R v Houda

[2022] NSWCCA 179

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

R v Houda [2022] NSWCCA 179

Hearing dates:

29 April 2022

Date of orders:

26 August 2022

Decision date:

26 August 2022

Before:

Ward P at [1]; Adamson J at [224]; Dhanji J at [260]

Decision:

1.   Extend time for the filing of the notices of appeal and grant the applicant leave to appeal.

2.   Dismiss the applicant’s appeal against conviction.

Catchwords:

CRIME – Appeals – Appeal against conviction – Unreasonable verdict – Whether verdict supported by evidence – Miscarriage of justice – Whether miscarriage of justice occasioned as a result of the appellant being tried jointly with the co-accused

Legislation Cited:

Criminal Procedure Act 1986 (NSW), s 29

Criminal Appeal Act 1912 (NSW), s 6

Crimes Act 1900 (NSW), ss 30, 47

Court Suppression and Non- Publication Orders Act 2010 (NSW), ss 7, 8(1)(a)

Cases Cited:

Allen v R [2020] NSWCCA 173

Barca v R (1975) 133 CLR 82 at 104; [1975] HCA 42

Black v R (1993) 179 CLR 44

Caleo v R (2021) 290 A Crim R 352; [2021] NSWCCA 179

Coughlan v R (2020) 267 CLR 654; [2020] HCA 15

Hillier v R (2007) 228 CLR 618; [2007] HCA 13

Knight v R (1992) 175 CLR 495; [1992] HCA 56

Libke v R (2007) 230 CLR 559; [2007] HCA 30

M v R (1994) 181 CLR 487; [1994] HCA 63

MFA v R (2002) 213 CLR 606; [2002] HCA 53

Pell v R (2020) 268 CLR 123; [2020] HCA 12

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

R v Birks (1990) 19 NSWLR 677

R v Middis (Supreme Court (NSW), Hunt J, 27 March 1991, unreported)

Seifeddine v R [2021] NSWCCA 214

SKA v R (2011) 243 CLR 400; [2011] HCA 13

Webb v R (1994) 181 CLR 41; [1994] HCA 30

Category:

Principal judgment

Parties:

Fady Houda (Applicant)
The Queen (Respondent)

Representation:

Counsel:
G Bashir SC with S Howell (Applicant)
E Balodis (Respondent)

Solicitors:
Mitchell & Co Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2015/00032678

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Date of Decision:

17 June 2020

Before:

Culver DCJ

File Number(s):

2015/00032678

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 5 July 2019, following a trial by jury in the District Court, the applicant, Mr Fady Houda, was found guilty and convicted on a charge of attempt to cause an explosion or fire, or both, with intent to murder Mr Dean Yarnton on or about 1 February 2015 at Picnic Point, contrary to s 30 of the Crimes Act 1900 (NSW). The applicant was tried jointly with three co-accused, Ms Yarnton (Mr Yarnton’s then wife), Ms Hayes (a friend of Ms Yarnton) and Mr Mouhtaris (Ms Hayes’ partner), each of whom was also found guilty on a charge of attempt to cause an explosion or fire, or both, with intent to murder Mr Yarnton.

The appeal raised two issues:

1. whether a miscarriage of justice was occasioned as a result of the appellant being tried jointly with the co-accused Ms Yarnton; and

2. whether the verdict of the jury was supported by the evidence and was unreasonable.

The Court (Ward P, Adamson and Dhanji JJ) held:

As to issue 1: (per Adamson J, Ward P and Dhanji J agreeing)

The applicant must establish some positive injustice which could not be, or was not, ameliorated by the directions given by the trial judge: [254].

The Crown case against the co-accused Ms Yarnton was significantly stronger than that against the applicant. Further, the recorded interviews of the co-accused, Ms Yarnton, were prejudicial to the applicant (because she sought to implicate him) and inadmissible against him: [252].

Nevertheless, the Crown case against the applicant was a relatively strong case, and the Crown case was that the co-accused Ms Yarnton was a liar and her version of events in her recorded interviews ought not to be accepted. In light of these circumstances, the prospect that the jury illegitimately relied on the co-accused Ms Yarnton’s version to convict the applicant was remote. Moreover, the trial judge’s directions were sufficient to remove any prejudice which might otherwise have arisen: [255]-[256].

Webb v R (1994) 181 CLR 41; [1994] HCA 30; Caleo v R (2021) 290 A Crim R 352; [2021] NSWCCA 179; R v Middis (Supreme Court (NSW), Hunt J, 27 March 1991, unreported); Allen v R [2020] NSWCCA 173 referred to.

As to issue 2: (per Ward P, Adamson and Dhanji JJ agreeing)

None of the matters referred to by the applicant gave rise to a rational inference or hypothesis consistent with innocence that was open on the evidence: [212].

The timing of the communications between all of the co-accused, in conjunction with the evidence of a vehicle appearing to belong to the applicant at the service station where the gas bottles to commit the offence were obtained, dispels any reasonable doubt that the applicant was part of a joint criminal enterprise to murder or cause grievous bodily harm to Mr Yarnton: [219].

There is no rational inference to suggest that the applicant was not the user of a telephone device that the evidence established was used to communicate with the co-accused Ms Hayes, and there is no rational inference to suggest that the applicant was not with the co-accused Mr Mouhtaris at the scene to commit the offence: [220]

In those circumstances, the verdict of guilty was not unreasonable: [222].

M v R (1994) 181 CLR 487; [1994] HCA 63; MFA v R (2002) 213 CLR 606; [2002] HCA 53; SKA v R (2011) 243 CLR 400; (2011) HCA 13; Libke v R (2007) 230 CLR 559; [2007] HCA 30; Pell v R (2020) 268 CLR 123; [2020] HCA 12; R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35; Knight v R (1992) 175 CLR 495; [1992] HCA 56; Barca v R (1975) 133 CLR 82; [1975] HCA 42; Hillier v R (2007) 228 CLR 618; [2007] HCA 13; Coughlan v R (2020) 267 CLR 654; [2020] HCA 15 referred to.

Judgment

1. WARD P: On 5 July 2019, the applicant, Fady Houda, was found guilty, following a trial in the District Court before Judge Culver DCJ and a jury, on a charge of attempt to cause an explosion or fire, or both, with intent to murder Dean Yarnton on or about 1 February 2015 at Picnic Point, contrary to s 30 of the Crimes Act 1900 (NSW) (Crimes Act) (count 1). There was an alternative count on the indictment (count 2) being a charge that on or about 1 February 2015 at Picnic Point the applicant put LPG gas and petrol in, upon and around a Nissan Navara then occupied by Mr Yarnton with intent to cause grievous bodily harm to Mr Yarnton, contrary to s 47 of the Crimes Act.

2. The applicant was tried jointly (in a trial commencing on 29 April 2019) with three co-accused: Sharon Yarnton (Mr Yarnton’s then wife), Monique Hayes (the applicant’s wife) and Anthony Mouhtaris (who lived with his grandfather, Anthony Mouhtaris Snr, in the same apartment complex as the applicant and Ms Hayes). Each of the co-accused had been indicted on the same counts as the applicant and each was also found guilty of count 1. The jury had deliberated for seven days; and there was a direction pursuant to the decision of Black v R (1993) 179 CLR 44 (Black) given on 5 July 2019 (see SU 160).

3. On 17 June 2020, the applicant was sentenced to a term of imprisonment for 11 years and 6 months, with a non-parole period of 7 years and 10 months. The sentence commenced on 24 December 2016; the non-parole period expires on 23 October 2024; and the sentence expires on 23 June 2028.

4. The Crown case at trial was that there was a joint criminal enterprise between all four co-accused to murder (or, in the alternative, cause grievous bodily harm to) Mr Yarnton; and that, during the evening of 31 January 2015 and the early morning hours of 1 February 2015, an attempt was made by the co-accused to carry out that agreement by using fire accelerants to set fire to Mr Yarnton’s Nissan Navara while he was asleep inside it on Henry Lawson Drive at Picnic Point. No fire was started and Mr Yarnton was not physically harmed.

5. The applicant and each of his co-accused denied any involvement in the alleged joint criminal enterprise and pleaded not guilty when arraigned.

6. There were three previous trials for the same offence which were aborted: two were before Judge Lakatos SC, the first starting on 15 May 2017 and the second starting on 22 May 2017; the third was before Judge Culver, starting on 12 March 2019. The applicant made two applications for separate trials, one before Judge Lakatos SC which was refused on 15 May 2017 and the second before Judge Culver which was refused on 15 March 2019. There was no challenge in respect of either of those decisions, although it is now asserted that a miscarriage of justice arose as a result of the applicant being tried with Ms Yarnton.

Grounds of Appeal

7. By notice of appeal filed on 23 September 2021, the applicant seeks leave to appeal his conviction upon the two grounds set out below. Leave is necessary only in relation to ground 2 (as it is not confined to a question of law). The applicant has expressly reserved his position in relation to any appeal against sentence. The two grounds of appeal are as follows:

Ground 1:    A miscarriage of justice was occasioned as a result of the appellant being tried jointly with the co-accused, Sharon Yarnton.

Ground 2:    The verdict of the jury was not supported by the evidence and is unreasonable.

8. In the event that the applicant’s appeal against conviction is allowed and an order made for his re-trial, the applicant seeks a non-publication order pursuant to ss 7 and 8(1)(a) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) in relation to the Court’s judgment in the proceedings, namely an order that publication of the Court’s judgment in these proceedings is prohibited until further order of the Court; and the applicant further requests that the Court’s judgment not be published on until any re-trial is completed.

9. For the reasons set out below by Adamson J, I agree that ground 1 is not made good. I turn then to the consideration of ground 2, which requires a comprehensive analysis of the evidence adduced at the trial. First, however, it is convenient to summarise the applicable principles (about which there was no dispute) where it is contended that a verdict is unreasonable.

Legal principles

10. There was no dispute as to the applicable legal principles where there is an appeal against conviction on the ground that the verdict was unreasonable. The question is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (see M v R (1994) 181 CLR 487; [1994] HCA 63 (M v R) at 492-493 per Mason CJ, Deane, Dawson and Toohey JJ; MFA v R (2002) 213 CLR 606; [2002] HCA 53 (MFA v R) at [60]-[61] per McHugh, Gummow and Kirby JJ; SKA v R (2011) 243 CLR 400; [2011] HCA 13 (SKA v R) at [13]-[14], [22] per French CJ, Gummow J and Kiefel J, as her Honour then was). In Libke v R (2007) 230 CLR 559; [2007] HCA 30 at [113], Hayne J (with whom Gleeson CJ and Heydon J agreed) expressed the test as being whether it was “open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the applicant’s guilt” (emphasis in original). More recently, in Pell v R (2020) 268 CLR 123; [2020] HCA 12 , the High Court said that these tests are essentially the same (see at [45] per Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

11. The appellate court must undertake its own independent assessment of the evidence (M v R; SKA v R), though having regard to “the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence” and that the jury had the benefit of seeing and hearing the witnesses give evidence (M v R at [7] per Mason CJ, Deane, Dawson and Toohey JJ; MFA v R at [49] per McHugh, Gummow and Kirby JJ). The High Court has emphasised the deference that must be accorded to the jury’s verdict, not only because the jury were in a better position than the appellate court to assess the credibility of witnesses, but also because of the constitutional authority of the jury (R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 (Baden-Clay) at [65] per French CJ , Kiefel J, as her Honour then was, Bell, Keane and Gordon JJ).

12. On a circumstantial case, the process of reasoning on appeal was described in Knight v R (1992) 175 CLR 495; [1992] HCA 56 per Mason CJ, Dawson and Toohey JJ at 503, their Honours noting that if a reasonable jury ought to have found that an inference or hypothesis consistent with innocence was open on the evidence, then it ought to have given the appellant the benefit of the doubt necessarily created by that circumstance; and framing the enquiry for the appellate court in that case as being whether, in the circumstances of that case, the jury acting reasonably could have rejected as a rational inference the possibility (consistent with the appellant’s innocence) that the appellant fired, without an intent to kill, the shot which hit the victim.

13. In Baden-Clay, the High Court (citing the joint judgment of Gibbs, Stephen and Mason JJ in Barca v R (1975) 133 CLR 82 at 104; [1975] HCA 42) said (at [46]):

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

14. Insofar as the Crown has criticised the approach of the applicant on this appeal on ground 2 as being piecemeal (citing Baden-Clay at [77]), reliance is placed by the applicant on Hillier v R (2007) 228 CLR 618; [2007] HCA 13 at [46]-[49] per Gummow, Hayne and Crennan JJ, where importance was placed by the Hight Court on the need to consider and weigh the evidence of all of the circumstances in order to decide whether there is an inference consistent with innocence reasonably open to the accused and to the approach taken by the High Court in Coughlan v R (2020) 267 CLR 654; [2020] HCA 15 at [55]. Thus the applicant maintains that this Court must look through the framework of the Crown case at trail and the circumstances there relied upon, to answer the ultimate question as to whether the verdict is unreasonable.

