DPP v B Makoi; K Makoi; N Matot; A Matot; A Dau

BAKER J:

Introduction

1. The accused, Beich Maker Makoi, Kock-Kedhia Maker Makoi, Nyalat Matot, Achan Matot and Akim Dau have each been charged with the following offences on an indictment dated 2 February 2023: (a) Count 1: Aggravated burglary contrary to s 312 of the Criminal Code 2002 (ACT) and by virtue of s 45A of the Criminal Code; (b) Count 2: Assault occasioning actual bodily harm contrary to s 24(1) of the Crimes Act 1900 (ACT) and by virtue of s 45A of the Criminal Code; (c) Count 3: Damaging property contrary to s 403 of the Criminal Code and by virtue of s 45A of the Criminal Code; and (d) Count 4: Threat to kill contrary to s 30 of the Crimes Act and by virtue of s 45A of the Criminal Code.

2. Achan Matot and Kock-Kedhia Maker Makoi are also charged with common assault of Achol Bol and Achol Garang respectively. Each of these charges have been transferred pursuant to s 90B of the Magistrates Court Act 1930 (ACT).

3. Each of the accused has elected in writing to be tried by judge alone pursuant to s 68B(1)(a) of the Supreme Court Act 1933 (ACT).

4. The trial commenced before me on 7 February 2023. On that date, each of the accused were arraigned and each pleaded not guilty to all charges.

5. On 21 February 2023, I retired to consider the evidence put before me. I now provide the following reasons for my verdict, which include the principles of law I have applied and the findings of fact that I have made, as required by s 68C (2) of the Supreme Court Act; see also Fleming v The Queen [1998] HCA 68; 197 CLR 250.

The evidence in the trial

Introduction

6. In brief, the prosecution case is that each of the offences were committed by each of the accused when, acting as a group, they broke into the apartment of Ms Garang and assaulted her, damaged Ms Garang’s property and made threats to kill her. One of the transferred charges also relates to an assault alleged to have been committed upon Ms Achol Bol.

7. At the time of the alleged incident, Achol Bol was visiting her sister, Achieu (“Kiki”) Bol, who was housemates with Achol Garang. The two Bol sisters were sharing a room while Achol Bol was visiting her sister. Achieu Bol was not present at the time of the alleged incident, as she had left the apartment earlier in the evening.

8. A number of the accused are related. Beich Maker Makoi and Kock-Kedhia Maker Makoi are sisters, as are Nyalat Matot and Achan Matot. At the time of the events in question, Akim Dau was living with Kock-Kedhia Maker Makoi. All were known to Ms Garang.

9. As a number of the accused share the same surnames, I will refer to Beich Maker Makoi, Kock-Kedhia Maker Makoi, Nyalat Matot and Achan Matot by their preferred first and surnames. I was informed that Beich Maker Makoi’s preferred first name is “Tabisa”, and that Kock-Kedhia Maker Makoi’s preferred first name is “KK”. I will refer to Akim Dau by her surname.

10. As the two complainants share the same first name, I will refer to each of them by their surnames. I do not mean any disrespect by referring to a number of the accused by their first and surnames and the complainants by their surnames. This course has been necessary to avoid confusion.

The incident on 21 June 2020 at KK Makoi’s house

11. The prosecution case is that the offences were committed by each of the accused, acting together, in retaliation for an incident that occurred on 21 June 2020. The circumstances surrounding that event were as follows.

12. In the months preceding June 2020, the accused Akim Dau had been living with Ms Garang in Ms Garang’s apartment in Hawker. However, following a falling out, Ms Dau had moved out of Ms Garang’s apartment and into KK’s Makoi’s house in Moncrieff. Ms Dau had left some of her belongings and identification documents in Ms Garang’s apartment. On 21 June, Ms Garang, Achieu Bol, Achol Bol, and Ms Garang’s male friend, “DJ”, drove to KK Makoi’s house to return Ms Dau her belongings, which were in a black backpack.

13. When they arrived at KK Makoi’s house, Ms Garang and her friends went inside through a back entrance. They did not stay long. As they left, Ms Garang noticed that the black backpack containing Ms Dau’s belongings was on fire. Ms Garang and her friends walked past the burning backpack, got into their car, and drove away.

14. Immediately after Ms Garang and her friends drove off, KK Makoi’s dog, Nipsy, was found dead on the road outside KK Makoi’s house. Given the short period during which these events occurred, KK Makoi inferred that Ms Garang’s car had hit and killed Nipsy as Ms Garang was driving away. KK Makoi subsequently called police in relation to the incident. The transcript of that call records “Mary Makoi” as a participant in that call to police on 21 June 2020. (In cross-examination, Ms Garang agreed that KK Makoi is also known as “Mary”.)

15. At approximately 7:40pm that evening the Gungahlin Police Station received a radio transmission to attend an address in Moncrieff regarding “petrol poured on a bag of property and set alight.” Constable Benness and Constable Holdsworth attended KK Makoi’s home in response to this call.

16. Constable Benness gave evidence that upon arrival, he spoke to a distraught woman at the front of the Moncrieff address by the name of “Mary Makoi” who told him that her dog was dead and that Ms Garang and “Kiki” were responsible. The woman showed Constable Benness Nipsy’s body.

17. Constable Holdsworth was shown the burnt backpack. Ms Dau told him that her identification documents had been in the backpack, but that she couldn’t find those documents in the backpack’s burnt remains.

A phone call on 21 June 2020

18. Ms Garang gave evidence that later that day (21 June 2020), she received a call from KK Makoi threatening to “come for” her for killing Nipsy. Ms Garang gave evidence that the phone call lasted for “just a few minutes…a minute or two”. Ms Garang said that she could also hear Ms Dau and Tabisa Makoi in the background of the telephone call. All of them sounded upset. Ms Garang said that she stayed up most of that night, waiting in case they arrived to assault her. She said that no one came.

19. I note that this call does not appear in KK Makoi’s phone records, which were admitted into evidence. However, the phone records indicate that a call was made from Tabisa Makoi’s phone to Ms Garang’s phone on 21 June 2020 at 20:26:47, which has a duration of 65 seconds. Immediately following this call are attempted calls of short duration (2 seconds) from Ms Garang’s phone to Tabisa Makoi’s phone.

22 June 2020: The alleged offences

20. Ms Garang gave evidence that, the next day (22 June 2020), she invited two or three friends over to her apartment at approximately 1:00pm. As noted above, Achol Bol was staying at Ms Garang’s house because her sister, Achieu Bol, was Ms Garang’s housemate.

21. Ms Garang gave evidence that she drank alcohol and smoked cigarettes with her friends as well as Achol Bol and Achieu Bol that afternoon. (As noted below, Achol Bol did not recall this.) She said that the visitors left at about 6:00pm or 7:00pm, and that she went to bed at about 8:00pm. Ms Garang said that Achol Bol also went to bed at that time. Achieu Bol stayed awake in the living room, as she was getting ready to go out later on that evening.

22. Ms Garang gave evidence that shortly after she went to sleep, she woke up to find Tabisa Makoi on top of her, pinning her hands down on the bed and “beating her up”. Tabisa was angry and was accusing Ms Garang of killing KK’s dog.

23. Ms Garang said while Tabisa Makoi was sitting on top of her, she could see KK Makoi standing on the left of her bed, approximately half a metre away. Ms Garang gave evidence that KK Makoi hit her with a wine rack, holding it with both her hands, swinging it behind her shoulder and bringing it down on her knees, legs and thighs. Ms Garang was not sure how many times she was struck with the wine rack. She said that during the assault, she lost her vision for a few seconds and became dizzy and lightheaded.

24. Ms Garang said that she asked Tabisa Makoi “what the hell. What are you doing? Why are you hitting me and stuff?”. Tabisa replied “you fucking killed a dog”.

25. Ms Garang gave evidence that, approximately one or two minutes after the assault began, Ms Dau came to the bedroom and was “talking down on her” and saying “yeah, you like that, bitch”. Ms Garang said that she also saw Ms Dau opening her cupboards in her bedroom and looking for her belongings. Ms Dau was standing “a bit further away” than KK Makoi, and walking “in and out of [her] room and into the living area.”

26. Ms Garang said that she could hear things being shattered in her living area, and noises of people fighting in the other room. She could not hear exactly what was being said but could tell the voices were female. She heard Achol Bol say “get off me”.

27. Ms Garang recalled that after a few minutes, Tabisa Makoi got off her and walked out of her bedroom. Ms Garang remained in the bed. KK Makoi hit Ms Garang a few times with the wine rack, and then ran out of the bedroom and left the house.

28. Ms Garang said that she then got up out of bed and leaned against the door frame of her bedroom door. She said that she saw a number of women leaving the apartment as she was standing against the door frame. She said she saw “Nyalat, Achan Matot and Achan… the other Achan” as well as Tabisa Makoi, KK Makoi and Akim Dau. In cross-examination, Ms Garang explained that the “other Achan” was a female who she knew as “Jessie”. She agreed that Jessie’s surname may have been “Deng”.

29. Ms Garang told the court that “[the accused] poured petrol everywhere in the house”. The last thing she heard from the intruders was Tabisa Makoi saying “where’s the lighter” when she was standing at her bedroom door following the assault.

30. After the intruders left the apartment, Ms Bol ran to check on Ms Garang. Ms Garang gave evidence that Ms Bol then told her that during the assault she had tried to come into her room to help her, but Achan Matot and “Jessie” were blocking her. (As noted below, Ms Bol told police who arrived shortly thereafter that she did not know any of the assailants.)

31. Ms Garang said that she called triple 0 while standing near the door and that she went to sit back down on her bed, next to Ms Bol, whilst she was on the phone. However, she also gave evidence that she was still laying in her bed when Ms Bol approached her and asked her if she was ok.

Ms Garang’s evidence about threats

32. In her evidence in chief, Ms Garang did not initially give evidence of any threats made by any of the accused. The prosecutor sought leave to refresh Ms Garang’s memory under s 32 and/or to cross-examine her under s 38 of the Evidence Act 2011 (ACT). Each of the accused submitted that the threshold for granting leave to refresh Ms Garang’s memory was not met, but no submissions were made in opposition to leave being granted to the prosecutor to cross-examine her under s 38. I granted leave to the prosecutor to cross-examine Ms Garang pursuant to that provision.

33. In the course of that cross-examination, and after being shown the statement that she previously made to police, Ms Garang recalled that while Tabisa Makoi was punching her with a closed fist, Tabisa Makoi said words to the effect of “How dare you. I’m going to fucking kill you today”. Ms Garang said that this was in the context of Tabisa Makoi also referring to the fact that she (Ms Garang) had killed KK Makoi’s dog.

34. After being shown her statement in cross-examination, Ms Garang also stated that after KK Makoi hit her in the face, she “immediately” lost her vision and could hear voices saying “go, go, go”. In her statement, Ms Garang had stated that she then heard KK Makoi say “I’m going to burn you alive, bitch” three times. After reading her statement, Ms Garang said that she could recall words to this effect being said, although she could not recall how many times those words were said.

35. Ms Garang explained that her memory of what KK Makoi had said came back to her after reading the statement she had given to police. She said that she had tried not to think about what had happened to avoid flashbacks of the event (“after a while … when I see anything on fire it just comes back to me that if these girls did have a lighter with them they could have burned me”). She said that she “definitely” remembered KK telling her that she was going to burn her alive.

The triple 0 call

36. After the assailants left, Ms Garang immediately called triple 0. Call records indicate that this call was made at 20:05 on 22 June 2020. An audio recording of that call was admitted into evidence. Loud voices can be heard in the background at the commencement of the call. Initially, the triple 0 call operator asked for an address. The first voice on the call (who appears to be Ms Bol) is heard to ask “Akim” what the address is. It is not clear who Ms Bol was referring to at this time.

37. Ms Garang then came onto the call and provided the triple 0 call operator with the address of her block of units. She then told the triple 0 call operator that “some girl” had come into her apartment and “beat the shit out of me while I was sleeping… and broke my whole house.” Ms Garang said that she “just woke up to somebody on top of me punching on my face.”

38. When asked whether she knew who the person was, Ms Garang answered “they’re leaving now. Yes, I do. They’re outside right now leaving.” She said that a “group of people” had attacked her. She identified one of the persons in the group as “Tabisa”. Other than referring to “some girl going around making problems” (Ms Garang explained in her evidence that was referring to Ms Dau and their previous falling out), Ms Garang did not refer to any of the other assailants by name in this call.

The arrival of police and ambulance

39. Police arrived at Ms Garang’s apartment at approximately 8:30pm in response to her triple 0 call.

40. On arrival, police observed extensive damage throughout the apartment. Police took photos and body worn footage which depicts broken furniture, a damaged television and broken glass and crockery throughout the apartment.

41. On arrival, police also noticed that Ms Garang’s apartment smelt of petrol. Bodyworn footage of Senior Constable Blackford shows one police officer picking up a plastic drink bottle. Senior Constable Blackford is heard to ask if that is “where [the smell] is coming from?” Sergeant Wills replied “yes, that’s where it smells like its coming.” Another officer, Constable Brockhurst-Leacock, gave evidence that he smelt petrol on the floor of the living room. He recalled seeing a “puddle” of liquid on the living room floor.

42. Police interviewed both Ms Garang and Achol Bol. Constable Elder gave evidence that he spoke to Ms Garang when he arrived at the apartment and that she told him what had occurred. Constable Elder said that Ms Garang told him that she was asleep in her apartment when she was awoken by Tabisa Makoi, who was sitting on top of her and assaulting her. Ms Garang also told Constable Elder that KK Makoi was hitting her with a wine rack. Ms Garang gave evidence that she told attending officers that as a result of KK Makoi assaulting her with the wine rack she felt her “lower body” and “lower back” go numb.

43. Constable Maher interviewed Achol Bol. Helpfully, Constable Maher’s interview of Ms Bol was recorded by way of body worn footage. In that interview, Ms Bol described awaking to noise and yelling and seeing approximately six Sudanese females smashing various objects and furniture in the apartment. Ms Bol described being hit with a metal pole by one of the intruders and seeing one of the intruders on top of Ms Garang assaulting her. She told Constable Maher that she could not identify who any of the intruders were and did not recognise any of them, but she heard the names “Achan” and “KK”. Constable Maher asked Ms Bol about the smell of petrol in the apartment. In reply, Ms Bol told Constable Maher that she did not see any of the offenders pouring petrol, but that she heard one of the offenders say that they had “petrolled” the apartment. (However, in cross-examination, Ms Bol said that she did not remember whether she heard anyone say that they had petrolled the house.)

44. At approximately 9:30pm, Ms Garang was taken to hospital by ambulance. She stayed there for approximately “an hour or so”, before signing herself out. She was administered a form of pain relief “gas” as well as Panadol and Nurofen.

45. Ms Garang gave evidence that she could not get out of bed the next morning as her eyes hurt and her jaw was fractured. She later explained that her jaw “felt” like it was fractured but was not in fact broken. Two photographs of Ms Garang’s face taken by police on the evening of the alleged incident showed that her left eye was swollen and puffy.

Texts and calls after the alleged incident

46. Call records show that various text messages were made between Tabisa Makoi and Ms Garang immediately after the incident. Those texts were recorded as being sent between 21:02 and 21:15. Those text messages were not admitted into evidence, and were never brought to the attention of police. Ms Garang could not recall what was discussed in the text messages.

47. The call records also record that Ms Garang made two calls to KK Makoi much later in the evening. Ms Garang gave evidence that she recalled calling Tabisa Makoi, as she was upset about having been assaulted by her.

The neighbour’s observations

48. Police conducted a door knock at the block of apartments to find out if any of Ms Garang’s neighbours had seen or heard anything related to the assault. One neighbour, who lived in the apartment at the end of the corridor opposite Ms Garang’s apartment, told police that she had heard a disturbance about 30 minutes before police arrived. The neighbour told Constable Blackford that she heard a voice saying “this is not over”, “you killed my effing dog” and “we’ll be back”.

49. In her evidence at trial, the neighbour explained that, at approximately 8:00pm she heard yelling and noise in the corridor outside her apartment. She said that the units are “really small” and that noise travels, so “you can hear pretty much what everyone’s doing in the block.” The neighbour recalled that one of the voices was saying “you killed my dog” and “I’m going to kill you”. She could hear lots of voices yelling at the same time. They were all “definitely female” voices.

