R v Fernando & Ors

1. [1]

   HER HONOUR: On 6 August 2021 Mr Leslie David Fernando, Mr David Richard Beale, Ms Stacey Kelly-Greenup, Mr Lional Charles McGrady, Mr Michael Thomas Porter, Mr Jeremy Owen James Smith, and Mr Shane Keith Weatherall were arraigned on a charge that on 30 December 2019, they murdered Mr Vergel Velasquez at Girraween in the State of New South Wales.

2. [2]

   The joint trial of the accused commenced before me on 11 July 2022. At that time, it was intended to be a trial with a jury.

3. [3]

   On 11 August 2022, after a number of pre-trial applications resulted in the exclusion of evidence in the Crown case against Mr McGrady, Mr Porter, Mr Smith, Ms Kelly-Greenup and Mr Weatherall, on the application of all accused and consented to by the Crown, an order was made in accordance with s 132 of the Criminal Procedure Act 1986 (NSW) that the joint trial of the accused proceed without a jury.

4. [4]

   On that day the accused were rearraigned before me and each entered a plea of not guilty.

5. [5]

   When the Crown opened its case, the legal liability for murder of each of the accused was expressed in the alternative: Either their participation in a joint criminal enterprise to assault the deceased and to inflict grievous bodily harm, in the course of which he was fatally assaulted by one of Mr Fernando, Mr Beale, Mr McGrady, Mr Porter or Mr Weatherall, with Mr Smith and Ms Kelly-Greenup present and intending to encourage each of their co-offenders to assault the deceased (that is, a joint criminal enterprise to inflict grievous bodily harm simpliciter), or their participation in a joint criminal enterprise to assault the deceased and to cause him harm, again in which they each either physically assaulted the deceased or intentionally assisted the others to assault the deceased and, in addition, where they each foresaw the possibility that in the course of committing that assault one (or more than one) of them would inflict grievous bodily harm, with the intention of inflicting harm of that kind (that is, murder on the basis of an extended joint criminal enterprise).

6. [6]

   At the close of the evidence in the Crown case, the Crown abandoned any reliance upon a joint criminal enterprise simpliciter as a basis for the liability of any of the accused for the deceased’s murder. The Crown case against each of the accused for the murder of the deceased was left solely on the basis of an extended joint criminal enterprise.

7. [7]

   The Crown called evidence from 25 witnesses, including expert evidence from Dr Little, a forensic pathologist, Dr Collins, a forensic biologist and two crime scene officers. A number of crime scene photographs and an ISRAPS of the crime scene were tendered. Statements from nine civilian witnesses were tendered by consent. [1]

8. [8]

   A schedule evidencing the movements of the accused on 30 December 2019, either on foot or travelling in a white Holden Commodore recorded on a number of CCTV cameras operating in private, commercial premises or public places (including in the environs of the deceased’s home at Girraween at or around 4pm) was tendered, together with the accompanying CCTV footage and a number of still photographs taken from that footage.

9. [9]

   A schedule of text and telephone contact between Ms Kelly-Greenup and Mr Smith between 29 and 31 December 2019 and 4 January 2020 was also tendered. [2] Apart from the attempts Mr Smith made to contact Ms Kelly-Greenup on the afternoon of 30 December 2019, the schedule was admitted only against Ms Kelly-Greenup and Mr Smith.

10. [10]

    Each of Ms Kelly-Greenup, Mr McGrady and Mr Smith participated in electronically recorded interviews in May or June 2020. They were tendered in the Crown case against those three accused as capable of constituting admissions by them against interest and, in the case of Ms Kelly-Greenup, as containing a number of deliberate lies told from a consciousness of guilt.

11. [11]

    At the close of the evidence in the Crown case on 2 September 2022, counsel for each of the accused applied for a directed verdict of acquittal. Comprehensive written submissions by each of defence counsel were filed addressing alleged deficiencies in the evidence were filed. The Crown filed written comprehensive submissions in response.

12. [12]

    On 6 September 2022, I ruled that each of the accused had a case to answer.

13. [13]

    Other than a document tendered by Mr Coady in Mr Weatherall’s case, there was no defence case for any of the accused. [3] None of the accused gave evidence.

The Crown case in broad outline

1. [14]

   In very broad outline, it is the Crown case that shortly before 4pm on 30 December 2019, the deceased was physically assaulted in the ground level carpark area of his home unit block at Girraween by Mr Fernando, Mr Beale, Mr McGrady, Mr Porter and Mr Weatherall, in the course of which one of them struck him in the area of the left parietal area of his skull with a weapon causing a comminuted skull fracture with radiating fractures into the right parietal area and the right temporal bone. Those fractures were associated with both acute intracranial haemorrhages (being a combination of subdural extradural and subarachnoid haemorrhages) and with haemorrhagic contusions on the brain tissue.

2. [15]

   After the arrival of emergency services at the deceased’s home unit at 4:26pm in response to the triple-0 call sent at 4:02 pm by Ms Kol (one of the residents of the unit block), the deceased was transported unconscious and unresponsive to Westmead Hospital where a series of CT scans were performed prior to emergency surgery.

3. [16]

   Those scans revealed an acute intracranial haemorrhage overlaying the right cerebral convexity which was considered to be a combination of subdural, extradural and subarachnoid haemorrhages, measuring up to 1.7cm in thickness. Haemorrhagic contusions were seen in the underlying brain, in particular in the parietal regions bilaterally, which were associated with a comminuted fracture in the left parietal area of the skull with a radiating fracture into the right parietal area and the temporal bone below the area of the right ear. Bilateral nasal bone fractures were also noted.

4. [17]

   Despite an emergency decompressive craniotomy and evacuation of the subdural haematoma (in the course of which a large linear skull fracture was noted associated with arterial haemorrhage and dural and brain laceration evident along the fracture line), the deceased was diagnosed, post-operatively, with severe traumatic brain injury with high intracranial pressures, which proved resistant to medical and surgical measures. There was an absence of brainstem reflexes.

5. [18]

   Mr Velasquez was pronounced deceased in the intensive care unit at Westmead Hospital at 5:25pm on 31 December 2019.

6. [19]

   It is the Crown case that the five accused (Mr Fernando, Mr Beale, Mr McGrady, Mr Porter and Mr Weatherall) who were engaged in the physical assault on the deceased in the carpark, were parties to a joint criminal enterprise to assault him and cause him harm and that the principles of extended joint criminal enterprise render them liable for his murder. It is the Crown case that each of the assailants had foresight of the possibility that in the course of the assault in which they jointly participated, one or more of them would do an act causing the deceased to suffer really serious injury with the intention of causing injury of that kind in circumstances where at least two of them were armed with a weapon. It is the Crown case that the sole motive for the assault on the deceased in which the five accused physically participated was in retribution or retaliation for the deceased’s sexual assault on Ms Kelly-Greenup. It was the Crown case that each of them was motivated to enter into an agreement to assault the deceased for that reason, the formation of which predated 30 December 2019.

7. [20]

   It is the Crown case that Ms Kelly-Greenup and Mr Smith were also parties to the same joint criminal enterprise to assault the deceased and although they were not physically engaged in the assault, they were present (watching the assault), intending by that fact to encourage their co-offenders to assault the deceased. It is the Crown case that Ms Kelly-Greenup published the allegation of sexual assault to one or more of the accused and that she and Mr Smith joined in the agreement to assault the deceased in retribution or retaliation for that sexual assault. On the Crown case, the principles of extended joint criminal enterprise also render those two accused liable for the deceased’s murder because they each had foresight of the possibility that in the course of the assault one or more of their co-offenders would cause the deceased to suffer really serious injury with the intention of causing injury of that kind.

8. [21]

   An autopsy was conducted at the Department of Forensic Medicine at 10:30am on 6 January 2020. The direct cause of death was reported by Dr Little as “blunt force head injury and its sequelae”. In coming to that conclusion Dr Little reviewed the CT report associated with the CT scans performed prior to surgery. CT scans performed post-mortem confirmed evidence of a large right craniotomy (surgically performed) which was associated with significant subarachnoid and extra axial haemorrhage over the entire scalp. Dr Little reported no lacerating or abrasive injury to the scalp overlying the skull fractures.

9. [22]

   Neuropathological examination of the brain also showed evidence of surgical intervention together with widespread evidence of blunt force trauma including stains on the brain tissue evidencing diffuse traumatic injury. As Dr Little explained in her evidence at the trial, these injuries caused the brain tissue to swell impairing blood flow and oxygenation to the brain tissue leading eventually to the deceased’s brain death.

10. [23]

    There was no issue taken in the trial by any of the accused that the blunt force injury to the deceased’s head in the left parietal area of his skull was the direct cause of his death. Additionally, in the closing submissions of defence counsel, no issue was taken with the fact that the fatal injury was inflicted in the course of an assault on the deceased in the ground level garage area of his home unit at about 4pm on 30 December 2019.

11. [24]

    A team of specialist crime scene officers attended the deceased’s home unit at 7:10pm on 30 December 2019. Crime Scene Officer Paul Weldon prepared a statement extending over 179 paragraphs relating to his examination of the crime scene, including collecting and recording various physical items and forensic samples recovered from the crime scene. [4] He also took a large number of photographs, some of which were annexed to his statement and other separately tendered as part of the evidence in the trial. [5]

12. [25]

    A number of crime scene markers were positioned to identify areas of blood staining or apparent blood staining in the downstairs carpark area and internal tiled foyer. Two markers, “C” and “D”, identified the position of a house brick and an area of blood staining nearby. The brick was not “in” the area of the blood staining but located near it. A small brick fragment was also located in that general area. Other evidence in the trial confirmed that the fragment was likely broken from the house brick at marker “C”. A loose stack of bricks was located nearby with two other bricks separated from the stack.

13. [26]

    A number of areas of what were described by Officer Weldon as “bloodstains” were identified on the doors to garages 4 and 5, on a concrete pillar and on a car parked near the pillar. A trail of blood stains extended from the carpark into the tiled foyer area where the deceased was found by ambulance officers and where he had been treated earlier that afternoon before being transferred to Westmead Hospital.

14. [27]

    There was no scientific evidence adduced by the Crown concerning the likely manner in which the blood stains were left or deposited, or the possible range of transfer mechanisms. Moreover, there was nothing in the general appearance of the stains from which I could draw any inference to support a finding that the deceased was forcibly pushed against the roller doors or the concrete pillar as distinct from him falling or brushing against those surfaces (and transferring blood in the process). The parties did not invite me to undertake that analysis as the tribunal of fact in any event.

15. [28]

    Although samples were taken for DNA analysis (to which I will refer later in this judgment), there was scant, if any, other evidence collected from the crime scene that informed the resolution of the facts in issue in the trial, principal among them being whether the assault on the deceased was perpetrated by five of the seven accused, that is, the case the Crown advanced in closing address against Mr Fernando, Mr Beale, Mr McGrady, Mr Porter and Mr Weatherall, with at least two of them armed with weapons.

The accused’s cases in broad outline

1. [29]

   Again, in very broad outline, it was the primary case for each of the accused that although the evidence was capable of establishing their presence in the ground level carpark area when the deceased was fatally assaulted, the Crown had failed to establish that their presence at that place and at that time was because of the existence of a joint criminal enterprise of the nature and scope alleged by the Crown.

2. [30]

   Each of the accused further submitted that to the extent that I was satisfied of the existence of a joint criminal enterprise of the nature and scope contended for by the Crown as a fact fundamental to proof of their guilt and, to the extent that I was also satisfied that each of the accused were parties to an agreement to assault the deceased, a further fact fundamental to proof of guilt, namely, that they each had foresight of the possibility that in the course of the assault one or more of them might do an act which resulted in the deceased suffering grievous bodily harm with the intention of inflicting harm of that kind had not been established, in large part because the accused submitted the Crown’s “two weapons theory” was unsupported by the forensic evidence.

Some directions of law

1. [31]

   It will be necessary later in the judgment to identify the legal principles inherent in the concept of extended joint criminal enterprise where murder is the crime alleged. It will also be necessary at that time to articulate the directions by which I will be bound in determining whether the evidence adduced by the Crown in proof of the guilt of each of the accused, and the facts which I am satisfied are established by that evidence (including facts established as a matter of inference from facts established by that evidence) proves the guilt of each of the accused beyond reasonable doubt.

2. [32]

   Suffice at this time to give myself the following fundamental direction: in identifying the factual issues in dispute in the trial, and in considering whether those that are capable of resolution support the inference of guilt for which the Crown contends, I am conscious, and direct myself accordingly, against the risk of inverting the burden of proof. That is, I am conscious, and direct myself accordingly, that consistent with the entitlement of each of the accused to the presumption of innocence, they bear no legal or evidential burden of establishing any fact or series of facts (or circumstances) that might either prove their innocence or which might raise a reasonable doubt as to their guilt.

3. [33]

   I also direct myself that the accused bear no burden of establishing any reasonable hypothesis consistent with their innocence, whether on the basis of the facts or circumstances that I am satisfied are positively established by the evidence or which fairly arise on the evidence. After full weight is given to the facts and circumstances which I am satisfied are established by the evidence, I direct myself that in discharging the legal burden of proving the guilt of each of the accused beyond reasonable doubt, the Crown is obliged to negative any reasonable possibility that there remains a reasonable, that is, a rational, hypothesis that is inconsistent with the guilt of the accused, or any one of them. [6]

4. [34]

   It is also appropriate at this time that I direct myself that in reasoning to verdicts against each of the accused, I may only take into consideration the evidence admissible against that accused. In this trial, that translates into the following direction: in determining whether the Crown has proved the participation of each of the accused in a joint criminal enterprise to assault the deceased and, if I am satisfied of that fact beyond reasonable doubt, whether I am also satisfied that each of the accused had foresight of the possibility that one or more of them would cause the deceased to suffer really serious injury with an intention of inflicting injury of that kind, I must confine myself to the evidence admissible against that particular accused.

5. [35]

   In this trial, apart from the three ERISPs in which the accused Ms Kelly-Greenup, Mr McGrady and Mr Smith participated, and that part of the schedule of telephone contact which included actual text message exchanges between Ms Kelly-Greenup and Mr Smith which was only tendered against those two accused, [7] and the evidence of Ms Marlene Wood tendered in Mr Weatherall’s case, [8] all of the evidence in the trial was admitted, without objection, against each of the accused.

6. [36]

   I also note that save for the tender of the three ERISPs of Ms Kelly-Greenup, Mr McGrady and Mr Smith, relied upon by the Crown as containing admissions by those accused (and in the case of Ms Kelly-Greenup, as containing lies told with a consciousness of guilt), the Crown case against each accused is based on a range of individual facts and circumstances which, in the Crown’s submission, when considered together compel a finding that each is guilty of murder beyond reasonable doubt because no other rational hypothesis consistent with the innocence of any of the accused remains open on the evidence.

General observations of the nature of the evidence in the Crown case

1. [37]

   There were no eyewitnesses to the fatal assault on the deceased. There was a single witness, Ms Brittany Sampson, whose evidence was relied upon by the Crown to establish the presence of each of the accused in the ground level carpark at the time of the assault.

2. [38]

   Other than the accused Mr Beale, who Ms Sampson did not know either by name or by association, the Crown submitted Ms Sampson effectively identified each of the remaining five male accused as present in the ground level carpark by the various nicknames by which they are commonly known and by which they were known to her, and that she also effectively identified Mr Beale as also present in the carpark having seen him earlier in the deceased’s unit.

3. [39]

   Ms Kelly-Greenup and Ms Sampson were friends. Ms Sampson gave evidence that she was with Ms Kelly-Greenup in the carpark at the time of the assault.

4. [40]

   Apart from Ms Sampson describing Ms Kelly-Greenup and Mr Smith standing with her in some unidentified area of the ground level garage at or about the time that other evidence establishes residents of the unit block heard sounds associated with “a fight”, Ms Sampson gave no evidence of where any of the remaining five male accused were located, either relative to each other or the deceased, or relative to any of the parked cars, including a white Commodore station wagon which the evidence established was the vehicle in which each of the six male accused had arrived at the deceased’s home unit by about 3:30pm and the vehicle in which, on the Crown case, the six male accused left the carpark at about 3:58pm. [9]

5. [41]

   Ms Sampson gave no evidence of seeing any of the accused Mr Fernando, Mr Beale, Mr McGrady, Mr Porter or Mr Weatherall assaulting the deceased. Further, although she gave evidence that while she was standing with Ms Kelly-Greenup and Mr Smith she was alerted to what she described as the anguished screams of the deceased, she was not invited by the Crown to appoint where the deceased was when she heard his screams referable to any photographs or maps of the carpark, or where the deceased was when she went to attend to him or, for that matter, where any of the seven accused were at that time.

6. [42]

   Given the wide-ranging challenge to Ms Sampson’s credibility and reliability by counsel for each of the accused, and given the Crown’s reliance on her evidence to establish the presence of each of the accused when the deceased was assaulted (a fact fundamental to proving their participation in the joint criminal enterprise), it will be necessary to give close consideration to her evidence and what it is capable of establishing about the facts in issue in the trial.

7. [43]

   Although there were no eyewitnesses to the assault, there was evidence from three residents of the unit block each of whom heard sounds, including raised voices, both male and female, consistent with an assault taking place a short time before one of the residents, Ms Kol, placed a triple-0 call at 4:02pm. It will also be necessary to give close consideration to that body of evidence and, in combination with other evidence, including Ms Sampson’s evidence, what it is capable of establishing about the facts in issue in the trial, including the presence of the accused in the carpark area of the unit block at the time the sounds of “a fight” were heard and the departure of the six male accused from the unit block in the white Commodore at 3:58pm. [10]

8. [44]

   Two other witnesses, Mr Olla and Ms Plasto, who were visitors to the deceased’s unit on 30 December 2019 gave uncontested evidence of their observations of a number of people, including the deceased, in the carpark area as they left through a rear gate moments earlier, while two other visitors, Mr Daniel and Ms Joukhador, gave uncontested evidence of seeing Ms Kelly-Greenup and Ms Sampson leave the unit block on foot after seeing the white Commodore drive away.

A further elaboration of the Crown case

1. [45]

   Before undertaking a detailed examination of the evidence relied upon by the Crown in proof of the guilt of each of the accused, it is both important and useful at this stage in my deliberations to return to that aspect of the Crown case against each of the accused which is based upon the forensic evidence.

2. [46]

   The Crown submitted in closing address that the evidence of the forensic pathologist, Dr Little, and the evidence of the forensic biologist, Dr Collins, when considered together with the evidence of the crime scene officers, allows for a finding that the chipped house brick recovered from the carpark proximate to a pool of the deceased’s blood was in fact used, or was likely to have been used, to inflict the fatal head wound.

3. [47]

   In the course of his closing submissions, the Crown prosecutor submitted that because a mixture of Mr McGrady’s DNA and the deceased’s DNA was identified in a single trace swab from multiple edges of the house brick, it would be open to me to find that Mr McGrady wielded the house brick under significant force at the back of deceased’s head causing the blunt force injury which was the direct cause of his death.

4. [48]

   The Crown submitted that were I to find as a fact that the house brick was implicated in the deceased’s murder in that way, I would have no difficulty making a further factual finding that Mr McGrady intended to cause the deceased grievous bodily harm when he wielded the brick at his head and, in those circumstances, irrespective of any verdict I might return against the other six accused, it would be open to me to convict Mr McGrady of murder.

5. [49]

   Given the way the Crown opened its case, and the formal basis upon which the Crown closed its case before each of the accused advanced a no case submission, namely that the basis for liability in each of the accused, including Mr McGrady, was on the basis of an extended joint criminal enterprise in which they each intentionally participated, I direct myself that it is not open to the Crown to seek a verdict against Mr McGrady based solely upon any finding I might make that he deliberately wielded a house brick at the deceased’s head with the intention of causing him grievous bodily harm and that the deceased died from that injury. [11] That is, I direct myself that it is not open to me to return a verdict of guilty against Mr McGrady on the basis that he acted unilaterally in deliberately striking the deceased to the head with the intention of causing grievous bodily harm. If the Crown intended to seek a verdict against Mr McGrady on the basis that he was party to a joint criminal enterprise to assault the deceased and to harm him, but that in execution of that agreement he exceeded the scope of that agreement when he unilaterally and spontaneously picked up a house brick that happened to be in a nearby pile of bricks and struck the deceased to the head, the Crown should have opened its case on that basis in order that Mr McGrady’s defence could be conducted with that knowledge. I am fortified in giving myself that direction by the Crown case statement, filed pursuant to s 142 of the Criminal Procedure Act 1986 (NSW), in which the Crown expressly eschewed any reliance on the individual assaultive actions of the five accused who, on the Crown, case physically assaulted the deceased in seeking a verdict against any of them, as distinct from what the Crown described as its reliance upon “the collective nature of the adventure”, that is, the actions of the accused as members of a joint criminal enterprise”. [12]

6. [50]

   The Crown remains entitled to seek a verdict against Mr McGrady for the deceased’s murder referable to the DNA evidence collected from the house brick if the Crown establishes that he was party to a joint criminal enterprise to assault the deceased and, in executing his role as a party to that agreement, he removed a house brick from a pile of house bricks in the carpark area which he then wielded at the head of the deceased with the intention of causing grievous bodily harm while others were physically assaulting the deceased, one of whom was also wielding a weapon.

7. [51]

   A further defining feature of the Crown prosecutor’s closing address in the case he sought to make against each accused according to the principles of extended joint criminal enterprise concerned Dr Little’s identification of a non-fatal deep lacerating injury to the deceased’s forehead, which, as with the fatal head injury, was an injury Dr Little described as delivered under significant force.

8. [52]

   In the Crown’s submission, Dr Little’s identification of the injury to the deceased’s forehead, without any underlying skull fracture and without any obvious area of abrasion around the wound site from contact with the abrasive rough surface of the brick, allowed for a factual finding that the house brick was not used to inflict that injury. In the Crown’s submission, that finding, coupled with Dr Little’s evidence in cross-examination that it was highly unlikely that even a very severe bare fisted punch would have caused the laceration to the forehead, compelled the making of a further factual finding that there must have been a minimum of two weapons (possibly more) but certainly two weapons used in the course of the assault on the deceased, and it follows there must have been more than one assailant physically engaged in the assault.

9. [53]

   The weapon which caused the lacerating injury to the deceased’s forehead was not located at the crime scene and was not otherwise described in the evidence available to the Crown in proof of its case. The Crown submitted it would be open to me to find from the facts that the second weapon (whatever it was) was brought to the deceased’s unit in the white Holden Commodore and removed from the scene when the six male accused left the deceased’s unit in that vehicle after the assault.

10. [54]

    As I will make clear when I move to consider Dr Little’s’ evidence in detail later in these reasons, I consider it significant that there was no forensic evidence as to the shape, contour or weight of the so-called second weapon (or the material that might have been involved in its construction) and that no attempt was made by the Crown to adduce admissible evidence from Dr Little concerning that issue.

11. [55]

    In the Crown’s submission, despite there being no eyewitnesses to the assault, and no evidence of anyone seeing any of the accused armed with weapons at any time, and only one witness, Ms Sampson, whose evidence is broadly capable of identifying each of the seven accused as present in the ground-level carpark at the time the deceased was fatally assaulted, I would find, as a matter of inference from all of the evidence, that there was a minimum of two weapons wielded at the deceased’s head and, by implication, two assailants in the group of five of the male accused physically participating in the assault.

12. [56]

    In the Crown’s submission, those related factual findings which underpin the Crown’s two weapons theory, taken together with all the evidence in the Crown case which places each of the accused in the carpark area of the deceased’s home unit block when he was fatally assaulted, inclusive of the fact that the seven accused congregated in the carpark area of the deceased’s unit that day within 30 minutes of the assault, was capable of establishing the existence of the joint criminal enterprise to assault the deceased, and that each of the accused must also have had foresight of the possibility that in the course of the assault on the deceased at least one of them would inflict grievous bodily harm on the deceased (with a weapon) and that person would act with the intention of causing harm of that kind.

13. [57]

    That submission was advanced by the Crown in order to meet what the Crown must fairly have anticipated would be the case for each of the accused that the Crown could not discount the reasonable possibility that one of the accused, acting unilaterally, spontaneously launched an assault on the deceased and, in the process of that assault, armed himself opportunistically with a makeshift weapon seized from somewhere in the garage which he wielded at the head of the deceased (likely with two separate blows, one of which was fatal and the other resulting in the lacerating injury to the deceased’s forehead) and, in the same assaultive episode, that accused delivered other blows to the deceased’s body before the deceased succumbed to the assault.

14. [58]

    I note that both Mr Smith and Mr McGrady gave an account in their ERISPs broadly consistent with that scenario. Mr Smith named Mr Fernando as the assailant armed with a piece of wood. Although Mr McGrady told police he did not see what happened to the deceased (because he was with Mr Smith who was talking to Ms Kelly-Greenup and Ms Sampson and was hoping to be offered a “twirl” of Mr Smith’s “ice” pipe) he said he heard screaming and when he saw the deceased lying on the ground near the stack of bricks, he saw what he described as “a (wooden) table leg” square in shape lying on the ground not far from the deceased.

15. [59]

    The submission that the Crown could not exclude the reasonable possibility of one assailant acting unilaterally in launching and perpetuating the assault on the deceased in which the fatal blow was inflicted, and that the Crown could not discount the reasonable possibility that it was that person who launched the assault on the deceased with a makeshift weapon seized opportunistically from within the garage area, was a submission also advanced in closing submissions on behalf of the remaining four male accused and Ms Kelly-Greenup.

16. [60]

    Counsel for Mr Fernando, Mr Beale, Ms Kelly-Greenup, Mr Porter and Mr Weatherall submitted that scenario was left open at the close of the Crown case, in large part, because of the way in which the Crown conducted its case, including the Crown’s reliance on the evidence from Dr Little in closing submissions in promoting the Crown’s two weapons theory.

17. [61]

    In the submissions of defence counsel, a fact fundamental to proof of the Crown case, namely that there were multiple weapons wielded by multiple assailants, was not established by the evidence adduced by the Crown from Dr Little and was not otherwise the subject of report by her in the documents tendered. They also submitted it was not a fact-based theory susceptible to proof by inference from the objective evidence collected (and photographed) from the crime scene.

18. [62]

    Defence counsel submitted that in circumstances where there remained at the close of the Crown case a fundamental deficiency in the evidence capable of supporting the two weapons theory, it was not open to me to find, by the deployment of inferential reasoning from the objective forensic evidence, including the evidence from the crime scene or from the items submitted for forensic analysis, that there was a group assault on the deceased as contended for by the Crown. In those circumstances, they submitted each of their clients must be acquitted.

19. [63]

    In considering those submissions, it will be necessary to give close consideration to Dr Little’s evidence and the various documentary exhibits tendered by the Crown through her. At that time, it will also be necessary to direct myself that care must be taken before any fact in dispute that is not the subject of direct evidence, admission or concession is susceptible to proof by inference from other facts that are established by the evidence.

The Crown case as to the factual liability for each of the accused to be convicted of murder

1. [64]

   In his closing address, the Crown prosecutor submitted that the liability of each of the accused for murder on the basis of an extended joint criminal enterprise was grounded in proof of the following facts:

   1. (1)

      At some unspecified time between 27 and 30 December 2019, each of the accused agreed that the deceased should be assaulted in retaliation or retribution because (they had heard that) the deceased had sexually assaulted Ms Kelly-Greenup; [13]

   2. (2)

      At some unspecified time after 27 December 2019, each of the accused agreed that they would assemble at the deceased’s unit on 30 December 2019 to carry out that agreement;

   3. (3)

      Consistent with that agreement, on 30 December 2019 each of the six male accused travelled to the deceased’s unit (where Ms Kelly-Greenup was staying) in Mr Fernando’s white Holden Commodore and were present in the ground floor carpark area at the deceased’s home unit on 30 December 2019 when, at about 4pm, he was fatally assaulted;

   4. (4)

      Each of the accused Mr Fernando, Mr Beale, Mr McGrady, Mr Porter and Mr Weatherall physically participated in the assault on the deceased, while Mr Smith and Ms Kelly-Greenup were present and intentionally encouraging the others to assault the deceased;

   5. (5)

      In the course of that assault Mr Fernando, Mr Beale, Mr McGrady, Mr Porter or Mr Weatherall struck the deceased on the back of the head with a weapon with the intention of causing him really serious injury;

   6. (6)

      The strike on the back of the deceased’s head with a weapon caused his death; and

   7. (7)

      Each of the accused who were party to the agreement to assault the deceased foresaw the possibility that during the course of committing the assault, one of them (or more than one of them) might assault the deceased in such a manner (including with a weapon) as to cause him to suffer really serious injury cause and that that person would do so with the intention of inflicting harm of that kind.