The co-accused

15. As noted above, there were four co-accused (Ms Sharon Yarnton, Ms Monique Hayes, Mr Anthony Mouhtaris and the applicant). Ms Yarnton and the victim (Mr Dean Yarnton) had been married for over 20 years; they had two teenage children; and they both were employed in senior roles with the Department of Corrective Services (30/04/19 T 59.29-42). The applicant and Ms Hayes were married and both were aged in their early twenties. Ms Hayes had previously been in a relationship with Ms Yarnton’s teenage son and had formed a friendship with Ms Yarnton. Ms Hayes and the applicant lived together in an apartment in Caringbah. Mr Mouhtaris lived with his grandfather (Anthony Mouhtaris Snr) in the same apartment complex as Ms Hayes and the applicant. None of the accused (as was their right) gave evidence at the trial (see 20/06/19 T 2311.23-42).

Chronology of events

16. At the outset, it should be noted that it is necessary in the chronology that follows to include evidence not admissible against the applicant as it is relevant to ground 1 of the appeal. So, for example, the electronically recorded interviews of a suspected person (ERISPs) of Ms Yarnton and Ms Hayes were not admitted in the case against the applicant. Only the evidence that was admissible in the case against the applicant has been taken into account for the purposes of determining ground 2 (the unreasonable verdict) ground of appeal.

Tension between Mr Yarnton and his wife

17. In September 2014, Ms Yarnton discovered that her husband had been having an extramarital affair with a work colleague. Ms Yarnton began frequently contacting the woman with whom Mr Yarnton was having the affair (16/05/19 T 1048.29-50; 1058.13-33); and there was significant tension in the Yarntons’ marriage. Mr and Ms Yarnton made plans to separate; and they sold their family home at Menai (the sale being due to complete on 23 February 2015).

18. There was evidence from a friend of Ms Yarnton (Ms Christine Osland) (which was only led in the Crown case against Ms Yarnton – see at 13/05/19 T 757.05) that Ms Yarnton had told Ms Osland about her husband’s affair; including (in a telephone conversation after the family home had been put up for sale but before it had sold) that Ms Yarnton and her husband were sleeping in separate bedrooms and that Mr Yarnton only planned to stay in the family home until it was sold (13/05/19 T 737.25). Ms Osland’s evidence was that, in another phone call, Ms Yarnton told Ms Osland that she had a “plan”; and that, when Ms Osland asked what she meant, Ms Yarnton said “You don’t need to know what plan, I have a plan” (13/05/19 T 740.19). Ms Osland said that she told Ms Yarnton not to “do anything stupid, because you don’t want to get yourself into trouble” (13/05/19 T 740.21). Ms Osland recalled reading Facebook posts by Ms Yarnton such as, “What goes around comes around” and “Karma will get you” (13/05/19 T 738.31).

19. Between October 2014 and January 2015, a number of emails were sent from two shared domestic email accounts to Ms Yarnton’s work email account. The Crown case was that these were sent by Ms Yarnton, posing as her husband. The emails referred to supposed gambling debts owed by Mr Yarnton to loan sharks; and threats made towards him by those to whom it was represented he owed money. Several of the emails related to “loans” obtained on Mr Yarnton’s behalf by his wife in order for him to repay his debts (see Exs H and P). Those emails were also led only in the Crown case against Ms Yarnton (30/04/19 T 124; 01/05/19 T 163.26).

20. So, for example, there was an email sent on 11 January 2015:

Shags,

The guys I owe the money too [sic] for all my debts, have told me I owe them another $20g please babe this is the last lot, it’s interest and that please babe, can you get it from Westpac, or NAB?

I can’t stop with this gambling, I know I have let you down big time, I am waiting for that private rehab place to lock me into a spot. Love Deano Soz x

and another, on 12 January 2015:

Shags,

Can you please see if that loan or credit card got approved for the NAB or Westpac, I really need to pay those loan shark guys 20g

Love Deano x

21. On 12 January 2015, Ms Yarnton applied for a loan of $60,000 through a Westpac Bank branch at Menai (17/05/19 T 1152.45).

22. On 15 January 2015, Ms Yarnton met with Ms Tracie Cotton, the Westpac branch manager at Menai. Ms Cotton’s evidence (led in the Crown case against Ms Yarnton only – see 17/05/19 T 1167) was that Ms Yarnton told her that “she was going through a divorce” and that her husband “had loan sharks after him”; and that Ms Yarnton said she wanted to pay out her husband’s debt, as threats had been made against her and her family (17/05/19 T 1154.03). On 16 January 2015, a loan of $25,000 was approved and Ms Yarnton attended the branch and withdrew $20,000 of that loan amount in cash.

23. On 27 January 2015, Mrs Yarnton returned to the bank and tried to borrow more money, but the bank declined (17/05/19 T 1156.25-48). The following day, Mrs Yarnton withdrew the remaining $4,850 available to her from the $25,000 loan (less a $150 application fee). Ms Cotton’s evidence was that Ms Yarnton had a further conversation with Ms Cotton at the bank in which she said she was counting down the days to “get the fucker out of her life and not have to deal with him again”; and that Ms Yarnton said that she wouldn’t care if he burnt to death (17/05/19 T 1157.28-33).

21. On 20 January 2015, Ms Yarnton sent two text messages to her friend Ms Kylie Fosse (Ex SSS at p16; Ex DDDD), evidence again led only in the Crown case against Ms Yarnton:

Karma for this prick and her

They can burn in hell the dogs

25. On 29 January 2015, another email was sent to Ms Yarnton’s work email address (again, the Crown case was that this was sent by Ms Yarnton posing as her husband) (see Ex P):

Shags,

Thanks for that 20, on Saturday night when we go out with the O’s, I will have to go and pay those guys I owe the money too, [sic]

I don’t want them seeing you, so when I find out where to meet them, if I am too pissed can you drop me around the corner, where I am to meet them, and I will walk up to where I am meeting them

And then pick me up at the same spot.

I am so sorry for this shit fight, ok, truly I am, I am hoping that they meet me at work on Friday night, then I can pay them then.

Just know I am sorry, and I promise you I will be a better person after my rehab, please prmise [sic] me you wont [sic] tell anyone from work, cause I know how this putrid job and the people talk.

… love Deano x

Arrangement for dinner at Merrylands Bowling Club on 31 January 2015

26. Meanwhile, on 27 January 2015, Ms Yarnton contacted Ms Osland’s husband, Craig Osland, and arranged for the two couples (the Yarntons and the Oslands), who had been close friends for some time, to have dinner at the Merrylands Bowling Club on Saturday, 31 January 2015. Ms Osland’s evidence (led in the Crown case against Mrs Yarnton only – see 13/05/19 T 757.05) was that Ms Yarnton suggested they have dinner together “the four of us for the last time” (T 739.04); and that Ms Yarnton said she had been discussing such a dinner with her husband for some time.

Communications 1 January – 2 February 2015 – Exhibit DDDD

27. Exhibit DDDD, admitted without objection against all four accused (see 20/06/19 T 2304.27) was a summary of telephone, text and Facebook communications between various telephone numbers associated with the accused between 1 January 2015 and 2 February 2015. The Crown relied on this as a central piece of evidence in its case.

28. The relevant telephone numbers set out in the summary and associated with the various accused were: (i) a number ending 414 ascribed to Ms Yarnton; (ii) a number ending 506 ascribed to Ms Hayes and referred to in the trial as “Monique Hayes (1)”; (iii) a number ending 178 ascribed to Ms Hayes and referred to in the trial as “Monique Hayes (2)”; (iv) a number ending 050 ascribed to Ms Hayes and referred to in the trial as “Monique Hayes (3)”; (v) a number ending 488 ascribed to Anthony Mouhtaris Snr and referred to in the trial as “Anthony Mouhtaris Snr (1)”; and (vi) a number ending 940 ascribed to Anthony Mouhtaris Snr and referred to in the trial as “Anthony Mouhtaris Snr (2)”. I will refer to the telephone numbers by those descriptors.

29. The Crown case was that the telephone numbers “Monique Hayes (1)” and “Monique Hayes (2)” were used exclusively by Ms Hayes. The Crown alleged that the number “Monique Hayes (3)” was used by the applicant (and, in particular, the Crown alleged that the Monique Hayes (3) number was used by the applicant on 31 January and 1 February 2015).

30. The telephone records (as to which there was evidence from an Optus representative – see below) showed that, from 24 January 2015, there was frequent contact between the Monique Hayes (1) telephone number and the Monique Hayes (3) telephone number; from which the Crown case at trial was that the user of the Monique Hayes (3) telephone was someone connected to Ms Hayes and someone close to her. It was an agreed fact that, during January 2015, the Monique Hayes (3) telephone number had been used on a number of occasions to contact the applicant’s sister and another of his relatives (see 20/06/19 T 2305.30-45; Ex EEEE). However, the agreed fact was not more specific as to the number of occasions that this contact was made; nor as to when that contact occurred during the month of January 2015.

31. The Crown case was that both the numbers “Anthony Mouhtaris Snr (1)” and “Anthony Mouhtaris Snr (2)” were used by Mr Mouhtaris.

32. In the period between 24 January and 30 January 2015, there were telephone and text communications between the following telephone numbers: (i) Monique Hayes (3) and Anthony Mouhtaris Snr (1) and both Anthony Mouhtaris Snr (2); (ii) Monique Hayes (3) and Monique Hayes (1); and (iii) between Ms Yarnton and Monique Hayes (1) (see Ex DDDD).

Telephone contact on 30 and 31 January 2015

33. Relevantly, on 30 January 2015 and 31 January 2015 there were the following exchanges of text messages and telephone calls.

• on 30 January 2015, at 10.17pm, Ms Yarnton sent a text message to the Monique Hayes (1) telephone number:

Fuck, I hope you find someone who has the right tools to fix our friend’s car xxx

• between 10.56pm and 11.03pm on 30 January 2015, five text messages were sent from the Monique Hayes (3) telephone number to the Anthony Mouhtaris Snr (2) telephone number;

• at 11.53pm on 30 January 2015 and 12.08am on 31 January 2015, a text message was sent from the Monique Hayes (3) telephone number to the Monique Hayes (1) telephone number;

• on 31 January 2015, at 4.44am, two text messages were sent from the Anthony Mouhtaris Snr (2) telephone number to the Monique Hayes (3) telephone number;

• between 10.41am and 10.45am on 31 January 2015, four text messages were sent from the Monique Hayes (3) telephone number to the Anthony Mouhtaris Snr (2) telephone number;

• between 11.34am and 11.54am on 31 January 2015, nine text messages were sent from the Anthony Mouhtaris Snr (2) telephone number to the Monique Hayes (3) telephone number and a further two text messages were sent from the Anthony Mouhtaris Snr (1) telephone number to the Monique Hayes (3) telephone number;

• at 2.33pm on 31 January 2015, a call (lasting 27 seconds) was placed from the Anthony Mouhtaris Snr (1) telephone number to the Monique Hayes (3) telephone number;

• at 2.54pm on 31 January 2015, there was a 44 second telephone call from Ms Yarnton’s number to the Monique Hayes (1) telephone number;

• between 4.28 and 4.31pm on 31 January 2015, the Monique Hayes (1) telephone number was used to contact two car rental companies;

• at 6.08pm on 31 January 2015, a text message was sent from the Monique Hayes (3) telephone number to the Anthony Mouhtaris Snr (1) telephone number;

• at 7.09pm on 31 January 2015, there was a 4 second call from the Anthony Mouhtaris Snr (1) telephone number to the Monique Hayes (3) telephone number;

• at 7.23pm that day, a text message was sent from the Monique Hayes (3) telephone number to the Anthony Mouhtaris Snr (1) telephone number;

• between 7.44 and 7.46pm on 31 January 2015, seven text messages were exchanged between the Monique Hayes (1) and Monique Hayes (3) telephone numbers;

• at 8.24pm on 31 January 2015, two text messages were sent from the Anthony Mouhtaris Snr (1) telephone number to the Monique Hayes (3) telephone number;

• between 8.34 and 8.49pm on 31 January 2015, 29 text messages were exchanged between the Monique Hayes (3) and Monique Hayes (1) telephone numbers; and between 9.22pm and 9.24pm, 3 further text messages were exchanged between the Monique Hayes (1) and Monique Hayes (3) telephone numbers;

• at 9.33pm on 31 January 2015, there was a 1 minute 7 second telephone call from the Anthony Mouhtaris Snr (2) telephone number to the Anthony Mouhtaris Snr (1) telephone number;

• between 9.35pm and 9.36pm on 31 January 2015, there were 5 text messages exchanged between the Monique Hayes (1) and Monique Hayes (3) telephone numbers;

• at 9.36pm on 31 January 2015, three text messages were sent from the Monique Hayes (1) telephone number to an unknown number;

• at 9.38pm on 31 January 2015, there was an exchange of 3 text messages between the Monique Hayes (1) and Monique Hayes (3) telephone numbers;

• at 9.39pm on 31 January 2015, a further 3 text messages were sent from the Monique Hayes (1) telephone number to an unknown number, and at 9.45pm a further text message was sent from the Monique Hayes (1) telephone number to the Monique Hayes (3) telephone number;

• at 9.47pm on 31 January 2015, there was a 1 minute 33 second telephone call from the Monique Hayes (3) telephone number to the Monique Hayes (1) telephone number;

• between 9.54pm and 10:22pm on 31 January 2015, there were 13 text messages exchanged between the Monique Hayes (1) and Monique Hayes (3) telephone numbers;

• at 10.28pm on 31 January 2015, there was a 50 second telephone call from the Monique Hayes (1) telephone number to the Monique Hayes (3) telephone number;

• between 10.33pm and 10.37pm on 31 January 2015, there were three telephone calls from the Monique Hayes (1) telephone number to the Monique Hayes (3) telephone number, lasting 33 seconds, 4 seconds and 32 seconds, respectively.

