Godwin v The King

[2025] NSWCCA 134

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Godwin v R [2025] NSWCCA 134

Hearing dates:

25 July 2025

Date of orders:

27 August 2025

Decision date:

27 August 2025

Before:

Ward P at [1]; Hamill J and Dhanji J at [153]

Decision:

1.   Extend time for the filing of the Notice of Appeal to 24 March 2025 and direct that this be treated as an application for leave to appeal.

2.   Grant leave to appeal.

3.   Dismiss the appeal.

Catchwords:

CRIME – Conviction appeal – Specially aggravated break and enter dwelling house and commit a serious indictable offence (intimidation, armed with a dangerous weapon) – Fire firearm in a manner likely to endanger the safety of other persons – Possess firearm, not being authorised by licence or permit – Whether guilty verdict unreasonable and not supported by the evidence

Legislation Cited:

Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 10(1)(b)

Evidence Act 1995 (NSW), ss 38, 165(1)(a)

Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5(5)

Cases Cited:

BA v The King (2023) 275 CLR 128; [2023] HCA 14

Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25

Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30

M v The Queen (1994) 181 CLR 487; [1994] HCA 63

Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50

Ozgen v R (Cth) [2025] NSWCCA 65

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12

Shepherd v R (1990) 170 CLR 573; [1990] HCA 56

SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13

The King v ZT [2025] HCA 9; (2025) 99 ALJR 676

Category:

Principal judgment

Parties:

Duncan Godwin (Applicant)
Rex (Respondent)

Representation:

Counsel:
S Howell with C Akthar (Applicant)
F Sullivan (Respondent)

Solicitors:
James & Jaramillo Lawyers (Applicant)
Director of Public Prosecutions (Respondent)

File Number(s):

2021/00059075

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

21 August 2023, 19 October 2023

Before:

M Allen SC DCJ

File Number(s):

2021/00059075

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant (Duncan Godwin) was convicted on 19 May 2023 on three counts relating to the discharge of a firearm on 1 March 2021. On 19 October 2023, the applicant was sentenced to an aggregate term of 7 years and 4 months’ imprisonment, with a non-parole period of 4 years and 8 months.

The Crown case was that, after conflict between the applicant and his son (Jack), the applicant: went to Jack’s home with a loaded firearm; banged loudly on the front door; swore at Jack and demanded that Jack come outside; unlawfully entered the home; threatened Jack’s partner, Brittany Tekely, in the presence of her four year old daughter; discharged the firearm into the floor outside the upstairs bedroom; and fired a number of rounds from the firearm downstairs. On the Crown case Jack, on hearing the applicant banging on the front door, ran out of the back door to a neighbouring house where a 000 call was made by the neighbour and in which Jack participated. By the time police arrived at the scene, the applicant had left as a passenger in his friend’s truck.

The applicant sought to appeal his conviction on a single ground of appeal, namely that the verdict of the jury was not supported by the evidence and was unreasonable. The applicant required an extension of time in respect of his appeal (s 10(1)(b) of the Criminal Appeal Act1912 (NSW) and rule 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW)). The applicant also required leave to appeal pursuant to s 5(1)(b) of the Criminal Appeal Act as the sole ground of appeal did not involve a question of law alone.

The Court held (Ward P, Hamill and Dhanji JJ agreeing with additional joint reasons), dismissing the appeal:

1. While neither Jack nor Ms Tekely gave accounts in their evidence in chief sufficient to convict the applicant, the objective evidence and contemporaneous accounts given to police at the scene by them were sufficient to prove the guilt of the applicant beyond a reasonable doubt. It was open to the jury not to experience a reasonable doubt as to the applicant’s guilt of the offences of which he was convicted. In reaching their conclusion, it was open to the jury to reject the suggestions that Jack and Ms Tekely had concocted a version of events falsely to accuse the applicant of discharging a firearm in the house and to reject the applicant’s contention that Jack invited the applicant to enter the house through a side door: [139]-[149] (Ward P); [163]-[164], [167]-[171] (Hamill and Dhanji JJ).

   M v The Queen (1994) 181 CLR 487; [1994] HCA 63; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13; Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12; Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25; The King v ZT [2025] HCA 9; (2025) 99 ALJR 676; Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50 applied. BA v The King (2023) 275 CLR 128; [2023] HCA 14 considered.

2. As to the application for an extension of time for the filing of the Notice of Appeal (which was not opposed by the Crown in oral or written submissions), there was an explanation proffered for the delay which, though not wholly satisfactory, raised matters beyond the control of the applicant. The extension of time was granted as was leave to appeal: [150] (Ward P); [154] (Hamill and Dhanji JJ).

   Ozgen v R (Cth) [2025] NSWCCA 65 cited.

JUDGMENT

1. WARD P: In this matter the applicant (Mr Duncan Godwin) seeks leave to appeal his conviction on 19 May 2023 on three counts relating to the discharge of a firearm in his son (Jack Godwin)’s home in Caddens on 1 March 2021 (see below). There is a single ground of appeal, namely that the verdict of the jury was not supported by the evidence and is unreasonable.

2. On 19 October 2023, the applicant was sentenced to an aggregate term of 7 years and 4 months’ imprisonment, with a non-parole period of 4 years and 8 months. The applicant is presently eligible for release to parole on 19 July 2026. There is no appeal against sentence.

3. The applicant requires an extension of time in respect of his appeal (s 10(1)(b) Criminal Appeal Act1912 (NSW) (Criminal Appeal Act) and r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW)). A Notice of Appeal was filed on 24 March 2025, after the expiry of the relevant time for appeal. No affidavit in support of that application was filed in the present proceedings until after judgment was reserved (and then only pursuant to directions that this be done). In essence, the explanation for the delay relates to the need to obtain transcripts for a merits review by counsel appearing on the appeal (although that does not explain the delay before counsel was instructed in the matter).

4. The applicant also requires leave to appeal pursuant to s 5(1)(b) of the Criminal Appeal Act as the sole ground of appeal does not involve a question of law alone.

5. For the reasons that follow, both the necessary extension of time for the filing of the Notice of Appeal and leave to appeal should be granted but the appeal should be dismissed.

Trial

6. The applicant was tried in the District Court before Allen SC DCJ, as his Honour then was, and a jury between 3 and 19 May 2023 on an indictment containing the following counts:

Count 1:   Specially aggravated break and enter dwelling house and commit a serious indictable offence (intimidation, armed with a dangerous                           weapon)

Section 112(3), Crimes Act 1900.

Count 2:   (In the alternative to Count 1)

Use offensive weapon (a firearm) with intent to commit an indictable offence (intimidation).

Section 33B(1)(a), Crimes Act 1900.

Count 3:   Fire firearm in a manner likely to endanger the safety of other persons

Section 93G(1)(c), Crimes Act 1900.

Count 4:   Possess firearm, not being authorised by licence or permit

Section 7A(1), Firearms Act 1996.

7. The circumstances of special aggravation related to the allegation that at the time the applicant was armed with a dangerous weapon – a firearm (see AT 3.48). All of the counts related to the same incident. As adverted to above, the applicant was found guilty of Counts 1, 3 and 4.

8. Briefly, the Crown case was that, after conflict between the applicant and his son (Jack) over an amount of about $3,000 owing by Jack to the applicant (and after an incident in the days before 1 March 2021 in which Jack and his partner, Brittany Tekely, went to the applicant’s home and the applicant damaged Ms Tekely’s car), the applicant: went to Jack’s home with a loaded firearm; unlawfully entered the home; threatened Ms Tekely in the presence of her four year old daughter; discharged the firearm into the floor outside the upstairs bedroom (where Ms Tekely and her daughter were at the time); and fired a number of rounds from the firearm downstairs (including at the television and in the kitchen).

9. The Crown’s case was that, when the applicant went to Jack’s home, the applicant banged loudly on the front door, swore at Jack and demanded that Jack come outside; that Jack ran out of the back door and heard a gunshot; and that Jack ran to a neighbouring house (Mr Batsirai Maringehosi’s house), around the corner on Fouad Way, and a 000 call was then made by Mr Maringehosi in which Jack participated.

10. Following the incident, Jack and Ms Tekely were directed by police to leave the house due to it being declared a crime scene. They each took bags with them when they left; and the applicant here emphasises that neither they nor their bags were searched (9/05/23; T 172.28-29).

11. The applicant had been driven to and from Jack’s house that day by the applicant’s friend, Mr Clayton Stichter. When they returned to the applicant’s house, the applicant was drinking.

12. The applicant’s house was under surveillance by the police from about 6.30pm that day, during which time a number of people had been observed moving around the property, particularly a shed; and several vehicles had attended the property (9/05/23; T 245.30-50).

13. Mr Stichter’s car left the applicant’s house at 9.10pm. The police pulled the car over. Forensic testing was carried out on the car. Gunshot residue was found on the passenger side of Mr Stichter’s car, though there was no evidence about where on the passenger side it was found (9/05/23; T 262.26-45; T 360.1-31). The driver’s side of the vehicle was not tested (10/05/23; T 369.49-50; T 370.1). The evidence at trial was that gunshot residue could be transferred onto someone near a discharging firearm, even if that person was not the shooter (9/05/23; T 263.15-40).

14. The applicant was arrested at 9.30pm that day. When arrested, the applicant was highly intoxicated (9/05/23; T 200; T 247.31-35) and was wearing a black Everlast branded t-shirt and jeans. Gunshot primer was present on a sample taken from the applicant’s clothes. However, as there was no control sample taken, the forensic expert gave evidence that the sample did not pass acceptance criteria for a positive sample and it could not be determined where the particles came from (9/05/23; T 260.38-43; T;261.9-10; T 264.13-15). No firearms were seized at either Jack’s house or the applicant’s house.

15. At trial, the Crown relied on the contemporaneous accounts given by both Jack and Ms Tekely to the police shortly after the incident, as recorded on the body worn camera worn by Senior Constable Gary Sewell and in statements made by them to the police officer in charge (Detective Senior Constable Mushen Bayazidi) and Detective Senior Constable Simone Junee, as well as the representations contained in the 000 call to the police.

16. The Crown also relied on CCTV footage from neighbouring houses. The applicant urged this Court to view that footage (and the applicant’s counsel went through some of that footage when it was viewed in the course of the hearing of the appeal) as well as to view and/or listen to the footage from the body worn camera and the 000 call.

17. There were three sets of CCTV footage.

18. Exhibit K was taken from a neighbouring house on O’Connell Street. This depicted the applicant arriving on O’Connell Street in a white Isuzu truck driven by Mr Stichter and being dropped off opposite Jack’s house; the applicant exiting the passenger seat of the Isuzu truck; the truck driving off and then returning to park in the same spot on O’Connell Street; and the applicant then returning to the vehicle (the relevant timeline is explained in more detail below).

19. Exhibit B was taken from a neighbouring house on Fouad Way. It depicted Jack going to his neighbour’s home at a time proximate to two loud sounds (that the Crown contended were gunshots but which the applicant argued were similar to the sounds of a metal gate banging in the wind – see below).

