R v Dillon; R v Locke; R v Taylor

1. [1]

   Pursuant to a Notice of Motion filed on 21 October 2024 on behalf of Evan Taylor and submissions dated 20 September 2024 filed on behalf of Zackary Locke and Jake Leroy Dillon (“the applicants”), each applicant applies for a grant of a certificate pursuant to the Costs in Criminal Cases Act 1967 (NSW) (“the Act”). The Crown opposes the applications.

2. [2]

   Jayden Bowden, Jake Leroy Dillon, Zackary Locke and Evan Taylor were charged with the murder of Mak Muon (“the deceased”). The Crown case against each accused relied on joint criminal enterprise and, in the alternative, extended joint criminal enterprise.

3. [3]

   The trial commenced before me on 20 May 2024. At the commencement of the trial Mr Bowden pleaded not guilty to murder but guilty to manslaughter. The Crown did not accept the plea of guilty to manslaughter in satisfaction of the indictment. The remaining accused, the applicants in these proceedings, pleaded not guilty to the sole count on the indictment, namely murder.

4. [4]

   On 4 July 2024 the jury returned verdicts in the case of each accused. Mr Bowden was found not guilty of murder but guilty of manslaughter. Mr Dillon, Mr Locke and Mr Taylor were each found not guilty of murder and not guilty of manslaughter.

Overview of the Crown Case

1. [5]

   At trial, the Crown case was that in the early hours of 24 September 2020, the deceased committed a home invasion at 15A Lauder Street, Doonside. He was in the company of Gregory Ambler and Thomas Matycz. Each of these perpetrators were wearing face coverings and carrying weapons. The deceased was armed with a pistol and the other two men were carrying machetes or knives.

2. [6]

   Mr Bowden resided at 15A Lauder Street. He lived in a granny flat at the premises. His mother, Stacey Byrne lived in the main house with her partner, Shane Stirling. Mr Bowden’s girlfriend, Jaysin Hay, was staying with him on the night of the home invasion.

3. [7]

   At about 1:00am on 24 September 2020, Ms Hay was woken up by Mr Bowden yelling for his mother.

4. [8]

   The deceased said words to the effect of, “[w]here is your money. Where is your drugs. Give us your bikes.” Ms Hay heard all of the intruders involved saying similar things to Mr Bowden.

5. [9]

   Mr Bowden was forced to the ground by two of the males who then began searching the granny flat and opening drawers and cupboards. At some point the deceased and the other males involved went outside of the granny flat with Mr Bowden.

6. [10]

   Ms Hay grabbed her phone and called Ms Byrne, telling her that there were people in the granny flat. Ms Hay hung up soon after. Right after this, one of the males, likely Mr Ambler, came into the granny flat and said, “[w]ho was that?”. Mr Ambler was holding a machete style knife.

7. [11]

   Mr Ambler held Ms Hay down with his forearm and struggled with her, eventually managing to snatch her mobile phone out of her hand. This phone was an Apple iPhone 7.

8. [12]

   Ms Byrne and Mr Stirling ran down the footpath from the house to the granny flat. When they arrived, they saw the screen door of the granny flat lying on the ground and a number of individuals outside on the veranda area.

9. [13]

   Ms Byrne screamed, “what the [fuck’s] going on?” and Mr Bowden said, “Mum, they’ve cut me, they slashed me with the machete.” Mr Bowden at this point had a laceration along his right arm, sustained as a result of being slashed with the machete by one of the perpetrators.

10. [14]

    Ms Byrne jumped in between her son and the deceased and said, “[h]ow dare you point a gun at my son”.

11. [15]

    Mr Stirling swung a metal pole at one of the males and chased them off the property. By this point the deceased and Mr Matycz had entered their vehicle, the Nissan Murano (“the Murano”). Mr Ambler tried to get into the vehicle but couldn’t, and Mr Stirling started to hit the vehicle with his metal pole.

12. [16]

    The vehicle began to drive off, with Mr Stirling chasing after it on foot, and Mr Ambler chasing after him.

13. [17]

    The vehicle suddenly did a U-turn and headed back towards Mr Stirling. Mr Stirling managed to jump out of the way, however, Mr Ambler did not and was struck by the vehicle and fell to the ground.

14. [18]

    Mr Ambler got back to his feet and ran to the vehicle, jumping into the rear passenger seat. The vehicle took off down the road and drove out of sight.

