Cross v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0031

NICHOLAS JAMES CROSS	Applicant
v
THE KING	Respondent

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JUDGES:	WALKER, TAYLOR and BOYCE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	29 April 2024
DATE OF JUDGMENT:	19 September 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 208
JUDGMENT APPEALED FROM:	DPP v Cross [2022] VSC 314 (Incerti J)

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CRIMINAL LAW – Conviction – Applicant convicted by murder in judge alone trial – Deceased shot in a tent at Geelong Showgrounds – Principal witness gave evidence that he saw applicant fire fatal shot as principal witness participated in a telephone call – Applicant gave evidence that he saw principal witness fire fatal shot prior to telephone call – Agreed evidence that other party to telephone call heard nothing unusual – Whether judge erred in approach to agreed evidence – Whether judge erred in approach to evidence of events said to have occurred during telephone call – Whether judge erred in approach to evidence of the timing of the shooting – Leave to appeal refused.

Evidence Act 2008, s 191.

Henshaw v The Queen (2021) 294 A Crim R 103, considered.

CRIMINAL LAW – Conviction – Witness camped at Showgrounds gave evidence that she saw principal witness at Showgrounds hours after deceased shot – Principal witness gave evidence that he was then at his mother’s house – Mother of principal witness gave evidence that principal witness was at her house – Whether judge erred in approach to evidence of witness who saw principal witness at Showgrounds hours after deceased shot – Whether judge erred in approach to evidence of purported return of principal witness to Showgrounds – Leave to appeal refused.

CRIMINAL LAW – Conviction – Evidence of forensic pathologist of bullet tract in brain of deceased – Whether description by principal witness of position of applicant and deceased at the moment shot was fired was possible – Whether judge made findings contrary to the evidence of position of applicant and deceased – Leave to appeal refused.

CRIMINAL LAW – Conviction – Judge gave herself warning as to potential unreliability of evidence of principal witness – Whether judge failed to do so properly – Leave to appeal refused.

Jury Directions Act 2015, s 32.

CRIMINAL LAW – Whether verdict of judge unreasonable or insupportable – Leave to appeal refused.

Criminal Procedure Act 2009, s 276(1)(a).

M v The Queen (1994) 181 CLR 487; Pell v The Queen (2020) 268 CLR 123; Dansie v The Queen (2022) 274 CLR 651, followed.

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Counsel
Applicant:		Mr G Casement with Ms L Andrews
Respondent:		Ms E Ruddle KC with Mr G Buchhorn
Solicitors
Applicant:	Adrian Paull Criminal Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

WALKER JA
TAYLOR JA
BOYCE JA:

Introduction

An indictment filed in the Supreme Court of Victoria charged the applicant with the murder of Maddison Jane Pante.
The applicant’s trial was initially scheduled to commence on 18 May 2021. That listing was vacated as a result of complications arising from the COVID-19 pandemic. Several subsequent listings were made and vacated for the same reason. A trial commenced on 8 March 2022, but the jury was discharged on 15 March 2022. On 30 March 2022 the applicant applied for and was granted a trial by judge alone.[1]
[1]Pursuant to s 420E of the Criminal Procedure Act 2009.
The applicant’s trial occupied some 17 sitting days and concluded on 4 May 2022.
On 10 June 2022 the judge announced her verdict, finding the applicant guilty. Written reasons for the verdict were published.[2] Following a plea hearing, the applicant was sentenced on 10 February 2023 to 27 years’ imprisonment, with a non-parole period of 21 years.[3]
[2]DPP v Cross [2022] VSC 314 (‘Reasons’).
[3]DPP v Cross (No 2) [2023] VSC 40.
The applicant now seeks leave to appeal against his conviction and relies on eight proposed grounds formulated as follows:
1.The Learned Trial Judge erred in her approach to the agreed evidence of the Centrelink operator of the telephone call with Brodi Costello between approximately 8.43 am and 8.48 am on the 3^rd of December 2018.
2.The Learned Trial Judge erred in her approach to the evidence of the events that occurred during the Centrelink call.
3.The Learned Trial Judge erred in her approach to the evidence of the timing of the shooting.
4.The Learned Trial Judge erred in her approach to the evidence of Diana Callison that on the afternoon of the 3^rd of December 2018, she saw a man previously associated with the tent exiting from it, with clothing.
5.The Learned Trial Judge erred in her approach to the evidence of Brodi Costello’s return to the Showground on the afternoon of 3 December 2018.
6.The Learned Trial Judge erred in making findings contrary to the evidence on the position of the Accused and the Deceased at the time of the shooting.
7.The Learned Trial Judge erred by failing to properly warn herself as to the unreliability of the evidence of Brodi Costello.
8.The verdict of the Learned Trial Judge was unsafe and unsatisfactory.
For the reasons that follow, we would refuse leave to appeal.

The key issue in dispute

Ms Pante died as a result of a gunshot to the forehead. The prosecution alleged that she was shot by the applicant while they were both inside a ‘glamping’[4] tent erected at the Geelong Showgrounds (‘Showgrounds’) in Breakwater, Geelong on the morning of Monday 3 December 2018.
[4]Meaning glamorous camping.
It was agreed between the parties that the applicant brought the firearm with which Ms Pante was shot to the Showgrounds and into the tent.
It was also agreed that four persons were present in the tent when the shooting occurred: the applicant, Ms Pante, Tracy Menzies and Brodi Costello. Ms Menzies and Mr Costello were both friends of the applicant. Ms Pante was Mr Costello’s intimate partner. She and the applicant had known each other for about a month.
Ms Menzies was not called in the trial.[5]
[5]The judge gave herself an anti-speculation warning with respect to the evidence Ms Menzies might have given: Reasons, [33].
Mr Costello gave evidence that the applicant and Ms Pante were arguing as he was seated on the bed and engaged in a telephone call. He said he saw the applicant suddenly produce a firearm and shoot Ms Pante.
The applicant gave evidence that it was Mr Costello who shot Ms Pante. He said that he had placed the gun on the bed in the tent. He said that Mr Costello picked up the gun from the bed and, believing it to be unloaded, cocked it, pointed it at Ms Pante and fired.
The two eye witness accounts before the court were irreconcilable. Either Mr Costello or the applicant lied in his evidence. To convict the applicant it was necessary for the judge to both reject the evidence of the applicant as untruthful and accept the evidence of Mr Costello beyond reasonable doubt.[6]
[6]The judge directed herself accordingly: Reasons, [32].
Aside from the evidence of Mr Costello (and the evidence of other witnesses said to be corroborative or supportive of it), the prosecution also relied on a body of circumstantial evidence with respect to the applicant’s post-offence conduct which, it contended, evidenced a belief in the applicant that he had murdered Ms Pante.

The trial

So as to understand the proposed grounds, it is necessary to summarise the prosecution and defence cases. Specific parts of the evidence will be further detailed below when relevant to the analysis of the proposed grounds.

