R v BCM[2015] QSC 43

SUPREME COURT OF QUEENSLAND

Charges and Verdict

1. On 15 August 2014 an indictment was presented in this Court charging BCM that on the 29^th day of August 2013 he attempted unlawfully to kill the complainant. 
2. On the first day of trial a new indictment was presented to the Court adding an alternative charge that BCM, with intent to maim, disfigure or do some grievous bodily harm to the complainant, unlawfully wounded the complainant, and, in the further alternative, that BCM unlawfully wounded the complainant.
3. When arraigned, BCM pleaded guilty to the charge of unlawful wounding.  He pleaded not guilty to the other two charges.
4. My verdict is that the defendant is guilty of the charge of attempted murder.  What follows are my reasons for this verdict.

Trial by Judge Alone

5. On 21 November 2014 A Lyons J ordered that BCM be tried by a judge sitting without a jury.  The trial before me took four days.  The defendant elected to give evidence, and to call his mother as a witness.

Anonymity

6. The defendant in this matter was a child at all material times, and is still a child.  The same can be said of the complainant and several of the witnesses.  Accordingly I have used initials rather than names where appropriate. 

Impartiality

7. The defendant was and is a slight child who looks smaller and younger than his years.  He was 14 at the time of the stabbing I am concerned with, and 16 at the time of trial.  He sat at the Bar table during the trial.  His father sat immediately behind him, as did his mother once she had given her evidence.  Had there been a jury I would have warned them to make a dispassionate consideration of the evidence, not influenced by sympathy or prejudice, and I have borne in mind my duty to do that, notwithstanding my natural inclination was to feel sympathy towards the defendant’s family.  And notwithstanding the grave nature of the charges against such a young defendant. 
8. The trial was ordered without a jury on the basis of medical evidence.  As I mentioned during the course of the trial, I briefly perused the reasons of A Lyons J and briefly looked at some of the medical evidence she had before her.  There was no medical evidence led before me, and I am well aware that I did not have the benefit of expert views or cross‑examination of experts.  In these circumstances, I disregarded the material from the earlier application before A Lyons J. 
9. The defendant attempted to run a case that the complainant was a bully.  There was conflicting evidence about this (for example t 5-9).  I do not make any finding that the complainant was a bully – it is not necessary that I do so for my conclusions, and I do not think I had sufficient reliable evidence on which to make such a finding.  Again, had I been directing a jury I would have warned them of the need not to be prejudiced and to act dispassionately on the evidence. 

Evidence from Children

10. The complainant was 15 at the time of the stabbing and 16 at the time he gave evidence.  The complainant gave evidence as a special witness.  He gave evidence from a suite at the courthouse via video-link.  He had a support worker with him.  The defendant sat in a position in the courtroom which meant the complainant could not see him.  Those measures were as a result of an order made by another judge before the trial began.  There is nothing out of the ordinary in this and it has not caused me to draw any inference against the defendant.  It is something I would have warned the jury about had there been one.  I gave the evidence of the complainant no greater or lesser weight because of the course adopted, nor do I regard it as having any greater or lesser probative value.  
11. The crucial evidence in this case came largely from three children: the defendant, the complainant and the child I have called A.  I have been alert, and have taken particular care, when assessing their evidence to allow for their immaturity both at the time of the stabbing – when the complainant and A gave statements to the police – and at the time they gave evidence at the trial.  I have applied this same care to the defendant’s statements to the triple 0 operator and to police after the stabbing.  Other witnesses in the case were children and, of course, I have applied the same approach to their immaturity.
12. The complainant’s evidence‑in‑chief was given by way of the tender of recordings of interviews with police pursuant to s 93A of the Evidence Act 1977 (Qld).  So was the evidence-in-chief of A and other child witnesses.  Again, I regarded this as routine and did not draw inferences against the defendant or accord any greater or lesser weight or probative value to the evidence because of this procedure.  I had the s 93A statements as recordings, and for convenience, transcripts of them, during the time I reserved my decision.  I was aware that it was the recordings which were evidence, not the transcripts.  Had there been a jury, and had I allowed them to have the s 93A recordings and transcripts, I would have warned them not to give disproportionate weight to this evidence.  Things were somewhat different for me sitting alone, as I had the written transcript of all the evidence in the trial.^[1]  I also had the recordings (and transcripts) of the defendant’s call to triple 0 and initial interaction with the police.^[2]  Nevertheless, I have borne in mind that I should not give undue weight to any part of the evidence which I had in recorded form.

Burden of Proof, Onus of Proof, and Circumstantial Case

13. I remind myself that the defendant is presumed to be innocent in relation to the charges he contests and that the burden of proof beyond reasonable doubt of each element of the contested offences remained on the Crown throughout the trial.  I remind myself that this is not changed by the fact that the defendant gave evidence and called his mother to give evidence: he did not assume the burden of proving anything, including his innocence.
14. Little was in contest in this trial except the state of the defendant’s intention at the time he stabbed the complainant.  Therefore, the Crown case was (in practical terms) a circumstantial one and the Crown thus bore the burden of proving that guilt was not only a rational inference in all the circumstances, but was the only rational inference that could be drawn in all the circumstances. 

Background Relationship between the Defendant and the Complainant

15. The defendant and the complainant were both in Grade 10 at the time of the stabbing.  They had known each other since Grade 8 (t 5-35).  They had friends in common but were not themselves friends (t 5‑35).  Towards the end of Grade 9 there was some conflict between them which resulted in a physical scuffle (t 5‑40.)  The defendant said that after the incident the complainant would remind him of his weakness in the scuffle (t 5-53).  The defendant said that after that scuffle he avoided the complainant.  He did not believe the altercation was in the normal run of schoolboy conflict (t 5-54).  Apart from one occasion where they were in a group playing together (tt 5-40‑41), the complainant and defendant then had little direct contact until the day before the defendant stabbed the complainant (t 5‑41).  I accept all this evidence.
16. The defendant said that he thought the actions of the complainant were “really mean” and saw that “it was just going to get worse, if he, like, picks on people who’re smaller than him.” (t 5-40). 

