Director of Public Prosecutions v SA

[2024] VSC 28

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2022 0258
S ECR 2022 0261
S ECR 2022 0262

S ECR 2022 0264

DIRECTOR OF PUBLIC PROSECUTIONS	Prosecution
v
SA	Accused
DM
QM
SY

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JUDGE:	Incerti J
WHERE HELD:	Melbourne
DATE OF HEARING:	16–17, 20–24, 27–30 November, 1, 4–8, 11, 13–15 December 2023
DATE OF JUDGMENT:	9 February 2024
CASE MAY BE CITED AS:	DPP v SA & Ors
MEDIUM NEUTRAL CITATION:	[2024] VSC 28

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CRIMINAL LAW – Trial by judge alone – Murder – Complicity – Four accused – Accused all children at time of offending – Deceased died as a result of multiple stab wounds during group attack – CCTV of attack available – Identification – Agreement, arrangement or understanding – Intention – Crimes Act 1958 (Vic) ss 323, 324.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms K Churchill with Mr J Manning	Office of Public Prosecutions
For SA	Mr A Patton with Mr C Tom	KPT Legal Pty Ltd
For DM	Mr D Sala	Emma Turnbull Lawyers
For QM	Mr M Page with Ms M Greener	Ajak Wolan & Associates
For SY	Ms A Cannon	Chester Metcalfe & Co

TABLE OF CONTENTS

Summary.............................................................................................................................................. 1

Introduction........................................................................................................................................ 2

Judge alone trial principles.............................................................................................................. 4

Elements of murder by complicity................................................................................................. 9

Evidence............................................................................................................................................. 10

The deceased..................................................................................................................................... 18

The accused and their associates................................................................................................... 18

The other alleged co-offenders: JA, PM, AM and MM.......................................................... 19

Other associates........................................................................................................................... 19

Tensions between the 9ers and H-Town................................................................................. 20

Movements of the accused on 12 March...................................................................................... 21

ZM’s messages on 12 March.......................................................................................................... 26

The party in Reservoir..................................................................................................................... 28

HP’s recordings at the party and phone calls to QM’s phone.............................................. 29

Incident at the party.................................................................................................................... 35

Police attendance at the party................................................................................................... 36

The accused’s alleged movements in the early hours of 13 March........................................ 37

The cell-tower evidence.................................................................................................................. 41

The hatch’s arrival in the Reservoir area..................................................................................... 41

The attack on the deceased............................................................................................................. 43

Interaction with HP and GD.......................................................................................................... 49

The accused’s alleged movements after the attack on the deceased...................................... 54

Discovery of the deceased.............................................................................................................. 55

Evidence of nearby residents......................................................................................................... 57

Ms Borlase.................................................................................................................................... 58

Ms Fletcher................................................................................................................................... 59

Ms Bacash..................................................................................................................................... 60

Evidence of ZM’s activities on 13 March..................................................................................... 61

Other phone data from 13 March.................................................................................................. 63

Evidence of DM and QM returning to their homes on 13 March........................................... 64

Alleged conversation with TH on 14 March............................................................................... 64

The burning of the Mazda.............................................................................................................. 65

Other phone data from 14 March.................................................................................................. 67

SA’s phone data........................................................................................................................... 67

QM’s phone data......................................................................................................................... 68

Video on HP’s phone of QM’s Instagram video.................................................................... 69

Arrests................................................................................................................................................. 69

QM’s arrest................................................................................................................................... 69

DM’s arrest................................................................................................................................... 70

SY’s arrest..................................................................................................................................... 70

Arunta calls between QM and SA............................................................................................ 71

SA’s arrest..................................................................................................................................... 71

Forensic evidence............................................................................................................................. 71

Autopsy........................................................................................................................................ 71

DNA evidence............................................................................................................................. 73

Fingerprints.................................................................................................................................. 76

Identification.................................................................................................................................... 77

The CCTV footage........................................................................................................................... 78

Clothing and apparent likeness between SA and male 8...................................................... 81

Clothing and apparent likeness between QM and male 2.................................................... 87

Clothing and apparent likeness between DM and male 3.................................................... 93

Alternative suspects.................................................................................................................... 95

Other evidence relevant to the identification of SA, QM and DM........................................ 96

The telecommunications and phone evidence........................................................................ 96

The evidence and recordings of HP....................................................................................... 106

The evidence of TH and his alleged recognition of SA....................................................... 114

HP’s recordings................................................................................................................ 115

GD’s evidence.................................................................................................................. 115

Taylor’s evidence and BWC footage from 13 March.................................................. 116

Healy’s Evidence............................................................................................................. 118

Ferguson and Ryan’s evidence...................................................................................... 119

TH’s evidence................................................................................................................... 122

Analysis of TH’s evidence.............................................................................................. 123

DM’s alleged admission to his mother AG........................................................................... 128

Herbert’s evidence........................................................................................................... 128

AG’s evidence.................................................................................................................. 130

Analysis of AG’s evidence............................................................................................. 137

DNA evidence — DM.............................................................................................................. 142

The second car theory.................................................................................................................... 142

Post-offence conduct..................................................................................................................... 151

SA’s conduct after the attack................................................................................................... 154

Internet Searches of news and social media with respect to the incident............... 155

Setting up an AusPassport account and related searches and activity................... 155

The creation of rap lyrics................................................................................................ 156

Lies in record of interview............................................................................................. 161

QM’s conduct after the attack................................................................................................. 162

Disabling 'Find My iPhone', deleting Snapchat account and activating new SIM 163

Accessing articles about the offending and searching for ‘Coburg news’.............. 165

Rap lyrics modified on 14 March in a note on QM’s phone...................................... 165

Inquiries and searches in relation to passports and overseas travel........................ 167

Photograph of QM with words ‘killers that have never been caught’ overlaid..... 168

Creating and later modifying a note in his iPhone containing rap lyrics............... 169

DM’s conduct after the attack................................................................................................. 172

Conclusion on identification....................................................................................................... 175

Murder by complicity.................................................................................................................... 175

Agreement, arrangement or understanding.............................................................................. 176

Agreement, arrangement or understanding — SY.............................................................. 179

SY’s submissions.............................................................................................................. 179

SY analysis........................................................................................................................ 181

Agreement, arrangement or understanding — DM............................................................ 186

DM’s submissions............................................................................................................ 186

DM analysis...................................................................................................................... 187

Conclusion on agreement, arrangement or understanding................................................ 190

Intention.......................................................................................................................................... 190

Intention — SY........................................................................................................................... 191

Intention — DM......................................................................................................................... 193

Conclusion on intention........................................................................................................... 194

Commission of murder................................................................................................................. 194

Conclusion....................................................................................................................................... 195

Verdict.............................................................................................................................................. 195

HER HONOUR:

Summary

1. The four accused, SA, DM, QM and SY, are charged with the murder of Declan Cutler on 13 March 2022 in Reservoir.

1. On 12 March 2022, Declan also known by his nickname DJay, went to a party in Reservoir with his friends. Declan was 16 years old. In the early hours of 13 March, Declan and his two friends left the party on foot.

1. Shortly after leaving the party, Declan and his friends were approached by a vehicle. Some of the occupants of the vehicle got out and ran towards Declan and his friends, who all ran away.

1. Very shortly after, at 2:28am on 13 March, Declan entered Horton Street from Elizabeth Street, Reservoir. He was walking alone when a vehicle entered the street. Closed-circuit television footage depicts the vehicle stopping near Declan, who turns and faces the car before eight individuals hurtle out of the vehicle and quickly move towards him.

1. Declan is subsequently attacked and killed by a group of eight young males. The entire attack is captured on the CCTV footage and lasts approximately two minutes. The attack involved the use of four knives by five of the group members. In approximately two minutes, Declan is repeatedly stabbed, kicked and stomped on. The CCTV footage and the autopsy results reveal the sustained and ferocious nature of the attack. Autopsy results found Declan suffered 66 blunt force injuries to his face and limbs, 56 sharp force injuries, comprising 29 stab wounds, 27 incised wounds, and 30 puncture wounds. The cause of death was from four of the stab wounds to his chest.

1. The prosecution alleges that SA, DM, QM and SY were involved in the attack on the deceased. SA, DM and QM deny that they were involved in the attack. SY admits that he was involved in the attack and pleaded guilty to manslaughter but not guilty to murder.

1. The prosecution puts its case against each accused on the basis of murder by complicity under s 323(1)(c), or alternatively s 323(1)(d) of the Crimes Act 1958 (Vic).

1. For the reasons set out in my judgment, I find that in relation to each accused the prosecution has proved the elements of murder by complicity under s 323(1)(c) beyond reasonable doubt. I therefore find that each of SA, DM, QM and SY are guilty of the murder of Declan Cutler.

Introduction

1. The four accused, SA, DM, QM, and SY,[1] are charged with the murder of Declan Cutler (‘the deceased’) on 13 March 2022. The indictment alleges murder at common law.

   [1]Where necessary or appropriate pseudonyms have been used throughout this judgment in accordance with Children, Youth and Families Act 2005 (Vic) s 534.

1. Their trial proceeded by judge alone in accordance with the temporary arrangements for trial by judge alone contained in Ch 9 of the Criminal Procedure Act 2009 (Vic) (‘Criminal Procedure Act’).

1. In short, the prosecution alleges that in the early hours of 13 March,[2] the four accused, along with four other co-offenders, travelled from Tarneit to Reservoir in a stolen Mazda 3 intending to confront a young male, TH.

   [2]All dates in this judgment are in 2022 unless otherwise stated.

1. Once in the Reservoir area the Mazda approached TH, the deceased, and TH’s cousin, KH, as they walked down a residential street. TH, the deceased and KH fled on foot, running in different directions. The Mazda pursued and eventually came upon the deceased while he was near the corner of Elizabeth and Horton Street, Reservoir.

1. The Mazda then stopped, and all eight occupants pursued the deceased and fatally attacked him in Horton Street. The attack involved the use of four knives by five individuals. Autopsy results reveal the deceased suffered 66 blunt force injuries to his face and limbs, 56 sharp force injuries, comprising 29 stab wounds, 27 incised wounds, and 30 puncture wounds.[3] The cause of death was ‘stab wounds of the chest’.[4]

   [3]Exhibit P43, 3.

   [4]Exhibit P43, 4.

1. The prosecution puts its case against each accused on the basis of complicity pursuant to s 323(1)(c), or alternatively s 323(1)(d) of the Crimes Act 1958 (Vic) (‘Crimes Act’).

1. Sections 323 to 325C of the Crimes Act provide a statutory codification of complicity. Section 324(1) provides that a person who is ‘involved in the commission of an offence is taken to have committed the offence and is liable to the maximum penalty for that offence’. Section 323(1) relevantly provides that a person is involved in the commission of an offence if the person:

(c)enters into an agreement arrangement or understanding with another person to commit the offence; or

(d)enters into an agreement, arrangement or understanding with another person to commit another offence where the person was aware that it was probable that the offence charged would be committed in the course of carrying out the other offence.

