R v Sandell - [2023] SASC 85

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)

R v SANDELL & ORS
Criminal Trial by Judge Alone
[2023] SASC 85
Reasons for the Verdicts of the Honourable Justice Kimber
30 May 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - ASSAULT OR UNLAWFUL STRIKING CAUSING DEATH
The defendants are jointly charged with one count of Murder alleged to have been committed on 28 August 2020. On 5 September 2020 the deceased passed away as the result of a blow(s) to the head deliberately delivered by at least one of the defendants.
On the prosecution case, the deceased was attacked in the car park of a high school as part of a joint enterprise involving all defendants to cause grievous bodily harm to the deceased. The prosecution case in the alternative is the defendants were part of a joint enterprise to assault the deceased and foresaw that grievous bodily harm might be occasioned by another co-venturer and with that awareness, continued to participate in the joint enterprise to assault.
Verdicts:
1. Each defendant is not guilty of Murder.
2. Each defendant is guilty of Manslaughter.
Criminal Law Consolidation Act 1935 (SA) s 11, referred to.
R v HJS (2020) 137 SASR 280; Miller v The Queen (2016) 259 CLR 380; McAuliffe v The Queen (1995) 183 CLR 108; Gillard v The Queen (2003) 219 CLR 1; R v Jarret (1994) 62 SASR 443; Catanzariti v The Queen [2021] SASCA 110; Tripodi v The Queen (1961) 104 CLR 1; Ahern v The Queen (1988) 165 CLR 87, applied.

R v SANDELL & ORS
[2023] SASC 85
Criminal: Trial by Judge Alone
KIMBER J:
Introduction................................................................................................................... 5
The pleas entered....................................................................................................... 5
A brief outline of the issues and the prosecution case........................................ 5
A brief outline of the positions of the defendants................................................ 6
The charge of murder............................................................................................... 7
Matters not in dispute and issues for determination............................................ 9
Some legal directions................................................................................................. 10
The onus of proof and separate consideration................................................... 10
The right to silence.................................................................................................. 10
Circumstantial evidence......................................................................................... 10
Expert evidence........................................................................................................ 10
The view.................................................................................................................... 11
The evidence................................................................................................................ 11
The CCTV footage — 28 August 2020................................................................ 11
The movements of Mr Sandell, Mr Codea and Ms X........................................ 12
The movements of Mr Mazomenos, Mr Pinnington and Mr Nicholls............ 12
The departure of the Commodore and the four defendants from the car park 13
The departure of Ms X and Mr Codea from AHS and arrival at the Royal Adelaide Hospital 13

Mr Codea at the Royal Adelaide Hospital and the post-mortem..................... 14
Dr Heath — the post-mortem.............................................................................. 14
Dr Heath — Subdural haemorrhages............................................................ 16
Dr Heath — Site of impact and direction of blow(s).................................. 16
Dr Heath — the number of blows................................................................. 17
Dr Heath — the degree of force.................................................................... 17
Dr Ovenden............................................................................................................ 17

The evidence of Ms X.............................................................................................. 18
Background............................................................................................................ 18
Events at Welland................................................................................................. 18
The drive into the city........................................................................................... 19
Initial events in the car park................................................................................ 19
Mr Sandell exits the Toyota and the alleged assault begins............................ 20
Ms X leaves the car and the Commodore departs............................................ 20
Ms X returns to the Toyota.................................................................................. 21
The efforts of Ms X to contact Mr Sandell and/or Ms Tassone....................... 21
Ms X returns to Welland...................................................................................... 21

Ms X — Prior inconsistent statements, lies and omissions.............................. 22
Lies and omissions................................................................................................ 22
Prior inconsistent statements.............................................................................. 23
Contacting Mr Codea to catch up on 28 August 2020............................... 23
The exit of Ms X from the Toyota................................................................ 23
How many men spoke to her......................................................................... 24
Consideration of the lies, omissions and inconsistent statements of Ms X.... 24
The circumstances in which Ms X made her observations.............................. 25

The evidence of Ms X that I accept...................................................................... 25
The fatal blow(s)................................................................................................... 28
The evidence of Ms X about the appearances of the three men she did not know 29

The arrests of the defendants................................................................................ 29
Mr Pinnington’s interview with the police........................................................ 30
The conversation between Mr Pinnington and Mr Nicholls at the City Watch House 31

The mobile phones of the defendants................................................................... 32
The phones connected to Mr Mazomenos.......................................................... 33
The phones connected to Mr Sandell.................................................................. 33
The phones seized from 10/40 Hume Street, Salisbury Downs....................... 33
Messaging applications........................................................................................ 34

Discreditable conduct.............................................................................................. 35
Involvement of Mr Sandell in drugs................................................................... 35

Connections between the defendants, the deceased and Ms X........................ 35
The deceased, Mr Sandell and Ms X.................................................................. 35
Mr Sandell and Mr Mazomenos.......................................................................... 35
Mr Sandell, Mr Mazomenos, Mr Pinnington and Mr Nicholls....................... 36

Fingerprints and DNA............................................................................................ 36
DNA........................................................................................................................ 36
Fingerprints........................................................................................................... 37

The appearance of each defendant on the night of 28 August 2020.............. 38
Who were the three males at the Toyota after Mr Sandell left that car?....... 39
Mr Pinnington was on the front passenger side............................................... 39
Mr Mazomenos and Mr Nicholls are at the driver’s side of the Toyota........ 39

Events before 28 August 2020................................................................................. 40
Introduction.............................................................................................................. 40
The incident involving Jimmy Taskos................................................................. 41
Ms Wu..................................................................................................................... 41
The evidence of Ms Wu about the incident at Kent Town................................ 42
Mr Taskos.............................................................................................................. 43
Mr Agostino........................................................................................................... 45
The incident at the apartment of Mr Taskos — findings.................................. 46
Discreditable conduct — the assault on Mr Taskos......................................... 46

Communications on Discord and other platforms............................................. 47
Limits on the use of the communications........................................................... 47
Some of the key communications........................................................................ 48
The note made by Mr Sandell on 16 August 2020..................................... 48
Messages on 24 August 2020 between Mr Taskos and Mr Sandell......... 49
Messages on 24 August 2020 between Mr Sandell and Ms Tassone....... 53
The involvement of Mr Sandell in the assault of Mr Taskos.................... 53
Messages on 25 August 2020 between Ms Tassone and Mr Sandell....... 54
Messages between Mr Sandell and Ms Tassone on 26 August 2020....... 55
Communications between Mr Sandell and Mr Codea..................................... 59
The message from Mr Sandell to Brandon Tran at 7.20pm on 28 August 2020   59
Ms Tassone and text messages with Mr Sandell on 28 August 2020............. 59
The evidence of Ms Tassone......................................................................... 59
The text messages between Ms Tassone and Mr Sandell on 28 August 2020      60
Should the state of mind of Mr Sandell about the seriousness of the assault be used in the cases of the other defendants?........................................................................................... 65
Mr Sandell was communicating with Mr Mazomenos while in the Toyota with Mr Codea        66

Events after the return of Mr Sandell to the Avani........................................... 67
Messages after leaving AHS................................................................................ 67
Contact between Mr Mazomenos and Mr Sandell on 29 August 2020.......... 67

The motive for the two incidents involving Mr Taskos and Mr Codea.......... 68
The First Issue — Did the defendant participate in a joint enterprise at least to assault Mr Codea........................................................................................................................................ 69
The Second Issue — Was the agreement to cause grievous bodily harm to Mr Codea and was the blow (or blows) that was (or were) a substantial cause of death inflicted with that intention 71
Whether the agreement was to cause GBH......................................................... 71
Was the fatal blow(s) inflicted with the intent to cause GBH.......................... 75
The Third Issue — Was the fatal blow(s) delivered with the intention of causing GBH by a member to the joint enterprise to assault, and if so, did the defendant foresee that as a possibility and, not withstanding this, participate in the joint enterprise........................ 75
Manslaughter.............................................................................................................. 76
Verdicts........................................................................................................................ 78
Introduction

On 5 September 2020, Mr Victor Codea (the deceased) passed away as a result of a severe traumatic brain injury caused by a blow (or blows) to his head.
The blow (or blows) which was (or were) a substantial cause of the death of Mr Codea (the fatal blow(s))[1] were deliberately inflicted at about 9.37pm on 28 August 2020 in a car park (the car park) at Adelaide High School (AHS) on West Terrace, Adelaide. No weapon was used. The fatal blow(s) was a kick(s), a punch(es) or a combination of both.
[1] I will use the term ‘fatal blow(s)’ to refer to the blow (or blows) which was (or were) a substantial cause of the death of Mr Codea.
Mr Codea arrived at the car park at around 9.36pm in a car driven by himself with two passengers, Mr Sandell and Ms X. Ms X was the only witness to what occurred in the car park. Shortly after that, Mr Mazomenos, Mr Pinnington and Mr Nicholls entered the car park together in a separate vehicle. The four defendants were together in the car park for about 70 or 80 seconds during which time the fatal blow(s) was delivered while Mr Codea was seated in the driver’s seat of his vehicle. The four defendants then left the car park together in the vehicle in which Mr Mazomenos, Mr Pinnington and Mr Nicholls had arrived.
The four defendants are jointly charged with the offence of Murder contrary to s 11 of the Criminal Law Consolidation Act 1935 (SA). The particulars of that offence are:
Jeremy Dale Sandell, Kain Mazomenos, Thomas Charles Pinnington and Thomas Nicholls, on the 28th day of August 2020, at Adelaide, murdered Victor Andreas Codea.
I find each defendant not guilty of murder but guilty of manslaughter. These are my reasons for so finding.
The pleas entered
At the commencement of the trial, all defendants pleaded not guilty to Murder. Upon his arraignment, Mr Sandell entered a guilty plea to the automatic alternative offence of manslaughter. Mr Sandell was the only defendant to enter any plea to manslaughter. The guilty plea by Mr Sandell was not accepted by the prosecution. As that guilty plea was not accepted it is deemed to have been withdrawn and may be described as a nullity.[2] Later in these reasons, I will address whether I have given the guilty plea of Mr Sandell any evidential effect in the case with respect to him. The guilty plea of Mr Sandell has no evidential effect in the respective cases of the other three defendants.
[2] R v HJS (2020) 137 SASR 280, 286 [28]–[31].
A brief outline of the issues and the prosecution case
At the time of the fatal blow(s), the deceased was in the driver’s seat of a Toyota Corolla registered S331CAE (the Toyota). On the prosecution case, the motive for what occurred was messages that were posted on a communication application known as Discord. The messages were critical of Mr Sandell and Mr Mazomenos. Discord is a communication platform which was used to buy and sell drugs. On the prosecution case, at least Mr Sandell and Mr Mazomenos believed that Mr Codea was responsible for those messages.
For reasons to be given, two defendants struck Mr Codea to the head; the fatal blow(s) might have been a single blow and the defendant(s) who delivered the fatal blow(s) cannot be determined beyond a reasonable doubt. Therefore, the prosecution relies upon the doctrines of joint enterprise and extended joint enterprise. In her closing address, the prosecutor abandoned any reliance upon the doctrine of aiding and abetting.
The prosecution says each defendant is responsible for the conduct which caused death as each was a member of a joint enterprise to attack the deceased in the car park and, having entered that joint enterprise, each defendant participated. The prosecution says the joint enterprise was to intentionally cause grievous bodily harm (GBH).
If the evidence does not establish that a defendant was part of the joint enterprise to intentionally cause GBH, the prosecution relies upon extended joint enterprise. On this approach, the prosecution says each defendant joined a joint enterprise to assault the deceased, foresaw the possibility that another member of that joint enterprise might intentionally inflict GBH and with that foresight, participated in the joint enterprise to assault.
A brief outline of the positions of the defendants
No defendant gave evidence and nor did any defendant dispute:
·that all four defendants were present in the car park when the fatal blow(s) was deliberately delivered by at least one of them;
·that Mr Sandell and Mr Codea had arrived at the car park together in the Toyota driven by Mr Codea with Ms X in the rear;
·that Mr Mazomenos, Mr Pinnington and Mr Nicholls arrived together in a car belonging to Mr Mazomenos almost immediately after the Toyota; or,
·that all four defendants left the car park together in Mr Mazomenos’ car after Mr Codea had been struck.
All defendants dispute that the evidence establishes beyond a reasonable doubt the fatal blow(s) was delivered with the intention of causing GBH. Even if the prosecution establishes beyond a reasonable doubt the fatal blow(s) was inflicted with that intention, each defendant disputes being part of a joint enterprise to intentionally cause that harm. Each defendant also disputes foreseeing the possibility any defendant might act with intent to cause GBH.
Consistent with his guilty plea which was not accepted, the position of Mr Sandell is that he is guilty of manslaughter.
The position of Mr Mazomenos is that the evidence does not establish he is guilty of any offence. The approach of Mr Mazomenos at trial is also consistent with him disputing that any blow was unlawful.
Mr Pinnington does not dispute the evidence can establish that he went to the front passenger side of the Toyota and was in that position when the fatal blow(s) was delivered. Mr Pinnington makes no concession about his guilt of any offence but says that if he is guilty of any offence, it is manslaughter.
Mr Nicholls does not dispute the evidence can establish he went to the driver’s side of the Toyota and was on that side of the vehicle when the fatal blow(s) was delivered. Mr Nicholls makes no concession about his guilt of any offence but says that if he is guilty of any offence, it is manslaughter.
The charge of murder
A person commits murder if he/she causes the death of another person deliberately and unlawfully whilst at the same time intending to cause death or GBH. As the prosecution concedes the evidence cannot establish an intention to kill, I will refer only to an intention to cause GBH.
There are four elements to the charge of murder which must be established beyond a reasonable doubt:
1.The act or acts of a defendant was, or were, a substantial cause of the death of the deceased (the act or acts);
2.The act or acts were voluntary (i.e. – the result of the exercise of the will);
3.The act, or acts, was, or were, done with the intention to cause grievous bodily harm to the deceased. Grievous bodily harm means ‘really serious harm’. The intention must exist at the time of the act or acts which caused the death of the deceased; and
4.There was no lawful excuse for the act or acts (i.e. – self-defence or defence of another must be excluded).

