R v Maxwell - [2024] NSWSC 1576

Supreme Court

New South Wales

Medium Neutral Citation: R v Maxwell [2024] NSWSC 1576
Hearing dates: 4, 5, 6, 7, 8, 11, 12, 13, 14, 18, 19, 20, 21, 25, 26, 27, 28 November 2024 and 2 December 2024
Date of orders: 04 December 2024
Decision date: 04 December 2024
Jurisdiction: Common Law
Before: Cavanagh J
Decision:
(1) The accused is not guilty of the murder of Shane De Britt.
(2) The accused is not guilty of participating in a criminal group and contributing to criminal activity.

Catchwords:
CRIMINAL LAW – special hearing – murder – Crown case based on joint criminal enterprise or extended joint criminal enterprise – no dispute that deceased shot but not by accused – where accused suffers from schizophrenia, intellectual disability and a hearing impairment – dispute at to whether the accused was present at the time plans to kill the deceased were discussed and his ability to comprehend such statements – dispute as to whether the accused ever left the car which he travelled to the deceased’s property in – multiple witnesses criminally concerned in the events and already convicted

Legislation Cited:
Crimes Act 1900 (NSW), ss 18, 93T
Criminal Procedure Act 1986 (NSW), s 166
Evidence Act 1995 (NSW), ss 128, 165, 191
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 36, 54, 56, 58, 59

Cases Cited:
Gillard v The Queen (2003) 219 CLR 1
Pollard v R (2011) 31 VR 416
Robertson v R [2024] NSWCCA 99

Category: Principal judgment
Parties: Rex (Crown)
James Maxwell (Defendant)
Representation:
Counsel:
M Swift (Crown)
T Evers (Defendant)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Takchi & Associates (Defendant)

File Number(s): 2020/00278213
Publication restriction: Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) there is to be no publication of any information tending to reveal the identity of the witnesses known as DD and HH

JUDGMENT

On 14 January 2020, Shane De Britt (the deceased) was shot and killed in his home in Eurimbla, NSW. The cause of his death was a single shot to the head as he lay in his bed. The defendant (who I will call the accused), James Maxwell, has been charged with his murder contrary to s 18(1)(a) of the Crimes Act 1900 (NSW).
A number of other persons have already been convicted of offences associated with Mr De Britt’s death. Indeed, this appears to be the last of the proceedings arising out of the death of the deceased.
On 12 September 2023, pursuant to s 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (“MHCIFP Act”), the accused was found by Yehia J to be unfit to be tried for the offence the subject of the indictment filed against him (that is the murder of the deceased). Her Honour also found that the accused would not become fit to be tried for the offence during the period 12 months thereafter. The accused was remanded in custody pending consideration of whether further proceedings would be pursued.
On 10, 11, 12 and 16 September 2024, I heard preliminary evidentiary applications which resolved without the need for any judgment.
On 16 September 2024, the accused gave notice of his election to proceed by way of a jury (s 58(1)(b) MHCIFP Act). On 23 October 2024, the accused altered his position and elected to proceed by way of special hearing by judge alone (s 58(2) MHCIFP Act).
The matter proceeded before me by way of a special hearing by judge alone during the period 4 November 2024 – 2 December 2024.
I conducted the special hearing as if it were a trial (s 56(1) MHCIFP Act). Contrary to the suggestion of counsel for the accused, I am not engaging in an inquiry in which the rules of evidence might be relaxed, although the court may modify court processes to facilitate effective participation by the defendant in the special hearing (s 56(2) MHCIFP Act).
The accused did not enter a plea but is taken to have entered a plea of not guilty.
As set out in s 54 of the MHCIFP Act, the purpose of a special hearing is:

“…ensuring, despite the unfitness of the defendant to be tried in accordance with the normal procedures, that the defendant is acquitted unless it can be proved to the required criminal standard of proof that, on the limited evidence available, the defendant committed the offence charged, or another offence available as an alternative to the offence charged.”

As set out in s 59(1) of the MHCIFP Act, the verdicts available at a special hearing include:

(a) not guilty of the offence charged,
(b) a special verdict of act proven but not criminally responsible,
(c) that on the limited evidence available, the defendant committed the offence charged,
(d) that on the limited evidence available, the defendant committed an offence available as an alternative to the offence charged.

During the hearing, counsel for the accused, Ms Evers, confirmed that the accused was not seeking a special verdict of act proven but not criminally responsible. The hearing proceeded on the basis I would enter a verdict of either (a) or (c).
As required by law, I set out my reasons for determination in this special hearing including the principles of law I have applied and the findings of fact on which I have relied (s 59(2) MHCIFP Act).

The Crown case

The Crown’s case is that the liability of the accused arises as follows:

As a participant in a joint criminal enterprise (“JCE”) to kill the deceased; alternatively

As a participant in a joint criminal enterprise to at least inflict grievous bodily harm on the deceased; alternatively

As a participant in an extended joint criminal enterprise to assault the deceased, and it was in his contemplation that grievous bodily harm may be intentionally inflicted on the deceased.

There were agreed facts tendered pursuant to s 191 of the Evidence Act 1995 (NSW) comprising of 197 agreed facts. Much of the background and the context to the death of the deceased is not in dispute.
Further, having regard to the way in which the hearing was conducted, there could not be any dispute about some other matters, including that the accused was at the house the night when the JCE is alleged to have formed and then travelled in a car to the property of the deceased.
Having said that, there is no agreement as to the role or involvement of the accused (if any) in the death of the deceased. There is no agreement as to what actually happened at the property of the deceased, other than that he was shot in the head as he lay in his bed.
There is no dispute that the deceased was shot by someone in the group of men who travelled to his house that night. The issue in these proceedings is whether the accused was part of the JCE or extended JCE plainly entered into that night by other members of the group before the killing of the deceased.

Legal Principles and elements

I have applied the following legal principles in reaching my verdict in these proceedings.

Presumption of innocence

The accused is presumed to be innocent, unless and until the prosecution proves that the offence charged was committed. The accused is not required to prove his innocence.

Onus and standard of proof

The prosecution bears the onus of proof. The onus remains on the Crown from beginning to end.
The standard of proof is beyond reasonable doubt. Those words do not require explanation and are to have their ordinary English meaning. The matters which the Crown must establish beyond a reasonable doubt are the essential elements of the offence of murder. The Crown is not required to prove every disputed fact to such standard.
I remind myself that if there is a reasonable possibility that the accused did not commit the offence with which he is charged, I must find that he is not guilty of the offence.

Elements of murder

The essential elements of the murder charge which the Crown must prove beyond reasonable doubt are that the accused, as part of a joint criminal enterprise with another:

Did a voluntary act which caused the death of the deceased; and

such an act was committed with:

an intent to inflict grievous bodily harm; or

an intent to kill; or

with reckless indifference to human life.

Joint criminal enterprise

As I have already indicated, a number of persons have already been convicted of the murder of the deceased on the basis that, although the Court could not determine who was the actual shooter, they were participants in a joint criminal enterprise to kill the deceased. It is not necessary to consider the elements of the offence of murder further.
The accused is alleged by the Crown to be similarly liable in the sense that the Crown does not suggest that the accused was the shooter or that he was even in the room when the deceased was shot but that, at the time the deceased was shot, the accused was a participant in a joint criminal enterprise to shoot him or assault him contemplating that grievous bodily harm may be intentionally inflicted.
Guilt based on joint criminal enterprise necessarily requires the Crown to establish that the accused shared a common purpose with other persons to kill or assault the deceased. As I observed in Robertson v R [2024] NSWCCA 99 at [68]:

“As is well-known, guilt based on joint criminal enterprise necessarily requires the Crown to establish that the person so liable shared a common purpose (see Gillard v The Queen (2003) 219 CLR 1; [2003] HCA 64 (“Gillard”) at [109]). As explained by Hayne J in Gillard at [110]:
‘In its simplest application, the doctrine of joint criminal enterprise means that, if a person reaches an understanding or arrangement amounting to an agreement with another or others that they will commit a crime, and one or other of the parties to the arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, all are equally guilty of the crime regardless of the part played by each in its commission.’

(Emphasis in original).”

The essential issue on this hearing is whether the accused had reached an understanding or agreement with others that the crime would be committed and that the shooting took place in accordance with that continuing understanding or agreement.
To establish the guilt of the accused, the Crown must establish that what happened in the commission of the crime was done in accordance with the accused’s continuing understanding or agreement or participation. That does not mean that the Crown must establish that the accused played some specific or active role in the shooting of the deceased but it is necessary for the Crown to establish both that the accused entered into the agreement and that, at the time of the shooting, the accused remained a participant in the agreement or, as explained in Gillard, continued to share the common purpose with the other participants in the agreement.
The Court may infer from words or conduct that a person entered into the agreement to commit the crime. It is not necessary that the Crown adduce evidence of actual words spoken to establish that common purpose. In many cases such evidence will not be available. Whether the entry into the agreement is inferred through evidence of the accused’s conduct or is evident from things actually said, the onus remains on the Crown to prove the entry into the agreement to participate in that common purpose beyond a reasonable doubt.
The Crown acknowledges that:

“Mere presence at the scene of the crime and knowledge of the crime is not sufficient for criminal responsibility. Non-accidental presence does not of itself amount to encouragement. The same applies where joint criminal enterprise is relied upon. The accused be proven to have assisted or encouraged the principal by a positive act. Being a mere passive spectator of a crime is not sufficient, though deliberate presence at the scene may constitute evidence of an intentional encouragement (see R v Jones and Mirrless (1977) 65 Crim App 250; R v Clarkson [1971] 1 WLR 1402, 55 Crim App r 445; R v Bland [1988] Crim LR 41, [1987] EWCA Crim 1).”

In this matter, the Crown relies both on the assertion that the accused was a participant in the JCE to kill the deceased and, in the alternative, that the accused was a participant in an extended JCE, in the sense that there was an agreement to at least assault the deceased. The Crown says that in either case the accused would be guilty of murder.

Relevant persons

The following persons or groups assumed particular significance in the trial. I have set them out below for ease of reference:

The Bandidos – the Bandidos is an outlaw motorcycle gang otherwise known as a “1% club”.

The Grudge Bringers (“GBs”) – a small motorcycle club started in 2015 centred around the Orange-Wellington area.

