R v An; R v LM

[2022] NSWSC 776

Supreme Court

New South Wales

Medium Neutral Citation:

R v AN; R v LM [2022] NSWSC 776

Hearing dates:

9, 10, 11, 12, 13 and 16 May 2022

Decision date:

16 June 2022

Jurisdiction:

Common Law

Before:

Walton J

Decision:

AN

(1) The accused AN is convicted of the offence charged under s 86(3) of the Crimes Act 1900 (NSW).

(2) I find the accused AN not guilty of murder.

(3) The proceedings are stood over for sentencing at a date to be fixed.

LM

(1) The accused LM is convicted of the offence charged under s 86(3) of the Crimes Act 1900 (NSW).

(2) I find the accused LM not guilty of murder.

(3) The proceedings are stood over for sentencing at a date to be fixed.

Catchwords:

CRIMINAL LAW – charge of murder – judge alone trial – relevant principles and directions - causation – expert opinion – concurrent evidence – areas of disagreement in concurrent evidence – nature and extent of injuries – axonal injury and survival time – airway obstruction – positional and restraint asphyxia – interpretation of petechiae – role of methamphetamine – deliberations – acquittal on murder charge – conviction on s 86(3) charge

Legislation Cited:

Crimes Act 1900 (NSW) s 86(3)

Criminal Procedure Act 1986 (NSW) ss 132, 133 275C,

Evidence Act 1995 (Cth) s 191

Cases Cited:

AK v Western Australia (2018) 232 CLR 438; [2018] HCA 8

Batcheldor v R (2014) A Crim R 461; [2014] NSWCCA 252

Campbell v The Queen (1980) 2 A Crim R 157; [1981] WAR 286

Chamberlain v The Queen (1983) 153 CLR 514; [1983] HCA 13

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

Dansie v The Queen [2020] SASCFC 103

Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68

Nguyen v R (2007) 173 A Crim R 557; [2007] NSWCCA 249

R v AN; R v LM [2021] NSWSC 1657

R v Anderson (2000) 1 VR 1; [2000] VSCA 16

R v Moffatt (2002) 112 A Crim R 201; [2000] NSWCCA 174

R v Shoesmith [2011] QCA 352

R v Sodo (1975) 61 Cr App R 131

Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27

Spiteri-Ahern v R [2022] NSWCCA 56

Swan v The Queen (2020) 269 CLR 663; [2020] HCA 11

Ussher-Clarke v R [2018] NSWCCA 61

Velevski v R (2002) 187 ALR 233; [2002] HCA 4

Walsh v R [2012] NSWSC 1399

Texts Cited:

New South Wales, Legislative Council, Parliamentary Debates (Hansard), 24 October 2018

Category:

Sentence

Parties:

Regina
AN (Defendant 2020/47670)
LM (Defendant 2020/47688)

Representation:

Counsel:
N Keay (Crown)
C Steirn SC (AN)
C Davenport SC (LM)

Solicitors:
Office of Director of Public Prosecutions (Crown)
Boom Lawyers (AN)
Kennedy & Cooke Lawyers (LM)

File Number(s):

2020/47670; 2020/47688

Judgment

1. On Saturday 1 and Sunday 2 February 2020, AN used the social networking application Grindr to engage in messaging with Peter Keeley (“the deceased”) and thereby lured the deceased from Canberra, ACT, to Broulee on the NSW south coast, with the promise of a sexual encounter.

2. The Grindr chat, including the arrangement to meet in Broulee, continued throughout the night on Saturday 1 February and into Sunday 2 February 2020.

3. Shortly before 3.00am on Sunday 2 February 2020, the deceased left the apartment in Canberra that he was temporarily residing in. Later that morning, the precise time being unknown, he commenced his journey to Broulee. At approximately 9.30am, the deceased arrived at Braidwood where he stopped for some time.

4. The deceased then travelled from Braidwood to Batemans Bay (approximately a 50-minute drive). At 12.46pm he messaged AN, “I’m in the bay now I’ll be about 10 minutes before I leave”. There were no further messages sent by the deceased to AN until 2.30pm. In the meantime, the deceased communicated with a friend in Canberra about borrowing some money to book a motel. Whilst the deceased was in Batemans Bay making these arrangements, AN continued to send the deceased Grindr messages to ascertain his whereabouts between about 12.49pm and 2.25pm.

5. Meanwhile, at 12.35pm, the co-accused, WD, sent a text to LM, asking him whether he wanted to “pop by for a training session”. A short time later LM went to WD’s house at a location at Massey Street, Broulee (“WD’s home”). After the deceased sent the message to AN at 12.46pm saying he was “in the bay” and would “be about 10 minutes”, AN replied at 12.49pm saying, “Okay cool”. At 1.02pm, AN performed an internet search for “Does holding a metal object in your hand make a difference to your punch”. At 1.04pm, AN again called WD on his mobile phone. AN then went to join LM and WD at WD’s home. Collectively, AN and LM shall be referred to collectively as “the accused” and WD shall be referred to as “the co-accused,” or “WD”.

6. At some stage during these interactions, AN, LM and WD discussed a plan for the three of them to tie up (that is, to detain) and “bash” (that is, to inflict actual bodily harm to) the deceased along a powerline easement south of the Broulee township.

7. The three accused discussed meeting at the third or fourth power pole along the powerline easement. AN was to meet with the deceased at the Imlay Street tennis courts and bring him down to the third or fourth power pole along the easement. There, LM and WD would join AN in carrying out the agreed enterprise.

8. After some further exchanges on Grindr, AN and the deceased met and travelled together in the deceased’s car, a Honda Jazz (“the deceased’s car”) from their meeting at the tennis courts in Imlay Street, to a location on the powerline easement running off Grant Street, Broulee near the third or fourth power pole from the Grant Street end: a location approximately 300m Southwest from the Grant Street intersection and approximately 220m Northwest of the fire trail intersection (“the crime scene”).

9. Between about 2.34pm and 2.53pm, AN, LN and WD were seen at Massey Street. Slightly after 3pm, LM and WD walked from that location to the area of the fourth power pole on the powerline easement, in the bush off to the side.

10. The deceased and AN arrived at the crime scene at 3.33pm, in the deceased’s car. LM and WD left their location in the bush off to the side of the easement around the fourth power pole and joined AN at the crime scene where together, the three accused detained the deceased, tied his wrists and ankles, taped his “head/face/mouth” with brown coloured packaging tape, and inflicted actual bodily harm upon him.

11. The three accused then departed the crime scene and returned to WD’s home via the bush and the beach.

12. It was common ground that the time of death was between 3.33pm and 4.45pm on 2 February 2020; the later time being when Mr Marc Devlin found the deceased.

13. An autopsy report was prepared by Dr Bernard I’Ons (“Dr I’Ons”) dated 4 May 2020 (“the Autopsy Report”). As an overview, it may be noted that he determined at autopsy that the deceased sustained multiple and significant blunt force craniofacial injuries, including widespread abrasions, contusions, lacerations, and a fractured nose. The distribution indicated multiple blunt force injuries to the sides of the head, forehead, cheeks, nose, mouth, eyes, and left ear. There were horizontal lacerations below each eye associated with contusions and longitudinal scrape abrasions on the forehead which were also present on the left shoulder and left knee.

14. Dr I’Ons found the cause of death to be craniofacial trauma with airway obstruction. That conclusion is contested by the accused and is a pivotal issue in this trial.

The Criminal Proceedings

15. On 9 May 2022, AN and LM were each arraigned with respect to two charges contained in an amended indictment.

16. Count 1 on the amended indictment charged each accused with an offence under s 86(3) of the Crimes Act 1900 (NSW) (“the Act”). The charge on the amended indictment was that AN and LM did, on 2 February 2020, detain the deceased without his consent and with intention of committing a serious indictable offence, namely, assault occasioning actual bodily harm, in circumstances of special aggravation, namely, AN, LM and WD, were in company of each other and, at the time of the detention, actual bodily harm was occasioned to the deceased (“the foundational offence”).

17. AN and LM pleaded guilty to this foundational offence. Senior Counsel for the accused accepted that they had participated in a joint criminal enterprise to detain the deceased and inflict actual bodily harm on him while he was detained, whilst in the company of each other and the co-accused.

18. AN and LM were also charged, by, count 2 on the amended indictment, with the charge of murder. They each pleaded not guilty to this charge.

19. The accused made an application for an order that they be tried jointly by a judge-alone, pursuant s 132(1) of the Criminal Procedure Act 1986 (NSW) (“the Criminal Procedure Act”), which application was opposed by the Crown. On 16 December 2021, this Court ruled in favour of the application and, in the result, the trial before the Court proceeded as a judge-alone trial: R v AN; R v LM [2021] NSWSC 1657.

20. The trials of AN and LM were conducted together as a matter of convenience. Nonetheless, as a matter of principle, each case for the accused must be considered separately and based on the evidence admissible in his case.

21. A central issue in the trial was whether the Crown has proven beyond reasonable doubt that the deceased died from a combination of craniofacial trauma with airways obstruction. A further consideration was whether the Crown had excluded as a reasonable possibility that the deceased died from methamphetamine toxicity. The Court was required to consider whether the prosecution had proved beyond reasonable doubt that the acts of the accused, were a substantial and significant cause of the death: Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27 (“Royall”) at 411– 412.

22. The Crown tendered in the proceedings a Statement of Agreed Facts executed by the accused, the legal representatives of the accused, and the Crown (“the Agreed Facts”), which, in my view, conformed with the requirements of s 191 of the Evidence Act 1995 (NSW) (“the Evidence Act”).

23. The Agreed Facts contained reference to a number of documents in a folder which were tendered in the Crown Case without objection (Folder 1) and which became Exhibit 4 in the trial. Exhibit 4 consisted of 26 Tender Files with 8 of those Tender Files being located on an accompanying USB. The Tender documents in Exhibit 4 consisted of various documents including SIX Maps images, photographs of AN and a transcript as an aide memoire to LM’s ERISP.

24. The following police statements were also tendered as part of Exhibit 4:

1. Statement of Detective Senior Sergeant Gregory Moon, dated 16 July 2020, with selected annexed crime scene photographs (22 to 25) (“Detective Senior Sergeant Moon’s First Statement”).These photographs showed Markers Q and R which also appeared in Tab 13 of Exhibit 5. The photographs also included Marker S;

2. Statement of Detective Senior Sergeant Moon dated 30 May 2021, with selective annexed crime scene photographs (34 to 38, 40 to 41 and 48 to 52, showing Markers F and H) (“Detective Senior Sergeant Moon’s Second Statement”);

3. Statement of Senior Constable Tania Cajna, dated 7 July 2020, with Annexure A and selective annexed crime scene photographs (33, 34, 39, 45 and 51 to 53) (“Senior Constable Cajna’s Statement”); and

4. The possible routes taken by the accused shown using SIX Maps.

25. On the USB in Exhibit 4, there were seven videos which consisted of body worn video, as well as forensic imaging reconstructions. There was also the following:

1. A Forensic Imaging Reconstruction video of the deceased’s car travelling in Broulee;

2. A walkthrough video with Mr Kenneth Norman Chapman, 6 February 2020;

3. A Forensic Imaging Reconstruction video of the walks in Broulee;

4. The video recording on Mr Devlin’s phone;

5. An edited body worn video (“BWV”) of Senior Constable Nathan Harries;

6. The edited BWV of the arrest of AN and LM and the transcripts of these arrests; and

7. The edited video of LM’s ERISP and transcript.

26. The Crown also tendered an additional folder which was tendered as Exhibit 5 in the proceedings. That folder included:

1. The Autopsy Report;

2. The Autopsy Report Photos by Dr I’Ons (“Autopsy Photos”);

3. A witness Statement by Chantelle Walsh, a friend of the deceased, dated 4 March 2020. (“Walsh Statement”);

4. Drug Analysis Certificates, dated 31 August and 22 September 2020.

27. Exhibit 5 also contained the expert reports relied upon by the Crown and the accused, to which I shall now turn.

28. The Crown relied upon the evidence of Dr I’Ons and Dr Olaf H Drummer AO (“Dr Drummer”). The following reports were tendered by the Crown without objection:

1. Report by Dr Drummer dated 29 July 2021 (“Dr Drummer Report”);

2. Report by Dr I’Ons in response to Professor Johan Duflou (“Professor Duflou”), dated 2 August 2021 (“Dr I’Ons Report”); and

3. Toxicology Report of Dr I’Ons in response to Dr Drummer dated 2 August 2021 (“Dr I’Ons Toxicology Report”).

29. The Crown also separately tendered the Neuropathology Report by Associate Professor Michael Buckland, dated 9 December 2021 (“Associate Professor Buckland Report”).

