R v Douglass (No 1)

1. [1]

   HIS HONOUR: The accused, Ammie Douglass, is charged that between 6 August 2016 and 12 August 2016, at Lithgow, she murdered Christopher Whiteley (“the deceased”). The trial commenced on 22 August 2022 as a trial by judge alone, pursuant to s 132(2) of the Criminal Procedure Act 1986 (NSW). Upon arraignment, the accused entered a plea of not guilty. The Crown case was closed on 7 September 2022. A case for the defence was presented the same day. The parties made their closing addresses on 9 September 2022, assisted by written submissions. I reserved my verdict judgment until 26 September 2022.

An overview of the Crown case

1. [2]

   The Crown case, briefly stated, is that on the evening of 7 August 2016, the accused and her then partner, who I will refer to as AS, [1] entered the deceased’s semi-detached house on Main Street, Lithgow (“the Main Street house”) with the intention of stealing money that they believed to be there. The deceased was 69 years old, the accused was aged 26 and AS was aged 21. The accused and AS were each armed with a knife and the accused wore a balaclava and gloves. They entered the rear yard of the property via a laneway (“the laneway”) and gained access to the house through the back doorway, which did not have a door affixed to it. The deceased was watching television in the lounge room. He heard AS approaching him inside the house and confronted him. During the struggle, AS and the accused stabbed the deceased, who collapsed to the ground. AS removed a sum of money from the deceased’s clothing, and the accused took a bag with some thousands of dollars that she found under a mattress, either that night or on a subsequent date when she returned to the house.

2. [3]

   The deceased’s body was not discovered by the authorities until 7 September 2016. A post mortem established that the likely cause of death was blood loss from multiple stab wounds and incised wounds.

3. [4]

   In the month between the killing and the discovery of the deceased’s body, AS and the accused, either individually or together, and possibly sometimes in the company of others, returned to the residence on multiple occasions in order to search for more money, sometimes successfully. In that same period, AS and the accused admitted to having stabbed the deceased to friends, who did not believe them. Following the discovery of the deceased’s body and the ensuing media publicity of the murder, some of those friends approached police with their accounts of the admissions. Police obtained warrants for listening devices (“LDs”) and telephone intercepts (“TIs”) which captured admissions by AS and the accused.

4. [5]

   The accused and AS were arrested on 5 October 2016. AS ultimately pleaded guilty to murder on the basis that he and the accused entered the deceased’s house with the intention of stealing from him and that during the course of a struggle, he and the accused stabbed the deceased, thereby intentionally causing his death.

5. [6]

   The Crown puts its case against the accused on the charge of murder on two alternative bases. The accused deliberately and unlawfully stabbed the deceased, with the intention of causing him really serious bodily harm or his death, thereby substantially contributing to his death. Alternatively, the accused is guilty of the offence of murder by virtue of the doctrine of extended joint criminal enterprise: McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37 at 117-118. On this basis, the Crown contends that prior to entering the deceased’s house, the accused and AS agreed to steal from or rob the deceased and the accused knew that AS would be armed with a knife. She foresaw as a possibility that AS would stab the deceased with the intention of at least causing him really serious harm, but nevertheless determined to continue with their joint criminal enterprise to steal from or rob the deceased.

6. [7]

   The Crown further submits that if the Court is not satisfied that the accused foresaw the possibility that AS might use the knife to inflict really serious bodily harm upon the deceased, but is satisfied that the accused would have realised that AS’s act exposed the deceased to an appreciable risk of serious injury, the court may return an alternative verdict of manslaughter.

7. [8]

   Section 18(1)(a) of the Crimes Act 1900 (NSW) provides as follows:

8. [9]

   The elements of murder to be established by the Crown, relevantly stated, are that the accused voluntarily did an act or acts that caused the death of the deceased with the intention of causing the deceased’s death or alternatively with the intention of causing him really serious bodily harm. In certain circumstances it is appropriate for a court to have available to it an alternative possible verdict to murder of manslaughter. I will return to the elements of murder and whether an alternative basis of manslaughter is available in the evidentiary context later in this judgment.

9. [10]

   The defence did not make an opening address. Essentially, the defence case is that the accused was not present when AS went to the deceased’s house and killed him. The first she knew of the incident was when, six days later, AS informed her that he had killed someone. She determined to assist AS in avoiding arrest. She was aware that rumours circulated that AS had killed a man. At the behest of AS, she deliberately claimed to friends and family that she accompanied AS at the time and also stabbed the deceased, because she believed that doing so would “take the heat” off AS and discourage the people she spoke to from reporting AS to police. Accordingly, the defence does not dispute that admissions were made by the accused that were captured electronically but rather, contends that they were falsely made by her, for a combination of reasons. Similarly, evidence of some admissions by her that were not electronically captured are not challenged, although some of those are challenged. To the extent that the accused’s explanation appears illogical, the defence relies on expert evidence of a psychologist as to certain characteristics of domestic violence that would assist the Court in its assessment of the accused’s credibility.

10. [11]

    A central plank of the defence case was evidence of admissions made by AS prior to his arrest in which he repeatedly referred to himself in the singular as having perpetrated the murder. There is evidence that on at least one occasion prior to his arrest he expressly said he was the sole perpetrator, and that the accused was not with him.

Relevant legal principles and directions

1. [12]

   As this is a trial by judge alone, I note s 133 of the Criminal Procedure Act 1986 (NSW), which is as follows:

2. [13]

   The Crown bears the onus of proving the charge of murder and of doing so beyond reasonable doubt. The accused is presumed to be innocent and has no obligation to prove anything.

3. [14]

   I must consider the evidence impartially and dispassionately, without prejudice or sympathy to either the accused or the deceased, or to any other person.

4. [15]

   Not all inconsistencies in the evidence need be resolved. Rather, I am to determine the issues of fact that are relevant to the elements of the charge. In doing so, I bring to bear my common sense and life experience. I must not engage in speculation as to what occurred, but rather, my verdict must be based on the evidence.

5. [16]

   I must be conscious of the difference between evidence which I regard as reliable, and evidence of a witness which I accept is honestly given, but which may nevertheless be unreliable.

6. [17]

   I am not obliged to accept the whole of the evidence of any one witness; I may accept some parts as reliable and reject another part or parts which I am not satisfied is reliable.

7. [18]

   In drawing inferences, I must be satisfied that they are justifiable and drawn from the facts that I find established by the evidence. I must consider the possibility that other inferences might also be reasonable.

8. [19]

   There is evidence of three forensic experts, being a pathologist, a biologist and a psychologist. I direct myself that the weight to be attributed to the opinion evidence of the experts is dependent upon the reliability and accuracy of the material which the expert used to reach his or her opinion. It is also dependent upon the degree to which the expert analysed the material upon which the opinion was based, and the skill and experience brought to bear in formulating the opinion given. Experts can differ in the level and degree of their experience, training and study, yet each can still be an expert qualified to give an opinion where that opinion is based on that witness’ specialised knowledge.

9. [20]

   I bear in mind that if, having given the matter careful consideration, I do not accept the evidence of an expert witness, I do not have to act upon it. This is particularly so where the facts upon which the opinion is based do not accord with the facts as I find them to be. I am also, to a degree, entitled to take into account my common sense and my own experiences if they are relevant to the issue to which the expert evidence relates.

10. [21]

    The evidence in the trial included audio recordings of LDs and TIs. These, and transcripts of them, are exhibits. The audio recordings are the primary evidence. In the event that I determine that a part of the relevant transcript does not faithfully transcribe what I hear, or has words or describes sounds that I do not hear clearly or at all, I must have regard only to the audio recording.

11. [22]

    The evidence also includes audio recordings of the evidence of witnesses, the hearing of which was aided by transcripts that were created at the time by the Court Reporting Service and which were marked for identification. The same direction applies to those recordings and transcripts.

12. [23]

    I assess this evidence in the same way as other evidence. I do not give it any greater or lesser significance by reason only of the fact that it was given by way of the replay of a recording. It does not reflect adversely upon either party.

13. [24]

    If I consider myself disadvantaged by that process in making an assessment of whether I can accept what a witness said, I remind myself that the Crown bears the onus of proof in deciding whether the Crown has proved the guilt of the accused beyond reasonable doubt.

14. [25]

    I will give myself further directions at the conclusion of my summary of the evidence.

The procedural history of the matter

1. [26]

   This is the third time that the accused has been tried on this charge. The first time was a trial by jury before Schmidt J, sitting in Bathurst, in 2018. The accused was convicted of murder. On 2 November 2020, the conviction was quashed by the Court of Criminal Appeal: Douglass v R [2020] NSWCCA 284. The second trial, which was also by a jury, occurred in January 2022 before R A Hulme J, sitting in Sydney. The jury were unable to agree upon a verdict.

2. [27]

   The evidence in this trial was primarily presented by way of the playing of audio recordings of evidence given in the first trial by the witnesses, including the accused. The audio recordings were edited by the parties and tendered in the form of DVD or CD recordings, as exhibits. I am assisted by transcripts of that evidence, which have been marked for identification. I am satisfied that the passages of evidence or the content of the LDs or TIs that I have transcribed in this judgment are accurate. In addition, the evidence of some witnesses in the second trial, as well as additional evidence of some of the witnesses in the first trial, was tendered into evidence by the reading of the edited transcript of their evidence. Finally, the evidence of the current officer in charge of the investigation, Detective Senior Constable Andrew Cole, was given in person.

3. [28]

   All of the evidence in the trial was tendered without objection. There was no evidence tendered that was rejected.

4. [29]

   I was informed that the defence served a tendency notice upon the Crown prior to the first trial in respect of the evidence of AS, alleging that he had a tendency to blame other people for crimes that he committed himself knowing that the person is not responsible, nominating another person as having been involved in a crime to deflect attention from himself, fabricating accounts to implicate others as having been involved in the crime and having a particular state of mind, namely, to conceal his own guilt or conduct even if it required the inculpation of innocent people.

5. [30]

   The Crown did not respond to the notice and, in this trial at least, does not oppose the defence relying upon evidence to demonstrate such a tendency by AS and inviting tendency reasoning in respect of such evidence.

6. [31]

   I will not refer to all of the evidence in the trial in my judgment, although in considering my verdict, I have reminded myself of all of the evidence.

7. [32]

   In relevantly summarising the Crown case, I will refer firstly to the evidence of the pathologist and then to evidence of the discovery of certain items near the laneway on 9 August 2016 and then expert evidence as to DNA found on tape lifts from those items and the deceased’s clothing. I will then refer to incidents involving police and the accused on 13 and 15 August 2016, and then to evidence of admissions made by AS and the accused prior to their arrests, and the accounts they provided to police following their arrests. AS twice partook in a recorded interview by detectives who were investigating the killing. Such an interview is known as an Electronic Record of Interview with Suspected Person (“ERISP”). In addition, while on remand, AS made admissions during a conversation with a Corrective Services officer (Mr Plunkett) which, unbeknown to him at the time, was audio recorded. The accused made an ERISP some months after her arrest. I will refer to these four accounts in their chronological order.

Relevant background

1. [33]

   The accused moved to Lithgow from Sydney with her two children, who were aged 8 and 4 in August 2016. She resided at Hayley Street, Lithgow (“Hayley Street”) from February 2016, which was arranged through Community Housing NSW. She met AS in Lithgow mid-2016 and commenced an intimate relationship with him in about July or early August 2016. By 7 August 2016, the accused and AS were cohabiting in Hayley Street. At that time, the accused and AS regularly used prohibited drugs, including methylamphetamine (“ice”).

2. [34]

   The deceased’s family told police that the last contact they had with him was in a phone call on 7 August 2016, at around 10:25am.

3. [35]

   Dr Jane Vuletic performed an autopsy on the deceased’s body on 12 and 13 September 2016. She described the condition of the body as being “severely decomposed”, as a result of which she was unable to give an accurate estimate of the date of death.

4. [36]

   Dr Vuletic concluded that the cause of death was blood loss from the combined effect of “multiple stab and incised wounds”. Dr Vuletic explained what she meant by those terms:

5. [37]

   Dr Vuletic located two incised wounds. One was 5cm long on the left side of the neck below the left ear, which was no more than 5cm deep. The other, which was 4cm long, was on the right hand between the thumb and index finger. It may have been a defence injury, that is, incurred by the deceased while attempting to defend himself.

6. [38]

   She located six stab wounds. Two wounds had entered the chest cavity, meaning the space between the chest wall and the ribs. One of those wounds entered the body through the left shoulder area from the deceased’s back and terminated in the left lung, and the other entered the abdominal cavity.

