R v Ross (No. 4)

[2020] NSWDC 197

District Court

New South Wales

Medium Neutral Citation:	R v Ross (No. 4) [2020] NSWDC 197
Hearing dates:	27 April – 1 May, 4-5 May 2020
Date of orders:	12 May 2020
Decision date:	12 May 2020
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraphs 293-295
Catchwords:	CRIMINAL LAW – gang assault on victim – victim suffers stab wound by one assailant – accused’s reliance upon alibi evidence – whether Crown disproved alibi evidence – joint enterprise liability – whether agreement to inflict grievous bodily harm – whether accused foresaw possibility of wounding
Legislation Cited:	Crimes Act 1900 (NSW), ss 4, 33, 35, 59 Criminal Procedure Act 1986 (NSW), ss 131, 133 Evidence Act 1995 (NSW), ss 87, 116
Cases Cited:	Blackwell v R (2011) 81 NSWLR 119 Clayton v The Queen (2006) 168 A Crim R 174 De Silva v The Queen [2019] HCA 48 Fleming v The Queen (1998) 197 CLR 250 GBB v R [2019] NSWCCA 296 Gillard v The Queen (2003) 219 CLR 1 Huynh v The Queen [2013] HCA 6 IL v The Queen (2017) 260 A Crim R 101; [2017] HCA 27 McAuliffe v The Queen (1995) 183 CLR 108 McKey v R [2012] NSWCCA 1 Miller v The Queen (2016) 259 CLR 380 R v Nguyen [2001] VSCA 1 R v Smith (1837) 8 C & P 173 R v Winner (1995) 79 A Crim R 528 Swan v R [2016] NSWCCA 79 Youkhana v R (2015) 249 A Crim R 424
Category:	Principal judgment
Parties:	Director of Public Prosecutions Mr DM Ross
Representation:	Counsel: Mr K Gilson for the Director of Public Prosecutions Mr J O’Sullivan for the accused   Solicitors: Solicitor for the Director of Public Prosecutions Conditsis Lawyers for the accused
File Number(s):	2018/148887
Publication restriction:	Nil

Judgment

BACKGROUND

1. On the afternoon of 19 April 2018, Mr David Monro (‘Monro’) was the victim of a violent assault by a group of men in and/or about a residential (motel-style) facility called ‘Strathavon’ in Boyce Avenue, Wyong. Droplets of his blood were located inside and outside those premises. It was uncontroversial that in the course of the assault, and amongst his other injuries, Monro was wounded by being stabbed on his lower right side.

2. The accused, Mr Daniel Michael Ross, is charged with 3 counts on an indictment. They are that on 19 April 2018, in Wyong in the State of New South Wales:

• as to Count 1, he wounded the victim, David Monro, with intent to cause him grievous bodily harm, contrary to s 33(1)(a) of the Crimes Act1900 (NSW) (the ‘Act’);

• in the alternative to Count 1, Count 2, in the company of Kirk Micallef and Shannon Hodder, he recklessly wounded David Monro, contrary to s 35(3) of the Act; and

• further in the alternative, Count 3, in the company of Kirk Micallef and Shannon Hodder, he assaulted David Monro, contrary to s 59(2) of the Act.

3. This was a trial by judge alone. Section 133(1) of the Criminal Procedure Act1986 (NSW) relevantly provides that I may make any “finding” that could have been made by a jury on the question of the accused’s guilt – that is, whether the accused is guilty or not guilty on the subject counts. I am required to state the principles of law I have applied and the findings of fact on which I have relied (s 133(2)). Section 133 does not, however, require me to state all the matters which necessarily would have had to be stated to a jury, or even all of the matters I have taken into account in determining the question of guilt [1] . To the extent that the law would have required a warning to a jury in any such case, I am required to take the warning into account in dealing with the matter (s 133(3)). The relevant principles to be applied – and particularly those pertaining to how mandatory warnings are to be taken into account – are those referred to in Fleming v The Queen (1998) 197 CLR 250. What needs to be taken into account is the subject matter of any warning and the particular reasons why a particular matter may be unreliable; and once the source of unreliability has been identified, consideration needs to be given to the weight accorded to the evidence[2] .

PRINCIPLES OF LAW

1. R v Winner (1995) 79 A Crim R 528.

2. GBB v R [2019] NSWCCA 296 at [33].

General Directions

4. Sitting alone, it is pertinent to remind myself of the following general matters which, if there was a jury, would have been the subject of direction by me to the jury.

5. As the accused has pleaded that he is "not guilty" to all counts and elected trial by Judge alone, it becomes my duty and responsibility to consider whether the accused is "guilty" or "not guilty" of these charges and to return my verdicts according to the evidence that I have heard.

6. The Court notes that the evidence relating to each count may be different and the Court in considering each count is only to consider the evidence admissible on each count.

7. I have heard and received final submissions from the Crown and Mr O’Sullivan of Counsel for the accused. I will consider the submissions that have been made in the addresses and give to the submissions such weight as I think they deserve. In no sense are those submissions evidence in the case.

8. As the tribunal of fact I am expected to use my individual qualities of reasoning, my experience, my understanding of people and human affairs, and my common sense.

9. I must act impartially, dispassionately and fearlessly. I must not let sympathy or emotion sway my judgment.

10. As the sole judge of the facts, I must not act capriciously or irrationally. I am obliged to determine all relevant questions of fact according to the evidence that has been presented during the course of the trial. That evidence includes the oral evidence of the various witnesses called, the video and audio recordings and the various exhibits that were tendered in the Crown case and the evidence tendered on behalf of the accused.

11. I remind myself that I may, in my role as judge of the facts, draw inferences from the direct evidence. Inferences may be valid or invalid, justified or unjustified, correct or incorrect. I may only draw an inference from proven facts if such inference is the only reasonable inference that can be properly drawn from the proven facts.

12. I now direct myself on the onus of proof. The burden of proof of guilt of the accused is placed on the Crown. That onus rests upon the Crown in respect of every element of the charges. There is no onus of proof on the accused at all. It is not for the accused to prove his innocence but for the Crown to prove his guilt and to prove it beyond reasonable doubt. Suspicion is not a substitute for proof beyond reasonable doubt.

13. It is, and always has been, a critical part of our system of justice that persons tried in court are presumed to be innocent, unless and until they are proved guilty beyond reasonable doubt. Unless the Crown succeeds in proving each and every one of the essential ingredients or elements of the charge(s) beyond reasonable doubt, then the accused must be found "not guilty" of the charges.

14. The words "beyond reasonable doubt" are ordinary everyday words and that is how I understand them. If, at the end of my deliberations, having taken into consideration the evidence both for the Crown and for the accused in respect of any matter which the Crown must establish to make out its case, and after considering the submissions made to me by each of the counsel in their addresses, I am not satisfied that the Crown has established any one of these essential matters beyond reasonable doubt then it is my duty to bring in a verdict of "not guilty", because the Crown will have failed to do what the law requires it to do.

15. I remind myself that it is vitally important that I clearly understand that the accused must be found "not guilty" if his guilt has not been proved to my satisfaction beyond reasonable doubt. It follows from this, of course, that if I am left unable to decide whether the Crown has proved its case in relation to any such essential element, even though I may feel that the accused may be guilty, if I have a reasonable doubt in respect of that matter, the accused is entitled to the benefit of that doubt and I must find him not guilty. This is so in respect to the Crown case against the accused for each count.

16. It is the Crown that bears the onus of satisfying me beyond reasonable doubt that the accused is guilty of the offences charged. The accused bears no onus of proof in respect of any fact that is in dispute. I remind myself that he is presumed to be innocent until I am satisfied beyond reasonable doubt by the evidence led by the Crown that he is guilty of the offences charged.

17. The accused gave evidence and he called other witnesses. The fact that he gave evidence and called other witnesses does not alter the burden of proof. The accused does not have to prove that his version, or the versions of the other witnesses, is true. The Crown has to satisfy me that the accused’s account, and where necessary, the accounts of other witnesses, should not be accepted as a version or versions of events that could reasonably be true.

ELEMENTS OF THE CHARGES

Count 1

18. Prior to the commencement of closing addresses, I provided Counsel with a draft sheet setting out what I understood to be the essential elements of the Counts (MFI 2). As will be seen, the identification is complicated, somewhat, because of the Crown’s reliance upon joint criminal enterprise liability. There was some limited argument in respect to these elements. With the benefit of that argument, I take the elements to be as follows. In setting out these elements, I also elaborate my understanding of the key elements.

19. The elements of this count are as follows:

1. Monro was wounded.

2. Two or more persons, including the accused, agreed to inflict grievous bodily harm upon Monro; and

1. the wounding of Monro fell within the scope of the agreement between the accused and one or more persons; or

2. the accused foresaw that wounding of Monro might be committed even though it was outside the scope of agreement of the accused and one or more persons; and

3. the accused:

1. participated in acts pursuant to such agreement; and

2. had the intention of causing grievous bodily harm.

‘Wound’

20. This word is not defined in the Act. Under the general law, a ‘wound’ means an injury involving the breaking or cutting of the interior layers of the skin (the dermis) and the breaking of the outer layer (epidermis) is insufficient[3] .

    3. R v Smith (1837) 8 C & P 173.

21. The accused concedes that the Crown has made out that Monro did suffer a ‘wound’, and was ‘wounded’, but only to the extent that there was an injury to his lower right flank that penetrated the dermis.

Intent

22. Intention may be inferred or deduced from the circumstances in which the wounding, and from the conduct of the accused before, at the time of, or after he, or one of the assailants stabbed Monro.

23. Where a specific result is the obvious and inevitable consequence of a person’s act, and where he deliberately does that act, it may readily be concluded that he did that act with the intention of achieving that specific result.

‘Grievous Bodily Harm’

24. This expression is a defined term under the Act (s 4). Relevantly the concept embraces any permanent or serious disfiguring of the person. Its main denotation, however, is proof of “really serious bodily injury” (Swan v R [2016] NSWCCA 79 at [57]). The word “really” indicates that “grievous bodily harm” is a more serious form of injury than ‘actual’ bodily harm (Swan v R at [57] – [62]). Ascertaining what constitutes really serious bodily injury may involve questions of fact and degree (Swan v R at [65]). The concept looks to the injuries, and to the physical effects of the injury or injuries.

Joint enterprise liability

25. The Crown accepts that it cannot establish that the accused directly inflicted the stab wound. The fact of the wounding of Monro is an essential element of the first and second counts. The Crown accepts that, in order to establish the accused’s liability in respect to the primary count, or alternatively Count 2, it relies upon the doctrine of joint enterprise liability.

26. This doctrine posits that where two or more persons carry out a joint criminal enterprise, that is, an agreement to carry out a particular criminal activity, each is responsible for the acts of another participant in carrying out that enterprise or activity. This is so regardless of the role taken by a particular participant. The Crown must establish both (a) the existence of a joint criminal enterprise and (b) the participation in it by the accused. It does not matter whether the agreed crime is committed by only one or some of the participants in the joint criminal enterprise, or whether they all played an active part in committing that crime. All of the participants in the enterprise are equally guilty of committing the crime regardless of the actual part played by each in its commission.

