R v Douglass (No 1)

[2022] NSWSC 1287

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Douglass (No 1) [2022] NSWSC 1287

Hearing dates:

22 August – 9 September 2022

Decision date:

26 September 2022

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

The accused is found guilty of murder.

Catchwords:

CRIMINAL LAW – trial by judge alone – single count of murder – where Crown case was that the accused entered the deceased’s house with a co-accused to steal money and the deceased was stabbed in the course of that enterprise – where accused made multiple admissions to participation in the killing – where co-accused was a witness for the prosecution – whether elements of murder established on basis that accused stabbed the deceased – whether elements of murder established on basis of extended joint criminal enterprise – whether accused acted in defence of another – reasons for verdict

Legislation Cited:

Crimes Act 1900 (NSW), s 18

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

Evidence Act 1995 (NSW), ss 32, 108C

Cases Cited:

Douglass v R [2020] NSWCCA 284

McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37

Category:

Principal judgment

Parties:

Rex
Ammie Douglass (Accused)

Representation:

Counsel:
Mr M Pincott (Crown)
Mr T Jones (Accused)

Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Bannisters Lawyers (Accused)

File Number(s):

2016/197051

Publication restriction:

Pseudonyms used to reflect non-publication orders made on 27 November 2018; 3 August 2022; and 26 September 2022

Judgment

1. HIS HONOUR: The accused, Ammie Douglass, is charged that between 6 August 2016 and 12 August 2016, at Lithgow, she murdered Christopher Whiteley (“the deceased”). The trial commenced on 22 August 2022 as a trial by judge alone, pursuant to s 132(2) of the Criminal Procedure Act 1986 (NSW). Upon arraignment, the accused entered a plea of not guilty. The Crown case was closed on 7 September 2022. A case for the defence was presented the same day. The parties made their closing addresses on 9 September 2022, assisted by written submissions. I reserved my verdict judgment until 26 September 2022.

An overview of the Crown case

2. The Crown case, briefly stated, is that on the evening of 7 August 2016, the accused and her then partner, who I will refer to as AS, [1] entered the deceased’s semi-detached house on Main Street, Lithgow (“the Main Street house”) with the intention of stealing money that they believed to be there. The deceased was 69 years old, the accused was aged 26 and AS was aged 21. The accused and AS were each armed with a knife and the accused wore a balaclava and gloves. They entered the rear yard of the property via a laneway (“the laneway”) and gained access to the house through the back doorway, which did not have a door affixed to it. The deceased was watching television in the lounge room. He heard AS approaching him inside the house and confronted him. During the struggle, AS and the accused stabbed the deceased, who collapsed to the ground. AS removed a sum of money from the deceased’s clothing, and the accused took a bag with some thousands of dollars that she found under a mattress, either that night or on a subsequent date when she returned to the house.

   1. These are not the initials of that person. Witnesses are referred to throughout the judgment by pseudonyms using initials that are not those of the particular witness.

3. The deceased’s body was not discovered by the authorities until 7 September 2016. A post mortem established that the likely cause of death was blood loss from multiple stab wounds and incised wounds.

4. In the month between the killing and the discovery of the deceased’s body, AS and the accused, either individually or together, and possibly sometimes in the company of others, returned to the residence on multiple occasions in order to search for more money, sometimes successfully. In that same period, AS and the accused admitted to having stabbed the deceased to friends, who did not believe them. Following the discovery of the deceased’s body and the ensuing media publicity of the murder, some of those friends approached police with their accounts of the admissions. Police obtained warrants for listening devices (“LDs”) and telephone intercepts (“TIs”) which captured admissions by AS and the accused.

5. The accused and AS were arrested on 5 October 2016. AS ultimately pleaded guilty to murder on the basis that he and the accused entered the deceased’s house with the intention of stealing from him and that during the course of a struggle, he and the accused stabbed the deceased, thereby intentionally causing his death.

6. The Crown puts its case against the accused on the charge of murder on two alternative bases. The accused deliberately and unlawfully stabbed the deceased, with the intention of causing him really serious bodily harm or his death, thereby substantially contributing to his death. Alternatively, the accused is guilty of the offence of murder by virtue of the doctrine of extended joint criminal enterprise: McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37 at 117-118. On this basis, the Crown contends that prior to entering the deceased’s house, the accused and AS agreed to steal from or rob the deceased and the accused knew that AS would be armed with a knife. She foresaw as a possibility that AS would stab the deceased with the intention of at least causing him really serious harm, but nevertheless determined to continue with their joint criminal enterprise to steal from or rob the deceased.

7. The Crown further submits that if the Court is not satisfied that the accused foresaw the possibility that AS might use the knife to inflict really serious bodily harm upon the deceased, but is satisfied that the accused would have realised that AS’s act exposed the deceased to an appreciable risk of serious injury, the court may return an alternative verdict of manslaughter.

8. Section 18(1)(a) of the Crimes Act 1900 (NSW) provides as follows:

“18   Murder and manslaughter defined

(1)

(a)   Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years.

…”

9. The elements of murder to be established by the Crown, relevantly stated, are that the accused voluntarily did an act or acts that caused the death of the deceased with the intention of causing the deceased’s death or alternatively with the intention of causing him really serious bodily harm. In certain circumstances it is appropriate for a court to have available to it an alternative possible verdict to murder of manslaughter. I will return to the elements of murder and whether an alternative basis of manslaughter is available in the evidentiary context later in this judgment.

10. The defence did not make an opening address. Essentially, the defence case is that the accused was not present when AS went to the deceased’s house and killed him. The first she knew of the incident was when, six days later, AS informed her that he had killed someone. She determined to assist AS in avoiding arrest. She was aware that rumours circulated that AS had killed a man. At the behest of AS, she deliberately claimed to friends and family that she accompanied AS at the time and also stabbed the deceased, because she believed that doing so would “take the heat” off AS and discourage the people she spoke to from reporting AS to police. Accordingly, the defence does not dispute that admissions were made by the accused that were captured electronically but rather, contends that they were falsely made by her, for a combination of reasons. Similarly, evidence of some admissions by her that were not electronically captured are not challenged, although some of those are challenged. To the extent that the accused’s explanation appears illogical, the defence relies on expert evidence of a psychologist as to certain characteristics of domestic violence that would assist the Court in its assessment of the accused’s credibility.

11. A central plank of the defence case was evidence of admissions made by AS prior to his arrest in which he repeatedly referred to himself in the singular as having perpetrated the murder. There is evidence that on at least one occasion prior to his arrest he expressly said he was the sole perpetrator, and that the accused was not with him.

Relevant legal principles and directions

12. As this is a trial by judge alone, I note s 133 of the Criminal Procedure Act 1986 (NSW), which is as follows:

“133   Verdict of single Judge

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

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

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

13. The Crown bears the onus of proving the charge of murder and of doing so beyond reasonable doubt. The accused is presumed to be innocent and has no obligation to prove anything.

14. I must consider the evidence impartially and dispassionately, without prejudice or sympathy to either the accused or the deceased, or to any other person.

15. Not all inconsistencies in the evidence need be resolved. Rather, I am to determine the issues of fact that are relevant to the elements of the charge. In doing so, I bring to bear my common sense and life experience. I must not engage in speculation as to what occurred, but rather, my verdict must be based on the evidence.

16. I must be conscious of the difference between evidence which I regard as reliable, and evidence of a witness which I accept is honestly given, but which may nevertheless be unreliable.

17. I am not obliged to accept the whole of the evidence of any one witness; I may accept some parts as reliable and reject another part or parts which I am not satisfied is reliable.

18. In drawing inferences, I must be satisfied that they are justifiable and drawn from the facts that I find established by the evidence. I must consider the possibility that other inferences might also be reasonable.

19. There is evidence of three forensic experts, being a pathologist, a biologist and a psychologist. I direct myself that the weight to be attributed to the opinion evidence of the experts is dependent upon the reliability and accuracy of the material which the expert used to reach his or her opinion. It is also dependent upon the degree to which the expert analysed the material upon which the opinion was based, and the skill and experience brought to bear in formulating the opinion given. Experts can differ in the level and degree of their experience, training and study, yet each can still be an expert qualified to give an opinion where that opinion is based on that witness’ specialised knowledge.

20. I bear in mind that if, having given the matter careful consideration, I do not accept the evidence of an expert witness, I do not have to act upon it. This is particularly so where the facts upon which the opinion is based do not accord with the facts as I find them to be. I am also, to a degree, entitled to take into account my common sense and my own experiences if they are relevant to the issue to which the expert evidence relates.

21. The evidence in the trial included audio recordings of LDs and TIs. These, and transcripts of them, are exhibits. The audio recordings are the primary evidence. In the event that I determine that a part of the relevant transcript does not faithfully transcribe what I hear, or has words or describes sounds that I do not hear clearly or at all, I must have regard only to the audio recording.

22. The evidence also includes audio recordings of the evidence of witnesses, the hearing of which was aided by transcripts that were created at the time by the Court Reporting Service and which were marked for identification. The same direction applies to those recordings and transcripts.

23. I assess this evidence in the same way as other evidence. I do not give it any greater or lesser significance by reason only of the fact that it was given by way of the replay of a recording. It does not reflect adversely upon either party.

24. If I consider myself disadvantaged by that process in making an assessment of whether I can accept what a witness said, I remind myself that the Crown bears the onus of proof in deciding whether the Crown has proved the guilt of the accused beyond reasonable doubt.

25. I will give myself further directions at the conclusion of my summary of the evidence.

The procedural history of the matter

26. This is the third time that the accused has been tried on this charge. The first time was a trial by jury before Schmidt J, sitting in Bathurst, in 2018. The accused was convicted of murder. On 2 November 2020, the conviction was quashed by the Court of Criminal Appeal: Douglass v R [2020] NSWCCA 284. The second trial, which was also by a jury, occurred in January 2022 before R A Hulme J, sitting in Sydney. The jury were unable to agree upon a verdict.

27. The evidence in this trial was primarily presented by way of the playing of audio recordings of evidence given in the first trial by the witnesses, including the accused. The audio recordings were edited by the parties and tendered in the form of DVD or CD recordings, as exhibits. I am assisted by transcripts of that evidence, which have been marked for identification. I am satisfied that the passages of evidence or the content of the LDs or TIs that I have transcribed in this judgment are accurate. In addition, the evidence of some witnesses in the second trial, as well as additional evidence of some of the witnesses in the first trial, was tendered into evidence by the reading of the edited transcript of their evidence. Finally, the evidence of the current officer in charge of the investigation, Detective Senior Constable Andrew Cole, was given in person.

