Mena v Director of Public Prosecutions

[2024] ACTCA 34

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:

Mena v DPP

Citation: 

[2024] ACTCA 34

Hearing Date:

15-16 August 2023

Date of last submissions:

6 September 2023

Decision Date:

29 November 2024

Before:

McCallum CJ, Baker and Bromwich JJ

Decision:

The appeals be dismissed.

Catchwords:

APPEAL – CRIMINAL LAW – Appeal against conviction – whether jury’s verdict was unreasonable or unsupported by evidence – whether trial judge erred in making jury directions about identification evidence – whether trial judge failed to warn jury under s 165(1)(d) of the Evidence Act 2011 (ACT) about unreliable evidence of witness criminally concerned in events giving rise to proceedings – whether decision to admit audiovisual recordings into evidence wrong in law – no grounds of appeal made out – appeal dismissed

Legislation Cited:

Court Procedure Rules 2006 (ACT), rr 5331, 5531

Evidence Act 2011 (ACT), ss 116, 165, 192A(b)

Evidence (Miscellaneous Provisions) Act 1991 (ACT), Ch 4, Pts 4.1, 4.1, 4.3, Div 4.3.3, ss 4(1)(c), 37(a), 40, 42, 43, 51, 52

Royal Commission Criminal Justice Legislation Amendment Act 2018 (ACT)

Supreme Court Act 1933 (ACT), ss 37O(2), (2)(a)(i)

Victims of Crime Act 1994 (ACT), Pt 3A

Cases Cited:

Agius v R [2015] NSWCCA 200; 252 A Crim R 538

Alexander v The Queen [1981] HCA 17; 145 CLR 395

Blair v R [2022] NSWCCA 176

Chamberlain v The Queen [No 2] [1984] HCA 7; 153 CLR 521

Domican v The Queen [1992] HCA 13; 173 CLR 555

Doney v The Queen [1990] HCA 51; 171 CLR 207

DPP v Mena [2023] ACTSC 80DPP v Parlov [2023] ACTSC 147

DPP v Roberts (No 2) [2023] ACTSC 146

Fennell v The Queen [2019] HCA 37; 93 ALJR 1219

Garay v The Queen (No 3) [2023] ACTCA 2

Hofer v The Queen [2021] HCA 36; 274 CLR 351

Kanaan & Ors v Regina [2006] NSWCCA 109

Marshall v The King [2023] ACTCA 11

O’Grady v Northern Queensland Co Ltd [1990] HCA 16; 169 CLR 356

PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Service [1995] HCA 36; 184 CLR 301

R v Al-Hazari (No 6) [2017] ACTSC 63

R v Blundell [2019] SASCFC 84; 278 A Crim R 531

R v Dodd [2002] NSWCCA 418; 135 A Crim R 32

R v Fowler [2003] NSWCCA 321; 151 A Crim R 166

R v HC [2017] ACTSC 276; 325 FLR 59

R v Hillier [2007] HCA 13; 228 CLR 618

R v Lovett [2006] VSCA 5

R v Parlov; R v Mena; R v Roberts [2022] ACTSC 121; 298 A Crim R 229

Regina v Phuong Van Nguyen [2000] NSWCCA 285

R v PT [2013] ACTSC 20; 233 A Crim R 483

Warne v The King [2023] ACTCA 1; 374 FLR 311

Texts Cited:

Explanatory Statement, Royal Commission Criminal Justice Legislation Amendment Bill 2018 (ACT)

Explanatory Statement, Family Violence Bill 2016 (ACT)

Revised Explanatory Statement, Sexual and Violent Offences Legislation Amendment Bill 2008 (ACT)

Parties:

Sugimatatihuna Bernard Gabriel Mena (First Appellant)

Bradley Joe Roberts (Second Appellant)

Director of Public Prosecutions (Respondent)

Representation:

Counsel

Mr R El Choufani (First Appellant)

Ms M Keaney (Second Appellant)

Mr M Smith (Respondent)

Solicitors

Hugo Law Group (First Appellant)

Matthew Adam and Associates Solicitors (Second Appellant)

ACT Director of Public Prosecutions (Respondent)

File Numbers:

ACTCA 66 of 2022

ACTCA 70 of 2022

Decision Under Appeal:

Court/Tribunal:                ACT Supreme Court

Before:  Mossop J

Date of Decision:            2 December 2022

Case Title:  DPP v Parlov; DPP v Mena; DPP v Roberts

Court File Numbers:      SCC 205 of 2021

  SCC 206 of 2021

  SCC 208 of 2021

THE COURT:

Introduction

1․Soon after 5.30 am on 11 March 2021, two intruders entered premises in the suburb of Spence in Canberra, being the home of a person to be referred to in these reasons as Ms B (the Premises). Ms B and an associate of hers, a person to be referred to in these reasons as Mr A, were present. A short time later, a third intruder entered the Premises with a firearm and shot Mr A twice, in the stomach and face. Mr A was seriously injured but survived.

2․Arising out of those events, three persons were prosecuted on indictment, twice. The first jury was unable to reach a verdict. The evidence given by Ms B and Mr A at the first trial was video-recorded and played back to the jury at the second trial.

3․The second jury found the following in relation to the charges on the indictment against the three accused:

(a)Mr Bradley (Brad) Roberts and Ms Rebecca (Bec) Parlov, alleged to be the first two intruders to enter the home, guilty of aggravated burglary; and

(b)Mr Sugimatatihuna (Sugi or Suggy) Mena, alleged to be the third intruder to enter the home and to shoot Mr A, guilty of:

(i)attempted murder (alternatively charged with intentionally inflicting grievous bodily harm, a count not reached due to the guilty verdict);

(ii)aggravated burglary; and

(iii)committing an act endangering life.

4․The fact of Mr A being shot by an intruder to the Premises in the early hours of 11 March 2021, soon after 5.30 am, was not in dispute; nor could it have been. Nor was it in issue that two other intruders were present at the time of the shooting, or that the other offences had been committed by the intruders.

5․The unsuccessful defence advanced by each of the three accused was that they were not one of the intruders who entered the home. Mr Roberts’ and Ms Parlov’s primary case was that Mr A had falsely identified them; and in the alternative that Mr A had mistakenly identified them. Mr Mena’s approach was the opposite way around. His primary case was that Mr A had mistakenly identified him, characterised as an honest mistake, but he adopted the false identification defence advanced by Mr Roberts and Ms Parlov in the alternative.