27. Joint criminal liability between two or more persons for a single crime may be established by the Crown in different ways:

1. where the crime charged is the very crime that each of the participants agreed to commit: Gillard v The Queen (2003) 219 CLR 1 at [109]–[110],

2. where the crime committed fell within the scope of the joint criminal enterprise agreed upon as a possible incident in carrying out the offence the subject of the joint criminal enterprise: see McAuliffe v The Queen (1995) 183 CLR 108 at 114–115 affirmed in Miller v The Queen (2016) 259 CLR 380 at [29]; Clayton v The Queen (2006) 168 A Crim R 174 at [17],

3. where the crime committed was one that the accused foresaw might have been committed during the commission of the joint criminal enterprise although that crime was outside the scope of the joint criminal enterprise: see McAuliffe v The Queen at 115–118 affirmed in Miller v The Queen at [10], [51], [135], [148] (this is an extended common purpose form of enterprise liability).

Proving an agreement

28. But whichever of the category may apply, the liability arises from the making of the agreement (tacit or express) between two or more persons and the offender’s participation in its execution: Huynh v The Queen [2013] HCA 6 at [37]. The agreement need not be expressed in words, and its existence may be inferred from all the facts and circumstances surrounding the commission of the offence that are proven on the evidence. Further, the agreement need not have been reached at any particular time before the crime is committed, provided that at the time of the commission of the crime, the participants have agreed that the crime should be committed by any one or all of them.

Participation

29. A person participates in a joint enterprise by being present when the agreed crime is committed: Huynh v The Queen at [38]; Youkhana v R (2015) 249 A Crim R 424 at [13]. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish that, at some point in time, an agreement has been reached between them that the crime should be committed. For example, if two or more people are at the very same time punching or kicking a third person, a trier of fact could infer or conclude that they had agreed to assault that person. That is precisely the argument that the Crown makes in this case.

30. As I have noted, the Crown contends that the accused should be liable in respect to the wound, even though it accepts that it cannot prove that it was the accused himself who stabbed Monro. That gives rise to the question of the extent to which acts of one participant to the enterprise are attributable to another. In this respect, in the High Court’s decision in IL v The Queen (2017) 260 A Crim R 101; [2017] HCA 27 there was division. Bell and Nettle JJ at [65] opined that in a joint criminal enterprise the only acts committed by one participant that are attributed to another participant are those acts that comprise the actus reus of the commission of a crime. Kiefel CJ, Keane and Edelman JJ disagreed. Although stated in obiter, their Honours held (at [29]) that joint criminal liability more broadly involves the attribution simply of acts. The attribution of acts in furtherance of the common purpose means that one person will be personally responsible for the acts of another whether or not those acts are criminal or wrongful. Gaegler J at [106] agreed with Kiefel CJ, Keane and Edelman JJ in this respect. 

Establishing that the crime is committed

31. The Crown must prove beyond reasonable doubt that the crime which was the subject of the joint agreement was in fact committed. It therefore must prove beyond reasonable doubt that each of the essential facts or ingredients, which make up that crime, was committed, regardless of who actually committed them.

32. For Count 1, this means that the Crown must establish beyond reasonable doubt that the participants agreed to inflict grievous bodily harm upon Monro.

33. I note that in her Honour’s pre-trial ruling on the admissibility of telephone intercept evidence, after considering the authorities, Beckett DCJ opined (at [19]-[24]) that the Crown was not required to establish that the necessary agreement entailed agreement amongst the participants to inflict injury with a knife or any sharp implement. It was sufficient that the agreement was to inflict grievous bodily harm. I respectfully agree with that opinion and her Honour’s reasoning.

34. Further, in respect of the accused, the Crown must prove beyond reasonable doubt that he was a participant in the commission of that crime as part of a joint criminal enterprise with one or more persons.

Count 2

35. If I find that Count 1 is not made out, I must consider Count 2. The elements of that count are:

1. Monro:

1. was wounded; and

2. suffered actual bodily harm.

2. The accused, in the company of at least one other, agreed to inflict actual bodily harm upon Monro; and

3. the wounding of Monro fell within the scope of the agreement between the accused and one or more persons; or

4. the accused foresaw that the wounding of Monro might be committed even though it was outside the scope of the agreement of the accused and one or more persons; and

5. the accused:

1. participated in acts pursuant to such agreement; and

2. was reckless as to whether Monro would suffer actual bodily harm.

‘Wounding’

36. I repeat what I said earlier about what constitutes a wound. The Crown case is that the wounding here was by stab wound. Again I note that the accused concedes this element, of Monro being wounded, is made out.

‘Actual Bodily Harm’

37. Actual bodily harm is any hurt or injury that interferes with the health or comfort of a person. The injury does not need to be permanent but it must have more than a fleeting or trivial affect upon the victim such as fear or panic at the time of the incident.

‘Recklessness’

38. The accused cannot be found to have acted recklessly unless the Crown proves that he actually thought about the consequences of an act by himself or another member or members of the enterprise and at least realised the possibility of the victim being wounded. The Crown does not have to prove that the accused realised that a serious injury or any particular type of injury might result from his actions, or the actions of another or other participant to the enterprise. Certainly, the accused does not have to realise the possibility that an injury of the type and extent suffered by the victim might occur.

39. The Crown accepts that it must establish that the accused adverted to (a) the wounding of Monro and (b) actual bodily harm resulting from such wounding. In doing so, the Crown relies upon the same conduct said to constitute the primary count. That concession is, in my view, correctly given: Blackwell v R (2011) 81 NSWLR 119 at [82], [120], and [170].

Count 3

40. If I find that the accused is not guilty of Counts 1 or 2, I must then consider Count 3. The Crown contends that the elements of this count are as follows:

1. The accused, in the company of Kirk Micallef and Shannon Hodder, was part of a joint enterprise comprising an agreement to assault Monro.

1. Monro:

1. was assaulted; and

2. suffered actual bodily harm occasioned by the assault.

3. The accused was present during the assault.

41. The accused contends that common purpose is not applicable to this count. That being so, his Counsel contends that the offence would be made out if I was to find that the accused was one of a group of people who assaulted Monro and that actual bodily harm was occasioned as a result.

Assault

42. An ‘assault’ is established by proof of:

1. a striking, touching or application of force by the accused to another person (the complainant);

2. that such conduct of the accused was without the consent of the complainant;

3. that such conduct was intentional or reckless in the sense that the accused realised that the complainant might be subject to immediate and unlawful violence, however slight as a result of what he was about to do, but yet took the risk that that might happen;

4. that such conduct be without lawful excuse.

43. In this proceeding, there is no issue about elements (b)-(d) above. There is also no dispute that element (a) is satisfied in the sense that Monro was (repeatedly) struck. That is to say, Monro was assaulted. The Crown’s case is that the accused is liable for the assault upon Monro by reason of his participation in a joint criminal enterprise.

PROOF OF THE CROWN CASE

Overview

44. The Crown case against the accused is partly direct and partly circumstantial. It relies upon Monro’s direct identification of the accused at the time of the assault as a participant to the assault. That is then said to be fortified by ‘recognition evidence’, or, picture identification evidence, by which Monro identified the accused virtually 2 years later.

45. The Crown relies upon certain eyewitness evidence to corroborate Monro’s evidence of the nature and extent of the assault or, indeed, assaults, upon him. This eyewitness evidence did not, in terms, specifically identify the accused as a participant.

46. The Crown also relies upon other circumstantial evidence placing the accused in communication with Micallef, prior to the attack, to ground the inference that he participated with Micallef and the assailants at the time of the assault.

47. The Crown also relies upon telephone intercepts between the participants, some of which included the accused, after the assault occurred; in which the accused is referred to in the context of engaging in conduct with the purpose of evading detection; such as disposing of the ‘get away’ car that was used in the prelude to the assault and after the assault had occurred. It relies upon this evidence partly to establish its case on joint criminal enterprise, and, at any rate, to prove admissions were made by the accused, or other statements which bind the accused (under s 87(1)(c) of the Evidence Act 1995 (NSW)).

Monro’s Evidence

48. On the afternoon of 18 April 2018, Monro said that he had been with Ms Robyn Pollock, whom he described as an acquaintance. He overhead her having a conversation, on speaker phone, with the accused. He said he overheard the accused say to Ms Pollock that “me and the boys are going to get” Monro. Later, under cross-examination, he added that he had heard the accused ask Ms Pollock whether she had seen him (Monro). Hearing this information about what the accused (and others) was foreshadowing surprised Monro, as he thought that there was ‘no issue’ between him and the accused.

49. On 19 April 2018, Monro was being driven to Robyn Pollock’s single room in a large residential facility called Strathavon (on Boyce Avenue, Wyong) by a female friend. He expected to have a short meeting with Ms Pollock.

50. When he got out at Strathavon on 19 April 2018, he walked towards Ms Pollock’s room. Before he arrived at her room, he said he noticed two men loitering outside the building. Monro’s “gut feeling” was that something was amiss. He tried calling Ms Pollock on his phone but was unable to reach her. He had not seen these men before. One of them asked him who he was. When he said his name, one of them threw a punch at Monro, but the punch missed Monro as he had ducked. Monro proceeded to run back down the gravel driveway, to exit the resort, but he slipped and fell. Before he knew it, he saw three other men coming towards him, in addition to the two men he had previously seen. He recalled that they piled in on him, raining down kicks and punches to various parts of his body. He recalled attacks to his face, back, chest, and head. All the while he tried to get away, but was hapless in the face of 5 people piling upon him.

51. Of this group of 5 males, Monro identified only two as persons he had seen before: the accused and Mr Shannon Hodder. He had met the latter whilst Monro had been in jail (he said he himself was there for a driving offence). Under cross-examination, he said that the accused was one of those who hit him (T 86.86-87.12).

52. Monro recalled hearing a female onlooker, apparently a friend of one of the assailants, scream that “that’s enough”. The assault subsided. Monro tried to get to his feet and just as he was standing up, he heard Shannon Hodder say “that’s for calling me a dog”. He heard another male say something else which he construed as a warning of a potential further attack. The group dispersed.

53. Monro struggled towards the exit point of the resort. He recalled an elderly lady came to his aid. She was later identified as Joan Davis. He recalled that she remarked to him that he had been stabbed. Monro had not realised he had been stabbed prior to hearing that remark.

54. The elderly lady drove Monro to a friend’s place in Wyong. The friend was Ms Vanessa Bolt. It appears that Monro’s penknife fell in the elderly lady’s car.

55. Monro was driven to Wyong hospital. He said that because of circumstances affecting his parole conditions, he had to leave the hospital. He later returned to Wyong Hospital on 26 April 2018.

56. In his evidence, Monro identified police photos taken of his body, virtually a week after the assault had occurred. They indicated missing teeth, marks on the head, the scars from a stab wound, cuts to both hands and a black eye. Monro also recalled suffering other cuts to the top of his head.

