R v Stephen; R v Tadrosse (No 5)

1. [1]

   In the early hours of 29 April 2020, an intruder entered the Cherrybrook home of 86-year-old Kalim Saliba and his 83-year-old wife Shahidy Saliba. Despite the late hour, the elderly couple were watching television in a rumpus room off their garage on the lower ground floor. A glass panel on their front door was broken to gain entry. The intruder wore a balaclava. During a confrontation between the intruder and Mr and Mrs Saliba, both of them were struck with some form of weapon, the nature of which was the subject of varying descriptions. Mr Saliba died from head injuries caused by blunt force trauma. Mrs Saliba survived and is the only eyewitness to the assault on her husband and herself.

2. [2]

   The Crown case is that both Danny Stephen (the Salibas’ great nephew) and Tony Tadrosse (the Salibas’ nephew) are criminally responsible for the murder of Mr Saliba (contrary to s 18(1)(a) of the Crimes Act 1900 (NSW)) (Count 1) and the assault with intent to rob of Mrs Saliba with wounding whilst being armed (contrary to s 98 of the Crimes Act) (Count 2).

3. [3]

   The joint trial commenced before me and a jury on Monday 28 July 2025. Prior to the close of the Crown case on Friday 15 August 2025, Mr Prince of counsel, on behalf of Mr Stephen, and Ms Avenell SC, on behalf of Mr Tadrosse, both foreshadowed that an application for a directed verdict of not guilty on all counts would be made at the close of the Crown case.

4. [4]

   When the Crown case closed on Friday 15 August 2025, I sent the jury home until Tuesday 19 August 2025 and stood the submissions on the “no case” applications over until Monday 18 August 2025. After hearing the applications, I stood the matter over to Wednesday 20 August 2025 for judgment.

5. [5]

   The Crown case is circumstantial. On the Crown case, there were two men involved: one was the intruder and the other was the driver who waited in the car about 250m away. I shall refer to these two men at various times as either Male 1 and Male 2, or the intruder and the driver. Although the Crown case is capable of establishing beyond reasonable doubt that one or the other of Mr Stephen or Mr Tadrosse must have been the intruder (and the other of them the driver), none of the evidence points to either of them as being more likely to be the intruder. The significance of this is that neither man could be charged with murder as the principal offender.

6. [6]

   Given the lack of evidence as to who as between these two men killed Mr Saliba and wounded Mrs Saliba, the case was brought against both men based on principles of extended joint criminal enterprise. Although application was made prior to the commencement of the trial that the Crown not be permitted to bring its case in this way, on 25 July 2025 I ruled that this course was open to the Crown: R v Stephen; R v Tadrosse (No 4) [2025] NSWSC 824. At [113] of that decision I suggested the elements the Crown must prove beyond reasonable doubt for the murder count are:

   1. (1)

      That Mr Tadrosse and Mr Stephen entered an agreement to assault the occupants of the house (that is, to cause them to apprehend immediate and unlawful violence) with intent to rob them of money or other valuable property, while being armed with an offensive weapon or instrument;

   2. (2)

      That each of Mr Tadrosse and Mr Stephen participated in that agreed crime;

   3. (3)

      That either Mr Tadrosse or Mr Stephen intentionally inflicted grievous bodily harm or intentionally killed Mr Saliba (the incidental crime);

   4. (4)

      That although the commission of the incidental crime by Mr Stephen or Mr Tadrosse was not within the scope of the agreement, it was contemplated by the other of them as a reasonable possibility that it might be committed by the other of them and that offender continued to participate in the agreement; and

   5. (5)

      If the jury is not satisfied beyond reasonable doubt of (3) then both accused must be acquitted. That is because unless the jury is satisfied beyond reasonable doubt that Mr Saliba was killed by one of them, the other cannot be guilty on the basis that he contemplated as a reasonable possibility that it might be committed and continued to participate in the agreement.

7. [7]

   Prior to the trial commencing there was some anticipated evidence to suggest that two offenders may have entered the premises. At the end of the Crown case, the evidence was that only one offender entered the house and, inferentially, the other offender stayed with the motor vehicle in which they left the scene.

8. [8]

   In the Crown case statement amended on 28 July 2025 (MFI 3) the Crown put its case in this way at [6]:

9. [9]

   Consistent with this, the Crown prosecutor opened to the jury in this way on 28 July 2025:

10. [10]

    Finally, the Crown prosecutor also put to the jury the prospect of alternative verdicts as follows: [2]

11. [11]

    As can be seen, the central plank of the Crown case that both accused are criminally liable for these serious offences is the contention that Mr Tadrosse and Mr Stephen entered an agreement to break and enter the premises, not simply with an intention to steal but, rather, with an intention to assault the occupants of the house (that is, to cause them to apprehend immediate and unlawful violence) with intent to rob them of money or other valuable property, while being armed with an offensive weapon or instrument. That is the way the case was opened to the jury and proof of those elements beyond reasonable doubt is necessary to render both accused liable for the offences. Another necessary element to establish beyond reasonable doubt is that the offender who remained in the vehicle foresaw the possibility that the offender who entered the house armed with the offensive weapon might assault one or both of the occupants with an intention to either kill one or both of them or intentionally inflict grievous bodily harm on one or both of them.

12. [12]

    At the close of the Crown case, the applicants contended that, taken at its highest, the prosecution evidence cannot establish beyond reasonable doubt that the agreement between the two accused included that the victims would be assaulted with intent to rob them whilst armed with an offensive weapon or instrument and, flowing from that, the prosecution evidence cannot establish beyond reasonable doubt that the accused who did not enter the premises, whoever he was, contemplated that the intruder would intentionally kill or inflict grievous bodily harm on Mr Saliba and/or wound Mrs Saliba.

13. [13]

    A significant amount of evidence was adduced in the Crown’s circumstantial case capable of establishing beyond reasonable doubt that the two accused had planned to break and enter the premises of the Salibas with an intention to steal. That evidence included, predominantly, telephone records and CCTV evidence depicting motor vehicles similar in appearance to those associated with Mr Stephen. I will summarise some of that evidence below. In fact, for the purpose of the no case applications both Mr Stephen and Mr Tadrosse accepted that the evidence was capable of establishing that they had planned to break, enter and steal from the premises; it is the extent to which the evidence adduced by the Crown is capable of proving anything beyond that that is the issue for determination in these applications.

14. [14]

    Before turning to consider what evidence exists capable of establishing the scope of the agreement between the two accused, it is relevant to note that despite the painstaking efforts of police this is a case where, at the end of the Crown case, the following is common ground:

    1. (1)

       There was no DNA evidence left at the scene (besides that of the victims);

    2. (2)

       There was no fingerprint evidence left at the scene;

    3. (3)

       There was no identification evidence left at the scene;

    4. (4)

       There was no CCTV evidence depicting either of the accused entering or leaving the premises;

    5. (5)

       There was no CCTV evidence depicting who was the driver of the vehicle said to have been used in the offence;

    6. (6)

       There was no evidence of messages between the accused, encrypted or otherwise, discussing the offence either before or after the offence;

    7. (7)

       Despite telephone intercepts being lawfully installed, there was no discussion of the offence by either of the accused ever heard or recorded;

    8. (8)

       Despite surveillance device warrants being installed, there was no evidence of any discussion of the offence by either of the accused;

    9. (9)

       There were no admissions made by either accused to anybody else;

    10. (10)

        There was no third offender who might have been in a position to implicate these two accused;

    11. (11)

        The murder weapon has never been identified or located; and

    12. (12)

        There was no evidence, CCTV or otherwise, of either of the accused attempting to purchase any weapon prior to the offences.

15. [15]

    The only eyewitness was Mrs Saliba. She was 88 years old when she gave evidence. She gave that evidence from her home by way of audio visual link with the aid of an Arabic interpreter. I shall return to consider her evidence in some detail later in these reasons.