30. AN tendered the reports of Professor Duflou and Professor Iain McGregor as follows:

1. Report by Professor Duflou, dated 30 May 2021 (“Professor Duflou Report”);

2. Supplementary Report of Professor Duflou, 13 April 2022 (“Professor Duflou Supplementary Report”);

3. Further Supplementary Expert Opinion by Professor Duflou, 5 May 2022 (“Professor Duflou Supplementary Opinion”). Two medical scientific research papers accompanied this opinion. They were:

1. T Hortobágyi, S Wise, N Hunt, N Cary, V Djurovich, A Fegan-Eael, K Shorrock, D Rouse and S Al-Sarraj, ‘Traumatic axonal damage in the brain can be detected using β-APP immunohistochemistry within 35 min after head injury to human adults’ (2007) 33 Neuropathology and Applied Neurobiology 226 (“Hortobágyi Paper”); and

2. C Gorrie, S Oakes, J Duflou, P Blumbergs and P Waite, ‘Axonal Injury in Children after Motor Vehicle Crashes: Extent, Distribution and Size of Axonal Swellings Using β-APP Immunohistochemistry’ (2002) 19(10) Journal of Neurotrauma 1171 (“Gorrie Paper”);

4. Third Supplementary Expert Opinion – AN Death of Peter Keeley of Professor Duflou (“Third Supplementary Report”); and

5. Report by Professor McGregor, dated 28 June 2021 (“Professor McGregor Report”).

31. During the trial the following medical papers were tendered by AN:

1. B Logan, C Filgner and T Haddix, ‘Cause and Manner of Death in Fatalities Involving Methamphetamine’ (1998) 43(1) Journal of Forensic Science 28 (“Logan Paper”);

2. S Darke, J Duflou, J Lapping and S Kaye, ‘Clinical and Autopsy Characteristics of Fatal Methamphetamine Toxicity in Australia’ (2018) 63(5) Journal of Forensic Science 1466 (“Darke Paper”);

3. P Dominic, J Ahmed, H Awwab, B Shenvarin, C Kevil, N Goeders, S Murnane, J Patterson, K Sandau, R Gopinathanniar, B Olshansky, ‘Stimulant Drugs of Abuse and Cardiac Arrhythmias’ (2022) 15(1) Circulation: Arrhythmia and Electrophysiology 71 (“Dominic Paper”);

4. C Kevil, N Goeders, M Woolard, S Bhulyan, P Dominic, G Kolluru, C Arnold, J Traylor, A Wayne, ‘Methamphetamine Use and Cardiovascular Disease: In Search of Answers’ (2019) 39 Arteriosclerosis, Thrombosis, and Vascular Biology 1739 (“Kevil Paper”); and

5. D Dawes, S Ho, J Cole, R Reardon, E Lundin, K Terwey, D Falvey, J Milne, ‘Effect of an Electronic Control Device Exposure on a Methamphetamine-intoxicated Animal Model’ (2010) 17(4) Academic Emergency Medicine 436 (“Dawes Paper”).

32. The Court also received the following paper: S Al-Sarraj, C Troakes and G Rutty, ‘Axonal injury is detected by βAPP Immunohistochemistry in Rapid Death from Head Injury following Road Traffic Collision (2022) International Journal of Legal Medicine (“Al-Sarraj Paper”).

33. An issue was raised by the accused as to the weight that should be given to Dr I’Ons’ evidence where his opinion differed from Professor Duflou given, it was submitted, the superior qualifications and experience of Professor Duflou.

34. Mr C Steirn SC, who appeared for AN, submitted that:

With no disrespect intended to Dr I’Ons, if one compares Dr I’Ons’ CV, Exhibit 6 your Honour, Dr I’Ons has been a forensic pathologist since 2016 which is less than six years. He has not published any papers, nor has he done any research into any aspect of forensic pathology, certainly not in relation to axonal injury or methamphetamine toxicity. I’ll deal with that more thoroughly when I come to axonal injury and who it refers to. We respectfully submit that the comparison between Professor Duflou and Dr I’Ons speaks for itself through no fault of Dr I’Ons.

35. In order to address this issue, I will commence with a broad description of the qualifications of Dr I’Ons and Dr Duflou.

36. Dr I’Ons is a staff specialist forensic pathologist working with the Department of Forensic Medicine, Sydney, and Wollongong. He has a Bachelor of Divinity from Moore Theological College; a Bachelor of Medicine and a Bachelor of Surgery from the University of New South Wales with First Class Honours; and fellowships in specialist anatomical pathology and specialist forensic pathology with the Royal College of Pathologists in 2015 and 2016 respectively. He was awarded the NSW Health Pathology Chief Executive award in 2020. Since 2016, Dr I’Ons has performed more than 1200 autopsies, in more than 100 homicides.

37. Professor Duflou is a specialist forensic pathologist with experience examining, interpreting, and reporting on a large number of deaths over a period of 35 years. He has a Bachelor of Medicine, a Bachelor of Surgery a Master of Medicine in Forensic Pathology, and a Diploma in Aviation Medicine. He is a fellow at the Royal College of Pathologists of Australasia and the Faculty of Forensic and Legal Medicine of the Royal College of Physicians (London).

38. Professor Duflou was a senior pathologist at the Sydney Morgue between 1988 and 2015. He is currently in private practice and holds a part time appointment as Forensic Pathologist in the ACT conducting the majority of coronial autopsies.

39. Professor Duflou has undertaken significant research in relation to the detection of traumatic axonal injury in the brain by Beta Amyloid Precursor Protein (“β-APP”) immunohistochemistry, and methamphetamine toxicity.

40. Despite Professor Duflou’s eminence in the field of forensic pathology, I do not consider that the resolution of the medical issues in this matter may be properly approached by the unquestioning adoption of one expert’s views based solely and only upon their qualifications and experience.

41. In this case, each forensic pathologist had the specialist knowledge to state an opinion on disputed medical issues key to the question of causation and, in particular, in the field of forensic pathology, each had extensive experience.

42. No issues were raised by Professor Duflou in that respect. In fact, as Professor Duflou observed, Dr I’Ons had performed a competent and detailed autopsy “which has been documented to a high standard with comprehensive records of naked-eye findings and microscopy”. Further, Dr I’Ons was said to have conducted “all necessary autopsy-based investigations”.

43. That is not to say that this Court may not have regard to, in the course of considering the logical force of the testimony of an expert with insights or learning they may have through specialist research or study in particular areas of their field of medical speciality. I refer in this respect to the first five directions I will give as to the consideration of expert evidence. Those observations are particularly applicable to some questions that will arise as to injuries to the deceased’s brain, and, in particular, axonal injuries and methylamphetamine toxicity. Professor McGregor expressly recognised Professor Duflou’s expertise in the latter category.

44. A brief description should also be provided as to the qualifications and experience of Professor McGregor and Dr Drummer. Professor McGregor is a professor of psychopharmacology and Academic Director of the Lambert Initiative for Cannabinoid Therapeutics at the University of Sydney. He has a master’s with Honours in Experimental Psychology from the University of Oxford and a PhD in Psychopharmacology from the University of Sydney. He has more than 30 years of experience in the field of psychopharmacology and has published more than 280 international peer-reviewed journal articles in this area. He provided a report focusing on the effects of the drugs methylamphetamine, GHB and cannabis, the interpretation of their blood concentrations and their possible relevance in this case.

35. Dr Drummer has a PhD from Melbourne University and has been involved in the analysis of drugs and poisons for over 40 years. He has published extensively in the field and acted as an expert toxicologist in hundreds of cases in Australia, New Zealand and globally.

36. By virtue of orders made under s 275C of the Criminal Procedure Act, Dr I’Ons and Professor Duflou (“the forensic pathologists”) gave concurrent evidence. The bases for this decision will be discussed in the context of legal principles which I will turn to shortly. It is sufficient to note at this juncture that the directions were made for the taking of concurrent evidence. Those directions were made in response to areas of agreement and various disputed categories. The areas of agreement were as follows:

1. The deceased died between 3.33pm and 4.45pm on 2 February 2020.

2. The deceased was located with his hands bound behind his back and his ankles taped together.

3. The deceased had tape around his head which when complete would have been over his mouth. There was a gap where the nose would have been.

4. The deceased had dirt in his nostrils.

5. The deceased had a broken nose.

6. The deceased had injuries to his face and head which he received when he was assaulted by one or more of the accused. These injuries are described in the Autopsy Report and photographs were taken.

7. Examination of the deceased’s heart was normal.

8. The deceased had the following drugs in his blood:

• Methylamphetamine      0.42mg/L

• Amphetamine         0.09mg/L

• Delta-9-tetrahydrocannabinal   0.011mg/L

• Delta-9-THC Acid         0.038mg/L

• 4-Hydroxybutanoic acid (GHB)    13mg/L

9. There was no level at which methylamphetamine was necessarily fatal.

10. The amount of methylamphetamine in his system has been found in cases where a person has died entirely as a result of another cause. There have been cases where a person has died from methylamphetamine toxicity with a lower level of methylamphetamine in their blood.

11. The level of methylamphetamine at autopsy may not be the level when the person was alive. Studies in relation to methylamphetamine related deaths refer to the level at autopsy.

12. The level of cannabis was low and was not likely to relate to the cause of death.

13. The level of GBH was not reflective of the ingestion of an illicit substance.

47. The seven areas of dispute were jointly identified by the parties for the purposes of the taking of the concurrent evidence as follows:

1. Severity of injuries and cause of same.

2. Severity of head injuries. (This issue extended to the findings as to axonal injury in the neuropathology report of Associate Professor Buckland).

3. The obstruction of airways.

4. Relationship of positional asphyxiation.

5. Interpretation of petechiae.

6. Cause of death.

7. Role of methylamphetamine in cause of death.

48. I will return to the disputed medical areas after firstly directing myself as to the appropriate questions of law. I will analyse the expert evidence under each subject area where the experts were in disagreement. In that sense, I will follow the course adopted by the parties in their submissions. However, it should be emphasised that that approach has been adopted for convenience of analysis. My final deliberations will consider the entirety of the evidence, including the expert evidence, in order to determine the central issues arising in this trial, which I have earlier articulated. I emphasise that my final deliberations are reached after considering the whole of the evidence in light of the directions I will give and having regard to the submissions of the parties.

legal principles

Judge Alone Trial

49. In a criminal trial by judge alone, the trial is to be conducted in accordance with the requirements of s 133 of the Criminal Procedure Act which is in the following terms:

133   Verdict of single Judge

A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury.

A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.

If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter.

50. By s 133, a judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of guilt of an accused person and those verdicts have the same effect as a jury verdict.