2. [65]

   Accordingly, I direct myself that in order to return a verdict of guilty against any of the accused I will need to be satisfied, on the basis of evidence admissible against that accused, of the following:

   1. (1)

      That the accused whose guilt I am considering was party to an agreement to assault the deceased of the nature and scope contended for by the Crown;

   2. (2)

      That the accused whose guilt I am considering was present at the time the assault was committed because of that agreement and, in the case of Mr Fernando, Mr Beale, Mr McGrady, Mr Porter and Mr Weatherall they were physically participating in the assault, and in the case of Mr Smith and Ms Kelly-Greenup that they were present with the intention of assisting or encouraging the others to assault the deceased;

   3. (3)

      That the accused whose guilt I am considering foresaw the reasonable possibility that in the execution of the agreement that the deceased be assaulted, one or more than one of those who were party to that agreement might assault the deceased in such a manner as to cause him to suffer really serious injury and that person (or those people) would do so with the intention of inflicting harm of that kind; and

   4. (4)

      The deceased died as a result of that act.

3. [66]

   Counsel for each of the accused submitted (correctly) that as a matter of law the presence of their client generally at the place where the deceased was fatally assaulted, or in the immediate vicinity of that place (assuming the facts allowed for a factual finding advanced by the Crown that the deceased was assaulted at or proximate to the roller door to garage 5 in the ground level carpark area) was insufficient to expose any of them to liability for the deceased’s murder, even if the act causing death was committed in their presence.

4. [67]

   What defence counsel submitted (again correctly) was that the Crown was obliged to prove that their client was present in the carpark area because of the agreement their client had reached with one or more of the other accused (before arriving at the deceased’s home unit on 30 December 2019) that the deceased should be physically assaulted. In the case of Ms Kelly-Greenup, her counsel submitted (correctly) that the Crown was obliged to prove that she had reached an agreement with one, or more than one, of the six male accused before their arrival at the deceased’s home unit that he should be assaulted.

5. [68]

   It was further submitted by counsel for each of the accused (also correctly) that even were I satisfied of the existence of the joint criminal enterprise to assault the deceased at his home unit, and that their client was present in the ground floor garage at or about the time the deceased was fatally assaulted consistent with that agreement, that was insufficient to expose them to criminal liability for his murder. Counsel for each of the accused submitted that the Crown is also obliged to establish that the presence of their client at that time was accompanied by a state of mind, capable of being established by inference from the assembled facts, that before the assault on the deceased was launched, they each foresaw the possibility that one or more of those with whom they had agreed the deceased should be assaulted would, in the course of that assault, inflict grievous bodily harm on the deceased with the intention of inflicting harm of that kind, either by the use of a house brick which was seized from a pile of house bricks near the roller door to garage 5, or a weapon (or weapons) taken to the deceased’s unit in the white Holden Commodore in which they travelled together.

What the accused did not put in contest

1. [69]

   Save only for a limited submission advanced on behalf of Mr Beale that the evidence does not allow me to find that he was in the ground floor carpark area at the time of the fatal assault, it was not the subject of contest that the deceased was fatally assaulted in the ground floor garage area of his unit at or about 4pm on 30 December 2019.

2. [70]

   It was also, at least implicit, in the closing addresses of each of defence counsel that the evidence allowed me to find as a fact that the act causing death was committed by one of the six male accused and that person was armed with a weapon when the deceased’s head was struck with considerable force.

The significance of the tender of ERISPs of three of the seven accused

1. [71]

   Insofar as Mr Smith named Mr Fernando as the person who assaulted the deceased and with a piece of wood when he was interviewed by police in June 2020, and insofar as Mr McGrady referred to an unnamed assailant or assailants (also with a wooden weapon in the general shape of the table leg) in an interview he had with police also in June 2020, that evidence is not available to the Crown in proof of guilt of Mr Fernando (or any accused). It is only available as evidence against Mr McGrady and Mr Smith as participants in the ERISPs, and only then if I reject their respective (exculpatory) accounts as unworthy of acceptance.

2. [72]

   I also direct myself that were I to find the exculpatory accounts Mr McGrady and Mr Smith gave police when interviewed as unworthy of rational acceptance, that does not, without more, allow me to find that either of them was a participant in a joint criminal enterprise to assault the deceased, unless other evidence in the Crown case is capable of proving that fact beyond reasonable doubt. I direct myself that if I reject the accounts Mr McGrady and Mr Smith gave to police as incapable of raising a reasonable doubt about their guilt, I would simply disregard their accounts in my deliberation to verdict.

3. [73]

   Acknowledging that legal reality, counsel for each of Mr McGrady and Mr Smith relied upon their respective clients’ account to police in advancing the submission that, quite apart from their primary submission that I would not be satisfied of the existence of an agreement to assault the deceased in which their clients were participants – that is, I would be left in doubt as to the existence of an agreement of the nature and scope contended for by the Crown – I would, in addition, accept their account to police of what occurred in the ground level carpark area (namely, that they were each present when the assault occurred but that it broke our without forewarning and without their knowledge or consent when one (or more than one) of their co-accused launched an assault upon deceased with a weapon) as a reasonably possible explanation for the murder of the deceased consistent with their innocence, an account which the Crown is unable to exclude beyond reasonable doubt.

4. [74]

   I remind myself of a direction fundamental to the criminal trial process: It is for the Crown to persuade me that the combined weight of all of the facts and circumstances upon which it relies in proof of the guilt of Mr McGrady and Mr Smith negatives the hypothesis advanced on their behalf by their counsel, an account counsel submitted was given to police by each of Mr McGrady and Mr Smith in the exercise of their free will.

5. [75]

   That direction is an amplification of the fundamental proposition that if the evidence relied upon by the Crown in proof of guilt may give rise to another reasonable explanation for the facts said to be probative of guilt other than that the accused is guilty of the offence charged, the Crown must prove its case beyond reasonable doubt. Where the Crown case rests wholly on a body of circumstantial evidence, as it does in this trial, I direct myself that I cannot return a verdict of guilty against any of the accused unless the Crown has excluded all reasonable hypotheses consistent with the accused’s innocence beyond reasonable doubt. [14] I also direct myself that for a hypothesis consistent with innocence to be reasonably open, I must be satisfied that it rests upon something more than mere conjecture. [15] That said, and I direct myself accordingly, it is not incumbent on the accused to either establish that some inference other than guilt should be drawn from the evidence, or to prove that particular facts or circumstances tend to support such an inference. [16] In this trial, the fact that Mr McGrady and Mr Smith gave an account to police in their ERISPs which are broadly consistent with each other does not mean that either of them has assumed any burden of proving that their account is true.

6. [76]

   Additionally, as I noted earlier, although Mr Fernando, Mr Beale, Mr Porter and Mr Weatherall did not give an account to police, and did not give any evidence in the trial as to what occurred in the garage (as was their right and entitlement from which no adverse inference may be drawn), their counsel relied upon the general deficiency in the Crown’s circumstantial evidence case to prove to the requisite standard their complicity in the joint criminal enterprise of the scope and nature particularised by the Crown and a further deficiency in the evidence which the Crown relies upon to prove their liability for the deceased’s murder according to the principles of extended joint criminal enterprise.

7. [77]

   Insofar as the Crown case against Ms Kelly-Greenup is concerned, her counsel submitted that after directing myself in accordance with Edwards v the Queen, [17] the consciousness of guilt lies the Crown relies upon as part of its circumstantial evidence case against Ms Kelly-Greenup are not available to the Crown in proof of her guilt. Put simply, defence counsel submitted that even were I satisfied that Ms Kelly-Greenup told a number of deliberate and material lies to investigating police concerning her whereabouts and her movements on 30 December 2019 (a finding, it was conceded, that would be open to me to make having regard to the objective evidence of her movements that day via CCTV footage, taken together with the unchallenged evidence of Ms Sampson that they were together in the downstairs garage when Ms Sampson heard the deceased’s anguished screams), I would not draw the inference that they were lies told by her conscious that the truth would implicate her in a joint criminal enterprise of the nature and scope contended for by the Crown, or implicate her in the deceased’s murder according to the principles of an extended joint criminal enterprise.

8. [78]

   Defence counsel submitted I could not exclude the reasonable possibility that Ms Kelly-Greenup told a cascade of deliberate and material lies to police in her ERISP because she feared that telling the police that she was present in the garage when the deceased was assaulted would somehow implicate her in his murder in which she had in fact played no role.

Who was Vergel Velasquez as at 30 December 2019?

1. [79]

   Mr Velasquez was aged 42 years old at the time of his death. [18] The only evidence adduced at the trial about Mr Velasquez was adduced through a number of Crown witnesses who knew him either as a friend or as a neighbour of the unit block at Mia Mia Street, Girraween. There was no evidence he was in paid employment. There was no evidence as to his country of birth or nationality or whether he was an Australian national, an Australian citizen or a permanent resident.

2. [80]

   It would appear that although the deceased was the sole permanent occupier of the unit at Mia Mia Street, Girraween (either as a tenant or owner), friends or casual visitors would often stay overnight (sleeping on lounges or in the second bedroom) because they were drug affected or because their drug use in the deceased’s unit had extended overnight into the next day or subsequent days.

3. [81]

   There was evidence that for a period of around 8 weeks prior to 30 December 2019, Ms Kelly-Greenup was staying reasonably permanently in the second bedroom of the deceased’s unit. [19] Ms Kelly-Greenup’s account to police in her ERISP as to how she came to be living at the deceased’s unit and the evidence of Mr William Dennis, as the person who introduced her to the deceased, was broadly coincident.

4. [82]

   Mr Dennis was a close friend of the deceased. He gave evidence that he was friends with Mr Smith and knew that he lived with his partner (Ms Kelly-Greenup) in Railway Street, Granville. [20] Mr Dennis gave evidence that around October 2019, he received a call from his partner at the time who asked whether he could assist in finding accommodation for Ms Kelly-Greenup. [21] Mr Dennis said that he contacted the deceased and asked if he was willing to have Ms Kelly-Greenup stay with him. The deceased agreed. [22] Mr Dennis gave evidence that the following day, he drove Ms Kelly-Greenup to the deceased’s unit and introduced them. [23] He gave evidence that thereafter Ms Kelly-Greenup stayed at the deceased’s unit from time to time. [24]

5. [83]

   In Ms Kelly-Greenup’s ERISP, she told police that around October 2019, she met the deceased when he visited her residence in Guildford with her brother-in-law. [25] Ms Kelly-Greenup said that the deceased offered to continue visiting her but that she told him she would visit him instead. [26] She thereafter became the “mum of the house” and cooked, cleaned and laundered the clothes of the regular visitors to the deceased’s unit. [27] Ms Kelly-Greenup stayed in the second bedroom of the unit which was opposite the deceased’s bedroom. [28]

6. [84]

   The deceased’s unit comprised a loungeroom, two bedrooms and two balconies. [29] One of the balconies was connected to the deceased’s bedroom. It was identified during the trial as the “front balcony”. The driveway was visible from the front balcony. The second balcony was connected to the loungeroom. It faced the property next door.

7. [85]

   A floorplan of the deceased’s unit was tendered at trial and is produced below. [30]

8. [87]

   Mr Velasquez’s unit was on the first level of the residential unit block above what I have referred to as a ground level carpark. [31] The residential block was comprised of units on either side of a concrete driveway which extended from Mia Mia Street and through the ground level carpark (part of which comprised a number of secure garages).

9. [88]

   A single garage equipped with a roller door on the ground level was assigned to the deceased. It is the Crown case that the fatal assault occurred in the undercover garage area in front of the roller door to unit 5. There were additional car spaces in the area at the back of the carpark and the rear of which was a fence allowing access to Civic Park through a gate. The residential units were accessed through internal stairwells either on the left or right side of the ground level carpark accessed through the carpark. [32]

10. [89]

    A floorplan of the ground level carpark was tendered at trial and is produced below. [33]

11. [91]

    Ms Anniville Te-Ariki was a friend of the deceased. In the months before December 2019, Ms Te-Ariki visited the deceased at his unit multiple times each week. [34] She gave evidence that the deceased was someone she could confide in and that the unit was a place she could retreat to. [35] She said the deceased was the type of person to “accept anyone” and would allow them to treat his unit as their home. [36] Ms Te-Ariki gave evidence that there were often many people she didn’t know at the deceased’s unit. [37] She agreed that the unit was “like a party house” and that the deceased would often struggle to keep track of the people in his unit. [38]

12. [92]

    Mr Dennis gave evidence that he would regularly visit the deceased at his home unit and had done so over a number of years. [39] Mr Dennis described the deceased as a “good man” with a “good heart” who would frequently provide meals and temporary accommodation to people who needed it. [40] Mr Dennis also gave evidence that the deceased allowed people who could “pay board” to stay for longer periods, [41] and that the deceased also allowed people to store their belongings inside his unit and in the garage that was assigned to him. [42]

13. [93]

    Ms Sarah Kol was the deceased’s neighbour. She lived in the same unit block on Mia Mia Street, Girraween. She told police the deceased was always friendly with her and that she never had an issue with him. [43] Ms Kol would greet the deceased when she saw him in the stairwell and would occasionally give him left over food.

14. [94]

    Ms Eugenie Alam also lived in the same unit block on Mia Mia Street, Girraween. She gave evidence that the deceased was “very nice”. [44]

15. [95]

    There is unchallenged evidence in the Crown case that the deceased was a habitual user of ice and cannabis. It was common ground between the Crown and the accused that illicit drugs were available to visitors at the deceased’s unit, that is, that it was a place where it was well known that drugs would be delivered, supplied, shared, and consumed. Mr Dennis confirmed that the deceased supplied ice and cannabis to support his own drug habit. [45] He described the nature of the deceased’s drug supply as follows:

16. [96]

    Mr Dennis gave evidence that people would frequently visit the deceased’s unit to access, share or use “ice” and cannabis, [47] and that the drugs would sometimes be available upon arrival at the deceased’s unit and on other occasions visitors would have to pool their money to obtain drugs to share. [48] On those occasions, the deceased would collect the money and obtain the drugs which were then shared. Mr Dennis also gave evidence of other instances when the deceased would give drugs away for free to allow people to “smoke with him”. [49]

17. [97]

    Mr Dennis gave evidence that there were often people in the unit who were drug affected and that they would be awake all night. [50] In cross-examination, he agreed that the visitors to the deceased’s unit were what he described as a “pretty experienced drug crowd” [51] who would smoke or inject the ice, [52] and that “bongs” (of cannabis) would be in the lounge room for visitors to smoke and share. [53] Mr Dennis gave evidence that there were frequent disagreements between people visiting or staying in the unit, including issues over the ownership of property, [54] and that “things” would often “get out of hand”, inflamed by the use of drugs. [55] He described the deceased as a “welcoming person” and agreed that certain people would take advantage of him through drugs at his premises. [56]

18. [98]

    In the weeks leading up to 30 December 2019, Mr Dennis was at the deceased’s unit a couple of days each week and observed “people coming and going”. [57] He gave evidence that together with Mr Daniel, they helped the deceased decide who was permitted to enter the unit in an attempt to exercise some control over who was present. [58]

19. [99]

    Ms Kol told police that the deceased would have “friends and different people constantly coming and going from his unit block”. [59] Ms Suzanne Danford was an associate of the deceased. Her statement was tendered by consent. She told police that every time she visited the deceased’s unit, there would be “different people hanging out”. [60] Ms Sita Ghazanfar was also an associate of the deceased. Her statement was also tendered. She told police that in the months leading up to the deceased’s death, he had “several different people coming in and out of his unit a lot”. [61]

20. [100]

    Ms Alam gave evidence that there were (sounds of) “arguing all the time” from the deceased’s unit and that her son had occasionally called the police. [62]

21. [101]

    Mr Justin Cesarin was a close friend of the deceased and in a personal relationship with the deceased’s sister. [63] Mr Cesarin gave evidence that both he and the deceased had issues with their drug addiction and would often discuss their personal struggles. [64] Mr Cesarin agreed that they were part of a “drug milieu” and that the people in that group would all use drugs at the deceased’s unit. [65]

22. [102]

    Mr Barnes lived on the second floor of the unit block on Mia Mia Street. He gave evidence that he would often visit the deceased’s unit to smoke cannabis. [66] He agreed that the deceased’s unit was a “drug users’ unit” and that there were numerous people who would visit simply to obtain and use drugs. [67]

23. [103]

    Mr Matthew Newton was a friend of the deceased and a regular visitor to the unit. He gave evidence that they had been friends for a couple of years and that he would see the deceased at the Pendle Hill shops from time to time. [68] He gave evidence that in the weeks leading up to 30 December 2019, he used ice in the deceased’s unit when he had the time. [69]

24. [104]

    Ms Theresa Joukhador was an associate of the deceased and the partner of Mr Daniel. She gave evidence that in December 2019, she witnessed people smoking “ice” and “bongs” in the deceased’s loungeroom. [70] Mr Patrick Daniel was a friend of the deceased and Ms Joukhador’s partner. He gave evidence that there was “always someone screaming and shouting” and “people coming and going” from the deceased’s unit. [71]

25. [105]

    Ms Patchouli Plasto was an associate of the deceased. She gave evidence that she knew a lot of people went to the deceased’s unit to smoke ice but that there were “a lot of houses like that”. [72]

Mr Daniel’s assault of the deceased on 29 December 2019

1. [106]

   Mr Cesarin gave evidence that at around 11:30pm on 29 December 2019, he attended the deceased’s unit with Mr Daniel at Mr Daniel’s insistence as Mr Daniel was furious with the deceased as Mr Daniel’s bag had been taken from the deceased’s garage. [73] The evidence establishes that the missing bag contained a quantity of MDMA. [74]

2. [107]

   Mr Cesarin gave evidence that when they entered the unit, the deceased was laying on his bed (in his bedroom) listening to music. [75] Mr Cesarin gave evidence that Mr Daniel said to the deceased, “I’m going to fucking smash you and there’s no cunt going to stop me”. [76]

3. [108]

   He said that Mr Daniel jumped onto the bed and struck the deceased’s left cheek area with a closed fist. [77] Mr Cesarin gave evidence that Mr Daniel’s second punch landed in the deceased’s ribs. [78] Mr Cesarin described two punches being delivered and that Mr Daniel had a “metal shank” in one of his hands when the punch was delivered. [79] Mr Cesarin said he was afraid to intervene as he would have “been bashed [himself]”. [80]

4. [109]

   In cross-examination by Mr Smith, Mr Cesarin accepted that he was truthful when he told the police on 1 January 2020 that he also saw Mr Daniel kick the deceased. [81]

5. [110]

   Mr Cesarin gave evidence that he applied a pack of frozen vegetables to the deceased’s face to stop any swelling. [82] He noticed blood on the right side of the deceased’s mouth.

Evidence in the trial of the drug use by one or more of the accused as at 30 December 2019

1. [111]

   Mr Dennis gave evidence that he had used drugs with Mr Smith on multiple occasions. [83] Ms Joukhador gave evidence that on 30 December 2019, Mr Smith was smoking an ice pipe when he was in the deceased’s unit. [84] Mr Smith told police in his ERISP that he was smoking an ice pipe in the downstairs carpark area with Ms Kelly-Greenup.

2. [112]

   Mr Newton gave evidence that he saw Ms Kelly-Greenup “smoking a pipe” in the deceased’s unit in the weeks leading up to 30 December 2019. [85]

3. [113]

   Mr McGrady told police in his ERISP that he was a user of ice (and was “flying high on ice” at Mr Smith’s place) and that he travelled to the deceased’s unit (with the others) to “score”. He said he asked “a lad” for a cone.

4. [114]

   Mr Olla gave evidence that on 30 December 2019 he offered the visitors to the deceased’s unit a “couple of cones” and “one or two” of them smoked “a cone”. [86] Mr Fernando and Ms Kelly-Greenup’s DNA was recovered from a “bong” seized by crime scene officers.

5. [115]

   Ms Marlene Wood’s evidence on the voir dire was tendered in Mr Weatherall’s case. She described her son as a habitual user of “ice” over many years.

Evidence in the trial as to drug use in the deceased’s unit on 30 December 2019

1. [116]

   Mr Cesarin gave evidence that in the early morning of 30 December 2019, everyone who was in the unit smoked some ice, including the deceased. [87] He identified the people in the unit at that time as himself, Mr Daniel, Ms Joukhador, Ms Sampson, Ms Kelly-Greenup and the deceased. [88]

2. [117]

   On the morning of 30 December 2019, Mr Newton was with the deceased and Ms Plasto at Pendle Hill station when Ms Plasto said she wanted to “grab some drugs” and “get on”. [89] Ms Plasto gave evidence that after they spoke on the platform, she decided to go with the deceased to his unit. [90] Ms Plasto gave evidence that after they arrived she felt that she “shouldn’t have come [here]” and that it “seemed like [the deceased] had a lot going on at the time”. [91] Ms Plasto gave evidence that she had only been to the deceased’s unit on one prior occasion and that it was “not exactly the kind of environment where you could have a conversation with somebody”. [92]

3. [118]

   Ms Plasto gave evidence that she witnessed (what the evidence revealed to be) Mr Olla arriving at the deceased’s unit to purchase some cannabis. [93] She gave evidence that they had a conversation about the drug and that the deceased left the unit for five minutes before returning with a “stick about $20 worth”. [94] Ms Plasto gave evidence that she helped Mr Olla chop the cannabis. [95] Mr Olla then offered Ms Plasto some of the cannabis, which she accepted. [96] Ms Plasto gave evidence that she had one cone of marijuana in the deceased’s unit that day. [97]

4. [119]

   Ms Plasto gave evidence that before the accused arrived in the deceased’s unit, there were a large number of people in the unit that appeared to be “just hanging around” and she “got the gist” that the deceased was expecting a large quantity of drugs to be dropped off that day. [98] Ms Plasto gave evidence that the deceased told her he was “waiting for something to be delivered”, which she assumed to be “ice”. [99]

The sexual assault allegation

1. [120]

   As noted earlier, it is the Crown case that the agreement to assault the deceased (an agreement to which each of the accused were parties and in which they each participated on 30 December 2019) was an agreement formed no later than the arrival of the six male accused at the deceased’s unit around 3:30pm that day and sometime after 27 December 2019 when Mr Fernando, Mr Porter and Mr Weatherall left Moree to travel to Sydney.

2. [121]

   It is also the Crown case that the joint criminal enterprise to assault the deceased was founded upon a belief, held by each of the six male accused, that Ms Kelly-Greenup had been sexually assaulted by the deceased and that Ms Kelly-Greenup was a party to the joint criminal enterprise to assault the deceased because she had been assaulted by him and that she knew or anticipated the arrival of the co-accused at the deceased’s home unit on 30 December 2019 to carry out that assault on her behalf and in her presence.

3. [122]

   Even when the Crown closed its case, it was unclear whether the Crown sought to prove the existence of the joint criminal enterprise to assault the deceased on the basis that Ms Kelly-Greenup was the person who complained of being sexually assaulted directly to each of the accused or that she complained to one (or more) of them who published the complaint to the others or that one or more of them heard of it through or via some third party or as a rumour.

4. [123]

   In either event, there was no direct or objective evidence in the Crown case that Ms Kelly-Greenup published her complaint to any of the accused and no evidence admissible against each of the accused that they were aware of the complaint and joined together on 30 December 2019 to assault the deceased in retaliation or in retribution for the deceased’s mistreatment of Ms Kelly-Greenup.

5. [124]

   In contrast, there was an abundance of evidence in the trial that Ms Kelly-Greenup had complained to visitors attending the deceased’s unit in the weeks before 30 December 2019 that the deceased had assaulted her, although as the evidence I will review presently will make clear, no one took her complaint seriously, in large part because her complaint was co-incident with her needing drugs to satisfy her addiction. It would also appear the deceased, who for reasons that remain opaque, continued to allow Ms Kelly-Greenup to reside at his unit even after she had accused him of sexually assaulting her.

6. [125]

   There was no evidence that any of those witnesses told the accused of Ms Kelly-Greenup’s allegations. Mr Dennis, who knew Ms Sampson, was not asked by the Crown whether he had told Mr Smith of the allegation.

7. [126]

   Mr Dennis gave evidence that around two weeks after Ms Kelly-Greenup moved into the deceased’s unit in October 2019, she said the deceased “fucking raped [her]”. [100] The deceased was present at the time, and he denied the allegation. [101] Mr Dennis could not recall if there were other people present. [102] Mr Dennis asked Ms Kelly-Greenup to leave the deceased’s unit and she did. [103]

8. [127]

   Approximately two weeks later when Mr Dennis again visited the deceased at his unit, he found the deceased sitting on the couch in the lounge room and that Ms Kelly-Greenup was also in the unit along with some other men Mr Dennis did not know. [104] Mr Dennis gave evidence that Ms Kelly-Greenup in effect repeated the rape allegation. In cross-examination by Mr Watson, Mr Dennis agreed that he told Ms Kelly-Greenup “Not this fucking bullshit again. You raped yourself”. [105]

9. [128]

   Around late November/early December 2019, Mr Dennis gave evidence that Ms Kelly-Greenup repeated her sexual assault allegation a third time. [106] Mr Dennis gave evidence that the deceased was again present and was visibly upset and in tears. [107] The deceased again denied the allegation and Mr Dennis asked Ms Kelly-Greenup to leave the unit. [108] Mr Dennis gave evidence that after this occasion, he continued to see Ms Kelly-Greenup at the deceased’s unit from time to time. [109]

10. [129]

    In cross-examination, Mr Dennis agreed that he initially told police Ms Kelly-Greenup told him that the deceased had “jumped on her legs in her sleep and was feeling her up” but that the allegation eventually escalated to “rape”. [110]

11. [130]

    Mr Dennis gave evidence that he knew (or believed) the allegations were false because he had heard Ms Kelly-Greenup make similar allegations against Mr Smith in the past. [111] Mr Dennis gave evidence that Ms Kelly-Greenup was “strung out” when she alleged the deceased had raped her. [112] He agreed in cross-examination that he told the police the following:

12. [131]

    Mr Dennis treated Ms Kelly-Greenup’s repeated sexual assault allegations as “definitely bullshit” [114] and agreed in cross-examination that everyone knew the allegations were “just bullshit”. [115] He said:

13. [132]

    Mr Newton gave evidence that in the weeks leading up to 30 December 2019, he was in the loungeroom of the deceased’s unit when Ms Kelly-Greenup said “something about her being mauled up”. [117] He confirmed that Ms Kelly-Greenup said it was the deceased “who did it”. [118] In cross-examination by Mr Coady, Mr Newton confirmed that he was using drugs when he witnessed the conversation. [119] He confirmed that Ms Kelly-Greenup was probably using drugs at the time. [120] Mr Newton was then taken to his police statement, and he agreed that he told police that the next time he saw Ms Kelly-Greenup, she was sitting on the lounge in the deceased’s unit smoking a pipe. [121] In cross-examination by Mr Watson, Mr Newton agreed that he had a conversation with the deceased afterwards. [122] He confirmed that they went for a walk and when he asked the deceased what had occurred, the deceased replied “I don’t know.” [123]

14. [133]

    Ms Joukhador gave evidence that she first met Ms Kelly-Greenup in the deceased’s unit in December 2019. [124] She said there was an occasion when they were in the lounge room and Ms Kelly-Greenup asked her words to the effect “If you were raped, would you know?” [125] Ms Joukhador said that she told Ms Kelly-Greenup that if she had been raped she would have known. [126]

15. [134]

    In cross-examination by Mr Watson, Ms Joukhador was taken to her police statement. Ms Joukhador agreed that she told police that Ms Kelly-Greenup said, the following:

16. [135]

    Ms Joukhador agreed that Ms Kelly-Greenup made no specific mention of the word “rape” or the deceased being the perpetrator. [128]

17. [136]

    Ms Te-Ariki gave evidence that in the two weeks leading up to 30 December 2019, the deceased told her he had been accused of rape and that there was “drama”. [129] Ms Te-Ariki gave evidence that the deceased said “everybody” was accusing him but that the allegations were rumours or gossip. [130] She was not invited by the Crown to clarify whether the deceased identified the people who were accusing him of rape. She said the deceased swore it not to be true. [131] In cross-examination by Mr Watson, Ms Te-Ariki was taken to her police statement dated 12 February 2020. [132] She agreed that she told police about a conversation she had with the deceased where he gave her a demonstration to explain the false allegation: [133]

18. [137]

    Mr Barnes gave evidence that a couple of days before 30 December 2019, he was in the deceased’s unit when he saw the deceased crying with a black eye. [135] Mr Dennis was present at the time and told the deceased to tell Mr Barnes what happened. [136] Mr Barnes gave evidence that there was a girl present and a mention of rape. [137] Mr Barnes gave the following evidence:

19. [138]

    Mr Barnes did not give further evidence about the allegations or learning who had hit the deceased. Mr Dennis did not give any evidence of this incident.

