R v Saliba (No 3) - [2025] NSWSC 296

Supreme Court

New South Wales

Medium Neutral Citation: R v Saliba (No 3) [2025] NSWSC 296
Hearing dates: 11 – 14 March 2025, 17 – 20 March 2025, 24 – 26 March 2025
Date of orders: 2 April 2025
Decision date: 02 April 2025
Jurisdiction: Common Law
Before: Yehia J
Decision:
Dominic Saliba found not guilty of the murder of Bailey Jones, but guilty of manslaughter.

Catchwords:
CRIMINAL LAW – murder – trial by judge alone – alleged stabbing by the accused of his cousin – whether it was a deliberate act of the accused that caused the fatal wound – whether the accused intended to cause grievous bodily harm – manslaughter by unlawful and dangerous act as an alternative to murder – whether the prosecution has excluded the reasonable possibility that the accused acted in self-defence – not guilty of murder – guilty of manslaughter

Legislation Cited:
Crimes Act 1900 (NSW), ss 418, 419
Criminal Procedure Act 1986 (NSW), ss 132, 133
Evidence Act 1995 (NSW), s 38

Cases Cited:
R v Katarzynski [2002] NSWSC 613
Sivaraja v R; Sivathas v R [2017] NSWCCA 236
Wilson v The Queen (1992) 174 CLR 313; [1992] HCA 31

Category: Principal judgment
Parties: Rex (Crown)
Dominic Saliba (Accused)
Representation:
Counsel:
K Ratcliffe (Crown)
R Khalilizadeh (Defence)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Hugo Law Group (Defence)

File Number(s): 2022/00386498
Publication restriction: Nil

Judgment

Introduction

This is a tragic case involving the death of an 18-year-old man, Bailey Jones (“the deceased”), upon sustaining a fatal wound to his upper chest on the evening of 9 December 2022. The events on that evening resulted in the arrest and charge of Dominic Saliba (“the accused”) who is the deceased’s cousin. Mr Saliba was only 20 years old. He was charged with murder.
The family and friends of the deceased as well as the family and friends of the accused have followed the proceedings and are obviously interested in the outcome. I acknowledge the distress and anguish the evidence may have caused interested parties. The deceased’s family have lost a loved one. That loss was far too premature and in circumstances where the deceased was only 18 years old and had his whole life to look forward to.
The accused’s parents and family have sat through the trial of their son charged with murder and are no doubt worried about him and anxious about the result of the proceedings.
It must be noted from the outset, however, that notwithstanding the tragic events, my role as the tribunal of fact is to firmly put aside any sympathy that I may have for anyone either directly or indirectly involved in the trial.
I must also put aside any prejudice that I may hold in relation to the subject matter of the trial, or any other aspect connected to the trial. As I will address in more detail below, my role is to consider the evidence objectively, impartially, and forensically in order to determine whether the prosecution has established its case against the accused to the high standard required by law, namely, beyond reasonable doubt.
It should also be observed that unlike a jury trial where a verdict of guilty or not guilty is returned with no more said about the reasoning underpinning the verdict, I am obliged to set out my findings and the reasons for my verdict or verdicts. In doing so, I must consider the evidence dispassionately and forensically.
In conducting that process, I must proceed on the evidence that I accept and according to the applicable legal directions that I am bound to apply.

Procedural History

An application was made by the accused to proceed by way of judge alone trial, pursuant to s 132 of the Criminal Procedure Act 1986 (NSW) (“CPA”). On 6 March 2025, Hamill J made an order that this trial proceed as a judge alone trial. An indictment containing one count of murder was presented by the Crown on 11 March 2025. The accused pleaded not guilty to murder. The parties accept that manslaughter is available as an alternative, even though it is not a count on the indictment.
The trial proceeded before me, the evidence concluding on 25 March 2025. The closing addresses proceeded on 26 March 2025. The matter was adjourned for verdict and reasons to 2 April 2025.
I now proceed to deliver my reasons and pronounce verdict or verdicts. I will proceed by setting out the relevant legal directions, a summary of the evidence and my findings based upon the evidence that I accept. It will only be at the very end of that process that I announce the verdict or verdicts.

Procedure

Section 133 of the CPA requires a judge conducting a judge alone trial to include, in a judgment, the principles of law to be applied by him or her, and the findings of fact upon which the judge relies. Pursuant to s 133(3) of the CPA, I am required to take into account any warnings required by any Act, or law, to be given to a jury in any such case.
I will set out the directions and principles of law to which I have had regard. These comprise of the normal directions that I would usually give to a jury in any such case.
I am the tribunal of fact and the tribunal of law. As the tribunal of fact, I am required to evaluate the evidence in a common-sense, yet impartial, and dispassionate way, having regard to my understanding of people and human affairs. I do not act on suspicion. I do not act on what I believe probably might be the case.
As indicated earlier, I must put aside any sympathy I might have for anyone involved in the trial. I must put aside any prejudice I might have, including any prejudice having regard to the subject matter of the trial. I must also put aside any publicity about this case or similar allegations in other cases. It is incumbent upon me as the tribunal of fact to approach the issues in this trial dispassionately and objectively. My findings and ultimate verdict, or verdicts, must be based only on the evidence that has been adduced in the trial. To do otherwise would be contrary to the solemn responsibility I have to return verdict, or verdicts, according to the evidence.
I emphasise that it is no part of my role to engage in a process of deciding who the more likeable witness is, or to allow sympathy, or prejudice, to infect my deliberations.
What I bear in mind from beginning to end, is that I must approach the evidence clinically, objectively, and forensically.

Assessment of Witnesses

I may believe the whole of what a witness says, I may disbelieve the whole of what a witness says, or I may believe one part and disbelieve another part of a witness’s evidence. Obviously, a witness may be honest and accurate, honest but mistaken, or dishonest in relation to any one, or more, aspects of the witness’s evidence.
Each witness has given evidence about things they said they remembered. How well a person might remember something depends upon many different factors, including that person’s capacity to lay down an accurate memory in the first place; their capacity to retain that memory and its associated detail; and their capacity to recall the memory and articulate it.
The subject matter of an event is also a relevant factor to memory. Some events themselves are of little, or no, consequence, and any memory is retained for a short time only and then gone. Other events are of greater importance in consequence, such that one might remember them for a relatively long time, although, perhaps over time, aspects of the detail of the memory, or the parts one considers to be of no real consequence, might fade.
All of these common-sense factors might impact what someone might be able to remember of an event, or how clearly, they might remember it. What I must decide in relation to the evidence of a particular witness, is whether I consider their evidence to be sufficiently reliable such that I can act upon it.
Reliability depends upon two quite different, but overlapping, factors. One factor is the witness’s honesty. The other factor is the witness’s accuracy. There are many factors that can have a bearing upon a witness’s honesty. In considering the question of honesty, I might consider the impression the witness made upon me. Demeanour and impression are important and valid factors to take into account. Did a particular witness impress me as someone doing their best to be truthful, or did the witness impress me as someone deliberately trying to deceive me? Did the witness appear evasive, or prone to exaggeration or embellishment? Did the witness demonstrate an ability to listen to the question and answer what was asked? Did the witness concede that he or she has lied previously?
Although demeanour and impression are matters that I am entitled to take into account, I must bear in mind that witnesses can be affected by the stress and anxiety of giving evidence in legal proceedings. A witness might be anxious, worried, or embarrassed. These observations apply equally to prosecution and defence witnesses. Demeanour and impression alone do not determine the honesty, or accuracy, of the witness’s evidence.
If I conclude that a particular witness has been doing his or her best to be honest, I will need to move to the second aspect of reliability, which relates to a witness’s accuracy. A witness can be perfectly honest and accurate, or perfectly honest, yet completely, or partly, inaccurate.
To determine how accurate a particular witness’s evidence is, I may look to a number of factors. How carefully did the witness observe the event, or the matter, about which they were giving evidence? Was the witness calm and composed at the time of the event, or affected by any emotion such as stress, panic, or fear, or by an intoxicating substance, such as alcohol, that might have impacted their powers of observation and/or laying down of an accurate memory?
How important to the witness were the surrounding details of an incident, or event, such that the witness focused on committing to his or her memory all aspects of the event, as opposed to what the witness perceived to be significant parts of the event? Has the witness provided a consistent account of the incident or event? Is there evidence capable of giving rise to an inference of suggestibility, or contamination, such as to make the evidence, or parts of the evidence, of a particular witness unreliable?

Standard of Proof

This is a criminal trial and the burden of proving the guilt of the accused rests firmly, and only, on the Crown. That onus is in respect of every element of the charge. 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 in relation to the count on the indictment, and to prove it beyond reasonable doubt. That is a very high standard of proof the Crown must achieve.
The words “beyond reasonable doubt” are to be given their ordinary English meaning. It is, and always has been, a critical component of our system of justice that persons tried in our courts are presumed to be innocent unless, and until, they are proven guilty by the Crown beyond reasonable doubt. Expressed differently, I must consider whether there is any reasonable possibility that the accused is not guilty. If the answer is yes, then the verdict is not guilty. If the answer is no, then the verdict is guilty.
That said, whilst the onus of proof is on the Crown to prove the guilt of the accused beyond reasonable doubt, that does not mean that the Crown has to prove every single fact, or issue, beyond reasonable doubt. The onus is on the Crown to prove the elements of the offence beyond reasonable doubt.

Inferences Direction

I direct myself that my function as the judge of the facts, in this case, extends beyond coming to a conclusion as to whether I find that any particular fact has been established by the evidence. My function also extends to drawing reasonable inferences or conclusions from the facts I find established.
In a criminal trial, I must be satisfied of the guilt of the accused beyond reasonable doubt. Amongst other things, that means that I should be extremely careful about drawing any inference. I should examine any possible inference to ensure that it is a justifiable inference. In the context of a criminal trial, I should not draw an inference from the direct evidence unless it is a rational and justifiable inference in the circumstances.

Elements

Murder

The Crown must prove the following elements beyond reasonable doubt:

that Bailey Jones is deceased;

that the accused caused his death by a deliberate act or acts; and

that at the time the accused caused Bailey Jones’ death by a deliberate act or acts, he had the intention to kill Bailey Jones, or an intention to inflict grievous bodily harm.

“Grievous bodily harm” is really serious bodily harm. It does not need to be life-threatening or permanent.
Having pleaded not guilty, I must be satisfied of each essential element beyond reasonable doubt. If I find that the Crown has established each of these elements beyond reasonable doubt, and if the Crown disproves self-defence, then the verdict would be guilty.
However, if the Crown has failed to establish beyond reasonable doubt one or more of these elements, then the verdict would be not guilty of murder. I would then go on to consider whether the Crown has established beyond reasonable doubt the elements of the offence of manslaughter.
In the context of this trial, I will also have to consider the issue of self-defence, which will be addressed separately.

Manslaughter

The elements of manslaughter are as follows:

that Bailey Jones is deceased;

that the death of Bailey Jones was caused by an act of the accused;

that the accused intended to commit the act that caused death;

that the act of the accused was unlawful; and

that the act of the accused was dangerous.

An act is “dangerous” if a reasonable person, in the position of the accused at the time the act was committed, would have realised that the act exposed another person to a risk of serious injury. It does not matter whether the accused believed his act was dangerous. The test is whether a reasonable person, that is, an ordinary member of the community in the position of the accused, would have realised, or appreciated, that the act is dangerous.
To establish that the act was unlawful, the Crown must disprove self-defence.

