R v Bessa Da Silva - [2022] SASC 28

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)

R v BESSA DA SILVA
Criminal Trial by Judge Alone
[2022] SASC 28
Reasons for the Verdict of the Honourable Justice Stein
25 March 2022
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - ATTEMPT - PARTICULAR OFFENCES - ATTEMPTED MURDER
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY - WOUNDING OR SHOOTING OFFENCES - SHOOTING
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - CIRCUMSTANTIAL EVIDENCE - REASONABLE HYPOTHESIS CONSISTENT WITH INNOCENCE
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - AID, ABET, COUNSEL OR PROCURE - GENERALLY
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - COMMON PURPOSE OR JOINT CRIMINAL ENTERPRISE - GENERALLY
On 23 April 2020, the victim was shot in the face while seated in the driver’s seat of his vehicle. The defendant was charged with the attempted murder of the victim contrary to ss 11 and 270A of the Criminal Law Consolidation Act 1935 (SA) and, in the alternative, aggravated causing serious harm with intent to cause serious harm contrary to s 23(1) of the Criminal Law Consolidation Act 1935 (SA). The prosecution case relied on circumstantial evidence, including CCTV footage prior to and after the shooting.
Held, acquitting the defendant of both charges:
1.The evidence was insufficient to prove beyond reasonable doubt that the defendant shot the victim.
2.The evidence was insufficient to prove beyond reasonable doubt that the defendant was engaged in a joint criminal enterprise with, or aided and abetted, another person who was present at the time the victim was shot.

Juries Act 1927 (SA) s 7; Criminal Law Consolidation Act 1935 (SA) ss 11, 23(1), 267, 270A; Evidence Act 1929 (SA), referred to.
Domican v The Queen (1992) 173 CLR 555; Giorgianni v The Queen (1985) 156 CLR 473; Kural v The Queen (1987) 162 CLR 502; Likiardopoulos v The Queen (2012) 247 CLR 265; McAuliffe v The Queen (1995) 183 CLR 108; Miller v The Queen (2016) 259 CLR 380; R v Baden-Clay (2016) 258 CLR 308; R v BS [2020] SASC 138; R v Cekic [2015] SASC 47; R v Golding and Edwards (2008) 100 SASR 216; R v Micallef (2002) 136 A Crim R 127; Shepherd v The Queen (1990) 170 CLR 573; R v Singh [2019] SASCFC 51; R v Sully [2011] SASC 169; R v Tartaglia (2011) 110 SASR 378, applied.
Barca v The Queen (1975) 133 CLR 82; Dansie v The Queen [2020] SASCFC 103; Holland v Jones (1917) 23 CLR 149; Nasaris v The Queen [2021] SASCA 143; Peacock v The King (1911) 13 CLR 619; Plomp v The Queen (1963) 110 CLR 234; Davidson v The Queen (2009) 75 NSWLR 150; R v Hillier (2007) 228 CLR 618, considered.

R v BESSA DA SILVA
[2022] SASC 28
Criminal: Trial by Judge Alone
STEIN J:
Overview

On 23 April 2020, Mr Jason Kingston (“Mr Kingston”) was shot in the face (“the shooting”) while seated in the driver’s seat of his vehicle. The shooting occurred at about 2.03am in front of a property at 3 Dunn Road, Waterloo Corner (“Property”). Mr Kingston was found by paramedics shortly after 2.25am further down Dunn Road slumped against a fence. He was treated by paramedics at the scene and then taken to the Royal Adelaide Hospital where he required treatment including surgery. Mr Kingston lost his sight in both eyes.
Following a police investigation, Mr Bessa Da Silva was charged with the attempted murder of Mr Kingston pursuant to ss 11 and 270A of the Criminal Law Consolidation Act 1935 (SA) (“CLC Act”). In the alternative, he was charged with aggravated causing serious harm with intent to cause serious harm pursuant to s 23(1) of the CLC Act. Mr Bessa Da Silva pleaded not guilty to both charges.
Trial by Judge alone
Mr Bessa Da Silva elected for trial by Judge sitting alone pursuant to s 7 of the Juries Act 1927 (SA).
Presumption of innocence
Mr Bessa Da Silva has the presumption of innocence. He is innocent on the charges unless and until the prosecution prove his guilt beyond reasonable doubt. The burden of proving the charges lies wholly on the prosecution.
Mr Bessa Da Silva cannot be found guilty of the offences unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt.
The prosecution case
A significant part of the prosecution case is based on CCTV footage obtained from the Property.
I summarise the prosecution case as follows.
Mr Kingston was shot while seated in the driver’s seat of his vehicle which was pulled up alongside a gate and chain mesh fence located at the front of the Property.
The Property was, at the time, the home of an associate of the accused, Mr Jamie Johnstone (“Mr Johnstone”).
Mr Bessa Da Silva and Mr Johnstone spent time together during the day on 22 April 2020. At 1.45am on 23 April 2020, Mr Bessa Da Silva arrived at the Property. The closed gate located at the front of the property was opened by Mr Johnstone. Mr Bessa Da Silva drove his vehicle (a silver Volkswagen Golf) (“Golf vehicle”) down a driveway to the rear of the Property and the gates were shut behind him. Between about 1.47am and 2.02am, Mr Bessa Da Silva was in the carport area (“carport area”) located at the rear of the Property. The carport area extended behind the back of the house on the Property. During this time frame, Mr Bessa Da Silva paced in what the prosecution described as an agitated fashion, looking towards the direction of the front gate. Mr Bessa Da Silva held a knife, thereafter picked up a long-bladed weapon (described as a samurai sword) and then picked up a second samurai sword.
Mr Johnstone is not seen on CCTV footage picking up any weapon.
At 2.02am, Mr Kingston’s vehicle arrived at the front of the Property, pulling up with the passenger side of the vehicle alongside the fence and gate. Approximately 10 seconds later, Mr Johnstone walked to the gate while Mr Bessa Da Silva remained in the rear carport area. At about 2.02am, Mr Bessa Da Silva picked up an object which the prosecution asserts was a sawn‑off shotgun. After a further 10 seconds, Mr Bessa Da Silva walked in the direction of the front of the Property.
At 2.03am, Mr Kingston was seated in his vehicle (on the Dunn Road side of the Property fence) and Mr Johnstone (standing on the Property side of the fence) was interacting with him through the fence. The prosecution asserts Mr Johnstone and Mr Kingston were unarmed.
CCTV from the Property contains footage recorded shortly prior to and after the shooting. The precise events of the shooting occur during a black spot in the CCTV footage of about 1 minute and 2 seconds between 2.03am and 2.04am. That black spot in the CCTV footage cannot be explained.
At 2.04 am, Mr Johnstone walked from the front of the Property to the rear carport area. Mr Bessa Da Silva shortly thereafter, at 2.04am, got into the Golf vehicle in the rear carport area, placed an item, said to be the shotgun, on the front seat, then reversed down the driveway and left the Property.
At 2.15am, Mr Johnstone threw two items over the back fence of the Property.
In a subsequent search, two shotgun shells were found caught in shade cloth of a neighbouring market garden property.
It is an agreed fact that at 2.09am on 23 April 2020, a 000 call at 3 Dunn Road resulted in police and ambulance services attending.
A paramedic arrived at the scene at about 2.25am and police officers arrived at the scene at 2.28am.
Mr Bessa Da Silva was arrested on 23 April 2020. Searches were conducted of the Property, the residence of Mr Bessa Da Silva and the residence of his sister. Various forensic analysis was conducted, including in relation to Mr Kingston’s vehicle and the Golf vehicle. Material consistent with gunshot residue was found on the steering wheel, hand brake, gear lever and turn indicator stalk of the Golf vehicle.
The prosecution case is that Mr Kingston was shot through the passenger side open window of Mr Kingston’s vehicle with a sawn-off shotgun at close range between 2.03am and 2.04am, resulting in his injuries.
The prosecution’s primary case is that Mr Bessa Da Silva discharged the firearm and did so deliberately, on the basis that the requisite intention to kill can be inferred from the act of shooting the face at close range. I will refer to this aspect of the prosecution case as the “primary liability case”.
The alternative case put by the prosecution is that if Mr Bessa Da Silva was not the shooter, the shooter must have been Mr Johnstone. In that event, the prosecution case is that Mr Bessa Da Silva introduced the firearm into the situation that occurred at Mr Kington’s vehicle, allowing Mr Johnstone access to it. The prosecution puts its alternative case on the basis of either a joint criminal enterprise between Mr Bessa Da Silva and Mr Johnstone or Mr Bessa Da Silva aiding and abetting Mr Johnstone in the shooting. The prosecution case entails excluding the possibility that Mr Johnstone acted alone. I will refer to the alternative prosecution case as the “ancillary liability case”.
Neither Mr Kingston nor Mr Johnstone would co-operate with the prosecution and neither were called to give evidence.
A significant part of the prosecution case was circumstantial and relies on me drawing a number of inferences.
Critical issues for consideration
The prosecution states there are two key issues and subsidiary issues for me to determine.
The first key issue (for the primary liability case) is whether I am satisfied beyond reasonable doubt that Mr Bessa Da Silva was the shooter.
If I am not satisfied beyond reasonable doubt that Mr Bessa Da Silva was the shooter, the subsidiary issues (for the accessorial liability case) are whether the prosecution has proved beyond reasonable doubt that Mr Bessa Da Silva introduced a firearm pursuant to a joint criminal enterprise with Mr Johnstone or whether Mr Bessa Da Silva aided and abetted Mr Johnstone in the offending.
The second issue is whether the prosecution has excluded beyond reasonable doubt any lawful justification for the offending.
Legal elements of attempted murder
The accused was charged with the offence of attempted murder.
The particulars of the charge are that on 23 April 2020 at Waterloo Corner Mr Bessa Da Silva attempted to murder Jason Kingston.
In order to prove the offence of attempted murder (primary liability case), the prosecution must prove the following three elements beyond reasonable doubt:[1]
1. the accused intended to kill the victim;
2.the accused attempted to execute that intention to kill in the sense that the accused did an act or a series of acts which were immediately directed towards fulfilling that intention; and
3. the act or series of acts were done without lawful excuse.
[1] R v BS [2020] SASC 138 at [6] per Lovell J.
In order for Mr Bessa Da Silva to be guilty of attempted murder on the prosecution’s primary case, I must be satisfied beyond reasonable doubt that Mr Bessa Da Silva intended to kill Mr Kingston, attempted to carry out that intention by an act, being the shooting of Mr Kingston, and that the shooting was done without lawful excuse.
Joint enterprise
In order to prove the alternative ancillary liability case, the prosecution must establish the existence of a joint criminal enterprise or establish that Mr Bessa Da Silva aided and abetted Mr Johnstone.
A joint criminal enterprise exists where two or more people agree to carry out acts involving the commission of a crime. If the offence is committed pursuant to that agreement, all those participating are guilty, regardless of the particular role each played.
The elements of liability under the doctrine of joint criminal enterprise are:[2]
1.the accused entered into an agreement with one or more other people to commit the offence;
2.the accused participated in the joint agreement;
3.while the agreement was on foot, one or more of the parties to the agreement did the acts necessary to commit the charged offence; and
4.the accused had the state of mind necessary to commit the charged offence.
[2] Likiardopoulos v The Queen (2012) 247 CLR 265 at [19]; Miller v The Queen (2016) 259 CLR 380 at [4].
The agreement may be inferred from the conduct of the persons involved.[3]
[3] Miller v The Queen (2016) 259 CLR 380 at [4]; McAuliffe v The Queen (1995) 183 CLR 108 at 114.
In order to find Mr Bessa Da Silva guilty on the basis of joint criminal enterprise, I must find beyond reasonable doubt that Mr Bessa Da Silva entered into an agreement with Mr Johnstone to kill Mr Kingston, that Mr Bessa Da Silva participated in that agreement (by the provision of the shotgun), that Mr Johnstone shot Mr Kingston while that agreement was on foot, and that Mr Bessa Da Silva had the necessary intention for the commission of the offence.
