Director of Public Prosecutions v Cross

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2019 0243

DIRECTOR OF PUBLIC PROSECUTIONS	Prosecution
v
NICHOLAS JAMES CROSS	Accused

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JUDGE:	Incerti J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 March, 1, 4–8, 11–13, 26–29 April, 2–4 May 2022
DATE OF JUDGMENT:	10 June 2022
CASE MAY BE CITED AS:	DPP v Cross
MEDIUM NEUTRAL CITATION:	[2022] VSC 314

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CRIMINAL LAW – Trial by judge alone – Murder – Direct and circumstantial evidence – Causation – Whether the accused shot the deceased – No reasonable hypothesis consistent with innocence – Incriminating conduct – Evidence that may be unreliable – Failure to put or challenge evidence – Crimes Act 1958 (Vic) ss 325, 421; Criminal Procedure Act 2009 (Vic) ss 420E, 420F, 420G; Evidence Act 2009 (Vic) ss 32, 38, 60, 128, 136; Evidence (Miscellaneous Provisions) Act 1958 (Vic) ss 42E, 42G, 130, 135, 184; Jury Directions Act 2015 (Vic) ss 4A, 19, 20, 21, 22, 31, 32, 61; Justice Legislation Amendment (Trial by Judge Alone and Other Matters) Act 2022 (Vic)– Browne v Dunn (1893) 6 R 67; De Gruchy v The Queen (2002) 211 CLR 85; Ferguson v The Queen [2020] VSCA 166; Pell v The Queen (2020) 268 CLR 123; R v Faure (1993) 2 VR 497; R v Morrow (2009) 26 VR 526; R v Ritchie [2019] VSCA 202; R v Thompson (2008) 187 A Crim R 89; Spurritt v The Queen [2021] VSCA 7.

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Mr D Glynn with Ms E Ramsay	Office of Public Prosecutions
For the Accused	Mr G Casement with Ms L Andrews	Adrian Paull Criminal Lawyers

TABLE OF CONTENTS

Introduction and summary of conclusions................................................................................... 1

Procedural history.............................................................................................................................. 4

Judge alone trial – principles........................................................................................................... 6

Elements of murder........................................................................................................................... 9

Background and issues in dispute................................................................................................ 10

Evidence............................................................................................................................................. 18

Brodi Costello.............................................................................................................................. 20
Jesse Hollonds.............................................................................................................................. 41
Jake Fry......................................................................................................................................... 47
William Steele.............................................................................................................................. 51
Leonnie Walton........................................................................................................................... 52
Eli Cashion................................................................................................................................... 56
Diana Callison............................................................................................................................. 59
John Callison................................................................................................................................ 63
Christopher Barker...................................................................................................................... 65
Shannon Purdie........................................................................................................................... 67
Geoffrey Evans............................................................................................................................ 68
Detective Sergeant Glen Weaver.............................................................................................. 69
Detective Sergeant Luke Farrell................................................................................................ 71
Detective Senior Constable Thomas Asciak............................................................................ 72
Dr Matthew Lynch...................................................................................................................... 78
George Xydias.............................................................................................................................. 81
Erin Pirie....................................................................................................................................... 83
Leading Senior Constable Paul Griffiths................................................................................. 85
Nicholas Cross............................................................................................................................. 89

Applications regarding use of evidence.................................................................................... 116

Exclusion under s 136 of the Evidence Act.............................................................................. 117
Failure to put and/or challenge under Browne v Dunn....................................................... 117
Prosecution breaches in relation to Mr Cross’ evidence............................................ 118
Prosecution breaches in relation to Mr Costello’s evidence...................................... 123

Application for an unreliability warning.............................................................................. 126

Causation......................................................................................................................................... 128

Prosecution submissions.......................................................................................................... 128
Mr Costello is a credible witness................................................................................... 129
Centrelink call..................................................................................................... 130
Sighting at the Showgrounds........................................................................... 131
Autopsy findings and mechanism of the shooting....................................... 132
Mr Costello’s conduct after the shooting........................................................ 133
Motive to brandish gun..................................................................................... 133

Mr Cross’ account is a fabrication................................................................................. 134
Other evidence supports Mr Costello’s account......................................................... 137

Defence submissions................................................................................................................. 139
Mr Costello’s account is a fabrication........................................................................... 140
Sighting at the Showgrounds........................................................................... 140
Centrelink call..................................................................................................... 141
Autopsy findings and mechanism of the shooting....................................... 142
Mr Costello’s conduct after the shooting........................................................ 143
Other evidence conflicts with Mr Costello’s account.................................... 144
Motive to lie......................................................................................................... 145

Mr Cross is a credible witness....................................................................................... 146
Alleged incriminating conduct...................................................................................... 147

Analysis...................................................................................................................................... 148
Mr Costello’s evidence.................................................................................................... 148
Mr Costello did not return to the Showgrounds........................................... 149
Ms Pante’s shooting could have occurred during the Centrelink call....... 158
Mr Costello’s account is consistent with Ms Pante’s autopsy results........ 164
Mr Costello’s inconsistencies and omissions were not dishonest............... 168
Mr Costello’s evidence has positive indicia of truthfulness........................ 169
Mr Costello did not demonstrate a consciousness of guilt.......................... 171

Mr Cross’ evidence.......................................................................................................... 172
Many aspects of Mr Cross’ account are inherently implausible................. 174
Many aspects of Mr Cross’ account are difficult to reconcile...................... 178
Mr Cross’ precision and certainty suggest a fabrication.............................. 183

Mr Cross’ conduct after the shooting........................................................................... 185

Conclusion on causation.......................................................................................................... 193

Remaining elements...................................................................................................................... 193

Prosecution submissions.......................................................................................................... 194
Defence submissions................................................................................................................. 195
Analysis...................................................................................................................................... 195

Conclusion....................................................................................................................................... 197

Verdict.............................................................................................................................................. 197

HER HONOUR:

Introduction and summary of conclusions

Nicholas James Cross is charged with the murder of Maddison Jane Pante, contrary to the common law. Mr Cross was arraigned on 31 March 2022 and pleaded not guilty.

Ms Pante died as the result of a gunshot to her forehead. She was shot inside a ‘glamping’ tent erected at the Geelong Showgrounds (‘Showgrounds’) in Breakwater, Geelong on the morning of Monday 3 December 2018. Present in the tent at the time of the shooting were Mr Cross, Tracy Menzies, a friend of Mr Cross, and Brodi Costello, Ms Pante’s intimate partner for a short period prior to her death.

It is not disputed that Ms Pante was shot with a firearm that Mr Cross brought to the Showgrounds on the morning of 3 December.[1] Mr Costello is the prosecution’s key witness, and said that he witnessed Mr Cross shoot Ms Pante with that firearm. This is direct evidence that Mr Cross caused Ms Pante’s death. The prosecution case also includes a body of circumstantial evidence in relation to Mr Cross’ conduct after Ms Pante’s death, which it says demonstrates Mr Cross’ consciousness of guilt.
[1]Exhibit P4 (Statement of agreed facts filed 31 March 2022), [3]–[4].

At trial, Mr Cross gave evidence in his own defence and said that it was Mr Costello who shot Ms Pante inside the tent. Mr Cross said that Mr Costello picked up the gun from the bed, thinking it was unloaded, cocked it, pointed it at Ms Pante and fired. In other words, Mr Cross said that Mr Costello shot Ms Pante accidentally.

The identity of the shooter is therefore the critical issue in this case.

As explained in these reasons, I am satisfied beyond reasonable doubt that Mr Cross shot Ms Pante and caused her death. This conclusion has three bases, each comprised of specific subcomponents. In summary:

(a)I accept Mr Costello’s direct evidence that Mr Cross shot Ms Pante. Specifically:

(i) I reject as a reasonable possibility that Mr Costello returned to the Showgrounds on the afternoon of Monday 3 December;

(ii) I am satisfied that Ms Pante’s shooting could have occurred during Mr Costello’s call with Centrelink;

(iii) I am satisfied that Mr Costello’s account of the shooting is consistent with Ms Pante’s autopsy results;

(iv) I do not consider that the limited inconsistencies between Mr Costello’s account at trial and his earlier accounts, or his omission of certain collateral details in his earlier accounts, are indicia of dishonesty;

(v) I consider that Mr Costello’s evidence has many positive indicia of truthfulness; and

(vi) I do not consider that Mr Costello’s conduct after the shooting demonstrates a consciousness of guilt;

(b)I consider that Mr Cross is not a witness of credit, and therefore reject his direct evidence that Mr Costello shot Ms Pante. Specifically:

(i) many aspects of Mr Cross’ account are inherently implausible;

(ii) many aspects of Mr Cross’ account are difficult to reconcile with other aspects; and

(iii) the precision and certainty of Mr Cross’ account suggest a dishonest fabrication.

While there are many aspects of Mr Cross’ account that may well be true, the only reasonable explanation for the implausibilities, issues reconciling aspects of his account, and precise recollections, when considered in aggregate, is that Mr Cross has moulded a version of events to meet the case against him; and
(c)I consider that the only reasonable explanation for certain aspects of Mr Cross’ conduct after the shooting, when considered in aggregate, is his belief that he caused Ms Pante’s death. Specifically:

(i) I am satisfied to a high degree of probability that Mr Cross burnt the tent containing Ms Pante’s body, or instructed someone to burn it;

(ii) I am satisfied to a high degree of probability that Mr Cross burnt the Suzuki Swift that he drove to the Showgrounds, or instructed someone to burn it;

(iii) I reject Mr Cross’ explanation of why he fled Victoria in the days after the shooting;

(iv) I reject Mr Cross’ explanation of why he sent a message to Mr Drew on 4 December saying he ‘wasn’t going to go anywhere without them [the police] knowing the situation’ and, ‘When they get me I’m doing 10yrs min’; and

(v) I reject Mr Cross’ explanation of why he sent self-deleting Facebook messages to Ms Purdie on 4 December telling her to, ‘Forget all about the Suzuki Swift’ and saying, ‘You know nothing about the 22 [calibre sawn-off rifle]’.

I am also satisfied that Mr Cross shot Ms Pante in substantially the manner described by Mr Costello, that is: at point blank range in the context of an ongoing verbal argument with Ms Pante and in circumstances where Ms Pante presented no serious threat to Mr Cross. On this basis, I am satisfied beyond reasonable doubt that Mr Cross’ shooting of Ms Pante was conscious, voluntary and deliberate, that he intended to kill Ms Pante or cause her really serious injury when he shot her, and that he had no lawful justification or excuse for doing so.

Even if I was not satisfied that Mr Cross’ conduct after the shooting constituted incriminating conduct in the legal sense, I would still be satisfied beyond reasonable doubt, on the balance of the evidence, that Mr Cross: caused Ms Pante’s death; did so consciously, voluntarily and deliberately; intended to kill Ms Pante or cause her really serious injury when he caused her death; and had no lawful justification or excuse for doing so.

I therefore find Nicholas James Cross guilty of murder.

Procedural history

This matter has a long procedural history beset by delay.

The trial of the charge against Mr Cross was originally scheduled to commence on 18 May 2021 in Geelong. Following two unsuccessful attempts at empanelling a jury, the proceeding was transferred to Melbourne.[2] Between 27 May 2021 and 1 March 2022, the proceeding was listed for trial and subsequently vacated on eight occasions due to complications arising from the COVID-19 pandemic.[3]
[2]See order of the Honourable Justice Incerti dated 19 May 2021 under s 192 of the Criminal Procedure Act 2009 (Vic) transferring the proceeding to Melbourne.
[3]See order of the Honourable Justice Incerti dated 25 February 2022 under s 247(1) of the Criminal Procedure Act 2009 (Vic) extending the time limit for the commencement of Mr Cross’ trial beyond the 12 month period from Mr Cross’ committal stipulated by s 211.

On 8 March 2022, a jury was empanelled and a trial commenced. On 15 March 2022, the trial was vacated and the jury discharged, again due to complications arising from the COVID-19 pandemic.

Mr Costello gave evidence over two days during the initial jury trial. That evidence was recorded. However, Mr Costello was still in cross-examination when the trial was vacated. After the jury was discharged, the parties agreed that it was preferable for Mr Costello to conclude his evidence by way of recording, and for the entirety of his recorded evidence to be played before the new jury.

A new trial date was set for 24 March 2022; however, this was also vacated due to the COVID-19 pandemic. The remainder of Mr Costello’s evidence was recorded over 28 and 29 March 2022 in the absence of a jury.

On 30 March 2022, the Justice Legislation Amendment (Trial by Judge Alone and Other Matters) Act 2022 (Vic) came into effect. That Act creates temporary amendments to the Criminal Procedure Act 2009 (Vic) (‘Criminal Procedure Act’) to allow the trial of indictable offences before a judge sitting alone.[4] On the same day, Mr Cross applied for a trial by judge alone pursuant to s 420E of the Criminal Procedure Act. That application was supported by the prosecution.
[4]A system of trial of indictable offences by judge alone was introduced for the first time in Victoria by the COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic); however, those provisions were repealed in April 2021.

I subsequently made an order that the charge of murder against Mr Cross be heard and determined by judge alone.

The trial commenced before me on the same day, 31 March 2022. On that day Mr Cross was arraigned and pleaded not guilty to murder.