20. [139]

    Ms Sampson gave evidence that in the weeks leading up to 30 December 2019, Ms Kelly-Greenup told her the deceased had raped her. [139] Ms Sampson said Ms Kelly-Greenup told her it occurred at the deceased’s house “or somewhere” but did not provide any further details. [140]

21. [140]

    Mr Cesarin confirmed that he told police that “at no point whilst at [the deceased’s] unit did [he] hear [Ms Kelly-Greenup] accuse [the deceased] of rape or any kind of assault”. [141] He agreed that if the deceased had mentioned an allegation of that kind, he would have a recollection of it. [142]

22. [141]

    In Ms Kelly-Greenup’s ERISP, she described the deceased as her best friend and someone she would do “everything” with. [143] She told police that they emotionally supported each other as they were both going through “a lot of heartache and heartbreak”. [144] Ms Kelly-Greenup denied any sexual or romantic relationship with the deceased and described their relationship as “just platonic”. [145] She told police that they would “cuddle each other at night” but that they would not “do anything”. [146] Ms Kelly-Greenup confirmed that the deceased had the same understanding of their relationship. [147]

23. [142]

    When Detective Neil put the allegations of sexual assault to Ms Kelly-Greenup, she denied it and said that another woman, “Emma”, had made the allegations against the deceased. [148] Ms Kelly-Greenup said that Emma told her about an incident when she woke up in the back of a vehicle with her head in the deceased’s lap. [149] Ms Kelly-Greenup told police that she said to Emma “Are you sure mate…That’s not something that [the deceased] would do that I know of”. [150] Ms Kelly-Greenup said that that was the extent of her knowledge about any allegations of sexual impropriety concerning the deceased. [151]

24. [143]

    Detective Neil then invited Ms Kelly-Greenup to provide an explanation as to why multiple people told the police about her sexual assault allegations against the deceased, to which Ms Kelly-Greenup responded with the following:

25. [144]

    Ms Kelly-Greenup denied telling Mr Smith or any of his associates that she had been sexually assaulted by the deceased. [153]

26. [145]

    Ms Kelly-Greenup also told police that she had not spoken to Mr Smith in the two weeks leading up to 30 December 2019. [154] Although this was squarely contradicted by the objective evidence in the trial, including in the schedule of text messages, [155] there is nothing in the content of the messages that is relied upon by the Crown as direct evidence of the currency of any allegation of sexual assault prior to 30 December 2019 or of an allegation of that kind being the context in which Mr Smith came to the deceased’s unit that day or the context for anything that occurred at the deceased’s unit that day, including the circumstances in which the deceased was fatally assaulted.

27. [146]

    Mr Smith told police in his ERISP of hearing about an allegation of sexual assault but he denied that it motivated him to arrange for the deceased to be assaulted. He gave the following account to police:

28. [147]

    Later in the interview, when he attributed the assault on the deceased to Mr Fernando, Mr Smith said Mr Fernando was asking Ms Kelly-Greenup and Ms Sampson whether the deceased had assaulted them.

Relationships between the accused and what that evidence reveals, or is capable of revealing about the existence of the joint criminal enterprise contended for by the Crown, including any evidence capable of supporting the Crown case that Ms Kelly-Greenup’s allegation of sexual assault was what motivated the accused to join in a joint criminal enterprise to assault the deceased

1. [148]

   With the exception of Mr Beale (about whom there is little evidence of any pre-existing relationship with the other six accused aside from Mr Fernando and only then for a period of days), the existence of relationships between some or all of the remaining six accused was not in issue at the trial. That said, the nature and extent of those relationships as at 30 December 2019, or the duration or strength of any relationships that predated 30 December 2019 was not the subject of any focused final submission by the Crown beyond what the Crown submitted I would infer about the closeness of the relationship between at least Mr Smith and Mr Fernando, Mr Porter and Mr Weatherall, given the evidence that they were staying at Mr Smith’s home in Granville, after having travelled together form Moree on 27 December 2019, and that they generally remained in one another’s company over the succeeding days before Mr Fernando, Mr Porter and Mr Weatherall left Sydney together on 31 December 2019, by this time with Mr McGrady and Mr Beale.

2. [149]

   I will refer presently to my own summary of the compendium of statements (tendered by the Crown by consent) prepared by Senior Constable Melanie Brown, and her interrogation of the phone records of each of the accused, in order that I might make a reasoned assessment of whether that evidence adds to, detracts from or is simply not probative in any practical sense of the association between the accused prior to and on 30 December 2019 and the days that followed, or the nature, extent and currency of relationships between the accused at the time of the deceased’s murder. [156]

3. [150]

   What follows is what I have been able to discern from the other evidence in the trial.

4. [151]

   Ms Greenup was the former de facto partner of Mr Smith. They had three children together. [157]

5. [152]

   On 30 December 2019, Ms Swan was introduced by Mr Smith to three men at his home who he referred to as “uncle”. I am satisfied from all the evidence that she was introduced to Mr Porter, Mr Fernando, and Mr Weatherall.

6. [153]

   Unlike Mr Porter, Mr Fernando, Mr Weatherall and Mr McGrady, each of whom lived in Moree, Mr Beale was from Inverell. He was first seen in the company of the accused Mr Porter and Mr Smith at a shop near Mr Smith’s home on the afternoon of 30 December 2019. [158]

7. [154]

   Ms Karen Blair was the mother of Mr Beale’s partner at the time. [159] Ms Blair gave evidence that Mr Beale had been living at her premises in Inverell in the weeks leading up to December 2019. [160] Ms Blair was also in a romantic relationship with Mr Dean Beale. [161] There was no evidence as to the relationship between Mr Beale and Mr Dean Beale.

8. [155]

   Ms Blair gave evidence that Mr Fernando arrived at her premises in Inverell on 24 December 2019. [162] She could not recall if Mr Beale was present when he arrived. [163] She agreed that there was nothing to indicate that Mr Beale and Mr Fernando knew each other prior to them both being at her home at Christmas 2019. [164]

9. [156]

   Ms Blair gave evidence that after Christmas 2019, Mr Fernando and Mr Dean Beale (her partner) left together in a white station wagon to travel to Moree. [165] Mr Beale and his partner left together shortly after. [166] There was no evidence as to Mr Beale’s movements between 27 and 29 December 2019. That is, there was no evidence as to what Mr Beale did after leaving Ms Blair’s property in Inverell with his partner and being seen on the CCTV footage at D&J Mixed Business on 30 December 2019.

10. [157]

    Ms Nola Weatherall is Mr Weatherall’s “aunty”. She gave evidence that Mr Beale was a cousin on her mother’s side. [167]

11. [158]

    Ms Marlene Wood is Mr Weatherall’s mother. [168] Ms Wood gave evidence that Mr Weatherall’s partner was Ms Leah Stoddart and that they had at least 9 children together. [169] She gave evidence that Mr Weatherall had a significant drug problem. [170] She gave evidence that the addiction began in 2011. [171]

12. [159]

    During the course of the police investigation, the Facebook accounts of Mr Fernando, Ms Greenup, Mr McGrady, Mr Porter and Mr Smith were accessed. Each Facebook account had an image of the accused as the profile picture. Access to the Facebook account of those accused revealed the following:

    1. (1)

       Mr Smith’s Facebook account identified that he was from Moree. His “Facebook friends” included Mr Fernando, Ms Greenup, Mr McGrady and Mr Porter.

    2. (2)

       Mr Fernando’s Facebook account identified that he was from Moree. His “Facebook friends” included Mr McGrady, Mr Porter and Mr Smith.

    3. (3)

       Ms Greenup’s Facebook account identified that she was from Kempsey. Her “Facebook friends” included Mr Porter and Mr Smith.

    4. (4)

       Mr Porter’s Facebook account identified that he was from Tamworth but living in Moree. His account was not public and his “Facebook friends” are unknown.

    5. (5)

       Mr McGrady’s had two Facebook accounts. They revealed that he was from Moree and that his “Facebook friends” included Mr Fernando, Mr Porter and Mr Smith.

13. [160]

    There was no Facebook account associated with Mr Weatherall or Mr Beale.

14. [161]

    Notably there was no evidence of any “posts” on the Facebook accounts of any of the five accused whose accounts were accessed or when their accounts were opened. In those circumstances, the nomination by Mr Fernando, Mr McGrady, Mr Smith and Ms Kelly-Greenup of other accused as “friends” adds little to the fact that they are known to each other and that Mr Fernando, Mr McGrady, Mr Porter and Mr Smith were together from time to time in the days prior to 30 December 2019 a fact not in contest.

Schedule (Senior Constable Brown)

1. [162]

   Senior Constable Melanie Brown is an intelligence analyst who worked with the Strike Force designated to investigate the deceased’s murder. She was assigned to that role on 20 January 2020.

2. [163]

   Six of her statements were tendered by consent in the trial as part of the police tender bundle, [172] in which she detailed a series of investigations undertaken by her of the movements of the accused referable to their mobile handsets, including their telephone and Facebook contact with each other between 28 and 31 December 2019.

3. [164]

   The tendered statements were dense in detail and extended over many pages. Neither the Crown nor the accused advanced any submissions at all as to how I should interpret her findings relative to proof of the facts in issue or the resolution of any disputed facts.

4. [165]

   The only reference the Crown made to this body of evidence was in the Crown’s written submissions tendered in response to the applications for directed verdicts by each of the accused where reference was made to a discrete number of entries from Senior Constable Brown’s analysis relating to the telephone subscribed to Mr Fernando concerning his travel to and from Moree between 27 and 31 December 2019. They are as follows:

5. [166]

   Although the parties undertook no meaningful analysis of Senior Constable Brown’s evidence in their closing submissions, as the tribunal of fact, I do not consider that it is open to me to ignore it altogether. What follows is a summary of what I have discerned from that material to the extent that it might bear relevantly on the facts in issue, including, most significantly, the extent of contact between the accused before 30 December 2019 as evidence of their preconcert.

6. [167]

   During the course of police investigation, the mobile services of the following users were identified as “mobile services of interest”:

   1. (1)

      Mr Fernando

   2. (2)

      Mr Beale

   3. (3)

      Ms Kelly-Greenup

   4. (4)

      Mr McGrady

   5. (5)

      Mr Porter

   6. (6)

      Mr Smith

   7. (7)

      Mr Weatherall.

7. [168]

   On 9 April 2020, Senior Constable Brown requested the CCR/RCCR and incoming and outgoing SMS records of Mr Beale’s phone service for the period 29 December 2019 and 25 January 2020. The results showed minimal usage of the phone service.

8. [169]

   On 11 April 2020, Senior Constable Brown requested the mobile internet records (MIR) of Mr Beale’s phone service for the period 29 December 2019 and 4 January 2020. The results indicated that mobile internet data was not activated on the service.

9. [170]

   Senior Constable Brown analysed the call charge records/reverse call charge records (CCR/RCCR) and mobile internet records (MIR) of the other mobile services of interest for the period between 27 December 2019 and 1 January 2019. The purpose of that investigation was to identify, if possible, the movement of the remaining mobile handsets of interest relative to cell tower data. Senior Constable Brown produced 12 maps to illustrate her findings. [173]

10. [171]

    My attempts to analyse the data in the Crown case was compromised by the absence of any evidence as to the operation of the cell towers or the data generated from them. Neither was there evidence as to the circumstances in which multiple cell towers in an area might receive signals from the same phone handset and, if so, whether that indicated the mobile handset was physically moving within the area where the cell towers were positioned and operational or stationary but receiving signals from multiple towers.

11. [172]

    Just after 3pm, the mobile handsets of Mr Fernando, Mr Weatherall and Mr Porter were recorded leaving Moree, moving thereafter through the township of Narrabri, Gunnedah, Muswellbrook, Cessnock, and Carlingford (generally travelling towards Sydney). There was no issue in the trial that Mr Fernando, Mr Porter and Mr Weatherall travelled to Sydney that day and arrived the following morning.

12. [173]

    At around 12:50am, the handsets of Mr Fernando and Mr Weatherall were recorded at Parramatta; at 1:45am, the handset of Mr Porter indicated he was in the same location (at Parramatta).

13. [174]

    At 7:38am, the handsets of Mr Smith, Mr Fernando, Mr Weatherall and Mr Porter indicated they were in Parramatta. The handset of Ms Greenup was in the Pendle Hill area and the handset of Mr McGrady in the Campbelltown area. As noted earlier, there is no data from Mr Beale’s phone which might assist in locating him in Sydney at this time. He is first noted in the company of Mr Porter and Mr Smith in the afternoon of 30 December 2019 before being seen again in the company of the remaining three male accused at the Enhance service station.

14. [175]

    The phone services of Mr Fernando, Mr Weatherall and Mr Smith remained in the Parramatta area.

15. [176]

    At 1:30am, the phone services of Mr Fernando and Mr Weatherall moved from the Parramatta area to the Campbelltown area. At this time, the phone service of Mr McGrady was in the Campbelltown area while the phone service of Mr Smith remained in Parramatta.

16. [177]

    At around 3am, the phone services of Mr Fernando, Mr Weatherall and Mr McGrady remained in the Campbelltown area.

17. [178]

    At 4:24am, the phone services of Mr Fernando, Mr Weatherall and Mr McGrady were in the Parramatta area. The service of Mr Smith was also in the Parramatta area at this time.

18. [179]

    At 2:50pm, the phone services of Mr Fernando, Mr McGrady and Mr Smith were at the Parramatta area.

19. [180]

    At 3:05pm, the phone service of Mr Weatherall was in the Parramatta area.

20. [181]

    At 3:11pm, the phone service of Ms Kelly-Greenup was at Pendle Hill.

21. [182]

    At 3:34pm, the phone service of Mr Weatherall was in the Pendle Hill area; at 3:45pm, the phone services of Mr Fernando, Mr McGrady and Mr Smith were also in Pendle Hill.

22. [183]

    At 5pm, the phone services of Mr Weatherall, Mr McGrady and Mr Smith were in the Parramatta area.

23. [184]

    At around 6pm, the phone service of Mr Fernando and Mr Smith moved to North Parramatta (Ms E Smith resided at Collett Parade in North Parramatta).

24. [185]

    At 6:45pm, the phone service of Mr Fernando returned to the Parramatta area and the phone service of Mr Smith remained in North Parramatta.

25. [186]

    At 7:05pm, the phone service of Mr Fernando and Mr McGrady moved from the Parramatta area.

26. [187]

    At 8:50pm, the phone services of Mr Fernando, Mr McGrady and Mr Weatherall were at Campbelltown.

27. [188]

    At 10:30pm, the phone services of Mr Fernando and Mr McGrady moved from Campbelltown and travelled towards the direction of Maitland in Mr Fernando’s white Holden Commodore. It is not in issue that Mr Beale, Mr Porter and Mr Weatherall were also in the car.

28. [189]

    At 1:30am, the phone services of Mr Fernando and Mr McGrady arrived at Maitland.

29. [190]

    At 3:30am, the phone service of Mr Porter was at Maitland.

30. [191]

    At 6:30am, the phone service of Mr Fernando moved from Maitland.

31. [192]

    Around 10am, the phone services of Mr Fernando, Mr Weatherall and Mr McGrady were in Tamworth.

32. [193]

    At around 1pm, the phone services of Mr Fernando and Mr Beale were in South Tamworth.

33. [194]

    Just after 4pm, the phone service of Mr Weatherall and Mr McGrady moved from Tamworth.

34. [195]

    At 7:30pm, the phone service of Mr Weatherall and Mr McGrady were in Moree. The phone service of Mr Fernando remained in Tamworth.

35. [196]

    At 2:30pm, the phone service of Mr Fernando moved from Tamworth.

36. [197]

    At 6:30pm, the phone service of Mr Fernando arrived in Moree.

37. [198]

    This statement detailed Senior Constable Brown’s involvement as the exhibit officer in the execution of a search warrant at Barwon Avenue, Moree (the premises of Mr Fernando) on 14 May 2020.

38. [199]

    A miscellaneous number of items were seized from the premises:

    1. (1)

       HTC Mobile phone with cracked screen

    2. (2)

       Samsung tablet

    3. (3)

       Silver coloured beaded necklace

    4. (4)

       Black, silver and gold coloured chain

    5. (5)

       Blue and pink coloured boardshorts

    6. (6)

       Blue T-shirt

    7. (7)

       Remnants of ZTE mobile phone

    8. (8)

       Unknown brand blue mobile phone with smashed screen

    9. (9)

       Black T-Shirt with motif “Gage Roads Brewing Co”

39. [200]

    The relevance of these items was not the subject of any elaboration in the trial.

40. [201]

    On 31 December 2019, the NSWPF requested a Subscriber check for the deceased’s phone service. The results confirmed that the service was connected on 13 December 2018.

41. [202]

    A further request was submitted for the call charge records (CCR) and reverse call charge records (RCCR) for the deceased’s phone service between 11 December 2019 and 31 December 2019. The results indicated that there was no active service during those dates. Senior Constable Brown confirmed that any incoming calls which appeared on the records were forwarded to message bank and that SMS messages did not appear to have been delivered. Senior Constable Brown further confirmed that any incoming calls were identified to be “associates” of the deceased, however, she did not name them and they are not otherwise identified.

42. [203]

    On 14 January 2020, police requested a Subscriber check and confirmed that the service was subscribed to Mr Fernando’s name with an address on Dover Street, Moree. The service was activated on 27 November 2019.

43. [204]

    On 14 January 2020, police requested the call charge records and reverse call charge records (CCR/RCCR) of Mr Fernando’s phone service between the period of 25 November 2019 and 13 January 2020. The results indicated that there was regular contact or attempted contact between Mr Fernando’s phone service and the phone services of the following people over that time interval:

    1. (1)

       Ms Jessica Dunn (Mr Fernando’s partner)

    2. (2)

       Mr Weatherall

    3. (3)

       Mr Porter

    4. (4)

       Mr Smith

    5. (5)

       Ms Kelly-Greenup

    6. (6)

       Mr McGrady

    7. (7)

       Ms Christeena Carr (Mr McGrady’s partner).

44. [205]

    On 14 January 2020, police requested the incoming and outgoing SMS records of Mr Fernando’s phone service for the period between 25 November 2019 and 13 January 2020. On 17 February 2020, Senior Constable Brown requested the Mobile Internet Records (MIR) of Mr Fernando’s phone service for the period between 26 December 2019 and 6 January 2020. Some of the results will be reproduced later in the timeline of relevant events. The other results identified by the police investigation indicate the following contact by Mr Fernando with other accused, or attempted contact with them, and his movements more generally as follows:

    1. (1)

       At 10:54pm, Mr Fernando’s phone service, connected with the Parramatta cell tower, attempted to contact Mr Smith’s phone service. During that day and the previous day Mr Fernando’s handset was located in and around Parramatta.

    2. (1)

       At 1:32am, Mr McGrady’s phone service attempted to contact Mr Fernando’s phone service.

    3. (2)

       At 2:42am, the phone service connected to the Campbelltown cell tower.

    4. (3)

       At 3:42am, the phone service connected to the Granville West cell tower before returning to the Parramatta area.

    5. (4)

       At 12:06pm, Mr Fernando’s phone service attempted to contact Mr Porter’s phone service. That call was forwarded to voicemail.

    6. (5)

       At 12:18pm, Mr Fernando’s phone service connected with Mr Smith’s phone service. A call of 1 minute and 15 seconds was registered.

    7. (6)

       At 3:42pm, Mr Fernando’s phone service connected to the Pendle Hill cell tower where it remained until 3:52pm.

    8. (7)

       Between 3:55pm and 4:01pm (when the evidence places Mr Fernando at the deceased’s unit), Mr Fernando’s phone service registered on four different cell towers, all of which were in the Pendle Hill area.

    9. (8)

       At 4:11pm, Mr Fernando’s phone service connected to the Westmead cell tower.

    10. (9)

        Between 4:11pm and 5:30pm, Mr Fernando’s phone service was not active on any cell towers.

    11. (10)

        At 5:30pm, Mr Fernando’s phone service connected with the Marsden Street Bridge cell tower in the Parramatta area.

    12. (11)

        At 6:02pm, Mr Fernando’s phone service connected with the Rydalmere cell tower (east from Parramatta) where it remained for approximately 45 minutes.

    13. (12)

        At 6:43pm and 6:44pm, Mr Weatherall’s phone service attempted to call Mr Fernando’s phone service. The calls were not answered.

    14. (13)

        At 6:57pm, Mr Fernando’s phone service connected with the Parramatta cell tower where it remained until 7pm.

    15. (14)

        Between 7pm and 7:52pm, Mr Fernando’s phone service connected with several cell towers in the areas of Granville, Liverpool, Moorebank, Casula, and Campbelltown.

    16. (15)

        Between 7:52pm and 8:33pm, Mr Fernando’s phone service connected with the cell towers in the areas of Bradbury, Ambarvale, and Rosemeadow.

    17. (16)

        At 10:35pm, Mr Fernando’s phone service connected with the Casula Showtime cell tower.

    18. (17)

        At 11:41pm, Mr Fernando’s phone service connected with the Somersby cell tower.

    19. (1)

        Mr Fernando’s phone service attempted to make several phone calls to the phone service of Mr Porter, Mr Weatherall and Mr Smith. All calls appeared to have either been unanswered or forwarded to voicemail.

    20. (2)

        Between 28 December 2019 and 29 December 2019, Mr Fernando’s handset remained primarily in and around the Parramatta area.

45. [206]

    On 13 January 2020, the CCR/RCCR of the phone service was requested for the period between 26 December 2019 and 8 January 2020. The results indicated that the most frequent contact was to a phone service registered to Ms Lee Stothard (Mr Weatherall’s de facto partner and father to his children). Other regular services which appeared on the CCR/RCCR were subscribed to the following people:

    1. (1)

       Mr Fernando

    2. (2)

       Mr Smith

    3. (3)

       Ms Christeena Carr (Mr McGrady’s partner)

46. [207]

    Through the information revealed by the CCR/RCCR of the phone service, the police concluded that the phone service was being used by Mr Weatherall (rather than Monique Train from Tamworth).

47. [208]

    On 17 February 2020, Senior Constable Brown requested the MIR of Mr Weatherall’s phone service for the period between 26 December 2019 and 6 January 2020. The CCR/RCCR and MIR revealed the following contact:

    1. (1)

       Mr Weatherall’s phone service connected with the Moree cell tower and received several attempts at contact from Mr Fernando’s phone service.

    2. (2)

       At 2:43pm, Mr Weatherall’s handset moved from Moree.

    3. (3)

       At 4:56pm, Mr Weatherall’s handset was at Gunnedah.

    4. (4)

       At 6:41pm, Mr Weatherall’s handset was at Wingen.

    5. (5)

       At 8:27pm, Mr Weatherall’s handset was at Broken Back.

    6. (6)

       At 10:45pm, Mr Weatherall’s handset was at Cooranbong.

    7. (1)

       At 12:50am on 28 December 2019, Mr Weatherall’s handset arrived in Parramatta.

    8. (2)

       Between 11:48pm on 28 December 2019 and 1:25am on 29 December 2019, Mr Weatherall’s phone service connected with the Parramatta cell tower and exchanged 40 SMS messages with two different phone services, both of which were subscribed to Mr Smith.

    9. (3)

       At 9:42pm on 29 December 2019, Mr Weatherall’s phone service attempted to call Ms Kelly-Greenup’s phone service. The call did not connect.

    10. (4)

        At 10:54pm on 29 December 2019, Mr Weatherall’s phone service attempted to call Mr Smith’s phone service. The call did not connect.

    11. (5)

        At 11:49pm on 29 December 2019, Mr Weatherall’s phone service had a 29 second phone call with Mr Fernando’s phone service.

    12. (6)

        Mr Weatherall’s handset remained primarily in the Parramatta area between 28 and 29 December 2019.

    13. (1)

        At 12:53am, Mr Weatherall’s phone service attempted to call Ms Carr’s phone service.

    14. (2)

        Between 1:32am and 4:34am, Mr Weatherall’s handset was in the Campbelltown area.

    15. (3)

        At 3:22pm, Mr Weatherall’s handset was in the Pendle Hill area.

    16. (4)

        At 4:13pm, Mr Weatherall’s handset was in the Westmead area.

    17. (5)

        At 4:18pm, Mr Weatherall’s phone service connected with the Westmead cell tower and attempted to call Ms Kelly-Greenup’s phone service. The call did not connect. An SMS message was sent from Mr Weatherall’s phone service. Other evidence at the trial revealed that the message said, “Answer plz its mungo”. [174] It appear that Mr Porter may have been using Mr Weatherall’s phone.

    18. (6)

        At 4:36pm, Mr Weatherall’s handset was in the Pendle Hill area.

    19. (7)

        At 5:05pm, Mr Weatherall’s handset was in the Parramatta area.

    20. (8)

        At 5:08pm, Mr Weatherall’s phone service connected with the Parramatta cell tower and attempted to call Ms Kelly-Greenup’s phone service.

    21. (9)

        At 6:43pm, Mr Weatherall’s phone service connected with the Parramatta cell tower and attempted to call Mr Fernando’s phone service. The call did not connect.

    22. (10)

        Between 7:51pm and 8:49pm, Mr Weatherall’s handset was in the Campbelltown area.

    23. (1)

        At 9:09am, Mr Weatherall’s handset was at Wallabadah Exchange.

    24. (2)

        At 9:55am, Mr Weatherall’s handset was at West Tamworth.

    25. (3)

        At 6:46pm, Mr Weatherall’s phone service connected with the Bellata cell tower and attempted to call Mr Smith’s phone service. The call did not connect.

    26. (4)

        At 7:30pm, Mr Weatherall’s handset was at Moree.

48. [209]

    On 8 March 2020, Senior Constable Brown requested a Subscriber check for a phone service. The results indicated that the phone was subscribed to the name of Adam McMillan from Bondi. The phone service was a prepaid service which connected on 13 February 2019. On 4 June 2020, Senior Constable Brown conducted a further Subscriber check which confirmed the aforementioned information. On 9 June 2020, Senior Constable Brown requested the “Point of Sale” for the phone service. The results indicated that it was purchased at the Woolworths in Moree. The phone service also used the same IMEI number as another phone service which was subscribed in Mr Porter’s name from 20 January 2020 onwards. The phone service was regularly in contact with the services belonging to the following people:

    1. (1)

       Adina Porter (Mr Porter’s daughter)

    2. (2)

       Betty French (Mr Porter’s mother)

    3. (3)

       Mr Fernando

49. [210]

    The police concluded that the phone service was in use by Mr Porter.

50. [211]

    On 8 April 2020, Senior Constable Brown requested the CCR/RCCR of Mr Porter’s phone service for the period between 26 December 2019 and 22 January 2020 and the incoming and outgoing SMS records of Mr Porter’s phone service for the period between 26 December 2019 and 22 January 2020. On 9 April 2020, Senior Constable Brown requested the MIR of Mr Porter’s phone service for the period between 26 December 2019 and 8 January 2020. The results revealed the following:

    1. (1)

       At 3:32pm, Mr Porter’s phone service connected to the Moree cell tower before leaving with Mr Fernando and Mr Weatherall to travel to Sydney.

    2. (1)

       Mr Porter’s phone service remained primarily in and around the Parramatta area between 28 and 29 December 2019.

    3. (2)

       At 6:32am on 28 December 2019, Mr Porter’s phone service was connected to the Parramatta cell tower and received a 1 minute and 32 second phone call from Ms Adina Porter’s phone service (who was connecting to the Moree cell tower).

    4. (3)

       At 11:58am on 28 December 2019, Mr Porter’s phone service was connected to the Parramatta cell tower and received a 53 second phone call from Mr Fernando (who was connecting to the Guildford cell tower).

    5. (1)

       At 4:54am, Mr Porter’s phone service connected to Mays Hill North cell tower. The service then appeared to cease using the Optus network for the remainder of the day.

    6. (1)

       At 3:40am on 31 December 2019, Mr Porter’s phone service connected to the Maitland South cell tower.

    7. (2)

       On 31 December 2019, 1 January 2020 and 2 January 2020, Mr Fernando’s phone service attempted to make several calls to Mr Porter’s phone service. These calls were not answered.

51. [212]

    Mr Porter’s phone service ceased to be used after 3:40am on 31 December 2019.

52. [213]

    On 10 March 2020, Senior Constable Brown requested a Subscriber check for the phone service of Mr McGrady. The results indicated that the phone was subscribed to Mr McGrady’s name and to an address in Moree. The service was connected on 25 October 2019. On 3 June 2020, Senior Constable Brown conducted a further Subscriber check which confirmed the aforementioned information and the additional fact that the service was a prepaid service.

53. [214]

    On 10 March 2020, Senior Constable Brown requested the CCR/RCCR of Mr McGrady’s phone service for the period between 26 December 2019 and 8 January 2020. On 11 March 2020, Senior Constable Brown requested the MIR of Mr McGrady’s phone service for the period between 26 December 2019 and 8 January 2020. The results indicated the following:

    1. (1)

       At 4:18pm on 27 December 2019, Mr McGrady’s handset was in the Campbelltown area.

    2. (2)

       The service remained in and around the Campbelltown area between 27 and 29 December 2019.

    3. (1)

       At 1:33am, Mr McGrady’s phone service connected to the Campbelltown cell tower and attempted to call Mr Fernando’s phone service. The call did not connect.

