R v Kai Edgar Yuen

[2013] ACTSC 106

R v KAI EDGAR YUEN [2013] ACTSC 106 (14 June 2013)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – plea of guilty to murder – disputed facts hearing – findings of fact – whether shooting was “accidental” – whether shooting involved an involuntary act – whether late plea of guilty showed remorse.

Crimes Act 1900 (ACT), s 12

Criminal Code Act 1899 (Qld)
Criminal Code Act 1924 (Tas)
Criminal Code Act Compilation Act 1913 (WA)

Kaporonovski v The Queen (1973) 133 CLR 209
Murray v The Queen (2002) 211 CLR 193
R v Katarzynski [2005] NSWCCA 72
R v Van Den Bemd (1994) 179 CLR 137
Ryan v The Queen (1967) 121 CLR 205

No. SCC 109 of 2011

Judge:              Penfold J
Supreme Court of the ACT

Date:               14 June 2013

IN THE SUPREME COURT OF THE       )
  )          No. SCC 109 of 2011
AUSTRALIAN CAPITAL TERRITORY    )

R  

v

KAI EDGAR YUEN

ORDER

Judge:  Penfold J
Date:  22 April 2013
Place:  Canberra

THE COURT FINDS THAT:

1. For the purpose of sentencing Kai Edgar Yuen for the murder of Brendan Scott Welsh, the facts are as set out in Appendix B of this judgment.

IN THE SUPREME COURT OF THE       )
  )          No. SCC 109 of 2011
AUSTRALIAN CAPITAL TERRITORY    )

R  

v

KAI EDGAR YUEN

REASONS FOR JUDGMENT

Judge:  Penfold J
Date:  14 June 2013
Place:  Canberra

Introduction

1. In August 2010, Kai Edgar Yuen was charged with the murder of Brendan Scott Welsh on 10 May 2010. His trial was set down to begin on 25 February 2013.

1. On 18 February 2013, Mr Yuen pleaded guilty to the murder.

1. The prosecution provided a draft Statement of Facts and sought the defence’s agreement to that statement.  The defence conceded most of the contents of the statement, but disputed certain parts of the statement, including the part which described the actual shooting of Mr Welsh by Mr Yuen. It was accordingly necessary to conduct a disputed facts hearing to determine the basis on which Mr Yuen was to be sentenced.

1. Twelve paragraphs of the original Statement of Facts were disputed by the defence. The table at Appendix A shows those disputed paragraphs in the left hand columns (the originally disputed parts of each paragraph are shown in italics) and, in the right hand column, the version of the paragraph as eventually agreed between the parties or as found by me. At Appendix B is the complete Statement of Facts incorporating the final versions of the disputed paragraphs. These are the facts on which Mr Yuen will be sentenced.

The disputed facts hearing

Oral evidence

1. At the hearing, I heard evidence from the following witnesses:

(a)Brendan Prebble and Joshua Stephen were friends of Mr Yuen and were with him on the night of the murder.

(b)Martin Kundert and Brooke Barnes were associates of Cameron Ashcroft, who was also with Mr Yuen on the night of the murder.  Mr Kundert and Ms Barnes spent a lot of time with Mr Ashcroft in the few weeks before the murder, and in the few days after the murder before Mr Ashcroft was arrested in connection with it.

(c)Stephanie Turner was the partner of Mr Welsh at the time of his death.

(d)Scott Gielissen was a friend of Mr Welsh’s and also knew Mr Yuen and several of his friends.

(e)Joseph Thailer was the President of the Majura Park Gun Club, and acted as an instructor there.

(f)Forensic Member Christiann Pieterse was a ballistics expert, and Constable Adam Rhynehart was the informant in the matter.

(g)Kai Yuen also gave evidence.

Exhibits

1. I also received exhibits as follows:

Prosecution exhibits

A.	Map of Canberra showing locations of interest
B.	DVD of walk through with Brendan Prebble
C.	Transcript of interview with Brendan Prebble (18 August 2010)
D.	DVD of walk through with Joshua Robert Stephen
D.1	CD attachment to Exhibit D
E.	Transcript of interview with Joshua Robert Stephen (19 August 2010)
F.	Photograph of two guns
G.	Bundle of AFP photographs (selection of images from Kai Yuen’s mobile)
H.	Face mask
I.	AFP book of photographs (examination at Dennison Street, Deakin, 10 May 2010)
J.	AFP book of photographs (examination at incident scene: Hughes Part 1, 10 May 2010)
K.	Sketch plan of Hughes shopping centre precinct
L.	AFP photographs 73 and 97 (suppressed)
M.	Two photographs from Mr Christiann Pieterse’s statement (showing shotgun extracted from drain and a reproduction of the photograph at Exhibit F)
N.	Gun
O.	Statement of Facts material – agreed and not agreed
P.	Collection of 15 photographs showing Hughes shopping centre car park and loading dock
Q.	Attachment A to the statement of  Scott Raven
R.	Photographs of 6 Lowerson Place, Gowrie (12 May 2010)
S.	Transcripts of listening device and telephone intercept material (incidents 18, 19, 20, 22 and 23) plus audio CD

Defence exhibits

1.     Transcript of conversation between Stephen Stubbs and Kai Yuen (8 August 2010)

The disputed material and the findings

1. As noted, 12 paragraphs of the draft Statement of Facts were disputed.  Set out below are the disputed paragraphs, my findings on the relevant issues and reasons for those findings, and then the effect of those findings on the Statement of Facts.

Mick Berwick

[12] Mick Berwick was another school friend of Yuen.

1. This material was not pressed by the prosecution, and was omitted from the Statement of Facts.

Exchange of firearms

[17] When Welsh and Yuen were still friends, they exchanged firearms.  Welsh’s partner, Stephanie Turner, recalled that when the couple lived in Monash, between about April 2009 and June 2009, he had possession of two firearms. She describes one as a double barrel shotgun and the other as a rifle with a scope. At this time Welsh told Stephanie Turner they belonged to Yuen.  At her demand Welsh returned the firearms to Yuen.  It was this shotgun that Yuen used to murder Welsh. 

1. This material was conceded by the defence, and was included in the Statement of Facts.

Previous shooting experience

[19] A prerequisite to shooting at the Gun Club is training in handling a firearm as well as firearm safety. Scott Gielissen also states he had been out shooting with Yuen in the bush.

1. The first sentence of this paragraph was conceded by the defence.

1. Scott Gielissen gave evidence that he had been out shooting in the bush one night with Mr Yuen, Mr Elphick, and possibly Mr Berwick. There were two guns, one being a shotgun, and he had seen Mr Yuen shoot each of them. He thought Mr Yuen had fired a couple of shots from the shotgun.  There was no challenge to this evidence.

1. The paragraph remained in the Statement of Facts in its original form.

Observations of the shotgun

[20] On 22 April 2010, Cameron Ashcroft along with his friend Martin Kundert and Kundert’s girlfriend, Brooke Barnes, went to visit Elphick at 6 Lowerson Place, Gowrie. When they arrived, Kundert saw Yuen walking around the outside of the house with a double barrel shotgun (the same shotgun referred to in [17] above), frantically looking around. Yuen came into the house and placed the shotgun down next to the couch in the lounge room. Kundert saw that the gun was cracked open and loaded with two red and gold coloured shells.

1. Mr Kundert gave the following evidence:

Yes?---We sat down, smoked a few cones.  While we were doing this there was another fellow I don’t quite recall what he really looked like et cetera, et cetera, you know.  But he was running around the house, for a while outside the house, angry like, you know.  Todd was - Todd told me that apparently someone broke all his windows and bashed his girlfriend. 

...

MR DRUMGOLD:  Okay, did you have any conversations with anybody that identified him before you - - -?---Yes, I had a conversation with Cameron Ashcroft, and he told me it was Kai Boy. 

Okay.  Now I just want to talk about what this person that you knew as Kai Boy was doing?---He was - at first he was running around the front of the house. 

And was he carrying anything?---Not at that stage. 

Okay.  What was his demeanour running around the house?---The demeanour?  What do you mean by that? 

Angry, happy?---He wasn’t too happy.  I think he was a bit hyped up. 

Yes?---Yes. 

And what happened then?---Well, I sat down.  Me, Brooke, Cameron and Todd.  We smoked some cones.  And as we were doing this, I first seen the fellow come in the house.  He walked to behind the couch where a shot gun was laying, picked the shot gun up and he started walking around the house with it. 

Okay.  What sort of shot gun was it?---It was a shot gun, a big long one.  A big one. 

How many barrels were on it?---Two. 

And were they horizontal or vertical?---I’m pretty sure they were vertical. 

Vertical being one above the other?---Yes, that’s right. 

Okay.  Did you see if there were any - if there was any ammunition in

it?---Loaded. 

Okay.  How did you see that?---It was cocked open behind the couch. 

Okay.  When he picked up the shot gun, what did he do?---It was still cocked open, and he just walked around with it. 

Walked around where?---Around the house, around the back of the house. 

So on the outside or the inside?---The outside and the inside. 

Okay.  Okay.  At the point that he picked it up, where - just cast your mind back as accurately as you can - where is the first place that

he - - -?---The first place he picked it up, he was standing behind the couch. 

Okay.  And where did he go - and when he picked it up, was it opened or closed?---It was opened. 

Okay - - -?---It stayed open the whole time. 

Okay.  Did you see any ammunition inside?---Yes. 

Okay.  And when he picked it up, where did he go from there?---He walked around to the - I think it was the kitchen. 

Yes?---And down the stairs and around the house.  He come up again.  He went out the backyard real quick.  He walked down again.  I didn’t really pay much attention to it, mate, no.  Yes.  Just kind of left it at that.  I thought, “Pff.”

1. I had some doubt about Mr Kundert’s evidence of seeing Mr Yuen walking around carrying the gun outside and inside the house, arising from the facts that:

(a)Mr Kundert had not included a claim of having seen Mr Yuen outside the house with a gun in any of his earlier statements or interviews; and

(b)Ms Barnes gave evidence that she was with Mr Kundert throughout their visit to the house except for a visit to the toilet, but that she was not aware of Mr Yuen having possession of the shotgun at all while she was there.

1. Both Mr Kundert and Ms Barnes gave evidence of seeing the shotgun in the lounge room, and Mr Kundert was able to describe the shells he saw in the shotgun when it was open. The description matched the descriptions of the murder weapon given by Mr Yuen, who also conceded that the shotgun was sometimes stored loaded and cracked open in the lounge room, and by Mr Pieterse.

1. The final version of the paragraph is as follows:

[20] On 22 April 2010, Cameron Ashcroft along with his friend Martin Kundert and Kundert’s girlfriend, Brooke Barnes, went to visit Elphick at 6 Lowerson Place, Gowrie. Brooke Barnes saw a shotgun lying on the floor behind or beside a couch. Kundert saw a shotgun lying on the floor behind the couch, and saw that the gun was cracked open and loaded with two red and gold coloured shells.

Damage to red Daihatsu

[32] When Welsh failed to return the green Ford Falcon, Yuen and Elphick decided to cause some damage to the red Daihatsu Charade in retribution. Yuen and Elphick pushed the car to a neighbouring yard then removed the front wheel nuts, and removed some items from the boot of the car including some stereo system components.

1. Stephanie Turner gave evidence of having gone with Mr Welsh to collect the red Daihatsu, and finding that the car had been damaged.

1. Mr Yuen gave evidence explaining that the damage to the Daihatsu’s ignition was not caused in retribution for Mr Welsh’s dealings with the green Ford.  He said that the Daihatsu, which had been left outside Mr Elphick’s house by Mr Welsh, was moved because, at an inspection in connection with the lease of the house, Mr Elphick had been told that they had to get rid of the cars off the lawn.  Mr Yuen said that Mr Elphick had “black-boxed” the ignition in order to be able to move the car a short distance along the street and park it outside another property. After the property inspection was completed, the red Daihatsu was moved back to the premises where it was parked on the lawn.

1. Mr Yuen also said that the stereo equipment (a subwoofer and an amplifier) was removed because a chainsaw and some tyres had been removed from the green Ford before Mr Elphick recovered it, and Mr Elphick planned to hang on to the stereo equipment until the chainsaw and tyres were returned.

1. Mr Yuen’s evidence was challenged by the prosecutor.  In cross-examination, Mr Yuen gave the following evidence:

I want to suggest to you that the damage to the car was not for any particular purpose, that it was not for a functional purpose, it was in retribution for him taking the car, that that is …(inaudible)…?‑‑‑No.  Well, I did not damage the car so - - -

...

But it was not - - - ?---It was for a purpose, yes.

It was not the only bomb car in the house - in the yard at that time, was it?---No, no.

There was a BMW under the carport - - - ?---No, Scott Gielissen also had a written off Mazda and we were trying to get him to get rid of it, yes.

But Todd himself had a written off - had a BMW with no wheels on it under the carport?---Yes, he was working on it, yes, yes.

You had the Vitara sitting there?---That is right.  The Vitara was working, yes.

And there was Brendan Welsh’s red Daihatsu?---Well, it was not his car, but yes - - -

Well, there was the red - - - ?---the Daihatsu he left there was there, yes.

