Crown v Accused

1 The accused, KT, is charged on indictment that on 13 January 2024 at Doncaster he murdered Ashley Gordon. KT is also charged with two charges of aggravated burglary. All charges arise from an interconnected series of events.

2 KT will plead not guilty to murder. He intends to plead guilty to the two charges of aggravated burglary before the jury.

3 Ms Beech, on behalf of KT, objects to the admissibility of several pieces of evidence. Before turning to those arguments, it is necessary to outline the prosecution and defence cases.

4 On the night of 12 January 2024 through to the early hours of 13 January, KT, together with various friends and acquaintances, attended a party at WM's house in Sargent Street, Doncaster. The friends included AG, LJ and NC. Both AG and KT were 16 years' old. LJ and NC were of a similar age. The deceased's house was also in Sargent Street, a few houses down from where the party was being held.

5 Between approximately 4:00am and 4:30am, KT and AG accessed the deceased's premises in Sargent Street by sliding under a partially open garage door and entering the house through a connecting door. The accused and AG stole a number of items. They then returned to the party with the stolen items. AG was wearing a pair of shoes he had stolen, and KT was wearing a piece of stolen jewellery. They told LJ that they had searched the house looking for keys to the black Mercedes which was parked in the garage.

6 Between approximately 4:55am and 5:12am, KT, AG, LJ and NC returned to the deceased's premises with the intention of stealing the black Mercedes. The group again entered by sliding underneath the partially open garage door. During the course of this second aggravated burglary, the deceased woke up and saw KT and others in his house. The group then fled from the property. LJ heard the deceased say, 'Hello boys', as he was exiting the garage.

7 The deceased commenced chasing the four boys, but returned to his house at around 5:18am. He woke his flatmate, Tristen Standing ('Standing'), and told him to get up as they had just been robbed. He said he thought they were teenagers. Standing said they needed to call the police, and the deceased said, 'We'll call them in a sec, we need to get our stuff back first'. The deceased then left the property, driving his black Mercedes. Standing remained at the house and called police.

8 NC ran back into the house where the party had been. The accused, AG and LJ ran through the nearby streets in an attempt to escape. At around 5:27am, the deceased, who was driving his car, approached KT, AG and LJ in Eildon Street. The three boys ran into a driveway where a white Hyundai was parked. The driveway was effectively a three‑sided box, with a closed garage door at one end and fences either side. The deceased exited his vehicle, leaving the door open and engine running, and entered the driveway. As he did, he said 'There's no point running, the cops are on their way'. AG and LJ then jumped over an adjacent fence.

9 The prosecution case is that the deceased attempted to lawfully restrain KT in the driveway. The deceased was unarmed and barefooted. There was a struggle, during which KT used a knife to stab the deceased a number of times. One of the stab wounds penetrated the deceased's chest cavity and caused fatal injury.

10 While on the other side of the fence, LJ heard KT yell 'Help'. He also heard KT say, 'Don't bro, stop', a few times. Following this, AG jumped back over the fence, followed shortly by LJ. LJ saw the deceased on the roadway, lying in front of the Mercedes. The accused was four or five metres down the footpath. AG was in the process of kicking the deceased to the face. After the kick connected, the deceased, whose head and upper back had been slightly raised, rolled back and stopped moving. LJ saw blood on the left side of the deceased's face. All three boys then ran from the scene. The deceased died on the roadway in Eildon Street.

11 LJ is a prosecution witness in the trial. AG was charged with a number of charges arising from these events. His matters have resolved and he is not a witness in the trial.

12 Following these events, KT, AG and LJ caught up with one another on the nearby Koonung Creek Trail. According to LJ, KT was panicking and said he had just stabbed the deceased about four to five times. KT said words to the effect, 'Shit [n*s][1] just killed a guy like he's dead bro'. KT used the word [n*] to refer to himself. He showed LJ the knife with blood on it. KT and AG were trying to work out if the deceased was dead. The accused said words to the effect, 'The first two times I stabbed him I didn't really realise that it was going in and I was killing him, but after the next two, three times then I realised it's actually going in.' The three boys then ran back to WM's house.

13 Once back at the house, KT pointed to blood spots on his tracksuit pants. Both KT and AG said they needed to burn their clothes. They told LJ this was really serious and he couldn't tell anyone. Approximately half an hour later, NC came in and asked what had happened. KT replied to the effect, '[N*s] full yinged [stabbed] him bro like five times. Like he's full dead bro'. Again, KT used the word [n*] to refer to himself.

14 AG explained to WM and another friend, MN, what had happened. According to MN, AG said that he and LJ had jumped the fence while KT stayed in the driveway. AG said that the deceased stated, 'There's no point fucking running now' and then KT stabbed him three to four times. LJ was still over the fence. AG came back and kicked the deceased as hard as he could in the face. AG said that he saw the deceased's eyes roll into the back of his head. This evidence includes second‑hand hearsay but I understand it is being led by agreement.

15 KT then said the deceased came up to him and was 'tapped', which MN understood to mean scary or intimidating. KT said the deceased came close to him when he was the only one in the driveway, and that he stabbed him in the neck or shoulder region. AG then returned and knocked him out with a kick.

