In cross examination the accused maintained that after Ms Entata went to the toilet she entered the lounge room and sat down on the mattress next to Ms Kumantjara. At this point the accused had already begun to cook the meat. The deceased was sitting on the table and Ms Entata began growling to her about the meat. She was cross examined about what it was precisely that Ms Entata said to her. The accused claimed the conversation between her and Ms Entata was in both Luritja and Arrernte but she was unable to say what it was precisely that Ms Entata said to her except that “she growled at me over the meat and that’s all I know” and that she was “swearing bad words”. Despite several attempts to get her to say what the bad words were, she was either unable or unwilling to repeat them in court and when asked in re-examination if there was some reason why she was not telling the court what the bad words were that were said to her by Ms Entata she simply said “Yes she swore at me like bad words.”
 Of the three aboriginal women who gave evidence I found Ms Entata to be frank and honest and her account was entirely believable and consistent with the rest of the evidence in the case. The account given by the accused on the other hand has the great difficulty that it seems virtually impossible for her to have accidently stabbed the deceased in the leg with the knife whilst travelling from the stove towards the mattresses in front of the television set. At that stage, on her account, the deceased was sitting on the end of the table looking towards the television, with his legs dangling. In order to have stabbed him in the outer side of the left leg she would have had to have walked around him and onto his left side, as a direct approach from the stove to the mattress would have taken her around the deceased’s right side. Even if the deceased’s legs had been crossed or in some other position than dangling, it is difficult to see how she could possibly have stabbed him from the outside of the left leg in those circumstances. It is not in doubt that it was the accused who did the stabbing. Her defence that she accidently stabbed the deceased is to some extent inconsistent with her plea of guilty, if this was an involuntary act. She did not claim it to be an involuntary act but rather that she accidently stabbed the wrong person and it is difficult to see how that could be the case even on her own account. Furthermore her evidence that there was an argument between her and Ms Entata whilst Ms Entata was sitting on the mattress is not supported by the evidence of Ms Kumantjara who at no stage claimed that Ms Entata was sitting on the mattress next to her.
 On the accused’s evidence she obtained the knife from the bedroom. I find this difficult to believe. Why would you expect to find a knife in the bedroom? On the other hand Ms Entata claimed not to have any knives in the house which is contrary to the evidence of Constable Dixon. It maybe that Ms Entata was not being entirely truthful about who owned the knife and that she was trying to distance herself from it. If there were five other similar black handled knives with serrated edges in the unit or in the kitchen area, this would suggest that the knife in question came from the kitchen. Apart from questions of credibility, where the knife actually came from is of no importance because the accused admits to using the knife on the occasion in question.
 So far as Ms Kumantjara’s evidence is concerned, she was clearly an unsatisfactory witness and I do not place a great deal of weight upon her evidence. Nevertheless I accept the evidence of Ms Entata that she had not been drinking with Ms Kumantjara at the silver toilets near Flynn church. I find that Ms Entata was sober but on the other hand the accused was significantly intoxicated, despite her own evidence to the contrary. On the accused’s evidence she and the deceased had been drinking together for several hours before arriving at the unit and had consumed a great deal of beer. No doubt they were both seasoned drinkers. The deceased’s blood alcohol levels were high and it would not be surprising to me if the accused had at least a similar blood alcohol level, bearing in mind that it usually takes less alcohol for a female to ingest in order to reach a blood alcohol level similar to a male.
 It also seems to me to be unlikely in the extreme that Ms Entara would have been making comments to the accused about the meat. She had already parted with the meat, been given a beer and had gone to the toilet. If she had expressed a reluctance to give the food over, one would have thought that something might have been said at the time when she was being asked for the meat or at the time when she gave the meat to the deceased.
 I bear in mind that nearly all of the accused’s evidence was given with the assistance of an interpreter. I bear in mind that it is difficult to make value judgments about demeanour in these circumstances but the interpreter appeared to be extremely competent and there did not appear to be any difficulty between the interpreter and the accused understanding each other.
 I find therefore that the accused stabbed the deceased in the kitchen whilst the deceased was standing up in the vicinity of the stove. I also find that the argument between the accused and the deceased was in essence a jealous argument and there was no argument between Ms Entata and the accused. I find that the accused deliberately stabbed the deceased in the leg and this was motivated by jealously.
 The question then is whether or not I should find in terms of Section 43AK of the Criminal Code that the accused was aware of a substantial risk that death would result from her conduct. This requires proof beyond reasonable doubt of her actual state of mind. There is no specific evidence to which the Crown was able to point to show that she had such a conscious knowledge. The Crown relies upon inferences to be drawn from all of the circumstances.
 According to the agreed facts the knife was two hundred and twenty five millimetres in length. The blade was one hundred and twenty millimetres long, twenty millimetres wide and it had a serrated pointed tip. It was obviously a very dangerous weapon.
 I bear in mind that the accused is not a young woman although her age is not in evidence. She speaks little English and apparently had little education. She was born in the Docker River community but in recent years she has claimed to have spent most of her life in Alice Springs. She is unable to read or write English and is unable to read or write in Luritja and Arrernte. She was also intoxicated at the time. Ms Collins has submitted that although it may be inferred that she attempted to cause serious harm, it cannot be inferred that she foresaw the possibility of death. The mechanism by which death may well occur from the stabbing to the leg is if an artery is severed. In those circumstances unless the wound is able to be treated very promptly, death is likely to occur quite quickly. No evidence was given by the accused as to whether or not she had any understanding of the way in which the arteries and veins functioned. She was not cross examined about that by Dr. Rogers, but I acknowledge the extreme difficulty (if not impossibility) of asking hypothetical questions of Aboriginal witnesses through an interpreter. Nevertheless I think this is a matter of such common knowledge even amongst aboriginal people that I should draw the inference that she was well aware of such a possibility, particularly when using a large knife of the kind which was used on this occasion. I am therefore satisfied beyond reasonable doubt that the Crown has established that the accused was aware of a substantial risk of death, bearing in mind the kind of weapon that was being used. Clearly, having regard to circumstances known to the accused, it was unjustifiable to take that risk.
 I therefore find the Crown has proved manslaughter by recklessness.
 I will hear the parties on submissions as to sentence after they have had an opportunity to consider these reasons.