Relevant principles

1. [16]

   Before turning to consider the evidence and the submissions, it is relevant to have regard to the principles applicable to applications such as these.

2. [17]

   The relevant principles are well settled. In Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51 the High Court observed at 212 that there was:

3. [18]

   The Court went on to observe at 214-215:

4. [19]

   In R v R (1989) 18 NSWLR 74; 44 A Crim R 404, Gleeson CJ approved the following statement of principle in Attorney-General's Reference (No 1 of 1983) [1983] 2 VR 410 at 415-416:

5. [20]

   In JMR v R (1991) 57 A Crim R 39 at 44, Lee CJ at CL (Carruthers and Finlay JJ agreeing) accepted that R v R was authority for the proposition that a judge may not direct an acquittal in a case dependent upon circumstantial evidence:

6. [21]

   In R v Bilick and Starke (1984) 36 SASR 321; 11 A Crim R 452, the Court was concerned with a no case application in respect of a circumstantial case. King CJ stated at 337:

7. [22]

   His Honour went on to articulate that the question to be asked is as follows:

8. [23]

   The NSW Court of Criminal Appeal (Beazley P, Hall and Campbell JJ agreeing) in R v XHR [2012] NSWCCA 247 at [11] approved the passage from R v Bilick and Starke set out at [21] above.

9. [24]

   In the Victorian decision in Attorney-General’s Reference (No 1 of 1983), referred to at [19] above, it was submitted at the close of the Crown case that there was no case to answer. The trial judge found that there were “countervailing inferences which are capable of being drawn from the evidence, and with at least an equal degree of probability”. The Attorney-General referred two questions of law to the Court of Appeal, one of which is pertinent. The Court of Appeal stated (at 414):

10. [25]

    In R v PL [2012] NSWCCA 31, Bathurst CJ, with whom Simpson J (as her Honour then was) and Adamson J agreed, confirmed that in a circumstantial case a judge cannot enter a verdict of acquittal if there is evidence in support of the Crown case on which the accused could be convicted, even though a reasonable hypothesis consistent with innocence can be formulated (at [32]). It was held that the trial judge in that matter had erred by undertaking an evaluation of the weight of the evidence as distinct from considering whether, taken at its highest, it could support a verdict of guilty. Furthermore, the trial judge erred by reaching his conclusion after evaluating the alternative hypothesis open to the jury.

11. [26]

    More recently, in The Queen v A2, Magennis & Vaziri (2019) 269 CLR 507; [2019] HCA 35 Kiefel CJ and Keane J explained the application of “the Doney test” in the following passage (with references omitted):

12. [27]

    Senior counsel for Mr Tadrosse also relied on the decisions in Regina v H Kalache [1999] NSWSC 556; R v Nikolovski (No 2) [2017] NSWSC 1451; R v Pham; R v Nguyen; R v Trinh [2019] NSWSC 1539; R v Davis and Quinn (No 4) [2020] NSWSC 1800 and R v Cage; R v Lowcock; R v Stamp (No 2) [2024] NSWSC 221. These decisions concerned cases where directed acquittals had been ordered in joint criminal enterprise cases.

13. [28]

    With these principles in mind, I turn to consider the question of whether the evidence, taken at its highest, could support a verdict of guilty for murder of Mr Saliba and/or assault with intent to rob Mrs Saliba whilst being armed against Mr Stephen and Mr Tadrosse. I shall first provide a summary of the evidence relevant to the applications before turning to consider the submissions.

14. [29]

    Mr Tadrosse and Mr Stephen are part of Mr and Mrs Saliba’s large extended family. [3] Tony Tadrosse is the son of George Tadrosse, Mrs Saliba’s older brother. Mr Tadrosse is the Salibas’ nephew. Danny Stephen’s mother, Maria Stephen, is the daughter of Mrs Saliba’s brother Harry Tadrosse. Mr Stephen is the Salibas’ great-nephew. However, the evidence shows that both accused were not close with the Salibas and did not associate with them much. [4]

15. [30]

    In April 2020, Mrs Saliba suffered from a number of physical health issues and Mr Saliba was her primary carer. Mr Saliba was in overall good health for his age. [5] The Salibas’ son, Raymond Saliba, gave evidence that his parents did not have any enemies and he could not think of anyone who would want to harm them. [6]

16. [31]

    Mr Tadrosse was 56 years old and Mr Stephen was 30 years old at the time of the offence. Financial records of the accused’s bank accounts show that they were in some financial difficulty at the time. Mr Stephens had $247.59 in his primary bank account and owed over $3,000 on his credit card. Mr Tadrosse had $155.35 in his bank account on 28 April 2020. On the Crown case, this establishes their motive. [7]

17. [32]

    The Salibas used to run a successful orchard and fruit and vegetable business. [8] As their family members stated, they used to deal primarily in cash and did not use credit cards. [9] It was known by their immediate family members that the Salibas kept cash in a safe in their garage. [10] At the time of the offence, this safe contained $52,030.

18. [33]

    Chantel Saliba, the daughter of Raymond Saliba and granddaughter of the Salibas, was one of the family members who knew that her grandparents kept money in the safe. [11] She would often assist her grandparents in storing cash in the safe. She had also told her “close circle of friends” about her practice of dropping off money at her grandparents’ house. [12] She had earlier been friends with Mr Stephen. [13]

19. [34]

    The Salibas had been living at 54 Tallowwood Avenue for 35 years. [14] There was evidence that Mr Stephen had visited the Salibas’ residence when he was younger and that Mrs Saliba had offered him Caramello Koalas. [15] There were three levels of the premises. The bedrooms were upstairs. The living room, dining room and kitchen were on the ground level and there was a rumpus room downstairs off the garage.

20. [35]

    The Crown case is that only someone who had knowledge of the Salibas would know that they kept money at their home. It is the Crown case that Mr Tadrosse and Mr Stephen knew Mr and Mrs Saliba were the residents of 54 Tallowwood and that they kept large amounts of money in a safe in the house.

21. [36]

    Dylan Saliba, the grandson of the Salibas, visited his grandparents at 54 Tallowwood Avenue in the evening of 28 April 2020. He left around 7:10pm. [16]

22. [37]

    Mr and Mrs Saliba spent the rest of the night watching television in the downstairs living or rumpus room. [17] This was the only room in the house in which the lights were switched on. [18] The sliding door between the rumpus room and the garage and the door between the laundry and the rumpus room were closed. [19] The television was playing at volume 30. [20]

23. [38]

    The evidence called at trial was that the lights from the rumpus room could not be observed from the street after dark. In his statement dated 30 April 2020, John Saliba stated that:

24. [39]

    There was also police evidence confirming that “the lighting of the rumpus room was not obvious from the outside” [22] and that:

25. [40]

    Mrs Saliba gave evidence on 30 and 31 July 2025.

26. [41]

    At about midnight, Mrs Saliba and her husband were watching the television. They were awake but Mr Saliba was “like halfway in between. Nodding on and off”. [23]

27. [42]

    At approximately “12 o’clock”, Mrs Saliba heard a noise inside the house. She told her husband who suggested it was only a possum. [24]

28. [43]

    Mrs Saliba turned down the television in order to hear the noises. [25] She then heard the front door break and screamed at her husband to go outside and see who it is. [26] There was no evidence that Mr Saliba heard these noises as well.