The prosecution case

Ms Pante and Mr Costello met in October 2018. Shortly thereafter they commenced an intimate relationship. In the weeks prior to her death neither Ms Pante nor Mr Costello had stable accommodation. Each was using illicit drugs.
The applicant had known Mr Costello since 2017. He met Ms Pante in early November 2018.
On Friday 30 November and Saturday 1 December 2018 Mr Costello and Ms Pante stayed at the Kardinia Motel. Upon checking out on 2 December 2018, Mr Costello attended an apartment in Malop Street, Geelong. There he met his friend, Eli Cashion. Jesse Hollonds, an acquaintance of both Mr Costello and Ms Pante, was also present.
Mr Cashion ran a business hiring out glamping tents. He had known Mr Costello since primary school. Mr Cashion was in pretty regular contact with Mr Costello in December 2018. He offered Mr Costello the use of a tent until Mr Costello could find more stable accommodation. On the afternoon of Sunday 2 December 2018, Mr Costello and Mr Cashion erected a tent at the Showgrounds for Mr Costello to stay in.
Diana Callison, who was travelling around Victoria with her husband John, was staying at the Showgrounds at this time. She arrived at the Showgrounds at about 1:45 pm on Sunday 2 December 2018 and noticed two men setting up what ‘looked like a circus tent’ (agreed to be the glamping tent). She made a comment to one of the men — who she described as being a ‘young man approximately about 20…[with] dark shoulder length hair’— that setting up the tent looked like hard work. The young man was agreed to be Mr Costello.
That night, Mr Costello stayed in the tent at the Showgrounds by himself.
Ms Pante had, together with Mr Hollonds, driven to Torquay to pick up an acquaintance, Jake Fry. They remained together throughout the night, seemingly engaged in various drug transactions. Between 2:43 am and 7:49 am on 3 December 2018, the applicant exchanged several Facebook messages with, and made several voice calls to, Ms Pante.
Mr Costello was expecting a phone call from Centrelink on the morning of Monday 3 December 2018. The call was necessary to finalise his application for Newstart Allowance. He set his alarm and woke up at about 7:30 am. Mr Costello’s phone records show that he called Mr Cashion at 7:44 am, and also called Ms Pante and sent her a text message at 7:47 am and 7:48 am respectively. The records also show that he sent and received text messages to and from a person recorded in his mobile phone as ‘Millzy’ between 7:42 am and 8:27 am.
Prior to the Centrelink call, Mr Costello also visited the shower block.
John Callison, the husband of Diana Callison, said that he saw a man with dark hair and a moustache at the shower block at about 8:00 am or 8:15 am. Mr Callison said that the man was only wearing underpants and seemed to be in a hurry, so he shaved while the man showered. The man told Mr Callison that he had put up the tent, was not working and was from Colac.
The applicant arrived at the tent with Ms Menzies in a grey Suzuki Swift. He was in possession of a firearm. A short time thereafter Mr Hollonds, Mr Fry and Ms Pante arrived in a car driven by Mr Hollonds. Mr Hollonds said that they arrived before 9:00 am and recalled at some stage seeing the time on the clock was ‘like, eight, half past eight at some stage’. He said that he went to the Showgrounds because Ms Pante told him that she owed money to the applicant and had brought jackets she intended to use in a transaction with him. They were in garbage bags in the boot of Mr Hollonds’ car. Mr Fry said that he had a very significant ice habit at the time. He was just waking up as they arrived at the Showgrounds and he was in a poor state due to his use of alcohol and ice.
Mr Hollonds said that Ms Pante exited his car and spoke to the applicant. At some stage Mr Hollonds moved the car so that it was closer to the tent — ‘a few metres away’ — so that it was off the roadway. He said that he was focussed on his mobile phone rather than what was occurring outside the car. He did not recall seeing Ms Pante enter the tent more than once or seeing the applicant enter the tent at all and he did not see Mr Costello leave the shower block.
Mr Hollonds said that before he moved his car, the applicant was trying on the jackets in the boot. He could not hear the conversation between the applicant and Ms Pante, but it ‘didn’t seem tense’ and there was no ‘aggro’ or animosity. Sometime after he had moved the car Ms Pante entered the backseat. Almost immediately she exited again leaving her mobile phone behind. When she did so she seemed ‘agitated’ and ‘angry about something’. Mr Hollonds then saw her talking to someone through the door of the tent ‘almost like they were arguing’. Ms Pante then stepped inside.
Mr Fry said that Ms Pante did not have a bag of clothes with her and at no stage did she or anyone else try them on. She got out of the car and entered a tent. He could hear her having a ‘heated discussion’ with what he thought was a male but he could not understand what was said. Ms Pante then returned to the car looking angry. He asked her what was wrong, she said ‘nothing’ and again left the car and entered the tent. Mr Fry heard further ‘heated discussion’.
Mr Fry said that he did not speak with anybody outside the car and never entered the tent. Mr Hollonds said that he saw Mr Fry speak with the applicant outside the car. He never saw Mr Fry enter the tent. Mr Fry denied witnessing the applicant throw a gun on the bed in the tent. He also denied knowing a man named Jeremy Bingham, that he owed that person a drug debt or was concerned about Mr Bingham coming after his girlfriend. He further denied speaking with the applicant about using the applicant’s firearm to rob a drug dealer named Harry Dickinson.
Mr Costello received the call from Centrelink at 8:43 am.[7] It lasted for 4 minutes and 59 seconds. Mr Costello gave evidence that he was sitting on the bed in the tent when he received this call and the only other person then present in the tent was Ms Menzies. Mr Costello said that while he was on the phone the applicant and Ms Pante entered the tent, arguing. He told them to quieten down several times so he could concentrate on the call. He said that the applicant suddenly produced a firearm and shot Ms Pante.
[7]This was not in dispute and was established be telephone records.
Mr Costello said that at the time of the shooting the applicant was facing Ms Pante. Both were standing upright. Ms Pante was facing the applicant. He shot her ‘at point blank’ range with his arm completely stretched out. As soon as she was shot, Ms Pante fell backwards.
Mr Costello said that he immediately started ‘freaking out’ and ‘panicking’. He paced up and down the tent. The applicant came over and told him how sorry he was. Mr Costello was still on the phone to the Centrelink officer but was not concentrating on the call. He did not have the phone to his ear at all times. He gave short affirmative responses such as ‘yep, yep, no worries’ to ensure the payment would be approved.
Mr Hollonds and Mr Fry, still sitting in Mr Hollonds’ car, heard what sounded like a gunshot. Mr Hollonds said that this was ‘a few minutes tops’ after Ms Pante entered the tent. Mr Fry said it was after about five to 10 seconds. Mr Hollonds said that the car windows were wound up but the passenger side window ‘might have been down a crack’. They immediately drove away. In his rear view mirror Mr Hollonds saw Mr Costello, the applicant and a woman exit the tent. Mr Hollonds and Mr Fry drove to Torquay and used ice.
After a brief exchange with the applicant during which he expressed his reluctance to get in the Suzuki Swift — ‘I can’t fucking get in the car’ — Mr Costello agreed to go with the applicant and Ms Menzies. He said that his Centrelink call ended about two minutes after he got in the car.
It was an agreed fact in the trial that the Centrelink officer said, when asked some days after 3 December 2018, that he heard nothing ‘unusual’ during the call.
The applicant drove to the caretaker’s office at the Showgrounds. Mr Costello paid for another night for the campsite. It was his evidence that he did so at the applicant’s direction using money provided by the applicant. The caretaker, William Steele, recorded Mr Costello’s name as ‘Mr Brody’. The recorded phone number omitted one digit from Mr Costello’s actual number. Mr Steele was cross-examined by the prosecution under s 38 of the Evidence Act. He disagreed that it was possible that the man gave him all ten digits of the phone number and he either did not hear or did not record one of them. He also denied that the man gave his name as ‘Brodi Costello’.
Shortly thereafter the applicant drove to a two dollar shop at Belmont. Mr Costello said that, at the direction of the applicant, he there purchased a padlock for the tent using the applicant’s money. The applicant then drove Mr Costello and Ms Menzies back to the tent where, on Mr Costello’s account, he removed bags containing his belongings after which the applicant locked the tent and retained the key.
The applicant, together with Mr Costello and Ms Menzies, then travelled in the Suzuki Swift to a house in Norlane in which Shannon Purdie and Geoffrey Evans lived. They were friends of the applicant.[8] Mr Evans said that the applicant told him that the registration plate of the Suzuki Swift — IDC4YQ — stood for the phrase ‘I don’t care for your questioning’. Mr Costello and Ms Menzies swapped into a white Hyundai i30. That car had been stolen from a beachside carpark on 1 December 2018. Mr Costello said that prior to his departure with Ms Menzies in the stolen Hyundai, the applicant said to him words to the effect of ‘put it all on me’ or ‘you can put the blame on me’.
[8]Both Ms Purdie and Mr Evans gave evidence that they had previously seen the applicant in possession of a firearm. Ms Purdie said that in October 2018 the applicant had a .22 with a brown wooden handle with a silver end. It was approximately 20 centimetres long. She said that she and Mr Evans had retrieved it from someone for the applicant at that time because he had said that it was not his and he needed it back and also that he was in trouble. Mr Evans said in September 2017 the applicant had a small pistol-like firearm with a wooden handle, a bolt-action and a spring mechanism on it. He said he thought it had been hacked down from a rifle. The applicant told him that somebody owed him money and had given him the gun instead. Mr Evans saw the applicant with the same firearm in about October 2018. He and Ms Purdie had retrieved the gun from someone else who said that the applicant needed it back because he was in trouble.
Ms Menzies dropped Mr Costello off at the North Shore Train Station. From there, Mr Costello travelled to the Waurn Ponds Train Station. He then took the train to Colac where his mother, Leonnie Walton, lived. Mr Costello said that he entered through the back door of the house, greeted Ms Walton and went to bed. He woke up briefly for dinner and then slept through until the next day, Tuesday 4 December 2018.
Mr Hollonds and Mr Fry returned to the Showgrounds sometime during the afternoon to return Ms Pante’s belongings still in Mr Hollonds’ car. They saw the padlock on the tent and departed again.
Ms Callison gave evidence that she again saw the same young man she saw setting up the tent — that is Mr Costello — at approximately 5:15 pm on 3 December 2018, being the time her husband was investigating a power outage. She said the man she saw was walking from the tent and heading towards the men’s amenities block carrying a lot of neatly folded clothes. The prosecution cross-examined Ms Callison pursuant to s 38 of the Evidence Act to the effect that she was mistaken that the man she saw on the second occasion was the same man she saw on the first occasion.
Mr Callison said that the power outage was in the evening, about 9:00 or 9:30 pm, after he and his wife had returned to the Showgrounds from a Christmas lights display.
At approximately 1:36 am on Tuesday 4 December 2018, Mr Hollonds, who had again returned to the Showgrounds with Mr Fry, made a call to 000 to report that the glamping tent at the Showgrounds was on fire. Firefighters extinguished the fire and found Ms Pante’s body. Police then arrived and established a crime scene. It was the prosecution case that the applicant was responsible for either personally starting the fire or directing someone else to do so. Unchallenged expert evidence established that the fire had been deliberately lit. Its seat was the mattress inside the tent.

During the morning of 4 December 2018 the applicant sent a number of self-deleting Facebook messages to Ms Purdie, telling her to ‘forget about’ the Suzuki Swift, ‘you know nothing about the 22’, and ‘I love youse all, come and see me soon’. That same afternoon, the applicant sent a series of text messages to an associate, Traveston Drew, in which he said he ‘survived’ the ‘jacks’ and that ‘when they get me I’m doing 10yrs min’.
After Ms Walton came home from work on the afternoon of 4 December 2018, Mr Costello informed her that he had witnessed a murder. Ms Walton called her father and it was decided that Mr Costello should go to the police. The three of them drove to Geelong Police Station where Mr Costello was interviewed by police. During the interview, Mr Costello drew a sketch of the firearm that the applicant had brought to the tent, as well as sketches of the tent depicting its layout and the locations of Ms Pante, the applicant, Ms Menzies and himself at the time of the shooting.
At about 7:42 pm on 4 December 2018 police located a grey Suzuki Swift bearing registration IDC4YQ that was completely burnt out. It was the prosecution case that the applicant personally set the Suzuki Swift on fire or directed someone else to do so.
At about 10:00 pm on 4 December 2018 Christopher Barker received a telephone call from Todd Sell. Mr Sell was a long-time friend of the applicant. Mr Barker met the applicant through Mr Sell. Mr Barker and Mr Sell met up near Footscray Station and drove in Mr Sell’s Mercedes to Mr Barker’s house. The following day when Mr Barker returned home from work, the applicant and Mr Sell were in his back garden with a woman he was later told was Ms Menzies. The applicant was cleaning out a white Hyundai hatchback. He also removed the floor mats, saying that he did not like them.
On Wednesday 5 December 2018 the applicant and Ms Menzies, together with Mr Sell, drove to New South Wales. At about 9:00 pm they arrived at the home of Leif Telfer in Greystanes. That night, the applicant and Ms Menzies slept in the garage. On Thursday 6 December 2018 the applicant, Ms Menzies and Mr Sell were arrested at Mr Telfer’s house. The police executed a search warrant and located a loaded Lithgow .22 calibre rim fibre, bolt action rifle bearing serial number 56759 with a sawn-off barrel and butt stock, along with a container containing 189 x .22 calibre cartridges in the garage.
Leading Senior Constable Paul Griffiths, a firearm and toolmark examiner, gave evidence that a comparison between the .22 calibre rifle found in the applicant’s possession and the bullet found in Ms Pante’s skull demonstrated that the gun used to shoot Ms Pante had the same class characteristics as the .22 calibre rifle found in the applicant’s possession. It could not, however, be definitively established that the gun used to shoot Ms Pante was the same gun found in the applicant’s possession.
Upon autopsy of Ms Pante’s body, the cause of death was found to be a gunshot injury to the head. The bullet passed through Ms Pante’s cerebral hemisphere and brainstem before coming to rest at the rear left side of her skull.

