R v Droudis (No. 14)

1. [1]

   JOHNSON J: The Accused, Amirah Droudis, is charged that, on 21 April 2013, at Werrington, she murdered a 30-year old woman, about whom more will be said shortly.

2. [2]

   The Accused pleaded not guilty to the charge and her trial commenced on 22 August 2016. The trial proceeded as a Judge-alone trial as both the Accused and the Crown agreed to the trial proceeding without a jury: s.132(2) Criminal Procedure Act 1986.

3. [3]

   The deceased was the former wife of Man Haron Monis (“Monis”). As mentioned, she was 30 years old at the time of her death. She and Monis married in 2003 and there are two young sons of their marriage.

4. [4]

   It is the Crown case that Monis planned the murder of his former wife and then put the plan into effect with his then partner, the Accused, carrying out the fatal attack.

5. [5]

   It is common knowledge that Monis died in the early hours of Tuesday, 16 December 2014 in the Lindt Café, Martin Place, Sydney. It is, of course, not the function of this criminal trial to consider the events at the Lindt Café on 15 and 16 December 2014. That is the task of the State Coroner presiding at an inquest.

6. [6]

   What may be said, however, is that if Monis was still alive, he would be seated next to the Accused in the dock facing trial for his alleged involvement in the murder of his former wife. Monis had been charged in November 2013 with being an accessory before and after the fact to the murder.

Identification of Persons in Judgment

1. [7]

   I will not identify the deceased in this judgment as to do so is likely to identify the two children: s.15A Children (Criminal Proceedings) Act 1987. For the same reason, I will not identify the names of the parents of the deceased. Non-publication orders were made under the Court Suppression and Non-publication Orders Act 2010 prohibiting publication of the names of the deceased and her parents.

2. [8]

   These steps were taken by the Court to give effect to the statutory protection to which the children are entitled under s.15A Children (Criminal Proceedings) Act 1987, and so as to maximise the prospect that the children can lead normal lives not linked to the circumstances in which their mother died. As will be seen, the desire to have custody of these two boys lies at the heart of this murder trial. However, it is important that the boys’ mother, as the victim of this crime, not be deprived of human identity. I will refer to her as Helen Lee which, of course, is not her real name.

Issues in the Trial

1. [9]

   Helen Lee was attacked in the stairwell of an apartment block at 14-20 Parkes Road, Werrington in the late afternoon of 21 April 2013. Her attacker inflicted 18 stab wounds to her upper back, right anterior chest wall and her right and left arms. Her attacker then doused Helen Lee with petrol and set her alight using matches. The forensic evidence establishes that Helen Lee was already dead from the knife wounds before being set alight.

2. [10]

   The Crown submitted, and the defence accepted, that there was overwhelming evidence that Monis planned and put into effect the murder of his former wife.

3. [11]

   The Crown submitted, and the defence accepted, that the evidence demonstrated clearly that the killer was a female and that the killer intended to kill Helen Lee.

4. [12]

   The central issue in the trial is whether the Crown has proved beyond reasonable doubt that the killer was the Accused.

The Conduct of the Trial

1. [13]

   The trial was conducted in a most efficient way by the legal representatives for the parties.

2. [14]

   A substantial volume of documentary, photographic, video and audio evidence was tendered at the trial. The parties limited the witnesses called to those who were essential to the determination of the issues in the trial.

3. [15]

   The factual narrative contained in this judgment is almost entirely undisputed. The question to be addressed is what conclusions should be reached by reference to this evidence, taken with the oral evidence of witnesses called at the trial.

4. [16]

   The testimony of witnesses whose evidence came under challenge in the trial will be considered expressly in this judgment.

Structure of Judgment

1. [17]

   This judgment will be divided broadly into three parts:

Principles of Law, Directions and Warnings

1. [18]

   Section 133(2) Criminal Procedure Act 1986 requires the Court to state the principles of law to be applied, as well as findings of fact which are made. Section 133(3) states that where the law requires a warning to be given to a jury, the Court must take the warning into account in dealing with the matter. I will approach these statutory obligations in accordance with statements made in Filippou v The Queen [2015] HCA 29; 256 CLR 47 at 52 [6], 66-67 [52].

2. [19]

   In order to prove the charge of murder, it is necessary for the Crown to prove beyond reasonable doubt:

3. [20]

   The trial was conducted by the parties upon the basis that the irresistible inference to be drawn from the ferocity of the knife attack, followed by the setting alight of the victim, was that the attacker intended to kill Helen Lee. This is an accurate and realistic approach in this trial. The only reasonable inference to be drawn is that the attacker intended to kill Helen Lee.

4. [21]

   The critical element in issue is whether the Crown has proved that the Accused did the acts which caused Helen Lee’s death.

5. [22]

   None of the relevant defences or partial defences (such as self-defence, provocation or substantial impairment) have been raised in this case. It has not been submitted that there is any basis upon which the Court could find the Accused not guilty of murder but guilty of manslaughter. Nor does such a scenario arise in this trial so that the Court should address that topic, although it was not raised by the parties.

6. [23]

   The starting point in the trial is that the Accused is entitled to the presumption of innocence. She is not required to prove her innocence. The Accused is presumed to be innocent of the crime charged unless the evidence led in the trial satisfies me to the appropriate standard that she is guilty of murder.

7. [24]

   The prosecution bears the onus of proof, from the beginning to the end of the trial, to establish the guilt of the Accused. The Accused bears no onus and is not required to prove anything in the trial.

8. [25]

   The standard of proof is beyond reasonable doubt. Those words have their ordinary English meaning. It is not enough for the Crown to show suspicion of guilt or to demonstrate that the Accused is probably guilty.

9. [26]

   The matters that the Crown needs to establish beyond reasonable doubt are the essential elements of the offence. In the circumstances of this trial, the critical question is whether the Crown has proved beyond reasonable doubt that the Accused was the killer.

10. [27]

    However, the Crown is not required to prove the truth and reliability of every disputed fact nor to answer every question that might be posed concerning the evidence in the case.

11. [28]

    It is necessary to consider the evidence in the trial impartially and dispassionately. The Court must not let sympathy or emotion affect its judgment.

12. [29]

    Certain evidence was admitted in this trial which emphasises the need for the Court to proceed without emotion in its assessment of the evidence. This was evidence of certain activities of the Accused which was admitted for both tendency and non-tendency purposes: R v Droudis (No. 13) [2016] NSWSC 1350. In that judgment, I observed at various points that it was necessary to consider the evidence without emotion, with the reasons to be provided by the Court in giving its verdict to demonstrate that approach: R v Droudis (No. 13) at [92], [173] and [178].

13. [30]

    In the same manner as required of a jury, I will approach the assessment of evidence in this trial in a dispassionate manner and without emotion or sympathy and without any element of prejudice. I will keep this direction in mind particularly when considering the evidence of prior conduct of the Accused relied upon by the Crown for tendency and non-tendency purposes, in accordance with the rulings in R v Droudis (No. 13).

14. [31]

    There is no direct evidence that the Accused killed Helen Lee. The Crown seeks to demonstrate that the Accused killed Helen Lee by inference from the primary facts it contends it has proven.

15. [32]

    The Crown case is circumstantial. This means that the Crown must first demonstrate that the inference or conclusion that it was the Accused who killed Helen Lee is a reasonable one to draw from the facts established by the evidence. The Crown must then prove that the only reasonable inference or conclusion that can be drawn from the consideration of all the established facts, viewed as a whole, is that it was the Accused who killed Helen Lee.

16. [33]

    If there is any other reasonable inference or conclusion open on the facts that is inconsistent with that conclusion, then the Crown’s circumstantial case fails and the Accused should be acquitted.

17. [34]

    In assessing the Crown’s case, I must consider all of the circumstances established by the evidence, and weigh them up in deciding whether there is an inference consistent with innocence reasonably open on the evidence: The Queen v Hillier [2007] HCA 13; 228 CLR 618 at 637 [46]. A circumstantial case is not to be considered in a piecemeal fashion: The Queen v Hillier at 638 [48].

18. [35]

    The Crown submits that in this case, there are only two indispensable facts or circumstances that the Crown must prove as part of its circumstantial case:

19. [36]

    I accept the Crown submission that these are the only two indispensable facts or circumstances which form part of the Crown’s circumstantial case. To this limited extent, the Crown case is a “link in the chain” case. These intermediate facts or circumstances are so crucial to the process of reasoning that each must be established beyond reasonable doubt: Shepherd v The Queen [1990] HCA 56; 170 CLR 573 at 579.

20. [37]

    I mentioned earlier (at [10]-[11]) that neither party in this trial has submitted that the Court would be other than satisfied beyond reasonable doubt as to these two facts or circumstances. Of course, it remains a matter for the Court, as the tribunal of fact, to determine whether it is so satisfied on the evidence adduced in the trial.

21. [38]

    Apart from these two indispensable facts or circumstances, the Crown case is otherwise a “strand in the cable” case, so that the individual circumstances relied upon by the Crown need not be established beyond reasonable doubt: Shepherd v The Queen at 579.

22. [39]

    Circumstantial evidence is not necessarily less reliable than direct evidence. In some cases, it can be more convincing. Clearly, this will depend upon the evidence in the particular trial. In El Hassan v R [2007] NSWCCA 148, Hunt AJA (with the agreement of Latham J and myself) said at [27]:

23. [40]

    It is appropriate to keep in mind, in approaching a circumstantial evidence case, what was said by the High Court of Australia (French CJ, Kiefel, Bell, Keane and Gordon JJ) in The Queen v Baden-Clay [2016] HCA 35; 90 ALJR 1013 at 1020-1021 [46]-[47] (footnotes omitted):

24. [41]

    The distinction between drawing an inference from proven facts and engaging in speculation was emphasised in Lane v R [2013] NSWCCA 317; 241 A Crim R 321 at 348 [109]-[110] (Bathurst CJ, Simpson and Adamson JJ):

25. [42]

    The Crown relies upon two areas of evidence as demonstrating consciousness of guilt on the part of the Accused:

26. [43]

    Evidence of consciousness of guilt is not capable of establishing guilt by itself. It is tendered effectively as corroborative evidence.

27. [44]

    Post-offence conduct may be capable of constituting evidence of consciousness of guilt in different ways. This may arise from lies told by an accused person or from other conduct such as flight, destruction of evidence or creation of a false account.

28. [45]

    Here, the Crown says that the Accused acted and spoke, in these two areas, in a manner which involved lies and the preparedness to tell lies about topics which were central to her guilt of the murder of Helen Lee.

29. [46]

    Before using evidence in these two categories as evidence corroborating the guilt of the Accused, I must be satisfied of two things:

30. [47]

    I should exercise caution in using evidence of consciousness of guilt because it is often difficult to know how or why an innocent person may act in particular circumstances, and it is necessary to consider any other possible explanation for the statements of the Accused which are said to be motivated by a consciousness of guilt.

31. [48]

    I have allowed certain evidence to be used for tendency purposes in the trial: R v Droudis (No. 13) at [35]-[38], [121]-[168], [175]-[180].

32. [49]

    The material which has been admitted for tendency purposes (and non-tendency purposes) is in evidence at the trial because the Crown says that there is a pattern of behaviour that reveals that the Accused had a tendency to act in ways at the behest of Monis, including engagement in socially and morally reprehensible acts. The Crown argues that the suggested tendency of the Accused to act in these ways bears significantly upon the question whether the Accused acted in a reprehensible way, at the behest of Monis, by killing Helen Lee.

33. [50]

    The evidence suggesting that the Accused had that tendency can only be used, in the way the Crown seeks that it be used, to make two findings beyond reasonable doubt. The first finding is a conclusion beyond reasonable doubt that one or more of those acts occurred. In this case, there is no dispute that the Accused acted in the various ways relied upon by the Crown as tendency evidence.

34. [51]

    Accordingly, the second aspect is of particular significance. It is necessary for the Court to ask whether, from the act or acts that are proved, the Court can conclude beyond reasonable doubt that the Accused had the tendency that the Crown alleges. If the Court cannot draw that conclusion beyond reasonable doubt, it must put aside any suggestion that the Accused had the tendency alleged.

35. [52]

    If the Court is satisfied beyond reasonable doubt that the Accused committed the acts relied upon as tendency evidence, and is likewise satisfied that the Accused had the tendency to act in a particular way and to have a particular state of mind as alleged by the Crown, the Court may use the fact of that tendency or state of mind in considering whether the Accused committed the offence charged.

36. [53]

    It is necessary to keep in mind that this is just one part of the evidence relied upon by the Crown, and it ought be given such weight as the Court considers it deserves in the context of the evidence admitted at the trial.

37. [54]

    The evidence of other acts must not be used in an impermissible way. It would be completely wrong to reason that, because the Accused had committed a crime or other acts of misconduct, she is therefore generally a person of bad character and for that reason must have committed the offence charged. The Accused cannot be punished for other conduct attributed to her by finding her guilty of the charge of murder contained in the indictment. That is not the purpose of the evidence being placed before the Court and reasoning of this type is not permissible.

38. [55]

    The Court cannot use the evidence for tendency purposes, unless the Court accepts the Crown’s argument that it discloses a tendency, and therefore makes it more likely that the Accused committed the offence charged against her.

39. [56]

    The evidence led by the Crown to prove that the Accused had a tendency to act in a particular way, and to have a particular state of mind, is separate from the particular allegation in the indictment. The Court must not substitute the evidence led by the Crown to prove that the Accused had that tendency for the specific allegation of murder contained in the indictment. The Court is concerned with the particular and precise occasion alleged in the charge.

40. [57]

    In considering the evidence admitted for tendency (and non-tendency) purposes in R v Droudis (No. 13), particular care is needed to ensure that the evidence is confined to its proper role and given appropriate weight only, given the portions of the evidence which indicate criminal or improper conduct on the part of the Accused on other occasions.

41. [58]

    In addition, care is required to guard against an emotional response to the evidence (see [28]-[30] above).

42. [59]

    The Accused did not give evidence in response to the Crown case. The Accused was entitled to give evidence, but was under no obligation to do so. The onus lies upon the Crown from first to last in the trial. The Accused is entitled to say nothing if she so chooses.

43. [60]

    The Accused’s decision not to give evidence cannot be used against her in any way during the course of the Court’s deliberations. No inference may be drawn adverse to the Accused in this respect. The decision of the Accused not to give evidence cannot be used to fill any gaps that might be thought to exist in the evidence tendered by the Crown, nor can it be used in any way as strengthening the Crown case or in assisting the Crown to prove its case beyond reasonable doubt.

44. [61]

    The Court must not speculate about what might have been said in evidence if the Accused had given evidence at the trial.

45. [62]

    The solicitor for the Accused filed a notice of alibi on 20 June 2016 which stated that the Accused was at her parents’ address at Belmore at the time of the killing (Exhibit DB).

46. [63]

    The Accused has called witnesses intended to show that, at the time of the offence on 21 April 2013, she was somewhere else (at Belmore) and therefore could not have committed the offence (at Werrington).

47. [64]

    When an accused person puts forward an alibi, the burden of proving the Accused’s guilt continues to rest on the Crown. If the Crown fails to satisfy the Court beyond reasonable doubt that the alibi evidence should be rejected, then the Accused should be acquitted. The Crown must disprove the alibi.

48. [65]

    The Crown must establish beyond reasonable doubt that the Accused was at the apartment block at 14-20 Parkes Avenue, Werrington at about 4.25 pm on 21 April 2013. The Crown cannot do so if there is a reasonable possibility that the Accused was at Belmore at that time, as asserted by the alibi notice. The Crown must therefore remove or eliminate any reasonable possibility that the Accused was at Belmore at the relevant time, and also persuade the Court beyond reasonable doubt that, on the evidence on which the Crown relies, the Accused was at the Werrington apartment block at that time. If the Crown fails to remove or eliminate any reasonable possibility, the Accused should be acquitted.

49. [66]

    If the Crown satisfies the Court beyond reasonable doubt that the alibi evidence should be rejected, it does not follow that the Court would necessarily convict the Accused. In other words, it must not be assumed that because the alibi fails that the Accused is guilty. The Court must still be satisfied beyond reasonable doubt, upon the evidence as a whole, that the Crown has made out its case against the Accused before a guilty verdict can be returned.

50. [67]

    In this trial, Ms Sandra Trabuio was called as an expert witness in the Crown case. In addition, a report of Dr Mark Perlin was tendered, without objection, in the Accused’s case.

51. [68]

    An expert witness is a person who has specialised knowledge based on that person’s training, study or experience. A witness with such specialised knowledge may express an opinion on matters within his or her particular area of expertise. In this case, both Ms Trabuio and Dr Perlin gave expert oral or written evidence on matters concerning DNA analysis and associated matters.

52. [69]

    The value of an expert opinion is very much dependent on the reliability and accuracy of the material which the expert used to reach his or her opinion. It is also dependent upon the degree to which the expert analysed the material upon which the opinion was based, and the skill and experience brought to bear in formulating the opinion given. Experts can differ in the level and degree of their experience, training and study, yet each can still be an expert qualified to give an opinion where that opinion is based on that witness' specialised knowledge.

53. [70]

    The expert evidence before the Court in this trial was adduced to assist in determining the question whether the presence or absence of the Accused’s DNA on a partly burnt match stick found at the crime scene was a neutral factor in the trial or, as argued for the Accused, it pointed towards the attacker being someone other than the Accused.

54. [71]

    In this case, there is no conflict between the evidence of the two witnesses. The evidence of Ms Trabuio and Dr Perlin has not been challenged and is not inherently unbelievable. The issue for consideration is what conclusions ought be reached, by reference to their evidence, concerning the absence of the Accused’s DNA on the partly burnt match stick.

55. [72]

    It remains a matter for the Court to consider the expert evidence, in the context of all of the evidence adduced in the trial for the purpose of reaching a conclusion as to the significance of the evidence in the trial.

56. [73]

    A joint application was made by the parties for the Court to undertake a view of the premises at 14-20 Parkes Avenue, Werrington and this occurred on 18 August 2016, shortly before the commencement of the trial. The transcript of the view was tendered at the trial (Exhibit B).

57. [74]

    The view of the Werrington premises, and its surrounds, assisted the Court to understand the evidence. The observations made by the Court on the view are to be taken into account as part of the overall evidence upon which the Court will decide whether the Crown has proved the guilt of the Accused beyond reasonable doubt.

58. [75]

    During the trial, the Court admitted certain evidence of Sonia Conciatore concerning statements made to her by her close friend, Helen Lee, about the Accused and Monis: R v Droudis (No. 7) [2016] NSWSC 1274.

59. [76]

    The effect of the ruling in R v Droudis (No. 7) was that, for the purpose of s.65(2) Evidence Act 1995, the hearsay rule did not apply to a particular representation arising from the evidence of Ms Conciatore. The effect of that ruling was that Ms Conciatore was permitted to give evidence concerning what Helen Lee had said to her about an incident about two weeks before 21 April 2013, where there was said to have been an argument between the Accused and Helen Lee about Helen Lee’s sons, with the Accused allegedly saying that she wanted the boys to live with Monis.

60. [77]

    In approaching the use to be made of the evidence of Ms Conciatore concerning what Helen Lee had said to her, it is appropriate to keep in mind that the Accused has had no opportunity to test the evidence, in the sense that the account given by Helen Lee to Ms Conciatore cannot be meaningfully tested. In these circumstances, the Court should proceed with caution in considering the evidence of what had been said in assessing the reliability of that evidence.

61. [78]

    As will be seen, there is no evidence in this trial from persons who were present at the scene of the crime which identifies the Accused as the attacker. There is evidence from a number of persons of the use of photographic identification procedures, in which persons were selected with varying degrees of certainty by the witnesses.

62. [79]

    The Crown submitted that there was no need for an identification warning in these circumstances as there had been no positive identification evidence and Senior Counsel for the Accused agreed with this approach (T1029).

63. [80]

    I accept the approach advanced by the parties, but would make a number of observations concerning identification of this type, which I will keep in mind when assessing that evidence later in this judgment.

64. [81]

    Each witness was shown (head and shoulders) photographs of 20 females by means of either computer display or hard-copy display.

65. [82]

    As Stephen J observed in Alexander v The Queen [1981] HCA 17; 145 CLR 395 at 409, the accuracy of any identification of a stranger, seen only once, is likely to be affected by the fallibility of human perception and memory. His Honour noted that, when identification is attempted with the aid of photographs, there are introduced peculiar difficulties due to the various ways in which photographic representations differ from nature, including their two dimensional and static quality.

66. [83]

    In Festa v The Queen [2001] HCA 72; 208 CLR 593, Kirby J at 639 [154] observed that an identification parade is a preferable means of attempted identification as it “affords a wider range of identifying factors and a more natural circumstance for perceiving the entire person of the suspect rather than head and shoulders photographs”.

67. [84]

    In the context of voice identification, in Bulejcik v The Queen [1996] HCA 50; 185 CLR 375, McHugh and Gummow JJ observed at 406 [20] that “Identification evidence is often unreliable evidence because human perception and recollection are prone to error”. Their Honours observed at 406 [21]:

68. [85]

    It has also been noted that there may be little, or no, correlation between the confidence with which a witness gives evidence of identification and the reliability and accuracy of their evidence: R v Simmons (No. 7) [2015] NSWSC 574 at [29].

69. [86]

    I will bear these considerations in mind when considering the evidence of photographic identification procedures in this trial.

Has the Crown Proved Beyond Reasonable Doubt that Monis Planned and Put Into Effect the Murder of his Former Wife?

1. [87]

   As mentioned earlier, the Crown submitted that the Court would readily find beyond reasonable doubt that Monis had planned and put into effect the murder of Helen Lee. Senior Counsel for the Accused accepted that the evidence established that Monis had acted in this way. In making this submission, it was made clear that the defence accepted these matters by reference to the strength of the Crown evidence on these aspects, and not by way of any knowledge or admission on the part of the Accused.

2. [88]

   It is a matter for the Court, as the tribunal of fact in the trial, to determine whether it is satisfied beyond reasonable doubt that Monis planned and put into effect the murder of Helen Lee. As noted above (at [35]-[36]), this aspect of the Crown case is an indispensable circumstance, the existence of which the Crown must prove beyond reasonable doubt. I have kept in mind, in considering the first question, that there is no one speaking for Monis in this trial and the Court should consider his position carefully by reference to the evidence and the onus and standard of proof.

3. [89]

   Consideration of this topic will also permit findings to be made as to the nature and extent of the relationship between Monis and the Accused.

4. [90]

   The evidence in the trial disclosed some of the history of Monis both before and after he came to Australia.

5. [91]

   Monis was born Mohammad Hassan Manteghi on 19 May 1964 in Iran (Exhibit C, paragraph 54).

6. [92]

   Monis came to Australia in about 1996 (T602). He went by a number of names between 1996 and December 2014. For present purposes, it is sufficient to note that he went by the names “Man Haron Monis” (from November 2006 to December 2014) whilst using the first name “Michael” for some purposes, and also the name “Sheikh Haron” from 2007 to about 2010 (Exhibit A, Tab 5).

7. [93]

   Between about 2000 and 2008, Monis worked as a so-called spiritual healer and clairvoyant, advertising his services in local and community (including ethnic community) newspapers.

8. [94]

   It is apparent that a number of women met Monis in the course of his spiritual healing business. Several of them had sexual relationships with Monis.

9. [95]

   In early 2003, Helen Lee met Monis after she responded to an advertisement in a community newspaper with respect to his spiritual healing services. In February 2003, they became engaged. In August 2003, Monis and Helen Lee married in a religious ceremony. Sons were born of the marriage in 2004 and 2008.

10. [96]

    The Accused was born Anastasia Droudis in July 1979 of Greek Orthodox background.

11. [97]

    It appears that Monis first came into contact with the Accused’s family in about June 2003, when the Accused’s mother, Soula Droudis, made an appointment to see Monis in his spiritual healing business (Exhibit A, Tab 4).

12. [98]

    Monis and the Accused commenced an intimate relationship by at least 2006, and their relationship continued until 21 April 2013 and beyond (Exhibit C, paragraphs 8-9).

13. [99]

    As a result of her association with Monis, the Accused converted to Islam and changed her first name from Anastasia to Amirah in July 2008.

14. [100]

    The Accused has a daughter from an earlier relationship who was born in about 2001. The daughter of the Accused will not be identified in this judgment: s.15A Children (Criminal Proceedings) Act 1987. Also, as a result of the Accused’s relationship with Monis, her daughter converted to Islam as well.

15. [101]

    It was through his work as a spiritual healer and clairvoyant that Monis also met Female M, to whom he became engaged, and who died of natural causes in May 2012. For a period, Monis was maintaining simultaneous relationships with Helen Lee, the Accused and Female M (Exhibit C, paragraph 55). More will be said about Female M in the course of the judgment.

16. [102]

    From late 2007, Monis adopted the persona of “Sheikh Haron” to espouse his religious and political views, which may be fairly described as extremist in nature. He utilised, in this respect, amongst other things, the Sheikh Haron website (Exhibits BB, BC, BD and BE).

17. [103]

    Monis used a number of women as participants in videos, with extremist content, apparently made for posting on the Sheikh Haron website. Not all videos of this type were actually posted on the website.

18. [104]

    In 2008-2009, the Accused appeared in 11 videos which had been scripted by Monis (Exhibits BB and BC). The content of these videos was extreme and offensive in nature and sheds considerable light upon the beliefs and attitudes of Monis at that time.

19. [105]

    The 11 videos recorded by the Accused for the Sheikh Haron website were made in the period April 2008 to December 2008 (Exhibit BB). As noted above, not all the videos were posted to the Sheikh Haron website, but the Accused would have expected, in each case, that the video which she made could be posted publicly on the website and YouTube.

20. [106]

    In each of these 11 videos, the Accused appeared wearing a black niqab, so that her eyes only were visible. In the course of lengthy presentations, scripted by Monis, the Accused praised Osama Bin Laden, delivered a fatwa against Present-elect Barack Obama for apostasy (abandoning his Muslim faith for Christianity), expressed happiness about the September 2001 terrorist attacks in the United States of America, the Bali bombings in October 2002 and the Holocaust, described the Bali bombers as martyrs, called upon people to join the army of Islam and warned the then Prime Minister, Kevin Rudd, that Australians would be attacked and killed by Muslims. In each of these videos, the Accused is seen reading Monis’ scripts with feeling and passion.

21. [107]

    Both the contents of the 11 videos and the material posted on the Sheikh Haron website referred to the Accused as “Sister Amirah”, a frequent spokesperson for Monis (Exhibit BD).

22. [108]

    The Sheikh Haron website referred to the Accused (as “Sister Amirah”) in the following examples:

23. [109]

    Monis’ thought processes and beliefs were illustrated in this period by a letter dated 12 June 2008 which he sent (under the guise of Sheikh Haron) to then Senator Barack Obama, five months before the 2008 Presidential election. In this letter, Monis castigated Barack Obama for “hiding” his religion, warning him, “You will be apostate by denying your religion” and advising him to choose “the right path” and not “the satanic tactic”, counselling him to “be careful to pass this test of God successfully” (Exhibit BD, Annexure P).

24. [110]

    On 26 November 2008, the Accused (again dressed in a black niqab) participated in the ninth video in which she referred back to Monis’ letter of 12 June 2008 and stated that “Unfortunately Barack Obama kept denouncing his religion in order to achieve the position”, and stating that Monis’ letter was available on the Sheikh Haron website.

25. [111]

    The Accused continued, saying “Sheikh Haron has issued a fatwa against Barack Obama”, then reading the terms of the fatwa. The Accused stated that it was “an obligation upon every Muslim who is able to treat Barack Hussein Obama … as an apostate according to Sharia law” to do so and any Muslim who acted in this way “will be rewarded by Allah”. The Accused’s message continued at considerable length, culminating in the following (Exhibit BC, page 21):

26. [112]

    In the video of this message, the concluding words urging viewers to “Do it” or “Finish it” were accompanied by hand movements by the Accused in the form of stabbing motions (Exhibit BE).