6․The key issue at the trial was the reliability and credibility of Ms B and Mr A, directed to impugning their identification evidence. That is, whether the Crown on all of the evidence, had proven beyond reasonable doubt the identity of the three intruders. There is no doubt that the identification evidence of Ms B and Mr A was central. But their identification evidence was corroborated to an extent by aspects of the rest of the evidence.

7․The defence case of a deliberately false identification preferred by Mr Roberts and Ms Parlov, and also maintained by Mr Mena, was less than compelling, being based on assertions to that effect made in cross-examination of Mr A and Ms B, which were rejected by them; and upon peripheral aspects of their evidence which were said to have been inconsistent. The defence case of mistaken identity principally advanced by Mr Mena had a somewhat better foundation. However, the defence case of mistaken identity was weak for Mr Roberts and Ms Parlov, largely because of a greater degree of prior association between each of them and both Mr A and Ms B.

8․All three accused appealed their convictions, but not their sentences. Ms Parlov later abandoned her conviction appeal, leaving only Mr Mena and Mr Roberts as the remaining conviction appellants, both represented by counsel. They will be referred to in these reasons collectively as the appellants, and Ms Parlov separately as she is no longer an appellant.

9․Both Mr Mena and Mr Roberts abandoned three appeal grounds each. The following grounds of appeal were ultimately pressed; being three grounds in common and one ground advanced only by Mr Mena:

Ground 1:The jury’s verdicts should be set aside on the ground that they are unreasonable, or cannot be supported, having regard to the evidence.

Ground 2:The trial judge erred in his directions to the jury about evidence of identification (a ground of appeal only advanced by Mr Mena).

Ground 3:The trial judge erred in failing to warn the jury pursuant to s 165(1)(d) of the Evidence Act 2011 (ACT) that the evidence of [Ms B] may be unreliable as evidence given in a criminal proceeding by a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding.

Ground 4:That the verdicts should be set aside on the ground of a wrong decision of any question of law, namely the decision to permit two interviews of [Ms B] to be tendered as audiovisual recordings within the meaning of s 51 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) was wrong at law.

10․Both Mr Mena and Mr Roberts seek a verdict of acquittal, and, in the alternative, a retrial. While Mr Roberts had the same counsel on his appeal as for his trial, Mr Mena had different counsel. For that reason, when describing what took place at the trial in relation to Mr Mena, it is convenient to refer to his “trial counsel”.

11․For the reasons that follow, all of the grounds of appeal must fail and, accordingly, the appeals must be dismissed.

Overview of the facts

12․The trial judge when sentencing Mr Mena made factual findings consistent with the jury’s verdict and adopted them for the purposes of sentencing Mr Roberts and Ms Parlov: DPP v Mena [2023] ACTSC 80 at [3]-[11]; adopted both in DPP v Roberts (No 2) [2023] ACTSC 146 at [2] and in DPP v Parlov [2023] ACTSC 147 at [2]. DPP v Mena at [4]-[11] provides a short and convenient overall summary of the key events, in order to frame parts of the evidence that it is necessary to consider in more detail:

4.During the evening of 10 March 2021 Mr A was acting as the driver for Ms B who was supplying illicit drugs around Canberra. At 8pm Rebecca Parlov, Mr Mena and another man were in each other’s company in Bonner near Mr Mena’s house. At 8:43pm Ms Parlov enquired of Ms B if she had any methamphetamine. Arrangements were made for Bradley Roberts to collect that drug. Ultimately sometime after 3am Ms B and Mr A met Mr Roberts in a car park outside Woolworths at Bonner. Ms B supplied Mr Roberts with the methamphetamine. Mr A had a conversation with Mr Roberts and asked whether he was the person who had called him a paedophile. Mr A threatened to fight Mr Roberts. Although the evidence as to precisely what was said varied, Mr Roberts replied by saying something like “we’ll go get Sugi and that and we’ll come back and whack you”. Over the next two hours messages were exchanged between Ms Parlov and Ms B and Mr Roberts and Ms B. It was very clear that Ms Parlov and Mr Roberts wished to meet with Ms B and, it can be inferred, Mr A.

5.Mr A and Ms B ended up at Ms B’s house.

6.At about 5:34am on 11 March 2021, Ms Parlov made a Facebook call to Ms B. At the time Ms B was at her home in Spence with Mr A. The call was put on speaker. Ms Parlov wanted to know where Ms B and Mr A were. Ms B heard a car stop outside. Ms Parlov said that she needed to speak to Mr A. Ms Parlov told Mr A to walk outside the house. Ms Parlov said something to the effect that she did not want to do it inside Ms B’s house.

7.Ms Parlov then started banging on the front door of the house asking to be let in. She said words to the effect of “open the fucking door, we are coming in anyway.” Ms B then opened the door. Ms Parlov “shoved past” Ms B as she walked past her and went straight up to Mr A. She was wearing gloves. Mr Roberts also entered Ms B’s house and was standing off to the side next to a chest of drawers. Mr A grabbed a knife and stepped away from Ms Parlov. Ms Parlov said words to the effect of “are you going to pull a knife on a girl?”. Mr A observed that [Mr] Roberts was “backing up” Ms Parlov until he saw the knife. Mr A anticipated from Mr Roberts’ body language that Mr Roberts was going to rush up on to him until he saw the knife.

8.At about this time Mr Mena, who was wearing a mask, came through the front door. After he entered the house, he pulled out a sawn-off .22 calibre rifle from his waistband and shot Mr A. The bullet hit Mr A’s stomach, just above his belly button. Mr Mena then fumbled with the gun as he reloaded. He then raised the gun, pointed it at Mr A’s face and fired a second shot. The bullet hit Mr A’s jaw. Both shots were fired at close range. One of them was fired from no more than 3 m from Mr A. After the second shot was fired the three offenders fled the scene.

9.At about 6:18am Mr A admitted himself to Calvary Hospital in Bruce with gunshot wounds. He was dropped off at the emergency department carpark in an orange Toyota Corolla. Mr A was triaged as a category 1 patient (an immediate life-threatening condition). He was initially assessed as having a wound with swelling to his left cheek, a severely comminuted fracture [broken in at least two places] to the left jaw, a wound to his upper abdomen and two wounds to his left forearm. Medical staff noted a change in his voice and decided to place him in an induced coma. He was intubated and placed on a ventilator. He underwent a CT scan which reported multiple metallic foreign bodies lying both superficially and deep in his jaw. His left carotid artery was in close proximity to a major metallic foreign body. He also had a single metallic foreign body lodged in his abdominal wall.

