R v Leedham - [2024] SASC 127

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)

R v LEEDHAM
Criminal Trial by Judge Alone
[2024] SASC 127
Reasons for the Verdict of the Honourable Auxiliary Justice Nicholson
5 November 2024
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - DEATH - EVIDENCE - WHERE NO BODY
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - COMMON PURPOSE OR JOINT CRIMINAL ENTERPRISE
In the early hours of 7 February 2019, the accused drove Michael Jeffery Purse and his then companion (“A”) to a unit in Kilburn (“the Kilburn unit”), which was occupied by three people known to the accused (“B”, “C” and “D”). The prosecution case is that the accused, with the assistance of the Kilburn unit’s occupants, assaulted Mr Purse including by binding him with tape, repeatedly punching and kicking him, stomping on him, attempting to strangle him, putting him in headlocks and stabbing him.
Thereafter, the prosecution alleges that the accused and C rolled Mr Purse’s body in a rug and placed it in the boot of a car, before embarking on a failed attempt to dispose of the body in a remote location. It is accepted that C later did so alone. Mr Purse’s body has not been recovered.
The accused, C and D were charged with the murder of Mr Purse contrary to section 11 of the Criminal Law Consolidation Act 1935 (SA). The accused was tried alone before a Judge sitting without a jury in accordance with the accused’s election made pursuant to section 7 of the Juries Act 1927 (SA).
The prosecution relies on the evidence of eyewitnesses (A and B), the truthfulness and reliability of which is challenged by the defence. In support of the defence contention, the accused gave evidence that Mr Purse attacked him in the Kilburn unit and in the course of a struggle, Mr Purse produced a knife and was accidentally stabbed. The accused’s evidence was that he departed the Kilburn unit when Mr Purse was injured but still alive.
The prosecution case depends on rejection of the accused’s account as being reasonably possible and acceptance beyond reasonable doubt of the account given by B of what occurred in the Kilburn unit.
Verdict
Murder of Michael Jeffery Purse – guilty.
Criminal Law Consolidation Act 1935 (SA) s 11; Juries Act 1927 (SA) s 7; Evidence Act 1929 (SA) ss 13, 34KA, 34P, 34Q, 34R, referred to.
Zoneff v The Queen (2000) 200 CLR 234; Edwards v The Queen (1993) 178 CLR 193; MDM v The Queen (2020) 136 SASR 360; Royall v The Queen (1991) 172 CLR 378; R v Hallett [1969] SASR 141; Miller v The Queen (2016) 259 CLR 380; Mitchell v The King (2023) 276 CLR 299; Likiardopoulos v The Queen (2012) 247 CLR 265; R v McCarthy [2015] SASCFC 177, considered.

R v LEEDHAM
[2024] SASC 127
Criminal: Trial by Judge Alone
NICHOLSON AJ.
Introduction

Mark-Bry Andrew Leedham stands accused of having murdered Michael Jeffery Purse. He stood trial before me sitting without a jury.
In the early hours of 7 February 2019, the accused drove Mr Purse and his then companion, [redacted] to whom I will refer as “A”, in a Mazda vehicle borrowed from a friend, to a home unit in Kilburn (“the Kilburn unit”). The Kilburn unit was occupied by [redacted] to whom I will refer as “B”, [redacted], to whom I will refer as “C” and [redacted], to whom I will refer as “D”. At the time, B was a longstanding friend of the accused, C was her then domestic partner well known to the accused and D who also was known to the accused had recently been released from prison.
Soon after the arrival of the accused, Mr Purse and A, a physical altercation involving Mr Purse took place. Mr Purse suffered, inter alia, a knife wound to the abdominal region. There is no evidence or record of Mr Purse or of his body, if deceased, having been heard from or seen since the early hours of the following morning, 8 February 2019. The evidence of the investigating police officer, Blake Horder, which I accept, was to the effect that, since that morning, there had been no activity associated with Mr Purse’s known email addresses or his bank or Centrelink accounts. In fact, banking and Centrelink checks revealed no transactions on Mr Purse’s accounts have been conducted since 30 January 2019.[1] Police also had not found any evidence of communications between Mr Purse and family or known friends and associates after 7 February 2019.[2] There has been no activity on Mr Purse’s mobile phone since it was disconnected from the network at 3:40 am that day. At no time thereafter has the phone reconnected to the network.[3]
[1]    Exhibit P1, agreed fact 47.
[2]    T62.
[3]    Exhibit P1, agreed fact 16.5 (table).
It is not necessary to know of the whereabouts of Mr Purse’s body, if he is deceased, in order to establish a charge of murder. However, a finding beyond reasonable doubt that he is deceased is, of course, an essential element of that crime. I will return to this issue once I have reviewed all of the evidence. The prosecution bears the onus at all times to prove, as against the accused, each element of the crime of murder beyond reasonable doubt. As a corollary, the accused enjoys the presumption of innocence unless and until the prosecution were to prove its case.
By Information filed in this Court on 30 March 2022 the accused was charged, with C and D as co-accused, as follows.
Statement of Offence
Murder. (Section 11 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[D], Mark-bry Andrew Leedham and [C] on the 7^th day of February 2019 at Kilburn, murdered Michael Jeffery Purse.
I have conducted this trial as a Judge sitting alone, that is, without a jury, in accordance with the accused’s election made pursuant to section 7 of the Juries Act 1927 (SA). As such, I am the arbiter of all issues of law and of fact. Only the trial of the accused has proceeded before me. Ordinarily, as the trier of fact, I would not speculate as to the reasons why C and D were not tried at the same time or perhaps at all. However, I am aware that both have pleaded to and been sentenced for a lesser charge. I know nothing about the bases of the pleas, the sentences imposed or the factual bases of and reasons for those sentences. As far as this trial of the accused is concerned, I have had no regard to the facts of which I do know – that C and D have each pleaded to a lesser charge and been sentenced for that lesser charge.
I have considered all of the evidence and all of the parties’ written and oral submissions. The fact that I do not expressly refer to a piece of evidence or a submission does not mean that I have not read and considered it.
The prosecution factual case in brief
A substantial amount of evidence was adduced by the prosecution concerning the nature of the relationship between the accused and Mr Purse during the weeks or so leading up to the events of 7 February 2019. The evidence was led as explanatory background and in an effort to demonstrate hostility by the accused towards Mr Purse and a motive to violently attack Mr Purse at the Kilburn unit. However, whether or not such a motive were to be established, the prosecution case is reliant on the eyewitness accounts of events said to have taken place in the early hours of 7 February 2019 given by B and, to a lesser extent, A as well as the evidence of two farmers, Todd Baker and David Williams.
The prosecution also adduced evidence from the investigating officer, Mr Horder, Detective Ann Schaefer and Brevet Sergeant David Marsh, an intelligence officer with limited expertise in analysing telephone records data. Their evidence was of a relatively formal nature and largely uncontested. I accept their evidence as truthful and reliable. I will refer to it, as and when necessary. The following summary of what the prosecution contended occurred in the Kilburn unit is taken largely from B’s evidence.
Soon after arriving at the Kilburn unit, the accused attacked Mr Purse, unprovoked; he initially punched Mr Purse twice, after which he called out for “tape”. A roll of duct tape which was grey or silver grey in colour was provided to the accused. The accused then bound Mr Purse’s hands together at the wrists in front of him. He also put tape across Mr Purse’s mouth and eyes.
The accused continued to assault Mr Purse. At one time during the assault, D emerged from his bedroom and stomped very hard on Mr Purse’s chest while he was lying on the loungeroom floor, calling him a “fucking dog” before returning to his bedroom. The accused put Mr Purse into a headlock and grabbed a set of white headphones, the cord of which broke as he tried to strangle Mr Purse with them. During this assault, Mr Purse attempted to fight back with some success. He was a bigger man than the accused. The accused ran out of the Kilburn unit and immediately returned. Soon after he returned, it became apparent to B that Mr Purse had suffered a stab wound to the abdominal region by a knife with a blade about three to four inches long. There was a lot of blood which splattered around the loungeroom and its furniture as Mr Purse flailed about.
After the stabbing incident, C who had been outside apparently tending to his car during much of the altercation, returned inside. The accused, with C joining in, continued to assault Mr Purse. Both kicked and punched Mr Purse to all parts of his body and to his head. Mr Purse was wailing loudly and struggling. At this point, C told B who had been watching, to turn away. She did so and, very soon thereafter, the wailing and struggling stopped. When B turned around, Mr Purse was on the floor, he was still except for his feet that twitched for a brief period before stopping.
C and the accused then rolled Mr Purse’s inert body in the loungeroom floor rug, carried it out of the Kilburn unit and placed it in the boot of C’s car, a green Daewoo (also referred to in the evidence as the original Daewoo)[4] and drove off. The only other man in the Kilburn unit at the time was D, who was subject to home detention conditions with electronic monitoring. Monitoring showed that he did not leave the Kilburn unit between 12:01 am and 3:00 pm on 7 February 2019.[5]
[4] For reasons later explained.
[5] Exhibit P1, agreed facts 36 and 38.
C’s car travelled to Wild Horse Plains with, by inference, the intention of its occupants being to dispose of Mr Purse’s body in a remote area. At a time after 4:54 am[6] but before about 7:00 am,[7] the original Daewoo became bogged on or near Sandy Brae Road.
[6] Exhibit P1, agreed fact 25.1.
[7] T382-383, T391.
The accused and C were unable to free the car. They obtained the help of two farm workers, Todd Baker and David Williams, who pulled the car out with a utility. Both gave suitably qualified evidence concerning their recollections which included descriptions of the two men in the original Daewoo. I accept the evidence of each of them as being honest but, as further discussed later in these reasons, not always reliable.
The original Daewoo was photographed by a Safe-T-Cam travelling south on Port Wakefield Road, Mawson Lakes at 8:28 am.[8] I infer[9] that the car was on the return journey from Wild Horse Plains. Assuming no or minimal diversions, it would have arrived at the Kilburn unit at or about 9:00 am.
[8] Exhibit P1, agreed fact 25.2.
[9] In reliance on agreed facts 25.1 and 25.2 in exhibit P1 and the evidence of Messrs Baker and Williams.
Having returned to the Kilburn unit with Mr Purse’s body still in the boot of the car, both C and the accused were observed by B and A to enter the unit. After a short time, the accused left to return the borrowed Mazda to his friend. However, at 9:37 am the accused, as driver and sole occupant of the Mazda, was involved in a motor vehicle collision on Holbrooks Road, Flinders Park. The accused decamped before the police arrived. A still taken from CCTV, bearing the timestamp 9:41 am, shows the accused after leaving the Mazda on foot.[10] The accused was wearing a black or very dark coloured short sleeve T-shirt with some type of light coloured motif on the front, three-quarter length or scrunched or rucked up full length, light (bone) coloured chino type trousers and nothing on his feet.
[10] Exhibit P2, page 50.
The next day, 8 February 2019, at a time after 1:40 am but before 3:23 am, C left the Kilburn unit in the original Daewoo. He went to an unknown location where he disposed of Mr Purse’s deceased body.[11] Mr Purse’s body has not been recovered by the police. I note here that counsel on behalf of the accused, during closing oral submissions, conceded that Mr Purse was deceased by the time C disposed of his body.[12] The accused does not concede that Mr Purse had been deceased as at any earlier time, in particular, at or prior to the time of the first attempt to dispose of his body on 7 February 2019.
[11] Exhibit P1, agreed facts 25.3 and 39.
[12] Hence the reference to “deceased” in agreed fact 39.
Later in February, C and a friend of his, [redacted], to whom I will refer as “E”, undertook a somewhat elaborate procedure[13] to replace the original Daewoo by transferring its numberplates to another green Daewoo of the same model. The police have not been able to locate the original Daewoo.[14]
[13] Exhibit P1, agreed facts 28 to 33 are as follows:
28.     On 21 February 2019, [a person] posted a Facebook Market Place advertisement selling a green Daewoo, (“the new Daewoo”) (baring SA licence plates XUI 592). The new Daewoo was the same make and model and colour as the original Daewoo.