The Day before the Stabbing

17. On the day before the stabbing one of the other students gave the defendant a jar of marshmallow fluff.  That is apparently something like jam which the students were in the habit of eating from the jar.  The complainant demanded the marshmallow fluff from the defendant who refused to give it to him.  The defendant hid it, but the complainant found it.  When the defendant discovered this, there was a physical altercation between them which a teacher broke up (t 5‑41).  The marshmallow fluff was returned to the defendant (t 5‑41).  He ate it going home in the car that afternoon (t 5-42).
18. The defendant said that he thought about the incident when he got home, and during the night, and it made him angry (tt 5-57-58).  The defendant’s parents were divorced.  His mother (with whom the defendant lived, or lived most of the time) had lived with a man, B, between April 2011 and September 2012.  B had been violent towards the defendant’s mother (t 5‑75).  The defendant says he thought of how B became more abusive over time in the context of the complainant’s behaviour (tt 5‑42-43).  I accept all this evidence.
19. The defendant said he, “was just thinking he’s [the complainant’s] going to keep on getting, like, worse and worse … and I was thinking … maybe I can stop him from doing this, like scare him somehow or something …” (t 5-42). 

The Morning of the Stabbing

20. The defendant said that on the morning of the day he stabbed the complainant he was trying to think of something to take to school to scare the complainant.  He said that he initially thought of using a pin^[3] to scare him, but “there wasn’t a pin”.  He said he then considered using tweezers, but he thought that was a poor choice because, “… he’d probably be like what are you going to do?  Pluck my eyebrows with that or something …” (t 5-43).  He said he then went to the kitchen to get a drink of water and then his mother hurried him along to go to school, “So I just, like, quickly opened a drawer and grabbed a knife and put it in my blazer – blazer pocket.”  (t 5-44).  He said that when he decided to take the knife to school, he was going to “pull the knife on him and … just say, like, I will hurt him if he keeps on harassing people.  That was, like, my original thought, and then, yeah, it changed later” (t 5-44). 
21. I find that the defendant carried the kitchen knife, in its plastic sheath, in the breast pocket of his blazer throughout the morning, until he used it to stab the complainant at lunch time.
22. The complainant and defendant were in classes together all morning.  In the first class, drama, the defendant formed the view that the complainant was annoying a female student by talking while standing “really close to her” (t 5-44), so the defendant walked up to the complainant and put his face really close to the complainant’s face saying, “… dude, it’s called personal space …”.  The defendant said that the complainant laughed at him when he did this (t 5‑44).  The complainant accepted this incident occurred in this way (t 3-30).  I accept this evidence.
23. The defendant said that this further made him think that the complainant would not change his behaviour in response to a simple threat with a knife but would need to be “jabbed” with the knife.  He said he formed the view that if he jabbed the complainant he would be really afraid and “not do that stuff anymore.” (t 5‑45). 

Morning Tea Break

24. At morning tea break the defendant met with a good friend of his, A.^[4]  A was interviewed at the school very soon after the stabbing and then later that afternoon more formally at the police station.  I had recordings of the interviews as exhibits and transcripts which I marked for identification.^[5]  As discussed during the trial, I am aware that it is the recordings which are the evidence and I have listened to parts of them again as I have considered my verdict.
25. At first, when the police spoke to him at school, A falsely denied that there was any significant conversation between him and the defendant at morning tea, and he denied that at some length.  Whether he did that because he feared that he might be punished for what had occurred;^[6] whether he felt guilty for not acting on the information he received from the defendant at morning tea; whether he was acting out of loyalty to the defendant, or for some other reason, I cannot tell.  I do record that I have no criticism of A’s behaviour on the day of the stabbing.  He acted in a proper and a compassionate way towards his friend, the defendant, when the defendant told him quite extraordinary things during the morning tea break.  No-one could suggest that A ought to have anticipated what the defendant did later that day.  Once the police told A they knew of the significant conversation between him and the defendant at morning tea, A changed his version of events and provided information to them.
26. Notwithstanding his initial false information to police, I do accept that A’s evidence as to his conversation with the defendant was truthful and reliable, both when he spoke to the police and when he gave evidence in Court.  I thought that he was very much aware of the serious nature of the enquiries being made of him and answered in a thoughtful, mature and earnest way.  However, I give little weight to his answers to leading questions in cross-examination.  I thought he became unduly acquiescent in this process.  In cross‑examination he became almost mono-syllabic and responded with words which might read as indicating assent – for example, “okay” – which I did not take to signify assent, but to be more in the nature of conversational responses, such as “go on”.  I thought that because of his youth he lacked the confidence to contradict or modify the propositions contained in the leading questions.
27. When he spoke to police at the school, soon after the stabbing, A said that the following conversation occurred during the morning tea break:

“[A]:Okay well he approached me, ah, generally at the beginning [of morning tea break] and said this might be the last time that I, that you’ll want to talk to me.

[Police Officer]:Yep.

[A]:That, then we generally just walked away from everyone. I thought that might be something important.

[Police Officer]:Yep.

[A]:He then said he was going to attack [the complainant].

[Police Officer]:Yep.

[A]:And he, exactly his words, he said he was going to kill [the complainant].

[Police Officer]:Yep.

[A]:And I asked why.

…

[A]:I asked why. He said. He he’s gonna end up like [B] cause I’ve met [B] but I don’t really know much about him.

[Police Officer]:Yep.  Yep.

[A]:And um generally, [indistinct] yeah, he [indistinct] [B] about [indistinct].

[Police Officer]:Okay tell me about that.

[A]:[indistinct] Rude to women then^[7] violence.

[Police Officer]:Mmm-hmm.  Yep.

[A]:And then I said as your friend I have to try and talk you out of this.”

