Hyde v DPP; Sibley v DPP [2026] ACTCA 9

In any event, the trial judge suggested that it may be fairer to the witness to read to him the portions to which the prosecutor wished to draw his attention. At that point, the judge was evidently proceeding on the assumption that the statement of agreed facts had been adopted by Mr Sims and that the only task was to draw his attention to what it said. On that assumption, as his Honour later explained in the absence of the jury, his reason for suggesting that the statement be read to Mr Sims was that he was not confident Mr Sims would be able to fairly identify the relevant passages himself.

The prosecutor proceeded to read passages of the statement aloud to the witness in the presence of the jury. After several paragraphs had been read in that way, senior counsel for Ms Hyde objected and the jury was sent out.

The exchanges that took place in the absence of the jury established two important matters. First, defence counsel informed the Court that, according to a proof of evidence provided by the prosecution, Mr Sims had claimed that the statement of agreed facts had not been read to him before he pleaded guilty and that he did not agree with the facts set out in that document. In other words, it was not common ground that he had adopted the statement. Secondly, the prosecutor made a concession that an admission by Mr Sims was not admissible against the two accused. She indicated that she was not relying on the statement of agreed facts for that purpose but only as going to the credit of the witness (implicitly, because it was a prior inconsistent statement).

For the second point, the prosecutor relied on the decision of the Court of Appeal of Victoria in Power v The Queen [2014] VSCA 146; 43 VR 261 at [18]-[19] where the Court noted that a co-offender’s “bare plea of guilty” is not admissible against an alleged co-offender but may be relevant to the co-offender’s credit and be admissible for that reason (as a point of distinction, it may be noted that, in Power, the witness had agreed in cross-examination that the facts read to the Court when he pleaded guilty were consistent with what he had told police: at [8]).

In the present case, after hearing from the parties, the trial judge accepted (with respect, correctly) that the existence of the plea of guilty was relevant to Mr Sims’ credibility. His Honour accepted a submission by defence counsel that it was potentially unfairly prejudicial to the accused for the jury to hear the content of the statement of agreed facts without first hearing about the plea and the facts on which it was based. However, his Honour considered that prejudice could be overcome by further questioning of the witness. He invited the prosecutor to address the issue in that way.

The jury was brought back in, and the prosecutor proceeded to cross-examine Mr Sims about his pleas of guilty and the basis on which they had been entered. Mr Sims accepted that he had pleaded guilty and that he was legally represented at the time. However, he said he “didn’t really went over anything” with the lawyer. He added (referring to the statement of agreed facts), “I don’t agree to what’s in here”. At the conclusion of that exchange, the prosecutor tendered the statement of agreed facts. Both defence counsel objected to the tender on the basis that the probative value of the document (which was to prove the entry of the pleas and the basis on which they were entered as prior inconsistent statements going to Mr Sims’ credit) was outweighed by the danger of unfair prejudice to the accused, invoking s 137 of the Evidence Act. Separately, counsel for Ms Sibley submitted that the plea of guilty was an admission by Mr Sims only of what he did, not an admission as to what others did. Although not articulated as such, that was an objection as to relevance; the point was that there was no prior inconsistent statement.

Apart from objecting to the admissibility of the statement, both counsel submitted, in effect, that the proper course was for the prosecutor to put each alleged inconsistent statement before the witness rather than tendering the whole document. The trial judge did not consider that necessary and admitted the whole document, reserving his reasons until the following day.

The reasons given orally the next day broadly reflected the exchanges summarised above. The trial judge noted that it was “uncontroversial that the document had been tendered as the basis upon which [Mr Sims] entered his plea of guilty” (in fact the court record shows that it was noted as having been filed in court rather than tendered, but the difference is immaterial). The judge noted that the facts stated in that document were very different from the description of events given by Mr Sims in his evidence in the trial, in particular, his evidence that he acted alone and did not know who else was involved. The judge noted the limited purpose for which the document was tendered, namely, going to Mr Sims’ credibility as a witness. He recorded that the substantial objection was that the probative value was outweighed by the risk of unfair prejudice. He stated that he was not satisfied in those terms, principally because the jury had heard “substantial direct evidence” as to what occurred at the premises in question (meaning that the risk of unfair prejudice from the repetition of a subset of that material in a document was minimal). He considered that a very clear direction to the jury about the limited use of the evidence would be sufficient to address the risk of unfair prejudice. There is no complaint that his Honour did not adequately direct the jury in accordance with that indication.

The ground of appeal contends that the trial judge erred in admitting the statement of agreed facts. The written submissions for Ms Hyde did not address this ground. In the written submissions for Ms Sibley, the argument was anchored in s 137 of the Evidence Act, which was the principal basis on which she had objected to the admission of the statement into evidence. Section 137 provides: Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence presented by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

The standard of review of a decision refusing to exclude evidence under that section is the “correctness standard”, under which “the appellate court determines for itself the correct outcome while making due allowance for such ‘advantages’ as may have been enjoyed by the judge who conducted the trial or hearing”: Steven Moore (a pseudonym) v The King [2024] HCA 30; 98 ALJR 1119 at [3] and [14].

