Director of Public Prosecutions v SA & Ors (Ruling No 6)

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:	11 December 2023
DATE OF RULING:	9 February 2024
CASE MAY BE CITED AS:	DPP v SA & Ors (Ruling No 6)
MEDIUM NEUTRAL CITATION:	[2024] VSC 27

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CRIMINAL LAW – Ruling – Murder – Judge alone trial – Admissibility of certain evidence deferred until after completion of trial – Hearsay – Admissibility of previous representations – Admissions – Incriminating Conduct – Whether post-offence conduct reasonably capable of being viewed as evidence of incriminating conduct – Jury Directions Act 2015 (Vic) s 20 – Evidence Act 2008 (Vic) ss 136, 137.

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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 Christin Tom	KPT Legal Pty Ltd
For DM	Mr D Sala	Emma Turnbull Lawyers
For QM	Mr M Page with Ms M Greener	Ajak & Associates
For SY	Ms A Cannon	Chester Metcalfe & Co

TABLE OF CONTENTS

Previous representations of TH....................................................................................................... 1

Evidence of the representations.................................................................................................. 2
Legal framework........................................................................................................................... 5
Relevance........................................................................................................................................ 7
Is the evidence first-hand hearsay?............................................................................................ 7
Does the evidence come within one of the exceptions to the hearsay rule?...................... 14
Section 137.................................................................................................................................... 14

Alleged admission of DM.............................................................................................................. 17

Herbert’s evidence...................................................................................................................... 19
AG’s evidence.............................................................................................................................. 21
Analysis........................................................................................................................................ 29
Section 136.................................................................................................................................... 37

Incriminating conduct..................................................................................................................... 37

Principles...................................................................................................................................... 38
Items disputed by QM................................................................................................................ 41
Items 1, 2 and 3................................................................................................................... 42
Items 4, 5 and 6................................................................................................................... 48
Items 7, 8 and 9................................................................................................................... 50
Item 11................................................................................................................................. 52
Item 12................................................................................................................................. 54
Item 13................................................................................................................................. 55
Items 14, 15 and 16............................................................................................................. 56
Conclusion.......................................................................................................................... 59

Items disputed by SA................................................................................................................. 59

Conclusion......................................................................................................................................... 63

HER HONOUR:

The accused, SA, DM, QM, and SY,[1] are each charged with the murder of Declan Cutler (‘the deceased’) on 13 March 2022. The deceased died after being attacked by eight individuals in a suburban street in Reservoir, Victoria. The fatal assault on the deceased was captured on CCTV footage from a nearby residential premises.
[1]Where necessary or appropriate pseudonyms have been used throughout this ruling in accordance with Children, Youth and Families Act 2005 (Vic) s 534.

The accused’s trials proceeded by judge alone in accordance with the temporary arrangements contained in Ch 9 of the Criminal Procedure Act 2009 (Vic).

During the course of trial the following issues were raised in relation to the admissibility of:

(a) evidence of certain previous representations allegedly made by a witness, TH, to police;

(b) evidence in relation to an admission allegedly made by DM to his mother AG; and

(c) the admissibility of certain items of incriminating conduct alleged against QM and SA in the prosecution’s further amended notice of incriminating conduct dated 23 October 2023 (‘the Incriminating Conduct Notice’) pursuant to s 20(1)(b) of the Jury Directions Act 2015 (Vic) (‘Jury Directions Act’).

As the trial was by judge alone, it was agreed that the most efficient course would be for my rulings on these issues to be deferred until after completion of the trial and my written rulings would accompany my substantive judgment.

This ruling deals with those issues in turn. Each of which I considered and reached my conclusion upon, before commencing my analysis of the evidence for the purposes of my substantive judgment.

Previous representations of TH

The prosecution seeks to adduce evidence of previous representations purportedly made by TH under the exception to the hearsay rule contained in s 66 of the Evidence Act 2008 (Vic) (‘EvidenceAct’).

There is evidence of a number of representations made by TH to police officers during the investigation into the deceased’s death. Representations were made to the following officers:

(a) SC Georgina Taylor (‘Taylor’);

(b) SC Connor Healy (‘Healy’);

(c) LSC Daniel Ryan (‘Ryan’); and

(d) DSC Jake Ferguson (‘Ferguson’).

Objection is only taken to the representations made to Ryan and Ferguson on 14 March.[2] It is submitted on behalf of SA that the evidence of those alleged representations is not admissible because the evidence is not first-hand hearsay, and therefore does not fall within an exception to the hearsay rule. In the alternative, it is submitted that the evidence should be excluded pursuant to s 137 of the EvidenceAct.
[2]All dates in this ruling are in 2022 unless otherwise stated.

Evidence of the representations

Ferguson and Ryan gave evidence that they attended TH’s father’s address on 14 March and spoke to TH. Ferguson gave evidence that TH made the following representations:

(a) the offenders arrived in a vehicle;[3]
[3]T421.8.

(b) he said ‘come on, let’s go’;[4]
[4]T422.10–11.

(c) ‘[SA Nickname]’ was one of the offenders and he was seated in the rear left of the vehicle;[5]
[5]T421.9–11.

(d) he thought there was going to be a fight;[6]
[6]T421.11–12.

(e) he saw the amount of offenders who arrived;[7]
[7]T421.13–14.

(f) he was 100% on ‘[SA Nickname]’, he was in the rear left of the vehicle they arrived in;[8]
[8]T421.23–28.

(g) he ran off because he thought there would only be two in the vehicle, he thought it would be fists;[9]
[9]T422.2–5.

(h) he observed the sheer number of people coming out of the vehicle and he ran off;[10]

(i) that the group were a gang from Tarneit called ‘The Nine’ or ‘9ers’;[11]

(j) that the group were after him and that it was in relation to something on the block.[12]

[10]T422.5–7.

[11]T422.28–30.

[12]T423.1–4.

It was an agreed fact in SA’s trial that he was known by ‘[SA Nickname]’. Ferguson’s evidence was that TH did not provide any information as to how he identified SA.[13]
[13]T421.22–3.

Ryan gave evidence that TH made the following representations during their conversation:

(a) he had been at a party, he had woken up, it was fucked because the boys were gone, it was just him, his cousin KH and the deceased left;[14]
[14]T434.8–14.

(b) the males were from Tarneit and that is your only hint;[15]
[15]T434.15–18.

(c) one of them goes by [SA Nickname];[16]
[16]T434.18–19.

(d) there were males, including [SA Nickname] in a vehicle;[17]
[17]T434.19–21.

(e) [SA Nickname] was in the back left of the vehicle;[18]
[18]T434.22.

(f) that he thought it would only be hands;[19]
[19]T434.25–26.

(g) when he realised that there was much more than two, he ran;[20]
[20]T434.27–28.

(h) I’m 100% on [SA Nickname];[21]
[21]T434.29–30.

(i) the other males were little kids and he didn’t know them;[22]
[22]T434.30–31; T435.1.

(j) he identified on Instagram a picture of [SA Nickname] as one of the people present;[23]
[23]T435.1–9, T435.14–26.

(k) the males were screaming his name;[24]

(l) that it was about something on the block;[25] and

(m) that they were from a gang called The Nine and are all from Tarneit.[26]

[24]T437.12–14.

[25]T437.15–17; T437.23.

[26]T438.11–12; T438.15–18.

Ryan also gave evidence that:

(a) TH was not asked whether prior to that night he had ever seen [SA Nickname] before or if anyone had told him that it was [SA Nickname];[27]
[27]T451.13–16.

(b) TH was not asked if he had looked around on Instagram until he found a photograph of someone who looked like the person he saw that night;[28]
[28]T451.17–19.

(c) TH was not asked about lighting and distance in which the person was observed;[29]
[29]T455.27–29.

(d) TH was not asked for a description of clothing or if the person’s face was covered;[30]
[30]T455.30–31; T456.1-2.

(e) TH was not asked how long the person was observed for;[31]

(f) TH was not asked if it was a full face or profile he saw of the person;[32] and

(g) TH was not asked if he was drug or alcohol affected.[33]

[31]T456.3–4.

[32]T456.5–6.

[33]T456.7–8.

Legal framework

The hearsay rule in s 59 of the EvidenceAct provides:

Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.

However, s 66 sets out an exception to this rule in criminal proceedings where the maker of the representation ‘is available to give evidence about an asserted fact’.[34] This exception is limited to first-hand hearsay.[35] Section 66 provides:
[34]Evidence Act s 66(1).
[35]Evidence Act s 62.

(1)This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact.
(2)The hearsay rule does not apply to evidence of the representation that is given by the person who made the representation or a person who saw, heard or otherwise perceived the representation being made if —
(a)the person who made the representation has been or is to be called to give evidence; and
(b)either –
(i)when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation; or
(ii)the person who made the representation is a victim of an offence to which the proceeding relates and was under the age of 18 years when the representation was made.

(2A)In determining whether the occurrence of the asserted fact was fresh in the memory of a person, the court may take into account all matters that it considers are relevant to the question, including—
(a) the nature of the event concerned; and
(b) the age and health of the person; and
(c)the period of time between the occurrence of the asserted fact and the making of the representation.

As it is the prosecution seeking to lead evidence in reliance on s 66, it bears the onus of establishing these matters.[36]
[36]Boyer v The Queen (2015) 47 VR 640, 654-5 [69]–[70].

TH was available and called to give evidence.

The requirement that the occurrence of the asserted fact be fresh in the memory of the person who made the representation requires consideration of the time when the representation was made, considering when the asserted fact was said to have occurred.

TH gave evidence that he had no memory of the interaction with Ryan and Ferguson.[37] SA conceded that there is no requirement that the person who made the representation has, at the time of the proceeding, any memory of either the asserted fact or making the representation.[38]
[37]T149.7–11.
[38]SA Written Submissions on Hearsay, citing Singh v The Queen (2011) 33 VR 1, 4–5 [16]–[18].

When determining the admissibility of hearsay evidence, consistent with Kaye JA’s ruling in DPP (Vic) v Asling (Ruling No 2),[39] there are four questions that must necessarily be considered:[40]

(1) Is the evidence relevant to a fact in issue?
(2) Is the hearsay evidence, sought to be adduced, first-hand hearsay?
(3)Does the evidence come within any of the exceptions to the hearsay rule relied on by the prosecution?
(4)For the purpose of s 137 of the [EvidenceAct], is the probative value of the evidence outweighed by the danger of unfair prejudice to the accused if the evidence were admitted.
[39]DPP v Asling (No 2) [2017] VSC 38.
[40]Ibid, [34].

