Ong v The King

SUPREME COURT OF VICTORIA COURT OF APPEAL
S EAPCR 2024 0009
AARON ONG	Applicant
v
THE KING	Respondent

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JUDGES:	KENNEDY, BOYCE and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	18 February 2025
DATE OF JUDGMENT:	3 March 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 21
JUDGMENT APPEALED FROM:	DPP v Rider & Ong [2023] VSC 466 (Beale J)

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CRIMINAL LAW – Appeal – Conviction – Applicant convicted of murder – Whether conviction unsafe and unsatisfactory – Strong circumstantial case – Two offenders shot deceased 11 times following vehicle pursuit – Applicant and offender no.1 left motorcycle club at same time on night of murder – Offender no.1 and offender no.2 alighted from vehicle when pursued by police following murder of deceased – Offender no.2 carrying bag – Offender no.2 dropped bag in course of evading police capture – Bag contained clothing worn by the applicant on night of the murder – Neither the applicant’s phone, nor that of offender no.1, used to make a telephone call or send a text message in hours preceding, during and following murder – Inferences – Application for leave to appeal refused.

Criminal Procedure Act 2009, s 276.

M v The Queen (1994) 181 CLR 487; SKA v The Queen (2011) 243 CLR 400; Pell v The Queen (2020) 268 CLR 123; Plomp v The Queen (1963) 110 CLR 234; R v Baden-Clay (2016) 258 CLR 308; Coughlan v The Queen (2020) 267 CLR 654; R v Van Beelen (1973) 4 SASR 353; R v Chamberlain [No 2] (1984) 153 CLR 521; R v Hillier (2007) 228 CLR 618, referred to.

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Counsel
Applicant:		Mr T Kassimatis KC with Mr S Tovey
Respondent:		Ms EH Ruddle KC with Mr T Bourbon
Solicitors
Applicant:	Fayman Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

KENNEDY JA
BOYCE JA
KAYE JA:

On 9 November 2019, at approximately 2:00am, Paul Virgona (‘Virgona’) left his home at Croydon to attend his business, which involved him first attending Epping Markets. He drove his work van onto Eastlink, driving in the direction of the city.
At approximately 2:15am, shortly after he exited the Melba Tunnel, and just east of the Mitcham Road overpass, a stolen grey Mercedes Benz motor vehicle, that had been following Virgona since he left his home, drove alongside the van. The passenger in the Mercedes discharged 11 rounds from a semi-automatic handgun into the driver’s door of the van, striking Virgona at least seven times below the waist. The Mercedes vehicle then sped off, taking the nearby Springvale Road exit. Virgona’s van spun out of control, and came to rest in the right hand lane of the Eastern Freeway. Virgona died, seated at the steering wheel of the van.
The applicant, and Josh Rider, were subsequently charged with the murder of Virgona. Shortly before the commencement of their joint trial, Rider pleaded guilty to the charge. Following a trial of some three weeks, the jury returned a verdict, finding the applicant guilty of the charge. The applicant was sentenced to a total effective sentence of 35 years’ imprisonment, with a non-parole period of 24 years and 6 months.
The applicant seeks leave to appeal against conviction on one ground, namely: the jury’s verdict is unreasonable, or cannot be supported having regard to the evidence.
The application for leave to appeal against conviction was filed 28 days after the expiration of the prescribed time, accordingly, the applicant has also filed an application for an extension of time. That application is supported by an affidavit of the applicant’s solicitor.

Summary of circumstances

At the trial, a substantial amount of the relevant facts were either admitted, or not in issue. In particular, it was not in issue that there were two occupants of the Mercedes vehicle at the time at which the fatal shots were fired at Mr Virgona. It was also common ground that one of the persons in the Mercedes vehicle was Rider. The critical issue was whether the jury was satisfied, beyond reasonable doubt, that the second person in that vehicle was the applicant.
The prosecution case against the applicant was essentially circumstantial. Accordingly, the central question for the jury was whether it was satisfied that the only reasonable inference available on the evidence was that the applicant was, in fact, the second occupant of the Mercedes vehicle.
The evidence before the jury established the following non-controversial facts.
At the time of the offending, Rider and the applicant were each members of the Mongols OMCG motorcycle club. They had known each other for about two years. On 8 November 2019, Rider arrived at the Mongols’ clubhouse in Port Melbourne at 7:48pm, and Ong arrived there at 7:54pm.
At 10:25pm, Rider and the applicant both left the clubhouse together. Rider was then wearing a black ‘Fluid Health’ hoodie, which he had purchased at 7:36pm on the same date. The applicant was wearing a black Nike jumper, with two-tone grey sleeves. The applicant was also wearing a cap. After they exited the premises, Ong walked towards the car-park. Rider drove away from the front of the premises in his motor vehicle. He returned to his home address at 22A Lalor Street, Port Melbourne at 10:32pm, and he entered his property. Another person (who, the defence at the trial invited the jury to find, was the applicant) was captured by CCTV, arriving shortly afterwards on a motorbike at 24 Lalor Street, Port Melbourne.
At 10:56pm, a white Volkswagen Amarok vehicle (1MC 9PG), driven by Rider, was captured in the Burnley Tunnel on Citylink, travelling outbound. That vehicle had been stolen from premises at Meadow Heights on 27 October 2019.
At 11:22pm on 8 November 2019, the Amarok and a grey Mercedes Benz motor vehicle were on the Princes Highway, and then Police Road, Springvale. The Mercedes Benz had been stolen from premises at Albert Park on 21 September 2019. At 11:28pm, the Amarok and the Mercedes Benz entered Eastlink at the Police Road entrance, travelling north. At 11:37pm, the vehicles exited Eastlink onto the Ringwood Bypass, and, at 11:53pm, they arrived at Jaxlee Close, Mooroolbark. The Amarok then parked in a building site in Jaxlee Close. The Mercedes, with two men on board, left Jaxlee Close at 11:57pm.
On 9 November 2019, at 12:02am, the Mercedes vehicle drove past the location of Mr Virgona’s home in Croydon, before parking in a nearby street, at a point at which the occupants of the Mercedes were able to observe Mr Virgona’s home. Shortly after 2:02am, Mr Virgona left his home, and drove his Volkswagen van, via Mount Dandenong Road, to the Ringwood Bypass, before entering Eastlink, travelling northbound at about 2:12am. He was followed by the Mercedes vehicle.
At about 2:14am, the Mercedes accelerated, and pulled alongside Mr Virgona’s van. Eleven shots were then discharged from the Mercedes vehicle, after which, the vehicle spun and came to rest approximately 100 metres east of the Mitcham Road overpass.
After the shooting, the Mercedes vehicle exited Eastlink at Springvale Road, which is approximately 300 metres from the scene of the shooting. The offenders then returned to Jaxlee Close in the Mercedes vehicle, where they set it on fire, and drove away in the Amarok at 2:36am. CCTV at Jaxlee Close captured the driver wearing a dark, striped top, and the passenger wearing a light coloured top.
The Amarok was next sighted by police members Senior Constable Hunter and Constable Chell at 3:11am on Burwood Highway, turning left onto Ferntree Gully Road. The police members commenced a pursuit of the Amarok vehicle. At approximately 3:17am, the pursuit came to an end at the corner of Scoresby Road and Mountain Highway in Bayswater, when the Amarok crashed into a street sign.
The driver and front passenger of the Amarok each fled the vehicle. The driver jumped over a nearby fence and fled, directly into Marie Wallace Bayswater Park. The passenger, carrying two bags, ran along the fence-line of the park for some 20 metres, before dropping the bags, jumping the fence, and also fleeing into the park.
One of the bags, dropped by the passenger, a Culture Kings branded bag, contained the jumper, that had been worn by the applicant at the Mongols’ clubhouse on the previous evening. The applicant’s DNA was also located on other clothing, that was contained in the Culture Kings bag. The plastic Coles bag, that was dropped by the passenger, contained clothing on which Rider’s DNA was detected. The bags each contained a pair of trousers, and, in the pocket of each of them, was one $5 note.
At 6:44am, Rider caught a taxi from premises at Wallace Road, Wantirna South, and he arrived back at his home at 22A Lalor Street, Port Melbourne, at 7:19am. He left his home again, in his own motor vehicle, at 7:35am, before returning some three minutes later, at 7:38am.
Subsequently, based on forensic and other evidence, the applicant and Rider were each arrested on 22 January 2020. They both made no comment police interviews.
At the trial, the prosecution alleged that the applicant was criminally involved in the murder of Virgona, on the basis that he entered into an agreement or arrangement with Rider, to commit that offence, pursuant to s 323(1) of the Crimes Act 1958. The judge directed the jury that, in order to convict the applicant, it must be satisfied, first, that the applicant and Rider agreed to commit the murder; secondly, that both the applicant and Rider participated in carrying out that agreement; and, thirdly, that either the applicant or Rider committed the murder of Virgona, pursuant to that agreement.

