Doolan v R

Category: Principal judgment

Parties: Brendan Thomas Doolan (Applicant)
Rex (Respondent)

Representation: Counsel:
Ms M Avenell SC (Applicant)
B Hatfield SC with Ms C Brain (Respondent)
Solicitors:
Katsoolis + Co, Solicitors + Attorneys (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2021/00020665

Publication restriction: Nil

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 13 March 2023, the applicant, Brendan Doolan, was found guilty, following a trial by jury in the Supreme Court at Forbes before Lonergan J, of the murder of Bradley Dixon (the deceased). The applicant had been tried on an indictment charging him with the murder, and in the alternative the unlawful killing, of the deceased, who died at about 4:00am on 23 January 2021.

On 14 July 2023, the applicant was sentenced to imprisonment for 18 years commencing on 23 January 2021, with a non-parole period of 12 years expiring on 22 January 2033. The applicant did not seek leave to appeal against his sentence.

The Crown case was that the applicant violently attacked the deceased, who was staying at the applicant’s mother’s house in Johnson Street, Forbes, some time around 3:45am on 23 January 2021. The applicant and his friend, Corey Bouwens, who had been out drinking with friends, stopped at the applicant’s mother’s house while walking to the applicant’s house. The applicant’s mother was not at home.

The Crown case was that the applicant turned the power off to lure the deceased outside the house and then proceeded to punch, kick, knee and jump or stomp on the deceased both at the back of the house and in the driveway next to the deceased’s car, before leaving the scene. The deceased died at the scene from blunt force trauma to the head.

At around 3:45am, Mr Bouwens contacted another friend, Rickard (Boog) Radburn, who arrived at the scene shortly after and called 000 from Mr Bouwens’ phone. They both remained at the scene until paramedics and police arrived. The uncontested expert evidence was that death could have resulted from a single blow or accumulation of blows and that a fatal blow could have been inflicted seconds or minutes before death. Blood spatter analysis and DNA testing was conducted on surfaces at the scene, thongs of the applicant found on the landing of his house and the clothing worn by Mr Bouwens that night.

At trial, the Crown case was that the applicant was the sole person involved in the attack. The Crown case was reliant on acceptance by the jury of the evidence of Mr Bouwens that the applicant assaulted the deceased at the scene. Mr Radburn also gave evidence that he saw the applicant assault the deceased. At trial, Mr Bouwens and Mr Radburn admitted giving to police false accounts of the events of 23 January 2021 in their statements at the scene and in police statements on 23 January 2021 but maintained that the key aspects of their version of events were true. The defence case was that the Crown could not exclude the reasonable possibility that Mr Bouwens was involved in the attack. The applicant relied on tendency evidence to establish that Mr Bouwens had a tendency violently and persistently to assault males around the same age as the deceased while he was intoxicated.

The sole ground of appeal was that the verdict was unreasonable and not supported by the evidence. The applicant argued that the jury could not have reasonably accepted the evidence of Mr Radburn, and crucially, Mr Bouwens and that the Crown had not excluded beyond reasonable doubt the possibility that Mr Bouwens had caused at least one injury to the deceased during the assault.

The applicant required leave to appeal his conviction because the ground of appeal involved a question of fact alone and he also required an extension of time to apply for leave to appeal.

The Court held (Ward P, Rigg and Coleman JJ agreeing), granting the extension of time and leave to appeal but dismissing the appeal:

(1) As to the blood spatter analysis, the expert evidence of Detective Flippence was to the effect that he would have expected more blood on Mr Bouwens’ clothes had he been involved in the attack at the back of the house. Blood could have been dispersed onto his clothes if he had simply been close to the deceased out the back of the house or if he approached the applicant out the front of the house: [406] (Ward P), [415] (Rigg J), [419] (Coleman J).

(2) Little weight can be attached to the tendency evidence in circumstances where the incident relied on to establish the alleged tendency was an isolated incident and little was known of the motivation for that altercation. The fact that on one earlier occasion Mr Bouwens had been involved in a violent assault of a man when drunk did not make it more likely that he was involved in the assault of the deceased: [407] (Ward P), [415] (Rigg J), [419] (Coleman J).

(3) Deference must be given to the advantage of the jury in assessing the credibility and reliability of the various witnesses who gave evidence at the trial, particularly Mr Bouwens and Mr Radburn. The evidence does not give rise to a reasonable doubt as to the presence of the applicant at the Johnson Street house when the deceased was murdered, nor that it was the applicant who assaulted the deceased. It was reasonably open to the jury to conclude that the Crown had excluded any reasonable possibility that Mr Bouwens contributed a blow to the deceased. The jury’s verdict was open and was not unreasonable: [402], [407], [408]-[412] (Ward P), [414]-[415] (Rigg J), [416]-[420] (Coleman J).

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12; Hocking v Bell (1945) 71 CLR 430; [1945] HCA 16; The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35; ZL v R *[*2023] NSWCCA 279; The King v ZT [2025] HCA 9; (2025) 99 ALJR 676 applied.

JUDGMENT

1. WARD P: On 13 March 2023, the applicant, Brendan Doolan, was found guilty, following a trial by jury in the Supreme Court at Forbes before Lonergan J, of the murder of Bradley Dixon (the deceased). The applicant had been tried on an indictment charging him with the murder and in the alternative the unlawful killing of the deceased, who died at about 4:00am on 23 January 2021.

2. On 14 July 2023, the applicant was sentenced to imprisonment for 18 years commencing on 23 January 2021, with a non-parole period of 12 years expiring on 22 January 2033. The applicant does not seek leave to appeal against his sentence.

3. The applicant applies for an extension of time for leave to appeal against his conviction, the sole ground of appeal being that the verdict is unreasonable and cannot be supported having regard to the evidence. The applicant requires leave to appeal his conviction because the ground involves a question of fact alone (s 5(1)(b) of the Criminal Appeal Act 1912 (NSW)).

4. For the reasons set out below, I would grant an extension of time for the application for leave to appeal against conviction and would grant leave to appeal but would dismiss the appeal.

Summary of Crown case

5. The Crown case, in summary, was that the applicant violently attacked the deceased some time around 3:45am on 23 January 2021. The applicant had been drinking with his close friend, Corey Bouwens, and others during the evening of 22 January 2021. Both the applicant and Mr Bouwens had drunk a significant amount of alcohol (and at least Mr Bouwens had consumed some cocaine during the night). At about 3:08am on Saturday 23 January 2021, when the Commercial Hotel in which they were then drinking closed, the applicant, Mr Bouwens and another friend, Daniel Swanston, went to Mr Swanston’s home in Farrand Street, Forbes for a short time where some further alcohol was consumed and then the applicant and Mr Bouwens left together.

6. Mr Bouwens had been staying for a few weeks at the applicant’s house at Farnell Street, Forbes, after injuring his ankle and foot in a farming accident at Walgett in December 2020. On the night in question, Mr Bouwens was wearing a black “moonboot” on his left foot and a thong on his right foot; the applicant was wearing thongs.

7. The applicant’s mother (Trina Doolan) lived in a house at Johnson Street, Forbes, which was on the way home to the applicant’s house from Mr Swanston’s house.

8. On 19 or 20 January 2021, the deceased (a friend of Ms Doolan’s through his sister) had come to stay with Ms Doolan at the Johnson Street house. Ms Doolan’s evidence was to the effect that the applicant believed the deceased to be a paedophile, did not want him to stay with his mother, and said he would not visit while the deceased was there.

9. On their walk to the applicant’s house, the applicant stopped at the Johnson Street house. The applicant’s mother was not at home, having left the previous afternoon to go camping. The Crown case was that the applicant turned the power off to lure the deceased outside the house (as to this, there was evidence from one witness to the effect that Mr Bouwens had said “we” turned the power off, suggesting involvement on his part – see below). The Crown case was that the applicant then proceeded to punch, kick, knee and jump or stomp on the deceased both at the back of the house and in the driveway next to the deceased’s car before leaving the scene. (Mr Bouwens’ evidence, and that of another friend, Mr Radburn, was to the effect that the applicant returned at one point and again assaulted the deceased before leaving prior to the arrival of emergency services.)

10. Mr Bouwens was present at the scene and gave evidence that he witnessed the assault. Mr Bouwens denied any involvement in the assault. Mr Bouwens attempted to call another friend, Rickard (Ricky or Boog) Radburn, for help and then spoke to Mr Radburn’s partner, Tara Jones. Ms Jones’ evidence (to which I refer in due course) was that Mr Bouwens said “I need Boog. Brendan has gone apeshit and is bashing a fellow” and that he (Mr Bouwens) could not stop him.

11. Mr Radburn drove to the Johnson Street house and called 000 for help using Mr Bouwens’ phone. Mr Bouwens and Mr Radburn remained at the scene until police and paramedics arrived. The deceased had suffered serious injuries and died in the front driveway. The deceased’s blood was found in the house and outside on the back steps and back patio. A box of repacked groceries was on top of the deceased’s car in the driveway (which I note would be consistent with the deceased having attempted to leave the Johnson Street house in response to demands said by Mr Bouwens to have been made by the applicant that the deceased leave).

12. The cause of death was blunt force trauma to the head. The forensic pathologist who conducted the autopsy on the deceased, Dr Lorraine du Toit-Prinsloo, gave evidence describing the external injuries to the deceased’s head and internal injuries to his brain. Dr du Toit-Prinsloo was not able to comment on the number of blows, nor the mechanism of the blows, nor the degree of force that caused the injuries. The applicant emphasises that her evidence was that death could have resulted from a single blow or accumulation of blows; that a fatal blow could have been inflicted seconds or minutes before death; and that timing is “quite random”.

13. The jury was directed on the issue of causation that the Crown was required to prove that it was the applicant who was responsible for each of the deceased’s injuries; and that the jury had to be satisfied beyond reasonable doubt that it was the accused alone who inflicted the injuries on the deceased (SU 52). The Crown points out that, having regard to the directions given in the trial (particularly those extracted below), the jury must have accepted the key aspects of Mr Bouwens’ evidence in order to convict the applicant.

Summary of applicant’s argument on appeal

14. The applicant accepts that this Court must proceed upon the assumption that the jury assessed Mr Bouwens’ evidence to be credible and reliable (Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (Pell) at [39]). However, the applicant contends that an independent assessment of the whole of the evidence compels the conclusion that it was not open to the jury, acting reasonably and rationally, to have been satisfied beyond reasonable doubt of the applicant’s guilt.

15. The applicant emphasises the following features of the prosecution case.

16. First, that the prosecution case depended upon the evidence of Mr Bouwens implicating the applicant in the deceased’s death. The applicant notes that, in summing-up, the trial judge gave the jury what was described as an “Essential Crown Witness” direction, namely:

The Crown seeks to prove the guilt of the accused with a case based largely on the evidence of Corey Bouwens. Accordingly, unless you are satisfied beyond reasonable doubt that Corey Bouwens is both an honest and accurate witness in the account he has given, you cannot find the accused guilty. Before you can convict the accused, you should examine the evidence of Corey Bouwens very carefully to satisfy yourselves that you can safely act upon that evidence to the high standard required in a criminal trial. [SU 34-35]

17. Second, that the prosecution case (as noted above) was that the applicant alone assaulted the deceased with no contribution from Mr Bouwens (there being no contention of a joint criminal enterprise). The applicant points out that the trial judge directed the jury on this several times in the summing-up (and repeated this in response to a jury note), in particular saying that:

...the Crown case is that the accused alone did a series of acts, mainly punching, kicking, kneeing and stomping on the deceased’s head and that those acts caused his death. And the Crown case is that those acts were voluntary...

In respect of that element, that the act or acts caused the death of the deceased...on the unchallenged evidence of Dr du Toit-Prinsloo who carried out the post-mortem, it is not possible to say which act or acts of blunt force trauma to the head of the deceased caused his death. It could have been any one of those blunt force blows or any combination of them.

That means, to find the accused guilty, you must decide beyond reasonable doubt on the third element that any and all blows delivered to Mr Dixon were delivered by the accused alone. [SU 25-26]

…

Now this direction is addressed to the question of causation of the death of Mr Dixon. You must be satisfied beyond reasonable doubt that it was an act or acts of the accused, Brendan Doolan, that caused the death of the deceased. The Crown case is that it was the accused alone who engaged in punching, kicking, kneeing and stomping to or on the head of the deceased which caused the death of the deceased. It called evidence from Corey Bouwens and Rickard Radburn, who said that it was the accused alone who assaulted the deceased.

The Crown called evidence from a pathologist, Dr du Toit-Prinsloo, who concluded that the deceased died as a result of one or an unknown number of blunt force head injuries. The precise mechanism by which the fatal blunt force injuries were inflicted could not be determined by Dr du Toit-Prinsloo. Dr du Toit-Prinsloo also said that the time between the fatal blow and death occurring is random, death could occur after seconds, or it could occur after minutes. In other words, Dr du Toit-Prinsloo could not say which blow or combination of blows caused the death of the deceased.

In order for you to find the accused guilty of murder, you need to be satisfied beyond reasonable doubt that it was the accused alone who inflicted the blunt force head injury or combination of blunt force head injuries that caused the death of the deceased. The accused says you would not be satisfied beyond reasonable doubt that he caused the death of the deceased because there is a significant question mark over what occurred that morning, and you would not accept that the acts attributed to him, in particular by Corey Bouwens and Rickard Radburn, were in fact done by him.

The Crown will have proved this element of the offence if you are satisfied beyond reasonable doubt that the act or acts of punching, kicking, kneeing, and stomping on the deceased’s head, causing fatal blunt force head injury occurred, and that this act or these acts were performed by the accused alone. The Crown will not have proved this element of the offence if you have a reasonable doubt as to whether it was the accused alone who inflicted the fatal blunt force injury or injuries that caused the death of the deceased. [SU 51-52]

18. Factoring in the causation evidence, the applicant contends that it was necessary for the prosecution to exclude the reasonable possibility that Mr Bouwens made any contribution at all to the assault upon the deceased, even by just one blow to his head.

19. The applicant relies on four matters as giving rise to the reasonable possibility that Mr Bouwens was involved to some extent in the assault on the deceased: first, inconsistencies and omissions in the account given (by Mr Radburn) during the 000 call; second, Mr Bouwens’ numerous lies; third, the blood pattern analysis evidence; and fourth, the tendency evidence in relation to Mr Bouwens. Each will be addressed in due course. The applicant also points to some evidence suggesting the involvement of another person (most likely, Mr Bouwens) in the attack.

20. The applicant submits that, even if the jury was satisfied that the applicant had some role in the assault upon the deceased, it was not open to the jury to find beyond reasonable doubt that he acted alone; that is, to exclude the reasonable possibility that Mr Bouwens contributed “even just one blow” to the deceased’s head. Thus, the applicant maintains he is entitled to an acquittal.

Evidence at trial

21. This Court has had the benefit of detailed analysis by both parties as to the evidence at trial, not all of which will here be recounted in detail (such as, for example, the evidence as to relevant locations in Forbes – see Exs A and B). We were invited to listen to the recording of the 000 call (which we did in Court) and, though it was conceded to be less useful (AT 42.39), CCTV footage from the two hotels where the applicant, Mr Bouwens and others had been drinking and from an address in Battye Street in the vicinity of the Johnson Street House – Exs C and X. Obviously, given the significance attributed to it, it will be necessary to consider in some detail the evidence of Mr Bouwens (and his varying accounts of the relevant events prior to the trial).

Timeline

22. At the outset, it is convenient to set out the timeline of events.

23. At 11:00pm on 22 January 2021, the applicant and Mr Bouwens were at the Post Office Hotel in Forbes. They remained at the Post Office Hotel with a group of people until 12:40am on 23 January 2021.

24. At 12:45am on 23 January 2021, the applicant, Mr Bouwens and others entered the Commercial Hotel in Forbes.

25. At about 3:08am on 23 January 2021, the applicant, Mr Bouwens and others left the Commercial Hotel.

26. Between around 3:30am and 4:00am, various neighbours or local residents heard shouting or a loud altercation or other activity (see below). One witness (Hayley Buchanan) said she saw a man standing in the gutter out the front of a house close to the Johnson Street house and another in the middle of the front yard and described hearing a sound like the thud of someone kicking a dog “in the guts” and a male voice saying “Get up. Fucking get up, cunt. Get up”. Another witness (Peter Nelson) saw a woman in about that location at about 3:45am.

27. Shortly before 4:00am on 23 January 2021, Mr Bouwens called Ms Jones on his mobile phone (after a number of unsuccessful attempts to contact Mr Radburn). Mr Radburn confirmed that Mr Bouwens had called him but he did not answer the phone.

28. There is some doubt as to the timing of Mr Bouwens call to Ms Jones. Exhibit F, being screenshots of Ms Jones’ FaceBook Messenger log (22/02/23; T 219), bears a time entry of 3:54am. The call lasted for three minutes. However, the 000 call (which was made by Mr Radburn using Mr Bouwens’ phone) was recorded by the operator as being at 3:55:19am (Ex D). The Agreed Facts (Ex K) placed the 000 call at 3:55:04am. There is nothing to indicate that the two calls (to Ms Jones and to the emergency 000 number) were or could have been made simultaneously. Therefore, on the basis of the Agreed Facts, the call from Mr Bouwens to Ms Jones must have concluded by about 3:55:04am, which leads to only two reasonable inferences: first, that the time entry of 3:54am on Ex F recorded the time that the three minute call ended (rather than commenced) and, second, that there was an inaccuracy on the timing on Ms Jones’ phone. Even if the correct time for the 000 call was 3:55:19am there is still an implausible overlap if the call to Ms Jones started at 3:54am.

29. Pausing here, the call to Ms Jones ending before 3:55:04am is consistent with the evidence that the call to Ms Jones ended as the lights of a car (which must have been that of Mr Radburn) approached – since, logically, Mr Radburn only left for the Johnson Street house after the call to Ms Jones had commenced but was at Johnson Street in time to make the 000 call.

30. After the call to Ms Jones, she sent text messages to Mr Bouwens saying “Ricky will legit bash brendan if he starts” and “Where are yous”. Those messages are consistent with Mr Bouwens having conveyed to her that the applicant was involved in the assault. (Ms Jones’ evidence as to the conversation was admitted for the fact of the communication not its truth. Further, the trial judge gave a general direction on limiting the use of evidence of accounts of events given by Mr Bouwens to other people, including Ms Jones; at SU 41.)

31. As already noted, the 000 call was made at 3:55:04am (as per the Agreed Facts) though recorded by the operator as being at 3:55:19am. The relevant parts of that call are extracted in due course. It was an agreed fact that the call lasted for 15 minutes and 16 seconds, until 4:10:20 on 23 January 2021. The call ended after the arrival of the police and paramedics.

32. CCTV taken from a house on Battye Street recorded at 4:00am on 23 January 2021 (i.e., while the 000 call was in progress) a person walking at the corner of Johnson and Battye Streets, from the direction of the Johnson Street house (22/02/23; T 61; Ex X from timestamp 46.43). The Battye Street address was in the vicinity of the Johnson Street house, Battye Street intersecting with Johnson Street proximate to Prince Street and then running parallel to Johnson Street (see Ex A). The CCTV footage shows a car, with headlights on, driving along Johnson Street towards the town. Shortly after the car passed the person, that person ran off, possibly along Prince Street. There may have been another person walking away from town on the other side on Johnson Street. The CCTV footage was not distinct. (This is of some relevance in relation to the accounts given by Ms Buchanan and Mr Nelson.)

33. Exhibit F records another call from Mr Bouwens’ phone to Ms Jones at 4:17am on 23 January 2021, by which time the police and paramedics were at the scene.

Mr Bouwens’ first police statement (MFI 17)

34. Mr Bouwens gave his first statement to the police at about 8:00am on 23 January 2021 (27/02/23; T 538). He conceded in his evidence at trial that it contained a number of false statements (which are indicated below). Mr Bouwens was wearing the same clothing that he had worn the night before. He gave permission for the police to seize his clothing and the thong he was wearing at that time (27/02/23; T 526; 01/03/23; T 695-696).

35. First, as to where he had been staying in Forbes, Mr Bouwens said:

I have been staying with my friend, Ricky Radburn in Forbes, New South Wales. I know where the house is but I cannot recall the address because I am not from Forbes. Ricky lives there with his girlfriend and two kids. I have just been using a spare bedroom when I stay at the house. [MFI 17, first statement at [3]; 27/02/23; T 547]

36. At the trial, Mr Bouwens’ evidence was that he said this because the police asked. Mr Bouwens said that this was not a lie; that he stayed some of the time at Mr Radburn’s house and most of the time at the applicant’s house. Mr Bouwens had no idea why he did not include in his statement that he had been staying with the applicant. He agreed that was a lie but said he was not sure why he told that lie (27/02/23; T 547). Mr Bouwens did not remember whether he discussed with Mr Radburn that he was going to include that particular detail in his statement, but said it was possible (27/02/23; T 547-548). (Mr Radburn gave a similarly false statement to the police on this.)

37. Second, Mr Bouwens said that at about 10:00pm on 22 January 2021 he left Mr Radburn’s house and went to the Post Office Hotel (MFI 17, first statement at [5]). That was incorrect. At the trial, Mr Bouwens agreed that that was a lie (27/02/23; T 548). Mr Bouwens said he did not know why he included this lie (27/02/23; T 548).

38. Third, Mr Bouwens said:

The Commercial Hotel then shut in the early hours of the morning and I contacted Ricky to pick me up from the pub. I felt moderately intoxicated at that point. I called Ricky heaps of times on Snapchat and I called Tara on Facebook Messenger. Eventually, Ricky answered the phone and Ricky came to pick me up. I was standing near the pool in Forbes which is near the Forbes Inn. Ricky picked me up at about 3:50am. I know it’s 3:50am because I called Tara and just as she arrived [sic; answered], Ricky pulled up in the car. Ricky was driving Tara’s car which is a small Kia. [MFI 17, first statement at [6]; 27/02/23; T 551; 28/02/23; T 616]

39. Mr Bouwens’ evidence at trial was that he vaguely remembered saying this; that it was a lie; and that he had no idea why he said it. Mr Bouwens did not know why in this statement he said that Mr Radburn had picked him up down near the Forbes Inn and pool; and agreed that it was untrue that he called Ms Jones from that location (27/02/23; T 551; 28/02/23 T 617).

40. Fourth, Mr Bouwens said:

As we were driving, Ricky pulled over to the left-hand side of the road after seeing two males in the driveway of a house. I do not know what street we were on, but I could point it out to police. One male was standing, and as soon as Ricky pulled the car up, he run away in a westerly direction. I couldn’t see any of the clothing that the male was wearing, or what the male looked like, it was dark and the street lighting was minimal. I did not look at the male long enough to know how tall he was, or any other features about him. [MFI 17, first statement at [7]; 27/02/23; T 559; 28/02/23; T 616]

41. At trial, Mr Bouwens’ evidence was that he did not really remember saying this (27/02/23; T 559). Mr Bouwens said that, apart from the location, the whole of the above extract from his statement was untrue (28/02/23; T 617).

42. Fifth, Mr Bouwens said:

I exited the car and walked over to the driveway, and saw a male on the ground. He was right behind a car in the driveway, which was maroon in colour. The male’s head was nearby the rear tyre on the right-hand side, and his legs were diagonal, facing adjacent to the roadway. The male on the ground was of a bigger build and he was an older male, about 40 years old or older. The male was covered in blood. The male did not say anything to me. The male was gasping for breath. I heard him choking and trying to gasp for air. I did not see the male on the ground wearing a hat.

I found a phone that was on the grass, about one metre from the male’s body. I picked the phone up. I think it had a pink or red-coloured flip case. The phone was smashed on the screen, and it wasn’t working. Ricky was calling triple-0 off my mobile phone to ask for help.

I took the mobile phone to the car and put it on the dash of the car. I couldn’t stay with the male; I was in complete shock and felt sick to my stomach. I had never seen so much blood in my life. I do not recall touching the man on the ground at all. I am not very brave when it comes to blood [MFI 17, first statement at [8]-[10]; 28/02/23; T 616].

43. At trial, Mr Bouwens’ evidence was that it was untrue that he exited the car and then saw the male (28/02/23; T 617).

Mr Bouwens’ second statement to police (MFI 17)

44. Mr Bouwens gave his second statement some time after 1:00pm on 23 January 2021 (after a conversation with Mr Radburn and/or Mr Radburn’s father – see below). While at the police station, Mr Bouwens gave his clothes from the night before to Detective Townsend (27/02/23; T 526).

45. In his second statement, Mr Bouwens referred to his first statement and said that he wished to add additional information to that statement and that he did not discuss [sic; disclose] this information to the police at the time because he was in shock and scared by what he had seen (MFI 17, second statement at [3]-[4]). That statement also contained false information.

46. Mr Bouwens said that when the Commercial Hotel closed he and a number of others walked across the road to the roundabout on the main street and “everyone went their separate ways” (27/02/23; T551) and that:

Brendan thought we were going to someone’s house, but the others had walked off. Brendan got the shits and walked off towards the street where the incident took place that I made the statement about earlier. I cannot recall the name of the street, but it is the Street that the town pool faces on. Brendan didn’t say anything to me, he just stormed off. Brendan walked ahead of me and the last time I saw him was in the park near the pool. It’s a grassed area because I remember the grass. I kept walking and called Ricky Radburn and asked him to come and get me. Whilst I was waiting on Ricky to collect me I continued walking in the direction of Ricky’s house.

