R v WBV[2022] QSC 101

SUPREME COURT OF QUEENSLAND

INDEX

Overview[3]

General directions[18]

The law applicable to the offences[20]

Count 1 – Attempted murder[20]

Count 2 – Unlawful dealing with noxious substances[29]

The Crown case[45]

The relationship between the defendant and FTS[45]

More background: the defendant’s mental health history[48]

Events of 26 July 2019[53]

Paramedics[65]

Evidence of examination of WFM[70]

Dr Ehya Uddin[71]

The defendant’s interview with Senior Constable Lyndon Hobbs…...[72]

Atmospheric testing evidence[73]

Pathologists[79]

The defendant’s interview with Senior Constable Brian Enright………...[84]

The defence case[85]

Evidence of Dr Velimir Kovacevic[86]

Consideration and verdict[89]

Count 1[89]

Count 2[101]

Did the defendant make a “noxious substance”?[101]

Was the substance made wilfully?[104]

The “circumstances”[111]

“Might cause injury to any person”[112]

1. [1]
   The indictment alleges:

“That on the twenty-sixth day of July, 2019 at Mudjimba in the State of Queensland, [WBV] attempted to murder [WFM].”

2. [2]
   I shall refer to that charge as Count 1.  Alternatively, the defendant is charged in Count 2:

“That on the twenty-sixth day of July, 2019 at Mudjimba in the State of Queensland, [WBV] wilfully and unlawfully made a noxious substance in circumstances that could have caused injury to a person.”

Overview

3. [3]
   On 26 July 2019, WFM, the defendant’s daughter, was four years old and lived with her mother in a house at Mudjimba, on the north side of the Maroochy River.  WFM’s father is FTS.  He had been in an intermittent relationship with the defendant over a number of years. 
4. [4]
   Each party to the relationship alleged that the other behaved badly.  From the defendant’s perspective, it was said that FTS was coercive and his behaviour towards her was the cause of much anxiety.  Between WFM’s birth and July 2019, the defendant had a number of mental health episodes of a kind that raised concerns about self-harm. 
5. [5]
   On 24 July 2019, FTS travelled to Thailand.  He had ongoing phone contact with the defendant, and this included some communication that she found distressing. 
6. [6]
   On the morning of 26 July 2019, the defendant and WFM went out to buy some groceries, and the defendant bought four bottles of white wine.   
7. [7]
   Upon returning home, and over the course of the afternoon, the defendant drank some of this wine and wrote two notes.  These were confused but articulated suicidal ideation.  They were discarded and later found in a garbage bin.
8. [8]
   The defendant’s vehicle was a diesel-powered Mercedes Benz ML350 station wagon.  An analysis of its control chip indicates that the motor was ignited at 3:28pm and then ran for 80 minutes.
9. [9]
   At 4.46 pm, the defendant sent two text messages to her sister.  The first read: “[WFM] is nearly gone, and me too. Gassing ourselves”.  The second message, “Goodnight beautiful”.  The defendant’s sister immediately contacted a friend of hers, Ms Walton, who lived close to the defendant.
10. [10]
    Ms Walton immediately travelled to the defendant’s residence.  She could hear a car running and knocked on the closed external garage door.  There was no response.  By climbing onto a garbage bin, access was gained into the residence.
11. [11]
    Upon entering the garage, she saw the apparently sleeping defendant in the reclined driver seat.  The driver’s door was open; there was an open bottle of wine next to the door and a wine glass in the centre console.  WFM was on the front passenger seat. She also appeared to be asleep.  The vehicle was still turned on.  Ms Walton then roused the defendant and WFM.  The defendant told Ms Walton that everything was fine and that she could go. 

12. [12]
    Ms Walton admonished the defendant for having WFM in the car with her and gassing herself, to which the defendant replied, “[i]t’s diesel. You can’t gas yourself with diesel”.

13. [13]
    No physical impairments were observed or revealed by subsequent tests to either the defendant or WFM. 
14. [14]
    The visual scenario that presented to Ms Walton would, conventionally, give rise to concern about death from carbon monoxide poisoning.  Notwithstanding the confronting nature of the scene described, scientific evidence establishes that although the air in the garage may have had a “noxious” quality, the likelihood of death was very remote. 
15. [15]
    The Crown nevertheless submits the evidence establishes that this was a case of an attempted suicide which, in the circumstances, amounted to an attempt also to kill WFM. 
16. [16]
    The defendant has, both at the scene and in evidence, asserted that she did not intend harm to herself or her daughter.  For both sides, it was agreed that for the purposes of the attempted murder charge, the functional question was as to the defendant’s intention.
17. [17]
    The charge brought pursuant to s 470A of the Criminal Code (Qld) (‘the Code’) is not as straightforward.  There is no controversy as to the legal meaning of the word “wilful”.  However, there is a need to inquire as to the nature of a “noxious substance” and an “injury” for the purposes of the section.  There is also a need to identify the relevant “circumstances” and consider the application of s 24 of the Code.

General directions

18. [18]
    This was a criminal trial conducted without a jury under Chapter 62 Division 9A of the Code.  In these circumstances, I am required to record the applicable principles of law and the findings of fact on which I have relied.^[1]
19. [19]
    I direct myself as follows:

    1. (a)
       The burden rests on the prosecution to prove the guilt of the defendant.  She is presumed to be innocent and may be convicted only if the prosecution establishes that she is guilty of at least one of the offences charged.
    2. (b)
       For the prosecution to discharge its burden of proving the guilt of the defendant, it is required to prove beyond reasonable doubt that she is guilty.^[2]  This means that in order to convict I must be satisfied beyond reasonable doubt of every element that goes to make up the offence charged.  If I am left with a reasonable doubt about the guilt of the defendant, my duty is to acquit; that is, to find her not guilty.  If I am not left with any such doubt, my duty is to convict; that is, to find her guilty.
    3. (c)
       Proof beyond reasonable doubt is the highest standard of proof known to the law.  It can be contrasted with the lower standard of proof that is required in a civil case where matters need only be proved on the balance of probabilities.
    4. (d)
       My consideration of this case must be unaffected by any feelings of sympathy or prejudice, whether it be sympathy for or prejudice against the defendant or anyone else involved in the trial.  No such emotion has any part to play in my decision.  I must approach my duty dispassionately, and decide the case only on the evidence.
    5. (e)
       “Evidence” means admissible evidence presented to me in Court.  I must not take into account any outside information or other outside influence.  I must not make my own enquiries or investigations about the case or anyone connected with the case.
    6. (f)
       I may accept evidence in whole or in part. It is for me to decide whether I accept the whole of what a witness says or only part of it or none of it.  I may accept or reject such parts of the evidence as I think fit.  It is for me to decide whether a witness is telling the truth and correctly recalls the facts about which he or she has testified.
    7. (g)
       If I am to draw an inference, I must be satisfied that it is a reasonable one to draw from facts that I find have been established by the evidence.  I must not engage in speculation or conjecture to fill in any gaps in the evidence.  It is up to me to decide whether I accept particular evidence and if I do, what weight or significance it should have.^[3]
    8. (h)
       Importantly, if there is an inference reasonably open which is adverse to the defendant (that is, one that points to her guilt) and an inference in her favour (that is, one that might be consistent with a reasonable doubt about her guilt), I must give the defendant the benefit of the inference in her favour. 
    9. (i)
       No adverse inference can be drawn because the defendant has been charged with attempted murder.  Nor can any adverse inference be drawn from the fact that she was guarded by Corrective Services Officers while in the court. This is a routine practice.
    10. (j)
        The defendant faces alternative charges.  I may not, therefore, find the defendant guilty of both.  I may consider the possible verdicts in any order, but will in the circumstances first consider the attempted murder charge, which is the more serious.  If I find the defendant guilty of that offence, I do not need to consider the other offence.  However, if I find the defendant not guilty of attempted murder, then I will have to consider the alternative charge of unlawful dealing with noxious substances.
    11. (k)
        The defendant did not have to give evidence or call another witness to give evidence on her behalf or otherwise produce evidence.  The fact that she has given and called evidence does not mean that she assumed a responsibility of proving her innocence.  The burden of proof has not shifted to her.  Her evidence, and the evidence of Dr Kovacevic, is added to the evidence called by the prosecution.  The prosecution retains the burden of proving each of the elements of the offence beyond reasonable doubt and it is upon the whole of the evidence that I must be satisfied beyond reasonable doubt that the prosecution has proved the case before the defendant may be convicted. 
    12. (l)
        It is therefore not a question of my making a choice between the inference to be drawn from the prosecution’s evidence and the evidence given and called by the defendant.  The proper approach is to understand that the prosecution case depends on my accepting that the prosecution’s evidence allowed for a conclusion of guilt beyond reasonable doubt to be drawn, despite the sworn evidence by the defendant.
    13. (m)
        It follows that I do not have to believe that the defendant is telling the truth before she is entitled to be found not guilty.  In circumstances where the defendant has given evidence, there is one of three possible results which will follow:

        1. I may think the defence evidence is credible and reliable, and that it provides a satisfying answer to the prosecution’s case.  If so, my verdict would be not guilty; or
        2. I may think that, although the defence evidence was not convincing, it leaves me in a state of reasonable doubt as to what the true position was.  If so, my verdict will be not guilty; or
        3. I may think the defence evidence should not be accepted.  However, if that is my view, I must be careful not to jump from that view to an automatic conclusion of guilt. If I find the defence evidence unconvincing, I am to set it to one side, go back to the rest of the evidence and ask myself whether, on a consideration of such evidence as I do accept, I am satisfied beyond reasonable doubt that the prosecution has proved each of the elements of the offence.
    14. (n)
        What the defendant has said while giving evidence may be used for or against her.
    15. (o)
        Included in the evidence was a recorded conversation between the defendant and Lyndon Hobbs, and a recorded interview between the defendant and Senior Constable Brian Enright.  This evidence is in the form of an audio recording and video recording respectively.  I have seen and heard these recordings played, and am entitled to have them played again as often as I wish. 
    16. (p)
        During the course of the trial, I was given a transcript of the defendant’s interview with Senior Constable Brian Enright to look at while the recording was played.  The transcript is someone else’s opinion of what was said by the Senior Constable and the defendant, and although it may have been of some help, it is for me to determine what I heard and saw.  If my view of any part of the conversation differs from what the transcript shows, it is my view that must prevail.
    17. (q)
        In the course of these conversations, the defendant answered questions that were asked of her and it is in her answers that the evidence is to be found.  In some of those answers, and in particular in those which she spoke about her intention, the defendant said things that may raise a doubt about her guilt.  I may have regard to those answers and give them whatever weight I think appropriate, bearing in mind that, unlike her evidence in court, these answers were not tested in cross-examination.
    18. (r)
        It is suggested that in the course of both these conversations and in the course of her evidence the defendant was telling lies.  It was not suggested that, even if I was to find this to be the case, these lies were of such a nature that any inference of guilt could be drawn from them.  If I conclude that defendant deliberately told lies, that is relevant only to her credibility.  Specifically, it was suggested that I should consider whether the defendant had a tendency to minimise aspects of her behaviour, and that I should consider this when assessing the weight to be given to her assertions about her state of mind.  It is for me to decide whether those suggested lies affect her credibility, but I cannot follow a process of reasoning to the effect that just because the defendant may have been shown to have told a lie about something, that is evidence in any way of guilt.
    19. (s)
        As discussed below, the prosecution alleges that the defendant (in the case of Count 1) had a specific intent.  The defendant denies this, but the prosecution insists that her assertions can be displaced by the inference to be drawn from a number of circumstances.  I have already addressed the way in which I must deal with the drawing of inferences.  In order to bring in a verdict of guilty based entirely or substantially upon circumstantial evidence, it is necessary that guilt should not only be a rational inference but also that it should be the only rational inference that could be drawn from the circumstances.  If there is any reasonable possibility consistent with innocence, it is my duty to find the defendant not guilty.  This reflects the requirement that guilt must be established beyond reasonable doubt.
    20. (t)
        A number of expert witnesses were called to give evidence, including a Dr Ehya Uddin (a psychiatric registrar), Mr Zachary Murden (a Mercedes Benz technician), and Dr Velimir Kovacevic (a psychiatrist).  The ordinary rule is that witnesses may speak only as to facts and not express their opinions.  An exception to the general rule is that persons duly qualified to express some opinion in a particular area of expertise are permitted to do so on relevant matters within the field of their expertise.  The fact that such witnesses are referred to as experts does not mean that their evidence has to automatically be accepted.  I am the sole judge of the facts and I am entitled to assess and accept and reject any such opinion evidence as I see fit.  It is up to me to give such weight to the opinions of expert witnesses as I think they should be given, having regard in each case to the qualifications of the witness, whether I thought them impartial or partial to either side and the extent to which their opinion accords with whatever other facts I find proved.  It is up to me to decide what weight or importance I give to their opinions or indeed whether I accept their opinions at all.  It is important to remember that an expert’s opinion is based on what the expert witness has been told of the facts.  If those facts have not been established to my satisfaction, the expert’s opinion may be of little value.
    21. (u)
        The evidence of two expert witnesses was given by audio-visual link.  Dr Ehya Uddin was the psychiatry registrar who attended on the defendant on 26 July 2019 and Dr Velimir Kovacevic was the psychiatrist who saw the defendant early this year.  I direct myself in accordance with s 39PB of the Evidence Act 1977 (Qld) that I must not give the evidence of either Dr Uddin or Dr Kovacevic any more or less weight or draw any adverse inferences against either of the defendants only because these experts gave the evidence by audio-visual link.
    22. (v)
        The prosecution relies on evidence to prove that the defendant had a motive to kill herself and, given the circumstances, submits that motive can be taken into account when determining whether it was her intention to kill her daughter.  I direct myself that the motive by which a person is induced to do an act or form an intent is immaterial to the question of criminal responsibility.  If in fact I decide that the evidence is not evidence of motive, that does not necessarily mean that the prosecution has failed to prove guilt because of lack of motive.  In that event, I would have to base my verdict on the evidence that I do accept.  However, the existence of motive can be an important factual issue, particularly in a circumstantial case where the prosecution asks the Court to infer guilt which, in this case, involves drawing an inference that an act was done intentionally.  If there is motive, then what might otherwise be inexplicable becomes explicable.  I must bear in mind that the existence of motive without any more would not be sufficient to found a finding of guilt.

    23. (w)
        Evidence was received about the nature of the relationship between the defendant and FTS.  This was admitted for the limited purposes of establishing that the defendant perceived the relationship to be dysfunctional.  The deeper that perception went, so the prosecution submits, the greater was the defendant’s motive to kill herself.  In the circumstances, this supported the existence of an intention to kill WFM.  That was the extent to which this evidence could be used.  To the extent that any evidence about the defendant’s behaviour towards FTS, or indeed about any aspect of her behaviour, might have been thought to reflect adversely on the defendant’s character or conduct apart from that included in the offence charged, it has been ignored. No other inference, be it about propensity or anything else has been drawn from any such evidence.