50. The neighbour proceeded to look through the peephole of her door, which gave a direct view to the other end of the corridor where the door to Ms Garang’s apartment. When she looked through the peephole, she saw about six or seven women at the end of the corridor congregated around the door to Ms Garang’s apartment. All of the women appeared to be of African descent. One of the women was quite tall, and another had brightly coloured braids in her hair, one of which “[stood] out” because it was a purple coloured braid that “went down just past her bum”. The neighbour said that the women all appeared to be around the same age.

51. The neighbour was concerned and called police. Whilst on the phone to the police, the neighbour heard the yelling sounds die down as the women went down the stairwell to exit the apartment complex. From her kitchen window, the neighbour saw the women walk away from the apartment complex.

52. Constable Blackford’s notes record that the neighbour told him that she had seen “a group of people, African in appearance, sevenish, one male, 5 foot 7 inch tall with close-cropped hair; one female with braids in her hair. Most of the group were women. Seen the male person around before”. In her evidence in Court, the neighbour stated that she did not recall seeing a male, but accepted that she must have (“if that’s what I told the police officer”).

Subsequent police investigations

53. Police seized a plastic water bottle and a wine rack from the apartment. Both were sent to forensic experts within the Australian Federal Police (“AFP”) for analysis.

Analysis of the liquid in the plastic water bottle

54. The plastic water bottle was sent to Mr Benjamin Cabot, a forensic chemist with the AFP, for analysis.

55. Mr Cabot found traces of petrol in the bottle. However, Mr Cabot said that he had been informed by Constable Elder that the bottle had not been properly stored before it was given to him (that is, Mr Cabot). The bottle was in a paper bag when it was collected from the crime scene. The bottle remained in that paper bag in Belconnen Police Station for approximately 10 days before it was taken to forensics where it was then placed in a plastic bag and stored in a refrigerator.

56. Mr Cabot explained that because the bottle had been stored at room temperature, with an open lid, in a paper bag, he could not be certain that the plastic bottle was not contaminated. In particular, he could not discern whether any petrol in the bottle had evaporated out, or whether any items stored next to the bottle, which may have had petrol in or on them, had evaporated out and contaminated the liquid in the water bottle whilst in the paper bag.

57. There was no evidence as to what items were next to the plastic bottle for the 10 days that it was stored in Belconnen Police Station before being taken to forensics.

Analysis of the fingerprints on the wine rack and the water bottle

58. The wine rack was sent to Ms Lisa Nicholson, a fingerprint examiner with the AFP, for analysis and comparison with the fingerprints of each of the accused.

59. Ms Nicholson informed the Court that a fingerprint found on the wine rack was “not inconsistent” with the fingerprint of Tabisa Makoi’s right index finger, but that the print was not sufficiently clear to be positively identified as her fingerprint. Another fingerprint found on the wine rack was sufficiently clear for identification, however, it did not match any of the accused’s fingerprints.

60. Ms Nicholson also gave evidence about fingerprint evidence found on the clear plastic water bottle that was seized by police from the floor of Ms Garang’s apartment. Four fingerprints were obtained from the water bottle. Of those four prints, three had insufficient detail to identify a fingerprint. The fourth fingerprint was identified but could not be matched to any individual.

DNA analysis of the wine rack and the water bottle

61. The wine rack and the water bottle were sent to Joshua Schwartz, a forensic biologist with the AFP, for analysis and comparison with the DNA of each of the accused.

62. Mr Schwartz gave evidence that the DNA profile obtained from the wine rack was a “mixed DNA profile from a minimum of two individuals”. However, the profile was of insufficient quality to enable an identification to be made of either of the contributing individuals.

63. A mixed DNA profile from at least two persons was also obtained from the plastic water bottle. This profile was of better quality than the DNA profile obtained from the wine rack. Although the profile was also a two-person mixture, it appeared that one person contributed more DNA to this profile than the other. When this profile was compared against the profiles of the accused, the conclusion was drawn that Tabisa Makoi could not be excluded as a contributor to the profile.

64. Mr Schwartz was of the opinion that there was “extremely strong support” for the proposition that Tabisa Makoi was a contributor to the DNA profile found on the plastic water bottle. Comparing the DNA profile with the Australian Caucasian sub-population, Mr Schwartz concluded that: The evidence is at least 9 million times more likely if Tabisa Makoi is one of two contributors to the mixed DNA profile than if it originated from two unknown individuals unrelated to Tabisa Makoi selected at random from the Australian Caucasian sub-population. And in my opinion this finding, when considered in isolation from other information, provides extremely strong support for the proposition that Tabisa Makoi is a contributor to the DNA profile.

65. When asked why the Australian Caucasian sub-population database was used as a comparator, Mr Schwartz explained: … the database that we select for is independent of the race or the ethnicity or the cultural background of any of the suspects. It’s dependent on where the alleged incident has taken place. So because the alleged incident has taken place in Canberra, and we’re saying in that second proposition that Tabisa Makoi isn’t a contributor, someone else in the community is a contributor. So that’s why we used the Australian Caucasian subpopulation database because the general community in Canberra is Caucasian.

66. Mr Schwartz explained that, regardless of which comparison database used, Tabisa Makoi’s DNA could not be excluded as a contributor to the profile. He said that if a Sudanese database had been used, the “likelihood ratio” (that is, the reference to a likelihood of 9 million) would be lower, but he could not state by how much.

Forensic procedure

67. Almost two years after the alleged incident, on 12 May 2022, police took a photo of Tabisa Makoi during a forensic procedure. In that photo, Tabisa Makoi is shown to have a long purple and white braid that appeared to go down to her waist. There was no explanation as to why police did not attempt to obtain a forensic procedure to demonstrate Tabisa Makoi’s appearance at an earlier point in time.

68. However, Constable Elder said that he had been in contact with Tabisa Makoi a couple of weeks earlier, on 28 April 2022 and at that time, Tabisa Makoi did not have the braid. At that time, she had short hair that was dyed red.

The evidence of Achol Bol

69. On the last day of evidence in the trial (16 February 2023), the prosecution called Achol Bol, who was present with Ms Garang in the apartment at the time of the alleged offences. Ms Bol gave evidence via an audio-visual link (AVL) from a Victorian university campus. Ms Bol did not complete her evidence.

70. The circumstances in which Ms Bol’s evidence concluded are important to the determination of the issues in this case. For this reason, it is necessary to summarise her evidence and the circumstances in which she ceased giving evidence in some detail.

71. In her evidence in chief, Ms Bol explained that in June 2020, she stayed for a few nights at Ms Garang’s apartment, whilst visiting her sister, Achieu Bol, who was housemates with Ms Garang. During this time, Ms Bol shared her sister’s room.

72. As to the alleged offences, Ms Bol told the court that she was sleeping in her sister’s bedroom when several women entered the apartment. She first became aware of “loud noises” and “things breaking” in the living room. She woke to find “girls” in her bedroom, hitting her in the face and hitting her in the legs with a metal pole, while she was lying in bed. She said that she “defended [herself]” and punched them back. She said that the women were Sudanese; one was “short and chubby” and the other was “skinny and tall”. She did not know the women, but could identify that they were Sudanese.

73. After a short time, the girls left the bedroom and Ms Bol followed them towards Ms Garang’s room. She said that they proceeded to hit her and pour petrol on her. Ms Bol tried to get into Ms Garang’s room, but was not able to because the women were pushing her back. Ms Bol told the Court that she could see other Sudanese women through the door of Ms Garang’s bedroom.

74. Ms Bol testified that, although she could not enter Ms Garang’s bedroom, she could see the women hitting Ms Garang and pouring petrol on her. She could see about three women in the room, punching Ms Garang in the face and using the same metal pole to hit her that she had been assaulted with. Ms Bol said that she was also hit with the metal pole when she tried to enter Ms Garang’s room. She said that she could hear Ms Garang yelling at the women to stop whilst she was being assaulted. Ms Bol also heard the women screaming “where’s the lighter?”.

75. Ms Bol said that she saw the women pouring petrol “all over the house and pouring it on Ashushu [Ms Garang].” She did not recall exactly who was pouring the petrol, but remembered the smell of petrol in the kitchen, the living room and the bathroom. Ms Bol thought the petrol was carried in the water bottle.

76. The women left the house via the front door. As they were leaving, Ms Bol recalled hearing the women calling each other to say “let’s go”.

77. When the women left the apartment, Ms Bol said she went into Ms Garang’s room. Ms Garang was on the phone to police. She could not remember exactly where Ms Garang was when she was talking on the phone. They each told each other about what had happened to them, but Ms Bol could not recall the exact words that they used.

78. Following the incident, Ms Bol spoke to police and told them what had occurred. Ms Bol went with Ms Garang to the hospital in the ambulance. She recalled that Ms Garang had some injuries to her face and there was an injury to her ankle.

79. Ms Bol could not recall what time her sister, Achieu Bol, left the apartment. Ms Bol recounted that Achieu Bol came back to the apartment at some point on the evening of 22 June 2020 as she was present when police arrived.

80. Ms Bol also gave evidence that she told police she did not see anyone pouring petrol the night of the incident. She told the Court that she did not recall why she did not mention seeing someone pour petrol on Ms Garang. Ms Bol also gave evidence that the women had hit her with a metal pole, but she did not tell this to police in her interview captured on body worn footage. She said that she could “not really” remember what she had said about this.

81. In cross-examination Ms Bol told the Court that she could not recall whether there was a gathering of people at Ms Garang’s apartment on 22 June 2020, nor could she recall whether there were people having lunch at Ms Garang’s house that day. Ms Bol said that on the evening of 21 June 2020, she had been up late owing to her “bad sleeping pattern”, but could not recall where Ms Garang was that night. She also could not remember her sister, Achieu Bol, leaving the apartment on the evening of 22 June 2020. She said that she may have been asleep when Achieu left.

82. Ms Bol also gave evidence that she attended the hospital with Ms Garang in the ambulance but did not remember having a conversation with her in the vehicle. She told the Court that in the two or so years that have elapsed since the alleged offending, she has had conversations with both Ms Garang and Achieu Bol and “probably” spoke about the incident with both of them.

83. She told the court that when Achieu Bol came back to the apartment, she did not ask her about what she did that evening. She could not recall whether Ms Garang asked Achieu Bol about what she did that evening.

84. About 15 minutes into Ms Achol Bol’s cross-examination, counsel who appeared for the accused Tabisa Makoi, asked the following question: My friend, the prosecutor, has asked you some questions and unfortunately, I’ve got to go back there and ask you similar questions. Because as the prosecutor has indicated, some of the things you’ve said today are different to what you told police on 22 June 2020, do you understand that?

85. Ms Bol responded “yes”. She then disconnected from the AVL through which she was giving evidence, left the university campus and did not return. Ms Bol did not answer calls from the prosecution for the remainder of the day.

Proceedings after Achol Bol’s departure

86. On the application of the prosecutor, I granted the prosecution an adjournment until Monday 20 February 2023 to enable the prosecution to attempt to contact Ms Bol and to secure her attendance to complete the remainder of her evidence in the trial. On the morning of 20 February 2023, I was advised by the prosecutor that the prosecution had not been able to contact Ms Bol.

87. Counsel for KK Makoi and Tabisa Makoi each then made an application for a temporary stay of the proceedings until such time as Ms Bol could be brought before the Court to give the remainder of her evidence. The prosecution opposed this application.

88. I was satisfied that the risk of any unfairness arising from Ms Bol’s absence could be sufficiently ameliorated by the exclusion of evidence and/or the giving of directions, including a forceful Mahmood direction (Mahmood v Western Australia [2008] HCA 1; 232 CLR 397 at [27]) in the event that Ms Bol’s evidence were excluded in the case of one or more accused. I accordingly refused the application for a temporary stay: DPP v B Makoi; K Makoi; N Matot; A Matot; A Dau [2023] ACTSC 22.

89. The prosecution then closed its case. There was no case in reply for any of the accused.

Evidentiary objection: Ms Achol Bol’s evidence

90. As indicated at [88] above, one of the matters that I took into account in declining to order a temporary stay of the proceedings was that the risk of any unfairness arising from Ms Bol’s departure could be sufficiently ameliorated by the exclusion of her evidence (including both her oral evidence in the trial and/or her record of interview with police).

91. Each of the accused other than KK Makoi subsequently reached agreement with the prosecution that: (i) Question and answer 41, 42, and part of answers 43 and 46 in Ms Bol’s record of interview taken on 22 June 2020 (Exhibit 18) should be excluded. (ii) The remainder of Ms Bol’s record of interview was not objected to, and remained in evidence, including as proof of the statements contained therein (s 60 of the Evidence Act). (iii) In respect of Ms Bol’s evidence in chief, it was agreed that one aspect of Ms Bol’s evidence should be excluded, namely, Ms Bol’s evidence that she recognised “Akima” as being one of the women in the apartment. (In this respect, I note that Ms Bol had told Constable Maher that she did not recognise any of the intruders when interviewed on the evening in question.)

92. In circumstances where there was clear unfairness arising from the inability of the accused to complete the cross-examination of Ms Bol, I was satisfied that it was appropriate to exclude the parts of Ms Bol’s record of interview and evidence in chief that were objected to by those accused, and which were not pressed by the prosecution. I have not taken that evidence into account in my deliberations. As there was no objection to the remainder of Ms Bol’s in court evidence in respect of the four accused other than KK Makoi, I have taken that evidence into account in my deliberations in respect of each of them.

93. In respect of the accused KK Makoi, no such agreement was reached. Counsel for KK Makoi sought the following evidentiary rulings: (i) That pursuant to s 136 of the Evidence Act, the use of Exhibit 18 (KK Makoi’s record of interview with Police on 22 June 2022) be limited to proof of what Ms Bol told the police on 22 June 2020 (in other words, that the interview not be admitted under the hearsay provisions as proof of the representations contained therein); (ii) That pursuant to s 137 of the Evidence Act various questions and answers given during the oral evidence of Ms Bol be excluded, including that she heard one of the offenders referred to by the name of “KK” and that one of the offenders had “said something about a lighter… when they were jumping Ashushu [Ms Garang].”

94. In respect of the first ruling sought, counsel for KK Makoi submitted that there would be unfairness in allowing Exhibit 18 to be relied on as proof of the representations contained therein because Ms Bol could not be cross-examined “on evidence which the prosecutor submitted is reliable, and which inculpates the accused.”

95. In respect of the second ruling sought, counsel for KK Makoi submitted that the probative value of Ms Bol’s oral evidence was “limited by the obvious inconsistencies put to her by the prosecutor in her evidence in chief” and “the danger of unfair prejudice arises because there was only very limited cross-examination before Ms Bol discontinued her evidence.”

96. The prosecutor opposed the applications for Exhibit 18 to be limited under s 136 and the exclusion of evidence under s 137. The prosecutor contended that the evidence could only be limited or excluded in the way sought by counsel for KK Makoi if “unfair prejudice” were caused. The prosecutor submitted that in a judge alone trial, the possibility of unfair use was greatly mitigated, citing Seven Network Ltd v News Ltd (No 8) [2005] FCA 1348 at [21]. He also submitted that the probative value of the evidence (taken at its highest) was very high.

97. The prosecutor acknowledged that in resisting the application for a temporary stay of the proceedings, he had accepted that exclusion of Ms Bol’s evidence was one way in which the unfairness that resulted from her departure could be addressed. However, the prosecutor submitted that it would be unfair to the prosecution for an accused to be permitted to “cherry pick” which parts of the evidence could be relied on.

98. In response, counsel for KK Makoi clarified that he only sought that the use of Exhibit 18 be limited under s 136 and that the identified answers in Ms Bol’s oral evidence be excluded. He emphasised that he did not seek exclusion of all of Ms Bol’s evidence if this limited application failed, explaining that he would “prefer everything go in, rather than everything go out.”

99. In my view, there is force to the prosecutor’s submission that s 137 does not permit an accused to ‘cherry pick’ parts of evidence to be excluded simply on the basis that those parts of the evidence do not assist the accused’s case. Section 137 should not be applied so as to result in unfairness to either party. Partial exclusion of the evidence in the present case would result in unfairness to the prosecutor, as Ms Bol’s account would be misleading and incomplete. Accordingly, I refuse the application for partial exclusion of Ms Bol’s evidence under s 137 of the Evidence Act.

100. I also agree with the prosecutor’s submission that it would not be appropriate to limit the use of Ms Bol’s record of interview under s 136 of the Evidence Act. A limiting order may only be made under s 136 in circumstances where there is a danger that a particular use of the evidence might be unfairly prejudicial to a party, or be misleading or confusing. I am satisfied that the risk of unfair prejudice can be met by the strong directions that I will give myself concerning this evidence, particularly given that this is a judge alone trial.