16 According to WM, KT said that when the deceased caught up to them in Eildon Street, he (KT) pulled out his knife, held it up and said he didn't want to do it. The deceased then tackled him and he yelled for help. AG jumped back over the fence and appeared as KT and the deceased were on the ground. The deceased got back up, tried to chase them, and tripped over. AG then 'pretty much finished him off' with a kick to the face. The accused also showed the knife to WM.

17 KT and AG remained at WM's house. They discussed jumping over the back fence and escaping. At around 6:00pm, AG wanted to watch the television news. As they put the news on, police knocked on the front door. AG and KT went out the back door and jumped over the rear fence.

18 KT and AG used a rideshare service to return to KT's home. At around 7:30pm, a Snapchat video file was created on, or sent to, KT's phone, depicting a news story containing CCTV footage from Sargent Street. At around 8:30pm, KT and AG left and entered a nearby supermarket. They then went to a nearby alcove underneath the Citylink freeway. Between 8:49pm and 8:54pm, four videos were recorded on AG's phone. They show the deliberate burning of the clothes worn at the time of the offending.

19 Shortly after midnight on 14 January, KT and AG attended an apartment complex in Windsor. At approximately 9:50pm, they called LJ and told him of their plan to flee the country. They tried to convince him to come, and told him he is likely going to jail for 15 or 20 years. They said they were going to get a car with 'ghost' number‑plates and drive to the Gold Coast, before getting a charter plane to Papua New Guinea. LJ was told he couldn't 'snitch'. In the early hours of 15 January, LJ met with KT and AG. They repeated their plan. LJ asked KT what he had done with the knife. KT smirked and answered, 'It's long gone'. KT and AG told LJ they were not going to do any jail time and would rather kill themselves than go to jail. Later that day, LJ returned home.

20 On 17 January, KT and AG were arrested by members of the Special Operations Group and Homicide Squad. Their phones were seized. Silver chains belonging to the deceased were seized from both KT and AG. KT made a 'no comment' record of interview.

21 An examination of the Eildon Street driveway found areas of bloodstaining on the front passenger quarter panel and passenger doors of the Hyundai. Further areas of blood staining were located on the driveway crossover, and on the pillar located on the corner where the driveway meets the footpath.

22 An autopsy performed on the deceased established he had suffered 11 sharp force injuries, comprising six stab wounds and five incised injuries. There was a single fatal stab wound to the right anterior (front) chest measuring 4.6 cm wide and 10.8 cm deep. There were three incised injuries to the deceased's face and scalp, including an incised injury to the left forehead that penetrated bone. There was a stab wound to the left neck, two stab wounds to the right shoulder and one stab wound to right upper arm. There was one stab wound to the central upper back, and a superficial incised wound to the right upper back. The fatal stab wound would likely have caused death within seconds or minutes.

23 The prosecution case is that KT killed the deceased with murderous intent and not in self‑defence. At the close of the prosecution evidence (and assuming no further evidence is called), the prosecution will submit that, pursuant to s 322L of the Crimes Act 1958 (Vic), KT cannot rely on self‑defence. They will further submit that even if s 322L does not prevent KT relying on self‑defence, KT has not satisfied the evidentiary onus found in s 322I of that Act. The prosecution acknowledge these submissions may alter, depending upon the course of the trial. Both parties agree that the 's 322L question' should be dealt with at the close of the evidence, and the prosecution will not open on the matters found in that section.

24 The defence admit that KT caused the deceased's death by a conscious, voluntary and deliberate act. It is disputed that KT stabbed the deceased intending to kill or cause really serious injury. The accused will also seek to rely on self‑defence. The accused will submit that s 322L does not operate to deny the defence of self‑defence, and the matters found in that section are properly questions for the jury. Ms Beech indicated that self‑defence would be raised as an issue in her opening defence response to the jury, notwithstanding the position of the prosecution.

25 The disputed evidence falls into three categories:

(a) Admissions;

(b) Incriminating conduct; and

(c) Video evidence.

26 Further, while the evidence of AG kicking the deceased is not objected to, the use that may be made of that evidence is disputed. This is the subject of a separate ruling.[2]

27 The defence object to the following two admissions only:

(a) 'Shit, [n*s] just killed a guy like he's dead bro.'

(b) '[N*s] full yinged [stabbed] him bro like five times. Like he's full dead bro.'

28 The timing and context of these admissions has been summarised above.

29 Ms Beech submitted the evidence is not relevant, given KT admits stabbing the deceased and causing his death. They are, at most, admissions to conduct, and the conduct is not disputed. They do not bear on KT's state of mind. Given the prosecution have other evidence of admissions, these admissions have no relevance or work to do.

30 Alternatively, if the admissions are relevant, they should be excluded pursuant to s 137 of the Evidence Act 2008 (Vic) ('Act'). The probative value of the evidence is low, given the issues in the trial, and the other evidence of admissions. There is a danger of unfair prejudice created by the language used, and in particular, the 'N' word. While it is true KT is referring to himself, the word is highly offensive. Moreover, it is 'gang type language', and there is a real risk a jury may use the language to impermissibly reason that KT must be associated with a gang. This will cause incurable prejudice.