I was walking for about 10 to 15 minutes at a very slow pace because I have a ‘moon boot’ on. I’m not able to walk fast because of the Tendon damage to my foot. I continued walking until I was near Trina Potter’s [Ms Doolan’s] residence. Trina Potter is Brendan’s biological mother. I know that she is away camping at the moment, she left on Friday. I was walking and got to about 20 metres away from the house next door to Trina’s. I was talking on the phone to Tara at the time asking her come and give me a lift. It was at that point that Ricky arrived while I was still on the phone with Tara. I know the time to be 3:50am because that was when I had contacted Tara. I saw Brendan standing at Trina Potter’s residence in the driveway. Brendan saw me walking behind him. He saw me and looked directly at me as I walked up to his mother’s house. Brendan looked me directly in the face for a couple of seconds before he turned and ran away. He yelled something out when he looked at me, but I don’t know what he said. I saw a male on the ground nearby where Brendan was standing. He was the male that I described earlier in my statements as being the male covered in blood. I do not know the male’s name, but I know that he was staying at Trina Potter’s residence. I recognised this to be the same male. There was no other persons around besides Brendan, myself, the man on the ground and Ricky who just arrived. I recognised Brendan to be wearing the same clothing that he had on earlier in the night at both the Post Office Hotel and Commercial Hotel. [MFI 17, second statement at [15]-[16]; 27/02/23; T 542; T 553-554; 28/02/23; T 598-599]

47. At trial, Mr Bouwens’ evidence was that he “sort of” remembered saying this (27/02/23; T 552) and agreed that he lied about what had taken place when he arrived at the Johnson Street house. Mr Bouwens said he did not know why he lied about this (28/02/23; T 599). Nor did he know: why he said the applicant got the shits and walked off towards the street where the incident took place or why he said the applicant just stormed off and walked ahead of him; if, when he made the second statement, he wanted to put the applicant as far away from him as possible; why he referred to having a conversation with Mr Radburn while walking up Johnson Street or why he surrounded the important detail of the time of his call to Ms Jones with lies (27/02/23; T 553-554).

48. Mr Bouwens further said that he did not know why he said that he did not know the male’s name; that he did know who it was; and did not know what crossed his mind before he told this lie or what he was trying to achieve by saying it. Mr Bouwens said he was not concerned that his knowledge of the male’s name would have any impact on what the police might do or ask (27/02/23; T 542-543).

49. Mr Bouwens denied he was trying to distance himself as much as possible from the deceased. Mr Bouwens said he thought it was important to tell the truth about what he knew of the deceased, and that is why he made the second statement, although he accepted that in that statement he also did not tell the truth. He said he did not know why, apart from being freaked out again (see 27/02/23; T 542-543).

50. Mr Bouwens’ evidence at trial was that he did not know, was not sure or had no idea why he did not detail the assault on the deceased in the second statement and did not know why he lied about what actually took place when he arrived at the house (27/02/23; T 563-565; 28/02/23; T 575; T 599).

51. In his second statement, Mr Bouwens also said that:

… I did not tell Ricky that it was Brendan that I saw next to the male’s body on the ground. I kept it to myself and didn’t tell anyone. [MFI 17, second statement at [18]; 27/02/23; T 556)]

52. At trial, Mr Bouwens’ evidence was that he did not remember saying that, but agreed that that was what was recorded in his statement (27/02/23; T 556).

53. Mr Bouwens referred to a conversation that afternoon with Mr Radburn after a sleep after making the first statement in which he said:

Ricky was talking about the matter that happened earlier.

I said to Ricky, “Did you see who did it?”

Ricky said “no”.

I said “It was Brendan”.

Ricky said, “If you didn’t tell the police you’d better tell them now rather than later”. [MFI 17, second statement at [22]; 27/02/23; T 556]

54. Mr Bouwens’ evidence at trial was that he did not remember the conversations he and Mr Radburn had, if any and that he was not sure if the conversation in the second statement was true. He did not remember. Mr Bouwens said he did not remember having any conversations with Mr Radburn about the identity of the applicant at some earlier point. Mr Bouwens said he knew, when he made the second statement, he had been on the phone to Ms Jones, and spoke about the applicant being there. Mr Bouwens did not know why he put the conversation above in his second statement (27/02/23; T 556-557).

Recorded interview with police on 8 April 2021

55. On 8 April 2021, Mr Bouwens participated in an electronic recorded interview with the police (ERISP). At the trial, Mr Bouwens’ evidence was that he was telling the truth in the recorded interview.

56. In the course of the ERISP, Mr Bouwens said the following as to what happened after he and the applicant left Mr Swanston’s house:

A25: ... then me and Brendan walked and then walked to his mother’s house, and we were going to get his swag to go camping the next day, and then he’s turned the power off. I went to turn it back on, but he told me, No. um, from there Brad walked out ... Um, Brendan grabbed him. I was trying to stop him. He wouldn’t stop, so then he started hittin’ him. Um, yeah, then he fell on the ground, then he kicked him. Um, yeah, by the time he fell on the ground, I was trying to push Brendan off him. Brendan punched me. Um, yeah, I think Brad was trying to get his shit out of his mum’s house, Brendan’s mum’s house. So, it finally got to the time that Brendan finally let him go to go inside. That’s when I rang Ricky, told him to come and get him to stop him ‘cause I couldn’t stop him. [Mr Bouwens said he remembered saying this (27/02/23; T 565)]

And then I went out the front and I was calling Ricky. Brendan, I dunno what happened out the back when I left so last thing I recall was Brendan and Brad walking in front of the car. They got to the driver’s door. I thought Brad was gunna get in, but Brendan still kept bashin’ him. He fell to the ground. He kneed him in the head couple of times and then, what happened then he’s fell, he fell, like, fell like that to his, on his right hand side I’m pretty sure and then Brendan continued to bash him, kick him, jump on his head. Um, then Brendan ran away. So, I tried keepin’ him away and then he ran back again and then, what happened there? I think that’s when the police turned up or somethin’. And that’s when Brendan ran, before police turned up. (MFI 17, ERISP) This part of the answer was not read to Mr Bouwens at the trial)

57. At 11:16, in the course of the ERISP, the following was said:

Q310: …OK, so you can’t remember ever speaking about anything on the way to Daniel’s place, to Trina’s place, and about the house before Brendan decided to get his swag?

A: Yeah.

Q311: What did he say?

A: He just said, Oh, we should get the swag so we can leave in the mornin’ because we were supposed to leave in the mornin’ ---

Q312: Yeah.

A: --- to go. But ---

Q313: What did you say when he said?

A: I said, Oh yeah. I said, Isn’t there someone there? He goes, Yeah. I said, Well, you be quiet then because, yeah ---

…

Q315: And then you said you’ve walked around the back and Brendan turned the power off?

A: Yeah.

Q316: Why do you think he did that?

A: I had no idea. I had shat myself. I was, like, What the hell, you turned the power off for.

Q317: Yeah.

A: He was just telling me to be quiet. So I went to turn it back on and he yelled at me with anger. [see 27/02/23; T 565]

58. Asked whether his answer to Q316 (“I had shat myself”) meant that he was scared, Mr Bouwens went on to say:

A321: Yeah, oh, well, I didn’t know what he was gonna up, get up to ‘cause I was, like, why’s he turned the power off for because there was a light on inside. I didn’t know if he was awake or not. But he turned the power off. Then I heard footsteps inside. So that’s, I think, that’s when I went and turned the power back on. And then he told me not to and pushed me. [Mr Bouwens said he vaguely remembered saying this; see 27/02/23; T 577]

59. As to why that scared him so much, Mr Bouwens said (see 28/02/23; T 577):

A324: Because I knew he didn’t like the fellow inside and he’s turned the power off and my instincts just thought of something bad straightaway.

Q325: Righto. And what did you say when he switched that ---

A: I just asked him why’s he turned it off. He just told me to be quiet.

Q326: OK. How did he say it?

A: He said, uh, Shh, be quiet.

Q327: OK. Um, what point did you turn the power back on?

A: That was before he told me to be quiet ---

Q328: OK

A: --- he told me not to.

Q329: Righto. And you say he turned it off again?

A: Yeah.

Q330: Can you describe too ---

A: Oh, no, no, ‘cause I didn’t end up turning it back on. I tried to turn it back on.

Q331: OK.

A: I flicked one switch and that wasn’t even, that didn’t do nothing. The other one, I went to touch. I touched it and then he’s like, Don’t touch it and that’s when he pushed me. [Mr Bouwens said he did not remember saying this but that it vaguely accorded with his memory of events; see 28/02/23; T 577]

60. Mr Bouwens’ evidence at the trial was that he himself touched the power box, trying to turn the lights back on. Mr Bouwens was asked about the two portions of his recorded interview relating to this (see above). Mr Bouwens said he did not remember the conversation. Mr Bouwens seemed to agree that the applicant yelled at him in anger to leave the power off. Mr Bouwens then said the applicant didn’t yell, just had an angry voice”. He said if “yelled at me in anger” was in his statement, it was correct (27/02/23; T 565; 28/02/23; T 577). (This sequence of events was not in either of the police statements.)

61. Mr Bouwens was then asked about his previous evidence at the committal proceeding on 5 April 2022 (where he said that he could not really remember what he or the applicant did after the applicant flicked the switch in the power box (27/02/23; T 566)). Mr Bouwens asserted he did remember what took place. Mr Bouwens said he just knew the applicant turned it off. Mr Bouwens said the applicant did not yell, he just had a stern voice. Mr Bouwens said he remembered not remembering in his previous evidence (27/02/23; T 566).

62. Later in Mr Bouwens’ evidence at trial, Mr Bouwens said he did not recall if he actually turned the power back on or not. Mr Bouwens was again asked about the two portions of his recorded interview in relation to this and said that he vaguely remembered saying the first portion but did not remember saying the second. Mr Bouwens said the second vaguely accorded with his memory of what happened. He maintained he touched the power box, or switches in it, but that it was only to switch the power back on. Mr Bouwens said he did not remember if at any time the power switched back on. He said the applicant did not bang on the door or yell, but in response to the light switching off, not even a minute later, the deceased came outside. Mr Bouwens said he did not remember if the light in the house was on or off when the deceased came outside nor if there was a light from the house shining on him and the applicant then (28/02/23; T 576-578).

63. Photographs in Ex R showed that the power switches were located just next to the back door. They were on a board and not in an enclosed box. (DNA was recovered on the board from at least two people, one of whom was the applicant (Ex Z, result 24). The applicant, however, points out that it was his mother’s house.) Photographs in Ex R and the diagram Ex P showed three bins, between the deceased’s car and the garage, with the side of one approximately aligning with the front of the car.

64. In his ERISP, Mr Bouwens said that when he was out the front of the Johnson Street house on the phone to Mr Radburn/Ms Jones he could not hear anything. Mr Bouwens’ evidence at trial was that this (not being able to hear anything) was about what was happening inside the house. The passage in the ERISP was:

Q414: OK. And what did you tell Tara?

A: I just told her she needs to come here and told her to send Ricky because I can’t stop Brendan.

Q415: OK. So when you say, I can’t stop Brendan, what was Brendan doing when you were talking to Tara?

A: Um, that was when they were out the back still. So I don’t know what they were doing out the back.

65. Mr Bouwens’ evidence at trial was that he did not remember saying this although he would say that that was what happened. Mr Bouwens said he was on the phone while they (the applicant and the deceased) were out the back as well as when they came out the front (27/02/23; T 555). Mr Bouwens’ evidence was that he was not on the phone to Ms Jones when he approached the deceased and the applicant, so that would have been between the two calls to her (27/02/23; T 562). He did not know how much time was between the first and second calls to Ms Jones. Mr Bouwens maintained that there was a second call to Ms Jones (27/02/23; T 562-563) (although Ex F does not support this).

66. In the ERISP, Mr Bouwens was taken to the fact that in in the second statement he said nothing about the punching, kicking, stomping and turning off the power, to which Mr Bouwens responded:

A522: And so that’s why I wanted to tell you months ago ---

Q523: OK.

A: --- because I remembered it all. So, I didn’t remember all that at all until a couple of weeks after, it all come back because I was dreamin’ about it. I still dream about it.

Q524: OK. How long after you think you thought that you this, you recollected it all?

A: Oh, when I called you.

Q525: So, all right, you called me on the 2nd of February.

A: Yeah.

Q526: OK. That is a fortnight, a bit later? Yeah. That’s, that’s, um, on the 23rd, so, sorry, that’s pretty, about a week out, a bit after a week after it’s occurred.

A: Yeah.

67. Mr Bouwens’ evidence at trial was that he “sort of” remembered saying this (28/02/23; T 621).

68. Mr Bouwens said in the ERISP that he did not remember at all when he made the second statement that the applicant had attacked the deceased and had no recollection of an assault taking place at that time; that “There was like, all blank. All I remember him was standing there and then running off” (Q/A 528-531). Asked about when he remembered the assault and how it happened that the memory came back (Q 788-789), Mr Bouwens said:

Q789: That memory came back?

A: Come in through my dreams. That I still dream about that fuckin’ nearly every night. Makes me sick.

…

Q792: Did it come back in, the entire came back?

…

A793: Nuh. I’d wake up.

69. In Mr Bouwens’ evidence at trial, he was asked whether the detail he gave to police came back to him in dreams. He said it did not come back through dreams; he was just dreaming about it. Mr Bouwens said his recollection was not really based on dreams. When asked what “not really” meant, he said it did not come back to him all through just dreams; he was just dreaming about it a lot. He said little bits came back in dreams. Mr Bouwens denied he was trying to convey to the police that his later recollection was based on things that had come back in dreams. He said this was because it did not all come back to him in dreams. He said it came back straight away and was in his head. Mr Bouwens said this included when he made his second statement and lied. Mr Bouwens maintained his remarks about dreams were truthful (28/02/23; T 621-623). In re-examination, Mr Bouwens said he gave evidence of what he could remember (28/02/23; T 647).

Mr Bouwens’ evidence at trial

70. It is not necessary here to summarise the whole of Mr Bouwens’ evidence at trial (though it has been carefully reviewed in preparation for these reasons). Relevantly, in light of the matters that the applicant here relies on, both as to Mr Bouwens’ lies and as to the plausibility of his account of events, that evidence was as follows.

Knowledge of applicant and deceased

71. Mr Bouwens gave evidence that he had known the applicant since he was very young and met him through a family friend while living on the South Coast. They were good friends and he was a groomsman at the applicant’s wedding (27/02/23; 478-482). Mr Bouwens knew the deceased for roughly the same time as he knew the applicant and said that he knew the deceased because his father had dated the deceased’s sister at some time (27/02/23; T 483). He said that he and the deceased were friends but that he only knew him as “Brad” never “Bradley” (27/02/23; T 528). Mr Bouwens had known Mr Radburn for a year or two through the applicant (27/02/23; T 483).

72. In cross-examination, Mr Bouwens’ evidence was that he knew the deceased “very well” and could recognise him and that he knew that the deceased’s sister and the applicant’s mother were friends, but said he did not know if the applicant’s mother spoke to the deceased (27/02/23; T 540).

73. Mr Bouwens said that he did not remember the deceased having a relationship with any other member of his family. When reminded, Mr Bouwens agreed that the deceased also had a relationship with Mr Bouwens’ aunt, Natalie, but only that they had dated. Mr Bouwens did not know why he had never mentioned that relationship prior to then, saying that it was when he was two years old and he did not know about the relationship until well after 23 January 2021 (though he did not remember who told him nor when). Mr Bouwens was not aware of allegations of domestic violence in that relationship (27/02/23; T 537-538). In his previous evidence at the 2022 committal hearing, Mr Bouwens said he was certain that the deceased did not have any relationship with anyone he knew. At the trial, Mr Bouwens’ evidence was that he did not remember saying this; and that his previous evidence was not a lie because he did not then remember the relationship. Mr Bouwens said he had not, prior to his previous evidence at the committal hearing, thought a lot about what he knew about the deceased nor had discussions with people about any relationship with the deceased (28/02/23; T 573-574).

74. Mr Bouwens knew that a “Bradley” was staying at Trina Doolan (the applicant’s mother)’s house for a while but not that this was the deceased. Mr Bouwens said that about a week or two before “Bradley” turned up, the applicant said something about how he did not like him because he was a “convicted paedophile” or something. Mr Bouwens said he was not too sure where they were for this conversation (27/02/23; T 528-529).

75. The evidence of the applicant’s mother was that before Christmas 2020, she, the applicant and Mr Bouwens had a conversation on her front lawn about the deceased coming to Forbes; that the applicant had heard “Brad” was a paedophile and that he did not like the idea of him being there and would not come around to visit her if he were there. She said Mr Bouwens said “Brad” had been seeing a younger girl, who lied about her age, saying that she was closer to being 17 than 15 and then it went to 12, and it turned out she was 12 years old (21/02/23; T 77).

76. In cross-examination, Mr Bouwens said he did not remember any earlier conversation with Ms Doolan and the applicant about “Brad” in which the applicant said that the deceased had been involved with a girl who was 12 years old but accepted that it was possible the conversation occurred (27/02/23; T 536). Mr Bouwens denied being aware at the time of the incident that there was a person by the name of Bradley Dixon who had been involved with a 12 year old girl at the time of the incident but could not say when he did become aware of this (27/02/23; T 536-537).

77. The evidence of Ms Doolan was that when Mr Bouwens serviced her car on 21 January 2021 she told Mr Bouwens that the deceased was staying at her house and she had already asked, or was going to ask, him to find somewhere else to stay (21/02/23; T 78). At the trial, Mr Bouwens’ evidence was that, during the course of servicing the car, Ms Doolan said “Brad” was in the room, but he did not then know anything about this person called “Brad” (27/02/23; T 529).

Events of 22/23 January 2021 before the assaults

78. Mr Bouwens said that on 22 January 2021 his foot was feeling sore, and the pain was “probably 8 out of 10” regardless of whether he was wearing the boot or not. In cross-examination, when asked about the extent to which the moonboot slowed him down, Mr Bouwens said he did not think he was able to keep up with others as they walked but could not remember if he lagged behind anyone significantly when going from the Post Office Hotel to the Commercial Hotel (27/02/23; T 543-544).

79. Taken to his previous evidence at the committal hearing that he “wouldn’t have a clue” how his foot was feeling at the time of witnessing the assault, Mr Bouwens’ evidence was that he did not remember saying that. When shown the transcript, Mr Bouwens said that previous evidence was true; that his earlier evidence was about what the pain would have been but he was not sure what it actually was (27/02/23; T 545).

80. Pausing here, the applicant submits that Mr Bouwens did not appear, in the CCTV on 22-23 January 2021, to be particularly restricted or slowed down by the moonboot, nor in pain; and the applicant notes Mr Swanston’s evidence that Mr Bouwens kept up with the group when walking. Reference is also made to Ms Schaefer’s evidence as to the group on that night (see below). The Crown, however, submits that the CCTV footage appears to show Mr Bouwens limping slightly as the group left the Post Office Hotel (Ex X at timestamp 16:30-17:18). (A slight limp is visible but Mr Bouwens appears able to keep up with the group.)

81. Mr Bouwens’ evidence was that he and the applicant had planned to go camping with two other friends that day (22 January 2021) but did not go because the applicant did not finish working until around 6:00pm (27/02/23; T 486).

82. Mr Bouwens said that he had six or seven beers at the applicant’s house after work and thought the applicant had the same (27/02/23; T 486). At the Post Office Hotel, Mr Bouwens had about 10 beers but was not sure what strength they were. Asked if he saw what the applicant was drinking he said “the same”. Mr Bouwens said that everyone was happy at the Post Office Hotel (27/02/23; T 487-488). When they went to the Commercial Hotel he continued drinking beer; and possibly had six or seven more (27/02/23; T 489). Mr Bouwens said he also had cocaine at some point through the night (though in his ERISP he had denied this – Q/A 171); he thought at the Post Office Hotel (27/02/23; T 489). In the course of his evidence, Mr Bouwens estimated that he had consumed around 22-24 beers by the time he left the Commercial Hotel. At that time, Mr Bouwens felt “pretty intoxicated” (27/02/23; T 488-489) (cf his earlier account in his first statement that he was “moderately intoxicated”; see MFI 17 first statement at [6]; 27/02/23; T 551) and his ankle was pretty sore (27/02/23; T 490).

83. Mr Bouwens said he walked with the applicant and Mr Swanston to Mr Swanston’s house. He did not remember how long the walk took. There, Mr Bouwens had a Canadian Club from the fridge but was not sure if he finished it (27/02/23; T 490). Mr Bouwens said that they were not at Mr Swanston’s house for long, perhaps only five minutes. Mr Bouwens said that the applicant also had a Canadian Club at Mr Swanston’s house. Mr Bouwens and the applicant then left to go back to the applicant’s house to go to bed (27/02/23; T 491).

84. Mr Bouwens and the applicant walked, he thought side by side, along Farrand Street and then Johnson Street, heading away from town. Mr Bouwens said he felt “pretty intoxicated” and affected by the alcohol and cocaine. Mr Bouwens did not remember any conversation with the applicant (27/02/23; T 492).

85. Mr Bouwens and the applicant stopped at the Johnson Street house. He said he was not too sure how long it took to walk there. Asked why he stopped there, Mr Bouwens said “Brendan walked out the back of his mother’s house” and that he “thought it was just to get his swag”, though the applicant had not said that (27/02/23; 492-493; 28/02/23; T 574). Mr Bouwens said that the lighting was poor; that there was a driveway on the right that went into the garage, with the house on the left and a little front porch, as well as a gate between the house and the shed; and that the deceased’s car was in the driveway (27/02/23; T 493). (This is consistent with the crime scene photographs in Ex R, pp 12 and 15.)

Assaults at the back of the house

86. Mr Bouwens gave evidence that the applicant walked down beside the car, through the gate and out the back of the house. He thought the gate was shut and the applicant opened it. Mr Bouwens said the applicant did not say why he was going out the back (27/02/23; T 494). As noted above, Mr Bouwens’ evidence was that he thought there was an intention to get the swag but did not remember the applicant nor himself saying anything about the swag. Mr Bouwens thought this because they were going camping the next day (28/02/23; T 574-575). Mr Bouwens said he was pretty sure they were leaving first thing in the morning, although they could have gone back to the house in the light in the morning and with the car. Mr Bouwens said it was a double swag; quite a large swag. Mr Bouwens said he had no reason why he did not mention the swag in the second statement (taken the day they intended to go camping). Mr Bouwens maintained he was thinking about the swag at the time. Mr Bouwens said he could not remember but was pretty sure he knew at all times about getting the swag (28/02/23; T 575-576).

87. When the applicant went around the back of the house, Mr Bouwens followed the applicant about a metre or two behind (28/02/23; T 495).

88. Mr Bouwens said that when they walked out the back, the applicant walked past the power box on the back of the house (27/02/23; T 495). Mr Bouwens initially said that the applicant “flicked the switches” on the power box on the back of the house but then said that he did not actually see the applicant flick the switches but saw him walk past the power box and then the lights went out (27/02/23; T 494-495). Mr Bouwens said that the applicant did not say anything and Mr Bouwens did not remember saying anything himself (27/02/23; T 496).

89. Mr Bouwens thought this was when the deceased opened and walked out the back door and stood on the first step, holding the door open; and that the deceased said “Oh, it’s only you Brendan” (27/02/23; T 496). Mr Bouwens could not recall if the applicant responded. Mr Bouwens did not remember saying anything to either the applicant or the deceased when the deceased came outside. Mr Bouwens said the deceased did not say anything to him nor look at him, although he was only a metre or two away (28/02/23; T 579).

90. Mr Bouwens said that the applicant was standing at the bottom of the steps and that he (Mr Bouwens) was about two metres away. Mr Bouwens said the deceased had clothes on his top and bottom halves, although he could not remember what (27/02/23; T 496). Mr Bouwens said it was not until the deceased walked out the back door that he realised that it was a person whom he knew who was staying there (27/02/23; T 530).

91. Mr Bouwens said that the applicant then started punching the deceased on his face using his right hand and a closed fist; that the applicant hit him “a fair few times…about five or more” which caused the deceased to bleed from his mouth and nose (27/02/23; T 497). Mr Bouwens said he could not really describe the force of the punches. Mr Bouwens said that, while punching the deceased, the applicant said something about “getting his stuff and leaving” (27/02/23; T 498).

92. Mr Bouwens said that he was beside the applicant while the applicant was punching the deceased; that he told him to stop and then started to push him off the deceased, with open palms at about chest height, about four or five times but it did not have much effect on the applicant (27/02/23; T 498). Mr Bouwens said that at some point the applicant also pushed Mr Bouwens a few times and this nearly caused him to fall over (27/02/23; T 499). Mr Bouwens’ evidence was that the applicant would stop hitting the deceased, turn around and push Mr Bouwens away, and he did this with two closed fists. Mr Bouwens said he was not sure if there was blood on the applicant’s hands, although the deceased’s face was bleeding. He said the applicant had punched the deceased’s face probably more than ten times by the time he pushed him (28/02/23; T 592-593).

93. Mr Bouwens said that, during the punches, the deceased fell backwards “sort of thing” onto his bottom onto a step; and that the applicant, who was still at the bottom of the steps started to kick the deceased, as if he was kicking a wall or a door, trying to get in, with the bottom of the applicant’s foot coming into contact with the deceased’s face. Mr Bouwens said that the applicant was mainly kicking the deceased in the face and that it caused more blood to come from the deceased. Mr Bouwens said the applicant was yelling “Get out” and “leave”. Mr Bouwens was not sure how many times the applicant kicked the deceased but he said it could have been possibly more than five times. Mr Bouwens said he was pretty sure the applicant used both feet. Mr Bouwens was also pretty sure that the applicant had thongs on that night but was not sure if he was wearing them while kicking the deceased (27/02/23; T 499-501).