The law applicable to the offences

Count 1 – Attempted murder

20. [20]
    Our law provides that “any person who attempts to unlawfully kill another … is guilty of a crime.  The offence involves two legal concepts – the law of attempt and the law of murder.  In law, an “attempt” is defined in the following way:

“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 the person’s intention by some overt act, but does not fulfil the person’s intention to such an extent as to commit the offence, the person is said to attempt to commit the offence.”

21. [21]
    Strictly for the purposes of this offence, I adopt this part of the law applying to the offence of murder:

“If a person unlawfully kills another and intends to cause the death of the person killed, they are guilty of murder.  It is unlawful to kill any person unless such killing is authorised or justified or excused by law.”

22. [22]
    Before I could convict the defendant, I would need to be satisfied beyond reasonable doubt of four things:

    1. (a)
       That, at the time when WFM entered the vehicle, the defendant had an intention to kill WFM.
    2. (b)
       That the facilitation of WFM’s entry into the vehicle was in fact a manifestation of that intention.
    3. (c)
       That when the defendant began to give effect to her intention to kill, she did so in a way that was suitable to bring about what she intended to achieve.  That is, I would have to be satisfied that by facilitating the entry of WFM into the vehicle, which at the time had its motor running and was in a confined space, the defendant was doing something that was capable of killing someone.
    4. (d)
       That the attempt to kill was unlawful.
23. [23]
    As to the requirement identified in [22](d) above, it is unlawful to kill any person unless it is authorised, justified or excused by law.  In this case, it is agreed that if in the circumstances the defendant had in fact killed WFM, it would have been unlawful.  That is, no authorisation, justification or excuse is suggested to be relevant.
24. [24]
    Each of the steps identified in [22](a) to [22](d) will involve consideration of the defendant’s intention. Specifically, the offence of attempted murder requires proof by the prosecution beyond reasonable doubt of an intention to kill. 
25. [25]
    Intention is a state of mind.  “Intent” and “intention” are familiar words.  In this legal context, they carry their ordinary meaning.  In ascertaining the defendant’s intention, I may draw an inference from the facts which I find established by the evidence concerning her state of mind.  Intention may be inferred or deduced from her and from the conduct of the defendant before, at the time of, or after the defendant engaged in the conduct giving rise to the charges.  I may draw a conclusion about the defendant’s intention from what she said or what she did.  In this case, I must consider whether I could infer that the defendant did have a specific intention at the time when WFM entered the vehicle, namely, whether the defendant meant her conduct to cause the death of WFM.
26. [26]
    By application of s 28(3) of the Code, intoxication may be relevant if intention to cause a specific result is an element of the offence charged.  Although the word “intent” does not appear in s 306(1)(a) of the Code, it is nevertheless necessary in this case to consider whether the defendant had an intention to cause a specific result (death).  I find that s 28(3) is applicable and that intoxication may therefore be regarded for the purpose of ascertaining whether such an intention in fact existed.  I also find that there is, in the defendant’s own testimony, sufficient evidence to discharge the evidentiary onus and to require me to consider this issue.
27. [27]
    I have already identified the principles that must be applied when drawing inferences. If more than one inference is reasonably open, then I must give the defendant the benefit of the inference in her favour.  In this context, that means that if I could infer that the defendant’s intention may not have been an intention to kill, but may have been an intention only, for example, to attract attention, make FTS feel guilty, seek assistance, or secure any other result apart from death, and if such inference is reasonably open, then I would have to give the defendant the benefit of acting on that inference.
28. [28]
    In sum, before I could convict of attempted murder, I would have to conclude that the defendant intended to kill WFM.  Unless that is the only inference reasonably open on the evidence that I accept, I must find the defendant not guilty of this charge.  I also have to conclude that she began to implement that intention by facilitating the entry of WFM into the vehicle and that the act of securing her presence in the vehicle was something that was suited to the purpose of killing WFM.  Those conclusions would have to be reached beyond a reasonable doubt.

Count 2 – Unlawful dealing with noxious substances

29. [29]
    I propose to address Count 2 by posing to myself the following questions:

    1. (a)
       Did the defendant make a noxious substance?
    2. (b)
       If so, did she do so wilfully?
    3. (c)
       If so, did she do so in such circumstances that may cause injury to any person?
    4. (d)
       If so, did she honestly and reasonably believe that the circumstances were such that injury to any person would not be caused?
30. [30]
    I therefore approach this case by considering whether, as a result of the defendant’s starting the vehicle and letting it run in a confined space, the air in the garage at the point of Ms Walton’s intervention had become a “noxious substance”.
31. [31]
    Whether the air in the garage was a noxious thing will depend upon the quantity of different substances in it.  A substance which in itself is not a noxious thing may be a noxious thing if administered in sufficient quantity.  It is for the Crown to establish that the quantity of the substances in the air was such as to make it noxious.  This becomes a question of fact and degree. 
32. [32]
    The word “noxious” is not defined in the Code.  However, it is defined in:

    1. (a)
       the Australian Oxford Dictionary as “harmful, unwholesome”;
    2. (b)
       Merriam-Webster online as “physically harmful or destructive to living beings…”; and
    3. (c)
       the Macquarie Dictionary as “harmful or injurious to health or physical wellbeing”.
33. [33]
    I should then consider whether the defendant intended to create that situation, or whether she was aware that by running the vehicle in that situation it was likely that the air in the garage would be turned into a noxious substance, but she recklessly allowed the vehicle to run regardless of that risk.
34. [34]
    I must then consider what is meant, for the purposes of this section, by “circumstances”.  In its original form, s 470A of the Code proscribed the “unlawful deposition of explosives”.^[4]  It was made illegal to “throw, leave down or otherwise deposit” any explosive substance under such circumstances that “may cause injury to any person to (any) property”.^[5]
35. [35]
    The fact that the offence was complete upon “deposition”, and did not depend upon ignition or explosion, suggests that the legislature contemplated that the injury or damage might occur at some time after the action taken by the accused.  The “circumstances” were therefore not confined to those that existed as at the moment of “deposition”.  One obvious example might include a situation in which an explosive substance was left in an empty room in circumstances where it was known that the room would soon fill with people.
36. [36]
    A series of amendments widened the effect of the provision to embrace the concept of “noxious substances” and to widen the concept of “deposition” to include “making” and “having the possession of” the substance in question.  Other changes are not relevant for current purposes.  None of these amendments could be thought to confine the attention of the section only to the “circumstances” as they existed at the moment of “deposition, or “making”.
37. [37]
    For the purposes of this case, the “circumstances” might be taken to include the facts that the vehicle was in a confined space, its engine was running, and there was sufficient fuel to keep it running for some time.  Although there was no certainty as to the length of time for which that situation might persist, it was curtailed by the intervention of Ms Walton.  The relevant circumstances fall to be assessed as at the time she arrived which was when, due to ventilation, the air could no longer be made into a noxious substance.
38. [38]
    “Injury” is not defined by the Code for the purposes of this section.  The word is (relevantly) defined in:

    1. (a)
       the Australian Oxford Dictionary as “physical harm or damage”;
    2. (b)
       Merriam-Webster online as “hurt, damage, or loss sustained”; and
    3. (c)
       the Macquarie online dictionary as:

1. “1.
   harm of any kind done or sustained: to escape without injury.
2. 2.
   a particular form or instance of harm: severe bodily injuries…”

39. [39]
    Common to both the definitions of “noxious” and “injury” is the concept of “harm”.  The Australian Oxford Dictionary defines “harm” as “hurt, damage”.
40. [40]
    The use of the word “injury” in s 470A of the Code stands apart from the use, elsewhere in the Code, of terms such as “bodily harm”.  I should nonetheless accept the submission, advanced by both sides, that an “injury” involves “harm” of a nature that is something more than a momentary or transitory sensation.
41. [41]
    It is an element of this offence that its commission be unlawful.  Apart from the need to assess the honesty and reasonableness of her beliefs, there is nothing in the evidence that requires me to consider whether the defendant’s behaviour might have been lawful.
42. [42]
    As to those beliefs, it is argued on behalf of the defendant that she might honestly and reasonably, but mistakenly, have believed that the circumstances she created could not cause injury to a person.  That is, she may have honestly and reasonably believed that the emissions from burning diesel fuel in an enclosed space could not cause an injury to a person.  If I conclude that in fact injury could be caused to a person in the circumstances, but the defendant might have honestly and reasonably believed otherwise, she will not be criminally responsible to a greater extent than if such emissions could not cause injury to a person in the circumstances.  That would mean she should be found not guilty of the offence. 
43. [43]
    In this context, a mere mistake would not be enough, the mistaken belief must have been both honest and reasonable.  An honest belief is one which is genuinely held by the defendant.  To be reasonable, the belief must have been one held by the defendant, in her particular circumstances, on reasonable grounds.

44. [44]
    There is no burden on the defendant to prove that she made a mistake of fact.  The prosecution must satisfy me beyond reasonable doubt that she did not do so.  If the Crown prove to my satisfaction beyond reasonable doubt that the defendant did not honestly hold the relevant mistaken belief about whether the emissions could cause injury to a person in the circumstances, or that the belief was not reasonable, then I would find that the defence of mistake of fact does not apply.

The Crown case

The relationship between the defendant and FTS

45. [45]
    FTS is the former partner of the defendant and the father of WFM.  The prosecution submitted that there were “opposing characterisations of that relationship”, in that each party alleges that the other was abusive.^[6]  FTS (in the Crown case, and the defendant in hers) gave extensive evidence in which these “opposing characterisations” were developed.  Such evidence was also given by the defendant’s mother, father and sister. 
46. [46]
    I cannot, and do not need to, resolve all the conflicts in this testimony.  I do find that the defendant was confused, to the point of distraction, about the state of the relationship.  Even whilst some part of her held some hope for a future with FTS, on another level she was resolute that no such thing would happen.  She was furious with him for many reasons, and felt that he had manipulated her, demeaned her, (literally) driven her to drink, and generally made her life unbearable. 
47. [47]
    It was the combined effect of these perceptions, fuelled by alcohol, that placed her in the car on 26 July 2019.  The evidence compels that conclusion.  That might have meant she thought life seemed, simply, unliveable.  Or it might have made her think that in its then form, although it was unbearable, it might improve if she received more attention and assistance, and if opprobrium was directed to, and quickly felt by FTS.  However, an assessment as to the state of the relationship cannot and does not allow for a further conclusion that would permit differentiation between these possibilities.

More background: the defendant’s mental health history

48. [48]
    The defendant had a history of potentially relevant behaviour.
49. [49]
    On 17 March 2018, the defendant stated to FTS’s mother that she did not want to live anymore, and she was taking WFM with her.  The police attended the defendant’s residence.  She had consumed one bottle of wine that evening and consumed an increased dosage of her prescribed anti-depressants.  She was voluntarily transported to Nambour Hospital, where she denied overt depressive symptoms and having suicidal plans or intent.
50. [50]
    After being discharged, on 18 March 2018, the defendant left a message with Mental Health Services reflecting ongoing suicidal ideation and a plan to kill herself and WFM by jumping in the pool.  She had consumed more than a bottle of wine that evening.  After denying that she had made those statements, the defendant was involuntarily transported to Nambour Hospital where she denied having suicidal intent or a plan.  She was released on 22 March 2018.
51. [51]
    On 17 June 2018, the defendant sent to her psychologist a message that indicated she planned to cut her wrists.  Police and ambulance officers attended her residence at the time.  She was transported to Nambour Hospital under the Mental Health Act 2016 (Qld) for assessment and discharged on 28 June 2018.
52. [52]
    On 12 January 2019, the defendant contacted the Lifeline phone counselling service and indicated she was having suicidal thoughts.  When police and a clinical nurse attended the defendant’s residence, she denied an intention to act on those suicidal thoughts.  She was neither admitted nor detained. 

Events of 26 July 2019

53. [53]
    CCTV footage from the local shopping centre for 26 July 2019 depicts the defendant, accompanied by WFM, buying groceries and four bottles of wine.
54. [54]
    After returning home, at indeterminate points during the day, the defendant wrote two notes.  They were later found by the police in a rubbish bin at the defendant’s residence.  One note stated the following:

“[FTS] Killed us!!

My estate goes to Boys + [WFM][…] I couldn’t do any more sorry.”

55. [55]
    Another note stated the following:

“The abuse has been too much!!

No one understands

I leave my estate to [WFM] + Boys

[FTS] has killed two beautiful girls

He destroyed my life and told me how worthless I am, how spoiled my kids are

I’m checking out because he said [WFM] was my fault and I’m a shit mother”

56. [56]
    At 3:47pm, the defendant’s sister sent a “check-in” message.  The defendant then replied at 4:46pm: “[WFM] is nearly gone and me too. Gassing ourselves”.  A subsequent message, sent within the minute, read: “Goodnight, beautiful”.
57. [57]
    The defendant’s sister was not at home at the time of receiving these messages.  Consequently, she contacted her friend, Ms Walton, who lived near the defendant, and sent her this message: 

“Hey hun. If you are home, can you pop over to [the defendant’s] house? I just got a fucked-up message that she is gassing herself and [WFM]. I can’t get there quick. X. So sorry.”

58. [58]
    Ms Walton attended immediately at the defendant’s residence. 
59. [59]
    She gave evidence, which was unchallenged, that:

    1. (a)
       the front gate was locked and that she managed to unlock it by climbing on top of a wheelie bin;
    2. (b)
       she had to access the house by entering via an unlocked door at the side of the house;
    3. (c)
       the garage and internal garage door were closed, the car was on and the door on the driver’s side of the car was open;
    4. (d)
       the defendant and WFM were asleep in the car, and were not showing any signs or symptoms of being in an unconscious state;
    5. (e)
       the defendant and WFM roused immediately once Ms Walton yelled and shook them;
    6. (f)
       the defendant told Ms Walton that “everything’s okay” and asked Ms Walton to go home, which she refused to do; and
    7. (g)
       she admonished the defendant for having WFM in the car with her and gassing herself, to which the defendant replied, “[i]t’s diesel. You can’t gas yourself with diesel”.
60. [60]
    The defendant’s sister arrived soon after Ms Walton.  She gave evidence that:

    1. (a)
       she saw the defendant and WFM in the car and helped get them out;
    2. (b)
       she thought the defendant appeared drunk;
    3. (c)
       she found the defendant’s phone on the kitchen bench and put it in the cupboard out of sight of the defendant; and
    4. (d)
       she saw a towel in the internal doorway.
61. [61]
    The defendant’s sister stated in her evidence that the towel in the internal doorway was always there for the purposes of “stopping the draught” and due to housetraining difficulties with the dog.
62. [62]
    The defendant’s parents were informed of the events by the defendant’s sister.  They arrived at the defendant’s residence after the defendant’s sister.
63. [63]
    The defendant’s mother gave evidence that:

    1. (a)
       The defendant was very upset when they arrived;
    2. (b)
       WFM was eating dinner when they arrived;
    3. (c)
       The defendant went across the street to go to the beach; and
    4. (d)
       After the defendant and WFM were taken to the hospital, the defendant’s parents returned to their home.  They later attended the hospital to collect WFM for the evening.
64. [64]
    The defendant’s father did not give evidence in court, but his statement formed part of the admissions. They largely corroborate the oral evidence given by the defendant’s mother.