Aid and abet
Section 267 of the CLC Act provides that a person who aids and abets the commission of an offence is liable to be prosecuted and punished as a principal offender. Aiding and abetting requires the accused to do something, whether by words or conduct, to assist or encourage the offender to commit the offence.
To prove guilt based on aiding and abetting the prosecution must prove:[4]
1.a person committed the offence charged;
2. the accused knew the essential facts which make up the offence charged; and
3. the accused intentionally aided and abetted the commission of the charged offence.
[4] Giorgianni v The Queen (1985) 156 CLR 473 at 487-488, 494, 500, 505-507.
Aiding and abetting can be constituted by an accused intentionally assisting the principal offender to commit the offence, intentionally encouraging the principal offender to commit the crime or intentionally conveying to the principal offender by words or presence and behaviour that the accused is assenting to and concurring in the commission of the offence.[5] The prosecution must prove beyond reasonable doubt that an accused intended to aid and abet the offence.
[5] R v Sully [2011] SASC 169 at [158]-[159].
Conviction of the principal offender is not required, however, on the evidence the prosecution must prove that the principal offender committed the offence.[6] Presence and readiness can be evidence relevant to establishing encouragement, however, in the ordinary case more would be required.[7]
[6] Likiardopoulos v The Queen (2012) 247 CLR 265; Giorgianni v The Queen (1985) 156 CLR 473 at 491.
[7] R v Golding and Edwards (2008) 100 SASR 216 at [37]-[42] per Gray J (Doyle CJ and David J agreeing).
In this case the prosecution submits the basis for the allegation of aiding and abetting is that Mr Bessa Da Silva introduced the shotgun without which Mr Johnstone could not have shot Mr Kingston.
In order for Mr Bessa Da Silva to be found guilty by aiding and abetting, I must be satisfied beyond reasonable doubt that Mr Johnstone shot Mr Kingston and that Mr Bessa Da Silva had knowledge of the essential facts needed for Mr Johnstone to be guilty of attempted murder, that is, that Mr Johnstone shot Mr Kingston with the intention of killing him and without lawful excuse.
Legal elements of aggravated causing serious harm with intent
In order to prove the alternative charge of aggravated causing serious harm with intent to cause serious harm the prosecution must prove the following elements beyond reasonable doubt:[8]
1.the accused caused harm to the victim;
2.the accused caused harm that is serious harm;
3.the accused acted deliberately, as opposed to accidentally;
4.the accused acted unlawfully; and
5.at the time the accused caused serious harm, the accused intended to cause serious harm to the victim.
[8] R v Cekic [2015] SASC 47 at [6] per Kourakis CJ.
In order to find Mr Bessa Da Silva guilty of this charge, I must find beyond reasonable doubt that Mr Bessa Da Silva caused harm that is serious harm to Mr Kingston, that he acted deliberately and unlawfully and that at the time he intended to cause serious harm to Mr Kingston. In order to find Mr Bessa Da Silva guilty of this charge on the basis of accessorial liability, I must find beyond reasonable doubt the elements referred to above under the headings “Joint enterprise” and “Aid and abet”.
I remind myself I must decide whether the prosecution has proved its case beyond reasonable doubt only on the evidence and I must consider each charge separately.
Right to silence
Mr Bessa Da Silva chose not to give evidence in this Court. He is entitled to decline to give evidence. I must not draw any inference adverse to him or the case his counsel put forward from the exercise of his right to remain silent. I must not speculate on the reasons why he did not give evidence. I remind myself the prosecution must prove its case beyond reasonable doubt.
Prosecution case
The prosecution called to give evidence the paramedic who was the first to arrive at the scene following the shooting and a number of police officers. This included evidence of various searches which were conducted and the process by which exhibits were collated and logged.
The prosecution also called a number of expert witnesses being a ballistics expert, a blood spatter expert, a trauma surgeon and a gunshot residue expert. A statement of a forensic scientist was tendered by consent.
I set out a summary of the evidence of each of the witnesses below.
I must determine whether each of the witnesses called are truthful and reliable, that is, whether I am able to rely on the evidence given by the witness and find facts about which the witness has given evidence. I am able to accept part of the witness evidence and reject part of that evidence or accept or reject all of it. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of any or all of the elements of the offence charged, Mr Bessa Da Silva remains presumed innocent and I must acquit him.
I must determine the facts in accordance with the evidence considered rationally and logically and without acting capriciously. I may use my common sense and experience in assessing the evidence.
Expert witnesses
Expert evidence was given by a blood spatter expert, Brevet Sergeant Douglas, a ballistics expert, Brevet Sergeant Tobiasen, a trauma surgeon, Dr Bautz, and a gunshot residue expert, Mr Cook.
I direct myself that I must consider the evidence of the expert witnesses together with the evidence of all other witnesses. I must determine what of their evidence I accept and what weight is to be ascribed to that evidence and any inferences that arise from the evidence. I must not capriciously disregard unchallenged expert evidence. I can accept or reject the evidence of an expert witness in the same manner as any other witness. In assessing the evidence of an expert witness, relevant factors for my consideration include the qualifications of the witness, the extent to which their evidence accords with other evidence and their impartiality. I must not blindly follow the opinions of an expert witness.
Agreed facts
The parties agreed, pursuant to the provisions of the Evidence Act 1929 (SA), the following facts:
Caltex CCTV – Direk
1.CCTV depicting events at Caltex Direk at 2-6 Pilatus Dr (Cnr Heaslip Rd, Direk) commencing at about 11.52am on 22 April 2020 was seized by police.
145b Midway Road Elizabeth Park – CCTV
2.CCTV depicting events at 145b Midway Road, Elizabeth Park commencing at about 12.12pm on 22 April 2020 was seized by police.
Caltex CCTV – Springbank
3. CCTV depicting events at Springbank Caltex at 382-396 Waterloo Corner Rd, Burton commencing just after midnight on 23 April 2020 was seized by police.
24 Hall Crescent Burton – CCTV
4. CCTV depicting events at 24 Hall Crescent, Burton commencing at about 3.06am on 23 April 2020 was seized by police.
7 Hoyle Court, Salisbury
5. The silver Volkswagen Golf with SA registration S465CDA was located and seized from 7 Hoyle Court, Salisbury at around 10.15am on 23 April 2020.
6.In and around April 2020 this vehicle was registered to Paula Bessa Da Silva, the sister of the accused.
7.At 10.55am on 23 April 2020, police searched 7 Hoyle Court, Salisbury. The silver Volkswagen Golf was seized and Gunshot Residue swabs were subsequently taken by an experienced crime scene investigator. Gunshot Residue swabs were taken from:
a.      the steering wheel (swab 1),
b.      the manual gear lever, which was in neutral (swab 2),
c.      the handbrake, which was engaged (swab 3), and
d.     the turn indicator stalk (swab 4).
8. The four swabs were booked into the Police Property Management System collectively under the identifier PPMS20/A34080-9.
Addresses
9. In and around 23 April 2020:
a.     7 Hoyle Court, Salisbury was the home address of the accused.
b.      Unit 7, 32 Glenbrook Close, Marden was the home address of the accused’s sister Paula Bessa Da Silva.
Triple Zero
10. At 2.09am on 23 April 2020, a triple zero call that originated from the Property was made in relation to this matter. That call resulted in police and ambulance attending at the Property.
Exhibits

The majority of the exhibits comprise photographs taken by various of the witnesses. They include photographs of the crime scene, photographs of the forensic assessment of Mr Kingston’s vehicle, a table of results produced in relation to gunshot analysis and a bundle of images comprising screenshots from the CCTV footage taken at the Property.
Exhibit P18 is a USB containing various clips of CCTV footage from a number of locations, including the Property, taken on 22 April 2020 and 23 April 2020.
There were no challenges to the chain of evidence or any other such issues relating to the exhibits.
View
After the prosecution opening, a view was conducted of the Property.
I remind myself that the view does not constitute evidence and was for the purpose only of assisting me to understand the evidence subsequently called.
Chronology
The prosecution provided to me a chronology of key points in the CCTV footage which was marked as MFI P19. I remind myself that the chronology is not evidence and I must rely only upon my assessment of the CCTV footage.
Assessment of witnesses
There were no challenges to the reliability or credibility of any of the witnesses. There were no challenges to the expertise of any of the expert witnesses to give the opinion evidence which they gave.
I find all the witnesses were reliable and credible and I accept their evidence. I find the expert witnesses had the necessary expertise to give the opinion evidence they gave. I accept their opinions.
Intention
One element of the charged offences is Mr Bessa Da Silva’s intention.
The state of mind of a person is a fact and is usually inferred from what an accused person does and says. The intention with which Mr Bessa Da Silva did something may be inferred, including from Mr Bessa Da Silva’s actions at the relevant time.[9]
[9] Kural v The Queen (1987) 162 CLR 502 at 504.
An inference must rest on something more than mere conjecture to be reasonable.[10]
[10] Peacock v The King (1911) 13 CLR 619 at 661; R v Baden-Clay (2016) 258 CLR 308 at [47].
Circumstantial evidence
The prosecution case against Mr Bessa Da Silva is circumstantial.
I must apply well-settled principles concerning cases that are based upon circumstantial evidence.[11]
[11] R v Baden-Clay (2016) 258 CLR 308 at [46]-[47].
When the case against an accused is based substantially upon circumstantial evidence, a jury cannot return a verdict of guilty unless the circumstances are inconsistent with any reasonable hypothesis other than the guilt of the accused.[12] It is necessary not only that the accused’s guilt should be a rational inference but that it should be “the only rationale inference that the circumstances would enable [the fact finder] to draw…”.[13]
[12] Barca v The Queen (1975) 133 CLR 82 at 104; Peacock v The King (1911) 13 CLR 619 at 634.
[13] Plomp v The Queen (1963) 110 CLR 234 at 252 per Menzies J.
In Plomp v The Queen (“Plomp”), Dixon CJ said:[14]
If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed.
[14] Plomp v The Queen (1963) 110 CLR 234 at 243 per Dixon CJ.
In R v Micallef, after referring to Plomp, Dunford J said that in cases of circumstantial evidence:[15]
There is often a tendency … to consider whether each individual circumstance can be separately explained away as being consistent with innocence; or to consider whether a path, however tortuous, can be found through a combination of the circumstances, which as a matter of strict logic, is capable of being reconciled with a conclusion of innocence. The correct test, however … is whether, judging the matter rationally in the light of the common experience of human affairs, the combination and totality of the facts proved are consistent with innocence.”
[15] R v Micallef (2002) 136 A Crim R 127 at [42] per Dunford J.
There may be evidence which, considered in isolation, is consistent with innocence. However, all of the circumstances established by the evidence must be considered and weighed in determining whether there is reasonably open on the evidence an inference which is consistent with innocence.[16]
[16] R v Hillier (2007) 228 CLR 618 at [46]-[48] per Gummow, Hayne and Crennan JJ; see also Dansie v The Queen [2020] SASCFC 103 at [295] per Nicholson J; at [446]–[465] per Livesey J.
In R v Baden-Clay (“Baden-Clay”), the High Court stated:[17]
For an inference to be reasonable, it "must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence" (emphasis added). Further, "in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence" (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal.
[17] (2016) 258 CLR 308 at [47].
Mr Bessa Da Silva is not to be found guilty of attempted murder unless the circumstances, as established by all of the evidence, exclude any reasonable explanation consistent with innocence. If on all of the evidence there remains any rational inference consistent with Mr Bessa Da Silva’s innocence, he must be acquitted.
I must first consider the evidence and decide which facts I accept are established. Having done so, I must consider what inferences can be drawn from those established facts.
Shepherd principles?