As set out above, the primary case of the prosecution is that each defendant was part of a joint enterprise (or agreement) to intentionally cause GBH to the deceased and, having entered into that agreement, each participated. In Miller, Smith and Presley v The Queen a majority of the High Court stated:[3]
The law, as stated in McAuliffe, is that a joint criminal enterprise comes into being when two or more persons agree to commit a crime. The existence of the agreement need not be express and may be an inference from the parties’ conduct. If the crime that is the object of the enterprise is committed while the agreement remains on foot, all the parties to the agreement are equally guilty, regardless of the part that each has played in the conduct that constitutes the actus reus.
(Footnote omitted)
[3] (2016) 259 CLR 380, 388 [4] (French CJ, Kiefel, Bell, Nettle and Gordon JJ).
On this basis, and mindful that the evidence cannot establish beyond a reasonable doubt which defendant(s) delivered the fatal blow(s), the prosecution must prove beyond a reasonable doubt:
1.A defendant(s) committed the four elements of murder.
2.The defendant being considered was a member of a joint enterprise to commit that crime before it was committed.
3.While a member of that joint enterprise, the defendant was present when the crime was committed.
4.When present and before the crime was committed, the defendant participated in the joint enterprise in some way.
The mere presence of a defendant when a crime is committed is not sufficient to prove that person was part of a joint enterprise to commit that crime. However, as to the second and fourth matters immediately above, the presence of a defendant when the crime was committed can be evidence that he was a member of a joint enterprise and evidence of participation.
The prosecution also relies upon the doctrine of extended joint enterprise. On this basis, the prosecution case is that all defendants were part of a joint enterprise to assault the deceased. An assault is an unlawful and intentional application of force. The doctrine of extended joint enterprise provides that ‘a person is guilty of murder where he or she is a party to an agreement to commit a crime’ (e.g. – an assault) ‘and foresees that death or really serious bodily injury might be occasioned by a co-venturer acting with murderous intention and he or she, with that awareness, continues to participate in the agreed criminal enterprise’.[4]
[4] Ibid, 387 [1] (French CJ, Kiefel, Bell, Nettle and Gordon JJ); see also: McAuliffe v The Queen (1995) 183 CLR 108; Gillard v The Queen (2003) 219 CLR 1.
On this basis, in this case the prosecution must prove beyond a reasonable doubt:
1.A defendant(s) committed the four elements of murder.
2.Before that crime was committed, the defendant being considered was part of a joint enterprise to at least assault the deceased with the defendant(s) who committed all the elements of murder.
3.While a party to the joint enterprise to assault the deceased, and before a defendant(s) committed all the elements of murder, the defendant foresaw that a member of the joint enterprise might assault the deceased with the intention of causing GBH and, with that foresight, continued to participate in the agreed joint enterprise.
As with joint enterprise, mere presence is not sufficient to prove the defendant was a member of the joint enterprise to at least assault nor participation in the joint enterprise, but a presence can be evidence of one, or both, of those things.
Matters not in dispute and issues for determination
As I have already identified, there is no dispute that the defendants were present in the car park at the time the blow or blows which were a substantial cause of the death of the deceased were deliberately inflicted on Mr Codea by one or more of them. Among what is contested in the case of each defendant is that there was a joint enterprise to cause GBH and that the fatal blow(s) was inflicted with that intention.
Therefore, for the prosecution case to succeed in the context of the above, it must be established beyond a reasonable doubt that:
1.the defendant entered into, and participated in, a joint enterprise to at least assault Mr Codea (the first issue); and either,
1.1 the joint enterprise was to cause grievous bodily harm and the fatal blow(s) was inflicted with that intention (the second issue); or,
1.2 the fatal blow(s) was inflicted with the intention of causing grievous bodily harm by a member of the joint enterprise to assault, the defendant foresaw that possibility and, notwithstanding that foresight, continued to participate in the joint enterprise (the third issue).
To establish its case, the prosecution relies on a body of evidence of events surrounding the assault. After addressing some legal directions below, I propose to deal with this body of evidence prior to addressing the above issues.
Some legal directions
It is not necessary for a Judge, having conducted a trial without a jury, to set out the standard legal directions of which a Judge is bound to be aware. However, I note the following principles which I have applied.
The onus of proof and separate consideration
The onus of proof is beyond a reasonable doubt. Each defendant is presumed innocent unless and until his guilt has been proved beyond a reasonable doubt. This requirement extends to proof beyond a reasonable doubt of every element of the offence charged. To the extent that any defendant has put forward a defence, or innocent explanation, he does not have to prove it. The burden of proving an offence lies wholly upon the prosecution. It is not sufficient for the prosecution to show a suspicion of guilt or that a defendant is probably guilty. A defendant can only be found guilty of an offence if the evidence proves his guilt beyond a reasonable doubt.
Each defendant, and the evidence admissible with respect to him, must be given separate consideration.
The right to silence
No defendant gave evidence. The exercise of that right must not be used against a defendant and must not be treated as evidence. The choice not to give evidence cannot be used to fill any gaps in the evidence. It does not make the prosecution case stronger or more persuasive.
Circumstantial evidence
The prosecution relies upon circumstantial evidence.
A guilty verdict cannot be returned unless the evidence is inconsistent with any reasonable hypothesis other than guilt. Guilt must be the only rational inference. There are two steps in approaching a circumstantial case. First, to consider the evidence upon which the prosecution relies and decide what facts are established. Second, to consider what inference, or inferences, can be drawn from the established facts. The second step requires a consideration of the combined strength of the facts established by the evidence. There cannot be a guilty verdict unless the circumstances exclude any reasonable explanation consistent with innocence. In other words, before any defendant can be found guilty of an offence, guilt must be the only rational inference to be drawn from the facts or circumstances which I accept are established on the evidence.
Expert evidence
Evidence was given by the following experts: Dr Ovenden, Dr Heath, Ms Handt and Brevet Sergeant Logan. There were also agreed facts about the comparison of fingerprint impressions located on the Toyota. In addition, Brevet Sergeant Porter gave evidence about the analysis of data extracted from various mobile phones and about certain communication applications. Relevant aspects of the evidence of Brevet Sergeant Porter are best characterised as evidence based upon his experience as a police officer rather than as expert evidence.
The usual rule is that witnesses can only give evidence of facts not opinions or conclusions drawn from those facts. An exception to that rule is that a properly qualified expert can give evidence of their opinion on matters within their expertise. There are two key rules in assessing expert evidence. First, it is for the trier of fact to decide what evidence to accept and what weight to give to it and as with any other witness, there is no requirement to blindly adopt the opinion of an expert witness simply because they are an expert. Second, an expert witness is to be assessed in the same way as any other witness, but with other considerations in mind. Those considerations include: an assessment of whether the witness appeared impartial or biased; how their evidence fits with other accepted evidence and whether the witness had been referred to all the relevant facts in forming an opinion.
In this case, there is no dispute as to the expertise of any of the expert witnesses nor about the evidence of Brevet Sergeant Porter. There is no dispute that I should accept the agreed facts. The issue is what inferences I should draw from the evidence of these witnesses and the agreed facts in the context of the other evidence in the case.
The view
During the trial a view was held. The view is not evidence but can assist in understanding the evidence.
The evidence
The prosecution led a substantial body of evidence with respect to events before all defendants were in the city by about 8.02pm on 28 August 2020 and a substantial number of communications by Mr Sandell after that time. However, as there is no dispute all four defendants were in the city by about 8.02pm on 28 August 2020, and were later in the car park at AHS at the same time as Mr Codea and Ms X, it is helpful to turn at this point to the evidence of CCTV footage from 28 August 2020 and the evidence of Ms X.
The CCTV footage — 28 August 2020
CCTV footage from various locations was tendered.[5] There are also stills from that footage, a description of what can be seen and at what times.[6] This is evidence admissible with respect to all defendants. The CCTV footage shows the movements of the four defendants, Mr Codea and Ms X on the night of 28 August 2020. The identity of each relevant person depicted in the CCTV footage is an agreed fact.[7] Further, there is no dispute about what is shown in the CCTV footage, the descriptions provided of what can be seen and, at least, the approximate times of the events shown.
[5]    Exhibit P16.
[6]    Exhibits P17–P21.
[7]    T443.
I find the matters in [41]–[52] established based upon the CCTV footage and some of the agreed facts.[8]
The movements of Mr Sandell, Mr Codea and Ms X
[8] Exhibit P42.
