R v Hasapis - [2025] NSWSC 121

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Hasapis [2025] NSWSC 121
Hearing dates: 17-21 February 2025
Date of orders: 27 February 2025
Decision date: 27 February 2025
Jurisdiction: Common Law
Before: N Adams J
Decision:
The accused is guilty of the murder of Sean Froggatt.

Catchwords:
CRIMINAL LAW – Murder – trial by judge alone – verdict – where deceased was assaulted by accused and died from head injuries – where accused denies that he intended to inflict grievous bodily harm on the deceased – where accused admits he is guilty of manslaughter but not murder – assault witnessed by two persons – crime scene evidence – delayed post-mortem examination – where deceased suffered 71 injuries to his body – where motive for assault was to elicit information – relevance of acts of gratuitous cruelty to ultimate issue – whether reasonable possibility that the accused did not intend to inflict grievous bodily harm – accused guilty of murder

Legislation Cited:
Crimes Act 1900 (NSW), s 18(1)(a)
Criminal Procedure Act 1986 (NSW), ss 132, 132A, 133
Evidence Act 1995 (NSW), ss 38, 55, 135, 137

Cases Cited:
FDP v R (2008) NSWLR 645; [2008] NSWCCA 317
Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72
Harriman v R (1989) 167 CLR 590; [1989] HCA 50
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
O’Leary v R (1946) 73 CLR 566; [1946] HCA 44
Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
R v Adam [1999] NSWCCA 189
R v Davidson (No. 1) [2019] NSWSC 980
R v Droudis(No. 13) [2016] NSWSC 1350
R v Mostyn [2004] NSWCCA 97
R v Player [2000] NSWCCA 123
R v Qaumi & Qaumi [2016] NSWSC 1473
R v Qaumi & Qaumi(No 2) [2016] NSWSC 1487
R v Simmons; R v Moore (No. 4) [2015] NSWSC 259
R v Toki (No 3) [2000] NSWSC 999
Redman v R [2015] NSWCCA 110
Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50
The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40

Category: Principal judgment
Parties: Rex (Crown)
Daniel Paul Hasapis (Accused)
Representation:
Counsel:
Mr L Carr SC (Crown)
Ms M Avenell SC (Accused)
Solicitors:
Office of the Director of Public Prosecutions (NSW) (Crown)
Legal Aid Commission (NSW) (Accused)

File Number(s): 2023/29485
Publication restriction: Nil.

reasons for verdict

Background

On 16 February 2025, the trial of Daniel Hasapis (the accused) commenced before me, sitting as a judge alone. On that day, he was arraigned on an indictment charging him that he on or about 28 January 2023 at Wyong in the State of New South Wales did murder Sean Froggatt. Murder is an offence contrary to s 18(1)(a) of the Crimes Act 1900 (NSW).
The accused pleaded not guilty to the charge of murder and the trial proceeded before me until Friday 21 February 2025 at which time I retired to consider my verdict.
The trial had initially been listed to commence on 11 February 2025. On that day, the accused made an application under s 132 of the Criminal Procedure Act 1986 (NSW) that he be tried by judge alone. Section 132A of the Criminal Procedure Act provides that such an application must be made “not less than 28 days before the date fixed for trial … except with the leave of the court”. The Crown did not oppose the application and, in fact, raised the prospect of a judge alone trial first.
Section 132(2) of the Criminal Procedure Act provides that the court “must” make a trial by judge alone order if both the accused person and the prosecutor agree. Accordingly, I was required to make the order, subject to leave being granted to file the application out of time. Given the joint position of the parties and the reasons for the application, which I will discuss further below, I granted leave to the applicant to make the application out of time and ordered that the trial be by judge alone.
The issue at trial was a narrow one. The accused does not deny that he physically assaulted Mr Froggatt on 27 January 2023 and that his actions caused his death. The sole issue in dispute at the trial was whether the Crown had established beyond reasonable doubt that when the accused assaulted Mr Froggatt, he did so with the intention to inflict grievous bodily harm on him. It was not the Crown case that the accused intended to kill Mr Froggatt.

Objections to portions of the evidence

The parties agreed that this trial be judge alone for a number of reasons. Senior counsel for the accused had foreshadowed certain objections to evidence that were said to be unfairly prejudicial to the accused within the meaning of s 137 of the Evidence Act1995 (NSW). It was submitted that those problems would be removed if the trial was by judge alone. Further, the indictment had originally contained two additional counts in relation to offences allegedly committed against Mariana Taitoko (one of the eyewitnesses to the fatal assault); assault occasioning actual bodily harm ("AOABH") and kidnapping. Shortly before the trial, the accused indicated he would plead guilty to the AOABH offence in exchange for the Crown accepting that plea in full satisfaction of the charges in relation to Ms Taitoko. That plea was subsequently entered before me on 17 February 2025. The admissibility of that assault was also challenged at the trial.
On the first day of the trial, the foreshadowed objections were maintained. They were set out in a document (marked MFI 1) provided by senior counsel for the accused. The following material was objected to:

[6]-[7] and [8]-[9] of the Agreed Facts (to the extent they mention the assault upon Ms Taitoko and injuries);

Photographs of Ms Taitoko’s injuries, except 53-54 (BOE pp 653-654);

Crime scene photographs 142-143, 176-177, 219-220, 249, 372-380, 382, 385, 388-391;

Post-mortem photographs (pp 409-554) to the extent they show more intense markings than the bath photographs;

Forensic evidence summary 2-3, 9, 11, 13;

FASS certificate, except as specifically relied upon by the prosecution or defence;

Summary of relevant phone records on 25-26 January 2023, except 13:12:56-13:13:31 on 25 January 2023, and 14:01:20 on 25 January 2023;

Post-offence conduct, as consciousness of guilt to murder.

The parties agreed that the trial would proceed without these challenged portions of the evidence being excluded and that I would make my rulings at the conclusion of the evidence.
I indicated my rulings orally in court on 19 and 21 February 2025. The parties were content with me providing my reasons in this judgment. I shall do so at the conclusion of my summary of the evidence before I consider that evidence for the purpose of my deliberation.

Elements of the offence of murder

Section 18(1)(a) of the Crimes Act relevantly provides that the crime of murder shall be taken to have been committed where the “act of the accused” caused the death charged and was done with an intention to kill or inflict grievous bodily harm. In this context, “grievous bodily harm” means “really serious injury”. Section 18(1)(b) provides that “[e]very other punishable homicide shall be taken to be manslaughter.”
It follows that to prove the accused’s guilt on the charge of murder, the Crown must prove:

The death of Mr Froggatt;

That the death was caused (or substantially caused) by a voluntary or deliberate, act or acts of the accused; and

The act was done with the intention to inflict grievous bodily harm to Mr Froggatt.

If the Crown can prove all those elements beyond reasonable doubt, then the verdict is guilty of murder.
As I have already stated, the sole element in dispute was whether the acts which killed Mr Froggatt were done with an intention to inflict grievous bodily harm, or “really serious bodily injury”.
If the Crown cannot prove beyond reasonable doubt that the accused intended to cause grievous bodily harm to Mr Froggatt, then, on the accused’s own admission, he would be guilty of manslaughter by reason of an unlawful and dangerous act.

Manslaughter – unlawful and dangerous act

To prove the offence of manslaughter based on an unlawful and dangerous act the Crown must prove:

The death of Mr Froggatt; and

That the death was caused by a voluntary, that is a deliberate, act or acts of the accused; and

The act (or acts) was unlawful; and

The act (or acts) was dangerous.

An act is dangerous if, viewed objectively, it carries with it an appreciable risk of serious injury. In the absence of any evidence capable of raising a lawful excuse, punching and kicking someone is clearly unlawful.

Legal directions and warnings

Section 133(1) of the Criminal Procedure Act provides that a judge in a judge alone criminal trial may make any finding that could have been made by a jury on the question of the guilt of the accused person and that any such finding has the same effect as a verdict of a jury: see also Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at 52 [6]. Section 133(2) of the Criminal Procedure Act requires that the judgment in a trial by judge alone “must include the principles of law applied by the Judge and the findings of fact on which the Judge relied”: Filippou v The Queen at 74 [77]. Section 133(3) provides that “[i]f any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter”.
The findings of fact on which I relied in reaching my verdict are set out in the balance of this judgment but before I turn to set those facts out, it is necessary for me to first record the applicable principles of law and any “warning” that I have taken into account.
I direct myself as follows.

Presumption of innocence

The fundamental starting point is that the accused enters the courtroom with the presumption of innocence. He is not required to prove his innocence; he is presumed to be innocent.

Onus and standard of proof

The prosecution bears the onus of proof. That onus remains on the Crown from the beginning to the end. The accused bears no onus. He is not required to prove anything in the trial. He is not required to prove that he is innocent.
The standard of proof is beyond reasonable doubt. Those words have their ordinary English meaning. Suspicion, no matter how grave, is insufficient to justify a conviction.
The matters that the Crown needs to establish beyond reasonable doubt are the essential elements of the offence. The Crown is not required to prove the truth and reliability of every disputed fact or to establish everything that each witness said in evidence.

Drawing inferences from direct evidence

There was no direct evidence regarding the accused’s intention at the time he assaulted Mr Froggatt. But the assault was witnessed by two people and there was expert evidence as to the cause of death. The Crown case is that I would infer beyond reasonable doubt that the accused intended to inflict grievous bodily harm on Mr Froggatt from the primary evidence, much of which was not disputed.
I am able to and will draw inferences from the established evidence. Before drawing any such inference, I must take care to consider whether the inference can rationally be drawn and must consider any competing inferences that are available. When drawing inferences, there is no particular standard of proof to be applied to the individual items of evidence from which inferences are drawn, but the process is subject to the care to which I have referred.
When it comes to drawing the ultimate inference of guilt, which would flow from a finding beyond reasonable doubt that the accused intended to inflict grievous bodily harm on Mr Froggatt, I must not draw such an inference unless it is the only reasonable inference, or the only reasonable hypothesis or conclusion, available on the evidence, such that I am satisfied of it beyond reasonable doubt.

Silence of the accused

After he was arrested, the accused declined to participate in an interview with police. He did not give evidence or call any defence case at trial. Consistent with the onus of proof, I draw no adverse inference against the accused based on his silence either on his arrest or at trial. The case is to be decided on the evidence before me. That evidence is to be considered without regard to any decision of the accused not to participate in an interview or give evidence.

The demeanour of witnesses

I have had regard to both what each witness said as well as how they said it. I do not propose to assess the honesty or reliability of the two eyewitnesses based on their “demeanour” in the witness box. Rather, I propose to scrutinise their evidence against the objective facts having regard to the submissions made as to how I would assess their reliability and honesty.

Expert evidence

Evidence was given by the crime scene officer, Mr Peter Watson, and the forensic pathologist who conducted the post-mortem, Dr Lea Murray. There was no challenge to the expertise of these witnesses. Accordingly, their opinions based on that expertise can be accepted. Although it is still open to me to reject some or all of the expert evidence, there is no basis to do so in this trial.