1. The attack is captured on CCTV footage from a house on the corner of Elizabeth and Horton Streets (‘the CCTV footage’). The prosecution contends that each of SA, QM, SY and DM can be seen participating in the attack on the deceased in the CCTV footage. It alleges that:

(a)   SY is the first male to approach the deceased (‘male 1’);

(b)  QM is the second male to approach the deceased (‘male 2’);

(c)   DM is the third male to approach the deceased (‘male 3’); and

(d)  SA is the eighth male to approach the deceased (‘male 8’).

1. The prosecution further asserts that the fourth to seventh males to approach the deceased were MM, JA, PM and AM, each of whom were associates of the accused.

1. Each of QM, DM and SA deny involvement in the attack on the deceased and contend that they are not depicted in the CCTV footage. Their identification as participants in the attack on the deceased is therefore a central issue in each of their trials.

1. QM and SA accept that if the prosecution proves that they are, respectively, male 2 and male 8 depicted in the CCTV footage then they are guilty of murder.

1. DM argues that even if he is proven to be male 3, he should not be found guilty of murder but instead guilty of manslaughter.

1. SY accepts that he is male 1 in the CCTV footage and on arraignment pleaded not guilty to murder but guilty to manslaughter.

1. DM and SY both argue that the prosecution has not established beyond reasonable doubt that they committed murder by complicity pursuant to ss 323(1)(c) or (d) of the Crimes Act.

Judge-alone trial principles

1. Between 7 and 10 October 2022, each of the accused made applications for a judge alone trial. On 11 October, the Court granted the applications ordering that the charge of murder alleged against each of the accused was to be heard and determined by judge alone pursuant to s 420E(1) of the Criminal Procedure Act.[5] As such in this case, I am to apply Ch 9 of the Criminal Procedure Act as it was in force immediately before its repeal.[6]

   [5]See Justice Legislation Amendment (Trial by Judge Alone and Other Matters) Act 2022 (Vic) s 3, which inserted Ch 9 into the Criminal Procedure Act 2009 (Vic). Section 420E of the Criminal Procedure Act  specified an order may be made for trial by judge alone if a pandemic order is in force. A pandemic order was in force as at 11 October 2022.

   [6]See Criminal Procedure Act 2009 (Vic) s 461.

1. I may make any decision which could have been made by a jury and my decision has the same effect as a jury verdict.[7]

   [7]Ibid s 420F.

1. Section 4A of the Jury Directions Act 2015 (Vic) (‘Jury Directions Act’) applies to this case.[8] This means that my reasoning with respect to any matter to which Parts 4, 5, 6 or 7 of the Jury Directions Act applies must be consistent with how a jury would be directed according to the Jury Directions Act. 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.[9]

   [8]Justice Legislation Amendment (Trial by Judge Alone and Other Matters) Act 2022 (Vic) s 420ZF.

   [9]Jury Directions Act 2015 (Vic) s 4A.

1. Part 3 of the Jury Directions Act concerning requests for directions does not apply to judge alone trials. Nevertheless, counsel addressed me at the conclusion of evidence on the directions and principles to which I should pay particular regard.[10] Where appropriate I have specifically considered the matters raised when assessing the evidence before me.

   [10]T1095–1117.

1. The onus of proof is on the prosecution and each accused comes to this Court with the presumption of innocence in his favour. The accused are regarded as innocent unless and until the prosecution has proved guilt beyond reasonable doubt. To do so, the prosecution must prove each of the elements of the relevant offence beyond reasonable doubt.[11] 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.[12]

   [11]Jury Directions Act 2015 (Vic) ss 61, 62.

   [12]R v Dickson [1983] 1 VR 227, 235 (Starke ACJ, Crockett and McGarvie JJ); R v Van Beelen (1973) 4 SASR 353, 374–80 (Bray CJ, Mitchell and Zelling JJ).

1. I must consider the case against each of the accused separately, in light only of the evidence which applies to that accused. I therefore must ask, in relation to each accused, whether the evidence relating to that accused has satisfied me beyond reasonable doubt that that accused is guilty of the offence charged. If a particular piece of evidence is only relevant to one accused, I may only use it when deciding whether that accused is guilty.

1. In each trial, I must consider all the evidence and decide the facts of the case. I must then apply the law to the facts I have found to determine whether the accused is guilty or not guilty of the offence charged.

1. I must only convict each accused if I am satisfied that his guilt is the only reasonable conclusion to be drawn from all the evidence admissible in their trials.[13] That is, both the direct and circumstantial evidence. The prosecution’s case against the accused relies heavily on ‘indirect’ or ‘circumstantial’ evidence. The principles concerning cases that turn upon circumstantial evidence are well settled.[14]

   [13]R v Baden-Clay (2016) 258 CLR 308, 323 [46] (French CJ, Kiefel, Bell, Keane and Gordon JJ); R v Barca (1975) 133 CLR 82, 104 (Gibbs, Stephen and Mason JJ).

   [14]R v Baden-Clay (2016) 258 CLR 308, 323 [46]–[47] (French CJ, Kiefel, Bell, Keane and Gordon JJ).

1. I may draw inferences however I may not speculate or make guesses. For an inference to be reasonable, it must rest upon something more than mere conjecture. All the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence. The evidence cannot be considered in a piecemeal fashion.

1. The prosecution will not have proven each accused’s guilt beyond reasonable doubt if a reasonable view of the facts is open which supports innocence. That is, I cannot return a verdict of guilty unless the circumstances exclude any reasonable hypothesis other than the guilt of the accused. A ‘reasonable hypothesis’ must possess some degree of acceptability or credibility. A hypothesis will not be reasonable if it is fanciful, impossible, incredible, not tenable or too remote or tenuous.

1. 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 evidence.

1. In this case there were a number of witnesses who were reluctant and/or evasive in their evidence. Accordingly, I have carefully assessed their credibility and reliability when determining what aspects of their evidence I can accept and what weight should be given to it. When considering reliability, I have had regard to many factors and in this case particularly their age, whether English is their first language, and whether they had a motive, conscious or unconscious, to be partial to one side or the other.

1. During oral evidence, certain inconsistencies gave rise to applications by the prosecution to cross-examine witnesses pursuant to s 38 of the Evidence Act 2008 (Vic) (‘Evidence Act’). I may use evidence that certain witnesses — namely TH, HP and AG — made prior inconsistent statements when assessing their credibility and reliability, if that evidence demonstrates that the witness is unable or unwilling to accurately recall relevant events. I must bear in mind that a witness who makes a prior inconsistent statement is not necessarily lying. While a dishonest witness is more likely to introduce inconsistencies into their stories, truthful witnesses may make mistakes about details. I may also use evidence of a prior inconsistent statement to prove the truth of the acts asserted in the statement. Ultimately if there are inconsistent statements before the Court, it is for me to determine which account, if any, I believe.

1. The accused did not themselves give evidence at trial. No adverse inference may be drawn from that fact.[15]

   [15]Jury Directions Act 2015 (Vic) s 41.

1. I acknowledge that the transcript of oral evidence and transcripts of audio-visual material are not themselves evidence and I must only use them as an aid. What was seen and heard in the courtroom is the only evidence in this case. I must disregard anything which is not relevant and if transcript differs from what I perceived, I am to disregard transcript.

1. The expert evidence in this case is generally not disputed. As a starting point, if expert evidence is undisputed, I must have a very good reason not to accept it. A very good reason includes: the facts underlying the opinion not being present; the process of reasoning leading to the opinion being unsound; or a factor that casts doubt on the validity of the opinion.[16] However, as requested, I have had regard to the limitations of the DNA and fingerprint evidence which was led and acknowledge that they merely provide circumstantial evidence which must be considered in light of the other evidence.[17]

   [16]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.

   [17]See Judicial College of Victoria, Criminal Charge Book (online) ‘4.13.2 – DNA Evidence’, ‘4.12.3 – Fingerprint Evidence’.

1. DM and SA both sought to rely on their good character.[18] If accepted, evidence of good character can be used in two ways:

(a)   it may make it more likely that an accused’s evidence or statements made out of court are credible; and/or

(b)  it may make it less likely an accused committed the offence charged.

[18]T1022.14–16; T1079.14–15.

1. As requested I have had regard to DM and SA’s good character in the second respect. However, the mere fact that a person is a person of good character cannot alter proven facts. It can only assist me to determine whether those facts have been proven.

1. In DM’s trial it is alleged that he made an admission to his mother, AG. There is also an alleged admission in QM’s trial: it is alleged that shortly after the attack he admitted his involvement in the offending by telling HP ‘He’s around there. He’s dead. Mum’s life. He’s dead’.[19]

   [19]T1169.21–24. See also Prosecution Written Closing Submissions, 33.

1. I may only use the alleged admissions if satisfied that: they were in fact made by DM and QM, respectively, and that the substance of the admission is truthful. It is essential that the two issues of whether an alleged admission was made and, if made, whether it was truthful, are kept strictly separate. The presence of truthful facts in the alleged admission must not be allowed to distract me from the possibility that the admission was fabricated by a person aware of the underlying facts.

1. In assessing the alleged admissions, I have kept in mind that evidence of admissions may be unreliable, and I have taken this potential unreliability into account when considering the evidence of the admissions, when determining whether I accept the evidence of the admissions and, if so, in deciding what weight should be given to that evidence.

1. Identification evidence was also given by a number of witnesses. Where relevant I have been cautious when considering whether to accept the identification evidence and the weight to be given to it, having regard to any matters which may make it unreliable. I have also had regard to the fact that a witness may honestly believe their evidence is accurate when they are, in fact, mistaken and the mistaken evidence of a witness may be convincing. I have kept in mind the dangers of identification evidence and I acknowledge that a number of witnesses may all be mistaken, and that mistaken identification evidence has resulted in innocent people being convicted.

1. In the trials of SA, QM and DM the prosecution relies on certain evidence as evidence of incriminating conduct. As discussed below, in considering whether that evidence can be relied upon in such a manner I have had regard to ss 21 and 22 of the Jury Directions Act.

1. Throughout the trial I also heard evidence about other criminal activity which the accused were involved in or connected to, such as the theft of cars and driving of stolen cars. I have only used such evidence for the purposes for which it is relevant to the facts in issue and not for any other purpose. I have not decided the case based on prejudice arising from what I have heard about the accused.

Elements of murder by complicity

1. The prosecution alleges that each of the accused are liable for the offence of murder on the basis of complicity under Div 1 of Pt 2 of the Crimes Act.

1. Pursuant to s 324(1), a person who is involved in the commission of the offence is taken to have committed the offence. In this case, the prosecution relies upon s 323(1)(c) or, alternatively, s 323(1)(d) to establish that the accused were ‘involved in’ the offence.