101. Accordingly, the evidence in the case against KK Makoi will include both Ms Bol’s evidence in Court, and her record of interview with police (Exhibit 18). This evidence is the subject of specific directions so as to guard against the possibility of unfair prejudice, which I address at [118] to [123] below.

The elements

102. There was no dispute between the parties as to the elements of the charged offences. Annexure “A” to this judgment contains a summary of the elements for each of the charged offences. I address the elements in the consideration of my verdicts below.

Directions

103. During the course of oral addresses, I provided the parties with the draft directions that I proposed to give myself and heard submissions in respect of the content of those directions.

104. The majority of the proposed directions are common to offences of this nature and were not the subject of objection by any party. However, various accused sought directions or extended directions in relation to the following issues, which were opposed either in whole or in part by the prosecutor: (i) That I carefully examine the evidence of Ms Garang as a “critical prosecution witness” (a Murray direction); (ii) That I warn myself against asking whether there is any reason for Ms Garang to lie (a Jovanovic direction); and (iii) The complaint evidence (specifically, which of Ms Garang’s previous statements fall within the scope of the direction); and (iv) The warnings that I should give myself in relation to the absence of complete evidence from Achol Bol.

105. In addition, counsel for KK Makoi and Tabisa Makoi each initially sought a Mahmood direction (Mahmood v Western Australia (2008) 232 CLR 397 at [27]) in respect of the failure of the prosecution to call Achieu Bol. However, after the prosecutor informed the Court that there had been discussions about whether Achieu Bol was required and that no counsel had requested that she be called, a Mahmood direction in respect of Achieu Bol was not pressed by any of the accuseds’ counsel.

106. Annexure “B” to this judgment sets out the directions that I have given myself, and which I have borne in mind in the consideration of my verdicts for each accused. My reasons for directing myself in respect of the disputed directions are set out below.

Murray direction

107. A Murray direction is a direction that, “in any case in which the sole evidence of the commission of a crime is that of a single witness, the evidence of that witness must be scrutinised with great care”: R v Murray (1987) 11 NSWLR 12 at 19; Ewen v R [2015] NSWCCA 117; 250 A Crim R 544 at [104] (Simpson J; Basten JA and Davies J agreeing). As Adamson J (with whom Bathurst CJ and Davies J agreed) observed in Gould v R; R v Gould [2021] NSWCCA 92 at [134], a Murray direction derives from fundamental principles relating to the onus of proof and can be reduced to the following propositions: (1) it is for the Crown to prove each element of an offence beyond reasonable doubt; (2) the jury is obliged to consider all of the evidence in determining whether each element has been proved beyond reasonable doubt; (3) if the commission of an offence (or at least one element of it) depends solely on the evidence of a single witness, the jury must be satisfied of the evidence of that witness beyond reasonable doubt as to the relevant element or elements (since there is no other evidence to weigh in the balance); (4) if there is evidence beyond that of the single witness which tends to prove the particular element, there is no basis for a Murray direction since the jury could be satisfied of the particular element beyond reasonable doubt even though, without more, they would not be prepared to accept the evidence of the witness as to that matter beyond reasonable doubt; and (5) the evidence beyond that of a single witness can derive either from the oral testimony of other witnesses; or from documents; or other corroboration (such as DNA testing, telephone intercepts, physical evidence etc).

108. The prosecutor did not oppose the giving of a Murray direction in the cases against Nyalat Matot, Achan Matot or Akim Dau. However, the prosecutor opposed this direction in the cases against Tabisa Makoi and KK Makoi. The prosecutor submitted that such a direction is not appropriate in their cases because Ms Garang’s evidence about each of those accused is supported – by the neighbour’s evidence and Ms Bol’s evidence in the case of KK Makoi, and by DNA evidence, fingerprint evidence and the evidence of the use of hair braid extensions in the case of Tabisa Makoi.

109. I agree with the prosecution that a Murray direction may not be strictly required as a matter of law in the case of KK Makoi and Tabisa Makoi, as there is evidence apart from the evidence of Ms Garang that supports the prosecution case against each of these accused. Nonetheless, consistently with the onus and burden of proof, I have scrutinised Ms Garang’s evidence with great care in respect of each accused. I have also carefully considered whether Ms Garang’s evidence is supported by reliable and independent evidence in the case against each accused.

Jovanovic direction

110. A Jovanovic direction is a direction to the effect that, even if the jury does not accept that a witness was motivated to lie for a reason suggested by the accused, that does not mean that the witness is necessarily telling the truth: R v Jovanovic (1997) 42 NSWLR 520 at 521–522 (Priestley JA) and 535 (Sperling J); see also Hoyle v The Queen [2018] ACTCA 42; 339 FCR 11.

111. Like a Murray direction, a Jovanovic direction also derives from fundamental principles concerned with the onus and standard of proof in a criminal trial. A Jovanovic direction reinforces the directions concerning the requirement for proof beyond reasonable doubt, which are central to my consideration of the charges against each accused. It also repeats the direction that a witness’ evidence may be accepted in whole or in part.

112. The heart of the Jovanovic direction concerns a prosecution witness’ motive to lie. It is a reminder that it would be “wrong… to conclude” that a prosecution witness is telling the truth merely because there is no apparent reason for the witness to lie.

113. The prosecutor noted that counsel for Ms Dau had submitted that Ms Garang had a motive to lie about the offences (namely to cover up her role in the incident where Ms Dau’s bag was burnt) and that counsel for KK Makoi had submitted that KK Makoi had been framed by Ms Garang. In these circumstances, the prosecutor accepted that a Jovanovic direction would be appropriate in the case against KK Makoi and Ms Dau. However, he submitted that directions as to onus of proof would be a sufficient safeguard in respect of the remaining accused, who did not make an express submission concerning a motive to lie.

114. I consider it to be appropriate to direct myself in accordance with Jovanovic in the case against each accused. I note that such a direction is entirely consistent with the fundamental directions concerning the onus of proof and does not operate to the forensic disadvantage of the prosecution.

Complaint evidence

115. There is no dispute between the parties as to the content of the directions concerning complaint evidence. However, counsel for Achan Matot and KK Makoi each submit that the directions should also apply to Ms Garang’s statement to police dated 30 June 2020. The prosecutor submitted that such a direction should not be made, emphasising that this statement had not been adduced as evidence of complaint.

116. It was not entirely clear why counsel for Achan Matot and KK Makoi sought that this statement be included in the complaint direction. The first aspect of the complaint direction (that is, that the statement can be used as “additional” evidence of the events described by Ms Garang) could only operate to the disadvantage of each accused. I presume that each counsel rather sought to ensure that I consider this statement in assessing Ms Garang’s credibility.

117. I will not include Ms Garang’s statement to police dated 30 June 2020 in the complaint direction, but I will give careful consideration to this statement, including any inconsistencies between the statement and the evidence given by Ms Garang, when assessing Ms Garang’s credibility.

Warnings

118. As indicated in Annexure “B”, I have given myself a strong warning concerning the evidence of Ms Bol. There was no dispute between the parties in respect of the substance of this direction. However, the prosecutor objected to the inclusion of the following additional direction: I must also consider the circumstances in which Ms Bol’s evidence concluded when assessing the credibility and reliability of the evidence that Ms Bol gave in court prior to her departure and the account that she gave to Constable Maher on 22 June 2020 (Exhibit 18).

119. The prosecution submitted that this paragraph should not be included because: (i) It is unfair and only invites speculation about why the witness was no longer available in circumstances where she had in fact answered some questions about the differences during cross-examination and there may be other reasons quite apart from the one put forward by the accused, why she became unavailable which cannot be explored; and (ii) It is not necessary in circumstances where there is already effectively a forensic advantage direction and an unreliability warning about her evidence.

120. I am of the view that I should take into account the circumstances in which Ms Bol’s evidence concluded when considering her credibility and reliability. The fact that Ms Bol immediately departed when she was confronted with an allegation as to inconsistencies in her evidence is relevant to an assessment of her credibility and reliability. Accordingly, I will give myself the direction set out at [118] above.

121. However, I will also bear in mind that there may be other reasons why Ms Bol may have left when she did. In particular, I note that Ms Bol had been required to attend the AVL location to give evidence on numerous days prior to the date upon which she actually gave evidence. Her evidence was not reached on any of these days, because of delays in the trial caused by the unavailability of the accused and other witnesses. I accept that a possible reason for Ms Bol’s departure may have been her frustration with the trial process and its effect on her life, as opposed to the departure being caused by a recognition that she was about to be caught out as having given false evidence to the Court.

122. Each of the accused also submitted that my warning to approach Ms Bol’s evidence “with considerable caution” because it was not the subject of cross-examination should also extend to the account that Ms Bol gave to Constable Maher on 22 June 2020 (Exhibit 18). The prosecution opposed this direction.

123. I am of the view that this additional warning should be given. In her interview with police on 22 June 2020, Ms Bol gave some answers which are inconsistent with the evidence that she later gave on oath. As a result of Ms Bol’s departure, the accused have been deprived of an opportunity to cross-examine Ms Bol on these answers. Accordingly, I will direct myself that I should also approach Exhibit 18 with “considerable caution”.

Findings as to the credibility and reliability of Ms Garang and Ms Bol

Introduction

124. The evidence of Ms Garang and Ms Bol is central to the prosecution case in respect of the identification of each accused. For this reason, before considering the prosecution case in respect of each individual accused, I will first address the following issues of general application: (i) Ms Bol’s credibility. (ii) Ms Garang’s credibility; (iii) Ms Garang’s reliability (in particular, the reliability of her identification of Nyalat Matot, Achan Matot and Ms Dau).

Ms Bol’s credibility

125. The departure of Achol Bol has created particular difficulties for this trial.

126. Generally speaking, when a witness is not able to complete their evidence, it is usual for that witness’ evidence to be excluded. In the present case, for the reasons outlined at [90] – [101] above, Ms Bol’s evidence and her interview with Constable Maher were admitted into evidence in the case of each accused (with the exclusion of specified evidence in the cases of each accused other than KK Makoi). However, it remains necessary to determine the weight to be given to this evidence.

127. The prosecutor submitted even if I had concerns about the credibility or reliability of Ms Bol’s in court evidence, I could still safely rely on Ms Bol’s interview with Constable Maher (Exhibit 18). He noted that Ms Bol was interviewed “within minutes [of the incident occurring]… possibly up to 30 minutes but certainly less than that”. He submitted that the brief interval between the incident and Ms Bol’s interview made it less likely that what she told police was fabricated. He also noted that Ms Bol’s answers in the interview appeared to be spontaneous and unrehearsed and that she answered questions about what happened without hesitation. The prosecutor noted that Ms Bol did not know any of the accused, and that she provided only limited support for Ms Garang in the identification of the assailants. The prosecutor submitted that the limited assistance that Ms Bol’s account provided to Ms Garang was a strong indication that Exhibit 18 was not a false account that was the product of collusion.

128. In contrast, the accused submitted that the Court should not give any weight to either the interview (Exhibit 18) or Ms Bol’s evidence in Court in support of the prosecution case. The accused pointed to various inconsistencies in Ms Bol’s evidence, including: (i) Ms Bol told investigating police that she was assaulted with a metal pole to the chest (Exhibit 18, Q66), whereas her evidence to the Court was that she was struck to the legs; (ii) Ms Bol told investigating police that she was woken up by the sound of smashing glass (Exhibit 18, Q18), whereas her evidence to the Court was that she woke up to being hit by women in her bedroom; (iii) Ms Bol gave evidence in Court that she remembered hearing some of the assailants asking “Where’s the lighter?”, but she did not mention this to police in her interview; (iv) Ms Bol told investigating police that she did not see anyone pouring petrol within the apartment, but gave evidence in Court that she did see someone pouring petrol on Ms Garang; and (v) Ms Bol told investigating police that she did not know any of the intruders who came into the apartment (Exhibit 18, Q21), whereas her evidence to the Court was that she knew one of the intruders to be “Akima”, a person that she had previously lived with (I note that this evidence was excluded in the case of all accused except KK Makoi).

129. Viewed in isolation, I do not consider that the first two alleged inconsistencies necessarily shed doubt on the credibility of Ms Bol’s account in the interview. It is understandable that a person subject to a serious and unexpected assault may not remember three years later exactly how the assault began, or where they sustained most of the blows. In this respect, I note that Ms Bol was not seriously injured in the assault, and so would not have had a memory of ongoing pain to any specific part of her body. In the interview, Ms Bol appeared to be in distress and in some shock. The interview was short in duration and did not purport to be a complete account of everything that occurred in the course of the incident.

130. The third, fourth and fifth inconsistencies are more troubling. As to the third and fourth inconsistencies, in the interview, Constable Maher asked Ms Bol about the smell of petrol in the apartment. Ms Bol said that she thought that the assailants had poured petrol everywhere. She said that she didn’t see anyone pour petrol, but that she heard one of the girls was yelling “‘we just petrolled your house’ or something like that”. This account was directly inconsistent with Ms Bol’s evidence in Court that she saw someone pouring petrol on Ms Garang. Further, any discussion about a lighter in the context of petrol being poured would have occasioned real fear. In circumstances where Ms Bol was directly asked about the smell of petrol, it would be surprising for her not to have not mentioned what was said about the lighter, if she had in fact heard that statement. As Ms Bol departed before her evidence concluded, she was not fully questioned about these inconsistencies.

131. As to the fifth inconsistency, on the evening of the alleged incident, Constable Maher asked Ms Bol whether she knew any of the women who had entered the apartment and assaulted her and Ms Garang. Ms Bol unequivocally answered “No” in answer to this question. However, in her evidence at trial, Ms Bol said that she “knew Akima” and that they used to “live together in Melton”. As Ms Bol decamped before her cross-examination could conclude, the Court is left without an explanation for this important inconsistency. Of course, I bear in mind that this inconsistency only arises in the case of KK Makoi, as a result of exclusions in the cases of each of the other accused.

132. More generally however, although the inconsistencies raised by the accused do not appear to be significant when considered in isolation and may be explained by the effluxion of time, it is troubling that a number of those inconsistencies relate to topics in which there were also inconsistencies in Ms Garang’s evidence. For example, as outlined below, Ms Garang gave conflicting evidence as to whether someone had poured petrol on the sheets and blankets in her bedroom. Ms Garang also gave evidence that she had told investigating police on 22 June 2020 that Ms Dau was one of the assailants, whereas Constable Elder said that Ms Garang did not identify Akim Dau as one of the assailants until 24 June 2020.

133. A possible inference to be drawn from the alignment of these inconsistencies is that Ms Garang discussed her evidence with Ms Bol prior to Ms Bol giving evidence in the trial. Ms Bol accepted that in the years that have elapsed since the alleged offending she had conversations with Ms Garang and Achieu Bol and “probably” spoke about the incident with both of them. Because Ms Bol absconded before her evidence concluded, she could not be cross-examined about the scope of these conversations. In the absence of this cross-examination, it is not possible to determine whether Ms Bol’s memory was contaminated by what Ms Garang had told her, or whether the fact of any such discussion indicated that there had been collusion between the witnesses, which would be relevant to findings of the credibility of both witnesses.

134. I am also not able to determine why Ms Bol departed from her cross-examination at the time that she did. As I have noted above, given the delays in the trial, Ms Bol may have left because of frustrations with the trial process. Another possibility, given the question that was asked of her immediately before she disconnected the AVL, was that she left because of a recognition that at least some of the evidence she had given in court was untruthful or inaccurate. Ms Bol’s departure has left the Court in a position where it is not possible to decide between these possibilities (or any other).

135. As indicated in Annexure “B” and at [120] – [123] above, I have warned myself that, as Ms Bol’s evidence has not been tested through cross-examination, it may be less reliable than evidence that is tested by cross-examination. For this reason, I have approached both Ms Bol’s in court evidence and the account that she gave to Constable Maher on 22 June 2020 (Exhibit 18) with considerable caution.

136. Applying that caution in the present case, I have determined not to place any weight on Ms Bol’s evidence, either her in court evidence, or her interview with Constable Maher on 22 June 2020 in support of the prosecution case. There are unexplained inconsistencies between her sworn evidence in court and police interview. In my view it would be unsafe, and unfair, to the accused to place any weight on this evidence.

137. I will also take into account the possibility of collusion when assessing the weight to be placed on Ms Garang’s evidence in assessing Ms Garang’s credibility.

