Mena v DPP [2024] ACTCA 34

All three accused appealed their convictions, but not their sentences. Ms Parlov later abandoned her conviction appeal, leaving only Mr Mena and Mr Roberts as the remaining conviction appellants, both represented by counsel. They will be referred to in these reasons collectively as the appellants, and Ms Parlov separately as she is no longer an appellant.

Both Mr Mena and Mr Roberts abandoned three appeal grounds each. The following grounds of appeal were ultimately pressed; being three grounds in common and one ground advanced only by Mr Mena: Ground 1: The jury’s verdicts should be set aside on the ground that they are unreasonable, or cannot be supported, having regard to the evidence. Ground 2: The trial judge erred in his directions to the jury about evidence of identification (a ground of appeal only advanced by Mr Mena). Ground 3: The trial judge erred in failing to warn the jury pursuant to s 165(1)(d) of the Evidence Act 2011 (ACT) that the evidence of [Ms B] may be unreliable as evidence given in a criminal proceeding by a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding. Ground 4: That the verdicts should be set aside on the ground of a wrong decision of any question of law, namely the decision to permit two interviews of [Ms B] to be tendered as audiovisual recordings within the meaning of s 51 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) was wrong at law.

Both Mr Mena and Mr Roberts seek a verdict of acquittal, and, in the alternative, a retrial. While Mr Roberts had the same counsel on his appeal as for his trial, Mr Mena had different counsel. For that reason, when describing what took place at the trial in relation to Mr Mena, it is convenient to refer to his “trial counsel”.

For the reasons that follow, all of the grounds of appeal must fail and, accordingly, the appeals must be dismissed.

There was evidence before the jury of a number of events of significance relevant to identification of the appellants (and Ms Parlov) prior to and on 10 and 11 March 2021. That evidence came from Constable Jack Bigmore, Ms B, Mr A and screenshots of Facebook text messages between Ms B and Ms Parlov, and between Ms B and Mr Roberts tendered without objection through Ms B. This includes, in particular: (a) communications between Mr Roberts and Ms B and between Ms Parlov and Ms B prior to 10 and 11 March 2021; (b) a police officer’s observation of Ms Parlov and Mr Mena being together at about 8.00 pm on 10 March 2021, the night before the shooting which occurred soon after 5.34 am on 11 March 2021; (c) communications between Mr Roberts and Ms B and between Ms Parlov and Ms B on the evening of 10 March 2021 and in the early hours of 11 March 2021 to organise a meeting, which took place as per the next entry; (d) two consecutive but separate conversations during a meeting at a car park near the Woolworths in Bonner, another suburb of Canberra, not far from Spence, soon after 3.06 am on 11 March 2021, probably at about 3.15 am, being just over two hours before the shooting; the first conversation between Mr Roberts and Ms B and, immediately after that, the second conversation between Mr Roberts and Mr A – this may conveniently be referred to as the 3.15 am Bonner meeting; (e) communications in the early hours of 11 March 2021 between Mr Roberts and Ms B and between Ms Parlov and Ms B, soon after the 3.15 am Bonner meeting, and before the shooting soon after 5.30 am; and (f) the arrival of the first two intruders at the Premises soon after 5.30 am on 11 March 2021 and, shortly afterwards, the third intruder arriving and shooting Mr A twice.

This Court is called upon to assess the entirety of the basis that the jury had for being satisfied beyond reasonable doubt that the intruders included the appellants. These reasons focus on key aspects of that evidence.

Sometime after 5.00 am, Ms B and Mr A arrived back at the Premises. Soon after 5.30 am, two intruders entered the Premises. A short time after that, a third intruder entered the Premises and shot Mr A twice, reloading quickly between shots, as detailed at [8] of the sentencing remarks reproduced above. All three intruders then left the Premises. The prosecution alleged, and the jury by their verdicts accepted, that the first two intruders were Mr Roberts and Ms Parlov, and that the third intruder and shooter was Mr Mena.

