R v Cage; R v Lowcock; R v Stamp (No 2)

1. [1]

   On 7 February 2024 the accused Elijah Cage, Max Vincent Lowcock and Tyson George Stamp, were arraigned on three counts on an indictment dated 7 February 2024 as follows:

   1. (1)

      Count 1: On 29 August 2021, at Salt Ash in the State of New South Wales, Elijah Cage, Max Vincent Lowcock and Tyson George Stamp did murder David King.

   2. (2)

      Count 2: On 29 August 2021, at Salt Ash and other places in the State of New South Wales, while in the company of other persons, Elijah Cage, Max Vincent Lowcock and Tyson George Stamp took AB without her consent and with intent to obtain an advantage, namely, to avoid detection by police.

   3. (3)

      Count 3: On 29 August 2021, at Heatherbrae in the State of New South Wales, Elijah Cage and Tyson George Stamp did intentionally or recklessly destroy by means of fire certain property, namely Hyundai Santa Fe (NSW Reg: CZ15CJ), the property of Avis Budget Group.

2. [2]

   There is a non-publication order in respect to the name of the complainant in count 2. The complainant will be referred to in this judgment by the initials “AB”.

3. [3]

   On 7 February 2024 each accused pleaded not guilty to counts 1 and 2. Mr Stamp and Mr Cage pleaded guilty to count 3. Mr Lowcock was not charged with count 3.

4. [4]

   On 6 March 2024 the Crown case closed and the accused Mr Stamp, made an application for a directed verdict on count 1 (“the directed verdict application”). Mr Stamp will either be referred to by his name or as “the applicant”.

5. [5]

   The Crown submitted that the directed verdict application should be refused.

6. [6]

   There is some urgency in providing a judgment to the parties. Having determined that the application must be granted, the Crown wants an opportunity to consider its position. I have therefore endeavoured to produce a judgment quickly, in an effort to minimise inconvenience to the empanelled jury.

Background

1. [7]

   On 13 December 2023 the proceedings were listed before me for case management purposes. At that stage I was apprised of the Crown case having read the Crown Case Statement. I expressed concern as to whether the Crown could prove the elements of murder against Mr Stamp. That concern was expressed in the following exchange:

2. [8]

   The Crown case has closed. I have heard all the evidence relied upon by the Crown. My concerns have not been abated.

3. [9]

   I proceed to decide this application fully cognisant of the principles that apply to an application for a directed verdict (which will be set out below). I acknowledge that in deciding this application I take the Crown case at its highest. It is not part of my function to have regard to any conclusion I may have formed about the credibility and reliability of any of the Crown witnesses, in particular, the credibility and reliability of AB, the primary Crown witness.

4. [10]

   I must make an assessment on the basis that the Crown case is taken at its highest. The question is whether the inferences contended for by the Crown are available on the evidence; that is, whether, following a rational process of reasoning, the inferences relied upon by the Crown are available, as opposed to whether there are competing inferences. Any conclusion reached by me that a verdict of guilty of murder, in the case of Mr Stamp, would be an unreasonable verdict, is irrelevant.

5. [11]

   I also bear in mind that inferential reasoning involves a rational process of reasoning on the evidence as opposed to speculation or guesswork to fit a Crown case theory.

Crown case

1. [12]

   The Crown case can be briefly summarised as follows: prior to his death, the deceased, David King, was involved in the supply of illicit drugs. AB was a long-term friend of the deceased and had, on occasion, purchased illicit drugs from him over a number of years prior to August 2021.

2. [13]

   On 29 August 2021, AB arranged for the deceased to supply a quantity of methylamphetamine to Mr Cage, whom she knew but the deceased did not. In return for arranging this transaction she would receive a quantity of methylamphetamine from the deceased.

3. [14]

   The accused, Mr Cage, was a friend of AB. They had known each other for several years prior to August 2021. The accused, Mr Lowcock, also knew AB prior to August 2021. The accused, Mr Stamp, was a friend of Mr Cage. There appears to be no dispute that the accused knew each other prior to August 2021.

4. [15]

   About two weeks prior to 29 August 2021, Mr Cage had a telephone conversation with Kiara Piening, a mutual associate of Mr Cage and the deceased. Ms Piening had a sexual relationship with the deceased and purchased drugs from him.

5. [16]

   During this conversation, Mr Cage asked Ms Piening whether she would be willing to assist him to rob the deceased by arranging a meeting. Ms Piening gave evidence that she had a conversation over the phone with Mr Cage during which he asked her if she would help him rob the deceased [2] and also told her that he had “the piece”. [3] Ms Piening gave evidence that when the phone call ended she “went and told” the deceased about what Mr Cage had said to her. [4] This evidence has been admitted in the case of Mr Cage only. It does not form any part of the case against Mr Stamp.