7. [39]

   Other wounds were on the upper part of the left arm, the front of the chest (2cm long and 2cm deep) and the abdomen, which terminated in the duodenum, “which is the part of the small bowel leading directly from the stomach”.

8. [40]

   Another stab wound also entered the deceased’s body from his back shoulder area. Dr Vuletic was unable to measure its precise depth.

9. [41]

   Dr Vuletic said that it was not possible to identify which of the wounds could be considered fatal, due to the decomposition of the body. She considered that both types of the wounds were caused by a sharp instrument, “most likely a knife”. The width of the blade would have been between 1.5cm and 2cm. Due to the appearance of the stab wounds, consequent to the activity of maggots, it was not possible to determine whether there was one knife used, or more than one knife. I note that the width of the blade of the knife that was seized by police on 9 August 2016 is 2cm at its widest point, according to a photograph with a ruler alongside it that was tendered by the Crown.

10. [42]

    Dr Vuletic said that the eyes and conjunctivae could not be seen “at all”. She did not observe any injuries to the area of the eyes, but could not exclude an injury to that area, because, “The area of the eyes was mummified and this is that term we use when the tissues are extremely dry and dehydrated”.

11. [43]

    Dr Vuletic was questioned in cross-examination as to the possibility of there having been a sharp injury to the deceased’s eyes:

12. [44]

    In re-examination, the following exchange occurred:

13. [45]

    I note uncontested evidence from Detective Sergeant Christopher Reay (“DS Reay”), who was the initial officer in charge of the investigation, to the effect that on 9 August 2016, a gardener located a knife, a pair of gardening gloves and a beanie that had three holes cut into it for a mouth and eyes in a backyard that backed onto the laneway. The gardener photographed the items in situ on his smart phone, which were tendered into evidence. Police received the items on the same date.

14. [46]

    Ms Sesardic is a senior forensic biologist with the Forensic and Analytical Science Service, which is known as FASS. An edited version of her evidence from the first and second trials was tendered into evidence.

15. [47]

    Ms Sesardic said that buccal samples were taken from AS, the accused and others. A DNA sample was taken from the deceased. Ms Sesardic gave evidence as to the results of the analysis of samples of DNA that were lifted from various items during the police investigation and her calculations of the “likelihood ratios” of the results. Her evidence was to the following effect.

16. [48]

    A test for blood returned a positive result on both gardening gloves.

17. [49]

    A tape lift from the back of the right glove had a mixture that originated from at least three individuals. The deceased, AS and the accused could not be excluded as contributors. Ms Sesardic calculated that the mixture was greater than 22 million times more likely to obtain this mixed profile if it originated from the deceased and two unknown, unrelated individuals rather than if it originated from three unknown, unrelated individuals in the Australian population. It was greater than 100 billion times more likely to obtain this mixed profile if it originated from AS and two unknown, unrelated individuals, rather than if it originated from three unknown, unrelated individuals in the Australian population. It was greater than 320,000 times more likely to obtain this mixed profile if it originated from the accused and two unknown, unrelated individuals, rather than if it originated from three unknown, unrelated individuals in the Australian population. It was greater than 100 billion times more likely to obtain this mixed profile if it originated from the deceased, AS and the accused, rather than if it originated from three unknown, unrelated individuals in the Australian population.

18. [50]

    Tape lifts from the inside ring fingers of the right and left gloves disclosed mixtures that originated from at least the same three individuals. The relevant probabilities in respect of the inside ring finger of the left glove were as follows. The mixture was greater than 1.4 billion times more likely to obtain this mixed profile if it originated from the deceased and two unknown unrelated individuals rather than if it originated from three unknown, unrelated individuals in the Australian population. It was greater than 100 billion times more likely to obtain this mixed profile if it originated from AS and two unknown, unrelated individuals, rather than if it originated from three unknown, unrelated individuals in the Australian population. It was greater than 84 million times more likely to obtain this mixed profile if it originated from the accused and two unknown, unrelated individuals, rather than if it originated from three unknown, unrelated individuals in the Australian population. It was greater than 100 billion times more likely to obtain this mixed profile if it originated from the deceased, AES and the accused, rather than if it originated from three unknown, unrelated individuals in the Australian population.

19. [51]

    The relevant probabilities in respect of the inside ring finger of the right glove were as follows. The mixture was greater than 64 million times more likely to obtain this mixed profile if it originated from the deceased and two unknown unrelated individuals rather than if it originated from three unknown, unrelated individuals in the Australian population. It was greater than 100 billion times more likely to obtain this mixed profile if it originated from AS and two unknown, unrelated individuals, rather than if it originated from three unknown, unrelated individuals in the Australian population. It was greater than 1.1 billion times more likely to obtain this mixed profile if it originated from the accused and two unknown, unrelated individuals, rather than if it originated from three unknown, unrelated individuals in the Australian population. It was greater than 100 billion times more likely to obtain this mixed profile if it originated from the deceased, AS and the accused, rather than if it originated from three unknown, unrelated individuals in the Australian population.

20. [52]

    A tape lift from the interior cuff area of the right glove indicated the DNA profile of at least three individuals. The deceased and AS could not be excluded. The DNA of the third individual was not suitable for comparison, due to its low level and complexity.

21. [53]

    The beanie that was recovered from the same location was also tested. A tape lift from the rear left interior recovered a mixture of at least four individuals. The accused and AS could not be excluded. The relevant probabilities were as follows. The mixture was greater than 100 billion times more likely to obtain this mixed profile if it originated from AS and three unknown, unrelated individuals, rather than if it originated from four unknown, unrelated individuals in the Australian population. It was greater than 100 billion times more likely to obtain this mixed profile if it originated from the accused and three unknown, unrelated individuals, rather than if it originated from four unknown, unrelated individuals in the Australian population. It was greater than 100 billion times more likely to obtain this mixed profile if it originated from AS, the accused, and two unknown unrelated individuals rather than if it originated from four unknown, unrelated individuals in the Australian population.

22. [54]

    A tape lift from the rear right interior of the beanie disclosed a mixture that originated from at least three individuals. The accused and AS could not be excluded as contributors. The DNA of the third contributor was not suitable for comparison, due to its low level. The relevant probabilities were as follows. The mixture was greater than 100 billion times more likely to obtain this mixed profile if it originated from AS and two unknown, unrelated individuals, rather than if it originated from three unknown, unrelated individuals in the Australian population. It was greater than 100 billion times more likely to obtain this mixed profile if it originated from the accused and two unknown, unrelated individuals, rather than if it originated from three unknown, unrelated individuals in the Australian population. It was greater than 100 billion times more likely to obtain this mixed profile if it originated from AS, the accused, and an unknown unrelated individual rather than if it originated from three unknown, unrelated individuals in the Australian population.

23. [55]

    The knife that was in the same location was tested. Stains on the knife tested positive for blood. Analysis of blood on the knife established that it had the same DNA profile as the deceased. A swab taken from the top of the knife handle had DNA from at least three individuals, one from the right side of the handle had at least two contributors and one from the bottom of the handle had at least two contributors. The deceased could not be excluded as a contributor to all three swabs. The DNA from the other contributors was not suitable for comparison.

24. [56]

    Tape lifts from the front left and right of the jumper that was on the deceased’s body disclosed DNA that originated from at least two individuals. The deceased and AS could not be excluded as contributors.

25. [57]

    Ms Sesardic explained that when a person touches a surface, they do not necessarily leave their DNA on that surface:

26. [58]

    In cross-examination, Ms Sesardic was questioned about the results that did not exclude the accused as a contributor to some of the tape lifts from inside the gloves.

27. [59]

    Ms Sesardic explained the process of secondary transfer, whereby DNA from an individual may be located on a surface without that individual having had contact with that surface, through transfer by an intermediary. She also explained that tertiary transfer was possible, being a process whereby, for example, DNA could be transferred from one person to a surface, which is touched by a second person who then touches another surface, so that the DNA of the first person is placed onto that last surface.

28. [60]

    DS Reay gave evidence that the fingerprints of Valentine (“Val”) Wright were found on a box in the deceased’s house. No fingerprints of the accused or AS were located on objects in the house.

29. [61]

    On 13 August 2016, at about 11:30pm, police attended Hayley Street in response to a complaint of domestic violence. It is not apparent from the evidence who it was that called police. The accused was present with her children. Police questioned the accused utilising a Domestic Violence Evidence in Chief (“DVEC”) video which was activated at 11:47pm and which was tendered into evidence.

30. [62]

    Police asked the accused how long she had been in a relationship with AS. She replied, “Three weeks”. She said she was missing a period and thought she may be pregnant to him. She said that they had a fight two to three hours before, which started when he left and didn’t tell her where he was going. When AS returned, he wanted to have sex with her. She refused and called him a “cheating dog”. They then fought, initially with pushing and shoving. He made an insulting comment about her children, and she responded by punching him in the mouth. He then jumped on her and pinned her on the bed, holding her by her throat so that she had difficulty breathing, then punched her “in the guts”, saying, “I’m gunna kill the kiddy, you are pregnant”. She fell down and “he’s jumping on my head”. AS also punched her in the head. Police observed an injury to her lip and swelling under an eye. AS threatened to kill her children and burn down the house. As the accused related the incident, the sequence of events sometimes varied. She said that AS had not been violent before.

31. [63]

    The accused said that at one point in the fight AS took a knife that she had in the room, held it to his throat and threatened to kill himself. She took the knife from him. She said:

32. [64]

    The accused spent the next two nights at a motel. AS was arrested early the next day. He was made the subject of an Apprehended Domestic Violence Order (“the ADVO”) and released. A copy of the ADVO was tendered. It was dated 14 August 2016 at 4:56am. A condition of the ADVO was that AS “must not enter the premises at which the protected person may from time to time reside or work or other specified premises (Hayley Street)”. AS then joined the accused at the motel.

33. [65]

    The following Monday night, at 9:45pm, police interviewed the accused at Lithgow Hospital with a DVEC. She said that on that afternoon she saw AS and heard from a friend that AS had been threatening to return that night. She was afraid that he would set fire to the house while she and her children were asleep. She said that he had not breached the ADVO. She said, “I’m scared I’m gunna end up dead ... ‘cause I know what he’s capable of ... and what he’s done to other people”.

34. [66]

    The accused was also given accommodation at a motel from 9–12 September 2016 while community housing was arranged for her at Birubi Crescent, Bowenfels (“Birubi Crescent”).

Evidence of alleged admissions by the accused and AS

1. [67]

   As previously observed, the evidence of alleged admissions made by AS and the accused includes evidence given by their friends, relatives and associates prior to the discovery of the deceased’s body. The evidence of many of these conversations was unspecific as to precise dates or times. As noted, as part of the attack on the reliability of AS’s evidence, the defence relied upon evidence of conversations prior to his arrest in which he admitted his guilt and referred to the incident in terms that conveyed that he acted alone. The evidence of all of the conversations, relayed in chronological order as closely as the evidence allows, is as follows.

2. [68]

   AY is a cousin of AS. According to an aerial map of the relevant part of Lithgow, which is part of Exhibit A, (“the Ex A map”) she resided approximately 900m from the Main Street house. On 8 September 2016, she informed police of a conversation she had with AS on the evening of 7 August 2016. AY was able to fix the date because she recalled that after the conversation, she sent a message to the accused using Facebook Messenger, a printout of which is Exhibit Q.

3. [69]

   AY’s evidence was as follows. AS visited her at about 6pm that evening, at her home. He had “something to eat and drink” and after about an hour he left, saying he would return. He came back later that evening. He was “shaking and crying and he was vomiting”. AY continued:

4. [70]

   AY said the money AS threw across the floor was notes that he took from his bum-bag. In cross-examination, AY agreed that in her statement that she made to police on 8 September 2016, she stated that AS had said, “he’d stabbed him and he couldn’t stop”.

5. [71]

   Returning to her evidence in chief, AY said that AS asked her to wash his jumper, which had “a tiny bit of blood on it”. He washed his hands and face. He left, saying that “he had to go and tell his girlfriend what he had done”. AY said that AS was at her home for about 45 minutes. About an hour after he left, she sent the accused the Facebook message which is Exhibit Q, which read, “Hey, I’m [AS’s] cousin. Is he at yours?” The copy of the Facebook message indicates that it was sent “7 AUG AT 21:55”. AY said that she sent the message because:

6. [72]

   I note that, according to her evidence as to times and working backwards from the time indicated on Exhibit Q, AS was away from her house that evening between approximately 7pm and 8pm, which suggests that the killing occurred between those approximate times on 7 August 2016.