After the three intruders left: (a) Mr A attempted to contact various people; (b) Mr A called and spoke to Mr Christopher Parlov, Ms Parlov’s brother, and sent him a text message with the address of the Premises where he had been shot; (c) Ms B began cleaning the crime scene at the Premises; and (d) Mr Parlov collected Mr A from the Premises and took him to Calvary Hospital, arriving at about 6.15 am, whereupon Mr A underwent emergency surgery, as detailed at [9] of the sentencing remarks reproduced above.

On 22 March 2021, Mr Mena and Mr Roberts were arrested.

On 30 March 2021, Ms B was arrested on suspicion of having committed offences related to cleaning the crime scene on 11 March. Ms B participated in police interviews that day and the next day, 31 March.

On 15 April 2021, Ms Parlov was arrested and charged.

On 16 December 2021, Ms B was sentenced to imprisonment for five months for an offence of concealing or destroying evidence with the intention of influencing a decision about starting a legal proceeding. She received a modest discount for agreeing to give evidence against the appellants and Ms Parlov. The commencement of the sentence was delayed until 25 January 2023.

On 24 and 25 May 2022, an application was made by the prosecution and granted by Norrish AJ to play recordings of Ms B’s police interviews at trial: R v Parlov; R v Mena; R v Roberts [2022] ACTSC 121; 298 A Crim R 229.

The first jury trial took place between 1 and 18 August 2022. The jury was discharged, being unable to reach a unanimous verdict.

The second trial took place between 21 November and 2 December 2022. By consent, Mr A and Ms B were not recalled to give evidence again, with their evidence instead being adduced by playing a video-recording of their evidence from the first trial. Neither accused gave evidence or called any evidence in their case. The jury returned guilty verdicts on 2 December 2022.

The sentence hearing for all three offenders took place on 6 and 11 April 2023. As noted above, there is no appeal from the sentences imposed.

The following passage from Domican at 561-562 (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ) remains apposite, omitting footnotes: The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed "as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case". A warning in general terms is insufficient. The attention of the jury "should be drawn to any weaknesses in the identification evidence". Reference to counsel's arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge's office behind it. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence.

Section 165(1) of the Evidence Act deals with unreliable evidence and provides that this section “applies to evidence of a kind that may be unreliable”, followed by a non-exhaustive shopping list, which includes at (b) identification evidence. Section 165 then provides: (2) If there is a jury and a party requests, the judge must— (a) warn the jury that the evidence may be unreliable; and (b) tell the jury about matters that may cause it to be unreliable; and (c) warn the jury of the need for caution in deciding whether to accept the evidence and the weight to be given to it. (3) The judge need not comply with subsection (2) if there are good reasons for not doing so. (4) It is not necessary that a particular form of words be used in giving the warning or information. (5) This section does not affect any other power of the judge to give a warning to, or to inform, the jury. (6) [evidence by children] (7) Any warning or information in relation to that matter may be given only in accordance with section 165A (2) and (3).

The particular responsibility of an appeal court in relation to an unreasonable verdict appeal ground depending on identification evidence was stated in Fennell v The Queen [2019] HCA 37; 93 ALJR 1219 at [81] (Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ), footnotes omitted: Where a court of criminal appeal is called upon to decide whether it considers that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of the offence charged, the court must not disregard or discount either that the jury is the body entrusted with primary responsibility of determining whether the prosecution has established the accused’s guilt or that the jury has had the benefit of having seen and heard the witnesses. At the same time, however, the court may take into account the realities of human experience, including the fallibility and plasticity of memory especially as time passes, the possibility of contamination of recollection, and the influence of internal biases on memory. The court can also take into account the well-known scientific research that has revealed the difficulties and inaccuracies involved in assessing credibility and reliability. And especially is that so in a case like this where the jury has been subjected to the seductive effects of a species of identification evidence that has in the past led to miscarriages of justice.

Well-established concerns as to the hazards of identification evidence of the kind raised in this appeal were succinctly stated in Alexander v The Queen [1981] HCA 17; 145 CLR 395 at 426 (Mason J): Identification is notoriously uncertain. It depends upon so many variables. They include the difficulty one has in recognizing on a subsequent occasion a person observed, perhaps fleetingly, on a former occasion; the extent of the opportunity for observation in a variety of circumstances; the vagaries of human perception and recollection; and the tendency of the mind to respond to suggestions, notably the tendency to substitute a photographic image once seen for a hazy recollection of the person initially observed.