The deceased (also known as “Wock”) – was President of the Central West chapter of the Bandidos.

Philip Woods – founder and President of the GBs.

Brenton Hayes (also known as “BJ”) – member of the GBs and operator of the Menace Ink tattoo shop in Wellington.

Brendon McLachlan (also known as “Mud”) – member of the GBs and “road captain” of the GBs.

Amanda McCauley (also known as “Skitz”) – member of the GBs and club treasurer – held herself out as President of the GBs in 2019 – partner of Aaron Thompson.

Jace Harding (also known as “Jace”) – Vice President of the GBs and partner of Debbie-Jean Clarke.

Debbie-Jean Clarke – member of the GBs and partner of Jace Harding.

Brian Farnsworth (also known as “Belly”) – member of the GBs and “guardian” in the club.

The accused (also known as “JD” or “JD man”) – member of the GBs and appointed a “guardian” of the club;

Trudi Schwarz – partner of Brian Farnsworth.

DD – member of the GBs and owner of the Toyota Yaris used in the commission of the offence.

HH – former member of the GBs and associate of Brenton Hayes.

AN – worked at the Wellington Hotel.

Background

In 2015, Phillip Woods founded a motorcycle club known as the Grudge Bringers (“GBs”). It was intended to be a social club, albeit as events progressed in late 2019 and 2020, its members became embroiled in a dispute with the Central West chapter of the Bandidos, an outlaw motorcycle gang.
As it turned out, Woods must have been slow to recruit membership to his club because by 2019 there appears to have been less than 20 members, some of whom did not even own a motorcycle. Woods allocated roles to some of the members, but it is unclear whether this was to give the appearance of a “proper” club or whether the titles actually meant something. What actually happened appears to have been directed very much by Woods, Hayes and McCauley.
In 2019, Woods was working in a tattoo shop in Wellington known as Menace Ink which was operated by Hayes. Some of the members of the GBs used to frequent Menace Ink and some of them received tattoos there. Some members of the GBs went on bike rides together although it seems that cars were also permissible.
Persons such as Amanda McCauley described the main purpose of the group as undertaking charitable events. It is apparent that they did do some charitable work, although the examples of such work were rather limited.
The deceased was the President of the Central West chapter of the Bandidos. He had been diagnosed with cancer and his life expectancy was somewhat uncertain. He resided with his partner, Helene Beveridge, at a property in Eurimbla. The house was situated in a remote area with the road leading to the house being unsealed.
The origins of the dispute between the GBs and the Bandidos is not entirely clear but it seems to have stemmed from the deceased’s unhappiness with the very existence of this upstart club in the Orange and Wellington area and Mr Woods’ determination to not be intimidated by the Bandidos.
Tensions commenced to escalate between the Bandidos and the GBs when a member of the Bandidos attended at Menace Ink wearing Bandidos patches, contrary to the deceased’s undertaking that Bandidos members would not wear their patches in the shop.
There followed an exchange of Facebook messages between Woods and the deceased, with the deceased threatening Woods and Woods purporting to stand up to the deceased.
The deceased also became concerned about the GBs expanding their membership into Wellington. Following the Wellington Hotel assuming new ownership, members of the GBs including Woods and Hayes commenced spending more time at the Wellington Hotel. The new licensee, Mark Brisbane, agreed that the GBs could use the hotel as a meeting point.
On or about 21 or 22 November 2019, Hayes told Brisbane that a group of Bandidos were intending to have lunch at the hotel on 23 November 2019. He urged Brisbane to call the police and give the police a “heads up” so that the Bandidos would be stopped by the police. There is no evidence that Brisbane did so.
AN worked at the Wellington Hotel. At one point, he was thought to be the person who told the police about the Bandidos’ plans to attend the Wellington Hotel but he did not do so. Unfortunately, he lived in fear of his life for some period because of this misunderstanding.
In any event, the members of the Bandidos were stopped by the police as they were coming into Wellington to have lunch. They were turned around and not permitted to enter the area. This caused considerable anger in the ranks of the Bandidos. Suggestions were made of a “rat” in the ranks of the GBs.
The conflict between the two groups continued to escalate. Woods arranged a meeting at Menace Ink to discuss the GBs response to the Bandidos. After Woods told everyone in attendance to hand over their phones, they all then drove to a meeting point on the Mitchell Highway for the purposes of discussing the escalating tension.
There were quite a number of people at this meeting at the Mitchell Highway, including HH and Woods and those that had come from Orange including McCauley, Thompson, the accused, Harding, Clarke and Farnsworth.
There is no agreed fact as to what happened at this meeting or what was said. What happened at the meeting and what was said was the subject of evidence from a number of witnesses. I will come back to that when considering the evidence of the witnesses. It is clear that the accused was at this meeting. It is less clear what might have been said and what he heard and what he thought.
The conflict continued to escalate in late November and into December 2019 with the deceased being particularly concerned to get to the bottom of who called the police on the Bandidos at Wellington. There were various Facebook messages and conversations in particular between McCauley and the deceased and McCauley and Woods.
On 10 December 2019, Woods advised the members of the GBs through the Facebook group chat that he was planning on affiliating the GBs with the Rebels outlaw motorcycle gang. The deceased reported the actions of Hayes and Woods to the Bandidos’ National Vice President.
Around this time, McCauley and Woods decided that Woods would step down from the GBs and McCauley would become the President. This was apparently to take the heat off the GBs. The deceased was so informed.
I am uncertain whether that actually occurred but at least McCauley was keen to let the deceased know that it had. McCauley was in regular contact with the deceased and was even exchanging Facebook messages with him on the night of 13 January. There is no evidence that she knew he was about to be killed.
On 11 January 2020, the Bandidos announced that they would be taking patches or “cuts” from the GBs by force. The deceased said that he knew McCauley, Woods and Hayes had been deceiving him about their involvement in the GBs. Further, members of the Bandidos had assaulted Harding outside of his place of work, seemingly in an attempt to get his cuts.
At 2:24pm on 11 January 2020, a member of the Bandidos sent McCauley a Facebook message demanding an urgent meeting. They agreed to meet at McDonalds in Orange at 4:30pm.

As is shown from the CCTV footage, McCauley attended as did the accused. Clarke was also present, as were other members of the GBs including Thompson.
A number of members of the Bandidos attended. The discussion between McCauley and members of the Bandidos appears to have been short. It ended with the Bandidos threatening McCauley and wanting to take the meeting elsewhere. Again, although the accused was present, there is no evidence that he actually said or did anything, other than being present.
On Sunday 12 January 2020, the deceased told his partner, Ms Beveridge, that Woods had declared war on the Bandidos Central West chapter and told her to be careful.
The deceased was, as I have said, shot as he lay in his bed in the middle of the night on 13/14 January 2020. The deceased’s bedroom was located at the front of the house and Ms Beveridge slept at the rear of the house.
The attendance of a number of men at the deceased’s house that night was the culmination of the increasing conflict between the Bandidos and at least some members of the GBs.
On my analysis of the evidence, this conflict was driven very much by the deceased on the one hand and Woods and Hayes on the other. McCauley was directly involved. Whilst, as I will explain, I did not accept much of her evidence, it was apparent that she was, at the time, at least trying to “cool” the dispute by becoming president herself and continuing to talk directly to the deceased.
The result of this escalating conflict is that:

the deceased is dead;

the GBs no longer exist;

Woods has been convicted of murder and sentenced to a term of imprisonment of 28 years with a non-parole period of 17 years and 6 months;

Hayes has been convicted of murder and sentenced to imprisonment for 20 years and 3 months with a non-parole period of 13 years and 2 months;

McLachlan has been convicted of murder and sentenced to imprisonment for 23 years with a non-parole period of 14 years and 11 months;

Farnsworth has been convicted of murder and sentenced to imprisonment for 23 years with a non-parole period of 11 months;

DD has been convicted of lodging a fraudulent insurance claim for the Toyota Yaris and sentenced to a 12 month conditional release order without conviction; and

McCauley has been convicted of being an accessory after the fact to murder and possessing a prohibited firearm. She was sentenced to imprisonment for 3 years and 6 months with a non-parole period of 2 years and 1 month.

As I have indicated, the accused was found unfit to be tried and thus was not tried at the same time as the co-accused. As far as I am aware, he is the last person to be facing charges arising out of the death of the deceased. He was arrested on 24 September 2020 and has thus already been in custody for 4 years.

The evidence

The Crown relied upon evidence and statements from a number of persons who have already been convicted of offences relating to the death of the deceased. The Crown also adduced evidence from the officer in charge and a police ballistics expert, Mr Dusting.
The Crown adduced evidence from the medical expert it obtained for the fitness hearing, Dr O’Dea. The accused adduced evidence from two medical experts who were also obtained for the fitness hearing, Dr Lennings and Dr Ellis.
It is trite to suggest that cases turn on evidence. I am determining whether the accused committed the offence on the limited evidence in these proceedings, albeit the hearing was conducted like a trial and it is difficult to anticipate what other evidence there might have been other than evidence from the accused (should he have chosen to give evidence).
I am determining whether the accused committed the offence on the basis of JCE or extended JCE in circumstances in which there is no suggestion that he was an organiser or planner of the shooting or that he entered the premises of the deceased at the time of the shooting (unlike HH, Farnsworth, McLachlan and Harding).

Evidence of the Officer in Charge

Detective Sergeant (“DS”) Lovell gave evidence on the first day of the hearing. On the second day of the hearing, a view of the various relevant locations was undertaken. DS Lovell provided an explanation of the events which are alleged to have happened at each place, which I found quite useful. As I indicated, I would not take the officer’s statements as to what happened as evidence of the fact unless they were not in dispute or unless they were matters about which he had personal knowledge.
These proceedings are the culmination of a lengthy and extensive investigation conducted by DS Lovell and many other police officers. Other than setting the scene and providing a means by which documents were adduced into evidence, DS Lovell’s evidence was simply a summary or recitation of the results of police inquiries. After DS Lovell had nearly completed his evidence in chief, Ms Evers indicated she opposed him staying in court for the remainder of the hearing as she would be cross-examining him at a later point in the special hearing. I understood that for some reason Ms Evers did not wish the officer in charge to hear the evidence of the lay witnesses presumably on the basis that there was some particular aspect of their evidence which she wished to raise with the officer.
However, at the end of the hearing a month later, she did not ask him any questions.

