R v Houda

WARD P: On 5 July 2019, the applicant, Fady Houda, was found guilty, following a trial in the District Court before Judge Culver DCJ and a jury, on a charge of attempt to cause an explosion or fire, or both, with intent to murder Dean Yarnton on or about 1 February 2015 at Picnic Point, contrary to s 30 of the Crimes Act 1900 (NSW) (Crimes Act) (count 1). There was an alternative count on the indictment (count 2) being a charge that on or about 1 February 2015 at Picnic Point the applicant put LPG gas and petrol in, upon and around a Nissan Navara then occupied by Mr Yarnton with intent to cause grievous bodily harm to Mr Yarnton, contrary to s 47 of the Crimes Act.

The applicant was tried jointly (in a trial commencing on 29 April 2019) with three co-accused: Sharon Yarnton (Mr Yarnton’s then wife), Monique Hayes (the applicant’s wife) and Anthony Mouhtaris (who lived with his grandfather, Anthony Mouhtaris Snr, in the same apartment complex as the applicant and Ms Hayes). Each of the co-accused had been indicted on the same counts as the applicant and each was also found guilty of count 1. The jury had deliberated for seven days; and there was a direction pursuant to the decision of Black v R (1993) 179 CLR 44 (Black) given on 5 July 2019 (see SU 160).

On 17 June 2020, the applicant was sentenced to a term of imprisonment for 11 years and 6 months, with a non-parole period of 7 years and 10 months. The sentence commenced on 24 December 2016; the non-parole period expires on 23 October 2024; and the sentence expires on 23 June 2028.

The Crown case at trial was that there was a joint criminal enterprise between all four co-accused to murder (or, in the alternative, cause grievous bodily harm to) Mr Yarnton; and that, during the evening of 31 January 2015 and the early morning hours of 1 February 2015, an attempt was made by the co-accused to carry out that agreement by using fire accelerants to set fire to Mr Yarnton’s Nissan Navara while he was asleep inside it on Henry Lawson Drive at Picnic Point. No fire was started and Mr Yarnton was not physically harmed.

The applicant and each of his co-accused denied any involvement in the alleged joint criminal enterprise and pleaded not guilty when arraigned.

There were three previous trials for the same offence which were aborted: two were before Judge Lakatos SC, the first starting on 15 May 2017 and the second starting on 22 May 2017; the third was before Judge Culver, starting on 12 March 2019. The applicant made two applications for separate trials, one before Judge Lakatos SC which was refused on 15 May 2017 and the second before Judge Culver which was refused on 15 March 2019. There was no challenge in respect of either of those decisions, although it is now asserted that a miscarriage of justice arose as a result of the applicant being tried with Ms Yarnton.

By notice of appeal filed on 23 September 2021, the applicant seeks leave to appeal his conviction upon the two grounds set out below. Leave is necessary only in relation to ground 2 (as it is not confined to a question of law). The applicant has expressly reserved his position in relation to any appeal against sentence. The two grounds of appeal are as follows:

In the event that the applicant’s appeal against conviction is allowed and an order made for his re-trial, the applicant seeks a non-publication order pursuant to ss 7 and 8(1)(a) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) in relation to the Court’s judgment in the proceedings, namely an order that publication of the Court’s judgment in these proceedings is prohibited until further order of the Court; and the applicant further requests that the Court’s judgment not be published on www.caselaw.nsw.gov.au until any re-trial is completed.

For the reasons set out below by Adamson J, I agree that ground 1 is not made good. I turn then to the consideration of ground 2, which requires a comprehensive analysis of the evidence adduced at the trial. First, however, it is convenient to summarise the applicable principles (about which there was no dispute) where it is contended that a verdict is unreasonable.

There was no dispute as to the applicable legal principles where there is an appeal against conviction on the ground that the verdict was unreasonable. The question is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (see M v R (1994) 181 CLR 487; [1994] HCA 63 (M v R) at 492-493 per Mason CJ, Deane, Dawson and Toohey JJ; MFA v R (2002) 213 CLR 606; [2002] HCA 53 (MFA v R) at [60]-[61] per McHugh, Gummow and Kirby JJ; SKA v R (2011) 243 CLR 400; [2011] HCA 13 (SKA v R) at [13]-[14], [22] per French CJ, Gummow J and Kiefel J, as her Honour then was). In Libke v R (2007) 230 CLR 559; [2007] HCA 30 at [113], Hayne J (with whom Gleeson CJ and Heydon J agreed) expressed the test as being whether it was “open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the applicant’s guilt” (emphasis in original). More recently, in Pell v R (2020) 268 CLR 123; [2020] HCA 12 , the High Court said that these tests are essentially the same (see at [45] per Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

The appellate court must undertake its own independent assessment of the evidence (M v R; SKA v R), though having regard to “the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence” and that the jury had the benefit of seeing and hearing the witnesses give evidence (M v R at [7] per Mason CJ, Deane, Dawson and Toohey JJ; MFA v R at [49] per McHugh, Gummow and Kirby JJ). The High Court has emphasised the deference that must be accorded to the jury’s verdict, not only because the jury were in a better position than the appellate court to assess the credibility of witnesses, but also because of the constitutional authority of the jury (R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 (Baden-Clay) at [65] per French CJ , Kiefel J, as her Honour then was, Bell, Keane and Gordon JJ).

On a circumstantial case, the process of reasoning on appeal was described in Knight v R (1992) 175 CLR 495; [1992] HCA 56 per Mason CJ, Dawson and Toohey JJ at 503, their Honours noting that if a reasonable jury ought to have found that an inference or hypothesis consistent with innocence was open on the evidence, then it ought to have given the appellant the benefit of the doubt necessarily created by that circumstance; and framing the enquiry for the appellate court in that case as being whether, in the circumstances of that case, the jury acting reasonably could have rejected as a rational inference the possibility (consistent with the appellant’s innocence) that the appellant fired, without an intent to kill, the shot which hit the victim.

In Baden-Clay, the High Court (citing the joint judgment of Gibbs, Stephen and Mason JJ in Barca v R (1975) 133 CLR 82 at 104; [1975] HCA 42) said (at [46]):

Insofar as the Crown has criticised the approach of the applicant on this appeal on ground 2 as being piecemeal (citing Baden-Clay at [77]), reliance is placed by the applicant on Hillier v R (2007) 228 CLR 618; [2007] HCA 13 at [46]-[49] per Gummow, Hayne and Crennan JJ, where importance was placed by the Hight Court on the need to consider and weigh the evidence of all of the circumstances in order to decide whether there is an inference consistent with innocence reasonably open to the accused and to the approach taken by the High Court in Coughlan v R (2020) 267 CLR 654; [2020] HCA 15 at [55]. Thus the applicant maintains that this Court must look through the framework of the Crown case at trail and the circumstances there relied upon, to answer the ultimate question as to whether the verdict is unreasonable.

As noted above, there were four co-accused (Ms Sharon Yarnton, Ms Monique Hayes, Mr Anthony Mouhtaris and the applicant). Ms Yarnton and the victim (Mr Dean Yarnton) had been married for over 20 years; they had two teenage children; and they both were employed in senior roles with the Department of Corrective Services (30/04/19 T 59.29-42). The applicant and Ms Hayes were married and both were aged in their early twenties. Ms Hayes had previously been in a relationship with Ms Yarnton’s teenage son and had formed a friendship with Ms Yarnton. Ms Hayes and the applicant lived together in an apartment in Caringbah. Mr Mouhtaris lived with his grandfather (Anthony Mouhtaris Snr) in the same apartment complex as Ms Hayes and the applicant. None of the accused (as was their right) gave evidence at the trial (see 20/06/19 T 2311.23-42).

At the outset, it should be noted that it is necessary in the chronology that follows to include evidence not admissible against the applicant as it is relevant to ground 1 of the appeal. So, for example, the electronically recorded interviews of a suspected person (ERISPs) of Ms Yarnton and Ms Hayes were not admitted in the case against the applicant. Only the evidence that was admissible in the case against the applicant has been taken into account for the purposes of determining ground 2 (the unreasonable verdict) ground of appeal.

In September 2014, Ms Yarnton discovered that her husband had been having an extramarital affair with a work colleague. Ms Yarnton began frequently contacting the woman with whom Mr Yarnton was having the affair (16/05/19 T 1048.29-50; 1058.13-33); and there was significant tension in the Yarntons’ marriage. Mr and Ms Yarnton made plans to separate; and they sold their family home at Menai (the sale being due to complete on 23 February 2015).

There was evidence from a friend of Ms Yarnton (Ms Christine Osland) (which was only led in the Crown case against Ms Yarnton – see at 13/05/19 T 757.05) that Ms Yarnton had told Ms Osland about her husband’s affair; including (in a telephone conversation after the family home had been put up for sale but before it had sold) that Ms Yarnton and her husband were sleeping in separate bedrooms and that Mr Yarnton only planned to stay in the family home until it was sold (13/05/19 T 737.25). Ms Osland’s evidence was that, in another phone call, Ms Yarnton told Ms Osland that she had a “plan”; and that, when Ms Osland asked what she meant, Ms Yarnton said “You don’t need to know what plan, I have a plan” (13/05/19 T 740.19). Ms Osland said that she told Ms Yarnton not to “do anything stupid, because you don’t want to get yourself into trouble” (13/05/19 T 740.21). Ms Osland recalled reading Facebook posts by Ms Yarnton such as, “What goes around comes around” and “Karma will get you” (13/05/19 T 738.31).

Between October 2014 and January 2015, a number of emails were sent from two shared domestic email accounts to Ms Yarnton’s work email account. The Crown case was that these were sent by Ms Yarnton, posing as her husband. The emails referred to supposed gambling debts owed by Mr Yarnton to loan sharks; and threats made towards him by those to whom it was represented he owed money. Several of the emails related to “loans” obtained on Mr Yarnton’s behalf by his wife in order for him to repay his debts (see Exs H and P). Those emails were also led only in the Crown case against Ms Yarnton (30/04/19 T 124; 01/05/19 T 163.26).

So, for example, there was an email sent on 11 January 2015:

On 12 January 2015, Ms Yarnton applied for a loan of $60,000 through a Westpac Bank branch at Menai (17/05/19 T 1152.45).

On 15 January 2015, Ms Yarnton met with Ms Tracie Cotton, the Westpac branch manager at Menai. Ms Cotton’s evidence (led in the Crown case against Ms Yarnton only – see 17/05/19 T 1167) was that Ms Yarnton told her that “she was going through a divorce” and that her husband “had loan sharks after him”; and that Ms Yarnton said she wanted to pay out her husband’s debt, as threats had been made against her and her family (17/05/19 T 1154.03). On 16 January 2015, a loan of $25,000 was approved and Ms Yarnton attended the branch and withdrew $20,000 of that loan amount in cash.

On 27 January 2015, Mrs Yarnton returned to the bank and tried to borrow more money, but the bank declined (17/05/19 T 1156.25-48). The following day, Mrs Yarnton withdrew the remaining $4,850 available to her from the $25,000 loan (less a $150 application fee). Ms Cotton’s evidence was that Ms Yarnton had a further conversation with Ms Cotton at the bank in which she said she was counting down the days to “get the fucker out of her life and not have to deal with him again”; and that Ms Yarnton said that she wouldn’t care if he burnt to death (17/05/19 T 1157.28-33).

On 20 January 2015, Ms Yarnton sent two text messages to her friend Ms Kylie Fosse (Ex SSS at p16; Ex DDDD), evidence again led only in the Crown case against Ms Yarnton:

On 29 January 2015, another email was sent to Ms Yarnton’s work email address (again, the Crown case was that this was sent by Ms Yarnton posing as her husband) (see Ex P):

Meanwhile, on 27 January 2015, Ms Yarnton contacted Ms Osland’s husband, Craig Osland, and arranged for the two couples (the Yarntons and the Oslands), who had been close friends for some time, to have dinner at the Merrylands Bowling Club on Saturday, 31 January 2015. Ms Osland’s evidence (led in the Crown case against Mrs Yarnton only – see 13/05/19 T 757.05) was that Ms Yarnton suggested they have dinner together “the four of us for the last time” (T 739.04); and that Ms Yarnton said she had been discussing such a dinner with her husband for some time.

Exhibit DDDD, admitted without objection against all four accused (see 20/06/19 T 2304.27) was a summary of telephone, text and Facebook communications between various telephone numbers associated with the accused between 1 January 2015 and 2 February 2015. The Crown relied on this as a central piece of evidence in its case.