Self-defence

The accused has raised the issue of self-defence. In the event that the Crown has established beyond reasonable doubt that it was the act of the accused that caused the fatal wound (a stabbing in this case), the accused’s case is that he believed that his conduct was necessary to defend himself.
The law recognises the right of a person to act in self-defence from an attack, or threatened attack, even to the point of killing.
This right arises where two circumstances exist. The first is that the person believes that their act was necessary in order to defend themselves. The second is whether what the accused did was a reasonable response in the circumstances as they perceived them.
Although “self-defence” is referred to as a defence, it is for the Crown to eliminate it as an issue by proving beyond reasonable doubt that the stabbing was not done in self-defence. It may do this by proving beyond reasonable doubt that the accused did not believe, at the time he stabbed the deceased, that it was necessary to do what he did in order to defend himself.
Assuming that all the elements of murder are established beyond reasonable doubt, if I decide that the Crown has failed to prove that the accused did not have such a belief, then the appropriate verdict is one of not guilty of murder. If that is the case, it will be necessary for me to consider manslaughter.
As to whether the accused may have personally believed that his conduct was necessary for self-defence, I must consider the circumstances as the accused perceived them to be at the time of that conduct.
It is his perception that must be considered and not what someone else might have perceived. The matter should not be looked at with the benefit of hindsight, but in the realisation that calm reflection cannot always be expected in a situation such as the accused found himself to be in. In hindsight, it might be thought that the accused was mistaken in believing that it was necessary to do what he did, but that does not matter.
If the Crown establishes beyond reasonable doubt that the accused did not personally believe that his conduct was necessary for his defence, then the Crown will have succeeded in eliminating self-defence. Provided all of the other essential elements have been proved, I should find the accused guilty of murder.
On the other hand, if I am not satisfied that the Crown has proved beyond reasonable doubt the first aspect of self-defence, I will then have to consider the second aspect of self-defence, namely, whether the Crown has satisfied me beyond reasonable doubt that the conduct of the accused was not a reasonable response to the circumstances as perceived by the accused.
The issue for me to consider is, having regard to the circumstances as they were perceived by the accused, whether his response was unreasonable, or excessive. Whether it was, or was not, a reasonable one in those circumstances, is a matter for my judgment.
To summarise, there are two parts to self-defence, and in relation to both of them, the Crown bears the burden of proof. It is not for the accused to prove that he was acting in self-defence. It is for the Crown to prove that he was not. This involves two questions:

has the Crown proved beyond reasonable doubt that the accused did not believe, at the time of the stabbing, that it was necessary to do what he did in order to defend himself?

has the Crown proved beyond reasonable doubt that the stabbing by the accused was not a reasonable response in the circumstances as he perceived them?

If the Crown has failed to exclude the reasonable possibility that the accused believed that it was necessary to do what he did in order to defend himself but has established that his response was not a reasonable one in the circumstances as he perceived them, then the appropriate verdict would be not guilty of murder, but guilty of manslaughter.
If I am not satisfied beyond reasonable doubt that the Crown has established one or more of the elements of murder (as set out at [31]), then I would find the accused not guilty of murder and consider the issue of self-defence in the context of whether the Crown has established the elements of manslaughter beyond reasonable doubt.
For the Crown to establish manslaughter by unlawful and dangerous act, the Crown has to establish beyond reasonable doubt that the intended act of the accused that caused death was unlawful. To do so, the Crown must disprove self-defence beyond reasonable doubt.
If the Crown has established beyond reasonable doubt that the accused did not believe that his conduct was necessary to defend himself, then the Crown would have established that the act was unlawful and, assuming I am satisfied beyond reasonable doubt that it was also dangerous, the verdict would be guilty of manslaughter.

The issues as identified by the parties

The Crown alleges that the accused committed a deliberate act by stabbing the deceased and thereby inflicting the fatal wound. The Crown also alleges that that act was accompanied by an intention to inflict grievous bodily harm. The Crown does not allege an intention to kill the deceased.
Ms Khalilizadeh, appearing on behalf of the accused, has clearly identified the issues in the trial. The accused’s case is that he is not guilty of murder and not guilty of manslaughter. There is no dispute that the accused was holding the knife at the time the injury was sustained. The accused does dispute however that the fatal wound was caused by a deliberate act on his part. That is, there is a dispute as to how the deceased was injured and a denial that it was the accused who caused the deceased’s death. The accused’s case is that the deceased advanced on the knife, thereby causing to himself the fatal injury.

With respect to murder therefore, the two key issues in dispute are the nature of the mechanism that resulted in the fatal injury, and intention. The accused denies that he deliberately stabbed the deceased. The accused also denies that he had an intention to kill or cause grievous bodily harm to the deceased.
In respect of manslaughter, the accused disputes that he stabbed the deceased, thereby putting in issue whether it was an act of his that caused death. Furthermore, he disputes that his conduct was unlawful and dangerous.
In respect of both murder and manslaughter, the accused also raised self-defence.
Lastly, the accused takes issue with the Crown’s contention that the body of evidence generally referred to as “consciousness of guilt evidence”, demonstrates a guilty state of mind to an unlawful killing.

Causation

While the precise mechanism does not have to be proved beyond reasonable doubt, the Crown must prove that the deliberate act or acts of the accused substantially contributed to the death of Bailey Jones. Whether the act or acts of the accused relied upon by the Crown substantially contributed to the death of Bailey Jones, is a matter for me to decide on the evidence that I accept is reliable and credible and, to a degree, on a common-sense basis.

Summary of Evidence

There are no eyewitnesses to the act that resulted in the deceased sustaining the fatal wound. Instead, the Crown relies upon a number of circumstances, including asserted admissions by the accused, to establish his guilt. What follows is a summary of the evidence adduced at trial. I will not be reproducing all the evidence. I have had the benefit of the transcript of the evidence during my deliberations.
Dr Bernard I’Ons is a forensic pathologist who was called to give evidence in the Crown case. I intend to summarise his evidence separately in the context of directing myself in relation to expert evidence.
Some of the evidence is not in dispute. The father of the accused and the mother of the deceased are brother and sister. For a period of some five years the families had little or no contact. However, in the 18 months prior to 9 December 2022 (and particularly the 6 months preceding 9 December 2022), the accused and the deceased saw each other regularly and became close.
At the relevant time, the accused was residing at an address in Bomaderry. This was his parents’ house. His parents stayed there occasionally but were not in residence on 9 December 2022. Also staying there at the relevant time was the accused’s girlfriend and two young men. Those men were Jaemon Elfverson and Matthew McAnally.
On 9 December 2022, the accused, his girlfriend and the deceased drove to Stockland in Nowra. They attended Moe & Co., a barber shop where the deceased and accused had a haircut. Mr Elfverson worked at Moe & Co. At about 4:30 or 5:00pm they returned to the accused’s home. Travelling with them was a friend, Lachlan Hannagan (“Hanno”).
On the afternoon of 9 December 2022, the deceased, the accused, his girlfriend, and several young men were present at the accused’s home. All the men were in the garage, talking, listening to music, some drinking, some smoking cannabis. It was in the kitchen area that the deceased sustained the fatal wound. During his evidence, the accused marked the floor plan depicting his movements and that of the deceased at the time the deceased sustained the fatal injury (Exhibit 3).
The mechanism causing that injury, the events that occurred in the minutes that the deceased and the accused were in the house together, and the intention of the accused are all matters about which there is dispute.

Caroline Micallef

The deceased’s mother Caroline Micallef gave evidence that the deceased had been prescribed medicinal cannabis for medical reasons about four weeks prior to 9 December 2022. It was her responsibility to weigh his doses. The deceased was prescribed .15 grams of cannabis per day. He consumed the cannabis in three separate .05 of a gram doses.
In the six months leading up to 9 December 2022, the deceased visited the accused’s home about once a week.

Dylan Thornton

Dylan Thornton gave evidence that he knew the deceased and the accused prior to 9 December 2022. He had last seen the deceased about three or four days before he died. There had been some communications on 9 December 2022 about meeting up on that day. However, Mr Thornton did not see the deceased or the accused on 9 December 2022.
Mr Thornton gave evidence that he had previously seen a knife at the accused’s home and in his bedroom. He described the knife he had seen and there is no dispute that it was the knife that was later seized by police on 9 December 2022 (Exhibit J in the trial).
He was unsure where in the room the knife was when he saw it. He was referred to his statement dated 5 May 2023 in which he told police that the accused would keep the “big knife next to the left side of the bed [closest] to the main door to the room”. The witness accepted that was what he told police. However, he could not now remember on which side of the bed the knife was located when he had seen it previously.
I am satisfied that his best memory was when he gave his account to police. I am satisfied that he had previously seen the knife in the accused’s room on the side of the bed closest to the bedroom door.

Lachlan Hannagan

Mr Hannagan gave evidence that upon their return to the accused’s home, “Jordie” and “Matt” were present. The group of males were “chilling” in the garage. Mr Hannagan was drinking pre-mixed Jack Daniels and Coke. He did not believe that the deceased was drinking alcohol on that day.
Jaemon Elfverson was dropped off at the house where he joined the group. While the group was in the garage, Mr Hannagan observed the deceased and the accused having a bit of “banter”, “taking something” and saying, “this is mine, this is mine”. The deceased picked up a plastic white tub from a table in the garage, saying: “this is mine”. The deceased’s medicinal cannabis was contained in a white canister.
According to Mr Hannagan the initial interaction between the two men appeared to be “mucking around”, or a “spar”, which he initially described as each male punching the air. Mr Hannagan gave evidence: “it was just like more a muck around at the start. Like, one hit for one hit, kind of thing. And then it got a bit serious after, I think, Bailey, like, put it over the top of him and what not. And then it just went south from there”.
An attempt was made by me to clarify what he meant by Bailey “put it over the top of him”. Mr Hannagan could not explain what he meant by that phrase.
After the deceased picked up the plastic white tub from the table, Mr Hannagan observed a change in the accused’s demeanour. He described the accused becoming “enraged”, “geed up” and started to raise his voice.
The “sparring” over the tub lasted for less than a minute, maybe 45 seconds. Mr Hannagan’s account is that the deceased then went into the house through the entrance from the garage to the kitchen, followed immediately by the accused.
He was challenged in cross-examination in respect of his evidence about the order in which the men entered the house. He maintained that it was the deceased who entered the house first, followed by the accused. As will be seen, this evidence is inconsistent with the evidence of Mr Elfverson who said that the accused entered the house first, followed by the deceased.
Mr Hannagan did not see what took place in the house but heard noises that he described as “thuds”. He next saw the deceased coming back into the garage holding his chest. The deceased was unable to speak and looked shocked. Mr Hannagan asked the deceased what was wrong but there was no answer. When the deceased removed his hands from his chest, Mr Hannagan saw blood and observed that the deceased was about to pass out. Mr Hannagan estimated that the time between the two men entering the house and the deceased coming back into the garage in this state, was between 15 to 30 seconds.
Mr Hannagan was one of the individuals who made a triple zero call. Amongst other things he told the operator that: “ah, so my mate slipped… like, we were around the barbecue area”; “he snapped himself”; “he tripped and he landed on a knife”; “like a, like a, like a skewer”. Mr Hannagan asserted that he was told to say these things by the accused.
He was challenged in cross-examination about this assertion. It was put to him that the only thing that the accused said to him was that “he tripped on a knife”. He rejected that proposition.
In his evidence-in-chief, Mr Hannagan refreshed his memory from his statement, before giving evidence that upon the attendance of police, and when asked a question to the effect of who had witnessed the incident, the accused responded: “us three”, referring to himself, Mr Hannagan and Mr Elfverson. The Crown relied upon that representation by the accused as a lie told during a process of weaving a false story about what had happened. Mr Hannagan and Mr Elfverson were not present and did not witness the incident that caused the fatal wound.
Mr Hannagan also gave evidence that before the police arrived, he saw the accused walk to the top of the driveway. The accused was speaking on his phone. Mr Hannagan heard him say: “I fucked up. I fucked up. I fucked up”. His evidence in that regard was not challenged.
Mr Hannagan agreed in cross-examination that “sparring” could also be described as “slapboxing”, that is, where individuals slap each other in a playful way as opposed to seriously attempting to inflict violence.
The witness was played footage depicting him engaging in similar play fighting with the deceased, on the driveway of the accused’s home, earlier that afternoon. A matter of which I am satisfied is that this group of young men engaged in play fighting, also described as slapboxing, on occasion including on 9 December 2022. The slapboxing was a form of physical contact that appears to have been a form of bonding with or relating to each other.
Mr Hannagan’s reliability must be assessed in the context of the whole of his evidence. He was at times certain about an answer, only to be contradicted by objective evidence. For example, he was initially certain that he had assisted the deceased from the garage out onto the driveway after the deceased had sustained the fatal wound. The CCTV footage contradicts that account. Mr Hannagan did not assist the deceased onto the driveway. He was not initially present when the deceased walked onto the driveway after sustaining the injury.
This is an example of where the objective evidence contradicts a witness’s account. It demonstrates that a witness can be certain, and apparently honest, about an account they have given but entirely wrong.
In addition, he agreed in cross-examination that on 11 December 2022 he had contact with Dylan Thornton. He sent Mr Thornton a message: “I was in the garage when it happened, and it got done in the house”. He also messaged: “I don’t remember anything bro, it was a blur to me, especially the last words and stuff”. Although he could not remember the terms of the message, he did not deny its content.
Although Mr Hannagan maintained that the deceased walked into the house first, his evidence in that regard is inconsistent with the evidence of Mr Elfverson, a conflict to which I will return in due course.

