“You do not have to say or do anything”: Why you should not answer police questions

It is a scenario any one of us could face when we least expect it and a client’s most common question. Should I be answering police questions? Whether innocent or otherwise, police may be at your house, work, streets, or already have you arrested at a police station alleging your involvement in a crime. The natural social instinct is to feel like you should answer any police questions put to you. After all, someone in uniform with apparent authority expects it.

The golden rule is to exercise your right to silence and never, ever, answer incriminating questions asked of you by police or participate in a record of interview. The exceptions are very rare and should only arise after you have sought legal advice from an experienced criminal defence lawyer. For example, there are very limited obligations, depending on what State or Territory you live in, to provide your name and address, or basic information if involved in, or a witness to, a motor vehicle accident.

No adverse inference can be drawn at a hearing or trial from exercising your right to silence. [1] It is an overarching principle in criminal law that the onus rests on the prosecution to prove an accused is guilty beyond reasonable doubt and it is not for the accused to prove their innocence.

I have heard the same rhetoric time and time again: “If I don’t say anything then it looks like I’m guilty” or “I need to tell my side of the story”. In our experience these ideas are completely misguided. In the great majority of cases, when police are asking incriminating questions or offering a recorded interview they have already decided you will be charged and want a little more to bolster their case; or they need that last piece of the puzzle (your admissions) to secure enough evidence to charge.

Even if you think you are confident police could not have sufficient evidence or you have done nothing wrong, do not do an interview. Agreeing to any seemingly innocuous question put by police has the potential of corroborating a crucial part of their case. It is very rare to see police declining to charge because of things said during a recorded interview.

It is a well-established legal principle that previous silence about a defence raised at trial by an accused is not a proper basis for inferring guilt or that the version is a new invention and some way unacceptable.[2]

When questioned by Police you must be provided with a caution.[3] Such as, “You do not have to say or do anything but anything you do say or do may be used in evidence.” These words are extremely important and all too often go in one ear and out the other in the pressure of the moment. Similarly, when granted the right to speak with a legal practitioner always do so. Do not wait until the interview is complete.

Ultimately if charged the opportunity to tell your side of the story will come at the hearing or trial. There is no greater value in telling your side to police than in court. To the contrary, evidence given in trial commonly carries greater weight because it is made under oath or affirmation.

If you come to be questioned by police resist the urge to talk and contact an experienced criminal defence lawyer immediately.

[1] Evidence Act 2011 (ACT) s 89 provides “In a criminal proceeding, an inference unfavourable to a party must not be drawn from evidence that the party or someone else failed to answer 1 or more questions; or to respond to a representation put or made to the party or other person by an investigating official who at the time was exercising functions in connection with the investigation of the commission, or possible commission, of an offence.”

[2] Petty and Maiden v The Queen (1991) 173 CLR 95; R v Stavrinos [2003] NSWCCA 339.

[3] Evidence Act 2011 (ACT) s 139(c)

 

Tom Taylor

 

ADFA cadet accused of raping fellow Defence member pleads not guilty

ADFA cadet accused of raping fellow Defence member pleads not guilty

By Jana Black

A 19-year-old Australian Defence Force Academy (ADFA) cadet charged with raping a female cadet in Canberra has pleaded not guilty.

It is alleged Jack Toby Mitchell raped the 18-year-old woman while she was sleeping after a night out in May.

Police arrested the man in the early hours of June 3 and faced court the same day.

Today Mitchell entered the plea of not guilty, through his lawyer Adrian McKenna of Ben Aulich & Associates, to one charge of sexual intercourse without consent in the ACT Magistrates Court.

The court previously heard Mitchell and the woman had been drinking at a Canberra nightclub with friends and decided to catch a taxi back to ADFA with a third male cadet.

On arrival, the pair left the third cadet and returned to Mitchell’s room where it was alleged he raped the woman while she was sleeping.

The court also heard Mitchell and the woman had known each other for about four months and both lived on campus.

Mitchell was previously granted bail under strict conditions and bail was continued today.

