DPP v Cross

1. This is a trial by judge alone after the accused, Mr Bronson Cross, signed an election on 23 October 2024 to be tried by judge alone pursuant to s 66B of the Supreme Court Act 1933 (ACT).

2. The accused was charged with the following offences on an indictment dated 3 September 2024: (a) Count 1 (CC2024/172): recklessly inflict grievous bodily harm contrary to s 20 of the Crimes Act 1900 (ACT). (b) Count 2 (CC2024/5222): act endangering life contrary to s 27(3)(d) of the Crimes Act. (c) Count 3 (CC2024/4970): unauthorised use of firearm contrary to s 43(1)(a)(iii) of the Firearms Act 1996 (ACT).

3. Pursuant to s 49 of the Crimes Act, if I am not satisfied that the accused is guilty of Count 1, he may instead be found guilty of the alternative offence of inflicting actual bodily harm (contrary to s 23 of the Crimes Act) or causing grievous bodily harm (contrary to s 25 of the Crimes Act).

4. On 6 May 2025 the prosecution filed an application in proceeding to vary or waive pre-trial disclosure. On 21 May 2025, the prosecution filed an amended application seeking requirements only to waive pre-trial disclosure requirements. The application was opposed and on 10 June 2025 I dismissed it: see DPP v Cross (No 2) [2025] ACTSC 291.

5. The trial commenced on 12 June 2025, the accused having previously been arraigned and entered pleas of not guilty to each count.

6. In considering my verdict, I must take into account any warning or direction which would have been given, or any comment which would have been made, to a jury in the proceedings should this matter have been tried before a jury pursuant to s 68C(3) of the Supreme Court Act. The directions I have applied are recorded in Annexure A.

7. In accordance with s 68C(2) of the Supreme Court Act, I now provide the following reasons which include the principles of law I have applied and the findings of fact that I have made. For the reasons that follow, the accused is not guilty on each count on the indictment. Prosecution case

8. The prosecution alleged that on 1 May 2024 the accused discharged a firearm in the presence of HN and FT, causing serious injuries to HN which required surgical intervention. At the time he discharged the firearm, the accused did not have a licence to use or possess it.

9. In his opening address the prosecutor comprehensively outlined the prosecution case as follows.

10. At the time of the shooting, the accused and HN were known to each other having first met in primary school. The accused and HN had a fight which included a physical altercation approximately one to two years prior to the shooting.

11. FT and the accused were also known to each other, having met a few times several years prior to the shooting. In April 2024, FT was at a friend’s house and saw the accused in possession of a firearm.

12. Just before 1am on 1 May 2024, HN and FT were standing on George St in Oaks Estate, ACT. FT observed a small orange coloured vehicle without registration plates drive past. The vehicle was a gold-coloured Nissan Micra. The vehicle turned around and drove back towards them, travelling at a slow speed. The accused exited the vehicle. He was wearing a light-coloured jumper, dark-coloured pants and a face covering. FT recognised the accused based on his height, build, face and voice. The accused had a long firearm in his hand.

13. The accused approached HN and FT and said, “is that you HN?”. HN responded yes. Words were exchanged between the two men whilst FT hid behind a tree. The accused said words to the effect of, “do you want to get fucking shot?”.

14. HN told the accused that were police in the next street. HN knew this because police were at his brother’s house executing a search warrant. The accused discharged the firearm in the direction of HN and yelled “motherfucker”. At the time he discharged the firearm, the accused was approximately five metres away from HN and FT. The accused got back in the vehicle and drove away.

15. HN and FT ran to Mr Brett Clarke’s house. Mr Garry Clarke, Brett Clarke’s father was at the residence, and he soon transported HN to the hospital. HN immediately identified the person who had shot him to be the accused.

16. HN had numerous puncture wounds across his body as well as shotgun pellets lodged in his body. HN suffered from a pneumothorax (collapsed lung) and required surgery to remove some of the pellets. Agreed facts and other evidence tendered by the consent

17. Pursuant to s 191 of the Evidence Act 2011 (ACT), the following facts were agreed: (a) In documents “DR010938 – CCR SMS – Optus – Service Number [Redacted]– Result Attachment” and ‘DR010939 – CCR – Optus – Service Number – [Redacted] – Result Attachment” the reference to number A is the phone number where the communication originates from and the reference to number B indicates the phone number that receives the communication. (b) The on-screen display time of the CCTV taken from Winchester Place is set 1 hour, 8 minutes, and 58 seconds behind real time. (c) The on-screen display time of the CCTV taken from George Street is set approximately 1 hour behind real time.

18. The following material was tendered by consent.

Statement and Evidence Recovery Summary Report of Dr Latara Rust

19. Dr Rust is a forensic chemist with the Australian Federal Police (AFP).

20. Dr Rust’s Evidence Recovery Summary Report related to examinations conducted on two balaclavas. These examinations included a DNA tape lift and the collection of gunshot residue (GSR) “stubs” from each of the balaclavas. Additionally, a “piece of circular red apparent rubber” was retrieved from the first balaclava. An animal hair and a human hair were retrieved from the second balaclava.

21. Each of the samples recovered from the balaclavas were sent for further “triaging and assessment”.

Statement and Biology Court Report of Jennifer Stone

22. Ms Stone is a senior forensic biologist with the AFP.

23. In her Biology Court Report, Ms Stone identified that a mixed DNA profile from at least two individuals was obtained from the DNA tape lift taken from the interior of the first balaclava. Ms Stone provided a likelihood ratio which identified that it was at least 100 billion times more likely that the accused was one of the two contributors to the mixed DNA profile than if the profile originated from two unknown persons.

24. In respect to the DNA tape lift taken from the interior of the second balaclava, Ms Stone similarly identified that a mixed DNA profile from at least two individuals was obtained. Ms Stone again provided a likelihood ratio which identified that it was at least 100 billion times more likely that the accused was one of the two contributors to the mixed DNA profile.

25. Ms Stone concluded that there was “extremely strong support” for the proposition that the accused was a contributor to the DNA profiles obtained from the tape lifts on the interior of each of the balaclavas.

Statement and Examination of Paint Samples Report of Vincent Otieno-Alego

26. Mr Otieno-Alego is a forensic chemist with the AFP. He undertook examinations on various paint samples collected from the ‘Nissan Micra’, specifically: (a) Black paint on front bumper car; (b) Black paint on front driver’s side quarter panel; (c) Black paint on front driver’s side door; (d) Orange reference from front driver’s side door; (e) Black paint from rear driver’s side quarter panel; (f) Black paint from boot; (g) Black paint from rear passenger’s side door; (h) Black paint from front passenger’s quarter panel

27. Mr Otieno-Alego also conducted examinations on the following paint samples collected from [redacted] Boronia Crescent, Karabar, NSW: (i) Spray can – ‘SPRAY MARK’ (j) Black spray paint can (k) Matt black spray paint can

28. The purpose of the testing undertaken by Mr Otieno-Alego was to ascertain whether any of the black paint samples recovered from the Nissan Micra came from any of the spray paint cans submitted for comparison.

29. Mr Otieno-Alego found that the samples recovered from the front bumper, front driver’s side door, rear driver’s side quarter panel, boot and the front passenger’s quarter panel of the Nissan Micra could not be differentiated from the black paint contained in the ‘matt black spray paint can’ collected from [redacted] Boronia Crescent. The black paint samples recovered from the front driver’s side quarter panel and the rear passenger’s side door of the Nissan Micra did not come from any of the used spray paint cans submitted for comparison.

30. Mr Otieno-Alego concluded that the results supported the proposition that the paint from the ‘matt black spray can’ collected from [redacted] Boronia Crescent, Karabar was used to paint the Nissan Micra.

Statement and Gunshot Residue Examination Report of Nicholas Lucas

31. Mr Lucas is a forensic chemist with the AFP.

32. Mr Lucas was provided with three samples for testing. The first sample was “GSR stubs” collected from the first balaclava, the second sample was “GSR stubs” collected from the second balaclava, and the third sample was “GSR stubs” collected from a grey hooded jumper.

33. Mr Lucas identified that “nil particles characteristic or indicative of GSR were detected on the samples” collected from each of the balaclavas and the corresponding control samples. Similarly, “nil particles characteristic of GSR were detected on the samples collected from the left-hand side of the Grey Hooded Jumper”. A single particle indicative of GSR was detected on the sample from the left-hand side of the grey hooded jumper however “detection of a small population of particles of this type in isolation cannot be considered supportive of firearm association”.

34. Mr Lucas concluded that the GSR evidence does not support the proposition that the two balaclavas or the grey hooded jumper “has had a firearm association”. Mr Lucas noted that the absence of particles characteristic and indicative of GSR may be the result of: (a) The item not having had a firearm association; (b) No GSR being deposited during a firearm association; (c) GSR being deposited, but outside the areas of the item that were sampled; (d) GSR being deposited but subsequently being removed or redistributed prior to sampling; (e) The random sampling process not collecting any GSR that had been deposited on the item; or (f) GSR being present on the sample at levels below the limit of detection of the instrumentation used in this examination.

Statement and report of Alixandra Chan

35. Ms Chan is a crime scene investigator with the AFP.

36. At about 7:56am on 1 May 2024, Ms Chan attended [redacted] George St, Oaks Estate. On arrival she observed a police cordon sectioning off an area in front of a residential unit block. A visual search was conducted in the police cordon. A marker and forensic exhibit number were placed adjacent to what “appeared to be plastic wadding or similar” located on the ground. The item was photographed and collected.

Medical Report of Dr Amanda Barry

37. Dr Barry is a medical practitioner who was requested to prepare a report in relation to HN. She herself did not examine or treat HN, however she was provided with a bundle of medical records from both the Canberra Hospital and the Queanbeyan Hospital following his admission on 1 May 2024.

38. Dr Barry recorded the following findings in relation to HN’s injuries: (a) HN reported being shot once with a shotgun on 1 May 2024 (b) HN sustained injuries as a result of metallic pellets penetrating the following regions: 1․ The right maxillary sinus resulting in maxillary (cheek) bone fracture and bleeding into the right maxillary sinus. 2․ The right eye with a metallic fragment subsequently being lodged in the posterior right orbit (in the bone behind the right eye). 3․ Adjacent to vascular structures including the superior vena cava, left internal jugular vein, left external jugular vein, and branches of the right maxillary artery and facial artery. 4․ The left carotid artery sheath. 5․ The right lung resulting in a hemopneumothorax and lung bruising. A chest drain was inserted to treat this injury. 6․ The nasal septum. 7․ Both sides of his chest wall. 8․ Ride side of the abdomen. 9․ Right upper limb. (c) HN required wound washout, exploration, debridement of the face, neck and chest under general anaesthetic on 3 May 2024 to mitigate the risk of wound infection and to extricate retrievable metallic pellets. 1․ The metallic pellet located in the left carotid sheath had the potential to cause life threatening haemorrhage and/or nerve damage due to potential erosion into critical underlying structures. This pellet was removed and the fibrous sheath was repaired. There was no underlying vascular injury. 2․ Metallic pellets remain present adjacent to the superior vena cava (largest vein in the body) and the additional critical blood vessels and nerves as the risk of pellet removal outweighed the benefit of retrieval. 3․ HN has a residual metallic pellet located in the bone behind his right eye. A finding of a “linear streak artefact” was reported through the right eye and this was most likely caused by a metallic pellet travelling through the right eye. 4․ HN has residual metallic pellets located in his face, chest wall, right lung, abdomen and right upper limb. (d) The metallic pellets are a result of gunshot trauma and could have caused all of the aforementioned injuries in the manner and time frame described. (e) HN will have the following permanent repercussions as a result of his injuries/interventions: 1․ Permanent metallic foreign bodies located in his face, neck, chest wall, right lung, abdomen and right upper limb. 2․ Permanent scarring of his face, neck, chest abdomen and right upper limb. (f) HN may have the following long-lasting sequelae: 1․ Possible vascular and nerve complications due to foreign body erosion into vital neck structures. 2․ Possible chronic pain of the face, neck, chest, abdomen and right upper limb. 3․ Possible chronic right sided sinusitis. 4․ Psychological repercussions secondary to the traumatic event. Further comment on potential short term and long-term psychological effects should be addressed by a psychiatrist or psychologist. (g) HN received highly specialised medical care to treat his injuries and specific questions may require input from specialist medical and surgical experts in these fields of practice. In particular: 1․ Comment regarding the future risk of complications from foreign body presence in locations adjacent to vascular and nerve structures, including possible injury to these structures, can be sought from a vascular surgeon. 2․ Comment regarding the potential for future eye and vision complications can be sought from an ophthalmologist. 3․ Comment regarding the potential need for further facial surgery, long-term facial deformity and possible fragment retrieval can be sought from an oral and maxillofacial.

Transcript of Record of Conversation of Bronwyn Spackman

39. Ms Spackman partook in a record of interview with the informant in this matter. The transcript of that record of interview was tendered by consent of the parties.

40. Bronwyn Spackman is a resident of George St in Oaks Estate who heard what sounded to be a shot, a male voice, and a car screaming down the street three to four minutes after the shot.