On the night of 28 August 2020, Mr Sandell was staying at the Avani Apartments at 176 Franklin Street, Adelaide (the Avani). Mr Sandell had been staying at the Avani since 16 August 2020. At about 8.45pm on 28 August 2020, Mr Sandell and Mr Codea are together at the Avani. They leave those apartments together at about 9.19pm and drive from the city in the Toyota which is being driven by Mr Codea. At 9.19pm, Ms X arrives in a car park at Welland in her own vehicle. Mr Codea and Mr Sandell arrive at that car park in the Toyota at about 9.25pm. Ms X enters the rear of the Toyota. The Toyota departs the car park at Welland and heads back towards the city. Mr Codea is driving, Mr Sandell is in the front passenger seat and Ms X is in the rear.
At about 9.35pm, the Toyota is on the eastern carriageway of West Terrace heading south. At about 9.36pm, the Toyota is on the western carriageway of West Terrace heading north. The Toyota then turns into the car park at AHS which is accessed from the western carriageway of West Terrace. The respective positions of Mr Codea, Mr Sandell and Ms X remain as they were when the Toyota left Welland.
The movements of Mr Mazomenos, Mr Pinnington and Mr Nicholls
On 28 August 2020, Mr Mazomenos was staying at the Oaks Suites at 104 North Terrace, Adelaide (the Oaks). He had been staying there since 21 August 2020. At about 8.02pm on 28 August 2020, Mr Pinnington drove a Holden Astra (the Astra) into the ‘CarePark’ behind the Oaks Suites (the CarePark). The Astra was registered to the parents of Mr Pinnington. At 8.06pm, Mr Pinnington and Mr Nicholls walked out of the CarePark together. I am satisfied they were both in the Astra when it drove into the CarePark. At 8.06pm, Mr Pinnington and Mr Nicholls walked past the entrance to the Oaks on North Terrace and went to a hotel further east on North Terrace. Mr Pinnington and Mr Nicholls are at that hotel for less than 20 minutes. At about 8.25pm, Mr Pinnington and Mr Nicholls enter the lobby of the Oaks after Mr Mazomenos opens the door for them. The three men walk past reception and beyond the view of the CCTV.
At about 8.36pm, Mr Mazomenos, Mr Pinnington and Mr Nicholls leave the Oaks together and walk into the CarePark. At about 8.37pm, a Commodore registered S157BXF (the Commodore) leaves the CarePark. The Commodore belongs to Mr Mazomenos.
At about 8.45pm, the Commodore parks adjacent to the Elephant and Castle Hotel on West Terrace. That hotel is south of AHS and on the opposite side of West Terrace. Mr Mazomenos exits from the driver’s seat. Mr Nicholls exits from the front passenger seat. Mr Pinnington exits from the rear. Mr Nicholls and Mr Pinnington purchase items in the drive through of the hotel. At about 8.49pm, Mr Mazomenos returns to the driver’s seat of the Commodore, Mr Nicholls returns to the front passenger seat and Mr Pinnington returns to the rear.
At about 8.58pm the Commodore arrives in the car park of the McDonald’s Restaurant on West Terrace (the McDonald’s). The McDonald’s is north of AHS and on the opposite side of West Terrace. Mr Mazomenos, Mr Pinnington and Mr Nicholls remain at the McDonald’s until about 9.31pm. At 9.31pm, they go in the direction of the Commodore and all three are in the Commodore when it leaves the car park at about 9.33pm. The Commodore turns onto West Terrace and heads south on the eastern carriageway of that road. The Commodore parks on the eastern side of West Terrace at about 9.35pm. It is parked approximately opposite, but north of, the entrance to the car park of AHS. I am satisfied the entrance to that car park could be seen from the position of the Commodore.
As set out above, the Toyota turns into the car park of AHS at about 9.36pm. At about 9.38pm the Commodore travels a short distance south on West Terrace, crosses over the western carriageway and drives into the car park of AHS. A particular CCTV camera has this occurring between 9.38.05pm–9.38.21pm.
The departure of the Commodore and the four defendants from the car park
The CCTV camera immediately above shows the Commodore leaving the car park at 9.39.28pm. The Commodore was in the car park for no more than about 70 or 80 seconds.
At about 9.42pm, the Commodore stops near the Avani and Mr Sandell enters those apartments. At about 9.47pm, the Commodore enters the CarePark. Mr Mazomenos is driving. Mr Nicholls is in the front passenger seat. I am satisfied Mr Pinnington was in the rear. At about 9.51pm, Mr Mazomenos exits the CarePark and enters the Oaks.
At about 9.54pm, the Astra leaves the CarePark. Mr Pinnington is driving. The Astra leaves the city heading west. I am satisfied Mr Nicholls was also in the Astra.
The departure of Ms X and Mr Codea from AHS and arrival at the Royal Adelaide Hospital
At about 9.45pm, the Toyota leaves the car park of AHS and drives to the Royal Adelaide Hospital (RAH) arriving at about 9.46pm. Ms X is driving. At 9.49pm, Ms X enters the emergency department. Mr Codea remains in the front passenger seat. At about 10.01pm, Mr Codea is removed from the Toyota and taken into the emergency department on a stretcher.
Ms X leaves the RAH in the Toyota at about 10.12pm. She returns to the car park at Welland, arriving there at about 10.22pm. Ms X leaves the Toyota in that car park and departs in her own car at about 10.26pm.
Mr Codea at the Royal Adelaide Hospital and the post-mortem
As set out above, Ms X drove Mr Codea to the RAH. There is no dispute that Mr Codea was admitted to the RAH and he was treated there before he passed away on 5 September 2020. There is also no dispute about the evidence of the post‑mortem given by Dr Heath.
The deceased was admitted to the RAH at about 10.02pm on 28 August 2020. He was in a critical condition. He was unconscious and his presentation was consistent with him having suffered a severe brain injury.[9] The only injuries noted at the time of his admission were a subgaleal haematoma to the left-hand side of his head and an abrasion on his left forehead. The subgaleal is a region in the soft tissue under the scalp.[10] A CT scan was performed at 10.10pm. That scan showed ‘a large 2.1cm maximum thickness acute subdural haematoma’. A subdural haematoma is a ‘large collection of blood inside the skull’.[11] The subdural haematoma was ‘exercising a significant degree of pressure and mass effect on the normal brain structures’.[12] The structures in the brain which normally sit in the midline had been pushed more than 1.5 centimetres across to the other side.[13]
[9] Dr Ovenden T290.
[10] Ibid, 291.
[11] Ibid, 292.
[12] Ibid.
[13] Ibid.
There is no dispute the cause of death was ‘blunt force trauma’ caused by a blow (or blows) inflicted while all four defendants were in the car park.
Dr Heath — the post-mortem
The post-mortem was performed by Dr Heath on 7 September 2020 at the Forensic Science Centre in Adelaide. Dr Heath is a forensic pathologist. The report prepared by Dr Heath following the post-mortem was tendered without objection.[14] The evidence of Dr Heath was that her report truthfully sets out her observations and opinions.[15] I accept that evidence and the content of her report.
[14] Exhibit P35.
[15] Dr Heath T461.
As I have said, the cause of death was ‘blunt force trauma’. On the prosecution case, Mr Codea was punched and/or kicked to the head. Both a punch and a kick are types of blunt force trauma.
The report of Dr Heath includes the following:[16]
The assessment of injuries observed at post mortem examination and on neuropathological examination was somewhat compromised by the time interval between the infliction of injury and death, as well as by intervening surgical intervention.
At post-mortem examination bruising was evident over the left frontoparietal scalp, overlaying the area of the fronto-temporo-parietal craniectomy site. This bruising may have occurred during the assault, and may reflect a blow to the left side of the head, however assessment of the bruising was compromised by subsequent medical intervention and the elapsed time between the alleged assault and death. The pre-operative CT scan performed on admission to the Royal Adelaide Hospital (and prior to neurosurgical intervention) reportedly showed a frontal scalp haematoma. This would be in keeping with the scalp haematoma occurring prior to the deceased arriving at the hospital, and possibly occurring as a result of the alleged assault.
At post mortem examination there was faint yellow bruising surrounding the right eye. Subcutaneous dissection showed no subcutaneous bruising around the right eye. The yellow discolouration of the skin most likely represents tracking of bruising resulting from either the alleged assault or from subsequent neurosurgical intervention, rather than reflecting an application of force to the eye region itself. There was also an area of yellow discolouration on the left side of the neck. Subcutaneous examination showed no evidence of bruising on the left side of the neck. The yellow discolouration most likely represents tracking of the bruising from the left frontoparietal region.
Subcutaneous dissection of the head and neck at post mortem examination showed bruising of the right temporalis muscle and the right side of the neck, below the jawline. These bruises may have occurred during the assault, and may reflect blows to the right side of the head. However it is also possible that the bruising may have occurred during medical intervention in hospital, or represent tracking of bruising from another site.
Other injuries identified at post mortem examination included superficial abrasions to the back of the scalp. There was no bruising underlying these abrasions. These abrasions may have occurred during the alleged assault, however they may have also occurred subsequently in hospital.
A parchmented superficial abrasion was present on the right earlobe. There was no subcutaneous bruising below the abrasion. The abrasion may have occurred during the alleged assault, however this cannot be determined with any certainty.
The brain was referred for formal neuropathological examination which showed residual organising left subdural haemorrhage, with microscopic appearances consistent with an age of approximately seven days. The brain was swollen with bilateral transtentorial herniation and disruption of the rostral brain stem by secondary haemorrhages. There was recent hypoxic-ischaemic damage and patchy infarction of the anterior, middle and posterior vascular territories. These findings are in keeping with swelling of the brain and raised intracranial pressure. Other findings on neuropathological examination included recent small haemorrhages in the corpus callosum. This finding is in keeping with a rotational injury and suggestive of a lateral impact to the head rather than a front-to-back impact to the head.
There was no information from the neuropathological examination to suggest a precise site of impact to the head, or to suggest the number of blows which occurred.
[16] Exhibit P35.