27. [113]

    This detail is provided to assist an understanding of what Monis was saying and doing in June 2008, and what the Accused was saying and doing on film (at his behest) in November 2008. This illustration provides considerable insight into the dynamics of the relationship between Monis and the Accused at that time, involving her repeatedly participating in very strong video statements written by Monis. There is nothing to suggest that the Accused held beliefs of this type, let alone displayed a willingness to act on them in this way, before she had met and formed a close relationship with Monis.

28. [114]

    The Accused was not the only female companion of Monis who appeared in his Sheikh Haron videos. An unidentified Chinese woman, also wearing a black niqab, appeared in a video. Female P, described as “Sister Zahra” appeared in one video as did Female M, described as “Sister Fatimah” and Female B, described as “Sister Husna” (Exhibits 25 and 26), with each of them wearing a black niqab. In each case, I accept that the script was prepared by Monis so that the beliefs and thoughts contained in the presentations represented the thought processes of Monis.

29. [115]

    It should be said that the delivery of female speakers (other than the Accused) in these videos, was flat and indicative of a bare reading of a prepared script.

30. [116]

    In the case of the Accused, her delivery in the 11 different presentations was far from flat, and was accompanied by feeling and, at times, movement. The Accused’s forceful and dramatic delivery may be contrasted with the flat and expressionless delivery of other women who participated in these videos.

31. [117]

    On 16 and 27 June 2008, Monis and the Accused attended outside the Channel 7 premises in Martin Place, Sydney to undertake a protest. Monis had developed a grievance concerning an item on terrorism he had seen on the “Sunrise” program. It is clear from the videos of events on these days (Exhibit BF) that Monis filmed the Accused’s activities on one day and the Accused’s filmed Monis’ activities on the other day. The Accused was wearing a black niqab which covered her face, except for her eyes.

32. [118]

    The Sheikh Haron website had advertised the fact that a protest was to occur on 16 June 2008, described as “Soldier Sister Amirah’s protest in Sydney” (Exhibit BD, Annexure S). A notice posted on the Sheikh Haron website (no doubt written by Monis) announced the Accused’s protest on 16 June 2008, including the following (Exhibit BD, Annexure S):

33. [119]

    The Martin Place protests by Monis and the Accused in June 2008 serve to illustrate further the nature and depth of the relationship between them, and the Accused’s willingness to uncritically adopt and espouse Monis’ beliefs.

34. [120]

    At about the same time, Monis and the Accused embarked upon a course of conduct where written or face-to-face contact was made with families of deceased Australian servicemen who had been killed in Iraq or Afghanistan. The following description of these activities, between May 2008 and July 2009, is drawn from a Statement of Agreed Facts (Exhibit EE).

35. [121]

    On or about 4 May 2008, two letters from Monis, in similar terms, were posted to the immediate family of an Australian soldier who had died whilst serving in Afghanistan, Lance Corporal Jason Marks. The letters were posted to his widow, Cassandra Marks, and his father, Paul Marks.

36. [122]

    On or about 6 May 2008, a further letter from Monis was posted to Cassandra Marks. A copy of this letter was posted on the Sheikh Haron website.

37. [123]

    In the above letters from Monis to the family of the late Lance Corporal Marks, it was suggested variously that:

38. [124]

    On or about 6 May 2008, the Accused, as Sister Amirah, participated in a video filmed by Monis (fourth video, Exhibits BB, BC and BE). The Accused was wearing a black niqab. In that video, the Accused referred to the 4 May 2008 letter that Sheikh Haron had sent to Cassandra Marks. She then delivered what she described as her own message to Cassandra Marks, which echoed the sentiments expressed in Sheikh Haron’s letter. The Accused, variously, compared Lance Corporal Marks to a Nazi soldier under Hitler, said that she did not feel sorry for him and described him as a murderer. The Accused’s video message to Cassandra Marks was placed on a DVD that was posted to Cassandra Marks. The video was also posted on YouTube and an announcement relating to the video was made on the Sheikh Haron website.

39. [125]

    On or about 29 November 2008, the Accused, as Sister Amirah, telephoned Madeline Fussell, the mother of an Australian soldier who had recently died whilst serving in Afghanistan, Lieutenant Michael Fussell. The Accused said words to the effect “I am a member of the public, you don’t know me, I would like to send you a card, could I have your address”. Ms Fussell declined to give her address. However, her husband, Kenneth Fussell, was listed in the telephone directory. On or about 3 December 2008, a letter in the name of Sheikh Haron was posted to Kenneth Fussell. The letter was also posted on the Sheikh Haron website under a heading “Letter of Mufti Sheikh Haron to Family of Australian Soldier Killed in Afghanistan, Michael Fussell”. The letter noted that “Sister Amirah” had called and spoken to Mr Fussell’s family.

40. [126]

    On or about 12 January 2009, the Accused, as Sister Amirah, telephoned the home of Felix Sher and Yvonne Sher, the parents of an Australian soldier who had recently died whilst serving in Afghanistan, Private Gregory Sher. Felix Sher’s nephew, Darren Milner, answered the phone and spoke to the Accused. The Accused said that her name was “Sister Amirah” and she wanted to send a letter of condolence.

41. [127]

    On or about 22 January 2009, a letter in the name of Sheikh Haron was posted to Mr Sher. The letter was posted on the Sheikh Haron website under a heading “Why should we call pig, a hero?”. The letter noted that Sister Amirah had called to offer condolences.

42. [128]

    Between about 24 March and 27 March 2009, the Accused, as Sister Amirah, telephoned the South Lake Macquarie RSL Club on four occasions. She tried to obtain the home address of the parents of Corporal Matthew Hopkins, an Australian soldier who had recently died whilst serving in Afghanistan. Following Corporal Hopkins’ death, a media statement was released by the RSL which indicated that Corporal Hopkins was a member of the South Lake Macquarie RSL Club. The RSL Club refused to provide her with these details.

43. [129]

    On or about 26 March 2009, two copies of a letter in the name of Sheikh Haron were posted to the parents of Corporal Matthew Hopkins, care of the South Lake Macquarie RSL Club. The letter to Corporal Hopkins’ father was also posted on the Sheikh Haron website. The letter and the heading on the website asserted “Matthew Hopkins was a big criminal”.

44. [130]

    On or about 24 March 2009, the Accused, as Sister Amirah, telephoned Breeanna Till, the widow of Sergeant Brett Till, an Australian soldier who had recently died whilst serving in Afghanistan. The Accused asked when and where Sergeant Till’s funeral was going to be held. Ms Till asked the Accused who she was and the Accused replied “I am just a member of the public who is concerned about what is happening in Afghanistan”. Ms Till advised the Accused of the funeral details as requested. Ms Till described the call she received as “almost scripted” and that the Accused spoke in a “purposeful” way.

45. [131]

    On or about 27 March 2009, a letter in the name of Sheikh Haron was posted to Ms Kerrie Barclay, the mother-in-law of Sergeant Brett Till. The letter was addressed to Susan and Leigh Staden, the parents of Sergeant Till, with the names of Ms Bree Till, Sergeant Till’s widow, and Ms Kerrie Barclay and her husband, Peter Barclay, included at the bottom of the letter after “cc”. The letter was also posted on the Sheikh Haron website under a heading which included the words “Aren’t you aware that Brett Till was a criminal?”.

46. [132]

    On or about 29 March 2009, the Accused, as Sister Amirah, phoned Kerrie Barclay. The Accused asked for confirmation that Sergeant Till’s funeral was going to be held at Woronora and Ms Barclay confirmed that it was. Ms Barclay asked the Accused who she was and the Accused replied “I’m an Australian citizen, member of the Australian public”. The Accused said that it was a public funeral and she had a right to be there. Ms Barclay described the Accused in that phone call as sounding “very deliberate with her words, as though she were reading from a script”.

47. [133]

    On or about 31 March 2009, the Accused, as Sister Amirah, attended the funeral of Sergeant Brett Till dressed in a black niqab. After the service, the Accused approached Breeanna Till and introduced herself as “Sister Amirah” and indicated that she was a representative of Sheikh Haron. The Accused said that she was there to deliver a message and said words to the effect that Ms Till’s husband was a murderer. The Accused was carrying a package which was intercepted by an Army officer before the Accused had the opportunity to hand it to Ms Till. The package contained copies of the 27 March 2009 letter from Sheikh Haron mentioned above.

48. [134]

    On or about 18 July 2009, the Accused, as Sister Amirah, telephoned Joan Senger, the mother of Craig Senger who was employed as a Trade Commissioner to Austrade stationed in Jakarta. At the time of the Accused’s telephone call, Mr Senger was missing following the terrorist bombing on the JW Marriott Hotel in Jakarta on 17 July 2009. Mr Senger was confirmed dead a short time later. The Accused said “I hope they find your son and I hope that he is safe”. Ms Senger asked who she was and the Accused identified herself as “Amirah”.

49. [135]

    Ms Senger described the telephone call as having been strange on account of there being no emotion in the voice of the Accused and that it “seemed like she was reading from a script”. Further, Ms Senger stated that there was a gap between her saying something and the Accused replying, similar to an overseas call.

50. [136]

    On or about 21 July 2009, a letter in the name of Sheikh Heron was posted to Ms Senger. The letter referred to the telephone call on 18 July 2009 from Sister Amirah and noted that Craig Senger was now dead. The letter was also posted on the Sheikh Haron website. The letter suggests that the victims of the attack (including Mr Senger) were responsible, saying that every citizen of Australia was to blame for the JW Marriott Hotel attack by remaining silent in the face of oppression by the Australian government. The letter concluded by saying “We should condemn the Australian nation first, then others”.

51. [137]

    On or about 19 July 2009, the Accused, as Sister Amirah, telephoned Andrew Ranaudo, the uncle of an Australian soldier who had recently died whilst serving in Afghanistan, Private Benjamin Ranaudo. The following conversation occurred:

52. [138]

    On or about 22 July 2009, a letter in the name of Sheikh Haron was posted to Mr Ranaudo. The letter was also posted on the Sheikh Haron website. The letter noted that Sister Amirah had called Mr Ranaudo’s home on 19 July 2009 to “offer her condolences”. The letter suggested that the Australian Army was a criminal organisation that killed civilians, including children, and that everyone in the Australian Army, including his late nephew, was a criminal.

53. [139]

    On 20 October 2009, arising from these communications with the families of deceased servicemen, Monis was charged with using a postal service to cause offence contrary to s.471.12 Criminal Code 1995 (Cth). In July 2010, the Accused was charged with similar offences arising from her involvement in those communications.

54. [140]

    On 10 November 2009, the Accused filmed Monis outside the Downing Centre following an appearance by him with respect to the Commonwealth charges. The Accused filmed members of the media and handed out leaflets in support of Monis (Exhibit BF).

55. [141]

    In the course of a telephone conversation with her cousin on 28 July 2013, on the eve of her and Monis appearing in Court to answer the Commonwealth charges, the Accused was heard to say (about the forthcoming hearing) “We are proud” and “We’re excited, we’re looking forward to it” and “We are strong. We are united …” (Exhibit EA, pages 15, 22 and 23).

56. [142]

    On 6 September 2013, after Monis and the Accused had pleaded guilty to the Commonwealth offences, the Accused filmed Monis outside the Downing Centre (Exhibit CT). The Accused smiled as she filmed Monis whilst he spoke to the media defending the letters which had been sent to families of deceased servicemen.

57. [143]

    It is important, at this point, to say something about the role of this evidence in the trial. The evidence of these activities sheds considerable light upon the dynamics of the unusual relationship between Monis and the Accused. There is no sign in the evidence that the Accused held political or religious views of this type prior to her meeting Monis. It is apparent that the Accused was greatly influenced by Monis’ political and religious views, which she was prepared to adopt and publicly espouse. Her actions involved her acting at the behest of Monis, in a number of different ways and over an extended period of time. There is nothing in the evidence which suggests that the Accused had abandoned these views and beliefs by the time of the killing on 21 April 2013. Indeed, things were said and done by the Accused after 21 April 2013 which point to her maintaining these views and beliefs.

58. [144]

    The Crown alleges that Monis wanted his former wife to be killed and that the Accused was prepared to do this both to cement her very close relationship with him and to further their plan to form a single family unit with Monis, his sons, the Accused and her daughter.

59. [145]

    The willingness of the Accused to act in these ways, at the behest of Monis, is relevant to the motive and state of mind of the Accused as at 21 April 2013, and her preparedness or tendency to conduct herself in extreme ways to please Monis.

60. [146]

    Between 9 February 2009 and 7 March 2009, Monis sent letters to the then Prime Minister, Kevin Rudd, and the then Premier of Victoria, John Brumby, concerning what Monis perceived as being the significance of the devastating Victorian bushfires (Exhibit DX). In effect, Monis asserted that God had used the Victorian bushfires as a means of punishing Australians for their participation in the wars in Afghanistan and Iraq, and in anti-terrorist activities. In the letter to Premier Brumby dated 12 February 2009, Monis said:

61. [147]

    In a letter of 7 March 2009 to Prime Minister Rudd, Monis said:

62. [148]

    Entries on the Sheikh Haron website serve to emphasise Monis’ beliefs relating to the Victorian bushfires and God’s use of fire (Exhibit EL). By reference to his own letters, Monis made extravagant and extreme statements under headings such as “God is a terrorist”, “Australia’s 9/11”, “Australians deserve to be burned in the fire hell, the fire of Bush is nothing!” and “Australians will be punished!”.

63. [149]

    The Crown points to this material as illustrating Monis’ view concerning the use of fire in a manner which the Crown seeks to link to the use of fire in the killing of Helen Lee.

64. [150]

    In early 2013, Monis was in a poor financial position. His bank accounts revealed small amounts only (T793-795).

65. [151]

    The evidence indicates that Monis had ceased his activities as a spiritual healer and clairvoyant by 2010. He was in receipt of an Austudy payment between January and March 2010, and again between June 2010 and February 2011. He received a Newstart allowance for the periods 5 March 2010 to 10 June 2010, and from April 2011 to 15 November 2013 ( T795).

66. [152]

    On 18 June 2011, Helen Lee ended her relationship with Monis (Exhibit C, paragraph 61).

67. [153]

    Within days of their separation, Monis reported an alleged indecent assault of his eldest son, by Helen Lee’s father. These matters were investigated, but the allegations could not be substantiated and no action was taken. The investigating detective determined that the allegations against the maternal grandfather were false and had been made by Monis with the intention of securing custody of the children. I am likewise satisfied that Monis’ allegations were false.

68. [154]

    On or about 2 July 2011, Monis asked Helen Lee if he could have access to the children for the weekend every fortnight. She would not allow this, but agreed to allow Monis to visit with the children in a public place at a McDonald’s store. Monis did subsequently visit with the children at a McDonald’s store on a supervised basis.

69. [155]

    On 22 July 2011, Helen Lee reported a domestic violence incident between herself and Monis which occurred on 20 July 2011 in the car park at McDonald’s at Hinchinbrook. During this face-to-face meeting, an argument occurred between her and Monis in relation to custody and access of their two sons. During this argument, she alleged that Monis became abusive and stated “If I can’t see the kids more than I am now, you’re going to pay, even if I have to shoot you”. Monis was later charged with an offence under s.13 Crimes (Domestic and Personal Violence) Act 2007. A provisional apprehended violence order was made pending the hearing. The charge was ultimately dismissed on 30 May 2012 following a hearing at the Campbelltown Local Court. The effect of the court proceedings, however, was that Monis was deprived of seeing his children from 20 July 2011 until after interim orders for supervised access were made in the Federal Magistrates Court on 27 October 2011.

70. [156]

    On 9 August 2011, Monis commenced proceedings in the Federal Magistrates Court seeking full custody of the children. Affidavits were prepared by both parties in furtherance of those proceedings. The affidavits prepared by Helen Lee and her parents in 2011 and 2012 provided a history of the domestic relationship and conflict, during which she claimed to have been dominated, controlled and duped by Monis.

71. [157]

    In Monis’ affidavits from 2011 and 2012, he cited the alleged sexual abuse of his son as his principal reason for seeking sole custody. Monis also alleged that his wife had assaulted their youngest son. Both parties filed Notices of Child Abuse or Family Violence with respect to each other. Various interim Family Law orders were made with respect to these proceedings.

72. [158]

    In Monis’ initiating affidavit for the custody proceedings, he stated that he then lived in a two-bedroom unit in Blacktown, and that the children would share one room and he would live in another. Monis stated that the landlord would not charge him rent until the children reached 18 years of age. This reference to Monis’ landlord was a reference to Female M, who owned a two-bedroom apartment in Blacktown. Monis had bail conditions in his Commonwealth criminal proceedings to reside at Female M’s Blacktown address, and had also registered this as his address with the Roads and Traffic Authority.

73. [159]

    There was no mention of the Accused in any of Monis’ affidavits in the custody proceedings during 2011 and 2012.

74. [160]

    On 25 October 2011, interim consent orders were made in the custody proceedings which allowed Monis to have access with the children at Lollipops Play Centre in Wetherill Park, supervised by Helen Lee’s mother.

75. [161]

    On 20 February 2012, interim orders were made by consent in the custody proceedings for Monis to have unsupervised access at the Lollipops Play Centre. The orders provided for the maternal grandmother (or Helen Lee’s adult nominee) to attend at the handover.

76. [162]

    On 10 May 2012, a family consultant’s report dated 7 May 2012 (ordered by the Court in the custody proceedings) was released to the parties. The report recommended that Helen Lee have parental responsibility with Monis to have visitation rights.

77. [163]

    On 26 May 2012, Female M, to whom Monis was then engaged, died of natural causes in her Blacktown unit.

78. [164]

    On 5 July 2012, Monis sent a letter to Magistrate Baumann, the presiding Federal Magistrate, complaining about the proceedings.

79. [165]

    At the top of the first page of the letter were the words “In the name of God” (Exhibit CI). Monis stated that he wanted to withdraw his case from the Federal Magistrates Court and to “file in God’s court”. Monis concluded the letter as follows:

80. [166]

    Soon after Monis wrote this extraordinary letter, a number of significant steps were taken which shed light on the relationship between Monis and the Accused.

81. [167]

    On 10 July 2012, the Accused appointed Monis as the enduring guardian of her daughter in the event that she was unable to care for her daughter for any reason (T601).

82. [168]

    On 20 July 2012, the Accused made a will nominating Monis as her executor and the sole beneficiary of her estate (T601).

83. [169]

    On 27 July 2012, the custody proceedings were listed for hearing in the Federal Magistrates Court. There being no appearance for Monis, the Court vacated the hearing date and the proceedings were adjourned to 24 August 2012 for an undefended hearing, with Helen Lee to file and serve a Minute of the final orders which she sought.

84. [170]

    Between 5 August 2012 and 7 April 2013, child access visits involving Monis and his two sons took place at regular intervals. A regular feature of these access visits was that the Accused and her 12-year old daughter would also attend.

85. [171]

    Monis videoed the child access visits between August 2012 and April 2013 (Exhibits BG and CE).

86. [172]

    Accordingly, the Court has had an opportunity to view and hear directly the interaction which took place between the Accused, Monis and their respective children as captured in these videos. It was common ground between the parties that Monis told his sons that the Accused’s name was “Mumi” (pronounced “Mummy”) with the boys being encouraged to call her that. As will be seen, Helen Lee became upset at this and complained to Monis about it.

87. [173]

    During the first access visit on 5 August 2012, the Accused acted warmly towards Monis’ sons, saying at one stage to the older boy (then eight years old) “Can I give you one kiss, cause you are so good” and she kissed the boy on the cheek. A little later, the Accused kissed the other boy (then four years old) on the cheek. Monis held out his hand towards the Accused and said to the younger boy “Kiss, kiss” and the little boy kissed the Accused on the cheek, with the Accused responding “That’s a big kiss, thank you”.

88. [174]

    On the second access visit, on 12 August 2012, the Accused and her daughter approached the boys with Monis saying “Mummy and [daughter’s name] … come to see you”. A little later, whilst a game was being played, Monis said to his sons “Mummy’s in the middle then” and a little later “Now, give it to Mummy”. Thereafter, Monis referred to the Accused repeatedly as “Mummy” when speaking to his sons. At one point when a game was being played, the older son called out to the Accused “Mummy, Mummy”. A little later, the Accused asked the younger boy to smile and he did so with the Accused saying to him “That’s my boy smiling, good boy” and kissing the little boy on the cheek. Soon after the Accused hugged the younger boy and said “I love you”.

89. [175]

    On the third child access visit at Lollipops Play Centre on 19 August 2012, the Accused and her daughter were again in attendance. At one point, Monis’ younger son used the word “Mummy” with reference to the Accused. Later on in the visit, the Accused said to the other boy “OK, Mummy’s going to have a coffee now so I’m going to sit and have a coffee. Anyone want to have a rest and sit with me?”. When the time came to leave, the Accused kissed the older boy goodbye.

90. [176]

    Final orders were made by the Federal Magistrates Court on 24 August 2012 in accordance with the Minute of Proposed Orders filed by Helen Lee. These orders granted her full custody with Monis being given visitation access every second Sunday between 10.00 am and 4.00 pm. The orders stated that the designated location for the exchange of custody was at Monis’ residence. The order stated that Monis was required to provide written notice of his address to his former wife. By letter dated 4 October 2012, Monis nominated the address as Unit 43/14-20 Parkes Avenue, Werrington.

91. [177]

    Monis signed an agreement to sublease the Werrington unit on 27 May 2012 from a friend, Female P. However, he did not reside at this location in any full-time capacity. The residents of the Werrington complex reported seeing Monis there infrequently, and had formed the opinion that he was there only on certain weekends. From October 2012, Monis used the Werrington address for custody exchange of the children every second Sunday.

92. [178]

    Throughout this period, Monis resided predominantly with the Accused and her daughter at an address in Croydon.

93. [179]

    On 21 October 2012, the first child access visit took place with the handover of the children occurring at the Werrington unit. Once again, Monis videoed the visit. The Accused and her daughter took part in the visit and the outing which took place during the day. The Accused played with the three children in the park opposite the Werrington unit block.

94. [180]

    On 4 November 2012, a further child access visit took place in which the Accused and her daughter were once again in attendance. The group went to Brighton-Le-Sands where, at one point, Monis filmed the Accused rubbing sun cream on to the back of his older son.

95. [181]

    A further access visit took place on 18 November 2012 with the pick-up and return of the children occurring at the Werrington unit. The Accused and her daughter attended once again and the group went on an outing to Ripples Swimming Pool at St Marys. At one point, Monis’ younger son called out “Mummy”, and the Accused told him he was a brave boy and that she was very proud of him because he was so scared. A little later, the Accused was filming Monis in the pool with his younger son. The Accused stopped filming when told to do so by Monis. Soon after, the elder boy referred to the Accused as “Mummy”. Whilst still at the swimming pool, the Accused was holding the younger son and asked him if he was warm. Monis said “Oh, very nice. You love Mummy?”. The little boy nodded and the Accused said “I love you too” and kissed him.

96. [182]

    Later in the afternoon of 18 November 2012, when back at the Werrington unit, the video indicated that Monis, his two sons and Female C were present. Female C told police investigators that she had been called by Monis to the Werrington unit not long before she attended. She was present there when Helen Lee came to pick them up. Female C considered that Monis had invited her to attend so that Helen Lee would see him with her (Female C).

97. [183]

    Monis had telephoned Female C at about 3.00 pm on 18 November 2012 inviting her to come to his unit to meet his children (Exhibit C, paragraphs 82-85). Female C attended the unit and met the two boys. Monis told Female C that the children’s grandmother was coming to pick them up and he asked her to open the door so that the children could leave. Female C opened the door and both the mother and grandmother of the boys were waiting. The boys departed and soon after Female C left. Monis had told her that he had to go and meet a friend.

98. [184]

    This brief appearance by Female C is the only occasion upon which a female, other than the Accused, appeared in any videos that Monis took of the child access visits.

99. [185]

    After the boys had been collected from Werrington on the afternoon of 18 November 2012, Monis and Helen Lee exchanged text messages in which Helen Lee complained about Female C’s presence at the unit. Monis’ text messages to his former wife included the following (Exhibit C, paragraph 85):

100. [186]

     I do not consider that the limited attendance by Female C on this occasion evidenced any deeper relationship between her and Monis which bears upon the issues to be determined in this trial. The likely explanation for Monis’ sudden invitation for her to attend that afternoon was to irritate Helen Lee.

101. [187]

     A further child access visit occurred at the Werrington unit on 2 December 2012. The boys entered the unit and Monis told them that there was a “surprise” which would make them happy. Monis told the boys to check the unit balcony and the balcony opened revealing the Accused and her daughter. The Accused gave each boy a belt as a gift. A little later, Monis was seen on the bunk beds with the two boys, with the Accused filming. She ceased filming at the direction of Monis. The group proceeded on an outing and are seen with animals and, at one point, on an amusement ride.

102. [188]

     As the child access visits were fortnightly, the next scheduled visit was thought to be on 16 December 2012. It was the evidence of Jayesh Goundar (Helen Lee’s then boyfriend), that Monis had cancelled a child access visit on at least one occasion (T333). I am satisfied that no child access visit took place on 16 December 2012. If it had, Monis would have followed his invariable practice of videoing at least parts of the visit. The absence of such a video confirms the fact that no visit took place on that day, probably because Monis had cancelled it.

103. [189]

     The effect of this finding is that there is direct evidence that the Accused and her daughter participated in every child access visit which took place between 5 August 2012 and 7 April 2013.

104. [190]

     The next child access visit took place at the Werrington unit on 30 December 2012. Christmas decorations are visible in the video recording and the children are excited at what lies ahead. Monis frequently referred to the Accused as “Mummy” in the presence of the children. Presents are distributed amongst the group and the children refer to the Accused as “Mummy”. At one point whilst the group are on the unit balcony eating at a table, the younger son says “I love you” to the Accused, referring to her as “Mummy”, and the Accused replies “I love you too”. The Accused participated in the distribution of presents. The Accused gives the younger boy a guitar as a present, with Monis saying as the present is unwrapped “Oh, what is this, open it and see what is this present of Mummy”. Monis tells the boys that other presents were “Mummy’s choice”, with the Accused saying “I went to the shops and I chose this all by myself” and with Monis saying “Thank you Mummy”. Whilst the younger boy played with a toy, he calls out to “Mum” and “Dadda”.

105. [191]

     A by-product of the Accused’s close relationship with Monis, manifested as it was by her constant involvement in access visits from August 2012, was that there was a level of direct and indirect contact and communication between the Accused and Helen Lee. The Crown submits that activities of Monis and the Accused, particularly in the early months of 2013, were intended to place pressure upon, if not intimidate, Helen Lee and her parents.

106. [192]

     The next child access visit occurred on 13 January 2013 at the Werrington unit. The group, including the Accused and her daughter, departed Werrington in Monis’ Jeep and travelled to the home of Helen Lee’s parents before moving onto the Ripples Swimming Pool at St Marys.

107. [193]

     On this occasion, Monis, the Accused, her daughter and the two boys drove to the residence of Helen Lee’s parents in the company of two other males on motorcycles, purportedly to collect clothing belonging to Monis. These males were members of the Mt Druitt Chapter of the Rebels Outlaw Motorcycle Gang (“OMCG”), about which more will be said later in the judgment. The two Rebels OMCG members had gone with Monis “to do standover tactics on Man’s ex” (Exhibit AT, paragraph 26). Gary Clifford (about whom more will be said shortly) considered that these men “wouldn’t have done it for nothing” and that Monis “would have to have paid” them.

108. [194]

     Helen Lee’s mother was concerned and contacted the police who attended a short time later. Helen Lee returned to the premises whilst police were there and demanded that action be taken in relation to the incident. No criminal offences were identified by the police, but the other parties were informed that they were not welcome back at the premises.

109. [195]

     On the afternoon of 13 January 2013, Helen Lee attended to collect the children from Monis’ Werrington unit, accompanied by Jayesh Goundar. Monis became upset that Mr Goundar was present and asked that he not come to the unit.

110. [196]

     An argument occurred between Monis, Helen Lee and Mr Goundar. What was said is picked up on the video being recorded by Monis at that time. Monis told Mr Goundar that he was not to come to the unit because the court order said that the mother was to come. I observe that the order did not prohibit Mr Goundar from accompanying Helen Lee. During the ensuing argument, Helen Lee asked Monis not to bring bikie friends to her house, a reference to the incident earlier that day.

