R v Mitchell (No 3)

[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

Constructive murder

Manslaughter as part of extended joint criminal enterprise

Issues for determination

Legal directions

Onus of proof and separate consideration

The right to silence

Circumstantial evidence

Witnesses

Discreditable conduct evidence

Statements of intention and states of mind

The witnesses ‑ a brief overview

Investigation witnesses

Civilian witnesses

Expert witnesses

Mr Gjabri and the discovery of his body

Crime scene - 17 Carousel Street

Autopsy

Lorraine Avenue building site

CCTV footage

Police evidence

Expert evidence

Cannabis transfer in Gilbert Street

The phone evidence

8 October 2018

The return to Murray Bridge

Traffic camera evidence

The Holden Commodore

The Subaru

Bridie McCormack

Shania Carson

Ms D

Stephanie Hunter

Sok Ratha Chan

Jeremy Hall

Chloe Cheer

Professor Jason White

Tim Sydenham

QLD trip and the arrest of Carver

Transcript of Mitchell’s evidence from previous trial

Mitchell – Police interviews

Phone intercepts

Calls admissible in relation to Carver

Call admissible against both Carver and Rigney

Covert listening device - Tenhoopen

Carver admissions to Detective Newbery

Examination of vehicles

Searches

4 Jarvis Street

31 Mary Terrace

168 Swanport Road

Mr W

DNA Evidence

Brief outline of each defence case and closing submissions

Carver

Mitchell

Rigney

Tenhoopen

Circumstantial evidence relied upon for all defendants - findings

Crime scene evidence findings

Autopsy results

CCTV footage, mobile phone movements and traffic cameras

Gilbert Street cannabis transfer

Evidence admissible against some of the defendants – findings

Ms McCormack and Ms Carson - Mitchell, Tenhoopen & Carver

The trip to Queensland – Mitchell, Tenhoopen & Carver

Phone contact between Carver and Rigney

The case against Carver

DNA evidence

Items located at Carver’s house

The cannabis bud stripper

Admission

Telephone intercept evidence

The case against Rigney

Intercepted phone call with Carver

Holden Commodore

Mr Gjabri’s mobile telephone

DNA on the steering wheel of Mr Gjabri’s Mazda

The case against Tenhoopen

Mr W

The listening device

Connections with Carver

The cannabis remnants

The case against Mitchell

Evidence given at last trial

The DNA evidence on the secateurs

The lies told to police – consciousness of guilt

The location of cannabis by Queensland Police in his Subaru.

Conclusion

Was there an agreement to commit the offence of robbery?

Pathways to conviction for murder

Executive summary

1. The defendants, Benjamin John Mitchell (‘Mitchell’), Alfred Claude Rigney (‘Rigney’), Matt Bernard Tenhoopen (‘Tenhoopen’) and Aaron Donald Carver (‘Carver’) have been jointly charged on Information with one count of murder, contrary to s 11 of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’). It is alleged that the defendants, on 8 or 9 October 2018 at Para Vista, murdered Urim Gjabri (‘Mr Gjabri’). Each of the defendants entered pleas of not guilty and elected to be tried by a judge without a jury. For the reasons that follow, I find that each of the defendants is guilty of murder.

   Brief outline of the prosecution case

2. 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

3. 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’).

4. 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

5. 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.

6. 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

7. Robbery is an aggravated form of theft.  Theft, or stealing, is committed when a person dishonestly, without the consent of the owner, takes and carries away anything capable of being stolen, with the intention at the time of the taking to permanently deprive the owner of that property or to make a serious encroachment on the owner’s proprietary rights.  To convert what would otherwise be simple theft into robbery, the defendant must use or threaten to use force against the person with the property in order to take the property or to escape from the scene.  The force or threat must be made at the time of or immediately before or after the theft.  The prosecution alleges the aggravated form of robbery on the basis that it is said that each defendant committed the offence in company with others.

   Extended joint criminal enterprise

8. The first legal pathway to murder that the prosecution relies upon is extended joint criminal enterprise.  This principle remains the policy of the common law in Australia.[4]  In Mitchell & Others v The King (‘Mitchell’), Kiefel CJ described the principle as follows:[5]

   Each of the parties to a joint criminal enterprise is equally guilty of the crime that is the object of the enterprise and which is committed, so long as the agreement to commit it (which may be express or inferred) remains on foot. That is so regardless of the part each has played in its commission. Each party is also guilty of any other offence (“the incidental offence”) which is committed by a co-venturer that is within the scope of the agreement. The incidental offence will be within the scope of the agreement to commit the first-mentioned crime if the parties contemplate its commission as a possible incident of the execution of their agreement.

   The principle of extended joint criminal enterprise liability arises where a party to a joint criminal enterprise foresees, but does not agree to, the commission of an incidental crime in the course of carrying out the agreement. That is to say, the principle applies where the commission of an incidental offence lies outside the scope of the common purpose but is nevertheless contemplated as a possibility. The parties are each criminally liable for the incidental offence if with foresight of the possibility that it might be committed they nevertheless continue to participate in the enterprise and that is so whether the foresight is that of an individual party or is shared by all parties. Criminal culpability of this kind is consistent with the general principle that a person who assists or encourages the commission of an offence may be convicted as a party to it.

   [Citations omitted]

   [4]    Miller v The Queen (2016) 259 CLR 380; Mitchell.

   [5]    Mitchell at [14] – [15].

9. Gageler, Gleeson and Jagot JJ made similar observations:[6]

   Pursuant to the common law doctrine of EJCE, criminal liability is imposed on a secondary party for an additional offence committed by a primary party where the secondary party has participated with the primary party in the execution of an agreement to commit another offence with foresight of the possibility that the primary party might commit the additional offence as an incident of executing their agreement. The justification for the secondary party being criminally liable for the additional offence committed by the primary party in those circumstances is said to lie in “the mutual embarkation on a crime with the awareness that the incidental crime may be committed in executing their agreement”. The execution of the common purpose and the foreseen attendant risk of an additional crime being committed are said to be a “package deal” in that the secondary party’s voluntary assumption of the risk of the additional crime being committed is seen to be implicit in the secondary party’s subscription to the agreement which carries that risk.

   [Citations omitted]

   [6]    Ibid at [33].

10. Gordon, Edelman and Steward JJ set out the principle and referred to it in the context of a robbery as follows:[7]

    The doctrine of “extended joint criminal enterprise”, as the name suggests, involves an extension, beyond the scope of the agreement, of responsibility for a joint criminal enterprise. In Miller, the doctrine of extended joint criminal enterprise was expressed to apply where a party to a joint criminal enterprise has not agreed to the commission of a crime but has instead foreseen the commission of that crime in the course of carrying out the agreement and continues to participate in the enterprise. What is to be foreseen is that an incidental crime might be committed, being all elements of that crime.

    In Miller, the joint judgment of five members of this Court described the “paradigm case” of extended joint criminal enterprise as one “where the parties agree to commit a theft and, in the course of carrying out their plan, one of them kills the intended victim with the requisite intention for murder”. The liability of the other parties to the agreement would arise if they “foresaw murder as a possible incident of carrying out the agreed plan”. The opening paragraph of the joint judgment in Miller made plain what is meant by foresight of the commission of the crime of murder: foresight “that death or really serious bodily injury might be occasioned by a co-venturer” and also foresight that the co-venturer might act with “murderous intention”.

    [Citations omitted]

    [7]    Ibid at [56] – [57].

11. In other words, in order to prove murder by extended joint criminal enterprise, the prosecution must establish as against each defendant that he:

    ·entered into an agreement with one or more people to commit the offence of aggravated robbery;

    ·foresaw the possibility that one of his co-offenders might, in the course of committing the offence of aggravated robbery, commit the offence of murder.  Specifically, that he foresaw the possibility that his co‑offender would intentionally occasion death or really serious bodily injury; and

    ·nonetheless continued to participate in the planned aggravated robbery.

    Constructive murder

12. The second legal pathway to murder is that available by way of constructive murder under s 12A of the CLCA which provides as follows:

    12A—Causing death by an intentional act of violence

    A person who commits an intentional act of violence while acting in the course or furtherance of a major indictable offence punishable by imprisonment for ten years or more, and thus causes the death of another, is guilty of murder.

13. Section 12A was introduced by Parliament in the Criminal Law Consolidation (Felonies and Misdemeanours) Amendment Act 1994 (SA) (‘the Amendment Act’).  The Amendment Act abolished the classification of offences as felonies and, with that, the concept of felony murder.  As Gordon, Edelman and Steward JJ noted in Mitchell:[8] 

    In the second reading speech in the Legislative Council of the Bill that introduced s 12A, the Attorney-General described the felony murder rule in orthodox terms as applying if a person "kills another by an act of violence committed in the course of commission of a felony involving violence". Although the Attorney-General made no reference to s 12A incorporating the common law rules of attribution of acts causing death, the Attorney-General said that the Bill had adopted the course of "retaining the [common law] rule to a large degree", adding later that "the scope of the statutory rule is somewhat different as it applies only to serious crimes".

    [Citations omitted]

    [8] Ibid at [72].

14. Prior to the introduction of s 12A constructive murder, or felony murder, occurring in the context of a joint criminal enterprise required only that the act causing death occurred in the course of the commission of a felony involving violence or danger irrespective of the intention or foresight of any participant that the act causing death would or might be done. There was no need to prove a joint criminal enterprise or extended joint criminal enterprise in respect of the act of violence that caused the death.[9]  The High Court in Mitchell determined that the situation is otherwise under s 12A.

    [9] Ibid at [37]; [62] – [65].

15. Gordon, Edelman and Steward JJ said:[10]

    The requirement in s 12A for "a person" to "commit" the "intentional act of violence" causing the death of another focuses upon the person who commits the particular intentional act of violence. Section 12A thus recognises a pathway in s 11 to direct, or primary, liability for murder. Its focus is upon the conduct and state of mind of the primary offender, who committed the act and thus caused the death. But, consistently with the common law rules of attribution of acts, a person will "commit" an act under s 12A and be liable for constructive murder where the primary offender's intentional act of violence was within the scope of their agreement, so that the primary offender's act can be attributed to the accused.

    [10] Ibid at [75].

16. Gordon, Edelman and Steward JJ then went on to conclude:[11]

    For the reasons explained above in relation to the first ground, any direction should separate that pathway to conviction for common law murder based on extended joint criminal enterprise from any pathway to conviction for common law murder based upon s 12A of the CLC Act. Where an accused is alleged to be the primary offender under s 12A, it would require a jury to be satisfied beyond reasonable doubt that the accused, while acting in the course or furtherance of committing the major indictable offence alleged by the prosecution, caused the death of the victim by an intentional act of violence. Where, in the case of joint criminal enterprise, an accused is alleged under s 12A to be a party to an agreement to commit the major indictable offence alleged by the prosecution, it would require a jury to be satisfied beyond reasonable doubt that the accused was a party to an agreement to commit that major indictable offence and that the agreement included the possible commission of an intentional act of violence of the same general nature as that which caused the death.

    [11] Ibid at [108].

