DPP v B Makoi; K Makoi; N Matot; A Matot; A Dau (No 2)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	DPP v B Makoi; K Makoi; N Matot; A Matot; A Dau (No 2)
Citation:	[2023] ACTSC 125
Hearing Dates:	7 – 10 February 2023, 15 – 16 February 2023, 20 – 21 February 2023
DecisionDate:	26 May 2023
Before:	Baker J
Decision:	1. I refuse the application for partial exclusion of Ms Bol’s evidence under s 137 of the Evidence Act 2011 (ACT). 2. I find the accused Kock-Kedhia Maker Makoi: a) Guilty of count one (aggravated burglary). b) Guilty of count two (assault occasioning actual bodily harm by joint commission). c) Guilty of count three (damage property by joint commission). d) Not guilty of count four (threat to kill). 3. I find the accused Beich Maker Makoi not guilty of all charges. 4. I find the accused Achan Matot not guilty of all charges. 5. I find the accused Nyalat Matot not guilty of all charges. 6. I find the accused Akim Dau not guilty of all charges.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – judge alone verdict – aggravated burglary – assault occasioning bodily harm – damaging property – threat to kill – five co-offenders charged pursuant to s 45A – joint criminal enterprise – effluxion of time affecting complainant’s memory – Murray direction – reasonable doubt as to complainant’s reliability – reliability of complainant’s identification of assailants – witness decamped during trial – no opportunity to cross-examine witness – Mahmood direction – Jovanovic direction
Legislation Cited:	Crimes Act 1900 (ACT) Criminal Code 2002 (ACT) Crimes (Serious Organised Crime) Amendment Bill 2010 (ACT) Evidence Act 2011 (ACT) Evidence (Miscellaneous Provisions) Act 1991 (ACT) Magistrates Court Act 1930 (ACT) Road Transport (Driver Licensing) Act 1999 (ACT) Supreme Court Act 1933 (ACT)
Cases Cited:	Barney v The Queen [2023] NSWCCA 85 DPP v B Makoi; K Makoi; N Matot; A Matot; A Dau [2023] ACTSC 22 Ewen v R [2015] NSWCCA 117 Fleming v The Queen [1998] HCA 68; 197 CLR 250 Gould v The Queen; R v Gould [2021] NSWCCA 92 Hoyle v The Queen [2018] ACTCA 42 Luu v Cook [2008] ACTSC 54; 185 A Crim R 403 Mahmood v Western Australia [2008] HCA 1; 232 CLR 397 Onassis v Vergottis [1968] 2 Lloyd's Rep 403 R v Edwards [2020] ACTSC 243 R v Jovanovic (1997) 42 NSWLR 520 R v Murray (1987) 11 NSWLR 12 R v Winters [2022] ACTSC 371 SB v R [2020] NSWCCA 207 Seven Network Limited v News Limited (No 8) [2005] FCA 1348; 224 ALR 317
Texts Cited:	Explanatory Statement for the Crimes (Serious Organised Crime) Amendment Bill 2010 (ACT)
Parties:	ACT Director of Public Prosecutions (ACT DPP) Beich Maker Makoi (First Accused) Kock-Kedhia Maker Makoi (Second Accused) Nyalat Matot (Third Accused) Achan Matot (Fourth Accused) Akim Dau (Fifth Accused)
Representation:	Counsel T Hickey (ACT DPP) A Doig (First Accused) S Robinson (Second Accused) D Ager (Third Accused) S McLaughlin (Fourth Accused) S Baker-Goldsmith (Fifth Accused)
Solicitors ACT DPP Tim Sharman Solicitors (First Accused) Andrew Byrnes Law Group (Second Accused) Hugo Law Group (Third Accused) Legal Aid ACT (Fourth Accused) Fraser Criminal Law (Fifth Accused)
File Number:	SCC 4 of 2022 SCC 13 of 2022 SCC 14 of 2022 SCC 15 of 2022 SCC 16 of 2022 SCC 49 of 2022 SCC 50 of 2022 SCC 139 of 2022

BAKER J:

Introduction

The accused, Beich Maker Makoi, Kock-Kedhia Maker Makoi, Nyalat Matot, Achan Matot and Akim Dau have each been charged with the following offences on an indictment dated 2 February 2023:

(a)Count 1: Aggravated burglary contrary to s 312 of the Criminal Code 2002 (ACT) and by virtue of s 45A of the Criminal Code;
(b)Count 2: Assault occasioning actual bodily harm contrary to s 24(1) of the Crimes Act 1900 (ACT) and by virtue of s 45A of the Criminal Code;
(c)Count 3: Damaging property contrary to s 403 of the Criminal Code and by virtue of s 45A of the Criminal Code; and
(d)Count 4: Threat to kill contrary to s 30 of the Crimes Act and by virtue of s 45A of the Criminal Code.

Achan Matot and Kock-Kedhia Maker Makoi are also charged with common assault of Achol Bol and Achol Garang respectively. Each of these charges have been transferred pursuant to s 90B of the Magistrates Court Act 1930 (ACT).

Each of the accused has elected in writing to be tried by judge alone pursuant to s 68B(1)(a) of the Supreme Court Act 1933 (ACT).

The trial commenced before me on 7 February 2023. On that date, each of the accused were arraigned and each pleaded not guilty to all charges.

On 21 February 2023, I retired to consider the evidence put before me. I now provide the following reasons for my verdict, which include the principles of law I have applied and the findings of fact that I have made, as required by s 68C (2) of the Supreme Court Act; see also Fleming v The Queen [1998] HCA 68; 197 CLR 250.

The evidence in the trial

Introduction

In brief, the prosecution case is that each of the offences were committed by each of the accused when, acting as a group, they broke into the apartment of Ms Garang and assaulted her, damaged Ms Garang’s property and made threats to kill her. One of the transferred charges also relates to an assault alleged to have been committed upon Ms Achol Bol.

At the time of the alleged incident, Achol Bol was visiting her sister, Achieu (“Kiki”) Bol, who was housemates with Achol Garang. The two Bol sisters were sharing a room while Achol Bol was visiting her sister. Achieu Bol was not present at the time of the alleged incident, as she had left the apartment earlier in the evening.

A number of the accused are related. Beich Maker Makoi and Kock-Kedhia Maker Makoi are sisters, as are Nyalat Matot and Achan Matot. At the time of the events in question, Akim Dau was living with Kock-Kedhia Maker Makoi. All were known to Ms Garang.

As a number of the accused share the same surnames, I will refer to Beich Maker Makoi, Kock-Kedhia Maker Makoi, Nyalat Matot and Achan Matot by their preferred first and surnames. I was informed that Beich Maker Makoi’s preferred first name is “Tabisa”, and that Kock-Kedhia Maker Makoi’s preferred first name is “KK”. I will refer to Akim Dau by her surname.

As the two complainants share the same first name, I will refer to each of them by their surnames. I do not mean any disrespect by referring to a number of the accused by their first and surnames and the complainants by their surnames. This course has been necessary to avoid confusion.

The incident on 21 June 2020 at KK Makoi’s house

The prosecution case is that the offences were committed by each of the accused, acting together, in retaliation for an incident that occurred on 21 June 2020. The circumstances surrounding that event were as follows.

In the months preceding June 2020, the accused Akim Dau had been living with Ms Garang in Ms Garang’s apartment in Hawker. However, following a falling out, Ms Dau had moved out of Ms Garang’s apartment and into KK’s Makoi’s house in Moncrieff. Ms Dau had left some of her belongings and identification documents in Ms Garang’s apartment. On 21 June, Ms Garang, Achieu Bol, Achol Bol, and Ms Garang’s male friend, “DJ”, drove to KK Makoi’s house to return Ms Dau her belongings, which were in a black backpack.

When they arrived at KK Makoi’s house, Ms Garang and her friends went inside through a back entrance. They did not stay long. As they left, Ms Garang noticed that the black backpack containing Ms Dau’s belongings was on fire. Ms Garang and her friends walked past the burning backpack, got into their car, and drove away.

Immediately after Ms Garang and her friends drove off, KK Makoi’s dog, Nipsy, was found dead on the road outside KK Makoi’s house. Given the short period during which these events occurred, KK Makoi inferred that Ms Garang’s car had hit and killed Nipsy as Ms Garang was driving away. KK Makoi subsequently called police in relation to the incident. The transcript of that call records “Mary Makoi” as a participant in that call to police on 21 June 2020. (In cross-examination, Ms Garang agreed that KK Makoi is also known as “Mary”.)

At approximately 7:40pm that evening the Gungahlin Police Station received a radio transmission to attend an address in Moncrieff regarding “petrol poured on a bag of property and set alight.” Constable Benness and Constable Holdsworth attended KK Makoi’s home in response to this call.

Constable Benness gave evidence that upon arrival, he spoke to a distraught woman at the front of the Moncrieff address by the name of “Mary Makoi” who told him that her dog was dead and that Ms Garang and “Kiki” were responsible. The woman showed Constable Benness Nipsy’s body.

Constable Holdsworth was shown the burnt backpack. Ms Dau told him that her identification documents had been in the backpack, but that she couldn’t find those documents in the backpack’s burnt remains.

A phone call on 21 June 2020

Ms Garang gave evidence that later that day (21 June 2020), she received a call from KK Makoi threatening to “come for” her for killing Nipsy. Ms Garang gave evidence that the phone call lasted for “just a few minutes…a minute or two”. Ms Garang said that she could also hear Ms Dau and Tabisa Makoi in the background of the telephone call. All of them sounded upset. Ms Garang said that she stayed up most of that night, waiting in case they arrived to assault her. She said that no one came.

I note that this call does not appear in KK Makoi’s phone records, which were admitted into evidence. However, the phone records indicate that a call was made from Tabisa Makoi’s phone to Ms Garang’s phone on 21 June 2020 at 20:26:47, which has a duration of 65 seconds. Immediately following this call are attempted calls of short duration (2 seconds) from Ms Garang’s phone to Tabisa Makoi’s phone.

22 June 2020: The alleged offences

Ms Garang gave evidence that, the next day (22 June 2020), she invited two or three friends over to her apartment at approximately 1:00pm. As noted above, Achol Bol was staying at Ms Garang’s house because her sister, Achieu Bol, was Ms Garang’s housemate.

Ms Garang gave evidence that she drank alcohol and smoked cigarettes with her friends as well as Achol Bol and Achieu Bol that afternoon. (As noted below, Achol Bol did not recall this.) She said that the visitors left at about 6:00pm or 7:00pm, and that she went to bed at about 8:00pm. Ms Garang said that Achol Bol also went to bed at that time. Achieu Bol stayed awake in the living room, as she was getting ready to go out later on that evening.

Ms Garang gave evidence that shortly after she went to sleep, she woke up to find Tabisa Makoi on top of her, pinning her hands down on the bed and “beating her up”. Tabisa was angry and was accusing Ms Garang of killing KK’s dog.