111. [197]

     Mr Goundar gave evidence about the incident at the Werrington unit block on the afternoon of 13 January 2013 (T327-329). He said that Helen Lee had told him about the incident involving “two bikies” accompanying Monis outside her parents’ home earlier that day, an incident that made her “really angry”. Mr Goundar said that he accompanied her to Werrington later that afternoon to “have a word” with Monis to the effect that what had happened earlier in the day should not happen again. After viewing the extract from the video taken on the afternoon of 13 January 2013, Mr Goundar said Helen Lee was “very scared” of Monis and that he (Monis) was “unpredictable”. Mr Goundar had been with her for about 17 months and she had once told him that Monis “would kill her” (T329).

112. [198]

     After the events of 13 January 2013, Mr Goundar did not accompany Helen Lee to Monis’ unit again. He always remained in the motor vehicle outside. It will be seen that this is what happened on 21 April 2013, the day of the killing.

113. [199]

     I accept the Crown submission that the actions of Monis on 13 January 2013 towards Mr Goundar were intended to discourage him from accompanying Helen Lee up the staircase to the door of Monis’ unit on future occasions, when the children were to be picked up after an access visit. This was said to point towards Monis’ plan to kill his former wife on an occasion when she came alone to his unit to pick up the boys, an event which came to pass on 21 April 2013.

114. [200]

     The next child access visit took place at the Werrington unit on 27 January 2013. The boys entered the unit and a table was set for a birthday party for Monis’ younger son who had just turned five. The boys asked where “Mum” was and Monis said that “Mummy” and her daughter were there. The Accused helped to cut the birthday cake. At Monis’ request, the Accused’s daughter read a birthday card which said that it is from the other children and “Mummy”.

115. [201]

     On 27 January 2013, the Accused made two “000” calls to the police on behalf of Monis (Exhibits AI, AJ and AK). I am satisfied that the Accused complained in one of these “000” calls about an event which had not happened. I infer that the Accused was becoming actively involved on Monis’ side in activities intended to generate friction with Helen Lee. This conclusion is fortified by SMS messages from Helen Lee to Monis in which she complained about the Accused’s activities with the boys.

116. [202]

     On the evening of 27 January 2013, Helen Lee sent a text message to Monis in the following terms (Exhibit BX):

117. [203]

     Monis responded by text soon after (Exhibit BX):

118. [204]

     Helen Lee replied by text to that message (Exhibit BX):

119. [205]

     Monis responded by text (Exhibit BX):

120. [206]

     Further text messages were exchanged between Monis and Helen Lee that evening on the same subject (Exhibit BX). It is apparent that Helen Lee was expressing concern at the level of involvement and direction on the part of the Accused in the life of the two boys. Further, her unhappiness on these matters was being communicated to Monis and no doubt by him to the Accused.

121. [207]

     The next child access visit commenced at the Werrington unit on 10 February 2013. The group travelled to the Penrith Swimming Pool where they had a barbeque. At one point, Monis asked the younger boy “Do you love Mummy?” and the boy replied “Yeah”. The Accused said “I love you too”. Monis said “Do you love the food that Mummy cook, is delicious yummy”. When Monis and the boys separated from the Accused and her daughter, the Accused said “I love you”.

122. [208]

     The next child access visit commenced at the Werrington unit on 24 February 2013. Monis told the boys that “Mummy has bought watermelon”. One of the boys asked “Where is Mummy?” with Monis replying “Mummy is upstairs in bed”. Later one of the boys greeted the Accused saying “Hello Mummy” and she replied “Hey, how are you going?”.

123. [209]

     The next child access visit commenced at the Werrington unit on 10 March 2013. Later, the Accused and the two boys are seen preparing to light a barbeque with heat beads with the Accused’s daughter also present. One of the boys was holding an open packet of Redheads Extra Long Safety Matches which had been used to light the barbeque.

124. [210]

     On 10 March 2013, the Accused and Monis attended the St Marys Police Station to make a complaint to police concerning Helen Lee and Mr Goundar (Exhibit AL). Police made contact with Helen Lee about this. It is clear that this complaint upset Helen Lee, who regarded the complaint as being untrue. So much is apparent from her text message at 5.44 pm on 10 March 2013 to Monis which said (Exhibit BX):

125. [211]

     Monis responded by text later that evening (Exhibit BX):

126. [212]

     Soon after, Helen Lee replied by text (Exhibit BX):

127. [213]

     Soon after, Monis responded, indicating that police were “trying to identify a guy who has been driving a blue Mazda … I think the reason they have called U because it’s UR car …”.

128. [214]

     The next child access visit was on 24 March 2013, commencing at the Werrington unit. The group travelled by train to the Royal Easter Show at Homebush. The Accused and her daughter separated from Monis and the boys after they left Homebush. Whilst Monis and the boys were on the train, travelling home, telephone contact was made with the Accused. Monis’ younger son repeatedly referred to the Accused as “Mummy” in the course of the telephone call.

129. [215]

     On 24 March 2013, Monis sent a text to Helen Lee expressing satisfaction that Mr Goundar “didn’t come in front of my place” and that “Mr Goundar will probably not come here anymore”, ending the text with a request that she thank Mr Goundar “that he didn’t come here again” (Exhibit BX).

130. [216]

     The final child access visit commenced from the Werrington unit on 7 April 2013. The group proceeded on an outing which involved skateboarding and riding on a mini-train at Darling Harbour. The Accused and her daughter were present, with the Accused holding the hands of the boys from time to time.

131. [217]

     On 9 April 2013, two days after the last access visit before the killing, Helen Lee texted Monis to say “Can you or Amirah not buy toy guns for kids please” (Exhibit BX).

132. [218]

     Monis replied soon after, “Hi how are you? Actually that’s a party toy which sprays string. OK we won’t give them such toys” (Exhibit BX).

133. [219]

     These text messages provide contemporaneous support for a conclusion that the Accused was taking on a form of motherly role, ingratiating herself with Helen Lee’s sons and that Helen Lee was upset at the conduct of the Accused and Monis.

134. [220]

     The evidence of Sonia Conciatore provided further insight into the interrelationship between Monis and the Accused on the one hand, and Helen Lee on the other. Ms Conciatore was a very close friend of Helen Lee. She gave evidence of conversations she had had with Helen Lee in the weeks and months leading up to her death on 21 April 2013.

135. [221]

     It is apparent from the things which Helen Lee was saying to Ms Conciatore that she was being placed under considerable stress by the words and actions of Monis and the Accused. This included activities which Helen Lee saw as the Accused purporting to act as their mother. The text messages in Exhibit BX provide contemporaneous support for these concerns which were communicated by Helen Lee, Monis and to the Accused.

136. [222]

     In determining what weight to give to statements made by Helen Lee to Ms Conciatore, I keep in mind that what was attributed to Helen Lee cannot be tested by cross-examination as she is dead. Having regard to all evidence touching upon this topic, however, I am satisfied that a level of conscious and intended pressure was being placed upon Helen Lee by both Monis and the Accused in the period between January and April 2013.

137. [223]

     The Accused was involved in communications to police which extended, at one point, to the claim that Mr Goundar had intimidated her. In light of the evidence, including that of Mr Goundar, I am satisfied that this allegation was, at the very least, a significant exaggeration on the part of the Accused.

138. [224]

     What is clear from the evidence is that Monis and the Accused were very close in the period leading up to 21 April 2013 and were acting jointly in a manner which, to their knowledge, caused distress and upset to Helen Lee.

139. [225]

     The evidence concerning the child access visits provides a solid foundation, supported by contemporaneous visual evidence, for a conclusion that Monis and the Accused were consistently acting between August 2012 and 7 April 2013 in a manner which was intended to develop a type of family unit, where Monis’ sons referred to the Accused as their mother and with the Accused’s daughter being involved constantly in the family activities.

140. [226]

     This is a most important body of evidence in the trial for two reasons. Firstly, it provides considerable insight into the intentions of Monis and the Accused in this period, in a manner which supports a conclusion that the boys’ mother was to be removed from the equation. Secondly, this consistent pattern of conduct throughout this period counts against any realistic suggestion that there was another woman in Monis’ life at that time whom he may have been able to recruit to murder Helen Lee.

141. [227]

     In early 2012, Monis began associating with the Rebels OMCG, firstly with the Mt Druitt Chapter and later with the Ingleburn Chapter (Exhibit C, paragraph 86ff). Monis expressed a desire to become a nominee so that he could become a full member of the Rebels OMCG. He regularly attended the Mt Druitt clubhouse on Friday evenings for social gatherings.

142. [228]

     Monis’ involvement with the Rebels OMCG was described in the statement of Gary Clifford dated 23 January 2014 (Exhibit AT). Mr Clifford had an association with the Rebels OMCG for more than 20 years as part of the Red, White and Blue support crew. Mr Clifford recalled Monis attending from early 2012. He said that Monis “always wore a bandana on his head and a chain on his jeans” with Mr Clifford volunteering that it “was like he’d watched too many American movies”.

143. [229]

     According to Mr Clifford, Monis wanted to become a nominee (“a nom”) so he could later become a member, a process which took 12 months. It is clear that Mr Clifford did not warm to Monis. Monis came across to Mr Clifford “as being fake”. Monis was “trying too hard to fit in and be accepted” and was “throwing money around for nothing and buying drinks for people”. According to Mr Clifford, most of the men at the club did not like Monis.

144. [230]

     In September 2012, Monis acquired a Harley Davidson motorcycle. He could only do so by obtaining assistance from Female P, who took out a loan for about $25,000.00 on Monis’ behalf (Exhibit DP). Mr Clifford said that two Rebels OMCG members had visited Monis’ Werrington unit in about October 2012. They had gone there “to check the place out” and said that “everything was under plastic and it didn’t look like anyone lived there”. Mr Clifford said that it was typical for background checks to be made on persons who wanted to be members and Monis had offered to show these people where he lived.

145. [231]

     In early 2013, Monis approached members of the Rebels OMCG on two occasions, soliciting assistance to have an unnamed ex-partner killed. On the first occasion, Monis approached Rebels OMCG members at the Mt Druitt clubhouse and stated that he wanted to have a woman “done in” and that he would pay to have it done. Monis had stated that he was going to lose everything if she “went through with it”, a comment that the witness took to be a reference to a divorce. It was evident to this witness that Monis wanted to have a woman killed. Monis’ approach was rebuffed. According to Mr Clifford, the Rebels OMCG member to whom Monis spoke “just laughed at Man and said we don’t do that sort of thing”.

146. [232]

     The second approach occurred in about January-February 2013, also at the Rebels OMCG clubhouse at Mt Druitt. Monis approached some members and raised the topic again. Monis said words to the effect “I’ve got a problem with my ex. She’s going to take my money and my kids. I’m going to do her in. Can you give me a hand?”. Again, Monis’ approach was rebuffed. Mr Clifford said “We all just walked away and left him standing there”. Mr Clifford considered that there “was something not right with [Monis]. He could have been an undercover cop or anything. No-one really knew who he was”.

147. [233]

     Monis also approached people individually about wanting to kill Helen Lee and about wanting to get knives and guns, but, according to Mr Clifford, “People were jack of him asking for knives and guns”.

148. [234]

     Both the Crown and Senior Counsel for the Accused submitted that Monis’ interactions with the Rebels OMCG demonstrated a desire on his part to bring about the death of his former wife in the months preceding her murder on 21 April 2013.

149. [235]

     I accept that Monis acted in this way. However, his requests were rejected summarily by Rebels OMCG members. The Crown says that, in the face of this rebuttal, Monis turned to the Accused to carry out the murder.

150. [236]

     In late 2012 and early 2013, Monis attempted to reconcile his relationship with Helen Lee via third-party intermediaries, including a local Sheikh. These attempts at reconciliation were rejected by Helen Lee who made clear that she did not want to resume her relationship with Monis.

151. [237]

     The Crown submitted that a series of acts by Monis provides strong evidence of his plan to murder his former wife on 21 April 2013. Reliance was placed upon his acts on 10 April 2013 in taking out insurance.

152. [238]

     On 10 April 2013, Monis changed his address details with the Roads and Maritime Services to 43/14-20 Parkes Avenue, Werrington (Exhibit C, paragraph 103). Later that day, Monis attended the Burwood office of the NRMA and took out a home contents insurance policy for 43/14-20 Parkes Avenue, Werrington (Exhibit EC). The home contents coverage was for $150,000.00, of which $20,000.00 was for collectables (books). Monis specifically wanted to insure the books which he described as “priceless”. However, he was unable to provide specific details about the books. Curiously, Monis also took out extra flood cover for his third-storey apartment. There had not been any previous home contents policy for these premises.

153. [239]

     On 12 April 2013, the Accused took out a home contents policy with NRMA with respect to her rental unit at Croydon. There had not been any previous home contents policy for these premises.

154. [240]

     The Crown argues, and the defence accepts, that Monis took out the home contents insurance policy in respect of his Werrington unit as an act in preparation for the murder on 21 April 2013. He knew there was going to be a fire at the unit block, and that his contents would be at risk of damage by fire, smoke and water. He intended to make a false claim in respect of a theft at the time of the killing, so as to introduce the possibility of another person who may be responsible for the murder.

155. [241]

     As will be seen (at [312]ff), following the murder, Monis did initially claim that his property was damaged by smoke, water and debris, but he later abandoned his insurance claim. Monis also made a claim in relation to an alleged theft at the unit.

156. [242]

     A further significant event occurred on 10 April 2013. Both Monis and the Accused took out life insurance policies in the sum of $500,000.00 each. Monis appointed the Accused as the sole beneficiary for his policy. The Accused appointed Monis as her sole beneficiary, after finding out that her daughter was too young to appoint as the beneficiary (Exhibit DY). These steps further fortify a conclusion that Monis and the Accused were in a very close relationship at that time, and that there was no other female in Monis’ life.

157. [243]

     The Crown submitted, and the defence accepted, that Monis had removed what he regarded as valuable documents from the Werrington unit prior to the killing of his former wife on 21 April 2013.

158. [244]

     Located during a search of Monis’ Jeep on 23 April 2013 were items including a number of Iranian documents and translations (birth certificates, a property deed, business registration records and academic records) as well as the Accused’s will (see [168] above), copies of Monis’ old passports, a change of name certificate, a lease agreement and correspondence from Monis to the Rebels OMCG.

159. [245]

     I am satisfied that Monis took these steps as he knew that these items were at risk of damage on 21 April 2013 because of the planned murder of Helen Lee, which he knew would involve the use of fire by the killer.

160. [246]

     On 13 April 2013, Monis met with some friends whom he had not seen for about three years. These were AK, a man who had met Monis soon after he (AK) had come to Australia from Iran in 2000. AK is described by initials as his son, OK, gave evidence at the trial of events which occurred when he was a child: s.15A Children (Criminal Proceedings) Act 1987.

161. [247]

     The other friend contacted by Monis was Ebrahim Hossein-Noori who had first met Monis in Iran in about 1993 or 1994 (T272). He came to meet Monis again after he had come to Australia. Mr Hossein-Noori had become friends with AK. Mr Hossein-Noori had last had contact with Monis in about 2010 when he had an argument with him about Monis’ website (T273). His next contact with Monis was in March 2013 when he invited Monis to his daughter’s birthday party, but Monis did not come.

162. [248]

     Against this background, Monis met with AK and Mr Hossein-Noori on 13 April 2013. He told his friends that he had two children from a previous relationship. This was the first time they had heard that Monis had been married with children. At this meeting, Monis made arrangements for his friends to visit on 21 April 2013 at the Werrington unit where they would meet his children for the first time.

163. [249]

     Monis made no mention to his friends of the Accused at this point. Rather, Monis stated that because he did not have a wife, he could not provide food for the gathering and he asked his friends’ wives to bring some food.

164. [250]

     The Crown submitted, and the defence accepted, that this meeting was arranged by Monis as part of his plan to account for his own movements and whereabouts on 21 April 2013.

165. [251]

     In preparing for his meeting with his friends, Monis calibrated the time on his Sony camera which he used on 21 April 2013 to record his movements. In subsequent searches, police seized a number of memory cards and a laptop, which included numerous videos taken by Monis during his access visits with the children (to which reference has already been made). An examination of these revealed that the time on the equipment used to video all access visits that took place between October 2012 and 7 April 2013 was incorrectly set, and was running approximately 10 minutes late.

166. [252]

     However, some time between 7 and 21 April 2013, the time on the Sony camera was calibrated by Monis to the correct time. The Crown submitted, and the defence accepted, that this was done as an act in preparation for the murder on 21 April 2013. It was submitted that this was likely done on 18 April 2013, when a call was made from the landline telephone number at the Croydon address occupied by Monis and the Accused to an automated computer time service.

167. [253]

     I am satisfied that Monis corrected the time on his Sony camera to ensure that it recorded the time accurately on 21 April 2013. Monis wanted to ensure he had an ironclad alibi for that day.

168. [254]

     At about 10.00 am on Sunday, 21 April 2013, Helen Lee drove to the Werrington unit and delivered of her sons to Monis in accordance with the prevailing order of the Federal Magistrates Court. This exchange took place in the stairwell of the unit complex, a few metres from the door to Unit 43. Monis video recorded this event using his Sony camera. The video commenced at 10.04 am within Unit 43 with the audio of a doorbell/intercom phone ringing. Monis video recorded himself using the intercom, walking to the balcony to check that the door was open and returning to the intercom and lifting the phone off the hook.

169. [255]

     Thereafter, Monis opened the unit door to allow the children in. Helen Lee can be partially seen in the stairwell. Monis greeted the children and, shortly after, the video clip ended. It is clear that Helen Lee did not have keys to the Werrington unit block, let alone to Monis’ unit.

170. [256]

     This was the first of 14 video clips taken by Monis on 21 April 2013 (Exhibits BJ and BK).

171. [257]

     After dropping off her children, Helen Lee returned to her residence. During the day, she exchanged numerous text messages with Mr Goundar.

172. [258]

     The Accused was not present with Monis when he collected the children at his Werrington unit on the morning of 21 April 2013. There was mobile phone contact between Monis and the Accused between 10.00 am and 11.00 am. The cell towers that facilitated that phone contact are consistent with Monis being at Werrington, and the Accused at her Croydon home address.

173. [259]

     The last phone contact between the Accused and Monis was at 10.58 am. At about 11.40 am, the Accused was seen by a neighbour at her unit complex in Croydon.

174. [260]

     The Crown submitted, and the defence accepted, that on 21 April 2013, Monis went to extraordinary lengths to provide himself with an alibi, to lay some groundwork to suggest that an unknown intruder killed his former wife (Exhibit C, paragraph 15ff).

175. [261]

     At about 11.00 am, Monis’ friends, Mr Hossein-Noori, AK and their respective wives and children arrived at the Werrington unit as arranged, to meet Monis’ sons and to engage in a social gathering. They socialised in Monis’ unit before going to the park on the opposite side of Parkes Avenue to play. Whilst at the park, Monis briefly returned to his unit to collect a ball. Upon his return with the ball, Monis told AK that he had seen someone take a photograph of him from a car.

176. [262]

     A short time later, Monis went back to his unit with AK to collect some food for lunch. Upon entering the stairwell of the unit block, they passed a man walking out of the stairwell. Monis said to AK, words to the effect “Why is he here? He doesn’t live in this block”.

177. [263]

     The Crown submitted, and the defence accepted, that Monis made these comments in order to introduce the possibility of unknown persons acting suspiciously in the area of the Werrington apartment block on the day of the murder.

178. [264]

     Monis later recounted details of these incidents, both verbally and in writing, with these versions containing a number of inconsistencies. In a letter to Detective Senior Constable Staples, the officer-in-charge of the murder investigation, dated 13 June 2013, Monis claimed that Mr Goundar was present that morning in a car, from which a woman took a photograph of him (Exhibit CM). Mr Goundar denied being involved in any such activity on 21 April 2013.

179. [265]

     I am satisfied that Monis falsely suggested these things to raise the spectre of a person or persons who may have been connected with the murder. They were steps taken to create a false trail which pointed away from Monis.

180. [266]

     After playing at the park, Monis and his friends drove in convoy in three vehicles from Werrington to the Penrith Swimming Pool. Once at the swimming pool, Monis and his friends continued to socialise together and the children went swimming. During each of these social activities, Monis made a number of short video recordings using his digital Sony camera. Monis recorded all persons present at the time and, on several occasions, turned the camera to record himself. These video clips effectively record Monis’ movements throughout the day (Exhibit BK).

181. [267]

     At about 3.34 pm, Helen Lee sent Monis a text message stating “Hi how are you? I will be 10 minutes late. I have been very sick in the last week and still feeling weak. Sorry about this”. Around this time, Helen Lee left her residence and drove towards Werrington, picking up Mr Goundar en route.

182. [268]

     At 3.49 pm, Monis commenced a video recording of the group as they packed up the picnic and prepared to depart the swimming pool. Monis commented to his sons and friends and asked everyone to help pack up so that they could go quickly.

183. [269]

     Monis then turned the camera towards himself and recorded a form of “selfie” showing his walk towards the pool exit, as depicted in the photograph below (Exhibit BK, page 26):

184. [270]

     The group talked about the picnic as they walked to their cars.

185. [271]

     As the camera was recording, there was talk about the time and Monis’ friend checked his phone and said “Seven to four”. Monis said “Seven minutes to four, we don’t have time”. Monis also said, “No, I think your time is not exact because this is 10 minutes to four”. Monis said this whilst panning the camera up at the wall clock near the entrance/exit to the pool. Monis zoomed the camera in on the clock, which read approximately eight minutes to four, as depicted in the following photograph (Exhibit BK, page 27):

186. [272]

     Monis continued to film as they all walked out to the car park and, whilst doing so, he filmed the “Penrith City Council War Memorial Swimming Pool” sign on the external wall.

187. [273]

     Monis’ preoccupation with discussing the time and filming clocks, as well as filming himself, demonstrated his heavy-handed attempts to record electronically his presence at a place distant from his Werrington unit as 4.00 pm approached that day.

188. [274]

     Upon leaving the swimming pool, Monis’ children travelled in Mr Hossein-Noori’s vehicle, as they had done on the way there. At 3.56 pm, Monis recorded a 27-second video clip which showed his sons seated in the rear of Mr Hossein-Noori’s car.

189. [275]

     The video clip also recorded Monis entering the driver’s seat of his black Jeep Cherokee, in which he was travelling on his own. This was the final video clip recorded by Monis on 21 April 2013.

190. [276]

     The Crown submits, and the defence accepts, that when driving from the swimming pool, Monis staged a motor vehicle collision close to the time of the anticipated arrival of his former wife at the Werrington unit. I am well satisfied that this is what happened.

191. [277]

     At 4.03 pm, Monis was seen driving along High Street, Penrith with his friends following behind in convoy (Exhibits BL and BM). Outside Penrith Police Station, the Jeep driven by Monis swerved and nearly collided with a parked police vehicle. This incident was captured on CCTV footage from Penrith Police Station. The Jeep made a gradual deviation to the left as it approached the rear of the parked police vehicle. The passenger side of the Jeep passed extremely close, in a near-glancing impact, to the front driver’s side of the parked police vehicle. The Jeep’s rear brake lamps became illuminated as it drew alongside the police vehicle. The Jeep was then subject to a significant left-hand steer input towards the kerb, followed by a significant right-hand steer input to draw the Jeep parallel to the kerb.

192. [278]

     Investigation by the Metropolitan Crash Investigation Unit concluded that the movements of the Jeep were highly consistent with the intentional actions of a cognisant driver.

193. [279]

     Having failed to collide with the parked police vehicle, Monis travelled a further 240 metres along High Street, Penrith and drove into a parked Honda Jazz vehicle. The front passenger side of the Jeep collided with the rear driver’s side of the silver Honda.

194. [280]

     Monis complained to his friends of chest pains and requested the attendance of the police, rather than asking for an ambulance. AK attended the nearby police station to report the collision. At Monis’ request, Mr Hossein-Noori recorded the position of the collided vehicles in situ whilst Monis remained seated inside his vehicle.

195. [281]

     An investigation by the Metropolitan Crash Investigation Unit concluded that the crash was the result of a “driver commanded divergence” from the Jeep’s path of travel, resulting in an impact with the parked Honda vehicle. The damage to the vehicles and their position and alignment were inconsistent with an uncommanded deviation from the original path of travel. In reaching this conclusion, the investigation took into account the striking similarities between the near-crash event with the police vehicle outside the police station and the crash between the Jeep and the Honda soon after.

196. [282]

     The Crown contends, and the defence accepts, that the events in High Street, Penrith were orchestrated by Monis in order to provide himself with an alibi for the time of the murder.

197. [283]

     I am satisfied that Monis’ intentional collision with a parked vehicle fortifies a conclusion that his actions that day involved an elaborate charade designed to prove that he was not at Werrington that afternoon, and particularly after 4.00 pm.

198. [284]

     After the collision, Monis made no attempt to contact Helen Lee and advise her of the collision. The Crown contends, and the defence accepts, that this lack of contact by Monis was inconsistent with the text message history between Helen Lee and himself, which showed a pattern of one messaging the other if one of them was running late. Monis’ failure to attempt contact with her points to his expectation that she would be dead by then or soon after.

199. [285]

     At about 4.22 pm on 21 April 2013, Helen Lee and Mr Goundar, parked in Albert Street, Werrington. Whilst Mr Goundar waited in the vehicle, Helen Lee entered the gate to the unit complex at 14-20 Parkes Avenue, Werrington to collect her children.

200. [286]

     Entry by the locked security door, which led to the stairway leading to Monis’ unit, was only possible by use of a key to open the door, or by being buzzed in by somebody inside the unit with that person pressing the buzzer in the unit. Helen Lee did not have a key to the locked security door or to Unit 43. Various witnesses reported that throughout the day the security door was closed and locked, and not propped open. None of the residents of the units that shared the same secure access allowed entry to any unknown person on 21 April 2013.

201. [287]

     I am satisfied beyond reasonable doubt that Helen Lee was allowed into the locked security door by her attacker who was, at that time, inside Monis’ unit. Helen Lee had pushed the buzzer at the ground level and had been buzzed in by her attacker. It is not possible to conclude whether the attacker spoke in the process of allowing entry or remained silent, merely freeing the door by means of the buzzer.

202. [288]

     Helen Lee entered the stairwell and walked up towards the third level of the unit complex where Unit 43 is located. As she climbed the stairs between the second and the third levels, she was attacked by the killer who stabbed her repeatedly to her back, chest and arms before setting her alight. The evidence surrounding the killing will be considered in more detail when referring to the eye witness evidence (at [364]ff below).

203. [289]

     I am satisfied beyond reasonable doubt that Monis had provided the attacker with keys to the locked security door on the ground floor, as well as the door to Unit 43. Both the Crown and Senior Counsel for the Accused acknowledged that the Court should make this finding. It was common ground that the Accused had keys to both these doors at the time of the killing.

204. [290]

     Following the collision in High Street, Penrith after which Monis complained of chest pains, an ambulance attended the scene and transported him to Nepean Hospital for assessment. Monis’ children were put in the temporary care of Mr Hossein-Noori after Monis resisted an offer to facilitate their return to Helen Lee, by stating that she had contacted him earlier and advised that she was sick and was going to pick up the children late.

205. [291]

     It is the fact that at the time when Monis resisted this police offer, Helen Lee was already dead.

206. [292]

     On examination at Nepean Hospital, Monis’ cardio-vascular system and chest x-ray were both found to be normal. No abdominal abnormalities were identified. He had minimal tenderness to his right hand, and was observed to be moving normally around the Emergency Department. His chest pain was considered attributable to muscular-skeletal injury consistent with a motor vehicle accident. In short, I am satisfied that there was nothing physically wrong with Monis. His claim to be injured was just a further step in his elaborate charade to provide himself with an alibi.

207. [293]

     At 7.10 pm, the Accused called Monis. The call diverted to voicemail. Monis attempted to return the Accused’s call. Unsuccessful calls were then made back and forth between their mobile telephones.

208. [294]

     At 7.19 pm, the Accused successfully connected to Monis’ mobile telephone and was engaged for 120 seconds. This was the first identified telephone contact between them since 10.58 am that day.