1. As the parties generally agreed, the elements of murder by complicity pursuant to s 323(1)(c), which the prosecution must establish beyond reasonable doubt, are that:

(1)       the accused entered into an agreement, arrangement or understanding with at least one other person to cause really serious injury or death to the deceased and that agreement, arrangement or understanding remained in existence at the relevant time the offence was committed (‘agreement, arrangement or understanding’); and

(2)       at the time of entering into the agreement, arrangement or understanding the accused had the requisite mens rea for murder — an intention to cause really serious injury or death (‘intention’); and

(3)       the accused engaged in an overt act in furtherance of the agreement, arrangement or understanding (‘participation’); and

(4)       in accordance with the agreement, one or more parties to the agreement performed all the acts necessary to commit murder (‘commission of murder’).[20]

[20]See DPP v PM [2023] VSC 560, [56].

1. I will commence by considering the prosecution’s primary case under s 323(1)(c). However, if I conclude that the prosecution has failed to prove these elements beyond reasonable doubt then I will turn to consider the elements of murder by complicity pursuant to s 323(1)(d). Furthermore, if in the case of DM, I find that he participated in the attack but I do not find the prosecution has established their case for murder under either s 323(1)(c) or (d), I will turn to consider the elements of manslaughter by unlawful and dangerous act pursuant to s 323(1)(c).

Evidence

1. At the trial, oral evidence was given by:

(a)   Samantha Cutler, the deceased’s mother;[21]

[21]T53–T54.

(b)  RA,[22] who held a party at her home in Livingstone Street Reservoir on the night of the 12 March which was attended by the deceased;

[22]T177–T198.

(c)   HP,[23] who attended RA’s party on 12 March, was allegedly in communication with QM throughout the night and is said to have identified QM in a vehicle that stopped near her on Elizabeth Street shortly after the attack on the deceased;

[23]T260–T281; T284–T334; T337.

(d)  GD,[24] HP’s friend who also attended the party and was with HP after the attack on the deceased;

[24]T345–T356; T361–T363; T365–T372.

(e)   TH,[25] a friend of the deceased, who attended RA’s party and was with the deceased when they were confronted by a group in a vehicle shortly before the fatal attack;

[25]T131–T141; T145–T146; T148–T174.

(f)    Candise La Rocca[26] and Frank Marcantonio,[27] who lived near the intersection of Horton and Elizabeth Streets, and were awoken by the attack and called police before discovering the deceased;

[26]T79–T89.

[27]T91–T99.

(g)  Nicole Fletcher,[28] Emily Borlase[29] and Stephanie Bacash,[30] who were residents in the area around RA’s home and the location of the attack on the deceased and gave evidence in relation to things they heard or saw on the morning of 13 March;

[28]T71–T77.

[29]T201–T209.

[30]T211–T217.

(h)  SC Felicity Clarke (‘Clarke’)[31] and SC Benn Keillor (‘Keillor’),[32] who attended RA’s home at 1:45am on 13 March and subsequently attended the scene of the attack at 2:33am;

[31]T375–T380.

[32]T102–T110.

(i)     FC Erin Scott (‘Scott’),[33] who attended the scene of the attack at 2:48am and spoke with HP and took a statement from GD;

[33]T413–T418.

(j)     SC Georgina Taylor (‘Taylor’),[34] who attended the scene of the attack and had discussions with TH and others at the scene;

[34]T219–T229.

(k)  SC Conor Healy (‘Healy’),[35] who attended the scene of the attack at 2:50am, where he had conversations with Mr Marcantonio, Ms LaRocca, and attempted to obtain a statement from TH;

[35]T232–T242.

(l)     LSC Daniel Ryan (‘Ryan’)[36] and DSC Jake Ferguson (‘Ferguson’),[37] who on 14 March had a conversation with TH outside TH’s father’s address in which TH is said to have made a number of statements in relation to the attack on the deceased including identifying SA as being involved;

[36]T432–T461.

[37]T420–T430.

(m)             DSC Peta Hammerstein (‘Hammerstein’),[38] DS Mark Farrugia (‘Farrugia’),[39] DSC Jason Stewart (‘Stewart’),[40] DSC Lal Devinder Singh (‘Singh’),[41] and SC Terence Amador (‘Amador’),[42] who assisted in the execution of a search warrant at QM’s address which led to his arrest in a nearby park;

[38]T503–T510.

[39]T475–T485.

[40]T487–T491.

[41]T493–T501.

[42]T470–T473.

(n)  AG,[43] DM’s mother who gave evidence in relation to an admission allegedly made by DM to her following DM’s police interview;

[43]T540–T554; T556–T584.

(o)   DSC Daniel Herbert (‘Herbert’),[44] attached to the Victorian Homicide Squad, who on 13 March conducted open source social media inquiries in relation to the investigation and, on 23 March, was involved in the arrest and interview of DM after which he had discussions with AG who allegedly disclosed admissions made by DM leading to Herbert taking a statement from her;

[44]T646–T680.

(p)  DS Leah Marriner (‘Marriner’),[45] who was involved in the arrest of SA at his home on 6 April and took possession of a mobile phone and iPad which were found near SA’s bed;

[45]T512–T514.

(q)  Janette Psaroudis,[46] a forensic scientist employed by the Victoria Police Forensic Services Centre in MacLeod;

[46]T589–T612.

(r)    Sgt Steven Dunn (‘Dunn’),[47] a Fingerprint Expert in the Northern Fingerprint Branch which is part of the Victorian Police Forensic Services Centre;

[47]T614–T624.

(s)    Constable Nicole Bond (‘Bond’),[48] who was formerly a forensic officer in the Fire and Explosion Unit at the Victoria Police Forensic Services Centre;

[48]T626–T630.

(t)    Sgt Telen Standfield (‘Standfield’),[49] who reviewed CCTV footage from QM’s home address in Tarneit for the period between 12:00am and 2:00pm on 13 March;

[49]T635–T643.

(u)  Dr Joanna Glengarry,[50] a Forensic Pathologist who conducted an autopsy on the deceased on 14 March;

[50]T689–T727.

(v)  DSC Brendon Stack (‘Stack’),[51] the informant who adduced a large amount of audio-visual and other materials obtained during the investigation;

[51]T736–T779; T897–T934; T938–T989, T994–T1006; T1008–T1009; T1017–T1040; T1042–T1072; T1074–T1085.

(w)Natalie Webster,[52] the communications manager for Crime, Counter Terrorism and Intel and Covert Support Commands with Victoria Police who gave evidence that the deceased was not named in a press release made at 3:30pm on 13 March but that at some time on 14 March between the release of newspapers in the morning and nightly news, the deceased was named by the media;

[52]T465–T468.

(x)   LSC Ryan Pitts (‘Pitts’),[53] who examined the mobile phones alleged to belong to JA and HP and performed a data extraction using the Cellebrite program;

[53]T517–T519.

(y)  SC Tori Durling (‘Durling’),[54] a technical intelligence officer in the Crime Intelligence Group at the Homicide Squad, who performed Cellebrite phone extractions on the mobile phones said to belong to SY and QM and prepared some maps of cell towers using the ArcGIS mapping program using event-based monitoring data provided by telecommunications providers in relation to the phone numbers said to belong to QM, SY, JA and SA;

(z)   Christian Granville-Smith,[55] a Digital Forensics Officer with Victoria Police who used the Cellebrite and Axiom software analysis data extractions from the mobile phones said to belong to SY, HP, QM and SA;[56] and

(aa)            Dr Matthew Sorrell,[57] a Senior Digital Forensics Consultant and telecommunications expert who analysed the mobile phone records in relation to the telephone services alleged to belong to SY, JA, QM and SA.

[54]T521–T530.

[55]Mr Granville Smith gave pre-recorded evidence during pre-trial on 10 November 2023 and his pre-recorded evidence was played to the Court on the eighth day of trial.

[56]Pre-trial transcript, T100–T109.

[57]T782–T891.

1. In addition, the statements of the following individuals were read into evidence:

(a)   David Rieger,[58] the owner of the grey Mazda 3 with registration 1RY-9WJ (‘the Mazda’) which was stolen from the Anytime Fitness gym in Armadale;

[58]T55–T56.

(b)  JB,[59] RA’s mother who on 15 March noticed that a large stainless steel kitchen knife was missing from the kitchen and on 16 March that a steel kitchen knife, a bread knife and a little green garlic knife were also missing;

[59]T56–T58.

(c)   MS,[60] who attended RA’s house on the night of 12 March and had a knife held to his throat in the front yard prompting him to call police at 1:42am;

[60]T58–T63.

(d)  Jasmine Sharpe,[61] a graduate ambulance paramedic who attended the scene of the attack at 2:31am on 13 March and attempted a number of medical interventions on the deceased before he was pronounced dead;

[61]T63–T65.

(e)   JK,[62] a volunteer youth worker who had worked with QM in whose name the SIM card in the mobile phone alleged to belong to QM was registered;

(f)    Isabella Fishman,[63] the owner of a Holden Cruze (‘the Holden Cruze’) which was stolen from the Anytime Fitness gym in Caulfield; and

(g)  DSC Samantha Russell (‘Russell’),[64] who attended the scene at 4:42am on 13 March and assisted in the execution of the search warrant at QM’s address and his subsequent arrest.

[62]T65–T66.

[63]T66–T67.

[64]T730–T735.

1. Furthermore, the following statements of agreed facts were tendered into evidence:[65]

   [65]Pursuant to Evidence Act 2008 (Vic) s 191.

(a)   Agreed Facts for SY;[66]

[66]Exhibit P4.

(b)  Agreed Facts for QM;[67]

[67]Exhibit P5.

(c)   Agreed Facts for DM;[68]

(d)  Agreed Facts for SA;[69] and

(e)   Agreed Facts for QM and SA in relation to call charge records for mobile number ending 794.[70]

[68]Exhibit P6.

[69]Exhibit P7.

[70]Exhibit P219.

1. The Court conducted two views during this trial. The first view of the crime scene and immediate surrounding area took place on 16 November 2023 between approximately 10:27pm and 11:11pm. A bundle of documents including a proposed script for the informant (acting as shewer) and maps of the area was tendered by the prosecution,[71] and I sent a summary of my observations to the parties via email on 21 November 2023.

   [71]Exhibit P2.

1. The second view — of a model of Mazda vehicle like that involved in the alleged offending — took place on 7 December 2023 between 10:00am and 10:02am. A summary of my observations during the second view was read into transcript.[72]

   [72]T990.8–18.

1. There is a vast array of material before the Court comprising of 236 prosecution exhibits, many of which contain multiple items, as well as three defence exhibits in the trial of QM and 29 defence exhibits in the trial of SA.

1. Much of the audio-visual materials in evidence were obtained from extractions performed on the following mobile phones:

(a)   a Black Apple iPhone 8 Plus with an Optus telephone number ending in 651 said to belong to SY (‘SY’s phone’);[73]

[73]Exhibit P4; Exhibit P5; Exhibit P6; Exhibit P7.