51. The requirements of s 133(2) and (3) are legal imperatives: Fleming v The Queen (1988) 197 CLR 250; [1998] HCA 68 at [27] (there considering the identical predecessor in s 33(2); see Spiteri Ahern v R [2022] NSWCCA 56 (“Spiteri”) at [38]. I must set out the relevant principles of law and findings of fact upon which those verdicts are based (s 133(2)). I must take into account any warning that the jury would receive (s 133(3)).

52. There must be more than a literal compliance with s 133(2) and the process of reasoning leading to the verdict must be clear. Thus, as was stated in Spiteri at [39], the requirements of s 133(2) are not satisfied merely by bare statement of the principles of the law that the judge has applied and the findings of fact that the judge has made. Rather, there must be exposed the reasoning process linking them and justifying the latter, and ultimately, the verdict that is reached. The court must engage with the arguments made by counsel: AK v Western Australia (2018) 232 CLR 438; [2018] HCA 8.

Onus and Standard of Proof

53. This is a criminal trial. The burden of proof of the accused’s guilt is placed on the Crown. That onus rests upon the Crown in respect of every element of the offence. There is no onus of proof on the accused at all. It is not for the accused to prove his innocence, but for the Crown to prove his guilt and to prove it beyond reasonable doubt. The words “beyond reasonable doubt” are words of ancient origin in the law and are plain words which do not require elaboration.

54. The onus which rests on the Crown is to prove the elements of the offences with which the accused is charged, beyond reasonable doubt. Despite the fact that the accused accepts the elements, I still have to be satisfied of them beyond reasonable doubt.

55. The Crown is not required to prove every disputed fact beyond reasonable doubt. Nor is it required to prove the truthfulness and liability of any or all of its witnesses beyond reasonable doubt. However, unless the court is satisfied beyond reasonable doubt of each and every one of the elements of the offence under consideration, the accused must be found not guilty.

Impartiality

56. In considering this verdict, I must act impartially and dispassionately. I must not let emotion sway my judgment. Neither prejudice nor sympathy has any role to play in the determination of this case. My task must be undertaken free of prejudice or sympathy in any of its forms.

Inferences

57. I am entitled to draw inferences from the direct evidence. Inferences are conclusions of fact rationally drawn from a combination of proved facts. In the context of a criminal trial, where proof of the offences is required beyond reasonable doubt, I direct myself that I should not draw any inference adverse to the accused from the direct evidence unless I am satisfied that it is the only rational inference in the circumstances.

Expert Evidence

58. I remind myself about the principles relating to expert evidence. In this case, I have heard evidence from two expert forensic pathologist witnesses (Dr I’Ons and Professor Duflou) as well as from toxicologists Dr Drummer and Professor McGregor.

59. The expert evidence in this matter has been provided to assist me in determining whether the Crown has proven beyond reasonable doubt that the deceased died from a combination of head injuries and asphyxiation as alleged in the Crown case.

60. In the present case, there is a conflict between the expert evidence of Dr I’Ons (called on behalf of the Crown) and Professor Duflou (called on behalf of one of the accused, AN) in relation to the cause of death. It goes to the issue of causation. It is not a case of simply choosing between their evidence as a matter of simple preference. In this particular case, the Crown has the onus of proof in showing that the acts of the accused were a “substantial or significant cause of death” or a “sufficiently substantial” cause: Swan v The Queen (2020) 269 CLR 663; [2020] HCA 11.

61. Experts can differ in the level of and degree of their experience, training, and study, yet each can still be an expert qualified to give an opinion where that opinion is based on that witness’ specialised knowledge.

62. All of these witnesses had specialised knowledge based on their training, study, or experience. The expert evidence of these expert witnesses in this trial was admitted to provide me with expert information and opinion which is within the witness’ expertise, but which is likely to be outside the experience and knowledge of a lay person.

63. I must bear in mind that if, having given the matter careful consideration, I do not accept the evidence of any of the experts, then I do not have to act upon it.

64. To the extent that there is any conflict within the evidence of an expert, it is for me to decide which part or parts of that evidence I accept and which part or parts I reject. Also, to the extent that there is any difference (or differences) between the evidence of the experts, it is for me to decide which expert evidence I accept and which I reject.

65. In doing so, I must examine the basis on which the expert formed his or her opinion and determine whether the facts constituting the basis have been proven: Nguyen v R (2007) 173 A Crim R 557; [2007] NSWCCA 249.

66. I do not have to act upon the expert opinion where the facts upon which the opinions are based do not accord with the facts as I find them to be.

67. Indeed, I do not have to accept the evidence – even the unchallenged evidence of an expert. However, unless such evidence is simply unbelievable, I note that I would need to have a good reason to reject it.

68. The value of any expert opinion is very much dependent on the reliability and accuracy of the material which the expert used to reach his opinion. It is also dependent on the degree to which the expert analysed the material upon which the opinion is based, and the skill and the experience brought to bear in formulating the opinion given.

69. It is for me to decide whether an opinion is credible and what weight it should be given: Velevski v R (2002) 187 ALR 233; [2002] HCA 4 (“Velevski”). I am entitled to reject the expert evidence if I am not satisfied that the science or the testing is sufficiently accurate, reliable, or dependable.

70. Conflicting expert opinions of scientific evidence do not necessarily require me to hold a reasonable doubt: R v Shoesmith [2011] QCA 352 (“Shoesmith”) at [41]. I can analyse the bases of the expert opinions with reference to published medical research identified by the experts: Velevski at [85]; Shoesmith at [41]. If experts refer to published medical research, this must be within the researcher’s original context, and with respect to the limits placed by the author on his or her conclusions.

71. I must recall that in exceptional cases, I may be incapable of resolving a conflict between experts on matters of science. If the conflict relates to an area where I cannot resolve that conflict in a manner which would eliminate reasonable doubt, the accused must be acquitted: Velevski; Ussher-Clarke v R [2018] NSWCCA 61.

72. I must not accept disputed scientific evidence that is unfavourable to the accused unless there is a good reason to reject the defence evidence: Velevski.

73. If the conflicting evidence of the experts is not based on matters or assumptions with respect to matters upon which I can reach my own conclusions but, instead is evidence of:

… opinion on matters of science within disciplines of which each [is] a master, and at a level of difficulty and sophistication above that at which a juror ... might by reasoning from general scientific knowledge subject the opinions to wholly effective critical evaluation’, a [fact finder] cannot, by reference solely to that evidence, resolve that conflict in a manner ‘which would eliminate reasonable doubt’ (Velevski, at [85], citing Chamberlain v The Queen (1983) 153 CLR 514; [1983] HCA 13 and Chamberlain v The Queen [No 2] (1984) 153 CLR 521; [1984] HCA 7).

74. As my decision as to which expert to accept is likely to determine the accused’s guilt or innocence, I may only accept the evidence of the expert who is adverse to the accused if I am satisfied beyond reasonable doubt that his or her opinion is correct: R v Anderson (2000) 1 VR 1; [2000] VSCA 16; R v Sodo (1975) 61 Cr App R 131. If the evidence does not permit me to exclude, as a reasonably hypothesis, the possibility that there was another cause of death, I should find reasonable doubt as to the guilt of the accused: Velevski at [114]; confirmed in Dansie v The Queen [2020] SASCFC 103 at [456].

Right to Silence

75. Neither of the accused have given any evidence in response to the Crown’s case. There are a number of important directions of law which I must give myself in relation to that fact. Although an accused person is entitled to give evidence in a criminal trial, there is no obligation upon him to do so. As I have already pointed out, the Crown bears the onus of satisfying beyond reasonable doubt that the accused is guilty of the offence charged.

76. The accused in this trial bears no onus of proof in respect of any fact that is in dispute. I remind myself that they are presumed to be innocent until I have been satisfied beyond reasonable doubt by the evidence led by the Crown, that he is guilty of the offence charged. Therefore, it follows that each of the accused is entitled to say nothing and make the Crown prove his guilt, to the high standard required. I direct myself, as a matter of law, that the accused’s decision not to give evidence cannot be used against them in any way, at all, during the course of my deliberations. That decision cannot be used by me as amounting to an admission of guilt.

77. I must not draw any inference or reach any conclusion based upon the fact that the accused decided not to give evidence. I cannot use that fact to fill in gaps that may be thought to exist in the evidence tendered by the Crown. It cannot be used in any way of strengthening the Crown case or in assisting the Crown to prove its case beyond reasonable doubt. I must not speculate about what might have been said in evidence, if the accused had given evidence or what might have been said by any other person, if that person had been called by the accused, as a witness in the trial.

Addresses of Counsel

78. I have heard addresses from the Crown Prosecutor, and from Mr C Steirn SC and Ms C Davenport SC, counsel for the accused. I will consider the submissions made in their addresses and give them such weight as I think fit. I remind myself that in no sense are those submissions evidence in the case, and that counsels’ arguments provide a way of viewing the evidence from the differing perspectives of the Crown and the accused.

79. I have not set out the addresses of counsel separately as I have addressed them in my reasons below.

Elements of the offence of constructive murder

80. The Crown must establish that the deceased died as a result of acts done during or immediately after the commission of an offence punishable by imprisonment for 25 years (here, s 86(3) of the Act ):

Murder shall be taken to have been committed where the act of the accused, causing the death charged, was done during or immediately after the commission, by the accused, or some accomplice with him, of a crime punishable by imprisonment for life or for 25 years. (s 18(1) of the Crimes Act).

81. There is no mental element beyond that which is required for the foundational offence: Batcheldor v R [2014] NSWCCA 252; Walsh v R [2012] NSWSC 1399

82. As there is a plea to the foundational offence, the only issue remaining in this matter is whether it was an act of the accused or the co-accused which caused the death of the deceased.

83. The agreed facts establish that the deceased died between 3.33pm and 4.45pm.

84. It is the Crown case that the deceased died as a result of airways asphyxiation with craniofacial injuries. The Crown must establish that both co-existed to succeed.

Causation

85. The Crown needs to establish that an act or acts of the accused were a substantial or significant cause of death: Royall.

86. The issue of causation concerns the attribution of legal responsibility – the question of cause is not a philosophical or a scientific question, but a question to be determined by applying common sense to the facts as they are found to be, appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter: R v Moffatt [2000] NSWCCA 174 at [69] per Wood CJ at CL, citing Burt CJ in Campbell [1981] WAR 286.

87. It is not necessary that the accused engaged in every act that is necessary for death to occur: Swan at [24]. It is not necessary that the acts of the accused are the only cause of death, nor is it necessary that the acts are the most important: Swan at [27]. However, the Crown needs to establish that an act or acts of the accused were the substantial or significant cause of death: Royall.

Section 275C of the Criminal Procedure Act 1986 (NSW)

88. On 10 May 2022, the Court ordered that the evidence of the forensic pathologists would give concurrent evidence and made the following directions:

1. That the expert witnesses be sworn in immediately after another.

2. That the expert witnesses, when giving evidence, occupy a position in the court room determined by the court.

3. That each witness give an opening oral exposition of his or her opinion, or opinions, on the issue or issues concerned, including:

1. The expert witnesses confirm their areas of agreement;

2. Whether the expert witness adheres to any opinion earlier given; or

3. Whether, in the light of any such evidence, the expert witness wishes to modify any opinion earlier given.

4. That cross-examination or re-examination of the expert witnesses giving evidence occur by putting to each expert witness, in turn, each issue relevant to one matter or issue at a time, until the cross-examination or re-examination of all of the expert witnesses is complete.

5. That each expert witness given his or her opinion about the opinion or opinions given by another expert witness.

6. That any expert witness giving evidence in the circumstances be permitted to ask questions of any other expert witness together with whom he or she is giving evidence as so referred to.