209. [295]

     Before this, Monis made no attempt to contact the Accused to tell her about the traffic accident and his hospitalisation, despite making a series of phone calls to the friends with whom he had spent the afternoon (beginning at 4.16 pm and continuing throughout the evening).

210. [296]

     At 8.00 pm, the Accused appeared on CCTV at Croydon Railway Station and the nearby Café on Strand. She checked the train timetable before exiting the station onto The Strand. She then paused in front of the CCTV camera and played with her hair (Exhibits BN and BP).

211. [297]

     At 8.22 pm, Monis called the Accused and their phones were connected for 50 seconds.

212. [298]

     At 9.14 pm, the Accused appeared on CCTV footage at Kingswood Railway Station after departing from a train on Platform 2. The Accused walked around for a period of time before exiting the station onto the Great Western Highway at 9.19 pm (Exhibits BQ and BS). Below is a photograph of the Accused taken at Kingswood Railway Station at 9.19 pm (Exhibit BQ):

213. [299]

     At about 8.45 pm, police officers spoke to Monis at Nepean Hospital, at which time he was informed of the death of his former wife. The officers sought to determine the whereabouts of Monis’ children so their welfare could be established. They repeatedly asked Monis for this information, however he was evasive and reluctant to provide details.

214. [300]

     The police interview of Monis, which commenced at 8.45 pm, was recorded by video (at least initially) (Exhibits AW and AX). The video tape depicts the police telling Monis that his former wife was dead. Monis stated that he was in pain and asked the police to stop the recording (Exhibit AX, Q/A43). The police officer placed the camera down, but the conversation between Monis and the police continued to be recorded. Monis asked to see a doctor, telling him that “my heart is very much beating”. An ECG was performed with no medical problem being identified. Monis gave the appearance of being distressed.

215. [301]

     Monis provided police with an account of his movements and whereabouts during the day, and stated that he had received a text message from his former wife which said she was sick. Monis said that he was wondering why she still had not called him and that he had been waiting for her call and would then tell her about his car accident.

216. [302]

     At 9.22 pm, the police officers observed Monis making a telephone call. It was a call to the Accused. Monis’ side of the conversation was recorded (Exhibit AX, Q/A178). He was heard to tell the Accused that he was at the hospital and that the police had just arrived to tell him that his former wife had died “two steps before my unit”. He told the Accused that the police wanted to see the children to make sure they were safe. Monis said that he needed to make other calls. Monis repeatedly told the Accused to wait for his call and that he would call her again when he had finished speaking with the police.

217. [303]

     The Accused did not attend Nepean Hospital to meet Monis even though she was close by, in the vicinity of the Kingswood Railway Station and the Great Western Highway, at about the time of this telephone conversation.

218. [304]

     At the conclusion of his telephone conversation with the Accused, Monis did not answer a question from the police as to the identity of the person he had been speaking to on the phone (Exhibit AX, Q/A179ff).

219. [305]

     Whilst speaking with police officers at Nepean Hospital, Monis asked for various details relating to the death of his former wife. He declined to answer questions regarding his current personal relationship or whom he had been talking to on the phone. Monis wanted a written guarantee signed by police that they would not tell the children that their mother had died. The officers agreed to this and Monis eventually agreed to accompany the officers to allow them to see the children and to confirm their safety at Mr Hossein-Noori’s house after his discharge from hospital. Monis was also advised that his Jeep had been towed from the accident scene in Penrith.

220. [306]

     Monis was filmed by CCTV leaving the hospital with police at 10.18 pm (Exhibit AY).

221. [307]

     On 22 April 2013, Monis, the Accused, Monis’ two sons and the Accused’s daughter were together at the Croydon unit. On the evening of 22 April 2013, Monis filmed family scenes of himself, the Accused and the three children inside the unit. The video footage contains images of the Accused cooking dinner, putting Monis’ children to bed and helping the children to put on their pyjamas and reading stories to one of them before bed time. The images may be described as happy family scenes of two adults and three children (Exhibits CQ and CR).

222. [308]

     It is clear that the two boys did not know at this time that their mother had died the previous day. The Crown submits that these domestic images of a family shed light upon the state of mind and intentions of both Monis and the Accused in that, within 24 hours of the murder of the boys’ mother, an apparently happy family unit has been formed and is functioning. In my view, this footage forms a telling part of the Crown case against both Monis and the Accused.

223. [309]

     On 22 April 2013, police officers attended the Croydon unit and spoke to the Accused at her front door. The discussion was filmed. Somewhat blurry photographs of the Accused depict part of her arms and her hands and (insofar as one can tell) there do not appear to be any visible injuries (Exhibit 10).

224. [310]

     On 22 April 2013, upon application by Helen Lee’s parents, a Family Law Recovery Order was issued by the Federal Circuit Court of Australia at Parramatta with respect to the two children.

225. [311]

     The Croydon premises were searched by police officers on 23 April 2013. At the conclusion of the search, officers served the Family Law Recovery Order upon Monis who was advised that the children were to be returned to their grandparents. The two boys were then taken by police who returned them to Helen Lee’s parents.

226. [312]

     Mention was made earlier of Monis’ claim after 21 April 2013 that items had been stolen from the Werrington unit. On 30 April 2013, Monis’ legal representatives sent a letter to Detective Senior Constable Staples to advise that Monis had discovered that certain items had been stolen from Unit 43, some time after he left it on 21 April 2013 and prior to 30 April 2013.

227. [313]

     On 3 May 2013, Monis reported this break and enter to his insurance company, NRMA, and lodged an insurance claim for the theft of certain items. These items were initially reported as being $5,050.00 cash and a gold necklace worth approximately $4,000.00. Later six antique books were added to the list of stolen items. Monis stated that these books were valued at $3,000.00 each. Monis claimed that the offence occurred proximate to the time of the murder. He did not formally report the break and enter to police until 15 May 2013, and only after his insurance company insisted that a police event number was required to process the claim. Monis did not disclose the fact that his former wife had been murdered in the stairwell to his unit to the Police Link Operator or to the NRMA.

228. [314]

     Monis declined to give consent to the forensic examination of Unit 43 in relation to his break and enter report. However, an examination was conducted pursuant to a crime scene warrant on 16 May 2013 (during which Monis was present). Monis told the police that the cash and necklace were stolen from the bottom drawer of a locked two-drawer timber filing cabinet. However, the previous day, he informed an NRMA assessor that these items had been stolen from the top drawer of the same filing cabinet.

229. [315]

     Monis claimed the locks on the timber filing cabinets had been prised open by the thief. However, when police conducted a search of the unit on 22 April 2013, the drawer was found to be closed and locked. The drawers were later forced open by officers in order to search the contents of the filing cabinet. No cash or jewellery were located by police at the time of this search. Monis claimed that the cash and necklace had been concealed behind files in the drawer and had been stolen.

230. [316]

     In relation to the antique books, Monis was vague about where they had been stolen from in the unit. However, he advised the NRMA assessor and the investigator appointed by the insurance company that the books were inside a clear plastic bag located on the second or third shelf from the bottom.

231. [317]

     Police conducted a comparison of the internal appearance and condition of Unit 43 from photographs and videos from a number of sources between 21 April 2013 and 16 May 2013. A number of photographs and videos were located on a SD memory card, which was found inside the lining of a glasses case during a search warrant of Monis’ Clemton Park residence on 15 November 2013.

232. [318]

     These photographs, and a walk-through video, depicted the internal appearance of Unit 43 and were taken by Monis between 12.10 pm and 12.22 pm on 30 April 2013, which was the day he claimed that he discovered the alleged break and enter. A total of 42 photographs were taken, yet none of these photographs depicted the supposed damage to the drawers where the cash and jewellery were stolen.

233. [319]

     In photographs of the upstairs bedroom in Unit 43, six or seven books were visible on a shelf. These books were also visible in initial photographs taken by crime scene investigators on 21 April 2013 and during the recorded search by police on 22 April 2013. Significantly, however, these books were not on the shelf in the NRMA’s assessor’s photographs, and were not present at the time of the search on 16 May 2013. The location of these books was in the area where Monis had alleged that the antique books had been stolen. Monis told the NRMA that he did not remove anything after discovering the break and enter. However, these photographs revealed that this was not the case.

234. [320]

     Following examination of Unit 43 after the murder, investigators observed no forced entry or damage to the external security door. It was observed to be closed and locked when NSW Fire and Rescue arrived on the scene in response to the “000” calls. Unit 43 was not ransacked and was found to be in a clean and neat order when police officers arrived on the scene. There were many other high priced items that were not taken, such as a stereo system, plasma television, electric piano, laptop and other books of a similar description to the ones stolen. There had been no reports of any other break and enter offences for that date in the area.

235. [321]

     During the insurance investigation by the NRMA, Monis failed to disclose that his former wife had been murdered in the stairwell of the unit complex on 21 April 2013. In an interview with an NRMA investigator, Monis provided contradictory details of relevant information. Monis would not provide details of other key holders, and other relevant information requested by him of the insurance company. He failed to inform the investigator of the “stranger” he allegedly saw leaving the unit on 21 April 2013, although he did disclose the person in the car allegedly photographing him. Monis declined to answer certain personal questions. He could not provide any proof of ownership for the gold necklace or the antique books.

236. [322]

     After conducting its investigation, the NRMA refused Monis’ claim due to doubts about the veracity of Monis’ statements and his inability to demonstrate that he had suffered a loss. The company’s view was that the incident did not occur in the manner reported by Monis, if at all.

237. [323]

     The Crown submitted, and the defence accepted, that the report of theft was made by Monis as a way of diverting attention away from the attacker by proposing a random property offender as a possible murder suspect. The Crown submitted, and the defence accepted, that this false report by Monis demonstrated his complicity in the murder of his former wife both before and after the fact.

238. [324]

     I am satisfied that the history of Monis’ insurance claim, arising from the events on 21 April 2013, provides strong support for a conclusion that Monis planned the murder, devising a false theft scenario in the process. It provides support, as well, for a conclusion that Monis did not hire a killer to whom he had paid or owed money for the killing.

239. [325]

     On 29 May 2013, Monis and the Accused attended the Parramatta Police Station where Monis spoke to Constable Najit Azeez (Exhibit CU). In the presence of the Accused, Monis complained that Helen Lee’s father had threatened to kill him (Monis) at the Family Court and maintained, as well, an allegation that his former father-in-law had sexually abused one of Monis’ children. Monis told police “My partner was murdered earlier this year, my children are with their grandmother and I am trying to get custody of them”. Constable Azeez took a statement from Monis dated 31 May 2013 concerning these issues.

240. [326]

     On 4 June 2013, Monis rang Constable Azeez and told him that he was bringing the Accused into the police station that evening. Monis and the Accused attended and the Accused had a prepared two-page statement which she handed to Constable Azeez (part of Exhibit CU). It related to her alleged fears of Helen Lee’s father and that she kept “thinking about his death threat and the fact that he is a locksmith”. In this document, the Accused purported to corroborate Monis’ allegation that Helen Lee’s father had made a death threat at the Family Court.

241. [327]

     When the Accused attended Parramatta Police Station on 4 June 2013 to make a statement in relation to this complaint, she was accompanied by Monis. Their conversation at the police station was lawfully recorded (Exhibits EI and EJ).

242. [328]

     The entire conversation between Constable Azeez, Monis and the Accused was recorded that day. Constable Azeez left the room on two occasions with the Accused and Monis discussing the matters in his absence. The Crown seeks to rely upon what Monis and the Accused said on this occasion. It is these parts of the conversations upon which the Crown seeks to rely. The Crown contends that, whilst the police officer was out of the room, Monis and the Accused were effectively rehearsing what was to be said to the police officer concerning their alleged fears of Helen Lee’s father, and an assertion that the fact that he was a locksmith was relevant to those fears. The Accused said things to Monis whilst the police officer was absent which fit this formula.

243. [329]

     Some of the things said in the absence of the police officer were repeated later in the recorded conversation (Exhibit EJ, pages 63, 79, 82, 88 and 94).

244. [330]

     In addition, Monis told the Accused to answer “No comment” in the event she was asked about events on 21 April 2013 and she adopted this course (Exhibit EJ, pages 10, 88).

245. [331]

     Prior to the Accused being interviewed, and whilst police were absent from the room, Monis said to the Accused “Don’t shy if he asks you questions about 21st April, don’t shy, just say that …”. The Accused said “I will not shy” and Monis said “I know just say that … this matter … I won’t make any comment, anything I say about this matter and if there is anything else, whatever you like to say, just don’t shy”.

246. [332]

     Constable Azeez took a statement from the Accused about her allegations. He said that the Accused was “argumentative” and when he asked probing questions about her relationship with Monis, Monis’ children or her knowledge of Helen Lee’s father “she became rude and stated ‘No comment’, I don’t see why that is relevant” (Exhibit CU).

247. [333]

     The Crown alleges that Monis and the Accused were both making knowingly false allegations about Helen Lee’s father. Helen Lee’s father denied these allegations (Exhibit CU). The Crown submitted that this was a further example of the Accused doing Monis’ bidding in a context where she well knew that the allegations were false. I will return to the events at Parramatta Police Station later in the judgment (at [613]ff).

248. [334]

     On 13 June 2013, Monis wrote to Detective Senior Constable Staples providing information concerning the murder of his former wife. He asserted that the “main suspect” was her father, providing a lengthy explanation for his suspicion. Amongst other things, Monis alleged that Helen Lee’s father “chose a very close location to my unit as a cover” to try and make it look like Monis had killed his former wife. He asserted, once again, that the fact that Helen Lee’s father was a locksmith may have given him “easy access to any lock”.

249. [335]

     The “second suspect” provided by Monis was Mr Goundar. As to other possible suspects, Monis used the term “so many enemies” which he attributed to Helen Lee’s mother.

250. [336]

     At a later time, Monis proposed (to Detective Senior Constable Staples) to have the Accused wired up for the purpose of having a conversation with a member or members of the Rebels OMCG, allegedly without the Accused knowing why this was happening. Detective Senior Constable Staples gave evidence that this suggestion was far-fetched and was not acted upon (T624-628, T904-906).

251. [337]

     Between 14 May and 14 November 2013, Monis, the Accused and the Accused’s daughter were living together at premises in Clemton Park (Exhibit A, Tab 6).

252. [338]

     On 15 November 2013, Monis and the Accused were arrested in Campsie following a vehicle stop, and both were charged with offences related to the murder.

253. [339]

     Whilst in custody, Monis asked two different fellow prisoners, on different occasions, to have criminal groups assist in murdering Helen Lee’s father. Monis suggested to these prisoners that payment for the killing may result from items of value to be found in the premises of the proposed victims. Both requests were rejected by the prisoners in question (T889-890).

254. [340]

     On 19 November 2013, Detective Senior Constable Staples interviewed Soula Droudis (the Accused’s mother). The interview was videotaped (Exhibits 35 and 36). In this interview, Soula Droudis sought to recant some of the things which she had told the police when they had visited her at her Belmore address on 25 April 2013. In the recorded interview of 19 November 2013, Soula Droudis indicated (amongst other things) that Monis was a “liar” and had “told lies” (T582).

255. [341]

     On 27 January 2014, a brief of evidence was served on the Accused and Monis. That brief contained a copy of the video where Soula Droudis had called Monis a liar (T582).

256. [342]

     On 20 February 2014, the Accused and Monis, both at this time on bail, visited Soula Droudis at her Belmore home. During that visit, Soula Droudis, who was clearly unwell and was breathing with the assistance of an oxygen mask, made an apology (in both English and Greek) to Monis which was recorded by the Accused on her mobile phone. The conversation between them was as follows (Exhibits BZ and CA):

257. [343]

     It is apparent from the video that Soula Droudis was in a distressed state as the apology was given.

258. [344]

     On 30 April 2014, a document was prepared by Monis, being a draft statement designed for signature by Soula Droudis (Exhibit DU). The draft statement included the following:

259. [345]

     Although apparently not signed by Soula Droudis, this draft was clearly intended to be read in conjunction with the filmed apology of 20 February 2014.

260. [346]

     The Crown submitted that, quite apart from demonstrating Monis’ manipulative character, the incident on 20 February 2014 provided a telling insight into the relationship between Monis and the Accused, with the Accused being prepared to film what must have been a traumatic process for her sick mother apologising to Monis for things which she had said about him. It was submitted that the Accused was prepared to act at Monis’ direction, in subjecting her own unwell mother to this highly stressful experience solely to serve Monis’ purposes.

261. [347]

     From March 2014 to December 2014, the Accused and her daughter and Monis (when not in custody) were living at premises in Wiley Park (Exhibit A, Tab 6).

262. [348]

     On 22 April 2014, the Accused wrote to Monis who was, at that time, once again in custody, this time as a result of having been charged with sexual assault offences (T607). The letter (Exhibit CL) demonstrates the depth of feeling which the Accused had for Monis at that time. In addition, it illustrated the Accused’s continuing adherence to religious beliefs which accorded with those of Monis.

263. [349]

     The Accused states that she and her daughter (who had also converted to Islam) “are still practising the last few verses of Ayat ul Kursi, as we still haven’t learnt it completely”. She states that she had “downloaded Mafatih in English, so [she] will start to read this”. In the course of the letter, the Accused states:

264. [350]

     The letter concludes with similar terms of endearment:

265. [351]

     On 31 July 2014, a number of photographs of Monis were taken using the Accused’s mobile telephone. Monis is wearing a headband containing Arabic script which stated “We are your soldiers Mohammed, may Allah honour him and grant him peace”. The photographs were taken whilst Monis was sitting in the Wiley Park premises occupied by Monis, the Accused and the Accused’s daughter (T645).

266. [352]

     I am satisfied that the Accused took these photographs whilst Monis posed for them. Apart from evidencing the continuing relationship between Monis and the Accused at that time, the photographs point more importantly to the preparedness of the Accused to assist Monis in a measure which involved the display of extremist religious content.

267. [353]

     The Crown relied upon this as a further piece of evidence which, when taken together with earlier events, demonstrated a continuing close relationship between Monis and the Accused, since about 2007-2008, with the Accused being prepared to act at the behest of Monis, in a range of ways in expressing or communicating Monis’ extremist views, and with the Accused seeming to adopt these views uncritically.

268. [354]

     I have outlined at some considerable length, Monis’ background, his relationship with his former wife and their sons, his relationship with the Accused, and his actions before, during and after the events on 21 April 2013.

269. [355]

     I am satisfied, beyond reasonable doubt, that Monis planned and put into effect the murder of Helen Lee. This conclusion has been reached following an assessment of a variety of pieces of the evidence which lead inexorably to this conclusion.

270. [356]

     The principal factors which have led me to this conclusion are as follows:

271. [357]

     The Crown has established beyond reasonable doubt that Monis planned the murder of his former wife, which was to take place on 21 April 2013 and that he arranged for someone to carry out the murder on his behalf.

272. [358]

     The Crown alleges that the person who carried out the murder was the Accused. I now turn to consider that critical issue for the purpose of the trial.

Has the Crown Proved Beyond Reasonable Doubt that the Accused was the Killer?

1. [359]

   Much of the narrative of the relationship between Monis and the Accused, and of events which occurred over a period of years up to 2014, has been set out in the course of considering the position of Monis with respect to the murder. I will seek to avoid any unnecessary repetition in considering the position of the Accused.

2. [360]

   The Crown submitted, and the defence accepted, that the Court would be satisfied beyond reasonable doubt that the killer was a woman. It is for the Court to consider whether the Crown has proved beyond reasonable doubt that this was the case.

3. [361]

   At the outset, I express my satisfaction that the evidence does demonstrate that the killer was female and that this has been proved beyond reasonable doubt. The evidence of the persons at the Werrington apartment block demonstrate this feature beyond any doubt.

4. [362]

   At about 4.00 pm on 21 April 2013, Helen Lee met Mr Goundar and drove to the Werrington apartment block for the purpose of picking up her sons after the access visit. She drove the car and parked it in Albert Street. They arrived at about 4.20 pm or 4.25 pm (T334). Mr Goundar remained in the vehicle. After a time, Mr Goundar noticed that police and the fire brigade came to the building. At about 4.36 pm, he tried to call Helen Lee unsuccessfully (T335). Mr Goundar became increasingly concerned and in due course he came to speak to Detective Megan Oxley (T336).

5. [363]

   After leaving Mr Goundar in the vehicle, Helen Lee entered the grounds of the apartment block and approached the outer security door. She pressed the buzzer and was let in by the killer who was, at that time, inside Unit 43. She mounted the staircase and reached the intermediate landing between the second and third floors.

6. [364]

   What then occurred is best described through the evidence of Wayne Morris, who occupied Unit 40 on the top level where Unit 43 was also located.

7. [365]

   Mr Morris was watching football on television when he heard a noise outside his unit door. He described in evidence-in-chief what happened next (T57-59):

8. [366]

   The Senior Crown Prosecutor asked Mr Morris what happened next (T59):

9. [367]

   Mr Morris was asked to describe the appearance of the attacker (T61-62):

10. [368]

    Mr Morris was asked to provide a description of the attacker (T62-63):

11. [369]

    Mr Morris described the conclusion of his observations in the following way (T63):

12. [370]

    Mr Morris explained his fear concerning the fire started by the attacker on his floor of the building, and the “000” call which he made (T68):

13. [371]

    It was an agreed fact that Mr Morris’ “000” call was made at 4.27.54 pm on the afternoon of Sunday, 21 April 2013.

14. [372]

    Mr Morris was assisted out of the building by firemen.

15. [373]

    On 23 April 2013, Mr Morris attended St Marys Police Station where he undertook a photographic identification procedure involving 20 head and shoulder photographs of females displayed, one by one, on a computer screen. Mr Morris did not select the photograph of the Accused. He selected the photograph of another woman (who had no connection to the offence) and expressed the view that it was “100 per cent that’s her” and “That’s her screaming at me” (Exhibit O, Q/A24-Q/A27).

16. [374]

    The Court was informed that the photograph of the Accused, which was used for the purpose of the photographic identification process, had been obtained by Roads and Maritime Services for the purpose of her driver’s licence.

17. [375]

    To the right below is the photograph of the Accused contained in the photographic array shown to Mr Morris (Exhibit F). To the left below is the photograph selected by Mr Morris:

18. [376]

    Earlier in the judgment (at [78]-[86]), I referred to factors to bear in mind in assessing photographic identification evidence. It was submitted for the Accused that Mr Morris’ identification of a person other than the Accused is exculpatory and assists the Accused in the trial. The Crown submitted that the person selected by Mr Morris is very similar to the Accused so that the evidence is capable of supporting the Crown case.

19. [377]

    I bear in mind that the observations of Mr Morris occurred in dramatic and highly charged circumstances (when Mr Morris understandably feared for his own life) and where he could only see the facial features surrounded by the head dress worn by the attacker. The events occurred relatively quickly although Mr Morris had an opportunity to see the attacker at reasonably close range and face to face. I have kept in mind the level of certainty which he expressed in his selection of a photograph of another person. At the same time, I note that the level of confidence of an identifying witness is not necessarily a reliable factor in the identification process.

20. [378]

    I have carefully considered the photograph of the Accused and the photograph of the female selected by Mr Morris, together with other photographs of the Accused which are in evidence. In particular, there are photographs of the Accused depicting her facial features in a range of circumstances between 19 July 2012 and 9 April 2013 (Exhibit DV). One of these photographs, which depicts the Accused and Monis on 9 April 2013, appears at [568] below. An examination of these photographs provides considerable assistance to an assessment of the photographic identification process undertaken by Mr Morris.

21. [379]

    As the above photographs illustrate, the 20 photographs used all involve images of the head and neck of each person only. Mr Morris, and the other persons who examined these photographs, did not have the advantage of a full-body view which applies at a line-up, nor the advantage of observing persons moving as may be seen, once again, in a line-up. The limitations of photographic identification referred to at [82]-[83] above are illustrated in this case.

22. [380]

    In my view, the process of identification undertaken by Mr Morris assists the Crown case. There is a marked similarity between the photographs of the Accused and the person depicted in the photograph selected by Mr Morris. Mr Morris was in the best position to see the attacker, with whom he also spoke, albeit under circumstances of great stress. What is also of importance in the evidence of Mr Morris is the description of the attacker as being “chubby” or “plump”, terms which the evidence reveals were apt descriptions of the Accused as at 21 April 2013, as the photograph at [298] demonstrates.

23. [381]

    Peta Drzewiecki was living in Unit 25 with Jonathon Truupold as at 21 April 2013. Unit 25 was located on the middle floor of the block below Mr Morris’ floor. Ms Drzewiecki stated that, at about 4.25 pm on 21 April 2013, she was standing in her kitchen and heard a disturbance in the stairwell. The Crown asked (T83):

24. [382]

    Ms Drzewiecki explained that Mr Truupold had left the unit to find out what was happening, and had returned soon after saying that “There was a fire upstairs” (T85). Ms Drzewiecki rang “000“ at 4.28.33 pm.

25. [383]

    After making the “000” call, Ms Drzewiecki opened her unit door (T86-87):

26. [384]

    Ms Drzewiecki said that the woman was carrying a “small bag” on her right shoulder (Exhibit K).

27. [385]

    Ms Drzewiecki provided a more detailed description of the female (T89-90):

28. [386]

    On 22 April 2013, Ms Drzewiecki attended the St Marys Police Station where she participated in a photographic identification procedure involving the same 20 photographs which were shown to Mr Morris (in a different order). Ms Drzewiecki selected a different photograph of a person as being “similar” to the female she had seen (Exhibits L, M, N and P).

29. [387]

    Mr Truupold said that, between 4.00 pm and 4.30 pm on 21 April 2013, he was alerted by Ms Drzewiecki to a disturbance coming from the stairwell (T99). Mr Truupold described what he heard (T99):

30. [388]

    Mr Truupold explained what occurred next (T100):

31. [389]

    Mr Truupold tried unsuccessfully to find a fire extinguisher and then obtained some flour from his unit which he shook onto the flames in an effort to reduce or extinguish the fire (T100-101).

32. [390]

    At about this time, Mr Truupold observed a person through the flames (T101-102):

33. [391]

    Mr Truupold gave a description of the person whom he saw (T102-103):

34. [392]

    On 23 April 2013, Mr Truupold went to St Marys Police Station where he underwent a photographic identification procedure involving the same 20 photographs shown to other witnesses. Mr Truupold selected five photographs of persons, none of which was the Accused, as being possible photographs of the person he saw (Exhibits Q, R, S and T).

35. [393]

    It will be observed that the evidence of Ms Drzewiecki and Mr Truupold did not involve selection of the Accused’s photograph. Other photographs were pointed to without the degree of certainty expressed by Mr Morris. It will be apparent that Ms Drzewiecki and Mr Truupold saw the attacker in challenging circumstances as well. The person was moving past them at some speed. Mr Truupold’s observations were made whilst the fire was burning in the stairwell.

36. [394]

    In these circumstances, the fact that these witnesses did not select the photograph of the Accused provides limited assistance to the defence. Of significance, is the description given by the witnesses of the dress and head covering of the attacker.

37. [395]

    Of particular significance is the fact that each of Mr Morris, Ms Drzewiecki and Mr Truupold were clear that the attacker was a female. Each of them had an opportunity to observe the attacker at sufficiently close range to make their identifications of the gender of the attacker reliable. This aspect of the evidence is of great importance in my finding to the criminal standard that the attacker was a woman.

38. [396]

    Kirstein Edwards lived in Unit 42 of the Werrington apartment block in April 2003.

39. [397]

    Unit 42 was on the top floor of the block, with the apartments of Mr Morris and Monis.

40. [398]

    Ms Edwards left the apartment block at about 10.00 am on 21 April 2013 and did not return until later in the day. When she entered the stairwell, she encountered black smoke and could not proceed further. She returned to her vehicle and went to a friend’s place. Ms Edwards did not see the attacker and thus no photographic identification was sought to be undertaken with her concerning the attacker.