Ms Garang’s credibility Introduction

138. The prosecutor submitted that I should find that Ms Garang was a credible witness because: (i) She gave evidence in a plausible manner; (ii) Her in court evidence was supported by evidence of the immediate complaint that she made in the triple 0 call and to Constable Elder on 22 June 2020. In particular, the prosecution submitted that the fact and manner of Ms Garang’s complaint “makes it more likely that she [was] telling the truth about the accused Tabisa Makoi and KK Makoi about what they did”; and (iii) Her evidence was consistent with her complaint evidence, internally consistent and consistent with the objective evidence.

139. The accused each submitted that I should find that Ms Garang was not a credible witness because: (i) The manner in which Ms Garang gave evidence is indicative of dishonesty; (ii) Ms Garang has lied in Court and to police on various occasions (it was alleged that there are seven separate occasions when Ms Garang should be found to have lied to the Court or to police); (iii) She has prior convictions for dishonesty offences; (iv) Her accounts of the events at KK Makoi’s house on 21 June 2020 is implausible; (v) There are important inconsistencies (both internal and with objective evidence) in Ms Garang’s evidence and in her complaint to police; (vi) The possibility that Ms Garang colluded with Ms Bol has not been excluded, particularly in circumstances where Ms Bol absented herself before her cross-examination concluded.

140. I consider each of these matters below.

Ms Garang’s convictions

141. Ms Garang’s prior convictions are as follows: (a) On 5 July 2016, Ms Garang was convicted in the ACT Magistrates’ Court of an offence of obstructing/hindering a police investigation contrary to s 725 of the Criminal Code (“the obstruct/hinder offence”); and (b) On 14 March 2018, Ms Garang was sentenced in the Magistrates Court for possessing a driver’s licence issued to another person, contrary to s 30(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT) (“the Road Transport offence”).

142. I permitted the counsel for each of the accused to cross-examine Ms Garang pursuant to s 103 of the Evidence Act in relation to each of these convictions over the objection of the prosecutor. I did so because I was satisfied that these convictions had the capacity to substantially affect Ms Garang’s credibility. Of course, the question whether evidence has the capacity to affect a witness’ credibility is different to whether the evidence in fact affects the witness’ credibility.

143. The prosecution tendered the Agreed Statement of Facts for each of these offences. The Agreed Facts for the obstruct/hinder offence state that on 17 May 2014, Ms Garang attended the Mooseheads nightclub and was involved in an altercation. When interviewed by police in relation to that altercation, Ms Garang said that her name was “Kock-Kedhia Makoi”, and, when she was arrested, she provided a driver’s licence belonging to KK Makoi. In evidence, Ms Garang agreed that she attended court the following day under the name “Kock-Kedhia Makoi”. She said that she went to the police station to correct the situation “shortly after”. However, the Facts record that it was not until 23 July 2014 that Ms Garang finally admitted that she was the person who had provided KK Makoi’s drivers’ licence to police at the Mooseheads nightclub on 17 May 2014.

144. The Statement of Agreed Facts for the Road Transport offence disclose that Ms Garang was pulled over by police on 7 October 2017 for driving at night without headlights. Police discovered that Ms Garang was driving with a blood alcohol level of 1.186g per 210ml of breath, whilst on a learner’s licence, and was unaccompanied. When police asked Ms Garang for her licence, she produced a licence belonging to another person. Ms Garang gave evidence that she was driving her Aunt’s car, but did not accept that she had shown police her Aunt’s licence instead of her own.

145. Ms Garang did not unequivocally accept the accuracy of either Agreed Statement of Facts in cross-examination. In respect of the hinder/obstruct offence, she said that when police approached her at Mooseheads nightclub she “got scared” and used the ID that she had in her possession. In respect of the Road Transport offence, Ms Garang said that she “did not recall” giving her Aunt’s licence to police when asked for identification.

146. I acknowledge that the fact that a person used another person’s ID card (apparently with permission) as a younger person would not, of itself, necessarily undermine that person’s credibility. People can mature, particularly in their early adulthood, and a person’s willingness to use another’s identification is qualitatively different to the person falsely accusing another person under oath of serious offences. The obstruct/hinder offence is of more concern, particularly Ms Garang’s acknowledgement of having attended Court in KK Makoi’s name, although I acknowledge that this offence occurred almost 10 years ago.

147. KK Makoi’s counsel submitted that Ms Garang’s evidence about these convictions in cross-examination was of more significance. He noted that Ms Garang purported not to recall using her Aunt’s driver’s licence in connection with the Road Transport offence, and wrongly stated that she had attended police “shortly after” the events in question concerning the Mooseheads altercation so as to rectify the situation.

148. I agree that these matters are of concern. I will take these matters into account when I form my overall conclusions as to whether her evidence in respect of the present allegations should be accepted beyond reasonable doubt.

Ms Garang’s account of the events at KK Makoi’s house on 21 June 2020

149. I do not accept Ms Garang’s account of the events at KK Makoi’s house, when Ms Dau’s clothes were set on fire, and KK Makoi’s dog, Nipsy, was killed. Ms Garang told the Court that she first found out that Nipsy had died when KK Makoi called her on 21 June 2020 and accused her of running Nipsy over with her car.

150. Whilst I accept that it is possible that Ms Garang was not aware that KK Makoi’s dog, Nipsy, had been run over, I do not accept her evidence that she did not know how the bag containing Ms Dau’s clothes was set on fire. Ms Garang had gone to the house for the express purpose of returning Ms Dau’s clothes in circumstances where there had been a falling out between herself and Ms Dau. It is highly unlikely that Ms Dau, or any of Ms Dau’s friends, would have set fire to the backpack containing Ms Dau’s clothing.

151. Further, Ms Garang’s assertion that she and her companions did not discuss what had happened to the backpack on their drive home was implausible. It is extremely unlikely that Ms Garang and her friends did not discuss an event as surprising as the fact that the backpack containing clothes that they had just returned had immediately been set on fire. I do not accept that Ms Garang was giving truthful evidence when she said that she does not know who set fire to Ms Dau’s bag, or that there was no discussion about the lighting of the fire.

152. I accept that Ms Garang may have been reluctant to disclose what had happened to Ms Dau’s clothes if she or one or more of her friends had been responsible for their immolation. However, I also note that Ms Garang was advised about her right to make an objection under s 128 of the Evidence Act if she felt that her evidence may incriminate her. She did not object to giving evidence on this issue after this warning was provided.

153. Further, of particular significance is the manner in which Ms Garang gave this evidence. When telling the Court that she had “no idea” how Ms Dau’s bag had become alight and that she did not later discuss the burning bag with Achieu or Achol Bol on the drive home, Ms Garang was direct and forthright and did not appear to be nervous or evasive.

154. These matters are relevant to my assessment of Ms Garang’s credibility. I will also bear these matters in mind when assessing Ms Garang’s demeanour when giving evidence concerning the alleged offences.

Alleged inconsistencies in Ms Garang’s account of the alleged offending

155. The accused submit that there are a number of aspects of Ms Garang’s evidence concerning the offences which are implausible or inconsistent with objective evidence. These include: (a) Inconsistencies in account of injuries sustained: Ms Garang gave evidence that Tabisa Makoi punched her over 50 times in the head and that KK Makoi repeatedly hit her lower body with the wine rack. She also said that she briefly lost her vision, that her jaw was fractured and that she felt her lower back “go numb” during the attack. However, Ms Garang had no broken facial bones, cuts to her face or chipped teeth. In the triple 0 call, Ms Garang only mentioned the injury to her face. She also told ambulance officers she was unsure how many times she was hit in the head and was unable to confirm what she had been hit with. She did not mention any numbness in her lower back to the ambulance officers or to hospital staff: hospital notes report that Ms Garang only complained of having pain in her left leg. There is also no objective evidence of bruises or cuts to Ms Garang’s legs. The ambulance officers recorded that she had “nil vision impairment” and the hospital notes record no complaint being made about Ms Garang’s vision. (b) Inconsistencies in identification of accused: In her evidence in chief, Ms Garang explained that Achol Bol was not able to assist her during the assault because Achan Matot and “Jessie” were attacking Achol Bol and stopping her from coming into her room. Ms Garang said that she knew that Jessie’s first name was also “Achan”, but that she was not sure what Jessie’s surname was. Ms Garang was adamant that she told investigating police who attended on 22 June 2022 and that “Jessie” was one of the offenders. However, Constable Elder said that Ms Garang only identified KK Makoi and Tabisa Makoi on the night of 22 June 2022. (c) In cross-examination, Ms Garang said that she told the triple 0 call operator that she had seen Ms Dau damaging her property, but the audio and the transcript of the call only record Ms Garang having made reference to Tabisa Makoi by name and “some girl going around making problems”. (d) Inconsistencies concerning threats made: In her evidence in chief, Ms Garang did not initially give evidence of hearing any threats made by any of the accused. However, after the prosecution was granted leave to cross-examine Ms Garang, she recalled hearing Tabisa Makoi make a threat to kill her, and that KK Makoi had threatened to “burn her alive”. (e) Inconsistencies in phone calls: Ms Garang gave evidence that KK Makoi called her twice on 21 June 2020 and accused her of killing Nipsy and threatened her. However, call records for KK Makoi’s mobile phone do not record any phone calls from KK Makoi to Ms Garang, either on the evening of 21 June 2020 or the following morning. Those records do show that Ms Garang made a call to KK Makoi at 12:17pm on 22 June 2020 and that Ms Garang unsuccessfully attempted to call KK Makoi four times at 1:17pm on 22 June 2020. Those calls were unexplained. (f) Inconsistencies in evidence relating to killing of Nipsy: In her evidence, Ms Garang claimed that she had no knowledge of why KK Makoi and Tabisa Makoi were accusing her of killing KK Makoi’s dog whilst they assaulted her. Further, in a written statement to police dated 30 June 2020, Ms Garang did not mention being at the accused’s house the previous day. Ms Garang stated that Tabisa Makoi punched her and said “you killed my sister’s dog” but she subsequently gave evidence that when she heard this she was “confused and had no idea what she was referring to”. The accused submits that this evidence was inconsistent with Ms Garang’s evidence that KK Makoi had called her and threatened her for killing her dog Nipsy. (g) Inconsistencies in evidence relating to consumption of marijuana: In her evidence in chief, Ms Garang gave evidence that she did not smoke marijuana on 22 June 2020. However, the hospital records indicate that Ms Garang told doctors that she had consumed marijuana during the day. When this was pointed out to Ms Garang in cross-examination, she said that they had run out of marijuana, and that they were only drinking alcohol and smoking cigarettes.

156. The accused also submitted that Ms Garang’s account of the event has changed over time, and that these changes also indicate that her evidence was dishonest. In particular, the accused submitted that: (a) Ms Garang’s evidence as to when she saw Nyalat and Achan Matot differed, in particular, whether she saw them whilst they were in the apartment, or only whilst they were leaving the apartment. The account that she gave in her statement was different to that which she gave in her examination in chief, which was different to that which she gave in cross-examination. It was submitted that these differences were relevant to Ms Garang’s credibility as well as her reliability. (b) In her evidence in chief on 8 February 2023, Ms Garang said that she did not smell any petrol until after she had got out of her bed and that she did not see anyone actually pour petrol. However, in a conference on 30 January 2023, Ms Garang told the prosecutor and his instructing solicitor that the assailants had poured petrol “everywhere” in her room, including on her blanket and sheets. In cross-examination on 10 February 2022, Ms Garang said that there was petrol on the blanket in her room and on her sheets. However, the ambulance officers made no mention of petrol being on Ms Garang and no witnesses gave evidence of petrol being on Ms Garang or her blankets. Ambulance Officer Mengler agreed that he would have made a note if Ms Garang had been covered in petrol.

157. With regard to inconsistences in Ms Garang’s evidence, the prosecutor submitted that “with the distance of time of some three years later, it is hardly unsurprising memories are imperfect and recollections differ”. The prosecution submits that the differences in Ms Garang’s account are indicative of an “organic” recollection of what occurred.

158. In assessing the alleged inconsistencies, I bear in mind that Ms Garang was being asked to recall events that occurred some time ago. As Lord Pearce observed in Onassis v Vergottis [1968] 2 Lloyds Rep 403 at 431: It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active.

159. The same is true of an assault. The photographs taken by police on 22 June 2020 depict extensive damage. Practically every item within the apartment that could be broken was broken. The television, the glass table and mirrors were each smashed. Police photographs demonstrate that Ms Garang sustained an injury to her eye. It is understandable that over time, a victim of such an assault may come to believe that the injuries sustained were greater than they were in reality, or that she was struck more times, or to more parts of her body, than was in fact the case. I do not consider that the inconsistencies between Ms Garang’s evidence and her contemporaneous descriptions of the assault and her injuries to ambulance officers and hospital staff (cf [155(a)] above) are such as to shed doubt on the truthfulness of her account. Where there is inconsistency, I prefer Ms Garang’s contemporaneous accounts. Nor, given the effluxion of time, do I consider that the fact that Ms Garang did not recall smoking marijuana during the day of the alleged offences as undermining her credibility (cf [155(g)] above).

160. I also do not consider that there is an inconsistency between Ms Garang’s evidence that KK Makoi had called her accusing her of killing her dog and her evidence that when KK Makoi and Tabisa Makoi accused her of killing KK Makoi’s dog during the assault, she was “confused and had no idea what she was referring to” (cf [155(f)] above). I accept that Ms Garang may not have been aware that KK Makoi’s dog had been killed. In these circumstances, it is understandable that she may have been “confused” when she woke up to Tabisa Makoi assaulting her and accusing her of killing KK’s dog.

161. Similarly, Ms Garang’s failure to initially recall KK Makoi’s threats to her do not necessarily demonstrate a lack of honesty in her evidence concerning the commission of the offences (cf [155(d)] above). Despite the clear deficiencies in the AFP’s investigation of the water bottle (which the prosecution submitted contained the petrol), there is no question that petrol was in fact spilt in Ms Garang’s apartment. Constable Blackford, who attended Ms Garang’s apartment on the night of the alleged offending, gave evidence that he “[remembered] smelling a strong smell of petrol on the way up” the stairs to the apartment. Bodyworn footage of Constable Blackford also records comments between attending police officers asking each other where the smell of petrol is coming from. It was after Ms Garang’s memory had been refreshed by reading her statement (in which she stated that remembered hearing KK Makoi say three times “I’m going to burn you alive bitch”), that she remembered KK Makoi’s threat. Ms Garang explained that she had tried not to think about the threat. She also explained that it didn’t really kick in until after a few days that if the women had brought a lighter, things could have “gone really bad”. As the prosecutor submitted, this evidence: … suggested that it was as though her memory of her fortune that they forgot to bring the yellow lighter, that she wasn’t burned alive has now become her dominant memory; not what the accused said to her in the apartment and what she recounted in her statement only days later (TT431.30).

162. I accept that this is a possible explanation for Ms Garang’s failure to initially recall the threats in her evidence in chief. However, as I have noted above, it is of concern that this inconsistency related to a matter that was also the subject of inconsistencies in Ms Bol’s evidence (namely, threats surrounding the use of petrol in the apartment).

163. On careful consideration, I am satisfied that there is no actual inconsistency in Ms Garang’s evidence concerning the pouring of the petrol in her apartment. Ms Garang did not at any time give evidence that she saw any of the offenders in the act of pouring the petrol. Her statement to the prosecutor and his instructing solicitor was that the assailants “had poured” petrol throughout her apartment, not that she saw the assailants in the act of pouring petrol. In her evidence in chief, Ms Garang’s unequivocal evidence was that she did not see anyone pouring the petrol, rather, she first smelt the petrol after the offenders had left and she got out of bed. Ms Garang’s later statement to the prosecution and in cross-examination that she smelt petrol on her blanket and sheets was not inconsistent with her earlier evidence or with the evidence from police and ambulance officers that they did not recall Ms Garang having petrol on her body. Rather, it is consistent with the smell of petrol having spread throughout the apartment by the time Ms Garang returned from the hospital (cf [156(b)] above). Whilst I am of the view that this is not strictly an inconsistency, Ms Garang was cross-examined about this evidence as an inconsistency. It is of concern in these circumstances that this matter aligned with one of the inconsistencies in Ms Bol’s evidence (namely, whether she saw anyone pouring petrol in the apartment).