29.     On 26 February 2019, [C], in company with [E], purchased the new Daewoo from [that person] at Hallett Boulevard at Allenby Gardens.
30.     At some time between 26 February 2019 and 11 March 2019, the licence plates from the original Daewoo (WKJ 733) and rear spoiler were removed and placed onto the new Daewoo.
31.     MANPR records show the new Daewoo with registration plates (WKJ 733) on the following dates, times and locations:
31.1.11 March 2019 at 1:45:36pm on Grand Junction Road Wingfield; and
31.211 March 2019 at 1:47:58pm on Grand Junction Road Regency Park.
32.     On 29 June 2019, the new Daewoo was sold … . At the time it was sold, the new Daewoo was baring licence plates WKJ 733 and was sold with the registrations papers for the original Daewoo.
33.     On the same date, following the purchase of the new Daewoo, [the purchaser] sold the vehicle to …, an auto wreckers and dismantlers. The new Daewoo was then dismantled, the motor and gear box sold as parts, and the remainder of the vehicle sold as scrap metal.
[14] Exhibit P1, agreed fact 34.
Between 8 and 22 February 2019, B, C, D and E engaged in a number of activities aimed at cleaning the Kilburn unit and destroying various potentially incriminating items.[15] The accused was not involved in any of these activities.
[15] Exhibit P1, agreed fact 37.
The defence factual case in brief
The defence criticised the evidence of both A and B in a number of respects and contended that each witness was untruthful and, in any event, had given evidence that was unreliable. The prosecution’s factual case depends upon my acceptance, beyond reasonable doubt, of the essentials of the account given by B as to what occurred in the Kilburn unit and up to and including the first Wild Horse Plains journey. If I were to reject essential aspects of her evidence, as contended for by the defence, the prosecution case must fail.
Nevertheless, and in support of the defence contention, the accused gave evidence and put forward a quite different account of what occurred at the Kilburn unit, as summarised below. The accused was not obliged to give evidence. Had he declined to do so, as was his legal right, such could not have given rise to any inference adverse to him or the case he presented. The accused elected to give evidence and to expose himself to what became a lengthy and rigorous cross-examination. I must treat and assess his evidence in the same way as that of any other witness.
If, after considering all of the evidence and the submissions of both parties, I were to accept the accused’s account of events as being reasonably possible, the prosecution will have failed to prove its case beyond reasonable doubt. However, even if I were to reject part or all of the accused’s account, that would not be sufficient to establish guilt. In such a case, I would ignore and put to one side the rejected aspects of the accused’s evidence. However, the onus to prove its case beyond reasonable doubt always remains with the prosecution and I still would have to be satisfied beyond reasonable doubt of the truthfulness and reliability of the essential aspects of B’s account. It is conceivable that I might reject the accused’s account and also not be satisfied of B’s account in an essential respect, in which case the prosecution again would fail.
The accused said that he, together with Mr Purse and A, went to the Kilburn unit in the early hours of 7 February 2019. He knew all three occupants well. [Redacted]. The accused had three reasons for attending the Kilburn unit. He wanted to drop off a cut down shotgun (“shorty”) for C and B to store safely on his behalf. He also wanted to facilitate A, whom he understood to be a prostitute, being able to spend some time with D who had recently been released from prison having been deprived of female company. Of more immediate moment, the accused was a dealer and had agreed to supply methylamphetamine to Mr Purse; he had a supply of the drug stored, for safekeeping, at the Kilburn unit.
Soon after arriving and making introductions, the accused weighed from his supply an eight-ball[16] of methylamphetamine which he handed to Mr Purse. Mr Purse smoked some of the drug and complained about its quality. The accused did not react aggressively and tried to calm Mr Purse. The complaints became more aggressive in tone and Mr Purse lunged at the accused and punched the side of his face. The accused punched back twice, connecting with Mr Purse once. Mr Purse stumbled back and pulled a knife with a blade about three or four inches long out of his waistband. Mr Purse pointed the knife at the accused and demanded better drugs. The accused continued to try and calm Mr Purse insisting that the drugs were good but Mr Purse accused him of lying and remained very agitated.
[16] One-eighth of an ounce (3.54 grams).
A scuffle broke out. The accused grabbed Mr Purse’s wrists in an attempt to get control of the knife. During this scuffle, with Mr Purse still holding the knife, the two men fell to the floor and the knife entered the area of Mr Purse’s abdomen.[17] At no time prior to the wounding did the accused hold or have control of the knife and he did not deliberately or knowingly cause or intend for the knife to enter Mr Purse’s body.[18] The accused said that, at all times, he was taking defensive action and that Mr Purse’s stab wound occurred in that context and, in any event, was accidental.
[17] The accused said that it appeared to have entered the torso near the ribcage on the bottom righthand side; T472.
[18] T472.
The accused also specifically denied: that he had attempted to strangle Mr Purse with headphones; that he had put or attempted to put Mr Purse in a headlock; that he had kicked Mr Purse or punched his head or body when on the ground or at any time; and that he had asked for or used tape of any type to bind Mr Purse’s wrists or tape his face.[19]
[19] T473.

Soon after the scuffle started and Mr Purse had suffered the knife wound, C returned from outside the Kilburn unit[20] and expostulated “what the fuck”. The accused replied “I’m done” and C said “go, I’ll deal with this fuck head”. The accused explained that what he had meant by “I’m done” was that he was finished “dealing with [Mr Purse]” and with “having him in the unit waiting for [A] to finish [with D]”.[21]
[20] T474.
[21] T474.
At this time, Mr Purse was up against a wall, moaning.[22] The accused went to his car and left. He went to the house of a friend, “Michael”, who lived “a few streets over”, about “five minutes, tops” away. He went there “to relax [and] smoke drugs”.[23] The accused denied rolling Mr Purse in a carpet and driving to Wild Horse Plains.
[22] T474-475.
[23] T476.
The accused stayed at Michael’s house until Michael had to go to work which the accused “presume[d]” was about 7:00 am. He left to go home but stopped on the way at the Kilburn unit to pick up his phone which he thought he had dropped during the scuffle with Mr Purse.[24] Upon arriving at the Kilburn unit, the accused saw C and E arrive and get out of C’s car. When asked what time this occurred, he said “I’d say 7:15, if I left [Michael’s house] at 7”.[25] After leaving the Kilburn unit a little later, the accused had a car accident at Flinders Park at about 9:37 am.
[24] T478.
[25] T479.
The accused described his clothing worn on 7 February 2019 as cream three-quarter length chinos and a black shirt. He said he had left his thongs or slides in the vehicle when he left the scene of the accident at Flinders Park.[26]
[26] T454-455.
At 10:15 am on 7 February 2019, the accused sent a text, “hey mate” to Mr Purse’s phone.[27] At 6:41:22 pm the next day, 8 February, the accused made a voice call to Mr Purse’s phone[28] that was missed, that is, neither answered nor forwarded to voicemail. Nineteen seconds later, at 6:41:41 pm, the accused sent another text message to Mr Purse’s phone, “hey everything ok chuck me a call”.[29]
[27] Exhibit P7, entry 366.
[28] Exhibit P7, entry 430, T633.
[29] Exhibit P7, entry 431.
General directions of law
There is a general legal framework within which the factual disputes and the ultimate resolution of this matter must be determined. In this section I explain some relevant, more general, legal directions. I will refer to other directions of law as I proceed to set out my reasons.
Elements of murder
Leaving aside murder involving recklessness, and leaving aside for the moment the additional requirements for murder by way of joint criminal enterprise or extended joint criminal enterprise, in order to secure a conviction for murder the prosecution must prove, beyond reasonable doubt, each of the following four elements.
(i)The accused committed an act or acts that caused the death of Mr Purse.
(ii)The accused’s act(s), relied on by the prosecution, was (or were) voluntary and deliberate.
(iii)The accused, at the time of committing the act(s) relied on by the prosecution, intended to kill Mr Purse or to cause Mr Purse grievous (that is, really serious) bodily harm.
(iv)The killing of Mr Purse was unlawful.
The first element is squarely in issue: did the accused commit an act or acts relied on by the prosecution as having caused the death of Mr Purse, that is, did he stab Mr Purse with a knife and/or engage in other acts of violence, which stabbing or other acts caused the death of Mr Purse?
As far as causation is concerned, the prosecution must prove that the act(s) relied on by the prosecution as having been committed by the accused was or were a substantial cause of death. Any identified act does not have to be the sole cause, nor does death necessarily have to have been the immediate result. I expand on these notions later in these reasons.
There is no need to consider further the second and fourth elements in the context of the prosecution case. The conduct of the accused relied on by the prosecution was plainly voluntary, deliberate and unlawful. However, if the account propounded by the defence were to be seen as reasonably possible the questions of accident and self-defence will arise.
As far as the third element (specific intent) is concerned, the prosecution does not rely on reckless murder. It contends that the accused had a specific intention to kill or, at least, cause really serious bodily harm to Mr Purse, throughout the time he was assaulted.
In order to prove specific intent, the prosecution must adduce evidence of the surrounding circumstances sufficient to demand the inference beyond reasonable doubt that the accused had the requisite intention at the time he performed the act(s) which was or were a (substantial) cause of Mr Purse’s death.
Manslaughter by unlawful and dangerous act is a common law alternative to murder and must be left for the consideration of the trier of fact in any case where murder is alleged and manslaughter is open on the evidence. I remind myself of the alternative. It will be proved if all elements of murder were to be established except for the element of specific intent but I, nevertheless, were to be satisfied that the act or acts relied on and proved by the prosecution constituted unlawful and dangerous conduct.
Presumption of innocence and burden of proof
The prosecution bears an onus to prove each element of the charge it has relied on beyond reasonable doubt. The accused, at all times, is presumed to be innocent unless, following the conclusion of the trial, I, as the trier of fact, were to be satisfied beyond reasonable doubt of guilt. A reasonable doubt would be a doubt that, after my consideration of all of the relevant evidence and the parties’ submissions in the context of the applicable law, I am prepared to entertain. The accused has put forward a case in defence. He has cross-examined the prosecution witnesses, adduced evidence including by giving evidence himself and made submissions based on all of the evidence in the case. However, he was not obliged to have done so; he bears no onus of proof whatsoever.
Discreditable conduct
I must decide the case only on the evidence adduced at trial and must rely on that evidence only for the permissible uses for which it was admissible in accordance with the requirements of section 34P of the Evidence Act 1929 (SA) (“Evidence Act”).
Various aspects of the evidence adduced by both parties might be seen as putting the accused in a bad light. Much of this evidence is to be characterised as discreditable, as that term is deployed in section 34P. Section 34P is set out later in these reasons in my discussion of a particularly egregious example of discreditable conduct evidence. Very little, if any at all, of this type of evidence was expressly identified by the parties as discreditable or objected to at the time it was adduced, and at no time was I asked to undertake the analysis called for by section 34P. The evidence, effectively, was admitted by consent, sub silentio. However, many references to evidence of discreditable conduct and the improper use of such evidence have been made in the parties’ respective closing submissions, albeit, not to assert ex post facto inadmissibility but in order to circumscribe its use. Topics identified by the defence as potentially falling to be considered in accordance with sections 34P, 34Q and 34R of the Evidence Act include:
(i)Concern expressed by A for her safety and that of her family with regard to the accused. Arguably, evidence of this nature should not have been adduced, although it is difficult to see how A’s account could have been led without this anxiety (justified or unjustified) becoming apparent if only by inference. I have completely disregarded any evidence of this nature.
(ii)Evidence of the alleged assault at a home unit in Birkenhead (“the Birkenhead unit”) prior to the Kilburn unit incident. I deal with this evidence at some length later in these reasons.