41. [399]

    Ms Edwards was asked if she could identify, from the 20 photographs, the female person whom she had seen going to and from Unit 43 on occasions other than 21 April 2013. Ms Edwards selected a number of photographs, nominating the photograph of the Accused as being similar to the person. Interestingly, Ms Edwards also selected the photograph which Mr Morris had picked in his photo identification procedure. Ms Edwards said that the photograph of the Accused was “very similar” to the woman she had seen entering and leaving Unit 43 (Monis’ unit) (Exhibits V, W, X and Y).

42. [400]

    In April 2013, Mathew Hill lived in Unit 45 which was on the top floor, together with the units of Mr Morris, Ms Edwards and Monis. Although on the same floor of the building, a different stairway led to Mr Hill’s unit.

43. [401]

    Mr Hill said that, at about 4.15 pm on 21 April 2013, he heard a commotion. Mr Hill said that he heard a female scream and then a male scream, and he went out on to his unit balcony which looked into the main courtyard of the unit block (T130). The Senior Crown Prosecutor asked Mr Hill what he did and saw (T130-131):

44. [402]

    After making these observations, Mr Hill went back inside his unit and went downstairs.

45. [403]

    On 24 April 2013, Mr Hill attended the St Marys Police Station and undertook a photographic identification procedure utilising the same 20 photographs as shown to other witnesses. He selected five photographs, including the photograph of the Accused, as possibly being the person whom he observed (Exhibits AB, AC, AD and AE).

46. [404]

    In cross-examination, Mr Hill was asked (T138):

47. [405]

    It was established that the distance from Mr Hill’s balcony to the gate to the Parkes Avenue exit at the side of the apartment block was approximately 33.8 metres (Exhibit DW). Accordingly, the observations by Mr Hill of the female departing via the gate at the side of the property involved an observation in daylight at that distance.

48. [406]

    I pause at this point to refer to some submissions, and to express some conclusions, concerning the evidence of the residents of the apartment block who saw a person in the stairwell, or emerging from the stairwell, on the afternoon of the murder.

49. [407]

    Put shortly, the Crown submitted that the evidence of Mr Morris was strong evidence implicating the Accused by his selection of a photograph of a very similar looking person, his description of the size of the attacker and of her dress, manner and actions. The Crown submitted that the evidence of the other eye witnesses supported the description of the attacker as a female and her dress, including head covering. The Crown submitted that Mr Hill had seen the attacker leave the building and depart via the Parkes Avenue exit, although she had removed her head covering by then so that her hair was visible.

50. [408]

    It was submitted for the Accused that a significant aspect of Mr Morris’ identification was that he did not respond at all to the image of the Accused during the photographic identification process. It was submitted that this was important because he had said that he had focused on the attacker’s face.

51. [409]

    Submissions were made for the Accused concerning the evidence of Mr Truupold and Ms Drzewiecki. It was submitted that Ms Drzewiecki’s evidence was deserving of the greatest weight for three reasons:

52. [410]

    It was noted that Ms Drzewiecki said that the body shape of the attacker was slender-to-medium, with her meaning a slender build being between 50 kg and 60 kgs. It was noted that, when the Accused applied for life insurance on 10 April 2013 (see [242] above), she stated that her weight was about 85 kgs (in April 2013) and counsel submitted that this was likely to have been accurate at that time given the photographs of the Accused in evidence.

53. [411]

    With respect to Mr Hill, it was submitted for the Accused that his observation of the person leaving the building, and moving to the Parkes Avenue exit, was made at considerable distance, some 33.8 metres away. He had a side view only which must have lasted for a short period before the person disappeared. It was submitted that the distance factor, the side view and the period of time that Mr Hill observed the woman effectively eliminated him as a witness of any weight in terms of the facial features of the person he saw.

54. [412]

    I am satisfied that Mr Morris had the best view of the attacker, including her body shape. Although he selected a photograph of a different person, that female was very similar in appearance to the Accused. It is clear from his evidence that the image of the attacker as being “plump” or “chubby” was one that struck him at the time. He saw the attacker moving and at close range. I do not accept the defence submission that Ms Drzewiecki was in the best position to observe the body shape of the attacker.

55. [413]

    I accept that each of these witnesses was an honest witness making every effort to give an accurate account of what each of them saw in very trying circumstances. The following features should be noted at this point:

56. [414]

    It is appropriate to consider next the evidence of another person who was in the vicinity of the Werrington apartment block, and upon whose evidence the defence seeks to place great weight. This is Nigel Quiney (described in the transcript as “Quiny”), and an associated witness, Peter Woods.

57. [415]

    In April 2013, Nigel Quiney lived at an address in the vicinity of the Werrington apartment block. It was his evidence that, on the afternoon of 21 April 2013, he walked from his address to meet friends in the apartment block at 10 Parkes Avenue, Werrington. When in the vicinity of the Albert Street entrance to the Werrington apartment block, Mr Quiney said that he heard some screaming at a time when he was near an older lady in the street, who also appeared to hear this sound (T148). He walked another few metres towards Parkes Avenue. He gave evidence that he then observed a woman coming out of the Werrington apartment block (T149-150):

58. [416]

    I pause at this stage to note that the woman observed by Mr Quiney was leaving the Werrington apartment block on the opposite side (the Albert Street side) to that referred to in Mr Hill’s evidence (the Parkes Avenue side).

59. [417]

    Mr Quiney’s evidence took an unexpected turn at the start of his cross-examination (T151-152):

60. [418]

    Senior Counsel for the Accused asked Mr Quiney about the woman (T153):

61. [419]

    Later in cross-examination, Mr Quiney said that police had shown him photographs when he gave a statement at the police station (T155.45).

62. [420]

    In re-examination, Mr Quiney was asked (T156):

63. [421]

    A joint application was made on 24 August 2016 that Mr Quiney be stood down to allow further enquiries to be made. Mr Quiney was recalled on 29 August 2016. The Crown foreshadowed that an application under s.38 Evidence Act 1995 was to be made with respect to him. I accepted a defence submission that the appropriate way forward was for the cross-examination of Mr Quiney to conclude, with the Crown then to make its s.38 application and this is what in fact occurred: R v Droudis (No. 3) [2016] NSWSC 1553.

64. [422]

    Under cross-examination by Senior Counsel for the Accused, Mr Quiney said that police had shown him a number of individual photographs of persons (T209). Mr Quiney said that, after walking to the apartment block at 10 Parkes Avenue and entering his friend’s apartment, he was on the veranda and “smelt a strange smell” (T211).

65. [423]

    Under cross-examination by the Crown, following the grant of leave under s.38, Mr Quiney agreed that he had spoken to a police officer about these events “within 10 minutes” of having observed the woman and the cars about which he had given evidence (T225). Soon after, Mr Quiney was asked (T226-227):

66. [424]

    Soon after, the Crown asked Mr Quiney (T227.19):

67. [425]

    The Crown then asked Mr Quiney about a telephone conversation allegedly had by him with a police officer on 24 April 2013 (T227-229):

68. [426]

    Mr Quiney maintained under cross-examination by the Crown that he had been shown individual photographs of females and males at the police station in 2013.

69. [427]

    In re-examination, Mr Quiney confirmed that he was walking to his friend’s place to watch the rugby league match which generally started at 4.00 pm every Sunday (T239). The Crown asked Mr Quiney (T240):

70. [428]

    A Channel 9 document confirmed that the telecast of the City v Country Rugby League match on 21 April 2013 was scheduled to commence at 4.00 pm (Exhibit CB; T585). A further document provided by Channel 9 confirmed that the kick-off in the City v Country match actually took place at 4.05 pm on 21 April 2013 (T778).

71. [429]

    Before considering submissions made about Mr Quiney’s evidence, it is appropriate to refer to the evidence of Peter Woods, who was called in the defence case.

72. [430]

    Mr Woods gave evidence that he attended the apartment of a friend, Andrew Wolford, at 10 Parkes Avenue, Werrington on the afternoon of 21 April 2013 and that Mr Quiney also attended that day.

73. [431]

    Having arrived at about 3.25 pm - 3.30 pm, he and Mr Wolford watched television for a while and then walked to the bottle shop in Victoria Street, Werrington which was “a 5 minute walk there and back when you’re in a hurry” (T1002). The two men purchased a quantity of beer and returned to the apartment. Senior Counsel for the Accused asked Mr Woods about what happened on his return (T1002):

74. [432]

    About five minutes after he heard the screaming, Mr Woods said that Mr Quiney arrived at the apartment at 10 Parkes Avenue. In the course of conversation, Mr Quiney said that he “ran into a hot chick in the driveway” (T1003).

75. [433]

    Mr Woods gave evidence of his observations of thick black smoke coming from the middle block of units and the arrival of the fire brigade and ambulance.

76. [434]

    Under cross-examination by the Crown, Mr Woods was asked about Mr Quiney’s arrival time at the apartment (T1007):

77. [435]

    Mr Woods repeated soon after that Mr Quiney “was there before the kick off” (T1008.11).

78. [436]

    Sergeant Michael Marinello gave evidence concerning his involvement with Mr Quiney during the investigation. Sergeant Marinello denied that he had shown Mr Quiney any photographs when he took a statement from him on 24 April 2013 (T284). He denied that he had told Mr Quiney, at any time, that any of the information which Mr Quiney had given was irrelevant and of no importance (T284). He said that he did not omit any of the information given by Mr Quiney from Mr Quiney’s statement (T284, Exhibit AQ).

79. [437]

    The potential significance of Mr Quiney’s evidence concerned his observation of a female leaving the Werrington apartment block from the Albert Street exit. The defence submission was that Mr Quiney’s evidence is reliable and that it is at least reasonably open that the woman seen by Mr Quiney was the attacker. It was submitted that the evidence of Mr Quiney should be taken with that of Ms Drzewiecki, in that the descriptions provided by each of them were similar and did not resemble the Accused.

80. [438]

    It was submitted for the Accused that the evidence of Mr Woods provided corroboration of Mr Quiney’s account, in particular by reference to Mr Quiney’s observation of “a hot chick” leaving the Werrington apartment block. The defence submission was that it was at least reasonably open that this woman was the attacker and that the description of her was significantly different to the Accused. It was submitted that Mr Quiney’s account of his conversation with police ought be accepted, and that it should be noted that the police did not exhaustively pursue the unit occupants in Albert Street as a result of what Mr Quiney had told them.

81. [439]

    The Crown submitted that Mr Quiney’s evidence, in particular with respect to the timing of his observation, was unreliable and wrong. The Crown submitted that the telecast of the football match commenced at 4.00 pm, with the kick-off at 4.05 pm. It was emphasised that the evidence of Mr Quiney and Mr Woods placed Mr Quiney inside Mr Wolford’s apartment at the time the football match had commenced. The Crown submitted that the murder occurred at about 4.25 pm - 4.27 pm so that whoever it was that Mr Quiney had observed, she was not related to the killing. The Crown submitted that the Court would accept the evidence of Sergeant Marinello where it was in conflict with that of Mr Quiney.

82. [440]

    I have given careful consideration to the evidence of Mr Quiney both on its own, and in conjunction with other evidence which bears upon the topic, including that of Mr Woods. I am satisfied, beyond reasonable doubt, that the fatal attack did not commence until soon after 4.25 pm. This is established categorically by the timing of the “000” calls made by Mr Morris and Ms Drzewiecki. Accordingly, any screaming associated with the attack did not occur until that time. Obviously, smoke emerging from the building did not result until some time after then.

83. [441]

    I am also satisfied, beyond reasonable doubt, that the televised City v Country Rugby League match commenced soon after 4.00 pm. Mr Woods had contacted Mr Quiney at about 3.45 pm to ask him to come to Mr Wolford’s apartment to watch the football with his friends. Mr Quiney set out on that journey (which ought to have taken about 10 minutes) soon after then.

84. [442]

    I am satisfied that Mr Quiney passed by the Werrington apartment block, on the Albert Street side, between 3.50 pm and 4.00 pm. Mr Quiney may well have observed a woman leaving the apartment block on the Albert Street side at about that time. It was, after all, a large apartment block with multiple units. Observation of a person leaving such a building was, in itself, unremarkable. If Mr Quiney heard any scream at about that time, it was not related to the murder. I accept that Mr Quiney continued his journey on foot to his friend’s apartment, arriving there soon after 4.00 pm.

85. [443]

    It is clear that much activity occurred in and around the Werrington apartment block by 4.30 pm that day. The attacker had set alight to her victim and smoke was emanating from the building. The fire brigade, ambulance and police attended with persons leaving the building in the context of a fire inside the premises. I accept that Mr Quiney and Mr Woods observed certain events, from the balcony of their friend’s apartment, which were connected with these activities. However, these events occurred a significant time after the attacker had left the building.

86. [444]

    In addition to these fundamental temporal problems, there are a number of significant internal difficulties with the evidence of Mr Quiney. Answers were volunteered by him in cross-examination which painted a significantly different picture to that contained in his police statement dated 24 April 2013. To the extent that Mr Quiney asserted that the police officer taking his statement had declined to insert material as it was not relevant, I do not accept Mr Quiney’s evidence. Sergeant Marinello denied that he had acted in that way and I do not consider that he omitted material which may have been of potential relevance to an investigation which was still in its early days. Nor do I accept Mr Quiney’s evidence that he was shown photographs of persons by the police.

87. [445]

    A further fundamental difficulty with Mr Quiney’s evidence emerged under cross-examination by the Crown, in the form of his memory problems flowing from a brain injury. This aspect casts a very great shadow over the reliability of Mr Quiney’s evidence.

88. [446]

    I do not accept that Mr Quiney made his observations of a woman leaving the Werrington apartment block, via the Albert Street exit, after 4.25 pm on 21 April 2013. By that time, Mr Quiney had already arrived at his friend’s apartment and the football match was well underway. Support for this is to be found in the evidence of Mr Morris, who himself was watching the football match when he heard sounds outside his apartment door which attracted his attention, and involved him in the terrifying event taking place outside his front door (see [365] above).

89. [447]

    I do not consider that Mr Woods’ evidence supports the defence case in the sense of corroborating Mr Quiney’s account. Mr Woods’ evidence fortifies a conclusion that Mr Quiney was in Mr Wolford’s apartment at the time when the killer left the stairwell after murdering Helen Lee.

90. [448]

    The evidence of Mr Quiney, in my view, does not bear upon the issues which the Court must decide in this trial. It is simply irrelevant. For similar reasons, I reject the defence submission that more should have been done by police to pursue unit occupants in Albert Street as a result of anything they had been told by Mr Quiney. The evidence discloses that police did undertake a canvass and delivered letters to residents which sought assistance from any person with information. I am satisfied that no more than this could have been reasonably expected, especially given the conclusion which I have reached concerning the lack of relevance of Mr Quiney’s information and its unreliability.

91. [449]

    The crime scene in the stairwell of the Werrington units was closely examined after the murder for forensic evidence which may have served to identify the killer. The Crown submits that the effect of the forensic evidence was that it is neutral in that it does not serve to implicate the Accused nor to exculpate her by pointing in the direction of another attacker. The defence submitted that the forensic evidence was not neutral but that, in a number of important respects, it pointed away from the Accused.

92. [450]

    The principal areas of forensic evidence relied upon by Senior Counsel for the Accused are:

93. [451]

    In relation to the fingerprint issue, Detective Senior Constable Staples gave evidence (T561-564, T837-840) and a number of statements and other documents were tendered (Exhibits BU and 20).

94. [452]

    Ms Drzewiecki gave evidence that the attacker had grabbed the railing briefly with her left hand (T97), although she did not assert that the attacker had bare hands. Mr Morris stated initially that he did not recall seeing the attacker’s hands (T61), although he said later that the attacker was not wearing gloves (T76). Mr Truupold made no observations of the attacker’s hands and Mr Hill did not say anything about them either. As did the parties, I will proceed upon the basis (based upon the evidence of Mr Morris) that the attacker was not wearing gloves, although the evidence in this regard is not entirely clear.

95. [453]

    Against this background, I note that there is no evidence of the discovery of the Accused’s fingerprint or fingerprints on the railing.

96. [454]

    In assessing the significance of this evidence, I bear in mind that a number of areas were examined, but only a limited number provided fingerprints which were suitable for comparison. It is not, of course, the case that the fingerprint or fingerprints of every person who touched the handrail (including the attacker) would be apparent and identifiable. There are many variables which bear upon the presence of fingerprints which are capable of being detected and utilised for identification purposes.

97. [455]

    Put simply, the fact that the fingerprint or fingerprints of the Accused were not located on the handrail is not evidence of the negative - that the Accused did not touch the handrail.

98. [456]

    Although the absence of fingerprints remains a factor to be taken into account for the purpose of determining whether the Crown has discharged the criminal standard of proof, it is not a factor which provides any real assistance to the Accused. In my view, the Crown submission that the fingerprint evidence was neutral is accurate.

99. [457]

    The DNA evidence is of greater complexity. The focus of attention was a partly burnt match stick located on the middle landing of the stairwell. Photographs of the match stick in location are contained in Exhibit BH and the match stick itself is Exhibit EB. As the matchstick had been lit without being further burnt, the unburnt wooden stem of the match stick was available for examination. It was common ground that the match stick was a Red Head Extra Long Safety Match as seen in Exhibit 11, a box of matches of this type.

100. [458]

     The evidence reveals that the attacker lit several matches for the purpose of setting alight to her victim. Two completely burnt match sticks were located at the crime scene on, or in the vicinity of, the deceased. The partly burnt match stick was the only one which could be subjected to DNA examination.

101. [459]

     Ms Sandra Trabuio, a scientist employed at the Forensic Biology DNA Laboratory of the New South Wales Forensic Analytical Science Service gave evidence in the trial. No challenge was made to Ms Trabuio’s qualifications and expertise.

102. [460]

     Ms Trabuio gave evidence concerning DNA examination of a swab R15 which had been taken from the shaft of the partly burnt match stick (Exhibit EB). She said that a DNA profile was recovered which was a mixture that originated from at least four individuals. The major component of the mixture had the same profile as Helen Lee. This major profile was expected to occur in fewer than one in one hundred billion individuals in the Australian population.

103. [461]

     Due to the low level and complexity of the minor component, Ms Trabuio said that further interpretation had not been carried out. DNA testing using the Y-filer system was unsuccessful.

104. [462]

     Ms Trabuio explained the mechanisms whereby DNA could be transferred, including direct touching of an object and secondary transfer, being a form of indirect transfer (T700-701). The Crown asked Ms Trabuio to make certain assumptions which may explain how Helen Lee’s DNA came to be the major component of the mixture (T701):

105. [463]

     The Crown then asked Ms Trabuio questions concerning the possible mechanism whereby the minor components of at least three other persons, could come to be on the match stick shaft (T701-702):

106. [464]

     In cross-examination, Ms Trabuio was taken to the box of matches in evidence (Exhibit 11) for the purpose of examining the texture of a match stick. Mr Ierace SC asked Ms Trabuio questions concerning DNA transfer (T703-705):

107. [465]

     A report of Dr Mark Perlin dated 5 August 2016 was tendered without objection in the defence case (Exhibit 37). The qualifications and experience of Dr Perlin were not challenged. He was not required for cross-examination.

108. [466]

     Dr Perlin’s report reveals that data from Item R15, the swab from the partly burnt match stick, was subjected to analysis using the TrueAllele casework system.

109. [467]

     Dr Perlin concluded that the match stick shaft evidence data (Item R15) was consistent with at least three or four contributors. The computer separated a major 75% contributor genotype from the match stick shaft evidence. The main association between this major contributor genotype and the deceased was described statistically as 198 septillion times more probable than a coincidental match to an unrelated Asian person, and 63.9 octillion times more probably than a coincidental match to an unrelated Caucasian person.

110. [468]

     Genotypes separated from the match stick shaft evidence were compared to the provided reference genotype for the Accused. The likelihood ratio was one in 14 million for the (less exclusionary) minor contributor.

111. [469]

     Based on the results described in the report, Dr Perlin said that the Accused is statistically excluded as a contributor to the match stick shaft evidence (Item R15) (Exhibit 37, pages 3-4).

112. [470]

     Considerable emphasis was placed upon this evidence in the defence closing address. It was submitted that this evidence served to exclude the Accused as the attacker in a manner which assisted a conclusion that the Crown had not established the guilt of the Accused beyond reasonable doubt.

113. [471]

     It was submitted for the Accused that the evidence of Ms Trabuio and Dr Perlin, in combination, was such that the Court would conclude that the ungloved attacker may well have been one of the partial contributors whose DNA was excluded as being that of the Accused by Dr Perlin. It was submitted that this evidence was not neutral, but constituted significant pro-defence evidence. It was submitted that the attacker had bare hands and had struck the match with sufficient force (and thus pressure) to light the match, with pressure being the main factor favouring the direct transfer of DNA. Further, the surface of the match, being porous and rough, was ideal for capturing DNA. The match had no blood stains, thereby effectively eliminating blood as being the source of the deceased’s DNA on the match stick. Had there been a large quantity of the deceased’s blood on the match stick, one might expect the blood to swamp any other DNA, but that was not so.

114. [472]

     The Crown submitted that this evidence was neutral. It was said that there were a number of scenarios available to explain the conclusions reached by Ms Trabuio and Dr Perlin so that this evidence was not, in reality, evidence of any substance which assisted the Accused.

115. [473]

     The Crown submitted that the DNA evidence did not mean that the Accused did not touch the match stick. There were a number of ways whereby a person can touch an object and not leave DNA. The Crown submitted that none of the factors, when combined, founded a conclusion that the Accused would inevitably have left a detectible DNA profile. It was noted that such a proposition had not been put to Ms Trabuio in cross-examination.

116. [474]

     The Crown submitted that the fact that the DNA of three unknown persons was detected in low levels did not mean that these three people were involved in the murder, and in striking the match. There was, of course, only one attacker.

117. [475]

     It is appropriate to infer that the subject match stick was one of several brought to the premises by the attacker for the purpose of use in the commission of the crime. Burnt match sticks of a similar type were located elsewhere, supporting a conclusion that those match sticks were the ones which actually set fire to the deceased.

118. [476]

     It should be inferred that an attempt was made to strike the subject match given that the head of it, at least, was burnt. It may be significant that it was located on the middle landing of the stairwell below the area where the fatal attack occurred, although an explanation as to how it got there can involve speculation only.

119. [477]

     The subject match does not appear to be stained. It is clear that it bears the DNA of Helen Lee as the major contributor. At least three other minor contributors have been referred to. Dr Perlin’s report served to exclude the Accused as a minor contributor.

120. [478]

     A fundamental assumption in the defence scenario is that the attacker had bare hands at the time when the match was struck. As I have noted earlier (at [452]), the evidence on this aspect is not entirely clear, based as it is upon Mr Morris’ observation on a matter of detail. However, closing submissions were made on both sides upon the basis that the attacker had bare hands, so I will also proceed to consider the evidence on that basis.

121. [479]

     In my view, the reliance upon this evidence by the Accused involves a process of speculation and not the drawing of inferences. As Ms Trabuio’s evidence demonstrates, the match stick could have picked up the DNA of Helen Lee in a number of ways.

122. [480]

     The evidence does not suggest that it was inevitable that the Accused’s DNA would have been detected on the match stick shaft if she had held it. This is a most important aspect when an argument is put that the absence of the Accused’s DNA indicates that she never touched the item.

123. [481]

     I am satisfied that the Court should not proceed upon the basis that the attacker’s DNA would inevitably have been deposited on the match stick. This is not a conclusion arising from the evidence, nor was the proposition put to Ms Trabuio in cross-examination on behalf of the Accused.

124. [482]

     The fact that there are at least three minor contributors to the DNA reinforces the capacity of DNA to be transferred in a number of ways to a surface such as this match stick.

125. [483]

     It will be necessary, in due course, to take into account this defence submission cumulatively with others in considering whether the Crown has proved its case beyond reasonable doubt. The Accused may rely upon this evidence as part of an overall submission which may be based on several pieces of evidence.

126. [484]

     However, in my view, the DNA evidence relating to the match stick is, in truth, neutral in its operation in this trial. It is clearly the case that, in some way, the DNA of Helen Lee came to be on the match stick as the major DNA component. Beyond that, I consider that a process of speculation is involved to treat this evidence as being, in some way, exculpatory of the Accused.

127. [485]

     It is clear from the earlier examination of Monis’ planned movements on 21 April 2013, that the Accused was not part of his activities on that day. Monis had met with Mr Hossein-Noori and AK earlier that week and had planned a type of family day out with their families and Monis’ sons on 21 April 2013.

128. [486]

     Monis deceived Mr Hossein-Noori and AK by not telling them about his relationship with the Accused which, by that time, was very close and involved regular access visits involving each of them and their respective children.

129. [487]

     It would have been simple enough, and might be expected, that a family day out such as that which took place on 21 April 2013 would have included the Accused, and perhaps her daughter. However, that was not Monis’ plan.

130. [488]

     It is notable that the access visit on 21 April 2013 was the first one which had taken place since August 2012 where the Accused did not participate. The evidence does not suggest that there was any special event for the Accused which was scheduled to take place on 21 April 2013, so as to explain why she was left out of the planned family day. Of course, the Crown submits that the Accused was not involved in Monis’ activities that day because Monis and the Accused had planned that she would be the killer.

131. [489]

     It is clear that the Accused was not present at Monis’ Werrington unit at about 10.00 am on 21 April 2013 when Helen Lee left the two boys with Monis. The video taken by Monis of this event bears this out.

132. [490]

     One of the Accused’s neighbours at her Croydon unit complex recalled seeing her at Croydon at about 11.40 am on 21 April 2013 (T722).

133. [491]

     At about 10.58 am, the Accused spoke to Monis by telephone with a call duration of 60 seconds (Exhibit BW). At that time, the Accused was in the Ashfield area and Monis was in the Werrington area.

134. [492]

     Between 1.52 pm and 1.54 pm, the Accused attempted to make a number of telephone calls from a payphone in The Strand, Croydon to her parents’ address at Belmore (Exhibit BW).

135. [493]

     There was no further telephone call between the Accused and Monis until 7.10 pm when the Accused, at Ashfield, called Monis with a four-second call duration (Exhibit BW).

136. [494]

     At 7.18 pm, the Accused, at Ashfield, attempted to ring Monis with the same being attempted again a minute later (Exhibit BW).

137. [495]

     As mentioned earlier (at [296]), at 8.00 pm, the Accused is seen on CCTV entering Croydon Railway Station and reading the train timetable. She then leaves the station and walks on The Strand, pausing in front of a camera and playing with her hair (Exhibits BN and BP).

138. [496]

     At 8.22 pm, Monis rang the Accused with a call duration of 50 seconds (Exhibit BW).

139. [497]

     At 9.14 pm, the Accused is observed on CCTV at Kingswood Railway Station. It may be inferred that she has travelled from Croydon to Kingswood by train. Between 9.14 pm and 9.19 pm, the Accused is seen walking around various parts of Kingswood Railway Station before finally walking towards the Great Western Highway (Exhibit BQ).

140. [498]

     I infer that the Accused was walking in the direction of the Nepean Hospital as she left the Kingswood Railway Station (Exhibit BR) for the purpose of visiting Monis in hospital. However, at 9.22 pm, Monis spoke to the Accused by telephone and the Accused did not attend the hospital. At that time, Monis was in the company of the police officers who had interviewed him. I infer that Monis did not want the police to meet or talk with the Accused at that time and thus he did not tell the police about her existence, let alone the fact that she was close to the Nepean Hospital at that time. It is difficult to understand why this would happen if the Accused was ignorant of the murder and had any genuine concern about her partner, who had been taken to hospital after an accident.

141. [499]

     At 9.22 pm, the Accused, at Kingswood, attempted to call Monis. Monis replied immediately thereafter with a call duration of 115 seconds taking place between Monis and the Accused.

142. [500]

     At 10.19 pm, Monis rang the Accused again with a conversation of 93 seconds duration occurring. Monis is depicted in a photograph of him and police officers leaving Nepean Hospital with Monis talking on the phone to the Accused (Exhibit AY).

143. [501]

     At 11.49 pm, Monis again rang the Accused with a call duration of 121 seconds (Exhibit BW).

144. [502]

     Two things may be said by reference to the evidence considered so far under this heading. Firstly, the telephonic and CCTV evidence placed the Accused at Croydon in the early afternoon, and at Croydon again after 7.00 pm on the evening of 21 April 2013. There is no telephone or CCTV evidence which places the Accused at Belmore in the intervening period and, in particular, at about 4.25 pm.