(b)  a Black Apple iPhone 11 with a Telstra telephone number ending in 661, seized from QM’s bedroom and is said by the prosecution to belong to him (‘QM’s phone’);[74]

[74]See Exhibit P6 (in DM’s trial); Exhibit P7 (in SA’s trial). For the purposes of QM’s trial, I am satisfied that this phone belonged to QM, the telephone service was registered to JK who was connected to QM and the phone was seized from QM’s bedroom on 23 March 2022: Exhibit P5.

(c)   a Blue Apple iPhone Pro Max with a Vodafone number ending in 794 said to belong to JA (‘JA’s phone’);[75]

(d)  an Apple iPhone 13 with an Optus telephone number ending in 794 belonging to HP (‘HP’s phone’);[76] and

(e)   an Apple iPhone 11 with red back seized from SA’s bedroom on 6 April and linked to an Optus telecommunications service ending in 518 and registered to SA’s mother, as well as a service ending in 580, said to belong to SA (‘SA’s phone’).[77]

[75]See Exhibit P5; Exhibit P6; Exhibit P7 (in QM, DM and SA’s trials respectively).

[76]Ibid.

[77]See Exhibits P5; Exhibit P6 (in QM and DM’s trials respectively). For the purposes of SA’s trial, I am satisfied that this phone belonged to SA, the telephone service was registered to his mother and the phone was seized from SA’s bedroom on 6 April 2022: Exhibit P7.

1. Call charge data and event-based monitoring data from these phone services were also in evidence.

1. In addition to material extracted from the above mobile devices, other audio-visual material tendered included the following:

(a)   Various clips of body worn camera (‘BWC’) footage from members of Victoria Police on 12 and 13 March;

(b)  CCTV footage from QM’s home address and surrounding houses in Amsterdam Avenue, Tarneit;

(c)   CCTV footage from McDonald’s and KFC restaurants at the Riverdale Shopping Centre in Tarneit;

(d)  CCTV footage from various properties on Nocton, Livingstone and Elizabeth Streets before and after the attack;

(e)   CCTV footage from the primary crime scene;

(f)    CCTV footage from various gyms and service stations said to depict some of the accused; and

(g)  both SA and DM’s record of interview with police.

1. The prosecution also tendered two compilation videos which combined various individual exhibits:

(a)   a compilation of audio and/or visual material from 12 and 13 March, together with a table itemising each clip;[78] and

(b)  a compilation of audio and/or visual material from 15 and 16 March, together with a table itemising each clip.[79]

[78]Exhibit P174.

[79]Exhibit P210.

1. During the trial, a number of issues relating to the admissibility of certain evidence were raised, with my decisions in relation to three of these matters reserved until after the completion of trial. I reached my conclusion on those issues before considering whether the prosecution has proved its case beyond reasonable doubt but have delivered my rulings on those matters alongside these reasons.[80]

   [80]See DPP v SA & Ors (Ruling No 6) [2024] VSC 27R.

1. Given the quantity of evidence, I will commence by providing an overview of the evidence and the facts I can readily accept, before considering the issues in relation to each accused and whether the prosecution has established their guilt beyond reasonable doubt.

The deceased

1. The deceased was aged 16 years old at the time of his death.[81] He went by the nickname ‘Djay’ and had the Instagram handle ‘djay.nn’ at the time of his death.[82] There is no evidence before the Court which establishes that the deceased had any association with any of the accused prior to his death.

   [81]T53.10–12.

   [82]T53.20–31; Exhibit P1; Exhibit P39.

The accused and their associates

1. In March 2022:

(a)   SA was living in Werribee and was 17 years old. He was also known as ‘[SA Nickname].[83] He used the Snapchat account ‘[SA Snapchat]’ and used the email account [SA email];[84]

[83]This is an agreed fact in SA’s trial: Exhibit P7. There is also a large quantity of evidence admissible in the trials of QM, DM and SY which establishes that SA went by the nickname ‘[SA Nickname]’.

[84]Exhibit  P7.

(b)  QM was living in Amsterdam Avenue, Tarneit and was 17 years old. He was also known by ‘[QM Nickname] and used multiple Instagram accounts ‘[QM Instagram]’ and emails [QM email];[85]

(c)   DM was living in Hoppers Crossing and turned 15 years old in early March. He was also known as ‘[DM Nickname]’ and used an Instagram account ‘[DM Instagram]’;[86] and

(d)  SY was living in Taylors Hill and was 17 years old. He was also known as ‘[SY Nickname]’ and used Instagram account ‘[SY Instagram]’.[87]

[85]These are agreed facts in QM’s trial: Exhibit P5. There is also a large quantity of evidence admissible in the trials of SA, DM and SY which establishes that QM went by the nickname ‘[QM Nickname]’.

[86]These are agreed facts in DM’s trial: Exhibit P6. There is also a large quantity of evidence admissible in the trials of SA, QM and SY which establishes that DM went by the nickname ‘[DM Nickname]’.

[87]These are agreed facts in SY’s trial: Exhibit P4.

1. The prosecution alleges,[88] and the evidence suggests, that the accused were a member of, or associate of a group known by the moniker the ‘9ers’ from the Western suburbs.[89]

   [88]T1151.4–12.

   [89]‘9ners’ is spelt a variety of different ways throughout the evidence including ‘niners’, ‘9ers’ and ‘9iners’. The Court has adopted the spelling ‘9ers’ for consistency.

The other alleged co-offenders: JA, PM, AM and MM

1. The prosecution alleges that the four other individuals who participated in the attack on the deceased are JA, PM, AM and MM. The following are agreed facts in the trials of SA and QM:[90]

On 13 March 2022 at approximately 1.36am, [JA] was an occupant inside a stolen Mazda 3 sedan bearing licence plates 1RY9WJ (the Mazda) in the vicinity of Isabella Way, Tarneit.

[JA] remained an occupant of the Mazda as it travelled from Isabella Way, Tarneit at 1.36am to Horton Street, Reservoir at 2.28am.

[JA] is one of the assailants identified in CCTV footage from 204 Elizabeth Street, Reservoir on 13 March 2022.

[JA] remained an occupant of the Mazda as it travelled from Horton Street, Reservoir at 2.31am to the Tarneit area.

On 12 and 13 March 2022, [JA] was in possession of a blue iPhone 12 Pro Max (the iPhone).

The telecommunications service connects to the iPhone was linked to Vodafone service … 827. On 12 and 13 March 2022 that service was used by [JA].

[JA]’s nickname is ‘[JA Nickname]’.

[90]Exhibit P5; Exhibit P7.

Other associates

1. There was some evidence in relation to other associates of the accused. Counsel for SA identified the following associates as potential suspects: ZM, SM, FI and AA. In videos and CCTV from 12 March, the accused can also be seen with a number of other unidentified youths. There was also specific reference in the trial to other individuals such as MF.

1. It was contended by counsel for SA, QM and DM that the prosecution has not excluded the possibility that it may be one of these individuals, rather than one of them, depicted in the CCTV footage of the attack.

1. Of the associates identified as potential suspects, particular attention was paid to ZM’s potential involvement. During cross-examination by counsel for SA, the informant identified ZM in a number of videos.[91] ZM is of mid-range height, with a slim build, and fine facial features. The informant gave evidence that ZM was not visible in the CCTV from McDonald’s or KFC with the larger group on the afternoon of 12 March,[92] though was arrested on 23 March with JA.[93] ZM was HP’s boyfriend,[94] and was tied to multiple car thefts together with JA.[95]

   [91]Exhibit P207; Exhibit SA9; Exhibit SA16.  See also T1039.5–9; T1040.5–7; T1046.31.  

   [92]T1080.6–12

   [93]T1024.24–30.

   [94]T319.31–T320.4. See also Exhibit SA2.

   [95]T1023.30–T1024.8.

1. AA was identified by the informant as being one of the young men who was at McDonald’s, Tarneit on 12 March,[96] as was SM.[97] MF was identified as being one of the young men inside KFC.[98]

   [96]T1036.8–11.

   [97]Exhibit SA11; T1044.9–10.

   [98]Exhibit SA11, T1044.13–17.

Tensions between the 9ers and H-Town

1. The prosecution alleges that in March there were tensions between those associated with the 9ers and another group, known as ‘H-town’, from the Heidelberg area. The prosecution case is that it was this animosity which led to the attack on the deceased.[99]

   [99]T1150.14–T1151.25.

1. There was no evidence that the deceased was associated with H-Town. However, there were some suggestions in the evidence that TH may have been,[100] although in his evidence he denied any knowledge of H-Town or gangs in the Heidelberg area.[101]

   [100]See, eg, Exhibit P8 (where he can be heard stating, unprompted, ‘all my boys are from Heidelberg‘); T262.27–T363.6.

   [101]T150.25–30..

1. HP’s Snapchat records include a suggestion that — as the prosecution contend — there were tensions between H-Town and those associated with the 9ers. For example, the following exchange occurring between HP and an account whose name suggests it may belong to FI:[102]

[FI]:               Ay can u set up a h town n****?

HP:                Ahahaha no can do

HP:                I can’t get caught up in that

[102]Exhibit P10(9); I acknowledge that in her evidence HP suggested that this was ‘not a 9er’, but not that the name resembles the name of ‘her friend’ FI and HP is an associate of a number of ‘9ers’.

1. There is other general evidence of these tensions, some of which is dealt with in more detail below.[103]

   [103]See, eg, Exhibit P10(3); Exhibit P39; Exhibit P225.

Movements of the accused on 12 March

1. I will now move through a chronology of the evidence led as it relates to the events leading up to, and immediately after, the attack on the deceased.

1. At 2:14pm on 12 March, a Snapchat video was taken on SY’s phone. The location of the video is recorded as Taylors Lakes.[104] The video depicts four people in a car as it drives. SA can be seen in the driver’s seat vaping, with PM and DM in the back seat. The person taking the video is not shown but is wearing a black Nike jacket.

   [104]Exhibit P52; Exhibit P63.

1. At 2:32pm another Snapchat video was taken on SY’s phone which displays the steering wheel and dash of a car, with a Mazda logo visible. The video is taken by the driver, but the car is being steered by the passenger in the front seat.[105]

   [105]Exhibit P52; Exhibit P66.

1. At 3:17pm a further Snapchat video was taken on SY’s phone which shows PM, wearing a grey Champion-brand hoodie, vaping in the back seat of a car. The location of the video is recorded as Coolaroo.[106]

   [106]Exhibit P52; Exhibit P67.

1. At 3:30pm and 3:33pm, the Mazda— which had been stolen from the Anytime Fitness gym in Armadale on 10 March[107]—was photographed by fixed speed cameras travelling south on the Western Ring Road at the Fullerton Road Bridge, Keilor Park, and in Adeer.[108] This movement is consistent with the Mazda being the car in which the earlier Snapchat’s on SY’s phone were recorded.