Evidence of DD

DD was a member of the GBs. He joined the GBs because he was seeking company. He did not own a motorbike but during the period of his membership Hayes bought him a car, being a Toyota Yaris. He never went to any GBs meetings. He did not even go on any rides or to any charity events. He appears to have become involved in the GBs through the Menace Ink Tattoo Parlour.
He remembered meeting the accused at the tattoo parlour. He identified him as JD man and recalled he had a tattoo on his left arm. JD owned a ute with a camouflage cover. He also met the accused at a McDonalds’ “McHappy Day” function.
When DD became aware of the conflict between the GBs and the Bandidos, he sought to be removed from the Facebook group chat. He presented in Court as highly anxious, struggling to get his words out on some occasions.
Although Hayes bought the car for DD, it seems that Hayes used the car whenever he wanted. In early January in 2020, DD was asked to drive from Wellington to Dubbo and then take Hayes to the Menace Ink shop. Whilst there, Hayes asked him to climb a ladder and retrieve something. It turned out to be a gun wrapped in blanket. This was DD’s first exposure to anyone associated with the GBs having a gun. He was subsequently asked to drive to a property in Stuart Town being HH’s house where he saw a pile of guns.
DD went to Woods’ house on 12 January 2020. He recalled that Woods and Hayes were there and Harding turned up later. He heard Woods say that it wasn’t going to happen tonight. He understood that to be a reference to the shooting of the deceased.
There are text messages between DD and a friend of his which tend to confirm that DD was at Woods’ house on 12 January 2020. I accept that DD was at this stage becoming increasingly anxious about what was happening and was seeking a way out.
Be that as it may, on 13 January 2020, he was asked by Hayes to go to Woods’ house with his car. He was also asked to pick up HH from Stuart Town. After doing this and filling up the car with petrol, he went to Woods’ house. He recalled that Hayes, Woods, McLachlan and Harding were there. He thought Farnsworth turned up later. He recalled that McCauley and Clarke also turned up later.
At some later time in the evening, he saw the accused there. He thought the accused was the last to arrive. He observed Harding and McLachlan were cleaning a gun in the lounge room. He saw there were 4-6 guns with ammunition in a duffle bag in the lounge room. He saw Harding and McLachlan cleaning two other guns. He recalled there were some long conversations with people in the lounge room involving Hayes, Woods, McLachlan, HH, Harding, Farnsworth and him. He did not say the accused was present during these conversations.
However, he did say there was a further conversation and identified the accused being present during this occasion. His evidence as to what Woods said was as follows:

“He said that, ‘It was going to happen tonight, anyone that was in the house’ - meaning Wok's place – ‘was to be shot as well’. As well as his wife - well, Wok's wife if she's there. Phil said, ‘They'll only be collateral damage, no witnesses.’”

He could not recall what Hayes said after that but thought Hayes just confirmed that. He saw some people change their clothes. He saw some people with balaclavas. He thought the accused put on a dark jumper. He was told to drive HH’s ute with Farnworth in it. He saw Farnsworth holding a sawn-off shotgun which he was attempting to hide under his clothing. He was anxious to go home.
I accept that he asked on more than one occasion whether he could go home. He was told to drive the ute to a point on Euchareena Road, which has come to be identified as the “staging point”. When he got there, he saw his Yaris and McLachlan’s 4WD. He could hear Hayes speaking but could not hear what was being said.
In any event, Hayes drove him home to his parent’s house in McLachlan’s Ute. There is no dispute that the Yaris was the vehicle in which those responsible for killing the deceased travelled to the deceased’s house. As that vehicle was owned by DD, he was told to, and did, tell the police the next day that he had hit a kangaroo and had left the Yaris on the side of the road, but the car had disappeared.
In cross-examination, DD accepted that he had previously said that the conversations about the deceased at Woods’ house were “not entirely in my presence”. It was put to him that he was not telling the truth. Having regard to his earlier evidence and that which emerged during re-examination, he had given similar evidence about what was said in the presence of the accused during the last trial.
It seems apparent that DD did not want to be involved in the conflict with the Bandidos. Unlike a number of the other witnesses, there was nothing about his evidence which caused me to have a significant doubt about what he was saying. Indeed, much of what he said was not controversial and is established through agreed facts or other evidence.
The significance of DD’s evidence to the case against the accused is that DD had met the accused before 13 January 2020, had seen him participate with the GBs in some way and saw him at Woods’ house on 13 January 2020. However, the significance of his evidence is also that, according to DD, the accused was the last to arrive and he was not there during some of the earlier conversations involving persons who I would describe as the main participants. Nevertheless, according to DD he was there when Woods mentioned there were to be no witnesses to the shooting. In my view, it is also significant that DD did not give evidence of seeing or hearing the accused do or say anything.

Evidence of HH

The Crown adduced evidence from HH, one of the persons who was present inside the deceased’s premises on the night of his death. Indeed, HH admits that he was one of the men who entered the deceased’s bedroom when he was shot and killed. HH denies that he was the shooter.
HH provided a number of statements to the police. He also participated in a walkthrough at the deceased’s premises and the place where the vehicle was burnt after the shooting.
HH’s evidence in chief in these proceedings consisted primarily of the video of the walkthrough. In that walkthrough, he purported to explain what occurred both leading up to and on 13/14 January 2020. He explained that he saw himself as a person who had been asked to go along to keep the others safe. He says he drove the Toyota Yaris.
HH gave the following version of events. On 14 January 2020, four persons, being HH, McLachlan, Harding and “Aaron” travelled in a Toyota Yaris through dirt roads to the deceased's residence in Eurimbla.
HH was the driver and McLachlan was giving directions to the residence. They initially travelled past the deceased's residence however eventually spotted the house and parked up the road. Three of the men exited the vehicle wearing balaclavas, being McLachlan, Harding and Aaron, while HH stayed in the car. The men carried firearms with them which had been loaded into the Yaris hours prior at Mr Woods' house. McLachlan carried a pump action, Harding a shotgun and HH had a .22 lever action in his possession. Aaron carried a lever action rifle.
When McLachlan, Harding and Aaron first approached the house, Harding accidentally fired the shotgun. The three men returned to the car and regrouped. Aaron was struggling to keep up with the men and was out of breath. The men decided to attempt the approach towards the house a second time. HH accompanied Harding and McLachlan on their return.
HH said that he only went into the house after the other three men had returned to the car following a gun going off accidently.
During the walkthrough he described how he had then got out of the car and followed the other two men into the house as they checked the other rooms off the hallway before entering the deceased’s bedroom. He opened the bedroom door with his foot and the other men went in before him. He was carrying a gun but he said that he was not the shooter. Indeed, he said that he thought two guns had gone off at the same time but not his.
After the deceased was shot, they all left the house. As they were proceeding towards the car he came across the person he described as the “big fella” or “Azza” or “Aaron” who seemed to be out of breath. He assisted him back to the car. They all drove off.
He was driving but he did not know where he was going. At one point he was instructed to turn off the road at what appeared to be an RTA road stop. He saw the Yaris being set ablaze although he did not personally do it. He recalls that other cars turned up including one which may have been driven by McCauley.
The effect of what he said in the police walkthrough and thus his evidence in chief in these proceedings was that he was there at all relevant times, but he just went along as he was asked to keep the others safe. He drove them there and followed the other men into the house, but he was not the principal actor or participant.
As emerged during cross-examination, HH was not shy about admitting that he had lied at various occasions when saying things to police to save his own skin. Indeed, in my view, there are a number of problems with HH and his general reliability which include:

When asked during examination in chief whether he wanted to change anything about his earlier statements he nominated only one thing being that he now realised that the person who he had previously referred to as Aaron was, in fact, the accused “JD man”.

He said he only came to realise this following his own sentencing which happened in April 2023. It is not clear why he only came to realise this after he had been sentenced but it follows that, prior to being sentenced, in his statements he had made reference to Aaron or Azza rather than JD man.

In addition to believing previously that the person he identified at the deceased’s premises was Aaron, he identified the man he saw as Aaron as being a large man with tattoos on his legs. He told police in his interview of 30 August 2020 that this large man he thought was Aaron also had tattoos on his legs. It was put to him by counsel for the accused that the accused did not have tattoos on his legs so that it was not merely that HH had the wrong name but the description he gave on at least two occasions of this person does not match that of the accused.

HH accepted on a number of occasions that some of the statements he made to police were untrue and deliberately so. He said he told lies initially to protect himself.

It is difficult to understand which parts of his walk through were now said to be true. By his own admission he was willing to say different things at different times depending on the occasion. He agreed with the cross-examiner that some of his statements consisted of lies and guesses and matters which he could not remember.

Further, there are substantial differences between statements made by him when he did not know his conversations were being recorded and the statements made by him for the purposes of the investigation and the proceedings.

He explained that some of the things he said during the conversations he had with other persons (on social occasions when he did not know he was being recorded) were merely made up because he liked to “big note” himself. That may be so. He certainly seemed to be willing to give the impression that most of the other persons involved did not know what they were doing, that this was not his first rodeo, and really that it was only because of him in the end that the whole thing went ahead.

There was certainly an element of a person trying to boast about his actions during these conversations. It is difficult to know where the truth lies between his assertions to the police that he was merely there to keep the others safe (as if he was not a main player) and his statements to others when being covertly recorded, that there were only 4 people who really did anything and he was one of the prime movers.

It was put to him in cross-examination that he was the shooter, which he denied. The basis of that proposition is not known.

In his interviews in August 2020, and in particular the interview of 30 August, he identified 2 persons as “big fellas”, one he later identified as Farnsworth, the other he called Azza. He said he had seen Azza at the tattoo shop. He said specifically he had two tattoos on his legs. He did not identify anyone called JD man.