20. Exhibit 4 (which was a different portion of the CCTV footage from which Ex B was taken) showed Jack walking back to his home after the 000 call and having a telephone conversation (part of which could be heard on the footage, including the words “kill” and “police”) on the way back to his home. The parties accept that it could be inferred that the call was to Ms Tekely (although Ms Tekely gave evidence to the effect that the two had not spoken after the incident before speaking to the police) (8/05/23; T 129.24-41). The Crown contended that Jack had said words to the effect “kill you if you call the police”.

21. The body worn camera footage (Ex E), only the first part of which the applicant said was relevant for this Court to view, showed Jack back in the house with Ms Tekely and her daughter, as police asked them to leave the house; and captures various statements by Jack and Ms Tekely.

22. Gunshot damage was observed in various locations of Jack’s home: to the television in the lounge room, to the kitchen/fridge, in the bedroom on the bottom floor, and on the upstairs landing. Five bullet casings were found and subsequent testing confirmed that all were from the same gun.

23. The Crown adduced evidence of a gun holster found in a shed used by the applicant. The Crown also relied on statements made by the applicant in intercepted telephone conversations with others (Ex W).

24. The agreed facts at the trial (Ex L) included that: on 1 March 2021, the applicant was driven from his home to Jack’s home by a friend, Mr Stichter, in the latter’s white Isuzu truck (see [4]-[5]); that the Isuzu truck driven by Mr Stichter was captured on CCTV footage (Ex K), arriving outside Jack’s house on O’Connell Street on 1 March 2021; the applicant exited the passenger side of the truck and approached Jack’s house; the applicant returned to the passenger side of the truck and the vehicle drove away ([8]-[10]); and that a neighbour (Mr Maringehosi) called 000 Emergency Services with Jack on 1 March 2021, in response to which call the police attended Jack’s house that day ([6]-[7]). Further, it was common ground at the trial that Ms Tekely and her daughter were inside the home at the time; that while the applicant was in the home there was a firearm inside; and that a number of rounds were fired from the firearm.

25. Evidence was given at the trial by Jack and Ms Tekely as well as by Mr Maringehosi, Mr Stichter, various of the police officers who attended at the scene and who attended when a search warrant was executed at the applicant’s home, and various forensic experts (as to the gunshot residue, bullets and casings found at the scene, and the gun holster).

26. The applicant, as was his right, did not give evidence.

27. During the course of the trial, the Crown successfully applied pursuant to s 38 of the Evidence Act 1995 (NSW) to cross-examine both Jack and Ms Tekely as unfavourable witnesses. This was because, despite his contemporaneous account of the incident, Jack gave evidence that he did not recall what occurred on that day, as he was on drugs and had a brain injury; and Ms Tekely, inconsistently with her earlier account, gave evidence that she did not see or hear the applicant (though she had heard gunshots, multiple voices and footsteps inside the house). No formal statement was provided to the police by either Jack or Ms Tekely.

Timeline of Events

28. Given the emphasis placed by the applicant in oral submissions on the timeline of the events depicted on Exs K, B and 4, it is convenient at this stage to summarise this. Complicating the consideration of the CCTV footage is that it was accepted that the timestamps on both sets of CCTV footage were incorrect.

29. First, in terms of the chronology, is Ex K, which, as already noted, was taken from a neighbouring house on O’Connell Street and which depicted the arrival and then departure, as well as the return and ultimate departure, of the Isuzu truck driven by Mr Stichter.

30. It was established by reference to the arrival of the first police car on the scene (and the police computer assisted dispatch (CAD) record of that time) that the timestamp on Ex K was inaccurate by 15 minutes (see AT 62.6; 62.50; and the evidence of DSC Bayazidi at (10/05/23; T 356.3-22)). Accordingly, where I refer to the timing of the following events this has been calculated by deduction of 15 minutes from the timestamp shown on the Ex K footage.

31. At approximately 4.40pm (time stamp 16:55:00), Mr Stichter’s white Isuzu truck drove up and stopped on the opposite side of O’Connell Street from Jack’s house. The applicant got out of the passenger side of the vehicle, which then drove off as the applicant walked across the road to Jack’s house. The applicant’s arrival at the house was at approximately 4.41pm.

32. At approximately 4.49pm (time stamp 17:04:12) a bang can be heard (the first bang that can be heard on the footage that was shown to the jury).

33. At approximately 4.50pm (time stamp 17:04:59), Mr Stichter’s truck can be seen returning, from the opposite direction to that from which it had first arrived. The truck performed a U-turn (off-screen) and parked opposite Jack’s house (where it had first stopped to drop off the applicant). (In his evidence at the trial, Mr Stichter said that he drove off after dropping the applicant off because he “had to turn around anyway” (8/05/23; T 140.28); that he went to a shopping centre to turn around and then went back to pick the applicant up; and that when he came past (Jack’s house) the applicant was not there so he turned around and picked him up from the opposite side of the road to Jack’s house (that being where the applicant had been dropped off in the first place (8/05/23; T 141.26-41))).

34. At approximately 4.51pm (time stamps 17:05:41 and 17:05:44) there are two further bang sounds (which would be consistent with the discharge of a firearm in the premises at a time at which it is likely that the applicant was still in the premises).

35. At 4.52pm (time stamp 17:07:22), the applicant can be seen crossing the road back to the Isuzu truck. The applicant got back into the passenger seat of the Isuzu truck, which then drove off.

36. Relevantly, on this timeline, the applicant was at Jack’s house for no more than approximately 11 minutes (arriving at about 4.41pm after being dropped off at 4.40pm and departing just before 4.52pm).

37. Second, as to Ex B (the footage from a neighbouring house at Fouad Way), unfortunately the actual time of the footage was not clarified at the trial. It was accepted that it was inaccurate but the extent to which it was inaccurate was left unclear (see AT 16.25).

38. The first thing noted by the applicant about the footage depicted on Ex B is that it appears to show Jack dropping a sledgehammer (or some such item) on the side of the retaining wall in front of Mr Maringehosi’s neighbour’s house on Fouad Way (that neighbour’s house being the one from which the Ex B and Ex 4 footage was taken). Pausing here, this would be consistent with Jack’s statement (see 9/05/23; T 187.19) to police that he had gone out the back of his house and picked up “a hammer or something to protect myself (and he then went on to say that while he was outside that he heard a gunshot) (see below).

28. The applicant submits that this may not ultimately be particularly significant other than that at one point Jack said that his father had a sledgehammer or an axe and that it can be seen that Jack is armed and that he drops the sledgehammer before knocking on the door of the property at Fouad Way (see AT 19.4ff).

29. The second, and more significant, thing noted by the applicant from this exhibit is that, during the course of the footage on Ex B there are two banging sounds separated by 18 seconds and, shortly following the first of those two banging sounds (and before the second), there is what counsel for the applicant described as a clanking or clinking sound (which he submitted was the sound of the sledgehammer being dropped) (AT 18.13ff).

30. The Crown submitted both at the trial and on appeal that the two banging sounds audible on Ex B were gunshots. The applicant submits that (by comparison with the sounds heard on Ex 4, particularly the one after the police arrived), the more realistic possibility is that they were the sounds of a metal gate between Jack’s house and a granny flat on the property at O’Connell Street banging in the wind.

31. The Ex B footage depicts (during the period inaccurately timestamped 3.50.30pm to 3.53.15pm) Jack going to the front door of Mr Maringehosi’s neighbour’s house, knocking, walking back along Fouad Way and then going to the left of the camera (presumably to Mr Maringehosi’s next door house, which Mr Maringehosi attested he entered through a back door). There is then a break in the footage for about 10 minutes to timestamp 4.03pm, when Jack is seen walking back towards his house and speaking on a mobile phone to someone, who the applicant accepts could reasonably be inferred to be Ms Tekely (AT 20.1).

32. The 000 call was made by Mr Maringehosi from his house while Jack was there (the recording of that call was Ex C; the transcript was Ex D). During the trial there was an issue as to the timing of the 000 call. The call was registered on the police CAD records at 4.57pm. That is consistent with Mr Maringehosi’s evidence that the call was made at approximately 5 o’clock (he added he thought it was three minutes to 5pm or at least “close to 5 o’clock) (8/05/23; T 157.45). However, the Crown had opened its case on the basis that the 000 call occurred at 4.47pm (4/05/23; T 2.45) and maintained that in an application made in Mr Stichter’s absence during the course of his oral evidence (8/05/23; T 147.14-16).

33. DSC Bayazidi gave evidence that the call was recorded at 4.57pm, although he also said that the informant could be on the phone for some minutes before the call was logged (10/05/23; T 357.12-14). Ultimately, DSC Bayazidi clarified the timing of the 000 call (10/05/23; T 41-412) by reference to the CAD created by the operator at 4.57pm, saying that the operator would have created the CAD immediately after the address was given by the caller. The timing for the entry of the address was recorded as 16:57:48 (10/05/23; T 412.37-38). Consistent with this, the entry at 16:57:48 (titled “Significant information”) records the message being timed at 16:57:42 and ending at 16:57:47 (10/05/23; T 412.37-38).

34. Thus, the applicant says that on the objective evidence he had left Jack’s house by 4.52pm and the 000 call was some 5 minutes later at 4.57pm. I accept that the CAD records (coupled with Ex K once account is taken for the 15 minute inaccuracy of the timestamps on that footage) establish that the 000 call was most likely made after the applicant had left Jack’s house. That does not of itself cast doubt on Jack’s belief in the truthfulness of the representations made by Jack to Mr Maringehosi and the police during the 000 call that the applicant was inside the house, since, if Jack went out the back door of his house as he told the police at the time, then his most likely route to Mr Maringehosi’s house would seemingly not have afforded him a view of O’Connell Street. Moreover, Jack’s apparent concern (discernible from his statements on the 000 call) to get back to his house is consistent with a belief that the applicant was in the house (where Ms Tekely and her daughter were) at the time.

35. The applicant points out that the timing of the two noises (or bangs) on Ex B (which were separated by 18 seconds) does not accord with the timing of the bangs on Ex K, which were recorded at timestamp 17:04:12 and then at 17:05:41 and 17:05:44 (the interval between the first and second/third sounds on Ex K being 89 seconds, followed by 3 seconds between second and third) (AT 21.7ff). As already noted, the applicant submits that there is a real possibility that the bangs heard on Ex B may not have been gunshots. In support of this submission, reliance is placed on Ex 4.

36. Exhibit 4 was also taken from the CCTV footage from the house on Fouad Way (from which Ex B was sourced). That footage bears the (again inaccurate) timestamp commencing 3:50:30pm. The applicant points out that police are visible on Ex 4; and that at timestamp 4:19:14pm and 4:19:26pm sounds can be heard that are similar to those said by the Crown to be gunshots but at a time when the police are already on the scene. Hence, the applicant argues that it is not a safe inference to draw that the sounds on Ex B were in fact gunshots (rather than sounds of the metal gate slamming) (AT 22.45-50; AT 24.31-38).

37. The applicant thus argues that the Ex B footage was of less significance in assisting the jury to find beyond reasonable doubt the essential facts necessary to prove the essential elements of the offences as charged.