31 Ms Churchill submitted that both the content and circumstances of the admissions are significant. If they were removed, it would cast what KT has said after the incident in a very different light. The individual admissions cannot be looked at in isolation. The first admission is made very shortly after the incident. Its relevance lies not only in what was said, but what wasn't said. There is no hint of self‑defence or lawful justification. The second challenged admission is made back at WM's house, as details start to emerge. It shows KT is aware of how many times he stabbed the deceased, and that he has killed the deceased. Again, there is no suggestion by KT that he needed to defend himself, or that the deceased attacked him in any way.

32 The prosecution filed a Notice of Incriminating conduct dated 22 November 2024 ('Notice') setting out five items of conduct engaged in by KT which may be summarised as follows:

(i) Fleeing police at 6:01pm on 13 January 2024;

(ii) Disposal of the knife used to stab the deceased;

(iii) Burning the clothes he was wearing when he stabbed the deceased;

(iv) On 14 January, planning to leave the country and telling LJ he couldn't 'snitch'; and

(v) On 15 January, continuing to discuss leaving the country and reminding LJ of the importance of not saying anything.

33 The parties agree that items (i) and (iii)-(v) are only admissible if they are capable of being used as evidence of incriminating conduct. The evidence is otherwise irrelevant. The parties agree that item (ii) is admissible to show what happened to the knife, and why the forensic pathologist was not provided with the alleged weapon. It is relevant and admissible even if it is not capable of being used as evidence of incriminating conduct.

34 Both parties, sensibly, recognised that while the Notice contains five different items or pieces of conduct, the arguments relied upon are essentially the same for each item. The submissions were tailored accordingly.

35 Ms Churchill relies on the evidence in either or both of two ways: first, it is an implied admission to murder. Secondly, it is inconsistent with self‑defence and thus an implied admission by KT that he knew the killing was unlawful. That is, KT knew he was not acting in self‑defence when he fatally stabbed the deceased.

36 Ms Churchill submitted that the evidence must be looked at in the context of the other evidence. Here, that relevantly includes the circumstances of the offending; the conduct of the deceased; the available inference that the deceased was intending to restrain KT until police arrived; the evidence of the forensic pathologist; and the motive or reason for the killing, namely KT did not want to be arrested given he was guilty of aggravated burglary.

37 She argued cases where the evidence is 'intractably neutral' are rare, and this is not such a case. There is an available, logical connection between the conduct, and the use the prosecution seek to make of the conduct. A jury could reasonably exclude other available explanations.

38 Ms Beech submitted the prosecution submissions ignore a major part of the evidence, including the conduct of the deceased. When the evidence is looked at in its entirety, a jury could not reasonably exclude either or both of two clear competing hypotheses: one, KT engaged in the conduct because he knew he had been involved in two aggravated burglaries and knew he had been involved in a fatal altercation with the victim of those aggravated burglaries, during which he had killed the deceased with something less than murderous intent. Two, KT engaged in the conduct because he knew he had committed two aggravated burglaries and had killed the deceased, but did so in self‑defence. Ms Beech submitted the subjective matters personal to KT are 'crucial', and a jury could not exclude the reasonable possibility that all the post‑offence conduct resulted from immaturity and naivety, rather than a belief on the part of KT that he had committed murder or not acted in self‑defence.

39 Ms Beech referred in detail to the evidence LJ gave on the s 198B examination. When the deceased said 'Hello boys' as LJ exited the garage, his voice sounded scary and not fearful. None of the group wanted a confrontation, they just wanted to escape. The deceased drove aggressively in pursuit of the group (KT, AG and LJ). He revved his engine and drove quickly. LJ ducked into the garage area because he felt the deceased was going to run them over or hit them with the car. It was pitch black and nighttime. They were all cornered and hid. Within seconds, the deceased came towards them on foot. He was large, muscular and in a rage. LJ was terrified. Before he jumped the fence, LJ saw the deceased put his head down, run at KT and grab him. The deceased was trying to wrestle. He heard KT say, 'Don't bro, stop'. After he had jumped the fence, he heard KT say, 'Help'. His impression was that in a 'one on one' battle, it would not have gone well for KT and he would have been badly bashed. Additionally, Ms Beech pointed out that KT was essentially alone when he was restrained by the deceased.

40 Ms Beech referred to the decisions of DPP v Lynn[3] and DPP v Scriven (Ruling No 4)[4]. Particular reliance was placed on Scriven. It was submitted the facts here 'sit quite squarely' with the facts of that case. Ms Beech identified the following similarities said to exist in this case: here, as in Scriven, the deceased was the aggressor, and the accused produced a weapon in response. The accused was at a significant disadvantage, not because he was outnumbered but because the deceased was physically bigger and heavier. Finally, there was considerable hostility by the deceased towards the accused's group, as evidenced by his driving.

41 Ms Beech submitted that when a jury takes into account all the evidence, including matters personal to KT such as his young age and immaturity, and the two earlier aggravated burglaries, they could not exclude the reasonable possibility that KT killed the deceased in self‑defence. Additionally or alternatively, a rational jury could not reasonably exclude that KT killed the deceased with something less than murderous intent. When all of the evidence is considered, the post‑offence conduct is properly described as 'intractably neutral'. The innocent explanations are sufficiently cogent, and sufficiently consistent with all the surrounding circumstances, that a jury acting rationally would be unable to exclude them.