(iii)Evidence by A explaining why she was initially reluctant to give a fulsome account to Detective Schaefer which by implication (only) may be seen to implicate the accused in discreditable conduct[30] (discussed later in these reasons). In the same vein, is evidence by A concerning the accused being outside her house, behaving in a threatening manner.[31] Neither of these topics, to the extent that they assert discreditable conduct, can be used and neither has been used to suggest that the accused was more likely, thereby, to have committed the charged offence. Nor have they been relied on to ascribe any particular propensity or disposition in the accused towards violent behaviour. The only permissible uses of this evidence are as part of A’s narrative to explain her state of mind and conduct and, given that the topics were introduced by the defence in cross-examination, to provide fodder for an attack on A’s credibility.
(iv)A gave evidence that during the evening of 7 February 2019 before the Kilburn unit incident, the accused forced her to have sex with him without her consent. This assertion of discreditable conduct was also adduced as part of A’s narrative of the events that night and as part of her explanation as to how it came about that she and the accused travelled to the Port Adelaide area that evening. I have not relied on this evidence for any use, such as propensity or tendency reasoning, proscribed by section 34P. Again, I have only relied on it as part of my consideration of A’s credibility.
(v)A also referred briefly to the accused having behaved badly towards A’s dealer,[32] and having attempted to lure people to a hotel room to rob them.[33] This was plainly inadmissible evidence that could have been but was not objected to. I have ignored it.
(vi)A and B gave evidence concerning the accused’s drug dealing conduct. This is evidence of discreditable conduct within the meaning of section 34P. The accused’s admitted conduct in this respect was an essential part of the prosecution narrative and case. It was relevant to the nature of the accused’s relationships with Mr Purse and others, particularly B and C. It also was relevant to the question of motive and the defence contentions based on Mr Purse having complained about drugs supplied by the accused. I have not relied on this evidence for any propensity or other use proscribed by section 34P.
(vii)B gave evidence of the accused having possession of and storing a shortened shotgun at the Kilburn unit. Indeed, the accused conceded possession of this item. To the extent that this was evidence of discreditable conduct, I can only repeat earlier matters. This was part of the narrative; on the defence case, one of the reasons for going to the Kilburn unit. I have not used any of the evidence at trial concerning the accused having had access to a firearm (for example, during the Birkenhead unit incident and during the robbery of a massage parlour, to which I will refer as the “Parlour”) for any propensity or other use proscribed by section 34P.
(viii)The accused volunteered in his evidence that he and Mr Purse had discussed being partners in a superannuation fraud or scam. It is debatable whether this is evidence that the accused “engaged in discreditable conduct”.[34] However, whether or not it is, to rely on it in any way as propensity or tendency evidence relevant to the charge of murder in this case would be risible. A possible permissible use is as evidence of the good or benign “relationship” between the accused and Mr Purse.
[30] T181.
[31] T181-182.
[32] T188 and T202.
[33] T188 and T228-229.
[34] Evidence Act 1929 (SA), s 34P(1) (my emphasis).
In each case just referred to, I am satisfied that the impermissible use of the evidence as defined in section 34P(1) can be kept separate from any permissible use, and ignored. I am satisfied that I have done so.
The prosecution also identified various topics of discreditable conduct evidence falling for consideration in accordance with section 34P. The following evidentiary topics were identified in the prosecution written closing address (there is some overlap with those identified by the defence):
(i)the accused engaging in the sale of illicit substances, including the trafficking of over a kilogram of methamphetamine from Victoria to South Australia;
(ii)the accused making violent threats to Mr Purse via text message;
(iii)the accused possessing and secreting firearms;
(iv)the accused assaulting Mr Purse at Birkenhead;
(v)the accused engaging in non-consensual sexual acts with A;
(vi)the accused committing the offence of robbery at the Parlour;
(vii)the accused facilitating A to engage in sex work; and
(viii)the accused planning to facilitate the theft of money from people’s superannuation accounts.
The prosecution provided written submissions concerning the available permissible uses in the prosecution and defence cases and the impermissible use that the trier of fact must not deploy. Those submissions with some qualifications by me and which, as such, I accept, are as follows.
(i)Much of this evidence was led in the defence case. The prosecution do not rely on any of that evidence for any propensity purpose. In particular, the evidence cannot be used to reason that just because the accused has engaged in discreditable conduct that he is more likely to have committed the charged offending.
(ii)In relation to the evidence of the accused engaging in the sale of illicit substances, in particular, the trafficking of over a kilogram of methamphetamine from Victoria to South Australia on 26 January 2019, the prosecution contend that this evidence can be used to show the origin of the animosity between the accused and Mr Purse, which is relevant to motive.
(iii)In relation to the evidence of the accused sending threatening text messages to Mr Purse and assaulting him at Birkenhead, this is evidence which can be used to show there was animosity between the accused and Mr Purse and is relevant to motive.
(iv)In relation to the evidence of the accused possessing and secreting firearms, this is evidence which is capable of supporting A’s account of the Birkenhead assault. It also demonstrates the trusting nature of the accused’s relationship with B, C and D such that it assists in explaining why the accused took Mr Purse to the Kilburn unit.
(v)In relation to the evidence of the accused engaging in non-consensual sexual acts with A at “Port Quays”, this is relevant to the chronology and goes to the state of mind of A including why she would feel obligated to comply with certain directions of the accused, particularly in the Kilburn unit after her boyfriend Mr Purse has been violently assaulted in her presence and why she continued to have contact with the accused following the events in the unit.
(vi)The evidence of the accused committing the offence of robbery at the Parlour, was led in the defence case. Its only possible relevance concerns A’s credibility.
(vii)The evidence of the accused facilitating A to engage in sex work was given by the accused, but denied by A. It is not relied on for any use on the prosecution case. It is relevant to the defence’s attempt to undermine the credibility and/or reliability of A.
(viii)The evidence of the accused’s plan with Mr Purse to steal from superannuation accounts also was led in the defence case. However, on the prosecution case, it is capable of supporting A’s account that Mr Purse commented, when his hands were bound in the Kilburn unit, about being “business partners” with the accused and thus not appearing to be concerned about events that had taken place to that point in time.[35]
[35] T161-162.
Again, I have kept permissible and impermissible uses separate during my considerations. I have not engaged in any form of propensity reasoning or used any evidence concerning criminal or otherwise discreditable conduct on the part of the accused by way of bad character or so-called bad person reasoning.
There is also the evidence concerning the accused and C leaving Mr Purse’s body in C’s car until C is said to have dumped it on the morning after the day of the Kilburn unit incident. This is evidence of discreditable conduct but it may not, strictly, be post-offence conduct on the prosecution case; it may be part of the alleged actus reus causal of death, depending on the time of Mr Purse’s death. I have not relied on it as tending to prove consciousness of guilt by the accused in relation to any of the events that occurred at the Kilburn unit.
Approach to assessment of witnesses
The witnesses who were called to give evidence were orally examined, cross‑examined and re-examined. B gave evidence with a screen between her and the accused in the dock. The accused could observe B at all times but she could not see the accused. A gave her evidence from a remote location using CCTV.I have reminded myself of the standard direction to be given to a jury as required by subsection 13(7) of the Evidence Act. I have observed that direction when assessing the evidence given by these witnesses.
I heard evidence without objection of a number of out of court statements made by Mr Purse who, I am satisfied (for reasons I will return to) is now deceased. They were admissible pursuant to section 34KA of the Evidence Act. Subsections 34KA(1) and (2) are in these terms.
(1)Subject to this section, in prescribed proceedings, a statement not made in oral evidence in the proceedings (an out of court statement) is admissible as evidence of any matter stated if—
(a)     oral evidence given in the proceedings by the person who made the out of court statement would be admissible as evidence of that matter; and
(b)     the person who made the out of court statement (the relevant person) is identified to the court's satisfaction; and
(c)     any 1 of the conditions specified in subsection (2) is satisfied.
(2)The conditions are as follows:
(a)     that the relevant person is dead;
(b)‑(e)       …
Proceedings for a criminal offence are within the definition of “prescribed proceedings” in subsection 34KA(8). Statements by Mr Purse fall within paragraph (2)(a) above. As far as any section 34KA statement is concerned, in accordance with the jurisdictional requirement in paragraph (a) of subsection 34KA(1) I have ignored any hearsay or otherwise inadmissible material contained in such a statement.
Motive for some witnesses to lie
The defence asserts that two of the prosecution witnesses, A and B, have lied to the Court and their evidence should be rejected. The defence cross-examined these two witnesses, particularly B, on the basis that they each had a motive to lie. I will canvass these challenges when I come to deal with the evidence in question. For the present, I remind myself of the following.
The absence of evidence of a motive to lie is neutral; some witnesses will lie for no apparent reason. The inability of the defence to adduce evidence of or to establish a motive to lie in a witness cannot add to or strengthen the verisimilitude of the evidence of that witness. However, a motive to lie where it exists can have substantial probative value in relation to the credit of a witness. I have taken into account any evidence in this case of a motive to lie when assessing the credibility and determining whether to accept the evidence of the witness concerned. However, the accused had no onus to prove a motive to lie. It is for the prosecution to prove guilt and to show each witness relied on to be credible and reliable. It is not for the defence to show the witness to be unreliable or to have lied.
Witnesses not called
Throughout this trial a very large number of persons, in excess of 45, were referred to, particularly by the defence, but were not called as witnesses. They included associates of the accused, A and Mr Purse, who were said to have been present at the Birkenhead unit, other associates and relatives of the accused, A, B and C, the man called “Michael” (not the deceased) E and a man called [redacted], to whom I will refer as “F”. I have not speculated about why any of these persons was not called to give evidence. I have not speculated about the evidence any such person might have given had they been called to give evidence. The reason why many of the persons referred to might have been relevant in any way to the issues in this case was only rarely, if at all, indicated.
Lies

Later in these reasons, I make findings that the accused was not always truthful in his evidence in court. I have found some of his evidence to comprise lies which I have taken into account when deciding whether to accept or rely on other aspects of the accused’s evidence. However, I have not relied on any of the accused’s untruthful evidence nor any of his proved conduct as demonstrating a consciousness of guilt.[36]
[36] Zoneff v The Queen (2000) 200 CLR 234, Edwards v The Queen (1993) 178 CLR 193.
The prosecution opening
In the defence written closing address, a substantial number of propositions put during the prosecution opening which ultimately had no, or only tangential, support in the evidence have been identified. Many are of a relatively minor and unsurprising nature. The defence has not made a submission as to what should follow from these failures to come up to proof. There is no jury that might have been misled. I have considered the various matters. None are such as to cause me any concern from a defence perspective with respect to the fairness of the prosecution case as presented. I have not relied on any prosecution contention that is not supported by evidence adduced.
Agreed facts
The parties agreed a number of facts that were reduced to writing.[37] I accept that these matters have been established and I make findings accordingly. I include in these reasons a number of mobile phone text messages, the content of which is not challenged. Consistent with modern practice, spelling, grammar and punctuation conventions were not often observed. Except for a few entries and where helpful for a proper understanding, I have endeavoured to quote this material precisely as it appears in the telephone traffic records.
The Kilburn unit prosecution witnesses
[37] Exhibits P1 and P12A.
A
A was examined and cross-examined for a lengthy period of time. However, her evidence that directly supported the prosecution case was of a very narrow compass: that the visit to the Kilburn unit was the last time she had seen or heard from Mr Purse; that the accused punched Mr Purse and bound his hands (only) with silver grey duct tape before she went with D into his bedroom; that, whilst in the bedroom, she heard a “horrible noise, like a wounded animal being killed”; that it was daylight when she first came out of the bedroom briefly at which time the only person present in the Kilburn unit was B; that, when she emerged a second time, it was daylight and she saw the accused and C enter the Kilburn unit together; and that the accused then left after less than an hour. Whilst not examined or cross-examined about E in this context, she made no mention of seeing E come to the Kilburn unit with C.
A was cross-examined at length about her pre-Kilburn unit conduct and her post-Kilburn unit conduct as part of a sustained credit attack. I have reviewed that evidence carefully; it is extensive and it is not necessary that I summarise all of it here. The nature of this evidence will be referred to during, or can be discerned from, the following discussion of defence criticisms bearing on her credit and reliability.