Ms Garang said while Tabisa Makoi was sitting on top of her, she could see KK Makoi standing on the left of her bed, approximately half a metre away. Ms Garang gave evidence that KK Makoi hit her with a wine rack, holding it with both her hands, swinging it behind her shoulder and bringing it down on her knees, legs and thighs. Ms Garang was not sure how many times she was struck with the wine rack. She said that during the assault, she lost her vision for a few seconds and became dizzy and lightheaded.

Ms Garang said that she asked Tabisa Makoi “what the hell. What are you doing? Why are you hitting me and stuff?”. Tabisa replied “you fucking killed a dog”.

Ms Garang gave evidence that, approximately one or two minutes after the assault began, Ms Dau came to the bedroom and was “talking down on her” and saying “yeah, you like that, bitch”. Ms Garang said that she also saw Ms Dau opening her cupboards in her bedroom and looking for her belongings. Ms Dau was standing “a bit further away” than KK Makoi, and walking “in and out of [her] room and into the living area.”

Ms Garang said that she could hear things being shattered in her living area, and noises of people fighting in the other room. She could not hear exactly what was being said but could tell the voices were female. She heard Achol Bol say “get off me”.

Ms Garang recalled that after a few minutes, Tabisa Makoi got off her and walked out of her bedroom. Ms Garang remained in the bed. KK Makoi hit Ms Garang a few times with the wine rack, and then ran out of the bedroom and left the house.

Ms Garang said that she then got up out of bed and leaned against the door frame of her bedroom door. She said that she saw a number of women leaving the apartment as she was standing against the door frame. She said she saw “Nyalat, Achan Matot and Achan… the other Achan” as well as Tabisa Makoi, KK Makoi and Akim Dau. In cross-examination, Ms Garang explained that the “other Achan” was a female who she knew as “Jessie”. She agreed that Jessie’s surname may have been “Deng”.

Ms Garang told the court that “[the accused] poured petrol everywhere in the house”. The last thing she heard from the intruders was Tabisa Makoi saying “where’s the lighter” when she was standing at her bedroom door following the assault.

After the intruders left the apartment, Ms Bol ran to check on Ms Garang. Ms Garang gave evidence that Ms Bol then told her that during the assault she had tried to come into her room to help her, but Achan Matot and “Jessie” were blocking her. (As noted below, Ms Bol told police who arrived shortly thereafter that she did not know any of the assailants.)

Ms Garang said that she called triple 0 while standing near the door and that she went to sit back down on her bed, next to Ms Bol, whilst she was on the phone. However, she also gave evidence that she was still laying in her bed when Ms Bol approached her and asked her if she was ok.

Ms Garang’s evidence about threats

In her evidence in chief, Ms Garang did not initially give evidence of any threats made by any of the accused. The prosecutor sought leave to refresh Ms Garang’s memory under s 32 and/or to cross-examine her under s 38 of the Evidence Act 2011 (ACT). Each of the accused submitted that the threshold for granting leave to refresh Ms Garang’s memory was not met, but no submissions were made in opposition to leave being granted to the prosecutor to cross-examine her under s 38. I granted leave to the prosecutor to cross-examine Ms Garang pursuant to that provision.

In the course of that cross-examination, and after being shown the statement that she previously made to police, Ms Garang recalled that while Tabisa Makoi was punching her with a closed fist, Tabisa Makoi said words to the effect of “How dare you. I’m going to fucking kill you today”. Ms Garang said that this was in the context of Tabisa Makoi also referring to the fact that she (Ms Garang) had killed KK Makoi’s dog.

After being shown her statement in cross-examination, Ms Garang also stated that after KK Makoi hit her in the face, she “immediately” lost her vision and could hear voices saying “go, go, go”. In her statement, Ms Garang had stated that she then heard KK Makoi say “I’m going to burn you alive, bitch” three times. After reading her statement, Ms Garang said that she could recall words to this effect being said, although she could not recall how many times those words were said.

Ms Garang explained that her memory of what KK Makoi had said came back to her after reading the statement she had given to police. She said that she had tried not to think about what had happened to avoid flashbacks of the event (“after a while … when I see anything on fire it just comes back to me that if these girls did have a lighter with them they could have burned me”). She said that she “definitely” remembered KK telling her that she was going to burn her alive.

The triple 0 call

After the assailants left, Ms Garang immediately called triple 0. Call records indicate that this call was made at 20:05 on 22 June 2020. An audio recording of that call was admitted into evidence. Loud voices can be heard in the background at the commencement of the call. Initially, the triple 0 call operator asked for an address. The first voice on the call (who appears to be Ms Bol) is heard to ask “Akim” what the address is. It is not clear who Ms Bol was referring to at this time.

Ms Garang then came onto the call and provided the triple 0 call operator with the address of her block of units. She then told the triple 0 call operator that “some girl” had come into her apartment and “beat the shit out of me while I was sleeping… and broke my whole house.” Ms Garang said that she “just woke up to somebody on top of me punching on my face.”

When asked whether she knew who the person was, Ms Garang answered “they’re leaving now. Yes, I do. They’re outside right now leaving.” She said that a “group of people” had attacked her. She identified one of the persons in the group as “Tabisa”. Other than referring to “some girl going around making problems” (Ms Garang explained in her evidence that was referring to Ms Dau and their previous falling out), Ms Garang did not refer to any of the other assailants by name in this call.

The arrival of police and ambulance

Police arrived at Ms Garang’s apartment at approximately 8:30pm in response to her triple 0 call.

On arrival, police observed extensive damage throughout the apartment. Police took photos and body worn footage which depicts broken furniture, a damaged television and broken glass and crockery throughout the apartment.

On arrival, police also noticed that Ms Garang’s apartment smelt of petrol. Bodyworn footage of Senior Constable Blackford shows one police officer picking up a plastic drink bottle. Senior Constable Blackford is heard to ask if that is “where [the smell] is coming from?” Sergeant Wills replied “yes, that’s where it smells like its coming.” Another officer, Constable Brockhurst-Leacock, gave evidence that he smelt petrol on the floor of the living room. He recalled seeing a “puddle” of liquid on the living room floor.

Police interviewed both Ms Garang and Achol Bol. Constable Elder gave evidence that he spoke to Ms Garang when he arrived at the apartment and that she told him what had occurred. Constable Elder said that Ms Garang told him that she was asleep in her apartment when she was awoken by Tabisa Makoi, who was sitting on top of her and assaulting her. Ms Garang also told Constable Elder that KK Makoi was hitting her with a wine rack. Ms Garang gave evidence that she told attending officers that as a result of KK Makoi assaulting her with the wine rack she felt her “lower body” and “lower back” go numb.

Constable Maher interviewed Achol Bol. Helpfully, Constable Maher’s interview of Ms Bol was recorded by way of body worn footage. In that interview, Ms Bol described awaking to noise and yelling and seeing approximately six Sudanese females smashing various objects and furniture in the apartment. Ms Bol described being hit with a metal pole by one of the intruders and seeing one of the intruders on top of Ms Garang assaulting her. She told Constable Maher that she could not identify who any of the intruders were and did not recognise any of them, but she heard the names “Achan” and “KK”. Constable Maher asked Ms Bol about the smell of petrol in the apartment. In reply, Ms Bol told Constable Maher that she did not see any of the offenders pouring petrol, but that she heard one of the offenders say that they had “petrolled” the apartment. (However, in cross-examination, Ms Bol said that she did not remember whether she heard anyone say that they had petrolled the house.)

At approximately 9:30pm, Ms Garang was taken to hospital by ambulance. She stayed there for approximately “an hour or so”, before signing herself out. She was administered a form of pain relief “gas” as well as Panadol and Nurofen.

Ms Garang gave evidence that she could not get out of bed the next morning as her eyes hurt and her jaw was fractured. She later explained that her jaw “felt” like it was fractured but was not in fact broken. Two photographs of Ms Garang’s face taken by police on the evening of the alleged incident showed that her left eye was swollen and puffy.

Texts and calls after the alleged incident

Call records show that various text messages were made between Tabisa Makoi and Ms Garang immediately after the incident. Those texts were recorded as being sent between 21:02 and 21:15. Those text messages were not admitted into evidence, and were never brought to the attention of police. Ms Garang could not recall what was discussed in the text messages.

The call records also record that Ms Garang made two calls to KK Makoi much later in the evening. Ms Garang gave evidence that she recalled calling Tabisa Makoi, as she was upset about having been assaulted by her.

The neighbour’s observations

Police conducted a door knock at the block of apartments to find out if any of Ms Garang’s neighbours had seen or heard anything related to the assault. One neighbour, who lived in the apartment at the end of the corridor opposite Ms Garang’s apartment, told police that she had heard a disturbance about 30 minutes before police arrived. The neighbour told Constable Blackford that she heard a voice saying “this is not over”, “you killed my effing dog” and “we’ll be back”.

In her evidence at trial, the neighbour explained that, at approximately 8:00pm she heard yelling and noise in the corridor outside her apartment. She said that the units are “really small” and that noise travels, so “you can hear pretty much what everyone’s doing in the block.” The neighbour recalled that one of the voices was saying “you killed my dog” and “I’m going to kill you”. She could hear lots of voices yelling at the same time. They were all “definitely female” voices.

The neighbour proceeded to look through the peephole of her door, which gave a direct view to the other end of the corridor where the door to Ms Garang’s apartment. When she looked through the peephole, she saw about six or seven women at the end of the corridor congregated around the door to Ms Garang’s apartment. All of the women appeared to be of African descent. One of the women was quite tall, and another had brightly coloured braids in her hair, one of which “[stood] out” because it was a purple coloured braid that “went down just past her bum”. The neighbour said that the women all appeared to be around the same age.

The neighbour was concerned and called police. Whilst on the phone to the police, the neighbour heard the yelling sounds die down as the women went down the stairwell to exit the apartment complex. From her kitchen window, the neighbour saw the women walk away from the apartment complex.

Constable Blackford’s notes record that the neighbour told him that she had seen “a group of people, African in appearance, sevenish, one male, 5 foot 7 inch tall with close-cropped hair; one female with braids in her hair. Most of the group were women. Seen the male person around before”. In her evidence in Court, the neighbour stated that she did not recall seeing a male, but accepted that she must have (“if that’s what I told the police officer”).

Subsequent police investigations

Police seized a plastic water bottle and a wine rack from the apartment. Both were sent to forensic experts within the Australian Federal Police (“AFP”) for analysis.

Analysis of the liquid in the plastic water bottle

The plastic water bottle was sent to Mr Benjamin Cabot, a forensic chemist with the AFP, for analysis.