94. Mr Bouwens said that after his pushes to the applicant (to try to get him off the deceased) the deceased got himself up. Mr Bouwens thought the deceased used the handrail. Mr Bouwens said that the applicant stood right in front of the deceased as he got up (27/02/23; T 499-501).

95. Mr Bouwens said that the deceased went inside the house and the applicant followed him. Mr Bouwens said that the applicant had blood on him, he thought mainly on his face and a strip down his shirt (27/02/23; T 501-502).

96. In the course of his evidence, Mr Bouwens marked positions on a photograph of the back door and patio, through the assault out the back of the house (Ex 6), showing the deceased on the step, the applicant in front of the step, and Mr Bouwens to the applicant’s side (28/02/23; T 597).

97. Mr Bouwens’ evidence was that he did not go inside the house at all (28/02/23; T 590).

Call to Ms Jones while the deceased and the applicant were inside house

98. Mr Bouwens’ evidence was that when the deceased and the applicant went inside the house, he went out the front to where the driveway meets the road and called Mr Radburn. Mr Bouwens said that he did this “to try and help me assist to stop Brendan”. Mr Bouwens said that he tried to call Mr Radburn around four times but Mr Radburn would not pick up; and then Mr Bouwens called Ms Jones. Mr Bouwens said that he told Ms Jones “to get Ricky down cause I can’t stop Brendan”, though he could not remember the words that he used. Mr Bouwens said that initially during the call to Ms Jones the applicant and the deceased were inside and he could not hear anything. Mr Bouwens thought he was on the phone to Ms Jones for maybe two to three minutes (27/02/23; T 502-504).

Front yard assaults

99. Mr Bouwens gave evidence that, while he was still on the phone to Ms Jones, the deceased and the applicant came out of the house again and he could see them in the driveway. Mr Bouwens could not recall what was being said. Mr Bouwens said that he saw the deceased at the front of the car, with the applicant very close behind him, and he thought that the applicant was pushing the deceased to the back. Mr Bouwens was not too sure if anything was said (27/02/23; T 504). Mr Bouwens could not see if the deceased was carrying anything but thought he had keys and a phone (27/02/23; T 505).

100. Mr Bouwens said that the applicant and the deceased went around to the driver’s door (27/02/23; T 504). He thought he was still on the phone to Ms Jones at the time (27/02/23; T 555). Mr Bouwens said he thought the applicant was “just telling [the deceased] to leave”. He said he did not remember the deceased saying anything. Mr Bouwens thought this was when the applicant starting hitting and punching the deceased again. Mr Bouwens thought the deceased was trying to get into his car, with his right hand trying to open the door handle. Mr Bouwens did not see whether the deceased got the door open. Mr Bouwens said that the applicant was on his right side, punching the deceased to the face. Mr Bouwens was not too sure how many punches there were (27/02/23; T 505).

101. Mr Bouwens said that the applicant was still yelling at the deceased to leave and thought that was when the applicant “knocked him out” because the deceased fell to the ground, “sort of on his bum”, leaning into the car with his left shoulder. Mr Bouwens thought that the applicant had knocked the deceased out. Mr Bouwens said that the applicant then “started to knee” the deceased to his head, probably about five times, using “a fair bit of force” (27/02/23; T 506). Mr Bouwens said he could hear (not see) banging against the car and that it was the deceased’s head banging against the car. Mr Bouwens could not recall if the applicant was saying anything but said the deceased was not saying anything and was not moving. Mr Bouwens said that during the “kneeing” he was standing very close to the back of the car (27/02/23; T 507).

102. Mr Bouwens did not know whether the deceased fell or the applicant pushed him but said that the deceased ended up on his back “laying feet to the front of the car and head at the end” near the back wheel (27/02/23; T 508). Mr Bouwens thought he was still on the phone to Ms Jones (27/02/23; T 511). Mr Bouwens said that the applicant starting jumping on the deceased, that the applicant put his right hand on the car and left hand on the top of the fence, “levering himself up” with his arms and jumping on the deceased’s head, chest and shoulders (27/02/23; T 508). Mr Bouwens said that the bottom of the applicant’s feet (he thought the whole feet) came into contact mainly with the side of the applicant’s head or face but also his chest and shoulders as well. (At this point in the evidence, Mr Bouwens asked for a break and the trial judge said they could have a break or “wait and see if [Mr Bouwens] can collect himself”. Mr Bouwens decided to continue; 27/02/23; T 509).

103. Mr Bouwens said he could not remember if the applicant was saying anything; he said that the deceased was just lying there, not making any noise. Mr Bouwens was not too sure if he was still on the phone to Ms Jones while the applicant was jumping on the deceased and could not remember when they hung up (27/02/23; T 509; T 511-512).

104. Asked how far away he was when the applicant jumped on the deceased, Mr Bouwens said “I was trying to push him off” and that he would walk up to the applicant and try to push him “same as what I did out the back”. Mr Bouwens said he did this “a lot of times”, with both his hands to the applicant’s chest (27/02/23; T 510). Mr Bouwens said his own feet would have been really close to the deceased’s head when he pushed the applicant, with both hands to his chest (27/02/23; T 515). Mr Bouwens said his pushing did not have much effect on the applicant but that the applicant “fell back a little bit” and then pushed Mr Bouwens in the chest with his two fists (27/02/23; T 510), which caused Mr Bouwens to go “flying back” and fell back two or three metres but did not end up on the ground (27/02/23; T 511). Mr Bouwens said that he would then have been about three or more metres from the deceased (27/02/23; T 513-514).

105. When asked again about the respective positions of himself, the applicant and the deceased, Mr Bouwens said that after the applicant did three jumps “off the fence and the car” the applicant stood over the deceased with his feet on either side of him, lifted him by clenching the front of his shirt and dragged him to the back of the car (27/02/23; T 514). Mr Bouwens said that the deceased was just lifeless when being dragged; not moving or saying anything. Mr Bouwens said, after the applicant moved the deceased, this was the closest that Mr Bouwens got to the deceased, at his head (27/02/23; T 515-516).

106. Mr Bouwens said that he was not sure if, after he (Mr Bouwens) fell backwards, the applicant then jumped on the deceased or whether that was when the applicant ran up Johnson Street towards Bogan Gate Road (27/02/23; T 512).

107. Mr Bouwens said that he would not have a clue how long it was between the applicant turning the power off and the applicant running away (27/02/23; T 512-513).

After the applicant ran away

108. Mr Bouwens’ evidence was that, when the applicant ran up the road, up Johnson Street towards Bogan Gate Way, he (Mr Bouwens) “just stood around freaking out, waiting for Ricky to turn up” at the end of the driveway (27/02/23; T 513; T 562). Mr Bouwens thought he called Ms Jones a second time again and asked where Mr Radburn was (27/02/23; T 513). (This is not supported by Ex F.) Mr Bouwens said that at this time the deceased’s face was covered in blood and the deceased was not moving or making any noises. Mr Bouwens did not go to check on the deceased (27/02/23; T 518).

109. In cross-examination, taken to Ex F which showed no call to Ms Jones after 3:55am (until the second call to Ms Jones at 4.17am), Mr Bouwens said the second call may have been to Mr Radburn’s phone, which Mr Radburn did not have with him (when Mr Radburn went to Johnson Street) (28/02/23; T 600-601).

110. Mr Bouwens said that when Mr Radburn arrived he was still standing on the driveway, closest to the road; estimating that this would have been about five metres from the deceased. Mr Bouwens said Mr Radburn stopped his car near the power pole, a couple of metres down the road towards town (27/02/23; T 518). Mr Bouwens could not remember the first thing Mr Radburn did when he got out of the car nor whether they spoke (27/02/23; T 519).

111. Taken to his ERISP, in which Mr Bouwens had suggested that the applicant ran off when Mr Radburn turned up (Q/A 441), Mr Bouwens did not think this was correct. He said that the applicant ran back (to the Johnson Street house) once Mr Radburn turned up (28/02/23; T 605).

Applicant’s return

112. Mr Bouwens said that he called 000 on his phone but could not speak and gave the phone to Mr Radburn. Mr Bouwens said that he was scared (27/02/23; T 519). Mr Bouwens thought the 000 call was made straight away when Mr Radburn arrived (28/02/23; T 602). Mr Bouwens said that he was standing three metres or something away from Mr Radburn the whole time that Mr Radburn was on the 000 call. He was not sure where Mr Radburn was holding the phone (27/02/23; T 519-520).

113. Asked whether anything happened while Mr Radburn was on the phone to 000, Mr Bouwens said “That’s when Brendan come running back” (27/02/23; T 520). Mr Bouwens was not too sure how long Mr Radburn had been on the phone by then, estimating that it was maybe a couple of minutes (27/02/23; T 521). Mr Bouwens said that he and Mr Radburn were still together at the end of the driveway (27/02/23; T 521; 28/02/23; T 603-4).

114. Mr Bouwens said the applicant came back from the “Bogan Gate side” of the street and from the directions of the houses (rather than the pubs); that the deceased was still in the same spot behind the car; and that the applicant jumped back on the deceased. Mr Bouwens said “He just ran back, and then I’m pretty sure he just used both feet and jumped” and that his feet came into contact with the deceased’s head (27/02/23; T 520). Mr Bouwens was not sure how many times the applicant jumped on the deceased. Mr Bouwens thought the deceased gurgled but did not say anything or move (27/02/23; T 521).

115. Mr Bouwens said that Mr Radburn went to walk over to the applicant and said “something like get off him”. Mr Bouwens was not sure how close Mr Radburn got to the deceased but said it was not too close. Mr Bouwens did not think that Mr Radburn and the applicant touched each other (27/02/23; T 521). Mr Bouwens said that the applicant went up to Mr Radburn and said “you’ll be next or something like that” in an angry voice (27/02/23; T 522). Mr Bouwens did not think Mr Radburn did anything after the applicant said that, and said that he thought Mr Radburn was still on the phone. Asked if Mr Radburn was still on the phone (the 000 call) at that point, Mr Bouwens said “At that point, I think he was” (27/02/23; T 522; see also 28/02/23; T 603).

116. In cross-examination, asked whether the 000 call was made “straight away” when Mr Radburn arrived, Mr Bouwens said he thought so (28/02/23; T 602). Mr Bouwens said he could not remember the events between Mr Radburn arriving and the phone call being made. Mr Bouwens was “pretty sure” the applicant did not return before the 000 call (28/02/23; T 602). Mr Bouwens maintained that the applicant returned while Mr Radburn was on the phone and that the applicant jumped on the deceased’s head again. Mr Bouwens was not sure how far the applicant was away from Mr Radburn when the applicant said “you’ll be next” but said “not far away” (being a metre or two) (28/02/23; T 603-604). Mr Bouwens said the applicant’s voice was angry, but not too loud (28/02/23; T 604).

117. The 000 call (Ex D) was played to Mr Bouwens and he was provided with the transcript of the call (28/02/23; T 606-607). Asked to identify when it was that the applicant came back and Mr Radburn told him to stop; and when the applicant jumped on the deceased, Mr Bouwens said “I’d say when it went quiet” (28/02/23; T 607). Mr Bouwens denied that he was lying about the applicant coming back while Mr Radburn was on the phone (28/02/23; T 608).

118. Mr Bouwens was not too sure where Mr Radburn had the phone (during the 000 call), for example whether it was up to his ear or something else (28/02/23; T 604).

119. Taken to his ERISP in which Mr Bouwens said:

That’s - I think Ricky threw me the phone when he was still on the phone to triple-zero. And then Brendan took off and said he was ‘next’.

Mr Bouwens’ evidence at trial was that he did not remember the phone being tossed to him or of him holding the phone (28/02/23; T 606).

120. Mr Bouwens did not remember sitting in Mr Radburn’s car at any point before the police arrived and did not remember going for a drive with Mr Radburn, including through the 000 call (cf Mr Radburn’s statement to the police). Mr Bouwens said he was not in the car at any point when it drove in reverse with its lights off (27/02/23; T 558).

121. Mr Bouwens’ evidence was that he did not remember having (or did not have) a discussion with Mr Radburn about the detail of the applicant stomping on the deceased while Mr Radburn was on the 000 call (28/02/23; T 619-620).

122. Mr Bouwens said that the applicant ran off, away from town. Mr Bouwens did not remember the applicant say anything else to the deceased through the whole incident apart from telling him to leave (27/02/23; T 522-523).

123. Mr Bouwens said that all he knew that the applicant was wearing were his footy shorts and thongs ;and that he did not see the applicant again that morning (27/02/23; T 522). Mr Bouwens said that through the whole incident he did not take off his moonboot (27/02/23; T 524; T 543-544). Mr Bouwens said he was not injured at all (27/02/23; T 528).

Police arrive

124. Mr Bouwens said that once the applicant left again he and Mr Radburn just stayed together on the front lawn and driveway waiting for the police to arrive. Mr Bouwens said that he was two metres or so from the applicant. Mr Bouwens did not think that he or Mr Radburn went near or checked on the deceased. Mr Bouwens said that the deceased coughed but he did not see him move (27/02/23; T 522-523).

125. Mr Bouwens thought Mr Radburn stayed on the 000 call until the police arrived, then Mr Radburn gave Mr Bouwens’ phone back to him (27/02/23; T 522-523). Mr Bouwens said he gave the police the deceased’s phone, which he picked up from the driveway “sort of near” the corner of the house behind the car (27/02/23; T 523; T 557). In cross-examination, Mr Bouwens was unable to say why he picked the deceased’s phone up at the scene. Mr Bouwens said he took it to Mr Radburn’s car without realising he had it and then gave it to police (28/02/23; T 601).

126. Mr Bouwens thought he spoke to two police officers. He did not remember what they spoke about, although he gave them his name and mobile number (27/02/23; T 524-525; T 557). Mr Bouwens said that stayed with the ambulance until the police said he could go. He was not sure how long the police were there before he left (27/02/23; T 524).

127. Constables Hugh Moore and Natalie Rolfe were the first police officers to arrive. They said that as they approached the Johnson Street house, Mr Bouwens and Mr Radburn were walking near the Johnson Street house towards town. Constable Moore (XN at T 649) saw Bouwens and Radburn walking in a south easterly direction along Johnson Street. Mr Radburn’s car was parked in the gutter behind them, in front of the Johnson Street house (28/02/32; T 649-650; 670-671).

128. Their account is that Mr Bouwens said to Constable Moore “We walked over here, then we seen him over there and then we was just like” and made a gesture as if to say “I don’t know” and said “That’s when we called” and that Mr Bouwens told Constable Rolfe that the person was “all in black” (28/02/23; T 656-657).

129. Mr Bouwens’ evidence at trial was that he did not remember these conversations. He said that, assuming he said these things to Constable Moore, they would have been lies. Mr Bouwens agreed that he did not just come across a man lying over there; and so it must have been a lie (told almost straightaway when the police showed up). He agreed it was a lie when he said the person was dressed all in black. Mr Bouwens did not know why he told these lies, apart from he was scared and freaking out (27/02/23; T 559).

130. After they left the Johnson Street address, Mr Bouwens and Mr Radburn went to Mr Radburn’s house. Mr Bouwens said that Mr Radburn drove them both back to Mr Radburn’s house. He did not know what time it was when they got there. Mr Bouwens said that he thought Ms Jones might have been up but he did not speak to her and did not speak with Mr Radburn. Mr Bouwens thought he just went straight to bed. Mr Bouwens slept in his underwear and put his clothes on the floor (27/02/23; T 525; T 546).

Police statements

131. In the morning of 23 January 2021 Mr Bouwens was woken by Detective Townsend. Mr Bouwens got dressed into the same clothes he had worn the previous night. Mr Bouwens said that not long after that he and Mr Radburn went to the police station. He thought that Mr Radburn drove them there. Mr Bouwens did not remember how long they were at the police station (27/02/23; T 525-527).

132. Mr Bouwens gave his first police statement at about 8:00am (see above). At the trial, Mr Bouwens said that it was not the truth and that he did not tell the truth because he was scared of the applicant (27/02/23; T 530). Mr Bouwens’ evidence was that he did not remember, before going to the police station the first time, discussing the content of any statement with Mr Radburn (27/02/23; T 546; 28/02/23; T 617); and did not remember any point on 23 January 2021 discussing what he might tell the police. Mr Bouwens said the only thing he recalled of a possible conversation with Mr Radburn, before the first statement, was about telling the truth (27/02/23; T 548).

133. After the first statement, Mr Bouwens went back to Mr Radburn’s house. Mr Bouwens did not remember what he did or whether he spoke to anyone but thought they went back to bed for a bit (27/02/23; T 527; T 541-542). Mr Bouwens said that when he woke up he went to the kitchen; he thought that Mr Radburn and Ms Jones were there and that there was a conversation in the kitchen in which Mr Radburn said “If you haven’t told everything, you better go down and tell them” (27/02/23; T 527; T 541-542; 28/02/23; T 618). Mr Bouwens thought that Mr Radburn’s father turned up but he was unsure if he was there for the conversation in which Mr Radburn had said the above.

134. After this, Mr Bouwens, Mr Radburn and Mr Radburn’s father went back to the police station and Mr Bouwens gave his second statement some time after 1:00pm (see above) (27/02/23; T 528; T 538).

135. As noted earlier, Mr Bouwens accepted that his first statement contained various lies, including that he had been staying with Mr Radburn rather than the applicant (though he said he did stay with Mr Radburn some of the time); that he had left Mr Radburn’s house to go to the Post Office Hotel rather than the applicant’s house the previous night; and that he had called Mr Radburn to pick him up after leaving the Commercial Hotel.

136. Mr Bouwens said that by the time of his second statement he had had time to think about it, knew it was very important to tell the truth and had full intentions to tell the truth but accepted that he did not tell the truth in the second statement “to the full extent”. Mr Bouwens said that he did not know why; that he was “just freaked out” straight after it happened and was scared and traumatised (27/02/23; T 541; T 554; 28/02/23; T 619). Mr Bouwens said he very vaguely recalled making the second statement (27/02/23; T 554).

137. Mr Bouwens accepted that he lied in the second statement about not knowing the deceased’s name but denied this was done to distance himself (27/02/23; T 542-543). He said he did not know why he had said in his second statement that the applicant had “got the shits and walked off” from the Commercial Hotel with Mr Bouwens following some way behind (27/02/23; T 553). Mr Bouwens accepted that he did not mention going around the back of the house or an assault occurring at the back of the house in either of his first or second police statements (28/02/23; T 599). Mr Bouwens also accepted that he did not say in either statement that he touched the power box at some point to try to turn the lights back on (27/02/23; T 563). In cross-examination, when asked when he first gave a true account of what had happened, Mr Bouwens said “parts of my second statement were true and then when I got arrested at Lake Illawarra Police Station” (the occasion when the ERISP was recorded) (28/02/23; T 618).

138. Mr Bouwens was also cross-examined about statements he made on 8 April 2021 in the ERISP to the effect that his memory had come back through dreams (see above). Mr Bouwens said that it was not the case that his memory came back through dreams but that he dreamt about the incident.

139. In the ERISP, Mr Bouwens said that he had told no one about the applicant stomping the deceased (Q/A 552; 28/02/23; T 623):

Q: ...We’ve... obtained statements from several people who have told us that you’ve gone to them within a day, not even hours after making your second statement...you’ve gone into detail regarding the stomp, Brendan stomping in [sic] Bradley Dixon.

A: I’ve not told no one.

140. Mr Bouwens’ evidence at trial was that he told the police he told no one as at the time he did not remember talking to anyone (28/02/23; T 624). When the conversations with various persons were put to him in cross-examination, Mr Bouwens largely did not recall the content of those conversations but accepted that there were conversations with Mr Neilsen, Ms Cantwell and others (see below) (28/02/23; T 624-640). Mr Bouwens denied it was possible he told people a version of events because he himself had some involvement in the death of the deceased. He denied that he assaulted the deceased in any way or was involved in his death “in any way at all” (28/02/23; T 645).

Mr Radburn’s evidence

141. As noted above, Mr Radburn gave his first account of his involvement in the events on 23 January 2021 in the 000 call that he made at around 3:55am. He gave a similar account to police who attended at the scene and in his first police statement on 23 January 2021. There was no dispute at the trial that the account he gave as to how he came to be at the scene and various of the events that happened at the scene was untrue.

142. Mr Radburn made a second police statement in the afternoon of 23 January 2021.

143. At the trial, Mr Radburn said he gave an untruthful account to the 000 operator because he was in shock and because he knew who did it at the time. He said he knew it was the applicant because Mr Bouwens had told Ms Jones on the phone.

First statement

144. As to the first police statement (MFI 10), Mr Radburn said Mr Bouwens had been living with him in Forbes; and that on 22 January 2021 Mr Bouwens went to the pub and he (Mr Radburn) stayed home (22/02/23; T 188). At the trial, Mr Radburn denied that he was intending by the last of those statements to convey that Mr Bouwens left Mr Radburn’s house for the pub (22/02/23; T 190).

145. Mr Radburn said that when he woke up from Mr Bouwens calling him early on 23 January 2021 he spoke to Mr Bouwens over the phone on Snapchat; that Mr Bouwens asked if he (Mr Radburn) could pick him up from near the pool; he drove down to get him from the pool and he saw Mr Bouwens standing on the side of the road on Johnson Street about 100m from the pool (22/02/23; T 190-192). Mr Radburn said that, after he collected Mr Bouwens from that location (22/02/23; T 193; MFI 10 at [7]):

I did a U-turn and headed back on Johnson Street. As I was driving, in my headlights I saw a man standing at a house in a driveway on the left-hand side of Johnson Street. I pulled up because I saw the male had stomped his foot by picking it up and slamming it down. This action drew my attention because I saw another male was laying on the ground nearby where he had stomped his foot. I pulled up because I knew it was an altercation that was occurring from seeing previous incidents and fights occurred during my life. I do not know where the male landed his foot...

146. Mr Radburn maintained at trial that he saw a stomping on the head, although not at that time, but said that the rest of the above extract of his first statement was not true (22/02/23; T 193).

147. Mr Radburn did not identify the applicant but purported to give a description of the standing male (22/02/23; T 194-195). (In his evidence at trial, Mr Radburn said he did not identify the applicant because he was scared and the applicant was a mate: 22/02/23; T 213.) Mr Radburn said (22/02/23; T 197; MFI 10 at [8]):

Upon seeing my vehicle pull up, the male has run along Johnson Street in a westerly direction. I did not see where he went.

148. Mr Radburn then gave reasons why he could not chase the male; and said (22/02/23; T 197; MFI 10 at [9]):

As soon as the male ran off, Corey and I exited the car and walked over to the male that was on the ground.

149. As to the 000 call, Mr Radburn said (22/02/23; T 198-199; MFI 10 at [10]):

I contacted triple-0 and remained standing at the rear of my own vehicle, which was about 50 metres away from where the male was on the ground.

The male triple-zero operator wanted me to go over and help him, and I couldn’t physically do it because I was in instant shock.

150. Mr Radburn said that Mr Bouwens “stayed over near the male on the ground” (22/02/23; T 200).

Second statement

151. In his second statement, Mr Radburn said (22/02/23; T 205; MFI 11 at [8]):

After I gave all my details [to police at the scene], Corey and I went back to my place in my car. I had a conversation with Corey, and I told him what I was going to tell the cops. What I wrote in my first statement is what I told Corey. The reason I didn’t give this information during my first statement was because I was really shocked and worried.

152. Mr Radburn in his second statement gave an account for the first time of the applicant returning and assaulting the deceased while he was on the 000 call, including (22/02/23; T 207; MFI 11 at [7]):

I went over to Brendan and called out his name. I was trying to calm him down ... When he slapped my arm away, we were face-to-face. He was so close to me that if I had swung at him I would have hit him.

Evidence at trial

153. Mr Radburn gave evidence that, as at January 2021, he had known the applicant for about two-three years and, through the applicant, Mr Bouwens for about one year. Mr Radburn saw the applicant several times a week and was closer to him than Mr Bouwens (21/02/23; T 142-143).

154. Mr Radburn said that on the night of 22 January he went to bed at around 10:00pm or 10:30pm and was with Ms Jones, his partner. He was woken in the night by his phone vibrating and saw that Mr Bouwens was trying to call him but he just ignored it and turned his phone off, thinking “they were just ringing, like being drunk” (21/02/23; T 145). He said Ms Jones’ phone then rang immediately afterwards. Mr Radburn said that he did not know what was said on the phone call, but Ms Jones said something to him which made him get changed into football shorts and jump in his car and leave within a couple of minutes of receiving the phone call (21/02/23; T 146-147). In re- examination, Mr Radburn said Ms Jones told him that the applicant was bashing a fellow and he was going apeshit; and that Mr Bouwens could not stop the applicant and needed Mr Radburn’s help to stop him (22/02/23; T 215). (The trial judge directed the jury this could not be used as the truth of the assertions made (22/02/23; T 215) but it does provide some corroboration for Ms Jones’ account that Mr Bouwens said words to that effect to her.)

155. Mr Radburn said that he drove to Trina Doolan’s house in Ms Jones’ bluey-silver Kia Rio; that it did not take him very long to drive there; and that he had headlights on. Mr Radburn did not take his phone with him (21/02/23; T 148).

156. Mr Radburn said he pulled up directly in front of the driveway to Trina Doolan’s house, off the side a little bit, facing town. He said Mr Bouwens was “standing there” on the left side of the driveway, on the grass bit, “pretty much next to the road” (21/02/23; T 149). He saw a man lying on the driveway on his back near a parked car. He could hear the man struggling to breathe and making a “gurgling” noise. Mr Radburn could not recall if Mr Bouwens said anything to him. He said Mr Bouwens was “shaken like a leaf, like, scared sort of thing” (21/02/23; T 150).