7. The aforementioned directions shall be undertaken with each area of disagreement.

89. I propose to give brief reasons for the taking of that course.

90. Section 275C provides as follows:

275C   Court may direct expert evidence be given concurrently or consecutively

(1)   The court may, at any time, give directions as it considers appropriate to enable the giving of expert evidence concurrently or consecutively in criminal proceedings.

(2)   Directions under this section may include the following—

(a)   a direction that an expert witness give evidence at any stage of the proceedings,

(b)   a direction that more than one expert witness give evidence at the same time in the proceedings,

(c)   a direction that an expert witness give an oral exposition of the witness’s opinion on a particular matter,

(d)   a direction that an expert witness be examined, cross-examined or re-examined in a particular manner or sequence, including by putting to each expert witness, in turn, each question relevant to one matter or issue at a time,

(e)   a direction that an expert witness be permitted to ask questions of another expert witness who is giving evidence at the same time during the proceedings.

(3)   A direction may be given under this section only with the consent of the prosecutor and the accused person.

(4)   This section does not limit any other powers of a court to give directions in relation to evidence, witnesses or the management and conduct of proceedings.

91. Section 275C was inserted into the Criminal Procedure Act by the Justice Legislation Amendment Act (No 3) 2018 (NSW). In the Second Reading Speech, the Attorney General, the Hon Mark Speakman SC MP, stated:

Item [4] of schedule 1.15 inserts section 275C into the Criminal Procedure Act to give courts a clear power to give directions to enable the giving of expert evidence concurrently or consecutively in criminal proceedings, with the consent of the prosecutor and the accused. This amendment will enable the giving of concurrent evidence by experts—colloquially known as ‘hot tubbing’—in order to assist judicial officers and juries to understand and engage with expert evidence. It will also streamline the process of that evidence being given in the course of criminal proceedings. Evidence is traditionally given consecutively in criminal proceedings and follows the usual process of examination-in-chief, cross-examination, and re-examination. This amendment will enable expert witnesses to be called immediately after one another. (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 24 October 2018, at p 69)

92. My reasons for taking expert forensic pathological evidence by way of concurrent evidence are as follows:

1. The evidence of the forensic pathologists was plainly critical to the consideration in the trial of the issue of causation;

2. That evidence was attended by some complexity, including opinions as to the current applicable state of medical science, bearing upon particular issues, such as the detection of axonal injury by β-APP immunohistochemistry and deaths due to methamphetamine toxicity;

3. Concurrent evidence provided an opportunity to obtain better understanding of the respective opinions by providing an opportunity for an exchange of opinions in a structured discussion around well-defined issues. The position of the experts in that common forum permitted the sharper definition of issues and the refinement of areas of difference including the basis for reliance being placed on medical literature;

4. The maintenance of cross-examination during the concurrent evidence ensured the trial was fair to the respective interests. The modification of cross-examination into structured issues or topics served to better elucidate the basis for the opinions held by the experts in each area. The capacity of the experts to make additional observations at the close of each issue or topic did not artificially confine the cross-examination available to counsel, but enabled the experts to clarify particular aspects of their evidence (with the prospect of further cross-examination as required);

5. It is true, as I have explained, that each expert was well qualified to express opinions, even though the extent of the experience as to particular topics may vary. Further, as to the issues of credit, I do not consider that they were of such a nature as would permit the Court to entirely prefer one expert over another. The concurrent evidence did permit better understanding of the bases on which the opinions were expressed and thereby assisted and permitted the court to form its views as to the respective issues based upon the expert opinions and other relevant medical literature in the context of the facts and circumstances found by the court.

6. Overall, the process permitted the experts to present their view comprehensively in circumstances where they could respond directly to each other so that their opinions are tested by their peer as well as by a process of cross-examination.

Factual Findings and discussion about non-medical evidence

93. Based upon the Agreed Facts and the evidence adduced before the Court, the Court makes the findings of fact stated below.

94. The Grindr messaging commenced with a picture message sent by the deceased using the Grindr profile name “OLDA4YOUNGER” to the profile name “Kodo” (at 12.59pm on Saturday 1 February 2020. At 2.49pm on the same day, AN replied with a picture message (detail unknown). At 3.43pm, the deceased sent a message to AN saying, “I’m in Canberra and where you located? Do u host? Drive?”. At 3.46pm, AN replied saying, “Hi I’m at Batemans Bay here I can’t drive would you e (sic) able to travel here”. The deceased replied saying, “Can you host or can you share the cost of a hotel” and “I could travel”. At 4.23pm, the deceased enquired of AN “Gay or bi?” and shortly afterwards “You 18 or younger”. At 4.24pm AN responded “Im gay and 18”.

95. As mentioned, the deceased left early from his apartment and travelled through Braidwood to Batemans Bay. He communicated with AN on his way.

96. Evidence from Chantelle Walsh, a friend of the deceased, which I shall discuss below, suggested the deceased was a regular drug user and that he planned to use drugs when he left for down the South Coast.

Communication between accused

97. As mentioned, the three accused discussed meeting at the third or fourth power pole along the powerline easement. AN met with the deceased at the Imlay Street tennis courts and brought him down to the third or fourth power pole. There, LM and WD joined AN.

98. In addition to mobile phone contact, the three accused exchanged messages on Snapchat. This was the main application accessed by the accused persons to communicate on this date. There was no further communication after 3.27pm, which was the time that the deceased arrived in Imlay Street Broulee.

Meeting between AN and deceased

99. At 2.30pm, the deceased sent a message to AN on Grindr that said, inter alia, “I am on the way to pick you up…”. AN responded at 2.34pm saying, “Okay cook (sic - cool) sounds good when you come to Broulee and meet me on Grant Street”.

100. At an estimated time of 2.40pm, AN, LM and WD were witnessed leaving the vicinity of WD’s home. At the intersection with Grant Street, LM and WD turned southwest along Grant Street towards the McNee Street intersection and the powerline easement. One of these males was seen carrying a bag. LM had his mobile phone on him. AN walked in the opposite direction, northeast along Grant Street towards the Imlay Street intersection.

101. At 2.41pm, AN sent a message to the deceased on Grindr saying, “Actually no meet me at Imlay Street”.

102. At 2.45pm, AN sent a message to the deceased on Grindr saying, “I’m waiting at a bench next to the tennis courts that are on Imlay Street Broulee”.

103. At 2.51pm, the deceased sent a message to AN on Grindr saying, “Leaving now” and AN responded “Okay see you soon”.

104. At 2.51pm and 2.52pm, AN phoned a telephone number but it was a missed call. This was an attempt to call LM, but the wrong number was dialed. At 2.53pm, AN called WD’s number but the call went unanswered.

105. Between 2.53pm and 3.11pm, the deceased and AN continued to exchange messages over Grindr. The deceased suggested going straight to a hotel, but AN pleaded with him to instead go to a location where he had “a little stash hidden”. At 3.04pm, AN sent a message to the deceased saying, “but pleaaaasee I wanna do it here and then suck you off I’ve always wanted to in this spot”. At 3.10pm, the deceased agreed.

106. At 3.25pm, the deceased’s vehicle was captured turning into Imlay Street from Grant Street and travelling west towards the tennis courts.

107. At about 3.27pm, AN got into the deceased’s car.

108. At 3.29pm, the deceased’s car left Imlay Street and turned south onto Grant Street (in the direction of the crime scene).

109. A subsequent drive through performed by investigating police via George Bass Drive demonstrated the route travelled by the deceased and AN in the deceased’s car from their meeting point at the tennis courts in Imlay Street to the crime scene via Grant Street, Broulee Road and then George Bass Drive and a fire trail off George Bass Drive leading to the powerline easement “the fire trail”, a total distance of 1.85km.

110. As mentioned, at about 3.33pm, the deceased and AN arrived at the crime scene.

111. Meanwhile, after leaving WD’s home at around 2.40pm, LM and WD walked from WD’s home, turned left onto Grant Street and continued in the direction of the powerline easement. The movements of LM (and co-accused WD) were recorded by an application and GPS location data on LM’s mobile phone as well as observations of a witness on the Bengello track.

Data recorded by an Apple Heath App downloaded from LM’s mobile phone

112. Sergeant Adam Catto-Pitkin in the Digital Forensics Unit High Tech Crime Branch with NSW Police gave evidence on 9 May 2022. He has specialist training in relation to electronic evidence and examined the handset that was seized from LM. He extracted information contained on LM’s handset via the Cellebrite program, in particular, the information from an Apple health application (“Health App”) installed on LM’s mobile phone.

113. The Health App tracks information relating to the physical activity of a user (“activities”) including steps taken (walked or run), flights of stairs climbed, distance in metres and the length of time the activity took. When data was downloaded by investigating police from the phone following its seizure, there was data from the Health App (eight activations) as well as GPS location data relating to movements of the handset on 2 February 2020 between 1.21pm and 4.30pm (three activations).

114. The following are the locations of the handset at three different times as indicated by the three GPS location activations:

1. The first GPS location activation at 1.21pm placed LM’s phone handset in Massey Street, Broulee at a location close to WD’s home.

2. The second GPS location activation at 3.03pm placed the handset approximately 8m into the bush to the northern side of the powerline easement, approximately 130m southwest of the crime scene.

3. The third GPS location activation at 4.30pm was on the driveway of the property adjacent to WD’s home.

115. Between 2.34pm and 2.53pm (that is, during the time when the accused and co-accused were seen by the Keane Family on Massey Street), the Health App on LM’s phone recorded 992 steps (589.41m) of movement and then a further 12 steps (5.44m) taken at 2.55pm. As mentioned, the GPS location data at 3.03pm has the phone located on the powerline easement around the area of the fourth power pole in the bush off to the side. This distance of 594.85m (589.41 + 5.44m) together with the GPS location, records LM and WD walking from the vicinity of WD’s home to the area of the fourth power pole on the powerline easement, pursuant to their agreement with AN.

116. Movement recorded by the Health App at 3.33pm (which is the time the deceased and AN arrived at the crime scene) until 4.24pm involved a total 3123 steps/2141.77m (with a further 359 steps/252.21m between 4.24pm and 4.30pm). This cessation of activity corresponds with the time of the third GPS location activation at 4.30pm, which placed the handset back at Massey Street. As the Crown submitted, the tracker shows LM in a long period of continuous activity from 3.33pm until 4.30pm.

117. During this period, LM and WD left their location in the bush off to the side of the easement around the fourth power pole and joined AN at the crime scene, where together, the three accused carried out the agreed foundational crime by detaining the deceased, tying his wrists and ankles, taping his head/face/mouth with brown coloured packaging tape, and inflicting actual bodily harm upon him. (I will return to the question of the tape covering the deceased’s mouth).

118. The BWV by Senior Constable Harries shows a disturbed circular patch of dirt near the driver’s door of the deceased’s car. As I will discuss, Senior Sergeant Moon described multiple partial shoe prints in that area.

119. Given that LM and WD had moved from their concealed position in the bush to confront the deceased and the deceased had driven his car to the location where these marks were found (AN had driven to the location with the deceased), I agree with the Crown that an inference is available that an assault occurred at or about the circular area. It may be expected that the assault commenced shortly after the deceased’s arrival; it was plain that the accused was motivated to assault the deceased, his keys were in the ignition of the car and his phone remained also inside.

120. The three accused then departed the crime scene and returned to WD’s home via the bush and the beach. The Court was played a recording (Tender 7 in Exhibit 4) of police officers conversing with Kenneth Norman Chapman, (“Mr Chapman”) who contacted the police in relation to seeing three young men (the accused and WD) walking along Bengello track on the afternoon of 2 February 2020. The recording showed Mr Chapman talking to police at the gate to the start of the fire trail (Bengello track), approximately 100m east of the powerline easement. The police officers placed two markers on the fire trail between which Mr Chapman indicated the youth entered, crossed, and exited the fire trail.