So you are not worried - what I am suggesting to you is the BMW with no wheels, the old BMW with no wheels remains there, the Vitara remains there, but on your suggestion we have removed the red Daihatsu because we are worried about a house inspection?---Well, I am just telling you the truth.  The house - lady who did the house inspection said, “Look, some of these cars have got to go.  There’s, like, seven of them.”

Some of them?---Yes, so - - -

Well, I am suggesting that that is not true.  I am suggesting - - - ?---Well, she is not going to tell us to get rid of all of our cars.  She told us to get rid of some of these bomb cars.

So she particularised the red Daihatsu, did she?---No, she said, “Get rid of some of these cars.”  So we thought we had better get rid of the ones that are not ours - - -

Indeed?---that we do not need here, we do not want here.

You know full well that when a search warrant was executed on your house on 12 May 2010 that the red Daihatsu was right there where it was all the time?---Back on the lawn?

Yes?---Yes, because after she come and checked that they were gone we put it back there and the owner of the car actually come over and we - I think that was the day we put it back on the lawn.  She rang us up saying she was going to call the cops because Brendan had said we had stolen the car.

I am not asking anything about that.  I am asking about - - - ?---Well, you - - -

I am qualifying your evidence that you gave.  You said that the evidence that you portrayed was that the red Daihatsu was damaged but it was not in retribution, it was for a functional purpose, it was because we had a house inspection?---Yes, it was, yes.

Yet there was a car sitting there under the carport with no wheels on it in a worse state - - - ?---Yes, yes, Todd was doing his car up, yes.

- - - than the red Daihatsu.  And that was not moved for the house inspection?---Well, it was on bricks and it belonged to Todd.  Why would he get rid of a car he owns?

Neither was Mr Gielissen’s car that you just mentioned, the Mazda, it was not moved?---We could not get him to pick that up either, yes.  We tried.

You couldn’t get Brendan to pick up the red Daihatsu but the thing that you did with the car that Brendan Welsh left there was you damaged it?‑‑‑Not me, no.

Mr Elphick damaged it?---He damaged the ignition, yes, to move it.

...

And removed things from it?---Yes, he took the sub and the amp out.

1. The prosecutor argued that Mr Yuen’s evidence should not be accepted, mainly because there had been no attempt to move the BMW without wheels that had been in the carport of the house throughout the inspection period.  Mr Yuen conceded that the BMW, which belonged to Mr Elphick, had not been moved during this period, pointing out that the BMW belonged to Mr Elphick and he had been doing it up.

1. Apart from the undisputed evidence that the BMW had not been moved for the purposes of the house inspection, and that the red Daihatsu was in the yard of Mr Elphick’s house two days after the murder, there is no basis for rejecting Mr Yuen’s evidence. In particular, the suggestion that the yard of Mr Elphick’s house was tidied up while the property inspection was in progress and then restored to its usual state seems entirely possible. Nor am I convinced that Mr Elphick’s failure to move his BMW from the carport during the property inspection period suggests that the property inspection was, in effect, an invention. A lessor might well have the right to require that a rented property not be used to store an excessive number of motor vehicles, especially if those vehicles have spread beyond the dedicated car parking and onto the lawn or the nature strip; it is not so clear that a landlord could complain about a tenant using the carport to “park” a vehicle that is awaiting repairs of some kind (or even the addition of wheels).

1. I note also that Mr Yuen’s reference to the owner of the car saying she was proposing to call police on the basis of a report from Mr Welsh is consistent with his taunt to Mr Welsh in the 13 April text message quoted at [25] below about Mr Welsh “[calling] a girl for help and [getting] her to call the cops” instead of coming to get the car himself.

1. There is accordingly no basis on which I could be satisfied beyond reasonable doubt that the Daihatsu was damaged in retribution for something done by Mr Welsh, rather than as part of moving it in connection with the house inspection. The final version of the paragraph is as follows:

[32] Yuen and Elphick pushed the red Daihatsu Charade to a neighbouring yard then removed the front wheel nuts, and removed some items from the boot of the car including some stereo system components.

Threat to Brendan Welsh

[40] The last comment in the SMS exchange of 13/4/10 (10:08pm) was a reference to Welsh’s former partner, Rowena Turner, who as outlined at [5] committed suicide on 12 September 2007. This was a coded threat.

1. The SMS message sent at 10.08 pm on 13 April 2010 was from Mr Yuen to Mr Welsh, and read:

What wrong ya big girl. Too scared to come get the car that u ditched on our lawn so u call a girl for help and get her to call the cops. now Who’s the scared little crackhead drama queen dog. See ya soon Rowena.” [Emphasis added]

1. The prosecutor says that “See ya soon Rowena” was a coded threat meaning that Mr Welsh also would soon be dead. Mr Yuen gave the following evidence about the text message:

Now, I’m going to suggest to you that that’s a very clear reference to Rowena, his deceased partner?‑‑‑Yes, yes, it’s a reference to her, but it’s ‑ I know what you’re getting at, yes.

Yes and just wait for the question before you answer it?‑‑‑Yes.

And that that reference is, “You’re going to be dead soon too”?‑‑‑Absolutely not.  It’s a perfectly good - - -

What do you say you meant by the phrase, “See you soon, Rowena”?‑‑‑Well, it’s a bit of a long story, but we’d fallen out once before, me and Brendan, and I’d also fallen out with Rowena, but was still friends with Brendan at one stage and there was a stage where she was coming around me house threatening to smash up a new car I had bought at the time and throwing bottles at me house and that, and anyways, she died - or - or - around that time or before she’s died, me and Brendan had a small falling out and Brendan did the same thing back then, he started threatening to burn my house down, smash my car and back then in about 2007, 2008 was the first time I called him “Rowena”.  I said to him on the phone, I said, “You’re just like Rowena”, you know.  She used to threaten to smash my car.  And he hated it, he - he got angry and that and yes, so me referencing that later down the track, because he was doing the same thing again.  Like, it was personal between me and him.  He knew exactly what I meant, but it wasn’t - it absolutely was not a death threat.

1. The prosecutor conceded during the hearing that Mr Yuen had given a similar explanation of the text message to police when he spoke to them on 26 May 2010 (two weeks after the murder and more than two months before he was charged).

1. If, for instance, Mr Yuen had used an expression like “Say hello to Rowena”, it would have been possible to interpret this as implying that Mr Welsh would soon be dead (and therefore, depending on one’s beliefs, going to a place where he might meet the deceased Rowena).  However, it is hard to identify an implication that supports the prosecutor’s submission in the comment actually made, the structure of which is that “ya” (presumably Mr Welsh) is being addressed as Rowena.  It is possible to imagine the use of “Rowena” in this context to refer to “a person who is dead”, but harder to make sense of the name being used to mean “a person who will soon be dead”.

1. I cannot see any reason for rejecting Mr Yuen’s explanation that when Rowena Turner was alive, she had on occasions threatened to damage his car, and that he was addressing Mr Welsh as Rowena because of Mr Welsh’s threats to damage Mr Yuen’s car.  The claim that Rowena Turner was given to threatening damage to cars was not challenged, although it may be that now that Ms Turner and Mr Welsh are both dead, there is no-one left to challenge it.  Accepting that possibility, Mr Yuen’s explanation does nevertheless make more sense of his comment than the suggestion that addressing Mr Welsh as Rowena was a death threat.

1. On 28 April 2010 at 2:06 pm Mr Yuen sent the following text message to Mr Welsh:

O no. U really r a scared Cunt aren’t ya. O well tell em if they wanna come for me they better be prepared to kill me. See ya soon ya weak little Bitch. Good luck getting ya m8 to Fight for ya you scared little crack head

1. I find that “See ya soon” in the 13 April message was intended as a threat of a forthcoming confrontation, like the words “See ya soon ya weak little Bitch” in the 28 April message. However, I cannot be satisfied beyond reasonable doubt that the reference to Rowena turned the threat of an imminent confrontation into a death threat.

1. The words “This was a coded threat.” have been omitted from the Statement of Facts.

At Yuen’s home

[53] When they got to 6 Lowerson Place Gowrie, Yuen saw the broken window and became enraged.  He went inside the house and came out holding a double barrel shotgun, and was in possession of six rounds of ammunition.  This was the gun, earlier referred to at [17] and [20], that he later used to murder Welsh.  He told the group to get in the car and come with him.

1. Brendan Prebble gave evidence of Mr Yuen telling the other three to get into the car.

And what happened when you got to 6 Lowerson?---We were having a look at the smashed window and everyone was sort of talking and Kai walked out with a shotgun from the house.

What was his emotional state at that stage?---Just sort of angry.

And what did he say?---Told everyone to jump in the car.

And did you respond?---Yes.  I think everyone was just saying, sort of, you know, no don’t do anything like this and he just wanted us to jump in the car.

And did you get in the car?---Yes.

1. Mr Prebble was not cross-examined on this evidence.

1. The sentence “He told the group to get in the car and come with him.” remains in the Statement of Facts.

Yuen gets out of the car near the Hughes shops

[67] Ashcroft got out of the car again, and Elphick drove back down Whittle Street, turned left on Groom Street to Wark Street. He did a u-turn and drove back down Groom Street parking next to the Hughes Primary School. Yuen got out of the car again carrying the gun and directed Elphick to wait saying “Youse know what’ll happen if youse fuck off on me.” Yuen walked off along Groom Street towards Whittle Street holding the gun.

1. Mr Prebble did not in his evidence mention what Mr Yuen said when he got out of the car at Hughes shops with the shotgun. Mr Stephen said that when he got out of the car, Mr Yuen said “Go down the road and fucking wait for me”. He was not cross-examined on that evidence.

1. Mr Prebble and Mr Stephen gave different evidence about where exactly Mr Yuen had got out of the car on his way to the meeting at the Hughes shops. Since the issue seemed to have no significance anyway, I did not see any need to make a finding.

1. The last sentence of paragraph [67] of the Statement of Facts now says:

Yuen got out of the car again carrying the gun and directed Elphick to wait, saying something like “Go down the road and fucking wait for me”.

1. The sentence “Yuen walked off along Groom Street towards Whittle Street holding the gun.” has been omitted from the Statement of Facts.

The shooting

[78] Yuen approached the front driver’s door and through the partially opened window. Yuen pushed the safety catch to enable the shotgun to fire and pulled the first trigger, firing the shot from the first barrel into Welsh’s chest. As the car jolted marginally forward, Yuen pulled the second trigger and discharged a second shot, this time hitting the “B” pillar between the front and rear side doors at head height. Ballistic analysis suggests these shots were less than a metre from their target when fired.

1. This paragraph has been substantially revised, including to give more detail about the circumstances in which Mr Yuen fired the two shots, the first of which killed Mr Welsh.

1. Mr Yuen gave the following evidence about approaching the car driven by Mr Welsh:

And then you said you ran towards the car?---Yes, straight towards the car.  Straight at the driver’s side door. 

...

Now, from - what speed were you moving at?---I ran as fast as I could get there.  It’s only a short distance, yes. 

And what were you carrying when you ran?---Shotgun. 

And how were you carrying it?---Sort of - well, I think it changed as I was running.  I think I took off round the corner with it in two hands like that.  And I think as I was running towards the car I had it pointed sort of down, and I think as I got closer to the car I sort of levelled it, yes. 

Now, when you decided to run to the car, just at that point, where you decided to run to the car, what were you thinking and what were you planning to do?---Same as always - just get to the driver’s side door, make them stop the car and then see where Brendan was in the car and confront him.  Yes. 

And were you intending to shoot him?---No. 

So, you’ve said you ran towards the car.  How were you holding that gun?---Running towards the car? 

Yes?---Sort of like this.  I don’t - I can’t say anything with any certainty, but I don’t think I was running with it fully braced, but I had it signed of [sic] levelled off at him up against my shoulder, sort of partially, and then in both hands. 

Now, you’re holding it - you were holding your hands up.  Was your left hand - where was that on the gun?---On the foregrip, I think you call it, and then my hand was back holding the other piece, the stock, and with my finger on the trigger, I think, yes. 

Your finger was on the trigger?---I believe so, yes. 

So inside the trigger guard?---Yes, yes, it would have to be, yes. 

All right.  Now, what about the safety on that gun?---Sorry, what about it? 

Did it have a safety?---I believe so, yes.  Yes, well it had the switch. 

All right.  We’ve seen a demonstration today?---Yes. 

And the firearms expert said that there was a safety.  Was that something you’d ever used?---I wasn’t in the habit of using them, or not out the range or any other times I shot with them.  You always use the cracked gun as a safety sort of thing. 

But you weren’t carrying it cracked at that time?---No, it was closed. 

So as you got - you’ve said you ran towards the car?---Yes. 

What happened?---I think as I’ve approached the car, as I was intending to open the door - I have to say this all seemed to happen at once, so it’s hard to explain - as I’ve approached the car with the gun levelled, I’ve sort of gone to open the door and almost - - -

Nice and slowly, you’re doing some hand movements as well?---Yes. 

What was your left hand doing?---Holding the foregrip as I got there. 