157. Mr Radburn said that probably a few minutes after he got there he asked Mr Bouwens what happened; if anyone called for an ambulance (or police); and for his phone to call an ambulance. He said Mr Bouwens did not answer his question about what happened (or Mr Radburn did not recall the answer) but Mr Bouwens said that no call had been made and gave him his phone (21/02/23; T 150-151). Mr Radburn said they were about five metres from the person on the ground (21/02/23; T 164-165). Mr Radburn said this was all that happened before he made the 000 call.

158. Mr Radburn said he called 000 and asked for an ambulance and that, when he made the 000 call, he was standing near the road pretty much next to his car, “shitting” himself, and Mr Bouwens was next to him. Mr Radburn said he could not hear anything from the person on the ground. Mr Radburn gave evidence that he was on the phone to 000 until the police arrived (21/02/23; T 152).

159. Asked whether he did anything between calling 000 and the police arriving, Mr Radburn said that “We went for a drive to look for Brendan” in his car, which he drove with Mr Bouwens in the passenger seat and with headphones on. Mr Radburn said that the drive went for five minutes; that they drove up Battye Street and he yelled out “Brendan”. During this time, Mr Radburn said that he held the phone in his hand, just beside him, on speaker. He thought they went up Battye Street. Mr Radburn said that Mr Bouwens called out something but he did not hear what it was; that there was no response and they went back to Trina Doolan’s house. Mr Radburn said they were gone for a minute and he parked facing in the driveway on a bit of an angle with the parking lights on (21/02/23; T 152-154).

160. Mr Radburn said that he and Mr Bouwens got out of the car. Mr Radburn said he stood in the driveway. He said the applicant came back and violently grabbed the person on the ground by the shoulder and dragged him a metre or so backwards towards the road, told him to get up reasonably loudly, and then jumped on him (or stomped him with his foot to the head) twice again (21/02/23; T 155-156). Mr Radburn said that he was still on the 000 call when the applicant returned (21/02/23; T 165-167).

161. Mr Radburn said he was about five metres away from the person on the ground but went over to the applicant and pushed him across the chest to stop him. Mr Radburn said that this moved the applicant about a metre from the person. Mr Radburn said the applicant pushed or slapped Mr Radburn’s arm away and “aggressively” and “pretty loud[ly]” told him he “was next”. Mr Radburn said that the applicant ran away up Johnson Street. Mr Radburn did not know where Mr Bouwens was when this happened. Mr Radburn said that it was maybe ten minutes between the applicant running away and the police arriving (21/02/23; T 157-158).

162. During Mr Radburn’s evidence, the 000 call was played (21/02/23; T 158). Mr Radburn had listened to the call a day or so before he gave evidence in the trial (21/02/23; T 160-167). (He had earlier given evidence in the Dubbo Local Court unaware that there was a recording of the call. Mr Radburn had a transcript of that evidence. The applicant notes that Mr Radburn’s evidence at trial was largely consistent with what he had said in the Dubbo Local Court (21/02/23; T 167)).

163. At the trial, Mr Radburn agreed that he said three times in the 000 call (the last time also to the attending police) that he was just picking his mate up from the pub and that he was effectively telling the 000 operator that he and Mr Bouwens just came upon this person. Mr Radburn did not know why he said these lies but denied he was trying to distance himself and Mr Bouwens as much as possible from the deceased (22/02/23; T 212).

164. Mr Radburn could not identify when, in the course of the 000 call: he went for a drive; when the applicant came back; when he called out to the applicant (trying to calm him down); when the applicant dragged the deceased and stomped on him; or when the applicant said “you’re next” but maintained that this account was not a lie (21/02/23; T 168-169; 22/02/23; T 210).

165. Mr Radburn agreed that he found the applicant coming back “shocking” but said it did not occur to him at all to tell the operator what was going on with the applicant. Mr Radburn said he was in “shock” when he told the operator he was 50 metres away (and that he was not good with distances). He did not remember whether this was before or after he went over to the applicant (as he recounted in his second statement). Mr Radburn said he had the phone in his other hand when he pushed the applicant away. Mr Radburn said that he was scared to tell the operator what he saw (21/02/23; T 168-170).

166. In cross-examination, Mr Radburn admitted that he lied in various respects in his first police statement: that Mr Bouwens had been living with him for about a month; that he spoke to Mr Bouwens in the morning of 23 January 2021 before he went to pick him up; that he picked Mr Bouwens up from near a pool; and that he saw an altercation on Johnson Street on the way back by chance (22/02/23; T 188-193). He was unable to explain why he lied about specific things that were put to him but later said he lied in his first statement because he was scared of the situation because it was a murder. He denied that it was possible he lied to protect Mr Bouwens (22/02/23; T 201).

167. Mr Radburn said that, back at his house (in the early hours of 23 January 2021 before he gave his first police statement), he told Ms Jones what he saw and that she said not much back, nothing that he recalled (22/02/23; T 205). The effect of Mr Radburn’s evidence was that Mr Bouwens was not there for this conversation. Mr Radburn said that when he got home, he spoke to Ms Jones and cried; and that Mr Bouwens showered and stayed in a spare room. He said that the following morning they went with a detective to give statements. They were there for a few hours and then went back to Mr Radburn’s home.

168. Mr Radburn said he was picked up again later that afternoon to go back to the station. He said he did not tell the truth to police in his first statement but did in his second statement (21/02/23; T 162).

169. In cross-examination, Mr Radburn agreed that he was absolutely certain that he did not have a conversation with anybody prior to making his second statement (22/02/23; T 202). He was then asked whether he remembered saying in the second statement that, after he made the first statement, he spoke to his father and told him what actually happened, and that his father told him and Mr Bouwens that they had to go and tell the truth. Mr Radburn said he did remember telling his father and agreed he had a conversation with him. He agreed that what he said (four to five questions earlier) about him not having any conversations with anybody was a lie, for which he had no explanation. Mr Radburn maintained that his father had separate conversations with him and Mr Bouwens (22/02/23; T 202-203).

170. Mr Radburn repeatedly said that he had not, at the time he made the first statement, spoken to Mr Bouwens about what happened and denied having any conversation with him before they went to the police (22/02/23; T 206). Cross-examined on a paragraph in his second statement where Mr Radburn said that he had a conversation with Mr Bouwens and “told him what I was going to tell the cops” after they went back to his house on the morning of 23 January 2021 (i.e., before they made their first statements), Mr Radburn accepted that there was a conversation and that he had lied in court by saying there was none. Mr Radburn said he had no reason why he lied about this in court and again denied that he was trying to protect Mr Bouwens. Mr Radburn said he was trying to protect himself because he did nothing wrong and was brought into a situation which was “fucked” (22/02/23; T 206). Mr Radburn agreed the way to have dealt with that would have been to tell the truth in his second statement, also made on 23 January 2021, and in court, which he had not done (22/02/23; T 206-207).

171. Mr Radburn said he did not remember, after making the first statement, having any conversation with Mr Bouwens, in which Mr Bouwens asked if he saw who did it, Mr Radburn said he did not, and Mr Bouwens said it was the applicant (22/02/23; T 213).

172. In re-examination, Mr Radburn said that he did not mention the applicant’s name in his first statement because he was scared and because he (the applicant) was his mate (22/02/23; T 213).

173. Mr Radburn denied that he had anything to do with the death of the deceased or touched him in any way (22/02/23; T 207; T 212-213).

174. The defence argued that Mr Radburn may have been motivated to lie to protect himself, as he was upset at being pulled into the situation and as he was trying to distance Mr Bouwens from involvement in the deceased’s death (08/03/23; T 1159-1162). The trial judge directed the jury that, if the jury was satisfied that Mr Radburn had a motive to lie, the jury would take that into account in their assessment of his truthfulness (SU 42).

Ms Jones

175. As at January 2021, Ms Jones had known the applicant for about two years and, through him, Mr Bouwens for about a year (22/02/23; T 217-218).

176. Ms Jones said that, on the night of 22-23 January 2021, Mr Bouwens called Mr Radburn’s phone a few times, but Mr Radburn did not answer; and that Mr Bouwens then called Ms Jones’ phone through Facebook and she answered. Ms Jones’ evidence was that Mr Bouwens said “I need Boog. Brendan has gone apeshit and is bashing a fella” and he “couldn’t stop him”. Ms Jones said that Mr Bouwens said they were near Trina Doolan’s house. She said he sounded distressed, stressed and scared. Ms Jones said she said something to Mr Radburn and he left, while she stayed on the phone to Mr Bouwens (22/02/23; T 219-221).

177. Ms Jones said Mr Bouwens “just kept saying he needed Boog, to hurry up, and then he said that Brendan had – came back. And I could hear him yelling…”. Asked who she could hear yelling, Ms Jones said “Brendan” and said he needed Mr Radburn to hurry up and that *“*Brendan had – come back” (22/02/23; T 221-222). She said she could hear the applicant yelling and two or three thumps (22/02/23; T 222; 228).

178. Ms Jones said she told Mr Bouwens to put her onto the applicant so she could try to calm him down and that she heard Mr Bouwens say “Tara’s on the phone…do you want to talk to her?” and the applicant said no. Ms Jones said she heard the applicant say “Get up” two or three times and Mr Bouwens said “I think he killed him”. She said that not long after that Mr Bouwens said he could see Mr Radburn’s headlights and the call ended (22/02/23; T 222).

179. Ms Jones sent two text messages when the call ended (see above). Ms Jones said that at no stage did Mr Bouwens say he was out the back or out the front of the house (22/02/23; T 243). In cross-examination, Ms Jones said, in relation to the message “Ricky will legit bash brendan if he starts”, that she “assumed it was a simple punch up, and [Mr Bouwens] had been trying to stop Brendan and said that he – when he was trying to stop Brendan, Brendan would start on him…” (22/02/23; T 229).

180. Ms Jones did not call 000. She said she assumed it was just a simple fight (22/02/23; T 229).

181. Ms Jones said she was awake until Mr Radburn and Mr Bouwens came home around 5:00am. She said they “seemed very distressed”; they sat down in the living room, were really quiet and were both in that room when she went to bed (22/02/23; T 226-227). Ms Jones said she did not recall if there was any conversation (22/02/23; T 227-228). Her evidence was to the effect that the only thing Mr Radburn ever told her was that a “fellow was bashed to death” and, when she asked where the applicant was, Mr Radburn said he did not know (22/02/23; T 231).

182. Ms Jones said that Mr Bouwens’ version of events (in his second statement) that he was in the park near the pool and had kept walking and called Mr Radburn to pick him up and while waiting he continued walking towards Mr Radburn’s house was incorrect (22/02/23; T 240).

183. Ms Jones maintained in cross-examination what she said she heard during the phone call with Mr Bouwens (22/02/23; T 238). In this regard, the applicant points to Mr Bouwens’ statement in the ERISP that when he was talking to Ms Jones the applicant and the deceased were out the back and he could not hear anything (A 415-417; 22/02/23; T 241). However, I note that Mr Bouwens’ evidence at trial was that he was on the phone both when the others were out the back and when they came out to the front (see [65] above). Ms Jones gave evidence before Mr Bouwens at trial so that what he said in evidence was not put to her. However, it is possible to reconcile those accounts if the applicant and the deceased did come back out the front during the course of Mr Bouwens’ three minute call to Ms Jones, since if that was the correct timeline it was presumably possible for Ms Jones to have heard what she did of the altercation described by Mr Bouwens. What is clear is that Ms Jones could not have heard anything that happened during the 000 call, as that was made on the same phone as the earlier call to her.

184. In the summing-up, as adverted to above, the trial judge directed the jury that Ms Jones’ evidence of what Mr Bouwens said could only be used as evidence that he said it, not as evidence of the truth of what he said. The trial judge also directed the jury that voice identification evidence (here, Ms Jones’ identification of the applicant’s voice) may be unreliable and must be approached with special caution before being accepted as reliable, repeating some of the defence’s reasons why it was unreliable (SU 43-44).

Rickard Radburn Snr

185. The police did not take a statement from Mr Radburn’s father. The applicant notes that the Officer in Charge, Detective Senior Constable Lucan Payne, had no explanation for this (06/03/21; T 1049). Mr Radburn Snr was not called in the trial.

Other witnesses

● The applicant’s mother (Trina Doolan)

186. Ms Doolan said that the family had known Mr Bouwens since around 2015 when he dated her daughter, and that he and the applicant had remained friends “off and on” since then. Mr Bouwens had moved to Forbes at the beginning of 2021 (21/02/23; T 69-70).

187. Ms Doolan gave evidence that she had known the deceased since the early 2000s. In late 2020, he rang her “out of the blue” and asked if he could stay with her, after they had not had contact for a few years (21/02/23; T 71). Ms Doolan said that she told the applicant and Mr Bouwens about this sometime before Christmas 2020. She gave evidence that the applicant “had heard that Brad was a paedophile and didn’t like the idea of [him] being there”. The applicant told her that “we [sic] wouldn’t come around while he was there”. Ms Doolan said that Mr Bouwens told her that “Brad had been seeing a younger girl. Apparently she’d lied to him about her age, and that he said she was 15, it turned out she was 12”. She said that the applicant was present for that conversation (21/02/23; T 72); and that the deceased arrived the next day in his car (21/02/23; T 73). (His car, a maroon Toyota Camry, was parked in the driveway at the Johnson Street house at the time of his death.)

188. Ms Doolan said that the deceased told her that he did not want anyone to know he was staying there and that in the time he was there he slept all day and would wake in the afternoon. Ms Doolan gave evidence that Mr Bouwens came to the house twice while the deceased was there: first, on the day the deceased arrived when Mr Bouwens came to her house to borrow some money to buy tyres; second, on 21 January 2021 when Mr Bouwens returned to assist her to service her car. Ms Doolan said that on the second occasion, the deceased did not get up until after Mr Bouwens had left at around 2:00pm. Ms Doolan said that the deceased was home on both occasions that Mr Bouwens visited but did not give any evidence that they saw one another (21/02/23; T 73-74).

189. On the morning of 22 January 2021, Ms Doolan left Forbes to go camping on the South Coast with her daughter and grandchildren. She said she did not see the deceased that morning but heard him snoring before she left. Ms Doolan remained on the South Coast until 24 January 2021 (21/02/23; T 76).

190. In cross-examination, Ms Doolan said she had a conversation with Mr Bouwens about the deceased staying and said that she was “going to ask him to find somewhere else to stay”. She said she had told both Mr Bouwens and the applicant that she was going away for the weekend. She had told the applicant that the deceased was at her house earlier in the week (21/02/23; T 78-79).

Evidence of witnesses who were with Mr Bouwens and the applicant earlier that night

191. Evidence was called from various witnesses who were with Mr Bouwens and the applicant over the course of the night on 22 January 2021, which was not contentious, to the effect that the applicant and Mr Bouwens were in good spirits that night and that there was nothing unusual about their night out. In summary, that evidence was as follows.

192. Kally Molloy, a friend of the applicant and Mr Bouwens, did not go to the Post Office Hotel but gave evidence that she, the applicant and Mr Bouwens were drinking beer at the applicant’s house earlier in the evening. She and another friend, Meg Sladek, gave them a lift to the Post Office Hotel at about 10:30pm and said they did not appear to be intoxicated at that time.

193. Shane Neilson, the applicant’s cousin, gave evidence that the applicant and Mr Bouwens arrived at the Post Office Hotel at around 10:30pm and the applicant told him he had had a couple of beers already; and that the applicant was in a good mood. Mr Neilson said that when the group left the Commercial Hotel some people went back to someone’s house (Caitlin Northey’s house) but the applicant and Mr Bouwens did not go with them because Ms Northey (referred to in parts of the evidence as “Min”) didn’t want many people at her house, and “a few people there didn’t go much on Corey” (22/02/23; T 251-253).

194. Daniel Swanston gave evidence that he usually always saw Mr Bouwens and the applicant together (23/02/23; T 285). He said when they left the Commercial Hotel at around 3:00am he walked with Mr Bouwens and the applicant to his house which was quite close to the Commercial Hotel (23/02/23; T 286). It took 5-10 minutes to reach his house. He said that as they walked Mr Bouwens “kept up with the group” and he did not notice him dropping back (23/02/23; T 291). He could not recall if Mr Bouwens and the applicant went into his house with him. He said in cross-examination that he recalled having Canadian Club beverages in his fridge at the time (which was relevant because Mr Bouwens said that they did go to his house and he drank a Canadian Club from the fridge) (23/02/23; T 296-297).

195. Jennifer Schaefer, a good friend of Mr Bouwens, gave evidence that she received a video on the “Snapchat” messaging application from Mr Bouwens at about 3:00am on 23 January 2021 which showed the applicant and Mr Bouwens “giggling, laughing, walking down Johnson Street” near the Catholic Church. She said that she could not see Mr Bouwens in the video but could hear his voice (23/02/23; T 333-334).

Evidence of neighbours and local residents

Hailey Buchanan

196. Before summarising Ms Buchanan’s evidence at trial, it is relevant to set out the circumstances in which she came to give evidence.

197. On 1 July 2021, Detective Senior Constables Nolan and Sherlock spoke to Hayley Buchanan about an unrelated investigation involving a child (23/02/23; T 279-280). DSC Nolan knew that detectives investigating the deceased’s death wished to speak to someone matching Ms Buchanan’s description. DSC Nolan alluded to the deceased’s death (23/02/23; T 281). Ms Buchanan said it “really rattled” her and Ms Nolan asked what she knew about the murder (23/02/23; T 280). DSC Nolan’s evidence was that Ms Buchanan said words to the effect (23/02/23; T 281):

I was at the Forbes Inn on the night of the murder. When I was walking home down Johnson, I saw two blokes kicking the shit out of something on the ground. I heard yelping noises and just thought it was a dog or something. I didn’t know the blokes. The next day, I heard there was a murder and realised it was at the same house where I saw the two blokes.

198. Pausing here, at the trial, Ms Buchanan recalled speaking to DSC Nolan about the murder when reporting child abuse (though she could not recall her name) (22/02/23; T 171). DSC Nolan’s account of her conversation with Ms Buchanan was read to Ms Buchanan. Ms Buchanan was very unsure about what she told DSC Nolan but appears to have been adamant that she would not have said there were two blokes kicking as there were not (22/02/23; T 247-248).

199. DSC Nolan did not recall Ms Buchanan mentioning either of the two males running away (23/02/23; T 282). DSC Nolan asked Ms Buchanan if she spoke to the police at the time. Ms Buchanan said she spoke to one a few days later and told them what she saw but no one ever called her back. At the trial, Ms Buchanan guessed that the detective she spoke to on the evening of 23 January 2021 disregarded her as a “cracked-out drug user” (21/02/23; T 103). (The trial judge directed the jury on the potential for Ms Buchanan’s drug use to have affected her reliability: SU 43.)

200. It appeared to DSC Nolan that Ms Buchanan had been smoking, and was under the influence of, cannabis; but she also said that the account Ms Buchanan gave was lucid. DSC Nolan recorded what Ms Buchanan had said in an email 8 days after the conversation (23/02/23; T 280; T282-283).

201. Over the months after July 2021, Ms Buchanan was involved in driving offences, resisting an officer and drug supply. She was arrested several times (21/02/23; T 94; T 128-131; T 135). As at 1 October 2021 she was still using cannabis but said she was only using methamphetamine occasionally (21/02/23; T 130). On 21 October 2021 she handed herself into police on a warrant; she said this was after being given a hotshot, being in hospital and missing a court date. It was while in police custody that Ms Buchanan made her first police statement to Detective Payne (21/02/23; T 101-102; T 128; T 131). (As noted below, Ms Buchanan denied that she decided to make a statement because she was motivated to avoid custody.)

202. Ms Buchanan’s evidence at the trial was that at about 4:00am on a morning in January 2021 she left the Forbes Inn (where she was playing the poker machines) and walked along Johnson Street (on the opposite side from Trina Doolan’s house) on the way to her home in Cedar Crescent (21/02/23; T 84). She said she was concentrating on her phone as she walked (21/02/23; T 99-100; T 110).

203. Ms Buchanan said when she was walking up Johnson Street (effectively not quite opposite the Johnson Street house) she heard an “empty, hollow” sound, like the thud of someone kicking a dog “in the guts”. She said she heard “Get up. Fucking get up, cunt. Get up”, in a quite hostile, male voice. She said she was crossing the road from “St Laurence’s” along Johnson Street when she heard these noises. Ms Buchanan said she did not see any kicking, only heard it (21/02/23; T 85).

204. Ms Buchanan said she saw a man standing in the gutter near a tree out the front of a house (fairly close to the Johnson Street house) and another man standing a bit further in the yard out the front of a house, which she described as a brick duplex or flat in the middle of the front yard. Ms Buchanan said the man in the gutter had on long brown shorts, a bit past the knees, and a light coloured shirt which was “whitey-cream” (21/02/23; T 86). She said the man in the yard was slim, had brown bushy curly hair, a pink or salmon coloured shirt, camel/type skin coloured shorts and no shoes. Ms Buchanan said she saw the front of a white car parked in the yard of the house (21/02/23; T 88). (While the description of the clothing does not match the clothing worn by the applicant and Mr Bouwens, the location of the two men according to Ms Buchanan is consistent with Mr Bouwens’ account of events.)

205. With respect to the man in the yard Ms Buchanan said “I just seen someone standing there, and then I yelled at them and said ‘Your dog’s not going to listen to you when you’re beating the fuck out of it’, because I thought they were bashing a dog…” (21/02/23; T 87).

206. Ms Buchanan said that “next minute – I yelled at him, and then he’s running up the street”. She said he ran up Johnson Street (21/02/23; T 87). Asked where he was heading towards, Ms Buchanan said “There’s an old old people’s home on the corner and another street that will go straight down, and then another one going down towards the town off Johnson Street”. She said he was running to the “corner house” which she described as a “complex type thing”. (I interpose to note that this appears to be a description of the corner of Johnson and Battye/Prince Streets.) Ms Buchanan said that the man then ran into the middle of the yard of the corner house and then ran across the road directly at her. She said that she was still walking at this point. Ms Buchanan said that the man did not have any shoes on (21/02/23; T 89-90).

207. Ms Buchanan said that the man turned and ran away again straight down the street; not down Johnson Street this time but down past “the martyr [sic: Mater] aged care hospital”. Ms Buchanan described an area near Johnson Street where “you can go down past them flats, or you can go straight ahead down past [the Mater], and he went straight down past [the Mater]” (seemingly down Prince Street) (21/02/23; T 91).

208. Ms Buchanan said that another man then drove up to the corner of the duplex in a white SUV-type car from the direction where she first saw the two men and got out of the car and was yelling out “Dooley, Dooley” but that the man “just kept running like he’d seen a ghost” (21/02/23; T 91).

209. Ms Buchanan said that an old man with a dog walked out of the house she was in front of, onto his driveway, just past Little Underwood Street. She said the running male and the male with the dog were less than ten metres apart, possibly less than five (21/02/23; T 91-92). (The man with a dog is consistent with Mr Nelson’s account that he left his house to walk his dog around this time and with his description of seeing a woman with red hair and a sunken look – see below.)

210. Ms Buchanan gave evidence that she spoke to a police officer at the crime scene later during the afternoon of 23 January 2021 and told a detective that she had been walking past and heard someone getting kicked and the words “Get up, cunt, fucking get up”. Ms Buchanan said she gave that detective her phone number and that he called her to check it was right. She said she was told she would be contacted but she never was (21/02/23; T 107). Ms Buchanan said she remembered it “like a photograph” (21/02/23; T 136).

211. In cross-examination, Ms Buchanan accepted that it was likely that she was under the influence of drugs at the time she witnessed the events she described. She said she was a user of marijuana and methylamphetamine but on 23 January 2021 thought she would have only used marijuana and not methamphetamine because that was a drug she used with her partner who was not around at that time (21/02/23; T 94). Ms Buchanan accepted in cross-examination that she was not watching what happened intently because she was also writing a text message to her partner at the time (21/02/23; T 99) (this is consistent with Mr Nelson’s evidence that the woman he saw was looking at her phone).

212. In cross-examination it was put to Ms Buchanan that she did not say anything in her first statement about the man running into a yard and across the street and then approaching her. She said that “the detective obviously wasn’t listening, or was too busy writing down… other things”. In her statement, Ms Buchanan said that the closest she would have been to the man the whole time she saw him was the width of the roadway. In her evidence at trial, Ms Buchanan said this was wrong, said that she told Detective Payne (who took her statement) about the man approaching her and that he must not have included it (21/02/23; T 101-102).

213. Ms Buchanan was also cross-examined as to the fact that her 21 October 2021 statement did not mention the person in the car saying “Dooley”. Ms Buchanan in the statement said that she could hear a male voice yelling out something, she could not remember what it was, but it was possibly a name. In her evidence at trial, Ms Buchanan said that initially she told Detective Lucas the name had “ooley” in it when she made the statement but that when she did a photo board process and “saw the last name” she realised it was “Dooley” (21/02/23; T 103-104).

214. Ms Buchanan participated in a photo-board identification, on 21 January 2022. She also said then “I couldn’t: remember at the time, like a Tor something. Um, yeah, I don’t know”. In cross-examination, Ms Buchanan denied she knew by then that the applicant had been charged and said she did not know his name until she identified him in the photo-board (I note that Ms Buchanan did not correctly identify the applicant in the photo-board (see below)). Ms Buchanan said maybe it was “Dooley” that the person in the white car was calling out. She maintained in cross-examination that she was not aware of the applicant’s name before the photo board process and the police had never mentioned a name (21/02/23; T 103-106).

215. A video of a person walking at 3:44am was played to Ms Buchanan (Ex 2) and she said this was possibly her (21/02/23; T 118-119).