10.Mr A was transferred by helicopter to the Canberra Hospital. He underwent multiple surgeries to explore, washout, debride and remove fragmented pieces of the bullets from his jaw, neck and abdomen. He also underwent plastic surgery on his left forearm, including the repair of one of the flexor muscles in the forearm which was injured. On 14 March Mr A underwent further surgery to repair the fractured bones in his jaw. This required the internal fixation of plates, screws, wires and rods which will remain in place permanently.

11.Mr A awoke from his induced coma on 18 March 2021. He was discharged from hospital on 19 March 2021.

13․There was evidence before the jury of a number of events of significance relevant to identification of the appellants (and Ms Parlov) prior to and on 10 and 11 March 2021. That evidence came from Constable Jack Bigmore, Ms B, Mr A and screenshots of Facebook text messages between Ms B and Ms Parlov, and between Ms B and Mr Roberts tendered without objection through Ms B. This includes, in particular:

(a)communications between Mr Roberts and Ms B and between Ms Parlov and Ms B prior to 10 and 11 March 2021;

(b)a police officer’s observation of Ms Parlov and Mr Mena being together at about 8.00 pm on 10 March 2021, the night before the shooting which occurred soon after 5.34 am on 11 March 2021;

(c)communications between Mr Roberts and Ms B and between Ms Parlov and Ms B on the evening of 10 March 2021 and in the early hours of 11 March 2021 to organise a meeting, which took place as per the next entry;

(d)two consecutive but separate conversations during a meeting at a car park near the Woolworths in Bonner, another suburb of Canberra, not far from Spence, soon after 3.06 am on 11 March 2021, probably at about 3.15 am, being just over two hours before the shooting; the first conversation between Mr Roberts and Ms B and, immediately after that, the second conversation between Mr Roberts and Mr A – this may conveniently be referred to as the 3.15 am Bonner meeting;

(e)communications in the early hours of 11 March 2021 between Mr Roberts and Ms B and between Ms Parlov and Ms B, soon after the 3.15 am Bonner meeting, and before the shooting soon after 5.30 am; and

(f)the arrival of the first two intruders at the Premises soon after 5.30 am on 11 March 2021 and, shortly afterwards, the third intruder arriving and shooting Mr A twice.

14․This Court is called upon to assess the entirety of the basis that the jury had for being satisfied beyond reasonable doubt that the intruders included the appellants. These reasons focus on key aspects of that evidence.

Overview of the prosecution case

15․Both Spence and Bonner are northern suburbs of Canberra near the border with New South Wales. They are approximately 15 minutes apart, travelling by car.

16․As the remarks on sentence reproduced above make clear, and upon the basis of evidence not challenged in this appeal, during the evening of 10 March 2021 and into the early hours of the next day, 11 March 2021, Mr A was driving Ms B to enable her to supply illegal drugs. Ms B was a friend of Ms Parlov. Ms Parlov was seen by a police officer with Mr Mena at about 8.00 pm on 10 March 2021.

17․The evidence of Ms Parlov and Mr Mena being together less than 10 hours before the shooting, relatively close to the place where the shooting occurred, is of some importance in the context of the rest of the evidence. This evidence goes to the key issue of the identity of the intruders. So too does the evidence of the 3.15 am Bonner meeting, at which separate conversations took place between Mr Roberts and Ms B, and then between Mr Roberts and Mr A, just over two hours before the shooting.

18․The conversation at the 3.15 am Bonner meeting between Mr Roberts and Mr A was about Mr Roberts’ apparently unfounded suspicions that Mr A was a paedophile. Mr Roberts threatened to have Mr Mena “whack” Mr A for that reason. That evidence was disputed by Mr Roberts at the trial but was not further challenged on appeal. That too was important evidence to have before the jury when it came to the identification of Mr Roberts as one of the intruders, but not the shooter.

19․In the period between mid-March and mid-April 2021, all three accused were charged. Before the end of 2021, Ms B had been sentenced to imprisonment for an evidence‑tampering offence arising out of her cleaning the crime scene. Both jury trials of the three accused took place in the second half of 2022.

20․Between about 8.00 pm on 10 March 2021 and about 3.00 am on 11 March 2021, Facebook messages were exchanged between Ms B and Ms Parlov, and between Ms B and Mr Roberts. These communications included Ms Parlov asking Ms B whether she had methamphetamine, Ms B confirming that she did, and arrangements being made for Mr Roberts to collect the drugs from Ms B.

21․At around 3.15 am on 11 March 2021, Mr A and Ms B attended the shops at Bonner and met with Mr Roberts. While at trial it was disputed that this meeting took place, that challenge was not maintained on appeal. Ms B remained in the car, while Mr A got out to keep a lookout. Mr Roberts spoke to Ms B through the car window, which Mr A could not hear. There was then a conversation between Mr A and Mr Roberts outside the car, unrelated to the drug transaction.

22․Between about 3.30 am and about 5.00 am on 11 March 2021, Facebook messages were exchanged between Ms B and Ms Parlov, and between Ms B and Mr Roberts. At trial, Mr Roberts contended that the exchanges were only between the accounts, not the individuals. The jury was entitled to draw the obvious and readily available inference that the account holders were using their accounts, especially as the messages were part of an exchange in the nature of a text conversation, not in isolation, and in the context that the next entry relates to Ms B receiving about six Facebook calls from Mr Roberts during the same period. No compelling argument was advanced for the jury to infer something different, noting that an intermediate fact of this kind does not have to be proved beyond reasonable doubt. It is therefore appropriate to proceed upon the basis that Mr Roberts was the person who was operating his Facebook account on that night, except at one point when it is apparent that Ms Parlov was using his account to contact Ms B because of a problem with her own phone.

23․Sometime after 5.00 am, Ms B and Mr A arrived back at the Premises. Soon after 5.30 am, two intruders entered the Premises. A short time after that, a third intruder entered the Premises and shot Mr A twice, reloading quickly between shots, as detailed at [8] of the sentencing remarks reproduced above. All three intruders then left the Premises. The prosecution alleged, and the jury by their verdicts accepted, that the first two intruders were Mr Roberts and Ms Parlov, and that the third intruder and shooter was Mr Mena.

24․After the three intruders left:

(a)Mr A attempted to contact various people;

(b)Mr A called and spoke to Mr Christopher Parlov, Ms Parlov’s brother, and sent him a text message with the address of the Premises where he had been shot;

(c)Ms B began cleaning the crime scene at the Premises; and

(d)Mr Parlov collected Mr A from the Premises and took him to Calvary Hospital, arriving at about 6.15 am, whereupon Mr A underwent emergency surgery, as detailed at [9] of the sentencing remarks reproduced above.

