R v Bayliss

[2020] NSWDC 768

District Court

New South Wales

Medium Neutral Citation:

R v Bayliss [2020] NSWDC 768

Hearing dates:

25 May - 15 June, 7 July, 21 July 2020

Date of orders:

3 August 2020

Decision date:

03 August 2020

Jurisdiction:

Criminal

Before:

Bright DCJ

Decision:

Count 1 – Not Guilty

Count 2 – Guilty

Count 3 – Guilty

Count 4 – Guilty

Catchwords:

CRIMINAL PROCEDURE — Trial — Judge alone

EVIDENCE — Identification evidence — Picture identification – Delay - Facebook – Displacement effect

EVIDENCE – Circumstantial identification evidence – Post-offence conduct – Consciousness of guilt - Admissions

Legislation Cited:

Criminal Procedure Act1986 (NSW)

Crimes Act1900 (NSW)

Cases Cited:

Fleming v R (1998) 197 CLR 250; HCA 68

Category:

Principal judgment

Parties:

Regina (Crown)
Jacob Bayliss (Accused)

Representation:

Counsel:
Mr D Stewart (for the Accused)

Solicitors:
Mr D Henschell (Solicitor Advocate for the Crown)
Mr J Murray (for the Crown)
Mr R Hill (for the Accused)

File Number(s):

2019/00033596

Publication restriction:

Nil

Judgment

Background

1. On 25 May 2020 Jacob Bayliss (the accused) appeared before Gosford District Court for trial.

2. A judge alone election had been filed pursuant to s 132, Criminal Procedure Act1986 (NSW). The Crown consented to the judge alone election. Accordingly, the trial proceeded as a judge alone trial.

3. The accused was arraigned on an indictment in the following terms:

1. Count 1 – On 8 June 2014, in Booker Bay in the State of New South Wales, broke and entered the dwelling house of Paul Johnson and Jake McDonald at 2/15 Bogan Road Booker Bay, and then in the said dwelling house committed a serious indictable offence, namely, recklessly wounding Jake McDonald, in circumstances of aggravation, namely Jacob Blake Bayliss knew there was a person or persons present in the dwelling house, and in circumstances of special aggravation, namely, Jacob Blake Bayliss was armed with a dangerous weapon, namely, a firearm (s 112(3), Crimes Act 1900 (NSW)).

2. In the alternative to Count 1

Count 2 - On 8 June 2014, in Booker Bay in the State of New South Wales, did enter the dwelling house of Paul Johnson and Jake McDonald at 2/15 Bogan Road Booker Bay NSW, with intent to commit a serious indictable offence therein, namely, robbery, in circumstances of aggravation, namely Jacob Blake Bayliss knew that there was a person or persons in the dwelling house, and in circumstances of special aggravation, namely, Jacob Blake Bayliss was armed with a dangerous weapon, namely, a firearm (s 111(3), Crimes Act 1900 (NSW)).

3. In the alternative to Count 1

Count 3 - On 8 June 2014, at Booker Bay in the State of New South Wales, did wound Jake McDonald and was reckless as to causing actual bodily harm to Jake McDonald (s 35(4), Crimes Act 1900 (NSW)).

4. Count 4 - On 8 June 2014, at Booker Bay in the State of New South Wales, did wound Paul Johnson and was reckless to causing actual bodily harm to Paul Johnson (s 35(4), Crimes Act 1900 (NSW)).

4. The accused pleaded not guilty to each count.

5. Mr Henschell, Solicitor Advocate, appeared for and on behalf of the Director of Public Prosecutions.

6. Mr Stewart of Counsel appeared for and with the accused.

7. The trial proceeded between 25 May 2020 and 15 June 2020. The trial was also mentioned before the Court on 7 and 21 July 2020.

8. It is alleged by the Crown that shortly before 2.00 am on 8 June 2014 the accused entered the unit of Jake McDonald and Paul Johnson at 2/15 Bogan Rd, Booker Bay. Mr McDonald’s girlfriend, Tania Bain, was also staying at the unit. It is alleged that the accused was wearing a balaclava and had a pistol and a knife in his possession.

9. It is alleged that the accused confronted Mr McDonald in his bedroom and pointed a pistol at him. Mr McDonald took hold of the pistol and wrestled with the accused. Mr McDonald was not aware of what happened to the pistol. Mr Johnson came from the lounge room to the hallway after hearing Mr McDonald calling out. It is alleged the accused then produced a knife and stabbed both Mr McDonald and Mr Johnson. At some stage, the accused had demanded money from Mr McDonald.

10. Ms Bain became involved at some stage and removed the accused’s balaclava before she then left the unit to seek assistance from a neighbour. Whilst at the neighbour’s house, Ms Bain saw a white Holden Commodore station wagon with black roof rails quickly drive away.

11. It is the Crown case that the accused was not known to the occupants of the unit.

12. The fact in issue in the trial is the identification of the accused as the intruder.

13. The Crown case at trial relies upon the identification of the accused by Mr McDonald (from a Facebook photo and a chance meeting at the Wyong Probation and Parole office) and Ms Bain (from a photo identification procedure conducted on 18 August 2019).

14. The Crown also relies upon circumstantial evidence namely, that the balaclava being worn by the intruder belongs to the accused, that the accused had access to a vehicle that matched the description of the getaway vehicle, admissions made by the accused in gaol calls and post offence conduct that demonstrates a consciousness of guilt (an attempt to influence the evidence of a witness).

15. The accused did not give evidence in the trial. The defence case is that the identification of Mr McDonald is of no probative value because firstly, he was aware of the name of the accused before he found the Facebook photo and secondly, the identification at the Wyong Probation and Parole office is tainted because of the displacement effect. Further, the identification evidence of Ms Bain is also of no probative value because she was not an honest witness and the identification is unreliable. Specifically, there were a number of physical characteristics of the intruder that were inconsistent with the physical appearance of the accused or make it improbable that he was the intruder.

16. One of the characteristics of the intruder described by Mr McDonald was a rotten front tooth. Evidence was called in the defence case from a dentist Dr Yang, to establish that it was unlikely that the accused would have had a rotten tooth in 2014 having regard to extensive dental work carried out in 2012.

17. In relation to the circumstantial evidence, in circumstances where two other DNA profiles were found on the balaclava other than that of the accused, the defence case is that the Crown cannot exclude that someone other than the accused has worn the balaclava. Further, the defence case is that the gaol calls are not capable of amounting to admissions and the evidence relied upon as consciousness of guilt can be explained by panic as a result of the accused being confronted with a false accusation. It was conceded that the description of the getaway vehicle was some circumstantial evidence capable of implicating the accused in the offences.

General Directions

18. In compliance with ss 133(2) and 133(3), Criminal Procedure Act 1986 (NSW) and as required by the decision of the High Court in Fleming v R (1998) 197 CLR 250; HCA 68, I remind myself of the following principles of law.

19. As the accused has pleaded that he is "not guilty" to the counts on the indictment and elected trial by Judge alone it becomes my duty and responsibility to consider whether the accused is "guilty" or "not guilty" of each count and to return my verdict according to the evidence that I have heard.

20. It is for me to assess the various witnesses and decide whether they are reliable. I note that the reliability of any witness depends upon two quite different, but sometimes overlapping, considerations: one is the witness’s honesty; the other is the witness’s accuracy. The honesty of a witness involves considering not only what the witness said (or perhaps did not say) but also the impression that the witness made upon me.

21. I have heard and received final submissions from the Crown and Mr Stewart. I will consider the submissions that have been made in the addresses and give to the submissions such weight as I think they deserve. I note that in no sense are those submissions evidence in the trial.

22. I note that as the tribunal of fact I am expected to use my individual qualities of reasoning, my experience, my understanding of people and human affairs, and my common sense.

23. I acknowledge that I have very important matters to decide in this case - important not only to the accused but also to the whole community. I must act impartially, dispassionately and fearlessly. I must not let sympathy or emotion sway my judgment.

24. As the sole judge of the facts I must not act capriciously or irrationally. I am obliged to determine all relevant issues of fact according to the evidence that has been presented during the course of the trial. That evidence includes the oral evidence of the various witnesses called and the various exhibits including the statements of numerous witnesses not called to give oral evidence, tendered either in the Crown or defence cases.

25. I note that in relation to accepting the evidence of a witness, I am not obliged to accept the whole of the evidence of any one witness. I may if I think fit, accept part and reject part of that witness’ evidence.

26. I remind myself that I may, in my role as judge of the facts, draw inferences from the direct evidence. Inferences may be valid or invalid, justified or unjustified, correct or incorrect. I may only draw an inference from proven facts if such inference is the only reasonable inference that can be properly drawn from the proven facts.

27. I now direct myself on the onus of proof. This is a very important direction. This is a criminal trial of a most serious nature and the burden of proof of guilt of the accused is placed on the Crown. That onus rests upon the Crown in respect of every element of the charge. 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. I warn myself that suspicion is not a substitute for proof beyond reasonable doubt.

28. It is, and always has been, a critical part of our system of justice that persons tried in this Court are presumed to be innocent, unless and until they are proved guilty beyond reasonable doubt. Unless the Crown succeeds in proving each and every one of the essential ingredients or elements of the charges beyond reasonable doubt, then the accused must be found "not guilty" of the charges.

29. The words "beyond reasonable doubt" are ordinary everyday words and that is how I understand them. If, at the end of my deliberations, having taken into consideration the evidence both for the Crown and for the accused in respect of any matter which the Crown must establish to make out its case, and after also taking into consideration the submissions made to me by each of the counsel in their addresses, I am not satisfied that the Crown has established any one of these essential matters beyond reasonable doubt then it is my duty, to bring in a verdict of "not guilty", because the Crown will have failed to do what the law requires it to do.

30. I remind myself that it is vitally important that I clearly understand that the accused must be found "not guilty" if his guilt has not been proved to my satisfaction beyond reasonable doubt. It follows from this, of course, that if I am left unable to decide whether the Crown has proved its’ case in relation to any such essential element, even though I may feel that the accused may be guilty, if I have a reasonable doubt in respect of that matter, the accused is entitled to the benefit of that doubt and I must find him not guilty.

The accused gave a police record of interview

31. On 19 December 2018, the accused participated in an interview with police (Exhibit 4). The accused denied the allegations.

32. I direct myself that if I accept the account relied upon by the accused in his interview with police, then I must find him not guilty.

33. If I find it difficult to accept the account relied upon by the accused in his interview with police but I think it might be true, then I must find him not guilty.

34. If I do not believe the accused’s account relied upon by the accused in his record of interview with police, then I should put it to one side. Nevertheless, the question remains whether the Crown, upon the basis of the evidence that I do accept, has proved the accused’s guilt beyond reasonable doubt.

The accused did not give evidence

35. The accused has not given any evidence in the trial in response to the Crown’s case.

36. There are a number of important directions of law in relation to that fact.

37. I remind myself that although an accused person is entitled to give or call evidence in a criminal trial, there is no obligation upon him to do so.

38. As I have already pointed out, the Crown bears the onus of satisfying me beyond reasonable doubt that the accused is guilty of each of the offences charged.

39. The accused bears no onus of proof in respect of any fact that is in dispute. I remind myself that he is 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 offences charged. Therefore, it follows that the accused is entitled to say nothing and make the Crown prove his guilt to the high standard required.

40. I direct myself, as a matter of law, that the accused’s decision not to give evidence cannot be used against him 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. 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 any gaps that I might think exist in the evidence tendered by the Crown. It cannot be used in any way as strengthening the Crown case or in assisting the Crown to prove its case beyond reasonable doubt.

41. I must not speculate about what might have been said in evidence if the accused had given evidence.

The accused called evidence in the trial

42. The accused called evidence in answer to the case led by the Crown in the trial.

43. I remind myself that there is no obligation on the accused to persuade me to accept that evidence. If that evidence leaves me with a reasonable doubt as to whether the Crown has made out its case in respect of any element of an offence or any essential fact that it must prove, then I am bound, in law, to bring in a verdict of “not guilty”.