At the trial the parties relied upon the openings given on 8 March 2022 before the jury which was ultimately discharged.[5]
[5]The transcript of the prosecution opening, pp 47 to 67, and incorporating the correction made by counsel for the prosecution on 9 March 2022 at p 90, was tendered as Exhibit P1 (Transcript of prosecution opening). The transcript of the defence opening, pp 67 to 77, was tendered as Exhibit D1 (Transcript of defence opening).

The audio-visual recording of Mr Costello’s evidence was played to the Court on 31 March, and 1 and 4 April 2022, and was received as prima facie evidence of his examination in chief, cross-examination and re-examination under s 135 of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) (‘Evidence Misc. Act’).

The following prosecution witnesses gave their evidence remotely via audio-visual link with the consent of the prosecution and defence and pursuant to ss 42E and 42G of the Evidence Misc. Act:

(a) William Steele;

(b) Diana Callison;

(c) John Callison;

(d) George Xydias; and

(e) Erin Pirie.

The prosecution closed its case on 26 April 2022. The defence called Mr Cross to give evidence and then closed its case on 28 April 2022. On 29 April 2022, the prosecution applied under s 233(2) of the Criminal Procedure Act to reopen its case for the limited purpose of adducing a further agreed fact in relation to the history of a stolen Hyundai i30 driven by Mr Cross at various points. This was not opposed by the defence. I granted leave for the prosecution to adduce that evidence. The prosecution adduced the further agreed fact pursuant to s 184 of the Evidence Act 2008 (Vic) (‘Evidence Act’).[6]
[6]Exhibit P30 (Agreed fact dated 29 April 2022).

Judge alone trial – principles

In accordance with the amendments to the Criminal Procedure Act facilitating judge alone trials, I may make any decision that could have been made by a jury.[7] My decision has, for all purposes, the same effect as a jury verdict.[8] In these reasons I must include the principles of law that I have applied and the facts on which I have relied to reach my verdict.[9]
[7]Criminal Procedure Act 2009 (Vic) s 420F(1).
[8]Ibid s 420F(2).
[9]Ibid s 420G.

Section 4A of the Jury Directions Act 2015 (Vic) (‘Jury Directions Act’) applies to this case.[10] This means that my reasoning with respect to any matter to which Parts 4, 5, 6 or 7 of the Jury Directions Act makes provision must be consistent with how a jury would be directed according to the Jury DirectionsAct.[11] Similarly, I must not accept, rely on, or adopt a statement, suggestion or direction that Parts 4, 5, 6 or 7 of the Jury Directions Act prohibit a trial judge from making or giving a jury.[12]
[10]Ibid s 420ZG.
[11]Jury Directions Act 2015 (Vic) s 4A(2)(a).
[12]Ibid s 4A(2)(b).

While Part 3 of the Jury Directions Act (which concerns requests for directions) does not apply to judge alone trials, counsel nevertheless addressed me at the conclusion of evidence on the directions and principles to which I should have regard. In reaching my verdict, I have had regard to each of those matters, where appropriate.

As in a trial by jury, the onus of proof is on the prosecution and Mr Cross comes to this Court with the presumption of innocence in his favour. Mr Cross is regarded as innocent unless and until the prosecution has proved his guilt beyond reasonable doubt. The prosecution must prove beyond reasonable doubt each element of the offence charged, or an alternative offence, and the absence of any relevant defence.[13] The prosecution does not need to prove every fact that it alleges to this standard; however, facts must be clearly proved before they can be treated as established.[14]
[13]Jury Directions Act 2015 (Vic) s 61.
[14]R v Dickson [1983] 1 VR 227, 235 (Starke ACJ, Crockett and McGarvie JJ); R v Van Beelen (1973) 4 SASR 353, 374–380 (Bray CJ, Mitchell and Zelling JJ).

It falls to me to consider all the evidence and decide the facts of this case. I must then apply the law to the facts I have found in order to determine whether Mr Cross is guilty or not guilty of murder.

In order to decide what the facts are in this case, I must assess the credibility and reliability of the witnesses who gave evidence. It is for me to decide whether a witness’ evidence is to be believed and the weight which should be attached to any particular evidence.

The expert evidence in this case was not disputed. I must have a very good reason not to accept undisputed expert evidence.[15] There are no good reasons to reject some or all of the expert evidence in this case.
[15]Taylor v R (1978) 22 ALR 599; R v Matusevich & Thompson [1976] VR 470; R v Matheson [1958] 1 WLR 474; R v Hilder (1997) 97 A Crim R 70; R v Klamo (2008) 18 VR 644.

Mr Cross gave evidence in his own defence. As such, I note the following:

(a) as an accused person, Mr Cross did not have to give evidence,[16] as he has the right to remain silent in court;
[16]See Jury Directions Act2015 (Vic) s 44I(2)(a).

(b) it is the prosecution who must prove Mr Cross’ guilt beyond reasonable doubt. It is not for Mr Cross to prove his innocence. This has not changed because Mr Cross chose to give evidence;[17]

(c) I must assess Mr Cross’ evidence in the same way I would assess the evidence of any other witness;[18] and

(d) I must not give less weight to Mr Cross’ evidence just because he is on trial and has an interest in the outcome of the trial.

[17]See ibid s 44I(2)(b).

[18]See Jury Directions Act2015 (Vic) s 44I(2)(c).

Further, Mr Cross’ evidence is directly contradicted by the account of a prosecution witness, Mr Costello. Notwithstanding this, it is not necessary for me to accept Mr Cross’ evidence in order to find him ‘not guilty’. Rather, I must acquit Mr Cross if his evidence (either alone or together with other evidence) gives rise to a reasonable doubt about his guilt. This is the case even if I prefer Mr Costello’s evidence to Mr Cross’ evidence. If I do not think that Mr Cross is telling the truth, but am unsure where the truth lies, I must find Mr Cross ‘not guilty’.

During his evidence Mr Cross volunteered that he had engaged in a range of criminal conduct. I must not reason that, because Mr Cross engaged in other types of criminal behaviour, he is more likely to have committed the offence charged. That kind of reasoning is prohibited. My decision must be based only on the evidence given in the trial, not on assumptions about the kinds of people who commit crimes.

In summary, there are four conclusions I might reach about Mr Cross’ evidence:

(a)if I think Mr Cross’ evidence is true, then I will find him not guilty;
(b)if I am not sure whether Mr Cross’ evidence is true, but think it might be, then I will have a reasonable doubt about the prosecution case, and again, I will find Mr Cross not guilty;
(c)if I merely prefer Mr Costello’s evidence to Mr Cross’ evidence, I must find Mr Cross not guilty. It is not sufficient for me to merely find the prosecution case to be preferable to the defence case. In other words, it is not a question of simply balancing one case against the other. The prosecution must establish Mr Cross’ guilt beyond reasonable doubt; and
(d)if I reject Mr Cross’ evidence, that does not mean I must find him guilty. Instead, if I reject his evidence, I must put it aside and ask whether the prosecution has proved Mr Cross’ guilt beyond reasonable doubt, on the basis of the evidence I do accept.

Finally, I note that the prosecution did not call Ms Menzies to give evidence in this case. The defence did not impugn the prosecution’s decision not to call Ms Menzies, but did seek an anti-speculation warning.[19] I cannot identify any good reasons for not doing so. Accordingly, I must not speculate about what Ms Menzies might have said had she given evidence, and can only decide the case on the evidence before the Court.
[19]See generally Dyers v R (2002) 210 CLR 285, [6], [15].

Elements of murder

In order for me to return a guilty verdict, the prosecution must prove each of the four elements of murder beyond reasonable doubt. The four elements are that:

(a)the accused committed acts which caused the victim’s death;
(b)the accused committed those acts consciously, voluntarily and deliberately;
(c)the accused committed those acts while intending to kill the victim or cause the victim really serious injury; and
(d)the accused did not have a lawful justification or excuse for those acts.

As noted above, it is not disputed that Ms Pante was shot with a firearm that Mr Cross brought to the Showgrounds on the morning of 3 December 2018.[20] The contentious fact is who fired the gun. The defence asserts that, on the available evidence, the prosecution has not excluded as a reasonable possibility that Mr Costello fired the gun. Accordingly, the defence asserts that the first element is not made out.
[20]Exhibit P4 (Statement of agreed facts filed 31 March 2022), [3]–[4].

As a result of the defence’s position – that Mr Costello and not Mr Cross shot Ms Pante – relatively little attention was directed at trial to the remaining three elements of the offence. Nevertheless, in order to return a guilty verdict, I must be satisfied of those elements beyond reasonable doubt. For the sake of convenience, where I refer to a ‘murderous intention’ in these reasons, I am referring to an intention to kill or cause really serious injury.

If I am not satisfied beyond reasonable doubt that Mr Cross caused Ms Pante’s death then I must return a verdict of not guilty for murder, as well as for the alternate offence of manslaughter. However, if I am satisfied beyond reasonable doubt that Mr Cross shot and killed Ms Pante, but am not satisfied beyond reasonable doubt that he had a murderous intention at that time, then it falls for me to consider alternate verdicts.

Background and issues in dispute

The following is a detailed summary of the relevant events. It includes the agreed facts.[21] The contentious elements of these events are detailed later in these reasons.
[21]Exhibit P4 (Statement of agreed facts filed 31 March 2022). Exhibit P4 replaces the statement of agreed facts prepared for the jury trial which commenced on 8 March 2022 (and was later vacated) contained in Exhibit P3 (Jury book), tab 2 (Statement of agreed facts dated 26 May 2021).

Ms Pante met Mr Costello in October 2018 through a mutual friend and, shortly after, they commenced an intimate relationship. Neither had stable accommodation, and both were using illicit drugs in the weeks prior to Ms Pante’s death. Mr Costello and Mr Cross had known each other since 2017. They gave different accounts of the closeness of their relationship. Mr Cross met Ms Pante in early November 2018 through Mr Costello.

Mr Costello was able to secure temporary accommodation at the Kardinia Motel in Latrobe Terrace, Geelong for the nights of Friday 30 November and Saturday 1 December 2018 (at trial, this was also referred to as the ‘Kardinia Hotel’). Ms Pante was staying with Mr Costello at the Kardinia Motel. At some stage, Mr Cross visited Mr Costello and Ms Pante. Mr Cross had a firearm with him. Mr Cross said Ms Pante performed oral sex on him while Mr Costello was in the shower. Mr Cross said that, later on, Mr Costello brandished Mr Cross’ firearm at Mr Cross, Ms Pante and himself. Mr Costello denied this.

Mr Costello checked out of the Kardinia Motel on the morning of Sunday 2 December. He subsequently attended an apartment above the Rheingold Restaurant in Malop Street, Geelong. Those present included Eli Cashion, a friend of Mr Costello, Ms Pante, and Jesse Hollonds, an acquaintance of Ms Pante and Mr Costello. Mr Cashion ran a business hiring out ‘glamping’ (glamorous camping) tents. He offered Mr Costello use of a tent until Mr Costello could find more stable accommodation. That afternoon, Mr Costello and Mr Cashion erected a tent at the Showgrounds for Mr Costello to stay in.

On the evening of 2 December, Ms Pante and Mr Hollonds drove to Torquay to collect an acquaintance, Jake Fry. Mr Costello stayed in the tent at the Showgrounds by himself. Throughout the course of the night Mr Hollonds drove Ms Pante and Mr Fry to various locations in Geelong. Mr Cross exchanged a number of Facebook messages, and made several voice calls, with Ms Pante between 2:43am and 7:49am on 3 December.[22]
[22]Exhibit P3 (Jury book), tab 9 (Facebook Messenger messages between Maddison Pante and Nicholas Cross).

Mr Costello was expecting a call from Centrelink on the morning of Monday 3 December to finalise his application for Newstart Allowance. Mr Costello woke up at approximately 7:30am. He called Mr Cashion at 7:44am, but received no answer.[23] He called Ms Pante at 7:47am and sent her a text message at 7:48am saying ‘Can you bring me some ice plz’.[24] Mr Cross subsequently arrived at the tent together with a woman, Tracy Menzies.[25] Mr Cross and Ms Menzies arrived in a grey Suzuki Swift,[26] and Mr Cross was in possession of a firearm.[27] Mr Cross claims that this was one of three firearms he had in December 2018. Not long after, Mr Hollonds, Mr Fry and Ms Pante arrived in a car driven by Mr Hollonds. Mr Costello said that he was returning from the shower block when they arrived. There are conflicting accounts of the sequence of events between Ms Pante’s arrival at the Showgrounds and her being shot, including who was in the tent at various times. Between 7:42am and 8:27am, Mr Costello exchanged a series of text messages with a person he recorded in his mobile phone as ‘Millzy’.[28] There is a 17 minute gap between the message sent by Millzy at 8:03am and the next message sent by Mr Costello at 8:20am, which stated:

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

[23]Exhibit D2 (Text messages between Eli Cashion and Brodi Costello 30 November to 3 December 2018), 1.

[24]Exhibit P3 (Jury book), tab 8 (Text messages from Brodi Costello).

[25]Exhibit P4 (Statement of agreed facts filed 31 March 2022), [1].

[26]Exhibit P4 (Statement of agreed facts filed 31 March 2022), [2].

[27]Exhibit P4 (Statement of agreed facts filed 31 March 2022), [3].

[28]Exhibit P9 (Text messages between Brodi Costello and ‘Millzy’ on 3 December 2018).

The two also made tentative plans to meet up later that day.