25․On 22 March 2021, Mr Mena and Mr Roberts were arrested.

26․On 30 March 2021, Ms B was arrested on suspicion of having committed offences related to cleaning the crime scene on 11 March. Ms B participated in police interviews that day and the next day, 31 March.

27․On 15 April 2021, Ms Parlov was arrested and charged.

28․On 16 December 2021, Ms B was sentenced to imprisonment for five months for an offence of concealing or destroying evidence with the intention of influencing a decision about starting a legal proceeding. She received a modest discount for agreeing to give evidence against the appellants and Ms Parlov. The commencement of the sentence was delayed until 25 January 2023.

29․On 24 and 25 May 2022, an application was made by the prosecution and granted by Norrish AJ to play recordings of Ms B’s police interviews at trial: R v Parlov; R v Mena; R v Roberts [2022] ACTSC 121; 298 A Crim R 229.

30․The first jury trial took place between 1 and 18 August 2022. The jury was discharged, being unable to reach a unanimous verdict.

31․The second trial took place between 21 November and 2 December 2022. By consent, Mr A and Ms B were not recalled to give evidence again, with their evidence instead being adduced by playing a video-recording of their evidence from the first trial. Neither accused gave evidence or called any evidence in their case. The jury returned guilty verdicts on 2 December 2022.

32․The sentence hearing for all three offenders took place on 6 and 11 April 2023. As noted above, there is no appeal from the sentences imposed.

Relevant legal principles

33․The two sets of principles of particular relevance to this appeal, unreasonable verdicts and identification evidence, may be conveniently stated at the outset.

Unreasonable verdicts

34․The principles applicable to unreasonable verdicts are not in doubt and are not contested by the appellants. However, they justify brief exposition because their precise terms have a material bearing on their prospects of success. The statutory provision in the Australian Capital Territory is s 37O(2)(a)(i) of the Supreme Court Act 1933 (ACT). Section 37O(2) provides:

(2)The Court of Appeal on an appeal against conviction must—

(a)allow the appeal if it considers that—

(i)    the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence; or

(ii)    the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision of any question of law; or

(iii)   on any other ground there was a miscarriage of justice; or

(b)dismiss the appeal.

35․The meaning of s 37O(2)(a)(i) has been reviewed again recently by this Court in Warne v The King [2023] ACTCA 1; 374 FLR 311 at [26]-[30] and Garay v The Queen (No 3) [2023] ACTCA 2 at [12]-[41]. In Warne at [30] the following concise characterisation was provided:

…success for the appellant on this ground involves a subjective event (the Court has a reasonable doubt) from which a normative proposition (the jury should have had the same doubt) must be established (cf R v Bragias [2016] NSWCCA 219, [5], [8] (McCallum J)). Proceeding from one to the other, in the light of M [v The Queen (1994) 181 CLR 487], involves excluding the advantage enjoyed by the jury as an explanation for it not having had the doubt entertained by the Court. That will usually be achieved if (as it was put in M) the evidence as it appears from the record “contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force”.

Identification evidence

36․The common law need for a trial judge to give cogent and effective directions to a jury about identification evidence, tailored to the case at hand, when that is a significant issue in a trial, was explained in Domican v The Queen [1992] HCA 13; 173 CLR 555 at 561-562, noting in particular the seductive effect of such evidence and its well-understood history and capacity to lead to miscarriages of justice. The legislative provisions dealing with this important issue are to be read and understood in light of those observations.

37․Section 116 of the Evidence Act extends the obligation beyond significant identification evidence and does not rely upon a direction being requested. It provides:

116 Directions to jury

(1)If identification evidence has been admitted, the judge must tell the jury—

(a)that there is a special need for caution before accepting identification evidence; and

(b)of the reasons for the need for caution, both generally and in the circumstances of the case.

(2)It is not necessary that a particular form of words be used in telling the jury.

38․The following passage from Domican at 561-562 (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ) remains apposite, omitting footnotes:

The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed "as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case". A warning in general terms is insufficient. The attention of the jury "should be drawn to any weaknesses in the identification evidence". Reference to counsel's arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge's office behind it. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence.

39․Section 165(1) of the Evidence Act deals with unreliable evidence and provides that this section “applies to evidence of a kind that may be unreliable”, followed by a non-exhaustive shopping list, which includes at (b) identification evidence. Section 165 then provides:

(2)If there is a jury and a party requests, the judge must—

(a)warn the jury that the evidence may be unreliable; and

(b)tell the jury about matters that may cause it to be unreliable; and

(c)warn the jury of the need for caution in deciding whether to accept the evidence and the weight to be given to it.

(3)The judge need not comply with subsection (2) if there are good reasons for not doing so.

(4)It is not necessary that a particular form of words be used in giving the warning or information.

(5)This section does not affect any other power of the judge to give a warning to, or to inform, the jury.

(6)[evidence by children]

(7)Any warning or information in relation to that matter may be given only in accordance with section 165A (2) and (3).

40․The particular responsibility of an appeal court in relation to an unreasonable verdict appeal ground depending on identification evidence was stated in Fennell v The Queen [2019] HCA 37; 93 ALJR 1219 at [81] (Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ), footnotes omitted:

Where a court of criminal appeal is called upon to decide whether it considers that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of the offence charged, the court must not disregard or discount either that the jury is the body entrusted with primary responsibility of determining whether the prosecution has established the accused’s guilt or that the jury has had the benefit of having seen and heard the witnesses. At the same time, however, the court may take into account the realities of human experience, including the fallibility and plasticity of memory especially as time passes, the possibility of contamination of recollection, and the influence of internal biases on memory. The court can also take into account the well-known scientific research that has revealed the difficulties and inaccuracies involved in assessing credibility and reliability. And especially is that so in a case like this where the jury has been subjected to the seductive effects of a species of identification evidence that has in the past led to miscarriages of justice.

41․Well-established concerns as to the hazards of identification evidence of the kind raised in this appeal were succinctly stated in Alexander v The Queen [1981] HCA 17; 145 CLR 395 at 426 (Mason J):

Identification is notoriously uncertain. It depends upon so many variables. They include the difficulty one has in recognizing on a subsequent occasion a person observed, perhaps fleetingly, on a former occasion; the extent of the opportunity for observation in a variety of circumstances; the vagaries of human perception and recollection; and the tendency of the mind to respond to suggestions, notably the tendency to substitute a photographic image once seen for a hazy recollection of the person initially observed.