    4. (2)

       At 3:40am, Mr McGrady’s phone service connected to the Guildford cell tower.

    5. (3)

       At 4:24am, Mr Fernando’s phone service attempted to call Mr McGrady’s phone service (which was connected to the Parramatta cell tower).

    6. (4)

       At 3:46pm, Mr McGrady’s phone service connected to the Pendle Hill cell tower.

    7. (5)

       Between 4:56pm and 7:04pm, Mr McGrady’s phone service connected to the Parramatta cell tower.

    8. (6)

       At 7:04pm, Mr McGrady’s phone service connected to the Granville cell tower.

    9. (7)

       At 8:26pm, Mr McGrady’s phone service connected to the Campbelltown cell tower.

    10. (8)

        At 10:58pm, Mr McGrady’s phone service connected to the Wentworthville cell tower.

    11. (9)

        At 11:40pm, Mr McGrady’s phone service connected to the Calga Airport cell tower.

    12. (1)

        At 12:37am, Mr McGrady’s phone service connected to the Beresfield cell tower.

    13. (2)

        At 2:11am, Mr McGrady’s phone service connected to the Maitland cell tower.

    14. (3)

        At 6:24pm, Mr McGrady’s phone service connected to the Bellata cell tower.

    15. (4)

        At 7:29pm, Mr McGrady’s phone service connected to the Moree cell tower.

54. [215]

    On 6 January 2020, the police requested a Subscriber check for the phone service ending in ‘701. The results indicated that the phone was subscribed in the name of Stacey Kelly from Guildford. The service was connected on 6 June 2018. On 3 June 2020, Senior Constable Brown conducted a further Subscriber check for the phone service and confirmed the aforementioned information. The phone service had regular contact with the following people:

    1. (1)

       Ms Kelly-Greenup

    2. (2)

       Mr Weatherall

    3. (3)

       Mr Fernando

    4. (4)

       Ms Krystal Swan

    5. (5)

       Ms Elva Smith

55. [216]

    As such, the police concluded that the phone service was used by Mr Smith.

56. [217]

    On 6 January 2020, police requested the CCR/RCCR and the incoming and outgoing SMS records of Mr Smith’s phone service for the period between 27 December 2019 and 6 January 2020. The results of the CCR/RCCR indicated the following:

    1. (1)

       On 29 December 2019 and until 3:18pm on 30 December 2019, Mr Smith’s phone service was in or around the Parramatta area.

    2. (1)

       At 12:19pm, Mr Smith’s phone service (which was connected to the Granville cell tower) received a 1 minute and 15 second phone call from Mr Fernando’s phone service (which was connected to the Parramatta cell tower).

    3. (2)

       At 3:14pm, Mr Smith’s phone service (which was connected to the South Wentworthville cell tower) sent an SMS message to Ms Kelly-Greenup’s phone service (which was connected to the Pendle Hill cell tower). Mr Smith’s phone service then made 5 attempted calls to Ms Kelly-Greenup’s phone service. The calls did not connect.

    4. (3)

       At 4:01pm (after the assault), Mr Smith’s phone service (which was connected to the Pendle Hill cell tower) made a 39 second phone call to Ms Kelly-Greenup’s phone service (which was connected to the Pendle Hill cell tower).

    5. (4)

       Between 4:01pm and 4:52pm, Mr Smith’s phone service called or attempted to call Ms Kelly-Greenup’s phone service 9 times and they exchanged 10 SMS messages.

    6. (1)

       Mr Fernando’s phone service attempted to make several calls to Mr Smith’s phone service on 31 December 2019 and 1 January 2020. None of these calls were answered.

57. [218]

    On 10 January 2020, police requested the MIR for Mr Smith’s phone service for the period between 26 December 2019 and 8 January 2020. The results will be produced later in the timeline of relevant events.

58. [219]

    On 10 January 2020, the police requested a Subscriber check for the phone service ending in ‘578. The results indicated that the phone was subscribed to the name of Mr Smith and to an address in Guildford. The service was activated on 14 September 2019. On 3 June 2020, Senior Constable Brown conducted a further Subscriber check and noted that it was subscribed to the name of Mr Smith but to an address in Petersham instead. The service was a prepaid service which was activated on 11 September 2018. The phone service had regular contact with the following people:

    1. (1)

       Ms Kelly-Greenup

    2. (2)

       Mr Weatherall

    3. (3)

       Ms Krystal Swan

    4. (4)

       Ms Elva Smith

59. [220]

    As such, the police concluded that the phone service was also utilised by Mr Smith.

60. [221]

    On 10 January 2020, the police requested the CCR/RCCR and the incoming and outgoing SMS records of Mr Smith’s phone service for the period between 26 December 2019 and 8 January 2020. The results indicated the following:

    1. (1)

       Between 12:44pm and 1:14pm of 28 December 2019, Mr Smith’s phone service received 3 SMS messages from Mr Weatherall’s phone service.

    2. (2)

       Between 11:48pm on 28 December 2019 and 1:23am on 29 December 2019, Mr Smith’s phone service received a further 14 SMS messages from Mr Weatherall’s phone service.

61. [222]

    On 3 June 2020, Senior Constable Brown requested the MIR of Mr Smith’s phone service for the period between 28 December 2019 and 3 January 2020. The results indicated the following:

    1. (1)

       On 28 and 29 December 2019, Mr Smith’s phone service is in and around the Parramatta area.

    2. (2)

       At 5:29am on 29 December 2019, Mr Smith’s phone service connected to the Mays Hill North cell tower.

    3. (3)

       At 4:46am on 31 December 2019, Mr Smith’s phone service connected to the Granville cell tower.

62. [223]

    When both of Mr Smith’s phone services are viewed together, it appears that he switched from the phone service ending in ‘578 some time on 29 December 2019 to the phone service ending in ‘701. The phone service ending in ‘701 ceased to be used at 12:06am on 31 December 2019. The phone service ending in ‘578 connected to the Granville cell tower at 4:46am on 31 December 2019.

63. [224]

    On 1 January 2020, police requested a subscriber check for Ms Kelly-Greenup’s phone service. The results indicated that the phone service was subscribed in the name of Ms Kelly-Greenup and to an address in Punchbowl. The service was connected on 22 January 2013. On 3 June 2020, Senior Constable Brown conducted a further Subscriber check and confirmed that the phone service was subscribed in the name of Ms Kelly-Greenup but to an address in Petersham instead. The service was cancelled on 18 April 2020.

64. [225]

    On 3 January 2020, the police requested the CCR/RCCR and incoming and outgoing SMS records of Ms Kelly-Greenup’s phone service for the period between 27 December 2019 and 3 January 2020. On 10 January 2020, the police requested the MIR of Ms Kelly-Greenup’s phone service for the period between 26 December 2019 and 8 January 2020. The results indicated the following:

    1. (1)

       At 11:02am, Ms Kelly-Greenup’s phone service (which was connected to the Pendle Hill cell tower) received a 4 minute and 32 second phone call from Mr Smith’s phone service ending in ‘701 (which was connected to the Parramatta cell tower).

    2. (2)

       At 11:45am and 11:46am, Mr Fernando’s phone service (which was connected to the Parramatta cell tower) attempted to make 2 calls to Ms Kelly-Greenup’s phone service. These calls were not answered.

    3. (3)

       At 9:46pm, Mr Weatherall’s phone service attempted to call Ms Kelly-Greenup’s phone service. The call did not connect.

    4. (1)

       Between 6:18am and 8:14am, Ms Kelly-Greenup’s phone service and Mr Smith’s phone service exchanged 12 SMS messages. The contents of one message sent by Ms Kelly-Greenup to Mr Smith at 6:18am was tendered at the trial as part of the Telephone Summary. [175] It said, “Where mungo n that”. [176]

    5. (2)

       From 9:23am onto the majority of the day, Ms Kelly-Greenup’s phone service was connected to the Pendle Hill cell tower.

    6. (3)

       At 3:13pm, Mr Smith’s phone service ending in ‘701 made multiple attempts to contact Ms Kelly-Greenup’s phone service.

    7. (4)

       The attempted contact from Mr Smith’s phone service to Ms Kelly-Greenup’s phone service continued between 3:13pm and 4:52pm.

    8. (5)

       At 4:01pm, Mr Smith’s phone service ending in ‘701 (which was connected to the Pendle Hill cell tower) made a 39 second phone call to Ms Kelly-Greenup’s phone service (which was connected to a different Pendle Hill cell tower).

    9. (6)

       At 4:17pm, Mr Weatherall’s phone service attempted to contact Ms Kelly-Greenup’s phone service. The call was unanswered.

    10. (7)

        At 4:18pm, Mr Weatherall’s phone service sent an SMS message to Ms Kelly-Greenup’s phone service which said “Answer plz its mungo”. [177]

    11. (8)

        At 4:58pm, Ms Kelly-Greenup’s phone service connected to the Wentworthville cell tower.

    12. (9)

        At 6:41pm, Ms Kelly-Greenup’s phone service connected to the Merrylands cell tower.

65. [226]

    Analysis of CCR/RCCR and SMS data of Ms Sampson’s phone service showed that at 3:46pm on 30 December 2019 (while connected to the Pendle Hill cell tower), she made a 77 second phone call to Ms Kelly-Greenup’s phone service.

The timeline of relevant events

1. [227]

   At 4:25pm, an hour and a half after leaving Moree on 27 December 2019, Mr Fernando’s white Holden Commodore was recorded at Boggabri (a small town in north-west New South Wales, 158km from Moree and 515km from Sydney) by the Automated Number Plate Recognition system in operation on New South Wales roads. [178]

2. [228]

   The mobile handset data, which I have reviewed extensively, established that Mr Fernando, Mr Weatherall and Mr Porter travelled in the white Commodore through Narrabri, Gunnedah, Muswellbrook, Cessnock, and Carlingford before arriving in the Parramatta area. [179]

3. [229]

   At 4:18pm, Mr McGrady’s phone service was connected to the Ruse cell tower (in the Campbelltown area). [180] Mr McGrady’s phone service remained in the Campbelltown area between 27 and 29 December 2019. [181] There is no evidence he was in contact with any of the accused until the early morning of 30 December 2019.

4. [230]

   By 12:50am on 28 December 2019, Mr Fernando, Mr Porter and Mr Weatherall were in the “Parramatta area”. [182]

5. [231]

   At around 7:40am, they were in the vicinity of Mr Smith’s premises at Railway Street, Granville, as was Mr Smith. [183] Ms Kelly-Greenup was at Mia Mia Street, Girraween. [184] Mr McGrady was in the Campbelltown area at Airds where he had been with his partner, Ms Carr, for some days. [185] The relative distance between the three suburbs is 56km.

6. [232]

   At 11:58am, Mr Porter’s phone service received a 53 second phone call from Mr Fernando’s phone service. [186] Mr Porter’s phone service was connected to the Parramatta cell tower and Mr Fernando’s phone service was connected to the Guildford cell tower. [187] Nothing turns on this since Mr Fernando and Mr Porter travelled together to Sydney.

7. [233]

   Between 12:44pm and 1:14pm, Mr Smith’s phone service ending in ‘578 received 3 SMS messages from Mr Weatherall’s phone service. [188] (There is no evidence as to the content of those messages)

8. [234]

   At 9:44pm, the white Commodore was recorded at Chestnut Crescent in Bidwill (in the Greater Western Sydney region). [189] There was no evidence as to the significance (or not) of that address in the trial.

9. [235]

   Between 11:48pm on 28 December 2019 and 1:25am on 29 December 2019, Mr Weatherall’s phone service, connected with the Parramatta cell tower, exchanged 40 SMS messages with two different phone services (one ending in ‘701 and the other ending in ‘578), both of which were subscribed to Mr Smith. [190] (There is no evidence as to the content of those messages)

10. [236]

    Mobile telephone records indicate that on 28 and 29 December 2019 Mr Fernando, Mr Weatherall, Mr Porter and Mr Smith were predominantly in or around Parramatta and the surrounding suburbs. [191] This is consistent with Ms Swan’s evidence that Mr Fernando, Mr Porter and Mr Weatherall were staying at Mr Smith’s premises at Granville.

11. [237]

    At 11:02am, Ms Kelly-Greenup’s phone service was connected to the Pendle Hill cell tower. [192] Exhibit MM records the following text messages sent by Mr Smith to Ms Kelly-Greenup:

12. [238]

    At that time, Ms Kelly-Greenup also received a 4 minute and 32 second phone call from Mr Smith’s phone service ending in ‘701 (which was connected to the Parramatta cell tower). [195]

13. [239]

    At 11:45am and 11:46am, Mr Fernando’s phone service (which was connected to the Parramatta cell tower) placed two calls to Ms Kelly-Greenup’s phone service. [196] These calls were not answered. [197] This is the first contact between Mr Fernando and Ms Kelly-Greenup after his arrival in Sydney.

14. [240]

    At 12:00pm, Mr Smith sent the following two SMS messages to Ms Kelly-Greenup:

15. [241]

    I also note that 15 minutes earlier Mr Fernando’s phone attempted contact with Ms Kelly-Greenup. I note Mr Smith’s query of Ms Kelly-Greenup as to where they should meet includes a reference to her “coming” to where he/they were as an option, a query which appears inconsistent with an agreement to meet at the deceased’s unit to assault him. It also appears consistent with some prearrangement to collect the children’s belongings, the accounts Ms Kelly-Greenup and Mr Smith gave to police in their ERISPs. Ms Kelly-Greenup told police this series of texts was responsive to Mr Porter (who she knew as Mr Smith’s cousin) trying to ring her, looking for Mr Smith and her attempts to contact Mr Smith to see what he wanted.

16. [242]

    At 12:04pm, Ms Kelly-Greenup sent the following SMS message to Mr Smith:

17. [243]

    At 12:05:06pm, Mr Smith sent the following SMS message to Ms Kelly-Greenup:

18. [244]

    At 12:05:28pm, Ms Kelly-Greenup sent the following SMS message to Mr Smith:

19. [245]

    At 12:06pm, Mr Smith sent the following SMS message to Ms Kelly-Greenup:

20. [246]

    At 12:08pm, Ms Kelly-Greenup sent the following SMS message to Mr Smith:

21. [247]

    Ms Elva Smith is Mr Smith’s cousin. She knows Ms Kelly-Greenup as the mother of Mr Smith’s sons. Ms E Smith told police that on 29 December 2019, she was speaking to Mr Smith on the telephone when she offered to “look after the boys” for the evening. [205] At approximately 2pm that day, Mr Smith dropped his sons at her unit in North Parramatta. [206] Ms E Smith told police that it was agreed that Mr Smith would collect his sons the following day (30 December 2019). [207]

22. [248]

    At 9:42pm, Mr Weatherall’s phone service was connected to the Parramatta cell tower and attempted to call Ms Kelly-Greenup’s phone service. [208] The call did not connect. [209] This is the first attempted contact between Mr Weatherall and Ms Kelly-Greenup after his arrival from Moree.

23. [249]

    At 10:54:04pm, Mr Weatherall’s phone service connected with the Parramatta cell tower and attempted to contact Mr Smith’s phone service ending in ‘701. [210] The call did not connect. At 10:54:19pm, Mr Fernando’s phone service was also connected with the Parramatta cell tower and attempted to contact Mr Smith’s phone service ending in ‘701 without success. [211]

24. [250]

    At 11:49pm, Mr Weatherall’s phone service connected to the Parramatta cell tower. A 29 second call with Mr Fernando’s phone service was recorded. [212]

25. [251]

    At around midnight on 30 December 2019, Mr Fernando and Mr Weatherall’s mobile telephone records indicated that they travelled from “the Parramatta area” towards “the Campbelltown area”. [213] Mr Smith’s mobile telephone remained in Parramatta. Mr Porter’s mobile telephone was inactive at this time.

26. [252]

    At 12:53am, Mr Weatherall’s phone service connected to the Ruse Junction Road cell tower (in the Campbelltown area) and attempted to call Ms Christeena Carr’s phone service. [214] Ms Carr was Mr McGrady’s partner at the time. She gave evidence that in December 2019, Mr McGrady was staying with her at her home in Airds. [215]

27. [253]

    At 1:33am, Mr McGrady’s phone service attempted to call Mr Fernando’s phone service. [216] The call did not connect. [217] This is the first contact or attempted contact by Mr McGrady with any of the accused. Mr Fernando’s phone service was connected to the Ruse cell tower (in the Campbelltown area). [218] Mr Weatherall’s handset was connected to the Campbelltown cell tower at that time. [219]

28. [254]

    At approximately 3am, Mr Fernando, Mr Porter and Mr Weatherall arrived at Ms Christeena Carr’s premises in Airds. [220] Ms Carr gave evidence that she was asleep in bed when Mr McGrady came into the room and told her that he was getting a ride home to Moree. [221] Ms Carr gave evidence that she did not see who Mr McGrady left with, [222] and that she has never asked him since who he left with. [223] Ms Carr gave evidence that she could not recall if Mr McGrady returned that night. [224] Ms Carr gave evidence that the next time she saw Mr McGrady was a few months later in Moree. [225]

29. [255]

    In the Crown’s submission, the fact that the three accused were collecting Mr McGrady from Airds in the early hours of the morning of 30 December 2019 supported the Crown case that Mr McGrady had by that time, if not earlier, agreed to participate in an assault on the deceased later that day. (Mr McGrady gave a different account to police about his contact with the accused at this time, which I will review later.)

30. [256]

    At 3:40am, Mr McGrady’s phone service utilised the Guildford cell tower. [226]

31. [257]

    At 4:24am, Mr Fernando’s phone service attempted to call Mr McGrady’s phone service. [227] Mr McGrady’s phone service was connected to the Parramatta cell tower. [228] (It is unclear, on the Crown case, why Mr Fernando would be contacting Mr McGrady if he was in his company. Mr McGrady’s account to police provides an explanation.)

32. [258]

    At 4:25am, Mr Fernando, Mr McGrady and Mr Weatherall were in the Parramatta area. [229]

33. [259]

    At 4:34am, Mr Weatherall’s phone service connected to the Parramatta cell tower. [230]

34. [260]

    At 4:54am, Mr Porter’s phone service connected to the Mays Hill North cell tower (near Parramatta). [231] Mr Porter’s phone service then disconnected from the Optus network until 3:37am the following day (31 December 2019). [232]

35. [261]

    Between 6:18am and 8:14am, Ms Kelly-Greenup’s phone service and Mr Smith’s phone service exchanged 12 SMS messages. [233] The content of only one of the text messages was tendered by the Crown at trial. At 6:18am, Ms Kelly-Greenup sent a text message to the accused Smith and asked:

36. [262]

    It seems clear enough from that enquiry of Mr Smith that Ms Kelly-Greenup knew Mr Porter and, it would seem, knew (or believed) Mr Smith knew he was in Sydney.

37. [263]

    From 9:23am onwards, Ms Kelly-Greenup’s phone service was connected to the Pendle Hill cell tower.

38. [264]

    Ms Swan, a distant cousin of Mr Smith (who also knew Ms Kelly-Greenup) drove in a silver Mitsubishi Lancer to Mr Smith’s property at Railway Street, Granville [235] where, at around 8am, she saw three Aboriginal males in Mr Smith’s garage. [236] She described them as follows:

39. [265]

    On the Crown case, “the really tall” male was Mr Porter, “the fat one” with greyish curly hair was Mr Fernando and the third man was Mr Weatherall. The Crown advanced no submission as to the whereabouts of Mr McGrady at this time despite it being the Crown’s submission that he was picked up from Airds earlier that morning. (Mr McGrady told police in his ERISP that he was picked up in the early morning hours of 30 December 2019 but returned to Ms Carr’s premises from where he was collected later that day to be driven to Moree.)

40. [266]

    Ms Swan told police that Mr Smith introduced her to the three males each of whom he referred to as “Uncle”. [238] Ms Swan told police that the men were connected with a white Commodore. [239] At 1:40pm and at 1:42pm, Mr Fernando’s white Commodore was recorded parked at Railway Street, Granville. [240]

41. [267]

    At 12:06pm, Mr Fernando’s phone service attempted to call Mr Porter’s phone service. That call was forwarded to voicemail. [241]

42. [268]

    At 12:18pm, Mr Fernando’s phone service recorded a phone call of 1 minute and 15 seconds with Mr Smith’s phone service ending in ‘701. [242] Mr Fernando’s phone service was connected to the Parramatta cell tower and Mr Smith’s phone service was connected to the Granville cell tower. [243]

43. [269]

    At 2:02pm, Ms E Smith sent a text message to the accused Smith and asked him to collect “the boys” as she had to leave at 4pm. [244] This was the first of a number of attempts by Ms E Smith to locate Mr Smith that day. He did not respond to the text message. (I will italicise the other attempts by Ms E Smith to contact Mr Smith to differentiate contact – or those attempts made by Ms E Smith to contact Mr Smith.)

44. [270]

    At 2:04pm, CCTV footage from D&J Mixed Business located at 46 Crimea Street, Parramatta recorded a silver Mitsubishi Lancer travelling along Crimea Street, Parramatta, a few hundred metres from Mr Smith’s unit. [245] Ms Swan told police that she left Mr Smith’s unit driving in that vehicle that afternoon. She said she did not recall seeing Mr Smith or the other males before she left. [246]

45. [271]

    Between 2:05pm and 2:08pm, Mr Beale, Mr Porter and Mr Smith were recorded entering and leaving D&J Mixed Business on foot. [247] They purchased a drink and cigarettes before leaving, also on foot, and walking towards (or in the general direction of) Mr Smith’s unit. [248] This is the first time Mr Beale is seen in the company of any of the accused. There is no record of any telephone contact between him and any of the six accused before this time or at any time afterwards.

46. [272]

    At 2:41pm, Ms E Smith sent a second text message to Mr Smith which said:

47. [273]

    He did not respond to that text message.

48. [274]

    At 3pm, Mr Fernando, Mr McGrady and Mr Smith were in the Parramatta area. [250] Ms Kelly-Greenup was in the Pendle Hill area. [251]

49. [275]

    At 3:13pm, Mr Smith’s phone service ending in ‘701, connected to the South Wenworthville cell tower, [252] made multiple unsuccessful attempts to contact Ms Kelly-Greenup’s phone service.

50. [276]

    At 3:14:34pm, Mr Smith sent the following text message to Ms Kelly-Greenup’s phone service (which was connected to the Pendle Hill cell tower): [253]

51. [277]

    At 3:15pm, a missed call from Mr Smith was recorded on Ms Kelly-Greenup’s phone, [255] and at 3:16pm a second missed call from Mr Smith was recorded on her phone. [256] Mr Smith’s phone service made a total of five attempted calls to Ms Kelly-Greenup’s phone service in quick succession, none of which were answered. [257]

52. [278]

    At 3:18pm, the white Holden Commodore was recorded on a CCTV camera entering the Enhanced Petroleum service station on the corner of Targo Road and Mia Mia Street, Girraweeen, approximately 200m from the deceased’s unit at 10 Mia Mia Street. The car reversed to a petrol bowser. [258] Mr Beale and Mr McGrady got out through the passenger door behind the driver. Mr Weatherall got out through the other rear passenger door. Mr Porter got out of the front passenger door. Mr Beale filled the car with $40 worth of petrol. [259] Mr Smith’s phone service ending in ‘701 connected to the Pendle Hill cell tower at this time. [260]

53. [279]

    At 3:19pm, a third missed call from Mr Smith’s phone service ending in ‘701 was recorded on Ms Kelly-Greenup’s phone service. [261]

54. [280]

    Between 3:20pm and 3:22pm, Mr Porter paid for the petrol. [262] Mr Weatherall entered the Enhanced Petroleum store, leaving shortly thereafter. Mr Smith got out of the rear passenger door. Mr Porter and Mr Smith were then recorded walking away from the white Commodore in the direction of the deceased’s unit, with Mr Weatherall following closely behind, also on foot. Mr Beale and Mr McGrady got back into the Commodore. It also travelled in the direction of the deceased’s unit. Although Mr Fernando was not identified as the driver from the available CCTV footage, I am satisfied he was the driver. It follows that by this time (that is, by 3:25pm) all six of the male accused travelled together to the deceased’s unit.

55. [281]

    At 3:21pm, Mr Smith received a missed call from Ms E Smith. [263]

56. [282]

    At 3:22pm, Mr Weatherall’s phone service connected to the Pendle Hill cell tower. [264] At 3:41pm, Mr Smith’s phone service ending in ‘701 connected to the Pendle Hill cell tower. [265] At 3:42pm, Mr Fernando’s phone service connected to the Pendle Hill cell tower where it remained until 3:52pm. [266] At 3:46pm, Mr McGrady’s phone service connected to the Pendle Hill cell tower. [267] Between 3:55pm and 4:01pm, Mr Fernando’s phone service registered on four different cell towers, all of which were in the Pendle Hill area. [268]

57. [283]

    I also note that at 3:46pm Ms Sampson’s phone service made a 77 second call to Ms Kelly-Greenup’s phone service.

58. [284]

    This evidence supports other evidence in the Crown case that the six male accused were at the deceased’s unit, or close to his unit. The fact that Mr Fernando’s phone was registering on four cell towers at this time is unexplained. As I noted earlier, neither the Crown nor the accused addressed on the significance of the body of evidence.

59. [285]

    Mr Daniel gave evidence that in the early morning of 30 December 2019 he went the deceased’s unit with Ms Joukhador to visit the deceased. [269] Mr Daniel gave evidence that when they arrived, they both fell asleep in the deceased’s loungeroom. [270] Mr Daniel gave evidence that when he woke up, it was daytime, and the deceased was in the unit, together with a few other people he could not name. [271] Mr Daniel gave evidence that he then went into the deceased’s bedroom and stayed there, drifting “in and out” of sleep for some hours. [272] He said that the deceased was also in the bedroom. [273]

60. [286]

    Mr Daniel gave evidence that there were people “coming in, having a smoke, having a chat and then leaving” throughout the day. [274] Mr Daniel said the deceased remained in the unit during the day, [275] save for an occasion after midday when the deceased left the unit on foot to go to the shops. [276]

61. [287]

    At 2:25pm, the deceased and Mr Newton (a friend of the deceased’s) were recorded on CCTV walking on Pendle Way towards Pendle Hill railway station. [277]

62. [288]

    At 2:34pm, Ms Plasto was recorded walking on Joyce Street towards Pendle Hill railway station. [278] Ms Plasto gave evidence that she went to the Pendle Hill railway station to catch a train to Belmore. [279] She said that when she arrived at the station, she heard Mr Newton (a friend of hers) call out her name. [280] She gave evidence that Mr Newton was standing with the deceased. Ms Plasto described their meeting as a “chance encounter”. [281]

63. [289]

    Ms Plasto gave evidence that they spoke on the platform and returned together to the deceased’s unit. [282] Mr Newton agreed that Ms Plasto told them she wanted to “get on” (some drugs) and that was the reason they returned to the deceased’s unit. [283]

64. [290]

    At 2:41pm, the deceased, Ms Plasto and Mr Newton were recorded walking on Pendle Way towards the deceased’s unit. [284] Ms Plasto gave evidence that as they were walking, she noticed the deceased had a black eye. [285] She gave evidence that the deceased told her he had gotten into a fight recently. [286] She said the deceased told her a couple of his ribs were broken and that he was in a bit of pain. [287] Ms Plasto described the deceased’s demeanour as “very happy” and “positive”. [288]

65. [291]

    Ms Plasto gave evidence that when they arrived at the deceased’s unit, the front door was closed, and the deceased had to knock on his front door to gain entry. [289] She said that when they entered there were approximately five to six people in the unit who she did not know. [290] In cross-examination by Mr Webb, she agreed that there were women she did not know walking back and forth between the loungeroom and bedroom (other evidence establishes the women were Ms Kelly-Greenup, Ms Sampson and Ms Joukhador). [291] She also agreed that there were various people smoking cannabis. [292] Ms Plasto confirmed that the deceased was walking around the unit and talking to other people. [293]

66. [292]

    Mr Daniel gave evidence that when the deceased returned to the unit, he was in the bedroom with Ms Joukhador. [294] He said that Ms Kelly-Greenup and Ms Sampson were in the lounge room along with several other people. [295] Mr Daniel said there was “just people everywhere” and that Ms Joukhador wanted him to stay in the bedroom and sit away from the “other girls” in the lounge room. [296] Mr Daniel gave evidence that Ms Sampson was coming and going between the bedroom and the lounge room. [297]

67. [293]

    Ms Plasto described the deceased’s unit as “trashy” and “generally messy with crap everywhere”. [298] She agreed that people were talking loudly but not aggressively (prior to the accused’s arrival). [299] She gave evidence that the deceased appeared to have a “lot going on” at the time. [300] Ms Plasto agreed that she felt like she should not have gone to the unit. [301]

68. [294]

    Mr Daniel gave evidence that in the afternoon, there was a “bit of screaming, bit of shouting” and that people continued to come and go from the unit. [302] Mr Daniel gave evidence that there was always someone screaming and shouting in the deceased’s unit. [303]

69. [295]

    Ms Plasto gave evidence that shortly after she arrived, a man knocked on the door and the deceased let him in. [304] Ms Plasto said the deceased had a conversation with the man about cannabis and she formed the opinion that the man had come to the unit to buy some drugs. [305] The evidence establishes that this man was Mr Olla. Ms Plasto gave evidence that the deceased then left the unit for around 5 minutes and returned with $20 worth of cannabis. [306] Ms Plasto said she helped Mr Olla chop up the cannabis on the coffee table. [307] Ms Plasto gave evidence that Mr Newton decided to leave the unit and asked her if she would like to come with him. [308] At this time, Mr Olla offered Ms Plasto some cannabis and she decided to stay in the unit to smoke. [309] Mr Newton left the unit without Ms Plasto. Mr Olla gave evidence that he was sitting in the lounge room with Ms Plasto and they were smoking cannabis together. [310]

70. [296]

    Mr Olla was an associate of Mr Daniel. He gave evidence that he saw Mr Daniel in the deceased’s unit briefly on 30 December 2019 but that he “disappeared somewhere”. [311]

71. [297]

    In cross-examination by Mr Webb, Ms Plasto agreed that as she was smoking cannabis in the unit, there were “quite a number of people” that appeared to be “hanging around”. [312] Ms Plasto gave evidence that the deceased told her he was waiting for “something” to be delivered. [313] Ms Plasto said she “got the gist” that the deceased was expecting a large amount of drugs to be dropped off that day. [314] She agreed that the big amount of drugs was most likely ice and that a few people were likely to have ordered the drugs because it was the day before New Years Eve celebrations. [315] In cross-examination by Mr Watson, Mr Olla gave evidence that he probably asked the deceased to “ring [his] mate up” and that Mr Olla was at the unit that day waiting to obtain drugs off someone else (not the deceased). [316]

72. [298]

    Ms Sarah Kol resided in Unit 9 on 10 Mia Mia Street with her two children. She had been the deceased’s neighbour for approximately 18 months prior to December 2019. Ms Kol told police that she left her unit (upstairs from the deceased’s unit) at about 3:30pm when she decided to take her dog out for a walk. As she walked down the stairwell and into the driveway towards the letterboxes, she heard the deceased call out to her in a friendly greeting. He said to her “What are you doing”. She replied that she was taking her dog for a walk. At that time she noticed a large coloured bruise on the right side of the deceased’s bottom lip. When she asked him how he sustained that injury, he said that he got into a fight the previous night at the pub because he was speaking to “some bloke’s missus”. Other evidence in the trial established this was untrue. The deceased was assaulted by Mr Daniels just before midnight on 29 December 2019 in retaliation at the deceased for having given effective control of Mr Daniel’s drugs that were stored in the deceased’s garage to someone else.