The section implicitly assumes that evidence in respect of which the objection is taken will have at least some probative value. The question to be determined is whether that value is outweighed by the danger of unfair prejudice. As already explained, the prosecution acknowledged that the probative value of the statement of agreed facts by reference to which Mr Sims pleaded guilty was confined to the issue of his credibility. The admissibility of the statement for that limited purpose was governed by s 43 of the Evidence Act, which relevantly provides: (1) A witness may be cross-examined about a prior inconsistent statement alleged to have been made by the witness whether or not— (a) complete particulars of the statement have been given to the witness; or (b) a document containing a record of the statement has been shown to the witness. (2) If, in cross-examination, a witness does not admit that the witness has made a prior inconsistent statement, the cross-examiner must not present evidence of the statement otherwise than from the witness unless, in the cross-examination, the cross-examiner— (a) told the witness enough of the circumstances of the making of the statement to enable the witness to identify the statement; and (b) drew the witness’s attention to the part of the statement that is inconsistent with the witness’s evidence.

The term “prior inconsistent statement” of a witness is defined in the Dictionary to the Evidence Act to mean “a previous representation that is inconsistent with evidence given by the witness”. A precondition to the admissibility of the evidence was accordingly whether, by pleading guilty to the two counts on the joint indictment by reference to the statement of agreed facts filed in court at the same time, Mr Sims had made a previous representation that he did not act alone but in fact acted jointly with Ms Hyde and Ms Sibley.

As already noted, Mr Sims did not sign the statement of agreed facts before it was filed in court. Counsel for Ms Sibley submitted that, in that circumstance, he cannot be taken to have adopted it. However, as noted uncontroversially by the Director of Public Prosecutions, a representation can also be made by conduct. By pleading guilty to the two counts on a joint indictment, Mr Sims admitted that he had committed the offences, but he also represented that he had committed them jointly with the two other accused named in the indictment, Ms Hyde and Ms Sibley: cf Abbas v The Queen [2022] VSCA 39; 297 A Crim R 1 at [87].

The more difficult question is whether Mr Sims is to be taken to have made any representation concerning the contents of the statement of agreed facts as a whole. In his evidence, he denied having been shown that document and, as already noted, it was unsigned.

In our assessment, this issue is to be resolved by reference to the fact that the statement was put forward by the prosecution as the basis on which the pleas were entered. Mr Sims was present when that occurred and, as already noted, he was legally represented that day. Absent evidence to the contrary, an accused person is ordinarily bound by the way in which their case is conducted by counsel. It was open to Mr Sims to plead guilty but to indicate that there would be a dispute as to the facts. By pleading guilty by reference to the statement of agreed facts filed by the prosecution, and in the absence of any identified dispute as to those facts at the time they were filed in court, the entry of the pleas constituted a representation that the facts of the case were as set out in that document. It is not to the point that Mr Sims could only be taken to admit conduct attributed to him. The point is that, by his conduct, he made a representation that the facts of the case were as set out in that document. The document became admissible (subject to the terms of s 43 of the Evidence Act) when he gave evidence in the trial inconsistent with that representation. As to Mr Sims’ evidence in the trial that he did not review the statement of facts before it was filed in court, the trial judge expressed the view that the assessment of that issue was a matter for the jury. We respectfully agree.

It was submitted on behalf of the appellants that the probative value of any such representation is far outweighed by the unfair prejudice occasioned by its admission. The principal basis for that submission was the contention that the statement of agreed facts went “much further than to outline the conduct of Mr Sims; it was a recitation of the evidence as the prosecution interpreted it as relates to Mr Sims, Ms Hyde and Ms Sibley”. However, that submission was mistakenly prepared by reference to an earlier iteration of the statement of agreed facts. The version in evidence before the jury was, as the trial judge evidently assessed it to be, mostly an anodyne summary of evidence otherwise before them in the text messages and Mr Ogilvy’s evidence-in-chief.

The Director of Public Prosecutions submitted that the appellants in fact received an advantage in the treatment of this issue because the prosecutor at trial conceded that the use of the evidence was limited to the jury’s assessment of Mr Sims’ credibility whereas, in accordance with the decision in Abbas and the cases cited in that decision, it could have been admitted as evidence of the truth of the representations made in the statement of agreed facts. It is not necessary for the purpose of the present appeal to consider the difficult questions raised by that line of authority. It is enough to conclude that the trial judge’s assessment that the probative value was not outweighed by the danger of unfair prejudice to the accused in the present case was correct. For the reasons already explained, the danger of unfair prejudice was minimal. The probative value, on the other hand, was significant. Absent the evidence, the jury would have been left with a wholly inadequate basis for assessing Mr Sims’ credit. To permit his evidence to stand unscathed in circumstance where he had, only a week earlier, pleaded guilty by reference to a document that told a completely different version of events would have been an affront to the administration of justice.

Accordingly, we reject ground (b)(i).