   [107]See T55–T56.

   [108]Exhibit P69; Exhibit P70.

1. During that afternoon, QM’s phone’s GPS data shows that it was located:

(a)   in Amsterdam Ave, Tarneit at 1:22pm;[109]

(b)  at Werribee Police Station at 2:34pm;[110] and

(c)   at Sprinkles Ice Creamery at 3:26pm.[111]

[109]Exhibit P51.

[110]Ibid.

[111]Ibid.

1. A photograph taken on QM’s phone at 3:26pm shows QM inside a store holding an ice-cream.[112] It appears that this image was put on Snapchat and accessed by SA’s phone.[113]

   [112]Exhibit P68.

   [113]Ibid.

1. At 3:55pm a further Snapchat video taken on SY’s phone shows PM, SY, DM, and SA (who I consider is wearing a ski-mask/balaclava) sitting across the back seat of the Mazda. The video pans to show MM in the front passenger seat with AM driving, with the Mazda logo on the steering wheel visible. The location of the video is recorded as Tarneit.[114]

   [114]Exhibit P52; Exhibit P71.

1. In the afternoon of 12 March, it appears that all four accused along with MM, AM, PM and JA, and other youths spent time at and in the vicinity of the McDonald’s restaurant at the Riverdale Shopping Centre, Tarneit. The accused can be seen in this area on CCTV footage as well as in videos taken by QM on his phone. Among the other youths present at the McDonald’s are SM, MF and AA, all of African appearance.[115] SM wears a grey Nike Tech jacket with black ‘V’ on the chest, grey sweatpants and black shoes. He is of average height. MF wears a black Nike Tech jacket with v on the chest and black shoes. He has a stocky build and has his hood up. AA is tall, wears all black with a white logo just below his left hip.

   [115]Exhibit SA11; T1036.8; T1044.8–14.

1. While they interact with a variety of others, the eight individuals alleged by the prosecution to be involved in the attack on the deceased all spend time together inside the McDonald’s restaurant and can be seen play fighting at various points.

1. A Snapchat video of the group play fighting was recorded by QM at 5:30pm inside the McDonald’s. The video commences with QM’s face before the camera switches to show PM, SA, DM, JM and AM playfighting as someone says ‘he’s getting raped, bro’.[116] A copy of this video was saved on HP’s phone at 5:32pm.[117] The evidence does not reveal how HP obtained a copy of this video, however, the CCTV inside McDonald’s confirms that it was recorded at 5:30pm suggesting it must have been through QM.

   [116]Exhibit P75.

   [117]Ibid.

1. At 6:34pm SY’s phone connects to JA’s hotspot, which is named ‘[JA Nickname]’.[118]

   [118]Exhibit P77.

1. At 6:54pm a Snapchat video is recorded on SY’s phone which shows him in the backseat of a moving car holding a box of cream chargers, colloquially referred to as ‘nangs’. DM can be seen seated next to SY and the location is recorded as Tarneit.[119]

   [119]Exhibit P52; Exhibit P79.

1. At 7:09pm a further Snapchat video is recorded on SY’s phone which is taken from a footpath with a McDonald’s arch visible across an intersection. It shows a car accelerating as it rounds a corner. There appears to be a group of boys watching as this occurs but only DM is clearly visible. The location of the video is recorded as Tarneit.[120]

   [120]Exhibit P52; Exhibit P80.

1. At 7:12pm, a large number of young males are caught on CCTV outside McDonald’s.[121] I observe that the following known individuals appear on screen in this CCTV footage: QM, AM, JA, SM, MF, SY, DM, SA, PM and MM. There are also a number of unidentified males of African appearance. Various members of the group are sucking on balloons.

   [121]Exhibit P81.

1. At 7:14pm, external CCTV from 7-Eleven, Tarneit captures various young people moving through the central parking lot at Riverdale shopping centre. At 7:15pm, a grey Mazda drives from the parking lot through the 7-Eleven.[122] It is unclear from the CCTV footage tendered how many people are in the Mazda at this stage.

   [122]Exhibit P82.

1. At 7:40pm, a number of young people are captured inside KFC, Riverdale Village Tarneit which is across the road from McDonald’s.[123] MF and another unidentified male can be seen already inside, and SM, QM, SA, JA, DM and two other unidentified males enter shortly after. SA lies down on a table and the rest of the group stand around. SY and MM then enter, and various iterations of the group can be seen chatting and interacting while others move in and out of the restaurant.

   [123]Exhibit P84; Exhibit SA11; T1044.

1. At approximately 7:46pm, SA and QM move to another corner of the restaurant and can be seen chatting with a male and female.[124] At one stage, the male, who is dressed in all black with a North Face emblem on his left chest pocket approaches others in the group. He stands between DM and MM facing JA, SY and another unidentified male before moving off.

   [124]Ibid.

1. At approximately 7:48pm, SA, JA and QM can be seen sitting together with the couple. Through a window DM, MM and another male can be seen moving out of the restaurant at approximately 7:49pm. At 7:53pm, QM and others also leave KFC.

1. At 8:05pm, AM, PM and DM approach McDonald’s, Tarneit. AM enters the store, and PM, DM, MM, JA and SY are captured walking back towards the car park.[125]

   [125]Exhibit P85.

1. At 8:18pm, a running race outside McDonald’s between AA and two others is captured on JA’s phone. AM and QM can also be seen in the footage.[126]

   [126]Exhibit P98.

1. At 8:20pm, a grey Mazda is captured on the McDonald’s CCTV.[127] It is unclear where the car goes or who is inside, but at 8:50pm the Mazda involved in the offending parks outside McDonald’s.[128] The Mazda’s registration, 1RY-9WJ, is visible. It was stolen on 10 March from Anytime Fitness, Armadale.[129]

   [127]Exhibit P99. I am satisfied this is the Mazda: See, eg, Exhibit P153.

   [128]Exhibit P100; Exhibit P101.

   [129]T55.10–T56.4.

1. QM exits first out of the passenger-side rear door, now wearing a black puffer jacket with white emblem on left upper arm, and the same orange headphones, white t-shirt peeking out, and black pants with Champion logo on the left leg and shoes as before.[130] In the front passenger seat someone can be seen putting on an orange jacket. The prosecution suggest that this is SA and say that QM and SA have switched jackets at this point.[131] The driver and passenger remain in the car, but at approximately 8:51pm, JA and two other unidentified males enter the Mazda via the driver’s-side rear door.[132]

   [130]Exhibit P100.

   [131]Prosecution Written Closing Submissions, 14.

   [132]Exhibit P100.

1. The car begins backing out of the parking spot but then stops. AM, QM and another male exit McDonald’s and begin interacting with those in the car.[133] The passenger-side rear door is opened, and then QM, AM and the unidentified male with orange shoes move back into the restaurant and the car pulls away. QM can be seen adjusting a balaclava over the bottom half of his face.[134] His hood is also pulled up and orange headphones worn over the hood. The three sit down again in McDonald’s in the same area as the group was observed at 5:30pm and eat.[135]

   [133]Ibid.

   [134]Exhibit P102.

   [135]Exhibit P103.

1. At 8:59pm and 9:02pm, two photographs are taken on SA’s phone showing SA in a car with a seatbelt on. An orange jacket can be seen slung over his shoulders and he is wearing a black shirt underneath with white text across the chest.[136]

   [136]Exhibit P104; Exhibit P105.

1. At 9:19pm a Snapchat video is recorded on SY’s phone, which shows some youths, including AM, play fighting outside. The location of the video is recorded as Tarneit.[137]

   [137]Exhibit P52; Exhibit P106.

1. At 10:04pm a video is recorded on JA’s phone showing a group of approximately nine boys dancing (which was described during the trial as the ‘party video’).[138] DM, PM, SY and AM all appear visible in the party video.

   [138]Exhibit P107.

1. At 11:32am a further Snapchat video is recorded on SY’s phone showing a silver sedan. The location of the video is recorded as Tarneit.[139]

   [139]Exhibit P52; Exhibit P110.

1. Dr Sorrell’s analysis of the telecommunications evidence, discussed below, also accords with SY, SA, QM and DM’s phones being in the vicinity of the Riverdale Shopping Centre throughout the afternoon of 12 March.

ZM’s messages on 12 March

1. The evidence revealed that it was not unusual for the young people associated with the accused to log into accounts for services such as Snapchat and Instagram on one and another’s phones, because they did not have a phone, or had no data or otherwise.[140]

   [140]See, eg, T320.23–26; Exhibit QM2; Exhibit SA3; Exhibit SA6; Exhibit SA20; Exhibit SA21; Exhibit SA22; Exhibit SA23;Exhibit SA24.

1. A number of Instagram messages from a number of accounts said to belong to ZM were in evidence, having been obtained from the extractions of SA and QM’s phones suggesting that — at least at some point — ZM had possession of their phones. In that regard, in re-examination, Stack explained that when a user of an application like Instagram logs into that application on a new mobile device, the most recent messages sent or received to their account will save to the databases on that device.[141] If that person were to scroll back through their chat history while logged into the new phone, any chat history that loaded would also be saved onto the databases of that device.[142] Furthermore, if a user remains logged into their account on the device it will continue to download messages that are being sent in real time until that user has logged out. Therefore, the presence of messages on a particular device is not necessarily an indication that they were sent from that device; just that they were sent by a particular account which, at some stage, was logged into that device.

   [141]T1084.2–15.

   [142]T1084.18–29.

1. Snapchat messages between HP and ZM, retrieved from HP’s phone, were also in evidence.

1. SA, QM and DM particularly highlighted ZM as another potential suspect. Accordingly, I will here outline the evidence I have before me in relation to ZM on 12 March. However, I note that there was also a quantity of messages involving ZM which predated 12 March,[143] which among other things indicate that HP and ZM were in a relationship.[144]

   [143]For example, SA, QM and DM relied on Instagram messages from ZM to an unknown account which refer to Nike Tech jackets, to demonstrate the prevalence of these jumpers within their social milieu as well as the fact that ZM likely had access to and/or wore such clothing. See Exhibit SA17.

   [144]See Exhibit SA5.

1. At 12:53pm on 12 March, in an Instagram message obtained from SA’s phone, ZM appears to respond ‘Home’ to a message from DM’s Instagram account from the previous day asking, ‘Ay where you’. At 6:06pm, DM’s account replies ‘Swt’ and the message is liked by ZM at 6:34pm.[145]

   [145]Exhibit SA24.

1. Throughout the afternoon of 12 March, HP and ZM messaged back and forth on Snapchat.[146] The messages, retrieved from HP’s phone, include:

2:24:36pm      ZM:     Yh coz ima be in Northside either way bae

3:53:33pm      ZM:     Yallah stay safe bae ima come see u in a bit

3:53:35pm      ZM:     Love u

4:17:52pm      HP:     Oh I’m in my bed chilling

4:18:02pm      HP:     you too

[146]Exhibit SA2.