41. Ms Spackman said that not long after midnight she heard what sounded like a shot, and a male voice which said the ‘full expletive” which was “get fucked”. Ms Spackman said she subsequently came to the window, and it was “all quiet”.

42. She stated that the male voice was “cranky” and had an angry tone, confirming she only heard the one voice. Ms Spackman said that a car then came screaming up the street within three to four minutes of the shot.

43. Ms Spackman said that this event was not long after she had turned off her light and laid down to go to sleep, however she had not gone to sleep yet. She said she looked at her phone as she turned the off the light, and her phone had indicated the time was 1 minute to midnight, and that she had heard the shot about fifteen to thirty minutes thereafter at a maximum estimation, whilst she was “drifting off”.

44. She described the shot as a bang, not a pop. She further described the sound as a louder, more solid sound than when she had heard people shooting and it went “pop”.

45. Ms Spackman said there was no reverberation afterwards, it was just a ‘bang’.

46. She then came and looked out the window but could not see anybody.

Statement and Property Seizure Record of Detective Seargent Christopher Watson

47. Christopher Watson is a Detective Seargeant with the AFP, attached to the criminal investigations, major crime squad at Tuggeranong police station. Detective Seargeant Watson was involved the execution of a search warrant at [redacted] Winchester Place, Karabar NSW.

48. On 2 May 2024, Detective Seargent Watson was asked by Detective Inspector Sprague to assist in the investigation in this matter. Detective Seargeant Watson stated that at about 4:48pm this same day, First Constable Seton signed him over four s 3E Crimes Act 1914 search warrants inclusive of that for [redacted] Winchester Place, Karabar, NSW.

49. On 3 May 2024, Detective Seargeant Watson signed the search warrant for the Karabar location over to First Constable Dodwell. He said that at 11:14am this same day he attended the Karabar address in the company of other members of police. He said that upon arrival, there was no one at the residence and therefore entry was affected via an unlocked garage door and the premises was cleared, confirming no one was on the premises. He said that First Constable Dodwell contacted the resident and made arrangements for them to return to the property.

50. He said that during the execution of this search warrant, he assumed the role of the property officer. He stated that during the course of executing the warrant, five items were seized and brought to him. The items were sealed and recorded on a property seizure record, which has also been tendered in these proceedings. He said he left the occupant of the premises with a copy of the property seizure record at the conclusion of the search.

51. He said that upon return to Tuggeranong police station the exhibits seized were lodged in the secure property room.

Transcript of Record of Conversation of Joshua Stefanou

52. Joshua Stefanou lived on George St in Oaks Estate at the time of the incident. Mr Stefanou participated in a record of interview with police. The transcript of that record of interview dated 1 May 2024 recorded that Mr Stefanou said he had heard what he thought to be a firecracker at some point before 1 am. Having reflected further following his conversations with police, Mr Stefanou estimated that he heard this bang between 12:33am and 12:55am as he was up stretching his shoulder.

53. He also said he heard a car in the lead up to the bang and then looked outside the curtain and noticed someone in a white or light-coloured shirt walking towards Brett Clarke’s house. He said that it seemed like they were walking off after lighting a firecracker. He also said he noticed a white dual-cab ute in the vicinity. Transcript of Record of Conversation of Adam Steven-Slade

54. Adam Steven-Slade provided the CCTV of the incident to Detective Senior Constable Sean Cunningham and partook in a record of conversation with him on 1 May 2024.

55. Mr Steven-Slade stated he heard a loud ‘bang’ around what he thought was half-twelve which woke him and his wife up. He said they hear a lot of large bangs around there, so he did not think it was anything to worry about.

56. Mr Steven-Slade said he didn’t go back to sleep thereafter, but he did look out the front and back windows about five to ten minutes later, however, did not see anything.

57. In the morning, Mr Steven-Slade said he then became aware of police tape throughout the street as his wife had mentioned it. He then spoke to the police and was given an incident card, at which point he volunteered the CCTV from his residence.

58. Mr Steven-Slade said he reviewed the CCTV footage recorded on the incident and clarified that the CCTV display time is one hour later due to misconfiguration of the daylight savings time features on the system.

Statement of Constable Jason Jun Pin Lung

59. Jason Jun Pin Lung is a Constable with the AFP, who was attached to the Gungahlin Police Station at the time of his statement. His supplementary statement dated 30 December 2024 was tendered.

60. Constable Lung stated that on shift on 28 November 2024 at approximately 10am, he and Senior Constable Beau Tennant attended an address in the ACT where he spoke to a person known to him to be Ms Jasmine Peckham. He stated that on that same date at about 11am, he and Senior Constable Beau Tennant attended an address in the ACT to speak to Ms Leonie Woodland. He said he was present whilst Senior Constable Beau Tennant conducted a record of conversation with Ms Woodland. He said that at about 12pm on that same date, he and Senior Constable Beau Tennant attended Queanbeyan Police Station to obtain assistance in conducting location and person checks on their police database.

61. He stated that at around 12:20pm that same day, he and Senior Constable Beau Tennant had a conversation with a neighbouring resident of [redacted] Boronia Crescent, Karabar. Shortly thereafter, he said he entered the backyard of the resident he spoke with and looked over the fence where he observed a hatchback vehicle parked against the fence line. He described this vehicle as being black coloured on the top half, and orange on the bottom half. He said he observed a white mattress sitting on the roof of the vehicle of which he suspected to be an attempt to conceal the vehicle. He said he took four photographs of the vehicle and advised Senior Constable Beau Tennant of what he had observed.

62. Constable Lung stated that he and Senior Constable Beau Tennant remained stationary at Banglay Street, Karabar NSW in their police vehicle and that at approximately 4:15pm, he entered the residence of [redacted] Boronia Crescent, Karabar NSW under a s 3E Crimes Act 1914 (Cth) search warrant, accompanied by Senior Constable Beau Tennant, Detective Seargeant Mark Battye, Detective Senior Constable Shaun Cunningham, First Constable Nate Holdsworth, Detective Senior Constable Keira Seton, AFP member Chantelle Pellegrini and NSW police force members.

63. Constable Lung stated that during the search warrant he was allocated the role of the searcher. He commenced a search of the lounge room at approximately 4:30pm, which concluded shortly thereafter, and he did not locate any items of interest.

64. Constable Lung recorded that at around 5:10pm he located an axe on the ground in the backyard of the residence which was seized before it was handed over to First Constable Holsworth.

65. He stated that a while later he observed an orange vehicle to be towed from the backyard of the vehicle, which he observed to be severely damaged and not in a state to be driven. He observed the orange vehicle to be loaded onto a tow truck, which he and Senior Constable Beau Tennant followed to the AFP Exhibit Management centre where it was securely lodged.

Statement of Constable Kurt Kleber

66. Kurt Kleber is a Constable of the AFP attached to the Proactive Intervention and Diversion team located at Belconnen Police Station. Constable Kleber was involved in the execution of a search warrant at [redacted] Winchester Place Karabar, NSW on 3 May 2024.

67. Constable Kleber was assigned to search this premises. He said he attended the premises with a number of other officers and observed that Police had already gained access.

68. He said he conducted a video walkthrough of the premises, with the footage caught on his AFP mobile telephone.

69. At approximately 12:07pm he said he was requested by First Constable Oliver Bill to search a bedroom at the rear, which was referred to as bedroom 2. He said that during this search he located a black baseball cap, black Kathmandu brand jacket, wallet and cards. At approximately, 1pm, he began a search of the garage of the residence where he located a black backpack which contained two black balaclavas under a temporary shelving unit. He said he then bagged and sealed the backpack containing the balaclavas and delivered it to Detective Sergeant Watson. He said he observed him record the item on a property seizure record.

70. Constable Kleber also attended an address at [redacted] Jarrah Street, Karabar, NSW for the purposes of assisting in an ongoing s 3E Crimes Act 1914 search warrant where he did not locate or seize any items.

Statement of First Constable Kirsty Jane Dodwell

71. Kirsty Jane Dodwell is a First Constable of Police with the AFP, attached to the criminal investigations, major crime squad at Tuggeranong police station.

72. First Constable Dodwell met with Senior Constable Beau Tennant on 1 May 2024 in relation to the incident, and was tasked with attending local shops in Oaks Estate to make enquiries in relation to the availability of CCTV which may have captured the vehicle which was used to get away from the scene. These attempts were unsuccessful.

73. First Constable Dodwell also attended [redacted] Winchester Place Karabar NSW to execute the aforementioned s 3E Crimes Act 1914 search warrant. Upon police gaining access via an unlocked garage door, First Constable Dodwell called Mona Wighton who advised she would be home shortly. Upon arrival, she said she commenced a record of interview with Ms Wighton and Ms Kearni Cross and provided them with a copy of the search warrant for the premise.

74. Detective Seargeant Watson read the contents of the property seizure record to Ms Wighton who she observed to agree was a true and accurate record of the items seized from the premises.

75. On 6 May 2024, First Constable Dodwell attended the Canberra Hospital and offered HN another opportunity to provide evidence in chief interview in relation to the incident. HN declined this offer. She said she observed HN sign a consent form to obtain patient medical information from the Canberra Hospital and Queanbeyan Hospital of which she was a witness to.

Summary of evidence

FT

76. On 3 May 2024, FT participated in evidence in chief interview with police. In that interview she described being with HN walking along George Street in Oaks Estate sometime after HN’s brother had been ‘raided’ by police. They were required to leave his home for six hours as a result. She said that she, HN and Jessica, HN’s sister, were at Brett’s house after the raid when she and HN decided to go for a walk by themselves. She said she had consumed two alcoholic drinks at Brett’s house before they went for a walk, but she was not drunk. HN had not been drinking.

77. She said at close to 1 o’clock in the morning an orange car drove past them when they were stopped near a tree. The car drove down to the bottom of the street, performed a u-turn and drive back up toward where they were standing. She noticed the vehicle did not have any ‘plates’ and thought the vehicle was an orange Toyota Yaris because she said she knows “cars pretty well”. She said she thought the car being there was “weird” because they know every car that came in and out “most days”. She described the vehicle as “scrappy looking” and she was pretty sure it only had two doors and that there was no one else in the car.

78. She said a person “being Bronson” got out of the car and had a gun in one hand. She said he had a ‘hoodie’ on and a plain black face covering to his nose and he walked toward them. She described the gun as being “brown, like wood, tan colour”.

79. FT said the person walked over to them and said “is that you HN, do you want to get fucken shot?”. And HN was “like, I don’t bro” and told Bronson that the police were in the next street. She said the man started to freak out with that information and said “are you fucken lying to me?” and became “like, hesitant to do it” because he stopped aiming the gun and the exchange with HN went back and forth.

80. FT said she was standing next to HN but also behind the tree to try and hide so she would not get shot. She described HN as being closer to the road than she was. She described hiding next to the tree but putting her head around so she could “see everything”.

81. FT said the shooter kept repeating “Do you wanna get shot?”. She said she was “freaking out” and she did not say anything.

82. HN was holding his hands up palm up in front of him imploring the man not to shoot and repeating that “cops” were in the next street. The man she was “adamant” that he was going to do it. She said HN was “pretty close” to Bronson. She said she saw HN “jolt back” after one loud bang. She described the shooter as aiming the gun at HN’s chest and head area.

83. She said that within a minute “HN copped it” and the man shot the gun once. She said she was facing HN when the gun went off. She said she did not think HN actually got shot because he ran down the hill to their friend Brett Clark’s house.

84. She said she saw everything except for the man getting back into the car and driving away, and she was not sure if Bronson was going to reverse and do it again. She said when HN ran, she ran and she fell over because she was looking back to see if Bronson was coming again. She said she took long way. She said she got to Brett’s house and HN said “I’ve been shot, I’ve been shot” and she saw that he was bleeding. She said HN was panicking and said he was going to faint. She said HN said that it was “Bronson” because he was carrying a grudge because of a dispute they had had some time ago.

85. FT said “Brett’s Dad” who later in her evidence she named as Garry Clarke took them to Queanbeyan hospital, they arrived there “closer to 2” and HN required surgery. FT explained that she did “not know Bronson personally” but she had seen him in the weeks prior “coming and looking for someone else a couple of weeks ago”.

86. She described being at a friend’s residence “a month ago” when Bronson came to the home looking for someone when she was in the shower. She said she knew Bronson because she had seen him on occasion in the past when he was with her “ex” which was “like, hi and bye” because she was dropping off some “smokes” to them. She said the accused “added” her on Facebook “a couple of months ago” and his profile included a picture of him.

87. On the occasion a month prior at her friend’s house, she said she saw Bronson “face to face” and looked into his eyes and described them as “black and, like brown eyes”. FT said was in the shower at her friend’s house and she pulled the shower curtain back and saw the accused in the bathroom with her and she told him to get out. FT said the accused was looking for her friend who then ran from the house and the accused chased him.

88. FT said the accused was carrying “the gun” with him that he used to shoot HN and that the interaction she had with him at her friend’s house lasted five minutes.She said Bronson put the same face covering on as he walked out of her friend’s house as she saw him using when he shot HN. FT said she was not drinking or using any illicit substances when this interaction with the accused occurred at her friend’s house.

