R v Mitchell (No 3)

Case [2025] SASC 118

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal)

R v MITCHELL & ORS (No 3)

Criminal Trial by Judge Alone

[2025] SASC 118

Reasons for the Verdict of the Honourable Justice McIntyre  

23 July 2025

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - CONSTRUCTIVE MURDER

CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - COMMON PURPOSE OR JOINT CRIMINAL ENTERPRISE - SCOPE OF AGREEMENT

The defendants are jointly charged with one count of Murder. The offence is alleged to have occurred on 8 or 9 October 2018 while the defendants committed a robbery at a cannabis grow house. The deceased died due to one or more severe blows to the head, delivered by one or more of the defendants with a weapon.  The identity of the person who inflicted the blow or blows is not known.

On the prosecution case the four defendants, and JPH who was tried separately, were part of a joint criminal enterprise to commit aggravated robbery. The prosecution contend that each defendant is liable by way of extended joint criminal enterprise; that is, each defendant participated in the agreement to commit robbery despite foreseeing the possibility that a co-offender might, in the course of committing that offence, intentionally occasion death or grievous bodily harm. In the alternative the prosecution case is that, as part of the agreement to commit the robbery, each of the defendants agreed to the possible commission of an intentional act of violence of the same general nature as that inflicted upon the deceased.

Verdict:

1.      Each of the defendants are guilty of Murder.

Criminal Law Consolidation Act 1935 (SA) ss 11, 12A.; Criminal Law Consolidation (Felonies and Misdemeanours) Amendment Act (SA); Telecommunications (Interception and Access) Act 1979 (Cth) s 46; Surveillance Devices Act 2016 (SA); Summary Offences Act 1953 (SA), referred to.

Mitchell & Ors v The King (2023) 276 CLR 299, applied.

R v Mitchell & Ors [2024] SASC 52; R v Willoughby (No 2) [2017] SASC 191; Miller v The Queen (2016) 259 CLR 380; Wilson v The Queen (1992) 174 CLR 313; Burns v The Queen (2012) 246 CLR 334; R v Suppiah [2018] SASCFC 11; R v Fragomeli [2008] SASC 96; The Queen v Hendrie (1985) 37 SASR 581; R v Mitchell & Ors (Supreme Court of South Australia, McIntyre J, 2 December 2024) ; Smith v The Queen (2001) 206 CLR 650; Honeysett v The Queen (2014) 253 CLR 122.; R v Mitchell & Ors (No 2) [2024] SASC 68; Shepherd v The Queen (1990) 170 CLR 573; Fitzgerald v The Queen (2014) 311 ALR 158, considered.

R v MITCHELL & ORS (No 3)
[2025] SASC 118

Criminal:  Trial by Judge Alone

McIntyre J:

Executive summary

Brief outline of the prosecution case

Procedural background

Relevant law

Murder

Robbery

Extended joint criminal enterprise

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AGLC
R v Mitchell (No 3) [2025] SASC 118
Case
[2025] SASC 118
Decision Date

CaseChat Overview and Summary

The case of R v Mitchell (No 3) involves a retrial of four defendants charged with the murder of Mr Gjabri during an aggravated robbery at his residence. The defendants are accused of participating in a joint criminal enterprise aimed at stealing cannabis plants from Mr Gjabri’s house. The prosecution contends that the defendants are liable for Mr Gjabri’s death under either the doctrine of extended joint criminal enterprise or constructive murder under s 12A of the Criminal Law Consolidation Act. The central legal issues revolve around whether the defendants were part of a joint criminal enterprise to commit robbery and whether their actions during the robbery led to Mr Gjabri’s death, thereby making them guilty of murder.

The court examined the evidence presented, including witness testimonies, circumstantial evidence, and the context of the crime. The court found that there was a plan among the defendants and JPH to steal Mr Gjabri’s cannabis, with sufficient evidence to establish their involvement. The court also considered the defendants' intentions regarding the use of force or threat during the robbery. The circumstantial evidence, such as phone records, text messages, and physical evidence, supported the conclusion that at least one of the defendants intended to use force.