44. If at the end of my deliberations I find that the Crown has failed to eliminate a reasonable possibility that the version presented by the defence is true, then the Crown has failed in its obligation to persuade me of the accused’s guilt beyond reasonable doubt.

Identification evidence

45. Both Mr McDonald and Ms Bain identified the accused as the intruder. I direct myself that evidence that the accused has been identified by Mr McDonald and Ms Bain must be approached by me with special caution before I accept it as reliable.

46. These directions relate only to the reliability of the identification evidence given, not to the honesty of the witnesses. A witness may be honest but that does not necessarily mean that the witness will give reliable evidence.

47. Because the witness who gives evidence of identification honestly and sincerely believes that their evidence is correct, that evidence will usually be quite impressive, even persuasive. So here, even if I thought Mr McDonald and Ms Bain were entirely honest in the evidence that they gave, I must still approach the task of assessing the reliability of their evidence with special caution.

48. So, special caution is necessary before accepting identification evidence because of the possibility that a witness may be mistaken in their identification of a person accused of a crime.

49. The experience of the criminal courts over the years, both in Australia and overseas, has demonstrated that identification evidence may turn out to be unreliable. There have been some notorious cases over the years in which evidence of identification has been demonstrated to be wrong after innocent people have been convicted.

50. I must carefully consider the circumstances in which each witness made their observation of the person. The circumstances in which the witness made their observation of the person can affect the reliability of identification evidence.

51. I remind myself that there are a number of matters that I should consider that may affect the reliability of the identification evidence:

• On the Crown case the accused was a stranger to both Mr McDonald and Ms Bain. It is obviously harder to identify strangers than it is to identify people who are well known to us.

• What opportunity did each witness have to make their observation of the person?

• Did the witness focus their attention on the person or was it just a casual sighting that did not have any significance for the witness at the time?

• In what light were the initial observations made?

• Was there anything about the person observed which would have impressed itself upon the witness?

• Was there any special reason for remembering the person observed?

• Was the witness under any stress or pressure at the time? If a witness is under any stress or pressure at the time of the initial observation, I must consider how that might have affected their ability to accurately observe the person and store the image of the person’s appearance in their memory.

• When was each witness first asked for a description of the person and how fresh would the witness’ memory have been at that time?

• How did the description given by each witness compare with the physical appearance of the accused?

• How long was it between the sighting of the person and the giving of the original description to the time that each witness identified the accused?

52. I must give consideration to each of those matters. Any one of those circumstances may possibly lead to error. I will address those matters and other relevant considerations later in my remarks.

53. In this case more than one witness has identified the accused. This is a matter that I may take into account in determining how strong the evidence is. However, this does not mean that there is necessarily less chance that a mistake has been made. Two or more honest witnesses can be just as mistaken as one.

Circumstantial evidence

54. In this case, the Crown relies partly on circumstantial evidence. In relying upon circumstantial evidence, the Crown asks me to find certain basic facts and then from those facts to draw a conclusion as to the existence of a further fact.

55. Where the Crown’s case depends in part on circumstantial evidence, I am asked to reason in a staged approach. The Crown first asks me to find certain basic facts established by the evidence. Those facts do not have to be proved beyond reasonable doubt. Taken by themselves they cannot prove the guilt of the accused. I am then asked to infer or conclude from a combination of those established facts and any facts I accept are established by direct evidence that a further fact or facts existed. The ultimate fact the Crown asks me to find is that an accused person is guilty of the offences charged.

56. When I am evaluating the circumstantial evidence, it is wrong to consider any particular fact in isolation and ask whether that fact proves the guilt of the accused, or whether there is any explanation for that particular fact or circumstance which is inconsistent with the accused’s guilt. Rather, I should consider all of those facts together as a whole and in combination with any facts I am satisfied are established by the direct evidence and ask myself whether I can conclude from all the evidence that the accused is guilty of the offences charged.

57. The Crown must exclude any reasonable possibility that the accused did not commit the offences.

Consciousness of guilt – post-offence conduct

58. In order to prove the offences beyond reasonable doubt, the Crown also relies on the conduct of the accused after the commission of the alleged offences.

58. Specifically, the Crown relies upon two gaol calls between the accused and his mother on 26 and 27 May 2020 (Exhibit 28) which the Crown argues show that the accused was taking active steps to influence Ms Hodge to give false evidence, the false evidence being that she was mistaken, or could not remember, lending her car to the accused.

59. The Crown argues that I should infer from those telephone conversations that they demonstrate that the accused had a guilty conscience, that is, he knew he was guilty of the alleged offences and was trying to arrange for a third party to speak to Ms Hodge.

60. I direct myself that before I can use any of this evidence as a consciousness of guilt on the part of the accused, I must be satisfied that:

1. The accused carried out the conduct alleged by the Crown;

2. He did so because of his knowledge of the offences; and

3. He did so because he realised his own guilt in relation to the offences.

62. I must be satisfied that what was in his mind when he participated in those telephone conversations was his guilt for the offences charged.

63. If I am satisfied of all those matters, then I can draw an inference that the accused’s guilty conscience motivated the relevant actions.

64. Such an inference cannot be drawn unless other reasonable explanations for the conduct consistent with innocence have been excluded.

65. If I am satisfied that I can draw the relevant inference, then I can rely on that evidence as pointing towards the guilt of the accused.

66. Standing by itself, that evidence could not prove guilt.

Elements of the offences

Count 1

67. In relation to Count 1, the Crown must prove beyond reasonable doubt that:

1. The accused did break and enter a dwelling house; and

2. Whilst inside the dwelling house the accused committed a serious indictable offence, namely reckless wounding; and

3. The accused knew there were persons present in the dwelling house; and

4. He was armed with a dangerous weapon, namely a firearm.

68. “Break” means to forcibly gain access and also includes opening a closed but unlocked door.

69. “Entered” means went inside.

70. “Dwelling house” includes a unit.

71. As a matter of law, reckless wounding is a serious indictable offence.

“Reckless wounding”

72. In order to prove beyond reasonable doubt that the accused committed the offence of reckless wounding, the Crown must prove that:

1. The accused wounded Mr McDonald; and

2. The accused was reckless as to causing actual bodily harm.

73. “Wound” involves the breaking of both layers of skin. It is an Agreed Fact that Mr McDonald was wounded.

“Reckless as to causing actual bodily harm”

74. The accused will be reckless as to causing actual bodily harm if he realised that actual bodily harm may possibly be caused to the victim by his actions yet went ahead and acted as he did.

75. The accused cannot be found to have acted recklessly unless the Crown proves that the accused actually thought about the consequences of his act and, at least, realised the possibility of actual bodily harm.

76. “Actual bodily harm” means any hurt or injury calculated to interfere with the health or comfort of the victim. Such hurt or injury need not be permanent but must be more than merely transient and trifling.

“Knowing there were persons present in the dwelling house”

77. If there was a person present in the dwelling house at the time when the offence was committed, the accused is presumed to have known that fact unless the accused satisfies the Court that he had reasonable grounds for believing that there was no one present in the place.

“Armed with a dangerous weapon, namely a firearm”

78. “Armed” in relation to a dangerous weapon includes bearing or having the immediate physical possession of the weapon.

79. “Dangerous weapon” includes a firearm and imitation firearm. A firearm relevantly means a gun that is (or at any time was) capable of propelling a projectile by means of an explosive.

Count 2 (in the alternative to Count 1)

80. In relation to Count 2, the Crown must prove beyond reasonable doubt that:

1. The accused entered the dwelling house;

2. With intent to commit a serious indictable offence, namely robbery; and

3. The accused knew there were persons present in the dwelling house; and

4. He was armed with a dangerous weapon, namely a firearm.

81. “”Enter” means to go inside.

“With intent”

82. Intent in this legal context carries its ordinary meaning. The intent must exist at the time of the entry.

“To commit a serious indictable offence, namely robbery”

83. As a matter of law, robbery is a serious indictable offence.

“Robbery”

84. In order to prove an intent to commit a robbery, the Crown must prove an intent:

1. To take and carry away property of another with the intention to permanently deprive the owner of the property;

2. To take the property from the owner or person in lawful possession of the property,

3. To take the property without the consent of the owner and to take it by force or putting the person in fear.

85. “Knowing there were persons present in the dwelling house” and “Armed with a dangerous weapon, namely a firearm” - I have previously outlined each of these elements in relation to Count 1.

Count 3 (in the alternative to Count 1) and Count 4

86. Count 3 and 4 are each offences of reckless wounding. I have previously outlined the elements of the offence of reckless wounding in relation to Count 1.

Alternative counts

87. Count 2 and 3 on the indictment are in the alternative to Count 1. During the trial, I had indicated my view to the parties that Count 2 was a separate offence rather than an alternative to Count 1. Whilst the Crown initially agreed and proposed to amend the indictment, in circumstances where Mr Stewart ultimately opposed any amendment, the Crown did not seek leave to amend the indictment.

The evidence at the trial

Jake McDonald

88. Mr McDonald gave evidence that as at 8 June 2014 he was living in a two-bedroom townhouse at 2/15 Bogan Road, Booker Bay. He had been living at that address with Paul Johnson for about two years.

89. His girlfriend at the time was Tania Bain. He had been in a relationship with her for approximately two years.

90. On the evening of 8 June 2014, he was at home with Mr Johnson and Ms Bain. That evening Mr Johnson went to bed on a foldout sofa bed in the lounge room. Ms Bain went to sleep in the second bedroom in circumstances where he had been arguing with her throughout the day about their relationship.

91. Late in the evening, Mr McDonald was visited by two friends, Kyle and Jasmine. They left around 12 AM. At that stage he locked the front security door and wooden door. He thought the rear sliding door was locked, as it is always locked.

92. After the visitors left, Mr McDonald went to his bedroom and started watching a movie. He was sitting on the end of his bed. The TV was in front of his bed. Whilst watching the movie, he saw a male wearing a balaclava and holding a pistol in his hand standing at his door. The male was probably 2 metres from him. Mr McDonald grabbed and held the pistol and was wrestling with the male.

93. At some stage, Mr Johnson came in and tackled the male. Mr McDonald described having the pistol in his hand and hitting the male in the head three times with it. He then thought he threw the pistol. He did not see the male with the pistol again.

94. He could not really recall what Mr Johnson was doing. He described Ms Bain coming in and screaming and punching and that she ripped the balaclava off his head. Mr McDonald was still in his bedroom at this stage. He described that the fight progressed down the hallway to the lounge room.

95. Mr McDonald said the lights were on in his bedroom and off in the hallway and lounge room.

96. Mr McDonald said at that stage he got a look at the male who was on top of him. He was on his back on the floor and was telling the male “get off, go away, you’ve got the wrong person, just get out of here” (T 15.12-15.13 25/5/20). Mr McDonald described that the male was trying to stab him with a knife. He said he was in the lounge room by this stage and Mr Johnson was in the hallway. He saw the male pull a knife out and turn around and stab Mr Johnson twice. He was stabbed in the stomach. At the time, Mr Johnson was stabbed, he had his hands up palms facing forward.

97. Mr McDonald gave evidence that the male then started coming at him whilst he was still in the lounge room. He was on his feet and he started kicking into the male to get him away from him. He was stabbed by the male with a knife twice in the shoulder and the leg. The male then got on top of him and was stabbing to his chest whilst Mr McDonald was holding him to push him away. He then got up and ran out of the house. He described that Ms Bain was running all over the house screaming.

98. At some stage, Mr McDonald heard the male’s voice. He said, “give me your money” (T 16.41 25/5/20). He thought he replied, “I’ve got nothing” (T 16.47 25/5/20). He did not remember the voice having an accent.

99. In relation to the physical description of the male intruder, Mr McDonald gave the following evidence (T 17.4-17.30 25/5/20):

“Q. Do you remember what his hair colour was?