17. This statement of the law was endorsed by Gageler, Gleeson and Jagot JJ who added that:[12]

    … for completeness that we agree that the statement by their Honours appropriately expresses the liability of primary and secondary participants in a murder based on the pathway to guilt provided by s 12A of the CLCA. In particular, we agree that the liability of an accused as a secondary party on that pathway requires proof beyond reasonable doubt that the accused was party to an agreement to commit a major indictable offence of the required kind and that the agreement included the agreement of the accused to the possible commission of an intentional act of violence of the same general nature as that which caused the death.

    [12] Ibid at [48].

1. Mitchell stands for the propositions that:

   ·the common law principle of extended joint criminal enterprise does not apply to s 12A of the CLCA;[13] 

   ·Section 12A does not create a standalone offence, it merely specifies one manner in which a person might be guilty of murder;[14] and

   ·the text of s 12A does not permit the attribution of an intentional act of violence by a primary offender to a secondary participant where the act was not agreed to or within the common purpose.[15] 

   [13] Mitchell at [30]; [42] – [46]; [104].

   [14] Mitchell at [36]; [73] – [74].

   [15] Ibid at [96] – [104].

2. In the circumstances of this case where the identity of the offender or offenders who inflicted the fatal injuries is not known, s 12A of the CLCA requires that the prosecution prove the following matters beyond reasonable doubt as against each defendant that he:

   ·entered into an agreement with one or more people to commit a major indictable offence, in this case aggravated robbery; and

   ·that the agreement to commit the aggravated robbery included the agreement of the defendant to the possible commission of an intentional act of violence of the same general nature as that which caused Mr Gjabri’s death. 

   Manslaughter as part of extended joint criminal enterprise

3. The third pathway to conviction relied upon by the prosecution is that of manslaughter as part of an extended joint criminal enterprise.  This will arise if it is not possible to establish the state of mind required by either the first or second pathways to conviction for murder, in which case the prosecution relies on manslaughter by an unlawful and dangerous act.  To prove this, the prosecution must establish beyond reasonable doubt, as against each defendant, that he entered into an agreement with one or more people to commit the offence of aggravated robbery and that he foresaw the possibility that one of his co-offenders might, in the course of committing the offence of aggravated robbery, commit the offence of manslaughter.  Manslaughter requires the proof of four elements beyond reasonable doubt:

   ·The defendant’s act or acts caused a person’s death;

   ·The defendant’s act or acts were voluntary and deliberate;

   ·The act or acts were unlawful; and

   ·The unlawful act or acts were dangerous. 

4. An act is dangerous for the purpose of this offence if it exposes a person to an appreciable risk of serious injury.[16]  An appreciable risk of injury is not sufficient.[17]  While an appreciable risk of death or really serious injury is not necessary, such higher states of risk would also meet the definition of dangerous.[18]  Dangerousness must be assessed objectively.  Would a reasonable person in the position of each defendant have realised that Mr Gjabri was exposed to an appreciable risk of serious injury.[19]  Like the test for causation, whether a person is exposed to an “appreciable” risk of serious injury is qualitative and must be decided in a commonsense manner, taking into account that the enquiry concerns criminal responsibility.

   [16] Wilson v The Queen (1992) 174 CLR 313 (‘Wilson’); Burns v The Queen (2012) 246 CLR 334.

   [17] R v Suppiah [2018] SASCFC 11 at [37] – [38].

   [18] Wilson; R v Fragomeli [2008] SASC 96 at [4]; [90].

   [19] Wilson.

   Issues for determination

5. Leaving aside the questions of identity and joint enterprise, I find that the prosecution has proven the following elements of the foundational offence of aggravated robbery beyond reasonable doubt.  Mr Gjabri’s cannabis was the subject of theft.  More than one person gained access to his house by force; the cannabis was removed and carried away in Mr Gjabri’s vehicle.  Plainly, there was an intention to permanently deprive Mr Gjabri of the cannabis. 

6. The questions that arise for determination, in the case of each defendant, are as follows:

   ·Did the defendant enter into and participate in a joint enterprise to steal the cannabis?

   ·Did the defendant contemplate, as part of the commission of the theft, that force would be used against Mr Gjabri; and

   ·Did he contemplate that the force used against Mr Gjabri would comprise acts done with the intention to kill or to cause GBH? Or alternatively

   ·Did the agreement include the possible commission of an intentional act of violence of the same general nature as that which caused Mr Gjabri’s death? Or alternatively

   ·Did the agreement include the commission of a dangerous act or acts that exposed Mr Gjabri to an appreciable risk of serious injury?

   Legal directions

7. 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

8. 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.

9. Each defendant, and the evidence admissible in relation to him, must be given separate consideration.

   The right to silence

10. 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. 

11. 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

12. 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. 

13. 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

14. 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.  

15. 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

16. 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

17. 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

18. 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

19. On the prosecution case, a number of police officers involved in the investigation gave evidence, these were:

    ·Crime scene investigators: Brevet Sergeant Buller who attended the crime scene at 17 Carousel Street, Para Vista; Brevet Sergeant Pearson who was involved in collecting items from the area surrounding 17 Carousel Street, Para Vista; Sergeant Logan who attended Tenhoopen’s home in Murray Bridge.

    ·Officers who attended Gilbert Street: Senior Constable Wilson and Senior Constable Woolman.

    ·Officers involved in the seizure of various exhibits: Detective Brevet Sergeants Edwards, Porter, Corbridge, Crettenden, West and Brevet Sergeant Cushnie who also gave evidence about listening devices in relation to Tenhoopen; Detective Sergeants Walker and Mason who compiled the master exhibits log. 

    ·Officers involved in the discovery of Mr Gjabri’s body: Detective Brevet Sergeant Seneca and Brevet Sergeant McDonald.

    ·Investigation and arresting officers: Detective Sergeant West who attended in Queensland, interviewed Mitchell and was involved in the arrest of Carver and Mitchell; Detective Brevet Sergeant Newbury who was involved in several aspects of the investigation including attending the crime scene, preparation of the CCTV compilation, a forensic procedure involving Carver and obtaining telephone intercept warrants; Sergeant Holmes who obtained and analysed phone records; Detective Sergeant Batzavalis who controlled a covert operative.

    ·Tim Sydenham – formerly a member of SAPOL’s media and public engagement section concerning the timing of information released about the discovery of Mr Gjabri’s body. 

    Civilian witnesses

20. Ms Folwell, Mr Passmore and their son Codey gave evidence about events in Gilbert Street, Ingle Farm that occurred after the theft.

21. Dritan Boba (‘Mr Boba’), Ejup Hoxha (‘Mr Hoxha’), and Urim Halilaj (‘Mr Halilaj’) gave evidence about the discovery of Mr Gjabri’s body.

22. Trajan Kuzmanov (‘Mr Kuzmanov’), who is the owner of 17 Carousel Street, gave evidence about renting that property to a man who identified himself as Andrea Papa (‘Mr Papa’) in about April 2018.

23. A number of friends and acquaintances of the defendants gave evidence about various topics:

    ·Jeremy Hall and Chloe Anne Cheer who were friends of Tenhoopen.

    ·Bridie McCormack who was Tenhoopen’s girlfriend at the relevant time.

    ·Shania Carson, a friend of Ms McCormack and Tenhoopen, who was also involved in the trip to Brisbane.

    ·Mr W shared a cell with Tenhoopen and gave evidence of conversations with him following the charged events.

    ·Ms D who was previously in relationship with JPH.

    ·Sok Ratha Chan who was a friend of Carver.

    ·Stephanie Hunter who was at the time in a relationship with Carver and travelled to Queensland with him, Mitchell and Tenhoopen.

24. In addition, a redacted copy of a statement from Mitchell’s mother Brucynne Macumber was tendered by consent.[21] 

    [21] Exhibit P36.

    Expert witnesses

25. A number of experts gave evidence in this matter.  These were:

    ·two forensic scientists, Kahlee Redman, who gave evidence of her comparison of two sets of adhesive type tape[22] and Dr Oliva Handt, who gave evidence about examining DNA on various objects seized by police. 

    ·Professor Jason White, who has qualifications in pharmacology, gave evidence about the effects of cannabis on the human body. 

    ·Sergeant Holmes and Mr Jeremy Byers, who gave evidence about telephone records and cell phone towers. 

    ·Dr Cheryl Charlwood, a forensic pathologist, gave evidence concerning the autopsy she performed in relation to Mr Gjabri. 

    ·Dr Matthew Sorell and Associate Professor Gale Spring gave evidence about their examination of CCTV footage.

    ·Detective Brevet Sergeant Dalziel a police drug expert.

    ·Crime scene examiners, Brevet Sergeants Buller and Pearson and Sergeant Logan gave some opinion evidence interpreting certain items located at the crime scene and other locations such as the manner in which entry was apparently gained to the crime scene house.

    [22] T967.

26. The usual rule is that witnesses can only give evidence of facts, not opinions or conclusions drawn from those facts.  It is an exception to that rule that a properly qualified expert can give evidence of their opinion on matters within their expertise.  There are two requirements when assessing expert evidence.  First, it is for the trier of fact to decide what evidence to accept and what weight to give to it.  As with any witness, there is no requirement to adopt the opinion of an expert witness simply because they are an expert.  Second, an expert witness is to be assessed in the same way as any other witness but with other considerations in mind.  Those considerations include an assessment of whether the witness appeared impartial or biased, how their evidence fits with other accepted evidence and whether the witness has been referred to all the relevant facts in forming an opinion. 

27. In this case, there is no dispute as to the expertise of any of the expert witnesses.  There is some dispute about aspects of the expert evidence which I will deal with in context.  There is also an issue about what inferences I should draw from the evidence of these witnesses in the context of other evidence in this case.

    Mr Gjabri and the discovery of his body

28. Mr Gjabri was an Albanian national.  He came to Australia as a refugee.  He initially spent time in an immigration detention centre in the Northern Territory before moving to South Australia.  Whilst in the detention centre, in 2013, he met Mr Boba and Mr Hoxha, who were also Albanian refugees.  They became friends and remained in contact following their release from detention. 

29. Mr Boba shared a two-bedroom home with Mr Gjabri for about six or seven months at an address in Hectorville.  Mr Boba said that Mr Gjabri moved out in 2018 shortly before his death.  They remained in regular contact despite this as Mr Gjabri came to visit Mr Boba three or four times a week either at his home or his workplace.  Mr Boba did not know Mr Gjabri’s new address and had not been to 17 Carousel Street, Para Vista until concerns were raised about Mr Gjabri’s welfare in October 2018. 

30. Mr Boba described Mr Gjabri as being about 40-45 years old when he first met him.  Mr Gjabri was short, maybe 65 kilograms.  He had one leg shorter than the other and walked with an obvious limp.  He did not speak good English.  He understands that Mr Gjabri worked in construction, mostly tiling bathrooms. 