Relevance

There was no real question as to the relevance of the alleged representations made by TH. When determining the admissibility of the evidence, the evidence must be taken at its highest.[41] The representations, as summarised by the prosecution, do four things:
[41]IMM v The Queen (2016) 257 CLR 300, 312 [38]–[39] (per French CJ, Kiefel, Bell and Keane JJ).

(a) describe the initial confrontation;

(b) identify the motive for the attack;

(c) identify a group/gang responsible for the attack; and

(d) identify a particular individual said to be involved in the attack.[42]

[42]Prosecution Written Submissions on Hearsay, dated 9 December 2023, [6].

SA denies being present at the attack. Identity is the key issue and clearly the representations could rationally affect the assessment of that fact in issue.[43]
[43]Evidence Act s 55(1).

I accept that the evidence is also relevant and admissible as to motive and to the agreement, arrangement or understanding that is alleged to have formed.

Is the evidence first-hand hearsay?

Section 62 of the EvidenceAct restricts hearsay representations to first-hand hearsay:

(1)A reference in this Division (other than in subsection (2)) to a previous representation is a reference to a previous representation that was made by a person who had personal knowledge of an asserted fact.
(2)A person has personal knowledge of the asserted fact if his or her knowledge of the fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about a fact.

The prosecution does not need to satisfy the Court that the representations were so based, it is sufficient that they might ‘reasonably have supposed to have been’.

It is submitted on behalf of SA that there is evidence before the Court that the representations were not first-hand hearsay. The defence submits that shortly after the incident, TH commenced providing a statement to Healy at the scene in the police vehicle.[44] During this time, TH left the vehicle a number of times to speak to members of a group of people that had arrived at the scene.[45]
[44]T234.1–11.
[45]T235.12–20.

Healy gave evidence that he overheard comments made by various members of the group, and that the tenor of those comments led him to form the view that the people who had arrived believed that they knew who was involved in the offending.[46]
[46]T240.15–19.

The defence submits that prior to speaking to TH, information provided to the police indicated that TH’s cousin, KH, knew the offenders involved were ‘from the Tarneit area or western suburbs’.[47] The defence submits that TH’s representation could be based on what he was told by KH or others.
[47]T441.5–11.

The defence also points to the evidence of DSC Herbert (‘Herbert’). Herbert conducted open source social media enquiries on 14 March and observed an Instagram account belonging to the deceased.[48] Herbert observed other people posting comments in relation to the deceased, who appeared to be involved in the offending.[49]
[48]T646.14–18.
[49]T673.18–26.

TH gave evidence that he was aware of people leaving horrible comments on the deceased’s Instagram profile.[50] He also gave evidence that his memory from that period was poor, and it was possible that one of his friends (who was mutual friends with the deceased) had told him who they believed was involved in the offending.[51]
[50]T171.16–20.
[51]T173.4–13.

The defence also submits that there is a lack of evidence establishing the basis for TH’s assertion that one of the males goes by ‘[SA Nickname]’ and ‘I know it was him’. TH did not provide a description of the person he saw or his recollection of their physical features, and whether he had seen that person before.

Finally, the defence submits that while TH uses the first person narrative, the Court should not be satisfied on this basis alone that the representation is first-hand hearsay. The defence points to the following passage from TH’s evidence which it submits illustrates the danger in assuming that the assertion ‘I know’ is based on personal knowledge:[52]

You said that you didn’t see – well, you didn’t see the face of anyone in the car, and that’s because you don’t remember seeing one, is that right?---No, I don’t remember seeing a face. I – I – all I got is that there were two people in the front. That’s all I know.

[52]T164.29–31; T165.1–2.

TH gave a first person account of what he knew and who he identified when speaking with Ferguson and Ryan. Ryan records a first person narrative in his notes.[53] Ryan gave evidence that it was clear to him what were direct quotes from TH and those that were not.[54] TH was present during the events in question. On 14 March, there is no evidence that TH ever told Ferguson or Ryan that his information was second-hand. He spoke in the first person about what he saw, heard and perceived. I consider that even though TH was reluctant to provide police with any information at the scene or on 14 March, there was a desire to assist. It cannot be said that he did not want to provide any assistance, but rather a reluctance because he did not want to be perceived as a ‘snitch’ or may have been concerned about repercussions.
[53]T449–450.
[54]Ibid.

The defence submits that TH’s ability to recall was affected by his use of illicit drugs on that night. At the time he spoke to Ferguson and Ryan, TH was walking, talking and coherent. Ryan said he was able to understand TH very clearly and that TH understood him very clearly and he was responsive to their conversation.[55] Ryan’s evidence is consistent with the night before when TH was speaking to the police at the scene. Having observed exhibit P8, the body worn camera footage of Taylor, I consider that TH was lucid and able to provide information about what he saw, heard and perceived. He was clearly distressed by the circumstances but there was no suggestion that he did not understand questions put to him or was not able to provide appropriate answers.
[55]T433.26–29.

I consider that the real issue with TH is that he was a reluctant witness, which could be seen by the manner in which he gave evidence, and his unwillingness to provide a statement in this matter on the night in question or the following day.

I consider he was able to recall details of the confrontation in Nocton Street and give some level of specificity to what happened when he, KH and the deceased were confronted. For example, TH was asked:[56]

Question: Did you see where [the deceased] went?
Answer:Yeah. We were running – we were altogether for, like a couple of minutes, and as we were running, everyone was running straight and everyone just split up out of nowhere. And that’s when I looked to my left, and I seen my cousin was gone. I looked to my right, I seen [the deceased] was gone. And I was still getting chased though, you know.

[56]T135.30–31; T136.1–5.

In his evidence TH was asked by the prosecutor whether anybody got out of the car and he said, ‘[w]ell, like I said, we were exchanging some words for a bit, and then, um, I’m pretty sure the car turned back on, parked across, and then, ah, that’s when everything happened’.[57]
[57]T134.10–13.

I have reviewed Exhibit P143, the CCTV footage from Nocton Street, Reservoir on 13 March at 2:26am. The interaction between TH and the car that stops is very brief. However, TH and the other two boys, the deceased and Kale, are engaging with the people in the car, and given their proximity to the car, may have been able to see the people in it. TH is there for enough time for at least one of the people in the car from the passenger side of the vehicle to alight and start running.

During the conversation with Taylor, TH was asked ‘why are you running?’. He answers, ‘because you’re going to be stabbed’. Taylor goes on to say, ‘you know what’s going on – your mate’s in a bad way’. TH says, ‘I’m no snitch – if I could explain – who these people were I would – it was a full car definitely, not too big – I saw a bunch of black fellas – I saw one with hand and could barely ... a medium size car, colour black’.[58] Shortly after the latter exchange, TH repeats ‘I’m not going to snitch’. Taylor says to him, ‘you’re not snitching. You’re helping us figure out what’s happening’. TH responds, ‘that’s snitching. I don’t do that’.[59]
[58]Exhibit P8.
[59]Exhibit P8.

On 14 March during the interview with Ryan and Ferguson, Ryan’s evidence is that TH referred to the males involved in the incident as being from Tarneit, and Ryan recalled TH saying, ‘that’s your only hint’.[60]
[60]T449.27–27.

The evidence is consistent with TH being reluctant to talk to the police on the night of the incident rather than not having a memory as of 14 March, or not having seen who might be in the car or who chased him. The interview with Ryan and Ferguson was not terminated by TH, but at the request of a person in the house and subsequently TH’s father.[61] It is also consistent with TH in his own way, wanting to provide some assistance to the police.
[61]T438.22–26.

I consider the evidence does not go far enough to rule out the representations on the basis that the representations are not first-hand hearsay. TH’s evidence about what he heard from other people or sources was limited. He recalled that after he got out of the police car, he was in the area for a bit, and he remembered his cousins came down and they were talking. He did not recall the content of the conversation, but said what he had been told and that he apparently jumped into the back of his cousin’s car, and they were chilling a bit and then left.[62] He did not remember where he had been dropped off. He said that nobody was with him for the whole time he was at his father’s house,[63] he was in shock and just didn’t understand what was going on at that point.[64]
[62]T166.28–31; T167.1.
[63]T167.11–12.
[64]T167.5–7.

TH also said he recalled using social media the day after the deceased died. He remembered going to the spot where the deceased was killed on 14 March and putting flowers at the tree near where the deceased died. He said he used Snapchat during that time and was not sure if KH was there.

On behalf of SA, TH was asked in cross examination:[65]

Question: Did you have discussions with other people that were there, when you were at the tree, about messages that were being posted online about [the deceased]; is that right?
Answer: I’m not too sure. I wasn’t really talking with anyone like that. Like – because there was no one that was, like very close. Like it was people that knew him – hundred percent – but, like, I wasn’t really talking much with them. Like, I was just there to put my flowers there, and then I seen her – [the deceased]’s mum. Then, like, I was talking with his mum, and, like, we were just talking, and , you know, she was very sad, so I – like, I was just hugging her. And then that’s when we end up leaving. And then my cousins ended up coming to grab me, and then – yeah, they took me back to mum’s house.

[65]T168.18–31.

He was asked if he spoke to his cousin KH after he left the Coburg area in the early hours of the Sunday morning and when he next saw KH. TH said that he did not see KH for a while as he had been sent away by his mum for a while and he did not see anyone for ages.[66]
[66]T169.11–19.

TH was specifically asked if he spoke to KH on March 13 or 14 about the deceased’s death. He replied ‘I don’t remember, but I dunno. Maybe. I’m not sure.’[67] He was asked:[68]

Question: Is it possible that one of them said to you, ‘This is a person I believe was involved’?
Answer: Maybe, bro. And I – I – I’m being honest. I really do not know, because how – of how far back that was. So much has happened since then. You understand?

[67]T170.7–10.

[68]T173.4–8.

TH spoke to Ryan and Ferguson at approximately 12:25pm on 14 March at his father’s house. There is no evidence that TH was told by someone else who was involved in the incident or who might have been in the car. Ryan and Ferguson attended on KH on 14 March, prior to seeing TH. They asked KH about the incident and what had occurred and requested him to provide a statement and account, but he refused.