73. [299]

    Ms Kol said as the deceased was checking his letter box he looked up Mia Mia Street towards the intersection with Targo Road and said “Who are these cunts”. Ms Kol then saw three men walking down Mia Mia street in their direction. She said they were walking quite quickly and that a white coloured station wagon was driving next to them. Ms Kol’s evidence corresponds with the CCTV footage of the accused heading from the Enhanced Petrol Station at around 3:23pm towards the deceased’s unit (with three in the vehicle and three on foot).

74. [300]

    Ms Kol then walked away along Mia Mia Street with her dog. [317] As she got to the intersection with Targo Road, she looked back and saw the three men who had walked past her on the street talking to the deceased at the letterbox. She said the white car turned into the driveway of the unit block and stopped near the letterbox, as she turned the corner at Targo Road towards Civic Park which backs onto the rear of the unit block.

75. [301]

    I am satisfied, having regard to the CCTV footage and Ms Kol’s evidence, that the six male accused arrived at the deceased’s unit block no later than 3:30pm and met with the deceased out the front. There is nothing to indicate or suggest any animosity or confrontation at that time. It may have been that the deceased was at his letterbox awaiting the arrival of the drugs Ms Plasto believed were due to be delivered.

76. [302]

    Mr McGrady and Mr Smith told police they went to the deceased’s unit that day to “score” some drugs. Mr Smith told police that was what he understood was the reason the “other fellas” were there. Again, for emphasis, this is not evidence available to the Crown in its case against anyone other than Mr McGrady and Mr Smith. Counsel for Mr Fernando, Mr Beale, Mr Porter and Mr Weatherall did not seek to rely upon the ERISPs of Mr McGrady or Mr Smith. They did rely, and heavily, on the unchallenged evidence in the Crown case that the deceased’s unit was a known drug house.

77. [303]

    What occurred after the deceased met with the accused at the letterbox, including the circumstances in which the six male accused entered the deceased’s unit, and what happened inside the unit was the subject of evidence from five Crown witnesses, each of which were visiting the deceased’s unit.

78. [304]

    After walking her dog for “about ten minutes”, Ms Kol returned through to the rear gate at the rear of the apartment unit block, when she saw the same white car she had earlier seen reverse parked in front of garage number 5. She saw six people standing around the car two of whom were standing at the rear of the car between the boot and the garage. She said she did not make eye contact with them or speak to them. She did not see the deceased.

79. [305]

    Mr Olla gave evidence that when the group of men arrived outside (which I take him to mean outside the unit), the deceased asked him if he could help carry multiple heavy “wheel things” downstairs. [318] Both Ms Kelly-Greenup and Ms Sampson refer to the children’s hoverboards as part of the children’s belongings Mr Smith arrived in Mr Fernando’s car to collect. The hoverboards were located at Mr Fernando’s premises. Ms Plasto gave evidence that the deceased asked for help with “part of a segue” (clearly a reference to the hoverboards). [319] Mr Olla agreed and carried the hoverboards downstairs and placed them beside the car in the car park. [320] Mr Olla then returned into the unit to have a “cone”. [321] In cross-examination by Mr Watson, Mr Olla agreed that the person who asked him to carry the hoverboards could have been a woman. [322]

80. [306]

    Ms Plasto gave evidence that there was a knock on the door and “one of the ladies” answered it. [323] She said the deceased was in his bedroom at the time and a large group of people entered the unit. [324] Ms Plasto described the group as all males and of Aboriginal appearance. [325] She said there were approximately eight people in the group. [326]

81. [307]

    Ms Plasto gave evidence that the deceased entered the loungeroom and welcomed the group of men into the unit. [327] She gave evidence that the deceased was friendly towards them and offered them water. [328] She said the deceased did not appear to know them very well. [329] In cross-examination by Mr Watson, Ms Plasto said the mood inside the unit when the group of men arrived was “calm” and that there was “no aggression or anything”. [330] Mr Olla gave evidence that he greeted the men when they entered, “made it all friendly” and offered them a “cone”. [331] Mr Olla said “they were fine” when they entered the unit. [332] In cross-examination, Mr Olla said the men were “friendly as hell” and that Mr Olla shook their hands [333] and that there was no problem, no aggression, no drama and that there was “nothing out of the ordinary”. [334]

82. [308]

    Ms Plasto gave evidence that a few of the males from the group sat down on chairs in the lounge room and the rest remained standing. [335] She said that some of the males were pacing back and forth and one or two went into the kitchen. [336] She said the group of men remained in the lounge room and did not enter the bedroom. [337] In cross-examination, Ms Plasto agreed that she was on her phone “tuning out” and that everything around her was “just white noise”. [338] Ms Plasto did give evidence that one of the males sat next to her and was a “little friendly” [339] had “frizzy hair”. [340] (The evidence establishes this was Mr Fernando.) She said at one stage, Mr Fernando smelled a fry pan burning in the kitchen and took it off the stove to rinse it. [341]

83. [309]

    Ms Plasto said that Mr Olla handed Mr Fernando a bong containing cannabis and that some of the cannabis spilt on the floor. [342] Mr Olla confirmed that he gave “cones” to three of the men. [343] Mr Olla gave evidence that they were smoking from a bong and that it was being passed around. [344] Mr Olla gave evidence that the deceased was in the lounge room when the bong was being passed around. [345]

84. [310]

    In direct contrast to Ms Plasto and Mr Olla’s evidence, Mr Daniel gave evidence that he heard “commotion, screaming and yelling” in the lounge room and in the doorway. [346] He said he did not go into the lounge room to see what the commotion was about. He gave evidence that Ms Joukhador was standing next to him when the deceased entered the bedroom. [347]

85. [311]

    Mr Daniel gave evidence he told Ms Joukhador to leave the unit with Ms Sampson. [348] Ms Joukhador gave evidence that Ms Sampson had looked out the window and appeared concerned about why the group of people were there. [349] Mr Olla gave evidence that after the group of men entered the unit, “a girl walked out with another girl” (Ms Joukhador and Ms Sampson). [350] Mr Olla gave evidence that he saw Mr Daniel walk with the two women before returning into the bedroom. [351] Mr Olla did not see Mr Daniel again.

86. [312]

    Mr Daniel gave evidence that when he was back in the bedroom, he asked the deceased to jump off the balcony with him. [352] The deceased said no and asked Mr Daniel to wait, to which Mr Daniel replied “I’m not waiting. I’m jumping off”. [353] It was at that time that he jumped off the balcony and landed on his feet on the concrete. [354] He said that his legs collapsed, and that he tore the ligaments in his ankle. [355] A photograph of Mr Daniel’s ankles were tendered by the Crown. [356] These were taken on 14 February 2020, approximately six weeks after 30 December 2019.

87. [313]

    Mr Daniel gave evidence that after he jumped off the balcony, he went to his Holden Barina which was parked outside in the back of the unit block. [357] He said that he saw Ms Joukhador and Ms Sampson coming out of the doorway. [358] He said that he drove away in his Barina and Ms Joukhador and Ms Sampson drove away in Ms Joukhador’s black Porsche.

88. [314]

    At 3:40pm, both cars were recorded travelling away from the deceased’s unit on Mia Mia Street and towards Targo Road. [359]

89. [315]

    Ms Sampson gave evidence that she was in the deceased’s bedroom with Mr Daniel and Ms Joukhador.

90. [316]

    At one stage, she left the bedroom with Ms Joukhador and saw “Jero” [Mr Smith], “Shaney Boy” [Mr Weatherall], “Hound dog” [Mr McGrady], “Mungo” [Mr Porter] and “Ralf” [Mr Fernando] in the loungeroom. Ms Sampson gave evidence there was another male she did not know. The Crown case is that this was Mr Beale. Ms Sampson gave evidence that she said “something” to Mr Fernando but could not recall what she said.

91. [317]

    Ms Sampson said she walked “straight out the front door” with Ms Joukhador. Ms Sampson also confirmed that Mr Daniel did not walk out with them.

92. [318]

    At 3:44pm, Ms Sampson entered Pendle Hill railway station (after being dropped off by Ms Joukhador. [360]

93. [319]

    At 3:47pm, Mr Smith received a further missed call from Ms E Smith. [361] Ms E Smith also sent a text message at this time asking for his whereabouts. [362]

94. [320]

    At 3:48pm, Ms Sampson was recorded on a CCTV camera walking on Civic Avenue (back) towards the deceased’s unit. [363] Detective Ruskin gave evidence that the distance from the Civic Avenue CCTV camera and the back fence of 10 Mia Mia Street, Girraween, was 195 metres. [364] Detective Ruskin gave evidence that at an average walking pace of 5 kilometres per hour, it would take approximately 2 minutes and 15 seconds (or 2.24 minutes) to travel that distance by foot. [365] On that analysis, Ms Sampson had returned to Mia Mia Street by 3:51pm. The significance of that fact bears directly upon Ms Sampson’s reliability and credibility which I will consider when I review her evidence in detail later.

95. [321]

    Between 3:51:30pm and 3:51:41pm, the black Porsche (with Ms Joukhador and Mr Daniel inside) turned right into the driveway of a unit block next door to 10 Mia Mia Street. [366]

96. [322]

    At 3:53pm, Mr Smith received a further missed call from Ms E Smith. [367]

97. [323]

    At 3:54pm, Ms E Smith sent the following text message to Mr Smith:

98. [324]

    Mr Olla gave evidence that the group of men who arrived were only in the unit for a “couple of minutes”. [369] He gave evidence that they said, “we’re going” and that a girl said “Vergel come downstairs”. [370] Ms Plasto gave evidence that the deceased said he was going to go downstairs and that he would be back in a few moments. [371] Ms Plasto gave evidence that the deceased then went downstairs with “two ladies” and “all of the Aboriginal men that had come in the lounge room”. [372] Accepting, as I do, that Ms Sampson had returned from Pendle Hill railway station by 3:51pm, I am satisfied she was one of the two women Ms Plasto saw in the deceased’s unit and that her evidence that she met everyone in the carpark must be rejected, Mr Olla supported Ms Plasto’s evidence and gave evidence that “they” (the group of people and the accused) went downstairs. [373] Mr Olla gave evidence that the men were not carrying anything. [374]

99. [325]

    Ms Plasto remained upstairs for approximately 5 minutes. [375] She said she heard loud voices but they did not sound “aggressive or like people were yelling at each other”. [376] She said that it was “just loud because there were a lot of people”. [377] Ms Plasto gave evidence that she was starting to “feel uncomfortable” alone in the deceased’s unit and a male offered to walk her to the Pendle Hill railway station. (The evidence establishes this was Mr Olla.) Ms Plasto accepted the offer. Mr Olla gave evidence that he finished his cone and then they walked downstairs together. [378]

100. [326]

     Ms Plasto gave evidence that when they arrived downstairs she saw “most of the people from the group”. [379] Ms Plasto confirmed that the males who were downstairs were the same as the “Aboriginal males that were upstairs”. [380] She said she saw the deceased outside the side door (opposite the internal staircase) “gesticulating” to approximately half of the males. [381] Ms Plasto gave evidence that the deceased was talking to them but that she did not hear what was said. [382] Ms Plasto gave evidence that “not everybody from upstairs was there”. She said she could not say how many there were. [383] Ms Plasto gave evidence that the rest of the group was standing around a white car in the parking lot. [384] In cross-examination, Ms Plasto confirmed that the two women (who were upstairs) were standing next to the car. [385]

101. [327]

     Mr Olla gave evidence that when he was downstairs, the group of people were in the car park, “talking amongst each other” and “about to leave”. [386] Mr Olla gave evidence that the deceased was there and to his observation “all happy” talking to one of the people from the group. [387] Mr Olla said the people were talking to each other “for a minute or two”. [388] In cross-examination, Mr Olla confirmed that there was no aggression, no yelling and no finger pointing. [389] Mr Olla then said goodbye and walked out the ground level carpark towards the back gate and into Civic Park. [390]

102. [328]

     A diagram that was drawn by Ms Plasto during a police interview on 29 January 2020 was tendered. [391] It identified the positions of the accused and the deceased.

103. [330]

     Ms Plasto said she called out to the deceased that she was leaving, and he said, “Okay, all right.” [392] Ms Plasto gave evidence that the deceased “was already sort of walking through the doorway…to come to the basement area” and that at that point, she walked off into the ground level carpark. [393]

104. [331]

     Ms Plasto and Mr Olla then left the carpark through the back gate and into Civic Park. [394]

105. [332]

     At 4:00:12pm, Ms Plasto and Mr Olla were recorded walking on Civic Avenue. [395] Using the same estimate provided by Detective Ruskin for Ms Sampson’s likely return to the deceased’s unit by 3:50pm, Ms Plasto and Mr Olla left the deceased’s unit via the rear carpark at approximately 3:58pm.

106. [333]

     Between 3:58:49pm and 3:59:03pm, the black Porsche (with Ms Joukhador and Mr Daniel inside) was recorded on CCTV camera turning left out of the driveway of the unit block next to 10 Mia Mia Street where it had been parked and travelled towards Targo Road. [396] (Neither Ms Joukhador nor Mr Daniel gave any evidence of seeing or hearing anything happening in the carpark from their vantage point in the next door unit block.) The white Commodore was recorded travelling on Mia Mia Street directly behind the black Porsche. [397] The black Porsche turned right onto Targo Road from Mia Mia Street and the white Commodore turned left onto Targo Road. [398]

107. [334]

     Between 3:59:03pm and 3:59:10pm, the black Porsche (with Ms Joukhador and Mr Daniel inside) executed a u-turn on Targo Road and travelled (back) to Mia Mia Street towards the deceased’s unit. [399]

108. [335]

     Between 4:00:40pm and 4:01:34pm, the white Commodore stopped on Gilba Road a few streets away from Mia Mia Street and Mr Beale, Mr Porter and Mr Weatherall got out and walked along Gilba Road away from Targo Road. The white Commodore then executed a u-turn and travelled (back) towards the deceased’s unit.

109. [336]

     Between 4:02:06pm and 4:02:15pm, the white Commodore was recorded travelling on Mia Mia Street, away from the deceased’s unit, that is, (back) towards Targo Road. [400]

110. [337]

     Ms Kol placed a call to triple-0 at 4:02:57pm. The events she described before placing that call are as follows. She said after she returned to her unit from walking her dog, she was in her apartment speaking to her son when she heard the sounds from downstairs of male voices arguing and yelling. She said she could not hear what was being said but that she heard “thuds or physical contact and … a male voice grunting”. She told police she also heard the sound of a garage door moving. She told police she went to her balcony but could not see anything, but she could see another resident on her balcony before that woman walked back inside her apartment (the evidence establishes that this is Ms Fatimah Mohammed). Ms Kol said that she could hear “what sounded like feet moving or shuffling on concrete coming from downstairs”. She said the sound of the male voice grunting continued which prompted her to call triple-0. [401]

111. [338]

     Ms Kol told police when she was on the phone to triple-0 she still heard the male voice grunting. Eventually she walked down the stairs and saw the deceased lying at the bottom of the internal stairs.

112. [339]

     Ms Fatimah Mohammed also resided at the Mia Mia Street unit block with her family. She was 15 years old at the time and she had lived there for approximately 10 months. Ms Mohammed gave evidence in the proceedings. Her statement was also tendered. [402]

113. [340]

     In her statement, she said she was in her bedroom when “all of a sudden [she] heard a guy scream out in pain”, but when she looked out of her bedroom window she could not see anything. (Her parents’ unit is at the rear of the block.) She told police:

114. [341]

     She told police at the same time she heard the man scream out in pain, she heard “several other men yelling things like “shut the fuck up” (or words like that)”.

115. [342]

     She said she walked out on the balcony at the back of her unit, and although she could not hear the guy screaming out in pain any longer, she saw a white car (she described as a small white car) parked next to another white car (which is always in the unit block) and saw a man opening and closing the doors to the small white car. She told police he opened the front passenger door and closed it and opened the back passenger door and closed it but he did not get into the car. She said that car drove off towards Mia Mia Street but the man stayed behind. She said the man walked over to the garages and out of her sight.

116. [343]

     Aligning Ms Kol’s evidence and Ms Mohammed’s evidence which was not in contest, the assault on the deceased, which they heard in progress, occurred between 3:58pm (when, on Detective Ruskin’s analysis, Ms Plasto and Mr Olla left through the rear gate) and 3:59pm (when the white Commodore is recorded travelling on Mia Mia Street behind Ms Joukadhor’s black Porsche).

117. [344]

     At 4:01pm, Mr Smith’s phone service ending in ‘701 connected to the Pendle Hill cell tower. [403] Mr Smith’s phone service ending in ‘701 made a 39 second phone call to Ms Kelly-Greenup’s phone service (which was connected to a different Pendle Hill cell tower). [404] Between 4:01pm and 4:52pm, Mr Smith’s phone service ending in ‘701 exchanged ten SMS messages (the text of eight of which were tendered as part of Exhibit MM and extracted below). The Crown places significant reliance on the text messages in its case, particularly against Mr Smith, but also Ms Kelly-Greenup, as constituting admissions against interest. They were each invited by interviewing police to comment upon the texts in the context of the different accounts they both gave of the events of 30 December 2019 and the assault in which the deceased sustained the fatal head injury. I will review that material when I come to consider their ERISPs.

118. [345]

     Mr Smith also made nine calls/attempted calls to Ms Kelly-Greenup’s phone service. [405]

119. [346]

     Between 4:03:17pm and 4:04pm, Mr Beale, Mr Porter and Mr Weatherall were recorded on CCTV cameras walking along a footpath on Gilba Road, [406] consistent with being dropped off by the white Commodore after the arrest (see earlier).

120. [347]

     At 4:11pm, Mr Fernando’s phone service connected to the Westmead cell tower. [407] Between 4:11pm and 5:30pm, Mr Fernando’s phone service was not active on any cell towers. [408]

121. [348]

     At 4:12:07pm, Ms Kelly-Greenup and Ms Sampson were recorded on CCTV cameras on Civic Avenue carrying a number of bags. [409] Using the same estimate provided by Detective Ruskin, Ms Kelly-Greenup and Ms Sampson left the deceased’s unit (with the bags) at approximately 4:10pm (that is, after Ms Kol made the triple-0 call and before the arrival of emergency services at 4:26pm.

122. [349]

     At 4:12:51pm, Mr Smith’s phone service ending in ‘701 received a further missed call from Ms E Smith. [410]

123. [350]

     At 4:13:42pm, Mr Smith sent the following text message to Ms Kelly-Greenup:

124. [351]

     At 4:13:45pm, Ms Sampson and Ms Kelly-Greenup arrived at Pendle Hill railway station [412] where they were recorded looking at their mobile phones before entering the lift to the concourse.

125. [352]

     At 4:15:00pm, Mr Smith sent the following text message to Ms Kelly-Greenup:

126. [353]

     Between 4:15:04pm and 4:15:59pm, Ms Sampson and Ms Kelly-Greenup were recorded walking along the concourse at Pendle Hill railway station; [414] Ms Kelly-Greenup held her mobile phone to her ear. The women then turned right down a set of stairs towards the railway platform before they stopped, turned around and walked back up the stairs.

127. [354]

     Between 4:15:56pm and 4:16:32pm, Ms Sampson and Ms Kelly-Greenup were recorded on CCTV cameras walking away from the Pendle Hill railway station, onto Wentworth Avenue and towards the Pendle Inn located on Wentworth Avenue at Pendle Hill.

128. [355]

     At 4:18:15pm, Mr Weatherall’s phone service connected to the Westmead cell tower and attempted to call Ms Kelly-Greenup’s phone service. [415] The call did not connect. [416]

129. [356]

     At 4:18:36pm, Ms Sampson and Ms Kelly-Greenup were recorded entering the Pendle Inn.

130. [357]

     At 4:18:48pm, Mr Weatherall’s phone service sent the following text message to Ms Kelly-Greenup:

131. [358]

     At 4:19pm, Ms Kelly-Greenup received a missed call from Mr Smith. [418]

132. [359]

     At 4:20:48pm, Mr Smith sent the following text message to Ms Kelly-Greenup:

133. [360]

     At 4:22:10pm, Ms Kelly-Greenup sent the following text message to Mr Smith:

134. [361]

     At 4:33:53pm, Ms Kelly-Greenup and Ms Sampson were recorded outside the Pendle Inn.

135. [362]

     At 4:34:50pm, the white Commodore entered the Pendle Inn carpark. [421]

136. [363]

     Between 4:34:57pm and 4:35:30pm, Ms Kelly-Greenup was recorded on CCTV cameras speaking with the occupant(s) of the white Commodore. [422] Ms Sampson was talking on her mobile phone and walked back into the Pendle Inn, followed by Ms Kelly-Greenup.

137. [364]

     At 4:35:25pm, Ms Sampson entered the main bar area of the Pendle Inn and approached the bar before walking out of view. Ms Kelly-Greenup walked into the main bar area.

138. [365]

     At 4:36:26pm, Mr Smith was standing next to the white Commodore, talking to the occupant(s). He then entered the Pendle Inn and approached Ms Kelly-Greenup.

139. [366]

     At 4:36:37pm, the white Commodore left the carpark of Pendle Inn and turned left Wentworth Avenue, travelling away from the Pendle Inn. [423]

140. [367]

     At 4:38:17pm, the white Commodore returned to the Pendle Inn carpark. [424]

141. [368]

     Between 4:40:42pm and 4:41:54pm, Mr McGrady entered the Pendle Inn and approached Mr Smith. [425] Mr Smith walked away and Mr McGrady approached Ms Kelly-Greenup, who had her mobile phone to her ear. Mr McGrady then entered the gaming area (where Mr Smith was), and Mr Smith returned to the main bar area and spoke to Ms Kelly-Greenup. Mr McGrady returned to the main bar area and waited momentarily before walking out of the front door of the Pendle Inn.

142. [369]

     Between 4:41:35pm and 4:42:26pm, Mr Smith appeared to be in conversation with Ms Kelly-Greenup in the Pendle Inn.

143. [370]

     Between 4:42:46pm and 4:43:20pm, Mr Smith and Mr McGrady were recorded walking back towards the white Commodore. Mr Smith entered the front passenger seat and Mr McGrady the rear driver’s side door.

144. [371]

     At 4:43:41pm, the white Commodore travelled out of the Pendle Inn carpark and turned onto Wentworth Avenue.

145. [372]

     At 4:55pm, Ms Kelly-Greenup collected her bags and left the Pendle Inn in a taxi and at 5:09pm, she was recorded entering Ms Sampson’s residence at Merrylands Road, Merrylands with her bags. [426]

146. [373]

     At 4:56pm, Mr McGrady’s phone service connected to the Parramatta cell tower. [427] It remained there until 7:04pm. [428]

147. [374]

     At 4:58pm, Mr Beale and Mr Porter were recorded walking south on Pitt Street, Granville, which intersects with Railway Street. [429]

148. [375]

     At 5pm, Mr McGrady, Mr Smith and Mr Weatherall were at Railway Street, Granville. [430]

149. [376]

     At 5:01pm, Mr Smith’s phone service ending in ‘701 connected to the Mays Hill North cell tower. [431]

150. [377]

     At 5:05pm, Mr Weatherall’s phone service connected to the Parramatta cell tower. [432]

151. [378]

     At 5:08pm, Mr Weatherall’s phone service connected to the Parramatta cell tower attempted to call Ms Kelly-Greenup’s phone service. [433]

152. [379]

     At 5:30pm, Mr Fernando was at Railway Street, Granville. [434] Mr Fernando’s phone service connected to the Marsden Street Bridge cell tower in the Parramatta area. [435]

153. [380]

     At 5:59pm, Mr Smith’s phone service connected to the Rydalmere cell tower (east of Parramatta) where it then remained for several hours. [436]

154. [381]

     At 6pm, Mr Fernando and Mr Smith were at Collett Parade in North Parramatta (Ms E Smith’s property). [437] Mr McGrady and Mr Weatherall were at Railway Street, Granville. [438] (Ms E Smith confirmed in her statement to police that Mr Smith arrived at her unit at approximately 6pm to collect his children and that he left her unit at approximately 7pm after they had dinner together.) [439] This is further corroborated by Mr Fernando’s phone service, where at 6:02pm, it was connected to the Rydalmere cell tower (east from Parramatta) and remained there for approximately 45 minutes. [440]

155. [382]

     At 6:05pm, Ms Kelly-Greenup sent the following SMS message to Mr Daniel:

156. [383]

     At 6:43pm and 6:44pm, Mr Weatherall’s phone service attempted to call Mr Fernando’s phone service. [442] The calls were not answered. [443]

157. [384]

     At 6:57pm, Mr Fernando’s phone service connected with the Parramatta cell tower where it remained until 7pm. [444]

158. [385]

     At 7:04pm, Mr McGrady’s phone service connected to the Granville cell tower. [445]

159. [386]

     At around 7:05pm, Mr Fernando and Mr McGrady moved away from the Parramatta area. [446] After that time, Mr Fernando’s phone service connected with several cell towers in the areas of Granville, Liverpool, Moorebank, and Casula before finally connecting to the Campbelltown cell tower at 7:52pm. [447]

160. [387]

     At 7:51pm, Mr Weatherall’s phone service connected to the Campbelltown cell tower. [448]

161. [388]

     After 7:52pm, Mr Fernando’s handset connected to several cell towers around the areas of Bradbury, Ambarvale, and Rosemeadow. [449]

162. [389]

     At 8:26pm, Mr McGrady’s phone service connected to the Campbelltown cell tower. [450]

163. [390]

     At 8:33pm, Mr Fernando’s handset connected to the Rosemeadow Central cell tower. [451]

164. [391]

     At 8:49pm, Mr Weatherall’s phone service was still connected to the Campbelltown cell tower. [452] However, after 8:49pm, Mr Weatherall’s phone service was not active on any cell towers until 9:09am the following day (on 31 December 2019) when it connected to the Wallabadah cell tower (which is approximately between Muswellbrook and Tamworth). [453]

165. [392]

     At 9:10pm, Mr Smith sent the following SMS message to Ms Kelly-Greenup:

166. [393]

     Sometime after 10pm, Mr McGrady’s phone service moved from the Campbelltown area. [455]

167. [394]

     At 10:35pm, Mr Fernando’s phone service connected with the Casula Showtime cell tower (near Liverpool). [456]

168. [395]

     At 11:40pm, Mr McGrady’s phone service connected to the Calga Airport cell tower (near Gosford). [457]

169. [396]

     At 11:41pm, Mr Fernando’s phone service connected with the Somersby cell tower (near Gosford). [458]

170. [397]

     At 12:06am, Mr Smith’s phone service ending in ‘701 connected to the Granville cell tower. [459] This was the last occasion when the phone service was used. The evidence establishes that Mr Smith’s commenced using the phone service ending in ‘578 after this time.