Phone records show that Mr Costello received a call from Centrelink at 8:43am, which lasted for 4 minutes 59 seconds.[29] According to Mr Costello, he was sitting on the bed in the tent when he received the call. Only Ms Menzies was present at that time. Ms Pante and Mr Cross subsequently entered the tent, arguing. He indicated for them to quieten down, which they did momentarily, before raising their voices again. Mr Costello said that he indicated to the pair to quieten down several times before Mr Cross suddenly produced a firearm and shot Ms Pante.
[29]Exhibit P4 (Statement of agreed facts filed 31 March 2022), [24].

Mr Cross denied this version of events. He said that Mr Costello was angered by Ms Pante offering to perform oral sex on Mr Cross for drugs and a homophobic comment made by Ms Pante to Mr Costello. Mr Cross said that Mr Costello picked up the firearm which Mr Cross had left on the bed and, thinking it was unloaded, cocked it, pointed it at Ms Pante and fired. Mr Cross said that Mr Costello was not on the phone to Centrelink when Ms Pante was shot, and that the call, in fact, occurred sometime later.

The Centrelink officer who made the call to Mr Costello was interviewed three days later.[30] He stated that he did not hear anything during that call or any other call that day that he would consider unusual.[31] The officer did not escalate anything of note to his manager.[32] He was not advised of the circumstances of the police investigation or what he may have heard.[33]
[30]Exhibit P4 (Statement of agreed facts filed 31 March 2022), [25].
[31]Exhibit P4 (Statement of agreed facts filed 31 March 2022), [25].
[32]Exhibit P4 (Statement of agreed facts filed 31 March 2022), [25].
[33]Exhibit P4 (Statement of agreed facts filed 31 March 2022), [25].

Mr Hollonds and Mr Fry heard what sounded like a gunshot when they were sitting in Mr Hollonds’ car not far from the tent. They immediately drove away. Mr Hollonds looked in his rear view mirror and saw Mr Costello, Mr Cross and another woman, likely to be Ms Menzies, exit the tent.

Mr Cross drove with Mr Costello and Ms Menzies in the Suzuki Swift to a vantage point outside the Showgrounds to see incoming traffic. Mr Cross said Mr Costello took his call from Centrelink at this time; Mr Costello denied this. They then drove to the caretaker’s office at the Showgrounds where Mr Costello paid for another night for the campsite with money provided by Mr Cross. Mr Costello’s name was recorded by the caretaker, William Steele, as ‘Mr Brody’ and the recorded mobile phone number omitted one digit.[34] At 9:13am, Mr Costello sent a text message to Mr Cashion saying, ‘Crossey bought us another night man’.[35]
[34]Exhibit P13 (Docket number 55105 dated 3 December 2018).
[35]Exhibit P3 (Jury book), tab 8 (Text messages from Costello).

Mr Cross then drove to the suburb of Belmont, and dropped Mr Costello at a two dollar shop to purchase a padlock for the tent, again using Mr Cross’ money. Mr Costello said this was Mr Cross’ idea; Mr Cross said it was Mr Costello’s idea. The three then returned to the tent and Mr Costello collected his belongings. Mr Costello said that Mr Cross locked the tent using the padlock and retained the key; Mr Cross said that Mr Costello locked the tent. Mr Cross did not know what happened to the key, but denied that he retained it.

The three then travelled to a house in Norlane. Mr Costello and Ms Menzies swapped into a white Hyundai i30. That car had been stolen from a carpark at Raaf’s Beach (situated between Barwon Heads and Ocean Grove) between 6:30am and 7:15am on Saturday 1 December.[36] Before they parted, Mr Cross said to Mr Costello words to the effect of ‘put it all on me’ or ‘you can put the blame on me’. The intended meaning of these words is contested.
[36]Exhibit P30 (Agreed fact dated 29 April 2022).

Ms Menzies drove Mr Costello to the North Shore Train Station. According to Mr Costello, he travelled to the Waurn Ponds Train Station, slept for some time, and then took the train to Colac where his mother, Leonnie Walton, lived. He walked to Ms Walton’s house, greeted her, and went to bed. He said that he rose for dinner before returning to bed and slept through until the next day, Tuesday 4 December. There was a dispute about whether Mr Costello was seen again at the Showgrounds on the afternoon of Monday 3 December.

Mr Cross said that, after he parted with Mr Costello and Ms Menzies, he sold the Suzuki Swift and the firearm used to kill Ms Pante, before reuniting with Ms Menzies. They went to Ms Menzies’ house, arriving at about 11:30am. They then travelled to visit Mr Cross’ friend Todd Sell, who was at a house in Kurunjang belonging to Christopher Barker, a friend of Mr Sell. Mr Cross said that they stayed there until about 9:00pm, smoking drugs and cleaning their respective cars. Mr Cross said that he and Ms Menzies then drove to Geelong to sell drugs. According to Mr Cross, he unsuccessfully attempted to sell the Hyundai i30 during the evening. He said that he and Ms Menzies ended up parked at a lookout spot in the suburb of Lara and that he slept in the car until the morning.

At about 1:36am on the morning of Tuesday 4 December, Mr Hollonds made a call to 000 and reported a tent on fire at the Showgrounds.[37] At about 1:47am, the Geelong Country Fire Authority arrived and found the glamping tent on fire.[38] Senior Station Officer Rodney Hovell observed the flame height to be 300mm to 500mm.[39] The firefighters extinguished the fire and found Ms Pante’s body.[40] Police arrived a short time later and established a crime scene, which was guarded until properly searched and analysed.[41]
[37]Exhibit P3 (Jury book), tab 12 (Transcript of 000 call made by Jesse Hollonds); Exhibit P4 (Statement of agreed facts filed 31 March 2022), [5]; P6 (Recording of 000 call by Jesse Hollonds).
[38]Exhibit P4 (Statement of agreed facts filed 31 March 2022), [6].
[39]Exhibit P4 (Statement of agreed facts filed 31 March 2022), [6].
[40]Exhibit P4 (Statement of agreed facts filed 31 March 2022), [6].
[41]Exhibit P4 (Statement of agreed facts filed 31 March 2022), [7].

Mr Cross said that he turned on the radio at about 8:30/9:00am, and learned that a body had been found in a tent fire at the Showgrounds. He said that he immediately sought to get back the Suzuki Swift he had sold the previous day. According to Mr Cross, he was unable to contact the new owner, but managed to return the purchase money to the new owner’s girlfriend and told her that the car needed to leave Geelong immediately.

At about 9:45am on 4 December, Mr Cross and Ms Menzies attended The Village Shopping Centre in Bacchus Marsh in the Hyundai i30 and were captured on CCTV leaving at about 9:55am.[42] Immediately after, Mr Cross and Ms Menzies attended a Coles Express petrol station in Bacchus Marsh and were captured on CCTV purchasing fuel for the Hyundai i30.[43] At 10:51am, Mr Cross viewed the Bay FM 93.9 webpage in relation to an article titled ‘Police Await Tent Fire Autopsy Results’ on his phone.[44]
[42]Exhibit P4 (Statement of agreed facts filed 31 March 2022), [8].
[43]Exhibit P4 (Statement of agreed facts filed 31 March 2022), [8].
[44]Exhibit P4 (Statement of agreed facts filed 31 March 2022), [12].

Between 10:29am and 12:25pm, Mr Cross exchanged a series of text messages with Todd Sell,[45] whereby Mr Cross sought Mr Sell’s assistance to book accommodation.[46] The Discovery Park in Braybrook has records of a phone booking at 11:26am. a ‘Nick Cross’ paying 139 dollars in cash at 12:28pm on 4 December for a cabin for two people for one night.[47] At 3:40pm, Mr Cross sent Mr Sell a text message saying ‘Cars going in 10min if you want that jerry can hurry up I can’t walk it in to where I am’.[48] Mr Cross said that he then sold the Hyundai i30 to a man named Justin Adams and waited to be collected by Mr Sell.
[45]Exhibit P4 (Statement of agreed facts filed 31 March 2022), [21]; Exhibit P3 (Jury book), tab 10 (Text messages to and from Nicholas Cross). See also Exhibit P25 (Text messages to and from Nicholas Cross) which duplicates and extends messages between Mr Cross and Mr Sell contained in Exhibit P3, tab 10.
[46]Exhibit P3 (Jury book), tab 10 (Text messages to and from Nicholas Cross); Exhibit P25 (Text messages to and from Nicholas Cross).
[47]Exhibit P21 (Statement of Catherine Pekalski dated 1 February 2019).
[48]Exhibit P3 (Jury book), tab 10 (Text messages to and from Nicholas Cross), message 55; Exhibit P25 (Text messages to and from Nicholas Cross), message 59.

At some stage on the morning of 4 December, Mr Cross sent a series of self-deleting Facebook messages to a friend, Shannon 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.’.

At 4:43pm, Mr Cross sent a text message to an associate, Traveston Drew,[49] saying that he ‘survived’.[50] When Mr Drew responded, ‘Survived what’,[51] Mr Cross replied at 4:54pm, ‘Jacks\nWas in Melton and needed somewhere to sit for a bit till heat died off’.[52] When Mr Drew messaged ‘U should of just come here bro’,[53] Mr Cross responded, ‘All g bro wasn’t going to go anywhere without them knowing the situation. \nWhen they get me I’m doing 10yrs min’.[54] At 5:08pm, Mr Cross messaged Mr Drew, ‘Hoteling it tonight interstate tomorrow hopefully’.[55]
[49]Exhibit P4 (Statement of agreed facts filed 31 March 2022), [21]; Exhibit P3 (Jury book), tab 10 (Text messages to and from Nicholas Cross). See also Exhibit P25 (Text messages to and from Nicholas Cross) which duplicates messages between Mr Cross and Mr Drew contained in Exhibit P3, tab 10.
[50]Exhibit P3 (Jury book), tab 10 (Text messages to and from Nicholas Cross), message 57; Exhibit P25 (Text messages to and from Nicholas Cross), message 61.
[51]Exhibit P3 (Jury book), tab 10 (Text messages to and from Nicholas Cross), message 58; Exhibit P25 (Text messages to and from Nicholas Cross), message 62.
[52]Exhibit P3 (Jury book), tab 10 (Text messages to and from Nicholas Cross), message 59; Exhibit P25 (Text messages to and from Nicholas Cross), message 63.
[53]Exhibit P3 (Jury book), tab 10 (Text messages to and from Nicholas Cross), message 60; Exhibit P25 (Text messages to and from Nicholas Cross), message 64.
[54]Exhibit P3 (Jury book), tab 10 (Text messages to and from Nicholas Cross), message 62; Exhibit P25 (Text messages to and from Nicholas Cross), message 66.
[55]Exhibit P3 (Jury book), tab 10 (Text messages to and from Nicholas Cross), message 65; Exhibit P25 (Text messages to and from Nicholas Cross), message 69.

Mr Costello said that when Ms Walton came home from work on the afternoon of 4 December, he told her that he had witnessed a murder. There are conflicting accounts of whether Mr Costello volunteered this information unprompted, or whether Ms Walton asked him questions after seeing news of a tent fire in Geelong and after speaking to Mr Cashion. Ms Walton called her father and it was agreed that Mr Costello should go to the police. The three then drove to the Geelong Police Station where Mr Costello was interviewed by police. During his interview, Mr Costello drew a sketch of the firearm Mr Cross brought to the tent, three sketches of the tent variously depicting its layout and the location of Ms Pante, Mr Cross, Ms Menzies and himself at the time of the shooting, and a sketch of the immediate vicinity of the Showgrounds where the tent was located.[56] Excerpts from the videorecording of the police interview were tendered in evidence,[57] and defence tendered a number of screenshots from the videorecording.[58]
[56]Exhibit P3 (Jury book), tab 6 (Costello sketches).
[57]Exhibit P10 (Excerpts from record of interview dated 4 December 2018 at timestamps: 15:24 to 17:01, 51:21 to 51:41, 54:35 to 54:58, 49:12 to 50:07 and 23:19 to 24:08); Exhibit D6 (Excerpts from record of interview dated 4 December 2018 at timestamps: 43:43 to 44:10, 48:43 to 49:13 and 50:10 to 50:31).
[58]Exhibit D3 (Photographs 1 and 2, stills from record of interview dated 4 December 2018); Exhibit D4 (Photograph 3, still from record of interview dated 4 December 2018); Exhibit D5 (Photographs 4 and 5, stills from record of interview dated 4 December 2018).

At about 7:42pm on 4 December, police responded to reports of a burnt out car in a car park beside the Barwon River in Fyansford, Geelong.[59] Police subsequently arrived and recovered a grey Suzuki Swift bearing registration plate 1DC4YQ that was completely burnt out.[60] It is agreed that the car was driven to that location and set on fire sometime between 10:30pm on Monday 3 December and 6:56pm on Tuesday 4 December.[61]
[59]Exhibit P4 (Statement of agreed facts filed 31 March 2022), [9].
[60]Exhibit P4 (Statement of agreed facts filed 31 March 2022), [9]; Exhibit P3 (Jury book), tab 7 (Photographs – burnt out car).
[61]Exhibit P4 (Statement of agreed facts filed 31 March 2022), [10].

At about 8:09pm on 4 December, Mr Cross, Ms Menzies and Mr Sell went to the Marketplace Shopping Centre in Sunshine in Mr Sell’s car.[62] They left a short time later after going to Woolworths and the ATM.[63]
[62]Exhibit P4 (Statement of agreed facts filed 31 March 2022), [11].
[63]Exhibit P4 (Statement of agreed facts filed 31 March 2022), [11].