28. All of the evidence in the trial was tendered without objection. There was no evidence tendered that was rejected.

29. I was informed that the defence served a tendency notice upon the Crown prior to the first trial in respect of the evidence of AS, alleging that he had a tendency to blame other people for crimes that he committed himself knowing that the person is not responsible, nominating another person as having been involved in a crime to deflect attention from himself, fabricating accounts to implicate others as having been involved in the crime and having a particular state of mind, namely, to conceal his own guilt or conduct even if it required the inculpation of innocent people.

30. The Crown did not respond to the notice and, in this trial at least, does not oppose the defence relying upon evidence to demonstrate such a tendency by AS and inviting tendency reasoning in respect of such evidence.

31. I will not refer to all of the evidence in the trial in my judgment, although in considering my verdict, I have reminded myself of all of the evidence.

32. In relevantly summarising the Crown case, I will refer firstly to the evidence of the pathologist and then to evidence of the discovery of certain items near the laneway on 9 August 2016 and then expert evidence as to DNA found on tape lifts from those items and the deceased’s clothing. I will then refer to incidents involving police and the accused on 13 and 15 August 2016, and then to evidence of admissions made by AS and the accused prior to their arrests, and the accounts they provided to police following their arrests. AS twice partook in a recorded interview by detectives who were investigating the killing. Such an interview is known as an Electronic Record of Interview with Suspected Person (“ERISP”). In addition, while on remand, AS made admissions during a conversation with a Corrective Services officer (Mr Plunkett) which, unbeknown to him at the time, was audio recorded. The accused made an ERISP some months after her arrest. I will refer to these four accounts in their chronological order.

Relevant background

33. The accused moved to Lithgow from Sydney with her two children, who were aged 8 and 4 in August 2016. She resided at Hayley Street, Lithgow (“Hayley Street”) from February 2016, which was arranged through Community Housing NSW. She met AS in Lithgow mid-2016 and commenced an intimate relationship with him in about July or early August 2016. By 7 August 2016, the accused and AS were cohabiting in Hayley Street. At that time, the accused and AS regularly used prohibited drugs, including methylamphetamine (“ice”).

34. The deceased’s family told police that the last contact they had with him was in a phone call on 7 August 2016, at around 10:25am.

The post mortem: evidence of the pathologist

35. Dr Jane Vuletic performed an autopsy on the deceased’s body on 12 and 13 September 2016. She described the condition of the body as being “severely decomposed”, as a result of which she was unable to give an accurate estimate of the date of death.

36. Dr Vuletic concluded that the cause of death was blood loss from the combined effect of “multiple stab and incised wounds”. Dr Vuletic explained what she meant by those terms:

“They are both caused by something sharp. An incised wound is … a cut on the surface where the wound is shallow as opposed to a stab wound where the wound is deep and by definition it is deeper than the length of the wound on the skin’s surface.”

37. Dr Vuletic located two incised wounds. One was 5cm long on the left side of the neck below the left ear, which was no more than 5cm deep. The other, which was 4cm long, was on the right hand between the thumb and index finger. It may have been a defence injury, that is, incurred by the deceased while attempting to defend himself.

38. She located six stab wounds. Two wounds had entered the chest cavity, meaning the space between the chest wall and the ribs. One of those wounds entered the body through the left shoulder area from the deceased’s back and terminated in the left lung, and the other entered the abdominal cavity.

39. Other wounds were on the upper part of the left arm, the front of the chest (2cm long and 2cm deep) and the abdomen, which terminated in the duodenum, “which is the part of the small bowel leading directly from the stomach”.

40. Another stab wound also entered the deceased’s body from his back shoulder area. Dr Vuletic was unable to measure its precise depth.

41. Dr Vuletic said that it was not possible to identify which of the wounds could be considered fatal, due to the decomposition of the body. She considered that both types of the wounds were caused by a sharp instrument, “most likely a knife”. The width of the blade would have been between 1.5cm and 2cm. Due to the appearance of the stab wounds, consequent to the activity of maggots, it was not possible to determine whether there was one knife used, or more than one knife. I note that the width of the blade of the knife that was seized by police on 9 August 2016 is 2cm at its widest point, according to a photograph with a ruler alongside it that was tendered by the Crown.

42. Dr Vuletic said that the eyes and conjunctivae could not be seen “at all”. She did not observe any injuries to the area of the eyes, but could not exclude an injury to that area, because, “The area of the eyes was mummified and this is that term we use when the tissues are extremely dry and dehydrated”.

37. Dr Vuletic was questioned in cross-examination as to the possibility of there having been a sharp injury to the deceased’s eyes:

“Q. Okay. Now in relation to the eyes. I think you told the Crown Prosecutor that in fact you couldn’t see them and therefore you couldn’t exclude injury to them. Yes?

A. Yes.

Q. What you seem to be saying ma’am is that the areas around the eyes didn’t indicate to you any injury?

A. Correct.

Q. In other words around the eye socket, for want of a better word, the skin around there, there didn’t seem to be any consistent marks that was consistent with the skin being in contact with a sharp edge of any implement? And there was little, if you like, stripes, little cuts? There was none of that was there?

A. That is correct.

Q. And so can I invite you to conclude that in respect of the eyes, probably the fairest way of putting it is that, as far as your examination is concerned, there was simply no evidence that you could find that indicated any injuries to the eyes, that’s the bottom line isn’t it? Effectively?

A. Yes. Yes I agree, yes.”

44. In re-examination, the following exchange occurred:

“Q. My friend asked you some questions in relation to your examination of the eyes. And referred to the absence of marks around the eye socket and those sort of things. What was the significance of the mummification of the face as far as there being any apparent marks around the eye socket and marks in that area?

A. The mummification process makes it difficult or impossible to see injuries because the tissues become dehydrated and reduced in size. All the fluid goes and it would be, it would be quite easy I think to miss an injury to the skin at any rate, because of the deep, because of the mummification process.”

The discovery of items near the laneway on 9 August 2016

45. I note uncontested evidence from Detective Sergeant Christopher Reay (“DS Reay”), who was the initial officer in charge of the investigation, to the effect that on 9 August 2016, a gardener located a knife, a pair of gardening gloves and a beanie that had three holes cut into it for a mouth and eyes in a backyard that backed onto the laneway. The gardener photographed the items in situ on his smart phone, which were tendered into evidence. Police received the items on the same date.

Ms Ivana Sesardic

46. Ms Sesardic is a senior forensic biologist with the Forensic and Analytical Science Service, which is known as FASS. An edited version of her evidence from the first and second trials was tendered into evidence.

47. Ms Sesardic said that buccal samples were taken from AS, the accused and others. A DNA sample was taken from the deceased. Ms Sesardic gave evidence as to the results of the analysis of samples of DNA that were lifted from various items during the police investigation and her calculations of the “likelihood ratios” of the results. Her evidence was to the following effect.

48. A test for blood returned a positive result on both gardening gloves.

49. A tape lift from the back of the right glove had a mixture that originated from at least three individuals. The deceased, AS and the accused could not be excluded as contributors. Ms Sesardic calculated that the mixture was greater than 22 million times more likely to obtain this mixed profile if it originated from the deceased and two unknown, unrelated individuals rather than if it originated from three unknown, unrelated individuals in the Australian population. It was greater than 100 billion times more likely to obtain this mixed profile if it originated from AS and two unknown, unrelated individuals, rather than if it originated from three unknown, unrelated individuals in the Australian population. It was greater than 320,000 times more likely to obtain this mixed profile if it originated from the accused and two unknown, unrelated individuals, rather than if it originated from three unknown, unrelated individuals in the Australian population. It was greater than 100 billion times more likely to obtain this mixed profile if it originated from the deceased, AS and the accused, rather than if it originated from three unknown, unrelated individuals in the Australian population.

50. Tape lifts from the inside ring fingers of the right and left gloves disclosed mixtures that originated from at least the same three individuals. The relevant probabilities in respect of the inside ring finger of the left glove were as follows. The mixture was greater than 1.4 billion times more likely to obtain this mixed profile if it originated from the deceased and two unknown unrelated individuals rather than if it originated from three unknown, unrelated individuals in the Australian population. It was greater than 100 billion times more likely to obtain this mixed profile if it originated from AS and two unknown, unrelated individuals, rather than if it originated from three unknown, unrelated individuals in the Australian population. It was greater than 84 million times more likely to obtain this mixed profile if it originated from the accused and two unknown, unrelated individuals, rather than if it originated from three unknown, unrelated individuals in the Australian population. It was greater than 100 billion times more likely to obtain this mixed profile if it originated from the deceased, AES and the accused, rather than if it originated from three unknown, unrelated individuals in the Australian population.

51. The relevant probabilities in respect of the inside ring finger of the right glove were as follows. The mixture was greater than 64 million times more likely to obtain this mixed profile if it originated from the deceased and two unknown unrelated individuals rather than if it originated from three unknown, unrelated individuals in the Australian population. It was greater than 100 billion times more likely to obtain this mixed profile if it originated from AS and two unknown, unrelated individuals, rather than if it originated from three unknown, unrelated individuals in the Australian population. It was greater than 1.1 billion times more likely to obtain this mixed profile if it originated from the accused and two unknown, unrelated individuals, rather than if it originated from three unknown, unrelated individuals in the Australian population. It was greater than 100 billion times more likely to obtain this mixed profile if it originated from the deceased, AS and the accused, rather than if it originated from three unknown, unrelated individuals in the Australian population.

52. A tape lift from the interior cuff area of the right glove indicated the DNA profile of at least three individuals. The deceased and AS could not be excluded. The DNA of the third individual was not suitable for comparison, due to its low level and complexity.

53. The beanie that was recovered from the same location was also tested. A tape lift from the rear left interior recovered a mixture of at least four individuals. The accused and AS could not be excluded. The relevant probabilities were as follows. The mixture was greater than 100 billion times more likely to obtain this mixed profile if it originated from AS and three unknown, unrelated individuals, rather than if it originated from four unknown, unrelated individuals in the Australian population. It was greater than 100 billion times more likely to obtain this mixed profile if it originated from the accused and three unknown, unrelated individuals, rather than if it originated from four unknown, unrelated individuals in the Australian population. It was greater than 100 billion times more likely to obtain this mixed profile if it originated from AS, the accused, and two unknown unrelated individuals rather than if it originated from four unknown, unrelated individuals in the Australian population.