28. In listening to this part of exhibit 16, it is clear that: (1) A emphasises the word “kill” in a very deliberate way when he says it and (2) the line which reads “rude to women then violence” is a description of B, not the complainant.
29. A said that the defendant was “kind of grim” when he said that he was going to kill the complainant.
30. A told police at the school that the defendant told him (A) at morning tea that he (the defendant) was looking up “really weird things [on the internet] so that if they look through his computer that, um, they would call him insane so that he wouldn’t go to prison … he just said he looked up stuff so that his internet history would make it look weird. … or made it look as though he wasn’t in a correct sort of state of mind.”
31. In the more formal interview with police A gives very much the same account of the conversation.  In particular he says in answer to the question, “So tell me exactly what he said at that point”: “He said he was going to kill [the complainant]”.  He does say after that that he did not remember the exact words, but he repeats the answer again at p 21 of the transcript where he again uses the word “kill” very deliberately, and sombrely, with an emphasis that is not apparent from the written transcript.  Again he says that the defendant seemed quite grim when talking about this and that he spoke in a “quiet sort of way that no-one would overhear”.  When the police ask A to explain what he means by grim he says, “Sort of really serious”.  He remained consistent about that in his evidence in Court (t 4‑15).
32. When discussing the internet searches with police in the more formal interview A repeats that the defendant told him his aim was to produce an internet history which would “point to him being insane”.  A spent the remainder of the morning tea break trying to talk the defendant out of his stated plan.
33. In the first interview with police, the police officer uses the word “attack” before A tells the police officer the real substance of the conversation that occurred at morning tea (p 9 of the transcript).  After that A does say “attack” on one occasion.  In cross-examination he was led about the use of the word “attack” and led about him using words “to the effect of” in relation to his evidence that the defendant said he was going to kill the complainant (see t 4-16).  As is recorded in the trial transcript, my observation was that A became acquiescent when confronted with leading questions, and I give this evidence little weight. 
34. The defendant gave evidence that he first told A he was going to attack the complainant, but acknowledged that he did say to A that he was going to kill the complainant (t 5-46, tt 5‑61‑62).  He had watched A being cross-examined about the word “attack” (t 4‑16). 
35. There was some emphasis by the defence on the words, “to attack”, as something which lessened the gravity of A’s evidence that the defendant told him he was going to kill the complainant.  I find that the gravamen of what the defendant said to A at morning tea time was that he was going to kill the complainant.  I cannot exclude the possibility that the defendant may also have used the verb “to attack” but if he did, I do not see that it diminishes the seriousness of what the defendant said to A about killing the complainant.  I do not see that the use of the verb “to attack”, if it did occur, makes it more likely that the defendant planned only to “jab” the complainant rather than kill him (cf tt 5‑61‑62).
36. A gave evidence that the defendant said odd and strange things from time to time (t 4‑14).  So did another student whose evidence I regarded as being reliable.  A agreed in cross‑examination that that was why he did not take the defendant’s threat (at morning tea) to kill the complainant as seriously as he might have done (t 4-15).  And he told the police the same thing (exhibit 17).  However, A did not accept that what was said about the complainant was said in a semi-serious or semi-joking way (t 4‑15). 
37. The defendant accepted that he said to A at morning tea words to the effect “this might be the last time you want to talk to me” (t 5-46).  The defendant accepted that he told A at morning tea that he was looking up things on the internet to make him look crazy (t 5‑62) but denied that he had in fact done so, and denied saying to A that he had engaged in that conduct so that he would not go to prison.  Bizarrely he said in cross‑examination that he said to A that he engaged in that behaviour so that he would go to prison (t 5-62).  There was no evidence that in fact there were internet searches of this type.  I find that the defendant told A that he had made odd internet searches so that he would seem insane and not go to prison.  That was A’s recollection soon after the conversation.  It makes sense in the context of everything else the defendant said to A.  The version given by the defendant in cross-examination does not make sense either in that context or any other context.
38. The defendant said that what he had in mind in telling A that he would attack the complainant was jabbing the complainant with the knife (t 5-46).  He said that he did not mean it when he said he was going to kill the complainant; he was just “venting off anger” (t 5‑46). 

Religious Instruction Class

39. After morning tea, the students went to a religious instruction class.  The complainant sat next to the defendant.  The complainant tried to make the defendant talk to him.  The defendant said he did not talk.  The complainant poked the defendant in his shoulder and accused him of being like a robot.  The defendant says the complainant pushed him to the side of his head, “purposely trying to be annoying” (t 5‑47).  I accept this evidence.
40. The defendant said that although A’s advice at morning tea had made him reconsider the wisdom of his planned actions, after this push to the side of his head in the religion class the defendant decided that the complainant was “… definitely becoming a bully, and so that’s when I decided that I would jab him …” (t 5-47). 
41. The defendant said that the complainant began conversation about the marshmallow fluff, asking whether the defendant still had it (t 5-47).  The complainant said the defendant volunteered that he still had the marshmallow fluff.  I do not find it necessary to resolve this conflict.  Even on the defendant’s version, the defendant falsely told the complainant that the marshmallow fluff was in the auditorium (assembly hall) and offered it to the complainant (t 5-47 and t 5-65).  He admitted that he said this to the complainant so that he could take him to a dark area and stab him in the neck (t 5‑65).  The defendant was familiar with the back stage area in the assembly hall and knew that it was dark enough that the complainant would not be able to see what the defendant was doing there (t 5‑65).
42. At lunch time the two students left the religious instruction classroom.  The defendant arrived at the auditorium before the complainant.  There was a dispute as to the circumstances of that, which I do not find necessary to resolve.  Both boys say that the defendant got to the auditorium first.

The Stabbing

43. The auditorium had a stage at one end and lockers (including the complainant’s locker) along one side wall.  There were heavy curtains to the stage which were fully drawn back so that the stage was open to view from the body of the hall.  There were lights on in the hall, but there was no, or reduced, lighting on the stage and the wings of the stage were quite dark.
44. The defendant was in one of the wings to the stage waiting for the complainant when he entered after the religious instruction class.  The defendant began a course of false conduct designed to make the complainant think he was playing a game in which the complainant had to find the marshmallow fluff (t 5‑48).  In his evidence-in-chief the defendant said:

“He came up and I was saying, can you see it, and then I noticed it was really, really dark, and so I said, oh, do you have a light, or something and he said, oh, I have my phone in the locker, so, he went and got his phone from the locker, and came back and turned it on – the light.  And so, he was looking around …” (t 5‑48).