Ms Hyde, Ms Sibley and Mr Ogilvy communicated via an app called Signal. Ms Hyde and Ms Sibley’s messages were evidently set to disappear after five minutes. However, Mr Ogilvy’s were not. A complete download of messages and calls recorded on his phone from early on 8 June 2022 up to the time of the incident was tendered in the trial by senior counsel for Ms Sibley.

As submitted by the Director of Public Prosecutions, those last messages demonstrate that Mr Ogilvy was clearly concerned about meeting Ms Hyde. The exchange continued: 11:14pm Sibley to Ogilvy: Where are you atm? I’ll meet you there if you want?” 11:15pm Hyde to Ogilvy: What you have done for me I hear is just fucking around. And you keep reminding me that I didn’t have to give you anything but now you are throwing it all in my face. I have constantly helped you out with the belief you are definitely having it sorted the next day. As that is what you keep promising. You know my situation as I have expressed it over and over again. 11:23pm Sibley to Ogilvy: [Ogilvy misses call from Sibley] 11:35pm Sibley to Ogilvy: [Ogilvy misses call from Sibley] 11:36pm Sibley to Ogilvy: IM headed that way, do you want to meet 11:38pm Ogilvy to Sibley: I’m at mount Ainslie

As submitted by the Director of Public Prosecutions, the messages up to that point demonstrate Ms Hyde’s increasing anger with Mr Ogilvy concerning his unpaid debt. Furthermore, the messages from Ms Sibley demonstrate that she was aware of the debt. The Director noted in her submissions that Ms Sibley admitted as much to police when a search warrant was executed at her house. Ms Hyde also gave evidence that she “may have mentioned” Mr Ogilvy’s debt in conversation with Ms Sibley and Mr Sims.

Returning to the text messages, at this point, Mr Sims also started messaging Mr Ogilvy (the messages appear in the record as being from “Jack New”, which Mr Ogilvy confirmed was a reference to Mr Sims). Within two minutes of Ms Sibley learning that Mr Ogilvy was at Mount Ainslie, Mr Sims sent a him a message saying “What’s doin”. Mr Ogilvy replied, “Got nowhere to go” and “I’m at mount ainslie”. At 11:45pm, Mr Sims replied “The best I can do come chill with me only got couple of points it’s the least I can do bro”. After some further exchanges, Mr Ogilvy replied, “I appreciate it Jack but not going to burden”. Mr Sims replied, “I can meet you I got fast push bike”. In other words, Mr Sims randomly contacted Mr Ogilvy in the middle of the night, offered to share with him the small quantity of drugs he had (“only got couple of points”) and, when told Mr Ogilvy didn’t want to “burden” him, offered to deliver the drugs to Mr Ogilvy on his push bike. The jury was entitled to treat that evidence with scepticism.

The exchanges between Mr Ogilvy and Ms Sibley (and Mr Ogilvy and Ms Hyde) then resumed as follows: 11:53pm Sibley to Ogilvy: I’m in tuggers near maccas 11:53pm Sibley to Ogilvy: Where do you want to meet 11:55pm Sibley to Ogilvy [Ogilvy misses call from Sibley] 11:58pm Ogilvy to Sibley: I’ll head to Nats to drop keys and the 50:dollars I got then will text you 11:58pm Ogilvy to Sibley: Or I can give the keys and money to you

Immediately after sending that message, Mr Ogilvy replied to Mr Sims’ offer to ride a push bike to where Mr Ogilvy was, “Too far bro”. Mr Ogilvy then told Ms Sibley he could head South to meet her. He then messaged Mr Sims, “I’ll head your way save me some”. In a later message to Mr Sims, he said he would pay him back “if my account ever fucking opens”. The exchanges resumed as follows: 12:04am Sibley to Ogilvy: Okay I’ll head Nats way meet out the back where you park 12:05am Ogilvy to Sibley: Ok I’m leaving mount Ainslie in 5. Got a flat 12:15am Sims to Ogilvy: All good where u 12:19am Sibley to Ogilvy: I’m parked round the back where are you?

Several points may be made about the messages up to that point. Shortly after 11pm, Mr Ogilvy twice told Ms Hyde he would drop the keys and $50 in the lock box outside her house. She insisted that he instead “come in and be accountable”. He in effect refused (“Not much I can do. I don’t need that again”). He then told Ms Sibley he was going to drop the items in the lock box. Accordingly, by 11:12pm, Ms Hyde and Ms Sibley both knew that Mr Ogilvy was planning to drop the items in the lock box. From that point, Ms Sibley made repeated attempts to contact Mr Ogilvy to find out where he was.

It may be inferred from Ms Sibley’s message sent at 12:04am (“I’ll head Nats way meet out the back where you park”) that, at 12:19am (“I’m parked round the back where are you?”), she was parked round the back of Ms Hyde’s place.