Evidence of Jack and Ms Tekely

49. Given the applicant’s submission that the evidence of Jack and Ms Tekely was unreliable, it is helpful to summarise that evidence and to highlight the inconsistencies between their contemporaneous (unsworn) statements and their sworn evidence at trial.

Jack

Contemporaneous accounts

50. Jack gave a number of contemporaneous accounts of the alleged incident on 1 March 2021: first, to Mr Maringehosi; then during the 000 call made from Mr Maringehosi’s home; then an account as recorded on the body worn video as well as statements made to DSC Bayazidi and DSC Junee at the scene, and in a conversation with LSC Marks at the scene.

51. As to the account he gave to Mr Maringehosi, Mr Maringehosi gave evidence at the trial that: Jack opened the rear door of his house and entered into his house; that Jack said that he needed to call the police; that Jack looked terrified and was sweating; and that he could see the tension in Jack’s face. Mr Maringehosi said that Jack said “[t]here’s a man in my house. He got a gun”. Mr Maringehosi thought that Jack also said that the man had fired a shot. Mr Maringehosi gave evidence that Jack said “[w]hat type of a man – who does that to his grandchildren”. Mr Maringehosi called 000 and spoke to the operator, before handing his phone to Jack. Mr Maringehosi saw police as Jack walked back towards the house.

52. In the transcript of the 000 call (Ex D), Mr Maringehosi is recorded as saying that Jack had said that the person with a gun had fired the gun. Jack then spoke to the operator and expressed some doubt as to there being a gun but did say “we’ve [in context, he and the applicant] had a big fight, me and [… indecipherable] dad” and that “he’s … screamin’ and looking for me”. Questioned as to whether he saw the person with a gun and whether it had been fired, Jack said he did not know. Jack then said “I, I think he’s got a sledgehammer or an axe, and he’s banging on the door”. Jack said that he did not see the person but that “it’s definitely him. He’s telling me to come outside, you piss weak cunt (?)” and then that the weapon “might be a sledgehammer. It looked like a sledgehammer” and, when questioned again, Jack agreed that he had not seen a gun at all that day. Jack identified the person as his father; and said that he was “just staying up here [at Mr Maringehosi’s house] ‘cause he’s looking for me”. Jack said that his father was “in the house now” with Ms Tekely and his little girl; and reiterated that the applicant was “inside”.

53. On the transcript of the body worn video recording (Ex F, the actual recording being Ex E), when the officer pointed out a bullet hole and had asked if Jack knew what sort of gun it was, Jack said “I don’t know. I fucken, he, he was looking for me. I ran next door to call youse”. Jack confirmed that the applicant was actually inside the house and said that “I just ran because he was looking for me”. Jack said that he did not see what the applicant drove and twice more repeated that he just ran next door to call the police.

54. Asked if it was a pistol, Jack said “I, I think so ‘cause it sounded like one”. After Ms Tekely told police that the applicant “stood at the door” and she was in the room with her daughter, Jack confirmed that “No, he stood at the door. He didn’t come in” (which might simply have been passing on second hand information). When being pressed by police to leave the house, Jack asked if the applicant “is … in the backyard?” and said that he was “just a bit shaken”. Asked what his father was doing and whether he was trying to chase Jack around the house, Jack said that the applicant was a “fucken psycho”.

55. DSC Bayazidi, in the presence of DSC Junee, had a conversation with Jack at the scene (his brief handwritten notes were in evidence) (Ex S). At the trial, DSC Bayazidi recalled that Jack had told him that: he owed his father $3,000; he went to his father’s house the day before and they had an argument; and that his father put an axe through the bonnet of Ms Tekely’s car (10/05/23; T 338). As to the day of the incident, DSC Bayazidi recalled that Jack said that: he was inside his home, with his partner and his partner’s daughter, when he heard a banging and shooting sound coming from the front door; he thought the person responsible was his father; he ran out of the house through the back door (for fear as to his safety) and went to a neighbour’s house and used the phone to call the police.

56. DSC Bayazidi’s notes of his conversation with Jack at the scene included the following: “arguing, dad wants $3,000”; “went to dad’s house yesterday. Put an axe in missus front bonnet”; “today” “banging on door” “axe through a window”, “run to garage. Grabbed sledge hammer. Come around front, dad banged in through side door. Heard gunshots” (about which he gave evidence at 10/05/23; T 343.40-345.39).

57. DSC Junee’s recollection of that conversation (about which she made a statement on 2 March 2021), which she confirmed was not verbatim (9/05/23; T 185), was that Jack said:

I owe my dad some money. We’ve been having some issues for weeks. I went over there yesterday to sort it out with him, and he started carrying on. He grabbed a hammer thing. It had a hammer one end, and like an axe on the other end. He started hitting my girlfriend’s car with it, as you can see [pointing to a small Hyundai parked on the roadway that had damage on the front of it [depicted in Exhibit G].

… I said, “Well you’re not getting your money now until you pay for the car.

He was still carrying on so we left. I didn’t think he’d go this far though. Me, Brittany and our daughter were home when I heard bashing on the front door. I knew it was him straight away. I recognised his voice. He was calling out to me to come outside and stuff. I couldn’t see exactly what was in his hand, but I could see that he was holding something, and he was bashing on the door really loud. He was calling out “Where are you, you little pussy. You little cunt”. I knew it was on, so I rang out the back to try to protect myself with [sic] from the shed. As I was coming back towards the back door I heard him yelling out, and then I heard a gunshot. I ran to my neighbour’s house and asked them to call the police. I didn’t think he’d go this far. He would’ve shot me if I was there. He would have for sure. He came over to kill me. I didn’t know he was coming over, cause I’ve blocked his number. He was ringing me 40 times a day. I’m over him treating me like shit. All my life he’s been saying I’m a loser, I’m not good, I’m weak, you’re a pussy. It’s not the first time he’s come at me with a hammer and stuff. But never did I think he would come to shoot me. He would’ve killed me for sure if I was there before. [9/05/23; T 186-187]

58. Finally, Jack spoke at the scene with LSC Marks. Asked who was the man that came in the house and shot it up, Jack said that it was the applicant. LS Marks recounted that Jack said that he owed the applicant $3,000; that he or his wife or partner had an argument with the applicant about it the previous day, and the applicant put an axe through the bonnet; and that Jack said that he was going to use the money that he owed his father to fix the car and he was not going to pay his father back (9/05/23; T 235-236).

Evidence at trial

59. By contrast, at the trial Jack’s evidence was effectively that he did not recall the alleged incident on 1 March 2021 or most of the surrounding details, or anything that occurred when he saw the applicant prior to 1 March 2021; that he was on drugs at the time and could have said anything due to that drug use (as to which there are far too many transcript references here to note); that he had trouble remembering sometimes due to a brain injury (a fractured skull and bleeding to the brain – see 5/05/23; T 55.31-34); and that he did not recall making any of the representations attributed to him. Jack did accept that he was a part of the 000 call, and that the body worn footage recorded a conversation between himself and police. I note that DSC Bayazidi’s evidence was that he did not observe Jack to be intoxicated by alcohol or affected by drugs.

60. Jack said that the last time before 1 March 2021 that he saw his father was “[p]robably a week. Maybe a week, maybe two weeks” and that this was “[m]aybe at his father’s place” and that he “maybe” went there himself (4/05/23; T 16.6-26). Jack said that he did not remember anything that was discussed that day or how it came to be that he left his father’s home that day (4/05/23; T 16.28-33). Jack said he did not remember that there was a disagreement when he was at his father’s house shortly before 1 March 2021 about him owing his father money or that as a result of that the applicant damaged Ms Tekely’s car (5/05/23; T 59.43-60.9). Jack said he did not remember that long ago (5/05/23; T 61.17).

61. As to the events of 1 March 2021, Jack said that he did not remember whether the front door of his house was open or closed at about 4.30pm although he accepted that if he were at home the usual practice would be for the door to be closed; and that maybe it was closed but the “kids open the door sometimes” (4/05/23; T 16-17). Jack agreed that there was only one child home at the time.

62. Jack said that he was “maybe” upstairs at the time in his bedroom with Ms Tekely and “maybe” the daughter was upstairs too (4/05/23; T 17); as to the rest of the day that he “[m]aybe went outside. Maybe went to the garage, could’ve been in the lounge room”; and at first he said that he was at the house the whole time but then accepted, when it was put to him, that he went next door to a neighbour (4/05/23; T 17-18). Jack said that he did not “really remember” why he went to the neighbour’s house or what he heard immediately before going there or what he saw, saying that “I don’t have a lot of memory, no. At the time I was on drugs, so” (4/05/23; T 18.30; T 19.40; T 24.30-32). Although at 4/05/23; T 18.11, Jack appeared readily to accept that he went next door to a neighbour’s house (“Oh yes, I did”), when asked whether he accepted that he went next door he said “No. I don’t really remember” and later when it was put to him (at 4/05/23; T 19) that he had agreed that he went next door or to a neighbour’s property, Jack again said “I don’t really remember” and as to whether he had given some evidence that he thought he might have left the house on 1 March 2021, he said “look I said it, I’d be lying. I was taking drugs at the time”.

63. Asked if his memory would have been better on 1 March 2021 than when he was giving evidence in court, Jack said “I’d really like to help you, but I do not really remember. I was taking drugs at the time. I was unwell” (4/05/23; T 24).

64. The CCTV footage taken from the neighbouring property on Fouad Way (Ex B) was played to Jack (4/05/23; T 29.7-15). Jack accepted that he was the person depicted in the footage but professed not to remember the events (because he was taking drugs) (4/05/23; T 30.18-48). As to the phone call partially recorded on Ex B, Jack did not accept the proposition that the words “kill if you call the police” were said by him on a phone as he was leaving Mr Marigehosi’s house but he did accept that he could hear the words “kill” and “police” (4/05/23; T 31.46-47). Jack also gave evidence that he heard gunshots in the recording.

65. Similarly, Jack did not remember speaking to a 000 operator and would not accept that he could have spoken to a 000 operator (4/05/23; T 34.45-49), again saying that he was on drugs at the time. When the 000 call was played to Jack (4/05/23; T 39.16), Jack accepted that it was his voice on the call but he said he did not remember the situation or making the phone call and did not remember any of this or saying anything to 000 (4/05/23; T 39.33-49; T 41.34-43; T 42.27). Jack did not agree that he had told the truth to the 000 operator (4/05/23; T 39.44-46).

66. Jack’s mantra throughout his evidence was that he did not remember the “series of events”, did not remember anything, and he would not accept that he could have said various things to the 000 operator (as recorded on the audio tape of the call) because he did not remember doing so.

67. Jack gave essentially the same evidence in relation to the body worn video footage that was played to him. Jack identified himself on the police body worn video but said he did not remember anything and that “Well I was under the influence of drugs, so I could have said anything” (5/05/23; T 49.22; T 42; T 47; T 50.7; see also T 63.30).