A was 31 as at February 2019. She had met Mr Purse and immediately thereafter commenced a relationship with him about a month or two prior to the Kilburn unit incident; thereafter, they did not spend a day apart. She had been working as a prostitute at the Parlour, although she maintained that when she took up with Mr Purse she ceased working there at his request.
Both A and Mr Purse were very heavy (daily) methamphetamine users. At this time, she was “very lost” and would sleep once a week or even every second week. It cannot be doubted that the reliability of A’s evidence, particularly as to its details and order of events, given five years later, would have been adversely affected. She gave this evidence.[38]
[38] T117-118.
Q.Can you explain in what way it affected your perception of time.
A.When you don’t sleep for weeks you forget what day it is, you definitely don’t know what month it is, like, and you very rarely care what time it is. You’re running on a different - you’re living in a different world.
Q.What about your perception of time periods, for example, your perception of what an hour feels like or what five hours feels like, something like that.
A.No, being on the amount of drugs that we were on, an hour could feel like a minute.
HIS HONOUR
Q.[A] -
A.Yes.
Q.- I think you said earlier in your evidence that during this period you might have slept once a week or sometimes longer than that -
A.Yes.
Q.- or, sorry, once every two weeks.
A.Yes.
Q.When you did sleep, are you able to say for how long you slept.
A.Sometimes I’d sleep like a whole day and then get back up and start again.
Q.Was it ever longer than a whole day.
A.I know there has been times but I couldn’t tell you when.
A first met the accused about a week before the Kilburn unit incident. At this time, the accused and Mr Purse already knew each other. Whilst A gave some hearsay evidence about the nature of their prior relationship, the only direct evidence on this topic is that of the accused and inferences that might be drawn from text message communications between the accused and Mr Purse.[39] I digress from A’s evidence to discuss some aspects of this evidence.
[39] Exhibit P7.
The accused said that he had known Mr Purse for a couple of months prior to February 2019. The accused had his own methamphetamine habit in 2018 and 2019 and was also a dealer. He had supplied Mr Purse with drugs about six times prior to February 2019, sometimes “on tick” and sometimes for cash. According to the accused, as at February 2019, Mr Purse did not owe a drug debt to the accused (until the night of the Kilburn incident).[40] Their relationship was a “funny” one; sometimes “good” and “sometimes not so good”.[41]
[40] T643.
[41] T426.
The relationship appears to have been “not so good” in late January and very early February 2019. In late January, the accused had arranged for Mr Purse to drive him to Murray Bridge and then to Mount Gambier (about 435 kilometres from Adelaide). The accused was to collect about $84,000 of methylamphetamine from a source, “on tick”. For reasons not clear on the evidence, the arrangement fell through and the accused felt let down by Mr Purse. The accused said that Mr Purse’s failure here cost the accused $5,000 which he had to pay to another person who collected the drugs for him.[42]
[42] T521-523.
A number of phone communications between the accused and Mr Purse had been engaged in culminating in a text message from the accused sent to Mr Purse at 5:52 pm on 26 January 2019:[43]
So what’s the fucking go you said an hour you would let me know stop fucking me around if you can’t do it just say so.
There was a two second voice call between them later that day, the content of which (if any) is not in evidence.
[43] Exhibit P7, entry 88. Plainly, the accused was displeased but just how angry he was cannot be ascertained from the text itself given the absence of tone and punctuation. The use of “fucking” in this context is indicative of frustration and anger, notwithstanding its ubiquity in modern parlance.
Thereafter, no further phone communication between the two is in evidence until 2 February 2019 when, between 3:26 pm and 3:43 pm, the following volley of texts was exchanged (those in italics were sent by the accused).[44]
Yeh man good luck. Please continue to try and set me up. Forget you know me, or I’ll learn more about you and make Day to Day life painful for years. Nevermind if you succeed, the things I can do can be done in reverse to make life worse. You do not want to make that mistake again: every single person you came across called me. One opted to not kick your head in. Grow up, kick over Sandcastles at Glenelg when you want to be a five year old cunt.
Oh yeah that’s cute meet up big boy
I’m good. Enough shit in my day.
Listen here you tip rat you think your a big boy meet now or when I see you I am going to scrape your face.of with a brick
Okay. What I said stands. Fuck off.
Sounds good
[44] Exhibit P7, entries 139 to 144.
Late on the next day, 3 February 2019, the accused went to the Birkenhead unit owned by a friend and where various persons known to the accused and Mr Purse would gather from time to time. According to A, she and Mr Purse were at the Birkenhead unit when, as soon as the accused arrived, he violently assaulted Mr Purse to the face with the butt of a shortened shotgun. The accused denied this and said in evidence that it was F who had assaulted Mr Purse. It is not in dispute that the accused, A and Mr Purse were at the Birkenhead unit at the same time.[45]
[45] This is also supported by agreed facts 16.1 and 16.2 in exhibit P1.
In any event, from the next day, 4 February at 3:20 pm, until late on 6 February 2019 (shortly prior to the Kilburn unit incident) the terms of the text messages between the accused and Mr Purse are consistent with either their relationship having resumed a more equanimous state or with the accused not being the person who so recently had violently assaulted Mr Purse.[46] I confine myself to the term “consistent” because: there was a number of telephone conversations during that period the content of which is not in evidence; there was opportunity for face-to-face conversations to have occurred as to which, if they did, there is no evidence; and there are aspects of the text messages, just referred to, redolent of Mr Purse trying to accommodate or ingratiate himself with the accused and of the accused attempting to placate Mr Purse’s anxiety in not being able to do so.
[46] Exhibit P7, entries: 188 to 197, 235, 239, 243, 246, 247, 251, 253 to 257, 276 to 280, 282 to 284, 293 to 295, 300, 303 to 307, 312, 313, 318, 319, 327, 341 to 346, 348 and 349.
I return to my consideration of A’s evidence. A said that she and Mr Purse went to the Birkenhead unit, although she could not remember at what time of day. A number of other people were there. The accused arrived with another man. The accused went directly to Mr Purse and beat him in the face with the butt of a shortened shotgun. A heard a horrible scream and saw blood coming from Mr Purse’s ear and nose and that blood vessels in his eyes had burst. A form of negotiation between Mr Purse and the accused took place. Mr Purse was given a week to provide the accused with four new mobile phones and either $1,000 or $10,000; A could not now recall which of the two amounts.
A spoke of another incident, one which involved Mr Purse apparently hallucinating, that occurred at an On the Run convenience store on North Terrace a few days before the Kilburn unit incident. It is unnecessary to go to this evidence in detail. The accused had no involvement. Plainly, Mr Purse was terrified, fearing that a named person (not the accused) had a gun and was going to hurt him. The police came and Mr Purse was taken to hospital. There is nothing in the evidence to expressly or impliedly connect the accused in any way with this incident. I have had no regard to it other than as indicative of Mr Purse’s state of mind as at early February 2019 and as a source for a defence criticism of A’s evidence, dealt with later in these reasons.
A gave detailed evidence concerning the lead up to the accused taking her and Mr Purse to the Kilburn unit. On the evening of 6 February 2019, she and Mr Purse went to the Hindley Street and Casino areas of the city. Mr Purse had not organised any phones or money for the accused but did not appear to be concerned. As earlier noted, the text message exchanges between the two men suggest that the relationship was back on an even keel, at least insofar as Mr Purse may have understood the situation. According to A, the accused was contacted and asked if he could supply drugs and lend them $50 for a hotel room. The accused agreed to meet them in the city.
The accused met A and Mr Purse in an alleyway off North Terrace. The accused asked A to go with him to an automatic teller machine to get the money. According to A, she got in the car, leaving Mr Purse in the alleyway, but the accused, instead, drove to “Port Quays”[47] where he forced her to engage in sexual acts with him.[48]
[47] Port Quays is a suburb of Perth, Western Australia. There is an apartment development, Newport Quays, in the Port Adelaide area. It is common ground that it was this location or area to which the accused and A drove.
[48] T142-143.
In the car, the accused asked A if Mr Purse had organised the phones and cash. A replied “I don’t think so” to which the accused responded “well, you know what happens next, don’t you”.[49] The accused denied that this conversation occurred; it was not put to him in cross-examination. I have placed no weight on this evidence of A.
[49] T143.
The accused gave a quite different account, denied by A. He said that he met A for the first time at the Birkenhead unit when Mr Purse was assaulted by F and that he subsequently did have a “physical relationship” with A on “one or more occasions”.[50] However, he denied having sex with A on the “Port Quays” occasion. A had asked for a lift to “Port Quays” so that she could do a job. She directed the accused to a unit block; he waited in the carpark for about 20 minutes until she returned and they then returned to the city.[51]According to the accused, on the way back, A asked if the accused had been able to obtain any “business” (of a sexual nature) for her and also suggested to the accused a scheme for robbing Mr Purse and sharing the profits. The accused gave this evidence.[52]
[50] T428.
[51] T436-442.
[52] T442-443.
Q.Then you mentioned something about robbing Michael Purse. What exactly was said by her at that time.
A.She advised me that he had money from a taxation job he did and that was hidden in accounts, and to obtain it and we’ll go halves.
HIS HONOUR
Q.Hidden where.
A.In bank accounts.
XN
Q.Her exact words was to do what. How were you going to get that money from those bank accounts.
A.By finding out the account numbers, getting Michael to log on and transferring it.
According to the accused, A told him that Mr Purse was a police informant.[53] However, the accused also gave evidence that he knew Mr Purse was a “dog” within a week of meeting him.[54]
[53] T443.
[54] T445, 568.
I return to A’s account. On their return to the city, they collected Mr Purse and set off to the Kilburn unit. The accused had told them that he had methamphetamine stored at the unit and that he could supply an eight-ball to Mr Purse “on tick” for him to on-sell. The accused was being “super nice” to Mr Purse throughout the journey; there was no apparent animosity between them.
A, together with the accused and Mr Purse, arrived at and entered the Kilburn unit “late at night”.[55] According to A, the accused made introductions and things then moved “very quickly”.[56]
Q.Once the introductions are done what happens.
A.I can’t remember if it was before or after but very quickly [the accused’s] punched Michael again and Michael’s on his knees and one of the people of the three standing over by the corner say something like ‘You’re a bit fucked aren’t you mate’, excuse my language, and [the accused’s] asked for duct tape and one of the three have gone and got duct tape and he’s taping Michael’s hands together and Michael looks up at him and says ‘No, we’re business partners everything’s going to be fine’.
It was C who said “you’re a bit fucked there aren’t you mate” and the accused who called for the duct tape.[57]
[55] T147.
[56] T158.
[57] T158-160.
After A saw Mr Purse’s hands being bound together with silver grey tape about 2.5 centimetres wide,[58] A and D went into D’s bedroom.[59] D left his bedroom for a short time whilst music was playing in the bedroom.[60] A sat on the end of the bed and listened to voices – “it sounded like all the people that were out there before”. After D had returned, A heard a “horrible noise, like a wounded animal being killed” which she recognised as coming from Mr Purse.[61] It was similar to the noise she heard from Mr Purse during the Birkenhead unit assault.
[58] T161.
[59] T161-163.
[60] T167.
[61] T165-167.
A first left the bedroom with D when it was daytime in order to get a drink and only B was present in the loungeroom.[62] A saw that the furniture in the loungeroom had been moved around. She did not immediately notice anything about the carpet but realised later that it was no longer there.[63] The next time A left (“was dragged out of”) the bedroom, she saw C and the accused walk in through the front door; “they looked very worried”,[64] “it’s the one and only time [she’d] ever seen [the accused] look scared”.[65] When C came in he walked straight into his bedroom. Neither the accused nor C said where they had been.[66] The accused left “less than an hour” after A saw him come in through the front door.[67]
[62] T166.
[63] T171-172.
[64] T168.
[65] T169.
[66] T169-170.
[67] T169.
I note here that A’s evidence in chief on this topic can be seen as consistent to a degree with the defence case which is to the effect that the accused, having left the Kilburn unit on his own in the early hours when still dark and whilst Mr Purse was still alive, did return during daylight, on his own, but entered the Kilburn unit at the same time as did C. That is, coincidentally, he had arrived separately from C and E but at the same time that they arrived in C’s original Daewoo.