Paramedics

65. [65]
    Two paramedics, Danny Reynolds and Peter Walsh, attended the defendant’s residence as a result of a 000 call and gave oral evidence.
66. [66]
    Mr Reynolds conducted a medical assessment of WFM at the defendant’s residence and concluded that she was healthy and well.  Mr Walsh gave evidence that WFM received medical oxygen treatment at the scene and the defendant was receptive to her receiving this treatment.
67. [67]
    Mr Walsh conducted a risk assessment of the defendant at the defendant’s residence, and determined that due to immediate risk to herself or another person, she should be assessed by a mental health professional at a hospital.  He also said that the defendant told the paramedics that they did not need to be there and was not receptive to any treatment offered.
68. [68]
    Mr Walsh also gave evidence that WFM:

    1. (a)
       was alert;
    2. (b)
       breathing adequately;
    3. (c)
       had no neurological symptoms that stood out;
    4. (d)
       did not have a headache, altered consciousness, fever, agitation, nausea or ataxia; and
    5. (e)
       showed no signs of abnormal behaviour.
69. [69]
    The defendant and WFM were taken to the Sunshine Coast University Hospital. 

Evidence of examination of WFM

70. [70]
    WFM was seen by a doctor in the emergency department at the Sunshine Coast University Hospital and displayed normal vital signs and no injuries.  The level of carbon monoxide in her blood was normal at the time of testing, however, this does not exclude her potentially having had an elevated carbon monoxide level prior to her arrival at the hospital.

Dr Ehya Uddin

71. [71]
    Dr Ehya Uddin was the psychiatric registrar who conducted an examination of the defendant at the hospital.  He gave evidence that:

    1. (a)
       the defendant “tended to dismiss and minimise the magnitude of the incident”;
    2. (b)
       the defendant constantly requested to be discharged despite not having any plans or ideas to address issues; and
    3. (c)
       there was incongruity between the significance of the events that had taken place and her proposed solution.

The defendant’s interview with Senior Constable Lyndon Hobbs

72. [72]
    A 24-minute audio conversation between the defendant and Senior Constable Lyndon Hobbs was tendered by the Crown.  In this conversation, the defendant:

    1. (a)
       accepted that the situation was “not okay”;
    2. (b)
       denied needing assistance;
    3. (c)
       stated that she “sat in the car with her, doors open, everything was open, it’s just stupid…”;
    4. (d)
       stated that she had consumed a bottle of wine over the course of approximately six hours;
    5. (e)
       accepted sending a message to her sister; and
    6. (f)
       accepted that she had written a note but stated that it was not a suicide note and she was not trying to kill herself.

Atmospheric testing evidence

73. [73]
    Police seized the defendant’s Mercedes Benz ML350 station wagon.
74. [74]
    Officers from the Queensland Police Service and Queensland Fire and Emergency Services conducted a data gathering exercise on 8 January 2020.  This test took place in the garage at the defendant’s residence.  The defendant’s vehicle was placed into the garage, and:

    1. (a)
       the driver’s side door of the station wagon was fully opened;
    2. (b)
       the sunroof was fully opened;
    3. (c)
       all windows and doors to the garage were closed; and
    4. (d)
       a towel was placed at the base of the internal door into the house.
75. [75]
    The vehicle was then turned on and allowed to run for 240 minutes.
76. [76]
    The atmosphere inside the garage was tested in real time by electronic monitoring equipment for oxygen, carbon monoxide, nitrogen dioxide, and sulphur dioxide.
77. [77]
    Physical samples were taken after 0 minutes, 80 minutes and 240 minutes had elapsed.
78. [78]
    The testing was done at multiple locations:

    1. (a)
       The front passenger seat;
    2. (b)
       The rear passenger seat;
    3. (c)
       Immediately outside the front driver’s side door; and
    4. (d)
       Outside the garage (as a control sample),

Pathologists

79. [79]
    Dr Natalie MacCormick, pathologist, produced reports that interpreted the results of these tests.  Given the importance of this evidence to the result, a significant part of her evidence will be reproduced.  Dr MacCormick provided the following table:

80. [80]
    Dr MacCormick reported:^[7]

“Carbon monoxide (CO)

25. Carbon monoxide is formed during incomplete combustion of carbon containing compounds. It is odourless, colourless and tasteless; making it difficult to detect. Carbon monoxide poisoning can easily occur when burning fuel (for example, an open fire place) in a poorly ventilated space and is a significant cause of morbidity and mortality.

26. Carbon monoxide acts as a chemical asphyxiant by preferentially binding with haemoglobin (the molecule that delivers oxygen to the cells in the body). As a result, there is a decreased ability to deliver oxygen to the organs and tissues. The brain is the most sensitive organ to carbon monoxide poisoning.

27. Symptoms of acute exposure are nonspecific and often overlooked resulting in tinderdiagnosis. Mild symptoms include headache, nausea and dizziness. More severe exposures (higher levels or longer duration of exposure) will cause: poor coordination, cardiac arrythmias, chest pain, confusion, shortness of breath, fainting, fast heart rate, blurred vision, seizures, coma and death.

28. Carbon monoxide poisoning can be diagnosed by blood test to measure the carboxyhaemoglobin level (COHb). This is the percentage of haemoglobin bound to carbon monoxide, and normally ranges between 0-5%. Adults with COHb levels above 15% are usually symptomatic. COHb levels over 25% indicate severe exposure. Children are more susceptible to the acute effects of carbon monoxide poisoning due to their increased respiratory and metabolic rates; and may develop symptoms with COHb levels less than 10%.

29. Treatment primarily involves delivery of 100% oxygen or hyperbaric oxygen for severe exposures.

30. Long term effects after carbon monoxide exposure can include delayed neurological and neurocognitive impairment. This affects up to 50% of adults following symptomatic acute poisonings. Outcomes are more favourable for children with between 10-20% having delayed neurological impairment following severe poisoning.

31. Australian occupational exposure standards recommend a time weighted average (TWA) of under 30ppm (parts per million) over 8 hours. The short-term exposure limit is 200ppm over 15 minutes. Evidence suggests that a 4 hours exposure to l00ppm can cause symptoms with COHb levels over 10%.

32. Based on the re-enactment data, there was a potential exposure of up to 130ppm of carbon monoxide for an unknown duration of time. This exposure exceeds occupational standards. This is of particular concern for a 4 year old child due to children's increased susceptibility to carbon monoxide poisoning. It is likely that [WFM] would have been symptomatic, and her COHb level probably exceeded 10%.

