R v Droudis (No 14)

[2016] NSWSC 1550

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	R v Droudis (No. 14) [2016] NSWSC 1550
Hearing dates:	22 August 2016 to 5 October 2016
Date of orders:	03 November 2016
Decision date:	03 November 2016
Jurisdiction:	Common Law - Criminal
Before:	Johnson J
Decision:	1. The court finds the Accused guilty of murder. 2. The Accused is convicted of murder.
Catchwords:	CRIMINAL LAW – murder - Judge-alone trial - Accused charged with murder of former wife of Man Haron Monis in April 2013 - victim attacked in stairwell of apartment block and stabbed 18 times before being set on fire by attacker - Accused in close relationship with Monis at the time of killing - Crown case that Accused murdered victim at behest of Monis - Monis wished to obtain custody of two sons from his marriage to victim - Crown has proved beyond reasonable doubt that Monis planned murder and put it into effect - Monis contrived to give himself watertight alibi - Crown has proved beyond reasonable doubt that killer was a woman - circumstantial case against Accused - Accused relies on alibi - whether Crown has proved beyond reasonable doubt that Accused was killer - evidence of alibi witnesses rejected - unusual relationship between Accused and Monis - Accused displayed tendency to act in different ways to please Monis and espouse his views - Monis and Accused seeking in April 2013 to set up family unit including Monis’ sons and Accused’s daughter - Accused had motive, means and opportunity to murder victim - eye witness to killing described person of similar appearance and size as Accused - female killer wearing a hijab at time of attack - hypothesis excluded that murder was paid killing by bikie gang - hypotheses excluded that murder carried out by another female associate of Monis - found that only rational inference was that Accused committed murder - finding beyond reasonable doubt that Accused committed murder - verdict of guilty of murder
Legislation Cited:	Children (Criminal Proceedings) Act 1987 Court Suppression and Non-publication Orders Act 2010 Crimes (Domestic and Personal Violence) Act 2007 Crimes (Forensic Procedures) Act 2000 Criminal Procedure Act 1986 Evidence Act 1995 Criminal Code 1995 (Cth)
Cases Cited:	Alexander v The Queen [1981] HCA 17; 145 CLR 395 Bulejcik v The Queen [1996] HCA 50; 185 CLR 375 El Hassan v R [2007] NSWCCA 148 Festa v The Queen [2001] HCA 72; 208 CLR 593 Filippou v The Queen [2015] HCA 29; 256 CLR 47 Lane v R [2013] NSWCCA 317; 241 A Crim R 321 R v Droudis (No. 3) [2016] NSWSC 1553 R v Droudis (No. 4) [2016] NSWSC 1150 R v Droudis (No. 5) [2016] NSWSC 1211 R v Droudis (No. 6) [2016] NSWSC 1263 R v Droudis (No. 7) [2016] NSWSC 1274 R v Droudis (No. 11) [2016] NSWSC 1319 R v Droudis (No. 12) [2016] NSWSC 1330 R v Droudis (No. 13) [2016] NSWSC 1350 R v Simmons (No. 7) [2015] NSWSC 574 Shepherd v The Queen [1990] HCA 56; 170 CLR 573 The Queen v Hillier [2007] HCA 13; 228 CLR 618 The Queen v Baden-Clay [2016] HCA 35; 90 ALJR 1013
Texts Cited:	---
Category:	Principal judgment
Parties:	Regina (Crown) Amirah Droudis (Accused)
Representation:	Counsel: Mr M Tedeschi QC; Mr DT Scully (Crown) Mr MJ Ierace SC; Mr RJ Wilson (Accused)   Solicitors: Office of the Director of Public Prosecutions (Crown) Legal Aid NSW (Accused)
File Number(s):	2013/345405
Publication restriction:	---

JUDGMENT

1. JOHNSON J: The Accused, Amirah Droudis, is charged that, on 21 April 2013, at Werrington, she murdered a 30-year old woman, about whom more will be said shortly.

2. The Accused pleaded not guilty to the charge and her trial commenced on 22 August 2016. The trial proceeded as a Judge-alone trial as both the Accused and the Crown agreed to the trial proceeding without a jury: s.132(2) Criminal Procedure Act 1986.

3. The deceased was the former wife of Man Haron Monis (“Monis”). As mentioned, she was 30 years old at the time of her death. She and Monis married in 2003 and there are two young sons of their marriage.

4. It is the Crown case that Monis planned the murder of his former wife and then put the plan into effect with his then partner, the Accused, carrying out the fatal attack.

5. It is common knowledge that Monis died in the early hours of Tuesday, 16 December 2014 in the Lindt Café, Martin Place, Sydney. It is, of course, not the function of this criminal trial to consider the events at the Lindt Café on 15 and 16 December 2014. That is the task of the State Coroner presiding at an inquest.

6. What may be said, however, is that if Monis was still alive, he would be seated next to the Accused in the dock facing trial for his alleged involvement in the murder of his former wife. Monis had been charged in November 2013 with being an accessory before and after the fact to the murder.

Identification of Persons in Judgment

7. I will not identify the deceased in this judgment as to do so is likely to identify the two children: s.15A Children (Criminal Proceedings) Act 1987. For the same reason, I will not identify the names of the parents of the deceased. Non-publication orders were made under the Court Suppression and Non-publication Orders Act 2010 prohibiting publication of the names of the deceased and her parents.

8. These steps were taken by the Court to give effect to the statutory protection to which the children are entitled under s.15A Children (Criminal Proceedings) Act 1987, and so as to maximise the prospect that the children can lead normal lives not linked to the circumstances in which their mother died. As will be seen, the desire to have custody of these two boys lies at the heart of this murder trial. However, it is important that the boys’ mother, as the victim of this crime, not be deprived of human identity. I will refer to her as Helen Lee which, of course, is not her real name.

Issues in the Trial

9. Helen Lee was attacked in the stairwell of an apartment block at 14-20 Parkes Road, Werrington in the late afternoon of 21 April 2013. Her attacker inflicted 18 stab wounds to her upper back, right anterior chest wall and her right and left arms. Her attacker then doused Helen Lee with petrol and set her alight using matches. The forensic evidence establishes that Helen Lee was already dead from the knife wounds before being set alight.

10. The Crown submitted, and the defence accepted, that there was overwhelming evidence that Monis planned and put into effect the murder of his former wife.

11. The Crown submitted, and the defence accepted, that the evidence demonstrated clearly that the killer was a female and that the killer intended to kill Helen Lee.

12. The central issue in the trial is whether the Crown has proved beyond reasonable doubt that the killer was the Accused.

The Conduct of the Trial

13. The trial was conducted in a most efficient way by the legal representatives for the parties.

14. A substantial volume of documentary, photographic, video and audio evidence was tendered at the trial. The parties limited the witnesses called to those who were essential to the determination of the issues in the trial.

15. The factual narrative contained in this judgment is almost entirely undisputed. The question to be addressed is what conclusions should be reached by reference to this evidence, taken with the oral evidence of witnesses called at the trial.

16. The testimony of witnesses whose evidence came under challenge in the trial will be considered expressly in this judgment.

Structure of Judgment

17. This judgment will be divided broadly into three parts:

1. Principles of law and legal directions and warnings which the Court should apply in the circumstances of the trial;

2. consideration of the question whether the Crown has proved beyond reasonable doubt that Monis planned and put into effect the murder of Helen Lee;

3. consideration of whether the Crown has proved beyond reasonable doubt that the Accused attacked and killed Helen Lee.

Principles of Law, Directions and Warnings

18. Section 133(2) Criminal Procedure Act 1986 requires the Court to state the principles of law to be applied, as well as findings of fact which are made. Section 133(3) states that where the law requires a warning to be given to a jury, the Court must take the warning into account in dealing with the matter. I will approach these statutory obligations in accordance with statements made in Filippou v The Queen [2015] HCA 29; 256 CLR 47 at 52 [6], 66-67 [52].

The Crime of Murder

19. In order to prove the charge of murder, it is necessary for the Crown to prove beyond reasonable doubt:

1. that Helen Lee is in fact deceased;

2. that the Accused did an intentional act that caused Helen Lee’s death;

3. that the Accused did that act with an intention to kill or with an intention (at least) to inflict grievous bodily harm (really serious injury).

20. The trial was conducted by the parties upon the basis that the irresistible inference to be drawn from the ferocity of the knife attack, followed by the setting alight of the victim, was that the attacker intended to kill Helen Lee. This is an accurate and realistic approach in this trial. The only reasonable inference to be drawn is that the attacker intended to kill Helen Lee.

21. The critical element in issue is whether the Crown has proved that the Accused did the acts which caused Helen Lee’s death.

22. None of the relevant defences or partial defences (such as self-defence, provocation or substantial impairment) have been raised in this case. It has not been submitted that there is any basis upon which the Court could find the Accused not guilty of murder but guilty of manslaughter. Nor does such a scenario arise in this trial so that the Court should address that topic, although it was not raised by the parties.

Presumption of Innocence

23. The starting point in the trial is that the Accused is entitled to the presumption of innocence. She is not required to prove her innocence. The Accused is presumed to be innocent of the crime charged unless the evidence led in the trial satisfies me to the appropriate standard that she is guilty of murder.

Onus and Standard of Proof

24. The prosecution bears the onus of proof, from the beginning to the end of the trial, to establish the guilt of the Accused. The Accused bears no onus and is not required to prove anything in the trial.

25. The standard of proof is beyond reasonable doubt. Those words have their ordinary English meaning. It is not enough for the Crown to show suspicion of guilt or to demonstrate that the Accused is probably guilty.

26. The matters that the Crown needs to establish beyond reasonable doubt are the essential elements of the offence. In the circumstances of this trial, the critical question is whether the Crown has proved beyond reasonable doubt that the Accused was the killer.

27. However, the Crown is not required to prove the truth and reliability of every disputed fact nor to answer every question that might be posed concerning the evidence in the case.

A Dispassionate Approach

28. It is necessary to consider the evidence in the trial impartially and dispassionately. The Court must not let sympathy or emotion affect its judgment.

29. Certain evidence was admitted in this trial which emphasises the need for the Court to proceed without emotion in its assessment of the evidence. This was evidence of certain activities of the Accused which was admitted for both tendency and non-tendency purposes: R v Droudis (No. 13) [2016] NSWSC 1350. In that judgment, I observed at various points that it was necessary to consider the evidence without emotion, with the reasons to be provided by the Court in giving its verdict to demonstrate that approach: R v Droudis (No. 13) at [92], [173] and [178].

30. In the same manner as required of a jury, I will approach the assessment of evidence in this trial in a dispassionate manner and without emotion or sympathy and without any element of prejudice. I will keep this direction in mind particularly when considering the evidence of prior conduct of the Accused relied upon by the Crown for tendency and non-tendency purposes, in accordance with the rulings in R v Droudis (No. 13).

Inferences and Circumstantial Evidence

31. There is no direct evidence that the Accused killed Helen Lee. The Crown seeks to demonstrate that the Accused killed Helen Lee by inference from the primary facts it contends it has proven.

32. The Crown case is circumstantial. This means that the Crown must first demonstrate that the inference or conclusion that it was the Accused who killed Helen Lee is a reasonable one to draw from the facts established by the evidence. The Crown must then prove that the only reasonable inference or conclusion that can be drawn from the consideration of all the established facts, viewed as a whole, is that it was the Accused who killed Helen Lee.

33. If there is any other reasonable inference or conclusion open on the facts that is inconsistent with that conclusion, then the Crown’s circumstantial case fails and the Accused should be acquitted.