6. [17]

   On 20 August 2021, Mr Stamp hired a Hyundai Santa Fe (“the Santa Fe”) from Avis Budget Group. The Crown alleges that Mr Stamp hired the vehicle principally for the use of Mr Cage.

7. [18]

   At about 3:47am on 29 August 2021, Mr Lowcock contacted AB via Facebook messenger, indicating that he wanted to purchase drugs. Later that morning, the pair met at the home of one of AB’s associates where Mr Lowcock purchased 0.3 grams of methylamphetamine from AB for $150.

8. [19]

   Between 5:39am to 8:59am on 29 August 2021, Mr Cage exchanged text messages with an associate named William Whelan. They discussed sourcing money to buy illicit drugs, including the possibility of robbing someone to do so.

9. [20]

   At about 8:00am on 29 August 2021, Mr Cage contacted AB, telling her that he wanted to obtain drugs and requested that she source drugs for him. The pair exchanged a number of messages and telephone calls throughout the morning. In cross-examination AB agreed that Mr Cage had initially told her that he wanted one quarter of an ounce of methylamphetamine and was willing to pay $2,400 for this amount. [5]

10. [21]

    At 11:13am, Mr Cage made a telephone call to another associate named Darcee Martin. The recorded conversation suggests that Mr Cage had identified the deceased as a target of a robbery.

11. [22]

    AB believed that she was assisting in setting up the sale of methylamphetamine from the deceased to Mr Cage. AB arranged for the deceased and Mr Cage to meet at Paul’s Corner (which is located next to a BP service station) to conduct the transaction. The arrangement was that she would receive 0.8 grams of methylamphetamine for her part in arranging the transaction.

12. [23]

    At 12:51pm on 29 August 2021, the Santa Fe drove through the car park of the BP service station at Paul’s Corner in Salt Ash. The Crown case is that each of the accused were in the vehicle at this time. At 1:20pm, the deceased, driving a Ford Ranger utility (the “Ford Ranger”), turned into Cecilia Close, Salt Ash.

13. [24]

    AB, accompanied by Kristina Feeney, drove into Cecilia Close at 1:25pm. AB approached the deceased’s car and observed that Mr Cage was seated in the back as the deceased sat in the driver’s seat. Mr Cage exited the car while the deceased and AB had a conversation, whereupon the deceased asked AB how long she had known Mr Cage. She responded that she had known him for some years and the deceased could trust him.

14. [25]

    Thereafter, Mr Cage got into the back seat of the deceased’s car, and they discussed the price of the drug transaction. AB was present during this discussion and attempted to facilitate the negotiations. At the same time, Mr Stamp and Mr Lowcock approached the deceased’s car and got into the back seat next to Mr Cage.

15. [26]

    Mr Cage agreed to pay $5,000 for half an ounce of methylamphetamine. Mr Stamp and Mr Lowcock got out of the deceased’s car.

16. [27]

    Mr Cage wanted to try the product before finalising the transaction. The deceased told Mr Cage that he did not want to conduct the transaction on Cecilia Close. The deceased drove his vehicle onto Hideaway Drive and pulled over to the side of the road (location 2). The Santa Fe, driven by the applicant, pulled over behind the deceased’s vehicle. The deceased handed Mr Cage a satchel containing the quantity of methylamphetamine that he had agreed to supply. Mr Cage produced a pipe and put some of the methylamphetamine into the pipe to try the drug.

17. [28]

    Mr Lowcock approached the deceased’s car and got into the rear passenger seat next to Mr Cage. AB was seated in the front passenger seat of the deceased’s car. Mr Cage and Mr Lowcock got out of the deceased’s car without paying for the drugs. AB also got out of the car and followed Mr Cage, remonstrating with him about the fact that he had not paid for the drugs.

18. [29]

    Mr Cage retrieved a taser (contained in a casing similar to a mobile phone) from the Santa Fe and discharged it towards AB, impacting her chest. It is alleged that Mr Cage told AB that he was going to rob the deceased and pushed past her while he was carrying the taser. He then approached the front passenger side door of the deceased’s vehicle, which was open. AB gave evidence that Mr Cage was not armed with a firearm.

19. [30]

    Mr Cage is alleged to have entered the deceased’s vehicle and said: “give me all your drugs. Give me.” [6] and “started proceeding to try to rob him.” [7] AB gave evidence that Mr Cage kept “saying the exact same thing over again to David.” [8] The deceased complied with this demand handing over a bag (possibly more than one bag) containing a small quantity of drugs.