Witness knowingly concerned

Bonnie Cullen, who was at the date of Mr Froggatt’s death the estranged partner of the accused, was also initially charged with murder on 28 January 2023 and refused bail. She pleaded guilty to being an accessory after the fact to the murder and provided an undertaking to give evidence for the Crown in this trial.
Ms Cullen’s proceedings on sentence in the District Court were heard on 31 January 2025 at which time she was released from custody. On 10 February 2025, she was sentenced to a term of imprisonment which comprised a non-parole period of 2 years and 3 days. She received a 15% discount for her undertaking to give evidence which equated to 6 months of her total sentence.
The courts have a great deal of experience concerning the reliability of evidence given by a witness who participated in some way in the alleged crime. That experience has shown that the evidence given by such a witness may be, although it is not always, unreliable. As a result, such evidence must be approached with considerable caution.
There are many reasons why the evidence of such a person may be unreliable. Possible reasons include that the witness may want to shift blame from themselves onto others and to justify or minimise the severity of their own conduct. This may involve constructing untruthful stories to downplay their own role and play up the part of others, even to the extent of blaming innocent people. Such witnesses may also be motivated by revenge, dislike, or hostility. They may be motivated to give false evidence blaming others in order to qualify for a discount on their own sentence.
There may be other reasons or motives why false evidence has been given by such a witness. It is not for the accused to establish what they might be.
Experience has shown that once such a witness has given a version to the police which incriminates an accused, he or she may feel locked into that version, even if it contained inaccuracies or even if it were substantially untrue.

Anti-tendency direction: previous assault on Ms Taitoko

As discussed further below, I ruled that some of the evidence of the assault on Ms Taitoko the day prior to the fatal assault on Mr Froggatt could be admitted over objection. That evidence was admitted for the limited purpose of placing the evidence of Ms Taitoko in context. The assault on her was part of a connected series of events but the Crown did not rely on it as being relevant to the accused’s state of mind at the time of the fatal assault.
I have only had regard to this evidence in the limited way that the Crown relied on it. I have not used that evidence to reason that because the accused assaulted Ms Taitoko the day before the fatal assault he is more likely to have intended to inflict grievous bodily harm on Mr Froggatt. I have not used the evidence to reason that the accused is the type of person who would have intended to inflict grievous bodily harm when he fatally assaulted Mr Froggatt.

Evidence of blood

I admitted into evidence some crime scene photographs which were objected to. The background to their tender is discussed below. I have relied upon those photographs as being consistent with the evidence of the eyewitnesses as to what the accused did with Mr Froggatt’s body after the fatal assault. I have not, and could not, use those photographs to infer that there was any more significant blood loss than was established by the other evidence.

Evidence at trial

Only five witnesses gave evidence at the trial. The two eyewitnesses to the fatal assault on the deceased (Mariana Taitoko and Bonnie Cullen), the crime scene officer, Peter Watson, the forensic pathologist Dr Lea Murray and the Officer in Charge, Detective Senior Constable (“DSC”) Andrew Schepis.
Agreed Facts pursuant to s 191 of the Evidence Act 1995 (NSW) were tendered in the proceedings and marked Exhibit A. They provided the background and context to the issues in dispute at trial.
Exhibit B comprised a bundle of 139 photographs including crime scene photographs taken at the Unit 1/5-7 Levitt Street, Wyong (“the Unit 1” or “the unit”) and the post-mortem photographs. I shall refer to some of these in my discussion of the crime scene evidence and that of the forensic pathologist, Dr Lea Miller.
Exhibit C was a CAD plan of Unit 1. It depicted where the yellow markers were which are included in the crime scene photographs in Exhibit B. In conjunction with Exhibit B, it was helpful in understanding the layout of Unit 1 where the fatal assault occurred.
Exhibit D was the FASS (Forensic & Analytical Science Service) report dated 6 February 2025. None of the DNA evidence was challenged by the accused and the analyst was not required for cross-examination.
Exhibit E was a document headed “Forensic Evidence Summary” which cross-referenced the swabs and other items collected by the crime scene officer with their later DNA analysis as found in Exhibit D. I ultimately did not need to consider much of what was in Exhibit D considering the agreed contents of Exhibit E which I will refer to below.
Exhibit F was a bundle of photographs taken of the injuries to Ms Taitoko the day before the fatal assault on the deceased. There was an objection to these photographs on the basis of relevance and I ultimately excluded them.
Exhibit G was a summary of relevant telephone records. The summary included a number of calls between the accused and Ms Cullen on 25 January 2023 in which he expressed his strong desire that nobody attend Unit 1 and his concerns about his property being taken. Again, objection was taken to some of these calls on the basis of relevance/unfair prejudice and I excluded some of them on that basis.
Exhibit H was two photographs depicting the injuries inflicted to Ms Cullen by the accused when he hit her with the gold chain.
Exhibit J was the post-mortem report of Dr Miller dated 28 February 2024.
Exhibit K comprised three diagrams drawn by Dr Miller: K1 was an A3 diagram of the injuries to the deceased's head, K2 was a diagram of the injuries to the front of his body and K3 was a diagram of the injuries to the back of his body.

Defence exhibits

Exhibit 1 was a crime scene photograph showing a photo of purple garbage bags in a kitchen drawer.
Exhibit 2 was a crime scene photograph showing a knife located under the bed in the second bedroom.
Exhibit 3 were screen shots of Ms Cullen when first arrested from the body-worn video (“BWV”) taken by police and during her short interview with police.
Exhibit 4 were some of the post-mortem photographs marked by Dr Miller to indicate where there had been decomposition of the deceased’s body.

Factual findings

I make the following factual findings (noting that many of them formed part of the Agreed Facts).
As at January 2023, the accused was living with Bonnie Cullen in Unit 1. Ms Cullen was renting it from the Department of Communities and Justice (Housing NSW). The accused had been staying with Ms Cullen for a number of months. They were in an intimate relationship, however, as at the time of the alleged offence, the relationship was dysfunctional, and the accused was in the process of moving out of the unit. The accused was supplying small quantities of methylamphetamine (“ice”) to other persons out of Unit 1. [1]
1. Agreed Facts at [1]

Sean Froggatt (“the deceased”) was living in Unit 8 of 5-7 Levitt Street, Wyong. Mr Froggatt lived at that address with a roommate named Rodney Dickinson. He received support through the National Disability Insurance Scheme for medical conditions including schizophrenia and epilepsy (for which he was medicated). Mr Dickinson received a regular payment from Centrelink as Mr Froggatt’s nominated carer. Mr Froggatt was supplying small quantities of cannabis to other persons out of Unit 8. [2]
2. Agreed Facts at [2]
In the week commencing Monday 23 January 2023, Mariana Taitoko was staying at 9 Howarth Street, Wyong. The premises at 9 Howarth Street was a few blocks away from Unit 1 (separated by a five-to-ten-minute walk). Ms Taitoko and Ms Cullen were friends. [3]
3. Agreed Facts at [3].
On 25 January 2023, there were 22 missed calls from the accused to Ms Cullen (between 12:51:23 and 15:31:53). One call was answered (at 12:51:29), it lasted around eight seconds, but the content of that conversation is not known. There were no calls from Ms Cullen to the accused that day. The accused sent 106 text messages to Ms Cullen that day (between 13:01:45 and 15:35:19) and Ms Cullen sent 21 text messages to the accused (between 13:07:08 and 15:32:34).
The accused’s text messages to Ms Cullen were abusive and mostly relating to their relationship ending, the logistics of him moving out of the unit and his desire to collect his belongings. Some of the messages the accused sent to Ms Cullen and Ms Cullen’s occasional responses are extracted below:

at 1:08:19pm, “Picck up dog”,

at 1:10:24pm, Ms Cullen responded, “Just text me Ur to abusive”;

at 2:01:20pm, “You busy working with open legs or what need a reply”;

at 2:13:15pm, “I see you packed your bags and left”;

at 2:16:46pm, “Im waiting for some one 2 help me move my shit”;

at 2:20:20pm, Ms Cullen messaged, “I’m not throwing U out I’m asking U to leave Civily”;

at 2:20:40pm, the accused messaged, “I cant move easily”;

at 2:20:46pm, “I have so much shit here”;

at 2:20:46pm, “I am moving”;

at 2:20:49pm, “I have told you that”;

at 2:21:00pm, Ms Cullen responded, “I don’t have anyone to ask babe right now”;

at 2:21:44pm, “You have guys in and out when im not here so its hard 2 trust my shit here”;

at 2:22:45pm, “I want my stuff”;

at 2:27:41pm, “Bring your friend with you can come back and watch me pack and leave mate”.

On the morning of Thursday 26 January 2023, Ms Taitoko was in attendance at Unit 1. During the course of that day, the accused discovered that some property was missing from the unit, including a pink-coloured handbag, a set of keys to the unit and a watch. The accused believed that the property had been stolen from the unit, and that Mr Froggatt was the person responsible. [4]
4. Agreed Facts at [4].
Upon discovering that the property was missing, the accused became angry. He demanded that the property be located and returned. Ms Cullen left Unit 1, heading for 9 Howarth Street, in search of the pink-coloured handbag and the other items. She did not return to the unit for a number of hours. [5]
5. Agreed Facts at [5].
While Ms Cullen was absent from Unit 1, the accused violently assaulted Ms Taitoko in the second bedroom of the unit (“the spare bedroom”). The assault lasted a number of hours, and included the accused pulling Ms Taitoko by the hair, punching her to the face and head, striking her to the body with punches and kicks, burning her skin with a jet lighter, and striking her to the head with the jet lighter. [6]
6. Agreed Facts at [6].
As a result of the accused’s sustained assault, Ms Taitoko occasioned extensive and significant bruising to her face and head including but not limited to a subdural haematoma overlying her left parietal and frontal lobes, a large scalp haematoma at the back of the head and extensive bruising and swelling around both eyes. She also sustained extensive bruising to the left shoulder and 17 superficial dermal burns of various sizes to the neck, left breast, stomach, forearms, upper left arm, upper left back behind the shoulder, left torso, middle of the back and thighs. [7]
7. Agreed Facts at [7].
While the accused was assaulting Ms Taitoko, Ms Cullen returned to 9 Howarth Street, however she was unable to locate the missing property. At some stage after Ms Cullen left 9 Howarth Street, occupants of that premises (Ernesteen “Sissy” Peterson and Tori Nunn) found the pink handbag, the keys and watch. Ms Peterson and Ms Nunn then walked those items to Unit 1 in order to return them. The accused stopped assaulting Ms Taitoko when the handbag, keys and watch were returned. The assault had commenced when it was still daylight on Thursday 26 January 2023, and ceased sometime after dark (that is, sometime after the sun had set at around 8:00pm that day). [8]
8. Agreed Facts at [8].
When the handbag was returned, and the assault had ceased, Ms Taitoko fell asleep in the spare bedroom at Unit 1. She slept through the night and awoke the following morning in the spare bedroom. Ms Taitoko was in pain and feeling tired from her injuries. She remained at the unit throughout the day on Friday 27 January 2023. [9]
9. Agreed Facts at [9].
At about 12:30pm on Friday 27 January 2023, Mr Froggatt was collected from his unit by a disability support worker (Mr Pusko) and driven to the Toukley Community Health Centre (at 1A Hargraves Street, Toukley) for a routine medical appointment. The appointment was at 1:00pm, and it lasted for about 15 minutes. Mr Froggatt was dropped home by Mr Pusko at about 1:40pm. Mr Froggatt was wearing a jumper or t-shirt, tracksuit pants, socks, and slides or sandals on his feet. Mr Pusko observed Mr Froggatt to be dishevelled and to lack personal hygiene but did not record him to be suffering from any injuries. [10]
10. Agreed Facts at [10].
At about 4:30pm, the accused left Unit 1 and travelled to Wentworthville in Sydney (to purchase “ice”). The accused was driven to Wentworthville by a neighbour named Darren Thornthwaite (who resided in Unit 7 at 5-7 Levitt Street, directly above the accused and Ms Cullen). At 4:45pm, the accused sent Ms Cullen a text message that said, “Dont let no random cunts in the house still till I get my sound bar ps4 you can keep the tv I never really watch it tbh”. [11]
11. Agreed Facts at [11].
Although Ms Taitoko did not remember the text in those terms, she saw a message on a telephone Ms Cullen had loaned her, which she ultimately accepted was Ms Cullen’s telephone, which said something like “nobody should be there when I get back”. [12] Ms Cullen’s evidence was that she had an Optus telephone which she let Ms Taitoko use. She saw a message on it and replied to it. The accused was asking for his belongings. He said that “if anyone’s in the unit, get them out”. [13]
12. Tcpt, Monday 17 February 2025, p. 40.
13. Tcpt, Tuesday 18 February 2025, p. 91.
The accused called Ms Cullen five times between 6:06:58pm and 6:09:34pm; all calls were missed. Ms Cullen made four calls to the accused (between 6:09:10pm and 8:11:38pm) with three of them missed and the last one answered. Prior to the last call, their only communication was via text messages (on five occasions). There was the following exchange between them:

At 6:25:15, the accused said, “Stupid hooker you think your on the phone being a fuckwit”

At 6:38:19, Ms Cullen responded “I was breathing only and I told U y wat up plz babe?”