The conditions included he not go within 100 metres of the woman and that he not attempt to contact her, including through other cadets.

Alternative accommodation was to be arranged in order for Mitchell to meet the bail conditions.

The Department of Defence released a statement earlier this month which said it was assisting police and providing support to the individuals concerned.

The matter has been adjourned until September.

The alleged assault is the latest in a series of incidents at the Academy, including the ‘Skype sex scandal’.

http://www.abc.net.au/news/2016-06-23/adfa-cadet-charged-with-raping-pleads-not-guilty/7537072

 

Should offensive online comments really be a crime?

Nearly all of us have an online presence whether that be Facebook, Twitter, Instagram, Snapchat, Pinterest, and in some cases, Grindr and Tinder.  We frequently communicate with each other, for various purposes, using those forums.

These popular social media platforms allow us to share anything and everything we are thinking or doing. Whilst some may be annoyed by seeing ‘that friend’s’ hundredth post-workout pic or strictly-vegan brunch snap, the instantaneous nature of social media presents us with bigger problems.

For some, a social media platform is the ‘toilet wall’ of their thoughts and should be kept to themselves. For many their instantaneous musings on social media do not get the usual or appropriate ‘filter’ before being posted – least of all proper consideration of the consequences.

The lack of real-life interaction gives the misconception that our conduct online does not carry consequences worth worrying about or that our comments don’t offend or outrage others. However, using a carriage service to menace, harass or cause offence is an offence punishable by 3 years imprisonment.[1]  It is also an offence that is gaining more prominence when dealing with online trolls and provocateurs.

No matter how cool and collected you may be in person, a confrontation online is difficult to walk away from. The temptation of the keyboard and the physical distance from our adversary sometimes leads us to act rashly or say something stupid, outrageous or highly offensive.

Whilst it may be reasonable to mitigate offensive behaviour, a difficulty lies in determining what behaviour is so offensive so as to warrant criminal punishment. For behaviour to be offensive the law says it must be “calculated to wound the feelings, arouse anger or resentment or disgust or outrage in the mind of a reasonable person”[2] But remember, the reasonable person must not be thin-skinned.[3]

Yes, these legal principles are from the 1950’s and 1960’s, but has our tolerance for the offensive changed or just the way we communicate our offensiveness?

It may surprise some that the test for this offence is an objective one.  It doesn’t matter whether someone actually offended or not and the fact that no one was offended is not a defence to the charge.

You may have read about a recent Sydney case in which a 25 year-old man pleaded guilty to using a carriage service to cause offence after making certain comments online.[4] This case is described in a news article as a “landmark case against gendered abuse online”. Whilst it is desirable to counter gendered abuse, we in the criminal defence sector are concerned this case will serve as a precedent for the criminalisation of a much broader array of conduct.

There have been other recent examples of similar conduct, including the Jedi Council matter and racist online commentary about the resignation of Senator Nova Peris.

Whether these comments are actually offensive is not the point.  The fact is this sort of commentary is rife across the internet.  Who gets to pick and choose which keyboard warriors get prosecuted and which do not?  Obviously that will come down to police officers.  Will the fact that you know a police officer or you are a persistent and vocal complainer make a difference?   Surely our already stretched police resources are better focused in more pressing areas of law enforcement.

Kate Gunther

[1] Criminal Code (Cth) s 474.17

[2] Worcester v Smith [1951] VLR 316 at 318.

[3] Re Marland [1963] 1 DCR 224.

[4] http://www.news.com.au/lifestyle/real-life/news-life/zane-alchin-faces-three-years-in-jail-for-posting-derogatory-comments-about-a-woman-on-facebook/news-story/557198b0732cc2b5a19a86b871e87668

 

Why Canberra’s Draconian Drug Driving Laws Must Change

Adrian McKenna, Senior Associate at Ben Aulich & Associates, calls for reform to laws unfairly punishing drivers with cannabis in their system.