216. Ms Buchanan was also shown a video of herself completing the photo board identification process she referred to on a computer in the presence of police (Ex 3). (The transcript of the photo board process was MFI 5.) Ms Buchanan did not identify the applicant from the photographs, but selected a different male as the person who was kicking the dog (21/02/23; T 123-125; Exs 3-5). The applicant notes that no witness referred to the applicant as having the nickname “Dooley”. The applicant submits that the transcript and video evidence of the photo board notification show that Ms Buchanan was not certain of the identification.

217. Ms Buchanan was cross-examined about when she spoke to police (her evidence was that this was in July or August 2021, which is corroborated by DSC Nolan) and when she provided her statement to police (21 October 2021). Ms Buchanan denied that she was motivated to make a statement by a desire to avoid custody (21/02/23; T 135).

218. As adverted to above, Ms Buchanan was cross-examined on what DSC Nolan said was her account to her as to seeing “two blokes kicking the shit out of something on the ground”. Ms Buchanan said that she did not know whether she said that, and did not think she did say that but “probably would have said that I seen ‘two blokes in the yard’”. She said she did not see them doing anything but only heard the noises she described above. Ms Buchanan was adamant that she “didn’t say that there was two people doing things” and said “there was one person – there was two people in that yard. There was one person in the gutter with their back to me, and somebody else in the middle of the yard. Like, in the front yard”. Asked if it was “at all possible” that she said to DSC Nolan that there “were two blokes kicking [the] shit out of something on the ground?”, Ms Buchanan said “No, cause there wasn’t two blokes kicking the shit out of something” (22/02/23; T 248-249).

Peter Nelson

219. Mr Nelson lived at 39 Johnson Street, towards Black Street (24/02/23; T 445; T 449; T 451). He gave evidence that he woke up at about 3:00am on Saturday 23 January 2021 to take his dog for a walk. He said he walked out of his house at about 3:45am. From his veranda, he saw a girl walking past, heading out of town, who had a patch of red hair dyed distinctly bright red hair. He thought she was Caucasian and between 20 to 30 years; said she had a slim build; that her face looked “sunken”; and she was “buried in” her phone and did not look up at him (24/02/23; T 445-446). (It is reasonable to infer that Mr Nelson was the man with the dog that Ms Buchanan saw.)

220. Once Mr Nelson stepped onto the footpath on Johnson Street, after the woman passed, he heard someone calling out a name, “Dexter”, “Daxtor” or “Baxtor” or “something”. Asked if he saw or heard where the calling out had come from, Mr Nelson said “well, I was looking at towards that direction, that’s when I seen the car there with the headlights on and then what made me take note was that the headlights went out and then the car started reversing…”. Mr Nelson said he could only see the silhouette of the car but it was a small, 4-cylinder type of car. He then continued his walk down Little Underwood Lane and was walking for about two hours (24/02/23; T 447-448).

221. The woman was the only person Mr Nelson saw that night. He did not see a man running off, including down Battye Street (24/02/23; T 454).

Mark Angus

222. Mr Angus lived at Johnson Street two blocks away from Trina Doolan’s house (probably the distance of “the length of a prime mover and a semi-trailer” away) on the corner of Johnson and Battye Street (24/02/23; T 418).

223. At about 4:00am on 23 January 2021, Mr Angus was in his loungeroom (24/02/23; T 416). He heard dogs barking and went outside, where he heard screaming and yelling. Mr Angus heard a “prominent”, very husky male voice say multiple times “Come outside, you fucking dog” (24/02/23; T 416-417). He heard moaning and a couple of other voices yelling out as well. Mr Angus heard someone say “You got what you deserved, you dog. You got what you deserved”, which he thought was a different voice to the other one, and thought was more likely to be a female’s voice though he was unsure. He did not see anything but saw two cars driving around (neither of which matched the description of Mr Radburn’s car) – a black Mazda ute drive around while it was happening and something like a Volkswagen Terracan leave a couple of minutes after the sounds stopped (24/02/23; T 417). As Mr Angus went to call the police, they arrived (24/02/23; T 418).

Amy O’Donoghue

224. Ms O’Donoghue lived at Johnson Street, directly across the road from the Johnson Street house. At about 3:30am on 23 January 2021 she woke up and heard a male voice being aggressive, really loud and swearing, saying “Get up, you cunt”, about three or four times in a row. She said she heard two people or two voices but only one voice was saying “get up, you cunt”. She said she could also hear what sounded like “punching or an impact” which is what made her believe there was someone else there, and she also thought someone else was there because of what the first person was saying (24/02/23; T 423).

225. In cross-examination Ms O’Donoghue was asked if she heard any other voices and she responded that “the only thing I can recall is a single male voice that was really loud” and “what sounded like someone…wheezing or like, there was someone being hurt” (24/02/23; T 425).

226. Ms O’Donoughe went to the bathroom, where the sounds were not as clear. The sounds went on for maybe three to five minutes. She did not hear any cars (24/02/23; T 425-426).

Margaret Demamiel

227. Ms Demamiel lived at Queen Street, behind and a few houses from the Johnson Street house. She woke up at about 3:44am on 23 January 2021 and heard loud shouting. It went on for about 15 minutes, then stopped for about 5-10 minutes, then went on again for a few (two) minutes. In the first period, Ms Demamiel heard two male voices, maybe more, including one very aggressive voice repeating “fuck” very loudly over and over and another voice replying. In the second period, she heard what she thought were the same voices but she could not hear what was said. In a statement made that day, she said she knew there were more than two voices (24/02/23; T 428-430). In cross-examination she was asked about saying in her statement “I knew there was more than two voices” and said “I probably meant there could have been more than two”. Ms Demamiel was not sure where the voices came from; it was possible from Queen or Battye Street (24/02/23; T 432).

Matthew Teale

228. Matthew Teale lived at Johnson Street. He said that at about 3:30am he heard voices coming from the street that sounded agitated, including what sounded like a female’s voice. He went to the front of the house to see what was going on and saw four people walking on the footpath out the front of his house, being two females and two males. In cross-examination, he said he did not hear anyone saying words like “Get up, you cunt” (24/02/23; T 433-436).

Evidence of witnesses as to conversations with Mr Bouwens after incident

229. Various witnesses gave evidence of conversations with Mr Bouwens after the incident about the events of 23 January 2021 (most of this evidence being adduced before Mr Bouwens gave evidence). The trial judge directed that the evidence provided by Ms Cantwell (see below) as to what Mr Bouwens said to her was evidence of what he said but was not evidence of the truth of what he said and was relevant only to his credit (22/02/23; T 272). Similar directions were specifically made for each of Jamie Walsh (23/02/23; T 348), Michelle Alcorn (23/02/23; T 371) and Kim Bouwens (24/02/23; T 442), but not Nicholas Hector, Shane Neilson or Tanisha Bouwens. However, as noted above, the trial judge gave a general direction as to the evidence of the applicants various accounts of the event to others at SU 41. The evidence of those witnesses can be summarised as follows.

Nicholas Hector

230. Mr Hector knew the applicant and Mr Bouwens and had been out with them at the Commercial Hotel on the morning of 23 January 2021. At 7:52am on 23 January 2021, Mr Hector spoke to Mr Bouwens on the phone. Mr Bouwens said something along the lines that he had been at the police station since 4:00am and “I found a dead guy’’ (23/02/23; T 321-327).

231. Mr Hector said Mr Bouwens seemed “rattled”. He said that after this call he tried to call the applicant to see if he wanted to “get on the beers”. He agreed that in his police statement he had said “I called [the applicant] to see if he wanted to get together and back on the beers, and also to make sure he was okay after what Corey had told me”. At the trial, Mr Hector was not able to explain the connection between what Mr Bouwens told him and the applicant (23/02/23; T 344). In cross-examination, he said he did not recall exactly what Mr Bouwens said in their call because he was still very intoxicated at that point. He said it was along the lines of “I found a dead guy” but he could not remember exactly (23/02/23; T 325-326).

Jamie Walsh

232. Mr Walsh was the owner of Tyreright in Forbes, where the applicant worked. He knew Mr Bouwens for couple of months through the applicant as the applicant’s housemate (23/02/23; T 345-346).

233. At about 5:00pm on 23 January 2021, Mr Bouwens spoke to Mr Walsh in Mr Walsh’s front yard after Mr Bouwens had made his second police statement (23/02/23; T 346).

234. Mr Bouwens said he had just come back from the police station giving a second statement about what happened; that Ms Doolan had let the deceased (“this bloke”) stay with her, and the applicant found out that he was a convicted paedophile from the South Coast”; that Ms Doolan was a friend of the bloke’s sister; and that “we couldn’t stop him” or “we tried to stop him” (23/02/23; T 346).

235. On 25 January 2021, Mr Walsh made a police statement, including about that conversation (23/02/23; T 349). In that statement, Mr Walsh said he was sure that, at the start of the conversation, Mr Bouwens indicated that all three (the applicant, Mr Bouwens and Mr Radburn) went up to the Johnson Street house together (23/02/23; T 347; T 352). Mr Walsh said that Mr Bouwens said “Brendan charged up to his mother’s house and bashed on the door”; and did not say anything about the power being switched off at the house (23/02/23; T 350).

236. Mr Walsh said Mr Bouwens told him that “they had stormed up there and Brendan had knocked on the door to tell this guy to get out of his mother’s house. The guy started to leave…and Brendan started to assault this guy. Punching, kicking kneeing and then proceeding to jump on this guy’s head” (23/02/23; T 346). He was asked “did he say what position this guy was in when he jumped on his head?” and said “he must have been on the ground cause he indicated that Brendan had used a car bonnet and a…otto bin I think it was, to lever himself up in the air” and that the guy was “asking to leave and for help” (23/02/23; T 347).

237. He said Mr Bouwens told him he had “tried to step in to help stop Brendan and…Brendan got aggressive with him and tried to swing at him and missed,” saying they couldn’t stop him”. Mr Bouwens also told him that he tried to “convince” the applicant by saying “You’ve got kids to think about and a family” and the applicant had replied “I don’t care, he’s a paedophile” (23/02/23; T 347).

238. Mr Walsh said that Mr Bouwens told him that Mr Radburn was there and Mr Walsh said he asked why Mr Radburn had not “knocked him out” and stopped him, because he knew he had the reputation of an “ex footy player”. Mr Walsh said that Mr Bouwens said that Mr Radburn was on the phone to the ambulance; and that the applicant had pointed at Mr Radburn and said “you’re next cunt” (23/02/23; T 347).

239. Mr Walsh was cross-examined on aspects of what Mr Bouwens had told him, including that Mr Bouwens had not told him anything about switching off the power (23/02/23; T 350). Asked whether Mr Bouwens had said anything about his first police statement, Mr Walsh responded (23/02/23; T 354):

I believe it was along the lines of him and Ricky had tried to cover up a little bit, help Brendan. And then he had gone back to the police station to – he had a think or whatever it may be, he’d gone back to give this – pretty well the statement that he’d, you know, told me that – it was along the lines of the same statement he had told me.

240. Mr Walsh said that Mr Bouwens said that, after bashing on the door, the applicant *“*told this guy to get out of his mother’s place”, that the “bloke told Brendan that he would leave now and started to walk to his car” and that “when this bloke got outside, Brendan started attacking him” (23/02/23; T 350). Mr Walsh believed this was a few steps towards his car. Mr Walsh said that Mr Bouwens said “the bloke attempted to get to his car asking for help and advising … that he was trying to leave” (23/02/23; T 351).

241. Mr Walsh said that Mr Bouwens said “I tried to get Brendan to stop as he has three kids to think about Brendan ignored me and took a swing at me which missed” and the applicant said “I don’t care, he’s a paedophile” and that Mr Bouwens said “[t]he bloke was on the ground calling out for help and asking to leave while Brendan had one hand on the otto bin and one hand on the bonnet of the car, continued jumping on the bloke’s head with both feet” (23/02/23; T 351-352).

242. Mr Walsh said he asked Mr Bouwens “Why the fuck didn’t Ricky knock Brendan out, as he was meant to be this big footballer and tough man?” and Mr Bouwens said “He was on the phone to the ambulance. We couldn’t stop him. Even when he had finished jumping on his head, apparently dead, he turned and pointed at Ricky and said ‘You’re next cunt’” (23/02/23; T 352).

243. Mr Walsh said that Mr Bouwens said nothing to him about the applicant “coming back” (23/02/23; T 353).

Daniel Swanston

244. Mr Swanston gave evidence that on the evening of 23 January 2021 he saw Mr Bouwens at the Vandenberg Hotel in Forbes and he appeared shaken. Mr Bouwens said he witnessed a murder overnight and that it was “Brendan that had done it” (23/02/23; T 292). He said Mr Bouwens did not give any further details about what happened (23/02/23; T 300).

Jessica Alcorn

245. Jessica Alcorn (Mr Bouwens’ cousin) gave evidence that she received a Snapchat message from him one morning saying he had just witnessed a murder and was at the police station (23/02/23; T 355). She saw him later that night at the Vandenberg Hotel and he looked pale and did not say much (23/02/23; T 357).

Michelle Alcorn

246. Ms Alcorn (Mr Bouwens’ aunt and Jessica’s mother) knew the applicant as she was a customer of Tyreright (23/02/23; T 364-367). Ms Alcorn was staying in Forbes on the weekend of 23-24 January 2021. She spoke with Mr Bouwens at the Vandenburg Hotel on the evening of 23 January 2021 and made a statement on about 25 January 2021. Some of what Ms Alcorn said Mr Bouwens told her was “I can’t believe I saw Brendan jumping off the back of a car onto the man’s head”, “I picked the bloke’s phone and it was and it was covered in blood, so I wiped it on my shirt and put it in my pocket” he did not realise he had so much blood on him until he got to the police station and that “When I bent over him, he had a mouthful of blood. He coughed and it splattered all over me, then he died” (23/02/23; T 370-371).

247. She said Mr Bouwens was pale and seemed like he was in shock at the time. She said he did not provide any more details and she did not ask for any, because she assumed that Mr Bouwens had seen “something horrific” and she “was just going with the flow” (23/02/23; T 374).

Shane Neilson

248. Mr Neilson (the applicant’s cousin) said he spoke to Mr Bouwens at Forbes KFC just after 3:00pm on 24 January 2021 (23/02/23; T 355):

I asked him what happened and he told me that Brendan had lost it, and he couldn’t stop him. And I asked, “How could you not stop him?” And he said, “Oh, he was just in a fit of rage.” And then he told me that Ricky Radburn was there, and I said “Surely two of youse could have stopped him if that’s the case.” And he said “No, we couldn’t.” And I said to him, “Look at the size of Ricky. Surely you could have stopped him.” I said, “You could have tackled him if” – you know, I just didn’t believe that that’s what – what happened there. And then I asked him, “Did you go into the house?”

…And Corey replied, “No, we didn’t. We turned the power off to lure him out”.

249. Asked whether Mr Bouwens told him anything about the man who had been killed, Mr Neilson said that he had heard rumours and so he asked Mr Bouwens “is it true that he had slept with a young girl?” or a 15-year-old girl and that Mr Bouwens had replied “No. She was only 12”. Mr Neilsen said he felt he was not getting the truth from Mr Bouwens and that he said he could not eat or drink but was holding a bag of KFC (23/02/23; T 255). He was not cross-examined.

250. I note that Ms Doolan was cross-examined on a conversation she had with Mr Neilsen sometime after 23 January 2021. She said she remembered talking to him, and she thought that at one stage the conversation was about the power being turned off. Her evidence was to the effect that Mr Neilsen had a conversation with Mr Bouwens at KFC in which Mr Bouwens said that he had turned the power off and “that he wanted to lure him out” (21/02/23; T 80).

Georgia Cantwell

251. Ms Cantwell (Mr Hector’s then partner and a friend of the applicant through whom she knew Mr Bouwens) was in the group that went out on the night of 22-23 January 2021 (23/02/23; T 256-258).

252. Ms Cantwell gave evidence that around a week after the murder Mr Bouwens and his sister (Tanisha) came to her house to pick up a speaker that Ms Bouwens had left there (on 31 January 2021) (23/02/23; T 256). That evening and maybe early the next morning, Ms Cantwell made notes of what Mr Bouwens said to her. On 29 March 2021, Ms Cantwell made a police statement about what was said (23/02/23; T 265).

253. Ms Cantwell’s evidence of that conversation, included the statement by Mr Bouwens that “Brendan didn’t tell him anything apart from he overheard him yelling on [the] phone at Trina one day for him being in the house” and that the applicant “should just plead guilty” (22/02/23; T 266) so that he (Mr Bouwens) would be “left out of it” and could claim money from the government for counselling (22/02/23; T 260). Ms Cantwell was taken to her note of the conversation in her phone (MFI 15), which said in part “Corey thinks Brendo doesn’t know if he pleads guilty case over”. Ms Cantwell had said in her police statement “When Corey said this, he was saying that, if Brendan pleads guilty to the matter, then the investigation is over and excluded him”. Ms Cantwell could not recall if Mr Bouwens actually used those words but said he used the words “then the investigation is over” (22/02/23; T 266-267).

254. Ms Cantwell said that Mr Bouwens said they were “walking home” and he “didn’t know” there had been a fight inside cause he was “out the front calling Ricky” and that Mr Bouwens did not answer when Tanisha Bouwens said “weren’t you out the back?” (22/02/23; T 267). Ms Cantwell also said that Mr Bouwens said he himself was on phone to ambulance officers, who asked him to do CPR (22/02/23; T 268); and that “The guy was a convicted paedo living in Trina’s house close to a school” (22/02/23; T 271).

255. Asked whether Mr Bouwens said anything about the man who died. Ms Cantwell said “that they – that he ‘knew’ him” (22/02/23; T 261); and that she made a note of this because it made her feel “uncomfortable”. In cross-examination Ms Cantwell said she felt uncomfortable because of the way Mr Bouwens was speaking and his body language (22/02/23; T 264). Ms Cantwell agreed that she told police that she thought Mr Bouwens was lying at the time of their conversation (22/02/23; T 265).

256. Ms Cantwell was cross-examined on various other aspects of her note on her phone, including that Mr Bouwens had asked her if she saw the applicant’s hands the morning after the incident, that “He doesn’t think Brendo knew he killed the guy” and that Mr Bouwens had said that the applicant was in a rage and “it wasn’t him” (22/02/23; T 269-270).

257. Mr Bouwens’ evidence was that he remembered going to Ms Cantwell’s house with Tanisha Bouwens but not any conversation with Ms Cantwell about what happened (28/02/23; T 632-633). Tanisha Bouwens’ evidence was that she went to a house but effectively denied that Mr Bouwens spoke about what happened (24/02/23; T 404-405).

Tanisha Bouwens

258. Tanisha Bouwens (Mr Bouwens’ sister) said she grew up with the applicant, so knew him for probably about ten years (23/02/23; T 377). Tanisha said that on the morning of 23 January 2021 her mother received a call from Mr Bouwens which made her “panicked”. She said that a few days later herself, her mother, another brother and her father travelled to Forbes and took Mr Bouwens to his father’s place in Goulburn. She was asked whether Mr Bouwens told her what was going on and said “Not really, no. Not straight up” but that at some point he said “How can a best mate do something like this?”; that he had witnessed a murder; and that his “best mate bashed someone”. She could not remember any other details (23/02/23; T 377).

259. Tanisha Bouwens said that the first time she spoke to Mr Bouwens about what happened was at the end of March 2021 (23/02/23; T 378; 24/02/23; T 400). In cross-examination, she was taken to the details of conversations she said she had with Mr Bouwens in her 8 April 2021 police statement including that Mr Bouwens and the applicant had started walking home from the pub and the applicant decided to pick up his swag from his mother’s place, and that he had told her (23/02/23; T 382-383):

When we got to Brendan’s mum’s house, I waited out the front while Brendan went to the garage. It all happened so fast. I could hear yelling and ran to the back of the house. Brendan was at the power box turning off the power. All the lights went off at the house and the guy came out of the house. I didn’t know what to do. Brendan was throwing punches, yelling and screaming.

…

The guy got away and went back inside the house to get his keys and stuff to get away from Brendan. I walked back out the front thinking that would be it, but Brendan and the other guy came running out the front door. There was more yelling, and Brendan was punching the other guy. The guy fell on the ground near his car, and Brendan started stomping on his head and kicking him. I could hear the guy struggling to breathe and went over to try and stop Brendan. That’s when I recognised the other guy was Brad.

…

I tried to push Brendan away and yelled at him to stop. But Brendan came at me and pushed me in the chest with his fists. I had to step back because there was no stopping him. I rang Ricky to get him to come down in case Brendan was going to go me. Brendan eventually stopped and ran off.

…

Ricky turned up and we rang triple-0. Brendan came back around that time and started kicking Brad again. We kept yelling at him to stop, but he wouldn’t. When he did stop, he took off again.

260. Tanisha Bouwens said in her statement that Mr Bouwens was upset and “really teary” while telling her this (23/02/23; T 383). She said she vaguely remembered the above passages from her statement but that she could not remember anything beyond what she put in her statement (23/02/23; T 282-283). She denied having any earlier conversation with Mr Bouwens (23/02/23; T 383) and denied that her family had discussed their statements and what they would say (24/02/23; T 406). Mr Bouwens’ evidence was that he had no memory of this conversation. Mr Bouwens said he had obviously discussed the incident with Tanisha Bouwens but could not say when (28/02/23; T 631-632).

Kimberly Bouwens

261. A statement from Kimberly Bouwens (Mr Bouwens’ mother) was read onto the record. She said in the statement that one morning in January [2021] she received a call from Mr Bouwens who said “We seen someone belting a guy. When we yelled out, the guy ran” and that he thought the guy was dead. She said Mr Bouwens sounded upset and concerned. Later that day Mr Bouwens called her again and said the police were taking his phone, that he knew who did it and that “it was Brendan”. Mr Bouwens told her the deceased was “the guy staying with Trina” and “Loretta’s brother” (24/02/23; T 443).

262. Mrs Bouwens also said that when she later saw Mr Bouwens she asked him why he had lied and he said “It was Brendan. He was my mate. I thought I was doing the right thing” (24/02/23; T 443). He also told her:

…I can’t even remember going there to get the swag. I thought we were just walking past but then Brendan walked down the side and around the back. That’s when I remembered the swag. Brendan then turned the lights off and waited for Brad to come out. I don’t know if he called him or what. Brendan was saying “you need to pack your shit and get out”. Brad was agreeing. Brendan started bashing Brad. I said to Brendan, “Stop it, he’s had enough. Let him go”.

I tried to stop him, but he pushed me in the chest. Brad and Brendan walked inside to get his stuff. I walked around the front and rang Borg [a nickname of Mr Radburn’s; 24/02/23; T 408] to come and help me, as I couldn’t stop Brendan. Before Borg had got there, Brendan and Brad walked outside, and it looked like Brad had been bashed inside the house. Brendan started bashing Brad again. He was jumping [on] him.

Brendan…dragged Brad towards the fence so he could jump on him again. Brendan got on the fence and jumped on Brad. Brendan then left. Ricky had showed up and we called the police. While we were on the phone to police, Brendan came back and jumped on Brad again. I tried to stop him, but he hit me again. He was jumping on his face. We tried to stop him, but couldn’t. He then ran off”.

Interaction with the applicant

263. Other than the accounts of Mr Bouwens and Mr Radburn there was no evidence from anyone that they saw the applicant between about 3:00am and 11:00am on 23 January 2021 (when Georgia Cantwell went to check on the applicant and found him asleep in his bed at his house). Ms Cantwell said she did not observe any injuries to the applicant’s face at that time (22/02/23; T 263). Another witness, Joseph Brooks, said he spoke to Ms Cantwell on the morning of 23 January about her going to “check on” the applicant. He said at about 9:15am Ms Cantwell called him and said “Brendo looks fine. He’s in bed, and his hands look fine” (23/02/23; T 331). In cross-examination, he agreed that he wrote in his statement that Ms Cantwell had said “He didn’t look worried and appeared fine. No. I don’t think he’s done it” (23/02/23; T 332).

Tendency evidence relating to Mr Bouwens

264. During Mr Bouwens’ cross-examination, the Crown read onto the record a Statement of Agreed Facts (Ex K), which (among other things) detailed an assault by Mr Bouwens on another man (Mr Bassett) at about 11:00pm on 11 August 2018 (28/02/23; T 640-642). This was relied on by the defence at the trial as tendency evidence.

265. The Agreed Facts described the incident as occurring when Mr Bouwens had consumed seven beers, was walking home and saw Mr Bassett. Mr Bouwens approached Mr Bassett and accused Mr Bassett of saying something about his mother, which was denied by Mr Bassett:

Corey Bouwens then came towards David Bassett and pushed him and then hit him in the face five or six times in the area of the eyes, nose and jaw.

David Bassett ran 10 metres up the road to get away from Corey Bouwens.

Corey Bouwens pulled a fold-out knife out and showed it to David Bassett and said ‘Shut up, do you want me to stab you’.

Corey Bouwens chased David Bassett and hit him two or three more times, causing David Bassett to fall to the ground.

Corey Bouwens kicked David Bassett in the stomach and chest area about four times while he was on the ground.

A female yelled at Corey Bouwens to leave David Bassett alone, and Corey Bouwens responded “no, I’m having too much fun.”

266. The Agreed Facts recorded that Mr Bouwens’ brother also punched Mr Bassett and that the victim was seriously injured. They also recorded that on 8 August 2019 in a Local Court hearing at Albion Park, Mr Bouwens gave sworn evidence about the incident to the effect that Mr Bassett was the aggressor and he hit Mr Bassett several times in self-defence, which was untrue. Mr Bouwens was not asked about this incident in his evidence at the trial.