42․It may be noted that aspects of the warnings in Alexander do not apply to this case: the observations under challenge, while not protracted, and taking place in a circumstance of high stress and drama, were not fleeting, and no photographs were involved in the identification process. While the appellants, and especially Mr Mena, place some reliance on Mr A and Ms B being responsive to suggestions and suggest the presence of cognitive bias, that argument requires close attention.

43․In the Victorian Court of Appeal in R v Lovett [2006] VSCA 5, Ormiston JA (with whom Buchanan and Ashley JJA agreed) said at [41]:

In the present case there can be little doubt that the relevant witnesses all knew the applicant in as much as they were either members of the football club or were connected to it, and all, with one or two minor exceptions, had met him on numerous occasions and were familiar with him. The vice in most identification evidence is usually seen in the manner in which a fleeting glance of the perpetrator of a crime is recalled and attached to a person or a picture of a person later shown to the witness; but I would be hesitant to say that, merely because a witness is already familiar with the person who it is believed was present at the scene of a crime, thereby it automatically follows that there is no need for a warning. Difficulties of observation at the time a crime is committed frequently are just as great and the possibility of jumping to conclusions as to the identity of the miscreant with a person already known may likewise be just as great, albeit that there will ordinarily be no need for any subsequent formal identification process. What is required in every case will vary, the object in each being to avoid a miscarriage of justice which may flow from the failure to warn a jury of the danger arising from possible confusion or mistake. Even as long ago as Davies and Cody [(1937) 57 CLR 170 at 181] the undesirability of placing cases relating to the identity of an offender in separate categories was reflected in the Court’s observation:

It is almost unnecessary to say that the amount of care and the nature of the precautions which should be taken when a potential witness is brought to identify an accused or suspected person must vary according to the familiarity of the witness with that person.

44․The concept of familiarity of a witness with the person they purport to identify has been articulated as an important distinction between evidence of recognition of a person known to the witness and evidence of identification of a person not previously known to the witness. Generally speaking, the risk of mistake is less for the former, but it remains a question of evidentiary quality. Warne at [31(c)] is an example of the application of this qualitative distinction:

Ms Walker’s evidence was that during the offending she had recognised a person who she already knew; not that a person she observed during the offending was the person in the dock. That factor does not in itself remove the difficulties involved in relying on identification evidence (as illustrated by R v Blundell [2019] SASCFC 84; 278 A Crim R 531 (Blundell), where one of the identification witnesses recognised the offender as the son of a neighbour having seen him only for “a split second”); however, it does change the position somewhat. The face of a person seen for the first time is likely to be very hard to commit to memory and recognise later; whereas most people will take only a moment to recognise a friend or acquaintance. Against that, there is the possibility of expectation bias, which the trial Judge pointed out to the jury.

45․In the South Australian Court of Criminal Appeal in R v Blundell[2019] SASCFC 84; 278 A Crim R 531, Peek J observed (Kourakis CJ and Hughes J agreeing); footnotes embedded:

[53]   There is, of course, something of a distinction between identification and recognition. The matter was well put by Blow J in R v Carr [(2000) 117 A Crim R 272, 289. See also Davies v The King (1937) 57 CLR 170, 181 (Latham CJ, Rich, Dixon, Evatt and McTiernan JJ); Mills v State of Western Australia (2008) 189 A Crim R 411, 432 (Buss JA)] thus:

61. As Boardman and Turnbull illustrate, “recognition” cases will often involve just as much danger of mistaken identification as cases involving persons first seen at the times of their alleged crimes. It would therefore be illogical to hold that a warning as to the dangers of mistaken identification of the sort discussed in Domican need never be given in a recognition case. Obviously, such a warning would be inappropriate when the witness is familiar with the appearance of the accused and the circumstances of the recognition leave little scope for any chance of a mistake. Whether such a warning is necessary in a recognition case must depend on all the relevant circumstances, including the degree of familiarity of the witness with the accused, the circumstances in which the accused was previously seen by the witness or known to the witness, and the circumstances in which the accused is alleged to have been seen by the witness at or about the time of the crime. …

[54]   I consider that such a distinction has very little part to play in the present case. Indeed, the critical evidence of Ms Williams presents the interesting spectacle of the witness originally eschewing (in the 000 call) any suggestion whatever of “recognising” someone she knew but at trial taking the different line that she had in fact seen the appellant prior to the day of the assault and that he had “looked familiar”. In such circumstances, nothing is to be gained by resorting to labels; one must directly consider whether the dangers that may have arisen in the case have been adequately addressed by the trial Judge.

46․In Warne, Blundell was commented upon by this Court and distinguished as follows at [50]:

[R v] Burchielli [[1981] VR 611] was cited by Peek J, writing for the South Australian Court of Criminal Appeal, in Blundell. There, an assault had occurred late at night and the only live issue was whether the appellant was the perpetrator. The victim described the incident as a blur and had selected a photograph of another person in an identification procedure. A neighbour, Ms Castellari, did not see the assault but gave evidence that her sensor light had come on and she had seen the appellant (whom she knew as the son of another neighbour) look up for a split second as he walked towards his mother’s unit. The victim’s partner, Ms Williams, gave evidence that she came out of her unit during the assault and saw the perpetrator’s face from a metre away. During her 000 call to the police she described him as “a random guy”. Later, somebody told her that the appellant was the perpetrator. Later still, she and Ms Castellari both participated in photographic identification procedures and both selected the appellant’s photograph.

47․The above authority makes it tolerably clear that beyond the above points of high principle which are not in doubt, the question of whether the identification evidence is strong enough, and whether the trial judge’s directions about it are sound, will invariably turn upon the evidence, facts and circumstances in the case at hand. Sometimes an element of recognition will be substantial and the identification evidence inherently less troubling; in other cases, such as Blundell, the basis for a prior recognition will be so fleeting as to add little or nothing to the evanescent nature of the evidence given about the observations made at the time of the event upon which the prosecution’s case turns.

48․It follows that the focus of the analysis of the competing arguments in this appeal must turn on a consideration of all of the evidence that was before the jury (Ground 1); and also, upon the trial judge’s directions to the jury in the context of that evidence (Ground 2). The Court must look to the circumstances in which the identification occurred, the degree of familiarity Ms B and Mr A had with the accused, and any circumstantial corroboration of their evidence.