HH says that he is telling the truth in these proceedings although he also admits that he has not told the truth on some earlier occasions. HH says that he was sure that JD man was the big fella who was at the deceased premises albeit he only came to realise that in 2023.
I do not accept HH as a reliable witness. I have regard to s 165(1)(d) of the Evidence Act 1995 (NSW). His evidence may be unreliable as he has been found to be criminally involved in the killing of the deceased.
By his own admission, he has been willing to lie when it suits his own purposes. He says that having now agreed to assist police and having received the discount he is telling the truth. On this occasion, his evidence assists in the prosecution against the accused. He has not previously given evidence which would have assisted in the prosecution of the accused.
It is possible that HH was merely mistaken as to the accused’s name. He did not know him at the time. However, he was quite specific in the police walkthrough and in subsequent statements, in identifying the person he described as the big fella or Azza as having tattoos on his legs. He wrongly does not refer to Farnsworth as being at the scene at all. Farnsworth is also a big man.
I am uncertain as to why he would have made that up on earlier occasions. He may have been wrong or lying at the time but I am unable to accept his evidence in these proceedings as being reliable. To the extent that the Crown relies on his evidence to establish that the accused was in the car with HH and was out of the car walking towards the deceased’s premises either before or after the deceased was shot, I am unable to be satisfied of that fact.

Evidence of AN

AN gave evidence. He appears to have been dragged into the developing conflict between the GBs and the Bandidos because of an allegation that he might have informed the police one day that the Bandidos were coming to Wellington. He denied doing so and there is no evidence contrary to that denial.

The purpose of his evidence appears to have been at least a partial identification of what happened at the Mitchell Highway meeting on 25 November 2019. He was in attendance. He gave limited evidence as to who else was there, but I note it is an agreed fact that the following people were there: Ney, HH, Hayes, Streicher, Woods, McCauley, Thompson, Maxwell, Harding, Clarke and Farnsworth. That is, it is an agreed fact that the accused was there.
He explained that the meeting at Mitchell Highway on 25 November 2019 was called by Woods. He said that at this meeting Woods said things to the effect of “we have to make a plan about what to do about the Bandidos”, and “we have to make a plan where we can hit them all at once”. AN also gave evidence that “BJ said that he could organise the cars and he already had the guns.”
AN could not remember much about the events. There was no objection to him refreshing his memory from his earlier statements. He read out parts of his statements. He maintained that when he provided the statements in August 2020, he had a very good recollection of events. He explained that he was living in fear of his life having regard to the threats against him coming from the Bandidos based on the incorrect information provided to them.
He was cross-examined at length about his recollection. It was suggested that he would not have been fearful. It was generally put to him that he was not telling the truth, although it was not clear as to what aspect of his evidence was said not to be truthful.
As I said at the time, I would not accept the premise of the cross-examination that AN was not telling the truth about being fearful of the Bandidos.
I accept that at the Mitchell Highway meeting things were said by Woods and Hayes about a plan to deal with the Bandidos, and that the use of guns was mentioned. The accused was at that meeting although of course there appears to have been quite a number of people at the meeting and whether he heard everything that was said remains uncertain.

Evidence of Jace Harding

Jace Harding was the Vice President of the GBs. He sought and was granted a certificate under s 128 of the Evidence Act. He has also been convicted of the murder of the deceased.
He participated in a walkthrough with the officer in charge on 28 October 2020.
His explanation for his own involvement is that they were all just at Woods’ house playing games and messing around when BJ came over and said that he was going to sort the problem out and he needed back up. They all then just hopped in the car and went out there. He said he did not pay much attention to what was happening because he was half under the influence of drugs. He really did not have a clue as to what it was all about. His view seemed to be that it was all being pushed by Hayes as the Bandidos were interfering with Hayes’ tattoo and drug business. He maintained that they were told to go out to the deceased’s house and scare the shit out of him.
Although he said that everyone loaded their guns (I assume meaning in the boot of the car), he later said that he thought they were all holding their guns from the moment they left Woods’ house. This does not sit well with the other evidence.
He also said that the accused was just handed one and that the accused said he’d been lucky because he had his pointed towards his chest as they went over the bumpy roads.
Harding was one of the men who entered the deceased’s house when the deceased was shot. He says that he did not know when he got there that the deceased would be killed. He thought they were going to put the wind up someone. He thought there might be some “kneecapping”, that is breaking his legs, or some sort of touch up or assault.
However, he agreed that he was carrying a gun when he went into the house.
In his walkthrough he said that JD had been following them after they got out of the car but he was too slow. He went back to the car and got HH instead.
In his further evidence in chief, he said he did not ever hear Woods give an instruction that there were to be no witnesses left in the house. This conflicts with the evidence of DD. All of the evidence is that Harding was at Woods house at all relevant times and certainly there just before they left in the Yaris. It is surprising that he did not hear what may have been Woods’ final instruction.
Harding knew the accused through McCauley. He gave some evidence about some interactions with the accused, his impressions and some limitations of the accused.
He said he did not know whether the accused was present at Woods’ house when Woods was talking because he didn’t know when the accused arrived at the house. In cross-examination he agreed with many of the propositions put to him about the accused generally, that is he was a follower, he was simple minded, he was protective of women, he had mental health issues, and he used to see things that weren’t there.
He agreed that he had been threatened on the way away from the deceased’s house in the car. He was cross-examined about precisely what happened inside the deceased’s house and where he was, agreeing that he had said HH had kicked the door open. It was suggested that he had agreed with the police that McLachlan was the shooter only when police had told him that.
I remind myself that having regard to s 165(1)(d) of the Evidence Act that Harding may be an unreliable witness.
The Crown submits that I could generally accept his evidence and that I should accept through his evidence that:

The accused was present at Woods’ house.

He travelled in the Yaris originally to Euchareena Rd and then to the property of the deceased.

Harding, Farnsworth and the accused were coming as back up and didn’t have to do anything, but Woods and Hayes said they would not be leaning on them because of their health conditions.

He thought they were going there for “kneecapping” or “touch ups” or “putting the wind up them”.

Further, and relevantly, the Crown says that his evidence that the accused said he was lucky that he had a gun pointed at his chest whilst they were driving out there, meaning he was lucky it didn’t go off, should be accepted as an admission with similar evidence having been given by McCauley.

The Crown says that I should also accept that Harding was holding the gun that accidentally went off, that is after they left the car, and that he had initially observed the accused behind them as they went towards the house, albeit he said to Farnsworth that he should come because the accused was too slow.

The problem with Harding’s evidence is that he, like some of the others, seeks to minimise his role by suggesting that he was just back up. He claimed in the walkthrough that although he was entering the property carrying a loaded gun when he saw the others running into the property with their guns, he said to them, “what are youse doing? ... aren’t we here to fucking scare, aren’t we here to put the wind up him?”
Further, he gave inconsistent evidence about whether Woods said something about there being no witnesses. In his statement, he suggested that Woods had said that, but he maintained that he did not hear it said on this occasion. A suggestion of leaving no witnesses might be difficult to reconcile with Harding’s suggestion that he was just there to put the wind up someone.
His version of what happened at the deceased’s property is quite different to that of HH and Farnsworth. I find it difficult to know what parts of his evidence, including his walkthrough, and his evidence in these proceedings, might be true. The Crown asks that I accept part of his evidence but presumably not all of it. I have some reservations about a number of his statements.

Evidence of Brian Farnsworth

At the time of the events the subject of these proceedings, Brian “Belly” Farnsworth and his partner were living with the accused and Mrs Maxwell. Farnsworth was a member of the GBs and was generally aware of the developing conflict between the Bandidos and the GBs.
He said in evidence in chief that after he came home on 13 January 2020, the accused suggested they go to Woods’ house. He went with the accused to Woods’ house. He remembers standing in the lounge room. He does not remember anyone eating or drinking or video games being played. On his evidence, he was just standing there engaged in chit chat. According to him, about 8 people turned up at different times. They were all just sitting or standing in the lounge room talking.
He did not remember anything said. According to Farnsworth, he was then told by Woods to go for a drive. He got in the car he described as a bubble car and went for a drive. He remembered that Mud, JD, HH, and Jace were also in the car. After a while, they stopped. He did not know where he was or why he was there. He got out of the car. He says that HH handed him a gun. Again, according to Farnsworth, he did not know why that was. He then followed the others towards and into a house. He did not know whose house it was.
Just as he got to the front door, he saw Mud and HH going into a room off the hallway. He heard a shot. He said he had not heard any shot before that time. They all ran out of the house and back to the car. The accused was back at the car. They got in the car and drove off. Apparently, no one said anything or at least he could not hear anything because of ringing in his ears because of the shot. They drove to a place and got out of the car. The car was burnt. He got into another car and went back to Woods’ house. He and the accused then went home after talking to Woods.
According to Farnsworth, he got in the car in the first place because Woods asked him to. He did not know why Woods asked him to go for a drive, he did not know where or why they were going, and he didn’t know why he was given a gun or why he was walking towards the house. Even though he heard a gunshot, he didn’t know if anyone had been shot but assumed it must have happened.
In cross-examination it was put to him that other people had said the accused arrived at Woods’ house that night later than others. He agreed that could be possible. I am not sure how that could fit with his evidence in chief that he drove to Woods’ house with the accused. He agreed with most things put to him in cross-examination about the accused being compliant, stupid, wanting to help people, and having mental health problems.
I am unable to accept much of what Farnsworth said. He was unable to explain why he just went for a drive because Woods told him to. He said he only went inside the house because he feared HH, but that does not explain why he was also carrying a gun.
I am unable to accept that he was just going for a drive during the middle of the night as instructed by someone he just knew, who had no authority over him, and that he had no idea why they stopped where they stopped or what was going to happen.
Other than his identification of the people who went in the Yaris, who went inside the house and the fact that the accused did not go inside the house, I do not generally accept his evidence.