31. Mr Kuzmanov had owned 17 Carousel Street for many years.  He rented the property out.  In around April 2018, he rented it to a man who said he was called Andrea Papa (‘Mr Papa’).  He was working at the house when Mr Papa came up to see him to ask if he was renting it out.  The rent agreement was tendered.[23]  He said that Mr Papa was European, but he was not sure what nationality.  The tenant was a short man with a normal build.  Mr Kuzmanov could not remember if the man had a limp or not.  There were no problems with payment of rent.  Mr Kuzmanov did not go to the house whilst the tenant was in occupation and had no idea cannabis was being grown there.  The house was in good condition when he let it out.  There was nothing damaged or broken as far as he was aware.  There was no report of damage to the house made to Mr Kuzmanov whilst the tenant was in occupation.  Mr Kuzmanov said that after the police informed him of what happened at his property, he noted damage including to the laundry and kitchen door that was not present when he rented the property.

    [23] Exhibit P13.

32. Mr Boba sold his Mazda to Mr Gjabri for $1,000 before he moved out of Hectorville.  He believes the car was registered in Mr Gjabri’s name.  In the early hours of Tuesday, 9 October 2018 police attended at his home looking for the owner of the Mazda.  Mr Boba had last seen Mr Gjabri the afternoon or night before the police visit.  Mr Boba later spoke to Mr Hoxha about the police visit.  He and Mr Hoxha were concerned that Mr Gjabri may have been involved in an accident.  They went to hospitals to see if he had been admitted.  Mr Hoxha knew Mr Gjabri’s Carousel Street address.  They drove past the house, but no car was parked in the driveway. 

33. On Thursday, 11 October 2018 Mr Boba and Mr Hoxha spoke again.  They were concerned about Mr Gjabri as neither had heard from him.  Mr Hoxha confirmed Mr Boba’s evidence.  He was concerned as he could not reach Mr Gjabri by telephone.  Mr Hoxha contacted Mr Gjabri’s immigration lawyer and was contacted by Mr Gjabri’s brother in Albania who said he had not heard from his brother recently.  On Thursday night, before it got dark, Mr Hoxha returned to the Para Vista house with his wife and children.  They remained in the car whilst he went up the driveway to the back door.  He noted that the screen door was broken and that the wooden door was closed but not locked.  Mr Hoxha went into the living area.  He saw blood and Mr Gjabri lying alongside the bed.  He checked to see if there was anyone else in the house.  He did not see cannabis but did see plastic blocking various doors.  He was in the house for one to two minutes.  Mr Hoxha said it was a very traumatic moment. 

1. The next morning, 12 October 2018, Mr Hoxha visited Mr Gjabri’s cousin, Mr Halilaj.  He wanted Mr Halilaj to accompany him to the police station as Mr Halilaj has been in Australia for many years and speaks good English.  They picked up Mr Boba on the way and went to the Norwood Police Station.  Mr Hoxha reported what he found.  He could not recall the address but said he could show the police where the house was.  Mr Hoxha went to Carousel Street with Detective Brevet Sergeant Seneca in a police car. 

2. Mr Hoxha said that Mr Gjabri was working in 2018 as a tiler.  He had a work van and a car.  A few weeks before he died, Mr Gjabri asked Mr Hoxha for some putty and paint as a window had been broken one night.  He told Mr Hoxha that some men had broken a window.  Mr Gjabri didn’t know who they were. 

3. Mr Halilaj was related to Mr Gjabri by marriage.  Mr Halilaj was born in Albania but came to Australia in 1996.  He first met Mr Gjabri about a year after he arrived in Australia.  Immigration had called to ask if he could help Mr Gjabri find work.  Mr Halilaj is a tiler and offered Mr Gjabri tiling work with him.  The last time he saw Mr Gjabri was about two to three months before his death at the Newton Shopping Centre carpark.  Mr Gjabri had an obvious limp when he was walking.  He was not a big man.  Mr Halilaj was not sure how good Mr Gjabri’s English was as they always communicated in Albanian. 

4. Mr Halilaj knew Mr Boba and Mr Hoxha as friends of Mr Gjabri.  On Friday, 12 October 2018, he was at home in bed when he received a call from Mr Hoxha who told him that Mr Gjabri was dead.  Mr Hoxha came to his home and Mr Halilaj told him that they needed to speak to the police.  They attended the Norwood Police Station.  Mr Halilaj did not know that Mr Gjabri was living in Para Vista. 

5. Detective Seneca was working plain clothes investigation duties with Brevet Sergeant McDonald on 12 October 2018.  They received a tasking to attend the Norwood Police Station sometime after midday.  He met with Mr Halilaj, Mr Halilaj’s wife, Mr Boba and Mr Hoxha, who reported that a friend had been found deceased at property near Tea Tree Plaza Shopping Centre.  Mr Hoxha said he could drive there but did not know the suburb or street address.  Accordingly, Mr Hoxha went into their police car and directed them to the appropriate address.  They arrived at 17 Carousel Street, Para Vista at about 1:25 pm.  There was no vehicle present in the driveway.  Police understood from conversations with Mr Hoxha that Mr Gjabri’s vehicle, a Mazda sedan, was missing. 

6. Detective Seneca walked along the concrete driveway in the back portion of the house noting that there were what appeared to be cannabis leaves scattered across the concrete.  He entered through the rear entrance door telling Mr Hoxha to remain outside.  The screen door appeared to be damaged.  He opened the wooden door which was unlocked.  It opened into a laundry.  Detective Seneca noticed a knife on top of a washing machine in the laundry and blood droplets and blood smears on the tiled floor.  On the southern side or right side of the laundry there was a door that led into the kitchen area. 

7. Detective Seneca walked through the kitchen and observed significant amounts of blood.  As he entered the adjacent lounge dining area, he saw a male person lying on the floor parallel with a mattress that was up against the eastern wall of that area.  The man was lying on his right side with his head at the northern end and his feet at the southern end.  He was wearing a dark T-shirt and shorts, and he appeared to have a head injury with dried blood present in his hairline and around his head area.  There was a pool of fairly obvious blood that had gathered on the carpet in the vicinity of his head.  Detective Seneca did not touch or physically disturb the person in any way.  He then moved back through the kitchen via the laundry area to the northern side of the house finding three rooms running off a small passageway that appeared to have been converted to a hydroponic cannabis grow area.  Detective Seneca did a general reconnaissance of the property to make sure that there was no one else present or needing assistance.  He then left the house through the back door setting up an initial cordon whilst he and Brevet Sergeant McDonald reported back to police communications.  He remained at the scene until about 5:35 pm until he handed over to police officers from major crime. 

8. Brevet Sergeant McDonald gave evidence that confirmed the evidence given by Detective Seneca.  She did not enter the house but subsequently attended Mr Hoxha’s house to take a DNA sample from him and also to obtain some clothing and Nike sneakers for forensic purposes. 

   Crime scene - 17 Carousel Street

9. Brevet Sergeant Buller is a police officer of many years standing.  She has been in the forensic response section since 2015.  In that role she examines, reports on and interprets scenes of crime; she collects and preserves evidence to minimise contamination.  Typically, she attends major crime scenes including homicide.  She has specialist training, qualifications and experience.  Her expertise was not in dispute. 

10. Brevet Sergeant Buller attended 17 Carousel Street, Para Vista on Friday, 12 October 2018 at about 3:45 pm, with two other members of the forensic response section, Brevet Sergeants Strange and Robertson.  On arrival, they received a briefing from Detective Sergeant Ward who was one of the lead investigating officers.  Detective Ward told her that police had arrived prior to her attendance on 12 October 2018 and discovered Mr Gjabri dead in the lounge room.  The premises were insecure and there appeared to be three cannabis grow rooms inside the house.  Brevet Sergeant Buller was also advised that on 9 October 2018, a vehicle registered to Mr Gjabri was located in a street in Ingle Farm.  That vehicle was eventually taken to the police complex at Ottoway. 

11. Brevet Sergeant Buller drew a plan of 17 Carousel Street.[24]  She also arranged for an aerial photograph of the address[25] and for the taking of photographs of the scene and of Mr Gjabri’s vehicle.  The photographs were tendered in four volumes.[26]  Brevet Sergeant Buller explained her observations by reference to the plan and the photographs. 

    [24] Exhibit P1.

    [25] Exhibit P2.

    [26] Exhibit P3; Exhibit P4; Exhibit P8; Exhibit P10.

12. The house was a single storey cream brick house on the western side of Carousel Street.  The driveway was on the southern side of the house.  It had three bedrooms.  Bedrooms one and three were set up as cannabis grow rooms and bedroom two was more of a nursery for smaller cannabis plants.  There were the usual indicia of a hydroponic cannabis operation.  Brevet Sergeant Buller noted cannabis debris in various locations but mainly in the hall, bedrooms, bathroom, toilet, laundry and outside.  She also noted blood stain patterns in the lounge where Mr Gjabri’s body was located, through the kitchen, laundry, toilet and bathroom. 

13. Brevet Sergeant Buller examined the doors and windows of the property.  The front door was closed but not locked.  The door was damaged with pieces of the wooden frame, screws and striker plate on the ground.  The door opened inward.  There was black and white plastic secured to the front door by silver duct tape.  This would make it hard to use the front door.  The bedroom doors had a similar black plastic covering but these had zippers to make access easier.  Brevet Sergeant Buller said there was no visible tool damage on the outside of the front door.  The plastic on the door appeared torn by an object going from the outside to the inside. 

14. Brevet Sergeant Buller examined the back door, noting there was damage to the screen door with a distinctive bow in the door frame towards the outside possibly indicating that what caused the bow came from the inside.  The screen door was locked but not closed.  The screen door opened outwards.  The wooden door behind it opened in towards the laundry.  The striker plate for the screen door was located on the ground.  The damage to the screen door was most likely body pressure.  There was damage to the latch to the wooden door; the bottom hinge was also damaged.  There were no visible tool marks on the door frame.  Brevet Sergeant Buller gave her opinion that body force was used to gain entry to the house via the front door and that exit was gained via body force through the rear door.  Both doors were locked.  There were no signs of forced entry to any of the windows. 

15. Brevet Sergeant Buller described her examination of the external parts of the property by reference to the photographs, noting that cannabis leaf and buds were scattered over the driveway.  She obtained some shoe impression marks on the front porch.  When subsequently analysed these were inconclusive.  She undertook some DNA tests of various items and obtained fingerprints from various surfaces.  I will deal with the DNA evidence later in these reasons.  The fingerprint evidence from 17 Carousel Street did not show anything of relevance.[27]

    [27] Exhibit P94.

16. Brevet Sergeant Buller examined the lounge room where Mr Gjabri’s body was discovered.  There was some damage to items of furniture and some cannabis debris in the dining room.  She described some blood stains.  There was a mixture of saturation transfer and passive drops.  Photograph 79 showed Mr Gjabri’s body as it was found lying on his right side in a north to south direction with his head to the north and feet to the south.  He had a brown pillowcase and bed skirt around his body.  He and his clothes were blood stained.  Brevet Sergeant Buller called the Forensic Science Centre of South Australia (‘Forensic Science Centre’) and arranged for the attendance of Dr Charlwood.  Mr Gjabri’s body was conveyed to the mortuary at approximately 8:30 pm. 