On Wednesday 5 December, Mr Sell, Mr Cross and Ms Menzies drove to New South Wales. They arrived at the home of a man named Leif Telfer in Greystanes at about 9:00pm.[64] That night, Mr Sell slept in the house, and Mr Cross and Ms Menzies slept in the garage.[65]
[64]Exhibit P4 (Statement of agreed facts filed 31 March 2022), [13].
[65]Exhibit P4 (Statement of agreed facts filed 31 March 2022), [13].

On Thursday 6 December at about 3:45pm, police arrived at Mr Telfer’s house and arrested Mr Cross, Ms Menzies and Mr Sell.[66] They executed a search warrant and in the garage on the bed where Mr Cross and Ms Menzies had slept, located a grey bum-bag with ‘Nike’ written on it in lime green writing.[67] Inside they located a loaded Lithgow .22 calibre rim fire, 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.[68]
[66]Exhibit P4 (Statement of agreed facts filed 31 March 2022), [14].
[67]Exhibit P4 (Statement of agreed facts filed 31 March 2022), [15].
[68]Exhibit P4 (Statement of agreed facts filed 31 March 2022), [15]; Exhibit P3 (Jury book), tab 5 (Photographs – firearm).

Evidence

As noted earlier, Mr Costello’s evidence was adduced in pre-recorded audio-visual form.[69] That footage was viewed by the Court in its entirety over several days.
[69]Exhibit P2 (Recording of evidence of Brodi Costello dated 8, 9, 28 and 29 March 2022); See discussion below at paragraph 71 regarding Exhibit P11 which was marked for identification only as MFI P11 (Transcript of Brodi Costello’s evidence).

The following lay witnesses gave viva voce evidence for the prosecution:

(a)Jessie Hollonds, who drove Ms Pante to the tent on the day of the shooting;
(b)Jake Fry, an acquaintance of Ms Pante who was outside the tent in Mr Hollonds’ car at the time of the shooting;
(c)William Steele, the caretaker at the Showgrounds who took Mr Costello’s details when Mr Costello paid for another night at the campsite;
(d)Leonnie Walton, Mr Costello’s mother;
(e)Eli Cashion, a friend of Mr Costello who made available his glamping tent for Mr Costello to stay in, and assisted Mr Costello erect that tent at the Showgrounds on 2 December;
(f)Diana Callison, a woman who was staying at the Showgrounds with her husband John in their caravan at the time of the shooting;
(g)John Callison, Ms Callison’s husband;
(h)Christopher Barker, a long-time friend of Mr Sell;
(i)Shannon Purdie, a friend of Mr Cross; and
(j)Geoffrey Evans, Ms Purdie’s de facto partner, and a friend and former work colleague of Mr Cross.

The following police witnesses gave viva voce evidence for the prosecution:

(a)Detective Sergeant Glen Weaver;
(b)Detective Sergeant Luke Farrell; and
(c)Detective Senior Constable Thomas Asciak, the informant.

The following expert witnesses gave viva voce evidence for the prosecution:

(a)Dr Matthew Lynch, a forensic pathologist who conducted the autopsy on Ms Pante’s body;
(b)George Xydias, a scientist in the fire and explosion unit at the Victoria Police Forensic Services Centre, who conducted an analysis of the tent fire and Suzuki Swift fire;
(c)Erin Pirie, a forensic officer within the biological sciences unit at the Victoria Police Forensic Services Centre who conducted DNA analysis on the firearm and cartridges located in the garage at Mr Telfer’s house, and two jerry cans provided by Mr Sell to Mr Barker; and
(d)Leading Senior Constable Paul Griffiths, a firearm and toolmark examiner at the Victoria Police Forensic Services Centre who analysed the firearm located in the garage at Mr Telfer’s house to determine if it had fired the bullet found in Ms Pante’s skull.

Mr Cross gave evidence in his own defence, but no other witnesses were called for the defence.

Set out below is a summary of the relevant evidence of the witnesses.

Brodi Costello

The prosecution tendered for identification a collated version of the transcript of Mr Costello’s evidence given during the vacated jury trial and his subsequently recorded evidence. That document is marked for identification (‘MFI’) as P11. As a result of the collation, the document commences at page 95, concludes at page 502 and omits certain text and page numbers (where the relevant transcript was of legal argument or discussion of administrative matters). To avoid confusion with the transcript for the present proceeding, references to that document are marked as ‘MFI P11 (Transcript of Brodi Costello’s evidence)’.

Mr Costello was 23 years old and homeless at the time of Ms Pante’s death.[70] He is 6 foot 7 inches tall.[71] He was addicted to illicit drugs and used ice daily.[72] He was using half a gram to a gram of ice per day.[73] He agreed that he was desperate for drugs, particularly ice, if he did not have them,[74] and regarded himself as a junkie.[75] He sold drugs to support his own addiction, but said, ‘I wouldn’t call myself a drug dealer’.[76]
[70]MFI P11 (Transcript of Brodi Costello’s evidence), 95.15–20.
[71]MFI P11 (Transcript of Brodi Costello’s evidence), 166.17.
[72]MFI P11 (Transcript of Brodi Costello’s evidence), 140.17–24.
[73]MFI P11 (Transcript of Brodi Costello’s evidence), 141.21–142.11.
[74]MFI P11 (Transcript of Brodi Costello’s evidence), 143.25–28.
[75]MFI P11 (Transcript of Brodi Costello’s evidence), 143.23.
[76]MFI P11 (Transcript of Brodi Costello’s evidence), 345.02–09.

Mr Costello met Ms Pante approximately two months before she died,[77] and the relationship soon became sexual.[78] Ms Pante was also homeless.[79] Both were heavy drug users, and their relationship revolved around drug use.[80] Mr Costello said their relationship was not close, ‘We weren’t in love or anything’.[81] They did, however, spend most of their time together.[82] According to Mr Costello, their relationship had its ups and downs;[83] they argued, but not regularly.[84] In cross-examination, Mr Costello agreed that he said to police about Ms Pante, ‘we were rooting and stuff, but we weren’t in a relationship’.[85]
[77]MFI P11 (Transcript of Brodi Costello’s evidence), 96.07–13.
[78]MFI P11 (Transcript of Brodi Costello’s evidence), 96.21–24.
[79]MFI P11 (Transcript of Brodi Costello’s evidence), 96.27.
[80]MFI P11 (Transcript of Brodi Costello’s evidence), 384.08–11.
[81]MFI P11 (Transcript of Brodi Costello’s evidence), 96.30–31.
[82]MFI P11 (Transcript of Brodi Costello’s evidence), 97.01–03.
[83]MFI P11 (Transcript of Brodi Costello’s evidence), 384.22–24.
[84]MFI P11 (Transcript of Brodi Costello’s evidence), 385.23–26.
[85]MFI P11 (Transcript of Brodi Costello’s evidence), 128.19–22.

It was put to Mr Costello that he had suspicions of Ms Pante being unfaithful to him. Mr Costello denied accusing Ms Pante of ‘sleeping with someone else – fucking someone else’.[86] Mr Costello said he never confronted Ms Pante about being unfaithful to him.[87] Mr Costello was then shown the following two text messages sent on 30 November 2018:

13:32 Ms Pante to Mr Costello: You cunt.
13:34Mr Costello to Ms Pante: … how am I a cunt, I’m not the one who fucked someone else, am I?

[86]MFI P11 (Transcript of Brodi Costello’s evidence), 281.13.

[87]MFI P11 (Transcript of Brodi Costello’s evidence), 281.11–12; 382.21–22.

Mr Costello did not recall the messages,[88] but agreed that his message appeared to be an accusation of infidelity.[89] When it was put to Mr Costello that his previous denials of having accused Ms Pante of infidelity were untruthful, he said that ‘from my memory, it was the truth.’[90] Mr Costello also said he has no recollection of Ms Pante complaining to him in a message that he talked too much about ‘cock and fucking guys’.[91]
[88]MFI P11 (Transcript of Brodi Costello’s evidence), 383.09–13.
[89]MFI P11 (Transcript of Brodi Costello’s evidence), 385.18–20.
[90]MFI P11 (Transcript of Brodi Costello’s evidence), 383.24–27.
[91]MFI P11 (Transcript of Brodi Costello’s evidence), 422.31–423.02; 423.16–21.

In re-examination, Mr Costello was provided a transcript of 112 text messages exchanged between himself and Ms Pante on 30 November[92] and 42 text messages on 2 December 2018.[93] Mr Costello thought the 30 November messages were about him leaving Ms Pante.[94] When asked if he could recall any feelings of jealousy towards Ms Pante, Mr Costello said, ‘No I can’t – like I said, I can’t remember anything like that. I really can’t remember much at all from the whole period of knowing [Ms Pante].[95] After reading the 2 December messages, Mr Costello confirmed that there were no fights or disputes between him and Ms Pante from the time she came to the Kardinia Motel at about 8:00pm on 30 November until the morning of 3 December when she died.[96] When asked if his relatively placid responses to abusive messages from Ms Pante were typical for him, Mr Costello said, ‘Yeah, I’m not like an angry person. Yeah, I don’t really – is that what you mean?’[97]
[92]Exhibit P7 (Text messages between Brodi Costello and Maddison Pante on 30 November 2018).
[93]Exhibit P8 (Text messages between Brodi Costello and Maddison Pante on 2 December 2018).
[94]MFI P11 (Transcript of Brodi Costello’s evidence), 469.28–29.
[95]MFI P11 (Transcript of Brodi Costello’s evidence), 475.05–08.
[96]MFI P11 (Transcript of Brodi Costello’s evidence), 475.20–28.
[97]MFI P11 (Transcript of Brodi Costello’s evidence), 474.23–25.

Mr Costello knew Mr Cross for a couple of years prior to December 2018.[98] He purchased drugs from Mr Cross but did not have any other ‘real connection’ with him.[99] He said they were on good terms at the time of the shooting.[100] Mr Costello agreed that they referred to each other in text messages as ‘brosef’, ‘bro’ and ‘brout’,[101] and ‘neph’ (nephew) and ‘unc’ (uncle).[102] Not long before the shooting, Mr Cross helped Mr Costello retrieve clothing that had been taken from Mr Costello, either as the result of a drug debt or being stolen.[103] Mr Costello agreed that the following Facebook message from Mr Cross on 29 November related to that event:

Not a word about that to anyone. Ignore their msgs or whatever. But not one word that puts us there got it[104]

[98]MFI P11 (Transcript of Brodi Costello’s evidence), 97.06–07.

[99]MFI P11 (Transcript of Brodi Costello’s evidence), 97.06–10.

[100]MFI P11 (Transcript of Brodi Costello’s evidence), 335.24–25.

[101]MFI P11 (Transcript of Brodi Costello’s evidence), 336.31–337.06.

[102]MFI P11 (Transcript of Brodi Costello’s evidence), 367.17–22.

[103]MFI P11 (Transcript of Brodi Costello’s evidence), 370.10–372.16.

[104]MFI P11 (Transcript of Brodi Costello’s evidence), 370.06–07; Exhibit D13 (Facebook messages between Nicholas Cross and Brodi Costello), 1.

However, Mr Costello did not think that Mr Cross entered the house where his clothing was being held.[105] Mr Costello also agreed that Mr Cross had purchased a T-shirt for him on one occasion during that period.[106]
[105]MFI P11 (Transcript of Brodi Costello’s evidence), 371.31–372.07.
[106]MFI P11 (Transcript of Brodi Costello’s evidence), 367.09–14.

At the committal hearing, Mr Costello denied having ever asked Mr Cross for a firearm;[107] however, in cross-examination he said that he had, stating, ‘someone probably asked me for a firearm, and I was probably just asking around, knew [Mr Cross] had a firearm’.[108] Mr Costello accepted that his committal hearing answer was different, and said that counsel’s questioning had ‘jogged me memory’ about it.[109] Mr Costello accepted in cross-examination that he might have asked Mr Cross for a firearm in order to take a photo for his social media, although he could not recall doing so.[110] He also did not dispute that he might have asked Mr Cross for a firearm to use in a robbery of a drug dealer that never eventuated, although he could not recall doing so.[111]
[107]MFI P11 (Transcript of Brodi Costello’s evidence), 381.08–11
[108]MFI P11 (Transcript of Brodi Costello’s evidence), 380.26–381.04.
[109]MFI P11 (Transcript of Brodi Costello’s evidence), 381.05–07, 13–14.
[110]MFI P11 (Transcript of Brodi Costello’s evidence), 403.05–12.
[111]MFI P11 (Transcript of Brodi Costello’s evidence), 403.13–24.