Evidence of Amanda McCauley

McCauley knew Woods well. She also knew the deceased, as is evident from her Facebook messaging on the night he was killed. She pretended to be president of the GBs for a period during the escalation of the conflict with the Bandidos, seemingly to appease the deceased. Not that the deceased bought it.
McCauley commenced her evidence by explaining that she has suffered significant trauma whilst she has been in gaol which has impacted her memory greatly. It is not necessary that I comment further on the trauma, I am not suggesting she has not experienced trauma. Having said that, her memory has certainly become very poor because she seemed unable to recall much of substance, particularly when asked questions by the prosecution.
For example, she was at the Mitchell Highway meeting and understood that was being organised by Woods and BJ but was unable to say much at all about what happened there.
She acknowledged that she was at the McDonalds meeting with members of the Bandidos and agreed that she brought along the accused for protection but was unable to recall anything said at the meeting.
She said that she did not go to Woods’ house on the evening of 13 January 2020. It was put to her that she took a photograph of Woods holding his finger up with the GBs vest. She explained that he was merely pointing to the vests although she later accepted that he was giving the finger in the photo. She seemed unable to explain how it was that she was sending that same photo to the deceased during the night of 13 January 2020 by way of Facebook messenger.
She portrayed herself as someone who was only really involved in the GBs because of the charitable and social side of the GBs, explaining all the charitable work they had done. However, she also said that she was very scared of Woods and BJ. She accepted that she did not tell the truth when giving her statement to police in January 2020 and explained that was because Woods was sitting next to her squeezing her foot, trying to indicate what answers she must give. She was unable to explain how the squeezing of the foot could put words in her mouth. The officer in charge denied that the police interviewed her and Woods at the same time.
She said she did not become aware of the involvement of any of the GBs in the murder of the deceased until some months later. She was at home at the time and knew nothing of it.
Of course, she is currently in custody having been convicted of being an accessory after the fact. I remind myself that her evidence may be unreliable (s 165(1)(d) of the Evidence Act 1995 (NSW)).
Curiously, one of the facts she agreed to for the purpose of her sentencing was telling DD he needed to have himself admitted (i.e., feign some sort of mental illness) for the purpose of any proceedings against him.
McCauley’s evidence is said to be important insofar as she also refers to the accused having a gun in the car as they drove out to the deceased’s property. That comes from an interview with the police. A number of things might be said about that interview.
Firstly, the suggestion that there was a recording of an earlier conversation was not correct. Secondly, the effect of what McCauley said during this interview is not that the accused was holding a gun but that HH had a gun pointed at the accused’s chest and that the gun was cocked and that the accused thought every time they went over a bump it was going to go off. Thirdly, the accused told McCauley that he was having major chest pains and that he did not get out of the car.
I am unable to accept much of what McCauley said. She may have suffered significant trauma since the death of the deceased. She may be suffering from some memory deficits, but I am unable to accept her complete lack of memory about anything she might have observed or heard or said relevant to the prosecution of the accused. Her evidence about Woods squeezing her foot as a means of making sure she said the right thing during their joint police interview was absurd.
She was able to remember a lot about the accused when matters were put to her on his behalf during cross examination. She tended to agree with the cross-examiner’s characterisation of him, as had most of the witnesses. She described the accused as very kind to women and a protector of women, suggesting that is why she would have brought him along to the McDonalds meeting. She did agree that some months after the event the accused had told her that he had remained in the car. She described Woods as the puppeteer and everyone else as the puppets.
I am unable to accept that she was forced to do everything she did and said. I am unable to accept that her memory is as bad as she maintains.
She was not a reliable witness.

Evidence of Heather Maxwell

The wife of the accused, Heather Maxwell, gave evidence. It is not suggested that she had any involvement in the events which led to the death of the deceased. However, she had provided two statements to the police about events before and after and matters relevant to the personal circumstances of the accused.
Alas, in examination in chief she also seemed to have a great deal of difficulty in remembering things, in particular what she might have said to police at different times. She seemed not to remember being at various places. She was plainly part of the discussion between McCauley and DD, covertly recorded, when McCauley suggested to DD that he should in effect feign a mental illness as part of his defence to anything the police may pursue against him.
Mrs Maxwell is heard during that same conversation joining in with that idea and explaining how that might work. When the recording was played to her, she readily accepted that is what she said. Similarly, when reminded of other things she had said to the police with reference to her statements she readily agreed she had said those things.
Mrs Maxwell agreed that her nickname was “Vault”. She explained that meant she didn’t ask anything and didn’t hear anything. Indeed, she is recorded as saying that when she was discussing things with McCauley and DD.
Her evidence was a bit like that. She wasn’t able to say much and didn’t recall hearing much. I did not glean anything from Mrs Maxwell’s evidence which might assist in terms of making findings as to what the accused saw, did, heard or said, at any of the critical times leading up to the death of the deceased.
Having said that, Mrs Maxwell’s evidence was more significant in terms of both the state of the accused’s mental health and what has come to be described as his functional adaptability. Contrary to the approach taken on behalf of the accused to Mrs Maxwell’s evidence, Mrs Maxwell said she did not use the accused’s phone, she did not have the passcode to his phone and she did not see anyone else using the phone. She agreed he would use it for texting, Facebook messaging, apps and searching the internet. The only finding available from her evidence on this issue is that it was the accused texting, messaging and downloading apps.
The attempt to portray his level of intellectual disability as being so great he could not even use a phone or search the internet thus must be rejected.
She also gave evidence as to the state of his general mental and physical health which did seem to support the accused’s case that he suffered from significant and ongoing mental health issues throughout 2019 and 2020. Yet she also agreed that she would endeavour to ensure he took his medication and received his monthly injections for his schizophrenia.
She agreed that the pattern or level or symptoms of his mental health were stable. I took her to mean they were generally the same. Having said that, like a number of the witnesses, she tended to agree with the propositions put in cross-examination, including the proposition that his mental health was declining in late 2019, and that he relied on her to do most things.

Evidence of Sergeant Dusting

The Crown adduced evidenced from Sergeant Dusting, a ballistics expert. He examined the scene, as well as the subsequently located broken up shotgun. As he explained, he found one cartridge from a shotgun in the deceased’s room. He was able to locate all nine pellets which emanated from that cartridge, some of which had broken up and some of which had remained in the deceased’s body. Having regard to the position of the cartridge shell and the various pellets, he was able to conclude that the shotgun was likely inside the room adjacent to the door when it was fired. The particular gun would discharge the cartridge to the right. After firing, the nine pellets would disperse slightly depending on the distance between the gun and that which the pellets might hit. Plainly some of the pellets struck the deceased. It is an agreed fact that he was killed as a result of being shot in the head. He was hit on the left side of his head. In the end, there did not appear to be much dispute about where the gun was when it was fired and that it was only one gun that was fired.

The ballistics expert could hardly opine on who fired the shot, that must depend upon a resolution of conflicting versions. The dispute between the Crown and the accused as to who fired the shot appears mainly to relate to the credibility of the witnesses, that is, for example, whether I should accept the evidence of HH or not.
There are many other reasons why I might not accept the evidence of HH. At least in these proceedings, I am unable to determine who fired the shot and where that person was likely standing in relation to other persons who entered the premises. Other than impacting upon the general reliability of HH’s evidence, it does not matter. There is no evidence that the accused was even in the house. No one suggests he fired the gun or saw it being fired.

Evidence of Debbie-Jean Clarke

Debbie-Jean Clarke was also a member of the GBs. She and her partner, Jace Harding, worked as cleaners around the relevant time. She was generally aware of the escalating conflict with the Bandidos. She recalled that at some point in late 2019, she and Harding had been working as cleaners at the Art Gallery. She saw some men outside. When they went out, she recognised them as members of the Bandidos. They attacked Mr Harding, punching him in the head.
At the time, she had been living with her parents but decided to move away from her parents’ house and moved into Woods’ house because of her concern about the Bandidos.
She was present at the Mitchell Highway meeting, although she said she only went there because McCauley asked her to. She identified that the accused was there. She heard Woods and Hayes talking. She did not remember much of what was said but was aware they were saying there was an issue they needed to deal with and people needed to be hurt.
At first, she could not remember the names of anyone being spoken about but later recalled a number of names including that of the deceased. She did not recall the accused saying anything at the meeting. She recalled that the accused and Farnsworth were standing over to one side of the vehicle, and Hayes and Woods were doing all of the talking.
She agreed she attended the McDonalds meeting on 11 January 2020. She thought the accused had gone along just so he would be there with her and McCauley. She did not remember the accused getting involved in anything that happened on that day at McDonalds.
She remembered some members of the Bandidos threatening McCauley saying they weren’t afraid to hit a woman. They wanted to take the conflict elsewhere. They kept texting McCauley even after leaving McDonalds. She recalled that McCauley was fighting back (I assume she means figuratively).
On 13 January 2020, she was staying at Woods’ house. She recalled that during the evening there were guns on the floor that were being cleaned. When asked who was there at that time she mentioned a number of the men but not the accused. She said at one point the guns were wrapped up and put in the vehicle. She saw the guns being put in the car.
Again, she did not mention the accused in terms of the accused being there when this happened. She observed that some of the men got changed out of their usual clothing. She did not see the accused do that. Clarke made it plain on a number of occasions that she had difficulty remembering things.
She was permitted to refresh her memory from some of her earlier statements but even then could only say that she thought it was true because it was in her statement. She agreed that her first statement she gave to the police was a lie but she was truthful in subsequent statements.
Unlike some of the other witnesses, I gained a more favourable impression of Clarke. Her evidence appeared to be realistic in the sense she had difficulty with dates, times and places and who was present and when and precisely what was said, but she seemed to be doing her best to give truthful evidence.
Her evidence again confirms that the accused was at the Mitchell Highway meeting, the McDonalds meeting and Woods’ house at some point on 13 January. However, unlike some other witnesses, her evidence was that the accused was one of the last to attend. She seemed uncertain as to whether the accused was there when certain important events happened such as the cleaning of the guns and putting them in the car. She maintained that the guns were put in the boot.
She was cross-examined, again accepting that her memory was better at an earlier time. She also accepted that she was told after the event that the accused had stayed in the car and the other four men had gone inside. As I have said, I accept that Clarke was doing her best to tell the truth, albeit she had memory problems. It seems to me to be important that she was told contemporaneous to the shooting of the deceased that the accused had remained at the car.