The relevant telephone numbers set out in the summary and associated with the various accused were: (i) a number ending 414 ascribed to Ms Yarnton; (ii) a number ending 506 ascribed to Ms Hayes and referred to in the trial as “Monique Hayes (1)”; (iii) a number ending 178 ascribed to Ms Hayes and referred to in the trial as “Monique Hayes (2)”; (iv) a number ending 050 ascribed to Ms Hayes and referred to in the trial as “Monique Hayes (3)”; (v) a number ending 488 ascribed to Anthony Mouhtaris Snr and referred to in the trial as “Anthony Mouhtaris Snr (1)”; and (vi) a number ending 940 ascribed to Anthony Mouhtaris Snr and referred to in the trial as “Anthony Mouhtaris Snr (2)”. I will refer to the telephone numbers by those descriptors.

The Crown case was that the telephone numbers “Monique Hayes (1)” and “Monique Hayes (2)” were used exclusively by Ms Hayes. The Crown alleged that the number “Monique Hayes (3)” was used by the applicant (and, in particular, the Crown alleged that the Monique Hayes (3) number was used by the applicant on 31 January and 1 February 2015).

The telephone records (as to which there was evidence from an Optus representative – see below) showed that, from 24 January 2015, there was frequent contact between the Monique Hayes (1) telephone number and the Monique Hayes (3) telephone number; from which the Crown case at trial was that the user of the Monique Hayes (3) telephone was someone connected to Ms Hayes and someone close to her. It was an agreed fact that, during January 2015, the Monique Hayes (3) telephone number had been used on a number of occasions to contact the applicant’s sister and another of his relatives (see 20/06/19 T 2305.30-45; Ex EEEE). However, the agreed fact was not more specific as to the number of occasions that this contact was made; nor as to when that contact occurred during the month of January 2015.

The Crown case was that both the numbers “Anthony Mouhtaris Snr (1)” and “Anthony Mouhtaris Snr (2)” were used by Mr Mouhtaris.

In the period between 24 January and 30 January 2015, there were telephone and text communications between the following telephone numbers: (i) Monique Hayes (3) and Anthony Mouhtaris Snr (1) and both Anthony Mouhtaris Snr (2); (ii) Monique Hayes (3) and Monique Hayes (1); and (iii) between Ms Yarnton and Monique Hayes (1) (see Ex DDDD).

Relevantly, on 30 January 2015 and 31 January 2015 there were the following exchanges of text messages and telephone calls.

On 31 January 2015, the Yarntons drove in their Nissan Navara vehicle (Ex D) from their home in Menai to the Oslands’ home in Merrylands and the two couples then drove together to the Merrylands Bowling Club where they had dinner. Mr Yarnton and Mr Osland drank several beers.

At about 10.45pm, Ms Yarnton offered to buy Mr Yarnton and Mr Osland a last beer and went to the bar area alone. Mr Yarnton’s evidence was that his wife insisted that she buy the last beer of the night (30/04/19 T 76.19). CCTV footage showed Mrs Yarnton buying two schooners of beer, carrying the glasses into a coffee shop area, then returning to where her husband and the Oslands were sitting. Mr Yarnton took a sip of his beer and noticed that it tasted “very funny” and was granular (30/04/19 T 76.45-48). Mr Yarnton said something like “this beer tastes like shit” (30/04/19 T 76.48-77.02). Ms Yarnton took the beer back to the bar area (30/04/19 T 77.02). CCTV footage showed Ms Yarnton at the bar area retrieving another glass from behind the bar, pouring the contents of her husband’s beer into that glass, then carrying it back to where he was sitting with the Oslands. Mr Yarnton took another sip and said, “it still tastes like shit” (30/04/19 T 77.04). Mr Yarnton only took a few sips of the beer. The Crown case was that Ms Yarnton had put a sedative into her husband’s beer.

CCTV footage from a Coles Express service station on the Hume Highway at Bass Hill (time stamped between 10.42pm and 10:48pm – that being at about the same time as Ms Yarnton was buying Mr Yarnton and Mr Osland their last beers inside the Merrylands Bowling Club and more than two hours before the alleged commission of the offence at Picnic Point), shows what the Crown alleged to be a silver-coloured car (similar in appearance to a silver Subaru Impreza registered to the applicant) turning left into Strickland Street, a street adjacent to the service station.

The CCTV footage shows Mr Mouhtaris enter the service station moments later and purchase a new 8.5-kilogram gas bottle (Ex SS). The service station operator noticed that, as Mr Mouhtaris walked away from the service station, Mr Mouhtaris was carrying two gas bottles (not just the one for which he had just paid). The service station operator lost sight of Mr Mouhtaris as he walked towards Strickland Street (21/05/19 T 1185.30). A subsequent audit of the service station’s gas bottles revealed that there was one unaccounted for gas bottle (15/05/19 T 948.20).

The CCTV footage showed a vehicle (again alleged by the Crown to be a vehicle similar in appearance to the applicant’s vehicle) drive out of Strickland Street and turn left onto the Hume Highway.

The Court viewed the CCTV footage on the present appeal.

The communications summary (Ex DDDD) shows that there were the following communications in the period from when Ms Yarnton bought the last round of beers at the Merrylands Bowling Club and Mr Mouhtaris was shown on the CCTV footage at the Bass Hill Coles Express.

At about 11:45pm on 31 January 2015, the Yarntons left the Oslands and began driving home to Menai in their Nissan Navara utility. Ms Yarnton was the driver (30/04/19 T 78.12), and Mr Yarnton quickly fell asleep in the front passenger seat (30/04/19 T 79.17). Mr Yarnton had been drinking beer for several hours and was intoxicated (09/05/19 T 545.27-546.36; T 553-555.25).

There were then the further communications from around the time that the couple left the Merrylands Bowling Club.

Mr Yarnton’s evidence was that at around 1.16am (i.e., around the time the last of the above Facebook messages was sent) he woke up in the front passenger seat inside the couple’s Nissan Navara; that he was in a dark location and that he did not know where he was. His evidence was that a gas bottle that had not been there when he fell sleep was in the back seat of the car and was hissing gas; and that the gas bottle was positioned in the middle of the back seat of the vehicle, about 50-60 centimetres from where his head had been while he was sleeping (30/04/19 T 80.05). Mr Yarnton said that he leant over and turned off the gas bottle; and that he noticed that all of the vehicle’s windows were down (30/04/19 T 81.11); that he jumped out of the car through the passenger side door, and his socks became “very wet”; and that he could smell fuel. Mr Yarnton said he looked down and saw another gas bottle on the ground facing the vehicle’s petrol tank (30/04/19 T 80.35-39); that he noticed the petrol tank lid was open (saying that it required the car key to open) (30/04/19 T 81.25-38). Mr Yarnton saw liquid around the car and in the tray of the car (30/04/19 T 84.11).

Mr Yarnton said that he looked up and saw a vehicle driving down the road; that when he first saw the car, it was parked on the same side of the road as his vehicle and was facing away from him; and that he could see the rear lights and they were on (30/04/19 T 82.01; 17-19). Mr Yarnton said that he saw two rear lights one on either side of the vehicle; he did not see a third rear light in the middle (09/05/19 T 583.30-584.14). Mr Yarnton estimated that the vehicle was approximately 30 metres away (30/04/19 T 82.07). Mr Yarnton could not see whether the vehicle’s headlights were on and could not tell what colour the vehicle was. Mr Yarnton said that there were no lights in the area, and it was “very dark” (30/04/19 T 82.30). Mr Yarnton could not identify the make of the vehicle but said he thought that it was “an old Ford Laser” because “the lights were sort of … long rather than high”. Mr Yarnton said that he was “no real car buff” and had not previously owned or driven a Ford Laser (30/04/19 T 83.03-09). Mr Yarnton only observed the vehicle for “seconds” before it drove away (30/04/19 T 83.39-50).

Mr Yarnton said that Ms Yarnton was nowhere to be seen. Mr Yarnton telephoned his wife using his mobile phone. Mr Yarnton said he asked his wife where she was and said she told him that “she’d shit herself and she was in the bush cleaning herself up” (30/04/19 T 84.45-46). (Subsequent police investigation discovered no evidence of human defecation in the area that Ms Yarnton had indicated she was at the time.) Mr Yarnton said that he told Ms Yarnton she needed to come back to the car and explain to him what was going on; and said that his wife told him that she would be out shortly then hung up the phone. Mr Yarnton said that a minute or so later, he called his wife back and asked her where she was; and that Ms Yarnton said she was still in the bush cleaning herself up and would be out in a minute, then hung up again (30/04/19 T 85.49).

Exhibit DDDD set out a number of further telephone contacts from around this time:

At 1.42am, Mr Yarnton called 000 (Ex C; 30/04/19 T 93.34). Mr Yarnton’s evidence was that, while he was on the telephone to the police, he saw Ms Yarnton “100 odd metres down the road” walking towards the vehicle. Mr Yarnton said he hung up and asked his wife what was going on. Mr Yarnton said that his wife told him “I have no idea, I shit myself, I was in the bush cleaning myself up”. Mr Yarnton says that he replied “that’s bullshit” (30/04/19 T 95.42-50). Mr Yarnton said that Ms Yarnton began to rummage through “a little pocket” inside the front driver’s door (30/04/19 T 96.13) and told him that she was looking for her phone charger. Mr Yarnton said that Ms Yarnton opened one of the rear doors, took hold of the gas bottle and threw it across the road (30/04/19 T 98.21-23). Mr Yarnton’s evidence was that he slammed the car door shut, pushed his wife up against the car and asked her what was going on; that Ms Yarnton told him she was going to ring the police; and that he replied “well you go your hardest”. Mr Yarnton said that he picked up the gas bottle from the roadway and put it in the back tray of the vehicle (30/04/19 T 98.24) then walked up the road about 20 metres to smoke a cigarette and wait for the police to arrive (30/04/19 T 96.01-06; 99.19). Mr Yarnton called and spoke to police a second time (Ex C).

At 1.43am, there were two telephone calls from the Monique Hayes (1) telephone number, lasting 3 and 2 seconds respectively – one to the Monique Hayes (3) telephone number and on to the Anthony Mouhtaris Snr (1) telephone number.

Before the police arrived at the scene, two men (Mr Danny Nguyen and his friend Mr Martin Hoang), who were driving home to Cabramatta along Henry Lawson Drive, after a day’s fishing at Woronora, saw the Nissan Navara on the opposite side of the road (15/05/19 T 928.12). They performed a U-turn and Mr Hoang approached the vehicle and spoke to the Yarntons. Mr Nguyen waited in the car and smoked a cigarette, but he smelt something. Mr Nguyen got out of the car and observed the roadway around the Nisan Navara to be “damp”. Mr Nguyen thought he could smell petrol (15/05/19 T 930.12). Their evidence was that Mr and Ms Yarnton were arguing. Mr Hoang suggested that he and Mr Nguyen stay until the police arrived.

Sergeant Steven Anderson was the first police officer to arrive at the scene. When he arrived, he had a conversation with Ms Yarnton. Sergeant Anderson’s evidence was that he could smell diesel fuel (15/05/19 T 988.46) and there appeared to be a liquid around the vehicle and over the vehicle’s roofline and in its tray (15/05/19 T 989.12-21). Sergeant Anderson said that Ms Yarnton told him that she had been out to the Merrylands Bowling Club with her husband, she was driving home and got lost; that she was feeling sick, so she stopped the car; that she needed to go to the toilet and was away for about 15 minutes; and that her husband rang her and asked where she was, and she told him she was going to the toilet because she felt sick. Sergeant Anderson said that Ms Yarnton said her husband started screaming at her telling her to come back or he would “flog” her; and that she started to walk back to the car but did not want to go near her husband and rang 000 (15/05/19 T 989.48-990.09). Sergeant Anderson said that Ms Yarnton suggested her husband was intoxicated and aggressive (15/05/19 T 990.13).

Sergeant Anderson also spoke with Mr Yarnton, who he said was standing away from his wife towards the front of the vehicle. As Sergeant Anderson approached the car he noticed that all of the windows of the vehicle were down (15/05/19 T 991.34). Sergeant Anderson described Mr Yarnton as anxious, confused and indifferent. Sergeant Anderson thought that Mr Yarnton was moderately affected by alcohol (15/05/19 T 992.19). His evidence was that Mr Yarnton said “I’ve woken up. I found myself here. I don’t know what’s going on” (15/05/19 T 992.33).