Hydrogen sulphide (H₂S)

33. Hydrogen sulphide exposure can quickly and dramatically cause death at high concentrations (>700ppm). It is an industrial hazard in gas and coal production, the petroleum industry, sewers, and manure pits.

34. At lower concentrations (>100ppm) hydrogen sulphide is an intensely irritating gas which causes irritation to the eyes, nose and respiratory tract. It has a pungent odour of rotten eggs. At higher concentrations it causes olfactory, nerve paralysis (loss of sense of smell), which can mislead an exposed individual to believing the gas has dissipated. At even higher levels (>1000ppm) it is renowned for "knocking down" individuals and causing rapid unconsciousness and death.

35. Based upon the re-enactment data, the hydrogen sulphide levels were up to 2.l ppm in the garage and 0.7ppm in the rear passenger seat. These levels are well below occupational standards and unlikely to have caused any significant adverse effects.

Nitrogen dioxide (NO₂)

36. Nitrogen dioxide is formed from combustion emissions. Common sources of nitrogen dioxide include cars, buses, trucks, and powerplants. It is also produced during anaerobic fermentation of hay and com, resulting in hazardous conditions in silos.

37. Nitrogen dioxide has an unpleasant harsh odour. Exposure to nitrogen dioxide can cause: cough, eye/nose/throat irritation, shortness of breath, chest tightness and pain, exacerbation of underlying lung disease, pulmonary oedema, and chemical pneumonitis. Very high levels can cause severe respiratory symptoms and sudden death, often observed in silo accidents, hence the term silo filler's disease.

38. Exposure to nitrogen dioxide concentrations of >20ppm may produce respiratory tract injury. Concentrations over 50ppm, have resulted in bronchiolitis and focal pneumonitis with spontaneous recovery. Over l50ppm, bronchiolitis fibrosa obliterans with death in 3-5 weeks has been observed. Over 300ppm, rapid death from pulmonary oedema is likely.

39. Based upon the re-enactment data, the nitrogen dioxide concentrations potentially reached 6.8ppm in the rear seat of the vehicle. This concentration exceeds the occupational short-term exposure limit of 5ppm, and would have likely produced mucosal ( eye, nose, throat) and respiratory irritation.

Sulphur dioxide (SO₂)

40. Sulphur dioxide is an environmental exhaust. It has a pungent odour (like a burnt matchstick) and can cause mucosal irritation and bronchospasm, especially in susceptible individuals with asthma. Exposure to higher concentrations can cause the severe lung condition referred to as Acute Respiratory Distress Syndrome (ARDS).

41. Based upon the re-enactment data, the sulphur dioxide concentration was up to 3.6ppm in the passenger rear seat. This concentration is above the time weighted average level of 2ppm, but below the short-term exposure level of 5ppm. This concentration likely caused mucosal (eye, nose and throat) and respiratory irritation.

Acrolein

42. Acrolein is an organic compound formed during combustion of petroleum fuels and biodiesel. It is also present in cigarette smoke, used as a herbicide, and formed during overheating of oils/fats in cooking. It has an acrid smell like burned fat.

43. Exposure to low concentrations (0.04-0.4ppm) will cause eye, nose and throat irritation. Acute exposure to concentrations >10ppm are potentially lethal. There have been case reports of children developing severe pulmonary complications and dying following exposure to acrolein vapour from overheated cooking oil.

44. Based upon the re-enactment data, the acrolein levels could have potentially reached 270ppbv (0.27ppm) inside the vehicle. This concentration is above the occupational time weighted average recommendation of 0.lppm, but below the short-term exposure level of 0.3ppm. It is likely to have caused mucosal (eye, nose and throat) and respiratory irritation.”

81. [81]
    Another pathologist, Professor Johan Duflou produced a further report on 24 December 2021.  Notably, Professor Duflou stated that:

“The defendant had a COHb level of 5.2% at 21:23 hours. It appears she did not have any HFNC treatment administered and appeared to be resistant to any form of oxygen administration to herself. In such circumstances, a room-air half-life for CO of around 300 minutes (or 5 hours) can be assumed, which would effectively mean that around 17:00 hours, when Ms Walton arrived, her COHb level would have been not much higher than 10%, maximum, assuming she had not smoked in the time between being removed from the car and the blood test being done.

Taking these values into account, it is my opinion that it is possible but unlikely that [WFM’s] COHb level was 10% or greater at any time while in the vehicle.”

82. [82]
    Dr Natalie McCormick reviewed the report of Professor Duflou and did not disagree with anything expressed therein.
83. [83]
    The following formulation, which distilled the effect of the reports, was adopted and admitted by the parties:

    1. (a)
       Chemical irritation of the eyes and respiratory mucosa (those being the insides of the mouth, nose, throat and lower airways) can result in inflammation (that being redness and swelling), pain/irritation (stinging sensation, cough, wheeze, runny nose and tears). This would be expected to cause discomfort.
    2. (b)
       These symptoms would generally be expected to resolve once the irritant is removed.

The defendant’s interview with Senior Constable Brian Enright

84. [84]
    A 40-minute audio-visual interview between the defendant and Senior Constable Brian Enright was tendered by the Crown.  In the course of the interview, the defendant stated that she:

    1. (a)
       had purchased two bottles of wine earlier in the day on 26 July 2019;
    2. (b)
       had been intoxicated, had consumed one bottle of white wine during the course of the day, and likely had opened another bottle;
    3. (c)
       had placed the first empty bottle of white wine in the rubbish bin once she had finished it;
    4. (d)
       was inside with WFM doing puzzles and colouring when she sent the message to her sister;
    5. (e)
       sent the message to her sister and understood “exactly the ramifications of that message”;
    6. (f)
       “went and turned the car off and had all the doors open – all the doors internally into the house open.”
    7. (g)
       meant no harm to WFM or herself; and
    8. (h)
       was asking for attention and that the note was an expression of her feelings and was not a suicide note.

The defence case

85. [85]
    The defendant gave evidence relating to her recollection of the events on 26 July 2019, notably that:

    1. (a)
       she went grocery shopping with WFM and also purchased alcohol;
    2. (b)
       she and FTS had been trying to contact each other during the day and had a phone call around 2:00pm;
    3. (c)
       after the phone call, she wrote the two handwritten notes.  In doing so, she was following the advice of her psychologist to “write down [her] emotions”;
    4. (d)
       she scrunched up and threw the notes in the bin because she thought they were “ridiculous”;
    5. (e)
       references to death in the handwritten notes were metaphorical and in relation to the death of the family unit;
    6. (f)
       she first entered the garage and turned on the car at 3:28pm;
    7. (g)
       she believed the windows in the garage were open but did not recall opening or closing the windows;
    8. (h)
       the towel in the internal garage doorway was to stop the draught and due to housetraining issues with her dog;
    9. (i)
       she then returned to the car at some point later with FWM, who had an iPad with her at the time;
    10. (j)
        she sent a message to her sister at 4:46pm, at which point she was in the car with FWM;
    11. (k)
        she had consumed one and a half bottles of white wine over the course of the afternoon;
    12. (l)
        she had spoken to engineers at a quarry operated by her first husband.  These engineers worked with heavy machinery that operated on diesel.  Based on her discussions with them and her ex-husband, himself a mining technician, she did not believe diesel engines, in general, produced carbon monoxide;
    13. (m)
        she believed the Mercedes Benz ML50 BlueTEC technology removed any other harmful emissions;
    14. (n)
        she believed that consuming the entire exhaust of the vehicle would have no harmful effects and that it was “100 percent safe”; and
    15. (o)
        her relationship with FTS was a controlling and abusive one that led to her often feeling isolated and trapped.

