R v Green (No 10)

[2021] NSWSC 1449

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Green (No 10) [2021] NSWSC 1449

Hearing dates:

5-9 and 12-16 July; 20-24 and 27-30 September; 1, 5-8 and 11-13 October 2021

Date of orders:

15 November 2021

Decision date:

15 November 2021

Jurisdiction:

Common Law - Criminal

Before:

Campbell J

Decision:

(1) In relation to Count 1, my verdict is a Special Verdict of the act of fatally stabbing Teah Luckwell is proven, but Mr Green is not criminally responsible;

(2) In relation to Count 2, my verdict is a Special Verdict of the act of aggravated break and enter at Ernest Street, Oxley Vale is proven, but Mr Green is not criminally responsible;

(3) In relation to Count 3, my verdict is a Special Verdict of the act of using an offensive weapon at 48 Robert Street is proven, but Mr Green is not criminally responsible;

(4) Under s 67 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) Jesse Green is referred to the Mental Health Review Tribunal;

(5) Under s 33 of the said Act order that Jesse Green is to be detained at such place and in such manner as the Mental Health Review Tribunal determines until released by due process of law;

(6) Direct that a copy of these reasons and of the evidence of Dr Allnutt and Dr Chew be forwarded to the Registrar of the Mental Health Review Tribunal;

(7) Remit sequences 2, 5, 6 and 9 on the s 166 certificate to the Local Court at Tamworth.

Catchwords:

CRIMINAL LAW – trial by judge alone – special hearing – murder – wholly circumstantial case – reasons for verdict

Legislation Cited:

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ss 6, 28, 29, 33, 51, 54, 56, 59, 67

Criminal Procedure Act 1986 (NSW) s 133, 166

Evidence Act 1995 (NSW) ss 32, 38, 50; 116, 165

Crimes Act 1900 (NSW) ss 33B, 105A, 112, 428B, 428C, 428F

Cases Cited:

Hawkins v the Queen (1994) 1979 CLR 500; [1994] HCA 28

R v Minani (2005) 63 NSWLR 490; [2005] NSWCCA 226

The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

Texts Cited:

Pekka Saukko and Bernard Knight, Knight’s Forensic Pathology (CRC Press, 4th ed, 2015)

Category:

Principal judgment

Parties:

Regina (Crown)
Jesse Leigh Green (Accused)

Representation:

Counsel:
B. Costello (Crown)
S. Bouveng (Accused)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Rice More & Gibson Solicitors (Accused)

File Number(s):

2018/106348

Publication restriction:

Nil

Judgment

1. The last clear proof that Ms Teah Luckwell was alive is provided by two aspects of the evidence led at the special hearing. The first is an excerpt of CCTV footage recorded by a camera located at 22 Petra Avenue, South Tamworth (part of Exhibit H). The footage depicts Ms Luckwell, whom I will refer to as Teah, without meaning disrespect, walking west along Petra Avenue outside the premises at 39 to 43, known in these proceedings as the Petra flats, pushing her baby’s pram. The time is 5:45 pm. I infer, she entered the premises. Three minutes later she is seen leaving the premises heading east. From the evidence about the local geography of that part of Tamworth, I infer she is heading in the direction of her home at 34 Robert Street, South Tamworth. That impression is confirmed by the oral testimony of her neighbour directly to her west at 36 Robert St, Mr Daniel O’Connor, who recalls seeing Teah at about 5:45 pm pushing the pram back in the direction of her home next door. She was alone, apart from her baby (348.40T).

2. When Teah is next seen, including by her neighbour Mrs Emma O’Connor at about 9:20 pm on 28 March 2019, she was supine on her kitchen floor. As other evidence shows, she was already dead. Mrs O’Connor rescued Teah’s 14-month-old baby daughter and with her husband called emergency services. Mrs O’Connor’s estimate of time may be slightly out, because ambulance records log the call at 9.36 pm (Exhibit 34). When Mrs O’Connor had pulled up in her car outside 34 Robert Street preparatory to turning right into her driveway, she noticed a light on in Teah’s flat (344.20-25T). She regarded this as odd because Teah’s front door was never open at that time of night, to her observation (342.5T). In fact, she regarded it as “very odd”. As a light was on and the front door was open, she noticed “what appeared to be someone lying on the floor” (341.20T). She parked her car and walked to the front of Teah’s flat, looking in, which confirmed her initial impression. She then noticed Teah’s little girl and hurried to get her husband to come and see what she had seen. She initiated a call to Triple-O.

3. When he saw his wife, Mr O’Connor thought she “seemed a little bit startled” (351.5T). Mrs O’Connor asked her husband to come next door because she had noticed something which “didn’t look quite right”. Not appreciating the gravity of the situation then, Mr O’Connor was reluctant but gave in to his wife’s opportuning.

4. Mr O’Connor said he ascended the short flight of stairs at the front of the 34 Robert Street flats and as soon as he was on the veranda, “[He] could see that there was something definitely not right” (351.20T). He yelled for his wife to call Triple-O. He spoke to the operator who asked him to go inside for a closer inspection, but he was reluctant because from what he had seen he “could tell there was a crime scene” (351.20T). He said “the front screen door was closed. The internal door was wide open and the lights were on inside the unit” (351.36T). I take his reference to the internal door to be to the solid front door behind the screen. He noticed there was a good deal of blood around and he could see that her daughter was lying on the floor beside Teah. He said, “I immediately just thought the worst that something really bad had happened” (352.18T). As tragically it had. He bashed on the wall in an attempt to attract Teah’s attention. Teah did not move but her baby girl stood up and started walking towards the open front door, “which really knocked [him] about a little bit” (352.20T). When this happened, he could tell his wife was going to enter the premises and he said, “Do not touch the door” because of his concern not to disturb the crime scene (352.25T). But Mrs O’Connor’s instincts as a mother took over and she entered the premises to retrieve and comfort the child.

5. I have absolutely no doubt that Mrs O’Connor was correct to do what she did for the child regardless. But as it happens, from the extensive crime scene evidence I have heard, nothing of value was lost or disturbed by her compassionate actions.

6. Mrs O’Connor was not the only person to notice something odd at Teah’s place that night. Mr Jeffrey Langenbaker, who then lived at the Petra flats, walked past 34 Robert Street in company with his then partner, Chloe Palmer on their way to a friend’s house at about 9 pm. He saw a light on in what was Teah’s flat and he made out a shadow of someone laying on the ground. He had a closer look and thought he saw a man lying on his back. He was a bit scared and did not know what to think (328.45T). Ms Palmer said “it’s probably nothing” (329.30T) and they continued on their journey. They did not remain at their friend’s place long and on the return journey he had a closer look and noticed the baby. He thought the adult was lying in what appeared to be the kitchen (330.20T). He then noticed a neighbour near her car. This was almost certainly Mrs O’Connor. He and Ms Palmer continued their journey home. About 5 to 10 minutes later they heard sirens nearby (334.3T). I infer that their return journey coincided, more or less, with Mrs O’Connor’s return home. Ms Palmer gave evidence that on their return journey when she had a closer look she became concerned that the person was not breathing. She decided to go home and get her phone to call the police. By then, however, she heard the sirens and assumed that the matter had been reported by someone else. Mr Langenbaker and Ms Palmer approached police on the morning of 29 March 2018 to make a statement.

7. Snr. Constable Nicole Burley of Tamworth Police was one of the first police officers on the scene arriving in response to the Triple-O call at 9:42 pm with her colleague Const. Donaldson (399.20T). The police officers immediately approached the unit and Snr Const. Burley noticed that both the screen and front doors were open, and she could see directly into the unit because there was a light on inside (399.40T). She immediately entered the unit and found a young female lying on her back on the kitchen floor. Her feet were facing the front door and her arms “were out to each side”. Teah was fully clothed. The police officer also noticed a large amount of blood around Teah’s body and on her clothing. The majority of the blood was around Teah’s head and shoulder area and it appeared to Snr Const. Burley that the blood was dry and quite dark in appearance. Her colleague checked Teah for a pulse which was absent. By then, ambulance officers had just arrived. Snr. Const. Burley spoke to Mrs O’Connor who was holding Teah’s daughter. It is not insignificant to record here that the little girl had dried blood on her singlet and on her hands and feet. Her movements within the flat spread blood stains to various surfaces within her reach and around the floor.

8. The ambulance report (Exhibit 34) records that the first ambulance arrived at the scene at 9:45 pm. Station Officer Daniel Kearney, an Intensive Care Paramedic, was the first senior ambulance officer on the scene. The Tamworth Station Commander, Inspector Brian Lakin, arrived soon thereafter (534.10T). As Station Officer Kearney approached Teah’s residence he noticed a light on in the entry and he was able to see Teah’s body lying on the floor. When he entered the residence, he could see that her body was lying on her back on the kitchen floor. Importantly, according to his report, he switched on the kitchen light “to allow for an accurate assessment” (Exhibit 34). He described a “large amount of congealing, dark blood evident around” Teah, but he was unsure of the site of the haemorrhage. He described his clinical findings as:

“OT – Pt unresponsive, mottled and cold to touch. Nil respirations. Lying supine with eyes open and head turned to the right … mild rigor mortis evident in left arm. Carotid palpated on left side of neck for 30 seconds with nil pulse evident … patient obviously deceased and had been for some time as evidenced by lividity, mottling and rigor mortis.”

9. In oral evidence, Station Officer Kearney said (at 535.45 - .50T):

“… the more blood becomes deoxygenated the darker it gets. It can be exposed for a considerable period of time before it does start to darken. I wouldn’t be able to give a specific time frame, but certainly the lank (sic) of frank blood, which is bright red blood, and all of the blood being evident being dry and congealed and very dark in nature suggested it had been there for … quite some time.”

“Frank blood” refers to well oxygenated blood as in a recent cut (536.5T). There was no frank blood evident at the scene.

10. Dr Leah Clifton is a specialist forensic pathologist with the Forensic Medicine Department at Newcastle. Dr Clifton carried out a post mortem examination on Teah’s body on 31 March 2018 (Exhibit 94). On examination Dr Clifton found two sharp force penetrating stab wounds to Teah’s right upper posterior neck and one sharp force penetrating stab wound to her left upper back. There were no other significant marks or injuries to Teah’s body. In particular, there were no defensive wounds apparent from examination of her hands and arms. Of the stab wounds to Teah’s neck, one penetrated the dura between the base of the skull and C1, the upper most neck vertebral body, injuring the right vertebral artery. This was the fatal injury which resulted in significant blood loss and this was the cause of Teah’s death. This upper neck, fatal injury had a depth of about 11.5 centimetres, the wound trajectory was downwards and from right to left. The lower neck injury was about 8 centimetres deep and its trajectory downwards, backwards and from right to left. This wound involved injury to the bony part of the spine at C3 and C4. The third stab wound to the upper back was 6.5 centimetres deep with a trajectory from left to right slightly upwards at about the C6 level.

11. From her findings, Dr Clifton was able to say that the blade used to inflict the stab wounds was single edged (1544.15T). The fatal injury was delivered with sufficient force to slice into the bone at the base of the skull and penetrate the lining around the spinal cord and, as I have said, piercing the major artery that supplies the back part of the brain. This was a significant vascular injury which caused significant bleeding (1456.32 - .47T).

12. The second neck stab wound and the upper back stab wounds did not cause any vascular injury. In the overall scheme of things, these injuries were not life threatening (1549.5T). It was impossible for Dr Clifton to say in what order the stab wounds were inflicted or in the position of Teah’s body relative to her attacker when they were inflicted. She obviously fell backwards. She would have, first, lost consciousness and, secondly, died within minutes of the infliction of the fatal stab wound (1549.15 - .22T).