54. A tape lift from the rear right interior of the beanie disclosed a mixture that originated from at least three individuals. The accused and AS could not be excluded as contributors. The DNA of the third contributor was not suitable for comparison, due to its low level. The relevant probabilities were as follows. The mixture was greater than 100 billion times more likely to obtain this mixed profile if it originated from AS and two unknown, unrelated individuals, rather than if it originated from three unknown, unrelated individuals in the Australian population. It was greater than 100 billion times more likely to obtain this mixed profile if it originated from the accused and two unknown, unrelated individuals, rather than if it originated from three unknown, unrelated individuals in the Australian population. It was greater than 100 billion times more likely to obtain this mixed profile if it originated from AS, the accused, and an unknown unrelated individual rather than if it originated from three unknown, unrelated individuals in the Australian population.

55. The knife that was in the same location was tested. Stains on the knife tested positive for blood. Analysis of blood on the knife established that it had the same DNA profile as the deceased. A swab taken from the top of the knife handle had DNA from at least three individuals, one from the right side of the handle had at least two contributors and one from the bottom of the handle had at least two contributors. The deceased could not be excluded as a contributor to all three swabs. The DNA from the other contributors was not suitable for comparison.

56. Tape lifts from the front left and right of the jumper that was on the deceased’s body disclosed DNA that originated from at least two individuals. The deceased and AS could not be excluded as contributors.

57. Ms Sesardic explained that when a person touches a surface, they do not necessarily leave their DNA on that surface:

“There are many instances, many, many instances where DNA testing has not recovered a profile when someone has touched an item. The success rate of obtaining a DNA profile can be dependent on the nature of the contact; the duration; the type of material and also the variation in the DNA of the person themselves, if they have a large amount of DNA on their hands then they will be more likely to leave a DNA profile, a usable amount of DNA on an item. There may be DNA recovered but simply of too low a level for the purposes of the DNA testing methodology.”

58. In cross-examination, Ms Sesardic was questioned about the results that did not exclude the accused as a contributor to some of the tape lifts from inside the gloves.

59. Ms Sesardic explained the process of secondary transfer, whereby DNA from an individual may be located on a surface without that individual having had contact with that surface, through transfer by an intermediary. She also explained that tertiary transfer was possible, being a process whereby, for example, DNA could be transferred from one person to a surface, which is touched by a second person who then touches another surface, so that the DNA of the first person is placed onto that last surface.

60. DS Reay gave evidence that the fingerprints of Valentine (“Val”) Wright were found on a box in the deceased’s house. No fingerprints of the accused or AS were located on objects in the house.

The incident of 13 August 2016

61. On 13 August 2016, at about 11:30pm, police attended Hayley Street in response to a complaint of domestic violence. It is not apparent from the evidence who it was that called police. The accused was present with her children. Police questioned the accused utilising a Domestic Violence Evidence in Chief (“DVEC”) video which was activated at 11:47pm and which was tendered into evidence.

62. Police asked the accused how long she had been in a relationship with AS. She replied, “Three weeks”. She said she was missing a period and thought she may be pregnant to him. She said that they had a fight two to three hours before, which started when he left and didn’t tell her where he was going. When AS returned, he wanted to have sex with her. She refused and called him a “cheating dog”. They then fought, initially with pushing and shoving. He made an insulting comment about her children, and she responded by punching him in the mouth. He then jumped on her and pinned her on the bed, holding her by her throat so that she had difficulty breathing, then punched her “in the guts”, saying, “I’m gunna kill the kiddy, you are pregnant”. She fell down and “he’s jumping on my head”. AS also punched her in the head. Police observed an injury to her lip and swelling under an eye. AS threatened to kill her children and burn down the house. As the accused related the incident, the sequence of events sometimes varied. She said that AS had not been violent before.

63. The accused said that at one point in the fight AS took a knife that she had in the room, held it to his throat and threatened to kill himself. She took the knife from him. She said:

“Like I’m not gunna lie, I have knives stashed around my house. Due to my other partner. … ‘cause I’m still traumatised and like depressed from what he’s put me through. I sleep with knives under my mattress and all.”

64. The accused spent the next two nights at a motel. AS was arrested early the next day. He was made the subject of an Apprehended Domestic Violence Order (“the ADVO”) and released. A copy of the ADVO was tendered. It was dated 14 August 2016 at 4:56am. A condition of the ADVO was that AS “must not enter the premises at which the protected person may from time to time reside or work or other specified premises (Hayley Street)”. AS then joined the accused at the motel.

15 August 2016

65. The following Monday night, at 9:45pm, police interviewed the accused at Lithgow Hospital with a DVEC. She said that on that afternoon she saw AS and heard from a friend that AS had been threatening to return that night. She was afraid that he would set fire to the house while she and her children were asleep. She said that he had not breached the ADVO. She said, “I’m scared I’m gunna end up dead ... ‘cause I know what he’s capable of ... and what he’s done to other people”.

66. The accused was also given accommodation at a motel from 9–12 September 2016 while community housing was arranged for her at Birubi Crescent, Bowenfels (“Birubi Crescent”).

Evidence of alleged admissions by the accused and AS

Admissions made by the accused and AS between 7 August 2016 and 7 September 2016

67. As previously observed, the evidence of alleged admissions made by AS and the accused includes evidence given by their friends, relatives and associates prior to the discovery of the deceased’s body. The evidence of many of these conversations was unspecific as to precise dates or times. As noted, as part of the attack on the reliability of AS’s evidence, the defence relied upon evidence of conversations prior to his arrest in which he admitted his guilt and referred to the incident in terms that conveyed that he acted alone. The evidence of all of the conversations, relayed in chronological order as closely as the evidence allows, is as follows.

7 August 2016: Conversation between AS and AY

68. AY is a cousin of AS. According to an aerial map of the relevant part of Lithgow, which is part of Exhibit A, (“the Ex A map”) she resided approximately 900m from the Main Street house. On 8 September 2016, she informed police of a conversation she had with AS on the evening of 7 August 2016. AY was able to fix the date because she recalled that after the conversation, she sent a message to the accused using Facebook Messenger, a printout of which is Exhibit Q.

69. AY’s evidence was as follows. AS visited her at about 6pm that evening, at her home. He had “something to eat and drink” and after about an hour he left, saying he would return. He came back later that evening. He was “shaking and crying and he was vomiting”. AY continued:

“He told me that he had done something really bad and I asked him what he’d done and he told me that he’d stabbed someone to death. … He threw money across my kitchen floor and he told me that he murdered the man over drug money. … maybe like $500. He told me that he had stabbed him with a knife multiple times. … He said that he threw it down a storm drain.”

70. AY said the money AS threw across the floor was notes that he took from his bum-bag. In cross-examination, AY agreed that in her statement that she made to police on 8 September 2016, she stated that AS had said, “he’d stabbed him and he couldn’t stop”.

71. Returning to her evidence in chief, AY said that AS asked her to wash his jumper, which had “a tiny bit of blood on it”. He washed his hands and face. He left, saying that “he had to go and tell his girlfriend what he had done”. AY said that AS was at her home for about 45 minutes. About an hour after he left, she sent the accused the Facebook message which is Exhibit Q, which read, “Hey, I’m [AS’s] cousin. Is he at yours?” The copy of the Facebook message indicates that it was sent “7 AUG AT 21:55”. AY said that she sent the message because:

“He told me that he was going to tell Ammie what he had done and he’d call me when he got there and he never called me, so I messaged her to make sure he was okay.”

72. I note that, according to her evidence as to times and working backwards from the time indicated on Exhibit Q, AS was away from her house that evening between approximately 7pm and 8pm, which suggests that the killing occurred between those approximate times on 7 August 2016.

73. AY said that on a later occasion she was driving along Main Street with AS. He pointed out a house. She said:

“… he turned around to look at the house and I asked him what he was looking at and he told me he was checking to see if there were lights on or if he could tell that anyone had been to the house where he murdered the man.”

AX

74. AX is a sister-in-law of AS. She is married to BX, who is a brother of AS. Whilst driving a car in which her husband was a passenger, AX heard a phone call between him and AS which was on loudspeaker. She said in evidence in chief:

“A. I just remember him saying that he’s done something stupid, that a man was dead, he wasn’t sure whether he done it or not, and me and [BX] drove straight to his house to see what actually happened that day.

…

Q. But just in terms of the first conversation, was there anything that he said in that conversation that indicated whether he’d been on his own or whether there was more than one person involved?

A. He said - he kept saying ‘they’ and ‘we’ and--

Q. When he said ‘we’ can you remember … what it was that he said?

A. He said ‘We stabbed him. We went there over drug money and it turned bad.’”

75. AX continued that they drove straight to Hayley Street, where AS was living, and she parked opposite. She continued:

“[AS] came out the front, he was a mess, so he’d been crying and stressed out and everything. He stated that ‘We went to a house to collect money’, he said ‘We stabbed him. We weren’t sure whether he was alive.’ and he wasn’t quite sure whether it was - what involvement he had. I remember after that part [BX] got a bit angry and [BX] called him an idiot and [AS] started abusing us and we drove away.”

76. About a week later, after dropping off one of her children at school, she saw AS and the accused in Main Street Lithgow and offered them a lift. As they drove along Main Street, AS, who was seated in the front passenger seat, pointed to a house and said: “that was the house that it happened at”. AX said that the accused, who was sitting in the back seat, laughed. About three weeks later, the murder was on the news.

77. AX said that AS and the accused stayed with her and her husband the night before they were arrested, and for the week prior to then, they stayed with an aunt of AS, who lived in the same street. The day before their arrest, that is, on 4 October 2016, the accused used a pregnancy test, which was positive. She and AX then had a conversation about “children … money situations and everything like that”. AX’s evidence was:

“I stated that the most amount of money I’ve ever seen in my life was from Centrelink and she stated that the most she’d seen in her life - was of cash that she found under that man’s bed. … I said that if there was so much money and [AS] was involved why did not [AS] have any money because he was always asking us for money and she said that she was giving him a little bit each day. She also told me they had that much money that they were tipping taxi drivers $50 notes.”