The Canberra community is increasingly learning the fallacy of the ACT Government’s “zero tolerance” approach, charging unimpaired drivers with miniscule traces of cannabis in their body. [1]  It is less well known that we have by far the most draconian drug driving penalties in the country. A first offender with the smallest amount of cannabis in their system will ordinarily expect a criminal conviction and loss of licence of between 6 months and 3 years. Even for younger drivers injured in accidents, through no fault of their own, convictions and licence disqualification are common.[2] 

It is hard to deny the widespread use of cannabis in the ACT and elsewhere in Australia is very much a reality here to stay for the foreseeable future. Whether we respond with a “war on drugs” retribution mindsight or targeted tolerance and management is a wider reflection on our society.

For almost two decades the ACT has lead the way in progressive laws relating to what is a near decriminalisation of minor cannabis possession and cultivation. Possession of less than 50 grams of cannabis or cultivation of up to 2 cannabis plants carries a maximum penalty of $150 and can be dealt with by way of an infringement notice, akin to a speeding ticket, without going to court or having any criminal conviction recorded.

The laws appear to allow for tolerance, if not acceptance, of the reality and relative harmlessness of low level personal cannabis use in the community. There is also a growing push for the legalisation of marijuana for medicinal purposes.

Notwithstanding these progressive trends, the ACT Government repeatedly refuses to consider any amendments to drug driving laws that disregard levels of intoxication or impairment. It is a stubborn and hypocritical stance. We tolerate low level cannabis users on the one hand and on the other denounce them for driving days or weeks later, even if in no way still impaired by cannabis.

A quick comparison of automatic drug driving disqualifications in State and Territory jurisdictions shows the unusually harsh approach in the ACT:

Victoria: 3 months

SA: 3 months

WA: 3 demerit points

Tas: 4 demerit points

NT: 24 hour suspension

Qld: Between 1 and 9 months

NSW Between 3 and 6 months

ACT: Between 6 months and 3 years

 

Drug driving licence disqualification in the ACT matches that for high range (level 4) drink driving. Unlike drink driving charges though, drug driving offenders cannot rely on work licences or the installation of alcohol interlock devices to prevent licence disqualification. Young tradesman or apprentices, dependent on their licence for work, can expect to lose their job if caught driving even days after a casual use of cannabis. Police have been steadily increasing roadside drug tests in Canberra and this will inevitably capture more unimpaired drivers. [3]

Disappointingly, the stock standard response of the Government to calls for reform is that they take a “zero tolerance” approach to drug driving. No explanation is given for how it is just or morally acceptable to capture with a criminal offence so many perfectly capable and responsible drivers who are in no way impaired. Their advice is to simply not drive if you ever have drugs. The response may as well be “don’t do drugs”… “drugs are bad”. Is there any real difference between walking or sitting in public with a miniscule level of drugs without impairment than driving in the same state?

Some justification is attempted by claims (without any concrete evidence), that cannabis may only typically be detected in saliva for up to 12 hours and in blood for up to 48 hours. But these claims fly in the face of Court experience. Magistrate Heilpern in Lismore, for example, noted the hundreds of offenders who had spoken of trying to wait days or weeks for cannabis to clear their system before driving.[4] I have personally represented many clients conveying this same experience.

Modern drug analysis techniques are perfectly capable of detecting concentrations of drugs in blood. Why this is not utilised, as it is in many European countries, for setting some limit to drug driving offences remains a mystery.

The ACT Government, whoever it will be by the end of this year’s election, must reconsider reforms that allow for testing of concentrations of cannabis, in a sensible way that reflects likely levels of impairment to driving. We also need a significant reduction to the automatic licence disqualification periods for the offence. It is outrageous that we are forced to tolerate these draconian laws that fly in the face of our otherwise progressive approach to low level cannabis possession and cultivation.