15. [19]

    Ms Hay insisted that she wanted to retrieve her phone. Mr Bowden contacted Mr Dillon and requested that he attend his premises to help him retrieve his property. Sometime after that Messrs Dillon, Taylor and Locke arrived at Mr Bowden’s home. They were able to track the stolen phone by using the “Find My iPhone” application.

16. [20]

    Ms Hay and each accused got into Ms Byrne’s white Audi (“the Audi”) and tracked the iPhone using the “Find My iPhone” application.

17. [21]

    In the meantime, police arrived at 15A Lauder Street, having received calls about an apparent incident involving a machete. Whilst the police were at the premises, they spoke with Ms Byrne. She called Mr Bowden during that conversation. Mr Bowden spoke to the officers and said that nothing happened and that it was, “all good,” and that he would not be returning to the premises until at least the next day.

18. [22]

    The accused and Ms Hay tracked the phone to Bungarribee and then to McAuley Crescent, Emu Plains.

19. [23]

    Mr Bowden’s sister, Ashlei May left her house in her white Toyota Kluger and drove to McAuley Crescent. She told Mr Bowden to stop at the end of the street and wait until she arrived.

20. [24]

    It was in McAuley Crescent that Ms May became involved in a verbal confrontation with the others. She saw the deceased and Mr Ambler standing near the car and yelled, “[a]re you the ones that did this to my [brother’s] house and put a gun to my [mum’s] head?”.

21. [25]

    Mr Bowden and at least two of his co-accused ran down McAuley Crescent to where the confrontation was taking place. There was some yelling back and forth. During this verbal altercation, Mr Ambler and the deceased got into the Murano, with Mr Ambler occupying the driver’s seat, and drove away.

22. [26]

    Messrs Bowden, Taylor, Locke and Dillon and Ms Hay returned to the Audi. Mr Taylor sat in the driver’s seat with Mr Locke in the front passenger seat. Mr Bowden, Ms Hay and Mr Dillon sat in the back seats. Mr Taylor continued driving, pursuing the Murano, into Bunyarra Reserve.

23. [27]

    Mr Ambler drove the Murano through Bunyarra Reserve before crashing into Lapstone Creek which rendered the car unable to travel further. Mr Taylor stopped the Audi just short of Lapstone Creek.

24. [28]

    Mr Ambler exited the car and started running across Bunyarra Reserve. The deceased also exited and attempted to run in a different direction from Mr Ambler.

25. [29]

    It was the Crown case at trial that Messrs Bowden, Dillon, Locke and Taylor got out of the vehicle at Bunyarra Reserve and chased the deceased. They caught up to him, and all four accused were involved in an altercation with the deceased during which he was kicked and punched. At some point during this altercation, the deceased was fatally stabbed.

26. [30]

    The Crown case relied upon circumstantial evidence which included evidence that each of the accused had been armed during the pursuit of, and confrontation with, the deceased and his associates. The Crown case also relied upon evidence that during the pursuit, the applicants wore gloves and face coverings.

27. [31]

    Of critical importance to the Crown case was the evidence of Jaysin Hay. She was the sole eyewitness (other than the accused) to the events that took place at Bunyarra Reserve. Ms Hay made an induced statement to police on 30 October 2020. Without her evidence, the Crown could not have established the essential elements of the offence beyond reasonable doubt.

28. [32]

    As such, the credibility of Ms Hay was central to the issues at trial. Normally, matters of judgement concerning credibility, demeanour and the like, are matters essentially within the role of the ultimate fact finder, here, the jury. However, as shall be seen, it was evident as far back as October 2020, that Ms Hay had lied in relation to the role played by Mr Taylor in the altercation that led to Mr Muon’s death. There was clear and unambiguous evidence in this case that Ms Hay lied in her account as to what Mr Taylor did at the critical time when the deceased was killed. That lie was known to the police as a result of listening device product dating back to October 2020. Insufficient measures were taken by investigating police to clarify the witness’s position. No second statement was taken from the witness about the lie. Explanations as to the absence of a second statement were wholly inadequate.

29. [33]

    Furthermore, that it was clear to investigating police, as far back as of late 2020, that Ms Hay lied about Mr Taylor, is beyond doubt considering the evidence given by the police at trial. Detective Sergeant Michael Sparkes, the Officer in Charge (“OIC”) and Detective Sergeant Bradley Gardiner formed the view that Ms Hay, the primary and critical witness in the Crown case, had lied about the movements of Mr Taylor during the altercation that resulted in the death of the deceased.