The messages continued: 12:27am Ogilvy to Sibley: Passing hume. Don’t worry if you don’t want to. 12:27am Ogilvy to Sibley: Or I can text when there 12:29am Hyde to Ogilvy: I’m not saying your using me. I know you will pay but the issue is not paying when you said you would. I wouldn’t of helped you with anything if I knew you were not going to have the money. You have fucked me over with not having the money. I need the money to give to my person for I can get more. And if I don’t have, I can’t go to work. So not only do I not get what you owe I loose money because I can’t go to work due to not having energy. You were given house keys under the impression you were paying rent also today to move it. I have given you money just for you can eat, I have given you money to get fuel. I have given food to cook at mine to eat, I have given you bling and helped you when I didn’t even know you. No one else has done that shit for you. And you can’t even be accountable for the position you have put me in. 12:30am: Sibley to Ogilvy: Sweet, how long cuz I have to drop these things of at the house and waiting on a key

As submitted by the prosecution, the messages up to this point demonstrate Ms Hyde’s increasing frustration over the debt.

After being reminded by Ms Sibley that she had to drop things off at the house and was waiting for the key, Mr Ogilvy messaged her at 12:40am to say that he would go to the house (instead of Ms Hyde’s lockbox). At 12:42pm, Mr Ogilvy also informed Mr Sims that he was dropping the keys at the house: 12:42am Ogilvy to Sims: Dropping keys off at house I just drove part eurt [sic] you are

Evidence was led in the cross-examination of Mr Ogilvy by counsel for Ms Sibley that Mr Sims lived up the road from Ms Hyde. After being shown the above message, Mr Ogilvy agreed that, when he sent it, he had just driven past Mr Sims place and was on his way to the house to drop the keys to Ms Sibley. However, he could not recall whether he saw Mr Sims and Ms Sibley together at that time.

Mr Ogilvy then continued his exchanges with Ms Hyde. He told her that he was dropping the keys. He did not mention to her that he was dropping them at the house. However, by 12:58am, she had been made aware that he was at the house: 12:44am Ogilvy to Hyde: Dropping keys 12:46am Ogilvy to Hyde: I am accountable. I know I am. I never said I wasn’t 12:47am Ogilvy to Hyde: I was told I would be able to use my money 12:58am Hyde to Ogilvy: You better stop playing ducking [sic] games. What fuck gives the right to go to the house when you haven’t paid rent and you were asked to return the keys. You were not asked to go to the house or anything else. 1:03am Hyde to Ogilvy: If I come down there because you are fucking playing more bullshit games by not returning the house keys you will be fucking yourself royally believe me. 1:05am Hyde to Ogilvy: You were warned by Marco that you can’t go owing and not pay when you said you would. You think it’s not a big deal well you will learn the hard way. 1:07am Hyde to Ogilvy You got money today for working and didn’t care to give me any of it when you only got to go to work because I helped you. 1:11am Hyde to Ogilvy [screenshot of text messages]

The message sent at 1:03am and 1:05am could have been construed as threats. Conversely, the last message suggests that Ms Hyde did not arrive at the house until at least 1:11am. The screenshot evidently showed exchanges between Ms Hyde and another person indicating that Mr Ogilvy was paid $250 in cash on 8 June 2022 (the copy in the appeal books is illegible but that was the effect of the cross-examination of Mr Ogilvy by senior counsel for Ms Hyde). Other evidence clearly establishes that Ms Sibley and Mr Sims arrived at the house before Ms Hyde. Mr Ogilvy’s evidence

At the outset of his EICI, Mr Ogilvy was asked to tell police everything he remembered. He gave a very long answer. He said he went to the house because “they needed the keys so they could get in and do some things there”. That is consistent with what Ms Sibley had told him. He said he pulled into the driveway as he usually did and that “Haylie and her friend Jack” pulled up right behind his car so he couldn’t get out.

It is significant that Ms Sibley and Mr Sims were together in a car at that point. One of the complaints made about the prosecution case is that it was put to the jury that the accused “lured” Mr Ogilvy to the house and that there was no evidence of any luring. But there was ample evidence that both Ms Sibley and Mr Sims were trying to find out where Mr Ogilvy was. In their communications with him, they gave entirely separate reasons for wanting to meet him around midnight. There was no indication in their messages to him that they were together or would be together. Each was sending messages that were ostensibly kind or supportive. The fact that they then arrived together suggests that those messages were disingenuous. Mr Ogilvy said that, when they arrived together, he “knew straight away something was, like, going on”.

Mr Ogilvy said Mr Sims jumped into the passenger seat of his car and that he had “an angry look on his face”. He later said that Mr Sims had a small hammer in his hand and was “threatening”. At the same time, Ms Sibley came to the driver’s door and was telling him to go inside the house. He later said that she took his car keys at that point. He said she opened the door and turned the key meaning to take it out but that she accidentally turned it to start and it “jumped a little bit” but that she then turned it the other way and pulled the key out. The detail of that evidence had a ring of truth. In cross-examination by counsel for Ms Sibley, Mr Ogilvy denied telling Ms Sibley that he was giving her the keys to his car to give to Ms Hyde.

He said, “at that stage they couldn’t find the keys to the house so they threw all my belongings from my car, like, out on the front lawn, trying to find keys”. In his further evidence-in-chief in the trial, Mr Ogilvy confirmed that it was Ms Sibley who took his car keys out of the ignition. He said he never recovered the keys and that he had to get a locksmith to make a new key for the car.