Summary of evidence

As we have noted, at the material time, Rider and the applicant were each associates, and were members, of the Mongols motorcycle club. Marc Giffening (‘Giffening’) was also an associate of Rider and Ong, and he was a member of the motorcycle club.
At the trial, there were agreed facts that on 21 September 2019, the grey 2014 Mercedes Benz vehicle was stolen from premises in Albert Park, and, between that date and 9 November 2019, the genuine registration plates for the vehicle were removed, and cloned registration plates, bearing the registration AZE 010, were affixed to it. It was further agreed that, on 27 October 2019, the Volkswagen Amarok vehicle was stolen from premises in Meadow Heights by one Dylan Leneham. Between that date and 7 November 2019, the registration plates for the vehicle were removed, and cloned registration plates, bearing the registration number 1MC 9PG, were affixed to it.
Shortly after midnight on 7 November 2019, Giffening left his home in Bundoora in the stolen Amarok, and drove to the Port Melbourne area. At approximately 12:30am on 8 November, he left the Amarok in the vicinity of Port Melbourne, and returned to his home in Bundoora.
In the meantime, on 6 November 2019, Alicia Neylan, a girlfriend of Giffening, purchased a yellow fuel container from Bunnings in Thomastown.
There were further agreed facts as follows. On 8 November 2019, Giffening attended the premises of the motorcycle club at 7:29pm. At 7:36pm, Rider purchased the black ‘Fluid Health’ hoodie in Port Melbourne, attended his home address in Port Melbourne, and then, at 7:44pm, he exited that address and drove his motor vehicle to the motorcycle club, where he arrived at 7:48pm, wearing the black Fluid Health hoodie that he had purchased minutes earlier. He parked his vehicle near the entrance. At 7:54pm, the applicant also arrived at the premises of the motorcycle club, wearing the black Nike jumper with two-tone grey sleeves.
The agreed facts further recorded that, at 10:25pm, the applicant and Rider both exited the premises of the motorcycle club. The applicant walked towards the car-park, and Rider drove away from the front of the premises in his motor vehicle. At 10:32pm, Rider returned to his home address in his vehicle, and entered his premises.
As we have noted, CCTV footage captured another person arriving at 24 Lalor Street, Port Melbourne (that is, the premises adjacent to Rider’s home), a few minutes later.
At 10:56pm, the Amarok was at the Burnley Tunnel on Citylink, travelling outbound. At 11:22pm, the Amarok and the Mercedes were each on the Princes Highway, and they then travelled into Police Road, Springvale. At 11:28pm, they entered Eastlink at the Police Road entrance, travelling north, and, at 11:37pm, they exited Eastlink, onto the Ringwood Bypass. At 11:37pm, the two vehicles arrived at Jaxlee Close, Mooroolbark. The Amarok parked in the building site at Jaxlee Close, Mooroolbark. At 11:57pm, the Mercedes departed Jaxlee Close, Mooroolbark.
Hayden Long, a builder, was, at the time, constructing a house at 20 Jaxlee Close, Mooroolbark. The site was monitored by three motion sensored CCTV cameras. Mr Long gave evidence that, shortly before midnight on 8 November 2019, he received notification on his mobile phone, which was triggered by movement in front of the CCTV cameras. The CCTV camera recorded the Amarok on the building site. As he viewed the footage, Mr Long observed a silver Mercedes vehicle leaving the premises at a rapid speed. Mr Long drove to the premises and observed the Amarok, and took a photograph of it.
In the meantime, the Mercedes vehicle arrived at the location of Mr Virgona’s address in Croydon, at 12:02am. At 2:02am, Mr Virgona departed his home address in the Volkswagen van, and it was followed by the Mercedes. At 2:12am, Mr Virgona’s van entered Eastlink at the Ringwood Bypass, and was followed by the Mercedes.
At approximately 2:15am, shortly after exiting the Melba Tunnel, the Mercedes accelerated and drew alongside Mr Virgona’s van. The passenger in the Mercedes then fired 11 rounds from a semi-automatic handgun into the driver’s door.
The incident was witnessed by Damian Galle, who, at the time, was working at a nursery in Silvan. Mr Galle was due to start work at 1:30am. As he entered the Melba Tunnel, a Volkswagen van, which was travelling in the same direction as him, moved in front of him. Mr Galle observed the grey Mercedes vehicle overtake him on the shoulder lane of the vehicle. After Mr Galle exited the tunnel, and crested the hill, he observed the van rotating in a circle on the freeway. Mr Galle pulled up alongside the van. He telephoned the emergency number, 000, and reported what he had seen.
Shortly after the shooting, at 2:15am, the Mercedes vehicle exited Eastlink at Springvale Road, and, at 2:34am, it returned to Jaxlee Close, Mooroolbark. At 2:36am, the Mercedes was set alight, and two persons departed Jaxlee Close in the Amarok. In his evidence, Mr Long described how, at 2:34am, his telephone notified him of another motion sensor alert at the premises at Jaxlee Close. He saw an explosion flash, and realised that a motor vehicle was on fire. He also noted two people run to a vehicle, and then depart.
At the time, Leading Senior Constable Justin Hunter was performing divisional van duties with Constable Emily Chell. At about 2:40am on 9 November 2019, they received information over police radio, concerning the shooting. At 3:11am, they observed the Amarok driving city-bound on the Burwood Highway, as it veered left into the turning lane onto Ferntree Gully Road, Ferntree Gully. They then commenced a pursuit of the vehicle. The pursuit concluded at 3:17am, near the corner of Scoresby Road and Mountain Highway in Bayswater, when the Amarok collided with a ‘Give Way’ sign, continued across lanes of traffic, over a median strip, and ended up on the other side of the road. The occupants of the vehicle immediately exited the Amarok and fled.
Senior Constable Hunter observed the occupant of the driver’s side to be wearing a black or dark coloured hoodie. That person ran straight towards the wire fence. He jumped the fence, using both of his arms to lever himself over it. He then ran into Marie Wallace Bayswater Park. At the same time, the passenger, who was wearing a light coloured hoodie, with the hood pulled up, exited the vehicle, carrying two large bags. He ran towards the fence, and then ran down the footpath for approximately 20 metres, before he dropped the bags, jumped the fence in the same way as the driver had, and ran into the park. At that time, Senior Constable Hunter had exited the police vehicle, and had started to give chase to the passenger, along the footpath. After the passenger jumped the fence, Senior Constable Hunter secured the scene, and did not give further pursuit, in order not to contaminate the track, which might have been left for tracker dogs to follow.
There were further agreed facts, that the Coles plastic bag, carried by the passenger of the vehicle, contained a black ‘Fluid Health’ hoodie, a pair of white Adidas-branded runners, and a pair of grey ECHT-branded leggings, with one $5 note in the left pocket of it. Each of those items of clothing belonged to Rider. The Culture Kings bag contained a black Nike-branded jumper, with two-toned grey sleeves, a pair of black Nike-branded runners, a pair of dark Adidas-branded tracksuit pants, with one $5 note in the left pocket, an empty Kit Kat wrapper, and a partially eaten Kit Kat. It was an agreed fact that the Culture Kings bag, and each of those items of clothing, all belonged to the applicant.
The first police member to attend the scene of the shooting, Sergeant Tamara Brisbane, arrived at the scene at 2:27am, with First Constable Max Edwards. Sergeant Brisbane located the Volkswagen van, positioned in the far right hand in-bound lane of the freeway. She observed multiple bullet holes in the driver’s side panel, and a large pool of blood under that side of the vehicle. She observed a male (Mr Virgona), who appeared to be deceased, in the driver’s side.
Leading Senior Constable Darren Watson, of the Ballistics Unit, attended the scene at 4:10am on 9 November 2019. He concluded that 11 separate fired bullets had been discharged into the driver’s side of the van. Nine of those bullets had struck the door, and two had struck the B pillar area. All of the bullets had been discharged from the same firearm. Leading Senior Constable Watson concluded that several of the bullets had struck Virgona. It was most likely that the bullets were fired from a semi-automatic handgun.
Dr Melanie Archer, Forensic Pathologist, conducted a post-mortem examination on the body of Virgona. She found that the deceased had sustained a total of 17 gunshot injuries, caused by at least seven shots fired into him. All of the entrance wounds were from the right, extending from the hip to about the knee area. The projectile trajectories were approximately horizontal, and passed from right to left. Dr Archer concluded that the cause of death was blood loss.
Sergeant Matthew James conducted a preliminary examination of the Volkswagen Amarok in Mountain Highway, Bayswater, at 6:40am on 9 November 2019. Sergeant James was attached to the Chemical, Biological and Radiological Unit of the Forensic Laboratory at Macleod. He took DNA swabs from different parts of the Amarok, namely: the four exterior door handles; the tailgate handle; the latch area of the bonnet; the four interior grab handles; the four interior lever handles of the doors; the steering wheel; the park brake; the gear lever; each of the five seatbelts; the interior side of the front windscreen; and the ignition key and the spare key, which had been later located on the highway. He also received and took into possession the Culture Kings bag and the Coles bag, that had been left at the scene.
Tanith Condon, a Forensic Officer at the Victoria Police Forensic Services Department, gave evidence in her capacity as a forensic officer in the Chemical Trace Unit. She examined and analysed several samples that were taken from the Amarok, from the Coles plastic bag, from the black Nokkon-branded hooded jumper, which read ‘Fluid Health’, the black Nike jumper, and the Culture Kings bag.
Ms Condon analysed 14 samples from the Amarok. The analysis revealed that the Amarok had particles, that were characteristic of gunshot residue, in four locations, namely, on the steering wheel, on the driver’s side front seatbelt, on the passenger side front door, and on the passenger side dashboard. There was no gunshot residue detected on the plastic bag, the Culture Kings bag, or the two hooded jumpers.