267. The trial judge directed the jury that the defence relied upon this as evidence that Mr Bouwens has a tendency or tendencies to (28/02/23; T 643):

(1) … engage in violent assaults against male victims aged between 40 and 50 years of age by punching and kicking them, both while the victim is standing and while the victim is on the ground, or otherwise unable to defend himself either properly or at all,

(2) … engage in protracted violent assaults against male victims described in (1) above, including:

(a) following or pursuing and further assaulting a victim who has moved away or is trying to escape after an initial assault by Mr Bouwens;

(b) refusing to heed requests to stop engaging in violent conduct;

(3) … engage in violent assaults against male victims described in (1) while he – Corey Bouwens – is intoxicated.

(4) … engage in violent assaults against male victims described in para 1 above in circumstances where [there] is no, or alternatively, minimal provocation, and

(5) … enjoy or take pleasure in committing violent acts that I have read and as described in the notice.

268. Her Honour directed the jury that they must find those facts proven because they were agreed, and that they should then go on to consider whether from those agreed facts they could conclude that Mr Bouwens had the alleged tendencies (28/02/23; T 643).

269. The trial judge directed the jury that if they concluded that Mr Bouwens has such a tendency or tendencies, they could use the fact of that tendency in considering whether the prosecution established that the applicant, as opposed to anyone else, caused the deceased’s death (28/02/23; T 642-643).

270. The admission of tendency evidence was not opposed by the Crown (27/02/23; T 461). The applicant’s counsel submitted that the evidence was relevant to whether it was the accused and the accused alone who committed the offence (27/02/23; T 466).

Exhibit D - 000 call

271. The 000 call was made from Mr Bouwens’ phone (21/02/23; T 151-152). Mr Radburn spoke to the operator, at one point speaking to “Corey” to get his mobile number (Ex D; MFI 6, p 2).

272. Mr Radburn told the operator in effect that: he did not know the exact address where he was; he “just seen this fella getting bashed” and “I just stopped; I just stopped it all”; he was “just picking my mate up from the pub” and was driving him up the road to drop him off home; he looked over and saw a male in the driveway and “someone was just, yeah, flogging him”; as he pulled up “he just took off and gone”; he did not know where the “other fella went” but he could not stop him; and he thought that the man was dead. Mr Radburn said that he was stopping there “just in case the fella comes back”. Mr Radburn said that the deceased was not moving at all but he thought he was breathing; that he did not want to go up to him because he did not want to see “that shit”; and that there was a lot of bleeding. Mr Radburn said that the man was not responding. Mr Radburn said that he was there with his mate that he picked up from the pub. He said that the man was on his side. Mr Radburn said that he could not describe the attacker, saying that it was dark. Mr Radburn said that there was just one person there. He said that he was 50 metres from the injured man, standing at his car with his mate; that he had not been near and did not wish to approach the man.

273. The applicant emphasises that at no point in the call was anything said about the second man (i.e., the attacker) returning, jumping on the injured male again and saying “you’ll be next” or Mr Radburn saying “get off him”; nor could any of this be heard in the background. Nor does the transcript of the call indicate that Mr Radburn tossed the phone to Mr Bouwens while still on the call or went for a drive (cf the statement Mr Radburn gave to police) (MFI 11 at [7]) (see also Mr Radburn’s evidence at 21/02/23; T 152; T 168-169). The applicant accepts that at times there were some periods (which the applicant says were short) between Mr Radburn and the operator speaking, the applicant says that there were no extended quiet periods during which any of this could have happened.

274. The police and ambulance arrived about 11 minutes 30 seconds into the 000 call.

Cause of death

275. As adverted to earlier, evidence was called from Dr du Toit-Prinsloo who performed a post-mortem on 27 January 2021 and who concluded that the cause of death was blunt force head injury. There was an extensive diffuse subarachnoid haemorrhage and an intraventricular haemorrhage. The deceased had a fractured nose, fractures around the eye and cheekbones, a further diffuse subaponeurotic haemorrhage, being a haemorrhage on the inside of the skull and blunt force injuries to the backs of his forearms. The latter were consistent with defensive injuries. She described further areas of bruising to the brain and bruising to the eyes and face (01/03/23; T 725-727).

276. Dr du Toit-Prinsloo could not say how many blows caused the head injuries nor what exactly caused the blunt force injuries (01/03/23; T 728). In cross-examination, she confirmed that the injuries could be caused by punching, kicking, a knee, a stomp or use of an object. She said that any part of the head injuries she observed could individually or in combination cause death (01/03/23; T 736).

Police and crime scene evidence

277. Evidence was called from Constable Hugh Moore and Senior Constable Natalie Rolfe who responded to the 000 call at about 4:00am on 23 January 2021. Constable Moore gave evidence that the deceased’s body was at the rear of the deceased’s Toyota Camry in the driveway, laying across the driveway. Exhibit L was a diagram showing the location. Constable Moore moved the body at the scene because he did not think there was room to perform CPR where it was located because of the position of the deceased’s car near the body and the amount of blood in the area. Near the body was a cap, a set of car keys and a box of groceries. Constable Moore unsuccessfully performed CPR (28/02/23; T 654). An attending paramedic (Matthew White) gave evidence that the deceased was already dead when they arrived and had lost about 500ml of blood from his head. He was bleeding internally from his right ear (01/03/23; T 684-685).

278. Constable Moore said that Mr Bouwens approached him and said “this is a phone I found here too” and “sorry about that, just had it in the car” (28/02/23; T 656). He pointed to a spot on the grass where he said he found it. Constable Moore said that Mr Bouwens and Mr Radburn appeared to be in shock (28/02/23; T 666). Senior Constable Rolfe said that Mr Radburn told her at the scene he saw a “fella all in black running that way”, pointing to Johnson Street North, and that Mr Bouwens appeared “standoffish” in his demeanour, but she did not have a long conversation with him (28/02/23; T 675).

279. Senior Constable Maggie Townsend gave evidence that on 23 January 2021 at about 8:00am she attended Mr Radburn’s address and directed he and Mr Bouwens to attend the Forbes Police Station. Once there, she observed blood on Mr Bouwens’ shirt and shirts. She asked whether they were the clothes he was wearing the previous night which he confirmed (01/03/23; T 695-696). Senior Constable Townsend asked if he had touched the body of the deceased, which he denied. Senior Constable Townsend described Mr Bouwens as “not very direct or forthcoming when answering questions” while she was taking the statement (01/03/23; T 699). In cross-examination, SC Townsend said that she thought Mr Bouwens and Mr Radburn attended the station separately on the morning of 23 January 2021 because they had to press an intercom to be let in, and she recalled them doing so separately. She did not see how they arrived or left. She did not seize Mr Bouwens’ moonboot (01/03/23; T 703-705).

280. Senior Constable Townsend said that at about 1:00pm on the same day she became aware that Mr Bouwens and Mr Radburn had returned to Forbes Police Station and wanted to speak to a detective (01/03/23; T 697). Ricky Radburn Sr was also present. She said the three of them “all looked extremely distressed”. Mr Radburn said that he had lied in the first statement and that he “knew who the murderer was” and identified the applicant by name (01/03/23; T 699-700). Mr Radburn said he had lied earlier because he did not want to get the applicant into trouble (01/03/23; T 700). The applicant was arrested at 8:35pm that night (01/03/23; T 702).

281. Sergeant Sarah Walker, the Crime Scene Examiner, gave evidence that she and a team of investigators examined the inside and outside of the Johnson Street house as well as the applicant’s house across 23-24 January 2021 (01/03/23; T 746-749).

282. At the crime scene, Sgt Walker observed blood stain on the “off side” of the deceased’s vehicle, concentrated on the rear door and three “wheelie style bins” along the fence in the front of the garage (01/03/23; T 749). She said there was a large amount of apparent blood stain on the rear patio verandah area at the premises and blood stains inside the premises (01/03/23; T 749), including on the kitchen floor, fridge, bathroom, hall alcove wall and second bathroom (01/03/23; T 754). In the second bedroom there was apparent blood stain on the front of a chest of drawers (01/03/23; T 754-755). Sgt Walker observed that the deceased had blood stains to his face, arms and down the legs from his groin to the top of his feet (01/03/23; T 751). She said the tracksuit pants he was wearing were relatively clean, indicating that blood was shed before they were worn (01/03/23; T 751-752).

283. Sgt Walker took swabs from the switchboard or power box on the back wall of the house. She described it as having a “main control light power” switch which she tested and found to be capable of turning off and on the power in the house (01/03/23; T 762). She took fingerprints from the exterior of the deceased’s car (02/03/23; T 793), and described other areas where fingerprints were taken.

284. The crime scene photographs at Ex R show the areas of bloodstaining described by Sgt Walker as well as the objects located around the deceased’s car including keys, a cap and a box of groceries. The Crown points out that these objects are consistent with him attempting to leave at the time he was murdered. The photographs also show significant blood spatter underneath the railing at the back stairs (Ex R, p 71). Sgt Walker said there was apparent bloodstaining up the handrail and on the handrail as well (02/03/23; T 799). There was also apparent blood stain on the top of the rear step (Ex R, p 73) (02/03/23; T 800). Sgt Walker said (bare) footprints were identified in the house but there was not enough detail in them to match them to anybody (02/03/23; T 802). The blood on Mr Bouwens’ clothing was also shown in the crime scene photographs (Ex R, pp 160-164).

285. At the applicant’s house (examined on the morning of Sunday 24 January), Sgt Walker located two damp towels in a washing hamper within the bathroom. One had a visible stain which returned a presumptive positive result for the presence of blood. She observed that the lid of the washing machine was up and the lights were illuminated. The machine was full of damp clothes and a towel. The items of clothing in the machine included a grey cap, a khaki t-shirt, two pairs of NRL Bulldogs shorts and a towel, as well as a black uniform, another cap, shark shorts and underwear. She did not identify blood elsewhere in the house (01/03/23; T 758). Sgt Walker seized two pairs of thongs from the applicant’s house (02/03/23; T 805). She seized some, but not all of the clothes from the washing machine (02/03/23; T 807). She performed tests on areas of red/brown staining on the blue Bulldogs shorts and they were negative (02/03/23; T 808). There were no further tests performed on the clothes, though it would have been possible (02/03/23; T 864-866).

286. The Crown notes that key aspects of Sgt Walker’s evidence and the results of fingerprint and DNA testing by Detective Leading Senior Constable Ward and Virgina Friedman of the Forensic and Analytical Science Service were summarised in Ex Z; and that this evidence was not contentious, save for disputes as to how certain DNA may have come to be in different locations.

287. DNA testing of blood from various locations at the crime scene was consistent with it being the deceased’s blood; a palm print on the front nearside panel of the Toyota Camry was identified as belonging to Mr Bouwens (result 11); trace DNA on the external handle of the rear screen door was found to contain a mixture of DNA from at least two individuals. The applicant and the deceased could not be excluded as contributors to the mixture. Assuming there were two contributors to the mixture, it was considered greater than 100 billion times more likely to obtain the mixed profile if it originated from the applicant and the deceased as opposed to two unknown, unrelated individuals (result 19).

288. There were bloodstains on each of a pair of black thongs seized from the front of the applicant’s house. DNA testing of swabs from various locations on the thongs was consistent with the blood being the deceased’s (results 20-22). The applicant could not be excluded as the major contributor to a mixture of DNA from a swab taken of the power box at the Johnson Street house. Assuming there were two contributors to the mixture, it was considered greater than 100 billion times more likely that the profile would be obtained from the applicant and another unknown individual than two unknown, unrelated individuals (result 24).

289. DNA from swabs taken of Mr Bouwens’ clothing and his moonboot was consistent with being the deceased’s (results 29, 30 and 32). The applicant could not be excluded as a contributor to two swabs from bloodstains on Mr Bouwens’ shirt (result 29). The deceased’s blood was found in a swab of blood taken from the handle of a wheelie bin in the driveway (result 13).

290. Detective Leading Senior Constable Ward gave evidence that there was insufficient detail to reach an identification of the source of a right palm print on the rear of the vehicle but that “the information that is present lends support to it being the right palm of Brendan Doolan” (03/03/23; T 896).

Forensic evidence

291. The police seized Mr Bouwens’ clothes on 23 January 2021. The police did not seize the moonboot until 8 April 2021 (it was examined and sampled on 17 May 2022) (02/03/23; T 850; T 875; 06/03/23). The applicant submits that there was no reason for the delay in examination of the moonboot (although notes that the Officer in Charge, DSC Payne, in his evidence, gave a reason for not seizing the moonboot earlier, namely that that there was a period of telephone interception on Mr Bouwens from 18 February to 8 April 2021; 06/03/23; T 1054-1055; T 1060-1063).

292. The police also seized Mr Bouwens’ “Rocko’s” brand thong at some stage. The applicant says that it was assumed at trial that it was the thong Mr Bouwens was wearing on the night of 22-23 January 2021. Mr Bouwens’ cap was never found or seized (06/03/23; T 1055).

293. The applicant notes that the police did not search or undertake any examination of Mr Radburn’s house or Ms Jones’ car and says that there was no reason for this (06/03/23; T 1061-1062).

Blood pattern analysis

294. Detective Terrence Flippence was called by the prosecution and Jae Gerhard was called by the defence to give concurrent expert evidence about blood staining including on Mr Bouwens’ clothes and footwear. The items in question were his blue shirt, tan shorts, right thong and moonboot. Blood pattern analysis was also carried out on the applicant’s thongs seized at his Farnell Street house.

295. By way of explanation as to their findings, the expert witnesses agreed that: “spatter” is the travel of blood droplets through an area as a result of force or energy greater than gravity (06/03/23; T 952-953); the higher the energy that goes into causing the blood to project through the air, the smaller the stains will be (06/03/23; T 965-967); “projected” stains are where the blood is projected through the air, from force, and lands on an object, and, when the blood lands, it leaves a tail in the direction of travel, so pointing away from the direction in which it came (06/03/23; T 973-974); “expirated” blood is that which occurs as a result of breathing out, causing small droplets to project through the air and land on a surface (06/03/23; T 957); and “transfer” or “contact” staining is when blood is physically transferred onto a surface via a wipe or some sort of contact (06/03/23; T 956).

296. The findings in relation to the respective items may be summarised as follows.

Mr Bouwens’ blue shirt

297. Swatches were taken of apparent reddish stains on Mr Bouwens’ blue shirt. Forensic testing showed: the deceased’s DNA on the lower front and front left upper shoulder; DNA of both the deceased and the applicant on the right front pocket; and DNA of the deceased’s and possibly the applicant’s DNA on the right sleeve below the cuff (Ex R pp 159-162) (Ex Z result 29).

298. The experts described three distinct areas of blood staining the front of Mr Bouwens’ shirt which were marked in photograph 19 in Ex V. Detective Flippence considered the bottom of the shirt to have an area of numerous small projected blood stains of about 1mm diameter or potentially smaller in some instances. He considered the stains could have been spatter or expirated. Ms Gerhard did not consider it a typical expirated pattern but did not discount it as a possibility. The witnesses agreed that the energy used to cause those stains to project through air was quite or fairly high, and that the blood would have travelled a maximum of about 2-2.5 metres (06/03/23; T 999; T 1002-1005; T 1008-1009).

299. The stains identified were as follows.

300. The first stain (marked “1”) was at the bottom of the shirt in the middle. Detective Flippence considered that this “appears to be a projected blood stain” (i.e., a stain that is the result of a projection through the air landing on an object). Ms Gerhard would not necessarily have classified stain 1 as a projected stain, just a blood stain “that this portion of the shirt has had some contact with wet blood” (06/03/23; T 999-1000).

301. The second stain (marked “2”) was on the front pocket of the shirt (of about 6x7cm). Detective Flippence said it was a “contact stain swat [sic] or a wipe” and that it could have been consistent with the wearer of the shirt being punched or pushed by someone with a blood-stained hand or other object. The most Detective Flippence could conclude was that there was a transfer of wet blood without being able to say precisely how it was caused. He could not give an opinion on force or direction. Ms Gerhard agreed that this was a contact stain and said that the stain had very little movement in it, suggesting direct contact with little movement between the items. Ms Gerhard would not go so far as to comment on what object caused it (06/03/23; T 1000-1002; T 1031-1032).

302. The third stain (marked “3”) was towards the top left shoulder of the shirt. Detective Flippence said that this was a contact stain. Ms Gerhard agreed. Neither could say whether there was movement in it (06/03/23; T 1000-1002).

303. Both experts agreed there were also areas of projected stains around the same areas as marker “1” (in the large oval on Ex V). Detective Flippence said these could be spatter or expiration. Ms Gerhard said the pattern was not a typical expirated pattern where there would be variation in the sizes of the blood stains but she could not discount that possibility (06/03/23; T 1003) (see Ex V, photographs 19-24).

304. On the back of the shirt were two areas of staining (Ex V, photographs 25-27), one on either sleeve. Detective Flippence described one as a very small transfer stain (marked “4”) and the other as a larger stain made of three or four areas of transfer but “very small” (marked “5”) (06/03/23; T 1004-1005).

305. Detective Flippence agreed with the proposition that some of the smaller bloodstains were consistent with “the projection of blood with a higher degree of energy than what would be expected from something such as dripping”. Asked whether he was able to say with any certainty the degree of force that would have been required to propel such small bloodstains, Detective Flippence said that “the mechanism used to disperse those stains would have been fairly high because of the – the small size of the stain. Also, I might add the small size of the stain means it doesn’t travel that far, so a maximum of about 2-2.5 metres” (06/03/23; T 1008).

306. The witnesses agreed that something other than visual examination (which is what the police did) may have identified even smaller stains and potentially provided further information on whether the projected stains may have been expirated (06/03/23; T 1005-1009; T 1028). They agreed that, in an ideal investigation of the shirt, it would have been appropriate to do more than a visual examination and that other methods were available (06/03/23; T 1009; T 1027).

Mr Bouwens’ tan shorts

307. Swatches were taken of apparent reddish stains on the shorts (02/03/23; T 822-823). Forensic testing of the swatches taken from the front left leg, front right leg and the left side crotch showed the deceased’s DNA (Ex Z, result 30).

308. The experts identified small areas of projected staining, of around 1 millimetre or smaller (06/03/23; T 1009-1010; T 1019), on the front right leg of the shorts (some, at markers 3 and 4, were spattered staining, generally around one millimetre but a couple were 2 millimetres); as well as contact stains in the crotch area and on the left-hand side of the shorts (Ex V, photograph 28). At markers 5 and 6 on the left and right crotch were larger contact stains, with small spatter around them (06/03/23; T 1010; T 1019). The witnesses considered that, given the location of these stains, it was possible they were spatter but ended up looking like transfer stains through contact with a surface (06/03/23; T 1028). The front left leg had three projected or spatter stains, about a millimetre each (06/03/23; T 1010; T 1019). Both experts accepted the contact stains could also have been the result of spatter that ended up looking like a transfer stain by reason of contact with some other surface (06/03/23; T 1028) (see Ex V, photographs 45-47).

309. Again, the witnesses agreed that further examination than just visual was available. The witnesses agreed that this could have been used potentially to identify further blood staining on the shorts (06/03/23; T 1022; T1027-28; T 1032-1033).

Rocko’s right thong

310. There were a number of small red stains on the thong: a stain (marker 1) that was a projected stain on the edge but near the top of the thong; two stains (marker 2) that were two projected stains near the edge of the toe area; and at marker 3, on the side of the thong, two areas of blood staining which were difficult to classify (06/03/23; T 1010-1011; T 1020; T 1024-1025) (see Ex V, photographs 29-33).

311. Detective Flippence considered that the thong may have been worn during the blood-shedding events at the Johnson Street house. Ms Gerhard said it was the projected staining on the surface of the thongs which indicated they had been in close proximity to a blood-shedding event (06/03/23; T 1020-1021).

312. Again, the thong was only subjected to a visual examination, although other methods of examination were available to identify blood on it. The applicant says that ordinary police practice dictated a far more rigorous examination of the thong. The applicant contends that, having regard to the partly black porous surface of the thong, there was real scope for blood to have been hidden on the visual inspection (06/03/23; T 1023-1026; T 1032).

Moonboot

313. The moonboot, which (as noted above) was not seized until 8 April 2021, had a number of small stains on it. A stain on the front left-hand side foot padding was positive for human blood. It seems that some stains were too small to do confirmatory blood testing. A number of swabs were taken, including of stains which were negative for human blood (02/03/23; T 851; T 867-869; 06/03/23; T 1011-1012). Forensic testing of the swabs showed the deceased’s DNA (Ex Z, result 32). The moonboot weighed more than 1.3kg (Ex R, p 166) (see Ex V, photographs 34-35).

314. Detective Flippence was unable to see blood staining on the moonboot (in the photographs he examined). He accepted that there was blood on the boot, having regard to the evidence of others, but said the moonboot was not collected for two months after the incident so there was an issue as to accountability and a lack of continuity that led him to refrain from giving that blood any weight (06/03/23; T 1021; T 1026-1027). (Pausing here, it is not clear that there is any evidence as to whether or how long after the events on 23 January 2021 Mr Bouwens in fact wore the moonboot; AT 35-36.) Detective Flippence considered the moonboot could have been affected by environmental factors, so it was difficult to make an assessment of blood on it at the time of the incident (06/03/23; T 1021; T 1026-1027). Ms Gerhard did not discount the evidentiary value of the moonboot but said it needed to be approached with caution. Ms Gerhard said that it was not uncommon for there to be a passage of time before items were tested but that there had not been sufficient examination of the moonboot (06/03/23; T 1027). Detective Flippence did not demur from that proposition (06/03/23; T 1032-1033).

Conclusion of experts as to blood analysis

315. Detective Flippence’s evidence, assuming Mr Bouwens wore the blue shirt, tan shorts and Rocko’s thong in the early hours of 23 January 2021, was that Mr Bouwens (06/03/23; T 1021):

… must have been reasonably close to the disbursal of blood at some point in the – the event where blood has disbursed in the scene. My problem with it is the blood around the back door just outside that area isn’t conducive with the blood he has on his – on his clothing. I’d expect more blood on his clothing if he was close to that area at the time that blood was disbursed.

316. Detective Flippence said that “the two don’t match up”, referring to the “abundance of bloodstaining in the scene” (referring to the back patio) and the “small spatter” (06/03/23; T 1021). (The Crown submits that it follows that Detective Flippence’s evidence was not consistent with Mr Bouwens being the perpetrator of the attacks that caused that bloodstaining at the scene.) Detective Flippence acknowledged that attackers sometimes do not get much blood on them (06/03/23; T 1021). His evidence was to the effect that blood distribution is highly variable and the environment dynamic, so accurate predictions about how much blood would be on a person or attacker could not be made (06/03/23; T 1031). That said, Detective Flippence's evidence was that he would have expected more blood if Mr Bouwens were close to the abundant disbursal of blood on the back patio (06/03/23; T 1021; T 1031).

317. Ms Gerhard said she did not necessarily agree with this because she was not confident that all of the bloodstaining present on the clothing had been identified, and said that the situation was a dynamic one involving a prolonged altercation. Ms Gerhard said that she had observed offenders with very little blood staining present on their clothing on some occasions, some with an enormous amount and every range in between (06/03/23; T 1022). Detective Flippence said that any further testing would detect only smaller staining not larger areas of staining. Ms Gerhard said in relation to this that “the basic principle applies that the greater the force or the greater energy that is applied to blood, the smaller the blood drops will get” (06/03/23; T 1023).

Forensic testing in relation to applicant’s DNA/blood analysis

318. DNA from the applicant and the deceased was recovered from a trace DNA sample taken from the external handle of the rear screen door at the Johnson Street house (Ex Z, result 19). DNA from the applicant and at least one other person was recovered from the main power switch on the power board (Ex Z, result 24). (The applicant emphasises that it was his mother’s house and the deceased was staying there.)

319. When crime scene police attended the applicant’s Farnell Street house in the morning on 24 January 2021, there was a pile of seven thongs on the front landing. The police seized two sets of black thongs with blue trim and straps as they appeared to be the thongs the applicant was wearing in CCTV the night before (01/03/23; T 752; T 756-757; 02/03/23; T 804-805). Of the seized thongs, the police examined in particular a left and a right thong positioned next to each other, “sort of on top”, on the front landing, on which there were some small reddish marks (02/03/23; T 804-805; T 845-848; T 861-862; T 869-870; Ex R, pp 188-192; Ex V, photograph 36-43).

320. Forensic testing of the left thong showed: the deceased’s DNA on a swab of bloodstain on the strap; the deceased and at least one other person’s DNA on a trace DNA tape-lift of a toe strap; and the deceased’s DNA on swabs of bloodstain on the outer sole and underside of the strap (Ex Z, result 21). Detective Flippence said it was hard to classify the stain types because of the large size of the weave; and Ms Gerhard agreed (06/03/23; T 1012-1013). The applicant’s DNA was not specifically identified on the samples taken from the thongs.

321. Forensic testing of the right thong showed: the DNA of the deceased and at least one other person on a swab of an apparent bloodstain on the strap; the deceased’s DNA on a swab of an apparent bloodstain on the underside of the strap; the DNA of the deceased and at least one other person on a trace DNA swab of the upper heel section; and the DNA of the deceased and at least one other person on a trace DNA tape-lift of the toe strap (Ex Z, result 20). As to the staining on the inner of the left strap of the right thong, Detective Flippence said it was difficult to identify because of its “non-distinct features” but said that it could have been caused by a blood-stained object rubbing the thong, such as if somebody had blood on their foot and put the thongs on (06/03/23; T 1014). Detective Flippence gave similar evidence as to the possible cause of the staining on the right strap of the same thong (06/03/23; T 1015).