Mr Ogilvy said that Mr Sims and Ms Sibley found the house keys and were yelling at him to get inside, which he did. He said when he got inside, Mr Sims was threatening him with a hammer. He said that Mr Sims swung the hammer at him (but missed him) because he wouldn’t sit down on the couch when told.

Mr Ogilvy said another carload of people arrived which included Ms Hyde and two men. In cross-examination, he agreed that he asked Ms Sibley to call Ms Hyde. He said that, as soon as Ms Hyde arrived, she started hitting him on the back of the head and that she was wearing a ring and it cut his head. Ms Hyde, in her evidence, admitted hitting Mr Ogilvy at one point.

Mr Ogilvy said, “they just went through absolutely everything on my phone” and that they then “took whatever money I had on me” and that they were also “still ripping my car apart”. In his second evidence in chief interview, he said it was Ms Sibley who was going through his phone.

In his further evidence-in-chief in the trial, Mr Ogilvy said he could not remember who took the money from him. He thought it was taken “somewhere towards the beginning” when he was in the house. Under cross-examination by senior counsel for Ms Hyde, he agreed that everything was taken from him when he first entered the house and that Ms Hyde was not there at that point. However, he said, “Nat was in charge of everything” and that was why he said she took the money.

He later said that, during this time, Ms Sibley was going back and forth from the house to his car. In that context, he referred to an AVO against him for the protection of his former partner. Ms Sibley, in her evidence, admitted that, while she was in Mr Ogilvy’s car that night, she found “a domestic violence order placed on him by his wife”. She said that made her “quite upset” and that she “took it inside to ask him why he was lying” to her.

Under cross-examination from senior counsel for Ms Hyde, it was put to Mr Ogilvy that Ms Hyde told the others to stop hitting him. He responded that she was hitting him too. He agreed that Ms Hyde told the others to stop hitting him but said that was at the very end and that was “where it stopped”. He said it settled down for a minute and then he went to the bathroom.

Mr Ogilvy told police that he managed to convince them to let him go to the toilet and he locked the door, kicked out the window and escaped. He ran next door and sought help from a neighbour, who let him in and called police.

The trial judge admitted MFI C, giving the following reasons: I consider the evidence is relevant, even if only indirectly, to Ms Hyde’s state of mind at the time of her presence in the premises, both as to the assertion of a debt and a desire to recover it, as well as evidence that might be used by the jury in relation to a desire to avoid a connection with her or the events at the premises. I accept that the evidence is only directly relevant and the jury will need to be given an explanation as to the limited way in which it can be relevant. With that direction, I do not consider that the danger of unfair prejudice outweighs the probative value of the evidence. So far as the objection made on behalf of Ms Sibley is concerned, I accept that there is less connection with her. However, the relevance of the material as against her must be considered in the context of an allegation of joint commission which, in effect, can be established by the proof of conduct by Ms Hyde, even a at time when Ms Sibley has ceased to actively participate in those activities.

Ms Hyde’s written submissions addressed this ground only briefly. In summary, the submission was that the basis on which the photographs were admitted as against Ms Hyde involved speculation, as there was no evidence to connect her with the damage to the car.

Ms Sibley submitted that the photographs were not relevant to the case against her. She noted that there was no forensic evidence connecting her with the car; that she was not charged with any offence concerning the damage to the car; and that it was not suggested at the trial that it was she who moved it. Ms Sibley further noted that, apart from the two accused and Mr Sims, there was evidence that there were two other men present at the house.

The Director of Public Prosecutions submitted that the location and damaged condition of the car shown in the photographs was clearly relevant to the case against both appellants. She noted the relatively low threshold of s 55 of the Evidence Act and, in particular, that relevance may be indirect and is only required to have a minimal effect on the assessment of the probability of the existence of a fact in issue in the proceeding. She submitted that, on that test, the evidence was admissible for three reasons.

First, the Director submitted that the evidence was capable of corroborating Mr Ogilvy’s evidence. Plainly, it was. As explained above, Mr Ogilvy’s evidence was that Ms Sibley and Mr Sims ransacked the car looking for the house keys and that they were throwing his belongings on the ground. He also said that Ms Sibley was going “back and forth” between the house and the car, including when she confronted him with the AVO.

Secondly, the DPP submitted that, in the context of all of that evidence, the damaged state of the car could support an inference that the appellants and Mr Sims were attempting to obtain items from the car to satisfy the debt to Ms Hyde. We agree that the evidence was relevant for that reason. The evidence established that the car must have been damaged within the space of about 90 minutes, between about 12:40am and about 2:10am on 9 June 2022. The overwhelming likelihood was that it was damaged by the people who confronted Mr Ogilvy in the house. The appellants made the point that there were two other men present, being the men who arrived in the car with Ms Hyde. That was a matter for the jury to assess in the context of all of the evidence, including the text messages during the few hours leading up to the confrontation, which were almost exclusively between Mr Ogilvy, the two accused and Mr Sims.

