R v JPH - [2024] SASC 137

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)

R v JPH
Criminal Trial by Judge Alone
[2024] SASC 137
Reasons for the Verdict of the Honourable Justice Stein
5 December 2024
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - CONSTRUCTIVE MURDER
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER - ALTERNATIVE VERDICTS
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - COMMON PURPOSE OR JOINT CRIMINAL ENTERPRISE
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - DURESS AND COMPULSION
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - EVIDENCE - CIRCUMSTANTIAL EVIDENCE
CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS - RECORDS OF INTERVIEW
On 8 and 9 October 2018, a group of men broke into a grow house in Para Vista and stole cannabis. During these events, Mr Urim Gjabri was attacked and later died from his injuries. The accused was charged with the murder of Mr Gjabri contrary to s 11 of the Criminal Law Consolidation Act 1935 (SA).
The prosecution case sought to prove guilt through two pathways being common law murder by extended joint criminal enterprise and causing death by an intentional act of violence by joint criminal enterprise pursuant to s 12A of the Criminal Law Consolidation Act 1935 (SA). The accused raised a defence of duress.
Held:
1.      The accused is not guilty of murder.
2.      The prosecution proved beyond reasonable doubt that the accused did not act under duress.
3.      The accused is guilty of manslaughter.
Criminal Law Consolidation Act 1935 (SA) ss 11, 12A, 137(2), referred to.
Da Silva v The Queen (2019) 268 CLR 57; De Gruchy v The Queen (2002) 211 CLR 85; Plomp v The Queen (1963) 110 CLR 234; McAuliffe v The Queen (1995) 183 CLR 108; Mitchell v The King (2023) 276 CLR 299; Likiardopoulos v The Queen (2012) 247 CLR 265; Miller v The Queen (2016) 259 CLR 380; R v Polanski [2005] SASC 361; Gillard v The Queen (2003) 219 CLR 1; Huynh v The Queen (2013) 295 ALR 624; R v Sumner (2013) 117 SASR 271; R v Perks (1986) 41 SASR 335; Ryan v The Queen (1967) 121 CLR 205; Royall v The Queen (1991) 172 CLR 378; R v McDonald (2015) 123 SASR 313; Kural v The Queen (1987) 162 CLR 502; Peacock v The King (1911) 13 CLR 619; R v Baden-Clay (2016) 258 CLR 308; R v Hallett [1969] SASR 141; R v Moffatt (2000) 112 A Crim R 201; R v PL (2009) 261 ALR 365; R v Gardiner [2015] SASCFC 107; R v Kageregere [2011] SASC 154; Arulthilakan v The Queen (2003) 203 ALR 259; R v Ford [2016] SASC 112; Wilson v The Queen (1992) 174 CLR 313; Burns v The Queen (2012) 246 CLR 334; Walters v The King [2024] SASCA 53; R v Brown (1986) 43 SASR 33; R v Warren (1996) 88 A Crim R 78; R v Palazoff (1986) 43 SASR 99; R v Smith (No 2) (1995) 64 SASR 1; R v Mitchell (No 6) [2021] SASC 20; R v Evans (No 1) [1976] VR 517; R v Mitchell [2015] VSC 24; Barca v The Queen (1975) 133 CLR 82; Dent v The King [2024] SASCA 12; Miller v Miller (2011) 242 CLR 446; White v Ridley (1978) 140 CLR 342; Tierney v The Queen [2016] NSWCCA 144, considered.

R v JPH
[2024] SASC 137
Criminal: Trial by Judge alone
STEIN J.
PART 1: Background
Brief summary of prosecution case
Brief summary of defence case
Trial by judge alone
PART 2: Legal directions
Burden of proof
Right to silence
Expert evidence
View
Exhibits and aide memoires
Discreditable conduct
Prior inconsistent statements
Admissions
Record of interview
Motive
Agreed facts
PART 3: Relevant legal principles in relation to charged offending
Joint criminal enterprise
Extended joint criminal enterprise
Common law murder
Intention
Causation
Murder and extended joint criminal enterprise

Constructive murder
Foundational offence
Constructive murder and joint criminal enterprise

Unlawful and dangerous act manslaughter
Manslaughter and extended joint criminal enterprise

Duress
Circumstantial evidence
PART 4: Evidence
Mr Gjabri’s background and residence at Carousel Street
Evening of 8 October
CD
Commotion in Gilbert Street
Descriptions of men

Investigations in Gilbert Street
Discovery of Mr Gjabri and searches of Carousel Street
CCTV footage
Summary of CCTV footage compilation

Events after 9 October and evidence of alleged admissions
CD
TL
JL

Intercepted telephone calls
Phone call between Mr H and Mr Carver on 18 October 2018
Phone call between Mr H and Mrs H on 11 November 2018

Video files from Mr H’s phone
Arrests and searches
Media reports
Record of interview
Crime scene investigation
DNA evidence
Drug evidence
Other agreed facts
Assessment of witnesses
Assessment of record of interview
PART 5: Causation
Dr Cheryl Charlwood
Findings on causation
PART 6: Other Findings
General
Events of 8 and 9 October 2018
What was reported in the media?
What admissions did Mr H make?
Conversations with witnesses and record of interview
Video recordings
Telephone calls with Mr Carver and Ms H

Awareness of occupant
Awareness of the bat
PART 7: Conclusions on charged offending
Common law murder
Did Mr H enter into an agreement with the other men to steal cannabis?
What was the scope of the joint enterprise?
Did Mr H participate in the joint enterprise?
Did Mr H foresee that another party to the agreement would commit murder?
Defence of duress
Conclusion on common law murder

Constructive murder
Elements of foundational offence of aggravated robbery
Joint criminal enterprise – agreement and participation
Was there an intentional act of violence by a co-accused in the course of the foundational offence?
Did the joint enterprise agreement extend to the possible commission of an intentional act of violence of the same general nature as that inflicted on Mr Gjabri?
Conclusion on constructive murder

Manslaughter
Conclusion on manslaughter

PART 1: Background

In October 2018, five men broke into a house being used for the hydroponic cultivation of cannabis. The men stole cannabis from the house. Mr Urim Gjabri was present in the house and was assaulted during the break in. Mr Gjabri later died of head injuries.
Mr H is charged with the murder of Mr Gjabri pursuant to s 11 of the Criminal Law Consolidation Act1935 (SA).
For the reasons which follow, I find Mr H not guilty of the murder of Mr Gjabri but guilty of manslaughter.
Brief summary of prosecution case
On the prosecution case, Mr H together with Mr Benjamin John Mitchell, Mr Alfred Claude Rigney, Mr Matt Bernard Tenhoopen, and Mr Aaron Donald Carver, took part in the theft of cannabis from a grow house in Carousel Street, Para Vista (“the Carousel Street house”) on 8 and 9 October 2018. The men were captured on poor quality closed-circuit television (“CCTV”) at locations in the vicinity of Carousel Street arriving in two vehicles, parking in a side street and then walking to the house. The CCTV footage shows one person carrying some kind of object which on the prosecution case was consistent with a bat or pole.
Prosecution alleged the men forced entry into the house, assaulted Mr Gjabri, stripped mature cannabis plants, loaded black plastic bags filled with cannabis into Mr Gjabri’s car and then drove Mr Gjabri’s vehicle, and the two vehicles in which they had arrived, to Gilbert Street, Ingle Farm. The men transferred the cannabis from Mr Gjabri’s vehicle to one of the other vehicles, disturbing the residents of a house in Gilbert Street (“the Gilbert Street house”) in the process, before driving away, leaving Mr Gjabri’s vehicle at that location. On the prosecution case, the men then drove back to Murray Bridge where they divided the cannabis between themselves.
The residents of the Gilbert Street house called the police. Police enquiries later led to the discovery of Mr Gjabri’s body a few days later. A pathologist, Dr Cheryl Charlwood, formed the view that the cause of death was blunt force head injuries by one or more impacts.
The prosecution case against Mr H depended in part on alleged admissions made by Mr H to his then partner, CD, to family friends, TL and JL, in videos filmed on his mobile phone and in Mr H’s record of interview with police.
On the prosecution case, among other matters, Mr H is alleged to have admitted to taking part in the “drug rip”[1] for money, to having assaulted Mr Gjabri and to having had a role as a lookout.
[1] A colloquialism meaning to steal drugs.
The Crown contended that Mr H is guilty of murder through two pathways. The first pathway is common law murder on the basis of extended joint criminal enterprise. Mr H was said to have been a party to an agreement to commit aggravated robbery with any necessary violence and that he foresaw that one of his co-venturers might inflict violence on the occupant of the premises with the intention of causing death or serious bodily harm. The second pathway prosecution relied upon is constructive murder. This pathway was based on Mr H allegedly being party to an agreement to commit aggravated robbery, which is a major indictable offence punishable by more than 10 years’ imprisonment, which agreement included the use of any necessary force, and while acting in furtherance of the aggravated robbery one of the parties to the joint criminal enterprise committed an intentional act of violence which caused Mr Gjabri’s death. Prosecution relied on the theft of cannabis with the use of force as constituting robbery, aggravated by reason that it was committed in company.
In his record of interview, Mr H raised a defence of duress. Prosecution accepted that duress can be a defence to murder and the alternative of manslaughter on the pathways relied on in this case, but contended the evidence excluded, as a reasonable possibility, that Mr H acted under duress. The Crown’s position included submissions that Mr H was already participating in the enterprise at the time of the alleged duress and his claim of duress was not credible. However, in the event the claim was credible, Mr H failed to avail himself of an opportunity to escape.
Brief summary of defence case
Mr H contended he was not made aware of the plan to rob the house in Carousel Street until they were at the house. Once he was aware, he objected to participating, but was forced to take part by threats made by another of the participants including to “cave his head in” if he did not comply. On his defence, he kept a lookout under duress while other participants inflicted the blows on Mr Gjabri.
Trial by judge alone
Mr H elected for a trial by judge alone pursuant to s 7(1) of the Juries Act 1927 (SA).
PART 2: Legal directions
Burden of proof
Mr H is presumed to be innocent. The prosecution bears the onus of proving each element of the offence beyond reasonable doubt. A reasonable doubt is one I am prepared to entertain after hearing all of the evidence. Mr H does not have to prove anything.
Right to silence
Mr H was not obliged to give evidence and he chose not to give evidence. I must not draw any inference adverse to him or the case his counsel put forward or speculate on the reasons why he did not give evidence.
Expert evidence
Prosecution relied on expert witnesses in relation to topics of cause of death, DNA evidence, and cannabis production and sale.
I must consider the evidence of the expert witnesses together with the evidence of all other witnesses. I must determine what of their evidence I accept, what weight is to be attached to that evidence and any inferences that arise from the evidence. In assessing the evidence of an expert witness, relevant factors for my consideration include the qualifications of the witness, the extent to which their evidence accords with other evidence, and their impartiality. I am entitled to accept or reject their evidence in whole or in part in the same manner as any other witness.
View
After the prosecution opening, a view was conducted of the Carousel Street house and the location of the Gilbert Street house. The view did not constitute evidence and was conducted for the purpose only of assisting me to understand the evidence subsequently called.
Exhibits and aide memoires
The exhibits included CCTV footage, videos from a mobile phone and a police record of interview. I was provided with transcripts.[2] Those transcripts are not evidence and were provided only as aide memoires for the purposes of assisting me. I have relied only upon my assessment of the exhibits.
[2] Marked for identification (“MFI”) P9, MFI P19, MFI P23A, MFI P23B.
Discreditable conduct
Mr H referred to purchasing cannabis from Mr Carver in his record of interview with police. CD gave evidence that Mr H used to buy cannabis from Mr Carver and went to do a “drug rip” on the night of 8 October. Evidence was also called of asserted admissions made by Mr H to TL and JL to the effect that he had previously engaged in “drug rips” to steal cannabis.
Evidence in relation to Mr H’s potential involvement in cannabis purchases from Mr Carver and previous “drug rips” was led for the specific purpose of explaining Mr H’s association with the other participants in the events of 8 and 9 October and to prove his participation in the joint criminal enterprise.
I direct myself that I may use the evidence only for those purposes. Such evidence of discreditable conduct may not be used by me to reason that Mr H is more likely to have committed the charged offence because he engaged in any of the discreditable conduct and I have not used any of the evidence for such impermissible purpose.
Prior inconsistent statements
Prior inconsistent statements are relevant only to assessing the credit of witnesses and cannot be used for testimonial purposes. Evidence of prior inconsistent statements made by witnesses was admitted in the form of agreed facts. I have taken into account the prior inconsistent statements in my assessment[3] of the credit of the witnesses which I address separately below. I have not used those statements for any other impermissible purpose.
[3] Exhibit D28.
Admissions
Prosecution relied upon alleged admissions made by Mr H to TL, JL, CD, in recordings and in his record of interview. I address the alleged admissions below. Only statements by Mr H are capable of proof as admissions. Any questions or assertions by others may give context to statements made by Mr H but cannot constitute admissions.
Record of interview
Mr H took part in a record of interview with police.
Both the inculpatory and exculpatory aspects of the interview of Mr H are admissible in the case against him. I am entitled to accept some parts of what Mr H said and reject other parts. I must determine what weight I give to Mr H’s different statements in the record of interview. I am entitled to consider that the record of interview does not constitute sworn evidence in determining what weight to place upon the statements in it.
The fact Mr H has given a version of events in his record of interview does not mean that he is required to prove his account. It remains for the prosecution to prove beyond reasonable doubt the case against Mr H.
Prosecution contended that Mr H lied, minimised or deceived in parts of the record of interview. The prosecution did not rely on consciousness of guilt reasoning and I do not use any part of the record of interview or any other evidence for such purpose.
If I conclude that Mr H lied in any part of the record of interview, I may consider that in determining to what extent I accept statements in the record of interview as credible and believable. I cannot use a conclusion that Mr H lied as evidence of his guilt.
If I do not accept Mr H’s denials or his version of events, I must put the record of interview aside and then continue to assess the evidence to determine whether the prosecution has proved the charge beyond reasonable doubt.[4]
[4] Da Silva v The Queen [2019] HCA 48; (2019) 268 CLR 57 at [12] (Kiefel CJ, Bell, Gageler and Gordon JJ).
Motive
Motive is not an element of the offence and the prosecution does not have to prove motive.[5] However, the absence of any motive is a circumstance that can favour an accused.[6] In this case the prosecution submitted that Mr H admitted to a financial motivation to take part in the joint enterprise to steal cannabis. This was not put in support of any motive to harm Mr Gjabri.
[5] De Gruchy v The Queen [2002] HCA 33; (2002) 211 CLR 85 at [32] (Gaudron, McHugh and Hayne JJ).
[6] De Gruchy v The Queen [2002] HCA 33; (2002) 211 CLR 85 at [28] (Gaudron, McHugh and Hayne JJ), quoting Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234 at 250 (Menzies J).
Agreed facts
Pursuant to the provisions of the Evidence Act 1929 (SA) (“Evidence Act”), the parties agreed a number of facts which are set out below in these reasons.[7]
PART 3: Relevant legal principles in relation to charged offending
[7] Exhibits P7, P26, P27 and D28.
Joint criminal enterprise
The prosecution relied upon the principles of joint criminal enterprise (in its case on constructive murder) and extended joint criminal enterprise (in its case on common law murder).
A joint criminal enterprise exists where two or more people enter into an agreement to carry out acts involving the commission of a crime. If the offence is committed while that agreement remains on foot, all those participating are guilty, regardless of the particular role each played.[8]
[8] McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108 at 114 (Brennan CJ, Deane, Dawson, Toohey and Gummow JJ); Mitchell v The King [2023] HCA 5; (2023) 276 CLR 299 at [13]-[14] (Kiefel CJ) and [54]-[55] (Gordon, Edelman and Steward JJ).
The elements of liability under the doctrine of joint criminal enterprise thus are:[9]
1.the accused entered into an agreement with one or more other people to commit the offence;
2.the accused participated in the joint agreement;
3.while the agreement was on foot, one or more of the parties to the agreement between them performed the acts necessary to commit the offence; and
4.the accused had the state of mind necessary to commit the charged offence.
[9] Likiardopoulos v The Queen [2012] HCA 37; (2012) 247 CLR 265 at [19] (French CJ); Miller v The Queen [2016] HCA 30; (2016) 259 CLR 380 at [4] (French CJ, Kiefel, Bell, Nettle and Gordon JJ).
It must be established that the accused was party to an agreement to engage in the conduct constituting the offence and that the accused participated in some way in the common purpose.
The agreement does not need to be express and may be inferred from conduct.[10] The relevant understanding or agreement can be formed immediately before the commission of the relevant acts.[11] The focus is on the acts or omissions the parties agreed upon rather than identifying the crime constituted by the acts.[12] Proof an accused was party to the agreement does not depend on proof the accused engaged in any particular conduct at the scene.[13] Conversely, proof the accused was present is not enough in itself to establish participation in the agreement.[14]
[10] Miller v The Queen [2016] HCA 30; (2016) 259 CLR 380 at [4] (French CJ, Kiefel, Bell, Nettle and Gordon JJ); McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108 at 114 (Brennan CJ, Deane, Dawson, Toohey and Gummow JJ); Mitchell v The King [2023] HCA 5; (2023) 276 CLR 299 at [14] (Kiefel CJ) and [54] (Gordon, Edelman and Steward JJ).
[11] R v Polanski [2005] SASC 361 at [24] (Nyland J).
[12] Gillard v The Queen [2003] HCA 64; (2003) 219 CLR 1 at [124] (Hayne J); Mitchell v The King [2023] HCA 5; (2023) 276 CLR 299 at [54] (Gordon, Edelman and Steward JJ).
[13] Huynh v The Queen [2013] HCA 6; (2013) 295 ALR 624 at [36]-[39] (French CJ, Crennan, Kiefel, Bell and Gageler JJ).
[14] R v Sumner [2013] SASCFC 82; (2013) 117 SASR 271 at [56] (Gray and Sulan JJ, Blue J agreeing); citing, with approval, Huynh v The Queen (2013) 87 ALJR 434 at [36]-[39] (French CJ, Crennan, Kiefel, Bell and Gageler JJ).