In cross-examination, Ms Condon agreed that the majority of the particles were located on the driver’s side of the Amarok. However, she said that that did not necessarily mean that the driver of the Amarok was the person who had discharged the weapon from the Mercedes, although that was the most likely scenario. She explained that gunshot residue is similar to dust, and it moves very easily from one site to another.
Janelle Heffernan is a Forensic Biologist at the Victoria Police Forensic Services Centre. She specialises in DNA analysis, biological examination and testing. Ms Heffernan analysed several items of interest in connection with the case, by reference to the DNA profiles of associated persons, including Rider and the applicant.
Ms Heffernan found that there was no relevant DNA profile obtained from the eight cartridges that were collected at the scene, or from the Coles plastic bag.
Samples from a pair of grey ECHT tracksuit pants, a black Fluid Health hoodie, and a pair of Adidas shoes, contained in packaging labelled ‘Mountain Highway, Bayswater’, were analysed, and each revealed extremely strong support for the proposition that Rider was a major contributor of the DNA on each of those items.
Four samples from the Culture Kings sports bag were analysed. Three of the samples revealed extremely strong support for the proposition that the applicant was a major contributor of the DNA analysed; the fourth sample revealed very strong support for that proposition. A pair of black Adidas tracksuit pants, which had been contained in the Culture Kings sports bag, was analysed, and revealed a mixed DNA profile of four contributors. The DNA evidence was 100 billion times more likely if the applicant and three unknown people were the contributors than if four unknown people were the contributors to the sample. Samples from the black and grey Nike sweater revealed extremely strong support for the proposition that the applicant was a major contributor. Samples from a pair of Nike shoes revealed only a partial DNA profile on the left shoe, and the contributors were inconclusive. The right shoe revealed extremely strong support for the proposition that the applicant was a major contributor to the DNA identified on that shoe. Samples from the empty Kit Kat wrapper, that was contained in the Culture Kings sports bag, revealed strong support for the proposition that the applicant was a major contributor to the DNA on that item.
Ms Heffernan gave evidence that 28 swabs had been taken from the Amarok. Twelve of those samples were submitted for analysis. The samples, that were taken from the seatbelts and the exterior of the Amarok, were not tested. The samples, which were tested, were from the following areas of the Amarok: the steering wheel (two DNA trace samples); the gear lever; the park brake; the front passenger interior grab handle; the driver’s door interior grab handle; the driver’s door interior lever handle; the rear driver’s door interior grab handle; the rear driver’s door entry lever handle; the rear passenger door interior grab handle; the rear passenger door interior lever handle; the front passenger door interior lever handle; and the front windscreen on the driver’s side (two DNA trace samples). In addition, a trace sample was taken from the ignition key. Analysis of the sample from the park brake revealed extremely strong support for the proposition that Rider and three unknown persons were the contributors to that sample. The applicant was not linked to any of the samples, taken from the Amarok, that were analysed by Ms Heffernan.
Jason Betts is a Security Analysis Analyst employed by Telstra Corporation Ltd (‘Telstra’). Mr Betts was engaged by police to provide metadata relevant to the case.
In particular, Mr Betts provided phone records for the applicant’s mobile telephone (0407 420 318) and for Rider’s mobile telephone (0472 578 473) for the period between 1 November 2019 and 15 November 2019. The applicant’s phone was registered in his own name to his address at Chirnside Park.
Examination of the call charge records relating to the applicant’s device (318) revealed that the applicant’s phone did not make any calls to another service between 8:30pm on 8 November 2019 and 11:00pm on 10 November 2019, and he did not send a text to another service between 8:30pm on 8 November 2019 and 5:28pm on 10 November 2019. Examination of the call charge records relating to Rider’s device (473) similarly revealed that his phone did not make any call, or send a text, to another service, between 8.38pm on 8 November and 10.21am on 9 November 2019. The applicant’s phone and Rider’s phone each remained connected to the Port Melbourne Bridge Street telecommunication tower throughout the night of 8 November 2019 and the morning of 9 November 2019. Mr Betts gave evidence that it was possible that the phones of the applicant and Rider, which both accessed that tower on that night, were sitting next to each other for the entire night.
At 8:54am on 9 November 2019, the applicant’s phone last connected to Port Melbourne Bridge Street tower. Over the following hour, it connected with Kings Way North, Bayswater, Wonga Park, Croydon and Ringwood North. It first connected to Chirnside Park at 3:40pm, and it last connected to the Chirnside Park Base Station at 3:52pm on that date. It then connected with a number of different base stations. The call charge records recorded that it connected again to the Port Melbourne Bridge Street base station at 6:31pm on 9 November, and remained connected to that base station until at least 7:16pm.
Mr Betts gave detailed evidence concerning the data sessions, relating to the applicant’s phone, as recorded by Telstra. He explained that a data session is when a mobile device connects to the Telstra network, in order to use the internet. He then proceeded to give examples of functions, which might create a data session in Telstra’s records. Those examples included if a person actively browses a website, actively uses a phone application (such as Facebook), or sends an MMS. Mr Betts then explained that a person does not have to be actively using the mobile device for the device to be accessing a mobile base station. He gave a number of examples about such processes. In particular, he explained that an application could be running in the background, without any human doing anything. One such example was the COVID Safe App, which provided end users with updates of when COVID cases were in their area. Another such example is WhatsApp. Mr Betts explained that, in fact, a device might have a number of different applications running concurrently at the same time, which may generate multiple data sessions.