20. [31]

    Mr Cage then demanded money from the deceased. The deceased picked up a small bag containing a wad of cash. As this was occurring, AB approached the open front passenger side door of the deceased’s vehicle and said to Mr Cage: “No, don’t do this. What are you doing?” [9] and “Stop. Why are you doing this?”. [10] AB gave evidence that she was crying and upset and trying to stop the robbery from happening. [11]

21. [32]

    Mr Cage pushed past AB and got into the front passenger seat of the deceased’s vehicle. The car began to move away along Hideaway Drive. As the car began to move away, Mr Lowcock dived into the deceased’s vehicle to the rear driver’s side passenger door. AB agreed that she described to police the way in which Mr Lowcock entered the rear driver’s side of the car as follows:

22. [33]

    The deceased drove the car along Hideaway Drive for a short distance. The car was swerving from one side of the road to the other, knocking over mailboxes. The Crown alleges that the deceased was shot once to the rear left hand side of his head and neck, by Mr Lowcock.

23. [34]

    AB heard the noise of a firearm discharge and saw the deceased’s vehicle swerve off the road, striking a letterbox and then a tree. AB then ran after the deceased’s vehicle and observed Mr Cage get out of the vehicle covered in blood. AB gave evidence that she saw Mr Lowcock get out of the Ford Ranger, go around to the other side of the vehicle, and then back to the Santa Fe. [13] It was after that that she observed Mr Lowcock in possession of the firearm. [14]

24. [35]

    Mr Cage took a number of items from the deceased’s vehicle. He took hold of AB’s shirt and began pulling her towards the Santa Fe. AB attempted to pull away from him and gave evidence she said to Mr Cage and Mr Lowcock “I’m not with youse. I want to go, like just let me go.” [15] AB gave evidence that Mr Cage and Mr Lowcock said: “no, you’re coming with us and forced [AB] into the back of the SUV.” [16] Mr Cage and Mr Lowcock both pushed AB towards the vehicle during which time she continued to argue with them, trying to convince them to let her go. [17]

25. [36]

    Mr Cage got into the rear seat of the Santa Fe, pulling AB into the rear seat next to him. Mr Lowcock got into the front passenger seat and Mr Stamp drove the vehicle away from the scene.

26. [37]

    Police arrived at the scene at 2:05pm, by which time it was evident that the deceased had died.

27. [38]

    The accused, having detained AB in the Santa Fe, travelled towards Raymond Terrace. The movements of the vehicle were captured on various CCTV cameras. During that journey, AB was distressed. AB gave evidence that Mr Cage told her: “shut the fuck up or I’ll shoot.” [18]

28. [39]

    Arrangements were made with Adam Garvey to swap from the Santa Fe to his vehicle. It is alleged that this was in an effort to avoid detection by the police. Mr Garvey is a friend of Mr Cage. Soon after, Mr Garvey drove to Raymond Terrace where he picked up AB, Mr Cage and Mr Lowcock. Mr Stamp remained with the Santa Fe which it is alleged that he later destroyed.

29. [40]

    During the journey out of Raymond Terrace, in Mr Garvey’s car, it is alleged that Mr Cage was seated in the back seat next to AB. Sometime during the journey, Mr Cage is alleged to have dismantled the shortened firearm, breaking it into smaller pieces.

30. [41]

    On 1 September 2021 and 3 September 2021, AB participated in recorded interviews with police concerning the events surrounding the death of the deceased.

31. [42]

    During the Crown opening the Crown case on the count of murder against all of the accused was explained in the following manner:

32. [43]

    With respect to Mr Stamp’s liability for murder, noting that Mr Stamp was not present in the deceased’s car when he was shot, the Crown put its case in the following manner:

33. [44]

    After the Crown opening, all parties agreed that the Crown must prove, as an intermediate fact, beyond a reasonable doubt, that it was one of the accused who brought the loaded firearm to the scene for the purpose of robbing the deceased, and that each co-venturer was aware of the existence of the loaded firearm.

34. [45]

    With the concurrence of all parties, the jury will be directed, on extended joint criminal enterprise, in the following manner (MFI 65):

Circumstances relied on by the Crown

1. [46]

   On 4 March 2024, the Crown provided to the Court a list of 14 circumstances which are relied upon as circumstantial evidence to prove the guilt of Mr Stamp in respect of count 1 (MFI 72). Those circumstances are summarised below:

   1. (1)

      Accepting the evidence of Dakota Clarke (Mr Cage’s girlfriend at the time), that she was filmed with a firearm on late 28 August 2021 or early 29 August 2021, and then returned to the company of Mr Cage after that, the Crown contends, that the firearm was available to Mr Cage and his co-venturers.

   2. (2)

      Between 1:06am and 2:44am on 29 August 2021, Mr Stamp, Mr Cage, and Ms Clarke’s phones were all using the Jesmond cell tower and the Crown contends that an inference can be drawn that all three were together and the firearm was therefore available to the accused at that time.

   3. (3)

      Cell tower records place Mr Cage and Mr Stamp’s phones together between 3:00am and 6:00am, noting that by 6:00am Mr Cage and Mr Whelan are texting. The Crown contends this may lead to an inference that Mr Stamp was in close proximity to Mr Cage when Mr Cage was interacting with Mr Whelan.