57. The cross-examination of Monro centred partly on his drug-taking activity in the lead up to the assault; as well as the disclosure of such activity after the assault. It was suggested that the purpose of his meeting Robyn Pollock was to purchase drugs. Monro denied being affected by drugs, or seeking them in the lead up to and at the time of the assault. Notes taken at Wyong Hospital suggested that, contrary to his recollections of what he told hospital staff, when he visited the hospital on 26 April 2018, he had identified himself as being an intravenous drug user.

58. After the assault, Monro was referred to his conduct at the hospital and his aggressive demeanour. Monro accepted that he had lied when, initially, he had told staff that he had fallen off a bike as explanation for his injuries. It was put to him that he had also indicated to the hospital one week after the assault, that he had been an intravenous drug user had that he had been self-medicating. Monro denied saying these things. When he was referred to the notes from the hospital (Exhibit B), he said that he could not recall what he said, or did not say, to the hospital as he was under the influence of pain-killers. In re-examination, he said that these consisted of taking a couple of Panadol tablets.

59. A further topic was Monro’s dealings with Ms Pollock on the day before the assault. Monro was challenged about his recollection of what he said he heard the accused say or said to Ms Pollock. He was referred, in this regard, to a statement he had made to the police that he had only heard the accused foreshadow an attack on an unidentified person (“him”). Monro was adamant that he heard the accused refer to him by name. It was suggested that he had not told the police the part of the conversation between Ms Pollock and the accused where the latter had asked Ms Pollock whether she had seen Monro. Monro’s response was that he did not think he needed to: he had heard the accused’s voice and had heard his name. In re-examination, it was confirmed that when he said in his police statement that he had heard the accused say that attack was to be made upon “him”, that statement was made after Monro had heard his name mentioned. It was suggested to Monro that the accused did not say the words that Monro attributed to him in the telephone conversation. Monro maintained that he did. He added that in some conversation with Ms Pollock after the call, the latter had also indicated that the foreshadowed attack was directed at him. In response to this, it was suggested that he had not informed the police about that conversation.

60. Monro’s recollection of the assault itself, and the accused’s role in it, was also tested. There was some discrepancy in recollection, in terms of timing, as to when Monro realised that he had been stabbed. It was suggested that in the short period of time from when one of the two men (unsuccessfully) took a swing at him and the time the accused slipped on the driveway, Monro would not have the time to identify the three additional men (including the accused) who he believed were assaulting him; in addition to the two men he had earlier encountered. It was put to him that the accused was not there at all. It was also put that the accused did not lay a finger on him. It was suggested that at the time of the assault, Monro was under the influence of ‘ice’. It was also suggested that because he had (mistakenly) believed that he had heard the accused foreshadow an assault upon him the day before, and because he was actually assaulted the next day, he had put two and two together and simply assumed that the accused was one of the assailants, without actually seeing him participate. These propositions were all denied.

61. It was suggested that the knife that was used to stab him may well have been his own penknife that had been found in Joan Davis’ motor vehicle. Monro adhered to his evidence that he saw a group of five men assaulting him, that one of them included the accused; and that the accused had hit him. He denied having taken ‘ice’.

Credit

62. Monro did not strike me altogether as a very satisfactory witness. Aside from his frequent interruptions to Counsel’s questions, several of his answers were non-responsive. He struck me as being quite defensive; although, in fairness to him, this was at least partly explicable by his predicament at the time. It became apparent through the course of his cross-examination that, as at 18 and 19 April 2018, he was on parole. It appeared that he was a drug user and he appeared evasive to me when questioning centred upon this activity; both in his dealings with Ms Pollock and his subsequent disclosure of such activity to Wyong Hospital after the assault on him. He appeared to me very conscious about the very adverse impact to him should the police learn of such activity in its investigation soon after the assault had occurred. Where he struggled when giving evidence, in my view, it concerned his activities before the assault, such as his purposes in meeting Ms Pollock, and after the assault.

63. Nevertheless, subject to a possible further qualification, in the essentials regarding the circumstances in which the assault occurred, Monro consistently adhered to his evidence, which was straightforward in its nature. The qualification was when he was asked in cross-examination about what the accused was wearing and Monro said that he did not know. In his evidence in chief, he recalled that the accused was wearing blue shorts, a t-shirt and Asics sneakers (T 65.5). When it was suggested in cross-examination that he had given a description of what the accused was wearing, Monro said that he was only giving a description of what the accused wore when he met him in the pub at Wyong prior to the assault (T 85.12 – 85.39). It did not strike me that there was ambiguity in the prosecutor’s question. Ultimately, however, Counsel for the accused did not submit that there was any inconsistency.

64. So far as the accused’s position was concerned, the thrust of the questioning to Monro was not to dispute that a vicious assault occurred; only that the accused was not part of it. I do not consider that he was fundamentally shaken in his evidence about the assault and the accused’s participation in it; if not some of the preceding and subsequent events.

65. Given that it was only Monro who specifically identified the accused as one of the assailants, or participants in the assault, I am mindful of being very careful in weighing his evidence in view of the reservations I have expressed. I will return to this subject again after considering the accused’s evidence.

Eyewitnesses to assault

Joan Davis

66. Mrs Joan Davis was the owner or occupant of a house in Boyce Avenue, Wyong which was two houses along from a house that was directly across from the driveway to Strathavon. At about 2:00pm on 19 April 2018, she had returned from her usual playing of lawn bowls at the Wyong Bowling Club. She went to fetch her mail. That required her to use a combination to unlock the post box. In the process of looking down to insert the correct combination, she recalled witnessing a man on the ground being kicked by 2 males. She recalled that she looked down again at the combination and the next time she looked up, she saw that the man who had been kicked had his feet in the air, and was then driven, head-first, to the ground (a bitumen surface), by the same two males. Mrs Davis noticed that there were two girls who watched on whilst this assault was happening. She did not recall other males being present. She recalled seeing the males drive away, and recalled the driver winding down the window and saying (to Monro) “we’re going to get you”. That car was travelling in the direction of Wyong railway station.

67. Consistent with her description of the location of her home, relative to one of the entrances to Strathavon, Mrs Davis said she had a diagonal view from the point of her post box to the place where she saw the assault occurring. She identified the place of the assault as a point close to the gate where vehicles would enter. Initially, she estimated that this was 100 metres, or 100 yards, but she later corrected herself by saying that she thought it was more like 50 or 60 metres. After she saw the assault, Mrs Davis called for the assistance of the two girls that she saw, but they indicated to her that they did not know Monro. She recalled that the assault occurred just outside the entry point to Strathavon.

68. Mrs Davis recalled that Monro got up and made his way across to the other side of Boyce Avenue to a bus stop, which was opposite the entrance to Strathavon. She attended Monro, but Munro indicated that he did not want her to call the police or the ambulance. He did, however, ask her for a glass of water and Mrs Davis helped him to the veranda of her home. Some drops of blood were located there. Monro asked Mrs Davis to drive him. She noticed a hole in his side and asked him whether he had been stabbed. She saw some blood from that point and noticed that he was also bleeding profusely from the head. To her observation, however, Monro appeared more preoccupied with speaking to a person on his mobile phone. Eventually, she reached a place where he asked to be let out.

69. At the time of the events that she described, Mrs Davis was apparently about 80 years of age. She customarily wore prescription glasses (and said that she wore them that afternoon). She did not consider that she had any abnormal issues with her memory. In the events that occurred, she was not seriously challenged as to the reliability of her evidence on either of these bases.

70. She was, however, questioned on whether her view of what occurred was impaired. Mrs Davis denied that this was so. She had however, noted in her evidence in chief that there were bushes and shrubberies overhanging the entry point to Strathavon.

71. She was also challenged on her evidence about the victim being dropped to the ground head first. It was suggested to her that what she had seen was the victim having slipped after running. Mrs Davis decisively answered that the victim’s feet had been in the air. She added that it was this particular feature of the assault that motivated her to actually do something.

72. I have no doubt that Mrs Davis gave her evidence sincerely and it is to her immense credit that she acted as a good Samaritan in aid of Monro after the assault occurred. I accept that there were no demonstrable problems affecting her reliability although I am not entirely convinced that her recollection was entirely accurate. For example, I expect that if Monro had been ‘pile-driven’ into the ground, the examination and reporting of his injuries might have taken on a different complexion than they eventually did. There was no suggestion, for example, that Monro suffered any loss of consciousness, or any other neck of spinal injury that would naturally follow from being driven, head first, into a bitumen surface. Monro himself did not say he was driven head first into the ground. There was, also, some ambiguity in her evidence as to the extent to which, if at all, the shrubberies and tree leaves obscured her view. Her recollection of the actual distance between the assault and where she was standing when she witnessed it was somewhat shaky. Her evidence identifying only 2 assailants who participated in an attack on Monro was different to Ms Stacey Davis (and Monro) whose evidence about the circumstances of the actual assault I prefer.

Stacey Davis

73. On the day of the assault, Ms Stacey Davis (being no relation to Joan Davis) also lived in Boyce Street, on the other side of the road to the Strathavon. She lived at a place two doors down (across to the right, looking from the photo) from the red-bricked house depicted in what came to be the best photograph (Exhibit 7, photo 32) identifying the relevant gate and roadway where the assault occurred. Her home was on something of a ‘dog-leg’ as the street tailed around. This reduced her visibility of what she could see of Strathavon. Specifically, with reference to the subject photograph, she could only see about 5 metres beyond the gate as the entrance to Strathavon. She estimated that she was about 30 – 40 metres away from the place where she described the assault occurred.

74. Her evidence was that she was at home with her friend, Mr Brett Tatt, on the front veranda. She said that as she looked towards the driveway (identified in Exhibit 7, photo 32) she saw 5 individuals (all of them men) – four of them dragging the fifth individual above the ground (with the fifth being in a horizontal position when being carried) from within the precinct of the Strathavon towards the direction outside the gate of Strathavon; on the right side (viewed from Exhibit 7, photo 32). There she saw them drop the individual (by means of a push in a downward direction) onto his back. She said that she saw them punch and kick him. The attack happened in about 2-3 minutes. She also noticed two females (who she did not recognise) standing nearby. They were on the other side of the gate where the assailants were, looking on.

75. Ms Davis said she saw Monro get to his feet and hobble across the road. She thereafter turned inside – she had children to care for and wanted to make sure that they did not come out. She recalled that Brett Tatt rang the police.

76. I considered Stacey Davis’ evidence as being both credible and reliable. She was not seriously challenged in her account. Indeed, Counsel for the accused appeared to rely upon her evidence as a more likely description of the assault than the account given by Joan Davis.

‘000’ calls by the Wilkies and Brett Tatt

77. The Crown led evidence of two audio-recorded telephone calls to 000, both made at about the same time – 2:16pm – and received by the police about 2 minutes later (2:18pm) on 19 April 2018.