Mr Betts explained that 16,200 seconds (which is the equivalent of 4½ hours) is the maximum duration of a data session in Telstra’s records. Once that point is reached, Telstra’s records start a new data session. Further, the records may fragment a single data event into multiple data sessions if the volume limit is reached, or if the service switches from 4G to 3G.
Mr Betts also explained that Telstra records do not state the mobile base station to which the mobile device is connected when the data session commences. The records state the last mobile base station that the device recognised on the network in a data session. If Telstra’s records show two 16,200-second data sessions, in which the second data session commences in the same second as the first data session ends, it is possible that they are in fact part of the one data event.
Mr Betts noted that, in the applicant’s records, there are only data sessions between 10:35pm on 8 November 2019 and 7:35am on 9 November 2019.
The Telstra records recorded 14 individual data sessions in respect of the applicant’s phone between 6:05pm on 8 November 2019 and 9:16am on 9 November 2019. Mr Betts explained that there are four possible real life explanations for the sequence of those data sessions, namely:
(1)The 14 individual data sessions were separate and distinct data events, which each occurred through human intervention. That would have required the user to close the current application and to open another application in the same second.
(2)The 14 individual data sessions were separate and distinct data events, which occurred without human use. That would require something on the phone using data without human intervention to close and for a completely different item to commence, without human intervention, in the same second.
(3)The 14 individual data sessions were separate and distinct data events, each of which were created from a combination of the first and second such possibilities.
(4)The 14 individual data sessions were actually part of one continuous data event, which commenced at 6:05pm on 8 November 2019, and which continued until 9:16am on 9 November 2019.
Mr Betts was unable to postulate which of those four possibilities accounted for the sequence of data sessions in the records. On the assumption that it was one single data event (that is, the fourth such possibility), Mr Betts gave explanations as to why that event might have fragmented into 14 different data sessions.
Mr Betts also noted that, in the records relating to Rider’s mobile phone, there were only data sessions recorded overnight from 8:38pm on 8 November 2019 to 10:21am on 9 November 2019. He confirmed that each of the data sessions in that period may have been created without any human intervention. Rider’s phone was also accessing the Port Melbourne Bridge Street tower during that period.
Some evidence was also given at the trial concerning a silver MacBook Pro laptop. Rhys Pearse, a friend of the applicant’s, gave evidence that he lived at the applicant’s premises in Chirnside Park in November 2019. The premises were leased by the applicant. Mr Pearse stated that he owned the silver MacBook Pro laptop, which he used both for personal use and also work. The laptop did not have a pass code, and it could be accessed without inputting a password.
On Friday 8 November 2019, at 8:35am, Mr Pearse flew from Melbourne to Hamilton Island, and did not return until Monday 11 November 2019. After his return, he then stayed for some time at premises in Black Rock. Mr Pearse could not recall if he had the laptop with him when he went to Hamilton Island, and he did not recall using it during that time. He said that there would have been no reason for him to Google, using search terms, ‘Melbourne breaking news shooting’, and, ‘Melbourne breaking news shooting Eastlink’ on Sunday 9 November.
In cross-examination, Mr Pearse said he might have heard of the shooting on 9November, and he might have conducted such a search, or his girlfriend might have conducted such a search. In re-examination, and when referred to the statement that he made to police, Mr Pearse said he first heard of the shooting on 10 November 2019, at about 11:00am or midday.
Joanne Bray, a Digital Forensic Officer based at Victoria Police, examined the silver MacBook Pro laptop in February 2020. She noted that, on 9 November 2019 at 5:00am, a Google search had been conducted on the laptop, using the terms, ‘Melbourne’ plus ‘breaking’ plus ‘news’ plus ‘shooting’.
Senior Constable Ryan Pitts, who was attached to the Homicide Squad, gave evidence that, in December 2019, he accessed the Instagram public page of the girlfriend of the applicant, Ms Lauren Musumeci. He identified a video, which depicted footage of the applicant wearing black shoes with a white rim.
Detective Senior Constable Kelly, who was also attached to the Homicide Squad, participated in the execution of a search warrant at the premises at which the applicant was then residing in Urana Street, Kilsyth. Senior Constable Kelly’s role was to video the arrest and the premises. He produced in evidence a photograph that he took of shoes in the garage of the premises, which was tendered in evidence. He also gave evidence as to the seizure of four pairs of Adidas shoes, each of which were also tendered.
The final witness for the prosecution was the informant, Detective Leading Senior Constable Stephen Eppingstall. Leading Senior Constable Eppingstall gave evidence that a Mercedes key was located in a section of the Burwood Highway in Upper Ferntree Gully. That key matched the lock on the burnt out Mercedes Benz vehicle, which had been stolen from Albert Park on 21 September.
Detective Leading Senior Constable Eppingstall gave evidence of note concerning the respective statures of the applicant and Rider. He stated that the applicant was recorded as being 170 centimetres in height and 91 kilograms in weight. Rider was recorded as being 177 centimetres in height and 82 kilograms in weight.
Detective Leading Senior Constable Eppingstall also gave evidence that, based on the information generated by WhereIs Maps, at the relevant time, it would have taken a vehicle eight minutes to travel from Rider’s address in Port Melbourne to the Burnley Tunnel, and it would have taken nine minutes for a vehicle to travel from the motorcycle club to Rider’s home address.
In cross-examination, Senior Constable Eppingstall agreed that the custody summary form in respect of the arrest of Rider and the applicant, recorded that Rider was 178 centimetres tall, and that the applicant was 175 centimetres tall. When pressed about that, Senior Constable Eppingstall said that the difference between those estimates, and the respective estimates of the heights of Rider and the applicant that he had given in evidence, was inconsequential, and that the applicant was just shorter than Rider, but not by much.