7. [73]

   AY said that on a later occasion she was driving along Main Street with AS. He pointed out a house. She said:

8. [74]

   AX is a sister-in-law of AS. She is married to BX, who is a brother of AS. Whilst driving a car in which her husband was a passenger, AX heard a phone call between him and AS which was on loudspeaker. She said in evidence in chief:

9. [75]

   AX continued that they drove straight to Hayley Street, where AS was living, and she parked opposite. She continued:

10. [76]

    About a week later, after dropping off one of her children at school, she saw AS and the accused in Main Street Lithgow and offered them a lift. As they drove along Main Street, AS, who was seated in the front passenger seat, pointed to a house and said: “that was the house that it happened at”. AX said that the accused, who was sitting in the back seat, laughed. About three weeks later, the murder was on the news.

11. [77]

    AX said that AS and the accused stayed with her and her husband the night before they were arrested, and for the week prior to then, they stayed with an aunt of AS, who lived in the same street. The day before their arrest, that is, on 4 October 2016, the accused used a pregnancy test, which was positive. She and AX then had a conversation about “children … money situations and everything like that”. AX’s evidence was:

12. [78]

    AX continued that the accused said that the money was “From a Subway bag under the bed of the man that got stabbed”. AX said that she and the accused then had a further conversation about what had happened:

13. [79]

    In cross-examination, it was put to AX that the accused was not in her car when AS pointed out the house, and there was no discussion between her and the accused about the accused’s role, if any, in the killing. She adhered to her evidence, saying, “[AS] stated about the murder and he also stated when Ammie’s involvement so I thought I’d ask Ammie myself”. Counsel for the defence put to AX that:

14. [80]

    Counsel for the defence read to AX from her statement other aspects of her version of what the accused had told her, with which she agreed:

15. [81]

    Counsel for the defence noted that in her statement AX said that the accused told her that she and AS returned a few days after and started “chopping him up in bags and couldn’t get through the bone”. It was put to her that the accused’s account was what AS had told her, not the accused. She responded, “No that was something that Ammie stated at my bench that day. I clearly remember it, traumatised my brain for a year and a half”.

16. [82]

    AX said that she contacted Crime Stoppers the same night as that conversation. I note that DS Reay gave evidence of calls made to Crime Stoppers, and that none corroborated AX’s claim of contacting Crime Stoppers.

17. [83]

    BX gave evidence to the effect that AS admitted to being involved in the murder, in the following terms:

18. [84]

    BX could not recollect if that conversation happened before or after the murder was in the news. BX said that while AS and the accused were staying with him and his wife, the night before they were arrested, they had a conversation with the accused:

19. [85]

    In cross-examination, it was put to BX that he and AX did not have a conversation that night with only the accused, but rather with both the accused and AS, and the conversation was not as he related, but instead, was along the following lines:

20. [86]

    BX disagreed.

21. [87]

    Mr Hassen gave evidence that he had known AS for most of his life. He said that “a couple of weeks” before police discovered the deceased’s body, he had a conversation with AS. Mr Hassen was at his home in the presence of his partner, Naomi Pender, and a friend, Jodie Collins. AS arrived and asked to speak to him in private. Mr Hassen responded: “Just say it [AS]”. AS said, “I fucked up, I stabbed someone over owing me money for Shard”. Mr Hassen said that he understood the word “shard” to mean “ice” (methylamphetamine). Mr Hassen made a statement to police on 30 September 2016.

22. [88]

    DS Reay agreed that Naomi Pender had given a statement to police on 30 September 2016 in which she said that AS had visited her and Michael Hassen, and when told to “Just say it”, said, “I fucked up, I fucked up, I stabbed a bloke. It’s over, he owed me money I stabbed him”.

23. [89]

    DS Reay agreed that on 27 September 2016, Christina Hardwick, who is the mother of Jake Dukes, made a statement in which she said that in August 2016, AS visited her. She said:

24. [90]

    Ms Hardwick told police that AS then went into a separate room to speak with Jake Dukes and his girlfriend.

25. [91]

    Mr Dukes gave evidence in the second trial. His evidence was tendered and read in this trial. His evidence was that one night at about 10pm in early August 2016, AS arrived at the place where he lived with his mother, siblings and his girlfriend, who has since died. Mr Dukes said:

26. [92]

    Mr Dukes said that three days to a week later, he saw AS again. While they were walking through an alleyway near Cooerwull school, AS pointed out a house and said: “That’s where the body is”. Mr Dukes said that two to three days later, AS phoned him and asked if he could babysit for them “so they could go and move that thing”. Mr Dukes replied, “‘Yeah, we can; just let us know when you want us to come over and watch him’, and they said, ‘Okay, well, we’ll call you back then’”. He said that although the call was from AS, he was using the accused’s phone and “you could hear Ammie”. The accused rang back later that night or the next night, saying “can we go over and watch the kids now”. She said, “she’s got to go and move that thing in the car”. Mr Dukes said they did not end up going over there.

27. [93]

    An edited call charge record for a phone used by Mr Dukes was tendered, which recorded six voice calls from the accused’s phone: one on 12 August, two on 17 August and three on 18 August 2016. The calls on 17 August were at 2:13pm (26 secs) and 4:50pm (24 secs). The calls on 18 August were at 3:17am (23 secs), 10:50am (46 secs) and 5:45pm (51 secs).

28. [94]

    Ms Hinds is the accused’s sister, the eldest of four siblings. She gave evidence that she had a phone conversation with the accused during which the accused said that she had been assaulted by AS. When asked to recall the conversation, Ms Hinds relevantly said:

29. [95]

    Ms Hinds then gave a further account of what was said:

30. [96]

    Ms Hinds was shown a statement that she made to police on 6 October 2016 and was invited to refresh her memory from it as to what was said. She then gave this account:

31. [97]

    In cross-examination by leave by the Crown Prosecutor, Ms Hinds agreed that before that part of her statement, she had stated, “[AS] done something bad and I was in the wrong place at the wrong time, because I know about it I am scared to move”. That was followed by, “I said, ‘Just pack your stuff and come live with me’. She said, ‘[AS] said he would put me 10 feet under’ and Ammie was crying as she said this”.

32. [98]

    Ms Spittles said that she met the accused through a friend, who was the accused’s cousin. On a date that she did not recall, but which was established by uncontested evidence to have been 29 August 2016, she travelled from Bathurst to Lithgow to meet the accused, arriving around 1pm. During their meeting, they had a conversation. The only other person present was the accused’s younger son. The older son was at Cooerwull Public School. The accused said that she and AS “had done a break and enter and it went wrong”. Ms Spittles continued:

33. [99]

    Ms Spittles said that as they walked down Main Street, the accused pointed to a house that was near the school and said, “That’s the house where it happened … could I go and pick [her older son] up while she went back in there … to see if she could find things in there”. In cross-examination, Ms Spittles agreed that according to her statement, the accused said, “this is the house here, do you want to come in and have a look?” When it was read to her by counsel, she replied, “Yes, actually I can remember that”.

34. [100]

    Ms Spittles said that the accused walked up a laneway while she continued with the accused’s younger son and picked up the accused’s older son and, as they started walking out of the school’s side gate, the accused emerged from the laneway behind the houses. As they walked along Main Street, Ms Spittles asked, “what did you see in there and she said he was dead and I had to put a piece of newspaper over his head so I didn’t have to look at him”.

35. [101]

    Ms Spittles approached police on 18 September 2016 about what she had been told. She agreed that she had been charged with assaulting the accused. She said that incident occurred after 18 September 2016.

36. [102]

    In cross-examination, it was suggested to Ms Spittles that she went to police on 18 September because she had a grudge against the accused and wanted to “get back” at her. Ms Spittles agreed that she was using ice at that time, in large quantities and that on the day she met with the accused, she had smoked marijuana. She disagreed that it had “some effect” on her. It was put to her that the accused did not go to the house. Ms Spittles agreed that her statement did not refer to the accused emerging from the laneway. She agreed in cross-examination that there were other references in her statement to what the accused had told her she did in the house: “‘yeah it was yucky I nearly trod on his head’, it was like, I’m like ‘what the, it was like squishy”. Her evidence was that those things were also said. She agreed that the reference to putting the newspaper over his head was not.

37. [103]

    Counsel for the defence put to Ms Spittles a version of events concerning the assault by her of the accused. Ms Spittles advanced a version which I find to be unlikely.

38. [104]

    Counsel for the defence put to Ms Spittles a different version of what was said that day by the accused to her, which was as follows. She said to the accused: “Have you heard the rumours? Apparently, [AS] killed someone”. The accused replied, “Really?” Ms Spittles said, “Yeah, you know where [your older son] goes to school, it’s near there”. As they walked to the school, Ms Spittles pointed out to the accused the deceased’s house. She and the accused then walked down the alleyway behind the house and looked into the back yard. Ms Spittles rejected that version of events.

39. [105]

    Paul McLeay did not give evidence in the first trial. A medical certificate was provided to police stating he was unfit to attend the trial. He was called in the second trial. His evidence was tendered and read in this trial. It was to the following effect.

40. [106]

    Mr McLeay knew AS for about 10 years and early in 2016 he was introduced to the accused. Towards the end of August 2016, while driving in Lithgow, he saw the accused. He pulled over and spoke to her, and shortly afterwards he was at Hayley Street with the accused and AS. He and AS smoked marijuana with a bong. Immediately before they did that, AS said he had murdered someone. Mr McLeay said he “more or less called him a liar” and left shortly afterwards. The accused was not present in the room during that conversation. He said:

41. [107]

    Following an application by the Crown Prosecutor pursuant to s 32 of the Evidence Act 1995 (NSW), Mr McLeay was invited to refresh his memory from his statement. He said:

42. [108]

    Mr McLeay gave evidence of another conversation with AS in late September 2016 at Birubi Crescent. AS said, “We done a robbery and I knew the guy, I stabbed him”.

43. [109]

    In cross-examination, Mr McLeay said that in August 2016 he was at a low point in his life and he may have been feeling the effects of ice on the day that he went to Hayley Street.

44. [110]

    AV gave evidence of an admission made to him and Val Wright by AS on 6 September 2016. He was questioned about the conversation as it appeared in a statement that he made to police the following day:

45. [111]

    Mr Sharwood gave evidence that he was in the same “friendship group” as AS. He saw AS and the accused at Lithgow train station at about 5:15am one morning around two months before he made a statement to police, which was on 24 October 2016. Mr Sharwood thought that he had visited the accused’s residence twice before that morning, and thus knew her. AS asked him if he could “get any marijuana” and showed him an amount of about $2,000 in cash, in $20 and $50 notes. They eventually made their way to the accused’s residence at Hayley Street, where he asked AS where he got the money from. AS replied, “I murdered this cunt bro”. The accused added, “You’re lucky I stabbed the dog in the eye”. AS also said: “I just kept stabbing him, the cunt was going down and I kept on stabbing him. … I didn’t know how old the cunt was”.

46. [112]

    AS said, in relation to the money: “he could keep returning, that no-one knew where it was, so he could keep returning and getting more and more”. Mr Sharwood said that he heard about the murder on the news. Afterwards, he saw AS, who seemed “very agitated”. Mr Sharwood said he realised that AS and the accused had been serious about what they said they had done. That evening, he phoned police and told them about the conversation he had with AS and the accused.

47. [113]

    A man who I will refer to as BY, who is a cousin of a woman I will refer to as AY, has known AS all of his life. BY gave evidence of a conversation that he had with AS after he heard about the murder in the media. He said that AS visited him. BY noticed that AS had a knife with a serrated blade in the front of his pants. AS asked BY if he had seen John O’Heir. BY replied that he had not, and asked AS if he had heard about the murder in Lithgow. AS replied: “Yes I was involved, I stabbed the bloke 14 times around the throat”. BY’s evidence was that he was shocked and asked him to leave.

48. [114]

    Keith Anderson, who is known as “Gaffa”, made a statement to police on 6 October 2016. In his evidence he agreed that in his statement he referred to a conversation that occurred in Hayley Street about six weeks previously, which I note would have been in late August 2016. Present were AS, the accused, AV, and “a few others”. He agreed that in his statement he related a conversation between AS and AV, in which AS said:

49. [115]

    Mr Williams agreed that the Bunnings shop was “somewhere near” a house he knew in Main Street. Other evidence established that particular house was next door to the deceased’s house.

50. [116]

    Mr Williams gave evidence that in August 2016 he, AV and “Gaffa” had a conversation with AS in Hayley Street. It was the first time that he had met AS. The accused was in the same room, but did not say anything during the conversation. Mr Williams said:

51. [117]

    Mr Williams agreed that he had been charged with using some of the deceased’s credit cards.