Each person is also guilty of any other crime committed by a participant in the venture which is within the scope of the agreement.[15] An incidental offence will fall within the scope of the agreement if the parties contemplated the commission of the incidental offence as a possible incident of the execution of their agreement.[16]
[15] McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108 at 114 (Brennan CJ, Deane, Dawson, Toohey and Gummow JJ); Miller v The Queen [2016] HCA 30; (2016) 259 CLR 380 at [4] (French CJ, Kiefel, Bell, Nettle and Gordon JJ).
[16] Miller v The Queen [2016] HCA 30; (2016) 259 CLR 380 at [4] (French CJ, Kiefel, Bell, Nettle and Gordon JJ); Mitchell v The King [2023] HCA 5; (2023) 276 CLR 299 at [13]-[14] (Kiefel CJ) and [54] (Gordon, Edelman and Steward JJ).
If one of the parties to the agreement goes beyond what has been tacitly agreed as part of the enterprise, the other party will not be liable for the unauthorised act.[17]
[17] Mitchell v The King [2023] HCA 5; (2023) 276 CLR 299 at [54] (Gordon, Edelman and Steward JJ).
Extended joint criminal enterprise
A party to a joint criminal enterprise may foresee the possibility of an incidental offence, but not agree to, the commission of an incidental offence in the course of carrying out an agreement. If the party nevertheless continues to participate in the enterprise with that awareness, the party is liable for the incidental offence.[18]
[18] Miller v The Queen [2016] HCA 30; (2016) 259 CLR 380 at [4] and [51] (French CJ, Kiefel, Bell, Nettle and Gordon JJ, Keane J agreeing at [131], Gageler J dissenting at [129]); Mitchell v The King [2023] HCA 5; (2023) 276 CLR 299 at [15] (Kiefel CJ), [33] (Gageler, Gleeson and Jagot JJ) and [56] (Gordon, Edelman and Steward JJ).
Extended joint criminal enterprise thus applies where:
1.the accused agreed with another person to commit an offence (the foundational offence);
2.the accused participated in that agreement;
3.in the course of carrying out the agreed foundational offence, another party to the agreement committed the charged offence;
4.the accused foresaw the possibility that another party to the agreement might commit the charged offence.
The prosecution must prove that the accused foresaw that the incidental crime might be committed and cannot rely upon the common purpose to establish that state of mind.[19]
[19] McAuliffe v The Queen [1995] HCA 37 at [12]; (1995) 183 CLR 108 at 114 (Brennan CJ, Deane, Dawson, Toohey and Gummow JJ).
The principle of extended joint criminal enterprise does not apply to constructive murder.[20]
[20] Mitchell v The King [2023] HCA 5; (2023) 276 CLR 299 at [30] (Kiefel CJ), [34] and [47] (Gageler, Gleeson and Jagot JJ) and [104] (Gordon, Edelman and Steward JJ).
Common law murder
A person commits murder if that person causes the death of another person, deliberately and unlawfully, while intending to cause death or grievous bodily harm.
In order for an accused to be found guilty of the charge, the prosecution must prove beyond reasonable doubt each of the following elements of the offence:
1.the act(s) of the accused were a substantial cause of the death of the victim;
2.the act(s) of the accused were voluntary and deliberate, that is, they were the result of the exercise of the accused’s will;
3.the act(s) of the accused which caused death were done with the intention to kill or cause grievous bodily harm to the victim. The intention must exist at the time of the act(s) which caused the death of the victim;
4.no lawful excuse or defence applied to the killing.
Intention
The requisite intention for the offence of murder is the intention to kill or cause grievous bodily harm. Grievous bodily harm means really serious bodily harm.[21]
[21] R v Perks (1986) 41 SASR 335 at 337 (King CJ), 345-348 (White J; O’Loughlin J agreeing).
In order to prove specific intention, the prosecution must adduce evidence of circumstances sufficient to allow the inference beyond reasonable doubt that the accused had the requisite intention at the time of performing the acts which were the substantial cause of the victim’s death.[22]
[22] Ryan v The Queen [1967] HCA 2; (1967) 121 CLR 205 at 217-218 (Barwick CJ); Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378 at 393 (Mason CJ), 401 (Brennan J), 414 (Deane and Dawson JJ), 426 (Toohey and Gaudron JJ), 458 (McHugh J); R v McDonald [2015] SASCFC 99; (2015) 123 SASR 313 at [29] (Kourakis CJ).
The state of mind of a person is a fact which can be inferred from what a person does and says.[23] An inference must rest on something more than mere conjecture to be reasonable.[24]
Causation
[23] Kural v The Queen [1987] HCA 16; (1987) 162 CLR 502 at 504 (Mason CJ, Deane and
[24] Peacock v The King [1911] HCA 66; (1911) 13 CLR 619 at 661 (O’Connor J); R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 at [47] (French CJ, Kiefel, Bell, Keane and Gordon JJ).
The prosecution must prove that the acts relied on as causing death were a substantial or significant cause of death.[25] The question of causation is to be determined as a matter of common sense, recognising that the purpose of the inquiry is to attribute legal responsibility in a criminal action.[26] The act of the accused need not be the sole, immediate or principal cause but must have significantly contributed to, or been an operating and substantial cause of, the death.[27] The act must have had more than a coincidental or insignificant effect.[28] It is not necessary for the prosecution to identify a precise act which causes death in order to prove murder including in cases in which the fatal blow cannot be identified.[29]
Murder and extended joint criminal enterprise
[25] Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378 at 398 (Brennan J), 411 (Deane and Dawson JJ), 423 (Toohey and Gaudron JJ).
[26] Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378 at 387 (Mason CJ), 411-2 (Deane and Dawson JJ), 423 (Toohey and Gaudron JJ), 441 (McHugh J), citing Campbell v The Queen [1981] WAR 286 at 290 (Burt CJ).
[27] Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378 at 398 (Brennan J), 411-2 (Deane and Dawson JJ), 423 (Toohey and Gaudron JJ) and 444 (McHugh J); R v Hallett [1969] SASR 141 at 149-50 (Bray CJ, Bright and Mitchell JJ); R v Moffatt [2000] NSWCCA 174; (2000) 112 A Crim R 201 at [66]-[71] (Woods CJ at CL, Foster AJA and Adams J agreeing); R v Ford [2016] SASC 112 at [7] (Blue J).
[28] R v Moffatt [2000] NSWCCA 174; (2000) 112 A Crim R 201 at [71] (Woods CJ at CL, Foster AJA and Adams J agreeing).
[29] R v PL [2009] NSWCCA 256; (2009) 261 ALR 365 at [46]-[50] (Spigelman CJ, McClellan CJ at CL and R A Hulme J agreeing); R v Moffatt [2000] NSWCCA 174; (2000) 112 A Crim R 201 at [26], [61], [66] (Woods CJ at CL, Foster AJA and Adams J agreeing). See, eg, R v Gardiner [2015] SASCFC 107, in which cause of death was blunt head, chest and abdominal trauma but death from a particular cause could not be ascribed.
An accused is guilty of murder where the accused is a party to an agreement to commit a crime and foresees that death or grievous bodily harm might be occasioned by a co-venturer acting with the intention to cause death or grievous bodily harm and the party, with that awareness, continues to participate in the agreed criminal enterprise.[30]
[30] Miller v The Queen [2016] HCA 30; (2016) 259 CLR 380 at [1] (French CJ, Kiefel, Bell, Nettle and Gordon JJ); Mitchell v The King [2023] HCA 5; (2023) 276 CLR 299 at [58] and [106] (Gordon, Edelman and Steward JJ).
Constructive murder
Section 12A of the Criminal Law Consolidation Act 1936 (SA) provides:
A person who commits an intentional act of violence while acting in the course or furtherance of a major indictable offence punishable by imprisonment for ten years or more (other than abortion), and thus causes the death of another, is guilty of murder.
The elements of constructive murder are thus:
1.an intentional act of violence;
2.the act causes the death of the deceased;
3.the act was committed while in the course or furtherance of a major indictable offence punishable by imprisonment for ten years or more.
Violence means uncontrolled force which carries a real, not remote, risk of personal harm.[31] Whether an act is an act of violence is a question of fact.[32]
[31] R v Kageregere [2011] SASC 154 at [141] (Kourakis J).
[32] Arulthilakan v The Queen [2003] HCA 74; (2003) 203 ALR 259 at [23] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ).
Causing the death of another by committing an intentional act of violence in the course of a major indictable offence constitutes constructive murder even if the person performing the act does not intend to kill or cause grievous bodily harm.[33]
Foundational offence
[33] Arulthilakan v The Queen [2003] HCA 74; (2003) 203 ALR 259 at [28] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ); Mitchell v The King [2023] HCA 5; (2023) 276 CLR 299 at [5] (Kiefel CJ), [44] (Gageler, Gleeson and Jagot JJ) and [63] (Gordon, Edelman and Steward JJ).
The foundational offence upon which the prosecution relied was aggravated robbery.
The offence of robbery consists of three elements:
1.the accused commits theft;
2.the accused uses force or threatens to use force against another in order to commit the theft or to escape from the scene of the offence;
3.the force or threat was used at the time of, or immediately before or after, the theft.
If two of more people commit robbery in company, each is guilty of aggravated robbery.[34]
[34] Criminal Law Consolidation Act 1935 (SA), s 137(2).
Aggravated robbery is a major indictable offence punishable by imprisonment for 10 years.[35]
Constructive murder and joint criminal enterprise
[35] Criminal Law Consolidation Act 1935 (SA), s 12A.