34. In assessing the Crown’s case, I must consider all of the circumstances established by the evidence, and weigh them up in deciding whether there is an inference consistent with innocence reasonably open on the evidence: The Queen v Hillier [2007] HCA 13; 228 CLR 618 at 637 [46]. A circumstantial case is not to be considered in a piecemeal fashion: The Queen v Hillier at 638 [48].

35. The Crown submits that in this case, there are only two indispensable facts or circumstances that the Crown must prove as part of its circumstantial case:

1. that Monis planned and put into effect the murder;

2. that the attacker was a woman.

36. I accept the Crown submission that these are the only two indispensable facts or circumstances which form part of the Crown’s circumstantial case. To this limited extent, the Crown case is a “link in the chain” case. These intermediate facts or circumstances are so crucial to the process of reasoning that each must be established beyond reasonable doubt: Shepherd v The Queen [1990] HCA 56; 170 CLR 573 at 579.

37. I mentioned earlier (at [10]-[11]) that neither party in this trial has submitted that the Court would be other than satisfied beyond reasonable doubt as to these two facts or circumstances. Of course, it remains a matter for the Court, as the tribunal of fact, to determine whether it is so satisfied on the evidence adduced in the trial.

38. Apart from these two indispensable facts or circumstances, the Crown case is otherwise a “strand in the cable” case, so that the individual circumstances relied upon by the Crown need not be established beyond reasonable doubt: Shepherd v The Queen at 579.

39. Circumstantial evidence is not necessarily less reliable than direct evidence. In some cases, it can be more convincing. Clearly, this will depend upon the evidence in the particular trial. In El Hassan v R [2007] NSWCCA 148, Hunt AJA (with the agreement of Latham J and myself) said at [27]:

“27    It has been my experience that a circumstantial case can in some cases produce almost conclusive evidence of the accused's guilt. Circumstantial evidence does not usually depend to any great extent on the evidence of witnesses who could be either mistaken or maliciously false in their testimony: Regina v Cable (1947) 47 SR 183 at 184. Those cases I have in mind have all been of the ‘strands in the cable’ variety of circumstantial evidence case (see par [19] supra). It is a matter of common sense that the more strands in the cable, the stronger the cable is. The more circumstances pointing to the guilt of the accused, the less likely it is that there could be any reasonable explanation for those circumstances other than the guilt of the accused, and thus the stronger is the circumstantial case against him. As McHugh J pointed out in Shepherd v The Queen (at 582):

‘There are many cases where the probability of the correctness of an inference of guilt drawn from the circumstances of the case is greater than the probability of the truth of any of the individual circumstances. As Lord Simon of Glaisdale pointed out in Regina v Kilbourne [1973] AC 729 at 758:

‘Circumstantial evidence [...] works by cumulatively, in geometrical progression,

eliminating other

possibilities’.”

40. It is appropriate to keep in mind, in approaching a circumstantial evidence case, what was said by the High Court of Australia (French CJ, Kiefel, Bell, Keane and Gordon JJ) in The Queen v Baden-Clay [2016] HCA 35; 90 ALJR 1013 at 1020-1021 [46]-[47] (footnotes omitted):

“46.   The prosecution case against the respondent was circumstantial. The principles concerning cases that turn upon circumstantial evidence are well settled. In Barca v The Queen, Gibbs, Stephen and Mason JJ said:

‘When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are 'such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused': Peacock v The King. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be 'the only rational inference that the circumstances would enable them to draw': Plomp v The Queen; see also Thomas v The Queen.’

47.   For an inference to be reasonable, it ‘must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence’ (emphasis added). Further, ‘in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence’ (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal.”

41. The distinction between drawing an inference from proven facts and engaging in speculation was emphasised in Lane v R [2013] NSWCCA 317; 241 A Crim R 321 at 348 [109]-[110] (Bathurst CJ, Simpson and Adamson JJ):

“109   The answer to that question lies in the distinction, which is a very real one, between inference and speculation. In Seltsam Pty Ltd v McGuiness; James Hardie & Coy Pty Ltd v McGuiness [2000] NSWCA 29; 49 NSWLR 262, Spigelman CJ considered this very question. He acknowledged that it is often difficult to distinguish between permissible inference and conjecture. Quoting from Jones v Great Western Railway Co (1930) 144 LT 194, his Honour adopted a definition of inference as ‘a deduction from the evidence’ which, if reasonable, may have the validity of legal proof.

110   He referred also to Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152, quoting as follows:

‘Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.’

Spigelman CJ stated the test as:

‘... whether, on the basis of the primary facts, it is reasonable to draw the inference.’

To similar effect were observations of Gibbs, Stephen and Mason JJ in Barca v The Queen [1975] HCA 42; 133 CLR 82 at 104-105.”

Consciousness of Guilt

42. The Crown relies upon two areas of evidence as demonstrating consciousness of guilt on the part of the Accused:

1. conversations between the Accused and Monis which included discussions concerning possible explanations for the presence of the Accused’s blood, hair or DNA at the crime scene: R v Droudis (No. 11) [2016] NSWSC 1319;

1. conversations which were said to involve the creation of a false alibi.

43. Evidence of consciousness of guilt is not capable of establishing guilt by itself. It is tendered effectively as corroborative evidence.

44. Post-offence conduct may be capable of constituting evidence of consciousness of guilt in different ways. This may arise from lies told by an accused person or from other conduct such as flight, destruction of evidence or creation of a false account.

45. Here, the Crown says that the Accused acted and spoke, in these two areas, in a manner which involved lies and the preparedness to tell lies about topics which were central to her guilt of the murder of Helen Lee.

46. Before using evidence in these two categories as evidence corroborating the guilt of the Accused, I must be satisfied of two things:

1. that the statements of the Accused amounted to a lie or lies concerning an issue relevant to the charge of murder;

2. that the only reasonable explanation for the Accused having made the statement or statements in question was that she was aware that she was guilty of the murder of Helen Lee.

47. I should exercise caution in using evidence of consciousness of guilt because it is often difficult to know how or why an innocent person may act in particular circumstances, and it is necessary to consider any other possible explanation for the statements of the Accused which are said to be motivated by a consciousness of guilt.

Use of Evidence for Tendency Purposes

48. I have allowed certain evidence to be used for tendency purposes in the trial: R v Droudis (No. 13) at [35]-[38], [121]-[168], [175]-[180].

49. The material which has been admitted for tendency purposes (and non-tendency purposes) is in evidence at the trial because the Crown says that there is a pattern of behaviour that reveals that the Accused had a tendency to act in ways at the behest of Monis, including engagement in socially and morally reprehensible acts. The Crown argues that the suggested tendency of the Accused to act in these ways bears significantly upon the question whether the Accused acted in a reprehensible way, at the behest of Monis, by killing Helen Lee.

50. The evidence suggesting that the Accused had that tendency can only be used, in the way the Crown seeks that it be used, to make two findings beyond reasonable doubt. The first finding is a conclusion beyond reasonable doubt that one or more of those acts occurred. In this case, there is no dispute that the Accused acted in the various ways relied upon by the Crown as tendency evidence.

51. Accordingly, the second aspect is of particular significance. It is necessary for the Court to ask whether, from the act or acts that are proved, the Court can conclude beyond reasonable doubt that the Accused had the tendency that the Crown alleges. If the Court cannot draw that conclusion beyond reasonable doubt, it must put aside any suggestion that the Accused had the tendency alleged.

52. If the Court is satisfied beyond reasonable doubt that the Accused committed the acts relied upon as tendency evidence, and is likewise satisfied that the Accused had the tendency to act in a particular way and to have a particular state of mind as alleged by the Crown, the Court may use the fact of that tendency or state of mind in considering whether the Accused committed the offence charged.

53. It is necessary to keep in mind that this is just one part of the evidence relied upon by the Crown, and it ought be given such weight as the Court considers it deserves in the context of the evidence admitted at the trial.

54. The evidence of other acts must not be used in an impermissible way. It would be completely wrong to reason that, because the Accused had committed a crime or other acts of misconduct, she is therefore generally a person of bad character and for that reason must have committed the offence charged. The Accused cannot be punished for other conduct attributed to her by finding her guilty of the charge of murder contained in the indictment. That is not the purpose of the evidence being placed before the Court and reasoning of this type is not permissible.

55. The Court cannot use the evidence for tendency purposes, unless the Court accepts the Crown’s argument that it discloses a tendency, and therefore makes it more likely that the Accused committed the offence charged against her.

56. The evidence led by the Crown to prove that the Accused had a tendency to act in a particular way, and to have a particular state of mind, is separate from the particular allegation in the indictment. The Court must not substitute the evidence led by the Crown to prove that the Accused had that tendency for the specific allegation of murder contained in the indictment. The Court is concerned with the particular and precise occasion alleged in the charge.

57. In considering the evidence admitted for tendency (and non-tendency) purposes in R v Droudis (No. 13), particular care is needed to ensure that the evidence is confined to its proper role and given appropriate weight only, given the portions of the evidence which indicate criminal or improper conduct on the part of the Accused on other occasions.

58. In addition, care is required to guard against an emotional response to the evidence (see [28]-[30] above).

Accused Not Giving Evidence

59. The Accused did not give evidence in response to the Crown case. The Accused was entitled to give evidence, but was under no obligation to do so. The onus lies upon the Crown from first to last in the trial. The Accused is entitled to say nothing if she so chooses.

60. The Accused’s decision not to give evidence cannot be used against her in any way during the course of the Court’s deliberations. No inference may be drawn adverse to the Accused in this respect. The decision of the Accused not to give evidence cannot be used to fill any gaps that might be thought to exist in the evidence tendered by the Crown, nor can it be used in any way as strengthening the Crown case or in assisting the Crown to prove its case beyond reasonable doubt.

61. The Court must not speculate about what might have been said in evidence if the Accused had given evidence at the trial.

Alibi

62. The solicitor for the Accused filed a notice of alibi on 20 June 2016 which stated that the Accused was at her parents’ address at Belmore at the time of the killing (Exhibit DB).

63. The Accused has called witnesses intended to show that, at the time of the offence on 21 April 2013, she was somewhere else (at Belmore) and therefore could not have committed the offence (at Werrington).

64. When an accused person puts forward an alibi, the burden of proving the Accused’s guilt continues to rest on the Crown. If the Crown fails to satisfy the Court beyond reasonable doubt that the alibi evidence should be rejected, then the Accused should be acquitted. The Crown must disprove the alibi.

65. The Crown must establish beyond reasonable doubt that the Accused was at the apartment block at 14-20 Parkes Avenue, Werrington at about 4.25 pm on 21 April 2013. The Crown cannot do so if there is a reasonable possibility that the Accused was at Belmore at that time, as asserted by the alibi notice. The Crown must therefore remove or eliminate any reasonable possibility that the Accused was at Belmore at the relevant time, and also persuade the Court beyond reasonable doubt that, on the evidence on which the Crown relies, the Accused was at the Werrington apartment block at that time. If the Crown fails to remove or eliminate any reasonable possibility, the Accused should be acquitted.

66. If the Crown satisfies the Court beyond reasonable doubt that the alibi evidence should be rejected, it does not follow that the Court would necessarily convict the Accused. In other words, it must not be assumed that because the alibi fails that the Accused is guilty. The Court must still be satisfied beyond reasonable doubt, upon the evidence as a whole, that the Crown has made out its case against the Accused before a guilty verdict can be returned.

Expert Evidence

67. In this trial, Ms Sandra Trabuio was called as an expert witness in the Crown case. In addition, a report of Dr Mark Perlin was tendered, without objection, in the Accused’s case.