322. Detective Flippence and Ms Gerhard doubted that these thongs were worn during the assault, as there did not seem to be any spatter on the top of the straps or on the top of the thongs (06/03/23; T 1020). They agreed that the most that could be said for the blood on the underside of the thong straps was that there had been some transfer of blood but it was impossible to say how it got there (06/03/23; T 1029).

Consciousness of Guilt

323. The prosecution relied on the evidence (of Mr Bouwens and Mr Radburn) that the applicant ran away from the Johnson Street house and was not there (unlike Mr Bouwens) when the police and ambulance officers arrived as evidence of consciousness of guilt. The trial judge directed the jury on this in the summing up (SU 33-34). No complaint is made as to the summing up on this issue.

324. In this context, the applicant refers to the evidence of Ms Cantwell to the effect that between 8:00am-10:00am on 23 January 2021 she visited the applicant’s house on Farnell Street and found the applicant sleeping; that she woke him up and told him there was *“*stuff happening” and” You need to call Corey”; and that the applicant said “okay” then went back to sleep (22/02/23; T 259; T 263). Ms Cantwell’s evidence was that the applicant looked sleepy but nothing was unusual about his demeanour (22/02/23; T 272).

325. The prosecution also relied as evidence of consciousness of guilt on the fact that, when the police attended the applicant’s house at 9:30am on 24 January 2021 (having arrested the applicant there at about 8:40pm on 23 January 2021 and having established a crime scene at the property at that time) (01/03/23; T 752; 02/03/23; T 854; 06/03/23; T 1035-1036), the washing machine appeared to have been on and was full of a damp towel and damp clothes, including a grey cap, khaki t-shirt with branding and two pairs of Bulldogs shorts (01/03/23; T 757-758). These were seized as again they appeared to be the clothes the applicant was wearing in the CCTV footage of the night before (02/03/23; T 806-809). Both forensic evidence experts agreed that it would have been possible to check the applicant’s clothing for blood after it had been washed. No such forensic examination of these clothes was performed (06/03/23; T 1029-1030). Other clothes in the washing machine were a second cap, black uniform tyre repair shirts, dark shorts and underwear (02/03/23; T 863-868).

Defence case

326. The defence case at trial was that there was an available inference that Mr Bouwens was involved in the deceased’s death, arising from his presence at the Johnson Street house; his admitted lies in his two police statements; his inability to explain his lies apart from being scared; and the spatters of the deceased’s blood on his clothing and footwear.

327. The trial judge directed the jury that the experience of the courts is that evidence given by a witness who may have been involved in the alleged crime may be unreliable; and that, for that reason, the jury must approach Mr Bouwens’ evidence with considerable caution (SU 36-37).

328. The defence case was that Mr Bouwens may have been motivated to lie because he was scared, to avoid police scrutiny of him and to minimise his own involvement and responsibility for an assault upon the deceased or his death. The trial judge directed the jury that if the jury considered such a motive or motives to lie were established, the jury would take that into account in assessing Mr Bouwens’ truthfulness. The trial judge also directed that the applicant did not have to prove a motive to lie, there may be unknown reasons why a person might lie, and even if the jury rejected the proposition that Mr Bouwens had a motive to lie, that did not necessarily mean he was truthful (SU 37-38). Again, there is no complaint as to the directions given by the trial judge.

Appeal Ground – unreasonable verdict

329. As already noted, there is a sole ground of appeal, that being that the verdict is unreasonable and not supported by the evidence. In oral submissions, this was based on the contention that the prosecution failed to exclude the reasonable possibility that Mr Bouwens had contributed at least one blow to the deceased’s head (the Crown case not being that there existed a joint criminal enterprise between Mr Bouwens and the applicant).

330. As explained above, the applicant relies on four matters as giving rise to the reasonable possibility that Mr Bouwens was involved in the fracas: the 000 call; Mr Bouwens’ lies; blood pattern analysis; and the tendency evidence.

Applicant’s submissions

000 call

331. The applicant emphasises the 000 call as the starting point for the assessment of the evidence given by Mr Bouwens and Mr Radburn, contending that their evidence about what took place during that call is patently false.

332. In this regard, the applicant says (and this is indeed the case having listened ourselves to the audio recording of the call) that nothing can be heard in the recording of the 000 call of any further assault of the deceased or interaction with Mr Radburn after the latter’s arrival and that nothing was said by him to the operator about this.

333. The applicant argues that, contrary to what one might expect had the applicant in fact returned and acted as Mr Radburn described, Mr Radburn was calm during the 000 call. Further, the applicant says that Mr Radburn’s evidence of going for a drive and calling out to the applicant (not supported by Mr Bouwens) is also something that was not reported nor heard during the recording. The applicant says that this would have involved some unlikely holding of the phone. (Pausing here, some support for the account that there was a calling out of someone’s name, albeit that there is doubt as to what name, is to be found in the accounts of both Mr Nelson and Ms Buchanan – as summarised earlier but this does not account for the lack of any sound of this during the 000 call itself.)

334. The applicant argues that the “story” of the applicant returning during the 000 call (which first appeared in Mr Radburn’s second statement on 23 January 2021) is the product of collusion between Mr Bouwens and Mr Radburn; and that the most likely explanation for this is so that Mr Radburn could corroborate Mr Bouwens’ account by saying that he too saw the applicant assaulting the deceased. The applicant notes that on Mr Walsh’s evidence, later on 23 January 2021 Mr Bouwens told Mr Walsh about the applicant jumping on the deceased and telling Mr Radburn he was next but not that the applicant came back to the scene.

335. The applicant submits that Mr Bouwens and Mr Radburn must have colluded to advance a fabricated story from as early as the 000 call, referring to the lies told by Mr Radburn in that call as to how they come to be at the scene and that (on their accounts) Mr Bouwens was physically close to Mr Radburn during that call but he did not interject to correct Mr Radburn. It is noted that, when the police arrived, Mr Bouwens continued the false version that the two just happened upon the incident.

336. The applicant says that the explanations given by Mr Bouwens and Mr Radburn for lying (shock and fear of the applicant) are unsatisfactory. The applicant submits that the more plausible explanation (or at least one that cannot be excluded) is that of protecting Mr Bouwens by distancing him from the scene (and, in particular, distancing him from the deceased and the applicant). The applicant argues that Mr Radburn’s assertions in the 000 call that they were 50 metres away from the injured man, had not approached him and did not wish to do so, are consistent with this.

337. The applicant argues that the collusion between the two continued into their first police statements, submitting that Mr Radburn acknowledged as much in his second statement by saying *“*I had a conversation with Corey and I told him what I was going to tell the cops” (22/02/23; T 205). The applicant says that Mr Bouwens’ evidence that the most he remembered of any conversation with Mr Radburn was about telling the truth must be false relying on the fact that they both not only lied in their first statements but advanced the same lies (to the effect that: Mr Bouwens had been staying with Mr Radburn; Mr Bouwens went out to the pub from Mr Radburn’s house; Mr Bouwens called to be picked up and they spoke over the phone; Mr Radburn picked Mr Bouwens up from the vicinity of the pool, which is near town; Mr Radburn pulled over because Mr Radburn saw the incident between two males; neither said they knew whose house it was; a man ran off in a westerly direction as Mr Radburn pulled up; and Mr Bouwens got out of the car and approached the male). It is noted that both Mr Bouwens and Mr Radburn purported to describe the male who ran off, but neither identified the applicant; nor did they identify the deceased.

338. The applicant submits that the lies in the first statements by each of Mr Bouwens and Mr Radburn (and their lies as to having done so) go beyond merely raising doubts about their credibility generally. The applicant argues that protection of at least Mr Bouwens, by distancing him, is an available if not obvious answer to the question as to why they were lying.

339. It is further submitted that there must have been some conversation between Mr Bouwens and Mr Radburn (or through Mr Radburn Snr) prior to the second statement since it was in their second statements that both first implicated the applicant.

Mr Bouwens’ lies

340. More generally, the applicant points to Mr Bouwens’ lies about other matters.

341. The applicant argues that Mr Bouwens’ disclaimer of much knowledge about or interest in the deceased is significant because the prosecution relied upon the applicant having a motive to assault the deceased (his supposedly being a paedophile). The applicant argues that the more Mr Bouwens knew about the deceased at the time of the assault, the more that motive can be transferred to him too.

342. The applicant also points to inconsistencies in the accounts made by Mr Bouwens to a number of people as to what took place. By way of example, the applicant notes that Mr Bouwens told (or intimated to) Mr Walsh that: Mr Radburn was with them at the house; the applicant bashed on the door; the assault occurred at the front of the house; the applicant’s attempt to hit Mr Bouwens missed; and the applicant used an Otto bin and car bonnet to stomp; that Mr Bouwens told Ms Alcorn that the applicant jumped off the back of the car onto the deceased’s head; that Mr Bouwens told Mr Neilsen about Mr Radburn being there and “we” turned the power off to lure him out; and that Mr Bouwens told Tanisha Bouwens that: he waited at the front while the applicant went to the garage; he heard yelling and ran to the back; and he recognised it was the deceased when he was being assaulted at the car. The applicant says that this is consistent with Mr Bouwens wishing to put a version forward to family and friends implicating the applicant and exculpating himself but being unable to keep the version together.

343. The applicant maintains that the notion that Mr Bouwens followed the applicant out the back of Trina Doolan’s house to get the swag (his account in the ERISP) is an unlikely explanation given that it was a large swag, it was several hundred metres from the applicant’s home, they were drunk, it was around 4:00am, and it could easily have been be collected in the car on the way to go camping.

344. As to the recorded interview (where Mr Bouwens claimed that his full recollection of the assault came back in dreams), the applicant says that Mr Bouwens’ attempt in evidence to clarify that he meant he was dreaming about what happened is unconvincing. It is submitted that, if Mr Bouwens’ recollection did come back in dreams or was affected by them, then it is unreliable; alternatively, that this was a “fictitious and fatuous way” to attempt to justify the false version previously given to the police. Either way, the applicant says that it contributes to the “dubious” state of Mr Bouwens’ evidence.

345. The applicant submits that there are questionable aspects of Mr Bouwens’ version of the circumstances of the assault: his various assertions about what happened with the power; the deceased having clothes on his bottom half at the back of the house (the expert evidence of Detective Flippence and Ms Gerhard being that the deceased sustained some of his injuries while he was not wearing any form of protection, in this case, his tracksuit pants; 06/03/23; T 998); that the deceased acknowledged the applicant at the back door but not him, although they knew one another too; and that the assault out the back happened in a very small space, with himself in close. The applicant notes that Detective Flippence considered that more blood would be expected on Mr Bouwens if he were close to the assault at the back of the house (see the submissions as to the blood analysis evidence below). The applicant argues that Mr Bouwens’ blue shirt did not have multiple contact stains which might have been expected had he been repeatedly pushed with bloody hands. Further, the applicant says that it is unlikely the applicant could have executed the levered stomps described by Mr Bouwens in the shrubby/treed space between the car and low fence. The applicant also points to Mr Bouwens’ evidence that he made two calls to Ms Jones, which is not supported by Ex F.

346. The applicant submits that there is also tension between the evidence of Mr Bouwens and Ms Jones and that Ms Jones’ evidence does not assist in acceptance of Mr Bouwens’ version. The applicant submits that there is an inconsistency between Mr Bouwens’ evidence at trial (that he called Ms Jones from the front while the applicant and the deceased were inside the house and he was still on the phone to her when they came out the front and the applicant continued to assault the deceased at the car) and his statement in the recorded interview that the applicant and the deceased were at the back or in the house and he could not see nor hear anything when on the phone to Ms Jones. It is noted that Mr Bouwens did not give evidence of Ms Jones asking to be put on the phone to the applicant but the applicant declining, as asserted by Ms Jones; and that Ms Jones gave evidence that Mr Bouwens said to her that the applicant had “come back” but Mr Bouwens and Mr Radburn said this was when Mr Radburn was on the 000 call.

347. The applicant argues that none of Mr Bouwens, Mr Radburn and Ms Jones can be trusted as to what Ms Jones was told afterwards of the assault upon the deceased.

348. Thus, the applicant submits that Mr Bouwens’ lies are sufficient to cast doubt on his denial that he was involved in any way in the assault upon the deceased; and that the obvious motivation for his lies is to conceal his own involvement.

Blood analysis

349. The applicant argues that the presence of the deceased’s blood on Mr Bouwens’ clothes and footwear contributes, at a minimum, to the reasonable possibility that Mr Bouwens was involved in the assault. The applicant says that this is especially so for the spatter (including high energy spatter) low on the front of Mr Bouwens’ clothes (on the bottom of the blue shirt, the tan shorts and the Rocko’s thong). The applicant points to the expert evidence to the effect that Mr Bouwens must have been reasonably close to the dispersal of blood to have caused the blood staining on his clothes. The applicant says that there is only Mr Bouwens’ evidence providing an alternative explanation for this (i.e., that it must have occurred when he was really close to the deceased, pushing the applicant away). The applicant also maintains that the forensic examination of these clothes was unsatisfactory.

Tendency evidence

350. The applicant relies on the tendency evidence as a further reason to doubt Mr Bouwens’ denials of involvement in the incident. The applicant says that it was another episode of Mr Bouwens, when drunk and with minimal justification, engaging in a protracted, vicious assault upon another man, including to his head and when he was on the ground. The applicant says that, although this was not seemingly relied upon at the trial as tendency evidence, Mr Bouwens then lied about this incident on oath (when that matter was in the Local Court).

Other matters

351. The applicant says that Ms Buchanan’s version is beset with difficulties but that, even if Ms Buchanan saw or heard something going on at the Johnson Street house, her evidence does not amount to evidence that the applicant assaulted the deceased, let alone by himself; and that her evidence does not exclude the involvement of Mr Bouwens.

352. The applicant emphasises DSC Nolan’s account of Ms Buchanan’s statement that she saw “two blokes” kicking the shit out of something on the ground (a version that Ms Buchanan, however, adamantly denied was said). Further, the applicant notes that Mr Angus heard separate voices saying “Come outside, you fucking dog” and” You got what you deserved, you dog. You got what you deserved” and that Ms Demamiel may have heard more than two voices. The applicant relies on these pieces of evidence as suggesting the involvement of more than one person assaulting the deceased.

353. As to the evidence relied upon by the prosecution as evincing a consciousness of guilt on the applicant's part, the applicant submits that this is unpersuasive. The applicant says that, while the applicant might not have stayed near his mother's house, he went home up the road to bed and was at home when Ms Cantwell visited in the morning and the police came to arrest him in the night (which they did at 8:40pm on 23 January 2021). The applicant says that this was hardly a sophisticated effort at flight. The applicant accepts that he washed the clothes he was in the night before, but submits that this could easily have been a routine wash since work clothes were in the wash too (and notes that the police could have, but did not, further examine these clothes). Further, the applicant notes that the thongs with the deceased's blood on them were just left on front patio. Insofar as Detective Flippence and Ms Gerhard doubted the thongs were worn during the assault, the applicant submits that this would seemingly mean that he would have to have engaged in the protracted assault, as described by Mr Bouwens, barefoot.

Crown submissions

354. The Crown says that there was no dispute at the trial that Mr Bouwens had told lies on multiple occasions as to the events on the morning of 23 January 2021, particularly in his first and second police statements; and the Crown accepts that the only other possible eyewitness to the applicant being at the scene (Mr Radburn) had also lied to police about the incident.

355. However, the Crown contends that the jury was entitled to accept the key aspects Mr Bouwens’ evidence at the trial notwithstanding that he had undoubtedly told lies at different points in time. The Crown emphasises the significant advantage the jury had in being able to see and hear Mr Bouwens’ evidence at the trial and form its own assessment of his credibility (a matter that is fundamentally within the province of the jury) and points out that the jury was entitled to accept some parts of his evidence even if the jury rejected other parts.

356. The Crown submits that Mr Bouwens’ evidence was not implausible and that it was corroborated by other evidence in the trial including Mr Bouwens’ behaviour after the murder (in remaining at the scene until police and paramedics arrived and wearing the same clothes when he went to the police station the following day).

357. The Crown says that, implicit in the applicant’s written submissions is that the jury ought to have rejected Mr Bouwens’ evidence as to what he saw the applicant do, as well as the evidence of Mr Radburn (that he saw the applicant come back to the scene and assault the deceased), Ms Jones (as to what Mr Bouwens told her and what she could hear on the phone) and Ms Buchanan (that she saw only one man in the yard and not two).

358. The Crown points to the following six matters in support of its submission that the jury’s verdict was well open to it.

359. First, that the evidence overwhelmingly supported the proposition that the applicant was present at the Johnson Street house when the deceased was murdered.

360. The Crown relies in this regard on: the undisputed evidence that the applicant and Mr Bouwens left the Commercial Hotel together, that they were staying together and that they planned to go camping together the next day; the discovery of the deceased’s blood on a pair of thongs found at the applicant’s house (in circumstances where there was no suggestion that these thongs were Mr Bouwens’); and the detection of DNA consistent with being the applicant’s being found on the switchboard or power box and on the rear door handle of Johnson Street house (as well as there being some evidence that his palm print was on the rear of the car) (see Ex Z).

361. The Crown argues that, while it was submitted for the applicant that the DNA findings as to the power box and rear door handle are consistent with the house being the applicant’s mother’s home, the results were equally consistent with the applicant being present at the scene on the night of the murder. The Crown emphasises that the detection of DNA at those two particular locations is consistent with specific aspects of Mr Bouwens’ account (namely, that he believed the applicant switched the power off and that the applicant and the deceased went inside after the applicant assaulted the deceased on the back porch).

362. The Crown says that the applicant’s presence at the scene was also supported by the following: Ms Buchanan’s evidence that she saw two people, one in the yard and one near a gutter, and the CCTV footage from Battye Street which showed a figure running past the camera at 4:00am; the exchange of messages between Mr Bouwens and Ms Jones (Ex F) immediately after the phone call at 3:54am (which the Crown argues provides strong corroboration to the accounts of Mr Bouwens and Ms Jones that Mr Bouwens told Ms Jones something was occurring at the scene involving the applicant); and Ms Jones’ evidence that she could hear the applicant when Mr Bouwens called her.

363. Second, that there was evidence that the applicant fled the scene before emergency services arrived. The Crown points to the following: evidence from Ms Buchanan that she saw one of the two men at the scene run away; evidence from Mr Bouwens that the applicant ran away (at least once); and the CCTV footage from the Battye Street address showing someone running in that direction (the Crown submitting that the irresistible inference was that this person was the applicant). The Crown argues that, if the jury accepted that the applicant was with Mr Bouwens at the Johnson Street house, then the conclusion that he left before emergency services arrived inevitably followed. The Crown points to the submissions made to the jury at trial as to consciousness of guilt, to the effect that the applicant left because he knew what he had done to the deceased and to conceal his involvement, and that that the applicant washing his clothes was consistent with concealing evidence of his involvement; and that the jury was given a direction on consciousness of guilt reasoning with respect to those two matters (07/0323; T 1129). The Crown notes that it was drawn to the jury’s attention that the jury needed to rule out any other explanation for the conduct other than awareness of guilt (citing SU 33-34).

364. Third, that Mr Bouwens not only remained at the scene until emergency services arrived but also called Mr Radburn and Ms Jones for help during the incident. The Crown says that it was open to the jury to reason that his conduct was inconsistent with what might be expected of someone who was physically involved in the murder (and for the jury to contrast his behaviour with that of the applicant), pointing to the submissions made to the jury in closing as to this (07/03/23; T 1114). The Crown submits that the fact that Mr Bouwens neither left the scene nor discarded or changed his clothing before going to the police station was a reasonably compelling indication against his involvement in an attack on the deceased, regardless of any lies that he told. The Crown says that the jury could also take into account Mr Bouwens’ leg injury and that he was wearing the moonboot in assessing whether he would have been physically capable of carrying out the assault, having had the benefit of watching the CCTV and seeing how he was moving.

365. Fourth, that Ms Buchanan’s evidence was consistent with and supported Mr Bouwens’ account that only one person was involved in the assault (i.e., her evidence that there was one man in the front yard, whom she believed from what she could hear to be kicking a dog, and another man standing separately near the gutter).

366. The Crown accepts that Ms Buchanan’s credibility and reliability were challenged at trial and that she may have been under the influence of marijuana at the time that she walked home on the morning of 23 January 2021. However, the Crown says that Ms Buchanan’s credibility on what she saw and heard was not significantly diminished through cross-examination. The Crown submits that Ms Buchanan’s account that she was in the vicinity of the Johnson Street house was corroborated by CCTV footage (Ex 2) showing her walking in the area and by Mr Nelson, who described seeing a woman with red hair walking and looking at her phone. It is noted that Ms Buchanan maintained her account of what she saw and heard and the Crown says that she made appropriate concessions in her evidence as to her drug use and criminal history.

367. The Crown submits that Ms Buchanan’s account was unembellished in that she did not purport to see the victim but was frank about mistakenly believing that she was witnessing someone kicking a dog and she accepted her attention was divided because she was on her phone. The Crown says that Ms Buchanan had no reason to lie or to give an account favourable to Mr Bouwens but not the applicant; that the Officer in Charge gave evidence that Ms Buchanan asked for nothing in return for making a statement (06/03/23; T 1037); and that, while there was evidence that Ms Buchanan formally made her statement on a day when she was on remand in October 2021, and was subsequently granted bail, Ms Buchanan had already given an account to DSC Nolan some months earlier (and on Ms Buchanan’s evidence also to an officer who was present at the scene on 23 January 2021). The Crown says that those matters rebut any suggestion that her account came about through a desire to be released from custody.

368. The Crown argues that it was open to the jury to give little weight to Ms Buchanan’s incorrect identification in the photo board process. The Crown says that it is clear from the footage and from the transcript (Ex 3 and MFI 5) that Ms Buchanan expressed some uncertainty about her selection during the process, and notes that it was conducted a year after the events she witnessed. The Crown says that the critical part of Ms Buchanan’s evidence was that she saw only one of the two men doing the “kicking”, rather than her identification of the applicant.

369. The Crown submits that it was also open to the jury to accept that Ms Buchanan was being truthful when she denied telling DSC Nolan that she saw “two blokes kicking the shit out of something on the ground”, but rather “two blokes” at the house, one of whom was “kicking the shit out of something on the ground”. The Crown points out that DSC Nolan’s recollection of what was said was based on an email she wrote eight days after the conversation.

370. As to other aspects of Ms Buchanan’s account of events, the Crown points out that: Ms Buchanan’s account of hearing the man saying “get up” was supported not only by Ms Jones (who said she heard the applicant say this while she was on the phone to Mr Bouwens) but also by two neighbours (Ms O’Donoghue and Mr Teale); and Ms Buchanan’s account that she heard a name being called out was consistent with Mr Nelson’s evidence that he also heard someone calling out a name (albeit that he thought it was a different name).

371. The Crown submits that Ms Buchanan’s evidence that she saw a surname in the photo board process which triggered the memory as to the name “Dooley” is consistent with the recording (Ex 3 and MFI 5) where Ms Buchanan can be seen to observe something on the computer screen shortly before saying “Dooley” and “Mmm…Dooley. ‘Cause I think that’s the name they were calling out when running up the road”. The Crown says that, while it was not raised by the Crown at the trial, a print out from the photo board process tendered by the defence (Ex 4) displayed the name “Brendan Doolan” at the top of the page, suggesting that name may also have been visible to the witness. In any case, the Crown says that Ms Buchanan had earlier told police she heard a name being called out; and that the only change was her evidence that it may have been something like “Dooley”.

372. Finally, the Crown says that Ms Buchanan’s evidence that the person she saw was not wearing shoes was consistent with the expert evidence that the blood stains on the applicant’s thongs may have been caused by him putting the shoes back on (06/03/23; T 1014-1015).

373. Fifth, the Crown points to Detective Flippence’s evidence to the effect that the amount of blood on Mr Bouwens’ clothing was not consistent with what he would have expected from the perpetrator having regard to the crime scene photographs. The Crown says that the photographs of the clothing show the areas of blood staining to be fairly minimal (referring to Ex R at pp 160-164; Ex V, photographs 19-28). The Crown argues that there were explanations for the presence of some blood on Mr Bouwens’ shirt that fell short of involvement in the murder, referring in this context to Mr Bouwens’ account to Ms Alcorn that he picked up the deceased’s phone and put it in his pocket, which the Crown says is consistent with there being a blood stain on the front pocket (noting that there is no dispute that Mr Bouwens had handled the phone at some stage); and to Mr Bouwens’ account that he had attempted to intervene.

374. Sixth, the Crown emphasises that it was a matter for the jury to form a view as to whether Mr Bouwens’ evidence on the core aspects of his account was credible notwithstanding he had admitted to lying and was “potentially an unsophisticated and unsatisfactory witness in some respects”. The Crown notes that the jury was directed that it was a matter for the jury to “look carefully at what the witnesses said” and determine the effect of any discrepancies in their account (SU 6), and to assess demeanour and to consider how the evidence of a witness fit with the rest of the evidence by looking at it in context. The Crown points out that the need for the jury closely to consider whether Mr Bouwens could be believed was made very clear to the jury at a number of points (referring to the Crown prosecutor’s closing address and to the directions given by the trial judge (to which I have earlier referred)).

375. The Crown says that the theme that Mr Bouwens and Mr Radburn had repeatedly lied and could not be believed was one that pervaded the applicant’s counsel’s closing address; and submits that it must have been clear to the jury that Mr Bouwens’ credibility was the key issue in the trial.

376. As to the lies by Mr Bouwens in his first and second police statements, the Crown submits that it was open to the jury to find those lies were explicable by some reason other than Mr Bouwens inflicting any blows to the deceased.

