Court room two was almost empty when they escorted Mitch in from the cells. Two people, one of whom was Alison, were seated in the public gallery area.
With his hands cuffed in front and dressed in his dark grey business suit Alison provided for him, Mitch smiled when his eyes met Alison’s. He was happy to see her again, even if it was from the other side of the court room.
As he was escorted to the prisoner dock off to the side, he scanned the near-empty court room. A slight sense of disappointment washed over him when he noticed Fitzy wasn’t with Alison.
While the escorting Cop removed Mitch’s handcuffs, Mitch caught Alison’s gaze. He lifted his chin to her and mouthed, ‘Where’s Fitzy?’
Alison’s mouth straightened. She slowly and slightly shook her head. Her hand shot up to her mouth. Mitch inferred that response meant Fitzy wasn’t coming.
He nodded once. His eyes fell heavily to the floor in front of him. His shoulders slumped. He assumed, maybe even expected, Fitzy would accompany Alison to court today to support him at his hearing.
Frank requested from the Magistrate that Mitch be able to sit beside him at the bar table, rather than in the dock. He argued that Mitch was not in custody, rather he was remanded to appear in court on this date. The Magistrate consented to the request.
‘Before we start, I understand there is an amendment to the charges….Is that correct Sergeant?’ The Magistrate said.
The Prosecutor stood from his chair. ‘That is correct, Your Honour. The Prosecution is withdrawing the charge of murdering Deng Gang. We will be proceeding with just the one count of murder of Majok Majok.’
‘Very well. The charge of murder against Deng Gang is withdrawn.’
As each prosecution witness gave their evidence Mitch’s lawyer, Frank Morgan scribbled notes on his yellow pad, while Mitch tried to read the scrawl over his Lawyer’s shoulder.
When his time came, Frank cross-examined each witness. Some points Frank raised seemed quite relevant to Mitch, causing Mitch to sit up straight in his chair, while other points had Mitch scratching his head over the relevance.
While Frank plied his trade, Mitch could only watch on, wondering, hoping that after all this stress he felt, after all this ceremony, he would be able to leave here a free man.
The prosecution witnesses list was short. The paucity of witnesses was because the incident occurred inside Mitch’s father’s home. This meant there were no independent witness; only police witnesses.
Despite the short list however, Mitch’s confidence faded when witness, after witness gave evidence that strongly suggested Mitch acted unlawfully when he shot the fleeing man in the back.
Evidence was provided from the first-response uniform police who attended the scene that night and the Detectives who later arrested him. Forensic evidence was provided in relation to traces of gunshot residue found on Mitch’s hands. But the most compelling was the medical evidence from the pathologist’s autopsy report that concluded the man died from complications and blood loss due to a gunshot wound to his back.
Mitch tried to get a read on Frank’s body language to see if Frank showed any sign of concern from the witness evidence. Frank gave nothing away. The dour expression on the Magistrate’s face was even harder to get a read on.
Mitch felt the Magistrate’s glare when the prosecution played CCTV footage obtained from the neighbour’s house across the road from Mitch’s parents. The footage depicted Mitch carrying a shot gun while chasing the fleeing men. He then returned and a short time later where he was seen pointing the shot gun at the man lying on the ground near the front door. It was evident in the footage that no shots were fired at that time, but it still didn’t look good for Mitch.
Mitch’s eyes fell to the floor when the footage, although grainy and captured from a distance away, depicted Mitch striking the man lying on the ground with the butt of the shot gun. Even to him, that footage didn’t look good. He could feel the Magistrate’s glare burning into the top of his head.
By the time the last of the Prosecution witnesses had delivered their evidence, it was apparent, even to Mitch that the Prosecution case rested solely on the fact that Mitch shot the fleeing man in the back, which did not constitute a defence of lawful self-defence. Based on all the evidence presented, it would be hard to defend.
Mitch was worried before the court case began. After hearing the prosecution’s evidence, he was even more concerned. It was convincing, especially when the Magistrate wasn’t required to rule on Mitch’s guilt or innocence today. He only had to be satisfied there was sufficient evidence to commit the matter to stand trial before a Judge and Jury in the Supreme Court. If he did that, Mitch would be returned to Port Philip until the trial.
More than ever Mitch’s freedom was on the line, but to him, it was slipping away, inch by inch.
With the Prosecution case presented, it was the turn of Frank Morgan to present their defence. Frank only had three witnesses to call, the Ambulance officer who attended to Mitch, the neighbour Mr Fuller and an expert witness, Psychiatrist Doctor Murray Vance.