Mr Cabot found traces of petrol in the bottle. However, Mr Cabot said that he had been informed by Constable Elder that the bottle had not been properly stored before it was given to him (that is, Mr Cabot). The bottle was in a paper bag when it was collected from the crime scene. The bottle remained in that paper bag in Belconnen Police Station for approximately 10 days before it was taken to forensics where it was then placed in a plastic bag and stored in a refrigerator.

Mr Cabot explained that because the bottle had been stored at room temperature, with an open lid, in a paper bag, he could not be certain that the plastic bottle was not contaminated. In particular, he could not discern whether any petrol in the bottle had evaporated out, or whether any items stored next to the bottle, which may have had petrol in or on them, had evaporated out and contaminated the liquid in the water bottle whilst in the paper bag.

There was no evidence as to what items were next to the plastic bottle for the 10 days that it was stored in Belconnen Police Station before being taken to forensics.

Analysis of the fingerprints on the wine rack and the water bottle

The wine rack was sent to Ms Lisa Nicholson, a fingerprint examiner with the AFP, for analysis and comparison with the fingerprints of each of the accused.

Ms Nicholson informed the Court that a fingerprint found on the wine rack was “not inconsistent” with the fingerprint of Tabisa Makoi’s right index finger, but that the print was not sufficiently clear to be positively identified as her fingerprint. Another fingerprint found on the wine rack was sufficiently clear for identification, however, it did not match any of the accused’s fingerprints.

Ms Nicholson also gave evidence about fingerprint evidence found on the clear plastic water bottle that was seized by police from the floor of Ms Garang’s apartment. Four fingerprints were obtained from the water bottle. Of those four prints, three had insufficient detail to identify a fingerprint. The fourth fingerprint was identified but could not be matched to any individual.

DNA analysis of the wine rack and the water bottle

The wine rack and the water bottle were sent to Joshua Schwartz, a forensic biologist with the AFP, for analysis and comparison with the DNA of each of the accused.

Mr Schwartz gave evidence that the DNA profile obtained from the wine rack was a “mixed DNA profile from a minimum of two individuals”. However, the profile was of insufficient quality to enable an identification to be made of either of the contributing individuals.

A mixed DNA profile from at least two persons was also obtained from the plastic water bottle. This profile was of better quality than the DNA profile obtained from the wine rack. Although the profile was also a two-person mixture, it appeared that one person contributed more DNA to this profile than the other. When this profile was compared against the profiles of the accused, the conclusion was drawn that Tabisa Makoi could not be excluded as a contributor to the profile.

Mr Schwartz was of the opinion that there was “extremely strong support” for the proposition that Tabisa Makoi was a contributor to the DNA profile found on the plastic water bottle. Comparing the DNA profile with the Australian Caucasian sub-population, Mr Schwartz concluded that:

The evidence is at least 9 million times more likely if Tabisa Makoi is one of two contributors to the mixed DNA profile than if it originated from two unknown individuals unrelated to Tabisa Makoi selected at random from the Australian Caucasian sub-population. And in my opinion this finding, when considered in isolation from other information, provides extremely strong support for the proposition that Tabisa Makoi is a contributor to the DNA profile.

When asked why the Australian Caucasian sub-population database was used as a comparator, Mr Schwartz explained:

… the database that we select for is independent of the race or the ethnicity or the cultural background of any of the suspects. It’s dependent on where the alleged incident has taken place. So because the alleged incident has taken place in Canberra, and we’re saying in that second proposition that Tabisa Makoi isn’t a contributor, someone else in the community is a contributor. So that’s why we used the Australian Caucasian subpopulation database because the general community in Canberra is Caucasian.

Mr Schwartz explained that, regardless of which comparison database used, Tabisa Makoi’s DNA could not be excluded as a contributor to the profile. He said that if a Sudanese database had been used, the “likelihood ratio” (that is, the reference to a likelihood of 9 million) would be lower, but he could not state by how much.

Forensic procedure

Almost two years after the alleged incident, on 12 May 2022, police took a photo of Tabisa Makoi during a forensic procedure. In that photo, Tabisa Makoi is shown to have a long purple and white braid that appeared to go down to her waist. There was no explanation as to why police did not attempt to obtain a forensic procedure to demonstrate Tabisa Makoi’s appearance at an earlier point in time.

However, Constable Elder said that he had been in contact with Tabisa Makoi a couple of weeks earlier, on 28 April 2022 and at that time, Tabisa Makoi did not have the braid. At that time, she had short hair that was dyed red.

The evidence of Achol Bol

On the last day of evidence in the trial (16 February 2023), the prosecution called Achol Bol, who was present with Ms Garang in the apartment at the time of the alleged offences. Ms Bol gave evidence via an audio-visual link (AVL) from a Victorian university campus. Ms Bol did not complete her evidence.

The circumstances in which Ms Bol’s evidence concluded are important to the determination of the issues in this case. For this reason, it is necessary to summarise her evidence and the circumstances in which she ceased giving evidence in some detail.

In her evidence in chief, Ms Bol explained that in June 2020, she stayed for a few nights at Ms Garang’s apartment, whilst visiting her sister, Achieu Bol, who was housemates with Ms Garang. During this time, Ms Bol shared her sister’s room.

As to the alleged offences, Ms Bol told the court that she was sleeping in her sister’s bedroom when several women entered the apartment. She first became aware of “loud noises” and “things breaking” in the living room. She woke to find “girls” in her bedroom, hitting her in the face and hitting her in the legs with a metal pole, while she was lying in bed. She said that she “defended [herself]” and punched them back. She said that the women were Sudanese; one was “short and chubby” and the other was “skinny and tall”. She did not know the women, but could identify that they were Sudanese.

After a short time, the girls left the bedroom and Ms Bol followed them towards Ms Garang’s room. She said that they proceeded to hit her and pour petrol on her. Ms Bol tried to get into Ms Garang’s room, but was not able to because the women were pushing her back. Ms Bol told the Court that she could see other Sudanese women through the door of Ms Garang’s bedroom.

Ms Bol testified that, although she could not enter Ms Garang’s bedroom, she could see the women hitting Ms Garang and pouring petrol on her. She could see about three women in the room, punching Ms Garang in the face and using the same metal pole to hit her that she had been assaulted with. Ms Bol said that she was also hit with the metal pole when she tried to enter Ms Garang’s room. She said that she could hear Ms Garang yelling at the women to stop whilst she was being assaulted. Ms Bol also heard the women screaming “where’s the lighter?”.

Ms Bol said that she saw the women pouring petrol “all over the house and pouring it on Ashushu [Ms Garang].” She did not recall exactly who was pouring the petrol, but remembered the smell of petrol in the kitchen, the living room and the bathroom. Ms Bol thought the petrol was carried in the water bottle.

The women left the house via the front door. As they were leaving, Ms Bol recalled hearing the women calling each other to say “let’s go”.

When the women left the apartment, Ms Bol said she went into Ms Garang’s room. Ms Garang was on the phone to police. She could not remember exactly where Ms Garang was when she was talking on the phone. They each told each other about what had happened to them, but Ms Bol could not recall the exact words that they used.

Following the incident, Ms Bol spoke to police and told them what had occurred. Ms Bol went with Ms Garang to the hospital in the ambulance. She recalled that Ms Garang had some injuries to her face and there was an injury to her ankle.

Ms Bol could not recall what time her sister, Achieu Bol, left the apartment. Ms Bol recounted that Achieu Bol came back to the apartment at some point on the evening of 22 June 2020 as she was present when police arrived.

Ms Bol also gave evidence that she told police she did not see anyone pouring petrol the night of the incident. She told the Court that she did not recall why she did not mention seeing someone pour petrol on Ms Garang. Ms Bol also gave evidence that the women had hit her with a metal pole, but she did not tell this to police in her interview captured on body worn footage. She said that she could “not really” remember what she had said about this.

In cross-examination Ms Bol told the Court that she could not recall whether there was a gathering of people at Ms Garang’s apartment on 22 June 2020, nor could she recall whether there were people having lunch at Ms Garang’s house that day. Ms Bol said that on the evening of 21 June 2020, she had been up late owing to her “bad sleeping pattern”, but could not recall where Ms Garang was that night. She also could not remember her sister, Achieu Bol, leaving the apartment on the evening of 22 June 2020. She said that she may have been asleep when Achieu left.

Ms Bol also gave evidence that she attended the hospital with Ms Garang in the ambulance but did not remember having a conversation with her in the vehicle. She told the Court that in the two or so years that have elapsed since the alleged offending, she has had conversations with both Ms Garang and Achieu Bol and “probably” spoke about the incident with both of them.

She told the court that when Achieu Bol came back to the apartment, she did not ask her about what she did that evening. She could not recall whether Ms Garang asked Achieu Bol about what she did that evening.

About 15 minutes into Ms Achol Bol’s cross-examination, counsel who appeared for the accused Tabisa Makoi, asked the following question:

My friend, the prosecutor, has asked you some questions and unfortunately, I’ve got to go back there and ask you similar questions. Because as the prosecutor has indicated, some of the things you’ve said today are different to what you told police on 22 June 2020, do you understand that?

Ms Bol responded “yes”. She then disconnected from the AVL through which she was giving evidence, left the university campus and did not return. Ms Bol did not answer calls from the prosecution for the remainder of the day.

Proceedings after Achol Bol’s departure

On the application of the prosecutor, I granted the prosecution an adjournment until Monday 20 February 2023 to enable the prosecution to attempt to contact Ms Bol and to secure her attendance to complete the remainder of her evidence in the trial. On the morning of 20 February 2023, I was advised by the prosecutor that the prosecution had not been able to contact Ms Bol.

Counsel for KK Makoi and Tabisa Makoi each then made an application for a temporary stay of the proceedings until such time as Ms Bol could be brought before the Court to give the remainder of her evidence. The prosecution opposed this application.

I was satisfied that the risk of any unfairness arising from Ms Bol’s absence could be sufficiently ameliorated by the exclusion of evidence and/or the giving of directions, including a forceful Mahmood direction (Mahmood v Western Australia [2008] HCA 1; 232 CLR 397 at [27]) in the event that Ms Bol’s evidence were excluded in the case of one or more accused. I accordingly refused the application for a temporary stay: DPP v B Makoi; K Makoi; N Matot; A Matot; A Dau [2023] ACTSC 22.

The prosecution then closed its case. There was no case in reply for any of the accused.

Evidentiary objection: Ms Achol Bol’s evidence

As indicated at [88] above, one of the matters that I took into account in declining to order a temporary stay of the proceedings was that the risk of any unfairness arising from Ms Bol’s departure could be sufficiently ameliorated by the exclusion of her evidence (including both her oral evidence in the trial and/or her record of interview with police).

Each of the accused other than KK Makoi subsequently reached agreement with the prosecution that:

(i) Question and answer 41, 42, and part of answers 43 and 46 in Ms Bol’s record of interview taken on 22 June 2020 (Exhibit 18) should be excluded.