17. Brevet Sergeant Buller then gave evidence about her examination of other rooms in the house as follows:

    ·The laundry contained a number of blood stains and remnants of cannabis, a knife was located on the washing machine,[28] a wallet was found in the toilet, belonging to Mr Gjabri.  There were considerable blood stains in both the toilet and the bathroom.  There was also possible vomit in the sink.

    ·Entrance hallway:  transfer blood stains on the front door and door frame and cannabis remnants on the carpet.  A black latex glove was located on the floor 70 cm west of the front door, which appeared to have been used, pulled off a hand and dropped.  It appeared to be inside out.[29]  No other black latex gloves were located by her. but a box of blue latex gloves was later located in the kitchen.  Those gloves were not seized but they were photographed in situ.[30]  

    ·A screwdriver, hammer and secateurs were seized from the floor area of the hallway near bedroom three. Subsequently, Brevet Sergeant Buller swabbed those items as well as with the knife, bike chain and padlock for DNA.  These samples were subsequently submitted to the Forensic Science Centre for analysis.  I will deal with the DNA results later in these reasons but for present purposes I note that Brevet Sergeant Buller described swabbing the secateurs and the knife.  She agreed that the contamination on the swabs of those two items observed by the Forensic Science Centre was her DNA. 

    ·Interior of the three bedrooms:  bedrooms one and three were set up as grow rooms, whereas bedroom two was more of a nursery.  Plants had been in black pots and crudely cut at the base of the stems.  She noted blue electric tape around the base of the stems.  The contents of the pots were scattered around the room.  She noted at the entrance to bedroom one, some passive blood drip stains and blood deposited on cannabis remnants.  In bedroom two, there were 12 immature cannabis plants and a box of cannabis seedlings.  There was no obvious sign of disturbance in that room.  In bedroom three there were six large black tubs with stems also crudely cut or broken.  These had yellow electrical tape rather than blue. 

    ·Kitchen: the door handle of the kitchen/laundry door was on the floor.  The handle appeared to have been pulled out of the wood and there were marks on the door which show where the door handle was previously attached. 

    ·There were blood stains throughout the kitchen including on the fridge.  There was also possible vomit on the floor.

    [28] Exhibit P5.

    [29] Exhibit P6.

    [30] Exhibit P4.

18. In cross examination Brevet Sergeant Buller agreed that the doorway between the lounge and the hallway was a sliding door that was closed but not locked.  There was plastic applied to the outside of that door frame by silver duct tape in the hall.  That plastic was intact and there was no suggestion that the doorway was used for the purpose of accessing the hallway from the lounge. 

19. Brevet Sergeant Buller noted there was blood on top of the cannabis remnants in various locations such as the bathroom, hallway and toilet.  It did not appear that the cannabis had been pulled through the blood.  This was consistent in her opinion with Mr Gjabri moving around in bloodied condition after the cannabis was removed.  In terms of the blood on the walls in the general vicinity of the body, she said she could not say how they may have got there.  The blood patterns did not give any indication as to the location or sequence of blows inflicted.

20. Brevet Sergeant Buller also agreed that there were some bricks in bedroom three, they were not the focus of her examination or the photographs, but she agreed that photographs 148 and 149 showed some partial bricks in that bedroom under wires. 

21. Detective Brevet Sergeant Edwards acted as the exhibits officer, overseeing the collection and cataloguing of evidence recovered from the premises.  In addition to the items referred to above, a number of other exhibits were tendered arising from the search of 17 Carousel Street.  These include a video walk through of the premises[31] and further photographs of the premises.[32]  A series of bricks[33] and a black glove that was located on top of a brick in bedroom three.[34]  Some of the bricks are in various photographs as is the black glove.[35]

    [31] Exhibit P17; Exhibit D21.

    [32] Exhibit P18.

    [33] Exhibit P20.

    [34] Exhibit P18.

    [35] T412.

    Autopsy

22. Dr Charlwood, a forensic pathologist at the Forensic Science Centre, conducted the autopsy.  There was no dispute as to her qualifications or experience. 

23. Dr Charlwood attended the crime scene on Friday 12 October 2018 at about 5:55 pm.  She had been contacted by Brevet Sergeant Buller regarding Mr Gjabri’s death.  Dr Charlwood explained the benefits of the forensic pathologist attending the crime scene to obtain a first-hand observations. 

24. Mr Gjabri was found lying on the floor, next to a single bed, in a lounge room that had been made into a makeshift bedroom.  Exhibit P3, specifically photograph 61, depicted Mr Gjabri as Dr Charlwood first observed him.  She described Mr Gjabri as a slim adult male lying on the floor on the right-hand side of his back.  Her observations of his location are consistent with those of the police.

25. Dr Charlwood conducted a preliminary examination of Mr Gjabri at the scene, trying not to disturb his body.  She did not remove any of his clothing.  She noted a pillowcase in the vicinity of his head on the floor and that there was marked blood staining around the position of his head.  There were finger or hand marks present within the blood and plentiful blood staining to Mr Gjabri’s face, head, hands and arms.  There was blood staining to the front of his pants and his exposed feet.  The blood on the top of the head was heavily congealed and dried.  Rigor mortis was present.  She noted two small abrasions to his left elbow and some to the left side of his neck and possibly also the right elbow.  She couldn’t see any stab or cut wound but could feel a possible laceration to the skin of the scalp and swelling to the scalp at the sides and the top of the head.  Mr Gjabri’s rectal temperature was 18.2 degrees which was below the threshold that could be used to make an assessment about the time of death. 

26. After the examination, Mr Gjabri’s body was transported to the Forensic Science Centre.  A CT scan was performed on 13 October 2018 and Dr Charlwood performed an autopsy on 14 October 2018.  Dr Charlwood determined that the cause of Mr Gjabri’s death was blunt force head injuries with an extradural haemorrhage.  She described this as being a form of trauma to the head that excludes any sharp force injuries.  In Mr Gjabri’s case, this trauma caused a skull fracture, laceration to the scalp and haemorrhage over the surface of the brain.  The toxicology report confirmed that Mr Gjabri had not consumed alcohol or taken any illicit drugs.  There were no competing causes of death.  The determination of the cause of the death was relatively straight forward. 

27. Dr Charlwood prepared a four-page document of body charts which depicted the injuries she located on Mr Gjabri’s body.[36]  A selection of photographs taken during the autopsy were also tendered.[37]  Dr Charlwood described the laceration to Mr Gjabri’s scalp by reference to the body charts.  There was a ‘V’ shaped laceration involving the upper left scalp within the hair extending from just right of the midline to the top of the scalp.  The two components measured 3.5 cm and 9.5 cm.  At the top of ‘V’ there was a shorter component of the wound being a 0.5 cm extension with an acute end.  She described a second injury further forward on the left side of the scalp as an abrasion and superficial laceration.  It measured up to 2.1 cm in length.  Underlying the lacerations, and associated with the wounds, was diffused bruising showing extensive haemorrhage through the soft tissues of the scalp particularly around the left side related to the laceration or damage and sheering of the scalp tissues from the skull.  Dr Charlwood also noted that there was a comminuted or fragmented area of fracturing on the left side of the scalp that was partially depressed – that is, pushed down from the top towards the brain.  Mr Gjabri’s brain was soft and swollen.  The extradural haemorrhage was large, approximately 1.5 to 2 cm in thickness and the brain had been pushed from the left to the right.  Dr Charlwood described the injuries as possibly being caused by chop type injuries.  She said:[38]

    QIn your report you refer to the head injuries being possibly the result of chop type injuries, what does that mean.

    AI've described that because sometimes there was overlap between what I was talking about before, lacerations and incised wounds, and with Mr Gjabri's lacerations on his scalp, they're quite clean cut lacerations, the edges are quite defined with - it does have some bruising and abrasion, but there is not a great deal. And sometimes a wound from a blunter instrument that is normally used for cutting, such as an axe, for example, can produce wounds like that as well.

    [36] Exhibit P31.

    [37] Exhibit P32. 

    [38] T538.9-17.

28. She opined that such injuries could be produced by something like a solid pole or bat if that object had a defined edge.  She characterised the force used to inflict these injuries as being severe in nature.  It is likely they are overlapping wounds, so at least two, but it is possible that the injuries were caused by one blow depending on the implement.

29. A specialist neuropathologist examination after the autopsy noted compression of the brain resulting in a large compression deformity mainly affecting the front parts of the cerebral hemisphere on the side.  Because of this, it was thought that Mr Gjabri survived a certain amount of time after the assault.  Dr Charlwood noted that there were other features that suggested there was a period of survival, including vomit at the scene and aspirated into Mr Gjabri’s airways together with the presence of blood around the crime scene.  Dr Charlwood said it was difficult to estimate how long Mr Gjabri survived following the infliction of the head injury.  Some of Mr Gjabri’s tissues and areas of bruising were examined under the microscope and reactive inflammatory change was noted.  In view of this, Dr Charlwood said that the minimum survival period is likely to have been around 30 to 35 minutes, but Dr Charlwood considered that the survival period may have been longer than an hour to possibly up to 24 hours. 

1. Apart from the head injury, Dr Charlwood noted a number of other injuries during the course of the autopsy which she described by reference to the body charts and photographs.[39]  These included bruises, abrasions and lacerations to the limbs and the chest.  Dr Charlwood agreed that the various injuries she saw on the legs, torso and arms were relatively minor and that it was not possible to say how many blows may have accounted for the pattern of bruising as she saw on the legs or indeed elsewhere on the body.  She said it depended on what implement was used. 

   [39] T1636–1637.

2. In cross examination, Dr Charlwood agreed that one blow may have accounted for the constellation of injuries she observed on Mr Gjabri’s head.  She considered the wounds were more likely merging or overlapping wounds but she couldn’t exclude, depending on what was used to cause the injury, that there was just one blow.  She was unable to say whether the blow or blows would have rendered Mr Gjabri immediately unconscious but the observations at the scene indicated that if he was, he regained consciousness at some point.  Alternatively, Mr Gjabri may not have been immediately unconscious and lapsed into that unconscious state at a later stage.  Dr Charlwood saw no evidence that Mr Gjabri had been tied up and there was no evidence of knife injuries.

   Lorraine Avenue building site

3. Brevet Sergeant Pearson seized a brick from a building site at Lot 34 Lorraine Avenue[40] and also took photographs of that site.[41]  The prosecution contends that the bricks located at 17 Carousel Street were consistent in appearance with bricks from that nearby building site.  The prosecution contended that the defendants entered the property armed with these bricks.  I reject this.  There was no evidence that bricks were used to assault Mr Gjabri.  There is no evidence that the bricks found at the crime scene were the same as the bricks at the building site apart from a superficial similarity.  There is no evidence that the defendants took bricks to the property. Indeed, it appears more likely than not that the bricks found at the crime scene were part of the hydroponic set up. 

   [40] Exhibit P29.

   [41] Exhibit P28.

   CCTV footage

4. A central plank of the prosecution case relates to CCTV footage obtained from domestic premises surrounding 17 Carousel Street.  The prosecution relies upon the CCTV footage in respect the movement of vehicles in the vicinity of 17 Carousel Street, the movement and number of people in the vicinity of 17 Carousel Street and the presence of what is said to be a pole consistent with the item used to inflict the injuries upon Mr Gjabri. 