29. [44]

    What Mrs Saliba had heard was the intruder breaking the glass and metalwork of the front door to gain entry into 54 Tallowwood Avenue. [27] The crime scene evidence is that it could not be determined whether this damage was caused to the door by a hand or by the use of an implement. [28]

30. [45]

    After she heard the noise but before they both went outside, Mrs Saliba’s account is that she saw the light turned on upstairs (the mid level). She saw the intruder in the doorway at the top of the stairs to the rumpus room. She only saw half of the man’s body and one hand. His face was covered by a balaclava. [29] Mrs Saliba then saw the man throw a bag to the right. [30] The bag was black and approximately 75 centimetres across. [31] Mrs Saliba did not see the offender holding anything else nor did she see any object sticking out of the bag. [32]

31. [46]

    Mrs Saliba shouted to her husband that someone was inside, and they went out through the sliding door to the garage. [33] They opened the garage roller doors with the remote control and went onto the driveway and screamed and shouted for help. Mr Saliba said, “[t]here is nobody there” and wanted to go back inside to check what was happening. [34]

32. [47]

    There was some uncertainty on the evidence about the sequence of events surrounding the confrontation with the Salibas and the intruder’s demands for money. On the way back into the house Mrs Saliba picked up a broom. Although initially she denied that her husband picked up a vacuum cleaner pipe, she had previously told police that is what happened and her statement was later put to her. [35] She described holding her husband by his T-shirt because she did not want him to go inside by himself. The intruder, who she could not see, was standing by the door.

33. [48]

    In her first description of the assault Mrs Saliba’s evidence was that the intruder took the broom out of her hand. She stated that she then spoke to the man in Arabic while he was holding the broom saying, “[y]ou a dickhead, why [sic] you coming here”. He did not respond and “hit [Mrs Saliba] straight away”. [36] She fell on the floor. [37] As will be seen, this is not the only description she gave of the weapon she was hit with. She did not know where her husband was. [38] She was hit a further two to three times on her head after which she “could not see anything after that”. She lost consciousness. [39] While she was “still awake” she heard the intruder asking her husband, “[w]here is the money?”. [40] She did not see the intruder hit Mr Saliba. [41] When she woke up, she started screaming for help to Mr Saliba and when he did not answer she was able to get up see him on the floor covered in blood. She ran outside and started screaming for help. [42]

34. [49]

    Mrs Saliba’s screams were first heard on audio CCTV footage from premises some distance away at 12:13am, placing the attack at this time. [43] Her screams after she regained consciousness were also recorded by CCTV and began at 12:21am.

35. [50]

    In her evidence in examination-in-chief Mrs Saliba stated that when she first saw a man at the top of the stairs, she saw him with a stick in his hands:

36. [51]

    Given that the intruder did not hit Mrs Saliba at that time it is possible that Mrs Saliba did not understand the question. The Crown prosecutor did not suggest to the jury in his opening address that when Mrs Saliba first saw this man she saw him with an offensive weapon. In any event, during cross-examination by Ms Avenell, Mrs Saliba denied that she saw the stick when she first saw the man on the stairs:

37. [52]

    This was again confirmed a few minutes later:

38. [53]

    Mrs Saliba also gave evidence that she did not see any weapon or instrument in the bag carried by the man:

39. [54]

    Similarly, during cross-examination by Mr Prince, Mrs Saliba repeated this evidence:

40. [55]

    The Crown prosecutor opened to the jury that it was anticipated that Mrs Saliba would give evidence that after seeing the intruder and going out to the garage and into the driveway, Mr Saliba picked up a vacuum cleaner pipe from the garage and Mrs Saliba picked up a broom. [49] Then, at the wooden doors between the garage and the living room, the man “hit Mr Saliba with a weapon or instrument to the head”. [50] The Crown prosecutor did not identify what type of weapon or instrument was used on the Crown case. Specifically, he did not put to the jury that “a 40cm wooden stick with a ball-shaped end” was used, as was put in the Crown Case Statement at [22].

41. [56]

    Mrs Saliba gave various different descriptions about the instrument that was used to hit her. In examination-in-chief, Mrs Saliba first said this:

42. [57]

    Mrs Saliba’s statement dated 3 June 2020 at [40] was read to her:

43. [58]

    During cross-examination by Ms Avenell, Mrs Saliba stated that the stick was the same colour “as the wooden table here in front of us”. [53] Ms Avenell then questioned her about the colour and shape of the object:

44. [59]

    It was unclear precisely what size ball the witness was indicating as her hands moved somewhat, but the Crown prosecutor suggested that it was “somewhere between cricket ball and softball” sized and that was agreed at the time. [55]

45. [60]

    At various times throughout her evidence Mrs Saliba also gave evidence that the intruder hit her with the broom she had been carrying. For example:

46. [61]

    Mrs Saliba also referred to the intruder holding the broom:

47. [62]

    Later, she says:

48. [63]

    Mrs Saliba also gave evidence about a pipe from a vacuum cleaner. In examination-in-chief, she stated that her husband did not have a pipe from a vacuum cleaner during the altercation with the offender:

49. [64]

    Mrs Saliba’s statement was put to her by the Crown prosecutor:

50. [65]

    In cross-examination by Ms Avenell, Mrs Saliba gave evidence about the spare room near the front door to the house. She said that this room was used for storage including of “[t]he vacuum cleaner, the thing for it”. [61]

51. [66]

    Isolda Ferreiro, a neighbour living at 59 Tallowwood Avenue, Cherrybrook, gave evidence that she heard loud voices “like fighting, arguing” in the early hours of 29 April 2020. [62] After she got up to look around, she saw the time of 12:18am on a clock. [63] She then looked out the window of her room and saw the lights on in the bedrooms of the Salibas’ residence. She said that it was “a bit strange” to see lights on in the house because the house was “always dark”. [64]

52. [67]

    Ms Ferreiro watched for a few minutes and then saw one man leaving the Salibas’ residence:

53. [68]

    The man then headed in the direction of Ash Street and Ms Ferreiro lost sight on him near 50 Tallowwood Avenue. [66] He was moving at a “quick pace” but was not running. [67] She identified the person as a male “because of the way he walked and his physical appearance.” [68] He appeared to be of slim build and between 170-180 centimetres in height. [69] She estimated that he was in his late twenties. [70] He was wearing dark coloured clothing. She could see his hands and thought he may have been wearing white gloves, [71] although in cross-examination she accepted that this could have been very fair skin. [72] She did not identify seeing this man carrying any weapon or offensive instrument as he left the house.

54. [69]

    In cross-examination by Ms Avenell, Ms Ferreiro confirmed that she only saw one person leaving the house:

55. [70]

    Kerry Scott was another neighbour of the Salibas who lived at 48 Tallowwood Avenue, Cherrybrook in April 2020. She gave evidence that she woke up “around quarter past, 20 past 12” and while trying to go back to sleep she heard two sets of footsteps and a conversation between two people near the laneway next to her residence. [74] She said that she heard “two separate voices speaking” and while she could not hear the entire conversation, she heard the words “come on” at least twice. She identified one voice as sounding male but believed the second was female:

56. [71]

    During cross-examination by Ms Avenell, Ms Scott was quite insistent that she had heard two people:

57. [72]

    Ms Scott also gave evidence that the female voice she heard was not the same as the women who was screaming:

58. [73]

    Jessica Wong lived at 39 Manuka Circle, Cherrybrook in April 2020. She gave evidence that while watching YouTube in her bedroom past midnight on 29 April 2020, the lights of a car illuminated the ceiling of her bedroom for around five minutes. Her evidence was as follows:

59. [74]

    Ms Avenell cross-examined Ms Wong about the number of people she heard getting into the car:

60. [75]

    The evidence of both Ms Scott and Ms Wong is difficult to reconcile with some of the other evidence. None of it was relied upon by the Crown or either of the accused to suggest that there were more than two offenders involved.