77. One of those calls was led through Michaela Wilkie. This was a joint call from Michaela and Michelle Wilkie. Michelle Wilkie was Michaela’s mother. Michelle was not required to attend for cross-examination. On 19 April 2018, Michaela was visiting Michelle, who was living at the Strathavon. Michaela, Michelle and Michaela’s stepfather, were all sitting on Michelle’s veranda. Michaela gave evidence that she witnessed a group of 5 or 6 males running out of a building within the precincts and running along a driveway towards the front gate of the entrance to Strathavon. She recalled that after talking with Michelle, they decided to (jointly) ring the police.

78. The audio recording of their conversation with the emergency operator yielded a more expansive account than that which Michaela provided in her evidence at the trial. The recording apparently indicated Michaela’s witnessing a punch and her seeing Monro bleeding. But the recording also tended to indicate that Michelle Wilkie had seen more of what had occurred.

79. Michelle indicated to the operator that she had seen a group of 5 come out of a white Holden Commodore station wagon. She identified the number plate: 8KA81H. She saw a group of 5 “belt” the victim. They “got him” both in the driveway within the Strathavon precinct and out the front, outside the front gate to one of the entrances. Then they left and took off. The assailants were conscious of Michelle looking on but told her to ‘stay out of it’. With commendable bravery, she stood her ground and said she was not going to stay out of it. She gave a partial description of the assailants: they were muscly and had tattoos all over them. I interpolate here that the CCTV footage of the accused in the Wyong Correctional Centre later that same day tended to show that he was muscly and had tattoos. She confirmed that there were 5 of them.

80. Michelle saw the victim bleeding from the head and mouth. She thought he had a head injury. She informed the operator that the victim did not seek medical help; nor wanted Michaela to even call the police. She also described the aftermath: seeing the victim enter into what was later identified as Joan Davis’ car.

81. The second call was from Brett Tatt, Stacey Davis’ friend. Tatt was not called to give evidence (I understand he was not required to attend). The content of his 000 message was essentially similar to the account from Michelle Wilkie, though he informed the operator that he had seen 6 males. Materially, he also indicated that the group “started” beating the victim within the Strathavon precinct.

The discovery of Monro’s penknife

83. Joan Davis gave evidence that just before Monro left her car, he appeared flustered – he was feeling around in her car for something which he thought he may have misplaced. At any rate, he got out of the car and Mrs Davis drove home.

84. The police were waiting upon her arrival. They were aware that Monro had been in her car and one of the police officers asked her whether she was aware that a penknife had been located in the car. Mrs Davis did not carry knives (of any variety). She was shown the knife. She did not recall whether it was open or not at the time that she was shown the knife: she thought it was not open but was not sure whether that was so. At any rate, if it was open, she did not see any blood on it.

85. Senior Constable Bertross arrived at Strathavon after the assault. He took the contact details of the Wilkies and later entered exhibits at Wyong police station. He took many photos (on his mobile phone) of the crime scene (Exhibit 7), including the Strathavon driveway and Joan Davis’ veranda and car. He was on hand when A/SGT Laing indicated that he had located a penknife in Joan Davis’ car. He said he saw it on the side of the front passenger seat. Contrary to the prevailing usual standard, A/SGT Laing removed the penknife before a photograph was taken of it in situ. Officer Bertross took the photos of the knife that were in evidence: it was he who opened the blade (Exhibit 8). He accepted that it was possible that A/SGT Laing had opened and closed it before showing him for safety reasons; but the officer only recalled seeing it closed.

86. The other main aspect of Officer Bertross’ evidence concerned his sighting of blood droplets. These were depicted in some of the crime scene photos as being on Joan Davis’ veranda, the roadway on Boyce Avenue (outside Strathavon), gravel outside Strathavon (before Boyce Avenue). He also recalled seeing droplets on the driveway within Strathavon (8-10m within the precinct beyond the steel fence at the entrance); though it was difficult to see this in the two photos he had taken of that driveway (Exhibit 7, photos 32-33).

Accused’s appearance at Wyong Community Corrections centre on 19 April 2018

87. The Crown accepts that the accused attended the Wyong Community Corrections Office as part of his parole: the accused was acknowledged (by sign sheet) as being in the centre no later than at 2:50pm on the day of the incident. On the basis that the assault occurred between 2:12pm and 2:16pm (on the basis of the calls to 000), the Crown contended that there was sufficient time for the accused to have travelled from Strathavon after the assault to the correctional centre.

88. Mr Steven Mahoney gave evidence of CCTV footage of the accused entering Wyong Community Corrections Office, also known as the ‘parole and probation office’. A case note report (Exhibit 21) was put into evidence recording a written summary of the accused’s interview with Ms Rhiann Zirbel, who was at that time an acting unit leader, on 19 April 2018. The accused’s name was inserted on a sign on sheet (Exhibit 19) in the centre at the front desk.

89. There were certain uncommon features of his attendance. At any rate, the accused argues that the suggestion that his attendance at 2:50pm was unintended, or unscheduled, is doubtful. First, it was possible that he attended for parole the night before, but was informed to come back on 19 April 2018 because of the absence of his then supervising officer (Ms Kahlia Henderson). Second, although it appears that the accused arrived at the office “unannounced” that was not to say that he had not made attempts to re-schedule the appointment for the afternoon. It depended upon whether such attempts were made, by a parolee, by calling his supervising officer directly on her telephone extension; or whether he rang through the general line and spoke through administrative staff. Mr Mahoney noted that the best practice, as at April 2018, was that if a parolee’s call to re-schedule was made through the general line, there should have been a note of such contact. No such note was made here. One possible inference was that if the accused had rung through to re-schedule, the call was placed to Ms Henderson. Another inference was simply that the best practice was mistakenly not followed.

90. The accused, with reference to the CCTV footage and the sign on sheet, suggested that there was doubt about when the accused actually entered the building, as distinct from the time that his attendance was recorded by the staff member (being 2:50pm). The accused had to press the button twice to draw attention to his arrival and had to wait. In this regard, Mr Mahoney – who viewed the CCTV footage – estimated that the likely delay between his pressing the button and the time the sheet was signed was in the range of 5 to 7 minutes. That would, subject to a qualification, place the accused in the building at about 2:43pm. The qualification, or perhaps assumption, is that the 2:50pm recording on the time sheet was accurate – the recording might, for example have been a rounding up. When he was later cross-examined, the accused said that he received a telephone call from Micallef at about 2:42pm when he was already in the waiting room in the parole and probation office.

91. To be precise, I consider it most likely that he arrived in the office at 2:42pm.

Monro’s injuries

92. As noted, Counsel for the accused conceded that the Crown established that there was a ‘wound’, but only to the extent that such wound was caused by the stabbing of Monro. It is pertinent to consider the extent of the injuries as part of consideration of the scope of agreement forming the alleged joint criminal enterprise.

93. Monro was taken to Wyong hospital. Dr John Scott provided a statement to the police after examining Monro on the day of the assault. He identified as injuries: bruising to Monro’s right eye; a small (less than 2cm) cut above the right eyebrow, a dislocated left shoulder; a 2cm wound to the right flank extending at least through the epidermal and dermal layers of the skin. He opined that the injuries were consistent with Monro receiving blunt force trauma to face and shoulder, and penetrating trauma to the right flank from a sharp implement.

94. Dr Claire Allerton provided a statement that when she examined Monro a week later, on 26 April 2018, she identified his having sustained injuries comprising: a dislocation of the left shoulder joint; infection of the wound to his right lower flank. In the latter respect, she noted a wound of approximately 2cm breaching both the epidermal and dermal layers of the skin. She also identified bruising around the right orbit and abrasions to both thenar eminences. She opined that Monro had sustained a stab wound to the right lower flank and dislocation of his left shoulder during the assault.

The telephone intercepts & SMS text messages (Exhibits 16, 16A & 17)

Telephone conversation between Robyn Pollock and the accused – 18 April 2018

95. A summary of call charge records in evidence (Exhibit 12) indicated that in the period from about 4:24pm to 4:34pm on 18 April 2018, there was a series of telephone calls and SMS messages exchanged between Ms Pollock and the accused, on their respective mobile telephone numbers.

96. The extent of the challenge to Monro’s evidence of what he overheard the accused say to Ms Pollock that afternoon was only to the content of what he heard – not the circumstance that a telephone conversation (or conversations) between Pollock and the accused occurred at all, or that Monro was not privy to such a conversation.

Pre-assault intercepts on 19 April 2018

97. The police obtained warrants and, following execution of the warrants, obtained telephone intercept material on the mobile phone of Kirk Micallef [4] . An audio recording of that telephone intercepts was in evidence (Exhibit 16).

    4. Objection to the tender of this material was ruled upon by Beckett DCJ on 5 December 2019.

98. At 12:48pm on 19 April 2018, Micallef told the accused that he would collect him in about an hour and ten minutes.

99. At 1:36pm, Robyn Pollock rang Micallef and told him she was at “Dan’s (i.e. the accused’s) place at Watanobbi. Robyn Pollock sent Micallef a SMS text that “Dan” (the accused) may need Micallef to drive him to ‘mine’ (apparently her place of residence at Strathavon) to “get this Monro”.

Post-assault intercepts

100. At 2:34pm, Micallef rang Mr Dylon Ratahi. Ratahi was the registered owner of the white Commodore station wagon which was witnessed as collecting the accused earlier in the afternoon, prior to the assault, and was seen at Strathavon at the time of the assault [5] . Micallef warned Ratahi that he might get a call from the police because “I just went and fuckin’ smashed this bloke”. He (and they) “really hurt this person...” He went to on to say that “the woman there” he knows told him that the police have his (Micallef’s) number plate. I infer that the woman referred to here was Robyn Pollock. Micallef told Ratahi that the “mate I went with that I helped him out” is going to drive Micallef to the RTA to swap the plates. The Crown says that that mate is the accused. The accused said it was someone else. Micallef appeared concerned about what to do with the car.

     5. Exhibit 18.

101. At 2:37pm, Micallef rang the accused, but the call went unanswered.

102. At 2:39pm, Ratahi rang Micallef. Micallef told Ratahi that he had just “tried ringing me mate that I done it with...”. That also appears to be a reference to the same “mate” who Micallef referred to in his earlier call to Ratahi at 2:34pm. Ratahi suggested that Micallef bring the car to his place at Muswellbrook and that he, Ratahi, would say he knew nothing about it. Micallef said he would call “him” (a reference to the “mate that I done it with”) to drive the car up there.

103. At 2:42pm, Micallef rang the accused. The accused said that he has to ‘go to parole’. That is consistent with Mr Mahoney’s CCTV footage placing the accused at Wyong Community Corrections Office at 2:50pm. Micallef indicated to the accused that Ratahi was going to have a ‘bbq’ at Muswellbrook that night and asked if the accused wanted to come. It was arranged that two cars would be driven; and that they would each drive the other’s cars.