A nervous Barry Fuller was sworn into the witness box. He was a thin man in his early sixties with a long narrow face and a thin moustache that would’ve looked right at home in an eighties porno flick.
Mr Fuller gave evidence of hearing what sounded like a gunshot close by, followed a short time later by a second gun shot. He went outside to check and it was at that time he noticed the front door was open next door at number fourteen.
When he went to check if everything was alright with his friends and neighbours, Max and Jenny Dunne, he noticed a man of African appearance lying on his back in a pool of blood, a short distance outside the front door of the house.
Mr Fuller gave evidence that upon arriving at the front door he saw his neighbour, Max Dunne lying face down in a large amount of blood in the entry hall. There was the body of another African man further down the hallway.
‘Was anyone else standing in the entry hall when you arrived?’ Frank asked.
‘Yes.’ The witness lifted his chin towards Mitch. ‘Mitch was standing beside his father’s body. He was holding a shot gun. I think I asked Mitch if he was OK.’
‘Is the Mitch you refer to, my client Mitchell Dunne?’
‘Yes it is…’
‘What did Mitch do when you asked if he was OK?’ Frank said.
‘Ah, he had his back to me at the time. He slowly turned towards me and looked straight at me, but his eyes were blank, you know, he had this blank stare about him, like he was in a trance or something...He looked like he was out on his feet.’
‘Like he was in a trance or something…he looked like he was out on his feet…’ Frank repeated for emphasis as he glanced up at the Magistrate. ‘What happened then?’ he asked the witness.
‘I saw his eyes roll back in his head...um, the shot gun dropped from his hand. I thought he was going to pass out, so I ran towards him to catch him, but I was too far away. I missed him.’
‘So my client fell to the ground. Was he unconscious?’
‘Yes. He appeared to just pass out on his feet…’
‘Thank you Mr Fuller.’
The Prosecutor rose from his seat to cross examine the witness.
‘So just to be clear, Mr Fuller…you went next door to your neighbour’s house shortly after hearing two shots being fired...’ the Prosecutor said as a question.
‘When you arrived at the front door you saw the accused, Mitchell Dunne…’ he gestured towards Mitch, ‘standing inside the house holding a shot gun. Is that correct?’
‘You said that you saw three bodies lying on the ground in the immediate area. These being your neighbour, Max Dunne and another male in the entry foyer, and a further male lying on the ground outside the front door. Is that your evidence?’
‘Was there anyone else in the immediate vicinity...?’
‘Thank you.’ The Prosecutor returned to his seat.
Next to be called was the Ambulance officer who was called to Hillview Court and who later attended to Mitch at the scene. The Ambo stated Mitch was unconscious when he arrived at the scene, but he regained consciousness a short time later.
The Ambulance officer gave evidence that Mitch’s eyes were not reacting simultaneously to torch light. He held concerns over whether Mitch had suffered potential brain injury, so he wanted to transport Mitch to hospital for further tests and observations. He told how Mitch emphatically refused to be transported.
‘So what happened then?’
‘I stayed with Mr Dunne while the police interviewed him at the house.’
‘Why did you do that?’
‘I wanted to continue to monitor his awareness of his surroundings and his responses to questions.’
‘And what was your opinion on his awareness?’
‘He was vague. Which is consistent to having suffered a loss of consciousness. A bit like a boxer who was knocked out in a fight. When they come too they are fuzzy and vague as to what happened.’
‘So while my client was in this vague and fuzzy state of mind… the police still asked my client questions about what happened that night…?’
‘They did. I thought it was unfair to bounce all those questions off him in the condition he was in.’
‘Thank you Mr Fox.’
Frank returned to his seat. The Prosecutor stood to cross examine the Ambulance officer.
‘Mr Fox, why do you think it was unfair to question the accused at the scene?’
‘I don’t believe his cognitive state was receptive to the line of questions being asked.’
‘Did Mr Dunne fail to answer any of the questions asked on him?’
‘Not that I saw.’
‘So, for him to answer the questions his cognition processes must have been unimpeded, is that correct?’
’No. That is not correct. If Mr Dunne had suffered an injury, he could easily respond to any question asked, but he could say anything and not know what he said, or why he said it.’
The Prosecutor slinked back onto his chair. It was not the answer he wanted to hear. Clearly the Prosecutor forgot his training: never ask a question that you don’t already know the answer to.
The last witness to be called for the defence was Psychiatrist, Doctor Murray Vance.
The Doctor was a white haired, charismatic man in his early sixties. He wore a bespoke dark grey pin striped suit and a striped pale pink tie. He was articulate and spoke with confidence.