Mr Costello stayed at the Kardinia Motel on the nights of Friday 30 November and Saturday 1 December. This was organised by Barwon Child, Youth & Family because Mr Costello was homeless. Ms Pante stayed with Mr Costello. Mr Cross visited on several occasions. Mr Costello said that, during one visit, Mr Cross had a gun in his possession, which he described as a ‘small little .22 rifle cut down into the size of [a] handgun …’.[112] Mr Costello said that Mr Cross left the gun on the bed and, when Mr Cross left the room, Mr Costello picked it up out of curiosity. He was not sure if he held his finger on the trigger or if the gun was loaded.[113] Mr Costello said he did not discharge the gun,[114] although he did accept that, given his limited memory of the event, it is possible he pulled the trigger and the gun went ‘click’.[115] Mr Costello did not know why Mr Cross left the gun on the bed.[116] Mr Costello agreed that he was ‘affected by drugs and in a euphoric state’ at the time.[117] However, he denied joking around with the gun and pulling the trigger while pointed at Mr Cross, Ms Pante and then himself.[118] He denied that Mr Cross took the gun off him and said, ‘You fucking idiot, that gun could’ve been loaded for all you knew’.[119]
[112]MFI P11 (Transcript of Brodi Costello’s evidence), 99.05–07.
[113]MFI P11 (Transcript of Brodi Costello’s evidence), 276.26–277.02.
[114]MFI P11 (Transcript of Brodi Costello’s evidence), 277.11–12.
[115]MFI P11 (Transcript of Brodi Costello’s evidence), 277.13-16.
[116]MFI P11 (Transcript of Brodi Costello’s evidence), 99.01–03.
[117]MFI P11 (Transcript of Brodi Costello’s evidence), 277.25–26.
[118]MFI P11 (Transcript of Brodi Costello’s evidence), 278.01–10.
[119]MFI P11 (Transcript of Brodi Costello’s evidence), 278.11–18.

Mr Costello had seen Mr Cross with the same gun a week or two earlier. According to Mr Costello, the two were driving together in a residential area in or near Grovedale when, for no particular reason, Mr Cross shot the gun out of the window of the car.[120] Mr Costello agreed that he initially lied to the police in his interview when he said he had not seen Mr Cross discharge the weapon before Ms Pante’s shooting.[121] However, he immediately corrected that statement when prompted in the interview.[122] In re-examination, Mr Costello confirmed his belief that Mr Cross was in possession of the same firearm when they were driving together, at the Kardinia Motel and when Ms Pante was shot.[123] He did not remember seeing Mr Cross with any other firearm.[124]
[120]MFI P11 (Transcript of Brodi Costello’s evidence), 99.13–30.
[121]MFI P11 (Transcript of Brodi Costello’s evidence), 220.29–31.
[122]MFI P11 (Transcript of Brodi Costello’s evidence), 221.01–03.
[123]MFI P11 (Transcript of Brodi Costello’s evidence), 476.01–10.
[124]MFI P11 (Transcript of Brodi Costello’s evidence), 476.22–27.

Mr Costello checked out of the Kardinia Motel on 2 December and made his way to an apartment in Geelong. In cross-examination he stated that he could not remember if he had used ice that day, but ‘I dare say I would have’.[125] Initially, Mr Costello said that he was picked up and driven by Mr Cashion, a friend of some years.[126] However, he subsequently conceded that Mr Cross may have driven him, or he may have walked.[127] Mr Costello said that Mr Hollonds and Mr Cashion were present at the apartment. Mr Costello was trying to sort out where he could stay.[128] Mr Cashion had a ‘glamping’ tent business and offered Mr Costello the use of a tent. Mr Costello has remained friends with Mr Cashion in the years since these events.[129]
[125]MFI P11 (Transcript of Brodi Costello’s evidence), 144.19–29.
[126]MFI P11 (Transcript of Brodi Costello’s evidence), 100.08–21.
[127]MFI P11 (Transcript of Brodi Costello’s evidence), 342.09–12.
[128]MFI P11 (Transcript of Brodi Costello’s evidence), 100.14–15.
[129]MFI P11 (Transcript of Brodi Costello’s evidence), 355.15–356.07.

Mr Costello and Mr Cashion subsequently travelled to the Showgrounds and set up a tent between 4:00pm and 5:00pm.[130] Mr Cashion supplied a bed, a fridge, a fan, a heater, floor mats, and a power box.[131] Mr Cashion also gave Mr Costello a padlock that could be used to lock the tent on the inside.[132] Mr Costello said that he would have unlocked that padlock on the morning of 3 December when Mr Cross arrived, but did not put it back on the tent on at any stage on 3 December.[133] Mr Costello said that he understood that Mr Cashion paid for the campsite for the night of 2 December.[134] Mr Costello understood that he could continue to use the tent if he could find the money to pay for subsequent nights.[135]
[130]MFI P11 (Transcript of Brodi Costello’s evidence), 101.06.
[131]MFI P11 (Transcript of Brodi Costello’s evidence), 101.11–15.
[132]MFI P11 (Transcript of Brodi Costello’s evidence), 476.28–477.08.
[133]MFI P11 (Transcript of Brodi Costello’s evidence), 477.09–18.
[134]MFI P11 (Transcript of Brodi Costello’s evidence), 101.18–24.
[135]MFI P11 (Transcript of Brodi Costello’s evidence), 241.13–21.

Mr Hollonds and Ms Pante arrived at the Showgrounds after the tent was set up. Mr Cashion left, and Mr Costello, Ms Pante and Mr Hollonds bought some food from the supermarket. When they returned, Mr Costello went to bed because he wanted to be rested for a phone call that was scheduled with Centrelink for the next morning. The purpose of the call was to get him started on Newstart Allowance. Centrelink was going to call him.[136] He exchanged Facebook messages with Mr Cross during that evening.[137] Those messages relevantly included the following at 6:20pm:
[136]MFI P11 (Transcript of Brodi Costello’s evidence), 103.01.
[137]MFI P11 (Transcript of Brodi Costello’s evidence), 352.19–21; Exhibit D13 (Facebook messages between Nicholas Cross and Brodi Costello), 2.

Mr Cross to Mr Costello: What doin any sales?
Mr Costello to Mr Cross: Nah no sales man, just hanging in my tent
…
Mr Cross to Mr Costello: Where ya at?
Mr Costello to Mr Cross: Show grounds ds
…
Mr Cross to Mr Costello: Should be sales there at the caravans
…
Mr Costello to Mr Cross: Can’t get Xanax but I told him to get back to you [138]

[138]Exhibit D13 (Facebook messages between Nicholas Cross and Brodi Costello), 2–3.

Mr Costello confirmed that the person he told to ‘get back to’ Mr Cross was Mr Cashion, and that Mr Cashion had Xanax.[139]
[139]MFI P11 (Transcript of Brodi Costello’s evidence), 353.24–25.

Mr Costello set alarms for 7:30, 7:45 and 8:00am on Monday 3 December.[140] On the night of 2 December he used buprenorphine just before bed to help him sleep.[141] He agreed that he woke up at 7:30am,[142] ‘refreshed, alert and ready’ for his Centrelink call.[143] He told police that he had an uninterrupted sleep and ‘slept like a baby’.[144] When he woke, he had a missed call from Mr Hollonds. Mr Costello sent a text message to Mr Hollonds at 7:31am saying, ‘sup’.[145] Mr Costello called Mr Cashion at 7:44am, but received no answer.[146] He called Ms Pante at 7:47am and sent her a text message at 7:48am saying, ‘Can you bring me some ice plz’.[147]
[140]MFI P11 (Transcript of Brodi Costello’s evidence), 103.22–25.
[141]MFI P11 (Transcript of Brodi Costello’s evidence), 144.11–14.
[142]MFI P11 (Transcript of Brodi Costello’s evidence), 165.17.
[143]MFI P11 (Transcript of Brodi Costello’s evidence), 386.07–08.
[144]MFI P11 (Transcript of Brodi Costello’s evidence), 386.03–04.
[145]MFI P11 (Transcript of Brodi Costello’s evidence), 183.09–14.
[146]Exhibit D2 (Text messages between Eli Cashion and Brodi Costello 30 November to 3 December 2018).
[147]T183.23–26; Exhibit P3 (Jury book), tab 8 (Text messages from Brodi Costello).

In re-examination, Mr Costello was read a series of messages he exchanged with a person recorded in his mobile phone as ‘Millzy’ on 3 December between 7:42am and 8:27am.[148] Mr Costello thought he could remember having a friend at the time who he referred to as Millzy, but could ‘not really’ remember Millzy’s name, and had no recollection of exchanging those messages.[149]
[148]Exhibit P9 (Text messages between Brodi Costello and ‘Millzy’ on 3 December 2018); MFI P11 (Transcript of Brodi Costello’s evidence), 480.21–485.15.
[149]MFI P11 (Transcript of Brodi Costello’s evidence), 480.14–20.

Approximately 10 minutes after sending Ms Pante the message, Mr Cross arrived at the tent.[150] Mr Costello unlocked the padlock provided by Mr Cashion and let him in.[151] Mr Cross was with a woman Mr Costello knew as ‘Rexy’, who he had met before but did not know well (this woman is agreed to be Tracy Menzies). During his police interview, Mr Costello described Ms Menzies’ appearance but said that he did not know her name or address.[152] He agreed this was despite having been to her house up to 10 times.[153] In a sketch of the locations of people in the tent at the time of the shooting Mr Costello identified Ms Menzies only as ‘other girl’.[154] In re-examination, Mr Costello confirmed that he identified Ms Menzies in a photograph shown to him by police.[155]
[150]MFI P11 (Transcript of Brodi Costello’s evidence), 183.27–30.
[151]MFI P11 (Transcript of Brodi Costello’s evidence), 184.13–18.
[152]MFI P11 (Transcript of Brodi Costello’s evidence), 377.06–11.
[153]MFI P11 (Transcript of Brodi Costello’s evidence), 377.19–25.
[154]Exhibit P3 (Jury book), tab 6 (Costello sketches), sketch 3.
[155]MFI P11 (Transcript of Brodi Costello’s evidence), 501.07–12.

Mr Costello recalled Mr Cross telling him that he (Mr Cross) owed Ms Pante 20 dollars.[156] Mr Costello said ‘I thought he was gonna drop drugs off but that wasn’t the case’.[157] Mr Costello said he did not have much of a conversation with Mr Cross. He agreed that he probably asked Mr Cross for drugs,[158] but that this was not included in his police statement.[159] He could not recall if Mr Cross and Ms Menzies smoked ice in front of him,[160] or whether he was agitated by that.[161]
[156]MFI P11 (Transcript of Brodi Costello’s evidence), 202.18–20.
[157]MFI P11 (Transcript of Brodi Costello’s evidence), 104.11–12.
[158]MFI P11 (Transcript of Brodi Costello’s evidence), 203.09–10.
[159]MFI P11 (Transcript of Brodi Costello’s evidence), 203.31–204.02.
[160]MFI P11 (Transcript of Brodi Costello’s evidence), 405.11–13.
[161]MFI P11 (Transcript of Brodi Costello’s evidence), 405.19–23.

Mr Costello agreed that he told police that Mr Cross was in the tent for about five minutes before Mr Costello left to have a shower in the shower block across the road from the tent.[162] He was there for about five minutes before returning to the tent.[163] By this time, Ms Pante and Mr Hollonds had arrived with another man with a rattail haircut whom Mr Costello had never met (this man is agreed to be Jake Fry).[164] They were congregating around Mr Hollonds’ car parked approximately 20 metres from the tent on the opposite side of the road.[165] Mr Cross was with them. Mr Costello said he had no part in their conversation,[166] and did not acknowledge them on his way to the tent.[167] He agreed that nobody appeared upset, there was no arguing, and he did not observe any clothing being passed around or examined.[168]
[162]MFI P11 (Transcript of Brodi Costello’s evidence), 184.19–24.
[163]MFI P11 (Transcript of Brodi Costello’s evidence), 184.27–185.03.
[164]MFI P11 (Transcript of Brodi Costello’s evidence), 105.28–105.01; 184.04–21.
[165]MFI P11 (Transcript of Brodi Costello’s evidence), 106.09–24.
[166]MFI P11 (Transcript of Brodi Costello’s evidence), 185.25–27.
[167]MFI P11 (Transcript of Brodi Costello’s evidence), 205.26–27.
[168]MFI P11 (Transcript of Brodi Costello’s evidence), 207.09–12.

Mr Costello said that when he re-entered the tent, only Ms Menzies was present. He got dressed while she was in the tent.[169] Mr Costello agreed that he told police that ‘a couple of minutes later’[170] Mr Cross, Ms Pante and Mr Fry entered the tent and had a five minute conversation.[171] It was put to Mr Costello that: Mr Fry asked Mr Cross about obtaining a gun to rob a person named Harry Dickinson, who was Mr Costello’s friend; Mr Costello said ‘I don’t care, as long as I get something out of it’; and Mr Cross said ‘Nah, no way, you can’t rob your mates’.[172] Mr Costello did not recall any of this conversation.[173] He said that he was not interested in the conversation between Mr Cross and Mr Fry,[174] and was not listening; however, he agreed that nobody appeared upset.[175] He agreed that the 5 x 5 metre tent was a ‘confined space’ with five people in it, and that everyone was ‘really in each other’s space’.[176] Mr Costello also said that Mr Dickinson was an acquaintance, not a friend.[177] Mr Costello denied seeing Mr Cross place a gun on the bed when Mr Cross entered the tent.[178]
[169]MFI P11 (Transcript of Brodi Costello’s evidence), 106.25–29.
[170]MFI P11 (Transcript of Brodi Costello’s evidence), 186.08–13.
[171]MFI P11 (Transcript of Brodi Costello’s evidence), 186.21–29; 210.11–14.
[172]MFI P11 (Transcript of Brodi Costello’s evidence), 406.20–407.06.
[173]MFI P11 (Transcript of Brodi Costello’s evidence), 212.05–12, 26–28.
[174]MFI P11 (Transcript of Brodi Costello’s evidence), 407.15–19.
[175]MFI P11 (Transcript of Brodi Costello’s evidence), 212.16.
[176]MFI P11 (Transcript of Brodi Costello’s evidence), 212.21–25.
[177]MFI P11 (Transcript of Brodi Costello’s evidence), 406.20–21.
[178]MFI P11 (Transcript of Brodi Costello’s evidence), 407.20–22.