Sergeant Anderson saw a cream-coloured gas bottle in bushland adjacent to the vehicle; and, later, he saw a second cream-coloured gas bottle in an embankment (16/05/19 T 1016-1017; Exh MM photographs 37 and 38). Sergeant Anderson and another officer began a search of bushland on either side of the roadway west of the vehicle and downhill in an effort to locate any evidence that Ms Yarnton had defecated in the bushland as she had said. As noted above, they found no evidence she had done so.

When Sergeant Anderson returned to the passenger side of his police car, he observed a pink cigarette lighter and single black glove on the ground (Ex MM, photographs 21, 22 and 25; 10/05/19 T 659.42; 16/05/19 T 1021.36). The cigarette lighter and glove were a short distance from the rear of the vehicle (27/05/19 T 1380.36). Sergeant Anderson used the police radio to request the attendance of Bankstown detectives (16/05/19 T 1023.17).

Ms Yarnton also spoke with a second police officer at the scene, Senior Constable Catherine McGuinn. Senior Constable McGuinn’s evidence was that Ms Yarnton gave a similar account of having taken a wrong turn and needing to defecate and going into the bushes to do so (21/05/19 T 1229.16); and Ms Yarnton said that when she came out of the bushes, her husband was yelling at her about something to do with his feet being soaked in petrol and Ms Yarnton had no idea what he was talking about. (Pausing here, on this account, presumably the diesel or petrol would have had to have been spread around the car in the 15 or so minutes that Ms Yarnton said she was in the bushes.)

Senior Constable McGuinn said that Ms Yarnton told her that the couple had argued; that Mr Yarnton said her husband pulled her hair, grabbed her throat and threatened to kill her; that Ms Yarnton said her husband was a heavy drinker and was frequently violent towards her and she wanted to get away from him. Ms Yarnton told Senior Constable McGuinn that Mr Yarnton threw a gas cylinder at her and that she had no idea where the gas cylinder came from (21/05/19 T 1229.36). Senior Constable McGuinn said that Ms Yarnton said that her husband picked up a big stick and attacked her with it.

Detective Rachael Lawson gave evidence of a similar conversation with Ms Yarnton later at the scene (27/05/19 T 1381.27-1384.32).

At about 1.50am on 1 February 2015, a vehicle was observed on fire on Karimbla Road, Miranda by a witness (Ms Tamara Rojas) (22/05/19 T 1270-1274). The vehicle was subsequently identified as the applicant’s silver-coloured Subaru Impreza sedan registration BP 71 LZ (22/05/19 T 1313.35; Ex YY). Ms Rojas gave evidence that there was a walking track which led from Karimbla Road back towards Caringbah along a train line. The location where the applicant’s vehicle was on fire was within a kilometre of the street at Caringbah where Ms Hayes lived with the applicant and where Mr Mouhtaris lived.

There were a number of further telephone communications from the relevant telephone numbers in the early hours of 1 February 2015 (after the police had arrived at the scene):

On 1 February 2015, at about 7.00am, Ms Yarnton participated in the first of two records of interview with police at Bankstown Police Station (neither being admissible in the case against the applicant).

In her first interview, Ms Yarnton said that she knew nothing about what had happened and was in the bushes going to the toilet (see MFI 42 at Q 166). Ms Yarnton said that she had stopped the car on the side of the road for that purpose, taken a serviette with her, left the windows of the car open (“I think for fresh air for him”) and the hazard lights on, and walked away from the car to find a “stable area” to go to the toilet.

Ms Yarnton said that while she was in the bushes she heard “yahooing” and thought “fuck, we’ve got hoodlums up here, this is all I need” (see MFI 42 at Q 359). Ms Yarnton said that her husband called and abused her and threatened to kill her (see MFI 42 at Q 328-329); that when she returned to the car after about 20 minutes her husband asked her why there was a petrol smell and where the two gas bottles had come from; and that she said she had no idea where the gas bottles came from (see MFI 42 at Q 352).

Ms Yarnton said that her husband assaulted her; that her husband had gambling debts and that she had borrowed money for his debts. Ms Yarnton referred to emails, saying “And he sent me emails to confirm his debts … I didn’t trust him to do the right thing by me … I didn’t want to lose what I was gunna get considering he had a gambling problem” (see MFI 42 at Q 200).

Towards the end of the interview, Ms Yarnton said that when she first stopped the car on the side of the road “there was a silver car ahead” (see MFI 42 at Q 1003).

Some time during that same day (after her first interview), Ms Yarnton had a further conversation with Detective Lawson. Detective Lawson’s evidence was that she had conducted checks on the COPS System in relation to mobile telephone numbers on Ms Yarnton’s phone; and that she had noticed two calls received by Ms Yarnton within half an hour of 000 being contacted earlier that morning were from Ms Hayes. Detective Lawson also became aware that the applicant’s vehicle had been found burnt out in Miranda earlier that morning.

Detective Lawson had a conversation with Ms Yarnton to the following effect (27/05/19 T 1386.25):

Following this conversation, Ms Yarnton told Detective Lawson she wanted to provide more information about what had occurred earlier that morning and agreed to participate in a second record of interview.

In her second interview, which commenced at about 4.40pm that day, Ms Yarnton said that on 29 January 2015 at about 5.00pm, she had met Ms Hayes outside a McDonald’s restaurant in Caringbah. Ms Yarnton said she had contacted Ms Hayes to ask her to return her son’s mobile phone charger. Ms Yarnton said the applicant dropped Ms Hayes at McDonald’s but did not stay (see MFI 43 at Q 41- 46).

Ms Yarnton said that Ms Hayes did not have the mobile phone charger with her and that she had invited Ms Yarnton to accompany her back to the apartment she shared with the applicant in Caringbah. When Ms Yarnton and Ms Hayes arrived at the apartment, she said the applicant and another male “of Middle Eastern appearance” she only knew as “Cuz” were there (see MFI 43 at Q 49-50). Ms Yarnton said she had a conversation with Ms Hayes and the applicant about her relationship with Mr Yarnton. Ms Hayes asked how things had been going and Ms Yarnton said she told her “fucking shit, the abuse is continuing and it is out of control. Twenty days to go … he abuses me mentally, verbally and physically” (see MFI 43 at Q 51-53).

Ms Yarnton said that at that point, the applicant said to her, “I can get someone to knee cap him”. Ms Yarnton said she replied to the applicant’s suggestion “I don’t think so, I lock pricks up for this every day”. Ms Yarnton said the applicant then suggested “what about just smack him around?” and he offered to talk to Mr Yarnton and “tell him you’re a top chick”. Ms Yarnton said she replied “good on you, no problems but he won’t listen cause he’s rooting someone else” (see MFI 43 at Q 53- 64). Ms Yarnton said she didn’t think the appellant was serious. Ms Yarnton said she laughed and “didn’t think anything of it” (see MFI 43 at Q 178).

Ms Yarnton said that on 31 January 2015 at about 10.00am, she received a text message from Ms Hayes saying “Hey I’ve got problems with Fadi, can you, can you chat?”. Ms Yarnton said that she arranged to stop by Ms Hayes’s apartment; and that when she did so, the applicant again spoke to her and said “We’re going to see Dean tonight”, and Ms Yarnton said she replied “please don’t, I don’t need this, Dean is dangerous, Dean will kill you”. Ms Yarnton said that the applicant simply replied, “all will be good”. Ms Yarnton said she then said to the applicant “please don’t, if you hurt him … my kids will never forgive me” but that the applicant replied “it’s already been arranged”. Ms Yarnton said that she asked the applicant to call it off, saying “please I’m telling you to stop, I’ll tell the coppers it was you” but she said the applicant replied, “I’ve done things in the past, and I’ve always gotten away with it … I’m good at torching cars” (see MFI 43 at Q 78-84).

Ms Yarnton said that, after leaving the Oslands in Merrylands Bowling Club late that evening, she was driving on Woodville Road when she noticed a silver-coloured Subaru driving closely behind. Ms Yarnton said she could see the applicant sitting in the front passenger seat and the driver was flashing his lights at her. Ms Yarnton said that she tried to wake Mr Yarnton by shaking him, telling him to wake up, but she said he told her to “fuck off”. Ms Yarnton said that she pulled into an unknown street and parked for 15 minutes in an attempt to hide from the applicant; and that she then began driving down Henry Lawson Drive but pulled over to the side of the road as she felt physically sick about what had occurred. Ms Yarnton said that she got out of the car, turned the hazard lights on and walked into the bush to urinate; and that while she was in the bush she heard “Lebanese males yahooing … like laughing out loudly, talking loudly and it was like it was right in front of me, so it was very loud … it was echoing in the street”. Ms Yarnton said the males were speaking in a foreign language she knew to be Lebanese and said “I’ve heard Lebanese from being in the job” (see MFI 43 at Q 88-108).

Ms Yarnton said that she was afraid and walked deeper into the bush and contacted Ms Hayes by telephone. Ms Yarnton said Ms Hayes told her, “they’re there already … Fadi’s there with his cousins”. Ms Yarnton said that she told Ms Hayes to call it off, but Ms Hayes said “it’s too late, they’ve gassed [the] car”. Ms Yarnton said that she told Ms Hayes that “some cunt was tailgating me from the Meccano set” and said that Ms Hayes replied “yeah that was Fadi and his cuz” (see MFI 43 at Q 110-115).

After Ms Yarnton’s second interview, Ms Yarnton was alone in the interview room with Detective Lawson for a short period of time and continued to speak. Ms Yarnton said to Detective Lawson “I’m asking you female to female, please help me, save me. I’ll give you the loan [sic: lone] wolves and others. Please just don’t charge me with attempted murder” (27/05/19 T 1387.08).

Mr Yarnton gave evidence that, after making a statement to police at Bankstown Police Station on 1 February 2015, he was driven home to Menai by his son and that, later in the day, he was “[l]ooking for answers … as to what happened the previous night [and] started going through stuff under the house, in the garage” (30/04/19 T 104.37) where the family stored things they were not using (30/04/19 T 104.49). Mr Yarnton said that he found an iPhone belonging to his wife and about $3,500 cash in a bag which was inside another bag (30/04/19 T 105.09). Mr Yarnton said that he accessed the phone; looked at his wife’s messages and Facebook account; and noticed messages on Facebook between Ms Yarnton and Ms Hayes, including the messages from the night before (see above). Mr Yarnton said he had met Ms Hayes on one or two occasions; and that she was previously in a relationship with his son during 2014 (30/04/19 T 114.46-T115.05). Mr Yarnton said that he saw the Facebook message Ms Yarnton had sent the applicant and that the message to the applicant was accompanied by “a grid map of all little squares with a – like a little red flag” but he could not recall for what location (30/04/19 T 115.48-49).

A subsequent download of the iPhone did not reveal such a map; nor did the examination by the officer in charge of Ms Yarnton’s Facebook account (see Ex SSS and Ex RRR; 11/06/19 T 1992).

On 1 February 2015, the applicant attended Miranda police station and provided a written statement to police in relation to the theft of his vehicle the night before. In this statement, the applicant said that, between about 8.00pm and 8.30pm the night before, he had parked his car in front of his mother’s house at Rex Road in Georges Hall; that he was with his friend (Moey Rad) at the time; and that he was picked up from his mother’s house by a friend (“Anthony”) and driven home to Caringbah. The applicant was unsure of his friend Anthony’s surname. The applicant said that he usually parked his car at his mother’s house when he did not need it; and that he did not know how his car came to be in Karimbla Road at Miranda (Ex EEEE).

On 2 February 2015, Ms Hayes and the applicant were arrested and charged (6/06/19 T 1886.44-1889.23). The applicant exercised his right to silence.

Ms Hayes participated in a record of interview (not admissible in the case against the applicant). Ms Hayes said she had known Ms Yarnton for two or three years; that Ms Yarnton told her that her husband had sexually assaulted her; and that she had been speaking with Ms Yarnton for some time and Ms Hayes said that “[a]ll the shit that she’s been saying to me for the past few months has been not normal”.

Ms Hayes said that during “the week that just passed” she had met Ms Yarnton at McDonald’s, Caringbah and had coffee (see MFI 44 at Q 97-103); that she walked to McDonald’s from her home nearby (A 106-109); and that the reason they met up was that Ms Hayes understood that the night before “her husband raped her” (see MFI 44 at Q 115) and “bashed her … drag her down the fucking hallway by her fucking hair” (see MFI 44 at 139). Ms Hayes said that at their meeting Ms Yarnton told her she had had enough of her husband and that he was a “fucking pig” (see MFI 44 at Q 141). Ms Hayes said she told Ms Yarnton to leave him “to fuck him off” but said Ms Yarnton told her she couldn’t because she had “too much to lose” (see MFI 44 at Q 167).