42 Ms Beech objected to the admissibility of one video found on KT's phone, which was a Snapchat file saved, or created, at 7:30pm on 13 January depicting a news story about the incident and containing CCTV footage from a nearby house in Sargent Street ('the news video').

43 Further, Ms Beech submitted that if item (iii) of the Notice is admitted as evidence of incriminating conduct (item (iii) concerns the burning of the clothes), certain of the four videos ('the fire videos') found on AG's phone depicting this should nonetheless be excluded. The second or third video could be played, but the fourth video is highly prejudicial. The evidence can be led without reference to any of the videos. The burnt remains were found by police on 7 February 2024, and KT does not dispute he burned the clothes he was wearing at the time the deceased was killed.

44 The four videos depicting the burning of the clothes were located on AG's phone. The accused cannot be seen, but there are clearly two people present, and the strong inference is that the two people are KT and AG.[5]

45 Ms Beech submitted the news video is of limited if any probative value. There is no evidence KT watched the video, and the fact it is on his phone is not proof of that. It is not disputed that there are discussions about what occurred and they watched the TV news. This will come from witnesses in the trial, and the prosecution can make the same argument absent the video. That is, they can argue that KT was aware the matter was being reported in the media, the police were involved and there was CCTV footage available.

46 Ms Beech argued the danger of unfair prejudice is that the videos indicate almost a callousness on the part of KT, although to be fair, this argument was really directed to two other videos, which are no longer being led by the prosecution.[6] It is difficult to see how the news video is indicative of callousness on the part of KT. Any person in the position of KT, whether guilty or not guilty, would understandably be interested in what was being reported.

47 Turning to the four fire videos, it was argued that these videos were only partially recovered. None of them are good quality, all of them freeze at times, and the image is pixelated. Particular complaint focussed on the fourth video. In that video, AG can be seen making a masturbating gesture as the fire is burning. AG is also commentating as the fire burns, and KT, at its highest, can be heard to make a small laugh at the end of the video. Ms Beech argued that evidence of the act of burning the clothes can be led in a different way, without playing the videos, and in the alternative, if any of the videos are to be played, it should be limited to the second or third video. She argued the 'lewd gesture' in the fourth video is highly prejudicial, and there is a real risk the jury will unfairly use what AG says in the trial of her client.

48 Ms Churchill argued the news video is a relevant part of the narrative. At around 7:30pm, KT views or receives the recording. An available inference is that he viewed it, as 55 minutes later he leaves and sets fire to his clothing. The news video is a step in the reasoning process to demonstrate that at that time - being 7:30pm - KT knew there was a police investigation and CCTV footage of the group had been provided to the police. The is no danger of unfair prejudice to the accused.

49 Ms Churchill argued the fire videos are relevant and have significant probative value. They are direct evidence of the incriminating conduct. There is no footage showing KT himself, but based on all the evidence, the inference is he is there and together with AG. The demeanour displayed in the videos is relevant, given it will be suggested this is the panicked behaviour of a 16‑year‑old boy. KT can be heard to laugh in the fourth video while AG says, 'we're done for. Fuck. No we're not. Where's the evidence, cuz?'. It was argued this may be seen as callous behaviour, but that is consistent with the prosecution case, and counteracts the submission the defence will seek to make, namely this is panicked and fear driven behaviour. There is no danger of 'unfair prejudice' attaching to this evidence, and if there is, it can be cured by judicial direction.

The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

51 Section 55 sets a low threshold for the admission of evidence. The evidence may be of weak probative value but relevant. The test is one of logical relevance, and the challenged evidence must be looked at in the context of the acts alleged and matters in dispute. Common sense must be used when deciding questions of relevance.[7] Evidence may be relevant for a wide variety of reasons. It may assist in the evaluation of other evidence. It may explain an event that would otherwise seem unlikely. It may provide context or be part of a narrative. It may be relevant to the credit of a witness.[8] It may form part of a body of evidence that renders an inference more or less likely. Evidence does not lose relevance simply because there is other evidence available that addresses the same fact in issue. The prosecution are entitled to lead all relevant evidence.

52 It is not uncommon for defence to protest the relevance of a piece of evidence on the basis that a particular element is admitted, or 'not in issue'. However, this does not mean the evidence is not relevant. A formal admission, such as admitting to being the user of a particular telephone number, would preclude evidence being given to prove such a matter if the evidence was only being adduced for that purpose. The evidence would not be relevant to a fact in issue, as the fact - namely, who was using the telephone number - would not be in issue. In such a situation, unless the evidence had some other relevance, it would be excluded pursuant to s 55.

53 However, the prosecution must prove all of the elements of an offence. Pursuant to s 183(2) of the Criminal Procedure Act 2009 (Vic), an accused must file a defence response pointing out the acts, facts, matters and circumstances in the prosecution opening with which he or she disagrees. But s 183(2) does not alter the fundamental nature of the accusatorial system of criminal justice.[9] The fact that an element is 'not in issue' does not relieve the prosecution of their burden. It remains for the jury, based on the evidence, to find the element proven. The fact that defence counsel tells the jury that an element is 'not in issue' is not evidence. It simply signals to the jury that parties agree the evidence proves the element beyond reasonable doubt, so finding the element proven should not cause them any difficulty.