68. An expert witness is a person who has specialised knowledge based on that person’s training, study or experience. A witness with such specialised knowledge may express an opinion on matters within his or her particular area of expertise. In this case, both Ms Trabuio and Dr Perlin gave expert oral or written evidence on matters concerning DNA analysis and associated matters.

69. The value of an expert opinion is very much dependent on 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.

70. The expert evidence before the Court in this trial was adduced to assist in determining the question whether the presence or absence of the Accused’s DNA on a partly burnt match stick found at the crime scene was a neutral factor in the trial or, as argued for the Accused, it pointed towards the attacker being someone other than the Accused.

71. In this case, there is no conflict between the evidence of the two witnesses. The evidence of Ms Trabuio and Dr Perlin has not been challenged and is not inherently unbelievable. The issue for consideration is what conclusions ought be reached, by reference to their evidence, concerning the absence of the Accused’s DNA on the partly burnt match stick.

72. It remains a matter for the Court to consider the expert evidence, in the context of all of the evidence adduced in the trial for the purpose of reaching a conclusion as to the significance of the evidence in the trial.

View of the Werrington Premises

73. A joint application was made by the parties for the Court to undertake a view of the premises at 14-20 Parkes Avenue, Werrington and this occurred on 18 August 2016, shortly before the commencement of the trial. The transcript of the view was tendered at the trial (Exhibit B).

74. The view of the Werrington premises, and its surrounds, assisted the Court to understand the evidence. The observations made by the Court on the view are to be taken into account as part of the overall evidence upon which the Court will decide whether the Crown has proved the guilt of the Accused beyond reasonable doubt.

Direction Concerning Evidence of Sonia Conciatore

75. During the trial, the Court admitted certain evidence of Sonia Conciatore concerning statements made to her by her close friend, Helen Lee, about the Accused and Monis: R v Droudis (No. 7) [2016] NSWSC 1274.

76. The effect of the ruling in R v Droudis (No. 7) was that, for the purpose of s.65(2) Evidence Act 1995, the hearsay rule did not apply to a particular representation arising from the evidence of Ms Conciatore. The effect of that ruling was that Ms Conciatore was permitted to give evidence concerning what Helen Lee had said to her about an incident about two weeks before 21 April 2013, where there was said to have been an argument between the Accused and Helen Lee about Helen Lee’s sons, with the Accused allegedly saying that she wanted the boys to live with Monis.

77. In approaching the use to be made of the evidence of Ms Conciatore concerning what Helen Lee had said to her, it is appropriate to keep in mind that the Accused has had no opportunity to test the evidence, in the sense that the account given by Helen Lee to Ms Conciatore cannot be meaningfully tested. In these circumstances, the Court should proceed with caution in considering the evidence of what had been said in assessing the reliability of that evidence.

Use of Photographic Identification Procedures

78. As will be seen, there is no evidence in this trial from persons who were present at the scene of the crime which identifies the Accused as the attacker. There is evidence from a number of persons of the use of photographic identification procedures, in which persons were selected with varying degrees of certainty by the witnesses.

79. The Crown submitted that there was no need for an identification warning in these circumstances as there had been no positive identification evidence and Senior Counsel for the Accused agreed with this approach (T1029).

80. I accept the approach advanced by the parties, but would make a number of observations concerning identification of this type, which I will keep in mind when assessing that evidence later in this judgment.

81. Each witness was shown (head and shoulders) photographs of 20 females by means of either computer display or hard-copy display.

82. As Stephen J observed in Alexander v The Queen [1981] HCA 17; 145 CLR 395 at 409, the accuracy of any identification of a stranger, seen only once, is likely to be affected by the fallibility of human perception and memory. His Honour noted that, when identification is attempted with the aid of photographs, there are introduced peculiar difficulties due to the various ways in which photographic representations differ from nature, including their two dimensional and static quality.

83. In Festa v The Queen [2001] HCA 72; 208 CLR 593, Kirby J at 639 [154] observed that an identification parade is a preferable means of attempted identification as it “affords a wider range of identifying factors and a more natural circumstance for perceiving the entire person of the suspect rather than head and shoulders photographs”.

84. In the context of voice identification, in Bulejcik v The Queen [1996] HCA 50; 185 CLR 375, McHugh and Gummow JJ observed at 406 [20] that “Identification evidence is often unreliable evidence because human perception and recollection are prone to error”. Their Honours observed at 406 [21]:

“The capacities of individuals to remember sights and sounds vary enormously. Some persons may remember sounds that others do not, just as some persons may recollect physical features when others who were present cannot recollect them. Moreover, individuals who witness or are involved in criminal incidents react differently. Some remain relatively calm; others are shocked or confused.”

85. It has also been noted that there may be little, or no, correlation between the confidence with which a witness gives evidence of identification and the reliability and accuracy of their evidence: R v Simmons (No. 7) [2015] NSWSC 574 at [29].

86. I will bear these considerations in mind when considering the evidence of photographic identification procedures in this trial.

Has the Crown Proved Beyond Reasonable Doubt that Monis Planned and Put Into Effect the Murder of his Former Wife?

87. As mentioned earlier, the Crown submitted that the Court would readily find beyond reasonable doubt that Monis had planned and put into effect the murder of Helen Lee. Senior Counsel for the Accused accepted that the evidence established that Monis had acted in this way. In making this submission, it was made clear that the defence accepted these matters by reference to the strength of the Crown evidence on these aspects, and not by way of any knowledge or admission on the part of the Accused.

88. It is a matter for the Court, as the tribunal of fact in the trial, to determine whether it is satisfied beyond reasonable doubt that Monis planned and put into effect the murder of Helen Lee. As noted above (at [35]-[36]), this aspect of the Crown case is an indispensable circumstance, the existence of which the Crown must prove beyond reasonable doubt. I have kept in mind, in considering the first question, that there is no one speaking for Monis in this trial and the Court should consider his position carefully by reference to the evidence and the onus and standard of proof.

89. Consideration of this topic will also permit findings to be made as to the nature and extent of the relationship between Monis and the Accused.

Background of Monis

90. The evidence in the trial disclosed some of the history of Monis both before and after he came to Australia.

91. Monis was born Mohammad Hassan Manteghi on 19 May 1964 in Iran (Exhibit C, paragraph 54).

92. Monis came to Australia in about 1996 (T602). He went by a number of names between 1996 and December 2014. For present purposes, it is sufficient to note that he went by the names “Man Haron Monis” (from November 2006 to December 2014) whilst using the first name “Michael” for some purposes, and also the name “Sheikh Haron” from 2007 to about 2010 (Exhibit A, Tab 5).

93. Between about 2000 and 2008, Monis worked as a so-called spiritual healer and clairvoyant, advertising his services in local and community (including ethnic community) newspapers.

94. It is apparent that a number of women met Monis in the course of his spiritual healing business. Several of them had sexual relationships with Monis.

Monis and Helen Lee

95. In early 2003, Helen Lee met Monis after she responded to an advertisement in a community newspaper with respect to his spiritual healing services. In February 2003, they became engaged. In August 2003, Monis and Helen Lee married in a religious ceremony. Sons were born of the marriage in 2004 and 2008.

Monis and the Accused

96. The Accused was born Anastasia Droudis in July 1979 of Greek Orthodox background.

97. It appears that Monis first came into contact with the Accused’s family in about June 2003, when the Accused’s mother, Soula Droudis, made an appointment to see Monis in his spiritual healing business (Exhibit A, Tab 4).

98. Monis and the Accused commenced an intimate relationship by at least 2006, and their relationship continued until 21 April 2013 and beyond (Exhibit C, paragraphs 8-9).

99. As a result of her association with Monis, the Accused converted to Islam and changed her first name from Anastasia to Amirah in July 2008.

100. The Accused has a daughter from an earlier relationship who was born in about 2001. The daughter of the Accused will not be identified in this judgment: s.15A Children (Criminal Proceedings) Act 1987. Also, as a result of the Accused’s relationship with Monis, her daughter converted to Islam as well.

Monis and Female M

101. It was through his work as a spiritual healer and clairvoyant that Monis also met Female M, to whom he became engaged, and who died of natural causes in May 2012. For a period, Monis was maintaining simultaneous relationships with Helen Lee, the Accused and Female M (Exhibit C, paragraph 55). More will be said about Female M in the course of the judgment.

Monis as “Sheikh Haron”

102. From late 2007, Monis adopted the persona of “Sheikh Haron” to espouse his religious and political views, which may be fairly described as extremist in nature. He utilised, in this respect, amongst other things, the Sheikh Haron website (Exhibits BB, BC, BD and BE).

103. Monis used a number of women as participants in videos, with extremist content, apparently made for posting on the Sheikh Haron website. Not all videos of this type were actually posted on the website.

104. In 2008-2009, the Accused appeared in 11 videos which had been scripted by Monis (Exhibits BB and BC). The content of these videos was extreme and offensive in nature and sheds considerable light upon the beliefs and attitudes of Monis at that time.

105. The 11 videos recorded by the Accused for the Sheikh Haron website were made in the period April 2008 to December 2008 (Exhibit BB). As noted above, not all the videos were posted to the Sheikh Haron website, but the Accused would have expected, in each case, that the video which she made could be posted publicly on the website and YouTube.

106. In each of these 11 videos, the Accused appeared wearing a black niqab, so that her eyes only were visible. In the course of lengthy presentations, scripted by Monis, the Accused praised Osama Bin Laden, delivered a fatwa against Present-elect Barack Obama for apostasy (abandoning his Muslim faith for Christianity), expressed happiness about the September 2001 terrorist attacks in the United States of America, the Bali bombings in October 2002 and the Holocaust, described the Bali bombers as martyrs, called upon people to join the army of Islam and warned the then Prime Minister, Kevin Rudd, that Australians would be attacked and killed by Muslims. In each of these videos, the Accused is seen reading Monis’ scripts with feeling and passion.

102. Both the contents of the 11 videos and the material posted on the Sheikh Haron website referred to the Accused as “Sister Amirah”, a frequent spokesperson for Monis (Exhibit BD).

103. The Sheikh Haron website referred to the Accused (as “Sister Amirah”) in the following examples:

1. A message posted to YouTube in April 2008 described as:

2. “ANZAC Day, fair or unfair?

3. Message of Sheikh Haron’s website to Australians for ANZAC Day

4. (Delivered by Spokesperson of Website, Sister Amirah)” (Exhibit BD, Annexure G).

5. A message posted to YouTube in May 2008 as follows:

6. “A Sad Story About Violent Rapists and Rape Under Cover

7. Message of Sheikh Haron’s website to President George W Bush (video of Spokesperson of Website, Sister Amirah)” (Exhibit BD, Annexure I).

8. An item promoting the 10th video made by the Accused (Exhibits BB and BC), describing it in the following way:

9. “’I regret to say I am a terrorist. I admit and formally confess that for many years I have been a terrorist but I’ll try not to be anymore!’

10. An Australian Muslim confesses to terrorism on our website for the first time. Sheikh Haron takes full responsibility for all content on this site including the accuracy and authenticity of the confession and the identity of the Australian Muslim who confesses to terrorism here!” (Exhibit BD, Annexure J).

11. An item posted to YouTube as “Sister Amirah speaks about our policy” with the following description:

12. “When you slap me, if I slap you back am I considered as terrorist?