The applicant’s case

The applicant was the only defence witness.
The applicant said that he had three firearms in December 2018. The first, a sawn-off single shot .22 bolt action rifle, a little shorter than 30 centimetres in length, was acquired in early November 2018 in exchange for ice from a man named Matthew Heinz. It was the gun used to shoot Ms Pante. The second, a sawn-off single shot .22 bolt action rifle, around 20 centimetres in length, was the gun that was in the applicant’s possession when he was arrested in New South Wales. It was acquired in 2017 as collateral for a drug debt from a man named Luke Charles. The third was a .410 shotgun acquired in exchange for ice from Mr Heinz.
The applicant said that he visited the Kardinia Motel when Mr Costello and Ms Pante were staying there. He was there to sell drugs. He had the gun that was ultimately used to shoot Ms Pante. While Mr Costello was in the shower, Ms Pante performed oral sex on him in exchange for ice.
About an hour or two later the applicant went outside to conduct a drug sale. He left the gun on the bed in Mr Costello and Ms Pante’s motel room. Upon his return, the applicant was confronted by Mr Costello, who was standing at the foot of the bed and pointing the gun at him. Mr Costello cocked the gun and pulled the trigger, after which it clicked, indicating that the gun was unloaded. Mr Costello also pointed the gun at Ms Pante and cocked it and pulled the trigger before pointing the gun at his own head and doing the same. Although Mr Costello was laughing at this time, the applicant remonstrated with him, stating ‘what the fuck are you doing’ and ‘you never know, that could’ve been loaded’.
The applicant said that his four voice calls with Ms Pante between 4:40 am and 7:49 am on 3 December 2018 concerned the proposed sale of ice to Ms Pante and Mr Costello. During the first call he and Ms Pante agreed to meet alone so that she could again perform oral sex on him in exchange for ice. During the final call, Ms Pante told the applicant that Mr Costello wanted ice and had money to pay for it. It was the applicant’s evidence that this is what prompted him to go to the Showgrounds on 3 December 2018.
The applicant said that he arrived at the tent at the Showgrounds with Ms Menzies at about 8:00 am. Mr Costello asked him for ice. Mr Costello had no money but said that Ms Pante did and would arrive soon. The applicant said that he refused to give Mr Costello the ice without first receiving payment out of ‘tough love’.
The applicant said that Ms Pante arrived at the campground with Mr Fry. The applicant left the tent and went over to their car. She introduced Mr Fry to the applicant as her ‘good friend Jake’. The applicant said that Mr Fry told him about a drug debt Mr Fry owed Jeremy Bingham, whom the applicant knew. Mr Fry said that Mr Bingham was threatening his girlfriend. The applicant said that he tried to call Mr Bingham on Facebook, but that he did not answer, so he left Mr Bingham an audio message. The applicant said that Mr Fry then said to him that Mr Heinz had told Mr Fry that the applicant had a few guns and that he might let Mr Fry use one for the right price.
The applicant said he did not want to talk about this outside, so they should go into the tent. He said that Mr Fry and Ms Pante then went into the tent. The applicant retrieved the longer .22 rifle from his car and followed them into the tent. He placed the rifle on the end of the bed in the tent. The applicant said that the gun was loaded at the time. The applicant said that he then asked Mr Fry why he wanted the gun, and Mr Fry said that it was because he wanted to rob another drug dealer, Harry Dickinson (or a similar surname), who was a friend of Mr Costello. The applicant said that he did not agree to provide Mr Fry with the gun, but did agree to again try to speak to Mr Bingham on his behalf.
The applicant said that Mr Costello asked Ms Pante how much money she had for ice. She told him that she had spent all of her money the night before. The applicant then refused Mr Costello’s request for ice on ‘tick’ (meaning on credit). Mr Fry and Ms Pante left the tent. Ms Pante returned and requested the applicant to provide ice on ‘tick’. The applicant again refused.
At this stage, on the applicant’s account, Mr Costello was standing by the bottom right hand corner of the bed, Ms Menzies was sitting on the bottom left hand corner of the bed, Ms Pante was standing halfway between the bed and the door and the applicant was standing. Mr Costello was not on the phone. Ms Pante said to the applicant ‘can you just give him [Mr Costello] some [ice], and I’ll fix you up later’. The applicant refused, stating ‘Maddie, you can’t, I need money, you can’t do that’. Mr Costello then asked Ms Pante ‘did you just offer to suck him off?’. Ms Pante said ‘So what? It’s too bad he’s not a faggot because then you could too’. The applicant said that Mr Costello immediately leant forward, grabbed the gun and shot Ms Pante.
The applicant, Mr Costello and Ms Menzies exited the tent, got into the car and left the Showgrounds. It was the applicant’s evidence that Mr Costello received the call from Centrelink about 10 to 15 minutes after Ms Pante was shot while in the backseat of the car.
The applicant denied that it was his idea to purchase another padlock for the tent. Rather it was Mr Costello’s and Mr Costello retained the key to the padlock after it was affixed.
The applicant said that after Mr Costello and Ms Menzies departed Norlane together in the Hyundai i30, he drove to the house of Alicia Gibbs in the Suzuki Swift. Ms Gibbs contacted her friend, Billy Guest, who in turn bought the firearm used to shoot Ms Pante for 250 dollars. While at the house, Ms Gibbs’ boyfriend expressed an interest in purchasing the Suzuki Swift. The applicant sold it to him for 300 dollars. He denied having anything to do with burning it.
The applicant also denied having any involvement in setting the tent on fire at the Showgrounds. He said that the first he heard of the fire was through a radio report.
The applicant said that his text messages to Mr Drew regarding his surviving ‘the jacks’ referred to an incident during the early hours of 3 December 2018 where the applicant had run a red light and the police had ‘high beamed’ him. He also said that his reference to ‘doing 10 years min’ related to his being an accessory to the killing of Ms Pante, along with his other illicit activities involving drugs, firearms and stolen cars.
The applicant denied that the self-deleting Facebook messages he sent to Ms Purdie telling her to forget about the .22 and Suzuki Swift referred to the same gun used to shoot Ms Pante.
The applicant said that his decision to flee interstate was prompted by his receipt of a an emoji ‘shocked face’ reaction from Ms Pante’s account to a message he had earlier sent her after he had been notified of her death. He thought that it meant that ‘they were coming after me’.

Ground 1 – the agreed fact concerning the Centrelink call

In identifying the applicant as the shooter, Mr Costello said that it could not have been him — as alleged by the applicant — because he was ‘busy on the phone’ to Centrelink. His evidence was elicited as follows.
… You’re sitting on that corner of the bed, you’re on the phone? --- Yep.
And what happens? --- So I was on the phone to Centrelink and um Maddie and Nick came in and they were arguing. And, um, I wanted them to quieten down, ‘cause I wasn’t actually facing them. I was sorta faced out to the side of the tent. And, um, I turned around and telled [sic] them to quieten down and they quietened down a little bit and then start slowly raising their voices back up. This happened about three or 4 times of me turning around and telling them to be quiet.
Three or 4 times over what sort of period of time? ---- Over, say, a minute or two.
And could you hear what they were arguing about? – I could hear them but I wasn’t paying any attention to what they were saying.
And why is that? --- Well, I was on the phone to Centrelink.
And how angry or aggressive did the argument seem to be – were you able to get any impression of that? --- Oh, I knew that they were arguing. I didn’t really think it was an angry – I couldn’t sense any anger like that. It was an argument but I didn’t think it was going to escalate to what it did.
And were either of them moving in any way? --- Oh, Maddie was sort of moving around, not erratically but sorta a little bit erratically I s’pose, like, stomping around and moving her arm, but ---
And what about Nick Cross, was he moving? – Well, I couldn’t clearly actually see Nick fully until I turned – until I turned around a little bit, so.
So you’ve heard the argument; it’s gotten louder and quietened down again a few times? --- Yep.
Then what’s happened? --- And then I went to say it again, ‘can ya be quiet’ and um, Nick’s just pulled a gun out of his pocket or his waistband and shot Maddie.
After explaining what he had seen, the evidence continued as follows.
What did Nick Cross do? --- Um, he was just freaking out as much as I was. He come over to me and said how sorry he was and yeah, I was then – then I was just pacing up and down the tent for probably a minute, just freaking out and not knowing what to do. Still on the phone to Centrelink, and um, at this point the phone wasn’t to my ear. I was sorta just walking around, like, I dunno what to do.
What was happening with that phone call? --- Um, well I presume the bloke was still talking and I’d sorta put my phone up to my ear and just say, ‘Yep, yep, no worries’, and then sorta – yeah, it was just sort of a bit of a – we were just – we didn’t really – nothing significant was happening, we were just walking around and freaking out, pretty much.
Did you see where Nick Cross got that firearm from – where it came from? --- Um, somewhere from his person, so either his pocket or his waistband.
So then what happened? --- So from there we, um – from there we decided to leave. Nick said – well Nick said, ‘Let’s go, and I’m like, ‘I’m not going with ya’.[9] And he said, ‘Well, what else are you gonna do?’, and he didn’t directly threaten me but I felt very, you know, I was in shock and I was intimidated by the fact that he’d just shot Maddie dead. So I go, ‘Yeah, well, I s’pose I’m gonna come with ya, I’m not gonna sit here in the tent with a dead body.
[9]Mr Costello later agreed in cross-examination that he said ‘Mate, I can’t fucking get in the car’.
In cross-examination Mr Costello agreed that there was no silencer attached to the gun. He accepted that the shot was louder than that from a normal gun because the gun used was shortened. Parts of his interview with police were put to him in which he said that the gun did not make much of a noise because ‘the bloke on the phone to me didn’t say anything about it’. He said that his ‘ears were ringing after it’ but he thought that was ‘just the whole scenario’. Mr Costello had told police that ‘it wasn’t that loud’.
Aside from the evidence of Mr Costello concerning the Centrelink call, the following matters were before the judge as agreed facts:
•Phone records show that on [sic] 8.43 am on the 3^rd December 2018 Brodi Costello received a call from Centrelink. The call lasted 299 seconds.
•On the 6^th December 2018 Police made enquiries with the Department of Human Services in relation to the Centrelink call referred to [above]. The officer reviewed Costello’s record and advised that he was on call back duty on the morning of the 3^rd December 2018 and did speak to Costello. He stated that he did not hear anything during that call or any other call that day that he would consider unusual. The officer did not escalate anything of note to his Manager. He was not advised of the circumstances of the police investigation or what he may have heard.
The judge concluded that the fact that Centrelink officer did not report anything unusual about the call was not alone sufficient to conclude that there was no gunshot during it ‘given the absence of evidence on the quality of the phone line and the degree of attention paid by the officer during the call’.[10] The judge said:
I also note that there are many unexplored variables which may have affected the Centrelink officer’s ability to hear the gunshot, such as the quality of the phone line, the level of attention paid by the officer, and what other tasks the officer was engaging in at the time (such as recording information on a computer). Even if the officer did hear something unusual, this might have been forgotten when, three days (and many calls) later, they were asked to recall ‘anything unusual’ about the specific call without context. In my view, the Centrelink officer’s evidence does not advance the matter one way or another.[11]

Applicant’s contentions

[10]Reasons, [413].

[11]Reasons, [509].

The applicant contends that to conclude that the evidence that the Centrelink officer did not report anything unusual about the phone call with Mr Costello did not mean that there was no gunshot during it, the judge reasoned contrary to the agreed fact. Leave was not given to contradict or qualify the agreed fact.[12] It is argued that the judge impermissibly qualified the agreed fact by speculating about ‘unexplored variables’,[13] such as the quality of the phone line, the level of attention paid by the officer and other tasks that the officer might have been engaged in. None of those matters had an evidentiary basis, nor were they put to Mr Costello. The judge also considered only whether the gunshot was heard by the officer. If the totality of the transaction of events described by Mr Costello had occurred during the phone call, the officer would have heard something ‘unusual’, such as Mr Costello’s comment to the applicant regarding Mr Costello’s refusal to ‘stay here with a dead body’. Further, the judge gave the applicant no notice of her intention to look behind the agreed fact.

Respondent’s contentions

[12]As required by s 191(2)(b) of the Evidence Act 2008.

[13]Reasons, [509].

The respondent contends that the judge neither qualified the agreed facts relating to the Centrelink call nor made findings in contradiction to them. As the finder of fact the judge was entitled to give little weight to the agreed fact that the Centrelink officer heard nothing ‘unusual’. Further, that evidence was not incompatible with Mr Costello’s account of the circumstances of the shooting. There was nothing inherent in the evidence which meant that the officer must have heard a gunshot. Mr Costello said that the shot ‘wasn’t really that loud’ and that the officer did not react to the sound of it. Moreover, there were a number of plausible possibilities which might explain why the Centrelink officer did not hear or recall hearing a gunshot, such as the quality of the line or the Centrelink officer’s level of attention. The same holds true for the other ‘unusual’ events said to form part of the transaction of events, including the discussion about a dead body. Mr Costello had given evidence that the phone was not always at his ear during the Centrelink call. It did not involve a traversal of the agreed facts to consider these possibilities, and the judge was not required to give the parties notice about how she proposed to deal with the Centrelink officer’s evidence in circumstances where the parties had already made detailed submissions on the use to be made of this evidence.