78. AX continued that the accused said that the money was “From a Subway bag under the bed of the man that got stabbed”. AX said that she and the accused then had a further conversation about what had happened:

“She told me that they went there to collect money for a drug debt that was owed to her friend, she also told me that [AS] was standing out the front and heard yelling and [AS] ran in, he grabbed the man - the man grabbed [AS], [AS] turned around and stabbed the man, she also stabbed him and they said that they would have been able to get rid of the body and chop it up if she was able to get through the bone.”

79. In cross-examination, it was put to AX that the accused was not in her car when AS pointed out the house, and there was no discussion between her and the accused about the accused’s role, if any, in the killing. She adhered to her evidence, saying, “[AS] stated about the murder and he also stated when Ammie’s involvement so I thought I’d ask Ammie myself”. Counsel for the defence put to AX that:

“… what you actually said to her is, are you really going to tell the police you were involved, you will lose everything. Are you going to say you were involved, why would you say you were involved when you weren’t involved.”

She rejected that proposition.

80. Counsel for the defence read to AX from her statement other aspects of her version of what the accused had told her, with which she agreed:

“[AS] and a couple of other people went to the house and they all smoked … crack pipes … and [AS] effectively was meant to stand watch while people went inside.”

81. Counsel for the defence noted that in her statement AX said that the accused told her that she and AS returned a few days after and started “chopping him up in bags and couldn’t get through the bone”. It was put to her that the accused’s account was what AS had told her, not the accused. She responded, “No that was something that Ammie stated at my bench that day. I clearly remember it, traumatised my brain for a year and a half”.

82. AX said that she contacted Crime Stoppers the same night as that conversation. I note that DS Reay gave evidence of calls made to Crime Stoppers, and that none corroborated AX’s claim of contacting Crime Stoppers.

BX

83. BX gave evidence to the effect that AS admitted to being involved in the murder, in the following terms:

“[H]e said that they were told to go to this person’s house to collect debt money or something like that it was and, yeah, he was told to stay out the back of [the deceased’s] house. He heard screaming, went in and that’s when his co-accused was attacking [the deceased]. … He just said that there was him, Ammie and a few other people that went there to collect debt money or something …”

84. BX could not recollect if that conversation happened before or after the murder was in the news. BX said that while AS and the accused were staying with him and his wife, the night before they were arrested, they had a conversation with the accused:

“We were sitting at my kitchen bench and we were talking about what happened, she told us that she got money out from under [the deceased’s] bed and she tried decapitating him but couldn’t get through the bone and she also told me that she tried stabbing him in the eye.”

85. In cross-examination, it was put to BX that he and AX did not have a conversation that night with only the accused, but rather with both the accused and AS, and the conversation was not as he related, but instead, was along the following lines:

“‘She loves you, [AS], you’re fucked.’, ‘You’re lucky’, effectively, ‘that she’s prepared to stand by you.’ … ‘That’s how you know she loves you. She’s trying to protect you when she’s not even involved.’”

86. BX disagreed.

Michael Hassen

87. Mr Hassen gave evidence that he had known AS for most of his life. He said that “a couple of weeks” before police discovered the deceased’s body, he had a conversation with AS. Mr Hassen was at his home in the presence of his partner, Naomi Pender, and a friend, Jodie Collins. AS arrived and asked to speak to him in private. Mr Hassen responded: “Just say it [AS]”. AS said, “I fucked up, I stabbed someone over owing me money for Shard”. Mr Hassen said that he understood the word “shard” to mean “ice” (methylamphetamine). Mr Hassen made a statement to police on 30 September 2016.

88. DS Reay agreed that Naomi Pender had given a statement to police on 30 September 2016 in which she said that AS had visited her and Michael Hassen, and when told to “Just say it”, said, “I fucked up, I fucked up, I stabbed a bloke. It’s over, he owed me money I stabbed him”.

Christina Hardwick

89. DS Reay agreed that on 27 September 2016, Christina Hardwick, who is the mother of Jake Dukes, made a statement in which she said that in August 2016, AS visited her. She said:

“[AS] walked in and goes ‘I just stabbed somebody’ … some bloke owed him money, he was standing there behind the door watching him and then just stabbed him in the eye and in the guts ...”

90. Ms Hardwick told police that AS then went into a separate room to speak with Jake Dukes and his girlfriend.

Jake Dukes

91. Mr Dukes gave evidence in the second trial. His evidence was tendered and read in this trial. His evidence was that one night at about 10pm in early August 2016, AS arrived at the place where he lived with his mother, siblings and his girlfriend, who has since died. Mr Dukes said:

“He first said that he was going back to gaol, he was going back to gaol, he repeated it three times, and then I asked him, ‘Why? What did you do?’. He said, ‘I stabbed someone’, and he was doing the stabbing motion, and I said, ‘Why would anybody send over tip money?’. ‘He owed me $600 for ice, and I stabbed him once in the eye, once in the stomach, and somewhere else; I just can’t remember’.”

92. Mr Dukes said that three days to a week later, he saw AS again. While they were walking through an alleyway near Cooerwull school, AS pointed out a house and said: “That’s where the body is”. Mr Dukes said that two to three days later, AS phoned him and asked if he could babysit for them “so they could go and move that thing”. Mr Dukes replied, “‘Yeah, we can; just let us know when you want us to come over and watch him’, and they said, ‘Okay, well, we’ll call you back then’”. He said that although the call was from AS, he was using the accused’s phone and “you could hear Ammie”. The accused rang back later that night or the next night, saying “can we go over and watch the kids now”. She said, “she’s got to go and move that thing in the car”. Mr Dukes said they did not end up going over there.

93. An edited call charge record for a phone used by Mr Dukes was tendered, which recorded six voice calls from the accused’s phone: one on 12 August, two on 17 August and three on 18 August 2016. The calls on 17 August were at 2:13pm (26 secs) and 4:50pm (24 secs). The calls on 18 August were at 3:17am (23 secs), 10:50am (46 secs) and 5:45pm (51 secs).

Cheyenne Hinds

94. Ms Hinds is the accused’s sister, the eldest of four siblings. She gave evidence that she had a phone conversation with the accused during which the accused said that she had been assaulted by AS. When asked to recall the conversation, Ms Hinds relevantly said:

“She said to me that [AS] bashed her up, she’s been in and out of conscious for a few days … and she said that she was going to tell the police. She told [AS] that she was going to tell the police what he’d done and the consequences that she copped was to be bashed.”

95. Ms Hinds then gave a further account of what was said:

“She said that [AS] done something bad … and I just assumed he cheated on me and then I said did you ask what happened and she said yeah he said that he’s killed somebody and he wants me to help him move the body or something or other and I said to her Ammie ring the police, you’ve got to ring the police and she was - she goes I’m scared, I’m scared.”

96. Ms Hinds was shown a statement that she made to police on 6 October 2016 and was invited to refresh her memory from it as to what was said. She then gave this account:

“Ammie said that she was bashed by [AS], she’s been out of conscious for like three days ... she said that [AS] done something bad and she thought that he cheated on her.”

97. In cross-examination by leave by the Crown Prosecutor, Ms Hinds agreed that before that part of her statement, she had stated, “[AS] done something bad and I was in the wrong place at the wrong time, because I know about it I am scared to move”. That was followed by, “I said, ‘Just pack your stuff and come live with me’. She said, ‘[AS] said he would put me 10 feet under’ and Ammie was crying as she said this”.

Hayley Spittles

98. Ms Spittles said that she met the accused through a friend, who was the accused’s cousin. On a date that she did not recall, but which was established by uncontested evidence to have been 29 August 2016, she travelled from Bathurst to Lithgow to meet the accused, arriving around 1pm. During their meeting, they had a conversation. The only other person present was the accused’s younger son. The older son was at Cooerwull Public School. The accused said that she and AS “had done a break and enter and it went wrong”. Ms Spittles continued:

“I asked her how it went wrong, and she said the guy started fighting back and got it over [AS]. … So she stabbed him in the eye … and then [AS] stabbed him also. … [AS] was still in the house while she was, like at home with me, there, and that she was like going to go back there. … For a short, for a while, I was kind of a bit shocked of what I’ve heard; and then she asked me if I could follow her to school to pick [her older son] up.”

99. Ms Spittles said that as they walked down Main Street, the accused pointed to a house that was near the school and said, “That’s the house where it happened … could I go and pick [her older son] up while she went back in there … to see if she could find things in there”. In cross-examination, Ms Spittles agreed that according to her statement, the accused said, “this is the house here, do you want to come in and have a look?” When it was read to her by counsel, she replied, “Yes, actually I can remember that”.

100. Ms Spittles said that the accused walked up a laneway while she continued with the accused’s younger son and picked up the accused’s older son and, as they started walking out of the school’s side gate, the accused emerged from the laneway behind the houses. As they walked along Main Street, Ms Spittles asked, “what did you see in there and she said he was dead and I had to put a piece of newspaper over his head so I didn’t have to look at him”.

101. Ms Spittles approached police on 18 September 2016 about what she had been told. She agreed that she had been charged with assaulting the accused. She said that incident occurred after 18 September 2016.

102. In cross-examination, it was suggested to Ms Spittles that she went to police on 18 September because she had a grudge against the accused and wanted to “get back” at her. Ms Spittles agreed that she was using ice at that time, in large quantities and that on the day she met with the accused, she had smoked marijuana. She disagreed that it had “some effect” on her. It was put to her that the accused did not go to the house. Ms Spittles agreed that her statement did not refer to the accused emerging from the laneway. She agreed in cross-examination that there were other references in her statement to what the accused had told her she did in the house: “‘yeah it was yucky I nearly trod on his head’, it was like, I’m like ‘what the, it was like squishy”. Her evidence was that those things were also said. She agreed that the reference to putting the newspaper over his head was not.

103. Counsel for the defence put to Ms Spittles a version of events concerning the assault by her of the accused. Ms Spittles advanced a version which I find to be unlikely.

104. Counsel for the defence put to Ms Spittles a different version of what was said that day by the accused to her, which was as follows. She said to the accused: “Have you heard the rumours? Apparently, [AS] killed someone”. The accused replied, “Really?” Ms Spittles said, “Yeah, you know where [your older son] goes to school, it’s near there”. As they walked to the school, Ms Spittles pointed out to the accused the deceased’s house. She and the accused then walked down the alleyway behind the house and looked into the back yard. Ms Spittles rejected that version of events.

Paul McLeay

105. Paul McLeay did not give evidence in the first trial. A medical certificate was provided to police stating he was unfit to attend the trial. He was called in the second trial. His evidence was tendered and read in this trial. It was to the following effect.

