Her Majesty the Queen v. Clive Gibbons, 2013 ONSC 1775

COURT FILE NO.: CR-12-96 (Milton)

DATE: 20130326

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

CLIVE GIBBONS

Defendant

M. Apel, for the Crown

P. Anderson, for the Defendant

HEARD: February 4-8, 2013.

REASONS FOR JUDGMENT

K. van Rensburg J.:

introduction

1Clive Gibbons is charged with attempted murder and aggravated assault in connection with an incident that occurred on May 30, 2011 when David Markham was injured with a machete at Mr. Gibbons’ residence in Burlington, Ontario.

2Mr. Gibbons has been detained in custody since his arrest. The trial was by judge alone, and there were five witnesses: David Markham, Edna Mueller (Mr. Gibbons’ former common law spouse who is now married to Mr. Markham), Barry Sherman, who is Mr. Gibbons’ longtime close friend, the accused, Mr. Gibbons, and Dr. Gary Chaimowitz, a forensic psychiatrist, who testified for the defence. There were also agreed facts and a number of exhibits, which included copies of emails exchanged between the parties and of writings by the accused that were found in his vehicle after the incident, photographs of the injuries to the victim and of the backyard area where the incident occurred, medical records concerning Mr. Markham’s injuries and treatment, and the machete that was used in the assault.

3By the end of the trial, defence counsel acknowledged that the accused should be found guilty of aggravated assault. Accordingly, the central issue for determination by this court is the state of mind of the accused at the time of his attack on Mr. Markham; that is, whether he had the intention necessary for attempted murder.

EVIDENCE AT TRIAL

4The evidence as to the events leading up to the accused’s assault on David Markham, was quite consistent among the various witnesses. In these reasons for decision, out of no disrespect for the parties involved, but simply for ease of reference, I will use their first names in my recital of the facts.

1. Clive and Edna’s Relationship

5Clive and Edna were in a relationship for some 30 years. They met as members of an astronomy club when Edna was 15 years old and Clive was 21. After ten years they moved in together, eventually purchasing a house in Burlington.

6After graduation from university, Clive worked initially in an optical shop, and then for many years as a technician in the geology department at a university. Edna was employed in Toronto as a geophysicist.

7Barry Sherman had befriended Clive through the astronomy club and he also considered himself a friend of Edna. Barry communicated regularly with Clive and saw Clive and Edna together over the years, but less frequently in the year or two before the incident.

8Clive and Edna had what both described as a good relationship. They considered themselves spouses, although they never married. There were few disagreements and there was no violence. They shared many interests together. One growing source of tension in the last year or two before their separation, was the amount of time Clive spent caring for his widowed mother who had several medical problems. Clive, who was an only child, provided care and assistance for her, visiting her home twice a day, and Edna felt that this detracted from Clive’s personal time, and made her feel like “second-best”. Notwithstanding these concerns, the two remained together in a faithful, long-term relationship.

2. The Separation

9The situation began to change in 2009 and 2010, when Edna developed a relationship with David Markham, who lived in the United States. It began out of Edna’s interest in Napoleonic history and historical artifacts, a subject in which David was an expert. David had written or edited several books on the subject, and, with an Australian colleague, had created podcasts of their skyped conversations which were available on the internet. After listening to these podcasts, Edna sent an appreciative email to David and his collaborator.

10Some time later David responded to Edna. He eventually suggested that she attend an upcoming conference of the Napoleonic history association of which he was the president, which was taking place in Montreal. Edna attended the conference in July 2009, where she gave a presentation and met David for the first time. Their relationship as friends, and then their romantic interest, developed over the next several months, through email and skyped conversations and their attendance at conferences in February and July 2010.

11It was at a conference in Las Vegas in October 2010, that the relationship became intimate, and in the weeks that followed they decided that they wanted to spend the rest of their lives together.

12David, who had a lengthy marriage himself, intended to inform his wife about the relationship with Edna after their celebration of Christmas in 2010. Edna was planning to tell Clive before Christmas, and she knew it would be difficult.

13Clive was aware of Edna’s friendship with David and his mentorship of her interest in Napoleonic history. He had suspicions about their relationship when she was in Las Vegas, which were reinforced by her behaviour on her return. Eventually she told Clive that she was leaving him because she was in love with David.