1. While an Instagram conversation which occurs between ZM and an unknown user, occurring between 7:33 and 7:34pm retrieved from QM’s phone, was as follows:[147]

   [147]Exhibit SA28.

Unknown:     Telly

N****s have 450

ZM:               ik there’s a telly
  But I need my car rn bro

I need to pick up arra n lean

Unknown:     We gonna get arra

ZM:               I been stranded for hours

Rs

Unknown:     Who’s leah

ZM:               My brothers

1. Later that evening, at 10:29pm, ZM messages HP ‘I feel bad baby’ to which HP responds at 10:36pm ‘you don’t have to feel bad baby it’s okay’.[148]

   [148]Exhibit SA2.

The party in Reservoir

1. On the evening of 12 March, RA held a party at her family home in Livingstone Street, Reservoir. Her parents and brother were away for the weekend.

1. Evidence in relation to the party was given by RA, HP, GD and TH who attended the party. Evidence was also given by various members of Victoria Police who attended the party after reports were made of a knife being pulled on one of the attendees.

1. RA gave evidence that invitations were given through word of mouth and through Snapchat,[149] and that some of the invitees also invited friends.[150] At about 9:30pm a group of 10 to 15 boys who RA did not know came to the party.[151] The nicknames she learnt included Djay.[152] The following day she learnt that Declan was Djay’s real name.[153] RA gave evidence that she did not know TH and was not introduced to TH but that she heard someone say ‘like, “[TH] is here” and [she] had no idea who that was’.[154]

   [149]T178.7–8.

   [150]T178.18–21.

   [151]T179.14–15; T179.22.

   [152]T179.30.

   [153]T179.31–T180.2.

   [154]T185.29–T186.6.

1. She stated that those invited were also mostly out the back and she tried to keep it out the back as much as she could but that the party started to move inside as the night went on.[155] The bedrooms were off limits,[156] however, her bedroom door was open and she saw people going in and out of it.[157]

   [155]T186.14–19; T187.15–16.

   [156]T187.22.

   [157]T187.23–26.

1. The party started to wrap up around 1:00am or 1:30am on 13 March and RA started to kick the group of boys who had come to the party out.[158] When she was kicking the boys out they were trying to ‘take, it seemed to me, weapons that weren’t exactly weapons’[159], namely golf clubs, kitchen knives and forks.[160]

   [158]T180.14–17; T190.7–9.

   [159]T180.9–10.

   [160]T180.7–22.

HP’s recordings at the party and phone calls to QM’s phone

1. HP’s evidence is highly relevant and goes to a number of issues in this case. I will set out in the following section details of recordings HP made on her phone at the party and after she left the party with GD.

1. It is convenient to make the following comments and observations about HP as a witness given the repeated references to her evidence in my reasons.

1. HP is 17 years old. She presented as a courteous and generally co-operative witness and answered most questions. Having said that I consider HP’s answers to questions were often evasive, inaccurate and on some occasions untruthful. It is not surprising that HP may have been reluctant to disclose information in court. In March 2022 HP had a significant connection to the 9ers. Her boyfriend at the time ZM was a member of the 9ers and she had a close association with QM and to a lesser extent SA. On 23 March, HP was arrested along with JA, PM and AM in relation to this case. A recorded phone call between QM and SA on 1 April when QM was on remand at Parkville Juvenile Justice Centre reveals that HP was considered a snitch by QM and SA.

1. HP’s reluctance or evasiveness was evident for example when she was asked by the prosecutor to name the boys that she was arrested with on 23 March. HP initially questioned if she had to answer, then said ‘I do not feel like saying their names’, before she said that she had forgotten their names.[161] An answer which beggars belief. When pressed, HP asked if she had to answer that question. HP eventually named AC, QM and DM as people she was with at the time of the arrest.

   [161]T268.12–26.

1. Another example is when HP was asked questions in relation to whether she spoke to anyone in a car shortly after leaving the party. HP initially denied approaching any car or speaking to anybody in a car. [162] HP was subsequently shown CCTV footage,[163] and conceded that the two people seen walking to the car were probably her and GD.[164] She agreed that she probably briefly spoke to the driver.[165] In cross-examination HP agreed that in her statement to police she did not mention that she approached the car.[166] She went on to agree that she had no independent memory of walking over to the car until she was shown the footage in court and that she did not remember the event.[167]

   [162]T265.22–23.

   [163]Exhibit P10(8).

   [164]T285.9–10.

   [165]T285.12–13.

   [166]See Exhibit P10(8).

   [167]T315.2–8.

1. The two examples demonstrate the difficulty with HP’s evidence and distilling the truthfulness of her answers. While I found HP to be untruthful and evasive on many matters, I still found other aspects of her evidence to be compelling. I will return to her evidence and my assessment of her credit and reliability later in my reasons. I have treated HP’s evidence with caution and have been careful in reaching my conclusions of fact based on HP’s evidence and determining what aspects of her evidence I accept or reject.

1. Bearing these comments in mind, I will now set out the uncontroversial aspects of HP’s evidence and return to the more contentious aspects later.

1. HP knew RA from school and attended her party in Reservoir with three other friends. HP arrived at approximately 10:00pm, after TH had arrived and 40 minutes prior to GD.[168] HP gave evidence that prior to the party she did not know TH but that he was friends with GD.[169]

   [168]T261.15–T262.25.

   [169]T262.21–25.

1. While at the party, HP made video recordings on her phone at 1:22am,[170] 1:53am[171] and 1:56am.[172] These recordings were made discretely, and it appears without the knowledge of those being recorded. It is not clear why HP made these recordings.

   [170]Exhibit P10(2).

   [171]Exhibit P10(3).

   [172]Exhibit P10(1).

1. In the 1:22am recording,[173] the following can be heard:

   [173]Exhibit P10(2).

HP:	Where’s [GD]?. I’m about dip (sic). Someone’s picking me up. Where’s [GD]? Some n****** trying to pick me up. …Oi, [GD] come here, …we’re about to get picked up bro, [SA Nickname]’s coming.
[discussion between various unknown individuals]
Unknown female:	Are they picking you up?
GD:	Can they drop us off, or nah?
HP:	They’re pushing two whips.
GD:	Are they coming here?
HP:	Yeah.
Unknown male:	Whose coming?
HP:	[SA Nickname].
Unknown male 1:	N*****s, [SA Nickname]’s coming. On my mum’s life.
Unknown male 2:	Who – swalib?
Unknown male 1:	Mum’s life, two whips to pick her up.
HP:	N******, I’m going home.
Unknown male 3:	Who’s coming? Who’s coming?
HP:	My friend [SA Nickname].
[female screams heard]
Unknown male 3:	Who’s he coming with?
Unknown male 1:	Two whips cuz.
Unknown male 3:	Hey n*****s, let’s post up in the whip. Let’s block the streets off.
[discussion about [SA Nickname] coming far off, discussion between HP and another male who are unknown to each other]
Unknown male 4:	When is [SA Nickname] my n***** coming?
HP:	I said I don’t know. I said he’s just picking me up but I’ll let you guys know when he’s here.

1. At 1:29am, HP calls QM’s phone with the call lasting for 2 minutes and 41 seconds. HP’s evidence during cross-examination was that she could not remember speaking with QM at this time.[174] HP’s phone records show that at 1:32am a video was sent to an unspecified recipient.[175] The thumbnail of the video suggests it was taken at the party as it displays the white blanket with red fern-like markings visible in both the 1:04am recording[176] and the 1:22am recording.[177] I consider this is likely to be the 1:22am recording, given that the thumbnail of these videos appears identical. In any event, QM’s phone records show that at 1:32am, he received the 1:22am video from HP.[178]

   [174]T310.22–24.

   [175]Exhibit P121.

   [176]Exhibit P117.

   [177]Exhibit P119.

   [178]Exhibit P122.

1. In the 1:53am recording,[179] made at the party, the following can be heard:

   [179]Exhibit P10(3).

HP:	Since when were you beefing with the 9ers?
TH:	Fuck the 9ers.
HP:	Fuck the 9ers? What do you mean by that though?
[discussion about a mutual acquaintance]
HP:	You’re from H-town too?
TH:	My phone bro, someone fucking took my phone.
Unknown female 1:	[TH], what’s your number?
Unknown female 2:	Have you checked the couch?
TH:	This my cousin, this my fucking cousin.
HP:	I didn’t know you were cousins…When [SA Nickname] and stuff come, we are only dipping, no one needs to [indistinct].
[various discussion about TH’s phone being missing]
HP:	Wait, [TH]?
[more discussion about the phone and TH having been asleep on a couch]
TH:	Was I sleeping?
Unknown female 3:	Yes, off your head bro.
[HP indicated she is going to lie down]
Police member:	Everyone alright? No one’s injured or anything?
HP:	No. Swalib! How’d they just come to the house like that? Y’all n*****s have just got all the doors open [indistinct].

1. In the 1:56am recording,[180] the following can be heard:

   [180]Exhibit P10(1).

HP:	Did you just say the N-word? N*****, why you say’n n*****?…N*****, what the fuck!
Unknown male:	I’m aboriginal, I’ve lived in Collingwood my whole life.
HP:	N*****, I live in Collingwood.
Unknown male:	Yeah, so ask me in your language [indistinct].
HP:	No you don’t.
Unknown male:	Shut up you [indistinct], bro.
HP:	Khwaja, who are you calling white?
GD:	You know he’s friends with Dane, [indistinct].
HP:	You friend’s with my cousins?
Unknown male:	Yep. Grew up in [indistinct].
HP:	N*****, we’re from [address].
Unknown male:	[address].
HP:	You live on [street] with like [indistinct], yeah?
Unknown male:	Yeah.
HP:	229 is where it’s at.
Unknown male:	229 is the bitchest block I’ve ever seen in my life.
HP:	I’m dead.
Unknown male:	Those are the bitch ends. When they come to our flat [indistinct].
TH:	Bro, I’m gonna fucking knock someone’s shit out bro, someone took my phone bro.
HP:	Ok, what if the n*****s have your phone…swalib, they just walked outside. They came inside the room, talked about is someone injured in here, we said sweet, they left…[P], don’t tell me you’re on bail. Don’t tell me you’re on bail.
TH:	Where’s my fucking phone?
HP:	Your friends probably have your phone.
TH:	It’s an iPhone 8. It’s black.
HP:	I’m telling you, your friends probably have your phone.
TH:	I’m just thinking about where the fuck I put my phone.
GD:	Let me try and call [S].
TH:	That’s why you don’t do fucking Xan.
GD:	Did you pop a Xan? Weirdo…most funniest shit I’ve seen.