The accused’s mental state

There was a significant volume of expert medical evidence. The parties relied upon the reports obtained for the fitness hearing, updated with additional oral evidence. The notes and records of the plaintiff’s medical treatment for an extensive period were admitted. Those records included reports of the Orange Base Hospital and the Bloomfield mental health facility. The Crown tendered the report of Dr O’Dea dated 6 June 2023.
Those reports were prepared for the purposes of the fitness hearing. Dr O’Dea was also asked to comment on some additional material and evidence at the trial. As Dr O’Dea opined at the time of the fitness hearing, he considered that the accused was suffering from a number of conditions including a broad based schizophrenia disorder and depression. He accepted the results of the psychological testing undertaken by Dr Lennings and accepted that the accused was a person who suffered from an intellectual disability. He accepted that the accused fell within the very low range of persons for intellectual disability.
He did not consider that his schizophrenia was as severe as Dr Lennings had suggested but accepted that the accused suffered from a range of mental health problems.
He was taken to a clinical record from Bloomfield of 9 January 2020, and in re-examination the subsequent consultation note of 21 May 2020. The report of 9 January 2020 tends to suggest that the accused had not been taking his medication, in particular his aripiprazole injection and that the voices in his head or auditory hallucinations were increasing. However, as confirmed in the later report of 21 May 2020, he had in fact received his regular injection on 3 January 2020, albeit the accused was obviously confused about this.
As Dr O’Dea explained, the taking of such regular injections tends to stabilise the symptoms of which a schizophrenic might suffer. The risk of not taking the medication is really that the person becomes less compliant and more erratic.
Whilst Ms Evers pointed out that the mere fact that he was prescribed medication did not mean he took it, I have no reason to doubt that he received the injection referred to in the Bloomfield notes. Nor would I assume that the accused was not taking his medication.
I would have expected Mrs Maxwell to give some evidence that he did not take his medication if that was the position.
The accused sought to adduce evidence from his medical experts, Dr Lennings and Dr Ellis, in a somewhat unorthodox way. Ms Evers maintained that she was not required to tender the doctors’ reports, but she was entitled to merely have the doctors confirm their opinions by way of a summary and that she could introduce a new topic with Dr Lennings, being the relationship between his heart attack and subsequent depression, by telling the Crown about it the night before and serving an article she had obtained about it.
I rejected her attempt to adduce expert evidence in this way. She then tendered the reports of both experts when they were called. However, the reports of Dr Lennings were so heavily redacted that there was little left of substance other than the introduction and concluding paragraphs. Much of the questioning merely required Dr Lennings to confirm what he said in his reports.
Some time was spent taking Dr Lennings through things such as adaptive functioning, the accused’s history of schizophrenia and whether the evidence supported the conclusions he had come to. For some reason, he had been provided with only some of the medical evidence and a summary of the medical evidence prepared on behalf of the accused for the purposes of further opinion. Again, much was made of suggestions that the accused was compliant, tended to follow others, do what he was told and had a real difficulty retaining things or understanding things.
Dr Lennings agreed that the accused was depressed and that he suffered from schizophrenia. He agreed that sometimes patients did not take their medication and the fact that they were prescribed medication did not mean they were taking it. However, as the Crown suggested in cross-examination, there is no evidence supporting the idea that he deliberately did not take his medication.
I am uncertain about the emphasis on adaptive functioning. Whether the accused needs help at home or can generally function in society undertaking complex tasks seems irrelevant. Dr Ellis also gave evidence, although both his evidence in chief and cross-examination was somewhat abbreviated having regard to the lengthy evidence of Dr Lennings.
All of the expert medical reports were obtained for the purposes of the fitness hearing. None of them were asked to provide up to date reports on issues relevant to these proceedings. Having said that, their evidence was generally consistent, with the differences being in degree rather than overall opinion. For example, Dr O’Dea thought the accused was suffering from a form of schizophrenic spectrum disorder which is a lesser form of illness than the other form of illness.
Further, in my view, the significance of the Bloomfield hospital records is that despite receiving his regular injections and other treatment, he continued to hear voices. None of the medical experts who gave evidence cast any doubt on the accused’s statements that he heard voices. None were able to say precisely when or how these hallucinations might manifest themselves in terms of the accused’s behaviour.
Dr O’Dea explained that a person with schizophrenia hearing such voices might demonstrate in some way that he was having a hallucination. On the other hand, other persons may not. They may remain self-absorbed such that a lay person observing a schizophrenic in this state would simply not know what the person was going through.
There is no doubt from the medical records that the accused had a long history of mental health problems and had been diagnosed of suffering from schizophrenia many years ago. It is not clear when he was first diagnosed with an intellectual disability, but it does seem to have been at least by 2018.
In the end, at the time of the events the subject of these proceedings, the accused was a person suffering from significant health problems. His heart problems had caused him great distress. He was depressed and suicidal from time to time. There is sufficient report of him being suicidal in the medical reports to understand that being suicidal was not necessarily an isolated event for him.
He suffered from schizophrenia, the symptoms of which include periods of psychosis. He heard voices from time to time although the frequency of hearing voices is uncertain.
Only days before the death of the deceased he reported hearing voices even though he had had his injection only a week earlier.
Both parties raised the issue of the accused taking ice and using marijuana for some period prior to and during January 2020. The accused objected to the subject being raised with Dr Lennings but then asked further questions about it.
I was puzzled by the exploration of the issue of drug taking and mental health. The accused is not running a mental health defence. As Dr Lennings explained, the taking of ice and particularly marijuana (if it was a particular type of marijuana) may have had a real effect on the accused’s schizophrenic condition.
What is important are the contemporaneous records which confirm that the accused had a serious mental health condition in the period leading up to the events the subject of these proceedings and, indeed, even days before when he had received his injection, he was still hearing voices. According to the experts, persons who suffer from schizophrenia may react differently to their auditory hallucinations. They could become completely self-absorbed by them or they could in some way communicate they were having these hallucinations.
I do not accept the accused’s submissions that his level of intellectual disability was such that he might not have been able to send texts or search the internet.
The Crown called Detective Senior Constable Ford, a person with skill and expertise in analysing mobile phones. His examination of the accused’s mobile phone revealed that:

During the relevant period the sim card had been used in three separate phones;

Someone had deleted a large number of text messages and call records from the phone in 2020;

There had been over 900 text messages and over 200 Facebook messages activated through the phone;

Someone had searched the play store and downloaded the app for police scanners and detecting bugs, that is someone who had been using the phone for reasons best known to themselves wanted to hear what the police were saying and find out if their phone had been bugged.

The phone belonged to the accused. I do not accept that anyone other than the accused would have been sending these messages. I do not accept what appears to be the assertion on behalf of the accused, using the language put to witnesses, that the accused is so stupid, so compliant and has such a level of intellectual disability that he wouldn’t know how to send text messages or search the internet or wouldn’t understand the messages he was receiving in response.
I accept that the accused has an intellectual disability which would make functioning in society on a day to day basis difficult. The type of work he could perform would be limited, such that he seems to have only worked as a labourer or a paper boy. He could not understand complex concepts or language.
However, he could plainly function in society in the sense that he understood plain concepts and language. He could read and write to a certain extent. If he was given a simple direction, he might follow it but he would also understand it.
I do not accept that he would not understand ordinary English language.
The language spoken at all the events relevant to these proceedings was hardly complex. I do not accept that the accused’s level of intellectual disability was such that if he was spoken to directly or if he heard ordinary words being spoken such as threats, demands, requests and stories, he would not have understood them.
The state of the accused’s mental health, cognition, ability to understand and other such matters is relevant at a factual level but the accused did not run a mental health defence. The state of the accused’s mental health and level of cognition is relevant to the question of whether the Crown has discharged its onus of proof in establishing that the accused entered into an agreement with the co-offenders at some point prior to their arrival at the deceased’s house in the middle of the night on 13/14 January 2020. I will come back to this.

The Crown submissions

The Crown submits that the existence of the JCE or extended JCE is proved inferentially by the accused’s presence at Woods’ house when conversations and plans were made. The Crown says the accused wore and put on black clothing as did others in the group which is indicative of his participation in the enterprise. He then attended in the area of the house of the deceased as did others with guns.
The Crown relies on alleged statements made by the accused to Harding, as supported by McCauley, that there was a gun pointing towards him in the car on the way to the house. The Crown submits that whether I accept that he left the car or stayed in the car, he attended at the scene as backup, ready to act if required.
The Crown submits that even if I am not satisfied that there was an intention to kill, having regard to the evidence of Harding, I would be satisfied that there was an intention to at least cause grievous bodily harm. In the alternative, the Crown submits that the same evidence can be relied upon to prove that the JCE was to assault, thereby giving rise to an extended JCE.
Although the Crown referred to possible defences which might be raised by the defence such as withdrawal or duress, the accused did not make any submission in support of such defences and there is no evidence to support them in any event.
In the end, the Crown submits that:

There is sufficient evidence to establish that the accused was aware of and understood the context of the conflict between the Bandidos and the GBs.

The accused reached an understanding or arrangement amounting to an agreement with one or more other persons that they would commit a crime, having regard to his presence at Woods’ house and what was said at the house.

The accused participated by providing intentional assistance or encouragement. This included changing into dark clothing, travelling in the Toyota Yaris to the deceased’s house, travelling with a gun pointed at his chest and taking a hold of a firearm and walking towards the house of the deceased.

The Crown also relies on the deletion of the call logs on the phone and the attempted download of a police surveillance scanner as evidence of consciousness of guilt.

The accused’s position

The essential submission put on behalf of the accused is that the Crown has not discharged its onus of proof both having regard to the inconsistent and unreliable evidence adduced by the Crown as well as the evidence relating to the accused’s mental health at the time of the relevant events.
The accused submits that I would not accept the evidence of a number of witnesses, in particular HH. Further, I would not accept the evidence of Harding and McCauley as to statements allegedly made by the accused about the gun pointing towards him as they travelled in the Yaris towards to the deceased’s property. The accused submits that such statements are ludicrous and should be rejected.
The accused submits that the Crown has not established what the accused heard at any time before his presence at Woods’ house on 13 January 2020, whether that be at the Mitchell Highway meeting or the McDonalds meeting. Further, the accused submits that the Crown has not established that the accused heard any words being spoken about a plan to kill or assault the deceased at Woods’ house on 13 January 2020.
The accused points to the inconsistencies in the various accounts as to when the accused came to the house and whether anything was said about going to the deceased’s house with the guns after he arrived. The accused then points to the extensive evidence of what is said to be the deteriorating state of his mental health between august 2019 and early 2020, emphasising that he became increasingly depressed and that he was seeking help from the mental health facility at Bloomfield, as well as his general practitioner.
The accused points to the evidence as to his intellectual disability and difficulties in understanding ideas and concepts, suggesting that he was just a follower. The accused suggests that he was likely to be delusional referring to the auditory hallucinations from which he was suffering only days before 13 January 2020.
The essential point raised by the accused is that a number of the witnesses were so lacking in credibility or reliability that I would not be able to accept their evidence such that I am left with little other than the fact that the accused was present at places, such as the Mitchell Highway meeting, McDonalds meeting, Woods’ house and the deceased’s property. The accused submits that I could not draw any inference that he was at the deceased’s property in accordance with an agreement or common understanding to commit a crime.