61. [76]

    Tiana Shandley was living at 15 Holly Road, Cherrybrook, a house at the end of a cul-de-sac. On the night of 28 April, she was sitting in a friend’s car near the driveway of her house. Around 9:06pm, she noticed a white coloured Audi that “drove up the cul-de-sac, did a loop and left.” [80] Around 9:20pm, she saw the car once again drive up the street, turn around and leave at a slow speed. [81] Later that night, she saw the same car from her bedroom window once again. She sent a text to her friend at 12:03am stating, “The white Audi just drove up the street and passed the house again.” [82]

62. [77]

    Dr Sairita Maistry is the forensic pathologist who conducted the post-mortem examination of the deceased. She gave evidence that Mr Saliba’s injuries were consistent with significant blunt force trauma to the head and sequelae from a heavy object with a significant degree of force. [83] While accepting the individual strikes could have caused multiple of the injuries she observed, Dr Maistry could not precisely identify the number of impacts on Mr Saliba’s body but said that “there’s definitely more than two”. [84]

63. [78]

    In examination in chief, Dr Maistry invited the Crown prosecutor to suggest potential weapons to her so that she could agree or disagree that they could have caused the blunt force injury to Mr Saliba. [85] He declined to do so.

64. [79]

    In cross-examination, Dr Maistry then invited Ms Avenell to again suggest potential objects so that she could tell her whether it was consistent with the murder weapon:

65. [80]

    On re-examination, this evidence was clarified:

66. [81]

    Eyewitnesses who were first on the scene gave evidence that a metal pipe of a vacuum cleaner was found near or on Mr Saliba’s body. Susan Calabrese was living at 65 Tallowwood Avenue in Cherrybrook in April 2020. She gave evidence that after she heard Mrs Saliba screaming, she looked into the garage and downstairs living room of the house and saw Mr Saliba. Ms Calabrese described the presence of a metal vacuum cleaner pipe:

67. [82]

    Mrs Calabrese moved the pipe and placed it next to where Mr Saliba was laying. Senior Constable Mia Hilton arrived on the scene early on 29 April and saw Mr Saliba slumped against the white sliding door. She saw a “chrome coloured vacuum cleaner rod lying in the vicinity”. [89] It appeared that the rod had some blood on it. In cross-examination by Ms Avenell, Senior Constable Hilton stated the following as to the position of the rod:

68. [83]

    The Crown prosecutor also read from the statement of Alexander Smith who was the first ambulance crew on the scene. He stated that:

69. [84]

    Sergeant Tania Cajna analysed the bloodstains present at the scene from photographs. She gave evidence that there was bloodstaining “around the middle section” of a vacuum pole. The vacuum pole was undamaged. [92] Testing of two swabs of blood on that pole was “consistent with biological material coming from Kalim Saliba to a high statistical probability”. [93] She stated the blood spatter was consistent with two applications of force:

70. [85]

    In cross-examination by Mr Prince, Sergeant Cajna gave the following evidence:

71. [86]

    A trace swab at the top of the vacuum pole had a mixed DNA profile and both Mr and Mrs Saliba cannot be excluded as a contributor to this mixture. [96] There was also another blood swab from the pole that was consistent with the DNA profile of Mrs Saliba. [97]

72. [87]

    The crime scene photos and evidence do not identify any stick, broom or any other weapon left at the scene (besides the vacuum cleaner pipe) with the blood of the deceased on it that could be consistent with the weapon or offensive instrument used in the assault.

73. [88]

    Sergeant Kelly Paton attended the scene at 54 Tallowwood Avenue on 29 April. Sergeant Paton gave evidence that the only signs of disturbance on the top floor of the residence were a glove mark on a cupboard door and a shoe box that had been moved. [98] The shoe box was in a built-in wardrobe in one of the bedrooms and was moved onto the ground. [99] In another bedroom, there was a mark on a cupboard door that was enhanced with black fingerprint power and consistent with a glove mark. While no assessment could be made as to the age of the mark, Sergeant Paton accepted that it was possible that it was a mark from someone cleaning the cupboard doors with a rubber glove at an earlier point in time. [100]

74. [89]

    The Crown relied on mobile telephone records to track the accused’s movements on 28 and 29 April and their communications with each other. There were two telephone numbers subscribed in the name of Mr Stephen and Mr Tadrosse respectively and two further numbers which the Crown described as their “other services”. [101] These were covert services subscribed in the names of non-residents who had briefly visited Australia in 2019.

75. [90]

    There was evidence that Mr Tadrosse had purchased a $20 Vodafone recharge voucher around 1:30pm on 28 April and used it to recharge his covert service. There was also evidence that Mr Stephen transferred $28 to Mr Tadrosse at 1:09pm that day, presumably in order for him to do so. [102]

76. [91]

    Raymond Chang, an Optus radio engineer, gave evidence about the coverage areas of Optus cell sites and base stations for the mobile phone registered to Mr Stephen (as the only Optus service). [103] Han Chew, a former coverage capacity manager of Vodafone, gave evidence about all four mobile phones and their movements during the relevant period. [104]

77. [92]

    Mr Stephen was associated with two vehicles. The first vehicle was a grey Audi TT RS with registration VAV-315. There was evidence that Mr Stephen had use of this car, including various traffic stops, toll information, and Bluetooth connections to his phone. [105] There was also video of Mr Stephen driving this car posted on Facebook in December 2019. [106] The second vehicle was a black Toyota Hilux utility with registration DYA-96G. While this vehicle was owned by Mitchell Aquilina, there was evidence that Mr Stephen also had use of this car, including traffic stops and the testimony of Mr Aquilina. [107] On the Crown case, these two vehicles were captured on CCTV making various trips around the relevant area in Cherrybrook, as discussed further below.

78. [93]

    At 12:41pm on 28 April 2020, Mr Tadrosse called the dental surgery Smile Concepts to discuss expensive dental implants. [108] The Crown relies on this as evidence that Mr Tadrosse expected to receive money that night.

79. [94]

    Mr Tadrosse, who resided in Potts Point at the time, travelled by train to Thornleigh (near Cherrybrook) in the afternoon before the attempted robbery of the Salibas. He was not depicting doing so by any CCTV. Rather, the Crown seeks to prove this through evidence that Mr Tadrosse’s Opal card was tapped on at Kings Cross at 2:42pm and tapped off at Thornleigh at 3:59pm. [109] His telephone was also detected following that train route. [110]

80. [95]

    Mobile telephone use can establish that both accused were either together or in close contact with each other in the lead up to and including the time of the offences. For example, there were short calls between their “other services” at 1:40pm and 2:02pm and from 2:35pm to 4:09pm on 28 April. [111]

81. [96]

    Significantly, there were no other calls between their services from 4:09pm when, on the Crown case, Mr Stephen collected Mr Tadrosse from the Thornleigh train station, until immediately after the incident at the Salibas’ residence at which point there were calls between the accused’s other services at 12:19am and 12:21am on 29 April. [112]

82. [97]

    The Crown relies on a combination of mobile telephone records and CCTV footage to establish that there were nine trips made past the Salibas’ residence from the afternoon of 28 July until the early morning of 29 July in the cars associated with Mr Stephen. The first eight trips are said to constitute surveillance or reconnaissance with the final trip culminating in the commission of the offences. These trips are summarised in Exhibit M as follows:

    1. (1)

       Trip 1 by the Audi between 2:27 and 2:28pm; [113]

    2. (2)

       Trip 2 by the Hilux between 5.26 and 5:38pm; [114]

    3. (3)

       Trip 3 by the Hilux between 5:53 and 6pm; [115]

    4. (4)

       Trip 4 by the Hilux between 6:46 and 7:04pm; [116]

    5. (5)

       Trip 5 by the Hilux between 7:26 and 7:41pm; [117]

    6. (6)

       Trip 6 by the Hilux between 7:49 and 8:05pm; [118]

    7. (7)

       Trip 7 by the Audi between 8:49 and 9:09pm; [119]

    8. (8)

       Trip 8 by the Audi between 9:29 and 10:08pm; [120] and

    9. (9)

       Trip 9 by the Audi between 10:44pm and 12:23am. [121]

83. [98]

    As stated above, Tiana Shandley also gave evidence that she saw a white Audi sedan in the cul-de-sac on Holly Road (near Tallowwood Avenue) between 9:06 and 9:20pm on 28 April, consistent with Trip 7 on the Crown case. She also saw the same car again at 12:03am on 29 April. [122]

84. [99]