At 6:38:49, she sent another text message saying, “I’m not doing anything I’m just here have even slept Yet so Calm down plz”

Telephone records indicate that the accused was still out when he and Ms Cullen had their only telephone conversation that day at 8:11:38pm.
Earlier that day, whilst the accused was absent from Unit 1, Ms Cullen arranged for Mr Froggatt to attend the unit to supply herself and Ms Taitoko with cannabis. Mr Froggatt went to the unit and remained there for a period of time, smoking cannabis with Ms Cullen and Ms Taitoko in the loungeroom. While Mr Froggatt was at Unit 1, another unknown male came to the unit for a short time. The unknown male wanted to speak to the accused and left when advised that the accused was not there. Mr Froggatt left Unit 1 (returning to his own unit) after smoking some cannabis with Ms Cullen and Ms Taitoko. [14]
14. Agreed Facts at [12].
Ms Taitoko’s evidence was that the only time she ever met Mr Froggatt was on that day when he came over to sell them some marijuana. She thought it was in the afternoon and the accused was not there. He stayed about 15 minutes. She did not observe any injuries on Mr Froggatt when she saw him that first time. She described another man attending Unit 1 in the accused’s absence as well, but she did not know him and he did not stay long. [15] Ms Taitoko’s evidence was that Ms Cullen paid for the cannabis with some of the accused’s “ice”. [16] The three of them consumed it in the main bedroom.
15. Tcpt, Monday 17 February 2025, pp. 38-39.
16. Tcpt, Monday 17 February 2025, p. 40.
Ms Cullen gave evidence that Mr Froggatt came over, looking for the accused about lunchtime. She purchased some cannabis from him. The three of them (Mr Froggatt, Ms Taitoko and Ms Cullen) all smoked some “cones”. Ms Cullen’s evidence was that she paid for it in cash and gave some of the cannabis back (presumably the cannabis they smoked together in the main bedroom). Another neighbour came in, but she could not remember his name. He was looking for the accused. [17]
17. Tcpt, Tuesday 18 February 2025, pp. 90-91.
The accused and Mr Thornthwaite returned to 5-7 Levitt Street at some time around 8:00pm to 8:30pm. At some point after returning to Unit 1, the accused became angry, because he believed that some of his property had been removed from the unit in his absence. The accused was yelling at Ms Cullen and Ms Taitoko, demanding to know who had been at the unit when he was out, and accusing them of performing sex work from it in his absence. The accused struck each of Ms Cullen and Ms Taitoko while yelling at them. Ms Taitoko eventually told the accused that both Mr Froggatt and an unknown male had attended the unit when the accused had been out that day. [18]
18. Agreed Facts at [13].
Ms Taitoko gave evidence generally consistent with the agreed fact. Her version was that the men arrived back at about 5:00pm and that Mr Thornthwaite, who she could not identify, did not stay long. [19] In cross- examination she agreed that when questioned by the accused Ms Cullen denied that other persons had been in Unit 1 when he was out. Her evidence was that it was she (Ms Taitoko) who eventually told the accused that Mr Froggatt had come around with the second male. She agreed that once she gave him that information, she was not the target of his anger anymore.
19. Tcpt, Monday 17 February 2025, p. 41.
Ms Cullen’s version was that the accused returned in the afternoon closer to “teatime” with Darren Thornthwaite. Mr Froggatt had left by then. The four of them all smoked some “ice” and Mr Thornthwaite then left. [20] Her evidence was that the accused became enraged as to whom had been in Unit 1. He punched and kicked both Ms Cullen and Ms Taitoko. He believed they were working out of the unit as sex workers and he also thought he lost his watch. He slapped Ms Cullen a number of times on the face. [21] He also punched Ms Taitoko to the head a couple of times. He kept asking who had been at the unit and accusing them of having worked out of it. They denied it. Ms Cullen had forgotten that Mr Froggatt had come over. When she remembered it and told him, she did so in the context of being struck. After this was mentioned, the accused became enraged and wanted Mr Froggatt to come around. There was shouting. This was in the early hours of the morning. [22]
20. Tcpt, Tuesday 18 February 2025, pp. 91-92.
21. Tcpt, Tuesday 18 February 2025, p. 93.
22. Tcpt, Tuesday 18 February 2024, pp. 93-95.
Meanwhile, after returning from Sydney, Mr Thornthwaite spent some time in the garage area of the unit block. From his position in the garage area, Mr Thornthwaite could hear banging noises coming from Unit 1. Mr Thornthwaite heard the accused saying things like, “where is it?” and “who is it?”, followed by occasional thumping or slapping sounds. Mr Thornthwaite heard another person groaning and mumbling things like, “Ow!” and “Don’t”. [23] What Mr Thornthwaite heard is consistent with the accused assaulting both women at that time.
23. Agreed Facts at [14].
Mr Froggatt did not have a working mobile telephone at the time, but was contactable through his roommate and carer, Rodney Dickinson. At 10:55pm on Friday 27 January 2023, the accused called Mr Dickinson, however Mr Dickinson missed the accused’s call. Mr Dickinson returned the accused’s call one minute later (at 10:56pm). Call charge records indicate that this returned telephone call lasted 2 minutes and 11 seconds. [24]
24. Agreed Facts at [15].
At 11:25pm, the accused placed a further call to Mr Dickinson. Call charge records indicate that this further telephone call lasted 32 seconds. Mr Dickinson was home at Unit 8 at the time of this call, together with Mr Froggatt who was asleep at the time. The conversation during this telephone call included words to the following effect: [25]
25. Agreed Facts at [16].

“Mr Dickinson: Hello.
The Accused: It’s me, is Sean there?
Mr Dickinson: Yeah, he’s asleep on the lounge.
The Accused: Have you been downstairs looking for me today?
Mr Dickinson: No.
The Accused: Was Sean down here looking for me today?
Mr Dickinson: No.
The Accused: Alright, tell Sean I’m home and to pop down and see me when he’s awake.
Mr Dickinson: No worries, will do.”

Mr Froggatt woke up about ten minutes after the above telephone call. Mr Dickinson told him that the accused was at Unit 1 and wanted to see him. Mr Froggatt left Unit 8 and went downstairs to see the accused at Unit 1. Mr Dickinson believes that Mr Froggatt was wearing tracksuit pants and a long sleeve shirt. Mr Dickinson did not recall him having any injuries when he was leaving Unit 8, and Mr Froggatt had not mentioned any. [26]
26. Agreed Facts at [17].

The fatal assault

From a time after midnight on the evening of Friday 27 January 2023, the accused physically assaulted Mr Froggatt within the spare bedroom at Unit 1. This physical assault caused the death of Mr Froggatt. [27]
27. Agreed Facts at [18].
After Mr Froggatt went to Unit 1, Mr Dickinson went to bed and fell asleep. Mr Dickinson woke at about 1:40am and noticed that Mr Froggatt had not returned home. At 1:41am, Mr Dickinson placed a call to the accused’s mobile telephone, however the accused did not answer. At 2:38am, Mr Dickinson sent the accused a text message that said, “Hey bro, u still awake? Is Sean there”. The accused did not respond. [28]
28. Agreed Facts at [19].
On the evening of Friday 27 January 2023, Drew Harper-Thornthwaite was staying with his father (Darren Thornthwaite) at Unit 7 of 5-7 Levitt Street (directly above Unit 1). That evening, sometime after dark, Mr Harper-Thornthwaite heard a loud bang in Unit 1, followed by Mr Froggatt’s voice. Mr Froggatt said, “oh fucking hell”. Mr Harper-Thornthwaite then heard a few more bangs, followed by the accused’s voice. Mr Harper-Thornthwaite heard the accused yell, “shut the fuck up”. For the next 30 minutes, Mr Harper-Thornthwaite heard multiple bangs and multiple voices yelling. The loud noises were not constant but were happening every now and again. Mr Harper-Thornthwaite fell asleep after hearing noises for that 30-minute period. [29]
29. Agreed Facts at [20].
At around 3:00am, Gerald Ellis and Bailey Hammond attended Unit 1 to purchase “ice” from the accused. No one answered the door at the unit, despite Mr Ellis and Mr Hammond knocking loudly on the front door, on and off, for a number of hours. [30]
30. Agreed Facts at [21].
Mr Froggatt was fatally assaulted in the early hours of 28 January 2023. Both Ms Taitoko and Ms Cullen witnessed the fatal assault. They gave broadly similar accounts of the actual assault and were only challenged on discrete parts of their evidence. I accept their evidence to the extent that it is consistent with each other and not challenged. I will identify those portions of their evidence where I prefer one of their accounts to the other in my deliberation below.

Ms Taitoko

When Mr Froggatt arrived, the accused began yelling at him because he had come over earlier, and Ms Taitoko, Ms Cullen and Mr Froggatt were all taken to the second bedroom. Once in that room, Ms Taitoko described how the accused “just kept punching ‘[Mr Froggatt] in the head”. She also stated: [31]

“Daniel started getting angry and hitting Sean. I was on the ground next to the bed and Bonnie was on the bed, and every time Daniel was hitting Sean, Bonnie would get up to try stop him from doing it and he’d throw her back on the bed and come over and punch me in the face and he’d go back to Sean. It was just like going back and forward from me to Sean to Bonnie. He was just punching Sean.”
31. Tcpt, Monday 17 February 2025, p. 44.