   4. (4)

      Mr Stamp is present with Mr Cage when Mr Cage makes an 11 minute phone call to Darcee Martin at 7:17am on 29 August 2021. In this call Mr Cage discusses his need for money or drugs, robbing someone and identifies the deceased as a potential target for that robbery.

   5. (5)

      Cell tower records show that Mr Cage and Mr Stamp’s phones are in the same location at 7:20am and 11:13am on 29 August 2021. The Crown contends that this can sustain an inference that Mr Stamp was present when Mr Cage called Ms Martin, indicating that the target for the robbery had changed to the deceased.

   6. (6)

      CCTV footage of a service station at Salt Ash between 11:30am and 11:55am shows three people in a Santa Fe car. These times were corrected during the Crown’s oral submissions to a start time of the trip at 11:20am and the time the Santa Fe left the BP service station which was 11:46am. The Crown contends that these three individuals are the three accused, who attended a “reconnaissance trip” to Salt Ash to discuss the plan for the alleged “drug rip”.

   7. (7)

      The three accused attended Cecilia Close at 12:51pm together in the same vehicle and arrived 29 minutes before the deceased, which the Crown contends, afforded them the opportunity to discuss the alleged “drug rip”.

   8. (8)

      After meeting the deceased (who was driving a Ford Ranger) at Cecilia Close, Mr Stamp, who was driving the Santa Fe, drove Mr Lowcock around the corner to Hideaway Drive to allow the accused to sample the “ice” prior to proceeding with the “drug rip”. The deceased drove Mr Cage and AB around the corner in his vehicle to Hideaway Drive to proceed with the “drug rip”.

   9. (9)

      All the accused entered the Ford Ranger to sample the methylamphetamine, which the Crown contends is consistent with Mr Stamp’s participation in the plan to engage in a “drug rip”. (I observe that there is no evidence that any of the accused were armed with a loaded firearm at this point.)

   10. (10)

       Mr Stamp returned to the Santa Fe with the other two accused immediately before the “drug rip” commenced. The Crown contends this is consistent with participation in a plan that involved Mr Stamp being present and ready to assist as required in the “drug rip”, which involved driving the co-accused and AB from the scene.

   11. (11)

       All three accused fled the scene to avoid detection.

   12. (12)

       All three accused took AB from the scene to avoid detection.

   13. (13)

       Mr Stamp burnt the Santa Fe (after being directed to do so by Mr Cage) and attempted to get rid of items that would connect him and the other accused to the “drug rip” as he left Masonite Road.

   14. (14)

       Mr Stamp, being a user of ice, was aware that the deceased may resist the “drug rip”.

Submissions

1. [47]

   The applicant’s submissions in support of the directed verdict application, focused on four areas:

2. [48]

   I intend to briefly summarise the submissions of the applicant, which have been marked for identification (MFI 74). Mr Krisenthal, on behalf of the applicant, submitted that even at its highest, “the evidence is not high at all”, in establishing an agreement to commit an armed robbery upon the deceased.

3. [49]

   With respect to the alleged agreement to use a loaded firearm to rob the deceased, it is submitted that the evidence taken at its highest, may give rise to an inference that Mr Cage had access to a firearm in the early hours of 29 August 2021, but there is an absence of any evidence as to the possession of any ammunition, let alone that the firearm would be discharged in any possible robbery. The fact that the ammunition was located on 1 September 2021, does not allow for an inference to be made that ammunition was available on 29 August 2021. It is submitted therefore, that the Crown will be unable to prove the facts necessary for the extended joint criminal enterprise, grounding Mr Stamp’s liability for murder.

4. [50]

   Mr Krisenthal submitted that there is no evidence that either Mr Cage or Mr Lowcock (the two accused who were present in the deceased’s vehicle when he was shot), were armed with a firearm when they entered the vehicle. It is submitted that the evidence is to the contrary. AB, the primary Crown witness present at the scene, gave evidence that Mr Cage was not carrying a firearm when he walked past her (after she had been tasered) and entered the deceased’s vehicle.

5. [51]

   AB gave evidence that she had not observed Mr Lowcock in possession of a firearm until after he exited the deceased’s vehicle. AB saw Mr Lowcock exit the rear driver side of the vehicle, approach the driver side door, and lean in, before she saw him in possession of the firearm as he walked towards her.

6. [52]

   Mr Krisenthal further submitted that the evidence taken at its highest, establishes a demand for property from Mr King as opposed to an armed robbery of him. It is not accepted that there is sufficient evidence to conclude that Mr Lowcock introduced the weapon into the vehicle. However, even if that conclusion was open, that occurrence took place after the robbery had been completed and therefore could only be considered as a factor outside the robbery.