   Police evidence

5. A number of police officers gave evidence about this topic.  The footage was taken from houses in Para Vista located at 7 Janet Street, 16 Lorraine Avenue, 33 Lorraine Avenue (two cameras) and 6 Carousel Street.  All of the footage obtained was provided on a disc.[42]  A compilation of relevant CCTV footage compiled in a time sequence was prepared by the police (“the compilation video”).[43] 

   [42] Exhibit P49; Exhibit P50.

   [43] Exhibit P51.

6. Detective Brevet Sergeant Corbridge attended at 7 Janet Street, which was identified as premises with a CCTV system that captured relevant footage.  She seized the footage which she copied onto a disc.[44]  Detective Corbridge noted that a person viewed in the footage appeared to throw a cigarette butt into the grass opposite Janet Street. She and Detective Crettenden subsequently inspected that area.  They took photographs[45] and Detective Crettenden seized the cigarette butt for forensic analysis.  Carver admits that he is the person who discarded that cigarette butt.

   [44] Exhibit P25.

   [45] Exhibit P26.

7. Detective Corbridge was also handed the hard drive for the CCTV system at 6 Carousel Street by Detective Brevet Sergeant Newbury which she booked into police property.  Detective Brevet Sergeant Crettenden confirmed the evidence given by Detective Corbridge. 

8. Detective Brevet Sergeant Edwards made enquiries as to CCTV in the area of 17 Carousel Street.  He attended 16 Lorraine Avenue and obtained CCTV footage from that address.  He seized the whole unit and booked that into police property.  Detective Newbury gave evidence about seizing a Swann hard drive CCTV unit from 6 Carousel Street which he handed to Detective Corbridge.  There was no evidence as to who seized the footage from 33 Loraine Avenue.  There was, however, no suggestion that the footage did not relate to the night in question.  Indeed, in the context of the other footage obtained from other locations it clearly did.

9. All of the police officers gave evidence that they checked the accuracy of the time displayed on the CCTV footage.  There were some discrepancies likely due to the recent commencement of daylight savings.  An agreed schedule of the adjusted times was tendered.[46]

   [46] Exhibit P50.

10. Senior Constable Timothy Holmes was tasked with reviewing and editing the CCTV footage seized from the four Para Vista addresses.[47]  He was unavailable to give evidence at trial due to illness.[48]  In his stead, Detective Newbury gave evidence concerning the preparation of the CCTV compilation.  Detective Newbury in his oral evidence confirmed that “the compilation is the relevant snippets of footage effectively glued together in sequence showing the movements of cars and people in the area”.[49]  I infer from his evidence that the footage in the compilation comprises all movement in the area at the relevant time.  Detective Newbury described the vicinity of the various cameras and explained the graphics used to identify the various addresses.  The compilation showed the unadjusted or display times from the original CCTV footage along with the adjusted actual time in order to see the variation in times.[50]  The original CCTV footage was not modified or edited in any way to produce the compilation other than the inclusion of markers or pointers to highlight certain areas of activity.  Detective Newbury then explained the times and locations of the various cameras as the court viewed the disc. 

    [47] T907.

    [48] T908.

    [49] T919.

    [50] T920.

    Expert evidence

11. Two experts gave evidence concerning CCTV and its limitations.  Dr Sorell was called on the prosecution case.  Professor Spring was called by Mitchell.  Whilst it was apparent that both experts had prepared reports neither their reports, nor the briefing material that was provided to them, was tendered.  I do not know why this was the case but, given that the parties were represented by experienced counsel, I assume that there was a good forensic basis for that decision.  Unfortunately, the fact I did not have access to their reports or details of the material they were provided made their evidence considerably more time consuming and complex than it would otherwise have been. 

12. Neither expert was provided with details of the equipment used to produce the footage, nor were they given any material concerning distances or lighting conditions.  It also became apparent during their evidence that the experts were not provided with the disc containing the CCTV footage or the hard drives seized by police.  In those circumstances, the experts were not able to examine the original digital evidence or apply any specialised software.  The effect of this is well summarised in the following portion of the cross-examination of Dr Sorell:[51]

    QSo you haven't used any additional tools, programs, software etc. to actually have a look at how the footage has been coded.

    AIf the footage had been supplied to me in a readily encoded original format, so, for example, some of the footage was supplied to me on a copy of a hard drive that came out of a video recorder, it is possible for me to go back to that - into that footage. It is very time-consuming to do so under those circumstances and I did not. So this is limited to reviewing this footage as it has been supplied to you in this compilation. It is really the only option that I had under the circumstances. But, yes, as a consequence, I'm using other video playback programs than the one we are using here and I'm using better equipment but I am not using specific software to analyse this footage any more deeply.

    [51] T1502–1503.

13. The compilation video runs for 13:27 minutes and has 14 separate portions of video, together with graphics, identifying the locations of the cameras.  Neither expert commented upon the entirety of the footage contained on the compilation video.  The experts gave evidence about four pieces of footage.  I am uncertain whether this is because they were provided with an edited version of the compilation video or whether they were simply asked to comment upon portions of the footage in the compilation video.  In any event Professor Spring, who provided the first report, described the footage he viewed as footage 1 to 4.  This was not congruent with the manner in which the footage was tendered in court.  I make no criticism of Professor Spring for this.  Plainly, it had something to do with the way in which he was briefed.  Equally, I make no criticism of Dr Sorell for using the same descriptors – this was sensible in the circumstances.  This difference in terminology did, however, cause some initial confusion when their evidence was given. 

14. During evidence, generally the footage being viewed was described by reference to the time at which the video appeared in the compilation rather than the time at which it was recorded.  I will adopt the same process.  I will refer to the individual segments of footage on the compilation video as set out in this table:

Footage	Location	Time in seconds	Expert description
1.	16 Lorraine Avenue	.19 to .45
2.	7 Janet Street	.56 to 1.32
3.	6 Carousel Street	1.45 to 2.45
4.	7 Janet Street	2.57 to 3.34
5.	6 Carousel Street	3.45 to 3.56
6.	7 Janet Street	4.05 to 4.35
7.	7 Janet Street	4.37 to 6.05	Footage no. 1
8.	16 Lorraine Avenue	6.16 to 6.45
9.	33 Lorraine Avenue (camera one)	7.00 to 7.59	Footage no. 2
10.	33 Lorraine Avenue (camera two)	8.06 to 9.12	Footage no. 3
11.	6 Carousel Street	9.24 to 10.55	Footage no. 4
12.	6 Carousel Street	10.56 to 11.18
13.	6 Carousel Street	11.19 to 12.17
14.	7 Janet Street	12.27 to 13.27

1. Notwithstanding the limitations of the material that they were provided, Dr Sorell and Professor Spring were able to give general evidence about CCTV and features that affect the quality of CCTV footage together with evidence about the limitations of this particular footage and the technical reasons for that.  It was not in dispute that both experts were well qualified to give this evidence by reason of their qualifications and experience.  There was a dispute about some of the evidence that was proposed to be lead from each.  I delivered a ruling on the objection that arose during Dr Sorell’s evidence.  My reasons for that ruling were as follows:[52]

   I have been asked to provide further reasons for a ruling that I made in this matter on Thursday, 28 November 2024.  The objection appears at pages 1444 to 1447 of the transcript.  The objection, made by Mr Culshaw and joined by the other defence counsel, related to evidence being given by Dr Sorell.  Dr Sorell is a witness called on the prosecution case to give expert evidence on the topic of his analysis of CCTV footage. 

   Dr Sorell gave general evidence about features that affect the quality of CCTV footage and the limitations of the footage in this particular matter.  The objection took place in the context where Dr Sorell had indicated his view as to what he saw on the screen and had been invited to draw a diagram that illustrated that evidence.  The objection was that this evidence was not given on the basis of some field of specialised knowledge but rather was couched in terms of what Dr Sorell saw on the footage.  It was contended that if there was something that his expertise placed him in a better position to comment on or explain footage than this ought to be explained but that otherwise this evidence was inadmissible as the content of the CCTV footage was ultimately a question to be determined by the trier of fact.  I upheld this objection. 

   A properly qualified expert can give evidence of their opinion on matters within their expertise.  Plainly, Dr Sorell has specialised knowledge by reason of his qualifications and experience.  It is equally likely that this specialised knowledge will be of assistance to me as the trier of fact in assessing the CCTV footage.  Evidence such as the limitations of the footage and the technical reasons for that are matters of relevance and expertise.  Ultimately as the High Court made plain in Smith v The Queen it is for me to assess the CCTV footage and draw conclusions from it bearing in mind the standard directions given as to expert evidence and weight to be given to such evidence. 

   Dr Sorell’s conclusions as to the number and location of people visible in the footage was not based upon his specialised knowledge of digital evidence and CCTV footage but rather upon his subjective observations.  In those circumstances, the evidence is plainly inadmissible.  It is similar to the exercise undertaken by the expert witness in Honeysett v The Queen.  Accordingly, I upheld the objection. 

   [Citations omitted]

   [52] R v Mitchell & Ors (Supreme Court of South Australia, McIntyre J, 2 December 2024).

2. A similar issue arose during Professor Spring’s evidence and, for the same reasons, I upheld the prosecution objection.[53]  The two experts are able to provide evidence as to technical issues relating to CCTV footage, the limitations of this footage, the artefacts that they observed and the effect of those.  I accept that evidence.  However, ultimately it is for me as the trier of fact, to assess the CCTV footage bearing in mind this evidence and the standard directions I have referred to concerning expert evidence.[54]  

   [53] T1588.

   [54] Smith v The Queen (2001) 206 CLR 650; Honeysett v The Queen (2014) 253 CLR 122.

3. Closed circuit television or CCTV in a home or domestic security system comprises of a centralised recorder and one or more cameras.  It may be connected to the internet but does not have to be.  Typically, the cameras are digital and deliver footage via a computer connection directed to the recorder.  The recorder may either record each camera continuously or it may record a camera when it is activated – for example, as it detects movement.  The footage is coded either at the camera, at the recorder, or in both.  The digital coding starts with a clean reference frame.  The next frame is essentially a record of differences from the previous frame.  The CCTV cameras in this matter were in a fixed position.  The background does not alter, albeit that there might be some tree movement or changes in lighting and shadow.  The main focus of the coding is to identify differences from the previous frame such as movement of objects or people. 

4. The experts explained that compression algorithms are commonly used in software to make the files smaller for storage purposes.  A type of compression that is commonly used is ‘Lossy Compression’ which Professor Spring described, in simple terms, as discarding information that does not appear relevant.  This will compress the files, but it means that information originally captured by the device is lost forever. 

5. Variation in the quality of CCTV output can occur due to the hardware, variations in software, the way in which the system is configured, system maintenance and the camera optics.  Other factors include the distance between a moving object and the camera and whether the camera is recording in daytime or nighttime conditions. 