    The Crown relies on CCTV footage to establish that the Audi was the only vehicle that drove in and out of Cherrybrook that night. [123]

85. [100]

    Telephone records relating to the accused’s various mobile phone services place them in the Cherrybrook area through the evening of 28 April until past midnight on 29 April. Specifically, Mr Chew gave evidence that the phones were in the area between Pennant Hills and Cherrybrook from 10:10pm to 12:23am according to the cell sites they interacted with. [124]

86. [101]

    After the attempted robbery, Mr Stephen drove Mr Tadrosse home to Potts Point. The Crown relies on toll records and photographs relating to the Audi to establish this, which show the vehicle travelling south towards Sydney CBD from 12:38pm to 12:48pm. [125] There was also CCTV footage of the Audi in Potts Point, near Mr Tadrosse’s residence. [126] Mobile telephone evidence confirms these movements. [127]

87. [102]

    After Mr Tadrosse arrived home, there was telephone contact between the accused’s other services, including at 1:24am and 1:31am. [128] After that time, at 1:38am, Mr Stephen transferred $150 to Mr Tadrosse’s bank account, after being transferred that amount himself by his wife. [129] Mr Tadrosse then caught a taxi in his own name at 2:09am to an address next to the residence of Mr Stephen’s parents in Pennant Hills. He arrived at 2:38am and left a few minutes later to return home again in the taxi at 3:06am at a total cost of $176.65. [130] After Mr Tadrosse got home, there was another call between the accused’s other services at 3:25am.

88. [103]

    At 4:41am, Mr Tadrosse searched for the terms “symptoms of coronavirus” and “coronavirus hotline”. [131] At 4:44am, Mr Tadrosse telephoned the COVID hotline and stated that he had just woken up, that he had not been out except to buy groceries and that he had been tired and had symptoms all day. [132] The Crown case is that in doing so he set up a false alibi.

Submissions

1. [104]

   In addressing whether there was evidence capable of proving that the agreement was to commit an armed robbery, as opposed to simply a break, enter and steal, the Crown made the following submissions.

2. [105]

   It was confirmed that the Crown case is that there were only two offenders; one was the driver of the Audi and other was the assailant inside 54 Tallowwood Avenue.

3. [106]

   Although it was accepted that there was no direct evidence as to the scope of the agreement between the two accused, it was submitted that the Crown case can be proved in reliance upon inferences. Significant reliance was placed on the planning evidenced by the fact that the accused made nine trips past the Salibas’ premises that day. It was submitted that the point of time to fix the state of knowledge of the driver (Male 2) is from the beginning of these trips rather than when the intruder left the parked Audi after midnight. Further evidence to support the Crown case was identified as follows.

4. [107]

   It was submitted that the weapon was the type of instrument that one would at least expect a single intruder to have on him to effect entry and to threaten the occupants.

5. [108]

   It was accepted that the precise cause of breaking the glass on the front door could not be determined according to Sergeant Paton. [133] Despite this, it was submitted that it would be unlikely that someone would use a hand to break the glass, especially when some care had been adopted to mask the person’s appearance. The risk of cutting a hand before a large enough hole was made to allow a hand to pass inside the house was too great and the risk of bleeding at the premises was too great, even if the intruder wore gloves. Moreover, a quick entry through the front door, which was visible from the road and from the neighbours’ properties, would have been desired by the assailant such that using a hand or foot would appear impractical.

6. [109]

   Further, it was submitted that the nine trips allowed for an examination of the house by both accused as well as possible points of entry. It could not be the case that the driver and the assailant left the means by which entry was to be gained to be determined by the assailant once he was at 54 Tallowwood Avenue.

7. [110]

   The Crown case was identified as being that after the assailant entered the house by breaking through the front door, he had made sufficient noise such that Mrs Saliba heard him from downstairs while watching television. It was submitted that the assailant must have not cared greatly about the noise he made. He must have therefore expected to have a confrontation with the occupants of the house. The Crown case was that he was ascending the stairs up to the bedrooms of the house, while masked. His intent must therefore have been to rob the people who were at home. In order to do that, he needed something to ensure that he got himself through the front door and was able to control and threaten the occupants, even if they were small and elderly, because, as events showed, “they might not be amenable to the demands of the assailant”.

8. [111]

   The evidence that the assailant turned on a light was relied on. [134] This was said to support the Crown case that he “clearly must have expected to come face to face with the Salibas having done so”, which is why he was masked. It was submitted that there is no evidence that he saw Mrs Saliba at the time she saw him at the top of the stairs. It was noted that the evidence was that any light source from the downstairs living room could not be seen from outside. It was suggested that it was the shouting by the Salibas from outside the premises when they were on the driveway [135] which must have alerted the assailant and caused him to return downstairs and thus to the confrontation. It was submitted that just because the assailant did not go downstairs to confront the Salibas does not mean that the assailant did not have that intention.

9. [112]

   Reliance was placed on the fact that the first thing the assailant said to Mr and Mrs Saliba, when he confronted them was, “[g]ive me the money”. It was submitted that this evidence supports the Crown case that the plan was to culminate with a demand for money while armed. It was submitted that it was “not conceivable” that the assailant could enter 54 Tallowwood Avenue and simply locate “the money” within the house by himself and while the Salibas slept.

10. [113]

    It was submitted that the evidence of the use of a wooden stick with a ball shape at the end was not “something outside what was agreed or contemplated” and that “[t]he inferences all support that its use was agreed between [the two accused]”.

11. [114]

    As for the murder weapon, it was accepted that there is no direct evidence of what occurred to it, only that it was not recovered. Ms Ferreiro did not see the man passing on the other side of Tallowwood Avenue holding a weapon or what could have been a weapon. Nor did she see a bag, and Mrs Saliba gave evidence of seeing a bag. No bag was recovered from 54 Tallowwood Avenue. In light of this, it was submitted that the bag and the weapon must have been taken away.

12. [115]

    It was submitted that the time in which the assailant had to come downstairs, find a weapon and then confront Mr and Mrs Saliba could not have been long and is not a “realistic explanation” for how the assailant came to have a weapon. Further, it was submitted that the prospect that the weapon came from the house is an alternative hypothesis and the inference the Crown seeks the jury to draw remains.

13. [116]

    In summary, the Crown submitted that it could prove beyond reasonable doubt that the agreement was to commit an armed robbery, as opposed to simply a break, enter and steal, based on the following evidence.

14. [117]

    First, the fact that the offenders drove past the premises nine times is consistent with a significant degree of planning. That “must have” included a plan as to how to break into the premises.

15. [118]

    Secondly, entry was gained by breaking a panel of glass in the front door. It was submitted that this could only have been done with a weapon and that the planning “must have” been about reducing risk. If a hand or fist or elbow had been used to break the glass, there was a risk that blood would have been left at the scene. Therefore, it can be inferred that the agreement must have included using a weapon to break the front door.

16. [119]

    It was accepted that the crime scene evidence was neutral as to whether or not a weapon had to be used to break the glass on the front door or whether it could have been broken by a part of the body such as an elbow. Despite this, it was submitted that the intruder must have brought something with him to smash the door given so many trips were made planning the event. It cannot have been the case that the offender would not have planned to use a weapon to open the door. When it was suggested during oral argument that the door could have been broken with a rock obtained from the garden at the premises, it was submitted that this scenario can be excluded because that is consistent with an impulsive crime, rather than a planned one.

17. [120]

    Thirdly, it was submitted that the Crown does not have to prove what the weapon was, only that it was something that could break the door and threaten the couple. The weapon had to be sufficient to get through the front door and sufficient to kill Mr Saliba by cracking his skull. It was submitted that the same weapon was used to assault both Mr and Mrs Saliba. Reliance was placed on Mrs Saliba’s description of a stick with a ball on top. It was accepted that Mrs Saliba also described the murder weapon as being a broom that was grabbed from her hand and used to hit her, but it was submitted that the evidence about the broom was an “artefact of the difficulty of Mrs Saliba giving evidence through an interpreter”.