I must determine whether I accept the submission by counsel for Mr Bessa Da Silva that this is a case in which the principles in Shepherd v The Queen[18] (“Shepherd”) apply. Counsel submitted that Shepherd stands for the proposition that where a piece of circumstantial evidence (referred to as an intermediate fact) is such a critical part of the prosecution case that it becomes a link in the chain of the case, rather than a strand in a rope (using commonly referred to metaphors), then the accused must be acquitted if the intermediate fact is not proved beyond reasonable doubt. Counsel submitted that this is a Shepherd case. He submitted that whether Mr Bessa Da Silva is shown in the CCTV footage in possession of a sawn‑off shotgun is a critical link in the chain, requiring proof beyond reasonable doubt.
[18] (1990) 170 CLR 573.
In Shepherd, the High Court concluded that it is not the case that in a matter based on circumstantial evidence a jury may only properly draw an inference of guilt upon individual items of evidence all proved beyond reasonable doubt. The requirement to meet the burden of proving all elements of the offence beyond reasonable doubt does not mean that every fact and every piece of evidence relied upon to prove an element by inference must be proved beyond reasonable doubt.
However, if it is necessary for the jury to reach a conclusion of fact as an indispensable intermediate step in the reasoning process towards an inference of guilt, that conclusion must be established beyond reasonable doubt.[19]
[19] Shepherd v The Queen (1990) 170 CLR 573 at 585 per Dawson J.
Justice Dawson (with whom Gaudron and Toohey JJ each concurred) pointed out that circumstantial evidence is evidence of facts from which the finder of fact is asked to infer further facts. The ultimate inference must be drawn from some intermediate factual conclusion, proof of which will depend on the evidence. It may itself be a matter of inference or may be a body of individual items of evidence.[20]
[20] Shepherd v The Queen (1990) 170 CLR 573 at 579 per Dawson J.
Justice Dawson continued:[21]
On the other hand, it may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. Not every possible intermediate conclusion of fact will be of that character. If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But where – to use the metaphor referred to by Wigmore on Evidence, vol. 9 (Chadbourn rev. 1981), par. 2497, pp 412-414 – the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning.
[21] Shepherd v The Queen (1990) 170 CLR 573 at 579 per Dawson J.
Justice Dawson pointed out that the prosecution bears the onus of proving the elements of the offence beyond reasonable doubt, but that does not mean every fact or every piece of evidence itself must be proved beyond reasonable doubt. He stated:[22]
But the jury may quite properly draw the necessary inference having regard to the whole of the evidence, whether or not each individual piece of evidence relied upon is proved beyond reasonable doubt, provided they reach their conclusion upon the criminal standard of proof. Indeed, the probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately.
[22] Shepherd v The Queen (1990) 170 CLR 573 at 580 per Dawson J.
However, Dawson J said that it is correct to say that an intermediate fact which is an indispensable step on the path to an inference of guilt must be proved beyond reasonable doubt if the ultimate inference is to be the only reasonable hypothesis.[23] That is the case whether the intermediate fact is a fact derived from a single piece of evidence or a conclusion of fact drawn from a body of evidence.[24]
[23] Shepherd v The Queen (1990) 170 CLR 573 at 581 per Dawson J.
[24] Shepherd v The Queen (1990) 170 CLR 573 at 581 per Dawson J.
In R v Singh (“Singh”),[25] this Court considered the question of whether a certain fact was an indispensable link in the chain of reasoning leading to conviction. Doyle J (with whom Peek and Parker JJ agreed) explained the process of considering a Shepherd direction and determining whether a fact is an indispensable intermediate fact. He said that in considering whether a Shepherd direction is appropriate or necessary, the starting point is that the prosecution case is a circumstantial one. In a circumstantial case, the task of the jury is to consider the evidence as a whole and to decide whether, on the basis of the evidence which is accepted, the relevant element or offences have been proved beyond reasonable doubt. The evidence should not be considered in separate and isolated compartments or a piecemeal fashion.[26] Doyle J continued to explain that, in a circumstantial case, there is no particular standard of proof of individual facts and items of evidence. The jury can accept or reject any aspect of the circumstantial evidence, without determining whether it has been proved beyond reasonable doubt, and can give what weight is considered appropriate to any particular item of evidence accepted by the jury. Having regard to the evidence which the jury accepts and the weight they attribute to that evidence, the jury then weighs up all of the circumstances and decides whether they are satisfied beyond reasonable doubt of the guilt of the accused or of the relevant elements of the offence.[27]
[25] [2019] SASCFC 51 per Doyle J (Peek and Parker JJ agreeing).
[26] Ibid at [83].
[27] Ibid at [84].
Justice Doyle said that there is an exception to this general approach where the case involves “an indispensable intermediate fact”.[28] An indispensable intermediate fact is a fact which, in the context of the case, is an indispensable step in the process of reasoning towards an inference of guilt. In such a case, the jury must find that fact proved beyond reasonable doubt before acting on it.
[28] Ibid at [86].
Justice Doyle continued to say:[29]
In determining whether, in a particular circumstantial case, a Shepherd direction is appropriate, it will be necessary to consider the role and significance of the particular evidence or fact in respect of which the direction is said to be appropriate. If, by reason of either the inherent role or significance of that evidence or fact in the case, or in light of the way in which the case has been conducted, it forms an indispensable link in the chain of reasoning towards the defendant’s guilt, then such a direction may be appropriate.
An item of evidence or fact is more likely to be characterised in this way in a case involving a small number of circumstantial facts. As McHugh J said in Shepherd v The Queen:
Ordinarily, in a circumstantial evidence case, guilt is inferred from a number of circumstances – often numerous – which taken as a whole eliminate the hypothesis of innocence. The cogency of the inference of guilt is derived from the cumulative weight of circumstances, not the quality of proof of each circumstance.
In a particular case, an inference of guilt beyond reasonable doubt may not be able to be drawn unless each fact relied on to found the inference is established beyond reasonable doubt. This is likely to be the case where the incriminating facts relied upon to establish the inference are few in number. But the more facts that are relied on to found the inference of guilt, the less likely it is that each or any fact will have to be proved beyond reasonable doubt to establish guilty beyond reasonable doubt.
[29] Ibid at [89]-[90].
Justice Doyle reviewed a number of authorities which considered the test for identification of indispensable intermediate facts in a circumstantial case including Davidson v The Queen (“Davidson”)[30] and R v Tartaglia (“Tartaglia”).[31]
[30] (2009) 75 NSWLR 150.
[31] (2011) 110 SASR 378.
In Davidson, Simpson J considered that whether or not a fact is an indispensable fact as part of a circumstantial case can be determined by asking whether there would nevertheless be a case to go to the jury in the absence of evidence of that fact.[32] In Tartaglia, Sulan J (with whose reasons Peek J relevantly agreed) suggested that an item of circumstantial evidence may be considered an indispensable link in the chain of reasoning (thus warranting a Shepherd direction) where there are facts which, if not established despite other items of circumstantial evidence, would result in the Crown case collapsing.[33] In that case those facts in effect constitute a link in a chain rather than a strand in a rope (as described in circumstantial evidence cases).
[32] (2009) 75 NSWLR 150 at [74] per Simpson J.
[33] (2011) 110 SASR 378 at [10] per Sulan J.
In Singh, Doyle J noted that the Court is generally reticent to isolate particular items of circumstantial evidence to be the subject of a Shepherd direction.[34]
[34] [2019] SASCFC 51 at [101] and [102]. The Court of Appeal referred to the analysis by Doyle J of the authorities concerning the circumstances in which it may be necessary to give a Shepherd direction in Nasaris v The Queen [2021] SASCA 143 at [37]. In that case the Court of Appeal concluded a Shepherd direction was not required.
In order to determine whether or not this is a Shepherd case, it is necessary for me to consider the prosecution case and the items of circumstantial evidence in the context of that case. I return to consider the applicability or otherwise of Shepherd below.
Witnesses
Mr Tim John
Mr John is an intensive care paramedic. He was the first person to arrive at the Property at about 2.25am. He observed a vehicle facing into a ditch directly opposite the Property. He inspected Mr Kingston’s vehicle without touching it and did not see anyone in it. He spoke to a man standing by the gates of the Property and heard a male voice calling from further down Dunn Road in a westerly direction. He then waited for other crew members to arrive whereupon they located Mr Kingston lying against the cyclone fence with blood on his face and upper body and a swollen face. Once he had been advised there were pellet marks on Mr Kingston’s face, Mr John contacted Medstar and Mr Kingston was transported to the Royal Adelaide Hospital.
During cross-examination Mr John observed that the man attempting to close the gates of the Property was in his mid-twenties with a thin build and perhaps about 5’9” or 5’10”. The man he spoke to at the gates indicated that Mr John should not go down there (towards Mr Kingston) and did not assist Mr John’s understanding of the situation with which he was dealing. Mr John confirmed that Mr Kingston was initially reluctant to talk when he was first approached by the paramedics.
Brevet Sergeant Brendan Toogood
Brevet Sergeant Toogood was the first police officer to arrive at the Property at 2.28am. He gave evidence that he observed Mr Kingston’s vehicle collided with the tree and checked it to ensure no one was in it. Together with his partner, he observed Mr Kingston, then established a command and, with other officers, established a cordoned point to watch the Property and prevent road access. He confirmed the Property gate was shut when he arrived and he did not touch Mr Kingston’s vehicle.
Brevet Sergeant Natasha Douglas
Brevet Sergeant Douglas is a police officer with 10 years of experience in the Forensic Response Section. Brevet Sergeant Douglas gave evidence in relation to her credentials concerning forensic science and blood pattern analysis. She gave evidence of her examination of the scene and of taking photographs of the scene, including Mr Kingston’s vehicle. She observed tyre marks on the road and observed the passenger window of Mr Kingston’s vehicle was down.
Brevet Sergeant Douglas gave evidence of blood spatter located on the external side of the rear right passenger door, on the internal windscreen, wheel and dashboard area, in the soil adjacent Mr Kingston’s vehicle next to the driver’s side and in the soil adjacent the fence where Mr Kingston was found by paramedics.
Brevet Sergeant Douglas did not identify any damage to the passenger’s side of Mr Kingston’s vehicle.
Brevet Sergeant Douglas gave evidence that searches were conducted by police of the front of the Property and the verge using a metal detector but nothing was found.
No weapons were found in Mr Kingston’s vehicle.
Brevet Sergeant Douglas gave evidence of Mr Kingston’s vehicle being transported to the police compound and her examination of it. During the examination she located a spent shotgun wad in the backseat footwell, lead shot on the driver’s seat squab, lead fragments in the right rear passenger footwell and circular impacts in the internal side of the rear right passenger window.
Brevet Sergeant Douglas conducted analysis of the blood droplets in and on Mr Kingston’s vehicle. She concluded the blood droplets next to Mr Kingston’s vehicle were a result of free-flowing blood. The blood droplets at the location where Mr Kingston was found next to the fence were saturation staining consistent with someone actively bleeding in that location. There were multiple blood stain patterns on the internal driver’s door, door trim and glass. Transfer blood stains on the glass had the appearance of smudged finger marks. Blood droplets on the driver’s doorframe were suggestive of the door being open when the blood was deposited.
Brevet Sergeant Douglas concluded that blood patterns on the driver’s side door and blood stains travelling downwards on the internal face of the windscreen opposite the driver’s seat were caused by impact or force of some sort but Brevet Sergeant Douglas could not say whether this was a result of the shooting or the collision. Brevet Sergeant Douglas concluded the depiction of blood droplets on the driver’s side visor and on the internal face of the windscreen and the left passenger side indicated a trajectory from right to left at the time they were deposited, which was consistent with the front passenger window being down at the time.

Brevet Sergeant Douglas concluded that the source of the blood must have been in the driver’s seat or close to it at the time of the deposit. She opined that the driver’s door was open at the time of deposit. She concluded it is possible the blood spatter was consistent with the person being in the driver’s seat and shot from the passenger side of the vehicle with a shotgun shell containing pellets.
In cross-examination, Brevet Sergeant Douglas confirmed that she did not observe that any search was conducted of the agricultural land to the west, east and north-east of the Property.