52. [118]

    Mr Drury made a recorded interview with police on 1 November 2016. He gave evidence that he knew AS and of a conversation he had with him, after police had found the deceased’s body. Mr Drury said that he had heard an allegation that AS had committed the murder. He asked AS: “Did you do it or not?” Mr Drury agreed that the contents of his interview, as to what AS said, were correct. The relevant aspect of his interview was as follows:

53. [119]

    Mr Drury said that AS told him the motive for the attack was “Money. He owes him money for drugs”. Mr Drury said he asked AS if there was anyone else involved. He said AS replied: “Mick Williams and that chick that he was with”. Mr Drury was asked:

54. [120]

    BW gave evidence in the second trial. A transcript of her evidence was read in this trial. Her evidence was as follows. She is a sister of AS’s mother and considered herself to be close to AS. About a week after media reports of the murder in Main Street, she was told by AS’s mother that he was implicated in the murder. On a night in late September, she received a call from AS, asking if he could visit and introduce his girlfriend. He arrived about 20 minutes later. As they sat in BW’s loungeroom with her partner (since deceased), she said:

55. [121]

    AS and Ammie then left, arguing as they did so. She said that either that night or the next day she contacted Crime Stoppers, “explained my situation and asked to remain anonymous because I didn’t want repercussions from my family and I made the report to Crime Stoppers”. It was common ground that Crime Stoppers had not produced a record of the call she allegedly made. It was put to BW in cross-examination that the accused had not said that she stabbed someone in the eye or the back. She disagreed, saying:

56. [122]

    Ms Morris gave evidence that she had known AS since he was aged 15 or 16. About three weeks after the killing, AS visited her and her partner. She agreed that the contents of a statement she made to police in late September 2016 were correct as to the conversation that ensued. AS told them:

57. [123]

    Police located the deceased’s body on 7 September 2016. Police tape was placed around the premises.

58. [124]

    Following the discovery of the deceased’s body by police, LD and TI warrants were obtained. Some conversations between the accused and others that occurred on and after 7 September 2016 were captured. In some conversations, the accused allegedly either admitted stabbing the deceased or otherwise implicated herself in the killing. In others, she denied any involvement in the killing. In addition, witnesses gave evidence of uncaptured conversations with the accused discussing the incident. Most of these were not specific as to when they occurred.

59. [125]

    AY gave evidence that on 7 September 2016, she drove past the house and noticed that police were there. She told AS who, she said, “didn’t really care”. AY said the following day, she went to the police “and told them everything I knew”, because she had seen a Facebook post “saying that there had been a man murdered in the house”.

60. [126]

    In a conversation that was recorded on a LD by police in the accused’s residence, the accused and AS were informed by AV that he had just seen police “Where you done that thing, you haven’t moved that body yet have ya? Cause there’s fuckin Cops around that joint”. The following conversation occurred:

61. [127]

    Later, the accused said:

62. [128]

    The accused is not heard to contradict AV’s observation. I note that Val Wright gave evidence that he had given the accused a tattoo on her hand, “roughly a week” before “the tape went up” on the Main Street house. He said that he gave it to her at her residence in Hayley Street. It was not suggested to him in cross-examination that he was mistaken as to when he gave the accused the tattoo.

63. [129]

    At a later point, the accused said:

64. [130]

    Later, the accused said:

65. [131]

    The accused and her older sister, Cheyenne Hinds, had a phone conversation that commenced at 11:52am:

66. [132]

    Later in the same call, the accused referred to AS:

67. [133]

    In a phone call that commenced at 4:46pm the same day, the following conversation occurred:

68. [134]

    At 5:31pm, AY phoned AS. During their conversation, the following exchange occurred:

69. [135]

    AS was recorded in a phone conversation with a woman who in evidence he agreed was a “trusted friend”, just before midnight on 11 September 2016, in which he related his role in the killing. He said:

70. [136]

    The accused’s mother, Coral Douglass, phoned the accused and told her that police had phoned her. Her mother is referred to as CD in the transcript of the conversation. The conversation continued:

71. [137]

    During this conversation, the following exchange occurred:

72. [138]

    The accused phoned AS’s mother, AW, at 10:35pm, asking if she knew where AS was. During the conversation, the following exchange occurred:

73. [139]

    The conversation continued:

74. [140]

    During a phone conversation the accused told Mr Anderson, who in evidence she said was in Queensland at the time: “Did you know I’m a murderer? … I’m coming to Queensland to hide. No, I’m jokin’. I’m coming to see ya. … I’ll go on the run”.

75. [141]

    During a phone conversation between the accused and her sister, who is referred to as CH in the transcript of that conversation, the following exchange occurred:

76. [142]

    During the execution of a search warrant on the accused’s residence, for which she was present, police located the deceased’s Medicare Card next to a proof of age card in the name of the accused. The accused offered that she found it on Main Street “near where the crime scene was”. The following conversation ensued with DS Reay:

77. [143]

    She said that she found the Medicare Card about two months earlier.

78. [144]

    Ms Sesardic gave evidence that swabs that were taken from the front and back of the Medicare Card yielded a DNA profile that was the same as that for AS.

79. [145]

    During a phone conversation with her sister Cheyenne Hinds, referred to in the transcript of the conversation as CH, with AS in the background of the accused’s location, the following exchange occurred:

80. [146]

    Later in the call:

81. [147]

    Dr Vuletic agreed, in cross-examination, that there were no wounds consistent with an attempt having been made to cut up the deceased’s body.

82. [148]

    In a conversation captured between AS and AV on 29 September 2016 on a TI, AS referred to someone having spoken to him about missing power tools and AV. AS told AV that he would re-contact that person and suggest that another person, who he and AV knew, was responsible for the missing power tools. Counsel for the accused suggested that the call was evidence that AS had a tendency to blame others for criminal offences, knowing that the person was in fact not responsible for the offence.

83. [149]

    In cross-examination, AS agreed that he and AV would sometimes steal power tools and other items from sheds. In relation to this telephone intercept, he agreed that he told AV that, in order to protect him, AS would suggest to others that a particular person he knew, and he knew to be innocent, was responsible.

84. [150]

    In cross-examination, AY agreed that the day before the accused and AS were arrested (which would have been 4 October 2016), she visited BX, who was AS’s brother, and his partner AX, and while she was there she spoke to the accused. AY was asked whether she said to AX: “[AS] had killed someone and wasn’t she a bit worried about being with him in those circumstances”. AY said she did not remember saying that, but she could have.

85. [151]

    During a recorded conversation between AS and AY on that date, the following was said:

86. [152]

    In relation to the Medicare Card, this conversation occurred:

87. [153]

    Further on:

88. [154]

    In cross-examination, AS said that in this call, he was pretending to AY that the accused was not present at the killing, because he thought she was “wearing a wire, she’s a dog”.

89. [155]

    About four hours after his arrest, AS participated in an ERISP with police. He denied any involvement in the murder and nominated his brother AZ, John O’Heir and Michael Williams as being responsible for killing the deceased, the motive being a debt of $5,000 that the deceased owed his brother and one of the other two. AS said he was offered money to kill the deceased.

90. [156]

    AS said his drug dealer used to live next door to the deceased’s house. He knew the deceased to say hello to, and that what happened to him “crushes me heart”.

91. [157]

    AS told police that he and the accused had been “together” for “eight, nine months” and that the day before his arrest they had discovered that she was pregnant.

92. [158]

    When shown photographs of the beanie, gloves and knife, AS said that the beanie belonged to his brother, who had cut three holes into it in his presence using AS to get the hole positions right for the eyes and mouth, so that it could be used as a balaclava. He said the gloves looked “exactly the same” as gloves owned by his brother that he had previously borrowed. The knife looked like “one out of [BZ’s] drawer”.

93. [159]

    Police told AS that they had received information that he had admitted stabbing the deceased to death. Initially he denied that he had made such admissions, but when police told him that, since 7 September 2016, some of his conversations had been covertly recorded, he offered that he may have told one person, he could not recall who, that he was responsible for the killing, “to see what would be said”. AS expanded that number of people he falsely confessed to, saying:

94. [160]

    Later in the ERISP, AS said he owed BZ “a very lot of money”, which he then said was $200, which is why his brother had threatened him and his family. He said that his brother told him he had killed the deceased “a couple of days” after it happened. AS explained that BZ told him that he had stabbed the deceased in the face and chest. He agreed with BZ that he would tell people that he had killed the deceased, in exchange for BZ wiping the $200 debt and not killing AS’s family. BZ went into “full detail” to him about the killing, which is what he then told others, including AY.

95. [161]

    Police informed AS of the admissions made by the accused in the TI of the call between her and her sister, recorded on 7 September 2016, where he could be heard to be present. AS said:

96. [162]

    At the conclusion of the ERISP, AS asked if he could “quickly say hello to Ammie” in the cells. Police responded that it may be possible.

97. [163]

    On 10 October 2016, AS had a conversation with a Corrective Services officer, Mr Plunkett, which, unbeknown to AS, was audio-recorded. The recording was an exhibit in the prosecution case. AS said that he wanted to “tell the truth”. He said he had been under the influence of prohibited drugs at the time of his first ERISP, but now he was “clean”. The account that he gave was that on 7 August 2016, he received a phone call from BZ to meet him. He, BZ and AZ (a brother of BZ) went to the premises to rob the deceased. They approached the house from the laneway. BZ and AZ watched the deceased, who was having a drink and watching TV, for about one and a half hours, then went inside. AS waited at the back door. They called him in. As he entered, the deceased got up, turned around and saw them. AS said, “[BZ] ran at him, stabbed him”. The first stab was to the “face or something” and later stabs were to his body. He used a kitchen knife which police have located. AS was wearing a balaclava and gloves.

98. [164]

    BZ told AS that he would have to dispose of the deceased’s body, otherwise, BZ said: “I’m gunna tie your family up. I’m gunna rape ‘em and then tie your kids up”. BZ and AZ then left, taking AS’s phone with them. The deceased was still alive. AS said: “I tried to sing out for help. I didn’t wanna leave him on his own cause I knew he was seriously injured”. However, he covered the deceased with newspaper and left.

99. [165]

    AS said he “didn’t have the balls” to get rid of the body so he told BZ that “I’ll take the rap if you leave my family alone”. He and Ammie both started getting death threats because she was supposed to help him get rid of the body, but he had not told her that she was supposed to be helping him dispose of the body. He said:

100. [166]

     AS said that the accused was at home during the killing.

101. [167]

     AS said that they located $58,000. He received $2,000 of that for his part in the robbery. He went home at about 1 or 2am, rang a taxi and went out to get ice and takeaway food.

102. [168]

     The accused declined to be interviewed following her arrest, thereby exercising her right to silence which every accused person enjoys. I direct myself that I must bear in mind that the accused’s silence at that juncture cannot be used against her in any way at all.

103. [169]

     On 18 November 2016, the accused informed police that she wished to be interviewed. An ERISP with the accused took place on 6 December 2016. She informed police that her participation was contrary to the advice of her legal representative.

104. [170]

     The accused told police that she had not seen a fact sheet or any part of the prosecution brief. Her account to police was as follows.

105. [171]

     The accused moved to Lithgow in about September or October 2015. She had been living “in and out of refuges” and had suffered domestic violence. She met AS through a friend and started talking to him at the end of July 2016. She was informed by police, as to the date of the murder:

106. [172]

     The accused described an incident that occurred after she and AS had “just started” a relationship when he told her, “I’ve killed someone”. She asked “who?” and he said, “I killed some old man … I stabbed him … I had to do it”. Police asked her how long AS had been coming around to her house before this conversation occurred. She replied, “Ummm … Not even a week”. She said that she told AS that she did not want him in the house, and they then physically fought: “we both punched on”. During the fight, “he was full jumpin’ on my head”.

107. [173]

     The accused agreed that police became involved, and was told by the interviewing police that she reported an incident to police on 13 or 14 August 2016. She said that AS smashed her phone but she had another one, which she used to call police.

108. [174]

     The accused said that they had been together at that point for “not even a week”. She agreed that, as a result of the incident, an ADVO was taken out which included a condition that AS not contact her or be at a place at which she resides. She said that she continued to associate with him because “I didn’t know what to do … I was too scared to say something to the police … cause I was still smokin’ ice and that”.

109. [175]

     The accused was asked when they commenced a “full-on relationship” and responded, “Not long after he told me that”. She said that she heard “rumours” from people who came to her house; AV, Paul McLeay, and “Val” (Valentine Wright). She said that the night AS attacked her, she was taken to hospital because she blacked out. In early September, she was taken to a motel for two nights, and from there to another house in Birubi Crescent, Lithgow. She was asked if that was an opportunity for her to “get away” from AS. She responded that she did not know what to do. She agreed that AS went with her to the motel and stayed with her when, later, she moved into Birubi Crescent.