Adrian McKenna, Senior Associate

 

[1] Canberra Times Editorial, 29 June 2015, “ACT’s zero-tolerance drug driving laws may need review” http://www.canberratimes.com.au/comment/ct-editorial/acts-zerotolerance-drug-driving-laws-may-need-review-20150629-gi09q4.html

[2]See, for example, Canberra Times, 1 July 2015  http://www.canberratimes.com.au/act-news/zero-tolerance-drug-drive-laws-leads-to-conviction-of-unimpaired-motorcyclist-20150630-gi1eyc.html

[3]Canberra Times, 27 November 2015 http://www.canberratimes.com.au/act-news/drugdriving-campaign-launched-in-act-after-calls-for-greater-awareness-20151126-gl93e4.html

[4]ABC News, 3 March 2016, http://www.abc.net.au/news/2016-03-03/claim-cannabis-stays-in-system-for-up-to-12-hours-questioned/7216720

Shielding yourself from wrongful gaol time: What beyond reasonable doubt really means

Peter Woodhouse, partner at Ben Aulich & Associates, looks at a fundamental jury question in criminal trials.

I have been involved in many jury trials and I cannot think of one where a jury has not asked a question to the effect: “what does beyond reasonable doubt mean?”

Our criminal justice system has two entwined fundamental principles at its foundation:

1. The presumption of innocence;
2. The requirement for the prosecution to prove criminal charges beyond reasonable doubt.

The requirement to prove criminal charges beyond reasonable doubt is often referred to as the criminal standard of proof.

Notably, that differs from the standard of proof required for civil matters – the balance of probabilities.  The balance of probabilities is easier for laypersons to understand.  It is often defined as “more likely than not” or quantified as 50% + 1.

The concept of “beyond reasonable doubt” is more difficult to define.  Many judges in many Courts have tried to define the phrase.  Most have failed and been criticised by appellate Courts along the way.

If you do find yourself on a jury and you do find yourself pondering the meaning of “beyond reasonable doubt” chances are the presiding Judge will answer with something like: these are words in the ordinary English usage and mean exactly what they say.  I expect that would not be very helpful to you.  Sometimes, the best way to understand what “beyond reasonable doubt” means is to know what it’s not:

1. Grave suspicion is not proof beyond reasonable doubt;
2. Thinking the accused probably did it is not proof beyond reasonable doubt.

Some jurors seem to fail to appreciate that it is quite a high threshold.  If there is any doubt that is not fanciful the accused shall be acquitted.

It is important to remember that in our criminal justice system an accused person is innocent until proven guilty and they do not have to prove their innocence.  Often referred to as the golden thread running through the web that is criminal law, the requirement of the prosecution to prove criminal allegations beyond reasonable doubt is a high threshold and one that goes to the very heart of a fair and just legal system.

Peter Woodhouse, Partner

Self-defence: When do you cross the line?

How far can you go to defend yourself? Jane Carey looks further into the issue of self-defence.

At some point in your life you will probably face a time when either you or someone you know are at risk of harm and you need to react to stop the harm. It may be when you are walking home from a party and come across an aggressive drunk. You may act in self-defence at home to stop your partner from harming you or your children. You may be outside a nightclub trying to stop someone from assaulting your mate. Someone may threaten to harm you, your dog, your car, your house. The list is endless.

So what can you do in self-defence if you or someone else is attacked? The simple, and frustrating answer is that it depends on the circumstances. The problem for lawyers, judges and importantly, the community, is that the rules on what is and is not self-defence can easily become blurred.

This test is complicated and the truth is, experts can struggle with it. So it is no surprise that recent media attention on the test for self-defence has sparked a widespread debate in the community.

The legal test for self-defence in NSW and ACT comes from case law. An accused person does not have to prove that they acted in self-defence, the onus is on the prosecution to disprove that it was not self-defence. In summary, the test is:

1. Did the accused believe on reasonable grounds that it was necessary to do what they did?; and
2. Were there reasonable grounds for that belief?

This test is further complicated where an accused is intoxicated.

The ACT also has a different test for self-defence set out in section 42 of the Criminal Code 2002 (ACT) for certain offences. The Code test adds an element of proportionality, that is, was the accused’s conduct a “reasonable response”. The Code has tried to simplify the test but it does not apply to many older offences such as common assault. The confusion has hardly been resolved.