3. The Events Preceding the Attack

14The news that Edna was leaving was very upsetting to Clive. At his urging, Edna agreed to remain in their home, and they continued many of their usual routines. During this time, Clive frequently left notes asking Edna whether she was being controlled or manipulated by David Markham. Edna perceived these as attempts by Clive to save their relationship. Edna ultimately left the home on Boxing Day, and went to live with her mother, also in Burlington.

15Over time, through email communications, Clive and David appeared to develop a type of friendship. This began with a friendly email from Clive in November 2010, in which he did not let on that he was suspicious about David’s relationship with Edna. Their email communications continued with increased frequency after the relationship was disclosed. The emails discussed their shared interests and hobbies. Edna was copied with the emails, and was happy that the two seemed to be getting along.

16While these cordial communications were taking place however, Clive was becoming increasingly despondent. Edna knew that he was very distraught about the break up, that he appeared agitated and anxious, and was not sleeping properly. He sent Edna six to ten emails a day, some of which were innocuous, and some of which contained cryptic, dark messages, such as “when the time comes remember you are the beneficiary of my RRSPs.”

17Clive and Edna attended counselling in December 2010, and in the new year, Clive went to see his family doctor and was prescribed sleep medication. He had several appointments with his doctor for what he described as “talk therapy.”

18At the end of January 2011, Clive took an overdose of pills. He called Edna, who attended the house with her mother and got Clive medical help. He was in the hospital for several days. Edna learned from a note Clive had left for her that this was his second attempt to kill himself, the first having occurred earlier that month the day she left with David for a conference in Amsterdam.

19On April 3, 2011, David, who was still living in the United States, sent Clive a lengthy email, expressing concern about his mental health and offering advice, based on his own prior experiences with depression. Clive responded briefly and politely, thanking David for his comments, but telling him that some of his comments were “unnecessary and/or assumptive”. David replied, explaining that he was trying to be helpful, and offering a sincere apology if his remarks seemed out of line.

20Clive continued to maintain and to foster a relationship with David. The many emails that followed had a friendly tone, and included plans for Clive and David to get together when David was next in town.

21On April 13, 2011, David and Clive met for the first time, at what both described as a scotch tasting event at Edna’s mother’s house. Each of the men brought along a bottle of scotch, and a mystery bottle for a blind tasting. Everyone described the evening as pleasant. Another get-together followed a few days later, which was also described by Clive as enjoyable. They had dinner at Edna’s mother’s house and Clive brought several bottles of wine that he enjoyed sharing with David, who seemed to have an interest in fine wines.

22David’s next visit, at the end of May 2011, was for the purpose of closing on a condominium in Toronto that he and Edna had purchased together. Again, there were friendly emails between Clive and David preceding the visit. In a May 10th email, David acknowledged that Clive had invited the two of them to his home “for an astronomical viewing, helped along by some very fine vintage wines.” On May 25th, Clive emailed David to say that he would serve them chili and scotch and that “perhaps Saturday night will be good enough for some stargazing”. The next day, Clive sent an email to David and Edna suggesting that, because of the weather, they save the stargazing and icewine for the Monday night, but that they get together the next evening for chili and scotch, “rain or shine.”

23In the early hours of May 26, the day they were to get together for chili, Edna received a call from Clive on her cell phone. She had received late night calls like that before from Clive when he was upset, and on this occasion he seemed distressed when he called. He invited Edna and Clive to attend an antiques show later that day. Edna initially declined, but David called Clive back and said that they would like to go, and plans were made to pick up Clive and to attend the show.

24The visit to the antiques show was described by all three in positive terms. Clive noted however that, after seeing Clive and Edna talking, David began to stay close to Edna, making sure the two were not alone.

25The chili dinner went ahead as planned that evening. In his testimony Clive recalled in detail the particular wines they had consumed and the music he played for his guests. Clive took David on a tour of his collectibles, and after David admired a vintage camera, Clive presented it to him as a gift. While the camera had a price of $5 on it, David considered this to be a very friendly gesture.