The principle of joint criminal enterprise applies to constructive murder[36] and thus the act of violence referred to in s 12A need not be an act performed by the accused.[37] However, the intention referred to in the phrase “intentional act of violence” is the intention of the accused, that is, the accused intended to commit the act of violence or agreed (contingently, reluctantly, or otherwise) to the commission of the act of violence whether or not they were the primary offender.[38]
[36] Arulthilakan v The Queen [2003] HCA 74; (2003) 203 ALR 259 at [23] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ).
[37] Mitchell v The King [2023] HCA 5; (2023) 276 CLR 299 at [19] (Kiefel CJ), [40] and [44] (Gageler, Gleeson and Jagot JJ), [67] and [75] (Gordon, Edelman and Steward JJ), citing Arulthilakan v The Queen [2003] HCA 74; (2003) 203 ALR 259.
[38] Mitchell v The King [2023] HCA 5; (2023) 276 CLR 299 at [40] and [44] (Gageler, Gleeson and Jagot JJ), [67] and [75] Gordon, Edelman and Steward JJ), citing Arulthilakan v The Queen [2003] HCA 74; (2003) 203 ALR 259.
Where an accused is alleged to be the primary offender, the trier of fact must be satisfied beyond reasonable doubt that the accused, while acting in the course or furtherance of committing the major indictable offence, caused the death of the victim by an intentional act of violence.[39]
[39] Mitchell v The King [2023] HCA 5; (2023) 276 CLR 299 at [108] (Gordon, Edelman and Steward JJ; Gageler, Gleeson and Jagot agreeing at [48]).
Where the accused is alleged to have been a party to an agreement to commit the major indictable offence, but not as the primary offender, the prosecution must prove beyond reasonable doubt that the accused was a party to an agreement to commit that major indictable offence and the agreement included the possible commission of an intentional act of violence of the same general nature as that which caused the death.[40]
[40] Mitchell v The King [2023] HCA 5; (2023) 276 CLR 299 at [108] (Gordon, Edelman and Steward JJ; Gageler, Gleeson and Jagot agreeing at [48]).
Unlawful and dangerous act manslaughter
The elements of unlawful and dangerous act manslaughter are:[41]
1.an act(s) of the accused caused the death of the deceased;
2.the act(s) were voluntary, that is, deliberate;
3.the act(s) were unlawful;
4.the act(s) were dangerous, that is, a reasonable person in the position of the accused would have realised that his or her actions would expose the deceased to an appreciable risk of serious injury.
[41] R v Ford [2016] SASC 112 at [10] (Blue J).
The test for dangerousness is whether a reasonable person in the position of the accused would have realised that he or she was subjecting the victim to an appreciable risk of serious injury.[42]
[42] Wilson v The Queen [1992] HCA 31; (1992) 174 CLR 313 at 332-3 (Mason CJ, Toohey, Gaudron and McHugh JJ), as applied in Burns v The Queen [2012] HCA 35; (2012) 246 CLR 334 at [7]-[8] (French CJ) and [75] (Gummow, Hayne, Crennan, Kiefel and Bell JJ). See also, Walters v The King at [2024] SASCA 53 at [16] (Kourakis CJ, Lovell JA and Kimber AJA).
An act causes death if it is a significant or substantial cause of death.[43]
[43] Arulthilakan v The Queen [2003] HCA 74; (2003) 203 ALR 259 at [80] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ), as applied in Walters v The King at [2024] SASCA 53 at [17] (Kourakis CJ, Lovell JA and Kimber AJA).
The test is an objective one, assessed by reference to a reasonable hypothetical person in the position of the accused. It does not require that a reasonable person would have realised that death or even grievous bodily harm would result. It is a lower threshold, that is, that a reasonable person would have realised that the blows would expose the victim to an appreciable risk of serious injury.[44]
Manslaughter and extended joint criminal enterprise
[44] Wilson v The Queen [1992] HCA 31; (1992) 174 CLR 313 at 332-3 (Mason CJ, Toohey, Gaudron and McHugh JJ), 335-6 (Brennan, Deane and Dawson JJ).
If a participant to a joint criminal enterprise foresees the possibility the primary offender may cause grievous bodily harm or death to another but does not foresee the possibility that the primary offender would do so with murderous intention, under the principles of extended joint criminal enterprise the accused can only be convicted of manslaughter.[45]
[45] Mitchell v The King [2023] HCA 5; (2023) 276 CLR 299 at [60] (Gordon, Edelman and Steward JJ).
Duress
Mr H raised a defence of duress in his record of interview.
The onus falls on the prosecution to prove beyond reasonable doubt that there is no reasonable possibility Mr H acted under duress.[46]
[46] R v Brown (1986) 43 SASR 33 at 36 (King CJ), as applied in R v Palazoff (1986) 43 SASR 99 at 106-7 (Cox J, Zelling A-CJ and O’Laughlin J agreeing).
The defence of duress contains four elements:[47]
1.the accused must have committed the alleged offending when his or her will was overborn by threats of harm that would be completed unless the accused performed the required act;
2.the accused did not have any reasonable opportunity to escape the effect of the threat;
3.the accused did not voluntarily expose himself or herself to the threats;
4.the threats were such that a person of ordinary firmness of mind and will might have yielded to the threat in the same way.
[47] R v Brown (1986) 43 SASR 33 at 37-9, quoting R v Williamson [1972] 2 NSWLR 281 at 300 (Lee J). See also, R v Warren (1996) 185 LSJS 461; (1996) 88 A Crim R 78 at 81 (Doyle CJ, Cox and Debelle JJ agreeing).
The threat of harm must be a threat of death or serious bodily violence. A threat of future harm is sufficient provided the threat is still overpowering the accused’s will at the time of the alleged offence.[48]
[48] R v Brown (1986) 43 SASR 33 at 37-39 (King CJ), as applied in R v Warren (1996) 185 LSJS 461; (1996) 88 A Crim R 78 at 81 (Doyle CJ, Cox and Debelle JJ agreeing) and R v Palazoff (1986) 43 SASR 99 at 109 (Cox J, Zelling A-CJ and O’Loughlin JJ agreeing).
If the accused failed to take an opportunity that was reasonably open to escape from the threat, duress is not available. Whether an opportunity is reasonable is a question of fact.[49]
[49] R v Brown (1986) 43 SASR 33 at 36-7 (King CJ), quoting R v Hudson [1971] 2 QB 202 at 207 (Parker LJ for the Court). See also, R v Palazoff (1986) 43 SASR 99 at 110 (Cox J).
Duress is not available as a defence to murder as a principal offender.[50]The prosecution accepted that duress is available as a defence to a charge of murder founded on principles of joint enterprise, to a charge of constructive murder and to the alternative charge of manslaughter. In R v Mitchell,[51] Lovell J (as his Honour then was) concluded that the defence of duress is available to an accused charged with murder pursuant to s 12A of the Criminal Law Consolidation Act 1936 (SA).[52] Duress is available as a defence to manslaughter.[53]
[50] R v Brown (1986) 43 SASR 33 at 53-6 (Zelling J, King CJ agreeing at 36-7), citing DPP for Northern Ireland v Lynch [1975] AC 653 at 677 (Lord Morris), 685 (Lord Wilberforce) and 715-6 (Lord Edmund-Davies); R v Brown [1968] SASR 467 at 499 (Bray CJ). See also, R v Smith (No 2) (1995) 64 SASR 1 at 34 (Mullighan J, Cox and Olsson JJ agreeing).
[51] R v Mitchell (No 6) [2021] SASC 20.
[52] R v Mitchell (No 6) [2021] SASC 20 at [24]-[25] (Lovell J).
[53] R v Evans (No 1) [1976] VR 517 at 522 (Lush J); R v Mitchell [2015] VSC 24 at [40] (Croucher J).
Circumstantial evidence
When the case against an accused is based substantially upon circumstantial evidence, the trier of fact cannot return a verdict of guilty unless the circumstances are inconsistent with any reasonable hypothesis other than the guilt of the accused.[54] It is necessary not only that the accused’s guilt should be a rational inference but that it should be “the only rationale inference that the circumstances would enable [the fact finder] to draw…”.[55]
[54] Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82 at 104 (Gibbs, Stephen and Mason JJ), citing Peacock v The King [1911] HCA 66; (1911) 13 CLR 619 at 634 (Griffith CJ).
[55] Plomp v The Queen [1964] HCA 44; (1963) 110 CLR 234 at 252 (Menzies J).
The force of circumstantial evidence lies in the combined strength of different items of evidence which together become increasingly persuasive.[56]
[56] Dent v The King [2024] SASCA 12 at [34] (Livesey P and Lovell JA, Nicholson AJA agreeing).
An inference must be based on more than mere conjecture to be reasonable.[57] The trier of fact should not engage in tortuous reasoning or stretch credulity to explain each individual circumstance as being consistent with innocence.[58]
[57] R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 at [47] (French CJ, Kiefel, Bell, Keane and Gordon JJ); Dent v The King [2024] SASCA 12 at [38] (Livesey P and Lovell JA; Nicholson AJA agreeing).
[58] Dent v The King [2024] SASCA 12 at [38] (Livesey P and Lovell JA, Nicholson AJA agreeing).
In considering a circumstantial evidence case, the evidence is not to be considered piecemeal. There may be evidence which, considered in isolation, is consistent with an inference of innocence. However, all of the circumstances established by the evidence must be considered and weighed in determining whether there is reasonably open on the evidence an inference which is consistent with innocence.[59] Resolution of the case depends upon assessment of all the evidence which includes any inferences, explanations and submissions put forward on behalf of the accused.[60]
[59] R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 at [47] (French CJ, Kiefel, Bell, Keane and Gordon JJ); Dent v The King [2024] SASCA 12 at [39] (Livesey P and Lovell JA; Nicholson AJA agreeing).
[60] Dent v The King [2024] SASCA 12 at [41] (Livesey P and Lovell JA; Nicholson AJA agreeing).
Mr H is not to be found guilty of murder unless the circumstances, as established by all of the evidence, exclude any reasonable explanation consistent with innocence. If on all of the evidence there remains any rational inference consistent with Mr H’s innocence, he must be acquitted.