13. Video 1 of Spokesperson of our Website on YouTube” (Exhibit BD, Annexure N).

14. An item posted to YouTube described as “Sister Amirah’s personal video message” with the following content:

15. “I feel sorry for you, but not for him

16. Video of Sister Amirah’s message to Cassandra, dead soldier’s wife” (Exhibit BD, Annexure N).

17. A further item posted to YouTube (Video 5 on Exhibits BB, BC and BE) under the banner “September 11, Bali and Holocaust” with the following content:

18. “Should Muslims be happy about 9/11, Bali and Holocaust?

19. Video of Sister Amirah about Act of God” (Exhibit BD, Annexure O).

20. A message posted to YouTube on 20 June 2008 (Video 6 on Exhibits BB, BC and BE) under the banner “About media mafia” with the following content:

21. “News.com.au shame on you!

22. Sister Amirah’s video about conspiracy by Nationwide News” (Exhibit BD, Annexure O).

23. A message posted to YouTube under the banner “Soldier Amirah’s message for troops” with the following content:

24. “This is the message of the majority of the Australian nation

25. Video of Soldier Sister Amirah” (Exhibit BD, Annexure O).

109. Monis’ thought processes and beliefs were illustrated in this period by a letter dated 12 June 2008 which he sent (under the guise of Sheikh Haron) to then Senator Barack Obama, five months before the 2008 Presidential election. In this letter, Monis castigated Barack Obama for “hiding” his religion, warning him, “You will be apostate by denying your religion” and advising him to choose “the right path” and not “the satanic tactic”, counselling him to “be careful to pass this test of God successfully” (Exhibit BD, Annexure P).

110. On 26 November 2008, the Accused (again dressed in a black niqab) participated in the ninth video in which she referred back to Monis’ letter of 12 June 2008 and stated that “Unfortunately Barack Obama kept denouncing his religion in order to achieve the position”, and stating that Monis’ letter was available on the Sheikh Haron website.

111. The Accused continued, saying “Sheikh Haron has issued a fatwa against Barack Obama”, then reading the terms of the fatwa. The Accused stated that it was “an obligation upon every Muslim who is able to treat Barack Hussein Obama … as an apostate according to Sharia law” to do so and any Muslim who acted in this way “will be rewarded by Allah”. The Accused’s message continued at considerable length, culminating in the following (Exhibit BC, page 21):

“If any Muslim supports this apostate, he or she must await God's punishment. George Bush's danger for Islam is much less than Barack Obama's danger. Apostates and hypocrites are worse. Muslims are religiously responsible for any supporting comment they make for Barack Obama. It is also considered a very big sin. Dear American Muslims, in the next 4 years do your religious duty against Barack Obama. May Allah reward you. Do your Islamic duty against this apostate. May Allah accept your Jihad and place you as a (SPEAKS FOREIGN LANGUAGE) in paradise. Do it, don't doubt about it. Do it, do not miss the opportunity, do your Islamic duty and finish it. Finish it. Finish it. (SPEAKS FOREIGN LANGUAGE).”

112. In the video of this message, the concluding words urging viewers to “Do it” or “Finish it” were accompanied by hand movements by the Accused in the form of stabbing motions (Exhibit BE).

113. This detail is provided to assist an understanding of what Monis was saying and doing in June 2008, and what the Accused was saying and doing on film (at his behest) in November 2008. This illustration provides considerable insight into the dynamics of the relationship between Monis and the Accused at that time, involving her repeatedly participating in very strong video statements written by Monis. There is nothing to suggest that the Accused held beliefs of this type, let alone displayed a willingness to act on them in this way, before she had met and formed a close relationship with Monis.

114. The Accused was not the only female companion of Monis who appeared in his Sheikh Haron videos. An unidentified Chinese woman, also wearing a black niqab, appeared in a video. Female P, described as “Sister Zahra” appeared in one video as did Female M, described as “Sister Fatimah” and Female B, described as “Sister Husna” (Exhibits 25 and 26), with each of them wearing a black niqab. In each case, I accept that the script was prepared by Monis so that the beliefs and thoughts contained in the presentations represented the thought processes of Monis.

115. It should be said that the delivery of female speakers (other than the Accused) in these videos, was flat and indicative of a bare reading of a prepared script.

116. In the case of the Accused, her delivery in the 11 different presentations was far from flat, and was accompanied by feeling and, at times, movement. The Accused’s forceful and dramatic delivery may be contrasted with the flat and expressionless delivery of other women who participated in these videos.

The Channel 7 Protests in June 2008

117. On 16 and 27 June 2008, Monis and the Accused attended outside the Channel 7 premises in Martin Place, Sydney to undertake a protest. Monis had developed a grievance concerning an item on terrorism he had seen on the “Sunrise” program. It is clear from the videos of events on these days (Exhibit BF) that Monis filmed the Accused’s activities on one day and the Accused’s filmed Monis’ activities on the other day. The Accused was wearing a black niqab which covered her face, except for her eyes.

118. The Sheikh Haron website had advertised the fact that a protest was to occur on 16 June 2008, described as “Soldier Sister Amirah’s protest in Sydney” (Exhibit BD, Annexure S). A notice posted on the Sheikh Haron website (no doubt written by Monis) announced the Accused’s protest on 16 June 2008, including the following (Exhibit BD, Annexure S):

“Sister Amirah has decided to have a protest by herself against terrorism in Martin Place, Sydney. We pray for her and ask God to make her successful in her Jihad against oppressors. May God bless her and all people who fight with terrorism.

In the last few months we have received many threats from some racist Aussies. We are hoping that the Australian Government feels responsibility for the protection of Sister Amirah while she is having protest. We don't want any violence like Cronulla happens again. May God make her protest peaceful and no racist try to attack her. Amen.”

119. The Martin Place protests by Monis and the Accused in June 2008 serve to illustrate further the nature and depth of the relationship between them, and the Accused’s willingness to uncritically adopt and espouse Monis’ beliefs.

Monis and the Accused Communicate with Families of Deceased Australian Servicemen and a Deceased Australian Trade Commissioner

120. At about the same time, Monis and the Accused embarked upon a course of conduct where written or face-to-face contact was made with families of deceased Australian servicemen who had been killed in Iraq or Afghanistan. The following description of these activities, between May 2008 and July 2009, is drawn from a Statement of Agreed Facts (Exhibit EE).

121. On or about 4 May 2008, two letters from Monis, in similar terms, were posted to the immediate family of an Australian soldier who had died whilst serving in Afghanistan, Lance Corporal Jason Marks. The letters were posted to his widow, Cassandra Marks, and his father, Paul Marks.

122. On or about 6 May 2008, a further letter from Monis was posted to Cassandra Marks. A copy of this letter was posted on the Sheikh Haron website.

123. In the above letters from Monis to the family of the late Lance Corporal Marks, it was suggested variously that:

1. he had died for nothing;

2. he was analogous to a Nazi soldier following the orders of Hitler; and

3. Australians could not be proud of him.

124. On or about 6 May 2008, the Accused, as Sister Amirah, participated in a video filmed by Monis (fourth video, Exhibits BB, BC and BE). The Accused was wearing a black niqab. In that video, the Accused referred to the 4 May 2008 letter that Sheikh Haron had sent to Cassandra Marks. She then delivered what she described as her own message to Cassandra Marks, which echoed the sentiments expressed in Sheikh Haron’s letter. The Accused, variously, compared Lance Corporal Marks to a Nazi soldier under Hitler, said that she did not feel sorry for him and described him as a murderer. The Accused’s video message to Cassandra Marks was placed on a DVD that was posted to Cassandra Marks. The video was also posted on YouTube and an announcement relating to the video was made on the Sheikh Haron website.

125. On or about 29 November 2008, the Accused, as Sister Amirah, telephoned Madeline Fussell, the mother of an Australian soldier who had recently died whilst serving in Afghanistan, Lieutenant Michael Fussell. The Accused said words to the effect “I am a member of the public, you don’t know me, I would like to send you a card, could I have your address”. Ms Fussell declined to give her address. However, her husband, Kenneth Fussell, was listed in the telephone directory. On or about 3 December 2008, a letter in the name of Sheikh Haron was posted to Kenneth Fussell. The letter was also posted on the Sheikh Haron website under a heading “Letter of Mufti Sheikh Haron to Family of Australian Soldier Killed in Afghanistan, Michael Fussell”. The letter noted that “Sister Amirah” had called and spoken to Mr Fussell’s family.

126. On or about 12 January 2009, the Accused, as Sister Amirah, telephoned the home of Felix Sher and Yvonne Sher, the parents of an Australian soldier who had recently died whilst serving in Afghanistan, Private Gregory Sher. Felix Sher’s nephew, Darren Milner, answered the phone and spoke to the Accused. The Accused said that her name was “Sister Amirah” and she wanted to send a letter of condolence.

127. On or about 22 January 2009, a letter in the name of Sheikh Haron was posted to Mr Sher. The letter was posted on the Sheikh Haron website under a heading “Why should we call pig, a hero?”. The letter noted that Sister Amirah had called to offer condolences.

128. Between about 24 March and 27 March 2009, the Accused, as Sister Amirah, telephoned the South Lake Macquarie RSL Club on four occasions. She tried to obtain the home address of the parents of Corporal Matthew Hopkins, an Australian soldier who had recently died whilst serving in Afghanistan. Following Corporal Hopkins’ death, a media statement was released by the RSL which indicated that Corporal Hopkins was a member of the South Lake Macquarie RSL Club. The RSL Club refused to provide her with these details.

129. On or about 26 March 2009, two copies of a letter in the name of Sheikh Haron were posted to the parents of Corporal Matthew Hopkins, care of the South Lake Macquarie RSL Club. The letter to Corporal Hopkins’ father was also posted on the Sheikh Haron website. The letter and the heading on the website asserted “Matthew Hopkins was a big criminal”.

130. On or about 24 March 2009, the Accused, as Sister Amirah, telephoned Breeanna Till, the widow of Sergeant Brett Till, an Australian soldier who had recently died whilst serving in Afghanistan. The Accused asked when and where Sergeant Till’s funeral was going to be held. Ms Till asked the Accused who she was and the Accused replied “I am just a member of the public who is concerned about what is happening in Afghanistan”. Ms Till advised the Accused of the funeral details as requested. Ms Till described the call she received as “almost scripted” and that the Accused spoke in a “purposeful” way.

131. On or about 27 March 2009, a letter in the name of Sheikh Haron was posted to Ms Kerrie Barclay, the mother-in-law of Sergeant Brett Till. The letter was addressed to Susan and Leigh Staden, the parents of Sergeant Till, with the names of Ms Bree Till, Sergeant Till’s widow, and Ms Kerrie Barclay and her husband, Peter Barclay, included at the bottom of the letter after “cc”. The letter was also posted on the Sheikh Haron website under a heading which included the words “Aren’t you aware that Brett Till was a criminal?”.

132. On or about 29 March 2009, the Accused, as Sister Amirah, phoned Kerrie Barclay. The Accused asked for confirmation that Sergeant Till’s funeral was going to be held at Woronora and Ms Barclay confirmed that it was. Ms Barclay asked the Accused who she was and the Accused replied “I’m an Australian citizen, member of the Australian public”. The Accused said that it was a public funeral and she had a right to be there. Ms Barclay described the Accused in that phone call as sounding “very deliberate with her words, as though she were reading from a script”.

133. On or about 31 March 2009, the Accused, as Sister Amirah, attended the funeral of Sergeant Brett Till dressed in a black niqab. After the service, the Accused approached Breeanna Till and introduced herself as “Sister Amirah” and indicated that she was a representative of Sheikh Haron. The Accused said that she was there to deliver a message and said words to the effect that Ms Till’s husband was a murderer. The Accused was carrying a package which was intercepted by an Army officer before the Accused had the opportunity to hand it to Ms Till. The package contained copies of the 27 March 2009 letter from Sheikh Haron mentioned above.