89. FT said prior to the event where HN was shot she had met or spoken with the accused “once or twice”. FT said she had spoken directly to the accused on one occasion being “the last incident”. She also said she had in the past heard the accused’s voice when he was in conversation with her “ex”.

90. She said she “knew his voice because I just heard it over the past few weeks”. FT said “It’s just I know him and, like – like, he’s just got a voice that I can tell that it’s him type of” before described ‘Bronson’s’ voice as “dark and deep”. FT said there was one streetlight in front of the tree she was standing behind and the headlights on the vehicle were off.

91. FT said she did not “really know” Bronson but gave the following description of the person she said she knows to be Bronson: (a) Black; (b) “Sort of, probably” close to 6 feet tall; (c) Not big but not small; (d) “Staunch”; (e) Carries himself like he is not scared.

92. She said the man was wearing a cream-coloured hoodie and navy-blue chinos. She said he did appear hesitant “of doing it”. FT said she recognised the man as Bronson when he got out of the vehicle and she saw his “shape”, heard his voice and “it’s the same, like, attitude and like, threats that was doing weeks ago when he’d done it to my mate in the house”.

93. She said HN did not say the accused’s name when they interacted before he was shot.

94. FT thought the firearm was a “12-gauge shotgun or a double barrel shotty”. FT demonstrated that the man was holding the firearm with two hands; one further along the barrel of the firearm, one closer to the trigger.

95. FT said since the incident she had spoken to HN about the “whole thing” and that HN said the shooting was as a result of “beef” between him and the accused from when they were younger.

96. In response to questions from the prosecutor, FT confirmed that she first met the accused with her ‘ex’ when they bumped into each other in August 2024 or maybe the year before. She said they were at the shops, and the accused and her ‘ex’ used to go to school together.

97. She said she had been homeless for about 10 years and moved around and “been everywhere and all over the shop”. At the time of the shooting of HN, she was couch surfing at HN’s brother’s house. She said this was something she did at various times, and she had also stayed at Brett’s house.

98. She said she had “crossed paths” with the accused “probably once or – or more than once, but at least three or more times, just when he pops in, in and out of people’s houses around the area because they all know him”.

99. She confirmed that the accused added her on Facebook around the time she met him with the accused. She said she uses Facebook a “fair bit” and recalled the accused’s profile having a photo which she recognised as him, but that she had not ever engaged with him on Facebook. FT said on the occasion at her friend’s house she recognised the accused. FT said the shower incident occurred two days prior to the shooting and the occasion when she first met the accused with her ex was months prior to the shower incident.

100. She could not see who was driving when she first noticed the orange car because it was “too dark”. She was able to recognise the accused because of the streetlight. She said she recognised the accused when he asked HN “Is that you HN?” and she confirmed that when questioned by police at the Queanbeyan Hospital who the shooter was when she told them it was Bronson Cross.

101. In cross examination FT said she was at HN’s brother’s house when it was raided but she did not know whether the ‘raid’ had finished by the time of the shooting.

102. FT said she and HN were walking up the hill to walk out of the street but stopped when she noticed that the car did not have any plates on, and HN called her over to make it look like she was giving him a cigarette.

103. FT disagreed that when car first entered George Street, they were both standing still and she said they were not waiting for anyone. FT agreed that HN told her it was Bronson Cross who had shot him at the hospital. She said she did not tell HN it was Bronson Cross, HN told her it was Bronson Cross.

104. FT said she recognised the shooter as the accused when he first started speaking. She said that with the light of the street lighting, she could see his face from his chin to his forehead as he moved closer to them.

105. He did not pull anything over his face at any time in the incident. The streetlight was to the right side of the shooter as he was facing her right next to passenger side of the car. All three of them were under the streetlight.

106. FT said there was nothing distinctive about the shooter’s voice. FT said that she could see that the car was a Toyota branded car on the back and recognised as a Yaris; an older model incompatible with bluetooth function.

107. She said the headlights on the vehicle were very weak and she could not be wrong about that. FT said she had gotten her years mixed up when giving her evidence and the time when she met the accused with her ex, Jonah was in 2023 at Queanbeyan shops. She said the accused was there with his brother who she thought was the accused’s twin named Jermaine. She thought Bronson had a moustache and his brother did not. She said she thought his brother might be older than the accused. She said the accused asked ‘them’ to come and have a “drink up” that night with him at his home. She said Jonah and the accused went to primary school together. FT said she was not “introduced” to the accused but after this meeting the accused “added” her on Facebook. FT said the interaction on this day went for minutes. FT said later Jonah did go to meet the accused and she dropped “smokes” off to them, but she did not see the accused. She said it was when Jonah contacted her on her phone to ask her to bring him cigarettes that she heard the accused’s voice in the background.

108. It was suggested to FT that she did not meet the accused at the Queanbeyan shops however she maintained that she did.

109. FT confirmed that the shower incident occurred two days prior to the shooting. When she was reminded that she told police it was a month prior, she said she was bad with time. She said the shower incident occurred at “Sam’s house” who lived next door to Brett Clarke. Sam was not the friend who the accused was looking for and was not home when the “shower incident” occurred. The accused, she said, was looking for a man called Justin Nano. She said the accused broke into Sam’s house using a speaker he sourced from Brett Clarke’s house.

110. FT said she was in the shower, she heard a smash and she pulled the curtain back and Mr Nanno was in the bathroom, and she told him to get out and he did. The man who she said was the accused then came into the bathroom. FT said she got out of the shower and wrapped herself in a towel and went to the lounge room/kitchen area and encourage Mr Nanno to come out and face the accused. He did come out from where he was hiding but eventually “took off” whereupon the accused climbed out the window after he threatened to shoot the dog and being unable to open the front door.

111. FT agreed she told police that she had not seen the accused hanging around the Oaks Estate area before the shooting. FT said she heard from HN that the accused had previously tried to run him over.

112. FT confirmed her belief that the accused was the person who shot HN and did not accept that she could be wrong about that. In re-examination, FT confirmed that she could see the Toyota brand logo on the back of the orange car. She said it was the silver Toyota symbol and made a round shape with her hands and fingers.

113. FT said she was “pretty sure” the accused’s brother was older than him and that could tell “which one was which” if the accused and his brother were “standing in front” of her. She said the accused had a moustache when she interacted with him at the Queanbeyan shops and that when she heard him in the background of the phone call with Jonah encouraging her to come to the party. She said she “assumed” it was the accused. She thought that Jonah may have used the accused’s phone to call her because Jonah did not have a phone. She confirmed that she did not see anyone other than Jonah when she dropped off smokes to him.

Garry Clarke

114. On 1 May 2024, Garry Clarke took his son who lives at Oaks Estate on George St a meal. At the residence when he arrived was his son, HN, a girl named FT, and Jess who was related to HN.

115. He said close to midnight HN and FT left to go somewhere, and he was watching television with his son. Mr Clarke said his son heard a bang and said to him that it sounded like a gun. Mr Clarke said that replied to his son that it was a car back firing. They didn’t make any inquiries about the bang. Mr Clarke said HN came back down and yelled out “I’ve been shot”. Mr Clarke observed blood on HN, and he told HN that he needed to go to hospital. Mr Clarke said HN “murmured” something about who shot him “something Cross” and that is all he heard.

116. FT arrived a minute after HN arrived at his son’s residence. She told Mr Clarke that she was hiding and scared. Mr Clarke said FT told him it was Bronson Cross who had shot at them. Mr Clarke described FT as “shaken up a bit”.

117. Mr Clarke described putting HN in his car and driving to Queanbeyan Hospital. FT and HN went into the hospital, and he went to park his car. Mr Clarke went into the hospital and spoke to a nurse telling the nurse that HN had been shot. Queanbeyan police attended the hospital, and he spoke to a Constable Emma whose last name he could not recall. He said he told the Constable what had happened, and he was told that the “Canberra police” would be involved.

118. Mr Clarke said it was at the hospital that HN told him that Bronson Cross had shot him.

119. Mr Clarke said at the hospital FT described what happened to him. She told him that they were walking along when a small ‘Yaris’ car pulled up.

120. Mr Clarke said he did not know Bronson Cross.

Kaine Downey

121. Mr Downey is HN’s cousin. Mr Downey said he went to The Canberra Hospital to visit HN at 8am or 9am in the morning of 1 May 2024. He said HN had numerous wounds that he observed.

122. Mr Downey identified text messages between himself, FT and Aaron. Aaron being HN’s brother. Those messages informed him that HN had been shot.

123. At the hospital HN told Mr Downey that he left Aaron’s house to leave Oaks Estate and he was walking with FT. HN said that a little Toyota hatchback pulled up and a person pulled out a shotgun. HN told him that he ran to a house, and he was taken to the Queanbeyan hospital. Mr Downey described HN as not wanting to say who the shooter was but that eventually disclosed to him that the ‘shooter’ was Bronson Cross. HN told him that he and Bronson had ‘history’ over the years. Mr Downey said he thought HN and the accused had known each other since school.

124. Mr Downey said he spoke to FT through messages, and she did not give him much detail, but she told him the same thing that HN told him.

125. In cross-examination, Mr Downey agreed that HN told him that when the shooting occurred, he was on his way from his brother Aaron’s house to someone else’s to try and get a lift to go to his sister, Lisa’s house.

Bruce Whalen

126. Mr Whalen gave evidence that he observed a gold or orange coloured Nissan Micra with registration plates YQA 06U that randomly appeared at the complex he lived in at Isabella Street, Queanbeyan from around September 2023. He described his property as a complex with seven properties on the lower level and “two behind”. He said the complex faces onto the river near the bridge in Queanbeyan.

127. He observed the vehicle more than a dozen times since it first began frequenting the property. Mr Whalen said that the last time he saw the vehicle at his residential complex was 19 March 2024 at about 7:30am when the driver brought it through the driveway. He stated he knew it was at around 7:30am because that was the time he was leaving for work. Mr Whalen said that the person driving the car did look familiar, however it was dark and that he could not describe the driver except to say that they were a man with “darker skin”. He said he saw other people driving the vehicle however could not describe them.

128. Mr Whalen said he had not seen the vehicle without registration or different plates however he was aware that the registration had expired. He said that he had checked the registration through the ACT registration approximately when the vehicle first began appearing regularly in around September 2023. He said he took photos of the vehicle as there had been issues regarding ‘parking, people who should not be there, cars turning up on all hours’ and therefore would take photos of any car he did not recognise. Mr Whalen identified photos shown to him as the photos he took of the vehicle parked near his complex.

129. Mr Whalen said in cross examination that he saw the driver of the vehicle interact with a female resident of the complex and that on 19 March 2024 that resident appeared to be expecting the driver because she had run out to greet the driver of the vehicle on that occasion.

Michael Huddleston

130. Michael Huddleston is a resident at Winchester Place, Karabar.

131. Mr Huddleston spoke with the police in August 2024 in relation to a car which was parked outside his residence. He said police had asked him if he had seen the car, and he had seen it. His evidence was that it was a mini ‘yellowy’ colour, had hail damage and sat there for a week or so. He said the make of the car was some kind of ‘mini minor’. He said it was parked near where you drive out from the residence where residents and visitor’s park. His evidence was that he saw the vehicle when driving in and out of the residence. He never saw anyone drive the vehicle and however agreed that police had asked him about the vehicle in August 2024.

132. Mr Huddleston was shown exhibit 4 and agreed that the vehicle in the images was the car he was referring to. He said police went through CCTV footage that had been captured from a motion operated CCTV camera that he operated out of his residence.

133. He said the CCTV camera captures a field of vision across the road and the driveway of the complex where his residence is. His residence is down the bottom of the driveway. He was shown an image from the top of the driveway of Winchester Place and marked residence [redacted].

134. He said ‘Mona’ lived at [redacted] however he did not know her last name. He said he thought her grandsons may have lived with her. He agreed that Ms Denise Chong lives at [redacted].

Denise Chong

135. Ms Chong lives at [redacted] Winchester Place, Karabar. She has lived there for a bit over 4 years. She spoke to police in August 2024 in relation to a car which had been parked out the front of her residence. Her evidence was that it was a gold-coloured car which had been parked in the visitor’s area of the complex for about a week. She recalled it might have been in May. Ms Chong was shown exhibit 4 and agreed that was the colour of the car. She said the car did not have registration plates and it looked like it had hail damage.

136. Ms Chong said that residents do sometimes park in the visitor’s spot and that there are two visitor’s car parks and they are out the front of her place. She said that there is only 1 vacant visitor’s spot. Ms Chong identified where the car was parked by refence to exhibit 5.

137. Ms Chong stated that Mr Huddleston lives at [redacted] and Mona Wighton lived at [redacted]. Ms Chong was unsure whether anyone else lived at [redacted].

138. In cross examination, she said that residents also have a space of their own directly outside their own unit. She stated that she had never seen the gold-coloured car parked outside [redacted].

Adam Devine

139. Mr Devine said he “picked up” a vehicle with ACT registration YQA 08U, for free from Facebook marketplace. He said he was driving it around for a while and it was registered it his name.

140. The vehicle was a gold Nissan Micra with stickers all over it and scratching damage to the side and a window out. The last time he saw the vehicle was in 2021.