104. At 2:45pm, Micallef called Ratahi to tell him he’d just spoken to “his mate” (I infer the same ‘mate’ referred to in both the 2:34pm and 2:39pm messages) and that they had agreed to go to Ratahi’s place in Muswellbrook that night; and that they would drive each other’s cars. Ratahi said that he would have to drop the car and run. Micallef wanted Ratahi to get the car ‘detailed’ so as to remove any evidence that he had been in the car.

105. At 2:47pm, Micallef rang Robyn Pollock. Pollock told Micallef that certain people at Strathavon had told the police that assailants had come from her place. She mentioned that police had spoken to her, but that she had told police that she did not who ‘they’ were. Micallef told Pollock of the car being registered to Ratahi and that he had indicated to Ratahi that he might receive a call from the police. Micallef told Pollock that Ratahi had asked Micallef to get the car to him and that after his “mate” went to parole (again, apparently a reference to the mate referred to in the 2:34pm, 2:39pm and 2:47pm calls) they would each drive each other’s cars up to Muswellbrook.

106. Other calls and text messages up to 5:30pm that afternoon concerned the arrangement for Micallef and the accused to drive to Muswellbrook.

107. On 23 and 24 April 2018, there were further telephone calls and SMS text messages involving Micallef, the accused and Robyn Pollock. There was (relevantly) a single message on 23 April 2018. Micallef rang Robyn Pollock. Micallef reported on the police seizing the car from Ratahi. Micallef said that he needed to talk to “Rossi” (the accused). He commented to Pollock that he, Micallef, had “had his (the accused’s) back” and indicated his expectation that Rossi would have to “step up now”.

108. On 24 April 2018, at 11:23am, the accused sent a text message to Micallef informing the latter that “my boys and I are my business”. He acknowledged that Micallef had previously “had his back”, but says that he never asked ‘you’ (Micallef) to jump in – Micallef had done it on his own. Micallef took umbrage at this text message. At 11:26am he sent a text back to the accused complaining about how he was being treated. At 11:31am, the accused texted back by assuring him that “I am your boy 100%”, though he repeated that he, the accused, had never asked for Micallef’s help although Micallef did and he would do the same for Micallef. This message appeared to placate Micallef who sent another text at 11:33am, responding “ok bro”.

Circumstantial evidence

Movements of the white station wagon

109. Mr Tomlinson, a police informant, said that at about 2:00pm on 19 April 2018, he saw a car, a white Holden wagon 2008 registration BKA81H, park in Casey Drive, Watanobbi, being the accused’s home. As I understood his evidence, when he was asked about it in cross-examination, his assistance to the police at this point was gratuitous.

110. Mr Tomlinson was, at the time, staying across the road from the accused’s home, in Casey Drive, Watanobbi. He recalled that he saw three males get out of a car and walked up the stairs of the home. Within minutes, he saw that the accused, with these males, left the home in Watanobbi and went back into the same vehicle. His evidence was that the accused did not go into the driver’s seat or the rear seat behind the driver. Mr Tomlinson said he sent a text message to his police handler at 2:10pm.

111. Mr Tomlinson said that he did not recall seeing the white Commodore wagon return to Casey Drive that day; although he recalled seeing the accused return home at about 5:02pm.

112. The text message that Mr Tomlinson sent to his handler at 2:10pm on 19 April 2018 was in evidence. So too were a number of other text messages exchanged between Mr Tomlinson and police not only on 19 April 2018, but others on 23 and 24 April 2018. In his evidence in chief, Mr Tomlinson said that some of the messages (sent subsequent to his text at 2:10pm on 19 April 2018) were sent at times when Mr Tomlinson was confused about the inquiry being raised of him.

113. It was put to Mr Tomlinson in cross-examination that the text messages sent subsequent to 19 April 2018 conveyed to his handler that Mr Tomlinson was intending to notify the handler that he had seen the occupants getting out of white station wagon and going up to the accused’s residence, but that he did so on the evening of the day before (when it was “dark”). That was said to be consistent with his message (sent at 7:54am on 24 April 2018) that he had not seen the accused come back in the car later on 19 April 2018. Mr Tomlinson was taken to other text messages which suggested that he did not have any invariable practice of providing to his handler instant notifications of the registration details of vehicles when they arrived at the accused’s residence (Exhibit C, p 2).

114. Mr Tomlinson was a less than impressive witness in explaining what, on his account, was something of a jumble of text messages relating to different subject matter. The Crown later submitted that he was very unimpressive. He did not appear to have read the text messages before he gave evidence or was otherwise prepared to give evidence. That is not to say that lack of preparation in a witness is necessarily a vice but, in this case, it may explain why, at times, Mr Tomlinson appeared defensive. I approach his evidence with caution.

115. However, in relation to the essential part of his evidence – the 2:10pm text about the arrival of the white station wagon at the accused’s place at Watanobbi – this was consistent with the content of the pre-assault telephone intercepts of conversations between Micallef and Pollock on 19 April 2018 referred to above, which disclosed an arrangement whereby Micallef would collect the accused from his home around about 2:00pm.

116. I have referred to Michelle Wilkie’s sighting of the white Commodore station wagon in Strathavon in her 000 call made at about 2:16pm, which was consistent with planning between Pollock and Micallef that the latter would collect the accused to go to “mine” i.e. her place at Strathavon.

Timing of the assault

117. The Crown placed the assault at some point between 2:12pm to 2:33pm.

118. It relied here upon Mr Tomlinson’s text at 2:10pm.The telephone intercepts indicate that it was at 2:34pm that Micallef rang Ratahi and told him of the assault.

119. Given the timing of the 000 messages, the attack seems to have occurred before 2:16pm.

Point to point photos of the white Holden wagon after the assault occurred

120. I referred earlier to the telephone intercept material concerning arrangements as between Micallef, the accused and Mr Ratahi for the return of the white Holden wagon (BKA-81H) to Muswellbrook on the evening of 19 April 2018.

121. Consistently with this evidence, the Crown relied upon photos indicating a sighting of this vehicle at 8:54pm that evening around Singleton, which was not far from Muswellbrook, where, it was intended, the car would be dropped off. It was sighted again in Aberdeen the next day.

General direction on circumstantial evidence

122. I have noted that the Crown’s case that the accused was at the place of the assault, and was a participant in a joint criminal enterprise was partly circumstantial.

122. I direct myself that, to the extent that its case is circumstantial, no single individual fact can prove the guilt of the accused. Where the Crown’s case depends partly on circumstantial evidence, I am required to reason in a staged approach. The Crown first asks me to find certain basic facts established by the evidence. Those facts do not have to be proved beyond reasonable doubt. I am then asked to infer or conclude from a combination of those established facts that a further fact or facts existed. The ultimate fact the Crown asks me to find, based upon the basic facts, is that the accused is guilty of the offence charged.

123. A case based on circumstantial evidence may be just as convincing and reliable as a case based upon direct evidence. This will depend upon the number and nature of the basic facts relied upon by the Crown when considered as a whole (not individually or in isolation). And it will depend upon whether all of the evidence leads to an unavoidable conclusion that the Crown has established the guilt of the accused. To the extent that its case is partly circumstantial, it is important that I approach the case by considering and weighing, as a whole, all the facts I find established by the evidence. It is wrong to consider any particular fact in isolation and ask whether that fact proves the guilt of the accused, or whether there is any explanation for that particular fact or circumstance which is inconsistent with the accused’s guilt.

124. The correct approach is for me to first determine what facts are established by the evidence. Any particular fact to be taken into account by me does not need to be proved beyond reasonable doubt. I then must consider all of those facts together as a whole and ask myself whether I can conclude from those facts that the accused is guilty of the offence charged. If such a conclusion does not reasonably arise, then the Crown’s circumstantial case fails because I am not satisfied of guilt beyond reasonable doubt. Of course, it follows that I must then find the accused not guilty.

125. But if I find that such a conclusion is a reasonable one to draw based upon a combination of those established facts then, before I can convict the accused, I must determine whether there is any other reasonable conclusion arising from those facts that is inconsistent with the conclusion the Crown says is established. If there is any other reasonable conclusion arising from those facts that is inconsistent with the guilt of the accused, the circumstantial case fails because I am not satisfied beyond reasonable doubt of the accused’s guilt.

Recognition evidence

The complainant’s recognition of the accused prior to the assault

127. Monro said he had known the accused for at least 6 weeks before the assault in April 2018. He had met him at a pub at Wyong. He also said that he visited the accused at the latter’s address in Casey Street, Watanobbi on 3-4 occasions prior to the assault.

128. Monro was challenged as to aspects of these encounters, but there was no challenge to his evidence about the meetings at the pub and his visit (on at least one occasion – and probably more) to the accused’s house, prior to the incident.

129. Monro said that on the day before the incident, when Monro was in the presence of Ms Robyn Pollock, he heard the accused’s voice through the speaker phone facility on Ms Pollock’s mobile telephone. It was not suggested, on the accused’s behalf, that the accused did not speak to Ms Pollock on the day before the incident.

Picture identification evidence

130. On 27 April 2020, Monro identified the accused in a photoboard at Hornsby Police Station as being involved in the assault. In a pre-trial ruling, I rejected the accused’s objection to the Crown’s reliance upon picture identification evidence. The photograph of the accused was identified by Monro after the accused had been taken into custody.

131. I now direct myself as required by s 116(1) of the Evidence Act. Evidence that the accused was identified by Monro must be approached with special caution before I accept it as reliable. The reliability relates to the identification evidence given by, not to the honesty of, Monro. A witness may be honest but that does not necessarily mean that the witness will give reliable evidence. So here, even if I thought Monro was entirely honest in the evidence that he gave, I must still approach the task of assessing the reliability of his evidence with special caution.

132. Special caution is necessary before accepting picture identification evidence because of the possibility that Monro may be mistaken in his identification of the accused. The experience of the criminal courts over the years, both here in Australia and overseas, has demonstrated that identification evidence may turn out to be unreliable. There have been some notorious cases over the years in which evidence of identification has been demonstrated to be wrong after innocent people have been convicted.

133. I must carefully consider the circumstances in which Monro made his observation of the person. The circumstances in which the witness made his observation of the person can affect the reliability of identification evidence.

134. I raised with the accused’s Counsel what warnings he generally requested of the Court. He said he requested identification and recognition directions generally, but was no more specific than that. It seems to me that several matters may be asked when considering the reliability of the recognition evidence. I raise those questions and those questions are accompanied by answers:

• Was the person identified a stranger to Monro? It is obviously harder to identify strangers than it is to identify people who are well known to us. The accused was not a stranger to Monro. Monro’s evidence was that he knew the accused prior to the assault – he had visited his home 3 or 4 times before the assault.

• What opportunity did Monro have to make his observation of the person? The photoboard process provided Monro with the opportunity to ‘pause’ before moving on to the next photograph in the array.

• Did the witness focus his attention on the person or was it just a casual sighting that did not have any significance for the witness at the time? Monro’s response when seeing the photo of the accused was decisive.

• In what light was it made? The array of photographs, out of which the accused’s photograph was selected, indicated reasonable lighting.