Okay.  And you said as you were going to open the door, what did you mean by that?---I was going to use my left hand to open the door. 

Okay?---Driver’s side door. 

And - all right.  So at what - how close were you to the car when you were going to open - you were close enough to open the car door?---Yes. 

And what did you do?---In the instant I went to grab the car door, a shot fired. 

So, just nice and slowly, when you say, “When I went to grab the car door,” what did you do with that left hand?---I think I went to drop it down and grab the car door handle. 

So you let go of the gun?---Yes. 

And what happened in that instant?---A shot went off, and the gun kicked. 

Now, just stopping at that exact moment, did you activate the trigger deliberately?---No. 

What were you thinking at that exact moment? Or what were you intending to do even at that exact moment?---At the moment the shot fired?

Yes. Yes?---I don’t think I can answer that, it was such a shock. Like - yes, so- - -

Well before the shot- - -?- - -I was still - still intending to open the door and then the shot’s fired. Yes, and I just reacted. Yes.

So once that shot was fired, what happened with the gun?---It sort of kicked, and from the best of my memory, it sort of kicked over my shoulder a bit when I was holding it with one hand, and I’ve reacted to grab it, and another shot’s fired. It was sort of over my shoulder pointing downwards when it fired, on more of a downwards angle.

Now, when you say, “The first time the gun discharged,” your finger was on the trigger at the time that that happened?---Yes.

Okay. And the gun hadn’t - you’d taken your hand, your left hand, off the gun?---Yes. Or in the process of doing it, yes.

How or why do you think the trigger was activated? What happened?---I can’t say with any certainty; it all happened so fast. I’ve either–yes, it’s fallen onto the trigger, or a combination of me pushing into the–or I bump–yes. A combination of me taking my hand off and it hitting the trigger, or my movements at the time leaning for the door. And yes, maybe my shoulder, you know, not meaning to, pushed the gun forwards into my finger or, I can’t say for any certainty at all; just happened so quick. Yes.

But at the time the gun discharged, you were only holding the gun with one hand?---Yes. Yes, or in the process of taking the other hand off.

Sorry. I’m still only talking about the first time it discharged?---Yes, yes.

And you said, “or in the process of taking your hand away”?---Yes.

And before it discharged, how tightly were you holding it?---I can’t say. It wasn’t–I know it wasn’t really firm. So, probably yes. Well, it wasn’t locked firm like I was about to fire, but I was just sort of carrying it loosely with it half-rested on my shoulder.

And as it moved, do you think that grip would have changed–or, sorry. Not would have changed, but do you recall your grip changing as it moved?---As moved from the shot being fired, or?

No, just as you’re- - -?---As I move?

- - -moving your other hand and?---Yes. I wasn’t–I can’t–I can’t break the whole instance down into milliseconds sort of thing, or I can’t say for any certainty how it was moving. Yes.

1. Despite extensive cross-examination, Mr Yuen gave substantially the same evidence:

Now, we’re going to break this up in a great deal of detail.  You’ve got the gun in your right hand?---Both. 

Both hands?---I think, yes. 

Okay, so, first of all, you’ve got - where the trigger is where your right hand is?---Yes. 

And where are your fingers?---I think there, I had a finger on the trigger, yes. 

Finger on one trigger or two triggers?---It would be just one, yes. 

Okay.  Which finger?---I dare say probably that one. 

So your index finger.  And is it on the front trigger or the back trigger?---Most likely on the front.  Yes, I wasn’t - I can’t say anything for sure.  Like, it happened so fast, but - - -

We’re going to - - -?---I understand you’re going to try and get me to break this down into slow motion and milliseconds.  It just doesn’t happen like that, Mr Drumgold. 

Well, I’m asking you to recall as best as you can?---Yes. 

Where is your second finger?  Is it on the inside of the trigger guard or on the outside of the trigger guard?---I’d say outside. 

So your front finger is on the front trigger, to the best of your recollection, and the remaining fingers are on the outside of the trigger guard?---Yes. 

Okay.  Again, this is the point that - where I want to be specific.  I’m talking about the time that you have hopped down the gutter?---Yes. 

And you’re in the first car park?---Yes. 

And you’re moving quickly toward the car in that fashion?---Yes. 

And your left hand is on the - - -?---Fore end. 

On the fore end.  As you walk up to the car.  And the gun is at all times pointing where a driver would be sitting, is that your evidence?---I think I levelled it off just as I got to the car and was about to open the door, yes. 

Just - as you’re running to the car, and your intention at that stage is to open the door, effectively with the gun pointing at him?---I don’t know.  I was - my intention was to get to the car, open the door, make him pull the keys out and then confront Brendan wherever he was sitting the car. 

Where’s the butt of the gun?---Somewhere around my shoulder there.

So the butt of the gun is on your shoulder, and your hand is on the trigger area, and your left hand is on the fore end?---Yes. 

And then as you’ve walked up, the gun’s pointing at the driver.  Let’s say Mr Welsh.  I accept - with the qualification on your evidence that at this stage you say that you don’t know Mr Welsh is in the driver’s seat?---Yes. 

Okay.  But we found out obviously that it was Mr Welsh in the driver’s seat?---Yes, yes. 

So that the gun is pointed at Mr Welsh effectively.  And at this stage it’s your intention to reach in, open the door and say, “Get out - take the keys out and get out of the car,” hold up-style?---Pretty well, yes. 

Okay.  Now, I understand it’s been a long time ago but I’m putting to you that this is a significant event in your life?---Yes.

And you’ve overplayed this a lot in your mind?---Yes.  Yes.

You - you - it would be fair to say that you’ve played over and played over and played over these events particularly over the last couple of years since you’ve been arrested?---Yes, that’s right.  Yes.

And particularly in preparation for the evidence that you’re going to give, yes?---Well, I’ve relived this moment, yes, heaps.

Heaps?---It’s something I’ll never forget.

Now, did you touch the door handle?---I don’t think I did, no.

How far did you get from the door handle?---I don’t know.  One thing I can tell you is I think the gun barrel was about probably six to eight inches from the window when it went off.  So, yes, that’s - yes.

And on your evidence at the point the gun went off you were reaching for the door handle?---Yes, about to.  Yes.

And I mean that’s what you put forward, isn’t it?---Yes.

You - you put forward - your explanation for the gun discharging - - -?---Yes.

- - - was that as you propped the - as you removed your hand from the fore end of the gun, yes?---Yes, well, it - when I was about to - - -

To - - -?--- - - - do that, yes.

To reach forward for the handle - - -?---Yes.

- - - that’s the point that the gun discharged?---Yes.

And on your evidence you can’t recall whether it was the weight of the gun or whether it was a flection of your finger?---It all happened very fast, yes.  I wasn’t expecting that first shot to go off when it went off, yes.  I tried to explain it as best I could but it’s hard, you know, like - especially when you’re trying to write it down point for point what happened.  It all happened sort of at once all together, it’s just a hard time to explain.

I understand that but you’ve played this over in your mind again and again and again, haven’t you?---Yes, I’ve asked myself many times what - what the fuck went wrong, you know.

So the barrel, on your evidence, was - the end of the barrel was six to eight inches from the glass?---That’s - it could vary but it was close, yes, when it went off.  I remember that.

Sort of that - that far?---Yes.

Yes?---Something like that, yes.

Okay.  At the point that you removed anything it happened simultaneously.  As soon as you’ve taken your hand off to open your door handle - - -?---I may not have even got the hand off so much but as I got there and sort of stopped running to do it, it just all happened at once, yes.

This is an important Mr Welsh [sic], did you - Mr - I withdraw that.  Mr Yuen, this is an important point?---I understand that, yes.

Did your hand come off the fore end or not?---I don’t know, I can’t tell you.  It all - all - once that shot went off, yes, I can’t - you can’t slow things down when something like that happens and just slow motion forward and say unless there’s footage of it slowed right down, I can’t - can’t break it down like that.

Can I suggest to you that you were more certain in your evidence‑in‑chief that your hand had come off the fore end at the time - - -?---Yes, well, I was in the process of taking it off or, you know - you’re - you’re motioning like this, like I’ve reached for the door or something, I’m just - I don’t know if it’s like you’re trying to put it, yes.

Well, your evidence was - this is at page 243, your Honour. “Okay.  And you said as you were going to open the door, what did you mean by that?” And your answer was, “I was going to use my left hand to open the door.” The next question was, “Okay.” And the answer was, “Driver’s side door.” Next question, “And, all right, so at what - how close were you to the car when you were going to open - when you were going to open - you were close enough to open - to open the car door.” And your answer was, “Yes.” “And what did you do?---In the instant I went to grab the car door a shot fired.”?---Yes.

That was your evidence-in-chief?---Yes.

Now, I understand that you’re now saying that my recollection isn’t that detailed but that was your recollection?---That’s - that’s, yes, that’s how I still think of that, yes.

So your recollection was you’ve got the gun in that position braced against your shoulder?---Yes.  Up around the shoulder, I don’t know if I was holding it tight, yes.

You’ve got your finger on the - on the front trigger, your index finger on the right - on the front trigger?---Yes.

The rest of your fingers are on the outside of the - - -?---Yes.

- - - trigger guard.  You’re close enough to reach the door handle when you take your hand off the fore end?---Or thereabouts, yes, just a matter of leaning towards it or something, yes.

Well, it must be because that’s - that’s the point.  What’s - what’s the point in taking your hand off if you’re still running toward the car?  You’re running ‑ ‑ ‑?---Yes.

You’re close enough to - - -?---Yes.

...

MR DRUMGOLD:  Now, I’m just going to break down your evidence‑in‑chief and I’m going to ask questions about that.  This is the question again: “Okay.  And you said as you were going to open the door,

what did you mean by that?” And your answer was: “I was going to use my left hand to open the door.” Do you accept that?---Yes.

Okay.  And then you qualified driver’s side door. “And, all right, so at what - how close were you to the car when you were going to open - you were close enough to open - to open the car door”?---Yes.

And your answer was yes.  By that you mean your left hand that you’d intended to open the car door was close enough to the car door to open the door handle?---I was standing right next to the door, yes, or in front of it.  Yes.

I don’t want to ask questions about standing right next to it.  Your left hand could reach the door handle?---Yes.  Yes, I think so.  Yes.

At the point that you - hang on, sorry, I’ll withdraw that.

“And what did you do?---In the instant I went to grab the car door a shot fired.”?---Yes.

So I just want to break that up.  Because we covered your index finger is on the front trigger and your left hand is on the fore end?---Yes.

You’re close enough that your left hand can reach the car door, can touch the car - the door handle?---Yes.

And when you say, “I went to grab the car door,” You mean you went to open the door handle; is that correct?---Yes.  Yes.

HER HONOUR:  No, sorry, it’s that “went to” again.

MR YUEN:  I was.

HER HONOUR:  You were about to or you actually - - -?---Yes, I was about to.  Yes.

HER HONOUR:  - - - put your hand out?---Yes.  Yes.

MR DRUMGOLD:  So went to means I’m in the process, I’m removing my hand from the fore end or with the intention of grabbing hold of the door handle and pulling the door handle to open the door?---Yes.

When you say, “I went to”, that’s what you mean?---Yes.

The purpose for removing your left hand from the gun was to move it out and grab the door handle and pull the door handle up?---Yes.  Yes.

And your evidence was from the previous question: “And you were close enough to open the car door?” Your answer was yes.  That means that your left hand was close enough to the door handle to actually reach it?---Yes.  Or with like another half step needed or something but, yes, I was close enough to reach it, lean in or grab it, yes.

And at this point the gun is clearly pointed at Mr Welsh, against your shoulder toward Mr Welsh?---It was levelled up, yes.  Yes.

And six - still the butt - I’ll withdraw that.  The end of the barrel is still six to eight inches away from the glass?---That’s about the distance it was when it fired, yes.

1. Mr Pieterse gave the following evidence in examination in chief about the weight needed to discharge the shotgun and how that might be applied:

Okay, so hypothetically, if I were to – if the gun were vertical and all of the weight were on the trigger and I were to hold it, the weight - and the safety were disengaged, a vertical gun, the weight of the gun would be sufficient on my math to discharge both – either of the triggers, is that correct?‑‑‑Your Honour, with the firearm pointing downwards and with the weight, or with – and the – and you would hang the trigger where the object you hang it from is in the centre of the trigger, then the weight of the firearm would be able to discharge that trigger.

But of course if the gun were horizontal, the weight wouldn’t be on the trigger, would it?‑‑‑Not necessarily, your Honour. 

Okay, so it would still require some force, and not insignificant amount of force to discharge the firearm, is that correct?‑‑‑The force has to be rearwards on the trigger, on the front face of the trigger. 

Okay.  And that applies both for the front trigger to discharge the bottom barrel and the rear trigger to discharge the top barrel?‑‑‑That is correct, your Honour. 

So in order to fire both rounds, you would need to pull one trigger and then the other trigger, is that correct?‑‑‑That is correct, your Honour.  You can – if you fell inclined to, you can pull both triggers at the same time.

That was going to be my next question?‑‑‑You can pull both triggers at the same time, but not with one finger. 