Ms Hayes said the pair met for about 20 minutes, after which Ms Yarnton drove her home (see MFI 44 at Q 181); that Ms Yarnton did not go inside her home or speak to anyone else while outside (see MFI 44 at Q 188-190); and that Ms Yarnton, who had “done everything for [her] is locked up for something she shouldn’t be fucking locked up for” (see MFI 44 at Q 204). Ms Hayes said (see MFI 44 at Q 205) that the police were “… fucking doing the wrong thing. He’s a fucking disgusting pig, and has probably set all of this shit up” and that “She’s a fucking beautiful woman, and should not be there” and “I don’t give a fuck what anyone says, that woman should not be there”.

On 5 February 2015, when Ms Hayes was in custody at Silverwater Women’s Correctional Centre, Ms Hayes was interviewed by Joshua Carlson, a senior assistant superintendent (04/06/19 T 1746). Ms Hayes told Mr Carlson that Ms Yarnton had offered her money to murder her husband (04/06/19 T 1748.46). Later that day, Mr Carlson assisted Ms Hayes to prepare a notebook statement, which was subsequently tendered in the Crown case against Ms Hayes (Ex FFF; 04/06/19 T 1751.04).

In Ms Hayes’ notebook statement, Ms Hayes said that about a week before Ms Yarnton called her mobile phone and asked to meet at McDonald’s, Caringbah; that Ms Yarnton told Ms Hayes she couldn’t “Do it anymore”; and that Ms Hayes agreed to meet Ms Yarnton and the pair met at the front of McDonald’s, Caringbah and went inside. Ms Hayes said Ms Yarnton began telling her about “how her husband rapes her … bashes her and the kids…” and Ms Yarnton asked her if she would “knock” her husband (which Ms Hayes understood to mean “murder”). Ms Hayes said that Ms Yarnton told her that she was willing to pay and looked her straight in the eyes and said “this isn’t a fucking joke, I’m not fucking around”. Ms Hayes said she did not say much in response.

Ms Hayes said that, later, Ms Yarnton drove Ms Hayes home and that, when they arrived, Ms Yarnton got out of the car and showed Ms Hayes a bag in the boot containing three envelopes with large sums of cash money inside; and that Ms Yarnton said there was $20,000 and asked Ms Hayes again whether she would “do it”. Ms Hayes said that she answered “no” and that, when she did, Ms Yarnton became agitated and asked to see the applicant. Ms Hayes said that Ms Yarnton asked the applicant “if he could knock Dean, or whether he knew anyone that could do it” and that the applicant declined.

Ms Hayes said that she was in regular contact with Ms Yarnton over the following days; that Ms Yarnton came to see her at her house again and told her that what she had asked Ms Hayes to do was “still going to happen… her husband… owed about $20,000 to loan sharks and bikies for gambling debts”; and that Ms Yarnton asked Ms Hayes to stay in contact with her on Saturday night “so it didn’t look obvious” and gave her $2,000. Ms Hayes said she never agreed to murder Mr Yarnton and that, when asked to do so, she “definitely said ‘no’”.

The first trial involving the applicant in this matter commenced on 15 May 2017 before Lakatos SC DCJ.

Prior to the commencement of that trial, both the applicant and Ms Hayes applied to be tried separately from Ms Yarnton. On 15 May 2017, Lakatos SC DCJ refused the applications for a separate trial in each case. The Crown had submitted that it would assert at trial that Ms Yarnton’s account in her second interview was not truthful. His Honour was of the view that the prejudice caused by Ms Yarnton’s inadmissible assertions was “weakened to some extent” for this reason. His Honour was not satisfied the Crown case against either the applicant or Ms Hayes would be made immeasurably stronger by reason of Ms Yarnton’s assertions in her second interview.

The jury was discharged on 18 May 2017 and the trial adjourned. At that time, Mr Mouhtaris had not been charged and was a witness in the Crown case.

On 22 May 2017, a second trial commenced before Lakatos SC DCJ. At that stage, the Crown case was that it was the applicant who was the person shown in the CCTV footage attending the Coles Express service station at Bass Hill on the evening of 31 January 2015 and purchasing one gas bottle (and stealing the other) (22/05/17 T 33.32).

On 20 June 2017, the jury in the applicant’s second trial was discharged and the trials of all three accused (the applicant, Ms Hayes and Ms Yarnton) were further adjourned (20/06/17 T 949.37).

On 5 July 2018, Mr Mouhtaris was arrested and charged. He exercised his right to silence.

On 11 March 2019, the third trial commenced before Judge Culver. By this time, Mr Mouhtaris had been joined on the indictment as an accused, and the Crown no longer alleged that the applicant attended the Coles Express service station at Bass Hill during the evening of 31 January 2015; rather, the Crown case was that that person was Mr Mouhtaris (14/03/19 T 124.20). The Crown case in relation to the DNA results from the black glove found at the scene by this stage also included the result in relation to a DNA profile consistent with that of Mr Mouhtaris being identified, in addition to that of the applicant.

The applicant made a second application for a separate trial. That application was refused on 15 March 2019. Her Honour accepted that the Crown case against the applicant was circumstantial and that the jury would be invited to consider the combination of circumstances in determining whether the Crown had proved beyond reasonable doubt the applicant’s participation in a joint criminal enterprise as alleged on the indictment. Her Honour said that Ms Yarnton’s second interview “effectively set up a cut-throat position” and made “a number of assertions concerning Mr Houda’s involvement in the events of 31 January and 1 February 2015”. However, her Honour also said there were some potentially exculpatory aspects of Ms Yarnton’s assertions and pointed to the possibility that things allegedly said by the applicant to Ms Yarnton inside the apartment at Caringbah may be “suggestive of a different intention from that required for proof by the Crown for attempt murder”.

Her Honour was not satisfied that the Crown case against the applicant would be “impermissibly strengthened” by Ms Yarnton’s second interview and her Honour was not satisfied that the risk of prejudice to the applicant “survives appropriate directions”. Her Honour said:

On 18 March 2019, the jury were again discharged (18/3/19 T 190.23).

In the course of opening remarks to the jury on 29 April 2019, her Honour said (29/04/19 T 18):

The following day (on 30 April 2019), during Mr Yarnton’s evidence and at the point that the Crown tendered a map (against Ms Yarnton only) of the route driven by Mr and Ms Yarnton from Menai to Merrylands (Ex A), Counsel appearing for Mr Mouhtaris asked her Honour to explain to the jury the process of the evidence being admitted in only one of the accused’s cases and her Honour said (30/04/19 T 68.34-49):

On 27 May 2019, after evidence was given by Detective Lawson about her conversation with Ms Yarnton following her second interview during which Ms Yarnton offered to “give” the police “the [lone] wolves and others” (27/05/19 T 1387.09), her Honour said (27/05/19 T 1395.14-28):

Shortly after this, her Honour gave a similar direction in relation to evidence given by another officer of discussions with Ms Yarnton (27/05/19 T 1412.05).

Then, on 31 May 2019, when the Crown formally tendered Ms Yarnton’s first record of interview, her Honour said (31/05/19 T 1664.16-42) (Ex AAA in case of accused Ms Yarnton):

When the Crown formally tendered Ms Yarnton’s second record of interview (Ex BBB in case of accused Yarnton) (MFI 43), her Honour said (31/05/19 T 1667.20):

On 4 June 2019, when the Crown tendered Ms Hayes’ notebook statement, (Ex FFF in case of accused Hayes), her Honour said (04/06/19 T 1751.08-15):

On 6 June 2019, following evidence about the arrests of Ms Hayes, the applicant and Mr Mouhtaris, her Honour said (06/06/19 T 1889.25-1890.24):

Exhibit DDDD (the communications summary) was tendered towards the end of the Crown case together with various call charge records upon which the communications summary was based (aside from Facebook communications) (see 20/06/19 T 2300-2304).

An Optus representative, Mr David Findlay, gave evidence (see 11/06/19 T 1958) in relation to the interpretation of telephone billing records and call charge records.

As to billing records relating to Ms Yarnton’s telephone number, Mr Findlay agreed that the records “include the duration or length of the phone calls” (11/06/19 T 1959.22) but said that it was not possible from the records to say (“yes or no”) if a person actually had a conversation during those calls (11/06/19 T 1959.29-30).

Forensic testing was carried out on a piece of carpet from the boot of the applicant’s car and the presence of petrol was detected (30/05/19 T 1643.17).

Forensic testing of DNA samples recovered from the inside of the single black glove found at the scene on Henry Lawson Drive identified a mixture of DNA originating from at least three individuals. The applicant and Mr Mouhtaris could not be excluded as major contributors to the DNA mixture (03/06/19 T 1694.04). How and when each accused’s DNA profile was deposited onto the inside of the glove was not capable of being determined (03/06/19 T 1711.36).

A forensic biologist from the NSW Forensic and Analytical Science Service, who was called as an expert witness in the Crown case, explained the results of forensic testing of the single black glove as follows (03/06/19 T 1694.01- 1696.16):

Thus, on the DNA expert’s evidence, there were three scenarios:

In each of the three direct comparisons, the comparative likelihood of the DNA profile originating from: first, the applicant and two unknown, unrelated individuals; or, second, Mr Mouhtaris and two unknown, unrelated individuals; or, third, the applicant and Mr Mouhtaris and one unknown, unrelated individual, was 100 billion times more likely than the DNA profile originating from three unknown, unrelated individuals in the Australian population.

During evidence in chief, the DNA expert gave the following evidence as to “transference” (03/06/19 T 1698.20):

In cross-examination, the DNA expert gave the following evidence as to transference (03/06/19 T 1711.20):

A partial DNA profile from an unidentified “Individual B” was also recovered from the top of the pink cigarette lighter (03/06/19 T 1696.39) and the same “Individual B” could not be excluded as a contributor to a mixed profile originating from at least three individuals on the open/close valve on one of the two gas bottles (03/06/19 T 1697.24).

The Crown submitted that the Monique Hayes (3) telephone was used by the applicant on 31 January and 1 February 2015 (20/06/19 T 2317.19-25); and that both the Anthony Mouhtaris Snr (1) and Anthony Mouhtaris Snr (2) telephones were used by Mr Mouhtaris on 31 January and 1 February 2015 (20/06/19 T 2318.07).

The Crown submitted that the evidence established that both the applicant and Mr Mouhtaris drove in the applicant’s vehicle to the Coles Express service station at Bass Hill (20/06/19 T 2318.30).

The Crown submitted the applicant’s statement to police on 1 February 2015 about the theft of his vehicle the night before from outside his mother’s home in Georges Hall “was a lie to cover up his involvement and the involvement of his vehicle in the commission of the offence” (20/06/19 T 2318.37-38).

The Crown submitted that the evidence established that the applicant, Mr Mouhtaris and possibly other people drove in the applicant’s vehicle to the scene of the incident at Picnic Point, taking with them the two gas bottles obtained by Mr Mouhtaris from the Coles Express at Bass Hill; and that the men took with them “a quantity of fuel”. At 20/06/19 T 2319.05-31, the Crown submitted:

In relation to the DNA evidence, the Crown submitted (21/06/19 T 2347.30-2348.07):

Towards the end of his address, the Crown Prosecutor said (21/06/19 T 2369.37):

Earlier, in the course of addressing the jury about Ms Yarnton’s first interview with police, the Crown Prosecutor had said (21/06/19 T 2350.44-2351.12):

As to Ms Yarnton’s second interview with police, the Crown Prosecutor said (21/06/19 T 2363.17-2365.23):

As to Ms Hayes’ notebook statement, the Crown Prosecutor said (21/06/19 T 2366.41-2367.15):

Following the Crown’s address, her Honour said (21/06/19 T 2373.17-36):

Counsel for Ms Yarnton submitted that Ms Yarnton’s good character (which had been raised during the trial) entitled the jury to reason that she was “less likely to lie or give a false account” (24/06/19 T 2392.30). As to Ms Yarnton’s first and second police interviews, her Counsel submitted at (24/06/19 T 2427.43-2429.10):

Towards the end of her address, counsel addressed the jury further on Ms Yarnton’s second interview and submitted (25/06/19 T 2467.18-2468.49):

Following the address of counsel for Ms Yarnton, her Honour addressed counsel’s reference to the “I, Tonya” movie and directed the jury that they should put out of their minds any consideration of that movie, the case connected with the movie and any outcome of that case. Her Honour directed the jury that those matters were not relevant because they were not in evidence and should not be taken into account when the jury considered their verdicts in each accused’s case (25/06/19 T 2475.03). The applicant here complains that this direction should have been accompanied by a very firm direction that the jury could not use the records of interview of Ms Yarnton in the case against the other accused (though, as noted below, a direction was given in summing up that the jury could not look at what an accused person told the police when considering the position of another accused).