Mr Cross, Ms Pante and Mr Fry then left the tent, after which time Mr Costello received his call from Centrelink. Ms Menzies was present. Mr Costello agreed that, in his interview with police, he said:

While they are outside I received a phone call from a bloke from Centrelink … After about five minutes Nick and Maddie came back into the tent. I was on the phone but after a few minutes I noticed that Nick and Maddie had started arguing.[179]

[179]MFI P11 (Transcript of Brodi Costello’s evidence), 153.08–14. See also 154.11–12; 161.06–18; 186.28–29.

At one stage during his evidence, Mr Costello said that the next thing to happen after he got dressed (with Ms Menzies in the tent), was that he received the Centrelink call and while he was on the phone Mr Cross and Ms Pante entered the tent.[180] In other words, at one stage he gave evidence that did not include Mr Fry entering or exiting the tent. At another stage, Mr Costello said that he was on the phone while Mr Fry was still in the tent.[181] However, he later said he was mistaken after being read the above passage from his interview with police.[182] Mr Costello said he was sitting on the bottom right hand corner of the bed (viewed from the end of the bed) while Mr Cross and Ms Pante were arguing ‘back-and-forth and sometimes both at once’[183] and ‘making a bit of noise’,[184] and ‘interrupting’ his call.[185] Ms Menzies was sitting on the bottom left hand corner of the bed. Mr Costello said:

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 … Over, say, a minute or two.[186]

[180]MFI P11 (Transcript of Brodi Costello’s evidence), 106.27–107.07.

[181]MFI P11 (Transcript of Brodi Costello’s evidence), 207.13–210.03.

[182]MFI P11 (Transcript of Brodi Costello’s evidence), 210.15–211.12.

[183]MFI P11 (Transcript of Brodi Costello’s evidence), 107.02; 154.13–14.

[184]MFI P11 (Transcript of Brodi Costello’s evidence), 107.03.

[185]MFI P11 (Transcript of Brodi Costello’s evidence), 154.02–03.

[186]MFI P11 (Transcript of Brodi Costello’s evidence), 111.06–16. See also cross-examination in which Mr Costello agreed that he heard ‘raised’ voices (159.06–07) which ‘reached the sort of volumes where you had to tell them to shut up’ (157.31–158.01), the arguing goes on for a ‘few minutes’, enough for Mr Costello to tell them to be quiet three or four times (161.21–26), and that he’d told police that he was telling them [Mr Cross and Ms Pante] to be quiet in this argument but they kept ‘arcing up again’ (195.08–10), and the argument goes on ‘for a couple of minutes’ (154.11–12).

Mr Costello said he did not pay attention to what Ms Pante and Mr Cross were saying; they were arguing, but he did not consider it to be an angry discussion, and did not think it was going to escalate to what it did.[187] Mr Costello said that Ms Pante was moving around, ‘sorta a little bit erratically I s’pose, like, stomping around and moving her arm’.[188] He said that she was ‘pacing on the spot’ up until the time she was shot.[189] In cross-examination, Mr Costello agreed that there was a ‘build up before the shooting occurred … over a number of minutes … of some escalating argument …. [d]uring which the noise went up and down, before the shot was fired’.[190] Mr Costello agreed in cross-examination that he could not say what the argument was about,[191] even though he was sitting only one or two metres away[192] and their voices were raised.[193]
[187]MFI P11 (Transcript of Brodi Costello’s evidence), 111.22–26.
[188]MFI P11 (Transcript of Brodi Costello’s evidence), 111.27–30.
[189]MFI P11 (Transcript of Brodi Costello’s evidence), 495.07–12.
[190]MFI P11 (Transcript of Brodi Costello’s evidence), 162.14–20.
[191]MFI P11 (Transcript of Brodi Costello’s evidence), 158.27.31; 160.13–15, 21–31; 219.04–07.
[192]MFI P11 (Transcript of Brodi Costello’s evidence), 158.02–06.
[193]MFI P11 (Transcript of Brodi Costello’s evidence), 159.06–07.

Mr Costello could not see Mr Cross clearly until he turned around a little bit.[194] After Mr Costello asked them to be quiet for the last time, ‘[Mr Cross] just pulled a gun out of his pocket or his waistband and shot [Ms Pante]’ in the forehead.[195] Mr Costello agreed that this occurred ‘instantaneously’.[196] Mr Costello said that Ms Pante just ‘hit the deck. She hit the floor.’[197] In his interview with police, Mr Costello demonstrated what he meant, and said that Ms Pante:

… just sort of dropped backwards like that … like just how someone would just drop ‘cause there’s nothing to her. Like, there’s nothing … holding her up. She just dropped.[198]

[194]MFI P11 (Transcript of Brodi Costello’s evidence), 111.31–112.02.

[195]MFI P11 (Transcript of Brodi Costello’s evidence), 112.05–08.

[196]MFI P11 (Transcript of Brodi Costello’s evidence), 218.29–30.

[197]MFI P11 (Transcript of Brodi Costello’s evidence), 112.18–19.

[198]MFI P11 (Transcript of Brodi Costello’s evidence), 193.14–18. See also 199.18–19.

In cross-examination, Mr Costello agreed that he told police that ‘I think [Mr Cross] had the gun in his right hand’.[199] Mr Costello denied that he reacted angrily to Ms Pante offering to perform oral sex on Mr Cross in exchange for drugs for Mr Costello, or that Ms Pante insulted him with a homophobic slur.[200] He denied shooting Ms Pante.[201]
[199]MFI P11 (Transcript of Brodi Costello’s evidence), 191.21–22.
[200]MFI P11 (Transcript of Brodi Costello’s evidence), 409.31–410.07.
[201]MFI P11 (Transcript of Brodi Costello’s evidence), 410.8–13.

Mr Costello said that at the time of the shooting Mr Cross and Ms Pante were standing,[202] and that Mr Cross was facing Ms Pante.[203] In cross-examination he agreed that Ms Pante was ‘standing upright and facing [Mr Cross] when she was shot by him’.[204] She was in front of the door to the tent and Mr Cross was to her left.[205] The two were between one and two metres apart.[206] He told police that, using imperial measurement, Mr Cross and Ms Pante were ‘three foot, two and a half foot’ apart, and agreed with this estimate when it was put to him in cross-examination.[207] The shot was ‘pretty much point blank’ after Mr Cross stretched out his arm, being no more than 30 centimetres.[208] At one point during cross-examination, Mr Costello agreed with the proposition that Ms Pante ‘was looking at [Mr] Cross straight ahead when the gun was fired’.[209]
[202]MFI P11 (Transcript of Brodi Costello’s evidence), 109.18–22; Exhibit P3 (Jury book), tab 6 (Costello sketches), sketch 3.
[203]MFI P11 (Transcript of Brodi Costello’s evidence), 493.17–20.
[204]MFI P11 (Transcript of Brodi Costello’s evidence), 392.22–24. Mr Costello also agreed that they were ‘facing one another’ (150.23–26), ‘standing facing one another’ (189.08–28), Ms Pante was ‘facing’ Mr Cross (192.08–12), ‘standing up straight’ (192.25–27), and they were ‘standing and facing one another’ (392.17–21). See also Exhibit P3 (Jury book), tab 6 (Costello sketches), sketch 3.
[205]MFI P11 (Transcript of Brodi Costello’s evidence), 493.17–20.
[206]MFI P11 (Transcript of Brodi Costello’s evidence), 190.24–25.
[207]MFI P11 (Transcript of Brodi Costello’s evidence), 198.06–18.
[208]MFI P11 (Transcript of Brodi Costello’s evidence), 199.11–13.
[209]MFI P11 (Transcript of Brodi Costello’s evidence), 392.25–26.

Mr Costello said that, while he did not have both eyes on Mr Cross at the time of the shooting, he could see him in his peripheral vision and could ‘definitely see what happened’.[210] In his police interview, Mr Costello made a demonstration of the shooting, indicating that Mr Cross’ right arm was completely outstretched.[211] Mr Costello gave a similar demonstration in the witness box.[212] He observed Mr Cross ‘at the furthest spot back from me [sic] peripheral vision’.[213] When asked if he was able to give a ‘geometrically precise angle’ of Mr Cross’ arm and/or the firearm, he said, ‘Yeah, I think so’.[214]
[210]MFI P11 (Transcript of Brodi Costello’s evidence), 496.18–27.
[211]MFI P11 (Transcript of Brodi Costello’s evidence), 497.01–10.
[212]MFI P11 (Transcript of Brodi Costello’s evidence), 112.09–11.
[213]MFI P11 (Transcript of Brodi Costello’s evidence), 497.02–03.
[214]MFI P11 (Transcript of Brodi Costello’s evidence), 497.08–10.

Importantly, it is not necessary for me to determine which of any two apparently irreconcilable aspects of Mr Cross’ story is true, or even more likely. It is sufficient that I have identified a significant number of these problems which, in aggregate, cast serious doubt on Mr Cross’ credibility, including on the critical question of whether he saw Mr Costello shoot Ms Pante.

In my view, the following aspects of Mr Cross’ account exist in significant tension with one another:

(a)Mr Cross: had ‘compassion’ for Mr Costello’s situation and ‘looked out’ for him; assisted Mr Costello to retrieve his belongings after they were stolen at significant personal risk; assisted Mr Costello to conceal a homicide that Mr Costello had committed (by driving him away from the scene, paying for another night at the campsite and a padlock for the tent, refusing to abandon Mr Costello despite Ms Menzies’ suggestions, and swapping Mr Costello into a car unconnected with the homicide while Mr Cross disposed of the implicated vehicle and gun); and talked Mr Costello out of killing himself and yet Mr Cross:

(ix)sought to sell the Hyundai i30 to Mr Costello despite its connection with a home invasion, and thereby risked incriminating Mr Costello in that home invasion;

(x) engaged in oral sex with Ms Pante behind Mr Costello’s back and told her to lie about it;

(xi)proposed further oral sex with Ms Pante in the early hours of 3 December; and

(xii) treated Mr Costello with ‘tough love’ in the minutes before the shooting by denying him drugs and simultaneously smoking ice in front of him;

(b)Mr Cross told Ms Pante to lie about performing oral sex on him at the Kardinia Motel and yet made a comment to Ms Pante in front of Mr Costello which made it ‘obvious’ that she was offering oral sex;
(c)Mr Cross said that he would not supply a gun to ‘rob a mate’s mate’ (describing it as a ‘shit go’) and yet he sold the gun used in Ms Pante’s homicide to a friend of a friend (and thereby risked implicating that ‘friend’s friend’);
(d)Mr Cross said that he would not supply a gun to ‘rob a mate’s mate’ (describing it as a ‘shit go’) and yet was willing to use Mr Turner’s bank card to steal a ‘fair bit of money’;
(e)Mr Cross said that he would not supply a gun to ‘rob a mate’s mate’ (describing it as a ‘shit go’) and yet was prepared to lie about the Hyundai i30’s connection with a home invasion when offering it to potential buyers (including his own friends);
(f)Mr Cross said he would not park the stolen Hyundai i30 out the front of Mr Drew’s father’s home because his father is ‘a legitimate person’ who might get ‘pissed off’, and it was a ‘shit go’ to do that to a mate and yet Mr Cross was prepared to lie to Mr Drew about the car’s connection with a home invasion when attempting to sell it to him;
(g)Mr Cross sold the Suzuki Swift to Mr Foster without disclosing that it could be linked to a homicide at the Showgrounds because ‘I don’t think anyone would have bought it if they knew that’ and yet only 24 hours later, upon hearing about the tent fire, sought to retrieve the car in order to protect an unsuspecting buyer;
(h)Mr Cross was fearful of Mr Turner’s and his friends’ reprisals following his and Ms Robinson’s theft of money from Mr Turner in 2017. Those men were ‘out to get’ Mr Cross, who was in ‘constant danger’ and yet Mr Cross allowed his only gun at the time to remain in the possession of Mr Duffy and then Mr Evans between October 2017 and October or November 2018;
(i)Mr Cross was told by Mr Kennett in October or November 2018 that Mr Harmer had planned to shoot Mr Cross. Around this time, Mr Cross retrieved the shorter .22 from Mr Evans and Ms Purdie, obtained the longer .22, and a shotgun, albeit without ammunition, and was looking for multi-shot weapons to protect himself and yet Mr Cross was prepared to conduct a drug sale on Sharp Street on 1 December without any of these firearms, which he instead left in the motel room or his car;
(j)Mr Cross faced a constant threat from Mr Turner and his associates and was ‘actively trying to find’ multi-shot weapons and yet his Facebook messages of 1 December on that topic do not convey any particular urgency about the acquisition of such a weapon;
(k)on the morning of 3 December, Mr Cross loaded the longer .22 in response to a warning from Ms Davies that Mr Harmer was on his way to their location in Corio and yet only an hour later, Mr Cross was prepared to:
(i)loan or sell that gun to Mr Fry, a man he had never met before and who was in a dispute with another drug dealer, in response to an unprompted request from Ms Pante, a woman he had known for no more than a month; and
(ii)place the loaded gun on the bed without negotiating any loan or sale terms and in a position where Mr Fry ‘could have just picked [it] up and said thanks very much and walked out the door’;

(l)on the morning of 3 December, Mr Cross loaded the longer .22 in response to a warning from Ms Davies that Mr Harmer was on his way to their location in Corio and yet Mr Cross met Ms Davies in Corio again that evening to discuss selling the Hyundai i30;
(m)after Mr Costello brandished a gun at the Kardinia Motel, Mr Cross ‘took it off him, put it back in my bum bag, and then I actually wore the bum bag so he couldn’t get a hold of it again that night’ and yet two days later, Mr Cross left what he knew to be a loaded gun within reach of Mr Costello;
(n)Mr Cross said that the extent of Mr Costello’s response to being denied drugs was he ‘sorta scuffed his feet a bit’ and yet Mr Cross asserted that this denial contributed to Mr Costello angrily brandishing a gun not long after;
(o)immediately after Mr Costello shot Ms Pante he was in shock; he dropped the gun, his hands were over his face and the colour dropped out of him, then he took off out of the tent and, panicking, said, ‘We’ve got to pack everything up. We’ve got to get rid of everything right now’ and yet a maximum of 15 minutes later Mr Costello had the presence of mind to conduct a call with Centrelink lasting 4 minutes and 59 seconds during which he provided his ‘full name’ and ‘personal detail[s]’;
(p)Mr Costello had the presence of mind to conduct the Centrelink call and yet immediately after the call repeated his panicked suggestion to pack up the tent, together with the furniture and Ms Pante’s body into a Suzuki Swift, in broad daylight;
(q)Mr Costello had the presence of mind to suggest buying the padlock at a shop without security cameras in order to avoid detection and yet shortly afterwards, said, ‘Take me back there and give me the gun. I’m going to kill myself’;
(r)Mr Costello was ‘stressing about [Mr Cross] leaving and not coming back’ and going to the police with the gun and yet Mr Costello left on a train at the earliest possible opportunity; and
(s)Mr Cross ostensibly sought to dissociate himself from firearms of any kind by telling Ms Purdie to forget about a gun that was not used in Ms Pante’s shooting and yet he retained possession of that weapon, which was found with him in New South Wales.