Matthew McAnally

Matthew McAnally was one of the young men present in the garage on the evening of 9 December 2022. He was called by the Crown. He could not remember very much at all about the events which are the subject of these proceedings. He said that at the time he was using both cannabis and amphetamines regularly. He was traumatised by the events of that day. He could not remember significant aspects of those events and could not remember much of what he said to the police in his statement dated 13 December 2022.
An application was made by the Crown to cross-examine the witness pursuant to s 38(1)(b) of the Evidence Act 1995 (NSW). The application was not opposed. Leave was granted to the Crown to cross-examine the witness.
Mr McAnally said that he had a poor memory both in respect of what happened on 9 December 2022 and about what he told police in his statement on 13 December 2022. He said that he was in a “bad state of mind” at the time. He was under the influence of drugs and was traumatised by the event. He said that he did not have a clear state of mind when he made his police statement and does not remember making it.
The only detail that he could independently remember was that while seated in the garage smoking cannabis, he saw the deceased walk through the door, move his hand from his chest, and “blood started coming out of his chest”. He remembered the deceased on the ground and the ambulance arriving.
He could not remember seeing the deceased at any time prior to him emerging with his hand over his chest. He was then cross-examined on portions of his statement. He was asked repeatedly whether what he told the police in his statement was the truth. He responded that he did not remember what he told the police so he could not comment whether it was the truth or a lie.
The witness remembered seeing the accused after the deceased was injured. He was standing outside and crying. Under further cross-examination by the Crown, he was referred to his statement where he told police that he saw the deceased walk into the garage through the door into the kitchen. He could not remember making that observation or saying that to the police.
The Crown cross-examined Mr McAnally about lies he told the police when they attended the premises. He maintained that he could not remember what he said to police and could not comment on whether it was the truth or a lie. Eventually he agreed that he lied when he initially told the police that he was on the driveway with Jordan Mitchell, when the deceased came out of the house injured.
Mr McAnally agreed that on 12 December 2022, the day before he made his statement, he attended the accused’s premises so that he could pick up his belongings. He was taken by the Crown to text messages sent by him which suggested a false account as to how the deceased was injured.
He was also referred to listening device product which captured a conversation between himself, the accused, and Mr Elfverson, on 12 December 2022 when he returned to the accused’s home to pick up his belongings. Relevantly, the conversation included the following:

SALIBA: “… that charge it’s, it’s looking like an accident so that’s what it is”.
MCANALLY: “Yeah. I told them I was fucken out on the driveway (IND)… Me and Jordan both did.”
SALIBA: “Say, say you got mixed up. You, your heart was racing cause the fucken. They’ve got cameras---”.
ELFVERSON: “Say you (IND)”.
SALIBA: “The cameras are all on top (IND). Were you there?”.
MCANALLY: “Yeah, yeah”.
…
ELFVERSON: “You’ve done nothing wrong man”.
….
SALIBA: “Just say you don’t yeah. All you, all you do is, wait, bro”.

Although the recording was played and Mr McAnally was provided with a transcript of the conversation, he did not adopt it and claimed that he could not hear himself on the recording and could not remember the conversation.
When cross-examined by Ms Khalilizadeh, the witness’s memory was not much improved. He had a vague memory that prior to the deceased being injured, the accused and the deceased were “mucking around”, pretending to fight.
He remembered that the accused had a money container in the garage but had no memory of either the accused or the deceased holding containers in the garage.
Mr McAnally was not an impressive witness. I am not of the view that he was making a genuine attempt to recall the events he witnessed. His reliability and credibility are diminished in significant respects. Unless supported by objective evidence, in the form of surveillance product or digital communications, I have some difficulty accepting any of his evidence.

Jordan Mitchell

Mr Jordan Mitchell was also present in the garage on 9 December 2022. He was smoking cannabis and drinking alcohol. Almost immediately during his evidence-in-chief, he said that he could not remember the events of 9 December 2022 or making his statements to police on 18 December 2022 and 12 January 2023.
The Crown made an application to cross-examine the witness pursuant to s 38(1)(b) of the Evidence Act. The application was not opposed. Leave was granted to the Crown to cross-examine the witness in relation to both statements and a diagram sketched by him at the time he made his first statement to police.
In 2022, Mr Mitchell was living in Bomaderry. He came to know the accused about six months before 9 December 2022 and became good friends with him. He met a number of other men through the accused. He had known the deceased for some time because they had played football against each other some years before.
Portions of his statements were put to him by the Crown in cross-examination. He responded by claiming that he could not remember the events of 9 December 2022. He was unable to comment as to whether the accounts he gave the police were accurate and truthful because he could not remember.
Relevantly, he told police that “about two or three minutes after, after Bailey had gone inside, he walked back into the garage through the internal door”. “I saw that his face looked really white, he said, ‘I’m going to faint’”.
Mr Mitchell told police that he asked the deceased: “what the fuck happened?” The deceased did not respond.
Mr Mitchell was played his triple zero call. He said he could not remember making it. During that call he told the triple zero operator: “my mate just stabbed himself cause he’d [been] drinking”. It was put to him that that was a lie. He responded: “yeah, I didn’t know what happened, so”.
Mr Mitchell told the police that he had previously seen the accused with the knife that caused the fatal injury. He said: “I noticed it was sitting on Dom’s bedside table in his bedroom”. He agreed that the representation appears in his statement however could not remember, now, seeing the knife previously.
I found Mr Mitchell to be an unimpressive witness. He was not, in my view, making a genuine attempt to recall what he observed. Insofar as his evidence or account to police is supported by surveillance product or digital evidence, it is evidence to which I have had regard. However, in other respects, his evidence is significantly lacking in credibility and reliability.

Jaemon Elfverson

Notwithstanding Mr Elfverson’s admissions to lying to police in his first two statements, he was a more impressive witness than Mr Hannagan, Mr McAnally and Mr Mitchell.
Mr Elfverson was a friend of the deceased. He had met him about 12 months prior to his death. The deceased introduced him to the accused about one or two months prior to 9 December 2022. Mr Elfverson was essentially homeless at the time and was offered a room in the accused’s house. The witness had been staying there for about one week prior to 9 December 2022. When he moved into the house, Matthew McAnally was already residing there.
Mr Elfverson saw the deceased attend the accused’s home regularly. On 8 December 2022, the deceased and Mr Elfverson had slept at the accused’s house and, on the Friday morning, the deceased drove Mr Elfverson to Moe & Co., his place of employment at Stockland. Later that day, at about 3:30pm, the accused, his girlfriend, and the deceased attended Moe & Co. where the two men had a haircut.
At about 5:30pm on 9 December 2022, Mr Elfverson left his work and went to the accused’s home. Upon his arrival there were already a number of young men in the garage including the accused, “Jordie” and “Hanno”. The deceased was also at the house. Mr Elfverson attended with another man, Saxon McCracken.

Mr Elfverson and the other men were in the garage where the deceased shared with them his “medicinal marijuana”. Mr Elfverson said that he had three bongs between the time he arrived at the house and the time the deceased presented with the injury.
The witness gave evidence that he heard laughing and music in the garage. During the late afternoon he saw the accused and the deceased slapboxing. He described slapboxing as slapping each other’s faces with an open hand, “fun like”.
While the men were slapboxing, the deceased picked up a white canister from the table in the garage. Mr Elfverson had seen two white canisters similar in appearance. One contained the deceased’s medicinal marijuana. The other contained the accused’s cash.
During the slapboxing, the deceased dropped the canister he was holding and the accused picked it up and walked inside the house. The deceased followed the accused into the house.
Mr Elfverson remained in the garage with the other men. He smoked another bong. He heard noises coming from inside that sounded like “banging on the walls”. It was about two or three minutes after the accused and the deceased went inside the house that the witness heard the noises.
The deceased then came back out into the garage followed by the accused. The witness observed blood dripping at the deceased’s feet. He was in pain and said: “I need air”. Before the deceased moved out of the garage, Mr Elfverson heard the accused say: “he fell on a knife”. This representation by the accused was the foundation for the false story that was maintained and repeated in the days following the incident.
Upon seeing that the deceased was in pain and bleeding, Mr Elfverson started looking for the deceased’s keys so that he could drive him to the hospital but was unable to find them. Mr Elfverson called for an ambulance. He confirmed that Mr Hannagan was also on the phone to triple zero.
Mr Elfverson said that the reason he told the triple zero operator that the deceased had stabbed himself, by accident, was because he had heard the accused say the deceased had fallen on the knife.
Police eventually arrived at the scene. He admitted that his initial account to police was false. He lied to police in an effort to protect his friends because he thought that they would get into trouble. He also admitted that in his first two statements, dated 11 and 13 December 2022, he was not truthful. He gave an untruthful version in those statements to protect the accused.
The witness was then taken through a number of digital messages and listening device product. When he messaged his girlfriend that “… Bailey just fell on a knife and stabbed himself”, he agreed that that was a lie based on what he had been told by the accused.
When he messaged his girlfriend: “he was being a dickhead and running at Dom, being an idiot and lost his footing and fell on it”, the witness agreed that was also a lie. He had not seen the incident. He gave evidence that he was not told to say those words but thought that was what happened when he heard the accused say that the deceased fell on the knife. The witness made “an assumption” that the deceased had lost his footing.
Next, a number of conversations between the witness and the accused, captured by way of listening device, were played. Item 74 of Exhibit B and Exhibit D included the following representation by the accused:

“… he shaped up to me and I just went boom (slap sound) but pulled him into it and I didn’t realise bra like (slap sound) I jabbed him three times bra he had three stab wounds…”.