Frank stood from his chair holding his note pad as he addressed this witness.
‘Could you please state your name and qualifications for the court?’
‘Murray David Vance.’ The Doctor’s voice sounded calm and steady. ‘I am a medical practitioner, with specialist qualifications in Psychiatry.’
‘Could you please detail your experience to the court …?’
The prosecutor leapt to his feet. ‘The prosecution has no issue with the expert qualifications of this witness, Your Honour,’ he said then returned to his chair.
A slight, almost indiscernible smile emerged out the side of Frank’s face. The Prosecution clearly had no intention of allowing the Magistrate to hear the extent of this witness’s qualifications, experience and credibility from giving expert evidence at over two hundred hearings.
‘Very well,’ Frank said. ‘Doctor Vance, did you examine my client following the shooting incident he was involved in on 14 June of this year?’
‘I did. I met with Mr Dunne around one week after he arrived at Port Philip Prison.’
Frank flipped a page over on his note pad. ‘Did you form any opinion after this meeting with my client?’
‘I did. I examined Mr Dunne for over one hour, which also included an assessment for PTSD and a structured Acute Stress Disorder Interview to determine whether Mr Dunne suffered from any effects of Acute Stress Disorder or Post Traumatic Stress Disorder.’
‘Can you please tell the court, Doctor what Acute Stress Disorder is?’
’Of course. ASD, which is also referred to as Acute Stress Reaction, psychological shock, mental shock, or simply shock, is a psychological condition arising in response to a terrifying or traumatic event, or witnessing a traumatic event that induces a strong emotional response within the individual.’
‘Would being witness to the brutal murder of a parent trigger ASD in a person?’
‘What were your findings, Doctor?’
’These tests I conducted were to determine if any anxiety disorders had developed after the incident witnessed by Mr Dunne, not at the time of the incident. I was satisfied that Mr Dunne exhibited symptoms of Post-Traumatic Stress Disorder, which are symptoms that can develop in people who have been through a traumatic event which threatened their life or safety, or that of others around them. Mr Dunne’s situation was probably compounded by the fact he had been incarcerated.’
’And did you reach a conclusion as to Mr Dunne’s state of mind at the time of the shootings…?’
‘I did. It is my opinion that Mr Dunne had experienced a severe psychological trauma.’ The Doctor shifted his focus to address the Magistrate. ‘Psychological trauma, Your Honour, is often the result of an overwhelming amount of stress that exceeds one’s ability to cope, or integrate the emotions involved with that experience. If often involves physical trauma that threatens one’s survival and sense of security. A person suffering from symptoms of physical trauma may not be aware of what they are doing and may not remember what actually happened.’
‘A person suffering from symptoms of physiological trauma may not be aware of what they are doing and may not remember what actually happened…’ Frank repeated for emphasis. ‘Could this physical trauma you speak of have affected how Mr Dunne reacted to witnessing his father’s murder?’
‘Absolutely. In my opinion, Mr Dunne’s actions were typical of someone who was dissociating.’
‘Can you please inform the court what dissociating is, Doctor?’
’Of course. Dissociating is a psychological form of self-protection that is experienced as an emotional numbness…a detachment from reality. It involves instinctive reactions that people can’t easily control. When people are dissociating they disconnect from their surroundings. It can happen during the trauma, or later on when thinking about, or being reminded of the trauma. In my opinion, Mr Dunne experienced dissociation during the trauma he witnessed and experienced.’
‘So, in your expert opinion Doctor, was my client fully aware of what he was doing when he shot these two intruders…these men who forced their way into his father’s home and later killed my client’s father right in front of him?’
‘I do not believe so. It is my opinion that Mr Dunne experienced dissociation at the time and his actions were done so during a detachment from reality.’
‘So, in this state of mind…this detachment from reality…would my client have been able to understand the differences between right and wrong…what is lawful or unlawful?’
The Doctor firmly shook his head. ‘Definitely not. He would be reacting in a trance like state, with little, to no thought, or understanding of his actions or their consequences.’
’And that is your expert opinion Doctor, which you have formed after examining my client, Mr Dunne…?’ Frank gestured towards Mitch seated beside him.
‘Are you able to inform the court as to why my client fainted…?’
‘I believe Mr Dunne experienced what is called, Vasovagal Syncope, which occurs when your body overreacts to certain triggers, such as extreme emotional distress. Basically, severe emotional stress leads to a burst of activity in particular nerves that lead to reduced heart rate and dilation of vessels throughout the body, reducing blood pressure suddenly. The ultimate effect is temporary reduced blood flow to the brain, which causes temporary loss of consciousness. It’s generally benign and doesn’t require treatment, which was the case for Mr Dunne.’