141. Mr Devine said he initially lent the car to Mr Ben Towney who needed it to drive around and then he gave it to him. Mr Devine said when he last saw the vehicle it had registration plates attached to it YQA 08U.

142. He described Ben Towney as having fair skin, 184 centimetres tall with dark hair and no facial hair at the time.

143. Mr Devine said on 30 April and 1 May 2024, he was in rehabilitation in Goulburn at Mandala House. He said he was there over his fortieth birthday which was on 17 June, and he went to Mandala House about a month before his birthday. He was there for 3 months and 5 days. He agreed he was admitted there on 3 April 2024 and prior to that he was in the mental health ward for 10 days.

144. He said he did not leave Mandala House in the early stages of his timethere for a month and 10 days, when he was not permitted to leave the facility at all. After that time, he only left the facility with chaperones. He said there is a roll call three or four times a day.

145. He gave evidence that Ben Towney’s partner was Ebony Scott and that she lived near the Queanbeyan River. HN

146. HN agreed that he participated in an evidence in chief interview with police in June 2024 about an incident he was involved in on 1 May 2024.

147. In the first interview conducted on 1 June 2024, HN said that he remembered he was shot and that it happened when he was walking to go and check on his sister because her house was “raided”. HN said he saw a “bright orange” or a “creamy” coloured car, but that he was confident it was orange. He described the car as a “bubble-looking” car. HN said it was “pretty dark”. HN said the incident happened at Oaks Estate. He said that the car performed a u-turn and came past him and stopped. He said “they” jumped out and asked if I was “HN” to which he replied “yes”. He said the “he” ran to the car, ran back and pulled something out and started yelling. HN said he told ‘him” that the police were in the next street, and he continued yelling and “then shot me”.

148. HN said he panicked but that he could not remember much more than that.

149. In the interview, HN said he could remember the day or the month the incident occurred. HN said he was with “FT”. He did not recall her last name. He said she went to the hospital with him, and he had not seen her since. HN said Bronson Cross shot him. He said he knows Bronson Cross because he went to school with him for six years. He said the accused was a tall, Aboriginal man. He said the accused was wearing dark clothes and had something over his face.

150. HN said he was shocked when he saw it was Bronson Cross because he would never have thought that Bronson would shoot him. He described thinking “don’t run” and that the accused hesitated to shoot him so he froze. He said he saw the shotgun “click back and shoot him in the chest”. HN said he saw the shot and then five seconds later it hit him.

151. HN described the gun as “sort of dark. Like, really – like, a dark blue or something”. HN said after he was shot, he noticed blood and he ran down the street to the first door he saw open, and he went straight to the hospital. HN said he thought he was going to die “100 per cent”.

152. HN described an earlier altercation with the accused after the accused ran into a friend’s house where he happened to be. He said the altercation included them hitting each other. HN described himself as “coming out on top”. He said the altercation happened “last year maybe”. He said after the altercation there was no issue because they shook hands “and everything”.

153. He next saw the accused “downtown” in Woolworths at Queanbeyan and described a brief interaction with the accused where they said ‘hello’. The next occasion HN said he saw the accused was when the accused shot him.

154. In the next interview with police conducted on 28 June 2024, HN described an incident involving the accused six or eight months prior to the shooting at his brother Aaron’s house. HN said the accused was sitting in his brother’s lounge room. HN recalled asking the accused if he had any problem with him and the accused said “no”. HN said he and the accused shook hands.

155. On this occasion, HN said the accused asked him where he was living, and he told him. HN described the accused as tall, skinny, black hair, 20 years old “maybe a bit younger and Koori”. HN said he went to Queanbeyan South and Queanbeyan High with the accused, and he thought he was at least two years above the accused in school.

156. HN said the accused was taller than him and he was six foot tall. He said he did not socialise with the accused. HN described the accused and his family as Karabar “locals”. The accused went to school with HN and “then moved away”. HN said the before seeing the accused in the lounge room on his brother’s home there had been an interaction with them where the accused “tried to attack me in my house”.

157. HN said this altercation occurred over his then housemate. The accused and his housemate “just had problems with each other”. At the time of the altercation HN said he was home alone. HN said the accused during this altercation “just booted in my door and started throwing hits at me and that”. HN said the accused grabbed a knife and he put the accused “on the ground”. After this incident HN said the accused’s father, who he knows to be Richard Cross, came to his house and tried to “fight” him.

158. HN was asked about an incident where he was “driven at” walking home in Karabar. He described being on the footpath at about 2am after seeing Bronson at his brother’s house and said, “I went to cross the road and then I, like, heard something come – like, come on the footpath next to me and I turned and then, yeah, it happened”. HN said when he got hit by the car he passed out and he went straight to Woden in an ambulance.

159. HN was played three clips of CCTV footage captured at the time of the incident from a home in Oaks Estate.

160. The first two clips were taken from a home where the vehicle came to stop. The assailant and the vehicle can be observed. HN and FT cannot be observed.

161. The third clip captured HN and FT to a limited extent.

162. Some words can be heard on the footage. Some of those words were consistent with words FT and HN recalled being said. HN said as soon as he heard the assailant’s voice, he knew it was Bronson Cross. HN said that the accused asked if it was him and he “rambled on about something” and the accused said that HN “was talking shit”. HN told the accused he said that there were police in the next street.

163. HN said he ran to Brett Clarke’s house and Mr Clarke’s father was there. HN said he told FT to run, and she ended up going to Mr Clarke’s house. He said she arrived a matter of minutes after him. HN said when he went through the front door he kept asking if he face “was okay”. He said he did not say anything to the people in Mr Clarke’s house “at that point”. HN said he did eventually say that it was “Bronson” who shot him.

164. HN could “not particularly” remember anything that FT said to him when she arrived at Mr Clarke’s house. HN said he was screaming because of the amount of blood and Brett Clarke told his father, Garry to take him to the hospital. FT accompanied him to the hospital.

165. HN said he went to Queanbeyan South primary school with the accused perhaps around 2011. He said he would “not describe them as really good friends, just friends”. HN said they would spend time with each other after school. He said he had not hung out with Mr Cross over the last few years, but he had seen him “around town”.

166. HN could not recall how long he spoke to the accused at Queanbeyan Woolworths. When asked it is was polite or friendly HN said it was more like “hi and bye”. HN said the altercation with the accused at his brother’s house went for five minutes.

167. HN said he was shocked to see the accused at his brother’s house because he did not think he would be there. HN said the accused just smiled at him and said nothing. HN said he asked the accused if he had a problem with him and the accused replied “no”.

168. HN said his brother kicked him out of the house straight after the conversation. HN said his brother was aware of the altercation between them. HN said he did not “hang around” any of the accused’s friends or associates.

169. HN said he does not know the accused “well” but went to school with him. HN said he was aware that the accused has a brother Jermaine and a “couple of sisters”. HN said Jermaine is the same age as him and they were in the same year at school.

170. HN said he had seen the accused’s brother Jermaine “once or twice” since school. HN said he does not know what Jermaine looks like now and he was not good friends with Jermaine. HN said he was better friends with Bronson. HN said he had not seen the vehicle before the incident and had not seen it again after the incident.

171. HN described that there are 84 pellets from the shot fired at him that remain in his body. HN explained that he was recently remanded in custody in NSW, and he is currently on parole. In cross-examination, HN was taken to his second evidence in chief interview where he told police that he went to high school with the accused. He agreed he did not go to high school with the accused and said he was “confused”.

172. He agreed police attended after the altercation with Mr Cross at Mr Miller’s house. The accused was not there when police arrived. HN said he did not tell police what happened because they already knew. HN maintained that it was the accused who was involved in the altercation with him at Mr Miller’s house and rejected the suggestion that he was mistaken about that.

173. HN said he did not tell police at The Canberra hospital that the incident at Mr Miller’s house occurred five years before the shooting. He said he was “highly medicated” at the hospital, and he could not recall what was said at the time.

174. HN was shown footage taken at the Canberra Hospital where he was recorded as telling police that there was only one reason why the accused “would do it” and went onto described an incident with Mr Miller that happened four to five years ago. HN said he had no recollection of that footage being recorded.

175. He accepted the incident with Mr Miller happened “a fair while ago” and the worst of the physical injury he suffered was a black eye. HN said he did not observe whether the accused had any injury arising from that altercation.

176. HN rejected that the meeting at Queanbeyan Woolworths did not occur. He rejected the suggestion that he was mistaken about seeing the accused. HN recalled the period between seeing the accused at his brother’s house and the shooting was “not even a year”. HN said he shook the accused’s hand and told the accused his accurate address.

177. HN rejected the suggestion that the meeting with the accused at his brother’s house did not occur. HN disagreed that the last occasion he saw the accused was when the accused was aged 11. HN said he had a “rough idea” that the accused had at some point left Queanbeyan. HN said he was not aware of anyone else who wanted to hurt him at the time the incident occurred.

178. HN was played another portion of video of the interaction he had with police at The Canberra Hospital where he was observed to be in a hospital bed, shirtless, and hooked up to medical machinery with FT at his bedside. In this video, HN states in response to being asked “Why does Bronson have beef with you?” that “if I gave two flying fucks about what people thought about me, I’d be a fucking millionaire”.

179. HN conceded that at the time of the shooting that there might be people in the community who wanted to hurt him. HN also stated that at the time of the shooting “oh yeah it was dark”. HN said immediately prior to the shooting he was at his brother’s house. HN said the first time he went to Brett Clarke’s house ever was when he ran there after he was shot at.

180. HN said he was able to identify the shooter’s voice as the accused’s voice because it was “the same”. He said initially he thought they were just going to “have a go” and it was not until he saw that there was a gun that he realised there was a prospect he might be shot. HN said he looked at the gun and at the shooter. He said he was “pretty scared”, but he did not think that he was going to be shot.

181. HN disagreed that he was distracted by the gun. He said after telling the shooter that the police were in the next street, the accused yelled at him and HN said it was then that he “froze”. HN said there was “no way in hell” he would accept that it was not Bronson Cross who shot him.

182. In re-examination, HN said he was not medicated until after the video footage which was played to him in cross-examination. He described fainting at some point in emergency. HN said when he said “have a go” he was referring to the prospect of a physical fight. HN said he thought he was 19 or 20 when he saw the accused again after he returned to live in Queanbeyan.

183. HN conceded he did not actually know when the altercation with the accused at the Miller home occurred. HN said his sister Jessica went right to the end of River St to their mother’s ex-partner’s residence when their brother’s home was raided. HN said he walked her there and that is where he had come from when the shooting occurred.

184. HN said he and FT were together from the time of the raid until the shooting occurred. HN said he went to Brett Clarke’s house because Brett “has a kid to my cousin” and it was safe. HN said his sister was down the end of the street.

Constable Emma French

185. Constable French is an NSW police officer. She attended Queanbeyan Emergency Department and saw HN in a hospital bed with multiple wounds on his stomach. She recorded a version of events given to her by HN on her body worn camera. The officer also spoke to FT and Mr Garry Clarke.

186. The body worn camera footage taken of HN and Mr Clark at the Queanbeyan Hospital was played.

187. The footage depicted: (a) HN describing walking along and a person stopping a vehicle and getting out to shoot him. He described the shooter as “being pretty fucken close” to him when he was shot. (b) HN said he went to school with Bronson and that the shooting was over something that “happened a while ago”.

188. Constable French said that she attended an earlier incident that happened “quite a few years ago”. HN said to her that the vehicle driven by the accused at the time of the shooting did not have any “plates” on it.

189. Mr Clark was recorded telling the officer that he was at his son’s house with HN came to the house and that he said, “he’d been shot”. HN said he had heard a bang and did not think any of it. Mr Clark said that FT then arrived “thirty seconds behind” HN. Mr Clarke said they could not “get much out” of HN but he did say that it was Bronson Cross who shot him.

190. Constable French said that after making those initial inquiries the investigation was handed over to ACT policing. On the next day, she was on duty at the Queanbeyan Police Station, and she was informed that Bronson Cross had attended to report on bail, and he was arrested.

191. Constable French said Bronson reported to her that he was not feeling well. As a result, he was taken by ambulance to Queanbeyan hospital where he spent three hours before being returned to the police station.

192. The officer said at 9.53pm on 30 April 2024, she attended the Winchester St address to do a bail compliance check, and no one answered the door when she knocked.

193. In cross-examination, the officer identified a ‘fit for custody’ assessment that was provided to her when Bronson Cross was released from the Queanbeyan hospital on 1 May 2024.

Constable Maddison Shoemark

194. Constable Shoemark is an NSW police officer based at Queanbeyan police station. On 11 April 2024, she located a vehicle that had been identified as a vehicle to be kept a look for.

195. On 1 May 2024, Constable Shoemark was on duty from 6pm. She learned that Bronson Cross was wanted by police in relation to a shooting. He attended Queanbeyan Police station, and she arrested him.

196. He was taken to Queanbeyan Hospital under guard, provided medical treatment and released from hospital back into police custody.

197. She described Bronson Cross pointing out to her some of his family members in a white vehicle outside of the police station and a family member attending the police station while Mr Cross was in custody to provide him with some cough lollies.