There was a stark disagreement between A and the accused concerning her role upon her arriving at the Kilburn unit. A said that very soon after their arrival, at or about the time the accused initially punched Mr Purse, the accused directed her, much against her will, to go with D to his bedroom.[68]
[68] T162-163.
Q.Now, you’ve told us a comment was made about you going to another room.
A.I was told to go into the other room with [D].
Q.Who told you that.
A.[The accused].
Q.What were the - do you remember the words that [the accused] used.
A.‘My friend just got out of gaol, it’s been a while since he’s had some pussy, go and remind him what it’s like’.
Q.Did Michael say anything when that happened.
A.No.
Q.Did anyone else say anything in response to that comment.
A.I replied.
Q.What did you say.
A.I said I’m not, said ‘I’m not a prostitute anymore you can’t tell me what to do’. He said ‘Yes I can, you will go in that room’.
Q.What did you do.
A.What I was told because it was quite clear from the room that I had no choice.
Q.Did you go into another room.
A.Yes.
The accused’s version was very different. According to him, one of the three purposes for going to the Kilburn unit, as had earlier been discussed with A, was for her to entertain D and make some money.
A said that, later the next morning, after the accused had left the Kilburn unit, she was detained there at the accused’s insistence.[69] She could not say for how long but it “felt like a lifetime”.[70] At some point, she, B and C went out in a car to source drugs. She gave this evidence concerning the state of the car.[71]
[69] T169.
[70] T170.
[71] T170-171.
A.We all went in the car.
Q.Can you describe the car that you went in.
A.No. Sorry, it’s just - I don’t remember what it looks like. All I remember was – I don’t know if you know what a dead body smells like, but I was in the back seat and it’s - it’s horrible. I don’t know what the colour - it was a small car. There was like a whole bunch of air fresheners trying to cover up the smell. That’s all I remember.
Q.And was that a smell you detected sitting in the back of the car.
A.Yeah. It was very - it wasn’t subtle.
Q.You describe it as the smell of a dead body.
A.It was, yes.
Q.How did you know what that smelt like.
A.I lived up in - south at one point and we had a whole bunch of field mice come into our roof during the winter. So when the pest exterminator went up there and put the pellets to kill them, it - none of them ran. So we had like 100 or more dead rats in our roof, like to the point where maggots were coming out of the walls at some point. It’s - it was exactly like that.

The defence criticised various aspects of A’s evidence, concerning what she said she saw at the Kilburn unit and her observations and behaviour before and after the Kilburn unit incident, all said to bear on her credibility and reliability. She was also taken to her criminal record.
I accept that A’s ability to accurately perceive and accurately recall, five years later, the detail of relevant events was significantly affected by her heavy and constant methamphetamine use during the early months of 2019.
The conduct of Mr Purse and A during the five days or so after the Birkenhead unit incident: as indicated in the text exchanges with the accused;[72] in Mr Purse and A approaching the accused for drugs and money; in A travelling with him to “Port Quays”; and then both travelling to the Kilburn unit without any apparent coercion by the accused, is consistent with the accused’s account of someone else, perhaps F, having violently assaulted Mr Purse at the Birkenhead unit and with the accused, and Mr Purse and A, having an amicable relationship in early February 2019, contrary to A’s characterisation. I accept that there is a level of consistency here.
[72] Exhibit P7.
The evidence of A that, notwithstanding her substantial and expensive methamphetamine habit, she ceased her work as a prostitute immediately upon taking up with Mr Purse lacks plausibility. She still needed access to money.
Prior to meeting Mr Purse, A had stayed for a few days with a man who lived in “Port Quays”, whom she denied was a customer.[73] She denied going to “Port Quays” during the late evening of 6 February 2019 to see this or any man for a prostitution purpose. However, it would seem an unnecessarily long way for the accused to have driven that evening only in order to find a location where he could force himself on A in the car. The accused has not been charged with any criminal offence related to this allegation.
[73] T176.
A was asked about the Parlour.[74] The cross-examiner’s questions were imprecise resulting in some answers by A being ambiguous.[75] In evidence is a redacted copy of a form apparently completed by A by hand. A said she did not remember the form.[76] That form is a “Reg of Interest to provide Massage Services”.[77] It relates to the Parlour[78] and states that, as at 8 January 2019, A was willing to offer her services “ASAP”. The form contains the following:
We provide our clients a nonsexual massage service. Any persons found to be providing any service of a sexual nature will be terminated immediately.
[74] T176-177.
[75] T176-177.
[76] T176.
[77] Exhibit D8.
[78] T393 (Mr Horder).
No evidence was received concerning the nature of the Parlour business other than this redacted copy of the registration of interest form and intimations from A. However, I make the following observations. It is unlikely that any massage parlour would positively acknowledge the provision of sexual services; rather it is likely that even if such were to be available, public statements and documentary records would be silent in this respect or would assert the contrary. In addition, there was no evidence from A, but opportunity to have given it, to the effect that she had training and experience in conventional massage, that is, as an allied health service. Her registration of interest form did not request and provided no space for, an applicant to set out their training and experience – something a prospective employer of qualified masseurs would want to know. Furthermore, A did accept that she was working for the Parlour in the weeks after the Kilburn unit incident.
I make no finding that A lied about giving up prostitution during her time with Mr Purse. However, it remains an open question in my mind. As such, in the circumstances, I am not persuaded by A’s account of the reason she and the accused travelled to “Port Quays”. I am also not persuaded by her evidence that she was an unwilling participant when she went with D to his bedroom, which evidence was vehemently contradicted by B.
On 17 February 2019, 10 days after the Kilburn unit incident, A took part in a joint criminal enterprise with the accused to rob the Parlour. A was working there and acted as an inside co-conspirator. She pleaded guilty to aggravated theft and threatening to kill or endanger life. A explained that she had cooperated with the accused under a form of duress; he threatened her by pointing a gun in her face. However, she did not raise this as a defence to the charges.[79]
[79] As at 2019, duress could operate as a defence in South Australia to any offence other than murder or perhaps attempted murder.
In any event, it is puzzling that A, apparently, maintained a relationship with the accused so soon after the Birkenhead and Kilburn unit incidents. Her evidence was that she believed the accused to have killed Mr Purse. However, her phone records indicate a number of communications or attempted communications with the accused very soon after. At 9:01 pm on 7 February 2019 (the very evening of the day of the Kilburn unit incident) A’s phone sent a text to the accused – “yo” – an apparent greeting seeking a response. Thereafter, between 10:31 pm on 7 February and 12:56 pm on 10 February 2019, six calls from A’s phone to the accused went unanswered and there were two telephone conversations between A’s phone and the accused’s phone (two minutes and 59 seconds and nine seconds, respectively). On 10 February 2019 at 12:44 pm, probably in response to a voice message left about one and a half hours earlier, the accused responded with a text – “yo what’s up”. Except where otherwise indicated above, the content of the various communications (text, voice message or phone conversation) is not in evidence.[80] A said that she did not have control of her phone for three days whilst she was kept at the Kilburn unit and that B or C may have used her phone to try and contact the accused who had proved difficult for them to contact in the days after the Kilburn unit incident. However, B’s evidence is that A was only detained until the next day, 8 February 2019 and that A’s phone had not been confiscated.
[80] See exhibit P7, entries: 379, 384, 395, 396, 398, 399, 402, 403, 410, 411, 438, 439, 483, 484 and 486.
The Parlour robbery in which A participated is an offence involving dishonesty. Nevertheless, on its own, and in particular if A’s explanation of duress were to be correct, it ought not be a major impediment to the acceptance of A as a witness capable of truth. However, in the circumstances set out above I, again, am not satisfied that A has been full and frank about the Parlour robbery and her relationship with the accused at the time of and after the Kilburn unit incident. I am not in a position to make positive findings of dishonesty in these respects but I do approach her evidence on these topics, and therefore generally, with circumspection.
The defence criticised or challenged many other, more minor, aspects of the evidence of A to which criticisms I have had regard. Without being comprehensive, I provide the following examples.
A at first denied knowing a person, PI. However, when prompted that he was the owner of the Parlour she said that she had dealt with a female when working there; she had met PI once but did not know his last name.[81] I do not accept the defence submission that A lied when initially she said she did not know a person called PI.
[81] T176-177.
A went on to deny having told PI that:
(a)she was having consensual sex in another room whilst her boyfriend was being assaulted;
(b)one of the guys “pistol whipped” Mr Purse during the Kilburn incident; and
(c)“some guys came in to get rid of the body and to tidy up the house”.[82]
[82] T179-181.
It is an agreed fact that:[83]
The following is to be treated as the evidence of [PI], had he been called to give evidence in the trial:
In a conversation with [A] about 1 week after the [Parlour] Robbery [A] told him the following:
“[A] said that she had been having sex with one of the males in another room whilst the assault on her boyfriend was taking place.”
“One of the guys pistol whipped Michael during the assault.” and
It is [PI’s] recollection of her account that:
“the assault went on for a few days”.
It can be seen that PI would have given evidence in terms of (b) above but not (a) (no mention of “consensual”) nor (c).
[83] Exhibit P12A, agreed fact 59.
PI was not cross‑examined. However, for present purposes, I accept that he would have maintained his evidence in accordance with agreed fact 59. Given that I did not see or hear PI give evidence, I am not in a position to make a credit finding. I accept his evidence as truthful. It is possible that PI has conflated A’s account of Mr Purse being hit in the face with the butt of a shortened shotgun at the Birkenhead unit with an account of the Kilburn unit incident. I am not satisfied of any dishonesty by A here, although there may have been some inconsistency between what she told PI and her evidence in court bringing into question her overall reliability.
The defence criticised the following evidence given by A during cross-examination.[84]
Q.Do you recall speaking to an officer by the name of Ann Katherine Schaefer -
A.Yes.
Q.- and that conversation, I’m going to put to you, took place on 24 May 2019, do you recall a conversation you had with Officer Schaefer at that time.
A.No.
Q.Did you at any time deny any knowledge as to what happened to Mr Purse to that officer.
A.Yes, because there were people currently looking - the ones that are now behind bars were looking for me in my area.
Detective Schaefer confirmed that A initially did deny any such knowledge and that she appeared “worried, scared”. However, A later overcame her reluctance and provided a more fulsome account.[85] There would appear to be nothing untoward in such behaviour.
[84] T181.
[85] T411-412.
A said in her evidence that the accused had behaved in a threatening manner outside her house after the Kilburn incident.[86] However, she agreed that she did not complain to the police about this. During cross-examination, A gave this explanation in answer to the cross-examiner’s implied criticism.[87]
Q.Did you make any complaint to the police about that at any time, that he had been out the front of your house.
A.Do you understand how - he knows where my family lives, I just watched him murder my boyfriend, why would I put my family in danger?
Q.Well, first of all, you never saw him murder your boyfriend at all, did you.
A.No, I did not see.
Again, there would appear to be nothing untoward in such behaviour.
[86] T181-182.
[87] T182.
The defence further submitted that A’s assertion that she watched the accused murder her boyfriend should be treated as a lie. It certainly is untrue; A did not see Mr Purse being killed, let alone “murdered”, and nowhere in her evidence, other than at this point, did she say so. She was expressing a belief not a deliberate untruth. However, I do accept the defence submission that she demonstrated:
… a biased and one eyed view … and a strong degree of animosity towards [the accused which] can be used in assessing the character of [A] and whether she would be motivated to tailor her evidence and lie under oath.
A’s bias and animosity is probably justified. However, it does not necessarily follow that any established bias or animosity caused A to give evidence that has been tailored and to lie under oath. Nevertheless, A’s evidence must be viewed with circumspection given her emotional involvement; she was not an independent or disinterested witness.