Not with one – obviously.  So you could have a finger on each trigger and discharge both barrels by simultaneously pulling both triggers?‑‑‑That is correct, your Honour. 

Or you could fire one trigger and then the other trigger?‑‑‑That is correct, your Honour. 

1. On the basis of Mr Yuen’s own evidence and that off the ballistics expert, I found that Mr Yuen ran towards the driver’s door of the car being driven by Mr Welsh; that the gun was ready to fire; and that Mr Yuen had a finger on one trigger.  The gun would not have discharged without the application of the necessary pressure on the first trigger (even if that pressure was in fact exerted by the weight of the gun “hanging” on the holder’s finger).

1. As to the second shot, Mr Stephen said in cross-examination:

And you heard something?‑‑‑I heard two gun shots?

And you said that they were quite close together, “bang bang”?‑‑‑Yes.

And the prosecutor said “bang, a thousand, bang” and you said that was too slow, they were closer together?‑‑‑Yes.

1. Mr Yuen gave the following evidence:

Now, the gun discharged a second time?---Yes.

You heard Josh Stephen say that it was quite quick, “Bang,

bang.”?---Yes.

You would agree it was that quick?---Yes, it was very quick.

And do you know exactly where the gun was – or, as you were holding it, are you able to say with certainty where the gun was when the second discharge happened?---Yes.  Kind of over my shoulder in some manner, yes. Like, I know it had kicked back a bit, and as I reacted to catch it, the second shot fired.

Okay. What happened next?---I heard someone scream, and I think I swore under my breath, and just ran. I knew something, you know? I seen the first shot go through the front window, and I was pretty certain, straightaway, someone had been hit.

What did you see at the time that the first charge discharged?---I seen the gun kick and a window smash right in front of me.

1. Mr Stephen’s evidence of how quickly the second shot followed the first convinced me that Mr Yuen did not, either deliberately or inadvertently, get a finger onto the second trigger after firing the first shot (especially since there was evidence that he was wearing gloves at the time). Rather, Mr Yuen must have had a finger on the second trigger as well as he ran towards Mr Welsh’s car (Mr Pieterse’s evidence quoted at [43] above was that it was possible to have fingers on both triggers at the same time).

1. Mr Yuen’s evidence was when he ran at the car he was holding the gun with two hands, that as he ran he “sort of levelled it” and had it “up against [his] shoulder”; from that, and the evidence of where the shots from the gun finished up, I inferred that he was holding the gun close to horizontal and aiming at a point roughly at head height of a person sitting in the driver’s seat of the car driven by Mr Welsh.

1. Next, I inferred that Mr Yuen intended to fire the shotgun as the beginning of the confrontation with Mr Welsh.

1. Mr Yuen’s intention over the weeks preceding the murder was to meet property damage caused by Mr Welsh with personal violence. There was evidence from both text message exchanges and from Mr Yuen of this intention. The relevant messages were as follows:

12/4/10 Yuen to Welsh – (2:09am) “U stupid cunt. Break into my house ey. It’s on cunt. Fuckin arm up. You’ll need it.”  

12/4/10 Welsh to Yuen – (2:10am) “Wel ya fucked my car” (2:16am) “U watch ya work van” (2.22am) “Everything waz fine now ya want fuck my car now u leave me no choice I got another car but do u?”

12/4/10 Yuen to Welsh – (2:23am) “I didn’t touch your car fuck head. If that’s the way you wanna be. if ya wanna blame me. See what happens. Your just as gutless as the bandis u week cunt. Go anywhere near my house or car and u know what’ll happen cunt. U started this shit. Now look how far ur takin it u idiot. U get what u deserve scumbag.”

12/4/10 Welsh to Yuen – (2:26am) “Its on now I gunna do that every day and fuck ya car so u cant work”.

12/4/10 Yuen to Welsh – (2:27am) “If the worst u can do is get my car and house than I’m not worried. I’m playing a different game. Your playing the weak cunts game. Cause that’s all u r. A real man would come sort it out. Like u should of in the 1^st place. Your just a scared little boy welsh. Ima take your threat seriously cunt.” (Emphasis added in draft Statement of Facts)

1. In cross-examination, in relation to his intentions towards Mr Welsh before the night of the murder, Mr Yuen was asked about the text message sent at 2.23 am on 12 April (quoted above), and gave the following evidence:

You’re clearly communicating to Mr Welsh that you’ve got a loaded gun at this stage, I suggest to you?‑‑‑No, but I was trying to put it across, yes, if he does anything to my car I’m going to bash him, yes.

Bash him with a loaded gun?‑‑‑No, more like a pole or something or me fists, yes.

But you had a loaded gun there?‑‑‑Yes, it’s just - yes.

And you’ve told him, “If you come to my house, you better be armed”.  “Fucking arm up”?‑‑‑Yes, it doesn’t necessarily mean guns, but.

All right.  Arm up with what, a baseball bat?‑‑‑Yes.  You say - people use that all the time, they don’t necessarily mean guns.

What, to meet you with your loaded gun, then?  To meet you with your loaded gun?‑‑‑No, not necessarily.

Well, you had a loaded gun there.  You were going to bypass your loaded gun and get some other implement?‑‑‑Yes, possibly, yes.

Notwithstanding the fact you told him to arm up?‑‑‑Yes.

...

Then at 2.27, one minute after receiving that, this is what you’ve said to him in an SMS; “If that’s the worst you can do, get my car and house, then I’m not worried.  I’m playing a different game”?‑‑‑Yes.

“You’re playing the weak cunt’s game, because that’s all you are.  A real man would come and sort it out, like you should have in the first place.  You’re a scared little boy, Welsh.  I’m going to take your threats seriously, cunt”?‑‑‑Yes.

“I’m playing a different game”, that’s what you said to him?‑‑‑Yes.

So I’m suggesting to you, in Mr Welsh’s mind, you damage his car, he’s going to damage your car, that was the nature of the threat and counter‑threat between Mr Welsh - I accept that you said that you didn’t have any intention of damaging his car?‑‑‑Yes, yes.

But you’ve communicated to him, in the context of an SMS slightly earlier telling him to “arm up”, that you’re playing a different game from this tit for tat damage game?‑‑‑Yes.  Well, I’ll - I’ll tell you what I meant.  I meant, “You hurt - you touch my car, I’m going to hurt you.  I’m going to bash you.”

Right, so - well, that’s - - -?‑‑‑That’s what I meant by “different game”.  He was damaging property, I was going to hurt him.

That saves my next question.  So your understanding was his intention was to harm your property, your intention was something different, was to harm him physically?‑‑‑Yes.  If - if he damaged my property, yes.

1. He gave the following evidence about his intentions around the time the group stopped at McDonalds at Dickson on the night of the murder:

And at that point in time what was your intention or what did you plan to do - - -?---When I caught up with Brendan?

Yes?---When I caught up with Brendan, yes, I was going to approach him with the gun and just demand that he pay for my window and that and possibly assault him but not by shooting him and that.  But maybe hit him with the gun, assault him, make him pay for the damages he’s done and let him know I’m fed up.  You know, I’m sick of him smashing windows in the middle of the night and ringing me and threatening me and stuff like that.

1. In cross-examination, Mr Yuen said:

And again you say, “I’m going to bash him and make him pay for my window.”  That’s your intention.  That’s what’s in your state of

mind?---My intention the whole time.  Yes.

Okay.  Then that doesn’t occur and he’s not home and you decide you need another plan to initiate a confrontation between you and

Mr Welsh?---That’s right.

And then you come up with a plan that I’ll call - we’ll call Budagarwin?---Yes.

Under the pretence that Budagarwin will call Mr Welsh to purchase some drugs from him?---Yes.

“And then I will be close by and that’s when this event will

occur”?---That’s right.

This was the plan - sorry, I withdraw that.  And then - so Mr Elphick calls Budagarwin?---Yes.

So you tell Mr Elphick, “Okay, I want you to call him to bring him out so I can bash him”?---Tell Elphick?

Yes?---Yes, I said, “Just call Budders and see if, yes, he can organise a - to get drugs off Welsh and” - yes.

But clearly you had a gun.  Your intention was to cause him serious harm at that stage, wasn’t it?---I never intended to shoot him, like I said.

No, no, no, but your intention was to cause him serious harm other than by shooting him?---Yes, I admit that, yes, I was - like I’ve said all along, I was pretty well definitely going to assault him.

1. Mr Yuen gave evidence about why he took the shotgun with him to meet Mr Welsh:

Why did you do that?---Because, yes, I had always intended to take the gun when I confronted Brendan and, yes, it would be useless in three pieces. I just, yes, put it together.

But why had you intended to take the gun with you?---Just to control the situation so it wouldn’t turn into a fight or, you know, I wouldn’t end up being attacked by whoever Brendan had with him and Brendan or whatever. I could just sort of, I suppose, a way of putting it is call the shots, rock up and say, “Right, you smashed me window, give me the money,” and, yes. That’s the best way I can put it, you know.

1. In cross-examination, Mr Yuen repeated his claim that he took the shotgun with him to meet Mr Welsh so he could control the situation:

Now, again, we spoke about your intention here, your intention was you were going to approach him with the gun?---Yes.

And just demand that he pay for the window?---Yes.

And that and possibly assault him but not by shooting him?---Yes.

But maybe hit him with the gun, assault him?---Yes.

Make him pay for the damages he’s done?---Yes.

And let him know I’m fed up?---That’s right.

I know I’m - you know, I’m sick of him smashing windows in the middle of the night and ringing me and threatening me?---That’s right.

So at this stage you’ve grabbed the firearm, the firearm’s in three pieces.  You’ve already got it in your mind that at some point you’re going to put it together?---Yes.

And you’re going to put it together for the purposes of being an inanimate object to strike him?---Yes, and just - yes, and control the situation.  Yes.

Now, we’ve seen the pictures from your phone and you - we’ve heard your evidence, you had knives, you had large knives?---Yes.

You didn’t - why didn’t you grab one of those?---Well, actually a month before I fell out with Brendan I gave him a Samurai sword, so there’s a chance he could have that.  I didn’t particularly want to get into a Samurai sword fight with him.

Right.  So the intention was if he leapt out of the car with a sword you’ve got the gun and that was your intention?---That’s right, yes.

But whatever happened - - -?---So I can control the situation, so anything else he had I still had control of the situation.

1. I found unconvincing Mr Yuen’s evidence that he took the shotgun to the meeting with Mr Welsh purely so that he would remain in control of the situation and, by implication, that he did not intend to fire it – if only because carrying a gun to control the situation implies a willingness to use a gun if that is what controlling the situation requires. If Mr Yuen had not contemplated the possibility of firing the gun, he had no need to load it with two shells. There was evidence that he had also kept the gun in his home loaded; that is not evidence that the loaded gun was not intended for use so much as evidence that it was, at least on occasions, available to be used at very short notice.

1. Mr Pieterse gave evidence about the first shot by reference to the impact on the car driven by Mr Welsh:

And what about the trajectory of the gun?  Can you make any observations about what angle the gun had to be at in order to cause that?‑‑‑Your Honour, it’s difficult when you have one impact point only to determine a trajectory but from the appearance of the damage we have there it does appear as if the shot has come at a right angle or at a very straight angle at the vehicle.

1. Mr Pieterse gave evidence about what was indicated by Mr Welsh’s wounds:

Okay.  Now, are you in a position to make an observation about the – we’ve got the trajectory, assuming, as I think it’s safe to do, that the deceased was seated in the driver’s seat – are you in a position to offer an opinion about the angle at which the gun was pointing when it – the shot that struck the body?---Your Honour, if we look at the trajectory through the body, where the body is an anatomical position – that being with the torso upright – the trajectory is described – the trajectory is described as from right to left, upwards and slightly front to back.  Now, that might mean – that’s only with the body in an anatomical position.  So with the trajectory from right to left would mean that the firearm must have been on the right-hand side of the firearm – of the body at the time of discharge and slightly front to back would indicate that the pellets came from an angle to the right, a little bit to the front of the impact point. 

And the gun would have had to have been horizontal in order to do

that?---It could have been horizontal.  Again, we don’t know what the position of the body was exactly at the time it was struck by the pellets. 

Okay.  Assuming the body was – the deceased was seated in the driver’s seat, it would have had to have been horizontal, is that correct?---Although there were slightly upwards trajectory, that doesn’t exclude the firearm being in a horizontal position or horizontal plane at time of discharge. 

1. Mr Yuen gave evidence that before leaving his home with the gun, he dressed with a view to disguising his identity from passers-by, including by using a neck warmer as a face mask, and prepared the gun to be discarded afterwards, including by wiping his fingerprints off it and using gloves after doing so.

1. The inference that Mr Yuen intended to fire the shotgun is drawn from the text message evidence of an intention to do personal violence to Mr Welsh, Mr Yuen’s own evidence about his intentions and about his efforts to avoid detection on the night of the murder, and my earlier finding that as he ran at the car driven by Mr Welsh, Mr Yuen had the gun held roughly horizontally with a finger one each trigger.  Despite Mr Yuen’s evidence, I do not accept that his intention by that point was to use the gun to bash Mr Welsh.