18. [121]

    As for Mrs Saliba’s evidence that the intruder had a bag, it was accepted that Ms Ferreiro did not see anything in the intruder’s hands when he left the house, but it was submitted that her evidence should not be accepted as she did not have the same advantage as Mrs Saliba did in seeing the man with the bag.

19. [122]

    Fourthly, it was accepted that Mrs Saliba did not see a weapon in the hands of the intruder when she first saw on the stairway. But it was submitted that this fact does not harm the Crown case because the intruder “might have” had a weapon in his other hand that she could not see at the time.

20. [123]

    Fifthly, it was submitted that the intruder may have used a stick with the ball on it which is different to a broom. It was submitted that the vacuum cleaner is not the murder weapon. It was accepted that no bag was found at the scene nor seen in the man’s hands by Ms Ferreiro. Despite this, the bag must have been taken away and perhaps Ms Ferreiro was not focusing on that aspect. It was submitted that the positive evidence that the weapon was taken from the scene is the fact that nothing was left at the scene.

21. [124]

    In written submissions, senior counsel for Mr Tadrosse acknowledged that, although it is disputed by both accused, and they would argue against the proposition to the jury, it was accepted that the application could proceed on the basis that the prosecution can prove that the two accused were the two offenders. It was also accepted that this application could proceed upon the basis that the prosecution can prove that the two accused made the trips around Cherrybrook described in Exhibits J and L, were using the two covert telephone numbers respectively and agreed to commit a break, enter and steal at 54 Tallowwood Avenue Cherrybrook.

22. [125]

    She submitted that there is no evidence Male 1 was armed with an offensive weapon or instrument, capable of causing Mr Saliba’s injuries, when he left the car. Even if he was, there is no evidence Male 2 knew of this.

23. [126]

    Further, it was submitted that there is no evidence capable of establishing that Male 2 agreed to an assault while armed with an offensive weapon or instrument, let alone to rob, and let alone contemplated it might be used to wound or intentionally cause grievous bodily harm (or be used for an unlawful and dangerous act). It was noted that the victims were elderly relatives of the accused.

24. [127]

    Reliance was placed on the fact that to the extent the police engaged in any examination of items left at the scene, a stick with a ball on it does not seem to have been observed; only the vacuum cleaner tube. Further it was submitted that for the purpose of this application the question is not whether any weapons were left at or taken from the scene but, rather what, if anything, was brought to the house.

25. [128]

    As for the Crown submissions, it was submitted that it is speculation to suggest that something might have been in the intruder’s hands but out of Mrs Saliba’s sight when she first saw Male 1 on the stairs and there was no basis to find this as a matter of fact.

26. [129]

    As for the reliance on planning, it was accepted that the Crown can prove some planning, but it was submitted that this does not answer the question as to what the plan was. It was submitted that the Crown has failed to identify the evidence that could establish the scope of the plan on a rational basis. Further, it was noted that a difficulty with some of the Crown’s written submissions is that they are simply statements of the Crown case rather than an identification of any evidence that can establish the necessary elements.

27. [130]

    Further, by reference to R v Nikolovski (No 2), it was observed that in that case there was proof of knowledge of the weapon but not that the weapon was capable of being used. In the present case, there is no evidence at all to prove that Male 2 knew that there would be a weapon. As for the evidence that a bag may have been taken to the scene, it was submitted that this can only assist Male 2; if Male 1 had a bag with him then the weapon could have been concealed in the bag.

28. [131]

    It was submitted that many aspects of the Crown submission are pure speculation. For example, the Crown submission that it would be unlikely that someone would use a hand to break the glass to gain a quick entry through the front door, because that would be impractical, is “pure speculation”. It was submitted that there are numerous ways in which the front door could have been broken: an elbow or a foot, an emergency glass breaker, a rock, a chair from the balcony, a stick from the front yard or one of the garden stakes. [136]

29. [132]

    It was further submitted that there is an internal contradiction in the Crown submission that the offence must have been planned so as to get a quick (undetected) entry but also that the intruder did not care what noise was made as he intended to confront the occupiers. Similarly, the fact that a light was turned on is not consistent with the Crown case that the intruder went up to the bedroom where he thought the Salibas would be sleeping. That is because the light was turned on at the middle level and not in the upstairs room. Further the evidence is that the intruder left the bag on the stairs and there is no evidence it was taken upstairs.

30. [133]

    It was submitted that the Crown submission that the intruder must not have seen Mrs Saliba at the time she saw him should not be accepted. First, Mrs Saliba described seeing both of his eyes through his balaclava so he must have been facing her. Secondly, the light was on in the rumpus room, and he would have to at the very least have seen that and realised people were at home downstairs. The fact that he did not go down and confront them when he realised where they were is inconsistent with the Crown case that the plan was to confront them with an offensive weapon.

31. [134]

    As for the Crown submission that the intruder was going upstairs to confront the Salibas in their bedroom where he must have thought they would be sleeping, the evidence of Mrs Saliba did not go so far as to establish that the intruder was going to the bedrooms. it was noted that there is a significant effluxion of time after Mrs Saliba lost consciousness and the intruder left the premises. It is possible that the intruder went upstairs (and moved the shoebox and left a glove print) after the attack which, again, is inconsistent with the Crown case that the intruder was headed straight to the bedroom to confront them when he arrived.

32. [135]

    It was submitted that the jury is being invited to reason backwards. That is, to argue that Male 2 must have contemplated what actually happened and he must have known about the weapon.

33. [136]

    On behalf of Mr Stephen, all of the submissions made on behalf of Mr Tadrosse were adopted and some further brief written and oral submissions were made.

34. [137]

    It was submitted that there is a clear absence of evidence capable of inferring that the agreement was to bring a weapon to the scene.

35. [138]

    As for the front door, there is simply no evidence as to what degree of force would have been used to break the glass on the front door. Photographs 6 and 7 from Exhibit A show a stained glass panel where, once broken, you could reach in and unlock the door to open it. It was submitted that perhaps if the door had been much heavier the Crown may have a stronger argument in this regard but there is no evidence that the front door was kicked in.

36. [139]

    As for the reliance on the planning and multiple trips past the premises, it was submitted that this is consistent with waiting until the occupants were asleep; if the intruder had wanted to make noise and rob them, why would he have not done it when they were awake?

Consideration

1. [140]

   There was no dispute as to the applicable principles. I would direct the jury to acquit both Mr Stephen and Mr Tadrosse on both counts, as well as the alternative counts, if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty. I could not direct verdicts of acquittal if there is evidence in the Crown case on which both of the accused could be convicted even though a reasonable hypothesis consistent with innocence can be formulated. The question then is whether the evidence is capable of producing in the mind of a reasonable juror satisfaction, beyond reasonable doubt, of the guilt of both of the accused on both counts.

2. [141]

   I have approached the question for determination on the basis that this is not an occasion to undertake an evaluation of the weight of the evidence, as distinct from considering whether, taken at its highest, it could support a verdict of guilty. I have proceeded on the basis that when there are competing inferences in a circumstantial case, including as to the scope of the joint criminal enterprise, if at least one of those inferences is capable of proving the Crown case the charge should be left to the jury.

3. [142]

   It is not necessary to examine the relevant principles of extended joint criminal enterprise in order to consider this application. I have already considered them in some detail in R v Stephen; R v Tadrosse (No 4). This application concerns the absence of evidence capable of establishing the following elements of the Crown case:

   1. (1)

      That Mr Tadrosse and Mr Stephen entered an agreement to assault the occupants of the house (that is, to cause them to apprehend immediate and unlawful violence) with intent to rob them of money or other valuable property, while being armed with an offensive weapon or instrument;

   2. (2)

      That each of Mr Tadrosse and Mr Stephen participated in that agreed crime; and

   3. (3)

      That although the commission of the incidental crime by Mr Stephen or Mr Tadrosse was not within the scope of the agreement, it was contemplated by the other of them as a reasonable possibility that it might be committed by the other of them and that offender continued to participate in the agreement.