30. [34]

    Detective Sergeant Sparkes gave evidence during cross-examination by Mr Peluso on 12 June 2024 that listening device product from Diamond Beach revealed that Ms Hay had lied in her statement. The exchange is as follows:

31. [35]

    Detective Sergeant Gardiner also gave evidence during cross-examination by Mr Peluso on 6 June 2024 that he became aware of an inconsistent statement made by Ms Hay through the review of surveillance device material at Diamond Beach. The exchange is as follows:

32. [36]

    I will deal more fully with Ms Hay’s evidence and its relevance to one of the essential questions for determination, namely whether the Court is of the opinion that if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute proceedings.

33. [37]

    Suffice to say for present purposes that the failure to properly investigate the lies told by Ms Hay about Mr Taylor, in circumstances where the police were in possession of the representations which amounted to a lie (captured on listening device product in late 2020), together with the continued prosecution of Mr Taylor for murder, based upon the evidence of Ms Hay, are matters of significant concern. That concern was conveyed by me on several occasions during the trial.

Submissions

1. [38]

   I have had the benefit of comprehensive written and oral submissions by each applicant and by the Crown. I have had regard to those comprehensive submissions in making my determination. However, for the purpose of this judgment, I will only briefly summarise the respective submissions.

2. [39]

   Mr Peluso’s submissions on behalf of Mr Taylor, turned on two key arguments. First, that the Crown case was a flawed one based on a “grossly inept” police investigation and “fractured Crown Case”. Second, that Ms Hay was totally lacking in credit and reliability.

3. [40]

   Mr Taylor relies on the following factors to establish that the Crown case against him was “seriously flawed”:

   1. (1)

      In late 2020 the police became aware that Ms Hay had lied about Mr Taylor being present and participating in the altercation with the deceased.

   2. (2)

      Both Detective Sergeant Sparkes and Detective Sergeant Gardiner conceded that Ms Hay had lied about the movements of Mr Taylor in the altercation resulting in the death of the deceased.

   3. (3)

      Detective Sergeant Sparkes did not include in any of the statements served on the defence that he became aware that Ms Hay had lied in her original statement about the movements of Mr Taylor at Bunyarra Reserve.

   4. (4)

      Detective Sergeant Sparkes confirmed that no further statement was taken from Ms Hay and agreed with the proposition at trial that he had three years to investigate the contents of the induced statement, as it applied to Mr Taylor.

   5. (5)

      The police were “seriously derelict” in their duty in not obtaining a second statement and when the matter was raised with the Director of Public Prosecutions (“DPP”) nothing further was done.

4. [41]

   It was further submitted that Ms Hay was shown to be a “demonstratable liar” and had a “motive” to protect Mr Bowden. Ms Hay’s inconsistent evidence during the trial is relied upon as one of the matters underpinning her unreliability. By way of example, Ms Hay initially gave evidence that she could not recall whether the accused were armed. However, after refreshing her memory from her induced statement, she adhered to her account in that statement that all four men were armed.

5. [42]

   Listening device material from Diamond Beach revealed that she had failed to tell police about Mr Bowden’s admission that he stabbed the deceased and she confirmed at the trial that she told the police false information in relation to Mr Taylor to protect Mr Bowden.

6. [43]

   Other factors relied upon to demonstrate that it was not reasonable to commence proceedings include there being no direct evidence connecting Mr Taylor with the assault on the deceased; telephone intercepts of conversations between Mr Taylor and family members which include exculpatory accounts; and the lack of action by the police in not charging Ms Hay for the lies she told in her induced statement about Mr Taylor.

7. [44]

   Ms Carroll, on behalf of Mr Locke, submitted that there are two key groups of facts that comprise “all of the relevant facts” the prosecution are taken to have been in possession of at the time of instituting proceedings.

8. [45]

   First, that Ms Hay should never have been accepted as truthful nor accurate, particularly when combined with the listening device material. A second statement was never obtained, despite the police being aware of the “falsities” in her statement, and the prosecution being aware of the listening device material.

9. [46]

   Second, independent evidence contained in CCTV footage, the Forensic Pathologist’s evidence and listening device material demonstrate the extent of Ms Hay’s lies and her conscious manipulation of the truth.

10. [47]

    Listening device material from Diamond Beach provided the prosecution with clear evidence that Ms Hay was being assisted by others, to concoct a demonstrably false version of the events that occurred at Bunyarra Reserve. This made her not only an unreliable witness, but a witness who was committing acts to pervert the course of justice. Notwithstanding the objective evidence that went to the heart of her credibility, Ms Hay continued to be the Crown’s principal witness in the trial.