Senior Constable Charles Gannon

198. Senior Constable Gannon is an NSW police officer stationed at Queanbeyan Police Station.

199. On 12 April 2024, Senior Constable Gannon said he was on patrol when he saw a gold Nissan micra driving with no headlights on. He said he observed two people inside the vehicle. As a result, he created a ‘keep a look out’ notification on police broadcasts

200. He later found the vehicle. It was unlocked and he checked the registration of the vehicle and discovered it had expired. He removed both the front and rear number plates of the vehicle.

201. Senior Constable Gannon said he located the vehicle on Jarrah St, Karabar, NSW.

Detective Acting Sergeant Keira Seton

202. On 1 May 2024, Detective Acting Sergeant Keira Seton received a briefing regarding an incident involving a shooting.

203. Detective Acting Sergeant Seton together with Sergeant Mark Battye went to the location and spoke to FT and Mr Brett Clarke.

204. Detective Acting Sergeant Seton said she had been told that a person of interest had been arrested.

205. On 2 May 2024, she attended the ACT Magistrates Court to obtain a s 3E Crimes Act 1914 search warrant. Following this, she and Sergeant Battye attended Queanbeyan Police Station to execute the warrants.

206. A property seizure record detailed that a grey hooded jumper and a mobile telephone were seized from the accused.

207. On 28 November 2024, she was on shift when she was advised that a vehicle suspected to be involved in the shooting of HN had been located at a residence in Queanbeyan.

208. She then obtained a warrant which was executed at [redacted] Boronia Crescent in Karrabar. There was nobody at the residence at this time and a vehicle was located. She said it was it was a gold a gold Nissan Micra that had been painted black. She observed it to be extremely deteriorated with both the wheels and the interior of the vehicle having been removed. It was subsequently towed from the residence.

Detective Senior Constable Sean Cunningham

209. On 1 May 2024, Detective Senior Constable Sean Cunningham was attached to the major crime squad at Gungahlin.

210. On 1 May 2024, he commenced duties at Winchester Police Station at about 3:15am and was in plain clothes however carrying his police accoutrements. He and Senior Constable Beau Tennant were notified there had been a reported shooting at Oaks Estate and were required to respond accordingly. A person of interest was named as Bronson Cross.

211. They attended River St at Oaks Estate. A line search was conducted with uniform members to find any items of interest.

212. A uniformed member located a firearm ammunition shell or casing outside of [redacted] George Street during the line search.

213. Detective Senior Constable Cunningham went to the Emergency Department at the Canberra Hospital and spoke to HN and FT with Senior Constable Tennant. HN and FT indicated to Senior Constable Tennant that they did not wish to make a statement. HN did consent to some photographs being taken.

214. Together with Senior Constable Tennant, he returned to Oaks Estate and conducted further inquiries which yielded CCTV footage taken from [redacted] George St, Oaks Estate. Detective Senior Constable Cunningham said after the accused was arrested, he made further enquiries about whether there was any CCTV footage around the areas where he understood the accused’s grandmother lived in Winchester Place and where he understood the accused’s father lived which was Jarrah St in Queanbeyan. No CCTV footage was identified. Detective Senior Constable Cunningham said that on 1 July 2024, a warrant was executed at Winchester Place. Present at the residence were the accused’s grandmother and his brother.

215. On 28 November 2024, he participated in the execution of a search warrant at [redacted] Boronia Crescent Karabar. A Nissan Micra was in the backyard covered by a tarpaulin and a mattress. It appeared to him that the vehicle had been spray painted black.

216. In cross-examination, Detective Senior Constable Cunningham agreed he collected CCTV footage hard drive from [redacted] Winchester Place at Karabar. This was the residence opposite the accused’s grandmother’s residence. Detective Senior Constable Cunningham took the CCTV hard drive to AFP forensics for analysis.

217. Detective Senior Constable Cunningham said he did not view the CCTV footage taken from that residence. Detective Senior Constable Cunningham described there being some difficulties accessing that CCTV footage which was why it needed to be analysed by AFP forensics.

Brett Hackshaw

218. Brett Hackshaw is a fingerprint examiner/expert with the AFP. Mr Hackshaw had worked for the AFP for two years and commenced his fingerprint forensic career in 2002.

219. Mr Hackshaw conducts fingerprint examinations, analysis, comparison, evaluation and verification of fingerprints, as well as a range of duties around those tasks.

220. Mr Hackshaw was tasked with the analysis of fingerprints lifted from a rear vision mirror of a gold Nissan Micra and those fingerprints were insufficient for any comparison to be made. Senior Constable Beau Tennant

221. Senior Constable Beau Tennant was the informant in this matter. He attended the scene of the shooting on the morning of 1 May 2024. He participated in a line search where an item in connection with firearm use was located. Senior Constable Tennant went to the hospital and spoke to HN. HN told him he had been shot. HN said the person who shot him was Bronson Cross. HN did not wish to make a statement. FT was also at the hospital.

222. Senior Constable Tennant took photographs of HN which he identified and were tendered. Senior Constable Tennant returned to Oaks Estate and made further investigations including requesting the attendance of forensic officers. Senior Constable Tennant was made aware that CCTV had been located which captured the incident.

223. Senior Constable Tennant made inquiries about vehicle registration YQA 06U and discovered it was registered to Aaron Devine. Senior Constable Tennant successfully applied to extradite the accused from NSW to the ACT.

224. Senior Constable Tennant conducted checks in relation to the accused’s mobile phone and received the call charge records, the register of firearms and the NSW Department of Education with respect to the schooling records of the accused and HN.

225. Senior Constable Tennant obtained warrant for [redacted] Winchester Place, Karabar. The warrant was executed on 1 July 2024. Senior Constable Tennant executed the warrant, and Mona Wighton answered the door. Her grandson Jermaine Cross was also present. Senior Constable Tennant said Mr Cross “appeared to be Aboriginal” which he clarified as meaning that he observed Mr Cross had dark skin.

226. Ms Wighton and Jermaine Cross declined to participate in a conversation with police.

227. Senior Constable Tennant obtained phone calls the accused participated in which were recorded when he was an inmate at the Alexander Maconochie Centre. The calls were played. The calls were recorded sometime between 2 May 2024 and 19 July 2024. On 11 March 2025, Senior Constable Tennant obtained a stored communications warrant in relation to the accused.

228. Senior Constable Tennant obtained a copy of the accused’s birth certificate which recorded his birth date as 30 September 2003. Senior Constable Tennant agreed in cross examination that he had made 4 statements in relation to the matter and agreed that none of his statements included information about a search warrant executed at [redacted] Jarrah Street, Karabar.

229. Senior Constable Tennant agreed that he did not include information in any of his statements regarding Detective Acting Sergeant Seton discovering that [redacted] Jarrah St was not the address of the accused’s father at the time the Nissan Micra was sighted on Jarrah St. Senior Constable Tennant agreed that one of the components of this case was a link between the Nissan Micra and [redacted] Jarrah St. He said it was an oversight that he had not included the information given to him by Detective Acting Seargent Seton about [redacted] Jarrah St not being the residence of the accused’s father.

230. Senior Constable Tennant confirmed that CCTV footage was obtained which was taken from the residence at [redacted] Winchester Place. Senior Constable Tennant agreed that footage captured from 29 April 2024 at 1am until 2 May 2025 at 11:44pm. Senior Constable Tennant agreed that the CCTV footage from [redacted] Winchester Place was the only footage which captured the one driveway in and out of Winchester Place.

231. Senior Constable Tennant was played a portion of that CCTV footage taken on 29 April 2024 from 2:56:25am until 2:56:35am. He agreed that the time stamp on the CCTV footage was 1 hour and 9 minutes behind ‘real time’.

232. Senior Constable Tennant was shown clips from the footage taken on 29 April 2024 at what would have been 6:40am and 8:16am and 2:30am on 30 April 2024. Senior Constable Tennant agreed that the footage he was shown was the only footage disclosed from that CCTV camera because it was the only footage he deemed relevant.

233. Senior Constable Tennant said George St is a dead-end street and agreed that the length of the street was “give or take” 200 meters. Senior Constable Tennant agreed that the accused’s mobile number ends in the numbers [redacted]. A subscriber check for number [redacted] revealed the number to for an account held in Alex Kinleyside’s name.

234. Senior Constable Tennant agreed that there are two text messages sent to the accused by Alex Kinleyside’s phone on 1 May 2024 at 1:55am and 6.35pm. Senior Constable Tennant agreed that there was no response recorded to either message and no other message from the accused making a request of Mr Kinleyside to spray paint a vehicle.

The evidence of Mr Gregory Palethorpe

235. The evidence of Mr Gregory Palethorpe was adduced on a voir dire. The accused objected to the admission of his evidence on the basis first, that it was not relevant and secondly, and in the alternative, it should be excluded by application of s 137 of the Evidence Act.

236. Gregory Palethorpe gave evidence that he works in the geospatial section of the forensic team within the AFP. He has been in this role for approximately 15 years. Mr Palethorpe stated that his involvement in this matter was to input data from the call charge records he was provided into a computer mapping program called ‘ArcGIS pro’. Mr Palethorpe explained that it was his understanding that the program plotted longitude and latitude on a map based on data from the call charge records.

237. Mr Palethorpe explained that it was his understanding that a mobile phone will ‘ping’, (connect with) a cell phone tower when it accesses the network, for example, when a call is made or received or when data is used. Mr Palethorpe stated that he is not a telecommunications expert though it was his understanding that a mobile phone ‘pinging’ on a cell phone tower will generally “mean that the phone has moved up in that direction”.

238. Mr Palethorpe was identified a video that he produced which displayed the effect of the mapping exercise the compute program undertook. He said that the illumination of a tower on the video indicated that a mobile phone was connecting with that particular tower and his understanding was that there was an “allowance” in the region of around three kilometres.

239. Mr Palethorpe also stated that he understood that a mobile phone can connect with a tower both when it is stationary and when it is moving. Mr Palethorpe explained that the call charge record data is created by the “provider’” which is usually a telecommunications company. Mr Palethorpe could not say whether a mobile phone ‘pinged’ or connected with the tower that it was nearest to. Mr Palethorpe agreed that even if a mobile phone was ‘idle’ it could still connect with a cell phone tower. Mr Palethorpe readily agreed he did not have the expertise to express a view about the likelihood of that occurring.

Is the evidence admissible?

240. The prosecution argued the evidence was relevant because it could rationally affect, directly or indirectly, the assessment of the probability that it was the accused who committed the offences.

241. The difficulty with that submission was that Mr Palethorpe’s evidence, absent the expertise necessary to explain the operation of the computer program he accessed, to interpret the map it produced and to interpret the significance of the map with respect to the accused’s mobile phone, could only stand for the proposition that he entered data into a computer program and it produced a map.

242. There was no attempt to qualify Mr Palethorpe as an expert and indeed Mr Palethorpe was very careful to identify that he was not an expert in this area. The effect of Mr Palethorpe’s evidence beyond the performance of the task he performed in loading the data into the ‘ArcGIS pro’ computer program, relied on his inexpert opinion.

243. The prosecution suggested that I could take ‘judicial notice’ of some matters necessary to interpret the map. I do not agree and in any event, it was necessary, given there was no concession as to the accuracy or certainty of any of the evidence which underpinned Mr Palethorpe’s evidence, to understand first, how data collected from telecommunications providers was capable of demonstrating location and secondly, how the computer program, ‘ArcGIS pro’ produced a product which demonstrated the effect of that data. Mr Palethorpe’s evidence was incapable of establishing those fundamental matters.

244. Without the capacity to interpret the map produced, I do not consider Mr Palethorpe’s evidence was capable of affecting, directly or indirectly, an assessment of a fact in issue, namely the identity of the offender on 1 May 2024. Accordingly, his evidence was not admissible, and I have not considered it.

Consideration

245. The prosecution submitted that the only reasonable inference to draw from the combined effect of the evidence is the guilt of the accused.

246. In summary, the prosecution relied on the following matters in support of that submission: (i) The recognition evidence of HN and FT. The effect of this evidence was strengthened the prosecution argued by the identification of the accused at Brett Clarke’s house, the prior relationship of FT and HN with the accused, and the opportunity to observe the accused at the scene of the shooting. Further, the prosecution argued the interaction with HN and the gunman revealed some familiarity consistent with a pre-existing relationship. (ii) The relationship between the accused and HN had previously included physical violence. (iii) A gold Nissan Micra with no registration plates was connected to the accused having been observed in the parking area of the accused’s grandmother’s house at Winchester Place, the residence where the accused was bailed to live. The vehicle was found by police in the back yard of [redacted] Boronia Crescent, spray painted and obscured from view. The gold Nissan Micra used in the shooting had the same distinctive features as the gold Nissan Micra observed at the accused’s grandmother’s house. Senior Constable Gannon removed the registration plates from a gold Nissan Micra on 12 April 2024. Residents of Winchester Place identified the gold Nissan micra observed and photographed by Mr Bruce Whalen as the vehicle they saw parked in their unit complex. (iv) An admission made by the accused in a conversation with his mother from the prison recorded between 2 May 2024 and 19 July 2024.

The admission

247. It is convenient to turn now to the admission the prosecution submitted could be relied upon as part of the case against the accused and the arguments that were advanced as to its significance.