121. Bengello track runs from the beach carpark “Sand Mines” (just beyond the commencement of the powerline easement) to the Northern end of the Moruya airport. It is 3.4km long (6.8km return) and takes an average of 15 minutes to cycle one way (average 30 minutes return).

122. On 2 February 2020, Mr Chapman had cycled to the start of the track via Grant Street and had seen the deceased’s car parked on the right-hand side of the powerline easement at the crime scene. Mr Chapman had then cycled the Bengello Track to the airport and back and waited for his son at the gates at the commencement of the track. While he was waiting there, he saw three young males (the accused and WD) come out of the bush on the powerline side of the Bengello track about 50m away from him.

123. In the Agreed Facts, it was stated that that the males turned to walk along the track in a northerly direction towards Mr Chapman, they saw him and stopped, looked startled, and immediately turned and began to walk quickly in the opposite direction for a short distance and then they left the track and headed through the bush on the other side of the track towards the beach.

124. In the walkthrough video, Mr Chapman stated that the three youths looked toward him. He stated:

… the thing that was odd was that they started to come this way and then saw me on my bike and then turned and went the other way straight away.

125. Mr Chapman gave a statement in which he identified the approximate locations where he saw the three males emerge from the bush on the easement side of the track and where they re-entered the bush on the beach side of the track.

126. After seeing Mr Chapman and re-entering the bush, the accused and WD walked through the bush to the beach, then along the beach before walking up the sand dunes to the Massey Street beach access path and returned to WD’s house. As I will mention, this route was filmed by police on 30 April 2021.

127. During tests conducted by Sergeant Catto-Pitkin on 7 and 8 April 2021, the above-mentioned route (“Route 5”) was walked from the fourth power pole in the powerline easement southwest of Massey Street, to the crime scene and then across the easement, through the bush to the Bengello Track, through the bush to the beach, north along the beach to Massey Street beach access path and back to WD’s home. This route is depicted in figure 1.5 in Annexure D to the statement of Sergeant Catto-Pitkin dated 7 June 2021. The total distance is 2.144km (2,144m). It took Sergeant Catto-Pitkin between 35 minutes 30 seconds and 40 minutes 30 seconds to walk this route.

Discovery of the Deceased’s Body

128. At 4.45pm, Mr Devlin drove his Toyota Hilux twin cab utility vehicle onto the Grant Street end of the powerline easement to take his dog for a run. He did not notice any people in the area. As he drove south along the easement, he noticed the deceased’s car located approximately 300m along the easement from the Grant Street end.

129. Mr Devlin stopped driving, got out of his utility vehicle, and saw the deceased lying on the ground to the west of the Honda. He video-recorded the scene with his phone. He observed that there was brown packing tape wrapped around the deceased’s ankles, around his chin and neck area and he had his hands behind his back. Mr Devlin noticed the deceased appeared to be dead. He rang 000 (at 4.53pm on Mr Devlin’s mobile phone call log; 4.54pm was recorded at NSW Police (Oak Flats) Radio Operations Centre). He also observed a patch of ground in front of the deceased’s car which appeared to be disturbed as if there had been the scuffle, to which I have earlier referred, and there were apparent drag marks from that disturbed area to the location of the deceased.

130. First police arrived on scene at 5.11pm. Upon arrival, Senior Constable Harries activated his BWV and captured the disturbed soil in front of and to the front offside of the deceased’s car. This disturbance was subsequently examined and recorded pictorially by crime scene officers (although there was some rain while the ground was not protected from the elements).

131. The BWV (which was muted) showed Mr Devlin standing in front of his vehicle and pointing toward a Honda Jazz. The camera moves towards the car and the deceased can be seen lying in the grass. The video shows three police officers approaching the body from the right. The footage stops and restarts to show two paramedics approach from an ambulance at 5.16pm. The footage stops and restarts to approach the crime scene (the car and the deceased) from the right, where the paramedics have come from. The recording stops and restarts at 5.21pm, depicting a conversation with Mr Devlin.

132. Ambulance officers arrived shortly after first police. They observed no signs of life from the deceased and confirmed the absence of a pulse on a heart monitor. Resuscitation was not attempted. The deceased was observed to be lying on his left side with his arms bound behind his back. His ankles were bound with brown packing tape and part of his face was also covered with this same tape. On his face the tape appeared to have a flap coming away from the area near the mouth. All the doors and windows of the deceased’s car were closed. The keys were in the ignition. In the centre console was the deceased’s mobile iPhone with charger and Bluetooth device attached.

133. At 12.25pm on 3 February 2020, a line search of the powerline easement and fire trail leading between George Bass Drive and the easement was conducted but nothing of interest was located. On 24 and 25 March 2020, further line searches were conducted around the crime scene and across to the Bengello track and the beach but nothing of interest was located.

Crime Scene Examination and Forensic Evidence

134. I turn then to a discussion of the crime scene evidence and forensic evidence as stipulated in the Agreed Facts. They also constitute my findings of fact. I will culminate my discussion with a summary of the evidence of Detective Senior Sergeant Moon, Sergeant Catto-Pitken and Detective Senior Sergeant Simpson. There was limited cross-examination of these witnesses. Some suggestions were raised in cross-examination of the reliability of Detective Senior Sergeant Moon’s evidence because of a failure to record an experiment he conducted with regard to packing tape over the deceased’s mouth, but overall, I consider these witnesses to be honest and reliable in their accounts.

Senior Sergeant Moon’s observations

135. Crime Scene officers Detective Senior Sergeant Moon and Senior Constable Cajna attended the scene.

136. I will deal firstly with some observations made by Detective Senior Sergeant Moon:

1. On the ground in front of and to the right-hand side (offside) of the deceased’s vehicle was disturbance of the soil substrate (represented by Markers R and S and depicted in Detective Senior Sergeant Moon’s photographs 7, 8, 20, 21, 25-28). From this area of disturbance were two linear impressions in the dirt leading in the direction of the body of the deceased.

2. The deceased was lying partially on his back and left side. His head was turned with the left side facing down and right cheek exposed. There was a large amount of sand and soil adhering to the front part of his face. Further sand was evident within the nostrils and mouth. Body fluids were leaching from the nose.

3. Located around the deceased’s head was brown coloured packaging tape. The tape had been wrapped multiple times around the head. The arrangement of the tape had separated at a point near the right side of the face or right ear. The section of tape originally positioned over the face was lying on the ground on the left side of the head. This tape was collected as an exhibit.

4. The deceased was wearing jeans which were folded at the ankles and torn around the knees. The jeans were dirt stained, mostly on the front and upper thigh areas.

5. The deceased’s legs were secured at the ankles with brown coloured tape. It was examined and found to consist of several pieces of overlapped brown tape. There were areas of sand and grass material on the adhesive side of the tape. The tape was tightly secured and had been wrapped numerous times around the ankles with the end section showing evidence of extreme stretching, creating a skinny thread-like piece of the tape, consistent with the tape being pulled to break.

6. The deceased’s wrists were located across each other and positioned behind his back. Brown packaging tape secured the wrists tightly with many returns of the tape wrapped around his lower arms. His hands were extremely dirty. A small amount of sand and a substantial amount of dried grass was located on the adhesive section of the tape. Many sections of the tape showed evidence of stretching. The tape was cut off prior to collection as an exhibit.

Forensic Examinations

137. The forensic examination of various aspects of the tape and the deceased’s car and clothing undertaken by Detective Senior Sergeant Moon was summaried in the Agreed Facts as follows:

1. The tape from the deceased’s head/face was examined. I will return to Detective Senior Sergeant Moon’s opinions as to the relative position of the tape when considering his evidence.

2. An examination for fingerprints was conducted on this tape, but no suitable prints were developed. Confirmatory tests conducted on areas of apparent blood staining were all positive for human blood.

3. An examination for fingerprints was conducted on the tape around the deceased’s ankles. Several fingerprints were developed that were compared with a set of recorded fingerprints of LM. A fingerprint developed from the adhesive side of the tape around the deceased’s ankles matched the left ring finger of LM. Two other fingerprints developed from that same section of tape could not be ruled out as being the fingerprints of LM’s left ring and left little fingers. Another fingerprint was developed from the adhesive side of the tape around the deceased’s ankles that also matched the fingerprint of LM’s left little finger.

4. An examination for fingerprints was conducted on this tape. Several fingerprints were developed that were compared with a set of record fingerprints of LM. A fingerprint developed from the non-adhesive side of the tape around the deceased’s wrists matched the left palm of LM.

5. Tape lifts and swabs were collected from various parts of the deceased’s car identified as likely DNA targets. No results of interest were identified.

6. Tape lifts were collected from various areas of the deceased’s jeans, Nike branded (wrist) sweat band, light blue singlet, socks, and shoes.

7. A tape lift collected from the external front left side of the deceased’s singlet contained DNA with a mixed profile originating from at least three individuals. The major contributor to the mixture has the same profile as the deceased and AN could not be excluded as a minor contributor. Assuming there were three contributors, and that deceased was one, it is greater than 100 billion times more likely to obtain this mixed profile if it originated from the deceased, AN, and an unknown, unrelated individual, rather than if it originated from the deceased and two unknown, unrelated individuals in the Australian population. The DNA from the additional minor contributor/s was not suitable for comparison due to low level.

8. A tape lift taken from the top front of the deceased’s right shoe was found to contain a mixed DNA profile originating from at least two individuals. The major contributor to the mixture has the same DNA profile as the accused, AN. It is greater than 100 billion times more likely to obtain this major DNA profile from AN, rather than if it originated from an unknown, unrelated individual in the Australian population. The DNA from the minor contributor was not suitable for comparison due to the low level.

9. A tape lift taken from the top outer side of the deceased’s left shoe was found to have a mixed DNA profile with the major contributor having a DNA profile matching WD. It is greater than 100 billion times more likely to obtain this major profile if it originates from WD, rather than if it originates from an unknown, unrelated individual in the Australian population. The deceased cannot be excluded as a minor contributor to this mixture. The DNA from the additional minor contributor/s is not suitable for comparison due to the low level.

DNA Swabs at Autopsy

138. Other DNA results (swabs and samples) were taken from the deceased at autopsy. They were as follows:

1. DNA swabs were taken from fingernail clippings of the deceased’s right hand. These swabs were taken from the upper edge of the right fingernail clipping and the inside lower surface of the right fingernail clipping. Both swabs returned a positive screening for blood.

2. In each swab the DNA recovered was a mixture originating from at least two individuals. The deceased and AN could not be excluded as contributors to each mixture. Assuming there are two contributors and that the deceased is one of the contributors, it is greater than 100 billion times more likely to obtain this mixed profile if it originates from the deceased and AN, rather than if it originates from the deceased and an unknown, unrelated individual in the Australian population.

Weather information at time of alleged events

139. Data obtained from the Bureau of Meteorology for 3.30pm to 4.30pm on 2 February 2020 at Moruya Airport indicated: air temperature ranged between 20.5-20.9 degrees Celsius, relative humidity 78-80%, wind speed 17-21 km/h, wind gust 21-28 km/h.