11. [48]

    It is submitted that had the “hypothetical prosecutor” considered the above factors, it would not have been reasonable to institute proceedings.

12. [49]

    Mr Steel, on behalf of Mr Dillon, also set out “all the relevant facts” and submitted that they “militate in favour of a finding of unreasonableness”. These include:

    1. (1)

       Having regard to the unreliability of Ms Hay based on her evidence at trial, the lies in her police statement and listening device material which revealed that she concocted a demonstrably false account of the events at Bunyarra Reserve, it was not reasonable for the prosecution to institute and continue proceedings with respect to Mr Dillon.

    2. (2)

       CCTV footage obtained during the course of the investigation shows that Mr Taylor was chasing Mr Ambler at Bunyarra Reserve. This was objective evidence supporting the fact that Ms Hay had lied in her induced statement.

    3. (3)

       The forensic evidence did not support Ms Hay’s account in her induced statement that the deceased was set upon by the four accused.

    4. (4)

       The evidence of Detective Sergeant Sparkes revealed that it was evident that investigating police and the prosecution were aware about the lies that Ms Hay had told in relation to Mr Taylor, however a second statement was not taken.

    5. (5)

       Ms Hay’s evidence that she saw blood stains on the hand or hands of Mr Dillon when he returned to the white Audi in Bunyarra Reserve (a fact which she said she could not recall in cross-examination), was unreliable.

    6. (6)

       Agreed facts (Exhibit C44) revealed that Mr Dillon was unarmed as he ran down McAuley Crescent.

    7. (7)

       The Crown’s reliance on blood stains near where Mr Dillon was sitting in the car as a piece of circumstantial evidence that Mr Dillon participated in the assault, is unconvincing. The blood stains only contained the DNA of the deceased. There was a reasonable possibility available on the evidence, that it was Mr Bowden who deposited those blood stains in the process of exiting the vehicle from the left passenger’s door.

13. [50]

    Before I summarise the Crown’s submissions, it is appropriate at this stage to deal with a preliminary matter that arose during oral submissions. In identifying the “relevant facts”, the Crown relies upon the material that was ruled to be inadmissible. That material can be summarised as follows:

    1. (1)

       Representations made by Ms Byrne in her police statement dated 5 November 2020 (at [24]) that Mr Locke said, “I got him”, while imitating a stabbing motion to the head region.

    2. (2)

       Representations made by Ms Byrne in her statement (at [24]) that Mr Dillon said, “Yeah we got him”.

    3. (3)

       Representations made by Ms Byrne in her statement (at [24]) that Mr Taylor referred to “the white man” (Mr Ambler) saying “I got him and bashed him.”

    4. (4)

       Representations made by Ms Byrne in her statement (at [24]) that “one of the boys” wanted to dispose of a knife in her bin.

    5. (5)

       Representations made by Ms May in her police statement dated 30 October 2020 (at [35]) that, “Jake told me that he had done it.”

    6. (6)

       Representations made by Amber O’Connell, in his statement to police dated 24 November 2020 (at [6]) that he overheard a male voice screaming, “get back here”, and “I will kill you, I will kill you”. The witness did not attribute these words to any particular person that could be identified.

14. [51]

    Objection was also taken to several intercepted telephone calls between Mr Dillon and his mother.

15. [52]

    This material was excluded and did not form part of the evidence before the jury.

16. [53]

    On behalf of Mr Dillon and Mr Locke, it was submitted that in applying the test pursuant to s 3(1) of the Act, the Court would not have regard to evidence that was not admissible, or was ruled inadmissible, at the trial. It was submitted that where the Court must determine the relevant facts on an application of the s 3(1) test, such an assessment inevitably involves a consideration of the evidence that was in fact relevant and admissible. Where evidence is ruled to be inadmissible in any proceedings, it ought not be considered as part of the application.

17. [54]

    It was further submitted on behalf of the applicants that in deciding whether to maintain the prosecution for murder, the hypothetical prosecutor’s objective analysis of the whole of the relevant evidence must include a consideration of whether evidence may be inadmissible at any trial pursuant to the Evidence Act 1995 (NSW).

18. [55]

    The Crown submitted that the reasonable prosecutor, in the circumstances of the present application, was entitled to seek to adduce the evidence subsequently ruled to be inadmissible at trial, not knowing what findings would be made on each voir dire and how the trial judge’s discretion (where applicable) would be exercised during pre-trial applications and applications during the trial.