I must first consider the evidence and decide which facts I accept are established. Having done so, I must consider what inferences can be drawn from those established facts.
PART 4: Evidence
I turn now to address the evidence in the trial.
Mr Gjabri’s background and residence at Carousel Street
Mr Dritan Boba and Mr Ejup Hoxha gave uncontested evidence that Mr Gjabri, Mr Boba and Mr Hoxha were in immigration detention together and the men later lived in the same residential complex. After moving out of this complex, Mr Gjabri and Mr Boba shared a house for a period of time until Mr Gjabri later moved out. Mr Boba gave evidence that he sold Mr Gjabri a Mazda 2 after he had moved out. He identified the vehicle found by police[61] at Gilbert Street as the car he had sold to Mr Gjabri.
[61] Exhibit P5 – Photographs 170.
Mr Boba said Mr Gjabri worked as a tiler and he understood he worked to support his family in Albania. He described Mr Gjabri as a skinny man with a broken leg, that he was physically very weak and walked with a limp. Mr Boba did not think Mr Gjabri was the kind of person who would have posed a physical challenge to anyone and said that he was quiet, calm and not the type to become aggressive. Mr Boba expected that if Mr Gjabri were confronted, he would back away rather than fight back. Mr Hoxha said Mr Gjabri was skinny, not physically strong and not confrontational. Mr Hoxha had never seen him act aggressively or violently towards anyone. He said Mr Gjabri was weak and short and had a problem with his leg which caused him to limp.
Mr Hoxha gave evidence that, at some stage, he and Mr Gjabri were both looking for a house to rent. Someone had provided details of a house to Mr Hoxha who passed those details on to Mr Gjabri because the house location was unsuitable for Mr Hoxha. Mr Hoxha helped move Mr Gjabri into the house in Carousel Street about six months before he died and he had on occasion visited Mr Gjabri in Carousel Street.
In October 2018, Mr Trajan Kuzmanov owned the property at Carousel Street, Para Vista. Mr Kuzmanov gave evidence that while he was fixing up the house, a man came from the street and asked whether the house was available for rent. Mr Kuzmanov was not able to describe the man but said he always wore a cap, did not talk much and spoke “rough” English. Mr Kuzmanov agreed to rent the house to the man on the basis that he would look after it. He signed a rental agreement dated 4 April 2018 with the man which named the renter as Mr Andrea Papa and included a term that the tenant would be responsible for upkeep of the interior and exterior of the premises.[62]
[62] Exhibit P12.
Mr Kuzmanov said that everything was alright in the house when he rented it to the man, including the door handle between the laundry and the kitchen.[63] He thought the first rent payment made by the man was for a couple of months but he was not sure. He said there were no complaints from the man about the house while he was renting it and the neighbours never complained. He was not aware anything illegal was happening at the house. Mr Kuzmanov recalled being shown a photo of Mr Gjabri by police but said he could not say 100 percent if he recognised him as the man who rented the house because he always wore a cap and he never properly saw his face.
[63] Exhibit P5 – Photographs 152 and 153.
In cross-examination, Mr Kuzmanov agreed the tenant did not complain about a broken window.
Evening of 8 October
A “drug rip” took place late at night on 8 October and in the early hours of 9 October 2018 at the Carousel Street house.
Mr H described his movements in his record of interview which I return to summarise later in these reasons.
There was some support for aspects of his account in the evidence of CD.
CD
CD was previously in a relationship with Mr H. Their son, Nate, was born February 2017. In late March 2017, CD moved to Murray Bridge and, on 8 October 2018, she was living in Hill Street, Murray Bridge with Mr H and Nate.
In October 2018, Mr H told CD that he was putting up security cameras for Mr Carver. Mr H used to buy cannabis from Mr Carver and would also help Mr Carver around his house. On 8 October 2018, Mr H left the house around lunchtime to go to Mr Carver’s house to put up the security cameras. Mr H arrived home late, after dinner. CD had messaged him to say she was making dinner. Mr H rang her at some time between 9:00 and 10:00 pm to tell her he was walking home. He was complaining that Mr Carver had not paid him what he was owed for putting up the cameras. CD heard a car pull up and then heard Mr H shortly after. She understood he was no longer walking and was in a car. CD thought Mr H arrived home close to 10:00 pm.
Mr H told CD that he had put the cameras up for Mr Carver, Mr Carver was going to give him some money and he would be back soon. He said they might be going to town. Mr H told CD that Mr Carver was outside. Mr H got his dinner and left in a car with Mr Carver. CD saw Mr Carver outside in a blue WRX. Mr Carver was in the passenger front seat and Mr H got into the back seat. CD did not see Mr H take anything else with him when he left, apart from his dinner. CD thought the car left the house between 10:00 and 10:30 pm.
Mr H messaged CD to say he was going to town but did not elaborate whether that meant Murray Bridge or Adelaide. He messaged later at a time she did not know to tell her he was in Adelaide but did not say anything more.
The following facts were agreed:[64]
Phone activities between 8 October 2018 and 9 October 2018
40.At 10.21pm on 8 October 2018 the accused made a phone call to [CD].
41.At 2.08.52am on 9 October 2018 the accused sent a text message to [CD]’s phone number which read ‘Ill be home soon’.
Commotion in Gilbert Street
[64] Exhibit P26.
Extracts from transcript of a previous trial in March 2021 containing the evidence of Mr Kobi Passmore, Ms Kirsty Folwell and Mr Codey Folwell-Passmore were tendered by consent.[65]
[65] Exhibit P25.
In October 2018, Mr Passmore, Ms Folwell and Mr Folwell-Passmore were living in Gilbert Street, Ingle Farm. Mr Folwell-Passmore gave evidence that shortly after midnight, he was in his room when he heard rummaging from the front of the house and heard a voice that sounded Aboriginal telling other people to hurry up. He said he called out to his dad saying it sounded like someone was at the skip bin. Mr Passmore and Ms Folwell gave evidence that shortly after midnight, their son came into their bedroom and said he had heard a noise and it sounded like someone was at the skip bin which was in front of the garage door.
Mr Passmore and Mr Folwell-Passmore went to the front door. Mr Passmore turned on the front spotlight. He said that when the spotlight was on, it illuminated the whole front yard and he could see the houses across the road to some degree. Mr Folwell-Passmore said that he heard the same voice he had heard previously telling the other men to hurry.
Mr Passmore described seeing two vehicles. One was parked across the driveway, being a small grey Mazda with no one in it, and the other was parked in front, which looked like a black Commodore which had the boot propped open. Both cars were facing the same direction and neither were running nor had their headlights on. Mr Passmore saw about four men and noticed a very strong smell of cannabis. Two men were moving between the grey Mazda and the Commodore carrying large black plastic bags containing what he believed to be cannabis. They were going back and forward quickly and speaking very fast. Mr Passmore said, “what the fuck are you doing on my property?”. One of the males he had seen moving between the two cars looked at him and said “… been fucking raided” and then “…come and help us… I’ll give you some”. Mr Passmore said “no … just go away please”. The second male was continuing to move the cannabis out of the grey Mazda and putting it into the vehicle in front. Mr Passmore gave descriptions of the two men including that they were wearing black gloves. Another man Mr Passmore had not seen previously came from the left of the driveway holding a very bright LED torch. He held the torch above his head and shone it in Mr Passmore’s direction from about two metres away. Mr Passmore was standing behind his vehicle on the driveway and his son was about half a metre to a metre to his right. Mr Passmore then saw another vehicle parked in front of the black vehicle facing in the same direction as the other two vehicles which he thought was a white VZ or VY Commodore. The vehicle was not running, and the lights were off. The man with the torch had approached him from the direction of the third vehicle and told him to “get the fuck back inside” in a very aggressive and assertive tone of voice. Mr Passmore responded that he was not going to go back inside and that it was his house. The man with the torch told him to “stop looking at the numberplate…”.
Mr Folwell-Passmore described seeing a torch pointed at his father’s face by the male who was telling the other people to hurry up. He said the torch was alternating between on and off Mr Passmore’s face. He saw a man carrying a black garbage bag with green material in it come up to his father and offer him a bag of the material to which Mr Passmore said “no, fuck off”. He heard his father ask his mother to call the police and she went back inside. Mr Folwell-Passmore recalled seeing three cars lined up. The car at the back, a small grey vehicle, was at the end of their driveway facing up the hill and had no one inside. The car in front of the Mazda was a white VZ Commodore and the car in front was a black vehicle, he thought was also a VZ. He said the cars were not running and did not have lights on. The boot of the middle vehicle was open. There were black garbage bags being moved by the men from the grey vehicle to the white vehicle. Cannabis was scattered over the road and on the footpath and he could smell cannabis. He described all three men as wearing black latex gloves.
Ms Folwell said that a couple of minutes after Mr Passmore had left, her son came back into the room and told her to come outside. Ms Folwell walked out and could see a little grey car directly in front of the driveway. In front of it was a black car and in front was a white Commodore; all three cars were facing the same direction. She described two men scrambling between the black car and the little grey car and it looked like they were carrying black bags. She thought there were at least three or four men in total. Ms Folwell said that one of the men told them to get the fuck back inside while he held a torch and shone it directly in their faces, and that another said something like their house just got raided by the police. She then went inside to call the police.
Mr Passmore described the two younger males as “doing the best they could” to close the boot of the middle vehicle. Once they finished, they pushed the grey Mazda which rolled past the driveway and onto the footpath. Mr Passmore thought the man holding the torch had pushed the Mazda.