Brevet Sergeant Michael Tobiasen
Brevet Sergeant Tobiasen gave evidence of his expertise in ballistics and of his examination of Mr Kingston’s vehicle.
He attended at the Property on 23 April at 8.30am, examined Mr Kingston’s vehicle at the scene and then later at the police compound. He took some photographs during the course of his examination.
Brevet Sergeant Tobiasen observed one lead shot on the driver’s seat and impact markings on the rear right passenger window interior. He did not observe any satellite pellet markings on the exterior of Mr Kingston’s vehicle.
Brevet Sergeant Tobiasen formed the view that a shotgun was discharged in the vicinity of Mr Kingston’s vehicle.
Brevet Sergeant Tobiasen observed a spent shotgun wad in the rear left passenger footwell. He also observed lead shot fragments in the rear footwell. He observed damage to the driver’s headrest.
Brevet Sergeant Tobiasen conducted further analysis on 24 April 2020 at the police compound. He observed and analysed the lead shot found and the shotgun wad found in Mr Kingston’s vehicle. From his examination and comparison with reference material, he formed the view that the shotgun wad from Mr Kingston’s vehicle was of the same make and model as a Winchester brand number 9 shot, 12-gauge shotgun cartridge.
Using the damage to the headrest and the damage to the rear passenger window, Brevet Sergeant Tobiasen performed assessments to determine the rough location of the discharge of the firearm. Based on a straight line dissecting the vehicle in half between the driver and passenger sides, he formed the view that the angle of discharge was 30 degrees towards the open window of Mr Kingston’s vehicle.
Brevet Sergeant Tobiasen formed an opinion that the type of weapon used was a shotgun, but he was not able to say definitively what type of shotgun was used and could not exclude the possibility of a homemade type of weapon.
Brevet Sergeant Tobiasen was not able to conclude how close the firearm was to Mr Kingston’s vehicle at the time of the shooting. He gave evidence that factors including the barrel length of the gun used would impact considerably on whether discharge occurred in Mr Kingston’s vehicle or outside away from it.
Brevet Sergeant Tobiasen opined that a shotgun with a full-length barrel would likely have killed Mr Kingston given the greater force generated by a greater length barrel. He therefore concluded the shotgun barrel of the firearm used for the shooting was shorter than a full-length barrel. He gave evidence that if the firearm was discharged a reasonable distance away and had an unmodified barrel, he would have expected to see some satellite impacts on the left-hand exterior of Mr Kingston’s vehicle.
Brevet Sergeant Tobiasen was asked to examine shotgun shells located by police during the investigation. He concluded that the shells he examined (labelled as items 57 and 58) were live Winchester AA 1250, number 9, 12-gauge shotgun cartridges.
In cross-examination Brevet Sergeant Tobiasen stated he had formed the opinion that only one shot was fired. He confirmed that safety mechanisms can be removed from a gun and that accidental discharge can occur.
Detective Brevet Sergeant Alan Tasker
Detective Brevet Sergeant Tasker is an investigator who, with others, searched the Property on 30 June 2020. He took photographs during the search and located shotgun cartridges in bedroom two of the Property.
Detective Brevet Sergeant Logan Sargent
Detective Brevet Sergeant Sargent conducted a search on 23 April 2020 of the residential premises of Mr Bessa Da Silva’s sister. He observed the arrest of Mr Bessa Da Silva, took a number of photos and observed items of clothing which were located within the washing machine and which were wet. Detective Brevet Sergeant Sargent located a wallet containing Mr Bessa Da Silva’s Medicare card and a driver’s licence with his photograph.
Detective Brevet Sergeant Sargent also attended the Property on 28 April 2020. Having viewed the CCTV footage that had been seized from the Property, and having observed footage, Detective Brevet Sergeant Sargent was involved in conducting a search of neighbouring properties. During that search, a small red shotgun cartridge dangling from the shade cloth and a second shotgun cartridge caught in the shade cloth of a neighbouring property were located. Photographs were taken of the items.
Doctor Peter Bautz
Doctor Bautz is a senior consultant in general, emergency and trauma surgery with over 30 years of experience as a trauma surgeon. He practiced in South Africa at a hospital which managed over 1000 cases of gunshot wounds per year.
Doctor Bautz was the treating surgeon for Mr Kingston at the Royal Adelaide Hospital. He took photographs of Mr Kingston’s injuries.
Doctor Bautz gave evidence that Mr Kingston had obvious close range shotgun injuries to his face and neck. As a result, Mr Kingston was blind and probably effectively permanently blind because of his injuries. There were numerous entry wounds, mainly to the left-hand side of his face, with some on the right-hand side and a single wound in his upper chest. Mr Kingston had a wound on the left side of his face from the shotgun wad hitting him in the face.
Doctor Bautz considered that the injury caused by the wad was typical of a close range shotgun injury. He gave evidence that in the case of a standard shotgun shot within four metres, the wadding will hit and penetrate the person. The closer the shooter is, the deeper and more forceful the injury.
Doctor Bautz considered the small wounds on Mr Kingston were consistent with 2-3mm pellets. Doctor Bautz opined that the injuries to Mr Kingston were inconsistent with Mr Kingston being shot with an unaltered shotgun at close range. Based on the nature and depth of his injuries, he considered the injuries were consistent with Mr Kingston being shot at close range with a sawn-off shotgun. Doctor Bautz thought that Mr Kingston must have been facing slightly towards the left-hand side for the injuries to be as they were.
Brevet Sergeant Daryl Drury
Brevet Sergeant Drury was present at the search of Mr Bessa Da Silva’s home address. He took photographs of the search and seized various items of clothing being black Adidas shoes, khaki pants and a black t-shirt with a Nike Air motif. He did not locate any firearms or ammunition.
Brevet Sergeant Drury also searched a silver Volkswagen Golf located at that address and found a golf club, two knives and a samurai sword. He gave evidence that, due to a miscommunication between him and other searching officers, neither the knives nor sword were photographed.
Brevet Sergeant Luke Davis
Brevet Sergeant Davis attended the Property on 30 June 2020. His role was exhibits officer. He gave evidence of the location of a case containing shotgun shells located in bedroom two of the Property. He gave evidence of the seizure of various electronic devices including a hard drive for the CCTV and cameras.
Mr Michael Cook
Mr Cook has been a member of Forensic Science SA since 2004 and works in the team dealing with nonbiological trace evidence (including explosives, chemicals and gunshot residue).
Mr Cook gave evidence of his analysis of items in relation to gunshot residue. Mr Cook was asked to analyse swabs taken from the Golf vehicle and Mr Bessa Da Silva’s hands. He conducted the analysis and produced a report in relation to that analysis.
Mr Cook gave evidence about the process by which gunshot residue is discharged and the process by which analysis is conducted to identify the chemical components of gunshot residue. Mr Cook gave evidence that the majority of gunshot residue particles will be discharged through the muzzle of the barrel of the firearm but also can be discharged through ejection ports.
Mr Cook gave evidence that gunshot residue can be transferred from surface to surface. For example, gunshot residue can be transferred if a firearm is placed on a surface or if a person with gunshot residue on their hands touches another surface.
Mr Cook gave evidence that gunshot residue cannot be dated as gunshot residue particles can last for decades and not break down. He gave evidence that gunshot residue on a person’s hands can probably last for about 4-6 hours during normal everyday activities but will be removed if a person washes their hands.
Mr Cook said there are a number of available inferences when gunshot residue is found on a surface. It could be that the gunshot residue was deposited by discharge of a firearm within the vicinity of the surface or through contact of an object or hands with a second surface.
Mr Cook was unable to give definitive evidence about the distance within which a person in the vicinity of the discharge of a firearm would be contaminated with gunshot residue. He gave evidence that the conditions at the time, including wind and wet conditions, can impact the spread of gunshot residue on discharge. He gave evidence that someone handling a firearm that has been discharged will have gunshot residue contamination on their hands and the discharged firearm will itself be heavily contaminated with gunshot residue on the inside of the barrel and, depending on the type of firearm, may be contaminated on the outside as well.
Mr Cook explained the difference between a conclusion that a particle or particles are highly characteristic or indicative of gunshot residue. He explained that the primary compounds found in gunshot residue are lead, barium and antimony. The process of analysis of residue looks for the presence of those compounds. If two of the three key elements are found, the residue is considered indicative of gunshot residue. If three of the three key elements are found, the residue is considered highly characteristic of gunshot residue.
The summary of Mr Cook’s conclusions contained in his report concerning his gunshot residue analysis was tendered as exhibit P15. In relation to exhibit P15, as corrected during evidence, Mr Cook indicated there were three particles on the Golf vehicle’s steering wheel which were indictive of gunshot residue; on the gear‑lever were two particles highly characteristic of and three particles indictive of gunshot residue. The handbrake contained one particle highly characteristic, and three particles indictive, of gunshot residue. The turn indicator stalk contained four particles indictive of gunshot residue. There were no gunshot residue particles on the right glove, left glove or Mr Bessa Da Silva’s right and left hands, which were swabbed after his arrest.
Mr Cook gave evidence that as the steering wheel, gear-lever, handbrake and turn indicators are surfaces commonly handled by a driver, gunshot residue could be deposited on them through a transfer from the driver’s hands on to those surfaces.
During cross-examination, Mr Cook confirmed that a person does not need to have been the shooter of a firearm in order to be contaminated with gunshot residue. He confirmed that gunshot residue can be picked up through transfer or contact with a contaminated surface, such as shaking hands with the shooter of a firearm (within a certain timeframe). He confirmed that one could become contaminated with gunshot residue through picking up a discharged firearm or a discharged shell casing. He also confirmed that gunshot residue can remain present for an indefinite period of time on a static item.
Detective Brevet Sergeant Cambell Murdoch
Detective Brevet Sergeant Murdoch was the investigating officer for the offence.
Detective Brevet Sergeant Murdoch confirmed that neither Mr Kingston nor Mr Johnstone were prepared to cooperate with the investigation.
Detective Brevet Sergeant Murdoch gave evidence of the seizure of clothing (being a black t-shirt, dark blue jeans and red sneakers) of Mr Bessa Da Silva from his sister’s residence. He gave evidence of the arrest of Mr Bessa Da Silva and Mr Bessa Da Silva’s arrest photograph was tendered. Mr Johnstone’s photograph was tendered. Detective Brevet Sergeant Murdoch gave evidence that he had dealt with Mr Johnstone on approximately 12 occasions, totalling about three hours, including on occasions prior to the incident in question. He gave evidence that he could immediately recognise Mr Johnstone on sight.
Detective Brevet Sergeant Murdoch gave evidence of obtaining CCTV footage from various locations. Extracts of footage from CCTV taken on 22 and 23 April 2020 from a Caltex service station at Direk, a location on Midway Road, Elizabeth Park, a Caltex service station at Burton and a location in Hall Crescent, Burton were tendered together with extracts from CCTV obtained from the Property.
Detective Brevet Sergeant Murdoch gave evidence that the CCTV footage from the Property contained a number of gaps which could neither be recovered nor explained.
Extracts of the CCTV footage were played while Detective Brevet Sergeant Murdoch was in the witness box and he was asked to identify persons in the footage at various points.
I summarise below some of the extracts of the CCTV footage.
Caltex Direk
It is an agreed fact that CCTV footage at the Caltex service station, Direk, commencing at about 11.52am on 22 April 2020, was seized by police.
The CCTV footage from the Caltex service station depicted a car driving up to the service station, two men exiting the car, returning to the car and then leaving. Detective Brevet Sergeant Murdoch identified the man exiting the driver’s seat as Mr Johnstone. The prosecution contended the person in the passenger seat was Mr Bessa Da Silva.
Midway Road, Elizabeth Park
It is an agreed fact that the CCTV depicting events at Midway Road, Elizabeth Park, commenced at about 12.12pm on 22 April 2020, and it is an agreed fact that the CCTV was seized by police.