At most, in cross-examination, TH indicated that he had been told things, but he did not go as far as to say that everything he told the police on 14 March was what he had heard from someone else.[69] The thrust of his evidence on that point was that he could not recall the police attending or what he told them.[70] Even if TH had talked about the incident from the time he was at the crime scene talking to police to when he spoke to Ryan and Ferguson, it does not mean that what he told the police on 14 March (approximately 10 hours later), was not based on something he saw, heard or perceived.
[69]T171–T173.
[70]T140; T145; T149; T150; T152; T153; T172; T173.

Indeed, TH’s comments to Taylor on 13 March that the car was full and that the occupants were ‘black’ were not expressed in a manner which suggest that the information contained in them was anything other than his own observations and perceptions. At that point in time they could not have been anything else. His alleged representations on 14 March, including his identification of SA in the car, are also expressed as something he saw or perceived

Those statements, as well as his alleged statement on 14 March that other than SA, the people in the car were just ‘kids’, are also significant in that they suggest he was close enough to see that the occupants of the car in sufficient to detail to identify that they were young.

In summary, in light of all the evidence, I consider that it is open to find that the representations are first-hand hearsay, based on the fact they might reasonably be supposed to have been based on something TH saw, heard or perceived.

Does the evidence come within one of the exceptions to the hearsay rule?

The prosecution relies upon s 66 of the EvidenceAct as an exception to the hearsay rule in s 59. As already discussed, for purposes of sub-s 66(1), TH was clearly available to give evidence about an asserted fact. In relation to s 66(2), it is necessary to establish:

(a) the person has been called to give evidence; and

(b) when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation.

Both prerequisites are satisfied in this case. As discussed, TH was called to give evidence. The representations were made a day after the asserted facts occurred. It was fresh in TH’s memory within the meaning of the section. The evidence of TH’s previous representations are therefore admissible under s 66.

Section 137

The defence submits that the representations should be excluded under s 137 of the EvidenceAct. That section requires the Court to undertake a balancing exercise of the probative value of the evidence against the danger of unfair prejudice to the accused. If the probative value of the evidence is outweighed by the danger of the unfair prejudice to the accused, the evidence must be excluded. There is no residual discretion.[71]
[71]IMM v The Queen (2016) 257 CLR 300.

In R v BD, Hunt CJ explained the meaning attached to prejudice in this context as follows:[72]

The prejudice to which each of the sections [ss 135, 136 and 137] refers is not that the evidence merely tends to establish the Crown case; it means prejudice which is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way.

[72]R v BD (1997) 94 A Crim R 131, 139 (emphasis in original) (citation omitted).

For the evidence to be prejudicial it must be of a kind that will provoke an irrational or emotional response; or be given more weight by the trier of fact than it deserves; or be ‘misused in a manner that is logically unconnected with the issues in the case’.[73]
[73]DPP v Lu (Ruling No 1) [2022] VSC 162, [45].

When assessing the probative value of the evidence in question, the Court can consider the extent to which the evidence supports other evidence or is supported by other evidence. The representations should not be considered in isolation when assessing the probative value.

The defence submits that there are a number of circumstances relating to the evidence that render the representations as having scant probative value:

(a) CCTV footage from Nocton Street captures the interaction between TH and the offending vehicle. The interaction was fleeting, and the street appears to be poorly lit and dark (as indicated by TH to Taylor). The back left passenger in the vehicle would have been furthest away from TH;

(b) TH was asked by Taylor whether there was ‘anything distinctive looking about them?’, TH told her ‘I couldn’t see, I only saw one and that was the head and I couldn’t even see him barely’.[74]
[74]Exhibit P8.

(c) TH told Taylor that ‘I walk out to a car of n****s pull up. Are you [TH]? Bang. And I didn’t know what happened. I just ran off’;[75]
[75]Ibid.

(d) TH told Taylor that ‘I happened to walk outside as we were leaving, going to see my cousin. Bang. Car pulls up – “are you [TH]? Are you [TH]?” I couldn’t even do anything because they’ve got the head start on me’;[76]

(e) TH told Taylor that ‘I dunno who done it, otherwise I would be telling you right now, car pulled up, black people jumped out, I ran’;[77]

(f) Taylor asked TH for a description of the vehicle, he answered ‘I could barely see, you’re not going to be looking at the car when you’re going to try and run’, TH further stated ‘All I saw was a black person. That’s the only description. Nothing else’.[78]

[76]Ibid.

[77]Ibid.

[78]Ibid.

The evidence relied upon by the defence in relation to the probative value of the representations takes into consideration additional evidence, the CCTV footage of the confrontation in Nocton Street and some of the comments made by TH shortly after the incident at the crime scene. However, the representations need to be considered against a whole body of evidence, including that submitted by the defence, and:

(a) CCTV of the offending itself;

(b) the recordings of HP;

(c) the photographs provided to detectives identifying [SA Nickname];

(d) the other representations sought to be admitted; and

(e) circumstantial evidence supporting the identification of SA, including but not limited to:

(i) telecommunications evidence;

(ii) mobile phone evidence; and

(iii) clothing depicted.

I accept the representations made by TH to the police do not provide details of the surrounding circumstances of the purported identification. However, there is enough evidence before the Court for an assessment of that to be made, such as the Nocton Street footage and TH’s comments to police in the early hours of 13 March.

In this case, each witness has been available for cross-examination, and it will be a question of weight for the Court to establish what significance is placed upon this evidence. The issue of appropriate weight to be given to evidence does not render the evidence inadmissible. Further, as Kaye JA stated in Asling:[79]

[E]xperience has demonstrated that an appropriate judicial direction, concerning those aspects of hearsay evidence, is ordinarily sufficient to offset the disadvantage otherwise accruing to the defence arising from the admission of such hearsay evidence.

[79]DPP v Asling (No 2) [2017] VSC 38, [57].

As this is a trial by judge alone, I will of course have regard to the potential unreliability of hearsay evidence when assessing the evidence.

The defence submits that the deficiencies in TH’s purported identification and the ability to cross-examine him to test the reliability of the identification evidence (due to his lack of memory) leaves the Court in a position where it is deprived of the opportunity to scrutinise the purported identification. Further, the lack of the evidence regarding the surrounding circumstances necessitates speculation.

As already discussed, the assessment of TH’s purported identification will be a matter of consideration in the context of the entirety of the evidence. It will be a question of the weight given to TH’s purported identification rather than at this stage rendering it inadmissible.

I consider that the evidence of TH’s representations to Ryan and Ferguson are relevant and admissible and do not accept that the probative value of this evidence is outweighed by any danger of unfair prejudice to the accused.

Alleged admission of DM

I now turn to DM’s application relating to an admission allegedly made by him to his mother, AG. In a conversation with Herbert on 23 March, AG communicated an admission alleged to have been made by DM to her. However, in her evidence at trial AG denied that DM said those words to her.

Exhibit P42 is a micro recording of the conversation between AG and Herbert on 23 March. DM does not object to the admissibility of the micro recording and concedes it is relevant and goes to a fact in issue; his presence at the time of the attack on the deceased.

However, DM submits that the micro recording is not admissible as an admission by DM to AG as opposed to being admissible as against AG as a prior inconsistent statement going to her credibility. DM submits that even though the micro recording evidence is admissible, it ‘should not be admitted wholesale’ and pursuant to s 136 of the EvidenceAct, its use should be limited.

AG was called as a prosecution witness and gave evidence in DM’s trial on 28 November 2023.

The circumstances surrounding the alleged admission (‘the admission’) have been the subject of two previous rulings by the Court.[80] The prosecution accepts that other than the admission, there is no relevance to AG’s evidence to a fact in issue.
[80]DPP v SA (Ruling No 4) [2023] VSC 661; DPP v SA (Ruling No 5) [2023] VSC 695.

I will adopt the prosecution’s breakdown of the representations. AG’s evidence concerns two different representations:

(a) the admission by DM to AG, that he kicked the deceased but he did not kill him. DM said he did not know who did the killing because he ran away (‘PR1’); and

(b) the representation by AG to Herbert that her son made PR1 (‘PR2’).

The prosecution submits that the first sentence of PR1, that DM kicked the deceased but did not kill him; and the second sentence, that DM did not know who did the killing because he ran away, are capable of amounting to an admission since each admits DM’s presence at the scene, in circumstances where his identify is the primary issue in dispute in his trial.

The prosecution submits that the evidence of PR1 is relevant and admissible as a first-hand admission under Part 3.4 of the EvidenceAct. The evidence comes from AG’s oral testimony as a person who saw, heard or otherwise perceived the admission being made.

On the basis that PR1 is admissible, the prosecution submits that evidence of PR2 is admissible:

(a) as a prior inconsistent statement of AG; and

(b) as an exception to the hearsay rule under s 66 of the EvidenceAct.

Herbert’s evidence

On 23 March, Herbert was involved in DM’s arrest from his home just after 7am. AG was home at the time. DM was transferred to Werribee Police Station at 9:29am. A record of interview was commenced with DM and AG was present.[81]
[81]Exhibit 41.

At the conclusion of the interview, but prior to DM being fingerprinted, Herbert allowed DM to speak with AG in private. The conversation went for approximately 10 minutes, after which Herbert opened the door and saw DM and AG were visibly upset. DM was on the phone to a female who identified herself to Herbert as being DM’s sister. DM was then walked with AG to the fingerprint area. At this point, AG asked Herbert if she could view the CCTV footage of the attack on the deceased which had been shown in the interview. Herbert said ‘yes’, and they went and sat in an interview room at the front of the police station. During that conversation, which commenced at 1:10pm, Herbert ran a covert, micro recording.[82]
[82]T653.5–10.

Herbert’s evidence was that when he was in the interview room with AG, AG said that DM told her in private that he kicked, didn’t kill and then ran away, or words to that effect.[83] Later that same day, at 2:27pm, Herbert attended AG’s home to obtain a written statement from her.[84]
[83]T653.20–27.
[84]T654.16-17.

The micro recording of the conversation that commenced at 1:10pm (recorded by Herbert) was played and exhibited.[85] It is 21 minutes in length and commenced approximately 50 minutes after the conclusion of the record of interview. During the micro recording, AG refers to the alleged admission on three separate occasions:
[85]Exhibit P42.