The evidence in more detail

Ms Parlov and Mr Mena being together at about 8.00 pm on 10 March 2021

49․At about 8.00 pm on 10 March 2021, less than 10 hours before the shooting, Constable Jack Bigmore happened to speak to Ms Parlov who was in the company of two other people in Bonner. As already noted above, Bonner is another suburb of Canberra, not far from Spence where the shooting took place. One of those other two people was Mr Mena, whom Constable Bigmore recognised, having met him less than two weeks earlier on 24 February 2021. The evidence of Constable Bigmore was not the subject of cross-examination and is not challenged on appeal. It follows that, independently of any knowledge of, or evidence from, Mr A or Ms B, the jury had direct and independent evidence before them of Mr Mena and Ms Parlov being together in the period leading up to the shooting, not far from where the shooting took place.

50․This evidence was corroborative in nature as to identification in the sense identified in Doney v The Queen [1990] HCA 51; 171 CLR 207 at 211 (Deane, Dawson, Toohey, Gaudron and McHugh JJ) of supporting or strengthening other evidence so as to render it more probable. In this case, Mr Mena and Ms Parlov being together the night before the shooting, in the context of evidence of the other meetings and communications that took place in the lead up to the shooting, renders the evidence as to the identification of the intruders and the shooter, especially that of Mr A and Ms B, more probable.

Mr A’s and Ms B’s evidence

51․In light of the challenge to the identification evidence given by both Mr A and Ms B, it is necessary to reproduce significant portions of the transcript of their oral evidence at the first trial, which had been recorded and was played as their evidence at the second trial. Summaries and a general characterisation of that evidence would not adequately convey what was before the jury. This extends to the text of some of the screenshots of Facebook text messages and records of telephone calls (attempted and successful) between Ms B and both Ms Parlov and Mr Roberts, and to Ms B’s evidence about those communications.

Ms B’s evidence going to identification

52․During Ms B’s evidence in chief, she was asked questions about her first interview with police in which she expressed reluctance to tell them what had happened, progressing to the 3.15 am meeting on 11 March 2021, the night before the shooting, and then turning to how she knew Ms Parlov, Mr Roberts and Mr Mena:

Why didn’t you want to speak to police during that interview about what had happened?---Because when you go through something like that the ramifications that come about after it you don’t really need when you’ve got children and other loved ones that you care about that you try and protect.

What ramifications?---Well, for instance, threats, harassment, intimidation, assaults.

You said in your interview, and this is at question 48, ‘You have no idea the risk that someone takes in doing that’. Do you remember saying that to police?---Yes, I do.

Is that what you are talking about?---Yes. Well, if they can do that to him then what could they do to me? … (inaudible)…

If I could jump forward to the interview the following day. Why did you change your mind and speak to police?---To be honest, I’m – nobody should have been lives – at risk by somebody that has no proof, has no justification and you’ve done something for no reason whatsoever. There is no reason that somebody should potentially die because somebody just doesn’t like them, or doesn’t like what they’ve done.

Did you get in touch with police and ask them, ‘Look, can I speak to you again about what had happened’?---They asked me in the morning if I wanted to say anything else and, yes, I told them that I’d make another statement.

Now, in that interview with police, towards the end you mentioned that – sorry. With the second interview towards the end you mentioned that there had been some message or conversation earlier that night about you going up and waiting around the corner and ‘we’ll get Bec and Sugi to come down.’ Do you remember saying - - -?---Yes

Saying that to police?---Yes

What were you talking about there?---We had met up with Bradley Roberts in a carpark at the shops. He was outside the vehicle asking about the accusations that were made against him being a kiddie fiddler and wanting to clear his name. Brad stuck his head in the window of the car and said to me ‘Is this the guy that was at your house a week ago?’ I said, ‘Yes’. He said, ‘I’m going to call Bec and Sugi’. He made the phone call while we were standing there and he said, ‘Go up around the corner and wait’. We told him that we would be gone for five or 10 minutes because we had to drop something that was in the car off and when we left there was just phone call after phone call after phone call. I told [Mr A] that I didn't think that it was a good idea that we go back there because of how persistent they were with the phone calls.

Can I just – I just want to interrupt. I will ask you some more questions about what happened later on that morning. But just so we can understand it, how did it come about that you met Brad in the carpark?---I was asked earlier that night by Rebecca if I had methamphetamine and I said yes. She told me that Brad wanted to meet up with me. I then told her, like, ‘Is he going to actually show this time?’ She said, ‘Yes’, and that’s when we ended up meeting him in the carpark.

And when you say Rebecca who is that?---Rebecca Parlov.

How long had you known her at that stage?---I’ve known Rebecca since 2018.

So what is that, about three years?---Yes, three or maybe four years.

How would you describe how often you had contact with her?---I would see her on a daily basis. I pretty much lived with her.

Now, what about Brad?---Pardon?

What about Brad? How did you know him?---I met him through Parlov and - Rebecca Parlov and Sugi.

And how long had you known him for?---I’d only met him a few times. Like, I hadn’t spent much time with him. Probably a handful to 10 times.

53․After giving evidence of the contact details Ms B had obtained for Mr Roberts, as reflected in the Facebook text messages referred to below, her evidence in chief returned to the topic of the 3.15 am meeting, as follows:

When you were at the car park with Brad and you mentioned that he wanted to get Bec and Sugi, what was his demeanour like, his body language?---He was – I don’t know how to describe it. He wasn’t, like, acting a big and tough. He was focused on contacting Rebecca and Sugi. When he was reached over to the window of the car and asked me if that was the guy that …(inaudible)… he was whispering to me and then was trying to contact Rebecca and Sugi while evading the questions that [Mr A] was asking him.

What was [Mr A] asking him?---Why he was put on the paedophile – why they were accusing him of being a paedophile and he just refused to answer.

Sorry, who refused to answer?---Bradley.

54․After some questions about Mr A driving them away from the 3.15 am Bonner meeting, Ms B was asked in chief about her prior knowledge of “Sugi” and “Brad” (that is, Mr Mena and Mr Roberts):

You mentioned the name Sugi?---Yes.

Do you know Sugi?---I know him through Rebecca Parlov.

Okay. How long have you known him through her for?---Not long. Only, again, a handful of times of meeting him. I just knew that he was supposed to be one of Rebecca’s partners.

What do you mean when you use the word ‘partner’?----Well, they were always together and she referred to him as her boyfriend, yeah.

So when you had seen Sugi, were you in Bec’s company on those occasions?---Yes.

Had you spoken to him previously on those occasions?---Probably if I’ve been with Bec, yes.