110. [176]

     The accused was asked if she had been scared of AS. She replied:

111. [177]

     The accused said that she did not realise there was “a body in Main Street” until she saw the house “taped off”. She had an impression that AS committed the murder together with AZ and BZ. AZ did not admit that to her, but he did tell her that “they went to the house, him and [AS]” and “he and his girlfriend left town straight away I thought, nuh, something’s sus”.

112. [178]

     The accused said that AV came to her house and said police were “at that place”. He, Val and Keith Anderson gave her advice:

113. [179]

     I note that AV, in his evidence, denied that he had ever told the accused that AS had killed someone and that she needed to be careful.

114. [180]

     The accused said that after this conversation, she and AS walked past the house. When she saw the police tape, she realised that was the house where the murder had occurred. She had been to the front door of that house once before, when one of her sons threw things “into the yard”. She went to the front door and knocked, but there was no answer. She had walked “down the back alleyway”, from which “you could see to the backyard”. She described it as having a lot of rubbish and the grass being long.

115. [181]

     The accused said that once she saw the house taped off, she realised that AS had been truthful in telling her that he had killed someone. Her reaction was that she was “scared”:

116. [182]

     The accused was asked why, if she wanted to get away from AS, she allowed him to stay with her when she moved to Birubi Crescent, which was about a week after the police tape was on the deceased’s house. She replied, “Like, I dunno … I had nowhere to go, like”. She said that she was told by her caseworker to “stay there and put in for a transfer”:

117. [183]

     She continued:

118. [184]

     In relation to police finding the deceased’s Medicare Card at her place during the execution of the search warrant on 27 September 2016, the accused said she did not know it was there. When police found it and questioned her, she made up a story on the spot:

119. [185]

     The accused said that “I was tryin’ to get the heat off him ‘cause I knew that my sister knew. Like, she knows when I lie”.

120. [186]

     Police asked the accused to confirm what she had told them on 18 November 2016, when she said that she told them she wished to partake in an interview:

121. [187]

     I note that DS Reay gave evidence in the first trial that police were unable to locate the person that the accused referred to as residing in Piccolo Way, but that she was subsequently identified as BW and gave evidence in the second trial. I referred to her evidence earlier in this judgment. In the second trial, counsel for the defence did not put to BW this version of the conversation with BW that the accused had given in the first trial.

122. [188]

     The accused said that AS told her to tell people that they both committed the murder. Police asked her to explain why she would do that. She explained:

123. [189]

     The accused said she was aware that police had recorded the conversation between her, AS, AV, Val Wright and Keith Anderson on 7 September 2016. She was asked if she recalled what she had said and replied:

124. [190]

     Police told the accused that during the conversation she had said words to the effect, “So the face mask is there anyway so I’m gone. The face mask with my DNA on it, I left it in the yard”. She was asked why she would say that.

125. [191]

     Later in the interview, she said that “I knew from what he said that he had a mask or whatever”. The accused was asked if she was aware that police had seized a beanie, knife and gloves. She agreed that she knew that. She was asked if she had any connection with the beanie and gloves. She replied that AS had borrowed “a beanie and gloves off me heaps of times”. The gloves were black. Later in the interview, she was shown photographs of the beanie and gloves that were located in a backyard off the laneway on 9 August 2016. She identified the gloves, which I note are white with a yellow trim around the cuffs and blue-coloured (presumably) grip dots, saying:

126. [192]

     She said they were given to her by AV, who would bring her “stuff from the Vinnies bins”. It was one night that AS left her house with AZ that he asked her if he could borrow them, but she did not recall the date. I note that initially the accused said: “I’m not sure if it was the night that [AS] bashed me”. It was later repeatedly put to the accused that she had said it was the same night as the incident that led to the AVO, to which she agreed. However, I am not satisfied that she intended to convey that she was certain that AS requested the gloves on that night and I disregard her agreement to the proposition that it was.

127. [193]

     Shortly afterwards during the interview, the accused said she had not seen the gloves before.

128. [194]

     The accused was informed that police had been told that a DNA profile that was obtained from the beanie matched a DNA sample taken from her. The accused said: “the beanie’s probably a beanie that he’s borrowed off me from the house. … he’s asked me for a beanie heaps of times when he’s come to and from my house.”

129. [195]

     The accused said that she did not recognise the knife and the beanie was not the one she lent AS.

130. [196]

     The accused said that AS had told her that he intended to say that BZ had committed the murder. She said that she had seen BZ walking out of the deceased’s house.

131. [197]

     The accused was asked about the phone call with her sister on 10 September 2016 at 4:46pm. The following occurred:

132. [198]

     The accused was asked why she had changed her mind and was now implicating AS. She explained: “Stupid me thought, oh, he loved me and now that I’m not on drugs, my head’s clear and I realise that he’s just lied to me and set me up”.

133. [199]

     AS asked police for a further interview, which occurred on 31 May 2017. He said that he had received “my whole brief, the whole lot, DNA, everything, all the photos” and had read “all the statements, everything”. He qualified that claim by saying he hadn’t read “the one from Bathurst”, which I presume is the transcript of his conversation with Mr Plunkett. He told police that he wanted to “come out with the truth”.

134. [200]

     AS said that he had been in a relationship with the accused since June 2016. At the time of this interview, he had ceased contact with her. When asked if the relationship had become hostile or strained, he said that she had caused him “a lot of dramas” in gaol, including “she’s nearly got me taken out at Bathurst. I was gunna get stabbed in Bathurst”. He said he believed that the accused had been having sex “behind my back” with AV and others, while they were together. He said that the father of her baby could be “[AV’s], Val Wright’s, [BZ]”. He also said that he had read her ERISP.

135. [201]

     AS said that he had been to the deceased’s property previously, and stolen money from his car. As to the killing of the deceased, and the events leading up to it, he said:

136. [202]

     I note that in his evidence, AV denied ever telling AS that a man who lived at Main Street had a lot of money in his house.

137. [203]

     AS said that the plan was to get money to buy drugs for himself, AV and the accused. AV “looked after Ammie’s kids” while AS and the accused drove off to the Main Street house. They parked on the other side of the railway, walked over the footbridge and into the laneway.

138. [204]

     AS said that he was unarmed with no special clothing, but the accused “had a knife on her, she always carried a knife on her … at all times”. She brought the knife from her house. AS had seen it previously “numerous times”. Later in the interview, he said he saw that the accused had the knife when they were in the car, driving off to commit the theft:

139. [205]

     AS said, “Our intentions were to only go there and get money and leave straightaway”. Later, she said, “a break and enter to get money, that’s all it was mean to be” and “No one was meant to get hurt at all”.

140. [206]

     AS said that the accused “put a balaclava on and gloves”. She had cut holes in the balaclava “a couple of weeks prior” because she, AS and AV had intended to enter an abandoned house at Mount Victoria to take antiques. AS said, “I said to her [AV] told us, … no one should be home so you don’t need a balaclava. She goes, I’ll just wear it anyway just in case”.

141. [207]

     AS said that “years ago” his drug suppliers had also told him that there was “money in the house”.

142. [208]

     AS gave a more detailed account of the killing, as follows:

143. [209]

     And later:

144. [210]

     AS said that while the deceased was on top of him, he could see the accused at the lounge room doorway. AS removed money from one of the deceased’s pockets, then the accused was alongside him apparently stabbing the deceased, although he did not see her do so. The deceased stood up and faced the accused and then fell to the floor. AS said to the accused: “Don’t, stop, what the fuck are you doin’?” AS went outside, vomited in the backyard and then searched the deceased’s car for more money.

145. [211]

     AS said that he took about $6,000 from the deceased that night. Of that amount, around $500 or $600 was in the deceased’s pockets and the rest was “sitting on the armchair”. He said:

146. [212]

     AS said that when they left, while he was still with the accused, she threw the knife, balaclava and gloves over a fence, which he indicated on a diagram.

147. [213]

     After he left AY’s house, AS returned to Hayley Street. AV had left. AS said: “I went back home, waited for Ammie to get back with my car, she had the ice, I had a shot of ice because I inject, shoot up”. He said they argued, because she had stabbed the deceased.

148. [214]

     AS said that he told AV “exactly what happened”, but he did not believe AS. He told the others, being AZ, Mick Williams and Val Wright, that “someone got killed there but I never said to ‘em specifically that I done it”. AS said he never had an intention to move the body.

149. [215]

     AS said that the accused took the Medicare Card. He saw it for the first time at Birubi Crescent. He asked her why she had it, and she responded that she thought he could use it to “get mobile phones”.

150. [216]

     The first time AS went back to the house was “a day or two after”. He confirmed that the deceased was dead and covered his body with newspapers and an armchair and “got money”. AS said that over the ensuing weeks he took “close to $58,000 out of his house. I put it through the pokies, drugs”. He said that he and his brother removed a “Subway bag full of money” from under a bed. AS said that on other occasions, he went to the house with AV, Val Wright, Mick Williams and the accused. He said that Val Wright was “sleeping with Aimmie behind my back”.

151. [217]

     AS was asked why he had not previously mentioned the accused’s involvement in the killing to police. He replied:

152. [218]

     AS was shown a photograph of the deceased’s jumper which had small slit holes in its front. AS was asked whether the accused had managed to stab the deceased in the front of his body. He agreed that she had.

153. [219]

     AS said that he “most likely” came into contact with the beanie and gloves that the accused wore because he used to borrow a beanie and gloves from the accused, for motorcycle riding.

154. [220]

     In relation to his first ERISP, AS said he did not know why he had said that BZ was spending time at the deceased’s residence. He said that John O’Heir and BZ “had it in for me because I was selling ice”. He agreed that everything he had said or suggested in his first ERISP about John O’Heir, BZ, AZ and Mick Williams being involved in the killing was untrue. He was asked:

155. [221]

     AS said that what he told Mr Plunkett was also fictitious.

156. [222]

     AS said he had not told others about the accused’s involvement in the murder because he loved her, because of threats from her against his children and threats from her family and the accused’s ability to beat him in a fight.

157. [223]

     AS agreed that he received a reduction in his sentence of 13 per cent, for assistance in the form of giving evidence against the accused. His evidence was to the following effect.

158. [224]

     He had been to the deceased’s property once before, when he went to a shed in his backyard and stole $4,000 – $5,000 in cash from the deceased’s vehicle.

159. [225]

     AS said he and the accused commenced a relationship about two weeks before the murder. They resided in Hayley Street. At the time, he was a user of the drug ice. A week before the killing, he told the accused: “I know where there’s a house on Main Street where there’s a large sum of money and I’m going to rob it”. The accused “agreed to come to the house to rob the house with me”. On the afternoon in question, he walked from Hayley Street to AY’s house and stayed there “until on dark”. When AS left AY’s house, he met up with the accused outside and they walked from there to the deceased’s house, which took five to 10 minutes. They were each armed with a kitchen knife. The accused carried hers down the front of her pants. She also had a pair of gloves and a balaclava, which they had both made by cutting holes into a beanie.

160. [226]

     AS and the accused approached the deceased’s house via the laneway. There was no gate from the laneway to block access into the deceased’s backyard. AS left his bum-bag on the front seat of the deceased’s car which was in a shed and then entered the house, with the accused following immediately behind him. When he reached the loungeroom doorway, with the accused still right behind him, he saw the deceased seated on a lounge. A television was on, which was “loud”. AS stood in the doorway for “longer than ten minutes”. He then turned to leave, accidentally kicking some bottles. The deceased stood up and asked who they were. AS demanded “Where’s the fucking money?” The deceased replied: “There’s no money”. AS took a few steps towards the deceased:

161. [227]

     AS said that the deceased punched him back and they pushed and shoved each other. AS continued that the accused: “eventually … come into the lounge room after I stabbed him twice and then Ammie stabbed him as well”. He could not recall how many times she stabbed him, or whereabouts on the deceased’s body. The deceased was standing when she stabbed him, and then he fell to the ground. AS was asked:

162. [228]

     AS retrieved his bum-bag from the deceased’s car, put the cash in it and they left through the backyard. The accused turned towards the Cooerwull Public School, which I note is to the West from the Main Street house, and AS walked back to AY’s residence, which I note is to the East. AS told the accused that “I’d meet up with her later”.

163. [229]

     AS was shown Exhibit C, which is two photographs of a knife, a beanie and a pair of gloves. AS identified the beanie and gloves as being “the ones that [the accused] was wearing”.