145. [503]

     Secondly, there was no telephone contact between Monis and the Accused between the late morning and the mid-evening, by which time Monis was at Nepean Hospital. Although Monis told the Accused in his telephone conversation with her during the police interview that he was at hospital, he refused to tell the police about his relationship with the Accused or the fact that she had, by about 9.15 pm, come to the vicinity of the Nepean Hospital.

146. [504]

     I have already concluded, to the criminal standard, that Monis planned and put into effect the murder of his former wife. An issue which arises for consideration in the trial is what light is shed on the role of the Accused in the murder, as a result of Monis’ unwillingness to allow her to come into contact with the police that evening or even tell police of her existence. In my view, consideration of this question operates strongly against the Accused.

147. [505]

     On 20 June 2016, the Accused gave notice for the purpose of s.150 Criminal Procedure Act 1986 of her intention to rely upon alibi. The alibi notice (Exhibit DB) stated that the Accused was, at the time of the killing, not in Werrington but at her parents’ address at Belmore. The notice said that the persons present at that time were:

148. [506]

     The Crown called John Aspros to give evidence.

149. [507]

     The Accused’s daughter and Kyriacou Fakih gave evidence in the defence case.

150. [508]

     No submission was made that any consequence should flow from the failure of the Accused’s father, Tom Droudis, to be called as a witness. His state of health served as a reasonable explanation for him not being called.

151. [509]

     The Accused did not give evidence in the trial. I keep in mind the direction referred to earlier in this judgment that no adverse inference should be drawn from the absence of evidence from the Accused concerning alibi or any other topic. The Crown bears the onus of proving the guilt of the Accused, including proof to the criminal standard that she was at Werrington at about 4.25 pm on 21 April 2013 attacking and killing Helen Lee.

152. [510]

     As mentioned, the Crown called John Aspros as a witness in the Crown case. The evidence of Mr Aspros gave rise to a number of applications and rulings: R v Droudis (No. 4) [2016] NSWSC 1150; R v Droudis (No. 5) [2016] NSWSC 1211; R v Droudis (No. 6) [2016] NSWSC 1263.

153. [511]

     Mr Aspros is the Accused’s older brother. He has suffered from schizophrenia since the mid-1990s. Before the Court is a statement of a general practitioner, Dr Richard Sue, dated 10 December 2013 (Exhibit CO) and a certificate of Dr Joanne Ferguson, psychiatrist, dated 25 February 2014 (Exhibit CP). Both medical practitioners attest to Mr Aspros’ mental health issues and the treatment which he has received for that condition. Neither Dr Sue nor Dr Ferguson were required for cross-examination.

154. [512]

     Both Dr Sue and Dr Ferguson referred to the possibility that Mr Aspros’ condition may bear upon his memory and cognitive ability. Dr Sue said that, in his opinion, Mr Aspros appeared quite normal with respect to his memory and cognitive ability. He considered that he would be a reliable witness assuming he has had his medical treatment. Any evidence he provided, when fully medicated, could be considered reliable, relevant and fair.

155. [513]

     Dr Ferguson indicated that, in January 2014, she had undertaken specific cognitive testing of Mr Aspros. She expressed the opinion that he would cope with giving testimony in court.

156. [514]

     Accordingly, neither Dr Sue nor Dr Ferguson pointed to any underlying medical difficulty with Mr Aspros giving reliable evidence.

157. [515]

     The principal issue arising from the evidence of Mr Aspros concerned his memory of where the Accused was on the afternoon of 21 April 2013, and the associated question as to when he had last seen her at the time he was first spoken to by police on the late evening of 21 April 2013.

158. [516]

     It was the evidence of Detective Senior Constable Megan Oxley (previously Cox) that she accompanied Sergeant Phillip Buchardt on the late evening of 21 April 2013 when they visited the Belmore address of the Accused’s family. Senior Constable Oxley said that police arrived at about 11.45 pm and knocked on the door. A male, who identified himself as John Aspros, opened the door. Senior Constable Oxley gave evidence of the conversation which then took place with Mr Aspros (T169-170):

159. [517]

     Sergeant Buchardt was seriously ill at the time of the trial and I admitted into evidence an investigator’s note of Sergeant Buchardt dated 22 May 2013 (Exhibit EF) together with his statement of 18 December 2013 (Exhibit EG). I determined that the evidence of Sergeant Buchardt, as to what Mr Aspros had said to him about the last time he (Mr Aspros) had seen the Accused, would be admitted as truth of the fact that Mr Aspros said words to that effect to Sergeant Buchardt on the late evening of 21 April 2013: R v Droudis (No. 12) [2016] NSWSC 1330.

160. [518]

     Mr Aspros gave evidence concerning the time when the police came to speak to him. Submissions were made on behalf of the Crown and the Accused concerning the care needed in approaching the evidence of Mr Aspros. Mr Aspros had difficulty with recalling events and this bears upon the reliability of his evidence, given in September 2016, concerning events which occurred in April 2013.

161. [519]

     The Crown submitted that the evidence of the police officers should be accepted as to what Mr Aspros told them on the evening of 21 April 2013 and that nothing in the evidence of Mr Aspros contradicted that evidence.

162. [520]

     It was submitted for the Accused that John Aspros was not a reliable witness due to his schizophrenia, and that there was no recording or adopted account of Mr Aspros as to what the police said of the conversation with Mr Aspros late on the evening of 21 April 2013. It was submitted that the Court would not accept the evidence of the police account of what Mr Aspros had allegedly said concerning the presence or absence of the Accused on the day of the murder.

163. [521]

     I am satisfied that Mr Aspros had some recollection of the police visit and that he had told them the truth (T348). There was difficulty experienced by him in providing any detailed account from his present memory of the events.

164. [522]

     However, a number of features are important. Firstly, it is clear that Mr Aspros understood that police were looking for the Accused as, after the police had attended the house late on the evening of 21 April 2013, he used the landline telephone to contact the Accused and advised her of the police visit (Exhibit C, paragraph 52).

165. [523]

     Secondly, there is evidence of visits by Mr Aspros and the Accused to the markets, including evidence to this effect from the Accused’s daughter (T348-349, T379). Further, there is evidence of a telephone call being made by the Accused from the Sydney Markets on Saturday, 20 April 2013, which points to her being present at the markets at that time (T849). It was submitted for the Accused that this pointed to unreliability in Mr Aspros’ account to police, in that he said they had been at the markets on Friday when it had actually been Saturday, 20 April 2013.

166. [524]

     I approach this part of the evidence upon the basis that I am satisfied of the accuracy of the account given by Senior Constable Oxley, and supported by Sergeant Buchardt. I am satisfied that Mr Aspros told police late on the evening of 21 April 2013 that he had not seen the Accused since “last Friday at the market”. I accept that the visit to the markets had been on Saturday, 20 April 2013 and not the Friday. However, the important feature is that Mr Aspros told police that the last time he had seen his sister was at the markets. Importantly, he did not tell police that he had seen his sister earlier on the day of the conversation with the police, Sunday, 21 April 2013.

167. [525]

     The question is whether the Court should accept as reliable what Mr Aspros said that evening to police concerning the last time he had seen his sister. The evidence of Dr Sue and Dr Ferguson indicated that Mr Aspros was capable of giving a reliable account. Further, Mr Aspros did not give a contrary version in evidence at the trial. It may be said, of course, that what Mr Aspros said at the trial, more than three years after the event, is of limited reliability and weight. That is not a reason to discount the reliability of what he said to the police with respect to events just a few hours before on 21 April 2013.

168. [526]

     I have reached the conclusion with respect to the evidence of Mr Aspros that what he said to police on the evening of 21 April 2013 is reasonably reliable and does not support the Accused’s alibi that she was at the Belmore premises at the time of the murder.

169. [527]

     I turn to the alibi witnesses called in the case for the Accused.

170. [528]

     The Accused’s daughter gave evidence. She was 12 years old in April 2013 and 15 years old at the time of giving evidence. Her evidence was given by audio-visual link from a remote facility, and I keep in mind the warnings required by law with respect to that form of evidence: s.306ZI Criminal Procedure Act 1986.

171. [529]

     Senior Counsel for the Accused took particular care to ask questions in a non-leading fashion in examination-in-chief. He commenced with events which the Court understood to have taken place on the evening of 22 April 2013. She said that she thought she had stayed the previous Saturday night at her grandparents’ place (T945). Mr Ierace SC asked (T945):

172. [530]

     Further questions were asked in which the Accused’s daughter said that her grandparents, her uncle (John Aspros) and “Kiki” (Ms Fakih) were also there that day, which was during school holidays. She said that “Kiki” was a regular visitor to her grandparents’ house. She said that her mother had come to the house that day. Mr Ierace SC asked (T948):

173. [531]

     In cross-examination, the Accused’s daughter was asked about the passage of time between April and November 2013, when police first spoke to her about these events. The Senior Crown Prosecutor asked (T951):

174. [532]

     The Crown asked about what the witness had said to police in November 2013 (T951):

175. [533]

     The Crown reminded the Accused’s daughter that she had told police, in November 2013, that her mother had driven her from Croydon to Belmore in the black Jeep on this day, but she said that that was wrong (T952). I keep in mind, of course, that Monis was driving the black Jeep on 21 April 2013 and it had been in his possession from late morning until late afternoon when he intentionally collided in the black Jeep with another vehicle near the Penrith Police Station.

176. [534]

     The Crown asked about an incident concerning her grandfather (T970):

177. [535]

     A little later, the Crown asked (T972):

178. [536]

     The Crown then reminded the Accused’s daughter of what she had told police during the interview in November 2013 and she confirmed that she was doing her best to tell the truth to the police at that time (T973.5).

179. [537]

     The Accused’s daughter said that whenever she accompanied her mother to the Werrington apartment block, her mother would press the buzzer and Monis would speak through the intercom and let them in. She did not ever see her mother open the door downstairs to get into the stairway as “Monis had the key” (T974-975). When she and her mother would arrive and Monis was already upstairs in the unit, she had never seen her mother open the door with a key (T975). She said that her mother had “never had a key for it” (T975.36).

180. [538]

     The Accused’s daughter said that both she and her mother had a hijab which they would use for prayer and when going to a Mosque (T975).

181. [539]

     She regarded Monis as her stepfather and saw him in a fatherly role (T975-976). The Crown asked (T976):

182. [540]

     In assessing the evidence of the Accused’s daughter, I keep in mind that the principal issue concerns the whereabouts of the Accused at about 4.25 pm on Sunday, 21 April 2013.

183. [541]

     The Crown submitted that the evidence of the Accused’s daughter was jumbled and did not provide any reliable account as to the whereabouts of the Accused on 21 April 2013. In any event, the Crown submitted that her evidence did not provide an alibi for the Accused at the time of the commission of the crime. The Crown submitted that the evidence did not assist the Accused at all.

184. [542]

     It was submitted for the Accused that the evidence of the Accused’s daughter, taken with other evidence, provided a reliable account as to the whereabouts of the Accused on the afternoon of 21 April 2013. It was submitted that the fact that criticisms could be made about her evidence supported the conclusion that her evidence was not manufactured but constituted her honest account of her memory which supported the Accused’s alibi.

185. [543]

     It was submitted for the Accused that the Accused’s daughter was an impressive young witness who made appropriate concessions as to her uncertainty in memory. It was submitted that, properly understood, her evidence supported the presence of the Accused at the Belmore premises on the afternoon of the killing, at a time when assistance was required with Tom Droudis.

186. [544]

     I have kept in mind that the witness was 15 years old and was giving evidence with respect to events some three years before. It is apparent that the account given by the witness in the trial was inconsistent, in a number of significant respects, with the account given by her to police in November 2013. The fact that her account in November 2013 may have been affected in some way by what she had heard in the intervening months from “Kiki” Fakih and/or Soula Droudis does not foster confidence in the reliability of the account which she had given in Court in September 2016.

187. [545]

     It is entirely clear that Monis and the black Jeep were nowhere near the Belmore premises on 21 April 2013. To suggest that Monis and the Jeep had been at the Belmore premises on that day raises a significant concern as to whether her evidence relates to events which occurred on the afternoon of 21 April 2013 or on some other day.

188. [546]

     A further difficulty is that “Kiki” Fakih was a regular visitor to the Belmore house so that events involving the witness’ grandparents, “Kiki” Fakih and, at times, the Accused were not uncommon. There was no particular feature about events on 21 April 2013. The evidence of the Accused’s daughter does not provide any reliable basis for such a conclusion.

189. [547]

     It may be that an event involving Tom Droudis, and his towel being dislodged giving rise to laughter, occurred at a time when “Kiki” Fakih was at the premises. However, the critical question is whether that event occurred on Sunday, 21 April 2013. There is, at the least, very grave doubt that such an event occurred on that day.

190. [548]

     An additional and fundamental difficulty for the Accused is that, even if it is accepted that it related to 21 April 2013, the evidence of the Accused’s daughter does not provide an alibi for the Accused for the time of the crime, 4.25 pm on 21 April 2013. She placed the Accused at the Belmore house until the “middle of afternoon” (see [530] above).

191. [549]

     Making all due allowance for the age of the witness and the passage of time, I do not consider that the Accused’s daughter has given a reliable account of the whereabouts of the Accused at about 4.25 pm on 21 April 2013 so as to support the notified alibi.

192. [550]

     Kyriacou “Kiki” Fakih gave evidence through a Greek interpreter. She appeared older and more frail than her 69 years, and told the Court that she had health problems.

193. [551]

     Ms Fakih sought to identify 21 April 2013 as being two weeks after the birthday celebration for Tom Droudis, said to have been on 7 April 2013. It was her evidence that the Accused was present at the Belmore house on 21 April 2013 on an occasion when Tom Droudis had showered but his towel slipped, thereby exposing his buttocks.

194. [552]

     Ms Fakih was spoken to by police about the events of 21 April 2013 in November 2013. Under cross-examination, Ms Fakih had difficulty, explaining how she came to remember that the event involving Tom Droudis’ buttocks occurred on 21 April 2013. She asserted that she had a clear memory of this event, yet could not remember when a far more significant event occurred at about the same time (on 12 April 2013), that is when Tom Droudis went missing, leading to a report to police by the Accused and Soula Droudis.

195. [553]

     Ms Fakih agreed that she wished the Accused to be reunited with her daughter, but denied that she had fabricated evidence to try and assist this reunification to occur (T997-998).

196. [554]

     The Crown submitted that the evidence of Ms Fakih was quite unreliable, if not untruthful, given her sympathy for the position of the Accused and her daughter. It was submitted that the evidence did not assist the Accused.

197. [555]

     It was submitted for the Accused that the evidence of Ms Fakih provided support for her alibi at the time of the crime. Although acknowledging that there were unsatisfactory features with respect to her evidence, it was submitted that it was sufficiently reliable to assist the Accused on the issue of alibi.

198. [556]

     As the tribunal of fact, I record my view that the evidence of Ms Fakih was quite unconvincing both in presentation and content. It may well be that an incident occurred at some time when Tom Droudis’ buttocks were exposed in the presence of the Accused, but there is no reliable foundation emerging from Ms Fakih (or other evidence) that such an event occurred on 21 April 2013.

199. [557]

     Ms Fakih was a highly unreliable historian with respect to other far more significant events, such as Tom Droudis going missing from the Belmore house, thereby requiring a police search on 12 April 2013.

200. [558]

     Ms Fakih was not, in my view, a disinterested witness who was doing her best to tell the truth in a manner which provided a reliable foundation for the Accused’s alibi.

201. [559]

     I do not accept the account given by Ms Fakih as being a truthful and reliable account of what occurred on 21 April 2013. Her evidence does not assist the Accused.

202. [560]

     A remaining body of evidence, which bears upon the issue of alibi, arises from the police interviews with Soula Droudis.

203. [561]

     On 25 April 2013, Detective Senior Constable Staples had a conversation with Soula Droudis at her Belmore residence. During the course of that conversation (Exhibit BI; T535, 842ff), Soula Droudis gave a confused and, at times, contradictory account concerning occasions when the Accused was present at the Belmore premises.

204. [562]

     On 19 November 2013, Detective Senior Constable Staples conducted a video-recorded interview with Soula Droudis at the Belmore premises (Exhibit 36; T582, 849). In this interview, Soula Droudis provided an account of the Accused’s relationship with Monis, in the course of which Soula Droudis made a number of disparaging comments about Monis. It was these comments which gave rise to the forced apology in both English and Greek extracted from Soula Droudis by Monis, and video recorded by the Accused, in February 2014 (Exhibits BZ and CA; T583) (see [342] above).

205. [563]

     In considering the accounts of Soula Droudis which are in evidence, it is necessary to keep in mind that what she has said on different occasions cannot be tested as she is deceased. Having considered the accounts given by Soula Droudis on these occasions, I do not consider that there is any reliable or satisfactory account from her as to the whereabouts of the Accused on the afternoon of 21 April 2013. In short, I do not consider that anything said by Soula Droudis supports the Accused’s alibi.

206. [564]

     Having considered a number of topics which are specific to the events of 21 April 2013, it is appropriate to turn to some broader matters which bear upon the issues which the Court must determine. The relationship between Monis and the Accused lies in this category.

207. [565]

     This topic was addressed at considerable length earlier in this judgment when examining the position of Monis. Much of what was said there has equal application to the position of the Accused. It is not necessary to repeat those details in this part of the judgment.

208. [566]

     The evidence demonstrates a highly unusual and long-standing relationship between Monis and the Accused which had been on foot since about 2007.

209. [567]

     Since the death of Female M in May 2012, and certainly by the time of the killing on 21 April 2013, the evidence establishes that the relationship between Monis and the Accused had cemented to a very considerable extent. The pattern of conduct in the months leading up to April 2013 surrounding the access visits best illustrates this point.

210. [568]

     On 9 April 2013 (12 days before the murder), Monis and the Accused were together, as depicted in the following photograph (Exhibit DV, photograph 6):

211. [569]

     After the killing, the close relationship continued with the events on 22 April 2013 when Monis, the Accused and the children were together at the Croydon unit exemplifying this.

212. [570]

     In the weeks and months after April 2013, the evidence demonstrated that Monis and the Accused were living together, and that they were both involved in activities and contact with the police in connection with the murder of Helen Lee.

213. [571]

     All of this supports the description provided by the Accused’s daughter in evidence that there was, as she saw it, a close family unit involving Monis and the Accused with Monis regarded by her as being her stepfather (see [539] above).

214. [572]

     Although Monis had been involved with other females in the years prior to 2013, the evidence points to the Accused as being the only female with whom he had an active relationship at the time of the killing.

215. [573]

     After the killing, Monis and the Accused acted jointly to make allegations against Helen Lee’s father (Exhibit CU). It is appropriate to consider these events in light of the finding which I have already made that Monis well knew who had murdered his former wife, given that he had planned the crime and had put it into effect.

216. [574]

     The most favourable construction of this conduct, from the point of view of the Accused, is that she was merely acquiescing unknowingly in what Monis was suggesting to her.

217. [575]

     However, I consider that the conduct of the Accused, in acting in this way, was far more damaging to her than this.

218. [576]

     The Accused had a history of acquiescing, and acting at Monis’ behest, in making the Sheikh Haron videos in 2008, in communicating with the relatives of deceased Australian servicemen and public officials in 2008 and 2009 and in protesting with Monis on different occasions outside Channel 7 (in June 2008) and outside the Downing Centre (in November 2009 and September 2013). In addition, the Accused uncritically assisted Monis to extract a filmed apology from her sick mother in February 2014.

219. [577]

     Although the Accused demonstrated an established pattern of acting at Monis’ behest, I do not consider that she was naive in her dealings with Monis. Consideration of evidence of her and Monis’ actions after the murder supports a conclusion that she (and Monis) both intended to deflect the police investigations of the murder by advancing allegations which each of them knew to be false.

220. [578]

     The Crown relied upon statements made by the Accused, in various recorded conversations, as constituting evidence of consciousness of guilt by reference to two topics:

221. [579]

     In approaching these topics, it is important to keep in mind that the Accused and Monis believed that their conversations were being recorded by police, with this belief being in place by 22 July 2013 at the latest.

222. [580]

     At 2.54 pm on 22 July 2013, the Accused had a telephone conversation (recorded under warrant) with a friend, in which the friend informed the Accused that police had contacted her (the friend) asking about the Accused. In the course of that conversation, the Accused said at one point (Exhibit EH):

223. [581]

     In a conversation between the Accused and Monis recorded by surveillance device at 5.18 pm on 22 July 2013 in the Clemton Park premises where they were living, the Accused, at one point, spoke noticeably more loudly as she directed comments to “Melanie and her team”, and complained that the police had approached Mr Aspros who has a mental illness (Exhibit EH). It may be taken that this was a reference to Detective Senior Constable Melanie Staples, whom the Accused understood was investigating the murder.

224. [582]

     At 6.17 pm on 29 July 2013, the Accused had a telephone conversation (recorded under warrant) with her cousin, Sue Droudis. In the course of the conversation, the Accused said at one point “and they’re probably listening to this conversation right now because my phone’s tapped and that’s fine” (Exhibit CW, page 6; Exhibit EH).

225. [583]

     In approaching these topics as suggested evidence of consciousness of guilt, I keep in mind the directions of law on this topic outlined earlier in the judgment (at [46]-[47] above).

226. [584]

     The conversations concerning possible explanations for the blood or DNA of the Accused at the crime scene occurred after the Accused had been served, on 31 October 2013, with a Summons under s.29 Crimes (Forensic Procedures) Act 2000, requiring her attendance at the Penrith Local Court on 21 November 2013 for the purpose of a DNA sample being obtained by way of buccal swab or hair sample (Exhibit CV).

227. [585]

     In R v Droudis (No. 11), I ruled that there was sufficient evidence to allow this aspect to be raised by the Crown by reference to consciousness of guilt. Having admitted the evidence and indicated that it was capable of being so used, the question now is whether the evidence should be found to demonstrate consciousness of guilt.

228. [586]

     In assessing the evidence, I will keep in mind my finding that Monis had planned the murder and knew full well who had carried it out at the time of the recorded conversation with the Accused on 31 October 2013.

229. [587]

     In the course of a conversation on 31 October 2013 with Monis recorded by surveillance device (Exhibit CZ), the Accused and Monis were discussing possible ways in which the blood of the Accused may have come to be at the crime scene. The Crown relied particularly upon the following conversation (Exhibit CZ, pages 5-6):

230. [588]

     The Crown submitted that this conversation involved the creation of a false explanation (which was being heard by the police) in the event that the Accused’s DNA was located at the crime scene in the stairway.

231. [589]

     With respect to the conversation between Monis and the Accused concerning the possible presence of her blood and DNA at the crime scene, it was submitted for the Accused that this is evidence of the Accused’s innocence. It was submitted that the Accused was exasperated by the Summons and supporting affidavit for the forensic examination, and questioned why the police had not approached her solicitor to interview her. It was submitted that Monis introduced the topic of the Accused having left hair and DNA at the unit complex, but her primary focus remained why the police had not approached her solicitor instead of summonsing her to court. It was submitted that, if the Accused was the killer, she would know that her blood was not at the crime scene so that this conversation actually constituted positive evidence of her innocence.

232. [590]

     I am persuaded that this part of the conversation assists the Crown as evidence of consciousness of guilt in accordance with the directions of law which I have applied. I accept that the Accused, with the encouragement of Monis, was discussing false possible explanations as to how the DNA of the Accused may have come to be at the crime scene. The Accused and Monis were saying this for the benefit of the police audience which they believed was listening to their conversation. This is best illustrated by Monis prompting the Accused that there had been a bleeding incident, which the Accused then embraced enthusiastically and with emphasis - “Oh, yeah, yeah, yeah, yeah, yeah”. Given the frenzied nature of the attack, the attacker would have been in no position to think that she had not left DNA at the scene of the crime.

233. [591]

     The second area of consciousness of guilt evidence, concerning alibi, commenced with a conversation recorded under warrant at 6.17 pm on 29 July 2013 between the Accused and her cousin, Sue Droudis (Exhibit CW).

234. [592]

     Sue Droudis informed the Accused in that conversation that the police had visited her that day and had discussed the Accused, including the fact that Monis appeared to have an alibi but the Accused did not (Exhibit CW, page 9). During the course of the conversation, the Accused said at one point, “And now by the way, now whatever conversation we are having, they are listening” (Exhibit CW, page 20). Once again, the Accused believed she was speaking to a police audience as well as to her cousin.

235. [593]

     Later, the Accused said to Sue Droudis, “They don’t like the fact that Michael [Monis] and I are united … that we’re close, because they don’t like it” (Exhibit CW, page 26).

236. [594]

     Later on the evening of 29 July 2013, Monis and the Accused had a conversation (recorded by surveillance device) from 8.55 pm (Exhibit CX). The Accused told Monis that her mother, Soula Droudis, had told her that she had “no alibi but you [Monis] have an alibi because you were with [his sons]” (Exhibit CX, page 1). The Accused said soon after, “I wasn’t with you and you can’t say I was with you. I don’t have an alibi” (Exhibit CX, page 2).

237. [595]

     At 5.20 pm on 31 October 2013, a conversation took place between Monis and the Accused (recorded by surveillance device) (Exhibit CY). This was the same evening when these two persons discussed possible explanations for the Accused’s DNA being found at the crime scene (see [587] above). It appears that the affidavit in support of the police application for forensic examination had raised an issue as to where the Accused had been between 11.00 am and 7.00 pm on 21 April 2013. Once again, I keep in mind that Monis well knew who had murdered Helen Lee.

238. [596]

     In the course of discussing this topic, Monis said (Exhibit CY, page 2):

239. [597]

     It may be seen that it was Monis who was leading the conversation on this topic. Monis suggested that Soula Droudis (who was ill) and Tom Droudis (who had Alzheimer’s Disease) might be called in aid as witnesses.

240. [598]

     Later in the conversation, Monis and the Accused returned to the question of a possible alibi for the Accused for the day of the murder, this time relating to a person at the Croydon premises as well as members of the Accused’s family (Exhibit CY, pages 23-27):

241. [599]

     Once again, Monis (who had his own ironclad alibi), was leading the conversation. The Accused was raising the prospect of someone at the Croydon premises who may be able to assist, but was not prepared to say what any conversation had been until she had an opportunity to speak to her solicitor.

242. [600]

     Towards the end of the conversation, Monis and the Accused discussed where the Accused may have been at particular times on 21 April 2013 (Exhibit CY, page 30):

243. [601]

     The Crown submitted that the Accused was generating what was a false alibi in these conversations, with the substantial assistance of Monis. It was submitted that the Accused was so acting because she was conscious of her own guilt of the murder.

244. [602]

     It was submitted for the Accused that this conversation assisted the Accused and pointed to her innocence. It was submitted that the discussion about a person at the Croydon premises fitted perfectly with what was put in cross-examination to Patricia Santa-Anna, a resident of the Croydon unit block.

245. [603]

     In approaching these conversations, I keep in mind four matters.

246. [604]

     Firstly, I am satisfied beyond reasonable doubt that Monis planned and put into effect the murder of his former wife. When he took part in these conversations, he well knew the identity of the killer.

247. [605]

     Secondly, both Monis and the Accused believed that the conversations which they were having were being listened to by investigating police.

248. [606]

     Thirdly, it was Monis who was leading the conversation on these topics and providing detail with which the Accused appeared, from time to time, to agree.

249. [607]

     Fourthly, I have found that Monis went to great lengths to create a rock-solid alibi for himself for 21 April 2013. If the Accused was not involved in the commission of the crime (in particular as the killer), it might be thought that Monis would have included her in his rock-solid alibi by inviting her along for the day’s activities with his friends and their families. I consider that this aspect plays a significant role in the determination of the trial itself. For the moment, I observe that what appeared to be happening in these conversations was Monis going to considerable lengths to place on record a possible alibi or alibis for the Accused, with the Accused appearing to adopt his suggestions.

250. [608]

     I have already expressed my conclusions with respect to the alibi witnesses called in the defence case, and the evidence of Mr Aspros and associated police witnesses on the question of what Mr Aspros told them on the night of 21 April 2013.