(a) at the 5:44 mark, AG volunteers: ‘The one he told me, after he said – after … he just said “Mum I didn’t kill him, but I kick”... I said “Who is kill?”, I said – he said, “I don’t know because I run away”’;

(b) at the 7:31 mark, in response to Herbert identifying Male 3 as DM, AG states, ‘maybe, because he said “Mum, I kick but I didn’t see who kill”. I said “Who is kill then?” He said, “I run away”’; and

(c) at 10:16 mark, in response to Herbert explaining DM’s right to say no comment, AG states, ‘yeah because I ask him, “why you said no comment for everything?”, because he said “I didn’t see who kill”’.

Herbert also gave evidence in relation to taking a statement from AG later that same day. In cross-examination, he agreed that he did not show AG the CCTV footage again while he was at her home in the process of taking the statement,[86] and that AG did not have an interpreter available to her in the course of taking her statement. On behalf of DM, Herbert’s credibility in relation to taking the statement was attacked. However, while Herbert’s credibility was strongly challenged in cross-examination, it was never suggested that AG had not made PR2 to him, nor could it be suggested given PR2 was recorded.
[86]T658.17.

For completeness, it was suggested in cross-examination that Herbert had added some of the admission into AG’s statement based on the micro recording. Herbert denied this and in re-examination said the information in paragraph [6] of AG’s statement was said by her and he wrote it down.[87]
[87]T667.26–T668.2; T679.30–31.

AG’s evidence

During AG’s evidence at trial, the prosecution was granted leave pursuant to s 38 of the EvidenceAct to cross-examine AG. AG was also cross-examined on behalf of DM. During AG’s evidence, the following exhibits were tendered:

(a) paragraph 6 of the statement of AG dated 23 March:[88]
[88]Exhibit P21.

6.‘I asked [DM] if he was a killer. He said, “no, mum. I kicked him but I didn’t kill him”. I asked [DM] who did the killing and he said he didn’t know because he ran away’.

(b) portions of the transcript, 9 November 2023 preliminary hearing (lines 5-7, page 86):[89]
[89]Exhibit P22.

Line 5: Okay, where did he get the information from the statement?
Line 6: Where did he get the information – he asked me question, then I replied to him.

(c) portions of the transcript, 9 November 2023 preliminary hearing (lines 20-23, page 84):[90]
[90]Ibid.

Line 20: Okay, I think that covers that. Other than the changes you wanted to make to paragraph 10 of your statement, were there any other changes that you wanted to make to the statement?
(through interpreter): ‘No’.

(d) portions of the transcript, 9 November 2023 preliminary hearing (lines 8-14, page 86):[91]
[91]Ibid.

Line 8:So you said a moment ago that there was nothing else you wanted to change in your statement?

Answer:        I told you about paragraph 10.
Question:       You did. Nothing else?
Answer:        Nothing else.
Line 12:So, with the amendments that you’ve made to paragraph 10, are the contents of the remainder of your statement true and correct?

Answer: Yes.

(e) audio recording on 23 March from 05:35:[92]
[92]Exhibit P23.

AG:The one he told me after he said – he say, ‘Mum’ – he just say ‘I didn’t kill, but I kick’.

Herbert:        He said ‘I didn’t kill him but I kicked him’.
Herbert:        This is an – ah, I’ll explain it for you.
AG:               In a group. He said ‘I kicked but I didn’t kill’.
Herbert:        He didn’t stab him.
AG:               Yes.
AG:I said ‘Who is kill?’ – he said ‘I don’t know because I run away’.

(f) audio recording of 23 March commencing at 07:20:[93]

Herbert: And does not come back. We say [DM] is number 3.
AG:Maybe because he say ‘I kick but I didn’t kill’ – I said ‘Who kill?’ then – he said ‘I run away’.

[93]Ibid.

AG gave her evidence via an interpreter at trial. She was a reluctant and often uncooperative witness. From the outset, AG indicated she did not want to talk about her son’s arrest.[94] When pressed for details of any conversation between her and DM after the record of interview, she said: ‘my talk with my sons is something that is finished and done. I don’t think it’s part of something you need to ask me about’.[95] AG then said: ‘I am not prepared to repeat all what I said between me and my son’.[96]
[94]T540.14–30.
[95]T542.22–24.
[96]T542.29–30.

AG did not want to disclose the contents of the conversation with her son after the record of interview. She did not initially suggest that she could not remember the conversation she had with DM. It was only after a direction by the Court to answer the question truthfully, that AG said she could not remember:[97]

Question: What was the conversation at that point?
Answer: I don’t remember.

[97]T543.6–7.

Following an application pursuant to s 38 of the EvidenceAct, AG confirmed that she was alone with her son in the interview room and that he was upset.[98] AG was asked:
[98]T543.14–21.

Question:And at that point in time you asked him if he was a killer, correct?
Answer:Look, I said already that I don’t want to talk about anything to do with the killing. Otherwise, if you want to arrest me, then I’m better to go myself.
Question:[AG], at that point in time, you asked your son if he was a killer, correct?

Answer: I said earlier on I don’t want to talk about it.[99]

[99]T543.25–31.

AG repeatedly said that she did not want to talk about the attack, including what DM told her. Following another direction by the Court to answer the question truthfully the following exchange occurred:[100]
[100]T544.28-29; T545.1–17.

Question: Yes. [AG], at that point did you ask your son if he was a killer?
…
Answer:Yes. I asked him whether it was the group that has executed the killing or him. I asked him that question, yes.

Question: You asked him if he was a killer, correct?
Answer:Actually, you’re making me a [sick] and [sick] for repeating the same question.

Question: Well, can I just have a yes or no?
Answer: I already said of course, and of course means yes.
Question:And did he respond to you, ‘No, mum. I kicked him, but I didn’t kill him’.

Answer: No.
Question: No, you say that he didn’t say that?
Answer:Ah, he told me clearly that he did not do the killing, but he did not put in the kicking.
Question:Well, [AG], I suggest he did say to you that he kicked him, but he didn’t kill him?
Answer:Ah, he said, ‘I’m not part of it. Insteads, I runs away then’, because they were going to the party. When they return and when there was fighting, what he did was the running away.

AG agreed that she had previously given evidence that her reading was limited and that her English was ‘very little’.[101] She was asked if she remembered her evidence in relation to the making of the statement and how the police officer who took the statement got the information contained in the statement. AG said she could not remember.[102]
[101]T550.19.
[102]T551.14–18.

AG agreed that she may have read some of the statement before giving her evidence at the preliminary hearing,[103] and that she had read a typed version but not the handwritten version of the statement prior to giving her evidence.[104] She agreed that at the preliminary hearing she made a change to her statement and said she could not recall being asked whether there were any other changes she wanted to make.
[103]T552.14–17.
[104]T552.21–22.

AG was then played the micro recording of her conversation with Herbert. AG agreed that it was her voice on the micro recording. AG was asked whether she told Herbert that DM told her that he kicked the deceased.[105] AG provided a series of non-responsive answers and said that ‘DM lied to me, he did not tell me the truth’.[106] AG was then asked:

Question: And that’s the truth, isn’t it? That’s what DM told you?
Answer:The voice there is truly my voice, but the message DM was telling me, whether it is true or not I’m not standing by.[107]

[105]T559.29–T560.1.

[106]T560.14–16.

[107]T560.19–22.

In relation to what AG told police, she said:[108]
[108]T559.29–T560.1; T560.8–10; T560.13–T560.22; T560.25–T561.9.

Question:And what you told police is that DM said to you that he kicked the deceased. Do you agree?
Answer:Yeah, like the record showing that it is me, but I don’t remember, but it might – if that’s all what I put.

…
Question:[AG], it’s the truth, isn’t it, that DM told you he kicked the deceased?
Answer:I will not believe and it’s simple because I was not present at the time of the action.

…
Question:And you heard yourself tell police that DM told you he kicked the deceased. Agree?
Answer:Ah, I don’t know with the way you were taking it, but DM lied to me, did not tell me the truth. What would it – how will you take that?
Question:[AG], all I’m asking you is, did you hear yourself tell police that DM kicked the deceased?

Answer: I – I heard it.
Question: And that’s the truth, isn’t it? That’s what DM told you?
Answer:The voice there is truly my voice, but the message DM was telling me, whether it’s true or not true I’m not standing by.

…
Question:Sorry. I’m only asking you; it’s the truth, DM told you he kicked the deceased?

Answer: I – I don’t believe if it is true.
Question:Just so I understand your answer. Are you saying that it’s true he told you, but you’re not sure if the statement itself is true?
Answer:I won’t believe the truth of it because I was not in the presence of that thing happening and I was not present how it was done. Whatever being said might have been said but I don’t think that is true.

Question:       Would you agree he said it?
Answer:        What is stick in my mind a lot is that he runs away.
Question:       [AG], do you agree that he said it?
Answer:What I give the answer no, what would be expected answer again.

Question:       [AG], do you agree DM said to you that he kicked the deceased?
Answer:        I don’t agree.
Question:       [AG], are you lying to protect your son?
Answer:        I’m not lying, the law is even watching. I can’t lie.

The same portion and additional portions of the micro recordings were played to AG and she was asked again if she agreed that she told police on three occasions that DM had told her he kicked the deceased. AG was asked by the prosecutor:[109]
[109]T561.18–T562.7.

Question:[AG], having heard those two recordings, do you agree that you told the police on three occasions DM told you that he kicked the deceased?

Answer: It is after we heard it sitting down with the detective, yes.
Question: And that’s the truth?
Answer:Are you asking me whether what I said with the detective is true, or is that what DM said is true?
Question:What I’m asking you, is it true that DM said to you that he kicked the deceased and that’s what you told the police?
Answer:I – that’s where I spoke with DM in the – after the interview and it was when he was requesting me to look for the lawyer. But he was saying that ‘I’m not involved in the murder or in the killing because I run away’. That what he told me.

Question: He also told you he kicked the deceased, agree?
Answer:Ah, the situation there might – it might be true. Might have said that, but at that time, it was very provocative situation. My mind was not stable because there was a big attack in the house where – and people were taken away. If I’ve said something, it might be applying to that time, and I wish I would not have spoken anything at that time.

In cross-examination AG was asked:[110]
[110]T573.8–30.