(ii) The remainder of Ms Bol’s record of interview was not objected to, and remained in evidence, including as proof of the statements contained therein (s 60 of the Evidence Act).

(iii) In respect of Ms Bol’s evidence in chief, it was agreed that one aspect of Ms Bol’s evidence should be excluded, namely, Ms Bol’s evidence that she recognised “Akima” as being one of the women in the apartment. (In this respect, I note that Ms Bol had told Constable Maher that she did not recognise any of the intruders when interviewed on the evening in question.)

In circumstances where there was clear unfairness arising from the inability of the accused to complete the cross-examination of Ms Bol, I was satisfied that it was appropriate to exclude the parts of Ms Bol’s record of interview and evidence in chief that were objected to by those accused, and which were not pressed by the prosecution. I have not taken that evidence into account in my deliberations. As there was no objection to the remainder of Ms Bol’s in court evidence in respect of the four accused other than KK Makoi, I have taken that evidence into account in my deliberations in respect of each of them.

In respect of the accused KK Makoi, no such agreement was reached. Counsel for KK Makoi sought the following evidentiary rulings:

(i) That pursuant to s 136 of the Evidence Act, the use of Exhibit 18 (KK Makoi’s record of interview with Police on 22 June 2022) be limited to proof of what Ms Bol told the police on 22 June 2020 (in other words, that the interview not be admitted under the hearsay provisions as proof of the representations contained therein);

(ii) That pursuant to s 137 of the Evidence Act various questions and answers given during the oral evidence of Ms Bol be excluded, including that she heard one of the offenders referred to by the name of “KK” and that one of the offenders had “said something about a lighter… when they were jumping Ashushu [Ms Garang].”

In respect of the first ruling sought, counsel for KK Makoi submitted that there would be unfairness in allowing Exhibit 18 to be relied on as proof of the representations contained therein because Ms Bol could not be cross-examined “on evidence which the prosecutor submitted is reliable, and which inculpates the accused.”

In respect of the second ruling sought, counsel for KK Makoi submitted that the probative value of Ms Bol’s oral evidence was “limited by the obvious inconsistencies put to her by the prosecutor in her evidence in chief” and “the danger of unfair prejudice arises because there was only very limited cross-examination before Ms Bol discontinued her evidence.”

The prosecutor opposed the applications for Exhibit 18 to be limited under s 136 and the exclusion of evidence under s 137. The prosecutor contended that the evidence could only be limited or excluded in the way sought by counsel for KK Makoi if “unfair prejudice” were caused. The prosecutor submitted that in a judge alone trial, the possibility of unfair use was greatly mitigated, citing Seven Network Ltd v News Ltd (No 8) [2005] FCA 1348 at [21]. He also submitted that the probative value of the evidence (taken at its highest) was very high.

The prosecutor acknowledged that in resisting the application for a temporary stay of the proceedings, he had accepted that exclusion of Ms Bol’s evidence was one way in which the unfairness that resulted from her departure could be addressed. However, the prosecutor submitted that it would be unfair to the prosecution for an accused to be permitted to “cherry pick” which parts of the evidence could be relied on.

In response, counsel for KK Makoi clarified that he only sought that the use of Exhibit 18 be limited under s 136 and that the identified answers in Ms Bol’s oral evidence be excluded. He emphasised that he did not seek exclusion of all of Ms Bol’s evidence if this limited application failed, explaining that he would “prefer everything go in, rather than everything go out.”

In my view, there is force to the prosecutor’s submission that s 137 does not permit an accused to ‘cherry pick’ parts of evidence to be excluded simply on the basis that those parts of the evidence do not assist the accused’s case. Section 137 should not be applied so as to result in unfairness to either party. Partial exclusion of the evidence in the present case would result in unfairness to the prosecutor, as Ms Bol’s account would be misleading and incomplete. Accordingly, I refuse the application for partial exclusion of Ms Bol’s evidence under s 137 of the Evidence Act.

I also agree with the prosecutor’s submission that it would not be appropriate to limit the use of Ms Bol’s record of interview under s 136 of the Evidence Act. A limiting order may only be made under s 136 in circumstances where there is a danger that a particular use of the evidence might be unfairly prejudicial to a party, or be misleading or confusing. I am satisfied that the risk of unfair prejudice can be met by the strong directions that I will give myself concerning this evidence, particularly given that this is a judge alone trial.

Accordingly, the evidence in the case against KK Makoi will include both Ms Bol’s evidence in Court, and her record of interview with police (Exhibit 18). This evidence is the subject of specific directions so as to guard against the possibility of unfair prejudice, which I address at [118] to [123] below.

The elements

There was no dispute between the parties as to the elements of the charged offences. Annexure “A” to this judgment contains a summary of the elements for each of the charged offences. I address the elements in the consideration of my verdicts below.

Directions

During the course of oral addresses, I provided the parties with the draft directions that I proposed to give myself and heard submissions in respect of the content of those directions.

The majority of the proposed directions are common to offences of this nature and were not the subject of objection by any party. However, various accused sought directions or extended directions in relation to the following issues, which were opposed either in whole or in part by the prosecutor:

(i) That I carefully examine the evidence of Ms Garang as a “critical prosecution witness” (a Murray direction);

(ii) That I warn myself against asking whether there is any reason for Ms Garang to lie (a Jovanovic direction); and

(iii) The complaint evidence (specifically, which of Ms Garang’s previous statements fall within the scope of the direction); and

(iv) The warnings that I should give myself in relation to the absence of complete evidence from Achol Bol.

In addition, counsel for KK Makoi and Tabisa Makoi each initially sought a Mahmood direction (Mahmood v Western Australia (2008) 232 CLR 397 at [27]) in respect of the failure of the prosecution to call Achieu Bol. However, after the prosecutor informed the Court that there had been discussions about whether Achieu Bol was required and that no counsel had requested that she be called, a Mahmood direction in respect of Achieu Bol was not pressed by any of the accuseds’ counsel.

Annexure “B” to this judgment sets out the directions that I have given myself, and which I have borne in mind in the consideration of my verdicts for each accused. My reasons for directing myself in respect of the disputed directions are set out below.

Murray direction

A Murray direction is a direction that, “in any case in which the sole evidence of the commission of a crime is that of a single witness, the evidence of that witness must be scrutinised with great care”: R v Murray (1987) 11 NSWLR 12 at 19; Ewen v R [2015] NSWCCA 117; 250 A Crim R 544 at [104] (Simpson J; Basten JA and Davies J agreeing). As Adamson J (with whom Bathurst CJ and Davies J agreed) observed in Gould v R; R v Gould [2021] NSWCCA 92 at [134], a Murray direction derives from fundamental principles relating to the onus of proof and can be reduced to the following propositions:

(1) it is for the Crown to prove each element of an offence beyond reasonable doubt;
(2) the jury is obliged to consider all of the evidence in determining whether each element has been proved beyond reasonable doubt;
(3) if the commission of an offence (or at least one element of it) depends solely on the evidence of a single witness, the jury must be satisfied of the evidence of that witness beyond reasonable doubt as to the relevant element or elements (since there is no other evidence to weigh in the balance);
(4) if there is evidence beyond that of the single witness which tends to prove the particular element, there is no basis for a Murray direction since the jury could be satisfied of the particular element beyond reasonable doubt even though, without more, they would not be prepared to accept the evidence of the witness as to that matter beyond reasonable doubt; and
(5) the evidence beyond that of a single witness can derive either from the oral testimony of other witnesses; or from documents; or other corroboration (such as DNA testing, telephone intercepts, physical evidence etc).

The prosecutor did not oppose the giving of a Murray direction in the cases against Nyalat Matot, Achan Matot or Akim Dau. However, the prosecutor opposed this direction in the cases against Tabisa Makoi and KK Makoi. The prosecutor submitted that such a direction is not appropriate in their cases because Ms Garang’s evidence about each of those accused is supported – by the neighbour’s evidence and Ms Bol’s evidence in the case of KK Makoi, and by DNA evidence, fingerprint evidence and the evidence of the use of hair braid extensions in the case of Tabisa Makoi.

I agree with the prosecution that a Murray direction may not be strictly required as a matter of law in the case of KK Makoi and Tabisa Makoi, as there is evidence apart from the evidence of Ms Garang that supports the prosecution case against each of these accused. Nonetheless, consistently with the onus and burden of proof, I have scrutinised Ms Garang’s evidence with great care in respect of each accused. I have also carefully considered whether Ms Garang’s evidence is supported by reliable and independent evidence in the case against each accused.

Jovanovic direction

A Jovanovic direction is a direction to the effect that, even if the jury does not accept that a witness was motivated to lie for a reason suggested by the accused, that does not mean that the witness is necessarily telling the truth: R vJovanovic (1997) 42 NSWLR 520 at 521–522 (Priestley JA) and 535 (Sperling J); see also Hoyle v The Queen [2018] ACTCA 42; 339 FCR 11.

Like a Murray direction, a Jovanovic direction also derives from fundamental principles concerned with the onus and standard of proof in a criminal trial. A Jovanovic direction reinforces the directions concerning the requirement for proof beyond reasonable doubt, which are central to my consideration of the charges against each accused. It also repeats the direction that a witness’ evidence may be accepted in whole or in part.

The heart of the Jovanovic direction concerns a prosecution witness’ motive to lie. It is a reminder that it would be “wrong… to conclude” that a prosecution witness is telling the truth merely because there is no apparent reason for the witness to lie.

The prosecutor noted that counsel for Ms Dau had submitted that Ms Garang had a motive to lie about the offences (namely to cover up her role in the incident where Ms Dau’s bag was burnt) and that counsel for KK Makoi had submitted that KK Makoi had been framed by Ms Garang. In these circumstances, the prosecutor accepted that a Jovanovic direction would be appropriate in the case against KK Makoi and Ms Dau. However, he submitted that directions as to onus of proof would be a sufficient safeguard in respect of the remaining accused, who did not make an express submission concerning a motive to lie.

I consider it to be appropriate to direct myself in accordance with Jovanovic in the case against each accused. I note that such a direction is entirely consistent with the fundamental directions concerning the onus of proof and does not operate to the forensic disadvantage of the prosecution.

Complaint evidence

There is no dispute between the parties as to the content of the directions concerning complaint evidence. However, counsel for Achan Matot and KK Makoi each submit that the directions should also apply to Ms Garang’s statement to police dated 30 June 2020. The prosecutor submitted that such a direction should not be made, emphasising that this statement had not been adduced as evidence of complaint.

It was not entirely clear why counsel for Achan Matot and KK Makoi sought that this statement be included in the complaint direction. The first aspect of the complaint direction (that is, that the statement can be used as “additional” evidence of the events described by Ms Garang) could only operate to the disadvantage of each accused. I presume that each counsel rather sought to ensure that I consider this statement in assessing Ms Garang’s credibility.