The accused punched Mr Froggatt in the head about eight times. She described it as a normal punch to his head and his face with a closed fist. Mr Froggatt was crying and telling the accused to stop. Mr Froggatt was taller than the accused but smaller than him. Ms Taitoko stated that the accused also punched Mr Froggatt in the stomach about four times and that he “just kept hitting him” in the head and in the stomach. The accused also hit her (Ms Taitoko) with a chain. [32]
32. Tcpt, Monday 17 February 2025, pp. 44-45.
Ms Taitoko did not think that Mr Froggatt threw any blows. The accused stopped hitting Mr Froggatt only when he said, “the Yugoslavs set you up”. The accused then left the room with Ms Cullen. He turned the light out and closed the door. She was left alone in the room with Mr Froggatt. She could not see but she could hear him on the ground trying to breathe. His breathing was “raspy”, and he was gasping for air. It started after the accused left the room and went for about ten minutes. Mr Froggatt tried to crawl towards her, but she was scared and could not move. She was sitting on the floor “trying not to cry”. [33]
33. Tcpt, Monday 17 February 2025, pp. 46-47.
About 15 minutes later, the accused and Ms Cullen came into the room. Mr Froggatt had stopped breathing. The accused told Ms Taitoko to bring him back to life. She tried mouth-to-mouth resuscitation and chest compressions. The accused told her to put “ice” in his “bum” and breathe it into his mouth. She did this but it did not work. [34]
34. Tcpt, Monday 17 February 2025, pp. 48-49.
Feeling sick, Ms Taitoko fell asleep. She agreed that she remembered the incident better at the time she gave her statement than now and that she receives Depot injections for mental health issues. [35]
35. Tcpt, Monday 17 February 2025, pp. 49, 54, 60.
At the conclusion of her evidence in chief, the Crown foreshadowed an application under s 38 of the Evidence Act but, ultimately, the witness instead had her memory refreshed by having portions of her police statement and body-worn video transcript put to her. She agreed that the accused may have kicked Mr Froggatt in addition to punching him. After portions of her body-worn video transcript were read to her, she remembered the accused kicking Mr Froggatt to the head as well. She agreed that they were “big punches” and that they were all “big kicks”. [36]
36. Tcpt, Monday 17 February 2025, pp. 63-64.
When Ms Taitoko was cross-examined about the accused’s attitude towards his “ice”, she said that he was not angry when he walked in but became angry when he found out that Mr Froggatt had come over and he thought some of his “ice” was missing. She agreed that he also might have got upset about the fact that he thought that she and Ms Cullen were working out of Unit 1. She agreed that the accused did not normally share his “ice” and that he was protective of the “ice” he had and did not want to waste it. [37]
37. Tcpt, Monday 17 February 2025, pp. 69-70.

Ms Taitoko agreed that Mr Froggatt was wearing long pants and a long sleeve top and stated that he looked “sickly…real tired” and that she did not pay much attention as to whether he had any marks on him or not already. [38]
38. Tcpt, Monday 17 February 2025, pp. 71-72.
Ms Taitoko agreed that the accused was asking Mr Froggatt to tell him the truth about the missing “ice”, but that Mr Froggatt kept saying “I don’t know” and “I don’t know what you’re talking about”. Each time Mr Froggatt did not answer the question the accused punched and/or kicked Mr Froggatt. She described the punches and kicks as “ongoing” in that the accused kept asking questions and then punched. She agreed that they were broken up by either of them saying things. [39]
39. Tcpt, Monday 17 February 2025, pp 74-75.
Ms Taitoko first described the punches as “big punches” and “big kicks” however in cross-examination described them as “just normal punches” and “they were just punches”. Mr Froggatt was still conscious during the punches and kicks, but he was not saying much and “was just crying”. He did not remain awake and alert for long because he passed out probably 15 minutes later. She stated that she did not know if Mr Froggatt started to bleed much before the lights were turned out, she “couldn’t tell”. [40]
40. Tcpt, Monday 17 February 2025, pp. 74-76.
In cross-examination, Ms Taitoko stated that she tried to resuscitate Mr Froggatt for 35 to 40 minutes pressing on his chest with all her weight and agreed she may have cracked a few ribs. At the request of the accused, she also breathed “ice” into his mouth. She was worried about there being a “little bit of blood on his face” but she could not tell where it was coming from. She agreed that she then put about 100 dollars’ worth of “ice” into Mr Froggatt’s bottom. She agreed that the accused was “a little bit” in a panicked state. The body was then covered with a sheet and her recollection was that Mr Froggatt had not been moved out of the bedroom by the time she left. [41]
41. Tcpt, Monday 17 February 2024, pp. 80-82.

Ms Cullen

Ms Cullen’s evidence was that when Mr Froggatt came around the four of them went to the second bedroom. She was standing between the accused and Mr Froggatt and Ms Taitoko was at the end of the bed on the window side. The accused hit Mr Froggatt to his head with a closed fist. Ms Cullen said, “It wasn’t him, it wasn’t him”, but the accused continued to hit Mr Froggatt to his head and he fell to the floor, the blows being “very forceful”. There were more than ten punches. The accused then kicked him, and both Ms Cullen and Ms Taitoko were hit as well with a closed fist to the head. [42]
42. Tcpt, Tuesday 18 February 2024, pp. 95-96.
In response to the accused’s questions as to who had been to Unit 1, Mr Froggatt kept saying “I don’t know what you’re talking about”. Mr Froggatt did not throw any punches. When he fell to the ground, he put his arms up to cover his face. He was kicked about five times to the abdomen and upper body (his chest and torso). She did not see any kicks to the head. [43]
43. Tcpt, Tuesday 18 February 2024, pp. 96-97.
The accused whipped the three of them (Ms Cullen, Ms Taitoko and Mr Froggatt) with a gold chain about five to ten times. Ms Cullen said she was struck on the upper arm and a couple of other places. The accused kept saying “Tell us who’s been in the apartment. Youse are gonna die if you don’t tell me who’s been in the apartment”. Upon being struck with the fists, Mr Froggatt fell on the ground when he was kicked and struck with a chain. He had swelling on his face and his breathing was heavy. [44]
44. Tcpt, Tuesday 18 February 2024, pp. 97-98.
Mr Froggatt was moving on the ground a bit and then stopped and was just laying there. The incident in the bedroom took about half an hour to 40 minutes. The accused then took Ms Cullen outside. They kept arguing outside the door that was not shut. The accused kept asking who had been in the apartment with Ms Cullen denying that it was anybody he did not know. They were out of the room for about half an hour to an hour. When they went back, they used the light from the mobile telephone and saw that Ms Taitoko was at the end of the bed and Mr Froggatt was on the floor. [45]
45. Tcpt, Tuesday 18 February 2025, pp. 98-99.
The accused then saw that Mr Froggatt was struggling to breathe and that he was “gurgling”. He asked Ms Taitoko to do CPR which she did by breathing into his mouth. It was not working. She was getting no breath back. The accused told her to give him some “ice” which she did. He told her to put it in his anus which she did, but this made no difference. Ms Cullen told the accused that it would not work. Mr Froggatt continued gurgling but not for long. He was soon deceased. Ms Taitoko said that there was no pulse. [46]
46. Tcpt, Tuesday 18 February 2025, pp. 99-100.
Ms Cullen was cross-examined. She said that the accused did not keep “ice” in her unit. He was a small-time user who sold it to neighbours. She thought that he had money by the door and gave Mr Froggatt money and some of the “pot” back in payment for the cannabis he sold that day. [47]
47. Tcpt, Tuesday 18 February 2025, pp. 103-104.
Ms Cullen’s evidence was that the accused and Mr Thornthwaite came back together to Unit 1, and they had also left together earlier in the day. Once they returned, they all had “ice” together. Ms Cullen stated that they only had a small amount, and the accused was not protective of or agitated about his “ice”. He was agitated about who had been in the apartment. He had an expensive watch that was missing, and he was angry about the watch. It was suggested to Ms Cullen that the accused had got his watch back the day before, and she agreed. Ms Cullen then agreed that the accused was instead angry at this stage about someone being in the unit that day. [48]
48. Tcpt, Tuesday 18 February 2025, pp. 104-106.
When Mr Froggatt arrived, the accused started interrogating him about the “ice” that was missing and whether he knew about the prostitution or about the other male. He asked whether he had been in Unit 1 and Mr Froggatt kept saying that he did not know who had been there. The accused kept punching and kicking him in response. The assault went on for about 30 minutes. Mr Froggatt was conscious. He was able to respond at that stage but started to struggle towards the end. [49]
49. Tcpt, Tuesday 18 February 2025, pp. 107-108.
Both Ms Cullen and Ms Taitoko were also being punched during the assault on Mr Froggatt. Ms Cullen said she could not remember whether Mr Froggatt said, “the Yugoslav has set you up” but she did remember that Mr Froggatt said, “do you want to know about some guy”. She thought it was “nonsense” and “gibberish”, and the accused kept assaulting him. [50]
50. Tcpt, Tuesday 18 February 2025, p. 109.
Part of the facts sheet Ms Cullen had pleaded guilty to was put to her. She agreed that they stated that the accused was angry because the “ice” was missing. She responded that she was not 100% sure why the accused was agitated, and that Ms Taitoko might have remembered this better than her. [51]
51. Tcpt, Tuesday 18 February 2025, pp. 109-110.
Ms Cullen and the accused then left the room, and Mr Froggatt was on the floor at this time and was still not talking. When Mr Froggatt was not responsive, the accused turned his focus on to Ms Cullen and Ms Taitoko. She could hear heavy breathing from Mr Froggatt and there was swelling to his face. The swelling was significant from being punched. It was inflamed and red to the right-hand side of the face. [52]
52. Tcpt, Tuesday 18 February 2025, p. 111.
Ms Cullen agreed that when she was later arrested, she told police, “It was very violent and it was out of my control. I want a lawyer.” She did not otherwise speak to police. She told police that she had not been well as she had not been taking her medication, she was on “ice”, and she had not slept. [53]
53. Tcpt, Tuesday 18 February 2025, p. 112.
At Wyong police station, soon after being arrested, she was asked when the last time she saw Mr Froggatt was. She responded that she lost track of days at that time. She said she was “half with it” and she wasn’t very coherent. She felt “scattered” when interviewed. [54]
54. Tcpt, Tuesday 18 February 2025, pp. 112-113.
Some months after her arrest, Ms Cullen was served with the brief which included Ms Taitoko’s statement. She also had the BWV transcript. She did not watch the video or read the transcript, but her lawyers told her about it. There was a long dense fact sheet, and her lawyers went through it with her. She took out things she could not remember. Ms Cullen stated that it appeared that Ms Taitoko remembered more. She knows that Mr Froggatt said something to the accused, and he kept assaulting him, but she may have forgotten things in the room or been unable to properly process them. It was suggested to her that it was possible that things Ms Taitoko had said happened after she left the room had become fixed in her own mind. She responded that this was not possible, despite being scattered at the time. [55]
55. Tcpt, Tuesday 18 February 2025, pp. 113-115.
When Ms Cullen entered the room again later, she said that Mr Froggatt was in the same position laying down. She was not sure if he was breathing when she left the room, but he was unresponsive. He was gurgling before she left the room, and gurgled a few times once she re-entered the room later. When she left the room, he was on his side and not moving. She did not try to help him or talk to him. Nobody was saying anything to him.
Ms Cullen believed that the accused wanted Mr Froggatt to recover so Ms Taitoko attempted to resuscitate him. The accused had dragged him by the body, on his back, to the end of the bed before Ms Taitoko began resuscitating him. After the period of resuscitation, there was also a period where Ms Cullen saw Mr Froggatt’s body shaking like a seizure or a convulsion and he was gurgling. He was still gurgling when she gave him the “ice”. [56]
56. Tcpt, Tuesday 18 February 2025, pp. 118-20.
The accused was “psycho” until police arrived. He was quite erratic and uncontrollable prior to this, over the two day period, to the point that Ms Cullen felt she could not reason with him. She was asked whether her perception that he was “psycho” over the whole period was a mistaken view during cross-examination, and she responded that it was not. [57]
57. Tcpt, Tuesday 18 February 2025, p. 121.
Ms Cullen also noted that Mr Froggatt was hit with the chain in the context of not giving the answers he wanted. There was blood on the walls and clothing, and blood spatter. She remembered that he had blood on him and there was a puddle of blood on his face. [58]
58. Tcpt, Tuesday 18 February 2025, p. 122.
After morning tea break, it was suggested to Ms Cullen that she had been signalling to her mother in court. She responded by indicating that her mother was smiling at her and denied that she was answering consistently with her mother’s gestures. She denied seeing her mother mouthing anything. [59]
59. Tcpt, Tuesday 18 February 2025, pp. 124-125.
As for the number of punches, where Ms Cullen said there were a bit more than ten, she stated that this was the impression now she has of the number, rather than counting them at the time. In relation to the punches being forceful, she said that this is something she noticed at the time, but she thought everything that the accused did that day was forceful. Additionally, he would say “you’re going to die if you don’t tell me”, and “made threats not only at the time of the CPR but quite often and directed to both of the women. [60]