A. No I didn’t see his hair colour.

Q. Do you remember if he had any piercings?

A. No, ..(not transcribable).. tattoo on his neck.

Q. Do you remember what his skin colour was?

A. It was white.

Q. Do you remember about how old he looked?

A. No, I didn’t really see - it’s hard you know.

Q. Do you remember how tall he was?

A. He was shorter than me.

Q. How tall are you?

A. I’m six four. He would have been like five eleven type of thing probably.

Q. Do you recall his build, by that I mean was he fat, skinny, medium or otherwise?

A. No he was just a little built, yeah.

Q. Sorry just a--

A. A little built.

Q. So a little bit muscular you mean?

A. Yeah.”

100. Mr McDonald identified 44 photographs of the unit where the incident occurred (Exhibit 3B).

101. Photograph 82 was of a black balaclava on the floor of his bedroom. Mr McDonald gave evidence that it was not his.

102. Mr McDonald was treated in hospital where he had an operation to treat wounds to his arms and legs.

103. During the evidence of Mr McDonald, the Crown was granted leave to refresh the witness’ memory in relation to the description of the male intruder and the weapon. Mr McDonald was asked the following questions (T 29.26-30.44 25/5/20):

“Q. You should have your statement of 27 June 2014?

A. Which envelope is that one, there’s one, two, three and three..(not transcribable)..

……..

Q. Now before you read it, don’t read it just yet, I will just ask you some questions about the intruder, the guy that came in and what he looked like okay?

A. Okay.

Q. So did he have short shaved hair on the sides and spikey on top, do you remember?

A. Yes.

STEWART: Is he looking at the statement?

SOLICITOR ADVOCATE: Perhaps if you could just turn your statement over just for the time being.

Q. Was his hair blond in colour do you remember?

A. It was brownish.

Q. Brownish?

A. Yeah.

Q. Did he have a piercing in his left nostril or a nostril, do you remember?

A. Yes he did, he did.

Q. Do you recall anything about his teeth?

A. No.

Q. Was one of his front teeth rotten?

A. I can’t really remember.

……………..

Q. Now can you just read paragraph 7 if that’s okay. Specifically just the first two lines?

A. Yeah.

Q. Now after you’ve hit him in the head with the gun do you remember if anything happened to the gun?

A. Yes something fell off it. I think either the clip or I know something came off it.

Q. When you say a clip, do you mean like a magazine, like the thing that holds the bullets of a gun?

A. Yeah.”

104. Mr McDonald gave the following further evidence pursuant to leave to refresh his memory (T 32.5-32.39 25/5/20):

“Q. Mr McDonald when you made your statement on 27 June 2014 that was almost six years ago?

A. Yes.

Q. Was your memory of events fresher then that it is today?

A. Yeah it was fresher back then, but not now.

Q. So events that are recorded when you made your statement you would have had a better recollection when you made your statement?

A. Yes.

Q. Can I just take you to paragraph 6. About halfway through the paragraph you talk about him being 5 foot 11 inches tall and medium build. Do you see that part?

A. Yeah.

Q. From there can you read the next three sentences? So ending with a cap gun, so starting with “I recall”?

A. ..(not transcribable).. number 6?

Q. Yeah, so it says “I recall seeing”?

A. He had the gun.

Q. Can you read three sentences, so read that along for about two lines ending with “pop sound like a cap gun”?

A. Yep.

Q. Can you read that out loud?

A. “I recall seeing that the front left tooth was rotten. I was putting it down and spreading my legs, I thought I heard a pop, like a the sound of a gun, a cap gun.”

Q. Thank you. So when you made that statement the event of 8 June 2014 were considerably fresher in your mind than what they are today?

A. Yeah.

The events at Wyong Probation and Parole office

105. Mr McDonald gave evidence that in 2016 - 2017 he was in a relationship with Sherrin Dickson.

106. On one occasion in late 2016 or early 2017, he went with her to Wyong Probation and Parole Office. Whilst he was sitting in the car waiting for her, a male came up to the car and asked him for a lighter. As the male walked off, he looked at a tattoo on his neck, and realised it was the male who stabbed him during the incident in June 2014. Mr McDonald did not remember what the tattoo looked like. He said:

”I know when I seen it. I know it’s on the left side.” (T 6.5 26/5/20)

107. He then went inside and spoke to Sherrin Dickson and told her what had happened. By this stage the male was at the counter and he heard him say his name “Jake Bails”.

The Facebook photo

108. Mr McDonald gave evidence that after being told that a person by the name of ‘Jake Shivy’ had stabbed him, he found that name on Facebook. The Facebook account was in the name of ‘Jake Shiv’. When he looked at Facebook he saw a photo of the person Jake Shiv (Exhibit 3C). He gave the following evidence:

“That’s the face who - the guy who stabbed me.” (T 6.37-6.38 26/5/20)

109. During his evidence in chief Mr McDonald gave evidence that he had accessed the Facebook account of Jake Shiv probably a day after he went to the Wyong Probation and Parole office with Sherrin Dickson.

110. In cross-examination he conceded he accessed the Facebook photo in late 2014 or early 2015, that is, before he saw the intruder at the Wyong Probation and Parole Office.

111. In March 2018, he provided a copy of the Facebook photo to Senior Constable Nicholls.

112. During cross examination Mr McDonald indicated the light was off in his bedroom when the intruder entered the room. Whilst there was a light on, he did not know if it was his bedroom or the lounge room or the hallway. He agreed he had a “pretty good look at the face of this intruder” (T 14.3-14.5 26/5/20).

113. Mr McDonald was asked about the description he gave of the intruder. He was reminded that in his police statement of 27 June 2014 he had said that the intruder’s hair was blonde. It was suggested to Mr McDonald that he changed his evidence in circumstances where he had said in evidence in chief that the hair colour was “brownish”. He gave evidence he did not remember saying “blonde” to the police and described it as “a light brown, light-light-coloured” (T 15.8 26/5/20).

114. It was suggested to Mr McDonald that he changed his evidence in relation to the hair colour because he could now see the accused on the audio-visual link and the accused had brown hair. Mr McDonald denied that he had changed his evidence for this reason.

115. Mr McDonald was then asked about his description of the intruder that included a piercing in the left nostril or one of his nostrils. Mr McDonald indicated that the piercing was a stud. He agreed that the intruder was also a person that may have also had a piercing in one of their ears.

116. Mr McDonald also confirmed that the intruder had a rotten front tooth. He described it as “sort of black”, “a dirty colour” (T 17.32, 17.35 26/5/20). Mr McDonald was reminded that in his record of interview conducted at Gosford Hospital on 8 June 2014 he had told police the following:

“He had an earring and he, like, a rotten front tooth. It was fuckin’ black. It looked like it was black.” (QA 84).

117. He agreed that the rotten black tooth had made quite a strong impression on him at the time.

118. Mr McDonald was also cross-examined about his attendance at Wyong Probation and Parole office. Mr McDonald agreed that the tattoo he saw on the neck of the male at Wyong Probation and Parole was a tattoo that he identified as also being on the neck of the intruder on 8 June 2014.

119. Mr McDonald was cross-examined in relation to when it was that he had accessed Facebook in relation to the name ‘Jake Shiv’. Mr McDonald said he was in custody at Cessnock when he first heard the name ‘Jake Shiv’.

120. Mr McDonald was then reminded that in his police statement dated 23 March 2018 he had told police that he had been in custody in late 2014 and that it was during that period of custody that he heard a rumour about ‘Jake Shivy’ being the intruder. He agreed that it would have been shortly after his release from custody that he found the name ‘Jake Shivy’ on Facebook. Mr McDonald agreed that he would have looked at Facebook in either late 2014 or early 2015. He agreed that when he saw the Facebook photo he believed, at the time, based on a rumour, that the photo was the person who had invaded his home. He agreed that he had decided in his mind that the Facebook photo was of the person who was the intruder.

121. He further agreed that it was not until late 2016 or early 2017 that he went to Wyong Probation and Parole office.

122. Mr McDonald was further cross-examined in relation to the sequence of events at the Wyong Probation and Parole office. It was suggested to Mr McDonald that when he made his police statement on 23 March 2018 he did not say anything at that time about a male coming up to him whilst he was in the car. He was reminded that in his police statement he said he saw the male when he was seated in the foyer of the Wyong Probation and Parole office.

123. He agreed that he had never seen the male intruder previously.

When did the balaclava come off the intruder’s head

124. He was cross-examined about his hospital record of interview during which he had told police that he had pulled the balaclava off the intruder’s head. He said he did not take the balaclava off, that it was Ms Bain.

125. He was asked whether Ms Bain became involved in the altercation with the intruder. He gave evidence that she was hitting the intruder and came into the room screaming, punching him and trying to drag down the hallway. He was asked whether Ms Bain had left to get help before the balaclava came off the man’s head. He said, “I don’t think so” (T 35.43 26/5/20).

126. He was further cross-examined about where he struck the intruder in the head. He was reminded of his hospital police interview during which he told police he hit the intruder with the gun “right near the temple” (T 36.45-36.46 26/5/20).

127. During cross-examination, Mr McDonald indicated that at the time of the incident he was on ice. He agreed it was likely that he may have been affected by the ice to some extent. He also said Ms Bain was affected by ice. He had seen her smoking ice in her room by herself.

Description of the balaclava

128. During cross-examination, Mr McDonald gave evidence that he remembered the balaclava having at least one hole for the eyes and at least one hole for the mouth. He had not seen the balaclava in his home prior to the incident. He did not recall Ms Bain ever bringing a balaclava to his home. He said she was 7 months pregnant at the time.

129. It was suggested to Mr McDonald in cross-examination that when Ms Bain saw Mr McDonald and Mr Johnson wrestling with the intruder, she screamed out and then left the house. He replied, “I don’t know. I wasn’t supposed to stop and watch what she was doing, was I?” (T 39.48-39.49 26/5/20).

Continuation of relationship with Ms Bain after the incident - Did Ms Bain know about the person ‘Jake Shivy’?

130. Mr McDonald estimated that after 8 June 2014 he continued in a relationship with Ms Bain for a couple of months. He said that as soon as she had the baby he did not have anything further to do with her.

131. He told the Court that Ms Bain had the baby whilst he was in gaol. During Ms Bain’s evidence she said she did not, in fact, have a baby.

132. He did not continue to contact her after he got out of gaol and had not spoken to her in a long time. He conceded that he may have maintained contact with her a couple of times when he got out of gaol although he could not remember.

133. He was asked whether he had a conversation with Ms Bain about the rumour he heard regarding who might have been responsible for the incident. He said, “no, I can’t remember that”. He was specifically asked whether he had told her that he had looked on Facebook and found the profile of ‘Jake Shivy’. He said, “No I can’t remember that” (T 41.32 26/5/20).

134. Mr McDonald was asked whether it was possible that he did have a conversation with her about the person ‘Jake Shivy’. Mr McDonald replied, “possible, but not possible, I don’t know” (T 42.1 26/5/20).

135. Mr McDonald was asked whether it was possible that the balaclava had nothing to do with the incident and was not worn by the intruder. Mr McDonald said it was worn by the intruder.

136. In re-examination Mr McDonald was asked about his recollection of the time when he was in hospital. He was asked whether he could remember much about what happened in hospital. He said “not really” (T 42.39 26/5/20). He said he was waiting for an operation.

137. An extract from the hospital record of interview with Mr McDonald was played during the trial (Exhibit 16). The video commenced at 3.40 am and showed Mr McDonald lying on a hospital bed with an oxygen mask on.

Section 38 cross-examination (regarding the tattoo)

138. The Crown was given leave pursuant to s 38, Evidence Act to cross-examine Mr McDonald. It was suggested to Mr McDonald that he did not tell police about a tattoo on the neck of the intruder when he spoke to them at the hospital on 8 June 2014. Mr McDonald said, “I might’ve forgot about it” (T 55.27 26/5/20). Further, it was suggested he did not mention the tattoo in his police statement made on 27 June 2014. He was asked whether he could have been mistaken about seeing a tattoo on the offender’s neck when he was at Wyong Probation and Parole office. He said, “No” (T 56.11 26/5/20). I note that the Crown case at this stage of the trial, was that the accused did not have a neck tattoo as at 8 June 2014. However, the Crown subsequently tendered photos of the accused in 2007 and 2014 showing a neck tattoo (Exhibits 8, 9 and 10).