Analysis

The judge correctly identified that the issue of whether the shooting could have occurred during the Centrelink call went ‘directly to Mr Costello’s credibility on a critical matter’[14] and whether she could accept the direct evidence of Mr Costello that the applicant shot Ms Pante.
[14]Reasons, [491].
Pursuant to s 191(1) of the Evidence Act, an agreed fact is a fact that the parties to a proceeding have agreed is not, for the purposes of the proceeding, to be disputed.
In this case the agreed facts were as to the length of the Centrelink call and that the Centrelink officer did not hear anything ‘unusual’ during it. Significantly, it was not an agreed fact that there was nothing ‘unusual’ to hear.
The judge was required to consider whether the absence of the Centrelink officer hearing anything ‘unusual’ was a matter that attracted any weight in deciding whether she accepted the evidence of Mr Costello that the applicant shot Ms Pante while he was on the call to the officer. The judge was to do so considering the whole of the evidence and applying her common sense and life experience.
In this regard, the applicant’s heavy reliance on Henshaw v The Queen[15] is misplaced.
[15](2021) 294 A Crim R 103; [2021] VSCA 356 (Priest, Kyrou and Whelan JJA) (‘Henshaw’).

The applicant in Henshaw had been convicted in a judge alone trial of the digital anal rape of his son said to have occurred during a physical fight between them. The fight was witnessed by the complainant’s mother / applicant’s wife, KAD. Some five days after the incident KAD rang the applicant’s psychologist, Pamela Copperwaite. Ms Copperwaite later made a police statement compiled from contemporaneous notes she had made. That statement recorded utterances made by KAD during the phone call that the applicant had not raped his son, that his son had grabbed the applicant first and had him in a headlock, that to get away the applicant had grabbed the cheek of his son’s bottom and that any ‘rape’ that occurred was an accident. Those portions of Ms Copperwaite’s statement were read into evidence by agreement. KAD gave evidence denying she had made the statements to Ms Copperwaite.
The trial judge did not accept that KAD had made the statements attributed to her by Ms Copperwaite. The judge noted that although her evidence was read as an agreed fact, that only meant that there was ‘no dispute that Ms Copperwaite ‘process recorded’ the phone call onto a notepad and the statement apparently records what those notes showed’.[16] The judge said that it was a matter for her to be satisfied if what Ms Copperwaite noted was in fact said. The trial judge was not so satisfied and articulated a number of reasons why, including that she could not assess Ms Copperwaite’s demeanour, there was no evidence that a typed version of the original handwritten notes on which the statement was based were checked for accuracy and that KAD suggested in her evidence that Ms Copperwaite was making things up.[17]
[16]Henshaw, 120–1 [42] (Priest and Kyrou JJA), 140 [132] (Whelan JA agreeing).
[17]Henshaw, 122–3 [48] (Priest and Kyrou JJA), 140 [132] (Whelan JA agreeing).
This Court in Henshaw held that it was not open to the judge to reject the evidence contained in Ms Copperwaite’s statement, her reasons for doing so were flawed and procedural fairness demanded that if she had been minded to do so, she was required to put the parties on notice.[18] Priest and Kyrou JJA said:
… at no stage in the trial had either the prosecutor or the applicant’s counsel indicated that the sum total of their agreement simply was that it was not disputed that Ms Copperwaite had “process recorded” her telephone call with KAD onto a notepad, and that her statement records what her notes showed. On the contrary, in our view it is clear from the context in which Ms Copperwaite’s evidence was introduced that counsel at each end of the Bar table were proceeding on the basis that Ms Copperwaite had accurately recorded what KAD had said. Quite clearly, the agreement between counsel to have part of Ms Copperwaite’s statement read indicated that there was not dispute as to the accuracy of the facts it recorded. And, self-evidently, had the prosecutor sought to challenge any of Ms Copperwaite’s evidence, he could have insisted that she be called (and, if necessary, cross-examined).[19]
[18]Henshaw, 124 [49]-[50] (Priest and Kyrou JJA), 140 [132] (Whelan JA agreeing).
[19]Henshaw, 124 [49].
In this case the judge’s conclusion that the agreed fact that the Centrelink officer did not hear anything ‘unusual’ during the call with Mr Costello ‘did not advance the matter one way or another’ does not amount to a qualification or contradiction of it. It is not the product of procedural unfairness.
As already noted, the agreed fact was only that the officer did not hear anything ‘unusual’ and not that there was nothing unusual to hear. Unlike in Henshaw, the judge did not use these ‘unexplored variables’ to traverse the agreed fact. The applicant’s contention conflates the absence of evidence with evidence of absence. As a matter of common experience, what one party to a telephone call hears in the background of the other party is highly variable. It is influenced by the quality of the phone line and the particular circumstances in which each party is listening. Further, what any particular person considers to be ‘unusual’ is highly subjective. While it might be supposed that most people would consider the sound of a gunshot to be so, that supposition assumes that most people would be able to recognise the sound of a gunshot over the phone and in a vacuum of other information as to the fact that the sound emanated from the discharge of a firearm.
In assessing the weight to be given to the agreed fact, the judge was entitled to consider Mr Costello’s evidence that the shot ‘wasn’t really that loud’ and that aside from Mr Hollonds and Mr Fry, who were immediately outside the tent, no one else at the Showgrounds heard it.[20] In particular, Mr and Ms Callison were present three caravan sites away from the tent.[21] The judge was also entitled to consider Mr Costello’s evidence that the Centrelink officer did not react to the sound of the gunshot and that he told police that the recording of the call should be obtained because the gunshot would be heard.[22]
[20]Reasons, [510].
[21]They did not leave the Showgrounds that morning until about 9:10 or 9:15 am.
[22]Reasons, [508].
Finally, the judge’s primary focus on the gunshot as the ‘unusual’ aspect of the events that unfolded during the course of the Centrelink phone call did not bespeak error. It reflected the emphasis placed on the gunshot in the course of the trial. In any event, the fact that there were other sounds in the vicinity, and that Mr Costello’s evidence was that he said various words that might have be described as ‘unusual’ — in particular, not wanting to ‘sit here with a dead body’ — does not add anything to the analysis.
As for the former (the background sounds of people arguing and so forth), such sounds (a) may not necessarily be considered unusual; and (b) those sounds might not have been heard by the operator, for the reasons already given. As for the latter (Mr Costello’s reference to a dead body), even assuming that the Centrelink operator would necessarily have regarded such a statement as unusual, the operator simply may not have heard those words. That is both for the reasons given above, in relation to the gunshot, and also because Mr Costello said that he did not always have the telephone to his ear, and that after the shooting that he had put the phone down for a minute or so, in which case it was possible that the telephone would not have picked up everything that he said.
It follows that proposed ground 1 cannot succeed.

Ground 2 – events during the Centrelink call

Mr Costello was cross-examined as to a series of timings of the sequence of events that occurred during the Centrelink call. He accepted the following propositions as ‘fair’:
(1)He was on the Centrelink call for five minutes before the applicant and Ms Pante came back into the tent.
(2)The applicant and Ms Pante spoke for a few minutes before he heard an argument.
(3)The argument went on for a couple of minutes.
(4)After the shot he remained on the call for a minute or two before he left the tent.
(5)The call ended a couple of minutes after he entered the car.
In addition to these events, both Mr Hollonds and Mr Fry gave evidence that during the time she was arguing with the applicant, Ms Pante briefly returned to Mr Hollonds’ car. Mr Costello did not give evidence of that occurrence.
In re-examination Mr Costello was asked what he was ‘working off’ when he gave the estimates of the timings of the events that had occurred. He replied:
Um, just guessing, really. I wasn’t timing anything, so I don’t really know.
The judge concluded that all of the events said to have occurred during the Centrelink call could have happened in the space of four minutes and 59 seconds, the agreed length of the call.[23] The judge said:
When one consciously and purposefully takes note of an interval of five minutes, it is clear that it is not an insignificant period of time. None of the individual events described by Mr Costello during the call are necessarily long events that must have taken any more than 30 seconds to one minute. Even if Ms Pante briefly returned to Mr Hollonds’ car during her argument with Mr Cross, that itself could have been completed in under a minute given the proximity of the car to the tent (on Mr Hollonds’ account the nose of the car was level with the tent when parked at its second position) and the brevity of her time in the car (on both Mr Hollonds’ account and Mr Fry’s account, she left the car almost immediately).[24]
[23]Reasons, [491].
[24]Reasons, [494].
Specifically, the judge rejected the defence argument that the appropriate way to analyse Mr Costello’s evidence was to ‘aggregate his ‘estimates’ of the duration of individual events and compare that aggregate to the known duration of the call’.[25] The judge found it ‘abundantly clear’[26] that Mr Costello used the language of ‘a couple of minutes’ and the like to ‘loosely convey the notion of a short period of time’.[27]
[25]Reasons, [495].
[26]Ibid.
[27]Ibid.
Further, the judge found that Mr Costello was not in a position to provide precise time estimates. Before the shooting he was not paying attention. After it he was in distress.[28]

Applicant’s contentions

[28]Reasons, [496].

The applicant contends that there is an inherent implausibility in all of the events described by Mr Costello — as well as Ms Pante going from the tent to Mr Hollonds’ car and back — occurring within 299 seconds. It is argued that the judge erred by rejecting or reinterpreting Mr Costello’s time estimates and substituting her own.

Respondent’s contentions

The respondent contends that Mr Costello’s evidence of the timing of events was acknowledged by him to be a rough estimation. The judge was correct to reject the applicant’s submission that the appropriate way to analyse his evidence was to aggregate his ‘estimates’. In any case, each event described by Costello as taking place during the Centrelink call was not something which would have necessarily taken very long.

Analysis

Ground 2 may be addressed shortly. The time estimates given by Mr Costello of the events that took place during the phone call were described by him as ‘rough’ estimates. As a matter of common experience the accuracy of estimated times is fraught and, idiomatically, Anglophones use phrases such as ‘a couple of minutes’, ‘five minutes’ or ‘a minute or two’ to mean nothing more than a short period. It was not improper for the judge to accept the rough estimates as being exactly that and, as such, reject the defence argument that such estimates should be aggregated and compared against the known length of the phone call to conclude that it was impossible for the shooting to have occurred during it. Moreover, the judge did not fall into error by considering that it was plausible that each of the individual events described by Mr Costello as having occurred during the Centrelink call could have taken place within a period of 299 seconds. There was nothing inherent in any of these individual events as described that would necessarily render them, collectively, having a duration of greater than 299 seconds.
It follows that proposed ground 2 cannot succeed.