Thirdly, it was submitted that the fact that the car had been moved away from the house was capable of supporting an inference that the appellants wanted to avoid detection of what had happened in the house. We agree that the evidence was relevant for that reason. The fact that there were other possible explanations as to the location and state of the car does not deprive the evidence of probative value for that purpose. The evidence being relevant to a fact in issue, its assessment was a matter for the jury (unless it was liable to be excluded under s 137).

The trial judge’s conclusion that the evidence had “less connection” with Ms Sibley was generous to her. It was open to the jury to infer that the car keys, which Mr Ogilvy said she took from the ignition, were used to move the car. They were later found in her possession during the execution of a search warrant. That fact alone could not prove any sure connection with the removal of the car from the scene, but it was a relevant circumstance. The evidence as to the condition of the car when it was found was clearly relevant to the case against Ms Sibley because it was capable of corroborating Mr Ogilvy’s evidence as to what happened when he first arrived at the house.

The danger of unfair prejudice was minimal. The trial judge was careful to direct the jury that there was no direct evidence that either accused caused the damage to the car or moved it. He repeated that point when he summarised the arguments put by defence counsel.

For those reasons, in our respectful opinion, the trial judge was correct to admit the photographs in the prosecution case against both accused. Accordingly, as indicated above, we reject ground (b)(ii).

She said that, when they got inside, Mr Sims was “going off” and that she tried to calm him down but couldn’t. She said that Mr Ogilvy agreed with her as to “why Jack was like this” and that he asked her to call Ms Hyde “to come and have a chat”. She said that when Ms Hyde arrived (with two men in tow) she was “really calm”. However, she said that she later saw Ms Hyde get “a bit frustrated” and slap Mr Ogilvy. Ms Sibley said she then went outside. She went back inside at some point and heard Ms Hyde telling the men to stop hitting Mr Ogivly. She saw he had a bruised eye and went to the fridge to get him a cold compress. She went back to the car and was playing on her phone when she saw the AVO. She took it inside and asked why he was lying to her, because he had previously told her he would never hurt a woman.

Ms Sibley said she went back to Ms Hyde’s afterwards and that they were having a go at her because she stopped for police and they thought she was going to tell police. They took her phone and “started deleting things”.

In cross-examination, in summary, Ms Sibley maintained her denials. She denied taking the car keys out of the ignition, denied taking Mr Ogilvy’s phone and denied being present in the house when Mr Ogilvy was assaulted (apart from the slap by Ms Hyde). She maintained (as she had said before) that she needed to go to the house to drop off the tile glue and that she was under the impression that Mr Ogilvy had the only keys to the house.

Ms Sibley made six points in respect of the case against her. As already noted, she joined in the submission considered above that Mr Ogilvy was not a credible witness. Secondly, she submitted that she was a credible witness. Her sixth point also addressed her credibility.

The Director of Public Prosecutions submitted that there was no reasonable possibility that either appellant’s versions of events was true. As to Ms Hyde, it was submitted that, considered in the context of the whole of the evidence, her innocent explanation of her and Ms Sibley’s accounts bordered on the fanciful. It must be said in that context that the evidence of both accused went a considerable way to proving the prosecution case. In each case, the evidence sailed a difficult and ultimately implausible path through the uncontested facts. Ms Hyde admitted arriving at the house with two men, hitting and confronting Mr Ogilvy, seeing Mr Sims and another man lay into him until he was clearly hurt and calling them off. Nothing in that evidence should have caused the jury to entertain a reasonable doubt about her participation in the joint criminal enterprise.

As to Ms Sibley, the Director submitted that she was “the most unsatisfactory witness” and that her evidence was “inconsistent, contradictory and made little sense”. We agree. Her account of wanting to get a key from Mr Ogilvy so she could drop off some tiling glue at the house was completely implausible. It seems to have been forgotten once she arrived at the house. Even on her own account, after obtaining the house keys, she went straight inside with Mr Ogilvy and Mr Sims. Her account of what happened next went a considerable way to corroborating Mr Ogilvy’s evidence. She saw him get hit by Ms Hyde. She was coming and going between the house and the car. She saw him with a bruised eye. She found the AVO in the car and confronted him about it. There is nothing in her evidence to support the argument that the jury ought to have entertained a reasonable doubt.

Ms Sibley’s third point was that the text messages sent by her to Mr Ogilvy were only supportive and caring towards him. It is true that her texts were framed in that way. The question for the jury was whether she was being sincere or disingenuous. Her disingenuity was demonstrated by the fact that she arrived at the house with Mr Sims. She had made no mention of him in her text messages to Mr Ogivly. That alone was enough to indicate that the purpose of the messages was to lure Mr Ogilvy to a place where she and Mr Sims would be waiting, rather than to be caring and supportive.

Ms Sibley’s fourth and fifth points concerned the absence of any evidence of contact between Ms Hyde and Ms Sibley or between Ms Sibley and Mr Sims prior to their attendance at the house. It was submitted that there was accordingly no evidence of any agreement.

As noted above, the existence of an agreement to commit the offences was the critical issue in the trial. That question was to be determined by the jury applying their common sense and considering the evidence as a whole.