1. Accordingly, I find that at some point (possibly immediately) before Mr Yuen ran at the car, he decided to begin the confrontation by shooting Mr Welsh (although not by killing him). I do not find that Mr Yuen intended at that point to kill Mr Welsh, or that he necessarily formed the intention to shoot at Mr Welsh any earlier than as he ran towards the car.

1. Based on Mr Yuen’s own evidence, and the forensic evidence relating to how the shot reached the vehicle and to the injuries sustained by Mr Welsh, I concluded that the first shot was fired as Mr Yuen approached the driver’s door and the pellets travelled through the window and (mainly) into Mr Welsh’s chest on a trajectory just below horizontal.

1. My next finding is that the gun discharged either as a result of Mr Yuen’s deliberate application of pressure to the trigger or prematurely as a result of movement of the gun when Mr Yuen loosened his grip on it. The possibility that the gun discharged prematurely is raised by Mr Yuen’s evidence that he took his left hand off the gun as he, in his words, “went to open the car door,” causing the gun barrel to drop slightly.  I cannot rule out the possibility that Mr Yuen reacted to the gun dropping slightly by tightening his right hand grip and thereby applying sufficient pressure to the trigger to discharge the gun.

1. The finding that Mr Yuen intended to fire the shotgun to begin his confrontation with Mr Welsh means that there is no particular significance in my finding that the first shot might have discharged slightly earlier than intended by Mr Yuen (see [75] to [93] below).

1. Next I find, based on evidence given by Mr Pieterse and also Mr Yuen’s own evidence (including that quoted at [41] above), that Mr Yuen pulled the second trigger and discharged a second shot, which went through the edge of the driver’s door and through the B-pillar between the front and rear side doors at head height for a person sitting in the car, and that these shots were less than a metre from their target when fired.

1. The prosecutor suggested that the “fuzziness” of Mr Yuen’s evidence about the actual shooting indicated that he was not telling the truth. I do not see Mr Yuen’s “fuzziness” about these events, the significant portion of which occupied less than a few seconds, as indicating untruthfulness.  Most people would find it difficult to describe the exact sequence of a series of events occurring over a very short period and involving both the person’s own actions and external events influencing or responding to those actions.  Indeed, a person who could describe such a sequence, and in the same terms with each repetition, could reasonably be suspected of offering a reconstruction rather than a memory of the events in question; there is no reason why such a reconstruction should be seen as any less “convenient” or more credible than an admitted uncertainty about the events and how they unfolded.

1. The version of this paragraph included in the Statement of Facts is as follows:

[78] Yuen ran towards the driver’s door with the gun loaded and ready to fire (including that the “safety” was off).  He had a finger on each trigger.   He was holding the gun with two hands, close to the horizontal, and therefore aiming at what would have been roughly head height for a person sitting in the driver’s seat.  Yuen intended to begin the confrontation with Welsh by firing the shotgun.  As Yuen approached the driver’s door, the gun discharged, sending shot through the window and into Welsh’s chest on a trajectory that was not far below horizontal.  The gun discharged either as a result of Yuen’s deliberate application of pressure to the trigger or prematurely as a result of Yuen tightening his right-hand grip (in response to a slight movement of the gun when Yuen released his left hand from the gun barrel) and thereby applying sufficient pressure to the trigger to discharge the weapon.  Yuen pulled the second trigger and discharged a second shot, which went through the edge of the driver’s door and through the “B” pillar between the front and rear side doors at roughly head height for a person sitting in the car seat.  Ballistic analysis suggests these shots were less than a metre from their target when fired.

Yuen’s immediate reaction to the shooting

[88] Elphick heard the gun shots and drove back towards Hughes Shops, doing a u-turn at Whittle Street. He heard Yuen yell “Oi, what are you doing.” Elphick stopped and Yuen got into the back seat of the car still holding the gun and wearing a black mask. Stephen heard Yuen say “I have to get rid of the gun, I think I killed him”. Yuen said he had shot Welsh twice.

1. Mr Stephen gave the following evidence:

Okay.  Now, when Kai returned to the car after the shooting what did he say?---I am not sure, but off the top of my head I think, “I got someone,” like - - -

“I think I got somebody”?‑‑‑Yes, I think.  I don’t know if it was the right - I don’t know.  Like - - -

All right.  Cast your mind back again, did he make a reference to the gun?  What had to occur with the gun?‑‑‑See, that’s why I keep hesitating, because I don’t - I’m not too sure.

If you can’t remember, we keep going over that.  If you can’t remember exactly, qualify it?‑‑‑It was just, like, I got someone but I don’t know if it was him or - - -

Did he use the word “got someone”?‑‑‑Yes - well, I’m not sure.  It was in them kind of words, but.

Well, I need you to cast your mind back in as much accuracy as possible the word that he used?‑‑‑Well, this is going back three years ago.  Like, it was - - -

Did he make a reference to what he had to do with the gun?‑‑‑No - yes, “Get rid of it,” like - - -

Did he say why he had to get rid of the gun?‑‑‑We took off up the road and he was freaking out, going “I think I got someone.”  I don’t know if - yes. 

...

And then when you heard the two gunshots Mr Elphick started the car, went up, did a u-turn.  And then I asked you questions about what Kai said when he got in the car.  I asked specifically in relation to what he said about the gun and I think you said, “I think I got him.”  These were Kai’s words when he got back in the car. Can I suggest to you that you told the police this on 12 August 2010, “Todd drove the car away.  Todd was driving well over the speed limit and I told him to slow down.  Kai was panicking saying words like, Kai said, “I have to get rid of this gun.” And, “I think I killed him.”  That’s what you told the police?---Okay.

Can I suggest to you that that’s in fact what Kai said when he got back in the car?  He said, “I think I killed him.”?---If that’s what I’ve said.  I’ve just got a bad memory.  I don’t - - -

...

And when you did the drive through, when you went with police to do a drive through, you said that you were asked “When Kai got back into the car did he say anything?” And you said “Fuck, you know, like I fucking got him, or I don’t know if it was him.  Like, I’m not sure.”  So, they’re words that you said to the police?‑‑‑Yes, I like I was saying when I said it, I’m not sure exactly what he said and he’s, like, try and make it clearer.  So I’ll just say I can’t remember then because I don’t want to fucking say shit and then got told I’m lying.  So I don’t want to - I’m just going to say I don’t remember.

Okay, but being - I’m not asking you to lie obviously?‑‑‑Yes.

But, as best as you can recall, and maybe not the exact words, one of the things that Kai said in general terms was “I don’t know if it was him.”  You’d agree that that’s something you recall he said?‑‑‑Yes.

And you actually recall that?  It’s not just because I’ve read it from the statement?‑‑‑I think, yes.  I’m pretty sure I remember hearing that.

1. That is, what Mr Stephen gave evidence of was that he heard Mr Yuen saying that he’d shot someone, but he didn’t know if it was him or if it was the right person, that he thought he had killed him, and that he had to get rid of the gun. 

1. The version of this paragraph included in the Statement of Facts is as follows:

[88] Elphick heard the gun shots and drove back towards Hughes Shops, doing a u-turn at Whittle Street. He heard Yuen yell “Oi, what are you doing.” Elphick stopped and Yuen got into the back seat of the car still holding the gun and wearing a black mask. Stephen heard Yuen say he had shot someone but didn’t know if it was “him” or “the right person”, that he thought he had killed him, and that he had to get rid of the gun.

Yuen’s later comments on the shooting

[93] Elphick, Yuen, Prebble and Stephen drove away, slowing briefly along the way where Yuen threw an article of clothing from the car. They returned to Prebble’s house where they resumed the game of poker. Yuen started drinking harder alcohol, and said “This is probably the last time I will see you boys – I shot him, I killed Welshy – you are never to speak a word of it, nobody, not even your girlfriends”.

1. Mr Prebble gave evidence that at his house, Mr Yuen said “I shot Welshy...I will do 20 years for this.” Mr Stephen in evidence reported various things said by Mr Yuen at Mr Prebble’s home after the shooting, but none referring specifically to what Mr Yuen had done or who the victim might have been. He was not asked about words like those reported by Mr Prebble.

1. The version of this paragraph included in the Statement of Facts is as follows:

[93] Elphick, Yuen, Prebble and Stephen drove away, slowing briefly along the way where Yuen threw an article of clothing from the car. They returned to Prebble’s house where they resumed the game of poker. Yuen started drinking harder alcohol, and said “This is probably the last time I will see you boys – I shot Welshy – you are never to speak a word of it, nobody, not even your girlfriends”.

Execution of second search warrant

[107] At 7:18pm on 12 May 2010, whilst Yuen was still at Woden Police Station, police executed a search warrant on the home of Yuen and Elphick at 6 Lowerson Place Gowrie. [ADD]  A second search warrant was executed on 14 May 2010.

1. The defence sought the addition of a reference to the second search warrant and this was not opposed. The extra sentence was added to the Statement of Facts.

Omission of further paragraph of Statement of Facts

1. After the disputed facts hearing had concluded, it became apparent that paragraph [84] of the Statement of Facts was inconsistent with the ballistics evidence, and my finding at [47] above, that Mr Yuen had fingers on both triggers of the shotgun as he ran towards the car driven by Mr Welsh. On 30 May 2013, the parties agreed that paragraph [84] should be omitted from the Statement of Facts.

Mr Yuen’s intentions and actions

1. The resolution of the murder charge by plea of guilty has not been straightforward, and has required an extended disputed facts hearing. It is necessary to explain the legal significance of one aspect of my findings.

1. Shortly after Mr Yuen pleaded guilty, his counsel proposed a description of the circumstances in which the shotgun was fired that the prosecutor saw as traversing the plea. The issue was resolved after amendments were made to the description of those circumstances. However, given my finding (at [63] above) that although Mr Yuen had already formed an intention to fire the shotgun to initiate the confrontation with Mr Welsh, the first shot may have been fired prematurely, it is appropriate to note that this “premature shot” situation would still fall within the requirements for the offence of murder.

1. That offence is set out in s 12 of the Crimes Act 1900 (ACT), as follows:

Murder

(1)    A person commits murder if he or she causes the death of another     person—

(a)    intending to cause the death of any person; or

(b)    with reckless indifference to the probability of causing the death of any person; or

(c)    intending to cause serious harm to any person.

(2)    A person who commits murder is guilty of an offence punishable, on conviction, by imprisonment for life.

(3)    In this section:

serious harm—see the Criminal Code, dictionary.

1. In each case, it is not necessary that the person killed was the object of the relevant intention, although I should say that in this case there has been no suggestion that Mr Yuen’s intentions, whatever they were, involved any person other than Mr Welsh.

1. For an accused to be found guilty of murder, it is necessary both:

(a)that the accused had one of the states of mind set out in paragraphs 12(a), (b) and (c) of the Crimes Act; and

(b)that the accused by a voluntary act caused the death of the deceased.

Mr Yuen’s state of mind

1. The prosecutor put the case against Mr Yuen in reliance on an intention to cause serious harm to Mr Welsh, and the existence of such an intention was conceded by the defence. That is the basis on which I shall sentence Mr Yuen.

Accidents and voluntary acts

Accident

1. There have been references in various contexts external to the court proceedings to Mr Yuen’s shooting of Mr Welsh as “accidental”.  

1. The concept of “accident”, or of “an event which occurs by chance”, is used in jurisdictions in which a Criminal Code originally enacted in the late 19^th or early 20^th century still operates (Queensland, where the Criminal Code is set out in the Criminal Code Act 1899 (Qld); Western Australia, where the Criminal Code Act 1913 (WA) is set out in the Criminal Code Act Compilation Act 1913 (WA); Tasmania, where the Criminal Code is set out in the Criminal Code Act 1924 (Tas)). That concept has been explained as referring to a consequence of an accused’s act that was “a consequence which was not in fact intended or foreseen by the accused and would not reasonably have been foreseen by an ordinary person” (Kaporonovski v The Queen (1973) 133 CLR 209 at 231; approved in R v Van Den Bemd (1994) 179 CLR 137 at 139).

1. In other jurisdictions the requirement to find an intention to perform a particular criminal act would generally preclude a guilty verdict on a charge founded on a consequence of an accused’s act that was not foreseen and could not reasonably have been foreseen by an ordinary person. 

1. There was no suggestion from the defence that the death of Mr Welsh was an unforseen and not reasonably foreseeable consequence of having a shotgun fired at him from a distance of about a metre, and nor could any such suggestion have been taken seriously in this case.

Was there a voluntary act?

1. On the other hand, some of the evidence given in the disputed facts hearing did reasonably raise the question whether Mr Yuen’s action in discharging the first and fatal shot was voluntary.