The CCTV footage at Midway Road depicts the same vehicle and the same two people (seen at the Caltex service station, Direk) arriving at this property, exiting the vehicle and subsequently (after over an hour) getting back into the vehicle and departing. It was agreed that the CCTV footage did not depict these people leaving the property in the intervening period. Detective Brevet Sergeant Murdoch again identified Mr Johnstone as the driver. The prosecution contended the passenger was Mr Bessa Da Silva.
Caltex Springbank
It is an agreed fact that CCTV footage depicting events at Springbank Caltex at 382/396 Waterloo Corner Road, Burton, commencing just after midnight on 23 April 2020, was seized by police.
This footage depicts a silver Golf arriving at the petrol station. It depicts two men exiting the vehicle. It depicts two men approaching the after-hours payment point and then returning to the vehicle and the vehicle departing. Detective Brevet Sergeant Murdoch identified the man exiting the passenger seat of the vehicle as Mr Johnstone. The prosecution contended the other man was Mr Bessa Da Silva.
Hall Crescent, Burton
It is an agreed fact that CCTV footage depicting events at Hall Crescent, Burton, commencing at about 3.06am on 23 April 2020, was seized by police. That footage depicts what appears to be a silver Golf pull up out the front of that property and remain there for a period of time before driving off.
CCTV footage from the Property
Detective Brevet Sergeant Murdoch gave evidence that CCTV footage from the Property contained various clips from three of four cameras located at the Property. Exhibit P3 contained an aerial photograph of the Property over which Detective Brevet Sergeant Murdoch marked the approximate location of the cameras to which the CCTV footage related and approximately the range of view of each such camera. There was no relevant footage from the third camera. Detective Brevet Sergeant Murdoch explained that the time stamps on the CCTV footage were 17 hours and 33 minutes behind the actual time. An appropriate time conversion had been performed in order to adjust the time stamps to accurate time stamps.
Detective Brevet Sergeant Murdoch identified one of the men in the CCTV footage from the Property as Mr Johnstone.
Detective Brevet Sergeant Murdoch gave evidence that he attended the Property in the early hours of 23 April 2020. At that time, Mr Johnstone was present as was his partner, Ms McInerney. At that time there were no other people present. Detective Brevet Sergeant Murdoch said the front gate of the Property had a large padlock on it.
Detective Brevet Sergeant Murdoch gave evidence that arrangements were made for DNA reference samples to be taken from Mr Kingston and Mr Bessa Da Silva.
Counsel for the prosecution provided to me a chronology of the CCTV footage which I received and marked for identification only as an aide memoire. I have reminded myself that the chronology is not evidence and the evidence is that which I viewed on the CCTV footage.
In addition to a USB containing the extracts of the CCTV footage, counsel for the prosecution tendered a series of 19 images comprising screenshots taken from the CCTV at the Property to highlight the time stamps of key events in the footage.
In cross-examination, Detective Brevet Sergeant Murdoch gave evidence that he had spoken to Mr Kingston. Mr Kingston’s antecedents and four sets of sentencing remarks were tendered.
Statement of Phillipa Hearnden
By consent, a statement of Phillipa Hearnden attaching a DNA report was tendered. The report related to the examination of a singlet, track pants and shirt of Mr Kingston. The stains tested positive for a presumptive test for blood. Tests of a left-hand glove contained a mixed DNA profile with the conclusion of 730 million in favour of Mr Bessa Da Silva being a contributor. Tape lifted from the inner surface of the right-hand glove produced a mixed DNA profile with three contributors with a result of greater than 100 billion in favour of Mr Bessa Da Silva being a contributor. Two shotgun cartridges being items 57 and 58 were swabbed but the sample contained very low amounts or no DNA and accordingly was not analysed.
Submissions
Prosecution’s submissions
The prosecution submitted the evidence revealed the following matters and the following inferences can be drawn by me.
Mr Kingston was shot in the face.
The shot found in Mr Kingston’s vehicle and removed from Mr Kingston was consistent with number 9 shot, 12-gauge calibre cartridge of shotgun.
The shot was taken at close range.
The majority of the injuries on Mr Kingston’s face demonstrate Mr Kingston was sitting facing mostly forward and slightly to the left. There were significant injuries to the left-hand side of Mr Kingston’s face, including an injury consistent with being hit in the face with the shotgun wad.
Mr Kingston was sitting in the driver’s seat when he was shot. The shot came through the front left passenger window. The front left passenger window was down at the time of the impact which can be deduced from blood spatter on the left external mirror.
Mr Kingston’s vehicle was found driven into a tree on the opposite side of the road from the Property.
Blood spatter on the ground outside the driver’s side door suggests that Mr Kingston had already been shot prior to exiting his vehicle. Consequently, the prosecution contend that an inference can be drawn that Mr Kingston was shot prior to colliding with the tree.
Blood spatter on the door seal enables an inference that the driver’s door must have been open or ajar at the time of the shooting. The blood spatter is consistent with that from a gunshot prior to the collision.

Mr Kingston was not armed. No weapons were found in Mr Kingston’s vehicle. The grass area of the Property and the verge were searched and no weapons were located.
The analysis performed by Officer Tobiasen, the ballistics expert, demonstrates the shot came from the left-hand side of Mr Kingston’s vehicle through the open passenger window. The shot must have been at relatively close range due to the absence of satellite markings on the external surface of Mr Kingston’s vehicle.
The ammunition was Winchester number 9, 12-gauge calibre ammunition.
Evidence of Dr Bautz and Officer Tobiasen enables an inference that the gun was a low powered shotgun consistent with a sawn-off shotgun. This inference is based on the injuries to Mr Kingston’s face and the damage to the headrest and the rear passenger window. If the shotgun had been a standard long barrel shotgun, it would have killed Mr Kingston and shattered the rear window.
The Prosecution submitted that I can find that the shot came from outside the car through the open left passenger window at close range.
CCTV footage from two Caltex service stations and a location on Midway Road shows Mr Bessa Da Silva in company with Mr Johnstone during the day and evening of 22 April 2020. The person who appears in that CCTV can be identified as Mr Bessa Da Silva based on the likeness between the person appearing in the video and Mr Bessa Da Silva’s arrest photograph (P16). The similarity between the clothing worn by the person in the CCTV footage and clothing seized from Mr Bessa Da Silva’s home (P12), including a distinctive black t-shirt with a Nike Air logo across the front, further assists in identifying Mr Bessa Da Silva.
CCTV footage from a Caltex service station in Springbank shortly after midnight shows a person in a silver Volkswagen with Mr Johnstone. The prosecution submitted that the man can be identified as Mr Bessa Da Silva by comparison with his arrest photograph and clothing located in a search of Mr Bessa Da Silva’s sister’s residence and located in the washing machine (still wet).
The prosecution submitted that the man who appears in CCTV footage from the Property from 1.45am on 23 April 2020 can be identified as Mr Bessa Da Silva by comparison with his arrest photo, the similarity of the build and appearance of Mr Bessa Da Silva and the similarity of the clothing and the car.
The prosecution submit that I can therefore find it was Mr Bessa Da Silva who was the second man at the Property.
Shotgun shells located at the Property on 30 June 2020 matched those used to shoot Mr Kingston at the Property.
Mr Johnstone threw items over the back fence which were shotgun shells which matched those found at the Property.
The area is very dark with only one street light to the west of the Property and surrounding market gardens.
The distance from the lawn area to the front gate is approximately 26 metres.
There were four CCTV cameras at the Property. Camera one was located on the front eastern side of the house pointing in a southerly direction towards Dunn Road and capturing the driveway and fence. Camera two was located on the back eastern side of the Property pointing in a northerly direction and capturing part of the end of the driveway/carport and adjacent porch area. There is no relevant footage from camera three. Camera four was located on the rear western side of the Property pointing in a northerly direction and captured part of the rear of the Property.
The prosecution submitted the following sequence of events is depicted in the CCTV footage from the Property and the following inferences can be drawn from that CCTV footage.
Mr Bessa Da Silva arrives at the front gate. Mr Johnstone opens the gate. Mr Bessa Da Silva drives to the rear carport in the Golf vehicle which is subsequently tested for gunshot residue. Mr Johnstone closes the gate and walks to the back of the Property. Mr Bessa Da Silva remains in the rear carport area from 1.47am until shortly before 2.03am.
Mr Bessa Da Silva paces back and forth in an agitated or anxious fashion and peers down the driveway. From this it can be inferred that Mr Bessa Da Silva was expecting someone to arrive and that he was anxious or agitated about that arrival as demonstrated by his body language and conduct shown in the CCTV footage.
Given Mr Kingston in fact arrived, the prosecution submits it can be reasonably inferred that the person Mr Bessa Da Silva was waiting for was in fact Mr Kingston.
Mr Johnstone does not appear agitated or worked up.
Mr Johnstone is not seen to pick up a weapon in any part of the CCTV footage.
Mr Bessa Da Silva is seen to be agitated, putting his hands up in a shooting motion, holding a knife and gesturing in a stabbing motion in an agitated fashion.
Mr Bessa Da Silva looks towards Port Wakefield Road, which is the only point of entry by road to Dunn Road.
Mr Bessa Da Silva is seen with a samurai sword in his hand.
The samurai sword is found in Mr Bessa Da Silva’s vehicle later that day during a search.
Mr Johnstone places an item in the Golf vehicle. Mr Bessa Da Silva retrieves an item from the Golf vehicle.
Mr Bessa Da Silva is seen holding a second long bladed samurai sword.
At the time Mr Kingston’s vehicle pulls up at the front of the Property, Mr Bessa Da Silva moves quickly to the garage. The prosecution contended that he picks up a sawn-off shotgun. Mr Johnstone moves to the front fence. He interacts with Mr Kingston. Mr Johnstone is facing the vehicle with his back to the CCTV camera. There is no urgency or agitation in Mr Johnstone’s behaviour.
At this point there is a one minute and two second black spot in the CCTV footage. Thereafter, Mr Johnstone returns to the carport, followed by Mr Bessa Da Silva. The prosecution case is the shooting occurred in that one minute and two seconds.
The CCTV footage then shows an arm reaching across and placing an item on the front passenger seat of the Golf vehicle. Mr Bessa Da Silva reverses the Golf vehicle out of the Property and drives off.
The prosecution submits that the events occurred in a very short timeframe. It was submitted that it is not reasonable to conclude that what happened was as a result of Mr Kingston being aggressive towards Mr Bessa Da Silva. Mr Kingston was not facing the direction of the shot and was still seated in his vehicle. The prosecution submits the footage demonstrates that Mr Bessa Da Silva was preparing to engage in combat and consequently a subsequent interaction with Mr Kingston could not be for a defensive purpose. The prosecution contends that Mr Bessa Da Silva arming himself and making his way to the front of the Property speaks against self-defence.
Counsel for the prosecution said that the time it would take to walk to the front of the Property, walk back to the Golf vehicle and get into the Golf vehicle would cut down the timeframe of the missing CCTV footage of one minute and two seconds substantially. Counsel submitted that although one does not know what happened in those approximately 40 seconds in which the prosecution submitted the events transpired: [35]
“common sense tells us that it is hard to imagine circumstances that exist where the man who has deliberately brought the gun down to that location … have occurred that cause him to shoot that man other than deliberately. He is waiting for his arrival. He is agitated. He is arming himself. He is upgrading those weapons. He heads down, gun in hand, agitated state and in a very short time frame the gun has been discharged into Mr Kingston’s face. Your Honour can find in all the circumstances that really the only reasonable inference is Mr Bessa Da Silva has walked down and deliberately shot Mr Kingston in the face almost immediately upon his arrival through that front passenger window… and then obviously left after that, taking the gun with him.”
[35] T213.21-38.
The prosecution submits that in the internal light of the Golf vehicle, Mr Bessa Da Silva reached over and put an item on the front passenger seat. The footage is conceded to not be clear, but the prosecution contends the size and shape of the object placed on the seat is consistent with a sawn-off shotgun. The prosecution also contends the object being placed on the seat, being the shotgun, was consistent with the scene being locked down by police quickly and the shotgun not being located in subsequent searches.