The starting point in considering that question is the undisputed fact that Mr Ogilvy did owe a debt to Ms Hyde and that the debt included an amount for drugs supplied to Mr Ogilvy. Further, it is clear from the text messages that he lied to her about repaying the debt and that she knew he was lying. He had previously resorted to the excuse that he could not access his bank account. However, as at 8 June 2022, she knew he had been paid cash that day. Then he told her he had decided to buy insulin. Ms Hyde clearly did not believe that excuse (“Oh so you went to the drs to get your insulin”). Mr Ogilvy admitted in cross-examination that he is not diabetic and has never needed insulin. By 11pm on 8 June 2022, Ms Hyde was furious.

The text messages must be assessed in that context. The Director of Public Prosecutions submitted that text messages considered in the context of the evidence as to the relationships between the appellants and Mr Sims supported an inference that each was acting in concert with a view to recovering the debt from Mr Ogilvy. She submitted that it was well open to the jury to make that finding.

Most of the Director’s points about the text messages are incorporated in the discussion of that evidence above. As to the relationships, the Director noted that Ms Hyde by her own admission was a drug dealer and that Ms Sibley and Mr Sims were among her customers. The Director also noted the evidence of Mr Ogilvy who, in his evidence-in-chief interviews, said of Ms Hyde, “she’s in charge” and that “Jack and Hayley are definitely her right-hand – you know, her people”.

The fact that Ms Hyde and Ms Sibley had set their Signal messages to disappear means that there was a gap in the evidence. That gap could not be filled with speculation or by jumping to conclusions. However, there was ample other evidence to support the inference that, while all three (Ms Hyde, Ms Sibley and Mr Sims) were communicating separately with Mr Ogilvy, asking where he was and seeking to meet up with him, they were also communicating with each other. The jury, with all its advantages, was best placed to assess that likelihood. There is clearly at least a reasonable doubt as to whether Ms Hyde had arrived at the house when the $50 and other items had been taken, but her two “right-hand people” had, and there was a very strong circumstantial case that they were there at her request.

The most compelling evidence of that is the otherwise unlikely event in the middle of the night that, while Ms Sibley and Mr Sims had each represented separate reasons for wanting to meet up with Mr Ogilvy that night, they just happened to find each other and arrive together at the house within minutes of his telling them he was going there. According to Mr Ogilvy’s evidence, the very first thing that happened when he arrived at the house was that Mr Sims jumped in the passenger seat and said “so, what’s going on mate?” and that Ms Sibley then came to the driver’s side door, took his car keys and said “why didn’t you communicate with Nat? What is going on? You need to communicate better”. This was after he had failed to answer three calls from Ms Hyde, the third after she had sent a message, “answer the fucking phone”, and then refused to go into her house to “be accountable”. The inference that they had been sent by Ms Hyde was overwhelming.

At around the same time, Ms Hyde’s messages to Mr Ogilvy became overtly threatening, including her message at 1:05am, “You were warned by Marco that you can’t go owing and not pay when you said you would. You think it’s not a big deal well you will learn the hard way”.

It is likely that, by that time, Mr Ogilvy was already at the house with Mr Sims and Ms Sibley. That Ms Hyde was summoned to the house at Mr Ogilvy’s request is not inconsistent with her being part of the same agreement in circumstances where, earlier the same evening, she had demanded that he come to her to be accountable and he had refused.

Ms Hyde and Mr Sims both admitted hitting Mr Ogilvy while he was in the house. Ms Sibley admitted receiving his car keys. Her case was that he handed them to her as collateral for the debt but, if that was so, it only tended to confirm the existence of an agreement reached before he arrived at the house to make him accountable. Ms Sibley also admitted later being in his car, finding the AVO order and going back into the house to confront him about that. It was not disputed that he escaped out the bathroom window and had injuries. In short, the uncontested or admitted facts alone established a compelling case that there was an agreement between the two accused and Mr Sims to hold Mr Ogilvy and make him accountable.

The Director also relied on the evidence as to what the accused did after Mr Ogilvy left the house. The neighbour to whom he escaped said he arrived at about 1:30am. Police arrived at about 2:12am. Other police saw Ms Sibley in the area at about 2:25am. The car was found at around 3am. As submitted by the Director, it is difficult to reconcile the movement of the car “with anything other than a desire to avoid detection of what had transpired in the house”. Furthermore, as the Director submitted, that timing suggests that the likelihood that Ms Sibley was still at the house when Mr Ogilvy escaped and when the car was moved is high.

The Director also relied on Ms Sibley’s call to Crime Stoppers, which had the air of a further attempt to distance herself from the offences. That was preceded by text exchanges with a friend in which she was asking for accommodation because someone had made a report that she and a mate “did an aggravated robbery” and her lawyer had told her to “lay low for a few days”. The friend replied that aggravated robbery was serious and asked, “if you got nothing to hide then why hide??”. She replied: I wondered why my lawyer wanted me to keep quiet etc, should I contact the police and tell them that I was there to collect keys and was helping look and then just sat in the car?

