R v Hutchison & Wilkinson [2018] NSWSC 1759
Jurisdiction:
Common Law – Criminal
Legal Citation:
Legislations Cited:
− Criminal Procedure Act 1986, ss 133 and 306ZI
− Crimes Act 1900, ss 23A and 418-423
− Evidence Act 1995, ss 54, 60, 87, 136, 165 and 191
− Family Law Act 1975 (Cth), s 121
Elements of the offence:
Ms Hutchison is guilty of murder if the Crown establishes the elements of murder and disproves self-defence and the accused fails to establish the partial defence of substantial impairment. She might be guilty of manslaughter on four different bases, namely, manslaughter by unlawful and dangerous act, manslaughter by gross or criminal negligence, killing in excessive self-defence and on the basis that murder is otherwise established but she establishes the defence of substantial impairment. She is not guilty altogether if the Crown fails to establish the specific intention for murder and that the act or acts were not unlawful and dangerous, or the Crown fails to disprove that Ms Hutchison acted in self-defence.
One of the elements common to both forms of homicide is that an act or omission of the accused caused Mr Walker’s death. Causation “is not a philosophical or a scientific question, but a question to be determined by applying common sense to the facts as find them, appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter. The question is whether the accused’s omission caused or substantially contributed to Mr Walker’s death.
killing by ex-wife following bitter family law dispute where allegations of child abuse made to accused – where accused survivor of childhood sexual assault – where accused not believed as a child – attempt to extract confession by violent means – where accused suffered various mental conditions – where conditions arose out of abuse – self-defence – defence of others – substantial impairment – loss of self-control – community standards – community understanding of impact of child sexual abuse – motive – where obscene text messages showed considerable animosity towards deceased – love/hate – unfiltered stream of consciousness – whether hatred and disappointment true motivation for killing – whether defence of children and substantial impairment used as a convenient excuse to kill a man she hated
Factors leading to criminal behaviour
Just three days before the victim died, he had allegedly choked their son until he blacked out. He then allegedly forced the boy to the ground and dragged him. The boy had told Ms Hutchison of this abuse. Ms Hutchinson feared for the wellbeing of the children with Brett, whom the accused believed had killed his first wife. Ms Hutchison allegedly later told a psychiatrist, “He wasn’t supposed to die. I wanted him to go to jail.” The court heard an inquest into the death of Brett’s first wife had indicated that a case could be made against him, but no charges had been laid. Ms Hutchison had been sexually and physically abused as a child and had lived on the streets and also suffered from a borderline personality order, post traumatic stress disorder from her childhood and depression. Ms Hutchison acted to save two children from what she believed was long standing abuse. These factors and incidents have led to the accused to physically and verbally assault the victim and force him to confess his wrongdoings against the child. Her childhood trauma has also played a role in her unlawful act against the victim.
Role of the Courts
The Supreme Court is the highest court in NSW. It has unlimited civil jurisdiction and hears the most serious criminal matters. Most Supreme Courts will conduct jury trials for indictable offences but this is generally only for very serious offences, such as murder. Supreme Courts will also hear appeals from lower courts. These appeals may be questions of fact (where the appellant alleges that the Magistrate or Judge made an error relating to the facts of the case) or questions of law (where the appellant contends that the Magistrate or Judge has incorrectly applied the law). The prosecution tending to prove the other of those contentions may offer evidence, and the Court may give directions as to the stage of the proceedings at which that evidence may be offered. The court is to also assess the demeanour or credibility of the witnesses.
Plea
Ms Hutchison and Mr Wilkinson have pleaded not guilty to murder of the man, with Ms Hutchison pleading by way of impairment of a mental health disorder in the judge-only trial before Justice Peter Hamill.
Role of Prosecutor and Defence
The prosecutor has three main tasks: to investigate crimes, to decide whether or not to instigate legal proceedings and to appear in court. The prosecutor investigates crimes together with the police. He or she shall have contact with the person suspected of the crime, the victim and witnesses, and have close contact with the police. Once the preliminary investigations have been completed, the prosecutor judges whether there is sufficient evidence to bring the case to court. If an action is initiated there will be a trial in a court of law. The task of the prosecutor is to prove that the suspect has committed the crime. He or she questions the suspect, the witnesses and experts in order to establish that the suspect is guilty. A criminal defence lawyer is a lawyer (mostly barristers) specializing in the defence of individuals and companies charged with criminal activity. Some criminal defence lawyers are privately retained, while others are employed by the various jurisdictions with criminal courts for appointment to represent the person.
Factors affecting sentencing
She was described in documents tendered on the sentencing hearing as having a disrupted life featuring “severe depression, interrupted education, drugs, suicide attempts.” And so on. Under Section 23A of the Crimes Act, Substantial impairment by abnormality of mind backs up a person who would otherwise be guilty of murder is not to be convicted of murder if at the time of the acts or omissions causing the death concerned, the person’s capacity to understand events, or to judge whether the person’s actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition.
Penalty
Ms Hutchison and Mr Wilkinson are charged with Mr Walker’s murder. The judge conducted their joint trial alone, between 10 August and 24 October 2018. There were some bizarre elements of the evidence adduced in the trial. The prosecution alleges that the two accused carried out a joint criminal enterprise to inflict, at least, grievous bodily harm on Mr Walker. Towards the end of the trial (but before commencement of addresses), the Crown Prosecutor put an alternative case based on reckless indifference to human life. The prosecution relies on the number and nature of the injuries, along with things done and said both before and after the crime. Accordingly, Ms Hutchison, on the indictment presented on Monday 13 August 2018, is found not guilty of murder but guilty of manslaughter. Mr Wilkinson, on the indictment presented on the same date, is found not guilty of murder but guilty of manslaughter.