I will not include Ms Garang’s statement to police dated 30 June 2020 in the complaint direction, but I will give careful consideration to this statement, including any inconsistencies between the statement and the evidence given by Ms Garang, when assessing Ms Garang’s credibility.

Warnings

As indicated in Annexure “B”, I have given myself a strong warning concerning the evidence of Ms Bol. There was no dispute between the parties in respect of the substance of this direction. However, the prosecutor objected to the inclusion of the following additional direction:

I must also consider the circumstances in which Ms Bol’s evidence concluded when assessing the credibility and reliability of the evidence that Ms Bol gave in court prior to her departure and the account that she gave to Constable Maher on 22 June 2020 (Exhibit 18).

The prosecution submitted that this paragraph should not be included because:

(i) It is unfair and only invites speculation about why the witness was no longer available in circumstances where she had in fact answered some questions about the differences during cross-examination and there may be other reasons quite apart from the one put forward by the accused, why she became unavailable which cannot be explored; and

(ii) It is not necessary in circumstances where there is already effectively a forensic advantage direction and an unreliability warning about her evidence.

I am of the view that I should take into account the circumstances in which Ms Bol’s evidence concluded when considering her credibility and reliability. The fact that Ms Bol immediately departed when she was confronted with an allegation as to inconsistencies in her evidence is relevant to an assessment of her credibility and reliability. Accordingly, I will give myself the direction set out at [118] above.

However, I will also bear in mind that there may be other reasons why Ms Bol may have left when she did. In particular, I note that Ms Bol had been required to attend the AVL location to give evidence on numerous days prior to the date upon which she actually gave evidence. Her evidence was not reached on any of these days, because of delays in the trial caused by the unavailability of the accused and other witnesses. I accept that a possible reason for Ms Bol’s departure may have been her frustration with the trial process and its effect on her life, as opposed to the departure being caused by a recognition that she was about to be caught out as having given false evidence to the Court.

Each of the accused also submitted that my warning to approach Ms Bol’s evidence “with considerable caution” because it was not the subject of cross-examination should also extend to the account that Ms Bol gave to Constable Maher on 22 June 2020 (Exhibit 18). The prosecution opposed this direction.

I am of the view that this additional warning should be given. In her interview with police on 22 June 2020, Ms Bol gave some answers which are inconsistent with the evidence that she later gave on oath. As a result of Ms Bol’s departure, the accused have been deprived of an opportunity to cross-examine Ms Bol on these answers. Accordingly, I will direct myself that I should also approach Exhibit 18 with “considerable caution”.

Findings as to the credibility and reliability of Ms Garang and Ms Bol

Introduction

The evidence of Ms Garang and Ms Bol is central to the prosecution case in respect of the identification of each accused. For this reason, before considering the prosecution case in respect of each individual accused, I will first address the following issues of general application:

(i) Ms Bol’s credibility.

(ii) Ms Garang’s credibility;

(iii) Ms Garang’s reliability (in particular, the reliability of her identification of Nyalat Matot, Achan Matot and Ms Dau).

Ms Bol’s credibility

The departure of Achol Bol has created particular difficulties for this trial.

Generally speaking, when a witness is not able to complete their evidence, it is usual for that witness’ evidence to be excluded. In the present case, for the reasons outlined at [90] – [101] above, Ms Bol’s evidence and her interview with Constable Maher were admitted into evidence in the case of each accused (with the exclusion of specified evidence in the cases of each accused other than KK Makoi). However, it remains necessary to determine the weight to be given to this evidence.

The prosecutor submitted even if I had concerns about the credibility or reliability of Ms Bol’s in court evidence, I could still safely rely on Ms Bol’s interview with Constable Maher (Exhibit 18). He noted that Ms Bol was interviewed “within minutes [of the incident occurring]… possibly up to 30 minutes but certainly less than that”. He submitted that the brief interval between the incident and Ms Bol’s interview made it less likely that what she told police was fabricated. He also noted that Ms Bol’s answers in the interview appeared to be spontaneous and unrehearsed and that she answered questions about what happened without hesitation. The prosecutor noted that Ms Bol did not know any of the accused, and that she provided only limited support for Ms Garang in the identification of the assailants. The prosecutor submitted that the limited assistance that Ms Bol’s account provided to Ms Garang was a strong indication that Exhibit 18 was not a false account that was the product of collusion.

In contrast, the accused submitted that the Court should not give any weight to either the interview (Exhibit 18) or Ms Bol’s evidence in Court in support of the prosecution case. The accused pointed to various inconsistencies in Ms Bol’s evidence, including:

(i) Ms Bol told investigating police that she was assaulted with a metal pole to the chest (Exhibit 18, Q66), whereas her evidence to the Court was that she was struck to the legs;

(ii) Ms Bol told investigating police that she was woken up by the sound of smashing glass (Exhibit 18, Q18), whereas her evidence to the Court was that she woke up to being hit by women in her bedroom;

(iii) Ms Bol gave evidence in Court that she remembered hearing some of the assailants asking “Where’s the lighter?”, but she did not mention this to police in her interview;

(iv) Ms Bol told investigating police that she did not see anyone pouring petrol within the apartment, but gave evidence in Court that she did see someone pouring petrol on Ms Garang; and

(v) Ms Bol told investigating police that she did not know any of the intruders who came into the apartment (Exhibit 18, Q21), whereas her evidence to the Court was that she knew one of the intruders to be “Akima”, a person that she had previously lived with (I note that this evidence was excluded in the case of all accused except KK Makoi).

Viewed in isolation, I do not consider that the first two alleged inconsistencies necessarily shed doubt on the credibility of Ms Bol’s account in the interview. It is understandable that a person subject to a serious and unexpected assault may not remember three years later exactly how the assault began, or where they sustained most of the blows. In this respect, I note that Ms Bol was not seriously injured in the assault, and so would not have had a memory of ongoing pain to any specific part of her body. In the interview, Ms Bol appeared to be in distress and in some shock. The interview was short in duration and did not purport to be a complete account of everything that occurred in the course of the incident.

The third, fourth and fifth inconsistencies are more troubling. As to the third and fourth inconsistencies, in the interview, Constable Maher asked Ms Bol about the smell of petrol in the apartment. Ms Bol said that she thought that the assailants had poured petrol everywhere. She said that she didn’t see anyone pour petrol, but that she heard one of the girls was yelling “‘we just petrolled your house’ or something like that”. This account was directly inconsistent with Ms Bol’s evidence in Court that she saw someone pouring petrol on Ms Garang. Further, any discussion about a lighter in the context of petrol being poured would have occasioned real fear. In circumstances where Ms Bol was directly asked about the smell of petrol, it would be surprising for her not to have not mentioned what was said about the lighter, if she had in fact heard that statement. As Ms Bol departed before her evidence concluded, she was not fully questioned about these inconsistencies.

As to the fifth inconsistency, on the evening of the alleged incident, Constable Maher asked Ms Bol whether she knew any of the women who had entered the apartment and assaulted her and Ms Garang. Ms Bol unequivocally answered “No” in answer to this question. However, in her evidence at trial, Ms Bol said that she “knew Akima” and that they used to “live together in Melton”. As Ms Bol decamped before her cross-examination could conclude, the Court is left without an explanation for this important inconsistency. Of course, I bear in mind that this inconsistency only arises in the case of KK Makoi, as a result of exclusions in the cases of each of the other accused.

More generally however, although the inconsistencies raised by the accused do not appear to be significant when considered in isolation and may be explained by the effluxion of time, it is troubling that a number of those inconsistencies relate to topics in which there were also inconsistencies in Ms Garang’s evidence. For example, as outlined below, Ms Garang gave conflicting evidence as to whether someone had poured petrol on the sheets and blankets in her bedroom. Ms Garang also gave evidence that she had told investigating police on 22 June 2020 that Ms Dau was one of the assailants, whereas Constable Elder said that Ms Garang did not identify Akim Dau as one of the assailants until 24 June 2020.

A possible inference to be drawn from the alignment of these inconsistencies is that Ms Garang discussed her evidence with Ms Bol prior to Ms Bol giving evidence in the trial. Ms Bol accepted that in the years that have elapsed since the alleged offending she had conversations with Ms Garang and Achieu Bol and “probably” spoke about the incident with both of them. Because Ms Bol absconded before her evidence concluded, she could not be cross-examined about the scope of these conversations. In the absence of this cross-examination, it is not possible to determine whether Ms Bol’s memory was contaminated by what Ms Garang had told her, or whether the fact of any such discussion indicated that there had been collusion between the witnesses, which would be relevant to findings of the credibility of both witnesses.

I am also not able to determine why Ms Bol departed from her cross-examination at the time that she did. As I have noted above, given the delays in the trial, Ms Bol may have left because of frustrations with the trial process. Another possibility, given the question that was asked of her immediately before she disconnected the AVL, was that she left because of a recognition that at least some of the evidence she had given in court was untruthful or inaccurate. Ms Bol’s departure has left the Court in a position where it is not possible to decide between these possibilities (or any other).

As indicated in Annexure “B” and at [120] – [123] above, I have warned myself that, as Ms Bol’s evidence has not been tested through cross-examination, it may be less reliable than evidence that is tested by cross-examination. For this reason, I have approached both Ms Bol’s in court evidence and the account that she gave to Constable Maher on 22 June 2020 (Exhibit 18) with considerable caution.

Applying that caution in the present case, I have determined not to place any weight on Ms Bol’s evidence, either her in court evidence, or her interview with Constable Maher on 22 June 2020 in support of the prosecution case. There are unexplained inconsistencies between her sworn evidence in court and police interview. In my view it would be unsafe, and unfair, to the accused to place any weight on this evidence.

I will also take into account the possibility of collusion when assessing the weight to be placed on Ms Garang’s evidence in assessing Ms Garang’s credibility.

Ms Garang’s credibility

Introduction

The prosecutor submitted that I should find that Ms Garang was a credible witness because:

(i) She gave evidence in a plausible manner;

(ii) Her in court evidence was supported by evidence of the immediate complaint that she made in the triple 0 call and to Constable Elder on 22 June 2020. In particular, the prosecution submitted that the fact and manner of Ms Garang’s complaint “makes it more likely that she [was] telling the truth about the accused Tabisa Makoi and KK Makoi about what they did”; and

(iii) Her evidence was consistent with her complaint evidence, internally consistent and consistent with the objective evidence.