Dr Heath also observed nine injuries which she described as ‘recent’. Those injuries were:[17]
[17] Ibid, 5.
1.     20 x 19mm triangular crusted healing superficial abrasion left forehead.
2.     9 x 3mm crusted healing superficial abrasion left forehead.
3.     11 x 8cm bruise left frontoparietal scalp, extending down to the left outer canthus.
4.     10 x 4cm area of faint yellow discolouration around the right eye.
5.     16 x 13mm parchmented superficial abrasion right earlobe.
6.     11 x 7cm area of faint yellow discolouration right side of neck.
7.     16 x 7cm area of faint yellow discolouration left side of neck.
8.     50 x 10mm superficial abrasion occipital scalp.
9.     20 x 10mm superficial abrasion occipital scalp.
Dr Heath — Subdural haemorrhages
Dr Heath described the subdural haemorrhage referred to in her report as the ‘primary injury’ to the deceased.[18] She explained that a subdural haemorrhage can be caused by blunt force trauma and that such an injury is caused as a result of the brain moving inside the skull.[19] She said that when that occurs rapidly from a blow to the head, the small blood vessels can tear causing blood to build up in the space around the brain.[20]
Dr Heath — Site of impact and direction of blow(s)
[18] Dr Heath T486–7.
[19] Ibid 473.
[20] Ibid.
Dr Heath gave evidence about whether a precise site of impact, direction of blow(s) and number of blow(s) could be identified from the post-mortem. Dr Heath said that there were no injuries which allowed her to express an opinion with respect to the site of the impact to the head.[21] As I understand her evidence, such an opinion may be possible when there are what she described as ‘localising injuries’. With respect to ‘localising injuries’, Dr Heath gave examples of an injury like a fracture to the skull and bruising to the scalp or surface of the brain.[22] There were no such injuries consistent with a blow in this case. Dr Heath said that the subdural haemorrhage was not a ‘localising injury’. Dr Heath said she also could not express an opinion as to the direction from which any blow had been delivered to the deceased.[23] Although the subdural haemorrhage was on the left side of the deceased, Dr Heath said that did not mean the blow was to that side. Dr Heath said ‘the blow could be on the right because the subdural haemorrhage occurs from a tearing of those little vessels which comes from the shaking of the brain within the skull itself and that can come from a blow to any side of the head’.[24]
Dr Heath — the number of blows
[21] Ibid 484–5.
[22] Ibid.
[23] Ibid 494.
[24] Ibid 484.
In relation to the number of blows, Dr Heath said there was insufficient information available at post-mortem for her to express an opinion.[25] Dr Heath told me that the subdural haemorrhage could have been caused by a single blow or more than one blow.[26] Taking account of all the injuries she observed, Dr Heath said she could not say how many blows had been inflicted.[27] This opinion took account of the nine ‘recent’ injuries about which she said there was insufficient information to enable her to say whether they were from an assault or medical intervention. Dr Heath said that both the time between the assault and post‑mortem and the medical intervention may have ‘changed the appearance of or obscured injuries which may have been from the alleged assault’.[28]
Dr Heath — the degree of force
[25] Ibid 486.
[26] Ibid.
[27] Ibid.
[28] Ibid 494.
Dr Heath said that she could not give an opinion ‘with any degree of accuracy’ about the force required to cause the subdural haemorrhage.[29] She said that such an injury could be caused with ‘relatively trivial trauma’ or even without a blow to the head, but that was more likely to occur in the elderly and people with underlying brain disease. Dr Heath said the deceased had no underlying natural disease which would make a subdural haemorrhage occur more easily.[30]
Dr Ovenden
[29] Ibid.
[30] Ibid 495.
The expert evidence which might shed light on the degree of force and number of blows is not limited to the evidence of Dr Heath. Evidence was also given by Dr Ovenden.
Dr Ovenden is a registrar in the neurosurgery department at the RAH. Dr Ovenden was involved in the care of Mr Codea but working under a surgeon who had the primary responsibility for Mr Codea at the RAH. The evidence of Dr Ovenden as to the number of blows delivered to the deceased based upon his injuries corresponded with that of Dr Heath. However, in contrast to Dr Heath, it was the opinion of Dr Ovenden the injury to the brain of the deceased suggested ‘a reasonably high degree of force’.[31] Where the opinions of Dr Heath and Dr Ovenden differ, I prefer the evidence of Dr Heath. Dr Heath is a Fellow of the Royal College of Pathologists. Dr Heath has worked fulltime at the Forensic Science Centre since 2005 and has performed about two and a half thousand autopsies.[32] In giving evidence about the degree of force needed to cause the subdural haemorrhage, Dr Heath supported her opinion by reference to studies.[33] Dr Ovenden impressed me when giving evidence, but the evidence led of his experience was limited. As he is a registrar, I infer he is not yet a Fellow of any relevant College. In expressing his opinion about the degree of force, he did not refer to any studies.
[31] Dr Ovenden T295.
[32] Dr Heath 460–461.
[33] Ibid 494–495.
The evidence of Ms X
Background
Putting aside the defendants, Ms X was the only person with the deceased at the time of the events in the car park of AHS at about 9.37pm.
At the time of trial Ms X was 26 years of age. She knew the deceased before the night of his death. She had met him when she was at university some years before.[34] Ms X said that she had last seen the deceased about two weeks before 28 August 2020. She said before that, she had not seen him for about a year.[35] On 28 August 2020, Ms X was a user of cannabis and methylamphetamine. She said that before meeting Mr Codea at Welland, she had been communicating with him that day about purchasing half a gram of methylamphetamine.[36] Ms X said she and the deceased were in contact using the social media platform Snapchat. In order to make the purchase, she and the deceased arranged to meet in the shopping centre car park at Welland.[37] Ms X had her own vehicle.
Events at Welland
[34] Ms X T150–151.
[35] Ibid 152.
[36] Ibid 154.
[37] Ibid.
Ms X told me that she arrived at Welland before the deceased.[38] CCTV footage establishes Ms X arrived at 9.19pm and the deceased at 9.25pm. There is no dispute Mr Sandell was with the deceased when he arrived and that he was in the front passenger seat. Ms X then approached the Toyota. Ms X said the deceased told her to get into the rear of the car, which she did. Ms X said she purchased methylamphetamine, exchanging cash for a single container of that drug.
[38] Ibid 156.
Ms X said she recognised Mr Sandell. She had met him before and knew his then partner, Ms Tassone. Ms X said that she was expecting to leave immediately after making the exchange but decided to remain as the deceased asked her to come for a drive. She said:[39]
I made the exchange of the drugs and was going to be on my way, but Victor persisted that I attend for a car drive with him. I didn't ask questions and he just suggested that it was going to be no more than 10 minutes, one smoke worth to, yeah, before he brought me back to my car.
The drive into the city
[39] Ms X T158.
Ms X said the deceased drove back towards the city. She said Mr Sandell had his phone in his hand, but he did not speak on the phone. She was unable to say if he was using the phone to communicate in some other way.[40]
[40] Ibid 159.
I pause to observe that, for reasons to be given, I am satisfied Mr Sandell was communicating with Mr Mazomenos while in the Toyota. The movements of Mr Mazomenos on West Terrace are only consistent with him knowing the movements of Mr Codea. Mr Mazomenos must have been learning that from Mr Sandell.
The deceased drove onto West Terrace and initially headed south on the eastern carriageway of that road. The deceased turned right from West Terrace onto Sir Donald Bradman Drive before making a U-turn and turning left back on to West Terrace.[41] At that point he was south of the car park, on the western side of West Terrace and heading north. Ms X told me that the deceased went to turn into a driveway (or road) that led to a soccer club but did not make that turn.[42] Mr Codea drove a little further south and then turned left into the car park of AHS. Upon entering the car park, the deceased parked his car in a bay of car parks.[43] The Toyota was facing south.
Initial events in the car park
[41] Ibid.
[42] Ibid 161–162.
[43] Ibid.
Once in the car park, Ms X said she saw an exchange of what she took to be drugs between Mr Sandell and the deceased. Ms X said the deceased then passed drugs to her.[44] Ms X said that at about that time, a car pulled up behind the Toyota. There is no dispute that was the Commodore in which Mr Mazomenos, Mr Pinnington and Mr Nicholls were travelling. Ms X said the Commodore parked at a right angle to the Toyota.[45]
Mr Sandell exits the Toyota and the alleged assault begins
[44] Ibid 165.
[45] Ibid 164.
Ms X said Mr Sandell exited through the front passenger side door and went to the vehicle in which the other three defendants had arrived.[46] Ms X said she saw three other males come to the Toyota. Ms X said Mr Codea was in the driver’s seat with his seatbelt on. She said one of the three men was at the passenger side, the other two were at the driver’s side.[47] On the driver’s side there was one male standing closer to the deceased than the other. Ms X said that the deceased was struck by two of the men. She saw both punches and kicks.[48] When asked how long passed between the door of the car being opened after the arrival of the men at the car and the kicking and punching, Ms X said ‘It was instant.’[49]
[46] Ibid 165.
[47] Ibid.
[48] Ibid 166.
[49] Ibid.
Ms X said the male closest to the driver’s side was the person punching, or at least attempting to punch, the deceased. Ms X said the punches were ‘forceful’ and consistent ‘for what felt like 10 seconds’.[50] Ms X said she could not say with certainty to what part of Mr Codea’s body the punches were connecting.[51] She described the deceased as protecting his face with his hands and/or forearms and said the punches could have been connecting with his forearms, his shoulders, or his face.[52] She said she formed the impression that that person was attempting to punch the deceased’s ‘head, [and] his upper body’ and that ‘[i]t wasn’t shots to the ribs, it was shots to the head’.[53] The other male on the driver’s side of the Toyota was standing behind that male.[54]
[50] Ibid 170.
[51] Ibid.
[52] Ibid.
[53] Ibid.
[54] Ibid.
Ms X said the male on the front passenger side kicked, or was at least attempting to kick, the deceased from that side of the car. The evidence of Ms X included that there was more than one kick, but she could not say how many. Ms X said she was ‘pretty sure the kicks connected with [the deceased’s] head’ and that the kicks ‘could have been making contact with his shoulder … could have been making contact with his head’.[55] She also said that she could not remember if the foot made contact with the head of the deceased. When asked about the force of the kicks, Ms X said ‘I don’t know how to describe. They were kicks, they weren’t fairy taps’.[56]
Ms X leaves the car and the Commodore departs
[55] Ibid 168.
[56] Ibid.
Ms X said she left the Toyota about 10 seconds after the three men arrived at that vehicle and while those three men were still at that vehicle.[57] She said she left from the door behind Mr Codea and went to a position away from the car from which she did not have a view of the Toyota. She said that as she left the vehicle, the male who was on the driver’s side and behind the person punching at Mr Codea said, ‘We’re not here to hurt you’ and that at about the same time, she heard someone, possibly the same male, say something about looking through the vehicle for drugs.[58]
[57] Ibid 170, 174.
[58] Ibid 174.
Ms X said that she heard the other vehicle drive away while at the position she went to away from the Toyota. Ms X said it felt like that vehicle departed about 10 seconds after she had arrived at that position.[59]
Ms X returns to the Toyota
[59] Ibid 176.
The Commodore having left, Ms X returned to the Toyota. Ms X said Mr Codea was still in the driver’s seat with his seatbelt still on. She said the deceased ‘didn’t seem to know what was going on, he was fumbling… trying to get the car running’.[60] Ms X said Mr Codea was fumbling around like he wanted to drive away but he was not able to do so. She said he was not in a state where he could do anything. Ms X said she helped the deceased from the car, but he collapsed. She said she helped the deceased to the ground. She said the head of Mr Codea did not strike the ground as she was able to ‘gently let him lay onto the floor’.[61] Ms X said she then placed the deceased in the front passenger seat before driving him to the emergency department at the RAH.[62] I have already outlined some of what occurred there.
The efforts of Ms X to contact Mr Sandell and/or Ms Tassone
[60] Ibid 177.
[61] Ibid 179.
[62] Ibid 180.
Ms X said while she was waiting in the emergency department at the RAH she attempted contact Mr Sandell by sending him a Facebook message.[63] The prosecution tendered the Facebook messages sent from Ms X to Mr Sandell.[64]
[63] Ibid.
[64] Exhibit P30, tab 16.
Ms X contacted Mr Sandell through Ms Tassone by communicating with her via Snapchat.[65] Ms X could not remember if she had a phone call with Mr Sandell.[66] Ms X said she contacted Mr Sandell as she ‘want[ed] to know why it had all happened and why he had put me in the situation’.[67]
Ms X returns to Welland
[65] Ms X T180.
[66] Ibid 181.
[67] Ibid.
Ms X said that after the deceased had been taken inside the RAH, she left in the Toyota and drove back to the car park at Welland. She left the Toyota there and drove away in her own car. Before doing that, she removed items from the Toyota. She said she removed ‘drugs or what appeared to be drugs’ because she thought the deceased would survive and wanted to help him.[68]
[68] Ibid 182.
Ms X said she drove in her own vehicle to the house of a friend. While at that house, she consumed an ‘antidepressant to relax [her]’, however she was ‘not sure if it was a Valium or a Xanax’.[69] Drugs can adversely impact upon memory, but I am satisfied the memory of Ms X was not adversely impacted by any drug she consumed. The intention of Ms X on leaving the house of her friend was to drive to the Hilton Hotel to see another friend, but she received a phone call from the police. As a result of that phone call, she attended the Adelaide Police Station.
[69] Ibid 183.
Ms X — Prior inconsistent statements, lies and omissions
Before considering what aspects of the evidence of Ms X I accept, it is necessary to consider that she made inconsistent statements and misled the police. These are matters relevant to her credibility and reliability.
Lies and omissions
Ms X gave her first statement to police in the early hours of 29 August 2020, commencing at about 12.40am. In that statement she did not mention meeting Mr Codea to purchase drugs. She said she had not told the truth about that out of ‘my own fear of safety and the unknown and being put in a situation which I was not chosen to be into and I was scared for myself and my family’.[70]
[70] Ibid 205.
In the same statement, she made no mention of Mr Sandell. In evidence, she agreed she had deliberately omitted reference to him. She said she did so:[71]
AFor multiple reasons: firstly, I was protecting myself being put in a situation which is of an illegal stance, secondly, I was frightened to give up someone's name which I personally knew and is in a social setting with and, thirdly, I didn’t know the seriousness of the [incident].
QYou accept the incident was serious.
AYes.
QYou understood it was serious at the time.
AYes.
QWhy did you want to protect him, I don't quite follow.
AIt wasn't so much me protecting him as a person, I was protecting myself and all of us live in the western suburbs and it's not too hard to figure out details about someone and by putting myself in danger and putting him in danger, I just felt like it was a dangerous situation and it was a serious situation.
[71] Ibid 208.
Ms X commenced giving her second statement at 1.34am on 29 August 2020. In that statement she said Mr Codea had started getting himself into drugs, but that she did not. Ms X said the reason was:[72]
A…for protecting myself, being a recreational drug user, thinking that I was going to get in trouble follow buying personal use drugs.
[72] Ibid 217.
She also admitted she had lied about using drugs with Mr Codea.
Ms X agreed she made no mention of purchasing drugs at Welland, nor any such transaction at AHS. She again did not mention Mr Sandell being in the car.
Ms X gave her third statement to police on 30 August 2020. She agreed she said in that statement she had met with Mr Codea to purchase cannabis. She said she had lied about that:[73]
ABecause weed and ice are on two different levels of drugs. My parents know about me smoking weed, my parents don't know about me consuming ice and, still to this, I'm protecting myself and protecting what my family were going to know about me and it was a matter of me being embarrassed by the situation.
[73] Ibid 226–227.
Ms X agreed she had said in this statement that the two males on the driver’s side of the Toyota had punched Mr Codea. In her evidence, she said it was just one male who did that. She agreed that was a deliberate untruth and said she was unsure why she had taken that approach.[74]
Prior inconsistent statements
Contacting Mr Codea to catch up on 28 August 2020
[74] Ibid 259.
In her first statement on 29 August 2020, Ms X said that ‘Tonight [Mr Codea] asked me to meet up with him to catch up’.[75] In her evidence, Ms X said that she messaged Mr Codea to arrange to meet up.[76] Her explanation for this inconsistency was that she ‘didn’t think such a small detail was important’ and that she didn’t realise the seriousness of the case.[77]
The exit of Ms X from the Toyota
[75] Ibid 205.
[76] Ibid 205.
[77] Ibid 206.
In her first statement, Ms X said she exited the Toyota from the passenger side. In her evidence she said it was the other side.[78] In her second statement she said one of the males opened the door for her. In evidence she said her memory was that she opened the door before leaving the car.[79]
How many men spoke to her
[78] Ibid 210.
[79] Ibid 220–221.
In her second statement on 29 August 2020, Ms X described that when she ran away from the car she ‘could hear the men shouting “you’re fine, don’t stress, don’t worry”’.[80] In her evidence, Ms X said that at the time she got out of the car, it was only one man who spoke to her: ‘the male on the outside of the driver’s side just said that “we’re not here to hurt you”’.[81]   It was put to Ms X that an explanation for the inconsistency between her second statement and her evidence was that she didn’t care what she was saying to police at the time she gave her statement. To this proposition, Ms X responded ‘Possibly. It was 2am, I didn’t want to be in a police station, I didn’t think there was a matter of death for Victor and I, yeah, just generally wanted to get myself home’.[82] She further gave evidence that at the time she gave her statement ‘smaller details... didn’t seem to be of importance’.[83] I accept the explanation of Ms X for these differences.
Consideration of the lies, omissions and inconsistent statements of Ms X
[80] Ibid 222.
[81] Ibid.
[82] Ibid 222–223.
[83] Ibid.