106. Mr McLeay knew AS for about 10 years and early in 2016 he was introduced to the accused. Towards the end of August 2016, while driving in Lithgow, he saw the accused. He pulled over and spoke to her, and shortly afterwards he was at Hayley Street with the accused and AS. He and AS smoked marijuana with a bong. Immediately before they did that, AS said he had murdered someone. Mr McLeay said he “more or less called him a liar” and left shortly afterwards. The accused was not present in the room during that conversation. He said:

“I think it might have been a couple of days later I ran into them again and I asked her, and she said, ‘oh yeah, we did.’ No way, like. And that's when I think I went to the police after that. I’m pretty sure I did.”

107. Following an application by the Crown Prosecutor pursuant to s 32 of the Evidence Act 1995 (NSW), Mr McLeay was invited to refresh his memory from his statement. He said:

“Q. Does that help you remember any conversations you had?

A. Yeah, yeah. I actually, yeah. When [AS] left the room, that's right, yeah; that’s when she come clean and told me, and the way she told me, it was, yeah, I sort of maybe thought there was some truth in it cause she was, I don’t know, it’s just the way they said it, you know; it was just eerie.

Q. What did Ms Douglass say to you?

A. That they did stab a guy, and a robbery went wrong, or something; a break and enter. Yeah, they stabbed him, and I said to her, go to the police; do the right thing, you know.

Q. You just gave some evidence that she said they stabbed a guy. What were the actual words Ms Douglass used?

A. They’d stabbed a guy, a robbery had gone wrong, or something like - I thought a break and enter or something like that; I’m not sure.

Q. Doing the best you can, can you tell the Court her actual words?

A. They’d stabbed someone, like, killed someone, yeah; stabbed him to death.

..

Q. Can you tell the Court what if anything you said when Ms Douglass told you this?

A. Just told her to go to the police I think.”

108. Mr McLeay gave evidence of another conversation with AS in late September 2016 at Birubi Crescent. AS said, “We done a robbery and I knew the guy, I stabbed him”.

109. In cross-examination, Mr McLeay said that in August 2016 he was at a low point in his life and he may have been feeling the effects of ice on the day that he went to Hayley Street.

AV

110. AV gave evidence of an admission made to him and Val Wright by AS on 6 September 2016. He was questioned about the conversation as it appeared in a statement that he made to police the following day:

“Q. And Valentine starts by saying, ‘Have you heard what [AS] has done’ and you say, ‘No’, is that right?

A. That’s right.

Q. Valentine then says in the presence of you, Valentine and [AS], ‘He killed some cunt.’ That’s what you said in your statement, is that right, and is that true?

A. Yeah.

Q. And you said, ‘What’ and he repeated - Valentine says ‘He killed some old bloke.’?

A. Yeah.

Q. And is all that true sir?

A. Yes that’s true.

Q. You then record in your statement that [AS] said ‘I had to, I had to, I was inside this bloke’s place and he came out of nowhere, I lunged at him and stabbed him to death, I lost control, the ice just took over me’; okay?

A. Yeah.

Q. So at that stage [AS] say ‘I, I, I’ didn’t he?

A. That’s right.

Q. And you say then there’s a short silence where no-one was saying anything?

A. Yeah.

Q. And [AS] then says ‘I stabbed the cunt in the eye first’ and you say ‘No way’ and you record in your statement that [AS] then says ‘Yeah I couldn’t help it’?

A. Yeah.

Q. And is all that true, sir?

A. That’s true, yeah.

Q. And you say ‘When are you supposed to have done this?’ and [AS] says ‘It’s been over two weeks, the cunt’s still lying in his house, I’m going to have to try and move the body but I don’t know how so I’ve just covered him up with papers’ to which you say ‘Bullshit’?

A. Yeah.

Q. And is all that true, that’s what you said?

A. Yeah that’s true, yeah.”

Joshua Sharwood

111. Mr Sharwood gave evidence that he was in the same “friendship group” as AS. He saw AS and the accused at Lithgow train station at about 5:15am one morning around two months before he made a statement to police, which was on 24 October 2016. Mr Sharwood thought that he had visited the accused’s residence twice before that morning, and thus knew her. AS asked him if he could “get any marijuana” and showed him an amount of about $2,000 in cash, in $20 and $50 notes. They eventually made their way to the accused’s residence at Hayley Street, where he asked AS where he got the money from. AS replied, “I murdered this cunt bro”. The accused added, “You’re lucky I stabbed the dog in the eye”. AS also said: “I just kept stabbing him, the cunt was going down and I kept on stabbing him. … I didn’t know how old the cunt was”.

112. AS said, in relation to the money: “he could keep returning, that no-one knew where it was, so he could keep returning and getting more and more”. Mr Sharwood said that he heard about the murder on the news. Afterwards, he saw AS, who seemed “very agitated”. Mr Sharwood said he realised that AS and the accused had been serious about what they said they had done. That evening, he phoned police and told them about the conversation he had with AS and the accused.

BY

113. A man who I will refer to as BY, who is a cousin of a woman I will refer to as AY, has known AS all of his life. BY gave evidence of a conversation that he had with AS after he heard about the murder in the media. He said that AS visited him. BY noticed that AS had a knife with a serrated blade in the front of his pants. AS asked BY if he had seen John O’Heir. BY replied that he had not, and asked AS if he had heard about the murder in Lithgow. AS replied: “Yes I was involved, I stabbed the bloke 14 times around the throat”. BY’s evidence was that he was shocked and asked him to leave.

Keith Anderson

114. Keith Anderson, who is known as “Gaffa”, made a statement to police on 6 October 2016. In his evidence he agreed that in his statement he referred to a conversation that occurred in Hayley Street about six weeks previously, which I note would have been in late August 2016. Present were AS, the accused, AV, and “a few others”. He agreed that in his statement he related a conversation between AS and AV, in which AS said:

“‘[I was] hiding in the kitchen of your bloke’s house near Bunnings… I had been there for about an hour. The old bloke saw me … so I went at him with a knife and stabbed him in the eye.’ …[AS] went on to say that he covered up the old bloke with an old newspaper.”

115. Mr Williams agreed that the Bunnings shop was “somewhere near” a house he knew in Main Street. Other evidence established that particular house was next door to the deceased’s house.

Michael Williams

116. Mr Williams gave evidence that in August 2016 he, AV and “Gaffa” had a conversation with AS in Hayley Street. It was the first time that he had met AS. The accused was in the same room, but did not say anything during the conversation. Mr Williams said:

“The first time I met [AS] and he was all sort of freaking out and sort of thing but he didn’t - he didn’t say a name or where he just said oh, he’d killed someone, rah, rah, rah. … he just said he walked in and stabbed him. … He turned around and rushed in like the fellow rushed in so yeah stabbed him and he dropped dead and that was it.”

117. Mr Williams agreed that he had been charged with using some of the deceased’s credit cards.

Sean Drury

118. Mr Drury made a recorded interview with police on 1 November 2016. He gave evidence that he knew AS and of a conversation he had with him, after police had found the deceased’s body. Mr Drury said that he had heard an allegation that AS had committed the murder. He asked AS: “Did you do it or not?” Mr Drury agreed that the contents of his interview, as to what AS said, were correct. The relevant aspect of his interview was as follows:

“… And he was walking along like smiling about it and going, ‘like I kill cunts, like yeah’. He made full admission to me, ‘I killed this bloke’, … and how he done it; he waited behind the door. … He reckons … the doorway was there, he was standing behind it like, that he had a fucking [steak] knife and he reckons that he went like that. He had his head out like and that he turned around, Old Mate seen him and he froze and he went over and the first stab was underneath the eye and then he just went crazy he reckons. He was punching and kicking and stabbing him.”

119. Mr Drury said that AS told him the motive for the attack was “Money. He owes him money for drugs”. Mr Drury said he asked AS if there was anyone else involved. He said AS replied: “Mick Williams and that chick that he was with”. Mr Drury was asked:

“Q. Just that phrase, ‘the chick he was with’, was that a reference to someone that Mick Williams was with, or did you understand from what [AS] was saying, it was someone that he was with?

A. I thought it was [AS’s], yeah.

Q. And when you say ‘he was with’ what do you mean?

A. His partner, sleeping with her, you know.”

BW

120. BW gave evidence in the second trial. A transcript of her evidence was read in this trial. Her evidence was as follows. She is a sister of AS’s mother and considered herself to be close to AS. About a week after media reports of the murder in Main Street, she was told by AS’s mother that he was implicated in the murder. On a night in late September, she received a call from AS, asking if he could visit and introduce his girlfriend. He arrived about 20 minutes later. As they sat in BW’s loungeroom with her partner (since deceased), she said:

”[AS] and I had a general discussion, talked about our family, just had a catch up and then I asked, I said to [AS] I wanted to ask him something, I'd heard rumours that he was involved in the murder of the man in Lithgow and I said ‘[AS] I want the truth’ and [he] threw his hands up in the air and said ‘yes’, he was involved, ‘it wasn't meant to go down the way it did’, they ‘went there to rob him’ and the man had him in a headlock, was fighting him. During this time Ammie piped up, ‘I stabbed him in the eye and I stabbed him in the back’.”

121. AS and Ammie then left, arguing as they did so. She said that either that night or the next day she contacted Crime Stoppers, “explained my situation and asked to remain anonymous because I didn’t want repercussions from my family and I made the report to Crime Stoppers”. It was common ground that Crime Stoppers had not produced a record of the call she allegedly made. It was put to BW in cross-examination that the accused had not said that she stabbed someone in the eye or the back. She disagreed, saying:

“… I remember what was said because I’m losing my sight, and to think that someone could stab someone in the eye and take their sight horrifies me. … It is something I’ll never forget.”

Shilo Morris

122. Ms Morris gave evidence that she had known AS since he was aged 15 or 16. About three weeks after the killing, AS visited her and her partner. She agreed that the contents of a statement she made to police in late September 2016 were correct as to the conversation that ensued. AS told them:

“Oh crap, you know the murder in Main Street? Oh shit, I’m the one who done it and I feel guilty about it as he was in his 60s. It was over money. The old fella owed me for ice.”