The accused each submitted that I should find that Ms Garang was not a credible witness because:

(i) The manner in which Ms Garang gave evidence is indicative of dishonesty;

(ii) Ms Garang has lied in Court and to police on various occasions (it was alleged that there are seven separate occasions when Ms Garang should be found to have lied to the Court or to police);

(iii) She has prior convictions for dishonesty offences;

(iv) Her accounts of the events at KK Makoi’s house on 21 June 2020 is implausible;

(v) There are important inconsistencies (both internal and with objective evidence) in Ms Garang’s evidence and in her complaint to police;

(vi) The possibility that Ms Garang colluded with Ms Bol has not been excluded, particularly in circumstances where Ms Bol absented herself before her cross-examination concluded.

I consider each of these matters below.

Ms Garang’s convictions

Ms Garang’s prior convictions are as follows:

(a) On 5 July 2016, Ms Garang was convicted in the ACT Magistrates’ Court of an offence of obstructing/hindering a police investigation contrary to s 725 of the Criminal Code (“the obstruct/hinder offence”); and

(b) On 14 March 2018, Ms Garang was sentenced in the Magistrates Court for possessing a driver’s licence issued to another person, contrary to s 30(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT) (“the Road Transport offence”).

I permitted the counsel for each of the accused to cross-examine Ms Garang pursuant to s 103 of the Evidence Act in relation to each of these convictions over the objection of the prosecutor. I did so because I was satisfied that these convictions had the capacity to substantially affect Ms Garang’s credibility. Of course, the question whether evidence has the capacity to affect a witness’ credibility is different to whether the evidence in fact affects the witness’ credibility.

The prosecution tendered the Agreed Statement of Facts for each of these offences. The Agreed Facts for the obstruct/hinder offence state that on 17 May 2014, Ms Garang attended the Mooseheads nightclub and was involved in an altercation. When interviewed by police in relation to that altercation, Ms Garang said that her name was “Kock-Kedhia Makoi”, and, when she was arrested, she provided a driver’s licence belonging to KK Makoi. In evidence, Ms Garang agreed that she attended court the following day under the name “Kock-Kedhia Makoi”. She said that she went to the police station to correct the situation “shortly after”. However, the Facts record that it was not until 23 July 2014 that Ms Garang finally admitted that she was the person who had provided KK Makoi’s drivers’ licence to police at the Mooseheads nightclub on 17 May 2014.

The Statement of Agreed Facts for the Road Transport offence disclose that Ms Garang was pulled over by police on 7 October 2017 for driving at night without headlights. Police discovered that Ms Garang was driving with a blood alcohol level of 1.186g per 210ml of breath, whilst on a learner’s licence, and was unaccompanied. When police asked Ms Garang for her licence, she produced a licence belonging to another person. Ms Garang gave evidence that she was driving her Aunt’s car, but did not accept that she had shown police her Aunt’s licence instead of her own.

Ms Garang did not unequivocally accept the accuracy of either Agreed Statement of Facts in cross-examination. In respect of the hinder/obstruct offence, she said that when police approached her at Mooseheads nightclub she “got scared” and used the ID that she had in her possession. In respect of the Road Transport offence, Ms Garang said that she “did not recall” giving her Aunt’s licence to police when asked for identification.

I acknowledge that the fact that a person used another person’s ID card (apparently with permission) as a younger person would not, of itself, necessarily undermine that person’s credibility. People can mature, particularly in their early adulthood, and a person’s willingness to use another’s identification is qualitatively different to the person falsely accusing another person under oath of serious offences. The obstruct/hinder offence is of more concern, particularly Ms Garang’s acknowledgement of having attended Court in KK Makoi’s name, although I acknowledge that this offence occurred almost 10 years ago.

KK Makoi’s counsel submitted that Ms Garang’s evidence about these convictions in cross-examination was of more significance. He noted that Ms Garang purported not to recall using her Aunt’s driver’s licence in connection with the Road Transport offence, and wrongly stated that she had attended police “shortly after” the events in question concerning the Mooseheads altercation so as to rectify the situation.

I agree that these matters are of concern. I will take these matters into account when I form my overall conclusions as to whether her evidence in respect of the present allegations should be accepted beyond reasonable doubt.

Ms Garang’s account of the events at KK Makoi’s house on 21 June 2020

I do not accept Ms Garang’s account of the events at KK Makoi’s house, when Ms Dau’s clothes were set on fire, and KK Makoi’s dog, Nipsy, was killed. Ms Garang told the Court that she first found out that Nipsy had died when KK Makoi called her on 21 June 2020 and accused her of running Nipsy over with her car.

Whilst I accept that it is possible that Ms Garang was not aware that KK Makoi’s dog, Nipsy, had been run over, I do not accept her evidence that she did not know how the bag containing Ms Dau’s clothes was set on fire. Ms Garang had gone to the house for the express purpose of returning Ms Dau’s clothes in circumstances where there had been a falling out between herself and Ms Dau. It is highly unlikely that Ms Dau, or any of Ms Dau’s friends, would have set fire to the backpack containing Ms Dau’s clothing.

Further, Ms Garang’s assertion that she and her companions did not discuss what had happened to the backpack on their drive home was implausible. It is extremely unlikely that Ms Garang and her friends did not discuss an event as surprising as the fact that the backpack containing clothes that they had just returned had immediately been set on fire. I do not accept that Ms Garang was giving truthful evidence when she said that she does not know who set fire to Ms Dau’s bag, or that there was no discussion about the lighting of the fire.

I accept that Ms Garang may have been reluctant to disclose what had happened to Ms Dau’s clothes if she or one or more of her friends had been responsible for their immolation. However, I also note that Ms Garang was advised about her right to make an objection under s 128 of the Evidence Act if she felt that her evidence may incriminate her. She did not object to giving evidence on this issue after this warning was provided.

Further, of particular significance is the manner in which Ms Garang gave this evidence. When telling the Court that she had “no idea” how Ms Dau’s bag had become alight and that she did not later discuss the burning bag with Achieu or Achol Bol on the drive home, Ms Garang was direct and forthright and did not appear to be nervous or evasive.

These matters are relevant to my assessment of Ms Garang’s credibility. I will also bear these matters in mind when assessing Ms Garang’s demeanour when giving evidence concerning the alleged offences.

Alleged inconsistencies in Ms Garang’s account of the alleged offending

The accused submit that there are a number of aspects of Ms Garang’s evidence concerning the offences which are implausible or inconsistent with objective evidence. These include:

(a)Inconsistencies in account of injuries sustained: Ms Garang gave evidence that Tabisa Makoi punched her over 50 times in the head and that KK Makoi repeatedly hit her lower body with the wine rack. She also said that she briefly lost her vision, that her jaw was fractured and that she felt her lower back “go numb” during the attack. However, Ms Garang had no broken facial bones, cuts to her face or chipped teeth. In the triple 0 call, Ms Garang only mentioned the injury to her face. She also told ambulance officers she was unsure how many times she was hit in the head and was unable to confirm what she had been hit with. She did not mention any numbness in her lower back to the ambulance officers or to hospital staff: hospital notes report that Ms Garang only complained of having pain in her left leg. There is also no objective evidence of bruises or cuts to Ms Garang’s legs. The ambulance officers recorded that she had “nil vision impairment” and the hospital notes record no complaint being made about Ms Garang’s vision.
(b)Inconsistencies in identification of accused: In her evidence in chief, Ms Garang explained that Achol Bol was not able to assist her during the assault because Achan Matot and “Jessie” were attacking Achol Bol and stopping her from coming into her room. Ms Garang said that she knew that Jessie’s first name was also “Achan”, but that she was not sure what Jessie’s surname was. Ms Garang was adamant that she told investigating police who attended on 22 June 2022 and that “Jessie” was one of the offenders. However, Constable Elder said that Ms Garang only identified KK Makoi and Tabisa Makoi on the night of 22 June 2022.
(c)In cross-examination, Ms Garang said that she told the triple 0 call operator that she had seen Ms Dau damaging her property, but the audio and the transcript of the call only record Ms Garang having made reference to Tabisa Makoi by name and “some girl going around making problems”.
(d)Inconsistencies concerning threats made: In her evidence in chief, Ms Garang did not initially give evidence of hearing any threats made by any of the accused. However, after the prosecution was granted leave to cross-examine Ms Garang, she recalled hearing Tabisa Makoi make a threat to kill her, and that KK Makoi had threatened to “burn her alive”.
(e)Inconsistencies in phone calls: Ms Garang gave evidence that KK Makoi called her twice on 21 June 2020 and accused her of killing Nipsy and threatened her. However, call records for KK Makoi’s mobile phone do not record any phone calls from KK Makoi to Ms Garang, either on the evening of 21 June 2020 or the following morning. Those records do show that Ms Garang made a call to KK Makoi at 12:17pm on 22 June 2020 and that Ms Garang unsuccessfully attempted to call KK Makoi four times at 1:17pm on 22 June 2020. Those calls were unexplained.
(f)Inconsistencies in evidence relating to killing of Nipsy: In her evidence, Ms Garang claimed that she had no knowledge of why KK Makoi and Tabisa Makoi were accusing her of killing KK Makoi’s dog whilst they assaulted her. Further, in a written statement to police dated 30 June 2020, Ms Garang did not mention being at the accused’s house the previous day. Ms Garang stated that Tabisa Makoi punched her and said “you killed my sister’s dog” but she subsequently gave evidence that when she heard this she was “confused and had no idea what she was referring to”. The accused submits that this evidence was inconsistent with Ms Garang’s evidence that KK Makoi had called her and threatened her for killing her dog Nipsy.
(g)Inconsistencies in evidence relating to consumption of marijuana: In her evidence in chief, Ms Garang gave evidence that she did not smoke marijuana on 22 June 2020. However, the hospital records indicate that Ms Garang told doctors that she had consumed marijuana during the day. When this was pointed out to Ms Garang in cross-examination, she said that they had run out of marijuana, and that they were only drinking alcohol and smoking cigarettes.

The accused also submitted that Ms Garang’s account of the event has changed over time, and that these changes also indicate that her evidence was dishonest. In particular, the accused submitted that:

(a)Ms Garang’s evidence as to when she saw Nyalat and Achan Matot differed, in particular, whether she saw them whilst they were in the apartment, or only whilst they were leaving the apartment. The account that she gave in her statement was different to that which she gave in her examination in chief, which was different to that which she gave in cross-examination. It was submitted that these differences were relevant to Ms Garang’s credibility as well as her reliability.
(b)In her evidence in chief on 8 February 2023, Ms Garang said that she did not smell any petrol until after she had got out of her bed and that she did not see anyone actually pour petrol. However, in a conference on 30 January 2023, Ms Garang told the prosecutor and his instructing solicitor that the assailants had poured petrol “everywhere” in her room, including on her blanket and sheets. In cross-examination on 10 February 2022, Ms Garang said that there was petrol on the blanket in her room and on her sheets. However, the ambulance officers made no mention of petrol being on Ms Garang and no witnesses gave evidence of petrol being on Ms Garang or her blankets. Ambulance Officer Mengler agreed that he would have made a note if Ms Garang had been covered in petrol.