164. [230]

     AS said that when he arrived back at AY’s residence, he vomited on her carpet. He thought he saw blood on his clothes and asked her to wash them for him. He washed his face and hands and returned to Hayley Street, where the accused was with her children.

165. [231]

     The following day, AS returned to the deceased’s house. He checked that he was dead, covered his body with newspapers and placed a lounge chair on top. AS then ransacked the kitchen and found more cash.

166. [232]

     AS again returned to the deceased’s house “a couple of days later” with Val Wright, AV and the accused. AS found more cash. On a later occasion, he returned to the house with AZ and found a large amount of cash in a Subway bag, under the deceased’s mattress. He and AZ took it to the accused’s residence and AZ took $100. AS and the accused spent the balance on drugs.

167. [233]

     AS said that what he told police in his first ERISP on 5 October 2016, and Mr Plunkett five days later, was not the truth. When asked why he did not tell them the truth, he replied, “Don’t know”. He said that what he said in his second ERISP, on 31 May 2017, was the truth.

168. [234]

     In cross-examination, AS agreed that he made a statement with the assistance of his legal advisers on 25 June 2018 which implicated the accused. It was provided to the NSW Office of the Director of Public Prosecutions. That the statement is not in evidence.

169. [235]

     AS agreed that he did not like the accused, saying: “I despise her”. He was asked why, in his first ERISP, he falsely accused BZ and John O’Heir of the murder:

170. [236]

     In relation to what AS told Mr Plunkett, AS agreed that he added BZ’s brother, AZ, as a person involved in the murder, who he also knew to be innocent of that offence.

171. [237]

     AS agreed that when he and the accused were together in the cells of Lithgow Police Station after their arrest on 5 October 2016, he proposed marriage to her.

172. [238]

     AS was shown two letters that he wrote to the accused after their arrest. The first is undated (“the first letter”). AS agreed that he wrote it “fairly early on” when he was in custody. In the letter, AS is affectionate towards the accused. He stated: “Val’s DNA was found at the house where someone killed that guy told you it wasn’t me I am gunna beat it”. AS agreed that the second letter, which is also undated, was written shortly after the first (“the second letter”). He was asked if, in the interim, he had received the brief. He said he could not remember. In that letter, AS said:

173. [239]

     AS was shown a third letter he sent to the accused, dated 25 February 2017 (“the third letter”). The letter is hostile to the accused. In the course of that letter, AS wrote:

174. [240]

     The final letter is dated 26 September 2018, which I note is after AS’s second ERISP, in which he said that the accused, not him, stabbed the deceased (“the fourth letter”). A passage from that letter reads as follows.

175. [241]

     In cross-examination, AS was asked what he meant by that last sentence, and responded “I don’t know”.

176. [242]

     In re-examination, AS said he was aware that letters written in prison are read by Corrective Services officers before they are sent.

177. [243]

     In cross-examination, AS agreed that by this time, he was “out to get” the accused, but maintained that he told the truth in his second ERISP. However, he agreed that he was still not truthful in that he maintained in that interview that only the accused stabbed the deceased. AS accepted that he pleaded guilty to the offence of murder on the basis that he also stabbed the deceased.

178. [244]

     In cross-examination, AS was questioned about his account in the second ERISP as to how the accused stabbed the deceased:

179. [245]

     AS said that he stabbed the deceased twice in the shoulder, when the deceased was on top of him. He did not stab the deceased in the eye or the face. He agreed that his claim to others that the deceased owed him money was false. He also agreed that earlier versions he gave as to how he disposed of his knife were incorrect. He did not throw it down a drain or bury it in the backyard of the deceased’s house. He buried the knife “in Birubi”.

180. [246]

     In relation to the incident of 13 August 2016, AS agreed that he did assault the accused, but denied the version that the accused had given to police on the DVEC later that night, when it was put to him. He said that the reason was “because she said she was going to the police and we accused each other of being unfit parents and we accused each other of cheating”. He agreed he “beat the living hell” out of the accused, smashed her phone so that she could not call the police, that she left the house saying, “Someone call the coppers, someone fucking help me”, and that he threatened to kill himself if she went to police. He held his knife to his throat.

181. [247]

     AS denied telling the accused to falsely claim that she was with him during the killing, that the “balaclava” and gloves were hers and that if anybody asked, he was with her at the time. He denied that, when police approached them to attend on the execution of the search warrant at Birubi Crescent, he told her to tell police that anything they found in the house was hers. He maintained that the accused located the Medicare Card in the deceased’s house.

182. [248]

     AS also denied telling the accused to claim to Josh Sharwood and others that she was involved in the killing.

183. [249]

     A transcript of short evidence of AS in the second trial was read. In my view, it lacked relevance to the issues of fact in this trial. I will not summarise it.

The case for the defence

1. [250]

   The defence tendered the four letters that AS wrote to the accused which were the subject of cross-examination of AS and the custody management record for AS.

2. [251]

   In the second trial, the defence called a psychologist, Ann Marie de Santa Brigida, to give evidence as to the accused’s state of mind. Although it was not confirmed by the parties as such, I assume it was tendered in the second trial pursuant to s 108C(1) of the Evidence Act 1995 (NSW), which provides as follows.

3. [252]

   In any event, an edited version of Ms De Santa Brigida’s evidence was read in this trial. In view of its relevance to the assessment of the credibility of the accused, it is appropriate to take note of it before I turn to consider the evidence of the accused.

4. [253]

   Ms De Santa Brigida is a psychologist whose qualifications as an expert witness were not the subject of challenge. Her relevant areas of practice are with the victims of crime through Victims Services, which is operated by Justice Health, including trauma associated with domestic violence.

5. [254]

   Ms De Santa Brigida said that she had interviewed the accused and read the Crown case summary; “criminal records in this matter; “domestic violence interviews in this matter”; “clinical notes from the Penrith Women’s Health Centre”; “some handwritten notes from a Dr Kapoor”, a practitioner; “some direct information concerning Ms Douglass and her life”; and transcripts of portions of evidence in this matter.

6. [255]

   Ms De Santa Brigida said:

7. [256]

   The following exchange occurred in examination in chief:

8. [257]

   An audio recording of the accused’s evidence from the first trial that was edited by the parties was tendered into evidence. The accused gave evidence over two days, on 29 November and 3 December 2018.

9. [258]

   In examination in chief, the accused said she visited her sister, Ms Hinds, in Sydney between 21 and 31 July 2016. She met AS the night before she left Lithgow. He immediately made Facebook requests that first night. While she was away, “He was like harassing me to come back, like he’s like I really want you to come back like I’ve got nowhere to go, I really want to like spend time with you”. She said: “I didn’t know what to think. [It was] sort of bad, sort of good because he was harassing me like”. The night she returned, he phoned her and she pretended that she was still away and would be returning the following day. Her relationship with AS commenced the following day, which was 1 August 2016. In cross-examination, she said it started “probably a few days” after she returned to Lithgow.

10. [259]

    The accused said that, before the incident on 13 August 2016, she heard “rumours” that AS was involved in a murder, from AV, Val Wright and Hayley Spittles. She said:

11. [260]

    The accused said that what she told police about the reason for the fight she had with AS on 13 August 2016 was untrue. She said that AS told her he was going to his cousin’s house. When he returned, “he was panicking and he had this awful smell”. The accused related the conversation that then occurred:

12. [261]

    AS started punching the accused. Her eldest child was “at the door screaming”. She tried to get out of the house to call the police. He grabbed her around the throat and dragged her back inside, because she was yelling out, “Can someone call the police”. The accused said that what she told police on the DVEC that AS did to her was true.

13. [262]

    The accused spent the next two nights in a motel. AS came there and stayed with her. AS told her: “he’s sorry for bashing me and that he loves me”. He told her that he bashed her because he thought she was going to tell police what he had told her. She accepted his apology. She was asked:

14. [263]

    And later:

15. [264]

    In cross-examination, she added another reason, which was that she did not know if it was true that he had killed someone. The accused said that AS would financially contribute to feeding her children.

16. [265]

    She was asked about the admissions she made to various people that she had stabbed the deceased. She said at the time she made those admissions she still did not know if AS had killed someone “because of how he was bragging to people”.

17. [266]

    In relation to the admission to Josh Sharwood, the accused said, “when he was coming towards us [AS] told me to say … that I stabbed him in the eye”.

18. [267]

    In examination in chief, the accused said that she made admissions to Paul McLeay, which were clarified in cross-examination to be that she stabbed the deceased in an eye. She did so, she said, because it was clear to her that he was listening to rumours that AS had killed the deceased and she was concerned that he would go to police. She was asked:

19. [268]

    In cross-examination, the accused was asked why she would falsely volunteer to Mr McLeay that she had stabbed the deceased in the eye if she believed that he was going straight to police. She replied: “I was only telling him what [AS] told me to say to him”.

20. [269]

    As noted, Mr McLeay was unavailable to give evidence in the first trial. When he gave evidence in the second trial, he said that the accused confessed to him but did not elaborate on what the confession was. It was not put to him that when the accused made admissions to him, he asked her: “Why are you doing this?” It was put to him that he offered to take the accused to the police station, which he denied.

21. [270]

    In relation to the admissions the accused made on 7 September 2016 in AS’s presence to AV and others that were recorded, she explained that she thought that he would go to police to report AS, but he would not believe the accused when she said that she has also stabbed the deceased. She said that AV liked the accused and did not like AS because he had bashed her.

22. [271]

    In relation to police finding the Medicare Card at Birubi Crescent, she said that when police approached her and AS at McDonalds to ask them to come back to their residence while the search warrant was executed, AS said to her, “If there’s anything they find just tell them that it’s yours because you don’t have a criminal record you won’t go to gaol”. The accused said she lied to police about the Medicare Card because:

23. [272]

    The accused denied she had made admissions to Hayley Spittles or BX. She agreed that Ms Spittles accompanied her and her younger son as they walked to the school to pick up her older son, but denied that she pointed out the deceased’s house or that she went into the house. The accused described the incident that led to Ms Spittles being charged with assaulting her.

24. [273]

    The accused denied that she made admissions to AX and BX or that she was in a car with AX when AS pointed out the deceased’s house. The only conversation she had with them the night before she was arrested concerned the accused taking responsibility for another unrelated criminal offence committed by AS, which prompted BX to say to AS: “You’re fucked [AS]. She must really love you if she’s saying this”. The only time she had heard the word “decapitated” was when she and Ms Spittles walked to the Cooerwull school. Ms Spittles pointed to the deceased’s house: “she said that’s the house where apparently [AS] had killed someone and they decapitated his head and I didn’t know what it was”.

25. [274]

    In evidence in chief, counsel for the defence elicited evidence from the accused of her troubled personal history. The accused agreed that her mother had “abandoned” her and her sisters when she was a child; her father had claimed that she wasn’t his child, what she said on the DVEC about keeping knives for her personal safety was true, she was badly assaulted by her previous partner who is now in prison, and she was living in a refuge when she first came to Lithgow. She said that she had previously used drugs and stopped while she was in the refuge. She started again through the influence of AS, as he acknowledged in a letter to her while she was in prison.

26. [275]

    The accused said that AV gave her beanies and gloves that she kept in a bag in a cupboard. She lent some to AS. He borrowed a beanie and gloves before he bashed her and did not return them. The accused denied that she used to carry a knife around with her.

27. [276]

    The accused said that she was telling police the truth on 13 August 2016 when she told them that AS said that he was going to burn her house down and kill her and her children. She was asked in cross-examination why, if she feared AS, she did not tell police on 13 August 2016 that AS had confessed to a murder:

28. [277]

    In cross-examination, the accused was questioned about her admissions to others that she was directly involved in the killing. She agreed that within days of the incident of 13 August 2016, she told her sister that AS had “done something bad” and that she was in “the wrong place at the wrong time”, but denied she was referring to the Main Street house. She did not explain what she was referring to, by those words.

29. [278]

    In relation to the two recorded conversations on 20 September 2016 between the accused and Ms Hinds, she said that AS told her what she said to Ms Hinds, and that in the second call he was holding her phone during the call, which was on loudspeaker. Ms Hinds had told her that she was going to police, so by telling Ms Hinds that she was also involved, that would discourage her from doing that, because “she knows that I’m not a violent person”. She was then asked:

30. [279]

    She said, “[AS] told me to tell people that I was with him”. She also agreed that AS told her “If anyone asks that he was at home with me and I didn’t know what to believe at that the time”.

31. [280]

    In cross-examination, the accused was asked what she meant by certain aspects of her claims of knowledge about the killing. In relation to the recording of 7 September 2016, she said that AS told her to tell the others what she said about the face mask and her fingerprints being all over the house. She said: “I was just saying what he wanted me to say because I was scared if I said something he’d bash me again”.