164. The differences in Ms Garang’s accounts as to when she saw Nyalat and Achan Matot (that is, whether in the apartment or leaving the apartment), whilst highly relevant to the reliability of Ms Garang’s identifications (which I consider further below) do not necessarily shed doubt on the credibility of her evidence concerning the circumstances of the assault (cf [156(a)] above). In the stress of a serious assault, it is understandable that the memory retained may have been one of seeing a particular person, rather than recalling precisely where the person was seen (of course, as addressed below, such a memory may not be a reliable memory).

165. However, other aspects of Ms Garang’s evidence have caused me more concern. In particular, the timing of Ms Garang’s identification of the accused has caused concern ([155(b)] above). In her evidence, Ms Garang was adamant that she had told police from the beginning the names of all of the people involved in the attack, including Ms Dau and another woman, Achan (“Jessie”) Deng (who was not charged). However, Constable Elder gave evidence that Ms Garang only named KK Makoi and Tabisa Makoi when he spoke to her whilst attending the unit following the triple 0 call. He said that she did not provide him with Ms Dau’s name until 24 June 2020. She did not provide police with Nyalat Matot or Achan Matot’s names until her written statement of 30 June 2020.

166. I do not accept Ms Garang’s evidence that she told police the names of all of the women involved when police attended her apartment on 22 June 2020 (cf [154](b) – (c)). I do take into account that Constable Elder described Ms Garang as “hysterical” at the time that he arrived and that, unlike Constable Maher, Constable Elder did not record his conversation with Ms Garang on bodyworn video. I accept that Ms Garang’s failure to name each of the women on the evening in question may be explained by her shock on the evening. However, there is no explanation for why Ms Garang named Akim Dau on 24 June 2020, and not Achan Matot or Nyalat Matot. Nor is there any explanation for why Ms Garang failed to mention Achan (“Jessie”) Deng in her written statement and only first mentioned her when cross-examined by counsel for Tabisa Makoi.

167. Similarly, whilst the discrepancy in Ms Garang’s recollection of the calls made and the call records may be explained by the effluxion of time, there are other aspects of the calls that remain unexplained (cf 154(e) above). In particular, I accept that Ms Garang may have been mistaken in recalling the call made on 21 June 2020 concerning the threats as having been made from KK Makoi’s phone. The call records indicate that a call was made at 20:26 on 21 June 2020 from Tabisa Makoi’s phone. This is consistent with Ms Garang’s evidence that Tabisa was also on the line at this time.

168. However, the call records also indicate that various text messages were exchanged between Ms Garang and Tabisa Makoi shortly after the incident. Ms Garang did not recall sending these text messages, or what they said. It does not appear that Ms Garang ever brought these text messages to the attention of police, even though those texts were exchanged soon after the police’s arrival at Ms Garang’s apartment.

169. In short, whilst I do not consider that the inconsistencies in Ms Garang’s evidence are such as to necessarily shed doubt on her credibility, aspects of her evidence are unexplained. I will take these unexplained aspects of her evidence into account in assessing her credibility.

Immediate complaint

170. Ms Garang immediately called triple 0 to report the offences. She also made an immediate complaint to investigating police who attended in response to the triple 0 call.

171. As outlined in Annexure “B”, I have directed myself that this evidence of complaint may be used in two ways. First, it may be regarded as additional evidence of the events described by Ms Garang in Court. Second, it may be relevant to the truthfulness of Ms Garang’s evidence in Court.

172. I bear in mind that just because a person says something on more than one occasion it does not mean that what is said is necessarily true or reliable. A false or inaccurate statement does not become more reliable just because it is repeated.

173. In the present case, I consider that the complaint evidence is additional evidence of the events described by Ms Garang in court. In particular, I consider that Ms Garang’s initial complaints are more reliable than her in court evidence. It was made immediately after the events in question, and, as discussed further below, at a time when there had been little opportunity for collusion between herself and Ms Bol.

174. I have also considered the complaint evidence in assessing the truthfulness of Ms Garang’s evidence in court. I have carefully considered whether Ms Garang’s conduct in making the complaint was consistent with the allegations made. She made the triple 0 call immediately, indeed, the assailants can be heard leaving the property in the background of the triple 0 call. In the triple 0 call, Ms Garang sounds extremely distressed. She described the property that had been damaged, and also described waking to people assaulting her. Constable Elder also described Ms Garang as appearing “fairly hysterical” when he attended the apartment. Ms Garang’s demeanour as heard in the call and as described by Constable Elder, are consistent with her complaints.

175. I have also carefully considered whether there were any inconsistencies between these early complaints and Ms Garang’s in court evidence. For the reasons outlined above, I do not consider that the alleged inconsistencies between Ms Garang’s early complaints and her evidence in court necessarily undermines the truthfulness of her evidence overall. However, her failure to mention Achan Matot, Nyalat Matot and Akim Dau in these early complaints is relevant to the credibility and the reliability of her evidence identifying each of these accused. Ms Garang’s demeanour when giving evidence concerning the alleged offences

176. The prosecutor submitted that Ms Garang gave evidence in a plausible manner. He submitted that Ms Garang appeared to be attempting to tell the truth, that her evidence was not overstated, and that she did not “shy away” from the limits of her own recollection.

177. The accused submitted that Ms Garang’s manner of giving evidence was evasive. In particular, the accused pointed to Ms Garang’s apparent reluctance to provide information concerning the lunch that she had during the day of the alleged offences, including the names of the people who were present at that lunch. I agree that Ms Garang did appear to be reluctant to provide this information.

178. Whilst I agree with the prosecutor that, Ms Garang generally gave evidence about the alleged offences in a forthright manner, she also gave evidence about matters which I do not accept as true in the same manner. In these circumstances, I have not placed weight upon the manner in which Ms Garang gave evidence as support for her credibility.

The possibility of collusion between Ms Garang and Ms Bol

179. As outlined above, it is troubling that there is an alignment of some of the inconsistencies in Ms Bol’s evidence and Ms Garang’s evidence. A possible inference to be drawn from the alignment of these inconsistencies is that Ms Garang discussed her evidence with Ms Bol prior to Ms Bol giving evidence in the trial. In view of Ms Bol’s evidence, I consider it a realistic possibility that the two discussed the events in question before the trial.

180. However, such communication, assuming it to have occurred, need not adversely impact Ms Garang’s credibility. Ms Garang was not asked whether she had spoken to Ms Bol in the lead up to the trial, nor was she asked whether she had ever been told not to discuss her evidence with Ms Bol. It is not surprising that friends who have undergone a common traumatic experience may subsequently talk about that experience. The fact of such discussion does not of itself lead to an inference that the two had colluded to give false evidence. Rather, it is necessary to look to the broader circumstances.

181. The prosecutor submitted that the proposition that Ms Garang and Ms Bol had colluded to fabricate their evidence prior to the trial was not strong. He submitted that a theory of collusion does not account for Ms Garang’s immediate triple 0 call and her contemporaneous statement to police, nor does it account for her police statement provided to police “eight or so days later”. The prosecutor also submitted that the suggestion that Ms Garang and Ms Bol colluded does not accord with “the other evidence” that the prosecution relies on, notably, the call charge records, which, the prosecution submits clearly indicate the accused knew and “were apparently friendly” with each other and that they could have acted in a group to offend against the complainant.

182. I do not consider that the evidence that the accused were friends assists in determining whether the possibility of collusion impacts upon my assessment of Ms Garang’s credibility. However, I agree with the prosecutor that the possibility of collusion before police attended the apartment was limited. It is apparent from the neighbour’s evidence (which was that police attended shortly after the women left) and from the audio of Ms Garang’s call to police (in which loud voices are heard in the background of the call), that police arrived very shortly after the incident in question. I also bear in mind that Ms Bol’s contemporaneous interview provide relatively little support for Ms Garang’s identifications of the offenders. Other than stating that she had heard the names “Achan” and “KK”, Ms Bol did not identify any of the intruders in her contemporaneous police interview.

183. However, I bear in mind that, as a result of Ms Bol’s departure, cross-examination on this topic was not able to be concluded. I will bear this in mind in my assessment of whether the prosecution has proved each of the charges against each accused beyond reasonable doubt.

Conclusion

184. Ms Garang’s account was plausible. It was supported by immediate complaint, both in her triple 0 call and to the police officers who immediately attended. Her descriptions of the assault and the damage are broadly consistent with the observations made by police of her injuries and the damage to the apartment. In my view, none of the inconsistencies between Ms Garang’s evidence and her previous statements indicate that the evidence that she gave as to the commission of the offences was false. Rather, I consider that those inconsistencies may generally be explained by the effluxion of time between the events in question and the giving of evidence in this Court.

185. Nonetheless, I have concerns about Ms Garang’s credibility more generally. These concerns arise from a combination of the following: (a) Aspects of Ms Garang’s evidence, in particular, her failure to name various of the accused (particularly Achan (“Jessie”)), or to provide police with the text messages exchanged between herself and Tabisa Makoi are unexplained. (b) She has previous convictions for dishonesty offences, including falsely identifying herself as another person (indeed, one of the current accused) in court. (c) As outlined above, I do not accept Ms Garang’s evidence concerning all of the circumstances of the previous offences, or the circumstances surrounding the burning of Ms Dau’s bag. (d) Whilst I agree with the prosecutor that Ms Garang gave evidence about the alleged offences in a forthright manner, she also gave evidence about matters which I do not accept in the same manner. In these circumstances, I do not place weight on the manner in which Ms Garang gave evidence. (e) Whilst I accept that there was little opportunity for collusion prior to Ms Garang’s call to triple 0 and her complaint to police when they arrived at her apartment, Ms Bol’s departure from the trial meant that this possibility could not be fully addressed in cross-examination.

186. As indicated in Annexure “B”, I have borne in mind that I am not required to accept a witness wholly or to reject a witness wholly. I can accept that part of a witness’ evidence that I consider worthy of acceptance and I can reject the rest of that witness’ evidence if I consider it unworthy of acceptance.

187. However, in the present case, my findings concerning Ms Garang’s lack of honesty concerning the circumstances surrounding the return of Ms Dau’s bag are significant in respect of my approach to her evidence generally. As Kirk JA recently observed in Barney v The Queen [2023] NSWCCA 85 at [23]: If a witness is prepared to be less than honest in giving evidence in a significant way, despite their serious obligations to be so, then it may be difficult to delineate what evidence is believable and what is not. As a result, all their evidence supporting the side they have an interest in supporting may be of suspect value to the extent it is uncorroborated, unless it can be explained and quarantined or discounted.

188. In other words, although I have found that Ms Garang’s evidence concerning the commission of the offences was plausible and broadly consistent with the objective evidence, in view of the matters outlined above, I consider that I must exercise particular caution before accepting the truth of her evidence in respect of the commission of the offences beyond reasonable doubt. In particular, I am of the view that it is necessary for me to carefully consider whether the evidence Ms Garang gave in respect of each accused is supported by independent and reliable evidence. The reliability of Ms Garang’s identification evidence concerning Achan Matot, Nyalat Matot and Akim Dau

Introduction

189. It is necessary for me to consider not only the credibility of Ms Garang’s evidence, but also the reliability of her evidence. In particular, I must consider the reliability of Ms Garang’s identification of Achan Matot, Nyalat Matot and Akim Dau.

Reliability of identifications of Achan Matot and Nyalat Matot

190. Ms Garang said that Achan Matot and Nyalat Matot were in her living room for the duration of the offences.

191. In her evidence, Ms Garang gave different accounts of where and when she saw Nyalat and Achan Matot. At various points in her evidence, Ms Garang testified that she “first” saw Nyalat and Achan Matot as they were leaving her apartment. For example, when asked whether she saw “anyone else” in the apartment apart from KK Makoi, Tabisa Makoi and Akim Dau, Ms Garang responded: Yes, I saw Nyalat Matot and I saw Achan and as I was – when I – as they were leaving the hourse that’s when I got up and I – that I seen – I saw Nyalat, Achan Matot and Achan, the other Achan. What were they doing? – They were just leaving. I suppose if I could ask you this, where were you when you first saw them? What were you doing? --- So Tabisa got off me, KK hit me and then they went out first, out – leaving the house and I just got up and I walked towards my door and held the door and that’s when I saw Nyalat, Achan and Achan and everybody just ran out. I was still standing there. That’s when I heard about the lighter situation. (emphasis added)

192. Ms Garang repeated this evidence when initially cross-examined by counsel for Nyalat Matot. When asked “Your evidence was that you first saw my client, Nyalat Matot, as she was running out of the front door of the house?”, Ms Garang answered “Yes, as they were leaving”.

193. However, later in that cross-examination, Ms Garang gave the following evidence: Now do you agree with me that you’ve given evidence in a number of different ways and at different times during this trial that you saw and recognised Nyalot Matot after the attack and as the girls were leaving? – No. I saw her while I was in my room while Tabisa was still on me. I looked out into the living area and I saw Nyalot and I saw Achan.

194. When asked about the inconsistency between these answers, Ms Garang reiterated, contrary to her previous evidence, that she was “still in the bed” when she saw Nyalat and Achan.

195. As indicated in Annexure “B”, I have given myself an identification warning in respect of Ms Garang’s evidence in respect of her identification of Nyalat and Achan Matot. Various aspects of that direction have particular significance in assessing the reliability of Ms Garang’s identification of each.

196. On either of Ms Garang’s accounts, that is, whether seen from the bedroom or from the doorway whilst the offenders were leaving, there are real concerns about the reliability of Ms Garang’s identification of Achan and Nyalat Matot.

197. Ms Garang would have had very little opportunity to make the alleged observations of Achan and Nyalat Matot whilst she was in her bed. Ms Garang’s evidence was that she saw Achan and Nyalat Matot through the doorway and into the living room. At this time, Ms Garang said that Tabisa Makoi was on top of her, straddling her chest and repeatedly inflicting blows to Ms Garang’s head. Ms Garang was lying face up on the bed. There were other people in the room. The bedroom was small and crowded.

198. Ms Garang also would have had very little opportunity to make the alleged observations of Achan and Nyalat Matot when they were leaving the apartment. As counsel for Achan Matot submitted, whilst standing at the bedroom door, Ms Garang’s view of the fleeing offenders would have been limited to the back, or possibly the side, of the offenders’ heads. There were a number of women who were all leaving the small apartment at the same time, and Ms Garang would have had a limited ability to discern any particular woman from the rest.

199. On either account, Ms Garang’s view was significantly obscured and she had little time in which to make the identifications in question. She was extremely distressed and in pain. She reported briefly losing consciousness at a time proximate to the identification. Her home was being destroyed. Glass was being broken. People were yelling. She was being threatened. Each of these matters would have had a significant effect on Ms Garang’s ability to make observations and to store those observations in her memory.

200. Ms Garang did not know Achan Matot very well. She only knew her as Nyalat’s younger sister. In her evidence, she was not able to describe Achan Matot’s appearance.

201. Ms Garang said that she had told police about seeing Achan Matot when she was first interviewed by police immediately following the offences. However, Ms Garang did not mention Achan Matot’s name until she provided a written statement on 30 June 2020.

202. Even more significantly, Ms Garang gave evidence that she and Ms Bol discussed the offences immediately after the offenders left. As Achan Matot’s counsel submitted, given that Ms Garang knew “the other Achan” as Jessie, if Ms Bol had referred to hearing the name “Achan” spoken by one or more of the assailants, Ms Garang may well have concluded that Achan Matot was one of the offenders. This information may have caused Ms Garang to wrongly infer that Achan Matot (rather than Jessie) was one of the offenders that she saw in or leaving her apartment.

203. As noted in Annexure “B”, special caution is necessary before accepting identification evidence because of the possibility that a witness may be mistaken in their identification of a person accused of a crime. The experience of the criminal courts over the years, both in Australia and overseas, has demonstrated that identification evidence may turn out to be unreliable. There have been some notorious cases over the years in which evidence of identification has been demonstrated to be wrong after innocent people have been convicted.

204. The prosecutor acknowledged that Ms Garang had given inconsistent evidence about when and where she had seen Nyalat and Achan Matot during the course of the offences, but submitted that her evidence: … suggests that the mental image [Ms Garang] held of [Nyalat and Achan Matot] was still with her, even if, with the distance of time, she was less certain about the sequence or timing of when it is she saw them.

205. The difficulty is that the factors that cause the identifications to be unreliable apply equally to the reliability of any such “mental image" that may have been held.

206. In the present case, the limited opportunity that Ms Garang had to make observations, the circumstances surrounding the observations, and the real possibility of transference, has led me to conclude that Ms Garang’s identification of Achan Matot as one of the offenders is not reliable.