134. On or about 18 July 2009, the Accused, as Sister Amirah, telephoned Joan Senger, the mother of Craig Senger who was employed as a Trade Commissioner to Austrade stationed in Jakarta. At the time of the Accused’s telephone call, Mr Senger was missing following the terrorist bombing on the JW Marriott Hotel in Jakarta on 17 July 2009. Mr Senger was confirmed dead a short time later. The Accused said “I hope they find your son and I hope that he is safe”. Ms Senger asked who she was and the Accused identified herself as “Amirah”.

135. Ms Senger described the telephone call as having been strange on account of there being no emotion in the voice of the Accused and that it “seemed like she was reading from a script”. Further, Ms Senger stated that there was a gap between her saying something and the Accused replying, similar to an overseas call.

136. On or about 21 July 2009, a letter in the name of Sheikh Heron was posted to Ms Senger. The letter referred to the telephone call on 18 July 2009 from Sister Amirah and noted that Craig Senger was now dead. The letter was also posted on the Sheikh Haron website. The letter suggests that the victims of the attack (including Mr Senger) were responsible, saying that every citizen of Australia was to blame for the JW Marriott Hotel attack by remaining silent in the face of oppression by the Australian government. The letter concluded by saying “We should condemn the Australian nation first, then others”.

137. On or about 19 July 2009, the Accused, as Sister Amirah, telephoned Andrew Ranaudo, the uncle of an Australian soldier who had recently died whilst serving in Afghanistan, Private Benjamin Ranaudo. The following conversation occurred:

“Accused: You’re against the war and the government sending troops overseas.

Andrew Ranaudo: I’m not against the war, I’m against sending a young man to war as he does not have enough experience. I’m not sure who they should send but I’m not against the government.

Accused: We have to stop them from sending our children there.”

138. On or about 22 July 2009, a letter in the name of Sheikh Haron was posted to Mr Ranaudo. The letter was also posted on the Sheikh Haron website. The letter noted that Sister Amirah had called Mr Ranaudo’s home on 19 July 2009 to “offer her condolences”. The letter suggested that the Australian Army was a criminal organisation that killed civilians, including children, and that everyone in the Australian Army, including his late nephew, was a criminal.

139. On 20 October 2009, arising from these communications with the families of deceased servicemen, Monis was charged with using a postal service to cause offence contrary to s.471.12 Criminal Code 1995 (Cth). In July 2010, the Accused was charged with similar offences arising from her involvement in those communications.

The Downing Centre Protests in 2009 and 2013

140. On 10 November 2009, the Accused filmed Monis outside the Downing Centre following an appearance by him with respect to the Commonwealth charges. The Accused filmed members of the media and handed out leaflets in support of Monis (Exhibit BF).

141. In the course of a telephone conversation with her cousin on 28 July 2013, on the eve of her and Monis appearing in Court to answer the Commonwealth charges, the Accused was heard to say (about the forthcoming hearing) “We are proud” and “We’re excited, we’re looking forward to it” and “We are strong. We are united …” (Exhibit EA, pages 15, 22 and 23).

142. On 6 September 2013, after Monis and the Accused had pleaded guilty to the Commonwealth offences, the Accused filmed Monis outside the Downing Centre (Exhibit CT). The Accused smiled as she filmed Monis whilst he spoke to the media defending the letters which had been sent to families of deceased servicemen.

143. It is important, at this point, to say something about the role of this evidence in the trial. The evidence of these activities sheds considerable light upon the dynamics of the unusual relationship between Monis and the Accused. There is no sign in the evidence that the Accused held political or religious views of this type prior to her meeting Monis. It is apparent that the Accused was greatly influenced by Monis’ political and religious views, which she was prepared to adopt and publicly espouse. Her actions involved her acting at the behest of Monis, in a number of different ways and over an extended period of time. There is nothing in the evidence which suggests that the Accused had abandoned these views and beliefs by the time of the killing on 21 April 2013. Indeed, things were said and done by the Accused after 21 April 2013 which point to her maintaining these views and beliefs.

144. The Crown alleges that Monis wanted his former wife to be killed and that the Accused was prepared to do this both to cement her very close relationship with him and to further their plan to form a single family unit with Monis, his sons, the Accused and her daughter.

145. The willingness of the Accused to act in these ways, at the behest of Monis, is relevant to the motive and state of mind of the Accused as at 21 April 2013, and her preparedness or tendency to conduct herself in extreme ways to please Monis.

Monis, the Victorian Bushfires and Fire as a Means of God’s Punishment

146. Between 9 February 2009 and 7 March 2009, Monis sent letters to the then Prime Minister, Kevin Rudd, and the then Premier of Victoria, John Brumby, concerning what Monis perceived as being the significance of the devastating Victorian bushfires (Exhibit DX). In effect, Monis asserted that God had used the Victorian bushfires as a means of punishing Australians for their participation in the wars in Afghanistan and Iraq, and in anti-terrorist activities. In the letter to Premier Brumby dated 12 February 2009, Monis said:

“We, Australians, deserve to have an unsafe country as long as we are in a deep sleep. We, Australians, deserve to be burned in the fire of hell, the fire of bush is nothing!”

147. In a letter of 7 March 2009 to Prime Minister Rudd, Monis said:

“God does not act accidentally, all acts of God are done deliberately with intention and reason/s. According to the Holy Quran, the Holy Bible, the Holy Torah and other Holy texts, God sometimes sends his punishments and/or warning signs to people by different facilities, sometimes by his angels, sometimes by his human soldiers, sometimes by nature disasters etc. Such an act is obviously a violent act but it is fair, God does not commit any unfair violence.”

148. Entries on the Sheikh Haron website serve to emphasise Monis’ beliefs relating to the Victorian bushfires and God’s use of fire (Exhibit EL). By reference to his own letters, Monis made extravagant and extreme statements under headings such as “God is a terrorist”, “Australia’s 9/11”, “Australians deserve to be burned in the fire hell, the fire of Bush is nothing!” and “Australians will be punished!”.

149. The Crown points to this material as illustrating Monis’ view concerning the use of fire in a manner which the Crown seeks to link to the use of fire in the killing of Helen Lee.

Monis’ Financial Position

150. In early 2013, Monis was in a poor financial position. His bank accounts revealed small amounts only (T793-795).

151. The evidence indicates that Monis had ceased his activities as a spiritual healer and clairvoyant by 2010. He was in receipt of an Austudy payment between January and March 2010, and again between June 2010 and February 2011. He received a Newstart allowance for the periods 5 March 2010 to 10 June 2010, and from April 2011 to 15 November 2013 ( T795).

Helen Lee Ends Relationship with Monis

152. On 18 June 2011, Helen Lee ended her relationship with Monis (Exhibit C, paragraph 61).

153. Within days of their separation, Monis reported an alleged indecent assault of his eldest son, by Helen Lee’s father. These matters were investigated, but the allegations could not be substantiated and no action was taken. The investigating detective determined that the allegations against the maternal grandfather were false and had been made by Monis with the intention of securing custody of the children. I am likewise satisfied that Monis’ allegations were false.

154. On or about 2 July 2011, Monis asked Helen Lee if he could have access to the children for the weekend every fortnight. She would not allow this, but agreed to allow Monis to visit with the children in a public place at a McDonald’s store. Monis did subsequently visit with the children at a McDonald’s store on a supervised basis.

155. On 22 July 2011, Helen Lee reported a domestic violence incident between herself and Monis which occurred on 20 July 2011 in the car park at McDonald’s at Hinchinbrook. During this face-to-face meeting, an argument occurred between her and Monis in relation to custody and access of their two sons. During this argument, she alleged that Monis became abusive and stated “If I can’t see the kids more than I am now, you’re going to pay, even if I have to shoot you”. Monis was later charged with an offence under s.13 Crimes (Domestic and Personal Violence) Act 2007. A provisional apprehended violence order was made pending the hearing. The charge was ultimately dismissed on 30 May 2012 following a hearing at the Campbelltown Local Court. The effect of the court proceedings, however, was that Monis was deprived of seeing his children from 20 July 2011 until after interim orders for supervised access were made in the Federal Magistrates Court on 27 October 2011.

Monis Commences Custody Proceedings

156. On 9 August 2011, Monis commenced proceedings in the Federal Magistrates Court seeking full custody of the children. Affidavits were prepared by both parties in furtherance of those proceedings. The affidavits prepared by Helen Lee and her parents in 2011 and 2012 provided a history of the domestic relationship and conflict, during which she claimed to have been dominated, controlled and duped by Monis.

157. In Monis’ affidavits from 2011 and 2012, he cited the alleged sexual abuse of his son as his principal reason for seeking sole custody. Monis also alleged that his wife had assaulted their youngest son. Both parties filed Notices of Child Abuse or Family Violence with respect to each other. Various interim Family Law orders were made with respect to these proceedings.

158. In Monis’ initiating affidavit for the custody proceedings, he stated that he then lived in a two-bedroom unit in Blacktown, and that the children would share one room and he would live in another. Monis stated that the landlord would not charge him rent until the children reached 18 years of age. This reference to Monis’ landlord was a reference to Female M, who owned a two-bedroom apartment in Blacktown. Monis had bail conditions in his Commonwealth criminal proceedings to reside at Female M’s Blacktown address, and had also registered this as his address with the Roads and Traffic Authority.

159. There was no mention of the Accused in any of Monis’ affidavits in the custody proceedings during 2011 and 2012.

160. On 25 October 2011, interim consent orders were made in the custody proceedings which allowed Monis to have access with the children at Lollipops Play Centre in Wetherill Park, supervised by Helen Lee’s mother.

161. On 20 February 2012, interim orders were made by consent in the custody proceedings for Monis to have unsupervised access at the Lollipops Play Centre. The orders provided for the maternal grandmother (or Helen Lee’s adult nominee) to attend at the handover.

162. On 10 May 2012, a family consultant’s report dated 7 May 2012 (ordered by the Court in the custody proceedings) was released to the parties. The report recommended that Helen Lee have parental responsibility with Monis to have visitation rights.

163. On 26 May 2012, Female M, to whom Monis was then engaged, died of natural causes in her Blacktown unit.

Monis Abandons his Custody Application and Proposes to File Application “in God’s Court”

164. On 5 July 2012, Monis sent a letter to Magistrate Baumann, the presiding Federal Magistrate, complaining about the proceedings.

165. At the top of the first page of the letter were the words “In the name of God” (Exhibit CI). Monis stated that he wanted to withdraw his case from the Federal Magistrates Court and to “file in God’s court”. Monis concluded the letter as follows:

“Now I want to tell you about my belief and I expect you to respect my idea. I believe that God is the creator of the worlds, the absolute owner of everything. In fact this is God that makes decision, not me and you. God is the decision maker, not you. This means if you order that the children must live with me, but if God decides that the children live with someone else the children will not live with me. Also if you order that the children must live with their mother, but if God decides that the children live with someone else the children will not live with their mother. I have already lodged my complaint and application file in God’s court, therefore it is useless to file my application in your court. God is my magistrate, God knows who is telling the truth and who is telling lie, my magistrate is able to protect my children from further sexual abuses, my magistrate will make the best decision for my children's best interests, I now want to withdraw my case from your court and I will rely on God's court.”

Monis and the Accused from July 2012

166. Soon after Monis wrote this extraordinary letter, a number of significant steps were taken which shed light on the relationship between Monis and the Accused.