Mr Folwell-Passmore said there were so many bags in the boot of the car that the men were using their body weight to jump on the boot to try and close it. The man who was holding the torch said that they had just been raided. One of the men jumping on the boot got into the car. The male who had been shining the torch went over to the grey Mazda, lent through the window, put the car into neutral, put the handbrake down and pushed the car which then rolled down the street. It rolled a good couple of metres and came to rest half on the road and half on the verge on their side of the road. The man told his father not to take his number plate because they had his and the man then got in the white vehicle and the two vehicles left and turned right at the T-junction at the end of the street.
Ms Folwell said that when she returned from calling the police, only the grey car was left and it was in a different position, mounted on the verge at the next-door neighbour’s house facing the same direction as before. Ms Folwell said she saw marijuana leaves scattered everywhere, a glove and a caulking gun.
In cross-examination, Mr Passmore said the man holding the torch was stockier and had the aggressive voice. Mr Passmore said he saw the man he described as Aboriginal try to sit on the boot of the Commodore with another man trying and shut it. After this, the Mazda rolled down the street and stopped half on the kerb in front of the house next door. He agreed that before the Mazda rolled away, he saw a man walk back to the Mazda and reach inside to do something but he could not see what he did. He then saw the man he described as Aboriginal get back inside the middle, darker car and drive off, turning into Foster Row. Mr Passmore said that when he first went outside, one of the men was saying “hurry up, hurry the fuck up” but did not know which one was saying that.
In cross-examination, Ms Folwell said the man who shone the torch in their faces and told them to get inside was quite aggressive.
In cross-examination, Mr Folwell-Passmore said he could not actually see what the man did when he leaned into the small car, but he was fumbling around in the car and then it rolled so he presumed he had put the handbrake down. He was sure it was the Aboriginal man with the torch.
Descriptions of men
Mr Bengel was a Detective Brevet Sergeant from 1984 before retiring in October 2023. He was one of the investigating officers in the investigation of the death of Mr Gjabri.
Detective Bengel gave descriptions of each of Mr Carver, Mr Mitchell, Mr Rigney and Mr Tenhoopen. He described Mr Rigney as an Aboriginal man.
Investigations in Gilbert Street
A map of Gilbert Street with notations of items found by police on the street[66] shows the grey Mazda was found on the same side of the road as the house then occupied by the Folwell Passmore family, somewhat across the verge. A plastic garbage bag with cannabis was located on the street in front of their house as was a caulking gun and plastic glove. The glove was on the road and the caulking gun was on the verge.
[66] Exhibit P24.
The following facts were agreed in relation to the police search of Gilbert Street:[67]
[67] Exhibit P26 (some address details have been redacted).
Police search of Gilbert Street, Ingle Farm
7.Constable Duane Woolman and Probationary Constable Kate Wilson were tasked at about 1.29am on 9 October 2018 to attend XX Gilbert Street, Ingle Farm. The officers arrived at about 1.35am that same morning and spoke to Kobi Passmore, his wife Kirsty Folwell and their son Codey Folwell-Passmore.
8.Probationary Constable Wilson observed a black garbage bag in the middle of Gilbert Street, Ingle Farm. The bag was torn open. There was plant material that was apparently cannabis on the road and up the driveway of XX Gilbert Street, Ingle Farm. Probationary Constable Wilson also saw a red caulking gun and a single black disposable glove on the road.
9.Police noted the presence of a dark grey Mazda with South Australian plates (XLU 131) at the front of XX Gilbert Street, Ingle Farm. The car’s right hand wheels were on the road and its left hand wheels on the grass verge. The doors were closed. Police searched the car. There was a strong smell of cannabis inside and plant material that was apparently cannabis. Police also found the following objects inside the car:
i. a Mazda key in the right rear passenger footwell;
ii. an Albanian passport in the name of Urim Gjabri, date of birth 25 May 1972 (passport number BI1968552).
10.Probationary Constable Wilson made a short video recording of Gilbert Street, Ingle Farm commencing at about 1.47am on 9 October 2018. The footage depicts the location of the garbage bag, red caulking gun, cannabis, glove and Mazda.
11.Constable Woolman collected cannabis from the road, the grass verge on the eastern side of Gilbert Street and from inside the Mazda. He booked the cannabis into police property. Constable Woolman also collected the garbage bag, black disposable glove and caulking gun. However, he disposed of the garbage bag and glove at about 3am on 9 October 2018 believing they were rubbish. He booked the caulking gun into police property for collection by its true owner.
12.At about 1.50am Constable Woolman requested that a patrol attend 10 Ross Road, Hectorville and make enquiries with Urim Gjabri.
13.At about 2.26am Constable Woolman requested a tow truck to tow the Mazda to the Ottoway Police Exhibit Property facility. The tow truck arrived within about 25 minutes and towed the Mazda to Ottoway.
14.Constable Woolman prepared a map depicting the location of various items he located on Gilbert Street, Ingle Farm on 9 October 2018.
Discovery of Mr Gjabri and searches of Carousel Street
Mr Boba said that at about 2:00 or 3:00 am, two police officers came to his address and asked him about the owner of a grey Mazda and Mr Boba told the police he sold it. Neither he nor the police mentioned Mr Gjabri’s name. He said the police were only there for a short time, perhaps five minutes.
After the police visited, Mr Boba spoke to Mr Hoxha to tell him the police were asking about the vehicle he had sold to Mr Gjabri and that maybe Mr Gjabri had been in a car accident.
Mr Boba and Mr Hoxha checked hospitals to see if Mr Gjabri had been involved in a car accident but were told no one by Mr Gjabri’s name had come in. Mr Hoxha said they drove to the Carousel Street house but did not see the car at the house so they did not stop but instead visited further hospitals. Mr Hoxha thought he drove three or four times past the Carousel Street house without stopping. As he could not see the Mazda, he thought Mr Gjabri was not there.
Mr Boba and Mr Hoxha met perhaps three or four days after the police had come to see Mr Boba. They had tried to call Mr Gjabri and were worried they could not find him. Mr Hoxha received a call from Mr Gjabri’s brother asking him if he had seen Mr Gjabri because his brother could not get hold of him. Mr Hoxha then went back to Carousel Street, went in through the back door of the house and found Mr Gjabri dead. Mr Hoxha did not touch Mr Gjabri, only called out to him. He did not go to the police until the following day as he said he was in shock.
The following morning, Mr Hoxha called his cousin and told him what had happened and asked him to go with him to report what had happened. Mr Hoxha called Mr Boba and said he wanted Mr Boba to meet with Mr Hoxha and his cousin to go to the police station because Mr Hoxha went to the Carousel Street house to look for Mr Gjabri and found him dead. Mr Boba then went to the police station in Norwood with Mr Hoxha and Mr Hoxha’s cousin and they talked to police officers.
The following facts were agreed in relation to the initial attendance by police at Carousel Street, the seizure of a cigarette butt and searches of the house at Carousel Street and the surrounding area:[68]
[68] Exhibit P26 (some address details have been redacted).
Initial police attendance at Carousel Street, Para Vista
15.Detective Brevet Sergeant Nicola Seneca and Brevet Sergeant Jasmin McDonald travelled with Ejup Hoxha to XX Carousel Street, Para Vista on 12 October 2018. They arrived at about 1.25pm. Detective Seneca, Brevet Sergeant McDonald and Ejup Hoxha approached the rear of the house. Detective Seneca noted the presence of plant material that was apparently cannabis on the concrete driveway and rear pavement of the house. The two officers entered the house through the rear door and discovered the deceased lying on the floor of the lounge room. Neither officer touched the deceased. Detective Seneca also noted that three bedrooms in the house had been converted for the hydroponic cultivation of cannabis.
16.Detective Seneca and Brevet Sergeant McDonald reported their findings to the police Communication Centre. Police cordons were established at the two nearest junctions on Carousel Street, Para Vista.
17.The police later seized Ejup Hoxha’s clothing and his Honda motor vehicle. Mr Hoxha was in no way involved in the events that led to the deceased’s death.
Seizure of cigarette butt on 12 October 2018
18.On 12 October 2018 Senior Constable Jordan Crettenden searched the grass verge directly opposite 7 Janet Street, Para Vista on the north eastern corner of the intersection of Janet Street and Maurine Terrace. Senior Constable Crettenden located a single cigarette butt on the grass verge which he securely packaged and handed to Brevet Sergeant Robyn Buller (PPMS 19/B07497-2).
Police searches of XX Carousel Street, Para Vista
19.At about 9.25am on 13 October 2018, police conducted a search of XX Carousel Street, Para Vista. The search ended at about 12.10pm that day. During the search, officers located the following exhibits:
i.     a black latex glove located on top of a brick in bedroom three (19/B07436-50);
ii.    a box of Thickster powder-free examination gloves located in a kitchen cupboard (19/B07436-51);
iii.     a single blue glove located in a kitchen cupboard (19/B07436-52);
iv.     two-thirds of a red/brown brick located in the doorway of bedroom one (19/B07436-54);
v.    half a red brick located in the hallway between bedrooms one and two (19/B07436-55);
vi.     half a brown brick located inside bedroom two (19/B07436-56);
vii.    half a brown brick located on the grass in the rear yard adjacent to the bathroom area (19/B07436-57);
viii.   one-third of a red brick located in the centre of the front yard (19/B07436-58).
20.A black latex glove located in the front entrance hallway of XX Carousel Street, Para Vista (depicted in Exhibit P4, photographs 122 and 123) was seized and entered into the police property management system as 19/B07497-1. A popule swab of the exterior surface of the glove was taken (PPMS 19/B07497-5) and mislabelled ‘XX Lorraine Street, Para Vista’.
21.All exhibits seized from XX Carousel Street, Para Vista were secured in a locked room at the Major Crime Investigation Branch by South Australia Police before being transferred to the Southern Property Section on 22 October 2018.
Police search of building site on Lorraine Avenue, Para Victa on 13 October 2018
22. Between 12.10pm and 12.35pm on 13 October 2018, Brevet Sergeant Corey Pearson, acting under the authority of a general search warrant, entered a building site on Lorraine Avenue, Para Vista. The building site was on the southern side of Lorraine Avenue, directly opposite the junction between Lorraine Avenue and Don Street, Para Vista. There was a partially constructed two-storey red brick building on the site. Next to the partially constructed building were piles of bricks. Brevet Sergeant Peterson seized a brick from the top of the fifth pole of bricks on the western side of the partially constructed building (19/B07497-3).
CCTV footage