26In the course of the evening, David decided to raise certain issues, which ultimately were upsetting to Clive. David first asked Edna’s permission before he spoke, and, while she resisted, Clive encouraged David to go ahead, as David was a guest in his house and “it seemed like he had something important to say.” First, David told Clive that, as a former teacher, he was uncomfortable with the age difference between Clive and Edna when they first began to date. Then, he told Clive that Edna had not been sexually fulfilled in their relationship. There was also a comment which was made that evening, or possibly on an earlier occasion, that Clive spent too much time caring for his mother, that he was “married to his mother”. David told Clive that he was just trying to help him, to give him advice for his future relationships. Edna was embarrassed by the conversation, which she thought was unnecessary.

27Clive was visibly unhappy and taken aback by David’s comments. Nevertheless, he kept his temper and tried to be diplomatic and a good host. He did not react angrily or terminate the evening. Instead, the three parted in a cordial manner, still planning to get together in a couple of days at Clive’s house for stargazing.

28Edna and David were questioned about why they maintained contact with Clive when they knew he was unhappy about their relationship, and had even tried to commit suicide. They both claimed that they were trying to be friendly because this is what Clive appeared to desire, and they felt that to break off contact with him completely would be devastating. They believed from his friendly communications and willingness to socialize with them, that perhaps they could continue to offer Clive friendship. From Edna’s perspective, it would also help to remain close to Clive so that he might assist with her mother who lived in Burlington, after she and David moved to Toronto.

29Clive’s friend Barry testified that he heard a great deal from Clive about David during this period, and that 90% of it was negative. He understood that Edna and David were trying to remain on friendly terms with Clive, in part to help him and in part because Clive and David shared a number of interests. Still, he found it strange that they were keeping up this type of contact.

30At some point in February 2011, and before he met Clive, David went with Edna to see the house Clive and Edna had lived in together. They went there in Clive’s absence, and knowing that he would not approve. When Clive found out, he was unhappy, and more upset than he let on in the friendly emails that he continued to send to David.

4. The Events of May 30th

31On May 30th the plan was to go out for dinner, and then to return to Clive’s home for stargazing. There was an email exchange that day, where David told Clive that they would pick him up around 7:00 to head over to a particular restaurant. After agreeing that 7:00 was fine, Clive told David, “I’m taking the truck in for service later today, so you won’t see it on the driveway when you arrive. But, I’ll be home”.

32Edna and David picked up Clive that evening and they went to the restaurant together. They stayed there about one and a half hours and they shared friendly conversation. The men recalled having two bottles of wine (Edna recalled only one), and David and Clive had a scotch. Clive was not drinking as much as the other two, sometimes covering his glass with his hand when David offered him more wine. According to Clive, someone had to stay sober to drive home.

33Everyone agreed that Clive was not intoxicated at the restaurant. Edna and David thought no one was drinking too much. Clive, by contrast, said that David was intoxicated, by the way he was driving in the parking lot and then on the road when he almost cut off another driver. Nevertheless he let David drive them home.

34After arriving at Clive’s house, the three went outside to set up the telescope. While waiting for it to get darker and for the telescope to adjust to the outside air temperature, they went inside, where they chatted over drinks.

35Eventually, they went outside for the stargazing. Clive set up the eyepiece and Edna looked through it, followed by David. They took turns looking through the telescope. Clive was moving the telescope around so that they could look at other objects elsewhere in the sky. At one point Clive went into the house to get another eyepiece, and David took the opportunity to relieve himself against a tree. As David was doing so, Clive returned to the back patio and exchanged a look with Edna, who was embarrassed. Nothing was said, and the stargazing continued.

36Clive changed the eyepiece, and repositioned the telescope, moving it closer to the garden shed, so that they could view a different part of the sky. When it was David’s turn, he bent over the telescope, with Edna to his right, and Clive to his left beside the shed. It was at this point that Clive attacked David. He reached into the shed, taking out a machete that was hanging on a hook by the door, and swung it at David. David felt a very sharp pain to the back of his neck, bolted up, and then felt a sharp pain to the front of his neck. Edna exclaimed, “What have you done?”, and followed Clive as he ran from the backyard toward the front of the house. Edna grabbed his clothing and swung him around, and Clive broke free and ran down the street.

37David was bleeding profusely and holding the front and back of his neck. After trying unsuccessfully to call 911 from the house, Edna drove David to the hospital. David received 16 stitches to the front of his neck and three stitches to his back between his shoulder blades. He remained in the hospital for two nights.