In summary, there are multiple aspects of Mr Cross’ evidence which are difficult to reconcile with one another and which, in combination, lead me to doubt the truthfulness of his account of Ms Pante’s shooting. I am troubled not only by the sheer number of reconciliation problems, but also by the fact that so many of the apparently irreconcilable aspects of Mr Cross’ story seem directed at answering specific elements of the prosecution case. In particular:

(a) Mr Cross’ simultaneous concern and disregard for Mr Costello’s wellbeing (outlined in paragraph 548(a) above) seem directed at explaining, respectively: why Mr Cross assisted Mr Costello to conceal the homicide and why Mr Costello brandished the gun at Ms Pante;

(b) Mr Cross’ oscillating between an apparent expression of morality (it’s a ‘shit go’ to ‘rob a mate’s mate’) and obviously unethical behaviour (stealing from Mr Turner) seem directed at explaining, respectively: why a gun was left in the tent within reach of Mr Costello and what prompted Mr Cross to acquire multiple guns (to defend his assertion that the .22 found in his possession was not used to kill Ms Pante);

(c) Mr Cross’ simultaneous concern for the purchasers of cars (demonstrated by his attempt at retrieving the Suzuki Swift) and preparedness to mislead purchasers of cars (by repeatedly lying about the home invasion associated with the Hyundai i30) seem directed at explaining, respectively: why the Suzuki Swift was burnt so soon after he sold it and why he sent a message about ‘10yrs min’ (the fabricated home invasion being an integral part of that explanation);

(d) Mr Cross’ assertion that his life was in constant danger and simultaneously conducting a drug deal in Sharp Street without any of his weapons seem directed at explaining, respectively: why Mr Cross acquired multiple guns (to defend his assertion that the .22 found in his possession was not used to kill Ms Pante) and how Mr Costello came to dangerously brandish one of Mr Cross’ weapons (which ostensibly established that Mr Costello has a tendency to act in that way); and

(e) Mr Cross’ assertion that he required multiple weapons to defend himself and simultaneously offering one of his guns to Mr Fry, a person he had never met, seem directed at explaining, respectively: why Mr Cross acquired multiple guns (to defend his assertion that the .22 found in his possession was not used to kill Ms Pante) and why a gun was left in the tent within Mr Costello’s reach.

Mr Cross’ precision and certainty suggest a fabrication

Mr Cross delivered his evidence with precision and certainty. He was firm and unshakeable in his responses throughout evidence in chief, cross-examination and re-examination. Counsel for the prosecution did not impugn his evidence as unreliable, but rather alleged it was a recent invention designed to systematically meet the case against him.

Mr Cross’ account was comprehensive, and despite the passage of time and his own drug consumption before and immediately after the shooting, he was able to recall the minutiae of those days and events immediately before and after the shooting with confidence and without prompting. Mr Cross provided an answer to every piece of adverse evidence. When his unusual command of the details of particular memories was put to him in cross-examination, he explained that his ‘life pretty much stopped not long after’ Ms Pante’s death, and because of that, his memories were still fresh in his mind.

I accept that someone’s experiences, including seemingly immaterial details, might acquire a new significance in light of a traumatic event, such that they endure and cement themselves in that person’s memory. However, the sheer breadth of Mr Cross’ knowledge of matters traversed in his evidence, the precision of his evidence, and his unshakeable certainty are together so unlikely that it leads me to conclude that significant parts of his evidence are a fabrication. Again, I am troubled by the fact that many of the precise recollections seem directed at answering specific elements of the prosecution case.

In particular, Mr Cross firmly recalled:

(a)that Mr Hollonds’ car windows were up some time before the shooting, when Mr Cross had no particular reason to pay attention to that fact (the effect of this recollection is that the gunshot must have been sufficiently loud to be heard in a car with its windows up, which is apparently intended to impugn the plausibility of the gunshot occurring and not being heard by the Centrelink officer);
(b)the sound of Mr Hollonds’ brakes when his car arrived at the Showgrounds, when Mr Cross had no particular reason to pay attention to that fact. The combined evidence of Mr Hollonds, Mr Fry and Mr Costello also suggests that the car initially came to rest some distance from the tent, which further undermines the plausibility of Mr Cross’ recollection;
(c)the content of discussions with Ms Pante across four voice calls in the early hours of 3 December, including what was discussed on each specific call, notwithstanding that Mr Cross was simultaneously occupied with driving around Geelong and conducting drug transactions (these recollections seem directed at enhancing the plausibility of Ms Pante’s offering to perform oral sex in front of Mr Costello on 3 December, and refuting Mr Hollonds’ evidence that Mr Cross came to the Showgrounds to conduct a transaction with Ms Pante herself);
(d)the names of persons only peripherally involved in the events of December 2018, such as the people involved in buying and selling drugs, firearms, and stolen cars who Mr Cross often knew only through friends, or friends of friends; and
(e)that there was no mallet in the tent on the morning of 3 December, when Mr Cross had no particular reason to look out for such an object and no way of knowing whether it was simply out of view while he was in the tent (Mr Cross’ recollection is evidently intended to distance himself from the tent fire, given that a mallet is clearly visible in photographs of the burnt out tent).

In summary, I find that Mr Cross is not a witness of credit (and therefore reject his direct evidence that Mr Costello shot Ms Pante) because: many aspects of his account are inherently implausible; many aspects of his account are difficult to reconcile with other aspects; and the precision and certainty of his account suggest a dishonest fabrication. The only reasonable explanation for the implausibilities, reconciliation difficulties and precise recollections, when considered in aggregate, is that Mr Cross has moulded a version of events to meet the case against him.

Mr Cross’ conduct after the shooting

I turn now to evidence of Mr Cross’ conduct after Ms Pante’s shooting.

By further amended notice of evidence of incriminating conduct dated 31 March 2021, the prosecution identified 13 items of evidence on which it intended to rely as evidence of incriminating conduct. I have considered those items together with the parties’ relevant submissions.

The defence did not specifically assert that, on the basis of the evidence as a whole, any of the 13 items were not reasonably capable of being viewed by me as evidence of incriminating conduct. As such, under s 20(1)(b) of the Jury Directions Act I was satisfied that it was open for me, as the fact finder, to consider whether any or all of the 13 items amounted to incriminating conduct.

The law provides that I may only treat some or all of the 13 items as evidence of incriminating conduct by Mr Cross if I am satisfied that:[1176]

(a)the relevant conduct occurred; and
(b)the only reasonable explanation for the conduct is that Mr Cross believed he committed the crime of murder or an element of the crime of murder or negated a defence.

[1176]Jury Directions Act 2015 (Vic) s 21(1)(a).

Further, even if I conclude that Mr Cross believed that he had committed the crime of murder or an element of the crime of murder I must still decide, on the basis of the evidence as a whole, whether the prosecution has proved Mr Cross’ guilt beyond reasonable doubt.[1177] It is important to note that:
[1177]See Jury Directions Act 2015 (Vic) ss 4A, 21(1)(b).

(a) there are all sorts of reasons why a person might behave in a way that makes them look guilty;

(b) even if I find that Mr Cross engaged in the conduct, he may have done so even though he is not guilty of the offence charged; and

(c) even if I think that the conduct makes Mr Cross look guilty, that does not necessarily mean that he is guilty.[1178]

[1178]See Jury Directions Act 2015 (Vic) ss 4A, 22.

Mr Cross did not dispute the occurrence of many of the 13 items of conduct. However, he denied: locking the tent and retaining the key after Mr Costello collected his belongings; being involved in the burning of the tent; being involved in the burning of the Suzuki Swift; and being in possession of the weapon used to kill Ms Pante when apprehended in New South Wales. Therefore, before considering possible explanations for the evidence, I must determine whether Mr Cross engaged in these four items of conduct.

I will begin by considering Mr Cross’ alleged retention of the key to the padlock and involvement in the tent fire. Mr Xydias concluded that the fire started inside the tent on a corner of the mattress. This finding, together with the fact that the tent was locked during the course of 3 December (as observed by Mr Hollonds and Mr Fry) strongly suggests that the person who lit the fire had the key to the padlock. Furthermore, the photographs from the crime scene indicate that the padlock attached to the pull tabs of the tent at the time of the fire had yellow colouring, which accords with Mr Costello’s description of the padlock purchased at the two dollar shop and is also consistent with Mr Costello’s and Mr Cross’ evidence that the new padlock was used to secure the tent after the shooting. I accept Mr Costello’s evidence that the padlock provided by Mr Cashion was not used to secure the tent after he let Mr Cross into the tent on the morning of 3 December, which accords with photographs from the crime scene indicating that a padlock without yellow markings was located on the top of the fridge.

Only three people were present when the tent was locked with the padlock purchased by Mr Costello: Mr Costello, Mr Cross and Ms Menzies. Mr Cross’ evidence is that he was with Ms Menzies for virtually the entire time between the shooting and their arrest in New South Wales (except when Ms Menzies dropped Mr Costello to the train station on the morning of 3 December). Therefore, after the tent was locked, up until the time of the fire, custody of the key must have been with Mr Costello (or a person given the key by Mr Costello) or Mr Cross and Ms Menzies acting in concert (or a person given the key by Mr Cross or Ms Menzies). It follows that either Mr Costello or Mr Cross/Ms Menzies was responsible for lighting the fire (whether personally, or by giving the key to another person).

Mr Hollonds’ 000 call was made at about 1:36am on the morning of 4 December. Mr Hollonds concluded that the fire had been burning for some time due to its poor state. The Geelong CFA attended at about 1:47am, with Senior Station Officer Hovell observing a flame height of 300mm to 500mm. I am satisfied that Mr Hovell observed a stage of the fire prior to the final smouldering phase (which Mr Xydias said would include only glowing embers and flickering flames). Mr Xydias said that the fire would have burned for ‘at least’ 30 minutes and accepted that it could have smouldered for up to 15 or 20 minutes prior to taking off. An initial smouldering phase of 20 minutes and a burning phase of 40 minutes prior to the CFA’s attendance would suggest that the fire was lit at approximately 12:47am. Therefore, I am comfortable in concluding that the fire was certainly lit after midnight, and probably no earlier than 12:30am on 4 December.

As explained earlier in these reasons at paragraphs 466 to 490, I have rejected as a reasonable possibility that Mr Costello returned to the Showgrounds during the afternoon of 3 December and accept his evidence and the evidence of Ms Walton that he was in bed at Ms Walton’s house in Colac at 12:30am on 4 December. This means that Mr Costello could not have personally lit the tent fire. Furthermore, the uncontested evidence that Mr Costello’s mobile phone was turned off throughout 3 December (after he turned it off in Mr Cross’ presence) means that Mr Costello’s arranging for someone else to light the fire on his behalf is very unlikely. It therefore follows that Mr Cross and/or Ms Menzies retained possession of the key and that Mr Cross was responsible for, or involved in, the lighting of the tent fire. Mr Cross’ retention of the key is also consistent with his ‘taking control’ of the situation immediately after the shooting, which is a feature of both Mr Costello’s and Mr Cross’ accounts.

While it is unnecessary for me to conclude whether Mr Cross personally lit the fire (as opposed to instructing someone else to do so), I consider that:

(a)cessation of activity on a mobile phone connected with Mr Cross’ identity at approximately 8:45pm on 3 December;
(b)contemporaneous commencement of activity on a mobile phone in Mr Cross’ possession but unconnected with his identity;
(c)cessation of activity on the mobile phone unconnected with his identity at 3:27am; and
(d)resumption of activity on the first mobile phone at approximately 8:56am on 4 December,

is consistent with Mr Cross’ seeking to hide his physical movements during that time and therefore consistent with his personally lighting the tent fire at approximately 12:30am on 4 December. This conclusion is reaffirmed by Mr Cross’ clear awareness that mobile phone activity can be used to identify the location of a mobile phone (as established by the uncontested evidence that Mr Cross told Mr Costello to turn his mobile phone off after the shooting because it could be tracked).