54 The principal facts in issue in this trial are, one, whether the prosecution can prove KT killed the deceased with murderous intent, and two, whether the prosecution can exclude the reasonable possibility that KT killed the deceased in lawful self‑defence. Thus, on the charge of murder, an issue is whether KT believed it was necessary to kill the deceased to defend himself from the infliction of death or really serious injury.[10] The second issue is predicated, of course, on self‑defence being left for the jury's consideration.

Section 137

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

56 The onus is on the accused to persuade the trial judge that the danger of unfair prejudice of the evidence outweighs its probative value.[11] 'Probative value' of evidence is defined in the Act's dictionary to mean, 'the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue'.[12]

57 The first step is to assess the probative value of the disputed evidence. The trial judge must take the possible use to which the evidence might be put at its highest. No assessment of the credibility or reliability of the evidence is required or permitted.[13]

58 The second step is to identify the danger of unfair prejudice to the accused if the evidence is admitted. The fact that a piece of evidence has low or slight probative value does not, of itself, create a danger of unfair prejudice for the purposes of s 137. Evidence 'may be unfairly prejudicial to a party if there is a real risk that the evidence will be misused by the jury in some unfair way'.[14] That is, the evidence will provoke an irrational or emotional response; or be given more weight by the jury than it deserves; or will be misused in a manner that is logically unconnected with the issues in the case.

59 The third and final step is to determine if the probative value of the evidence is outweighed by the danger of unfair prejudice. If it is, s 137 mandates the exclusion of the evidence. In undertaking this balancing exercise, it is appropriate to have regard to any warnings or directions that may be given to the jury, and whether they would remove or reduce the danger of unfair prejudice.

60 Post‑offence conduct is dealt with in Part 4, Division 1 of the Jury Directions Act 2015 (Vic) ('JDA'). Both 'conduct' and 'incriminating conduct' are defined in s 18 of that Act.

The prosecution must not rely on evidence of conduct as evidence of incriminating conduct unless -

(a) the prosecution has given notice in accordance with section 19; and

(b) the trial judge determines that, on the basis of the evidence as a whole, the evidence of conduct is reasonably capable of being viewed by the jury as evidence of incriminating conduct.

62 Here, the objection concerns the admissibility of the evidence, and not the use that may be made of the evidence. Other than the disposal of the knife, parties agree that the evidence is not relevant other than as evidence of incriminating conduct. It follows that unless items (i), (iii), (iv) and (v) may be used as evidence of incriminating conduct, they are not admissible.

63 The principles to be applied were stated by the Court of Appeal in Lynn. The Court stated:

Under s 20(1)(b), the judge has a gate‑keeper role. The central issue is the capacity of the evidence to found a process of reasoning. The judicial determination that the evidence has the relevant capacity is a necessary pre‑condition to the later determination by the jury whether or not to adopt that reasoning, subject to the mandatory direction in s 21(1)(a). Section 20(1)(b) is a broad filter as to whether the evidence is fit for the jury's consideration as an implied admission of guilt. Section 21(1)(a) constrains the jury in how that consideration is performed.[15]

64 After discussing a number of authorities, the Court held:

Hence s 20(1)(b) means that the trial judge must make a determination, based on the whole of the evidence, that the conduct evidence was such that the jury could rationally conclude that the only reasonable explanation for it was that the accused held the belief that he or she committed the offence charged. That the jury might not so conclude, because the conduct evidence might be reasonably explicable of a belief that the accused had committed a different offence (or for any other reason) is, generally, a matter for them.[16]

65 The task of the trial judge is to determine if the evidence is 'reasonably capable of being viewed by the jury as evidence of incriminating conduct'. Picking up the words of s 21(1)(a), the first question for the trial judge is whether it is reasonably open for the jury to find the conduct occurred. This issue is less commonly litigated at this stage, given juries are the ultimate finders of fact. Next, the question for the trial judge to determine is not whether the only reasonable explanation for the conduct is that the accused believed he or she had committed the offence charged. Rather, the question is whether another explanation is one the jury could accept or reject as reasonably possible.[17] The trial judge is required to assess the plausibility of any innocent explanation for the alleged conduct.[18]

66 It must be always borne in mind that the drawing of inferences is quintessentially a matter for the jury. They bring to bear their collective wisdom, experience, common sense and understanding of likely or possible human behaviour.[19]

67 The disputed admissions are 'admissions' within the meaning of the Act[20] and therefore an exception to the hearsay rule.[21]

68 The first question is whether the evidence is relevant. The answer is, yes. In my view, the relevance of the admissions extends beyond simply admitting elements one and two of murder. The timing of the admissions; the content of the admissions; the words used; who the admissions were made to; and the demeanour of the accused at the time he made the admissions may all be relevant to a jury's assessment of whether the accused had murderous intent, and whether he acted in self‑defence. As juries are routinely instructed, when drawing an inference as to intent, they should look at all of the accused's proven actions, before, during and after the alleged offending, as all these matters may assist them to determine whether to draw the guilty inference contended for by the prosecution.