45. The complainant was asked about the lighting in the wings in cross-examination:

“… It was quite dark?--- It was – it was pretty much pitch black.

Pitch black.  And that was why you decided to run back to your locker to get your phone?--- Yes.

To switch it onto the light; correct?--- Yep.  Yes.”  (t 3‑32).

46. It was never put to the complainant in cross-examination that it was the defendant who suggested that the complainant go and get a light.
47. Under cross-examination the defendant introduced the idea that it was he who suggested that the complainant go and get the phone/torch because he (the defendant) wished to have more light available to make sure that he stabbed the complainant through a part of the neck where there were no vital structures:

“And went to that area behind him?--- I – I went behind straight away, and then he came behind, and that’s when---

Yeah?--- Yeah.

And that was after he’d grabbed his phone so he could see?--- No.

No?  He went back after that to grab his phone?--- Yes.  It was a bit dark, so I said do you have a light or something, and he said I have my phone in my locker, so I said can you go and get it, because it was too dark and – and if I was going to go through with it, like, I wanted to know – like, I wanted to be able to see so I couldn’t, like, hurt him too bad.

Wasn’t it the case that he was the one that said it was too dark; I can’t see what I’m looking for?--- No.

I need to go and get my torch?--- No.

Are you sure about that?--- Yeah.  Well I think he was saying that it was too dark, but I said, like, do you have a light or something, and then he said I have a phone.  I was, like, go get it.  But he – he was saying it was too dark, but I was the one who said, like, go get the light.” (t 65-66).

48. This was associated with the defendant’s evidence that he took care when stabbing the complainant to stab him only through the fatty part of his neck where he would not do him any serious damage (see below).
49. While the complainant looked about for the marshmallow fluff, the defendant covered the complainant’s eyes or tried to cover the complainant’s eyes, pretending that he would move the marshmallow fluff into place while the complainant could not see (t 5-48).  In fact, this was a prelude to his stabbing the complainant (t 5‑67).  The defendant said that the first time he covered the complainant’s eyes he hesitated, and then uncovered them, thinking he had waited too long and that the complainant had become suspicious (t 5-48).  The defendant said that when he covered the complainant’s eyes for the first time “… I was, like, I was really freaking out, like, while I was there, because I kept on thinking, like, should I go through with this? Should I do it?”  He then gave evidence that the second time he covered the complainant’s eyes, “… I was, like, now I have to go through with this.  He’s not going to change if I don’t, and I’ve already come this far.  Like, all this is – he’s just going to get worse with people too, if I don’t, and so, yeah, I went through with it, and then I ---” (t 5-48). 
50. The defendant said that he took the knife out of his blazer pocket after he covered the complainant’s eyes a second time (t 5‑48).  He said that he moved the complainant’s arm (holding the phone/torch) so that the light shone better on the complainant so that he could aim his attack better (t 5-48).  He said at this time, “… I was also thinking, like, can he see through my fingers, and so I was, like, oh, and – and I, like, quickly decided where I was going to do it, and I didn’t want to, like, get him on the face, or something, because like, he had – see a mark – people would see, and go, like, oh, so it wasn’t anything, and like, I didn’t want to hurt him, because that’s why I was, sort of, like, didn’t want to do it on the, like, front or back of the neck, because, you know, there’s like spine, and you breathe there.  But then, there’s just, like meat here, or – am I allowed to say fat, without being rude? … I don’t want to be rude but there was, like, a lot of fat there, and so I was, like, oh there’s nothing important there, so that’s where I could do it.  Now I know that there was important things there.” (tt 5‑48-49).  Later in his evidence-in-chief he said that he aimed the knife at the “like, meat part of his neck, where there’s nothing important” (t 5‑50).
51. The defendant said at this time he was “pretty much right behind” the complainant, just a little bit to the left of him (t 5‑49).
52. In cross-examination he continued to assert that he deliberately aimed the knife at a part of the complainant’s neck where, “I didn’t think there was anything important.” (t 5-68).  He said that he aimed for the side of the complainant’s neck because “there’s nothing on the sides”.  In contra-distinction, the back “has the spine” and “they breathe on the front” (t 5‑68).   He further said on this topic, “There’s nothing there, but he could know, like, it’s a – it’s like if he – if I wanted to kill him, he would have been dead, because that’s a really easy spot to kill someone, as you’ve said, and so the fact that he is not dead is proof [indistinct] …” (t 5‑70).
53. The defendant said that having taken the knife out of his blazer pocket he held it about 10 centimetres (t 5-59) from the complainant’s neck and then, “The original plan was to, like, quickly just nick him with it, and then step back and say to him, like, oh, this is what’s going to happen to you, except worse, if you keep on bullying people, and, like, harassing people, but I, like, I was freaking out so much that just before I did it, I actually closed my eyes, and, like [indistinct] a little bit, and so I just ---” (t 5‑49).  In cross‑examination he said about this, “… but I may have freaked out a bit and closed my eyes and just quickly did it, and so that’s why I didn’t feel it enter, but then – then I was like no.  It – crap.  It has to be in, and that’s when I pulled it out, because I expected to feel when it had touched the skin, and that’s when I’d pull back.” (t 5‑68).