I am satisfied the failures of Ms X to tell the police Mr Sandell was in the Toyota, about her drug use, and her reason for meeting Mr Codea along with the inconsistent statement about who arranged the meeting with Mr Codea are not significant matters in assessing what aspects of her evidence should be accepted. I accept her explanations for not mentioning Mr Sandell to the police and her explanations for why she did not disclose everything she knew relating to drugs. While she should have been more honest when speaking to the police, I accept she held some fear for herself. I also accept she wanted to protect herself and Mr Codea, and for that reason, was not always honest with the police on the topic of drugs. That Ms X lied out of court about the presence of Mr Sandell in the car might be of significance if there was a question about whether he was present but there is no dispute about that. The presence of Mr Sandell is clearly established by the CCTV footage. Based upon that footage, I am satisfied Mr Sandell was with Mr Codea when those two men left the city and that Mr Sandell later left the car park with the other three defendants. That Mr Codea and Mr Sandell knew one another and had a mutual interest in drugs is also supported by other evidence to which I will turn later. The inconsistent statement about who arranged the meeting with Mr Codea is a minor matter of no significance in evaluating the key aspects of the evidence of Ms X.
That Ms X made the statement to the police about two men punching Mr Codea from the driver’s side of the Toyota has some significance as to what evidence I can accept about what occurred in the car park. In her evidence, Ms X said that what she told the police about two men punching the deceased was a lie. I will treat what Ms X said to the police on that topic as having the character of a deliberate untruth, notwithstanding that when she gave this evidence, I am satisfied Ms X was feeling some frustration about the questioning. At the time, I formed the impression she might have agreed it was a lie when it was a prior inconsistent statement that was not a lie.
As for the inconsistent statements about which door she used to exit the vehicle and who opened that door; they are minor matters about which a person who experienced an unexpected event, like one witnessed by Ms X, might easily make errors when giving a statement to the police. Such matters reinforce the care that must be taken when evaluating the evidence of Ms X given the circumstances in which she made her observations. I turn to that issue.
The circumstances in which Ms X made her observations
The key aspects of the evidence of Ms X are what occurred once the Toyota arrived in the car park. More specifically, how events unfolded, who did what and her descriptions of the three persons she did not know. In my view, the matters of greatest significance in evaluating the evidence of Ms X are not any lies, omissions, or prior inconsistent statements — but the circumstances in which she made her observations.
Events took place very quickly and unexpectedly. Ms X might have been in the car after the departure of Mr Sandell for as little as about 10 seconds. She did not know the three men who came to the Toyota after the departure of Mr Sandell. She was seated in a relatively small vehicle and to the rear of Mr Codea. The three men who arrived at the car after Mr Sandell exited were outside the car. Because of her position, aspects of what was occurring and the persons involved would have been obscured by parts of the vehicle. She was making observations of three men on different sides of the same vehicle. There was activity from both sides. She may have taken her eyes from those three men to look to where Mr Sandell had gone. Within the car, on her evidence, Mr Codea was trying to protect himself from blows. While there was artificial light in the car park, it was from above. There was no evidence about whether the light within the car was on. Ms X was sufficiently concerned for her own safety to leave the Toyota and hide. Upon returning to the car, she was confronted with the sight of a seriously injured friend whom she needed to take to the nearest hospital.
In all the circumstances, particular care must be taken in evaluating her evidence about what occurred in the car park. An honest but mistaken witness can be convincing.
The evidence of Ms X that I accept
Ms X was an impressive witness. I am satisfied that when giving evidence, she did her best to recall events accurately. She did not attempt to hide that she had lied to the police. She became frustrated during cross-examination, but not often. That frustration was not an indication of an absence of credibility or reliability. I am satisfied that it was due to the difficulty of giving evidence and the nature of some of the questioning.
I accept the following aspects of the evidence of Ms X.
Ms X met Mr Codea at Welland for the purpose of purchasing drugs. Mr Codea asked her to enter the Toyota and she agreed to drive away with him. Mr Sandell was in the front passenger seat and in possession of a mobile phone. Mr Codea drove Mr Sandell and her to the city and to the car park at AHS.
I pause to observe that I am satisfied Mr Codea went to the car park at AHS because of some arrangement with Mr Sandell. I am satisfied of this because the CCTV footage shows they had been together since about 8.45pm, had driven from the city to Welland and returned to the city without making any stop on the return from Welland. While I accept the evidence of Ms X that a drug transaction occurred on arrival in the car park, I am unable to determine precisely why Mr Codea agreed to go to that car park rather than undertake the transaction in some other location.
I continue with the matters I accept from the evidence of Ms X.
Once in the car park, there was a drug transaction between Mr Codea and Mr Sandell. That is consistent with other evidence that Mr Codea was a seller of drugs and the evidence that Mr Sandell was a seller and user. Immediately after that transaction, Mr Sandell exited the Toyota. At about that time, the Commodore driven by Mr Mazomenos had taken up a position in the area behind the Toyota. Three men exited the Commodore. Immediately upon arriving at the Toyota, two men began striking Mr Codea. Mr Codea was seated in the car with his seatbelt on.
Punches were delivered from the driver’s side, kicks from the passenger side. The evidence of Ms X as to the force of the blows must be considered bearing in mind the evidence of Dr Heath. As I have said, I prefer the evidence of Dr Heath where it conflicts with the evidence of Dr Ovenden. The evidence of Dr Heath included that the fatal blow(s) might have been inflicted with limited force. Due to medical intervention and the passage of time, Dr Heath also could not attribute any other injury other than the fatal injury to a blunt force trauma. Notwithstanding the evidence of Dr Heath, I am satisfied the punches and kicks were forceful. I accept the evidence of Ms X that the punching was ‘forceful’[84] and that the kicking was not in the nature of a ‘fairy tap’[85] and with ‘force’.[86] Given the way the attack unfolded (i.e. – that it was immediate, by more than one man and from both sides of the Toyota) and included punches and kicks, it is a matter of common sense that both men who struck Mr Codea would have done so in a forceful way.
[84] Ibid 170.
[85] Ibid 168.
[86] Ibid 276.
While Ms X was unable to say how many kicks and punches were delivered,[87] and while the evidence of Dr Heath and Dr Ovenden cannot exclude a single blow, I accept the evidence of Ms X that there was more than one of each type of blow. I am satisfied of this as Ms X consistently used the plural,[88] and described both the kicking and punching occurring.[89] Further, that there would be more than one blow of each type is consistent with what I am satisfied occurred when the men arrived at the vehicle. Mr Codea was instantly attacked from both sides over a period of what I am satisfied was at least about 10 seconds. Given that, I reject that there might have been only one kick or one punch. I have not overlooked that as with all aspects of the evidence of Ms X about what occurred in the car park, her estimates of time must be approached with care. I am satisfied that what occurred when the men arrived at the car (i.e. – instant attack from both sides and blows from more than one person) was a sustained assault over about 10 seconds as opposed to an assault involving only one or two blows.
[87] Ibid 167, 274.
[88] See, eg: Ms X T166, T167, T168, T170, T252, T260, T274.
[89] Ibid 166.
I accept that Mr Codea attempted to protect himself, including that he moved his upper body towards the middle of the Toyota. Those actions might have inhibited the ability of those striking at him to connect every time with the part of the body at which they were aiming. I am unable to conclude how many blows of each type connected at the part of the body to which the blows were aimed.
I turn to what part of the body the blows were aimed.
I accept the evidence of Ms X that the punches were directed at the head. When asked if she had formed an impression as to the part of the body the person punching was trying to connect with, I found her response compelling: ‘Yeah his head, his upper body. It wasn’t shots to the ribs, it was shots to the head’.[90] I am satisfied that she formed that impression because that is what she saw.
[90] Ibid 170.
At times in her evidence, Ms X expressed uncertainty about whether any kick connected with the head of the deceased. For example, she said she was ‘pretty sure’[91] that kicks connected with the head and that she could not remember whether the foot connected with the head.[92] I was impressed with the care with which Ms X took not to overstate her level of confidence about what she had seen. Nonetheless, I am satisfied that the head was the part of the body at which the kicking was directed. I accept her evidence that the person kicking ‘could have been making contact with his shoulder… could have been making contact with the head’.[93] The shoulder is immediately adjacent to the head. The attack was immediate and from both sides. I am satisfied the kicks were directed at the head.
[91] Ibid 168.
[92] Ibid 169.
[93] Ibid 168.
I pause to observe that I am uncertain whether, after Ms X left the car, further blows were delivered. Given the period all four defendants were in the car park and that there may have been an effort to take items from the Toyota and/or Mr Codea after the assault, the blows may have ceased around the time Ms X left the car.
Ms X was spoken to as she left the vehicle and words to the effect of ‘we’re not here to hurt you’ were said. Something was also said about searching the Toyota. Ms X hid a short distance away and returned only after the Commodore had left. She did not see who was in that vehicle at that time, but given the CCTV footage, all four defendants were in the Commodore when it left the car park. The Commodore left a short time after Ms X left the Toyota.
Upon returning to the car, Ms X found Mr Codea seated in the driver’s seat. His seatbelt was still on. The state of Mr Codea was such that he needed assistance to exit the car and to move to the passenger seat. Mr Codea did not strike his head on the ground while Ms X assisted him to the passenger seat. Ms X drove Mr Codea to the RAH and left him with staff there. While at the RAH, she at least attempted to contact Mr Sandell. She had some contact with him or Ms Tassone while at the RAH. When she left the RAH, Ms X drove to Welland and left the Toyota there. She then went to the home of a friend. After she left, she was contacted by the police and attended a police station in the city.
The fatal blow(s)
On the evidence of Ms X and without overlooking the evidence of Dr Heath and Dr Ovenden, I am satisfied that at least one punch connected with some part of the head and at least one kick connected with some part of the head. I am satisfied of this because I accept the evidence of Ms X that blows of those two types were directed at that part of the body; Mr Codea was inhibited in his ability to defend himself or to otherwise take evasive action as he was seated in the Toyota; blows were coming from both sides over a period of about 10 seconds; and there was more than one blow of each type directed at the head. Given what I am satisfied about the sustained nature of the attack, albeit over only about 10 seconds, I am satisfied at least one blow of each type made some contact with the area of the body at which I am satisfied the blows were aimed.
However, I am unable to find how many blows of each type made contact with the head. Mr Codea was taking evasive action moving his body and placing his hands and arms up to protect himself. Dr Heath said that death might have been caused by a single blow and could not say from which side. It follows that the fatal blow(s) might have consisted of a single kick, a single punch, or more than one blow of one or both types. I have set out above findings as to how many blows were delivered; their type; the part of the body at which they were aimed and how many blows of each type connected with the head of Mr Codea.
The evidence of Ms X about the appearances of the three men she did not know
I return to the evidence of Ms X. I accept the evidence of Ms X that she knew Mr Sandell before 28 August 2020. I have accepted her evidence Mr Sandell exited the Toyota before any blow was delivered. Ms X described the three men in the car park whom she did not know. Given the circumstances in which she observed those three men, particular care must also be taken with this part of her evidence.
Ms X said all three males were wearing ‘dark colour[s], black or charcoal’.[94] She thought the male at the front passenger side was wearing a ‘hoodie’.[95] When asked if there were markings on the top or pants of that male she said:[96]
No, because I didn't really see much of him since it was on the left of my vision, and there's a seat in between my vision of that person.
[94] Ibid 169.
[95] Ibid.
[96] Ibid.
Ms X said the male closest to the driver’s side was wearing a black hoodie with a logo on the chest approximately in the middle. She believed the logo was possibly a brand name — ‘not bright at all, it was a neutral brand name’. She referred to white writing which she said was ‘minimalist’ and a ‘detailed, small and elegant’ logo.[97] She said this person was a ‘young adult’, ‘less than 35, 30’. She said she did not see anything of his face.[98]
[97] Ibid 281.
[98] Ibid 172.
Ms X said the other male on the driver’s side was wearing pants and a long sleeve. She said the clothing was all dark.[99] She said that male was larger and taller than the other two males who were at the Toyota and that he could have been bald or have had a little bit of hair. She said he seemed to have a European build and to be in his late twenties.[100]
[99] Ibid.
[100] Ibid 173, 282.
Before considering which of the three defendants unknown to Ms X was in what position at the Toyota, I will refer to some other evidence.
The arrests of the defendants
That Mr Codea was severely injured came to the attention of police on the night of 28 August 2020. Mr Sandell was arrested on 29 August 2020. Mr Mazomenos, Mr Nicholls and Mr Pinnington were arrested on 17 September 2020.
Mr Pinnington’s interview with the police
On the day of the arrest of Mr Pinnington, a conversation with him was recorded by the police.[101] A transcript of that interview is an exhibit,[102] but it is only an aid to following the interview. What Mr Pinnington said is only evidence in the case with respect to him.
[101] Exhibit P38.
[102] Exhibit P39.
When told he was to be arrested for the murder of Mr Codea, Mr Pinnington said: ‘I haven’t murdered anyone man’. He later said: ‘I didn’t murder anyone’, ‘I didn’t kill anyone’ and ‘I never murdered anyone’. The issues in the trial with respect to Mr Pinnington are whether he: joined a plan to cause GBH to, or at least a plan to assault, Mr Codea; acted with the intention of causing GBH; or, foresaw that possibility while participating in a joint enterprise to assault. The statements of Mr Pinnington about not having murdered or killed anyone have not assisted me with those issues.
I am satisfied Mr Pinnington lied in his interview. It is necessary to give some context. Mr Pinnington was told by the police officer he was being arrested for an incident which occurred on Friday, 28 August 2020. I am satisfied that Mr Pinnington knew he was being asked about the incident at AHS as, having been told about certain CCTV footage of the movements of himself, ‘Thomas and Kain’, Mr Pinnington said he had been in the back of the car. Against that background, when told that three people got out of the Commodore and assaulted Mr Codea at AHS, Mr Pinnington said: ‘I haven’t assault [sic] anyone’ and ‘I didn’t assault anyone man’. For reasons to be given, I am satisfied beyond a reasonable doubt Mr Pinnington kicked Mr Codea. I am satisfied the denials of having assaulted anyone were deliberate untruths. Those lies are not evidence and are only relevant to the credibility of what Mr Pinnington said later in the same conversation about an intention to cause serious injury. During the conversation the following exchange occurred:[103]
[103] Exhibit P39.
Police Officer     Even if, yeah, even if you don’t intend to kill somebody and the person ends up dying and the attack is of such force that you, there’s no other, there’s no other likelihood that that kind of attack’s going to cause really serious damage to someone, really serious injury and someone to end up with their, their brain moved significantly within their skull‑
Mr Pinnington    Pfft.
Police Officer     There’s little argument that that kind of assault is going to cause really serious injury so even if you didn’t intend to kill somebody, if you intended to cause really serious injury‑
Mr Pinnington    We didn’t even intend to cause serious injury to him.
Police Officer     Well that would be hard to argue when your brain’s shifted that far and you die but‑
Mr Pinnington    Yeah but that wasn’t me.
Police Officer     Well, you’re acting in concert, you’re acting as a joint enterprise‑
Mr Pinnington    I’m not joint, man, it’s not a joint enterprise.
Police Officer     It was a joint enterprise. Joint enterprise to set Victor up‑
Mr Pinnington    For what?
Police Officer     For a touch up.
Mr Pinnington    For what, why does he need a touch up for, I didn’t even know the bloke. I didn’t even know the bloke that wanted to give him a touch up.
During this interview, Mr Pinnington denied being an ‘associate’ of Mr Mazomenos and denied knowing Mr Sandell and Mr Codea. I note that it is possible Mr Pinnington lied in making these assertions. That said, although Mr Pinnington was with both of those men on the night of 28 August 2020, I am not satisfied those comments were lies. The evidence does not connect Mr Pinnington to anyone other than Mr Nicholls before the night of 28 August 2020. As a result, those assertions do not reflect adversely on the credibility or reliability of anything he said to the police. The assertions have some potential relevance to what he knew before what occurred at AHS. If he had no prior association with Mr Mazomenos, Mr Sandell and Mr Codea, that might be relevant to what he was told before the incident, his willingness to act with intent to cause GBH, and what he foresaw.
At the end of the conversation, Mr Pinnington exercised his right to silence. No use can be made of the exercise of that right.
The conversation between Mr Pinnington and Mr Nicholls at the City Watch House