Mr Elfverson demonstrated the hand gesture used by the accused during that conversation. The hand gesture was described as follows: the accused held out one hand directly in front of him and brought his other hand, which was in a closed fist, towards the palm of the hand that was held out directly in front. In doing so the clenched fist connected with the palm of the other hand with the side of the clenched fist being the thumb and forefinger side. The witness was unable to say at what level the accused was holding his hands when he made the gesture.
The accused made that gesture twice, corresponding with the slapping sounds on the recording. If accepted, the gesture is entirely consistent with a deliberate act or acts by the accused towards the deceased.
Item 76 of Exhibit B and Exhibit D was played. In that recording Mr Elfverson said: “that’s not you cunt”. He gave evidence that he meant it was not in the accused’s nature to do stuff like this because he had been a good mate.
Mr Elfverson agreed that in the recorded conversations where he said that he had seen the deceased on the floor or implied that he had seen what had happened, he was lying. He was lying to protect the accused, to try to cover up what happened that night. He told the accused that he had made a false statement to police to reassure him.
Mr Elfverson gave evidence that when he was captured saying: “I need to talk to everyone that was here that day. I need, I need everyone here”, what he meant was that he wanted to tell the other men to make up a story or stick with the story, that the deceased had fallen on the knife.
Mr Elfverson had lied to the police in his statements of 11 and 13 December 2022. He lied when he told them that the accused was about 2 metres away from the deceased. He lied when he told the police that the deceased had flashed the knives. He lied when he said that he told the police that the deceased was in front of him pretending he was going to stab him. Those lies were told to protect the accused and get him out of trouble.
The witness gave evidence of the accused trying to get him to tell “Matt” (Matthew McAnally) what to say, namely that he saw nothing. Mr McAnally did not see how the wound was occasioned. Indeed, none of the men who were present at the house witnessed the incident that resulted in the injury to the deceased.
Item 85 of Exhibit B and Exhibit D captured the witness saying to the accused: “you need help bro”. By that he meant that the accused needed to see a counsellor. During that conversation the witness shared with the accused his own experience of blacking out and losing control. He shared that experience so that the accused could relate to it because he had told Mr Elfverson that he had “snapped”. The accused also told the witness that he “just flipped it like, (IND) when I shouldn’t have.”
Mr Elfverson said that what he told the police in his statement of 22 December 2022 was the truth. The truth, as he understood it, was that the accused had stabbed the deceased. He first formed that understanding when he had the conversation with the accused in which the accused made the hand gestures referred to above. That conversation took place on 12 December 2022 between 00:27 and 00:43.
On 22 December 2022 the accused was arrested. Mr Elfverson was spoken to by police on that date. He said that the police told him they would charge him with “accessory” if he did not tell them what they wanted to hear. He was unable to remember whether this conversation took place at the accused’s home or at the police station. He gave evidence, however, that he did not interpret this as a threat and maintained that what he told the police in his statement on 22 December 2022 was the truth.
In cross-examination, the witness agreed that between 9 and 22 December 2022, he and the accused were good mates. The accused had provided a place for him to stay when he was essentially homeless. Mr Elfverson wanted to protect the accused and did not want him to get into trouble. He wanted to provide him with reassurance and agreed that he wanted the accused to think that he was “tough”. From the beginning however he made it clear to the accused and his family that he did not want to get into trouble for something he did not do.
On 9 December 2022, he saw the accused and the deceased slapboxing in the garage and indicated, by reference to photograph 28 of Exhibit M, where he recalled that happening. The pair were mucking around and slapping each other. The witness confirmed each man was engaging in the slapboxing and both had possession of a white canister. The slapboxing lasted between 40 to 45 seconds.
From the descriptions given by the witnesses, it is clear that the slapboxing was a form of play fighting or, as was described in evidence, “mucking around”. It was not serious fighting and did not involve intimidation or aggression.
Mr Elfverson confirmed that after the deceased dropped the canister and the accused picked it up, it was the accused who went into the house first, followed by the deceased. He agreed that the deceased followed the accused within 20 seconds of the accused going into the kitchen.
When the accused walked past the witness and into the kitchen, he did not look angry. He looked normal. Although Mr Elfverson was not watching everything that was happening in the garage because he was editing a video, he was seated on the stairs, the closest point to the screen door, when the accused entered the house. He was in a position to observe the accused. Mr Elfverson was clear in his evidence that the accused did not appear angry. He appeared normal.
In light of the fact that I find Mr Elfverson to be a more impressive witness than Mr Hannagan, and given his location when he made the relevant observation, I prefer Mr Elfverson’s evidence about the accused’s demeanour, as the accused entered the house.
When the accused went inside the house, both the screen door and the wooden door closed behind him. When the deceased followed him, the screen door and wooden door again closed behind him. Mr Elfverson maintained that he did hear the deceased make a noise: “ahhh” and then come back into the garage.
Mr Elfverson agreed that he had seen the “big knife” previously at the accused’s home. He had seen it in the garage. He had seen the accused holding it. He had seen it being played with. On one occasion he saw the deceased playing with it. He had also seen the “other boys” playing with it.
Mr Elfverson confirmed that he formed an understanding that the accused had stabbed the deceased during the conversation when the accused told him that: “I jabbed him three times bra”, accompanied by the gestures already described.
Mr Elfverson agreed that many of his representations captured by the listening devices were efforts by him to reassure, comfort and protect the accused. Some of his representations also suggest that he wanted to assume the role of coordinating what the “boys” would tell police to protect the accused.
He agreed with the following propositions: he intended to speak to the boys who were present at the house; he wanted to know what they were going to tell the police; he was worried about what they might tell the police; he was worried that what they might tell the police would get the accused into trouble; he was trying to help the accused to cover up what happened that night; and, he was trying to cover up what the accused had told him about “flipping the switch”.

Brianna Robbins

Ms Robbins had been in a relationship with the accused for about three years prior to December 2022. Their relationship ended by the time the accused was arrested. The relationship ended because the accused was seeing somebody else.
On 9 December 2022 at about 10:23pm, Ms Robbins received a Facebook message from Sophie Kennedy stating that the accused had stabbed the deceased in the heart twice. Ms Robbins tried to reach out to the accused without success. On 14 December 2022 the accused contacted her using Snapchat.
On 19 December 2022, Ms Robbins attended the accused’s premises and stayed there until his arrest. Sometime after arriving at the house, she had a conversation with the accused. Ms Robbins said that she had difficulty remembering the conversation. She had consumed a lot of vodka and was quite drunk. She remembered that the accused was crying. She remembered the accused saying that Bailey was “stabbed twice”, but she did not hear what he said about whether “he done it” or “who done it”. The accused told her that he and Bailey were arguing in each other’s faces, that he had blacked out and woke up with Bailey in his arms covered in his blood.
In cross-examination Ms Robbins agreed that during the conversation the accused was crying in a way that she had never seen him cry before and agreed with the description that he was “bawling his eyes out”.

Constable Fagerlund

Constable Rhys William Fagerlund was one of the attending police at the accused’s home on 9 December 2022. Footage captured on his body worn camera was played. In answer to questions about the knife, he heard the accused say: “I got rid of it bro. I can get it for you. Do you want me to grab it?”
The accused then entered the residence with Senior Constable Mitchell Heydon and Senior Constable Tanae Ruttley. The accused showed the police where the knife was. The location of the knife is captured on the body worn footage and a photograph was taken of it in situ.
In cross-examination further footage from the body worn camera was played in which the accused appears distressed about the condition of the deceased.

Detective Gray

Detective Sally Gray is the Officer in Charge. Her evidence was adduced at various stages of the trial, interposed by other witnesses. In large part, her evidence related to the Master Chronology (Exhibit B) which includes electronic evidence including photographs, relevant CCTV footage, digital evidence, and surveillance product.
The accused was arrested on 22 December 2022. He was given the opportunity to be interviewed by police and informed of his rights. He exercised his right to silence. I direct myself that all people in this country have a right to silence, that is to choose not to answer questions put to them by police. The accused was informed of his rights in that regard and exercised them.
It would be quite wrong if the accused, having listened to what the police said and having decided to exercise his right to silence, later found out that I was using that fact against him. I must not do that of course. It is important, therefore, that I bear in mind that the accused’s silence cannot be used against him in any way at all. The fact that he took note of the caution given by the police and chose to remain silent cannot be used against him. Under our law, an accused person has the right to silence.

Expert Evidence Direction

The Crown called Dr I’Ons as a witness in the trial. He is a forensic pathologist. Dr I’Ons conducted the autopsy. Professor Johan Duflou was called in the defence case. I will summarise the evidence of both experts in due course. Before I do so, I direct myself about expert evidence as follows.
I remind myself that an expert witness is a person who has specialised knowledge based on that person’s training, study, or experience. Unlike other witnesses, a witness with such specialised knowledge may express an opinion on matters within his or her particular area of expertise.
Of course, the value of any expert opinion is very much dependent on the reliability and accuracy of the material which the expert used to reach his or her opinion. It is also dependent upon the degree to which the expert analysed the material upon which the opinion was based, and the skill and experience brought to bear in formulating the opinion given.
Expert evidence is admitted to provide me with information and an opinion on a particular topic which is within the witness’s expertise, but which is likely to be outside the experience and knowledge of the average layperson.
If the opinion is based upon facts which I am satisfied have been proved, or assumptions that I am satisfied are valid, then it is a matter for me to consider whether the opinion that is based upon those facts, or assumptions, is correct. On the other hand, if I decide that the facts have not been proved, or the assumptions are not valid, then any opinion based upon them is of no assistance because it has no foundation. If that is the case, the opinion should be disregarded.
The expert evidence is before me, as part of all the evidence, to assist me in determining whether the act that caused the fatal wound was a result of a deliberate act of the accused. I do not consider it in isolation, but rather together with a number of circumstances relied upon by the Crown, which will be addressed in due course.