6. Professor Spring described the footage in this matter as typical of most domestic CCTV systems that consumers buy to watch their backyard, driveway or front of house.  It did not appear to comprise high end equipment, and the resolution was not very high.  He said, and Dr Sorell agreed, that factors such as poor maintenance, dust and dirt on a lens or sensor, heat particularly within the sensor, can cause visual distortions or anomalies that affect the quality of the image or images.  Both experts described much of the footage as poor and said that it could not be used to identify people visible in it.  I agree with that assessment noting that some footage was better than others and noting further that the prosecution relies on the footage for other purposes which I will deal with shortly.

7. There were some issues during the trial concerning the display of the footage in the court room.  These were resolved satisfactorily by relocating to another court room for Dr Sorell’s evidence but, regrettably, this was not possible during Professor Spring’s evidence.  It did not, however, adversely impact his ability to give evidence about the relevant footage and his observations.[55]  I bear in mind the evidence that both experts gave and that the quality of the equipment used to view the footage will have a bearing on what can be discerned in the footage.  In addition to viewing the material in court, I have viewed it outside court. 

   [55] T1577–1578.

8. Neither expert was familiar with the area in which the footage was taken and, as I have observed, neither was provided with details of the ambient lighting or distances between relevant points.  The footage was taken at night using infrared; a colour wavelength that is beyond the visible spectrum.  The field of lighting from the infrared camera is typically limited to a few metres so that anything in the background is dependent on ambient light such as moonlight or streetlights.  The consequence of this is that objects that are moving in the footage are very low contrast compared to the background.  The second consequence is that the camera has to capture the light over a longer period of time up to 1/25th of a second.  This can cause what the experts described as ghosting or streaking.  It can be challenging to determine what is real and what is the ghosting effect.  Further, in low light conditions, the camera will pick up what the experts described as thermal noise.  The computer algorithm that compresses the video may not be able to distinguish movement in the background masked by thermal noise and, as a consequence, an object that is moving may disappear because the algorithm decides it is noise rather than something it needs to code.  This was described as a strobing effect where an object disappears and reappears because it falls below the threshold of coding.  Both experts described these issues as present in aspects of the CCTV footage that they viewed. 

9. In summary, the matters that the experts identified in the four segments of CCTV footage were:

   ·The illumination area of the infrared lighting in each location made it easier to see objects in the foreground than out on the street. 

   ·Complex ambient lighting. (noting that neither expert was provided with information about this). 

   ·Streaking or ghosting effects. 

   ·Thermal noise effects where moving objects were masked. 

   ·The strobing effect was an issue in particularly in footage 7 (or footage 1 using the experts’ description) where it appears that a person moved across the street, disappeared momentarily and then reappeared. 

   ·Pixelation and low resolution.

10. Both experts agreed that these artefacts are significant limitations on the CCTV footage in this case.  The main area of dispute between the experts related to footage taken from two cameras outside 33 Lorraine Avenue.  Dr Sorell described this footage as sufficiently long and “relatively unambiguous” in terms of discerning the number of individuals in the footage.  Whilst he considered poor lighting to be an issue, he did not consider that there was any strobing or streaking present and he detected only limited thermal noise.  He did not consider that there was a significant difference between the footage obtained from either of the two cameras at that address.  Professor Spring, whilst accepting that this footage was the best of the footage obtained by the police, did not initially agree that the two cameras were similar in terms of identifying the number of people.  Professor Spring called the footage from the first camera at 33 Lorraine Avenue “footage 2” and the footage from the second camera as “footage 3”.[56]  It appears that in his report he described footage 3 as “the only limited reliable vision for identifying the number of individuals”.[57]  Professor Spring was cross-examined about footage 2 as follows:[58]

    [56] In the table reproduced above, Professor Spring’s footage 2 is footage 9 and footage 3 is footage 10. 

    [57] T1616.

    [58] T1617–1618.

    QOkay, just pausing there.  Do you agree that this footage is of similar, if not the same, visual quality as footage 3 that we've just watched.

    AYes.  It's similar, yes.

    QDo you agree that the pace of the individuals in that footage appears to be similar or the same to the pace that we can see in footage 3.

    AOffhand I would say it's similar without doing a comparison now. But it would be similar I think.

    QDo you agree that there's the same or similar effect in terms of the camera light focusing on the front yard in the forefront of the video clip. 

    QActually on my screen, which I'm now looking at on my it's identical to what you're seeing, it's a bit better. What you're seeing is not quite as good as what I'm seeing.  But yes, the light is reaching, and I think we discussed this before, the centre portion of the yard is lit probably from the centre of the infrared light and it's going off onto the side. 

    QDo you also agree that there appears to be a lack of other interfering light or shadows from across the road in the background. 

    AYes.  

    QDo you also agree, if I haven't already asked this - I think I did ask it, my apologies - the same or similar relevant closeness between the figures moving and the subject camera.

    AMore or less.  I think the other camera has the better angle.  This one on No.2 that we're looking at right now, although not bad, does appear to have some ghosting in it and the ghosting it's there but, again, how much is the ghosting, how much might be real is the question.

    QIf I suggest to you for all the reasons that we've just characterised that there is still sufficient illumination to see the movement of figures on that footpath, would you agree with that.  

    AI would agree with that, yes.

    QYou would. 

    AYes. 

    QSo do you agree that this is of same or similar quality to the footage 3.

    AI think footage 3 is a bit better than this, but only a bit.

    QI suggest, based on the answer that I've already put to you several times, this one isn't as good as the other one, that you're implying that this one is actually better than footage 3; what do you say about that.

    ANo, no, footage 3 is better than this one.  This particular image, now that I'm looking at it on my screen which I can actually see a bit better than yours, does show some ghosting of the movement.  Now, ghosting, just because - we're looking one way and we see one thing, we look another way we see something else, the conditions under which that's done can actually create its own artefacts, they're small.  So when I looked at this originally there was some ghosting in this No.2 and I saw less ghosting in No.3.

    QWith that qualifier you agree, however, with my proposition that the overall visual quality of this footage is the same or similar to footage 3. 

    AI think it's slightly less.  Less quality in the dark areas that where in footage No.2, we're looking kind of in one direction off to the left and the darkness in the background is darker, meaning it's probably a little less lit than the other one from the illumination of the infrared.  That in that dark area is creating some ghosting more than the one in video No.3 which the background is similar but not exactly the same, and plus, noise can look different in two different angles and two different cameras, or two different angles and two different light sources.  So I'd still say 3 is the best.  2 has got a little bit of, I think, some ghosting in it which, you know, can be sort of pointed out or looked at, and I'm sure you'll look at it again and try to count the number of people, or whatever one is going to do.  Just be aware that some of the image that's in there actually does seem to mimic a bit, which means that it could be ghosting.

1. This was a discussion about the police investigation into Mr Gjabri’s death and Carver’s involvement in the cannabis theft.  Carver’s comments show a familiarity with the crime scene and, in particular, the seedlings having been left behind. 

2. The next call is the call between Carver and Rigney on 18 October 2018.  Rigney was using his partner, Ms Karpany’s, phone.  I accept the prosecution submission that this call relates to the white Holden Commodore.  Carver in this call references his earlier call with Mr Woolger when he says “yeah, nah’s all good anyway, they’re oi, they’re thinking it’s bikies”.  Rigney agreed that was good but told him not to say anymore.  In context, it is clear that they were discussing the theft at Para Vista.

3. The last call is between Carver and a man I accept is JPH on 18 October 2018.  I accept JPH’s reference to “Matt” is a reference to Tenhoopen.  The call demonstrates that Carver is interested to know what JPH was doing in the aftermath of Mr Gjabri’s death.

   The case against Rigney

4. The prosecution case against Rigney consists of a number of items of evidence in addition to those that relate to all four defendants and the phone contact between Rigney and Carver prior to the theft.  One of these is the evidence of a witness in Gilbert Street, Ingle Farm to hearing a man with an Aboriginal accent which the prosecution contends is Rigney.  There is no evidence as to what constitutes an Aboriginal accent or that Rigney has such an accent.  I reject that aspect of the prosecution case but note that Rigney does not deny being in Gilbert Street. 

   Intercepted phone call with Carver

5. I have accepted that the other person in the intercepted phone call with Carver on 18 October 2018 was Rigney and that they were discussing the theft of cannabis.  Rigney tells Carver two things in that call.  First to keep quiet about the theft and to ensure that others also keep quiet.  Second, he is asking Carver about disposal of the Holden Commodore. 

   Holden Commodore

6. Most of this evidence is contained in agreed facts.[291]  Rigney purchased the Commodore in September or October 2018.  On the day of the theft, 8 October 2018, he took steps to have the car registered in the name of Carver’s sister, Melanie Hammond.  As he discussed with Carver in the intercepted phone call on 18 October 2018, Rigney was exploring the options for disposing of the Commodore.  The car was disposed of on 24 October 2018. 

   [291] Exhibit P22.

7. Rigney concedes that he drove the Commodore the Para Vista on the night of the theft and that it was part of the cannabis reloading in Gilbert Street, Ingle Farm.  The question is why he acted in the way that he did in relation to the car and in particular whether he disposed of it because of a consciousness of guilt or as part of an effort to distance himself from the death of Mr Gjabri.  I find that the disposal of the car is evidence of consciousness of guilt on the part of Rigney, in respect of the theft of cannabis.  It is, however, equally consistent with a desire to escape an unfair accusation of involvement in Mr Gjabri’s death in circumstances where Rigney was involved in a plan to steal cannabis but not to cause harm to Mr Gjabri as with involvement in his death.

   Mr Gjabri’s mobile telephone

8. Ms Karpany’s evidence was read onto the transcript to the effect that when she cleaned out the Holden Commodore prior to its sale, she found an Apple iPhone in the back seat.  There is no dispute that this is Mr Gjabri’s phone.[292]  Jeremy Byers gave evidence[293] that, by examining the extracted information from that phone together with the records for the Gjabri phone service, he was able to say that the same phone was using that service number in 2018. 

   [292] Exhibit P85.

   [293] T1320.

   DNA on the steering wheel of Mr Gjabri’s Mazda

9. The DNA results from the swab of the steering wheel of Mr Gjabri’s Mazda provided very strong support for the proposition that Rigney was a contributor to the mixed DNA profile that was obtained.  I accept that he was.  The evidence does not establish how Rigney’s DNA came to be on the steering wheel whether by driving the car, or by secondary or even tertiary transfer.  In a sense it does not matter if he did not drive the car.  The evidence establishes that he was involved in the theft of cannabis from Carousel Street.

   The case against Tenhoopen

10. In addition to the evidence that is relevant to all defendants, the trip to Queensland and the evidence of Ms Carson and Ms McCormack, the prosecution relies on other evidence in the circumstantial case against Tenhoopen. 

    Mr W

11. Mr W shared a cell with Tenhoopen in December 2018 and says that Tenhoopen told him a number of things that the prosecution contends are admissions.  If I accept that this is the case, these are only admissible as against Tenhoopen.  It is important in this context to consider whether Mr W is a credible and reliable witness.  I will also need to consider whether anything I find Tenhoopen said to Mr W are in fact admissions to the charged offending or whether there is another explanation for those comments.  

12. If I accept Mr W’s evidence about what he was told by Tenhoopen, it can be summarised as follows:

    ·Tenhoopen, Carver, Rigney, JPH and “some Ben fella” targeted the house to steal cannabis.[294]

    [294] T1112.