Putting that entirely aside, the blows might have been inflicted by Mr Pinnington and Mr Nicholls. There is no evidence Mr Sandell communicated with either of those defendants before the assault commenced.
Further, in any event, I am satisfied that the way the incident unfolded at AHS establishes that Mr Sandell must have expected any assault to be a serious one before Mr Sandell arrived in the car park with Mr Codea. On the evidence of Ms X, I am satisfied that Mr Sandell exited the Toyota knowing an attack was to occur and to permit that attack to be carried out by others. That is the obvious inference from Mr Sandell exiting the Toyota, the immediacy of what followed and that blows were delivered by more than one person.
In the cases of all defendants, I am satisfied that the best evidence of the expectations of each respective defendant before they arrived in the carpark is what occurred once Mr Codea arrived in the car park. For example, that Mr Mazomenos, Mr Nicholls and Mr Pinnington immediately drove into the car park; Mr Sandell exited the Toyota; Mr Mazomenos, Mr Nicholls and Mr Pinnington immediately approached the Toyota and Mr Codea was immediately subjected to blows from both sides with those blows being directed at his head.
Mr Sandell was communicating with Mr Mazomenos while in the Toyota with Mr Codea
I am satisfied Mr Sandell was communicating with Mr Mazomenos in some way while in the company of Mr Codea. The CCTV footage establishes that Mr Sandell and Mr Codea left the Avani together at about 9.19pm. That Mr Sandell exchanged messages with Ms Tassone between about 9.19pm and 9.33pm establishes Mr Sandell was using a mobile phone when in the company of Mr Codea. Mr Mazomenos was in possession of a mobile phone that night. He can be seen with one in the CCTV footage on his return to the Oaks. That Mr Sandell and Mr Mazomenos were communicating in some way is the obvious explanation for their respective movements. Mr Sandell and Mr Codea are together at the Avani at 8.45pm and are on West Terrace at about 9.33pm. Mr Mazomenos, Mr Pinnington and Mr Nicholls depart the Oaks and go to West Terrace at about 8.45pm, remain in West Terrace, leave McDonald’s at 9.31pm and park on the eastern side of West Terrace approximately opposite the car park at AHS at about 9.33pm.
In reaching the conclusion that Mr Mazomenos and Mr Sandell were communicating while Mr Sandell was in the Toyota, I have not overlooked the analysis of the phones seized during the investigation which show only that Mr Mazomenos sent a message to Mr Sandell using Snapchat.[206] The messages sent are not about messages on Discord, a plan to assault Mr Codea (nor anyone else), nor are they about the movements of Mr Sandell on 28 August 2020 while with Mr Codea. Nonetheless, I am satisfied Mr Sandell and Mr Mazomenos had a way to communicate on 28 August 2020 without messages being later found. There is more than one way in which that could have occurred. I accept the evidence that Snapchat is a messaging service from which messages can disappear after they are read.[207] Mr Mazomenos used Snapchat to send two messages to Mr Sandell on 29 August 2020.[208] Signal and Snapchat applications were installed on the mobile phone in the possession of Mr Sandell before he gave it to Ms Tassone on 29 August 2020.[209] An iPhone found in the apartment occupied by Mr Mazomenos on 16 September 2020 had the applications Signal and Whatsapp installed. The evidence is that Signal is a messaging application which can be set to automatically delete messages,[210] as is Whatsapp.[211] Signal is an application from which police are not always able to obtain data when analysing a phone.[212]
[206] Exhibit P30 (tab 18); Porter T625.
[207] Ms X T155; Porter T352.
[208] Exhibit P30 (tab 18); Porter T625.
[209] Tassone, T567; Porter T354; Exhibit P30 (tab 2).
[210] Porter T353.
[211] Porter T358.
[212] Porter, T628–629.
Events after the return of Mr Sandell to the Avani
The CCTV footage established Mr Sandell returned to the Avani at about 9.42pm.
Ms Tassone said that after Mr Sandell returned to the apartment, he said he had been at AHS with ‘Kain’. That is only evidence in the case with respect to Mr Sandell. Nonetheless, that Mr Sandell and Mr Mazomenos had been in that location is established by evidence admissible in the cases of all defendants. Ms Tassone said that when she saw Mr Sandell, he was ‘like he had a big head… just kind of like he was top shit’.[213] I accept that evidence. It is consistent with the messages sent by Mr Sandell to Ms Tassone before Mr Sandell attended the car park. Before the incident, I am satisfied Mr Sandell had no misgivings about what he expected would occur. Ms Tassone’s evidence about the appearance of Mr Sandell after the incident is consistent with Mr Sandell feeling some satisfaction about what had happened to Mr Codea. Nonetheless, the appearance of Mr Sandell described by Ms Tassone has not assisted me. If it is evidence consistent with Mr Sandell feeling some satisfaction about what had happened to Mr Codea, I am not satisfied it sheds light on the key issues in the trial.
Messages after leaving AHS
[213] Tassone, T440.
These messages are only admissible with respect to Mr Sandell.
After leaving the car park at AHS, at about 9.47pm, Mr Sandell sent the following messages to Mr Taskos; ‘All done I’m sorry bro You had to cop that’ and ‘I’m sorry You got the blame Just sorted it oit [sic]’. At 11.58pm, Mr Sandell sent a message to Mr Taskos: ‘Victor is in hospital so your [sic] fine but don’t go posting anything’. In the case with respect to Mr Sandell, these messages are part of the evidence which establishes that the motive for the attack on Mr Codea and Mr Taskos was the same, that Mr Sandell had knowledge of what had happened to Mr Taskos and encouraged it in some way.
At 10.21pm, Mr Sandell sent a message to Jordan Tran: ‘he’s in hospital’.[214] That Mr Sandell believed Mr Codea was in hospital is consistent with the evidence of Ms X. She told me that as early as while she was at the RAH, she made efforts to contact Mr Sandell and that she had contact with either Mr Sandell or Ms Tassone. The evidence of Ms X is consistent with attempts by her to make contact by at least Facebook Messenger between 9.54pm and 9.55pm.[215]
Contact between Mr Mazomenos and Mr Sandell on 29 August 2020
[214] Exhibit P30 (tab 12).
[215] Exhibit P30 (tab 15).
At 12.37pm on 29 August 2020, police attended the Avani on the corner of Franklin and Elizabeth Street. Detective Brevet Sergeant Nguyen spoke to a male who was in a Commodore in Elizabeth Street. In his evidence Detective Nguyen told me the registration number was ‘S517BXF’ and that the male had a tattoo under his eye. At the time of his arrest, Mr Mazomenos had such a tattoo.[216] It is an agreed fact that Mr Mazomenos had purchased a bronze Commodore registered ‘S157BXF’ on 28 August 2020. I am satisfied that Mr Mazomenos was the man seen by Detective Nguyen and that Detective Nguyen mistook the registration number. This evidence has not assisted me in evaluating the issues in the trial.
[216] Exhibit P15.
The motive for the two incidents involving Mr Taskos and Mr Codea
I am satisfied the motive for the attack on Mr Codea was what had been posted on Discord. I accept Ms Tassone’s evidence that Mr Sandell came to believe Mr Codea was responsible and the evidence of Ms Wu that he approached her about having Mr Codea come out. For reasons given, I am satisfied that Mr Mazomenos came to know of at least some of the messages on Discord. What had been posted provided a strong motive for both Mr Sandell and Mr Mazomenos to act with respect to the messages. As is obvious, among other things, Mr Sandell was being referred to by name, called an ‘informant’ and his photograph had been posted. Through a reference to his mobile number, Mr Mazomenos had been referred to as a ‘dog’.
I am satisfied there was a link between the assault of Mr Taskos and what occurred to Mr Codea. I accept the evidence of Ms Tassone that Mr Sandell believed Mr Taskos and Mr Codea were responsible for things being said on Discord. As the assault on Mr Taskos was before 28 August 2020, I am satisfied Mr Sandell first believed it was Mr Taskos and then subsequently believed it was Mr Codea. In the case of Mr Sandell, as I have said, I am satisfied that at about 9.45pm on 28 August 2020 (about 10 minutes after the attack upon Mr Codea), Mr Sandell sent the following message to Mr Taskos: ‘I’m sorry you got the blame just sorted oit [sic]’. In the case with respect to Mr Sandell, that is evidence the two assaults were linked. It is also evidence consistent with Mr Sandell feeling some responsibility for the incident at Mr Taskos’ apartment. In the case with respect to Mr Mazomenos, I have accepted the evidence of Mr Taskos that after the incident involving him and after Mr Codea had been assaulted, Mr Mazomenos told Mr Taskos ‘It’s all gone, it’s all dealt with and you don’t have to worry about anything anymore’.[217] In the case with respect to Mr Mazomenos, that is evidence the two assaults were linked.
[217] Taskos T534.
That said, I am not satisfied that the link between the two incidents sheds any relevant light on what I consider to be the key issues in the trial. Put another way, I am satisfied it adds nothing of significance to the evidence of what each defendant did on the night of 28 August 2020. The evidence of the assault on Mr Taskos can establish that Mr Sandell and Mr Mazomenos were angry with whomever they perceived were responsible for the Discord messages and motivated to take action. However, in the cases of Mr Sandell and Mr Mazomenos, that the motive for what occurred with respect to Mr Codea on 28 August 2020 was messages on Discord and Mr Sandell and Mr Mazomenos were angry with whomever they believed was responsible is, in my view, amply established by what occurred on the night of 28 August 2020. Further, for reasons to be given, what occurred on the night of 28 August 2020 establishes beyond a reasonable doubt that before entering the car park all defendants were part of a joint enterprise to attack Mr Codea.