1. The content of these recordings will be discussed below.

Incident at the party

1. The statement of MS, who attended the house party at RA’s house on the evening of 12 March, was read into evidence by the prosecution.[181] MS attended the party with eight others. He did not know RA and was aware of the party through one of his friends. When the group arrived, MS observed that a large number of people were congregated in the front yard of the house. No music was playing, and MS noted that those in the front yard were ‘Drilla-looking people’. MS stated that ‘drilla’ is used to describe people who wear ‘black-coloured clothing, masks and carry knives’. Those affiliated with ‘drilla’ culture ‘go around drilling people, which is pretty much just assaulting people’.

   [181]T58–T63.

1. MS approximated that there were about 30 males in the front yard and one female, who he assumed was the party host. MS remembered one male was wearing a ski mask which covered his entire face save for his eyes. MS also observed that a lot of the males carried machetes and knives and made no attempts to conceal them.

1. As he approached the house, MS observed a male leaning on the letterbox. The male had dark skin, was of African heritage, wore dark colour clothing apart from some blue around his neck and was approximately 18 years old. The male may have been wearing a cap. MS said to the male ‘what’s going on?’ to start a conversation. The male stood up, grabbed the left side of MS’s jumper and held up a knife to MS’s throat with his right hand. The knife was not serrated, had a black handle with a silver metal knob on the end and was just shy of 30 centimetres in length. MS recalled that the knife was pressed to his neck where his Adam’s apple is. The male mumbled something which MS could not hear, but at the end said, ‘slit your throat’.

1. MS said to the male ‘I’m not here for trouble. I’m leaving’. The male then let go of MS’s jumper, removed the knife from MS’s neck and did not say anything. MS started walking away back along the route he had arrived on and tried to relay to his group that a knife had been pulled on him.

1. At 1:42am once MS was approximately 100 meters up the road from the house, he called triple 0 and explained what happened. After MS hung up the phone, his friend ran up and expressed ‘Bro, I’ve just had a machete pulled on me’. MS’s friend looked ‘shocked and upset’, so he decided to call triple 0 again. MS soon heard sirens and observed a police divvy van drive by. Though this evidence provides context to the arrival of police at the party, I am satisfied it has no connection with the attack on the deceased.

Police attendance at the party

1. At 1:45am on 13 March, Clarke and Keillor attended RA’s home where it had been alleged that someone had held a knife to someone else’s throat.[182]

   [182]T102.19–T103.1; T375.13–20.

1. Furthermore, when the other participants have returned to the waiting Mazda, SY positions his foot over the deceased’s head, with his phone in his hand and with Snapchat open, presumably attempting to take a photo of the deceased. At this time his phone’s light is on giving him a clear view of the harm the deceased had suffered. As I have already found, SY was the first on the scene in the first wave and the last to leave the first wave. Despite not being armed with a knife or attempting to get a knife from one of the group, SY is fully engaged in the brutal attack on deceased – he stomps and kicks the deceased repeatedly, forcefully and brutally – while his associates relentlessly stabbed the deceased.

1. I find as a matter of fact that the fatal stab wound, or wounds identified by Dr Glengarry to the deceased’s left chest occurred in the first wave. A careful review of the footage reveals that the only stabbing in the second wave inflicted by male 2 is to the lower part of the deceased’s body. Throughout the second wave the location of the deceased’s upper body is visible as he is lying on the grass nature strip with his head near the rear passenger wheel of Ms LaRocca’s car.

1. Ultimately, I consider that when close regard is paid to SY’s actions the only possible inference available on the evidence is that he was party to an agreement or understanding to cause the deceased at least really serious injury. This is particularly so when regard is had to the ferocity of the attack during the first wave. As the prosecution submits, the absence of any facial fractures on the deceased from the kicking and stomping towards his head does not detract from the apparent ferocity of SY’s kicking and stomping. Dr Glengarry’s evidence was that the grass of the nature strip may have absorbed some impact from downward force applied to the deceased’s face by way of stomping or kicking.

1. Furthermore, at the point in time SY agreed with the others to attack the deceased and intended that the attack would cause him really serious injury or death, all the acts committed by the other offenders, as parties to the agreement are attributable to SY. There was no submission on behalf of SY that he withdrew at any time from the agreement, arrangement or understanding.

1. The ferociousness and sheer number of times the deceased was stabbed and kicked and stomped in such a short space of time — during the first wave — bespeaks of a group who had agreed to inflict at least really serious injury or death on the deceased.

1. This is not the case of a spontaneous scuffle or fight which got out of hand. The group travelled from Tarneit intent on a confrontation. When they reached the Reservoir area the group confronted TH at the first opportunity. When TH, KH and the deceased fled, the Mazda quickly pursued. While they may not have had an agreement, arrangement or understanding to inflict really serious injury until this point, it is clear that such an agreement, arrangement or understanding had been formed when the Mazda, having spotted the deceased, quickly turns into Horton Street and the eight boys exit the vehicle in pursuit of the deceased. This can be the only inference which can be drawn from the predatory nature of their conduct and the relentless and brutal nature of the attack. While there is no known connection between SY, or any of the attackers and the deceased, they had reached an accord to brutally and viciously attack and cause at least serious injury or kill whichever of TH, KH or the deceased they caught up to following the original confrontation in Nocton Street.

1. I find that as he left the Mazda in pursuit of the deceased, SY knew what was going to happen to the deceased and his conduct confirmed his subjective agreement to be a part of the criminal act. He knew there were knives, and he pulled the deceased down and began attacking.

1. In reaching that conclusion I have had regard to SY’s youthful age, the fact that he does not himself possess a knife and that he does not re-join the attack during the second wave. Given all his actions before, the fact that he remains in the Mazda during the second wave does not suggest that he was a party to some lesser agreement or understanding. Indeed, at the close of the first wave, the purpose of the agreement or arrangement had been fulfilled; the deceased had undoubtedly sustained really serious injury.

Agreement, arrangement or understanding — DM

DM’s submissions

1. In DM’s closing submissions it was emphasised that while an agreement can be inferred from this case, what must be inferred for the purposes of murder is an intention to cause really serious injury or death. DM submits that it cannot be said when the deceased received the fatal wounds DM was involved in the attack. I repeat my earlier finding, that I consider that the fatal stab wound, or wounds as identified by Dr Glengarry must have occurred in the first wave when DM was present and engaged in the attack, albeit he walks away from the scene and returns.

1. DM also made more detailed submissions under the heading ‘intention arguments’, which I have discussed in more detail in relation to the intention element. However, I have also had regard to these points for the purposes of whether an agreement can be inferred, notably: DM’s age at the time; the short period of his involvement in the attack; and the lack of explicable motive for his engagement in such an agreement, arrangement or understanding. In DM’s trial there was evidence that he had no prior convictions and, as such, I have also had regard to DM’s good character.

DM analysis

1. In the CCTV footage, DM can be seen as the third person to reach the deceased. DM can be seen with a large knife in his left hand. DM arrives at the deceased seconds after he was pulled to the ground by SY. As SY stomps and QM repeatedly and viciously stabs the deceased, DM stabs down at the deceased four times. It is clear from the footage and the way the deceased is brought to the ground that his upper body and head are towards the Mazda and his feet are pointing towards the fence. This can be seen when the deceased tries to sit up and ward off his attackers – it is also how his body is seen in the second wave and when his body is discovered later. Based on the position of the deceased when he is brought down, I accept that when DM starts stabbing the deceased he is aiming at his upper body.

1. While DM’s stabbing motions are not as pronounced and visibly vicious as some of those inflicted by others, I do not accept the submission on DM’s behalf that DM can only be described as slashing rather than stabbing. I consider DM drives the large knife down into the deceased four times in what appear to be relatively forceful stabbing motions with a large knife. The knife he is using is visibly large and it would undoubtedly be capable of causing really serious harm, regardless of how his actions are described. As DM stabs the deceased, the others are kicking, stomping and stabbing. The unfolding of the first wave including, the speed, the duration and the ferocity of the kicking, stomping and stabbing perpetrated by the attackers together and individually — bespeaks of an attack that was agreed to before the attack commenced. An attack that was aimed to kill or cause the deceased at a minimum really serious injury. From the moment the deceased is pulled down by male 1, he was defenceless and alone – the stabbing , kicking and stomping commences immediately – no hesitation – and continues to the very end of both waves of the attack.

1. After inflicting his fourth stab, DM is pushed out of the fray by MM and then SA. He watches as the deceased continues to be attacked by SY, MM and AM as QM continues stabbing. At this point SA takes the knife from DM’s hand. DM then walks away from the attack, around the rear of Ms La Rocca’s car and down the middle of Horton Street back to the awaiting Mazda. DM does not voluntarily put down his knife – it is taken from him by SA. I consider that DM’s conduct in the first moments of the attack reflect his agreement to cause the deceased at least really serious injury and he actively participates and encourages the others to do what they had agreed. The fact that DM inflicted four and not ten or more stab wounds does not diminish his assent to the agreement or his participation. Nor does his relatively brief active participation in the attack. He was not an onlooker shocked at what was happening – he was the third person to arrive and immediately commences stabbing the deceased.

1. True it is that DM jogs back to the car during the first wave after SA has taken the knife from him. However, after a few seconds out of view DM returns in view. He walks back down Horton Street around the rear of Ms La Rocca’s car. He watches as the savage assault continues and tries to re-enter the fray — specifically at 2:29:12 — when he places his hands on PM and SY and moves his right leg forward in a kicking motion. As he does try to re-enter the fray, the deceased’s head is raised, and he is attempting to ward off repeated stabs. His attempt at re-entering appears somewhat equivocal and he is blocked by PM’s arm. He then turns around and moves to the back of Ms La Rocca’s car and seems to linger before returning to the Mazda as MM, SA and JA also depart.

1. In considering whether DM entered into an agreement or understanding to cause really serious injury or death to the deceased, I have had regard to his young age and good character.

1. Nonetheless, given DM’s actions in arming himself with a large knife and pursuing the deceased with seven others and immediately and without hesitation stabbing him repeatedly as he was defenceless on the ground and being attacked by others, the only possible inference available on the evidence is that he subjectively agreed or had an understanding of the criminal acts and to kill the deceased or cause him really serious injury.

1. That DM was not involved in the second wave of the attack is not to the point. Section 324(2) of the Crimes Act provides that ‘a person is not taken to have committed an offence if the person withdraws from the offence’. What amounts to ‘withdrawal’ for the purposes of complicity under the Crimes Act remains governed by the common law.[740] As is explained in Criminal Charge Book:[741]

   [740]See Crimes Act s 324C.

   [741]Judicial College of Victoria, Criminal Charge Book (online) ‘5.2 Statutory Complicity (From 1/11/14)’.

A person is not involved in the commission of an offence if he or she withdraws from the offence (Crimes Act 1958 s 324(2)). The Act does not codify the law of withdrawal, and the common law on this topic is preserved…

At common law, a person is not responsible for the acts of other parties to an agreement if s/he withdrew from the agreement prior to its completion (R v Lowery & King (No 2) [1972] VR 560). Under the Crimes Act 1958, withdrawal may be relevant to both group offending and also to complicity on the basis of assisting, encouraging or directing an offence.