The legal test for self-defence has been brought into the spotlight by recent cases in New South Wales. Benjamin Batterham has been charged with the murder of a man who allegedly broke into Mr Batterham’s home. Nou Loeung, labelled as a “white knight”, has also been charged for helping his neighbour who was fearful of her ex-boyfriend. Many people support the actions taken by the two men charged with murder and believe people should be able to go as far as kill someone if necessary to protect themselves. Others are pushing for the law to be changed so the test for self-defence is stricter and self-defence cannot be relied on for murder.

It is hoped the current cases in NSW prompts both the NSW legislature to clearly articulate the test for self-defence within statute, and the ACT legislature to apply the Code test to all offences. Without such clear guidance, how can the members of the community be expected to know whether their conduct in a dangerous situation is lawful or not?

In the absence of any clear guidance from the law or the courts on what you can do in self-defence, that leaves using your common sense when you or someone else is in danger.

 

Jane Carey, Lawyer

Why police should foot the legal bill for criminal defendants in NSW and the ACT

When should police pay? Tom Taylor of Ben Aulich & Associates takes a closer look at costs in criminal matters:

If you or someone you know is charged with a crime in the ACT and acquitted of that charge you are generally entitled to have a large portion of your legal fees reimbursed by police. The High Court has set in stone a “reasonable expectation” that persons wrongfully forced to mount a legal defence to a charge be compensated for those expenses.[1] Curiously, costs are only awarded to successful defendants for minor (summary) charges dealt with in the ACT Magistrates Court and not for serious (indictable) charges in the ACT Supreme Court. Further still, drive a few kilometres across the border to Queanbeyan or anywhere else in NSW and there is no distinction between minor and serious charges, but the chances of ever being reimbursed for expensive legal representation, even for minor matters in the Local Court, are slim.

 

The prospect of facing a criminal conviction, gaol and a raft of other penalties can be one of the most serious scenarios faced by persons in their life. Defendants may be forced to commit all or significant parts of their life savings towards seeking acquittal of charges that, in some cases, should never have been brought. One argument against costs being paid to successful defendants lies in the risk of deterring police from bringing charges where otherwise appropriate. But costs for a successful defendant are designed to compensate them, not to punish police for an unsuccessful prosecution or deter them from doing their job.

 

Why should there be a difference between the seriousness of the charges or the state in which the crime is allegedly committed anyway? The law offers little in justifying the distinction.

 

Defending serious criminal charges at a jury trial is an expensive endeavour. The only compensation for a wrongly charged defendant, after court proceedings that can take as long as 2 years and tens of thousands of dollars, is the Not Guilty verdict. It can sometimes be hard to sympathise with a defendant in this scenario until you stop to think whether that person could be you, a friend or member of your family. And what if you had been wrongly accused in the first place?

 

Facing a criminal charge in itself can do permanent damage to your reputation. Unfortunately, the presumption of innocence does not often bode well in the court of public opinion. The monetary cost, reputational damage and time and stress of charges before the ACT Supreme Court are much more significant than for a minor charge in the ACT Magistrates Court, yet there remains no power to award costs in the ACT Supreme Court,[2] even when the prosecution case is riddled with holes and doomed to failure from the start.

 

The inconsistencies in the law of costs in criminal matters cannot withstand any reasonable scrutiny. Perhaps it is time to rethink when and how defendant’s acquitted of charges should be compensated for legal expenses and apply the “reasonable expectation” standard to all jurisdictions and charges.

 

Tom Taylor

 

 

[1] Latoudis v Casey [1990] 170 CLR 534

[2] R v Richardson [2016] ACTSC 22

Is prison the only way? Rehabilitating Canberra’s offenders.

Ben Aulich & Associates’ Kate Gunther considers a new approach to punishment in the ACT:

Given recent reports of overflow in the Alexander Maconochie Centre, Canberra’s only prison, it is timely to question whether our approach to punishment is serving the community and taxpayers. With the introduction of new intensive corrections orders, are we seeing the beginning of a change in approach to rehabilitation?

 

The rate of recidivism is alarmingly high in people released from imprisonment. This is due to a variety of factors such as the difficult conditions in gaol and the focus on punishment rather than rehabilitation.