Question:       Did you say to the police ‘I asked DM if he was a killer’?
Answer:        Yes, I asked the question.
Question:       Of DM?
Answer:        Yes.
Question:       And did you tell the police you asked the question?
Answer:Yeah, the police asked me, ‘What did you say? What – what did you discover with your son?’ and I said that ---

Question:       Okay, stop. Did you say to the police, ‘He said, “No, mum”’?
Answer:        Yes. He told me, ‘Mumma – ah, mum, I did not kill’.
Question:       Did he say to you, ‘I kicked him, but I didn’t kill him’?
Answer:Ah, anything like, ah, if he kick it and he did not kill. It’s all of the time. I don’t remember a lot. What I – what I remember a lot is that he told me that he – he runs away. That’s what I remember.

Question:       Did he say, ‘I kicked him, but I didn’t kill him’. Yes or no?
Answer:        No.
Question:       Why did you sign a statement that said he did?
Answer:Ah, at the moment, let me put myself – assume that I was somebody with mentally crazy.
Question:When you signed the statement, with the police in your house, did you understand that was in the document?

Answer: I did not understand lots of them.

Paragraph 10 of AG’s statement was read to her in cross-examination: ‘[h]e came with a knife and kicked the boy on the ground then ran away’. AG was asked:[111]

Question: Did you ever say that to a policeman?
Answer:Yeah. Like, it was being recorded, yeah. I didn’t know that there was – ah, he did recording behind me, and even the interview finished, I was told – to say bye to my son. That’s all I know.

[111]T571.28–T572.1.

It was later put to AG that the reason she told the police that she thought she saw him kick (on the CCTV) because she thought that would help DM. She replied, ‘I didn’t have any thinking of that. What I was thinking through my mind is what is being said by DM that he ran away. That what I remember, but I do not have thought of that’.[112]
[112]T577.31–T578.3.

It was suggested that AG lied to the police about what her son had said because she thought it would help him. She stated ‘maybe’.[113] Relevantly, the evidence included:[114]
[113]T579.9; T579.20–31.
[114]T579.22–T579.31; T580.6–12; T580.16–17; T580.18–22.

Question:So you told the policeman that’s what your son said, because you thought it would help?
Answer:Ah, the only belief I had is not what I say. What the police knew and the material from the picture will guide them. Not me. It will help them or not help.
Question:But the question I’m asking you is why you said what you said on the recording. And you can accept or reject it, but the reason you said it was because you thought it would be the best thing for your son. Correct?

Answer: (through interpreter): Maybe.
…
Question: But you wanted him to talk. You wanted to say he just kick?
Answer:What I ask of him is to tell the truth. If he’s involved in the killing and not involved, let him be standing in the truth. And he says he doesn’t want to say anything, and that’s what he told me. And I was telling him to tell the truth around then, to say what or not to say what.

…
Question:       So you volunteered the information on his behalf?
Answer:        I don’t remember if that is.
…
Question:       Even though he - - -
Answer:        I don’t know – I use the wrong word, I don’t know.
Question:       I don’t know. Even though he never said those words to you?
Answer:Yeah, what I remember from him saying is ‘running away’, yes.

Later in her evidence, AG was asked in cross-examination:[115]
[115]T582.3–11; T582.13–18; T582.22–24.

Question:You thought the best thing was to tell the police he kicked, yes or no?

Answer: Yes. Finish.
Question:But he – not finished. But he never ever said that to you? Did he?
Answer:Ah, like I said before in many ways, I said before I don’t want to talk about this and I said another thing before that I’ve just said yes at the time, if I lied, let be.
Question:No. Answer this question. Answer it yes or no. He never said to you that he kicked him, did he?

Answer: Yes.
…
Question: He never said it, did he?
Answer:I think the best answer that I give yes mean what you say to – you narrate to me is different to the answer of yes.

Question:       Sorry, Mr Interpreter. Could you give me that again?
Answer:        (Direct): I said yes. Yes.
…
Question:       Are you saying he did say it to you?
Answer:No. Let me put it this way. DM did not tell me that. I said it myself.

In re-examination, AG agreed that when she spoke to the police on 23 March, she was doing her best to tell the truth. AG said her son was not happy with what she had done.[116] AG was asked about whether what she told police was true and said:[117]

Let me just go to what I say to – long ago when other lawyer was asking me if I was lying. Yes, most of the thing there, I was lying. Let it be the way to take from there.
[116]T583.3–15.
[117]T583.17–20.

Analysis

DM accepts that PR1 and PR2, are admissible pursuant to either ss 103 or 106 of the EvidenceAct. However, he challenges that the evidence is admissible pursuant to s 66.

PR1 is a previous representation by DM, and adverse to his interests in the outcome of the proceeding. It is an ‘admission’ within the meaning of Part 1 of the Dictionary to the EvidenceAct. In order to be admissible, the evidence of PR1 must come from AG as a person who saw, heard or otherwise perceived the admission being made. Section 82 of the EvidenceAct requires:

Exclusion of evidence of admissions that is not first-hand
Section 81 does not prevent the application of the hearsay rule to evidence of an admission unless –
(a)it is given by a person who saw, heard or otherwise perceived the admission being made; or

(b) it is a document in which the admission is made.

PR1 is relevant in that it goes to the central fact in issue in this case, namely DM’s identity and whether he was present at the attack on the deceased. DM denies making PR1 to AG.

PR1 was allegedly made by DM to AG. It is alleged that DM said to AG on 23 March that he kicked the deceased but did not kill him. He said he did not know who did the killing because he ran away.

The prosecution relies on PR1 as an admission by DM, submitting that it is open to the Court to infer, having regard to all the evidence — including AG’s evidence — that DM said PR1 because he was at the scene and a party to the alleged joint criminal enterprise with the other seven offenders. The prosecution relies on PR1 for the truth of the asserted fact.

AG’s evidence of the making of PR1 engages the exclusionary hearsay rule pursuant to s 59 of the EvidenceAct, but since it was an admission, the hearsay rule does not apply pursuant to ss 81 and 82.

In this case, there is also Herbert’s evidence that PR2 was made by AG to him at the police station on 23 March.

The prosecution relies on the evidence of the making of PR2 as indirect evidence that DM made PR1.

DM denies making PR1 and disputes that AG made PR2. The micro recording puts to rest any suggestion that AG did not tell Herbert of the alleged admission on three separate occasions.

The fact in issue in relation to PR1 is whether DM made the admission. DM submits that AG lied when she spoke to Herbert because she thought it would help her son.

AG’s evidence, as demonstrated by the various extracts, was at times confusing and inconsistent. Her cross-examination concluded as follows:[118]

Question: Are you saying he did say it to you?
Answer:No. Let me put it this way. DM did not tell me that. I said it myself.

[118]T582.22–24.

That is, AG agreed in cross-examination that she lied to Herbert because she thought it might help DM’s case.

Having considered all of AG’s evidence, I consider that AG did not lie to Herbert and did not make up PR1 for the purpose of helping her son.

A proper and full analysis of AG’s evidence reveals that AG did not lie to Herbert. When asked in cross-examination if she lied to Herbert to help DM, AG said, amongst other things, the following:

(a) she denied that as she was leaving DM, Herbert said that if she spoke to him it would help DM;[119]
[119]T577.2–7.

(b) when asked if when she met with Herbert to watch the video she wanted to help her son, she said that she ‘did not mean to help [DM]’, but what she meant to say was ‘to help to get the right thing’, whether her son had committed an offence or not;[120]

[120]T577.17–21.

(c) she was not thinking of helping her son. At the time, she was thinking that DM told her he ran away, but she did not ‘have any thoughts’ that telling Herbert that DM kicked would help DM in any way.[121]
[121]T577.31; T578.1–3.

(d) after having the micro recording played again in cross-examination— and in particular the line where she is recorded saying ‘I saw him kick’— AG said she did not think it would matter what she said, that is, ‘I saw him kick’, it would not have helped him. AG went on to say that the CCTV and ‘everything being there would help’. AG continued and said, ‘forget my voice, but what exactly happened there’;[122]
[122]T578.22–26.

(e) it was put to AG that the reason she told the policeman that DM said he kicked was because she thought it would help her son to say that. AG said, ‘Why would you not excuse me and make use of the materials that you already have, that you saw from the CCTV and leave me alone’;[123]
[123]T579.3–7.

(f) towards the end of her cross examination, it was put to AG that she lied to the police officer about what DM said because she thought it would help and she said, ‘maybe’;[124]
[124]T579.8–9.

(g) AG was asked that if she thought DM was just kicking, he could not be connected to the murder and she said, ‘maybe’;[125]
[125]T579.20–22.

(h) AG answered ‘maybe’ in relation to the proposition that she had lied to the police to help her son on two occasions, once directly and once through the interpreter;[126]
[126]T579.27–31.

(i) AG was asked, ‘But you wanted him to talk. You wanted him to say he just kicked.’ AG said that what she asked of DM is for him to tell the truth, ‘if he’s involved in the killing and not involved, let him be standing in the truth. And he says he doesn’t want to say anything, and that’s what he told me. And I was telling him to tell the truth around then, to say what or not to say what’;[127]

(j) AG then said she did not remember if she volunteered the information on DM’s behalf;[128] and

(k) Following from that, AG said that what she did remember was DM saying ‘running away’.[129]

[127]T580.6–12.

[128]T580.16–19.

[129]T580.20–22.

It was only after this line of questioning and responses AG was asked, ‘you thought the best thing was to tell the police he kicked. Yes or no?’ and she answered, ‘yes. Finish’. AG went on to say that she did not want to talk about this and, ‘I said another thing before anything that I’ve said yes at the time, if I lied, let it be’.[130]
[130]T582.5–9.

AG’s evidence that she lied came at the very end of the cross-examination when she appeared broken and desperate to end her time in the witness box. I consider AG was not truthful when she said she was lying because she thought it would help her son. Her evidence on this point is confusing, implausible and far from convincing. AG’s answers in cross-examination need to be understood in the context of her evidence in its entirety. To that end:

(a) AG was not prepared to repeat all of what was said between her and her son. She did not want to reveal the answers he gave to whether he was a killer. While it is possible this may have reflected a reluctance to reveal that she had lied to the police, I consider the better and stronger inference, when taken with other evidence, is that she did not want to reveal incriminating comments by her son.

(b) When asked directly if DM told her he kicked the deceased, she said: ‘the situation there might – it might be true. Might have said that …’

(c) AG’s evidence was consistent that she did not want to believe the truth of PR1 because she was not present at the offending scene. This supports the fact that PR1 was made.