13. Apart from such parameters as may be set by a consideration of the whole of the lay evidence, the important question of the time of Teah’s death is not capable of being answered precisely. Dr Clifton gave evidence about this question concurrently with Professor Johan Duflou, also a specialist forensic pathologist. Both agreed that it is not possible to be precise (1560.15T). There are factors, that is to say clinical signs, which sometimes, but not always, can be identified, permitting an informed estimate to be made. Even so, reasonable minds may differ on the conclusion that ought to be drawn from those factors (1560.30T). In his report of 20 May 2021 (Exhibit 72), Prof. Duflou referred to certain very general categories of pathophysiology set out in Chapter 2 of Pekka Saukko and Bernard Knight, Knight’s Forensic Pathology (CRC Press, 4^th ed, 2015). In his oral testimony Professor Duflou referred to these categories as “very much the rule of thumb” and “a rough and ready assessment” guide (1562.30 - .35T). Both Prof Duflou and Dr Clifton agreed by reference to these rules of thumb that the clinical findings made by Station Officer Kearney, that is to say, that Teah’s body felt cold and her arm is stiff, placed the matter in Knight’s third category, of a time of death in the broad range of 8 to 36 hours preceding his examination (1564.38 – 1565.10T). It will be necessary to return to this issue later in these reasons.

14. Both Dr Clifton and Professor Duflou also agreed that the fatal stab wound would have involved the use of considerable force given the bony injury to the underside of the skull. Assessing it in a range from low to high, moderate to high force would be required to inflict the damage seen at post-mortem to the cortical surface of the skull (1581.35 – 1582.5T).

15. Quite clearly, from this narrative of fact, all of which is based upon essentially undisputed evidence led at the special hearing before me, the only rational conclusion available is that Teah was stabbed to death in the sanctity of her own home and in the presence of her 14-month-old daughter by an assailant armed with a knife or like bladed instrument who violently attacked her, stabbing her three times with considerable force, in circumstances where she was unable to offer any defence.

The indictment

16. The Crown have charged the defendant, Jesse Green, with Teah’s murder, and two other offences occurring on 27 and 28 March 2018 on an indictment alleging the following matters that:

Count 1: on 28 March 2018 at South Tamworth in the State of New South Wales he did murder Teah Luckwell;

Count 2: on 27 March 2018 at Oxley Vale in the said State, he did break and enter the dwelling house at 21 Ernest Street, and therein committed a serious indictable offence, namely larceny, in circumstances of aggravation, namely, that persons were inside the said dwelling house; and

Count 3: on 28 March 2018 at South Tamworth in the said State, did use an offensive weapon with intent to commit an indictable offence, namely, assault.

The third count refers to an incident alleged to have occurred at premises at 48 Robert St, South Tamworth.

Fitness to plead

17. After Mr Green had been committed for trial to this Court, but before he had been arraigned, on 9 December 2019 following a fitness hearing on that day, Button J found Mr Green unfit to stand trial and made orders referring the matter to the Mental Health Review Tribunal. Upon periodic review since by the Tribunal, Mr Green has remained unfit to be tried and in the opinion of the Tribunal he remains unlikely to become so fit. Given these relevant determinations and the advice of the Director of Public Prosecutions that further proceedings were to be taken in respect of the offences, the Court has conducted a special hearing about the charges commencing, after an adjournment due to the lockdown following the outbreak of the Delta variant of COVID-19 in Sydney, on 5 July 2021.

Nature of a special hearing

18. It is important to bear in mind that by force of s 54 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (“the Act”), a special hearing is a hearing for the purpose of ensuring, despite the unfitness of the defendant to be tried in accordance with the normal procedures, that the defendant is acquitted unless it can be proved beyond reasonable doubt that, on the limited evidence available, the defendant committed the offence charged, or another offence available as an alternative to the offence charged. The reference to “the limited evidence available” does not mean that there is an expectation that the Crown will not be in a position to lead a substantial body of evidence to make good its case, as the circumstances of the present case so amply demonstrate. Rather, it means, however much evidence the Crown is able to call, and whatever its probative force, given the inability of a defendant who is not fit to plead to adequately instruct his lawyers, because of his mental illness or impairment, as to the facts that may underpin defences that may be available to him, the identity of the witnesses who can assist the establishment of any defence, the facts and circumstances that may assist in the cross-examination of prosecution witnesses and the difficulty in fully engaging with and meaningfully participating in, especially, a long hearing, there must almost always be limitations or indeed deficiencies in the evidence put before the court to enable it to decide the issues presented to it for determination. It is fundamental that these limitations be borne firmly in mind during the court’s decision-making process of evaluating whether the Crown have proved the defendant committed the offences charged beyond reasonable doubt.

Principles of law

General concepts

19. Under s 56 of the Act, a special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings. Given his unfitness to plead, and by force of s 56(5) of the Act, Mr Green is taken to have pleaded not guilty to each of the offences charged. He is entitled to raise any defence that could properly be raised if a special hearing were an ordinary trial of criminal proceedings: s 56(6). As neither the prosecutor nor defence counsel have made an election for the matter to be determined by a jury, the special hearing is to be determined by me sitting alone. This brings into play s 59(2) of the Act (cf s 133(2) of the Criminal Procedure Act 1986 (NSW)) requiring me to include in my judgment the principles of law I will apply and the findings of fact upon which I will rely in bringing in my verdict under s 59 of the Act. I will set out some principles of law of general application now. Other principles will be referred to during the judgment when I am dealing with the issue to which they apply.

The burden and standard of proof

20. A criminal trial is an accusatory process in the sense that the prosecution must formulate the charges brought against an accused person or defendant and lead in admissible form all evidence necessary to prove the charges beyond reasonable doubt, if it can. In discharging this obligation, the prosecution is not entitled to conscript the defendant as a witness in the prosecution case. In a special hearing, as in a trial, the defendant is entitled to the presumption of innocence. As an aspect of this fundamental civil liberty, subject to one important exception applicable here to which I will refer in a moment, the defendant is neither required to give evidence nor call any evidence in his own defence. The onus of proof beyond reasonable doubt is fixed immutably on the prosecution.

21. It is important to record that the defendant did not give evidence in the special hearing, although he had that right: s 56(7) of the Act. In common with all members of our community, the defendant enjoys the right to silence, including in court. No adverse inference can be drawn from the exercise by the defendant of the right to silence including his decision not to give evidence at the hearing. However, where there is evidence that the defendant has made statements about the subject matter of the charges out of court, whether exculpatory or inculpatory, they may be taken into account as part of the evidence in the case. Where there is evidence of an exculpatory statement a number of “rules” apply: first, the Crown will not have proved its case beyond reasonable doubt if I accept the statement as true and reliable; second, the same applies if, after an evaluation of all of the evidence, I am left in the position where I consider the exculpatory statement might possibly be true; and third, the Crown will not have proved its case beyond reasonable doubt unless it demonstrates that the exculpatory statement could not possibly be true. Even then no inference may be drawn against Mr Green from the rejection of an exculpatory statement; the Crown will only have proved its case if I am satisfied beyond reasonable doubt by evidence I actually accept from the limited evidence available that Mr Green committed the offence charged (s 59(1)(c)). These considerations are aspects of the burden and standard of proof in criminal proceedings.

22. However, to the extent to which Mr Green may have made inculpatory statements about any of the charges, I am entitled to take them into account as admissions against interest and accordingly as evidence favourable to the Crown.

23. In considering whether the Crown have proved its case beyond reasonable doubt, it is necessary for me to consider the evidence in the trial impartially and dispassionately. I must not let sympathy or emotion affect my judgment.

Identification of the real issues for determination

24. The criminal trial is also an adversarial proceeding. This means that the parties, including Mr Green by his counsel, are entitled to identify the issues really in dispute which need to be determined in the special hearing. The parties are entitled to choose the ground on which to fight their case. This has practical consequences. During the hearing I heard evidence concurrently from two forensic psychiatrists, one called on behalf of each of the prosecution and the defence (1753 T). The prosecution called Dr Stephen Allnutt and the defence called Dr Gerald Chew. Although all questions of fact are matters for my decision and it is impermissible for me to delegate, as it were, my responsibility to even expert witnesses, as I will explain during my reasons, both experts are in agreement about the issues to which their opinions are relevant. Each has expressed an opinion which, if accepted by me, would support, in respect of each count on the indictment, a special verdict of act proven but not criminally responsible (s 59(1)(b)) on the basis of the mental health impairment defence established by s 28 of the Act. I would need a good reason to reject the unanimous opinion of relevantly qualified experts based wholly or substantially on their common area of expertise. It is appropriate to record here that Mr Costello, the learned Crown Prosecutor, in his closing submissions argued that my verdict on each count should be the special verdict of act proven but not criminally responsible.

25. I should also say that on behalf of Mr Green, Mr Bouveng of learned counsel strongly submitted that, with the exception of Count 2, the Crown have failed to prove to the requisite criminal standard that Mr Green committed the physical act constituting an essential element of each offence with which he is charged.

Mental health impairment defence and the issues

26. These battle lines crystalize the ultimate issue for my determination. Mr Bouveng, in respect of each count, argues that my verdict should be that Mr Green is not guilty of the offence charged in Counts 1 and 3 in accordance with s 51(1)(a); he did not make any formal concession on Count 2, but, quite properly acknowledged the strength of the Crown case in respect of it, submitting that the ss 28 and 59 special verdict was the likely outcome; while, as I have said, Mr Costello contended for the special verdict in each case. The special verdict may be broken into two parts. The first part is whether the Crown has proved beyond reasonable doubt the act constituting the essential physical element of each offence. If not, my verdict must be one of not guilty of each of the offences charged.

27. If I find the act proven to the requisite criminal standard it is then for Mr Green, by his counsel, to prove on the balance of probabilities that he is not criminally responsible for any of the offences charged by reason of the mental health impairment defence established by s 28 of the Act. According to the terms of s 28, a person is not criminally responsible for an offence if, at the time of carrying out the act constituting the offence, the person had, inter alia, a mental health impairment that had the effect that the person –

1. Did not know the nature and quality of the act, or

2. Did not know that the act was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong).

28. Whether the defence applies is a question of fact to be determined on the balance of probabilities (s 28(2) of the Act). This is the standard of proof applicable to civil cases and requires no more than proof that the facts necessary to make out the defence are more likely than not. This standard is much less stringent of exacting than the criminal standard of proof beyond reasonable doubt.

29. Section 28(3) of the Act makes clear that it is for the defendant, here Mr Green, to prove the defence. For the subsection provides, “until the contrary is proved, it is presumed that a defendant does not have a mental health impairment … that had [the necessary legal] effect” (my emphasis). The provision is expressed this way because not every mental health impairment will have the necessary effect on the defendant. But given the joint opinion of the forensic psychiatrists, Mr Green should have little difficulty in establishing the defence, if the question arises. And the question only arises, as I have said, if the Crown proves beyond reasonable doubt the relevant act constituting the physical element of the offence. Should it be necessary for me to consider the mental health impairment defence, it will not be necessary for me to remind myself of the matters required to be explained to a jury by s 29 of the Act: s 6 of the Act, which I need not set at this stage.

30. Although the Act, which received the Royal Assent on 23 March 2020, made changes to the previous law relating to the mental health defence in force when Teah was killed, counsel are agreed that the provisions of the Act apply in this case by virtue of the operation of Schedule 2, clauses 3 and 5 of the Act. That is because the question of whether Mr Green was mentally ill, or rather suffered a mental health impairment, in a way that raised a question about the “availability” of the defence, was not raised until the receipt of the reports of Dr Chew, on 5 May 2021, and Dr Stephen Allnutt, on 14 June 2021, which dates are after the proclaimed commencement of the Act on 27 March 2021. I will proceed on this basis.

31. Each of the three counts on the indictment are offences of specific intent. Ordinarily, to prove each offence, it would be necessary for the prosecution to prove both the physical element and the mental element of intent for each offence to the requisite criminal standard. As is well known in the case of murder, Count 1, the requisite intent the Crown is required to prove beyond reasonable doubt is that when Mr Green committed the act which caused death he did so with the actual specific intent of either killing or inflicting grievous bodily harm upon Teah. The second count involves the intention to break and enter the dwelling house. And the third count includes the intent to commit an assault.

32. That the s 28 defence has been raised on the evidence affects the order in which the issues are to be determined. The first stage is to decide whether the Crown has proven the act constituting each offence to the criminal standard. At this stage, the question of whether Mr Green suffered a mental health impairment at that time is irrelevant. If I am so satisfied as to the physical element, I am required to proceed directly to consider whether Mr Green is not criminally responsible for his actions and their consequences by deciding whether he has established the mental health impairment defence on the balance of probabilities: Hawkins v the Queen (1994) 1979 CLR 500; [1994] HCA 28; R v Minani (2005) 63 NSWLR 490; [2005] NSWCCA 226 at [32]. If I am satisfied about the availability of the defence, the question of intent does not arise at all.