    ·They tried to kick the door in but failed, then smashing a window which was covered by tin assumed to be used to block light and entered through the window.[295]

    ·They took an axe with them.[296]

    ·They found the occupant to the house attempting to make a phone call, there was a struggle in a doorway and the occupant was struck on the head.[297] Tenhoopen did not tell him who hit the man or what was used to hit the man. 

    ·After being struck on the head the occupant was then taken to another room and members of the group took turns watching him whilst the others collected the drugs.[298]

    ·They took what was believed to be all the cannabis from the house, wrapping the plants in blankets and quilt covers.[299]

    ·They used a small black car that was in the garage to transport the stolen cannabis and later transferred it to another car.[300]

    ·A neighbour came outside in response to the noise whilst they were transferring the cannabis; Tenhoopen told him that wherever they took that car to reload the dope, someone came out the front to say get away and they told the man to “get back in the house” or “it was none of your business”.[301] 

    ·Upon all the media coverage they “freaked out” and decided to leave SA and go to Queensland, later returning to Adelaide by plane.

    ·Mr W also said that he commented to Tenhoopen that after watching a TV report, that “you left heaps there” to which Tenhoopen responded, “no, they were young plants”.[302] 

    ·Mr W also recalled Tenhoopen saying the occupant’s state when the group left being described as both “[not looking] in a very good way” and “like a dog that had been hit by a car…with his eyes rolling in his head”.[303] 

    [295] T1113.

    [296] T1113.

    [297] T1113–1114.

    [298] T1114–1115.

    [299] T1115.

    [300] T1116.

    [301] T1116.

    [302]  T1115.

    [303]  T1117–1118.

13. Mr W gave his evidence in a straightforward manner.  He did not shy away from his somewhat extensive criminal history.[304]  Mr W denied making up the account given to him by Tenhoopen because he had a sentencing matter coming up.  There is no evidence that he was offered any reward for his evidence. 

    [304]  Exhibit P95.

14. There were some aspects of Mr W’s evidence that do not accord with the evidence that I accept.  This includes the evidence he gave that Tenhoopen told him that they gained entry through a smashed window rather than a door and evidence that a Mercedes Benz pulled up at some stage during the theft.  The agreed facts indicate that no Mercedes looking vehicle was detected on CCTV footage in the area on 8 or 9 October 2018. 

15. As with Ms McCormack and Ms Carson, it is possible that Mr W was accurately relaying what he was told by Tenhoopen but, equally, it is possible he is mistaken.  I reject the possibility of fabrication.  Many matters about which Mr W gave evidence were matters that were independently established by the evidence about the crime scene and was information that Mr W could only have obtained from Tenhoopen.  This includes the detail about the young cannabis plants having been left behind.  The text of news reports contained in the media released exhibit[305] makes reference to cannabis crop being stolen but no reference to cannabis seedlings having been left behind.  Likewise, the information about a struggle with the man at a doorway who was subsequently taken to another room was not contained in any media release but is consistent with the evidence of the damage to the door between the kitchen and the laundry and the evidence from the lounge room.  The information about taking the small black car and then later transferring the cannabis could have been discerned from media releases but the detail of a neighbour coming out whilst they were transferring the cannabis is not contained in any of the SAPOL media releases.  Finally, the description of Mr Gjabri when they left the premises is consistent with the medical evidence that he was badly injured, but not dead, but is not a detail revealed in any of the SAPOL media releases. 

    [305]  Exhibit P57.

16. Finally, I note that there is a significant similarity between the evidence of Mr W and the evidence of Ms McCormack and Ms Carson about what they were told by Tenhoopen.  There is no suggestion that Mr W knew either of the two women.  I accept that the account of Mr W is truthful and reliable.

17. Several of the statements made by Tenhoopen to Mr W demonstrated his involvement in the theft of cannabis.  The statements concerning the struggle at the doorway, the occupant being hit over the head and to the state of the occupant are admissions to the use of violence to carry out the theft.

    The listening device

18. A listening device was installed in Tenhoopen’s bedroom and in the rear shed.  I have admitted that evidence.  The information reveals a running dialogue between Tenhoopen and Ms McCormack and occasionally some others.  On 23 October 2018, there is a discussion about a recent police search of Tenhoopen’s bedroom and the police taking some of his clothes; Tenhoopen refers to his undergoing a forensic procedure in relation to being a suspect for murder.  Tenhoopen then said, “oh well, shit happens hey.  Sometimes you have to go in and fucking, hurt someone too much”.  Defence submitted that the phrase was ambiguous and open to multiple interpretations. It was argued that the prosecution had failed to establish a clear connection between the remark and the alleged offending, and that the phrase could not be construed as an admission of guilt.  I do not accept this submission.  In context it is plainly a reference to the events on the night of the cannabis theft and an admission to Mr Gjabri being hurt. 

19. Later in the recording, Tenhoopen remonstrates with Ms McCormack about what she told the police and of her showing photographs of the cannabis in his shed.  Tenhoopen then says:

    I’d gotten rid of that weed days beforehand.  Fuck. Fuck.  Ah, I didn’t have scales or nothing here bro, it’s all gone they didn’t even know I stole weed bro they didn’t even know [inaudible]. They [inaudible] they swept the back yard and didn’t even find any of the weed.  

20. I accept that this constitutes an admission to involvement in the theft of cannabis.

    Connections with Carver

21. I have already referred to the fact of Tenhoopen’s fingerprints on the box of gloves at Carver’s house and the location of the bud stripper at Tenhoopen’s house.  Both of these findings connect Carver and Tenhoopen with each other and with the cannabis. 

    The cannabis remnants

22. The evidence of Ms McCormack, Ms Carson and Ms Cheer, supported by the photographs on Ms McCormack’s phone and the text messages between Tenhoopen and Mr Hall, supports a finding that Tenhoopen had large amounts of wet cannabis in his possession shortly after the events at Carousel Street. 

23. Police found various cannabis remnants at Tenhoopen’s house and particularly in the shed.  There were also some indications that there was an attempt to clean the area including cannabis remnants in the bristles of a broom.  I infer that Tenhoopen had, as he says in the listening device evidence, disposed of the stolen cannabis and attempted to cover his tracks.

    The case against Mitchell

    Evidence given at last trial

24. Mitchell’s evidence that he, Tenhoopen, Carver, Ms McCormack and Ms Carson were all in Tenhoopen’s bedroom before going to the shed was denied by both Ms McCormack and Ms Carson.  I accept their evidence which is supported by the text messages on Ms McCormack’s phone in particular the message that Tenhoopen sent to Ms McCormack in response to her text message at around 8:27 pm saying she was 10 minutes away telling her to “come straight to the shed”.  

25. I accept that Mitchell has a hearing impairment and that there may have been loud music in the shed and in the car trip to Adelaide on the night of the theft.  I also accept that he may not have heard casual conversation about the theft in either the shed or the car.  However, the evidence of Ms McCormack and Ms Carson, which I accept, is that Tenhoopen and Mitchell had a conversation which included details about the theft such as Carver’s involvement and the need to wear dark clothing. 

26. Mitchell’s evidence is that he did not ask a single question of any of the others about anything.  I consider this evidence to be improbable at best.  On the night of the theft, he did not question the reason for trip to Adelaide, ask why Carver and JPH were to be picked up, query where they were going, or how long it was going to take either at Tenhoopen’s place or on the lengthy drive to Para Vista.  When they got to Para Vista, a suburb he did not know, he did not ask where the others were going, what they were going to do and for how long.  He just sat in the car.  After two of them returned, on his version, he unquestioningly drove where he was told to go only protesting when he realised that they were putting cannabis in his car.  He did not ask where the cannabis came from, what they intended to do with it after it was put in his car, who the other person (Rigney) was and where the other two cars came from.  At no stage after the theft did Mitchell ask any questions about the events of that night.  These events were significantly different to the other occasions he had driven Tenhoopen to Adelaide.  His complete lack of enquiry cannot be explained by his use of methamphetamine that night.  Mitchell further said that he agreed to go to Queensland with Carver and Tenhoopen without asking any questions and implied that he accepted that the trip had nothing to do with the cannabis.  He drove them for three days during which time he says they did not discuss the cannabis or the night of the theft.  When Carver told him to “google Para Vista” he did not ask any questions even after his google search indicated that there had been a murder in connection with cannabis.

27. I reject Mitchell’s evidence given at the last trial as implausible.  In those circumstances, I set his evidence aside and I will consider the prosecution case against him. 

28. The prosecution relies on the evidence relevant to all of the defendants together with the trip to Queensland and the evidence of Ms Carson and Ms McCormack, together with some additional matters concerning Mitchell to establish beyond reasonable doubt that Mitchell was part of the plan to steal cannabis from 17 Carousel Street.  

    The DNA evidence on the secateurs

29. As outlined above, the DNA sample taken from the secateurs was contaminated by Brevet Sergeant Buller.  I accept Dr Handt’s evidence that this did not adversely affect the results that she obtained for the other contributors.  The statistical weighting in favour of the proposition that Mitchell, Mr Gjabri and three unknown people contributed to the DNA profile was 23,000.  Dr Handt described this as “very strong support” for the proposition that Mitchell is a contributor to this mixed DNA profile rather than him not contributing to the profile.[306]  The other defendants are excluded as contributors. 

    [306]  T1027.

30. I accept Dr Handt’s evidence that she would not have assumed that Mr Gjabri’s DNA was on the secateurs if he was excluded as a contributor.  The assumption was presumably made because the secateurs were located at his premises.  The secateurs are a portable item.  Dr Handt’s evidence was that removing that assumption would result in a different statistical weighting in relation to the hypothesis that Mitchell and four unknown people contributed to the DNA profile.  No further calculation was requested or provided in relation to the secateurs unlike the knife.  Her evidence was that removing the assumption that Mr Gjabri was a contributor increases the number of combinations and will yield a different result.  Sometimes, but not always, the removal of the assumption yields a more conservative result as was the case in the reanalysis of the knife where the statistical weighting in favour of Carver as a contributor increased from 160 million to 520 million.  Whilst there is some uncertainty about the statistical weighting if the assumption that Mr Gjabri was a contributor to the DNA profile is removed, I accept that the assumption was valid.  Accordingly, there is “very strong support” for the proposition that Mitchell is a contributor to this mixed DNA profile.

31. Mitchell contends that, if it is accepted that his DNA is on the secateurs, it is not possible to rule out the possibility of secondary or tertiary transfer of his DNA in innocuous circumstances.  It is said that the secateurs could have been brought to 17 Carousel Street in Mitchell’s car by one of the others and his DNA could have been transferred as a result of being in his car for the lengthy drive from Murray Bridge to Para Vista or by one of his co-offenders either in the car or subsequently.