Summary of prosecution and defence cases at trial

As we have noted, the prosecution case at trial was essentially circumstantial. Before considering the submissions on this application, it is useful, first, to summarize how each party put their respective cases in final address to the jury.
In his address, senior counsel for the prosecution noted that the applicant and Rider were associates, and that they arrived at the motorcycle club within six minutes of each other on the evening of 8 November. Rider was wearing the Fluid Health hoodie he had bought earlier that evening, and the applicant was wearing a black Nike jumper with two-tone grey sleeves. The clothes that the applicant was wearing at the club, and particularly the Nike top, were in the Culture Kings bag, that was dropped by the second offender when the two occupants of the Amarok fled on interception by police. It was implausible that, after the applicant left the motorcycle club, he changed his clothing, and gave them to someone else, who was somehow responsible for them ending up in one of the two bags that was dropped by the second offender when fleeing the Amarok.
Counsel further noted that the applicant and Rider each left the motorcycle club at 10:25pm. Rider returned home by car to 22A Lalor Street at 10:32pm, and, a short time later, another person arrived on a motorbike at the premises next door. The applicant’s phone and Rider’s phone were both connected to the Port Melbourne Bridge Street base station overnight.
The prosecutor argued that the applicant was with Rider when the latter left the premises at 22A Lalor Street and drove through the Burnley Tunnel in the Amarok at 10:56pm. Like Rider, the applicant had also left his phone in Port Melbourne, in order to avoid detection. The most probable of the four possible explanations proffered by Betts in respect of the activity on the applicant’s phone overnight was that it was passive activity, not involving any active human intervention. In that respect, the prosecutor noted that there were no telephone calls or text messages sent by the applicant’s phone between 8:30pm on 8 November and late in the afternoon on 10 November.
Counsel then referred to the first CCTV sighting of the Amarok at 10:56pm, travelling outbound in the Burnley Tunnel. It was contended that there must have been two people in the Amarok at that stage. The first CCTV sighting of the Mercedes was at 11:28pm, when the Mercedes and the Amarok were captured on the Princes Highway and in Police Road, Springvale. They then made their way, in tandem, to Jaxlee Close, Mooroolbark. That location was not far from where the applicant lived in Chirnside Park.
The next relevant event, referred to by the prosecutor, was the return of the offenders to Jaxlee Close after the shooting, when they then set fire to the Mercedes vehicle and departed in the Amarok. One offender, in the dark, striped top, got into the driver’s seat of the Amarok, and the second offender, in the light top, got into the passenger seat. It was submitted that the comparative heights of the two offenders, as depicted on the footage at that point, were consistent with the evidence of the informant about the recorded heights of the applicant and Rider when they were arrested on 22 January 2020.
Counsel noted the evidence that officers Hunter and Chell sighted the Amarok at 3:11am on Burwood Highway, and gave pursuit. When the two offenders got out of the Amarok vehicle at the corner of Scoresby Road and Mountain Highway, Bayswater, the first offender jumped the fence immediately and ran off. However, the second offender ran along the fence for 20 metres, before dropping the bags and running away from Hunter, who, at that point, was ten metres from him. The prosecution contended that the second offender had taken the bags from the vehicle because he knew that the bags and their contents were inextricably linked to himself and his co-offender. If the Culture Kings bag and its contents did not belong to the offender, there was no reason for him to take it from the Amarok, because it would only slow him down. He only dropped the bags because he could not find an opening in the fence, and, accordingly, he had to climb over the fence.
The prosecution next relied on the movements of Rider after he returned home by taxi at 7:19am on 9 November. Rider went out again in his own vehicle at 7:32am and returned three minutes later. It was submitted that the evidence supported the hypothesis that, when Rider left his home at 7:32am, he did so in order to give the applicant’s phone back to the applicant. The movements of the applicant’s phone, after 8:54am on the morning of 9 November, were also consistent with the proposition that, when Rider went out from his home for three minutes at 7:32am, he did so to give the applicant’s phone to someone, who then delivered it to the applicant somewhere in the western suburbs.
The prosecutor also relied on the evidence of Officer Pitts about accessing the Instagram page of Lauren Musumeci on 12 December 2019, and downloading a number of videos, which contained stills depicting the applicant wearing dark shoes with white rims, which were similar to those worn by the second offender in Jaxlee Close after the shooting.
Finally, the prosecutor submitted that the fact that DNA matching the applicant’s DNA was not detected in the Amarok did not mean that he was not the second offender. The applicant might only have touched four of the 12 areas that were sampled. By comparison, there was no issue that Rider was driving the Amarok after it left Jaxlee Close, yet the only place his DNA was detected was on the handbrake. The prosecution relied on the evidence, by Dr Heffernan, that the fact that DNA matching a person of interest is not detected does not mean that that person did not touch the surface or object in question.
In response, counsel for the applicant submitted that the fact that the applicant and Rider were associates, and were at the motorcycle club together on the evening of 8 November, did not mean that the applicant was the second offender. Counsel also submitted that it was not open to the jury to conclude that the applicant, after leaving the motorcycle club on that evening, removed anything other than the black Nike top with two-tone sleeves, which was later recovered by police in the Culture Kings bag. The CCTV footage, from the motorcycle club, depicted the applicant wearing a cap when he departed from the club, but there was no cap worn by the applicant found in Jaxlee Close or in the Culture Kings bag, dropped by the second offender. Counsel submitted that it was a reasonable hypothesis that the applicant, after leaving the motorcycle club, removed his Nike top before putting on his motorcycle jacket, and that he gave the Nike top to some associate, who was then responsible for it ending up in the Amarok in the Culture Kings bag.

Defence counsel submitted that the fact that Rider and the applicant left the motorcycle club at the same time did not mean that they were interacting with each other in any relevant respect. Rider left the motorcycle club at 10:25pm and returned home by car to 22A Lalor Street, arriving there at 10:32pm. Counsel submitted that it was the applicant who arrived at the premises next to Rider’s house a short time later on his motorbike. The call charge records were consistent with the applicant’s phone being at Rider’s premises overnight.
Counsel further contended that the jury should reject the submission, by the prosecution, that when the Amarok was sighted by CCTV at the Burnley Tunnel at 10:56pm, there must have been two occupants in it. It was open to the jury to infer, as a possibility, that Rider had driven to Springvale alone, rendezvoused there with the second offender, and then driven to Jaxlee Close.
Counsel then referred to the evidence concerning a police attendance record in relation to the execution of the search warrants, that gave the applicant’s height at 175 centimetres, and Rider’s height at 178 centimetres. It was submitted that, although it is difficult to compare heights of offenders on CCTV footage, nevertheless, the second offender, depicted in the footage in Jaxlee Close, was appreciably shorter than the first offender.
Counsel noted that, when the Amarok was spotted by Hunter and Chell, it was city-bound on Burwood Highway, turning left into Ferntree Gully Road, heading towards Springvale. That evidence supported the case that the second offender was not the applicant, who was then residing in Chirnside Park. Further, it was submitted that the conduct of the second offender, taking with him and then dropping the bags after the Amarok had collided with the street sign in Bayswater, did not support the proposition that the second offender was the applicant. He might have taken the bags from the Amarok, not because the Culture Kings bag and its contents belonged to him, but because the first offender had told him to do so. Further, he might have dropped the bags because they were not important to him, as they did not implicate him in the murder of Mr Virgona.
Counsel then addressed the theory, put forward by the prosecution, that, after Rider returned home, he then left the premises for three minutes, in order to give the applicant’s telephone to someone, who could return it to the applicant. Counsel submitted that that theory was implausible, and it was more likely that Rider went out at that time to dispose of the weapon or the clothing he was wearing, which had been covered in gunshot residue.
Defence counsel submitted that the movements of the applicant’s phone on the morning of 9 November were consistent with no more than the applicant making his way home from Rider’s home, where he had ‘crashed’ overnight. Further, when the applicant was under surveillance from 10 November onwards, he was not observed doing anything untoward. He was living a normal life, which would have been unlikely if he had been involved in the offence. Further, the fact that the applicant wore dark shoes with white rims was of no moment, because many people in Melbourne would have similar footwear.
Finally, counsel submitted that the fact that the applicant’s DNA was not detected in the Amarok vehicle was significant. If the applicant was the second offender, it would be expected there would have been some DNA matching that of the applicant in the vehicle.