Ground 3 – the timing of the shooting

The Centrelink call commenced at 8:43 am. Accordingly, Mr Costello’s evidence meant that the shooting took place between 8:43 am and 8:48 am. It was the applicant’s case that the shooting occurred before the start of the call at 8:43 am. He said Mr Costello was in the backseat of the Suzuki Swift at the time he received the Centrelink call. The applicant submitted to the judge that there were 19 minutes of unaccounted time pre-8:43 am in which the shooting could have occurred.
The evidence as to Mr Costello’s movements and activities on the morning of 3 December 2018 was as follows:
•He woke up at 7:30 am, being the time for which he had set an alarm.
•He checked his phone. There was a missed call from Mr Hollonds. He sent a text message - ‘sup’[29] – to him at 7:31 am.
[29]Meaning ‘what’s up’.
•At 7:42 am ‘Millzy’[30] sent a text message to him — ‘feels like everything’s falling apart’.
[30]Mr Costello gave evidence that he could not remember the name of ‘Millzy’ and had no recollection of the exchange of text messages with him on 3 December 2018. T480.14-20.
•At 7:44 am he sent a text message to ‘Millzy’ – ‘I feel dat’.
•At 7:45 am he spoke with Ms Pante via Facebook Messenger to request that she obtain ice for him. That call lasted 43 seconds.
•At 7:48 am he sent Ms Pante a text message – ‘can you bring me some ice please’.
•At 7:51 am ‘Millzy’ sent a text message to him – ‘its shit shit shit’.
•At 8:00 am he sent a text message to ‘Millzy’ – ‘you’ll figure it all out mills. What’s on today?’.
•At 8:03 am ‘Millzy’ sent him a text message ‘Yeahh, im working for a few hours and then Christmas shopping, what about you?’.
•About ten minutes after he had spoken with Ms Pante, the applicant arrived at the tent. Mr Costello let him in and spoke to him for about five minutes.
•He went to the shower about 10 metres away from the tent and showered for about 5 minutes. (Mr Callison gave evidence that he spoke to a man from Colac in the shower block sometime between 8:00 am and 8:15 am.)
•He walked back to the tent and saw the applicant, Ms Pante and Mr Fry speaking near Mr Hollonds’ car. He entered the tent. A couple of minutes later those three people also entered the tent.
•At 8:20 am he sent ‘Millzy’ a text message – ‘Oh very nice. Well I stayed at the caravan park last night so I’m just waiting for Eli to come pack it up with me then I’m playing it by ear’. He sent a second text message to ‘Millzy at 8:20 am ‘as per’.
•At 8:24 am ‘Millzy’ sent him a text message ‘Aw bby☹ ill message you when I’m finished work and we can get some food or coffee and chill if u want? Also at 8:24 am he replied – ‘yeah gimme a msg’.
•At 8:27 am ‘Millzy’ sent him a text message – ‘I will’.
•The applicant, Ms Pante and Mr Fry left the tent five minutes after they had entered it. The applicant and Ms Pante re-entered the tent five minutes after that. By that time he was on the Centrelink call. The applicant and Ms Pante spoke for a few minutes before they started to argue. They argued for a couple of minutes before Ms Pante was shot.
The judge found that Mr Costello’s account of his movements prior to the Centrelink call was ‘plausible and consistent’ with the shooting occurring between 8:43 am and 8:48 am.[31] The ‘Millzy’ messages were ‘relaxed and supportive’, suggesting that the shooting had not yet occurred.[32] The judge continued:
However, it must be acknowledged that the evidence does not illuminate what Mr Costello was doing between sending the last message to Millzy at 8.24am and receiving the Centrelink call at 8.43am. This is not to say that Mr Costello “cannot account” for his movements during this time, but simply that the evidence (other than Mr Costello’s evidence) does not exclude the possibility of the shooting occurring before the Centrelink call. It might also be argued that Mr Costello’s inability to recall any details of the other conversations occurring inside the tent sits uncomfortably with this 19 minutes of otherwise “idle” time.
In my view, these issues do not impugn Mr Costello’s credibility. Importantly, they do not contradict Mr Costello’s version of events which, for the many reasons outlined elsewhere, I readily accept. It is not difficult to imagine things that Mr Costello might have been doing during those 19 minutes that did not involve engaging with other conversations occurring inside the tent. It is likely that, by 8.30am, Mr Costello was expecting to receive a call from Centrelink at any moment and that his focus was on ensuring that he did not miss that call. Mr Costello repeatedly referenced the importance of the call in his evidence, it being the last step for him to secure Newstart Allowance. He had no accommodation or money at the time and was relying on friends for help. It is perfectly plausible that Mr Costello was focused on receiving that call, and did not meaningfully engage with other persons inside the tent, in the minutes before 8.43am.
I do not consider that Mr Costello’s evidence, and in particular his account of Ms Pante’s shooting, is in any way undermined or weakened by the absence of a minute by minute account of events prior to and after the shooting. To the contrary, Mr Costello had no reason to be focusing on what was happening around him prior to the shooting as he was solely focused on finalising his application for Newstart Allowance. Equally, in the chaotic aftermath following Ms Pante’s shooting, Mr Costello would not have been concentrating on timelines.[33]

Applicant’s contentions

[31]Reasons, [499].

[32]Ibid.

[33]Reasons, [500]-[502], emphasis in original.

The applicant contends that the judge’s finding that there was nothing in the evidence to suggest that the shooting must have (or even probably) occurred outside the time of the Centrelink call was contrary to the evidence. The evidence of Mr Costello’s movements on the morning of 3 December 2018 left 19 minutes of unaccounted time between 8:24 am, when he replied to a text from Millzy, and 8:43 am, when the Centrelink call began. The applicant contends that, having recognised the 19 minute unexplained time gap in Mr Costello’s evidence, the judge impermissibly speculated as to his state of mind, level of attention, level of engagement with others and activities to provide an explanation for it.

Respondent’s contentions

The respondent contends that it was open to the judge to accept Mr Costello’s account as credible and consistent with the independent evidence. The fact that the Centrelink call was important to Mr Costello and something he was preparing himself to receive meant that it was perfectly plausible that he could not provide a minute by minute account of events leading up to the shooting.

Analysis

As is clear from the Reasons, the judge found that the evidence of Mr Costello’s movements and activities left a 19 minute period between 8:24 am and 8:43 am in which there was no evidence independent of him to shed light on what occurred in that time. The judge found that, the evidence of Mr Costello aside, it was possible that the shooting occurred in that time. That finding did not compel the judge to reject Mr Costello’s evidence that it did not. On the whole of the evidence it was open to the judge to reject the applicant’s account that Mr Costello shot Ms Pante before the Centrelink call and accept Mr Costello’s account beyond reasonable doubt that the applicant shot Ms Pante during it.
Whether that 19 minutes was best characterised as ‘idle’ time or ‘unaccounted for’ by Mr Costello is beside the point. That there is a period of time in which an event could have occurred says little about whether it did or not. It was not adverse to Mr Costello’s credit that he could not give an exact account of what was occurring at every stage between his waking and the Centrelink call or exactly when it was occurring. Rather, his inability to do so accords with common human experience. Further, the judge’s reasoning that Mr Costello might well have been focused on the anticipated Centrelink call was not a matter of speculation but founded in the evidence.
It follows that proposed ground 3 cannot succeed.

Ground 4 – the evidence of Diana Callison

Diana Callison, who stayed at the Showgrounds with her husband John Callison on 2 and 3 December 2018, gave evidence that she saw the same man she had spoken to at the Showgrounds on 2 December 2018 coming from the tent, with a pile of neatly folded clothing, during the afternoon of 3 December 2018. It was agreed that the man she had spoken to on 2 December 2018 was Mr Costello.