The defence put to A, during cross-examination, numerous prior statements she is alleged to have made to various persons, including the accused. In almost every case, A either denied or said she had no recollection of saying those things. Apart from alleged statements to the accused about which he has given evidence, the more important of which are referred to earlier and the possibility inherent in agreed fact 59, there is no evidence contradicting her denials.
There are a number of aspects of A’s evidence that are inconsistent with or were contradicted by B’s evidence. Some examples do not strike me as being of any particular significance. However, there was a stark contrast between the evidence of the two women concerning whether A’s belongings, particularly her mobile phone, were confiscated while at the Kilburn unit and whether her involvement with D was coerced and against her will. B denied the former and was adamant that A’s conduct with D was very much consensual. She made this point a number of times in quite entertaining language, for example:[88]
[88] T313-314.
Q.We will just deal with your observations of [A]. Did [A] put up any opposition to going in the bedroom with - what was the expression?
A.No, she was not held against her will. She was with bells on for a smoosh mate. In there with bells on.
Q.And when you refer to a ‘smoosh’ you are referring to them obviously having sex at that time, aren’t you.
A.Yes. Rolling around in the hay is what I’m referring to made (scil: mate).
Q.Did you see at any time see [D] dragging her out of that room at any time.
A.No.
Q.Or dragging her back into the room.
A.No.
Q.So for all intents and purposes from your observations it appeared as though she was a willing participant in going into the bedroom; is that right.
A.215% correct.
Q.And did anybody say anything to get her to go into that room at all.
A.No. She liked what she saw and she bit the bait and she was in there like a fly on shit. I mean, excuse me.
Q.That’s all right. I think we know what you are referring to.
As I will explain further below, I am satisfied that in general B’s evidence was frank and reliable. I have found B’s evidence concerning the apparent role of A vis à vis D at the Kilburn unit to be more persuasive. This issue has caused me some concern about finding A’s evidence to have been fulsome and frank in all respects.
A said that as at the time of trial she had been free of illicit drugs for three years and was taking suboxone to help her stay off drugs, fluoxetine, an antidepressant, and seroquel to assist with sleeping.[89] She conceded that, in 2020, she had committed a number of breaches of bail by failing methylamphetamine testing.
[89] T188-189.
The defence was particularly critical of A’s behaviour concerning the various text messages and voice conversations between her and the accused after the Birkenhead and Kilburn unit incidents. I have already canvassed this issue.
The defence submitted that A lied during cross-examination in saying that she was kept in the Kilburn unit for three days. She did say this. However, her evidence on this point was elicited more fulsomely in questions from the Bench.[90]
[90] T207.
HIS HONOUR
Q.Can you explain again what you just said.
A.So, I remember in the days after, while [D] was driving -
Q.Where were you in the three days after the time when you say Mr Purse was killed.
A.I was kept in that house.
Q.You were in that house.
A.Yes.
Q.For how long.
A.I couldn’t tell you. It felt like forever, but I remember a day and night coming. So at least two or more days.
B said that she thought A had been sent on her way in the late afternoon of 7 February 2019.[91] Nevertheless, I do not accept the defence contention that A’s statement that she was kept for three days is to be seen as a lie. A was giving evidence some five years later; she had been heavily affected by her methylamphetamine usage and her language is that of estimation or belief as a consequence of what it felt like.
[91] T292-294.
However, A in the immediately preceding passage of cross‑examination also said that during the period she was kept in the Kilburn unit, C, D, and B were the only other persons in the house and, in effect, had total control over her and her phone, and used it to contact or try to contact the accused.[92]
No. Actually, from what I remember, the three people in the house were very angry that [the accused] had left him - them there with the body and he wasn’t answering the phones at all. So they were wanting to use my phone to try and get a hold of him.
The defence contended that A was lying about this in order to distance herself from using her phone to attempt to communicate with the accused on 10 February 2019. These communications comprised a two minute and 59 second call from A at 2:38 am, a text from the accused at 12:44 pm saying “Yo what’s up”[93] and a nine second phone call[94] some 12 minutes later emanating from A’s phone which the defence contended was in response to the text. B denied taking A’s phone and did not see C take it.[95] She referred to a text she had sent to D telling him to keep an eye on A’s phone. If, as I find likely, A left the Kilburn unit late on 7 February 2019, the attempted communications from her phone to the accused’s phone on the following days would have come from A.
[92] T207-208.
[93] Exhibit P7, entry 485.
[94] The content of which is not in evidence.
[95] T311, 351.
A was examined and cross-examined about the incident with Mr Purse at the On the Run convenience outlet a few days before the Kilburn unit incident. She initially denied that she had called the police or made a “000” call. Plainly, the latter was incorrect and she had no choice but to concede this when a recording of the “000” call was played during cross‑examination. The defence contended that she had lied in court. However, there was nothing to be achieved by lying. This was an unrelated incident, albeit one that disclosed Mr Purse’s delusional state at the time and underlying serious fear of an associate. Given A’s apparently genuine surprise upon recognising her voice at the time the call was played and whilst this is another matter affecting the reliability of her evidence as already discussed, I am not persuaded that A lied on this occasion.
The defence contended, at least by implication, that A’s demeanour was unsatisfactory and referred, by way of example, to the following exchange with the Bench.[96]
[96] T221-222.
HIS HONOUR
Q.[A], I think -
A.- I just remember him punched and -
Q.[A], sorry, stop, stop.
A.Sorry.
Q.My recollection is that at some point you said when were you in the car afterwards you went shopping and -
A.Sorry, when is this - with the two people?
Q.With the two people -
A.Yes.
Q.- and the woman in the car bought some things and I thought you mentioned, I could be wrong, something to clean up blood.
A.Yeah, she went into - again, I wouldn’t call it me going shopping, I was being taken -
Q.No, sorry, I didn’t mean to say that. I didn’t mean to suggest you were going shopping.
A.So, yeah, she brought a soap that literally said on the front of it ‘Can clean blood stains up’.
Q.I think that’s the bit of evidence that [defence counsel] is referring to.
A.Okay, yes.
HIS HONOUR: Is that right?
[DEFENCE COUNSEL]: It is, yes.
I recall engaging in this exchange. The concern was a simple one: cross‑examining counsel, in a rather lengthy statement to the witness, had tried to identify or signpost a topic about which he wished to question A. However, she appeared to be a little frustrated and started to revisit the topic rather than await counsel’s questions. I needed to get her attention so that I could have her wait for counsel’s next question. I draw no adverse inference from her “demeanour” at this time.

I am satisfied beyond reasonable doubt that Mr Purse suffered a significant knife wound to the abdominal region which caused substantial bleeding. This finding is the only rational inference from B’s evidence and is consistent with the accused’s account. Consistently with my analysis of and conclusions drawn from the evidence of the accused and B to this point, I accept B’s evidence concerning the knife incident and I reject the accused’s evidence where inconsistent with that of B. Again, this means that I am to put to one side those inconsistent aspects but still must determine whether or not the prosecution contention that the accused stabbed Mr Purse with a knife has been established beyond reasonable doubt on the basis of the evidence I do accept. In other words, I still must determine whether or not it remains reasonably possible (but consistent with the evidence of B) that: Mr Purse produced the knife; and, the wounding was unintentional and accidental from the accused’s perspective.
I have found that Mr Purse was bashed with the butt of a firearm less than a week before the Kilburn unit incident. I am satisfied that he also may have had a significant level of anxiety and fear that he might be physically harmed by an associate or associates of his in the illicit drug business. Mr Purse had recently manifested such a fear at the North Terrace OTR and Mr Horder gave hearsay evidence concerning various persons including F who may have harmed or threatened Mr Purse in the past and may have had a motive to harm Mr Purse. Physical violence or the threat thereof is commonplace within the illicit drug using and dealing community. This is the main way by which debts are enforced. Persons who inhabit this criminal environment often will take steps to protect themselves. For example, the accused had access to a shortened firearm. Mr Purse’s lifestyle was a dangerous one. It is conceivable that he would arm himself from time to time with a knife or other weapon if only for defensive purposes and, a fortiori, on the Crown case which I have accepted, where he “owed” money to the accused which he was not in a position, as at 7 February 2019, to pay. The text messages with the accused in the days prior to 7 February 2019 suggest that Mr Purse was making efforts to mollify the accused.[270] According to A, the purpose of Mr Purse obtaining an eight-ball “on tick” from the accused that night was so that he could sell it and repay some of the money “due” to the accused.[271] These factors militate towards Mr Purse having come armed with a knife.
[270] See, for example, exhibit P7, entries 235, 239, 243, 246, 247, 251, 253-257, 276-280, 282-284, 300, 303-307, 312-313, 318.
[271] T145-146.
However, it was a mid-summer February evening and night. The accused had worn lightweight clothing on the morning of the assault – a loose short sleeve shirt and trousers.[272] I infer that Mr Purse likely would have been wearing lightweight clothing, quite possibly sufficient to conceal a knife in the waistband of his pants but also such that a knife in the waistband or otherwise on his person and easily available might be exposed during violent activity. The violent wrestling between the accused and Mr Purse, including the stumbling backwards, the attempted headlock, the attempted strangulation, Mr Purse’s successful resistance, and the stomping by D, likely would have revealed the existence of a knife either to B or the accused. However, B saw nothing until she saw the accused with the knife after Mr Purse suffered the injury. Further, Mr Purse was described by A as, in effect, gentle and not aggressive and he had expressed to A, including in the Kilburn unit loungeroom, that he was not concerned about being with the accused – “we’re business partners everything’s going to be fine”.[273] Finally, the seven day period within which Mr Purse was to procure money and four mobile phones for the accused had not yet expired. These factors militate against Mr Purse having come to the Kilburn unit with a knife.
[272] Exhibit P2, page 50.
[273] T158.
Another consideration is that, at all times, Mr Purse’s hands and/or wrists were bound by the tape. A said his hands were taped. B said his wrists were taped like handcuffs. Either way, this would have rendered it very difficult for him to have gained access to and to have held a knife in any effective manner and, a fortiori, with tape over his eyes. According to B, when the accused was assaulting Mr Purse, he was “failing miserably”, Mr Purse was a much taller man and was “flinging” the accused around notwithstanding his bound wrists. A level of desperation in the smaller accused can be inferred from his spontaneous use of the headphones with such force around Mr Purse’s neck that they snapped.
If not to get a knife, why then did the accused run outside during this wrestling match? It is quite unlikely that it was to enlist the assistance of C. C came only after the knife wound had occurred and at the behest of B. Surely C would have responded earlier if the accused had asked him to do so. A counterpoint question might be, why did the accused need to run outside for a knife when, presumably, there would have been one in the kitchen? However, it cannot be assumed that a sharp knife was readily to be seen or available on a benchtop. If not, the accused would have needed to search drawers or cupboards. Whereas, if the accused had a knife in the car, it was only steps away from the ground floor Kilburn unit.
The lack of any apparent purpose for the accused to run outside in the middle of a wrestling match only to return straightaway at which time the knife appeared for the first time and the stabbing occurred, presents a telling coincidence.
According to B, she did not see a knife before the accused ran outside but after he came inside, she saw blood, heard wailing and saw the accused drop a knife with blood on it. For the accused to have dropped the knife, he must have held it and B, during cross-examination, said that she saw “the outwards motion” prior to seeing the accused drop the knife. On the accused’s case, he must have seen the knife stuck in Mr Purse, grabbed it and pulled it out, although he gave no evidence to the effect of the latter proposition; indeed, his evidence was to the contrary, Mr Purse pulled out the knife.
I have rejected the accused’s account of Mr Purse lunging at the accused with a knife and the two men wrestling, with the accused attempting to point the knife away from himself until they fell with Mr Purse accidentally stabbing himself. This is not what B saw.