• Was there anything about the person observed which would have impressed itself upon the witness? I did not consider that there was anything distinctive about the photograph of the accused, in comparison with the photographs of others. Two prominent features of the accused’s physical appearance – his receding hairline and the tattoos on his neck, were features that were also apparent in the appearances of other persons in the photographs.

• Was there any special reason for remembering the person observed? The accused says that there was special reason: he and Monro had contact with each other in the Gosford Court cells on 4 December 2019.

• Was there a significant time interval between the initial perception and the identification? Here there was (subject to the encounter in the Gosford cells) a significant gap between Monro’s perception of the accused being part of the assault and his identification on 27 April 2020.

• Was the witness under any stress or pressure at the time? There was no pressure exerted by police during the photoboard. Monro appeared relaxed at the time of the identification. He acknowledged being informed, amongst other things, that he was in no way obliged to accept anyone from the photoboard.

• How long was it between the sighting of the person and the giving of the description to the time that Monro identified the accused? There was an interval of 2 years. That is not an inconsiderable period.

135. I must give consideration to each of those matters or questions. Any one of those circumstances may possibly lead to error.

136. There are, in particular, two kinds of risk associated with Monro identifying the accused in the photograph. The first kind of risk concerns the probative value of the evidence. The fact that the police have photographs of a suspect might convey to the trier of fact that the suspect is a person with a criminal history.

137. A similar risk, which is potentially of greater concern, arises where identification is made in circumstances suggestive of a criminal background, such as where, as here, the identifying witness is asked to attend a police station and look at a number of people reporting in compliance with bail or parole conditions. This is known as the ‘rogues' gallery’ effect. The risk is that I, as the trier of fact, will draw an inference about a fact which, even if true, would ordinarily be excluded from evidence.

138. In this case, the evidence of Monro is that he recognised someone that he knew. His evidence was that he had met the accused 6 weeks before the assault; that he had met him at a pub and had visited his home on 3-4 occasions prior to the assault. He said he recognised the accused’s voice when he overheard the accused speaking to Ms Robyn Pollock on the day before the incident. It is perhaps easier to understand the possibility of error when the evidence is given by someone who has not previously known the accused but errors may also occur even when the witness has previously known the accused. But mistakes have been known to be made by friends and even by relatives of a person who thought that it was their friend or relative whom they had seen. This is something I bear in mind. Just because a witness claims to have known the person, there remains a possibility of mistake.

THE DEFENCE

139. The accused denied that he assaulted Monro, or was part of any group which assaulted Monro. He said that he was simply not present at the time and place when and where the assault on Monro took place. He said that he had no conversation with anybody about assaulting Monro.

140. His alibi notice indicated that he asserted that:

1. he was in the presence of Kira Williams, from 2:00pm on the date of the assault;

2. he was in the presence of Lisa McPherson;

3. he was in the presence of Robyn Pollock; and

4. he was in the presence of Blake Forest.

141. In the event, neither Robyn Pollock nor Blake Forest were called. I must not speculate as to what their evidence would have been.

The accused’s evidence

Familiarity with Monro

142. The accused acknowledged knowing Monro before the date of the assault. Contrary to what was put on his behalf when Monro was cross-examined (that there was only one visit by the latter to the accused’s home) he also accepted that Monro had visited his home 2 or 3 times prior to the date Monro was assaulted. Also contrary to what was put on his behalf when Monro was cross-examined (that there was no conversation between he and Monro in the Wyong pub), he said that he engaged in small talk with Monro at the pub. He also recalled two telephone conversations between the two. His account of what was discussed was vague.

143. The accused was taken through, in his evidence in chief, the transcripts of telephone calls and SMS text messages before and after the assault occurred.

Pre-assault messages

144. The accused confirmed speaking by telephone with Robyn Pollock on the afternoon of 18 April 2018. Pollock had previously dated the accused’s brother and was friendly with the accused’s children. The accused denied saying anything to her about Monro. He denied any knowledge that Monro would arrive at Pollock’s place on 19 April 2018.

145. The accused acknowledged that he knew Hodder and Micallef. He regarded each of them as close friends of his; though, in Micallef’s case, the accused indicated that he had only met him about two months before April 2018.

146. The accused said that the 12:48pm message with Micallef on 19 April 2018 concerned making arrangements for breakfast (which he later corrected as a reference to lunch). At this point of the day, the accused’s partner, Kira Williams, was at work. His children were in child care. He said he was making arrangements to see Micallef. He said he was making an arrangement to meet up with Micallef at the latter’s home and go and hang out with him, with another friend (Allan Cottrell). The accused said that this other friend was nicknamed “the big fella.” This evidence about the nickname took on significance when the accused was referred to the next message. Where reference was made to “big fella”, the accused said that this was a reference to Allan Cottrell. He denied that it was a reference to Monro.

147. The accused conceded that some of the things he told Micallef in what I call the pre-assault messages were untrue. His kids were not at home with him; they were at day care; so he had no need to arrange to get a baby-sitter. He said he did not, in fact, want to hang around Micallef and his group. He later said in cross-examination that he wanted to create the appearance to Micallef that it was Kira’s doing that prevented him from meeting Micallef. The accused did eventually go to see Micallef at his place, but it was only later in the day, between 5:00pm and 5:20pm.

148. As at April 2018, the accused said he was familiar with Micallef’s car, the white commodore station wagon. He was not asked to articulate how and when he acquired that familiarity. He denied that this vehicle turned up at his place on 19 April 2018 (though he said it was possible it might have arrived the evening before).

149. At 12:48pm that day, the accused told Micallef that he was at home, alone. Between 1:00pm and 1:30pm, he said that a friend of his, Blake Forest, was with him. He did not give any evidence in response to the evidence of Robyn Pollock’s statement to Micallef over the telephone that she was “at Dan’s place” (though the accused did say that he was not aware of any other ‘Dan’ that Pollock knew).

150. The accused recalled that Kira returned home from work around 2:00pm or 2:05pm. When she arrived, he said that he and Forrest were sitting on the front veranda.

151. The accused recalled Kira reminding him that they were to visit Lisa and Henry McPherson that afternoon. The McPhersons had a daughter, Charlotte, who was celebrating a birthday that afternoon. The McPhersons lived close to the Pacific Highway, north of Wyong; not that far away from Watanobbi. It was later identified as being about 5 minutes away from the accused’s place. The accused said that he and Kira arranged to drop off a birthday present, which was to be opened later in the day when a party was to occur, after they had collected the accused’s children from day care. It was suggested in cross-examination that this was unnecessary; if the only reason for dropping it off was to limit the risk that the accused’s own children opened the present – there was no reason to drive over to the McPhersons to confirm details for the party later in the afternoon: this had already been arranged between Lisa McPherson and Kira earlier in the week. The accused could not recall what the present actually was. He said that their plan was to drive to the McPhersons to drop off the present, and then go on from there to the accused’s parole appointment, which he said was scheduled for 3:00pm. He recalled that they arrived at the McPhersons’ place, for the present drop-off, around 2:15pm or 2:20pm. He recalled that they stayed there for 15 to 20 minutes.

152. After departing the McPhersons place, the accused recalled that they went to go to the probation and parole office in Wyong. The accused said that Kira was driving. The accused was dropped off so that she could park the car. The accused acknowledged his appearance, as well as that of Kira (later), in the CCTV footage. He estimated arriving at the parole office between 2:40pm – 2:45pm. He recalled receiving the call from Micallef at 2:42pm whilst he was in the waiting room of the parole and probation office.

153. The accused explained that he had attended that office the previous afternoon, but was informed that his supervising officer, Kahlia, was sick. He said he was told to come back the following day at 3:00pm, but he arrived early.

154. Under cross-examination, the accused was referred to call records which showed that he had made several phone calls to the parole and probation office early in the evening of 18 April 2018. Case note records indicated that he was scheduled to meet with his supervising officer (Kahlia Henderson) at 6:30pm that evening. He called the office at 6:47pm that evening, then again at 9:45am and 10:08am on Thursday, 19 April 2018.

155. After having his parole visit, the accused said that he and Kira left to collect their children from the Wyong day care centre, before going back to the McPhersons for the birthday party. He recalled that there were about 10 at the party.

156. The accused estimated that, ordinarily, it was a 5-10 minute drive from his place in Watanobbi to the parole and probation office in Wyong that he visited. The distance from the parole and probation office to Strathavon was ordinarily 10 minutes. Later in re-examination, this evidence was qualified. That is, at about 2:15pm, if he was travelling from Strathavon to his place at Watanobbi, he estimated that it would take 20 minutes. That evidence was further qualified, in the sense that it was based upon there being no traffic. The accused said that there were a number of spots along the drive back where traffic might be ‘clogged’ up at about that time. If that was so, the trip from Strathavon to Watanobbi might take between 25 minutes or half an hour.

157. Insofar as the trip from his place in Watanobbi to the probation and parole office was concerned, if he left there at about 2:30pm on a weekday, it might take about 15 minutes.

Post-assault telephone intercepts and SMS messages

158. The accused said he was aware that Micallef stayed up around Aberdeen or Muswellbrook on weekends. The time distance for travel between Watanobbi and Aberdeen was a couple of hours. The accused was familiar with Micallef’s driving of the white commodore station wagon. He presumed that Micallef owned it.

159. The accused and Micallef exchanged numerous telephone calls and SMS texts on the subject of both of them going up to Aberdeen.

160. At 3:24pm, he received Micallef’s text. He said that he was still in the parole office at this point and only saw the message later on. The accused said that he was happy to go up north (to Aberdeen) with Micallef.

161. He received a call from Micallef at 3:49pm. He told Micallef that a “mate” was going to come to see him. That was a lie. He asked Micallef when they were “goin’ for a cruise … up top”. I understood this to be code for the drive northward to Muswellbrook. He said he told Micallef that he was going to drive with him up to Muswellbrook, but was uncertain as to where they were going. He understood that he was planning to have a ‘bbq’ with Micallef. Asked what, if any, other purpose he had for a car trip taking between two and a half hours, the accused said that he understood that Micallef was wanting to drop his car off and swap it. There was discussion about whether Kira (who did not like Micallef and did not think that the accused should mix with him) would go with him. Whether she went might determine whether he would drink. In the event, she stayed at home and looked after the accused’s children.

162. The accused said in cross-examination that the birthday party at the McPhersons place wrapped up at around 4:00pm. At about 3:55pm, the accused told Micallef that a mate of his was “poppin” over to see him and that he expected to be within him for 20 minutes. That was another lie. The accused was probed why he just did not tell Micallef that he had been at a child’s birthday party? Did he in fact go to any birthday party at all? The accused maintained that he did. But given that he was still in the parole office at 3:24pm in Wyong, if he did attend the birthday party at the McPhersons’ place, the temporal sequence suggests that he could not have stayed there for longer than half an hour if he had left by 4pm. That would have been a short stay for a birthday party for ostensibly close family friends.