1. For the purpose of determining whether the act that resulted in the death of Mr Welsh was a voluntary act, I have directed myself in terms reflecting the direction that was approved by the NSW Court of Criminal Appeal in R v Katarzynski [2005] NSWCCA 72 (Katarzynski), in reliance among other things on the High Court’s approach in Murray v The Queen (2002) 211 CLR 193 (Murray) and Ryan v The Queen (1967) 121 CLR 205 (Ryan). Conveniently, all those cases related to deaths caused by shooting, where the accused admitted to having had the gun in his hand ready to be fired, and with his finger on the trigger, but claimed that the gun had discharged when he “flinched” in response to a lunge by the victim (Katarzynski) or, relevantly, by reflex or automatic motor action when the victim’s arm shot out or the accused was struck on the head (Murray) or when the victim made a sudden movement when the accused was trying to remove a cord from his pocket while he had the gun to the victim’s head (Ryan).

1. Before setting out the direction I have applied, it is useful to set out some of the comments made by members of the High Court in Murray about the “unintended” discharge of a loaded gun in circumstances where the gun was being used to threaten or control a person, or perhaps the situation, but not, allegedly, with any immediate intention of firing it.

1. In Murray v The Queen, Gaudron J at [2] to [3], described the facts as follows:

According to the evidence-in-chief of the appellant concerning the events leading to the death of Tony Celap, the deceased became verbally abusive whereupon he, the appellant, took a loaded shotgun from under his bed and approached the deceased with the gun in his right hand. As the deceased started to rise from a chair, the appellant lifted the gun to waist height, the deceased’s arm shot out and something hit the appellant on the head. The gun then went off. He said that he took the gun into the room where the deceased was sitting solely with the intention of frightening him so that he would leave the house.

In cross-examination, the appellant said that he might have cocked the gun but could not remember doing so. He admitted that he pointed the gun at the deceased and said that his finger “would have been somewhere around the trigger guard” and possibly on the trigger. He denied that he deliberately pulled the trigger.

1. Gummow and Hayne JJ in Murray referred to Ryan, saying at [41]:

As Windeyer J said in Ryan v The Queen, “[t]hat an act is only punishable as a crime when it is the voluntary act of the accused is a statement satisfying in its simplicity.” But as his Honour rightly pointed out, the answer to the question “[w]hat is a voluntary act” is far from simple: “partly because of ambiguities in the word ‘voluntary’ and its supposed synonyms, partly because of imprecise, but inveterate, distinctions which have long dominated men’s ideas concerning the working of the human mind”. As in Ryan, so too in this case:

“[t]he conduct which caused the death was ... a complex of acts all done by [the appellant] - loading the [firearm], cocking it, presenting it, pressing the trigger. But it was the final act, pressing the trigger of the loaded and levelled [firearm], which made the conduct lethal.”

Like Ryan, the appellant, being fully conscious, had put himself in a situation in which he had his finger on (or at least near) the trigger of a loaded firearm and which he levelled at another. In these circumstances, was there an issue for the jury about whether there was an unwilled act, or an event occurring by accident, that was an issue separate from the issue about the intention with which the appellant acted? The trial judge gave directions about accident and about intention, but gave no direction about unwilled acts.

1. In relation to the question of “unwilled acts”, their Honours said at [48]:

Consideration of the several cases in this Court in which questions about unwilled acts have been examined reveal some of the difficulties that, if not implicit in the concept of unwilled acts, at least are likely to arise in dealing with that concept. Prominent among those difficulties is understanding what is the relevant “act”, or in this case, the relevant “death-causing act”. Although it may now be regarded as clear that in this case, as in Falconer, the death-causing act was the discharging of the loaded shotgun, why is that the relevant “act” and what exactly does it encompass?

In deciding what is the relevant act, it is important to avoid an overly refined analysis. The more narrowly defined is that “act”, the more likely it is that there will be thought to be some question about whether the accused willed that act. Or, to put the same point another way, the more precise the identification of a particular physical movement as the “death-causing act”, the more likely it is that it will be harder to discern a conscious decision by the actor to make that precise and particular physical movement. As H L A Hart pointed out more than 40 years ago, a theory which splits an ordinary action into three constituents - a desire for muscular contractions, followed by the contractions, followed by foreseen consequences - is a theory based on a division quite at variance with ordinary experience and the way in which someone’s own actions appear to that person. As Hart said, “The simple but important truth is that when we deliberate and think about actions, we do so not in terms of muscular movements but in the ordinary terminology of actions.”

The difficulty of over-refinement can be exemplified by comparison of this case with the facts in Ryan. In Ryan, Windeyer J characterised what had happened as Ryan pressing the trigger “in immediate response to a sudden threat or apprehension of danger”. In this case, the appellant said that the weapon discharged immediately upon his being struck by something the deceased threw at him. There seems little, if any, relevant distinction between the two descriptions. Of both it may be said that:

“The latent time [between threat, or assault, and firing the weapon was in each case] no doubt barely appreciable, and what was done might not have been done had the actor had time to think.”

But to identify the “act” as confined to that which was the immediate physical movement, a dorsiflexion of the finger, made in response to a perceived threat, or in this case the alleged blow, so confines the time for choice by the actor as to invite the conclusion that the actor did the particular act without thought, and therefore without willing it. That is altogether too narrow a view of what is the relevant “act” which, in this case, would divorce the contraction of the finger from the admittedly deliberate pointing of a loaded and cocked weapon at the deceased and its discharge. So to confine the understanding of the relevant “act” would be to adopt an approach that over-refines the application of the criminal law, introducing nice distinctions that are not based upon substantial differences.

That is why the “act” to which s 23(1) refers is not restricted to the appellant’s contracting his trigger finger. But what is encompassed by saying that it is the appellant’s discharging the loaded gun that must be willed? It now seems clear from Falconer that the “element of intention” which Windeyer J (in both Mamote-Kulang v The Queen and Timbu Kolian v The Queen) said should be added to the notion of will may not always be helpful, but there is much force in the views expressed by Windeyer J in Ryan to the effect that the language of “will” and “intellect”, “unintentional” and “inadvertent”, is necessarily imprecise. As Barwick CJ said in Timbu Kolian, “we lack a sufficiently flexible and at the same time precise vocabulary in this area of discourse”. In the end, it must be accepted that the distinctions with which the cases grapple may be founded upon overly simple understandings of the way in which human beings act which are understandings that are not easily applied to cases at the margin.

In a case like the present, we do not think it useful to examine the problem by reference to presumptions that an act done by a person who is apparently conscious is willed or done voluntarily. Approaching the problem in that way may reveal which party must raise the issue to have it considered - the so-called evidentiary burden of proof. It may even help the tribunal of fact to decide what inferences can, or should, be drawn from evidence that the accused was conscious at the time of the act in question. But it is not an approach which tells the tribunal of fact how or when that tribunal may reach a conclusion contrary to the starting point provided by the presumption.

Appendix B – Statement of Facts (final)

1. [omitted]

2. [omitted]

Introduction

1. Yuen met Welsh in about 1998 when both were still in school. Sometime after they left school, Welsh started using drugs. Welsh eventually started selling drugs to finance his drug use, which eventually led to him serving a number of terms of imprisonment.

2. During this time Welsh formed a relationship with Rowena Turner and the couple had three children. Just before Christmas 2004, Welsh was sent to prison. Just after he was sent to prison, Rowena’s friend Stephanie Turner (no relation) moved in with her at 26 Falkner Place Macarthur in the ACT. Rowena Turner and Stephanie Turner and the three children all lived at this house during Welsh’s imprisonment.

3. On 12 September 2007 Rowena Turner took her own life by hanging herself in the bedroom of the house and Stephanie Turner discovered her body.

4. Yuen and Welsh remained close friends through all of this, and Yuen knew both Rowena Turner and Stephanie Turner as his friend’s partners. Yuen also knew Welsh’s three children.

5. After leaving school, Yuen completed an apprenticeship as an electrician and at that stage lived with his parents.

Other people of relevance

1. Other relevant parties include Brendan Prebble, Todd Elphick, Joshua Stephen, and Mick Berwick.  Those four and Yuen became friends.

2. Brendan Prebble met Yuen during, or shortly after the pair finished school and remained friends since that time.  Prebble operated a roofing business.  Todd Elphick worked for Prebble and through him met Yuen.  Prebble, Elphick and Yuen became close friends.

10.In 2009 Yuen’s parents moved to Melbourne and Yuen and Elphick decided to get a house together and moved into 6 Lowerson Place, Gowrie. Elphick’s girlfriend, Natasha Smith, also moved into the house.

11.Joshua Stephen was another friend of both Yuen and Elphick. Stephen was a family man with a partner and children. He also worked for Brendan Prebble, and became friends with both Elphick and Yuen.

12.[omitted]

13.This is a brief background as to how became friends. [sic]

14.The group including Yuen, Elphick, Prebble, Stephen and Berwick had regular poker nights at each other’s homes.

15.Elphick and Berwick were also friends with the deceased Brendan Welsh.

Cameron Ashcroft

16.Another casual associate of Yuen, Elphick and Welsh was Cameron Ashcroft. Ashcroft came to Canberra from Darwin in around 2007. Yuen’s nickname for Ashcroft was “Buddagarwin”. Both Yuen and Elphick knew Ashcroft as a person who regularly purchased drugs from Welsh.

History of firearms

17.When Welsh and Yuen were still friends, they exchanged firearms.  Welsh’s partner, Stephanie Turner, recalled that when the couple lived in Monash, between about April 2009 and June 2009, he had possession of two firearms. She describes one as a double barrel shotgun and the other as a rifle with a scope. At this time Welsh told Stephanie Turner they belonged to Yuen.  At her demand Welsh returned the firearms to Yuen.  It was this shotgun that Yuen used to murder Welsh. 

18.Both Yuen and Elphick attended the Majura Park Gun Club in Majura a number of times. Records obtained from the Gun Club show a number of entries for either Kai Yuen or K. Yuen on 4/3/09, 18/3/09, 21/3/09 and 1/4/09.

19.A prerequisite to shooting at the Gun Club is training in handling a firearm as well as firearm safety. Scott Gielissen also states he had been out shooting with Yuen in the bush.

20.On 22 April 2010, Cameron Ashcroft along with his friend Martin Kundert and Kundert’s girlfriend, Brooke Barnes, went to visit Elphick at 6 Lowerson Place, Gowrie. Brooke Barnes saw a shotgun lying on the floor behind or beside a couch. Kundert saw a shotgun lying on the floor behind the couch, and saw that the gun was cracked open and loaded with two red and gold coloured shells.

21.During a taped record of interview with Kai Yuen on 26 May 2010 Yuen admitted attending the Gun Club, and admitted being a good shot.

Berwick’s Car

22.In December 2009 Berwick and another friend, Scott Gielissen, decided to buy a Green EB Ford Falcon with South Australian registration VEZ 070 for $300. Berwick paid for the car, but didn’t have a licence so they agreed to register the car in Gielissen’s name.  For all intents and purposes, however, the car belonged to Berwick.

23.In early March 2010 Berwick loaned this car to his friend Elphick, as Elphick was having troubles with his own white Suzuki Vitara. To Elphick’s mind, at least, he was considering buying the car from Berwick.

Start of the disagreement between Yuen, Elphick and Welsh

24.Around this time, Welsh was driving a red Daihatsu Charade that belonged to a female friend and in March 2010 started having troubles with this car. About 20 March 2010 Welsh and Gielissen wanted to drive to Melbourne to sell a motorbike. Welsh’s Daihatsu Charade was in poor condition and couldn’t make the trip so Welsh and Gielssen asked Elphick if they could borrow the green Ford Falcon (referred to in [22]), again registered in Gielissen’s name but belonging to Berwick, and Elphick agreed.

25.Welsh drove to Yuen and Elphick’s house at 6 Lowerson Place Gowrie in the red Daihatsu. He left his red Daihatsu and took the green Ford Falcon. Elphick and Yuen believed this would only be for a few hours and left some of their belongings, including some spare house keys in the car. Welsh however understood this to be for an indefinite period, and was in fact discussing with Berwick, the prospect of swapping the car for his own White Commodore. 

26.When the car was not returned the following day, Elphick and Yuen started sending SMS messages to Welsh complaining that they needed transport to pay the rent and that the spare house keys were inside the car. When Welsh did not respond to the messages a disagreement started which quickly escalated.

The SMS exchanges

27.21/3/10 Yuen to Welsh – “Call me g”

28.26/3/10 Yuen to Welsh – (6:20am) “call me plz m8” (7:31am) “Shit go m8. U should know better”

29.26/3/10 Welsh to Yuen – (2:42pm) “II cal u tomorrow” (9:23pm) “Im not shore how things went pear shaped we dident steel it tody new we had it and said he dident need it any more so I waz going 2 swap 4 mine tha next day we just took 4 a test drive. i know we prob drove it bit further than we should but fuck I honestly thoug.ht it would not b playing out like this”

30.28/3/10 Yuen to Welsh – (4:32am) “Ur being an inconsiderate cunt. U have 2 sets of our house keys. We only have 1 set left. Don’t know why u and scotty have decided to be dogs but I need the fuckin keys back so Todd can lock the house up when I’m not here. We can’t afford to get robbed so I think todd callin the pigs if u don’t tell us how we can get em back soon. Call me. Stop being a dog” (4.39am) “What the fuck r u doin???? Has the crack got u that fucked. Just answer ya phone would ya. Just want the fuckin keys back.”