Ms Callison’s evidence was in conflict with that of Mr Costello’s who said that after he left in the stolen Hyundai with Ms Menzies, leaving the applicant in Norlane, he travelled by train to his mother’s house in Colac during the afternoon of 3 December 2018.
The prosecution cross-examined Ms Callison pursuant to s 38 of the Evidence Act as to her identification of the man seen on 3 December 2018 as ‘the same man’.
It is necessary to set out the relevant evidence in some detail.
In her evidence at trial, Ms Callison said that on 2 December 2018 she noticed two gentlemen setting up a large ‘circus’ tent. She made a comment to one ‘young man’ as she passed that it looked like hard work. He was about 20 years old with dark shoulder length hair. The other man was of a thin build with spikey looking blonde hair. Ms Callison said that she saw ‘the young man with the dark hair’ walking from the tent to the male amenities block with ‘a lot of very neatly folded up clothes in his arms’ on ‘Sunday afternoon’ (emphasis added). (Sunday was 2 December 2018.) She said that she found it strange because men usually throw a towel over their shoulder and carry a bag.
In cross-examination by the applicant’s counsel, Ms Callison said that after she had first spoken with police on 4 December 2018 at the Showgrounds, she compiled some typewritten notes. She provided them to police on 24 January 2019. Some of the notes were made while she was still in Geelong. Ms Callison had tried to marry up various receipts and phone records to create accurate timings.
Ms Callison’s notes were tendered in evidence. Relevantly they record:
2.12.18 SUNDAY
…
We set up the caravan and then went shopping.
15.45 hours     Bank statements showing Coles Geelong West (Ref: 1)
I went to the amenities block noticing an amazing “Circus Tent” that was cream in colour and very large was being erected by 2 men. A young man – possibly in his early to late 20s, slim build with shoulder length dark hair was hammering tent pegs in and I called out to him “That looks like hard work” (or words to that effect) He looked up and replied “Yeah”.
There was another young man approximately the same age with blonde spiky type hair assisting with the tent but he did not speak.
There was also a small silver/grey car at the site – possibly a Mazda 3 Hatchback.
…
3.12.18 MONDAY
08.30 hours     (approximately) John went to the amenities block where he spoke to the young man (who had been erecting the circus tent) who had arrived for a shower dressed only in his underwear. John said he could go ahead of him as he would have a shave first. The young man had come out of the circus tent. The young man said he was from Colac Victoria and was not working at the moment – they had a laugh about the tent calling it a circus tent and the how large it is (sic).
09.30 hours     Met with friends from SA
…
17.15 hours     (approximately) Arrived back at the GSG …
On arrival back at the GSG noticed we had no power. John went down to the power box to find the switch had been turned off.
I went to the amenities block and a young man was heading towards the men’s amenities carrying a lot of neatly folded items but I did not speak to him at this time because he was almost at the amenities block door. (I thought this was strange as men usually only take their bag and a towel with them)
…
04.12.18 TUESDAY
03.15 hours     (approximately) John got up to go to the amenities block and noticed that we had no power in the van again so he went outside to check the box only to see the police and fire brigade by the circus tent – it had been burnt to the ground ! John was advised that there was a person deceased.
03.25 hours     John came back to our van and told me the circus tent was burned down and someone had died.
We could not believe this as we heard absolutely nothing during the night.
…
We were interviewed by the police – John went with a male Detective to his car and Brigitte Reiche interviewed me in our caravan. We were informed that it was a female that was deceased this shocked us as we had only seen the 2 young men at the tent although John thought he had heard a female voice on Sunday afternoon. We were also advised that the Homicide Squad had been called in and that it would be a full days investigation at the site. We were also advised that should the investigation turn into a Homicide Investigation that we may get a call from the Homicide Squad as it appeared we were the only people to see and speak with the 2 men who were erecting the tent. I informed Brigitte that we would document everything we could remember in writing and she said that would be a good idea as it could take a long time before it gets to court if necessary.
…
Ms Callison was taken through the notes. When the entry for 17.15 on Monday 3 December 2018 was reached, it was put to her that that was when she saw the same man who had been banging the pegs the previous day. Ms Callison said that that was correct and she got mixed up whether it was the Sunday or Monday afternoon she saw the young man with the clothes. She said that she had made the same mistake in her police statement.
The details of that observation in the police statement were then put to and accepted as accurate by Ms Callison.
We crossed paths, but he was slightly ahead of me. We did not converse. There was no other person with him. When I came out of the toilet, I didn’t see anyone else, and just walked back to my caravan.
She accepted the proposition that she told police that it was the same male.
In re-examination Ms Callison agreed that when she spoke to the man on 2 December 2018 she briefly paused but did not stop. She had no interaction with either man on her way back from the amenities block. Ms Callison explained that the notes were originally handwritten in the caravan between her and her husband. Ms Callison accepted that her notes did not say that the man with folded clothes she had seen on 3 December 2018 was the same man with whom she had conversed on 2 December but said ‘I do believe it was the same person’. When asked from what angle she had seen his face, Ms Callison replied that it was three years ago but from memory he came ‘from the tent’ and glanced but then they both carried on.
The prosecutor was then given leave to cross-examine Ms Callison. When it was suggested that she was mistaken that the young man with the clothes was the same man she had seen hammering in the pegs, Ms Callison said that she felt ‘very confident’ that it was the same person. When it was suggested that in neither her police statement nor in her notes did she say that the young man with the clothes came from the tent, Ms Callison said ‘well I know he did’.
In her Reasons the judge found there to be several reasons why Ms Callison could be mistaken about seeing the same man on 2 and 3 December 2018. The judge considered Ms Callison to be a witness of truth and that the purported sighting of ‘the same man’ occurred on the Monday afternoon (meaning the reference to Sunday afternoon in her police statement was an error).
Nonetheless the judge was not persuaded that it was the same man.[34] The judge noted that Ms Callison’s interaction with the man agreed to be Mr Costello on 2 December was ‘fleeting’ and that the purported 3 December sighting of the same man ‘involved no interaction at all and in circumstances where he was ahead of her’.[35] Next, ‘on both occasions, Ms Callison’s attention was captured by the activities the man was undertaking, as opposed to distinguishing features of his physical appearance’.[36] In this respect the judge found it to be ‘perhaps telling that Ms Callison never commented on the man’s height, despite Mr Costello being 6 foot 7 inches tall’.[37] Further, the judge noted that in the 24 hours separating the two sightings, Ms Callison was likely to have interacted with many other people and seen many new faces, so as to increase the possibility of being mistaken about the identity of a person momentarily observed.[38]
[34]Reasons, [468].
[35]Reasons, [469].
[36]Reasons, [470].
[37]Reasons, [470].
[38]Reasons, [471].
The judge noted the thoroughness and diligence in Ms Callison’s notetaking but found one aspect of the typed notes that cast additional doubt on the reliability of her second sighting. That sighting was recorded as occurring after 5:15 pm. Ms Callison in evidence agreed that it could have been anywhere between 5:15 pm and 7:30 pm during a power outage. Mr Callison said in evidence that he investigated the power outage at about 9:00 pm or 9:30 pm. Although he was less confident as to the time than Ms Callison, the judge preferred his evidence as to the time because he was the one who investigated the power issue. The judge acknowledged that while Ms Callison’s mistake about the time of the sighting did not undermine the fact of it, that mistake cast doubt on the precision of her overall recollection and created uncertainty about the level of natural light at the time of the second sighting.[39]
[39]Reasons, [473]-[474].
The judge concluded that these issues:
… collectively raise the distinct possibility that the man Ms Callison saw on the second occasion was not Mr Costello. I note that Ms Callison’s evidence about the man “coming from the tent” on the second occasion was disclosed for the first time at trial, more than three years after the events.[40]

Applicant’s contentions

[40]Reasons, [475].

The applicant contends that the judge erred in her approach to the evidence of Ms Callison.
First, it was impermissible to characterise the first interaction as fleeting and momentary because it failed to have regard to the totality of Ms Callison’s evidence of that interaction, one which produced an accurate description of Mr Costello to police on 4 December 2018. Secondly, the proposition that Ms Callison was focused on the activities of the males during the sightings rather than their appearance was never put to her. Her police statement was predicated on the fact that the man in each sighting was the same. It was not necessary for her to give a further description of the man in the second. Relatedly, Mr Costello was not standing upright when he was first seen. Thirdly, Ms Callison’s evidence was based on recognition not identification. That recognition was connected to the tent. It was therefore immaterial that she had seen new faces between the two sightings and, in any case, it was not put to Ms Callison that these new faces could have affected the accuracy of her recognition. Fourthly, it was impermissible to use the uncertain evidence of Mr Callison as to the timing of the power outage to cast doubt on the accuracy of the second sighting (including by way of speculation as to the impact of natural light on the quality of Ms Callison’s sighting). The prosecutor did not challenge Ms Callison as to the time of day the sighting occurred. Fifthly, it was not open to the judge to criticise Ms Callison to the effect that her evidence that during the second sighting the man came from the tent was first disclosed at the trial. Her police statement ‘draws the connection’ between the man and the tent and she had never been previously cross-examined.

Respondent’s contentions

The respondent contends that it was open to the judge to find Ms Callison’s evidence that she observed the same man during the first and second sightings was unreliable.
Her observations on both occasions were fleeting and momentary. The cross-examination of Ms Callison by the prosecutor was a global challenge, impugning her account of who she saw and when she saw him. It was understood as such by the applicant’s counsel. It was open to the trial judge to find that Ms Callison’s attention was focused on the activities rather than the physical features of the two young men. She did not offer a description of the second ‘young man’ at all. There were discrepancies in Ms Callison’s evidence that cast doubt over her reliability, including that she had never previously said that during the second sighting the man came from the tent. There was a discrepancy within her evidence at trial on that point. She first said that the young man was ‘walking from the tent’. In re-examination she said that he had ‘come through from the tent’. Within Ms Callison’s notes there were differences in how the ‘young men’ were described. She associated the young man from 2 December 2018 with the young man encountered by her husband in the amenities block on the morning of 3 December 2018 but not with the young man she saw that afternoon. That the evidence was ‘recognition’ evidence rather than fresh identification evidence is of little moment given the lack of familiarity between Ms Callison and the young man she saw on 2 December 2018.

Analysis

The matters articulated by the judge as to why she found Ms Callison’s evidence to be unreliable were open. The characterisation of her interaction with Mr Costello on 2 December 2018 as fleeting was accurate. Ms Callison accepted that she ‘didn’t stop and talk’ but ‘briefly paused’. There is little distinction between ‘brief’ and ‘fleeting’. In any event, such a descriptor does not ignore the totality of the interaction between them. That said, such fleeting or brief interaction makes accurate recognition less likely. During each sighting Ms Callison’s attention was caught by the activity of the young man and she did not make any observation of the physical attributes of the young man sighted second, particularly his unusual height. Before the trial Ms Callison had never before said that that young man came from the tent. Her detailed notes made no connection between the young men separately sighted by her on 2 and 3 December, but do connect the young man sighted on 2 December with the young man sighted by her husband in the amenity block on the morning of 3 December. Further, it is to be remembered that Mr Costello was homeless and attended the amenity block that morning wearing nothing but his underpants. The young man sighted on the afternoon of 3 December 2018 was carrying ‘a lot of very neatly folded clothes’. If that was Mr Costello, his behaviour post-shooting had changed significantly.
Further, the evidence of Ms Callison was not to be considered in an isolated manner. As recognised by the judge, her evidence was relevant to the issue of whether it was reasonably possible that Mr Costello returned to the Showgrounds on the afternoon of 3 December 2018. That went directly to Mr Costello’s credibility on a critical matter, and therefore whether his evidence that the applicant shot Ms Pante should be accepted beyond reasonable doubt.[41] It was also relevant to whether Mr Costello retained the key to the padlock on the tent post-shooting and whether he or the applicant was responsible for the fire.
[41]Reasons, [466].
In this context the judge analysed the evidence of Ms Callison along with the inherent implausibility that Mr Costello returned to the Showgrounds and the evidence of Ms Walton that Mr Costello arrived at her house in Colac between about 3:00 pm and 5:00 pm on 3 December 2018 (considered with respect to ground 5 below). Taken as a whole, it was open to the judge to find that Ms Callison was an honest but mistaken witness.
It follows that proposed ground 4 cannot succeed.

Ground 5 – Mr Costello’s return to the Showgrounds

As noted above, the judge considered the evidence of Ms Callison as part of the evidence relevant to whether Mr Costello returned to the Showgrounds on the afternoon of 3 December 2018. In concluding that he did not, the judge also considered the evidence of Ms Walton that Mr Costello arrived at her Colac home between 3:00 pm and 5:00 pm that day.[42] She said that he arrived through the back door and she did not ask him any questions upon arrival. Later that evening he came and ate tea with her, and then went to bed; and she went to bed at around 8:30pm. Ms Walton said that on 4 December 2018, after she got up at around 6:00 or 6:30 am, she saw Mr Costello asleep in bed. She saw him again before she left for work at around 8:30 am. She also saw him when she returned home from work that day after 3:00pm. She and Mr Costello left her home in the late afternoon / early evening of 4 December 2018 to attend the Geelong Police Station.
[42]A third strand considered by the judge was the ‘inherent implausib[ility]’ that Mr Costello did return to the Showgrounds: Reasons, [476].
There was some discrepancy between the evidence of Mr Costello and Ms Walton as to how she became aware that he had witnessed a murder.
Mr Costello said that sometime after 5:00 pm on 4 December 2018 there was something on the television about a tent fire in Geelong. His mother asked him if he knew anything about it. At about the same time his mother also said to him that she had received a phone call from Eli Cashion, and told him that Mr Cashion was worried about him. His mother then asked him what was going on. He said that she ‘thought it was a bit suss’ that the tent fire, the call from Mr Cashion and him returning home all happened at once. Mr Costello told her that he had witnessed a murder and that Ms Pante was dead. Ms Walton asked him further questions about what he had seen. He then travelled with his mother and grandfather to Geelong, speaking to a lawyer on the way. Mr Costello told his mother about the Centrelink call on the way to Geelong.
In contrast, Ms Walton gave evidence that Mr Costello’s statement to her that he had witnessed a murder was ‘completely unprompted’. She said that ‘as far as [she could] remember’ she had not quizzed him about anything she had seen in the media and, at that stage, had no knowledge about any tent fire. Ms Walton said that she was shocked by her son’s statement. She asked him questions but he refused to give her details. She and her father took him to the police station.
The evidence of Mr Cashion is also relevant to the issues raised under cover of this proposed ground. Mr Cashion was telephoned by Detective Sergeant Weaver about the tent fire. As established by call charge records (‘CCRs’), the time of that call was 12:33 pm. Mr Cashion’s evidence was that he recalled it being at about 8:10 am, but accepted that he was mistaken. He was told about a body being found in the tent at the Showgrounds. He did not recall being told that the body was female. He said he attended the Geelong Police Station 15 to 30 minutes after being contacted by DS Weaver to make a statement. DS Weaver notes his attendance as being at 2:20 pm. Mr Cashion’s police statement was signed at 2:34 pm. Mr Cashion tried to call Mr Costello — concerned that it may have been his body in the tent — but his phone was turned off. Mr Cashion said that he telephoned Ms Walton in front of DS Weaver. DS Weaver said that he did not. The CCRs establish that the call to Ms Walton was made at 4:36 pm. The call lasted for six minutes and 52 seconds. Mr Cashion said that during that call he also spoke to Mr Costello and told him that he had made a police statement. He said that he asked Mr Costello what had happened. Mr Costello told him that the applicant had shot Ms Pante. Mr Costello said nothing suggesting that he (Mr Costello) was responsible for her death. Mr Cashion provided DS Weaver with the telephone numbers of both Ms Walton and Mr Costello.
In her Reasons the judge found that there was no collusion between Mr Costello, Ms Walton and Mr Cashion.[43] The judge rejected the applicant’s argument that Ms Walton’s lack of precision about when Mr Costello arrived at her home on 3 December 2018 indicated dishonesty.[44] Rather, the judge found Ms Walton’s account to be plausible.[45] The judge also rejected the applicant’s argument that Ms Walton had a motive to lie and cover up for her son.[46] As to the latter, the judge said:
… Ms Walton expressly denied this proposition and, absent a prior confession by Mr Costello (for which there is no evidence, and which was not put to Ms Walton or Mr Costello in cross-examination), had no reason to suspect that her son had killed Ms Pante. There is nothing in Mr Costello’s police statement, record of interview or committal evidence to raise such a concern. While Mr Costello was arrested when he presented to the Geelong Police Station, he was released without charge after being interviewed. Mr Costello was a witness at the committal hearing where another person, [the applicant], stood charged with Ms Pante’s murder. Mr Costello was not accused of shooting Ms Pante at the committal hearing, and there is nothing to suggest that Ms Walton expected this accusation to be made at trial.[47]
[43]Reasons, [478].
[44]Reasons, [479]-[480].
[45]Reasons, [481].
[46]Reasons, [484].
[47]Ibid.