68. Again, Jack accepted that he heard gunshots in the video that had been played to him the previous day (Ex B) (5/05/23; T 63.43-49) but maintained that he did not remember “too much what happened on the day”; did not remember any events on the day; and just vaguely remembered the police being there (5/05/23; T 64-65). Jack did not accept that his memory at the time was better than it was when he gave evidence (5/05/23; T 64.28-43), again referring to his being under the influence of drugs and severe brain damage.

69. During the course of his evidence in chief, the Crown was given leave to cross-examine Jack (following an application pursuant to s 38 of the Evidence Act as noted above) as to evidence that he had given during a “Basha” enquiry on 13 April 2022. Jack gave evidence that he did not recall giving evidence at that time (5/05/23; T 55.19-34; T 56.17) (and then requested a break as he was feeling very uncomfortable). It was put to Jack that during the Basha enquiry he had said that the front door was closed before the incident (13/04/22; T 9.1-3). At the trial, Jack maintained that he could not remember (4/05/23; T 56.17).

70. In his oral evidence, Jack said that he had never held a firearm licence but had discharged a firearm overseas (5/05/23; T 51.1-13).

71. Jack disagreed that he was giving evidence favourable to his father because he did not want to get him in trouble when this was suggested to him by the Crown (5/05/23; T 68.20).

72. In cross-examination by the applicant’s counsel, Jack maintained that he did not “really remember” the series of events that happened on 1 March 2021 and that he was “off me face on drugs” (5/05/23; T 69.2). Jack was then cross-examined as to the location of the respective properties and as to the metal gate to the next property (5/05/23; T 73ff) and its propensity to move around or be blown open in the wind and to slam with the wind, as to which Jack agreed that the gate could slam all day in the wind if not properly closed (5/05/23; T 79). Asked anything about the events on the day of the incident, however, Jack maintained that he did not remember and that he was off his face on drugs (5/05/23; T 81.4-9; T 83.2ff). It was put to Jack that the applicant owed him money (as opposed to the account Jack had given to police that it was Jack who owed his father money). Jack agreed that it was possible that the applicant actually owed Jack $3,000 not the other way around; but he said that this would not have upset him if it were the case; and he denied making threats against his father in respect of the money (5/05/23; T 83).

59. The defence version of events was put to Jack, including the suggestion that he told his father to go through the side door; that he had opened the door for him; that it was Jack who had pulled out a pistol upstairs after he and his father argued in Jack’s house and that his father wrestled with him and the gun went off; and that there was further wrestling downstairs because Jack had chased his father down the stairs and this meant the gun went off again a few times (5/05/23; T 84-85). As to whether there was an argument upstairs during which Jack pulled out a pistol, Jack’s response initially was, “No” but then that he did not remember (5/05/23; T 85.5-16). Jack then again denied that he had pulled out the firearm and he denied that he was claiming not to remember what actually happened to protect himself (not to assist his father) (5/05/23; T 85.37-42; T 86.28-29).

60. Jack agreed with the applicant’s counsel that there was a possibility that what he said to police was not accurate because he was on drugs and “wasn’t in the right state of mind” (5/05/23; T 85.48-50; T 86.1-22).

Ms Tekely

Contemporaneous accounts

75. The Crown also relied upon a number of contemporaneous accounts made by Ms Tekely on 1 March 2021, including an account provided to police recorded on body worn video, and an account provided to DSC Bayazidi and DSC Junee at the scene.

76. First, as to the body worn video recording of SC Gary Sewell tendered during the trial, Ms Tekely said that the applicant was wearing the “same as what he had on yesterday. He hasn’t even showered and still drinking from yesterday”, and that he was wearing a black Lonsdale T-shirt, and blue jeans. Ms Tekely said that she looked out the front when the applicant was banging on the door. Ms Tekely said that the applicant did not come into the room (upstairs) but that he stood at the door. Ms Tekely said that she was in the room with her daughter, and that the applicant came upstairs “three, four times” (8/05/23; T 114-116).

77. Second, as to Ms Tekely’s conversation with DSC Bayazidi and DSC Junee at the scene, DSC Bayazidi’s account was that Ms Tekely said that: she heard a banging sound coming from the front, that she recognised the voice as belonging to the applicant; that the applicant was yelling “Where are you cunt”; Jack ran out of the house and she ran upstairs with her daughter and hid in the bedroom. Ms Tekely said that she could hear footsteps coming up the stairs; that the applicant found her upstairs and pointed a gun at her; that the applicant said “I’m going to kill you fucking cunt if you call the police” (which DSC Bayazidi said were in Ms Tekely’s words exactly); that the applicant shot a round upstairs and then went back downstairs. Ms Tekely said that she heard the applicant yelling “come out Jack, you’re piss weak” and she could hear him laughing (10/05/23; T 339.24-340.29) (and see DSC Bayazidi’s notes as read out by him at 10/05/23; T 346).

78. DSC Bayazidi said that Ms Tekely described the firearm as a small brown coloured pistol (10/05/23; T 340.45).

79. DSC Bayazidi gave evidence that Ms Tekely said that the applicant came back upstairs (i.e., a second time) and found her again; and his notes record that Ms Tekely said that the applicant said to her “[i]f you ever come to my house again, you fucking bitch, and disrespect I will kill you, you fucking bitch” (10/05/23; T 347.6-7). Ms Tekely said that the applicant again went back downstairs, and she could hear him yelling, and could hear more gunshots downstairs (10/05/23; T 341.2).

80. DSC Bayazidi’s evidence was that Ms Tekely said that the applicant came back upstairs a third time and found her; that the applicant again pointed a gun at her and said words to the effect “You want to see what happens next? I’m going to have people run through your house at midnight” (10/05/23; T 341.6-11; T 347.31); and that Ms Tekely described the applicant as wearing a black coloured T-shirt with white text on the front (that she thought read “Lonsdale”), blue coloured jeans and black thongs (10/05/23; T 341).

81. DSC Junee’s account of the conversation was that Ms Tekely said that “We had dramas with his dad yesterday and we were at home today when there was banging at the front door. I knew it was him” (9/05/23; T 188.37); that Ms Tekely identified the person as “Jack’s dad, Duncan” because she recognised his voice straight away; and said that he was “banging on the door really loud”. DSC Junee’s notes recorded that Ms Tekely said (8/05/23; T 189):

I ran upstairs with my daughter and Jack went towards the back door. I didn’t think he’d hurt us. We just knew he was there for Jack. I was in the bedroom at the top of the stairs when I could hear Duncan yelling out, “Where is he, the little cunt, you pussy”. Then he started banging on my bedroom door. I opened it a little bit and said “Duncan, why are you doing this? It’s got nothing to do with me. My daughter’s here”. He then raised the gun to my head and pointed it in my face. He goes “I’m going to kill you, you fucking cunt. If you call the police, I’ll kill you”. I said “It’s got nothing to do with me. Why are you doing this?”

82. DSC Junee said that, in response to a question from DSC Bayazidi, Ms Tekely indicated that the applicant was approximately half a metre from her when he pointed the gun at her face.

83. DSC Junee recounted that Ms Tekely also said that:

He then pointed the gun towards the floor near the bedroom door and let off a shot. He was like, “Come out Jack. You’re piss weak”, and then he goes to me, “If you ever disrespect me again you fucking bitch I’ll fucking kill you, you fucking bitch”. I was like, “How did I disrespect you?”

After I said that he walked away from the bedroom. I think he went towards the stairs and then I heard another gunshot coming from downstairs. Then the next minute he came back upstairs and said, “You want to see what happens next? I’m going to have people run through your house at midnight”. I can’t even remember what I said then. He then walked back towards the stairs and I heard another gunshot, and then it was silent. I quickly looked out the window and saw him out the front but I don’t know where he went or what car he was in. [9/05/23; T 189-90]

84. DSC Junee said that, during that conversation, in response to a question, Ms Tekely said that the gun was small and brown; and that it “looked really old, like a pistol, not like your one”. Asked what the applicant was wearing, DSC Junee says that Ms Tekely responded that he was wearing a black T-shirt with white writing, jeans and thongs; and that she thought the writing on the shirt said “Lonsdale” across the front (9/05/23; T 190).

Evidence at trial

85. At trial, Ms Tekely’s evidence was that there had been no incidents between her and the applicant in the lead up to 1 March 2021 and that she was not aware of any incidents between the applicant and others in that time (8/05/23; T 91.40-42); that she did not recall any incidents between herself or others; and that she was not 100% sure where the damage to her car had come from and that it had been like that for a while (8/05/23; T 98.28-38) (and see in cross-examination at T 124.20-41).

86. As to the events on 1 March 2021, Ms Tekely’s evidence was that when she was upstairs with her daughter, she heard a loud knocking noise; that she went to Jack, who was upstairs with her and he told her to stay inside the room; that she stayed in her bedroom with her daughter; and that the door was closed and she did not see where Jack went (8/05/23; T 93-94). Ms Tekely said that she heard footsteps and muffled voices and that the voices were loud; she did not recognise the voices; there were multiple voices (8/05/23; T 95).

87. Ms Tekely heard a shot go off upstairs and was scared; she said that the gunshot sounded “closer” and she was pretty sure that it was upstairs; then she said that “everything kind of muffled away”; she thought there were a few more shots (8/05/23; T 95-96). Ms Tekely said that she opened the door “slightly a little bit” when she could hear noises upstairs but she did not see anything (8/05/23; T 96). Ms Tekely said that at some point it “kind of went quiet” and she went downstairs; that she noticed there was a hole in the television; she was trying to find Jack but could not see him and she went back upstairs; and that the next thing was that Jack returned and said he had been outside (8/05/23; T 96); and that Jack was just concerned that she and the daughter were okay.

88. Ms Tekely remembered that the police arrived and that they did have a conversation but then that she was “not 100%” sure whether she talked to the police about what occurred that day (8/05/23; T 97); however, Ms Tekely thought that she may have spoken with police after she returned to the house (having taken her daughter away from the premises). Ms Tekely said that she noticed damage to the upstairs floor near the staircase.

89. Ms Tekely was shown the body worn footage (Ex E) and provided with the transcript of that footage (Ex F). Ms Tekely identified herself, Jack and her daughter on the footage. Asked whether the things she told the police were the truth she said “[f]rom my memory of what I remember no, I have no idea. On the day itself I don’t even know what was going on” and that she was looking at her daughter the whole time (8/05/23; T 102). Ms Tekely also said that the damage to the wall going up the stairs was already there.

90. The Crown was permitted to cross-examine Ms Tekely pursuant to s 38 of the Evidence Act (the application being based on inconsistencies in her oral evidence with the account that she gave on the body worn video, in her conversation with the police at the time and at a Basha enquiry on 13 April 2022). Taken to her evidence at the Basha enquiry in 2022, Ms Tekely agreed that she had there said that: she had heard a banging on the door (though she likened this to a knocking); she heard a male voice; she heard someone speak and she heard laughter (although she said she did not now remember laughter but she was not too sure) (8/05/23; T 109).