The prosecution submits that Mr Bessa Da Silva drove the Golf vehicle away from the Property and gunshot residue found on the steering wheel, indicator stalk and gear lever of the Golf vehicle are consistent with Mr Bessa Da Silva having handled a firearm which has been discharged, getting gunshot residue on his hands and then touching the various parts of the Golf vehicle one would ordinarily touch when driving.
The prosecution’s submission that I can find that Mr Bessa Da Silva was in fact the shooter is based on inferences from the CCTV footage of Mr Bessa Da Silva’s anticipation of Mr Kingston’s arrival, his apparent agitation and worked up behaviour, his “preparedness for battle”, the weapons, the violent gesturing, the fact he picked up a firearm at most a minute before the shooting, that he moves in the direction of Mr Kingston, and that in a very short period of time he has returned to the Golf vehicle still in possession of the firearm before leaving.
The prosecution submits that the only common sense inference is that Mr Bessa Da Silva is the man responsible for shooting Mr Kingston. The prosecution submits it defies common sense that the gun was taken from Mr Bessa Da Silva, that Mr Johnstone shot Mr Kingston, then returned the gun to Mr Bessa Da Silva and then Mr Bessa Da Silva fled with it.
The prosecution put to me that if it cannot be excluded as a reasonable possibility that Mr Johnstone was the shooter, the prosecution relied upon the principles of joint criminal enterprise and aid and abet. The prosecution contended that if Mr Bessa Da Silva was not the shooter, it followed that the shooter had to be Mr Johnstone, because there was no one else present and Mr Johnstone is the only other person in the CCTV footage in the proximity of Mr Kingston’s vehicle.
The prosecution’s submission is Mr Johnstone was unarmed and Mr Bessa Da Silva had possession of the firearm. Had it not been for Mr Bessa Da Silva at the least bringing over a firearm, then Mr Johnstone could not have shot Mr Kingston. Counsel submitted that if Mr Johnstone was the shooter then either Mr Bessa Da Silva handed the shotgun to Mr Johnstone pursuant to some plan or at the least he encouraged Mr Johnstone to engage in the act of shooting. He submitted there was nothing in the interaction between Mr Johnstone and Mr Bessa Da Silva in any of the CCTV footage to support an inference that Mr Johnstone may have taken the firearm from Mr Bessa Da Silva by force. He also submitted that if it was not Mr Bessa Da Silva who was going to discharge the firearm or if there was no joint enterprise or intention to aid and abet, then there would be no reason for Mr Bessa Da Silva to go there with the firearm in the first place. Counsel for the prosecution submitted that it defies logic and common sense that Mr Johnstone took hold of the firearm without Mr Bessa Da Silva’s consent or involvement.
Submissions for the defence
Counsel for the defence submitted that many of the prosecution’s submissions were based on the Crown’s perspective of the CCTV footage. He submitted that in some cases the CCTV footage was not clear enough to discern what was in fact happening. He gave, as one example, the footage showing an item being placed in the Golf vehicle before it is driven off. He contended the footage was not nearly clear enough to be able to tell what the item was.
Counsel for the defence reminded me that the starting point is Mr Bessa Da Silva’s presumption of innocence and whether or not the Crown can exclude as a reasonable possibility any hypothesis consistent with innocence.
In relation to the primary liability case, as I set out above, counsel for the defence submitted that this is not a ‘strand in a rope’ circumstantial evidence case, but rather a Shepherd case. Counsel for the defence submitted that if I am not satisfied beyond reasonable doubt that the object held by Mr Bessa Da Silva in the CCTV footage prior to the time of shooting is indeed a sawn-off shotgun, that is an indispensable link in the chain and, without clear proof beyond reasonable doubt, the prosecution case must fail.
Counsel for the defence also submitted there was a fundamental difficulty in the prosecution case, being a lack of any evidence of what a sawn-off shotgun looks like. Counsel submitted that I cannot take judicial notice of what a sawn-off shotgun looks like and in that respect relied on Holland v Jones.[36] In order to be capable of being received by way of judicial notice, counsel submitted an item must be a notorious item.
[36] (1917) 23 CLR 149 per Isaacs J at 153.
Defence counsel submitted that while the behaviour of Mr Johnstone might appear less agitated, a person who is cool and calm in the face of conflict may act the same way as someone who is agitated. He submitted the length of time Mr Johnstone was at the front fence of the Property was enough time for things to escalate quickly. Defence counsel said the CCTV footage was insufficient to make out what was happening at the front gate. He submitted it was pure speculation as to whether Mr Johnstone unlocked the padlock, whether he spoke to Mr Kingston, whether he had something in his hands, whether he picked something up from the front yard before attending the fence and so on.
Counsel for the defence reminded me there was a ten minute period before the first ambulance officer, Mr John, came on the scene after the shooting and the adjacent neighbouring properties were not searched. Consequently, defence counsel said it is not necessarily the case that the shotgun was put in the Golf vehicle and driven away by Mr Bessa Da Silva.
Counsel said there was no evidence Mr Bessa Da Silva knew who was coming, that is simply speculation.
Counsel said the prosecution’s submission about escalation in terms of Mr Bessa Da Silva grabbing different weapons is deprived of force in the absence of any information about who was coming, how many people might be arriving, why they were coming, what was going to happen and what might occur when they arrived. Defence counsel pointed out that there was no imminent need for a knife, samurai sword or firearm because no one was there. He submitted this was an example of the paucity of information upon which I was being asked to speculate and draw inferences when those inferences cannot be drawn.
Counsel for the defence submitted that an accident could not be excluded as a reasonable possibility.
Counsel for the defence suggested the gunshot residue evidence is of minimal weight given Mr Johnstone could have discharged the firearm and if Mr Bessa Da Silva was in the vicinity, he could have become contaminated. He also pointed to the concept of transfer which could occur via different means, including Mr Johnstone shooting Mr Kingston and then giving the firearm to Mr Bessa Da Silva.
Although counsel for the defence accepted the prosecution does not have to prove a motive, he submitted the absence of motive fundamentally undermined the inferences the prosecution asks me to draw.
Counsel for the defence pointed to a body of evidence that he submitted points away from Mr Bessa Da Silva being the shooter. The incident occurred at Mr Johnstone’s Property, shotgun shells were found inside Mr Johnstone’s bedroom cupboard and Mr Johnstone disposed of shells matching those inside his house. Counsel for the defence pointed to the evidence of Mr Johnstone’s behaviour with the first paramedic including declining to assist the paramedic and telling him not to go near Mr Kingston. He submitted this pointed in the direction of Mr Johnstone being the shooter, including him having the equipment, the interest in guns and getting rid of the shells and consequently it was not the case that it would defy common sense that Mr Bessa Da Silva was not the shooter.
Counsel for the defence submitted on the issue of primary liability that although Mr Kingston had been shot, it cannot be known for certain how that happened, and consequently Mr Bessa Da Silva must be acquitted.
In relation to the alternative accessorial liability, counsel for the defence submitted that joint criminal enterprise requires an agreement between those committing the crime. He submitted there was no evidence of any agreement. There was no evidence of a discussion about what might be taking place or what might have been going to take place. Counsel for the defence submitted that the evidence of interaction between Mr Bessa Da Silva and Mr Johnstone throughout the day and at the Property did not “magically transmogrify in some sort of joint criminal agreement, a joint criminal enterprise to kill someone”.[37] Counsel submitted there was no evidence at all from which one could infer the two individuals were working together.
[37] T 228.14-16.
In order to be found guilty pursuant to the doctrine of joint criminal enterprise, counsel for the defence submitted that the accused and another person must have formed an agreement to commit an offence. If the offence that is the object of the agreement is committed while that agreement remains on foot, all the parties to the agreement who have intentionally participated are equally guilty regardless of the part each plays.[38] To be found guilty pursuant to the doctrine of aid and abet, the accused must have taken some active steps by word or conduct with the intention of assisting or encouraging the principal offender to commit the offence. Mere presence and readiness may go to establish encouragement of the principal offender. However, it would be an exceptional case where mere presence and readiness with no more would be sufficient.[39]
[38] McAuliffe v The Queen (1995) 183 CLR 108 at 113-114.
[39] R v Golding and Edwards (2008) 100 SASR 216 at [37]-[42] per Gray J (Doyle CJ and David J agreeing).
Counsel for the defence submitted that there is no evidence of who discharged the firearm. There is no evidence of the events and interactions at the gate of the Property directly prior to, at the time of, or directly after, the firearm was discharged. The firearm was never located and never forensically examined. There is no evidence of motive.
Counsel for the defence submitted that the evidence does not permit a drawing of an inference that would allow me to make a finding that the CCTV footage at the Property depicts Mr Bessa Da Silva holding a firearm at any time.
Counsel for the defence submitted that the evidence is not capable of establishing either the primary or ancillary avenues to guilt because the prosecution case cannot exclude as competing hypotheses consistent with innocence another person discharging the firearm, the firearm discharging by accident, that there was no agreement between Mr Bessa Da Silva and another person to kill Mr Kingston or that Mr Bessa Da Silva did not introduce the firearm.
Counsel submitted that if an inference can be drawn that Mr Bessa Da Silva did introduce the firearm, the evidence cannot exclude the prospect that Mr Bessa Da Silva did not introduce it pursuant to an agreement to kill Mr Kingston and knowing that, if he introduced it, another person would use it to attempt to kill Mr Kingston. The evidence can also not exclude the prospect that the act of introducing the firearm was done without a coincident intention to assist or encourage another person to kill Mr Kingston knowing that other person would kill Mr Kingston.
Counsel for the defence submitted in relation to the charge of attempted murder that there is no evidence from which an inference can be drawn of an agreement between Mr Bessa Da Silva and another person to kill Mr Kingston in circumstances where nothing short of an agreement to kill will suffice.
Analysis and Findings

I take into account all of the evidence. I have considered all of the submissions of both the prosecution and defence. I assess whether the prosecution has established its case beyond reasonable doubt by considering the totality of the matters which have been proved rather than assessing piecemeal each individual circumstance.
I make the following findings.
At between 2.03am and 2.04am on 23 April 2020, Mr Kingston was shot while seated in his vehicle at the front of the Property. He was shot with one shot. He was seriously harmed.
I find that the direction and trajectory of the shot was as described by Brevet Sergeant Tobiasen. That is, it travelled from the left-hand side of Mr Kingston’s vehicle, through the open front left passenger window at an angle such that the shot passed closer to the front of the open window rather than the back of the open window. Blood spatter analysis and the analysis of the likely trajectory of the shot are consistent. They are also consistent with the injuries suffered by Mr Kingston. At the time of the shooting, Mr Kingston was facing ahead and slightly to the left and the source of the shot was located to the left of Mr Kingston.
Mr Kingston was shot with a number 9, 12-gauge Winchester shotgun cartridge. The spent shotgun wad located in the rear passenger footwell of Mr Kingston’s vehicle was a component of the ammunition used. The spent shotgun wad matched shotgun cartridges located in the shade cloth of the market gardens adjacent to the Property. The spent shotgun wad also matched shotgun cartridges located at the Property in bedroom number two in a search conducted on 30 June 2020.
The shotgun was discharged at a sufficiently close range such that the discharge did not produce satellite damage to the exterior of Mr Kingston’s vehicle and the shotgun wad hit Mr Kingston’s left cheek and left an imprint.
The firearm used for the shooting was never located. I cannot determine the make, model and type of shotgun on the evidence.
Mr Kingston was not armed.
I find that if the firearm had been a standard shotgun with a barrel of a standard length, Mr Kingston would likely have been killed and the rear passenger window shattered. It follows that it is likely the firearm used in the shooting had a reduced length barrel.
CCTV footage from the Property captured events occurring at the Property in the lead up to and after the shooting but not the shooting.
I find that one of the males in the CCTV footage from the Property is Mr Johnstone. Mr Bessa Da Silva is the other male depicted in that footage. I set out my reasoning for this conclusion below.