The Knife and the Wound

54. The knife used by the defendant was a kitchen knife, I would say a vegetable knife.  The blade is 13.5 centimetres long.  The defendant’s mother said she had recently bought it, had used it, and found it to be sharp.  I accept that; it accords with my observation of it.
55. The knife entered the front of the complainant’s neck, on his left side.  The entry wound was described in the medical records as being one to two centimetres long (t 4-21).  The track of the knife’s passage through the complainant’s neck was about five to five‑and‑one‑half centimetres long (t 4-22).  It went across the front of the complainant’s neck through fatty tissue and a small muscle.  It penetrated about half a centimetre into the thyroid gland on the right side of the complainant’s neck (t 4-6). 
56. The wound was superficial in the sense that it did not involve any of the deep structures of the neck (t 4-22).  Clearly enough though, it was closely adjacent to both the trachea and some of the major blood vessels in the neck.  The skin did not need stitching, but was closed with Steri-Strips.  It is obvious from the photographs of the assembly hall that the wound did bleed considerably at first (exhibit 10), but by the time the ambulance arrived, there was no active bleeding. 
57. Dr Mahoney’s evidence was that if the tip of the knife was sharp, only mild force would have been necessary to make the wound.  I accept that the knife, including its tip, was sharp and that therefore the wound was made using only mild force.  I accept that the skin would provide the most resistance to the entry of the knife.  The defence relied upon these facts and the fact that there was only one stab made to the complainant’s neck as indicating a lack of intention to kill.  No doubt in a case where a frenzied attack is made, consisting of multiple savage wounds, one can readily imply an intention to kill.  However, because this knife was sharp only mild force was necessary to push it into the neck of the complainant.  That does not negate intention to kill, nor does the fact that only one wound was made.  When I look at the whole of the evidence in the case, the facts that only mild force was necessary and that there was only one wound which was as I have described it, do not cause me to have a reasonable doubt about whether the defendant’s intention was to kill the complainant at the time of the stabbing.

Immediate Aftermath

58. There is no dispute that after he stabbed the complainant the defendant ran away.  He ran quite a considerable distance through nearby streets.  On his way he put the knife, which by then was back in its sheath, underneath an electrical power box.  Having run through several streets the defendant stopped and rang triple 0.
59. The defendant says that after he stabbed the complainant the complainant took a couple of steps, dropped his phone/torch, leaned over a bit, said, “What the F, and I was, like, wait, what?  And then he, like, made a – it was like, I thought it was a gargle sound sort of. … Like something that’s, like stopping him from breathing properly, and I freaked out and I ran.” (t 5-50).
60. The complainant’s version of the immediate aftermath of the stabbing was different from the defendant’s.  At its best for the Crown, the complainant’s evidence was that at first he did not realise that he had been stabbed, although he did feel some contact with his neck; it was only after he put his hand to his neck and then walked from the dark wings of the stage onto the stage itself where there was more light that he saw the blood and realised what had happened to him.  He then began to yell for help.  However, there was some inconsistency in the complainant’s evidence (perhaps not unreasonably in the circumstances) and he certainly did at times give a version of events where he immediately felt severe pain and realised something serious had happened almost straight away.  I am not confident enough in the complainant’s evidence about this to act upon it. 