31.28/3/10 Welsh to Yuen – (4:51am) “I don’t know il go check it out scoot had em and he got arrested 4 threatening his ex girlfriend may b he took wit e mil get back 2 ya.”

Damage to Welsh’s Daihatsu Charade and retributive break-in at 6 Lowerson Place

32.Yuen and Elphick pushed the red Daihatsu Charade to a neighbouring yard then removed the front wheel nuts, and removed some items from the boot of the car including some stereo system components.

33.On 12 April 2010 Welsh attended 6 Lowerson Place Gowrie. When Welsh saw the condition of the car he broke into the house not realising Elphick was at home laying on the lounge. He then threatened Elphick and left. Yuen was at work when this happened and Elphick called him and told him what had happened. When Yuen found out about the break-in, the SMS exchange became more aggressive.

34.12/4/10 Yuen to Welsh – (2:09am) “U stupid cunt. Break into my house ey. It’s on cunt. Fuckin arm up. You’ll need it.”  [Emphasis added].

35.12/4/10 Welsh to Yuen – (2:10am) “Wel ya fucked my car” (2:16am) “U watch ya work van” (2.22am) “Everything waz fine now ya want fuck my car now u leave me no choice I got another car but do u?”

36.12/4/10 Yuen to Welsh – (2:23am) “I didn’t touch your car fuck head. If that’s the way you wanna be. if ya wanna blame me. See what happens. Your just as gutless as the bandis u week cunt. Go anywhere near my house or car and u know what’ll happen cunt. U started this shit. Now look how far ur takin it u idiot. U get wa u deserve scumbag.”

37.12/4/10 Welsh to Yuen – (2:26am) “Its on now I gunna do that every day and fuck ya car so u can’t work”.

38.12/4/10 Yuen to Welsh – (2:27am) “If the worst u can do is get my car and house than I’m not worried. I’m playing a different game. Your playing the weak cunts game. Cause that’s all u r. A real man would come sort it out. Like u should of in the 1^st place. Your just a scared little boy welsh. Ima take your threat seriously cunt.” [Emphasis added]

39.13/4/10 Yuen to Welsh – (10:08pm) “What wrong  ya big girl. Too scared to come get the car that u ditched on our lawn so u call a girl for help and get her to call the cops.now Who’s scared little crackhead drama queen dog. See ya soon Rowena.” [Emphasis added]

40.The last comment in the SMS exchange of 13/4/10 (10:08pm) was a reference to Welsh’s former partner, Rowena Turner, who as outlined at [5] committed suicide on 12 September 2007.

Further SMS exchanges

41.28/4/10 Yuen to Welsh – (2:06pm) “O no. U really r a scared Cunt aren’t ya. O well tell em if they wanna come for me they better be prepared to kill me. See ya soon ya weak little Bitch. Good luck getting ya m8 to Fight for ya you scared little crack head” (2:32pm) “Don’t just talk Shit this time then. Show me you got dash for once ya Bitch. Ill be waiting by myself for ya cause unlike you I Got heart and don’t need me m8s to Fight for me. So don’t disappoint you poor excuse of a man. Stop talking crack Shit and come see me. With or without ya buddys. I don’t give a Fuck. I Got something for ya ya girl.” [emphasis added]

42.28/4/10 Yuen to Welsh – (3:24pm) “Bitch. Where are ya ya girl. Ya all cracked Up talking Shit again aren’t ya. Tisk! Tisk! Im glad ya sent the msg before cause now im sure you’re a gutless, scared juckie. If threatenting me with your m8s or threatening my car and House ist he best you got than ya got nothing ey! Its comin welsh And when it does you’ll cry like the Bitch you are. I promise.” [Emphasis added].

43.28/4/10 Yuen to Welsh – (4:02pm) “Help me someone! My names Brandon welsh and im scared of this skinny little half asian named Kaiboy. I need some assistance. Ha Ha ya m8s must thin you’re the biggest Bitch ever askin for help to get me. I ain’t even hard. Fuck me you’re a Bitch. How do you look yaself in the mirror. Ha ha ha. And ya claim to be staunch. Your a disgrace. I feel sorry for ya kids having a hopeless Bitch of a dad like you. N ya havin another. Ha ha. Poor little feller. What ya gonna call it. Son of weak Cunt welsh. Ha ha”

Sunday 9 May 2010
Yuen’s group

44.On the evening of Sunday 9 May 2010, one of the regular poker games was organised, this time at Brendan Prebble’s house at 10 Main Close Chisholm. This was attended by Yuen, Elphick, Prebble and Stephen.

45.Prebble dropped his son off at his former partner’s house about 6:30pm and picked up Stephen and returned to the house. Yuen and Elphick drove to Prebble’s house in Elphick’s White Suzuki Vitara sometime later.  Michael Berwick was there briefly but left quite early.

Welsh’s group

46.Brendan Welsh’s day was unremarkable, and there is no evidence of any further acrimonious SMS exchange with Yuen. Welsh was driving his Maroon VS Commodore (ACT registration YGN 18D) on the day.

47.That evening, Welsh received a text message from a person wanting to buy some cannabis and left his Watson flat to attend to this. Phone records show Welsh sending and receiving a number of SMS messages between 6:24pm and 6:29pm.Two of these SMS messages were from Adam Stewart. Shortly after this he left his home at Watson.

48.Welsh had phone contact with a friend named Susan Wilkinson who also went by the name Tazmin. During this call Welsh asked Wilkinson if she wanted to go for a drive to do some tasks and she agreed. Welsh then picked her up and the pair drove to a service station in Fyshwick and put petrol in the car, and then drove to Car Lovers at Erindale, where Welsh washed the car, including the engine.

49.The pair drove to Stewart’s Isabella Plains home and asked him if he wanted to go for a drive and he agreed, taking his puppy with him. Stewart got into the back of Welsh’s Maroon Commodore; Wilkinson was in the front seat and the group drove off.

The trigger for the shooting

50.Welsh was driving his Maroon Commodore with Wilkinson in the front seat, Stewart and his puppy in the rear seat. The group drove to Yuen’s house at 6 Lowerson Place Gowrie, where Welsh picked up a wheel brace, got out of the car and threw it through the window of Yuen’s white work van saying “cop that you fucking dog”. He returned to the car and told Stewart and Wilkinson “I always terrorise these cunts” before doing a burnout and driving away.

51.After Welsh threw the wheel brace through Yuen’s van window, an unknown person called Yuen and told him what had happened. Phone records show Yuen received a call at around 9:09:45pm, shortly after this at 9:11:38pm Elphick made a call to their Lowerson Place Gowrie unit.  At this time, Yuen, Elphick, Stephen and Prebble were still at Prebble’s place playing poker.

52.Yuen became furious after receiving the call. Yuen ordered Elphick, Stephen and Prebble to get into Elphick’s white Suzuki Vitara. Elphick drove with Stephen in the front passenger seat, Prebble and Yuen sat in the back seat, to 6 Lowerson Place Gowrie.

53.When they got to 6 Lowerson Place Gowrie, Yuen saw the broken window and became enraged.  He went inside the house and came out holding a double barrel shotgun, and was in possession of six rounds of ammunition.  This was the gun, earlier referred to at [17] and [20], that he later used to murder Welsh.  He told the group to get in the car and come with him.

54.Because Elphick’s white Suzuki Vitara had a loud exhaust they got into a Black Kia (ACT registration YCR 59G). This car was owned by Elphick’s girlfriend, Natasha Smith, but registered in her mother’s name. Prebble and Stephen asked Yuen to settle down, however he was still enraged and didn’t respond.

55.The group drove to the Woolworths Service Station in Erindale and got petrol. They then drove across Canberra to Welsh’s unit, Unit 40, Block F, Windeyer Court Watson. They drove past the unit slowly and stopped. When they saw there were no lights on, they drove away.

56.The group drove to McDonalds in Dickson and purchased some food and in Prebble’s and Stephen’s views, Yuen appeared to calm down a little, and they were hoping they would all just return to the card game.

57.When they finished their food, however, at Yuen’s request, they drove back to Welsh’s Watson flat to see if Welsh had returned. The lights were still out, and Yuen suggested that Welsh would know not to return there knowing Yuen would be after him, and suggested they needed another plan.

Ashcroft becomes involved

58.Late on 9 May 2010, Yuen told Elphick to ring Ashcroft and ask him to call Welsh under the pretence of purchasing some drugs from him, with the intention of luring Welsh to an accessible location.  Elphick called Ashcroft at 10:28:52pm, 10:57:14pm and 11:02:32pm to organise this.

59.Ashcroft was at McDonald’s Braddon with some friends, so Yuen’s group drove there to meet Ashcroft. Elphick went to the car Ashcroft was sitting in and Ashcroft got out of the car and got into the car with Elphick, Yuen, Stephen and Prebble, and the group drove off.

60.Yuen told Ashcroft to “ring that cunt and tell him you want a couple of points”. Ashcroft said he couldn’t do it without money and Yuen asked Elphick to lend him $400 until he could pay him back. Elphick handed the money direct to Ashcroft. Yuen was still angry, saying words to the effect “he fucking smashed my window that cunt”.

61.The original plan was to lure Welsh to the Hughes Ovals off Webster Street Hughes. There is a toilet block on an access road which was quiet and out of the way.

The lure

62.The group drove to the front of Hughes Shops on Wisdom Street, where Elphick parked near a pay phone at the front of the IGA.  Ashcroft got out of the car and went to the payphone, then came back and told Yuen and Elphick he couldn’t use that phone, as it was not working.

63.The group drove to Garran shops where Elphick parked at a payphone.  Ashcroft got out again and used the payphone. Phone records show a call being made from the Garran Shops to Brendan Welsh at 11:36:10pm.  Ashcroft returned to the car and told the group Welsh would meet them at the Hughes ovals.

64.Elphick drove to the Hughes Ovals where Elphick parked next to the toilet block on the access road off Webster Street. Yuen and Ashcroft both got out of the car, Yuen with the loaded shotgun in his hands. After Yuen and Ashcroft got out of the car, Elphick drove back onto Webster Street, turned into Coxen Street, did a u-turn and parked on the side of the road to wait.

65.At 11:43:34pm, Welsh phoned Ashcroft  and said he would now meet him at the back of Hughes shops.  Ashcoft got back into the car and Elphick drove back to the toilet block off Webster Street where Yuen was waiting. They told Yuen of the change of plans and he got back into the car, still holding the shotgun and the group drove off.

66.Elphick drove back onto Webster Street, turned right onto Groom Street, turned right onto Whittle Street and drove along Whittle Street past the back of the Hughes shops. He did a u-turn at Conyers Street, came back along Whittle Street and parked behind Hughes Shops.

67.Ashcroft got out of the car again, and Elphick drove back down Whittle Street, turned left on Groom Street to Wark Street. He did a u-turn and drove back down Groom Street parking next to the Hughes Primary School. Yuen got out of the car again carrying the gun and directed Elphick to wait saying something like “Go down the road and fucking wait for me”.

68.Ashcroft made a number of calls to Welsh from another payphone at Hughes at 11:52:51pm, 12:15:14am and 12:15:38am, and Welsh made a return call to Ashcroft at 12:17:56am lasting 11 seconds. These calls were made between Ashcroft and Welsh to confirm a location at Hughes Shops where they would meet and when. During one of these calls, it was agreed to meet at the rear of Hughes Shops in Whittle Street.

69.At 12:19:06am Elphick called Ashcroft to warn him that a car was approaching.  After this call Ashcroft sat in the gutter on Whittle Street on the Hughes Shops side of the road and Yuen hid in the shadows close to him and the two waited for Welsh to arrive.

Welsh’s movements leading up to this point

70.As previously mentioned at [50], Welsh drove past Yuen’s house at 6 Lowerson Place Gowrie at around 9:10pm with both Stewart and Wilkinson in the car. Welsh stopped and smashed the window of Yuen’s van, before doing a burnout and driving off.

71.During the evening, Welsh’s Commodore broke down and he borrowed a Hyundai Excel from Stephen Brandon.  Later the group, consisting of Welsh, Stewart, Wilkinson and the puppy, were driving in the Hyundai when Welsh received the phone call from Ashcroft.  As noted at [63], this call was made from Garran Shops at 11:36:10pm. Welsh told Ashcroft that he would not be long.

72.Ashcroft asked Welsh to meet him at the Hughes Ovals but Welsh appears to have mistakenly understood the plan was to meet Ashcroft at the Hughes Shops and drove there. When he could not find Ashcroft, Welsh called Ashcroft to ask where he was. At this time, Ashcroft and Yuen were at the toilet block off Webster Street, and Yuen was out of the car with the shotgun.

73.Whilst speaking to Ashcroft on the phone, Welsh said to Stewart, “he says he’s at some ovals near an alleyway” and Stewart responded “I don’t know any fucking ovals”. Welsh then told Ashcroft to “Go to the shops or somewhere where you know where you are and ring me back”.