Application for leave to appeal — submissions

Counsel for the applicant submitted that, based on all the evidence adduced at the trial, the jury could not have excluded the reasonable possibility that some other person than the applicant was present and acting in concert with Rider at the point at which Rider shot and killed Virgona. In support of that proposition, counsel relied on a number of matters.
First, it was contended that there was no conclusive evidence as to the location of the applicant after he had left the motorcycle clubhouse at approximately 10:25pm. By contrast, Rider could be identified by his distinctive Fluid Health hoodie.
Secondly, it was noted that there was no forensic evidence, linking the applicant to the shooting, either by way of fingerprints, DNA, or gunshot residue. There was no link between the applicant and the Mercedes vehicle, nor between the applicant and the Amarok from which the fatal shots were discharged. By contrast, Rider’s DNA was located within the Amarok, and his clothing was ‘drenched’ in gunshot residue.
Thirdly, counsel submitted that the evidence, relating to the applicant’s phone, was neutral. In particular, Mr Betts was unable to specify whether, by reference to the data sessions, recorded on the phone, it could be concluded that the phone was being actively used by the applicant, or whether the data sessions were passive, at the material time. It was submitted that the phone evidence did not advance the prosecution case at all. Further, it was submitted, the evidence, relating to the applicant’s clothing, was entirely neutral. The prosecution had relied on images of the applicant from the Instagram account of the applicant’s partner, which depicted him wearing shoes similar to those seen worn by the second offender. However, there was nothing particularly distinctive about the shoes, beyond the fact that they were black with white soles. Such shoes are not uncommon.
Next, counsel for the applicant noted that there was no evidence where the second offender went after Virgona was shot. By comparison, Rider’s movements were retraced to Erin Horsington’s address in Wantirna South, from where he caught a taxi and arrived back home in Port Melbourne at about 7:20am. Counsel contended that the prosecution argument, that Rider then left his home for three minutes to give the applicant’s phone to another person, was a matter of pure speculation. There was no evidence of the location of the applicant after the shooting until the following evening, when he returned to Rider’s address in Port Melbourne. Given the prosecution case was that Rider and the applicant had taken great care not to have had detectable phone contact in the weeks leading to the shooting, it would be most unlikely that the applicant would have visited Rider the day after the shooting if he had been involved in the shooting.
It was submitted that the second offender in the CCTV footage did not match the applicant’s physical profile, either with respect to his height or build. It was submitted that the evidence demonstrated that the applicant was three centimetres shorter than Rider and was overweight. On the other hand, the second offender, as depicted in the Jaxlee Close footage, was considerably shorter than Rider, and he had an athletic build.
Finally, counsel submitted that, on analysis, the evidence, of the applicant’s clothing in the Culture Kings bag, was not sufficient to prove the applicant’s guilt. In particular, counsel submitted that the jury could not rationally exclude, as a reasonable possibility, the hypothesis contended for at the trial, namely, that after the applicant walked out of the motorcycle club, he removed his jumper, placed it into the Culture Kings bag with his other clothes, and handed that bag to an associate, who subsequently was responsible for it being inside the Amarok.
In those circumstances, it was submitted that the jury could not logically exclude the reasonable possibility that the second offender was someone other than the applicant.
In response, counsel for the respondent submitted that the prosecution case against the applicant was powerful, and that the available evidence inexorably led to the conclusion that the applicant was present in the Mercedes vehicle, with Rider, when the fatal shooting took place.
Counsel commenced by referring to the applicant’s relationship with Rider and the Mongols motorcycle club. Counsel noted that the applicant and Rider had known each other for more than two years, and they were both associated with the same club, which is a small group. Another member of the club, Giffening, had acquired the Amarok and prepositioned it in the Port Melbourne area on 7 November 2019. His girlfriend, Alicia Neylan, had earlier purchased a fuel container, that was found in the Amarok after the police pursuit. Counsel submitted that the evidence strongly suggested a link between the Mongols motorcycle club and the shooting.
Counsel then submitted that an important component of the prosecution circumstantial case against the applicant was the fact that the Culture Kings bag, containing the applicant’s clothing, was seized by police after the pursuit early in the morning of 9 November 2019. It was submitted that the significance of that evidence was substantially enhanced by four other points. First, there was extremely strong DNA evidence linking the applicant to the bag and to the items of clothing and the empty Kit Kat wrapper in the bag. Secondly, the evidence established that the shooting had been meticulously planned and well thought out. It was thus open to the jury to conclude that the offenders had intended to change into the clothing in the bags, after they had reached their final destination in the Amarok. Thirdly, counsel noted that the applicant was depicted wearing the distinctive Nike-branded jumper when he left the clubhouse with Rider late on 8 November 2019. The applicant left the clubhouse at 10:25pm, and the Amarok passed the Citylink Burnley Tunnel at 10:56pm. That left only 23 minutes for the applicant to remove his Nike jumper, put it into the Culture Kings bag, and for the bag to find its way into the Amarok.
Fourthly, counsel submitted that the circumstances, in which the second offender dropped the bags after fleeing the Amarok, were very significant. The driver of the Amarok sprinted to the fence, and used two hands to climb over it. On the other hand, the second offender risked being apprehended by police, by taking two bulky bags of clothing with him, and running alongside the fence. With Senior Constable Hunter chasing close behind him, he then decided to drop the bags and climb over the fence, in the same way that the driver had done. It was submitted that a strong inference could be drawn, from the second offender’s actions, that he knew he could be connected to the bags and their contents if he had left them behind, and that he only abandoned them, when he needed to do so in order to escape from the police.
Counsel further submitted that, contrary to the applicant’s contention, the call charge records of both the applicant and Rider were very damaging. The applicant’s call charge records show that his phone received 11 short calls between 7:38am and 3:50pm on 9 November 2019. Six of those calls had a duration of either zero seconds, or one second. The other five calls were followed by a text message. It was clearly open to the jury to find that the 11 short incoming calls were all missed calls. Based on that evidence, it was open to the jury to infer that the applicant was not with his phone when those calls were made. That inference was strengthened by the fact that the applicant’s phone was not used during that time to make a single phone call, or send a single text message.
It was further submitted that the fact that the applicant’s phone accessed the Port Melbourne base station overnight from 8 November to 9 November 2019 was highly probative. The applicant lived in Chirnside Park. He clearly did not go home after leaving the clubhouse. Rider lived very close to the Port Melbourne base station. The records for his phone showed that it also accessed the same base station overnight, notwithstanding that it was accepted, at the trial, that Rider was one of the two offenders.
It was further submitted that the two consecutive sequences of data sessions indicated strongly that the applicant was not actively using his phone overnight from 8 November to 9 November 2019. It was submitted that, of the four possible explanations, given by Betts, for the sequence of 14 consecutive data sessions, the final possibility — that they were part of one continuous data event — was the only rational explanation for the sequence of those sessions. Accordingly, it was submitted that the evidence demonstrated that the applicant’s phone was not being actively used by him overnight from 8 November to 9 November 2019. In that context, it was noted that Rider’s phone was also in connection with the Port Melbourne base station during that period and it performed similarly to the applicant’s phone in the sense that there were two perfectly aligned sequences of data sessions. Yet it was accepted that Rider was elsewhere during that period and he did not have his phone with him. As a consequence, the inference, that the applicant and Rider had left both their phones in Port Melbourne while they drove away in the Amarok to commit the offending, was irresistible.
Counsel then turned to the submissions, advanced on behalf of the applicant. In respect of the submission, that the second offender, in the Jaxlee Close footage, did not match the applicant’s physical appearance, counsel noted that the evidence, about the respective heights of the applicant and Rider, was inconsistent. Further, the Jaxlee Close footage had been obtained from a CCTV camera that was situated in an elevated position, some distance from the offenders, and which, thus, did not permit a meaningful comparison to be made between the respective heights of the two offenders. Nor was it possible, from the footage, to make a proper assessment of the build of the second offender.
Counsel further submitted that the absence of any forensic evidence, linking the applicant to the Amarok, was not of any significance. The available evidence strongly supported the proposition, that Rider drove that vehicle, both before and after the shooting. Although police took DNA trace samples from 25 different areas on the outside and inside of the Amarok, a person who was seated in the front passenger seat of it would, in all likelihood, have only come into contact with four of those areas. Further, not all of the samples that were taken by police were tested for DNA. There was evidence, that there are various reasons why a person’s DNA might not be detected on surfaces touched by that person. As an illustration of that point, Rider, who was the driver of the Amarok, must have touched up to nine areas from which DNA trace samples were taken, but only one of those samples was linked to him.
Finally, counsel submitted that the alternative hypothesis, proffered on behalf of the applicant at trial, was highly implausible. That hypothesis was that, after the applicant had left the clubhouse, but before departing the car-park, the applicant had removed his Nike jumper and put it into his Culture Kings bag, which also contained his pants and runners, and then given his bag to an unknown associate for no apparent reason. Within 23 minutes, the Culture Kings bag then ended up in the Amarok. The applicant’s hypothesis was, further, that he and Rider then went inside Rider’s home, after which Rider departed, to commit the murder with another offender. It was submitted that that hypothesis was highly implausible. In particular, the applicant placed himself together with Rider, after they had left the clubhouse, and no more than 16 minutes before the Amarok must have departed from the Port Melbourne area, with his bag and clothes inside it. In those circumstances, it was open to the jury to exclude the applicant’s alternative hypothesis, that he had remained at Rider’s home in Lalor Court, and not left with Rider in the Amarok.