In its reasoning, the court applied principles of circumstantial evidence and the onus of proof beyond reasonable doubt. The court emphasised the need for guilt to be the only rational inference from the established facts, excluding any reasonable explanation consistent with innocence. The court found that the defendants’ actions and the surrounding circumstances were consistent with their participation in a joint criminal enterprise and the use of force during the robbery, leading to Mr Gjabri’s death. The court concluded that the defendants were guilty of murder under the doctrine of extended joint criminal enterprise.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The prosecution case is that pursuant to an agreement, five men, the four defendants and JPH late on 8 October 2018 or in the early morning of 9 October 2018 broke into a residential house at 17 Carousel Street, Para Vista. Whilst there, it is said that they robbed Mr Gjabri of cannabis plants that were being grown hydroponically in that house. The prosecution contends that, during the course of the robbery, Mr Gjabri was assaulted and subsequently died of his injuries. The prosecution cannot say which of the five men inflicted the fatal injuries. The prosecution case is that between them, the defendants are legally responsible for one another’s actions in breaking into Mr Gjabri’s house, robbing him of his cannabis plants and killing him as part of the robbery. Procedural background This is a retrial. The four defendants were previously convicted of murder following a trial in the Supreme Court before a judge and jury. Their convictions were overturned on appeal to the High Court on 8 March 2023.[1] I will apply the law as it was set out in the High Court decision. I will, however, disregard the prior trial and any comments made concerning the facts of this matter in the appeal judgments. I will determine this case solely on the basis of the evidence led before me in this matter.[1] Mitchell & Others v The King (2023) 276 CLR 299 (‘Mitchell’). The defendants elected for trial by judge alone. I granted their applications on 17 April 2024.[2]Relevant law[2] R v Mitchell & Ors [2024] SASC 52.Murder A person commits murder if he causes the death of another person deliberately and unlawfully whilst at the same time intending to cause death or grievous bodily harm (‘GBH’). There are four elements to the charge of murder which must be established beyond reasonable doubt.[3] These are:1.The defendant’s act or acts caused the victim’s death;2.The defendant’s act or acts were voluntary and deliberate; 3.The defendant had the specific intention required for murder. That is, the act was, or the acts were, done with the intention to kill or cause GBH to the victim. GBH means “really serious harm”. The intention must exist at the time the act or acts which cause the death of the deceased took place; and 4.The killing was unlawful. Lawful excuses such as self-defence or defence of another must be excluded. [3] R v Willoughby (No 2) [2017] SASC 191. In this case, the prosecution cannot say which of the five men caused Mr Gjabri’s death. The prosecution contends that each defendant was part of a joint enterprise to commit the offence of aggravated robbery and that the assault of Mr Gjabri during the course of that robbery occurred in circumstances which makes all of the defendants guilty of murder by one of two alternative legal pathways. The first is extended joint criminal enterprise and the second is constructive murder under s 12A of the CLCA. In the alternative, the prosecution contends that the defendants are guilty of the offence of manslaughter as part of an extended joint criminal enterprise.Robbery

Evidence

Evidence Before The Court

Special arrangements were made for the witnesses Bridie McCormack (‘Ms McCormack’), Shania Carson (‘Ms Carson’), Stephanie Hunter (‘Ms Hunter’), Dritan Boba (‘Mr Boba’), Kobi Passmore (‘Mr Passmore’), Codey Folwell-Passmore (‘Codey’), Ms D and Mr W. I remind myself that I should treat this evidence the same as any other kind of evidence and that I must not draw any inferences adverse to the defendants because of the way in which this evidence was given. Discreditable conduct evidence During the trial, evidence was given that suggested that Carver and Tenhoopen may have sold or supplied drugs – namely cannabis and methamphetamine – in Murray Bridge from time to time. There is also evidence that all defendants, apart from Rigney, were members of a drug taking community which included witnesses, friends and associates who featured in the trial. Carver, Tenhoopen, Mitchell and others in their immediate circle were regularly and routinely heavily affected by one or other of these drugs. This evidence was unavoidable and essential in order to provide the context in which the charged offending is said to have taken place and to obtain a proper understanding of the relationships between the defendants and the various witnesses. I have not used this evidence (or any other discreditable conduct evidence concerning the defendants) so as to engage in propensity reasoning or by way of bad character or so-called bad person reasoning. Statements of intention and states of mind There are two pieces of evidence led on the prosecution case concerning statements of intention. The first relates to statements by Tenhoopen to his girlfriend Ms McCormack about his intention to go to Adelaide to steal cannabis. The second relates to the evidence given by Ms D about JPH telling her he was going to town. These statements are not hearsay evidence, rather they are circumstantial evidence going to proof of a relevant state of mind. As King CJ said in The Queen v Hendrie:[20]It is well established law that a person's state of mind may be proved by contemporaneous statements made by that person. Such statements are not hearsay because they are not adduced for the purpose of proving the truth of the statements. They are original circumstantial evidence tending to establish the state of mind. Their evidentiary value is derived from experience of human behaviour which indicates that people tend to express their intentions or their states of mind. For that reason what a person says is some evidence of what he is thinking. It is circumstantial evidence which may form a basis for an inference as to his intention or other state of mind.[20] (1985) 37 SASR 581 at 585.The witnesses ‑ a brief overview A number of agreed facts were tendered together with a large number of exhibits. In addition, the Court conducted a view at 17 Carousel Street and the immediate vicinity, including observations of the locations of various CCTV cameras and at Gilbert Street, Ingle Farm. What I observed during the course of the view is not evidence, however the view assisted me to understand and assess the evidence presented in Court. Investigation witnesses