38In the meantime, Clive ran to his truck, which was parked a few streets away. There he consumed about 50 tablets of the anti-depressants he had been prescribed and a bottle of Benadryl, as well as a half bottle of wine laced with vodka. Then he called his friend Barry on his cell phone.

5. Clive’s Conversation with Barry

39Barry testified that he received a call from Clive between 12:30 and 1 a.m. The first thing Clive said was, “I’ve finally done something. I attacked David Markham in the backyard with a machete. I tried to kill him with a machete.” He told Barry that David and Edna had come over and he had taken out a machete that he purchased a few days or a week before and put in the shed. When David was looking through the telescope he struck him. He said he threw the machete down and had run off in his truck and had taken another overdose. He wouldn’t say where he was except that he was in Burlington in his truck. Clive and Barry spoke for about 30 minutes. For about 15 minutes Clive was lucid, and then he began to fade. Barry encouraged Clive to get medical attention but he refused. He slowly faded away and then Barry called 911.

6. The Physical Evidence

40The testimony of two police officers from the preliminary inquiry was admitted on consent as evidence at trial. This evidence dealt with the discovery of Clive’s vehicle. Inside were a pill bottle and a Benadryl bottle, both empty. A machete with blood on it was found in the truck, together with a cell phone.

41The machete, which was an exhibit at trial, had a curved blade about nine inches long and about three inches wide at its widest point. The blade was serrated on one edge. The machete appeared new, and had a plastic handle.

7. The Accused’s Writings

42The police also discovered two bundles of writings in Clive’s truck, consisting of undated typed letters, some of which appeared to be in the form of poems. Some of the writings had been reproduced multiple times. One of the bundles had attached to it a handwritten note reading, “EDNA – PLEASE READ THE ENCLOSED. I’M NOT ASKING TO BE SAVED. IT’S TOO LATE. THE CATS ARE NOT IN DANGER, BUT PLEASE LOOK AFTER THEM – I’M NOT AT HOME. Clive xxxxxxxxYOU’LL NEVER KNOW HOW MUCH I LOVED YOU, DEAR.”

43The first bundle consists of seven letters, six of which are addressed to Edna directly, and appear to be structured as poems, which bear the following titles: “Down a Rabbit Hole, Darkly”, “Your Promises…”, “Honesty”, “My Promise to You”, “How to Destroy Someone Who Loves You” and “Third Time Lucky, Three Strikes I’m Out”. In these writings, Clive explains how he went from planning to kill himself, to including in his plans the killing of David, and the reasons for doing so.

44There is also a letter addressed “Dear David”, but its contents indicate it is directed to Edna. The letter contains the passage: “You should have kept your distance, David. Perhaps you thought I was too weak to harm you. Too afraid to hurt Edna’s feelings. Not the vengeful type. That I’d roll over and let you have your way. I allowed you to think that, up until now. Our first and last, fateful meeting. It gave me great pleasure to remove you from the face of the Earth. To watch the life drain from your old, pathetic body.”

45The second bundle contains what appear to be drafts of some of the letters from the first bundle.

8. The Accused’s Evidence of his Intention

46Clive testified that his mood in the months that followed the separation was very low. He had no motivation or interest in his hobbies, and he felt like an empty shell. He was just going through the motions at work and taking care of his mother. He had difficulty sleeping and was often tired. His family doctor prescribed a sleeping aid. After his suicide attempt at the end of January, the prescription was changed to a low dose of an anti-depressant, also as a sleep aid. He had asked for a referral to a psychiatrist but his doctor recommended a psychoanalyst instead.

47Clive described himself as “devastated” by the loss of the relationship with Edna. He found some of the things David said to him and did offensive, and he was depressed and suicidal.

48In the final week of May he decided to take a week off work. He felt his mental state had reached a crisis, with his mother’s situation and loss of effectiveness at work. He told his superiors he was looking at nursing homes for his mother. But basically he stayed home. The first day he got a call from his family doctor who told him that he had to sign off on a plan to put his mother in a care facility that day. His mother was in hospital with a broken hip. He felt betrayed and became upset with the doctor on the phone. He stopped taking his medication because he was upset with his doctor. After he came off the medication he felt a greater range of emotions.

49Clive insisted that he had never planned to kill David, that his writings were works of fiction only, that he had produced in January or February 2011, before ever meeting David. He denied that he had been thinking of killing David, but admitted that he had described having such thoughts to the psychiatrist, Dr. Chaimowitz.