69 Further, the admissions are arguably inconsistent with the assertion that KT killed the deceased in self‑defence, or are at least silent on that question. The accused says nothing about being under attack or believing himself to be in danger. This is relevant to the question of what occurred in the driveway this night, and what was in the mind of KT when he stabbed the deceased. If, for example, KT had immediately said he did not mean to kill him, or he thought he himself was going to be killed, the importance of such evidence to the defence would be obvious. The absence of such statements has relevance for the prosecution.

70 Turning to the s 137 argument. I consider that the evidence has reasonably high probative value, largely for the reasons set out above. These utterances are among the first accounts given by KT of what occurred on this night. They will enable the jury to properly assess all the post‑offence statements made by KT in this case. They are probative of both the principal facts in issue in the trial.

71 I accept the word [n*] is controversial and racist. It carries great historical and emotional weight. However, KT is using the word to refer to himself. He is not insulting or demeaning another person. The reality of criminal trials is that juries are exposed to a wide range of offensive language and confronting evidence. They are directed to make their decision based on the evidence and on no other basis. The potential for prejudice in this trial is significant, and a jury will have to be strongly directed that they must not act on emotions or prejudice. This is particularly so given KT will plead guilty to two aggravated burglaries, or what are commonly called home invasions, in the presence of the jury.

72 Turning to the argument that the use of the word [n*] implies 'gang type language'. First, it is doubtful whether jurors would reason that way, however for the purposes of this ruling, I accept that some or all of them may. The prosecution will not submit to the jury that KT was in any type of gang, and this is not a trial involving what could be described as 'gang violence'. Based on descriptions found in the various statements, LJ is Caucasian. AG is of Greek heritage. WM, MN and numerous others are 'white Caucasian'. NC is described as 'Sudanese', and others are described as 'Sudanese' or of 'African descent'. The accused is described as 'light skinned but mixed race African and white'. In my view, there is no real risk of unfair prejudice arising from the use of the word [n*] by KT to describe himself, in the circumstances of this trial. If necessary, a direction can be given; whether such a direction should be given is best determined once all the evidence has been concluded.

73 Balancing the probative value of the evidence against the danger of unfair prejudice, and having regard to any directions that may be given to the jury to guard against any risk of unfair prejudice, I have concluded that the probative value of the evidence is not outweighed by the danger of unfair prejudice to KT.

75 There is clear evidence which would allow a jury to conclude that the conduct in question occurred. Much, if not all, of the conduct is not in dispute.

76 The real question is whether the alternative explanations for the conduct are ones which the jury could accept or reject as reasonably possible. If, on the totality of the evidence, a jury could not exclude as a reasonable possibility another explanation consistent with innocence, then the evidence would not pass through the gateway. However, the fact that a jury might not draw the guilty inference, because the conduct evidence gives rise to other reasonably possible explanations, is generally a matter for the jury.

77 In Scriven, the accused was charged with murder. It was not disputed that the accused had stabbed the deceased, and thereby caused his death by a conscious, voluntary and deliberate act. The deceased had attended the accused's home and a fight occurred in the front yard. The fight was initiated by the deceased. At the time the accused stabbed the deceased, the deceased had him pinned to the ground and was punching him repeatedly to the head. The accused was at a 'significant disadvantage' and could not move away. Friends of the deceased, who had assaulted the accused a few hours earlier, were nearby. The accused was aware of their presence and 'outnumbered'. The issues in the trial were whether the accused killed the deceased with murderous intent, and whether he acted in self‑defence. The alleged incriminating conduct engaged in by the accused occurred immediately after the incident and consisted of: telling people he had been stabbed (said to be a lie); laughing after the altercation; changing his clothes after the altercation; and washing and concealing the knife. The focus of the argument became whether the conduct in question was an implied admission by the accused that he was not acting in self‑defence when he killed the deceased. The accused had suffered a serious gash to his right arm, and his Honour held it was not reasonably open to conclude he had lied in the way alleged. His Honour found that 'the evidence led by the prosecution establishes that [the accused] was defending himself when he struck the fatal blows'.[22] The evidence also demonstrated, 'overwhelmingly', that the accused had 'good reason to fear for his own safety'.[23] His Honour considered that laughing was 'wholly consistent with a belief on [the accused's] part that he acted in self‑defence'.[24]

78 The facts of Scriven are not relevantly analogous. In particular, the alleged incriminating conduct was far more minor in nature, and his Honour considered that a 'threshold difficulty' for the prosecution was that their own evidence established, overwhelmingly, that the accused was defending himself when he struck the fatal blow. That cannot be said here. If self‑defence is left to the jury in this trial, a rational jury could be satisfied beyond reasonable doubt that the accused was not acting in self‑defence when he fatally stabbed the deceased. To the extent that the defence submitted otherwise, such a submission must be rejected. It would be rare to find a case where self‑defence was so overwhelming.[25] Here, not only is the evidence of self‑defence far from overwhelming, the question of whether the defence have satisfied their evidentiary burden is contested and yet to be determined.