Dinner at Merrylands Bowling Club on 31 January 2015

34. On 31 January 2015, the Yarntons drove in their Nissan Navara vehicle (Ex D) from their home in Menai to the Oslands’ home in Merrylands and the two couples then drove together to the Merrylands Bowling Club where they had dinner. Mr Yarnton and Mr Osland drank several beers.

35. At about 10.45pm, Ms Yarnton offered to buy Mr Yarnton and Mr Osland a last beer and went to the bar area alone. Mr Yarnton’s evidence was that his wife insisted that she buy the last beer of the night (30/04/19 T 76.19). CCTV footage showed Mrs Yarnton buying two schooners of beer, carrying the glasses into a coffee shop area, then returning to where her husband and the Oslands were sitting. Mr Yarnton took a sip of his beer and noticed that it tasted “very funny” and was granular (30/04/19 T 76.45-48). Mr Yarnton said something like “this beer tastes like shit” (30/04/19 T 76.48-77.02). Ms Yarnton took the beer back to the bar area (30/04/19 T 77.02). CCTV footage showed Ms Yarnton at the bar area retrieving another glass from behind the bar, pouring the contents of her husband’s beer into that glass, then carrying it back to where he was sitting with the Oslands. Mr Yarnton took another sip and said, “it still tastes like shit” (30/04/19 T 77.04). Mr Yarnton only took a few sips of the beer. The Crown case was that Ms Yarnton had put a sedative into her husband’s beer.

CCTV footage from Coles Express service station at Bass Hill

36. CCTV footage from a Coles Express service station on the Hume Highway at Bass Hill (time stamped between 10.42pm and 10:48pm – that being at about the same time as Ms Yarnton was buying Mr Yarnton and Mr Osland their last beers inside the Merrylands Bowling Club and more than two hours before the alleged commission of the offence at Picnic Point), shows what the Crown alleged to be a silver-coloured car (similar in appearance to a silver Subaru Impreza registered to the applicant) turning left into Strickland Street, a street adjacent to the service station.

37. The CCTV footage shows Mr Mouhtaris enter the service station moments later and purchase a new 8.5-kilogram gas bottle (Ex SS). The service station operator noticed that, as Mr Mouhtaris walked away from the service station, Mr Mouhtaris was carrying two gas bottles (not just the one for which he had just paid). The service station operator lost sight of Mr Mouhtaris as he walked towards Strickland Street (21/05/19 T 1185.30). A subsequent audit of the service station’s gas bottles revealed that there was one unaccounted for gas bottle (15/05/19 T 948.20).

38. The CCTV footage showed a vehicle (again alleged by the Crown to be a vehicle similar in appearance to the applicant’s vehicle) drive out of Strickland Street and turn left onto the Hume Highway.

39. The Court viewed the CCTV footage on the present appeal.

Further telephone contact during the late evening of 31 January and the early hours of 1 February 2015

40. The communications summary (Ex DDDD) shows that there were the following communications in the period from when Ms Yarnton bought the last round of beers at the Merrylands Bowling Club and Mr Mouhtaris was shown on the CCTV footage at the Bass Hill Coles Express.

• between 10.45pm and 11.25pm on 31 January 2015, there were four telephone calls between the Monique Hayes (1) and Monique Hayes (3) telephone numbers; the calls lasting, respectively, 2 minutes; 43 seconds; 2 minutes and 18 seconds; and 2 minutes and 16 seconds;

• At 11.28pm on 31 January 2015, there was an attempted Facebook call from Monique Hayes to Ms Yarnton, then three Facebook messages sent from Ms Hayes to Ms Yarnton, being:

Can you talk

…

When you get home i need to meet you outside can’t come in … My anxiety has got me rattled…

So please out front.not inside

• at 11.36pm on 31 January 2015, Ms Yarnton replied to the Facebook messages from Ms Hayes:

Is there a problem

• at 11.38pm on 31 January 2015, there was a further telephone call between the Monique Hayes (1) and Monique Hayes (3) telephone numbers, lasting 1 minute and 17 seconds;

• at 11.40pm on 31 January 2015, a further Facebook message was sent from Ms Yarnton to Ms Hayes:

U worry me when ur like that

Drive home from Merrylands Bowling Club

41. At about 11:45pm on 31 January 2015, the Yarntons left the Oslands and began driving home to Menai in their Nissan Navara utility. Ms Yarnton was the driver (30/04/19 T 78.12), and Mr Yarnton quickly fell asleep in the front passenger seat (30/04/19 T 79.17). Mr Yarnton had been drinking beer for several hours and was intoxicated (09/05/19 T 545.27-546.36; T 553-555.25).

Further communications

42. There were then the further communications from around the time that the couple left the Merrylands Bowling Club.

• at 11.49pm on 31 January 2015, Ms Yarnton sent Ms Hayes a Facebook message which was a “thumbs up emoji”. There was a reply from Ms Hayes one minute later with:

I’ll be ok had medication

• at 11.59pm on 31 January 2015, Ms Yarnton sent Ms Hayes a Facebook message:

Now he is abusing me he is in the front

• at 12.15am on 1 February 2015, Ms Yarnton called the Monique Hayes (2) telephone number, the call lasting 14 seconds. (The Crown notes that this was the first time that this alternate number (also ascribed to Ms Hayes) appeared in Ex DDDD.)

• at 12.16am on 1 February 2015, Ms Yarnton sent a Facebook message to the applicant’s Facebook account:

Hey

• at 12.17am and 12.21am, there were two attempted calls from Ms Yarnton’s telephone number to the Monique Hayes (2) telephone number (lasting 6 and 7 seconds, respectively); and between 12.25am and 12.35am on 1 February 2015, there were a further five calls from Ms Yarnton’s telephone number to the Monique Hayes (2) telephone number (lasting 9, 6, 20, 5 and 5 seconds, respectively);

• at 12.36am on 1 February 2015, there was a Facebook message from Ms Yarnton to Ms Hayes:

Hey let me know if ur calling in

• at 12.43am on 1 February 2015, there was a text message from the Anthony Mouhtaris Snr (1) telephone number to the Monique Hayes (1) telephone number;

• at 12.48am on 1 February 2015, there was a Facebook message from Ms Hayes to Ms Yarnton:

Hey my internet went off I had a nanna nap and my cat sat on my face…. Lol I’ll see you tomorrow if his [sic] being aggressive

• between 12.49am and 12.50am on 1 February 2015, there were three attempts from Ms Yarnton’s telephone number to call the Monique Hayes (2) telephone number;

• at 12.51am and 12.54am on 1 February 2015, there was an exchange of Facebook messages between Ms Yarnton and Ms Hayes:

Yarnton:   Hey where r they

Yarnton:   ????

Hayes:   Uhm work I’m sure why is everything ok

Yarnton:   No noone is here

Hayes:     I’ve ran out of credit one minute

• at 12.55am on 1 February 2015, there was a call lasting 2 seconds from the Monique Hayes (1) telephone number to the Monique Hayes (3) telephone number;

• at 12.59am on 1 February 2015, Ms Yarnton called the Monique Hayes (2) telephone number twice, for 9 seconds and 5 seconds. Ms Hayes sent Ms Yarnton a Facebook message which read:

My Internet is being a poo has he stop being aggressive

• at 1.01am on 1 February 2015, Ms Yarnton called the Monique Hayes (2) number again, the call lasting 27 seconds;

• at 1.03am on 1 February 2015, there was a call from the Monique Hayes (1) telephone number to the Anthony Mouhtaris Snr (1) telephone number lasting 41 seconds;

• at 1.03am on 1 February 2015, Ms Yarnton sent Ms Hayes a Facebook message which read:

Tell. Him now

• Ms Hayes replied immediately to the above message:

Ok

• at 1.09am on 1 February 2015, the Monique Hayes (1) telephone number accessed the Internet and social network;

• at 1.10am on 1 February 2015, there was a 5 second call from the Anthony Mouhtaris (1) telephone number to the Monique Hayes (1) telephone number; immediately following which Ms Hayes sent Ms Yarnton a Facebook message:

Goo [sic] now

• There was then an 8 second call from the Anthony Mouhtaris (1) telephone number to the Monique Hayes (1) telephone number. Following this call, Ms Hayes sent Ms Yarnton the following series of Facebook messages:

Open all windows and tank

Delete

Everything

• Ms Hayes then tried to call Ms Yarnton over Facebook. At 1.15am on 1 February 2015, Ms Yarnton replied “done” and sent an “emoji” image of an excited dog. Ms Yarnton called Ms Hayes back over Facebook.

• at 1.16am on 1 February 2015, Ms Hayes sent Ms Yarnton a Facebook message:

I love you I’ll see you in the morning mwa my meds affect me

Mr Yarnton’s evidence

43. Mr Yarnton’s evidence was that at around 1.16am (i.e., around the time the last of the above Facebook messages was sent) he woke up in the front passenger seat inside the couple’s Nissan Navara; that he was in a dark location and that he did not know where he was. His evidence was that a gas bottle that had not been there when he fell sleep was in the back seat of the car and was hissing gas; and that the gas bottle was positioned in the middle of the back seat of the vehicle, about 50-60 centimetres from where his head had been while he was sleeping (30/04/19 T 80.05). Mr Yarnton said that he leant over and turned off the gas bottle; and that he noticed that all of the vehicle’s windows were down (30/04/19 T 81.11); that he jumped out of the car through the passenger side door, and his socks became “very wet”; and that he could smell fuel. Mr Yarnton said he looked down and saw another gas bottle on the ground facing the vehicle’s petrol tank (30/04/19 T 80.35-39); that he noticed the petrol tank lid was open (saying that it required the car key to open) (30/04/19 T 81.25-38). Mr Yarnton saw liquid around the car and in the tray of the car (30/04/19 T 84.11).

44. Mr Yarnton said that he looked up and saw a vehicle driving down the road; that when he first saw the car, it was parked on the same side of the road as his vehicle and was facing away from him; and that he could see the rear lights and they were on (30/04/19 T 82.01; 17-19). Mr Yarnton said that he saw two rear lights one on either side of the vehicle; he did not see a third rear light in the middle (09/05/19 T 583.30-584.14). Mr Yarnton estimated that the vehicle was approximately 30 metres away (30/04/19 T 82.07). Mr Yarnton could not see whether the vehicle’s headlights were on and could not tell what colour the vehicle was. Mr Yarnton said that there were no lights in the area, and it was “very dark” (30/04/19 T 82.30). Mr Yarnton could not identify the make of the vehicle but said he thought that it was “an old Ford Laser” because “the lights were sort of … long rather than high”. Mr Yarnton said that he was “no real car buff” and had not previously owned or driven a Ford Laser (30/04/19 T 83.03-09). Mr Yarnton only observed the vehicle for “seconds” before it drove away (30/04/19 T 83.39-50).

45. Mr Yarnton said that Ms Yarnton was nowhere to be seen. Mr Yarnton telephoned his wife using his mobile phone. Mr Yarnton said he asked his wife where she was and said she told him that “she’d shit herself and she was in the bush cleaning herself up” (30/04/19 T 84.45-46). (Subsequent police investigation discovered no evidence of human defecation in the area that Ms Yarnton had indicated she was at the time.) Mr Yarnton said that he told Ms Yarnton she needed to come back to the car and explain to him what was going on; and said that his wife told him that she would be out shortly then hung up the phone. Mr Yarnton said that a minute or so later, he called his wife back and asked her where she was; and that Ms Yarnton said she was still in the bush cleaning herself up and would be out in a minute, then hung up again (30/04/19 T 85.49).