Yes. What about the occasions that you’ve seen Brad before? Had you spoken to him before?---Yes.

This wasn’t the first time that you’d ever spoken to him in the car park?---No.

55․The evidence in chief of Ms B then immediately turned back to the events after the 3.15 am Bonner meeting up to the time that Mr A was shot less than three hours later:

Tell us what happened as you were driving around that night?---After we had left the shops, we received a message from Bradley Roberts telling us to meet up at Mulligans Flat. We told him that we had to do something - - -

Sorry. Just for the people in the court who don’t know, Mulligans Flat is near the Bonner shops, is that right?---I don’t know. I just – that’s why I had him drive me around.

Okay. You said that you replied saying you had something else to do, so keep continuing?---Yes. So we had to go drop off another person that was in the car so we went to do that. After we’d done that, that’s when multiple phone calls, text messages, something about ‘I’m not going to let this slide’, ‘I need the money back,’ or something. I can’t remember whether that was from Rebecca’s Facebook or from Bradley’s Facebook but one of them sent that. We – after we dropped the other person in the car off, we’ve gone back to my house and we - - -

Just before you tell us what happened at your house. You said that you received multiple calls, I think. Did you answer any of them?---There was a fair few that I didn’t answer and then I did answer one and that was when we were back at my house.

So tell us about that?---So after getting the message that ‘I’m not going to let this slide’, ‘need the money back’, I ended up answering one of the Facebook phone calls from Rebecca Parlov and during that phone call she was, ‘Where are you?’, ‘Tell me where you are’, ‘We’re going to find you one way or another.’ I kept telling her, ‘This doesn’t need to happen. He’s not trying to hide from it, that’s why he got out of the car, that’s why he tried to talk to Bradley.’ She’s, like, ‘Youse were meant to wait up the road.’ Told her that, ‘He’s willing to talk. Just calm down.’ Then I heard the disturbance through the phone while the car went past the front of the house. That’s when she’s said that, ‘Just tell us where you are. I can’t keep driving around like this.’ I told her that, ‘Don’t be stupid. You know where we are. I heard the car,’ and that’s when her car – I heard her pull up and the car stopped and she’s turned around and she said, ‘That’s right. I do know where you are.’ We …(inaudible)… and I ended up having the phone on speaker. [Mr A] was talking to her. She kept telling me to come out the front. I kept telling her that I was at my house and not to do this at my house. He – sorry. She started banging on the door. She banged and I opened the door. I told her not to do that there. And she said that, ‘We’re coming in one way or another.’ I looked at [Mr A]. [Mr A] looked at me. I said to him that she’s – she’s going to come in one way or another. He definitely nodded. I opened the door. She shoved past. She just come straight in, straight up in [Mr A]’s face. He’s – he was sitting on a chair. He stepped up from the chair that was in the kitchen and I was sitting on the table. He’s grabbed a kitchen knife and he’s taken a step back. At this point Bradley was sitting near the cupboard thing that I had next to the table, and as I walked into the kitchen she’s yelled out, ‘You want to pull – you want to pull a knife on me girl?’ And then Sugi’s come through the door. And I stepped back through the – to where the lounge is. I was in the kitchen next to the oven. Sugi’s come through, stood in front of – stood in front of the wall that’s in front of the door and [Mr A]’s taken a few steps over, standing next to the fridge and then I heard the gun go off. He’s spun around and looked over. Sugi’s following him with the gun. He points the gun and then he shoots [Mr A] in the face.

56․After a luncheon adjournment, Ms B identified screenshots of Facebook messages and calls between her and Ms Parlov in the period from 22 February 2021 to 5.19 am on 11 March 2021, a short time before the entry to the Premises soon after 5.30 am. Those screenshots were admitted into evidence, without objection, as Exhibit 19.

57․The Facebook messages in Exhibit 19 confirm numerous communications between Ms Parlov and Ms B between 1.26 am and 5.34 am on 11 March 2021, including Ms Parlov’s inquiries about Ms B’s whereabouts, Ms B saying she was at home, and an over 13-minute call from Ms Parlov starting at 5.34 am. Ms B was asked questions about some of those communications, confirming aspects of her evidence reproduced above. Ms B then gave evidence about the 5.34 am telephone conversation flowing into the entry of the intruders into her home:

Do you see that there is a phone call from Rebecca at 5.34 am that morning?---Yes.

Is this the phone call that you told us about as you heard the car pull up outside your house?---Yes, it is.

You mentioned that you had that phone call on speakerphone to police?---No, to [Mr A].

Sorry, in the interview to police do you remember - - -?---Yes.

- - - mentioning that you had it on speakerphone?---Yes, I ended up putting it on speakerphone to begin with. It wasn’t - - -

What I want to ask you is can you just tell us what Bec’s tone of voice was when she was on the phone to you in that call?---Very aggressive.

You mentioned before that you thought the comment about not letting it slide related to money. Is that right?---Yes.

But you have also mentioned that there was some complaint or conversation about [Mr A] being a pedo, or something like that?---Yes.

In this phone call that she had with you that you had on speakerphone what was the – what was the call about?---She wanted to know – she was calling and trying to know where we were. She wanted us to meet up with her so that she could talk to [Mr A], [Mr A], about him being a paedophile. Because I wouldn’t tell her where we were, she kept making noises, just telling me, ‘I can’t keep driving around like this’. The once she’s pulled up and I told her that she already knew where we were and she’s like, ‘Yes, you’re right. We’re coming in. Open the fucking door’ and started banging on the door until I had opened it.

58․After some evidence about Ms B telling police she had told Ms Parlov and Mr Roberts that Mr A was “more than happy” to talk to them about allegations he was a paedophile, being a reference to the 3.15 am Bonner meeting, Ms B gave evidence about the 5.34 am telephone call from Ms Parlov. That call was put on speaker phone by Ms B, evidently so that Mr A could hear what was being said. That conversation continued into the time the intruders entered the Premises. Ms B’s evidence in chief at that point was as follows:

Now, looking at that Facebook page in front of you, page 21, and that phone call - - -?---Yes.

- - - when there was the kicking at the door did – could you still hear her through the speakerphone?---Through the speakerphone and through the door.

Where was your phone at the time?—[Mr A] was holding the phone at that point in time and he was sitting at the kitchen table.

And where were you?---I was standing off to the side of the bench in the kitchen.

And I think you told us you opened the door. Is that right?---Yes, I – when she kept saying, ‘Open the fucking door, we’re coming in anyway’, I looked at him and when he’s looked at me he said, ‘They’re gunna come in one way or another’. He sort of nodded towards the door, I opened the door and they’ve pushed past.