 

The prison system provides a punitive environment which may turn an anti-social individual with minor criminal indiscretions into a chronic criminal. The system is also hurting tax payers, according to the Report on Government Services 2010 it costs approximately $276 per day to accommodate a single prisoner in gaol.

 

Though any alternate system will necessarily require public expenditure, it is preferable to have an option which will not churn out offenders whom repeatedly drain the nation’s resources and threaten public safety.

 

Intensive correction orders are a promising alternate sentencing option which has recently been introduced in the ACT. After all, you never know whether friends, family or a colleague could be facing a gaol sentence.

 

Intensive correction orders are designed to promote rehabilitation whilst exacting an appropriate amount of punishment on the offender. They allow the offender to remain within the community and maintain their employment and social connections. This is desirable as loss of employment and social exclusion are major contributors to reoffending. Remaining active in the community enables offenders to be self-sufficient rather than debilitated.

 

Intensive correction orders are not to be mistaken for getting off scot free. The Court has the discretion to order strict conditions on the offender such as curfews, regular reporting to corrective services, community service, non-association orders, place restrictions, reparation orders, compulsory counselling, or compulsory breath or fluid tests. Intensive correction orders are flexible enough to impose punishments which are proportionate to the crime but also suitable to the offender’s subjective circumstances. The resulting reduction in recidivism is expected to ultimately mitigate public expenditure and create a safer society.

 

In the interest of rehabilitation, intensive correction orders do not separate the offender from the community. Consequently only certain offenders are eligible for an intensive correction order. Those whom the Court would otherwise order to fulltime imprisonment of four years or less may be considered for an intensive correction order. The Court exercises this discretion depending on the level of harm to the victim and the community caused by the offence; and whether the offender poses a risk to one or more people or the community; and the offender’s culpability for the offence having regard to all the circumstances.

 

An offender will likely be found to be unsuitable for an intensive correction order if they are highly dependent on drugs or alcohol, have a major psychological or psychiatric disorder, serious criminal record, a history of noncompliance with court orders, existing employment or personal circumstances which would make compliance with the order impractical, or a member of the offender’s household does not consent to living with them.

 

Breaches of an intensive corrections order may result in fulltime imprisonment, however, in the interest of avoiding recidivism, fulltime imprisonment will always be considered a last resort. Those of us in the community concerned about criminal justice in Canberra will be watching carefully over the coming years to see whether the promise of an improved sentencing scheme is fulfilled through intensive correction orders.

 

Kate Gunther

Checking in: Mobile phone location data in criminal law matters

JANE CAREY, lawyer at BA&A has some interesting information to share in relation to mobile phone data:

 

Sharing your instant filtered photo of your kale smoothie with perfectly poached eggs on quinoa for Sunday brunch on social media, could be sharing a lot more than you think. You might not have even tagged the photo to say where you’re enjoying your brunch, but your phone has tracked where you have been and this could be used as important (or perhaps damning) evidence in a criminal law matter.

 

More and more often in criminal law matters we are seeing law enforcement agencies downloading a person’s complete phone data and admitted as evidence. For example, this data includes:

 

• call history of who you called, when, for how long, and where from based on cell tower locations
• SMS and MMS message history (including content)
• photos, videos and other multimedia

 

What is surprising for a lot of people is the frequent location history stored on your phone without you even realising. Apple iPhones automatically store your frequent locations when you set up your phone. The frequent locations data details where you’ve been, how many times you’ve visited the location, exactly what time on what date you were at that location and for how long. (You can access this data on an iPhone through settings » privacy » location services » system services » frequent locations, and disable the function.)

The ability to access such great detail about where you’ve been and when, could be used to support an alibi if you are charged with a criminal offence. On the other hand, it could be used as crucial evidence to link you to a criminal offence.

 

The Australian Government’s relatively new data retention laws will mandate for telecommunications companies to retain metadata for two years. Currently law enforcement agencies are limited to accessing what data the telecommunications companies have retained, in some cases only the past few months of data. Although telecommunications companies will not be required to retain the content of your messages or your web-browsing history for 2 years as part of the metadata, you should be aware that telecommunications companies can currently access the content of your messages and it can be used as evidence in criminal law matters.