Further communications

46. Exhibit DDDD set out a number of further telephone contacts from around this time:

• at 1.17am on 1 February 2015, there is Mr Yarnton’s first call to Ms Yarnton’s telephone number, followed by a call lasting 22 seconds at 1.19am from Ms Yarnton to Mr Yarnton;

• following the above call, Ms Yarnton contacted the Monique Hayes (2) telephone number;

• Mr Yarnton then called Ms Yarnton again, the call lasting for 1 minute and 40 seconds;

• at 1.21am on 1 February 2015, there was a further 3 second call between Ms Yarnton and the Monique Hayes (2) telephone number;

• at 1.22am on 1 February 2015, Mr Yarnton and Ms Yarnton spoke again for 1 minute and 14 seconds;

• at 1.24am, Ms Yarnton sent Ms Hayes a Facebook message which read:

Yet

• at 1.25am, Mr Yarnton and Ms Yarnton spoke again for 2 minutes and 9 seconds;

• at 1.25am, the Anthony Mouhtaris Snr (1) telephone number sent two text messages to the Monique Hayes (1) telephone number;

• at 1.27am, Ms Hayes attempted to call Ms Yarnton over Facebook;

• at 1.28am, Mr Yarnton and Ms Yarnton spoke again for 1 minute and 32 seconds;

• at 1.30am, Ms Yarnton and Ms Hayes spoke over Facebook;

• at 1.31am, Mr Yarnton and Ms Yarnton spoke again for 26 seconds;

• between 1.31am and 1.34am, Monique Hayes (1) telephoned Anthony Mouhtaris Snr (1) and Monique Hayes (3). There were four calls to Anthony Mouhtaris Snr (1) lasting 2, 1, 3 and 1 seconds. There were two calls to Monique Hayes (3) lasting 3 and 2 seconds;

• at 1.34am, Ms Hayes telephoned Ms Yarnton on Facebook;

• within that same minute, Mr Yarnton telephoned Ms Yarnton. The call lasted for 1 minute and 13 seconds;

• at 1.36am, Ms Hayes again telephoned Ms Yarnton on Facebook;

• at 1.42am, the Anthony Mouhtaris Snr (1) telephone number sent two text messages to the Monique Hayes (1) telephone number.

Call to “000”

47. At 1.42am, Mr Yarnton called 000 (Ex C; 30/04/19 T 93.34). Mr Yarnton’s evidence was that, while he was on the telephone to the police, he saw Ms Yarnton “100 odd metres down the road” walking towards the vehicle. Mr Yarnton said he hung up and asked his wife what was going on. Mr Yarnton said that his wife told him “I have no idea, I shit myself, I was in the bush cleaning myself up”. Mr Yarnton says that he replied “that’s bullshit” (30/04/19 T 95.42-50). Mr Yarnton said that Ms Yarnton began to rummage through “a little pocket” inside the front driver’s door (30/04/19 T 96.13) and told him that she was looking for her phone charger. Mr Yarnton said that Ms Yarnton opened one of the rear doors, took hold of the gas bottle and threw it across the road (30/04/19 T 98.21-23). Mr Yarnton’s evidence was that he slammed the car door shut, pushed his wife up against the car and asked her what was going on; that Ms Yarnton told him she was going to ring the police; and that he replied “well you go your hardest”. Mr Yarnton said that he picked up the gas bottle from the roadway and put it in the back tray of the vehicle (30/04/19 T 98.24) then walked up the road about 20 metres to smoke a cigarette and wait for the police to arrive (30/04/19 T 96.01-06; 99.19). Mr Yarnton called and spoke to police a second time (Ex C).

48. At 1.43am, there were two telephone calls from the Monique Hayes (1) telephone number, lasting 3 and 2 seconds respectively – one to the Monique Hayes (3) telephone number and on to the Anthony Mouhtaris Snr (1) telephone number.

Danny Nguyen and Martin Hoang

49. Before the police arrived at the scene, two men (Mr Danny Nguyen and his friend Mr Martin Hoang), who were driving home to Cabramatta along Henry Lawson Drive, after a day’s fishing at Woronora, saw the Nissan Navara on the opposite side of the road (15/05/19 T 928.12). They performed a U-turn and Mr Hoang approached the vehicle and spoke to the Yarntons. Mr Nguyen waited in the car and smoked a cigarette, but he smelt something. Mr Nguyen got out of the car and observed the roadway around the Nisan Navara to be “damp”. Mr Nguyen thought he could smell petrol (15/05/19 T 930.12). Their evidence was that Mr and Ms Yarnton were arguing. Mr Hoang suggested that he and Mr Nguyen stay until the police arrived.

Police

50. Sergeant Steven Anderson was the first police officer to arrive at the scene. When he arrived, he had a conversation with Ms Yarnton. Sergeant Anderson’s evidence was that he could smell diesel fuel (15/05/19 T 988.46) and there appeared to be a liquid around the vehicle and over the vehicle’s roofline and in its tray (15/05/19 T 989.12-21). Sergeant Anderson said that Ms Yarnton told him that she had been out to the Merrylands Bowling Club with her husband, she was driving home and got lost; that she was feeling sick, so she stopped the car; that she needed to go to the toilet and was away for about 15 minutes; and that her husband rang her and asked where she was, and she told him she was going to the toilet because she felt sick. Sergeant Anderson said that Ms Yarnton said her husband started screaming at her telling her to come back or he would “flog” her; and that she started to walk back to the car but did not want to go near her husband and rang 000 (15/05/19 T 989.48-990.09). Sergeant Anderson said that Ms Yarnton suggested her husband was intoxicated and aggressive (15/05/19 T 990.13).

51. Sergeant Anderson also spoke with Mr Yarnton, who he said was standing away from his wife towards the front of the vehicle. As Sergeant Anderson approached the car he noticed that all of the windows of the vehicle were down (15/05/19 T 991.34). Sergeant Anderson described Mr Yarnton as anxious, confused and indifferent. Sergeant Anderson thought that Mr Yarnton was moderately affected by alcohol (15/05/19 T 992.19). His evidence was that Mr Yarnton said “I’ve woken up. I found myself here. I don’t know what’s going on” (15/05/19 T 992.33).

52. Sergeant Anderson saw a cream-coloured gas bottle in bushland adjacent to the vehicle; and, later, he saw a second cream-coloured gas bottle in an embankment (16/05/19 T 1016-1017; Exh MM photographs 37 and 38). Sergeant Anderson and another officer began a search of bushland on either side of the roadway west of the vehicle and downhill in an effort to locate any evidence that Ms Yarnton had defecated in the bushland as she had said. As noted above, they found no evidence she had done so.

53. When Sergeant Anderson returned to the passenger side of his police car, he observed a pink cigarette lighter and single black glove on the ground (Ex MM, photographs 21, 22 and 25; 10/05/19 T 659.42; 16/05/19 T 1021.36). The cigarette lighter and glove were a short distance from the rear of the vehicle (27/05/19 T 1380.36). Sergeant Anderson used the police radio to request the attendance of Bankstown detectives (16/05/19 T 1023.17).

54. Ms Yarnton also spoke with a second police officer at the scene, Senior Constable Catherine McGuinn. Senior Constable McGuinn’s evidence was that Ms Yarnton gave a similar account of having taken a wrong turn and needing to defecate and going into the bushes to do so (21/05/19 T 1229.16); and Ms Yarnton said that when she came out of the bushes, her husband was yelling at her about something to do with his feet being soaked in petrol and Ms Yarnton had no idea what he was talking about. (Pausing here, on this account, presumably the diesel or petrol would have had to have been spread around the car in the 15 or so minutes that Ms Yarnton said she was in the bushes.)

55. Senior Constable McGuinn said that Ms Yarnton told her that the couple had argued; that Mr Yarnton said her husband pulled her hair, grabbed her throat and threatened to kill her; that Ms Yarnton said her husband was a heavy drinker and was frequently violent towards her and she wanted to get away from him. Ms Yarnton told Senior Constable McGuinn that Mr Yarnton threw a gas cylinder at her and that she had no idea where the gas cylinder came from (21/05/19 T 1229.36). Senior Constable McGuinn said that Ms Yarnton said that her husband picked up a big stick and attacked her with it.

56. Detective Rachael Lawson gave evidence of a similar conversation with Ms Yarnton later at the scene (27/05/19 T 1381.27-1384.32).

The applicant’s vehicle is observed on fire in Miranda

57. At about 1.50am on 1 February 2015, a vehicle was observed on fire on Karimbla Road, Miranda by a witness (Ms Tamara Rojas) (22/05/19 T 1270-1274). The vehicle was subsequently identified as the applicant’s silver-coloured Subaru Impreza sedan registration BP 71 LZ (22/05/19 T 1313.35; Ex YY). Ms Rojas gave evidence that there was a walking track which led from Karimbla Road back towards Caringbah along a train line. The location where the applicant’s vehicle was on fire was within a kilometre of the street at Caringbah where Ms Hayes lived with the applicant and where Mr Mouhtaris lived.

Further telephone communications

58. There were a number of further telephone communications from the relevant telephone numbers in the early hours of 1 February 2015 (after the police had arrived at the scene):

• between 2.10 and 2.18am, three text messages were sent and two telephone calls (each lasting 2 seconds) were made from the Monique Hayes (3) telephone number to the Anthony Mouhtaris Snr (1) telephone number;

• at 2:29am, there were telephone calls, each lasting 3 seconds, from the Monique Hayes (1) telephone number to the Anthony Mouhtaris Snr (1) and Anthony Mouhtaris Snr (2) telephone numbers; and a 2 second telephone call from the Monique Hayes (3) telephone number to the Anthony Mouhtaris Snr (2) telephone number;

• between 2:40 and 2:53am, there were five calls from the Monique Hayes (3) telephone number to the Anthony Mouhtaris Snr (2) and Anthony Mouhtaris Snr (1) telephone numbers (lasting 6, 1, 4, 2 and 2 seconds);

• at 2:54am, a text message was sent from the Monique Hayes (3) telephone number to the Anthony Mouhtaris Snr (2) telephone number; and

• at 3:33 and 3:34am, there were telephone calls, each lasting 2 seconds, from the Monique Hayes (3) telephone number to the Anthony Mouhtaris Snr (2) and Anthony Mouhtaris Snr (1) telephone numbers.

Ms Yarnton’s first interview with police

59. On 1 February 2015, at about 7.00am, Ms Yarnton participated in the first of two records of interview with police at Bankstown Police Station (neither being admissible in the case against the applicant).

60. In her first interview, Ms Yarnton said that she knew nothing about what had happened and was in the bushes going to the toilet (see MFI 42 at Q 166). Ms Yarnton said that she had stopped the car on the side of the road for that purpose, taken a serviette with her, left the windows of the car open (“I think for fresh air for him”) and the hazard lights on, and walked away from the car to find a “stable area” to go to the toilet.

61. Ms Yarnton said that while she was in the bushes she heard “yahooing” and thought “fuck, we’ve got hoodlums up here, this is all I need” (see MFI 42 at Q 359). Ms Yarnton said that her husband called and abused her and threatened to kill her (see MFI 42 at Q 328-329); that when she returned to the car after about 20 minutes her husband asked her why there was a petrol smell and where the two gas bottles had come from; and that she said she had no idea where the gas bottles came from (see MFI 42 at Q 352).

62. Ms Yarnton said that her husband assaulted her; that her husband had gambling debts and that she had borrowed money for his debts. Ms Yarnton referred to emails, saying “And he sent me emails to confirm his debts … I didn’t trust him to do the right thing by me … I didn’t want to lose what I was gunna get considering he had a gambling problem” (see MFI 42 at Q 200).

63. Towards the end of the interview, Ms Yarnton said that when she first stopped the car on the side of the road “there was a silver car ahead” (see MFI 42 at Q 1003).

64. Some time during that same day (after her first interview), Ms Yarnton had a further conversation with Detective Lawson. Detective Lawson’s evidence was that she had conducted checks on the COPS System in relation to mobile telephone numbers on Ms Yarnton’s phone; and that she had noticed two calls received by Ms Yarnton within half an hour of 000 being contacted earlier that morning were from Ms Hayes. Detective Lawson also became aware that the applicant’s vehicle had been found burnt out in Miranda earlier that morning.

65. Detective Lawson had a conversation with Ms Yarnton to the following effect (27/05/19 T 1386.25):

Lawson:   Sharon, how do you know Monique?

Ms Yarnton:   She’s a friend of my sons. She used to be his girlfriend.

Lawson:   What do you know about Monique?

Ms Yarnton:   Not much. She’s a bit troubled so I’ve been trying to help her.

Lawson:   What do you mean?

Ms Yarnton:   Well, she has a five-year-old. I’m just trying to help her. That’s why she was coming over when she called.

…

Lawson:   Her boyfriend’s vehicle was found burnt out this morning, but anyway, you will be charged with attempt murder tonight. The custody manager will discuss bail with you when the paperwork is done.

Ms Yarnton:   Please, no, I need bail, my children.

…

Please, charge me with something so I get bail. Not attempt murder. Why? Please, I need bail. I can’t go into custody.

66. Following this conversation, Ms Yarnton told Detective Lawson she wanted to provide more information about what had occurred earlier that morning and agreed to participate in a second record of interview.

Ms Yarnton’s second interview with police

67. In her second interview, which commenced at about 4.40pm that day, Ms Yarnton said that on 29 January 2015 at about 5.00pm, she had met Ms Hayes outside a McDonald’s restaurant in Caringbah. Ms Yarnton said she had contacted Ms Hayes to ask her to return her son’s mobile phone charger. Ms Yarnton said the applicant dropped Ms Hayes at McDonald’s but did not stay (see MFI 43 at Q 41- 46).