32. I was referred to Fitzgerald v The Queen[307] (‘Fitzgerald’) in which the Full Court of the High Court considered DNA evidence in similar circumstances to the present.  In that case the prosecution relied on the presence of the defendant’s DNA on a didgeridoo found at the crime scene to establish that he was one of a group that forced entry to a house to attack the occupants which resulted in the death of one and serious harm to another.  The High Court referred to the forensic evidence and found that there were, on the evidence, two distinct occasions on which secondary transfer of the defendant’s DNA to the didgeridoo may have occurred and that the recovery of his DNA from the didgeridoo did not raise any inference as to when and in what circumstances the transfer occurred.  The Full Court concluded that:[308]

    For those reasons, it could not be accepted that the evidence relied on by the prosecution was sufficient to establish beyond reasonable doubt that the appellant was present at, and participated in, the attack. The jury, acting reasonably, should have entertained a reasonable doubt as to the appellant’s guilt. Alternative hypotheses consistent with the appellant’s innocence, in particular the hypothesis that Sumner transferred the appellant’s DNA to the didgeridoo on Sumner’s first visit to the house on the day in question, were not unreasonable and the prosecution had not successfully excluded them.  

    [307] (2014) 311 ALR 158.

    [308] Ibid at [36].

33. There was no dispute between the parties in Fitzgerald that that it was an essential link in the prosecution’s case that the defendant’s DNA was transferred to the digeridoo during the attack and that this link was required to be proved beyond reasonable doubt.  It was the only evidence linking the defendant with the offending.  That is not the case in this matter.  The DNA evidence is but one aspect of the circumstantial prosecution case as against Mitchell.  In those circumstances it is not necessary for the prosecution to prove the presence of Micthell’s DNA on the secateurs occurred as a result of him using them in the theft of the cannabis beyond reasonable doubt. 

1. Dr Handt conceded that the hypotheses put to her on behalf of Mitchell concerning secondary or tertiary transfer of his DNA to the secateurs were possible but not necessarily probable.  She explained that, for her, the term “probable” means that there is strong support for the proposition as opposed to conceding that something was merely possible.  It not necessary to exclude hypotheses consistent with innocence given it is not necessary that this aspect of the evidence be proven beyond reasonable doubt.  I consider that, whilst possible, the alternative propositions are not likely.  Mitchell said in his evidence that no one in the car was wearing gloves as he drove them from Murray Bridge.  It seems likely that the black gloves used in the theft were the Raven branded nitrile gloves purchased by Mr Gjabri and subsequently located at Carver’s premises.  Carver, JPH and Tenhoopen were not contributors to the DNA that was on the secateurs.  This suggests that the secateurs were not in the vehicle on the trip to Adelaide.  Likewise, the fact that Mr Gjabri was not excluded as a contributor and the fact that 17 Carousel Street was set up as a grow house with the usual items required to grow cannabis plants makes it more likely that the secateurs were at the house rather than transported from Murray Bridge.  The alternative hypothesis, that one of the other defendants transferred Mitchell’s DNA to the secateurs located in the house, is also unlikely due to the fact that none of the other defendants were found to have contributed to the DNA profile and the fact that the gloves used at the grow house were likely taken opportunistically at the scene rather than transported or worn in Mitchell’s car. 

   The lies told to police – consciousness of guilt

2. The statements made by Mitchell to the police are set out above.  On the prosecution case, Mitchell's denial that he knew where Ingle Farm was and his statements that neither he nor his phone had ever been to Para Vista, are demonstrable lies.  It is also contended that Mitchell lied about the name of the man who had been in his car on the trip to Queensland.  The prosecution says that there was never a person called “Lutz” and that the other person in the vehicle was in fact Tenhoopen.  The prosecution says that these lies, initially told to Detective Sergeant Ward, do more than just undermine Mitchell’s credibility; they are material lies told out of a consciousness of guilt.  They were said to be material because they go to the key issues in the case against Mitchell – namely, whether he was involved in the cannabis theft plan and whether he was at the crime scene house.  It is said that the asserted lies demonstrate a consciousness of guilt, in the sense that Mitchell knew that if he told the truth about going there and entering the house, he would be implicated in the theft and the murder of Mr Gjabri.[309]

   [309] T1692.

3. I can only use these alleged lies in this way if I accept number of things.  First, that Mitchell made the statements alleged by the prosecution.  Second, that the statements were false. Third, that Mitchell made the statements knowing that they were false.  Fourth, that any lie I find proven was about an important issue connected with the alleged offence and fifth, that Mitchell told the lie because he knew that telling the truth would help show he had committed the offence charged.  In other words, I must rule out the possibility that Mitchell told the lie for some other reason, such as panic, to escape an unfair accusation and, in respect of the “Lutz” statement, to protect Tenhoopen.

4. I can only use a lie as evidence of guilt if I accept that these five requirements have been met.  If the requirements are not met, I can only use a lie by Mitchell when I am considering his credibility.  I must take into account that people might lie for all sorts of reasons. I cannot conclude Mitchell is guilty simply because I find that he told a lie.

5. I have considered each of the matters asserted to be lies.  I accept that Mitchell lied, knowing that he was lying, when he told police that:

   ·He had a call from Carver and went to visit him at Swanport Road, Murray Bridge on the night of the theft.

   ·He did not know where Ingle Farm was.

   ·Neither he nor his phone had been in Para Vista. 

   ·He did not drive his Subaru WRX at Para Vista late on 8 October 2018 or early 9 October 2018.

   ·He had a man called “Lutz” in the car when he drove to Queensland.

6. Mitchell did not deny making these statements and agreed that he lied for the reasons he explained.  The only matter he did not concede was that he lied when he said he was not with Carver at a home invasion at Para Vista on 8 or 9 October 2018 where a man was killed.  If the prosecution has proven that Mitchell participated in the theft of cannabis at Para Vista, then this too is a deliberate lie.  I am satisfied that this was a deliberate lie. 

7. All of the statements are lies about important matters associated with the theft of cannabis.  Mitchell says that he did not want to be wrongfully implicated knowing that he was “not involved” in any way.  I reject this.  I consider that the lies demonstrate a consciousness of guilt at least in relation to the cannabis theft.

   The location of cannabis by Queensland Police in his Subaru.

8. 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?

9. I find beyond reasonable doubt that there was a plan between all four defendants and JPH to steal Mr Gjabri’s cannabis. 

10. 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. 

11. 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.

12. 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. 

13. 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. 

14. 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.  

15. Carver, Tenhoopen, Mitchell and JPH travelled some distance from Murray Bridge to Para Vista.  Carver liaised with Rigney.  All five converged near Carousel Street within minutes of each other.  Each vehicle drove past the premises before parking in a nearby street.  I infer that they were checking the premises before embarking on their planned activities.  None of this was a coincidence.  It was part of a plan between the five of them. 

16. The general circumstances suggest a forceful approach to the theft of the cannabis.  There were five of them.  They did not gain entry to the house in a surreptitious or stealthy manner – they used body force to break through the front door.  They used a similar approach to the rear door exit.  Whilst the defendants may have hoped that there was no one at the house they must have been alert to the possibility that someone might be present.  Cannabis is a valuable commodity.  It is common for someone to reside at a grow house in order to safeguard the crop.  The likelihood that there was someone at the house was reinforced by the fact the presence of Mr Gjabri’s car was obvious in the driveway. 

17. The defendants walked a circuitous route from the location where they parked their cars to 17 Carousel Street.  It took them approximately 25 minutes.  It is inconceivable that they did not discuss their plans, including what to do with any occupant of the grow house, during that walk.  The defendants must have contemplated that anyone in the house would resist their efforts to take the cannabis and might also call for backup.  I find beyond reasonable doubt that the agreement to steal the cannabis involved an agreement to use force against any occupant in order to carry out the theft.  I note the submissions that I could not find beyond reasonable doubt that Rigney and Mitchell entered the house.  It is not necessary for me to do so as long as I am satisfied that they were each party to that plan.  I am satisfied that each defendant was a party to, and participated in, the planned robbery of cannabis. 

    Pathways to conviction for murder

18. I now turn to consider the two pathways to conviction for murder.  Mr Gjabri’s death was caused by one or more severe blows to the head with a weapon.  The blows inflicted upon Mr Gjabri were deliberate, voluntary and unlawful.  The blow or blows to his head were severe and caused his death.  The weapon has never been found. 

19. I have found that footage 10 from 33 Lorraine Avenue shows one of the defendants, or JPH, walking on the footpath carrying a long pole like object shortly before they gained entry to the house.  All of the co-offenders are in close proximity to each other.  The presence of that object was obvious to all of them.  The item was not used to effect entry or exit.  Unlike the secateurs or the knife, it is not the type of item that could be used to harvest the cannabis.  The injuries that caused Mr Gjabri’s death are consistent with the use of an item such as that visible in the footage.  No item resembling the item in the footage was located by police either at 17 Carousel Street or in nearby streets.  It was, I infer, taken away and disposed of.  There would be no reason to dispose of the item if it was not used in some manner.  I find that the item visible in the 33 Lorraine Avenue footage was the weapon that inflicted the fatal injuries on Mr Gjabri. 

20. I am satisfied beyond reasonable doubt that the plan between Carver, Mitchell, Tenhoopen, Rigney and JPH to rob Mr Gjabri of his cannabis plants included the possible use of the weapon to assault any occupant of 17 Carousel Street. 

21. Murder contrary to s 11 of the CLCA by extended joint criminal enterprise requires the foresight by each defendant that one of their number might, with murderous intent, inflict GBH or death. I am satisfied that the plan between Carver, Mitchell, Tenhoopen, Rigney and JPH to rob Mr Gjabri of his cannabis plants included the possible use of the weapon to assault any occupant of 17 Carousel Street. In relation to Tenhoopen and Carver, there is cogent evidence that they were both shocked and distressed when they found out about Mr Gjabri’s death. I do not have any evidence about Mitchell or Rigney’s state of mind on finding out about the death. I do, however, accept the submission that it was unnecessary and indeed counterproductive for the defendants to kill or inflict serious harm to any occupant of the house in order to steal the cannabis. I cannot be satisfied that the defendants contemplated that one or more of their number might use a weapon to assault Mr Gjabri with the intention of causing him death or GBH. In those circumstances I acquit the defendants of murder by extended joint criminal enterprise.

22. The robbery was a major indictable offence as defined in s 12A of the CLCA. I am satisfied that hitting Mr Gjabri forcefully over the head with a weapon on one or more occasions caused his death. I am further satisfied that it was an intentional act of violence that occurred during the course, or in furtherance, of the robbery. I am satisfied that whoever inflicted the fatal blow or blows is guilty of constructive murder under s 12A of the CLCA. The identity of the offender or offenders who inflicted the fatal blow or blows has not been established on the evidence. The defendants can only be convicted of murder under s 12A as secondary offenders if the prosecution has proven beyond reasonable doubt that, as part of their agreement to commit the robbery, each of the defendants agreed to an intentional act of violence of the same general nature as that which caused Mr Gjabri’s death. As outlined above, I am satisfied that the planned robbery included an agreement, if necessary, to assault any occupant of the grow house with the weapon I find that the defendants took with them. An assault with the weapon is an intentional act of violence of the same general nature as that which killed Mr Gjabri. Accordingly, I am satisfied that each of the defendants is guilty of murder under the pathway provided by s 12A of the CLCA. In those circumstances it is not necessary for me to consider manslaughter.