Defendant’s Evidence

61. The defendant gave evidence, and called evidence.  I remind myself that the defendant is presumed to be innocent and has not, by giving or calling evidence, assumed a responsibility to prove his innocence, or anything else.  I remind myself that the burden of proof remained with the Crown. 
62. I accept some of the defendant’s evidence as truthful, but I reject crucial parts of it and I explain why in this section of my reasons.  I remind myself that my rejection of the crucial parts of the defendant’s evidence does not assist the Prosecution case.  I reason in accordance with the approach approved by the Court of Appeal in R v Armstrong.^[8]  I set aside the evidence of the defendant which I do not believe and consider the rest of the evidence, to see whether or not the Prosecution has discharged its burden of proving each element of the offences beyond reasonable doubt.
63. Although I have found that the defendant has deliberately given false evidence, I do not reason that he has done so because he is guilty.  That is, I do not use my conclusion that he has lied as evidence of his guilt.  That is so regarding both the evidence which he gave in Court and the out of Court statements he made to the triple 0 operator which he acknowledged were false.  Nor do I have regard to any conduct, such as running away after the stabbing, or concealing the knife, as something from which I could draw an inference of guilt.^[9]  Those actions (like his false words to the triple 0 operator) are not consistent only with guilt of the offences charged.
64. The defendant was an intelligent witness.  He was unusually responsive to questioning, including giving nuanced responses to sophisticated questioning.
65. The defendant was very aware of what the evidence was in the case against him.  See for example at t 5‑50 ll 5‑15 and ll 40-45 where that was express (as to wound depth and the immediate aftermath of the stabbing).  He was very aware of the contents of the documentary evidence against him in the case: see for example t 5-51 ll 35-40, where in chief he refers to the content of what he said to the triple 0 operator in order to deal with it; and see t 5-72 l 25 where he questions whether the cross-examiner has accurately put the “exact words” recorded in the transcript of the triple 0 call in her question.  See also t 5-71 l 45, where he retorts argumentatively in cross-examination by reference to what is contained (or in fact not contained) in the triple 0 transcript. 
66. I accept that the defendant disliked (or felt more extreme negative emotion towards) the complainant.  I accept that he bore resentment after the scuffle in Grade 9 and I accept that he became angry after the marshmallow fluff incident.  I accept the defendant was aggravated by the complainant in both the drama class and the religious instruction class.  I accept, because the defendant mentioned it to A, that in his mind his feelings for the complainant had become associated with his negative feelings about B.  However, I do not believe the defendant’s evidence about the development of a plan to scare the complainant by threatening him with, or giving him a jab with, the knife in order to teach the complainant not to treat women badly and not to bully other students.  I refer to passages such as those found at t 5-41, t 5-42, t 5-44 l 10, t 5-45 ll 1‑20, t 5-47 ll 1-10, t 5-47 ll 25‑35, t 5-60 ll 24-32 and t 5-64.  I have referred to some of this evidence at [16], [19], [20], [23], [40] and [49] above.  The idea that thoughts and emotions recalled after a Grade 9 schoolboy scuffle, gradually grew in intensity in a staged, logical response to specific behaviours of the complainant, right up until the ultimate decision made whilst sitting in religious instruction class, is quite unbelievable.  The defendant did not struggle to explain himself or his extreme emotions or behaviour.  He presented an elaborate, analysed explanation which, although by necessity involving admissions of wrongdoing, also contained the wrong‑headed-but-well-intentioned justifications for his actions.  In my view this evidence was false; a fabrication after the event.
67. In smaller ways this same self-justificatory, well-meaning, gloss was obvious in other parts of the defendant’s evidence.  For example, the defendant said he put the knife under the electrical power box because he thought, “I don’t want this knife on me”, but also thought, “I don’t want someone to stand on it, either” (t 5-51).  Likewise, he said he chose to lure the complainant to the dark part of the assembly hall to stab him because, inter alia, he did not want to scare anyone else.  In fact, in examination-in-chief this was the first reason he mentioned for luring the complainant to that area (t 5‑45), although he added that he did not want to be seen because he might get in trouble “as well” (t 5‑48).  In cross-examination he made candid admissions as to his reasons – he wanted to take him to the dark area of the auditorium to stab him in the neck (t 5‑65).
68. I feel that no-one who has listened to the recording of the telephone call the defendant made to triple 0 could fail to believe that he was genuinely extremely distressed at the time of that call.  Yet even in that state, the defendant tells the operator things which are not true and which are to his advantage.  He first says, very early on in the call, “I brought a knife to school because um I was going to threaten someone with it because he kept saying he was going to bash up my friend …”  The defendant accepted both in examination-in-chief and in cross-examination that the underlined part of that was not true, and that he said it as self-justification.  I see this as a significant example of the defendant’s propensity, and ability, to lie in order to make his actions seem more acceptable than they were.  I do not believe the part of this statement which I have not underlined – ie. About the defendant’s purpose being to threaten.  I see it as part of one falsehood, having regard to all the evidence in the case.
69. As part of my rejection of the idea that the defendant had a misguided plan to give the complainant a fright so as to improve his character, I reject the defendant’s evidence as to how he came to take the knife to school.  I do not believe that he considered taking a pin or tweezers to scare the complainant (t 5-43 and t 5-61).  The defendant was at the time an intelligent 14 year old boy; I am sure he did not think of taking a pin or tweezers to scare the complainant.  I do not believe the defendant’s evidence that the selection of the knife as a weapon to take to school was a last‑minute, or spur‑of‑the‑moment choice when he was in the kitchen to have a drink of water.
70. As to the conversation at morning tea, I disbelieve the defendant’s evidence that when he said he was going to kill the complainant he was just venting anger and did not have the intention to kill A.  The statement was made in a quiet, grim or serious way.  Notwithstanding A’s trying to talk the defendant out of his plan, the defendant did not resile from the statement.  The defendant’s statement of intent is consistent with his introductory remarks to A, that it may be the last time A wished to speak to him, and with his comment to A that he had been creating an internet search history to point to his being insane.  Having a misguided, but well-intentioned plan to change the ways of a school bully by jabbing him in the neck is something very much less consistent with the idea that A would never speak to the defendant again, or the idea that the defendant would need to rely upon a defence of insanity.  And the fact of the matter is that the defendant did not tell A of a plan to scare the complainant by giving him a relatively harmless jab with a knife; he told him that he was going to kill the complainant, and it was in that context that he made the two statements to A.  The defendant’s statement of intent at morning tea time is relevant to the inference I draw about his intention at the time of the stabbing. 
71. Throughout his evidence, the defendant used the verbs “jab” or “nick”^[10] in relation to what he said he planned to do to the complainant.  He did not use either of those words when speaking to A; the triple 0 operator, or to police.  I do not believe they were reflective of his contemporaneous intent.  I see them as euphemisms which he used in his evidence.
72. I do not believe the defendant’s evidence that he meant only to insert the knife a little way into the fatty part of the complainant’s neck, and that he deliberately aimed the knife at this part of the neck with the aid of the repositioned phone/torch.  I find the defendant was lying when he insisted on this version, as he did several times, in quite an elaborate way (t 5-48 l 45-t 5-49 l 10; t 5-49 ll 30-42; t 5-59 l 10, t 5-68 ll 4‑38).  It would appear that even after he conferred with his lawyers, he added the extra detail about him foreseeing the need for the phone/torch to be brought to the backstage area so he could aim the knife better – see [45], [46] and [47] above. 
73. To begin with, this scenario is physically implausible.  The defendant is and was a slight child; the complainant is and was much larger.  The defendant’s evidence was that he was standing beside and behind the complainant on his left side.  The defendant was left‑handed.  He used his right hand to cover the complainant’s eyes.  He was unable to quite manage to do this effectively – he partly covered the complainant’s eyes and partly his forehead (tt 3‑32‑33 per the complainant and t 5‑48 l 15 where the defendant comments on, and accepts, the complainant’s version).  I simply do not believe that the defendant had the time or physical capacity to re-cover the complainant’s eyes; reposition the complainant’s hand holding the phone/torch to shine on the complainant’s neck to allow the defendant a better aim; then remove the knife from the breast pocket of his blazer; free it from its sheath; position it some 10 centimetres from the complainant’s neck, pause, and then aim at a part of the complainant’s neck which he was confident contained nothing important.   
74. Apart from the physical implausibility, I do not believe the defendant had the presence of mind to make these deliberate and thoughtful preparations.  His own evidence is that, at the time he first covered the complainant’s eyes, he was “really freaking out” and “thinking should I go through with this” (t 5-48 ll 15-20).  He said that, having desisted with that attempt and re‑covered the complainant’s eyes, he “freaks out” again and closed his eyes and blindly stabbed the knife (tt 5‑49‑50).  I find that immediately after the stabbing the defendant was very distressed.
75. There is no mention of his having taken care not to hurt the complainant too much to the triple 0 operator, despite the defendant’s concern to make other exculpatory and self‑justificatory statements to the triple 0 operator.  In fact what he says to the triple 0 operator is something different:  “I stabbed him … in the throat … just once, then I realised what I had done and I started crying and ran” and further, “I’m pretty sure everyone knows he’s there … because he started screaming … the second I started to stab him I instantly realised and then pulled it back out before it got too far”.  The introductory words to the triple 0 operator are, “Um I think I just killed someone”^[11] and towards the end of the transcript the defendant says, “I want to die, the worst part is I’m not as sad as I should be”.
76. The defendant does not mention any care he took not to harm the complainant too much in his attempts to initiate conversation with the police as to whether or not he had killed the complainant; it would have been something sensible to mention in this context, had it been true.  I do not believe the defendant’s evidence that he was referring to the plan to only just harm the complainant when he told the police that he knew what he was doing (see [84] below).
77. The wound which the knife in fact made did not involve any vital structures.  The scans which are exhibit 19 show how close the track of the wound came to the complainant’s trachea and major blood vessels.  It travelled across the front of the complainant’s throat, just in front of his trachea.  I regard the fact that nothing vital was hit as good luck, not the result of deliberate action on the defendant’s part.  Notwithstanding the actual track of the wound, I do not believe the defendant’s evidence that he intended only to stab the complainant in a part of the neck which would not cause serious harm.
78. I do not believe the defendant’s evidence, which I set out at [59] above, that after the stabbing he heard a gargle sound from the complainant and that is why he ran away without delivering his threat and said afterwards that he thought he had killed the complainant.  This version of events is inconsistent with the complainant’s version of the aftermath of the stabbing – [60] – but, as outlined above, I am not confident in the complainant’s version of events and I do not act on it and do not reject the defendant’s version of events because it is inconsistent with the complainant’s version. 
79. There is no mention of the defendant’s hearing a gargling sound when he speaks to the triple 0 operator or to the police, and what the triple 0 operator is told (above) is something different to this.
80. The defendant’s evidence about his surprise at the gargling sound is really the end point of his false story that he took care to insert the knife into the complainant’s neck so as not to do much harm.  The logic of the story was: because the defendant took care in inserting the knife, he did not expect to do much harm and was thus surprised and panicked by the gargle sound, so that he abandoned his plan to tell the complainant to stop acting like a bully and ran away.  The defendant said, “Because I didn’t expect him to gargle, because I thought I just, like, got him a little bit.  And so, when he gargled, I thought that, like, somehow, I’d, like, gone in his windpipe, because you see how in, like, movies, they gargle, and then, like they start spitting out blood … and so I was like, oh, how deep did it go?” (t 5-50).  The defendant’s evidence of surprise at the gargling sound also accounts for his telling the triple 0 operator and the police that he thought he had killed someone.  The defendant said, “Well, I freaked out, and ran, and – and as I was running, I heard him yelling something, and I just – I was just focused on running, and so I just kept on running, and then once I got out of the school, I sort of thought, like, oh, he could, like, really be in danger, because he gargled and so I rung the police to, like, yeah, and to go to him.  I told them that I think I just killed someone.” (t 5-50).
81. As already explained, I do not believe that the defendant took care in stabbing the complainant to do him little harm.  In cross-examination the complainant accepted that he may have gasped, not gargled, at the time he was stabbed (t 3-34).  I understand his evidence as acknowledging that possibility, not more.  Just as I am not confident in the rest of his evidence about the immediate aftermath, I am not prepared to act on his acknowledging a possibility.  I do not accept that the defendant heard a sound which contradicted some expectation which he held (based on his care to do minimal harm) which sound caused the defendant to think his plan of carefully stabbing an unimportant part of the complainant’s neck had gone awry.