7. [53]

   It is submitted that at its highest, the Crown case may be able to prove that Mr Cage was armed with a taser and that therefore a “s 97 robbery” was committed. There is no evidence, however that the applicant contemplated that a loaded firearm would be utilised in the robbery. There is said to be an absence of evidence that there was any agreement by Mr Stamp to join in a robbery of Mr King.

8. [54]

   The Crown’s written submissions (MFI 75) set out the circumstances relied upon against Mr Stamp. The Crown submitted that there is ample evidence upon which a finding of fact can be made that the applicant was aware of a plan to rob the deceased and that the plan involved the use of a loaded shortened firearm.

9. [55]

   The Crown contended that the submissions relied upon in support of the directed verdict application simply set out competing inferences. The applicant has failed to establish that the evidence does not leave open an inference that he was party to an extended joint criminal enterprise.

10. [56]

    With respect to the applicant’s submissions at [31]-[39], the Crown submitted this is not a case of constructive murder. Technical arguments concerning the commencement of the robbery and when the elements of the robbery were satisfied are not relevant.

11. [57]

    The Crown argues that taking the whole of the evidence together, the inference is available that Mr Stamp did have knowledge of the presence of a loaded firearm and sufficient information to contemplate the possibility that the firearm would be discharged. The Crown referred to the circumstances cumulatively, submitting that an inference was open, on the basis of the evidence taken together, that there was a loaded firearm in the Santa Fe and that Mr Stamp had knowledge of its presence. The Crown further argues that in light of the applicant’s drug use and familiarity with the drug scene, he would have understood that it was likely that in robbing the deceased, the accused would meet vigorous resistance and they may need to use a loaded firearm to enforce their will upon him.

Relevant Principles

1. [58]

   The law relating to a direction of a not guilty verdict, is well-settled. They have been summarised in R v XHR [2012] NSWCCA 247 (“XHR”) at [11]-[18] (and have also been affirmed in R v Davis and Quinn (No 4) [2020] NSWSC 1800 (“Davis and Quinn (No 4)” at [5]-[19]).

2. [59]

   In R v Bilick and Starke (1984) 36 SASR 322; 11 A Crim R 452 the Court dealt with a no case application in respect of a circumstantial case. In respect of that King CJ stated at 337:

3. [60]

   In Doney v R [1990] HCA 51; 171 CLR 207 the High Court considered whether a trial judge has the power to direct a jury to enter a verdict where even if evidence is sufficient to sustain a conviction, a guilty verdict would be unsafe and unsatisfactory. At 212 the Court stated there is:

4. [61]

   The Court continued at 214-215:

5. [62]

   In XHR at [15] Beazley JA (Hall and G Campbell JJ agreeing) commented, with respect to the decision in Doney at [15]:

6. [63]

   In R v R (1989) 18 NSWLR 74 (“R”), Gleeson CJ cited with approval the following statement of principle in Attorney-General's Reference (No 1 of 1983) [1983] 2 VR 410 at 415-416:

7. [64]

   R was also cited with approval in JMR v R (1991) 57 A Crim R 39 (“JMR”) for the proposition that a judge cannot direct an acquittal in a case that turns on circumstantial evidence at 44 per Lee CJ at CL (Carruthers and Finlay JJ agreeing):

8. [65]

   In XHR the Court also considered Doney, R and JMR and strongly affirmed the propositions in Bilick and Starke at [18]:

9. [66]

   R v PL [2012] NSWCCA 31 concerned the entry of a directed verdict where the evidence was circumstantial. Bathurst CJ (Simpson J (as her Honour then was) and Adamson J agreeing) confirmed that a judge cannot enter a verdict of acquittal if there is evidence in support of the Crown case on which the accused could be convicted even though a reasonable hypothesis consistent with innocence can be formulated at [32]:

10. [67]

    In R v Kalache [1999] NSWSC 556 the accused, Mr Kalache, was with a group of others involved in an assault on the deceased, Mr Sleiman, wherein, one of the members of the group stabbed the deceased. Sperling J held that as there was no evidence of the accused being aware of the existence of the knife prior to the stabbing, the use of the knife was outside the scope of common purpose at [13]:

11. [68]

    In relying on Kalache, the Crown submitted that for an application for a directed verdict to succeed, the applicant would have to establish that there is no evidence that the use of the firearm was in his contemplation.

12. [69]

    The Crown case is a circumstantial one. It is a rare case where a jury will be directed to return a not guilty verdict, in a case that relies either wholly or partly on circumstantial evidence. A jury is normally directed that it must decide which facts are established on the evidence, and then consider all of the facts or circumstances taken as a whole, to determine whether the Crown has proved its case beyond reasonable doubt.