248. The prosecutor identified the admission as contained in this exchange: The accused: Because they’ve got no evidence. Like, it’s bullshit. The accused’s mother: It doesn’t matter. Did he see you? Did he see your face? The accused: No.

249. I accept the submission from the prosecutor that in the context of the conversation with his mother the accused was referring to the charges the subject of this trial. The context of the conversation which led up to the above exchange was the accused recounting to his mother the view his lawyer had taken of the prosecution case which in turn led him to express to her his view that the case “will end up getting thrown out anyway”.

250. The prosecutor submitted that the only inference to be drawn from the accused’s reply to his mother’s inquiry about whether “he” (HN) saw the accused’s face was an acceptance by the accused that the “he” had the opportunity to see the accused’s face because the accused was at the scene of the shooting.

251. There was no submission advanced that the representation from the accused was not “adverse to his interest in the outcome of the proceeding”. The submission for the accused focused on the weight of the admission in circumstances where it came when the accused was recounting to his mother the strength of the evidence against him. In that context, it was submitted to be entirely possible that the accused was referring to what he understood the evidence capable of establishing, noting that the allegation was that the gunman’s face was partially covered. Further, it was submitted that the accused’s response of “no” was equally capable of being interpreted as “no” the complainant did not see his face because it was not him.

252. I will come more to the admission further on in my consideration.

Issues

253. Sensibly, at the outset of the trial, Mr Chen for the accused, nominated the only matter in dispute to be the identification of the gunman. Mr Chen conceded that on the evidence presented in the trial, each element of each offence was made out beyond reasonable doubt including that the injuries suffered by HN constituted grievous bodily harm.

254. Mr Chen submitted that the evidence with respect to the identification of the offender had not excluded a reasonable hypothesis consistent with innocence. Mr Chen identified, noting there was no obligation upon the accused to do so, reasonable hypotheses consistent with the innocence of the accused that had not been excluded on the prosecution case: (i) The accused’s brother committed the offences; (ii) Mr Ben Towney committed the offences; or (iii) Some other unknown person committed the offences.

255. This being a circumstantial case I must determine which facts have been established by the evidence. I then turn to consider whether all those facts, taken together as a whole, provide a reasonable basis to conclude that the accused is guilty. If there is a reasonable basis and guilt is the only reasonable inference or conclusion that can be drawn from the established facts, then the prosecution will have succeeded. If there remains a reasonable hypothesis consistent with innocence, then the accused is entitled to an acquittal.

256. The accused cannot be found guilty unless there is no rational explanation for the circumstances established by the evidence other than the accused being guilty of the offences. If there is any other reasonable inference or conclusion open on the facts inconsistent with the guilt of the accused, then the prosecution case must fail. In R v Hillier [2007] HCA 13; 228 CLR 618 at [46], Gummow, Hayne and Crennan JJ expressed the test as “no other explanation than guilty is reasonably compatible with the circumstances”.

257. In light of the issue in dispute much of the evidence was not the subject of substantial challenge. Based on the evidence that I have accepted, I am satisfied beyond reasonable of the following facts: (i) In the early hours of 1 May 2024, a man stopped a gold-coloured Nissan Micra near HN and FT on George St, Oaks Estate. The man got out of the vehicle holding a firearm. After a brief exchange, the man fired a shot in their direction and fled the scene. (ii) HN and FT fled the scene and ran to Brett Clarke’s house. Mr Garry Clarke drove them to the hospital in Queanbeyan, HN was later transferred to the Canberra Hospital. As a result of the discharge of the firearm, HN suffered injuries which amounted to grievous bodily harm. (iii) The same gold Nissan vehicle with distinctive damage and stickers was observed parked in the visitor’s parking area of a residential unit complex at [redacted] Winchester Place, Karabar around May 2024. It was also observed parked and moving by Mr Whalen at a residential complex near the Queanbeyan River in Isabella St, Queanbeyan; the last occasion was 19 March 2024. The same vehicle was dealt with by police in Jarrah St, Queanbeyan in April 2024 and found at [redacted] Boronia Crescent by police in November 2024. (iv) The accused’s grandmother lived at the Winchester Place complex and the accused was bailed to live there as at 1 May 2024.

258. I am satisfied beyond reasonable doubt that the elements of each offence, set out in Annexure B, have been established by the evidence. I turn now to the identify of the gunman. The identification FT

259. I did not form the view that FT was doing anything other than her best to recall the events of 1 May 2024. After carefully considering her evidence, I have hesitation in relying on her identification of the accused as the gunman.

260. First, on her own evidence FT had directly interacted with the accused on two occasions prior to the shooting. The first occasion was a short interaction with her ex-partner, the second interaction occurred in the month or days prior to the shooting.

261. The first interaction FT agreed was when the accused was in the company of his brother. FT described the accused’ brother as “a twin, I think”. The point of difference between the brothers she noted was that the accused had a moustache and the “other one” is “older as well, but they look very similar”. FT said that she remembered seeing a post from the accused’s brother saying, “happy birthday little bro” and this is why she thought they “probably” were not twins. She said she though she could identify “which one’s which” if they were standing in front her.

262. FT said she later recognised the accused’s voice in the background of a phone call with her ex-partner later in the day of their first meeting. She did not describe anything distinctive about the accused’s voice that might have led her to be able to identify it after their, at that stage, only meeting. She described his voice as “deep and dark”.

263. My own observation of the accused’s voice, having heard it in the recorded phone calls from the prison, was that there was nothing especially distinctive about it. It was readily identifiable as a male voice. There was nothing distinctive in tone, pronunciation or accent. Certainly, no feature of it that would permit me to identify his voice if I were to hear it again without the accused identifying himself.

264. FT did not interact with the accused later that night when she dropped off some cigarettes to her then partner. She later connected with the accused on Facebook and observed his profile picture to be the person she had met with her ex-partner.

265. The next interaction FT said she had with the accused could only be described as unique. It became referred to as “the shower incident”. FT described, in effect, the accused smashing a window and walking in on her while she was in the shower at her friend’s house. The accused was holding a firearm she said. The accused was wearing a face covering that he removed during the incident, and he climbed out of the window to leave the premises, despite the person he was pursuing leaving via the front door.

266. It was my distinct impression of FT’s evidence that as she was pressed in cross-examination about her identification of the accused, she attempted to enhance her capacity to have identified him as the gunman. There were aspects of her evidence about the ‘shower incident’ that she could not have observed that she presented as fact. For example, that the accused went to the next-door neighbour’s house, who in evidence she revealed was Brett Clarke, and stole an item from Mr Clarke’s house that he then used to smash the window of the house where she was in the shower. On her own version she was in the shower when this occurred and she did not see the accused engage in any of this conduct. FT said the accused climbed out of the window to pursue Mr Justin Nanno who had been in the house and hiding from him. FT said the accused did this after Mr Nano left the residence through the front door.

267. FT described this incident in her initial police interview in far less detail. It seemed incredible to me that if the interaction with the accused happened as she said it did, FT would not have mentioned to police when she identified the accused as the gunman, that she had only seen the accused two days earlier during this somewhat bizarre incident. Instead, she described the ‘shower incident’ to police as having occurred a month before the shooting and at least at the time, the incident did not appear to have the significance for her that it later took on in her evidence. When FT initially identified the accused as the gunman to police she did not tell them that she had only seen him two days earlier at the Brett Clarke’s neighbour’s house.

268. Neither Brett Clarke, Mr Justin Nanno nor ‘Sam’ the person who lived in the residence where the shower incident occurred were called to give evidence. I have a doubt about the accuracy of FT’s evidence about this incident because of what appeared to me to be her attempts to enhance its significance.

269. FT initially described to police that the gunman had his face covered “to his nose” and a black hoodie on. In her evidence, FT entirely abandoned the face covering aspect of her description. This was a substantial alteration to her version in response to what FT perceived as a challenge to the accuracy of her identification of the accused. Such a substantial alteration gave me pause about relying on her identification of the accused.

270. FT confidently described observing a ‘Toyota’ band on the vehicle, even nominating the colour and shape of it. This was inaccurate given the known make and model of the vehicle the gunman was driving. FT was also inaccurate when she said that the headlights of the vehicle were off or faintly lit. Whilst perhaps not substantial parts of her evidence, FT’s confidence as to those matters was misplaced.

271. There were aspects of FT’s evidence that were clearly based on hearsay and rumour, the source of which remained unidentified. For example, her description of the accused “getting around for a few weeks like that”, the accused smashing Brett Clarke’s window (conduct she did not observe) and the accused attempting to run HN over, an allegation HN did not repeat in his evidence. It was not always clear to me that FT was describing events from her own memory.

272. FT was not able to identify any distinguishing feature that enabled her to almost immediately identify the accused as the gunman despite her limited interaction with him. FT described that she initially thought the accused and his brother were twins though later learned that they were not. She said she would be able to tell them apart if they were both standing in front of her and that the accused had a moustache. FT did not describe any other distinguishing feature as between the brothers.

273. Of course, in her initial version to police FT said the gunman had “half his face masked up” and did not describe observing a moustache on the gunman.

274. The prosecution pointed to the evidence of Mr Garry Clarke as support for FT independently and spontaneously identifying the accused as the gunman when she arrived at the residence. The prosecution highlighted the lack of opportunity for HN and FT to collude given their separate paths and arrivals at Mr Brett Clarke’s residence.

275. On the state of the evidence, I am not persuaded that FT did independently identify the accused as the gunman. Mr Clarke’s evidence about this was not entirely clear. Mr Clarke’s evidence did not nominate with clarity a sequence of events that had HN first identify the accused when FT was not present at the residence and that upon her arrival, but before she heard HN identify the accused, FT identified the accused as the gunman. Indeed, Mr Clarke’s evidence suggested that FT’s identification of the accused came from HN.

276. Mr Garry Clarke said that FT arrived at the residence “a couple of minutes” after HN. He was asked by the learned prosecutor: Did she say to you at that time who she thought the offender was – the shooter was? Yes. That’s when I learned – that’s when I heard that he said that it was Bronson Cross. Yes. So that came from FT? Yes.

277. Mr Clarke’s answer identified HN as the source of FT’s identification of the accused. That is, what came from ‘FT’ was that HN told her that it was ‘Bronson Cross’. There was support for this sequence of events when FT said at one point in her own evidence that it was HN who told her that it was Bronson Cross.

278. FT said she recognised the accused by his voice and his appearance. It is difficult to accept, having heard the accused’s voice for myself, in circumstances where his mouth was covered and FT on her version had only spoken to him twice prior to this incident, that the accused’s voice was capable of identifying him to FT.

279. In any event, the effect of the evidence is that I have a doubt about whether FT independently identified the accused as she claimed. On her own evidence she had interacted with the accused directly on two occasions, the second of which was an event I have hesitation in accepting occurred at all. If it did occur it was not so significant in FT’s mind when she first identified the accused as the gunman to police.

280. Even if I were satisfied that FT had independently identified the accused there were several factors on the evidence which undermined the reliability of her identification observing the need for special caution. FT had limited interaction with the accused prior to the incident. FT was hiding behind a tree, the gunman had his head and his face covered over his nose, it was dark, the gunman was moving, the period the gunman was visible to FT went for seconds. Whether because I am not satisfied that FT identified the accused for herself or because of the factors I have catalogued or a combination of those matters, I have concluded that I cannot rely on FT’s identification the accused.

281. The most FT’s evidence can stand for in my view is that HN identified that the gunman was the accused, a matter to which I now turn.

HN

282. There was no dispute that HN and the accused were known to each other at the time of the shooting. The prosecution was clear that HN’s identification of the accused as the gunman was based only on his recognition of the accused’s voice and no other identifying feature.

283. Several observations can be made about HN’s evidence.

284. First, it was inaccurate as to the period over which he and the accused attended school together. Initially HN described attending primary school and high school with the accused. The evidence demonstrated that they attended the same school for 3 years in primary school. HN was not in the accused’s class. HN initially described the accused as a “really good friend” and retreated to a degree from that description when pressed. HN accepted that there was a period where he and the accused did not interact.

285. HN rejected a proposition that he had not seen the accused since he was 11 years old. HN described three interactions with the accused in more recent times since they attended primary school together. A physical altercation at Trevor Miller’s house, a “hi-bye” interaction at Woolworths and a handshake at his brother’s residence.

286. The incident at Mr Miller’s house resulted in a physical fight that HN said resulted in him getting “the better” of the accused. There was some support for an incident involving at least HN from Constable French who indicated that she had attended an incident involving him some years earlier.

287. The interaction at Woolworths was short and HN provide limited detail as to the extent of any interaction between them.

288. The handshake exchange with the accused occurred within the year prior to the shooting. HN gave the accused his accurate address. This seemed to me to support a view that he considered the handshake to be indicative of there no longer being any anger or “beef” between them. HN’s brother was not called to give evidence about the meeting between the accused and HN at his home.

289. Secondly, HN was acquainted with the accused’s brother. They were in the same year at school together. HN said he did not know what the accused’s brother looked like “now”. HN said he was better friends with the accused. HN described almost immediately identifying the gunman as the accused by his voice.

290. I accept that the accused and HN were known to each other at the time of the shooting. I accept that HN identified the accused as the shooter at Brett Clarke’s residence.