Each count to be considered and determined separately

33. The three counts have been tried together largely for reasons of convenience. However, as there are three counts, each count must be considered separately. I must return a verdict of not guilty in respect of each separate offence if I am not actually persuaded by evidence I accept that the Crown has proved beyond reasonable doubt that Mr Green committed the act constituting the physical element of the offence.

34. Moreover, acceptance of the Crown case beyond reasonable doubt in relation to one charge does not legally require me to accept the Crown case in respect of the others. I am required by law to consider each count or charge separately. But in considering each count I am entitled to consider the whole of the evidence led at the special hearing. The same item or body of evidence may be relevant to proof of more than one count.

35. It would be impermissible to reason that if the Crown prove that Mr Green committed one offence, he must have committed another or the others.

Proof in a circumstantial case

36. The Crown has made very clear that in relation to Count 1 that its case is entirely circumstantial. There is no direct evidence that Mr Green is the person who inflicted the fatal stab wound, and the other wounds, on Teah. Nor has he made any admissions to anyone that he did. There is no forensic evidence linking him to the scene of the fatal stabbing, or to Teah’s body. However, it is not necessary for proof beyond reasonable doubt for the Crown to produce either an eyewitness, an admission of guilt or other direct evidence. Instead the Crown asks me to draw the inference that Mr Green must have killed Teah from all of the circumstances which have been proved.

37. Where a case is based upon circumstantial evidence the Crown will have failed to prove its case beyond reasonable doubt unless the conclusion that Mr Green killed Teah by stabbing her is the only rational inference that can be drawn from the whole of the circumstances actually established to my satisfaction by evidence I accept. To put it another way, I cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other conclusion is reasonably compatible with the circumstances.

38. It is of critical importance when considering such a case that all of the circumstances established by the evidence must be considered and weighed together, not individually or in a piecemeal fashion. The probative force of a body of evidence may be cumulative. In such circumstances, it is unnecessary and indeed pointless to consider the degree of probability of each item of evidence separately.

39. In a circumstantial case it is essential to apply the burden of proof strictly. That means that the essential matter in issue here, whether Mr Green killed Teah by stabbing her must be proved beyond reasonable doubt, always bearing in mind the presumption of innocence, and the limited evidence available in a special hearing.

40. But this does not mean that every fact – every piece of evidence – relied upon by the Crown to support the inference must itself be proved beyond reasonable doubt. As I have said, the probative force of a body of evidence may be cumulative. But, if having considered all of the circumstances established by the evidence together as a whole, there is a rational inference available that Mr Green did not kill Teah, open upon the evidence, even as a reasonable possibility, I must bring in a verdict of not guilty of murder. As the case has been presented, I am asked to consider whether it is a rational inference reasonably available on the whole of the evidence that some other named person may be the killer.

41. For practical purposes, sometimes a circumstantial case is described as a “link in the chain” case, on the one hand, or as a “strand in the cable” case on the other. Where the case falls into the former category. It may be necessary for the Crown to prove some of the circumstances relied upon beyond reasonable doubt because they are indispensable intermediate facts. In the latter category, it is only the elements of the offence itself which need to be proved beyond reasonable doubt. It is not necessary for the various factual “strands” to be proved to that high standard. This is because of what I have referred to as the cumulative effect of a body of evidence. The metaphor of “strands in the cable” is well understood. While each individual strand may be of insufficient strength to support the weight of the Crown case, when bound together the whole may be of greater probative force than the sum of its parts. I did not understand Mr Bouveng to dispute that this was a “strands in the cable” case.

42. That the case relies upon indirect, circumstantial evidence does not mean that it is weaker than a case that relies upon direct evidence or eyewitness accounts. In either case, of course, the question remains the same, has the Crown proved its case beyond reasonable doubt?

43. As I have said, for the standard of proof to be discharged the Crown must prove by reference to the whole of the circumstances established by evidence I actually accept that Mr Green was the person who stabbed Teah causing her death is the only rational inference that the circumstances would enable me to draw. If there is another rational inference consistent with Mr Green’s innocence of that act, the Crown case fails. But it is important for me to bear in mind that for an inference to be rational or reasonable, it “must rest upon something more than mere conjecture. The bear 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 of the facts in the evidence”: The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 [46] – [47]. In this context it is vital to bear in mind that an inference is a deduction from facts established by the evidence. Proof of facts A, B and C may permit one to infer or deduce fact E. An inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are facts established by the evidence from which the competing inference consistent with innocence may be drawn. But it is sufficient if the available inference consistent with innocence appears as a reasonable possibility. Even if I would not have been persuaded to draw the inference myself.

44. Counts 2 and 3 both fall into a somewhat different category. The proofs relied upon by the Crown are not wholly circumstantial inasmuch as, in respect of each of them, there is some forensic evidence linking Mr Green to what occurred at the respective premises. He made frank admissions in relation to Count 2 to Dr Allnutt and Dr Chew. He also made what may be regarded as a partial, implied admission to Dr Allnutt in relation to Count 3. However, to the extent that indirect circumstances are also brought to bear in proof of each count and the Crown invites me to engage in an inferential reasoning process to discharge its onus of proof, I will apply the principles of law concerning circumstantial evidence I have set out.

45. Finally, if I am not satisfied that Mr Green committed the act forming an element any of the charged offences beyond reasonable doubt he is entitled to be acquitted by me returning a verdict of “Not Guilty”: s 59 of the Act.

Necessary warnings

46. Section 133(3) of the Criminal Procedure Act requires a judge sitting without a jury to take into account any warning that would be given to a jury in the case. In my view this law applies to a special hearing by dint of s 56(1). I will indicate such warning as may be applicable to particular evidence or a particular issue when I deal with it.

47. The evidence of Mr Allan and Mr Morgan has been led in the Crown case to prove a circumstance which may be of some importance, that it was Mr Green they saw heading east across David St and along Robert St as they walked down David St in a generally south-westerly direction in the early morning of 28 March 2018. It will be necessary to deal with their evidence in some detail in the appropriate place. Their evidence should be classified as “identification evidence” because, if accepted by me, it demonstrates that they, or one or other of them, recognised Mr Green walking in the direction of Teah’s home shortly before the time when the Crown say she was killed. It is not necessary at this stage to descend into the detail of their evidence, which is significantly challenged by Mr Bouveng on behalf of Mr Green. However, I remind myself that for many reasons identification evidence must be assessed with particular caution before it can be accepted. At this stage it is enough for me to say in accordance with the provisions of s 116 Evidence Act 1995 (NSW) that there is a special need for caution before accepting their identification evidence. I will explain the reasons for that caution both generally and in the circumstances of this case when discussing their evidence when I deal with Count 1.

Synopsis

48. In the balance of this judgment I will consider the issues I have identified in this order:

• first, has the Crown proved beyond reasonable doubt that Mr Green committed the act necessary to establish Count 2;

• secondly, has the Crown proved beyond reasonable doubt that Mr Green committed the act necessary to establish Count 3;

• thirdly, has Crown proved beyond reasonable doubt that Mr Green committed the act necessary to establish Count 1, Teah’s murder;

• fourthly, has the defence of mental health impairment been established on the balance of probabilities in respect of any count otherwise proved;

• fifthly, if the fourth issue is determined in the negative, has the Crown established beyond reasonable doubt the necessary mental element for each count otherwise proved;

• and finally, I will then bring in my verdict for each count.

49. Obviously, it may not be necessary to answer each of the questions I have posed in respect of all counts. For instance, if I am not satisfied beyond reasonable doubt as to proof of the act necessary to constitute a charged offence it will be unnecessary to answer any other question in respect of that count. Moreover, if the mental health impairment defence is resolved favourably to Mr Green in respect of any count, it will be unnecessary and inappropriate to go on to consider whether the mental element for any such offence has been established.

49. As I hope will be clear as I develop my reasons, the evidence relevant to Count 3 spans the Crown case for Count 1. That is to say, the Crown relies on two discrete episodes of conduct on the part of Mr Green to prove he committed the act constituting Count 3. It is the Crown case on Count 1 that Mr Green stabbed Teah fatally in the interval between those episodes. I acknowledge that there is scope for some confusion dealing with Count 3 separately and in advance of Count 1 when the facts contended for by the Crown flow more or less on a temporal continuum. However, it seems logical to me to separate the matters rather than dealing with them in a strictly chronological order. I will keep in mind throughout that certain circumstances the Crown seeks to establish in respect of Counts 2 and 3 respectively are also relevant to Count 1 as part of the circumstantial case. I will specify the circumstances actually established to my satisfaction by evidence I accept when dealing with Count 1.

Count 2 – Aggravated break and enter

51. It will be recalled that the allegations constituting the second count on the indictment are that on 27 March 2018 at Oxley Vale Mr Green broke into and entered the residence at 21 Ernest Street and while there committed a serious indictable offence, namely, larceny in circumstances of aggravation, being that he knew persons were inside the dwelling house. This offence is contrary to s 112(2) Crimes Act 1900 (NSW). The factual elements of the offence may be summarised as:

1. Mr Green broke into and entered the dwelling at 21 Ernest Street. It is unnecessary that the entry is forced. It’s enough if he enters through an unlocked door;

2. While in the dwelling house he took and removed property for his own use; and

3. The circumstance of aggravation is he knew there were persons in the dwelling (s 105A(1)(f) Crimes Act). For the purpose of this element, if persons were in fact present at the time of the break-in, as is the case, Mr Green is presumed to have known that fact unless he proves that he had reasonable grounds for believing the premises were vacant (s 105A(2A) Crimes Act).

Most of the evidence to establish Count 2 was tendered by way of a summary under s 50 of the Evidence Act (Exhibit 7). As I have said, there is no real dispute about this matter.

52. Mr Green normally resided with his mother at Calala Lane, Tamworth. He was home when his mother returned from work at or before 5:30 p.m. on Tuesday, 27 March 2018. Between 6 and 6:30 p.m. Mr Green left the house without telling his mother where he was going. He was picked up by a friend, Nikki Crisp. Ms Crisp had known Mr Green for some years.

53. At about 6 p.m. on 27 March 2018, Mr Green had messaged Ms Crisp asking for a lift to his father’s place, which is in Mountview Crescent, Oxley Vale. Ms Crisp was happy to oblige and picked Mr Green up from his mother’s place at about 6:10 p.m..

54. Mr Green’s father, David Green, states that Mr Green arrived at his place around 4:40 p.m. He must be wrong about the time and I prefer the evidence of Ms Crisp given it is corroborated by the receipt of Mr Green’s message to her at 6 p.m. and by the evidence of Mr Green’s mother. Mr David Green states that he and his son had a beer and a yarn, and I infer he “moved [his son] on” after an hour or so.

55. This is broadly consistent with the statement of Mark Morley, a friend of Mr Green who also lived in Mountview Crescent. Mr Morley said he saw Mr Green at about 7 p.m. at his place and he was there for about 45 minutes. Although Mr Morley had the impression that Mr Green was on his way to his father’s place, again I think he is mistaken. The probabilities strongly suggest that he called into Mr Morley’s after he had been at his father’s place. This impression is reinforced by Mr Morley’s statement that he gave Mr Green directions to the home of another resident of the Oxley Vale area when Mr Green was leaving.

56. Thomas Allen and his partner, Chloe Tully had been living in Manila Road, Oxley Vale for about four months by 27 March 2018. Their address is quite close to Mr and Mrs Drews’ Ernest Street address. Mr Allen said that Mr Green showed up between 9:30 p.m. and 10 p.m. and stayed for about an hour, talking. It seems likely that the times are not precise. Mr Green was angling for a place to spend the night, but Mr Allen moved him on, giving him $20 for a taxi. Mr Green then left without calling the taxi.