79 It is necessary to assess the possible innocent explanations for the conduct. Those explanations include:

• KT was engaged in the conduct because he knew he had committed two home invasions and had been involved in a fatal altercation with the victim of those home invasions, but had killed him with less than murderous intent; and/or
• KT engaged in the conduct because he knew he had committed two home invasions and killed the victim, but had done so in self‑defence.

Common to both explanations are that KT was an immature, naïve, 16‑year‑old child who found himself in a shocking, unplanned situation that was not of his making. It is reasonably possible that KT was panicking and seeking to avoid apprehension generally, but not for either of the reasons contended for by the prosecution.

80 An assessment of these explanations must be done on the basis of the evidence as a whole.[26] Here, there is other evidence that bears on the question of intent and self‑defence. That includes:

(a) The admissions made by KT to various persons, including admissions that do not suggest self‑defence.

(b) The evidence that KT was running from the deceased because he had committed the aggravated burglaries, and the available inference that KT knew the deceased was trying to apprehend him and hand him over to police.

(c) The evidence that immediately prior to the offending, the deceased told KT, AG and LJ, 'There's no point running, the cops are on their way'.

(d) The alleged motive or reason for the killing, which was to avoid apprehension.

(e) The use of a weapon in circumstances where the deceased was barefoot and unarmed.

(f) The lack of any injuries to KT.

(g) The number of knife wounds inflicted, being six stab wounds and five incised injuries.

(h) The evidence of LJ that the deceased was aggressive and charged at KT, who was heard to say, 'Don't bro, stop' and 'Help'.

(i) The fact that KT was a 16‑year‑old child at the time.

81 This case can be contrasted with cases such as DPP v Ristevski,[27] where there was an absence of other evidence capable of establishing murderous intent. It can also be contrasted with the example given by the Court in Ciantar,[28] where an accused admits to killing the deceased, and the only evidence of the killing, apart from the admission, is that the accused had fled the scene and initially denied involvement in it.[29] In such cases, which are properly characterised as rare, the limited evidence may mean a jury could not exclude the reasonable possibility that the accused was guilty of manslaughter or some lesser included offence, rather than murder. In such a situation, the evidence may be properly characterised as 'intractably neutral'.

82 I accept that the conduct here is far less serious or extreme than the post‑offence conduct engaged in by the respondent in Lynn. However, the circumstances are also very different. In Lynn, the killing was committed in a very remote location by a mature, intelligent man who had access to a vehicle. The ensuing post‑offence conduct reflected those facts. Here, the killing was committed by a teenager in the driveway of a house on a public street in a built‑up area. The post‑offence conduct is, not unexpectedly, commensurately different. Nonetheless, it was not simply an immediate, panicked reaction. The prosecution do not rely on fleeing the scene as incriminating conduct. The first piece of conduct occurs more than 12 hours after the killing, and the balance of the conduct extends over a day or more. It may be argued that, during that time, KT remained panicked, sleep deprived and scared. He was an immature and naïve child, and his somewhat implausible plan to leave Australia reflects that. However, those arguments do not rob the capacity of the evidence to be used in the ways contended for by the prosecution. I note that the knife, and the blood on KT's tracksuit pants, are inextricably linked to the killing and not the earlier aggravated burglaries.

83 If the deceased was the aggressor, as suggested by the defence, then an innocent explanation for the post‑offence conduct arguably becomes less likely, rather than more likely. That is, if KT was really acting in self‑defence when he killed the deceased, it is less likely he would want to flee police, destroy evidence and escape the jurisdiction, as in such a scenario, the killing would not be his fault. In my view, these are all matters for a jury to determine. It is for a jury to decide whether the post‑offence conduct is inconsistent with self‑defence, and whether that is the only reasonable explanation for the conduct. I do not regard the evidence as 'intractably neutral'. On the evidence as a whole, a jury could logically reject the innocent explanation suggested by the defence. This is not to say they would or should do this, but they could.

84 Where there is an issue as to whether an accused caused the death of the deceased with murderous intent, or whether the accused is guilty of the less serious offence of manslaughter, post‑offence conduct is not necessarily or usually 'intractably neutral'. In assessing the innocent explanation I must not usurp the function of the jury. Here, a jury could reject, as not reasonably possible, the explanation that KT engaged in the conduct because he knew he had committed home invasions and an unlawful but unintentional killing, and did not want to be punished for those grave acts. A key reason for this is found in the other evidence, including the admissions made by KT; the evidence of the forensic pathologist; and the available inference that KT was seeking to avoid being restrained because he knew police were on their way. It is for the jury to decide whether the post‑offence conduct was engaged in because KT knew he had murdered the deceased, or whether another explanation is reasonably possible and cannot be rationally excluded.

85 The defence complain that to use the evidence in either of the ways contended for by the prosecution would involve 'bootstraps' reasoning. Such reasoning is circular in nature; that is, the jury would first need to conclude KT was guilty of murder, before they could conclude that he engaged in the conduct because he believed he was guilty of murder. In my view, to use the evidence in either of the ways contended for by the prosecution would not involve circular reasoning. A jury could reason that fleeing police, disposing of the knife, burning clothing, and planning to leave Australia are all pieces of conduct that are inconsistent with the behaviour of a child who has unexpectedly killed a man in self‑defence. A jury would not need to first find KT guilty for this path of reasoning to be open.