68. Ms Yarnton said that Ms Hayes did not have the mobile phone charger with her and that she had invited Ms Yarnton to accompany her back to the apartment she shared with the applicant in Caringbah. When Ms Yarnton and Ms Hayes arrived at the apartment, she said the applicant and another male “of Middle Eastern appearance” she only knew as “Cuz” were there (see MFI 43 at Q 49-50). Ms Yarnton said she had a conversation with Ms Hayes and the applicant about her relationship with Mr Yarnton. Ms Hayes asked how things had been going and Ms Yarnton said she told her “fucking shit, the abuse is continuing and it is out of control. Twenty days to go … he abuses me mentally, verbally and physically” (see MFI 43 at Q 51-53).

69. Ms Yarnton said that at that point, the applicant said to her, “I can get someone to knee cap him”. Ms Yarnton said she replied to the applicant’s suggestion “I don’t think so, I lock pricks up for this every day”. Ms Yarnton said the applicant then suggested “what about just smack him around?” and he offered to talk to Mr Yarnton and “tell him you’re a top chick”. Ms Yarnton said she replied “good on you, no problems but he won’t listen cause he’s rooting someone else” (see MFI 43 at Q 53- 64). Ms Yarnton said she didn’t think the appellant was serious. Ms Yarnton said she laughed and “didn’t think anything of it” (see MFI 43 at Q 178).

70. Ms Yarnton said that on 31 January 2015 at about 10.00am, she received a text message from Ms Hayes saying “Hey I’ve got problems with Fadi, can you, can you chat?”. Ms Yarnton said that she arranged to stop by Ms Hayes’s apartment; and that when she did so, the applicant again spoke to her and said “We’re going to see Dean tonight”, and Ms Yarnton said she replied “please don’t, I don’t need this, Dean is dangerous, Dean will kill you”. Ms Yarnton said that the applicant simply replied, “all will be good”. Ms Yarnton said she then said to the applicant “please don’t, if you hurt him … my kids will never forgive me” but that the applicant replied “it’s already been arranged”. Ms Yarnton said that she asked the applicant to call it off, saying “please I’m telling you to stop, I’ll tell the coppers it was you” but she said the applicant replied, “I’ve done things in the past, and I’ve always gotten away with it … I’m good at torching cars” (see MFI 43 at Q 78-84).

71. Ms Yarnton said that, after leaving the Oslands in Merrylands Bowling Club late that evening, she was driving on Woodville Road when she noticed a silver-coloured Subaru driving closely behind. Ms Yarnton said she could see the applicant sitting in the front passenger seat and the driver was flashing his lights at her. Ms Yarnton said that she tried to wake Mr Yarnton by shaking him, telling him to wake up, but she said he told her to “fuck off”. Ms Yarnton said that she pulled into an unknown street and parked for 15 minutes in an attempt to hide from the applicant; and that she then began driving down Henry Lawson Drive but pulled over to the side of the road as she felt physically sick about what had occurred. Ms Yarnton said that she got out of the car, turned the hazard lights on and walked into the bush to urinate; and that while she was in the bush she heard “Lebanese males yahooing … like laughing out loudly, talking loudly and it was like it was right in front of me, so it was very loud … it was echoing in the street”. Ms Yarnton said the males were speaking in a foreign language she knew to be Lebanese and said “I’ve heard Lebanese from being in the job” (see MFI 43 at Q 88-108).

72. Ms Yarnton said that she was afraid and walked deeper into the bush and contacted Ms Hayes by telephone. Ms Yarnton said Ms Hayes told her, “they’re there already … Fadi’s there with his cousins”. Ms Yarnton said that she told Ms Hayes to call it off, but Ms Hayes said “it’s too late, they’ve gassed [the] car”. Ms Yarnton said that she told Ms Hayes that “some cunt was tailgating me from the Meccano set” and said that Ms Hayes replied “yeah that was Fadi and his cuz” (see MFI 43 at Q 110-115).

73. After Ms Yarnton’s second interview, Ms Yarnton was alone in the interview room with Detective Lawson for a short period of time and continued to speak. Ms Yarnton said to Detective Lawson “I’m asking you female to female, please help me, save me. I’ll give you the loan [sic: lone] wolves and others. Please just don’t charge me with attempted murder” (27/05/19 T 1387.08).

Ms Yarnton’s iPhone

74. Mr Yarnton gave evidence that, after making a statement to police at Bankstown Police Station on 1 February 2015, he was driven home to Menai by his son and that, later in the day, he was “[l]ooking for answers … as to what happened the previous night [and] started going through stuff under the house, in the garage” (30/04/19 T 104.37) where the family stored things they were not using (30/04/19 T 104.49). Mr Yarnton said that he found an iPhone belonging to his wife and about $3,500 cash in a bag which was inside another bag (30/04/19 T 105.09). Mr Yarnton said that he accessed the phone; looked at his wife’s messages and Facebook account; and noticed messages on Facebook between Ms Yarnton and Ms Hayes, including the messages from the night before (see above). Mr Yarnton said he had met Ms Hayes on one or two occasions; and that she was previously in a relationship with his son during 2014 (30/04/19 T 114.46-T115.05). Mr Yarnton said that he saw the Facebook message Ms Yarnton had sent the applicant and that the message to the applicant was accompanied by “a grid map of all little squares with a – like a little red flag” but he could not recall for what location (30/04/19 T 115.48-49).

75. A subsequent download of the iPhone did not reveal such a map; nor did the examination by the officer in charge of Ms Yarnton’s Facebook account (see Ex SSS and Ex RRR; 11/06/19 T 1992).

Statement by the applicant to police about theft of his car

76. On 1 February 2015, the applicant attended Miranda police station and provided a written statement to police in relation to the theft of his vehicle the night before. In this statement, the applicant said that, between about 8.00pm and 8.30pm the night before, he had parked his car in front of his mother’s house at Rex Road in Georges Hall; that he was with his friend (Moey Rad) at the time; and that he was picked up from his mother’s house by a friend (“Anthony”) and driven home to Caringbah. The applicant was unsure of his friend Anthony’s surname. The applicant said that he usually parked his car at his mother’s house when he did not need it; and that he did not know how his car came to be in Karimbla Road at Miranda (Ex EEEE).

Arrests

77. On 2 February 2015, Ms Hayes and the applicant were arrested and charged (6/06/19 T 1886.44-1889.23). The applicant exercised his right to silence.

Ms Hayes’ ERISP

78. Ms Hayes participated in a record of interview (not admissible in the case against the applicant). Ms Hayes said she had known Ms Yarnton for two or three years; that Ms Yarnton told her that her husband had sexually assaulted her; and that she had been speaking with Ms Yarnton for some time and Ms Hayes said that “[a]ll the shit that she’s been saying to me for the past few months has been not normal”.

79. Ms Hayes said that during “the week that just passed” she had met Ms Yarnton at McDonald’s, Caringbah and had coffee (see MFI 44 at Q 97-103); that she walked to McDonald’s from her home nearby (A 106-109); and that the reason they met up was that Ms Hayes understood that the night before “her husband raped her” (see MFI 44 at Q 115) and “bashed her … drag her down the fucking hallway by her fucking hair” (see MFI 44 at 139). Ms Hayes said that at their meeting Ms Yarnton told her she had had enough of her husband and that he was a “fucking pig” (see MFI 44 at Q 141). Ms Hayes said she told Ms Yarnton to leave him “to fuck him off” but said Ms Yarnton told her she couldn’t because she had “too much to lose” (see MFI 44 at Q 167).

80. Ms Hayes said the pair met for about 20 minutes, after which Ms Yarnton drove her home (see MFI 44 at Q 181); that Ms Yarnton did not go inside her home or speak to anyone else while outside (see MFI 44 at Q 188-190); and that Ms Yarnton, who had “done everything for [her] is locked up for something she shouldn’t be fucking locked up for” (see MFI 44 at Q 204). Ms Hayes said (see MFI 44 at Q 205) that the police were “… fucking doing the wrong thing. He’s a fucking disgusting pig, and has probably set all of this shit up” and that “She’s a fucking beautiful woman, and should not be there” and “I don’t give a fuck what anyone says, that woman should not be there”.

Ms Hayes’ subsequent written statement

81. On 5 February 2015, when Ms Hayes was in custody at Silverwater Women’s Correctional Centre, Ms Hayes was interviewed by Joshua Carlson, a senior assistant superintendent (04/06/19 T 1746). Ms Hayes told Mr Carlson that Ms Yarnton had offered her money to murder her husband (04/06/19 T 1748.46). Later that day, Mr Carlson assisted Ms Hayes to prepare a notebook statement, which was subsequently tendered in the Crown case against Ms Hayes (Ex FFF; 04/06/19 T 1751.04).

82. In Ms Hayes’ notebook statement, Ms Hayes said that about a week before Ms Yarnton called her mobile phone and asked to meet at McDonald’s, Caringbah; that Ms Yarnton told Ms Hayes she couldn’t “Do it anymore”; and that Ms Hayes agreed to meet Ms Yarnton and the pair met at the front of McDonald’s, Caringbah and went inside. Ms Hayes said Ms Yarnton began telling her about “how her husband rapes her … bashes her and the kids…” and Ms Yarnton asked her if she would “knock” her husband (which Ms Hayes understood to mean “murder”). Ms Hayes said that Ms Yarnton told her that she was willing to pay and looked her straight in the eyes and said “this isn’t a fucking joke, I’m not fucking around”. Ms Hayes said she did not say much in response.

83. Ms Hayes said that, later, Ms Yarnton drove Ms Hayes home and that, when they arrived, Ms Yarnton got out of the car and showed Ms Hayes a bag in the boot containing three envelopes with large sums of cash money inside; and that Ms Yarnton said there was $20,000 and asked Ms Hayes again whether she would “do it”. Ms Hayes said that she answered “no” and that, when she did, Ms Yarnton became agitated and asked to see the applicant. Ms Hayes said that Ms Yarnton asked the applicant “if he could knock Dean, or whether he knew anyone that could do it” and that the applicant declined.

84. Ms Hayes said that she was in regular contact with Ms Yarnton over the following days; that Ms Yarnton came to see her at her house again and told her that what she had asked Ms Hayes to do was “still going to happen… her husband… owed about $20,000 to loan sharks and bikies for gambling debts”; and that Ms Yarnton asked Ms Hayes to stay in contact with her on Saturday night “so it didn’t look obvious” and gave her $2,000. Ms Hayes said she never agreed to murder Mr Yarnton and that, when asked to do so, she “definitely said ‘no’”.

First two trials

85. The first trial involving the applicant in this matter commenced on 15 May 2017 before Lakatos SC DCJ.

86. Prior to the commencement of that trial, both the applicant and Ms Hayes applied to be tried separately from Ms Yarnton. On 15 May 2017, Lakatos SC DCJ refused the applications for a separate trial in each case. The Crown had submitted that it would assert at trial that Ms Yarnton’s account in her second interview was not truthful. His Honour was of the view that the prejudice caused by Ms Yarnton’s inadmissible assertions was “weakened to some extent” for this reason. His Honour was not satisfied the Crown case against either the applicant or Ms Hayes would be made immeasurably stronger by reason of Ms Yarnton’s assertions in her second interview.

87. The jury was discharged on 18 May 2017 and the trial adjourned. At that time, Mr Mouhtaris had not been charged and was a witness in the Crown case.

88. On 22 May 2017, a second trial commenced before Lakatos SC DCJ. At that stage, the Crown case was that it was the applicant who was the person shown in the CCTV footage attending the Coles Express service station at Bass Hill on the evening of 31 January 2015 and purchasing one gas bottle (and stealing the other) (22/05/17 T 33.32).

89. On 20 June 2017, the jury in the applicant’s second trial was discharged and the trials of all three accused (the applicant, Ms Hayes and Ms Yarnton) were further adjourned (20/06/17 T 949.37).

Arrest of Mr Mouhtaris

90. On 5 July 2018, Mr Mouhtaris was arrested and charged. He exercised his right to silence.

Third trial

91. On 11 March 2019, the third trial commenced before Judge Culver. By this time, Mr Mouhtaris had been joined on the indictment as an accused, and the Crown no longer alleged that the applicant attended the Coles Express service station at Bass Hill during the evening of 31 January 2015; rather, the Crown case was that that person was Mr Mouhtaris (14/03/19 T 124.20). The Crown case in relation to the DNA results from the black glove found at the scene by this stage also included the result in relation to a DNA profile consistent with that of Mr Mouhtaris being identified, in addition to that of the applicant.

92. The applicant made a second application for a separate trial. That application was refused on 15 March 2019. Her Honour accepted that the Crown case against the applicant was circumstantial and that the jury would be invited to consider the combination of circumstances in determining whether the Crown had proved beyond reasonable doubt the applicant’s participation in a joint criminal enterprise as alleged on the indictment. Her Honour said that Ms Yarnton’s second interview “effectively set up a cut-throat position” and made “a number of assertions concerning Mr Houda’s involvement in the events of 31 January and 1 February 2015”. However, her Honour also said there were some potentially exculpatory aspects of Ms Yarnton’s assertions and pointed to the possibility that things allegedly said by the applicant to Ms Yarnton inside the apartment at Caringbah may be “suggestive of a different intention from that required for proof by the Crown for attempt murder”.