57. Ms Tully also says that Mr Green showed up at about 9:30 p.m. or 10 p.m. She said he stayed for about 30 or 40 minutes. After Mr Green left Ms Tully made it clear to Mr Allen that there was no way the former would be staying the night. Mr Allen and Ms Tully also stated that they thought they heard someone moving around near their front door at about 1 a.m., who they assumed was Mr Green. When Mr Allen went to check, there was no one there. Had someone been there it was certainly not Mr Green as other evidence conclusively demonstrates that Mr Green was back in the Tamworth town centre by about 11:45 p.m. It also establishes that he remained generally in the South Tamworth area until he left by train for Sydney mid-morning on 28 March 2018.

58. By 27 March 2018, Janice and Ian Drew had lived at their Ernest Street home for about 31 years. It is a two-storey brick home on a block that slopes up from the street. Their main living areas are on the upper level. There is a sloping driveway next door, to their right as you view their house from the street. On their side of the boundary there is a lawned area following the same slope as the neighbour’s driveway and supported by a brick retaining wall in steps as it runs up the slope. Mrs Drew told police that one can reach the balcony railing on the upper level of the house by standing on top of the retaining wall near the top of the slope. The master bedroom and the adjoining loungeroom occupied the front of the home on the upper level, opening onto the balcony. At the back of the home beyond the kitchen is a family room where the couple watch TV, as they were on the evening of 27 March 2018.

59. Access to the balcony from the master bedroom is through a glass sliding door and sliding security screen door. Ms Drew said that the glass sliding door was open and I infer that the security door had been left unlocked as there was no sign of forced entry.

60. Mr and Mrs Drew had been watching a movie which finished at about 10:40 p.m. Mrs Drew turned off the TV and they went to the bedroom to retire for the night. As they approached the bedroom, they noticed that the internal bedroom door which they normally left it open was closed. They entered the bedroom, turning on the light and saw that the security screen door was open, Mrs Drew’s handbag was on the bed, not where she left it, and two of the bedroom drawers were open. On closer inspection they noticed that Mrs Drew’s purse was missing, as was Mr Drew’s wallet. Mrs Drew called the police.

61. While waiting for police to attend the couple were able to compile a list of their missing property including cash totalling some hundreds of dollars, various credit cards and other personal cards. Mrs Drew also noticed a black and red jewellery box was missing from the dressing table. They later realised the car keys were also missing but were relieved to discover the car was still in the garage.

62. Over the next few days while walking in the vicinity of their home Mr and Mrs Drew recovered some items of their property which apparently had been discarded by the intruder. This included the jewellery box, the contents of which were strewn around a local park and Mr Drew’s wallet, found in a neighbour’s front yard. Another neighbour, previously unknown to them, returned the small purse containing some of Mrs Drew’s personal cards, which the neighbour had found while walking her dog.

63. Crime scene officers carried out forensic testing, inter alia, on the veranda rail and the recovered jewellery box. An impression of Mr Green’s left palm print was recovered from the veranda rail on the upper level and of his left middle and index fingers from the jewellery box.

64. The burglary at Ernest Street must have occurred between about 9:30 p.m. and 10:40 p.m. Mrs Drew had made a cup of coffee in the kitchen at about 9:30 and from there she would have been in a position to notice if the bedroom door had been closed. That timeframe also generally fits in with the chronology that can be garnered from the accounts of the persons Mr Green visited in the Oxley Vale area on the evening of 27 March 2018, even if their estimates of time are not precise. What is important is that their accounts place Mr Green in the immediate vicinity of Ernest St at the relevant time. According to the statement of Gary Adams, a taxi driver who picked Mr Green up from central Tamworth at 11:55 p.m., and CCTV footage, Mr Green was not back in central Tamworth until about an hour after the break-in was discovered by the Drews.

65. The fingerprint evidence, including the palm print on the veranda rail, which is indicative of a convenient point of entry to the upper level of the premises, and on the jewellery box, discarded in a park nearby, strongly point to Mr Green as the perpetrator.

66. The evidence led particularly in relation to Count 1 amply demonstrates that Mr Green spent a large portion of the early hours of 28 March 2018 in the company of the residents of unit 7/54-62 Robert Street, South Tamworth. CCTV footage (Exhibit 1) depicts him frequently coming and going from that address during that period. Senior Constable Christopher Kentwell, attached to Tamworth Crime Scene, was involved in a crime scene examination of those premises commencing at 10:20 a.m. on 5 April 2018 (492.19T). During this search, Mr Drew’s driver’s license and CBA credit card were recovered (Exhibit 21 197 -198 and 202). Although Mr Green was not the usual occupant of that residence, the location of that property at that address, taken in conjunction with the other evidence to which I have referred, leads me to conclude that it is more likely that Mr Drew’s cards were taken to that address by Mr Green rather than by the occupants of those premises, and it was not submitted otherwise.

67. Finally, Mr Green admitted this break-in to both Dr Chew and Dr Allnutt. To Dr Chew (Exhibit 75; pages 5-6) he admitted “doing the break and enter” on 27 March 2018, a reference to the Ernest Street charge, Count 2. And to Dr Allnutt (Exhibit 74; page 2) he said:

“… he believed he was at his father’s house, then went to Tom Allen’s house and broke into a house (he was not sure whose) for money”.

68. I am satisfied beyond reasonable doubt that the Crown have proved that Mr Green committed the acts constituting the physical element of the charge contained in Count 2. So far as the circumstances of aggravation are concerned, Mr Green has not satisfied me that he had reasonable grounds for believing there was no one home. On the contrary, the bedroom door was open when he entered, and he must have heard the noise of the TV in the background. From other evidence in the Special Hearing he was adept at “creeping”, an expression I understand from the evidence as denoting the ability to unobtrusively break into dwellings while they were occupied and move about quietly within them so as not to be detected by those occupants. I infer that he must have quietly closed the bedroom door to avoid detection.

69. As I have said, if necessary, I will deal with the relevant mental element later in these reasons, after considering the mental health impairment defence.

70. I will turn now to consider Count 3.

Count 3 – Using an offensive weapon with intent

71. Count 3 in the indictment charges Mr Green with committing an offence contrary to s 33B Crimes Act of using an offensive weapon with intent to commit an indictable offence. The relevant indictable offence is assault. The person the Crown says Mr Green intended to assault is Ms Tanya O’Toole, one of the residents of 48 Robert Street, South Tamworth.

72. The legal elements of this offending may be broken up into the following constituent parts:

1. Mr Green used an offensive weapon;

2. With intent to commit an assault on Ms O’Toole. Assault is an indictable offence.

73. The first element is the physical element of the offence. The second is the mental element of the offence which is the intent to actually bring about a specific result, namely, the assault of Ms O’Toole. The mental element here is the intention to cause Ms O’Toole to fear or apprehend that she will be subject to immediate and unlawful violence. Mr Bouveng submitted that Mr Green’s state of intoxication is relevant to the question whether he had in fact formed the necessary specific intent for the Count 3 offence: ss 428B, 428C and 428F Crimes Act. But given that the mental health impairment defence has been raised it is unnecessary for me to consider the aspect or element of intent at this stage. My present focus must be on whether the Crown have proved beyond reasonable doubt Mr Green used an offensive weapon in a threatening way. To use, is of course, an active verb. Like all words it may reasonably bear differing shades of meaning depending upon the context in which it appears. In the present context it embodies ideas such as putting the offensive weapon into service or applying the offensive weapon to one’s own purpose.

74. The Crown case is that Mr Green lunged or launched himself toward Ms O’Toole who was standing behind the screen door in her open front doorway, “in a strike mode” immediately before she quickly stepped back and slammed the door shut (263.35 - .46T). The Crown case is that Mr Green had a weapon of some sort in his hand. Ms O’Toole said that she heard what she took to be the impact of the weapon on the metallic screen door (264.5T). At the time the weapon appeared to her “like a baton, more or less” (264.13T). When she inspected the screen door later, she thought the flyscreen mesh had been “cut like a knife would slice it” (264.15T). The weapon Ms O’Toole drew for police on 29 March 2018 looked very much like a policeman’s baton or truncheon. Photographs taken by forensic police (Exhibit 22, 6 – 10) indeed depict a cut in the flyscreen mesh, which from Ms O’Toole’s evidence, I infer was not there previously. They also depict a bend or deflection in the metallic insert on the screen door at about the level where a penetration or gauge mark appears on the solid wooden front door. So far as one can tell from a lay perspective, the penetration appears more consistent with a sharp-tipped weapon than a rounded blunt baton. On later inspection, Ms O’Toole said the mark on the wooden door looked “like a stab mark, which was probably at my chest level” (268.40T).

75. Obviously, if I am satisfied of the facts deposed to by Ms O’Toole beyond reasonable doubt, the Crown will have proved that Mr Green committed the act constituting the physical element of Count 3. However, on behalf of Mr Green, Mr Bouveng submits that the evidence does not rise to that level. Accordingly, it is necessary to descend into the detail of the evidence as it concerns Count 3. As I have said, the Crown submit the facts directly relevant to Count 3 form part of the sequence of events also relevant, indirectly, to proof of Count 1.

76. After arriving back in central Tamworth just before midnight, CCTV footage (Exhibit 1) depicts Mr Green walking along the street on his own. His attire is clearly depicted. He was wearing a white t-shirt bearing a motif depicting a cigar-smoking Michael Jordan in his Chicago Bulls match strip, black shorts, black baseball cap, white socks and black thongs. Indeed, he had been so attired as shown in CCTV footage of his movements captured as early as 11:16 a.m. on 27 March 2018. From the central Tamworth footage, he was also sporting a black backpack and was using what appeared to be a pen-torch like the purple torch seized by police when his home was lawfully searched on 5 April 2018. When I first viewed this footage in court, I was struck by something distinctive to my mind about Mr Green’s gait. It is difficult to break this down into its constituent parts. He seemed to be taking short, staggering steps while somewhat up on his toes. At first, I was inclined to put this down to tiredness. After all, on the evidence he had been on the go “all day”. However, it occurred to me that his “walk” was probably due to his footwear – socks and thongs. It is difficult to take long, purposeful strides shod in that style. That impression was borne out by other subsequent footage depicting his movements.

77. From central Tamworth he called a taxi which took him to 7/54 – 62 Robert Street, South Tamworth, via McDonalds where he purchased a meal. The complex at 54 – 62 Robert Street has been referred to in the proceedings as the Robert Street flats. After arriving by taxi, he entered the Robert Street flats through the western carpark still carrying his McDonald’s bag in his left hand. The time is 12:07 a.m. on 28 March 2018. He entered Unit 7, the dwelling of Mr Bennie McCarthy and Ms Shinara Russell, with whom he was acquainted.

78. The CCTV footage from multiple cameras at the Robert Street flats records various movements of Mr Green, Mr McCarthy and Ms Russell, not always together, to and from Unit 7. It is not necessary at this stage to detail all of the coming and goings of Mr Green in particular from the Robert Street flats. They are all carefully documented in the evidence, especially Exhibit 1. While these comings and goings are relevant for some purposes, it is not necessary to dwell upon them now.

Events before 4:22 am

79. The evidence demonstrates that after an adjustment is made for an error in the timing of the recording of the security cameras at the Robert Street flats, the relevant period for the initiation of Count 3, and the occurrence of Count 1, on the Crown case is 4:06:25 when Mr Green exits the Robert Streets flats on his own through the western carport. And his return at 4:22 a.m., a period of about 14 minutes and 30 seconds. By this time Mr Green has added a dark coloured Adidas brand sports jacket to his attire that he purchased from Mr McCarthy for $50. After this exit, I am satisfied that he headed east along Robert Street in the general direction of both 48 and 34 Robert Street. This is confirmed because he captured by a second and central CCTV camera at the Robert Street flats passing the entrance to the pathway at the eastern carpark to the Robert Street flats walking in an easterly direction.

80. 48 Robert Street is the third residence on the left after the Robert Street flats as one heads east on Robert Street. Ms O’Toole was awoken from sleep at about 4:10 a.m. when she noticed the ceiling fan in her bedroom turning off (261.50 – 262.5T). She noticed that the dog next door was barking, but her immediate thought was there was a power problem because a ceiling fan was slowing down. She cannot now recall checking the light, but she assumed there was “a power problem” (262.10T). And she decided to go outside to check the fuse box which was located on the exterior eastern wall of her home near her driveway. On her first inspection she noticed that the main switch was off, and she turned it back on and went inside. She “checked the time” and recalls it being “roughly” 4:10 (262.4T).