From about 1.45am until Mr Kingston’s arrival, the CCTV footage shows only Mr Johnstone, Mr Bessa Da Silva and Mr Johnstone’s partner (who is seen briefly in the CCTV footage) as physically present at the Property.
CCTV footage
I have viewed the CCTV footage repeatedly and with considerable care, including with a view to observing different areas of visible footage during each viewing. I make the following findings from my viewings of the footage. The time frames I have attributed to each event are based on the adjusted time stamps contained in the footage. I have not had regard to the chronology provided to me as an aide memoire. I have prepared the following summary from my own observations of the footage.
A vehicle pulls up at the gate of the Property at 1.45:23am. Shortly after, Mr Bessa Da Silva is visible standing outside the gate.[40] Mr Johnstone walks towards the front gate at 1.46:14am.[41] Mr Johnstone opens the gate and then at 1.47:04am closes the gate after the vehicle is driven in.
[40] Exhibit P18 (Camera one - 081253_ID69473). In referring to the video files for each camera in Exhibit P18 I have referred only to part of each video file name sufficient to identify each specific video file.
[41] Exhibit P18 (Camera one - 081433_ID69475).
The vehicle stops at the rear of the Property at 1.47:15am. Part of the vehicle is visible. The boot is not visible. At that time the footage is dark. An interior light turns on in the vehicle and some movement is visible. At 1.47:44am, Mr Bessa Da Silva appears at the base of the footage moving in the direction of the house.[42] Mr Bessa Da Silva can be seen walking around the rear porch area and moving his arms and his hands at times with vigorous movements and gestures. He periodically waves his arms, he lifts his arms above his head, he crosses his arms, he gestures with a closed fist while walking to and fro in the rear porch area. At 1.48:26am, Mr Bessa Da Silva is holding a knife in his left hand. At times Mr Bessa Da Silva moves to the rear porch area out of view of the camera.
[42] Exhibit P18 (Camera two - 082003_ID69630).
From 1.48:11am, Mr Johnstone is visible at the base of the footage near the house at times looking at his mobile phone screen. The two men are talking to each other.
At 1.50:30am, Mr Bessa Da Silva is holding a knife and at 1.50:31am he lifts the knife above his head and then moves the knife downwards. At 1.51:34am, a source of light at the rear of the house turns on and the vehicle is more visible. It is a four door silver vehicle.[43]
[43] Ibid.
There are periods of time during the CCTV footage where Mr Bessa Da Silva (and Mr Johnstone) disappear from view (for example, about a minute or more at around 1.51am).[44]
[44] Ibid.
At 1.54:53am, Mr Bessa Da Silva walks and looks in a direction down the driveway and towards the road. He remains looking in that direction until 1.55:10am.[45] He then continues walking to and fro on the back verandah area moving his arms. At 1.55:31am, both men are visible. Mr Johnstone is holding his phone and at 1.55:33am he walks towards the driveway. At 1.55:40am Mr Johnstone opens the passenger side front door and reaches into the front passenger seat, I cannot determine if an object is placed inside or removed. At 1.55:50am, Mr Bessa Da Silva appears at the lower right side of the footage from the driveway side of the house. At 1.55:57am he looks down the driveway. He is holding a knife. At 1.55:58am Mr Bessa Da Silva opens the passenger side front door while still looking down the driveway and at 1.56:10am reaches into the vehicle. I cannot determine whether an object is placed inside or removed.[46]
[45] Exhibit P18 (Camera two - 082621_ID69634).
[46] Ibid.
At 1.58:45am, a source of light at the rear of the house turns on. At 1.58:51am[47] and then from 1:59:44am[48] and at times between 2.01:13am and 2.02:16am,[49] Mr Bessa Da Silva is clearly visible holding long bladed weapons with the appearance of swords. At times (such as 2.01:20am – 2.01:32am) he stands in one location looking towards the driveway. At times (such as 1.59:58am) Mr Bessa Da Silva looks down the driveway and then disappears from view.
[47] Ibid.
[48] Exhibit P18 (Camera two - 082717_ID69636).
[49] Exhibit P18 (Camera two - 082902_ID69637 and 83258_ID69639).
At 2.02:29am, a vehicle pulls up next to the front fence. At the same time there is a flash of light in the footage from camera two at the rear of the house. It is dark. The vehicle at the front fence appears to have stopped at an angle to the fence (rather than completely parallel) as part of both front headlights are visible. The CCTV footage does not show the gate open.[50]
[50] Exhibit P18 (Camera one - 083014_ID69479).
At 2.02:33am, the light source at the rear of the house is off. At 2.02:36am Mr Johnstone walks quickly from the rear of the house in the direction of the driveway. He disappears from the view of camera two at 2.02:39am.[51]
[51] Exhibit P18 (Camera two - 083258_ID69639).
From 2.02:43am Mr Bessa Da Silva is visible at the rear of the Property on the left side of the footage of camera one. His arms are down. His fingers on his right hand are not visible but the back of his hand is visible. At 2.02:45am, Mr Bessa Da Silva is still standing at the rear of the house. There is a brief flash of light in the footage as he swings his right arm and a faint glimmer running vertically from his right hand towards the ground is just discernible.[52]
[52] Ibid.
At 2.02:45am, a light turns on in the vicinity of the front of the house.[53]
[53] Exhibit P18 (Camera one - 083014_ID69479).
At 2.02:52am the footage (very briefly) shows Mr Bessa Da Silva (still at the rear of the Property) swinging an object up against his right shoulder. The object is long, dark and possibly cylindrical in general shape. Mr Bessa Da Silva remains in view at the rear of the house until 2.02:53am.[54]
[54] Exhibit P18 (Camera two - 083258_ID69639).
At 2.02:53am, Mr Johnstone is walking down the driveway towards the gate. He is just visible at the corner of the footage of camera one. He is close to a small tree. The aerial photographs comprising P3 show the small tree as located in front of the house at the edge of the section of lawn adjacent to the driveway. At that time, at 2.02:53am, Mr Bessa Da Silva walks in the direction of the driveway from the rear of the Property and disappears from view. At 2.02:54am, Mr Johnstone is walking down the driveway and is just passing the small tree and moving towards the fence. At 2.02:56am – 2.02:58am, while walking down the driveway approaching the gate (and between the small tree and fence), Mr Johnstone swings his arms. The footage does not visibly show Mr Johnstone holding a large object in either hand. Mr Johnstone arrives at the gate at 2.03:05am. He stands at the fence with his back facing the camera until the footage finishes at 2.03:15am. Mr Bessa Da Silva is not visible in this footage by the time it finishes at 2.03:15am.[55]
[55] Exhibit P18 (Camera one - 083014_ID69479).
No movement is visible on the footage of camera two at the rear of the Property between 2.02:54am and 2.04:17am (during which time the shooting occurred).[56]
[56] Exhibit P18 (Camera two - 083258_ID69639).
At 2.04:17am, the interior light in the vehicle at the rear of the Property turns on. No one is visible next to the passenger side door. At 2.04:18am, Mr Johnstone can be seen briefly in the lower left corner of the footage moving quickly towards the house. Mr Johnstone is not in full view of the camera. His right sleeve is visible and (as I discuss below) he can be identified by the white stripes on his jacket. At 2.04:23am, Mr Johnstone walks rapidly from the house in the direction of the driveway. He looks towards the vehicle parked in the driveway and raises his left arm towards the vehicle. He changes his path and moves down the driveway in the direction of the front of the Property. He is identifiable by the white stripes on his jacket. He disappears from view at 2.04:25am.[57] The vehicle interior light remains on. At 2.04:39am, an object can be seen through the front passenger window. That object is placed on the front passenger seat from the driver’s side of the vehicle. The footage does not show the person placing the object onto the seat. The object is not clearly visible. It is consistent with a long and cylindrical shape and may be metallic as it reflects light. At 2.04:43am, there is a brief flash of light from the rear area of the vehicle. At 2.04:45am, the vehicle is turned around and moves down the driveway.
[57] Exhibit P18 (Camera two - 083258_ID69639).
At 2.05:12am, the footage from camera one shows the vehicle (driven from the rear of the Property) leave the Property. Mr Johnstone is standing by the gate. At 2.05:21-31am, Mr Johnstone remains in the vicinity of the front gate.[58] By 2.05:58am, Mr Johnstone has not been seen again on the footage from camera two at the rear of the house.
[58] Exhibit P18 (Camera one - 083241_ID69481).
From 2.08:54am until 2.09:24am there is no visible movement at the front of the Property.[59] From 2.09:50am to 2.10:19am there is no visible movement at the front of the Property.[60] From 2.14:56am to 2.15:26am there is no visible movement at the front of the Property.[61]
[59] Exhibit P18 (Camera one - 083623_ID69483).
[60] Exhibit P18 (Camera one - 083718_ID69485).
[61] Exhibit P18 (Camera one - 084225_ID69487).
The video footage is not complete in its time coverage.
At 2.14:54am, Mr Johnstone throws objects over the back fence.
At 2.26:06am, an ambulance drives down the road in front of the Property. At the time, Mr Johnstone is standing at the gate which is closed. At 2.26:45am, a light being held by someone walking towards the house is visible.[62]
[62] Exhibit P18 (Camera one - 085349_ID69489).
At 2.55am, Mr Johnstone is using his mobile phone at the rear of the house.
I observe that there are times when a light source in the vicinity of each of camera one and camera two turns on. When the light is on, the clarity of the footage is much clearer and metallic objects (such as the blade of the knife and sword) are more visible by reason of the reflection of light from a metallic surface. When those light sources are off, the clarity of the footage is poor.
I make the following additional observations. The boot of the vehicle is not visible in the CCTV footage. The CCTV footage does not show clearly any object being removed from the vehicle. The four cameras which are the source of the CCTV footage do not cover the entirety of the Property. There are periods of time during the footage where either Mr Bessa Da Silva or Mr Johnstone or both are not visible and their location and activities are unknown. At brief times a woman is visible in the footage.
Does the footage show Mr Bessa Da Silva holding a shotgun?
At the time Mr Bessa Da Silva picks up the object which the prosecution contends is a shotgun, the source of light at the rear of the Property had turned off. I have reviewed the CCTV footage and the photograph of the screenshot closely. Despite repeated viewings, I cannot determine whether the object Mr Bessa Da Silva was holding was a shotgun. I can conclude Mr Bessa Da Silva was holding an object. I can observe the faint glimmer of light I have referred to above. I can observe that the object when placed against Mr Bessa Da Silva’s shoulder appears dark and long. However, I cannot conclude the object is a shotgun from viewing the CCTV footage or studying the screenshots from the footage. The appearance of the object in the footage could be consistent with other objects. Any conclusion about the nature of the object would be speculation. The CCTV footage is simply not clear enough. Accordingly, I do not consider it necessary to resolve the question whether or not I can take judicial notice of the appearance of a shotgun.
Identification of Mr Johnstone and Mr Bessa Da Silva
I accept the evidence of Detective Brevet Sergeant Murdoch that the tall, younger man seen in the various CCTV footage is Mr Johnstone.
Defence counsel did not concede that the second man in the various CCTV footage was Mr Bessa da Silva. However, while making no concessions, defence counsel did not press me to conclude it was not Mr Bessa Da Silva.
I have considered carefully the prosecution evidence in relation to the identification of Mr Bessa Da Silva as the second man in the CCTV footage. I have considered the principles in Domican v The Queen.[63] Based on the following matters, I find that the second man seen in the various CCTV footage was Mr Bessa Da Silva. The CCTV footage from the Caltex service station, Direk and Midway Road, Elizabeth Park taken during the day is clear. The clothing worn by the second male matches the clothing seized from Mr Bessa Da Silva, including the t-shirt with the distinctive Nike logo which is clearly visible. Mr Bessa Da Silva’s arrest photo, the photograph on his driver’s licence and his general build and appearance is consistent with Mr Bessa Da Silva being the second male in the CCTV footage from the Caltex service station, Direk and Midway Road.
[63] (1992) 173 CLR 555.