With regard to inconsistences in Ms Garang’s evidence, the prosecutor submitted that “with the distance of time of some three years later, it is hardly unsurprising memories are imperfect and recollections differ”. The prosecution submits that the differences in Ms Garang’s account are indicative of an “organic” recollection of what occurred.

In assessing the alleged inconsistencies, I bear in mind that Ms Garang was being asked to recall events that occurred some time ago. As Lord Pearce observed in Onassis v Vergottis [1968] 2 Lloyds Rep 403 at 431:

It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active.

The same is true of an assault. The photographs taken by police on 22 June 2020 depict extensive damage. Practically every item within the apartment that could be broken was broken. The television, the glass table and mirrors were each smashed. Police photographs demonstrate that Ms Garang sustained an injury to her eye. It is understandable that over time, a victim of such an assault may come to believe that the injuries sustained were greater than they were in reality, or that she was struck more times, or to more parts of her body, than was in fact the case. I do not consider that the inconsistencies between Ms Garang’s evidence and her contemporaneous descriptions of the assault and her injuries to ambulance officers and hospital staff (cf [155(a)] above) are such as to shed doubt on the truthfulness of her account. Where there is inconsistency, I prefer Ms Garang’s contemporaneous accounts. Nor, given the effluxion of time, do I consider that the fact that Ms Garang did not recall smoking marijuana during the day of the alleged offences as undermining her credibility (cf [155(g)] above).

I also do not consider that there is an inconsistency between Ms Garang’s evidence that KK Makoi had called her accusing her of killing her dog and her evidence that when KK Makoi and Tabisa Makoi accused her of killing KK Makoi’s dog during the assault, she was “confused and had no idea what she was referring to” (cf [155(f)] above). I accept that Ms Garang may not have been aware that KK Makoi’s dog had been killed. In these circumstances, it is understandable that she may have been “confused” when she woke up to Tabisa Makoi assaulting her and accusing her of killing KK’s dog.

Similarly, Ms Garang’s failure to initially recall KK Makoi’s threats to her do not necessarily demonstrate a lack of honesty in her evidence concerning the commission of the offences (cf [155(d)] above). Despite the clear deficiencies in the AFP’s investigation of the water bottle (which the prosecution submitted contained the petrol), there is no question that petrol was in fact spilt in Ms Garang’s apartment. Constable Blackford, who attended Ms Garang’s apartment on the night of the alleged offending, gave evidence that he “[remembered] smelling a strong smell of petrol on the way up” the stairs to the apartment. Bodyworn footage of Constable Blackford also records comments between attending police officers asking each other where the smell of petrol is coming from. It was after Ms Garang’s memory had been refreshed by reading her statement (in which she stated that remembered hearing KK Makoi say three times “I’m going to burn you alive bitch”), that she remembered KK Makoi’s threat. Ms Garang explained that she had tried not to think about the threat. She also explained that it didn’t really kick in until after a few days that if the women had brought a lighter, things could have “gone really bad”. As the prosecutor submitted, this evidence:

… suggested that it was as though her memory of her fortune that they forgot to bring the yellow lighter, that she wasn’t burned alive has now become her dominant memory; not what the accused said to her in the apartment and what she recounted in her statement only days later (TT431.30).

I accept that this is a possible explanation for Ms Garang’s failure to initially recall the threats in her evidence in chief. However, as I have noted above, it is of concern that this inconsistency related to a matter that was also the subject of inconsistencies in Ms Bol’s evidence (namely, threats surrounding the use of petrol in the apartment).

On careful consideration, I am satisfied that there is no actual inconsistency in Ms Garang’s evidence concerning the pouring of the petrol in her apartment. Ms Garang did not at any time give evidence that she saw any of the offenders in the act of pouring the petrol. Her statement to the prosecutor and his instructing solicitor was that the assailants “had poured” petrol throughout her apartment, not that she saw the assailants in the act of pouring petrol. In her evidence in chief, Ms Garang’s unequivocal evidence was that she did not see anyone pouring the petrol, rather, she first smelt the petrol after the offenders had left and she got out of bed. Ms Garang’s later statement to the prosecution and in cross-examination that she smelt petrol on her blanket and sheets was not inconsistent with her earlier evidence or with the evidence from police and ambulance officers that they did not recall Ms Garang having petrol on her body. Rather, it is consistent with the smell of petrol having spread throughout the apartment by the time Ms Garang returned from the hospital (cf [156(b)] above). Whilst I am of the view that this is not strictly an inconsistency, Ms Garang was cross-examined about this evidence as an inconsistency. It is of concern in these circumstances that this matter aligned with one of the inconsistencies in Ms Bol’s evidence (namely, whether she saw anyone pouring petrol in the apartment).

(vii) The agreed offence, or an offence of the same type, was committed in that the accused or another party to the agreement deliberately caused damage to property belonging to Achol Garang.

(viii) At the time when the offence was committed, the accused and at least one other party to the agreement intended that an offence would be committed under the agreement.

The elements for the offence of damage property are:

1. The accused engaged in conduct (conduct)

Fault: intention

2. The conduct caused damage to property (result)

Fault: intention or reckless

3. The property belonged to someone else (circumstance)

Fault: reckless

Count 4 – the elements of threat to kill[2] by joint commission are:
[2] See Luu v Cook [2008] ACTSC 54 at [20]-[23]

Pathway 1

1. There was an agreement between two or more people (one of whom was the accused) that one or more of them would, threaten to kill Achol Garang (not a threat to do some kind of bodily harm) being reckless that she fear that the threat would be carried out, and in circumstances in which a reasonable person would fear the threat would be carried out.

2. The person and at least one other party to the agreement intended that the offence would be committed.

3. The agreed offence, or an offence of the same type, was committed in that the accused or another party to the agreement threatened to kill Achol Garang, being reckless that she would fear the threat would be carried out and in circumstances in which a reasonable person would fear it would be carried out.

4. At the time that the offence was committed, the accused and at least one other party to the agreement intended that the offence would be committed under the agreement.

Pathway 2

1. There was an agreement between two or more people (one of whom was the accused) that two or more of them would enter unit 8 of 6 Beetaloo Street, Hawker as trespassers (without permission of the occupier) with the intention of assaulting Achol Garang in the building or causing damage to her property.

2. The person and at least one other party to the agreement intended that the offence would be committed.

3. An offence of threat to kill was committed in the course of carrying out the agreement, in that another party to the agreement threatened to kill Achol Garang (not a threat to do some kind of bodily harm) and was reckless that she would fear the threat would be carried out and in circumstances in which a reasonable person would fear it would be carried out.

4. At the time that the offence was committed, the accused was reckless about the commission of the threat to kill offence that the other party to the agreement in fact committed in carrying out the agreement.

The elements for the offence of threat to kill are:

(i) The accused made a threat to kill another person (not a threat to do some kind of bodily harm).

(ii) The accused intend that the victim fear, or was reckless that the victim would fear, that the threat would be carried out.

(iii) The threat was made without lawful excuse.

(iv) The threat was made in circumstances in which a reasonable person would fear that it would be carried out.

There are transferred charges of common assault in respect of the accused Achan Matot and Kock-Kedhia Makoi. The elements of common assault are:

1. The accused deliberately applied force to another person.

2. The conduct was without the consent of the other person.

3. The application of force was without lawful excuse.

Annexure “B”: Directions

Onus and Standard of Proof

The burden of proof of the guilt of the accused is placed squarely on the prosecution. That burden never shifts to the accused. An accused is presumed to be innocent unless and until the prosecution persuades the court that the accused is guilty beyond reasonable doubt.

It follows that if I am left unable to decide whether the prosecution has proved its case beyond reasonable doubt in respect of any of the accused, even though I might suspect that any of the accused committed any of the offences, that accused is entitled to the benefit of that doubt and I must find her not guilty.

Fact Finding

The facts that I find must be based on the evidence; that is, the evidence given by the witnesses and that are contained in any exhibits. In addition, in assessing the evidence, I must apply my common sense. I must do so with an open and unbiased mind, hearing the evidence clinically and dispassionately and not letting emotion enter into the decision-making process. The prosecution and each of the accused are entitled to my verdict free of partiality, prejudice, favour or ill will.

I am not required by any rule of law, logic or common sense to accept a witness wholly or to reject a witness wholly. I can accept everything that a witness has said if I consider all of it worthy of acceptance. I can reject everything that a witness has said if I consider none of it worthy of acceptance. Or I can accept that part of a witness’ evidence that I consider worthy of acceptance and reject the rest of that witness’ evidence if I consider it unworthy of acceptance.

Inferences

I may draw reasonable inferences from the facts that I find are established. I must examine any possible inference to ensure that it is a justifiable inference, and I must not draw an inference from the direct evidence unless it is a rational inference in all of the circumstances.

Joint trial

This is a joint trial of five accused. This is simply a matter of administrative convenience. I must consider the case against each accused person separately when considering my verdicts. I will return a separate verdict in respect of each individual accused. There is nothing in law, or for that matter in common sense, which requires me to return the same verdict in respect of each individual accused. I will not determine whether the accused are guilty without considering them as individuals and giving each separate consideration. Simply because the prosecution alleges that they are all guilty of the same offence, it does not follow that I will approach my deliberations in the same way.

The evidence adduced by the prosecution to prove the guilt of the accused Kock-Kedhia Maker Makoi is different to the evidence adduced in the prosecution case against the remaining accused.

I must not take into account in deciding whether the prosecution has proved its case against one accused, evidence that was tendered only against another accused. It would be a breach of my duty to decide the case according to law, as well as grossly unfair, to use evidence against an accused which the prosecution did not rely upon in proof of its case against her.

AVL

In this trial, Ms Garang and Ms Bol gave their evidence by audio-visual link from a room that was remote from a courtroom. This is usual practice. I must not draw any inference adverse to the accused and I must not accord Ms Garang or Ms Bol’s evidence any greater or lesser weight because these practices were followed: ss 4AF, 64, 101 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT).

Murray direction

Ms Garang was the critical prosecution witness and the only prosecution witness capable of giving direct evidence that Akim Dau, Achan Matot and Nyalat Matot were persons in Ms Garang’s apartment at the time of the alleged offences.

I must examine Ms Garang’s evidence carefully before deciding whether I accept the key aspects of her evidence on these issues beyond reasonable doubt: R v Murray (1987) 11 NSWLR 12 at [19].