As she admitted in her evidence, she did not just sit in the car. At the very least, she took or received Mr Ogilvy’s car keys, saw him assaulted inside the house and found the AVO in the car and went back into the house to confront him about it. She also ended up with his car keys and phone in her possession.

The Director also noted in this context the searches undertaken by Ms Hyde as to how to destroy or clean up DNA.

Based on our review of the evidence and for the reasons discussed above, it was well open to the jury to be satisfied beyond reasonable doubt of the guilt of both appellants on both counts. We reject ground (a).

The second complaint concerns the remark that “Ms Sibley ended up driving across Canberra at 1am in the morning in the company of [Mr Sims]”. The complaint was based on the fact that, according to Ms Sibley’s evidence, Mr Sims got into her car only minutes before she arrived at the house. As noted by the Director, the jury was not obliged to accept that evidence, but it must be acknowledged that it was the only evidence on the issue. It may be accepted that the words “driving across Canberra” implicitly assumed rejection of that evidence and suggested that he was in the car for longer, but that is inconsequential. The significant fact, which was not in dispute, is that Ms Sibley and Mr Sims arrived at the house together. There is no force in this complaint.

Ms Hyde’s complaints were set out in her notice of appeal (numbered (i)-(x)). The first is the same point as Ms Sibley’s first point addressed above.

The second complaint concerns the prosecutor’s remark that the complainant “was slurring and did not seem right when seen in the body-worn camera footage”. It is not possible to assess this submission because the appellants did not include that footage in the appeal books. In any event, the point was made by reference to footage the jury had seen. It was a matter for the jury to judge what they thought of the complainant’s appearance in the footage.

The third complaint concerns a submission “that Natalie Hyde’s demeanour shifted, and she was less frank during portions of her evidence”. It is impossible for this Court to assess that submission, other than by reference to the fact that no complaint was made about it at the time it was made, in the presence of the people who did see her evidence.

The fourth complaint alleges that the prosecutor submitted “that Ms Hyde had interfered with the liquid in the glass seized by police”. Mr Ogilvy gave evidence that Ms Hyde told him to drink from a glass and that it didn’t do anything to him at the time but that later when he tried to run away, he kept collapsing and couldn’t talk properly. Police seized a glass from the house which had Mr Ogilvy’s thumb print and DNA on it but found no trace of any drugs in the liquid in that glass.

In her closing address, the prosecutor said: I’ll say something more to you now about that drink that he says Ms Hyde made him take. There was no question that no drugs were detected in the liquid that was taken from the th glass. But you heard that that was not seized until the night of the 9 , and we know Ms Hyde had the keys to the house.

The prosecutor did not say, as complained of in the notice of appeal, that Ms Hyde had interfered with the liquid in the glass. It may be accepted that the insinuation was that she may have done so, because she had the opportunity to do so. In a case in which Ms Hyde had admitted deleting messages and searching how to remove DNA, that was not an unreasonable point to make to the jury. The insinuation was based on an accurate statement of the evidence and was not put in an inflammatory way. This complaint is not made out.

The fifth complaint concerned a submission by the prosecutor that Ms Hyde had the loyalty of Mr Sims and Ms Sibley. There was ample evidence to support that submission.

The sixth complaint concerned the prosecutor’s submission (set out in full above) that “this incident happened because Ms Hyde got sick of waiting to be paid”. There was ample evidence to support that submission.

The seventh complaint concerned the submission that Ms Sibley had lured Mr Ogilvy to the house. This point has been addressed above. There was a proper basis for the submission, even though it was Mr Ogilvy who suggested he would meet Ms Sibley at the house. When the messages are considered carefully and as a whole, a clear picture emerges of Ms Sibley and Mr Sims each presenting different pretexts for meeting up with Mr Ogilvy that night, wherever he was.

The eighth complaint concerned a submission that Ms Hyde brought two men with her for reinforcement. It is difficult to understand this complaint. The submission was factual; the argument that the men were there for reinforcement was an understatement (Ms Hyde’s own evidence was that one of the men and Mr Sims kept hitting Mr Ogilvy until he was clearly hurt, at which point she told them to stop).

The ninth complaint concerned a submission made by the prosecutor that “there doesn’t appear to be any glaring inconsistency that you would be able to identify between what he told Jarvis [a police officer who obtained body-worn footage], what he told medical staff, and what he later told police in the interview”. To make good the complaint that that submission was without foundation, it would have been necessary to demonstrate that there were glaring inconsistencies between those three documents, but the appellants made no attempt to do so. It is not for the Court to trawl through the documents to test such a submission.

The tenth complaint concerned the following submission by the prosecutor: It was not a fluke or a coincidence that all these people were at that house in the middle of the night. They were all acting on the same understanding, we say, that Ogilvy would pay, and this was the agreement to confine him. There was a non-verbal understanding between them, that is, the accused people. And they were all acting in accordance with what Ms Hyde wanted, which was to have Ogilvy confined. While he was being confined, you have heard, he was also robbed.

This complaint is also difficult to understand. The submission was the prosecution case. It was the case the prosecutor opened and the case she closed. There was evidence to support it. Whether the evidence did support it was a matter for the jury.

For those reasons, we reject ground (c).