139. The neck tattoo can be described as three vertical lines approximately 2 – 3 cm in height with two horizontal lines across each vertical line located on the right side of the accused’s neck near the t-shirt collar line. The Crown indicated that the tattoo appears to be three “$” signs however, it is difficult to form a concluded view from the photos tendered in the trial.

140. Mr McDonald was further cross-examined by the Crown in relation to his description of the balaclava in his police statement namely, “he was wearing a black balaclava with just two eye holes”. Mr McDonald said “there was a hole for the mouth”. He agreed that his recollection at the time he made his police statement on 27 June 2014 was that there were just two eye holes.

141. In further cross examination on behalf of the accused, Mr McDonald described the balaclava as having one hole for the mouth and one hole for the eyes.

142. The balaclava was tendered in the trial (Exhibit 25). It has one hole for both eyes.

Paul Johnson

143. In 2014, Mr Johnson lived with Mr McDonald in Booker Bay. He also knew Mr McDonald’s girlfriend, Ms Bain.

144. On 8 June 2014, Ms Bain stayed overnight. She slept in his bedroom and he slept on the lounge in the lounge room. He went to bed around 8.30 pm – 9.00 pm. Before he went to bed he closed the door. He never locked it because Mr McDonald used to have friends around late at night.

145. He was woken up during the night by Mr McDonald calling his name very loudly. He did not know what time it was. After waking up, he walked up the hallway. He was confronted by a man wearing a balaclava and he started stabbing him. When he realised he was being stabbed, he tackled the man around his ankles. He was stabbed in the chest and the back. The man was face down on the ground. He yelled out to Mr McDonald “grab the knife” (T 16.26 28/5/20). He gave it a couple of minutes and then let the man up. As far as Mr Johnson knew, the man was always wearing the balaclava. He only saw him when he confronted him and when he was on the floor. He described that when he let the man up, Mr McDonald confronted him and then the bloke “took off” (T 16.30 28/5/20). He was not one hundred percent sure where Ms Bain was at this time.

146. As he was walking up the hallway Mr McDonald yelled out “I’ve been stabbed, I’ve been shot” (T 17.3 28/5/20). He did not hear a gun go off. He did not see Mr McDonald get stabbed.

Description of the intruder

147. He described the intruder as wearing all dark clothing, approximately his height (5’8”) or a little bit taller. He did not hear the person speak.

148. During an interview conducted whilst he was at Gosford Hospital he agreed that when asked “What sort of hair did he have?” he told police “I couldn’t see. All I could remember was black, black ends” (T 18.43 28/5/20).

149. Mr Johnson described that he had seen the hair colour when the male was on his way out. He was not sure whether Mr McDonald had taken the balaclava off or whether the intruder had taken it off himself, but he thought he saw the back of his head.

150. Whilst in evidence-in-chief he said he did not hear the man speak. He subsequently agreed that he had heard the man speak and he had an Australian accent. He gave evidence that he did not see the man’s face at all.

151. At the time of the incident he gave evidence that he may have turned the lounge light on as there was shaded light somewhere.

152. As a result of being stabbed, he was taken to Gosford Hospital where he had an operation on his stomach and back to repair the wounds.

153. During cross-examination, Mr Johnson agreed that in his police interview at 4.15 am on 8 June 2014 he had told police that he closed the front door at about 8.30 pm and went to bed about 10.30 pm. He gave evidence that he did not lock it so that he was not disturbed by Mr McDonald’s friends. He did not recall anyone passing his bed before being woken up.

154. Mr Johnson gave evidence that he saw Ms Bain at one stage, walking around in the bedroom. He confirmed that that was after the man had left. He was not aware of her in the hallway. He had not seen her at all in the hallway.

155. Mr Johnson agreed that in his police interview at 4.15 am on 8 June 2014 he did not mention the balaclava. He agreed he was asked the following question:

“Q. Was he wearing anything on his head?

A. Not that I can recall.”

156. Mr Johnson explained that he thought the police meant a hat.

157. Mr Johnson was re-examined. He estimated that the time between when he tackled the man in the hallway and when the man left out the front door was 5 minutes.

158. He was asked where Mr McDonald was when he had hold of the man’s ankles. He gave evidence that he could not recall. He thought he was holding the man down by himself.

Tania Bain

159. Ms Bain gave evidence that in 2014 she was in a relationship with Mr McDonald. As at June 2014, Ms Bain indicated that she had broken up with Mr McDonald because he was on drugs.

160. On 7 June 2014, she had arrived at the Bogan Street unit at about 11.30 pm. She was going there to get some of her belongings from Mr McDonald. Whilst at the unit she had an argument with Mr McDonald about her leaving him and the return of her belongings.

161. She was not feeling very well so Mr Johnson said she could stay at the unit and sleep in his room for the night and he would stay in the lounge room. Mr Johnson said he would help her get her belongings out the following morning. At the time Ms Bain had found out that she was pregnant.

162. Ms Bain said she went to bed about midnight in Mr Johnson’s bedroom. She fell asleep.

163. She was awoken by Mr McDonald yelling, “What do you want? Who the fuck are you?” She got up out of bed and went to look. She saw a male standing with a balaclava on and fighting with Mr McDonald in Mr McDonald’s bedroom.

Description of the male intruder

164. Ms Bain described the intruder as wearing “a black hoodie, maybe black track pants and white sneakers” (T 4.4 29/5/20) and a black balaclava.

165. She went into the bedroom and pulled the balaclava off his head. She tried to drag him down to the lounge room, down the hallway. She was trying to get him out of the unit. She asked the male who he was. The male did not reply and did not speak at all.

166. She also saw Mr Johnson trying to pull the male off Mr McDonald as well.

167. She described that the fight with the intruder also went into the lounge room.

168. At one stage, she described seeing the intruder reach into his pocket and grab out a sharp shiny object. She then saw that he “put it into” Mr Johnson and Mr McDonald (T 5.31-5.32 29/5/20).

169. She then ran out the door to get help. She described that the front door was open and the screen door was closed. The door was never locked.

170. She ran to the next door neighbour Mr Chris Bulloch’s house. She asked him to call the police because Mr McDonald and Mr Johnson had been stabbed. Mr Bulloch took her into the house because she was “pretty traumatised” (T 6.28 29/5/20).

Observations of a vehicle

171. Ms Bain gave evidence that she was out by the front door on the grass when she saw a vehicle that “took off” (T 6.44 29/5/20). She described the car as a white station wagon. She was unable to say what type of station wagon it was. She described that it had “like roof racks or something on it” (T 7.4 29/5/20).

172. She was asked whether she knew the difference between roof rails and roof racks. She gave the following evidence:

“It looked like roof rails, like, two black things just sitting on top of the roof” (T 7.11-7.12 29/5/20).

173. She described the engine as loud and the vehicle as leaving very quickly.

Description of the male intruder

174. Ms Bain described that after she removed the intruder’s balaclava she looked at his eyes. She gave the following evidence:

“Q. Did you get a look at his face?

A. His eyes.

Q. How good a look at him did you get?

A. He’s just got very distinctive eyes, like, he can - they were very evil looking eyes” (T 7.36-7.41 29/5/20)

175. She agreed that the eyes were the thing that she remembered the most clearly. She was asked whether she remembered any other specific features that the male had. She gave the following evidence:

“A. No. I thought he had a nose piercing may be.” (T 7.48 29/5/20)

176. She described the intruder’s build as, “About 5’6”. Skinny, skinnyish, like – like, yeah, not, not big but not skinny, like, medium build” (T 8.37-8.38 29/5/20). She described the balaclava as just having eye holes cut out of it. She did not remember any other holes in it.

177. She denied ever owning a balaclava. She denied ever seeing Mr McDonald wearing a balaclava. She denied ever seeing a balaclava before the night of the alleged incident in Mr McDonald’s bedroom.

178. She described that the kitchen light was on whilst Mr Johnson and Mr McDonald were fighting with the intruder. She confirmed that she was able to see the intruders face because the kitchen light was on.

179. She gave evidence that she did not go back to the unit until police arrived.

Photo identification procedure conducted on 18 August 2019

180. Ms Bain attended a police station on 18 August 2019 and viewed 20 photos on a computer. She selected photo number 2 as being the person she recognised from the incident on 8 June 2014. She gave the following evidence:

“Q. Where did you recognise him from?

A. From the home invasion. Those eyes. He got eyes - those eyes.” (T 9.23-9.24 29/5/20)

181. Ms Bain gave evidence that she had never seen the person before. She was asked the following question:

“Q. Can you tell us why or how you recognised photograph 2?

A. Just the eyes and when I seen the eyes, I felt sick, like, my heart started pumping and, yeah, just wasn’t good, wasn’t a good feeling”. (T 9.49-10.1 29/5/20)

182. A hard copy of the computer array shown to Ms Bain was tendered in the trial (Exhibit 17). The video recording of Ms Bain participating in the photo identification procedure was played during the trial (Exhibit 18). There was no transcript of this video recording tendered in the trial. The photo identification procedure computer array was also played during the trial (Exhibit 27).

183. The photo identification procedure computer array contained 20 photos of males that were generally of a similar appearance. The accused’s photo is number 2.

184. Prior to the commencement of the photo identification procedure, the police officer present told Ms Bain, inter alia, that the person who committed the offence may or may not be in the photos, that she was in no way obliged to select anyone and that she should look at all the photos before making any comment.

185. At the commencement of the photo array a number of instructions were shown on the screen including, inter alia, “You should understand that this presentation may not contain an image of the person involved in the incident”.

186. During the video recording of Ms Bain participating in the photo identification procedure (Exhibit 18) Ms Bain can be seen viewing each of the 20 photographs in the array. When she views the photo of the accused for the first time she can be seen to move forward towards the computer screen. She then moves back and says in a quiet voice “maybe”. She also moves forward when viewing a number of the other images without making any comment.

187. After viewing the array once, she begins to play it again and when the photo of the accused is shown she holds up her hand so that she can only see the eyes of the accused. She then selects the accused’s photo.

188. She then identifies the accused’s photo as the intruder. When she is asked by the police officer to confirm her selection she states, “Yep, those eyes”.

189. After making the selection of the accused’s photo, Ms Bain is seen deliberately looking away from the computer screen. She asks the police officer, “that person won’t know where I am, will they?” At the end of the video Ms Bain states, “Just brings back memories and I just don’t want him to find me”.

Cross-examination of Ms Bain

190. Ms Bain gave evidence during cross examination that there were no visitors at the unit before she went to bed. She did not recall a couple of people coming over to the unit.

191. She gave evidence that her relationship with Mr McDonald was not going well because Mr McDonald was “doing drugs” (T 13.19 29/5/20). She gave evidence that “I had got into them and wasn’t liking how my life was going” (T 13.25 29/5/20). She described that she stopped taking drugs after becoming aware she was pregnant. She gave evidence that she did not take drugs for 3 months leading up to the date of the alleged incident other than smoking some marijuana. She had not had any drugs (including marijuana) on the night of the alleged incident.

192. She specifically denied smoking ice through a pipe during the evening of 7 - 8 June 2014.

Did she know the accused?

193. It was suggested to Ms Bain in cross examination that she knew the accused. She denied that she knew the accused. It was suggested that she had a lot to do with the accused and had met him on many occasions. She denied that. It was suggested that on many of those occasions she met the accused with her friend “Joel”. She denied that.

194. Ms Bain was cross examined in relation to a person by the name of “Joel”. She described her relationship with Joel as best friends. It was suggested to Ms Bain that she would go many places with Joel and, on many of those occasions, the reason would be to collect drugs. Ms Bain denied that assertion.

195. She confirmed that for a period of time she lived in a townhouse in Woy Woy on North Burge Road. She confirmed that she rented a room from a lady who also lived in the townhouse. It was suggested that on quite a number of occasions, seven or eight times, the accused went to the townhouse where she was living for a drug-related purpose. Ms Bain denied that suggestion. She agreed that her bedroom was upstairs.