32. [281]

    The accused said that she was unable to report AS to police because “he wouldn’t leave me alone, like, he kept coming to my house”.

33. [282]

    She said that she finally believed that AS had killed someone when police searched her residence, on 27 September 2016. From that time, she wanted to leave him, but could not, because she was scared of him.

34. [283]

    It was put to the accused that her explanation for telling others that she and AS both stabbed the deceased, that it would "take the heat off” AS, did not make sense, because “it just puts the heat on you as well?”. She responded, “I wasn’t sure, I didn’t know how serious it was at the time”.

35. [284]

    The accused said when she blamed others for the killing, “I was only saying what [AS] was saying”. She said that when they were arrested, while they were in the cells, AS told her “Just tell them it was [BZ]”.

The parties’ closing addresses

1. [285]

   As noted, the Crown relied on alternative bases for proving that the accused was guilty of the offence, the first being that she stabbed the deceased with the requisite intent. The Crown submitted that the necessary elements for that basis are as follows.

2. [286]

   The Crown submitted that the first element was established by AS’s plea of guilty to murder. The second element was established by the admissions by the accused to others that she deliberately stabbed the deceased. The Crown relied upon the consistency of the admissions as an element in establishing their reliability, for example, her repeated claim to have stabbed the deceased in one of his eyes. The Crown acknowledged that some admissions were at least consistent with her having visited the interior of the house after the killing and before 7 September 2016, but that they were not inconsistent with the admissions that she was directly involved in the killing, as well. As to the third element, the Crown relied upon the nature of the accused’s admissions as to where she stabbed the deceased, being in the eye and back, in order to infer that she intended him really serious bodily harm. The fourth element is established by the evidence of the pathologist, Dr Vuletic, as to the cause of death being blood loss from multiple stab and incised wounds.

3. [287]

   In relation to the fifth element, the Crown conceded that there is some evidence that would excite consideration of self-defence as a partial or complete defence. That being so, should the Court be otherwise satisfied of the elements of murder, it would be necessary to determine whether there is a reasonable possibility that the accused believed that the acts done by her with her knife were reasonably necessary in order to defend another, namely, AS.

4. [288]

   As noted, the alternative basis advanced by the Crown for a finding of guilt of the offence of murder is extended joint criminal enterprise. The Crown submitted that the necessary elements, in the evidentiary context, are as follows:

5. [289]

   For the first element, the Crown relied upon AS’s evidence that he and the accused jointly prepared for the theft by cutting holes in the beanie so it could be used as a balaclava and that they were both armed with knives. In addition, the Crown relied upon evidence of admissions by the accused that it was a robbery or break and enter that went wrong. For the second element, the Crown referred to evidence from AS that he always carried a knife and BY’s evidence that he saw AS carrying a knife. The Crown submitted that since the accused and AS were in an intimate relationship, the accused would have been aware that AS always carried a knife and would have had one with him. For the third element, the Crown referred to AS’s evidence that he stabbed the deceased and evidence of admissions he made to others that he repeatedly stabbed the deceased. Dr Vuletic’s evidence established the fourth element. The fifth element, submitted the Crown, is established by the evidence that allows an inference that the accused would have been aware, when she entered the house to commit the theft or robbery, that if AS was disturbed or surprised by any occupants, he would use his knife. Her concerns that she expressed to police on 15 August 2016, that “I’m scared I’m gunna end up dead … ’cause I know what he’s capable of ... and what he’s done to other people”, is evidence of the awareness that she would have had on 7 August 2016. Finally, the sixth element, submitted the Crown, is established by the evidence that the accused was present in the house at the time that the deceased was stabbed by AS.

6. [290]

   The Crown submitted that if the Court is not satisfied that the accused foresaw the possibility that AS might use the knife to inflict really serious bodily harm upon the deceased but is satisfied that the accused would have realised that AS’s act exposed the deceased to an appreciable risk of serious injury, the Court may return an alternative verdict of manslaughter.

7. [291]

   In relation to the potential unreliability of AS’s evidence, the Crown conceded that the Court would have “grave concerns” as to its reliability, but some parts could be corroborated.

8. [292]

   The defence submitted that the central plank of the Crown case, that the accused was present at the killing and substantially contributed to his death, is “based, in very large part, on the demonstrably unreliable and self-serving evidence of AS and the unreliable admissions of the accused”.

9. [293]

   It was submitted that AS’s evidence is unreliable. He lied about his own involvement, to a point of implicating people who he knew to be innocent. He was motivated to implicate the accused in the murder by malevolence and spite.

10. [294]

    However, the evidence of AS’s admissions to AY approximately an hour after the murder was reliable, because they were an account given while he was still distressed by what he had done and therefore it was more likely to be the unvarnished truth. In that account, he made no mention of the accused having participated in the crime, and there was no reason for him not to have implicated her, if she had been a co-perpetrator. As he left, he said he was going to tell his girlfriend what he had done. Clearly that was the accused.

11. [295]

    The defence submitted that the evidence of AS making admissions to friends in which he consistently referred to having robbed and killed the deceased in the singular raises a reasonable possibility that he indeed acted alone.

12. [296]

    AS’s letters to the accused from prison suggest that the accused was not involved. The defence invited the Court to infer that at the time AS wrote the first and second letter, he had not received the police brief. It was submitted that if the accused and AS had both committed the crime, even though he knew that the authorities would read all his correspondence, it was illogical that he would write what he did if he and the accused had killed the deceased.

13. [297]

    The third letter was written two months after AS had received the police brief and therefore he was now aware that the accused had informed police that he had killed the deceased. The defence submitted that passages in that letter are inconsistent with the proposition that the accused was a co-perpetrator:

14. [298]

    Three months later, AS participated in his second ERISP, in which he blamed the accused for being exclusively responsible for killing the deceased. The fourth letter, which was written seven weeks after his sentence in which he admitted responsibility as a co-perpetrator, has a passage which is also inconsistent with the accused’s guilt:

15. [299]

    The defence submitted: “the court can conclude that [AS] is a person with a demonstrated tendency to lie with a view to exculpating himself and implicating others”.

16. [300]

    In relation to the incident of 13 August 2018, the defence submitted that the accused’s account in her ERISP and her evidence of what prompted AS’s assault of her was credible. The motive for the assault upon the accused, and his threat to kill himself, was her threat to phone police because he had just admitted to her that he had committed murder. If she had been a co-perpetrator, it would be illogical for her to seek protection from police a week later and again on 15 August 2016.

17. [301]

    In relation to all such admissions, the defence contended that, “this evidence should be seen through the prism of the accused’s dire personal circumstances and the profoundly dysfunctional nature of her relationship with [AS]”.

18. [302]

    The defence took the Court through the evidence of the admissions made by the accused and pointed out, in some instances, inconsistencies with objective evidence and an absence of corroborating evidence where one might expect it. For example, in relation to the accused’s admissions in the recorded conversation of 7 September 2016 at her house, her fingerprints were not located in the house at all and the location she gave for the balaclava was wrong. Another example is that there is no corroborating evidence that the deceased was stabbed in an eye. Similarly, the evidence that she had tried to cut up the deceased’s body was inconsistent with the forensic evidence. There was no corroboration in the forensic evidence that more than one knife was used.

Further directions

1. [303]

   Pursuant to ss 165(1)(d) and (2) of the Evidence Act, I direct myself that the evidence of AS may be unreliable. AS was criminally concerned in the killing. In addition, he has had the benefit of a significant discount off his sentence in anticipation of the evidence he would give against the accused, to the effect that she was a co-perpetrator. A third concern is the evidence to the effect that AS repeatedly lied as to who committed the offence. Accordingly, I must exercise caution in determining whether to accept AS’s evidence in whole or in part and, if I do, what weight to give it. It would be unsafe to find the accused guilty on his evidence alone.

2. [304]

   There has been evidence to the effect that the accused has told lies, for example, as to when her relationship with AS commenced. I direct myself to take into account any alternative explanations that are available on the evidence, such as mistake, confusion or forgetfulness, particularly in light of evidence that the accused was using ice in that period in her life. If I find that the accused has lied, it is relevant to her credibility.

3. [305]

   I note that the accused has no criminal convictions for matters of violence. I take that into account in determining whether the Crown has discharged its onus.

4. [306]

   I have careful regard to the submissions that have been put to me by the Crown and defence in their addresses. I note that they are not evidence.

5. [307]

   If I am otherwise satisfied of all the elements of murder on the basis that the accused stabbed the deceased and I consider that there is a sufficient evidentiary basis to contemplate the defence of another, I direct myself as follows.

6. [308]

   There are two parts to this issue of defence of another, and in relation to each of them, the Crown bears the burden of proof. It is not for the accused to prove that she was acting in defence of another, it is for the Crown to prove that she was not, which involves two questions.

7. [309]

   The first is whether the Crown has proved beyond reasonable doubt that the accused did not believe at the time of the stabbing that it was necessary to do what she did in order to defend AS. If the Crown has discharged that onus, my verdict will be guilty of murder.

8. [310]

   The second question is whether the Crown has proved beyond reasonable doubt that the stabbing by the accused was not a reasonable response in the circumstances as she perceived them.

9. [311]

   If the answer to the first question is no, but the answer to the second question is yes, provided that all of the other elements have been proved, my verdict should be not guilty of murder but guilty of manslaughter.

10. [312]

    If the answers to the first and the second questions are both no, then my verdict will be not guilty of murder and not guilty of manslaughter.

11. [313]

    In relation to extended joint criminal enterprise, I direct myself as follows.

12. [314]

    People who agree to commit a crime and go ahead and commit it are all criminally responsible for the crime, regardless of the role they played. They are responsible for their own acts as well as the acts of the others.

13. [315]

    The agreement need not be formal; it can be quite informal.

14. [316]

    The fact that people have agreed to commit a crime can be inferred or concluded from the way the crime is committed.

15. [317]

    Once there is an agreement to commit a crime, it does not matter what role a particular offender plays in carrying it out.

16. [318]

    This criminal responsibility extends in some circumstances to an additional crime committed by one of the other offenders. In the context of this case, if the stabbing of the deceased with the requisite intention was an action that the accused foresaw AS might do, then the accused would be guilty of the additional offence of murder.

Consideration

1. [319]

   As noted, the Crown relied on the evidence of AS and the evidence of admissions to establish beyond reasonable doubt that the accused stabbed the deceased.

2. [320]

   In my view, AS is an unreliable witness for the prosecution as to whether the accused was criminally involved in the offence. By his accounts following his arrest, he repeatedly demonstrated a preparedness to lie about his role in the murder by attributing guilt to persons who he knew to be innocent, but against whom he had a grudge. He claimed to police that members of his own family who he did not like had carried out the murder. When he became aware that the accused had informed police that he was involved in the murder, he wrote to her threatening to “drag her down”. He admitted in Court that he despised her. The conversation between AS and AV on 29 September 2016 is also indicative of a preparedness to suggest that people he knows to be innocent have committed a criminal offence.

3. [321]

   The Crown submitted that the parts of AS’s evidence that are corroborated can be relied upon, but there is limited evidence that comes within that proviso. His version of events to police in his second ERISP post-dated his receipt of the police brief, so that he could tailor his account accordingly.

4. [322]

   The alternative basis for the Crown case is of a different character. The most compelling part of the Crown case is the uncontradicted evidence of the accused’s admissions that she went with AS to the deceased’s house and intervened while AS and the deceased were fighting by stabbing the deceased.

5. [323]

   As to the admissions alleged to have been made by the accused which she disputes, I find the following. There is a high degree of consistency between the contested and uncontested admissions. I am satisfied beyond reasonable doubt that the evidence of AS’s aunt, BW, as to the admissions made to her by the accused, are reliable. BW’s failing eyesight was a compelling explanation by her as to why she recalled precisely what the accused had said, which included an admission that she had stabbed the deceased in an eye and in his back. I do not find that the absence of a record of her claimed report to Crime Stoppers detracts from the credibility of her evidence.

6. [324]

   I am not satisfied that Hayley Spittles was truthful in her evidence concerning the assault charge involving the accused, but I am satisfied that she was truthful in her evidence as to what the accused admitted to her on 29 August 2016 and as to the events of that day, in particular, that the accused walked off towards the deceased’s house as they walked to the Cooerwull Public School. I note that Ms Spittles’ evidence that she approached police about the events of that day before the assault incident arose was not disputed by the defence.