167. On 10 July 2012, the Accused appointed Monis as the enduring guardian of her daughter in the event that she was unable to care for her daughter for any reason (T601).

168. On 20 July 2012, the Accused made a will nominating Monis as her executor and the sole beneficiary of her estate (T601).

169. On 27 July 2012, the custody proceedings were listed for hearing in the Federal Magistrates Court. There being no appearance for Monis, the Court vacated the hearing date and the proceedings were adjourned to 24 August 2012 for an undefended hearing, with Helen Lee to file and serve a Minute of the final orders which she sought.

Monis, the Accused and Child Access Visits

170. Between 5 August 2012 and 7 April 2013, child access visits involving Monis and his two sons took place at regular intervals. A regular feature of these access visits was that the Accused and her 12-year old daughter would also attend.

171. Monis videoed the child access visits between August 2012 and April 2013 (Exhibits BG and CE).

172. Accordingly, the Court has had an opportunity to view and hear directly the interaction which took place between the Accused, Monis and their respective children as captured in these videos. It was common ground between the parties that Monis told his sons that the Accused’s name was “Mumi” (pronounced “Mummy”) with the boys being encouraged to call her that. As will be seen, Helen Lee became upset at this and complained to Monis about it.

173. During the first access visit on 5 August 2012, the Accused acted warmly towards Monis’ sons, saying at one stage to the older boy (then eight years old) “Can I give you one kiss, cause you are so good” and she kissed the boy on the cheek. A little later, the Accused kissed the other boy (then four years old) on the cheek. Monis held out his hand towards the Accused and said to the younger boy “Kiss, kiss” and the little boy kissed the Accused on the cheek, with the Accused responding “That’s a big kiss, thank you”.

174. On the second access visit, on 12 August 2012, the Accused and her daughter approached the boys with Monis saying “Mummy and [daughter’s name] … come to see you”. A little later, whilst a game was being played, Monis said to his sons “Mummy’s in the middle then” and a little later “Now, give it to Mummy”. Thereafter, Monis referred to the Accused repeatedly as “Mummy” when speaking to his sons. At one point when a game was being played, the older son called out to the Accused “Mummy, Mummy”. A little later, the Accused asked the younger boy to smile and he did so with the Accused saying to him “That’s my boy smiling, good boy” and kissing the little boy on the cheek. Soon after the Accused hugged the younger boy and said “I love you”.

175. On the third child access visit at Lollipops Play Centre on 19 August 2012, the Accused and her daughter were again in attendance. At one point, Monis’ younger son used the word “Mummy” with reference to the Accused. Later on in the visit, the Accused said to the other boy “OK, Mummy’s going to have a coffee now so I’m going to sit and have a coffee. Anyone want to have a rest and sit with me?”. When the time came to leave, the Accused kissed the older boy goodbye.

176. Final orders were made by the Federal Magistrates Court on 24 August 2012 in accordance with the Minute of Proposed Orders filed by Helen Lee. These orders granted her full custody with Monis being given visitation access every second Sunday between 10.00 am and 4.00 pm. The orders stated that the designated location for the exchange of custody was at Monis’ residence. The order stated that Monis was required to provide written notice of his address to his former wife. By letter dated 4 October 2012, Monis nominated the address as Unit 43/14-20 Parkes Avenue, Werrington.

177. Monis signed an agreement to sublease the Werrington unit on 27 May 2012 from a friend, Female P. However, he did not reside at this location in any full-time capacity. The residents of the Werrington complex reported seeing Monis there infrequently, and had formed the opinion that he was there only on certain weekends. From October 2012, Monis used the Werrington address for custody exchange of the children every second Sunday.

178. Throughout this period, Monis resided predominantly with the Accused and her daughter at an address in Croydon.

179. On 21 October 2012, the first child access visit took place with the handover of the children occurring at the Werrington unit. Once again, Monis videoed the visit. The Accused and her daughter took part in the visit and the outing which took place during the day. The Accused played with the three children in the park opposite the Werrington unit block.

180. On 4 November 2012, a further child access visit took place in which the Accused and her daughter were once again in attendance. The group went to Brighton-Le-Sands where, at one point, Monis filmed the Accused rubbing sun cream on to the back of his older son.

181. A further access visit took place on 18 November 2012 with the pick-up and return of the children occurring at the Werrington unit. The Accused and her daughter attended once again and the group went on an outing to Ripples Swimming Pool at St Marys. At one point, Monis’ younger son called out “Mummy”, and the Accused told him he was a brave boy and that she was very proud of him because he was so scared. A little later, the Accused was filming Monis in the pool with his younger son. The Accused stopped filming when told to do so by Monis. Soon after, the elder boy referred to the Accused as “Mummy”. Whilst still at the swimming pool, the Accused was holding the younger son and asked him if he was warm. Monis said “Oh, very nice. You love Mummy?”. The little boy nodded and the Accused said “I love you too” and kissed him.

182. Later in the afternoon of 18 November 2012, when back at the Werrington unit, the video indicated that Monis, his two sons and Female C were present. Female C told police investigators that she had been called by Monis to the Werrington unit not long before she attended. She was present there when Helen Lee came to pick them up. Female C considered that Monis had invited her to attend so that Helen Lee would see him with her (Female C).

183. Monis had telephoned Female C at about 3.00 pm on 18 November 2012 inviting her to come to his unit to meet his children (Exhibit C, paragraphs 82-85). Female C attended the unit and met the two boys. Monis told Female C that the children’s grandmother was coming to pick them up and he asked her to open the door so that the children could leave. Female C opened the door and both the mother and grandmother of the boys were waiting. The boys departed and soon after Female C left. Monis had told her that he had to go and meet a friend.

184. This brief appearance by Female C is the only occasion upon which a female, other than the Accused, appeared in any videos that Monis took of the child access visits.

185. After the boys had been collected from Werrington on the afternoon of 18 November 2012, Monis and Helen Lee exchanged text messages in which Helen Lee complained about Female C’s presence at the unit. Monis’ text messages to his former wife included the following (Exhibit C, paragraph 85):

“‘..as you are aware I have withdrawn my application from your court and I have filed in a different court, so its [sic] too early to judge only after I see the result of the court. Meanwhile I will follow the order of your court. Thank you‘ and ‘I am genuinely happy that you have accepted that we should leave it to God. So then we will both leave it to God and we ask God to show us the result of accusing the innocent for getting an AVO, and selling Islam and Allah in the family court to gain custody’.”

186. I do not consider that the limited attendance by Female C on this occasion evidenced any deeper relationship between her and Monis which bears upon the issues to be determined in this trial. The likely explanation for Monis’ sudden invitation for her to attend that afternoon was to irritate Helen Lee.

187. A further child access visit occurred at the Werrington unit on 2 December 2012. The boys entered the unit and Monis told them that there was a “surprise” which would make them happy. Monis told the boys to check the unit balcony and the balcony opened revealing the Accused and her daughter. The Accused gave each boy a belt as a gift. A little later, Monis was seen on the bunk beds with the two boys, with the Accused filming. She ceased filming at the direction of Monis. The group proceeded on an outing and are seen with animals and, at one point, on an amusement ride.

188. As the child access visits were fortnightly, the next scheduled visit was thought to be on 16 December 2012. It was the evidence of Jayesh Goundar (Helen Lee’s then boyfriend), that Monis had cancelled a child access visit on at least one occasion (T333). I am satisfied that no child access visit took place on 16 December 2012. If it had, Monis would have followed his invariable practice of videoing at least parts of the visit. The absence of such a video confirms the fact that no visit took place on that day, probably because Monis had cancelled it.

189. The effect of this finding is that there is direct evidence that the Accused and her daughter participated in every child access visit which took place between 5 August 2012 and 7 April 2013.

190. The next child access visit took place at the Werrington unit on 30 December 2012. Christmas decorations are visible in the video recording and the children are excited at what lies ahead. Monis frequently referred to the Accused as “Mummy” in the presence of the children. Presents are distributed amongst the group and the children refer to the Accused as “Mummy”. At one point whilst the group are on the unit balcony eating at a table, the younger son says “I love you” to the Accused, referring to her as “Mummy”, and the Accused replies “I love you too”. The Accused participated in the distribution of presents. The Accused gives the younger boy a guitar as a present, with Monis saying as the present is unwrapped “Oh, what is this, open it and see what is this present of Mummy”. Monis tells the boys that other presents were “Mummy’s choice”, with the Accused saying “I went to the shops and I chose this all by myself” and with Monis saying “Thank you Mummy”. Whilst the younger boy played with a toy, he calls out to “Mum” and “Dadda”.

191. A by-product of the Accused’s close relationship with Monis, manifested as it was by her constant involvement in access visits from August 2012, was that there was a level of direct and indirect contact and communication between the Accused and Helen Lee. The Crown submits that activities of Monis and the Accused, particularly in the early months of 2013, were intended to place pressure upon, if not intimidate, Helen Lee and her parents.

Monis Uses Bikies to Intimidate Helen Lee and Her Parents

192. The next child access visit occurred on 13 January 2013 at the Werrington unit. The group, including the Accused and her daughter, departed Werrington in Monis’ Jeep and travelled to the home of Helen Lee’s parents before moving onto the Ripples Swimming Pool at St Marys.

193. On this occasion, Monis, the Accused, her daughter and the two boys drove to the residence of Helen Lee’s parents in the company of two other males on motorcycles, purportedly to collect clothing belonging to Monis. These males were members of the Mt Druitt Chapter of the Rebels Outlaw Motorcycle Gang (“OMCG”), about which more will be said later in the judgment. The two Rebels OMCG members had gone with Monis “to do standover tactics on Man’s ex” (Exhibit AT, paragraph 26). Gary Clifford (about whom more will be said shortly) considered that these men “wouldn’t have done it for nothing” and that Monis “would have to have paid” them.

709. It was submitted that the videos taken by Monis of the beginning and end of access visits, in particular on 27 January 2013, did not support the complaint made by Helen Lee against the Accused and Monis.

710. With respect to the attack itself, it was submitted that Monis’ plan must have been for the attacker to murder the deceased quickly and quietly, given the close proximity of other people in the apartment complex on a Sunday afternoon. Using a firearm was out of the question so that, with the full advantage of surprise, an initial and fatal knife blow would have achieved those objectives. It was submitted that killing the deceased by stabbing was the obvious means to do so as part of the plan, however something went wrong with the plan. It seemed that the attack was intended to take place inside Monis’ unit and not on the staircase, with this scenario being supported by the insurance policy taken out by Monis shortly before the killing.

711. With respect to the evidence of Mr Morris, it was submitted that his evidence as to the attacker’s height was confusing. It was noted that Mr Morris heard the victim calling out “I have children, I have children”. It was submitted that it would be unlikely that a person in the deceased’s terrible predicament would have said that, if she recognised her attacker and if the attacker knew that she had children. If the attacker was the Accused, it was submitted that the deceased would not have said words to that effect to her.

712. It was noted that Mr Morris had seen a person of similar height and build to the attacker a couple of months before the murder, with the person he saw on the earlier occasion wearing “Middle Eastern clothing”. Reference was made to the evidence of Ms Edwards who had seen the Accused in the building dressed in Western clothes. It was submitted that Mr Morris’ observation was compelling evidence that, before the killing, Monis had a woman in his apartment who was strikingly similar in dress, build and height to the killer that Mr Morris saw, and who dressed quite differently to the way in which the Accused dressed when she was at the Werrington apartments.