Summary of Expert Evidence

Dr I’Ons was called in the Crown case on 12 March 2025. Relevantly, Dr I’Ons gave evidence that he conducted the autopsy of the deceased on 13 December 2022. There were two wounds of interest. A sharp force injury was located to the left lower abdomen. The witness referred to this wound as a “prodding” wound. This wound did not cause or contribute to death.
Another sharp force injury was located towards the left side of the deceased’s chest. The track of that wound involved penetrating the skin, through the fatty tissue and the cartilaginous part of the fifth rib. It went through the pericardium penetrating the right ventricle of the heart, which allowed blood to enter the pericardial sac.
The knife (Exhibit J) is consistent with having caused the two injuries observed at autopsy. The depth of the penetration to the left upper chest was between 85 and 90 mm. The fatty material that was observed on the blade of the knife is consistent with the knife having entered a fatty part of the body. The DNA examination of that fatty substance provided a DNA profile consistent with the deceased’s DNA profile.
I am satisfied that the knife seized from the accused’s premises (Exhibit J) caused the wounds sustained by the deceased.
Dr I’Ons was asked about what, if any significance, there was to the fact that although fatty material was observed on the blade, no blood was observed. The witness said this was unusual. It may be that the knife had been wiped against something on the way out of the body or subsequently. Ultimately, the reason or reasons as to why blood was not evident on the blade of the knife, is not probative of a fact in issue. As it transpired, that evidence had no significance in the trial.
Dr I’Ons gave evidence about the force required to cause the fatal wound. He gave evidence that on a scale of 1 to 10, (if 1 is the force required to push a button on an elevator and 10 is the force of punching someone hard) the force here was somewhere between 3 to 4. Two main factors determine the level of force. Firstly, the sharpness of the knife. Secondly, the number of barriers. The main barrier on a deceased is typically clothing. In the present case the clothing worn on the upper part of the deceased’s body was made of thin, soft material. Another barrier is the skin. Considering the sharpness of the knife, the skin would have offered very little resistance. The cartilaginous is quite soft and does not offer a significant amount more resistance than the skin.
Dr I’Ons was provided with the report of Professor Duflou. He agreed that the opinions expressed by Professor Duflou at paragraphs 31 and 32 of his report, are “quite reasonable opinions”.
Before I set out the opinions expressed in those paragraphs, it is appropriate to set out the context in which those opinions were expressed. Professor Dufluo stated:

“I have been informed that it is the Defence case that the following events transpired: When the deceased came into the kitchen from the garage, the accused was holding a knife. The deceased ran towards the accused and tried to throw a closed fist punch towards the accused’s head which did not connect. The accused was still holding the knife, and the knife penetrated the deceased’s body.”

Professor Dufluo concluded:

[31] “… it is reasonably possible for either of the stab wounds to be the result of the person holding the knife stabbing the deceased. It is in my opinion also reasonably possible for either of the stab wounds to be the result of the deceased moving forwards in some way towards the knife and for the knife [to] have been held stationary while either of the wounds were sustained.”

[32] “When taking into account the two stab wounds together, it is entirely possible for both the stab wounds to be the result of the person holding the knife stabbing the deceased. It would also be reasonably possible but less likely for the two wounds to have been sustained in some way by the deceased moving onto the knife, noting that this would need to be done using two movements. One or both of those movements could have been made by the deceased in that scenario”.

Dr I’Ons added that given there are two wounds, two movements were required. There are various combinations that could account for the injuries. First, the deceased could have moved onto the knife once and then the accused could have delivered the knife once. Second, the deceased could have moved onto the knife twice. Third, the accused could have delivered the knife twice.
The knife is 58 cm long, the blade measuring 41 cm. Dr I’Ons said that the knife would have been held firmly to inflict the sharp force injuries, otherwise it “will bump off the skin if you let it”.
In relation to whether sustained force was required to cause the length of the wound, Dr I’Ons said:

“… So the two wounds provide the perfect example. So the smaller wound, the abdominal wound, is really just a prodding injury... the force has come up against the skin but then it’s stopped and so the knife hasn’t penetrated into the abdominal cavity, because no further force has been applied either by the holder of the knife or the deceased moving into the knife, so it’s just simply something has stopped - one of those, one of those have not provided further force to allow that knife to continue onwards into the abdominal cavity, so it’s simply a prod. Whilst the fatal injury continues on into the chest cavity. That’s only possible if the force either supplied by the deceased or the accused continues, and the example of not continuing that force would be the smaller injury”.

According to Dr I’Ons some continued application of force was required to cause the fatal injury. However, in circumstances where the precise movements of the accused and the deceased is unknown, it is uncertain as to how that continued force was applied. As Dr I’Ons said, it could have been the result of force on the part of the accused or force applied by the deceased.
In cross-examination, the witness agreed that the order in which the wounds were sustained cannot be determined. In relation to the grip required on a longer knife than a shorter item, he confirmed that “… it requires a greater amount of grip” if the item is longer. The witness confirmed that the deceased’s height was measured as 1.79 m and weight as 110 kg.
Dr I’Ons did not consider there to be much significance of the accumulation of barriers between what was quite soft clothing, quite soft skin and soft cartilage. He was unable to say where the knife would have been held when the injury to the chest was occasioned. The variables that impact upon that question are numerous. Dr I’Ons said that the question cannot really be answered, and depended upon whether the deceased was falling forwards, whether he was crouched or jumping or indeed whether the accused was in any of those positions. The relative positions of each body towards the other is not a question that he could answer.
Professor Duflou gave evidence that was not inconsistent with the evidence of Dr I’Ons. Like Dr I’Ons, Professor Duflou said that the degree of force depends upon several factors including the sharpness of the implement and the level of resistance from various items such as clothing, skin and cartilage. He agreed with the opinion expressed by Dr I’Ons about the degree of force required to cause the fatal injury. The witness would have described it in different terms, namely mild to moderate force.
Professor Duflou concluded that it is reasonably possible for either of the stab wounds to be the result of the person holding the knife stabbing the deceased. It is also reasonably possible for either of the stab wounds to be the result of the deceased moving forwards in some way towards the knife and for the knife to have been held stationary while either of the wounds were sustained.
When taking into account the two stab wounds together, it is entirely possible for both the stab wounds to be the result of a person holding the knife stabbing the deceased. It would be reasonably possible, but less likely, for the two wounds to have been sustained in some way by the deceased moving onto the knife, noting that this would require two movements.
The witness was cross-examined about the firmness with which the knife would have been held having regard to its length. Obviously, the knife would have been held but as to whether it was held firmly or not, he could not comment.
Professor Duflou was challenged in respect of his evidence that once the blade penetrated the skin, the cartilage and the heart muscle would not have offered greater resistance than the skin. The Crown put to the witness that the knife, once it penetrated the skin, does not magically continue its course but requires some sustained force.
Professor Duflou did not agree with the proposition that sustained force was required, stating that one of the variables is the likely relative movements of the persons involved in the interaction, that is the holder of the knife and the person sustaining the injury.
The experts are largely in agreement about the possible mechanisms that could have caused the fatal wound. It is reasonably open, on their evidence, that the fatal wound was caused by the deceased moving onto the knife when it was held firmly by the accused.
The expert evidence, by itself, does not establish to the requisite standard, that it was a deliberate act of the accused that caused the fatal injury. However, the Crown case is not limited to the evidence of the experts. Indeed, in large part, the Crown case relies upon the representations made by the accused himself, relied upon as asserted admissions, together with the post-offence conduct, relied upon as consciousness of guilt to an unlawful killing.

Circumstantial Evidence Direction

The Crown relies upon several circumstances, in combination, to prove beyond reasonable doubt that the accused committed a deliberate act (a stabbing) that caused the death of the deceased, and that he committed the act with an intention to cause grievous bodily harm to the deceased. The circumstances are set out in MFI 22. There are two categories of circumstances. The first category includes the circumstances relied upon to prove an intention to inflict grievous bodily harm. The second category includes the circumstances relied upon to establish a deliberate stabbing on the part of the accused. The circumstances can be summarised as follows:

Mens rea

The size of the knife, namely 58 cm total length with the blade measuring 41 cm.
The biological matter on the knife extended from the tip up to approximately 8.5 cm on the blade.
The area of injury for the fatal wound was to the left upper chest.
Evidence of the comparative heights of the accused and deceased, namely only 1.8 cm difference, a matter relevant to the accused’s evidence about where on his body he held the knife outstretched.
Evidence of Dr I’Ons that due to the length of the knife it must have been held firmly to control it.
Representations by the accused, relied upon as admissions to an intention to inflict grievous bodily harm.
Evidence of Mr Hannagan that he observed a change in the demeanour of the accused when he entered the kitchen shortly before the deceased sustained the fatal wound.

Deliberate Stabbing

The circumstances relied upon by the Crown to prove that the fatal wound was caused by a deliberate act of the accused, are, in large part, based on representations of the accused and post-offence conduct engaged in by him:

Representations by the accused in his conversation with Mr Elfverson on 12 December 2022 (Item 74 of Exhibit B), “… I flipped the switch, like I walked up there and he (IND)... and then he shaped up to me and I walked back with Layla in the room and grabbed my (IND) Layla goes what do you need that for and I never answer her when, like I’m angry and then I went back and he shaped up to me and I just went boom (slap sound) but pulled him into it…”.

Representations of the accused in a conversation with Emanuel Saliba and Mr Elfverson on 12 December 2022 between 23:36 and 23:51 (Item 93 of Exhibit B), “… he was like here (IND) shaped up… Yeah (IND) I just went (slap sound, slap sound) and he went ahhh, ahhh…”.

Evidence of Brianna Robbins that the accused told her that he and Bailey were arguing in each other’s faces, the accused blacked out and he woke up with Bailey in his arms covered in his blood.

Evidence of Mr Elfverson that immediately following the infliction of the fatal wound, the deceased came through the door from the kitchen into the garage with the accused behind him and the deceased said: “why do you do that?”.

Mr Elfverson’s description of the accused’s gestures during the conversation with him on 12 December 2022, which is consistent with a deliberate act of stabbing as opposed to an accidental infliction of the wound.

The accused’s representations during a conversation on 13 December 2022 between 19:10 and 19:25 (Item 98 of Exhibit B), in which the accused said: “but I just flipped it like when I shouldn’t have… I wish someone like just, had that chance to say, Dom what are you doing? Before like, saw me switch”, and Mr Elfverson saying: “I would have had that knife out of your hands”, and the accused responding: “no you wouldn’t have bra (laughing)”.

Post-offence conduct (set out in MFI 18).

Asserted admissions (set out in MFI 21).

My function as the judge of the facts, in this case, extends beyond coming to a conclusion as to whether I find that any particular fact has been established by the evidence. My function also extends to drawing reasonable inferences, or conclusions, from the facts I find established.
In relying upon circumstantial evidence, the Crown asks me to find certain basic facts and then from those facts, to draw an inference or conclusion as to the existence of a further fact, or facts. Here, I am asked to draw the inference that the accused did commit a deliberate act that caused death and at the time he did so, he had an intention to cause grievous bodily harm.
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.
It is important that I approach a circumstantial 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.
The correct approach is as follows. Firstly, I determine what facts I find 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 consider all 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 find the accused not guilty.
Secondly, 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 are inconsistent with his guilt. If there is any other reasonable conclusion arising from those facts that are inconsistent with the guilt of the accused, the circumstantial case fails because I could not be satisfied beyond reasonable doubt of the accused’s guilt.
I understand that drawing a conclusion from one set of established facts to find that another fact is proven, involves a logical and rational process of reasoning. I must not base my conclusion upon mere speculation, conjecture, or supposition.

Consciousness of Guilt

The circumstances relied on by the Crown include post-offence conduct which is relied upon as consciousness of guilt of an unlawful killing (the issue of self-defence will be addressed separately). The post offence conduct is identified in MFI 18. It is necessary to point out that the post-offence conduct relied upon by the Crown is said to demonstrate a consciousness of guilt of an unlawful killing, that is one of the circumstances relied upon to establish that the fatal wound was caused by a deliberate act of the accused. This is an essential element with respect to murder (element 3) and manslaughter (elements 2 and 3). The post-offence conduct is not (and cannot) be relied upon to establish a consciousness of guilt of the relevant intention for murder.
The post-offence conduct is in two categories. The first category deals with evidence that relates to the accused influencing or encouraging witnesses to give a false version to police or not provide a true or full version of relevant events. The second category of post-offence conduct includes the lies told by the accused.
I will briefly summarise the post-offence conduct and then direct myself as to how I can use that evidence.