Decision

Reasons for decision

Queensland police found 3.6 grams of dry female cannabis plant and cannabis leaf, an Apple iPhone and an Apple iPhone charger in Mitchell’s vehicle when it was seized in Queensland. The iPhone is associated with a mobile number used by Tenhoopen.[310] Conclusion[310] T1284.Was there an agreement to commit the offence of robbery? I find beyond reasonable doubt that there was a plan between all four defendants and JPH to steal Mr Gjabri’s cannabis. Carver and Rigney admit that they were part of a plan to steal cannabis. Even in the absence of these admissions it is my view that the circumstantial evidence outlined above demonstrates their involvement in that plan. Tenhoopen has made no admissions, but I find beyond reasonable doubt that he too was part of the plan. I do this on the basis of the evidence of Ms McCormack, Ms Carson and SW, the text messages with Ms McCormack both before and after the theft, the chronology provided by the phone tower, speed camera and CCTV evidence, the cannabis in his shed the day after the theft, the listening device evidence, his connection with Carver including the bud stripper with Mr Chan’s fingerprints, his connection with Mitchell and the flight to Queensland. The only rational inference arising from this combination of circumstances is that Tenhoopen was a participant in a plan to steal the cannabis. Mitchell denies knowing anything about the plan to steal cannabis. I have rejected his evidence. It is not plausible that he undertook all of the activities he was involved in with no prior knowledge of the planned theft. In finding beyond reasonable doubt that Mitchell was part of the plan to steal cannabis, I accept the evidence of Ms McCormack and Ms Carson about the conversation with Tenhoopen in the shed prior to the theft. This indicates that Mitchell was told about the plan to steal cannabis including that Carver was involved. He was instructed as to what clothing to wear, there would be no point to this unless he was to take an active part in the theft. I also take into account the chronology provided by the phone tower, speed camera and CCTV evidence, the DNA evidence relating to the secateurs, the flight to Queensland and the lies told to Detective Ward. The only rational inference arising from this combination of circumstances is that Mitchell was a participant in a plan to steal the cannabis. The defendants intended to steal cannabis; did they intend to threaten or use force? There is no direct evidence from any of the defendants as to their intentions. As against Tenhoopen alone I note his admissions to the use of force to Ms McCormack, Ms Carson and Mr W and his comment on the covert listening device. There is no like evidence in respect of the other defendants. The intentions of all four defendants and JPH must be inferred from the surrounding circumstances. The plan to steal cannabis may not have been sophisticated or meticulously planned but neither was it spur of the moment or opportunistic. 17 Carousel Street had been identified and was targeted. The defendants did not simply happen upon a commercial grow house. I infer that at least one of the defendants had some knowledge of this and that this information was shared between them.

Ratio Decidendi

Legal Principle Established

It is not necessary for a court, having conducted a trial by judge alone, to set out in the reasons for verdict the standard or obvious directions of which the trial judge is bound to be aware. I do nevertheless set out some of the principles that I have applied in this matter. Onus of proof and separate consideration The onus of proof is beyond reasonable doubt. Each defendant is presumed innocent unless, and until, his guilt has been proved beyond reasonable doubt. This requirement extends to proof beyond reasonable doubt of every element of the offence charged. To the extent that any defendant has put forward a defence, or innocent explanation, he does not have to prove it. The burden of proving an offence lies wholly upon the prosecution. It is not sufficient for the prosecution to show a suspicion of guilt or that a defendant is probably guilty. A defendant can only be found guilty of an offence if the evidence proves his guilt beyond a reasonable doubt. Each defendant, and the evidence admissible in relation to him, must be given separate consideration. The right to silence No defendant gave evidence. The exercise of that right must not be used against a defendant. It must not be treated as an admission, nor can it be used to fill in gaps in the prosecution evidence. This does not make the prosecution case stronger or more persuasive. Mitchell gave evidence at the previous trial. The transcript was read in this trial and formed part of the prosecution case. Mitchell’s evidence was given on oath. I did not have the opportunity to see and hear Mitchell give the evidence, nor have I had the opportunity to assess his demeanour when tested in cross examination. I will assess his evidence from the previous trial in the same way as I assess the evidence of other witnesses. I will not treat this evidence as deserving less weight simply because Mitchell is a defendant. I can give it whatever weight I consider it deserves. Circumstantial evidence The prosecution relies upon circumstantial evidence. A guilty verdict cannot be returned unless the evidence is inconsistent with any reasonable hypothesis other than guilt. Guilt must be the only rational inference. There are two steps in approaching a circumstantial case. First, it is necessary to consider the evidence upon which the prosecution relies and decide what facts are established. Second, is the need to consider what inference, or inferences, can be drawn from the established facts. The second step requires a consideration of the combined strength of the facts established by the evidence. There cannot be a guilty verdict unless the circumstances exclude any reasonable explanation consistent with innocence. In other words, before any defendant can be found guilty of an offence, guilt must be the only rational inference to be drawn from the facts or circumstances which I accept are established on the evidence. Witnesses In making findings of fact, I must rely upon the evidence given by the witnesses and the evidence contained in the exhibits. I must apply my common sense; I have reminded myself of the usual directions given in this state to juries concerning the proper approach to assess the various witnesses who gave evidence, their credibility and reliability.