251. [609]

     The fact that I have rejected the alibi witnesses does not lead to a conclusion that the alibi itself was a concoction so as to constitute evidence of consciousness of guilt on the part of the Accused. That said, the entirety of the evidence concerning the Accused’s alibi, and in particular the conversations which she had on the topic principally with Monis in 2013, are damaging to the Accused.

252. [610]

     Having considered the matter by reference to the principles to be applied, I am persuaded that this evidence operates as evidence of consciousness of guilt on the part of the Accused. It demonstrates the tainted origin of the alibi relied upon by the Accused at trial. It was, in truth, a concoction developed by Monis in conjunction with the Accused.

253. [611]

     The Accused is not assisted by the fact that some evidence placed the Accused at her Croydon premises on the morning of 21 April 2013. Caroline and Anthony Ervin said that the Accused was hanging out washing in the backyard at the Croydon premises at about 11.40 am on 21 April 2013 (T722-723). Ms Santa-Anna did not agree with propositions put to her in cross-examination by Senior Counsel for the Accused concerning events said to have taken place at Croydon on the morning of 21 April 2013 (T454-459).

254. [612]

     The critical question concerns the whereabouts of the Accused between 4.25 pm and 4.30 pm on 21 April 2013. Her conversations with Monis provide strong support for a conclusion that the Belmore alibi was concocted by the two of them.

255. [613]

     I have mentioned earlier in the judgment the attendance of Monis and the Accused at Parramatta Police Station on 4 June 2013 (see [326]ff). I return to that topic to express conclusions about the conduct of the Accused on that occasion.

256. [614]

     I keep in mind again the finding made that Monis had planned and put into effect the murder of his former wife. What was being done on 4 June 2013 was entirely false to the knowledge of Monis and was intended to deflect the investigation from himself.

257. [615]

     However, the question is how this evidence operates in the present trial of the Accused. Was the Accused being manipulated naively by Monis in this way so as to provide a form of support for his false allegation against Helen Lee’s father? Or was the Accused complicit in a type of charade being played out with the police officer (and in his absence) with both Monis and the Accused intending to deflect the investigation from themselves?

258. [616]

     The Crown submitted that this conversation showed the Accused acting in a knowingly deceptive way in joining with Monis in the proffering of his false allegations. The Crown submitted that the two of them believed they were being recorded at the time of their discussion in the absence of police.

259. [617]

     It was submitted for the Accused that, if this was a candid conversation (a conversation in which the Accused did not expect that their conversation was being recorded), it would be a nonsense to suggest that she was the killer. It was submitted that, following an analysis of the conversation, in particular the parts in which the two are by themselves (the first 14 pages of the transcript), as a matter of logic, it must follow that the Accused was not the killer. If the Accused was speaking candidly, not only is she not guilty as a matter of law, she must be innocent as a matter of common sense. It was submitted that, if having regard to all the evidence, there is a reasonable suspicion that the Accused was speaking candidly, she must be acquitted.

260. [618]

     I do not accept the defence submission. Having considered the entirety of the evidence which touches on this issue, I am persuaded that what the Accused said and did on this occasion involved her deliberately and intentionally advancing false information to deflect the police. She was not acting naively. The Accused purported to corroborate Monis’ false allegation that Helen Lee’s father had threatened Monis outside the Court where the custody proceedings were being heard. Further, I accept that the Accused and Monis believed they were being recorded at the time of their discussion when the police officer left the room.

261. [619]

     These events occurred at a time when Monis and the Accused were living together, with both being closely involved in these events. I am satisfied that the Accused had a complete understanding of the true position at this time. Both Monis and the Accused recognised the need to explain how the attacker had entered the locked building and apartment. Although Helen Lee’s father was an unlikely suspect, both Monis and the Accused decided to advance his locksmith experience as being (in their minds) a possible answer to what was otherwise a fundamental problem for them as to how the killer had entered otherwise locked doors.

262. [620]

     In R v Droudis (No. 13), I admitted a body of evidence concerning the relationship between Monis and the Accused over a number of years, and their joint activities in that period for both tendency and non-tendency purposes. This evidence was detailed earlier in this judgment.

263. [621]

     The evidence has been admitted for non-tendency purposes to assist an understanding of the dynamics of the relationship of the Accused and Monis over a number of years, which included a number of examples of the Accused acting in a variety of ways at the direction or request of Monis, and factors bearing upon motive and her state of mind. Her conduct in that respect should be understood against the background of a person who converted to Islam as the result of her association with Monis, and with her maintaining a set of beliefs at the time of the killing on 21 April 2013 and beyond. Of course, it is not just her conversion to Islam which attracts attention, but the range of activities which the Accused undertook as a result of the influence of Monis over her, including acts which may be fairly described as reprehensible.

264. [622]

     The evidence contains a series of snapshots, along a timeline, of the Accused’s view of Monis and his beliefs. The evidence points strongly to the fact that the Accused was emotionally and romantically attached to Monis for a long period extending well into 2014, as exemplified by her letter of 22 April 2014 to him in custody (see [348]-[349] above).

265. [623]

     The Crown says that the Accused was so enthralled by and with Monis that she was prepared to act, in a range of extreme ways, to meet his desires and continue her relationship with him. I am satisfied that this was the case.

266. [624]

     As R v Droudis (No. 13) demonstrates, the tendency issue arose in this case in a most unusual setting. In approaching the use of the tendency evidence as the tribunal of fact, I keep clearly in mind the need for a calm and measured assessment of the actions of the Accused. The actions which she took in 2008 and 2009, in the 11 extremist videos and her persistent contact with relatives of deceased Australian servicemen, was reprehensible.

267. [625]

     The importance of this evidence, however, is not the dramatic impact of what the Accused did, and any condemnation of her conduct. Rather, it is the light which is shed by conduct of this type upon her interaction with Monis, and her preparedness to act, in a variety of extraordinary ways, at his request.

268. [626]

     With respect to the evidence relied upon by the Crown for tendency and non-tendency purposes, it was submitted for the Accused that the conduct in question occurred several years before the killing on 21 April 2013, with events which are relied upon after that date being very limited in their nature. It was submitted that a quantum leap was required to move from the Accused’s behaviour in 2008-2009 to a preparedness to kill Monis’ former wife.

269. [627]

     It was submitted that the Crown assertion that the manner of killing of the deceased had a religious meaning was not supported by the evidence, and that a more mundane explanation was available for the use of fire in the form of Monis’ planned insurance fraud.

270. [628]

     I am well satisfied that the tendency asserted by the Crown is demonstrated by these acts of the Accused over an extended period of time. They are not confined to activities in 2008-2009. They included, of course, the willingness of the Accused even in February 2014 to record Monis’ extraction of a grovelling apology from the Accused’s own mother (then very ill). By that time, each of Monis and the Accused had been charged with offences arising from the murder of Helen Lee. This provides some insight into the dynamics of the relationship between the Accused and Monis which had commenced in 2007 and continued, with heightened intensity, in 2012 and 2013.

271. [629]

     I am satisfied that the tendency evidence bears, as well, upon the state of mind and motive of the Accused. There is no doubt that Monis wished his former wife dead as at 21 April 2013. The evidence indicates that the Accused was at the closest and most intense level of her relationship with Monis at that time. The Accused and Monis were forging a family unit including their respective children.

272. [630]

     It is necessary to approach the tendency evidence, and its connection with the killing, with an understanding of the entire picture of the relationship between Monis and the Accused provided by the evidence.

273. [631]

     It is true that the conduct relied upon by the Crown for tendency purposes involved different conduct to that involved in the killing.

274. [632]

     However, the extreme religious views of Monis are not absent from the circumstances of the killing. There are aspects of the killing which have a religious flavour, at least in the distorted way in which Monis viewed things. Monis had formed the view that the custody of his sons would be resolved “in God’s court”. He had asserted to the Federal Magistrate and Helen Lee that an act of God would determine the matter. It seems clear from his writings (some repeated by the Accused) that Monis regarded himself as an instrument of God or a person who could give effect to God’s will.

275. [633]

     The killing involved a frenzied knife attack with multiple stab wounds being inflicted to the body of the victim, followed by the gratuitous use of fire. There is room to question whether Monis’ view of fire, illustrated in his correspondence about the Victorian bushfires, may be connected with the murder itself. However, the nature of the attack, involving two entirely different forms of attack, has a ritualistic flavour to it.

276. [634]

     To be added to this is the evidence of the eye witnesses that the female attacker was wearing Middle Eastern head dress, in the form of a hijab. The evidence of Mr Morris, which I accept, reveals an enraged female killer. This was no cold-blooded murder. These aspects provide support for the murder having ritualistic features related to religious beliefs.

277. [635]

     I have approached the evidence of the Accused’s activities in 2008 and 2009 with caution, guarding against excessive weight being given to it. In the result, the tendency evidence has played some part in my deliberations on the way to reaching a verdict in the trial.

278. [636]

     As already explained, I am satisfied beyond reasonable doubt, that Monis planned and put into action the murder of his former wife. I am satisfied beyond reasonable doubt that the attacker was a woman.

279. [637]

     What are the hypotheses advanced for consideration in the trial which are consistent with the innocence of the Accused? In using this terminology, I am not, of course, seeking to reverse the onus of proof. Rather, I will examine the evidence with the principles concerning circumstantial evidence in mind.

280. [638]

     A submission was developed for the Accused by reference to the evidence concerning Monis’ dealings with members of the Rebels OMCG. It was submitted that the investigating police had been unable to eliminate the direct involvement of OMCG members in the killing of the deceased. Reference was made to Monis soliciting members of that group in early 2013 to murder his former wife, with the evidence indicating that those efforts were rebutted. It was submitted, however, that Monis had in mind the means to pay for others to carry out the killing. It was acknowledged that Monis was not someone who had ready access to money, other than by persuading women who loved him to gift it or lend it to him, or to prevail upon their relatives for money which they would then provide to him or act as guarantor for him on a loan.

281. [639]

     It was submitted for the Accused that Monis did have an asset which was sure to interest a bikie or a group of bikies in the form of the new Harley Davidson motor cycle. It was submitted that the insurance payout which Monis expected to receive, arising from the fire associated with the killing, was intended as a means of paying the killer or killers with the motor cycle being used as security in the meantime. It was submitted that the cover for the killing would be a burglary gone wrong.

282. [640]

     Senior Counsel for the Accused submitted that such an arrangement was corroborated by the approaches Monis made in prison, following his arrest in November 2013, to a bikie-associated fellow prisoner and a violent gang-related prisoner. Monis had told those persons that if someone broke into the house of Helen Lee’s parents and killed her father, there would be items in the house which would amply reward the killer. It was submitted that the modus operandi revealed in this proposal, made after the murder of Monis’ former wife, shed light upon the arrangement which he had entered into for the purpose of the murder on 21 April 2013.

283. [641]

     Senior Counsel for the Accused noted that, when one of the Rebel OMCG members attended the residence of Monis’ former wife and her parents on 13 January 2013, he was riding Monis’ Harley Davidson. On 2 April 2013, during a fire safety inspection of the Ingleburn Chapter House of the Rebels OMCG, Monis’ Harley Davidson was photographed inside the club house.

284. [642]

     It was noted that Monis’ theft claim was rejected by the insurance company and that, on 16 June 2013, Monis was observed riding his Harley Davidson at a Rebels OMCG function. However, on 5 September 2013, a person associated with the Rebels OMCG was identified as riding Monis’ Harley Davidson motor cycle on a run to Perth from where, it was submitted, the motor cycle did not return.

285. [643]

     It was noted that on 5 July 2013, Monis asked the Accused to request her mother to lend him $10,000.00, but he did not indicate the intended purpose for the payment.

286. [644]

     It was submitted that there was evidence of some Rebels OMCG members having visited Monis’ Werrington unit. It was noted, as well, that Rebels OMCG members had been reluctant to provide information to police, in circumstances where it may be thought that they knew more than they were saying.

287. [645]

     The Crown submitted that this hypothesis was farfetched, in particular by reference to the manner of killing and the killer being a woman. Further, Monis had no funds and his conduct with the Harley Davidson motor cycle was not consistent with him having agreed to part with it as payment or security for payment to a hired killer. It was submitted that police had investigated the bikie hypothesis thoroughly, with no evidence resulting that assisted the Accused.

288. [646]

     I accept the unchallenged evidence that Monis solicited members of the Rebels OMCG in early 2013 to kill Helen Lee. The evidence is that these requests were not taken seriously and were rejected summarily. Nor do I consider that the Accused is assisted by Monis’ November 2013 attempts to have Helen Lee’s father murdered, with his proposals once again being rejected. The evidence of these November 2013 events does not support an argument that Monis had successfully recruited a bikie or bikies to kill Helen Lee in April 2013.

289. [647]

     One of the fundamental difficulties with this hypothesis, in my view, is the lack of means of Monis to pay for a professional killing. The evidence in the trial provided a thorough picture of Monis’ financial position over a number of years up to and including April 2013. Monis was in receipt of welfare or student payments for a significant period in the years leading up to 2013. His earlier activities as a spiritual healer and clairvoyant had ceased, certainly by 2010, if not before. The evidence indicates that Monis would obtain (or seek to obtain) financial assistance by way of loans from friends from time to time. There is no evidence that he had a capacity to pay for a person to carry out a murder, an act for which a substantial sum would be expected by way of payment, and usually in advance.

290. [648]

     There is evidence which indicates that Monis’ Harley Davidson motor cycle ended up being used in and after September 2013 by members of the Rebels OMCG, ultimately in Western Australia (T879). However, the evidence also indicates that Monis had possession of the motor cycle on 16 June 2013 when he was seen riding it at a Rebels OMCG event at the Cronulla fish markets (T590, 880). It would be very odd for the killer to leave the motor cycle with Monis some two months after the murder, if the motor cycle was somehow used to pay for a hired killing or as security for such a payment.

291. [649]

     Further, Monis was taking steps to recover the motor cycle after it had left his possession. He even attempted to persuade Detective Senior Constable Staples to wire up the Accused so that she could speak to Rebels OMCG members, with a view to Monis recovering the Harley Davidson (T622-628, T904-905). Unsurprisingly, Detective Senior Constable Staples would not proceed with Monis’ curious plan.

292. [650]

     These actions do not appear to be consistent with a person who had used the motor cycle as a form of payment or security for a contract murder.

293. [651]

     There is evidence as well that members of the Rebels OMCG did not hold Monis in high regard, considering him to be an eccentric character who may even have been a type of police undercover operative (see [228]-[233] above). Monis was not respected by members of the Rebels OMCG, so it may have been that there was no inhibition, on the part of club members, to simply deprive Monis of his motor cycle by September 2013.

294. [652]

     On top of these grave reservations about this hypothesis, there are further compelling features. I accept the Crown submission that it is difficult to believe that any contract murder, undertaken on behalf of a bikie group, would be executed by a woman.

295. [653]

     Further, it is farfetched to think that a paid killing would be carried out by means of a stabbing (18 times) followed by the setting alight of the body in an enclosed area. Such an approach would endanger the attacker as well as magnifying the prospect of immediate discovery of the crime.

296. [654]

     Further, it is difficult to conceive of a bikie crime carried out by a woman wearing a hijab. This was a hot-blooded and frenzied murder by an enraged female attacker.

297. [655]

     In my view, this hypothesis is based on speculation and not any inference reasonably arising from the evidence. The contract murder scenario can be put to one side.

298. [656]

     Senior Counsel for the Accused did not submit that a particular woman or women, who had been known to have associated with Monis, was a suspect for this crime. None of the female associates of Monis, whom had been identified in the evidence, was required to attend to give oral evidence. In these circumstances, no challenge was made to the various explanations involving alibis and other factors, which led to each of these women being excluded as a suspect for the murder.

299. [657]

     Rather, it was submitted that Monis was a secretive person who appeared to have a range of associations with females at different times, frequently simultaneously, so that the prospect of an unknown woman being used by him to murder his former wife was a reasonable hypothesis arising from the evidence. It was submitted that the Sheikh Haron videos demonstrated that Monis had inveigled a number of women to make videos and it was not known if police were able to locate all such videos.

300. [658]

     It was submitted that there is a very real possibility that there are women whose identity is not known who partook in such videos. Accordingly, it was submitted that this constituted a reasonable hypothesis as to how a female attacker may have come to have murdered the deceased.

301. [659]

     The Crown submitted that the evidence revealed a thorough police investigation whereby all women who had been associated with Monis in the years up to 2013 had been eliminated, by one means or another. The Crown submitted the defence hypothesis was speculative and fanciful.

302. [660]

     Detective Senior Constable Staples conducted a thorough investigation of females with whom Monis had been associated over the years (T727ff). I am satisfied that, as at 2012, Monis’ main relationships were with Helen Lee, the Accused and Female M, with these being three lengthy and overlapping relationships.

303. [661]

     Female M met Monis through his work as a spiritual healer in about 2002. She participated in one Sheikh Haron video in the persona of Sister Fatimah in about 2008 (T730-731). It was Female M who provided the finance for Monis to purchase his Harley Davidson motor cycle. Female M died in May 2012 (T732).

304. [662]

     Female P had an association with Monis over a number of years. Evidence was adduced at the trial that Female P was working at premises in the Sydney CBD from 9.00 am until after 7.00 pm on Sunday, 21 April 2013 (Exhibits DP and DQ). No challenge was made to this evidence and neither Female P, nor the witness who corroborated her employment on the day of the crime, was required to give evidence in the trial. Female P may be excluded as a suspect for the murder.

305. [663]

     Female C had some significant connection with Monis. She was referred to earlier in this judgment in the context of a type of cameo role where Monis called her to attend a child access visit in November 2012 (see [182]-[186] above). Female C had met Monis through his spiritual healing business. There had been contact over the years between them, but with long intervals between the contact. Detective Senior Constable Staples carried out investigations to ascertain the whereabouts of Female C on the afternoon of 21 April 2013. It was determined through call-charge records that the telephone tower activity with respect to Female C’s phone was consistent with her not being anywhere near Werrington at the time of the murder (T739).

306. [664]

     Female C was not required to give evidence at the trial with there being no submission put that she remained a suspect for the murder of Helen Lee. I am satisfied that Female C may be excluded as a suspect for the murder.

307. [665]

     Female B was identified during the investigation as a person who had some association with Monis. Female B had participated in a Sheikh Haron website video in the persona of Sister Husna (T741). Letters were obtained during the investigation which had been written by Female B to Monis in 2006-2008.

308. [666]

     Female B had met Monis in Adelaide several times when he flew over for a spiritual healing consultation with her.

309. [667]

     Female B informed Detective Senior Constable Staples that she was in Adelaide on 21 April 2013. Call-charge records were obtained in relation to Female B’s phone which confirmed cell tower activity at that time (T742). Police enquiries revealed that Female B had no contact with Monis since before May 2009, and she had no knowledge of the fact that Monis had children. Detective Senior Constable Staples excluded Female B as a suspect in the murder in these circumstances (T742).

310. [668]

     Female B was not required to give evidence at the trial. It was not submitted that she remained a suspect for the murder of Helen Lee. I am satisfied that she is excluded as a suspect for the murder.

311. [669]

     Female S was another person whom Monis had met in his capacity as an alleged spiritual healer. She subsequently had intimate contact with Monis over a period of time for about 18 months from 2007 (T742). Female S indicated that her last contact with Monis was around January to March 2009.

312. [670]

     Detective Senior Constable Staples had met Female S, whom she described as being very petite, being about 45 kg to 50 kgs in weight and less than 150 centimetres tall. Her appearance, including her ethnic origin, did not match the physical appearance of the attacker as described by the eye witness (T743).

313. [671]

     Once again, Female S was not required to give evidence at the trial. It was not submitted that she was a suspect for the murder. I am satisfied that she has been excluded as a suspect.

314. [672]

     Detective Senior Constable Staples said that a number of other females had been identified in the course of the investigation, and they had been excluded for various reasons. Many of these women had been clients of Monis in his spiritual healing business. These included a Chinese female who was excluded on the basis of her appearance, and the fact that there was no evidence of any contact between her and Monis since 2001 (T744). A further female, who had been a spiritual healing client of Monis, was identified and she was eliminated because she did not match the physical appearance of the attacker and had had no contact with Monis since 2008. This woman was fair haired with fair skin and this was quite inconsistent with the description of the attacker.

315. [673]

     Another female was identified who had some association with Monis in 2003 and 2004. There was no evidence of any ongoing contact between Monis and this woman. Her call-charge records indicated that she was around her home location (and not Werrington) on 21 April 2013.

316. [674]

     This woman was excluded as a suspect.

317. [675]

     Detective Senior Constable Staples gave evidence that there were other spiritual healing clients of Monis and other females he had come into contact with, but in respect of which there was no evidence of any contact in the years leading up to the murder (T745). Police carried out a thorough examination of Monis’ telephones and thorough searches of premises related to him with there being no evidence of any other female having contact with Monis for a long period before 21 April 2013 (T745-746).

318. [676]

     The evidence indicates that Monis had associations with a range of females over the years, sometimes simultaneously. It may be inferred that Monis used his spiritual healing and clairvoyant business as a means of entering sexual relationships with a range of women.

319. [677]

     It is necessary to consider the evidence to determine what picture emerges with respect to Monis’ female associates. I accept the evidence of Detective Senior Constable Staples that for a number of years prior to April 2013, the only women who were significant and ongoing females in Monis’ life were Helen Lee, the Accused and Female M. Of course, Female M died in May 2012.

320. [678]

     There is another feature of the evidence which should be mentioned. Both the Crown and Senior Counsel for the Accused relied upon evidence of a psychological profile of Monis, identifying him as being a narcissistic personality characterised by, amongst other things, a grandiose sense of self importance, a lack of empathy and exploitative behaviour, together with deceitful and manipulative conduct (T916-917). It may be said, with total confidence, that these features manifested themselves in Monis and are demonstrated by the evidence in this trial.

321. [679]

     The Crown submitted that Monis much admired praise of him by women as well as being a hoarder of documents, letters, cards, videos and other items. The Crown pointed to cards or letters from female admirers which Monis had retained, consistent with his own inflated image of himself. Against this background, the Crown submitted that the absence of any other evidence of communication between Monis and an unidentified female in the period up to 21 April 2013 was significant.

322. [680]

     I accept this Crown submission. The absence of any documentary or electronic evidence pointing to an unidentified female in Monis’ life as at April 2013, let alone a person who would be prepared to carry out a murder for him, is an important feature of the evidence in the trial.

323. [681]

     I accept that the thorough investigation undertaken by the police did not detect any evidence of any other woman in association with Monis as at 21 April 2013 who may have been recruited by him to act as the attacker. A suggestion that this scenario may have arisen is based upon speculation and guesswork, and not on any reasonable hypothesis drawn from inferences grounded in the evidence.

324. [682]

     I am entirely satisfied that no other woman is identified in the evidence as being a possible killer of Helen Lee. This scenario may be put to one side.

325. [683]

     A submission was made on behalf of the Accused that Monis may have had a fourth telephone (other than the three phones depicted in Exhibit BV; T567) which may have been his means of communication with the attacker.

326. [684]

     It was submitted for the Accused that the elements of the plot to kill the deceased begged the question as to how Monis was to co-ordinate with the killer or killer group that afternoon if something went wrong requiring a change of plans, or was it Monis and the killer’s intention that there would be no communication all afternoon between them?

327. [685]

     Reliance was placed upon some evidence of OK about Monis having used a telephone when at the Penrith Swimming Pool, but with no record of a call at that time being discovered on any of Monis’ three known phones.

328. [686]

     Reliance was placed, as well, upon a photograph of Monis holding a telephone as he sat behind the wheel of the Jeep outside the Penrith Swimming Pool. It was asked why would Monis have that phone at the ready, 23 minutes after he had received the text from the deceased, unless this was a means of communication with the killer by use of a fourth phone. It was submitted that Monis had an opportunity to dispose of the phone either in a rubbish bin at the swimming pool, or later that night when he asked police to stop for something to eat when they were driving him to Mr Hossein-Noori’s residence, with police complying and stopping at McDonald’s at Granville. There, the police stayed in the vehicle whilst Monis went inside on his own. It was submitted that there was an opportunity for Monis to dispose of a telephone at this and other times.

329. [687]

     The Crown submitted that the use of a telephone, observed by OK at the Penrith Swimming Pool, involved the receipt of the text message sent to Monis by Helen Lee at 3.34 pm, indicating that she was feeling unwell and would be late arriving at Werrington.

330. [688]

     I have considered submissions made concerning a possible fourth phone of Monis, by reference to the totality of the evidence. The evidence of OK raised an issue as to this, but his evidence, when viewed in its entirely, does not point in any reliable way to the use of a telephone for a call (as opposed to a text message), thereby suggesting the existence of a fourth telephone. I do not consider that the defence submission is assisted by the photograph of Monis holding a telephone when sitting behind the wheel of the Jeep.

331. [689]

     I accept that what OK observed was Monis receiving the text message from Helen Lee at 3.34 pm on 21 April 2013.

332. [690]

     There was evidence that Monis used a particular telephone for the purpose of his contact with members of the Rebels OMCG. However, this telephone was obtained by police and had been last used on 9 April 2013 (T746, 894). It was one of the three telephones depicted in Exhibit BV. The fact that Monis utilised this phone for the purpose of contact with members of the Rebels OMCG, and that the phone had not been used since 9 April 2013, operates against any reasonable hypothesis that a person associated with the Rebels OMCG carried out the murder.

333. [691]

     The suggestion that Monis had an undiscovered telephone which he used in connection with the murder, and then disposed of, is a theory based upon speculation and not a reasonable inference arising from the evidence. It may be put to one side.

334. [692]

     The Crown closing address touched on a range of topics, most of which have been considered already in this judgment.

335. [693]

     Towards the end of the Crown closing address, the Senior Crown Prosecutor observed that this is “a quintessential circumstantial case” with no direct evidence either identifying the Accused or by way of an admission by the Accused (T1089). The Crown submitted that there were 14 separate areas of evidence that all point inexorably towards the Accused as the perpetrator of this murder, and he proceeded to nominate those areas as follows (T1089-1091).

336. [694]

     Firstly - that Monis was the instigator and the assailant was a female who was very close to him, and was prepared to kill on his behalf in the way that he dictated.

337. [695]

     Secondly - that the assailant looked very much like the Accused.

338. [696]

     Thirdly - that the assailant had access to Monis’ unit at a time when the Accused had access to the unit, and had very recently been provided with brand new keys to the unit and the downstairs security door.

339. [697]

     Fourthly - this was the first occasion in six months that the Accused had not attended one of Monis’ child access visits.

340. [698]

     Fifthly - Monis knew at least a week in advance that the Accused was not going to be available for the child access visit on 21 April 2013, and he lied to his friends that he had no wife.

341. [699]

     Sixthly - Monis went to incredible lengths to establish an alibi for himself and, if his female assailant had not been the Accused, he would undoubtedly have included the Accused as part of his alibi.

342. [700]

     Seventhly - the Accused had shown, during the course of her long relationship with Monis, that she was prepared to do his bidding in order to maintain their relationship, even to the extent of soliciting the murder of the President-elect of the United States of America, or engaging in gross behaviour towards the families of deceased ex-servicemen or showing grave insensitivity towards her own sick mother.

343. [701]

     Eighthly - the Accused was involved with Monis in many peripheral aspects associated with the murder, both before and after the murder, which included isolating the deceased from her mother and her boyfriend when she came to Monis’ unit at Werrington to drop off or pick up the boys, and included making false allegations against the father of the deceased after the murder to suggest that he may have murdered his own daughter and that, as a locksmith, he had the ability to enter premises without detection, and including also, participation in a number of contrived conversations which she and Monis believed were being overheard by the police.

344. [702]

     Ninthly - the fact that the Accused was concerned that her DNA may be found at the crime scene, and she showed a preparedness to lie to account for that.

345. [703]

     Tenthly - the Accused shared Monis’ views that God sometimes acts through the intervention of human beings, which was the way that Monis justified to himself his actions against his former wife.