Events after the fatal assault

60. Tcpt, Tuesday 18 February 2025, pp. 125-126.

Ms Taitoko

When Ms Taitoko woke up the next day it was daytime. She first stated that Mr Froggatt was still under a blanket in the bedroom [61] but when referred to her statement agreed having said that the body was gone because she could not tell whether there was a body under the blanket or not and that she just assumed that it was not in the room any more. [62] I am satisfied the body was moved while she was asleep.
61. Tcpt, Monday 17 February 2025, p. 50.
62. Tcpt, Monday 17 February 2025, pp. 65-66.
She used “Spray n’ Wipe” to clean up the bedroom. [63] She first said that it was her idea to do that and that the three of them cleaned the blood of the wall near the window and the bedside drawer. [64] She explained that the assault took place near the window. [65] When taken to her statement, she agreed that it was Ms Cullen who handed her the “Spray n’ Wipe” and told her to clean up with Ms Cullen watching her while she did that and make her do it again. [66]
63. Tcpt, Monday 17 February 2025, pp. 50, 52.
64. Tcpt, Monday 17 February 2025, pp. 51, 52.
65. Tcpt, Monday 17 February 2025, p. 51.
66. Tcpt, Monday 17 February 2025, p. 66.
In cross-examination, she agreed that she had said that it was she and Ms Cullen who had done the cleaning. She was sure that the accused was helping too but could not remember the details of what he did and could not remember whether he was helping them clean up or not. [67]
67. Tcpt, Monday 17 February 2025, pp. 82-83.
Ms Cullen then asked her to leave because her father was coming around the visit. When she got home, some friends were there, one of which called the police and she was taken to hospital. She spoke to the police at the hospital. [68]
68. Tcpt, Monday 17 February 2025, p. 53.

Ms Cullen

After Mr Froggatt died, the accused used the torch from his telephone and wrapped up Mr Froggatt’s body in a sheet after Ms Cullen confirming that he should do so. Ms Taitoko was lying down when that was happening, and Ms Cullen could not tell whether she was awake or asleep. [69]
69. Tcpt, Tuesday 18 February 2025, pp. 100-101.
Ms Cullen described how the body was moved to the laundry by the accused. Mr Froggatt’s body was dragged in by the sheet that he was in, he was on his back. [70] The accused subsequently moved Mr Froggatt’s body from the laundry to the bathtub in the bathroom. When asked how long after the “ice” incident Mr Froggatt was taken into the laundry, she said that it had not been that long but that he stayed in the laundry for some time. He was then moved to the bath. [71]
70. Tcpt, Tuesday 18 February 2025, pp. 101, 120.
71. Tcpt, Tuesday 18 February 2025, p. 121.
Ms Cullen then made a call to her uncle and did not see what happened next. [72]
72. Tcpt, Tuesday 18 February 2025, p. 103.
As a result of punching and kicking there was blood up the walls, on the curtains and on the floor, but primarily on Mr Froggatt. The accused told Ms Cullen and Ms Taitoko to clean the bedroom. They used “Chux” and “Windex”. She did the cleaning to appease the accused. [73]
73. Tcpt, Tuesday 18 February 2025, pp. 101-102.
Ms Cullen then told Ms Taitoko she needed to leave Unit 1 as her father was coming over. When Ms Taitoko left, she was not allowed to keep her backpack as there was blood on it. [74]
74. Tcpt, Tuesday 18 February 2025, pp. 102.

Inconsistencies in eyewitness evidence

The three areas of inconsistency in the evidence of the two eyewitnesses were:

Whether the deceased became unresponsive during the assault;

Whether the accused stopped assaulting the deceased when he gave him the answer he wanted; and

Whether there were visible injuries on the deceased before the accused stopped the assault.

I will resolve these disputed issues in my deliberation below. Otherwise, I do not consider there to be any significant differences between the accounts of these two witnesses.

Agreed Facts

At 10:08am on Saturday 28 January 2023, Mr Dickinson sent the accused a text message that said, “Morning bud, is Sean still down there at URS?”. At 10:41am, Mr Dickinson sent the accused a further text message that read, “He ain’t come home yet since he left and that’s unusual 4 him... Anyways, let me know ASAP please”. The accused did not respond to these text messages. [75]
75. Agreed Facts at [22].
At 3:01pm, the accused sent a text message to Darren Thornthwaite (from Unit 7) that said, “What’s up man”. At 3:10:13pm, Mr Thornthwaite responded, “I at work gettn cooked fuck hot im going to pack up get out here let you know when home”. At 3:10:43pm, the accused replied, “Sweet cya when your back home”. At 4:07pm and 4:10pm, the accused sent Mr Thornthwaite further text messages that said, “What you up to”, and “Anyone home?”. Mr Thornthwaite did not respond. [76]
76. Agreed Facts at [23].
At 5:29pm, Mr Dickinson placed a call to the accused’s mobile telephone, however the accused did not answer. At 5:30pm, Mr Dickinson sent the accused the following text message: “Cops are here”. [77]

The crime scene evidence

77. Agreed Facts at [24].

Peter James Watson.

Mr Watson is a crime scene officer based out of the Gosford Crime Scene section. He gave evidence that he attended Unit 1 at 10:30pm on 28 January 2023. [78] He took a number of photographs in relation to the crime scene, the post-mortem, the laundry sink items and the accused’s shoes and socks (Exhibit B) and prepared a CAD (computer aided design) plan for Unit 1 (Exhibit C).
78. Tcpt, Monday 17 February 2025, p 6.
Much of his evidence was not in dispute. It was quite detailed. I propose to only refer to those aspects of it which are relevant to the question of the accused’s intention and/or confirm the accounts provided by the two eyewitnesses.

Hallway

A bloodstain was observed on the hallway cupboard. [79] A sample was taken and the DNA recovered showed a mixture originating from at least three individuals. Mr Froggatt and Ms Cullen could not be excluded as contributors. [80]
79. Exhibit B, photographs 128 and 129.
80. Tcpt, Monday 17 February 2025, p. 10.

The kitchen

There were cleaning products in the kitchen area [81] and a standard block of kitchen knives. Mr Watson agreed in cross-examination that there were knives in the block [82] and there was also a knife found under the bed in bedroom 1. No assessment was made as to whether it came from the knife block. [83] The relevance of this is that there were knives available to the accused, but he did not use them.
81. Exhibit B, photograph 158.
82. Exhibit 2, photograph 192.
83. Tcpt, Monday 17 February 2025, p. 33.

Laundry

There was blood on the vacuum cleaner in the laundry under two blankets on the floor. [84] FASS analysis confirmed that it matched the DNA profile of Mr Froggatt. [85] This is consistent with the body being first moved from the second bedroom to the laundry before being moved to the bathtub.
84. Tcpt, Monday 17 February 2025, pp. 14-15; Exhibit B, photographs 194, 204 and 206.
85. Tcpt, Monday 17 February 2025, p. 16; Exhibit D, R65.
In cross-examination, Mr Watson was shown a photograph of the empty bath after the body was removed from. A pool of blood remained in the bath. He was asked whether it was tested to see if it contained urine or water, and he responded that there is no capability to test if a bloodstain is watered down in any way. [86]
86. Tcpt, Monday 17 February 2025, p. 34.

Second bedroom

It was an agreed fact that Mr Froggatt was fatally assaulted in the second bedroom. Mr Watson’s evidence was that blood was found in the second bedroom. He described the room and noted [87] a yellow cleaning sponge on top of the drawers next to the bed, and an apparent blood stain to the base. There was a window located on the eastern wall of the bedroom which had grey curtains that were closed over. There appeared to be staining on the curtains that were consistent with blood. The swab analysis returned a DNA profile matching Mr Froggatt. [88] No further testing was performed in relation to the stains on the curtains. On the northeastern corner of the bedroom was a white pillow with a large stain that appeared to be blood. [89]
87. Tcpt, Monday 17 February 2025, pp.16-17.
88. Tcpt, Monday 17 February 2025, p. 18.
89. Exhibit B, photographs 207-220.

Mr Watson evidence was that he also observed two small bloodstains on the small segment of the northern wall niche of bedroom 2. [90] A swab analysis of bloodstains on the wall [91] returned a DNA profile matching Mr Froggatt. [92]
90. Tcpt, Monday 17 February 2025, p. 17.
91. Exhibit B, photographs 221, 222 and 223.
92. Tcpt, 17 February 2025, p. 18.

Bathroom

Mr Watson’s evidence was that the deceased's body was in the bathroom when he commenced his investigations. He described the bathroom and observed a green cleaning sponge, rubber gloves and a bottle of “Windex” cleaning spray on the vanity and a scrubbing brush on the end of the bathtub. [93] The bath contained a number of blankets and bed linen which were covering the deceased. A small orange facecloth was hung over the shower screen. [94]
93. Tcpt, 17 February 2025, p. 19.
94. Exhibit B, photographs 228, 229 and 233.
The cleaning material he observed is consistent with the evidence of Ms Taitoko and Ms Cullen that they cleaned up after the fatal assault.
Mr Watson stated that he conducted a confirmatory blood test on each of the stains on the floor which all produced a positive result for the presence of human blood. He collected a swab from each of the blood stains for further analysis.
Mr Watson’s evidence was that the swab analysis of blood stains on the floor tiles [95] and at the base of the bathroom door returned the DNA profile matching Mr Froggatt. [96]
95. Tcpt, Monday 17 February 2025, p. 20.
96. Tcpt, Monday 17 February 2025, p. 21.
Mr Watson further observed the deceased’s body under the white doona. A blue fitted sheet was covering the head and neck area, and the deceased was wrapped in a blue and white doona cover. [97] The deceased was located in a supine position with both legs fully flexed at the knee. His feet were behind his hips, and his right arm was bent and laying across the chest region. The left arm was extended down the left side of the body. [98]
97. Tcpt, Monday 17 February 2025, p. 21.
98. Exhibit B, photographs 246, 255, 256 and 257.

Accused’s shoes and socks

The shoes and socks the accused wore at the time [99] were tested by another crime scene officer, Rachel Browne. [100] Bloodstains were observed on the accused’s socks. The DNA recovered from the blood swatch at the top right part of the sock showed that it originated from Mr Froggatt whereas the DNA recovered from the swatches on the toe of the right sock and the top of the sock showed it being a mixture originating from at least two individuals with Mr Froggatt being the major contributor. [101]
99. Exhibit B, photographs 4, 5, 6, 10, 11, 25, 26, 29, 32, 33, 34 and 36.
100. Tcpt, Monday 17 February 2025, p. 30.
101. Tcpt, Monday 17 February 2025, p. 30.
Mr Watson’s evidence was that bloodstains were also observed on the accused’s shoes. [102] The DNA recovered from the blood swatch taken from the outer toe area of the left shoe showed it to be a mixture originating from at least three individuals with the major contributor to the mixture having the same profile as Mr Froggatt. [103] The DNA matching the profile of Mr Froggatt was recovered from the blood swabs taken from the inner sides of the shoes. [104]
102. Exhibit B, photographs 25, 26, 29, 32, 33, 34 and 36.
103. Tcpt, Monday 17 February 2025, pp. 31-32.
104. Tcpt, Monday 17 February 2025, p. 32.
In cross-examination Mr Watson explained that no pattern analysis was done to confirm the mechanism by which Mr Froggatt’s blood came to be on the accused’s socks due to the fact that the fluid blood gets absorbed in the fabric causing the pattern to change and that even if the blood was diluted it would still be blood there. He also stated that no splatter analysis was done on the accused’s shoes and that there was no testing capability available to date the blood to establish when the blood was deposited on the socks and the shoes. [105]
105. Tcpt, Monday 17 February 2025, pp. 36-37.