171. [398]

     At 12:20am, Mr Fernando’s phone service connected with the Freemans Waterhole cell tower. [460]

172. [399]

     At 12:37am, Mr McGrady’s phone service connected to the Beresfield cell tower (around 30km from Freemans Waterhole). [461]

173. [400]

     At 1:32am, Mr Fernando’s phone service connected with the Maitland South cell tower. [462] At around this time, Mr McGrady was also in Maitland. [463]

174. [401]

     At 2:11am, Mr McGrady’s phone service connected to the Maitland cell tower. [464]

175. [402]

     At 3:37am, Mr Porter’s phone service utilised the Largs cell tower. [465]

176. [403]

     At 3:40am, Mr Porter’s phone service utilised the Maitland South cell tower. [466] Mr Porter’s phone service then ceased to be used after this time.

177. [404]

     At 4:46am, Mr Smith’s phone service ending in ‘578 connected to the Granville cell tower. [467]

178. [405]

     At 6:02am, Mr Fernando’s phone service connected with the Gillieston Heights cell tower (near East Maitland). [468]

179. [406]

     At 6:30am, Mr Fernando left Maitland. [469]

180. [407]

     Ms Nola Weatherall gave evidence that in the morning of 31 December 2019, the accused Mr Fernando, Mr Beale, Mr McGrady, Mr Porter and Mr Weatherall arrived at her home in East Maitland. [470] Ms Weatherall gave evidence that she was told they were travelling to Moree and that she travelled with them. [471] She said that Mr Porter was the driver, Mr Weatherall was on the right side of the back seat, Mr McGrady was in the middle, Mr Beale was on the left side and Mr Fernando was in the back “under all the bags”. [472]

181. [408]

     At 7:02am, Mr Fernando’s phone service connected to the Ravensworth cell tower (between Muswellbrook and Singleton). [473]

182. [409]

     At 7:05am, Mr McGrady’s phone service connected to the Ravensworth cell tower. [474]

183. [410]

     At 8:18am, Mr Fernando’s phone service connected with the Mount Helen cell tower (near Murrurundi). [475]

184. [411]

     At 8:20am, Mr McGrady’s phone service connected to the Mount Helen cell tower. [476]

185. [412]

     At 9:02am, both Mr Fernando and Mr McGrady’s phone service connected with the Wallabadah cell tower. [477]

186. [413]

     At 9:09am, Mr Weatherall’s phone service connected with the Wallabadah cell tower. [478]

187. [414]

     At 9:55am, Mr Weatherall’s phone service connected with the West Tamworth cell tower, where it remained until 4pm. [479]

188. [415]

     At 9:59am, Mr McGrady’s phone service connected to the West Tamworth cell tower. [480]

189. [416]

     At 10am, Mr Fernando, Mr McGrady and Mr Weatherall were in Tamworth. [481]

190. [417]

     At 1:15pm, Mr Fernando and Mr Beale were in South Tamworth. [482]

191. [418]

     At 4pm, Mr Weatherall’s phone service connected to the Westdale cell tower (leaving the Tamworth area and moving towards Gunnedah). [483]

192. [419]

     At 4:04pm, Mr McGrady’s phone service connected to the Westdale cell tower and was also leaving the Tamworth area. [484]

193. [420]

     At 5:08pm, Mr Weatherall’s phone service connected to the Emerald Hill cell tower (north-west from Gunnedah). [485]

194. [421]

     At 5:09pm, Mr McGrady’s phone service connected to the Emerald Hill cell tower. [486]

195. [422]

     At 5:25pm, Mr Velasquez died.

196. [423]

     At 6:24pm, both Mr Weatherall and Mr McGrady’s phone services connected to the Bellata cell tower. [487]

197. [424]

     Ms Weatherall gave evidence that the white Commodore travelled to Mr Porter’s father’s home in Tamworth to obtain petrol money before they left at approximately 6:30pm to continue their journey to Moree. [488]

198. [425]

     At 6:46pm, Mr Weatherall’s phone service connected to the Bellata cell tower and attempted to call Mr Smith’s phone service ending in ‘578. [489] The call did not connect.

199. [426]

     At 6:59pm, the white Commodore was captured by ANPR at Newell Highway in Bellata. [490]

200. [427]

     At 7:29pm, Mr McGrady’s phone service connected to the Moree cell tower where it remained thereafter. [491]

201. [428]

     At 7:30pm, Mr Weatherall’s phone service connected to the Moree cell tower where it remained thereafter. [492]

202. [429]

     Ms Weatherall gave evidence that Mr Fernando stayed in Tamworth [493] and that Mr Beale was dropped en route at a bus stop to travel to Inverell. [494]

203. [430]

     Between 31 December 2019 and 2 January 2020, Mr Fernando’s phone service remained in the Tamworth area and attempted to make several phone calls to the phone service of Mr Porter, Mr Weatherall and Mr Smith. [495] All the calls appeared to have either been unanswered or forwarded to voicemail. [496]

204. [431]

     At 2:30pm on 2 January 2020, Mr Fernando left Tamworth [497] and by 6:30pm he was in Moree. [498]

Brittany Sampson’s evidence and her reliability as a witness

1. [432]

   As I have already observed, Brittany Sampson is a critical witness in the Crown case as she was the only witness who identified each of the seven accused as present at the deceased’s unit on 30 December 2019, and (taking her evidence at its highest) present in the carpark area when he was fatally assaulted, a fact foundational to proof of the Crown case against each of the accused.

2. [433]

   Despite each of defence counsel urging me to approach Ms Sampson’s evidence with extreme caution, her identification of each of the accused in the deceased’s unit on the afternoon of 30 December 2019 (after 3:30pm) was not in issue. That is hardly surprising where, upon a review of the movements schedule, [499] and the evidence of Ms Kol, the six male accused are in each other’s company at the Enhance service station between 3:18pm and 3:22pm on 30 December 2019 after which they made their way (either on foot or in the white Commodore) to the deceased’s home unit, arriving no later than 3:30pm.

3. [434]

   Neither was it in issue that aside from Mr Beale, who Ms Sampson did not know, she knew each of the other five accused as “boys from back home” (which she explained was Moree) and that she knew Ms Kelly-Greenup as a friend. I also note that Ms Sampson gave evidence (also not in contest) that she was with Ms Kelly-Greenup inside the unit when the six male accused arrived.

4. [435]

   Save for referring to Mr Smith who she knew as “Jero”, being “Stacey’s baby daddy”, which I take to mean she knew he was the father of Ms Kelly-Greenup’s children, the Crown did not adduce any additional evidence from Ms Sampson as to how well she knew any of the accused. There was no evidence of any telephone contact between Ms Sampson and any of the five male accused that day or at any other time.

5. [436]

   The Crown adduced no evidence from Ms Sampson that she spoke with any of the accused when she saw them in the lounge room of the deceased’s unit as she emerged from one of the bedrooms, other than speaking in passing to Mr Fernando as she left through the front door with Ms Joukhador sometime around 3:40pm. [500] She could not remember what she said to Mr Fernando or anything that he said to her. [501] The Crown adduced no evidence from Ms Sampson that she heard any of the accused speaking to the deceased or to each other in the unit, or that they were behaving in any particular manner. She gave no evidence as to why she left when she did.

6. [437]

   Each of defence counsel submitted I would place no weight at all on Ms Sampson’s evidence as to the circumstances in which, following her return to the deceased’s unit block on the Crown case at around 3:51pm on foot she made observations of the events in the downstairs carpark area.

7. [438]

   Counsel for each of Mr Fernando, Mr Beale, Mr McGrady, Mr Porter and Mr Weatherall submitted that Ms Sampson’s evidence that they were in the carpark when she returned was not only devoid of any meaningful detail but, when her evidence is considered with the evidence of Ms Plasto and Mr Olla and their observations of what was happening in the downstairs carpark area as they left through the gate in the back fence backing onto Civic Park at approximately 3:58pm, I would give Ms Sampson’s evidence (such as it was) no weight at all in determining whether the Crown had proved its case that the accused were physically assaulting the deceased or, in the cases advanced by Mr Smith and Ms Kelly-Greenup, watching on whilst he was being assaulted.

8. [439]

   An assessment of the credibility and reliability of any witness is quintessentially a question for the tribunal of fact. In undertaking an assessment of Ms Sampson’s credibility and reliability, I direct myself that I am not obliged to accept or reject the whole of her evidence. Some parts of her evidence may be worthy of acceptance whilst other parts unworthy of acceptance, either because those parts are contradicted by evidence which I do accept or because her evidence is unworthy of acceptance for other reasons.

9. [440]

   In this case, however, where Ms Sampson is a critical witness in the Crown case for the reasons set out above, in determining the weight her evidence is entitled to be accorded in proof of any of the facts in dispute, I propose to approach her evidence with considerable caution, in large part, although not exclusively, because of her demeanour in the witness box and her general attitude to the questions asked of her by the Crown, including pursuant to a grant of leave under s 38 of the Evidence Act.

10. [441]

    It became evident from Ms Sampson’s first appearance as a witness in the proceedings that she was extremely hostile to having been subpoenaed to give evidence. She first appeared before me from custody on 26 July 2022 after I issued a warrant for her arrest being satisfied, on the basis of evidence assembled by the Crown, that she was deliberately avoiding police and intent on avoiding her obligations as a witness under subpoena.

11. [442]

    She did not give evidence on that occasion. She agreed to cooperate with police by providing a police statement detailing the events of 30 December 2019 in a form which could be served on the accused in conformity with the Crown’s obligation to advise the accused of the evidence it proposed to lead from her. Her effective refusal to provide police with a statement resulted in the Crown’s application that she first give her evidence on the voir dire. [502]

12. [443]

    In her first appearance as a witness in the proceedings on the voir dire on 8 August 2022, Ms Sampson showed no regard for the protocols of a criminal trial and scant regard for the authority of the Court. In fact, her demeanour in the witness box throughout the course of her multiple appearances, including as a witness in the trial, was that of a person suffering from an anxiety or mood disorder with poor impulse control. Although there was no clinical evidence tendered by the Crown to confirm any diagnosis of a mental illness, the evidence that was available about Ms Sampson’s background, her life circumstances, her repeated claims to having anxiety and her accompanying behaviour, including her demeanour generally, allows me to assess her general lack of cooperation and, at times, her openly belligerent attitude when questioned by the Crown prosecutor, in the context of her being generally a mentally unstable person.

13. [444]

    There were multiple occasions during Ms Sampson’s evidence when I had to direct her not to raise her voice and not to argue with the Crown (or with me) and to simply address herself to the questions asked of her and to endeavour to answer those questions to the best of her ability. There were also multiple occasions when I had to intervene and direct Ms Sampson not to swear or abuse the Crown prosecutor. Although I was reluctant to intervene and ask questions of her, given the nature of her answers, even if only to seek clarification, many of which were non-responsive, there were occasions when I felt compelled to do so. There was no objection from any defence counsel to me taking that approach.

14. [445]

    I will return to consider the net effect of Ms Sampson’s evidence and its capacity to add to or undermine proof of the facts that are in issue. Suffice at this time to make the observation that other than her evidence that she visited the deceased’s unit on the afternoon of 30 December 2019 and that she saw the deceased, Ms Kelly-Greenup, Mr Daniels and Ms Joukhador inside the unit in the company of other visitors whose names she could not remember, and her evidence that upon leaving the unit with Ms Joukhador she saw the six male accused in the lounge room of the unit and that she saw “them” in the ground floor carpark upon her return through the back gate from Civic Park a short time later, Ms Sampson repeatedly claimed a lack of memory of the events of that day. In particular, she claimed she had no memory at all of some of what occurred in the downstairs carpark area of the deceased’s unit or no capacity to recall those events with clarity given the passage of over three years and her stressful life circumstances in the interim.

15. [446]

    It was not clear to me whether Ms Sampson was deliberately misconducting herself as a witness and feigning no memory of relevant events, or whether her long-standing and chronic addiction to the drug “ice” had so severely compromised her capacity to participate in the trial process in a meaningful way that her capacity to recall the events 30 December 2019 with any clarity was also compromised. The extent of her drug addiction was well supported by the evidence adduced on the voir dire, including that she was using the drug “ice” on 29 December 2019 and likely under the influence of its ongoing effect on 30 December 2019.

16. [447]

    In all those circumstances, I consider it appropriate that I give myself a warning in accordance with s 165 (1)(c) [503] of the Evidence Act that Ms Sampson’s evidence may be unreliable and the need, in those circumstances, to exercise caution in deciding whether I should accept her evidence and, if I do, the weight to be given to it.

17. [448]

    No questions were asked of Ms Sampson by defence counsel on the voir dire. The transcript of her evidence on the voir dire was tendered by consent as part of her evidence in the trial. [504]

18. [449]

    When Ms Sampson was recalled to give evidence in the trial, on the Crown’s application I granted leave under s 38 of the Evidence Act to enable the Crown ask leading questions about a number of discrete areas where I was persuaded Ms Sampson’s evidence was generally unfavourable or where she had made prior inconsistent statements. [505] The source of her prior inconsistent statements was an ERISP convened on 29 January 2020 after police spoke with her at Parramatta Local Court where she was appearing as a defendant in an unspecified criminal matter. I am satisfied Ms Sampson voluntarily participated in that interview as part of the unfolding police investigation into the deceased’s murder as a potential and important witness to the events in the downstairs garage. I am, however, also satisfied that her presentation in the interview was, at the very least, highly suggestive that she was drug affected.

19. [450]

    The Crown did not tender Ms Sampson’s answers to police questions in the ERISP to prove the fact of a prior inconsistent statement or to seek to persuade me in closing address that I would prefer her earlier account of events in the garage to the account he gave in evidence. Ms Sampson not cross-examined by defence counsel in the trial.

20. [451]

    When Ms Sampson was first called to give evidence on the voir dire she gave the account I referred to earlier of Ms Kelly-Greenup being in the deceased’s unit on the afternoon of 30 December 2019 and seeing each of the male accused in the deceased’s unit as she was leaving with Ms Joukhador, including having a very limited and non-specific engagement with Mr Fernando as she was leaving. I note she was not asked by the Crown and otherwise gave no evidence of knowing Mr Daniels had jumped off the balcony from the deceased’s bedroom although, according to Ms Joukhador she was with Ms Sampson and Mr Daniels in the bedroom before they left together and that when she and Ms Sampson got downstairs Mr Daniels “popped up” next to them. I also note that, according to Mr Daniels, he saw Ms Sampson with his girlfriend at the front of the unit after he jumped from the balcony.

21. [452]

    Ms Sampson did give evidence that she went to the train station in Ms Joukhador’s car but returned to the deceased’s house on foot because she needed to get some money from Ms Kelly-Greenup in order to purchase a tin of milk for her infant son. For reasons I will come to presently, I have grave doubts that was her genuine motivation for returning to the deceased’s unit.

22. [453]

    I note that Ms Sampson’s arrival and departure from the Pendle Hill railway station where she was driven by Ms Joukhador between 3:40pm and 3:44pm, and her return journey to the deceased’s unit on foot (passing a CCTV camera en route at 3:48pm) is recorded in the schedule of movements assembled by the Crown and tendered in the Crown case. [506]

23. [454]

    Ms Sampson then gave the following evidence:

24. [455]

    When she was asked again by the Crown where the other accused were located when she was standing with Mr Smith and Ms Kelly-Greenup she said, and repeatedly, she did not know where they were. In fact, she went further and said she did not see them and did not see the deceased.

25. [456]

    She gave the following evidence:

26. [457]

    Although Ms Sampson gave graphic evidence of hearing the deceased screaming and that she tried to help him because he “couldn’t get up off the ground”, she said repeatedly she did not know “why he was the way he was because she didn’t see it”. She gave the following evidence:

27. [458]

    After regaining her composure under guidance from me, she gave the following further evidence:

28. [459]

    After confirming that she went up into the deceased’s unit to help Ms Kelly-Greenup carry her bags downstairs, Ms Sampson said she did not see “the others” and that she did not see them leave. [512]

29. [460]

    She said she walked with Ms Kelly-Greenup to the Pendle Hill railway station but as the train was delayed they went to the Pendle Hill Inn where she and Ms Kelly-Greenup remained for a while before she returned to her home alone. She said when she got home Ms Kelly-Greenup was already there.

30. [461]

    On my review of the CCTV footage of Ms Kelly-Greenup and Ms Sampson inside the gaming room of the Pendle Inn, and Ms Sampson’s apparent indifference to the time she was spending there drinking and playing the machines, her evidence that she returned to the deceased’s unit earlier that afternoon to get either milk or money for milk for her infant son is difficult to accept as the truth. In light of her chronic use of the drug “ice” as at 30 December 2019 and her presence at the deceased’s unit, a notorious drug house, I am inclined to the view that she returned either in the hope or expectation that she would get access to “ice” and that she was with Ms Kelly-Greenup (and Mr Smith) downstairs in the carpark with that motivation.

31. [462]

    On the voir dire, Ms Sampson was asked by the Crown whether she remembered seeing anything on the ground around the deceased when she went to him after hearing his screams and she said she did not. I note that the Crown did not ask her where “on the ground” the deceased was lying when she attended to him. When she gave evidence in the trial that issue was pursued by the Crown prosecutor. She gave the following evidence:

32. [463]

    Under a grant of leave, the Crown prosecutor was permitted to suggest to Ms Sampson that the reason she could not see the deceased but could hear his screaming was because there was a car parked between where she was standing and where the deceased was lying, that proposition being put consistent with the Crown case in closing submissions that I would be satisfied from the crime scene evidence that the deceased was assaulted in front of the door to garage 5 and that the white Commodore was reversed parked into that area behind which the assault took place.

33. [464]

    The following questions were asked:

34. [465]

    Under a further grant of leave the Crown was permitted to put directly to Ms Sampson that she told police in her January 2020 ERISP that she saw a white Commodore wagon in the garage area and, further, that while it was in that position she did not see who or what was behind the car and that it was only when the car moved that she saw the deceased on the ground. Although Ms Sampson did not tell police that the deceased was assaulted out of her view behind that car, I was satisfied, when granting leave to the Crown, that was an available inference from what Ms Sampson told police and, for that reason, it was a matter the Crown was entitled to explore by asking leading questions.

35. [466]

    The grant of leave did not entail the Crown taking Ms Sampson to the content of the ERISP, in the sense of asking her to reflect upon the answers she actually gave either by reading them or playing an excerpt from the recorded interview. I was satisfied in accordance with s 192 of the Evidence Act that that would prolong the process of the cross-examination in circumstances where, as I have already observed, she was an extremely difficult witness to control. I was also satisfied the grant of leave should be restricted in that way in circumstances where Ms Sampson had made it clear beyond any question that she had no recall of participating in the interview and where, having reviewed the ERISP carefully myself, I am in no doubt she was seriously drug affected. I was satisfied, however, that the Crown was entitled to put to her what she told police in order to stimulate her memory or invite her to adopt the accuracy of what she told police in January 2020 or if she rejected what she said as untrue or something she did not tell police as a basis for the Crown to seek to prove the prior statements in its case.

36. [467]

    Ms Sampson gave the following evidence:

37. [468]

    The Crown’s cross-examination with leave concluded at this point with the Crown informing me he had no further questions of Ms Sampson. As I noted earlier, there was no cross-examination of Ms Sampson by any of defence counsel.

38. [469]

    The Crown did not seek either at the conclusion of Ms Sampson’s evidence or any time later in the trial to tender the questions and answers in the ERISP where Ms Sampson was recorded telling the police about the position of the white Commodore relative to the deceased, that her view of him was obscured and the fact that after the white Commodore moved the deceased was lying on the ground. Accordingly, there was no evidence of the fact that she had made a prior inconsistent statement. Although the questions asked by the Crown prosecutor were based upon what she had informed police in the ERISP, the questions were framed so as to ask whether she “recalled” telling police about the presence of the commodore and its association with hearing the deceased screams. Her answers that she did not recall provided no basis for the Crown to attempt to persuade me that I should accept her prior statements as the fact in circumstances where the Crown did not seek to tender those excerpts from her ERISP.

39. [470]

    The Crown did not ultimately make that submission in his closing address in any event.

Further directions

1. [471]

   In this trial, I am conscious, and I direct myself accordingly, that it is not my role or function, either in directing myself as the judge of law or making factual findings as the tribunal of fact, to endeavour to find a case of criminal culpability in any of the accused. My role and function is to determine whether the Crown has proved the criminal culpability of each of the accused for the murder of the deceased beyond reasonable doubt on the basis of the case that the Crown elected to prosecute at trial.

2. [472]

   Neither is it my role or function as the tribunal of fact to seek to improve or perfect, or change in any way, the approach of the Crown to proving its case.

3. [473]

   As a matter of fairness to each of the accused, I am obliged to consider whether the Crown has proved the guilt of each of them referable to the evidence adduced by the Crown at trial against them individually, and the case ultimately put by the Crown in closing submissions against them individually. That is important in this trial, as it is in criminal trial process generally. It is a fundamental principle inherent in an adversarial system of criminal justice that it is for the Crown to prove the guilt of an accused, on the case it prosecutes, beyond reasonable doubt.

4. [474]

   The Crown’s final submissions and the analysis each defence counsel gave to the evidence as it relates to either proving or raising a doubt about the guilt of their client highlights the nature and the extent of the facts in dispute.

5. [475]

   I have endeavoured to resolve the factual disputes that I consider to be fundamental to the Crown proving the guilt of each of the accused beyond reasonable doubt. I have also endeavoured to identify and, where possible, resolve the conflict between the Crown and each of the accused as to whether the facts of which I am satisfied, and the inferences legitimately drawn from those facts, are capable of proving guilt as the ultimate fact in issue beyond reasonable doubt or whether, in light of those findings, I am left with a reasonable doubt as to guilt, either because I am not satisfied of the existence of the joint criminal enterprise to assault the deceased beyond reasonable doubt or, if I am satisfied of that fact, whether the Crown has proved the participation of each of the accused in that criminal enterprise beyond reasonable doubt.

6. [476]

   Even were I satisfied of those related facts, I have also endeavoured to identify and, where possible, resolve the conflict between the Crown and the accused as to whether the evidence allows me to attribute to each of them (or any of them) foresight of the possibility that really serious harm would be inflicted on the deceased by one of those who was party to the physical assault on the deceased and whether that person would act with the intention of inflicting harm of that kind.

7. [477]

   To repeat, the Crown submitted that the events of 30 December 2019 and the proven movements of various people including the accused, the deceased and Crown witnesses that day are, when ordered chronologically, a sound and rational basis upon which to find not only that each of the accused was physically present in the ground level car park area at the time of the assault, but that their presence together in that area, when viewed in the context of all of the evidence at the trial (including the six male accused travelling together, as if in convoy, to the deceased’s unit and leaving together at a time when, on any view of the evidence, the deceased had been subject of a brutal assault) is capable of rational explanation only because each of the accused was party to a joint criminal enterprise of the scope and nature contended for by the Crown.

8. [478]

   In advancing that submission, the Crown submitted that there is no competing inference (either in the ERISPs in which three of the accused participated, to which I will refer in a moment, or otherwise arising on the evidence admissible against all seven accused) that explains the alignment of the facts and circumstances that culminated in the fatal assault on the deceased in the carpark shortly before 4pm on 30 December 2019, an assault in which, on the Crown case, at least two of the accused wielded weapons at about the head of the deceased (one of which was bought to the scene of the assault in Mr Fernando’s white Commodore, the other seized by Mr McGrady from the stack of bricks in the carpark) allowing a finding to be made that they were aware of the likelihood that weapons would be used in the assault to intentionally inflict really serious injury.

9. [479]

   As I have already observed, Dr Little’s evidence is critical to the Crown’s “two weapons theory”, a theory which defence counsel submitted is unfounded when Dr Little’s evidence is critically reviewed.

Dr Little’s evidence including the Crown’s “two weapons theory”

1. [480]

   Dr Little gave evidence that the grouped fractures to the deceased’s skull, extending across into the right temporal bone were associated with extensive acute intracranial haemorrhage within and around the brain and underlying damage to the brain tissue. Dr Little noted that the lacerating injury to the deceased’s forehead (mid left) extended into the tissues of the scalp with no underlying skull fracture. She said both head injuries were the result of the application of significant blunt force.

2. [481]

   The injury to the forehead (which was the subject of post-mortem photographs [516] and marked on the anatomical drawings [517] ) was described in Dr Little’s report as follows:

3. [482]

   A further laceration at the lateral end of the left eyebrow (not the subject of post-mortem photographs but marked on the anatomical chart) was described in her report as follows:

4. [483]

   Following dissection of the facial tissues, bruising was noted over the mucosal surface of the central and lower lip and over the area of the left and right cheekbones. The injury to the lower lip was also associated with bruising over the right chin, as Dr Little described it, “essentially in the same region” [518] as the lower lip.

5. [484]

   Areas of generalised bruising and areas of abrasion were noted on the deceased’s trunk and the left and right lower limbs. These injuries were described in Dr Little’s evidence as non-specific abrasions, however, in the absence of any brush abrasions (other than on the lower ankle and the lower shin) she was unable to be definitive as to whether those injuries were the result of the application of blunt force or falling onto a rough surface.

6. [485]

   Samples of the soft tissue associated with the injury to the deceased’s forehead, the right lower lip the left and right cheeks and the left intercostal muscles and what was described as the left posterior scalp were taken for microscopic examination. On examination of the slides, Dr Little identified what she described as “some evidence of inflammation” with inflammatory cells called neutrophils present. The appearance of neutrophils without any haemosiderin (which is associated with the breakdown of haemoglobin over a period of two to three days) Dr Little was not able to be other than very general in the age of the injuries associated with those samplings. Her best estimate was that what she saw as she described it “under the microscope” was consistent with the injuries having been sustained within 24 hours of death, although that timeframe could extend for some hours.

7. [486]

   I note that Dr Little also identified displaced fractures of the nasal bones and the fracture of the seventh rib with an adjacent contusion of the chest wall. Both injuries were revealed on the CT series performed pre-mortem and confirmed in post-mortem. She did not sample the tissue in area around the fractured nasal bones but did observe there was no evidence of healing on the CT scans. The Crown adduced no evidence from Dr Little as to the mechanism or likely mechanism that resulted in those injuries. In cross-examination she said the fractured rib and the fractured nose were consistent with a punch or kick.

8. [487]

   Significantly, neither of those injures are apparently relied upon by the Crown as injuries inflicted in the course of the fatal assault, or apparently relied upon in support of the Crown case that there were multiple assailants. I assume the Crown took that approach because there was other evidence in the trial that the deceased was physically assaulted in the bedroom of his home unit shortly before midnight on 29 December 2019 by Mr Daniel, involving the delivery of punches to his face and kicks to his ribs. Those injuries were clearly evident to various people after the assault. [519] That evidence was not challenged by the Crown.

9. [488]

   Although Mr Daniel was not cross-examined about his motivations in attacking the deceased, I am satisfied on the available evidence that it was in retribution for the deceased allowing another person access to the deceased’s garage where Mr Daniel had “a bag” in safe storage, a bag which contained illicit drugs either belonging to Mr Daniel or for which he had to account to others. That finding is of potential significance in explaining Mr Daniel’s behaviour on 30 December 2019 when, upon the arrival of the accused at the unit, he jumped from the balcony and drove away in his car. Although it forms no part of the Crown case (or the cases advanced by the accused) that the accused were in any way implicated in the lost or stolen bag of drugs, there is an available inference that Mr Daniel feared that whoever the men were, they might exact retribution on him for his assault on the deceased or the lost or stolen drugs or both. It might also explain why Mr Daniel returned some short time later and parked in the carpark of the adjoining units on Mia Mia Street from where he emerged after the assault (which he did not witness) and after the Commodore had driven away and, upon finding the deceased in obvious physical distress, left without awaiting the arrival of police. I will return to consider that evidence to the extent that it bears relevantly on the resolution of facts in issue in the trial, including where in the downstairs carpark the fatal assault took place, the circumstances immediately preceding the assault and how many of the accused were physically involved in that assault.

10. [489]

    Although it is not at all clear which, if any, of the range of secondary bruises and abrasions identified by Dr Little at post-mortem are not relied upon by the Crown as having been sustained in the course of the fatal assault, that is, which injuries may have been inflicted by Mr Daniel in addition to the broken ribs and potentially the broken nose, I did not propose to place any weight on the subcutaneous soft tissue injuries Dr Little identified in the cheeks of the deceased or the bruising on his jaw line, again given that there is evidence in the trial that the deceased was assaulted prior to the afternoon of 30 December 2019. I note that Ms Kol saw the bruising to the deceased’s face within an hour of the assault when she spoke to him at the letterboxes to the unit block at about 3:30pm.