Jovanovic direction

In respect of each accused, I give myself the following directions about the question whether Ms Garang would fabricate serious allegations against each or any of the accused:

1. As outlined above, the essential elements of the Crown case must be proved beyond reasonable doubt or the accused must be acquitted. Where the charges turn on the evidence of Ms Garang, I must be satisfied beyond reasonable doubt that Ms Garang has told the truth.
2. As outlined above, it is my duty to decide whether I accept the evidence of a witness in whole or in part. Ms Garang is no exception to that.
3. It would be wrong for me to conclude that Ms Garang is telling the truth because there is no apparent reason for Ms Garang to lie. People lie for all sorts of reasons. Sometimes it is apparent. Sometimes it is not. Sometimes the reason is discovered. Sometimes it is not. I cannot be satisfied that Ms Garang is telling the truth merely because there is no apparent reason for Ms Garang to have made up these allegations. There might be a reason for Ms Garang to be untruthful that nobody knows about.

Ms Bol’s evidence (a combined Mahmood and s 165 direction)

Ms Achol Bol absented herself from the proceedings after her evidence in chief and shortly after cross-examination had commenced.

I must not speculate about what Ms Bol would have said if she had completed her cross-examination.

However, as the prosecution must prove guilt beyond reasonable doubt, I must take into account that Ms Achol Bol did not conclude her evidence, and that her cross-examination was cut short, in deciding whether there is a reasonable doubt about each of the accused’s guilt.

In particular, I must take into account that Ms Bol’s evidence could not be tested in relation to matters including, but not limited, to the following:

Ms Bol’s evidence that one of the people in the apartment was referred to as “KK”;
whether Ms Bol colluded with Ms Garang to give false evidence about the events of 22 June 2020;
inconsistencies between Ms Garang’s evidence and Ms Bol’s evidence;
inconsistencies between Ms Bol’s evidence in Court and the account that she gave to Constable Maher on 22 June 2020 (Exhibit 18); and
the events of 21 June 2020, when clothes belonging to the accused Dau were burnt and the accused Kock-Kedhia Maker Makoi’s dog was killed.

I must also consider the circumstances in which Ms Bol’s evidence concluded when assessing the credibility and reliability of the evidence that Ms Bol gave in court prior to her departure and the account that she gave to Constable Maher on 22 June 2020 (Exhibit 18).

I warn myself that, as Ms Bol’s evidence has not been tested through cross-examination, it may be less reliable than evidence that is tested by cross-examination. For this reason, I must approach both Ms Bol’s in-court evidence and the account that she gave to Constable Maher on 22 June 2020 (Exhibit 18) with considerable caution.

Complaint evidence

The prosecution relies on the evidence of Ms Garang having made complaints in the triple 0 triple 0 call and to Police Constable Elder on 22 and 24 June 2020. The prosecution also relies on evidence of Ms Bol making a complaint to PC Maher on 22 June 2020.

This evidence is referred to as “complaint evidence” or “evidence of complaint”. I will use those terms as a shorthand description of this evidence.

The first issue that I must decide is whether to accept that Ms Garang and/or Ms Bol made the alleged complaints. The accused did not dispute that the complaints were made.

If I accept that a complaint or complaints were made, the following directions apply to how each complaint may be used.

Section 60 use

The first way in which the evidence may be relevant is that it can be regarded as additional evidence of the events described by Ms Garang. In other words, in addition to the evidence of Ms Garang in this Court, there is also evidence of her complaints as made to the triple 0 triple 0 call operator and to PC Elder. Similarly, in addition to the evidence of Ms Bol, there is also evidence of her complaint made to PC Maher.

Credibility use

The second way the evidence of complaint may be used is that it can be relevant to the truthfulness of each witness’ evidence in court. The prosecution says that the fact Ms Garang made complaints when she did and in the manner in which she did makes it more likely she is telling the truth about the matters that she complained of.

Similarly, the prosecution says that the fact Ms Bol made complaints when she did and in the manner in which she did makes it more likely she is telling the truth about the matters that she complained of.

In this respect, I must consider whether each of Ms Garang and Ms Bol’s conduct was consistent with the allegations made. In other words, did each act in the way I would expect her to act if they had each been assaulted as they each claim? Relevant considerations will include the timing of the complaints and the way each of Ms Garang and Ms Bol appeared when making the complaints.

In considering whether there was consistency between the allegations and the conduct of Ms Garang and Ms Bol in complaining, I can take into account any differences between the versions provided (including, but not limited to, the parties named) in assessing the witness’ credibility and reliability. In doing so I must however, also bear in mind that different people have different personalities. In a given situation they might not all behave in the same way. In this case I am being asked to consider each of Ms Garang and Ms Bol and the way in which each reacted to the experience that they each says they had.

I must bear in mind that just because a person says something on more than one occasion it does not mean that what is said is necessarily true or reliable. A false or inaccurate statement does not become more reliable just because it is repeated.

Identification evidence

There is an important direction I give myself concerning the evidence of Ms Garang in which she identified the accused Nyalat Matot, Achan Matot and Akim Dau as persons who were present in her apartment while she was being assaulted and her property was being damaged.

This direction relates only to the reliability of the identification evidence given, not to Ms Garang’s honesty. I must separately be satisfied beyond reasonable doubt of her honesty.

Identification evidence may be unreliable and there are a variety of reasons why that is so.

I must approach evidence that each of these accused has been identified by Ms Garang with special caution before I accept it as reliable. A witness may be honest, but that does not necessarily mean that the witness will give reliable evidence. Because the witness who gives evidence of identification honestly and sincerely believes that their evidence is correct, that evidence will usually be quite impressive, even persuasive. So here, even if I conclude that Ms Garang was entirely honest in the evidence that she gave, I must still approach the task of assessing the reliability of her evidence with special caution.

Special caution is necessary before accepting identification evidence because of the possibility that a witness may be mistaken in their identification of a person accused of a crime. The experience of the criminal courts over the years, both here in Australia and overseas, has demonstrated that identification evidence may turn out to be unreliable. There have been some notorious cases over the years in which evidence of identification has been demonstrated to be wrong after innocent people have been convicted.

I must carefully consider the circumstances in which Ms Garang made her observations of the each of the accused Nyalat Matot, Achan Matot and Akim Dau, as the circumstances in which Ms Garang made her observations may affect the reliability of her identification evidence.

There are a number of matters that have been specifically raised in this case that require my consideration:

(a)What opportunity did Ms Garang have to make her identifications and what were the circumstances of those identifications? In particular, I must bear in mind:
(i)The effect of any alcohol and/ or other drugs that Ms Garang had consumed earlier that day;
(ii)The length of the time that Ms Garang had to make the identifications;
(iii)In respect of the identifications said to have been made in the bedroom, Ms Garang’s evidence that she was being assaulted at the time of the identifications;
(iv)The size of the bedroom from which Ms Garang made those observations;
(v)Ms Garang’s position on the bed at the time she made the observations, the position of the door through which Ms Garang said that she made her observations, and the extent to which other room(s) could be seen through that door;
(vi)The number of other persons in the bedroom, and whether their position(s) obstructed Ms Garang’s view;
(vii)In respect of the identifications made outside the bedroom, the relative positions of Ms Garang and the persons who were identified.

(b)Was Ms Garang under any stress, pressure or suffering any injury at the time that the identifications were made (in particular from the alleged assaults and the damage to her property)? If so, I must consider how that stress might have affected her ability to accurately observe each of the persons identified and to store the image of each of their appearances in her memory.
(c)When was Ms Garang first asked to identify the people involved? When did Ms Garang first identify the accused Nyalat Matot, Achan Matot and Akim Dau? How fresh was Ms Garang’s memory at the time that she first identified each of the accused Nyalat Matot, Achan Matot and Akim Dau?
(d)How well known were Nyalat Matot, Achan Matot and Akim Dau to Ms Garang? When were each of them last seen by Ms Garang? What information was told to Ms Garang by Ms Bol about the other women in the apartment? Is there a possibility of transference or “guilt by association”? Is there any prospect of contamination of Ms Garang’s memory. In particular, whether being told “Achan” was present and/or believing she had seen Achan Matot on 21 June 2020 may have increased the likelihood she would incorrectly include Achan Matot as one of the offenders?

I must give consideration to each of those matters. Any one of those circumstances may possibly lead to error.

Expert evidence

In this case, Joshua Schwartz, Lisa Nicholson and Benjamin Cabot were called as expert witnesses.

The value of any expert opinion very much depends on the reliability and accuracy of the material which the expert used to reach his or her opinion. It also depends on the degree to which the expert analysed the material upon which the opinion was based, and the skill and experience brought to bear in formulating the opinion given. Experts can differ in the level and degree of their experience, training and study, yet each can still be an expert qualified to give an opinion where that opinion is based on that witness’s specialised knowledge.

In the present case, expert evidence was admitted to provide me with me information in the areas of DNA, fingerprints and flammable substances, and an opinion on these topics. These topics are within each witness’ expertise but are likely to be outside the experience and knowledge of the average lay person.

The expert evidence is before me as part of all the evidence to assist me in determining whether the prosecution has proved the charges beyond reasonable doubt.

I bear in mind that if, having given the matter careful consideration, I do not accept the evidence of the experts, I do not have to act upon it. This will be particularly so if the facts upon which the opinion is based do not accord with the facts as I find them to be. I am also, to a degree, entitled to take into account my common sense and my own experiences if they are relevant to the issue upon which the expert evidence relates.

The accused did not give evidence

None of the accused have given evidence in response to the prosecution case. However, as outlined above, the prosecution bears the onus of satisfying me beyond reasonable doubt that the accused is guilty of the offence charged. There is no obligation on an accused person to give or call evidence in a criminal trial. Each of the accused are presumed to be innocent until I am satisfied beyond reasonable doubt by the evidence led by the prosecution that she is guilty of the offences charged.

It follows that each of the accused are entitled to say nothing and make the prosecution prove her guilt to the high standard required. I cannot use any accused’s decision not to give evidence in any way at all during the course of my deliberations, nor can I use it as strengthening the prosecution case or in assisting the prosecution to prove its case beyond reasonable doubt. I must not speculate about what might have been said in evidence if the accused had given evidence.

Character evidence

I additionally direct myself in relation to good character.

The prosecution accepts that:

The accused Achan Matot does not have a previous conviction for burglary;
The accused Akim Dau does not have any prior convictions;
The accused Kock-Kedhia Maker Makoi does not have any prior convictions for burglary or assault.

I must take each of the accused’s good character and reputation into account in their favour on the question of whether or not the prosecution has proved their guilt beyond reasonable doubt.

The accused’s good character and reputation do not provide them with a defence. People of good character and reputation do commit criminal offences. Every offender has committed a first offence and, before doing so, was a person of good character and reputation.

The fact that the accused is a person of good character and reputation cannot prevail over, or provide a defence to, evidence of guilt, if the prosecution has proved beyond reasonable doubt that the accused is guilty of the offence.

Good character is not advanced in the case of the accused Nyalat Matot or the accused Beich Maker Makoi. Of course, I draw no adverse inference in relation to the absence of evidence of good character in the case of the accused Nyalat Matot or the accused Beich Maker Makoi.

[2023] ACTSC 125

26 May 2023