Frank flipped the pages of his notes back to the front. ‘Thank you Doctor,’ he said then returned to his seat.
The Prosecutor remained unmoved. He sat staring at his notes while he spun his pen in his fingers. By now all eyes in the court were upon him.
‘Do you wish to cross this witness, Sergeant?’ the Magistrate asked.
‘I do Your Honour…’ The Prosecutor lifted his note pad and stood from his seat. ’With all due respect, Doctor…Is it your evidence that you were able to make all these findings on the accused’s state of mind, at the time of the incident, from this one interview you conducted around one week after the incident?’
‘That is correct.’
‘How reliable is your finding on the accused’s state of mind at the time of the shootings, given the time that had transpired…?’
Frank quickly rose from his chair. ‘Your Honour, my learned colleague here accepted, without challenge, the expert credentials of this witness, yet he is now asking this witness to justify his expert findings.’
The Prosecutor addressed the Magistrate. ‘I am trying to establish if there is any possibility the doctor’s findings could have an element of subjectivity to them, given he examined the accused several days after the incident in question. I am trying to establish if the findings are reliable.’
The doctor turned to the Magistrate. ‘I am happy to respond, Your Honour, if that is OK with you.’
The Magistrate nodded and extended his hand towards the Prosecutor. ‘You do not have to respond Doctor…but if you wish, you may answer the question.’
The Doctor turned back to address the Prosecutor. ‘I can assure you Sergeant, it is very reliable. I have been doing this for a very long time and it is my opinion that Mr Dunne was in complete dissociation when he shot those two men, meaning he had no cognitive awareness of what he was doing.’
’Yes, but could this reaction you speak of be as a result of the accused’s sudden realisation that he will be in a lot of trouble for shooting these men…?'
‘Definitely not. Your example speaks of a stress at the complete opposite end of the scale, compared to someone who is dissociating. Worrying about the consequences of one’s actions, while still stressful, shows an awareness of one’s actions. This would not cause psychiatric trauma or trigger dissociation, as in the case with Mr Dunne. These are reactions that one has no control over.’
The Prosecutor slid back into this chair. The witness was excused.
Mitch nodded ever so slightly after hearing the Doctor’s evidence. As the Doctor stepped down from the witness stand, Mitch leaned forward to glance passed Frank, towards the Prosecutor, to monitor his reaction. A slight smile emerged out the side of Mitch’s face when he noticed the concern on the cop’s face.
His gaze shifted from the Prosecutor to Frank. His Lawyer’s stern expression was harder to get a read on.
Frank stood. ‘Your Honour…It is the position of the defence that you should dismiss this matter before you today because my client’s state of mind at the time was such that he was not able to form any intent to kill, nor was he fully aware of what he was doing at the time these men were killed. Further, due to his medical episode, as diagnosed by Doctor Vance, and explained under oath in the doctor's evidence, my client's actions cannot be deemed negligent or careless, because he did not know what he was doing.’
Mitch’s eyebrows arched. He was surprised to hear Frank’s submission to dismiss the charges. This had never been discussed during any of their pre-court meetings. Mitch’s hopeful gaze flicked to the Magistrate to monitor his reaction towards Frank’s submission.
The Magistrate’s facial expression remained unchanged.
The prosecutor stood from his chair. ‘Your Honour, the accused’s actions were deliberate and direct and in complete retaliation to having witnessed his father being murdered,’ the Prosecutor said. ‘The Prosecution has shown that Mr Dunne’s actions demonstrated that he was in fact, fully aware of what he was doing when he shot these men. He wanted revenge for killing his father. He even chased the three accomplices who fled from the scene, before returning a short time later and driving the butt of the shot gun into the face one of the victims. With all due respect to the last expert witness, the accused’s actions at the time demonstrated a deliberate and clear state of mind… and that was for revenge. However in doing so, he shot one of the men in the back as the man ran away. These actions do not constitute self-defence, Your Honour. Instead these actions demonstrate a deliberate intention to kill the fleeing suspect by shooting him with a shotgun from close range.’
To Mitch, the Prosecutor sounded convincing and that was a worry. He tried to get a read from Frank’s expression as the Prosecutor returned to his seat.
‘Thank you Sergeant,’ The Magistrate said. He shuffled some papers on his desk. ‘I am going to stand this matter down while I take time to consider the evidence before me,’ the Magistrate said. He checked his watch. ‘Can everyone be back here at…’ he again checked his watch. ’12.30…?’
Both parties agreed and the matter was stood down.