7. [325]

   I am satisfied that AX and BX gave truthful and accurate evidence about the admissions made to them by AS and the accused, although I find AX’s recollection to be more detailed than that of BX. Accordingly, I am satisfied that within a few days of the killing, AS told his brother and sister in law that “we” went to the house and that “we” killed him, in other words, that he committed the offence in company. I find their evidence convincing as to the conversation they had with the accused around the kitchen bench the night before her arrest. I note AX’s evidence of the trauma the admissions occasioned to her, for a long time thereafter.

8. [326]

   It follows from my findings in relation to the reliability of AX and BX that I also find that the accused told them that she tried to decapitate the deceased and cut through bone, which was not true.

9. [327]

   As to the places on the deceased’s body where the accused claimed to have stabbed him, she claimed to BW that she stabbed him in his back and to a number of people that she stabbed him in one of his eyes. There is forensic corroboration of a stab wound to the deceased’s back, which penetrated his left lung. The forensic evidence is neutral as to whether the deceased had suffered a knife wound to an eye, because by the time his body was discovered by police, the eyes and conjunctivae had disappeared. As I understand Dr Vuletic’s evidence, the skin around the eye sockets had tightened due to the process of mummification, so that if there had been a knife injury to an eye that involved an incision to the socket skin, the wound could no longer be seen. For that reason, there was no objective sign of an eye injury, but it could not be ruled out.

10. [328]

    Taking into account the process of secondary transfer of DNA, the forensic evidence in relation to the gloves and beanie is not determinative of whether they were worn at the time of the killing by the accused, AS or, at different times during that incident, both. There is no DNA evidence that links the knife to either AS or the accused. Its width is consistent with Dr Vuletic’s evidence as to the width of the knife, or knives, that were used in the attack.

11. [329]

    The defence submitted that the admissions were false. One of the reasons advanced was that some of the admissions are inconsistent with other evidence. In key respects, I find that they are not. The accused expressed concern that she had fingerprints throughout the house, but the defence submitted that this is contradicted by the forensic evidence that none were discovered by police. However, photographs of the interior of the house show it to be in a state of extreme mess, with the floor of each room covered to at least knee-height in what appears to be, in the main, rubbish. The house would have had thousands of surfaces. I could not conclude that the absence of the discovery of the accused’s fingerprints is positive evidence that she could not have been in the premises at the time of the killing or thereafter.

12. [330]

    In the recorded conversation at Hayley Steet on 7 September, the accused referred to leaving her face mask “in the backyard” and later in the same recording, “out the back”. I do not think those descriptions are necessarily inconsistent with the beanie being located in a backyard off the laneway that was to the rear of the deceased’s house.

13. [331]

    The defence submitted that the fact that, prior to AS’s arrest, he repeatedly referred to himself acting alone when he went to the Main Street house and killed the deceased, is evidence that raises a reasonable possibility that the accused’s admissions that she was with him and also stabbed the deceased, are untrue. The defence particularly relies upon the evidence of AY as to what AS said immediately after the killing.

14. [332]

    I find that AY’s evidence as to the events of the evening of 7 August 2016, including the terms of the conversation with AS and the observations of his behaviour when he returned, is reliable. It follows that I am satisfied that AS told her, at least by implication, that he was alone when he stabbed the deceased. I draw from her evidence an inference that the killing occurred between approximately 7pm and 8pm on that date. Based on AY’s observations, I find that AS was distressed in the immediate aftermath of the incident.

15. [333]

    However, having regard to all the evidence, I am not persuaded by AY’s account that AS was so distressed that it can be safely inferred that he was being truthful in implying that he acted alone. I do not find it surprising that, if AS was accompanied by the accused, in the immediate aftermath of the killing he would not mention that fact to his cousin but would reveal it to a closer relative, that is, his brother BX and his partner AX, that he was with someone at the time.

16. [334]

    In any event, there is evidence of AS admitting to Sean Drury that “the chick he was with”, was involved in the killing. There is also the evidence of the accused, in AS’s presence, admitting to others that she was involved and AS not contradicting her, for example, in the recorded conversation in Hayley Street on 7 September 2016, and BW’s evidence as to the accused admitting, while AS sat alongside her, that she stabbed the deceased. Accordingly, I do not find that there is a reasonable possibility arising from AS’s claims from time to time that he acted alone, that the accused’s admissions were unreliable.

17. [335]

    A desire by AS to take complete responsibility for the killing because of his devotion to the accused in the pre-arrest phase explains why he would admit to acts that the accused also admits to, such as stabbing the deceased in an eye and finding a Subway brand bag containing a large sum of cash under a mattress in the house.

18. [336]

    The accused’s admissions constitute evidence that, prima facie, warrants considerable weight. The defence submitted that they were false confessions, that she made because AS asked her to do so. The defence submitted that, although AS assaulted the accused a fortnight into their relationship and she was so concerned about her safety that she called police at least on 15 August 2016 if not also on 13 August 2016 (there being no evidence as to who called police on that earlier occasion), she decided to make a false confession to her sister and acquaintances in Lithgow. On its face, this is illogical and does not accord with my experience of human relationships.

19. [337]

    The defence advances a number of reasons as to why the accused agreed to take this extraordinary step, which I now consider.

20. [338]

    I accept the evidence of Ms De Santa Brigida that a person in the position that the accused was in in August 2016, being a person who had suffered childhood abuse and neglect and was experiencing domestic violence as an adult, could be capable of wanting to remain in a violent relationship in the belief that the violent partner somehow loved them, because of their longing for affection. This could also be in spite of fearing the violent partner.

21. [339]

    Essentially, the accused’s explanation was that she agreed to tell others that she and AS stabbed the deceased because she believed that it would “take the heat” off AS, who she loved. She had never been loved before and if he was arrested and charged with the murder, she would lose him. Her evidence was that the reason that the false confessions that she made to friends would assist AS was because she believed that those people would not report AS to police if it meant that she also would be arrested. I find that explanation unconvincing. The accused had no explanation as to how AS would be assisted by her confessing to people who were not necessarily her friends.

22. [340]

    Another part of the accused’s explanation was that whenever she made a confession on the phone, AS was nearby to ensure she did so. However, the tone of some of the calls is contrary to the suggestion that any duress was involved. For example, in the phone calls with her sister on 10 September 2016, the accused had a tone that I would describe as light-hearted and relaxed, with frequent giggles or laughs. On only a few of the recorded calls with admissions by the accused is there a reference to AS also being with or near the accused at that time. Some of the admissions made to others that were not recorded and which she does not dispute were made in the absence of AS.

23. [341]

    In relation to the third and fourth letters written to the accused by AS from prison, although prima facie they appear to assist the accused, I do not find them probative of AS’s actual position in respect of the accused’s guilt or otherwise, because he was aware that his correspondence was being scrutinised by the authorities. A simple example of him lying in his correspondence is his denial of guilt in the first letter.

24. [342]

    In her evidence, the accused said that before the incident of 13 August 2016 she heard rumours that AS had killed someone. When AS told her on 13 August 2016 that he had killed someone, she “started to believe that it was true”. When she was telling people that she had also stabbed the deceased, she said she did not really know if it was true or not, because of how he was bragging to people. She only decided it was true when police searched her residence, on 27 September 2016, but did not leave him at that point, because by then she was scared of him.

25. [343]

    I accept that on 15 August 2016, based on what the accused told police and her demeanour on the DVEC, she was genuinely scared of what AS might do to her and to her children. However, she was seeking police assistance in response to that fear. She allowed AS to reside with her from that weekend, in so doing, contravening the terms of the interim ADVO, until the time of their arrest almost two months later. I am satisfied beyond reasonable doubt that if the accused subsequently feared that AS would harm her or her children, she would have contacted police. It is not apparent from the content of the LDs and TIs that the accused feared violence from AS to the point that she was afraid to go to police.

26. [344]

    The defence submitted that the accused believed that if she alerted police to AS’s confession of murder to her, she would lose her children. I find that submission has some force, particularly in the context of the psychologist’s evidence. I take that into account in considering whether I am satisfied that the Crown has proved its case. I also accept the psychologist’s evidence to the effect that the accused’s vulnerability at the time could explain why she would engage in the protection of AS when it would otherwise appear unwise, immoral or illogical to do so. However, taking that into account, I nevertheless find the accused’s explanations as to why she falsely confessed to her sister in particular, and to others generally, so unconvincing and contrary to logic that I find there is no reasonable possibility that her admission that she stabbed the deceased is untrue.

27. [345]

    I am satisfied that the recorded conversation at the accused’s home on 7 September 2016 clearly establishes that, as of that date, she believed that there had been a killing in the house that police had taped off and she was afraid that she would be implicated by the “face mask” and her fingerprints.

28. [346]

    I am satisfied beyond reasonable doubt that the accused visited the Main Street house on one or more occasions after the killing. I note the evidence of Val Wright that he gave the accused a tattoo on her hand about a week before 7 September 2016, and the accused saying on 7 September 2016 that she did not wear gloves because of her “new tattoo with gladwrap wrapped around it” and that she had left fingerprints in the house. I also note Hayley Spittles’ evidence as to the accused telling her on 29 August 2016 that she was going into the house, walking in the direction of the house, returning shortly afterwards from that direction and relating what she had seen and done in the house. I draw an inference from all those aspects of the evidence that the accused went into the house after receiving the tattoo and before 7 September 2016. I note that, although the accused denied she had been in the house at all other than knocking on the front door, my finding that the accused visited the Main Street house after the killing does not implicate her in the killing itself.

29. [347]

    The accused told police in the DVEC made on 13 August 2016 that she and AS had been in a relationship for three weeks. In her ERISP, after being told that police believed that the killing occurred on 7 August 2016, she said that they had been together since “probably the second week of August”. In her evidence, she said their relationship commenced within days of returning to Lithgow from Sydney on 21 July 2016. I find that the accused deliberately lied in her ERISP as to when her relationship with AS commenced, in order to temporally distance herself from the killing.

30. [348]

    Taking into account the accused’s multiple admissions that she stabbed the deceased and the specific matters I have mentioned, I am satisfied beyond reasonable doubt that the accused was telling the truth when she admitted to others that she stabbed the deceased, including her specific admissions that she stabbed him to the eye and in his back. It follows that I am satisfied that the accused was present with AS at the deceased’s house on the evening of 7 August 2016 and that she stabbed the deceased.

31. [349]

    Having regard to the evidence that the stab wound to the deceased’s back penetrated his left lung and the stab wound to the eye, I am satisfied that when she stabbed the deceased she did so deliberately and intended by those acts to at least cause him really serious bodily injury. The fact that the accused did not seek medical attention for the deceased, but rather left him alone in his house with serious wounds is, in my view, evidence of consistency of an intention by the accused at the time of the stabbing to kill the deceased.

32. [350]

    I am satisfied beyond reasonable doubt that the cause of death was the loss of blood due to multiple stab and incised wounds inflicted by the accused and AS. I find beyond reasonable doubt that the wounds inflicted by the accused substantially contributed to the death of the deceased.

33. [351]

    I am conscious that the manner in which I have explained my reasoning, by examining whether the evidence that founds the defence’s submissions detracts from the evidence of the accused’s admissions to a point that a reasonable doubt is established as to their reliability, may suggest that I have lost sight of the fact that the onus rests on the Crown at all times to prove its case. That is not so. Rather, the accused’s admissions by themselves, many of which are conceded, are prima facie evidence of her guilt. It is therefore unavoidable that in the process of considering their reliability, in particular in determining whether they were knowingly false admissions, that a starting point of the accused being guilty would be suggested, which is not the starting position that I have adopted.

34. [352]

    In relation to the defence of another, I find that there is evidence that merits consideration of that defence. The accused is alleged to have said to others that she stabbed the deceased because he was getting the better of AS in a fight. I accept that the accused did say as much.

35. [353]

    However, whereas AS was armed and stabbed the deceased, there is no evidence that the deceased was also armed. Secondly, there is no evidence that AS sought to end his fight with the deceased by simply concluding his illegal trespass and departing from the deceased’s residence. I infer that the time that the accused intervened in the fight by stabbing the deceased, she was aware of both those matters. I am satisfied on the evidence that, in those circumstances, the Crown has proved that it was not necessary to do what she did in order to defend AS.

36. [354]

    Accordingly, there is no need to consider the Crown’s alternative basis of advancing its case, of extended joint criminal enterprise.

37. [355]

    For the sake of completeness, I note that both the accused and AS claimed that the other took steps for them to be bashed by fellow prisoners whilst they were in prison on remand. I do not consider that evidence to be probative in either the Crown or defence cases, and I have not summarised it. I ignore that evidence.

38. [356]

    In relation to the count of murder in the indictment, I find the accused guilty.