74.Welsh then drove back to Weston Creek.  Welsh then received the call from Ashcroft telling him that he was now at the Hughes shops. As discussed at [68], that call was made from the payphone at Hughes Shops at 11:52:51pm. Welsh told Ashcroft “OK sweet I will be there soon” and told Stewart “He’s at the back of the Hughes Shops now”. Welsh then drove from Weston Creek back to the Hughes shops.

75.As discussed at [68] before en route, Welsh received a number of further calls from Ashcroft. Call records show two further calls being made from the Telstra Payphone at Hughes shops at 12:15:14am and 12:15:38am. Welsh approached Hughes shops from Kent Street and drove to the front of Hughes Shops on Wisdom Street. This would have taken Welsh past the end of Groom Street, and likely, given the darkness, in sight of Elphick parked further up Groom Street and facing in that direction. As discussed, Elphick made a 7 second call to Ashcroft at 12:19:06am. The Crown say this is consistent with Elphick warning Ashcroft of an approaching car.

The shooting

76.About 12:20am on Monday 10 May 2010 Welsh turned into Whittle Street Hughes, the street behind Hughes shops with Adam Stewart and Susan Wilkinson in the car.  Brendan Welsh was driving, Adam Stewart was in the front passenger seat, and Susan Wilkinson and the puppy were in the back seat.

77.Welsh saw Ashcroft sitting in the gutter, and pulled up on Whittle Street facing towards Groom Street on the wrong side of the road.  Ashcroft approached the driver’s side window: Welsh told him to get into the rear passenger side. At this point Wilkinson turned to pick up the puppy and Stewart turned around to his left to open the door.

78.Yuen ran towards the driver’s door with the gun loaded and ready to fire (including that the “safety” was off).  He had a finger on each trigger.   He was holding the gun with two hands, close to the horizontal, and therefore aiming at what would have been roughly head height for a person sitting in the driver’s seat.  Yuen intended to begin the confrontation with Welsh by firing the shotgun.  As Yuen approached the driver’s door, the gun discharged, sending shot through the window and into Welsh’s chest on a trajectory that was not far below horizontal.  The gun discharged either as a result of Yuen’s deliberate application of pressure to the trigger or prematurely as a result of Yuen tightening his right-hand grip (in response to a slight movement of the gun when Yuen released his left hand from the gun barrel) and thereby applying sufficient pressure to the trigger to discharge the weapon.  Yuen pulled the second trigger and discharged a second shot, which went through the edge of the driver’s door and through the “B” pillar between the front and rear side doors at roughly head height for a person sitting in the car seat.  Ballistic analysis suggests these shots were less than a metre from their target when fired.

79.Each shotgun shell contains nine pellets, with paper wadding in between. The nine pellets discharged from the first shot struck Welsh and travelled into his chest cavity resulting in a pneumothoraces, bilateral haemothoraces (blood and air getting into the chest) , and extensive injuries to both lungs, laceration of the right ventricle, pulmonary artery and pericardium of the heart along with extensive sternal and rib fractures before exiting in the region of the left shoulder. All of the pellets were located either in the wound or the clothing of Welsh. In the opinion of Dr Linda Iles, the Forensic Pathologist who carried out the autopsy, the extensive injuries made death both rapid and inevitable.

80.Most of the shotgun pellets from the second shot were absorbed by the “B” pillar, however, crime scene investigator Aniela Mundy also located some on the roadway and the passenger footwell.

The shotgun

81.Ballistics examination was conducted on the Armi Bettinsoli double barrel shotgun used to kill Brendan Welsh. The shotgun is described as an under and over 12 guage shotgun, with two barrels sitting one above the other (as opposed to side by side).

82.As noted at [52], Yuen was in possession of the shotgun and 6 live shells. Each shell was a Winchester 12 gauge shotgun shell containing nine 00/SG size lead pellets. Each led pellet is 8.4mm in diameter, and weighed 3.5g.

83.The shotgun is equipped with two triggers, one being in front of the other. Pulling on the front trigger discharged the shell in the bottom chamber, and the rear trigger discharged the shell in the top chamber.

84.[omitted]

85.When a shot is fired, the nine pellets discharge and spread out over a broad area, unlike a single bullet with a single trajectory. Ballistic analysis of the spread of pellets both in the body and the “B” pillar suggests both shots were fired within a metre of the point of impact. The basis for this is that all nine pellets were still relatively contained at point of impact.

After the shooting

86.Immediately after the two shots, Ashcroft remained in the car. Stewart, fearing the gunman was still beside the car, leaned over and turned the ignition key. Because the car was still in gear, this caused the car to jolt forward with each rotation of the starter motor, moving the car a distance along Whittle Street and veering left before coming to rest about 20 metres from where the shots were fired.

87.Stewart rang the ambulance and under their direction, directed Ashcroft and Wilkinson to get Welsh out of the car and begin CPR. This is clearly picked up on the recording of the 000 call.

88.Elphick heard the gun shots and drove back towards Hughes Shops, doing a u-turn at Whittle Street. He heard Yuen yell “Oi, what are you doing.” Elphick stopped and Yuen got into the back seat of the car still holding the gun and wearing a black mask. Stephen heard Yuen say he had shot someone but didn’t know if it was “him” or “the right person”, that he thought he had killed him, and that he had to get rid of the gun.

89.Yuen told Elphick to drive and said he needed to find a drain to get rid of the shotgun.

90.Elphick sped off along Groom Street, and turned right into Curruthers Street while Yuen broke the gun into two parts. Elphick turned left on Denison Street and Yuen told Elphick to stop next to a drain. When Elphick stopped Yuen opened the rear passenger door and threw the shotgun, the two spent shells and the four live shells down the drain, and Elphick sped off again. Later searches located the shotgun in a drain on Denison Street Deakin, with one spent shell stuck in the breach, one spent shell loose, and four live shells in the drain. Yuen told Elphick to drive off down Denison Street.

91.At this time Sergeant Paul Mothersole was driving west on Strickland Crescent Deakin, when he saw the Black Kia driving fast, north along Denison Street and pulled the car over. He noticed a number of people in the car but only spoke to Elphick, who was driving. He questioned him briefly about the ownership of the car, and Elphick told him it was registered to his girlfriend’s mother, Champika Smith. He produced a valid ACT Drivers Licence in the name of Todd William Elphick, 6 Lowerson Place Gowrie, date of birth: 19 May 1986, and Sergeant Mothersole satisfied himself the picture matched Elphick.

92.Sergeant Mothersole returned to his police car to do a driver check on the radio and asked Elphick to wait. Whilst Sergeant Mothersole was at the police car, Yuen said “I’m fucked, I’m going to get 20 years for this – you wait, in one minute there will be another five cop cars”. As Sergeant Mothersole was conducting the driver check, a radio call advising of the shooting and requesting police attendance came over the police radio. At this point Sergeant Mothersole did not realise the connection and prioritised attendance at the shooting. He returned to the car and gave Elphick his licence back and warned him to slow down then returned to his car and drove to the Hughes shops shooting scene.

93.Elphick, Yuen, Prebble and Stephen drove away, slowing briefly along the way where Yuen threw an article of clothing from the car. They returned to Prebble’s house where they resumed the game of poker. Yuen started drinking harder alcohol, and said “This is probably the last time I will see you boys – I shot Welshy – you are never to speak a word of it, nobody, not even your girlfriends”.

94.After approximately 20 minutes, Elphick, Yuen and Stephen left. Elphick and Yuen dropped Stephen home, and warned him to take this to his grave, then returned to their house at 6 Lowerson Place Gowrie.

95.Ashcroft was arrested at the scene in the early hours of 10 May 2010. He was questioned at the scene then taken back to Woden Police Station where he was again questioned at 4:19am. He provided forensic samples at 8:54am. Ashcroft provided a false statement of the events to police and was released without charge.

The police investigation

96.Police set up a crime scene and collected and examined a number of items. Police later located the shotgun broken into two, one spent shell in the breach, one loose spent shell and four live shells in the drain in Denison Street.

97.Forensics analysis of the shotgun revealed DNA consistent with a reference sample taken from Yuen on the interior of both barrels at the muzzle end, the interior of both barrels at the breach end of the weapon, as well as the exterior of the stock.

98.Ballistics examinations were conducted on the Armi Bettinsoli double barrel shotgun located in the drain in Denison Street Deakin as well as the shells.  Both the live and spent shells were found to be a Winchester 12 gauge containing nine 00/SG size lead pellets.

99.A post mortem medical examination on Welsh revealed four intact pellets and one pellet broken into two parts within the wounds. Two further pellets were located within clothing removed from the deceased and another two were located on the floor in the hospital below the body having fallen from the clothing, accounting for all nine pellets. Further a number of pellets were located on the ground at the shooting scene and in the passenger floor well of the Hyundai Excel (ACT registration YGN 62L) from the second shot. All pellets were of the same 00/SG size as those from the spent shell and in the live shells.

1. Wadding or buffer material from a fired shell matching the type in the unfired shell was also found on the deceased body, and a second wadding on Whittle street.

2. Joshua Stephen stated that when Yuen returned to the car after the shooting, he was wearing a mask.  A search of the Black Kia (ACT registration YCR 59G) (which was driven by Elphick on the night) conducted on 13 May 2010 located a black Zaw facemask in the boot of the car.  Subsequent forensic analysis located DNA consistent with Yuen on four hair strands found in the Velcro tab on the face mask.  Further forensic analysis revealed gunshot residue on the mask. The analysis revealed strong “characteristic” positive reading, containing all of the mineral components of gunshot residue.

3. Forensic samples taken from the Black Kia YCR 59G, the car used in the murder were taken by Gemma Louise Payne. A number of tape lifts revealed positive “indicative” readings to gunshot residue, taken from the front handle and arm rest, seat belt, ceiling and floor well, as well as the rear door handle and arm rest and ceiling handle.

4. Early in the investigation police installed listening devices on Yuen’s phones and house.

5. At 2.30pm on 12 May 2010 Police arrested Ashcroft again.

6. Ashcroft was taken to Winchester Police Centre and again interviewed at 3:42pm and underwent more forensic procedures at 4:52pm before being arrested. His arrest was widely reported in the media.

7. At 6:04pm on 12 May 2010 Yuen attended the Woden Police Station where he provided forensic samples and answered a number of questions.

8. At 7:18pm on 12 May 2010, whilst Yuen was still at Woden Police Station, police executed a search warrant on the home of Yuen and Elphick at 6 Lowerson Place Gowrie. A second search warrant was executed on 14 May 2010.

9. At 10:31am on 17 May 2010 Yuen attended the City Police Station with his then lawyer Steven Stubbs, where he participated in a further forensic examination.

10. At 5:21pm on 26 May 2010 Yuen again attended the Tuggeranong Police Station to retrieve a work tool seized during the earlier search warrant and participated in further questioning, and police searched his work van, a white Toyota Hiace Van (ACT registration YGB 76W). During questioning Yuen volunteered information relating to the acrimonious SMS exchange between him and Welsh showing a relationship that was at first amicable but deteriorated as a result of a dispute over the Ford Falcon that Welsh took and failed to return. Police recorded this conversation as well as the content of the SMS exchange but returned the phone to Yuen to allow further monitoring. Yuen made admissions that he used two phones, the iPhone he had in his possession at the time, and a black Samsung. Yuen admitted that he used the same SIM card for both phones, and some messages were in both phones. Yuen undertook to attend the Winchester Police Centre after work the following day to allow Constable Raven to extract the SMS exchange from the phones, but didn’t attend.

11. During the search of the white Toyota Hiace van (ACT registration YGB 76W) police seized a silver metal wheel brace Yuen said he thought Welsh used to smash the window. The window had not been replaced and was boarded up.

12. At 5:32pm on 7 June 2010 police executed a third search warrant on 6 Lowerson Place Gowrie during which police seized the Apple iPhone and black Samsung containing the messages disclosed by Yuen on 26 May 2010. These phones were examined and the SMS messages were extracted. From these voluminous reports, Constable Raven produced a summary of the material in the form of a spread sheet of messages, dates and times of the SMS exchanges.

Prior to arrest

1. Pursuant to warrants, Police installed listening devices and and telephone intercepts and picked up a number of conversations that showed a guilty state of mind or constituted admissions by the prisoner.

2. At 3:00pm on 11 August 2010 Yuen was arrested by Constable Raven and Detective Senior Constable Rhynehart whilst driving his work van on Drakeford Drive Bonython. On that same day, Elphick was also arrested. Yuen was remanded in custody and has remained in custody since that day.

3. At 9:05pm on 11 August 2010 Brendan Prebble participated in a taped record of interview with police at his home at 10 Main Close Chisholm. During the interview he gave a complete account of the events leading up to, during, and after Yuen shooting Welsh.

4. Around this time, Brendan Prebble phoned Joshua Stephens, who had had very limited contact with any of the group since the shooting.  Prebble told Stephen that Yuen had been arrested, and that he should tell the police the truth.

5. On 12 August 2010 Joshua Stephen provided a full statement to police, outlining all of the circumstances leading up to, during and after Kai Yuen shot Brendan Welsh.

6. On 17 August 2010 Brendan Prebble supplemented his record of interview of 11 August and provided police with a full statement outlining all of the circumstances leading too, during and after Yuen shot Welsh.