I also reject the defence submission that Mr Cross’ use of the mobile phone connected with his identity during large parts of the days after Ms Pante’s shooting demonstrates that he was not attempting to hide. In my view, alternating between use of a mobile phone that is connected with a person’s identity and one that is not is more suspicious and calculating behaviour than simply turning off all communication devices.

I turn now to the burning of the Suzuki Swift.

It is an agreed fact that police found a grey Suzuki Swift bearing registration plate 1DC4YQ burnt out on 4 December. Ms Purdie and Mr Evans gave evidence that they saw Mr Cross driving a Suzuki Swift on 2 December, and Mr Evans gave uncontested evidence that Mr Cross pointed out that the letters and numbers on the registration plate could be made to stand for the words, ‘I don’t care for your questioning’. This clearly aligns with the number plate found with the burnt-out Suzuki Swift. On this basis, I am satisfied that the Suzuki Swift driven by Mr Cross to the Showgrounds on 3 December is the car found burnt out on 4 December.

While I accept Mr Cross’ evidence that it is not unusual for stolen cars to be burned after they have been used, in my view, it is highly unlikely that the burning of the Suzuki Swift was coincidental in this case. That would require accepting that a tent containing the victim of a homicide and a car used to flee the scene of that homicide were burnt for completely unrelated reasons within the space of 24 hours. Even if I accepted Mr Cross’ evidence that he sold and then attempted to recover the Suzuki Swift (which I do not), I would still need to accept as a possibility that the fire was purely coincidental, or alternatively arranged by Mr Foster (but not directed by Mr Cross), in response to Mr Cross’ instruction that the car needed to ‘leave Geelong straight away’. Neither explanation is remotely likely.

Accordingly, I am satisfied to a high degree of probability that the burning of the Suzuki Swift was connected to the burning of the tent. Given my conclusion that Mr Cross was involved in burning the tent, and on no account did Mr Costello have control of the Suzuki Swift after Ms Pante’s shooting, I am satisfied that Mr Cross was involved in burning the Suzuki Swift.

Turning finally to the firearm found in Mr Cross’ possession, I am unable to reach a firm conclusion about whether that was the firearm used to kill Ms Pante. While I consider that Mr Cross’ possessing two near-identical sawn off .22 rifles is unlikely (particularly given his elaborate and implausible backstory to explain it), I cannot dismiss it as fanciful given the relative prevalence of those weapons as outlined by LSC Griffiths.

It is now necessary to consider whether the only reasonable explanation of some or all of the 13 items of conduct relied upon by the prosecution is that Mr Cross believed he committed the crime of murder or an element of the crime of murder or negated a defence.

In summary, I am not satisfied that the only reasonable explanation for the following conduct is Mr Cross’ belief of guilt:

(a)telling Mr Costello to get into the Suzuki Swift after the shooting;
(b)providing Mr Costello with money to pay for a further night at the campsite and to purchase a padlock after Ms Pante’s death;
(c)reattending the tent while Ms Pante’s body was still inside and being present when Mr Costello collected his belongings;
(d)driving in the Hyundai i30, which was unconnected to the Showgrounds, after the shooting; and
(e)viewing the Bay FM 93.9 webpage in relation to an article titled ‘Police Await Tent Fire Autopsy Results’ on his phone.

In short, each of these items of conduct could reasonably be explained by Mr Cross’ account that he was assisting Mr Costello after Mr Costello killed Ms Pante.

However, I am not satisfied that the following conduct by Mr Cross can reasonably be explained in the same way:

(a)retaining the key to the padlock and being involved in burning the tent containing Ms Pante’s body;
(b)being involved in burning the Suzuki Swift;
(c)sending self-deleting Facebook messages to Ms Purdie to the effect of ‘you know nothing about the 22’, and ‘forget all about the Suzuki Swift’;
(d)sending text messages to Mr Drew saying he had ‘survived from the jacks’, ‘wasn’t going to go anywhere without them knowing the situation’ and ‘when they get me I’m doing 10yrs min’; and
(e)travelling to New South Wales two days after Ms Pante’s death.

Deliberately setting fire to a tent containing the body of the victim of a homicide is incredibly serious conduct which is difficult to explain other than by the perpetrator’s direct involvement in the underlying homicide. Setting fire to a car which was parked outside the tent at the time of the homicide is similarly difficult to explain other than by a desire to destroy evidence connected with the homicide. It might be argued that another explanation in this case is Mr Cross’ provision of assistance to Mr Costello (in Mr Cross’ scenario where Mr Costello is the perpetrator of the homicide). However, the evidence does not come close to establishing the degree of closeness or intimacy between Mr Cross and Mr Costello that would seem necessary to raise as a reasonable possibility that Mr Cross undertook such dramatic action on Mr Costello’s behalf. Further, Mr Cross said that he ceased providing assistance to Mr Costello after selling the Suzuki Swift and gun at a time when the car had not yet been burned.

Mr Cross’ own evidence that ‘I don’t burn cars, [n]ever have’, together with open admissions of criminal activity while driving stolen cars, is also consistent with the conclusion that his burning of a car in this case was atypical for him and therefore due to his commission of a particularly serious crime.

As outlined above at paragraphs 538 to 544, and 548(s), I reject Mr Cross’ explanation of his sending messages to Mr Drew and fleeing interstate as inherently implausible, and seriously doubt the veracity of his explanation of the messages sent to Ms Purdie. When the messages to Ms Purdie and Mr Drew, and Mr Cross’ fleeing to New South Wales, are considered together with Mr Cross’ involvement in the tent and car fires, my conclusion that such messages and explanations are implausible is inescapable. In my view, when considered in combination:

(a)the only reasonable explanation for the message ‘you know nothing about the 22’ is Mr Cross’ belief that he killed Ms Pante with a firearm (regardless of whether the weapon to which he refers was the actual .22 used or not);
(b)the only reasonable explanation of the message ‘forget all about the Suzuki Swift’ is Mr Cross’ belief that he killed Ms Pante and that the car could link him to the homicide;
(c)the only reasonable explanation of the messages to Mr Drew saying ‘when they get me I’m doing 10yrs min’ is Mr Cross’ belief that he killed Ms Pante and would be serving significant prison time for doing so;
(d)the only reasonable explanation of the messages saying ‘survived the jacks’ and ‘wasn’t going to go anywhere without them knowing the situation’ is that Mr Cross knew it would be difficult to move freely without the police apprehending him for killing Ms Pante (which he believed he had done); and
(e)the only reasonable explanation of Mr Cross’ travelling to New South Wales two days after Ms Pante’s death is to avoid apprehension for killing Ms Pante (which he believed he had done). The seriousness of Mr Cross’ crime is also suggested by the fact that one of his travel companions, Ms Menzies (who was present when Ms Pante was killed), changed her hair colour on several occasions in the days after the shooting. The most likely explanation for this is that it was intended to avoid their apprehension.

Conclusion on causation

Having regard to all of the evidence I am satisfied beyond reasonable doubt that Mr Cross shot Ms Pante and caused her death.

Even if I was not satisfied that Mr Cross’ conduct after the shooting constituted incriminating conduct in the legal sense, I would still be satisfied beyond reasonable doubt, on the balance of the evidence, that Mr Cross shot Ms Pante and caused her death.

Remaining elements

Having determined that the evidence establishes beyond reasonable doubt that Mr Cross caused Ms Pante’s death, it now falls for me to consider whether he did so:

(a) consciously, voluntarily and deliberately;

(b) with a murderous intention; and

(c) without lawful justification or excuse.

The defence did not submit that, should I conclude that Mr Cross shot Ms Pante, there is nevertheless reason to doubt that he did so consciously, voluntarily and deliberately or without lawful justification or excuse. Nevertheless, for the avoidance of doubt, I am satisfied that those elements of the offence have been proved beyond reasonable doubt on the basis of Mr Costello’s account of the shooting, which I accept.

Therefore, the only remaining question is whether I am satisfied beyond reasonable doubt that Mr Cross had a murderous intention when he shot Ms Pante.

Prosecution submissions

The prosecution submits that, on the basis Mr Cross deliberately pulled the trigger of a loaded gun pointed at Ms Pante’s head, his intention must have been to kill her or cause her really serious injury. His use of an inherently deadly weapon and the location of the gunshot wound near the centre of Ms Pante’s forehead are ‘eloquent of an intention to kill or cause someone really serious injury.’[1179]
[1179]T989.09–10.

The prosecution submits that the shooting did not occur unexpectedly or out of the blue. Here, the prosecution points to Mr Hollonds’ and Mr Fry’s evidence of an argument inside the tent, and Mr Costello’s evidence that the argument involved Mr Cross and Ms Pante. The prosecution also notes the evidence of Mr Hollonds and Mr Fry that Ms Pante was angry when she left the car and entered the tent for the last time. Even though there is no evidence about the subject of the argument, the Court can be satisfied that it was an intense argument. The prosecution submits that it may not have occurred to Mr Cross to shoot Ms Pante any more than two seconds before he did, and that he may have bitterly regretted it two seconds later. However, because Mr Cross deliberately pulled the trigger, his intention must have been to kill Ms Pante or cause her really serious injury at that moment.

Defence submissions

The defence’s primary position is that Mr Cross did not shoot Ms Pante. As such, the defence made only brief submissions on the issue of intention.

The defence submits that even if the Court concludes that Mr Cross shot Ms Pante, it should not find that Mr Cross had a murderous intention. According to the defence, the absence of a motive for Mr Cross to kill Ms Pante, his apology to Mr Costello immediately after the shooting (on Mr Costello’s account), the chaos and worry in the tent, and Mr Cross’ text message about doing ‘10yrs min’ are all inconsistent with a murderous intention.[1180]
[1180]T1145.15–1146.04.

Analysis

Intention is, of course, always a matter of inference. It may be inferred from things said and done by the accused, considered in the circumstances as a whole. An intention need not be of a long duration. It need not be accompanied by any significant planning or premeditation. It may be formed spontaneously or on the spur of the moment.

There is no evidence in this case to establish a motive, and the prosecution concedes that it cannot prove that Mr Cross had a motive to kill Ms Pante. However, as the High Court said in De Gruchy v The Queen:[1181]

Motive is neither necessary nor sufficient: Because motive, as such, is not an ingredient of a legal offence (such as the murders with which the appellant was charged), it is not necessary, as a matter of law, for the prosecution to prove that an accused had a particular motive, still less one to commit the offence in question.[1182]

[1181](2002) 211 CLR 85.

[1182]De Gruchy v The Queen (2002) 211 CLR 85, 99 [53], emphasis in original.

Absence of motive may be a valuable factor and may present a compelling line of argument for an accused, but such absence is not a ‘missing link’ in the chain of evidence of guilt, any more than its presence is a necessary link in that chain. On the available evidence, I cannot determine the question of motive one way or the other – that is, I am no surer that Mr Cross did not have a motive to kill Ms Pante than I am that he did. There is simply not enough evidence on this point. Accordingly, it is a neutral factor that assists neither the prosecution nor the defence.

It is uncontroversial that Ms Pante sustained a gunshot injury to the right side of her forehead which caused her death. For the reasons set out in my analysis of causation, I am satisfied that Ms Pante’s shooting occurred in substantially the manner described by Mr Costello – specifically:

(a)Ms Pante was directly in front of Mr Cross when Mr Cross shot her;
(b)Mr Cross and Ms Pante were arguing up until the moment Mr Cross shot Ms Pante;
(c)immediately before the shooting, Mr Cross produced a gun from his person and pointed it at Ms Pante’s forehead, with his arm outstretched and approximately parallel to the ground; and
(d)Mr Cross shot Ms Pante at ‘point blank’ range.

Further, Mr Cross’ uncontested evidence is that he loaded the gun approximately an hour before arriving at the Showgrounds and had no doubt that it was loaded when he entered the tent. His self-described reaction to Mr Costello allegedly brandishing a gun at the Kardinia Motel demonstrates that Mr Cross knew the potential consequences of pointing this class of gun at someone, cocking it, and pulling the trigger (if that was not already obvious).

While the evidence does not illuminate the subject of the argument between Mr Cross and Ms Pante, there is overwhelming evidence that an argument occurred in the moments before the shooting.

The inexorable conclusion in these circumstances is that, at the time Mr Cross shot Ms Pante, he had a murderous intention. Firing a gun known to be loaded at or near the middle of a person’s forehead at point blank range is highly purposive conduct which, in the context of an ongoing verbal altercation between the protagonists, can admit no other explanation. There is no evidence of accidental discharge in this case.

I am therefore satisfied beyond reasonable doubt that Mr Cross had a murderous intention when he shot Ms Pante.

Conclusion

For the reasons set out above, I am satisfied that each of the elements of the charge of murder contrary to the common law has been established beyond reasonable doubt.

Verdict

I direct that in relation to the indictment numbered J13183983 on charge 1 – that Nicholas James Cross at Breakwater in Victoria on 3 December 2018 murdered Maddison Jane Pante – a verdict of guilty be entered.

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[2022] VSC 314

10 June 2022