(d) AG’s answer that she ‘will not believe and it’s simple because I was not present at the time of the action’, is a reference to her refusal to believe the truth of PR1 because she was not present at the offending scene which is consistent with the fact that PR1 was made. This is consistent with AG’s answers that ‘I don’t believe if it is true’ and ‘I won’t believe in the truth of it because I was not in the presence of that thing happening. Whatever been said might have been said but I don’t think it’s true’.

(e) In the context of the second sentence of PR1, AG gave evidence that DM told her he was not part of it, ‘instead I runs away then’. This directly supports the existence of the second sentence of PR1. AG stated that her son told her what he did was run away and that he clearly was not a killer. This evidence again directly supports the second sentence of PR1.

(f) AG was asked if DM said the first sentence of PR1 and she said what stuck in her mind a lot was that he runs away and she later said, ‘that DM was saying, “I’m not involved in the murder or in the killing because I run away”. That’s what he told me’. Later on, AG said, ‘what I remember a lot is that he told me that he – he runs away. That’s what I remember’.

(g) Finally, in her evidence at the voir dire, AG said, ‘yes. That’s what he told me, that he runs away. He was not amongst …’. Later, AG said ‘… what I remember a lot is that he told me that he – he runs away. That’s what I remember’.

AG’s evidence strongly supports an inference that she was reluctant to reveal the admission, particularly the first sentence, and in doing so repeatedly acknowledged its existence but sought to downplay its veracity.

I consider AG’s evidence in relation to both sentences in PR1 is that she was most reluctant to reveal the full admission and was only willing to admit that DM told her he ran away. At the very commencement of her evidence, after being directed by the Court to answer questions, she said she did not want to say anything. AG repeatedly agreed that parts of what DM said were true, in particular that DM ran away and that he did not know who did the killing because he ran away. It is understandable that AG sought to downplay the veracity of PR1, particularly the first part of the sentence.

I consider there is an evidentiary foundation in AG’s evidence of PR1 and that PR1 should be admitted as a first-hand admission.

PR2 concerns a reporting of the alleged admission by AG to Herbert. Evidence of PR2 is hearsay and admissible under s 59 of the Act. It is first-hand hearsay of the fact that AG reported the admission to Herbert, though second-hand hearsay of the admission itself.

There is no dispute that the evidence is admissible as a prior inconsistent statement by AG and relevant to an assessment of her reliability and credibility. While that constitutes a non-hearsay purpose, the hearsay exception in s 60 of the Evidence Act cannot be engaged since that provision does not apply in a criminal proceeding to evidence of an admission.[131] The prosecution seeks to rely upon the evidence of PR2 for a hearsay purpose by engaging the exception in s 66 of the Evidence Act. Reliance is placed upon the reasoning of Beale J in R v Lindholm (Ruling No 1).[132]
[131]Evidence Act s 60(3).
[132]R v Lindholm (Ruling No 1) [2019] VSC 726.

I accept the prosecution’s submission applying Beale J’s reasoning as to the requirements of s 66 to this case. That is, AG gave evidence of PR2. Her evidence was evidence of a previous representation the prosecution sought to adduce in criminal proceedings. AG was competent when she made PR2 and there is no evidence to rebut that presumption. AG was the maker of PR2 and available to give evidence about the asserted fact, that is, the making of PR1 by DM, and she gave evidence. Further, AG’s previous representation was first-hand hearsay because she perceived the asserted fact, the making of PR1 by DM, and that asserted fact was fresh in her memory when she made PR2. AG did not make PR2 for the purpose of indicating the evidence she would be able to give in a proceeding. This can be contrasted to paragraph [6] of AG’s statement contained in exhibit P21.

Herbert gave evidence of a previous representation in a criminal proceeding. He confirmed that AG was presumed competent. Herbert perceived the making of PR2, that is AG said it to him.

DM takes issue with the admissibility of the micro recording under cover of the s 66 exception. He argues that the micro recording itself is not evidence given by a person who saw, heard or otherwise perceived the representation. DM submits it is a recording of a prior inconsistent statement and that s 66 is often enacted when dealing with complaint evidence applying to witnesses giving evidence about what they saw themselves, heard or otherwise perceived. DM submits it does not expand to cover the playing of prior consistent or inconsistent material.

The prosecution refers to s 66(4) of the EvidenceAct, which states:

(4)A document containing a representation to which subsection (2) applies must not be tendered before the conclusion of the examination in chief of the person who made the representation, unless the court gives leave.

The prosecution concedes that the situation is complicated in this case where leave is granted under s 38 and cross-examination occurs about a prior inconsistent statement under s 43.

As the prosecution submits, by its terms, s 66(4) contemplates a tender of a document containing the very representation which is the subject of the s 66(2) exception. ‘Document’ is defined in the Evidence Act’s dictionary as meaning any record of information, including anything from which sounds, images or writings can be reproduced with or without the aid of anything else.[133]
[133]Part 1 of the Dictionary. See also cl 8 of Part 2.

At its highest, in the context of a hearsay purpose, the micro recording can do no more than establish the making of PR2. The relevance of that fact lies not in the truth of the admission by DM, that is the truth of PR1, but in the truth of the fact that DM made PR1.

Section 136

DM submits that the use of the alleged admission should be limited to credibility purposes pursuant to s 136 of the Act. Such an application must be founded upon a danger that a particular use of the evidence might be:

(a) unfairly prejudicial to a party; or

(b) misleading or confusing.[134]

[134]Evidence Act ss 136(a)–(b).

The evidence of the alleged admission and its repetition to Herbert in this case is confined and straightforward. The Court is in a position to assess the credibility and reliability of AG and Herbert and to make findings as to whether PR1 and PR2 occurred. There is, in this case, little risk of the evidence being misused or being unfairly prejudicial, as the Court is in a position to properly assess the proper use of the evidence and provide reasons in its judgment. As such, I do not consider the evidence should be limited as submitted by DM.

Incriminating conduct

On 23 October 2023, the prosecution filed the Incriminating Conduct Notice pursuant to s 19(1) of the Jury Directions Act. The Notice sets out 16 items of evidence of conduct which the prosecution proposes to rely on as evidence of incriminating conduct against QM, six items against SA, and four items against DM.[135]
[135]The last item in the Incriminating Conduct Notice in relation to SA is 7. Item number 5 was deliberately left out to align with the numbers on the Notice in DPP v SA (Ruling No 2) [2023] VSC 388R.

QM challenges the admissibility of all the items relating to him in the Incriminating Conduct Notice, except item 10. SA challenges the admissibility of items 1, 2 and 4. For his part, DM accepts that the items in the Incriminating Conduct Notice are admissible but submits that I ultimately should not accept that the conduct alleged amounts to incriminating conduct.

In relation to the present objections, the prosecution, QM and SA relied upon written submissions to which I have had regard.[136]
[136]Prosecution’s written submissions, 8 December 2023; QM’s written submissions, 8 December 2023; SA’s written submissions, 8 December 2023.

Principles

The JuryDirectionsAct s 20 provides:

(1)The prosecution must not rely on evidence of conduct as evidence of incriminating conduct unless—
(a)the prosecution has given notice in accordance with section 19; and
(b)the trial judge determines that, on the basis of the evidence as a whole, the evidence of conduct is reasonably capable of being viewed by the jury as evidence of incriminating conduct.
…

(2)Subsection (1) applies even if the evidence of conduct may be admissible for another purpose.

Section 18 of the Jury Directions Act contains the following definitions:

‘conduct’ means the telling of a lie by the accused, or any other act or omission of the accused, which occurs after the event or events alleged to constitute an offence charged;
‘incriminating conduct’ means conduct that amounts to an implied admission by the accused—
(a)of having committed an offence charged or an element of an offence charged; or

(b) which negates a defence to an offence charged;
‘offence charged’ includes any alternative offence.

In Doherty v The Queen, Kaye, Niall and Weinberg JJA explained:[137]

Section 20 requires the judge to determine the capacity of ‘the evidence’ of post-offence conduct to be reasonably considered by the jury as incriminating conduct. Section 21 mandates the direction that must be given by the judge to the jury concerning that ‘evidence’. It is clear, from those provisions, that the judge is required to make the relevant determination on the basis that the evidence that is to be adduced, or has been adduced at trial. Section 20 is not concerned, directly with the admissibility of evidence; rather, it is concerned with the use to which the evidence might be put. Of course, if the evidence could only be relevant as evidence of incriminating conduct, it would not be admitted in the trial, unless it could be reasonably viewed by the jury as evidence of such conduct.

[137]Doherty v The Queen [2019] VSCA 70, [37].

Thus, even if certain evidence included in the Incriminating Conduct Notice is not reasonably capable of being viewed as evidence of incriminating conduct, it may nonetheless be relevant and admissible for another purpose. Evidence is relevant if it ‘could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding’.[138] As Rush J observed in R v Robb (Ruling No 2)[139] while considering the admissibility of evidence relied upon as evidence of incriminating conduct:[140]

Importantly, ‘a jury may have regard to lies and post offence conduct without being satisfied that there are no other potential explanations for them apart from guilt of the offence which is charged’.⁵ Therefore, it cannot be my role to exclude evidence on the basis that there are reasonable explanations for this conduct, other than that it is indicative of the accused’s consciousness of guilt.

[138]Evidence Act 2008 (Vic) s 55.

[139]R v Robb (Ruling No 2) [2015] VSC 481.

[140]Ibid [18].

As s 4A(2) of the Jury Directions Act applies to judge-alone trials,[141] I must — at this stage of the proceeding — apply s 20 reasoning when determining the admissibility of evidence of alleged incriminating conduct.[142]
[141]Criminal Procedure Act 2009 (Vic) s 420ZG (since repealed).
[142]See DPP v Dyke [2020] VSC 300.

In DPP v McCartin (Ruling No 1),[143] Kaye JA identified that:[144]

The test for the trial judge is not whether the jury should regard the evidence of the conduct by the accused as supporting the guilty inference contended for by the prosecution. Rather the question, for the judge, is whether the jury, acting rationally could conclude that the evidence, considered in the context of the other circumstantial evidence in the trial, is capable of supporting that conclusion.

[143]DPP v McCartin (Ruling No 1) [2022] VSC 686.