Chains

Mr Watson located a gold and a silver chain from the laundry sink. [106] It was accepted that the link pattern on the chains appeared to match the injuries to the deceased's arms (from when he was whipped by the accused during the fatal assault).
106. Tcpt, Monday 17 February 2025, p. 15; Exhibit B, photographs 194, 199.
In cross-examination, Mr Watson stated that the chains were mixed up with the hair and fluff in the sink and that he collected them as a bulk item. [107] He disagreed that the hair was mixed up in and out of the links of the chains. He stated that it was possible that they came from separate places (his impression was that it came from the water from the washing machine) but that he was unable to determine that. [108]
107. Tcpt, Monday 17 February 2025, p. 33.
108. Tcpt, Monday 17 February 2025, p. 34.

Luminol testing

Mr Watson was aware that there had been an attempt to clean the premises after the passing of the deceased [109] and he was aware of this before the luminol screening was done. [110]
109. Tcpt, Monday 17 February 2025, pp. 9-10.
110. Tcpt, Monday 17 February 2025, pp. 26-27.
He conducted a luminol examination on the premises. A chemical in luminol reacts with a certain component of blood causing production of blue light luminescence. A luminol examination is a presumptive screening on the basis that it does not confirm that what is observed is blood, because luminol also reacts with other substances such as bleach or peroxide which are common ingredients in cleaning products. [111]
111. Tcpt, Monday 17 February 2025, p. 26.
Mr Watson explained the process of luminol screening as first taking a photograph in daylight, then applying a luminol substance, then taking of another photograph in darkness, and then overlaying the two photographs on top of each other. [112] Luminol examinations were conducted in the laundry, [113] the hallway, [114] the bedroom 2, [115] and the bathroom floor [116] Mr Watson’s evidence was that there was a confirmatory test for human blood from a sample taken from the bathroom floor. [117]
112. Tcpt, Monday 17 February 2025, p. 27.
113. Exhibit B, photographs 365-370.
114. Exhibit B, photographs 371-373.
115. Exhibit B, photographs 374-380, 382, 385, and 388.
116. Exhibit B, photographs 389-391.
117. Tcpt, Tuesday 17 February 2025, pp. 28-29.
By way of explanation of what was depicted in the photographs, the luminol showed a pool of liquid in the area where the pool of blood was found in the laundry and also drag marks in the hallway consistent with the body being dragged to the bathroom. Luminol also showed up extensively on the bathroom floor.
In cross-examination, Mr Watson agreed that he could not exclude bleach being the cause of marks because luminol as a screening tool gives an indication as to what might be there. It could still show one or the other. [118] He also stated that substances other than blood that react with luminol could remain for months and years after an event and that it was possible that the cleaning could have occurred before the death of the deceased. [119]
118. Tcpt, Tuesday 17 February 2025, pp. 35-36.
119. Tcpt, Tuesday 17 February 2025, p. 36.

Chain marks

Mr Watson’s evidence was that marks consistent with a chain were developed during the fingerprint examination of bedroom 2 and the bathroom, namely on the interior surface of the bedroom 2 door [120] and on the bathroom tiles (just above the tap). [121] In his opinion those marks were similar to the links on the chain marks observed on the deceased. [122]
120. Tcpt, Tuesday 17 February 2025, p. 25; Exhibit B, photographs 350, 351, 352 and 353.
121. Tcpt, Tuesday 17 February 2025, p. 26; Exhibit B, photographs 358 and 362.
122. Tcpt, Tuesday 17 February 2025, p. 25. Exhibit B, photographs 261, 262, 263, 265, 266, 267.
In cross-examination, Mr Watson confirmed that no formal comparison was performed in relation to the markings observed on the door and on the bathroom tiles and the chains that were seized on the basis that the pathologist did not believe they were the cause of death. He also confirmed that it was impossible to date them. [123]
123. Tcpt, Monday 17 February 2025, p. 35.

Officer in Charge

DSC Andrew Shepis gave evidence that a triple-0 call was received at 4:28pm on 28 January 2023 in relation to injuries inflicted on Ms Taitoko (she had arrived home by then). They attended the accused’s premises at 5:30pm that day. The accused was arrested, and they took his joggers and socks. It was only when they did a sweep of Unit 1 that they found Mr Froggatt’s body located in the bath. Ms Taitoko had told them that was where it would be. A crime scene was established.
When the accused was spoken to, he exercised his right to silence.
DSC Shepis was briefly cross-examined. He was asked about Ms Cullen’s state when she was interviewed. He was shown photographs of Ms Cullen with her head resting on the table in the interview room and stated that one of the images concerned the extent to which Ms Cullen lifted her head during that interview. The images were from body-worn footage when police first attended the units and from the recorded police interview later that evening.
DSC Schepis was also questioned about his interaction with Ms Cullen’s mother while Ms Cullen was giving evidence. He said that Ms Cullen’s mother denied doing anything to influence the trial, and he reminded her to “just please don’t do anything”. [124]
124. Tcpt, Tuesday 18 February 2025, pp. 134-136.

Dr Lea Murray

Dr Leah Murray (nee Clifton), forensic pathologist, performed the autopsy on the deceased. The evidence was given by reference to the post-mortem examination report (“the post-mortem report”) (Exhibit J) dated 28 February 2024 which she had prepared.
Dr Murray first confirmed that the appearance of the injuries reflected that they all occurred at or around the time of death, being “perimortem”. [125] The overall pattern of some of the injuries are suggestive of “defensive” type injuries implying that the deceased tried to defend himself and, for example, instinctively put up his hands in front of his body to protect himself. [126] This is indicative from the injuries on the deceased’s forearm and upper arms. [127]
125. Tcpt, Wednesday 19 February 2025, p. 142; Post-mortem report, p. 3.
126. Tcpt, Wednesday 19 February 2025, pp. 153-154; Post-mortem report, p. 3.
127. Tcpt, Wednesday 19 February 2025, p. 154; Exhibit B, photographs 414-415, 499.
The Crown took Dr Murray through the post-mortem report with respect to various injuries of the deceased. The injuries were described with respect to those to the head and neck, injuries to the front of the body, and injuries to the back of the body, which correspond to Exhibits K1-K3. Together, Dr Murray identified a total of 71 external injuries on the body of Mr Froggatt. [128]
128. Tcpt, Friday 21 February 2025, p. 190.
With respect to the injuries to the head, Dr Murray noted the following results arising from formal neuropathological examination: [129]

“In summary, the brain showed swelling, bleeding on the surface of the brain and within the ventricles of the brain, a single contusion (bruise) to the brain, vascular congestion, and microscopic changes of raised intracranial pressure and/or hypoxic/ischaemic injury. Possible microscopic changes of traumatic brain injury were also noted. These findings support the external, and facial dissection findings that this man was subjected to repeated blunt impacts to the head and face, and the history of becoming unconscious prior to later dying.”
(Emphasis added.)
129. Post-mortem report, p. 3.

Dr Murray explained that the raised intracranial pressure is a secondary effect of swelling of the brain, and that there is a correlation between the degree of raised pressure in the brain and the degree of brain injury. [130] For this to occur, there also needed to be a period of survival (likely hours) meaning the deceased would not have died immediately from the injury. [131]
130. Tcpt, Wednesday 19 February 2025, p. 150.
131. Tcpt, Wednesday 19 February 2025, p. 150, Post-mortem report, p. 3.
Dr Murray also outlined the results from the post-mortem CT scan: [132]

“Post-mortem CT scan identified diffuse subarachnoid and subdural haemorrhage (bleeding on the external surface of the brain), intraventricular haemorrhage (bleeding in the ventricles within the brain), marked swelling and bleeding within the scalp tissues, fractures of the left sided facial bones with associated gas in soft tissues of the face and neck, multiple rib fractures, emphysematous changes in the lungs, evidence of previous right shoulder and leg fractures requiring surgery and changes of decomposition.”
132. Post-mortem report, pp. 2-3.

Dr Murray noted that there was “confluent contusion” on various parts of the face meaning “it was difficult to define individual impact points or individual blows because there was so many that the bruising into the tissue from the impact had merged altogether”. [133] Additionally, there was subcutaneous (under the skin) haemorrhage to both cheeks and the forehead region. [134] There were also “blowout fractures” to the left eye socket, [135] the bruising of which likely would have been pronounced quite early on after the incident. [136]
133. Tcpt, Wednesday 19 February 2025, p. 147, Exhibit K1, Post-mortem report p. 7.
134. Tcpt, Wednesday 19 February 2025, p. 148.
135. Tcpt, Wednesday 19 February 2025, pp. 151-152.
136. Tcpt, Wednesday 19 February 2025, p. 160.
Dr Murray described “blowout fractures” in the following way when giving evidence: [137]

“… blowout fractures are a radiological term where the specialists are looking at the medical imaging report and that is their terminology, but it just means that because that part of the bone is quite thin in the orbit, blowout means it is just kind of shattered. So that part of the eye socket has been subjected to significant force on the left side that has caused that pattern of fracturing.”
(Emphasis added.)
137. Tcpt, Wednesday 19 February 2025, p. 152.

During cross-examination, Dr Murray stated that the orbital floor is an area of bone that is likely more easily broken as compared to other facial bones. Additionally, there were no fractures of the skull, the only fractures being to the orbital wall and the maxilla. [138]
138. Tcpt, Wednesday 19 February 2025, p. 161.
Dr Murray listed the following visible injuries to the head and neck: [139]
139. Post-mortem report, p. 7.

“Head
1. Confluent contusion on the entire left side of the face with extension from the left to the right forehead, around the left eye, onto the left cheek down onto the left underside of the mandible.
2. An 11 mm laceration on the left lower cheek.
3. Contusion around the right eye measuring 50 x 60 mm.
4. Clustered contusion on the right mid to lower cheek measuring 120 x 80 mm with extension to below the angle of the mandible, with an associated adjacent distinctive patterned abrasion measuring 95 x 15 mm across the cheek.
5. A 60 x 40 mm area of contusion involving the right ear.
6. A 20 x 5 mm area of contusion on the left outer helix of the ear.
Neck
1. A vague area of contusion measuring 80 x 20 mm across the left lateral upper”

In cross-examination, counsel for the accused questioned Dr Murray in relation to the amount of blood loss the deceased would have suffered in relation to the facial lacerations and any abrasions. Dr Murray stated that the facial lacerations “would have definitely bled” but that “significant” is not the right term to use to describe the blood loss. [140] Dr Murray stated that there would have been external bleeding, but a large majority of the bleeding here would have been of the soft tissue meaning it was within the body. [141]
140. Tcpt, Wednesday 19 February 2025, pp. 159-160.
141. Tcpt, Wednesday 19 February 2025, p. 160.
Dr Murray also listed some “Additional Findings” in relation to the face and neck at page 9 of the post-mortem report:

“Layered soft tissue plane dissection of the face, neck, chest and left and right upper limbs showed areas of deep contusion as follows: [emphasis added]
Face
1. 70 x 100mm area of subcutaneous haemorrhage to the left cheek and forehead region.
2. 30 x 50 mm area of subcutaneous haemorrhage to the right upper cheek.
Neck
1. 80 x 30 mm area of subcutaneous haemorrhage across the left upper neck adjacent to the body of the mandible and extending down the neck along the sternomastoid muscle.”