19. [56]

    The Crown submitted that the Court is entitled to take into account evidence ruled inadmissible in determining the question under s 3(1) of the Act.

20. [57]

    I am satisfied that where the Court must determine the “relevant facts” on an application pursuant to s 3(1) of the Act, it is entitled to take into account evidence that was ruled inadmissible, unless the legal principles are so clear that the hypothetical prosecutor ought not to have sought to rely upon the evidence and where to do so would constitute an unreasonable exercise of the prosecutorial discretion.

21. [58]

    In R v Moore [2015] NSWSC 1263 (“Moore”), Hamill J considered s 3 of the Act, summarising a number of relevant propositions, observing at [23]:

22. [59]

    His Honour continued at [28]–[29], stating:

23. [60]

    More recently, N Adams J had occasion to consider the issue in R v Hannah Quinn (No 2) [2021] NSWSC 494 (“Quinn (No 2)”). In doing so, her Honour adopted the principle set out by Hamill J in Moore at [28]-[29], noting that there will be cases where the hypothetical prosecutor ought not to have attempted to tender evidence and where to do so will constitute an unreasonable exercise of prosecutorial discretion: Quinn (No 2) at [147]; R v Singh (No 8) [2023] NSWSC 51 at [18]; R v Officer A (No 3) [2024] NSWSC 1265 at [15].

24. [61]

    The hypothetical prosecutor is not to be attributed with the ability to predict rulings on admissibility of evidence, particularly where such rulings depend upon the exercise of judicial discretion. I accept that there may still be cases where the hypothetical prosecutor ought not to have attempted to tender evidence, where to do so will constitute an unreasonable exercise of the prosecutorial discretion for the purpose of the application of s 3 of the Act.

25. [62]

    The evidence of Ms Byrne and Ms May, that was excluded, as it pertained to Mr Locke and Mr Dillon, does not fall into the category of case where the hypothetical prosecutor ought not to have attempted to tender the evidence. It is material which I can take into account in determining the question under s 3(1) of the Act.

26. [63]

    The Crown opposes each application. The Crown submits that simply because all the facts necessary for a conviction were not found beyond reasonable doubt, it does not follow that the commencement of the prosecution was unreasonable. A judgment of acquittal in favour of an accused does not necessarily mean that it was not reasonable to have prosecuted the accused.

27. [64]

    The Crown case at trial relied on joint criminal enterprise and in the alternative, extended joint criminal enterprise. The Crown submitted that there was compelling evidence available to the hypothetical prosecutor to prove the elements of murder and, in the alternative manslaughter.

28. [65]

    Essentially, the Crown submitted that the assessment of the credibility and reliability of Ms Hay’s evidence were matters to be assessed by the jury. Much of her evidence was not in dispute in the trial and was consistent with the evidence of other witnesses.

29. [66]

    The Crown also points to circumstantial evidence that supported the Crown case. The circumstantial evidence includes evidence that Mr Taylor was the driver of the Audi at all relevant times from when it was driven away from Bungarribee until it was driven back to Lauder Street, Doonside; evidence that the home invasion and the events following the home invasion took place; CCTV footage from various locations that supported the Crown case that some or all of the accused were armed with weapons; evidence in relation to the use of mobile phones; evidence in Mr Taylor’s case of lawfully recorded telephone conversations; and evidence of lawfully recorded conversations captured by listening device.

30. [67]

    Ultimately, the Crown submitted that when consideration is given to all the relevant facts, including the evidence of Ms Hay and the evidence of other witnesses and exhibits tendered in the trial, the applicants have not established that it would have been unreasonable to institute proceedings.

Legislative Framework

1. [68]

   The Act provides an exception to the general rule that costs are not made in criminal proceedings. Section 2 of the Act provides the power for the court to award costs to a defendant who is acquitted of criminal charges.

2. [69]

   Section 2 of the Act provides:

3. [70]

   Section 3 of the Act provides:

4. [71]

   The phrase “all the relevant facts” in s 3(1)(a), is a term defined in s 3A(1) of the Act in the following manner:

5. [72]

   Section 42 of the Legal Aid Commission Act 1979 (NSW) is also relevant, as Mr Taylor was granted legal aid by the Legal Aid Commission NSW. Section 42 provides:

6. [73]

   The pre-conditions attaching to the grant of a certificate pursuant to s 3(1) of the Act were stated in Lam v R (No.2) [2024] NSWCCA 237, at [8]:

7. [74]

   In this case, the Crown does not submit that there was any relevant act or omission of the applicants of a kind that fell within pre-condition (e).