Analysis and conclusion

The ground of appeal, relied on by the applicant, is based on s 276(1)(a) of the Criminal Procedure Act 2009, which provides that a court should allow an appeal against conviction, if it is satisfied that ‘the verdict of the jury is unreasonable or cannot be supported having regard to the evidence’. In order to succeed on the ground, the applicant must establish that it was not open to the jury to be satisfied, beyond reasonable doubt, of his guilt on the charge that was before it.[1]
[1]M v The Queen (1994) 181 CLR 487, 492–3 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63; SKA v The Queen (2011) 243 CLR 400, 405–6 [11]–[14] (French CJ, Gummow and Kiefel JJ); [2011] HCA 13; Pell v The Queen (2020) 268 CLR 123, 147 [45]–[46] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 12.
In the present case, the prosecution case was essentially based on circumstantial evidence. In order that the jury be satisfied, beyond reasonable doubt, of the guilt of the applicant, it was necessary that the jury be satisfied that that was the only rational inference that the circumstances would enable it to draw.[2]
[2]Plomp v The Queen (1963) 110 CLR 234, 252 (Menzies J); [1963] HCA 44; R v Baden-Clay (2016) 258 CLR 308, 323–4 [46]–[47] (French CJ, Kiefel, Bell, Keane and Gordon JJ); [2016] HCA 35.
Thus, on this application for leave to appeal, the critical issue is whether it was open to the jury to conclude that the only reasonable hypothesis, available on the evidence, was that, at the time of the murder of Mr Virgona, the applicant was physically present with Rider, and acting in concert with him in committing that offence.[3] In particular, the question is whether it was open to the jury to rationally exclude the hypothesis, relied on by the applicant, that some other person than he was present and acting with Rider at the time of the murder of Mr Virgona.
[3]Coughlan v The Queen (2020) 267 CLR 654, 674–5 [55] (Kiefel CJ, Bell, Gageler, Keane and Edelman JJ); [2020] HCA 15.
In considering that question, it is necessary to take into account the united and combined force of the evidence, relied on by the prosecution in support of the guilt of the applicant.[4]
[4]R v Van Beelen (1973) 4 SASR 353, 373 (Bray CJ, Mitchell and Zelling JJ); R v Chamberlain [No 2] (1984) 153 CLR 521, 535 (Gibbs CJ and Mason J); [1984] HCA 7; R v Hillier (2007) 228 CLR 618, 638 (Gummow, Hayne and Crennan JJ); [2007] HCA 13.
The principal, but not sole, point relied on by the prosecution, both at trial and on this application, focused on the conduct of the co-offender who was with Rider at the time at which the Amarok was intercepted, at the intersection of Scoresby Road and Mountain Highway in Bayswater. In that respect, it was significant that, when Rider exited the Amarok, he immediately ran straight to the wire fence, jumped it using both his arms, and ran into the park, which provided cover for him. Relevantly, the co-offender did not do likewise. Rather, he exited the vehicle, carrying both bags, each of which had a number of clothing items in them. One of the bags contained Rider’s clothing. It is understandable that his co-offender might have chosen to take that bag with him, as the contents of it would have implicated Rider, with potentially disastrous consequences for the co-offender. However, unless the contents of the second bag (the Culture Kings bag) contained items that would connect the bag to himself, there was no logical or rational reason why the co-offender chose to also carry it with him.
The intention of the co-offender — to ensure that both bags did not fall into the hands of the police — was evidenced by the fact that he then ran along the fence-line, while being chased by police. He only chose to abandon the bags when Leading Senior Constable Hunter pursued him at a close distance, at which point the co-offender abandoned the two bags, and, using both arms, jumped the fence. The manner in which both Rider and the co-offender jumped the fence, using both arms to do so, supported the conclusion that the co-offender was aware that he could not have got over the fence whilst still carrying the two bags. That combination of circumstances strongly supported the inference that the co-offender knew that the contents of the second bag would implicate himself in the murder of Mr Virgona if the bag came into the hands of the police.