713. Submissions were made by reference to the statement of Ms Ison, which was tendered during the evidence of Detective Senior Constable Staples. Ms Ison lived in 10 Parkes Avenue, the same unit block where Mr Quiney and Mr Woods met up. Ms Ison stated that, shortly after smelling smoke, she observed a person standing on the opposite side of Parkes Avenue walking towards the unit block. She described the person as being medium height, 5’6” tall, slim build and dressed in all black clothing, being a black hooded jumper with the hood on her head, black jeans and with her head tilted down. The person stood there for a minute staring at the unit complex and then all of a sudden ran across the road to the driveway of Ms Ison’s unit complex. Ms Ison heard the bins in the driveway area being knocked over or the lid being slammed on them.

714. Ms Ison heard the fire brigade and police arrive and later that night a police officer came and knocked on the door and she told him what she had seen and heard. Ms Ison was not able to say if the person was male or female and she did not see the face or the features of the person.

715. It was submitted for the Accused that the Court should conclude from the evidence that the bins outside 10 Parkes Avenue were not searched during the police search of the area. It was not suggested that the Accused had any link with any of the occupants of that building and, if the person seen was the attacker, it was not the Accused. The body shape of the Accused could not be described as “slim build” which was Ms Ison’s description of the person. Mr Ierace SC submitted that this person may have had nothing to do with the attack on the deceased, however, the evidence indicated that there were persons in the area at the relevant time who had not been excluded from the investigation.

716. Submissions were made on areas where the evidence was said to be consistent with innocence.

717. It was submitted that the keys to the Werrington unit and front security door, found in the possession of the Accused, could have been provided to her by Monis at any time. It was submitted that the evidence of the Accused’s daughter that they would enter the Werrington apartment block by buzzing Monis did not indicate that the Accused had no keys to the premises. It was submitted that the limited use of the keys was consistent with Monis having tested them before giving them to the Accused for her to use if he was unable to buzz her in.

718. It was submitted that, if the Accused was guilty, how extraordinarily incompetent of her to leave the means of her only access to the unit to carry out the killing in a place that could be so easily located and, being her handbag, so easily connected to her. If she was the killer, by the time of the search on the evening of Monday, 22 April 2013, the Accused was on notice that the police regarded her as a suspect. It was submitted that all of this begs the question, if the Accused was the killer, as to why she would have kept the means of access in such an easy locatable place in her handbag on the back of a chair at the dining room table. If she was the killer, it was submitted that she would have disposed of them, along with the knife, petrol container and matches.

719. It was submitted that Monis had the opportunity to let the killer into the unit on 21 April 2013, before he and his party drove off to the Penrith Swimming Pool so that, once in the apartment, the unit layout facilitated the killer being able to wait there undetected.

720. Submissions were made by reference to the Accused’s movements on 20 and 21 April 2013. It was submitted that phone records suggested that the Accused was at Flemington Markets on Saturday, 20 April 2013.

721. With respect to Monis undertaking his access visit in the context of a meeting with friends and their families on 21 April 2013 without involvement of the Accused, it was submitted that it may have been too much for Monis to tell his friends at that time of the existence of the Accused, so that it would have been too much for them to take on board in the one meeting and that it was better to do it in stages.

722. In response to the Crown argument as to why Monis would not afford the same alibi protection that he afforded himself by inviting the Accused along, Mr Ierace SC submitted that this assumed that Monis had no supervisory or communication role with the killer. If Monis did, he could not have had the Accused with him unless she became aware of it, thereby compromising his cover.

723. Senior Counsel for the Accused made submissions concerning the presence of the Accused at Croydon on the morning of 21 April 2013, and the making of calls from the Croydon Station payphone at 1.52 pm - 1.54 pm that day. It was submitted that the Crown argument that this was an attempt by the Accused to make a call to her daughter, ahead of the stressful planned murder, was both speculative and fanciful.

724. Submissions were made concerning contact between the Accused and Monis on the evening of 21 April 2013. It was submitted that the phone calls by the Accused between 7.10 pm and 7.19 pm on 21 April 2013 were consistent with the Accused wanting to find out where Monis was, having not heard from him during the day.

725. It was submitted that the Accused’s journey to Kingswood was consistent with her deciding to catch a taxi to Strathfield Station, and from there to get a train to Kingswood. At the time of the phone call at 8.22 pm from Monis, the Accused would be well on her way to the hospital. At 9.22 pm when she arrived at Kingswood, the Accused rang Monis and it diverted to voicemail with Monis then ringing her, being the call recorded on the police video camera.

726. With respect to Monis’ phone call at 10.19 pm, it was submitted that Monis was going off with the police so it was not surprising that the Accused would have headed back home.

727. Monis rang the Accused at 11.49 pm. It was submitted that it was doubtless that Monis told her at this time that he was going to bring his sons around.

728. It was submitted that the Crown had failed to establish the guilt of the Accused to the criminal standard, so that the appropriate verdict was one of not guilty.

Conclusion and Verdict

735. I have already expressed my reasons for being satisfied beyond reasonable doubt that Monis planned, and put into effect, the murder of his former wife.

736. For reasons already expressed, I am satisfied beyond reasonable doubt that the attacker who killed Helen Lee was a female. I am satisfied beyond reasonable doubt that the attacker intended to kill Helen Lee.

737. The remaining question is whether the Crown has proved beyond reasonable doubt that the attacker who murdered Helen Lee was the Accused.

738. I bear in mind that the onus is upon the Crown to prove beyond reasonable doubt the elements of the offence. It is not necessary for the Crown to prove every fact to the criminal standard, nor is it necessary for the Court, before returning a verdict of guilty, to answer every question or solve every puzzle which may emerge, in one way or another, from the evidence in the trial.

739. I have considered all evidence adduced in the trial and have had regard to the submissions made for the Crown and on behalf of the Accused. In the judgment so far, I have indicated my conclusions and findings with respect to a range of issues. To the extent that I have rejected individual arguments advanced for the Accused on particular issues, I have nevertheless approached the question of verdict upon the basis that it is open to the Accused to contend that a foundation for an acquittal may emerge as a result of the cumulative effect of a number of the features of evidence in the trial. This is consistent with the principle that the Court should not consider the items of evidence in a piecemeal fashion.

740. It is appropriate at this stage to stand back and consider all the evidence. Findings to the criminal standard that Monis planned and put into effect the murder, and that the attacker was a female, have a practical effect in narrowing scenarios which may otherwise have been open, as to the identity of the killer.

741. Neither the arguments of the parties, nor the evidence in the trial leaves open, as a reasonable possibility, a scenario where Helen Lee was murdered in a random attack or by a stranger. This has the practical effect of narrowing very substantially the range of available persons as the killer.

742. I am satisfied that the killer was a person well known to and trusted by Monis. Although Monis had a history of affairs and relationships with different women, the evidence does not permit, as a reasonable possibility, the attacker being a woman somehow associated with Monis, but who remained and remains unknown. Thorough investigations were undertaken by police with a number of women being identified, and with all of them being excluded in the course of the investigation.

743. As the tribunal of fact, I record my finding that each of these women was appropriately excluded as a suspect. As mentioned earlier, no argument was advanced at trial that any individual woman ought be regarded as an available and known suspect.

744. With respect to the hypothesis advanced that the killer was a person associated with the Rebels OMCG, a fundamental stumbling block, as I have said, is the description of the killer and the means of murdering the victim. Those aspects are totally inconsistent with a killing undertaken for payment or promise of payment.

745. I do not accept the argument advanced for the Accused that events which surrounded the possession and use of Monis’ Harley Davidson motor cycle may be linked, in some way, to the payment or security for payment for a hired killing. The evidence does not indicate that Monis voluntarily parted with the motor cycle entirely and, indeed, he took steps unsuccessfully to recover it after the murder. Monis was not acting in a manner consistent with a person who had used the Harley Davidson as payment, or security for payment, for a hired killing.

746. I have considered submissions advanced for the Accused with respect to Monis’ efforts, in November 2013, to recruit a person to kill Helen Lee’s father. Like Monis’ efforts to solicit a murder earlier in the year from the Rebels OMCG, these later attempts on his part were likewise summarily rejected. I do not consider that the steps taken by Monis in November 2013 shed any light upon what had actually occurred in events leading up to the murder of Helen Lee in April 2013.

747. The murderer was an agitated and angry female wearing a hijab. Although as was submitted for the Accused, the selection of a knife as a murder weapon, may have had an advantage over a firearm, the killing in this case was carried out in a frenzied fashion with 18 knife wounds being inflicted to the victim. Thereafter, and gratuitously, the murderer set alight to the victim in a closed area, in a manner which would have the opposite effect to that argued for the Accused with respect to the selection of the means of killing.

748. This crime had all the hallmarks of a frenzied attack by an angry amateur killer, acting in a manner consistent with Monis’ desire as to the means of inflicting death. Although I readily accept that Monis had a financial motive in making a fraudulent claim on the insurance policy which he had taken out just 11 days prior to the killing, I do not consider that this aspect operates as any more than an incidental factor. Nor do I accept that Monis’ plan to claim on the insurance policy was to be explained as a means of getting money to pay a hired killer.

749. With respect to the defence submission concerning the Accused’s attempted calls between 1.52 pm and 1.54 pm from the Croydon payphone (at [729] above), I observe that it is not necessary for the Crown to explain every aspect of the case or for the Court to answer every question which may be posed. What may be said, however, is that the calls suggest that the Accused was using a payphone in Croydon in an attempt to contact someone at the Belmore premises. There is no explanation as to why the Accused would not simply use her own mobile telephone for this purpose. She had used her mobile telephone that morning and again that evening. Beyond that, I note that the Court does not need to resolve every puzzle which emerges from the evidence for the purpose of reaching a verdict.

750. With respect to the defence submission concerning the failure of the Accused to attend Nepean Hospital on the evening of 21 April 2013 (at [731]-[732] above), the damaging feature of the evidence for the Accused was her unexplained failure to travel the short distance from Kingswood Railway Station to the hospital after she received Monis’ call at 9.22 pm. I infer that the Accused travelled by train to see Monis and there is not a sensible innocent explanation as to why she would not enter the hospital to see Monis, check on his wellbeing and wait with him.

751. With respect to the argument, advanced on behalf of the Accused, that it may have been that a woman seen by Mr Morris in the Werrington apartment block at an earlier time (who was wearing Middle Eastern clothing, but was said not to be the Accused) could have been the murderer (at [718] above), I record my conclusion rejecting this submission. I accept that the woman seen by Mr Morris at an earlier time was the Accused, who possessed the relevant clothing. The evidence, as a whole, does not support the existence of an unidentified woman in Monis’ life as at 21 April 2013, let alone one who was prepared to commit murder for him.

752. It is the case that Mr Morris said that the victim called out “I have children, I have children” to her attacker. I do not accept the defence submission (at [717] above) that this supports the attacker being a woman other than the Accused, as Helen Lee had met and would have recognised the Accused. This argument assumes that a terrified Helen Lee would have been thinking sufficiently clearly to have recognised the Accused if she was the killer. In my view, this argument disregards the frantic circumstances which existed with the attacker, dressed in a hijab, attacking Helen Lee. There had been limited face-to-face contact between the Accused and Helen Lee. I do not accept the submission that these words, in some way, point to the attacker being someone other than the Accused.

753. I have considered the defence submission arising from the statement of Cheryl Ison (at [719]-[721] above]). Her description of the person (male or female) she saw is entirely inconsistent with the evidence of the eye witnesses. The movements of the person observed are not readily linked to anything to do with this murder. I regard the defence submission by reference to this evidence as a speculative one which does not present any reasonable inference arising from the evidence which may assist the Accused. Likewise, I reject the argument that certain areas ought to have been searched upon the basis of this material, and that this feature bears upon the verdict to be reached in this trial.