8. [75]

   As referred to above, s 3A(1) defines “all the relevant facts” to include:

   1. (1)

      Those established in the proceedings;

   2. (2)

      Any established by the applicant on the costs application; and

   3. (3)

      Any evidence from the prosecution that was not adduced in proceedings that is relevant to the case.

9. [76]

   The applicants bear the onus of satisfying the Court of the matters in s 3(1) of the Act: Mordaunt v Director of Public Prosecutions (NSW) (2007) 171 A Crim R 510; [2007] NSWCA 121 (“Mordaunt”) at [36(d)].

Legal Principles

1. [77]

   In Rodden v R (2023) 112 NSWLR 162; [2023] NSWCCA 202 the Court (constituted of Bell CJ, Leeming JA and Beech-Jones JA (as his Honour then was)), held that the Act ought not to be construed in a manner that prevents legally aided applicants from being granted costs certificates. The matter to be addressed on any application for a costs certificate is that which is set out in s 3 of the Act, irrespective of whether the applicant for the certificate is legally aided: Rodden at [110]-[113].

2. [78]

   The test the Court is required to consider in determining whether to grant a certificate in a criminal case, was considered in R v Pavy (1997) 98 A Crim R 396 (“Pavy”) at 399 (and adopted in R v Groom [2000] NSWCCA 538 at [8]):

3. [79]

   The relevant principles were set out in in Mordaunt at [36]:

4. [80]

   These principles were referred to and adopted more recently in Cox v R (No 2) [2017] NSWCCA 129 at [4].

5. [81]

   The principles are well-established. In a Crown case that relies on the evidence of a witness whose credibility and reliability is in issue; costs will not usually be awarded. But that is not always the case: R v Barrett [2024] NSWSC 433 (“Barrett”) at [46]. In cases that turn largely on the credibility or reliability of one witness, consideration of “all the relevant facts” may militate in favour of a finding of unreasonableness: Quinn (No 2) at [142] per N Adams J.

6. [82]

   In Higgins v R (No 2) [2022] NSWCCA 82 (“Higgins (No 2)”), the Court of Criminal Appeal held at [20]-[21], and [24]:

Determination

1. [83]

   A finding as to whether the prosecution did in fact have available to it evidence of all the relevant facts, must turn on the precise and peculiar facts and circumstances of the case: Higgins (No 2) at [24]; Barrett at [48].

2. [84]

   The reluctance to formulate a strict test to be applied in criminal cases was discussed in Fejsa v R (1995) 82 A Crim R 253 at 255:

3. [85]

   Jaysin Hay was the Crown’s star witness at trial. Ms Hay was the only eyewitness called by the Crown on the events that occurred in Bunyarra Reserve. The Crown relied upon her evidence to establish, amongst other things, that each accused was armed with either a knife or a screwdriver at Bungarribee and thereafter; that all four accused got out of the car and ran after the deceased at Bunyarra Reserve; that the four accused caught up with the deceased and there was a “punch on” where he was struck with hands and feet.

4. [86]

   Ms Hay provided an induced statement to police on 30 October 2020. The statement was marked MFI 6 at trial.

5. [87]

   Relevantly, in her statement Ms Hay detailed that all four of the accused ran after the deceased at [42]-[43]:

6. [88]

   A number of conversations were captured by listening device at 39B Emerald Drive, Diamond Beach. The conversations were between Ms Hay, Ms Byrne, Ms May and Jamie Saliba.

7. [89]

   Portions of the listening device material directly contradict Ms Hay’s account in her statement as to the actions of Mr Taylor once the men got out of the car at Bunyarra Reserve.

8. [90]

   Ms May was cross-examined by Mr Evers on 27 May 2024 in relation to the contents of listening device product on 28 October 2020 as follows:

9. [91]

   During cross-examination Ms May was shown a transcript of the recording of listening device product on 28 October 2020 (MFI 19). MFI 19 contained the following exchange:

10. [92]

    A further conversation captured by listening device on 31 October 2020 at 12:04:35 (MFI 13), which was played before the jury (Exhibit ZL2) recorded the following exchange:

11. [93]

    The listening device material from Diamond Beach reveals that there was an attempt to tailor the account given to the police by Ms Hay. Ms May and Mr Saliba were suggesting what should be left out and what should be said. Pressure was placed on Ms Hay to give a version that they wanted to tell the police to benefit Mr Bowden. So much was accepted by Ms Hay when she was cross-examined by Ms Carroll and Mr Peluso at trial.