196. It was also suggested there are occasions when she met the accused when he was staying in a room at the Woy Woy Hotel. She denied that suggestion. It was suggested these meetings spanned a time period of about 7 months during 2015. She denied that. She agreed that “Joel” had a dark coloured Commodore.

197. It was suggested that she would smoke ice with Joel and the accused. She denied this suggestion. It was also suggested there were times when she would go to the accused’s house where he was living around Toukley. She denied that suggestion.

198. It was suggested that she was pretending not to know the accused. She continued to deny that she knew the accused.

199. It was also suggested that on one occasion she was collected by the accused from a railway station after being assaulted by her partner. Ms Bain denied that this had occurred. It was suggested that she started talking to the accused and said things like, “if you ever want to hook up, I’m keen” (T 23.40-23.41 29/5/20). Ms Bain replied, “I don’t know what you’re talking about” (T 23.45 29/5/20).

200. It was suggested to Ms Bain that the accused made it clear to her that he was not interested. She repeated, “I don’t know what you’re talking about” (T 23.45 29/5/20). It was also suggested there was other conflict between herself and the accused over money. Ms Bain denied this suggestion.

201. It was further suggested that when she selected the accused’s photo from the picture identification procedure, she falsely claimed that he was the person involved in the incident on 8 June 2014. She denied this suggestion.

202. It was suggested to Ms Bain that she knew that the accused was not the person that had been involved in the alleged incident. She gave the following evidence, “He is the person. His eyes” (T 24.11 29/5/20).

203. It was suggested to Ms Bain that before living in a townhouse at Woy Woy she lived in a garage behind a man’s house by the name of Ryan. Ms Bain denied living in a garage. She gave evidence that she had stayed at a house with Ryan however, she had a room in the house. It was suggested that the accused had visited her whilst she was living with Ryan during 2015. She denied that.

204. She was asked whether she knew the accused by the name ‘Jake Shivy’. She denied knowing the accused by that name.

205. It was suggested there were many occasions when she would meet up with the accused or ‘Shivy’ and, on some of these occasions, she was with her then boyfriend, Joel. She denied this. She was asked whether Joel’s parents lived at Empire Bay. She denied his parents lived at Empire Bay and indicated they lived at Mount Ettalong.

206. She agreed that Joel had a dark coloured Commodore.

207. She was asked whether she remembered a person called “Bisho”. She denied knowing a person by that name.

208. She again gave evidence that she has never met the accused.

209. She was asked whether she had spoken to Joel since she last gave evidence on 29 May 2020. She denied that she had spoken to Joel. She was asked whether she had any contact with him whatsoever. She denied that she had any contact with him.

210. She was asked when was the last time he she had contact with Joel. She said probably two weeks ago as they share custody of a child.

211. Ms Bain was cross-examined about the sequence of events at the house on the morning of 8 June 2014. She was asked whether when she removed the balaclava, she had a look at the offender’s face. She agreed that she did not tell police in her police statement dated 8 June 2014 that she had ripped off the balaclava. She agreed that ripping the man’s balaclava off and seeing his face would have been one of the most important things to have told police. She gave the following evidence:

“I was very traumatised at the time and scared and-I’ve only had flashbacks of him pulling it off lately. I’ve been talking to a counsellor, I’ve seen a counsellor” (T 7.48-7.50 2/6/20).

212. Ms Bain gave evidence that she started having flashbacks about pulling off the man’s balaclava when she was contacted by Senior Constable Nichols.

213. She agreed that in her police statement she had said:

“I rushed out of the bedroom to see Jake and Paul wrestling with another man who was wearing a black balaclava. I did not recognise this man. I yelled out, “I’m getting the police, can someone help me. I went to leave the house to get help” (T 8.29-8.39 2/6/20).

214. She gave evidence that she pulled the balaclava off and then dropped it on the bedroom floor. She was asked why she would not mention that to police on the morning of 8 June 2014. She stated “because I was too scared” (T 9.2 2/6/20).

215. It was suggested to Ms Bain that, had she in fact, pulled the balaclava off the man’s face and looked at his face, she would have been in a position to give some detail to the ‘000’ operator. She agreed that when she was asked during the ‘000’ call “do you have a description of him?”, she replied “no” (T 9.31-9.33 2/6/20).

216. During cross-examination Ms Bain gave evidence that she saw a Commodore station wagon around the corner parked on the side of the road between the unit and Mr Bulloch’s house. She saw the vehicle drive off when Mr Bulloch was on the phone to police. They were standing in the front yard of Mr Bulloch’s house. The vehicle drove away from the unit along Telopea Street.

217. She was cross-examined in relation to telling the ‘000’ operator that the vehicle was “blue”. She said the vehicle was white. She could not remember saying the vehicle was blue.

218. Ms Bain was asked whether she saw the balaclava on the floor in the house. She gave evidence that she did not go back into the house until after the police had arrived. Police told her that they had found a balaclava on the floor.

219. She was cross-examined about her police statement during which she had indicated that Mr Johnson was bleeding heavily and that she went to try and help him and, as a result, got his blood on her peach coloured cardigan. She said she did not remember that because it was a long time ago. She said she just remembered standing out the front of the house and seeing Mr Johnson and Mr McDonald inside the house.

220. It was suggested to Ms Bain that she may have gone inside the house and picked up the balaclava. She did not agree.

221. She was asked whether she continued to have contact with Mr McDonald after the incident. She indicated that she did not because she tried to get away from him.

222. She was further cross-examined in relation to an address in Empire Bay where Joel’s parents resided. She denied attending a house in Empire Bay with Joel whilst the accused was present.

223. During cross-examination, it was suggested to Ms Bain that when she participated in the photo identification procedure on 18 August 2019 she knew the accused from multiple meetings during the course of 2015. She disagreed. It was suggested that when she selected the photo of the accused, it was because she remembered the accused as a person that she had multiple dealings with in 2015. She denied that.

224. It was suggested that when she selected the photo she did not recognise the person from the home invasion but rather, recognised the person as a person that she had dealings with in 2015. She denied that. She stated:

“I’m not just going to go and say that someone has done something if they haven’t done it. I remember those eyes” (T 21.45-21.46 2/6/20).

225. In re-examination, Ms Bain was asked to identify from a number of photographs the location of Mr McDonald and Mr Johnson’s unit and also the location of the white Commodore station wagon that had been parked in Telopea Street.

226. She was also asked about how she was feeling when she went to the police station on 8 June 2014 to make a police statement. She gave evidence she felt “traumatised and sick” (T 29.1 2/6/20).

227. In further cross examination, Ms Bain was asked whether Mr McDonald told her about looking at a Facebook photo of the person ‘Jake Shivy’. She did not remember this occurring and she also did not remember looking herself at a Facebook photo of the accused.

Further evidence of Ms Bain on 11 June 2020

228. Ms Bain was recalled by the Crown. During her further evidence in chief she was shown 4 photographs of the accused (Exhibit 24) and asked whether she recognised that person. She gave the following evidence:

“That’s the home invader, yeah” (T 2.7 11/6/20).

229. She was asked whether she had seen that person other than during the home invasion and she replied, “No” (T 2.11 11/6/20).

230. This evidence was led for the limited purpose of asking Ms Bain if she had seen the accused on any other occasions. I do not rely upon it as further proof of the Crown case.

231. During further cross examination Ms Bain was asked about her previous evidence in relation to any contact she had had with Mr Moore between 29 May and 2 June 2020 that is, the two occasions on which she had previously given evidence. She had specifically been asked, “have you spoken to Joel’s since you last gave evidence?” And she replied, “no” (T 3.42-3.43 2/6/20). She was asked whether she had, in fact, travelled with Mr Moore from Muswellbrook to give evidence on 2 June 2020. She replied, “yes, I didn’t talk to him about the court case or anything” (T 3.45 11/6/20). She said, “I’m not going to talk about the court evidence” (T 3.35-3.36 11/6/20).

232. It was suggested to Ms Bain that she lied because she had indicated to the Court there had been no contact when, in fact, she had travelled for the purpose of giving evidence from Muswellbrook to Raymond Terrace Police Station with Mr Moore.

233. She was further cross-examined about contact between herself and the accused through Facebook messenger. It was suggested that there had been contact between the two of them through Facebook messenger. Ms Bain indicated she did have a Facebook messenger account “but it got hacked” and that she had not been on it for a long time (T 6.43-6.44 11 June 2020, p 6(43-44)).

234. In re-examination, she confirmed that her Facebook account had been hacked by Mr McDonald. She described that after they broke up he became obsessive and she tried to keep away from him and that he went through her phone and hacked her Facebook amongst other things.

Mr Christopher Bulloch (Neighbour)

235. Mr Bulloch was a neighbour of Mr McDonald and Mr Johnson. He lived next door to their unit block. As at June 2014, he knew Mr McDonald, Mr Johnson and Ms Bain.

236. At around 2 am on 8 June 2014, he saw Ms Bain at his front gate screaming, “they’ve been stabbed, they’ve been stabbed”. Ms Bain then came inside and he called ‘000’.

237. The ‘000’ call was played during the trial (Exhibit 22). During the call, Mr Bulloch provides, inter alia, the following information to the operator: there had been a stabbing next-door; two persons had been stabbed; the operator asks, “do they know who it is?”; Mr Bulloch replies, “no, she doesn’t know who the person is”; the operator asks, “Do you have a description of them?”; Ms Bain replies, “no”; a description is given of the getaway vehicle, “He’s in a Commodore station wagon”; Mr Bulloch initially indicates that the vehicle is blue however, later in the ‘000’ call Ms Bain indicates it is white; the operator was told the intruder was wearing a balaclava.

238. In cross-examination, Mr Bulloch was asked whether he would normally hear if a vehicle took off from Bogan Road. He said he would normally hear. He gave evidence he did not see or hear a vehicle leaving.

Medical Evidence

239. The following facts were agreed between the parties:

Jake McDonald

1. On June 2014, Jake McDonald was taken by ambulance to Gosford Hospital. Hospital medical staff observed the following injuries to Mr McDonald:

1. A wound (breaking of the interior layer of the skin (dermis)) to Mr McDonald’s left shoulder, piercing the groove between the deltoid and pectoral muscles.

2. A wound (breaking of the interior layer of the skin (dermis)) to Mr McDonald’s right shoulder, piercing the deltoid muscle.

3. A wound (breaking of the interior layer of the skin (dermis)) to Mr McDonald’s left leg, causing a laceration to the tendon at the front of the shin.

2. Medical staff then operated on the above three wounds and repaired them.

Paul Johnson

1. On 8 June 2014, Paul Johnson was taken by ambulance to Gosford Hospital. Hospital medical staff observed the following injuries to Mr Johnson:

1. A 2.5 cm penetrating stab wound (breaking of the interior layer of the skin (dermis)) to Mr Johnson’s abdomen. The injury was such that Mr Johnson’s liver was injured as was his transverse colon. The injury also caused a cut to the wall of the stomach.

2. Two stab wounds (breaking of the interior layer of the skin (dermis)) to Mr Johnson’s back.

3. Cuts to Mr Johnson’s right arm and right index finger.

2. Medical staff then operated on the above wounds and repaired them.

Other evidence concerning the events at Wyong Probation and Parole office

Sherrin Dickson

240. Ms Dickson gave evidence that during 2016 she was attending the Wyong Probation and Parole office. She told the Court she knew Mr McDonald in 2016. She could not remember whether he had been with her to the Wyong Probation and Parole office.

241. The Crown sought leave to cross-examine the witness. During cross examination by the Crown, she conceded it was possible that Mr McDonald was with her on an occasion in 2016 when she attended the Wyong Probation and Parole office.

242. It was suggested to Ms Dickson that whilst Mr McDonald was at the Wyong Probation and Parole office with her, he pointed out a male person and said, “that’s the guy who home invaded me”. She did not think Mr McDonald would have said this, because she would have remembered it.

243. During cross-examination on behalf of the accused, Ms Dickson said she had been in a relationship with Mr McDonald for a couple of months. She did not remember driving to Wyong Probation and Parole office with Mr McDonald. She agreed that, to the best of her recollection, she had never taken Mr McDonald to Wyong Probation and Parole office.