81. When she came back inside, she flicked the light switch, but the light did not come on. She could see other homes with lights. Thinking it strange she went back outside to check the box again. She then noticed “everything was turned off”. She turned everything back on and feeling very uncomfortable went back inside (262.30T). She did not see anyone outside on either occasion, but subsequent forensic investigation recovered traces of DNA consistent with Mr Green’s profile from three of the fuse switches in the power box at 48 Robert Street. These were the “main switch”, the “safety switch lights”, and “main switch HWS” (523.25 - 524.30T). I take “HWS” to be hot water service. The report of the Forensic and Analytical Science Service indicated that the DNA recovered originated from Mr Green to a very high degree of probability. I am satisfied that he is the person who turned off Ms O’Toole’s power.

79. It is the Crown’s case that Mr Green, perhaps having been disturbed by Ms O’Toole unexpectedly emerging from her front door, desisted from his intentions at 48 Robert Street, whatever they may then have been, left those premises and continued east along Robert Street, across David Street to Teah’s home at 34 Robert Street. I will deal with this submission when evaluating the evidence in relation to Count 1.

80. Mrs Robyn Wheeler is the dog-owning neighbour at 50 Robert Street, immediately to the west of no. 48. The dog in question is a Maltese Terrier. She was awoken at 4:05 by her dog barking and growling “really violently” (241.35T). She looked at the time. She noticed a sensor light had come on at the back of her house, but on investigation she could not “see anything out there”. She then looked out the bedroom window at the front of the house and saw a man “about 6 ft tall with a black hoodie, dark grey shorts and white to grey joggers” (242.5T). The man was out the front of no. 48 with a torch which he was shining in the windows. He then disappeared down their driveway. She waited and watched for a while and saw nothing more before going back to bed (242.33T). Her husband, Rodney Wheeler also gave evidence, but given the content of it he does not seem to have awoken until later and I will mention his evidence below.

81. Mr Green is next seen on CCTV footage at the Robert Street flats at 4:22 a.m. He does not enter on this occasion by either the eastern or western carpark but appears to have clambered over a fence at its eastern extremity, making his way along the internal pathway towards Unit 7. At this time, he is seen to be bare-chested wearing neither t-shirt nor Adidas jacket. He is carrying something, perhaps the clothing he has shed. This is a noticeable change. At all times since acquiring the Adidas jacket from Mr McCarthy, he had been depicted wearing the same white t-shirt under the dark coloured Adidas jacket.

An earlier break and enter at 48 Robert Street on 24 March 2018

85. To put in context disputed evidence about Count 3 it is necessary at this stage to say something of the evidence in relation to an earlier break and enter at 48 Robert Street which occurred in the early hours of Saturday, 24 March 2018. Mr McCarthy was arrested on that charge on 5 April 2018 and subsequently pleaded guilty to it (571.20; 575.10 - .45T). Ms O’Toole cannot remember whether it occurred on Saturday the 24^th or Sunday the 25^th, but said it happened at about “4:30, 5 o’clock in the morning” (269.26T). She said one of her phones and a set of car keys were stolen from her home. Her former partner Mr James Madden had been residing with her because of concerns surrounding a spate of “break and enters … going on at that time” (271.9T). She did not report either event to the police until 29 March 2018.

86. Mr Madden gave evidence of the earlier break-in which he said occurred in the early morning of Saturday, 24 March 2018 just before 6 a.m. While staying at the premises he had been sleeping “in the back sunroom” (289.30 - .42T). He was awoken by a security sensor light illuminating at the back door. He got up to investigate and came face to face with the intruder. There is no issue that this was Mr McCarthy (290.20T). Mr McCarthy kept walking out the back door saying “sorry” as he left (292.5T). Mr Madden, as he was entitled to do, managed to strike him in the nose as he was leaving (292.20T). Mr McCarthy ran down the driveway of 48 Robert Street and turned right into Robert Street heading in a westerly direction with Mr Madden in pursuit (292.30 - 39T). Mr Madden saw Mr McCarthy running into the Robert Street flats (293.5T). There was some confusing evidence about which of the entrances Mr McCarthy used which is neither here nor there. Mr Madden broke off his pursuit. He said three mobile phones, keys to his daughter’s Nissan ute, a set of house keys and his wallet were stolen (293.20 - .50T). The keys to the ute are of particular relevance as to the determination of the central facts underpinning Count 3, summarised by reference to Ms O’Toole’s evidence above.

87. Mr McCarthy’s evidence plays some not insignificant part in the determination of whether the Crown have proved the facts underpinning Count 3 beyond reasonable doubt. In this regard it is necessary to give myself a warning of a type I would be required to give to a jury charged with the responsibility of bringing in a verdict on this count in an ordinary criminal trial (s 165 Evidence Act). Mr Bouveng has submitted that Mr McCarthy’s evidence may be unreliable for two principal reasons; the first is that when this event occurred, Mr McCarthy had a serious methylamphetamine addiction and was using two or three points per day. He had used ice more than once in the early hours of 28 March 2013. I accept that the perception of a person who is intoxicated, including by the use of illegal drugs, may be altered such that his ability to lay down an accurate memory and recall it reliably may be adversely affected. Secondly, Mr McCarthy benefited from agreeing with the police to give evidence against Mr Green in relation to the charges arising out of the offending of 24 March 2018. While the facts relating to that matter would have supported a charge of aggravated break and enter like the charge Mr Green faces in relation to Count 2, Mr McCarthy’s charge was “downgraded” to one of break and enter in its non-aggravated form, carrying a lesser maximum penalty. Moreover, he received an additional discount of 5 percent over and above the discount for pleading guilty on the sentence which would otherwise have been passed upon him in the Local Court. Given his own involvement in the events of 24 March 2018 and his retention of the keys to the utility, it may be said that he is a person who might reasonably be supposed to have been criminally concerned in the events giving rise to the prosecution of Mr Green for Count 3. Obviously in relation to these matters there was a risk that Mr McCarthy may have sought to exculpate himself from any involvement in Count 3 and may be concerned to give helpful evidence lest his sentence be increased. I note that it has now been served.

88. These matters do not mean that Mr McCarthy’s evidence is necessarily unreliable or should be rejected. Rather, they require me to scrutinise it with care. If, after a careful evaluation, I am persuaded to accept his evidence, then I am entitled to take into account as reliable evidence with the other reliable evidence in the case in coming to my decision.

89. The other resident of Unit 7 of the Robert Street flats was Shinara Russell, Mr McCarthy’s partner. She made a statement to police on 5 April 2018. When questioned about it in court she volunteered that she was under the influence of drugs while giving the statement (606.31T). Mr McCarthy had also given evidence that Ms Russell was using drugs in the early hours of 28 March 2018 (565.45 - .50T). In cross-examination, Ms Russell agreed that as at March 2018 she was a heavy user of ice. She described it as “a bad habit” (623.35T). She was apparently using two points per day (623.38T). She also said that she had an intellectual disability which in conjunction with her drug use caused problems with her short-term memory (624.15 – 625.5T). She also agreed that “2 points of ice on the one day” would make her stay up all night and in those conditions her memory is “not real good” (sic) (626.28 - .35T). As I have already said in relation to Mr McCarthy, these are matters which are capable of affecting the reliability of a witness’s evidence. From this evidence, it can be said that there are reasons why Ms Russell’s memory for the events of the early hours of 28 March 2018 may be unreliable. These matters do not mean that her evidence must be rejected but indicate that one must be cautious when evaluating her evidence before deciding it is acceptable. Having exercised that caution, if I am satisfied that on this occasion her account can be relied upon then I am entitled to take it into account in deciding the case.

Events after 4:22 a.m.

90. I gave leave under s 32 of the Evidence Act for Ms Russell to refresh her memory by reference to her statement of 5 April 2018. Having read the statement, she was able to say that when Mr Green first arrived at Unit 7, he was wearing white t-shirt with a photo on the front but she was unable to say of whom, and she was unable to remember anything else about his attire. She said he was carrying a bag and that sometime when he was there she saw him handling fabric gloves and a mask (620.15 - .25T). She also said, “I think he pulled out a knife that night” (611.5T), which evidence I allowed over the objection of Mr Bouveng. Ms Russell was unsure of how long Mr Green stayed at Unit 7. Her evidence was that Mr Green wanted Mr McCarthy to accompany him “creeping”, but the latter refused. Although her evidence was indefinite about this, she said that at one stage Mr Green was holding the white t-shirt under his arm while going through Mr McCarthy’s clothes looking for a shirt. That also happened “before he went to Sydney” (614.14T). She said that he ended up wearing the Adidas jacket Mr McCarthy sold him.

91. I regret to say it’s very hard to put much store on Ms Russell’s evidence unless it is supported by other evidence. Quite apart from what she said about the effect of her intellectual disability and drug use on her memory, there were inconsistencies. For instance, in her evidence-in-chief she told the Crown prosecutor that she knew where Teah lived (620.5T) but denied the same thing in cross-examination (633.21T) when questioned about having a reason to want to harm Teah. She told the police that Mr Green told her that he had stolen the ute keys from 48 Robert Street, when she knew Mr McCarthy had. And she claimed that she and Mr McCarthy remained at home after 9 p.m. on 27 March 2018 until daylight the next day when manifestly that assertion is contradicted by the CCTV footage showing them leaving at different times during the hours of night, sometimes in the company of Mr Green. She had left her unit more than once that night and was last seen in the company of Mr McCarthy and Mr Green leaving her apartment and walking out through the western carpark of the Robert Street flats onto Robert Street at 3:23 a.m. before returning with Mr McCarthy to their unit a short time later. However, this is the last time she is seen to leave her apartment until 8:17 a.m. on 28 March 2018.

92. Ms Russell was cross-examined to suggest that Mr Green had been to her home three times at night-time and she was unable to say on which of those occasions he had produced a knife (626.37 -.50T). She agreed with this. She did say that she remembered Mr Green attempting to persuade Mr McCarthy to accompany him on “creeps” the night after they had been to Fantastic Furniture during the day. That date is established by the objective evidence of the Fantastic Furniture records and Ms Russell’s bank statements as 27 March 2018 (Exhibits 36 and 37).

93. Mr McCarthy also remembers Mr Green being at their apartment on the evening after they purchased and received delivery of the items from Fantastic Furniture (558.35T). I interpolate there is no doubt that Mr Green was in and out of Unit 7 during that night as is clearly established by the CCTV footage. Mr McCarthy confirms that he sold Mr Green the Adidas jacket with “little clover leaves all over it”. I take this to be a reference to a trademark associated with the Adidas sporting goods brand. Mr Green attended a service station at Goonoo Goonoo Road to obtain cash to complete the purchase. There is in evidence CCTV footage of him at the service station at 1:38 a.m. in the company of others. Mr Green had returned with the money before 1:50 a.m. This corroborates Mr McCarthy’s evidence about the sale of the jacket, as does the CCTV footage depicting Mr Green wearing it, to which I have already referred (559.10 - .39T).

94. Mr McCarthy said that after Mr Green returned from the service station the latter remained at the unit for a period of time. While he was at the unit, Mr McCarthy saw Mr Green with a knife and gloves. He described the gloves as black in colour and the knife as having a silver blade with a black handle with an overall length of 30 centimetres.

95. I interpolate that a black handled knife with a silver blade was seized by the police during the execution of a search warrant at Mr Green’s home and is depicted in Exhibit 80.19 to .22 along with a black, red and yellow sheath. One of those images was shown to Dr Clifton and Prof DuFlou during their joint evidence. They both identified it as a knife capable of inflicting the stab wounds suffered by Teah including the fatal stab wound. Images of eleven knives and other sharp implements recovered as part of the police investigation were shown to the experts (Exhibit 93). Of them, three were identified as capable of causing Teah’s injuries, including a blue handled knife taken from the crime scene by police. It should be emphasised that none of the knives or other implements including the three “likely” weapons bore any forensic material linking them with, or assisting to identify, Teah’s killer. This applies to the knife associated with Mr Green’s home.