In the course of summing-up, and in the context of directions as to the onus and standard of proof, her Honour said (26/06/19 SU 9-10):

At SU 12-15, her Honour went on to say:

After a short adjournment, her Honour said (SU 23-24):

Her Honour directed the jury as to the absence of good character evidence in the case of the applicant and Ms Hayes (SU 27-28):

As to the accounts given by Ms Yarnton and Ms Hayes, her Honour said (SU 50-51):

Her Honour gave directions as to Ms Yarnton’s good character case (at SU 71 -72):

As to the submissions made by Ms Yarnton’s Counsel about Ms Yarnton’s records of interview, her Honour said (SU 79-80):

Her Honour then summed up the Crown case to the jury by distilling the factual propositions upon which the Crown case was based (SU 63-64):

The specific direction of law her Honour gave in relation to the DNA evidence was as follows (SU 24-25):

Turning then to ground 2 of the grounds of appeal, the applicant submits that, having regard only to the evidence admissible against him at his trial, the jury’s verdict on count 1 was not supported by the evidence and is unreasonable. The principles to be applied under ground 2 are not in dispute and have been summarised above.

The applicant submits that, on a review of only the evidence that was admissible in the Crown case against him, it was not open to the jury to be satisfied of the applicant’s guilt because the Crown could not exclude a reasonable hypothesis consistent with his innocence. In particular, complaint is made that the effect of the DNA evidence was overstated (see 29/04/22 T 2-9).

The applicant submits that, in essence, the Crown case against him depended on seven propositions, as to each of which he submits as follows.

First, that on 31 January and 1 February 2015, the applicant was the user of the telephone number “Monique Hayes (3)”.

The applicant readily accepts that the evidence permitted an inference to be drawn that whoever was the user of the Monique Hayes (3) telephone number was known to Ms Hayes and a person who may have been close to her (or at least in contact with her during January 2015). However, it is submitted that these inferences did not reduce the pool of potential users of the Monique Hayes (3) telephone number to one (i.e., the applicant).

In that context, the applicant accepts that the fact that the Monique Hayes (3) telephone number was used on several occasions during January 2015 to contact two relatives of the applicant is of some relevance to the question as to who may have been using the phone at those times, but the applicant says that it was not clear when those calls had been made. Further, it is said that those calls could equally have been made by Ms Hayes herself, given that she was married to the applicant and may well have also been in contact with his family members. (Pausing here, the fact that Ms Hayes may have used the Monique Hayes (3) number to call members of the applicant’s family members does not account for why she would use a different phone to do so, particularly given that that phone was obviously utilised by another person given the calls made by it to Ms Hayes.)

The applicant says that it is of greater significance that there was no evidence that such a call was made to the applicant’s relatives on 31 January or 1 February 2015. The applicant thus argues that there was only tenuous evidence to prove that the applicant was the user of the Monique Hayes (3) telephone number on 31 January and 1 February 2015.

It is further noted that, even if the applicant was the user of the Monique Hayes (3) telephone number on 31 January and 1 February 2015, the content of any communications that the applicant had at that time either with Ms Hayes or Mr Mouhtaris was not in evidence. It is said that it was the mere fact of contact (rather than any proof as to the nature or purpose of the contact), that was relied on to prove the applicant’s participation in the joint criminal enterprise alleged by count 1.

The applicant says that, aside from the applicant’s assertion in his statement to police that he had been driven to his home in Caringbah by a friend Anthony during the evening of 31 January 2015, there was no evidence as to where the applicant actually was on the night of the offence. Further, it is noted that a significant number of the telephone calls listed in Ex DDDD were calls of durations less than 5 seconds. It is submitted that it is doubtful, particularly in the light of the evidence of Mr Findlay, that these entries in the communications summary were connected calls.

Second, that during the evening of 31 January 2015, the applicant was in the company of Mr Mouhtaris, including when Mr Mouhtaris attended the Coles Express service station at Bass Hill and took possession of the two gas bottles at about 10.45pm. Third, that the applicant’s vehicle was used to drive to and from the Coles Express Service Station at Bass Hill that evening.

As to the second and third propositions, the applicant contends that there was no evidence to prove that he was in the company of Mr Mouhtaris when Mr Mouhtaris attended the Coles Express service station at Bass Hill and took possession of the two gas bottles at about 10.45pm. It is said (the applicant here implicitly accepting that it was Mr Mouhtaris shown on the CCTV footage) that there were three possibilities: that Mr Mouhtaris and the applicant attended together (which was the Crown case); that Mr Mouhtaris attended alone; or that Mr Mouhtaris attended with one or more other people. It is submitted that all three possibilities were equally possible on the evidence as to that event presented during the Crown case.

The applicant argues that there was only very weak support for the proposition that the applicant’s vehicle could be positively identified from the service station’s CCTV footage or even that the vehicle said to be the appellant’s entering the adjacent Strickland Street, was the same vehicle said to be the applicant’s vehicle turning left out of Strickland Street and back onto the Hume Highway. Even assuming that the applicant’s vehicle was driven to and from the Coles Express Service Station at Bass Hill, it is said that the only evidence as to who occupied the vehicle at that time, established that it was occupied by Mr Mouhtaris. Pausing here, the timing of the telephone call at 10.45pm on 31 January 2015 from the Monique Hayes (1) telephone number to the Monique Hayes (3) telephone number was at the time that Mr Mouhtaris was purchasing the gas bottle at the Bass Hill service station. It is inherently implausible that Ms Hayes was calling her husband (the applicant) if he was at home at the time, which at least places the applicant as likely to have been out of the house at that time and it was open to the jury to infer that he was in his own car at the time. As to the complaint made of the CCTV footage showing the silver car, the weight attributed to whether there was one middle rear tail light or not ultimately goes nowhere (see below).

Fourth, that at 12.16am, Ms Yarnton sent the applicant a Facebook message that read “Hey”.

As to the fourth proposition, the applicant says that it was doubtful that the communication was accompanied by a “map grid or flag” (noting that proof of this depended on the evidence of Mr Yarnton and his evidence in this respect found no support from subsequent examinations undertaken by police of the iPhone on which he said he observed it or of Ms Yarnton’s Facebook account). Further, it is said that there was no evidence that Ms Yarnton’s message to the appellant via Facebook was received, read, or replied to by the applicant. It is said that there was no evidence that the applicant accessed Facebook at the relevant time.

Fifth, that at about 1.00am on 1 February 2015, the applicant was still in the company of Mr Mouhtaris, and was present at the scene of the offence (as was his vehicle).

As to the fifth proposition, the applicant says that the only evidence linking him to the scene of the offence was the DNA evidence relating to the black glove. The applicant argues that the Crown case theory (that both the applicant and Mr Mouhtaris shared the same black glove whilst handling various items at the scene, including the gas bottles and a petrol container) seems inherently unlikely.

The applicant submits that there was a fundamental difficulty with the evidence adduced by the Crown from the DNA expert. Noting that the expert advanced three scenarios as “likelihood ratios” (see above), the applicant says that there was no evidence adduced that one of these three scenarios was more likely than the other two; and no evidence of the comparative likelihood of them. It is noted that each possibility was only compared to the likelihood that the mixed profile originated from three unknown, unrelated individuals in the Australian population.

In addition, it is said that the possibility of transference in the circumstances of the applicant’s case could not be discounted, given that the evidence was that the applicant and Mr Mouhtaris lived in the same apartment complex in Caringbah; and there was the very real possibility that Mr Mouhtaris may have been in the applicant’s vehicle on the night of the offence either with the applicant (as the Crown case alleged), or alone, or together with others. It is said that there was no way to establish when and how a DNA profile consistent with the appellant’s DNA profile was deposited onto the inside of the black glove.

Thus, it is said that the DNA evidence was insufficient proof to establish the applicant’s presence at the scene of the offence (and that there was otherwise no evidence the applicant was at the scene of the offence). It is contended that the reasonable possibility that the applicant’s DNA was on the inside of the black glove as a result of transference was not capable of being eliminated; nor was the further possibility that the applicant’s DNA was already on the black glove as at the date of the offence (for example, because it was a black glove otherwise within his vehicle) (reference here being made to Seifeddine v R [2021] NSWCCA 214 at [46]-[50] per McCallum JA, as her Honour then was, Garling and Cavanagh JJ).

The applicant argues that it was critical that the Crown establish that the applicant was present at the scene of the offence because the Crown relied on the alleged acts of Mr Mouhtaris, the applicant and possibly another person or persons while at the scene as proof of any actual attempt having been made to commit the offence alleged by count 1. It is said that, if the Crown could not prove that the applicant was present at the scene and participating in those acts, there was insufficient evidence to prove he was complicit in the particular offence alleged.

As to the alleged presence of the applicant’s vehicle at the scene, the applicant says that this found little support in the evidence of Mr Yarnton (see above) but in any event that proof that the applicant’s vehicle was present at the scene still left open the question as to who was occupying his vehicle at that time.

Sixth, that the applicant was involved soon after in setting fire to his vehicle near to where he lived.

As to the sixth proposition, the applicant argues that there was no evidence that the applicant set fire to his vehicle or was present when that occurred; and that the evidence permitted of more than one reasonable possibility: that the vehicle was set alight by the applicant and Mr Mouhtaris together (as the Crown alleged) and in furtherance of their agreement; that it was set alight by one or either of the two accused alone or in the company of other people; or that it was set alight by the applicant after the fact, the applicant having been made aware either by Mr Mouhtaris or Ms Hayes that the vehicle had been used in the attempted commission of an offence. The location of the vehicle being close to where the applicant lived with Ms Hayes is said to be of little moment because Mr Mouhtaris lived at the same address.

Seventh, that later that day the applicant lied to the police in stating that his vehicle had been stolen the night before from outside his mother’s house in Georges Hall and the reason he lied was because of a consciousness of guilt.

As to the seventh proposition, the applicant says that, even accepting that it was open to the Crown to rely on the applicant’s assertion that his vehicle was stolen from outside his mother’s home in Georges Hall the night as a lie, it remained necessary to assess whether that lie proved a consciousness of guilt of the offence alleged. It is said that the applicant may have lied because of a consciousness of guilt of a different offence (for example, subsequent awareness, either immediately after the attempted offence or sometime the following day, of his potential involvement as an accessory either before or after the fact); or because, by the time he made his statement the following day, the applicant had been told by his wife and/or Mr Mouhtaris enough about the events of the previous evening, and their possible participation in them, to want to protect one or either or both of them from the potential consequences.

It is thus submitted that the combination of circumstances relied on by the Crown could not exclude a reasonable hypothesis consistent with innocence; that it is entirely reasonable to hypothesise that Mr Mouhtaris (and possibly another person or persons) carried out the relevant acts attributed to the applicant, in furtherance of the joint criminal enterprise alleged without the applicant; that it is reasonable to hypothesise that the applicant was not the user of the Monique Hayes (3) telephone number on the night of the attempted offence; and that the applicant was not present at the Coles Express Service Station at Bass Hill nor at the scene, and was not present when his car was set alight (assuming that it was used in connection with one or more of the above events). Further, it is said that, if the applicant lied the following day in making a statement to the police about the theft of his car, it is possible that he did so for a reason or reasons not indicative of a consciousness of guilt.

The applicant says that, because a reasonable hypothesis consistent with innocence cannot be excluded, it follows that there was not sufficient evidence on which the jury could properly convict the applicant; and that the jury ought to have had a doubt as to the applicant’s guilt on the basis that there were inferences consistent with his innocence arising from the admissible evidence. Hence, the applicant maintains that it was not open for the jury to be satisfied beyond reasonable doubt that he was guilty of count 1 on the basis of joint criminal enterprise.

Finally, in relation to ground 2, the applicant raises the possibility that there was an intention falling short of an intention to kill or cause grievous bodily harm.

The applicant points out that the Crown case was that there was an agreement between the co-accused to cause an explosion or fire with the intention of killing Mr Yarnton; and that the scene of the offence demonstrated that an attempt had been made to commit that offence (i.e., that the acts of the accused at the scene were immediately connected with the commission of the agreed crime and could not have had any other reasonable purpose). It is said that the Crown case was that Mr Yarnton, when he woke up inside his vehicle, must have disturbed the attempt to cause an explosion or fire. However, the applicant says that there was only scant evidence that this was in fact the case (and was based almost solely on Mr Yarnton’s evidence that, when he got out of his car, he saw the rear taillights of a vehicle driving away from his location and the fact that a pink cigarette lighter was found on the ground near his vehicle).