244. It was suggested to her that there was never a time either inside the probation office or near the office that Mr McDonald said to her “that’s the guy that stabbed me in a home invasion”. She agreed that never happened.

Sarah Smith (New South Wales Community Corrections)

245. The statement of Ms Smith was tendered in the trial (Exhibit 13).

246. Ms Smith is employed by New South Wales Community Corrections. She provided the following evidence in relation to the times that both the accused and Sherrin Dickson had been in attendance at the Wyong Probation and Parole office:

1. 9 November 2016 – Sherrin Dickson at 1:30 pm and the accused at 2:30 pm

2. 23 November 2016 – Sherrin Dickson at 1:30 pm and the accused at 1.30 pm

Evidence of Police

Sergeant Wayne Cahill

247. Sergeant Cahill gave evidence that he arrived at the unit where the incident allegedly occurred at 2 am on 8 June 2014. He left the scene at 4.45 am. There was no cross examination.

Senior Constable Matthew Nichols (Officer in Charge)

248. Senior Constable Matthew Nichols gave evidence that at 1.50 am on 8 June 2014 he heard a VKG radio broadcast in relation to the alleged incident. At 2.40 am he attended Gosford Hospital.

249. At 3.40 am he conducted a record of interview with Mr McDonald at Gosford Hospital. On 27 June 2014, a further statement was taken from Mr McDonald.

250. On 23 March 2018, he obtained a further statement from Mr McDonald in relation to a Facebook photo of “Jake Shiv”.

251. On 19 December 2018, the accused was arrested and participated in a record of interview (Exhibit 4).

252. The Crown tendered the following photos of the accused:

1. Exhibit 8 - Four photos of the accused taken on 31 August 2014;

2. Exhibit 9 - Photo of the accused showing his neck tattoo taken on 31 August 2014;

3. Exhibit 10 - Photo of the accused showing his neck tattoo taken on 24 July 2007; and

4. Exhibit 24 – Photos of the accused shown to Ms Bain and Mr Moore during the trial.

253. Senior Constable Nichols gave evidence that on 27 May 2020 he searched Facebook for photos of the accused. He found photos of the accused posted in September 2014 on Ms Wilton’s Facebook page showing his left eyebrow with a stud piercing.

254. In cross examination, Senior Constable Nichols agreed that when he examined Facebook posts on 27 May 2020, there was no photo on Facebook showing any piercing of the accused’s nose. Further, he had not come across any other photos of the accused with a nose piercing.

255. Senior Constable Nichols gave evidence that the reason for the delay in conducting a photo identification procedure with Ms Bain was because Ms Bain could not be located.

Record of interview conducted with the accused on 19 December 2018 (Exhibit 4)

256. The accused participated in a record of interview with police. He denied being at the unit where the alleged incident occurred at approximately 2 am on 8 June 2014. He told police that his nickname was ‘Shivy’.

257. Police told the accused during the interview that DNA matching his profile had been found on the balaclava that had been removed from the intruder. He told police he had no idea why a balaclava would be at the unit with his DNA profile.

258. Police told the accused during the interview, that one of the witnesses had identified him from a photo as the person responsible for the alleged incident. He told police he had nothing to say in relation to that.

259. He denied knowing either Mr McDonald or Mr Johnson. He was not asked whether he knew Ms Bain. He told police, “someone’s trying to stitch me up”.

Detective Sergeant Nicole Hardy

260. The statement of Detective Sgt Nicole Hardy was tendered in the trial (Exhibit 12).

261. On 18 August 2019 Detective Sargeant Hardy conducted a photo identification procedure with Ms Bain. Ms Bain selected image number 2 during the procedure. Image 2 was a photo of the accused.

Forensic evidence – Crime scene examination of 2/15 Bogan Rd, Booker Bay

262. The following facts were agreed between the parties:

1. At 4.00 am on 8 June 2014 Senior Constable Ian Currie, a police crime scene investigator, attended the residence at 2/15 Bogan Rd, Booker Bay. During his examination of the residence, Senior Constable Currie examined the front door and door jambs of the wooden and screen doors and found no sign of forced entry. Senior Constable Currie took 83 photos of the residence.

2. Senior Constable Currie examined a number of stains throughout the residence and after using a presumptive test, determined that the stains were human blood. The stains were photographed next to markers “A”, “C”, “D”. “1” and “2”. A further human blood stain was discovered on the television in bedroom 1. The blood stains next to markers “A”, “C”, “D”, “1” and “2” and on the television were all swabbed for the purposes of DNA comparison. The swabs were sent to Forensic and Analytical Science Services (“FASS”) for analysis. The DNA recovered from the blood stains was from both Mr McDonald and Mr Johnson (Exhibit 19).

3. Police seized a black balaclava from the floor of bedroom 1 of the residence. The mouth area, the seams and the neck area of the balaclava were all swabbed for the purposes of DNA comparison. The swabs were sent to FASS for analysis.

263. Ms Williams, a senior forensic biologist gave evidence in the trial. She prepared two FASS certificates (Exhibit 19, 20).

264. In summary, she gave evidence of the following DNA results:

1. A swab from the mouth area of the balaclava - DNA recovered is a mixture from at least 3 individuals. The accused cannot be excluded as the major contributor. The DNA from the minor contributors is not suitable for comparison.

2. A tape lift from the neck area of balaclava - DNA recovered has the same profile as Tania Bain.

265. During cross-examination, Ms Williams agreed that in relation to the finding of DNA of at least three individuals on the balaclava, she cannot say which of the individuals was the last in time to use the balaclava.

266. She agreed that a possible scenario was that the major contributor wore the balaclava for lengthy periods and a later person may have only worn it for a short period of time.

267. Police also located five .32 calibre ammunition rounds from the residence. No fingerprints were able to be developed from the .32 calibre ammunition rounds.

268. Three of the .32 calibre ammunition rounds located next to markers “B”, “E” and “F” as depicted in the photos taken by Senior Constable Currie, were all swabbed for the purpose of DNA comparison. The swabs were sent to FASS for analysis. DNA testing on the ammunition was unsuccessful (Exhibit 19).

Evidence in relation to the accused’s access to a vehicle matching the description of the getaway vehicle

Natalie Hodge

269. Ms Hodge gave evidence that she knew the accused because he had been in a relationship with Ms Danielle Wilton.

270. She had worked with Ms Wilton in Newcastle. They also lived in the same street in Doyalson. She gave evidence that sometimes they would travel to work together in Newcastle.

271. As at June 2014, she owned a white Holden Commodore station wagon (Exhibit 1). She gave evidence that she would lend the car to Ms Wilton and the accused.

272. She gave evidence about an occasion in June 2014 when she travelled to Newcastle for work with Ms Wilton and the accused. They then borrowed her car after dropping her at work. She commenced work at 9 pm and was to be collected at 4.30 am.

273. After being picked up from work at 4:30 am, the accused was driving the car. She described that he was quiet and did not speak and there was a mark on his face. She asked him what had happened. He didn’t answer, and they drove home. She described the mark on his face as being “a bit of a swollen face”. She gave evidence it was not uncommon for Ms Wilton and the accused to borrow her car while she was at work.

274. During cross-examination she indicated that her vehicle in June 2014 had the same appearance as in the photographs in Exhibit 1. She agreed that her vehicle had no roof racks in June 2014.

275. She was asked whether she remembered what the accused was wearing on the evening that she observed the injury. She could not remember what he was wearing. She was then reminded of the description she gave in her police statement made on 5 April 2017. In her police statement she described the accused is wearing a light grey hoodie.

Evidence of other associates of the accused

Stacey Morgan

276. Ms Morgan knew both the accused and his former partner, Ms Wilton. She described herself as being friends with Ms Wilton and would look after her children. She would look after her children whilst Ms Wilton went to work in Newcastle.

277. The Crown was given leave to cross-examine Ms Morgan in relation to a conversation between herself and Senior Constable Nichols on 20 November 2014.

278. Ms Morgan indicated that any information she had about an alleged incident came from Ms Wilton and not the accused.

279. She indicated Ms Wilton had told her that her and the accused had gone to the Woy Woy area to get ‘weed’. The original dealer had none so they were sent to a different address. The accused went into that address, got “jumped by three dudes” with baseball bats. Ms Wilton had to drive to Doyalson. Ms Wilton told her he had an injury and that he got “bashed” with baseball bat. Ms Wilton told her they were in Ms Hodge’s car which was a white Commodore station wagon.

280. During cross examination Ms Morgan confirmed that she had no idea when she had spoken to Ms Wilton and she did not know when the incident occurred (other than it was before 20 November 2014 when she had a conversation with Senior Constable Nichols).

281. Neither the Crown nor Mr Stewart sought to rely upon the evidence of Ms Morgan.

Danielle Wilton

282. Ms Wilton gave evidence that she had known the accused for about 6 years. They commenced a relationship in 2014 and lived together. They had a baby together in 2016. She has two other children.

342. In relation to the attempt to influence the evidence of Ms Hodge, it was submitted that it is clear the accused felt aggrieved because she was a friend and he could not understand the reason why she was speaking to police. It was further submitted that throughout the very same calls, the accused indicates that he was not at the location of the alleged offending.

343. In summary, it was submitted that when one looks at all the circumstances relied upon by the Crown, there remains a reasonably possible explanation consistent with innocence namely, that the accused was not the person who committed the alleged offences. In such circumstances, the appropriate verdict is one of not guilty to all counts.

Consideration the evidence relied upon by the Crown to identify the accused as the intruder

Was the balaclava being worn by the intruder removed by Ms Bain?

344. The Crown relies upon the evidence of Ms Bain, Mr McDonald and Mr Johnson to establish that the black balaclava located by police on the floor in Mr McDonald’s bedroom was removed from the intruder’s head during the commission of the alleged offences. Further, the Crown relies upon a finding of a DNA profile matching Ms Bain on the neck area of the balaclava to support her evidence and the evidence of Mr McDonald that she was the person who removed the balaclava from the intruder’s head.

345. Ms Bain gave evidence during the trial that she removed the balaclava from the intruder. Whilst she had not told police in her original police statement that she had removed the balaclava, I accept the evidence she gave during the trial in circumstances where firstly, it is supported by the DNA evidence that establishes that a DNA profile matching Ms Bain was found on a swab taken from the neck of the balaclava (consistent with her having touched the balaclava) and secondly, Mr McDonald gave evidence during the trial that she had removed the balaclava.

346. In relation to Mr McDonald’s evidence in his hospital police interview that he had removed the balaclava, I am satisfied that he was mistaken. That mistake is likely explicable in circumstances where at the time of the hospital police interview Mr McDonald was undergoing medical treatment as shown in the video of the police interview (Exhibit 16).

The balaclava being worn by the intruder belongs to the accused

347. Having regard to the accused’s admission in the gaol call, I am satisfied that he owns the balaclava that was being worn by the intruder.

Two other DNA profiles located on the balaclava

348. I accept that the location of at least two unidentified DNA profiles (minor contributors) on the balaclava is consistent with two other individuals having also worn the balaclava.

In June 2014 the accused had access to a vehicle consistent with the description of the getaway vehicle

The evidence of Ms Bain in relation to the description of the vehicle

349. During the ‘000’ call made by Mr Bulloch at 1.46 am on 8 June 2014 whilst Ms Bain was present, Mr Bulloch told the operator that the vehicle that had left the scene was a “Commodore station wagon”. I am satisfied this information was given to Mr Bulloch by Ms Bain. Whilst the colour was initially identified as blue, Ms Bain corrects the description later in the ‘000’ call identifying the vehicle as a “white station wagon, Commodore”.

350. During evidence in chief Ms Bain was asked what she saw on the roof of the vehicle. She gave the following evidence:

“it looked like roof rails, like two, two black things just sitting on top of the roof” (T 7.11-7.12 29/5/20).