Senior Constable Timothy Holmes gave evidence of assisting the investigation by collecting CCTV, creating a compilation of relevant CCTV footage and performing other work relating to electronic evidence. Senior Constable Holmes collected CCTV from a number of locations around the house in Carousel Street, Para Vista and reviewed all of the CCTV footage. CCTV was obtained from 7 Janet Street, 16 Lorraine Avenue, 33 Lorraine Avenue and 6 Carousel Street.
Senior Constable Holmes compiled relevant portions of CCTV footage by reviewing footage several hours before and after midnight on 9 October 2018. There was minimal vehicular traffic. Irrelevant vehicles were not included in the compilation. Senior Constable Holmes prepared a map of the locations of the various cameras and the field of view of each camera showing the outer extremities and approximate depth of the field of vision.[69] Senior Constable Holmes clipped relevant pieces of footage where activity occurred and put them together in chronological order using video editing software. Each CCTV unit, apart from one, came with a time and date comparison to actual time. Senior Constable Holmes inserted a timestamp reflective of the accurate time. There were no other relevant events omitted from the CCTV compilation.
[69] Exhibit P8.
The following facts were agreed in relation to the CCTV:[70]
[70] Exhibit P7.
CCTV
1.On 13 October 2018 police seized a CCTV hard drive from 16 Lorraine Avenue, Para Vista (19/B07436-46). As at 8 October 2018 the house at 16 Lorraine Avenue, Para Vista had a CCTV camera at the front of the property facing south. The timestamp on the CCTV footage was approximately one hour behind the actual time.
2.On 12 October 2018 police seized a CCTV hard drive from 7 Janet Street, Para Vista (19/B07436-34). As at 8 October 2018 the house at 7 Janet Street, Para Vista had a CCTV camera located on the eastern face of the property in an elevanted position facing east. The timestamp on the CCTV footage was approximately 6 minutes ahead of the actual time.
3.On 12 October 2018 police seized a CCTV hard drive from 6 Carousel Street, Para Vista (19/B07436-43). As at 8 October 2018 the house at 6 Carousel Street, Para Vista had a CCTV camera at the front of the property facing south west. The timestamp on the CCTV footage was approximately one hour and one second behind the actual time.
4.On 27 October 2018 the owner of 33 Lorraine Avenue, Para Vista gave police an electronic copy of a selection of CCTV captured by two cameras situated at the front of his house. As at 8 October 2018 the house at 33 Lorraine Avenue, Para Vista had two CCTV cameras at the front of the house, one facing north west and one facing north east. The timestamp on the CCTV was approximately nine minutes and 20 seconds ahead of the actual time.
5.The CCTV systems at 18 Lorraine Avenue, Para Vista was not operational as at the time of a police enquiry on 13 October 2018.
6.An electronic evidence specialist attached to the Electronic Crime Section of the South Australia Police created forensic duplicates of the electronic evidence on the police property management system (PPMS) receipt 19/B07436, items 34, 43 and 46. Forensic duplicates of electronic evidence are copies created without corrupting or altering the original from which they are taken.
Summary of CCTV footage compilation
Carousel Street runs in an approximately north-south direction. It terminates in a T-junction on its northern end at Lorraine Avenue and at its southern end at Heather Drive. The Carousel Street house is located on the western side of Carousel Street near Heather Drive.
The camera at 16 Lorraine Avenue faces south, capturing part of Lorraine Avenue including the intersection of Lorraine Avenue and Janet Street.
The camera at 7 Janet Street faces in a north easterly direction, capturing part of Janet Street and its intersection with Lorraine Avenue.
The cameras at 33 Lorraine Avenue face south capturing parts of Lorraine Avenue and its intersection with Carousel Street.
The camera at 6 Carousel Street faces in a south westerly direction, capturing part of Carousel Street and the intersection between Carousel Street and Maurine Terrace.
A map depicting the location of the CCTV cameras and their approximate coverage is shown below to assist in understanding the description of the movements of vehicles and people seen in the CCTV footage:[71]
[71] Exhibit P8.
The CCTV footage commences at 11:13 pm.
I summarise below key aspects of the CCTV footage.
A pale coloured vehicle drives past 16 Lorraine Avenue at 11:13 pm, turns into Janet Street, drives down Janet Street and turns left into Maurine Terrace. A pale car turns right into Carousel Street and drives in a southerly direction down Carousel Street towards the Carousel Street house.[72] At about 11:14 pm, a car drives in a northerly direction up Carousel Street turning left into Maurine Terrace.[73] The headlights of a vehicle can then be seen driving down Maurine Terrace and turning left (presumably into Claudia Street).[74]
[72] Exhibit P11 – CCTV Compilation from 00:27.
[73] Exhibit P11 – CCTV Compilation from 02:39.
[74] Exhibit P11 – CCTV Compilation from 03:00.
At 11:35 pm, a vehicle is visible driving west down Maurine Terrace towards Janet Street and then turning left (presumably into Claudia Street).[75]
[75] Exhibit P11 – CCTV Compilation from 04:09.
At 11:47 pm a pedestrian holding a small source of light walks slowly on the footpath on Janet Street, turning down Maurine Terrace and continuing to walk in an easterly direction towards Carousel Street.[76] Shortly thereafter, a second figure is visible on Maurine Terrace near the kerb. A third figure then appears, crossing Maurine Terrace at the intersection with Janet Street, walking in a northerly direction. The figures on Maurine Terrace also cross Maurine Terrace, walking to Janet Street and then up Janet Street. A total of five figures are visible. The people walk one behind each other. When the first person crosses the intersection, they are carrying a small source of light which then moves downwards to the ground, remaining visible as a small light source on the verge while the figures continue walking. The last person in the line of figures is also carrying a light source in his hand which swings as they walk. At 11:48 pm, there is a brief flash of light consistent with a pedestrian carrying a source of light walking up Janet Street towards Lorraine Avenue.[77]
[76] Exhibit P11 – CCTV Compilation from 04:47.
[77] Exhibit P11 – CCTV Compilation at 06:26.
From about 12:05 am, people are visible walking from the east to the west along Lorraine Avenue.[78] Also at about 12:05 am, a person walks up and then back on the pavement in front of 16 Lorraine Avenue.[79] At about 12:06 am, four figures are visible walking in front of 16 Lorraine Avenue.[80] The first two figures walk alongside each other and two others follow in single file shortly behind, walking in a westerly direction along Lorraine Avenue. The person walking in single file behind the first pair of figures is carrying an object in his right hand, pointing down towards the ground, which swings as they walk. The object is long and appears to reach close to the ground.
[78] Exhibit P11 – CCTV Compilation from 07:07.
[79] Exhibit P11 – CCTV Compilation from 08:15.
[80] Exhibit P11 – CCTV Compilation from 08:47.
From about 12:07 am, figures are visible walking approximately in single file down Carousel Street in a southerly direction towards the Carousel Street house on the same side of the street as that house.[81] Five figures are faintly visible. One is carrying an object from which light emanates.
[81] Exhibit P11 – CCTV Compilation from 09:29.
At about 12:28 am, there is a flash of light emanating from the direction of the Carousel Street house.[82] The flash repeats several times over about several minutes. At 12:33 am, a moving streak of light appears and then disappears from view.[83] At 12:33 am, a bright flash of light consistent with car headlights appears and a car is then visible travelling quickly in a northerly direction along Carousel Street from the direction of the Carousel Street house, turning left into Maurine Terrace, travelling in a westerly direction towards Janet Street and then turning left into Claudia Street.[84] The car appears to stop a short distance from the intersection of Maurine Terrace and Claudia Street as lights, possibly the taillights of the vehicle, can be seen to stop moving. There is a short pause and another light is then visible, which appears to be headlights of a second vehicle turning on, with the vehicle then moving down Claudia Street in a northerly direction towards Maurine Terrace, turning around in a circle in Maurine Terrace and driving back into Claudia Street to drive in a southerly direction down Claudia Terrace.
[82] Exhibit P11 – CCTV Compilation from 10:59.
[83] Exhibit P11 – CCTV Compilation from 11:33.
[84] Exhibit P11 – CCTV Compilation from 12:10.
The following facts were agreed:[85]
[85] Exhibit P26 (some address details have been redacted).
Cars and car movements
32.The vehicle bearing the Victorian registration plate 1KE6EW (depicted in Exhibit P6, photographs 251 to 260) was linked to Aaron Carver.
33.Benjamin Mitchell was the registered owner of a blue Subaru WRX with the registration plate S802BXB between 11 August 2018 and 1 November 2018.
34.Alfred Rigney had possession of a white VY Holden Commodore with the registration plate WWR333 on 8 and 9 October 2018.
35.A car bearing the registration plate S802BXB was captured travelling through a Safe-T-Cam site on the South Eastern Expressway at Crafers at the following times on the following dates:
i.     at 11:02:17pm on 8 October 2018 travelling west towards Adelaide;
ii.    at 1:19:01am on 9 October 2018 travelling east towards Murray Bridge.
36.A car bearing the registration plate WWR333 was captured travelling through a Safe-T-Cam site on the South Eastern Expressway at Crafters at the following times on the following dates:
i.     at 1:40:16pm on 8 October 2018 travelling west towards Adelaide.
37.The point-to-point camera system on the South Eastern Freeway recorded vehicles bearing the following registration plates travelling east on the Freeway towards Murray Bridge at the following times:
i.     WWR333 on 9 October 2018 at 1:38:04am;
ii.    S802BXB on 9 October 2018 at 1:38:05am.
…
Movements between 8 October 2018 and 9 October 2018
48.Alfred Rigney:
i.     was in Murray Bridge between approximately 7.07am and 1.03pm on 8 October 2018 before travelling down the South Eastern Freeway towards Adelaide;
ii.    left the area of Prospect at 9.55pm on 8 October 2018 and arrived in the area of XX Carousel Street, Para Vista at 11.15pm.
49.Aaron Carver, Benjamin Mitchell, Matt Tenhoopen and the accused:
i.     left Murray Bridge together at approximately 10.30pm on 8 October 2018 in Benjamin Mitchell’s blue Subaru WRX (S802 BXB);
ii.    travelled down the South Eastern Freeway towards Adelaide;
iii.     arrived in the area of XX Carousel Street, Para Vista at approximately 11.33pm on 8 October 2018.
50.The five persons depicted in the CCTV compilation video (Exhibit P8) are Aaron Carver, Benjamin Mitchell, Alfred Rigney, Matt Tenhoopen and the accused.
51.Aaron Carver, Benjamin Mitchell, Alfred Rigney, Matt Tenhoopen and the accused arrived in Gilbert Street, Ingle Farm at approximately 12.36am on 9 October 2018 and left at approximately 12.46am in a white Holden Commodore (WWR 333) and a blue Subaru WRX (S802 BXB).
52.Aaron Carver, Benjamin Mitchell, Alfred Rigney, Matt Tenhoopen and the accused arrived at a petrol station in Norwood at approximately 1.06am on 9 October 2018 before travelling back up the Southern Eastern Freeway towards Murray Bridge, passing through the same point on the Freeway at Callington at 1.38am.
I address the inferences which can be drawn from the CCTV footage separately below.
Events after 9 October and evidence of alleged admissions
CD
I return to the evidence of CD, commencing with Mr H’s return to Murray Bridge on 9 October.
CD next saw Mr H after he returned from Adelaide in the early hours the next morning, possibly around sunrise or very early when he knocked on the front door. CD opened the door. Mr H looked very distraught, very upset, and very white. He said he was going to be sick and asked her to get some bags from outside and bring them into the house for him. CD asked him what was happening and why he was not well, and he replied saying he could not tell her. She brought inside two or three black garbage bags, about three quarters full of wet cannabis and whole cannabis plants. Mr H asked CD to put them in the spare room to start drying out the marijuana. Mr H had dried cannabis in the spare room previously in about September 2018.
CD said Mr H was distraught, not himself and vomited numerous times. Mr H did not tell her what had happened. When she went to sleep, Mr H was outside. The next day she asked Mr H what had happened because he was still not very well, but she could not remember what he said.
The following Sunday, CD went to Balaklava, returning on Wednesday of the next week. When she got home, Mr H was not there. She found out he had gone to TL’s house and CD went there with Nate on the Friday. When she got to TL’s house, Mr H was there with JL. TL came home later that afternoon from work. CD only stayed the one night. That Friday night, they got takeaway food for dinner and the mood in the house seemed okay. CD noted that Mr H was a bit upset and a little distraught.
That night on the television news they heard Mr Carver had been arrested and was being brought back from Queensland. CD was very shocked and surprised to hear the bulletin which she thought was on the six o’clock news. Mr H was sitting at the table eating dinner, he got up and walked outside. She followed and asked him whether he was involved and he nodded his head. Mr H was distraught. He was sick numerous times and he had seizures during the night.
CD left and went home to Murray Bridge with Nate the following day. She next saw Mr H that Sunday in Balaklava. They then went to Gawler and returned to Murray Bridge, travelling to Townsville about a week after they left TL’s house. CD thought they made the plan to go to Queensland while they were at their friend’s house in Murray Bridge. When they were travelling to Queensland, CD asked Mr H a few questions about what happened but Mr H did not say much.
When they were in Townsville, Mr H started to open up. Mr H told CD that he, Mr Carver and a couple of other guys were to go and do a “drug rip” at a property. His involvement was as payment for the work he did on the security cameras. The other men involved were named Ben, Matt, and Alfie. Mr H said there was a person in the house when they got there. CD believed that Mr H told her that it was himself and Mr Rigney, possibly with Mr Tenhoopen as well, that started to assault the man. CD said Mr H told her that either he or Mr Rigney had broken the man’s legs or a leg. Someone had kept telling them to keep hitting the man. Mr H had said he was not going to hit him anymore, he was going to stop and that the others needed to stop. CD believed Mr Carver told Mr H to go and be a lookout. She was not sure if it was at a window or a door, but he said something about going to be a lookout.
CD said she asked Mr H what had happened and over the course of a couple of days he would say one thing and then he would say another, so it was a little jumbled and a little confusing to follow. When asked whether she had put the story in chronological order and whether that was the order in which she received the information from Mr H, CD said she believed so, but he may have said one thing, said another, and then went back to saying it in the order it had happened.
Mr H told her a bat was used to assault the man and that the man was assaulted on his legs. He mentioned something about the man’s shoulder or that he hit him in the wrong spot and it was the shoulder or the collarbone. CD said she understood Mr H himself had hit the man in the wrong spot.
After Mr H went to be a lookout, he told CD that Mr Rigney and Mr Tenhoopen continued to assault the man. She said they continued to assault him with a bat but was not sure if anything else was used.
CD said Mr H told her that the man in the house was not well at all by the end of the “rip”.
CD said the men travelled in cars down to Adelaide, parked on a side street and walked to the house. Mr H told CD that on the walk he had lit up a cigarette and Mr Rigney had told him off for lighting it up.
They had the bags of marijuana and Mr H told CD something about transporting it in cars or changing over in cars and then they drove it back to Murray Bridge. He said that the marijuana came from a room in the house. When they got back to Murray Bridge, she thought they may have gone to Mr Carver’s house and then Mr H came home with the bags of marijuana.
Mr H said in the car on the way back he overheard Mr Mitchell and Mr Tenhoopen joking about breaking the man’s fingers.
CD thought Mr H told her that Mr Carver and Mr H went into the house through the front door.
CD said Mr H told her there was a fight between a few of the men, but he did not elaborate. He did not like Mr Rigney and he seemed like “not a nice guy”. Mr H said they identified the house, the group of guys had been walking around and smelling to see if they could find any marijuana. Mr H believed Mr Carver and Mr Rigney had done this before.
Mr H may have said a few more things on the way home but CD could not recall the details.
Mr H had a mobile phone which was registered in CD’s name. No-one else used it.
CD said she had purchased her sister’s car. She could not remember how much she agreed to pay for the car but thought it was a couple of grand, maybe $5,000. She believed she had paid that sum of money to her sister by September 2018, but could not recall how long it took to make the payments. Apart from the arrangement to buy her sister’s car, CD was not aware of any other financial transactions between Mr H and her family.
In cross-examination, CD agreed that the events were a long time ago and it is often hard to remember exactly what someone had told you.
CD agreed that Mr H, Nate and herself went to a friend’s place to stay for a while. This occurred because Mr H had mentioned there had been someone in the backyard and he was concerned it was either Mr Rigney or Mr Carver, which resulted in the move after they got back from Gawler.
The evening CD was at TL’s House, she, JL and TL were there sitting around the table eating their dinner. She vaguely remembered there was another man who was TL’s partner or previous partner. The news report came on about the incident while they were eating dinner. She thought it was the six o’clock news, but possibly it could have been the seven o’clock news, it was around dinnertime. After watching the news report, Mr H was very distressed, he went into the backyard and vomited a number of times and had seizures that night. CD said there were some discussions after the news report between the people in the house of their concerns about Mr H being at the house given what they had seen on the news. She did not recall any conversation about Mr H having his phone on him and what that might mean.
After she was told Mr H had had some seizures and been taken to hospital, CD arranged for her sister’s partner to collect Mr H and she saw Mr H on 21 October 2018 in Balaklava.
CD agreed that it was a stressful and traumatic time when Mr H started to give her information during the trip to Townsville. Mr H was stressed about what had happened. They had moved out of their home and in with friends because of safety concerns. She said she was upset and distressed. CD agreed that her conversation with Mr H did not have a clear chronology with a beginning, middle and end, and it was in bits and pieces over several conversations over several days. She said she had to try and piece it all together in her head and that it was a lot of information to process and the information was shocking and distressing. She struggled to take it all in. CD agreed a couple of weeks went by between her conversations with Mr H and speaking to police on 13 November 2018. When it was put to her that it was fair to say her memory of the conversations and exactly what she was told might have got a bit worse over those couple of weeks, she said “yes, it could have, yes”. It was put to CD that given the jumbled nature of the conversations and the time that had passed before speaking to the police, she could not really be sure whether Mr H was saying that he had hit the victim or whether he was describing someone else doing so. CD responded “no”. She said there was a possibility Mr H was talking about someone else.