93. Her Honour was not satisfied that the Crown case against the applicant would be “impermissibly strengthened” by Ms Yarnton’s second interview and her Honour was not satisfied that the risk of prejudice to the applicant “survives appropriate directions”. Her Honour said:

Whilst it cannot be assumed that jurors will always be able to robustly apply directions of the Court in that regard, this is a case where the Crown case against Mr Houda is independently, by virtue of circumstantial reasoning, still strong …

Furthermore, the record of interview with Ms Yarnton to which I have referred, namely the second record of interview, does bear a cut throat style presentation and it will be the Crown’s position as noted previously by his Honour Judge Lakatos, that the Crown will be saying that in many respects, Ms Yarnton’s position in that interview distinctly lacks credibility.

94. On 18 March 2019, the jury were again discharged (18/3/19 T 190.23).

The final trial

Directions as to use of evidence admissible only against certain accused

95. In the course of opening remarks to the jury on 29 April 2019, her Honour said (29/04/19 T 18):

Ladies and gentlemen, as you can see there are four accused in this trial. I want to explain something to you at the outset which is very important. You must give separate consideration to the evidence against each accused in order to decide whether that accused is guilty of the offences on the indictment. Really, it’s the case that there are four separate trials being conducted, but they’re happening at the same time, for convenience.

There will be different types of evidence, and I said the evidence will take the form of what wins say to you. There might also be documents or photographs, things like that. The different types of evidence will be evidence that relates to one accused, some accused, or all accused. The reason we’re conducting the trials of each accused together in this one trial is really for convenience, because there be a large portion of the evidence that will be relevant to your consideration of all of the accused.

So it makes sense for one jury to hear that evidence, but there will also be evidence that will only be relevant to your consideration of, for example, one accused or some accused and not the remaining accused. As best as possible, the lawyers are going to try and help you by indicating whether it’s in respect of one or some accused. At the end of the trial, the lawyers will have an opportunity to speak to you about how they would invite you to put together the pieces of evidence or information in reaching your verdict, and they will again have an opportunity to say whether evidence is relied upon only in respect of one or more accused.

You must bear in mind that when you’re listening to the evidence there may be some portions of the evidence that cannot be used by you in your consideration of the other accused. But again, I expect the lawyers will be able to help in understanding which evidence relates to which accused.

96. The following day (on 30 April 2019), during Mr Yarnton’s evidence and at the point that the Crown tendered a map (against Ms Yarnton only) of the route driven by Mr and Ms Yarnton from Menai to Merrylands (Ex A), Counsel appearing for Mr Mouhtaris asked her Honour to explain to the jury the process of the evidence being admitted in only one of the accused’s cases and her Honour said (30/04/19 T 68.34-49):

It was mentioned during addresses yesterday, but it is appropriate that I reiterate the situation. You’ll remember yesterday I explained to you that there are four accused and essentially you’re hearing four trials at once, because it’s anticipated there’s going to be a lot of evidence which overlaps between the accused. But equally, I told you there would be some evidence that relates only to one accused or another. This is that type of evidence. This only relates to the case that the Crown brings against Mrs Yarnton.

So, at the end of the trial when you come to consider your verdicts, this is evidence that you may consider only in the case concerning Mrs Yarnton. So that’s why the Crown and the other lawyers will be doing their best to say if it’s evidence of that type that relates only to one accused, and this is that type. At the end of the trial I’ll give you more detailed directions about that issue of looking at evidence that relates to only one accused as opposed to all accused. Thank you.

97. On 27 May 2019, after evidence was given by Detective Lawson about her conversation with Ms Yarnton following her second interview during which Ms Yarnton offered to “give” the police “the [lone] wolves and others” (27/05/19 T 1387.09), her Honour said (27/05/19 T 1395.14-28):

Thank you, ladies and gentlemen, the Crown has clarified that the conversations between this officer and Ms Yarnton spoken of in the officer’s evidence are only led in the case concerning Ms Yarnton. You cannot use those conversations at all in any way in respect of the case concerning any other accused. Now, at the end of the trial I’ll be explaining that direction in greater detail, but it is important you understand that conversations held with Ms Yarnton and the police are in no way admissible in your consideration of whether the Crown has proved the case concerning any other accused.

You must isolate those conversations only in your consideration of the case concerning Mrs Yarnton. You cannot in any way refer to those conversations or consider them when you are looking at the case concerning any other accused. Now, in respect of the other observations at the scene made by this officer, that’s available in respect of your consideration of the case concerning all accused.

98. Shortly after this, her Honour gave a similar direction in relation to evidence given by another officer of discussions with Ms Yarnton (27/05/19 T 1412.05).

99. Then, on 31 May 2019, when the Crown formally tendered Ms Yarnton’s first record of interview, her Honour said (31/05/19 T 1664.16-42) (Ex AAA in case of accused Ms Yarnton):

Now that’s in the case of Ms Yarnton only. It’s very important you understand this. Anything said by one accused to the police cannot and must not be used by you in any way when you come to consider the case of another accused, and when you think about it that would only be logical because it couldn’t be the case you could just accept that one person could say something about other people in the trial when they are all accused. So you must understand that this evidence can only and must only be considered by you in the case of Ms Yarnton.

Now I also want to tell you another thing. Every person has a right to silence but if they take part in an interview that doesn’t mean that they bear the burden of proving anything to you that they say in that interview. The burden of proof always in this trial remains on the Crown to satisfy you of the elements of the offences beyond reasonable doubt to be considered by you separately in respect of each accused. So, just because Ms Yarnton has chosen to take part in an interview does not in any way shift that burden of proof to her to prove any matter to you. It does not mean that at all. The burden of proof still stays on the Crown.

I’ll give you more fulsome directions at the end of the trial when you and I have heard all of the evidence, but you must understand that the burden of proof always remains on the Crown, and if there is a version of events that’s given in an interview that could reasonably be true and could reasonably support the innocence of the person being interviewed, then it’s for the Crown to prove to you the guilt of the accused beyond reasonable doubt. In other words, to disprove that version of events beyond reasonable doubt. I’ll explain that to you in more fulsome detail later.

100. When the Crown formally tendered Ms Yarnton’s second record of interview (Ex BBB in case of accused Yarnton) (MFI 43), her Honour said (31/05/19 T 1667.20):

And the same directions apply, ladies and gentlemen, as I gave for the first interview and first transcript. I want to remind you that nothing said by an accused to police can at all be considered by you in respect of your consideration of any other accused’s case. So you cannot consider anything said by one accused in the case of another accused.

101. On 4 June 2019, when the Crown tendered Ms Hayes’ notebook statement, (Ex FFF in case of accused Hayes), her Honour said (04/06/19 T 1751.08-15):

Ladies and gentlemen, I’ve already directed you that the circumstance of being in custody cannot be used by you in any way against an accused and you must not use it. It’s irrelevant to your considerations. Also, you can only use the evidence arising from this witness in respect of Ms Hayes and you must not use the evidence in any way against any of the other accused. Even if they are mentioned in the course of the evidence, this evidence is only available in your consideration of the case concerning Ms Hayes and you must not use the evidence against any other accused. Thank you.

102. On 6 June 2019, following evidence about the arrests of Ms Hayes, the applicant and Mr Mouhtaris, her Honour said (06/06/19 T 1889.25-1890.24):

Ladies and gentlemen, I want to give you some important directions about the evidence that you’ve heard this morning. First of all, you’re aware that two of the accused - Ms Yarnton and Ms Hayes - did undergo interviews with police. You’ve also heard that two of the accused - Mr Houda and Mr Mouhtaris - exercised their right to silence. You’ll remember at the beginning of the trial, I explained that, really, what is happening in these proceedings is that there are joint trials. The case of each accused will need to be considered by you separately when you come to deliberate upon your verdicts. I’ve explained to you that you cannot use what is said by one accused to police in any way, against another accused.

The burden of proof always rests on the Crown in this trial, and that burden is to prove the elements, or the ingredients, of the offences beyond reasonable doubt and at the end of the trial, I’ll give you a document setting out those steps or ingredients, or what we call elements of the offences. You’ve also heard from me at the beginning of the trial that each accused, indeed, all of us, bear a presumption of innocence, and that presumption remains there unless and until the Crown proves the elements of the offences to you beyond reasonable doubt. You’ve also heard that the accused have a right to silence, as indeed, we all do.

You’ve heard that each of the accused was told that they have a right to silence. The two accused who chose to give an interview to police, or in Ms Yarnton’s case, two interviews to police, do not abandon their presumption of innocence in giving those interviews. They don’t change the burden of proof to them to prove any matter to you. Even if you reject what has been said in an interview by an accused, that does not, of itself, mean, that the accused is guilty. The Crown still has to prove its case against the accused in respect of the elements of the offences, beyond reasonable doubt. If you find that what is said by an accused in an interview is a version of events that is reasonably possible, then the Crown has to disprove that innocent version given by the accused, beyond reasonable doubt.

Now, ladies and gentlemen, for the two accused who chose not to give an interview to police, it would be quite wrong of you, having heard that each of them were told by police they had the right to silence, for you to somehow use it against the accused for not giving an interview to police, and you must not do that. The fact that the accused took note of the caution given by the police, and chose to remain silent, cannot be used by you against that accused. You must not use the fact that a person, an accused, has exercised his right to silence against the accused. You must not treat the fact that two accused chose to give an interview and two chose not to as some kind of suspicion arising in respect of any accused. You cannot use that circumstance.

You must not speculate about what might have been said by an accused person. Instead, the golden rule that I keep repeating and is so vitally important, is that only the Crown needs to prove anything to you, and the Crown must prove to you, before you can find any accused guilty of an offence, the elements of the offence beyond reasonable doubt. And the burden never shifts to an accused person.

167. The Crown further says that Mr Yarnton’s evidence as to the car he saw at the scene (while the Crown accepts this provides little support for the proposition that the applicant’s vehicle was at the scene) did not negate the possibility that it was the applicant’s car. The Crown says that it was other evidence (as referred to above) which supports this proposition, noting that Mr Yarnton’s evidence supported the conclusion that there had in fact been another car at the scene.

168. The Crown also relies on the communications in Ex DDDD as supporting the conclusion that the applicant was at the crime scene with Mr Mouhtaris (and not with Ms Hayes). (In that regard, the applicant says that the lack of communications from the Anthony Mouhtaris phone(s) to the Monique Hayes (3) telephone from 8.24pm is consistent with the applicant’s evidence that he parked his car outside his mother’s house at Georges Hall between 8.00pm to 8.30pm and was picked up from there and taken home. That, however, does not address the fact that the communications between their phones resumed at around 2.00am, shortly after the applicant’s vehicle was set alight; nor the fact that there were numerous communications between the Monique Hayes (2) and Monique Hayes (3) telephones in that interim period (which cannot be consistent with the applicant being at his home at the time).

169. The Crown further says that the petrol and gas bottles, together with a lighter, indicate that a fire or explosion was intended. It is noted that Mr Yarnton was asleep in the car. The Crown says that it is most likely that his death did not occur because he awoke or something else frightened away the applicant and Mr Mouhtaris. The Crown maintains that, where almost everything except for the final spark of the light was done to achieve Mr Yarnton’s death, it was open to conclude that his death was intended.

170. As to the setting on fire of the applicant’s car, the Crown says that the location of the applicant’s Subaru was itself a piece of evidence that contradicted any claim that the applicant or his car had not been involved in the commission of the offence. From that, and all of the other evidence of the applicant’s involvement in the offence, the Crown says that the conclusion was open that the applicant was involved in setting fire to the car to try to destroy evidence.

171. It is noted that there was little time for the applicant and Mr Mouhtaris, having left Picnic Point, to drive back to Miranda and burn the Subaru and thus little time to consider the possibilities for doing so, other than having been in some way frightened off from completing the intended plan and believing there was a need to cover up the use of the applicant’s car in the commission of the offence.

172. The Crown argues that it would be fanciful to suggest that the applicant’s Subaru was stolen and set alight only a short distance from the applicant’s home after the commission of the offence at Picnic Point in the context of all the other evidence in the case; and therefore that it was well open to the jury to conclude that it was driven back to where it was set alight by the applicant and Mr Mouhtaris who then left it to return to the unit block where they both lived in Caringbah (which was remarkably close to where they had left the Subaru).

173. The Crown says that it was therefore open to conclude that the Subaru was set alight to destroy evidence of the applicant’s participation in the crime (whether or not this was an intelligent or successful endeavour). The Crown says that the fact that there was no CCTV footage confirming who set the car alight or whether anyone left the car for the residence of the applicant does not detract from the timing and location of the events.

174. For the same reason, the Crown says that the applicant lied to police when he made a statement saying that his car was stolen from his mother’s house in Georges Hall that night. The Crown says that if it was open to conclude that the applicant and Mr Mouhtaris burnt the Subaru, then it follows that the applicant lied about it; and that if they burnt the car because of their involvement then it follows that the lie the applicant told must have been for the same purpose.