754. It was submitted for the Accused that it may have been Monis’ desire to reveal the existence of his relationship with the Accused to these friends in stages (at [727] above]). Although this is a theoretical possibility, I keep in mind that what occurred on 21 April 2013 was a well thought out creation by Monis of what he considered to be an ironclad alibi for himself, given his plan that his former wife would be murdered soon after 4.00 pm that day. I see little scope in this for Monis to be influenced by a social desire to explain his life to his friends in a gradual and staged way.

755. It is, in my view, extraordinary that Monis would not have invited the Accused to attend the outing that day if she was not involved in the planned murder, and if she was completely ignorant of what Monis intended to have done for the benefit of both himself and the Accused.

756. I have referred earlier in the judgment to the conduct of the Accused between January and April 2013 in connection with Helen Lee and Mr Goundar. I express my satisfaction that a course of conduct was undertaken by Monis and the Accused between January and April 2013, with a view to irritating and destabilising Helen Lee, and deterring Mr Goundar from entering the Werrington apartment block with her.

757. I do not accept the defence submissions made by reference to the keys to the Werrington apartment block and unit (at [723]-[725]). The evidence of the Accused’s daughter indicated that the Accused did not have keys to the Werrington doors. The Accused came to possess quite new keys to the Werrington doors. Her continued possession of the keys as at 23 April 2013 is not indicative of innocence.

758. I am satisfied that the Accused had the motive, means and opportunity to carry out the murder on 21 April 2013.

759. The motive involved several elements, including a desire by Monis and the Accused to form a single family unit with his sons and the Accused’s own daughter. Monis had been going to considerable lengths between August 2012 and April 2013, in child access visits and other aspects of his life, to give the Accused the clear impression of a plan to have a single family unit, with her as the mother figure for all three children.

760. A telling piece of evidence involved the video footage of Monis, the Accused, Monis’ sons and the Accused’s daughter in the Croydon unit on the evening of 22 April 2013. The images depicted suggest a family unit engaged in routine activities, with the Accused acting in a motherly way towards all three children. That Monis and the Accused were acting in this way, a little more than 24 hours after the murder of the boys’ mother, fortifies a conclusion that the intention to create a family unit by disposing of the boys’ mother had been realised, and was being acted upon without delay.

735. In circumstances where Monis had abandoned his attempt to have a civil court grant him custody of the children, and he had asserted that the matter would be resolved “in God’s court”, the only realistic means where custody of the boys could be obtained was by way of the permanent removal of Helen Lee from the scene. I am satisfied that the Accused was motivated to achieve this result as at 21 April 2013, as was Monis.

736. There is a further feature of the Accused’s motive which emerges from her complex and unusual relationship and history with Monis. I conclude readily that it was her meeting, and subsequent relationship with Monis, which led the Accused to adopt religious and political beliefs with an extreme content as demonstrated by her statements and conduct in 2008 and 2009. In acting in this way, the Accused appears to have adopted uncritically Monis’ view of the world with its extreme and perverse features. The Accused was enthralled by Monis and this remained the position up to 21 April 2013 and beyond.

737. There is nothing in the evidence to suggest that, prior to meeting Monis, the Accused had acted in such a fashion or was minded to act in such a fashion. When this aspect is added to the firstmentioned motive relating to the desire to create a family unit, I am satisfied that a powerful compound existed. I am satisfied that Monis took advantage of the Accused’s willingness to act at his behest, and in a manner which she perceived to operate to the unique advantage of Monis and herself.

738. The means for the commission of this crime were readily available in the form of a knife, a liquid fuel or propellant and a box of matches. These were commonplace items which were readily available to the Accused. The evidence reveals that a box of matches of the type used was in the possession of the Accused, and was used, in a barbeque setting in the weeks prior to the killing. She possessed the relatively new keys to the Werrington security door and to Monis’ unit. I am satisfied that Monis supplied these keys to her shortly prior to the killing.

739. The opportunity for the Accused to commit the crime is established in a number of ways. Firstly, she did not accompany Monis on the child access visit on 21 April 2013 when he, for the first time, invited friends and their families to accompany himself and his sons. Not only was the Accused not invited on this day, but Monis lied to his friends as to her existence.

740. I have indicated why I do not accept the evidence of the alibi witnesses called in the defence case as being reliable and truthful witnesses. It is not necessary to repeat the analysis undertaken in this respect.

741. What is left is evidence that the Accused was at her Croydon unit block in the late morning of 21 April 2013 and in the vicinity of Croydon Railway Station shortly before 2.00 pm that day. There is no further sign of the Accused in person, or by telephone use, until after 7.00 pm when she attempts to call Monis.

742. There was ample opportunity for the Accused to travel from Croydon to Werrington and back to Croydon by early evening. The evidence does not permit a finding to be made as to the precise means of transport used. However, this is an example of an area of the evidence where the Crown is not required to prove each and every step taken, or resolve every query raised on behalf of the Accused. What is important is that there was a clear opportunity for the Accused to travel from Croydon to Werrington and back to Croydon so that she was in a position to commit the crime at Werrington at 4.25 pm on 21 April 2013.

743. The evidence of the eye witnesses at the Werrington apartment block is important. Of primary significance is the account of Mr Morris as to what he heard and saw. It is clear from his evidence that this was a frenzied attack by a highly agitated female who would not be deterred by anything Mr Morris said. His evidence of the attacker’s manner of dress is significant and reliable. Mr Morris had a limited opportunity to observe the facial features of the attacker during an extremely stressful and terrifying event. The fact that he did not select the photograph of the Accused provides no real assistance to the defence in the trial. The photograph which he did select was, in my view, close to the appearance of the Accused. This is not a case where the photograph selected by Mr Morris bore no resemblance to the Accused. Indeed, in my view, there is a close similarity between the photograph selected and the Accused.

744. Of particular importance, as well, was Mr Morris’ description of the woman as being “plump” or “chubby”. This was a reasonable description of the size of the Accused at that time as depicted in photographs. In my view, Mr Morris had a better opportunity to see the attacker than did other witnesses, including Ms Drzewiecki. I do not consider that the features of Ms Drzewiecki’s evidence relied upon for the Accused are of particular assistance to the defence on the real issues in the trial.

745. Given the close temporal proximity of the observations made by the stairwell witnesses and the observations of Mr Hill from his balcony, I am satisfied that the person Mr Hill saw emerging from the ground floor security door was the attacker. I accept his evidence that the attacker headed for the Parkes Avenue exit. I accept that by this time, the attacker had removed her head dress. Although there are variations between the evidence of the witnesses concerning the description of the person whom they observed, the close temporal connection of events establishes, clearly to my mind, that the person observed by each of Mr Morris, Mr Truupold, Ms Drzewiecki and Mr Hill was the attacker.

746. This conclusion of itself constitutes a considerable difficulty for any reliance by the Accused upon the evidence of Mr Quiney. I have already considered the evidence of Mr Quiney and Mr Woods. For reasons explained earlier in the judgment, I am well satisfied that the person observed by Mr Quiney was not the attacker. Indeed, at the time Mr Quiney made his observation, the attack had not even occurred.

747. The Crown is assisted further by the acts and omissions of the Accused on the evening of 21 April 2013. Even though she made her way to Kingswood Railway Station and was close to the Nepean Hospital, the Accused did not attend the hospital to see Monis. Monis remained at the hospital for about an hour after he spoke to the Accused at 9.22 pm. Given the closeness of their relationship and the fact that, on the face of it, he had been admitted to hospital following a motor vehicle accident, it is very difficult to understand this approach on the part of the Accused if she was not involved in the murder.

748. The evidence demonstrates that, whilst police were with Monis at the hospital, he spoke to the Accused by telephone and told her not to attend. Given that Monis had planned and had put into effect the murder of his former wife, it is difficult to understand why Monis would refuse to tell police about the identity and existence of the Accused (if she was innocent), nor tell them to whom he had just been speaking on the telephone. I am satisfied that Monis was shielding the Accused (whom Monis knew was the killer) from the police at that time.

749. In the weeks and months that followed, Monis and the Accused communicated with the police in ways that sought to suggest that Helen Lee’s father or Mr Goundar were the suspects for the murder. Monis was well aware that these were false allegations because he knew who had carried out the murder. I accept that the Accused falsely corroborated some of Monis’ allegations.

750. Throughout this period, the Accused and Monis continued to live a close relationship. The defence case appears to be that Monis was deceiving the Accused throughout this period by hiding from her the fact that he was behind the murder. In considering that scenario, I have taken into account the entirety of the evidence and what it reveals about the longstanding, elaborate and unusual relationship between Monis and the Accused. Although I accept that the Accused was prepared, on a number of occasions, to act at the direction of Monis in an apparently uncritical way, I do not accept that the Accused was naïve. Her willingness to actively participate in and promote the suggestion that Helen Lee’s father (in particular) was a suspect whom she feared because of his experience as a locksmith, sheds light upon her knowledge of, and involvement in, the murder with Monis.

751. It is the case that there is no forensic evidence tying the Accused to the commission of this crime. There is no fingerprint or DNA evidence. I have considered the submission advanced for the Accused that the DNA evidence, arising from the partly burnt match stick, pointed to the attacker being someone other than the Accused. For reasons explained earlier, I consider that the evidence in this respect is, in reality, neutral. There is not an objective foundation which operates in favour of the Accused, as opposed to a speculative theory which may be advanced on her behalf.

752. I have given careful consideration to the arguments advanced by reference to the recorded conversations which are said by the Crown to demonstrate consciousness of guilt. It is important to keep in mind the fact that, as the Accused’s own words demonstrate, she believed that the conversations she was having on the telephone or with Monis were being recorded by the police. I am satisfied that there was a strong element of façade in these conversations. The statements made by the Accused do not assist her in this trial. They demonstrate the development of manufactured accounts, and not spontaneous conversations between her (as an innocent person) and Monis (the planner of the murder).

753. In summary, I am satisfied that Monis planned and put into effect the murder of Helen Lee. The killer was a female. The murder was carried out, in a hot-blooded fashion, by a female with a strong emotional investment in killing Helen Lee. The killer was a trusted associate of Monis who was prepared to carry out the murder, in a manner desired by Monis, using a combination of stabbing and fire. As at 21 April 2013, the Accused was Monis’ closest female associate, who had demonstrated a willingness to act as he wished consistently in the past.

754. A frenzied attack was involved which was entirely inconsistent with the work of a hired killer. The killer bore a close facial similarity to the Accused and the body shape of the killer, as described by the principal eye witness, which was consistent with that of the Accused. The killer was dressed in an unusual manner, involving a head cover available to the Accused. All of these factors lead inexorably to the conclusion that the Accused was the murderer.

755. I return to the principles to be applied in determining whether guilt has been proved in an entirely circumstantial case. Having considered the entirety of the evidence, and all submissions made by the parties, I am satisfied that the only rational inference arising from the evidence is that it was the Accused who carried out the murder. Arguments to the contrary advanced on behalf of the Accused involve mere conjecture or speculation, which raise, at best, bare possibilities of innocence. I keep in mind that the onus of proof remains with the Crown from first to last during the trial. I am satisfied beyond reasonable doubt that the Crown has proved the guilt of the Accused.

756. I find the Accused guilty of murder as charged in the indictment.

757. I convict the Accused of murder.

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Decision last updated: 03 November 2016