4. [143]

   Although the case against each accused should be considered separately, following my ruling in R v Stephen; R v Tadrosse (No 4), this is not a case in which it would be possible for one of the accused to be convicted and the other to be acquitted. That flows from the fact that the Crown accepted that extended joint criminal enterprise is a form of derivative liability which means that Male 2 cannot be convicted unless Male 1 is convicted. On that basis, I will proceed to consider the case against both men at the same time. In any event, on the discrete question of whether they agreed to do an armed robbery rather than a break, enter and steal, no difference in the cases against each of them has been identified.

5. [144]

   The Crown case relied on inferences. As juries are routinely directed, inferences are conclusions of fact rationally drawn from a combination of proved facts. Speculation, on the other hand, arises where there is no established fact in the first place from which a conclusion could be drawn. I have sought to delineate between rational inferences available on the Crown case as opposed to mere speculation.

6. [145]

   It is to be accepted, as the Crown submitted, that a Crown case can be successfully brought based solely on inferences. But for this to occur, there must first be established facts from which those inferences can be drawn. If there are insufficient established facts from which inferences can be drawn in the first place, whether competing or otherwise, then there will be a flaw in the Crown case such that it cannot prove its case.

7. [146]

   Given the factual density of the Crown case, the issues upon which these applications turn are relatively narrow. Most of the evidence in the Crown case was directed at establishing, by way of circumstantial evidence, that it was these two accused, rather than any other suspects, who planned to break and enter the premises of the Salibas and steal from them. It was common ground that, taking the case at its highest, the evidence called in the Crown case is capable of establishing that Mr Tadrosse and Mr Stephen were in the vicinity of the premises at the time and had planned a break, enter and steal into the premises. It is thus not necessary for me to consider the evidence in support of that aspect of the Crown case.

8. [147]

   The two central questions on this application are related. They are:

   1. (1)

      Is there evidence capable of establishing beyond reasonable doubt that both men agreed to commit, effectively, an armed robbery at the premises; and if so

   2. (2)

      Is there evidence capable of establishing beyond reasonable doubt that Male 2 foresaw the possibility that Male 1 might kill Mr Saliba (by intentional inflicting grievous bodily harm on him whilst armed) or wound Mrs Saliba during that armed robbery.

9. [148]

   The significance of the first of these two elements is that in order to convict both men the Crown must be able to prove beyond reasonable doubt that Male 2, sitting in the car some 250m away, had planned with Male 1 that there would be an armed robbery including a confrontation with the occupants whilst Male 1 was armed with an offensive weapon which it was intended he would use to threaten the victims in order to obtain their money.

10. [149]

    The starting point is that there is no direct evidence in the Crown case to establish: the scope of the agreement including whether it was a break, enter and steal on the one hand or an armed robbery on the other; whether the agreement was that Male 1 would go in armed; whether Male 1 intended to confront the elderly couple; and/or what the offensive weapon would be.

11. [150]

    The Crown accepted that there was no direct evidence available to establish any of these aspects of the Crown case but submitted that inferences could be drawn from the available evidence capable of establishing the scope of the agreement beyond reasonable doubt. I have identified those aspects of the Crown case above at [117]-[123] and will now consider them in turn.

12. [151]

    The first aspect of the evidence the Crown relied upon was that fact that the offenders drove past the premises nine times that day. It was submitted that this is consistent with a significant degree of planning. Although I accept that submission in its terms, it leaves open the question as to what it was that was being planned. Taken alone that evidence is neutral as to whether both of the accused were planning a break, enter and steal at the premises or an armed robbery. There are a number of possible explanations as to why so many trips were taken past the premises. One explanation is that it gave the accused the opportunity to permit surveillance of the premises to consider a suitable entry point (which is neutral as between an armed robbery or a simple break, enter and steal). Another explanation is that as the night wore on, the accused were seeking to ensure that the occupants were asleep before they committed the break, enter and steal; it was common ground that one cannot see that the lights are on in the downstairs rumpus room until you are right up at the front door.

13. [152]

    As to this first aspect of the evidence relied upon by the Crown, it seems to me to be intractably neutral as to whether the plan was to commit an armed robbery or simply a break, enter and steal.

14. [153]

    The second aspect of the evidence the Crown relied upon was that entry was gained by breaking a panel of glass in the front door. It was submitted that this could only have been done with a weapon and that the planning “must have” included a discussion about reducing the risk of detection. The Crown accepted that one of the difficulties with this aspect of the Crown case is that, again, the evidence is neutral as to how entry could have been obtained. The evidence of the crime scene expert Sergeant Paton is that it could have been either with a body part or an object. Sergeant Paton’s evidence was as follows:

15. [154]

    Despite the fact that the expert evidence was not to the effect that an object must have been used to break the glass on the door, the Crown submitted that the planning evident from the nine trips past the premises “must have” included a discussion about the mode of entry and a discussion as to how to minimise the risk of detection. In other words, the agreement “must have” included using a “weapon” to break the front door.

16. [155]

    Again, the fact that entry was gained by breaking some glass on the front door is neutral as between establishing whether the plan was to commit a break, enter and steal as opposed to an armed robbery. The noise of the breakage must not have been very loud as Mr Saliba did not hear it. If both of the occupants had been asleep in their upstairs bedroom, it seems even less likely that it would have been heard.

17. [156]

    In making these observations, I am not assessing the weight of the evidence. Rather, I am considering whether the evidence that some glass was broken on the front door to gain entry is capable of establishing that the agreement “must have” included the fact that Male 1 would bring a weapon to the premises to gain entry to the premises, as opposed to, for example, the agreement being that a rock or other item available in the front garden or on the street on the way to the premises would be picked up and used, or, by way of another example, that an elbow would be used.

18. [157]

    Further, to the extent that the Crown relied on an inference that Male 1 “must have” brought a weapon to the premises to break the glass on the door, it does not automatically follow that any weapon used to break into the premises was the same weapon intended to be used to threaten the Salibas as part of any planned armed robbery.

19. [158]

    The third aspect of the evidence the Crown relied upon concerned Mrs Saliba’s description of the murder weapon, which, on the Crown case, must have been taken to and from the premises; an armed robbery could not have been planned and agreed upon without the offensive weapon being brought to the premises for that purpose. The Crown submitted that it did not have to be able to prove what that weapon was, only that it was something that could break the door, threaten the couple and kill Mr Saliba by cracking his skull. The Crown case was that this weapon was the stick with a ball on top of it described by Mrs Saliba and that it was used to assault both Mr and Mrs Saliba.

20. [159]

    The identity of the murder weapon remains one of the mysteries of this case. Contrary to the Crown submissions, I am satisfied that its identity is of importance. If it was either of the broom or the vacuum cleaner tube that Mr and Mrs Saliba armed themselves with as they approached Male 1, then the Crown cannot establish that the agreement was for Male 1 to be armed nor that Male 2 could have foreseen the fatal attack.

21. [160]

    On one view, proof that the murder weapon was the stick with the ball on the top of it described by Mrs Saliba (which has never been located) could be considered to be an intermediate fact in this circumstantial case. As the High Court held in Shepherd v R (1990) 170 CLR 573; [1990] HCA 56, the Crown does not need to prove every fact from which it invites the jury to draw inferences beyond reasonable doubt: at 580. Despite this, in some cases there might be one or more facts from which the jury is invited to draw an inference from a fact that is an “intermediate” step in the chain of reasoning that leads to the conclusion of guilt, as Dawson J observed in Shepherd v R at 579. Such facts do need to be proved beyond reasonable doubt as they “constitute indispensable links in a chain of reasoning towards an inference of guilt”.