86 In the same way, using the evidence to conclude KT killed the deceased with murderous intent would not be circular. It is not necessary for the jury to first conclude the accused killed the deceased with murderous intent in order for them to use the incriminating conduct as an implied admission to murder. If viewed in isolation, the incriminating conduct may seem to invite circular reasoning, but it must be considered along with all the other evidence in the trial.

87 The evidence contained in the Notice may be relied on as evidence of incriminating conduct. That is, the prosecution may rely on the evidence as an implied admission to murder, and to negate the defence of self‑defence.

88 I have watched both the news video and the fire videos.

89 Dealing first with the news video. In my view, the fact the video is found on KT's phone is relevant. An available inference is that he had an interest in the police investigation and what was being reported in the media. If the jury are not prepared to draw the inference that KT watched or created the video, it has no probative value. However, I am unable to discern any danger of unfair prejudice. The prosecution do not rely on the evidence as a piece of incriminating conduct, and if there was any real risk of a jury using it as such, a direction could be given. The video is very short. It is a small piece of evidence that forms part of the story, or narrative, of where KT was and what he did, after the deceased was killed.

91 The fire videos are poor quality. The first video is 43 seconds in duration and almost entirely frozen. A person, who I assume is said to be AG, can be seen holding a lighter to a pile of clothes, and a voice says, 'put it closer'. A second pair of feet can be seen in the video, and by inference, this is KT. The second video is nine seconds in duration. It shows the fire burning and then freezes. A voice says something that sounds like 'hee, hee, [indistinct]'. The third video is five seconds in duration. It also shows the fire burning and then freezes. A voice says, 'I need some happiness, like'. The fourth video is 16 seconds in duration. It commences away from the fire and a person can be heard laughing. Arguably, this person is KT. The camera then returns to the fire, and AG says, 'Fuck, [n*]s are done for, done for, done for. Fuck, syke, no we're not. Where's the evidence, cuz, yeah'. The accused can clearly be heard to laugh, and AG makes the masturbating gesture while holding a small blue object for two or three seconds before the video ends. The word [n*s] is very hard to make out, and if not for the transcription included in the Summary of Prosecution Opening, I doubt I would have concluded that word was said.

92 In my view, the evidence has substantial probative value. While the videos are short and incomplete, they capture the demeanour of both AG and KT while they burn their clothes. Arguably, they do not sound panicked or scared, but that will be for the jury to assess. The videos are the best and most direct evidence of this piece of post‑ offence conduct.

93 I do not consider the two to three seconds of AG making a masturbating gesture gives rise to any danger of unfair prejudice. These are teenage boys. It is difficult to see how the evidence could provoke an irrational or emotional response; be given more weight by the jury than it deserves; or be misused in a manner that is logically unconnected with the issues in this case. The gesture forms part of what is occurring, and based on the voices, both AG and KT are together while the clothes burn. At risk of repetition, this is a murder trial and KT will plead guilty to two aggravated burglaries in the presence of the jury. In all the circumstances, it is not realistic to suggest that the fourth video will give rise to incurable unfair prejudice in the trial of KT.

[1] The actual word used has been redacted.

[2] DPP v KT (Ruling 2) [2025] VSC 398.

[3] [2024] VSCA 62 ('Lynn').

[4] [2015] VSC 220, ('Scriven').

[5] It is somewhat unclear if the accused admits he is present or not. The Defence Response challenges the admissibility of the evidence and does not otherwise admit or deny the conduct, however it seems presence is admitted.

[6] Following argument and via email, the prosecution withdrew reliance on both of those videos.

[7] DPP v Paulino [2017] VSCA 38; (2017) 54 VR 109, 114 [19] (Weinberg JA).

[8] Evidence Act 2008 (Vic) s 55(2)(a) ('the Act').

[9] Alfarsi (a pseudonym) v The Queen [2021] VSCA 283, [33].

[10] Crimes Act 1958 (Vic) s 322K(3).

[11] R v Polkinghorne [1999] NSWSC 704; (1999) 108 A Crim R 189, 197-8, [51].

[12] The Act Dictionary pt 1 (definition of 'probative value').

[13] IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300, 315-16, [52]-[54].

[14] R v BD (1997) 94 A Crim R 131, 151.

[18] Cookson v The King [2024] VSCA 289, [141].

[19] DPP v Zhuang [2014] VSC 276, [24]-[25] (Kaye JA).

[20] The Act Dictionary pt 1 (definition of 'admission').

[22] Scriven [14] (emphasis in original).

[24] Ibid [47]. The Ruling does not expressly deal with the other alleged conduct, namely the changing of clothes and washing the knife.

[25] Essentially, such a submission would be tantamount to submitting the prosecution case is foredoomed to fail. If that was the true position, a permanent stay application would be expected. No such application could be sensibly made in this case.

[26] Jury Directions Act 2015 (Vic) s 20(1)(b).

[27] [2019] VSCA 287.

[28] R v Ciantar [2006] VSCA 263; (2006) 16 VR 26.