[144]Ibid [27] citing R v Ciantar (2006) 16 VR 26, 48–9 [71]–[72]; Paulino v The Queen [2018] VSCA 306, [175]; Edwards v The Queen [2022] NSWCCA 22, [90].

The analysis under s 20 must be directed to the evidence as a whole — that is, the totality of the evidence — and not by consideration of a piece of evidence in isolation. Strictly, that analysis is concerned with the use to which evidence might be put rather than the admissibility of it.[145]
[145]Doherty v The Queen [2019] VSCA 70, [37].

My task for the purpose of this ruling is to determine if I am satisfied that the fact-finder, acting rationally, could conclude that the post-offence conduct when taken into consideration with the evidence as a whole, is capable of demonstrating evidence of guilt. If so, the post-offence conduct should be left to the trier of the fact, in this case myself, to determine on all of the evidence whether it has that effect.[146]
[146]See DPP v MCCartin [2022] VSC 686, [27] citing R v Ciantar (2006) 16 VR 26, 48–49 [71]–[72]; Paulino v The Queen [2018] VSCA 306, [175]; and Edwards v The Queen [2022] NSWCCA 22, [90].

The availability of alternative explanations does not negate the admissibility of the evidence as potential incriminating conduct evidence. The present issue is whether the evidence is reasonably capable of being viewed as evidence of incriminating conduct.[147] The determination of that issue, involves the resolution of two questions:

(a) whether the Court might reasonably conclude that the relevant conduct was an implied admission by an accused as to the commission of the offence charged (murder) or an element of it; and

(b) if so, whether the Court could conclude that the inference was the only reasonable conclusion available on the evidence.

[147]DPP v Baker (Ruling No 3) [2022] VSC 706, [21].

I refer to DPP v SA (Ruling No 2)[148] where I have set out the prosecution’s case.[149] In that ruling I discussed some of the difficulties — and artificiality — of undertaking the s 20 analysis in a judge alone trial. Nonetheless, QM and SA have persisted with their objections to the admissibility of items in the Incriminating Conduct Notice, and in assessing their arguments I have tried to keep an open mind and not reach conclusions on the evidence at this stage.
[148]DPP v SA (Ruling No 2) [2023] VSC 388.
[149]Ibid [21]–[22].

Items disputed by QM

The issues in relation to QM at trial were:

(a) his identity as one of the assailants caught on CCTV attacking the deceased; and

(b) whether he was a party to an agreement, arrangement or understanding to murdering the deceased and whether he had the requisite intention.

The prosecution grouped the items of post offence conduct said to be incriminating conduct as follows:

(a) QM fleeing from police, asking if it was only him who had been arrested and refusing to provide his PIN code to his mobile phone (items 1, 2 and 3);

(b) disabling ‘Find My iPhone’,[150] deleting his Snapchat account,[151] and activating a new SIM card on his phone[152] (items 4, 5 and 6);
[150]Exhibit P159.
[151]Exhibit P160.
[152]Exhibit P178.

(c) accessing news articles about the offending[153] and searching for ‘Coburg news’ on multiple occasions[154] (items 7, 8 and 9);
[153]Exhibit P179.
[154]Ibid.

(d) visiting the Australian passports office website,[155] searching the internet and visiting a website in relation to travel,[156] and purchasing the phone application ‘ID Passport Photo Maker’[157] (item 11);
[155]Exhibit P184.
[156]Exhibit P189.
[157]Exhibit P191.

(e) creating an image on his phone which depicted a photograph of himself with the words, ‘killers that have never been caught’ superimposed[158] (item 12);

(f) creating and later modifying a note in his phone containing rap lyrics[159] (item 13); and

(g) calling SA on three occasions whilst in custody (items 14, 15 and 16).[160]

On 15 March at 11:34am, QM’s phone was used to undertake a Google search for ‘can you leave the country on probation’[184] and at 12:24pm to search ‘can you travel the country on your second dose Australia’.[185] Finally, a URL was visited at or about 12:24pm entitled ‘travel restrictions while on probation — hg.org’.[186] Half an hour later, the application ‘ID Passport Photo Maker’ was purchased.[187] The prosecution submits that this evidence taken with other evidence, including the photograph of QM on 16 March with the words ‘killers that have never been caught’ provides a powerful platform for the inference that QM was making enquiries and taking steps about fleeing the jurisdiction to avoid apprehension by authorities, because he was aware he was involved in the offence. The prosecution submits it is reasonably capable of amounting to an implied admission and that a trier of fact could conclude that it is the only reasonable conclusion available.
[184]Exhibit P188.
[185]Exhibit P190.
[186]Exhibit P189.
[187]Exhibit P191.

The defence submits that by the time the latter enquiries are made, QM was aware that a serious incident had occurred involving close acquaintances to him. The defence points to the fact that he was in the company of SY later on 13 March.[188] Members of his group, some of whom were at his house immediately prior to the incident, and on the prosecution’s case, HP, had contact with him post-incident. The defence submits that given his contact and connection to individuals potentially involved in the incidents, a possible explanation for this conduct is that QM foresees himself being falsely accused by association and makes the decision to flee.
[188]Exhibit P109.

I consider that the Court could conclude that the only reasonable explanation for QM’s searches and the purchase of the ID Passport Photo Maker to prepare to flee is to investigate the possibility of fleeing the jurisdiction to avoid apprehension for any involvement in the offending. This conduct is reasonably capable of amounting to an implied admission on its own.

QM had no reason to attempt to obtain a passport other than to flee the jurisdiction. It must be recalled that at this time there were restriction on travel due to the COVID-19 pandemic. This was not something done out of curiosity or because he thought he might be wrongly implicated. QM must have had reasons beyond just an association with other offenders, to believe he might be implicated to consider such steps including the purchase of the ID Passport Photo Maker. The conduct suggests a serious intention to consider fleeing the jurisdiction which, and when considered in the context all the other post-offence conduct and general evidence, the evidence of the conduct is reasonably capable of being viewed as evidence of incriminating conduct.

Item 12

On 16 March at 8:15pm, an image was created on QM’s phone which depicted him and the superimposed words in red text, ‘killers that have never been caught’.[189] The prosecution submits that the irresistible inference is that the words are referring to QM (as depicted) with the implication that he is a killer and as at the night of 16 March, he had not been apprehended by the authorities for the killing.
[189]Exhibit P213.

The image was extracted from QM’s phone. It was created three and a half days after the murder, along with other post-offence conduct including items 1 to 9 and 11. The prosecution submits that the creation of the image on the phone with the caption is reasonably capable of amounting to an implied admission that QM was involved in the murder of the deceased on 13 March, and a trier of fact could conclude that it is the only reasonable conclusion available.

The defence submits that QM is a young man who identifies as a gang member and in particular, with the ‘9ers’. The screenshot and caption is equally consistent with QM having an image or wanting to portray an image or reputation of a gang member. The defence submits that such an explanation is equally probable as that contended by the prosecution and that as such, it is intractably mutual.

In the absence of any other evidence, this conduct might be explained as a young member of a gang such as the 9ers posing and using language to portray a certain reputation and image. However, when this caption is considered in the context of the other post-offence conduct — the timing of this conduct to the offending, the deletion of the Snapchat and ‘Find My Phone’ on QM’s phone, the purchase of a new SIM card and the travel/passport conduct two days beforehand, the modification to the lyrics of 14 March 2023 and the broader evidence — it leads to a conclusion that the evidence of this conduct is reasonably capable of amounting to an implied admission that QM was involved in the murder of the deceased and is reasonably capable of being viewed by the finder of fact as evidence of incriminating conduct.

Item 13

This conduct refers to a note entry created on QM’s phone on 20 March at 1:03am.[190] The prosecution submits that it can be inferred that it contains lyrics to a rap and that the following inferences can be drawn about those lyrics:
[190]Exhibit P215.

(a) ‘cross his name of the fuckin hitlist’, is a reference to the deceased;

(b) ‘we ride wit steel Trynna aim for the kill lotta [m*] claiming gang you ain’t step with my bros’, is a reference to carrying knives in a car, intending to kill, and that another ‘gang’ is not at the same level as theirs;

(c) ‘guess it’s time for the evil play, Ching him down in a splashy way’, is a reference to the murder of the deceased; and

(d) ‘fuck the judge Ian copping no sentence, time goes slow Trynna teach me a lesson’, is a reference to the consequences of involvement in the murder.

The prosecution submits that this evidence is reasonably capable of constituting an implied admission to QM’s involvement in the murder. The lyrics describe QM’s description of the offence and of the consequences of being involved. The prosecution submits that a trier of fact could conclude it is the only reasonable explanation, particularly when taken with the other evidence led at trial.

The defence submits that the rap lyrics in item 13 can be distinguished from the rap alleged in item 10 - in that its narrative is not distinctly similar to the alleged offending and it was produced one week after the offending. Further, music of this kind typically has violent references and an attempt to portray a gangster lifestyle.

I consider the lyrics on their own are equivocal as to their connection specifically to QM’s involvement in the offending and the deceased’s death. However, when considered in the context of the other post-offence evidence and the broader evidence, this conduct is reasonably capable of being an implied admission by QM of involvement in the offending.

I accept the prosecution’s interpretation as being very plausible given the broader evidence and post-offence conduct. Particularly relevant is the line ‘fuck the judge Ian copping no sentence, time goes slow Trynna teach me a lesson’ which was written approximately six days after QM’s passport searches and the purchase of the ID Passport Photo Maker. By 20 March, when the note is altered, there is no evidence that QM is trying to flee the jurisdiction. The lyrics are reasonably capable of indicating a reference to the consequences of his involvement in the murder and waiting for his arrest and the involvement of the law. The lyrics also bear a strong similarity of a description of the deceased’s death — from multiple stabs wounds, while he was held down on the ground.

I consider the evidence is reasonably capable of constituting an implied admission to QM’s involvement in the murder and that a trier of fact could conclude it is the only reasonable explanation.

Items 14, 15 and 16

Evidence has been led that QM called SA on a number of occasions whilst QM was in custody on remand for the charge of murder: on 27 March at 5:25pm and 5:38pm;[191] and on 1 April at 6:08pm.[192] The prosecution submits that, in the context of QM’s trial, the conduct is reasonably capable of amounting to an implied admission by QM.
[191]Exhibit P229; Exhibit P230.
[192]Exhibit P234.