The foregoing evidence did not stand alone in the trial. In particular, the context in which the events of the evening unfolded was particularly relevant.
It was quite evident that the murder of Mr Virgona was well planned and highly organised. In the preceding two months, two stolen vehicles were obtained, in order to effect the crime. One of the vehicles — the Amarok — was subsequently, on 7 November positioned near Rider’s home. On the evening of 8 November it was then positioned as a getaway vehicle in Jaxlee Court. The numberplates on each of the two vehicles were changed, and cloned plates substituted for them. The two offenders left in the Amarok a spare set of clothing for each of them, into which they clearly intended to change, so that they were not apprehended or intercepted wearing clothing which might have gunshot residue attached to it.
It was in that context that Rider and the applicant each attended the motorcycle club on the evening of 8 November within six minutes of each other. It is also to be noted that Giffening, who had been responsible for obtaining the stolen Amarok vehicle and placing it in Port Melbourne on 7 November, attended the club at the same time as Rider. Three hours later, Rider and the applicant both walked out of the club at the same time. The applicant was wearing the distinctive black Nike jumper with the two-tone grey sleeves, which was later to be found in the Culture Kings bag, together with other clothing belonging to him.
It is also apparent that the two men did not then part ways. Rather, Rider drove his vehicle to his home. It was common ground that it was the applicant who also arrived shortly afterwards on a motorbike at premises next door to Rider’s home. That is, the applicant effectively accompanied Rider to the latter’s home shortly before the time at which Rider intended to depart from it in order to commit a serious pre-planned murder. That circumstance, of itself, weighed heavily against the hypothesis, relied on by the defence at the trial, that the applicant simply attended at Rider’s home so that he could remain there and have a rest.
Significantly, in that context, during that night, the telephones of both Rider and the applicant remained in the Port Melbourne area. Neither of those phones made any telephone call or sent a text during the critical period. It is evident that Rider left his phone at his home in order to avoid detection in the murder that he was planning to commit. In those circumstances, it was significant that, as was the case with Rider’s phone, the applicant’s phone was not actively used by him (or anyone else) after 8:30pm on 8 November 2019 until some two days later.
The next, and important, piece of evidence in the prosecution case was the circumstance that the Culture Kings bag, containing the applicant’s clothing (including his Nike jumper), was in the Amarok at the time that it was intercepted in Bayswater. The Amarok vehicle was recorded at the Burnley Tunnel on Citylink, travelling outbound, at 10:56pm on 8 November. The evidence of Detective Leading Senior Constable Eppingstall was that, at the time in question, it would have taken a vehicle eight minutes to travel from Rider’s address in Port Melbourne to the Burnley Tunnel. Thus, the Amarok must have departed from Rider’s home no later than 10:48pm. In those circumstances, there was, at most, a particularly limited time in which the applicant could have removed his Nike jumper, placed it into the Culture Kings bag, and for that bag to have found its way into the Amarok.
Further, as we have earlier discussed, there was no explanation, consistent with the applicant’s innocence, as to how or why the Culture Kings bag, containing the applicant’s clothing, came to be inside the Amarok. The vehicle was stolen. It was intended to be used for the purpose of committing a murder. If, as the defence maintained, the applicant spent the evening at Rider’s home, there was no reason why he, or anyone else, would have placed, or caused to be placed, the Culture Kings bag inside the Amarok. The only rational inference, arising for the presence of that bag in the Amarok (and its removal from it at the time the police intercepted it in Bayswater) was that the clothing was intended to be used by Rider’s co-offender, after the commission of the murder of Mr Virgona.
In summary, then, the evidence established the following facts. The murder of Mr Virgona was well planned and organised. The applicant and Rider each attended the motorcycle club within a few minutes of each other, and left the club at the same time, on the night of the murder. They both then proceeded, in different vehicles, to Rider’s home. Their telephones remained connected to the Port Melbourne base station throughout the night. Neither telephone was used for the purpose of making a telephone call or sending a text message, during the whole night. After Rider left his home, he accessed the Amarok vehicle, and drove in it, ultimately attending the location in Jaxlee Close, Mooroolbark, where the vehicle rendezvoused with the Mercedes Benz. At some time after the applicant left the club at 10.25pm, the Culture Kings bag, containing his clothing, was placed in the Amarok.
After the commission of the murder, and after the Mercedes Benz, from which the murder was committed, re-attended at Jaxlee Court, two men alighted from the Mercedes, and entered the Amarok. When the vehicle was subsequently intercepted by police, the two men fled. Rider jumped the fence, and his co-offender took the trouble to take with him two bags of clothing, one of which was the applicant’s. There was no rational explanation why, in the exigency of the circumstances in which he was being pursued by police, Rider’s co-offender would have taken that bag with him, unless he perceived it would have somehow implicated him in the murder of Mr Virgona. He only abandoned the bag when the need for him to avoid arrest compelled him to do so.
In combination, those circumstances constituted a powerful prosecution case in support of the conclusion that it was the applicant who, on exiting the Amarok, took with him not only Rider’s bag, but his own bag when pursued by police, and that it was the applicant who was the second offender with Rider. In the absence of any cogent countervailing considerations, they were plainly a sufficient basis for the conclusion by the jury that the only rational inference, based on the evidence, was that the applicant was the co-offender with the Rider when the Amarok vehicle was intercepted by police in Bayswater.
We turn then to the matters that were relied on by the applicant in this application.
At the trial, and on this application, counsel for the applicant contended that there was a material difference between the relative heights and builds of the two offenders, depicted in the CCTV footage at Jaxlee Court, and the relative heights and build of the applicant and Rider.
As we have noted, in the course of the trial, the evidence concerning the applicant’s height was subject to some variation. However, it would seem settled that the applicant’s height was 175 centimetres, and Rider was 178 centimetres. The applicant’s counsel submitted that the CCTV footage at Jaxlee Court demonstrated a significantly greater difference in the heights and builds of Rider and his co-offender.
As senior counsel for the respondent has pointed out, the footage was taken from an elevated position some distance from the offenders. The jury would have been well justified in considering that, based on the footage, it could not have reached any meaningful conclusion concerning the comparison of the height and build of Rider and the co-offender respectively. Accordingly, that aspect of the evidence was of little assistance to the defence case.
On this application, counsel submitted that it was significant that Rider’s clothing was ‘drenched’ in gunshot residue, but no gunshot residue was identified on the clothing contained in the Culture Kings bag. However, as counsel for the respondent noted, that proposition was based on an incorrect factual basis. Ms Condon did not detect any gunshot residue in the samples taken from the Coles plastic bag, and from the black Nokkon-branded hooded jumper, which read ‘Fluid Health’.
Counsel for the applicant also noted that there was no DNA evidence linking the applicant to the Amarok or otherwise to the shooting. By contrast, Rider’s DNA was located within the Amarok.
That point was, at most, of limited value to the defence. It was apparent that Rider was the person who drove the Amarok. Swab samples were taken from the steering wheel, the gear lever, the park brake, the driver’s door interior grab handle, and the driver’s door interior lever handle. However, the only sample, which contained DNA consistent with that of Rider, was the sample taken from the park brake. Dr Heffernan only examined four swabs that were taken from the front passenger side of the vehicle. Dr Heffernan gave evidence that the fact that DNA matching a person of interest is not detected does not necessarily mean that that person did not touch the surface or object that was tested.
At trial, counsel for the applicant also relied on the evidence of Mr Betts, that the Telstra records recorded 14 individual data sessions in respect of the applicant’s phone between 6:05pm on 8 November and 9:16am on 9 November 2019. Counsel noted that two of those explanations involved human intervention, that is, some person actively using the applicant’s phone during that period.
However, as counsel for the respondent noted, those explanations of the data sessions were extremely improbable. In essence, they would have involved, on 13 occasions during the period in question, a person using the phone so as to create one event, and then immediately, in the same second, using it again. Thus, the fourth possible explanation, proffered by Mr Betts, was the most probable, and, indeed, the only one which was feasible, namely, that the 14 data sessions all constituted part of the one data event, which commenced at 6:05pm on 8 November and concluded at 9:16am on 9 November. As counsel noted, there were a number of possible explanations for that data event to have been ‘fragmented’ into 14 sessions, including, for example, that the computer was passively downloading a large document, which was in excess of the volume limit of the computer. Another explanation, proffered by the respondent, was that the mobile device might have been ‘handed over’ between 3G and 4G.
Further, as has already been noted, the improbability of the explanations, relied on by the applicant, was enhanced by the fact that, in terms of internet access evidenced by the recorded data sessions, Rider’s phone performed in much the same manner as the applicant’s phone, in circumstances in which Rider could not have accessed his phone, as he had left it in his home in Lalor Street Port Melbourne.
Thus, taken together, the matters thus relied on by the applicant could not rationally detract from the cogency of the prosecution case presented against the applicant. For the reasons that we have discussed, it was well open to the jury to conclude that the only reasonable inference, based on the evidence in the case, was that, at the time of the murder of Mr Virgona, the applicant was physically present with Rider, and acting in concert with him in committing that criminal offence. It follows that the applicant has failed to demonstrate that the verdict of the jury was unreasonable, or could not be supported, having regard to the evidence.
In view of the seriousness of the case, the circumstance that the applicant was not substantially out of time in commencing the application for leave to appeal, and the explanation for the delay, it is appropriate, in the circumstances of this case, that the applicant be granted an extension of time within which to commence the application for leave to appeal. However, for the reasons that we have outlined, the application for leave to appeal must be refused.

[2025] VSCA 21

3 March 2025