91. Ms Tekely also accepted that at the Basha enquiry she gave evidence that:

There was a bang on the door, and I was with my daughter. I was just trying to hold my daughter because I didn’t know what was going on, and she was on the bed with me, and then there was a bang on the door. And then – so I went to open the door, and because I was in my underwear, I didn’t want to fully open the door. So, I just opened the door a slight bit, and then all I saw was just a gun. That was it.

and that, when asked if she saw a person at all she said “No, that’s it. I just saw a hand and a gun. That’s it”. [8/05/23; T 110]

92. However, Ms Tekely maintained that she just remembered opening the door, closing the door and going straight back to her daughter (8/05/23; T 110); and, while she agreed that she had previously given the above evidence, she said that “I don’t remember if I seen anything though, or if I just – I don’t know” and that she was “not 100%” (8/05/23; T 110).

93. Ms Tekely was adamant that she had heard a gun but said she did not know if she saw one (though accepting that she had previously said that she did). Ms Tekely was then taken to her description in 2022 of the gun (“like a brown kind of looking thing” and “kind of small, in a way”) which she agreed she had given at the Basha enquiry. Ms Tekely accepted that she had said “I saw the gun go down. It shot the floor” but said she did not know why she said that because she did not remember seeing it actually shoot the floor; and said that she definitely heard it go off but that she was on the bed by then with her daughter (see 8/05/23; T 111). Ms Tekely also accepted that she said at the enquiry that before the incident the front door would have been closed “because there was a banging on the door” and she confirmed that her evidence (at the trial) was that the door was closed (8/05/23; T 111-112).

94. Ms Tekely accepted that at the time that she gave evidence at the Basha enquiry she would have been telling the truth but added that “I just have a really bad memory, and I’m not just saying that. I genuinely do” (8/05/23; T 111).

95. Ms Tekely agreed that she must have seen the applicant a few days prior to the incident and that there was an argument but said that she had no idea what the argument was about (8/05/23; T 112-113).

96. Ms Tekely was taken to various of the statements attributed to her in the transcript of the body worn video footage (Ex F). With respect to her statement as to what the applicant was wearing (which suggested that she had in fact seen the applicant on 1 March 2021), Ms Tekely was adamant that she “never saw him [the applicant] that day” and that the applicant wore the same outfit all the time. Ms Tekely insisted that it was physically impossible to look out the front when she was in the bedroom. Ms Tekely accepted that she had told Jack that she had looked out the front when the applicant was banging on the front door but she reiterated she did not look out the front and did not see the applicant banging on the front door (and that she could not physically see that) (8/05/23; T 115). Ms Tekely did not recall the applicant banging on her bedroom door but agreed that there was banging (which she then said was more like knocking) on the front door.

97. When her conversation with DSC Junee was put to her, Ms Tekely accepted that she “must have” said various things but denied that she told DSC Junee that she knew it was the applicant and did not recall saying that she had recognised his voice and was yelling at Jack to come outside and banging on the door. Asked if it was a possibility that she had said those things, Ms Tekely said, first, that she could have but then that she was not too sure; and then volunteered that she did not have the greatest memory. She said that as a result of past trauma she tended not to remember a lot of things when going through traumatic events after which she expressed her extreme frustration and dislike at discussing things “in front of a bunch of strangers” and asked for a break (8/05/23; T 117).

98. After a break, the Crown put to Ms Tekely a number of things that it was suggested were said to DSC Junee and asked whether she agreed that she had said them. Ms Tekely accepted that she had said some of those, or possibly could have said those, but maintained that she did not remember there being banging on the bedroom door and that she did not see anybody standing at the door (8/05/23; T 120). Ms Tekely denied that the applicant had raised the gun to her head and pointed it to her face and said that she did not recall saying that to the police; nor did she recall the applicant threatening to kill her (8/05/23; T 121). Ms Tekely did not agree that she told police that she saw the applicant again after he went downstairs (i.e., after the gunshot upstairs) and said that it did not happen; said that the shot let off upstairs was not near the bedroom; and confirmed that she heard multiple shots downstairs (8/05/23; T 121-122). Again, Ms Tekely was adamant that she did not look out the window and that she did not see the applicant (8/05/23; T 123).

99. When asked whether she was telling the truth when she spoke with the police officers that day, Ms Tekely said “[f]rom what I recall” and then that she did not know and “[t]here was a lot happening”. Ms Tekely appeared to agree that, when talking to police, she did her best to tell the truth but then said that she was just concerned about her daughter. When it was put to her by the Crown that she was giving evidence to assist the accused because she did not want to get him into more trouble, Ms Tekely’s first response was “[t]hat’s not necessarily true, no”, but then that “No, it’s not true. That would just be an assumption from your end” (8/05/23; T 124-125).

100. The applicant’s counsel put to Ms Tekely in cross-examination the suggestions that Jack had a pistol that day; that there was a confrontation between him and his father; that he threatened his father; that they wrestled and that the gun went off a number of times. Ms Tekely denied that Jack had a pistol (“[n]ot to my knowledge”); said that there were definitely gunshots; and, as to the suggestion of Jack threatening his father and the gun going off in a wrestle between them, said that:

This would be the first of my knowledge of that situation, but like I said before, I was upstairs. I didn’t see anything. I only heard a few gunshots go off.

101. Ms Tekely denied that she came up with a version when she spoke to the police that day that was designed to put the applicant in a bad light; and added that “We honestly had no time to even talk to each other”.

102. Ms Tekely said that she did not know about the money situation between Jack and the applicant. Ms Tekely agreed that at around the time of the incident Jack was taking illicit drugs fairly regularly (like cocaine and MDMA) but said that she was not aware that Jack was affected by those drugs on 1 March 2021 (see 8/05/23; T 131-132).

103. Asked whether, when she told the police as recorded on the body worn video that the applicant came upstairs three or four times, that was an assumption, Ms Tekely agreed, but then said she did not even remember; and that she remembered an encounter upstairs once with some noise but did not even remember if anyone came upstairs again, saying that she was not too sure (8/05/23; T 133).

Other witnesses’ evidence

104. The applicant’s friend, Mr Stichter, gave evidence as to him driving the applicant to Jack’s house. Relevantly, Mr Stichter said that the applicant asked him to drive him to Jack’s house, so he could drop off some money; he did not notice the applicant to have anything with him; he did not see or hear anything unusual and said nothing unusual was discussed on the journey back to the applicant’s house; the applicant was drinking alcohol at the time Mr Stichter left (8/05/23; T 136-144).

105. Mr Maringehosi, from whose home the 000 call was made, gave evidence that: on the day of the incident Jack (who he recognised as a neighbour but did not know) ran into his house through the back door wearing pants and no shoes, and probably no shirt; Jack looked terrified and said to him “[t]here’s a man in my house. He has got a gun” and may have said the man had fired a shot; and that Jack alsosaid “[w]hat kind of man - who does that to his grandchildren?” (8/05/23; T 156.41-T 158).

106. I do not propose to recount much of the evidence of DSC Bayazidi or DSC Junee, which has been referred to in the course of the above.

107. SC Sewell and LSC Marks each gave evidence that Jack had said to them that his father had shot the house, and that he had jumped the fence and ran away (9/05/23; T 168.48- 50; T 235.45-50-238.2). Police observed damage to both the locking mechanism and frame of the front door (10/05/23; T 350.1-19).

Forensic evidence

108. Various forensic evidence witnesses were called: Nadine Sarah Krayem (forensic chemist), Senior Constable Steven William Bird (crime scene officer), Sergeant Alan Dusting (forensic ballistics examiner).

109. Ms Krayem gave evidence that gunshot primer residue samples taken from the front passenger seat of Mr Stichter’s truck approximately 24 hours after the alleged incident strongly supported the proposition of a firearm association. Although eight particles characteristic of gunshot primer residue were also located on a shirt and jeans seized from the applicant, as no control sample was taken, Ms Krayem was unable to place weight on that evidence (9/05/23; T 256-264).

110. Senior Constable Bird was shown Ex N and Ex O (photographs and diagrams of the scene, respectively) and explained that they depicted the impact damage to the house, bullet projectiles and casings (being parts of .32 calibre Winchester Cartridges) and their locations (10/05/23; T 274-291). Five bullets and five fired cartridge cases were found in the house (10/05/23; T 290.48-50; T 291.1-9). He gave evidence that there were no obvious rips or tears to the clothing the police seized from the applicant on 1 March 2021 (10/05/23; T 293).

108. Sergeant Dusting gave evidence that the five fired cartridge cases located at the scene were .32 calibre Winchester Cartridges; they had been fired from the same firearm; and the ammunition found was mainly used in self-loading pistols, though it could be used in other firearms (10/05/23; T 295.28-40; T 298.16-27).

109. DSC Bayazidi gave evidence that DNA testing of the cartridges was unsuccessful (10/05/23; T 360).

110. As to the black firearm holster found in a garage on the accused’s property (10/05/23; T 304.5-9), the expert evidence was that it was a cheaply made copy of an “Uncle Mike’s pancake holster”, left-handed, and designed to carry a pistol in a concealed fashion (10/05/23; T 314.1-6; T  315.33- 42); and that it did not function correctly because of its cheap material and construction (10/05/23; T 320.32-49; T 321-324).

Recorded telephone calls (Exhibit W; transcript Exhibit X)

114. A number of intercepted telephone calls between the applicant and other people after 1 March 2021 were played to the jury (Ex W). In those calls, the following statements by the applicant were relied upon by the Crown:

1.   (to Pattie Godwin): Listen, this is all their fault. Okay? It started two weeks before the day... you know what? He even said to me on the phone, “I’ll get you first”... And this is where it’s all ended up.

2.   (to Pattie Godwin): Don’t let, um, ATM, right, pull the wool over your eyes and say that this problem didn’t eventuate from him. It eventuated when he first done a break and enter on Wayne’s home ... And then on the Monday, you know what he said to me? “I’ll get you first” ... That’s, that’s, I just went, “Yeah, no worries, mate.” Thinks he’s, you should’ve seen him run like a girl.

3.   (to Peter Wells): Oh I’ve gone and done it this time bro ... Fucking ATM machine. Fucking automatic telling machine. … [in response to the suggestion that he “probably had a few too many turps’ as well”] Yeah, no I did too. But it, it went on for two weeks this argument. He was playing this gangster with me, calling me out and shit like that. And then I just thought. The last phone call was, he told me, he goes, “I’ll fucking get you before you get me”. And I went, “Rightyo cunt”. Fucken, and what happened, happened, I suppose ... But I’m innocent.

4.   (to Clayton Stichter, who says, “they’re saying no-one said nothing”): No, no. Bullshit. They’ve read it all to me... That’s alright. But keep it all, just keep all that under your hat for now... Yeah, yeah. There’s nothing I can do bro. I’m fucked.

5.   (to Clayton Stichter): I think they’ve got, um, a pretty, um, I think they’ve got a pretty weak case... I’m not, I’m not disputing that I went there ... and I’m not disputing I kicked on the door either... door never came open and, and he said, “Come around the side”. So I went round the side. Sliding door was open. He told me to come in... What did you say? You just gave me a lift over there?