175. It is noted that, at trial, it was put on the applicant’s behalf that there was nothing available to show that the applicant had lied; and that other explanations for the applicant’s lie to police (for example: consciousness of guilt for some other offence like being accessory; the protection of Mr Mouhtaris and Ms Hayes) now relied upon by the applicant (see applicant’s submissions at [234]), were not relied upon at trial.

176. In particular, the Crown says that the possibility of the applicant covering up the guilt of Ms Hayes or of Mr Mouhtaris was not before the jury, which was entirely consistent with the manner in which the applicant’s case was put; and that this is not a matter that should now be able to be relied upon, now that the applicant’s guilt is considered in the absence of his alleged co-offenders.

177. Overall, the Crown says that, while the applicant may be able to show why there is a reasonable possibility that each circumstance relied on by the Crown is not made out, that is not to the point and falls foul of the caution against piecemeal reasoning in circumstantial cases. It is submitted that there is no need for the Crown to have proven each (or any) circumstance beyond a reasonable doubt; rather, the combined force of all of the circumstances relied on by the Crown proves the applicant participated in the joint criminal enterprise.

178. As to the contention that there was a reasonable possibility that the plan was not to kill or cause grievous bodily harm to Mr Yarnton (see the applicant’s submissions at [237]-[239]), the Crown says that the physical state of the scene was consistent with an attempt to cause an explosion or fire in order to kill Mr Yarnton. In particular, it is said that the cigarette lighter would not have been needed if the plan was simply to frighten Mr Yarnton; and that the open gas bottle near Mr Yarnton’s head speaks loudly of the intended outcome.

179. Thus, the Crown submits that when the evidence is considered cumulatively the applicant’s conviction was not unreasonable.

Consideration

212. The applicable legal principles have already been summarised above. I am not persuaded that, on the whole of the evidence, the jury must have entertained a reasonable doubt as to the applicant’s guilt. I accept that, as a circumstantial case, if there was a rational inference or hypothesis consistent with innocence that was open on the evidence, then the applicant was entitled to the benefit of the doubt necessarily created by that circumstance (to adopt the language of the authorities referred to above) but I do not see (taking into account the overall evidence) that there was a rational inference (consistent with the appellant’s innocence) that the jury acting reasonably could not have rejected.

213. There was much emphasis placed in the applicant’s oral submissions on the DNA evidence and the perceived inconsistency between Mr Yarnton’s evidence as to the vehicle he observed at the scene and the CCTV footage of the vehicle passing by the Coles Express and turning into Strickland Street (particularly, as to the absence of a third tail light). As to the former, it became apparent on the Court’s viewing of the CCTV footage that the third taillight was not visible when the vehicle was moving (which supplied a ready answer to that perceived inconsistency). Nevertheless, the applicant maintains that the evidence as to the Coles Express is so weak and tenuous as to amount to a glaring deficit in the Crown case that the applicant was present at the scene.

214. As to the debate as to the weight to be placed on the DNA evidence in relation to the glove and the possibility of transference, as noted above the applicant submits that the DNA evidence is particularly pertinent, noting that the glove is a moveable item, that the DNA was discovered on the inside of the glove and that the evidence was that it was not possible to put a date range on when the DNA was put there (see the evidence of Officer Barry in his cross-examination; and the expert evidence of Ms Sasadek).

215. The applicant’s argument is that the third scenario posted by the expert involved the highly improbable scenario that both the applicant and Mr Mouhtaris wore the glove at the scene. The applicant argues that, combined with the fact (undisputed as between the Crown and Mr Mouhtaris) that Mr Mouhtaris obtained the gas bottles and took them (on the Crown case) to the scene, the inference is that it is highly probable that it was Mr Mouhtaris’ DNA in the glove (see T 3).

216. Having regard to the statistical likelihood ratios themselves, it is noted that the comparison is not as to whether it is more likely that the DNA was from the applicant than Mr Mouhtaris; it is a comparison with unknown related individuals; and thus equivocal.

217. Thus it is submitted by the applicant that the likelihood ratios (on the expert’s evidence) are all equally possible; and that there is a reasonable possibility (one said to be highly probable by reference to the fact that Mr Mouhtaris obtained the gas bottles) that it was Mr Mouhtaris’ DNA; since transference could not be excluded, reasonable possibility that it was not the applicant’s DNA in the glove could not be excluded. The significance of this for the applicant is that it is argued that the DNA evidence was critical to the Crown case in order to place the applicant at the scene.

218. I accept that the DNA evidence is of little value. Looked at in isolation (both the evidence to likelihood ratios and the evidence as to transference) it does not exclude the reasonable possibility that it was only Mr Mouhtaris’ glove (and that the DNA evidence taken alone would give rise to a reasonable doubt as to the applicant’s presence at the scene).

219. However, the timing of the telephone and Facebook communications (coupled with the text of various of the text messages), taken in conjunction with the evidence as to Mr Mouhtaris’ purchase (and theft) of gas bottles from the service station and the evidence of a vehicle appearing to be that of the applicant at the Coles Express when the gas bottles were obtained, to my mind dispels any reasonable doubt that the applicant was indeed part of a joint criminal enterprise to murder or cause grievous bodily harm to Mr Yarnton. The suggestion that there was a reasonable possibility that all that was intended was to frighten Mr Yarnton cannot be accepted, given the presence of the open gas bottles, petrol around the vehicle, and a lighter in the vicinity. While the applicant criticises the Crown case theory as an elaborate plot, the suggestion that the steps taken were no more than a plan to frighten Mr Yarnton seems to me to be an even more elaborate (and frankly implausible) scenario.

220. There is no rational inference to support a conclusion that Ms Hayes was using both the Monique Hayes (1) and (2) telephone devices to send messages to herself or make calls to herself on the Monique Hayes (3) telephone device; and the only rational inference is that the applicant was the user of the third device (for the reasons that the Crown contends and that have been explored above). Nor is it a rational inference to suggest that the applicant was not with Mr Mouhtaris at the scene (but, was at home with Ms Hayes in, say, another room in his unit). The sequence (and timing) of communications from Ms Yarnton’s telephone device, first, to Ms Hayes (and then from Ms Hayes to the applicant), particularly coupled with the “Hey where r they” and “no One is here” messages is particularly telling (as is the Facebook message to the applicant – which otherwise, on the applicant’s argument would be coming seemingly out of the blue and with no explanation).

221. The fact that the applicant’s car was set alight shortly after the police had been called to the Picnic Point scene (and so close to where the applicant and Mr Mouhtaris both lived), coupled with the absence of telephone communications between Mr Mouhtaris’ telephone numbers and the Monique Hayes (3) telephone number, supports the conclusion that was an attempt to destroy evidence of the failed attempt at Picnic Point.

222. In those circumstances (and disregarding the DNA evidence which I accept is of little value), I am satisfied that the verdict of guilty was not unreasonable.

Proposed orders

223. I would dismiss ground 2. In circumstances where I agree with Adamson J as to ground 1, I would therefore propose the following orders:

1. Extend time for the filing of the notices of appeal and grant the applicant leave to appeal.

2. Dismiss the applicant’s appeal against conviction.

224. ADAMSON J: Fady Houda (the applicant) seeks leave to appeal against his conviction on two grounds, the first of which is that a miscarriage of justice was occasioned as a result of his being tried jointly with Sharon Yarnton, one of the co-accused.

Ground 1

The applicable principles

225. Section 29 of the Criminal Procedure Act 1986 (NSW) relevantly provides:

“29   When more than one offence may be heard at the same time

…

(2)     A court may hear and determine together proceedings related to offences alleged to have been committed by 2 or more accused persons in any of the following circumstances—

(a)  the accused persons and the prosecutor consent,

(b)  the offences arise out of the same set of circumstances,

(c)  the offences form or are part of a series of offences of the same or a similar character.

(3)     Proceedings related to 2 or more offences or 2 or more accused persons may not be heard together if the court is of the opinion that the matters ought to be heard and determined separately in the interests of justice.”

226. The general rule is that persons charged with committing an offence jointly should be tried jointly: Webb v R (1994) 181 CLR 41; [1994] HCA 30 (Webb) at 89 (Toohey J, Mason CJ and McHugh J agreeing). His Honour qualified the general rule, at 89, as follows:

“There are of course dangers for an accused in a joint trial by reason of the admission of evidence which would not be admitted at the trial of one accused. That risk must be obviated by express and careful directions to the jury as to the use they may make of the evidence so far as it concerns each accused.

In the end the critical question before an appellate court in these circumstances is whether, by reason of the joint trial, there has been a substantial miscarriage of justice or, put another way, whether improper prejudice has been created against an accused.

In the present case adequate directions were given by the trial judge. It is true that Webb did not give evidence and was therefore not subject to cross-examination, though the jury heard his statements to the police implicating Hay. But, as King CJ observed: ‘That is a common feature of a joint trial and does not of itself render separate trials necessary.’”

[Citations omitted.]

227. The rule applies against a background that it is accepted that a joint trial has the potential to cause prejudice to an individual accused. Typical circumstances where a risk of prejudice arises include where one accused, in a recorded interview (which is only admissible against that accused), seeks to blame another accused (against whom the recorded interview is inadmissible). In such cases, the risk of prejudice is generally thought to be capable of being removed or ameliorated by a direction as to the use to which the evidence can be put: Webb at 89.

228. However, irrespective of whether the discretion to refuse an application for separate trials has been properly exercised, this Court has jurisdiction to set aside a conviction if there has been “injustice to the accused in the manner the trial unfolded”: Caleo v R (2021) 290 A Crim R 352; [2021] NSWCCA 179 (Caleo) at [136] (Bathurst CJ, Beech-Jones and N Adams JJ agreeing) at [136]. In performing this assessment, the directions given by the trial judge must be taken into account: Caleo at [136].

229. In Caleo at [137], Bathurst CJ endorsed the summary of principles set out by Hunt J in R v Middis (Supreme Court (NSW), Hunt J, 27 March 1991, unreported) (Middis) as follows:

“Briefly, the relevant principles are that: (1) where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him, and (2) where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him, and (3) where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material, a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that positive injustice would be caused to him in a joint trial.

…

I do not believe that the Court of Criminal Appeal in Regina v Oliver [(1984) 57 ALR 543] intended an applicant for a separate trial to demonstrate that positive injustice would more likely than not be caused by a joint trial (as it was suggested in argument); nor do I accept that a mere possibility of prejudice is sufficient (as it was also suggested in argument). In my view, what the Court of Criminal Appeal was saying was that, as some prejudice to one or other accused is inevitable in any joint trial, it must be shown by an applicant for a separate trial that the particular prejudice upon which reliance is placed by him would – if it arises [–] result in positive injustice to him in a joint trial.” (Emphasis added.)”

230. Ms Bashir SC, who appeared with Mr Howell on behalf of the applicant, confirmed that no challenge was made to the refusal of Lakatos SC DCJ and Culver DCJ in respect of interlocutory applications, to order separate trials. However, she contended that the effect of the refusal in all of the circumstances of the trial was to cause a miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW). She submitted that the Crown case against the applicant was significantly weaker than the Crown case against Ms Yarnton but that there was a substantial risk that the Crown case against the applicant would be, illegitimately, made stronger both by the recorded interviews of Ms Yarnton, in which she sought to implicate the applicant, and the recorded interview of Ms Hayes (another co-accused), which tended to support what Ms Yarnton had told police. She submitted that the directions given by the trial judge were insufficient to ameliorate this potential prejudice, which had deprived the applicant of a fair trial.

231. The gravamen of the applicant’s submission in support of the first ground is that Ms Yarnton, in her recorded interview, sought to exculpate herself by implicating the applicant. By contrast, the applicant denied any role in the joint criminal enterprise and did not seek to cast blame on Ms Yarnton. Further, Ms Bashir contended that the evidence of Ms Hayes, which corroborated Ms Yarnton’s evidence, created a risk of prejudice to the applicant.

232. In order to address the ground, it is necessary to summarise the evidence which Ms Bashir identified as being prejudicial to the applicant and inadmissible against him.

Ms Yarnton’s recorded interviews

Ms Yarnton’s first recorded interview on 1 February 2015

233. Police arrested Ms Yarnton at Picnic Point and brought her back to the police station where she confirmed in a recorded interview what she had told them at Picnic Point. Her recorded interview commenced at 7.07am on 1 February 2015. She told police that Dean Yarnton, her husband, was violent towards her. She said that she had been driving him back from Merrylands where they had had dinner with friends when she had wanted to go to the toilet. She said that she had pulled into Picnic Point to relieve herself and that Mr Yarnton had been asleep. She said that she did not know anything about the gas bottles or petrol in their car. She told police that she had heard “hoons” driving around as she was going to the toilet.

233. She told police that she had seen at the scene at the relevant time a silver car which was the same colour as the applicant’s vehicle, a Subaru Impreza. The first interview concluded at 8.28am.

Ms Yarnton’s second recorded interview on 1 February 2015

235. Ms Yarnton was interviewed again by the police commencing at 4.40pm on 1 February 2015. She told police that, in late January 2015, the applicant had offered to get someone to “knee-cap” her husband or to “knock him [out]” or to “smack him around”. She said that this conversation occurred at the apartment where the applicant lived with his wife, Ms Hayes. She also told police that subsequently, on 31 January 2015, the applicant told her that he and others would be seeing her husband that night; that it had “already been arranged”; and that the applicant had “done things in the past”, which he had got away with and that he was “good at torching cars”.