Evidence of Dr Velimir Kovacevic

86. [86]
    Dr Kovacevic is a consultant psychiatrist.  Without asserting that it was in fact the case, he gave opinion evidence that the defendant’s actions could be cogently and validly construed as an act of parasuicide, that is, acts that appear to be suicidal behaviour but are not calculated to result in the death of a person.  One of the alternative common explanations for parasuicidal behaviour was “signalling a need for help”.
87. [87]
    Dr Kovacevic stated that he reached this conclusion after conducting an assessment against numerous factors, notably that:

    1. (a)
       the chosen method was generally regarded as a low lethality method;
    2. (b)
       the defendant had expressed that she believed it was almost impossible to gas yourself with a diesel car;
    3. (c)
       the defendant communicated to her sister, which was relevant to the likelihood of rescue;
    4. (d)
       no medical intervention was required;
    5. (e)
       the likelihood of death was highly improbable;
    6. (f)
       the psychiatric history demonstrated an emerging pattern of parasuicidal behaviour with a common theme;
    7. (g)
       the dysfunctional nature of the defendant’s relationship with FTS was relevant to assessing the cogency of the defendant’s assertion that the incident was a cry for help; and
    8. (h)
       the notes did not necessarily indicate an intention to die.
88. [88]
    Dr Kovacevic also gave evidence that where the defendant had previously cited her relationship with WFM as a “protective factor” against the implementation of suicidal ideation.  This leaves open questions about whether the risk of genuine suicide was increased if the actions contemplated embraced also the death of WFM.

Consideration and verdict

Count 1

89. [89]
    I agree with the prosecution’s submission that much of the defendant’s sworn evidence was unsatisfactory and should be put to one side.  In particular, the evidence identified at [85](c) and [85](e) is nonsensical.  The assertion at [85](g) also cannot be accepted.
90. [90]
    The prosecution goes on and points to a combination of circumstances from which it is said that the requisite intent can be inferred, and which establishes that the defendant’s actions went beyond a “cry for help”. 
91. [91]
    This conclusion as to murderous intent is said to be compelled when regard is had to telling statements made contemporaneously with the defendant’s actions.  The handwritten notes may not establish much apart from (perhaps drunken) confusion.  It made no sense for the defendant to write about the killing by FTS of “us” and “two beautiful girls”, whilst at the same time leaving part of her estate to WFM.  However, attention is drawn to the text message that the appellant sent to her sister. Mr Corsbie points to the language in which the text was expressed. Terms like “gassing” and “slipping away” are unambiguous and reflect suicide intention.  A notional observer at the defendant’s residence at the relevant time, viewing a scene in which the defendant and her daughter were asleep in a vehicle that was parked within a confined space with its motor running, and then read that text message, would reach the commonsense conclusion to be drawn from those circumstances – namely, that the defendant had constructed a situation that was calculated to end their lives.
92. [92]
    Indeed, at the point this message was sent, it seems likely that, if only because she had been drinking, the defendant was in the process of falling asleep and may well have felt that she was “nearly gone” just as she believed WFM to be.  Irrespective of the state of mind that may have existed prior to this point, it can be said that at least by then, an intention to kill – both herself and WFM – had crystallised.
93. [93]
    There is substance to the argument, and it was put persuasively by Mr Corsbie. It is established that the existence of the requisite intent was certainly a possibility and may even have been a probable state of affairs as at the time the text was sent. 
94. [94]
    The defendant made a series of arguments against that conclusion.  Previous manifestations of suicidal ideation might also be characterised as a “cry for help”.  This might support the defendant’s case, in that it demonstrates a propensity to behave in such a way.  On the other hand, these incidents did not, clearly, succeed in obtaining all the help that the defendant needed, or desired, and the events of 26 July 2019 were by any reckoning an escalation.  This evidence does not, however, support any conclusion as to the extent to which the defendant was prepared to escalate, nor whether it went to the point of compelling her to end her own life.  Given the conclusion that I have reached, there is no need to consider all of them. 
95. [95]
    There is, however, one circumstance that places an insuperable obstacle in the path of towards a conclusion of guilt.  In order to include that the defendant actually intended to cause death, it is necessary to form a view as to her understanding of the processes she had engaged.
96. [96]
    She explained that understanding in her evidence – namely, that the nature of the vehicle meant that the fumes emitted from its exhaust could not be fatal. In fact, she went further, and asserted that to her mind they were not even harmful.
97. [97]
    Indeed, if hers had been the only evidence on the subject, it may nonetheless have been open to draw the conclusion that was apparently compelled by the objective circumstances.  As I have noted, aspects of her evidence were most unsatisfactory and overall it had the feel of a retrospectively manufactured self-serving account that defaulted to a series of glib and repetitive assertions.
98. [98]
    However, the prosecution did not and could not suggest to the defendant that her assertions were in the nature of “recent invention”.  The defendant’s insistence, at the moment of Ms Walton’s intervention, that “[y]ou can’t gas yourself with diesel”^[8] prevented any such suggestion being made.  I allow the possibility that, knowing the difference between the emissions created by a diesel engine as opposed to those that come from a petrol engine, the statement to Ms Walton was an attempt to minimise the seriousness of a situation at a point when it was clear that her attempt had been unsuccessful and there might be consequences for her.  However, it must also be accepted that the assertion was spontaneous, unrehearsed and unvarnished.  There was not, and could not have been, any suggestion that Ms Walton’s evidence was other than honest and reliable.  Apart from giving the very clear impression that she did not want to be here, she did not appear to have any agenda.
99. [99]
    This fraction of evidence was the centrepiece of the argument mounted by Mr Glynn QC and, fairly so, because the doubt created by that statement alone must necessarily linger.  When the matter for determination is something as nebulous as a state of  mind, it is at least some evidence which could reasonably be thought to provide an insight into that state. 
100. [100]
     For this singular reason, it is not possible to discount the reasonable possibility that the defendant believed that she could not, by her actions, have caused the death of herself or of WFM.  In these circumstances there must be at least one reasonable doubt about the existence of an intention to kill.  The evidence leaves open the reasonable possibility that the defendant was not in such a sad and desperate state that she resolved to take her own life, but rather that this was an effort at staging a situation that would draw sudden and intense attention to herself.  Minds may differ about the relevance of her willingness to involve her young daughter in her noxious melodrama, but her moral culpability is not on trial, and her criminal liability is not established.  I find the defendant not guilty of attempted murder.

Count 2

Did the defendant make a “noxious substance”?

101. [101]
     The defendant was responsible for the state of air in the garage as at the time Ms Walton interrupted. There is no challenge to the evidence as to the re-enactment.
102. [102]
     It is not in dispute that at (or by) the 80-minute mark:

     1. (a)
        The level of carbon monoxide was such that could have caused WFM to become symptomatic (of carbon monoxide exposure), that is she may exhibit (at least) headache nausea and dizziness;
     2. (b)
        The level of nitrogen dioxide was such that could have caused WFM mucosal and respiratory irritation;
     3. (c)
        The level of sulphur dioxide was such that could have caused WFM mucosal and respiratory irritation; and
     4. (d)
        The level of acrolein dioxide was such that could have caused WFM mucosal and respiratory irritation.
103. [103]
     I do note that the re-enactment was conducted with a towel pressed against the base of the internal garage door.  The evidence does not permit a conclusion about whether, at the time the defendant was in the car, a towel was in the same or a similar position.  Nor can it be said what difference that might have made to the readings.  In any event, it can be concluded (and it is not disputed by the defendant) that the levels of substances in the air in the garage were “harmful” to the point that the “substance” that was the air in the garage, containing as it did a cocktail of irritants, could fairly be described as “noxious”.