12. [94]

    Ms Hay was called to give evidence in the Crown case on 21 May 2024. During Ms Hay’s evidence-in-chief, she volunteered that Mr Taylor was not one of the men who confronted the deceased in Bunyarra Reserve:

13. [95]

    The reference to the “white man” is a reference to Mr Ambler. This evidence that “Evan” was chasing the white male was supported by objective evidence contained in CCTV footage that showed Mr Ambler running out of Bunyarra Reserve, being chased by another male. This evidence, supported as it was by the CCTV footage, was completely inconsistent with Ms Hay’s account, in her induced statement, that all four accused, upon exiting their vehicle at Bunyarra Reserve, chased and caught up with the deceased and engaged in a violent altercation with him.

14. [96]

    In cross-examination by Mr Steele on 23 May 2024, Ms Hay confirmed her earlier account that “Evan” chased after the white male:

15. [97]

    In cross examination by Ms Carroll on 23 May 2024 some of the listening device product was put to Ms Hay where she conceded that she lied to benefit Mr Bowden:

16. [98]

    Further, Ms Hay conceded that “the parts about Evan” in her statement were a lie:

17. [99]

    In cross-examination by Mr Peluso on 23 May 2024, the following questions were put to Ms Hay. The exchange is as follows:

18. [100]

    Further in cross-examination by Mr Peluso, Ms Hay conceded that Mr Taylor was not present during the altercation with the deceased:

19. [101]

    Ms Hay also gave evidence during cross-examination by Mr Peluso that she was asked to make a statement not long after her first statement. The exchange is as follows:

20. [102]

    When she was taken back to her statement by the Crown in re-examination, she maintained that what she told the police at paragraph [43] of her statement was the truth. However, she acknowledged that when she made her induced statement, she left out that Mr Taylor had chased the “white male”. The following questions were put to Ms Hay:

21. [103]

    In the course of the investigation police obtained CCTV footage of the area surrounding Bunyarra Reserve. This was tendered at trial and marked Exhibit C35. A number of stills were taken of the CCTV footage and marked Exhibit C36. It indicated the silhouette of a male figure running out of the Reserve and another male in pursuit who stops the chase before turning around and going back into the Reserve. It was not disputed in the trial that the first man was Mr Ambler and the man chasing him was Mr Taylor. It is not feasible that Mr Taylor could have chased after Mr Ambler and also participated in the assault on the deceased, before he gave chase.

22. [104]

    Not only is her account about Mr Taylor, as it appears in the statement, shown to be a deliberate lie by virtue of listening device product, but it is also demonstrated to be a lie by virtue of the CCTV footage depicting a second male running after Mr Ambler.

23. [105]

    Ms Hay said in her statement that the four men caught up with the deceased and kicked and punched him to the body. There was no forensic evidence to support that account. Dr Little gave evidence that there was no evidence of blunt force injury to the deceased.

24. [106]

    Dr Little was the Forensic Pathologist who conducted the autopsy on the deceased. In cross-examination on 30 May 2024 by Mr Evers, Dr Little answered questions with respect to the blunt force injuries:

25. [107]

    That there is no blunt force trauma appears to be inconsistent with the evidence provided by Ms Hay that all the accused were punching and kicking the deceased.

26. [108]

    Detective Sergeant Sparkes, the OIC, gave evidence that witnesses lie all the time in their statements. In this case, Ms Hay’s lie about Mr Taylor was detected because of the listening device product. In giving evidence, the OIC said that he considered the lie to be Ms Hay’s account that all four of the men went after the black guy as soon as they got out of the car, whereas, in effect, Evan, ran after the white guy once he got out of the car.

27. [109]

    The Officer in Charge was cross-examined by Mr Peluso on 12 June 2024 to this effect:

28. [110]

    Evidence was adduced about the contents of a conversation with the Crown Prosecutor during a conference (about which notes were taken) as follows:

29. [111]

    I reject the Crown submission that the evidence of Ms Hay against Mr Taylor was capable, together with other evidence in the trial, of establishing the guilt of Mr Taylor beyond reasonable doubt. Such a submission fails to grapple with the essential contention that the clear evidence is that Ms Hay lied about Mr Taylor in crucial and critical respects.

30. [112]

    The evidence in the trial gives rise to the following conclusions.