96. At the time he saw these items Mr McCarthy said that Mr Green was getting ready to go out “creeping”. Mr McCarthy defined “creeping” as searching, being quiet and breaking into places (561.25 - .36T).

97. Mr McCarthy confirmed that Mr Green left the premises, although he estimated that absence to be of an hour or two’s duration. This was inconsistent with the comings and goings shown on the CCTV footage. At one stage there was a conversation relevant to what happened at no. 48. Bearing in mind that Mr McCarthy is the person who had broken into no. 48 Robert Street on 24 March 2018 and who among other things stole the keys for the ute, his evidence of the conversation between him and Mr Green was as follows (561.50 – 562.11T):

“A. Yes, he said the fellow come outside the door and he couldn’t get the ute and stabbed the door;”

He was asked to repeat himself and said,

“A. The place he went to the fellow came out and caught him and he ended up stabbing, stabbing the door.

Q. You added something else at the end?

A. He couldn’t get the ute, he had the ute keys for a ute on Robert Street.”

Mr McCarthy gave evidence that he had stolen the ute keys and had given them to Mr Green (569.47 – 570.26T).

98. Part of the history that Mr Green gave to Dr Allnutt when he saw him on 1 May 2021 is relevant to Count 3. After his statement about breaking into what was the Drews’ house after he had been to Tom Allen’s house he said the following:

“He went to Maccas and to Ben’s house … he referred to Ben giving him keys for a car. He tried to steal that car five or six times …”

“Maccas” is a reference to McDonald’s family restaurant; “Ben” is a reference to Mr McCarthy; and in context, “car” must be understood as a reference to the ute at 48 Robert Street.

99. Mr Bouveng cross-examined Mr McCarthy about his failure to inform police in his statement that he had given the ute keys to Mr Green. He also cross-examined Mr McCarthy to suggest that he was the person who Ms O’Toole saw in the curtilage of 48 Robert Street and who lunged at the front door. In particular, he cross-examined Mr McCarthy to suggest that his attire matched the attire described by Ms O’Toole as that worn by her assailant. I will return to her evidence in a moment. He was somewhat evasive about answering those questions stating either that he did not know, or he did not remember because of the effluxion of time and his use of ice. He was also cross-examined to establish that he had a record for crimes of violence.

100. Mr Green next left Unit 7 by the western carpark at 4:56 a.m.. He is differently attired. Footage on his return depicts him wearing a darker coloured t-shirt with a lighter motif under a different Adidas jacket sporting the distinctive Adidas stripes on the sleeves. I accept the Crown case that the t-shirt is probably that depicted as worn by Mr Green in photographic stills obtained from the CCTV camera at Tamworth Railway Station at 10:35 a.m. on 28 March 2018 and at Hornsby Railway Station on 4:28 p.m. on the same day. It seems to be a black or dark brown t-shirt with a motif of a light-coloured rhinoceros inside an ellipsoid (Exhibit 119).

101. Ms O’Toole’s evidence is that after checking the fuse box for the second time she stood looking out the front window for about 20 minutes. She saw nothing so she went back to bed after that, but she was unable to fall asleep. The neighbour’s dog started barking again which made her feel that “someone was around” so she got up and looked out the kitchen window which overlooks the driveway (262.40 – 263.5T). She saw a man standing on the driveway looking into the back yard through the gate. She thought it looked really suspicious (263.19T). She could not make out anything in relation to his appearance “too quick”. She yelled out to Mr Madden, “someone’s in my driveway” and then proceeded to the front door just to see if she had scared him off and which way he would run (263.30T). But when she opened the door “he was actually coming forward towards the front porch”. I have already recounted her evidence of the person lunging towards her as she slammed the door shut. She said that by then Mr Madden was with her but she had locked the door and attempted to dissuade him from going out. She said there was enough light from the streetlight for her to be able to see the person was in shorts and joggers. She did not recall gloves or socks. She said he was wearing a black hoodie with the hood over his head and she did not describe any motif. She said that from his legs he appeared to be of dark skin. He appeared to be 25 to 30 years of age and around 170 to 180 centimetres, she was not quite sure. She judged him to be “a bit toned” (264.20T).

102. In cross-examination she was asked whether she told the police the joggers were black and she answered “Yes, everything looked dark” (271.30T). She confirmed she said she was not sure if the person was wearing gloves.

103. Mr Madden said that he was awoken around 4:30 a.m. by the sound of Ms O’Toole “shuffling around the house” (296.8T). I infer this was after her second inspection of the fuse box. About 15 minutes later he heard her scream “he’s here, tried to kill me” (296.15T). He confirmed that Ms O’Toole attempted block his exit but he, after a short delay, “gave chase” (296.20T). When he was outside, he saw a person running up the road. He pursued, but the person disappeared from his view. He returned home to get dressed as he was then naked. After he was clothed, he went around the block looking for the person but did not see him. He confirmed that he had lost sight of the person around the Robert Street units. He said “virtually the same place as what the following person did four days before” (sic) (296.35 - .40T). Mr Madden estimated that he last saw the person “round about 5 o’clock (305.41T).

104. In cross-examination he agreed he told the police that he wasn’t “certain” if it was the same man he had chased previously (307.10T).

105. About 20 minutes after Mrs Wheeler had returned to bed (she did not look at the clock on this occasion) she suddenly heard yelling coming from no. 48. She again looked out the window and saw a person running up the footpath. To her it looked to be the person she had seen earlier, wearing the same attire she had previously described, holding a torch in one hand and something else she could not describe in the other. She then saw and heard her neighbour, James Madden, chasing the first person up the street “singing out” (244.27T) for him to “get back”.

106. When Mr Wheeler woke up, the dog was still barking, and he heard some noises coming from no. 48. He said, “It sounded like a door banging or someone kicking the wall or something” (249.16T). He looked out the window and noticed a person jumping over the front fence at no. 48 then running west on Robert Street “up toward 54” (249.29T). He described the person’s attire in terms similar to his wife including “white or creamy coloured joggers”. Then he saw his next-door neighbour coming out of no. 48, yelling at the first person and “running up the street after him” (249.42T). Mr Wheeler thought there was a time lag of about five or six minutes between the pursued and the pursuer, but clearly his estimate must be out.

David Hughes

264. I have already made mention of David Hughes when dealing with Teah’s movements on 27 March 2018. Mr Bouveng pointed out that Mr Hughes was in a sexual relationship with Teah. They had spent the day together on Sunday, 25 March 2018 and he had stayed at least part of the night with her. Although he said he spent the afternoon and evening of 27 March 2018 at home nursing his headache, CCTV footage taken only minutes after Wade Carter and Teah left his Susanne Street address shows him walking west along Robert Street. He is seen returning heading in the direction of Susanne Street a few minutes later

265. He has no alibi for the evening of 27 March and morning of 28 March 2018. Although at that time he was residing with his mother for whom he was said to be a carer. She has since passed away.

266. There is also the matter of the message of 5:30 p.m. on 28 March 2018 referred to at [246] above where he said he had knocked on Teah’s door on the afternoon of 27 March. Mr Hughes, as I have said, claimed that was a lie and I accept it is difficult to understand his explanation for that. He was also seen on CCTV footage at 5:18 p.m. at the IGA at Robert Street buying alcohol placed in a brown paper bag. Mr Bouveng submits that from there he went to Teah’s place. I interpolate that it is only a few minutes’ walk from the IGA to 34 Robert Street. And he is picked up by the Robert Street flats’ cameras heading east in the direction of Teah’s home at 5:21 pm. Teah then was with Wade Carter and not home. Mr Hughes may have waited for her for a short period because he is not seen again until 5:31 pm heading west along Robert Street in the direction of his home in Susanne Street. He is last seen at 5:34 pm still heading west. I am not satisfied that he saw Teah again that day. He was probably lying when he said he did go to Teah’s again on 27 March 2018. But it was of no moment. He did not see her.

267. Ms Kristen Searle, the daughter-in-law of Donna Searle, arrived at her mother-in-law’s house at 5:45 p.m. on 27 March 2018 to pick up her children who had been with their grandmother that day. As she pulled up in Donna Searle’s driveway, she happened to look down Robert Street towards 34 Robert Street and she said she saw “a lady walking a red pram towards the block of units”. She described the person as a “young mum”. This is the first time she had seen Teah. And, of course, the timing accords with the evidence of Mr O’Connor. When she got out of her car, she looked down the road again and saw a male of small to medium build with a stubbly beard standing in the front yard of the units. The male was holding the type of narrow brown paper bag in which takeaway liquor is supplied. She heard the male and female talking to each other. Although she could not hear what was said, from the body language and the tone of the conversation she gathered they knew each other. After speaking with Mrs Searle, by the time she left the male and female were gone (Exhibit 61).

268. Having regard to the CCTV footage, I do not accept that it is possible that the male was David Hughes. Kirsten Searle’s evidence is unchallenged. Naturally, Kristen Searle did not know Mr Hughes and her identification of him is uncertain. But, if it was him, Mr Bouveng submits it would explain the marijuana and spin on the table in the spare room. But there was no evidence from Ms Searle that the male person actually entered Teah’s home. David Hughes’s motive is said to be sexual jealousy given Teah’s interest in the younger James Orle. However, in evidence he said Teah was a young woman and she was entitled to do as she pleased. This, I thought, had the ring of truth to it in terms of his attitude. The evidence certainly demonstrates, and I mean no disrespect, that Teah was an attractive, sexually active young woman with no shortage of admirers.

269. There is evidence that Mr Hughes was attired quite differently from the clothing described by Ms Searle on 27 March 2018. Still photographs from the security CCTV footage at the IGA show him wearing a dark blue t-shirt with a motif and red long pants (Exhibit 43). Anyone may change during the day, but it seems unlikely in David Hughes’s case. Other witnesses claim to have seen other persons in the vicinity of Teah’s unit. A Mr David Haigh, who resides in Robert Street, claimed to have seen Teah walking with an Aboriginal man, aged about 28 to 30 years late on Monday afternoon. He said they seemed to be arguing because Teah had a frown on her face. Ms Kay Creanor who did school crossing duty at St Edwards’ said she saw two nicely dressed Aboriginal males on the afternoon of 28 March 2018 when she was on duty between 2:45 p.m. and 3:45 p.m. glancing in towards Teah’s front door. Shane Gillin (Exhibit 112) claimed to have seen an Aboriginal man in his 20’s walking into the driveway of Teah’s residence at 5:20 p.m. on Wednesday 28 March. Mr Tony Mitchell (Exhibit 113) claimed to have seen two males in the driveway of 34 Robert Street at a time he does not specify on 28 March 2018.

270. For what it is worth, Mr Hughes appearance on the CCTV footage does not fit Donna Searle’s description, of the person she saw just before 4:20 a.m. on 28 March 2018. Like so many others who featured in this case, he does have a record for crimes of domestic violence, but there was no suggestion that he was ever abusive in his relationship with Teah, whatever the true nature of it. He also contacted police to tell them of his relationship with Teah on 2 April 2018 (Exhibit 33). If the hypothesis for the message at 5:30 p.m. on 28 March is the deliberate laying of a false trail, it may have been rather undone by that contact with police, which was bound to render him a person of interest in their investigations.

271. I do not accept the person seen by Kirsten Searle could possibly have been Mr Hughes. The person seen certainly appeared to be someone known to Teah. There is no suggestion that that person stayed or was invited inside

272. The object of Teah’s particular interest at that time seemed to be James Orle. She had twice attended his home that afternoon and found him absent. She also messaged him at 3:34 p.m. saying, “Oii dick miss you xox”, which message James Orle did not respond to until 29 March 2018, a point to which I will return.

273. It does not seem very likely to me that the person Kirsten Searle saw was David Hughes. I accept he was probably there for a short time before Kristen Searle arrived and while Teah was at the Petra Avenue flats. I accept that he actually went to 34 Robert Street again at about 5:30 p.m. on 28 March 2018. I am satisfied he would not have done so had he known that Teah was dead and he was the perpetrator.

274. I am not satisfied that the evidence supports a reasonable hypothesis that he is the perpetrator, even if his evidence was not entirely truthful.