When you say pushed past you can you just described how they did that?---Well, I’ve opened the door, Rebecca shoved open the door, walked straight – like, pushed me back because there’s like – when you go through the front door there’s a wall that sort of just blocks the front of the door. She’s pushed me there, walked straight through, straight up to [Mr A], and Bradley has come straight through the door and then, like, walked back into the kitchen.

What was Bec’s body language as she pushed past you?---Well, she shoved me so I would say aggressive.

What was Brad’s body language like when he came in?---Brad was walking and stood off to the side and he – yes.

When they came in, was the phone still on the table?---I believe so. I can’t remember.

Do you know if anyone ended that phone call while they were in the house, and if you don’t recall, that’s okay?---I don’t recall.

59․Ms B then gave evidence about the appearance of the intruders:

I think you told police that you weren’t really focusing on the gun?---No.

Did you remember what Sugi – and I know this is sort of fine detail, so if you don’t, just say so but do you remember what he was wearing at all?---I can’t remember exactly. He had a mask. He had that – they were tight pants. I can’t remember whether it was long sleeve or - - -

That’s okay. With the mask, what sort of mask was it?---Just a black mask that come across his nose.

Like a covid mask?---Yes. Yes.

All right. Did Bec or Brad have anything covering their faces?---Can’t remember off the top of my head. I know Parlov had gloves on. I remember Rebecca had gloves on. I can’t remember whether there was anything covering their faces.

What sort of gloves did she have on?---Just looked like black gloves.

I want to take you to the part where [Mr A] was shot. You said that Sugi shot him and then he was fumbling with the gun again?---Yes.

Do you recall what he was doing with the gun after he shot him the first time?---No, not really. I looked over and I could just see him lift it up, put it back down, lift. I was more worried just on what had just happened, yes.

Do you know, or are you able to recall the gap in time between the first shot and the second shot?---Not really but it didn’t seem very long at all.

When [Mr A] was shot the first time, do you remember what Bec and Brad were doing?---Bec was standing off between the couch in the lounge room and the bench in the kitchen and Brad was standing off to the side where the chest of drawers is.

Did they move?---It didn’t look like they moved. I wasn’t really focused on that.

How were you feeling at that time?---Disgusted. Gutted. Petrified. Like, somebody that I was supposed to be able to look after in the confines of my home was just shot.

60․Ms B then gave evidence about what happened after the second shot was fired, which also included additional evidence about the moment of entry leading up to the shooting:

When he was shot the second time, tell us what happened?---He grabbed his face. He’s instantly taken off for a …(inaudible)…, so around the kitchen, around the corner and into the toilet. I followed him. As I followed him, Rebecca and Bradley had started to move towards the door. I got around the corner. When I come back around from trying to get him out of the toilet, they were all gone.

Do you remember – I probably should have asked this but when Sugi shot him, do you recall how he was holding the gun or you don’t recall?---I can’t say 100 per cent but I’m pretty sure he just held it up with one hand.

While they were in the house, or when Sugi was in the house, did he say anything?---I think he did when he came through the door but I can’t recall what it was.

Did Brad say anything?---Not from memory.

Sorry, I interrupted you as you were answering that question before about if Sugi said anything?---As I said, I’m pretty sure he said something when he first came in. I can’t recall what it was. Brad didn’t say anything, and the only thing I remember Rebecca saying when she came in was,’ Are you going to pull a knife on a chick?’

When you saw Sugi come in or in the house, what was his body language like?---He came storming through the door and just raised the gun straight away.

How long were they all in your house for, do you recall?---It didn’t seem like long. It – I don’t know, 10 minutes or so? I don’t know. It just did not seem like long. They came straight in, Rebecca walked straight up to Sugi – straight up to [Mr A] at the table. [Mr A]’s, as I said, grabbed the knife, taken a step back. She said, ‘Are you going to pull a knife on a chick?’ Sugi’s come through the door and that’s when [Mr A]’s taken a few steps over and stood in front of the fridge next to where I was, and that was when the first shot went off.

If I can take you to the point in time as you came back from the toilet to check on – I think followed [Mr A] and you looked around and they had gone, they’d left the house. How were you feeling at that point?---Panicked. Didn’t know what to do. Somebody was about to die in my house.

61․After giving evidence about the aftermath of the shooting, Ms B identified screenshots of Facebook messages between her and Mr Roberts (apparently including the use of Mr Roberts’ Facebook account by Ms Parlov) in the period from 9 March 2021 to 5.19 am on 11 March 2021, again a short time before the entry to the Premises. Those screenshots were admitted into evidence, without objection, as Exhibit 20.

62․The Facebook messages in Exhibit 20 record messages between Ms B and Mr Roberts’ accounts from 9 March preceding the 3.15 am Bonner meeting, and then after that meeting up to and including the entry of intruders into Ms B’s home. Those Facebook messages include Mr Roberts, at 3.29 am on 11 March, insisting on meeting (again) with Mr A rather than speaking by telephone.

63․Those messages were as follows, with the last entries indicating that they were sent by Ms Parlov using Mr Roberts’ account:

Mr Roberts: Go up near Mulligan’s flat

Ms B: He said he will ring in around about 15

Mr Roberts: No ring cunt he seeing him face to face

Ms B: He said yeah we just have to do something real quick

Mr Roberts: Were r u going?

Ms B: Kind of busy call you in a min

Mr Roberts: Nah call me now

Mr Roberts: Niggy wants you to call my Facebook now

Ms B: I can’t

Mr Roberts: Answer I’m not letting it slide so fucking answer

Mr Roberts: Oi

Mr Roberts: *thumbs up emoji*

Mr Roberts: [Ms B] it’s bec just got to the boys my phone’s fkd call me now aye please

Mr Roberts: Out of all people don’t ignore me

Mr Roberts: It’s bec

*missed call from Mr Roberts to Ms B*

64․Ms B gave evidence about the meaning of aspects of those texts. Her evidence about the last of the texts she sent, referring to “just got to the boys” was as follows:

214․The proper conclusion is that Norrish AJ did not err in his ruling and as a result the two interviews of Ms B were properly treated as her evidence in chief. This ground must fail.

Orders

215․For the reasons above, both appeals must be dismissed.

I certify that the preceding two hundred and fifteen (215) numbered paragraphs are a true copy of the Reasons for Judgment of the Court.

Associate:

Date: 29 November 2024