I have accepted the admissions Mr H made in his conversations with CD, TL and JL to taking part in the “drug rip”. Those admissions do not indicate when Mr H became aware of the intended purpose. CD’s evidence about the circumstances in which Mr H left Murray Bridge and Mr H’s description in his record of interview of the Subaru pulling up and the occupants talking him into travelling to Adelaide is consistent with Mr H’s accounts to TL and JL of reluctance to be involved in the plan and hence knowledge of that plan prior to leaving Murray Bridge.
Even if Mr H was not aware of the intended purpose prior to leaving Murray Bridge, or on the way, in Mr H’s account to police in his record of interview he told police that Mr Rigney told him of the purpose. By the time Mr H was standing at the Carousel Street house prior to entry into the grow house, on his own version to police, Mr H was aware of the intention to steal cannabis from the address.
Based on the admissions I have accepted, including in Mr H’s record of interview, I find that Mr H entered into an agreement with Mr Carver and the other men to enter the Carousel Street house and steal cannabis. That agreement was in place prior to entry into the house and at the latest by the time the men were at the grow house.
What was the scope of the joint enterprise?
Prosecution contended that the scope of the plan was not simply to steal cannabis but to use violence as necessary. This contention was an important part of the prosecution’s case in establishing the scope of the agreement, including to commit the foundational offence of aggravated robbery, as opposed to a different or lesser offence such as aggravated criminal trespass, and to establish the foundation for Mr H’s asserted level of foresight. Prosecution based this contention on various matters including the theft from a grow house, the evidence said to point to knowledge there was an occupant who would need to be subdued and the fact five men participated. The prosecution’s position was that number of men were involved to ensure the occupant was subdued, with the consequence of reducing the individual profit of each and increasing the risk of detection. The prosecution relied on what was described as a thoroughly planned operation, the men taking a cricket bat (a weapon not required for theft nor used to enter the house), and bricks which the prosecution alleged were collected from the building site. The fact the men did not take means of transporting the cannabis from the house itself was said to support the inference the men intended to steal the occupant’s car, located in the driveway, and his keys, to move the cannabis. Further, reliance was placed on the entry through the front door to marshal the strength of their number to overwhelm the occupant with Mr Rigney forcing his way into the kitchen area when the men entered the house.
I do not accept the prosecution submission that this was a well planned operation, given the location and the disorganised manner in which the group stopped and transferred the cannabis from Mr Gjabri’s car to their cars in front of the Gilbert Street house in a residential area rather than a parking lot or other less obvious location and then stopped at a service station on the way back to Murray Bridge to get petrol, which demonstrates a lack of planning. However, this was also not a coincidental happening upon the grow house. There was sufficient organisation to result in five men in two separate cars driving from Murray Bridge to Adelaide, congregating in the vicinity of the property late at night and proceeding by foot with a bat and using force to enter with the intention of stealing cannabis from the grow house located at this particular property. The success of the plan would depend in part on preventing any person who may be present from impeding the plan. It is thus inherently implausible that no consideration was given to the potential for the grow house to be occupied and what steps would be taken if that eventuality transpired in order to ensure the operation was successful. I consider it fanciful that the agreement did not contemplate the potential need to take steps to prevent an occupant from impeding the planned theft. The carrying of the bat was consistent with such contemplation. I thus consider it inherently implausible that the agreement did not contemplate the need to use the bat to threaten or strike the occupant to subdue him or deter him from interfering in the operation to ensure the success of the plan. Put differently, I do not consider it a reasonable possibility that the plan to steal did not include the potential for threat or the application of force by way of assault against an occupant.
However, that conclusion does not necessarily entail an agreement the scope of which contemplated the use of any level of violence.
The CCTV supports the inference that Mr H must have been aware of the bat. On Mr H’s account, he knew Mr Rigney was carrying the bat when they entered the house. Mr H knew the grow house was occupied on his account. I have found that entry to the house was forced through the front door without the use of tools. A bat is not a tool ideally tailored to forcing entry through a door and is not capable of use in cutting cannabis. A bat could be used to break windows, but there were no broken windows and entry was achieved through the front door, supporting the inference the bat was not carried for the purpose of gaining entry through windows. A bat is, however, an item that could be used to threaten and to inflict injury to subdue. I infer the bat was carried with the intended purpose of use in deterring the occupant of the grow house from preventing the planned theft.
I do not draw any inferences from the location of half bricks in the house. There were bricks at the nearby building site and the location of the half bricks in the house was odd. However, it would be no more than conjecture to conclude the half bricks were from the building site and transported there by the men for the purpose of inflicting violence. The bricks were not seized or tested for DNA and the CCTV is not sufficiently clear to discern if any of the men were carrying a brick or bricks and there is no other evidence to support the inference that the half bricks or other bricks were brought to the house by the men or, if so, for what purpose.
At least by the time the men entered the grow house, they were in fact aware there was an occupant in the house. The combination of the vehicle parked in the driveway, yelling “police” on entry through the front door, Mr H’s account of Mr Rigney entering the house with the bat, moving to the kitchen door where Mr Gjabri was peering through the door, and Mr Rigney forcing his way through supports an inference that the men were aware of an occupant and took steps immediately to prevent the occupant impeding their entry and theft of the cannabis. Mr H acknowledged knowing there was an occupant and referred to his asserted understanding that they would punch the man in the nose and take his cannabis. This is consistent with Mr H knowing there was someone present and anticipating the use of some level of force to enable the successful theft of the cannabis.
I conclude that, at the time of entering the house, there was at least tacit agreement to the participants taking steps including threats and use of force to subdue the occupant while the theft took place to ensure a successful operation.
Mr H’s account to JL included reference to threats to hit Mr Gjabri if he moved and striking him when he did, consistent with such an agreement.
If the men had been armed with knives or guns, it would provide a basis for a stronger inference to the effect that any level of violence, including lethal force, was part of the agreement. However, entry into the house with a bat does not justify the same strength of inference. If the scope of the agreement had been to cause grievous bodily harm or kill the occupant, it would be expected that the participants would have entered the house armed with suitable weapons apt to achieve that eventuality, such as guns or bladed weapons.
There is insufficient evidence to satisfy me beyond reasonable doubt that the scope of the agreement must have included any form of violence including infliction of fatal force. However, taking into account the matters to which I have referred above, I am satisfied beyond reasonable doubt that the scope of the agreement included threats or the use of some force to assault and subdue the occupant to ensure the success of the plan to steal the cannabis.
Did Mr H participate in the joint enterprise?
Mr H submitted this case is analogous to Miller v Miller[112] in which the plaintiff and others were party to a joint enterprise to steal a car which was then driven negligently, resulting in the plaintiff suffering injuries. The High Court concluded the plaintiff had withdrawn from the joint enterprise by expressing her request several times for the driver to stop and let her out. Mr H’s position was that, viewed in a commonsense manner, it was not realistic for Mr H to do any more to withdraw from the joint agreement.
[112] Miller v Miller [2011] HCA 9; (2011) 242 CLR 446.
I do not accept Mr H’s submission that he was merely present in the house and did not participate in the joint criminal enterprise. I find Mr H participated in the joint enterprise by donning gloves, entering the house, acting as a lookout and taking some part in the assault of Mr Gjabri.
The extent of Mr H’s distress after returning home and thereafter as described by the witnesses is potentially explained by Mr H not having expected the significant level of violence which was inflicted on Mr Gjabri. If so, it is possible that Mr H did tell the other men to leave Mr Gjabri alone. However, on Mr H’s own account, he told Mr Tenhoopen to leave Mr Gjabri at the end of the assault and immediately prior to leaving the house. A mere change of heart is insufficient to achieve withdrawal from a joint criminal enterprise. Depending on the particular circumstances, a timely communication of the intention to withdraw is required, accompanied by action which can reasonably be taken to undo the effect of the previous participation.[113] By that time, if there was any change of heart by Mr H, it was too late to withdraw from the joint criminal enterprise. Further, on Mr H’s own account, Mr H did no more than say Mr Tenhoopen should leave Mr Gjabri immediately prior to Mr H leaving. Mr H did not recount doing anything to attempt to stop any of the men from assaulting Mr Gjabri, such as attempting to take away the bat, or to otherwise counteract the effect of Mr H’s prior participation such as anonymously contacting the police or ambulance service to check on Mr Gjabri, refusing to accept his share of the cannabis or to otherwise communicate withdrawal. Accordingly, I conclude Mr H did not relevantly withdraw from the joint enterprise.
[113] White v Ridley [1978] HCA 38 (1978) 140 CLR 342 at 349 (Gibbs J); Tierney v The Queen [2016] NSWCCA 144 at [17]-[22] (Adamson J; Basten JA, R A Hulme J agreeing).
Counsel for Mr H submitted that the prosecution failed to prove the joint criminal enterprise was ongoing in the circumstances of Mr H’s account of Mr Tenhoopen running out after Mr H or the accounts of Mr Tenhoopen going back into the house after Mr H had left. However, as set out above, Mr H referred to seeing blood “streaming” down Mr Gjabri’s face and blood “squirting” which is inconsistent with a reasonable possibility that Mr Gjabri was only struck to the head after Mr H left the house, irrespective of whether Mr Tenhoopen remained in the house or returned. Mr H referred to Mr Rigney inflicting the blows, holding the bat in both hands and also to hearing other blows being inflicted while he was on lookout. As set out above, the only wound or wounds capable of causing significant blood flow were to Mr Gjabri’s head. The other wounds were in the nature of bruising with an absence of significant laceration or incision.
In light of all the evidence, I consider it inherently implausible that Mr Gjabri was only struck to the head after Mr H left or that only one blow to Mr Gjabri’s head was a substantial cause of death and that blow was only delivered after Mr H left the house.
Further, on Mr H’s account, at the time Mr Tenhoopen remained in the house the other men were still engaged in putting the cannabis into Mr Gjabri’s car in the driveway prior to leaving the property.
Did Mr H foresee that another party to the agreement would commit murder?
In order for Mr H to be guilty of murder by extended joint criminal enterprise the prosecution must prove beyond reasonable doubt that Mr H foresaw that in carrying out the joint enterprise to break into the house and steal the cannabis, one or more of the participants might cause death or grievous bodily harm to the occupant accompanied with the intention of kill or cause grievous bodily harm.
As set out above, I have found that the act or acts of striking Mr Gjabri to his head was a substantial cause of Mr Gjabri’s death. I find the act or acts of striking Mr Gjabri’s head were voluntary and deliberate. I find that no lawful excuse applied. The evidence does not support a suggestion that Mr Gjabri fought with any of the men such that there could have been any provocation or need for self-defence. Mr H stated in the record of interview that Mr Gjabri said they could take the cannabis and he backed away. Further, Mr Hoxha’s evidence and Mr Boba’s evidence about Mr Gjabri’s personality and nature, including that he was not liable to be aggressive and Mr Gjabri’s build and height support the likelihood he would not have fought the intruders. There was also absence of evidence of injury to his knuckles, which would have been expected had he struck any of the intruders with his fists. I find that prosecution has excluded beyond reasonable doubt any lawful excuse of self-defence or provocation.
The prosecution relied on Arulthilakan v The Queen (“Arulthilakan”)[114] and contended the evidence proves Mr H had the requisite level of foresight based on the evidence of a need to commit violence, the weapons used and the way the men entered the house. Counsel for Mr H submitted this is a very different case from that of Arulthilakan. The presentation of a knife in a plan to attack a man and steal his phone was said to be quite distinct from entering a house in the presence of four other men, one of whom was carrying a bat, to accomplish a theft of cannabis.
[114] Arulthilakanv The Queen [2003] HCA 74; (2003) 203 ALR 259.
As set out above, on Mr H’s own account, Mr H knew the house was occupied and Mr Rigney was carrying the cricket bat when they entered the house. It is inherently implausible that Mr H could not have foreseen that the bat might be employed in some way to threaten or strike the occupant to deter him from interfering in the theft. However, a bat is capable of being used to threaten or to strike a person’s legs or arms or trunk sufficient to cause pain in order deter the person from attacking invaders or taking steps to thwart a theft without inflicting grievous bodily harm or death. A strike or strikes sufficient to cause grievous bodily harm or kill is not required to achieve that end, nor is that level of injury necessarily inherent in use of a weapon of that nature. Mr H’s reference to punching the man to steal a pound in the record of interview is consistent with foresight or an expectation of the possibility of some form of assault on the occupant of the grow house. However, the evidence as a whole is insufficient to satisfy me beyond reasonable doubt that Mr H foresaw that one of the men might attack the occupant causing grievous bodily harm or death with the requisite intention to inflict grievous bodily harm or to kill. There is no evidence the men entered with more than the cricket bat or with weapons of a kind intrinsically likely to cause serious injury or death, such as knives or guns. There was no use of such a weapon, despite the discovery of the knife with Mr Carver’s DNA. There is no evidence that other items found in the house, such as the hammer and crowbar depicted in the crime scene photographs, were employed as weapons against Mr Gjabri.
The extent of Mr H’s distress on his return to Murray Bridge and in Kadina is not consistent with that of a man who had taken part in an operation which ran as planned. At the time Mr H returned to Murray Bridge he did not know Mr Gjabri had died. While I cannot find precisely what caused his reaction on his return, it is reasonably possible that his significant distress was a result of the extent of the assault on Mr Gjabri and incompatible with Mr H possessing foresight that one of the group may assault Mr Gjabri with the intention of causing grievous bodily harm or death.
I therefore cannot find beyond reasonable doubt that in the course of participating in the joint enterprise, Mr H foresaw that one of his co-accused might cause grievous bodily harm or death with murderous intent.
Defence of duress
Mr H’s record of interview raises duress. The prosecution accepts that duress is capable of constituting a defence to murder (other than by the principal assailant) and to manslaughter.
The prosecution must prove beyond reasonable doubt that Mr H was not acting under duress at the time the offence was committed.
Prosecution must disprove that:
·Mr H committed his involvement in the aggravated robbery when his will was overborne by threats of harm that would be completed unless Mr H performed the required acts;
·Mr H did not have any reasonable opportunity to escape;
·Mr H did not voluntarily expose himself to the threats; and
·the threats were such that a person of ordinary firmness of mind and will might have yielded to the threat in the same way.
In his account in his record of interview, as set out above, Mr H stated that Mr Rigney told Mr H at the fence of the Carousel Street house that he would “cave his head in” if he did not get over the fence. If such a threat was made, it would constitute a threat of death or serious bodily violence. Mr H said when he told the others he was “not in for this”, Mr Rigney picked up the cricket bat and threatened him, saying “unless you want to cop this” while referring to Mr H being “in it”. Mr Rigney then shoved Mr H while holding his hoodie. Mr H also said that after the men left the house, he said he was not part of it and he would just walk home, but Mr Rigney threatened him again, instructing him to do as he was told. Mr H said Mr Rigney was a big man and he was “kind of scared of him”.
While Mr H referred to being threatened to do various actions during the record of interview, Mr H changed his position during the course of the interview on the topic of when he first saw the cricket bat. Ultimately, he could not say whether or not he first saw the bat at the fence or the corner of the house. Mr H’s account of Mr Rigney threatening to cave Mr H’s head in (to cross the fence) implicitly relied on the presence of a weapon, which account lacks veracity if Mr H first saw the bat at the corner of the house.
I have considered Mr H’s accounts of the conduct of Mr Carver and Mr Rigney and his interactions with them after returning to Murray Bridge to consider consistency with Mr H’s assertions that he was fearful of them and with his asserted reaction to threats he says were made to him at the house. Mr H referred in his record of interview to the incident when a torch was shone into N’s room and thereafter moving to the house of a friend. CD accepted in cross-examination that they had to move house and stay with a friend and Mr H was scared of Mr Carver and Mr Rigney. Mr H also referred to his fear of Mr Rigney in the call to his mother and in his record of interview. I accept that Mr H was genuinely fearful of Mr Rigney. His account in the record of interview was believable and consistent with his explanation to his mother in a conversation he did not know was being recorded.