207. Ms Garang had a longer and deeper relationship with Nyalat Matot than she did with Nyalat’s younger sister, Achan. However, other than Ms Garang’s greater familiarity with Nyalat, the matters which adversely affected the reliability of Ms Garang’s identification of Achan Matot apply with equal force to her identification of Nyalat Matot. Ms Garang gave evidence that the first time she saw Nyalat Matot was when Nyalat was running out of her apartment following the alleged home invasion. In particular, as outlined above, Ms Garang had very limited opportunity to make her observations of Nyalat Matot and the identification was made under circumstances of acute stress. Accordingly, I have also concluded that Ms Garang’s identification of Nyalat Matot is also unreliable.

Reliability of the identification of Akim Dau

208. The position in respect of Ms Dau is different. In contrast to the identifications of Nyalat and Achan Matot, Ms Garang’s evidence was that Ms Dau was one of the offenders in her bedroom. She said that Ms Dau was “talking down on her”, and that she saw Ms Dau rifling through her cupboards. Ms Dau was well known to Ms Garang. Ms Garang met Ms Dau through their mutual friend, Achieu Bol. Prior to their falling out, Ms Dau had lived with Ms Garang for approximately 2-3 months.

209. I have carefully directed myself in respect of this identification. However, in circumstances where Ms Dau was in close physical proximity to Ms Garang and where she was well known to Ms Garang, I do not consider that the same issues of reliability arise in respect of Ms Garang’s identification of Ms Dau as arise in respect of Nyalat Matot and Achan Matot.

Findings in respect of the individual accused

Introduction

210. I have no doubt that Ms Garang was assaulted or that her property was damaged. Ms Garang’s injuries were seen, and photographed by police, as was the extensive damage to the property in her apartment. The neighbour’s evidence also demonstrates that the offences occurred shortly before police arrived.

211. The real issue in the case against each of the accused is whether the prosecution has proved beyond reasonable doubt that each of the accused were one of the persons in the apartment, who either inflicted the injuries and damage, or was in a joint enterprise with the person(s) who did. It is to this question that I now turn.

Kock-Kedhia Maker (“KK”) Makoi

212. The accused KK Makoi does not have any prior convictions for burglary or assault. As I have outlined in Annexure “B”, I have taken into account this absence of convictions in determining whether or not the prosecution has proved her guilt beyond reasonable doubt. However, in doing so, I have borne in mind that her good character and reputation does not provide her with an excuse or a defence if the prosecution has otherwise proved her guilt beyond reasonable doubt. Every offender has committed a first offence and, before doing so, was a person of good character and reputation.

213. As outlined above, I have given myself a Murray direction and a Jovanovic direction in respect of the case against KK Makoi.

214. As outlined above, Ms Garang gave clear evidence that KK Makoi was one of the assailants. For the reasons outlined above, I do not accept that the inconsistencies in Ms Garang’s evidence indicate that her evidence concerning the commission of the offences was false. Rather, I consider those inconsistencies are largely explicable by the effluxion of time between the events in question and the giving of evidence in this Court.

215. However, for the reasons outlined at [185] above, I hold some residual concerns about Ms Garang’s credibility as a witness. In view of these concerns, and bearing in mind the high standard of proof, I have carefully considered whether there is evidence independent of Ms Garang that excludes the possibility that the group of people who assaulted Ms Garang and damaged her property did not include KK Makoi.

216. In this respect, I note that counsel for KK Makoi posited an alternative hypothesis consistent with innocence, namely that the person(s) who inflicted the injuries and the damage were the people who had been drinking at Ms Garang’s apartment with her earlier in the afternoon on 22 June 2020. In particular, counsel for KK Makoi noted that Ms Garang had been reluctant to provide information about who had been present at her apartment earlier that day. Counsel also noted that the neighbour told Constable Elder that there was a male amongst the group of African women.

217. The evidence of the neighbour excludes this hypothesis as a reasonable possibility. The neighbour’s evidence also excludes any possibility that the group who assaulted Ms Garang and destroyed her property did not include KK Makoi.

218. The neighbour was an independent witness. Whilst she was “friendly enough to keep the peace” with other tenants in the block, the neighbour was not friends with, and did not socialise with Ms Garang or any of the other prosecution witnesses. She never spoke to Ms Garang or anyone else who lived with her about what happened at Ms Garang’s apartment on 22 June 2020. Her evidence was appropriately not the subject of any significant challenge by any of the accused.

219. As outlined above, the neighbour gave evidence that she heard five minutes of yelling coming from Ms Garang’s apartment. When she looked out, she saw “around six to seven” women who were “African in appearance”. She heard a female voice say “you killed my dog” and “I’m going to kill you”. On the evening of the alleged incident, she told Constable Elder that she had also heard a voice say “you killed my effing dog”, “this is not over” and “we’ll be back.” This evidence provides powerful support for the prosecution case, particularly when viewed against the evidence that, on 21 June 2020, police had been called to KK Makoi’s house, where KK Makoi showed police the body of her dog Nipsy, and told them that Ms Garang was responsible for his death. KK Makoi gave the officers Ms Garang’s full name and address, demonstrating that she knew where Ms Garang lived.

220. I am satisfied that the words heard by the neighbour were spoken by KK Makoi. I am satisfied beyond reasonable doubt that KK Makoi was one of the group of persons who were present when Ms Garang’s apartment was damaged and Ms Garang was assaulted.

221. I also consider that Ms Garang’s evidence that KK Makoi inflicted injuries upon her, and that KK Makoi was a part of a group of women who caused extensive damage to her property is sufficiently supported for me to be satisfied of that evidence beyond reasonable doubt. The neighbour called triple 0 after she heard a commotion in Ms Garang’s apartment. Police arrived at the apartment within approximately 10 minutes and documented the extensive damage to Ms Garang’s property and a serious injury to her eye. The inescapable inference to be drawn from this sequence of events is that the group of African women (and possibly a male) seen by the neighbour were responsible for the infliction of the damage to the property and the injury to Ms Garang.

222. The independent evidence of the neighbour also supports Ms Garang’s evidence that KK Makoi was an active member of the group who caused the damage to Ms Garang’s property and assaulted her. The words heard by the neighbour included the statement “This is not over”, “You killed my dog” and “We’ll be back.” These words confirm that the group was acting together (“we’ll be back” (emphasis added)); that the group had inflicted the assault and the damage (each of which are documented in the photos and bodyworn footage) that had just occurred (“this is not over”); and that the assault and damage had been undertaken by the group in retaliation for Ms Garang’s perceived involvement in the killing of KK Makoi’s dog (“you killed my dog”).

223. It is now necessary to separately consider the individual counts on the indictment relating to KK Makoi.

Count 1 Aggravated Burglary

224. The prosecution has charged each accused with an offence of aggravated burglary as a principal with an alternative allegation of aggravated burglary by way of joint commission. Like Refshauge J in R v Winters [2022] ACTSC 371 at [50], I do not see how the alternative allegation of joint commission adds anything to an offence of aggravated burglary where the circumstance of aggravation is of acting in company, as both offences require “participation in a common purpose”.

225. The elements of the offence of aggravated burglary (as a principal) are: 1. The accused entered or remained in a building (conduct) Fault: intention 2. The accused was a trespasser (circumstance) Fault: reckless 3. At the time of entering or remaining, the accused intended to commit an offence that involved causing harm or threatening to cause harm to anyone in the building, or an offence in the building that involved causing damage to property and was punishable by imprisonment for 5 years or more (ulterior intent) Fault: intention Note: absolute liability applies to a damage property offence being punishable by imprisonment for 5 years or more 4. The accused was in company (circumstance) Fault: reckless

226. On the basis of Ms Garang’s evidence, supported by the neighbour’s evidence, I am satisfied beyond reasonable doubt that KK Makoi entered and remained in Ms Garang’s apartment (element 1).

227. On the basis of Ms Garang’s evidence, supported by the neighbour’s evidence, I am satisfied that, at the time of entering and whilst she remained, neither Ms Garang, nor any other occupant, consented to KK Makoi entering or remaining in the property (element 2). In making this finding, I have borne in mind that there is no reliable evidence before the Court as to whether Achieu Bol locked the door when she left the apartment that evening. However, this element would still be satisfied if KK Makoi entered the apartment through a door that was shut but unlocked, and then remained in the apartment. It was faintly submitted by some of the accused’s counsel that there was a possibility that Achieu Bol may have let the assailants into the apartment as she left for the evening. I do not accept that this was a reasonable possibility. Achieu was Ms Garang’s flatmate and friend. She had been with Ms Garang and Achol Bol when the bag was returned (and burnt) on 21 June 2020. I do not accept that she would have invited a large group of women (who were angry about what had occurred on 21 June 2020) into the apartment without alerting Ms Garang. Accordingly, the second element is also established.

228. I am satisfied beyond reasonable doubt that, at all times whilst she was in the property, KK Makoi intended to commit offences of causing harm to Ms Garang and damaging her property, being an offence punishable by imprisonment for 5 years or more (element 3). I make this finding on the basis of Ms Garang’s evidence, supported by the neighbour’s evidence together with the evidence of the police officers, the photographs, the hospital records, as to the damage occasioned to Ms Garang’s apartment and the injuries she sustained.

229. On the basis of the same evidence, I am also satisfied beyond reasonable doubt that, at the time of the offences, KK Makoi was in the presence of other persons (element 4).

230. Accordingly, I am satisfied beyond reasonable doubt that KK Makoi is guilty of aggravated burglary as a principal. I would also have been satisfied beyond reasonable doubt that KK Makoi is guilty of this offence by way of joint commission.

Count 2: Assault occasioning actual bodily harm

231. I am also satisfied that KK Makoi is guilty of the offence of assault occasioning actual bodily harm to Ms Garang by way of joint commission pursuant to s 45A of the Criminal Code.

232. The elements of assault occasioning actual bodily harm by way of joint commission are: (a) There was an agreement between two or more people (one of whom was the accused) that one or more of them would assault Ms Garang (would deliberately apply force to her) (b) The person and at least one other party to the agreement intended that the offence would be committed. (c) The agreed offence, or an offence of the same type, was committed in that the accused or another person who was party to the agreement deliberately applied force to Achol Garang which caused her actual bodily harm. (d) At the time of the conduct, the accused and at least one other party to the agreement intended that an offence would be committed under the agreement. (e) The application of force caused actual bodily harm.

233. On the basis of the evidence of Ms Garang, supported by the photographic evidence of injuries inflicted, together with Ms Garang’s report to the ambulance service and the hospital, I am satisfied beyond reasonable doubt that Ms Garang was assaulted, in that she was punched in the face and struck to the legs. On the basis of the same evidence, I am satisfied beyond reasonable doubt that the assault caused Ms Garang actual bodily harm, namely bruising and swelling to her eye and temple, and bruising to her left foot.

234. The concept of an “agreement” in s 45A of the Criminal Code is “intended to be broad in its meaning and [to] capture any agreement, arrangement or understanding that can be implied or inferred taking into account all of the circumstances”: Explanatory Statement for the Crimes (Serious Organised Crime) Amendment Bill 2010 (ACT). It includes both express and implied agreements, including “non-verbal understandings communicated through a person’s actions, gestures, or implied through other means”.

235. Bearing these matters in mind, I am satisfied beyond reasonable doubt that KK Makoi was a party to an agreement to assault Ms Garang. As outlined above, both KK Makoi’s conduct in jointly assaulting Ms Garang (as described by Ms Garang in her evidence) and the words heard by the neighbour establish this element beyond reasonable doubt.

236. Accordingly, I am satisfied beyond reasonable doubt that: (i) There was an agreement between two or more people (one of whom was KK Makoi) that one or more of them would assault Ms Garang (would deliberately apply force to her); (ii) KK Makoi and at least one other party to the agreement intended that the offence would be committed; (iii) The agreed offence was committed in that KK Makoi or another person who was party to the agreement deliberately applied force to Achol Garang which caused her actual bodily harm; and (iv) At the time of the conduct, KK Makoi and at least one other party to the agreement intended that an offence would be committed under the agreement.

Count 3: Damage property

237. The extensive damage to property in Ms Garang’s apartment is shown in the photographs taken by police and in the bodyworn footage of Constable Blackford.

238. Ms Garang did not allege that KK Makoi personally damaged her property. Rather, her evidence was that the property was damaged by the women in the lounge room whilst KK Makoi was assaulting her in her bedroom.

239. However, it is clear both from the concerted actions that were taken by the group, and from the words spoken by KK Makoi as the group was leaving the apartment (“this is not over…. We’ll be back”) that KK Makoi was a party to an agreement (which was implied, if not express) to occasion damage to Ms Garang’s property in retaliation for the killing of KK Makoi’s dog.

240. On the basis of the evidence of Ms Garang, supported by the evidence of the neighbour and police, I am also satisfied that KK Makoi is guilty of the offence of damage property by joint commission. In particular, I am satisfied beyond reasonable doubt that: (i) There was an agreement between two or more people (one of whom was KK Makoi) that one or more of them would cause damage to property belonging to Achol Garang; (ii) KK Makoi and at least one other party to the agreement intended that the offence would be committed; (iii) The agreed offence was committed in that KK Makoi or another party to the agreement deliberately caused damage to property belonging to Achol Garang; and (iv) At the time when the offence was committed, KK Makoi and at least one other party to the agreement intended that an offence would be committed under the agreement.

Count 4: Threat to kill

241. The prosecutor particularised the following threats as giving rise to this count: (i) Tabisa Makoi’s threat, “I’m going to fucking kill you today”. (ii) KK Makoi’s threat, “I’m going to burn you alive, bitch”.

242. The prosecutor expressly disclaimed any reliance on the threat heard by the neighbour (“You killed my dog. I’m going to kill you”) as giving rise to this count.

243. As stated above, the standard of proof in criminal proceedings, of beyond reasonable doubt, is very high. Ms Garang did not complain of this threat to Constable Elder when he interviewed her on the evening of the incident. Ms Garang also did not initially recall the making of the threats in her evidence in chief in these proceedings. She provided a credible explanation for her failure to recall the threats (namely, that the memory was a traumatic memory that she had attempted to block out). However, it is to be borne in mind that both threats, and particularly the threat alleged to have been made by KK Makoi (namely, that she would “burn [Ms Garang] alive”), concern matters which touch upon aspects of Ms Bol’s evidence that were inconsistent with her interview with police (such as whether the assailants poured petrol on Ms Garang). As outlined above, Ms Bol’s departure deprived the accused of the ability to cross-examine Ms Bol about the possibility of collusion on these issues.

244. On the basis of the neighbour’s evidence, I am satisfied that KK Makoi made a threat to kill Ms Garang as the group left Ms Garang’s apartment. In view of this threat, I consider that it is likely that KK Makoi may have made other threats to Ms Garang whilst in the apartment. However, I do not consider that the neighbour’s evidence provides sufficient independent support for me to be satisfied beyond reasonable doubt of Ms Garang’s evidence as to the threats said to have been made in the apartment.

245. In all of the circumstances, I am not satisfied beyond reasonable doubt that either of the particularised threats were made by KK Makoi, Tabisa Makoi or any other person. Accordingly, I find KK Makoi not guilty of the offence of threat to kill, either as a principal, or by way of joint commission.

Beich Maker (“Tabisa”) Makoi Introduction

246. I have also carefully considered whether Ms Garang’s evidence that Tabisa Makoi was one of the assailants is supported by independent and reliable evidence.

247. The prosecution submitted that Ms Garang’s evidence in respect of Tabisa Makoi was supported by the following forensic evidence: (i) The fingerprints found on the wine rack; (ii) The evidence that one of the offenders had a long braid, and forensic evidence that Tabisa Makoi had later used a braid hair extension; and (iii) The DNA profile obtained from a water bottle inside the apartment.

248. The prosecution also observed that Ms Garang mentioned Tabisa as being one of the assailants in her triple 0 call and that Ms Garang named Tabisa as one of the assailants when she was interviewed by Constable Elder immediately after the incident.

249. Each of these matters are considered below.

Fingerprint evidence

250. I do not accept that the fingerprint evidence supports Ms Garang’s evidence. Ms Nicholson’s expert report records that the fingerprints located on the water bottle and the wine rack had “insufficient detail for comparison”. In her oral evidence, Ms Nicholson explained that this meant that the fingerprints were not “inconsistent” with those of Tabisa Makoi, but that there was not enough information in the fingerprint to positively identify or eliminate her.

251. The prosecutor acknowledged that this evidence was “not an identification” or an “exclusion” but submitted that it remained a “circumstance” that could be taken into account in support of the prosecution case.