Wade Carter

275. As I have said, Wade Carter was Teah’s de facto brother-in-law. He was also a person who supplied her with cannabis on a regular basis. As I have demonstrated above, he supplied cannabis to Teah when she was with James Orle on Monday 26 March 2018 and spent time with her on the afternoon of 27 March 2018 between approximately 4:30 p.m. and 5:30 p.m. Mrs Creanor, the crossing guard at St Edwards had become familiar with Wade Carter’s blue SUV coming and going from the driveway at 34 Robert Street. She said he always drove up to the driveway and around the back of the flats. She saw Teah in the car from time to time. She said that she would see Teah at least two to three times per week. She did not see her at all on the morning of Wednesday 28 March 2018, but she heard Teah’s baby making noises at some point (Exhibit 46 [11]). Mrs Creanor remembers that the blue SUV known to be Wade Carter’s vehicle drove up the driveway and around the back while she was on duty that morning. A short time later he reversed out and left.

276. On the CCTV footage evidence, we know that Mr Carter drove his vehicle along Robert Street in the direction of Teah’s residence at 8:14 a.m. He was picked up on the Robert Street flats cameras. He is seen returning, in the opposite direction 3 minutes later. This, of course, accords with Ms Creanor’s evidence. The CCTV footage evidence also shows Wade Carter’s vehicle heading the direction of Teah’s residence via Petra Avenue at about 5:11 p.m. on 28 March 2018. Again, he is seen returning from the direction of Teah’s residence at 17:14 p.m.

277. I have already made clear that from seeing Teah and Wade Carter together on the afternoon of 27 March 2018, Sophie Luckwell was convinced they were having an affair. Any doubt about that is entirely dispelled by Exhibit 26, a screenshot taken by her cousin of a message posted on Facebook by Sophie at 5:39 p.m. She said the same thing to Police officers when she arrived at Teah’s place after Teah’s body had been discovered on 28 March 2018 (402.10 - .30T). A full exchange disclosing Sophie’s thinking is set out in the exchange with her aunt, Eileen Murray (Exhibit D).

278. Wade Carter denied to his partner that he was having an affair and was not forthcoming about the matter in evidence. He maintained that he had not had sex with Teah more than once. By the time of the hearing before me, he apparently had admitted this to his partner. I have my doubts about the veracity of his answers in that regard, but my suspicion does not prove the contrary. Apart from Ms Creanor, others saw him at Teah’s place very frequently. Mr Riikonen, for instance, said his vehicle was at the premises “a couple of times a day” (359.23T).

279. There is no doubt that he lied to police initially about the true nature of his relationship with Teah.

280. When he arrived home his partner on 27 March, Sophie, was still there but they argued, of course, and she took the children to her mother’s. The effect of this, according to Mr Bouveng, is that Mr Carter has no alibi after about 8 p.m. He had visited his friend, Phil Baldwin at the latter’s place of work at about 7:45 p.m. and confided in him about his “women problems”. He also rang Triple-O at 8:59 p.m. on 27 March 2018 to report a fire he had incidentally seen on Tingira Street (1702.25T). He then returned home. He then was able to speak to his partner on the telephone where he lied, telling her that he did not sleep with Teah (1703.10T). During the evening he had two conversations with his father.

281. There was much controversy about a text message he received from his father at 6:32 a.m. on 28 March 2018, saying “job’s done” (1705.10T). Wade Carter’s father, William, lives in Barabar, about a good hour’s drive out of Tamworth. I interpolate that when Mr William Carter gave evidence about the message, he was singularly unimpressive, and it was apparent that he had no recall of it and was giving a version which had been discussed with his son.

282. It does seem to be accepted that Wade Carter and his father were working on a “one tonner” at the father’s property during this period. The message was said to relate to an aspect of that work. Wade Carter’s explanation was that it related to welding the engine mounts (1705.20T). And I had some doubt about that. However suspicious the message sent and received about two hours after what the Crown say was the time of Teah’s death, it does not rise above that.

283. I did find Mr Wade Carter a somewhat evasive witness. My impression was there was a high proportion of “I don’t knows” and failures of memory.

284. Mr Bouveng submitted that Teah’s murder had all the hallmarks of a crime of passion. Mr Wade Carter probably had an ongoing affair with his de facto sister-in-law and knew that she was seeing other men, including David Hughes and James Orle. Teah would have undoubtedly admitted him to her home had he shown up there on the evening of 27 March 2018. The motive may have been to put an end to his domestic troubles, of which he was the author.

285. I am not satisfied that this is a reasonably plausible hypothesis available on the evidence. Had he murdered Teah on the evening of 27 March 2018 or had he arranged through his father for someone else to do it on the early morning of 28 March 2018, he would hardly have shown up at Teah’s place at 8:17 a.m. and again at about 5:15 p.m.. Mr Bouveng points to a sudden halt in the messages passing between Wade Carter and Teah after 27 March 2018 and again this might give rise to some suspicion.

286. However, it is apparent to me that Wade Carter had decided on the tactic of denial to his partner; he wanted their relationship to continue; and he was determined to “tough it out”. In my opinion, it is much more likely that he attempted to see Teah in person in the morning and afternoon of 28 March 2018 to seek to persuade her that if Sophie accused Teah of having an affair with Wade Carter, Teah too should flatly deny it.

287. Moreover, Wade Carter seemed to drive everywhere and his vehicle was well known in the vicinity of Teah’s home. He had access to other vehicles. However, it seems to me strange that were he the perpetrator there is no evidence of his attendance whatsoever between dropping Teah off at around 5:30 on the 27^th and his attendance at her place at 8:17 a.m. on the 28^th.

288. I am not satisfied that the case against Wade Carter rises above suspicion.

James Orle

289. Mr Bouveng submits that the case against James Orle is the most compelling of all the matters he has raised against the other persons of interest. Mr Orle gave his evidence in two parts. He initially gave his evidence on 13 July 2021, but his evidence was interrupted by him suffering a seizure (689.34T). His evidence resumed on 21 September 2021. Mr Bouveng submits that even were I to be satisfied beyond reasonable doubt that the fatal attack on Teah occurred at just before 4:20 a.m. on 28 March 2018, James Orle cannot be excluded.

290. I have recounted the evidence in relation to Mr Orle up until he leaves Teah’s place early in the afternoon of 27 March 2016, leaving Teah alone with David Hughes. The elements of the case against Mr Orle consists of the following matters:

1. He was the male Teah was most interested in at that time, as demonstrated by her attempts to make contact with him after David Hughes left on the afternoon of 27 March 2018;

2. Initially when asked what had happened after he had left Teah’s in the early afternoon, he said he went home had a shower, “and then … I am pretty sure I went back there” (1107.20T). He later resiled from this evidence.

3. He lied to police about when he last saw Teah (1119.25 - .30T). He proffers an alibi about staying at the home of his aunt, Rita Orle in Links Avenue between the evening of 27 March and 29 March 2018;

4. He had a criminal record for crimes of violence including for threatening to stab a person while he was carrying a knife in 2015;

5. The failure to respond to Teah’s message at about 4:30 on 27 March 2018 until 29 March 2018;

6. And most significantly, there was compelling evidence suggesting that James Orle had had sexual intercourse with Teah within 6 to 12 hours of her death.

291. I will not deal with these matters in any particular order. It can be well accepted that Mr Orle was the object of Teah’s romantic interest as at 27 March 2018 and she made efforts to try and re-engage with him. Mr Orle’s evidence was that when he left Teah’s in the afternoon of 27 March 2018 he went to stay with his aunt, Rita Orle, for two days. He maintained that he remained at his aunt’s place until he left on the morning of 29 March 2018 because he had an appointment at Jobs Australia, which he needed to keep in order to maintain his social security benefit. However, he was shown to have lied to the police in two respects. The first was that he had initially said that he had not been with Teah at all on the afternoon of 27 March 2018. Rather, he parted ways with her when she was heading down to Susanne Street to see David Hughes. Nor did he remain in his aunt’s home for the whole period up until 29 March 2018. CCTV footage shows him returning to his place at the Petra Avenue flats at about 9:40 a.m. and he apparently remains there until about 12:10 p.m. when he leaves and heads west along Petra Avenue in the direction of Links Avenue. He returned to the Petra Avenue flats at about 1 p.m. remaining there for a short time. He is seen again a short time later entering the Robert Street flats. He is at the Petra Avenue flats again at about 2 p.m. and he is finally seen about 2 minutes later heading in the general direction of Links Avenue. However, there is no suggestion in these movements of him heading further east than the Petra Avenue flats, and in particular in the direction of David Street to visit Teah. Although he was generally corroborated by his aunt, she had not been asked to make a statement until about July of 2018. Her recollection was vague. And she did not entirely corroborate him in all respects.

292. During her post-mortem examination, carried out on 31 March 2018 (Exhibit 94), Dr Clifton took a number of swabs from Teah’s body including her vagina and surrounding areas, and her anus. These were sent to the laboratory for testing. Dr Clifton described her methodology for taking the swabs and I am satisfied that they were taken with skill and care to avoid any possibility of cross-contamination from one site to the other. That testing was carried out by Sienna Collins, a senior scientist with the Forensic and Analytical Science Service (1642T ff). It should be borne in mind that while he admitted to sexual intercourse more than once, Mr Orle denied putting any part of his body into Teah’s anus (1153.5 - .30T). He also said that her showering on the morning of 27^th was the last time he had seen her naked and he was never naked with her again (1158.20T).

293. During her evidence, Ms Collins was asked the following question (1644.40 - .45T). Having established that a small amount of Mr Orle’s DNA was found within Teah’s anus the following exchange occurs:

“Q. As far as the persistence of DNA in the anus, is there anything you're able to say about a timeframe in which that DNA may have been deposited or is that not able to be elaborated on?

A. In living individuals we only expect to find touch DNA in the anus up to 6 to 12 hours after the depositing of the DNA and that's because it is an environment with a high bacterial and enzyme content. If it is in a deceased person the timeframe will extend longer, but I can't really give a definitive timeframe in a deceased individual.”

294. In cross-examination, when asked how the presence of James Orle’s DNA could be accounted for on Teah’s upper thighs after washing, given the evidence that she showered on the morning of 27 March 2018, Ms Collins said that from a rich source of DNA like semen washing would not necessarily remove all of the DNA, although it may remove some or most of it (1648.45 – 1649.5T).

295. From this evidence, Mr Bouveng submitted that, if one accepted that from the time of death the bacterial and enzyme activity responsible for removing the traces of DNA ceased, if one assumed that Teah died just before 4:20 a.m. on 28 March 2018, one would still be left with the probability that sexual contact, including touching within Teah’s anus must have occurred in the period of 6 to 12 hours before her death. If these premises were correct then the last sexual contact between James Orle and Teah could not have been in the morning of 27 March 2018 as James Orle said. This made it likely that he returned to Teah’s home in the evening of 27 March 2018 and stayed the night, contrary to his testimony. On this scenario, the person that Ms Donna Searle saw in a staggering run up Robert Street, heading west was likely to have been James Orle and not Mr Green. Two further factors re-enforce this according to the argument. The first is that Mr Orle was seen to wear three-quarter length pants in the footage of the 26 and 27 March 2018 (but I interpolate not on 28 March 2018 when he was wearing shorts). Secondly, if he was running home, he would have turned right into David Street, then left into Petra Avenue and into the Petra Avenue flats. This would account for his absence when Ms Searle went outside and looked. Mr Bouveng pointed out that there was footage of a person entering the Petra Avenue flats at 5:34 a.m. on 27 March 2018 (Exhibit G). He said it is reasonably possible that that person was James Orle.

294. Mr Orle did not respond to Teah’s Facebook message of the afternoon of 27 March 2018 until 11:05 a.m. on 29 March 2018. Mr Orle told police that he did not see Teah’s message until he obtained credit from Jobs Australia after his interview at 11:45 on 29 March 2018. When he uploaded the credit, he saw the message and replied to it (1134.45 – 1135.5T). His reply was “Hey, miss you too. I’ll come and see you soon” (1136.10T). But in fact the message was sent at 11:05 a.m. Mr Orle maintained he had no phone credit until he received the $30 voucher (1138.20 - .30T). This is somewhat strange given that he had withdrawn $240 from his ATM on 27 March 2018 (1154.15 - .45T). It was his case that he first learnt of Teah’s death when a friend, Kane Smith picked him up and gave him a lift as he was making his way home from the Jobs Australia Office. He agreed that he sent his message to Teah when he already knew that she was dead (1147.15T). He could not explain why he would do that. He denied it was to coverup an involvement in Teah’s death (1147.25T). In re-examination he maintained that had sent the message after he came out of Job Australia even though the evidence from Facebook indicated that the message was sent at 11:05 a.m. (1163.15 - .45T).