346. [704]

     Eleventhly - the Accused supported Monis in his quest to obtain custody of his two boys, and she had spoken to the deceased about it - she was quite prepared to act as the “pseudo mother” of the children and to manipulate them into calling her “Mummy” - she readily assumed a motherly role immediately after the murder.

347. [705]

     Twelfthly - the Accused and Monis maintained telephone silence between 11.00 am and 7.00 pm on 21 April 2013 - the Accused broke that silence in a sense by making six calls from a public phone box to her parents’ home, probably wishing to speak to her daughter before committing this murder.

348. [706]

     Thirteenthly - there is no explanation as to why Monis did not contact the Accused after his fake car accident and hospitalisation, other than that they had agreed not to contact each other as they both knew that she was going to commit a murder.

349. [707]

     Fourteenthly - the Accused has asserted a false alibi in an attempt to evade responsibility for the murder.

350. [708]

     The Crown submitted that the Court should be satisfied beyond reasonable doubt that the Accused was the attacker who committed murder on 21 April 2013, and that there being no doubt there was an intention to kill the deceased, the Accused ought be found guilty of murder.

351. [709]

     Mr Ierace SC made submissions on a wide range of topics, most of which have been referred to and considered in the course of the judgment when addressing particular topics. I will not repeat those submissions here.

352. [710]

     An overview of the closing submissions on behalf of the Accused will suffice at this point in the judgment, with a concentration on submissions which have not, as yet, been considered.

353. [711]

     Senior Counsel for the Accused pointed to the absence of evidence of admissions, identification by eye witnesses, the absence of any forensic link of the Accused to the crime scene, the absence of any marks on the Accused’s hands or arms that would be consistent with a close-quarter struggle, the fact that the murder weapon, the accelerant container and the attacker’s clothing were not recovered so there was no forensic link between them and the Accused, and the fact that there was no evidence or Crown case theory as to how the attacker travelled to and from the crime scene.

354. [712]

     Submissions were made for the Accused in response to the Crown argument that Monis was seeking to introduce the Accused into his family so as to create one family following the killing. Whilst noting the involvement of the Accused and her daughter at the access visits, it was submitted, from the Accused’s perspective, that she and her daughter had a scanty relationship with the boys so it was unlikely that she would go to the extraordinary length of killing their mother so as to share custody of them.

355. [713]

     Submissions were made in response to the Crown argument that the Accused had assisted Monis to ensure that Helen Lee attended the Werrington apartment block alone on 21 April 2013. It was submitted that there were entirely reasonable explanations for the complaint by the Accused about Mr Goundar concerning events on 27 January 2013 and her claim that, on 10 March 2013, Mr Goundar drove his vehicle at her. It was submitted that the incident on 13 January 2013 involving bikies may have reflected on Monis, but not the Accused.

356. [714]

     It was submitted that, upon proper analysis, the evidence of friction between the Accused and Helen Lee in the period leading up to 21 April 2013 did not operate adversely to the Accused. It was submitted that particular care was needed in approaching the evidence of Ms Conciatore in determining the reliability of what Helen Lee had said to her concerning Monis and, in particular, the Accused.

357. [715]

     It was submitted that the videos taken by Monis of the beginning and end of access visits, in particular on 27 January 2013, did not support the complaint made by Helen Lee against the Accused and Monis.

358. [716]

     With respect to the attack itself, it was submitted that Monis’ plan must have been for the attacker to murder the deceased quickly and quietly, given the close proximity of other people in the apartment complex on a Sunday afternoon. Using a firearm was out of the question so that, with the full advantage of surprise, an initial and fatal knife blow would have achieved those objectives. It was submitted that killing the deceased by stabbing was the obvious means to do so as part of the plan, however something went wrong with the plan. It seemed that the attack was intended to take place inside Monis’ unit and not on the staircase, with this scenario being supported by the insurance policy taken out by Monis shortly before the killing.

359. [717]

     With respect to the evidence of Mr Morris, it was submitted that his evidence as to the attacker’s height was confusing. It was noted that Mr Morris heard the victim calling out “I have children, I have children”. It was submitted that it would be unlikely that a person in the deceased’s terrible predicament would have said that, if she recognised her attacker and if the attacker knew that she had children. If the attacker was the Accused, it was submitted that the deceased would not have said words to that effect to her.

360. [718]

     It was noted that Mr Morris had seen a person of similar height and build to the attacker a couple of months before the murder, with the person he saw on the earlier occasion wearing “Middle Eastern clothing”. Reference was made to the evidence of Ms Edwards who had seen the Accused in the building dressed in Western clothes. It was submitted that Mr Morris’ observation was compelling evidence that, before the killing, Monis had a woman in his apartment who was strikingly similar in dress, build and height to the killer that Mr Morris saw, and who dressed quite differently to the way in which the Accused dressed when she was at the Werrington apartments.

361. [719]

     Submissions were made by reference to the statement of Ms Ison, which was tendered during the evidence of Detective Senior Constable Staples. Ms Ison lived in 10 Parkes Avenue, the same unit block where Mr Quiney and Mr Woods met up. Ms Ison stated that, shortly after smelling smoke, she observed a person standing on the opposite side of Parkes Avenue walking towards the unit block. She described the person as being medium height, 5’6” tall, slim build and dressed in all black clothing, being a black hooded jumper with the hood on her head, black jeans and with her head tilted down. The person stood there for a minute staring at the unit complex and then all of a sudden ran across the road to the driveway of Ms Ison’s unit complex. Ms Ison heard the bins in the driveway area being knocked over or the lid being slammed on them.

362. [720]

     Ms Ison heard the fire brigade and police arrive and later that night a police officer came and knocked on the door and she told him what she had seen and heard. Ms Ison was not able to say if the person was male or female and she did not see the face or the features of the person.

363. [721]

     It was submitted for the Accused that the Court should conclude from the evidence that the bins outside 10 Parkes Avenue were not searched during the police search of the area. It was not suggested that the Accused had any link with any of the occupants of that building and, if the person seen was the attacker, it was not the Accused. The body shape of the Accused could not be described as “slim build” which was Ms Ison’s description of the person. Mr Ierace SC submitted that this person may have had nothing to do with the attack on the deceased, however, the evidence indicated that there were persons in the area at the relevant time who had not been excluded from the investigation.

364. [722]

     Submissions were made on areas where the evidence was said to be consistent with innocence.

365. [723]

     It was submitted that the keys to the Werrington unit and front security door, found in the possession of the Accused, could have been provided to her by Monis at any time. It was submitted that the evidence of the Accused’s daughter that they would enter the Werrington apartment block by buzzing Monis did not indicate that the Accused had no keys to the premises. It was submitted that the limited use of the keys was consistent with Monis having tested them before giving them to the Accused for her to use if he was unable to buzz her in.

366. [724]

     It was submitted that, if the Accused was guilty, how extraordinarily incompetent of her to leave the means of her only access to the unit to carry out the killing in a place that could be so easily located and, being her handbag, so easily connected to her. If she was the killer, by the time of the search on the evening of Monday, 22 April 2013, the Accused was on notice that the police regarded her as a suspect. It was submitted that all of this begs the question, if the Accused was the killer, as to why she would have kept the means of access in such an easy locatable place in her handbag on the back of a chair at the dining room table. If she was the killer, it was submitted that she would have disposed of them, along with the knife, petrol container and matches.

367. [725]

     It was submitted that Monis had the opportunity to let the killer into the unit on 21 April 2013, before he and his party drove off to the Penrith Swimming Pool so that, once in the apartment, the unit layout facilitated the killer being able to wait there undetected.

368. [726]

     Submissions were made by reference to the Accused’s movements on 20 and 21 April 2013. It was submitted that phone records suggested that the Accused was at Flemington Markets on Saturday, 20 April 2013.

369. [727]

     With respect to Monis undertaking his access visit in the context of a meeting with friends and their families on 21 April 2013 without involvement of the Accused, it was submitted that it may have been too much for Monis to tell his friends at that time of the existence of the Accused, so that it would have been too much for them to take on board in the one meeting and that it was better to do it in stages.

370. [728]

     In response to the Crown argument as to why Monis would not afford the same alibi protection that he afforded himself by inviting the Accused along, Mr Ierace SC submitted that this assumed that Monis had no supervisory or communication role with the killer. If Monis did, he could not have had the Accused with him unless she became aware of it, thereby compromising his cover.

371. [729]

     Senior Counsel for the Accused made submissions concerning the presence of the Accused at Croydon on the morning of 21 April 2013, and the making of calls from the Croydon Station payphone at 1.52 pm - 1.54 pm that day. It was submitted that the Crown argument that this was an attempt by the Accused to make a call to her daughter, ahead of the stressful planned murder, was both speculative and fanciful.

372. [730]

     Submissions were made concerning contact between the Accused and Monis on the evening of 21 April 2013. It was submitted that the phone calls by the Accused between 7.10 pm and 7.19 pm on 21 April 2013 were consistent with the Accused wanting to find out where Monis was, having not heard from him during the day.

373. [731]

     It was submitted that the Accused’s journey to Kingswood was consistent with her deciding to catch a taxi to Strathfield Station, and from there to get a train to Kingswood. At the time of the phone call at 8.22 pm from Monis, the Accused would be well on her way to the hospital. At 9.22 pm when she arrived at Kingswood, the Accused rang Monis and it diverted to voicemail with Monis then ringing her, being the call recorded on the police video camera.

374. [732]

     With respect to Monis’ phone call at 10.19 pm, it was submitted that Monis was going off with the police so it was not surprising that the Accused would have headed back home.

375. [733]

     Monis rang the Accused at 11.49 pm. It was submitted that it was doubtless that Monis told her at this time that he was going to bring his sons around.

376. [734]

     It was submitted that the Crown had failed to establish the guilt of the Accused to the criminal standard, so that the appropriate verdict was one of not guilty.

Conclusion and Verdict

1. [735]

   I have already expressed my reasons for being satisfied beyond reasonable doubt that Monis planned, and put into effect, the murder of his former wife.

2. [736]

   For reasons already expressed, I am satisfied beyond reasonable doubt that the attacker who killed Helen Lee was a female. I am satisfied beyond reasonable doubt that the attacker intended to kill Helen Lee.

3. [737]

   The remaining question is whether the Crown has proved beyond reasonable doubt that the attacker who murdered Helen Lee was the Accused.

4. [738]

   I bear in mind that the onus is upon the Crown to prove beyond reasonable doubt the elements of the offence. It is not necessary for the Crown to prove every fact to the criminal standard, nor is it necessary for the Court, before returning a verdict of guilty, to answer every question or solve every puzzle which may emerge, in one way or another, from the evidence in the trial.

5. [739]

   I have considered all evidence adduced in the trial and have had regard to the submissions made for the Crown and on behalf of the Accused. In the judgment so far, I have indicated my conclusions and findings with respect to a range of issues. To the extent that I have rejected individual arguments advanced for the Accused on particular issues, I have nevertheless approached the question of verdict upon the basis that it is open to the Accused to contend that a foundation for an acquittal may emerge as a result of the cumulative effect of a number of the features of evidence in the trial. This is consistent with the principle that the Court should not consider the items of evidence in a piecemeal fashion.

6. [740]

   It is appropriate at this stage to stand back and consider all the evidence. Findings to the criminal standard that Monis planned and put into effect the murder, and that the attacker was a female, have a practical effect in narrowing scenarios which may otherwise have been open, as to the identity of the killer.

7. [741]

   Neither the arguments of the parties, nor the evidence in the trial leaves open, as a reasonable possibility, a scenario where Helen Lee was murdered in a random attack or by a stranger. This has the practical effect of narrowing very substantially the range of available persons as the killer.

8. [742]

   I am satisfied that the killer was a person well known to and trusted by Monis. Although Monis had a history of affairs and relationships with different women, the evidence does not permit, as a reasonable possibility, the attacker being a woman somehow associated with Monis, but who remained and remains unknown. Thorough investigations were undertaken by police with a number of women being identified, and with all of them being excluded in the course of the investigation.

9. [743]

   As the tribunal of fact, I record my finding that each of these women was appropriately excluded as a suspect. As mentioned earlier, no argument was advanced at trial that any individual woman ought be regarded as an available and known suspect.

10. [744]

    With respect to the hypothesis advanced that the killer was a person associated with the Rebels OMCG, a fundamental stumbling block, as I have said, is the description of the killer and the means of murdering the victim. Those aspects are totally inconsistent with a killing undertaken for payment or promise of payment.

11. [745]

    I do not accept the argument advanced for the Accused that events which surrounded the possession and use of Monis’ Harley Davidson motor cycle may be linked, in some way, to the payment or security for payment for a hired killing. The evidence does not indicate that Monis voluntarily parted with the motor cycle entirely and, indeed, he took steps unsuccessfully to recover it after the murder. Monis was not acting in a manner consistent with a person who had used the Harley Davidson as payment, or security for payment, for a hired killing.

12. [746]

    I have considered submissions advanced for the Accused with respect to Monis’ efforts, in November 2013, to recruit a person to kill Helen Lee’s father. Like Monis’ efforts to solicit a murder earlier in the year from the Rebels OMCG, these later attempts on his part were likewise summarily rejected. I do not consider that the steps taken by Monis in November 2013 shed any light upon what had actually occurred in events leading up to the murder of Helen Lee in April 2013.

13. [747]

    The murderer was an agitated and angry female wearing a hijab. Although as was submitted for the Accused, the selection of a knife as a murder weapon, may have had an advantage over a firearm, the killing in this case was carried out in a frenzied fashion with 18 knife wounds being inflicted to the victim. Thereafter, and gratuitously, the murderer set alight to the victim in a closed area, in a manner which would have the opposite effect to that argued for the Accused with respect to the selection of the means of killing.

14. [748]

    This crime had all the hallmarks of a frenzied attack by an angry amateur killer, acting in a manner consistent with Monis’ desire as to the means of inflicting death. Although I readily accept that Monis had a financial motive in making a fraudulent claim on the insurance policy which he had taken out just 11 days prior to the killing, I do not consider that this aspect operates as any more than an incidental factor. Nor do I accept that Monis’ plan to claim on the insurance policy was to be explained as a means of getting money to pay a hired killer.

15. [749]

    With respect to the defence submission concerning the Accused’s attempted calls between 1.52 pm and 1.54 pm from the Croydon payphone (at [729] above), I observe that it is not necessary for the Crown to explain every aspect of the case or for the Court to answer every question which may be posed. What may be said, however, is that the calls suggest that the Accused was using a payphone in Croydon in an attempt to contact someone at the Belmore premises. There is no explanation as to why the Accused would not simply use her own mobile telephone for this purpose. She had used her mobile telephone that morning and again that evening. Beyond that, I note that the Court does not need to resolve every puzzle which emerges from the evidence for the purpose of reaching a verdict.

16. [750]

    With respect to the defence submission concerning the failure of the Accused to attend Nepean Hospital on the evening of 21 April 2013 (at [731]-[732] above), the damaging feature of the evidence for the Accused was her unexplained failure to travel the short distance from Kingswood Railway Station to the hospital after she received Monis’ call at 9.22 pm. I infer that the Accused travelled by train to see Monis and there is not a sensible innocent explanation as to why she would not enter the hospital to see Monis, check on his wellbeing and wait with him.

17. [751]

    With respect to the argument, advanced on behalf of the Accused, that it may have been that a woman seen by Mr Morris in the Werrington apartment block at an earlier time (who was wearing Middle Eastern clothing, but was said not to be the Accused) could have been the murderer (at [718] above), I record my conclusion rejecting this submission. I accept that the woman seen by Mr Morris at an earlier time was the Accused, who possessed the relevant clothing. The evidence, as a whole, does not support the existence of an unidentified woman in Monis’ life as at 21 April 2013, let alone one who was prepared to commit murder for him.

18. [752]

    It is the case that Mr Morris said that the victim called out “I have children, I have children” to her attacker. I do not accept the defence submission (at [717] above) that this supports the attacker being a woman other than the Accused, as Helen Lee had met and would have recognised the Accused. This argument assumes that a terrified Helen Lee would have been thinking sufficiently clearly to have recognised the Accused if she was the killer. In my view, this argument disregards the frantic circumstances which existed with the attacker, dressed in a hijab, attacking Helen Lee. There had been limited face-to-face contact between the Accused and Helen Lee. I do not accept the submission that these words, in some way, point to the attacker being someone other than the Accused.

19. [753]

    I have considered the defence submission arising from the statement of Cheryl Ison (at [719]-[721] above]). Her description of the person (male or female) she saw is entirely inconsistent with the evidence of the eye witnesses. The movements of the person observed are not readily linked to anything to do with this murder. I regard the defence submission by reference to this evidence as a speculative one which does not present any reasonable inference arising from the evidence which may assist the Accused. Likewise, I reject the argument that certain areas ought to have been searched upon the basis of this material, and that this feature bears upon the verdict to be reached in this trial.

20. [754]

    It was submitted for the Accused that it may have been Monis’ desire to reveal the existence of his relationship with the Accused to these friends in stages (at [727] above]). Although this is a theoretical possibility, I keep in mind that what occurred on 21 April 2013 was a well thought out creation by Monis of what he considered to be an ironclad alibi for himself, given his plan that his former wife would be murdered soon after 4.00 pm that day. I see little scope in this for Monis to be influenced by a social desire to explain his life to his friends in a gradual and staged way.

21. [755]

    It is, in my view, extraordinary that Monis would not have invited the Accused to attend the outing that day if she was not involved in the planned murder, and if she was completely ignorant of what Monis intended to have done for the benefit of both himself and the Accused.

22. [756]

    I have referred earlier in the judgment to the conduct of the Accused between January and April 2013 in connection with Helen Lee and Mr Goundar. I express my satisfaction that a course of conduct was undertaken by Monis and the Accused between January and April 2013, with a view to irritating and destabilising Helen Lee, and deterring Mr Goundar from entering the Werrington apartment block with her.

23. [757]

    I do not accept the defence submissions made by reference to the keys to the Werrington apartment block and unit (at [723]-[725]). The evidence of the Accused’s daughter indicated that the Accused did not have keys to the Werrington doors. The Accused came to possess quite new keys to the Werrington doors. Her continued possession of the keys as at 23 April 2013 is not indicative of innocence.

24. [758]

    I am satisfied that the Accused had the motive, means and opportunity to carry out the murder on 21 April 2013.

25. [759]

    The motive involved several elements, including a desire by Monis and the Accused to form a single family unit with his sons and the Accused’s own daughter. Monis had been going to considerable lengths between August 2012 and April 2013, in child access visits and other aspects of his life, to give the Accused the clear impression of a plan to have a single family unit, with her as the mother figure for all three children.

26. [760]

    A telling piece of evidence involved the video footage of Monis, the Accused, Monis’ sons and the Accused’s daughter in the Croydon unit on the evening of 22 April 2013. The images depicted suggest a family unit engaged in routine activities, with the Accused acting in a motherly way towards all three children. That Monis and the Accused were acting in this way, a little more than 24 hours after the murder of the boys’ mother, fortifies a conclusion that the intention to create a family unit by disposing of the boys’ mother had been realised, and was being acted upon without delay.

27. [761]

    In circumstances where Monis had abandoned his attempt to have a civil court grant him custody of the children, and he had asserted that the matter would be resolved “in God’s court”, the only realistic means where custody of the boys could be obtained was by way of the permanent removal of Helen Lee from the scene. I am satisfied that the Accused was motivated to achieve this result as at 21 April 2013, as was Monis.

28. [762]

    There is a further feature of the Accused’s motive which emerges from her complex and unusual relationship and history with Monis. I conclude readily that it was her meeting, and subsequent relationship with Monis, which led the Accused to adopt religious and political beliefs with an extreme content as demonstrated by her statements and conduct in 2008 and 2009. In acting in this way, the Accused appears to have adopted uncritically Monis’ view of the world with its extreme and perverse features. The Accused was enthralled by Monis and this remained the position up to 21 April 2013 and beyond.

29. [763]

    There is nothing in the evidence to suggest that, prior to meeting Monis, the Accused had acted in such a fashion or was minded to act in such a fashion. When this aspect is added to the firstmentioned motive relating to the desire to create a family unit, I am satisfied that a powerful compound existed. I am satisfied that Monis took advantage of the Accused’s willingness to act at his behest, and in a manner which she perceived to operate to the unique advantage of Monis and herself.

30. [764]

    The means for the commission of this crime were readily available in the form of a knife, a liquid fuel or propellant and a box of matches. These were commonplace items which were readily available to the Accused. The evidence reveals that a box of matches of the type used was in the possession of the Accused, and was used, in a barbeque setting in the weeks prior to the killing. She possessed the relatively new keys to the Werrington security door and to Monis’ unit. I am satisfied that Monis supplied these keys to her shortly prior to the killing.

31. [765]

    The opportunity for the Accused to commit the crime is established in a number of ways. Firstly, she did not accompany Monis on the child access visit on 21 April 2013 when he, for the first time, invited friends and their families to accompany himself and his sons. Not only was the Accused not invited on this day, but Monis lied to his friends as to her existence.

32. [766]

    I have indicated why I do not accept the evidence of the alibi witnesses called in the defence case as being reliable and truthful witnesses. It is not necessary to repeat the analysis undertaken in this respect.

33. [767]

    What is left is evidence that the Accused was at her Croydon unit block in the late morning of 21 April 2013 and in the vicinity of Croydon Railway Station shortly before 2.00 pm that day. There is no further sign of the Accused in person, or by telephone use, until after 7.00 pm when she attempts to call Monis.

34. [768]

    There was ample opportunity for the Accused to travel from Croydon to Werrington and back to Croydon by early evening. The evidence does not permit a finding to be made as to the precise means of transport used. However, this is an example of an area of the evidence where the Crown is not required to prove each and every step taken, or resolve every query raised on behalf of the Accused. What is important is that there was a clear opportunity for the Accused to travel from Croydon to Werrington and back to Croydon so that she was in a position to commit the crime at Werrington at 4.25 pm on 21 April 2013.

35. [769]

    The evidence of the eye witnesses at the Werrington apartment block is important. Of primary significance is the account of Mr Morris as to what he heard and saw. It is clear from his evidence that this was a frenzied attack by a highly agitated female who would not be deterred by anything Mr Morris said. His evidence of the attacker’s manner of dress is significant and reliable. Mr Morris had a limited opportunity to observe the facial features of the attacker during an extremely stressful and terrifying event. The fact that he did not select the photograph of the Accused provides no real assistance to the defence in the trial. The photograph which he did select was, in my view, close to the appearance of the Accused. This is not a case where the photograph selected by Mr Morris bore no resemblance to the Accused. Indeed, in my view, there is a close similarity between the photograph selected and the Accused.

36. [770]

    Of particular importance, as well, was Mr Morris’ description of the woman as being “plump” or “chubby”. This was a reasonable description of the size of the Accused at that time as depicted in photographs. In my view, Mr Morris had a better opportunity to see the attacker than did other witnesses, including Ms Drzewiecki. I do not consider that the features of Ms Drzewiecki’s evidence relied upon for the Accused are of particular assistance to the defence on the real issues in the trial.

37. [771]

    Given the close temporal proximity of the observations made by the stairwell witnesses and the observations of Mr Hill from his balcony, I am satisfied that the person Mr Hill saw emerging from the ground floor security door was the attacker. I accept his evidence that the attacker headed for the Parkes Avenue exit. I accept that by this time, the attacker had removed her head dress. Although there are variations between the evidence of the witnesses concerning the description of the person whom they observed, the close temporal connection of events establishes, clearly to my mind, that the person observed by each of Mr Morris, Mr Truupold, Ms Drzewiecki and Mr Hill was the attacker.

38. [772]

    This conclusion of itself constitutes a considerable difficulty for any reliance by the Accused upon the evidence of Mr Quiney. I have already considered the evidence of Mr Quiney and Mr Woods. For reasons explained earlier in the judgment, I am well satisfied that the person observed by Mr Quiney was not the attacker. Indeed, at the time Mr Quiney made his observation, the attack had not even occurred.

39. [773]

    The Crown is assisted further by the acts and omissions of the Accused on the evening of 21 April 2013. Even though she made her way to Kingswood Railway Station and was close to the Nepean Hospital, the Accused did not attend the hospital to see Monis. Monis remained at the hospital for about an hour after he spoke to the Accused at 9.22 pm. Given the closeness of their relationship and the fact that, on the face of it, he had been admitted to hospital following a motor vehicle accident, it is very difficult to understand this approach on the part of the Accused if she was not involved in the murder.

40. [774]

    The evidence demonstrates that, whilst police were with Monis at the hospital, he spoke to the Accused by telephone and told her not to attend. Given that Monis had planned and had put into effect the murder of his former wife, it is difficult to understand why Monis would refuse to tell police about the identity and existence of the Accused (if she was innocent), nor tell them to whom he had just been speaking on the telephone. I am satisfied that Monis was shielding the Accused (whom Monis knew was the killer) from the police at that time.

41. [775]

    In the weeks and months that followed, Monis and the Accused communicated with the police in ways that sought to suggest that Helen Lee’s father or Mr Goundar were the suspects for the murder. Monis was well aware that these were false allegations because he knew who had carried out the murder. I accept that the Accused falsely corroborated some of Monis’ allegations.

42. [776]

    Throughout this period, the Accused and Monis continued to live a close relationship. The defence case appears to be that Monis was deceiving the Accused throughout this period by hiding from her the fact that he was behind the murder. In considering that scenario, I have taken into account the entirety of the evidence and what it reveals about the longstanding, elaborate and unusual relationship between Monis and the Accused. Although I accept that the Accused was prepared, on a number of occasions, to act at the direction of Monis in an apparently uncritical way, I do not accept that the Accused was naïve. Her willingness to actively participate in and promote the suggestion that Helen Lee’s father (in particular) was a suspect whom she feared because of his experience as a locksmith, sheds light upon her knowledge of, and involvement in, the murder with Monis.

43. [777]

    It is the case that there is no forensic evidence tying the Accused to the commission of this crime. There is no fingerprint or DNA evidence. I have considered the submission advanced for the Accused that the DNA evidence, arising from the partly burnt match stick, pointed to the attacker being someone other than the Accused. For reasons explained earlier, I consider that the evidence in this respect is, in reality, neutral. There is not an objective foundation which operates in favour of the Accused, as opposed to a speculative theory which may be advanced on her behalf.

44. [778]

    I have given careful consideration to the arguments advanced by reference to the recorded conversations which are said by the Crown to demonstrate consciousness of guilt. It is important to keep in mind the fact that, as the Accused’s own words demonstrate, she believed that the conversations she was having on the telephone or with Monis were being recorded by the police. I am satisfied that there was a strong element of façade in these conversations. The statements made by the Accused do not assist her in this trial. They demonstrate the development of manufactured accounts, and not spontaneous conversations between her (as an innocent person) and Monis (the planner of the murder).

45. [779]

    In summary, I am satisfied that Monis planned and put into effect the murder of Helen Lee. The killer was a female. The murder was carried out, in a hot-blooded fashion, by a female with a strong emotional investment in killing Helen Lee. The killer was a trusted associate of Monis who was prepared to carry out the murder, in a manner desired by Monis, using a combination of stabbing and fire. As at 21 April 2013, the Accused was Monis’ closest female associate, who had demonstrated a willingness to act as he wished consistently in the past.

46. [780]

    A frenzied attack was involved which was entirely inconsistent with the work of a hired killer. The killer bore a close facial similarity to the Accused and the body shape of the killer, as described by the principal eye witness, which was consistent with that of the Accused. The killer was dressed in an unusual manner, involving a head cover available to the Accused. All of these factors lead inexorably to the conclusion that the Accused was the murderer.

47. [781]

    I return to the principles to be applied in determining whether guilt has been proved in an entirely circumstantial case. Having considered the entirety of the evidence, and all submissions made by the parties, I am satisfied that the only rational inference arising from the evidence is that it was the Accused who carried out the murder. Arguments to the contrary advanced on behalf of the Accused involve mere conjecture or speculation, which raise, at best, bare possibilities of innocence. I keep in mind that the onus of proof remains with the Crown from first to last during the trial. I am satisfied beyond reasonable doubt that the Crown has proved the guilt of the Accused.

48. [782]

    I find the Accused guilty of murder as charged in the indictment.

49. [783]

    I convict the Accused of murder.