Determination

The Crown bears the onus of proof. It is necessary for the Crown to establish beyond a reasonable doubt that the accused was a participant pursuant to a JCE or an extended JCE. There is no doubt that the deceased was killed by one of the participants in the JCE. A number of people have already been convicted on that basis.
Whilst there was some evidence as to who might have been the shooter, it is not necessary that I determine that issue. The evidence would not permit a finding about that in any event. It was not the accused.
If I consider that there is a reasonable possibility that the accused did not enter into and participate in such a JCE or extended JCE, then I must find that he did not commit the offence.
I will deal firstly with the consciousness of guilt submissions made by the Crown.
The Crown submits that the conduct of the accused after the event in deleting his call log and then attempting to download material about police scanners or surveillance is evidence of a consciousness of guilt.
I accept that in some circumstances such conduct may be evidence of a consciousness of guilt (see, for example, Pollard v R (2011) 31 VR 416). Hiding a phone or deleting messages which provide the context of the offending conduct may suggest a consciousness of guilt.
However, before I could consider the conduct of the accused as evidence of a consciousness of guilt, I must be satisfied that the accused did these things either because he feared that the material on his phone would implicate him in the commission of the offence or that he sought to find out about the police investigations into the murder of the deceased because of a concern about his own involvement.
In my view, there is a difficulty in relying upon the fact of deletion of material from the phone in this matter because there is no evidence as to what was on the phone and there is no evidence that the phone was used before or after the shooting as a means of communicating with others about the shooting.
It may seem suspicious that a person who was ultimately charged with the crime might delete entries on the phone but mere suspicion is not sufficient.
Having regard to the evidence of Mrs Maxwell that the phone was password protected and that she never saw anyone else using the phone, the only available finding is that he used his phone, including sending a large number of ordinary texts and Facebook messages.
Deleting a large number of texts and messages might, through the prism of hindsight and with the knowledge that the accused has been charged, seem like evidence of consciousness of guilt, but that is not necessarily so because that is not necessarily the only inference that arises from the deletion of material from a phone or trying to investigate police scanners.
There is no evidence in this matter that any of the planning for the killing of the deceased involved text messaging or Facebook messaging. There is no evidence that anyone sent a message to the accused informing him what he needed to do or what was about to happen. The GBs group chat messages were in evidence. The offending conduct did not have as an integral component the use of a phone. Despite the extensive police investigation, there is no evidence of any or all the other people who were involved both before and after in the murder of the deceased sending text messages to each other, that is, as individuals talking about what had to happen or what had happened.
Of course, I have regard to the GBs chat messages but I am unable to be satisfied that the conduct complained of is evidence of a consciousness of guilt. There may be many reasons why so much was deleted from the phone. Further, there is evidence that the accused had always had an interest in matters such as police scanners.
The other reason I do not accept such conduct as evidence of consciousness of guilt is that the accused presents as a simple person. The evidence points to him having an intellectual disability and being entirely compliant and willing to go along with others. That does not mean that he would not be capable of entering into an agreement but it does rather suggest that he would be the sort of person to do what he is told, such as delete phone messages.
One inference is that he deleted all his messages because he wanted to hide what was on them because the messages might implicate him in the crime. Another inference is that someone told him to delete the messages or that someone told him to find out whether his house was bugged. It is at least apparent from the recorded conversation in which HH was involved that some members of the group had their suspicions about houses being bugged.
In all the circumstances, I do not accept that the conduct complained of by the Crown should be treated as consciousness of guilt.
Having said that, there are a number of matters of which I am satisfied which are essential to the Crown case including that the accused:

Was part of the GBs Facebook messaging group.

Attended the Mitchell Highway meeting.

Attended at the McDonalds meeting with McCauley and Clarke.

Attended at Woods’ house on the night of 13 January 2020.

Further, although the accused was depressed and suicidal in the months leading up to January 2020, he must have, and I accept did, known that there was a conflict brewing and escalating between the GBs and the Bandidos. This is evident from the GBs group chat messages and must have been evident from a number of different events and meetings that he attended or was aware of.
His mental health conditions do not render him incapable of understanding ordinary English or understanding simple directions, unless he was in the grip of an auditory hallucination.
Whilst there is no evidence that the accused actually said anything at any particular event or meeting, he was there. The idea that he never heard anything and thus would not have known anything at all about the conflict with the Bandidos seems absurd.
He must have seen and heard from the McDonalds meeting that there was a significant conflict between at least McCauley and other GBs and members of the Bandidos.
Accordingly, I am satisfied that the accused had some knowledge of this escalating conflict before 13 January 2020.
However, I do not accept that his refusal to do what John Lord suggested, that is hand in his patches, was indicative of his inclination to become directly involved in the conflict with the Bandidos.
In this regard, I again accept the characterisation of him as a simple person who joined the GBs for company and a sense of belonging. I doubt that he ever really understood where the conflict was heading or the significance of stepping away from the GBs whilst this was all going on.
Again, whilst McCauley and Mrs Maxwell suggested to DD that he ought to be feigning a mental illness (there is no evidence that DD actually did this), the accused’s mental illness is not feigned. That is clear from all of the treatment he received prior to 13 January 2020.
Further, precisely what the accused knew and heard before 13 January has not been established because there is no evidence of any person ever speaking directly to the accused, engaging in a one-on-one conversation with the accused or the accused saying anything at all.
Bearing in mind his attendance at the two meetings of importance, this is puzzling. That is not fatal to the Crown case but it means that the guilt of the accused is very much dependant on inferences drawn from his conduct and the conduct of others as well as statements said to have been made in his presence.
In my view, whist the earlier meetings provide the context, the focus must be on what happened at Woods’ house on 13 January 2020 and what happened the rest of that evening, including the shooting of the deceased and the events thereafter. This is because there is no evidence that the accused went to Woods’ house with a plan in mind or even with an understanding that something might be happening with the Bandidos that night.
It is necessary to consider with some care and caution the evidence of the other persons involved and called as witnesses and consider what parts, if any, of those witnesses’ evidence I might accept.
The Crown relies on all of the evidence, including the documentary evidence, but really bases its case on evidence that the accused was at each of the particularly relevant events and must have heard the things which were being said (which evidenced the planning to kill or assault the deceased) and that he went to the deceased’s property with that shared or common purpose.
I have already indicated generally the extent to which I would accept the evidence of some of the witnesses. As will be apparent, I am mindful that the evidence of a number of the witnesses might be unreliable in light of their own participation in the crime. Further, there are inconsistencies between some of the Crown witnesses. I have little doubt that, even at this point and even though some sought and obtained a certificate in accordance with s 128 of the Evidence Act, some of the witnesses remained mindful of their own positions and were careful not to say things that might impact on them.
It seems clear that when first spoken to by the police a number of witnesses simply made up a story or told lies. Yet the Crown urges that their subsequent statements and evidence in these proceedings be accepted as truthful. At least in respect of a number of witnesses, I am unable to accept that submission.
I am unable to accept that in particular HH, Farnsworth, McCauley and, at least in part, Harding were credible witnesses.
As I have said, not only did HH not ever identify the accused actually being at the deceased’s property until after he had been sentenced in 2023, but the description of the person he now says was the accused was plainly wrong. Further, he did not mention Farnsworth as being present at all. He admitted that that he told lies to save his skin and accepted that parts of what he said was either a lie or just a guess. His walkthrough was an exercise in minimising his own role.
Even if I accept HH’s version that only three men went into the house and on the way back he came across a big man struggling and out of breath (who he now says was the accused), that does not account for Farnsworth. He seems to have forgotten about him altogether. That fact and his own wrong identification of the person known as Azza leaves open the possibility that he could be mistaking the accused for Farnsworth.
I am also unable to accept Farnsworth’s evidence. A summary of his evidence would be that he heard nothing, did not know where he was going, did not know why he was there and did not know what happened inside the property.
As for McCauley, it is plain from the Facebook group chat messages and her overall role within the GBs that she was a significant person within the GBs. I am not suggesting that she planned or participated in the crime but I do not accept her portrayal of herself as a person wanting to do charity work and really not knowing much else.
Her recorded conversation with DD and Mrs Maxwell, as well as her ringing around checking on who might have been arrested is evidence of a deeper role in what was happening with the GBs at the time proximate to the death of the deceased.
There may be events in her life which have caused her significant trauma but her suggestions of significant memory loss are difficult to accept.
Having said that, her interview with the police in which she spoke of the accused having a gun pointed at him was given at a time when she accepted that her memory was better. Her evidence about the gun as they drove out to the deceased’s property is different from that of Harding. She told the police the accused had said that he had a gun pointing at him. Harding suggests that the accused was holding the gun. Other evidence suggests that the guns were loaded into the boot before leaving Woods’ house.
Harding seemed intent on minimising his involvement, emphasising that he was just there for back up and really only there to put the wind up someone. He said he even tried to remind the others that that is why he was there as they all approached the house with their guns.
The problem with the Crown case is that it is necessary to cherry pick at least some of the evidence of various witnesses whose evidence I do not generally accept as part of the Crown case.
Again, HH is a good example of this. Despite what I would describe as his general lacking in credibility and the transparency of his own attempts to minimise his own role in the events, the Crown says I should accept his seemingly recent realisation that it was the accused who he had come across outside of the property out of breath and who he helped back to the car. I am unable to accept that.
Indeed, I am not prepared to accept that the events happened as he described them.
Similarly, with respect to McCauley, the Crown says that I should accept her evidence that the accused recounted after the event that, as they were driving towards the deceased’s property, he had a gun pointed towards his chest. The Crown agrees that I would not generally accept her evidence but says I should accept this because it is supported by Harding. In fact, Harding’s evidence was different.
I have a doubt as to whether there was a gun pointing at the accused for a number of reasons including:

Firstly, all of the evidence points towards the guns being placed in the boot of the Yaris before they left Woods’ house;

Secondly, at least generally, the evidence points to the guns being taken out of the boot when they stopped near the deceased’s property;

Thirdly, the idea that there was a loaded gun pointed at his chest as he drove along bumpy roads seems unlikely.