50Clive testified that he had purchased the machete some months earlier with the intention of clearing out some branches from the yard. He admitted that he had lied to David and Edna in the email telling them that his vehicle was in the shop; his explanation for doing so was quite complicated: he thought Edna may have taken her car in for repairs, and received a loaner vehicle, and he was worried that they would insist on taking Clive’s vehicle to the restaurant. He didn’t want this to happen out of fear that Edna might find the letters he had written, which he had placed in the vehicle, so he made sure his vehicle would not be in the driveway when they arrived to pick him up for dinner.

51Clive admitted that he had placed the pills and alcohol in his vehicle with the intention of committing suicide, however he denied that this was his firm intention the night in question. Rather, he claimed that he intended to commit suicide that night or “around then”, and that he was thinking that there was a “good chance” that he would do it that night.

52Clive described his attack on David as an impulsive act that occurred as a reaction to David relieving himself in his yard, a place he considered his oasis. This was the “last straw”. Clive admitted that the attack had not occurred immediately, but several minutes later, after he had repositioned the telescope and installed a stronger lens. As David bent down to look through the eyepiece, Clive walked over to the garden shed, reached in and grabbed the machete. He approached David and raised the knife and brought it down. It was dark, and he thought he swung for his shoulder area and back. Clive testified that he struck David because he was very upset with him, and that he just “saw red” and was angry. He insisted he wanted to injure David, but never intended to kill him.

53Clive testified that he told his friend Barry that he had attacked David with a machete. He didn’t recall telling Barry that he tried to kill David, but if he had done so, it was to prove to Barry that he hadn’t wimped out or gone out without a fight.

PSYCHIATRIC EVIDENCE

54Dr. Chaimowitz was qualified at trial as an expert in forensic psychiatry. He conducted an assessment of the accused on December 20, 2012 and January 4, 2013, and he reviewed the accused’s background history, social history and various records.

55Dr. Chaimowitz diagnosed the accused with major depression. He did not suggest however that the accused suffered from a psychiatric illness or condition that affected his ability to form the intention required for attempted murder. With respect to the termination of his anti-depresssant medication before the event, Dr. Chaimowitz noted that he was on a low dose for anxiety and to assist in sleeping, and that while stopping the medication may have worsened his insomnia, this would not have resulted in any dramatic change in his mental status.

56Dr. Chaimowitz offered an opinion as to the state of mind of the accused leading up to the offence. He noted that Clive had become depressed after Edna left him, and he regarded David as the person who stole her away, and was unworthy of her. Desperate not to lose Edna’s affections, he ended up socializing with David to ensure contact with Edna, and in the faint hope that she might “come to her senses” and return to him. While they socialized, the accused began to ruminate and dwell upon the relationship between Edna and David. He found David’s behaviour insulting, but did not express his anger, even after David gave him some “friendly advice” about his sexual inadequacy. Dr. Chaimowitz referred to what Clive described as the “final insult” when David urinated in Clive’s yard, and he noted:

His increasing rage, expressed in some of his writings, boiled over and he began to think about actually enacting some physical revenge on Mr. Markham. In my opinion, that night whatever fantasies he had about killing Mr. Markham turned into plans to act.

57With respect to the accused’s contention that he had never thought about killing David, Dr. Chaimowitz was doubtful. He stated:

Mr. Gibbons indicates that this was an impulsive act, despite the fact that he had many writings describing his anger towards Mr. Markham and wish to kill him and himself. He said that those were “writings” and nothing that he ever wished to effect and nothing that he was going to effect. That may very well be the case, but the extent of the writings, the specifics of the writings and some of the comments that he made to his friend Barry Sherman from his car at the time he was attempting to kill himself would suggest that there was at least some premeditation. Even in conversations with me, Mr. Gibbons had thought about using the machete prior to the night of the offence.

58Dr. Chaimowitz was guarded in his opinion. He noted that, while the accused’s writings and actions might support the view that he had decided to kill the man he felt was defiling and taking advantage of the love of his life and then kill himself, it could also be that his writings were an expression of his anger, and perhaps his only outlet to do so. The fact that he struck David from the back in the dark might be consistent with a cowardly act.