In his record of interview, Mr H said he returned to Mr Carver’s house after the cannabis theft to install cameras. Mr H also referred to discussions with Mr Carver after seeing news reports, telling Mr Carver he would go to the police and Mr Carver threatening to stab him in the throat. This threat, if made, could in itself have provoked fear. On Mr H’s account, he also asked Mr Carver outright and in person about the suggestion that some men were after him. It was not apparent why he would expressly raise this suggested threat with Mr Carver if he was so scared of Mr Carver. Further, the intercepted telephone call with Mr Carver was not suggestive of fear. The fear expressed to police was not necessarily consistent with fear at the time of the robbery resulting from threats made by Mr Rigney for Mr H to engage in the robbery under duress.
Importantly, if Mr H was genuinely forced to take part in the break in, it would be expected that would have been a significant part of his accounts to each of CD, TL and JL. None of CD, TL and JL recounted any threats to force Mr H to take part and the video recordings on Mr H’s phone also do not provide any such explanation. Significantly, none of the witnesses referred to being told by Mr H that he was forced to take part in the robbery or any acts of violence. A detail such as a threat to cave in Mr H’s head is a detail the witnesses, particularly CD, are likely to have remembered.
Mr H prepared and recorded on his phone video clips for his children and CD. I accept that Mr H is deeply attached to his children and this is demonstrated in the recorded messages on his phone as well as the record of interview and the evidence of TL, JL and CD. If Mr H had in fact been forced to take part in the offending, that would likely have been an essential part of his explanation to each of CD, TL and JL and, in particular, to CD and his children.
In one video file, Mr H provided an account of doing what he did to provide for his family because they were struggling and in a bad place. That explanation is inconsistent with having acted under duress, being threatened and being forced to engage in the offending.
The recording of the telephone discussion between Mr H and his mother and the discussion with Mr Carver also are not consistent with Mr H having been forced into the incident against his will. While the content of the telephone discussion with Mr H’s mother was consistent with Mr H being afraid of Mr Rigney, Mr H did not refer to any threat or force used by Mr Rigney which would be expected if Mr H had indeed been forced into the events against his will. This call occurred on 11 November 2018, prior to Mr H’s arrest. Rather, in the telephone conversation with his mother and in conversation with JL, Mr H admitted he took part in the theft of cannabis for a financial motive, that is, to obtain funds to repay amounts he owed to CD’s sister. Such motivation is inconsistent with having acted under duress.
As set out above, it is inherently implausible that the men travelled to Adelaide for any innocent purpose and it is equally improbable the four other men would have included Mr H in the trip to Adelaide if he did not have a part to play in the intended theft of cannabis. I consider it intrinsically unlikely the men would have included Mr H in the trip with a view to forcing him into the venture against his will in circumstances which could have jeopardised the plan if Mr H had refused to engage or acted in a manner which may have put the venture at risk of discovery or failure.
If I had concluded that Mr H was threatened by Mr Rigney in the manner he recounted, I would have accepted the defence submission that he could not have reasonably escaped the threat of harm to him posed by Mr Rigney or the other men engaged in the joint enterprise. Mr H was in Adelaide, at night and without transport, in a location with which he was not familiar. I would therefore have found that Mr H did not have a reasonably open opportunity to escape.
I am satisfied beyond reasonable doubt from the evidence as a whole that the prosecution has disproved that Mr H acted under duress.
Conclusion on common law murder
I therefore conclude that the prosecution has failed to establish its case against Mr H for common law murder based on extended joint criminal enterprise.
Constructive murder
Prosecution’s case on constructive murder required Mr H being party to an agreement to commit a foundational offence being the major indictable offence of aggravated robbery including the use of any necessary force.
Elements of foundational offence of aggravated robbery
I turn first to whether the prosecution has established the foundational offence of aggravated robbery.
Based on the findings I have made, I find that Mr H and the other men entered the house in company with each other with one of the men armed with the bat with the intention of committing the offence of stealing cannabis and utilising the bat to threaten or subdue the occupant to facilitate the theft. The men stole cannabis, put it in bags into Mr Gjabri’s car and drove away from the house, ultimately returning with the cannabis to Murray Bridge where the cannabis was shared. I find that Mr Gjabri was assaulted during the course of the theft and that force was used against Mr Gjabri in order to commit the theft of the cannabis. I find that force was used against Mr Gjabri immediately prior to and at the time the cannabis plants were being cut and then removed from the property.
While I cannot find beyond reasonable doubt whether Mr H engaged in any of the specific activities associated with the breaking through the door, cutting the plants or removing them from the house, all of the elements of the offence were committed by the participants in the joint criminal enterprise. Accordingly, the fact Mr H may not have personally committed any of the relevant acts does not preclude a conclusion that Mr H participated in the foundational offence.
I conclude that Mr H participated in the foundational offence of robbery, aggravated by being in company of others, which is a major indictable offence with a maximum penalty of more than 10 years’ imprisonment.
Joint criminal enterprise – agreement and participation
As set out above, I have concluded Mr H was party to an agreement to commit the foundational offence of aggravated robbery and that he participated in the agreement. I have rejected the defence arguments concerning withdrawal and the defence of duress.
Was there an intentional act of violence by a co-accused in the course of the foundational offence?
The assault on Mr Gjabri was intentional. I have found that the intentional act or acts of striking Mr Gjabri in the head caused Mr Gjabri’s death. Those acts were committed in the course of the aggravated robbery. I find the infliction of the injuries were intentional acts of violence during the course of the aggravated robbery.
Did the joint enterprise agreement extend to the possible commission of an intentional act of violence of the same general nature as that inflicted on Mr Gjabri?
As set out above, in order for Mr H to be guilty of constructive murder on the basis of the principles of joint criminal enterprise, the scope of the joint criminal enterprise must have included the possible commission of an intentional act of violence of the same general nature as that which caused Mr Gjabri’s death.[115]
[115] Mitchell v The King [2023] HCA 5; (2023) 276 CLR 399 at [60] (Gordon, Edelman and Steward JJ).
While the issue of the scope of the agreement and questions of foresight are distinct, there is an overlap of the relevant evidence from which inferences may be drawn concerning each.
I am not satisfied beyond reasonable doubt that the possession of the bat prior to entry into the grow house is consistent only with an inference that the agreement included the possibility of violence of same general nature as caused the death. In this case, the violence that caused the death was striking the occupant of the grow house to the head with the weapon with sufficient force to fracture the skull resulting in the consequential brain injuries. The evidence is not sufficient to satisfy me beyond reasonable doubt that violence of the same general nature as caused death was within the scope of the joint enterprise. As discussed above, a bat is capable of being used to subdue without necessarily striking to the head or necessarily causing grievous bodily injury or death. The position may have been different if the men had entered the house with guns or knives.
Further, while Mr H’s reference to punching the man to steal a pound in the record of interview is consistent with foresight or expectation of the possibility of some form of assault on the occupant of the grow house, that is of a very different nature to the violence inflicted by striking Mr Gjabri to his head with the bat and with sufficient force to fracture his skull.
Conclusion on constructive murder
I therefore conclude that the prosecution has failed to establish its case against Mr H for constructive murder based on joint criminal enterprise.
Manslaughter
Given my conclusions above, the issue of manslaughter by unlawful and dangerous act on the principles of extended joint criminal enterprise arises for consideration.
A finding of manslaughter by unlawful and dangerous act requires proof that a reasonable person in the position of the assailant would have realised he was exposing Mr Gjabri to an appreciable risk of serious injury when striking Mr Gjabri to the head with the bat. This must be decided in a commonsense manner, taking into account the fact one is dealing with a criminal matter.
As set out above, I find that in the course of carrying out the agreement, a blow or blows were inflicted to Mr Gjabri’s head, those blows caused his death and those blows were voluntary and unlawful. I find that the blow or blows which caused the death of Mr Gjabri were dangerous. Striking a person on the head with a bat of itself poses an appreciable risk of serious injury. I find that a reasonable person in the position of someone striking Mr Gjabri to the head with a bat would have realised that his actions would expose Mr Gjabri to an appreciable risk of serious injury. I do not consider it a reasonable possibility that a reasonable person in the position of the assailant wielding the bat to strike Mr Gjabri on the head with sufficient force to inflict a bleeding wound and fracture the skull would not have realised those actions exposed Mr Gjabri to an appreciable risk of serious injury.
Mr H entered into and participated in a joint criminal enterprise to steal cannabis. The scope of the agreement included use of threats or force to subdue the occupant to ensure the success of the plan to steal the cannabis.
Without repeating all of the matters to which I have referred above, Mr H knew the members of the group were intending to steal cannabis from a grow house, knew there was a person in the grow house and knew that one of the men was armed with a bat. A bat is not a weapon necessarily likely to inflict injury sufficient to cause grievous bodily harm or death. Nevertheless, a bat by its very nature is of a size and weight sufficient to be inherently capable of causing serious injury if wielded against a person. I reject as fanciful the possibility that Mr H did not foresee the possibility the bat might be used to subdue the occupant causing serious injury to the occupant.
In the course of carrying out the joint enterprise, a party to the agreement inflicted voluntary, unlawful and dangerous blows to Mr Gjabri’s head in circumstances in which a reasonable person in the position of someone striking Mr Gjabri to the head with a bat would have realised that his actions would expose Mr Gjabri to an appreciable risk of serious injury.
I therefore conclude that Mr H is guilty of manslaughter under the principles of extended joint criminal enterprise.
Conclusion on manslaughter
I find Mr H guilty of manslaughter.

Dawson JJ).