377. The Crown argues that an obvious explanation for the lies in Mr Bouwens’ and Mr Radburns’ first statements (as to happening upon the altercation and seeing a figure run away) is that both Mr Bouwens and Mr Radburn did not want to implicate the applicant, who was their close friend. The Crown says that this is consistent with the account of Mr Bouwens, referring to the evidence of Mr Walsh, who said that the applicant told him he and Mr Radburn “had tried to cover up a little bit, help Brendan” and the statement of Mrs Bouwens that her son told her that he lied because “It was Brendan. He was my mate. I thought it was doing the right thing”. It is noted that Mr Radburn said in his evidence at trial that he lied because he was scared and the applicant was his mate. The Crown submits that the jury may have considered that explanation to be more plausible than the suggestion that the lies were aimed at protecting Mr Bouwens, given that Mr Bouwens had remained at the scene and called for help.

378. As to the continued lies by Mr Bouwens in the second statement, the Crown notes that the trial judge in summing up reiterated the submission by the applicant’s counsel in closing that these could no longer be explained by a desire to protect the applicant. The Crown says that, while Mr Bouwens implicated the applicant in the second statement but continued to tell lies about what he witnessed, it remained open to the jury to reconcile those lies with fear in circumstances where Mr Bouwens had been present during the murder, or due to shock or immaturity, or some combination of these matters and a desire to avoid admitting the full extent of his earlier lies. The Crown says that it did not inevitably follow from the lies he told that Mr Bouwens was concealing his own involvement.

379. Insofar as the applicant places reliance on the lies told in the 000 call, the Crown points out that those lies were told by Mr Radburn and not Mr Bouwens. The Crown says that the evidence does not support the applicant’s submission that Mr Bouwens and Mr Radburn must have colluded to advance a fabricated story from as early as the 000 call, noting the very limited time between the call to Ms Jones at 3:54am and the 000 call at 3:55pm. The Crown also points to the evidence that the men appeared to be in shock when police arrived. The Crown argues that the lies told by Mr Radburn in the 000 call are readily explicable by a desire to avoid implicating the applicant in the murder.

380. As to the reliance placed by the applicant on alleged lies told by Mr Bouwens and Mr Radburn about the applicant returning to the scene while Mr Radburn was on the 000 call and the applicant assaulting the deceased again, and Mr Radburn’s evidence that the two drove around calling out the applicant’s name (the latter not being able to be attributed to Mr Bouwens who did not give this evidence), the Crown accepts that nothing in the 000 call corroborates that either of these things occurred. However, the Crown points out that there are periods during the 000 call where Mr Radburn is not speaking to the operator. In any event, the Crown says that the notion that the applicant left and returned is somewhat consistent with Ms Buchanan’s account that she saw the applicant run off and then come back (though accepting that she did not give evidence of seeing him do anything nor seeing Mr Radburn arrive in the interim), and the notion that a name was called out was corroborated by both Ms Buchanan and Mr Nelson.

381. The Crown says that the significance of this aspect of the evidence of both Mr Bouwens and Mr Radburn in light of the contents of the 000 call was fundamentally a matter for the jury; and the Crown submits that, even if some of this account were to rejected, it remained open to the jury to accept the core aspects of Mr Bouwens account.

382. Insofar as the applicant challenges Mr Bouwens’ credibility and reliability on the basis of perceived inconsistencies in the accounts he gave to others following the assault and his evidence in Court, the Crown submits that there were important consistencies in what Mr Bouwens said (including that the applicant was the perpetrator; that the assault was violent; and that the applicant jumped on the deceased, the Crown here referring to the accounts Mr Bouwens gave to Ms Alcorn, Mr Walsh and his mother). The Crown argues that in his evidence in the trial, Mr Bouwens was consistent on the core aspects of what he observed, going to the elements of the offence.

383. The Crown also submits that Mr Bouwens’ evidence was consistent with the crime scene photographs: his account that the applicant first assaulted the deceased at the areas he identified in Ex 6 at the back steps being consistent with the blood stains in those areas in the crime scene photographs; his account that the applicant and the deceased then went inside being consistent with the blood found throughout the house and the DNA on the back door handle; and his account that there was then a further assault in the vicinity of the fence and the car in the driveway being consistent with the blood stains around the car on the driver’s side, particularly at the back of the car (see Ex V, photograph 12; Ex R, pp 45-59; and Ex S).

384. The Crown notes that at trial the applicant’s counsel relied on Mr Bouwens’ account that the applicant used a bin to pull himself up and jump as being inconsistent with the photographs and that Mr Bouwens said that this may have been the fence. In this regard, the Crown points out that the deceased’s blood was identified on the handle of the bin (Ex Z, result 13); that the crime scene photographs show the bins, the fence and the side of the car all to be close together; and that there was evidence suggesting the applicant’s palm print was located on the rear of the car. In those circumstances, the Crown says that the reference to use of a bin was not a significant inconsistency or deficiency in Mr Bouwens’ account. Further, the Crown submits that it was a matter for the jury to determine the significance of any inconsistencies between his accounts and details of his evidence at the trial with other evidence.

385. The Crown submits that it was also open to the jury to ascribe weight to any perceived attempt by Mr Bouwens to minimise his knowledge of the deceased. The Crown says that Mr Bouwens’ evidence that he did not appreciate that the “Bradley” staying at Ms Doolan’s house and the “Brad” he knew were one and the same until he saw him was not inherently implausible, and that Mr Bouwens’ evidence that he did not mention that the deceased had a relationship with his aunt initially because he was two years old and had forgotten, was also not incapable of belief.

386. As to the challenge to Mr Bouwens’ reliability on the basis of his evidence that he dreamt about the incident and remembered some details through dreams, the Crown says that, at trial, the defence case was that the reference to things coming back to him in dreams were lies that he told to explain new details in his account by the time of the police interview, rather than something going to whether he had a genuine recollection of what he was describing. The Crown says that Mr Bouwens’ evidence at the trial made clear that all he was saying was that he had dreamt about the incident, not that new memories had come to him in dreams. The Crown points out that a number of the details the applicant gave in his evidence were consistent with Mr Walsh’s evidence as to what Mr Bouwens told him on 23 January 2021; and the Crown submits that this weighed against any suggestion that Mr Bouwens had recalled key details much later through dreaming. In this regard, the Crown points to Mr Walsh’s account that Mr Bouwens told him about the applicant “punching, kicking, kneeing” and “jumping on” the deceased’s head after telling him to leave his mother’s house (which the Crown notes was consistent with Mr Bouwens’ evidence at the trial).

387. As to the reliance placed by the applicant on the tendency evidence, the Crown says that, while there were similarities between the assault on the deceased and the assault relied on as tendency evidence, there were also significant differences, as the Crown submitted in closing; and the tendency was based on evidence involving one other incident, over two years before 23 January 2021. The Crown says that it was a matter for the jury to assess the tendency evidence relating to Mr Bouwens and determine what weight to give it in the context of the other evidence in the case.

388. The Crown submits that full allowance should be given to the advantages the jury had in seeing and hearing the evidence during the trial; in particular, that of Mr Bouwens but also that of Mr Radburn, Ms Jones and Ms Buchanan.

389. The Crown argues that the jury was at a significant advantage in assessing Mr Bouwens’ credibility (that being the primary issue raised on appeal). As already noted, the Crown argues that it was open to the jury: to accept Mr Bouwens’ evidence on critical aspects of the Crown case and to reject his evidence on other aspects; to accept that Mr Bouwens was telling the truth in his evidence in Court notwithstanding he had (admittedly) lied on previous occasions; and for the jury to find that the lies he had previously told were explicable. The Crown says that this is not a case where Mr Bouwens’ evidence was inherently implausible or inconsistent with other evidence. Rather, the Crown says that it was supported in key respects by independent evidence and entirely consistent with his conduct on the night. The Crown thus submits that it was open to the jury to accept that Mr Bouwens was not involved in the assault notwithstanding that he had previously assaulted someone else over two years earlier, and to find the case proven beyond reasonable doubt on the evidence as a whole.

Determination

390. The principles relevant to resolving a ground of appeal challenging the reasonableness of a verdict were stated by the High Court in M v The Queen (1994) 181 CLR 487; [1994] HCA 63. The key question is whether the jury’s verdict was open on the whole of the evidence. One “must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses” but, rather, “pay full regard to those considerations”. Given that the jury is “the constitutional tribunal for deciding issues of fact” (Hocking v Bell (1945) 71 CLR 430 at 440; [1945] HCA 16 quoted in The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]), setting aside a verdict is a serious step which is not to be taken without giving particular regard to those advantages. Having regard to the advantages of the jury requires the Court to identify the “existence, nature and scope” of the advantages, which can ordinarily be done on the basis of the transcript (The King v ZT [2025] HCA 9; (2025) 99 ALJR 676 (ZT)).

391. In ZT the High Court said at [9]-[11] (citations omitted):

First, although another passage of M v The Queen refers to the advantage the jury has in “seeing and hearing the witnesses”, the passage above confirms that the jury’s advantages are not confined to witness testimony but may extend to all of the evidence adduced at trial. The advantages spoken of are the advantages the jury had, including by the application of the jurors’ collective wisdom and experience of ordinary affairs, from seeing and hearing the evidence as it unfolds when evaluating factual matters, especially witness credibility. The existence, nature and scope of those advantages will vary from case to case depending on the form in which the evidence was adduced and the nature of the issues that arose at the trial. For example, in Dansie v The Queen the advantage possessed by the trial judge as arbiter of fact was assessed as “slight” because the prosecution case was circumstantial, consisting mostly of transcripts of unchallenged testimony, and the appellant did not give evidence.

Second, in applying M v The Queen the appellate court is required to give “full allowance” to the advantages of the jury in seeing and hearing the evidence when assessing whether those advantages are capable of resolving any doubt the appellate court holds about the appellant’s guilt. Whether the evidence is adduced in the form of witness testimony or recorded conversations or recorded interviews, the advantages may extend to an assessment of matters such as: the tone and manner in which the witness or participants spoke or conducted themselves; their maturity; their emotional state and intelligence; and how they interact with others, including family members, associates, strangers or officials (eg, police officers). The jury can consider those matters possessing a breadth of understanding of how different people speak and behave in such circumstances that a judge may not have.

Third, M v The Queen requires that the appellate court undertake an “independent assessment” of the sufficiency and quality of the “whole of the evidence”. However, that assessment is undertaken in a context in which an appeal is as much of an adversarial process as the criminal trial from which the appeal is brought and in which it is for the parties to identify the evidence that the appellate court must review and assess and the features of that evidence that support their respective cases on appeal. The appellate court does not determine the grounds of appeal by simply reconsidering the parties’ respective cases at the trial.

392. In assessing a contention that a verdict was unreasonable the Court’s functions “[do] not involve the substitution of trial by an appeal court for a trial by a jury” and the Court “should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness-box” (Pell at [37]-[38]). Assessments of credibility, and the weight to be given to evidence by reference to the manner in which it was given are matters that are typically within the province of the jury, notwithstanding that an appellate court can nonetheless set aside a verdict where it has concerns about the reliability of evidence that is otherwise assumed to have been assessed by the jury to have been credible. In ZL v R [2023] NSWCCA 279 Adamson JA observed at [98]:

The extent to which this Court is entitled to disbelieve a witness (such as the complainant in the present case) whose evidence a jury must have accepted, at least in so far as it established the elements of the offence or offences of which [the accused] has been convicted, is constrained. This Court said in Z (a pseudonym) v R [2020] NSWCCA 8 at [29] (Macfarlan JA, Brereton JA and Beech-Jones CJ at CL agreeing):

“…it should be emphasised that, in general, matters of credibility are for the jury to determine and only in an unusual case will it be able to be said that the complainant’s credibility has been so damaged that it was not open to the jury to accept his or her evidence”.

393. Starting with the 000 call, which the applicant argues is the appropriate starting point on this appeal, there is no doubt that Mr Radburn lied in his account to the emergency operator as to how he came to be on the scene and in matters such as feigning ignorance of the house at which the incident had occurred. On Mr Bouwens’ evidence, he was close to Mr Radburn during that call and therefore it can readily be inferred that he tacitly adopted those lies when he did not correct them at the time. He also repeated those lies (as did Mr Radburn) in his first statement. And neither Mr Radburn nor Mr Bouwens said anything in their first statements as to the applicant returning to the scene (nor did Mr Radburn at that time give any account of driving to look for the applicant and calling out his name).

394. However, I do not accept that an inference can or should be drawn from the common lies in the 000 call that there was collusion between Mr Radburn and Mr Bouwens prior to the 000 call as to what should be said to the emergency operator. The timing of events as ascertained from the three minute call to Ms Jones (which, as explained earlier, must have concluded by about 3:54am) and the 000 call itself provides little or no opportunity for Mr Bouwens (who, on Mr Radburn’s account was “shaken” as a leaf when he arrived and the scene) and Mr Radburn to concoct a fabricated story as the applicant’s submissions postulate. It will be recalled that Ms Jones’ evidence was that the call from Mr Bouwens ended as the headlights of the car (Mr Radburn’s arrival) were approaching. Less still can it be surmised that the two were lying in order to protect Mr Bouwens (rather than the applicant).

395. The ready, and in my opinion, much more plausible explanation (rather than there being any collusion at that time) is that Mr Radburn, who on both his and Ms Jones’ accounts had been told that it was the applicant who was involved in the altercation at the Johnson Street house and Mr Bouwens was seeking help in that regard, was trying to protect the applicant (his friend); as also was Mr Bouwens, who on Mr Radburn’s account was visibly shaken and in shock at what had happened. That explanation is consistent with neither Mr Radburn nor Mr Bouwens referring (prior to the second statements) to the applicant returning to the scene.

396. As to the account given in the respective second statements that the applicant returned during the 000 call and further assaulted the deceased and of the interaction between Mr Radburn and the applicant (when Mr Radburn said the applicant told him “You’re next”), it is certainly the case that nothing can be heard in the background of the 000 call of those events as described by Mr Radburn and Mr Bouwens. However, not only were there pauses or silences during the 000 call when nothing was said but, more significantly, during some of those pauses no static can be heard on the line (which one would infer was when the call had been placed on mute, whether by the operator to confer with emergency services or the like or by Mr Radburn himself). The applicant accepted the Court’s observation that this was the case but submitted that the time period of those pauses was too short to permit the events that Mr Radburn and Mr Bouwens described to have occurred (AT 13-14). Nevertheless, some of the pauses where no static can be heard were longer than other periods in which there was simply no conversation between Mr Radburn and the operator. It is not implausible that events such as the applicant saying “You’re next” occurred in one of those pauses; nor is it implausible that the sound of stomping on the deceased’s head either coincided with such a pause or was not able to be heard on the recording (perhaps because by this stage of events the deceased cannot have been moving or making much sound). Therefore, the account given by Mr Radburn and Mr Bouwens as to the applicant returning and the events that followed cannot be dismissed as impossible to have occurred; nor is it inherently implausible.

397. The fact that Ms Jones gave evidence that she heard sounds of an assault (and of the applicant telling the deceased to get up) is not inconsistent with Mr Bouwens’ account that the applicant and deceased came to the front of the house during his call to Ms Jones. Certainly, Ms Jones could not have heard anything during the 000 call as the call to her had ended by then. Therefore, on the accounts given by Mr Radburn and Mr Bouwens, she cannot have heard the threat that “you’re next” (since that was made during the 000 call on their version of events). But her evidence as to the applicant telling the deceased to get up is consistent with the evidence of other witnesses (such as Ms Buchanan, Ms Jones and Ms O’Donoghue) and supports Mr Bouwens’ account as to aspects of what occurred in the front yard when the applicant and deceased came out the front.

398. As to the fact that Mr Radburn did not tell the 000 operator anything about the applicant returning to the scene, or the threat made to him, even though he agreed that this was shocking, it was for the jury to assess how plausible it was for Mr Radburn not to have volunteered that information at the time – as it was for the jury to assess whether he sounded calm and collected (as the applicant suggests) on the 000 call. The purpose of this Court listening to the recording of the 000 call was to assess the jury’s advantage in that regard (not to make our own assessment of Mr Radburn’s credibility based on that call) and to place in context the relevant timeline of events. In assessing that evidence, the jury could no doubt take into account that, unlike Mr Bouwens, Mr Radburn had not been out drinking until the early hours of the morning and one might expect him to sound more calm when speaking to the operator than Mr Bouwens might have sounded had he made the 000 call.

399. As to any discussion between Mr Radburn and Mr Bouwens prior to their respective police statements about what had occurred (which both witnesses initially denied), Mr Radburn himself acknowledged in his second statement that he had a conversation with Mr Bouwens in which he told him what he was going to say to the police (before the first statement). But this does not carry with it the conclusion that the two collaborated or colluded in a fabricated account at that time – rather, it is consistent with this being the version that Mr Radburn told the 000 operator, which Mr Bouwens overheard, and Mr Bouwens later adopting that untruthful version of events at the time of his first statement.

400. The more problematic aspect of Mr Radburn’s account is the evidence he gave at trial (not in either of his statements and which was not evidence given by Mr Bouwens) that he and Mr Bouwens went for a drive together to look for the applicant (including the calling out of the applicant’s name during that drive). There is some support for this account insofar as both Mr Nelson and Ms Buchanan gave evidence that they heard a name being called out (albeit, not the name “Dooley” except, in the case of Ms Buchanan, after she had participated in the photo-board identification process); and hence it might be plausible that Mr Radburn or Mr Bouwens was calling out to the applicant as Mr Radburn arrived at the house (consistent with Mr Radburn’s statement to the 000 operator that as he drove up “old mate” took off (Ex D; MFI 6, p 4)). But this is mere speculation – as is the suggestion that Mr Radburn was lying about the applicant coming back in order to protect Mr Bouwens. For various reasons, the account of both men going on a drive while the 000 call was in progress is implausible. However, this evidence can be regarded as unreliable evidence on Mr Radburn’s part without casting reasonable doubt on Mr Bouwens’ account of the events at the Johnson Street house. Accepting that it was a matter that could affect his overall credibility, this was for the jury to assess.

401. As to the proposition that Mr Radburn and Mr Bouwens had colluded to fabricate a story of the applicant returning during the 000 call, I do not accept that the evidence supports such an inference. Certainly, the ultimate state of the evidence supports the conclusion that there was (despite their earlier denials) some discussion at least between Mr Radburn and his father, on the one hand, and between Mr Bouwens and Mr Radburn’s father, after the making of their respective first statements as to what had happened (which led to them returning to the police station to give their second statements). However, the fact that neither had referred to the applicant returning in their earlier statement but did so in the second statement is consistent with them seeking to protect the applicant at the first point and then abandoning that attempt; it does not bespeak an attempt to falsify evidence in order to implicate the applicant and protect Mr Bouwens. Moreover, the change in their accounts between the first and second statements (as to the applicant returning to the house) does not make it more likely that Mr Bouwens was involved in the attack.

402. Ultimately, the jury had the advantage of assessing each of Mr Radburn and Mr Bouwens give evidence and of assessing their credibility and reliability in the context of the evidence as a whole. There is nothing to suggest a motivation for Mr Radburn to implicate the applicant for the benefit of Mr Bouwens. He was a friend of each and, indeed, had been a friend of the applicant for marginally longer than a friend of Mr Bouwens.

403. Turning to the matters relied upon by the applicant in his submissions as to Mr Bouwens’ lies more generally, I make the following observations. First, I do not attach the significance that the applicant does to Mr Bouwens’ evidence as to his disclaimer of knowledge or interest in the deceased. For example, it is not implausible that Mr Bouwens did not recall a relationship between the deceased and his aunt that occurred when Mr Bouwens was a young child. Nor do I accept that knowledge or belief that the deceased was a paedophile can be used to impute to Mr Bouwens a motive to assault the deceased. Unlike the position of the applicant, there was no evidence that Mr Bouwens had expressed a dislike of the deceased staying with the applicant’s mother.

404. As to the inconsistencies in Mr Bouwens’ various accounts of the events to other people (such as whether the applicant had used an Otto bin and car bonnet to jump on the deceased or had jumped off the back of the car), it is not unusual for there to be variations in accounts given of such events – and it must be remembered that this assumes the accuracy of the recollection of the person to whom the account was given. Perhaps most troubling is the account given by Mr Neilson that Mr Radburn was there and “we” turned off the power to lure the deceased out. However, on no view of the evidence can it be suggested that Mr Radburn was there at the time the power was switched off, which suggests that a mis-recollection by Mr Neilson as to who was said to have turned the power off becomes not implausible. Insofar as the applicant points to the evidence (from Ms Cantwell at [257] above) that Mr Bouwens was in effect keen for the applicant to plead guilty in order for the investigation to come to an end, this must be seen in the context that Mr Bouwens also apparently thought that if this happened he could apply for some form of compensation. In other words, it is consistent with a mercenary motive as opposed to some form of consciousness of guilt on his part.

405. As to Mr Bouwens’ belief that the applicant had gone to the house to get his swag, this may have been implausible in the circumstances but Mr Bouwens did not suggest that this was what the applicant had said was the reason they were going there – it could simply have been a mistaken assumption on Mr Bouwens’ part.

406. As to the blood spatter analysis, it is significant in my opinion that the evidence of Detective Flippence was to the effect that he would have expected more blood on Mr Bouwens’ clothes had he been involved in the attack out the back of the house. There appears to be no dispute that blood could have been dispersed onto his clothes if he had simply been close to the deceased out the back of the house or if he approached the applicant out the front of the house.

407. As to the tendency evidence, little weight can be attached to this in circumstances where it was an isolated incident and little is known of the motivation for the altercation (other than the fact that something had been said about Mr Bouwens’ mother which apparently triggered it). The fact that on one earlier occasion Mr Bouwens had been involved in a violent assault of a man when drunk does not make it more likely that he was involved in the assault of the deceased. In any event, it was a matter for the jury to consider whether the asserted tendency had been proved and, if so, the impact of that tendency on whether the Crown had proved its case beyond reasonable doubt.

408. Having considered all of the evidence, I am not left with a reasonable doubt as to the guilt of the accused. I consider that it was reasonably open to the jury to conclude that the Crown had excluded any reasonable possibility that Mr Bouwens contributed a blow to the deceased. In that regard, I accept that the jury could place weight on the fact that Mr Bouwens, despite his many lies, did not leave the scene but waited for police and paramedics to arrive (having earlier called Ms Jones for help from Mr Radburn). Conversely, it was open to the jury to place weight on the fact that the applicant had left the scene before police arrived and had washed his clothing (albeit including work clothes) that morning.

409. The evidence does not give rise to a reasonable doubt as to the presence of the applicant at the Johnson Street house when the deceased was murdered (having regard to the fact that he had left the Commercial Hotel with Mr Bouwens, his DNA was on the switchboard and rear door handle of the house, and the forensic analysis established the presence of the deceased’s DNA on the applicant’s thongs (which were found at his house and consistent with the thongs observed in CCTV footage that he was wearing that night)). While Ms Buchanan was conceded by the Crown to be a dysfunctional witness, her account of seeing two men (one in the yard and one in the gutter) was consistent with Mr Bouwens’ account of events and her account of what she heard (like a dog being kicked and the demand that the victim get up) was corroborated by a number of witnesses (see above). Her presence in the area at the time was corroborated both by the CCTV footage (Ex 2) and Mr Nelson’s account.

410. Ultimately, deference must be given to the advantage of the jury in assessing the credibility and reliability of the various witnesses who gave evidence at the trial, particularly of Mr Bouwens and Mr Radburn.

411. In my opinion the jury’s verdict was open and was not unreasonable. I have concluded that the Crown excluded the possibility that Mr Bouwens was involved in the assault and murder of the deceased.

412. The appeal should be dismissed.

Orders

413. For the above reasons, the following orders should be made:

414. Extend time to apply for leave to appeal to the date of filing of the application for leave to appeal.

415. Grant leave to appeal.

416. Dismiss the appeal.

417. RIGG J: I have had the considerable advantage of reading the draft judgment of Ward P and agree with the orders her Honour proposes. Her Honour’s comprehensive summary of the evidence, issues at trial, legal principles and arguments on appeal makes it unnecessary for me to explain in detail why I agree that the appeal should be dismissed.

418. On my own assessment of the whole of the evidence, I am not persuaded that it was not open to the jury to convict the applicant. I regard the traumatic nature of the circumstances Mr Bouwens and Mr Radburn found themselves in (on the Crown case), their loyalty to the applicant, and the problems caused by giving an initially false account, capable of explaining the asserted discrepancies and inadequacies in their evidence. I am not persuaded that the issues raised give rise to a reasonable doubt. Were I to entertain such a doubt, I would regard the jury’s advantage in assessing these witnesses as significant, requiring resolution of this ground against the applicant. I also agree with Ward P’s analysis of the other aspects of the evidence relied upon by the applicant.

419. COLEMAN J: I have had the advantage of reading the reasons of Ward P in draft. I am grateful for her Honour’s careful and thorough exposition of the evidence at trial and the respective arguments of the parties.

420. My own review of the evidence has led me to conclude, like her Honour, that I am satisfied that the verdict was open to the jury and is not unreasonable. I consider that the evidence establishes the guilt of the applicant beyond reasonable doubt.

421. It was for the jury to consider the credibility and reliability of the witnesses, particularly Mr Bouwens and Mr Radburn having seen and heard those witnesses and considering their evidence in the context of the evidence as a whole. The applicant has not established any basis for this Court to go behind the advantage the jury had in this regard. I agree with the reasons of Ward P as to why it was reasonably open to the jury to conclude that the Crown had excluded any reasonable possibility that Mr Bouwens contributed a blow to the deceased.

422. For the reasons given by Ward P, none of the arguments advanced by the applicant are established so as to raise in my mind a reasonable doubt as to the guilt of the applicant.

423. I agree with the orders proposed by Ward P.

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