Police Interaction

82. When police arrived to attend to the defendant in response to his triple 0 call they did not activate their recording devices.  The defendant said that he said to them, “I think I just killed my mate” (t 5-52).  Both the police officers who were there were quite firm in their view that the defendant actually said “I just killed my mate” or “best mate” (t 5-14 and t 5-17).  I do not feel confident to resolve this conflict on the evidence I have, in those circumstances I accept the defendant’s version, for it is clear something was said.
83. The police turned on their recording equipment soon afterwards.  Police fairly quickly formed the view that the defendant ought to be taken to a hospital, and much of the time which passes while the tape was on is taken up with their organising that.  There are long periods where the police do not speak to the defendant at all.  I can hear the defendant’s breathing and vocal distress, and I accept that distress is genuine.  Notwithstanding the police do not attempt to investigate what has gone on in any serious way, the defendant makes spontaneous statements to them.  The first passage is as follows:

“[Police Officer]:Okay no dramas, so how old are you?

[Defendant]:Fourteen.

[Police Officer]:All right what year are you?

[Defendant]:Ten.

[Police Officer]:Year 10 all right mate how you feelin’?

[Defendant]:I don’t think I killed him though.

[Police Officer]:That’s all right mate I’ll just, before we go any further hey I just got to um let you know mate you do have the right to remain silent. Okay that is

[Defendant]:I don’t want to remain silent.

[Police Officer]:Hey hey just listen to what I have to say.

…”

84. The defendant tells officers that he does not want them to contact his parents.  There is then quite a passage of time during which the police officers speak amongst themselves, apparently attempting to find contact details for the defendant’s parents.  In that time the defendant volunteers, “I knew what I was doing”. 
85. While the police officers are speaking amongst themselves, the defendant initiates conversation:

86. The defendant accepted that the passage relating to A in the above transcript was a reference to the conversation at morning tea in which he told A that he was going to kill the complainant (t 5-63).

Defendant’s Previous Behaviour

87. As discussed at [36] above, there was some evidence that the defendant said odd things from time to time and liked to scare his friends as a joke or game – (see tt 5‑40‑41 for the defendant’s own description of a game like this).  A said the defendant liked to sneak up on people and scare them (t 4‑10).  A said the defendant would threaten to cut people as banter, and the defendant also gave evidence that he did so.  I can see that in another case, defence might ask for a direction that a jury disregard this sort of evidence as prejudicial and likely to be used wrongly to show a propensity.  I do not use the evidence to reason that the defendant had a propensity to commit the type of offences alleged against him.  I do not use it as support for the Crown case.  In this case, the defence relied on this evidence as raising a reasonable doubt (1) that what the defendant said at morning tea was not a serious statement of intent to kill; and (2) that the defendant was someone who would plan to scare the complainant as a means of teaching him not to be a bully, as he said in his evidence. 
88. The evidence does not cause me to have a reasonable doubt.  It was quite vague and impressionistic evidence except for the one game to which I refer above.  The defendant’s habit of saying odd things was the reason A gave for not taking the defendant’s statements at morning tea seriously enough to tell anyone in authority about them.  But that attitude on A’s part cannot determine the matter for me, I must look at the whole of the evidence in this trial.  There is direct and relevant evidence that bears on the defendant’s intention at the time of the stabbing.  Evidence that on other occasions he said odd things, or liked to scare his friends in play, does not cause me to have a reasonable doubt as to his intention at the time of stabbing the complainant, or his evidence about whether he meant what he said to A at morning tea.