252. Whilst particular facts do not need to be proved to any particular standard, I do not consider that this evidence, which is entirely neutral in character, supports the prosecution case against Tabisa Makoi. Braid extensions

253. Nor do I accept that the evidence of braid hair extensions supports the prosecution case against Tabisa Makoi.

254. It will be recalled that the neighbour gave evidence that she saw that one of the offenders had a number of brightly coloured braids in her hair, which included a purple coloured braid that “went down just past her bum”.

255. In the photograph taken by police on 12 May 2022, Tabisa Makoi is shown to have a long purple and white braid that appeared to go down to her waist. However, as outlined above, when Constable Elder had been in contact with Tabisa Makoi a couple of weeks earlier, she had short hair that was dyed red and did not have the braid.

256. The prosecutor submitted that I could draw an inference from the forensic evidence that Tabisa Makoi “uses braid hair extensions”. It is difficult to see how such an inference could be drawn other than via tendency reasoning (namely that Tabisa Makoi had a tendency to use braid hair extensions). No tendency notice was filed or served, and, if such a tendency notice had been issued, in my view, the evidence could not have met the threshold for admission under ss 97 and 101 of the Evidence Act.

257. Even if the process of reasoning is not strictly tendency reasoning, I do not accept that the evidence supports the prosecution case against Tabisa Makoi. The use of hair extensions by women (particularly African women), is not uncommon. The fact that Tabisa Makoi was seen to have a braid in May 2022 does not, in my view, constitute support for the prosecution case that Tabisa Makoi was the woman with a braid seen by the neighbour in June 2020, particularly given that Tabisa Makoi had short red hair and no braid in April 2022.

DNA on water bottle

258. The DNA expert, Mr Schwartz, gave evidence that a mixed DNA profile was located on the water bottle, and that Tabisa Makoi “cannot be excluded as a contributor to this profile”. He said that the likelihood ratio was that it was “at least 9 million times more likely [that Tabisa Makoi] was one of two contributors to the mixed DNA profile than if it originated from two unknown individuals, unrelated to [Tabisa Makoi] selected at random from the Australian Caucasian sub-population”.

259. As Tabisa Makoi’s counsel submitted, Mr Schwartz was unable to identify where on the bottle the DNA profile had been located, or how or when Tabisa Makoi’s DNA had been deposited on the bottle. In other words, this evidence proves only that a bottle of water than Tabisa had come into contact with was brought into the apartment.

260. For the reasons outlined above, I am satisfied beyond reasonable doubt that KK Makoi was one of the offenders responsible for the assault and damage to property. Tabisa Makoi was KK Makoi’s sister, and it is clear that Tabisa spent a lot of time with her sister. A reasonable explanation for the presence of KK Makoi’s DNA on the water bottle may be that KK Makoi brought the water bottle to Ms Garang’s apartment (whether or not it contained petrol), and that DNA had been previously deposited on the bottle by Tabisa at a previous time in unrelated circumstances.

261. In these circumstances, I do not consider that the DNA evidence provides independent and reliable support for Ms Garang’s evidence that Tabisa Makoi was one of the women who were present in the apartment on 22 June 2020.

Early complaint

262. In the triple 0 call, Ms Garang named “Tabisa” as one of the persons who attacked her. Similarly, when interviewed by Constable Elder on arrival, Ms Garang said that she woke to find Tabisa Makoi sitting on top of her and assaulting her.

263. As I have directed myself in Annexure “B”, complaint evidence may properly be used as “additional” evidence to a complainant’s evidence in Court. This means that complaint evidence is not relevant only in respect of its impact upon the credibility of a complainant’s in court evidence. In particular, there may be reasons for a tribunal of fact to have fewer concerns about the credibility or reliability of a contemporaneous account in comparison to a witness’ in court evidence. For example, in the present case, the concerns about collusion between Ms Garang and Ms Bol are reduced in respect of Ms Garang’s contemporaneous complaints to police in comparison to her evidence in Court.

264. Nonetheless, as Rothman J (Hoeben CJ at CL and Hamill J agreeing) held in SB v R [2020] NSWCCA 207 at [113], the value of complaint evidence still depends upon the truthfulness and accuracy of the complainant. Complaint evidence is not evidence that is “independent” of a complainant.

265. In the present case, my concerns about Ms Garang’s credibility, whilst somewhat reduced in respect of her early complaints on the triple 0 call and to Constable Elder, remains. In particular, I note that the occasions on which Ms Garang has previously lied include lies that were made ‘on the spur of the moment’, such as identifying herself as KK Makoi (in respect of the altercation at Mooseheads) and her Aunt (in respect of the Road Transport offence). Conclusion

266. As outlined above, whilst I have not rejected Ms Garang’s evidence as being untruthful, for the reasons that I have described above, I have approached her evidence with considerable caution, and in particular, have carefully considered whether her evidence identifying each individual accused is supported by independent and reliable evidence.

267. For the reasons outlined above, I am satisfied beyond reasonable doubt of the guilt of KK Makoi. Ms Garang’s evidence that KK Makoi was a member of a group of women who assaulted her and damaged her property was substantially supported by the neighbour’s evidence.

268. I do not consider that there is such independent support for Ms Garang’s account in respect of the involvement of Tabisa Makoi. I have carefully considered whether independent support is necessary for proof beyond reasonable doubt, particularly in circumstances where Tabisa Makoi was named by Ms Garang in the triple 0 call (before there was a substantial opportunity for collusion between her and Ms Bol) and where the neighbour provides general support for her evidence concerning the motive of the offences.

269. However, my residual concerns about Ms Garang’s credibility generally remain. In particular, I have been concerned by her lack of truthfulness in respect of the evidence concerning the bag, by the unexplained text messages sent between her and Tabisa Makoi immediately after the incident, none of which were provided to police, and by Ms Garang’s failure to name all of the people involved in the incident at an early time. I also take into account the fact that Ms Bol’s departure has had the result that the possibility of collusion between Ms Garang and Ms Bol was not able to be assessed in cross-examination.

270. Although I consider that it is likely that Ms Garang’s evidence concerning Tabisa Makoi is true, as a result of these concerns, I am not prepared to act on Ms Garang’s evidence identifying Tabisa Makoi without independent and reliable support. As there is no independent and reliable support for Ms Garang’s identification of Tabisa Makoi, I am not satisfied beyond reasonable doubt that Tabisa Makoi was one of the group of persons who assaulted Ms Garang and damaged her property.

271. Accordingly, I find Beich Maker Makoi not guilty of all offences.

Akim Dau

272. The accused Akim Dau does not have any prior convictions. As I have outlined in Annexure “B”, I have taken into account this absence of convictions in determining whether or not the prosecution has proved her guilt beyond reasonable doubt. However, in doing so, I have borne in mind that her good character and reputation does not provide her with an excuse or a defence if the prosecution has otherwise proved her guilt beyond reasonable doubt. Every offender has committed a first offence and, before doing so, was a person of good character and reputation.

273. For the reasons outlined at [208] – [209] above, I do not accept the submission made on behalf of Ms Dau that the circumstances in which Ms Garang identified Ms Dau are such as to shed doubt on the reliability of that identification.

274. However, for the reasons outlined at [269] above, I have concerns about Ms Garang’s credibility. My concerns concerning Ms Garang’s credibility are such that, in the absence of independent support for her evidence identifying Ms Dau, I am not satisfied beyond reasonable doubt that Ms Dau was one of the group of women who assaulted Ms Garang and damaged her property. There is no independent and reliable evidence apart from Ms Garang that Ms Dau was present at the time of the alleged offences.

275. Accordingly, I find Akim Dau not guilty of all offences.

Achan Matot

276. Achan Matot does not have a previous conviction for burglary. As I have outlined in Annexure “B”, I have taken into account the absence of convictions for burglary in Achan Matot’s favour in determining whether or not the prosecution has proved her guilt beyond reasonable doubt. However, in doing so, I have borne in mind that her good character and reputation does not provide her with an excuse or a defence if the prosecution has otherwise proved her guilt beyond reasonable doubt. All offenders have, at a particular point, committed a first offence and, before doing so, were people of good character and reputation.

277. The evidence in support of the prosecution case against Achan Matot was limited. Unlike KK Makoi and Akim Dau, Achan Matot did not have a direct motive to be involved in the offences apart from her friendship with the other accused. The evidence of Achan Matot’s friendship with the other accused was also minimal, and appeared to be largely limited to her being Nyalat Matot’s “little sister”.

278. There was no DNA or fingerprint evidence that connected Achan Matot with the offences. The neighbour’s evidence was limited to a description of the offenders being women and (possibly) a male of African appearance.

279. Ms Bol’s evidence against Achan Matot was limited to her statement that she heard the offenders mention the name “Achan” as one of the people who were hitting her. For the reasons outlined above, I am of the view that, in circumstances where Ms Bol absconded before her evidence was complete, her evidence should be given no weight in the prosecution case. However, for completeness, I note that Ms Bol gave evidence that she did not know Achan Matot and that she only heard one of the assailants call out to “Achan.” In view of this evidence, I do not accept Ms Garang’s evidence that Ms Bol told her that one of the offenders was “Achan Matot”. In circumstances where Ms Garang said that there was more than one “Achan” amongst the offenders, Ms Bol’s evidence that she heard mention of “Achan” as being one of the offenders could not carry weight in the case against Achan Matot.

280. The only other evidence in the prosecution case against Achan Matot was Ms Garang’s identification of her. For the reasons outlined at [269], my concerns concerning Ms Garang’s credibility are such that, in the absence of support, I am not satisfied beyond reasonable doubt that Achan Matot was one of the group of women who assaulted Ms Garang and damaged her property.

281. Further, even if, Ms Garang’s evidence identifying Achan Matot was considered to be credible, for the reasons outlined at [189] – [206] above, the circumstances in which she purported to identify Achan Matot are not such that her identification is reliable.

282. Accordingly, I find Achan Matot not guilty of all offences. Nyalat Matot

283. As with Achan Matot, the evidence in support of the prosecution case in respect of Nyalat Matot is limited. Like her sister Achan, Nyalat Matot did not have a direct motive to be involved in the offences apart from her friendship with the other accused. There was no DNA evidence or fingerprint evidence linking her to the offences. The neighbour’s evidence did not specifically identify her. Ms Bol did not name Nyalat as one of the assailants.

284. For the reasons outlined above, I do not consider Ms Garang’s identification of Nyalat Matot to be reliable.

285. Other than the identification evidence, the prosecution also relied on the evidence of the admission that Nyalat Matot was said to have made to Ms Garang. Specifically, late in her cross-examination, Ms Garang gave evidence that she had had a conversation with Nyalat Matot in which Nyalat Matot admitted that she was involved in the incident with the other women. For the reasons outlined at [185] – [188] above, there are aspects of Ms Garang’s evidence generally which cause concern. These concerns are particularly acute in respect of this admission, which Ms Garang mentioned for the first time in cross-examination. Ms Garang’s evidence in respect of Nyalat Matot is not supported by independent and reliable evidence.

286. Accordingly, I find Nyalat Matot not guilty of all offences.

Conclusion

287. In summary, I am satisfied beyond reasonable doubt of the guilt of Kock-Kedhia Maker Makoi of all offences except count 4 (the threat to kill). I am not satisfied beyond reasonable doubt of the guilt of any of the other accused of any offences.

288. It may seem counterintuitive that I have found one accused identified by Ms Garang to be guilty, whilst I have found each of the other accused not guilty. However, as I have explained above, this consequence follows from the heavy onus of proof that lies on the prosecution. Ms Garang’s evidence of the offences was plausible and generally consistent with the objective evidence and with her immediate complaint in her triple 0 call and to police. However, there were aspects of Ms Garang’s evidence that gave rise to concern, including, importantly her lack of candour in respect of the events of the 21 June 2020, her history of previous convictions for dishonesty offences (which included falsely presenting herself to court in the name of one of the present accused), aspects of her evidence that were unexplained and the inability to assess through cross-examination the possibility that she colluded with Ms Bol. For these reasons, I have approached Ms Garang’s evidence with caution and have carefully considered whether Ms Garang’s evidence of the alleged offences is supported by independent and reliable evidence.

289. Ms Garang’s evidence as to the involvement of KK Makoi was supported by the independent evidence of the neighbour, who gave evidence that she heard one of the offenders make a threat of a nature that could only have been made by KK Makoi (namely, a reference to Ms Garang’s perceived responsibility for killing KK’s dog). I am satisfied that this evidence is independent and reliable, and sufficient to resolve any residual doubts concerning the credibility of Ms Garang’s evidence that KK Makoi was one of the persons who entered her apartment, assaulted and threatened her and damaged her property.

290. However, Ms Garang’s evidence in respect of the remaining accused was not supported by independent and reliable evidence. In those circumstances, each of those accused has received the benefit of my reasonable doubt concerning Ms Garang’s credibility and reliability. Orders

291. I find the accused Kock-Kedhia Maker Makoi: Guilty of count one (aggravated burglary). Guilty of count two (assault occasioning actual bodily harm by joint commission). Guilty of count three (damage property by joint commission). Not guilty of count four (threat to kill).

292. I find the accused Beich Maker Makoi not guilty of all charges.

293. I find the accused Achan Matot not guilty of all charges.

294. I find the accused Nyalat Matot not guilty of all charges.

295. I find the accused Akim Dau not guilty of all charges.

296. The transferred Magistrate’s Court charge with respect to Achan Matot is withdrawn.

297. The transferred Magistrate’s Court charge with respect to Kock-Kedhia Maker Makoi is to travel with the sentence proceedings.

298. I list the proceedings for sentence against the accused Kock-Kedhia Maker Makoi in the Registrar’s List 1 June 9:00AM.

I certify that the preceding two-hundred and ninety-eight [298] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker Associate: Date: 26 May 2023

************** Amendments 10 October 2023 Replace “21 February 2023” with “16 Paragraph [69] February 2023” Annexure “A”: The elements

299. Count 1 – The elements for the offence of aggravated burglary by way of joint 1 commission are: 1. There was an agreement between two or more people (one of whom was the accused) that two or more of them would enter unit 8 of 6 Beetaloo Street, Hawker as trespassers (without permission of the occupier) with the intention of assaulting anyone in the building or causing damage to property in the building. 2. The person and at least one other party to the agreement intended that the offence would be committed. 3. The agreed offence, or an offence of the same type, was committed in that: (a) At least two of the parties to the agreement deliberately entered a building. (b) They entered as trespassers (the occupant did not consent to entry). (c) They entered in company (together and for the same purpose). (d) They entered with the intention of assaulting anyone in the building or damaging property in the building. 4. At the time of entry, the accused and at least one other party to the agreement intended that an offence would be committed under the agreement.

300. The elements for the offence of aggravated burglary (liable as principals) are: 1. The accused entered or remained in a building (conduct) Fault: intention 2. The accused was a trespasser (circumstance) Fault: reckless 3. At the time of entering or remaining, the accused intended to commit an offence that involved causing harm or threatening to cause harm to anyone in the building, or an offence in the building that involved causing damage to property and was punishable by imprisonment for 5 years or more (ulterior intent) Fault: intention

1 See R v Sidaros (No 5) [2020] 354 at [532]-[549]; R v Edwards [2020] ACTSC 243 AT [21]-[26] Note: absolute liability applies to a damage property offence being punishable by imprisonment for 5 years or more 4. The accused was in company (circumstance) Fault: reckless

301. Count 2 – The elements of the offence of assault occasioning actual bodily harm by joint commission are: (a) There was an agreement between two or more people (one of whom was the accused) that one or more of them would assault Achol Garang (would deliberately apply force to her). (b) The person and at least one other party to the agreement intended that the offence would be committed. (c) The agreed offence, or an offence of the same type, was committed in that the accused or another person who was party to the agreement deliberately applied force to Achol Garang which caused her actual bodily harm. (d) At the time of the conduct, the accused and at least one other party to the agreement intended that an offence would be committed under the agreement. The elements for the offence of assault occasioning actual bodily harm are: 1. The accused deliberately applied force to another person 2. The application of force was without lawful excuse 3. The application of force caused actual bodily harm

302. Count 3 – the elements for the offence of damage property by joint commission are: (v) There was an agreement between two or more people (one of whom was the accused) that one or more of them would cause damage to property belonging to Achol Garang. (vi) The person and at least one other party to the agreement intended that the offence would be committed. (vii) The agreed offence, or an offence of the same type, was committed in that the accused or another party to the agreement deliberately caused damage to property belonging to Achol Garang. (viii) At the time when the offence was committed, the accused and at least one other party to the agreement intended that an offence would be committed under the agreement.