13. [70]

    In the present case, the Crown accepts, that in proving the extended joint criminal enterprise, it must prove beyond reasonable doubt, an intermediate fact, namely that the firearm used to shoot Mr King, was brought to the scene by one of the co-accused with the intention of using it to rob the deceased, and that the applicant had knowledge that the loaded firearm was present.

14. [71]

    Put another way, the Crown case is that there was a joint criminal enterprise to rob Mr King whilst armed; that one of the participants would be armed with a dangerous weapon; that the armed participant voluntarily discharged the firearm; and, that the discharge of the firearm was a contingency that Mr Stamp had in mind in joining and participating in the criminal enterprise to rob.

15. [72]

    An iPhone 8 belonging to Ms Clarke, was seized by police and forensically examined. The Cellebrite extraction revealed a 45 second video (Exhibit C9), which was received on the phone via the Snapchat application on 29 August 2021 at 1:55:08am. [24] Given that the phone was in a locked state at the time, the video could not have been recorded on that handset. Rather, the video was received on the phone via Snapchat. [25]

16. [73]

    The video depicts Ms Clarke seated in a motor vehicle holding a firearm. She exits the vehicle, holding the firearm and walks up and down the street.

17. [74]

    Two images depicting Ms Clarke in possession of the firearm at the time that the video was taken (Exhibit C16), were also generated in Snapchat [26] . Image 1 was created and stored in the “DCIM folder” of the iPhone 8 belonging to Ms Clarke on 29 August 2021 at 2:25:45 am. [27]

18. [75]

    Mr Elton Potgieter, a ballistics expert, conducted a comparison between the firearm depicted in the video and images and the firearm located in a Corolla vehicle that was associated with Mr Cage (“the Corolla”), and seized by police on 1 September 2021 (Exhibit C52). Mr Potgieter gave evidence that a comparison between the two firearms revealed a number of similarities. There were no features of the firearm depicted in the video and images that are inconsistent with the exhibit firearm examined by the witness. [28]

19. [76]

    For the purpose of this application I proceed on the basis that the firearm that was in the possession of Ms Clarke in the early hours of 29 August 2021, is the firearm that was located and seized by police on 1 September 2021. I also proceed on the basis that it was the firearm used to shoot Mr King.

20. [77]

    The only direct evidence as to the ownership of that firearm comes from Ms Clarke. She gave evidence that she met with the deceased in the early hours of 29 August 2021 to obtain “ice” from him, and that it was while he was making up her deal and serving another customer, who had pulled up in a car behind her, that she saw the firearm in the deceased’s car, and he allowed her to take possession of it. Ms Clarke gave evidence that she returned the firearm to the deceased before leaving. Her evidence was as follows:

21. [78]

    The Crown was granted leave to cross examine Ms Clarke pursuant to s 38 of the Evidence Act 1995 (NSW). Six propositions were put to the witness, each one denied by her:

22. [79]

    The Crown case is that the evidence of Ms Clarke about the provenance of the firearm should be rejected as there is circumstantial evidence contradicting her account that she met with the deceased in a street in the early hours of 29 August 2021, to obtain illicit drugs from him. By way of example, Mr Adrian Leong, a specialist with a Digital Forensics unit of the New South Wales Police Force, gave evidence that there was only one journey made by the deceased’s Ford Ranger on 29 August 2021. The “start time” was 1:09:49pm. The “finish time” was 2:16:22pm. [33]

23. [80]

    An available inference, taking the Crown case at its highest, is that Ms Clarke is not truthful in her evidence that she obtained the firearm with which she was videoed, from Mr King and returned it to him. Rejection of that evidence does not explain how the firearm was sourced or its movements in the early hours of 29 August 2021.

24. [81]

    However, given the relationship between Ms Clarke and Mr Cage, there is an available inference that the firearm was available to Mr Cage in the early hours of 29 August 2021 leading up to the shooting.

25. [82]

    It is no part of my function at this stage to assess the cogency of the facts underpinning such an inference. It is sufficient to state that such an inference is available.

26. [83]

    The Crown relies upon cell tower records in support of the contention that the applicant was in the company of Mr Cage and Ms Clarke on 29 August 2021 from 1:06am until 2:44am and in the company of Mr Cage between 3:00am until at least 6:00am and that at that time the firearm was available to both Mr Cage and Mr Stamp.

27. [84]

    The evidence taken at its highest is that the mobile phones associated with Mr Cage and the applicant were both using the Jesmond cell tower between 1:06am and 2:44am, for times that overlapped with Ms Clarke and Mr Whelan’s phones being in that area. The cell tower records also placed Mr Stamp and Mr Cage’s phones in the same location in the Newcastle area from 3:00am to at least 6:00am on 29 August 2021.

28. [85]

    It may be accepted that taken at its highest, the evidence establishes that the applicant and Mr Cage spent time in each other’s company in the early hours of 29 August 2021. There is no evidence that the existence of the firearm was known to the applicant during this period, let alone any evidence from which an inference is available, that the applicant was aware of, or discussed a plan with Mr Cage, to rob the deceased using a loaded firearm.