Even if there was a gun pointed at him, it does not assist the Crown case as the accused was not holding the gun. Unless the accused did something when they arrived at the property, the fact that someone else had a gun does not evidence an agreement by the accused to participate in the JCE.
I will now consider the sequence of events on 13 January.
I have already indicated that I accept that the accused must have known about the escalating conflict between the GBs and the Bandidos before 13 January 2020. I am uncertain as to precisely what he heard at the Mitchell Highway meeting, although it seems likely that he heard things being said about the need to deal with the Bandidos to bring an end to the conflict.
He must have heard words being spoken at the McDonalds meeting. Yet, there is no evidence that anything said at the McDonalds meeting would have put him on notice of any plan to kill the deceased. He seems to have just stood around at the McDonalds meeting, not doing anything.
Similarly, there is no evidence of any other communications through the Facebook messages or otherwise that would have put the accused on notice as of the afternoon on 13 January 2020 that there was a plan afoot to kill or assault the deceased.
There is similarly no evidence of anything being said by anyone, whether that be Farnsworth or the accused or any other member of the GBs, that the accused should be going to Woods’ house on the night of 13 January 2020 so as to participate in the killing of the deceased or any other crime. That is, there is no evidence to support any proposition that the accused and Farnsworth went to Woods’ house that night with the intention of becoming involved in a crime.
There was inconsistent evidence as to when they arrived at Woods’ house and what might have happened before they arrived. However, at least DD and Clarke, when asked to volunteer who was there when Woods and Hayes were saying certain things and whilst the guns were being cleaned, did not include the accused in the list of persons being present.
I accept that the accused and Farnsworth arrived after the others. I accept that at some time during the evening the accused was in the lounge room but I am not satisfied he was in the loungeroom when the guns were being cleaned or when Woods and Hayes were making their initial statements about their plans.
As I have already emphasised, there is no evidence that any particular person spoke directly to the accused or that the accused responded in anyway to anything that was said by Woods or Hayes to the group generally. There is no evidence of one word spoken by the accused at any time, other than his post event suggestion of having a gun pointed at him, that might indicate his understanding of or willingness to participate in any acts of violence to be perpetrated on the deceased.
I am not satisfied that the accused saw the guns being cleaned or was aware of any direction whilst the guns were being cleaned as to what was going to happen with the guns.
Further, there is inconsistent evidence as to whether anything was said about going to the house of the deceased and leaving no witnesses in the presence of the accused. Certainly, DD said that Woods spoke about this whilst the accused was in the lounge room. However, although Clarke nominated a number of people being present during conversations from when the guns were cleaned, she did not mention the accused.
I am really just left with the evidence of DD to the effect that he was sure the accused was in the lounge room during the final admonition from Woods about not leaving any witnesses.
Further, I do not accept that the accused “got changed” or that he was given or was wearing a balaclava. The evidence is quite specific that some men got changed and there were some balaclavas but at its highest for the Crown is the suggestion that the accused put on a dark jumper. He did not change his clothes.
Of course, when he got into the Yaris he must have known they were going somewhere. He may have known they were going to the deceased’s house.
On arrival at the deceased’s property, the accused did not go into the house. As I do not accept the evidence of HH, then there is no evidence as to the movements of the accused except that he did not go into the house. Harding’s statement that he started to follow them but could not keep up is inconsistent with the evidence of Clarke as to what she was told contemporaneously by some of the men involved with the events.
I accept that the accused stayed in and around the car. He was not in the position of a getaway driver. He did not drive the car there or drive the car after the deceased was shot but he was in the car. He continued with the others to where the car was destroyed but again he did not do anything there. His presence there says nothing about his understanding before the deceased was killed.
Having regard to all of the findings I have made and my assessment of the various witnesses I am satisfied that the position of the accused on the night of 13/14 January 2020 was quite different from that of others who have already been convicted of the killing of the deceased. I say this because:

The accused had a long history of schizophrenia, significant depression and suicidal ideation. This is not a feigned illness. It is evident that his schizophrenia continued to haunt him and lead to auditory hallucinations despite him taking his medication and receiving his injections. He was also a person of limited intellect having been diagnosed as suffering from an intellectual disability.

These matters do not of themselves mean that he could not have committed the crime for which he has been charged but add important context to the evidence I am assessing and mean that I must be cautious in drawing inferences from conduct and what was said by other people.

In this regard, it is a remarkable fact that, other than a statement said to have been made by the accused about a gun being pointed in his direction as he sat in the front seat of the Yaris, there is no evidence of the accused ever saying anything or responding to anything he might have heard in any way which might lead to the inference that he agreed to be part of that which unfolded leading to the death of the deceased.

There is no evidence that he attended Woods’ house on 13 January 2020 with knowledge a plan afoot or that he would be participating in a crime or that a crime would be committed that night.

True it is that he went in the car to the deceased’s house but there were five people in the car. He was the only one who did not enter the house. There is no acceptable evidence that he ever took a hold of a gun. His role was not to drive the car there or back.

No one gave evidence of things which might have been said or done on the way out there which might have implicated him in the commission of the crime.

The absence of anything said by the accused that night is a bit like the absence of evidence of anything said by the accused at the McDonalds meeting and Mitchell Highway meeting. He was just there.

Because I have rejected many of the statements made by persons I considered to be unreliable witnesses, integral components of the Crown case have not been established.

Further, in my view it is quite significant that although the accused was receiving his regular injections he was still hearing voices and was complaining of this prior to 13 January 2020, this is a regular symptom of schizophrenia. Those symptoms may come and go. The person may become distracted or self-absorbed or off in their own world during a period of auditory hallucinations.
I must have regard to that possibility in assessing whether the accused entered into a JCE or extended JCE and went up to the deceased’s property with a shared purpose of committing a crime against him.
In my view, the absence of anything said or done by the accused other than being there at various times gives rise to at least a reasonable possibility that the accused was off in his own world at some point on 13 January 2020. I accept that there is no evidence that he actually was but the accused does not have to prove a negative. There is ample medical and lay evidence to support that he could have been. His condition was stable but what that means in terms of his day-to-day existence is uncertain. I am not referring to his functional adaptability which gained some prominence during the hearing but rather the impact of his schizophrenia on drawing what might otherwise be ordinary inferences. For example, if he was in a room when things were said I might ordinarily infer that he would have heard and understood them or I might infer that, if he got into a car, he must have known where he was going and why he was going there. These inferences are less readily available when considering the position of a person suffering from schizophrenia and complaining of the symptoms of the illness around the time the events occurred.
The accused also submits that he suffers from a hearing loss which might have affected what he actually heard. That is possible but his hearing loss is not that significant so as to suggest that he was not capable of hearing words spoken in the usual way.
Consistent with the fair and proper way the Crown conducted this case, the Crown acknowledges that mere presence at the scene of the crime and knowledge of the crime is not sufficient for criminal responsibility. Even being at the scene does not of itself amount to encouragement. Being a passive spectator is not sufficient to establish involvement in a crime. There must be some intentional encouragement.
In my view, the Crown has not established that there was.
Whilst the accused may have made a choice to get in and remain in the car, his presence does not of itself amount to encouragement. As I have not accepted that he was there with a gun, I am unable to accept the Crown submission that his presence there was an act of intentional encouragement.
In all these circumstances, the Crown has not discharged its onus. I am left with a doubt as to whether the accused agreed to participate in any sort of a crime, whether that be the killing, grievous bodily harm, or assault of the deceased.
I am left with a doubt as to whether his presence in the car at the property is indicative of ongoing participation in a JCE or extended JCE. I am not satisfied that the inference from words and conduct which the Crown urges upon me is the only available inference.
In the circumstances, I am not satisfied the accused committed the crime with which he has been charged. He is entitled to a verdict of not guilty. The order I thus make is:

The accused is not guilty of the murder of Shane De Britt.

There is a related offence I am required to deal with which is on the certificate filed pursuant to s 166(1)(b) of the Criminal Procedure Act 1986 (NSW) of participating in a criminal group and contributing to criminal activity contrary to s 93T(1) of the Crimes Act 1900 (NSW). At the conclusion of the delivery of my judgment the Crown indicated that I should enter a verdict of not guilty to this charge. Thus the order I make is:

The accused is not guilty of participating in a criminal group and contributing to criminal activity.

Decision last updated: 09 December 2024

Medium Neutral Citation:	R v Maxwell [2024] NSWSC 1576
Hearing dates:	4, 5, 6, 7, 8, 11, 12, 13, 14, 18, 19, 20, 21, 25, 26, 27, 28 November 2024 and 2 December 2024
Date of orders:	04 December 2024
Decision date:	04 December 2024
Jurisdiction:	Common Law
Before:	Cavanagh J
Decision:	(1) The accused is not guilty of the murder of Shane De Britt. (2) The accused is not guilty of participating in a criminal group and contributing to criminal activity.
Catchwords:	CRIMINAL LAW – special hearing – murder – Crown case based on joint criminal enterprise or extended joint criminal enterprise – no dispute that deceased shot but not by accused – where accused suffers from schizophrenia, intellectual disability and a hearing impairment – dispute at to whether the accused was present at the time plans to kill the deceased were discussed and his ability to comprehend such statements – dispute as to whether the accused ever left the car which he travelled to the deceased’s property in – multiple witnesses criminally concerned in the events and already convicted
Legislation Cited:	Crimes Act 1900 (NSW), ss 18, 93T Criminal Procedure Act 1986 (NSW), s 166 Evidence Act 1995 (NSW), ss 128, 165, 191 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 36, 54, 56, 58, 59
Cases Cited:	Gillard v The Queen (2003) 219 CLR 1 Pollard v R (2011) 31 VR 416 Robertson v R [2024] NSWCCA 99
Category:	Principal judgment
Parties:	Rex (Crown) James Maxwell (Defendant)
Representation:	Counsel: M Swift (Crown) T Evers (Defendant) Solicitors: Office of the Director of Public Prosecutions (Crown) Takchi & Associates (Defendant)
File Number(s):	2020/00278213
Publication restriction:	Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) there is to be no publication of any information tending to reveal the identity of the witnesses known as DD and HH