Evidence of influencing witnesses

The evidence relied upon by the Crown that the accused influenced witnesses to give a false version or not provide a true or full version of the relevant events is as follows.
The Crown relies on the evidence of Mr Hannagan that the accused told him that the deceased had fallen on a skewer “like a barbecue skewer”, which was the reason the witness told the triple zero operator that the deceased had injured himself in that way. During the triple zero call that Mr Hannagan made, the accused is heard in the background saying: “he tripped on a knife”, which prompted Mr Hannagan to report to the triple zero operator that the deceased “tripped and he landed on a knife”.
I pause to note, that while I am satisfied that the accused told Mr Hannagan that the deceased had fallen on a knife, I reject the evidence that the accused told him that the deceased had “snapped himself” or fallen on a “skewer”. Mr Hannagan’s evidence that the accused said the deceased fell on a “skewer” was uncertain and inconsistent. Mr Hannagan gave conflicting evidence about whether it was the accused who told him the deceased had fallen on a skewer or whether he had assumed that was what happened because the accused said it happened in the barbecue area.
Furthermore, none of the other witnesses asserted that the accused told them the deceased had “snapped” or fallen on a “skewer”.
The Crown relies upon the following recorded utterances of the accused as part of the post-offence conduct:

Representations by the accused during the conversation with Mr Elfverson on 12 December 2022 (Item 77 of Exhibit B), “Like I like I said if I can just, we can all just like stick to our shit and just make that an accident”.

Representations by the accused during conversations on 12 December 2022 (Items 80, 81 and 82 of Exhibit B) between the accused, Mr Elfverson and Tania Saliba, in which the accused said to Mr Elfverson: “Bro, just say you tell them you saw nothing that’s it…”. The accused also expressed a concern that “Matt” (Matthew McAnally) worried him, essentially because he was worried about what Matt would say to the police.

A conversation between the accused and Mr McAnally on 12 December 2022 at 19:18 (Item 83 of Exhibit B) in which the accused said: “…that charge it’s, it’s looking like an accident so that’s what it is”.

Representations by the accused during conversations with Mr Elfverson on 13 December 2022 (Items 97, 98 and 99 of Exhibit B) in which he said: “Oi listen, the only reason I will get done is when someone decides to go (IND), none of yous. I know you won’t. (IND) That’s the only reason bro. Like, put it this way, (IND) bra”; “They’re hoping one of yous crack”; and, “If you go on the stand you just say the same shit”.

The accused’s representations to his father on 17 December 2022 (Item 102 of Exhibit B), “… like we had to come up with a story within five minutes I had to tell them what to say to the ambos on the phone quickly…”.

Representations made by the accused to Mr Elfverson on 18 December 2022 (Item 106 of Exhibit B), “At the end of the day if no one folds, no one folds. They can’t do nothing”.

The Crown also relies upon lies told by the accused as a consciousness of guilt of an unlawful killing. Those asserted lies can be summarised as follows:

The accused saying that the deceased “tripped on a knife”, while Mr Hannagan was on the phone to the triple zero operator (Item 20 of Exhibit B).

The accused’s representations to the triple zero operator: “All right so my little cousin… and he fell on the knife” and “the little cunt was just joking around and being a silly cunt and tripped over and landed on the thing.” (Item 23 of Exhibit B).

When the police asked the accused who had witnessed what happened, he responded: “us three”, referring to Mr Hannagan and Mr Elfverson (Item 27 of Exhibit B). Neither of those men were present when the deceased sustained the fatal injury.

The representations made by the accused to PCSC Lipscombe which included: “Fucken silly cunt playing with knives bro” and “… fucken silly cunt wants to grab knives and joke around and then tripped over near the door and then bro must’ve just landed straight on him” and “… then fucken tripped over. Like he was joking around with me like being a funny cunt and then as he like joked around he tripped over and the cunt just (soft slap noise) and I was like ohhh”: (Item 41 of Exhibit B).

The accused’s version in the police recorded interview on 9 December 2022 (Exhibit K) at answers 40-41, 167-188, 233-235, 255-269, 192-193, 204, 332-338.

The accused’s representations during a conversation with an unknown male on 12 December 2022 in which the accused said: “Like this cunts swings things around all the time… he’s at the (IND) joking around and he kicks the door thing like that trim, he gets up I was like…”, “Yeah it was an accident, fucked accident” (Item 88 of Exhibit B).

Representations by the accused during a conversation with an unknown male on 14 December 2022 which includes the accused saying: “he ended up tripping on a blade and hurting himself” (Item 100 of Exhibit B).

Representations by the accused during a conversation on 18 December 2022 in which he said: “Literally it was an accident… he fell on the knife” (Item 104 of Exhibit B).

It is appropriate to note that the accused gave evidence that when he told his friends, police, and the triple zero operator that the deceased had fallen on a knife, that was a lie. There is no dispute therefore that the representations made by the accused that the deceased fell on a knife were a lie and that he knew that the representations were untrue at the time he made them.
There are two pieces of evidence relied upon by the Crown that do not, in my view, constitute consciousness of guilt evidence. The first is representations by the accused to Senior Constable Heydon: “I got rid of it bro”, referring to the knife (Item 28 of Exhibit B). It is unclear as to why the accused made that representation. It was obviously not accurate because the knife was located in the kitchen in the vicinity of the door that led from the kitchen to the garage which is in the general vicinity of where the interaction between the accused and the deceased took place. Indeed, further evidence establishes that the accused pointed out to police where the knife was.

Notwithstanding the accused’s capacity to lie, the Crown submitted that his representations, relied upon as admissions, are truthful. He was not aware that listening devices were in the house. He felt comfortable with Mr Elfverson and trusted him.
The accused’s explanation that he made the representations up to look tough should be rejected. The Court would accept the accused’s representations that he “jabbed” the deceased. That evidence is consistent with Mr Elfverson’s description of the gestures made by the accused and with the utterance of the deceased: “Why do you do that?”
The Crown also relies upon the evidence of Ms Robbins. The accused told her that Bailey had been stabbed twice. They were arguing in each other’s faces. The accused blacked out and when he came to, he was holding the deceased in his arms and was covered in his blood.
The Crown submitted that the consciousness of guilt evidence and the admissions is compelling evidence of an unlawful killing. The Crown also addressed some of the admissions relied upon to demonstrate an intention to inflict grievous bodily harm, contending that these admissions together with the discrete circumstances relied upon to demonstrate the necessary state of mind, establish an intention on the part of the accused to inflict grievous bodily harm.
The Crown submitted that there is simply an insufficient evidentiary basis for self-defence. In the event that the Court rejects the accused’s sworn evidence, the remaining evidence does not give rise to an evidentiary basis for self-defence given that in the recorded conversations, the accused simply states that he saw the deceased shaping up. He did not say that the deceased had thrown a punch which required the accused to shield his face and take steps backwards.
Even if some of his sworn evidence is accepted, it is insufficient to give rise to an evidentiary basis for self-defence. The evidence of the accused does not give rise to an inference that he believed he had to stab the deceased to protect himself. The Crown’s ultimate submission is that self-defence has been disproved beyond reasonable doubt.
If the Court is not satisfied that the Crown has established the necessary intention for murder, the Crown submitted that the Court would have no difficulty in finding the accused guilty of manslaughter. Stabbing the deceased with the knife to the chest, is a dangerous act and, having disproved self-defence, is unlawful.
The Crown’s primary contention however is that the elements of murder have been established to the requisite standard.

Accused’s Submissions

The accused’s case is that he is not guilty of murder or manslaughter. Ms Khalilizadeh advances four propositions. First, the accused did not commit a deliberate act that caused death. Second, if he did, the Crown has not established an intention to cause grievous bodily harm. Third, if the Crown has established the elements of murder, it has not disproved self-defence. Fourth, in the event that the Crown establishes that the fatal wound was caused by a deliberate act of the accused, it was not an unlawful and dangerous act.
Three reasons are relied upon in support of the contention that the Crown has not proved that it was a deliberate act of the accused that caused death. First, there is no direct evidence as to the precise way the wound was occasioned. Second, the expert evidence supports scenarios consistent with innocence. Third, the accused’s evidence that the deceased advanced on the knife thereby causing the fatal wound should be accepted.
The expert evidence has already been addressed at some length above. In summary, it was submitted that the forensic pathologists are largely in agreement. The force required to cause the fatal injury was not significant or substantial. In any case, there are limitations on estimation of force in a dynamic situation. The degree of force cannot be determined with any certainty. It was pointed out that the pathologists do not exclude, as a reasonable possibility, that the fatal wound could have been sustained as a result of the deceased advancing onto the knife.
In respect of an intention to inflict grievous bodily harm, it was submitted that the size of the weapon, the location of the wound and the evidence of the experts, does not establish, beyond reasonable doubt, that the accused had the necessary state of mind.
Ms Khalilizadeh submitted that the Court would prefer the evidence of Mr Elfverson over that of Mr Hannagan in respect of the observations made of the accused immediately before he went into the kitchen from the garage. Mr Elfverson was seated on the steps, near the door that led from the garage to the kitchen. He did not observe a change in the accused’s demeanour and gave evidence that the accused looked normal.
The Court was urged to consider the accused’s conduct in the immediate aftermath of the injury being sustained. It was a chaotic environment. There was a degree of panic and concern for the deceased’s welfare. The accused was visibly distressed. The accused can be seen on the CCTV footage to be sitting next to the deceased and holding his hand. Observations were made by witnesses that the accused was crying and distressed. His presentation is said to be inconsistent with having had an intention, only minutes before, to inflict grievous bodily harm.
The accused submitted that if the Court accepts that the deceased said: “why do you do that?” immediately after sustaining the wound, several inferences are available which are consistent with innocence. For example, why do you take my canister?
It is accepted that the accused lied to his friends and authorities at the scene and continued to lie in his interview with police. However, it was submitted that the lies do not demonstrate a consciousness of guilt on the part of the accused. He was in shock. He could not comprehend what was going on. He was nervous, scared and felt guilty. He was attempting to protect himself against being wrongfully blamed for the death of his cousin. He felt guilty that he could not save his cousin.
With respect to the admissions, it was submitted that the Court would accept the accused’s evidence that his representations were untruthful. They were made in an effort to look tough to his friend. The accused was weaving lies and truths into the narrative he provided to Mr Elfverson.
In the event that the Court accepted that the representations were truthful, they are not admissions of an intention to cause grievous bodily harm but rather admissions to a loss of control. It is submitted that terms such as “blackout” and “flipped the switch” are indicative of an instantaneous reaction to the situation the accused found himself in, rather than descriptors of a state of mind that encompassed an intention to kill or cause grievous bodily harm.
In the event that the Court is satisfied beyond reasonable doubt that it was an act of the accused that caused the death of the deceased, and that the accused had the necessary intention, the Crown has failed to eliminate self-defence and the accused should be found not guilty.
In respect of murder, it is submitted that the Crown has failed to prove to the requisite standard that the accused did not believe that he had to do what he did to protect himself, nor has the Crown proven that the response was not a reasonable one in the circumstances.
If the Court were to come to consider manslaughter by unlawful and dangerous act, the Crown has not disproved self-defence and has therefore not established that the act of the accused was unlawful or dangerous.
The Court is urged to find the accused not guilty of murder and not guilty of manslaughter.