295. Ms Rita Orle gave evidence and it was necessary for her to refresh her memory by reference to her statement of 29 July 2018. She said she believed that James Orle came to her place on the Tuesday and she knew she had an appointment on the Thursday. In cross-examination she said James Orle visited her “a fair bit, but he didn’t stay the night very often” (1184.35T). She also agreed that James Orle had spoken to her before she went to the police and reminded her about what had happened in the week before Easter in March 2018 (1184.45T), including his appointment with Jobs Australia about which she had no recollection until then (1185.5T). When she spoke to the police she was “thinking [she was] covering off where James was for a period of time” (1185.25T).

296. I accept that the evidence of Ms Collins provides a firm evidential basis for believing that Teah and Mr Orle may have had sex again on the evening of 27 March 2018. It seems logical that even though the effect of a person’s death upon the DNA is not well understood, as it its normally excluded in a living person within 6 to 12 hours from the anus, then that should have occurred before Teah’s death had the last sexual contact been in the morning of 27 March 2018. Moreover, Ms Rita Orle’s evidence does not really provide the alibi that James Orle was looking for given the cross-examination which demonstrates critical parts of her account were provided by her nephew. His conduct on 28 March 2018 is not consistent with the account of the alibi he provided to police. Although he is not shown to shown to have gone anywhere near Teah’s place, he is out and about at different times on the 28^th. His explanation about his response at 11:05 a.m. on 29^th March 2018 is difficult to follow and internally inconsistent. I failed to understand how a message said to be sent at 11:05 a.m. was in fact not sent until sometime after 11:45 a.m.. Why would he send a message if he had just learnt she had died? There is much about his evidence which is just unsatisfactory.

297. However, I am not satisfied that James Orle was the person Ms Donna Searle saw. Three-quarter length pants are a very slight hook on which to hang an identification. Moreover, the staggering the movement is more like Mr Green’s, as I’ve already said. Nothing much turns on the fact that the person Ms Searle saw had disappeared by the time she went out to have a look. She was hoping not to see the person, on her own account. I am not persuaded that the person depicted in Exhibit G walking west along Petra Avenue at 5:34 a.m. on 28 March 2018 could possibly be James Orle. The Petra Avenue flats are “just around the corner” from Teah’s place, as James Orle himself said. It would not have taken him 15 minutes to get there. Moreover, the person depicted in the footage is, so far as I can tell, wearing knee length shorts and not three-quarter length pants. He appears to be strolling on the northern side of Petra Avenue and not the southern side, where the Petra Avenue flats are located. Although he does appear to cross the road towards them at the end of the film-clip.

298. Given his initial response in evidence-in-chief (1098.30T; 1107.15 - .25T), I accept that there is a reasonable hypothesis based upon the evidence that he did return to Teah’s place sometime during the evening of 27 March 2018 and they had sex again. However, even taking into account the unsatisfactory features of his evidence, I am not satisfied that acts of sexual intercourse provide a sufficient basis for a reasonable hypothesis that he killed her in the early hours of 28 July 2018.

299. As I have already said, I am satisfied that Teah was alive as at 1:35 a.m. on 28 March 2018 when Ebony Roberts cab drove passed. Then there was no illumination from the front of the house and the wooden door seemed to be, at least, closed over. At the time of her death, the entry hall light was illuminated, the wooden front door was open, and the screen was unlatched. Wade Carter didn’t notice these things on 28 March 2018, but Ms Creanor noticed the door open and certainly David Hughes did too when he attended at about 5:30 p.m. It’s a little difficult to understand how he failed to see Teah, but he did.

300. I am not satisfied that there is a reasonable hypothesis based upon the evidence that James Orle murdered Teah.

Sightings of Teah after 4:20 am

303. A number of people gave evidence of seeing Teah during 28 March 2018. In particular members of the Flett family said they had seen her with her child in K-mart. There is no CCTV footage of Teah entering or leaving the store. They said she was seen at the check-out, but there is no evidence of any payment for a transaction whether by EFTPOS or otherwise. She had less than $3 in her account on 27 March 2018. Her social security went in overnight but remained untouched. I do not regard the evidence as reliable.

Conclusions on Count 1

304. I don’t accept that the image presented by the crime scene is inconsistent with death inflicted by “creep got wrong”, to borrow Mr Bouveng’s phrase. There was ample evidence that Teah would redress after sexual intercourse and sleep with her clothes on (Stuart Blair (908.08T; 910.12-.22T). Ms Levina Chapman gave evidence that Teah would often sleep with her child in the bed with her (929.28 - .49T). Mr Wadwell said that the baby would sometimes sleep next to Teah (1127.39-.42T). Ms Carol, Teah’s flatmate in December2017/January 2018, said that the baby often “co-slept” with Teah. Although she did not see Teah retire for the evening, she did notice that frequently she would be wearing the same clothes in the morning as she had been in the evening. She may wear the same clothes for a couple days (1241.29 – 1242.5T).

305. Other evidence went the other way, David Hughes said that she always put the baby in the cot (726.15 – 726.21T). But James Orle said when he stayed overnight on 27 March 2018, the baby was on the bed with him and Teah in the morning (687.06T).

306. Not everyone is a punctilious housekeeper and with no disrespect, according to the crime scene photographs, Teah’s home was not spotless. I do not find the condition of the kitchen to be inconsistent with an attack by an intruder in the early hours of the morning. On the evidence, Teah often slept in her clothes.

307. I am satisfied that the Crown have established the circumstances I have set out [160] above. On the basis of them, I am satisfied beyond reasonable doubt that Mr Green fatally stabbed Teah by inflicting the wounds described at the post-mortem on her when she disturbed him as he was gaining access to her home. Probably she turned on the light when she went to investigate a noise or other disturbance at her front door. That she was found in the kitchen rather than in the foyer to my mind is not inconsistent with the whole of the Crown case. Although the circumstances cannot be established in precise detail, she may have moved back or stumbled back as she was attacked. The entrance hallway is very narrow. The absence of defensive wounds is accounted for either by the suddenness of the attack or perhaps because she was holding her child whom she did not want to drop.

308. I also accept that the apparent similarities between the attack on Teah and the attack on Ms O’Toole have significant probative value and it is improbable that the events occurred coincidentally. I am satisfied for the reasons I have given, that the probative value of the coincidence evidence substantially outweighs its prejudicial effect on Mr Green and that I am entitled to take it into account.

309. For all of these reasons, I am satisfied beyond reasonable doubt that the Crown proved that Mr Green committed the act of fatally stabbing Teah Luckwell. The absence of forensic evidence linking him to the murder scene is explicable by him wearing gloves at the time of the attack. It is not a matter in which, in my mind, creates a reasonable doubt in view of the whole of the circumstances otherwise proved.

The defence of mental health impairment

310. As I have said, both counsel accept that if I was of the view that the act constituting an element of any count was proved beyond reasonable doubt, the availability of the mental health impairment defence had been established on the balance of probability by the joint evidence of Dr Allnutt and Dr Chew. It was the opinion of Dr Chew and Dr Allnutt that Mr Green suffered from schizophrenia which is a major mental illness. Dr Chew said, “it is probably the most significant mental illness that is certainly managed by forensic psychiatry” (1765.25T). Dr Allnutt agreed with Dr Chew’s description. Dr Chew also said at (1765.350T):

“[Schizophrenia] is really characterised by a number of what we call symptom clusters, the most obvious being the positive symptom cluster, which constitutes delusions, being fixed false beliefs, and hallucinations such as hearing voices. There are also symptom clusters which are important as well; there is usually evidence of cognitive impairment and also what we call negative symptoms, which are things such as lack of motivation, and so on and so forth.”

Both experts were of the opinion that Mr Green suffered from that condition.

311. Dr Allnutt who had reviewed the whole of Mr Green’s clinical history was of the view that Mr Green suffered from a treatment-resistant schizophrenia. Indeed, Dr Allnutt said that Mr Green suffered from “severe treatment-resistant schizophrenia” (1767.5T). Dr Chew agreed. Each expert accepted that Mr Green’s illness had arisen in his late teenage years which is not uncommon and that he had required a number of involuntary psychiatric admissions over the years since. His symptoms were sometimes aggravated by illicit drug use.

312. From the clinical material, Dr Allnutt was of the view that there were continuing active symptoms of psychosis around the time of the offending (1768.45T). Both experts agreed that there was no evidence of malingering in this case, given the well-documented clinical history (1769.15 - .20T).

313. It is significant that his condition was untreated as at March 2018. He was not then taking any psychotic medication, but Dr Chew is of the view that even if he had been on medication, he would have likely still been psychotic given the severity of his illness. Dr Allnutt also said that Mr Green’s persecutory thought processes which are characteristic of the disease are “commonly associated with finding motive for violent offending in seriously mentally ill people who act violently” (1772.40T). His illicit drug use including methylamphetamine very likely would have exacerbated his symptoms (1775.45T).

314. Dr Chew and Dr Allnutt were both of the view that, in respect of each offence, Mr Green, because of his disease, did not know that the act involved was wrong in that he could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people was wrong (1778.10 - .20T). Both experts were of the view that he would have been acutely and actively psychotic at the time of the act constituting an element of each of the offences (1779.5 - .20T).

315. Both experts agreed that the second limb of the defence as encapsulated in s 28(1)(b) of the Act was the applicable limb. His inability to reason about the wrongness of his act with a moderate degree of sense and composure was “driven by irrational thought processes” (1783.5 - .10T). Dr Allnutt and Dr Chew were of the view that the defence was available in respect of all counts. Dr Allnutt said, “If you apply to the one, you have to apply to the other because they are all proximal at the same time” (1785.25T).

316. I am satisfied on the balance of probabilities that the mental health impairment defence has been made out and that the appropriate verdict under s 59 of the Act in respect of each count is one of a Special Verdict of act proven but not criminally responsible. In coming to this conclusion, I have borne in mind in accordance with s 29 of the Act the various verdicts that are available under s 59. It must be understood that a Special Verdict does not mean that Mr Green will be allowed to go free in the community. Rather, he will remain detained and under the supervision of the Mental Health Review Tribunal. He may only be released if the Tribunal is satisfied, on the evidence available to it, that the safety of Mr Green and of any member of the public will not be seriously endangered by his release. Moreover, before a person under the supervision of the Tribunal because a Special Verdict has been passed upon him may be released, the Tribunal must give notice of its decision in that regard to both the Attorney General and the Minister for Health.

Verdicts

1. In relation to Count 1, my verdict is a Special Verdict of the act of fatally stabbing Teah Luckwell is proven, but Mr Green is not criminally responsible;

2. In relation to Count 2, my verdict is a Special Verdict of the act of aggravated break and enter at Ernest Street, Oxley Vale is proven, but Mr Green is not criminally responsible;

3. In relation to Count 3, my verdict is a Special Verdict of the act of using an offensive weapon at 48 Robert Street is proven, but Mr Green is not criminally responsible;

4. Under s 67 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) Jesse Green is referred to the Mental Health Review Tribunal;

5. Under s 33 of the said Act order that Jesse Green is to be detained at such place and in such manner as the Mental Health Review Tribunal determines until released by due process of law;

6. Direct that a copy of these reasons and of the evidence of Dr Allnutt and Dr Chew be forwarded to the Registrar of the Mental Health Review Tribunal; and

7. Remit sequences 2, 5, 6 and 9 on the s 166 certificate to the Local Court at Tamworth.

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Amendments

19 November 2021 - Heading Circumstance A - 5:20 a.m. amended to 4:20 a.m..

Paragraph 100 - ellipses amended to ellipsoid.

Decision last updated: 19 November 2021