291. HN did not identify the accused as the person who had driven at him sometime before the shooting. HN appeared reluctant to concede, though ultimately did, that there may have been others in the community who wished to harm him. I am satisfied that HN did seek to enhance his connection with the accused to bolster his capacity to identify him as the shooter. HN initially suggested that the Miller house incident with the accused occurred four to five years before the shooting. Clearly, he did not attend school with the accused for the entire period of primary school and not at all for high school.

292. As a result of the attempts to bolster his identification of the accused I have some hesitation about whether HN was accurate in his descriptions of other interactions with the accused after primary school. That said, I do accept that there were at least occasions where the accused and HN had interacted in more recent times prior to the shooting.

293. I also accept that the question from the shooter demonstrated some familiarity with HN, “Is that you, HN?” reflective of some pre-existing familiarity with each other consistent with what HN’s described. It was not a query inconsistent with the accused’s connection with the accused’s brother, whose appearance HN was unfamiliar with “now”.

294. Thirdly, HN was not asked whether he knows Mr Ben Towney.

295. Fourthly, the prosecution highlighted the ill-feeling between the accused and HN as explanation for the shooting. The source of any ill will either between them or on the accused’s part was unclear. On HN’s version they were “friends” until the incident at Mr Miller’s house. My observation was that HN appeared reluctant to provide substantial detail as to the source of any conflict between himself and the accused. It may be that HN cannot identify why the accused might have “beef” with him, but it did seem to me that he was not entirely forthcoming as to the detail of any history that he considered existed between them as at the time of the shooting. I observe that the accused, in discussing HN on the recorded phone calls, did not describe a history of ill feeling or identify a source of any antagonism between them.

296. Fifthly, HN was wrong about the whereabouts of his sister at the time of the shooting and about whether he had been at Mr Clarke’s residence prior to the shooting. I do not consider those matters to be significant factors with respect to his credibility or his reliability.

297. HN identified the accused’s voice as the only feature of the gunman that he immediately recognised as the accused. HN did not describe any particular feature of the accused’s voice which led him to that immediate conclusion. HN was not asked about whether any of his interactions with the accused’s brother since they had been to school together included talking with him.

298. I am satisfied that HN identified the shooter as the accused by reference only to his voice. When he did so I accept that he believed that the person who shot at him was the accused. It is the accuracy of that identification which I must assess, and I turn to the other evidence in the prosecution which could assist with that assessment.

The gold Nissan

299. On the evidence I am satisfied that the gold Nissan found at [redacted] Boronia Crescent was the gold Nissan driven by the gunman and the gold Nissan that Constable Gannon removed the registration plates from on Jarrah St in April 2024.

300. I am also satisfied that the vehicle used in the shooting was the same gold Nissan parked at Winchester place and that Mr Whalen observed at his unit complex.

301. Mr Whalen said he saw more than one person driving the vehicle. On 19 March 2024 he saw the driver of the vehicle, a man with “darker” skin, greeted by a female resident of their complex. The complex he described as located on the river.

302. The vehicle was given by Mr Devine to Mr Towney. Mr Towney did not ever report the vehicle stolen. Mr Devine described Mr Towney as “fair” skinned. He said that Mr Towney’s girlfriend Ebony Scott lived near the Queanbeyan River. Ms Scott was not called to give evidence, nor was Mr Towney.

303. There was no evidence connecting the accused to Jarrah St or Boronia Crescent in Queanbeyan at the time of, or in the lead up to, the shooting. There was no evidence as to who lived at or had access to the Boronia Crescent address where the vehicle was eventually located in the backyard, spray painted and hidden from view.

304. There was no forensic evidence linking the accused to the gold Nissan used in the shooting and no item of any significance for the purposes of assessing the identity of the shooter or connecting the accused to the shooting, located during any of the search warrants conducted by police.

305. The vehicle was unlocked when Senior Constable Gannon removed the registration plates when he found it parked on Jarrah St. The vehicle was observed by Mr Whalen to have been driven by more than one person on the occasions that he noticed it.

306. There is no evidence of any connection between the accused and Ms Ebony Scott, the woman Mr Devine identified as Mr Towney’s partner who lived near the Queanbeyan River.

307. The effect of the evidence is that the only ‘link’ between the accused and the gold Nissan is that it was observed by Ms Chong and Mr Huddleston to have been parked in the visitors parking area of their complex where the accused’s grandmother also lives and where the accused was bailed to live as at 1 May 2024.

308. Denise Chong said she thought the gold Nissan was parked at the Winchester complex in May 2024. Mr Huddleston could not recall when he saw the car parked at the complex before he spoke to police in August 2024.

309. The accused was arrested on 1 May 2024. There was no CCTV footage from Winchester Place of any interest in relation to the shooting identified between 30 April and 1 May 2024.

310. Ms Chong’s evidence about the vehicle being parked at the complex in May provided a small window for the accused to have parked it there in May, him being in custody by the afternoon of 1 May 2024. Police conducted a search warrant at his grandmother’s house on 3 May 2024. The gold Nissan, by then identified as a vehicle of interest in the shooting, was not found at the Winchester Place address on 3 May 2024.

311. There was no evidence about access to the Winchester Place complex requiring a security pass. The photographs tendered appeared to show that the parking area of the complex could be accessed freely. That is, the driveway could be accessed by a vehicle and/or by a person walking without the need for a pin or a pass and there did not appear to be any gate or other obstruction to entry.

312. Constable French knocked on the Winchester Place address of the accused’s grandmother on 30 April 2024 at 9:53pm. There was no response from anyone inside. Constable French was not asked whether there were any lights on inside the residence or whether any noises could be heard emanating from the residence. Constable French did not state that she actioned a breach of bail arising from the absence of a response to her knock. There was no evidence as to the detail of the accused’s bail conditions at the time, as to whether for instance he was subject to a curfew or whether there was any exception which permitted him not be at the premises at 9:53pm for example if he was in the company of another person such as his grandmother. Constable French was not asked whether she saw a gold Nissan parked on the premises.

The reasonable hypotheses consistent with innocence

313. The prosecution highlighted two matters contained in the evidence which excluded the accused’s brother and Mr Towney as the gunman: (i) The description by Mr Devine of Mr Towney being “fair” skinned. (ii) The description of the accused’s brother which distinguished him from the accused.

314. The person Mr Whalen observed driving the vehicle on 19 March 2024 was “darker skinned”. Mr Whalen offered that feature as the only observation he was able to make of the male driver. That person was greeted by a woman who lived at the complex. On the evidence, I am satisfied that the only reasonable inference to be drawn is that the person driving the vehicle on that day was Mr Towney and the woman was his partner, Ebony Scott.

315. This is at odds with Mr Devine’s description of Mr Towney as “fair” skinned. Mr Devine and Mr Towney are known to each other. There is no photograph in evidence of Mr Towney. Mr Devine was not asked to elaborate on his basic description of Mr Towney being “fair skinned, 184 centimetres and dark hair” with no facial hair “at the time” which in context I took to be ‘the time’ Mr Devine gave him the vehicle.

316. As I have already recorded Mr Towney was not called. There was no evidence as to his whereabouts or his residence at the time of the shooting.

317. The evidence established that this accused is not a twin. This fact does not undermine the significance of the evidence as to the physical similarly between them.

318. Such was their physical similarity that FT, at least initially, thought that the accused’s brother was his twin. The only physical feature which she identified as one which distinguished them was the accused’s moustache. FT said she could distinguish between them if they were standing in front of them. Of course, they were not both standing in front FT when the shooting occurred. FT did not directly state, even when she disavowed a face covering on the gunman, that the gunman had a moustache. In any event I am satisfied that the gunman was wearing a covering on his face which severely limited the opportunity to see any facial hair and accordingly for FT to have observed the one physical feature she identified as the difference between the accused and his brother.

319. HN did not give a description of the accused’s brother and said he did not know what the accused’s brother looked like “now”. He had seen the accused’s brother “once or twice” since they attended school together. He was not asked to nominate the last occasion he had heard the accused’s brother speak. The accused’s brother did not give evidence.

320. The informant described the accused’s brother as “Aboriginal” which he clarified to mean “of darker skin” and “slightly” stockier than the accused. He estimated the accused’s brother to be 5’5” in height. HN initially said that he was not sure of his own height and then stated that he was “definitely 6 foot”. He compared the accused’s height to his saying the accused was a “bit” taller (I note this estimate is consistent with the height estimate Mr Devine gave for Mr Towney, namely that he was 184 centimetres tall). The prosecution submitted that the height estimates ruled out the accused’s brother as the gunman.

321. The effect of the evidence was to establish that the accused and his brother bear physical similarity to each other to the extent that FT thought they were twins and the informant offered only two physical features which distinguished them namely, that the accused’s brother had a “slightly” stockier build and that there was approximately a 17-centimetre (the difference between 5’5” and 6’ foot) height difference. HN’s evidence was not able to offer any feature of the gunman which distinguished the accused from his brother because he could not describe Jermaine Cross’ appearance.

322. There was no evidence before me as to the appearance of the accused’s brother at the time of the shooting or proximate to it or at the time a search warrant was conducted and he was present at his grandmother’s address.

323. HN gave evidence that he knew the accused to have one brother. On a call recorded from the prison between 2 May 2024 and 19 July 2024 the accused can be heard talking to a person identified as the accused’s brother. The context of their conversation where the other male voice talking to the accused refers to “Dad” and “Nan” provides support for that conclusion. In listening to those calls which provide clear audio of the voice of the accused and of his brother, it is not possible to identify any discernible feature of either voice. It is not possible to identify a feature of the accused’s voice which might distinguish it from his brother. Neither voice had a particularly high-pitched or low timbre, neither had a distinctive tone or used distinctive phraseology or pronunciation. Neither voice could be described as husky or raspy, excited or halting or to have a distinctive rhythm or sound compared to the other.

324. The CCTV footage does not permit a definitive conclusion as to the height of the gunman. The gunman does not appear especially short or tall. It does not permit a conclusion wither respect to the height of HN compared to the gunman.

325. Like Mr Towney, there was no evidence as to the whereabouts of the accused’s brother at the time of the shooting such that he could be definitively ruled out on the basis that it would have been impossible for him to have committed the offences. For example, if he were in another jurisdiction or detained in such a way that he could not have been in George St, Oaks Estate in the early hours of 1 May 2024.

326. The presence of the gold-coloured Nissan at the Winchester Place address was linked to the accused’s brother for the same reason that it was linked to the accused. The evidence established that the accused’s brother lived with their grandmother. There was no other physical evidence, leaving aside HN’s identification, which made it more likely that it was the accused driving the gold-coloured Nissan on 1 May 2024 and not his brother.

327. The gold-coloured Nissan and the evidence surrounding it was neutral with respect to the identity of the gunman and the reasonable hypotheses consistent with innocence.

328. The interaction between the gunman and HN does not rule out the accused’s brother. Nor it must be said, Mr Towney; there being no evidence before me as to whether HN and Mr Towney were known to each other at the time of the shooting. Further any ill feeling that might have been between the accused and HN does not rule out the accused’s brother as the gunman. Conclusion

329. I have found that FT’s identification of the accused as the gunman rests on HN’s identification of him as the gunman. HN’s positive identification rests solely on his capacity to identify the accused’s voice. His capacity to do that accurately cannot be assessed absent a consideration of the physical similarity between the accused and his brother or without considering the circumstances in which the positive identification was made.

330. The interaction between HN and the gunman was recorded on the CCTV footage to extend over a period of 28 seconds. It was a brief interaction. It was dark with some lighting available. The prosecution conceded that the nature of the CCTV footage is such that I could not perform my own independent assessment of the appearance or sound of the gunman and the appearance and sound of the accused and conclude they are the same person.

331. Consistent with what can be observed in the CCTV footage and with HN’s evidence, the gunman had his face covered over his nose and his head covered. The gunman’s mouth was entirely concealed by what appeared to be dark fabric which could have provided some muffling effect. HN had a firearm pointed in his direction, clearly perceived that he was at risk of harm from the gunman and was ultimately injured because of a shot fired in his direction.

332. The interaction was brief not just in time but also in content. The gunman could be observed moving back and forth in HN’s direction and where the gold-coloured Nissan was stationary. Neither the CCTV footage nor HN’s evidence suggested that there was a substantial conversation between them in the 28 seconds they interacted. The effect of which is a short period within which HN identified the accused only from his voice.

333. The effect of the prosecution evidence was the establishment of a link between the accused and the gold-coloured Nissan. That link as I have already recorded does not exclude the accused’s brother. There is no other physical piece of evidence which ties, links or connects the accused to the shooting. This brings me to the admission.

334. I am not satisfied that the ‘admission’ in the circumstances in which it was recorded, was only capable of being viewed as acceptance by the accused that he was, in fact, the gunman. It is equally and reasonably plausible in the context of the conversation, that the accused was communicating to his mother that HN did not see his face because it was not him or that the evidence as he had been led to understand by his lawyer, did not reveal that HN saw his face. In circumstances where I am not satisfied that the ‘admission’ was only capable of being an acceptance by the accused of his identify as the gunman, it is not a matter upon which I can rely to support the direct identification of the accused by HN.