Was the substance made wilfully?

104. [104]
     It must follow from the verdict reached on Count 1 that there is doubt about whether the noxious substance was made with lethal intent.
105. [105]
     However, the defendant’s own evidence about her state of mind was unsatisfactory.  For the most part, her insistence that a diesel engine produced no harmful emissions was revealed to be a belief about the emission of carbon monoxide.  It may well be that she understood that the “AdBlue” system removed further substances that may otherwise have been harmful, but I reject her evidence that she thought the exhaust produced by her car was “100% safe”.^[9]
106. [106]
     As noted, it was the contemporaneous statement to Ms Walton that was decisive of the verdict on Count 1 – not the effect of anything to which the defendant herself swore.
107. [107]
     For all of that, it can be allowed that there may be doubt about the existence of any specific intent – the defendant’s thoughts were clearly disordered and there was at least some level of intoxication.  These make it difficult to reach a conclusion about actual intent.
108. [108]
     The concept of “wilfulness”, however, does embrace the situation depicted in the evidence.  Even if her thoughts were clouded, the defendant was still functioning well enough to send meaningful text messages and, indeed, to say what she said to Ms Walton.
109. [109]
     The defendant was under no obligation to establish anything about her state of mind, or to persuade that she was not aware about any likelihood that a noxious substance might be created by her actions.  However, her “glib defaults” to assertions that her car’s exhaust was “100% safe” strained credulity.  Her inability to elaborate on her belief when asked to consider it against the hypothetical background of WFM sitting next the exhaust pipe did no more than illustrate the difficulty that any reasonable person would have in justifying the scenario as one that involved no potential for harm.  She is an individual of at least average intelligence who has been employed, in an administrative capacity, in the healthcare sector.  Like all of us, she is a member of a motoring community and can be taken to have an elementary understanding of the proposition that – irrespective of their particular constituents – exhaust fumes from any vehicle might, in sufficient quantities and particular circumstances, be harmful to humans.  Her actions were recklessly indifferent to that risk and the noxious substance that she created was made wilfully.
110. [110]
     For the same reasons, it is impossible to allow that any belief she held about the circumstances that she had created was reasonable.  No reasonable person would be unconcerned about a four year old being in a running vehicle in a confined space for an extended period while a vehicle was running.  Whether or not that potential for harm might be realised depends, however, on the effect of the particular noxious substance created and whether that effect can, in context, be described as an “injury”.

The “circumstances”

111. [111]
     I do not find it necessary to make a finding as to whether or not the defendant placed the towel against the door for the purposes of her exercise – a towel was ordinarily in or around that position and its stated purpose was to restrict a draught.  No conclusion can be drawn as to how it was placed when the vehicle was running.  I do find that the doors and windows to the garage were closed – or at least in the positions as depicted in the photographs.  There is no basis on which to consider things were otherwise.  In any event, and accepting that the whole exercise was a “call for help”, it can be concluded that even if her thinking was disordered, the defendant calculated for the circumstances to appear sufficiently dramatic for that cry to be heard.  Played out in a ventilated space, the performance would not have made noise sufficient for her purpose.

“Might cause injury to any person”

112. [112]
     The particulars for the alternative charge identify the relevant bodily injury to WFM as “mucosal and respiratory irritation”.
113. [113]
     The state of the evidence relied upon to establish the prospect of the alleged injury has been outlined at [102] above.
114. [114]
     It is for the Crown to establish, on the evidence, that the mucosal and respiratory irritation constitutes an injury.  The agreed reports do not go into further detail about the extent to which the symptoms occasioned by the “irritation” might persist.  This last sentence is critical.
115. [115]
     The evidence establishes that:^[10]

“39. Based upon the re-enactment data, the nitrogen dioxide concentrations potentially reached 6.8ppm in the rear seat of the vehicle. This concentration exceeds the occupational short-term exposure limit of 5ppm, and would have likely produced mucosal ( eye, nose, throat) and respiratory irritation.

[…]

41. Based upon the re-enactment data, the sulphur dioxide concentration was up to 3.6ppm in the passenger rear seat. This concentration is above the time weighted average level of 2ppm, but below the short-term exposure level of 5ppm. This concentration likely caused mucosal (eye, nose and throat) and respiratory irritation.”

116. [116]
     The admissions made include the propositions that:

“a. chemical irritation of the eyes and respiratory mucosa (those being the insides of the mouth, nose, throat and lower airways) can result in inflammation (that being redness and swelling), pain/irritation (stinging sensation, cough, wheeze, runny nose and tears). This would be expected to cause discomfort.

b. These symptoms would generally be expected to resolve once the irritant is removed.”

117. [117]
     The Crown submits that:

“A definition of injury should be adopted that is something more than a momentary sensation, or a physical reaction without discomfort or impairment, but also does not require an element of bodily harm.”

118. [118]
     In these circumstances, the Crown is compelled to submit that:

“The expert evidence is that the concentration of gases reached by the time Denise Walton arrived were likely to cause mucosal irritation. Such an irritation can cause a physical component, an impairment, and pain or discomfort. On a cumulative basis these amount to an injury.”

119. [119]
     It must be remembered that when the word “injury” was first included in this section, the mischief contemplated was an explosive substance.^[11]  When it was considered by Parliament in 2008, there was no discussion about the wording of this section,^[12] although it is parenthetically noted that at the same time s 364 of the Code was amended to embrace the concept of doing “harm” to a child by means of “prescribed conduct”.  It can be understood why that charge was not enlisted on this indictment – apart from the lack of evidence as to actual “harm”, nothing done by the defendant readily fits within the category of “conduct” that is “prescribed” for the purposes of that section.  Further amendments to s 470A of the Code were made in the context of the approaching Commonwealth Games of 2018,^[13] and do rather reinforce the perception that its use was always contemplated to be for the purposes of maintaining public safety, rather than as a back-up charge to be invoked in a case where proof of infanticidal intent fell short.  That would not have prevented its engagement had the evidence fallen differently, and its inclusion on the indictment was as thoughtful a precaution as could be taken in the circumstances.  It has, however, in these particular circumstances, proven to be not quite fit for purpose.
120. [120]
     It can be accepted that the cumulative effect of the defendant’s actions was likely to cause pain, irritation and discomfort to a four year old girl.  Exactly how it is that a parent could wilfully create a situation in which these sensations might be inflicted on their child is beyond comprehension of most.  However, the evidence establishes that these sensations would have dissipated upon removal of the stimulus creating them.  It is not suggested that any residual symptom would be detectable.  In that situation, it has to be allowed that it cannot be established beyond reasonable doubt that the circumstances were likely to cause an “injury” – as I perceive an injury to be – within the meaning of the Act.  If, unguided by authority, it is thought that I am wrong about that interpretation, the provisions of s 669A(2)(a) of the Code might be engaged.
121. [121]
     Notwithstanding the able and efficient way in which the Crown case has been prepared and prosecuted, and notwithstanding the difficulties that Count 2 in particular has caused me, a proper application of the law and principle compels me to announce that the verdict on Count 2 is not guilty.