The prosecution submits that when taken as a whole, including other circumstantial evidence at trial, it is clear that QM and SA are discussing the murder and the conduct alleged against them. This includes QM’s comments querying why SA had not been arrested, discussing the camera, and immediately telling SA to shut up. The prosecution submits that the discussion is not simply confined to the state of evidence against them but the reasons why SA had not been arrested, including SA’s positioning at the scene. The prosecution submits that the inference available from QM’s responses is that he has personal knowledge of these matters from being present and is concerned about discussing them on a recorded call for fear of it implicating them.

The prosecution submits that other comments by QM relate to the state of the evidence against them and his express surprise and later pride that everybody kept their mouth shut — that is, that his co-offenders had not told police what happened.

The prosecution submits that the evidence is reasonably capable of supporting the inference that QM knew that he was involved in the offence charged and it related to his presence and involvement in the attack and his participation in the alleged agreement, arrangement or understanding with others to kill or cause really serious injury to the deceased.

The prosecution submits that taken into account with the other evidence led at trial, the Court could conclude that the contended inference is the only reasonable conclusion available on the evidence.

The defence submits that the phone calls do not contain any admission by QM and that the substance does no more than confirm that QM was: in custody for murder; confused as to why SA was not charged when others were; and was happy that those involved with no specificity as to who they were, were remaining silent.

The defence submits that it is difficult to see how this phone call could amount to QM’s belief in his own guilt and that it is intractably neutral.

Item 15 reveals that QM and SA were discussing the murder and whether there was enough evidence against them. QM suggested that there was not enough evidence but was wondering why SA had not been ‘nagged’ or arrested. The conversation suggests that QM is not only implicated in the offending but that he knew that SA was involved. QM’s very quick response to shutting SA down when he was explaining why he thought he could not be arrested demonstrates a desire to conceal facts, in this instance about SA, knowing the calls are recorded. The reference to cameras is also consistent with the fact that by this time QM would have known about the CCTV footage available to the police of the attack. Further, QM’s positive reaction that others have kept their mouth shut is highly suggestive that he knew who the other offenders were.

I consider in the context of QM’s trial that conduct in item 14 is reasonably capable of amounting to an implied admission by QM. The conduct along with the evidence as a whole, demonstrates that QM had knowledge of the murder, but more importantly, that he knew other offenders including SA and wanted to conceal any information that may have assisted the police. I consider that the evidence is reasonably capable of supporting the inference that QM knew he was involved in the offence charged.

In relation to item 15, for similar reasons to those set out above relating to item 14, it discloses QM’s knowledge of the evidence in the case, and knowledge of another co-offender. I consider item 15 is evidence that is reasonably capable of amounting to an implied admission by QM.

Finally, in relation to item 16, the conduct demonstrates that QM knew HP and GD and that they had ‘snitched’. HP and GD were in the vicinity of the attack and HP recognised QM minutes after the attack when it is said that QM drives by in a car and HP says ‘That’s [QM nickname]’. The telecommunication records calls between HP and QM’s phone after the murder.

I consider that item 16, along with the post-offence conduct and the general evidence — particularly HP’s evidence and recordings — is capable of supporting the inference that QM had personal knowledge of the offending.

Ultimately, I consider that on the evidence as a whole, the evidence of the conduct in items 14, 15 and 16 are reasonably capable of amounting to implied admissions by QM and being viewed by the finder of fact as evidence of incriminating conduct.

Conclusion

In summary, I consider that the 15 items challenged by the defence are admissible as incriminating conduct. Item 10 is not disputed by the defence and as such is also admissible as incriminating conduct.

Items disputed by SA

The Incriminating Conduct Notice lists 10 items of incriminating conduct evidence in relation to SA. SA challenges the admissibility of items 1, 2 and 4 in the Notice:

(a) Item 1 – At 10:27am on 13 March, SA saved to his phone a screenshot of the deceased’s Instagram page.

(b) Item 2 – SA used his phone to search the internet for ‘Coburg North stabbing’ on 14 March at 12:56am, 16 March at 8:24am and 20 March at 3:35pm.

(c) Item 4 – On 20 March SA took a screenshot of an article about the deceased with a photograph of a letter to the deceased left at the crime scene.

The conduct in items 1, 2 and 4 took place between 13 and 20 March and relates to a mobile phone said to belong to SA. As with QM, I will proceed for the purpose of this ruling, on the basis that the phone belongs to SA and it was SA who used the phone. While SA suggests that he may not have had possession of the phone at the relevant times, I consider that it would be open on the evidence to find that he did.

The prosecution submits that over the course of about a week after the deceased’s death, SA is alleged to have used his mobile phone to source information about the deceased and his murder. The prosecution submits that the reason for doing this was because SA was involved in that offending. In seeking to draw the purported inference, the prosecution highlights the following matters:

(a) SA saved a screenshot of the deceased’s Instagram page on 13 March at 10:27am. That conduct occurred approximately 7½ hours after the deceased was declared dead, with much of that period being in the early hours of Sunday morning. By that stage, the deceased had not been publicly identified by Victoria Police or media outlets;[193]
[193]T465–T467.

(b) even if news of the events spread within SA’s social circles, the extent of the conduct is not indicative of idle interest or curiosity towards the events of 13 March. It comprises of saving a screenshot of the deceased’s Instagram page, searching for ‘Coburg North stabbing’ on three separate days over the next week, and saving a screenshot of a news article and photograph of a letter addressed to the deceased; and

(c) the conduct occurred in circumstances where there was no prior association between SA and the deceased.[194]
[194]T997.9–12.

(d) The conduct demonstrates an interest in the offending beyond mere curiosity. When taken with other evidence including, the later rap lyrics created on 29 March and modified on 1 April on SA’s phone,[195] and the recorded Arunta calls with QM, the prosecution submits it is reasonably capable of being viewed as an implied admission to his involvement in the offence. That is, that SA was seeking information about the murder of the deceased and the only reason for doing so was because he was involved in the offending. The prosecution submits there is no alternative innocent explanation for SA holding that level of interest in the deceased’s death that can be said to be so intractably neutral.

(e) The first search for ‘Coburg North stabbing’ occurred on 14 March at 12:56am.[196] The second occurred on 16 March at 8:24am.[197] Between those searches, SA set up an Australian passport account, obtained a passport photo and saved a screenshot of a ‘Start/renewal/passport application.[198] Later on 16 March, the phone evidence supports an inference that SA logged into the website of the Australian Passport Office.[199]

(f) The third search occurred on 20 March at 3:35pm.[200] The screenshot of the news article and photograph concerning the deceased’s murder was saved to the device two minutes later.[201]

[195]Incriminating Conduct Notice, SA, Item 6.

[196]Exhibit P181.

[197]Exhibit P205.

[198]Exhibit P185; Exhibit P186; Exhibit P192.

[199]Exhibit P211.

[200]Exhibit P217.

[201]Exhibit P218.

The prosecution submits when taken with other evidence, the evidence is reasonably capable of being viewed as an implied admission by SA as to his involvement in the murder. It submits that the Court, as the trier of fact, could well conclude that the contended inference is the only reasonable conclusion available.

As with QM, the prosecution relies on the broader evidence to establish the admissibility of each challenged item of conduct. In particular, the prosecution notes that the conduct must be considered alongside other evidence in the trial against SA. That evidence includes:

(a) CCTV of the confrontation in Nocton Street.

(b) CCTV of the offending itself.

(c) The recordings and evidence of HP. In particular, the evidence concerning ‘[SA Nickname]’ coming and evident tensions between the groups.

(d) The photographs provided to detectives on 14 March identifying [SA Nickname] and TH’s representations to the detectives at that time.

(e) Comparison of clothing depicted in CCTV, videos and images to the CCTV of the murder.

(f) A large body of circumstantial evidence linking the use of SA’s phone to SA throughout the afternoon and evening of 12 March, the early hours and remainder of 13 March and in the days that followed.

(g) Evidence that places the phone around the scene of the murder at the time of the murder (both in the content of the device itself and from telecommunications evidence linking that service to that location).

(h) CCTV footage from Amsterdam Avenue depicting a person the prosecution says is SA arriving at QM’s house and later leaving at 1:38am in possession of a large knife and in the company of others. This is at a time approximate to the start of the journey from that address to the crime scene and is supported by phone evidence.

(i) The remaining post offence conduct including the steps concerning obtaining a passport; the rap referencing the deceased by his nickname; the recorded calls with QM in custody; SA is alleged to have referred to his presence at and involvement in the murder, the evidence against them, and that he was waiting to get ‘nagged’ (arrested) by police; and the lies later told by SA in his police interview.

The defence accepts that the evidence led during the trial established that Victoria Police did not release the deceased’s name until some time on 14 March. However, the defence points to other evidence indicating that news of the deceased’s death was being circulated through social media well before Victoria Police released the deceased’s name to news outlets.[202]
[202]T646.14–18; T673.18–26.

The defence refers to the evidence of Healy that in the immediate aftermath of the incident, people who arrived at the crime scene believed they knew who was involved in the offending.[203] The defence submits that as such there is an innocent explanation that:
[203]T240.15–19.

(a) SA had become aware of the deceased’s death through these other means;

(b) he was consequently aware that his associates may be involved; and

(c) accordingly sought to obtain further information.

The defence submits that the conduct relied upon by the prosecution is intractably neutral and incapable of being viewed as incriminating conduct.

I consider that when the conduct is considered in the context of evidence as a whole, it demonstrates interest in the offending beyond mere curiosity.

SA’s conduct involving the saving of a screenshot of the deceased’s Instagram page in the immediate aftermath – approximately 7½ hours after the deceased was declared dead, - searching for ‘Coburg North stabbing’ on three separate days over the next week - and saving a screenshot of a news article and a photograph of a letter addressed to the deceased, is consistent with the SA being one of the assailants involved in the fatal attack upon the deceased.

When the conduct set out in items 1, 2 and 4 is taken with other evidence, I consider the evidence is reasonably capable of being viewed as an implied admission by SA as to his involvement in the murder. I consider it could be open to the Court to conclude that the contended inference is the only reasonable conclusion available.

Conclusion

For the above reasons, none of the objections to the admissibility of evidence will be upheld and I will consider the evidence objected to for the purposes of my substantive judgment.

[2024] VSC 27

9 February 2024