351. Whilst I accept that the registration number of the vehicle was not given (in order to prove it was, in fact, Ms Hodges’ vehicle), I am satisfied that the description given by Ms Bain of a vehicle that was parked on the street at the front of the unit block and that quickly drove off very shortly after she left the unit to get help, is consistent with a vehicle owned by Ms Hodge as shown in Exhibit 1. I am further satisfied having regard to the evidence of Ms Hodge and the admission made by the accused during the gaol call, that this vehicle was regularly used by the accused at the relevant time.

352. Whilst Ms Hodge identifies one occasion in June 2014 when the accused collected her from work and had “a bit of a swollen face”, I am not satisfied there is sufficient evidence to link this specific evidence to the alleged incident of 8 June 2014. Whilst I do not propose to rely upon that evidence in determining whether the Crown has proved beyond reasonable doubt that the accused is the intruder, I am satisfied that the description given by Ms Bain of the make, model and colour of the vehicle in combination with the description of the black roof rails is circumstantial evidence of some importance when considered in combination with the evidence that establishes the intruder was wearing the accused’s balaclava.

353. Specifically, it is the coincidence of the timing of those two events. That is, the person is inside the unit is wearing the accused’s balaclava immediately before a vehicle consistent with the description of a vehicle the accused used at the relevant time (same make, model, colour and with black roof rails) leaves from outside the unit.

354. The coincidence in the timing of the existence of these two pieces of circumstantial evidence in my view, creates a powerful and compelling circumstantial case.

Gaol calls

Attempt to influence witness (gaol calls of 26 and 27 May 2020)

355. Ms Hodge gave evidence in the trial on 27 May 2020. The significance of Ms Hodge’s evidence is that she provides a circumstantial link between the accused and the getaway vehicle in circumstances where she gave evidence that she would lend her vehicle to the accused in June 2014.

356. Having regard to the gaol call of 26 May 2020, I am satisfied that on the day before Ms Hodge gave evidence in the trial, the accused asked his mother to make contact with Ms Hodge (through the person “Matt”) to tell her that if she goes to Court she should say she was mistaken in relation to her evidence. I am satisfied this was an attempt to influence Ms Hodge to change her evidence.

357. I am further satisfied that he sought to influence her evidence because of his knowledge that he had used Ms Hodge’s vehicle as the getaway vehicle and hence, her evidence that he borrowed her vehicle when she was at work would implicate him in the commission of the offence.

358. I am satisfied the Crown has excluded the reasonable possibility that his conduct can be explained by panic or fear of wrongful accusation in circumstances where, if he knew he was not implicated in the offence by the use of Ms Hodge’s vehicle, then there was simply no reason for him to have any concern whatsoever about this evidence.

359. Further, whilst the accused during the gaol calls indicates, “it’s all bullshit, they’ve got the wrong person”, I regard such comment as completely inconsistent with the degree of concern he demonstrates during the calls in relation to the inculpatory evidence of Ms Hodge. In my view, the comment is likely to be for the sole purpose of providing reassurance to his mother.

360. Accordingly, I am satisfied that I can draw an inference that the accused’s guilty conscience motivated this conduct. I remind myself that whilst I can rely upon this inference as evidence pointing towards the guilt of the accused, standing by itself, the evidence could not prove his guilt.

Admissions

361. In relation to the call of 29 May 2020, I am satisfied that the accused admits that his balaclava was found at the unit.

362. The accused mother then asks the accused, “Dee’s going to get on the whatsee and she was with you that night, wasn’t she?” The accused replies, “Yeah so it should be all good”. Having regard to the question, it is unclear whether when the accused replies “yeah”, it is an acknowledgement of the fact that “Dee is going to get on the whatsee” or whether he is acknowledging that she was with him that night. In such circumstances, I do not propose to rely on this evidence as an admission that Ms Wilton was with him on the night of the alleged offending.

363. In relation to the call of 30 May 2020, the accused states, “but I think the night they’re talking about… Dave was at my house”. I am not satisfied this is capable of constituting an admission given that the reference is to the night other people are talking about.

364. During this call, the Crown also relies upon the accused’s apparent concern with respect to Ms Wilton giving evidence as demonstrating a consciousness of guilt. The Crown submits that the accused is concerned about Ms Wilton giving evidence because he knew she was with him on the night of the alleged offending.

365. In circumstances where no evidence was led in the Crown case to show that Ms Wilton was with the accused on the night of the alleged offending, I am not satisfied there is sufficient evidence to establish why it was that the accused was concerned about Ms Wilton giving evidence. In such circumstances, I do not propose to rely upon this evidence as demonstrating a consciousness of guilt.

Identification evidence

The identification of the accused by Mr McDonald from Facebook and at Wyong Probation and Parole office

366. I accept the evidence of Mr McDonald that when he located the Facebook photo of ‘Jake Shivy’ (Exhibit 3C) he honestly believed that this person was the intruder.

367. In relation to the identification by Mr McDonald of the accused as the intruder at the Wyong Probation and Parole office, I accept that there were two occasions in late 2016 when both the accused and Sherrin Dixon were in attendance at the office providing an opportunity for Mr McDonald to see the accused. I accept Mr McDonald’s evidence that he had attended the office with Sherrin Dixon and had seen a person that he recognised as the intruder. To the extent that Sherrin Dixon’s evidence is inconsistent with the evidence of Mr McDonald, I prefer the evidence of Mr McDonald given that Mr McDonald would have had a reason to remember the events of the day.

368. I remind myself that in relation to identification evidence, honest witnesses can be very convincing even though mistaken.

369. In relation to assessing the reliability of each identification by Mr McDonald, I remind myself of the need to approach the identification evidence with special caution before I accept it as reliable.

370. In assessing the identification evidence of Mr McDonald, I have taken into account the following factors:

1. That Mr McDonald was identifying a stranger.

2. The circumstances in which he made his original observations of the intruder were highly stressful and the opportunity he had to make observations of the intruder were limited given the short duration of the incident.

3. I am satisfied Mr McDonald was in very close proximity to the intruder and was focusing his attention upon him when firstly, the intruder came into his bedroom with the pistol, secondly he struggled with the intruder with the pistol and thirdly, at some stage the intruder was top of him when he had his back on the floor.

4. I accept his evidence that he was able to see the intruder because the light was on (although he was unsure which light was on). He gave evidence he had a “pretty good look at the face of the intruder”.

5. Mr McDonald observed a number of physical features of the intruder including white skin, a nose piercing, a black tooth, height of probably 5’11’’and a bit muscular with light brown hair and a tattoo on the left side of his neck.

6. Mr McDonald provided a description of the intruder to police during his hospital police interview conducted on 8 June 2014 and also in his police statement dated 27 June 2014. He had initially described the intruder’s hair as blonde.

7. Having regard to the available evidence, I am satisfied that the identification of the accused by Mr McDonald as the intruder using the Facebook photo occurred in either late 2014 or early 2015 after Mr McDonald had heard a rumour that the intruder was ‘Jake Shivy’ and had subsequently searched Facebook for a photo of a person by that name.

8. There was a delay of some months up until 2015 before Mr McDonald identified the accused as the intruder from the Facebook photo. There was a delay of over 2 years before Mr McDonald identified the accused as the intruder when he saw the intruder at the Wyong Probation and Parole office in late 2016.

9. I am satisfied that the identification by Mr McDonald of the intruder at the Wyong Probation and Parole office occurred after he had located the Facebook photo in the name of ‘Jake Shivy’.

371. I remind myself that I must give consideration to each of those matters and that any one of those circumstances may possibly lead to error.

372. In relation to Mr McDonald’s identification of the intruder from a single Facebook photo, the limitations of evidence of identification from a single photo are well understood. Not only did Mr McDonald only see one photo, but he had heard that the person shown in the photo was the intruder. Whilst the Crown submitted that the identification was still of some reasonable probative value because, inter alia, Mr McDonald had to search Facebook to find the name ‘Jake Shivy’, which it was submitted is different to being shown a single photo by police and being asked, “is this the man that attacked you?” I do not accept that submission. I am satisfied that the provision of a name before the identification and information suggesting that person is the intruder, further compounds the weaknesses associated with identification from a single photo. In such circumstances, I am satisfied that the identification from the Facebook photo is of no probative value and I do not propose to rely upon this evidence in determining whether I am satisfied that the Crown has proved that the accused is the intruder.

373. In relation to the identification at the Wyong Probation and Parole office in late 2016, in circumstances where this identification occurred after Mr McDonald had located the Facebook photo of ‘Jake Shivy’, I am not satisfied that the Crown can exclude the possibility that the identification was the result of the displacement effect, that is, that Mr McDonald was identifying the person he saw in the Facebook photo in late 2014 or early 2015 rather than the person he saw during the alleged incident on 8 June 2014.

374. Whilst the Crown submitted that the Court could be satisfied that Mr McDonald’s identification was not the result of the displacement effect because Mr McDonald had relied upon a neck tattoo to identify the person as the intruder (an identifying characteristic which is not clearly visible on the Facebook photo), I am not satisfied that the Crown can exclude the reasonable possibility of the identification being the result of the displacement effect in circumstances where the Court simply could not be satisfied that the Facebook photo played no role in the subsequent identification at the Wyong Probation and Parole office.

375. This is principally because Mr McDonald has given two different accounts in relation to the circumstances in which he saw the intruder at the Wyong Probation and Parole office. In evidence-in-chief he indicated that he was waiting outside the office when he was approached by a male to light a cigarette and recognised a neck tattoo. However, in cross-examination he agreed that in his police statement dated 23 March 2018 he had said he was seated in the foyer of the Wyong Probation and Parole office when he saw a male approach the counter who he recognised, at that time, as the intruder.

376. In such circumstances, I do not propose to rely on the evidence of Mr McDonald in relation to either the Facebook photo identification or the identification at the Wyong Probation and Parole office in determining whether the Crown has proved beyond reasonable doubt that the accused is the intruder.

The identification of the accused by Ms Bain from a photo identification procedure on 18 August 2019

Did Ms Bain remove the balaclava?

377. I have previously indicated that I accept the evidence of Ms Bain that she removed the balaclava from the intruder. I also accept her evidence that she tried to drag the intruder along the hallway. In such circumstances, I am satisfied that Ms Bain was in very close proximity to the intruder and had an opportunity to observe the face of the intruder.

Is Ms Bain an honest witness?

378. Having heard the evidence of Ms Bain during the trial, I am of the view that she presented as an honest and generally credible witness. I will further elaborate in this regard.

Do I accept that when she selected the accused’s photo, she honestly believed he was the intruder having regard to the following asserted credibility issues?

1. Was she drug affected on the night? I do not accept the evidence of Mr McDonald that Ms Bain had used ice on the night of the alleged offences in circumstances where this was denied by Ms Bain and she provided a reason why she was not using ice, that is, she had found out that she was pregnant. I am not satisfied the evidence of Mr McDonald adversely affects her credibility.

2. Had there been contact between Ms Bain and the accused in 2015 / was she falsely claiming he was the intruder? I accept the evidence of Ms Bain that she did not know the accused before the photo identification procedure in circumstances where her evidence is supported by Mr Moore (that is, it was suggested that on many occasions she had seen the accused when she was in the company of her then partner, Mr Moore). Mr Moore denied knowing the accused. Having seen Mr Moore give evidence, I am satisfied he was a frank and honest witness and I accept his evidence. The evidence of Senior Constable Justin Dover that Ms Bain was listed as a Facebook messenger contact in the accused’s phone that was seized by police in 2017, does not cause me to reject the evidence of Ms Bain in circumstances where there was no evidence there had been any actual contact between Ms Bain and the accused.

3. In relation to Ms Bain’s evidence concerning contact with Mr Moore, I accept that she did not disclose that she had travelled with him to Raymond Terrace Police Station before giving her evidence in the trial on 2 June 2020. I accept this matter is relevant to her credibility and specifically, the question of whether I am satisfied that she was being honest when she selected a photo of the accused as the intruder.