Further, what happened to Mr Taskos adds nothing of significance to the prosecution case as the attack on Mr Codea varied in several respects. First, the assault of Mr Codea was carried out in a different way to the assault of Mr Taskos. Second, Mr Mazomenos was the only defendant who participated in both assaults. Further, by the time of the assault of Mr Codea, the messages on Discord had continued and had come to involve Mr Mazomenos being referred to as a dog.
In so far as the defendants submitted that the assault of Mr Taskos was inconsistent with any joint enterprise to cause GBH and blows being inflicted with that intention, I will deal with that later.
The First Issue — Did the defendant participate in a joint enterprise at least to assault Mr Codea
As set out earlier, the primary case of the prosecution is that each defendant entered into an agreement to intentionally cause GBH (an agreement to cause GBH) to Mr Codea and then participated in that agreement.
I must consider the whole of the evidence admissible with respect to a defendant. That said, in my view, the most important evidence is the evidence of Ms X of what she observed on 28 August 2020; the CCTV footage; the evidence about fingerprints and DNA; and the evidence of Dr Heath. That evidence is admissible in the case of all defendants. Other than some other limited evidence to which I will refer, I am satisfied that other evidence in the case admissible with respect to a defendant does not add to, nor detract from, what is established beyond a reasonable doubt by the evidence to which I have just referred.
On the evidence of Ms X, I am satisfied beyond a reasonable doubt that Mr Codea was taken by surprise and was the victim of an unlawful attack. I reject that Mr Codea might have posed any threat or that there might have been some reason for the presence of the four defendants in the car park other than the execution of an unlawful attack. On the evidence of Ms X, I am satisfied beyond a reasonable doubt that during the unlawful attack, every blow was deliberate; that attack was immediate upon Mr Mazomenos, Mr Pinnington and Mr Nicholls exiting Mr Mazomenos’ car; the attack was from both sides of the Toyota and by two men; Mr Codea was particularly vulnerable as he was seated in the Toyota; his ability to defend himself was compromised (he was wearing a seatbelt and taken by surprise); the blows were directed at his head; one man was aiming punches at the head while the other was aiming kicks at the head and at least one blow of each type connected with some part of the head. As a matter of common sense, the head is a particularly vulnerable part of the body.
In the case with respect to Mr Sandell, the evidence of Ms X and the CCTV footage establishes that he arrived in the car park with Mr Codea and immediately after the other three defendants arrived in the car park, he exited the Toyota at which point Mr Codea was immediately assaulted. That assault having taken place, Mr Sandell left with the men who had committed that assault. The movements of the three defendants other than Mr Sandell on West Terrace, and the timing of those movements viewed in the context of the movements of the Toyota, are only consistent with Mr Sandell communicating with one of the other three defendants while with Mr Codea. Based upon that evidence, I am satisfied beyond a reasonable doubt Mr Sandell joined a joint enterprise with the other three defendants to at least assault Mr Codea before arriving in the car park and that he participated by bringing Mr Codea to the car park and leaving the Toyota so that the assault could take place. The evidence which establishes Mr Sandell believed Mr Codea was responsible for the messages on Discord; told Ms Tassone that Mr Codea was to be assaulted and my satisfaction that he was angry about those messages simply confirms what is established beyond a reasonable doubt by evidence admissible in the case of all defendants.
In the separate cases of both Mr Mazomenos and Mr Nicholls, the evidence of Ms X and the CCTV footage and the evidence of fingerprints and DNA establishes that they met in the city at 8.25pm; remained together until they arrived in the car park, including remaining together on West Terrace; arrived in the car park immediately after Mr Codea and with Mr Pinnington; they exited Mr Mazomenos’ car at the same time as Mr Pinnington; they were at the driver’s side while Mr Pinnington was kicking Mr Codea; one of them was punching Mr Codea while the other stood nearby; Mr Mazomenos and Mr Nicholls left together with Mr Pinnington and Mr Sandell immediately after the assault. In the separate cases of both Mr Mazomenos and Mr Nicholls, given the evidence just mentioned, I am satisfied beyond a reasonable doubt that both joined a joint enterprise to assault Mr Codea before arriving in the car park and that both participated by then travelling into the car park together, exiting the car and, at least, standing by in support of those delivering blows while Mr Codea was attacked from both sides of the Toyota. For reasons given earlier, it is likely Mr Mazomenos was punching Mr Codea but I am not satisfied of that beyond a reasonable doubt.
In the case of Mr Mazomenos, the evidence which satisfies me he knew of the messages on Discord which referred to him and which establishes he was communicating with Mr Sandell while he was in the Toyota with Mr Codea simply confirms what is established beyond a reasonable doubt by evidence admissible in the case of all defendants.
In the case with respect to Mr Pinnington, for reasons already given, I am satisfied beyond a reasonable doubt that he kicked Mr Codea. On the evidence of Ms X, I am satisfied beyond a reasonable doubt that Mr Pinnington did that immediately after arriving in the car park with Mr Mazomenos and Mr Nicholls and while Mr Codea was being punched by one of those two men. I reject Mr Pinnington’s statements in his interview to the effect he was not part of a joint enterprise. The evidence of Ms X and the CCTV footage which shows Mr Pinnington meeting Mr Mazomenos at about 8.25pm, remaining with him and driving to the AHS car park with Mr Mazomenos and Mr Nicholls, establishes beyond a reasonable doubt that Mr Pinnington joined a joint enterprise to assault Mr Codea before arriving in the car park and participated by then travelling to the car park, exiting the car and kicking Mr Codea.
I am satisfied beyond a reasonable doubt Mr Sandell and Mr Mazomenos entered into a joint enterprise to at least assault specifically Mr Codea on the night of 28 August 2020 by no later than about 7.40pm that evening, likely at some earlier time. By 7.40pm, on the evidence, Mr Sandell first expressed his belief that ‘Kain’ would attend with others. That belief must have been the result of some communication(s) with Mr Mazomenos. Mr Nicholls and Mr Pinnington arrived in the city at about 8.02pm and met with Mr Mazomenos shortly thereafter. On the evidence of Ms X and the CCTV footage, I am satisfied beyond a reasonable doubt Mr Nicholls and Mr Pinnington had joined the joint enterprise to at least assault Mr Codea by no later than shortly after they met Mr Mazomenos at his apartment. Mr Nicholls and Mr Pinnington may not have known who Mr Codea was.
Given the above, I am satisfied beyond a reasonable doubt that the fatal blow(s) was a kick and/or a punch deliberately delivered by at least one of the four defendants and that the fatal blow(s) was unlawful.[218] That being so, and given the separate findings that each defendant, separately considered, joined a joint enterprise to at least assault Mr Codea before entering the car park and participated, I am satisfied beyond a reasonable doubt that each defendant is responsible for the deliberate and unlawful fatal blow(s).
The Second Issue — Was the agreement to cause grievous bodily harm to Mr Codea and was the blow (or blows) that was (or were) a substantial cause of death inflicted with that intention
[218] As stated above, I have used the term ‘fatal blow(s)’ to refer to the blow(s) which was (or were) a substantial cause of the death of Mr Codea.
As set out earlier, the primary case of the prosecution is that each defendant was part of an agreement to cause GBH and that the fatal blow(s) was inflicted with that intent.
Whether the agreement was to cause GBH
The prosecution submitted I should conclude beyond a reasonable doubt there was an agreement to cause GBH given: the joint enterprise included four men, two of whom struck Mr Codea; the assault was carried out by blows from both sides of the car; the blows were aimed at the head; the blows were both punches and kicks; and the motive for the assault. The prosecution also directed attention to what might be inferred about the state of mind of Mr Sandell about how serious he expected the assault to be. However, I have dealt with that above.
Each defendant identified more than one matter which they submitted stood in the way of the prosecution proving there was an agreement to cause GBH. Relevant to all defendants were: the limited period of time over which the assault might have occurred; the absence of any weapon; uncertainty about how many blows were delivered; uncertainty as to how many blows connected with the head; that on the evidence of Dr Heath any blow(s) which, was or were, a substantial cause of death might have been inflicted with limited force; that the blows were delivered at Mr Codea while he was in the Toyota and those delivering blows were outside; that Mr Pinnington was wearing sandshoes when kicking at the deceased; that the attack was conducted close to West Terrace (a busy thoroughfare) and in a location in which a defendant might expect there was CCTV. It was also submitted that, as the prosecution case was that there existed a common motive for the assaults of Mr Taskos and Mr Codea, there was significance in the fact that the assault of Mr Taskos might not have been one involving an intention to cause GBH.