335. After carefully considering the combined effect of the evidence, I am not satisfied that the hypotheses consistent with the accused’s innocent have been excluded beyond reasonable doubt.

336. Whilst I consider it less likely that Mr Towney committed the offences, I am not persuaded that it has been excluded beyond reasonable doubt as a reasonable hypothesis consistent with innocence. Mr Devine gave Mr Towney the gold-coloured Nissan. Mr Towney was in possession of the vehicle on 19 March 2024. Mr Towney did not report the vehicle stolen to Mr Devine or to the police. There was no evidence about whether Mr Towney and HN were known to each other. There was no evidence as to whether the accused and Mr Towney were known to each other. There was no evidence as to Mr Towney’s whereabouts on 1 May 2024.

337. Even if I am wrong about whether the evidence has excluded beyond reasonable doubt Mr Towney as the gunman, the evidence does not exclude the accused’s brother as the gunman beyond reasonable doubt.

338. This view does not rest on the possibility that the accused and his brother are twins. That possibility has been excluded beyond reasonable doubt. The evidence nonetheless demonstrated physical similarity between the accused and his brother material to the capacity for them to be distinguished from each other. This is consistent with FT’s evidence that she thought them twins until she saw a post from the accused’s brother wishing him happy birthday and the informant’s evidence where he identified two physical features that distinguished them.

339. HN, whilst definitive about the identity of the gunman, did not have any contemporaneous experience of the accused’s brother which included his voice. I have kept in mind the need for special care with respect to voice identification evidence. I have already noted some of the features which attended to the opportunity for HN to identify the gunman as the accused based only on hearing his voice. In the circumstances of this case I am not satisfied that I can rely on HN’s identification of the accused as the gunman.

340. The link to the gold-coloured Nissan applying equally to the accused and his brother, requires substantial reliance on HN’s direct identification of the accused in order that it be concluded that it was the accused who was the gunman. The nature of the interaction does not rule out the accused’s brother as the gunman. Indeed, the gunman’s question to HN “is that you HN?” is consistent with a person seeking to confirm his identity. On HN’s version of his interactions with the accused their familiarity with each other limited any need for the accused to confirm that it was him. A history or a “beef” between the accused and HN, does not exclude the accused’s brother as the gunman.

341. After carefully considering the combined effect of the evidence I am left with a doubt as to the accused’s guilt. I am not satisfied that hypotheses consistent with the accused’s innocence have been excluded beyond reasonable doubt.

342. Accordingly, he is entitled to the benefit of the doubt I have and accordingly, verdicts of not guilty should be entered.

Verdicts

343. For those reasons, I return the following verdicts: (1) The accused is not guilty of Count 1. (2) The accused is not guilty of Count 2. (3) The accused is not guilty of Count 3.

I certify that the preceding three hundred and fourty-three [343] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Taylor. Associate: P Beohm Date: 11 July 2025 ANNEXURE A – DIRECTIONS

Onus and standard of proof

344. The prosecution bears the onus to prove the guilt of the accused. The accused is presumed innocent unless and until the evidence which I accept satisfies me beyond reasonable doubt of the accused’s guilt. If the evidence which I accept fails to satisfy me beyond reasonable doubt of the accused’s guilt, then I must find him not guilty.

Fact finding and inferences

345. The facts I find must be based on the evidence. I must bring an open and unbiased mind to that evidence. I must view the evidence clinically and dispassionately and I must not let emotion enter into the decision-making process. The prosecution and the accused are entitled to my verdict free of partiality, prejudice, favour or ill will.

346. I may draw inferences from the facts that I find have been established by the evidence. 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 the circumstances.

The accused did not give evidence

347. The accused did not give evidence in the proceedings. There is no obligation on him to give or call evidence in a criminal trial. I must draw no adverse inference from his decision not to give evidence. The accused is entitled to say nothing and make the prosecution prove his guilt according to the onus they bear, to the standard required. I cannot take into account the accused’s decision not to give evidence in any way. I cannot use the absence of any evidence from him to fill any gaps in the prosecution case nor can I use it as strengthening the prosecution case. I must not speculate about what might have been said in evidence if the accused had given evidence. Circumstantial evidence

348. The prosecution case against the accused is circumstantial. There is no direct evidence of the accused committing either of the offences before the Court. Instead, the prosecution asks me to draw the inference that the accused was the offender from all the circumstances which have been proved.

349. The prosecution will have failed to prove its case beyond reasonable doubt unless the conclusion that the accused committed the offences is the only rational inference that can be drawn from the whole of the circumstances established to my satisfaction by the evidence I accept. Put another way, I cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other conclusion is reasonably compatible with the circumstances established by the evidence.

350. In a circumstantial case, all of the circumstances established by the evidence must be considered and weighed together, not individually or in a piecemeal fashion. The probative force of a body of evidence may be cumulative.

351. As Baker J observed in Director of Public Prosecutions v Cristy Lee Holder [2022] ACTSC 336; 103 MVR 30 at [65], for practical purposes a circumstantial case is sometimes described as a "link in the chain" case or as a "strand in the cable" case. \This case is properly characterised as a “strand in the cable” case, as it is only the elements of the offence itself which need to be proved beyond reasonable doubt. This is because of the capacity of a body of evidence to have a cumulative effect. It is not necessary for the various factual "strands" to be proved beyond reasonable doubt before they can contribute to the cumulative effect of a body of evidence. While each individual strand may be of insufficient strength to support the weight of the prosecution case, when bound together the whole may be of greater probative force than the sum of its parts.

352. I remind myself that this case, reliant as it is upon indirect, circumstantial evidence, does not result in a case weaker than one that relies upon direct evidence or eyewitness accounts. The question remains in either case; has the prosecution proved its case beyond reasonable doubt? Before I can determine that the prosecution has proved the elements of the offence to the requisite standard, I must be satisfied that the inference that the accused is the person who committed the offences has been proved beyond reasonable doubt. If I am not satisfied of this inference beyond reasonable doubt, I must acquit.

Expert Evidence

353. 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.

354. In the present case, expert evidence was admitted in the area of fingerprints and DNA. This topic is within the witness’s expertise but is likely to be outside the experience and knowledge of the average lay person.

355. 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.

356. I bear in mind that if, having given the matter careful consideration, I do not accept the evidence of the expert, 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 to which the expert evidence relates.

AVL Evidence

357. The complainant and Mr Devine gave evidence from a location remote from the courtroom connected to the proceedings by audio-visual link. This is usual practice. I must not draw any inference adverse to the accused and I must not attach any greater or lesser weight to their evidence because this practice was followed: s 68 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT).

Voice Identification Direction

358. Voice identification evidence may be unreliable and has been shown to be so in the past.

359. Evidence that the accused’s voice has been identified by a witness must be approached with special caution before it can be accepted as reliable. These directions relate only to the reliability of the identification evidence given, not to the honesty of the witnesses. A witness may give evidence of identification honestly and sincerely believe that their evidence is correct. The evidence can be quite impressive and even persuasive. Even if I thought HN or FT was entirely honest in the evidence that they gave, I must still approach the task of assessing the reliability of their evidence with special caution. The identification of a voice is notoriously liable to be mistaken.

360. Special caution is necessary before accepting voice identification evidence because of the possibility that a witness may be mistaken in their identification of a person accused of committing a crime. The experience of the criminal courts over the years, both in Australia and overseas, has demonstrated that identification evidence, of whatever kind, may turn out to be mistaken. There have been some notorious cases in which witnesses have given evidence of identification which has later been demonstrated to be wrong after innocent people have been convicted.

361. I must carefully consider the circumstances in which HN and FT heard the voice of the person the Crown alleges committed the crime and how they came to identify that voice as the accused. The circumstances in which the witness heard the voice and identified it can affect the reliability of that evidence.

362. There are a number of matters that have been specifically raised in this case that require my consideration in determining whether the evidence identifying the accused can be safely acted upon: (a) Was the person identified a stranger to HN and FT? It is obviously harder to identify the voice of a stranger than it is to identify the voice of a person who is well known to the listener. If the person was a stranger, how did they come to be familiar with the voice identified? I warn myself that mistakes can easily be made even in identifying the voice of a friend or member of the family. Identifying the voice of a stranger is even more difficult. (b) What opportunity did HN and FT have to hear the voice of the person? (c) How attentive was the person in hearing the voice. Were HN and FT able to give it full and undivided attention or were they distracted at the time? (d) How clearly could the person hear the voice and how was the sound conveyed to the witness. Was there any chance that the voice was distorted in some way? (e) Was there anything about the voice which would have impressed itself upon the witness? In other words, was there anything distinctive about the voice which was similar or different to that of the accused? It may be difficult to describe a voice unless it has some peculiar characteristic and without the witness being able to provide some description, that makes my task of assessing the reliability of the evidence more difficult. (f) Was there any special reason for remembering the voice that was heard? (g) Does HN or FT come from the same racial background as the person identified? That is also something you can bear in mind. It may be more difficult for a member of one race to identify the voice of an individual of another racial group. (h) How long did the witness have to keep the characteristics of the voice in his/her mind before identifying that voice as that of the accused?

363. I am entitled to compare the voice of the accused as I have heard it, with the voice on the recording in order to see whether that affects my assessment of the evidence of the witness. But I bear in mind the difference that there may be between comparing a voice heard in court with that recorded. I should consider the opportunity I have to compare the two voices with that of the witness. I should take into account the clarity of the recordings that I have heard and how the recording may affect the ability to compare the voices.

364. I must consider each of those matters. Any one of those circumstances may possibly lead to error.

Visual Identification Evidence Direction

365. There is an important direction concerning the evidence of FT in which she identified the accused as the person who shot HN. identification evidence may be unreliable and there are a variety of reasons why that is so.

Reasons for the need for caution generally

366. Evidence that the accused has been identified by a witness must be approached by with special caution before I accept it as reliable. These directions relate only to the reliability of the identification evidence given, not to the honesty of the witness. 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 thought FT 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.

367. 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.

368. I must carefully consider the circumstances in which FT made her observation of the shooter. The circumstances in which she made her observation of the person can affect the reliability of the identification evidence.

369. There are several matters that have been specifically raised in this case that require my consideration: (a) Was the person identified a stranger to FT? It is obviously harder to identify strangers than it is to identify people who are well known to us. (b) What opportunity did FT have to make their observation of the person? (c) Did the witness focus their attention on the person or was it just a casual sighting that did not have any significance for the witness at the time? (d) In what light was it made? (e) Was there anything about the person observed which would have impressed itself upon the witness? In other words, was there anything distinctive about the person? (f) Was there any special reason for remembering the person observed? Was the witness under any stress or pressure at the time? If FT was under any stress or pressure at the time, how do I think that might have affected her ability to accurately observe the person and store the image of the person’s appearance in their memory? (g) Does FT come from the same racial background as the person identified? That is also something you can bear in mind. It may be more difficult for a member of one race to identify an individual of another racial group. (h) When was FT first asked for a description of the person and how fresh would their memory have been at that time? (i) How did the description given by FT compare with the appearance of the accused? (j) How long was it between the sighting of the person and the giving of the description to the time that FT identified the accused?

370. I must consider each of those matters. Any one of those circumstances may possibly lead to error.

371. In this case the evidence of FT is that she recognised someone that she knew. It is perhaps easier to understand the possibility of error when the evidence is given by someone who has not previously known the accused, but errors may also occur even when the witness has previously known the accused. Mistakes have been known to be made by friends and even by relatives of a person who thought that it was their friend or relative whom they had seen. This is something I should bear in mind. Just because a witness claims to have known the person, there remains a possibility of mistake.

372. In this case more than one witness has identified the accused. This is a matter that I may take into account in determining how strong the evidence is. However, this does not mean that there is necessarily less chance that a mistake has been made. Two or more honest witnesses can be just as mistaken as one.

ANNEXURE B – ELEMENTS OF EACH OFFENCE

Count 1 (CC2024/172): recklessly inflict grievous bodily harm contrary to s 20 of the Crimes Act

373. The elements of the offence of recklessly inflict grievous bodily harm are: (a) The accused engaged in the conduct (b) The accused intentionally engaged in the conduct (c) The conduct resulted in grievous bodily harm being inflicted on another person (d) The accused was reckless as to the infliction of grievous bodily harm

Count 2 (CC2024/5222): act endangering life contrary to s 27(3)(d) of the Crimes Act

374. The elements of the offence of act endangering life, namely, discharging loaded arms are: (a) The accused discharged loaded arms (b) The accused intended to discharge loaded arms (c) The discharging of loaded arms was unlawful (d) The accused’s conduct caused another person reasonable apprehension for his or her safety

Count 3 (CC2024/4970): unauthorised use of firearm contrary to s 43(1)(a)(iii) of the Firearms Act 1996 (ACT)

375. The elements of the offence of unauthorised use of a firearm are: (a) The accused uses something (b) The accused intends to use something (c) The thing used is a firearm (d) The accused is reckless as to whether the thing used is a firearm (e) The accused is not authorised by license, permit or otherwise under Firearms Act 1996, to possess the firearm (f) The accused is reckless as to whether s/he is not authorised by license, permit or otherwise under Firearms Act 1996, to possess the firearm