Any scenario of absolution for the accused can only be one that can reasonably be inferred from that which B did see. It is conceivable: that Mr Purse produced a knife while the accused was outside or as soon as he came back in; that the two immediately grappled with each other, with neither the accused nor B being aware of the knife; and that whilst grappling, Mr Purse accidentally stabbed himself and fell to the ground. This could account for B seeing the accused pull Mr Purse from the floor and only then seeing the accused drop the knife (after having removed it from Mr Purse’s torso) thereby becoming aware of it for the first time. There is no support for such an analysis in the evidence and it is no more than speculation. Only the last part, B seeing the accused drop a knife, has support in the evidence I have accepted. A conceivable explanation is not necessarily a reasonably possible one arising on the evidence. Furthermore, the conceivable notion just posited is quite inconsistent with the accused’s, albeit rejected, evidence. An alternative conceivable notion that Mr Purse possessed but did not reach for a knife and that as they grappled, he was stabbed by the knife still secreted in his clothing, is speculative and fanciful.
Having carefully considered the relevant evidence and the parties’ submissions, I am satisfied beyond reasonable doubt that the accused did run outside and obtain a knife. This is the only rational inference available on the evidentiary basis that I have accepted. On his return, he intentionally stabbed Mr Purse in the region of the abdomen. The evidence does not permit a finding as to whether Mr Purse was stabbed once or more than once. As far as the prosecution case is concerned, I can only be satisfied of the one stab wound. The notion that at some stage during the struggle, as described by B, Mr Purse produced a knife is not a reasonable possibility arising on all of the relevant direct and indirect evidence.
Death of Mr Purse and cause of death
I am satisfied beyond reasonable doubt that Mr Purse is deceased; this is the only rational conclusion to follow from the relevant circumstantial evidence including the agreed facts adduced by the prosecution.[274] I am satisfied beyond reasonable doubt, and consistent with agreed facts 39 and 40,[275] that Mr Purse was deceased as at the time on 8 February 2019 that C disposed of his body, if not as at some time in the previous 24 hours. It is not necessary that I determine a precise time of death.
[274] This evidence is summarised in the Introduction to these reasons.
[275] Exhibit P1.
The accused can only be convicted of either murder or manslaughter if the circumstances are such that he is criminally responsible for an act or acts that caused, in the sense of being a substantial cause of, Mr Purse’s death. Justice Brennan in Royall v The Queen[276] put the matter this way.
The basic proposition relating to causation in homicide is that an accused’s conduct, whether by act or omission, must contribute significantly to the death of the victim. It need not be the sole, direct or immediate cause of the death.
(Citation omitted)
[276] (1991) 172 CLR 378 at 398.
In R v Hallett,[277] Bray CJ, Bright and Mitchell JJ explained how to approach the question of causation of death.
The death of the deceased is the material event. The question to be asked is whether an act or series of acts (in exceptional cases an omission or series of omissions) consciously performed by the accused is or are so connected with the event that it or they must be regarded as having a sufficiently substantial causal effect which subsisted up to the happening of the event, without being spent or without being in the eyes of the law sufficiently interrupted by some other act or event. It does not matter on the question of causation whether or not the accused after the commission of his act fails to appreciate or takes unavailing steps to avoid its probable consequences or mistakenly thinks he has taken such steps or fails to take such steps through some supervening factor unless that supervening factor so interrupts the effect of the original act as to prevent that original act from being in the eyes of the law the cause of death.
[277] [1969] SASR 141 at 149.
Establishing a substantial cause or substantial causes of death in cases such as the present, where there is no post-mortem pathology evidence (“expert medical evidence”) and there is not a single obvious unchallenged cause such as, for example, a gunshot to the head or vital organs, can be problematic. In this case, there was a single knife wound to the abdominal region which, according to the eyewitness evidence and the circumstantial evidence (the extent of the Kilburn unit clean up and disposal of contents undertaken) caused Mr Purse serious distress and bleeding. This may have been a substantial cause of death. However, Mr Purse survived the knife wound at least until the 30 second incident and, possibly, for a time after that. There were other possible substantial causes each of which may have operated independently or in conjunction with the knife wound.
Possible causes of death
Leaving aside the requisite mental element for the moment, for the prosecution to succeed it will need to establish beyond reasonable doubt that the accused is criminally responsible for each and every reasonably possible cause of death. In other words, I must be satisfied that there was no reasonably possible, solely operating cause for which the accused is not criminally responsible.
(i)Exsanguination (“bleeding out”) resulting from the knife wound was a reasonably possible cause. I am prepared to take judicial notice of the facts that there are large and important arteries in the abdominal region of the human body, including the abdominal aorta and its various arterial branches, the partial or whole severance of which, if untreated, can lead to death by exsanguination over a relatively short period of time. In the absence of expert medical evidence, it is not possible to elevate this beyond a reasonably possible cause of the death of Mr Purse.
(ii)During the 30 seconds when B looked away and either the accused or C was holding Mr Purse’s head and shoulders with the assistance of the other, it is possible, indeed highly likely, that Mr Purse’s head and neck were twisted and snapped in some way or some other completely disabling action was taken. This inference arises from C’s desire for Mr Purse to stop wailing, C’s malevolent direction to B, the very short period involved (30 seconds), B’s observations after turning back of Mr Purse’s feet twitching for a short time, and Mr Purse becoming immobile and ceasing to make any wailing or other noise. Plainly, Mr Purse was alive immediately before the 30 second incident. Even if exsanguination from the knife wound inevitably would have caused death, the 30 second incident intervened and became a possible, indeed highly probable, substantial cause of death. However, in the absence of expert medical evidence, I cannot make this finding beyond reasonable doubt. Whatever occurred during the 30 second incident and with or without any contributing effects of ongoing exsanguination, it is a reasonable possibility that Mr Purse was only rendered paralysed and/or unconscious.
(iii)If the 30 second incident was not an immediate substantial cause of death, as in (ii) above, Mr Purse died some short time after by one, or more in combination, of:
(a)exsanguination;
(b)internal injuries from the kicking and punching assaults which occurred after the knife wound;
(c)the continuing consequences of the 30 second incident; and/or
(d)the act of leaving Mr Purse’s body in the boot of C’s car which ensured no medical or other assistance could intervene to prevent death from one or more, in combination, of (a), (b), or (c) or perhaps suffocation.
I have not yet, in this context, referred to the stomping by D and the attempted strangulation with the headphones by the accused. Whether or not a person’s act is a substantial cause of death is to be determined by a commonsense application of the facts.[278] Both of these acts occurred early in the ongoing assault. Whilst the stomp and the attempted strangulation may have caused some physical damage and pain, neither had any significant effect on Mr Purse’s capacity to resist the accused by wrestling and flinging him about.
[278] Royall v The Queen (1991) 172 CLR 378 at 387 (Mason CJ), 412 (Deane and Dawson JJ) and 423-425 (Toohey and Gaudron JJ).
After and notwithstanding the stomp, it was still necessary to attempt the headphones strangulation, to stab Mr Purse in the abdominal region, to continue to lay into his head and body with punches and kicks and to perform certain unknown acts during the 30 second incident in order to subdue Mr Purse. I do not consider it to be a reasonable possibility arising on the evidence that either the stomp or the attempted strangulation constituted a substantial cause of Mr Purse’s death let alone the sole substantial cause to the exclusion of all of (i), (ii) and (iii) above.
I am satisfied that Mr Purse’s death was substantially caused by one or more, in combination, of the events in (i), (ii) or (iii) above to the exclusion of any other conceivable causes. The next question is whether the prosecution has proved the accused to be criminally responsible for each of these possible causes. In this respect, the prosecution must establish, inter alia, that the accused had the specific intent for murder at the time of the act or acts relied on as being the substantial cause(s) of death.
Criminal liability of the accused
I have received and relied on a substantial amount of evidence concerning the conduct of C. C has not participated in this trial and has not been in a position to respond to the allegations against him. However, I have relied on eyewitness evidence by B of C’s conduct which occurred in the presence of the accused and to which the defence has been able to respond. The accused cannot be responsible for or liable with respect to C’s conduct except insofar as the doctrines of joint or extended joint criminal enterprise were to be invoked.
I have already identified all of the actions of or contributed to by the accused that constitute reasonably possible causes of death. I am satisfied beyond reasonable doubt that the accused is to be held criminally responsible for each of these actions and that in each case he had the necessary mental state for murder.
Manslaughter
However, before developing this finding further, I should revert to the common law alternative to murder of manslaughter by an unlawful and dangerous act.
Exsanguination following the stab wound is the one possible cause that, on the evidence before me and my findings, raises the question of the culpability of the accused alone, that is, without any assistance from C. It is reasonably possible that Mr Purse died from exsanguination alone, that is, that whilst the other aspects of the assault might have caused paralysis, other serious injury and/or loss of consciousness, none contributed to the death of Mr Purse. None of this can be known in the absence of expert medical evidence but the possibility I have outlined remains a reasonable one.
If I were not to be satisfied that, at the time the accused stabbed Mr Purse, he had the specific intent necessary for murder, he would not be guilty of murder on that or any other basis. All of the potential causes of death are only (albeit, the only) reasonably possible causes. Unless the accused had the necessary specific intent with respect to all, the prosecution will not have proved its case for murder. In this first scenario, manslaughter by unlawful and dangerous act would follow axiomatically.
A second scenario to consider would arise if it were to be reasonably possible that, in fact, it was Mr Purse who produced the knife during the process of being assaulted by the accused, but in the circumstances otherwise as described by B. In this scenario, the ensuing stab wound, itself, may have been accidental and unintended, as far as the accused was concerned, in which case, again, murder would not lie. However, I am also satisfied that manslaughter would follow in the second scenario for the following reasons.
In the second scenario,[279] the accused taped Mr Purse’s hands, eyes and mouth, rendering him extremely vulnerable, and assaulted, by punching to the head, wrestling and attempting to strangle, Mr Purse. All of this conduct comprised a series of unlawful and dangerous acts. In this assumed scenario, in attempting to defend himself (unsuccessfully, as it would turn out) Mr Purse produces a knife. He would have been entitled to do so. Continuing with this hypothetical scenario, Mr Purse accidentally suffers a stab wound whilst still being assaulted by the accused. In these circumstances, any claim of self-defence by the accused would not arise and would not break the chain of causation between the accused initiating and continuing the assault which resulted in the death of Mr Purse. Even if the accused were to have become aware of the knife, self-defence would not arise. The accused could and should have broken off the assault against the taped Mr Purse. Conceptually, there would be no difference between this scenario and Mr Purse having been punched so as to fall and strike his head on the corner of a table leading to death caused by a closed head injury with the punching occurring in circumstances where no act of self-defence was called for.
[279] I have already rejected this scenario as a matter of fact but I include it here for completeness.

Whilst in both of the scenarios just referred to death arises only as a reasonable possibility, it would be no answer to aver that the prosecution has not proved manslaughter beyond reasonable doubt. The two scenarios would arise as the only possible factual alternatives to a murder conviction. The failure to prove murder beyond reasonable doubt would arise only if there were these reasonable possibilities that would give rise to manslaughter.
However, and in any event, I am satisfied that in the first scenario, that is, my findings of fact to this point including that the accused intentionally stabbed Mr Purse, the accused did have the required specific intent for murder. As far as the second scenario is concerned, it simply does not arise given my findings of fact to this point. I now return to my analysis of the accused’s mental state as relevant to his criminal liability for each of the only reasonably possible causes of death.
The accused’s specific intent
I have no doubt that at the time the accused stabbed Mr Purse in the abdominal region and at all times thereafter until he left the Kilburn unit at about 9:00 am on the morning of 7 February 2019, he intended, at the least, to cause grievous, that is, really serious, bodily harm to Mr Purse. If the stabbing were to have been a substantial cause of the death of Mr Purse, the accused would thereby be guilty of murder. The accused had: bound the wrists and eyes of Mr Purse, rendering him physically vulnerable in preparation for engaging in a sustained attack; punched Mr Purse to the face; wrestled with and attempted a headlock on Mr Purse; attempted to strangle Mr Purse; but was failing “miserably” to subdue him. In these circumstances, he obtained a knife and deliberately stabbed Mr Purse in an area of his body which risked really serious harm to a number of vital organs. Whether or not he, in fact, caused such harm, he must have intended to do so in order to disable Mr Purse and bring the violent assault on him to a successful conclusion.