226. There was evidence after the event which also points to the accused’s presence at Strathavon at the critical period. The calls that Micallef made on his phone, at 2:34pm (to Ratahi), 2:37pm (unanswered but to the accused) and 2:39pm (to Ratahi), viewed in context, implicate the accused as being a participant in the assault. Specifically, the “mate” that Micallef was referring to in the last of those messages (being the one who he had “done it with”) was the person who he had tried to ring a few moments before. That was the accused.

227. Counsel for the accused referred me to a message Micallef sent, by phone, to Brendan Kunde at 4:27pm on the afternoon of 19 April 2018. Contrary to the submission advanced on the accused’s behalf, I construe the reference to “he doesn’t know what we did” to be a reference to the owner of the vehicle, Mr Ratahi – his “mate up north” – not the accused. The statement was made in the context of planning by Micallef to get the car back to the owner. A short time before the statement was made, Kunde suggested to Micallef that “it’d be better if he could come down to you”. That is also a reference to Ratahi. I note the circumstance that although the accused was led through, by his Counsel, many of the transcripts of the telephone intercepts, he was not led through that particular intercept. It was curious that his Counsel would then cite the message in closing submissions, to argue that it was exculpatory. I did not regard such reliance as reflecting well on the accused’s credibility.

228. Then there was evidence of the accused’s assistance to Micallef to dispose of the white commodore wagon. I regard as far-fetched and fanciful any suggestion that the only reason for the accused to undertake, in convoy with Micallef’s vehicle, a two and a half hour drive in his vehicle, in the dark, was for the accused to have dinner with Micallef and a stranger. Perhaps apprehending that absurdity, it was suggested on the accused’s behalf that the accused’s agreement to drive was explicable by a wish to assist Micallef to undertake a car swap. The SMS text messages and calls clearly indicate Micallef’s wish to have the white commodore station wagon “detailed”. The meaning of that word was clarified in Micallef’s message to Ratahi at 2:45pm: he told Ratahi that he “want my inside and my outside detailed. Fresh, clean, fuckin everything” and, I infer, devoid of any residual trace of his, or his fellow assailants in the car. I do not accept as a reasonable possibility that, in the circumstances, the accused consented to providing this assistance to Micallef out of mere friendship. Objectively, it was a gross imposition upon him and his time and intruded upon his capacity to look after his children after his partner had, essentially, been out all day. The accused was aware of his partner’s antipathy towards Micallef. Neither the accused, nor his partner, knew of the person whose Muswellbrook destination they were to arrive at. If the only purpose was a car swap, on the accused’s account, there was no apparent urgency (consistent with innocence) for getting the white commodore station wagon back to Muswellbrook that night. The telephone transcript and SMS messages make it plain that Micallef was concerned about the report that he had received, from Pollock, that the car that had been used to convey the assailants had been spotted at Strathavon. As indicated below, I consider it probable that the accused was taken in the white commodore station wagon back home after the assault. That is to say, he was probably in the vehicle twice, but at least, once during the day. He had a direct interest in seeing to it that it was put beyond the reach of the police or, if not, at least, ‘detailed’ in a way to remove any physical connection of him to the car.

229. The assault had concluded by 2:16pm. There was time for the accused to be driven to his parole appointment soon after 2:40pm, either directly from Strathavon (by the white commodore wagon) or by Ms Williams; the latter alternative being more likely.

230. It will be readily seen that I find that these matters, viewed in their totality, disprove the hypothesis that the accused was in Kira Williams and Lisa McPherson’s company in the period from 2:00pm to shortly before 2:30pm. They are, in large measure, objective facts, or testimony corroborated by objective facts, which overwhelm the undocumented and unreliable recollections of witnesses called for the accused; whom were (respectively) interested in or sympathetic to the accused’s predicament. In particular, I consider that although Ms Williams and Ms McPherson honestly believed that the accused attended for the dropping off of the present, they were mistaken. If, as I accept, the only purposes of going to the McPhersons’ at this time were to drop off a present and confirm times for the gathering, the accused had no apparent reason to be there for either of those purposes. His attendance might have afforded him opportunity, albeit very briefly, to socialise with the McPhersons (and his partner), but that opportunity was available for him for socialising by his attendance at the gathering later in the afternoon. His evidence disclosed little real recollection of what the present consisted of, or its size or shape. He did not instigate arrangements to attend the gathering. The only real reason to be there at all was for him to get a ride thereafter to his probation appointment. It was easy enough for Ms Williams to retrieve him on the way back home after seeing Ms McPherson.

231. It is possible that before leaving at 2:00pm, the accused saw his partner. If he had told her that he was accompanying Micallef and others in a white commodore station wagon, conceivably, Kira may have lodged some form of protest. But as was demonstrated later in the evening, the accused was quite capable of standing his ground and be willing to assist and accompany Micallef in activity notwithstanding his partner’s wishes to the contrary.

232. I find that it is more likely than not that the accused was driven back to his home by Micallef; rather than to the probation and parole office. There is no evidence to indicate any request made by the accused towards Kira Williams to collect him from Strathavon. There was no call record between them. Further, given the natural incentive for the driver and occupants to get away from Strathavon as soon as possible after 2:16pm, had the driver (probably Micallef) dropped the accused off at the parole office it is likely that he would have been probably around 2:25pm if he was dropped off by the station wagon; when the evidence suggests that he was there shortly after 2:40pm.

233. I am satisfied that the weight of the Crown case is such that the Crown has disproved the alibi of his attending the McPhersons’ place to drop off the birthday present beyond reasonable doubt. I remind myself, again, however, that it remains necessary for the Crown to still establish its case to the requisite standard after the rejection of the alibi evidence.

234. It is now necessary to concentrate on the findings necessary to determine whether the Crown makes out its case in the further factual findings that are to follow.

Monro’s familiarity with the accused

253. I find that Monro knew of the accused many weeks before 19 April 2018. He recognised both his face and his voice. He had met him at a pub and had been to his house; probably more than once. When he met him at the pub, there was conversation between the men, but the evidence is insufficient to indicate the nature and content of that conversation. Monro’s recognition and familiarity with the accused was evidenced again when he saw him when placed in custody in December 2019, where they conducted verbal and non-verbal communications. That did not, however, impair the probative value of Monro’s identification of the accused in a photograph since they were reasonably well acquainted – by reason of multiple meetings – in a period of time not long before the assault. Subject to the questions of whether he had the time to see, or was able to see, the accused during the assault, I find that it was likely that he would have recognised the accused within the group of people who attacked him if the accused was part of the group.

Monro’s apprehension of the accused’s threat to him

254. I find that Monro visited Robyn Pollock, then a resident of Strathavon, on the afternoon of 19 April 2018 and the day before. He overheard a telephone conversation between Pollock and the accused in which the accused indicated that he and other unidentified males were planning to ‘get him’.

255. I infer that Monro had arranged to meet with Pollock on the afternoon of 19 April 2018. It was not a spontaneous decision or co-incidence that he arranged to meet her on that occasion; although it was curious that he should do so, having heard the accused confide in Pollock of the threat that the accused and others were intending to get him. It was also not a co-incidence that when he went there, there were a group of males waiting for him.

The accused’s drive to Strathavon in the station wagon

256. At about 12:50pm the accused had a telephone conversation with Kirk Micallef. Shortly, both of them and Robyn Pollock liaised amongst themselves with the intention that the accused would be present at Strathavon around 2:00pm and that Micallef would drive the accused there from the accused’s place at Watanobbi.

257. I find that at 2:00pm on 19 April 2018, a white commodore station wagon with registration plate BKA81H arrived at the accused’s premises at Watanobbi. I infer that Micallef was the driver. There were at least 2 other males. They greeted the accused, the accused left his home, entered into the car and the car was driven away from his home. It will be noted there that notwithstanding my reservations of him, I accept the evidence of Mr Tomlinson in this respect; corroborated as it (partially) is by his text message. The suggestion that he sighted the vehicle the night before on 18 April 2018 was only a bare possibility. I also find that, at least in relation to his text at 2:10pm, that was an essentially contemporaneous record of his sighting of the white station wagon.

258. The same white station wagon made its way to Strathavon, where the vehicle was witnessed by Michelle Wilkie, another Strathavon resident, prior to 2:16pm. The distance between Watanobbi and Strathavon was only about 2:46km (Exhibit 6). Barring anything unusual, there was enough time between 2:00pm (when Mr Tomlinson sighted the station wagon at Watanobbi) and 2:10pm, for the car to drive from Watanobbi to Strathavon for an orchestrated assault to have occurred. The driver of that car, probably Micallef, and the group were driving with intent. It is likely that Pollock had indicated to Micallef when Monro was likely to be at Strathavon. The accused had other plans for the afternoon. If it was necessary for them to ‘speed’ to get there on time, I have no doubt that they would have.

259. Upon arriving at Strathavon, the occupants of that vehicle, including the accused, lay in wait.

The lead up to the assault

260. I find that somewhere between 2:00pm and 2:15pm, Monro approached the building in which Pollock was located. I infer that he did so with some apprehension: aside from overhearing what the accused had said to Pollock the previous afternoon, he also had a penknife in his pocket. I do not accept his evidence that he did so because of a concern to secure the penknife on the basis of his living an itinerant life: I consider it much more likely that he had it upon him to protect himself and, if necessary, engage in self-defence (if he could). He was more likely apprehensive about being attacked. When he saw two men near the building within Strathavon, it was more than merely ‘gut instinct’ that there was trouble ahead; rather it validated his sense of apprehension. At any rate, when he ducked a punch in his direction by one of the males (which itself also tended to show Monro’s sense of anticipation), Monro turned and ran down the gravel roadway from Strathavon leading to Boyce Avenue. He ran because, to that point, he had survived a close shave, and he sensed that the two males would come after him.

261. But in the process of running down the driveway towards Boyce Avenue, Monro slipped on the gravelly road and stumbled. Very quickly, the occupants of the station wagon, including the accused, descended upon him. An initial assault, consisting of kicks and punches, occurred within 10 metres inside the Strathavon precinct from the entrance where the steel fence was located. There were droplets of his blood within this area from Monro’s head. This part of the assault occurred in view of Michelle Wilkie. Monro was picked up by the group of assailants and carried by them to outside the Strathavon and was pushed down to the ground. Further kicks and punches were rained upon him. There were also droplets of Monro’s blood in that area. This particular assault was witnessed by Stacey Davis. An assault was also witnessed by Joan Davis, but not in the manner that she described: I do not accept her evidence that Monro was pile-driven, head first, into the ground.