Admissions made by the accused and AS on and after 7 September 2016

123. Police located the deceased’s body on 7 September 2016. Police tape was placed around the premises.

124. Following the discovery of the deceased’s body by police, LD and TI warrants were obtained. Some conversations between the accused and others that occurred on and after 7 September 2016 were captured. In some conversations, the accused allegedly either admitted stabbing the deceased or otherwise implicated herself in the killing. In others, she denied any involvement in the killing. In addition, witnesses gave evidence of uncaptured conversations with the accused discussing the incident. Most of these were not specific as to when they occurred.

7 September 2016: conversation between AS and AY

125. AY gave evidence that on 7 September 2016, she drove past the house and noticed that police were there. She told AS who, she said, “didn’t really care”. AY said the following day, she went to the police “and told them everything I knew”, because she had seen a Facebook post “saying that there had been a man murdered in the house”.

7 September 2016: Conversation between the accused, AS, AV, Val Wright and Keith Anderson

126. In a conversation that was recorded on a LD by police in the accused’s residence, the accused and AS were informed by AV that he had just seen police “Where you done that thing, you haven’t moved that body yet have ya? Cause there’s fuckin Cops around that joint”. The following conversation occurred:

“[Accused]: Where?

…

[AV]: Where [AS] was seen, done it

…

[Accused]: Where you took me?

[AS]: Where ol’ matey is

[Accused]: Yeah, so there’s Copper dogs there?

…

[Accused]: The face mask is there anyway, so I’m gone. … The face mask with my DNA on it, I left it in the backyard. … My prints are all over the house I didn’t have gloves on … So I’m gone … We’ll get done for murder … nah I’m joking.”

127. Later, the accused said:

“[Accused]: I didn’t even think of gloves cos I have the new tattoo with glad wrap wrapped around it. Oh well fuck it, just deny it.

[AV]: I thought it was only [AS], I didn’t know you were in it.”

128. The accused is not heard to contradict AV’s observation. I note that Val Wright gave evidence that he had given the accused a tattoo on her hand, “roughly a week” before “the tape went up” on the Main Street house. He said that he gave it to her at her residence in Hayley Street. It was not suggested to him in cross-examination that he was mistaken as to when he gave the accused the tattoo.

129. At a later point, the accused said:

“[Accused]: (INAUDIBLE) Probably fingerprint it all, and there, there’s that many fingerprints all over it

[AV]: Are you kicking me?

[Accused]: Someone’s a dog ... We’ve gotta hunt them down.”

130. Later, the accused said:

“Coz I was there too.

…

If I find out who done it, I’m going to shoot em.

…

You were here; I’ll say that, coz I was with ya.

…

My face mask is out the back.”

10 September 2016: conversation between accused and Cheyenne Hinds

131. The accused and her older sister, Cheyenne Hinds, had a phone conversation that commenced at 11:52am:

“[Accused]: I’m going to gaol.

C Hinds: (Laughs) You always say that.

[Accused]: (Laughs) I’m serious. Didn’t you see it on the news? (Laughs)

C Hinds: (Laughs) You know Mum reckons you were in some murder or something?

[Accused]: Yes.

C Hinds: Were ya?

[Accused]: Yeah.

C Hinds: You’re a dumb cunt, you are.

[Accused]: Didn’t you see it on the news?

C Hinds: I don’t get to watch the fuckin’ news.

[Accused]: I’m serious.”

132. Later in the same call, the accused referred to AS:

“You know what? I can’t … do this anymore. … I’m serious. I can’t … I … can’t do it anymore. I’ve had enough. … He’s just dogging me. … Telling people that I’m setting them up.”

10 September 2016: Second conversation between accused and Cheyenne Hinds, with AS audibly present with the accused

133. In a phone call that commenced at 4:46pm the same day, the following conversation occurred:

“[Accused]: I’ve got to go on the run. Like, I’ve got to get out of here ...

C Hinds: If that’s like scattered talk.

[Accused]: No, I’m serious. ‘Cause of what I done when I was scattered. And too many people know. That’s why, like, I don’t want to – my prints are all ... all over that house.’

C Hinds: Say he was a drug dealer. (Laughs)

[Accused]: (Laughs) (Extract concluded)

(The accused speaks with AS in background ‘Don’t talk, tell them anything, anybody. Just don’t tell them where you are, turn your location off.’

…

[Accused]: Yeah, but I’m serious. Listen to the radio, all the news, it’s Lithgow Main Street, they found a body.

C Hinds: What happened? (Pause)

[Accused]: Oh, I just went to rob somebody and it went wrong and yeah. (Pause) He had to go ...

C Hinds: You’re joking.

[Accused]: I’m serious. I’m not joking. (Laughs) I’m being deadset serious ...

…

[Accused]: … fuckin’ all my fingerprints are over the house.

C Hinds: Yeah, just say ...

[Accused]: ... I’m just worried

…

[Accused]: …. I only did it for the cash and then it went wrong, so yeah. But that was like three weeks ago, four weeks ago nearly. And ’cause somebody we know, we had a fight with them. I reckon they’ve given us up.”

7 September 2016: conversation between AS and AY

134. At 5:31pm, AY phoned AS. During their conversation, the following exchange occurred:

“[AS]: … apparently, they’ve charged a 22 year old with that. … I am just wait for her ah this person to get off the phone, so she can fill me in on more but apparently a 22 year old has been charged.

[AY]: Shit, did you do it alone.

[AS]: Yeah but see there was a few others that went there and must have left their prints there.”

11 September 2016: conversation between AS and Caitlyn Constable

135. AS was recorded in a phone conversation with a woman who in evidence he agreed was a “trusted friend”, just before midnight on 11 September 2016, in which he related his role in the killing. He said:

“… everything that you’ve heard is true … it did happen it was me. … was over drug money mate, you know, the cunt owed me five grand. … Didn’t pay up so, he got what he got, and I ended up making me money back you know I made $53,000 extra … I blew it all though, I am a fucking idiot … Pokies mate, pokies. 58 grand, straight through the pokies. … You know you like you should have known something was up when I went into that house when you were with me that day. … it’s like a bit fucking hard talking … over the phone [because] I don’t know if my phone’s tapped or what not.”

13 September 2016: conversation between the accused and her mother

136. The accused’s mother, Coral Douglass, phoned the accused and told her that police had phoned her. Her mother is referred to as CD in the transcript of the conversation. The conversation continued:

“[Accused]: About what?

CD: Oh, about what me and, um, my daughter’s been talking about on the phone. Um...”

[Accused]: (Cries)

CD: What are you crying about?

[Accused]: Nothing. I didn’t do anything anyway ...

CD: Yes you – I know that. (Pause) I told, remember I said someone’s fucking my phones?

[Accused]: Yeah.

CD: ... listening? Now … he’s fuckin’ sending … Homicide Squad from Sydney to … see me. Aimme, I don’t know nothing about that … shit. (Pause) You know I don’t know anything – I don’t even go to Lithgow, so how … would I know anything that happened up there? … You know what I’m saying?

[Accused]: Yeah. Don’t say anything.

CD: No, I don’t know anything, so … why are they coming...

[Accused]: ’Cause I don’t know anything. All I know is that, um, something happened. (Pause)

CD: Like, and that...

[Accused]: Yeah, the coppers, the coppers are probably tapping the phone ’cause of fuckin’, ’cause I had the fight with AS.

…

CD: … Yeah, well this fuckin’ copper, this fuckin’ homicide detective’s trying to fuckin’ talk to me. Aimme, I don’t know nothing about it. (Pause)

[Accused]: How can I talk to ya? Fuck.

CD: I’ll just have to ring from the house phone.

[Accused]: I need to speak to ya, like ...

CD: Yeah, well I’m going back home in a minute and I’ll ring you from the house phone.

[Accused]: ’Cause I’m not going down for nothing.

CD: Yeah, well they’ve got your name, they’ve got [AS’s] name, um, and some other bloke.

[Accused]: Well [AS] didn’t do it, I didn’t do it. It was [another person]. And now he’s threatening me, like ...

…

[Accused]: ’Cause they’re trying to, um, get AS ... locked up and make, they’re just making up bullshit for the coppers, trying to get him locked up ’cause they want to get him bashed in gaol

…

[Accused]: I’m scared. I don’t want to go to gaol. … I’m getting followed by detectives and everything. I’m telling ya. Fuckin’ detectives in a work truck.

…

[Accused]: I’m not getting done for nothing I didn’t do.

CD: Yeah, well you’ve just got to tell them the truth! That’s all!

[Accused]: They took us there to smoke bongs. That’s how my prints are on the front door and that. (Pause)

CD: Who took youse there?

[Accused]: Um, [AV].

…

[Accused]: All right, I’m going.

CD: All right. I’ll ring you from the house phone.

[Accused]: No, you have to ring from the ...”

14 September 2016: conversation between the accused and her mother

137. During this conversation, the following exchange occurred:

“[Accused]: Did you hear about the house apparently on Main Street, the old guy. (Speaking to child in background) Apparently they chopped his head off.

CD: Where?”

[Accused]: Main Street.

CD: Where at?

[Accused]: Lithgow.

CD: Yeah?

[Accused]: … I’ve got to carry, carry a knife everywhere I go ‘cause I’m fighting with these two fuckin' retards.”

15 September 2016: conversation between the accused and AS’s mother

138. The accused phoned AS’s mother, AW, at 10:35pm, asking if she knew where AS was. During the conversation, the following exchange occurred:

“[AW]: All right, you said to me the other night someone had done something and they’re going to try and pin it on [AS].

[Accused]: Yeah.

[AW]: What have they done?”

[Accused]: Um, something – they were, that [BZ] was trying to get [AS] like locked up, I don’t know...

[AW]: For what?

[Accused]: For bullshit like, just ringing up saying that he’s bashing me.

[AW]: All right, so it was nothing to do with that bloke in Main Street?

[Accused]: Yeah, nothing. … ‘Cause [AS] was being with me, I’m trying to keep like away from all them gronks.

[AW]: The week before you and [AS] had the fight.

[Accused]: Yeah.

[AW]: Where was [AS] all, all day on the Sunday, Sunday night early Monday morning?

[Accused]: He was at my house asleep.”

139. The conversation continued:

“[Accused]: Yeah, ‘cause [AS] was crying to me last night and today.

[AW]: What was he crying over last night?

[Accused]: Just about court and what them people are saying when they’re pranking him, saying that they’re going to call the coppers and say that he murdered some bloke on Main Street. And I said to [AS] ‘It’s all right, don’t worry, they’re just doing it to try and like scare you’. I said ‘You, you were here with me at my old house. I’m going to back you up’. Like I’m not going to sit here and lie, he was with me.