Accordingly the judge’s finding that the evidence allowed for ‘the possibility of a range of head positions’[56] does not introduce imprecision contrary to the evidence. The angle of Ms Pante’s head was unknown. The evidence was that she was in motion at the time of the shooting. It was open to the judge to find that there was a range of head positions and that this was not inconsistent with Mr Costello’s evidence.
[56]Ibid.
Similarly, Mr Costello’s observations and demonstrations of the applicant were to his outstretched arm, rather than his wrist and the exact position of the gun. It was open to the judge as a matter of common sense to find that it was reasonably possible that there was some degree of flexion to the applicant’s wrist or angle of the gun in his hand.
It follows that ground 6 must fail.

Ground 7 – unreliability warning regarding Brodi Costello

The judge accepted the applicant’s submission that she was required to warn herself that the evidence of Mr Costello may be unreliable because he was the alternate suspect in Ms Pante’s homicide.[57] The judge said:
Accordingly, I warn myself about the need for caution when considering the evidence of Mr Costello in accordance with s 32 of the Jury Directions Act. I must give myself this warning because [the applicant] accuses Mr Costello of having shot Ms Pante, and thus, Mr Costello is an alternate suspect with a significant interest in the outcome of the case and a potential motive to fabricate or tailor his evidence in order to exculpate himself.[58]

Applicant’s contentions

[57]Reasons, [398]-[403]. The judge rejected the applicant’s submission that the warning was also required because Mr Costello was ‘criminally concerned’ in the death.

[58]Reasons, [404].

The applicant contends that the judge’s warning to herself was cursory and not applied to her assessment of Mr Costello’s evidence. This was a case where the warning was of real significance. In no part of her analysis of that evidence, even those identified as being critical matters going to his credibility, did the judge refer to the need for caution because the evidence may be unreliable. Nor did the judge make any reference to the circumstance that Mr Costello’s evidence may be unreliable when finding that neither its inconsistencies nor his omissions were dishonest[59] and that his evidence had the indicia of truthfulness.[60] That the judge only warned herself about the ‘need for caution’ when considering the evidence of Mr Costello rather than the fact that Mr Costello’s evidence may be unreliable is said to underscore the inadequate nature of the warning.

Respondent’s contentions

[59]Reasons, [523].

[60]Reasons, [524]-[525].

The respondent contends that the trial judge’s direction to herself was done pursuant to s 32 of the Jury Directions Act and the reasoning in R v Faure.[61] Its effect was to acknowledge that as the applicant had nominated him as an alternate suspect, Mr Costello might have a significant interest in the outcome of the case and a potential motive to fabricate or tailor evidence in order to exculpate himself. Although the judge referred to a need to proceed with ‘caution’ rather than directing herself in terms of the potential ‘unreliability’ of Mr Costello’s evidence in accordance with the language of s 32 of the Jury Directions Act, as an experienced Supreme Court judge, it is clear that her Honour understood the content and effect of the s 32 direction.
[61][1993] 2 VR 497.
Further, it is argued that the judge did give the warning meaningful application. The judge expressly articulated her caution with respect to aspects of Mr Costello’s evidence.

Analysis

The judge’s Reasons span some 597 paragraphs over 203 pages. They are logical and clearly articulate the legal and factual matters relevant to the judge’s verdict. Unsurprisingly given the centrality of his evidence to the trial, a significant portion of the Reasons is dedicated to an analysis of Mr Costello’s evidence, both its internal credibility and its consistency or otherwise with other evidence in the case. Some seven paragraphs are devoted to the application for an unreliability warning with respect to Mr Costello’s evidence.
Section 32 of the Jury Directions Act relevantly requires the trial judge to warn the fact finder that the evidence may be unreliable,[62] inform the fact-finder of the significant matters that the trial judge considers may cause the evidence to be unreliable[63] and warn the fact finder of the need for caution in determining whether to accept the evidence and the weight to be given to it.[64]
[62]Section 32(3)(a).
[63]Section 32(3)(b)(i).
[64]Section 32(3)(c).
The s 32 warning the judge gave herself in a single paragraph expressly articulated the last two of those matters, namely that Mr Costello had a significant interest in the outcome of the case and a potential motive to fabricate or tailor his evidence in order to exculpate himself and, accordingly, caution was required in determining whether to accept Mr Costello’s evidence. That warning, however, immediately followed a finding that the evidence may be unreliable. As the judge was warning herself rather than a jury, it was unnecessary to repeat that finding. The express, single paragraph warning proceeded on the basis that the evidence may be unreliable. The warning was succinct. It was not cursory.
Further, the absence of repeated express reference to the warning is no basis to assume that the judge did not give it meaningful operation. Read as a whole, the Reasons demonstrate that the judge was at pains to ensure that it was open on the evidence to accept Mr Costello as credible and reliable and, specifically, that she could accept his evidence of witnessing the applicant shoot Ms Pante beyond reasonable doubt. The judge had in mind all matters relevant to that decision. In any event, there are numerous examples where the judge did refer to the potential unreliability of Mr Costello’s evidence because he had been identified as an alternate suspect. Three examples suffice to illustrate the point.
First, in addressing the issue that the Centrelink officer did not hear anything unusual during the call and Mr Costello’s evidence that the sound of the shot was not very loud because the officer did not react to it, the judge said that that was:
… direct evidence that the Centrelink operator did not react to the sound, which, if true, alleviates the need to speculate about whether someone ‘would have’ heard the gunshot or not. Of course, that comment would be entirely self-serving if Mr Costello were the shooter.[65]
With the need for caution in mind, the judge found that Mr Costello’s suggestion to the police that they obtain the recording of the Centrelink call allowed a manner of objectively scrutinising his account and increased the likelihood of his evidence that the operator did not react being true. The judge found it unlikely that Mr Costello would lie in a manner that could be so easily disproved by external objective evidence.
[65]Reasons, [508].
Second, one of the ‘positive indicia of truthfulness’ of Mr Costello’s evidence articulated by the judge was his suggestion, at trial, that the CCTV footage from Colac Train Station would capture him purchasing a ticket on 3 December 2018. The judge noted that it would be strange to make such a suggestion if he knew the footage would disprove his assertion, but referred to the fact that he might have been aware that CCTV footage would not be available more than three years after the relevant event.[66]
[66]Reasons, [524(f)].
Thirdly, of the incriminating conduct relied upon by the prosecution, the judge was satisfied with respect to only five items that they were only reasonably explicable by the applicant’s belief in his guilt. With respect to another five items, namely, telling Mr Costello to get into the Suzuki Swift after the shooting, providing money to Mr Costello to spend a second night in the tent at the Showgrounds and for the padlock for the tent, reattending the Showgrounds when Ms Pante’s body was in the tent and being present when Mr Costello collected his belongings, driving the Hyundai i30 (a car unconnected to the Showgrounds) and viewing an internet article about the ‘tent fire autopsy report’, the judge was not so satisfied. The judge found that each of those items of conduct could be reasonably explained by the applicant’s account that he was assisting Mr Costello after Mr Costello killed Ms Pante.
These are but three examples of the judge’s very careful approach to and analysis of the evidence of Mr Costello, which included consideration of the potential unreliability of his evidence.
It follows that proposed ground 7 must fail.

Ground 8 – unreasonable verdict

Applicant’s contentions

The applicant submits that the specific errors articulated under proposed grounds 1 to 7 compel the conclusion that the evidence of Mr Costello could not be accepted beyond reasonable doubt for four reasons. First, his claim to be on the Centrelink call at the time of the shooting and its aftermath is both implausible and contrary to the known facts and any analysis of the surrounding circumstances. Secondly, his account of the shooting itself was contrary to the physical evidence led in the trial. Thirdly, independent evidence established that he later returned to the Showgrounds possessing the means to enter the tent and later burn it. Fourthly, his evidence was required to be assessed under the rubric of an unreliability warning.
The applicant also articulates a number of further matters in support of this ground.
Five related to the credibility of Mr Costello. First, the fundamental improbability that Mr Costello remained on the call to Centrelink after the shooting. Secondly, his evidence of the direction in which Ms Pante’s body fell was inconsistent with both the crime scene and his own sketches. Thirdly, the inherent problems in the evidence of Ms Walton. Fourthly, aspects of Mr Costello’s conduct after the shooting revealed his responsibility for it. These included fearing being blamed for murder, asking to be taken back to the tent with a gun so he could shoot himself, sending a text message to Mr Cashion regarding the applicant paying for another night’s accommodation, lying about his name and number to the caretaker at the Showgrounds when booking the additional night, not raising the alarm at the time of the padlock purchase, removing his belongings from the tent before it was secured, not raising the alarm after he left the company of the applicant and Ms Menzies and leaving his mobile phone switched off after the Centrelink call ended. Fifthly, Mr Costello had a motive to lie and had been told by the applicant ‘to put it all on him’.
The other matters concerned the evidence given by the applicant. He denied the shooting on oath. His denials were supported on the evidence. The applicant accepted responsibility and showed regret for taking the loaded firearm into the tent. His actions in the aftermath of the shooting can be viewed as reflecting his loyalty to Mr Costello and his role in taking the firearm to the scene. There was unchallenged evidence that three days prior to the shooting Mr Costello handled the firearm later used in the shooting. It was reasonably possible that the firearm other than that found in his possession in New South Wales was the weapon used to shoot Ms Pante. Further, the applicant had no motive to harm Ms Pante. The high level of detail in the applicant’s account is not a reflection of a contrived story designed to systematically meet the case against him, because it is explicable by reference to the fact that the applicant’s ‘life pretty much stopped’ when he was taken into custody mere days after the shooting.