Findings and Verdicts

In analysing the evidence, making findings, and reaching verdicts, I proceed within the framework provided by the fundamental principles underpinning each and every criminal trial, namely, the presumption of innocence and the onus and standard of proof.
Because it is incumbent upon me to be transparent in my reasoning, I must emphasise, as I have, the directions that I set out at the beginning of this judgment. Arriving at a verdict requires a clinical and forensic approach free from sympathy or prejudice.
What I am required to do is consider all of the evidence and ask myself whether the Crown has established each element of the offence I am considering, beyond reasonable doubt. The assessment of the weight to be accorded to a witness’s evidence by reference to the manner in which it was given by the witness, has always been, and remains, the province of the tribunal of fact. I have had the benefit of observing each witness give evidence in the trial.
My analysis of the evidence involves engaging with the question as to whether, against the body of evidence, the Crown has excluded the reasonable possibility that the accused did not commit a deliberate act, or acts, with an intention to kill, or cause grievous bodily harm.

Findings

The Crown case relies upon a number of circumstances that I must consider as a whole in determining whether the elements of murder have been established to the high standard required. The circumstantial evidence includes the expert evidence, which has been summarised in some detail above, and which I have considered closely in making my findings.
The expert evidence leaves open a reasonable alternative hypothesis consistent with innocence. However, the Crown case is not limited to the expert evidence. As noted previously, the Crown case largely relies upon representations made by the accused as asserted admissions and post-offence conduct said to demonstrate a consciousness of guilt to an unlawful killing.

The Relationship between the Deceased and Accused

The accused and the deceased were cousins. The deceased was about two years younger than the accused. In the months leading up to 9 December 2022, they had a close relationship and spent time together at the accused’s home. Each had introduced the other to other young men, who became part of the friendship circle. Some of those young men were present at the accused’s home on 9 December 2022 and were called to give evidence in the trial.
The group of young men, of which the deceased and accused were members, got together on occasion at the accused’s home where they would sit in the garage, “chill out”, listen to music, drink alcohol or smoke cannabis or both.
I am satisfied that one of the ways in which they interacted with each other was by play fighting or slapboxing. This practice involved physical slaps or kicks that were engaged in as a form of “mucking around” or joking with each other. Whilst to some, this form of bonding may seem peculiar, I am satisfied that there was nothing untoward or sinister about it.
9 December 2022 was a perfectly normal day in which the accused and deceased and the group of friends were going to engage in the normal activity of meeting up at the accused’s home. As it transpired however, there was nothing at all normal about that day. In the early evening, Bailey Jones sustained a serious wound that caused his death.

Findings in respect of the accused’s sworn evidence

As indicated at the outset of these reasons, the only account of what transpired in the deceased’s house on the late afternoon of 9 December 2022, is that provided by the accused. I remind myself that the accused does not have to prove his innocence. Just because he has given evidence does not mean that the onus has shifted to him to establish that he did not commit a deliberate act or that he was not acting with an intention to kill or cause grievous bodily harm or, conversely, that he was acting to defend himself.
Having chosen to give evidence, I have assessed the credibility and reliability of the accused in the same way that I have approached that assessment in respect of all witnesses, bearing in mind that the onus does not shift to him to prove, or disprove, anything. I have taken into account that whilst demeanour may be relevant to the assessment of credibility and reliability, it is not determinative of whether a witness is telling the truth. A witness’s demeanour may be affected by a number of matters that have nothing to do with credibility or reliability. For example, a witness may find that giving evidence in a full courtroom with all its formalities is stressful. A witness may be impacted by the tension of the subject matter itself.
Bearing in mind the directions previously set out as to the assessment of witnesses, I proceed to make findings in relation to the sworn evidence of the accused. I reject the accused’s account as to what took place at the time that the deceased sustained the fatal wound. Specifically, I reject his account that the deceased threw a punch at him, causing the accused to shield his face with his left hand and take steps backwards. I reject the accused’s account that, in effect, the deceased advanced on the knife, thereby occasioning to himself the fatal injury.
I reject that account because I am satisfied that the representations the accused made to Mr Elfverson, insofar as they are relied upon as an admission to an unlawful killing, are, in the main, truthful.
I do not accept the accused’s evidence that his representations (set out in MFI 21) were all lies told effectively to present himself as “tough” in front of his friend. While I do accept that there was a degree of embellishment or exaggeration in some of the representations relied upon as admissions, I am satisfied that in the main, those representations are a true and accurate account of what took place at the time that the fatal wound was inflicted.
One example of embellishment or exaggeration on the part of the accused in those representations appears in the conversation with Mr Elfverson on 12 December 2022 between 00:27 and 00:43 (Item 74 of Exhibit B). Relevantly, the accused said “… I just went boom (slap sound) but pulled him into it and I didn’t realise bra like (slap sound) I jabbed him three times bra he had three stab wounds, he had one here, two dots here and then, but the one stab wound was the one that killed him”.
Even accepting the accused had by this stage, some information about the results of the autopsy, this is a clear example of embellishment or exaggeration. There were only two wounds consistent with stabbing which could only have been inflicted by two movements, not three. Furthermore, the expert evidence from both forensic pathologists, about the degree of force, is not consistent with pulling the deceased into the knife.
The expert opinion is that the degree of force was between 3-4 on a scale of 1 to 10, or alternatively between mild to moderate. The expert evidence is inconsistent with significant or substantial force being used, such as pulling the deceased into the knife (Exhibit J).
That is one example of embellishment or exaggeration in the account given by the accused, which is relied upon as an admission. Another example of bravado or embellishment is reflected in the language used by the accused when he said to Mr Elfverson: “I’m, I’m a cut motherfucker and when I blackout I, I it doesn’t matter I’m going. I’m ballistic.”
Although I accept that the accused, in this and other conversations with Mr Elfverson, was conveying that he can lose control in an instant, the language used here is an example of bravado. It can be contrasted with the accused’s representations and the tone of the conversation with Mr Elfverson on 13 December 2022 (Item 98 of Exhibit B) when he said: “I just flipped it like when I shouldn’t have… I wish someone like just, had that chance to say, Dom, what are you doing?…”.
However, that does not mean that everything the accused said in those conversations is a lie, exaggeration or embellishment.
The reason that I accept that some of the representations, relied upon as admissions, are a truthful account of what took place is because they are un-guarded representations made at a time when the accused was unaware of the listening devices. In addition, the representations were made to, or in the presence of, persons whom the accused felt comfortable with, trusted and believed would not betray him to the police.
Furthermore, when regard is had to the recording of the conversations in which it is asserted that admissions are made, the accused’s tone and manner of interacting with Mr Elfverson does not suggest an attempt to “big-note” by lying about having stabbed his cousin.
The representations made by the accused which were captured by listening device, of which I am satisfied are truthful are as follow:

“I fucked up”.

“I flipped the switch”.

“I jabbed him”. I am satisfied that the reference to “jab” is a reference to stabbing the deceased. For the reasons already outlined, I do not accept the number of “jabs” as being truthful. This is one of the conversations in which the accused embellished or exaggerated the account.

I accept the gestures made by the accused (captured on the recording as slap sounds) were as described by Mr Elfverson, gestures from which it can be clearly inferred that the acts were deliberate.

“Everything just fucken went south hard… Everything just went completely wrong”. “Yeah, just without thinking hey?” “You don’t think you just (IND)”.

“Yeah but I don't even let myself, like, I ca, don't, I don't get to that point. It's just instant”. “… It’s like zero from a hundred”. “Yeah, but that didn’t… Didn’t go through my brain at that point”.

“Yeah (IND) I just went (slap sound, slap sound) and he went ahhh, ahhh and he’s like you got me”.

“But I just flipped it like when I shouldn’t have”. “I wish someone like just, had that chance to say, Dom what are you doing? Before like, saw me switch. Like you could see me switch”.

I am not persuaded that the part of the conversation with Mr Elfverson (Item 98 of Exhibit B) in which they discussed whether Mr Elfverson would have or could have taken the knife out of the accused’s hands, constitutes an admission of murderous intent. Having listened to the recording again, it seems to me that this part of the conversation is more light-hearted bravado. At one point the accused laughed when he said: “no you wouldn’t have bra”.
As I have outlined, there was a degree of embellishment or bravado in some of the accused’s representations. I have already pointed out some of those examples. However, I am satisfied that the representations identified at [350] were said by the accused and were truthful.
I accept that Ms Robbins was giving a truthful account of the conversation between her and the accused on 19 December 2022. That evidence is that the accused told her that Bailey was stabbed twice. Bailey and the accused were arguing in each other’s faces. The accused blacked out and woke up with Bailey in his arms and that he was covered in his blood.
The accused could not remember the conversation and could not therefore deny it. While I accept that the accused made those representations to Ms Robbins, I am not of the view that those representations were an entirely accurate or reliable account of what took place. That is because the accused had been drinking alcohol and described himself as being “drunk” when he was speaking to Ms Robbins. He was highly emotional. Ms Robbins agreed that he was “bawling his eyes out”.
Furthermore, the description that he was covered in Bailey’s blood is obviously inaccurate. There is no evidence that the eyewitnesses or police observed blood on the accused. There is no forensic evidence that any blood was located on the body or clothing of the accused.

Do the accused’s representations captured on listening device constitute admissions of an unlawful killing and (with respect to some) an intention to inflict grievous bodily harm?

Having accepted that the representations made by the accused in recorded conversations (identified above at [350]), were truthful, I am satisfied that they constitute admissions that the accused committed a deliberate act that caused the fatal injury. Put another way, I am satisfied that they constitute admissions by the accused that he stabbed the deceased.

However, I am not satisfied that, either individually or collectively, the representations constitute an admission to murderous intent. Put another way, I am not satisfied that the representations are admissions that the accused intended to cause grievous bodily harm at the time he committed the deliberate act which caused the death of the deceased.
First, I am not persuaded that a reference to “blacking out” (or representations inferring such a state) is necessarily a reference to a state of rage in which an intention to cause grievous bodily harm was necessarily formed by the accused.
Second, terms such as “blackout”, “ballistic” and “flipping the switch”, while they may be suggestive of an extreme state of anger, are descriptors which also suggest an instantaneous or impulsive loss of control, in the absence of any particular state of mind. It is the state of mind of the accused at the time of the commission of the deliberate act that must be determined, not the interpretation of descriptors with the benefit of hindsight.
Third, some of the representations made by the accused and relied upon as admissions of murderous intent, are in fact suggestive of a lack of intention to inflict grievous bodily harm. In his conversation with Mr Elfverson on 12 December 2022 (Items 85 and 92 of Exhibit B) the accused said: “Yeah just without thinking hey?” and “You don’t think you just (IND)” and “Yeah but that didn’t… didn’t go through my brain at that point” and “it’s like zero from a hundred”. These representations are suggestive of an instantaneous, impulsive reaction or action, as opposed to the formation of an intention to inflict grievous bodily harm.
There may well be occasions where an intention to inflict grievous bodily harm is formed quickly, without premeditation or even deliberation. However, I am not persuaded to the requisite standard that such was the case here.