11. [490]

    Dr Little was not invited by the Crown to offer an opinion as to whether there was any basis for differentiating between or qualifying the degree of blunt force that was applied to the deceased’s head for the injury to the forehead and the fatal injury to have resulted other than her comment that the site of the comminuted skull fracture is “quite thick” and that to cause of fracture of that kind “requires a lot of force”. [520]

12. [491]

    Underlying Dr Little’s opinion that each of the two injures to the deceased’s head (the back of the head and the forehead) were the result of the application of bunt force (and, in the case of the back of the head, “a lot of force”) was what was left as an unstated assumption was that the injuries were the result of separate forceful blows or strikes. Save for the fact neither injury could be rationally explained by a fall or a push against a hard surface or a punch (as to which see later), Dr Little was not invited by the Crown to offer an opinion as to the sequence, or likely sequence in which those two injuries were inflicted, or any opinion about the manner in which they were inflicted, whether referable to the shape and contour of the injuries; their location relative to each other; the likely direction of impact between the weapon and the deceased’s head and face, or the impact upon the deceased’s balance or his level of consciousness when either or both the injury to his forehead and the fatal injury to his skull were inflicted.

13. [492]

    In cross-examination, Dr Little was invited to consider the possibility that the skull fracture may have been the result of the deceased’s skull coming in to contact with a hard surface, either by a push onto a unyielding surface or a fall onto the concrete floor of the garage or by his head coming into contact with the concrete columns that form part of the internal structure of the ground level garage) or the tiled surface of the internal passageway at the base of the internal stairway where his body was ultimately found by emergency services at 4:25pm.

14. [493]

    Dr Little gave the following evidence:

15. [494]

    Dr Little was asked whether she was categorically ruling out the possibility that the skull fracture resulted from the deceased head coming into contact with concrete floor of the garage, she said:

16. [495]

    Dr Little was also invited in cross-examination to consider the possibility that the injury to the deceased’s forehead may have been the result of a punch if the assailant was wearing a ring or other accessory on his hand, as to which she gave the following evidence:

17. [496]

    The lacerating injury to the outer edge of the right eyebrow referred to earlier was also identified by Dr Little as a separate blunt force injury. She also thought it unlikely that injury was sustained due to a punch where the underlying bone was not fractured. Dr Little was not asked by either the Crown or cross-examining counsel whether that injury might have been sustained by the deceased falling with his head angled to the right onto the concrete floor of the carpark or onto a wall or other structure within the carpark area.

18. [497]

    The only “weapon” Dr Little was invited by the Crown to consider as having caused or likely to have caused either or both the fatal injury and the injury to the deceased’s forehead was the house brick seized from the crime scene. She was not invited by the Crown to consider whether the house brick was used to inflict the lacerating injury to the edge of the eyebrow.

19. [498]

    Despite furnishing a further expert certificate after she was invited by police to consider photographs of the house brick [524] and photographs of two separate lengths of wood of different surface appearances and length, when objection was taken to the Crown adducing evidence of Dr Little’s opinion as to the potential for either of the wooden objects to have caused the head injuries, it was ultimately accepted that because the Crown had not identified either of those items as evidence that would be tendered in the Crown case (there being no evidence of their provenance and no forensic evidence of any kind that linked either piece of wood with the deceased) Dr Little’s opinion as to the likelihood (or not) of either of those items being implicated in the death of the deceased was not adduced by the Crown and Exhibit Q was amended accordingly. [525]

20. [499]

    In the result, insofar as the house brick possibly being the weapon used to inflict the injury to the deceased’s forehead, Dr Little considered that in the absence of any obvious abrasion to the skin around the injury site (or, it must be assumed, any abrasion in the area of the injury to the left eyebrow, although that was not specifically referred to) and in the absence of any blood smears or tissue on the brick consistent with the brick being the source of either lacerating injury, Dr Little was of the opinion it was unlikely the brick was the weapon used.

21. [500]

    Insofar as the potential implication of the brick in the infliction of the fatal wound, in her evidence in chief Dr Little said an object such as a brick “could have caused that injury”. [526] In cross-examination, she confirmed that there was no abrasion or mark of any description on the skin of the scalp overlying the fracture site and no laceration to the scalp at the injury site.

22. [501]

    After confirming that if the brick had been used to inflict the fatal injury it must have been wielded under considerable force, she agreed in cross-examination that in the absence of something cushioning the impact of the brick with the deceased’s head she would have expected to see some evidence of abrasion on the scalp, although she was unprepared to offer an opinion as to the percentile likelihood of evidence of that kind presenting on post-mortem. [527] She did agree that were the deceased bald she would have expected to have seen an abrasion on the surface of scalp but, if he was wearing a cap (he was not) and had hair (his hair was close cropped) this might have operated to cushion the blow.

23. [502]

    Dr Little was not asked to offer an opinion as to the likelihood of there being abrasions on the surface of the scalp referable to the actual length or thickness of the deceased’s hair at the injury site. In cross-examination she agreed that her autopsy report described the deceased’s hair length as a “short crewcut”. She was not, however, invited to review her opinion as to the brick possibly being implicated in the skull fractures in light of his “short crewcut” or the photograph of the deceased’s “short crewcut” taken during the autopsy being of little or no cushioning capacity. Neither was she invited in re-examination by the Crown to revisit the likelihood of the brick being implicated in the skull fracture given that the length of the deceased’s hair and the style of his haircut despite that being a live issue raised in cross-examination as potentially undermining Dr Little’s evidence that the brick was the weapon which inflicted the fatal injury.

24. [503]

    In my view, the Crown’s closing submission that I should reason to verdict on the basis that the house brick was likely to have been used to inflict the fatal head injury, a submission that made no reference to the close cropped length of the deceased’s head hair and on any common sense analysis, unlikely to have any, or any significant capacity to “cushion” the impact of the house brick applied under force, was unpersuasive for that reason. The Crown’s closing submissions rested solely upon the fact that the deceased was not bald, without addressing, in any meaningful way, what I consider must have been a very limited capacity in the deceased’s close-cropped hair to have any cushioning effect if the house brick was wielded with the force needed to have caused the complex of skull radiating fractures.

25. [504]

    Additionally, there is nothing in the DNA evidence, which I will review presently, which elevates the likelihood of the brick being implicated in the fatal assault and some evidence that operates to diminish the possibility of the house brick being wielded at the deceased head (or at his body) that is, being used as a weapon at all.

26. [505]

    Dr Little was not invited by the Crown to consider any other potential weapon whether by general type, shape, contour or construction as capable of inflicting either or both of the head injuries, or as capable of inflicting any of the range of secondary blunt force injuries (being abrasions and bruises) she identified on the legs, arms and torso of the deceased.

27. [506]

    It cannot be overlooked that both Mr Smith and Mr McGrady gave an account in their respective ERISPs that they saw a length of wood (differently described by each of them) being implicated, or potentially implicated in the attack on the deceased. Despite the Crown inviting me to reject both accounts as self-serving, and that I should disregard them entirely in determining whether the Crown has proved its case against those two accused beyond reasonable doubt, the Crown did not seek to adduce opinion evidence from Dr Little as to the potential (in her expert opinion) for a length of wood (in the general form described by each of those two accused) wielded under significant force to have inflicted either or both of the lacerating head injuries (including the fatal injury).

28. [507]

    The accused were under no obligation in the questions put to Dr Little in cross-examination to propose or to suggest a weapon which might have been wielded at the deceased or the number of weapons that might have been implicated in the fatal assault.

29. [508]

    The Crown’s reliance on Dr Little to support the Crown’s two weapon theory is all the more surprising given that the Crown was on notice, in the way the trial was conducted on behalf of each of the accused, that whether the forensic evidence supported a necessary factual finding that the house brick was used to either inflict the fatal wound (or, for that matter, any of the blunt force injuries revealed on autopsy) was a matter in serious contention. The absence of any abrasive injuries associated with any of numerous blunt force injuries identified on autopsy is, in my view, also significant when considering the weight of the Crown’s closing submissions that because there must have been two weapons used to assault the deceased, there must have been two assailants.

The DNA evidence and its contribution to the “two weapons theory”

1. [509]

   Dr Sienna Collins, forensic biologist, gave evidence in the Crown case. She was the author of an Expert Certificate prepared pursuant to s 177 of the Evidence Act in which she reported upon 170 forensic samples provided to her by police between 2 January 2020 and 20 December 2021.

2. [510]

   Those samples included samples in the categories of:

3. [511]

   Although Dr Collins’ Expert Certificate was tendered in which her DNA analysis was reported referable to each of the 170 separate samples, [528] the Crown prepared and tendered a schedule extracted from the Expert Certificate which was limited to only 20 of the samples submitted. [529] It was the Crown case they were the only results relevant to the resolution of the facts in issue in the trial.

4. [512]

   Before proceeding to an analysis of those results, I note that Dr Collins provided an Appendix to her Expert Certificate, a document headed “Overview of Procedures and Methods used in the Forensic biology/DNA laboratory, New South Wales Strategic and Analytical Science Service”.

5. [513]

   As I am sitting without a jury, it is not necessary to review or summarise the information in the Appendix as it relates to the operation of the DNA identification systems and operations within the DNA laboratory in the analysis of DNA samples or, for that matter, the statistical calculations that are deployed in the identification and differentiation of mixed DNA profiles. Neither is it necessary to analyse the likelihood ratio of match statistics or the application of that analysis in Exhibit X.

6. [514]

   I do note, however, as Dr Collins reported, there are several mechanisms by which DNA may be transferred. Direct contact involves the transfer of DNA directly onto an object, surface, or person from the source of that DNA, usually another person, where that person physically touches an object or surface. It may also involve contactless transfer where, for example, shed blood is transferred to an object following injury, or other bodily fluids or skin cells are shed and are transferred to an object without the source of the DNA having had direct contact with the object. Dr Collins described a process known as “secondary transfer” where it is possible for a person’s DNA to be deposited onto an object, surface, or where the person whose DNA is collected has not had any direct contact with the object or surface.

7. [515]

   Ms Kelly-Greenup and Mr Fernando’s DNA were identified in a trace swab from the mouthpiece of a “bong” seized from the deceased’s lounge room with Mr Smith’s DNA identified in a trace swab from what was described as “the threaded area of bottle”. Those findings are uncontroversial having regard to the evidence adduced by the Crown, through Mr Olla, that “bongs” were packed and provided to the visitors and Ms Kelly-Greenup was living in the deceased’s unit.

8. [516]

   The controversial finding was in a single swab (R2) taken from each of the edges of a house brick located in the ground level car park proximate to a pool of blood near the roller door to garage five was subject to DNA profiling. The deceased’s DNA and Mr McGrady’s DNA was identified in that single swab. [530]

9. [517]

   I note that seven further tape lifts for trace DNA (R73, R78, R82, R83, R86, R87and R89) were taken from the sides of the house brick. They revealed a mixture of the deceased’s DNA with at least one other person (and on two tape lifts, two or more people) none of whom were identified as the accused. Those findings do not advance the Crown case.

10. [518]

    The deceased’s DNA was identified in what were described as swabs of dried blood from three areas of the house brick (R3, R4, R90), one of which was from the chip side of the brick and another from a stain inside the edge of one of the core holes in the brick.

11. [519]

    Additional tape lifts applied to each of the edges of the brick also confirmed two discrete areas of the brick (described as the “chipped side of the brick” and “the brick”) where dried blood was visible.

12. [520]

    No evidence was led from the Crown about the size, shape, or location of the dried blood to indicate or suggest a mechanism or possible mechanism for the blood to be on the surface of the brick in either of those two areas. Accordingly, other than the swabs taken from the blood stains containing the DNA of the deceased, there is no evidence to allow for any finding that the deceased’s blood was deposited on the brick in the course of being attacked with it as distinct from it being transferred to the brick after he had been assaulted by his shed blood coming into contact with the brick or bloodied clothing coming into contact with the brick or bloodied clothing coming into contact with the brick.

13. [521]

    In light of what I will review presently as Mr McGrady’s account to police of his closeness to and contact with the stack of bricks as the Commodore was being reverse parked past the stack of bricks (an account he volunteered in his ERISP without any suggestion by police about the significance of the bricks), I am unable to exclude as a reasonable possibility that Mr McGrady’s DNA was deposited somewhere along the edges of the brick by incidental or secondary transfer (that is, without him ever touching the brick with his hands) and that his DNA was mixed in with the deceased’s DNA as the major contributor to that single sample, in those circumstances, a sample which I note was obtained from a very broad method of sampling across multiple edges of the brick.

14. [522]

    In short, I am not persuaded by the DNA evidence or Dr Little’s evidence that the house brick was implicated in the assault at all, even less so that it was wielded by Mr McGrady in a fatal blow to the deceased’s head.

15. [523]

    I turn now to consider the three ERISPs, mindful of the direction I have given myself as to use that may be made of them by their tender in the Crown case.

Mr Smith’s ERISP

1. [524]

   On 29 June 2020, Mr Smith was interviewed by Detective Sgt Ruskin following his arrest that morning for the murder of the deceased. Also present was Senior Constable Lonsdale. Mr Smith had a support person in attendance.

2. [525]

   Mr Smith told police that he lived at unit 16, 146 Railway Street, Granville and had lived at those premises since January 2019. He said he lived those premises alone. His current girlfriend (a woman he had been in a relationship for over a year) lived at separate premises at Lidcombe.

3. [526]

   Mr Smith identified Ms Kelly-Greenup as the mother of his three children aged 10,12 and 15 from whom he was estranged.

4. [527]

   Detective Sgt Ruskin invited Mr Smith to confirm that upon his arrest he volunteered to police that “he didn’t do anything” and that he was “standing with Britney and Stacey behind the car, away from it, I was away from it”. He also confirmed that he told police the deceased was someone he described as “a mate and “a good bloke”, and he “wouldn’t do anything” to the deceased. Later in the interview he told police he had met the deceased eight months earlier through Will Dennis and “drugs”.

5. [528]

   After Mr Smith confirmed that he had spoken to the Aboriginal Legal Service and that despite their advice he agreed to be interviewed:

6. [529]

   He repeated that he was sitting behind “the car” when the incident occurred. [531] He explained it in the following way:

7. [530]

   He identified the man who was asking those questions as “Les”. [532] He said:

8. [531]

   He then identified each of the five male accused as also being present, including Mr Beale. When he was asked how he knew those men he said:

9. [532]

   He described Mr Fernando, Mr McGrady, Mr Porter and Mr Weatherall as “older boys … in their 40s” and were his older brother’s friends. Notably, he made no reference to Mr Beale.

10. [533]

    He was then asked what brought them down to Sydney to which he replied, “I don’t know, I don’t know, I don’t know what brought them down to Sydney”. [533] He did agree that they were at his place for two or three days “staying like, down the bottom in my shed”. [534] He said that at some point they went and picked up Mr McGrady from “somewhere”. He said:

11. [534]

    Mr Smith then proffered the explanation that “they didn’t actually go to see [the deceased], they went there [to the deceased’s unit] to score drugs off somebody else”. [535] The police did not pursue who “the person” was the others were intending to “score” drugs from. It would appear from an analysis of Mr Smith’s text messages with Ms E Smith that Mr Daniel was involved in some way with the accused, although this was not explored with Mr Daniel in the trial (in fact, there was no cross-examination of him at all). He said that those men (referring to the four accused he knew from Moree) had been “going back and forth [to the deceased’s house] scoring drugs” [536] and that they decided to go over there on 30 December 2019.

12. [535]

    He told police that he was more or less forced to get in the boot of the car by the older boys because they said to him that they were going to “go and grab [his] kids’ stuff … because Stacey had just moved out of her house” and the “kids’ stuff” (including iPads, play stations and scooters) needed to be collected. [537] He went on to say that he did not want to go but was promised drugs if he went with them. He said he had no particular interest in assisting Ms Kelly-Greenup because he was not on good terms with her. He did say, however, that he did want to get his kids’ stuff.

13. [536]

    He also described the deceased’s house as a “drug house”, a matter amply supported by the evidence in the Crown case. He said drugs were sold from there and that other people who also sold drugs from there were “after him” because of what had happened. Again, this appears to be a reference to Mr Daniel.

14. [537]

    He said that en route to the deceased’s unit they stopped at a petrol station (near the deceased’s unit) where he said he jumped out of the car because it was hot and he had a cramp in the back of his leg. [538] He said when he was at the petrol station he did not want to see Ms Kelly-Greenup, as he described it, “sitting up with someone else”. [539] He said he “just didn’t even want to go there”. Later in the interview, [540] he said that he called Ms Kelly-Greenup to see if she was at the unit to arrange collection of his children’s belongings responsive to Ms Kelly-Greenup sending a message to him to come and collect the children’s belongings because people were taking them and selling them. He said that he “should’ve walked the opposite way [from the service station] … but because Lional [McGrady] had popped up” and he had not seen him for ages”, [541] he started walking down with him.

15. [538]

    He went on to say:

16. [539]

    He went on to say:

17. [540]

    He was asked what happened when he got to the deceased’s unit. He gave the following answer:

18. [541]

    He said the children’s belongings included the hover boards which were already in the downstairs garage when he arrived on foot. This would appear to be consistenet with Mr Olla’s evidence. At that time, he said the others were “already throwing stuff in the car”. He said later that he went into the deceased’s unit and “had a yarn with him” [544] and was given a drink (a glass of Coke). He said, “Everything was all sweet”. He said he asked Ms Kelly-Greenup for “a bong”. He said that after everyone had “gotten on … got their drugs” [545] he went downstairs.

19. [542]

    He later told police that he was also smoking ice inside the unit and downstairs when he was smoking ice in a pipe with Ms Kelly-Greenup and Ms Sampson. He said, “All of a sudden, it just escalated”. He said, “when [Mr Fernando] asked the girls what had happened … [Mr Fernando] made that decision himself. Nobody else had even thought of anything like that”. [546]

20. [543]

    He said later in the interview [547] that Mr Fernando hit the deceased, that he went over and hit him with what he thought was a stick but he “didn’t really see it happen” because it happened behind “the car”. He said he did not know how the deceased ended up downstairs (or why he left the unit).

21. [544]

    Later still, towards the very end of the interview, when he was being pressed about what he was able to see of the assault on the deceased, he said he did not see Mr Fernando actually hit the deceased. He said he thought he picked up a lump of wood (like a bed slat) as he walked over to the deceased and that he saw that piece of wood in the car afterwards. He said that the deceased called out to him for help. He said he went to the deceased and tried to carry him under his armpit toward the stairwell but that he was being yelled out by Mr Fernando to get into the car. He said the deceased had blood running down his face but he did not know where it was coming from because he did not see him get hit. He said that other people then came running out of the units as he was being yelled at to get in the car. This would appear to be consistent with Ms Mohammed’s observations of seeing a man trying various doors of the car before it left. Although she said that man was left behind, that observation may be infected by her angle of view and the vagaries of eyewitness testimony.

22. [545]

    Mr Smith said nothing was said in the car when they left. He told police initially that he thought he was dropped at home but then he corrected that and said they dropped him off at Westmead station. He then corrected himself again and said he asked to be taken to his cousin’s place to pick up his children after which Mr Fernando dropped him home. Each of these explanations is inconsistent with CCTV footage of him at the Pendle Inn to which I have already referred extensively.

23. [546]

    Mr Smith was then shown a still photograph of Mr Beale and Mr Porter in his company at the D & J Mixed Business. He had difficulty identifying Mr Beale at first but then identified him by name. He said they were at the shop buying single smokes. He was also shown a photograph of the white Commodore parked outside his house close to the Mixed Business and the same vehicle at the Enhanced Petroleum service station at 3:18pm. He identified each of the accused from still photographs from the CCTV footage.

24. [547]

    He was then shown the still photographs from the CCTV footage of Mr Beale, Mr Porter and Mr Weatherall getting out of the Commodore at Gilba Road at around 4pm. He said Mr Fernando told the three men to get out after which Mr Fernando drove back to the deceased’s unit. He said they did not go all the way back in, just into the driveway, at which point Mr Fernando directed Ms Kelly-Greenup and Ms Sampson to get into the car. He said they did not get into the car. He said that Mr Fernando said he would come back and pick them up and that he was then taken with the other “boys” to Westmead station. [548] That would appear to be consistent with some of the text messages sent by Mr Smith to Ms Kelly-Greenup and the reference to “Les”.

25. [548]

    Police then showed him still photographs taken inside the Pendle Inn at around 4:20pm. He said they went there to pick up Ms Kelly-Greenup and Ms Sampson because Ms Kelly-Greenup had rung him. He said:

26. [549]

    He said Ms Kelly-Greenup was “freaking out” but that she asked him to leave her alone and go home.

27. [550]

    At the conclusion of the interview (which had been in progress for 2½ hours) he denied, when it was put to him, that he assaulted the deceased or that he asked anyone to assault the deceased. His answer in full was as follows:

28. [551]

    I will refer later to that part of her ERISP where he is questioned about his text messages with Ms Kelly-Greenup after 4pm on 30 December 2019.

Mr McGrady’s ERISP

1. [552]

   In the first conversation with local police at Moree, Mr McGrady confirmed that he had come to the police station because “he saw something on the news”. [551] He was cautioned and then proceeded to volunteer that he saw himself, as he described it, “walking in the shop” (clearly a reference to the still photographs of Mr McGrady in the company of the other male accused at the Enhance service station on 30 December 2019 at 3:18pm). He told local police the people he was with included “Les Fernando, Michael Porter and Shane Weatherall”. He signed and dated that photograph.

2. [553]

   The following day, he participated in a formal record of interview (in the form of an ERISP) again conducted by local police at Moree. Mr McGrady again attended that interview voluntarily and participated in the interview following caution. He confirmed his identity and the fact that he was known by the nickname “Hound”. He confirmed his personal circumstances as a resident of Moree where members of his extended family resided. He also confirmed that he was in a relationship with Ms Carr, who lived in Airds, near Campbelltown. He said he was in receipt of Newstart allowance.

3. [554]

   In the formal part of the interview, Mr McGrady again confirmed that he was in the photographs which he had been shown by police the previous day. When asked why he had come to speak to police he said, “My name. Clear me, clear it.” [552] He was then shown some photographs of himself at the Pendle Inn. These photographs were taken from the CCTV footage showing Mr McGrady entering the Pendle Inn at 4:40pm having arrived at the hotel in the white Commodore driven by Mr Fernando and with Mr Smith and were tendered in the trial. [553]

4. [555]

   He said that he was photographed at the Pendle Inn because, “I have me cousin lives up there. I might, might have been went and seen what he if he was in there”. [554] He identified his cousin as Mr Smith. He said he might have been looking for Mr Smith at the Pendle Inn but he could not recall if he saw him that day. When he was asked why he was looking for Mr Smith, he said he was getting a ride home (to Moree) with the other boys and that they were going to pick him up and they were all just going back to Moree. [555]

5. [556]

   He went on to tell police that he had been in Airds visiting his partner and that relations with her were a bit strained and that coincidentally, they (referable to other friends from Moree) were ringing him. He said he didn’t know they were in town but when they turned up, he asked them for a ride back to Moree. He confirmed that they “turned up” at 3:30am on the day he was later photographed with them at the service station.

6. [557]

   He said “the fellas from Moree” came and picked him up (he said they just “blew in”) so he said, “I’ll get me swag and I’ll get a ride home with youse”. [556] He said the fellas from Moree knew his partner and knew her address. He then went onto explain how he had been in Sydney visiting his partner over the previous two weeks having travelled from Moree and arrived in her car with her children and that he had thereafter stayed at her place for a week or two. He said he had not seen any of the “fellas from Moree” in that time. He said the first time was when they arrived at Ms Carr’s home in the early hours of the morning on 30 December 2019.

7. [558]

   He was then asked to tell police about what had happened during the course of that day. He explained that after he was picked up in the early hours of the morning and “grabbed his stuff and chucked it in the car”, he went back (to Ms Carr’s) for a couple of hours and then they came and got him in the daylight but he wasn’t sure of the time. [557]

8. [559]

   He said he was only with “them” prior to going to the Pendle Inn for “about an hour… or a couple of hours”. When he was reminded of the photographs at the Enhance service station, he said he could not nominate where the service station was but said he thought he was at the service station because they were filling up the car ready to travel back to Moree. He thought he had gone straight to the service station after he was picked him up the second time. When he was taken through the chain of events for clarification, he said when they left the petrol station he left in the car.

9. [560]

   He was then asked whether he had any knowledge of why there had been posts to Facebook and why there was an appeal for information about the people depicted in the photographs. He said, “While I just come forward cause, I seen that, and I had nothing to do with, with, with any of it, so that’s why I come forward.” [558] When he was asked what he knew about the murder of the deceased, he said he did not know the deceased and had never seen him before.

10. [561]

    In a series of questions that proceeded from that point in a legitimate form of interrogation by police, Mr McGrady repeated that all he wanted was a ride home. He again repeated that when “the boys” turned up at his partner’s house, he did not know they were coming. When he was asked whether there was any prior phone call, he said he was not sure if there was before they turned up but when they turned up, they were there with him for about 10 or 15 minutes before he went with them to the St George Bank at Campbelltown to use his partner’s card to get some petrol money. He said he used the ATM and withdrew $60 for petrol including $20 for smokes and a drink. He explained he went with them to the bank but then he returned to Ms Carr’s house. He said the other men went somewhere else but they came back to collect him at around 8am or 10am the following morning and that was when he jumped in the car with them to get a ride back to Moree. (I note that this account of his movements in the early hours of 30 December 2019, including the use of the ATM, comprehensively detailed by Mr McGrady in his ERISP was neither confirmed nor contradicted by any evidence adduced by the Crown in its case. I also note that the analysis of phone records and the contact between Mr McGrady’s phone and Mr Fernando’s phone in the early hours of 30 December 2019 tend to support his account, or at least not positively contradict it.

11. [562]

    As the interview progressed and Mr McGrady participated in answering further questions about the type of car he was travelling in and associated matters he said that he was tired (the interview had proceeded to Q600 by this time) and that he wanted to have a rest and come back the following day. He was told that he was not under arrest and that he was free to go but that the police would be “happy” to go through everything in a little more detail when he was “refreshed”. [559]

12. [563]

    The next interview was conducted by officers from the homicide squad on 12 June 2020. Mr McGrady again confirmed that he wanted to be interviewed and confirmed that despite feeling some “pressure” from police, he was willing to participate in a further formal interview.

13. [564]

    He was told by Detective Sergeant Ruskin, the interviewing officer, that police wished to speak to him in relation to what occurred (in connection with the deceased’s murder) but that he was able to stop the interview at any time if he wished.

14. [565]

    He was then told that the deceased was murdered on 30 December 2019 and was asked to recall what he could of that day. He told police he got picked up and he asked “the boys”, in effect, for a ride home. He said he left with them intending to go to Moree but ended up in the city somewhere (he did not know where) and from there went to Mr Smith’s place. He said, “we waited there”. He then gave a very length answer which I set out in full:

15. [566]

    He was then asked what happened after that and he said:

16. [567]

    He said when he was picked up in the Commodore from Ms Carr’s house, there were five or six in the car and they went from there back to Mr Smith’s house. He repeated that when he was first picked up at 3am or 4am on the morning of 30 December 2019, he thought he was going back home to Moree but it was when they came back that he asked them how long they were going to be in town for and when were they going home and it was then that he was told that they were going home at that time so he jumped in with them.

17. [568]

    He said when he was waiting at Mr Smith’s house, he lost track of the time because he was “flying high on the ice” and it was when he went round to what he described as “the other place” where “they had ice” he confirmed he said “we were going to get some more”. [562] He went onto say:

18. [569]

    He said they went to that other place in the white station wagon and that there were five others excluding him. He was not sure if Mr Fernando or Mr Smith was driving but he did know it was Mr Fernando’s car.

19. [570]

    He was asked again by police for his reason for going from Mr Smith’s house to this other house and he confirmed it was to “get some ice…to score”. [564] He then volunteered the following information concerning the stack of house bricks located by crime scene officers, including the two bricks separated from the stack and a third near a pool of the deceased’s blood:

20. [571]

    It was then he told police that he had told them everything he knew but when asked whether he was happy to be asked further questions he said if he was able to answer them he would but he felt that he had told police all that he knew.

21. [572]

    Police then took him to the fight downstairs and asked the following questions:

22. [573]

    He was then asked the direct question as to whether he assaulted the deceased. I set out his responses in full:

23. [574]

    When he was asked in the final part of the interview what was used (by implication to strike at the deceased) he gave the following answers:

24. [575]

    The interview concluded with Mr McGrady confirming the interview was made in the exercise of his decision to speak and that he had not been promised any advantage or offered any advantage or threatened in any way to participate in the interview.