262. As indicated, I find that the accused was part of the group of assailants. I accept Monro’s evidence identifying him as being present within the group. There is a strong possibility that the accused was one of those who kicked or punched Monro. I agree with the Crown’s submission that although it is difficult in this type of case to precisely pinpoint the moment Monro identified the accused, the fact remains that only he (and Hodder) were specifically identified as being there. Although Monro was doubtless trying to shield himself from the blows, that did not preclude him from identifying someone whom he knew. Indeed, the recognition that one of his assailants was someone whom he knew would, I consider, create a vivid impression on a victim in his position. This was a frenzied scene. The accused was made privy to a plan to bash Monro. In such circumstances, it would have taken unusual self-control and restraint to refrain from joining in the attack. Further, there is the statement in Micallef’s telephone call to Ratahi not long after the attack (2:34pm) that he and “this other bloke” had “hurt” the victim. Read in the context of other calls and messages between Micallef and Ratahi around this time, I find that Micallef was referring to the accused as “this other bloke.” Later in one of the telephone intercepts, Micallef identified (in his conversation with Ratahi at 2:39pm) his mate, who I took to be the accused, to have actively participated in the attack. For example, in his phone call to Ratahi at 2:45pm, Micallef indicated that he had just spoken to “his mate” who had to go to parole. The statement constitutes a statement by another person binding upon the accused as an admission as conduct engaged in in furtherance of a common purpose of an agreement to assault Monro. Nevertheless, Mr Crown acknowledged in his closing address that there was doubt that the accused physically participated in the assault. I consider that there is reasonable doubt whether the accused himself was an actual assailant.

Whose knife was used to inflict the wound?

263. The Crown argued that this question was something of a red herring, since, on its case, it did not matter how the wound was inflicted and it was therefore irrelevant what level of knowledge (i.e. intention, or foresight) that the accused had as to whether a knife would be used to inflict grievous bodily harm, or actual bodily harm. Nevertheless, although the accused admits the circumstances that a wound was inflicted upon Monro, or that Monro was wounded, it is pertinent to say something as to how that came about.

264. I find that as he struggled to get up, one of the group of assailants, very likely Hodder, struck Monro in his right side with a knife. I accept Monro’s evidence that he heard Hodder say to him “that’s for calling me a dog” (emphasis supplied). This was a reference, or more particularly the asserted justification, to the stabbing. Although he did not appreciate it at the time (this only occurred when Monro was aided by Ms Davis and she referred him to the wound) this statement followed at about the point when the knife was inserted. It was, very probably, the final act of the assault. It marked a vicious end to a brutal gang attack.

265. There is no evidence before the Court to show whether the accused (or any of the other group members) actually knew that Hodder had knifed Monro. There was no evidence from Monro that he heard the accused, or one or more of the other assailants, encouraging Hodder to knife him. There was no evidence of where the other assailants actually were when the knifing took place: whether they were passively looking on or had already dispersed by then, leaving Hodder to his own devices. I note, in the latter respect, that when Micallef later reported the attack to Ratahi on his phone, he did not mention the knife attack. Nor is there other evidence of other objects or weapons that could have been used to wound Monro in the assault.

266. I find that the white station wagon took off fairly rapidly after the assault – there was no incentive for the assailants to linger.

267. I find that the accused attended the parole and probation office (at 4 Anzac Avenue) a little bit later than 2:40pm: the accused had received a telephone call from Micallef at 2:42pm. This timing takes into account some period of delay between the time that the accused entered into the office and the time administrative staff attended him. Officer Bartley, when recalled, gave evidence that this office was in the vicinity of the Wyong Centrelink office and Race Club and Function Centre. This appeared to be approximately a drive of 1.5 km away from Strathavon (and almost the same distance from his home in Watanobbi). There was adequate time for the accused to get there after the assault, which had concluded by 2:16pm; from Strathavon or from Watanobbi.

268. I find that the telephone intercepts and SMS text messages exchanged between Micallef and the accused indicate arrangements put in place not only to return the white commodore wagon to its registered owner, Ratahi, in Muswellbrook that night, but patent anxiety in Micallef about the need to swap number plates on that car. A feature of those messages was Micallef’s communicated request to Ratahi about the need to ‘detail’ the car. That is, to remove traces that might identify the occupants of the car during the afternoon or, more specifically, Micallef and his “mate”, the accused.

269. As I have indicated in my consideration of the alibi evidence, I regarded the evidence and explanation of the accused after the assault for the content of the telephone and SMS intercepts as being devoid of credibility.

DETERMINING THE ISSUES

270. In light of the factual findings, I return to consider and determine the principal issues that I have identified.

Count 1

271. First, the accused was present at the time and place of the assault.

272. Secondly, Monro was wounded.

273. Thirdly, the accused was a participant in a group attack on Monro at Strathavon on the afternoon of 19 April 2018. He was part of the group that held up Monro, removing the practical possibility that he could defend himself from the blows being inflicted upon him by others.

274. Fourthly, the accused and (at least) Micallef agreed to inflict harm upon Monro. This attack was pre-meditated and that it at least involved Micallef. Pollock was part of the enterprise as well. It was an agreement, to put it in colloquial terms, to ‘bash’ Monro. This much is partly established by the telephone intercepts prior to the assault, in which times were arranged for the accused to be picked up at his home and taken to Robyn Pollock’s place in Strathavon. The agreement is also partly to be inferred by the acts of the group of 5 (or 6) persons engaging in the assault and Monro’s identification of the accused (and Hodder) as being among that group.

271. Further, the agreement is partly to be inferred by the subsequent conduct of Micallef and the accused, conspiring amongst themselves, to dispose of the white commodore wagon in a way that might limit the risk of police detection. What I have described as the ‘pre-assault’ telephone intercepts (and SMS messages) were statements by others that are taken (by the operation of s 87(1)(c) of the Evidence Act) to bind the accused as they were stated in furtherance of the common purpose of harming Monro.

272. The post-assault telephone intercepts and SMS messages constituted statements in furtherance of a different but related purpose, as between Micallef and the accused, of evading police detection. It is recognised that an accused’s ‘consciousness of guilt’ may be established by the destruction, or attempted destruction, of evidence after an offence (R v Nguyen [2001] VSCA 1[7]). I find that the accused agreed to assist Micallef to take the white commodore station wagon a long way away from Strathavon because he was concerned that its discovery and subsequent examination by the police might implicate himself (or himself and Micallef) in the use of that car for the purpose of the assault upon Monro. It is an admission, by conduct, that the accused was aware that the car was connected to the assault and provides some additional support for the view that he was in that car, as Mr Tomlinson had said and/or, alternatively, after it was used to flee the scene of the crime.

     7. Followed in McKey v R [2012] NSWCCA 1 at [26].

273. The question, however, is whether the agreement was to inflict really serious bodily injury. As I noted earlier (at [24]), with reference to what the Court of Criminal Appeal (by majority) said in Swan, what distinguishes this form of injury from actual bodily harm is the injury and its physical effects.

274. In my opinion, there is a real question whether Monro did in fact suffer grievous bodily harm. Notwithstanding the wound, there was no evidence of on-going operative treatment or medical consultation, after a week beyond the attack. When he went to the hospital the second time on 26 April 2018, I infer that this was likely because of the infection to the wound caused by the stabbing. When he was released (after the second visit), no medical plan for treatment was provided for him. There is no evidence he visited a doctor after leaving hospital for the second time. Just as the nature of the acts performed in concert provides an inference of an agreement to do the acts, so too the nature of the injuries actually suffered provides an inference to the nature of the agreed harm to be inflicted. In this case, the stab wound was an outlier where the essence of the injury suffered was traumatic force applied to the face and head.

275. The actual injury and its effects which resulted from the assault are not necessarily decisive of the question whether the agreement was to inflict grievous bodily harm, but they are probative of the nature of the harm that the confederates agreed to inflict upon Monro. Further, even if the wound resultant from the stabbing could be regarded as amounting to grievous bodily harm, there is no evidence that the accused, or any of the other assailants agreed with, or gave the ‘green light’ to Hodder to stab him. There was no evidence to suggest how the assault was to be carried out at all. Kicking and punching a victim, even by multiple assailants and even if it is done repeatedly is, in my view, consistent either with the intention of inflicting grievous bodily harm or actual bodily harm.

276. I am not satisfied beyond reasonable doubt that the agreement to harm Monro amount to an agreement to inflict grievous bodily harm.

277. It follows that an essential element of Count 1, viewed under common enterprise principles, is not made out.

Count 2

282. I have already indicated my acceptance that the Crown has established, beyond reasonable doubt, that Monro was wounded.

283. As is apparent from my reasoning referred to just above, I accept that he suffered actual bodily harm. Blood was spilt and abrasions resulted from the assault. His shoulder became dislocated. It appears that several of Monro’s teeth fell out as a result of the attack.

284. I am further satisfied that the agreement to harm Monro was, specifically, an agreement to inflict actual bodily harm. The attack featured punches and kicks being repeatedly administered by multiple assailants to Monro’s face and head. These punches and kicks supplemented other violent acts such as dropping Monro to the ground. Being a gang attack, for all intents and purposes, Monro was left defenceless against such attacks.

285. My difficulty is for the Crown to establish that the wounding of Monro fell within the scope of the enterprise or that the accused foresaw that Monro might be wounded even if the wounding fell outside the scope of what was agreed. It is necessary for the Crown to establish that the accused agreed with someone else that Monro would be wounded or adverted to the possibility of Monro being wounded.

286. There was no evidence as to the manner in which the attack was to be carried out. There was nothing to suggest any planning by the accused and Micallef as to the means by which the harm was to be inflicted. All that is known is that punches and kicks were rained down on Monro. Brutal though they may have been, the blows themselves were not particularly the result of sophisticated planning. More pertinently, they were consistent with the infliction of traumatic force; but not necessarily penetrative force; to adopt a distinction drawn by Dr Scott. In particular, I accept that there is no evidence to suggest that the accused, or anyone – other than Hodder – agreed to any implement or instrument being used in the assault.

287. I am not satisfied to the requisite standard that the assailants agreed to, or adverted to the possibility of Monro being wounded.

288. I am not satisfied that the Crown has proven beyond reasonable doubt Count 2.

Count 3

289. For reasons previously supplied, I find that the Crown has made out that the accused, in the company of Micallef and Hodder, were part of an enterprise to assault Monro. Micallef drove the commodore station wagon to the scene of the crime and, in concert with the accused, attempted to dispose of it. I accept Monro’s identification of Hodder (along with the accused) as part of the group. He had previously met Hodder in jail. Amongst others, they agreed to assault Monro.

290. I find that Monro was assaulted and suffered actual bodily harm as a result.

291. I find that the accused was present during the assault.

292. Each of the elements of this offence are made out.

ORDER

293. On Count 1 of the indictment, being that on 19 April 2018, in Wyong in the State of New South Wales, the accused, Daniel Michael Ross, wounded David Monro with intent to cause him grievous bodily harm, I find that the accused is not guilty.

294. On Count 2 of the indictment, being that on 19 April 2018, in Wyong in the State of New South Wales, the accused, Daniel Michael Ross, in the company of Kirk Micallef and Shannon Hodder, recklessly wounded David Monro, I find the accused is not guilty.

295. On Count 3 of the indictment, being that on 19 April 2018, in Wyong in the State of New South Wales, the accused, Daniel Michael Ross, in the company of Kirk Micallef and Shannon Hodder, did assault David Monro, thereby occasioning him actual bodily harm, I find that the accused is guilty.

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Endnotes

Decision last updated: 13 May 2020