29. [86]

    The assertion that an inference is available that the applicant was aware of the existence of the firearm in the early hours of 29 August 2021 is simply not available on the evidence.

30. [87]

    I accept however, that the circumstances relied upon by the Crown, in the applicant’s case, are not limited to those I have already identified.

31. [88]

    On 29 August 2021 at 7:17am, Mr Cage had a telephone conversation with Darcee Martin. The conversation took place for 11 minutes, although only extracts of it were relied upon and admitted into evidence (Exhibit C29).

32. [89]

    During this conversation Mr Cage is asked by Ms Martin what he is doing. He responds: “we’re going to try and find some money to get some G”. G is a reference to the illicit drug GHB. Mr Cage asks Ms Martin: “Yeah, can you get me someone to mug?”, to which she responds by laughing and asking, “who?”.

33. [90]

    Mr Cage answers: “I don’t know”. He then asks “Oi, do you know DK out at the Bay?” The reference to DK is a reference to David King. Immediately following this reference Mr Cage and Ms Martin continue with casual conversation until Mr Cage is again asked: “what are you doing today?”, responding: “just goin’ to try and get this money for this G”.

34. [91]

    The unedited duration of this telephone call is 11 minutes. Four minutes into the conversation, Mr Cage makes the references to robbing someone and to “DK at the Bay”. The applicant enters the call fleetingly in the eleventh minute, saying: “Hi”, in response to Ms Martin saying: “Hi Tyson”. The recording itself reveals that at that time the applicant appears to be engaged in a separate conversation: (“What do you mean I’ll come and visit ya (indecipherable) Dakota”).

35. [92]

    During this telephone call, other people can be heard in the background, either present in person or speaking on another device. There is no evidence that the applicant was party to the conversation at the time that Mr Cage made references to robbing someone and to “DK at the Bay”. There is no evidence that he was listening to Mr Cage’s conversation. Indeed, the recording suggests that the applicant, at the very same time, was engaged in a separate conversation, in the background, with another, either in person or in a conversation over a phone.

36. [93]

    There was nothing to suggest Mr Stamp heard that part of the conversation that referenced a robbery or to “DK at the Bay”.

37. [94]

    At 11:13am, on the same day, Mr Cage engaged in a further telephone conversation with Ms Martin (Exhibit C30). During this conversation Mr Cage told Ms Martin, “Um we’ve actually swapped rips. We’re doin’ another rip”. A “rip”, for present purposes, is a reference to ripping someone off or robbing someone of their drugs.

38. [95]

    It is not accurate to state that the applicant was present with Mr Cage during this telephone conversation. There is no evidence that he was present, listening to, or engaged in this conversation. In fact, at the very beginning of the conversation Mr Cage states: “Tyson’s not here”.

39. [96]

    I do not accept the submission that it is open to infer that the applicant, by his presence during the first conversation, was aware of a plan to rob Mr King using a loaded firearm, let alone a participant in such an agreement.

40. [97]

    I observe that there is no evidence of any discussion between the applicant and the co-accused of robbing anybody, let alone using a loaded firearm to rob the deceased.

41. [98]

    Furthermore, there is no evidence that the applicant was aware that the person who was to supply the drug in this drug transaction was to be Mr King. The evidence of AB is that she deliberately kept the identity of each participant in the drug transaction secret from the other. [34]

42. [99]

    A further circumstance relied upon by the Crown is that the applicant travelled to a service station at Salt Ash with his co-accused between 11:20am to 11:46am on 29 August 2021. CCTV stills show three people in the vehicle. [35] The footage shows the applicant to be a passenger on the trip to the service station and the driver on the way back. Nothing was purchased at the service station. The applicant sent a text to an associate, Bradley Allwood, at 12:19pm that he was with Mr Cage.

43. [100]

    The Crown has referred to this trip as a “reconnaissance trip”, an opportunity to “refine the plan and consider what could occur”. For an inference to be available that this trip was indeed a “reconnaissance trip”, the location of the drug transaction must have been decided prior to 11:20 am.

44. [101]

    The evidence about who decided on Paul’s Corner as the location for the transaction and the time that that decision crystallised with any certainty, is not clear and the evidence as to the timing is inconsistent.

45. [102]

    As the table suggests, the evidence about who decided on the location of Paul’s Corner is subject to some uncertainty. The best that can be said is that the first text message communication referring to Paul’s Corner at all, appears to be a at 12:24pm, a communication between AB and Mr Cage.

46. [103]

    Assuming that there is evidence to support an inference that the first trip to Salt Ash (between 11:20am-11:46am) was a “reconnaissance trip”, at its highest, it is capable of establishing no more than an agreement to steal the deceased’s drugs and (possibly) money. It does not support an inference that the applicant was aware of the existence of a loaded firearm or that he contemplated the discharge of a firearm during any “rip”.