Motive

89. I cannot understand how the complainant’s interactions with the defendant gave the defendant a motive to kill the complainant.  In considering motive I of course remember that the defendant was 14 at the relevant time, not an adult.  The complainant’s behaviour toward the defendant was relatively minor, and relatively normal.  His conduct does seem to have become associated in the defendant’s mind with conduct of B towards the defendant’s mother.  I have given this earnest consideration, for the absence of a motive must logically bear on whether or not there was intent to kill.  I also consider that the complainant’s behaviour does not provide sufficient motivation for a reasonable child of 14 to form a plan to give the complainant a relatively harmless jab in the neck with a kitchen knife in order to induce better behaviour in the future.
90. In the end, that I cannot understand the defendant’s motive does not mean that there was no intention to kill, and in the circumstances of this case does not cause me to have a reasonable doubt about the existence of an intention to kill.

Elements of the Offence of Attempted Murder

91. It is unlawful to kill another person unless the killing is authorised, excused or justified by law.  Killing means causing death.  Unlawful killing amounts to murder where, relevantly, the perpetrator intends, or means, to kill the victim.
92. Section 4(1) of the Criminal Code provides that when a person, intending to commit an offence, begins to put the person’s intention into execution by means adapted to its fulfilment, and manifests their intention by some overt act, but does not fulfil their intention to such an extent as to commit the offence, the person is said to attempt to commit the offence.  Section 4(2) provides that it is immaterial to my task on the trial whether the offender does all that is necessary on his part to complete the commission of the offence or whether the complete fulfilment of the offender’s intention is prevented by circumstances independent of his will, or whether the offender desists of his own motion from the further prosecution of his intention.
93. In this case the greatest controversy has involved intention.  Putting aside the evidence which I do not believe, and looking at the remaining evidence in the case, I do find that the Crown has proved beyond reasonable doubt that the defendant intended to kill the complainant at the time he stabbed him.  I find that is the only rational inference to be drawn in all the circumstances.  The defendant was angry and upset with the complainant.  He took a sharp sizeable knife to school.  He told his good friend A that he was going to kill the complainant.  The statement was made seriously, accompanied by two statements which showed that the defendant had thought about the consequences of what he said he would do.  He lured the complainant to a dark place, where there were unlikely to be other people, by telling him a falsehood.  He did this in order to stab him in the neck.  Once there he engaged in false behaviour to prevent the complainant observing him taking the kitchen knife from his blazer pocket and freeing it from its sheath.  He stabbed the knife into the complainant’s neck.  He said afterwards that he thought he had killed the complainant.  It was the first thing he said to both the triple 0 operator and the police.  He twice more raised with police the question of whether he had killed the complainant, and referred the police to the conversation he had with A. 
94. I find that the defendant began to put his intention into execution by stabbing the complainant in the neck with a knife, clearly enough means adapted to its fulfilment and, clearly enough an overt act.  Because of the knife’s trajectory the intention was not fulfilled.  I find that this was only through chance – a circumstance independent of the defendant’s will; that is immaterial to my verdict – see s 4(2).  It may be that, in line with what the defendant told the triple 0 operator, he desisted of his own motion after he had first stabbed the complainant in the neck.  Again that is immaterial to my verdict – see s 4(2).

Irrelevant Matters

95. When police went to the defendant’s home after the stabbing they found a piece of paper in the defendant’s writing headed “[defendant’s] soul list”.  The list showed the names of a number of boys in the defendant’s class at school.  Each had a box drawn beside it.  The box against the name of the complainant was ticked.  It was the only box ticked.  As well, in a ceramic jar in the top shelf of the defendant’s wardrobe, was a little slip of paper with the writing, “[complainant] soul”.  There was evidence that the defendant played a computer game in which players gained points or advantage by killing zombies in order to keep their souls. (eg t 5-10).  There was also evidence that at times the defendant referred to himself as a soul-keeper (exhibit 23).
96. The defendant’s mother gave evidence that she found these pieces of paper well before the incidents I am concerned with.  As well there was evidence from A that the pieces of paper were written on by the defendant in Grade 9 (tt 4‑10‑11).
97. The evidence was that some of the names on the soul list were names of boys who the defendant was friends with.  There was no opportunity for the defendant to have made the tick against the complainant’s name after the stabbing. 
98. The defendant gave evidence that the soul list and the piece of paper with the complainant’s name on it were part of a game which he had made up (t 5-36).  Perhaps the original inspiration for that came from the computer game.  Given the corroborating evidence of the defendant’s mother and A, I accept that the pieces of paper were related to that game.  I do not have regard to that evidence in deciding what intention the defendant had when he stabbed the complainant.  It would be a mistake to use it as bearing on intention when it could only be relevant if one made numerous assumptions as to the defendant’s understanding or belief as to a soul’s relationship to a living person etc etc.  None of this was explored in evidence.  In fact the Crown disclaimed reliance on the evidence in addresses.  Had this matter proceeded before a jury, I would have warned the jury to take no notice of the evidence and warned the jury that they must be careful to avoid making assumptions that were not explored in evidence and which might be emotive and prejudicial rather than rational.  I disregard the evidence.
99. I also disregard the evidence that the defendant spent a lot of time playing computer games, some of which seemed to have been violent.  Again, had there been a jury in this case I would have warned the jury to disregard the evidence on the basis that there was no basis for assuming it was relevant to the defendant’s intention at the time of the stabbing and that they should avoid assumptions about the effect of violent computer games.  There was no evidence in this case which would allow me to have any regard to this as relevant.