6.   (to Wayne Brady): Yeah, yeah they’re, they’re, they haven’t signed nothing which is a, it makes their case weak. They’re lying. Which I, I, knew they were anyway... Oh, they’re saying discharge firearm, possession of firearm. All the good shit that’s not true... They found, um, um, it’s a bit hard. I can tell ya. But I, I, just can’t tell you now... (Brady: “Residue or something?”) I think, yeah, no, no, not, not that ... Do you know something? They’re saying, I had the gun but this other cunt had the gun. Now when I was grabbing it and off him. We were wrestling and it’s gone off a few times ... Right. And it, it wasn’t me... (Brady: “‘Cause I was thinking too, like, because you use the ramset gun here too, you know what I mean, at work”) Yeah, yep. Yeah true.

7.   (to Dean Godwin): I’ll never make up with him, Dean, that’s no shit. Never. Like, he’s gone forever. You, you don’t do this to me... Wanted to play the big gangster boy and shit the gear and ran... (laughs).

Applicant’s submissions

115. In written submissions, the applicant identified the key issue in the trial as being whether the prosecution could establish beyond reasonable doubt that it was the applicant who discharged the firearm, though in oral submissions (AT 41-42) the applicant also appeared to raise an issue as to whether the element of break and enter could be established beyond reasonable doubt (referring to notes made by DSC Bayazidi in which he had recorded some of his conversation with Jack at the scene, which included “dad banged in through side door” (see 10/05/23; T 345.14-39)). The suggestion by the defence was that, at least on one version, Jack had invited the applicant to come around to the side door. The defence case was that it was Jack who produced the firearm and that the firearm discharged in the course of a struggle between the applicant and his son.

116. The applicant submits that the evidence of Jack and Ms Tekely was not sufficient to prove the offences beyond reasonable doubt (arguing that the applicant’s recorded calls were equivocal and did not support a finding of guilt; and that all other evidence was circumstantial). The applicant argues that neither Jack nor Ms Tekely’s evidence as to what actually occurred on 1 March 2021 could be accepted, noting that their sworn evidence was not consistent with the Crown case and that neither adopted the earlier representations made to the police. Further, the applicant says that the earlier representations made by Jack and Ms Tekely were inconsistent with each other (though in oral submissions, the applicant’s counsel withdrew the submission that there were “striking” inconsistencies between their accounts – AT 46.43-50).

117. As to the circumstantial evidence relied on by the Crown, the applicant says that the failure of police to search Jack and Ms Tekely’s bags when they left the residence left open the possibility that either of them may have had possession of the firearm and removed it from the premises; and that the evidence of gunshot residue on samples taken from the applicant’s clothes and Mr Stichter’s truck was of little relevance (the applicant submitting that it was consistent with both the Crown and defence cases and that the fact that Jack’s clothing was not examined to test the possibility that he had been in the vicinity of a discharging firearm meant that the jury was not assisted in assessing whether the defence case was a reasonable possibility).

118. As to the CCTV evidence, the applicant submitted in writing that this could only assist the Crown case if it could demonstrate beyond reasonable doubt that the sounds which can be heard (on Ex B and Ex 4) are gunshots (because only then would the possibility that Jack was in the house when the firearm was discharged be excluded). The submission was not maintained “to that extent (T 46.47). The applicant contends that on a review of Ex B, the sounds that can be heard at the time marked 3:50:33pm and 3:50:51pm (on the Crown case being gunshots), compared with those which can be heard at 4:19:14pm, 4:19:21pm, 4:19:25pm, 4:19:29pm, 4:19:38pm, and 4:20:02pm, lead to the conclusion that there is a reasonable possibility that the sounds are not gunshots but a slamming gate. The applicant says that the sound at 4:20:02pm is of particular importance as it occurs after police can be seen on the footage at 4:19:44pm. In oral submissions, emphasis was placed on the timeline of the events on 1 March 2021 by reference to the timestamps on the footage in Ex K (as corrected by 15 minutes).

119. The applicant argues that the poor support for the Crown case from the two key witnesses and the possibilities left open by the other evidence available should lead to the conclusion that the jury ought to have entertained a reasonable doubt as to the applicant’s guilt on each count.

Crown submissions

120. The Crown submits that the spontaneous and contemporaneous representations made by Jack and Ms Tekely on the day of the alleged incident were truthful and should be accepted; and that those representations, in combination with other supporting evidence, provided a sound and cogent basis for the jury to be satisfied beyond a reasonable doubt of each of the elements of each of the charges.

121. The Crown argues that, although neither Jack nor Ms Tekely directly implicated the applicant during the evidence they gave in court, the immediate representations that each made contemporaneously, as well as shortly after the incident, are persuasive. The Crown says that the representations are internally consistent, and in each case their initial account is also largely consistent with that of the other. Further, the Crown argues that those contemporaneous accounts are consistent with the objective evidence, such as the damage observed by police on Ms Tekely’s car and also the damage consistent with gun shots within the premises. The Crown submits that the contemporaneous representations were made at a point in time at which it can be expected that those respective accounts were both reliable and accurate; and says that the evidence of the representations establishes clearly the elements of each count on the indictment.

122. The Crown submits that it was well open to the jury to reject the evidence of Jack at the trial that he was affected by drugs at the time (therefore causing him to have no recollection of events), particularly in circumstances where police did not observe any such intoxication, and where the jury had the opportunity to see and hear the manner in which Jack presented at the relevant time by way of the recorded evidence from 1 March 2021. The Crown argues that, in contrast to their evidence in court, the contemporaneous accounts of Jack and Ms Tekely at the scene were spontaneous, consistent with each of them attempting to protect their safety, occurred before they had time to consider the consequences and implications for the applicant, and capable of acceptance. Accordingly, the Crown submits that the evidence that they gave in court (including that they did not adopt their initial accounts at that time) does not deprive their initial representations of cogency and credibility to the extent that it required the jury to experience a doubt about the commission of the offences.

123. The Crown points to a number of aspects of Jack’s and Ms Tekely’s initial representations that it says are also supported by other evidence and provided a further basis for the initial representations to be accepted. Those include that Ms Tekely said in the body worn footage that the applicant was “still drinking from yesterday” and described what he was wearing at the time. The Crown says that the intoxication of the applicant is supported by the observations made by numerous police officers at the time of the applicant’s arrest (and, I would add, Mr Stichter’s evidence that when he arrived at the applicant’s house that day after work the applicant had a “couple of beers and a couple of drinks [in front of him]”; it might also explain why the applicant asked Mr Stichter to drive him to Jack’s place although this is mere conjecture). The Crown notes that the T-shirt that Ms Tekely described the applicant to be wearing at the time of the incident is also consistent with the T-shirt that the applicant can be seen to be wearing in Ex K (the CCTV footage of the arrival of the applicant), other than the brand name that Ms Tekely described. The Crown submits that this evidence supports that Ms Tekely saw the applicant at the time of the incident, as she initially asserted.

124. The Crown disputes the applicant’s contention that the CCTV could only assist the Crown case if it could demonstrate beyond reasonable doubt that the sounds which can be heard are gunshots. The Crown argues that Ex B supports the contemporaneous accounts of Jack and Ms Tekely in the following ways.

125. First, that the depiction of Jack going towards his neighbour’s home is consistent with the account he initially provided to police of his actions at the time of the alleged incident.

126. Second, that Jack’s decision to attend his neighbour’s home and seek assistance by having police summoned (as supported by the CCTV footage and 000 call) is consistent with the incident having occurred as Jack initially described to police.

127. Third, (noting that it was not in dispute at the trial that gunshots were fired in Jack’s house) that the sounds heard at timestamps 3:50:33pm and 3:50:51pm (as Jack is first approaching Mr Maringehosi’s home, and very soon afterwards), are consistent with the sound of gunshots. The Crown submits that the timing of those sounds on the footage is consistent with the Crown case and lends support to the representations made by Jack and Ms Tekely at the scene, pointing out that Ms Tekely’s contemporaneous account does not suggest that Jack was inside their home at the time shots were fired. The Crown argues that, given multiple cartridge cases and bullet holes were located inside the premises, the remaining shots must have been fired after Jack left his home (which the Crown says is consistent with Ms Tekely’s evidence that the applicant was looking for Jack), and the shots therefore were fired at a time proximate to his attendance at his neighbour’s premises. The Crown places significance on the fact that Jack, who was present at the scene (and an occupant of the premises), gave evidence that he heard gunshots in the recording. (Pausing here, the force of this submission is undermined by the timeline of events as discerned from the Ex K footage, as I explain in due course.) Further, the Crown argues that sounds consistent with yelling can also be heard proximate to the second of these “shots”, consistent with Ms Tekely’s account to DSC Bayazidi that she could hear yelling and gunshots after the applicant went downstairs. The Crown argues that this supports the acceptance of the contemporaneous accounts of Jack and Ms Tekely, and that the sounds heard on the footage timestamped as 3:30:33pm and 3:50:51pm were gunshots.

128. In any event, the Crown submits that, even if the applicant’s assertion that the sounds heard at 3:30:33pm and 3:50:51pm are similar to sounds heard after the arrival of police is accepted, the assertion that the sounds at 3:30:33pm and 3:30:51pm are not gunshots but a slamming gate should be rejected.

129. That said, the Crown argues that the sounds on the CCTV footage (which the Crown submitted were gunshots) formed only one piece of circumstantial evidence in the Crown case and this was not an indispensable fact so as to require proof beyond reasonable doubt (Shepherd v R (1990) 170 CLR 573; [1990] HCA 56).

130. The Crown points to other aspects of the evidence that it says also support the credibility and reliability of the accounts given by Jack and Ms Tekely to police on 1 March 2021, those being: the rejection by Jack of the proposition that he pulled out a pistol (and the fact that he did not remember a wrestle with his father in which a gun held by Jack was discharged); the location of the gun holster in the applicant’s garage (which the Crown says is supportive of the applicant being in possession of a pistol at the relevant time); and the recorded telephone conversations (Ex W).

131. As to the recorded telephone conversations (see the transcript at Ex X), the Crown attaches significance to these as supporting that the applicant had a motive to commit the offences and providing a background of discontent between the applicant and Jack (including being consistent with the initial assertion by Jack to police that he owed the applicant $3,000). The Crown emphasises that the applicant made the statements to his friend, Peter Wells, extracted at [114](3) and in the final recorded conversation to Dean Godwin extracted at [114](7) (that “he’s gone forever … wanted to play the big gangster boy and shit the gear and ran”). The Crown also points to the applicant’s statement to Mr Stichter (see [114](5)) that “I’m not disputing that I kicked on the door” (though the applicant there went on to say that the door “never came open” and that “he” (in context, Jack) told him to come around the side and the side door was open). The Crown says that the statement by the applicant that he kicked in the door is generally inconsistent with the suggestion to Mr Stichter by the applicant on the day that he was attending the premises to drop off money.

132. As to the applicant’s contention that the failure of police to search Jack and Ms Tekely’s bags when they left the residence left open the possibility that either of them may have had possession of the firearm, the Crown submits that this is not a matter that, either alone or in combination, required the jury to have a doubt about the commission of the offences, given the cogency of the other evidence. The Crown points out that the suggestion that Jack or Ms Tekely might have removed the firearm when they left the premises was not put to either of them during the trial.