Internet searches conducted by AN

140. Following AN’s arrest, police seized a computer from his bedroom which was forensically analysed and the following searches were identified:

1. At 1.02pm on Sunday 2 February 2020, “Does holding a metal object in your hand make a difference to your punch”. This search was conducted a short time before AN attended WD’s home;

2. At 9.25am on 5 February 2020, “Strike Force Henrick”;

3. At 10.44am on 5 February 2020, “juvenile for murder”;

4. At 12.43pm on 5 February 2020, “how long do murderers serve in prison”;

5. At 2.04am on 6 February 2020, “how to destroy a phone”

6. At 10.47pm on 10 February 2020 “How to log out snapchat from other device”;

7. At 5.29pm on 12 February 2020, “How to log out of snapchat on lost phone”.

Admissions/Post Offence Conduct

141. At 6.32pm on 2 February 2020, AN had the following text message exchange with WD:

Time (pm)	Sender	Message
6:32	AN to WD	Grimbo anything happening down your end?
6:32	WD to AN	Nah
6:33	AN to WD	That’s good
6:33	WD to AN	It is
6:48	AN to WD	Grimbo I’m sorry to ask you but if you can would U be able to peek around and see if the car is still there
7:09	AN to WD	Lad
7:10	WD to AN	Yeah cop’s are about
7:11	AN to WD	Damn
7:11	WD to AN	Don’t worry it’s all chill
7:11	AN to WD	Any ambos?
7:11	WD to AN	Yeah
7:11	AN to WD	Okay… How many were there?
7:11	WD to AN	Lets stop talking about it and keep it on the down low … just in case
7:11	AN to WD	Yes
7:12	WD to AN	But We’re good
7:12	AN to WD	Cool cool

142. The evidence of Mr Blake Motbey, a classmate of AN, was that in English class with AN “a couple of days after hearing about the (deceased’s) death”, AN was talking about his knuckles and fist hurting and was rubbing his knuckles of one hand into the palm of the other hand.

143. On Monday 3 February 2020, AN went to school but left with a friend, Ms Grace Glover, after first period and travelled into Batemans Bay. AN said to Glover: “Tell me if you see a purple Honda”.

144. Later that day at 6.08pm AN was photographed at WD’s house. The photographs revealed apparent injuries.

145. On 5 February 2020 at 2.02pm - 2.10pm, police attended WD’s home where they spoke to WD and his father. Shortly after they left, at 2.15pm, WD attempted to call LM three times (at 2.15pm, 2.20pm and 2.56pm), but there was no answer. WD then attempted to call AN twice at 2.25pm but there was no answer. The next morning at 11.47am, LM called WD (duration 1 minute, 57 seconds).

146. AN was arrested at 6.05am on 13 February 2020. AN made the following admissions at the time of his arrest: “Dad, I’m sorry Dad … I didn’t do it on purpose, it was an accident, I didn’t mean it to happen, I didn’t mean to Dad … I didn’t want it to happen”.

147. AN also told police at the time of his arrest that he had broken his mobile phone and thrown it away. AN’s phone handset has never been recovered by police. A text message was sent by AN to WD at 3.59pm on 4 February 2020, “Should I destroy my phone”. There were also internet searches conducted on AN’s computer for “how to destroy a phone”, “how to take apart Samsung S8”, “how to erase all data Samsung”. When police executed the search warrant following AN’s arrest, the SIM card from that handset was recovered and, it was ascertained, the device was only used between 21 January 2020 and 6 February 2020.

148. Police attended LM’s home at 6.55am on 13 February 2020. Admissions by LM after he was cautioned and in the presence of his father as a support person were as follows (recorded on BWV):

In all truth, I knew it was gonna happen but I didn’t know he was gonna kill him …

I think that was an accident …

[AN] just said he was gonna ... you know like ... bash him. He wasn’t gonna kill him or anything.

149. Admissions by LM in a record of interview conducted by Detective Senior Constable Brendan Gunn and Detective Senior Constable Andrew Tyler on 13 February 2020, included:

… we was just gunna like scare him, or whatever …

Intimidate, I guess, is the word …

[AN just] mentioned that that he was gunna meet him, and he just wanted to intimidate him, scare him, because we were all under the impression that he was a paedophile …

150. LM said it was nothing to do with meeting up to use drugs or to steal drugs:

… it was just because [AN] is underage, and he wanted to meet up with [AN] to have sex, from what I’ve heard, and that he has had sex with a 14 year old in the past. That is, what was also mentioned …

… the plan was to take [the deceased] down there. So we already knew that this was where [AN] was gunna be. So we waited here. And I think it was … the 4^th or 3^rd power line that we agreed on. And when [AN] got there and what not, so I messaged him, or, actually, I did message him when he was at Imlay Street, and he said, I think he just got picked up and what not. And then that’s when he came down there. We waited about ... a couple of minutes, I guess, until we started walking down there.

151. LM said that AN “mentioned” the tying up. He said that at WD’s house beforehand, AN:

… just said that, that he was gunna bash him ... I didn’t think he was gunna bash him so much that he fuckin’ died, though.

152. In an intercepted phone call on 9 June 2020 at 3.37pm between LM (in custody) and his parents about only having two days to receive the Autopsy Report, LM said:

I reckon it’s going to be suffocation … but that’s all good … because that means um his death was inadvertent, so it will get dropped from murder.

The Evidence of Sergeant Adam Catto-Pitkin

153. Sergeant Catto-Pitkin worked with the Digital Forensics Unit, High Tech Crime Branch, of the NSW Police. He mapped a number of different walks that were re-enacted when the detectives were investigating the matter:

1. Route 1 was the most direct from the home of WD to the beach, which SIX Maps recorded as 459m.

2. Route 2 was a location in Massey Street via another route to the beach.

3. Route 3 was between two GPS coordinates from LM’s phone (WD’s home and the fourth power pole), a distance of approximately 692m.

4. Route 4 involved doubling back between WD’s home and the GPS location.

5. Route 5 indicated a route from the GPS location at the fourth power pole to the location of the deceased, through the bush, crossing the fire trail, to the beach and back to WD’s home. Route 5 was a total of 2.144km.

6. Route 6 was an alternative route nominated by the detectives.

7. Route 7 added the skate park to Route 5.

8. Route 8 added the lookout to Route 5.

The Evidence at Trial of Detective Senior Sergeant Gregory Moon

154. Detective Senior Sergeant Moon attended the power easement of the south-western side of McNee Street, Broulee, at 10.00pm on Sunday 2 February 2020. He left the site at 2.00am and returned the next morning to take photographs. The deceased was present at the time of Detective Senior Sergeant Moon’s arrival and during the course of his observations.

155. There was a tent over the vehicle and a tarpaulin protecting the areas where there were some furrows that were made in the sand. As mentioned, there was no protection over the area near the offside of the vehicle.

156. There was a small amount of rain between 5.00pm and 11.30pm on 2 February 2020. A total of 2mm of rain fell in the region. (Detective Senior Sergeant Moon’s Second Statement at [27]).

157. In his opinion, the area of recent disturbance of the soil substrate located near the front offside portion of the vehicle incorporated many impressions which could be attributed to footwear, but there was minimal detail and they were not suitable for comparison, given the effects of the weather (Marker R).

158. An area of both live and dead grass (Marker S) was located between the area of recent disturbance (Marker R) and the linear marks in front of the vehicle (Marker Q). The grass located on the front of the deceased’s singlet (see further below) was possibly transferred from the area represented by Marker S. (Detective Senior Sergeant Moon’s First Statement at [28]).

159. The front portion of the jeans worn by the deceased and the exposed knee area were very soiled and consistent in appearance with the soil substrate located within the area represented by Markers R and S (as opposed to the ground where the deceased was located, being covered predominantly with plant material) (Detective Senior Sergeant Moon’s First Statement at [11.3.3]).

160. There were numerous tyre impressions located throughout the entire area of the easement, representing many vehicle movements throughout the area (Detective Senior Sergeant Moon’s First Statement at [23]). Several tyre impressions were identified entering or exiting the easement from the fire trail (Detective Senior Sergeant Moon’s Second Statement at [16]). The tyre marks curved from either the north to east or east to north. The track width of the tyre impressions between Marker F and H measured approximately 1.5m. Specifications obtained from the owner’s manual for a 2007 Honda Jazz indicated the Track Width for both the front and rear axle is normally between 1.44m and 1.45m. The curvature of the tyre marks and speed of the vehicle can increase the width of the tyre marks.

161. Detective Senior Sergeant Moon could not comment on the creation time of the marks due to degradation, the soft nature of the ground and previous weather conditions. Located about 15m to the rear of the deceased’s vehicle were a series of tyre impressions which indicated a vehicle had previously turned around in that area. The tyre marks continuing in a north-east direction moved towards the location of the vehicle. The depth of the furrows indicated the vehicle creating the marks had been moving at a moderate speed, however the marks showed minimal detail and were not suitable for comparison.

162. Detective Senior Sergeant Moon opined that it was possible that the deceased’s vehicle could have made the tyre marks, however, could not discount the marks being made by a vehicle of similar size.

163. The area was flat and consisted of sand-based soil which had recently been cleared (Detective Senior Sergeant Moon’s First Statement at [19]). The marks in the substrate in front of the vehicle to the north were elongated and orientated towards the location of the deceased. There were two furrows that follow the same path, or line, of each other. The characteristics of the furrows were consistent with having been caused by the feet and possibly the knees of the deceased while being dragged through this area (Detective Senior Sergeant Moon’s First Statement at [26]). Detective Senior Sergeant Moon opined that it was more likely that the deceased was dragged by the feet. He explained that in most circumstances when a body is moved, it is done by the shoulders and dragged through the ground. It is much more difficult to move a body if it is lying face down.

164. Detective Senior Sergeant Moon also opined that the continuous nature of the furrows suggested the body was not moving when it was dragged.

Under most circumstances if we had someone that was moved in this process where the feet were in the ground creating the furrows I would not expect to get the continuous furrows if the person was in a position that they were still moving, yeah.

165. As to the circular disturbance of the soil located near the driver’s side of the vehicle, a lot of sand had been overturned and the substrate was darker than the substrate in front of the vehicle itself.

166. Both live and dead grass was located between the circular area of disturbance and the linear marks in front of the deceased vehicle. The grass was similar in appearance to the grass located of the front area of the inner singlet worn by the deceased (Detective Senior Sergeant Moon’s First Statement at [28]). Detective Senior Sergeant Moon opined that this indicated the deceased and others were in the area of circular disturbance before the deceased was dragged to his final position. When the deceased was found, his outer singlet was pulled up (Photograph 28, Tab 2, Exhibit 5). The outer singlet would have needed to be pulled up at a point for that grass to be located within the two singlets.

167. Detective Senior Sergeant Mood made observations of the deceased as follows:

1. He was located on an area of vegetation incorporating native grasses and bracken fernand was lying partially on his back and left side:

Yes. Well, he was mainly on his back but the front, the, it was slightly turned to the left. So the face was or the head was positioned toward the left and the feet were positioned towards the ‑ the left as well, so the outside section of the left shoe and inside section of the right shoe were facing downwards.

2. The deceased was more on his back than his side. The head was turned with the left side facing down and right cheek exposed. There was a large amount of sand and soil adhering to the front part of his face. Further sand was evident within the nostrils and mouth. Bodily fluids were leaching from the nose. The fluids had the appearance of blood.

484. Dr I’Ons’ opinion as to the deceased being in a face down position extended, not only to the proposition that the deceased was in a “prone position” per se, but that the deceased had been in a prone position for “a significant period of time”. Professor Duflou opined, correctly in my view, that there was no evidence that the deceased must have been in a face-down position for a prolonged period of time. It is simply unknown on the evidence how long the deceased was in a prone position although it is known that he was not in a prone position for the whole of the time from his arrival until the accused departed the crime scene. That is because, at the least, the deceased was found in a supine position and, as I will mention shortly, was dragged to the position when he was found in a face-up position.