The withdrawal must ordinarily have been expressly communicated to the other members of the enterprise. However, in exceptional circumstances it may be possible for an accused to have implicitly withdrawn from the agreement (White v Ridley (178) 140 CLR 342; R v Tietie (1988) 34 A Crim R 438; R v Jensen and Ward [1980] VR 196).

…

It is usually more difficult to withdraw from an agreement at the time of the offending than beforehand. Withdrawal at the time of the offending will usually require greater conduct to undo the effect of the previous agreement (see R v Becerra (1976) 62 Cr App R 212).

…

The issue of withdrawal only needs to be addressed if the defence has pointed to some evidence that shows that the accused unequivocally countermanded or revoked his/her previous agreement. The prosecution will then bear the onus of disproving this withdrawal (White v Ridley (1978) 140 CLR 342; R v Croft [1944] KB 295; R v Rook [1993] 1 WLR 1005).

1. There is no suggestion, and I do not accept, that his lesser involvement or even hesitancy, in the later stages of the first wave and by returning to the Mazda and not participating in the second wave of the attack, DM withdrew from the agreement, arrangement or understanding. Accordingly, even if DM could be ‘disengaged and unconnected’ with the offending during the second wave, this does not impact the inferences which can be drawn from his conduct as to the agreement, arrangement or understanding he entered in the moments before the deceased was pursued and attacked. All the acts committed by the other offenders as parties to the agreement are attributable to DM.

Conclusion on agreement, arrangement or understanding.

1. For the above reasons I am satisfied that in each of their respective trials the prosecution has established beyond reasonable doubt that SA, QM, DM and SY reached an agreement, arrangement or understanding to attack the deceased with the intention of causing him really serious injury or death and that that agreement, arrangement or understanding remained in existence at the time the offence of murder was committed.

Intention

1. The prosecution must also prove that at the time of entering into the agreement, arrangement or understanding, each accused had the state of mind required for the commission of the offence.[742] Accordingly, here the prosecution must prove that each accused had an intention that death or really serious injury be caused to the deceased.

   [742]Osland v R (1998) 197 CLR 316, 325–6; Likiardopoulos v R (2010) 30 VR 654, 674.

1. SA and QM did not dispute that they intended to cause really serious injury to the deceased when they entered into the agreement, arrangement or understanding. From their actions in the CCTV footage, I accept that the prosecution has established, beyond reasonable doubt, that they had — at the least — an intention to cause really serious injury.

1. As identified above, SY and DM submit that they did not have the requisite intention for murder.

1. The relevant intention for the purposes of complicity under s 323(1)(c) is the intention an accused had at the time the agreement, arrangement or understanding was entered. It is not to the point that an accused’s intention may have changed at some later point before the commission of the offence unless they can be said to have withdrawn from the agreement, arrangement or understanding. DM or SY suggested that they had withdrawn from the agreement, arrangement or understanding.

1. Thus, while DM and SY’s conduct during the attack is relevant to the inferences which can be drawn as to their intention at the time they entered into the agreement, arrangement or understanding, actions which suggest a later change of intention — such as not returning during the second wave of the attack — are of little assistance.

1. As noted above, SY and DM’s submissions on intention were interweaved with their submissions on agreement, arrangement and understanding discussed above. I have had regard to the entirety of each of their submissions in my analysis below.

Intention — SY

1. In summary, SY submits that the following facts suggest that, at the time SY entered into the agreement, arrangement or understanding, SY did not have an intention to kill or cause serious injury to the deceased:

(a)   the evidence does not establish that he is a member of a gang or had any association or animosity with TH or the deceased;

(b)  SY is not armed with a knife or any weapon and none of his acts evince a murderous intention and he has a lower level of involvement than others;

(c)   the deceased suffered bruises, abrasions and lacerations from his blunt force injuries consistent with being stomped and kicked but did not suffer more serious injuries such as fractures;

(d)  there is no other misconduct or incriminating conduct evidence relating to SY, and there is no evidence placing him in the company of his co-offenders after the early hours of 13 March; and

(e)   SY’s young age.

1. The relevant intention is the intention which SY held at the time he entered into the agreement, arrangement or understanding. There is no suggestion that he ‘withdrew’ from the agreement, arrangement or understanding as that term is understood by the common law. To be guilty of murder by complicity SY need not to have himself inflicted the fatal blows, nor have intended that through his actions alone really serious injury would be inflicted. Instead, the prosecution must establish that when he entered into the agreement he intended that some party to the agreement cause really serious injury or death to the deceased.

1. The CCTV shows, and I have found above, that SY pursued the deceased after exiting the Mazda and pulled him to the ground and then kicked and stomped on the deceased whilst others were attacking the deceased. SY was aware at the time he entered into the agreement or understanding that knives would be used in the criminal acts. Further, when the attack commenced he was fully aware that knives were being used and despite this continued in the attack.

1. The agreement, understanding or arrangement which I have found SY to have entered was formed only a brief time before these events, either in the Mazda as it pursued the deceased or as SY and the others exited the vehicle in pursuit of the deceased. The seeds of this agreement or arrangement were likely sown well before, when SY and the others decided to travel from Tarneit to the party in Reservoir clearly intent on some sort of confrontation, evidenced by SA approaching the Mazda with a large knife in hand.

1. As a result, the inescapable conclusion is that at the time he entered into the agreement, arrangement or understanding to cause the deceased at least really serious injury, SY had the intention that really serious injury be inflicted on the deceased. This is not a situation where, for example, SY could be said to have entered into an agreement or arrangement in the belief that it would not actually be acted upon and therefore did not have the requisite intent. Instead, SY entered into the agreement or arrangement in the moments immediately before he attacked the deceased alongside the other parties to the agreement or arrangement.  

1. While there is no evidence of a connection between SY and the deceased or TH, the 16 March entry in the notes application of his phone refers to ‘9inez’ and ‘The Gang’ as well as ‘my Bro [SA Nickname]’and ‘the 9’. It is impossible to identify the precise motives that SY, and the other participants in the attack, had for travelling from Tarneit to Reservoir — some armed with knives, confronting TH and ultimately viciously attacking the deceased. However, the absence of such evidence does not detract from the inferences which can be drawn from these facts and SY’s actions in the CCTV footage which reveal the intention he must have held when he pursued the deceased alongside seven others.

1. I have had regard to SY’s age at the time but do not consider it alters my conclusions.

1. I accept the prosecution has established beyond reasonable doubt that SY had, at the least, an intention to cause really serious injury.

Intention — DM

1. In summary, DM submits that considering the following matters the prosecution has not established beyond reasonable doubt that DM intended that really serious injury or death be caused to the deceased at the time he entered into the agreement or arrangement:

(a)   the fact the accused was only 15 at the time of the offending, and his immaturity and understanding tend against an inference that he must have intended to cause the deceased really serious injury or death;

(b)  there is no evidence of a connection between DM and the deceased or TH, and HP did not know DM and there was no evidence connecting DM with social media posts after the deceased’s death;

(c)   there is no evidence which would explain a motivation for DM to form a murderous intent; and

(d)  DM’s involvement in the attack is of a short duration.

1. As with SY, DM entered into the agreement, arrangement or understanding a short time before the attack on the deceased commenced. DM pursued the deceased with a large knife which he used to stab the deceased four times as soon as he reached him. Having found that DM entered into an agreement, arrangement or understanding to cause really serious injury to the deceased, the inescapable conclusion is that — at the time he entered into the agreement, arrangement or understanding — DM had the intention that really serious injury or death be inflicted on the deceased pursuant to the agreement. His actions alone — stabbing the deceased four times while he lay defenceless — are consistent with a murderous intention. Taken together with group offending this leads to a conclusion beyond reasonable doubt that DM had the requisite intention when he entered the agreement.

1. I have taken into account DM’s young age but nonetheless, given his actions alongside the collective actions of the group and his awareness of there being more than one knife when the agreement was formed, I am satisfied beyond reasonable doubt that at the time the agreement was formed he had an intention that at least really serious injury or death be caused to the deceased.

Conclusion on intention

1. For the above reasons, I find that the prosecution has proved, beyond reasonable doubt, that at the time of entering into the agreement, arrangement or understanding to cause the deceased really serious injury or death, each accused had an intention that — at the least — really serious injury be caused to the deceased.

Commission of murder

1. This element requires the prosecution to prove that all the elements of murder were committed by a party to the agreement, arrangement or understanding. The elements of the offence of murder are that:

(1)       the accused committed acts which caused the victim’s death; and

(2)       the accused committed those acts consciously, voluntarily and deliberately; and

(3)       the accused committed those acts while intending to kill the victim or cause the victim really serious injury; and

(4)       the accused did not have a lawful justification or excuse for those acts.

1. For the purposes of murder by complicity, it is not necessary to identify the principal offender who performed those acts. In this regard, s 324B of the Crimes Act provides that:

A person may be found guilty of an offence by virtue of section 324 if the trier of fact is satisfied that the person is guilty either as the person who committed the offence or as a person involved in the commission of the offence but is unable to determine which applies.

1. I am satisfied beyond reasonable doubt that one of the party’s to the agreement, arrangement or understanding committed all the elements of murder.

1. The evidence of Dr Glengarry establishes that the deceased’s death was caused by stab wounds to the chest. These stab wounds must have been inflicted during the first wave, as during the second wave the location of the deceased’s upper body is visible and the only stabbing which occurs is on the deceased’s lower body.

1. Dr Glengarry identified that one or a combination of the stab wound to the deceased’s left anterior chest, the two stab wounds to the deceased’s left lateral chest and the stab wound to his left upper back were associated with the injuries which caused the deceased’s death. Each of these wounds required at least moderate if not severe force and were inflicted while the deceased was defenceless on the ground.

1. While I cannot determine precisely which party to the agreement, arrangement or understanding inflicted those stab wounds, I am satisfied from the footage and Dr Glengarry’s evidence that the fatal stab wounds must have been done consciously, voluntarily and deliberately, with an intention to at least cause really serious injury and without a lawful justification or excuse.

Conclusion

1. For the above reasons, I am satisfied beyond reasonable doubt that each of SY, QM, DM and SA committed the offence of murder as they were involved in the offence pursuant to s 323(1)(c). It is therefore unnecessary to consider the prosecution’s alternative case for murder pursuant to s 323(1)(d) nor the alternative verdict of manslaughter by unlawful and dangerous acts pursuant to s 323(1)(c).

Verdict

1. I direct that in relation to the indictment numbered C2215271.3 on charge 1 — that SY, QM, DM and SA at Reservoir in Victoria on the 13^th day of March 2022 murdered Declan Cutler — a verdict of guilty be entered for each accused.