59It is the function of the trier of fact to determine, based on all of the evidence, whether the accused had the required intent for the offence of attempted murder. The doctor’s identification of the two alternative conclusions that might be drawn from the pieces of evidence, were based not on his psychiatric expertise, but on his own assessment of the various factors in play that evening – the fact that the victim was struck from behind and in the dark, suggesting perhaps an intention only to injure, or by reference to the accused’s writings and actions, which the doctor noted would support a different conclusion. The doctor cannot be faulted for providing such evidence at trial; he did what he was asked to do in offering an opinion on the accused’s state of mind; to his credit he was appropriately tentative in the conclusions he was prepared to draw.

60Crown counsel objected to the admission of Dr. Chaimowitz’s opinion on what he described as “the ultimate issue”. While I permitted the doctor to testify in this judge-alone trial, and reserved my decision respecting the admissibility of such evidence, I have come to the conclusion that the psychiatric evidence, which did not provide any real support for the defence in any event, is inadmissible.

LAW AND ANALYSIS

61The issue in this case is whether the Crown has established the specific intention for the offence of attempted murder. Although the accused pleaded not guilty to aggravated assault, defence counsel acknowledged in argument that he is should be found guilty of this offence based on the evidence at trial.

62The leading case with respect to the elements of attempted murder is R. v. Ancio, l 1984 69 (SCC), [1984] 1 S.C.R. 225. In that case, McIntyre J. stated at p. 247:

…As with any other crime, the Crown must prove a mens rea, that is, the intent to commit the offence in question and the actus reus, that is, some step towards the commission of the offence attempted going beyond mere acts of preparation. Of the two elements the more significant is the mens rea….

With respect to the mental element for attempted murder, McIntyre J. stated at p. 251:

… The mens rea for attempted murder is, in my view, the specific intent to kill. A mental state falling short of that level may well lead to conviction for other offences, for example, one or other of the various aggravated assaults, but not to a conviction for an attempt at murder.

The mens rea for attempted murder is therefore the intention to cause death or to cause bodily harm knowing it to be likely to cause death.

63Crown counsel asserted that the evidence of Clive’s intention to kill David is overwhelming. He pointed to the accused’s writings in which he disclosed his plans to kill David, and then himself, his actions in arming himself with a machete shortly before the event, setting up the stargazing and parking his vehicle with the pills and alcohol with which he planned to kill himself, as well as his statements after the event to his friend Barry. He urged the court to consider the serious injury that was inflicted on David, with a blow to the neck with a weapon that was capable of killing him.

64Defence counsel argued that, although Clive may have had good reason to resent David, and may even have fantasized about killing him, his actions that night in the dark were timid and ineffectual. He was lashing out at David, wanting to hurt him and then to kill himself, but because it was so dark and he could not be sure of where he was striking David, he could not have intended to kill him. Defence counsel also asserted that Clive was breaking down emotionally as a result of David’s arrogant and belittling conduct, and that his mind was not sufficiently focussed to have intended to kill David on the night in question. In these circumstances, the defence submitted that the Crown has not established the necessary intention beyond a reasonable doubt.

65In R. v. Malatesta, [2005] O.J. No. 820 (S.C.J.) Bryant J. noted at para. 52, in a case where the accused did not testify, and there was no direct evidence of his state of mind:

…I must determine the accused’s state of mind by drawing inferences from his acts, omissions and utterances before, during and after the assault…

66In the present case there is a great deal of evidence from which to determine the accused’s state of mind, including his words and actions before the event (including his writings), his behaviour at the time, and what he communicated to his friend Barry both before the incident and immediately thereafter. I must also consider the accused’s own testimony about his thoughts and intentions preceding the incident.

67Because the accused testified, it is necessary to keep in mind the requirements of R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742. If I believe his evidence that he intended only to injure David, I must find him not guilty of the offence of attempted murder. If I do not believe his evidence, but it leaves me with a reasonable doubt, I must find him not guilty. It is only if I am satisfied on all the evidence that the necessary intention has been proven beyond a reasonable doubt that he may be found guilty and convicted of the offence.