133. As to the applicant’s submission that the gunshot residue evidence (being consistent with either case) does not support the Crown’s case, the Crown submits that this overlooks that a number of aspects of the evidence were inconsistent with the applicant’s case that the gun was discharged in a struggle with Jack. In particular, the Crown says that such a struggle is implausible having regard to the location of the gunshots both upstairs and downstairs in the home (Exs O and N) and difficult to reconcile with the absence of damage to the applicant’s clothing when he was arrested.

134. Finally, the Crown emphasises the advantage of the jury in this case in assessing the credibility or plausibility of the initial accounts given by Jack and Ms Tekely having regard to their observation of those witnesses giving their contradictory evidence in the trial.

Determination

135. It was common ground that the applicable principles on an unreasonable verdict ground of appeal are those set out in M v The Queen (1994) 181 CLR 487 at 492-493 per Mason CJ, Deane, Dawson and Toohey JJ; [1994] HCA 63 (see also SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [13]-[14] per French CJ, Gummow and Kiefel JJ; Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113] per Hayne J; and, more recently, Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [45]; Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 at [7]).

136. What is required is an independent assessment of the evidence by this Court to determine whether it was open to the jury to be satisfied beyond reasonable doubt that (or, to put it another way, whether the jury ought to have entertained a doubt as to whether) the accused was guilty, bearing in mind that the jury has the primary responsibility of determining guilt or innocence and has had the benefit of seeing and hearing the witnesses.

137. It is also relevant at the outset to note that the parties proceeded on the basis that this Court should view certain of the CCTV footage tendered in evidence (relevantly, Exs B, K and 4, which were played in Court during the hearing of the appeal) and the police body worn camera footage (Ex E). Reference was also made to the audio recording of the 000 call made to the police (Ex C) and the intercepted telephone conversations of the applicant (Ex W) (the transcript of those last exhibits being, respectively, Exs D and X). As noted earlier, the applicant asked for the CCTV footage to be played to the Court and invited the Court to view and listen to other of the exhibits.

138. I have carefully reviewed that evidence cognisant of the observations of the High Court in The King v ZT [2025] HCA 9; (2025) 99 ALJR 676, particularly at [18]. I have not used that evidence to assess the credibility of the witnesses (Jack and Ms Tekely) based on the manner in which the statements captured in those exhibits were made. In particular, I assessed the CCTV footage to assist in considering the submissions made by the applicant as to the timeline of events and to ascertain the nature and scope of the advantage possessed by the jury in seeing and hearing the evidence of the witnesses in Court.

135. It is clear from the timeline of events set out earlier that there is a real possibility that the sounds heard on Ex B (or some of them) were not in fact gunshots. The time elapsing between the two “bangs” on Ex B does not accord with the timing of the “bangs” on Ex K. The timeline on Ex K makes clear that the applicant had left Jack’s house by around 4.52pm and the 000 call, made soon (if not immediately) after Jack’s arrival at Mr Maringehosi’s house, was recorded as occurring at 4.57pm. Therefore, no inference can safely be drawn from the “bangs” heard on Ex B that Jack was not in the house at the time of the gunshots. However, that of itself does not compel a conclusion that there is a reasonable doubt as to the guilt of the applicant. It was not disputed at the trial that gunshots were fired in Jack’s house (though Ms Tekely suggested in her evidence that damage to the upstairs “was already there”). That is because there is other cogent evidence that Jack was not in the house wrestling with his father when the gun (on the defence case held by him) was discharged a number of times; namely, the CCTV footage to which the applicant pointed that depicts Jack in possession of a sledgehammer like implement when he went to the neighbour’s house. I accept the Crown’s submission that whether the “bangs” in Ex B were gunshots was not an indispensable fact so as to require proof beyond reasonable doubt.

136. The objective evidence is that Jack went to Mr Maringehosi’s house (after first knocking at another neighbour’s house) and that Jack gave an account on the 000 call of the incident consistent with the Crown case. Mr Maringehosi’s evidence (which the jury was able to observe him give at the trial) was that Jack appeared terrified (8/05/23; T 157.21). The CCTV footage which the applicant himself argues shows Jack dropping an item such as a sledgehammer on his way to Mr Maringehosi’s house is consistent with Jack’s contemporaneous account that he had gone out of his house and taken a sledgehammer from the shed to protect himself after his father had arrived at the house; and consistent with a decision by Jack not to go back into his house when he heard a gunshot but instead to run to the neighbour’s house.

137. The contemporaneous accounts given at the scene by both Jack and Ms Tekely, though inconsistent in some respects (such as where each of them was when the applicant arrived) were nevertheless consistent in their account that there was a banging on the front door of the house (consistent with the applicant’s statement in his intercepted telephone conversation with Mr Stichter that he was kicking the door and with evidence of some damage to the front door) and that the applicant was yelling and trying to find Jack (see the evidence of DSC Junee at 9/05/23; T 187; and the evidence of DSC Bayazidi at 10/05/23; T 338.19-20; T 339-340, T 346).

138. Ms Tekely’s account to police at the scene that the applicant came upstairs and threatened her with a gun, which he then discharged, is consistent with the damage to the upstairs flooring; and it was well open to the jury to conclude that Ms Tekely could not so accurately (albeit referring to a different brand name) have described the applicant’s clothing had she not seen him on that occasion. Ms Tekely’s ready description of the gun also belies her later evidence that she did not see the applicant with a gun.

139. The fact that Jack ran to his neighbour’s house and asked him to call the police and (from the transcript of the 000 call) believed that the applicant was still inside the house gives weight to the contemporaneous accounts made by him to the police.

140. It was well open to the jury to reject the suggestion (implicit in the cross-examination of Jack) that he and Ms Tekely had concocted a version of events falsely to accuse the applicant of discharging a firearm in the house. Among other things, that would have required a very hasty concoction of such a plan at the time. Moreover, it seems implausible that Jack (who on his later account was “off his face” on drugs) would have been able to present a sufficiently compelling picture of a distressed victim to Mr Maringehosi to obtain his assistance in making the 000 call and for him not then to appear intoxicated or under the influence of drugs when being questioned by the police who attended the scene. The version for which the applicant contended through cross-examination (effectively of there being ongoing struggles between the two men throughout the house with the firearm discharging upstairs and then a number of times downstairs) does not fit with Jack then running with a hammer or sledgehammer to his neighbour’s house. Nor is it plausible that Ms Tekely would not have been aware of such a struggle had it occurred.

141. As to the suggestion that Jack invited his father to enter the house through the side door, the only support for this in the evidence is the short note by DSC Bayazidi that “dad banged in through side door” and the later (intercepted) telephone conversation between the applicant and Mr Stichter (that it would have been well open to the jury to see as self-serving). It does not fit easily with the evidence that Jack ran out the back door to the shed to pick up a hammer or sledgehammer (consistent with the Ex B footage that he dropped one); nor does it account for the banging on and damage to the front door. It was open to the jury to reject Ms Tekely’s assertion that the sound was more like knocking than banging.

142. While I accept that the intercepted telephone conversations were largely equivocal, there is support in those conversations for the Crown case that there had been conflict between the applicant and Jack leading up to the incident. (In passing, I note that in the conversation with Wayne Brady ([114](6)) when the applicant suggested that they (in context, the police) had found something, and Mr Brady asked if it was gunshot residue, it might well be thought that Mr Brady was assisting the applicant to come up with an innocent explanation for the gunshot residue – namely, use of a “ramset gun” at work. However, that is conjecture and I place no weight on this.)

143. As to the holster, I would place no weight on the finding of a holster of that kind at the applicant’s premises. As to the gunshot residue, the evidence supports the applicant’s contention that this would be consistent with both the Crown case and the version put forward in the defence case. There is, however, nothing to point to a reasonable possibility that it was Jack who had the gun from which shots were fired on the day (and both Jack and Ms Tekely, notwithstanding their professed inability to remember most of the events of that day, rejected such a proposition – as noted earlier).

144. Most importantly, the jury had the advantage of seeing and hearing the witnesses give their evidence (not just Jack and Ms Tekely but also Mr Maringehosi) and forming a view as to whether the evidence of Jack and Ms Tekely at the trial (starkly inconsistent as it was with their contemporaneous accounts and with the evidence that they accepted they had given during the Basha enquiry) was truthful or was (though each denied this) simply an attempt to assist the applicant (whether due to the familial relationship or otherwise) or, in the case of Jack, to protect himself. Due deference should be given to the advantage of the jury in this regard.

145. Having taken into account all of the evidence, I am not left with a reasonable doubt as to the applicant’s guilt of the offences of which he was convicted. It was well open to the jury, which had the benefit of seeing and hearing the witnesses give evidence, not to experience any such doubt. The sole ground of appeal therefore fails.

146. For completeness I note, as to the application by the applicant for an extension of time for the filing of the Notice of Appeal (which was not opposed by the Crown in oral or written submissions), the principles applicable to the exercise of such a discretion have recently been restated in Ozgen v R (Cth) [2025] NSWCCA 65 at [10] per Coleman J (Payne JA and Fagan J agreeing). Applying those principles, when one has regard with hindsight to the outcome of the appeal (were an extension of time and leave to appeal to be granted), it would readily be concluded that the prospects of success of the appeal were slight. However, there was an explanation proffered for the delay which, though not wholly satisfactory, raises matters beyond the control of the applicant. In all the circumstances, given that this is a conviction appeal and it was contended that the verdict was unreasonable and unsupported by the evidence, I would grant the extension of time sought and would also grant leave to appeal. However, for the reasons set out above I would dismiss the appeal.

147. Finally, I refer to the post-script to the joint judgment of Hamill and Dhanji JJ. Like their Honours, the information of which Dhanji J became aware while sitting in the bail list (to which he drew my attention) played no part in my reasoning in relation to the determination of this appeal. My reasons for judgment had been prepared before I was made aware of that information and they have only changed since then by the insertion of this paragraph.

Orders

152. Accordingly, the orders I propose are as follows:

1. Extend time for the filing of the Notice of Appeal to 24 March 2025 and direct that this be treated as an application for leave to appeal.

2. Grant leave to appeal.

3. Dismiss the appeal.

153. HAMILL and DHANJI JJ: We have read the judgment of Ward P in draft and gratefully adopt her Honour’s summary of the evidence, agreed facts, and submissions. We agree with the orders that her Honour proposes essentially for the reasons that her Honour provides.

154. Like Ward P we have viewed and listened to the various exhibits as requested by the parties. As her Honour has explained, much of that evidence was essential to understanding the sequence of events and did not involve any “recorded statements” (see The King v ZT [2025] HCA 9; (2025) 99 ALJR 676 at [18]) and hence did not involve any assessment of the credibility of a witness.