[AW]: And he didn’t leave your house that night?

[Accused]: Nah.

[AW]: Was he coming down off ice that night?

[Accused]: Um, no he was just asleep all day.

[AW]: What about during the night though, did he get up and go anywhere?

[Accused]: No, ‘cause I, like when he has that, I make sure he doesn’t go out anywhere, like.”

16 September 2016: conversation between the accused and Adam Anderson

140. During a phone conversation the accused told Mr Anderson, who in evidence she said was in Queensland at the time: “Did you know I’m a murderer? … I’m coming to Queensland to hide. No, I’m jokin’. I’m coming to see ya. … I’ll go on the run”.

19 September 2016: conversation between accused and Cheyenne Hinds

141. During a phone conversation between the accused and her sister, who is referred to as CH in the transcript of that conversation, the following exchange occurred:

“CH: … You know you got, you’re getting watched Aimme?

[Accused]: Me?

CH: Yeah. A whole heap ...

[Accused]: Yeah I know.

CH: ... a whole heap of youse.

[Accused]: I know.

CH: I found out some information ...

[Accused]: What?

CH: ...and your phone’s probably (unintelligible)

[Accused]: Yeah my phone’s tapped, I know that. I know the coppers are watching me...

CH: Well I’ve talked it up then ...

[Accused]: ... the dogs are calling me up everywhere I go. I’m onto ’em. (Laughs)”

27 September 2016: video of the execution of a search warrant at the accused’s address

142. During the execution of a search warrant on the accused’s residence, for which she was present, police located the deceased’s Medicare Card next to a proof of age card in the name of the accused. The accused offered that she found it on Main Street “near where the crime scene was”. The following conversation ensued with DS Reay:

“P.1 What crime scene?

[Accused] Um, the old man ... Mick Williams was walkin’ one night, and I was drinkin’. And I was walkin' past there, and he was carryin’ on, I'm gunna kill some cunt, this and that. And then, yeah, I was walkin’ past drunk and I crossed over train tracks. Just near there, I found his Medicare card.

P.1 OK, so you’re talkin’ about the - - - murder investigation that - - - the police have got - - - underway?

[Accused] Yeah.

P.1 All right. Is the - - - information you got in relation to that?

[Accused] No. Only found his Medicare Card walkin’ past there drunk, that's honest truth.

…

[Accused] I found the card as I was walkin’ that night, that Mick Williams was headin’ towards the back of that - - - alleyway. … I was walkin’, he was ahead of me, ’cause he walked past me. And I said, Where’s my 20 bucks. And he’s like this and that, and carryin’ on. And he's like, I’m goin’ to kill some cunt. And then I’m like, Oi, stop it, dickhead. And then he’s like, just kept walkin’ and kickin’ things over, and yeah.”

143. She said that she found the Medicare Card about two months earlier.

144. Ms Sesardic gave evidence that swabs that were taken from the front and back of the Medicare Card yielded a DNA profile that was the same as that for AS.

19 September 2016: conversation between accused and Cheyenne Hinds

145. During a phone conversation with her sister Cheyenne Hinds, referred to in the transcript of the conversation as CH, with AS in the background of the accused’s location, the following exchange occurred:

“[Accused]: Yeah, ’cause they’re lookin’ for me, they’re gunna arrest me, they’ve got a whole heap of paper.

CH: There’s no point you ... goin’ on the run, you’ll just make it worse.

[Accused]: Ohh, I can’t stay here, Cheyenne.

CH: Ammie, they’re gunna get you easy. Where do you think you’re gunna go?

[Accused]: This is – oh, fuckin’, no – soon as I come to Lithgow this guy, John O’Heir, fuckin’ tried to staunch [AS] and then fuckin’ I’ve stepped in ...

CH: Lyndon, Lyndon said that apparently people in Lithgow are gunna bash youse both for killin’ the old man.

[Accused]: (Sighs)

CH: That’s what Lyndon said.

[Accused]: Yeah, ’cause cunts are talkin’ shit.

CH: And apparently you told Sam’s friend Hayley or somethin’ … that you killed the old – um, the old man got it over [AS] so you stabbed him in the face and the eyes and everywhere.

[Accused]: Fuck off!

CH: Well, that’s what they’re tellin’ us.

[Accused]: (Conversation with [AS] in background - Hayley fuckin’ told my cousin that the old man put it over you and... I fuckin’ stabbed him in the face and stabbed his eyes and – the whole world – it’s going around Lithgow that they’re gunna bash me and you ‘cause we killed an old man.

303. There are two parts to this issue of defence of another, and in relation to each of them, the Crown bears the burden of proof. It is not for the accused to prove that she was acting in defence of another, it is for the Crown to prove that she was not, which involves two questions.

304. The first is whether the Crown has proved beyond reasonable doubt that the accused did not believe at the time of the stabbing that it was necessary to do what she did in order to defend AS. If the Crown has discharged that onus, my verdict will be guilty of murder.

305. The second question is whether the Crown has proved beyond reasonable doubt that the stabbing by the accused was not a reasonable response in the circumstances as she perceived them.

306. If the answer to the first question is no, but the answer to the second question is yes, provided that all of the other elements have been proved, my verdict should be not guilty of murder but guilty of manslaughter.

307. If the answers to the first and the second questions are both no, then my verdict will be not guilty of murder and not guilty of manslaughter.

308. In relation to extended joint criminal enterprise, I direct myself as follows.

309. People who agree to commit a crime and go ahead and commit it are all criminally responsible for the crime, regardless of the role they played. They are responsible for their own acts as well as the acts of the others.

310. The agreement need not be formal; it can be quite informal.

311. The fact that people have agreed to commit a crime can be inferred or concluded from the way the crime is committed.

312. Once there is an agreement to commit a crime, it does not matter what role a particular offender plays in carrying it out.

313. This criminal responsibility extends in some circumstances to an additional crime committed by one of the other offenders. In the context of this case, if the stabbing of the deceased with the requisite intention was an action that the accused foresaw AS might do, then the accused would be guilty of the additional offence of murder.

Consideration

319. As noted, the Crown relied on the evidence of AS and the evidence of admissions to establish beyond reasonable doubt that the accused stabbed the deceased.

320. In my view, AS is an unreliable witness for the prosecution as to whether the accused was criminally involved in the offence. By his accounts following his arrest, he repeatedly demonstrated a preparedness to lie about his role in the murder by attributing guilt to persons who he knew to be innocent, but against whom he had a grudge. He claimed to police that members of his own family who he did not like had carried out the murder. When he became aware that the accused had informed police that he was involved in the murder, he wrote to her threatening to “drag her down”. He admitted in Court that he despised her. The conversation between AS and AV on 29 September 2016 is also indicative of a preparedness to suggest that people he knows to be innocent have committed a criminal offence.

321. The Crown submitted that the parts of AS’s evidence that are corroborated can be relied upon, but there is limited evidence that comes within that proviso. His version of events to police in his second ERISP post-dated his receipt of the police brief, so that he could tailor his account accordingly.

322. The alternative basis for the Crown case is of a different character. The most compelling part of the Crown case is the uncontradicted evidence of the accused’s admissions that she went with AS to the deceased’s house and intervened while AS and the deceased were fighting by stabbing the deceased.

323. As to the admissions alleged to have been made by the accused which she disputes, I find the following. There is a high degree of consistency between the contested and uncontested admissions. I am satisfied beyond reasonable doubt that the evidence of AS’s aunt, BW, as to the admissions made to her by the accused, are reliable. BW’s failing eyesight was a compelling explanation by her as to why she recalled precisely what the accused had said, which included an admission that she had stabbed the deceased in an eye and in his back. I do not find that the absence of a record of her claimed report to Crime Stoppers detracts from the credibility of her evidence.

324. I am not satisfied that Hayley Spittles was truthful in her evidence concerning the assault charge involving the accused, but I am satisfied that she was truthful in her evidence as to what the accused admitted to her on 29 August 2016 and as to the events of that day, in particular, that the accused walked off towards the deceased’s house as they walked to the Cooerwull Public School. I note that Ms Spittles’ evidence that she approached police about the events of that day before the assault incident arose was not disputed by the defence.

325. I am satisfied that AX and BX gave truthful and accurate evidence about the admissions made to them by AS and the accused, although I find AX’s recollection to be more detailed than that of BX. Accordingly, I am satisfied that within a few days of the killing, AS told his brother and sister in law that “we” went to the house and that “we” killed him, in other words, that he committed the offence in company. I find their evidence convincing as to the conversation they had with the accused around the kitchen bench the night before her arrest. I note AX’s evidence of the trauma the admissions occasioned to her, for a long time thereafter.

326. It follows from my findings in relation to the reliability of AX and BX that I also find that the accused told them that she tried to decapitate the deceased and cut through bone, which was not true.

327. As to the places on the deceased’s body where the accused claimed to have stabbed him, she claimed to BW that she stabbed him in his back and to a number of people that she stabbed him in one of his eyes. There is forensic corroboration of a stab wound to the deceased’s back, which penetrated his left lung. The forensic evidence is neutral as to whether the deceased had suffered a knife wound to an eye, because by the time his body was discovered by police, the eyes and conjunctivae had disappeared. As I understand Dr Vuletic’s evidence, the skin around the eye sockets had tightened due to the process of mummification, so that if there had been a knife injury to an eye that involved an incision to the socket skin, the wound could no longer be seen. For that reason, there was no objective sign of an eye injury, but it could not be ruled out.

328. Taking into account the process of secondary transfer of DNA, the forensic evidence in relation to the gloves and beanie is not determinative of whether they were worn at the time of the killing by the accused, AS or, at different times during that incident, both. There is no DNA evidence that links the knife to either AS or the accused. Its width is consistent with Dr Vuletic’s evidence as to the width of the knife, or knives, that were used in the attack.

329. The defence submitted that the admissions were false. One of the reasons advanced was that some of the admissions are inconsistent with other evidence. In key respects, I find that they are not. The accused expressed concern that she had fingerprints throughout the house, but the defence submitted that this is contradicted by the forensic evidence that none were discovered by police. However, photographs of the interior of the house show it to be in a state of extreme mess, with the floor of each room covered to at least knee-height in what appears to be, in the main, rubbish. The house would have had thousands of surfaces. I could not conclude that the absence of the discovery of the accused’s fingerprints is positive evidence that she could not have been in the premises at the time of the killing or thereafter.