Mechanism Causing Death

It is difficult to determine, with any certainty, the precise movements of the accused and deceased at the time the fatal injury was inflicted. For example, I am unable to determine the order of the wounds. I am unable to determine the precise movement of the deceased at the time he sustained the fatal wound, other than to say that he did not advance on the knife.
I find that the accused and the deceased were slapboxing in the garage. This was a form of playful fighting where each slapped the other. The pair were “mucking around” with each other, perhaps testing each other. There was also some banter about who owned which canister. I accept that the deceased was quicker than the accused and managed to pick up a canister from the table in the garage. He dropped it. The accused picked it up, moving into the kitchen.
I accept Mr Elfverson’s description that the accused was not angry and appeared normal when he went from the garage into the kitchen. Seconds later the deceased followed him into the house. The accused went into his bedroom and took possession of the knife (Exhibit J). I am not persuaded that at the time the accused took possession of the knife he had an intention to stab or injure the deceased. It is more likely, in my view, that the accused took possession of the knife to assert control and to obtain the upper hand in his interaction with the deceased. I also observe that a state of anger does not equate, necessarily, with an intention to inflict grievous bodily harm.
The accused returned to the kitchen and moved to the position in front of the deceased, as indicated by the accused in the diagram (Exhibit 3). As can be seen from the accused’s markings on that floor plan, the accused came out of the bedroom, walked past the kitchen bench to a position facing the deceased. The deceased walked into the kitchen and to the vicinity of about the middle of the kitchen bench.
I accept that the accused perceived that the deceased was shaping up. The accused said so in the recorded conversations at a time when the Crown invites me to accept that what he said was truthful.
However, I do not accept that the deceased threw a punch at the accused, causing him to step backwards. It is difficult to determine with precision, the point at which the “mucking around” or “playful fighting” escalated to anger on the part of the accused. It was likely at the point when he perceived that the deceased was shaping up to him.
I accept that the accused became angry, stabbing the deceased and causing the fatal injury. In addition to the admissions and post offence conduct, I have had regard to other evidence in the Crown case in finding beyond reasonable doubt that it was a deliberate act of the accused that caused the fatal wound.
First, I have had regard to the evidence of the accused himself that the deceased said: “I think you got me”. Second, I have had regard to the evidence of Mr Elfverson that he heard the deceased say to the accused: “why do you do that?”
The irresistible conclusion, having regard to all the circumstances, considered as a whole, is that the accused committed a deliberate act, in stabbing the deceased, that resulted in his death.
I am not, however, satisfied beyond reasonable doubt that the act, although deliberate, was accompanied by an intention to inflict grievous bodily harm.
This was an incident that escalated over a short period of seconds. Immediately prior to the infliction of the fatal wound, the accused and deceased were mucking around with each other, laughing and joking. The evidence establishes that in the months leading up to 9 December 2022, they did have a close relationship. That the accused did not comprehend the extent of the injury, is, in my view, demonstrated by his immediate reaction. Although he had the presence of mind to lie to protect himself, his distress was genuine as was his concern for his cousin. This does not sit comfortably with an intention to cause grievous bodily harm just moments before.
In addition, the post-offence conduct does not advance the Crown case in establishing an intention to cause grievous bodily harm. The Crown does not rely upon the post-offence conduct as consciousness of guilt in that regard. Furthermore, as explained above, I am not satisfied that the representations relied upon as admissions, either singularly or collectively, demonstrate an intention to cause grievous bodily harm.

Has the Crown Proved the Elements of Murder Beyond Reasonable Doubt?

The Crown bears the onus of proof. The Crown must establish each element of the offence of murder to the high requisite standard of beyond reasonable doubt. Suspicion is no substitute for proof beyond reasonable doubt.
In order to prove its case on the charge of murder, the Crown must establish that the accused committed the deliberate act, or acts, that caused death, and at the time he did so, he either intended to kill or cause grievous bodily harm to his cousin. Grievous bodily harm means really serious bodily harm. While there is no requirement that such harm be permanent, or life-threatening, the intention must be to inflict more than just some harm.
I have endeavoured to summarise the evidence in some detail. I have considered the Crown’s circumstantial case as a whole, rather than in a piecemeal fashion.
To summarise, I am left with a reasonable doubt as to the charge of murder for the following reasons:

Firstly, although I am satisfied that the circumstances relied upon by the Crown, taken as a whole, establish beyond reasonable doubt that it was a deliberate act of the accused that caused the fatal wound, I am not persuaded, to the requisite standard, that at the time of inflicting the wound, the accused had an intention to cause the deceased grievous bodily harm.

Secondly, the post-offence conduct which includes lies and influencing witnesses, is relied upon as consciousness of guilt to an unlawful killing only. The post-offence conduct is not relied upon, and could not be relied upon, as consciousness of guilt to an intention to cause grievous bodily harm to the deceased.

Thirdly, the specific admissions which are relied upon to establish the necessary intention, fall short of doing so. The asserted admissions constitute compelling evidence that the accused perpetrated a deliberate act that caused death. However, none of those admissions (for the reasons set out above) are admissions of an intention to cause grievous bodily harm.

Fourthly, although the size of the knife and the location of the fatal wound are relevant factors to be considered in the Crown’s circumstantial case on murder, they cannot be considered in isolation. The opinion of both experts is that the force required to cause the fatal wound was not significant or substantial. It was described as either mild to moderate or 3 to 4 on a scale of 10.

Fifthly, while some continued force was required to create a track wound of approximately 8.5 cm, neither expert could confidently state what that degree of continued force was or how it was applied in circumstances where they do not know the relative movements of the accused and the deceased at the time the wound was inflicted.

Sixthly, I have had regard to the evidence (which includes CCTV footage) of the accused’s demeanour immediately following the infliction of the fatal wound. He was genuinely distressed, concerned for the welfare of the deceased and demonstrably shaken by the extent of injury to the deceased. I am not of the view that this was feigned emotion. Although I accept that emotional distress can sometimes simply be a demonstration of regret after the event, in this case, I am satisfied that the degree of distress and concern exhibited by the accused, militates against a finding that only minutes earlier, the accused had an intention to inflict grievous bodily harm on the deceased.

It is apparent that in respect of the count on the indictment, I have not addressed the issue of self-defence because I am not persuaded that the Crown has established one of the necessary elements beyond reasonable doubt. I will, however, address the issue of self-defence in due course because it has been raised and is relevant not only to the charge of murder, but also to the alternative of manslaughter by unlawful and dangerous act.

Manslaughter – Unlawful and Dangerous Act

I turn to consider the alternative count of manslaughter. Is the deliberate and voluntary act of stabbing the deceased, an unlawful and dangerous act?
The High Court in Wilson v The Queen (1992) 174 CLR 313; [1992] HCA 31, examined the history of the offence of manslaughter based on an unlawful and dangerous act. The Court held, at page 333, that an unlawful and dangerous act carries with it an appreciable risk of “serious injury”. In assessing whether the Crown has established the necessary elements of manslaughter on this basis, I must consider whether a reasonable person, in the accused’s position, would have realised that in stabbing the deceased with the knife (Exhibit J) he was exposing the deceased to an appreciable risk of serious injury.
Before I address the question of whether the Crown has established that the accused’s act was dangerous, I will deal with the issue of self-defence.

Was the act unlawful?

Sections 418 and 419 of the Crimes Act 1900 (NSW) provide:

418   Self-defence—when available
(1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.
(2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary—
(a)  to defend himself or herself or another person, or
(b)  to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or
(c)  to protect property from unlawful taking, destruction, damage or interference, or
(d)  to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,
and the conduct is a reasonable response in the circumstances as he or she perceives them.

419 Self-defence—onus of proof
In any criminal proceedings in which the application of this Division is raised, the prosecution has the onus of proving, beyond reasonable doubt, that the person did not carry out the conduct in self-defence.

In R v Katarzynski [2002] NSWSC 613 (“Katarzynski”), Howie J distinguished the question posed for the tribunal of fact where there is evidence raising self-defence from that which existed at common law. The first issue is determined from a completely subjective point of view considering all the personal characteristics of the accused at the time he carried out the conduct. The second issue is determined by an entirely objective assessment of the proportionality of the accused’s response to the situation the accused subjectively believed he faced. The Crown will negative self-defence if it proves beyond reasonable doubt either:

that the accused did not genuinely believe that it was necessary to act as he did in his own defence; or

that what the accused did was not a reasonable response to the danger as he perceived it to be: see Katarzynski at [23].

The operation of the provisions as explained by Howie J in Katarzynski, was referred to with approval in Sivaraja v R; Sivathas v R [2017] NSWCCA 236. The question as to whether the accused believed that his conduct was necessary in order to defend himself, is determined from a completely subjective point of view considering all the personal characteristics of the accused at the time that he carried out the conduct.
Applying the relevant directions, I am satisfied beyond reasonable doubt that the act causing death was an unlawful act. Put another way, I am satisfied that the Crown has excluded self-defence beyond reasonable doubt.
I have already explained the reasons for rejecting the accused’s account that the deceased threw a punch at him causing the accused to protect his face and backpedal. The only evidence that I accept as credible, is the accused’s representations in recorded conversations that he perceived that the deceased had shaped up to him.
In those circumstances, I am comfortably of the view that the Crown has established, to the requisite standard, that the accused did not believe that he had to stab the deceased to defend himself.
I find that the accused’s perception that the deceased shaped up to him gave rise to an instantaneous surge of anger (from zero to a hundred) in which the accused stabbed the deceased, but not intending to cause grievous bodily harm.
The Crown has disproved self-defence beyond reasonable doubt. Furthermore, the act of stabbing the deceased with a knife (Exhibit J) is inarguably a dangerous act. The size of the knife and the sharpness of the blade leaves no room for doubt that using such an implement to stab another person, exposed the other to an appreciable risk of serious injury. The accused admitted as much during his evidence.
A reasonable person in the position of the accused, at the time the act was committed, would have realised that the act exposed the deceased to a risk of serious injury.
To be clear then, I am satisfied that the Crown has established each of the elements of manslaughter to the requisite standard. The basis of manslaughter is unlawful and dangerous act.
Dominic Saliba, on the charge that, on 9 December 2022, at Bomaderry in the State of New South Wales, you did murder Bailey Jones, I find you not guilty but guilty of manslaughter.

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Decision last updated: 03 April 2025

Medium Neutral Citation:	R v Saliba (No 3) [2025] NSWSC 296
Hearing dates:	11 – 14 March 2025, 17 – 20 March 2025, 24 – 26 March 2025
Date of orders:	2 April 2025
Decision date:	02 April 2025
Jurisdiction:	Common Law
Before:	Yehia J
Decision:	Dominic Saliba found not guilty of the murder of Bailey Jones, but guilty of manslaughter.
Catchwords:	CRIMINAL LAW – murder – trial by judge alone – alleged stabbing by the accused of his cousin – whether it was a deliberate act of the accused that caused the fatal wound – whether the accused intended to cause grievous bodily harm – manslaughter by unlawful and dangerous act as an alternative to murder – whether the prosecution has excluded the reasonable possibility that the accused acted in self-defence – not guilty of murder – guilty of manslaughter
Legislation Cited:	Crimes Act 1900 (NSW), ss 418, 419 Criminal Procedure Act 1986 (NSW), ss 132, 133 Evidence Act 1995 (NSW), s 38
Cases Cited:	R v Katarzynski [2002] NSWSC 613 Sivaraja v R; Sivathas v R [2017] NSWCCA 236 Wilson v The Queen (1992) 174 CLR 313; [1992] HCA 31
Category:	Principal judgment
Parties:	Rex (Crown) Dominic Saliba (Accused)
Representation:	Counsel: K Ratcliffe (Crown) R Khalilizadeh (Defence) Solicitors: Office of the Director of Public Prosecutions (Crown) Hugo Law Group (Defence)
File Number(s):	2022/00386498
Publication restriction:	Nil