379. I regard Ms Bain as an impressive witness. Whilst I accept that she did not disclose that she had been in the company of Mr Moore on 2 June 2020, that does not cause me to doubt the honesty of her selection of the accused’s photo in the photo identification procedure in circumstances where I am satisfied that there is other evidence that supports her honesty in this regard. Specifically, her reaction when she sees the photo of the accused is highly supportive of her belief that he was the intruder. Ms Bain can be seen physically reacting to the photo of the accused and towards the end of the video she is seen looking away from the screen and expresses some concern relating to whether the person she selected will know where she lives. During her evidence she said that when she was participating in the photo identification procedure:

“when I seen the eyes, I felt sick, like, my heart started pumping and yeah, just was not a good feeling” (T 9.50-10.1 29/5/20).

380. I consider that those matters strongly support a conclusion that Ms Bain honestly believed that the person she had selected was the intruder.

381. In such circumstances, I am satisfied that when she selected the photo of the accused, she honestly believed he was the intruder.

382. I am of the view that her identification of the accused as the intruder was very convincing. I again remind myself that honest witnesses can be very convincing even though mistaken.

383. In relation to assessing the reliability of the identification by Ms Bain, I remind myself of the need to approach identification evidence with special caution before I accept it as reliable.

380. In assessing the identification evidence of Ms Bain, I have taken into account the following factors:

1. That Ms Bain was identifying a stranger.

2. The circumstances in which she made her original observations of the intruder were highly stressful and the opportunity she had to make observations of the intruder was limited to the short duration of the time she had the intruder under observation.

3. I am satisfied that she was in very close proximity to the intruder and focussing her attention upon him when she removed the balaclava and was also dragging the intruder down the hallway. She also spoke to the intruder.

4. I accept her evidence that she was able to see the intruder’s face because the kitchen light was on.

5. The physical feature that Ms Bain noticed was the intruder’s eyes. I am satisfied that the eyes of the intruder would have been a very prominent feature in circumstances where the intruder was initially wearing a balaclava that only had one hole for the eyes (Exhibit 25). In such circumstances, the intruder’s eyes would have been the only feature of the intruder’s face that Ms Bain was able to see until she removed the balaclava.

6. Ms Bain gave evidence that she looked at the intruder’s eyes and described that “he’s just got very distinctive eyes - they were very evil looking eyes” (T 7.40-7.41 29/5/20). The other physical features that she described were the intruder’s height (5’6”), medium build and a “nose piercing, maybe” (T 7.48 29/5/20). Having seen the photo of the accused used in the photo identification procedure, whilst it is difficult to identify any particular characteristic of the accused’s eyes that can be objectively assessed to determine whether the accused’s eyes can properly be characterised as a distinctive feature, I accept that this was the feature that Ms Bain regarded as distinctive.

7. Ms Bain did not provide any description of the intruder on the ‘000’ call.

8. There was a period of 5 years before she participated in the photo identification procedure. I must consider the effects of this delay upon Ms Bain’s memory and her ability to recall the face of the intruder. It was submitted on behalf of the accused that because of this delay, there was a high risk of contamination (namely, that Ms Bain may have found out that Mr McDonald had heard a rumour as to the identity of the intruder, that she may have looked at Facebook or she may have had contact with the accused).

9. During the photo identification procedure, Ms Bain was not able to see the physical build of the accused.

385. I remind myself that I must give consideration to each of those matters and that any one of those circumstances may possibly lead to error.

386. In circumstances where I am satisfied that Ms Bain was in close proximity to the intruder, that his eyes were a prominent feature when he initially was wearing the balaclava and that she regarded his eyes as distinctive, notwithstanding the lengthy period of time between the original observations and the photo identification procedure, I am satisfied that I can rely upon the identification evidence of Ms Bain in determining whether the Crown has proved that the accused is the offender. Having regard to the evidence of Ms Bain, which I accept, I am not satisfied that there was any contamination of her identification evidence by virtue of her having been told of the rumour as to the identification of the intruder, by her looking at Facebook or having contact with the accused.

Other evidence of the physical characteristics of the intruder

387. I have also considered the physical characteristics of the intruder identified by Mr McDonald and Ms Bain that it is submitted on behalf of the accused are inconsistent with the actual physical appearance of the accused and hence, undermine the reliability of Ms Bain’s identification evidence. Specifically:

1. A nose piercing - Both Mr McDonald and Ms Bain described the intruder as having a nose piercing. There is no direct evidence of whether the accused had a nose piercing at the time of the alleged offending on 8 June 2014. It is submitted on behalf of the accused that the evidence of Senior Constable Nichols that he had not found a photo of the accused with a nose piercing on Facebook should create a reasonable doubt as to whether the accused had a nose piercing at the relevant time and hence, whether the Crown has proved he was the intruder. I accept that this evidence is relevant to the likelihood that the accused was the intruder.

2. Black/rotten tooth - Mr McDonald in his police statement dated 27 June 2014 had described the intruder as having a rotten front left tooth. In his hospital interview conducted on 8 June 2014 he had said that it “looked like it was black”. There is no direct evidence as to whether the accused had a rotten tooth at the time of the alleged offending on 8 June 2014. It is submitted on behalf of the accused that the evidence of Dr Yang in relation to the dental work completed in 2012 would make it improbable that the accused would have had a rotten tooth in 2014 which also creates a reasonable doubt as to whether the accused had a rotten tooth at the time of the offending and hence, whether the Crown has proved he was the intruder. I also accept this evidence is relevant to the likelihood that the accused was the intruder.

3. Tattoo on the left side of the neck – It was submitted on behalf of the accused that in circumstances where Mr McDonald described a tattoo on the left side of the intruder’s neck and the accused does not have such a tattoo (Exhibit 8 showing a tattoo on the right side of the neck), that this evidence excludes the accused as being the intruder. Whilst the Crown submitted that it may well be that Mr McDonald is simply mistaken about the side of the neck or it could be a simple miscommunication (because as Mr McDonald was looking at the intruder the tattoo would have been to Mr McDonald’s left side) the evidence remains inconsistent with the appearance of the accused. I accept that the evidence of Mr McDonald in relation to the location of the neck tattoo is inconsistent with the physical appearance of the accused.

4. The description of blonde hair - In evidence-in-chief Mr McDonald was asked whether the intruder had blonde hair. He said “it was brownish” (T 29.48 25/5/20). In cross-examination it was suggested to Mr McDonald that when he made his police statement dated 27 June 2014 he said that, “His hair was blonde in colour” (T 15.1 26/5/20). He said he did not remember telling police the hair was blonde. He said, “It was like a light brown, light - light coloured” (T 15.8 26/5/20). He further clarified “blondish, but not blonde” (T 15.27 26/5/20). It was suggested to Mr McDonald in cross examination that he had changed his evidence because he could now see the accused on the AVL and his hair was brown. Mr McDonald said the intruder’s hair was “Light brown. Same colour to me” (T 16.7 26/5/20). I accept that the evidence of Mr McDonald in his original police statement (namely, that the intruder had blonde hair) is inconsistent with the physical appearance of the accused.

Consideration

388. Having regard to all of that evidence, I have considered whether the identification evidence of Ms Bain in combination with the circumstantial evidence relied upon by the Crown is capable of proving beyond reasonable doubt that the accused was the intruder. Ultimately, in circumstances where I consider that the circumstantial evidence is compelling, I am satisfied that it eliminates any reasonable doubt that would otherwise arise as a result of the evidence concerning the physical characteristics of the intruder that are either inconsistent with the appearance of the accused or make it improbable that he is the intruder.

389. Specifically, I do not consider that the absence of a Facebook photo of the accused with a nose piercing at the relevant time creates a reasonable doubt about the identity of the accused as the intruder, given that this is not a permanent physical feature.

390. In relation to the evidence of Dr Yang concerning the dental work undertaken in 2012, I am not satisfied this evidence creates a reasonable doubt about the identity of the accused as the intruder in circumstances where Dr Yang conceded in evidence that it was possible that the accused could present with decay at the time of the incident in 2014.

391. I accept that the evidence of Mr McDonald in relation to the intruder having a neck tattoo on his left side and his initial description of the intruder as having blonde hair are each matters that would exclude the accused from being the intruder. However, given the strength of the circumstantial evidence and the possibility that Mr McDonald was simply mistaken in relation to the location of the neck tattoo and his initial description of the hair colour, I am not satisfied this evidence creates a reasonable doubt with respect to the identity of the accused as the intruder.

392. Having considered the available evidence, I am satisfied that the identification evidence of Ms Bain in combination with the circumstantial evidence (namely, that the accused’s balaclava was being worn by the intruder, the getaway vehicle matching the description of the vehicle used by the accused at the relevant time and his attempt to influence the evidence of Ms Hodge, which I am satisfied demonstrates a consciousness of guilt) does exclude any reasonable possibility that the accused is not the intruder.

393. In such circumstances, I reject the accused’s account in his interview with police where he denied any involvement in the alleged offending.

394. Accordingly, I am satisfied beyond reasonable doubt that the accused was the intruder who entered the unit at 2/15 Bogan Road Booker Bay on 8 June 2014.

Consideration of each count on the indictment

Count 1

395. It was submitted on behalf of the accused that the Crown cannot establish that the accused broke into the unit in circumstances where the unchallenged evidence of Mr McDonald was that both the front wooden door and screen door were locked before he went to bed and the back door is always locked however, there is no evidence of damage to any of the doors to enable the accused to enter. Further, there was no evidence of the opening of a closed door.

396. The Crown submitted that in circumstances where, when Ms Bain ran out to get help the front wooden door was open and screen door was shut but unlocked, the only rational conclusion is that the accused opened the front door to gain entry.

397. Having regard to the evidence of Mr McDonald that all the doors were locked and, in the absence of any evidence of forced entry, I am unable to be satisfied to the requisite standard as to how the accused entered the unit. I am not satisfied that the only rational inference is that the accused opened a closed but unlocked front door to gain entry in circumstances where there is no evidence as to how both the front doors came to be unlocked after Mr McDonald had locked them before going to his bedroom. In such circumstances, I am not satisfied the Crown has established a “break”. Accordingly, the Crown has not established Count 1 beyond reasonable doubt.

Count 2

398. I am satisfied that the accused entered the unit with the intention to commit a serious indictable offence, namely robbery in circumstances where I accept the evidence of Mr McDonald that whilst the physical altercation was occurring between himself and the accused, that the accused said, “give me your money”.

399. I am also satisfied that the accused knew there were persons inside having regard to the presumption in section 105A(2A), Crimes Act1900 (NSW).

400. I am further satisfied that at the time the accused entered the unit he was armed with a dangerous weapon, namely a firearm. I am satisfied the firearm was (or at any time was) capable of propelling a projectile by means of an explosive in circumstances where five .32 calibre rounds of ammunition were found in the unit that I am satisfied had fallen out of the firearm.

401. Having regard to those findings, I am satisfied that Count 2 has been proved beyond reasonable doubt.

Count 3

402. I am satisfied that the accused wounded Mr McDonald having regard to the Agreed Facts (Exhibit 23 at [1]).

403. I am satisfied that at the time the accused wounded Mr McDonald he was reckless as to the causing of actual bodily harm in circumstances where he was armed with a knife and stabbed at Mr McDonald. I am satisfied that in such circumstances he must have thought about and realised the possibility that actual bodily harm may be caused and went ahead and acted as he did.

404. Having regard to those findings, I am satisfied that Count 3 has been proved beyond reasonable doubt.

Count 4

405. I am satisfied that the accused wounded Mr Johnson having regard to the Agreed Facts (Exhibit 23 at [2]).

406. I am satisfied that at the time that the accused wounded Mr Johnson he was reckless as to causing actual bodily harm in circumstances where he was armed with a knife and stabbed at Mr Johnson. I am satisfied that in such circumstances he must have thought about and realised the possibility that actual bodily harm may be caused and went ahead and acted as he did.

407. Having regard to those findings, I am satisfied that Count 4 has been proved beyond reasonable doubt.

Orders

408. Accordingly, my orders are as follows:

1. In relation to Count 1, I find the accused not guilty.

2. In relation to Count 2, I find the accused guilty.

3. In relation to Count 3, I find the accused guilty.

4. In relation to Count 4, I find the accused guilty

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Decision last updated: 18 December 2020