68I start with the fact that Clive was devastated by the separation from Edna and was suicidal. He made two unsuccessful suicide attempts and had taken steps to plan his third and final attempt which occurred on May 30. Clive disliked David from the time that Edna had announced she was leaving him. Notwithstanding his courteous emails, and gracious behaviour, his true feelings were communicated to his friend Barry and in the writings that were found in his vehicle after his suicide attempt. Whether he kept company with David and Edna out of a desperate desire to keep in touch with Edna, in the “faint hope” that she might come back to him, out of a need for companionship, or because he was plotting to take his revenge on David, there is no question that he was angry and resentful toward David and he blamed him for taking Edna away. Although Clive was emotionally distraught in the period leading up to the assault on David, there was no evidence, as his counsel suggested, that he had broken down emotionally to the point that his mind was not sufficiently focussed to have the intention to kill. To the contrary, Clive had a motive to kill David, and according to the letters he wrote, he had contemplated this action, which, in his anger and despair, would be followed by his own suicide.

69Much of the testimony of the accused was consistent with the evidence of the other witnesses, as to how the events unfolded in the months, days and hours before the assault on David. There were certain aspects of his testimony however that I found not at all credible. First there was the explanation of why he had parked his vehicle away from the house and then lied to Edna and David about it in an email earlier that day. His explanation, which involved the fear that Edna would find the writings he had left in the vehicle (which could simply have been removed), made little sense. I also did not believe Clive’s assertion that he had purchased the machete in order to do some gardening. This was inconsistent with what he told Barry immediately after the incident, about purchasing the machete to carry out his attack on David. I also did not believe the accused’s contention that he wrote all the letters in which he talked about killing David and himself, in January or February 2011, and had placed them in his truck in March, with no intention of Edna ever seeing them. The content of the letters suggests some of them were written at the time or just prior to Clive’s first meeting with David, which occurred in mid-April. The letters were placed in Clive’s vehicle, where he admitted that he was planning at some point to commit suicide, with a note to Edna, “please read”.

70The accused appeared to insist on these details in an effort to explain away incriminating evidence, and to support his contention that the attack on David was an impulsive act, and not something he had thought about or even planned. The fact that the vehicle was parked down the street before David and Edna arrived, the purchase of the machete, and its easy access in the garden shed while the three engaged in stargazing and the letters which provided an explanation to Edna of what he had done, and their presence in the vehicle after his attempted suicide, are however all consistent with Clive putting into action a plan to kill David and then himself.

71In his testimony, while Clive admitted that he had “seen red” and was very angry, he insisted that he was only trying to hurt David. He testified that, in the darkness he couldn’t tell where he was swinging, but he also claimed that he was aiming for David’s back. Whether he was aiming at his back or somewhere else, Clive knew where David was, and how his neck and back were positioned, because he had set up the telescope for David to look through. The accused also asserted that he struck one blow that landed on David’s back (which would explain the cut requiring three stitches). David testified however that he had been struck twice, recalling a blow to his back, and then one to his neck, which are consistent with the photos of his injuries and the number and locations of the stitches required to close his wounds. When shown these photos, the accused agreed that he had caused the injury to David’s neck as well, although he could not explain how it had happened.

72I do not accept Clive’s evidence that he was only trying to injure David, and it does not leave me in any doubt with respect to his intention at the time of the attack. Clive’s writings before the events reveal a hatred of David to the point that he had contemplated killing David and then himself. The writings may have contained an element of fantasy, however his actions in arming himself, preparing the stargazing evening and his vehicle and his acknowledgment to his friend Barry after the event, indicate that the accused had translated his wishes into action. Whether the act was impulsive, in the sense of the “last straw” in a series of perceived insults to Clive, or the culmination of a plan that Clive had put into action as early as when he began his writings, or when he invited David and Edna over for stargazing, the weapon he used and the circumstances in which the attack occurred are consistent with an intention to kill David, and not just to injure him. This was not an impulsive attempt to simply hurt David, as Clive asserted, but a deliberate attempt to kill David before taking his own life

CONCLUSION

73The particular circumstances in which Clive Gibbons found himself, may well have led to his feelings of rejection and hopelessness and to thoughts and actions which might have been unexpected considering his history and his passive personality. That said, there is no question in my mind that, as a direct result of his despair, anger and resentment, Clive Gibbons formed the intention to kill David Markham and then himself. The attack on David Markham was an act in furtherance of that intention.

74As such, I am satisfied beyond a reasonable doubt that Clive Gibbons had the necessary intention for murder at the time he attacked David Markham with a machete. He is therefore found guilty and convicted of the offence of attempted murder.

K. van Rensburg J.