The quality of the CCTV footage at the Caltex service station at Waterloo Corner is not as clear given it was dark. The footage is nonetheless clear enough to enable me to recognise Mr Bessa Da Silva from his arrest photograph, driver’s licence photograph and general build and appearance. The clothing worn by the second male also matches clothing seized from Mr Bessa Da Silva. I acknowledge that the clothing worn in the CCTV footage taken at night is not the same as that worn during the day and is not distinctive, however, that is not sufficient to give rise to doubt that the second male is not Mr Bessa Da Silva. The footage is clear enough to enable me to recognise Mr Bessa Da Silva from his arrest photograph, driver’s licence photograph and general build and appearance.
Mr Johnstone was identified and is also recognisable from his photograph and by the clothing he was wearing earlier in the day. Mr Johnstone is wearing a distinctive jacket with white markings running down the sleeves and in a V shape on the front and back of the jacket, and pants with white stripes down the sides of the legs.
The CCTV footage from the Property, although taken at night, at times is relatively clear. A light source from somewhere in the vicinity of the camera covering the rear carport area and in the vicinity of the camera pointing to the fence turned on and off during the CCTV footage. When the light source was on, the CCTV footage can be seen relatively well. The second man depicted in the CCTV footage at the Property is of an appearance consistent with Mr Bessa Da Silva’s arrest photograph, driver’s licence photograph and general build and appearance. The other man is of an appearance consistent with Mr Johnstone. The distinctive clothing worn by Mr Johnstone enables me to distinguish between the two men during the various sections of CCTV footage taken at the Property.
Is this a Shepherd case?
I now return to the question whether this is a Shepherd case as my conclusion on that issue will impact on how I consider the evidence.
I have considered carefully the submissions of counsel for the defence. I understand the submission to be that if I am not satisfied beyond reasonable doubt that the object being held by Mr Bessa Da Silva in the CCTV footage immediately prior to the time of the shooting is indeed a sawn-off shotgun, then that is the end of the prosecution case as, given the way the prosecution ran its case, observing the shotgun in his hand is a critical intermediate fact.
The relevant test for determining whether this is a Shepherd case is as set out above by Doyle J in Singh.
The actus reus component of the legal elements of the offence of attempted murder is that the accused performed an act or series of acts immediately directed to fulfilling the relevant intention (to kill). In the circumstances of this case, that component is constituted by Mr Bessa Da Silva holding a shotgun and deliberately firing that shotgun at Mr Kingston (with the relevant intention). A conclusion that Mr Bessa Da Silva is guilty of the offence (on the primary liability case) necessarily requires a finding of fact beyond reasonable doubt that Mr Bessa Da Silva was holding the shotgun at the time of its discharge into Mr Kingston.
The assertion that Mr Bessa Da Silva was holding the shotgun immediately prior to the shooting (from which it can be inferred he was holding the shotgun at the time of discharge) is a crucial step in the prosecution case and that is the manner in which the case was conducted. However, the prosecution case was not based in isolation on the CCTV footage showing Mr Bessa Da Silva picking up an object (said to be the shotgun) at 2.02:52am. That was part (albeit a significant part) of the prosecution case as to the identity of the shooter when put in combination with all of the circumstantial evidence relevant to that issue. I therefore do not consider that a Shepherd direction is required.
However, if I am wrong in that conclusion, it does not impact on my ultimate conclusion for the reasons I set out below.
I now proceed to consider the inferences I can draw from all of the evidence.
Inferences

I must consider whether I am able to find that Mr Bessa Da Silva was the shooter by inference from the totality of the evidence which I have accepted.
Prosecution – contended inferences
The prosecution pressed upon me a number of inferences it was said I could draw from the combined evidence including that of Doctor Bautz, Brevet Sergeant Douglas, Brevet Sergeant Tobiasen, Mr Cook and the CCTV footage.
The prosecution contended that I could infer the requisite intention for the purposes of the offence from the fact the shotgun was discharged at close range such as is evidenced by the injury to Mr Kingston. Counsel for the prosecution said shooting someone in the face at close range “speaks eloquently of an intention to kill”.[64]
[64] T7.3.
In relation to the act of shooting, counsel for the prosecution contended that I could infer from the CCTV footage that the shooter was Mr Bessa Da Silva. I will not repeat all of the prosecution’s submissions to which I have referred above. In summary, they included Mr Bessa Da Silva’s agitation, looking towards the road and weaponising himself, in contrast with Mr Johnstone’s demeanour. Prosecution relied on the shortness of the time, submitting that the shooting of Mr Kingston occurred in less than one minute and two seconds between Mr Bessa Da Silva picking up the shotgun, walking towards the front of the Property and then returning to the back of the Property, and hence the only rational logical explanation is that Mr Bessa Da Silva was the shooter.
Counsel for the defence rejected the drawing of those inferences and, as I have set out above, pointed to reasons why the prosecution had failed to establish Mr Bessa Da Silva’s guilt beyond reasonable doubt. I will return below to consider the submissions of counsel for the defence.
Analysis
I am able to reach the following intermediate conclusions and draw the following inferences from the circumstantial evidence in its totality.
Mr Bessa Da Silva was the driver of the Golf vehicle that arrived at Mr Johnstone’s property at 1.45am and parked at the rear of the Property.
I can reasonably infer from the instances of Mr Bessa Da Silva looking down the driveway that he was expecting someone (whether one or more people) to arrive at the Property.
By a combination of the handling of the weapons, his looking down the driveway and his observable demeanour, which was not calm, I can reasonably infer that Mr Bessa Da Silva was anticipating some form of conflict.
The vehicle that arrived at the front gate of the Property at 2.02am was Mr Kingston’s vehicle.
Given the footage showing Mr Johnstone swinging his arms while walking to the front fence (after Mr Kingston’s arrival), I can reasonably infer that Mr Johnstone was not holding a shotgun in either of his hands when he walked towards the front fence.
By a combination of the footage of Mr Bessa Da Silva at the rear of the house (showing Mr Bessa Da Silva holding an object which he placed against his shoulder before moving in the direction of the front of the Property) and the short time frame of the subsequent events, I can reasonably infer that Mr Bessa Da Silva carried with him the object he swung up against his shoulder as he moved away from the back of the house.
Given the absence of any re-appearance of Mr Bessa Da Silva or Mr Johnstone on the footage from the rear of the house during the time in which the shooting must have occurred, I can reasonably infer both men were somewhere towards the front of the Property during the shooting.
Of itself, the gunshot residue does not allow me to conclude that Mr Bessa Da Silva was the shooter. However, from the gunshot residue I can reasonably infer that Mr Bessa Da Silva was in the vicinity of a shotgun when it discharged and/or he handled a shotgun after its discharge.
By a combination of the proximity of time between the interior light of the vehicle turning on and Mr Johnstone being visible walking to the back of the house and then back towards the front fence, I can reasonably infer that after the shooting, a door of the Golf vehicle was opened by Mr Bessa Da Silva resulting in the light turning on. By a combination of the timing of the movement of Mr Johnstone relative to the interior light turning on and then an object being placed on the front passenger seat, I can reasonably infer that Mr Bessa Da Silva placed an object on the front passenger seat of the vehicle prior to driving away.
By a combination of the relative timing of Mr Johnstone walking towards the front fence, the vehicle moving down the driveway and Mr Johnstone remaining at the front gate and Property, I can reasonably infer Mr Bessa Da Silva drove the Golf vehicle away from the Property.
The ultimate question remains whether the prosecution has proved beyond reasonable doubt that Mr Bessa Da Silva was the shooter, in particular, whether the totality of the evidence excludes any reasonable hypothesis consistent with Mr Bessa Da Silva’s innocence.
I will not fully repeat defence counsel’s submissions, which are set out above. In essence, he submitted that there was insufficient evidence to prove the prosecution case; that various of the inferences I was asked to draw could not be drawn given the absence of evidence of various matters (such as evidence that Mr Bessa Da Silva knew who was coming to the Property). He submitted that inferences I was asked to draw amounted to speculation; that some matters were more consistent with Mr Johnstone being the shooter and the absence of motive undermines the inferences that can be drawn. He submitted, among other things, that I cannot exclude the possibility of the shotgun discharging by accident or Mr Johnstone having picked up a shotgun in the front yard.
I have carefully reviewed the totality of the evidence to consider whether I am able to exclude all reasonable hypotheses consistent with innocence and whether the matters pressed upon me by counsel for the defence rest upon any more than mere conjecture.[65]
[65] R v Baden-Clay (2016) 258 CLR 308 at [47].
While I am able to make some findings and draw the inferences I have drawn from the CCTV footage, much remains unclear and I find myself in doubt. A gap remains in the evidence and the inferences available from it are not sufficient to discharge the prosecution’s burden of proof.
The CCTV footage largely exists in a vacuum with the prosecution unable to put it into any context given the lack of cooperation of Mr Kingston and Mr Johnstone. I accept the prosecution does not have to prove a motive. However, had there been some evidence about the nature of any pre-existing relationship or prior conflict between any or all of Mr Bessa Da Silva, Mr Johnstone and Mr Kingston, it may have assisted me in excluding the possibility that Mr Johnstone discharged the shotgun and that, in doing so, he acted on a frolic of his own.
The absence of any context renders the missing minute of footage more significant. The totality of the evidence does not exclude the fact that anything could have occurred in the vicinity of the fence during the critical minute. I cannot exclude the possibility that Mr Johnstone was the shooter and that he was acting alone. The events which did occur could have been in consequence of a prior agreement between Mr Bessa Da Silva and Mr Johnstone, or could have occurred without any agreement between them, or could have occurred in a brief period of active disagreement between them.
Although it is not necessarily the case that the person who disposed of the shotgun was the shooter, the totality of the evidence, including the lapse of time between the shooting and the police cordon and the lack of search of adjacent properties, does not exclude the possibility that Mr Johnstone disposed of the shotgun.
Although neither counsel contended that the third person (a female) present at the Property was involved, nevertheless there was another person at the Property and there was no evidence in relation to her movements.
The evidence, including that of Mr Bessa Da Silva arming himself with weapons, is not consistent only with the intention to kill Mr Kingston. It cannot exclude the possibility of an intention, for example, to intimidate Mr Kingston.
I cannot reach the requisite level of satisfaction beyond reasonable doubt on all of the evidence before me including that I cannot be sure that the CCTV footage depicts Mr Bessa Da Silva in possession of a shotgun, the CCTV footage covers only part of the Property and the CCTV footage is incomplete. I cannot exclude the possibility that Mr Johnstone was the shooter and that Mr Johnstone acted alone.
As the prosecution has not proved beyond reasonable doubt that Mr Bessa Da Silva discharged the shotgun, I find him not guilty on the primary liability case.
Accessorial liability
I am not able to exclude the possibility that Mr Johnstone discharged the weapon and, in doing so, acted alone. There is insufficient evidence for me to be able to infer an agreement between Mr Bessa Da Silva and Mr Johnstone to kill Mr Kingston. There is no evidence about the content of the discussions between Mr Bessa Da Silva and Mr Johnstone at the rear of the Property in the early hours of 23 April 2020 or in the days leading up to the shooting. Spending time together and being in each other’s presence, even while Mr Bessa Da Silva handled the knife and swords, is not of itself sufficient to enable me to infer an agreement between Mr Johnstone and Mr Bessa Da Silva nor to infer an agreement between Mr Johnstone and Mr Bessa Da Silva to kill Mr Kingston.
For the same reasons, the evidence is not sufficient to enable me to conclude beyond reasonable doubt that Mr Bessa Da Silva took active steps by words or conduct with the intention of assisting or encouraging Mr Johnstone to kill Mr Kingston.
It follows that I find Mr Bessa Da Silva not guilty on the accessorial liability case.
Although I have addressed the issues above in the context of the first charge, the same issues arise in relation to the second charge. Accordingly, I find Mr Bessa Da Silva not guilty on the second charge, either on the basis of the primary liability case or the accessorial liability case.
Mr Bessa Da Silva must be acquitted in respect of both charges.