However, Mr Purse continued to struggle and to wail loudly. C arrived inside the unit soon after the stabbing and immediately joined the accused in the continuation of the assault by the two of them punching and kicking Mr Purse to his body and his head, undertaking the 30 second incident and depositing and leaving Mr Purse’s body in the boot of C’s car. Throughout this conduct, the accused’s intention continued to be, at the least, one to inflict really serious bodily harm. At the time Mr Purse’s body was placed in C’s car, to be dumped in a remote location, the accused must have intended no assistance to become available to Mr Purse and for death to ensue if it had not already come about.
The role of C
As far as C is concerned, I am satisfied beyond reasonable doubt, on the evidence before me, that from the time he came in and entered the fray until he deposited Mr Purse’s body in his car, to be dumped in a remote location, he also intended, at the least, to cause really serious bodily harm to Mr Purse. Soon after Mr Purse’s arrival at the Kilburn unit, C demonstrated his malevolence and a foreshadowing of events to come. After Mr Purse had been punched and his wrists taped, C said to him, “You’re a bit fucked [there] aren’t you mate”. C was a trusted friend of the accused and was reliant on the accused as his drug supplier. C participated by kicking and punching the stabbed and bleeding Mr Purse to the head and body while wearing “ASICS” running shoes, by participating in the 30 second incident and by putting Mr Purse in his car boot intending to dump his body. The punches and kicks were directed to the head, stomach and chest; at least four stomps and six punches from C, “a big boy” who gave “harder” or “heavier” hits than did the accused.[280] C plainly intended the 30 second incident to be life ending. Notwithstanding all of the violence to this point, C was sufficiently concerned to direct B to turn away whilst he intended that something even more horrifying and final was to occur.
[280] T338.
I accept that C and the accused wanted Mr Purse to stop making wailing noises. However, a person can act with more than one intention. Both the accused and C intended to cause really serious bodily harm to Mr Purse because they wanted to and in order to stop the noise.
The stabbing wound as a substantial cause of death
C was not involved in the stabbing of Mr Purse. I have set out the elements of murder towards the beginning of these reasons. In the event that the act of stabbing was a substantial cause of death, I would be satisfied that the accused would be guilty of murder. He will have: committed a voluntary and deliberate act causative of death (elements (i) and (ii)), intending at the time, at the least, to cause really serious bodily harm (element (iii)) and in circumstances where the killing of Mr Purse was unlawful (element (iv)).
The post-stabbing acts of assault – joint and extended joint criminal enterprise
The fact that the accused continued to assault Mr Purse by participating with C in the kicking and punching and in the 30 second incident has been established. However, the extent of and precise nature of his participation is not clear on the evidence. It is possible that C, a man bigger than both Mr Purse and the accused, entered the fray as the primary aggressor. It is not possible to say which of the many actions caused death or who committed the fatal act or acts.
In these circumstances and when considering whether the accused is criminally liable for the conduct he engaged in together with C after Mr Purse had been stabbed, the doctrines of joint criminal enterprise and extended joint criminal enterprise need to be considered.
In Miller v The Queen,[281] the plurality explained the two doctrines as follows.[282]
The law, as stated in McAuliffe, is that a joint criminal enterprise comes into being when two or more persons agree to commit a crime. The existence of the agreement need not be express and may be an inference from the parties’ conduct. If the crime that is the object of the enterprise is committed while the agreement remains on foot, all the parties to the agreement are equally guilty, regardless of the part that each has played in the conduct that constitutes the actus reus. Each party is also guilty of any other crime (the incidental crime) committed by a co-venturer that is within the scope of the agreement (joint criminal enterprise liability). An incidental crime is within the scope of the agreement if the parties contemplate its commission as a possible incident of the execution of their agreement. Moreover, a party to a joint criminal enterprise who foresees, but does not agree to, the commission of the incidental crime in the course of carrying out the agreement and who, with that awareness, continues to participate in the enterprise is liable for the incidental offence (“extended joint criminal enterprise” liability).
(Footnote omitted)
[281] (2016) 259 CLR 380.
[282] At [4] (French CJ, Kiefel, Bell, Nettle and Gordon JJ).
In Mitchell v The King,[283] a plurality explained as follows.[284]
The doctrine of joint criminal enterprise or common enterprise is based on agreement (also expressed as common purpose, design, or enterprise). Whether the agreement is expressed in words or inferred “from the parties' conduct”, each party to an agreement to commit a crime will be guilty of the agreed crime and any crime “within the scope of the agreement”. It is therefore essential to identify what acts and omissions the parties agreed upon. The agreement need not be express and may be an inference drawn from the parties' conduct, but it must be subjectively appreciated by the accused. The scope of such an agreement has therefore been expressed as involving matters that each party subjectively considered. In this respect, “it is essential to identify what the parties did agree upon and what it was that each contemplated might occur”, which requires consideration of whether each party contemplated the criminal acts “as a possible incident of the execution of their agreement”. But the jury must be satisfied that each party subjectively agreed (authorised or assented) to the conduct, including the criminal act. Hence, the “true position” for nearly two centuries has been that “if one of the [parties to the agreement] goes beyond what has been tacitly agreed as part of the common enterprise, [the other party] is not liable for the consequences of that unauthorised act”.
Joint criminal enterprise is a principle of primary liability based on a form of agency. The acts of the perpetrator that are within the scope of the agreement, and therefore done with the authority of the other parties, are attributed to the other parties to the agreement. That is, “if several persons act together in pursuance of a common intent, every act done in furtherance of such intent by each of them is, in law, done by all”. It is in this sense that joint criminal enterprise is a form of primary liability: all parties are liable as principals in the first degree because those persons who do not physically perform the acts are acting in concert and have the relevant mens rea. Accordingly, the liability of each party is not derivative, but primary. Hence, all those things done “in accordance with the continuing understanding or arrangement … which are necessary to constitute the crime” are attributed to all parties to the agreement and “they are all equally guilty of the crime regardless of the part played by each in its commission”.
(Footnotes omitted)
[283] (2023) 276 CLR 299.
[284] At [54]-[55] (Gordon, Edelman and Steward JJ).
The elements of joint criminal enterprise, all of which must be established beyond reasonable doubt for the prosecution to succeed, are.
(i)The accused entered into an agreement, arrangement or understanding with another person, in this case, C, to kill or inflict really serious bodily harm on Mr Purse;
(ii)one or more of the parties to the agreement, arrangement or understanding committed an act or acts which was or were voluntary and deliberate and which caused the death of Mr Purse;
(iii)at the time of the act or acts causal of death, the party or parties who committed the act or acts intended to kill, or cause really serious bodily harm to Mr Purse;
(iv)at the time of the act or acts causal of death, the accused remained a party, that is, had not withdrawn from the agreement, arrangement or understanding; and
(v)the act or acts causal of the death of Mr Purse were unlawful.
Liability under the doctrine of extended joint criminal enterprise requires the following to be established.
(i)The accused entered into an agreement, arrangement or understanding with another person, in this case, C, to commit an assault against Mr Purse (the agreed offence);
(ii)the accused participated in that agreement;
(iii)in the course of carrying out the agreed offence, another party, in this case, C, committed the charged offence; and
(iv)the accused had foreseen or contemplated that another party, in this case, C, may commit the charged offence.
In the case of either doctrine, the necessary agreement, arrangement, or understanding does not need to have been planned, negotiated or discussed. It can be spontaneous and tacitly arrived at by inference from the parties’ actions.
Likiardopoulos v The Queen[285] concerned facts with some similarities to the present case. A number of alleged offenders had participated from time to time over a period of two days in a series of assaults on the deceased. It was not established that any one alleged offender had been present throughout the whole of the violence inflicted on the deceased. It was open to conclude that death had been occasioned by the various assaults, although no particular act or acts could be identified as causal. A plurality, in the factual context before them, explained the doctrine of joint criminal enterprise in this way.[286]
On the principal case, the appellant was liable for the murder of the deceased under the principle of criminal responsibility variously described as joint criminal enterprise, common purpose or concert. On this analysis, it was necessary to prove that the appellant was a party to an understanding or arrangement, whether formed expressly or tacitly, with John Likiardopoulos, Aydin and Singh, to inflict really serious injury on the deceased and that, while that arrangement was on foot, one or more of the parties to it did the acts which caused death intending thereby to do really serious injury to him. The appellant’s participation in the enterprise while possessed of the requisite intention (here, to inflict really serious injury) operates to fix him with liability for the acts of the other parties carried out in pursuance of it. On the principal case, the appellant’s liability is direct and, as his argument acknowledged, his amenability to prosecution for murder is unaffected by the Director of Public Prosecutions’ (the Director) acceptance of pleas to lesser offences from all of the other parties to the joint criminal enterprise.
(Footnotes omitted)
[285] (2012) 247 CLR 265.
[286] (2012) 247 CLR 265 at [19] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).
The present case could be analysed as one of extended joint criminal enterprise. However, on the basis that one or more of the different acts of assault perpetrated by the accused and C together was a substantial cause of death, I would be satisfied of the accused’s liability for the murder of Mr Purse on the basis of the simpler, joint criminal enterprise doctrine.
I am satisfied beyond reasonable doubt on the evidence discussed already in a number of contexts that, after B went outside and spoke to C, C returned to the Kilburn unit and upon entering had or formed the intention of assisting the accused, as necessary, to deal with Mr Purse. Nothing was said, but by their actions it is to be inferred that the two spontaneously and tacitly agreed to join with each other in a common understanding or purpose that they would act in concert to silence Mr Purse by inflicting really serious bodily harm on him (element (i)). The voluntary and deliberate actions of one or both caused the death of Mr Purse (element (ii)). Throughout the period of the assaults, they each intended to inflict really serious bodily harm (element (iii)) and neither, at any time, withdrew from the implicit understanding initially arrived at (element (iv)). The actions of both plainly were unlawful (element (v)).
As far as extended joint criminal enterprise is concerned, on the arrival of C an agreement or understanding between the accused and C that Mr Purse was, at the least, to be physically assaulted by both is to be inferred from their conduct (element (i)). The accused participated in that agreement (element (ii)). In the course of carrying out the assault, either the accused or C or both committed an act or acts with the intention of causing really serious bodily harm to Mr Purse which act or acts caused his death (element (iii)). As far as the accused is concerned, if it was his act or acts that satisfied element (iii), ipso facto he is guilty of murder. However, if it was an act or acts of C that satisfied element (iii), the possibility that C might commit an act or acts causal of death with the intention of causing, at the least, really serious bodily harm, was in the contemplation of and foreseeable by the accused. Again, the actions of both plainly were unlawful (element (iv)).
In adopting the above analyses, I have not overlooked B’s evidence that, early on during the altercation, she was led to understand that the accused and C intended to take Mr Purse away in the car and to leave him somewhere to “walk it off”.[287] This conversation occurred before the knife and subsequent incidents. This notion was not referred to by the accused in his evidence. Even if this had been the intention of the accused and C at an early time (and the evidence does not permit such a finding) it was without any reasonable doubt superseded by the time Mr Purse started to resist and the knife was produced by the accused.
[287] T278-279, 308.
A single ongoing criminal act
The prosecution contends that the violence perpetrated on Mr Purse by the accused, initially alone but later together with C, in the Kilburn unit should be characterised as one ongoing criminal act.
A continuous attack that the accused instigated, was at all times party to, and in fact, was the primary protagonist of. Viewed in that way, the accused’s act – that is the sustained violence inflicted upon [Mr] Purse – is the sole cause of death.
It is unnecessary that I form a concluded view as to the correctness of this submission. However, the various authorities dealing with causation as a practical commonsense issue, helpfully summarised by Peek J in R v McCarthy,[288] and my finding concerning the accused’s specific intent as at the time of the stabbing and at all material times thereafter, support the conviction of murder on this simpler, more direct, basis.
[288] [2015] SASCFC 177 at [335]-[342].
Conclusion
I find the accused, Mark-Bry Andrew Leedham, guilty of the murder of Michael Jeffery Purse.