Upon internal examination of the brain, Dr Murray noted the following at page 10 of the post-mortem report:

“The reflected scalp tissue showed significant acute contusion and oedema as follows:
1. A 100 x 80 mm large expanse of severe sub scalp haemorrhage and oedema overlying the left temporo- parietal region.
2. A 30 x 40 mm area of acute haemorrhage in the left frontal region.
3. A 100 x 60 mm area of scalp haemorrhage over the occipital region.”

Together, these findings indicated that the deceased was subjected to repeated blunt force impacts to the head and face. Dr Murray stated in the post-mortem report (at page 3), and it was repeated when she gave evidence orally that:

“This man suffered multiple repeated blunt force impacts to his head, face, body and limbs. He had extensive bruising and swelling to his scalp and face, fractured facial bones, and bleeding and swelling on his brain. This has likely resulted in profound unconsciousness and death.”

The cause of death was recorded as “Blunt Force Head Injuries”. [142]
142. Post-mortem report, p. 3.
In relation to the deceased’s consciousness, Dr Murray stated that as the pressure in the brain increases, the level of consciousness would have dropped. [143] With respect to the process of decline a person shows before entering profound unconsciousness, Dr Murray noted that a person will initially become more agitated, then become less coherent, then unconscious, and then deeply unconscious. [144] The final stage with no intervention is “coning” which implies advanced pathology. [145] The time it takes for someone to go through this process is dependent on several factors and so it is hard to say how long it would have taken for the deceased to progress through each stage. Dr Murray stated that it would have likely taken a couple of hours, not minutes, and certainly not 24 hours. [146]
143. Tcpt, Wednesday 19 February 2025, p. 151.
144. Tcpt, Wednesday 19 February 2025, p. 151.
145. Tcpt, Wednesday 19 February 2025, p. 162.
146. Tcpt, Wednesday 19 February 2025, p. 162.
Dr Murray also stated that during the profound unconsciousness and coning phases, there may be such long pauses between someone’s breaths that you might think they have already died. [147] She stated that ‘rasping’ “is probably not an uncommon description of one of the noises someone might make in the terminal phase of their coning”. [148]
147. Tcpt, Wednesday 19 February 2025, p. 163.
148. Tcpt, Wednesday 19 February 2025, pp. 162-163.
During cross-examination, Dr Murray stated that if after the assault the deceased had a small fall on to hard carpet, there is a possibility this may have caused some of the bruising, but certainly not the patterned injuries. [149] Similarly, if the deceased was observed to have had some kind of seizure, there is a possibility this may have caused some of the bruising, but again, certainly not the patterned abrasions. [150] It would be unlikely that dragging the deceased on a sheet from the bedroom to the laundry would have resulted in some of the marks and bruising suffered by the deceased, but it would depend on, for example, whether the deceased was bumped into something. [151] It is possible that lifting the deceased’s body on the sheet and into the bath could have caused some of the bruising and markings, but the deceased only weighed 63 kg and would not have been a big person to lift. [152]
149. Tcpt, Wednesday 19 February 2025, p. 163.
150. Tcpt, Wednesday 19 February 2025, p. 163.
151. Tcpt, Wednesday 19 February 2025, p. 163.
152. Tcpt, Wednesday 19 February 2025, p. 164.

“A. Indicating there was trauma to the area and it appears that - it was difficult to define individual impact points or individual blows because there was so many that the bruising into the tissue from the impact had merged altogether. So what I have described as ‘confluent area of contusion’ means there was a large area that was covered in bruising, basically, involving the left side of his face, and I think I refer to a few points of injury as confluent contusion because there were probably smaller ones but they kind of all morphed into one larger area of bleeding under the skin.
Q. To sum that up, there may have been more than one trauma in that area but you just treated it as one because it merged?
A. Yes, I’m describing what I can see on the external appearance of the face and there is just extensive bruising, yes.”

Dr Murray was cross-examined about this difference between the two groups of photographs [166] and she explained that as the bruises worsened in appearance over time, they ran into each other and could not be distinguished from each other. But this does not mean that the bruising was more severe in the later photographs; only that it was more obvious.
166. Tcpt, Wednesday 19 February 2025, p. 147.
I have considered the descriptions of the assault as against the expert evidence. The eyewitnesses were not challenged in any significant way as to their descriptions of the assault. Instead, the descriptions were relied upon as being consistent with an intention to inflict something less than grievous bodily harm on the deceased. But their descriptions do not fully align with the injuries received nor even with Mr Thornthwaite’s description of hearing “multiple bangs” over at least half an hour. I have had regard to these descriptions of the attack in considering whether I am satisfied beyond reasonable doubt that the accused assaulted Mr Froggatt with the intention of inflicting grievous bodily harm on him.

Significance of the use of chains during the fatal attack

The photographs show 16 injuries to Mr Froggatt caused by being whipped with the gold chain. These injuries broke the skin and would have bled. The whips caused a distinctive mark. They may have accounted for some of the blood spatters. It is not possible to say. Mr Watson also found chain marks on the back of the door in the second bedroom which is consistent with the accused bringing his arm back to whip the deceased with great force. This is also generally consistent with Ms Cullen’s description. Ms Cullen said that collectively the three of them were whipped with the chain about five to ten times all to their upper bodies. The photographs show a slight injury caused by the chain to her arm.
Both the Crown and the accused relied upon this evidence of whipping in support of their respective cases. On behalf of the accused, it was submitted that the injuries caused by the whipping with the chain could not amount to grievous bodily harm which points against that being his intention during the assault. Further, it was submitted that the accused could have retrieved a more serious weapon than a chain had he wanted to inflict grievous bodily harm, but he did not. The Crown, on the other hand, relied on the gratuitous cruelty of this aspect of the overall assault as being consistent with an intent to inflict grievous bodily harm on the deceased.
I have some difficulty with the accused’s argument on this issue. The whipping with the chain was not the only injury inflicted on the deceased. It has to be considered in the context of the prolonged assault as a whole which included different types of injuries being inflicted to different parts of the body cumulatively over a period of time, in particular to the face and head. I have had regard to the gratuitous cruelty of this violent whipping of the deceased in the context of the overall sustained assault when considering whether I am satisfied beyond reasonable doubt that the accused assaulted Mr Froggatt with the intention of inflicting grievous bodily harm on him.

When did the accused stop assaulting the deceased?

An important part of the defence case was that the accused stopped assaulting the deceased when the latter volunteered that “the Yugoslavs” had set him up. [167] Ms Taitoko described the assault ending when Mr Froggatt fell to the ground after saying this to the accused. Ms Cullen, on the other hand, did not recall this and denied that it was something that Mr Froggatt said which prompted the accused to stop assaulting him. Her evidence was that the assault came to an end because Mr Froggatt had stopped answering and became unresponsive. [168]
167. Tcpt, Monday 17 February 2025, p. 46.
168. Tcpt, Tuesday 18 February 2025, pp. 109, 111.
The accused submitted there were three reasons why I would not accept Ms Cullen’s evidence on this issue. Firstly, her reliability was affected by her being unwell, not taking her medication, using “ice” and cannabis, and not sleeping well. A still photograph from the time she was arrested when compared with how she appeared in the witness box shows her appearance was much changed which is consistent with her now being medicated and not taking illicit drugs.
The second reason why it was said that I would prefer Ms Taitoko’s version is that Ms Cullen exaggerated her evidence by saying that the accused was “psycho” over the whole period before Mr Froggatt arrived right through to the police coming. She described him as quite erratic, very violent, uncontrollable and irrational for the whole time which was inconsistent with Ms Taitoko’s account. It was submitted that this version was an exaggeration and unreliable.
The third reason was that Ms Cullen prevaricated in this evidence in any event. She described the deceased as unresponsive at a time when no‑one was speaking to him to attempt to get a response.
It was submitted that this was an important part of the defence case.
Ms Cullen may have had a poor recollection of some of the assault but much of her evidence was consistent with Ms Taitoko’s as well as being consistent with the physical evidence. I have not had regard to Ms Cullen’s evidence that the accused was “psycho” the whole time. Rather, I have focused on the evidence of his actions during the fatal assault. Overall, I accept Ms Taitoko’s evidence that the assault stopped when Mr Froggatt gave the accused an answer that he wanted. Despite this, for reasons I will shortly explain, I am not satisfied that fact assists the defence case to the extent that it was submitted it did.

The motive for the fatal attack

It was somewhat unclear what information the accused was looking for when he assaulted the deceased. I do not consider the precise reason to have any particular significance. Whether it was that the accused believed that some of his “ice” was missing, whether he wanted to know who had visited Unit 1 and/or whether men had attended as clients of Ms Cullen and Ms Taitoko does not really make any difference. The Agreed Facts reflect that the accused’s concern was about his missing property. Whatever be the particular motive, it was accepted that the accused was angry and trying to get answers from Mr Froggatt and that was the motive for the attack.
The accused relied on the fact that his motive included getting some psychological satisfaction from assaulting, torturing or interrogating the deceased in order to get information as supporting the defence case. It was submitted that this was not consistent with the accused intending to inflict grievous bodily harm on the deceased. Senior counsel for the accused pointed to the fact that the accused assaulted the two women in Unit 1 with the same motive shortly before the fatal assault on the deceased. This was relied upon in support of the defence case that the accused only wished to get information out of the deceased and from that it can be inferred that he did not intend grievous bodily harm.
The difficulty I have with this argument is that implicit in it is the assumption that the assault would not end until the relevant victim had provided the required information.
There was evidence that during the fatal assault the accused said, “you’re all gonna die if you don’t tell me who’s been in the apartment”. I accept the defence submission that I would not rely on this utterance by the accused to infer that he intended to kill the deceased. That is not the Crown case in any event. But it is consistent with the accused’s intention that he did not propose to stop until he got the answer or answers he wanted which, on the defence case, is what occurred.
It may well be that when the accused commenced his assault, he did not intend to inflict grievous bodily harm on the deceased. I do not need to determine that issue if I am satisfied beyond reasonable doubt that this became his intention as the assault progressed. What is clear is that the deceased was not giving the accused the answers that he wanted, and the assault, including blows to the head, continued for at least half an hour until he did. When the answers were not provided, the accused did not relent. He did not give up. He continued.
I accept that, depending on the force used, one or two “normal” punches to the head may not be inflicted with the intent to inflict grievous bodily harm but that is not what happened here. As the accused continued to assault Mr Froggatt, he knew that he had already been subjected to previous punches, kicks and whips with the chain because he had inflicted them. This means that the later punches and kicks would have a different quality to the earlier ones as they had a cumulative effect. I have had regard to the fact that the accused continued to assault Mr Froggatt until he obtained the answer(s) he wanted in considering whether I am satisfied beyond reasonable doubt that the accused assaulted Mr Froggatt with the intention of inflicting grievous bodily harm on him.

When did the deceased fall to the ground?