485. The description of being in a “prone position” is a broad, umbrella term that encompasses a variety of positions in which a person is lying face down on the ground. Within the broader term “prone position”, one may be in a prone restraint position, that is, on Professor Duflou’s evidence, where a person is in a prone position, their hands and feet are restrained, and there was pressing down on the trunk. A prone restraint position may result in death by positional asphyxia as that concept was defined in the evidence by reference to the Steinberg Paper. This involves the body position being interfered with or preventing ventilation or normal gas exchange; evidence that the individual was unable to move to another position; and a clear exclusion of other causes of death in the Autopsy Report.

486. Dr I’Ons suggested that the deceased was in a prone restraint position and that that contributed to his death by asphyxia, although it should immediately be made clear that the mere fact that one is in a prone position does not mean they are in a prone restraint position. When cross-examined, Professor Duflou accepted that the deceased was restrained because he had his arms and feet bound. However, Professor Duflou emphasised that there is no evidence of persons placing pressure on the trunk of the deceased at the same time as the restraint. The point of Professor Duflou’s evidence, which was well made, was that the restraint asphyxia causes or contributes to death, not because of restraint to the limbs and the prone position per se, but also pressure being applied to the trunk of the restrained person. Further, when consideration is given to the criteria in the introduction of the Steinberg Paper relied upon by Dr I’Ons (although the paper was not produced to the Court), there is also no evidence that the deceased was unable to move to another position and it may be doubtful that there was a clear exclusion of other causes of death based on findings from the autopsy viz-a-viz methamphetamine toxicity.

487. I agree with Professor Duflou that there is no evidence of pressure on the deceased’s trunk as required in the classic exposition of restraint asphyxia. The Crown put to Professor Duflou that the deceased’s injuries to the front of his shoulders and top of his knee are consistent with the deceased being in a prone restraint position at some time during this incident and encountering such pressure. However, Professor Duflou did not consider that pressure to the trunk will cause bruising to the front of the body although the injury may be explained by a person in a prone position moving, or being dragged, against the surface that they are lying on. Based on common experience, I agree that a person does not, without more, get bruising from simply lying on the ground. Again, bruising would be unusual, as suggested by Professor Duflou, to the shoulders if a person’s hands were tied behind their back in a restraint position unless there was some extra, additional force, such as if the shoulder was impacted against the ground. Overall, I accept Professor Duflou’s evidence that a direct impact to the shoulder was the most likely explanation to the deceased’s shoulder injury rather than a transmitted force impact. That is the usual way in which a bruise of the kind found in the autopsy would have occurred. Professor Duflou also ruled out, correctly in my view, bruising from being dragged as that would tend to leave abrasions.

488. I will return to questions of suffocation after considering some further aspects of the evidence. The deceased was dragged to the place where his body was found. It was most likely he was dragged with his heels on the ground. That interpretation is consistent with the furrows in the ground that can be seen at Marker Q. The evidence from Detective Senior Sergeant Moon was that there was no movement in those furrows suggestive of a struggle.

489. The Crown sought that an inference be drawn in that respect that the deceased was either deceased or unconscious at the time his body was moved, as the tracks showed no movement.

490. Senior counsel for the accused criticised Dr I’Ons’ evidence in that respect, namely, that the drag marks were consistent with someone who was either unconscious or dead, in that Dr I’Ons failed to consider the deceased could have been conscious but bound. That possibility was noted by Professor Duflou although he did not exclude the other possibilities to which Dr I’Ons referred. In the absence of contradictory evidence, it must be accepted that the three possibilities are available in this case.

491. When found, the deceased was lying partially on his back and left side. His head was turned with the left side facing downwards and right cheek exposed. There was a considerable amount of sand and soil adhering to the front part of his face. Further, sand was located within his nostrils and mouth.

492. On the evidence, I accept that, at some point, after the commencement of the assault upon the deceased and before he was found there was packing tape wrapped around his head which covered his mouth and nose albeit with a gap left through which the deceased’s nose protruded.

493. Detective Senior Sergeant Moon conducted an experiment to establish whether the tape lying on the ground to the side of the deceased’s face, when raised over the face (without touching it), fitted the deceased’s face. He concluded it did. Further, he established that the tape would have apparently joined the remainder of the tape on the right side of the face. He was also able to match the dirt on the deceased’s face with the adhesion on the tape and the position of the deceased’s nose relative to the cut in the tape to accommodate the nose. I have accepted Detective Senior Sergeant Moon’s evidence which accords with Professor Duflou’s evidence in this respect.

494. Professor Duflou stated that it also appeared that the nostrils or at least the lower part of the nose were not covered by the tape. This accords with the evidence that some part of the nostrils of the deceased were unoccluded by the tape.

495. I accept Detective Senior Sergeant Moon’s evidence that the tape had been released from the deceased’s face in the orientation of the face when the deceased’s body was found. There was evidence that the tape was not cut as none of its ends were cut but rather torn at the edges.

496. The evidence would suggest that the tape was torn from the deceased’s face when the deceased was at the location at which he was found. This is consistent with the fact that the tape around the deceased’s face was not strongly adhering to the back of his head and was not in situ over the face of the deceased. Because it was not strongly adhering to the back of the deceased’s head, the Crown contended that “it is likely that the gag was removed at that final place”. The evidence was it was difficult to break the tape and it stretched to break. I agree with that submission, but the evidence does not establish a particular timeframe in which the tape was removed.

497. Given the deceased was bound by his wrists and ankles when found, the tape across his mouth and nose must have been removed by a person other than the deceased. The evidence reveals that neither Mr Devlin, who found the deceased, nor the police officers who first attended the crime scene, removed the packing tape from the deceased’s mouth.

498. I do not consider the evidence was consistent with the packing tape falling off the deceased’s face whilst he was being dragged across the ground. The tape was robust and resisted breaking unless cut or torn at the edges. Further, Detective Senior Sergeant Moon opined that the deceased was likely dragged with his body on a diagonal slope such that his shoulders were lifted and his feet touching the ground. On this scenario, there would not be the occasion for the tape to fall or be pulled off during the movement of the deceased to his final location.

499. LM was involved in binding the deceased. He was untruthful to police when he said he played no active part in the assault and detention of the deceased. To this, it may be added his constant activity from the activity tracker on his phone.

500. The evidence of LM in his ERISP was that he “rolled [the deceased] over” and, at that time, “[the deceased] was just sort of groaning. You could hear him, you know … He was lying on the ground. He wasn’t saying anything”. LM said the deceased was “on his side, after I rolled him” (and answered affirmatively to the proposition “you rolled [the deceased] on his side”) and stated that “I just thought [the deceased] was unconscious”. He did not know if the deceased’s eyes were open or not. The reason why LM “rolled him on his side” was “so he wouldn’t choke on his tongue”.

501. Senior counsel for LM submitted that the Court would be inclined to accept that account even though it was plain that LM had lied in other parts of his ERISP. She submitted that the Court would accept this proposition because it accorded with the “practical experience”. I am inclined to accept this submission. Even though the deceased was dragged to the location where he was found in a face up position, the position that he was ultimately found in did have him leaning to one side in a manner not inconsistent with the account given by LM, namely, that he was in a recovery position.

502. I also agree with Senior counsel for LM that it may be inferred that around this time the tape had been removed from the deceased’s mouth. Working backwards, it can be inferred from the fact that Mr Devlin and the first responders who located the deceased did not themselves remove the tape, and therefore, it had been torn off before their arrival. As mentioned, it would have been impossible for the deceased to have torn off the tape himself because his hands were tied behind his back. The only available inference is that, by the time of the departure of the accused and WD, the tape had been removed from the deceased’s mouth. This is fortified by the evidence that LM heard the deceased groaning, which was most likely to occur if the deceased’s mouth was not occluded.

503. It may be accepted that the accused left the area quite promptly after the deceased was situated in the position in which he was found.

504. Contrary to the submissions of the Crown and for the reasons given in my judgment, I consider that the police experiment as to the time that it would have taken the accused and WD to walk from the crime scene to WD’s home was at least 30 minutes, should be accepted. This was the shorter of the time periods in the time range estimated by the police.

505. I turn then to my conclusions as to the issues considered during the course of concurrent evidence.

506. I have concluded that, in considering the survival time after the brain injury suffered by the deceased, the Court should apply the well-established or conventional approach in medical literature and learning: positive axonal injury may be observed by a β-APP stain if the survival time between the brain injury and death is no less than 35 minutes (or on Professor Duflou’s concession, 30 minutes). I have rejected the application of a shorter minimum survival time suggested by Dr I’Ons based upon the new theory espoused in the Al-Surraj Paper for road traffic collisions, for reasons given in my judgment.

507. I accept the submission for AN that the Court must not accept scientific evidence disputed by the defence that is unfavourable to the accused unless there is good reason to reject the defence evidence. For the reasons given in my judgment, I do not consider there is a good reason to reject the evidence of Professor Duflou as to the interpretation and application of medical literature as to survival time between axonal injury to the brain and β-APP positivity.

508. There is a further consideration in this respect. If it were not possible to reach such a conclusion on the evidence and the Court was left thereby with an unresolvable conflict as to the literature on β-APP reactivity and survival time as between the experts, then the direction as to exceptional cases on the expert evidence would apply (see [72] of my judgment). That direction requires that, if the Court is incapable of resolving a conflict between experts on matters of science and the conflict relates to an area where the Court cannot resolve that conflict in a manner which would eliminate reasonable doubt, the accused must be acquitted. Save for the conclusions I have reached as to the medical opinions and literature, this would be such a case because of the significance of the evidence of axonal injury and survival time to causation.

509. This conclusion has significant implications for the question of whether the deceased died, as submitted by the Crown and as found in the Autopsy Report, by the combined effect craniofacial trauma with airway obstruction.

510. In order to understand the consequences of my finding as to axonal injury and β-APP reactivity, it is necessary to briefly revisit the facts as I have found them as follows.

1. The deceased died between 3.33pm and 4.45pm; the former being the time the deceased and AN arrived at the crime scene;

2. The accused and WD arrived at WD’s home after departing the crime scene at 4.30pm;

3. The interval between the accused arriving at the crime scene and arriving at WD’s home is 57 minutes;

4. The walk from the crime scene to WD’s home is between, on the shortest estimate, 35 minutes and 30 seconds and, on the longest estimate, 40 minutes and 30 seconds; and

5. If the lesser time is selected (that is, the shortest walking time), the accused left the crime scene at 3.55pm, having been there for 22 minutes.

512. It follows that, if the deceased suffered axonal injury from the outset of being assaulted by the accused and WD, the deceased would have died after the accused left the crime scene because the minimum survival time was, on Professor Duflou’s concession, 30 minutes. Again, as I have found, at the time the accused left the scene, the packing tape had been removed from his mouth.

513. On that basis, and putting aside prone restraint asphyxia, which I have rejected, Professor Duflou concluded that the deceased could not have died from airway obstruction as his mouth would have been open or able to be opened, his nose was not fully occluded (even when affected by dirt and blood, the nasal passage remained open to air flow) and he was in a recovery position with patent airways.

514. The Crown’s submission that Professor Duflou conceded that the deceased could have died from airways obstruction if the “gag” remained in place omitted the significant caveat introduced by Professor Duflou. He conceded that, if the mouth and nose were obstructed by the gag then death may, and probably would, follow. But his evidence was that this was “not as shown here and not as calculated”. Professor Duflou observed that, at best, what the Crown had demonstrated was “a transient period of time, undefined” where “the body was face down or parts of the body was face down”.

515. In relation to airways obstruction, the starting point of the Crown’s position was the Autopsy Report. As identified by Dr I’Ons in oral evidence, that report principally concerned suffocation or positional asphyxia. In terms of suffocation, even though the Crown listed a range of factors in their closing submissions, the Autopsy Report specifies a number of mechanisms contributing to the death of the deceased including the apparent obstruction of the mouth with packing tape; the dirt around and within the mouth; the facial injuries including the fractured nose and the prone position of the deceased. Dr I’Ons also relied upon the deceased being potentially unconscious and thereby unable to protect his airways.