155. Insofar as we were invited to watch or listen to evidence of recorded statements, doing so has illuminated the nature of the advantage held by the jury. In general, it can be said that the recordings are of good quality. They capture the manner of speech of the persons recorded. The video recordings capture some of the facial expressions. Nonetheless, insofar as the jury were able to make an assessment of the reliability of a recorded account, we proceed on the basis that the assessment of demeanour in the context of a two dimensional recording is necessarily compromised. That is additionally so where the image is inexpertly recorded. (We do not mean this pejoratively, but rather intend only to acknowledge that recordings such as those made by way of body worn video are essentially made automatically and not with a focus on capturing the expression of the person being recorded.)

156. In evaluating the ground of appeal we have approached the evidence in the manner discussed in High Court authorities such as Morris v The Queen (1987) 163 CLR 454 at 472-474; [1987] HCA 50, SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 especially at 164-166, Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 and The King v ZT, for example at [21], [56] and [89]. When using the word “open” in what follows, it is used in the sense explained in M v The Queen (1994) 181 CLR 487 at 493-495; [1994] HCA 63.

157. This was a case, not altogether uncommon in criminal trials, where the critical witnesses not only failed to give evidence in accordance with things they had said before, but appeared to be actively uncooperative with the barristers who were examining or cross-examining them. A review of the transcript alone satisfies us that it was open to the jury to reject out of hand most of the evidence that Jack Godwin (who we refer to as “Jack”, given he shares the same surname as the applicant and not intending any disrespect) and Brittany Tekely gave at the trial. In our independent assessment, neither of those witnesses were making any genuine attempt to provide truthful evidence. The trial Judge, inevitably and correctly, granted leave for the Prosecutor to cross-examine each of them and counsel for the applicant at trial (who was not counsel who appeared on the appeal) also had the opportunity to attempt to extract cogent and honest evidence from each of them.

158. The conclusion above must be acknowledged to create a serious difficulty for the prosecution case. The only eye-witnesses to the events were Jack and Ms Tekely. They were prepared to lie, on oath, before a judge and jury in the formal setting of a court room. They are people who are, then, clearly capable of dishonesty. It follows that they would think little of lying to the police if it suited them. Further, it appears that they had the opportunity to, and almost certainly did, speak with each other prior to the police arrival. These concerns are in addition to the concerns that ordinarily arise in the context of hearsay evidence. In this regard we note that had an application under s 165(1)(a) of the Evidence Act 1995 (NSW) been made at the trial, a direction concerning the potential for such evidence to be unreliable and the reasons it may be unreliable, would have been appropriate. We have taken into account those additional concerns.

159. For the reasons we have set out, care clearly needs to be taken in accepting the versions given by Jack and Ms Tekely to the police. Further, with regard to the evidence of statements made to police by Jack and Ms Tekely that were not electronically recorded, we have regard to the inevitable inaccuracies that arise as a result of the difficulty of recalling precisely what a person said, even a short time later. Despite this need for caution, when the versions given to the police by Jack and Ms Tekely are viewed in the context of the totality of the evidence, there is, for the reasons which follow, no doubt as to the guilt of the applicant.

160. The case was, with the exception of one issue, run on an “all or nothing” basis. That is, given the agreed facts and the forensic and ballistic evidence, there was one central issue in the trial: whether it was the applicant or Jack who produced the gun. If it was proved the applicant produced the gun, it was accepted that the elements of each of the offences were made out. The one exception to this was the element of breaking in relation to count 1. We will return to this issue.

161. Given the arguments made on behalf of the applicant on the appeal, we agree with Ward P that little weight can be given to the banging sounds that can be heard in some of the CCTV footage. Similarly, the evidence of gunshot residue was, as counsel for the applicant submitted, neutral given the substance of the applicant’s case at trial. We have also disregarded the evidence of the finding of the holster in the applicant’s garage as being of virtually no probative value given there was no evidence linking it to the weapon allegedly used by the applicant and that it could have been a child’s plaything. We have also approached the issue of the timing of the CCTV and triple-0 calls with caution and generally accepted the applicant’s submissions on the issue. We accept the Prosecutor at trial proceeded, until very late in the trial, on an erroneous assumption as to the timing of the triple-0 call (which may correctly have been at 4.57pm and not 4.47pm).

162. However, objectively evaluated – even at this distance from the atmosphere at the trial – the evidence that the applicant entered the house armed with the weapon and that it was him, not Jack, who produced the gun was very strong. That evidence, in dot-point form included:

• The statements made at the scene by Jack and Ms Tekely concerning the dispute over money and the incident where the applicant damaged the car.

• The damage to the car itself.

• In the context of the grievance referred to above, it was the applicant that went to the home of Jack and Ms Tekely, and not the other way around. Evidence of his motive in doing so was available in the intercepted recordings.

• Jack’s actions in running from the house to Mr Maringehosi’s place. It is far more likely that the person confronted with a gun would flee than the other way around. Accepting this, an hypothesis consistent with innocence would require acceptance of a reasonable possibility the applicant was able to disarm Jack (with the possibility that shots were fired while doing so).

• The crime scene evidence, including the fact that there was bullet damage on both levels of the house, makes the “disarming” hypothesis more unlikely still.

• The CCTV evidence that Jack dropped an item, consistent with it being a sledgehammer, as he approached Mr Maringehosi’s house, conforms with Jack’s version at the scene that he armed himself with such an item. Had he been in possession of a gun it is unlikely he would have seen the need to arm himself with a hammer or to have dropped it at the location shown in the CCTV footage.

• Jack’s accounts to Mr Maringehosi, the latter’s description in the triple-0 call of what Jack told him, and the things Jack said in the triple-0 call.

• Jack’s contemporaneous accounts to Detective Senior Constable Mushen Bayazidi and Detective Senior Constable Simone Junee.

• Ms Tekely’s contemporaneous accounts to those two police officers.

• The responses of Jack and Ms Tekely when the applicant’s case was put to them in cross-examination by counsel appearing for the applicant at the trial.

163. Ward P has summarised the details of this evidence comprehensively. Subject to the remaining issue, the evidence did not require that the jury have a doubt as to the guilt of the applicant.

164. We return to the issue of proof of a “breaking” for the purposes of count 1. A submission that it was not open to the jury to find beyond reasonable doubt of the element of “breaking” was made on the day of the appeal. No such submission was made in writing and there was no separate ground of appeal addressed to the issue (despite the single, generally pleaded ground being inapposite to capture this contention).

165. An application for a directed verdict of not guilty was refused by the trial Judge. This was largely based on the evidence of Ms Tekely where she agreed that “the front door was closed that day”. There were, as the President’s judgment shows, wildly inconsistent accounts as to how the applicant entered the dwelling house, but it was not in dispute that he was inside.

166. The High Court considered the element of “breaking” in crimes in the nature of burglary, or in the parlance of our times “home invasions”, in BA v The King (2023) 275 CLR 128; [2023] HCA 14. The facts and issues in that case were unusual and need not be discussed. However, Kiefel CJ, Gageler and Jagot JJ explored the law on the subject of breaking at [22]-[24] (citations and footnotes are omitted):

22   According to Blackstone, burglary was only committed if there was both a breaking and an entry with the requisite felonious intent. The breaking had to be an actual breaking involving ‘a substantial and forcible irruption’ and not a mere legal breaking which may involve no more than a civil wrong such as a trespass. The requirement for an actual breaking, however, included obtaining entry by fraud, deception, or trickery because, as Blackstone put it, ‘the law will not suffer itself to be trifled with by such evasions’.

23   The special status of a dwelling‑house as deserving of the law's utmost protection is clear in other authorities. For example, Hale's The History of the Pleas of the Crown described burglary as a crime concerning ‘the habitation of a man’, because ‘every man by the law hath a special protection in reference to his house and dwelling’. The law protected a dwelling‑house from both a breaking by actual force upon the house and a breaking involving entry ‘into another's house against his will’. In this latter regard, in law, permission to enter property obtained by threat, fraud, trickery, or artifice was no permission at all.

24   To the same effect, Archbold said that, for burglary, ‘[o]ccupation rather than legal ownership must be proved’. East described occupation as the key to making a mansion house subject to this ‘high protection of the law’. East also explained that burglary did not depend on either ownership or possession, but occupation by inhabitation. An 1840 report of Her Majesty's Commissioners on criminal law recorded that burglary ‘is the invasion by force or fraud of a man's habitation by night’ accompanied by felonious intent or commission of a felony. They said that the crime was distinct from a ‘bare but aggravated trespass’. They observed that the ‘fundamental principle of the law is, the protection of the dwelling‑house.’

167. In this case, the evidence of a forcible entry of the premises, or that at least, a closed door was opened by the applicant, was circumstantial but not without cogency. It included:

• The original accounts of the occupants of the banging on the door.

• Ms Tekely’s evidence, given under cross-examination by the Prosecutor, that the door was closed that day.

• Ms Tekely’s evidence at trial that the locking mechanism on the door was defective, suggesting the closed door could have come open under pressure.

• The damage to the front door. Photographs 4-5 of 53 in Ex N show a long vertical crack around the area of the strike plate.

• The applicant’s admission in a telephone intercept that “I’m not disputing I kicked on the door”, albeit that he went on to say the door “never came open” and that he was invited in.

• The undisputed fact that the applicant was inside the house.

168. The jury was entitled to reject beyond reasonable doubt the suggestion that the applicant was invited inside. That was implausible. The applicant’s version to this effect was in the course of the intercepted telephone calls and is to be considered in the context of discussions with friends in which he was clearly advancing potential means of defending the charges including postulating possible versions of events. For example, there was discussion about the gunshot residue evidence in which things that might create false positives were discussed. The applicant suggested “manure can give off a bad reading”. The applicant having been invited inside is inconsistent with the damage to the door and the contemporaneous accounts of Jack and Ms Tekely in which they were, understandably, anxiously taking steps to avoid the applicant.

169. While Jack is recorded in DSC Bayazidi’s notes as having said “Run to garage. Grabbed sledgehammer. Come around front, dad banged in through side door. Heard gunshots”, the jury was entitled to reject the proposition this evidence raised a reasonable possibility the applicant entered through an open side door. It is not clear that Jack had the opportunity to see the applicant at this point. It is not clear what the statement (if accurately recorded) was based on. Further, it is unlikely that, with the front door shut, the residence had another door which was open and accessible from the street. This is even less likely in the context of the attack on the front door of the house.

170. It was open to the jury to be satisfied beyond reasonable doubt that the applicant gained forcible entry to the dwelling house.

171. Returning to the principal issue, despite the formidable submissions advanced by counsel for the applicant in oral argument, and the questionable quality of some of the evidence considered piecemeal, the prosecution case was strong when taken as a whole. We are not left with any feeling that “there is a significant possibility that an innocent person has been convicted” or, to put it the other way, we do not “experience” a reasonable doubt about the applicant’s guilt: M v The Queen at 494.

Post Script

172. On 5 August 2025, while sitting in the bail list, Dhanji J became aware that Jack was a co-accused of one of the applicants for bail that day. The Court as presently constituted met to discuss the issue. The parties were notified of what had occurred and asked if any application was to be made as a result. Both parties notified the Court that there would be no application of any kind. While the information related to gun charges it appeared to be of at least questionable relevance to the issues in this case. The information has played no part in our reasoning.

**********

Decision last updated: 27 August 2025