I am satisfied beyond a reasonable doubt that the attack on Mr Codea was co‑ordinated, well planned and executed by the combined efforts of four men. It was an attack designed to take Mr Codea by surprise and remove the chance to protect himself in any effective way. The blows were directed at his head and involved punches and kicks. Two of the persons involved had a personal motive because of messages on Discord which had disparaged them. That motive had likely increased in intensity in the days after what happened to Mr Taskos as the messages had continued and Mr Mazomenos was also disparaged. Evaluated as a whole, the matters emphasised by the prosecution satisfy me that the joint enterprise to assault which I am satisfied beyond a reasonable doubt that each defendant joined and participated in, may have been a joint enterprise to cause GBH. Nonetheless, I am not satisfied of that beyond a reasonable doubt. My reasons follow.
I commence by saying something about the matters emphasised by the defendants.
I do not consider that Mr Pinnington was wearing sandshoes to be a matter of significance. Any significance the type of footwear might have had in undermining the prosecution case is overwhelmed by my satisfaction beyond a reasonable doubt Mr Pinnington was kicking at the head of Mr Codea while he knew another person was striking Mr Codea from the other side of the car. The head is a particularly vulnerable part of the body.
The location in which the assault occurred and that it must have been known that Ms X was present, are not matters which are, in my view, inconsistent with a joint enterprise to cause GBH. As set out earlier, there is evidence consistent with the plan being to go to a more secluded location. Putting that aside entirely, there is no doubt the defendants were prepared to participate in a serious assault adjacent to West Terrace (a busy road even at night) and in front of an eyewitness. It does not strike me as logical that the defendants would be prepared to join and participate in a joint enterprise to commit an assault in the way in which it took place in front of an eyewitness and adjacent to West Terrace, but those same persons might not be prepared to enter a joint enterprise to cause GBH.
There was a CCTV camera in the car park which was not working. That it was not working cannot have been known to any defendant. I do not consider the presence of the CCTV camera to be inconsistent with the joint enterprise being to cause GBH. Assuming a defendant knew of the CCTV camera, that knowledge was no impediment to him entering into and participating in a joint enterprise to assault. The presence of Ms X was also no deterrent. In any event, I reject that any defendant might have given any thought to CCTV cameras. There was no effort to avoid being captured by cameras before the entry into the car park at AHS. Mr Mazomenos drove to the car park in his own car. Before the assault, each defendant met in, waited in and went to, more than one location where CCTV was operating. After the assault, each defendant went to locations where CCTV was operating.
In my view, that the assault upon Mr Taskos might not have been one accompanied by an intention to cause GBH does not undermine the prosecution case with respect to the joint enterprise to assault Mr Codea being one to cause GBH. I do not consider that incident assists in determining whether the agreement with respect to the assault on Mr Codea was an agreement to cause GBH. Mr Taskos was with two other males and in a better position to defend himself. By the time of the attack on Mr Codea, the messages on Discord had not only continued but had shifted focus. The photograph of Mr Sandell had been posted; Mr Sandell had been called an informant; Mr Mazomenos had been called a ‘dog’ (albeit not by name) and his mobile phone number posted. After the assault on Mr Taskos, Mr Sandell had made the comment about a ‘line’ having been crossed.
I do not consider the failure to remove Mr Codea from the car is inconsistent with a joint enterprise to cause GBH. The position of Mr Codea did not prevent Mr Pinnington kicking Mr Codea. The person punching Mr Codea was in the doorway of the car closest to Mr Codea and able to punch him. While in the car, Mr Codea was vulnerable. He was seated and wearing his seatbelt. His ability to defend himself was compromised. Removing him from the car might have enabled him to flee or resist the attack in a more meaningful way. As I have said, what occurred in the car park is consistent with those attacking Mr Codea wanting to take him by surprise and, in doing so, limit his opportunity to defend himself.
The absence of a weapon has some limited significance in evaluating the nature of the agreement. Both Mr Sandell and Mr Mazomenos were residing in the city and might have been able to bring a weapon of some sort. That said, the best evidence is what the defendants did not what else they might have done.
In my view, that the assault might have taken place over as little as about 10 seconds might be relevant to whether the joint enterprise was to cause GBH, but it has not assisted me. On one hand, it might support a conclusion that the agreement was to cause GBH. That Mr Codea was so seriously injured so quickly might be consistent with the prosecution case. On the other hand, the duration of the assault might not be consistent with the prosecution case. Had the joint enterprise been to cause GBH, perhaps the attack might have continued for longer.
In the case of Mr Pinnington, in my view, statements made by him to the police inconsistent with an intention to cause GBH have no significance. Mr Pinnington’s lack of honesty with the police in other parts of his interview satisfies me that no weight can be placed on what he said relevant to the scope of the joint enterprise and the intention with which he acted when kicking Mr Codea. That Mr Pinnington told police he did not know Mr Mazomenos, Mr Sandell or Mr Codea is not inconsistent with him joining a joint enterprise to cause GBH given that I am satisfied he was prepared to kick Mr Codea to the head. The best evidence of whether Mr Pinnington was part of a joint enterprise to cause GBH is what he did in the car park. As I have said, he kicked at the head of Mr Codea while he was seated in his vehicle while another member of the joint enterprise was striking him from the other side.
The assault was motivated by messages which made serious allegations about two members of the joint enterprise. The Discord messages alleged that Mr Sandell was an informant and had disclosed his name and photograph. The Discord messages also alleged Mr Mazomenos was a ‘dog’ and published his mobile phone number. Given what occurred once all four defendants were in the car park, I am satisfied that both Mr Sandell and Mr Mazomenos were very angry with Mr Codea and wanted to teach him a lesson by assaulting him. Mr Pinnington and Mr Nicholls were with Mr Mazomenos for about an hour before the attack. It is logical that they would have wanted to know why they were being asked to be involved in such a serious incident. The co‑ordinated and immediate fashion in which the attack was carried out once all four defendants were in the car park satisfies me that Mr Mazomenos, Mr Pinnington and Mr Nicholls discussed what would be done once in the presence of Mr Codea. Given Mr Pinnington and Mr Nicholls were prepared to be involved in the way they were, it is likely Mr Mazomenos would have told them the motive. That is likely despite, other than Mr Pinnington and Mr Nicholls joining in the joint enterprise to assault Mr Codea, there is no evidence of the nature of the relationship between Mr Mazomenos, Mr Pinnington and Mr Nicholls beyond the events of the night of 28 August 2020. I have not overlooked Ms X heard at least one person say something about going through the Toyota and there being a possible plan to take drugs. In my view, going through the Toyota is not inconsistent with Mr Pinnington and Mr Nicholls being told of the motive held by Mr Mazomenos and Mr Sandell relating to the Discord messages.
That said, I am not satisfied that the motive of the Discord messages being known by all four defendants sheds any more light on whether the agreement was to cause GBH than what occurred in the car park. Put another way, in my view, in all the circumstances, the motive is no more consistent with a plan to cause GBH than it is with a plan to assault Mr Codea with some lesser intention. A plan to punish and/or silence Mr Codea was something that could have been achieved without causing GBH being part of the joint enterprise.
In my view, the matters of particular significance in evaluating whether the prosecution has established beyond a reasonable doubt that the joint enterprise was to cause GBH are that: two men delivered blows as part of a co-ordinated, well planned attack from both sides which was designed to take Mr Codea by surprise and limit his opportunity to protect himself; the blows were directed at the head over a period of about 10 seconds; the blows were punches and kicks delivered with force; and Mr Codea was particularly vulnerable as he was seated in the vehicle with his seat belt on. As a matter of common sense, the head is a vulnerable part of the body. That the attack was at that part of the body is particularly important to the issue of what had been agreed.
While the above matters are consistent with the joint enterprise being to cause GBH and must be evaluated in combination, I have been left with a reasonable doubt about that. I am not satisfied that conclusion is the only rational inference on the whole of the evidence available to be considered in the respective cases of the defendants. In my view, it is reasonably possible that the joint enterprise fell short of being to cause GBH. I am satisfied that may have been the scope of the joint enterprise, but that is not enough. I am satisfied the joint enterprise entered into by all defendants, and participated in by all defendants, was to cause serious harm. That is also not enough. I cannot exclude as a reasonable possibility that the agreement was to assault Mr Codea in a serious way but without the agreement being to cause GBH.
Was the fatal blow(s) inflicted with the intent to cause GBH
That I am not satisfied beyond a reasonable doubt that the joint enterprise was to cause GBH makes it unnecessary for me to deal with this issue at this stage.
The Third Issue — Was the fatal blow(s) delivered with the intention of causing GBH by a member to the joint enterprise to assault, and if so, did the defendant foresee that as a possibility and, not withstanding this, participate in the joint enterprise
As I am satisfied beyond a reasonable doubt that each defendant entered into a joint enterprise to assault Mr Codea and participated, the prosecution may prove a defendant guilty of murder if it is established beyond a reasonable doubt that a defendant, separately considered, foresaw the possibility that a member of the joint enterprise to assault might act with the intention of causing GBH, and with that foresight, participated in the joint enterprise to assault.
Guilt on this basis requires the prosecution first to prove beyond a reasonable doubt that the fatal blow(s) was inflicted with the intention of causing GBH. For reasons already given, I am not satisfied beyond a reasonable doubt how many blows were a substantial cause of death nor whether any blow which was a substantial cause of death was a punch or a kick. It follows that before any defendant can be guilty of murder, I must be satisfied beyond a reasonable doubt that every blow which might have struck the head of Mr Codea was delivered with the intention of causing GBH.
In my view, the matters which may establish whether every such blow was inflicted with the necessary intention is the same evidence that I have discussed with respect to whether the joint enterprise was to cause GBH. I will not repeat that evidence nor every observation about that evidence. That Mr Codea was attacked to the head in the way that I am satisfied beyond a reasonable doubt occurred is particularly important. As I have said, Mr Codea was attacked by two men from both sides; the attack was immediate and while Mr Codea was vulnerable and taken by surprise; the blows were aimed at the head; the blows were forceful and were punches and kicks; the blows were delivered over about 10 seconds. The evidence which establishes those things beyond a reasonable doubt is evidence in the cases of all defendants. That evidence gives rise to an inference that the intention of both men striking Mr Codea was, at all times, to cause GBH.
However, I am not satisfied that is the only rational inference. I am unable to find beyond a reasonable doubt that every blow that might have struck the head of Mr Codea was inflicted with the intention of causing GBH. I am satisfied the intention of both men who struck Mr Codea to the head was to cause serious harm. The blows were directed at the head, were forceful and were delivered as part of a co‑ordinated attack. The blows were from both sides and at a man who was deliberately taken by surprise. The head is a vulnerable part of the body and what occurred is only consistent with the plan being to deliver blows at the head while Mr Codea would be limited in his ability to protect himself.
However, satisfaction of an intention to cause serious harm is not enough. In this case, I must be satisfied beyond a reasonable doubt that the intention of both men who struck Mr Codea was to cause GBH and that every blow which might have struck the head of Mr Codea was inflicted with that intention. I have been left with a reasonable doubt about that.
It is therefore unnecessary to consider whether, with respect to the case against each defendant, the defendant foresaw that GBH might intentionally be inflicted and, notwithstanding this, participated in the joint enterprise to assault Mr Codea.
For the above reasons, I find each defendant not guilty of murder.
Manslaughter
In this case, the prosecution relies upon manslaughter by an unlawful and dangerous act. That offence has four elements:
1.That an act or acts were a substantial cause of death (the act or acts).
2.The act or acts were deliberate.
3.The act or acts were unlawful.
4.The act or acts were dangerous. This requires that a reasonable person in the position of the defendant(s) who committed the act or acts would have realised his actions exposed Mr Codea to an appreciable risk of serious injury.[219]
[219] Wilson v The Queen (1991-1992) 174 CLR 313, 332–335.
Before considering these elements, I return to the plea of guilty of Mr Sandell. Mr Sandell pleaded guilty to manslaughter. As set out at the beginning of this judgment, a plea of guilty can have an evidential effect but only in the case of the person who entered that plea. In my view, the guilty plea adds nothing to what is already established beyond a reasonable doubt by other evidence admissible in the case with respect to Mr Sandell (i.e. – that Mr Sandell was part of a joint enterprise to assault; the assault was unlawful; Mr Sandell participated in that assault and a blow(s) delivered during that assault was (or were) a substantial cause of death). Given the foregoing, I will not use the plea of guilty in the case with respect to Mr Sandell. As stated earlier, Mr Sandell’s guilty plea has no evidential effect in the cases of the other three defendants.
In the separate cases of each defendant, I have found beyond a reasonable doubt the fatal blow(s) was deliberate and unlawful. For reasons also already given, in the separate cases of each defendant, I am satisfied beyond a reasonable doubt that the fatal blow(s) was inflicted by at least one of the defendants and that before that blow(s), each defendant entered into a joint enterprise to assault Mr Codea and participated. It follows that I am satisfied beyond a reasonable doubt each defendant, separately considered, is responsible for the blow(s) that was (or were) a substantial cause of the death of Mr Codea. It also follows the first three elements of manslaughter are established beyond a reasonable doubt in the separate cases of each defendant.
Given the above, a defendant will be guilty of manslaughter if the fourth element is proven beyond a reasonable doubt in the case of that defendant.
I turn to the fourth element. I remind myself that each defendant and the evidence admissible with respect to him must be considered separately.
In the separate cases of each defendant, I am satisfied of the fourth element beyond a reasonable doubt. My reasons are the same with respect to each defendant and are based upon evidence admissible in the cases of all defendants (i.e. – the evidence of Ms X; the CCTV footage; the DNA and fingerprints; and the evidence of Dr Heath).
For reasons already given, the blows were directed at the head and from both sides. The fatal blow(s) was to the head. The blows directed at the head were punches and kicks. The head is a vulnerable part of the body. The blows were directed at Mr Codea while he was seated in the Toyota when his ability to defend himself was compromised. The blows were forceful. In the circumstances, I am satisfied beyond a reasonable doubt every blow directed at the head of Mr Codea was dangerous. I am satisfied beyond a reasonable doubt that every punch and kick directed at the head of Mr Codea was one that a reasonable person in the position of the defendant(s) delivering those blows would have realised was exposing Mr Codea to an appreciable risk of serious injury. It follows that, in the separate cases of each defendant, I am satisfied beyond a reasonable doubt that the fatal blow(s) was dangerous.
For the above reasons, I find Mr Sandell, Mr Mazomenos, Mr Pinnington and Mr Nicholls guilty of manslaughter beyond a reasonable doubt.
Verdicts
1.The defendants are not guilty of murder.
2.The defendants are guilty of manslaughter.