The applicant argues (leaving aside Ms Yarnton) that there was no obvious motive for three persons who did not know (or did not know well) Mr Yarnton to agree to cause an explosion or fire with the intention of killing him. It is said that the nature of any agreement between the accused depended significantly on the physical evidence at the scene. The applicant accepts that the physical evidence at the scene was consistent with the agreement being as alleged by the Crown but says that it was also consistent with an agreement short of intending to kill or cause grievous bodily harm to Mr Yarnton (for example, to scare him). It is said that this is particularly so, if the physical acts intended to be carried out at the scene were complete by the time Mr Yarnton woke up inside his car. It is submitted that such a scenario was open on the evidence. Thus, it is submitted that if an intention falling short of an intention to kill or to cause grievous bodily harm was a reasonable possibility, the applicant was also entitled to an acquittal.

Thus, the applicant says that his conviction should be quashed.

As adverted to above, the Crown criticises the approach of the applicant as seeking to attack each strand in the Crown case individually and in a vacuum. The Crown’s position is that, while there are valid points made by the applicant about each strand, when the strands are taken together they leave no doubt about the applicant’s involvement in the plan to kill Mr Yarnton. The Crown emphasises that a central and significant part of the Crown case at trial were the communications, calls and texts made by mobile telephone, and messages and calls over Facebook (see Ex DDDD). Although the Crown accepts that the case against the applicant was not as strong as the case against Ms Yarnton, the Crown maintains that it was not significantly weaker and the Crown emphasises that the strength of the case against the applicant must be seen in the context of a number of strands of evidence considered as a whole (and not analysed piecemeal).

First, the Crown contends that, on the evidence which was admissible against the applicant, it was open to conclude that each of the applicant’s co-accused was part of a joint criminal enterprise to murder Mr Yarnton through the use of fire and/or an explosion.

In this regard, it is noted that the evidence admissible against the applicant included the text messages from Ms Yarnton (in which it is said that Ms Yarnton had expressed what must have been her state of mind regarding Mr Yarnton and the colleague with whom Mr Yarnton was having a relationship) that read: “Karma for this prick and her” and “They can burn in hell the dogs”; the Crown pointing also to the text sent on 30 January 2015 at 10.56pm by Ms Yarnton to Ms Hayes “Fuck I hope you find someone who has the right tools to fix our friend’s car xxx”.

The Crown says that it was open to the jury to conclude that the two bottles of gas obtained by Mr Mouhtaris on 31 January 2015 from Coles Express Bass Hill at 10.43pm were the same bottles found at the crime scene at Picnic Point.

The Crown points to the Facebook messages sent by Ms Hayes to Ms Yarnton around 11.30pm on 31 January 2015 (see above) as displaying a degree of anxiety concerning the execution of the plan; and argues that, in that context, it would not be surprising that Ms Hayes would, if suffering anxiety, call her husband (the applicant), there pointing to the telephone call from Ms Hayes to the Monique Hayes (3) telephone number at 11.38pm (lasting 1 minute and 17 seconds). The Crown says that this telephone call allows for the inferences that the applicant would know why she was suffering anxiety; and (relevantly, as I explain in due course) that the applicant was not with Ms Hayes.

As to the message from Ms Yarnton to Ms Hayes at 11.59pm (“Now he is abusing me he is in the front”), the Crown says that this not only refers to what Ms Yarnton had been relying on to motivate Ms Hayes (i.e., the allegations about the abusive nature of their relationship) but also (and the Crown emphasises this) tells Ms Hayes where Mr Yarnton was in the vehicle.

It is noted that it is after this, at 12.15pm on 1 February 2015, that Ms Yarnton telephoned the Monique Hayes (2) telephone number (this being the first use of this particular telephone number recorded on Ex DDDD). That call lasted only six seconds and was followed by continued calls to the Monique Hayes (2) telephone number before Ms Hayes’ message to Ms Yarnton at 12.48am (see above – “hey my internet went off I had a nanna nap and my cat sat on my face … Lol I’ll see you tomorrow if his being aggressive”). It is noted that, in the interim, there was the Facebook message sent by Ms Yarnton at 12.16.22am on 1 February 2015 to the applicant which read “Hey” (and which, on the Crown case, included a map reference – see further the Crown’s submissions on this below).

The Crown also refers in this context to the series of communications or attempted communications from 12.43am through to 1.03am (see the chronology of events above), including the message from Ms Yarnton to Ms Hayes asking, “Hey where r they” at 12.51am and the message “noone is here” at 12.53am; and the 1.03am message from Ms Yarnton to Ms Hayes which read, “Tell him now”, together with the timing of Ms Hayes’ response to Ms Yarnton (“Okay”) and the 41 second telephone call from Ms Hayes to Mr Mouhtaris (that was recorded as 1.03am but which the Crown points out could have commenced within that minute, i.e. after the last two messages, given that all of the call charge records for that service recorded the hour and minute of any call but not the time in seconds).

Reference is also made to the next series of communications including the 1.10am message from Ms Hayes to Ms Yarnton ( “Go now”), the further messages from Ms Hayes to Ms Yarnton (“Open all windows and tank”) and the further message (“Delete” and then “Everything”), together with the 1.15am message from Ms Yarnton to Ms Hayes (“Done”) after which Ms Yarnton sent a jumping (for joy) emoji.

The Crown says that it is in the period after 1.11am that the applicant and Mr Mouhtaris arrived and participated in applying the petrol and placing the gas bottles, noting that Mr Yarnton attempted his first call to Ms Yarnton at 1.17am, by which time the Crown says that the applicant and Mr Mouhtaris had left and Ms Yarnton was still away from the vehicle in the bush.

The Crown thus argues that the communications and CCTV footage from Coles Express at Bass Hill leave no doubt that Mrs Yarnton, Ms Hayes and Mr Mouhtaris were part of the joint criminal enterprise.

As to the applicant’s involvement, the Crown argues that the telephone records and the timing of communications have even more force when taken with the other evidence, the Crown noting: the applicant’s admission that he and Mr Mouhtaris were together on the relevant night; that a similar car to the applicant’s silver sedan was seen at Coles Express where Mr Mouhtaris obtained the gas bottles; that the applicant’s DNA was found on the black glove at the scene (along with that of Mr Mouhtaris); and that there was no contact between either of the two Anthony Mouhtaris telephone numbers and Monique Hayes (3) during the course of the evening until after the offence.

The Crown argues that the fact of the communications, particularly those between Ms Hayes, Ms Yarnton, and Mr Mouhtaris allows the inference to be drawn that the user of Monique Hayes (3) was involved in the plan to kill Mr Yarnton. In this regard, the Crown says that the mere fact of there being attempted calls and contact is enough to help support the inference that the applicant was involved; and that it is not necessary to know the actual content of the communications.

As to the contention that the applicant was using the Monique Hayes (3) telephone service on 1 February 2015, the Crown notes that the evidence was that Ms Hayes had three mobile telephone services registered in her name; that Ms Hayes’ regular mobile telephone was Monique Hayes (1); and that the Monique Hayes (2) number commenced being used on 1 February 2015 at 12.15am. The third telephone service registered in Ms Hayes’ name was Monique Hayes (3). The Crown argues that it must have been used by Ms Hayes or by someone close to or in contact with her (and, as noted above, the applicant does not dispute this inference). The Crown says that someone other than Ms Hayes must have been using Monique Hayes (3) because of the significant contact between it and Monique Hayes (1); and the Crown argues that the significant contact between the Monique Hayes (1) and Monique Hayes (3) telephone numbers is consistent with the users of those services being in a relationship.

It is noted that calls were made in January 2015 from the Monique Hayes (3) telephone number to the applicant’s sister and to a relative or associate of the applicant. Insofar as the applicant suggests that Ms Hayes may have used the Monique Hayes (3) to call the applicant’s sister and/or the applicant’s associate, the Crown says this is mere supposition. Insofar as the applicant suggests that the calls placed to the applicant’s sister and associate at its highest means that the applicant only used Monique Hayes (3) on those occasions (which were not 31 January 2015 and 1 February 2015), the Crown says that this does not take into account how people use mobile telephones and the fact that Ms Hayes had three registered in her name. It is submitted that it is unlikely that Ms Hayes kept the three phones to herself and lent Monique Hayes (3) to her husband only for him to lend it to another person who was involved in the joint criminal enterprise.

The Crown places weight on the fact that the last contact between Monique Hayes (3) and the two Mouhtaris telephone numbers on 31 January 2015 was at 8.24pm, and that they were then in contact again on 1 February 2015 at 2.10am. In that regard, it is noted that the contact began again shortly after (about 20 minutes) the applicant’s Subaru was reported being set alight at about 1.50am.

Therefore, the Crown contends that the communications between the Monique Hayes (3) and Mouhtaris telephone numbers were consistent with the applicant and Mr Mouhtaris being together and, therefore, present at the crime scene at Picnic Point.

Further, it is noted that, after Mr Yarnton awoke, Ms Hayes was trying to get in touch with both Mr Mouhtaris and Monique Hayes (3) (from 1.31am) by alternating between calling their numbers; accordingly, the Crown argues suggests that getting in touch with one was the same as getting in touch with the other.

The Crown says that whether or not another number, provided to police by the applicant at the time he reported the theft of his car, was investigated does not detract from the evidence pointing towards the applicant being the user of the Monique Hayes (3) telephone number at the relevant time.

As to the applicant’s submission that, even if he was the user of the Monique Hayes (3) telephone number at all relevant times, in the absence of knowing the substance of his communications the mere fact of contact is insufficient, the Crown says that the fact of communication was one part of the Crown’s circumstantial case. Further, the Crown says that the fact that the applicant, using the Monique Hayes (3) telephone number, was communicating at certain times and not at other times (as noted above in regard to the communication history between the Monique Hayes (3) and Mouhtaris telephone numbers), allows the conclusion to be drawn that the applicant was with Mr Mouhtaris (and ultimately the conclusion that he was part of the joint criminal enterprise).

The Crown also points to the applicant’s admission, in his 1 February 2015 statement to the police, that he had driven with “Anthony” (whose surname he was unsure about) from his mother’s house back to Caringbah. The Crown says that, in the context of communications from the Monique Hayes (1) telephone number to the Monique Hayes (3) telephone number, and from the Mouhtaris telephone number to the Monique Hayes (3) telephone number, it is open to conclude that the applicant was not, or did not remain at, his unit but was with Mr Mouhtaris.

As to the placement of the applicant’s car at the Coles Express at Bass Hill, the Crown notes that Mr Mouhtaris was at the Coles Express in Bass Hill and took the two gas bottles at about 10.45pm (and that gas bottles consistent with having come from Coles Express were found at the crime scene at Picnic Point); and that the CCTV footage shows a silver sedan with a consistent shape, taillights and indicator to the applicant’s Subaru at times aligning with the entry into and exit of Mr Mouhtaris from the service station. It is noted that the car turned into Strickland Street less than 60 seconds before Mr Mouhtaris entered the store; and that within 60 seconds of Mr Mouhtaris leaving the Coles Express, a car with the same taillights as the Subaru is seen leaving Strickland Street. The Crown says that there was more than adequate space for this vehicle to park at the premises of the Coles Express. It is submitted that, by parking away from the premises and away from any surveillance cameras, the connection between this vehicle and the purchase of the gas bottles by Mr Mouhtaris is revealed. Further, it is noted that the Coles Express was close to the applicant’s mother’s house where he said he was that night in his statement to police.

The Crown points out that ignitable liquid was found to be present in the boot of the Subaru, suggesting that it could have been used to transport the petrol used in the offence.

The Crown says that the applicant was with Mr Mouhtaris at the Coles Express in Bass Hill. As noted above, the Crown points to the fact that there was no telephone contact between 8.24pm and 2.10am between the applicant and Mr Mouhtaris but that there was phone contact on either side of those times; and that Ms Hayes was trying to get in touch with both Mr Mouhtaris and the applicant from 1.31am, after Mr Yarnton had awoken and after Mr Mouhtaris had twice texted Ms Hayes at 1.25am (which the Crown says was presumably advising that the plan had not been carried out).

Further, it is noted that, just before the silver car left Strickland Street at 10.46am, a call was made from the Monique Hayes (3) telephone number to the Monique Hayes (1) telephone number at 10.45pm, which the Crown says is consistent with confirmation that the gas bottles had been obtained.