22. [161]

    Given that I did not invite the parties to address on whether identification of the weapon is an indispensable fact, I will not make any finding on that issue. But the fact remains that the Crown case is unsustainable if the murder weapon was picked up at the scene by Male 1 because it is contrary to the Crown case that the agreement was to enter the premises armed with an offensive weapon and that Male 2 knew what that weapon was.

23. [162]

    I have already summarised the evidence concerning the three possibilities regarding the identity of the murder weapon and/or the weapon used to assault Mrs Saliba: the vacuum cleaner tube, a broom or a stick with a ball on the end. Evidence was adduced in cross-examination that there were numerous other “sticks” on the premises as well. Although it was the Crown submission that the same weapon was used to assault both Mr and Mrs Saliba, it is not apparent to me why that must be the case. On Mrs Saliba’s evidence, she was assaulted first, rendered unconscious, did not see what happened to her husband and woke sometime later to find him seriously injured. She may have been assaulted with either the broom she was carrying or the “stick with the ball on the end” and her husband then assaulted with the vacuum tube. On Mrs Saliba’s account, she could not know what her husband was struck with as she was already unconscious at that time.

24. [163]

    The vacuum cleaner tube was not shown to the forensic pathologist, but her evidence was that a metal vacuum cleaner tube could have caused the fatal injuries. It was also the evidence of Sergeant Cajna that it could have been the murder weapon. It was the only item found at the scene with the victims’ blood on it. It was found lying on top of Mr Saliba when he was first found by Mrs Calabrese after the assault. The Crown relied on the fact that the blood was in the middle of it and it was not damaged such that it can be excluded as the murder weapon. Instead, the Crown relied on the black marks on the door as being consistent with a black ball said to be on the top of the stick described by Mrs Saliba, which was never located.

25. [164]

    Another complicating factor is that Mrs Saliba described seeing a bag when she first saw Male 1. She described the intruder throwing the bag and then moving away without it. That bag is never seen again. Ms Ferreiro does not describe the intruder having anything in his hands when he left the premises. If the intruder attended the premises with a bag, even if there was a stick with a ball on it inside the bag, that does not mean that Male 2 was necessarily aware it had been brought to the premises. It must be borne in mind that the relevance of the weapon is that the Crown must be able to establish beyond reasonable doubt that Male 2 agreed that the weapon would be used and had that state of mind prior to Male 1 entering the Salibas’ premises.

26. [165]

    The fourth aspect of the evidence the Crown relied upon was more of a submission. It was submitted that the fact that Mrs Saliba did not see any weapon in the hands of the intruder when she first saw him on the stairway does not harm the Crown case because the intruder might have had a weapon in his other hand that she could not see at the time. I am not satisfied that there is any established fact from which to draw this inference and it is purely speculative. The evidence of Mrs Saliba, taken at its highest, is that she saw the intruder at the top of the stairs throw a bag. She saw that he was wearing a balaclava. She then saw him disappear out of sight. Although this evidence is somewhat neutral as between establishing that the agreement was to commit a break, enter and steal, as opposed to being to commit an armed robbery, it tends towards the former given the lack of any obvious weapon in the intruder’s hand and the fact that he did not immediately confront Mrs Saliba at that time.

27. [166]

    The fifth aspect of the evidence the Crown relied upon concerned inferences to be drawn from what was not left at the premises. It was accepted that no murder weapon or bag were seen being taken from the scene by Ms Ferreiro, but it was submitted that she did not have the same opportunity as Mrs Saliba did to observe the bag and the stick with the ball on it. It was submitted that the positive evidence that the bag and the weapon were taken to and from the scene is the fact that nothing that could be the murder weapon was left at the scene. Again, there is a degree of circular reasoning to this contention; the evidence relied upon by the Crown to establish that the agreement included being armed with an offensive weapon is that no stick with a ball on it was left at the scene.

28. [167]

    Having considered the Crown submissions, the high point of the Crown case that the joint criminal enterprise was to commit an armed robbery (besides the evidence that entry was obtained by breaking the glass at the front door) is that one of the three descriptions of the potential weapon provided by Mrs Saliba pertained to a stick with a ball on it which was not left at the scene therefore it must have been something brought to the scene (of which there is no direct evidence) and then taken from the scene (contrary to the evidence of the only eyewitness who saw the intruder leaving the premises without anything fitting that description.)

29. [168]

    Further, even if the Crown could prove that Male 1 brought a stick with a ball on it to the premises, that does not necessarily mean that it can be established that Male 2 knew of that. If the Crown cannot establish beyond reasonable doubt that the agreement was to commit an armed robbery, then the Crown cannot establish beyond reasonable doubt that Male 2 foresaw the possibility that Male 1 would kill Mr Saliba (with the necessary intent for murder) and wound Mrs Saliba (as part of that armed robbery).

30. [169]

    It is not uncommon for murder trials to proceed and lead to convictions when the identity of the murder weapon is unclear. A lack of such evidence may have little if any significance in a case against a principal offender where there is other evidence capable of establishing the elements of murder against that principal beyond reasonable doubt. By way of example, had the Crown been in a position to be able to prove which of Mr Stephen or Mr Tadrosse was Male 1 it would not have mattered that there is no direct evidence as to what the murder weapon was and whether it was brought to the scene or picked up on the premises.

31. [170]

    The difficulty for the Crown in this case is that in order to convict the killer, the Crown must be able to prove that the person waiting in the car is equally liable for the savage attack on this elderly couple in their home that night. In order to do so, there must be evidence capable of proving beyond reasonable doubt that Male 2, sitting in the car 250m away from the vicious attack, was part of an agreement to commit the armed robbery of the couple, knew that Male 1 was armed with an offensive weapon (as it was part of the agreement that he be so armed), knew that Mr and/or Mrs Saliba would be confronted and threatened (as that was also part of the agreement) and foresaw the possibility that one or both of them would be killed or wounded and continued to be part of the agreement nonetheless.

32. [171]

    A co-offender who is not present at the scene of a murder can only be prosecuted for that crime on principles of joint criminal enterprise and/or extended joint criminal enterprise if there is evidence capable of establishing, inter alia, the scope of the agreement beyond reasonable doubt. In this trial, the inferences capable of being drawn from the established facts as to the scope of the agreement go no further than establishing that the two offenders planned a break, enter and steal that night; the established facts simply do not permit inferences beyond that to be proved beyond reasonable doubt.

33. [172]

    If there had been evidence that both men had entered the premises together then the factual scenario would have been very different. That may have led to a situation such as in McNamara v The King (2023) 280 CLR 201; [2023] HCA 36. In such cases the three alternative conclusions are that the deceased was killed pursuant to a joint criminal enterprise or that one or the other acted alone. Often in such cases “cut-throat” defences are raised in which the accused persons both deny that they are the killer, and it is left to the jury to decide. The evidence that, on the Crown case, only one of either Mr Stephen and Mr Tadrosse entered the premises, whilst the other waited in a car some distance away, precluded the case being brought in that way.

34. [173]

    For these reasons, I have come to the conclusion that the evidence in the Crown case, taken at its highest, is simply not capable of establishing beyond reasonable doubt that Male 2, whether he be Mr Stephen or Mr Tadrosse was part of an agreement to commit an armed robbery with Male 1 (whether he be Mr Stephen or Mr Tadrosse) as opposed to an agreement to commit a break, enter and steal. The unfortunate result of that conclusion is that directed acquittals must be entered in relation to both accused, even though the Crown can prove that one or the other of them must have been the intruder that night.

35. [174]

    A final complicating factor is that the Crown put its case in the alternative on both counts against both accused. The Crown accepted at the conclusion of the hearing of this application that any flaw in the Crown case would also extend to those alternate counts. I am satisfied that is the case and that the jury will have to be directed to bring in not guilty verdicts on the alternate counts as well.

36. [175]

    Accordingly, I am satisfied that directed acquittals should be entered against both accused on both counts in the indictment as well as the alternate counts.