330. In the recorded conversation at Hayley Steet on 7 September, the accused referred to leaving her face mask “in the backyard” and later in the same recording, “out the back”. I do not think those descriptions are necessarily inconsistent with the beanie being located in a backyard off the laneway that was to the rear of the deceased’s house.

331. The defence submitted that the fact that, prior to AS’s arrest, he repeatedly referred to himself acting alone when he went to the Main Street house and killed the deceased, is evidence that raises a reasonable possibility that the accused’s admissions that she was with him and also stabbed the deceased, are untrue. The defence particularly relies upon the evidence of AY as to what AS said immediately after the killing.

332. I find that AY’s evidence as to the events of the evening of 7 August 2016, including the terms of the conversation with AS and the observations of his behaviour when he returned, is reliable. It follows that I am satisfied that AS told her, at least by implication, that he was alone when he stabbed the deceased. I draw from her evidence an inference that the killing occurred between approximately 7pm and 8pm on that date. Based on AY’s observations, I find that AS was distressed in the immediate aftermath of the incident.

333. However, having regard to all the evidence, I am not persuaded by AY’s account that AS was so distressed that it can be safely inferred that he was being truthful in implying that he acted alone. I do not find it surprising that, if AS was accompanied by the accused, in the immediate aftermath of the killing he would not mention that fact to his cousin but would reveal it to a closer relative, that is, his brother BX and his partner AX, that he was with someone at the time.

334. In any event, there is evidence of AS admitting to Sean Drury that “the chick he was with”, was involved in the killing. There is also the evidence of the accused, in AS’s presence, admitting to others that she was involved and AS not contradicting her, for example, in the recorded conversation in Hayley Street on 7 September 2016, and BW’s evidence as to the accused admitting, while AS sat alongside her, that she stabbed the deceased. Accordingly, I do not find that there is a reasonable possibility arising from AS’s claims from time to time that he acted alone, that the accused’s admissions were unreliable.

335. A desire by AS to take complete responsibility for the killing because of his devotion to the accused in the pre-arrest phase explains why he would admit to acts that the accused also admits to, such as stabbing the deceased in an eye and finding a Subway brand bag containing a large sum of cash under a mattress in the house.

336. The accused’s admissions constitute evidence that, prima facie, warrants considerable weight. The defence submitted that they were false confessions, that she made because AS asked her to do so. The defence submitted that, although AS assaulted the accused a fortnight into their relationship and she was so concerned about her safety that she called police at least on 15 August 2016 if not also on 13 August 2016 (there being no evidence as to who called police on that earlier occasion), she decided to make a false confession to her sister and acquaintances in Lithgow. On its face, this is illogical and does not accord with my experience of human relationships.

337. The defence advances a number of reasons as to why the accused agreed to take this extraordinary step, which I now consider.

338. I accept the evidence of Ms De Santa Brigida that a person in the position that the accused was in in August 2016, being a person who had suffered childhood abuse and neglect and was experiencing domestic violence as an adult, could be capable of wanting to remain in a violent relationship in the belief that the violent partner somehow loved them, because of their longing for affection. This could also be in spite of fearing the violent partner.

339. Essentially, the accused’s explanation was that she agreed to tell others that she and AS stabbed the deceased because she believed that it would “take the heat” off AS, who she loved. She had never been loved before and if he was arrested and charged with the murder, she would lose him. Her evidence was that the reason that the false confessions that she made to friends would assist AS was because she believed that those people would not report AS to police if it meant that she also would be arrested. I find that explanation unconvincing. The accused had no explanation as to how AS would be assisted by her confessing to people who were not necessarily her friends.

340. Another part of the accused’s explanation was that whenever she made a confession on the phone, AS was nearby to ensure she did so. However, the tone of some of the calls is contrary to the suggestion that any duress was involved. For example, in the phone calls with her sister on 10 September 2016, the accused had a tone that I would describe as light-hearted and relaxed, with frequent giggles or laughs. On only a few of the recorded calls with admissions by the accused is there a reference to AS also being with or near the accused at that time. Some of the admissions made to others that were not recorded and which she does not dispute were made in the absence of AS.

341. In relation to the third and fourth letters written to the accused by AS from prison, although prima facie they appear to assist the accused, I do not find them probative of AS’s actual position in respect of the accused’s guilt or otherwise, because he was aware that his correspondence was being scrutinised by the authorities. A simple example of him lying in his correspondence is his denial of guilt in the first letter.

342. In her evidence, the accused said that before the incident of 13 August 2016 she heard rumours that AS had killed someone. When AS told her on 13 August 2016 that he had killed someone, she “started to believe that it was true”. When she was telling people that she had also stabbed the deceased, she said she did not really know if it was true or not, because of how he was bragging to people. She only decided it was true when police searched her residence, on 27 September 2016, but did not leave him at that point, because by then she was scared of him.

343. I accept that on 15 August 2016, based on what the accused told police and her demeanour on the DVEC, she was genuinely scared of what AS might do to her and to her children. However, she was seeking police assistance in response to that fear. She allowed AS to reside with her from that weekend, in so doing, contravening the terms of the interim ADVO, until the time of their arrest almost two months later. I am satisfied beyond reasonable doubt that if the accused subsequently feared that AS would harm her or her children, she would have contacted police. It is not apparent from the content of the LDs and TIs that the accused feared violence from AS to the point that she was afraid to go to police.

344. The defence submitted that the accused believed that if she alerted police to AS’s confession of murder to her, she would lose her children. I find that submission has some force, particularly in the context of the psychologist’s evidence. I take that into account in considering whether I am satisfied that the Crown has proved its case. I also accept the psychologist’s evidence to the effect that the accused’s vulnerability at the time could explain why she would engage in the protection of AS when it would otherwise appear unwise, immoral or illogical to do so. However, taking that into account, I nevertheless find the accused’s explanations as to why she falsely confessed to her sister in particular, and to others generally, so unconvincing and contrary to logic that I find there is no reasonable possibility that her admission that she stabbed the deceased is untrue.

345. I am satisfied that the recorded conversation at the accused’s home on 7 September 2016 clearly establishes that, as of that date, she believed that there had been a killing in the house that police had taped off and she was afraid that she would be implicated by the “face mask” and her fingerprints.

346. I am satisfied beyond reasonable doubt that the accused visited the Main Street house on one or more occasions after the killing. I note the evidence of Val Wright that he gave the accused a tattoo on her hand about a week before 7 September 2016, and the accused saying on 7 September 2016 that she did not wear gloves because of her “new tattoo with gladwrap wrapped around it” and that she had left fingerprints in the house. I also note Hayley Spittles’ evidence as to the accused telling her on 29 August 2016 that she was going into the house, walking in the direction of the house, returning shortly afterwards from that direction and relating what she had seen and done in the house. I draw an inference from all those aspects of the evidence that the accused went into the house after receiving the tattoo and before 7 September 2016. I note that, although the accused denied she had been in the house at all other than knocking on the front door, my finding that the accused visited the Main Street house after the killing does not implicate her in the killing itself.

347. The accused told police in the DVEC made on 13 August 2016 that she and AS had been in a relationship for three weeks. In her ERISP, after being told that police believed that the killing occurred on 7 August 2016, she said that they had been together since “probably the second week of August”. In her evidence, she said their relationship commenced within days of returning to Lithgow from Sydney on 21 July 2016. I find that the accused deliberately lied in her ERISP as to when her relationship with AS commenced, in order to temporally distance herself from the killing.

348. Taking into account the accused’s multiple admissions that she stabbed the deceased and the specific matters I have mentioned, I am satisfied beyond reasonable doubt that the accused was telling the truth when she admitted to others that she stabbed the deceased, including her specific admissions that she stabbed him to the eye and in his back. It follows that I am satisfied that the accused was present with AS at the deceased’s house on the evening of 7 August 2016 and that she stabbed the deceased.

349. Having regard to the evidence that the stab wound to the deceased’s back penetrated his left lung and the stab wound to the eye, I am satisfied that when she stabbed the deceased she did so deliberately and intended by those acts to at least cause him really serious bodily injury. The fact that the accused did not seek medical attention for the deceased, but rather left him alone in his house with serious wounds is, in my view, evidence of consistency of an intention by the accused at the time of the stabbing to kill the deceased.

350. I am satisfied beyond reasonable doubt that the cause of death was the loss of blood due to multiple stab and incised wounds inflicted by the accused and AS. I find beyond reasonable doubt that the wounds inflicted by the accused substantially contributed to the death of the deceased.

351. I am conscious that the manner in which I have explained my reasoning, by examining whether the evidence that founds the defence’s submissions detracts from the evidence of the accused’s admissions to a point that a reasonable doubt is established as to their reliability, may suggest that I have lost sight of the fact that the onus rests on the Crown at all times to prove its case. That is not so. Rather, the accused’s admissions by themselves, many of which are conceded, are prima facie evidence of her guilt. It is therefore unavoidable that in the process of considering their reliability, in particular in determining whether they were knowingly false admissions, that a starting point of the accused being guilty would be suggested, which is not the starting position that I have adopted.

352. In relation to the defence of another, I find that there is evidence that merits consideration of that defence. The accused is alleged to have said to others that she stabbed the deceased because he was getting the better of AS in a fight. I accept that the accused did say as much.

319. However, whereas AS was armed and stabbed the deceased, there is no evidence that the deceased was also armed. Secondly, there is no evidence that AS sought to end his fight with the deceased by simply concluding his illegal trespass and departing from the deceased’s residence. I infer that the time that the accused intervened in the fight by stabbing the deceased, she was aware of both those matters. I am satisfied on the evidence that, in those circumstances, the Crown has proved that it was not necessary to do what she did in order to defend AS.

320. Accordingly, there is no need to consider the Crown’s alternative basis of advancing its case, of extended joint criminal enterprise.

321. For the sake of completeness, I note that both the accused and AS claimed that the other took steps for them to be bashed by fellow prisoners whilst they were in prison on remand. I do not consider that evidence to be probative in either the Crown or defence cases, and I have not summarised it. I ignore that evidence.

322. In relation to the count of murder in the indictment, I find the accused guilty.

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Endnote

Amendments

07 February 2023 - Typographical error corrected in [349]

12 May 2023 - Addition of number to case name

Decision last updated: 12 May 2023