516. Despite a reference to an “apparent obstruction” by a gag as such a mechanism in the Autopsy Report, the conclusions in the Autopsy Report plainly relied on, not just the evidence of a gag over the deceased’s mouth at some point, but that the gag was present at the time when the deceased was found. I was not persuaded by Dr I’Ons’ concurrent evidence to the contrary. It is clear from the cross-examination of Dr I’Ons that the Autopsy Report is predicated on the presence of the tape over the deceased’s mouth when he died.

517. The Autopsy Report thus proceeded on a flawed premise. That flaw in the Autopsy Report was fundamental when the question of obstruction of airways comes to be considered in the light of the findings that I have thus far made, namely, by the time the accused and WD departed the crime scene and when the deceased died, there was no presence of a gag or tape over his mouth.

518. There are two related considerations which may be dispensed with promptly before returning to the issue of suffocation.

519. The first is the theory by Dr I’Ons that either the deceased was the subject of restraint asphyxia and/or was suffocated by the cushion effect of sand when in a prone position. I have rejected those theories in my judgment, but it is important to note that the cushion theory did not form any part of the basis for suffocation or positional asphyxia identified in the Autopsy Report. The significance of the cushion theory is that, as contended by senior counsel for AN, it was developed in the light of the obvious difficulty for the Crown case that the deceased’s airways were patent – there was no dirt or debris found in the airways or stomach. In any case, the explanation for the cushion theory for reasons given in my judgment is unconvincing.

520. The second feature is that there is evidence advanced that the deceased was likely concussed at some point. However, there is no proof that the deceased was necessarily unconscious for any extended period of time.

521. It is against that background that the Crown identified in its oral submissions the mechanisms, which were said to demonstrate airway obstruction and thus suffocation. The Crown Prosecutor submitted seven factors that lead to obstruction of airways: (1) the brain injury with a capacity to cause concussion; (2) broken nose causing swelling and bleeding, which causes pain; (3) the nostrils were occluded by dirt; (4) the existence of the packing tape which covered the deceased’s mouth and partly over his nose during the melee; (5) entrenched sand and debris in his teeth and on the packing tape, which suggested the deceased’s face having been pushed into sandy soil prior to him being gagged; (6) the deceased was in a prone position during the melee as evidenced by the injury to the front of his shoulder, staining on the front of his thighs, grass on inner singlet and stomach area; and, (7) there was clear evidence of restraint, which restricts the ability to breathe.

522. I note, at the outset, for the reasons given in my judgment, that I do not accept that the presence of petechiae is indicative of suffocation or obstruction or the airways in the case of the death of the deceased.

523. It was accepted by both Professor Duflou and Dr I’Ons that total occlusion of the nostrils and mouth is not required for suffocation. It is the Crown’s case that the combination of evidence of dirt in the deceased’s nostrils, and the broken and bleeding nose, that there has been at least a substantial, if not total, occlusion of his airways through his nostrils. The Crown submitted, in closing, that the deceased did not necessarily die when the gag or packing tape was over his mouth.

512. Senior counsel for AN referred to the evidence of Professor Duflou that, if the deceased survived the period when the tape was over his mouth, he would not die of airway obstruction after it was removed simply because his mouth was covered at some point, even with the circumstances of debris in the mouth and other circumstances.

513. In the circumstances of this case, I am not satisfied to the requisite criminal standard, beyond a reasonable doubt, that there had been airway obstruction. Once it is accepted that the packing tape was torn when the accused and WD left the crime scene and the deceased was still alive without the obstruction over his mouth, it follows that his mouth would have been open or able to be opened. Even if one were to accept the Crown’s submission that breathing through the nostrils was substantially occluded by the swelling in the broken nose and dirt around the rim of the nostrils, there is still the possibility that the deceased could have been able to breathe through his mouth. I am not satisfied, from reviewing the photographic evidence, that the amount of sand, dirt, and vegetable matter, which was largely attached to the deceased’s teeth and gums, had the effect obstructing the deceased’s ability to breathe through his mouth. This reasonable possibility is fortified by the fact that the airways were patent. There was no sand, dirt or vegetable matter found in the trachea, lungs, and airways. I agree with Professor Duflou that there is a reasonable possibility that, once the deceased survived the period when the tape was over his mouth, he would not die of airway obstruction after it is removed.

514. I found that Dr I’Ons’ evidence that the deceased, in the circumstances of his assault, restraint and detention, had a high demand for oxygen, to be very compelling. However, even assuming the Crown’s submission that breathing through the nostrils was substantially occluded, there was no evidence that, in the circumstances of high oxygen demand, there would be an obstruction of airways amounting to causing death. I found Professor Duflou’s answer in cross-examination as to the ability to breathe through the mouth in circumstances of high oxygen demand to be measured and clear. Based on common experience, I agree with Professor Duflou that one can still breathe through their mouth, albeit with difficulty and uncomfortableness, following activities that demand high amounts of oxygen. The Crown did not negative the possibility raised by the accused.

515. The Autopsy Report stated the “combined effects of the blunt force injuries may have resulted in a reduced level of consciousness or unconsciousness and an inability to self protect the airway”. This observation was made before Associate Professor Buckland’s report was released. That report resulted in a consensus that the deceased may well have been concussed (the severity being unknown) but, as Professor Duflou opined, given the extent of the injuries found, it was most likely that any unconsciousness would be for a short period of time or, alternatively, the deceased would not be unconscious but rather dazed.

516. The Autopsy Report also described that the deceased had a “comminuted fracture nasal bones”. I accept the view of Professor Duflou that the nature of such a fracture would not cause a severe obstruction of airways.

517. It was the common view of Dr I’Ons and Professor Duflou that heart disease is a frequent accompaniment to methamphetamine long-term use as the drug has an effect on the heart, and that death from methamphetamine overdose often occurs where cardiac disease is present.

518. The deceased had no acute or chronic heart disease and his heart was unremarkable. However, in the opinion of Professor Duflou, this fact did not exclude death due to methamphetamine toxicity. He opined that, in terms of an “age-appropriate heart” 30-40% of fatal cases related to methamphetamine use alone.

519. Dr Drummer and Dr I’Ons were of the view that death from heavy doses of methamphetamine by itself without any associated factor is very uncommon, but that such deaths do occur. Dr Drummer suggested that the deaths usually occur with a blood concentration of greater than 2.0 mg/L.

520. The Crown reinforced the limitation by reference to the common use of the drug in the community and that death from the use of the drug is nonetheless uncommon. Reference was made to the need to have regard to tolerance and drug distribution, and in the former category, the deceased was a regular use of the drug without apparent adverse effect.

521. There was no correlation between the amount of methamphetamine and its toxicity and effect.

522. However, central to the thesis of Professor Duflou was the following:

1. Methamphetamine has a very poor dose relationship. In other words, persons consuming methamphetamine may die at lower or higher concentrations.

2. In order to consider whether a person has died from methamphetamine toxicity, it is necessary to take into account the level of the drug. In the present case, the level of the drug in the deceased was in the centre “of what you could expect it to be in cases who have overdosed on methamphetamines”.

535. As to the existence of anxiety or stress arising from the assault of the deceased or him engaging in a combat situation, Professor Duflou agreed that stress, whether physical or mental, can increase the heart rate and have a similar effect to methamphetamine in that respect. However, when asked if the coexistence of stress and anxiety and the related adrenaline effects and the effects of methamphetamine are both present, would he agree that it could not be methamphetamine alone as a reasonable cause of death in the present situation, Professor Duflou did not agree that methamphetamine toxicity alone could be excluded as a reasonable cause of death. He stated in that respect: “I mean the alternative that has been suggested is methamphetamine had no effect on this case, you know, it was a negligible, if any, effect”. He continued to opine that methamphetamine did have an effect here and that there is certainly enough in this matter for methamphetamine on its own to cause death, particularly when the other asserted causes of death are “not that impressive”.

536. Based on the medical research upon that question, which he considered in detail, Professor Duflou opined that the level of methamphetamine found in the deceased was typical of death due to methamphetamine overdose, accepting that it was not possible to state that death would necessarily be the result of methamphetamine in this case.

537. His opinion in that respect was that, in the absence of another definitive cause of death, methamphetamine overdose was a reasonable cause of death and one that could not be positively excluded as a cause of death in this case.

538. Dr I’Ons’ opinion was that methamphetamine toxicity should be rejected as a cause of death because of the absence of an underlying cardiac disease and the existence of another identifiable cause of death, namely, craniofacial trauma and airway obstruction. However, he accepted that if the latter factor was absent, then he would have considered methamphetamine as a potential reason.

539. In my view, the opinion of Professor Duflou in this respect should be preferred to that of Dr I’Ons.

540. Professor Duflou’s eminence on the question of methamphetamine toxicity is well-recognised. His opinions were firmly founded upon his own qualifications and experience and his analysis of medical literature to which he himself had contributed. There was not, in my view, a convincing challenge to those opinions. In many respects, Dr Drummer and Professor McGregor were aligned with Professor Duflou’s opinion.

541. Dr I’Ons’ reliance upon animal studies to demonstrate that methamphetamine may be administered in increasing doses without a cardiac response leading to death was misplaced and without foundation. The paper relied upon by Dr I’Ons had no relevant connection to the proposition that he was advancing and further, Professor Duflou’s short but extensive investigation of the proposition after it was first raised at the end of concurrent evidence, demonstrated that there was no basis to the hypothesis advanced by Dr I’Ons.

542. As to tolerance, being the ability of an organism to sustain higher levels of drug relevant to a naïve user, Professor Duflou opined that tolerance can be lost. Professor McGregor referred to “sensitisation”, meaning that the effects of the drug may actually become more pronounced over time.

543. In all the circumstances, I do not consider the Crown has established to the requisite standard that the deceased died by the combined effect of craniofacial injuries and airways obstruction. Further, I do not consider the Crown has excluded, as a reasonable hypothesis, the possibility of another cause of death, namely, methamphetamine toxicity.

544. It follows, in my view, that the Crown has not established, on the evidence, when approached in a common sense way, the acts of AN or LM were a substantial or significant cause of death of the deceased.

545. AN and LM each pleaded guilty to the foundational offence. I accept those pleas and will convict each of the accused of that offence.

546. I find and return a verdict that AN is not guilty of the charge of murder.

547. AN is convicted of the charge that on 2 February 2020, at Broulee in the State of New South Wales, he detained the deceased without his consent and with the intention of committing a serious indictable offence, namely, assault occasioning actual bodily harm, in circumstances of special aggravation, namely, AN, LM and WD were in the company of each other and, at the time of the detention, actual bodily harm was occasioned to the deceased.

548. I find and return a verdict that LM is not guilty of the charge of murder.

549. LM is convicted of the charge that on 2 February 2020, at Broulee in the State of New South Wales, he detained the deceased without his consent and with the intention of committing a serious indictable offence, namely, assault occasioning actual bodily harm, in circumstances of special aggravation, namely, AN, LM and WD were in the company of each other and, at the time of the detention, actual bodily harm was occasioned to the deceased.

550. I publish my judgment.

551. The Crown Prosecutor and senior counsel for AN and LM should confer as to a timetable for the sentencing of the offenders, AN and LM, and provide in that respect a timetable to my Chambers by Short Minutes of Order. They have liberty to approach my Chambers to that end. If a directions hearing is required, then similarly a communication to my Associate will result in the matter being listed accordingly.

**********

Decision last updated: 08 November 2022