31. [113]

    First, the representations captured by the listening devices, clearly establish that Ms Hay not only omitted to tell the police that Mr Taylor had chased after Mr Ambler, but that she had deliberately lied by telling police that Mr Taylor was one of the four men who chased and caught up with the deceased and engaged in the violent altercation with him. That lie was deliberate and done in an effort to minimise Mr Bowden’s role.

32. [114]

    Second, the response by investigating police was entirely inadequate. It was clear to investigating police, as of late 2020, that Ms Hay had lied in her police statement in respect of Mr Taylor’s role in the altercation with the deceased. The attempts to obtain a second statement from Ms Hay to clarify her evidence and to obtain a true version from her about Mr Taylor’s role, were insufficient and fell short of the efforts required in a murder investigation.

33. [115]

    Third, while it was true that much of Ms Hay’s evidence was not in dispute, the areas of her evidence that were in dispute were critical to the Crown case. She was the only eyewitness (other than the accused) to what took place in Bunyarra Reserve. Without her evidence, the prosecution could not establish the elements of murder beyond reasonable doubt.

34. [116]

    Fourth, the fact that the accused did not make an application for no further proceedings is not relevant, let alone determinative of the application for costs.

35. [117]

    Fifth, in the case of Mr Taylor, other evidence in the trial, was not capable of supporting the evidence of Ms Hay such as to make the institution of proceedings against Mr Taylor reasonable. It must be remembered that in his case, there was clear evidence Ms Hay lied about his involvement. The evidence of the lie was captured by listening devices.

36. [118]

    Six, the telephone intercept material upon which the Crown relied against Mr Taylor, contained admissions that he was present at Bunyarra Reserve. However, it was replete with exculpatory material in relation to his involvement in the murder or manslaughter of the deceased.

37. [119]

    I am comfortably of the view, in the case of Mr Taylor, that a certificate should be granted. In his case, given the deliberate lies by Ms Hay, “the word upon which the Crown case depended had been demonstrated to be one which was very substantially lacking credit”. The critical evidence of Ms Hay, against Mr Taylor, could not withstand scrutiny.

38. [120]

    I am satisfied in his case that if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute proceedings.

39. [121]

    Accordingly, in the case of Mr Taylor I make the following order:

    1. (1)

       I grant to Evan Taylor a certificate pursuant to ss 2 and 3 of the Costs in Criminal Cases Act 1967 (NSW) in relation to the whole of the proceedings.

40. [122]

    I am not, however, persuaded in the case of Mr Locke and Mr Dillon that there should be a grant of a certificate pursuant to the Act.

41. [123]

    Although Ms Hay was a critical witness for the Crown in each case, she maintained or adopted her account with respect to the involvement of Mr Locke and Mr Dillon. While her evidence, and in particular her account about what took place at Bunyarra Reserve, was the subject of robust challenge, Ms Hay maintained the accuracy of what she told the police with respect to these two applicants.

42. [124]

    I have had regard to the matters that undermined Ms Hay’s credibility and reliability which included the lie she told about Mr Taylor, inconsistencies in her evidence and her poor memory. However, Ms Hay disagreed with propositions put on behalf of the applicants that they were not armed. In addition, she maintained that the account she gave against Mr Locke and Mr Dillon in her induced statement was true.

43. [125]

    In support of her account about Mr Locke and Mr Dillon was the circumstantial evidence relied upon by the Crown which included the evidence that the deceased and his associates committed a home invasion on the premises at which Mr Bowden resided. The assailants had threatened and assaulted Mr Bowden and his mother.

44. [126]

    The Crown also relied upon evidence that Mr Locke and Mr Dillon, together with others used the “Find My iPhone” application to locate Ms Hay’s phone. That endeavour took them to Bungarribee and later to McAuley Crescent where there was a confrontation between Ms May and others present at that location.

45. [127]

    There was evidence that the vehicle the applicants occupied pursued the Murano to Bunyarra Reserve until the Murano collided in the creek. The evidence supported the Crown case that the applicants were involved in the pursuit in an effort to find the perpetrators of the home invasion and, on the Crown case, exact revenge.

46. [128]

    The reliability and credibility of the evidence of Ms Hay against Mr Locke and Mr Dillon, in the context of the wider Crown case, were matters within the realm of the jury to decide.

47. [129]

    I am not persuaded, in the case of Mr Locke and Mr Dillon, that it would not have been reasonable for the hypothetical prosecutor, equipped with all the relevant facts, to institute proceedings.

48. [130]

    Accordingly, in the case of Mr Locke and Mr Dillon, I make the following orders:

    1. (1)

       Each application is dismissed.