303. The elements for the offence of damage property are: 1. The accused engaged in conduct (conduct) Fault: intention 2. The conduct caused damage to property (result) Fault: intention or reckless 3. The property belonged to someone else (circumstance) Fault: reckless 2

304. Count 4 – the elements of threat to kill by joint commission are: Pathway 1 1. There was an agreement between two or more people (one of whom was the accused) that one or more of them would, threaten to kill Achol Garang (not a threat to do some kind of bodily harm) being reckless that she fear that the threat would be carried out, and in circumstances in which a reasonable person would fear the threat would be carried out. 2. The person and at least one other party to the agreement intended that the offence would be committed. 3. The agreed offence, or an offence of the same type, was committed in that the accused or another party to the agreement threatened to kill Achol Garang, being reckless that she would fear the threat would be carried out and in circumstances in which a reasonable person would fear it would be carried out. 4. At the time that the offence was committed, the accused and at least one other party to the agreement intended that the offence would be committed under the agreement. Pathway 2

2 See Luu v Cook [2008] ACTSC 54 at [20]-[23] 1. There was an agreement between two or more people (one of whom was the accused) that two or more of them would enter unit 8 of 6 Beetaloo Street, Hawker as trespassers (without permission of the occupier) with the intention of assaulting Achol Garang in the building or causing damage to her property. 2. The person and at least one other party to the agreement intended that the offence would be committed. 3. An offence of threat to kill was committed in the course of carrying out the agreement, in that another party to the agreement threatened to kill Achol Garang (not a threat to do some kind of bodily harm) and was reckless that she would fear the threat would be carried out and in circumstances in which a reasonable person would fear it would be carried out. 4. At the time that the offence was committed, the accused was reckless about the commission of the threat to kill offence that the other party to the agreement in fact committed in carrying out the agreement.

305. The elements for the offence of threat to kill are: (i) The accused made a threat to kill another person (not a threat to do some kind of bodily harm). (ii) The accused intend that the victim fear, or was reckless that the victim would fear, that the threat would be carried out. (iii) The threat was made without lawful excuse. (iv) The threat was made in circumstances in which a reasonable person would fear that it would be carried out.

306. There are transferred charges of common assault in respect of the accused Achan Matot and Kock-Kedhia Makoi. The elements of common assault are: 1. The accused deliberately applied force to another person. 2. The conduct was without the consent of the other person. 3. The application of force was without lawful excuse. Annexure “B”: Directions Onus and Standard of Proof The burden of proof of the guilt of the accused is placed squarely on the prosecution. That burden never shifts to the accused. An accused is presumed to be innocent unless and until the prosecution persuades the court that the accused is guilty beyond reasonable doubt. It follows that if I am left unable to decide whether the prosecution has proved its case beyond reasonable doubt in respect of any of the accused, even though I might suspect that any of the accused committed any of the offences, that accused is entitled to the benefit of that doubt and I must find her not guilty. Fact Finding The facts that I find must be based on the evidence; that is, the evidence given by the witnesses and that are contained in any exhibits. In addition, in assessing the evidence, I must apply my common sense. I must do so with an open and unbiased mind, hearing the evidence clinically and dispassionately and not letting emotion enter into the decision-making process. The prosecution and each of the accused are entitled to my verdict free of partiality, prejudice, favour or ill will. I am not required by any rule of law, logic or common sense to accept a witness wholly or to reject a witness wholly. I can accept everything that a witness has said if I consider all of it worthy of acceptance. I can reject everything that a witness has said if I consider none of it worthy of acceptance. Or I can accept that part of a witness’ evidence that I consider worthy of acceptance and reject the rest of that witness’ evidence if I consider it unworthy of acceptance. Inferences I may draw reasonable inferences from the facts that I find are established. I must examine any possible inference to ensure that it is a justifiable inference, and I must not draw an inference from the direct evidence unless it is a rational inference in all of the circumstances. Joint trial This is a joint trial of five accused. This is simply a matter of administrative convenience. I must consider the case against each accused person separately when considering my verdicts. I will return a separate verdict in respect of each individual accused. There is nothing in law, or for that matter in common sense, which requires me to return the same verdict in respect of each individual accused. I will not determine whether the accused are guilty without considering them as individuals and giving each separate consideration. Simply because the prosecution alleges that they are all guilty of the same offence, it does not follow that I will approach my deliberations in the same way. The evidence adduced by the prosecution to prove the guilt of the accused Kock-Kedhia Maker Makoi is different to the evidence adduced in the prosecution case against the remaining accused. I must not take into account in deciding whether the prosecution has proved its case against one accused, evidence that was tendered only against another accused. It would be a breach of my duty to decide the case according to law, as well as grossly unfair, to use evidence against an accused which the prosecution did not rely upon in proof of its case against her. AVL In this trial, Ms Garang and Ms Bol gave their evidence by audio-visual link from a room that was remote from a courtroom. This is usual practice. I must not draw any inference adverse to the accused and I must not accord Ms Garang or Ms Bol’s evidence any greater or lesser weight because these practices were followed: ss 4AF, 64, 101 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). Murray direction Ms Garang was the critical prosecution witness and the only prosecution witness capable of giving direct evidence that Akim Dau, Achan Matot and Nyalat Matot were persons in Ms Garang’s apartment at the time of the alleged offences. I must examine Ms Garang’s evidence carefully before deciding whether I accept the key aspects of her evidence on these issues beyond reasonable doubt: R v Murray (1987) 11 NSWLR 12 at [19]. Jovanovic direction In respect of each accused, I give myself the following directions about the question whether Ms Garang would fabricate serious allegations against each or any of the accused: 1. As outlined above, the essential elements of the Crown case must be proved beyond reasonable doubt or the accused must be acquitted. Where the charges turn on the evidence of Ms Garang, I must be satisfied beyond reasonable doubt that Ms Garang has told the truth. 2. As outlined above, it is my duty to decide whether I accept the evidence of a witness in whole or in part. Ms Garang is no exception to that. 3. It would be wrong for me to conclude that Ms Garang is telling the truth because there is no apparent reason for Ms Garang to lie. People lie for all sorts of reasons. Sometimes it is apparent. Sometimes it is not. Sometimes the reason is discovered. Sometimes it is not. I cannot be satisfied that Ms Garang is telling the truth merely because there is no apparent reason for Ms Garang to have made up these allegations. There might be a reason for Ms Garang to be untruthful that nobody knows about. Ms Bol’s evidence (a combined Mahmood and s 165 direction) Ms Achol Bol absented herself from the proceedings after her evidence in chief and shortly after cross-examination had commenced. I must not speculate about what Ms Bol would have said if she had completed her cross-examination. However, as the prosecution must prove guilt beyond reasonable doubt, I must take into account that Ms Achol Bol did not conclude her evidence, and that her cross-examination was cut short, in deciding whether there is a reasonable doubt about each of the accused’s guilt. In particular, I must take into account that Ms Bol’s evidence could not be tested in relation to matters including, but not limited, to the following: (i) Ms Bol’s evidence that one of the people in the apartment was referred to as “KK”; (ii) whether Ms Bol colluded with Ms Garang to give false evidence about the events of 22 June 2020; (iii) inconsistencies between Ms Garang’s evidence and Ms Bol’s evidence; (iv) inconsistencies between Ms Bol’s evidence in Court and the account that she gave to Constable Maher on 22 June 2020 (Exhibit 18); and (v) the events of 21 June 2020, when clothes belonging to the accused Dau were burnt and the accused Kock-Kedhia Maker Makoi’s dog was killed. I must also consider the circumstances in which Ms Bol’s evidence concluded when assessing the credibility and reliability of the evidence that Ms Bol gave in court prior to her departure and the account that she gave to Constable Maher on 22 June 2020 (Exhibit 18). I warn myself that, as Ms Bol’s evidence has not been tested through cross-examination, it may be less reliable than evidence that is tested by cross-examination. For this reason, I must approach both Ms Bol’s in-court evidence and the account that she gave to Constable Maher on 22 June 2020 (Exhibit 18) with considerable caution. Complaint evidence The prosecution relies on the evidence of Ms Garang having made complaints in the triple 0 triple 0 call and to Police Constable Elder on 22 and 24 June 2020. The prosecution also relies on evidence of Ms Bol making a complaint to PC Maher on 22 June 2020. This evidence is referred to as “complaint evidence” or “evidence of complaint”. I will use those terms as a shorthand description of this evidence. The first issue that I must decide is whether to accept that Ms Garang and/or Ms Bol made the alleged complaints. The accused did not dispute that the complaints were made. If I accept that a complaint or complaints were made, the following directions apply to how each complaint may be used. Section 60 use The first way in which the evidence may be relevant is that it can be regarded as additional evidence of the events described by Ms Garang. In other words, in addition to the evidence of Ms Garang in this Court, there is also evidence of her complaints as made to the triple 0 triple 0 call operator and to PC Elder. Similarly, in addition to the evidence of Ms Bol, there is also evidence of her complaint made to PC Maher. Credibility use The second way the evidence of complaint may be used is that it can be relevant to the truthfulness of each witness’ evidence in court. The prosecution says that the fact Ms Garang made complaints when she did and in the manner in which she did makes it more likely she is telling the truth about the matters that she complained of. Similarly, the prosecution says that the fact Ms Bol made complaints when she did and in the manner in which she did makes it more likely she is telling the truth about the matters that she complained of. In this respect, I must consider whether each of Ms Garang and Ms Bol’s conduct was consistent with the allegations made. In other words, did each act in the way I would expect her to act if they had each been assaulted as they each claim? Relevant considerations will include the timing of the complaints and the way each of Ms Garang and Ms Bol appeared when making the complaints. In considering whether there was consistency between the allegations and the conduct of Ms Garang and Ms Bol in complaining, I can take into account any differences between the versions provided (including, but not limited to, the parties named) in assessing the witness’ credibility and reliability. In doing so I must however, also bear in mind that different people have different personalities. In a given situation they might not all behave in the same way. In this case I am being asked to consider each of Ms Garang and Ms Bol and the way in which each reacted to the experience that they each says they had. I must bear in mind that just because a person says something on more than one occasion it does not mean that what is said is necessarily true or reliable. A false or inaccurate statement does not become more reliable just because it is repeated. Identification evidence There is an important direction I give myself concerning the evidence of Ms Garang in which she identified the accused Nyalat Matot, Achan Matot and Akim Dau as persons who were present in her apartment while she was being assaulted and her property was being damaged. This direction relates only to the reliability of the identification evidence given, not to Ms Garang’s honesty. I must separately be satisfied beyond reasonable doubt of her honesty. Identification evidence may be unreliable and there are a variety of reasons why that is so. I must approach evidence that each of these accused has been identified by Ms Garang with special caution before I accept it as reliable. A witness may be honest, but that does not necessarily mean that the witness will give reliable evidence. Because the witness who gives evidence of identification honestly and sincerely believes that their evidence is correct, that evidence will usually be quite impressive, even persuasive. So here, even if I conclude that Ms Garang was entirely honest in the evidence that she gave, I must still approach the task of assessing the reliability of her evidence with special caution. Special caution is necessary before accepting identification evidence because of the possibility that a witness may be mistaken in their identification of a person accused of a crime. The experience of the criminal courts over the years, both here in Australia and overseas, has demonstrated that identification evidence may turn out to be unreliable. There have been some notorious cases over the years in which evidence of identification has been demonstrated to be wrong after innocent people have been convicted. I must carefully consider the circumstances in which Ms Garang made her observations of the each of the accused Nyalat Matot, Achan Matot and Akim Dau, as the circumstances in which Ms Garang made her observations may affect the reliability of her identification evidence. There are a number of matters that have been specifically raised in this case that require my consideration: (a) What opportunity did Ms Garang have to make her identifications and what were the circumstances of those identifications? In particular, I must bear in mind:

(i) The effect of any alcohol and/ or other drugs that Ms Garang had consumed earlier that day; (ii) The length of the time that Ms Garang had to make the identifications; (iii) In respect of the identifications said to have been made in the bedroom, Ms Garang’s evidence that she was being assaulted at the time of the identifications; (iv) The size of the bedroom from which Ms Garang made those observations; (v) Ms Garang’s position on the bed at the time she made the observations, the position of the door through which Ms Garang said that she made her observations, and the extent to which other room(s) could be seen through that door; (vi) The number of other persons in the bedroom, and whether their position(s) obstructed Ms Garang’s view; (vii) In respect of the identifications made outside the bedroom, the relative positions of Ms Garang and the persons who were identified. (b) Was Ms Garang under any stress, pressure or suffering any injury at the time that the identifications were made (in particular from the alleged assaults and the damage to her property)? If so, I must consider how that stress might have affected her ability to accurately observe each of the persons identified and to store the image of each of their appearances in her memory. (c) When was Ms Garang first asked to identify the people involved? When did Ms Garang first identify the accused Nyalat Matot, Achan Matot and Akim Dau? How fresh was Ms Garang’s memory at the time that she first identified each of the accused Nyalat Matot, Achan Matot and Akim Dau? (d) How well known were Nyalat Matot, Achan Matot and Akim Dau to Ms Garang? When were each of them last seen by Ms Garang? What information was told to Ms Garang by Ms Bol about the other women in the apartment? Is there a possibility of transference or “guilt by association”? Is there any prospect of contamination of Ms Garang’s memory. In particular, whether being told “Achan” was present and/or believing she had seen Achan Matot on 21 June 2020 may have increased the likelihood she would incorrectly include Achan Matot as one of the offenders? I must give consideration to each of those matters. Any one of those circumstances may possibly lead to error. Expert evidence In this case, Joshua Schwartz, Lisa Nicholson and Benjamin Cabot were called as expert witnesses. The value of any expert opinion very much depends on the reliability and accuracy of the material which the expert used to reach his or her opinion. It also depends on the degree to which the expert analysed the material upon which the opinion was based, and the skill and experience brought to bear in formulating the opinion given. Experts can differ in the level and degree of their experience, training and study, yet each can still be an expert qualified to give an opinion where that opinion is based on that witness’s specialised knowledge. In the present case, expert evidence was admitted to provide me with me information in the areas of DNA, fingerprints and flammable substances, and an opinion on these topics. These topics are within each witness’ expertise but are likely to be outside the experience and knowledge of the average lay person. The expert evidence is before me as part of all the evidence to assist me in determining whether the prosecution has proved the charges beyond reasonable doubt. I bear in mind that if, having given the matter careful consideration, I do not accept the evidence of the experts, I do not have to act upon it. This will be particularly so if the facts upon which the opinion is based do not accord with the facts as I find them to be. I am also, to a degree, entitled to take into account my common sense and my own experiences if they are relevant to the issue upon which the expert evidence relates. The accused did not give evidence None of the accused have given evidence in response to the prosecution case. However, as outlined above, the prosecution bears the onus of satisfying me beyond reasonable doubt that the accused is guilty of the offence charged. There is no obligation on an accused person to give or call evidence in a criminal trial. Each of the accused are presumed to be innocent until I am satisfied beyond reasonable doubt by the evidence led by the prosecution that she is guilty of the offences charged. It follows that each of the accused are entitled to say nothing and make the prosecution prove her guilt to the high standard required. I cannot use any accused’s decision not to give evidence in any way at all during the course of my deliberations, nor can I use it as strengthening the prosecution case or in assisting the prosecution to prove its case beyond reasonable doubt. I must not speculate about what might have been said in evidence if the accused had given evidence. Character evidence I additionally direct myself in relation to good character. The prosecution accepts that: (i) The accused Achan Matot does not have a previous conviction for burglary; (ii) The accused Akim Dau does not have any prior convictions; (iii) The accused Kock-Kedhia Maker Makoi does not have any prior convictions for burglary or assault. I must take each of the accused’s good character and reputation into account in their favour on the question of whether or not the prosecution has proved their guilt beyond reasonable doubt. The accused’s good character and reputation do not provide them with a defence. People of good character and reputation do commit criminal offences. Every offender has committed a first offence and, before doing so, was a person of good character and reputation. The fact that the accused is a person of good character and reputation cannot prevail over, or provide a defence to, evidence of guilt, if the prosecution has proved beyond reasonable doubt that the accused is guilty of the offence. Good character is not advanced in the case of the accused Nyalat Matot or the accused Beich Maker Makoi. Of course, I draw no adverse inference in relation to the absence of evidence of good character in the case of the accused Nyalat Matot or the accused Beich Maker Makoi.