236. Ms Yarnton also told police that, while she was driving home from Merrylands on Woodville Road on 31 January 2015, she had seen the applicant’s vehicle flashing lights at her from behind and that the person in the front passenger seat looked like the applicant. Ms Yarnton said that she tried to wake up Mr Yarnton but he could not be roused.

237. According to Ms Yarnton, she was very scared about what the applicant would do to her husband. She told police that she rang Ms Hayes and asked him to stop her husband from harming Mr Yarnton, to which, according to Ms Yarnton, Ms Hayes said, “It’s too late, they’ve gassed [the] car.”

238. Shortly after Ms Yarnton’s second police interview, the applicant was arrested by police.

239. As Ms Yarnton did not give evidence at the trial, the applicant had no opportunity to challenge these versions given in her recorded interviews.

Evidence of Ms Hayes

240. Because Ms Hayes was tried jointly with the applicant, the evidence which was solely admissible against her, such as her recorded interview, was admitted in the trial and heard by the same jury which was responsible for determining the applicant’s guilt. Ms Bashir identified the following two aspects of Ms Hayes’ evidence which she submitted corroborated the account which Ms Yarnton had given in her recorded interview:

1. the meeting which Ms Yarnton said she had with Ms Hayes in the week leading up to 31 January 2015; and

2. that Ms Yarnton had gone back to Ms Hayes’ unit (in which she lived with the applicant) at Caringbah that day where Ms Yarnton had asked the applicant if he could “knock” Mr Yarnton or whether he knew anyone who could.

The Crown case against Ms Yarnton

241. The Crown case against Ms Yarnton was that she wanted to kill her husband and had enlisted the help of others (Ms Hayes, the applicant and Mr Mouhtaris) to incinerate him in their own car, a Nissan Navara, but to make it look as if she was not involved. The Crown submitted that her motive arose from the fact that he had been unfaithful to her with a colleague and that the two were soon to part, having agreed on the division of their matrimonial property, which included their house, the sale of which was shortly to settle.

The Crown case against the applicant

242. The Crown relied on the following to prove the applicant’s involvement in the joint criminal enterprise to kill Mr Yarnton:

1. the applicant’s vehicle was involved in the events of the night, including as the vehicle which was used to collect the gas bottles from Coles Express on the Hume Highway and deliver them to Picnic Point;

2. the applicant was one of the occupants, but not the only occupant, of his vehicle on the night;

3. Mr Mouhtaris also occupied the applicant’s vehicle on the night and had gone to Coles Express in that vehicle to collect the gas bottles, one of which he purchased and one of which he stole;

4. the applicant’s vehicle was present at the scene at Picnic Point where Mr Yarnton was inside the Nissan Navara;

5. the applicant was also at the scene;

6. the applicant and Mr Mouhtaris used gas bottles and petrol in and around the Nissan Navara with the intention of causing a fire or explosion to kill Mr Yarnton; and

7. shortly afterwards, the applicant and Mr Mouhtaris set fire to the applicant’s vehicle in Miranda, within short walking distance of the apartment block in which each occupied a unit with his spouse or partner.

Ms Yarnton’s defence case

243. In closing address, Ms Yarnton’s trial counsel relied on what Ms Yarnton had told police in the second interview and described it as “the most plausible account given by her and really the only one that explains what went on.” Her counsel suggested that others, including the applicant, might have taken things into their own hands, intending to help her but actually acting contrary to Ms Yarnton’s wishes.

244. In the course of final address, Ms Yarnton’s trial counsel said:

… So the fact remains that Ms Yarnton at no time positively knew where the gas cylinders and fluid came from. She didn’t look under the seats of the utility that was ordinarily driven by her husband not her. If, for example, items had been stored under there, there is no way that she would’ve seen them at night. She had no reason to check the ute. But there are consistencies between the first record of interview and the second record of interview including that important one that I’ve just highlighted. Surprised by the gas and the fuel. No idea that was going to happen.

As I said, you might think that the account Ms Yarnton gives in the second record of interview is the most plausible account given by her and really the only one that explains what went on. Now I’m going to dub that account as the ‘I, Tonya scenario, Theory or Defence’, and that’s a film about ice skating. Now I’m going to actually finish off with that scenario, so I’ll take you to it later on, but it’s about a plan going off the rails really. Someone taking the idea of a plan and going off pissed if you’re a skier and doing something else.

…

So this is what I referred to earlier on in submissions as what I'll call the ‘I, Tonya defence’ and I’m just going to refer briefly to that film starring Margot Robbie - and this is not evidence. This is just an analogy to assist you with how I suggest you might think about the evidence. That was this movie about a real life incident between Tonya Harding and Nancy Kerrigan, and Tonya Harding had received some death threats and actually her ex-husband contact a friend to send phoney death threats back to Nancy Kerrigan to discourage her from competing.

That friend then engaged two very seemingly unintelligent people in the task and they decided the great idea would be to travel a distance to where Nancy Kerrigan was training; take out a retractable baton and baton her on the knees. They did that and caused her injury, but she was actually able to compete in the competition at any rate later down the track. They were caught. They left a trail of credit cards, CCTV of them in the car and all that sort of things. Tonya Harding wasn’t convicted of her actual involvement in any plan to harm her rival.

So that film was a fictionalised version of a reasonably well-known real life event, but there are parallels and they’re parallels like the ex-husband hired someone to write letters, but that someone engaged others who decided to do their own plan. They went off plan. They went off pissed, if you’re a skier. They took matters into their own hands and apparently, the ex-husband tried to call it off to no avail. So what the ex-husband’s friend’s friends did was make a new plan with entirely new and far more serious potential outcome. It wasn’t a plan that Tonya’s ex-husband was ever a party to and Tonya Harding was apparently not a party to it, although that’s equivocal in real life.

So what I’m suggesting to you is that that is a[n] analog[ous] situation to what Ms Yarnton has described in the second record of interview save, in the case that you are considering, nobody got hurt. And you might think that the second record of interview, where Ms Yarnton you might think is much calmer than the first interview, offers a very plausible explanation of the prequel to what eventually happened.

Now there’s a tagline from that film, ‘I Tonya’, and it’s this. Tonya, by the way, was seen as an outsider in the skating circles, and the tagline is ‘Fitting in is overrated’. Now that’s a tagline that might be useful to you in your consideration of these proceedings this way. Just because a scenario outlined 45 in the second record of interview might not fit in, doesn’t fit in, with the Crown case theory, that does not mean you automatically reject that second record of interview. If for you it’s a reasonable plausible possibility that cannot be rejected, then the Crown cannot and has not proved its case.

245. The Crown objected to the references to “I, Tonya” in the closing address of Ms Yarnton’s trial counsel, as did the applicant’s trial counsel and trial counsel for Mr Mouhtaris. There was a discussion about an appropriate direction to rectify any prejudice arising from these references. When the jury returned, her Honour directed the jury that they were to decide the case solely according to the evidence. Her Honour further directed them to put out of their minds any consideration of the movie, the case that was connected with the movie and the outcome of the movie or the associated case. Her Honour told them that these matters were completely irrelevant to their deliberations.

The potential prejudice to the applicant of being tried jointly with Ms Yarnton

246. Ms Bashir argued that although the Crown case was that Ms Yarnton was lying in her recorded interview, significant aspects of Ms Yarnton’s recorded interview supported the Crown case against the applicant. She submitted that of the matters relied on by the Crown in its case against the applicant (listed above), (1), (2), (4), (5) and (6) were consistent with what Ms Yarnton had said to the police in the interview. Further, she submitted that the reliance placed by Ms Yarnton’s trial counsel on the second recorded interview would have served to underline its significance to the jury.

247. She submitted that the submissions made by Ms Yarnton’s trial counsel by reference to the “I, Tonya” movie illustrated the prejudice which being tried jointly with Ms Yarnton caused, or potentially caused, to the applicant.

248. Ms Bashir accepted that the trial judge had directed the jury that it was only permitted to use evidence admissible against a particular accused against that accused and that such evidence had been adequately identified.

249. She sought to distinguish Caleo from the present case by submitting that, in Caleo, the evidence which was inadmissible against the co-accused was limited to three short paragraphs whereas the evidence inadmissible against the applicant (referred to above) was substantial and figured largely in the trial both in the Crown case and in the defence case of Ms Yarnton.

The directions given or other steps taken by the trial judge to ameliorate the potential prejudice

250. Ms Bashir identified in her written submissions the various directions given and the steps taken by the trial judge. The Crown accepted that these had adequately been identified. They included the following directions in the summing up:

1. a direction that the jury could only use a version given by one accused in a recorded interview in the case against that accused and not in the case of any other accused;

2. a direction that the jury could only use evidence admissible against the particular accused with whom they were concerned and had to “exercise a very disciplined mind” and “rigorously make sure” to “quarantine” the evidence in that way;

3. a direction that although the trials were being heard together as a matter of administrative convenience, there were actually four separate trials, and that they could return different verdicts for each trial;

4. a direction that the jury must disregard the fact that some accused had given good character evidence when considering the case of other accused who had not adduced such evidence; and

5. a direction to disregard the references to “I, Tonya” and to decide the case of each accused solely on the basis of the evidence admissible against that accused.

251. None of these directions was the subject of complaint. Nor were any further directions sought and not given. The applicant is bound by the conduct of his counsel in that respect: R v Birks (1990) 19 NSWLR 677 at 684-685 (Gleeson CJ, McInerney J agreeing).

Consideration

252. I accept that the three conditions in Middis are met in this case. The Crown case against Ms Yarnton was significantly stronger than that against the applicant. She had, after all, a motive to kill her husband (financial and emotional). She had exhibited significant animus against him as a consequence of his infidelity which appears to have been the source of her grievance towards him and the breakdown of their marriage. In the context of this matrimonial drama, the applicant, as the partner of one of Ms Yarnton’s friends, Ms Hayes, was peripheral. Further, the recorded interviews of Ms Yarnton were prejudicial to the applicant (because she sought to implicate him) and inadmissible against him. There was the potential for the jury to reason illegitimately towards his guilt from her recorded interviews.

253. The narrative which Ms Yarnton gave in her second police interview was repeated in her closing address by reference to the “I, Tonya” movie, with a view to persuading the jury that it was reasonably possible that Ms Yarnton had, unwittingly, given her friends the impression that she wanted her husband to be harmed or killed, when in fact this was not her intention.

254. It does not, however, follow from the presence of a risk that it ensued or that the conviction ought be set aside. The applicant must establish some positive injustice which could not be, or was not, ameliorated by the directions given by the trial judge. The efficacy of directions to ameliorate potential prejudice needs to be assessed by reference to the particular case: Allen v R [2020] NSWCCA 173 at [112] (Bell P, as his Honour then was, with whom Davies J agreed).

255. Although weaker than the Crown case against Ms Yarnton, the Crown case against the applicant was, as the consideration by Ward P of the unreasonable verdict ground demonstrates, nonetheless a relatively strong case. It was based on several strands of circumstantial evidence which implicated him in the joint criminal enterprise. Further, the Crown case was that Ms Yarnton was a liar and that her version in her recorded interviews (particularly the second) ought not be accepted. The jury returned a verdict of guilty for Ms Yarnton and therefore can be taken to have excluded her version in the second interview, in so far as it exculpated her, as a reasonably possible hypothesis. In these circumstances, the prospect that the jury illegitimately relied on Ms Yarnton’s version (contrary to the directions given to them by the trial judge) to convict the applicant would appear to be remote. Indeed, I am satisfied that the jury followed the trial judge’s directions and returned a guilty verdict against the applicant based on evidence which was admissible only against him.

256. Whatever transient impression the references to the “I, Tonya” movie may have made on members of the jury, the unequivocal direction given by the trial judge to disregard what had been said about it was given swiftly after the movie had been referred to in Ms Yarnton’s closing address. In my view, her Honour’s direction was sufficient to remove any prejudice which might otherwise have arisen from such references.

257. For the reasons given above, I am not persuaded that the applicant has been, by being tried with Ms Yarnton (and Ms Hayes), deprived of a real chance of acquittal.

258. In relation to ground 1, I propose the following orders:

1. Grant leave to appeal.

2. Dismiss the appeal.

259. As to ground 2, I have had the benefit of reading the reasons of Ward P in draft and gratefully adopt her Honour’s extensive summary of the evidence and the submissions. Having reviewed all of the evidence in the trial, I am satisfied that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt of count 1. Accordingly, I agree with the orders her Honour proposes in relation to ground 2, substantially for the reasons given by her Honour.

260. DHANJI J: I have had the significant benefit of reading the reasons of Ward P and Adamson J in draft form. I agree with the orders proposed by their Honours. Having conducted my own assessment of the case against the applicant, the reasons of Ward P reflect the reasons for my agreement in relation to ground 2. The reasons of Adamson J in relation to ground 1 reflect the reasons for my agreement in relation to that ground.

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Decision last updated: 26 August 2022