So next time you’re using your phone to document your Sunday brunch, think about how much of your life is already inadvertently stored on your phone. You do not need to be scared, rather be aware of your privacy settings and the potential for your phone data to be used as evidence in a criminal law matter.

        Jane Carey, Lawyer

Christopher David Navin acquitted of murder of Nicholas Sofer-Schreiber

Christopher David Navin has been acquitted of murdering Nicholas Sofer-Schreiber.

But a jury found him guilty of manslaughter for the Boxing Day 2013 killing of the man known in Canberra punk rock circles as the Ginger Ninja.

The verdict means Navin will now be sentenced for the criminal charge in the new year.

Navin did not react when the ACT Supreme Court jury returned the verdict after deliberating for two days.

The victim’s family and supporters hugged outside court after the verdict was read out, but declined to comment on the result.

Jurors were given three options in deciding Navin’s fate, guilty of murder, guilty of manslaughter due to diminished responsibility, or not guilty by way of mental impairment.

Navin killed his former housemate at Mr Sofer-Schreiber’s Lyneham home on Boxing Day 2013.

 

He inflicted 73 stab wounds during the attack that last “tens-of-minutes”, finally claiming Mr Sofer-Schreiber’s life by severing major arteries in his neck.

The defence argued Navin was not guilty by way of mental impairment as he had been suffering from a severe psychosis at the time.

Navin claimed he had slayed the avid punk rock fan in a preemptive strike as he believed Mr Sofer-Schreiber had been involved in his grandfather’s death and had hired a hitman to kill more members of his family.

The court heard the pair had flatted together in 2012 and 2013, but Navin moved out mid-year and Mr Sofer-Schreiber sued him for a $60 repair bill.

The Crown alleged this acrimony simmered for the following months and Navin believed Mr Sofer-Schreiber had worked to ostracise him from their mutual friends.

Later in the year, Navin unsuccessfully tried to reestablish contact with the deceased, including once calling him several times in one day.

Navin told psychiatrists, after his arrest, that he had reduced and then stopped his medication about two months beforehand.

At the time he had believed he had been watched by “observers”, had heard voices, and thought his mind could be read, he claimed.

Navin told psychiatrists that he had attempted to rekindle the friendship with Mr Sofer-Schreiber after receiving orders from the observers.

The men crossed paths at Christmas Eve drinks and were heard to make plans to lunch together the next day.

 

Navin texted Mr Sofer-Schreiber on Christmas Day but did not receive a response.

Navin saw Mr Sofer-Schreiber in a checkout line at a Canberra shopping centre on Boxing Day but the pair did not speak.

The prosecution alleged he then murdered Mr Sofer-Shreiber that night in revenge for social exclusion and rejection of his friendship.

But the accused claimed he had not decided to kill until he received a number of messages, including seeing a piece of wire that looked like a noose, later that evening.

Navin said he attacked Mr Sofer-Schreiber with a paring knife until the blade snapped, then completed the killing with a blade from the kitchen.

He then took a camp chair and tent, and drove north to a family property near Grafton where he burnt evidence, including the two knives, which he later disposed of in a dam.

Navin returned to Canberra after being questioned by police and attended Mr Sofer-Schreiber’s funeral.

Friends reported he exhibited odd behaviour, including breaking off mid-sentence to stare into space.

He was arrested in February 2014 and has been in custody since.

 

Outside court, defence lawyer Peter Woodhouse said Navin and his family had been relieved by the outcome.

“[Defence barrister Stuart] Littlemore, QC, and I both consider this to be a very good result for our client,” Mr Woodhouse said.

“It has been patently obvious from the outset he was mentally unwell and, whilst the circumstances of the matter were tragic, Mr Navin’s illness means he should not be held to account for murder.

“It is disappointing the DPP did not accept our earlier offer to plead guilty to manslaughter and save the community and my client significant, irrecoverable expense.”
Credit: Michael Inman, Canberra Times