47. [104]

    The applicant drove the Santa Fe into Cecilia Close and was present in that vehicle with the co-accused for a period of time before Mr King attended. Even accepting that the firearm was in that vehicle at this time, it is not open on the evidence to infer that the applicant was aware of its existence.

48. [105]

    There is no evidence of anyone seeing a firearm in the Santa Fe and no evidence as to where it was located in that vehicle. I pause to note, that when seized by Police on 1 September 2021, it was located in a black Nautica bag together with other items.

49. [106]

    AB did not see a firearm until after the deceased’s vehicle collided with the tree. It was only then that she saw Mr Lowcock exit the rear driver’s door, approach the driver’s door and lean in, and then walk towards her, carrying the firearm.

50. [107]

    With respect to AB’s observations of the firearm, she gave the following evidence:

51. [108]

    and:

52. [109]

    The only evidence is that Mr Cage was not in possession of a firearm when he sat in the front passenger seat and made demands of Mr King for drugs and money. The only other person in the vehicle at the time of the shooting was Mr Lowcock. There is no evidence that he was in possession of a firearm before the collision.

53. [110]

    The Crown submitted that the absence of evidence from AB that Mr Lowcock was in possession of the firearm at the time that he entered the deceased’s vehicle, does not establish that he was unarmed. The Crown argues that AB had been tasered, and given the size of the Ford Ranger, may simply have not seen Mr Lowcock with firearm.

54. [111]

    That submission does not sit well with a submission made by the Crown, in another context, describing the firearm as a “large and readily identifiable object”.

55. [112]

    In any case, I am not persuaded that there is any evidence that the applicant was aware of the existence of a firearm at Cecilia Close or in Hideaway Drive, let alone that he contemplated the discharge of a firearm as within the scope of a robbery of the deceased.

56. [113]

    The applicant was not in the deceased’s car at the time the deceased was shot. The fact that he became aware of the firearm after the shooting, is not evidence from which an inference is available that he was a participant to the extended joint criminal enterprise. Nor is the “post-offence conduct” relied upon by the Crown as consciousness of guilt, evidence from which it is open to infer, in the absence of other evidence, that the applicant was a participant in the extended joint criminal enterprise.

57. [114]

    Furthermore, there is no evidence that the applicant was aware that the firearm was loaded. There must be evidence capable of proving beyond reasonable doubt that during the course of the armed robbery, the firearm was discharged and that its discharge was both within the scope of the joint criminal enterprise, and that Mr Stamp contemplated that, in carrying out the enterprise, the gun might be used with the intention of causing grievous bodily harm.

58. [115]

    There is no evidence from which it can be inferred that the applicant was aware that the firearm was loaded. There is no evidence that he was aware of the existence of an ammunition belt. Although the police located an ammunition belt in the Corolla during the execution of the search warrant on 1 September 2021, there is no evidence that the ammunition belt was present in the Santa Fe on 29 August 2021. There is no forensic evidence connecting the applicant to the firearm or the ammunition belt. A mixed DNA profile was found on a swab taken from the buckle of the ammunition belt. Mr King and Mr Cage could not be excluded as contributors.

59. [116]

    The Crown also argues that given the applicant was a drug user, he would have been aware that the deceased, a drug dealer, may offer significant resistance to being “ripped”. The evidence establishes that the applicant was a user of “ice” during the relevant period. However, there is no evidence that he was heavily involved in the drug “scene”. There is no evidence that he had ever dealt with or knew Mr King. There is no evidence that he was aware of Mr King’s reputation as a drug dealer. There is no evidence that the applicant was aware that the person who was going to supply the drug was Mr King. As indicated above, the evidence of AB is that she kept the identity of the supplier secret.

60. [117]

    In those circumstances, it is difficult to see how this applicant contemplated significant resistance being offered, supporting an inference that the scope of the agreement to which he was a party, included the use of a loaded firearm.

61. [118]

    To succeed on this application, it is not sufficient to establish that the Crown case against the applicant is weak, or that a verdict of guilty would be unreasonable. The applicant must establish that it is not open on the evidence to infer that he was party to a joint criminal enterprise to rob Mr King with a loaded firearm foreseeing the possibility that the firearm would be discharged with at least an intention to inflict grievous bodily harm.

62. [119]

    Having considered the circumstances in their totality, and taking the evidence at its highest, I am not satisfied that such an inference is open. I cannot conclude that an inference is open on the evidence that the applicant was aware of the existence of a loaded firearm or that he contemplated that the discharge of the firearm was a possibility.

63. [120]

    Accordingly, I grant the application and will direct the jury to return a verdict of not guilty on count 1 in the case of Mr Stamp.