Ms Taitoko described Mr Froggatt falling down at the end. Ms Cullen described him being on the floor during the assault.
I am well satisfied that some of the assault occurred whilst Mr Froggatt was on the ground; so much was accepted on behalf of the accused during closing addresses. Mr Froggatt received injuries and bruising all over his body. I am satisfied that most of the injuries to his legs were caused when he was on the ground; there was no suggestion he was punched on his legs and that would be an unlikely scenario in any event. Ms Taitoko had to be reminded that she initially told police (in her BWV) that there were kicks as well as punches. Ms Cullen described kicks to Mr Froggatt’s upper body, chest and torso while he was on the ground about five times [169] and that he was on the ground trying to defend himself by raising his arms and covering his face. [170] He was crying at the time of the assault and asking the accused to stop. [171]
169. Tcpt, Tuesday 18 February 2025, p. 97.
170. Tcpt, Tuesday 18 February 2025, p. 97.
171. Tcpt, Monday 17 February 2025, p. 44.
I accept Ms Taitoko’s evidence that Mr Froggatt fell to the ground at the end; it was not challenged. But Mr Froggatt must have been on the ground prior to that as well to explain the numerous injuries to his lower body which were consistent with kicks and being assaulted when he was down. I am satisfied that Mr Froggatt was on the ground for some of the assault and then fell down again at the end of it. I have taken this into account in considering whether I am satisfied beyond reasonable doubt that the accused assaulted Mr Froggatt with the intention of inflicting grievous bodily harm on him.

The deceased’s appearance during the fatal attack

The accused relied upon the fact that there would not have been many visible injuries to Mr Froggatt during the assault as going to the central issue of intent. It was submitted that he would not have known how badly Mr Froggatt was being injured as a result of the assault and that degree of injury was not intended.
Dr Murray gave evidence that some of the bruising would have appeared quickly. That is consistent with Ms Cullen’s evidence who described “significant swelling” to Mr Froggatt’s face and stated that it was already quite inflamed and red during the assault. Ms Taitoko did not describe seeing any injuries to Mr Froggatt until he fell and after that she only heard him in the dark. But Ms Taitoko did not say there were no injuries. She was not directly asked about observing any injuries. She was asked whether Mr Froggatt had started to bleed much before the lights were turned off and she replied, “I don’t know, I couldn’t tell”.
Reliance was placed on the inconsistency between the observations of Ms Taitoko and Ms Cullen as to the rate of Mr Froggatt’s decline. In this regard, I note the evidence of Dr Murray that after suffering head injuries such as these, a person will initially become more agitated, then become less coherent, then unconscious, and then deeply unconscious. Ms Cullen described Mr Froggatt as becoming incoherent which is consistent with Dr Murray’s evidence.
Dr Murray’s evidence was that in order for the brain to swell in the skull there needs to be time, which she measured in “hours”. The accused accepted that there was a time when Mr Froggatt was unresponsive and not moving but there was some confusion in the evidence as to when that happened.
There are a number of possible explanations for the fact that the two eyewitnesses gave timing estimates which put the time between the assault and death as being less than an hour. They were under stress, they had consumed drugs, they were not medical experts and there were the other matters to which I have already referred. Although much of their evidence accords with the medical and expert evidence, I find it difficult to accept their evidence as to when Mr Froggatt died based on their estimates of time. The expert evidence was that it would have been more than an hour after the assault before he died but that is a slow process going through the various stages.
I have already accepted the evidence that the accused stopped the assault when Mr Froggatt told him that “the Yugoslavs” set him up, but I am satisfied that Mr Froggatt had already started the process of decline described by Dr Murray by that time. This is consistent with Ms Cullen’s evidence that he was speaking “gibberish” prior to the assault ceasing and later that his breath was “raspy” after he fell down.
I am satisfied that Mr Froggatt was evidently struggling towards the end of the assault. He already had significant swelling to the left side of his face and was having difficulty breathing. [172] His breathing was described as “heavy” or at a later time, as “gurgling”. [173] At least some of this would have been obvious to the accused. I am not satisfied that Mr Froggatt presented with no difficulties until the minute the accused left the room and only started to struggle then. As Ms Taitoko sat in the dark, she heard him struggling from the moment the accused left. Further, Ms Taitoko’s evidence was that it was five minutes after the accused stopped the assault that he and Ms Cullen left the room. This was after Mr Froggatt fell down.
172. Tcpt, Tuesday 18 February 2025, p. 108.
173. Tcpt, Tuesday 18 February 2025, pp. 111, 118.
The accused also relied on the absence of evidence of any significant amounts of blood apparent on Mr Froggatt and at the scene. Dr Murray’s evidence was that this was not a case where there would have been significant external bleeding or spurting. Although Ms Taitoko and Ms Cullen’s evidence was that they cleaned up the blood after the fatal assault, it is to be accepted that the head injuries would not have caused significant gushes of blood. Even after the cleaning efforts there was some blood splatter on the wall, the curtain and the bedside table and a small amount on Mr Froggatt’s clothes. Ms Cullen described a puddle on his face which is where the laceration was.
Having regard to the evidence of blood even after the clean-up, I am satisfied that some blood would have been apparent to the accused. I am not persuaded that the fact that there was no evidence of “flowing” blood supports the defence case that the accused did not know how seriously he was hurting Mr Froggatt.
In addition to what the accused would have observed of Mr Froggatt’s injuries, he was aware that Mr Froggatt was not fighting back. He was aware that he was a slighter person than him weighing only 63 kg. He was also aware that he had repeatedly assaulted Mr Froggatt for at least half an hour.
I have had regard to the fact that Mr Froggatt had some bruising, some blood and was starting to deteriorate during the prolonged assault in considering whether I am satisfied beyond reasonable doubt that the accused assaulted Mr Froggatt with the intention of inflicting grievous bodily harm on him.

The focus of the attack: The deceased’s head

There was no challenge to Dr Murray’s findings in the post-mortem report and in her evidence that the left eye socket had been subjected to significant force to cause shattered pattern of fracturing. [174] Nor to her evidence that there was, “significant blunt force trauma” to the scalp apparent from the haemorrhaging underneath the scalp. [175]
174. Tcpt, Wednesday 19 February 2025, p. 152.
175. Tcpt, Wednesday 19 February 2025, p. 153.
The assault resulted in a “blowout” fracture to the orbital wall and floor. Although Dr Murray accepted that that is an easier bone to break than, for example, the jawbone, the fact remains that the accused broke Mr Froggatt’s facial bone around the eye during the prolonged assault.
I have considered whether I could be satisfied that the accused kicked Mr Froggatt in the head when he was on the ground. In her BWV, Ms Taitoko described the accused delivering “big kicks to the head”, kicking him “from that end to this end of the wall”. [176] She had to be reminded of this, and Ms Cullen did not describe kicks to the head. Mr Froggatt’s blood was found on the accused’s shoes and socks. I am well satisfied that Mr Froggatt was kicked to his body whilst he lay on the ground but the question of whether he was kicked to the head is more difficult to determine.
176. Tcpt, Monday 17 February 2025, pp. 63-64.
It was submitted on behalf of the accused that there was something in the order of five to ten kicks to the upper body area, but that I would not find they were directly to the head. I am ultimately of the view that given the nature of the injuries and the trauma to the head, there may well have been some kicks to the head, but I could not be satisfied they delivered any more force than the punches did.
Significantly, I am satisfied based on the evidence of the eyewitnesses and Dr Murray that there were repeated blows to the head. Even accepting that the accused used predominantly his fists when assaulting Mr Froggatt to the head (as opposed to a weapon), a reasonable person would know that repeated blows to the head will cause grievous bodily harm.
I have had regard to the fact that the focus of the injury was to the head in considering whether I am satisfied beyond reasonable doubt that that the accused assaulted Mr Froggatt with the intention of inflicting grievous bodily harm on him.

The aftermath of the fatal attack

As for the post offence conduct, the Crown ultimately accepted this was neutral evidence. The accused relied on it in three respects. First, it was submitted that the fact that the accused wanted Ms Taitoko to revive Mr Froggatt was inconsistent with him intending to inflict grievous bodily harm. Although I am satisfied that it is inconsistent with him intending to kill Mr Froggatt, I am not satisfied that it is necessarily inconsistent with him intending to inflict grievous bodily harm on him.

The second aspect of the post offence conduct relied upon by the accused is that in moving the body the accused may have caused some of the bruising to the body. Given that Mr Froggatt was moved at one stage and dragged under his arms, I accept that some bruising may have been caused in this way but not such as to have made any significant difference. I am also satisfied that it is likely that the fractured ribs Mr Froggatt suffered more likely came from resuscitation attempts.
The third aspect of the events after the assault is that there was evidence that Mr Froggatt had a seizure (consistent with the expert evidence of what can occur after a head injury). The accused relied on the fact that Mr Froggatt hitting his body on the floor may have caused some bruising too. Again, I accept that too is possible.
I have considered these matters in determining whether I am satisfied beyond reasonable doubt that that the accused assaulted Mr Froggatt with the intention of inflicting grievous bodily harm on him.

Conclusion

I have considered all of the evidence in the context of these subject areas. I have had regard to the cumulative effect of the evidence as to how the fatal assault started, how long it went on for, the whipping of Mr Froggatt with a chain during the assault, the motive, how it stopped, Mr Froggatt’s appearance, that Mr Froggatt was assaulted on the ground, that the focus of the attack was Mr Froggatt’s head and Dr Murray’s description of the head injuries.
Having regard to all of this evidence, I am satisfied beyond reasonable doubt that when the accused, Daniel Hasapis, assaulted Mr Froggatt he did so with the intention to inflict grievous bodily harm.

VERDICT

Accordingly, my verdict is that the accused is guilty of the murder of Sean Froggatt.

Endnotes

Amendments

16 July 2025 - [85] "28 January" instead of "27 January"

Decision last updated: 16 July 2025

Medium Neutral Citation:	R v Hasapis [2025] NSWSC 121
Hearing dates:	17-21 February 2025
Date of orders:	27 February 2025
Decision date:	27 February 2025
Jurisdiction:	Common Law
Before:	N Adams J
Decision:	The accused is guilty of the murder of Sean Froggatt.
Catchwords:	CRIMINAL LAW – Murder – trial by judge alone – verdict – where deceased was assaulted by accused and died from head injuries – where accused denies that he intended to inflict grievous bodily harm on the deceased – where accused admits he is guilty of manslaughter but not murder – assault witnessed by two persons – crime scene evidence – delayed post-mortem examination – where deceased suffered 71 injuries to his body – where motive for assault was to elicit information – relevance of acts of gratuitous cruelty to ultimate issue – whether reasonable possibility that the accused did not intend to inflict grievous bodily harm – accused guilty of murder
Legislation Cited:	Crimes Act 1900 (NSW), s 18(1)(a) Criminal Procedure Act 1986 (NSW), ss 132, 132A, 133 Evidence Act 1995 (NSW), ss 38, 55, 135, 137
Cases Cited:	FDP v R (2008) NSWLR 645; [2008] NSWCCA 317 Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72 Harriman v R (1989) 167 CLR 590; [1989] HCA 50 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 O’Leary v R (1946) 73 CLR 566; [1946] HCA 44 Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 R v Adam [1999] NSWCCA 189 R v Davidson (No. 1) [2019] NSWSC 980 R v Droudis(No. 13) [2016] NSWSC 1350 R v Mostyn [2004] NSWCCA 97 R v Player [2000] NSWCCA 123 R v Qaumi & Qaumi [2016] NSWSC 1473 R v Qaumi & Qaumi(No 2) [2016] NSWSC 1487 R v Simmons; R v Moore (No. 4) [2015] NSWSC 259 R v Toki (No 3) [2000] NSWSC 999 Redman v R [2015] NSWCCA 110 Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50 The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40
Category:	Principal judgment
Parties:	Rex (Crown) Daniel Paul Hasapis (Accused)
Representation:	Counsel: Mr L Carr SC (Crown) Ms M Avenell SC (Accused) Solicitors: Office of the Director of Public Prosecutions (NSW) (Crown) Legal Aid Commission (NSW) (Accused)
File Number(s):	2023/29485
Publication restriction:	Nil.