Ms Kelly-Greenup’s ERISP

1. [576]

   Ms Kelly-Greenup was interviewed by police on 30 June 2020 following her arrest. [565]

2. [577]

   Police commenced the interview by inviting Ms Kelly-Greenup’s attention to a number of still photographs of her with Ms Sampson at the Pendle Inn and the Pendle Hill railway station 30 December 2019.

3. [578]

   It was implicit in the questioning that she had left the deceased’s home unit with Ms Sampson to travel on foot to the Pendle Hill railway station, and from there, the Pendle Inn.

4. [579]

   She told police that she was intentionally staying in public view at the Pendle Inn because of concerns about Mr Smith confronting her. She was then shown the still photographs of the white Commodore outside the Pendle Inn, with Mr Smith and another male, who she said she did not know (other evidence establishes this person was Mr McGrady).

5. [580]

   She told police that “they” were trying to get her to go with them and she was resisting. She said at that point she could not see Mr Smith and was resisting getting into a car with a man she did not know.

6. [581]

   She said that shortly after, Mr Smith came into the public bar and tried to make her go with him. She claimed that she said to him, “I came here to get away from you and you came and found me”. [566]

7. [582]

   She said later she got into a taxi and went to Ms Sampson’s house. (Other evidence in the trial confirms Ms Sampson had left the Pendle Inn a short time after Ms Kelly-Greenup and travelled alone to her home).

8. [583]

   Ms Kelly-Greenup volunteered at that point in the interview that she was intent on “clearing her name” with the assertion that if she had anything to do with the deceased’s murder, she would be admitting to that. [567] She claimed that she was an honest person who was brought up to know the difference between right and wrong, and that being involved in the deceased’s murder was inconsistent with the type of person she is.

9. [584]

   She was then shown photographs of (the children’s) hoverboards, which she said she had last seen the day of the incident. She said that they were at the deceased’s place (where she was living) with her belongings.

10. [585]

    She said the hoverboards had cost her a lot of money and she did not want them lying around where people coming and going from the apartment could take the batteries out of them for their own use. She said when Mr Smith had asked her about the children’s belongings, she had said to him, “You can take the hoverboards with you”. [568]

11. [586]

    She was then invited to tell the police everything she could remember of the day of the incident, including her movements, and what was happening at the deceased’s unit. She gave a series of very detailed answers in which she asserted the following facts:

12. [587]

    She repeated that she was fearful of Mr Smith, which is why she went to a public place (the Pendle Inn) after she left the deceased’s house. She claimed not to know how Mr Smith found her. She claimed, “I don’t answer his calls, I don’t want him to know where I am”. [573]

13. [588]

    She explained at various intervals throughout the interview how her relationship with Mr Smith was fractious and volatile, with incidents of domestic violence perpetrated on her.

14. [589]

    I have already reviewed Ms Kelly-Greenup’s account of how she met the deceased and her denials that she had ever complained about being sexually assaulted by the deceased, which I do not repeat. I do propose to include, however, the way in which she denied making allegations or communicating allegations to anyone.

15. [590]

    She denied ever conveying to Mr Smith or anyone associated with him that the deceased had sexually assaulted her. She gave the following evidence:

16. [591]

    When she was asked whether a group of men had come to the house with Mr Smith on the day the deceased was assaulted, Ms Kelly-Greenup said that the only person in the group who arrived at the unit that she knew was Mr Smith. She said when Mr Smith was having a smoke inside the unit “two of the other boys come in … I wouldn’t have a clue what their names are … they were smoking … that was when me and Jeremy [Smith] … had the argument and I’ve asked him to get out. So they’ve left, there was like two boys with him.” [574] They left before Jeremy left because she told Jeremy to leave.

17. [592]

    When it was put to her that five men came in with Mr Smith, she said “No um, that’s news to me like I said. I was in the bathroom. I’ve walked and I’ve gotten Jeremy myself… So if they was with him the five men I would have known that”. [575]

18. [593]

    She went on to say that the two men said, “Well, we’re going … Well see you downstairs.” [576] In effect, she then told Mr Smith to go, and after he left, she went to pack up her belongings. She said the deceased was not at the unit at that time.

19. [594]

    She continued to assert that she left the unit with Ms Sampson because she was fearful of Mr Smith coming back. She repeatedly asserted that the deceased had left the unit by the time she herself left. She said:

20. [595]

    As with my analysis of Ms Smith’s interview, I will refer later to Ms Kelly-Greenup’s response to questions asked of her about text message exchanges with Mr Smith after 4pm on 30 December 2019.

21. [596]

    A significant feature of the circumstantial evidence upon which the Crown relied to prove the guilt of Ms Kelly-Greenup beyond reasonable doubt, comprised what the Crown submitted were deliberate lies she told police in the course of what she knew by June 2020 was an investigation into the deceased’s murder because she was conscious that the truth would implicate her in his murder.

22. [597]

    For a lie to be capable of being taken into account as a piece of circumstantial evidence probative of guilt, I must be satisfied that when Ms Kelly-Greenup was making the statement to the interviewing police that the Crown identifies as a lie, she knew that the statement was untrue.

23. [598]

    There are a number of lies that the Crown submitted satisfied this requirement. The most blatant that she was not in the ground level car park at any time on 30 December 2019 in the company of her co-accused (because she had packed her bags and left with Ms Sampson) and by that time the deceased was not in the downstairs car park or in the unit because he had also left. In the Crown submission, this is a demonstrably untrue statement. It is not only contradicted by Ms Sampson’s evidence and Ms Plasto’s evidence is also objectively contradicted by the movement summary of the CCTV footage, in particular, which shows Ms Kelly-Greenup and Ms Sampson leaving the unit well after 4pm, in fact leaving at a time when the deceased was obviously seriously injured, lying in the internal tiled foyer.

24. [599]

    A further and quite separate lie identified by the Crown is Ms Kelly-Greenup’s assertion that she has never made a complaint of sexual assault nominating the deceased as the assailant. I considered that also to be demonstrably false having regard to the evidence of various Crown witnesses to whom she made that complaint. While it remains the case that none of those witnesses believed her complaint to be true, in fact each of them thought to be a patently untrue whatever her motivations might have been for making a false complaint and irrespective of whether she was in a sober state of mind when she did so.

25. [600]

    However, in order for those deliberately false statements of fact to be probative of Ms Kelly-Greenup’s guilt, two further matters must be proved.

26. [601]

    First, I must be satisfied that the particular lie under consideration relates in a material way to the allegation that Ms Kelly-Greenup was a party to a joint criminal enterprise to assault the deceased and that she is liable for his murder because she foresaw the possibility that one of the men who had attended at the deceased’s unit because of her publicising a complaint of sexual assault would in the course of the assault on the deceased conflict really serious injury with that intention. I am satisfied the lies Ms Kelly-Greenup told police about the events of 30 December 2019 were material in the relevant sense. I am also satisfied that the line Ms Greenup told police concerning the allegation of sexual assault the deceased is also material to the way in which the Crown advanced its case against Ms Kelly-Greenup, namely it was the publication of that complaint to one or more of the male accused (on the Crown case, most likely Mr Smith) was what motivated the formation of the criminal enterprise to assault the deceased in which she was an active participant, in fact on Crown case in which she was a driving force.

27. [602]

    Second, I must be satisfied that the reason Ms Kelly-Greenup told that compact of lies was because she feared that telling the truth would implicate her in the deceased’s murder.

28. [603]

    I am conscious that people do not always act rationally, and that the lies the Crown relies as probative of Ms Kelly-Greenup’s guilt might be open to other explanations. I direct myself that if I am of the view that any of the lies relied upon by the Crown as capable of being considered as probative of her guilt might have been told for some reason other than to avoid being implicated in the deceased’s murder, then I will put that lie to one side and focus my deliberations upon the other aspects of the Crown’s circumstantial evidence case in order to determine whether those facts which I am satisfied are established by the evidence are of such weight as to leave no conclusion open other than that Ms Kelly-Greenup’s guilt is proved beyond reasonable doubt.

29. [604]

    Even if various of the statements Ms Kelly-Greenup made to police are shown to be factually incorrect, a state of affairs which is conceded on her behalf by her counsel, and material as I am satisfied they are, her counsel submitted that having regard to all the evidence in the trial I could not exclude the reasonable possibility that the time of her interview in June 2020 she lied to police to avoid being falsely incriminated in the deceased’s murder (in the sense that she was present when he was assaulted but that she took no part in that assault and had no forewarning of it) including the possibility that she camouflaged the truth perhaps to protect herself from harm from the person (or people) who did faintly assault the deceased.

30. [605]

    In order for that scenario to be reasonably open on the evidence, that is in order for me to consider the reasonable possibility that her lies were not motivated by consciousness of guilt in the way contended for by the Crown but for other motivations, perhaps not all of them obvious or discernible, I cannot avoid making an assessment of the evidence, independent of Ms Kelly-Greenup’s lies that is capable showing her complicity in the deceased’s murder on the basis contended for by the Crown.

31. [606]

    In the circumstances of this case that is a crucial enquiry. I direct myself against the risk of engaging in circular reasoning and in the process elevating the probative weight of the lies Ms Kelly-Greenup has told as capable of supporting the Crown case against her.

Is the joint criminal enterprise proved?

1. [607]

   Strict adherence to the direction by which I am bound where the Crown has elected to try seven accused jointly to ensure that separate consideration is given to the evidence admissible against each accused in determining whether the Crown has proved the guilt of that accused beyond reasonable doubt, it does not follow that a doubt I have about the guilt of one accused leads inexorably, or at all, to a doubt about the guilt of another accused. The case for each accused must be considered separately for its sufficiency in proving guilt beyond reasonable doubt.

2. [608]

   That said, given the way in which the Crown has structured and conducted its case, including where the Crown alleges that it was Mr Smith, in co-operation with Ms Kelly-Greenup, who was likely to have arranged for the attendance of the other five male accused at the deceased’s unit on 30 December 2019 in order that the deceased should be assaulted for his sexual mistreatment of Ms Kelly-Greenup (there being no evidence in the Crown case that anyone other than Mr Smith knew where she was living), if I am not satisfied of Mr Smith’s role in the joint criminal enterprise alleged, that is, if I accept the reasonable possibility arising from his account to police in his ERISP, that he went to the deceased’s unit on the afternoon of 30 December 2019, in part by pre-arrangement with Ms Kelly-Greenup to collect his children’s belongings and to access “ice” and/or cannabis from people at the deceased’s unit, or because some of the other accused he was with had planned a meeting with someone else at the deceased’s unit in connection with drugs, there would need to be evidence admissible against each of the remaining accused (including Ms Kelly-Greenup) capable of supporting proof of the motive which, according to the Crown, was the sole motive which inspired their agreement to assault the deceased and to cause him harm, before considering whether their liability for the deceased’s murder on the basis of an extended joint criminal enterprise is established.

3. [609]

   It was not in issue that at around 3pm on 27 December 2019, Mr Fernando, Mr Porter and Mr Weatherall left Moree in Mr Fernando’s white Holden Commodore to travel to Sydney, arriving in the early hours of the following day.

4. [610]

   The question is whether I am satisfied that those three accused left Moree together having formed an agreement by that date (with at least Mr Smith and Ms Kelly-Greenup who were both in Sydney) that the deceased should be assaulted in retribution or in retaliation at what each of those four male accused had been led to believe by Ms Kelly-Greenup was the deceased’s sexual assault of her. A further question that arises is whether at some time after Mr Fernando, Mr Porter and Mr Weatherall arrived in Sydney on 28 December 2019, Mr Beale and Mr McGrady joined the joint criminal enterprise to assault the deceased such as to explain the six male accused travelling together to the deceased’s unit on the afternoon of 30 December 2019 where Ms Kelly-Greenup was, on the Crown case, awaiting their arrival.

5. [611]

   Although it is the Crown case that the sexual assault allegation was in fact unfounded, the Crown case was predicated on the basis that the six male accused believed the allegations to be true and it was that belief that was foundational to the joint criminal enterprise in which they were each intentional participants, a belief that continued up to and including the time of the assault. Although the Crown made no submission as to why Ms Kelly-Greenup would make false allegations of sexual assault against a person who had accommodated her in his home, the evidence adduced at the trial suggested that she was in a drug addled state when making the allegations and that she had retained a fixed but entirely false memory of being assaulted, leading her to not only be a party to a joint criminal enterprise to assault the deceased, but the inspiration behind it.

6. [612]

   While there is clear evidence that Ms Kelly-Greenup repeatedly made false allegations of sexual assault to visitors in the unit in the weeks before 30 December 2019, I have already noted there was no direct evidence in the Crown case against each of Mr Fernando, Mr Beale, Mr McGrady, Mr Porter or Mr Weatherall to establish they had any knowledge of Ms Kelly-Greenup’s allegations or that she had complained to them directly that she had been mistreated in that way.

7. [613]

   Additionally, there is nothing in the telephone data which I have reviewed (but as to which I received no submissions from the parties) that allows me to draw the inference that Ms Kelly-Greenup made the same complaint to any one of the accused with whom she had some association (that is excluding Mr Beale with whom she had no proven association at all), including by Facebook. There was no evidence adduced to suggest that the allegation of sexual assault was published by Ms Kelly-Greenup on that social media site.

8. [614]

   Although there were a number of text messages passing between Ms Kelly-Greenup and Mr Fernando prior to 30 December 2019, I cannot, from that fact, safely draw the inference that she was communicating with him about being sexually assaulted, and even less so that he undertook to drive from Moree with Mr Porter and Mr Weatherall to assault the deceased because she had told him she had been sexually assaulted, I accept that by reason of her contact with Mr Fernando, she had the opportunity to do so, but the evidence goes no higher than that.

9. [615]

   It is also significant, in my view, that there was no evidence adduced in the Crown case that at the time that Ms Kelly-Greenup was repeatedly making allegations of sexual assault to various visitors to the deceased’s unit that she suggested to any of them that the deceased should be punished for assaulting her, and no evidence of any kind suggesting that she intimated that her friends from Moree or her former partner should or would punish him on her behalf, or that she threatened retribution or retaliation of any kind.

10. [616]

    Of the accused, only Mr Smith admitted (in his ERISP) to knowing of the allegation and only then having heard rumours to that effect which, he told police he ignored, given the breakdown in his relationship with Ms Kelly-Greenup left him indifferent to whether or not they were true. Mr Smith did not identify the source of the rumours and was not asked by police to identify them.

11. [617]

    Mr Smith did tell police that he heard Mr Fernando raise the issue of the “rape allegation” with Ms Kelly-Greenup and Ms Sampson in the carpark area and that upon either or both of the women confirming the deceased had assaulted one or both of them, Mr Fernando launched an attack on the deceased. However, as I have been at pains to emphasise, that account is only admissible against Mr Smith and only then if I am satisfied it constitutes an admission (as defined in the Evidence Act) probative of his participation in a joint criminal enterprise of the scope and nature contended for by the Crown.

12. [618]

    Ms Kelly-Greenup (in her ERISP) denied ever being sexually assaulted by the deceased and denied ever making an allegation of that kind. Although I reject that denial as untrue, that fact adds nothing to the Crown case against the other accused, whatever else it might indicate about Ms Kelly-Greenup’s claim to interviewing police that she was an honest person, [577] and the weight I am prepared to give to her ERISP generally in raising a reasonable doubt about her guilt.

13. [619]

    Mr McGrady was not asked about the rape allegation at all when he was interviewed by police.

The significant of the text messages between Mr Smith and Ms Kelly-Greenup on 30 and 31 December 2019

1. [620]

   The text messages between Mr Smith and Ms Greenup after the assault on 30 December 2019 and over successive days were relied upon by the Crown in the case against both accused as evidence capable of revealing the fact that the assault on the deceased was in fact the subject of preconcert between them, that is, as evidence of the joint criminal enterprise of the nature and scope contended for by the Crown. As I have already noted, this evidence is only admissible in the case the Crown seeks to make against those two accused.

2. [621]

   At 4:13:42pm on 30 December 2019 (that is, after the assault and after Ms Kelly-Greenup had left the deceased’s unit with Ms Sampson), Mr Smith sent the following text message to her:

3. [622]

   At 1:21pm on 31 December 2019 (that is, on the afternoon of the following day), Mr Smith sent the following text message to Ms Kelly-Greenup in response to her concerns about Mr Daniel’s reaction to what had occurred at the unit:

4. [623]

   Two minutes later, at 1:23pm, Mr Smith sent a further message to Ms Kelly-Greenup:

5. [624]

   The “him” in that message was clearly a reference to Mr Daniel. The Crown relied upon Mr Smith’s repeated reference to “it” or “that” being “a warning” as evidence that Mr Smith had arranged for the deceased to be assaulted by the accused, that the plan had been carried out and that the deceased should consider himself “warned” against any repetition of his sexual mistreatment of Ms Kelly-Greenup.

6. [625]

   In Ms Greenup’s ERISP, she told police the message was in relation to a big argument they had she had with Mr Smith where they both “took off” from the deceased’s unit. [582] She told police that the “warning” was Mr Smith telling her to get out of the deceased’s unit as he was “going to do something to [her] for staying there”. [583] Mr Smith denied he was the person who sent any of the text message to Ms Kelly-Greenup.

30 December 2019

1. [626]

   At 4:15:00pm (that is, within minutes of the first “warning” text message, Mr Smith sent the following text message to Ms Kelly-Greenup:

2. [627]

   At 4:18:48pm, Mr Weatherall’s phone service sent the following text message to Ms Kelly-Greenup:

3. [628]

   At 4:20:48pm, Mr Smith sent the following text message to Ms Kelly-Greenup:

4. [629]

   In Ms Greenup’s ERISP, she said she did not know Les. [587]

5. [630]

   At 4:22:10pm, Ms Kelly-Greenup sent the following text message to Mr Smith:

6. [631]

   In Ms Greenup’s ERISP, she said that she believed police were travelling to the deceased’s unit because of the big argument she had with Mr Smith, which she described as a “DV”. [589] She told police that Ms Sampson had asked her to tell Mr Smith to give them a lift. [590]

7. [632]

   At 4:23:41pm, Ms Kelly-Greenup sent the following text message to Mr Smith:

8. [633]

   At 4:24:02pm, Mr Smith sent the following text message to Ms Kelly-Greenup:

9. [634]

   In the Crown’s submission, these messages reflect Mr Smith’s knowledge that he had left Ms Kelly-Greenup at the unit after their planned assault on the deceased had been carried out and his plans to collect her, again as evidence of their joint participation in the joint criminal enterprise.

10. [635]

    At 4:48:57pm, Mr Smith sent the following text message to Ms Kelly-Greenup:

11. [636]

    At 6:05pm, Ms Kelly-Greenup sent the following SMS message to Mr Daniel:

12. [637]

    Ms Kelly-Greenup was taken to this message by the interviewing police. [595] Her explanation for its content and, indeed, why she was sending it and why Mr Smith wanted Mr Daniel’s number, was difficult to understand and even more difficult to ally with the Crown case other than as an indication that Ms Kelly-Greenup was aware the deceased had been assaulted (which she denied). At times she claimed it was a reference to Mr Smith planning to kill her and at other times, the person who was to have been “found” was Mr Daniel or someone called “Abz” about whom there was no evidence.

13. [638]

    At 6:55pm, Mr Smith sent the following SMS message to Ms Kelly-Greenup:

14. [639]

    At 6:57pm, Ms Kelly-Greenup sent the following SMS message to Mr Smith:

15. [640]

    At 6:59pm, Ms Kelly-Greenup sent the following SMS message to Mr Daniel:

16. [641]

    It was never made clear why Mr Smith was concerned that Mr Daniel might do something to harm her children.

17. [642]

    At 9:10pm, Mr Smith sent the following SMS message to Ms Kelly-Greenup:

18. [643]

    The Crown relied upon this message as evidence of Mr Smith’s dominant leading or initiating role in the joint criminal enterprise to assault the deceased and that he had taken that role on behalf of Ms Kelly-Greenup as the mother of his children.

19. [644]

    Ms Kelly-Greenup told police in her ERISP that this was an example of Mr Smith’s intimidation. [600] Mr Smith claimed the message was not sent by him despite what are the obvious first person references and the clear reference to his children and him having moral judgments on Ms Kelly-Greenup.

31 December 2019

1. [645]

   At 1:19pm, Ms Kelly-Greenup sent the following SMS message to Mr Smith:

2. [646]

   In Mr Smith’s ERISP, he agreed that Ms Kelly-Greenup was blaming him for what occurred but said that was because “she got nobody else to blame. No other phone number to message. She doesn’t have them other guy’s phones to message,” [602] apparently a reference to some of the other male accused.

3. [647]

   In Ms Kelly-Greenup’s ERISP, she said she sent the message to Mr Smith because she was “getting threats from people saying that [she’s] done something…when [she] wasn’t even there”. [603] Ms Kelly-Greenup told police she did not know what Mr Smith did after she left the deceased’s unit and that that was the reason why she sent those messages to him. [604]

4. [648]

   In Mr Smith’s ERISP, he said he did not know what the message meant. [605] Mr Smith denied that Mr Daniel jumped off the balcony and insisted that he walked out the unit with Ms Joukhador and Ms Sampson. [606]

5. [649]

   At 1:33pm, Mr Smith sent the following SMS message to Ms Kelly-Greenup:

6. [650]

   At 2:49pm, Ms Kelly-Greenup sent the following SMS message to Mr Smith:

7. [651]

   At 3:04pm, Mr Smith sent the following SMS message to Ms Kelly-Greenup:

8. [652]

   In Ms Kelly-Greenup’s ERISP, she said she could not explain the context and that his threats towards her were “nothing new”. [610] She told police she did not know who Mr Smith was referring to when he said his “big brothers will go to war”. [611]

9. [653]

   At 3:09pm, Mr Smith sent the following SMS message to Ms Kelly-Greenup:

10. [654]

    At 3:26pm, Mr Smith sent the following SMS message to Ms Kelly-Greenup:

11. [655]

    At 3:59pm, Mr Smith sent the following SMS message to Ms Kelly-Greenup:

4 January 2020

1. [656]

   At 12:53pm, Mr Smith sent the following SMS message to Ms Kelly-Greenup:

2. [657]

   At 12:54pm, Ms Kelly-Greenup sent the following SMS message to Mr Smith:

3. [658]

   At 12:55pm, Mr Smith sent the following SMS message to Ms Kelly-Greenup:

4. [659]

   At 12:56:04pm, Ms Kelly-Greenup sent the following SMS message to Mr Smith:

5. [660]

   At 12:56:13pm, Mr Smith sent the following SMS message to Ms Kelly-Greenup:

6. [661]

   At 12:56:19pm, Ms Kelly-Greenup sent the following SMS message to Mr Smith:

7. [662]

   In Mr Smith’s ERISP, he said he did not know what the message from Ms Kelly-Greenup meant. [620]

8. [663]

   In Mr Smith’s ERISP, he denied having access to the number ending in ‘701 and said it was someone else who had sent those SMS messages.

9. [664]

   The text messages are rich with vernacular, street references and an intimate, if abusive and vitriolic dialogue between Mr Smith and Ms Kelly-Greenup. The meaning of many of the messages is opaque and in many respects suggestive of a state of conflict between Mr Smith and some of the other male accused, and between Mr Smith and Mr Daniel and equally as suggestive of a simmering dispute between Mr Smith and Ms Kelly-Greenup of untold proportion that predated 30 December 2019 and extended well beyond that date. In all the circumstances, although there are admissions Ms Kelly-Greenup makes about her knowledge of the assault which contradicts her denials to police in her ERISP, I am unable to discern from anything she says to Mr Smith (or anything he says to her) support for the Crown case that they were acting in concert with each other and the other male accused to assault the deceased. In fact, the rancour and animosity in their relationship at this time, as evidenced by this body of evidence, operates to undermine the central tenet of the Crown case that Mr Smith would rally others to defend her.

10. [665]

    I am ultimately of the view that the text messages are of insufficient weight to resolve the facts in issue in the trial in the case the Crown makes against Mr Smith or Ms Kelly-Greenup as members of a joint criminal enterprise to assault the deceased and an unsafe basis upon which to draw the adverse inferences contended for by the Crown.

11. [666]

    In the result, in my assessment there is a paucity of evidence admissible against any of the accused to support the sexual assault allegations as a defining feature of the scope and nature of the joint criminal enterprise alleged by the Crown. Additionally, having reviewed extensively the available evidence as to what actually happened in the 30 minutes the accused were together, either in the deceased’s unit or in the carpark on 30 December 2019, including the observed behaviour of the accused at that time, behaviour which, consistent with using drugs on offer, might also include awaiting the delivery of other drugs, I am left in doubt as to whether the Crown has proved their attendance, either individually or as a group, was co-ordinated with Ms Kelly-Greenup in the execution of the joint criminal enterprise alleged by the Crown and fundamental to proof of the Crown case.

What is the ultimate weight of Ms Sampson's evidence?

1. [667]

   In his closing address, the Crown prosecutor submitted that Ms Sampson was being untruthful and deliberately avoidant in giving her evidence. Although the Crown did not develop that submission, even were I to accept it, in the absence of other evidence to prove that she gave deliberately untruthful evidence about matters that must have been within her knowledge, that is, in the absence of any direct evidence, that there was an assault by five of the accused on the deceased (two with weapons, which is the Crown case theory), the Crown’s challenge to Ms Sampson’s credibility does not advance proof of the Crown case.

2. [668]

   While I have grave suspicions that Ms Sampson saw more of the assault than what she was willing, or perhaps able to give reliable evidence about, that does not allow me to find as a fact that there was an assault on the deceased in which each of Mr Fernando, Mr Beale, Mr McGrady, Mr Porter and Mr Weatherall were engaged, or that Ms Kelly-Greenup and Mr Smith were looking on as the assault was launched, and that Ms Sampson witnessed that assault.

3. [669]

   In my view, after the need to consider Ms Sampson’s evidence and the weight to be accorded to it with caution for the reasons I have articulated, beyond the fact that each of the accused was generally located in the carpark area of the deceased’s unit block at the time of the assault (a fact which I do accept from the movements of the white Commodore captured on CCTV footage between 3:21pm at the Enhance service station and 3:58pm as it left the deceased’s unit, that is, I do not accept counsel for Mr Beale’s analysis that he might not have been present) her evidence did little to advance proof of the Crown case against any of the accused.

4. [670]

   In the result, and even accepting that Ms Kol and Ms Mohammed heard multiple raised voices and the sounds of a commotion (sounds which I accept must be attributable to the assault on the deceased and at least suggestive of multiple participants, although not conclusive of that fact) the Crown case that I would be satisfied that the deceased was set upon by multiple assailants with at least two wielding weapons (with each of the seven accused either present and/or participating in that assault) is not sufficiently supported by the evidence (including the forensic evidence which I have reviewed extensively) to allow for that finding of fact to be made.

5. [671]

   While I am satisfied that the deceased died as a result of the intentional infliction of grievous bodily harm, and while I accept that the evidence in the Crown case against Mr Smith identifies the person who inflicted that fatal injury, that fact is not available to the Crown in proof of the guilt of that accused or any of the remaining accused in this trial.

6. [672]

   In addition, because I am prepared to accept Mr Smith’s account to police as raising a hypothesis consistent with his innocence that the Crown cannot negative, the identity of the accused who inflicted the fatal injury remains simply an assertion by Mr Smith.

7. [673]

   I should also make clear that I also regard Mr McGrady’s account to police as also raising a hypothesis consistent with his innocence that the Crown cannot negative. In coming to that conclusion, I note his account, whilst not entirely coincident with Mr Smith’s account to police, is strongly suggestive of a single assailant inflicting the fatal injury in an assault that was not the subject of any preconcert but a unilateral attack of considerable ferocity.

8. [674]

   Although Ms Kelly-Greenup’s ERISP is infected with lies, I am not prepared, in all the circumstances, to treat those lies, despite being deliberate and material, as a circumstance probative of her guilt. Her motivations in lying to police are simply too difficult to confidently decipher or to attribute to her as reflecting a consciousness of her guilt for the deceased’s murder in the way contended for by the Crown.

Conclusion

1. [675]

   In conclusion, having undertaken my own analysis of the evidence the Crown relies upon in support of its case against each of the accused, and having identified in the course of that analysis what I consider to be persisting and unresolved issues of fact fundamental to proof of the elements of the offence of murder in this trial according to the principles of extended joint criminal enterprise as I have identified them at the outset of my reasons, I am unpersuaded that the Crown case that each of the accused is guilty of murder is sufficiently supported by the evidence to leave no room for a reasonable doubt as to their guilt.

2. [676]

   Accordingly, on the charge that on 30 December 2019 at Girraween, each of Mr Leslie David Fernando, Mr David Richard Beale, Ms Stacey Kelly-Greenup, Mr Lional Charles McGrady, Mr Michael Thomas Porter, Mr Jeremy Owen James Smith and Mr Shane Keith Weatherall, murdered Mr Vergel Velasquez, I find each of the accused not guilty.