Respondent’s contentions

The respondent contends that there was ample evidence upon which the judge could rely to be satisfied beyond reasonable doubt of the applicant’s guilt. None of the matters raised by him compel a different conclusion.
Mr Costello gave direct evidence that the applicant produced a sawn-off shotgun from his person and, with an outstretched arm, shot Ms Pante in the head at point blank range in the course of a verbal altercation. It was open to the judge to find him to be a witness of truth. His evidence was measured, unembellished and frank. He admitted matters unfavourable to himself. He gave a voluntary and early full account of events to police. Overall, his version of events remained materially unchanged over time and despite prolonged cross-examination. None of the specific matters as to his credibility raised by the applicant are significant.
There was also other evidence which corroborated or supplemented Mr Costello’s direct evidence. First, the applicant had access to a firearm which matched the type of gun used to shoot Ms Pante. Secondly, the applicant and Ms Pante were known to each other and had reason to be arguing on the morning of 3 December 2018. Mr Hollonds gave evidence that Ms Pante had said that she owed the applicant money and intended to use clothing in exchange for some sort of drug transaction. Thirdly, the applicant was instrumental in the initial cover-up efforts. While falling short of amounting to incriminating conduct, actions such as funding the padlock and extra night’s accommodation and changing cars, when viewed with the rest of the evidence, support the finding of guilt. Fourthly, the applicant had the opportunity and means to set fire to the tent. Fifthly, the applicant was linked to the burnt Suzuki Swift. Sixthly, the applicant sent a series of self-deleting text messages after the shooting seemingly to conceal potentially harmful evidence being detected. Seventhly, the applicant sent other text messages which can only rationally be understood as implicit admissions. Eighthly, the applicant fled to New South Wales with a firearm very closely resembling the gun used to shoot Ms Pante.
The respondent further notes that given the nature of the wound and how it was inflicted in the context of a verbal altercation, the only available inference was the act of shooting was deliberate, voluntary and intended to kill. The absence of any motive was, thereby, neutral and not a matter of which the judge was required to be satisfied.[67]
[67]De Gruchy v The Queen [2002] HCA 33; (2002) 211 CLR 85, 99 [53] (Kirby J).
In contradistinction to the assessment of Mr Costello, the respondent submits that the judge could comfortably find that the applicant was not a witness of truth. His evidence was riddled with internal inconsistencies and contradictions. Parts of it, like his explanation that his statement to Mr Costello to ‘put the blame on him’ referred to his moral culpability rather than direct responsibility, were implausible. Other parts of it were oddly precise and certain. It was open to the judge to find that the applicant’s account was a systematic attempt to meet the case against him with a large amount of fabricated evidence.

Analysis

Section 276(1)(a) of the Criminal Procedure Act 2009 requires this Court to allow an appeal against conviction if satisfied that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence. In order to succeed the applicant must demonstrate that it was not open to the judge — who stands in the shoes of the jury[68] — to be satisfied beyond reasonable doubt of his guilt. The question for this Court is whether it was open to the judge, acting rationally, to be satisfied to the criminal standard that the accused was guilty.[69] To determine that question the Court is required to undertake an independent assessment of the whole of the evidence.[70] In so doing the Court is required to assume that Mr Costello’s evidence was assessed by the judge to be credible and reliable but nonetheless examine the record to see whether ‘either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence’[71] the judge ought to have entertained a reasonable doubt as to proof of guilt. The Court is also required to give full weight to the judge’s advantage in listening to and observing the witnesses.[72]
[68]Criminal Procedure Act 2009, s420F(2).
[69]M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ) (‘M’); Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123, 146-7 [42]-[45] (‘Pell’); Dansie v The Queen [2022] HCA 25; (2022) 274 CLR 651, 657-8 [8]-[9] (Gageler, Keane, Gordon, Steward and Gleeson JJ) (‘Dansie’).
[70]Pell, [39]; Dansie, [12].
[71]Pell, [39].
[72]M, 493.
Having undertaken such a review, it was, in our view, well open to the judge to be satisfied of the applicant’s guilt beyond reasonable doubt.
The trial involved two competing and mutually exclusive eye-witness accounts of Ms Pante’s death. It follows that either Mr Costello or the applicant gave a deliberately dishonest account of the shooting. The applicant’s evidence should be rejected as untruthful because he was not a witness of credit. In short, he lied about having witnessed Mr Costello shoot Ms Pante. It is not necessary to detail all aspects of his evidence that compel this conclusion. The following illustrations suffice.
The applicant’s evidence concerning what occurred when he visited Ms Pante and Mr Costello in the Kardinia Motel was unsatisfactory. Despite stating that he had the gun for protection as part of his trade as a drug dealer, he left it on the bed in the motel room when he went outside to conduct a drug transaction. Following the incident upon his return, when Mr Costello pointed the gun at both the applicant and Ms Pante, the applicant said that he took the unloaded gun off Mr Costello and put it in his bum bag, which he was wearing, so that Mr Costello could not again get hold of it that night. Yet two days later the applicant casually left what he knew to be a loaded gun within reach of Mr Costello.
The applicant said that Ms Pante performed oral sex on him in exchange for drugs at the Kardinia Motel while Mr Costello was in the shower. Despite that incident being kept deliberately secret from Mr Costello at the applicant’s direction, Ms Pante offered to again perform oral sex on him on the morning of 3 December 2018 in front of Mr Costello. On the applicant’s case, that and/or the alleged homophobic retort of Ms Pante to him was sufficient to trigger Mr Costello’s anger to the point where he pointed a gun (albeit one he did not know was loaded) at Ms Pante’s head and pulled the trigger. The evidence of the nature of the short-lived relationship between Ms Pante and Mr Costello makes such a reaction unlikely.
The applicant said that he loaded the gun on the morning of 3 December 2018 because he had received warning of a direct threat to himself. That evidence was inconsistent with his evidence concerning the possibility that he might loan or sell the gun to Mr Fry, a man previously unknown to him, who was in dispute with Jeremy Bingham, a drug dealer, and who also wanted to rob another drug dealer, Mr Dickinson. Mr Fry denied all knowledge of Mr Bingham. He also denied he had been in the tent with the applicant and Ms Pante, and denied that he had asked the applicant to provide him with a gun so that he could rob Mr Dickinson.
The applicant’s evidence that his utterance to Mr Costello to the effect of ‘put the blame on me’ in the immediate aftermath of the shooting was a reference to his moral culpability for leaving a loaded gun in Mr Costello’s presence, rather than to his direct culpability for shooting Ms Pante, and, further, was intended only to reassure Mr Costello that he would not go to the police while they were separated, is extremely unconvincing. If he had meant that he would have said it. Otherwise he risked Mr Costello, who departed Geelong for Colac at the first available opportunity, doing exactly what those words suggest — telling the police that the applicant shot Ms Pante.

The applicant said that his message to Mr Drew, ‘when they get me I’m doing 10 yrs min’ was a concern about his offending, but not the homicide of Ms Pante. He said he was told that the Hyundai i30 was stolen in a home invasion and he risked getting seven years for the home invasion offence. The Hyundai was not, in fact, stolen in a home invasion, but from a carpark at the beach. It is fanciful to suggest that a vendor of a stolen vehicle would decrease its value to a potential purchaser by inventing that detail. The reasonable inference is that the applicant lied about the alleged association between the car and a home invasion to explain away the figure of ten years in his message to Mr Drew.
Similarly, it is not credible that the reference to ‘survived the jacks’ in another message to Mr Drew was to police ‘high beaming’ him in the early hours of 3 December 2018. The message was sent more than 36 hours after the alleged high beaming, in which period the applicant said he had witnessed a homicide and disposed of the Hyundai.
There were many aspects of the applicant’s evidence that were surprisingly detailed. He displayed an ability to recall minutiae which provided an answer to every piece of evidence adverse to him. For example, he recalled that the windows to Mr Hollonds’ car were up sometime before the shooting. The inference contended for by the applicant was that if Mr Hollonds heard the gunshot, it was loud enough that if Mr Costello was on the Centrelink call, the officer must have heard it. The applicant said he could recall each specific call with Ms Pante in the early hours of 3 December 2018. That the applicant said that they were about arranging an opportunity for her to perform oral sex on him was tied to his evidence that she again offered to do so in the tent in front of Mr Costello, being the trigger for Mr Costello to grab the gun and shoot Ms Pante.
The applicant’s evidence should therefore be rejected as a dishonest fabrication designed to systematically meet the case against him.
Putting the applicant’s evidence aside, there was ample evidence to establish the applicant’s guilt beyond reasonable doubt. Mr Costello’s evidence should be accepted beyond reasonable doubt. The matters considered under cover of grounds 1 to 7 are not repeated, but none of the further five issues as to Mr Costello’s credibility raised by the applicant alter the position.
When the evidence is considered as a whole, it is not fundamentally improbable that Mr Costello remained on the Centrelink call. As stated by the prosecution before the judge, his actions in doing so were not heroic, but that does not make Mr Costello’s account unlikely. It is to be remembered that he was homeless, desperate and drug affected. The phone call was to finalise a source of income, namely Newstart Allowance. What is improbable is that in the aftermath of Mr Costello killing Ms Pante, and in circumstances where the applicant was concerned that he, Ms Menzies and Mr Costello turn off their mobile phones, Mr Costello sat in the back of the Suzuki Swift and participated in the call.
Dr Lynch gave evidence that the injury to Ms Pante would have caused instantaneous incapacitation causing her body to fall in any direction. The fact that she was moving would also have affected which way her body fell. It is therefore not the case that Ms Pante fell backwards away from Mr Costello rather than the applicant.
The evidence of Ms Walton is addressed under cover of ground 5 above.
The aspects of Mr Costello’s behaviour in the aftermath of the shooting nominated by the applicant as being revelatory of his guilt are not. Again it is unnecessary to address each matter. The fact that Mr Costello did tell his mother and did go to the police about the incident answers them.
Moreover, Mr Costello only had a motive to lie if it is first assumed he is guilty. And, as explained above, the applicant’s injunction to ‘put the blame on him’ has only one reasonable interpretation.
Lastly, the post-offence conduct of the applicant was evidence of his belief in his guilt of murder. One example suffices. It is implausible that the applicant went to New South Wales because he received a ‘shocked’ emoji from Ms Pante’s Facebook account. By the time he received that communication, the applicant was actively avoiding police detection and making plans to flee. On his account he disposed of the Suzuki Swift, sold the gun used to kill Ms Pante, stayed away from his usual residence at Ms Menzies’ house, withdrew all his money from his bank account on the night of 3 December and sold the Hyundai i30.
It follows that proposed ground 8 must fail.

Conclusion

Leave to appeal against conviction must be refused.

[2024] VSCA 208

19 September 2024