As to the submission by the applicant that there are three possibilities in relation to the Coles Express evidence (i.e., that the applicant and Mr Mouhtaris attended together; that Mr Mouhtaris attended alone; or that Mr Mouhtaris attended with others), the Crown says that these possibilities are only equal in a vacuum of other evidence. The Crown contends that the first possibility (the applicant and Mr Mouhtaris together) is most likely because of: the presence of a car similar to the applicant’s vehicle; the applicant’s admission he was with “Anthony” earlier that night; the telephone records suggesting that they were together; the DNA found on the glove at the scene; and the fact that the applicant’s car was destroyed shortly after the events at Picnic Point (and, on the Crown case, the applicant lied about its theft).

As to the “Hey” message sent by Ms Yarnton via Facebook to the applicant at 12.16am on 1 February 2015 (about an hour before Mr Yarnton woke up and called Ms Yarnton to find out what was happening), the Crown points to Mr Yarnton’s evidence that the message was accompanied by a grid and a little red flag (suggesting that Ms Yarnton had sent the applicant a location of where to meet that night). The Crown says that, while Ex RRR does not include such a map, the Cellebrite download from the Huawei mobile telephone which Mr Yarnton had located (Ex TTT) included not only the text message “Hey” but location coordinates. Hence, the Crown maintains that it was open to the jury to accept Mr Yarnton’s evidence as to the existence of a map attachment.

As to the applicant’s submission that there was no evidence that the applicant had ever met or spoken to Ms Yarnton, and no evidence that the message was received or read by the applicant, the Crown points out that the Facebook message goes to show that they were in contact and argues that the fact that it was sent (and the time that it was sent) evidence that there was a link between the two.

As to the DNA evidence, the Crown points out that neither of the applicant and Mr Mouhtaris could be excluded as the major contributor to the mixed DNA profile taken from the inside of the black glove. The Crown says that the most important of the three likelihood ratios was the third, namely that it was greater than 100 billion times more likely to obtain the mixed profile with Mr Houda and Mr Mouhtaris and an unknown unrelated male than if the sample originated from three unknown unrelated individuals. The Crown says that the first two (posing the probability of each of the applicant and Mr Mouhtaris being a contributor as against two unknown contributors) is consistent with the third result. The Crown further says that no one in the trial treated the results in the manner for which the applicant now contends.

The Crown also says that there was other evidence linking the applicant to the scene, namely: the evidence supporting the inference that he was with Mr Mouhtaris whose DNA was also found at the scene; that the gas bottles at the scene were identical to those collected from Coles Express by Mr Mouhtaris when a similar car to the applicant’s was seen; the fact that ignitable fluid was found in the boot of the applicant’s car; and the damage to the applicant’s car.

The Crown argues that the fact that there were three likelihood ratios is not problematic and says that it is misleading to characterise them as three different possibilities; rather, that they are not mutually exclusive and that, together, they provide extremely strong support for the inference that both the applicant’s and Mr Mouhtaris’ DNA were in the glove.

The Crown accepts that there are limitations with the DNA evidence about how the DNA came to be in the glove and the possibility of transference (and acknowledges that the possibilities adverted to by the applicant at [230] of the applicant’s submissions are valid ones). However, the Crown’s position is that this was merely a strand among many in the Crown case. In particular, the Crown says that it is not difficult to imagine the applicant and Mr Mouhtaris taking turns to use the glove (although accepting that it suggests the offence was not very well planned or executed). (Pausing here, that scenario seems to me implausible particularly given the short period of time it is said that the applicant and Mr Mouhtaris were at the scene.)

The Crown further says that Mr Yarnton’s evidence as to the car he saw at the scene (while the Crown accepts this provides little support for the proposition that the applicant’s vehicle was at the scene) did not negate the possibility that it was the applicant’s car. The Crown says that it was other evidence (as referred to above) which supports this proposition, noting that Mr Yarnton’s evidence supported the conclusion that there had in fact been another car at the scene.

The Crown also relies on the communications in Ex DDDD as supporting the conclusion that the applicant was at the crime scene with Mr Mouhtaris (and not with Ms Hayes). (In that regard, the applicant says that the lack of communications from the Anthony Mouhtaris phone(s) to the Monique Hayes (3) telephone from 8.24pm is consistent with the applicant’s evidence that he parked his car outside his mother’s house at Georges Hall between 8.00pm to 8.30pm and was picked up from there and taken home. That, however, does not address the fact that the communications between their phones resumed at around 2.00am, shortly after the applicant’s vehicle was set alight; nor the fact that there were numerous communications between the Monique Hayes (2) and Monique Hayes (3) telephones in that interim period (which cannot be consistent with the applicant being at his home at the time).

The Crown further says that the petrol and gas bottles, together with a lighter, indicate that a fire or explosion was intended. It is noted that Mr Yarnton was asleep in the car. The Crown says that it is most likely that his death did not occur because he awoke or something else frightened away the applicant and Mr Mouhtaris. The Crown maintains that, where almost everything except for the final spark of the light was done to achieve Mr Yarnton’s death, it was open to conclude that his death was intended.

As to the setting on fire of the applicant’s car, the Crown says that the location of the applicant’s Subaru was itself a piece of evidence that contradicted any claim that the applicant or his car had not been involved in the commission of the offence. From that, and all of the other evidence of the applicant’s involvement in the offence, the Crown says that the conclusion was open that the applicant was involved in setting fire to the car to try to destroy evidence.

It is noted that there was little time for the applicant and Mr Mouhtaris, having left Picnic Point, to drive back to Miranda and burn the Subaru and thus little time to consider the possibilities for doing so, other than having been in some way frightened off from completing the intended plan and believing there was a need to cover up the use of the applicant’s car in the commission of the offence.

The Crown argues that it would be fanciful to suggest that the applicant’s Subaru was stolen and set alight only a short distance from the applicant’s home after the commission of the offence at Picnic Point in the context of all the other evidence in the case; and therefore that it was well open to the jury to conclude that it was driven back to where it was set alight by the applicant and Mr Mouhtaris who then left it to return to the unit block where they both lived in Caringbah (which was remarkably close to where they had left the Subaru).

The Crown says that it was therefore open to conclude that the Subaru was set alight to destroy evidence of the applicant’s participation in the crime (whether or not this was an intelligent or successful endeavour). The Crown says that the fact that there was no CCTV footage confirming who set the car alight or whether anyone left the car for the residence of the applicant does not detract from the timing and location of the events.

For the same reason, the Crown says that the applicant lied to police when he made a statement saying that his car was stolen from his mother’s house in Georges Hall that night. The Crown says that if it was open to conclude that the applicant and Mr Mouhtaris burnt the Subaru, then it follows that the applicant lied about it; and that if they burnt the car because of their involvement then it follows that the lie the applicant told must have been for the same purpose.

It is noted that, at trial, it was put on the applicant’s behalf that there was nothing available to show that the applicant had lied; and that other explanations for the applicant’s lie to police (for example: consciousness of guilt for some other offence like being accessory; the protection of Mr Mouhtaris and Ms Hayes) now relied upon by the applicant (see applicant’s submissions at [234]), were not relied upon at trial.

In particular, the Crown says that the possibility of the applicant covering up the guilt of Ms Hayes or of Mr Mouhtaris was not before the jury, which was entirely consistent with the manner in which the applicant’s case was put; and that this is not a matter that should now be able to be relied upon, now that the applicant’s guilt is considered in the absence of his alleged co-offenders.

Overall, the Crown says that, while the applicant may be able to show why there is a reasonable possibility that each circumstance relied on by the Crown is not made out, that is not to the point and falls foul of the caution against piecemeal reasoning in circumstantial cases. It is submitted that there is no need for the Crown to have proven each (or any) circumstance beyond a reasonable doubt; rather, the combined force of all of the circumstances relied on by the Crown proves the applicant participated in the joint criminal enterprise.

As to the contention that there was a reasonable possibility that the plan was not to kill or cause grievous bodily harm to Mr Yarnton (see the applicant’s submissions at [237]-[239]), the Crown says that the physical state of the scene was consistent with an attempt to cause an explosion or fire in order to kill Mr Yarnton. In particular, it is said that the cigarette lighter would not have been needed if the plan was simply to frighten Mr Yarnton; and that the open gas bottle near Mr Yarnton’s head speaks loudly of the intended outcome.

Thus, the Crown submits that when the evidence is considered cumulatively the applicant’s conviction was not unreasonable.

The applicable legal principles have already been summarised above. I am not persuaded that, on the whole of the evidence, the jury must have entertained a reasonable doubt as to the applicant’s guilt. I accept that, as a circumstantial case, if there was a rational inference or hypothesis consistent with innocence that was open on the evidence, then the applicant was entitled to the benefit of the doubt necessarily created by that circumstance (to adopt the language of the authorities referred to above) but I do not see (taking into account the overall evidence) that there was a rational inference (consistent with the appellant’s innocence) that the jury acting reasonably could not have rejected.

There was much emphasis placed in the applicant’s oral submissions on the DNA evidence and the perceived inconsistency between Mr Yarnton’s evidence as to the vehicle he observed at the scene and the CCTV footage of the vehicle passing by the Coles Express and turning into Strickland Street (particularly, as to the absence of a third tail light). As to the former, it became apparent on the Court’s viewing of the CCTV footage that the third taillight was not visible when the vehicle was moving (which supplied a ready answer to that perceived inconsistency). Nevertheless, the applicant maintains that the evidence as to the Coles Express is so weak and tenuous as to amount to a glaring deficit in the Crown case that the applicant was present at the scene.

As to the debate as to the weight to be placed on the DNA evidence in relation to the glove and the possibility of transference, as noted above the applicant submits that the DNA evidence is particularly pertinent, noting that the glove is a moveable item, that the DNA was discovered on the inside of the glove and that the evidence was that it was not possible to put a date range on when the DNA was put there (see the evidence of Officer Barry in his cross-examination; and the expert evidence of Ms Sasadek).

The applicant’s argument is that the third scenario posted by the expert involved the highly improbable scenario that both the applicant and Mr Mouhtaris wore the glove at the scene. The applicant argues that, combined with the fact (undisputed as between the Crown and Mr Mouhtaris) that Mr Mouhtaris obtained the gas bottles and took them (on the Crown case) to the scene, the inference is that it is highly probable that it was Mr Mouhtaris’ DNA in the glove (see T 3).

Having regard to the statistical likelihood ratios themselves, it is noted that the comparison is not as to whether it is more likely that the DNA was from the applicant than Mr Mouhtaris; it is a comparison with unknown related individuals; and thus equivocal.

Thus it is submitted by the applicant that the likelihood ratios (on the expert’s evidence) are all equally possible; and that there is a reasonable possibility (one said to be highly probable by reference to the fact that Mr Mouhtaris obtained the gas bottles) that it was Mr Mouhtaris’ DNA; since transference could not be excluded, reasonable possibility that it was not the applicant’s DNA in the glove could not be excluded. The significance of this for the applicant is that it is argued that the DNA evidence was critical to the Crown case in order to place the applicant at the scene.

I accept that the DNA evidence is of little value. Looked at in isolation (both the evidence to likelihood ratios and the evidence as to transference) it does not exclude the reasonable possibility that it was only Mr Mouhtaris’ glove (and that the DNA evidence taken alone would give rise to a reasonable doubt as to the applicant’s presence at the scene).

However, the timing of the telephone and Facebook communications (coupled with the text of various of the text messages), taken in conjunction with the evidence as to Mr Mouhtaris’ purchase (and theft) of gas bottles from the service station and the evidence of a vehicle appearing to be that of the applicant at the Coles Express when the gas bottles were obtained, to my mind dispels any reasonable doubt that the applicant was indeed part of a joint criminal enterprise to murder or cause grievous bodily harm to Mr Yarnton. The suggestion that there was a reasonable possibility that all that was intended was to frighten Mr Yarnton cannot be accepted, given the presence of the open gas bottles, petrol around the vehicle, and a lighter in the vicinity. While the applicant criticises the Crown case theory as an elaborate plot, the suggestion that the steps taken were no more than a plan to frighten Mr Yarnton seems to me to be an even more elaborate (and frankly implausible) scenario.

There is no rational inference to support a conclusion that Ms Hayes was using both the Monique Hayes (1) and (2) telephone devices to send messages to herself or make calls to herself on the Monique Hayes (3) telephone device; and the only rational inference is that the applicant was the user of the third device (for the reasons that the Crown contends and that have been explored above). Nor is it a rational inference to suggest that the applicant was not with Mr Mouhtaris at the scene (but, was at home with Ms Hayes in, say, another room in his unit). The sequence (and timing) of communications from Ms Yarnton’s telephone device, first, to Ms Hayes (and then from Ms Hayes to the applicant), particularly coupled with the “Hey where r they” and “no One is here” messages is particularly telling (as is the Facebook message to the applicant – which otherwise, on the applicant’s argument would be coming seemingly out of the blue and with no explanation).

The fact that the applicant’s car was set alight shortly after the police had been called to the Picnic Point scene (and so close to where the applicant and Mr Mouhtaris both lived), coupled with the absence of telephone communications between Mr Mouhtaris’ telephone numbers and the Monique Hayes (3) telephone number, supports the conclusion that was an attempt to destroy evidence of the failed attempt at Picnic Point.

In those circumstances (and disregarding the DNA evidence which I accept is of little value), I am satisfied that the verdict of guilty was not unreasonable.

I would dismiss ground 2. In circumstances where I agree with Adamson J as to ground 1, I would therefore propose the following orders:

ADAMSON J: Fady Houda (the applicant) seeks leave to appeal against his conviction on two grounds, the first of which is that a miscarriage of justice was occasioned as a result of his being tried jointly with Sharon Yarnton, one of the co-accused.

Section 29 of the Criminal Procedure Act 1986 (NSW) relevantly provides:

The general rule is that persons charged with committing an offence jointly should be tried jointly: Webb v R (1994) 181 CLR 41; [1994] HCA 30 (Webb) at 89 (Toohey J, Mason CJ and McHugh J agreeing). His Honour qualified the general rule, at 89, as follows:

The rule applies against a background that it is accepted that a joint trial has the potential to cause prejudice to an individual accused. Typical circumstances where a risk of prejudice arises include where one accused, in a recorded interview (which is only admissible against that accused), seeks to blame another accused (against whom the recorded interview is inadmissible). In such cases, the risk of prejudice is generally thought to be capable of being removed or ameliorated by a direction as to the use to which the evidence can be put: Webb at 89.

However, irrespective of whether the discretion to refuse an application for separate trials has been properly exercised, this Court has jurisdiction to set aside a conviction if there has been “injustice to the accused in the manner the trial unfolded”: Caleo v R (2021) 290 A Crim R 352; [2021] NSWCCA 179 (Caleo) at [136] (Bathurst CJ, Beech-Jones and N Adams JJ agreeing) at [136]. In performing this assessment, the directions given by the trial judge must be taken into account: Caleo at [136].

In Caleo at [137], Bathurst CJ endorsed the summary of principles set out by Hunt J in R v Middis (Supreme Court (NSW), Hunt J, 27 March 1991, unreported) (Middis) as follows:

Ms Bashir SC, who appeared with Mr Howell on behalf of the applicant, confirmed that no challenge was made to the refusal of Lakatos SC DCJ and Culver DCJ in respect of interlocutory applications, to order separate trials. However, she contended that the effect of the refusal in all of the circumstances of the trial was to cause a miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW). She submitted that the Crown case against the applicant was significantly weaker than the Crown case against Ms Yarnton but that there was a substantial risk that the Crown case against the applicant would be, illegitimately, made stronger both by the recorded interviews of Ms Yarnton, in which she sought to implicate the applicant, and the recorded interview of Ms Hayes (another co-accused), which tended to support what Ms Yarnton had told police. She submitted that the directions given by the trial judge were insufficient to ameliorate this potential prejudice, which had deprived the applicant of a fair trial.

The gravamen of the applicant’s submission in support of the first ground is that Ms Yarnton, in her recorded interview, sought to exculpate herself by implicating the applicant. By contrast, the applicant denied any role in the joint criminal enterprise and did not seek to cast blame on Ms Yarnton. Further, Ms Bashir contended that the evidence of Ms Hayes, which corroborated Ms Yarnton’s evidence, created a risk of prejudice to the applicant.

In order to address the ground, it is necessary to summarise the evidence which Ms Bashir identified as being prejudicial to the applicant and inadmissible against him.

Police arrested Ms Yarnton at Picnic Point and brought her back to the police station where she confirmed in a recorded interview what she had told them at Picnic Point. Her recorded interview commenced at 7.07am on 1 February 2015. She told police that Dean Yarnton, her husband, was violent towards her. She said that she had been driving him back from Merrylands where they had had dinner with friends when she had wanted to go to the toilet. She said that she had pulled into Picnic Point to relieve herself and that Mr Yarnton had been asleep. She said that she did not know anything about the gas bottles or petrol in their car. She told police that she had heard “hoons” driving around as she was going to the toilet.

She told police that she had seen at the scene at the relevant time a silver car which was the same colour as the applicant’s vehicle, a Subaru Impreza. The first interview concluded at 8.28am.

Ms Yarnton was interviewed again by the police commencing at 4.40pm on 1 February 2015. She told police that, in late January 2015, the applicant had offered to get someone to “knee-cap” her husband or to “knock him [out]” or to “smack him around”. She said that this conversation occurred at the apartment where the applicant lived with his wife, Ms Hayes. She also told police that subsequently, on 31 January 2015, the applicant told her that he and others would be seeing her husband that night; that it had “already been arranged”; and that the applicant had “done things in the past”, which he had got away with and that he was “good at torching cars”.

Ms Yarnton also told police that, while she was driving home from Merrylands on Woodville Road on 31 January 2015, she had seen the applicant’s vehicle flashing lights at her from behind and that the person in the front passenger seat looked like the applicant. Ms Yarnton said that she tried to wake up Mr Yarnton but he could not be roused.

According to Ms Yarnton, she was very scared about what the applicant would do to her husband. She told police that she rang Ms Hayes and asked him to stop her husband from harming Mr Yarnton, to which, according to Ms Yarnton, Ms Hayes said, “It’s too late, they’ve gassed [the] car.”

Shortly after Ms Yarnton’s second police interview, the applicant was arrested by police.

As Ms Yarnton did not give evidence at the trial, the applicant had no opportunity to challenge these versions given in her recorded interviews.

Because Ms Hayes was tried jointly with the applicant, the evidence which was solely admissible against her, such as her recorded interview, was admitted in the trial and heard by the same jury which was responsible for determining the applicant’s guilt. Ms Bashir identified the following two aspects of Ms Hayes’ evidence which she submitted corroborated the account which Ms Yarnton had given in her recorded interview:

The Crown case against Ms Yarnton was that she wanted to kill her husband and had enlisted the help of others (Ms Hayes, the applicant and Mr Mouhtaris) to incinerate him in their own car, a Nissan Navara, but to make it look as if she was not involved. The Crown submitted that her motive arose from the fact that he had been unfaithful to her with a colleague and that the two were soon to part, having agreed on the division of their matrimonial property, which included their house, the sale of which was shortly to settle.

The Crown relied on the following to prove the applicant’s involvement in the joint criminal enterprise to kill Mr Yarnton:

In closing address, Ms Yarnton’s trial counsel relied on what Ms Yarnton had told police in the second interview and described it as “the most plausible account given by her and really the only one that explains what went on.” Her counsel suggested that others, including the applicant, might have taken things into their own hands, intending to help her but actually acting contrary to Ms Yarnton’s wishes.

In the course of final address, Ms Yarnton’s trial counsel said:

The Crown objected to the references to “I, Tonya” in the closing address of Ms Yarnton’s trial counsel, as did the applicant’s trial counsel and trial counsel for Mr Mouhtaris. There was a discussion about an appropriate direction to rectify any prejudice arising from these references. When the jury returned, her Honour directed the jury that they were to decide the case solely according to the evidence. Her Honour further directed them to put out of their minds any consideration of the movie, the case that was connected with the movie and the outcome of the movie or the associated case. Her Honour told them that these matters were completely irrelevant to their deliberations.

Ms Bashir argued that although the Crown case was that Ms Yarnton was lying in her recorded interview, significant aspects of Ms Yarnton’s recorded interview supported the Crown case against the applicant. She submitted that of the matters relied on by the Crown in its case against the applicant (listed above), (1), (2), (4), (5) and (6) were consistent with what Ms Yarnton had said to the police in the interview. Further, she submitted that the reliance placed by Ms Yarnton’s trial counsel on the second recorded interview would have served to underline its significance to the jury.

She submitted that the submissions made by Ms Yarnton’s trial counsel by reference to the “I, Tonya” movie illustrated the prejudice which being tried jointly with Ms Yarnton caused, or potentially caused, to the applicant.

Ms Bashir accepted that the trial judge had directed the jury that it was only permitted to use evidence admissible against a particular accused against that accused and that such evidence had been adequately identified.

She sought to distinguish Caleo from the present case by submitting that, in Caleo, the evidence which was inadmissible against the co-accused was limited to three short paragraphs whereas the evidence inadmissible against the applicant (referred to above) was substantial and figured largely in the trial both in the Crown case and in the defence case of Ms Yarnton.

Ms Bashir identified in her written submissions the various directions given and the steps taken by the trial judge. The Crown accepted that these had adequately been identified. They included the following directions in the summing up:

None of these directions was the subject of complaint. Nor were any further directions sought and not given. The applicant is bound by the conduct of his counsel in that respect: R v Birks (1990) 19 NSWLR 677 at 684-685 (Gleeson CJ, McInerney J agreeing).

I accept that the three conditions in Middis are met in this case. The Crown case against Ms Yarnton was significantly stronger than that against the applicant. She had, after all, a motive to kill her husband (financial and emotional). She had exhibited significant animus against him as a consequence of his infidelity which appears to have been the source of her grievance towards him and the breakdown of their marriage. In the context of this matrimonial drama, the applicant, as the partner of one of Ms Yarnton’s friends, Ms Hayes, was peripheral. Further, the recorded interviews of Ms Yarnton were prejudicial to the applicant (because she sought to implicate him) and inadmissible against him. There was the potential for the jury to reason illegitimately towards his guilt from her recorded interviews.

The narrative which Ms Yarnton gave in her second police interview was repeated in her closing address by reference to the “I, Tonya” movie, with a view to persuading the jury that it was reasonably possible that Ms Yarnton had, unwittingly, given her friends the impression that she wanted her husband to be harmed or killed, when in fact this was not her intention.

It does not, however, follow from the presence of a risk that it ensued or that the conviction ought be set aside. The applicant must establish some positive injustice which could not be, or was not, ameliorated by the directions given by the trial judge. The efficacy of directions to ameliorate potential prejudice needs to be assessed by reference to the particular case: Allen v R [2020] NSWCCA 173 at [112] (Bell P, as his Honour then was, with whom Davies J agreed).

Although weaker than the Crown case against Ms Yarnton, the Crown case against the applicant was, as the consideration by Ward P of the unreasonable verdict ground demonstrates, nonetheless a relatively strong case. It was based on several strands of circumstantial evidence which implicated him in the joint criminal enterprise. Further, the Crown case was that Ms Yarnton was a liar and that her version in her recorded interviews (particularly the second) ought not be accepted. The jury returned a verdict of guilty for Ms Yarnton and therefore can be taken to have excluded her version in the second interview, in so far as it exculpated her, as a reasonably possible hypothesis. In these circumstances, the prospect that the jury illegitimately relied on Ms Yarnton’s version (contrary to the directions given to them by the trial judge) to convict the applicant would appear to be remote. Indeed, I am satisfied that the jury followed the trial judge’s directions and returned a guilty verdict against the applicant based on evidence which was admissible only against him.

Whatever transient impression the references to the “I, Tonya” movie may have made on members of the jury, the unequivocal direction given by the trial judge to disregard what had been said about it was given swiftly after the movie had been referred to in Ms Yarnton’s closing address. In my view, her Honour’s direction was sufficient to remove any prejudice which might otherwise have arisen from such references.

For the reasons given above, I am not persuaded that the applicant has been, by being tried with Ms Yarnton (and Ms Hayes), deprived of a real chance of acquittal.

In relation to ground 1, I propose the following orders:

As to ground 2, I have had the benefit of reading the reasons of Ward P in draft and gratefully adopt her Honour’s extensive summary of the evidence and the submissions. Having reviewed all of the evidence in the trial, I am satisfied that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt of count 1. Accordingly, I agree with the orders her Honour proposes in relation to ground 2, substantially for the reasons given by her Honour.

DHANJI J: I have had the significant benefit of reading the reasons of Ward P and Adamson J in draft form. I agree with the orders proposed by their Honours. Having conducted my own assessment of the case against the applicant, the reasons of Ward P reflect the reasons for my agreement in relation to ground 2. The reasons of Adamson J in relation to ground 1 reflect the reasons for my agreement in relation to that ground.