It may be noted that aspects of the warnings in Alexander do not apply to this case: the observations under challenge, while not protracted, and taking place in a circumstance of high stress and drama, were not fleeting, and no photographs were involved in the identification process. While the appellants, and especially Mr Mena, place some reliance on Mr A and Ms B being responsive to suggestions and suggest the presence of cognitive bias, that argument requires close attention.

In the Victorian Court of Appeal in R v Lovett [2006] VSCA 5, Ormiston JA (with whom Buchanan and Ashley JJA agreed) said at [41]: In the present case there can be little doubt that the relevant witnesses all knew the applicant in as much as they were either members of the football club or were connected to it, and all, with one or two minor exceptions, had met him on numerous occasions and were familiar with him. The vice in most identification evidence is usually seen in the manner in which a fleeting glance of the perpetrator of a crime is recalled and attached to a person or a picture of a person later shown to the witness; but I would be hesitant to say that, merely because a witness is already familiar with the person who it is believed was present at the scene of a crime, thereby it automatically follows that there is no need for a warning. Difficulties of observation at the time a crime is committed frequently are just as great and the possibility of jumping to conclusions as to the identity of the miscreant with a person already known may likewise be just as great, albeit that there will ordinarily be no need for any subsequent formal identification process. What is required in every case will vary, the object in each being to avoid a miscarriage of justice which may flow from the failure to warn a jury of the danger arising from possible confusion or mistake. Even as long ago as Davies and Cody [(1937) 57 CLR 170 at 181] the undesirability of placing cases relating to the identity of an offender in separate categories was reflected in the Court’s observation: It is almost unnecessary to say that the amount of care and the nature of the precautions which should be taken when a potential witness is brought to identify an accused or suspected person must vary according to the familiarity of the witness with that person.

The concept of familiarity of a witness with the person they purport to identify has been articulated as an important distinction between evidence of recognition of a person known to the witness and evidence of identification of a person not previously known to the witness. Generally speaking, the risk of mistake is less for the former, but it remains a question of evidentiary quality. Warne at [31(c)] is an example of the application of this qualitative distinction: Ms Walker’s evidence was that during the offending she had recognised a person who she already knew; not that a person she observed during the offending was the person in the dock. That factor does not in itself remove the difficulties involved in relying on identification evidence (as illustrated by R v Blundell [2019] SASCFC 84; 278 A Crim R 531 (Blundell), where one of the identification witnesses recognised the offender as the son of a neighbour having seen him only for “a split second”); however, it does change the position somewhat. The face of a person seen for the first time is likely to be very hard to commit to memory and recognise later; whereas most people will take only a moment to recognise a friend or acquaintance. Against that, there is the possibility of expectation bias, which the trial Judge pointed out to the jury.

In the South Australian Court of Criminal Appeal in R v Blundell [2019] SASCFC 84; 278 A Crim R 531, Peek J observed (Kourakis CJ and Hughes J agreeing); footnotes embedded: [53] There is, of course, something of a distinction between identification and recognition. The matter was well put by Blow J in R v Carr [(2000) 117 A Crim R 272, 289. See also Davies v The King (1937) 57 CLR 170, 181 (Latham CJ, Rich, Dixon, Evatt and McTiernan JJ); Mills v State of Western Australia (2008) 189 A Crim R 411, 432 (Buss JA)] thus: 61. As Boardman and Turnbull illustrate, “recognition” cases will often involve just as much danger of mistaken identification as cases involving persons first seen at the times of their alleged crimes. It would therefore be illogical to hold that a warning as to the dangers of mistaken identification of the sort discussed in Domican need never be given in a recognition case. Obviously, such a warning would be inappropriate when the witness is familiar with the appearance of the accused and the circumstances of the recognition leave little scope for any chance of a mistake. Whether such a warning is necessary in a recognition case must depend on all the relevant circumstances, including the degree of familiarity of the witness with the accused, the circumstances in which the accused was previously seen by the witness or known to the witness, and the circumstances in which the accused is alleged to have been seen by the witness at or about the time of the crime. … [54] I consider that such a distinction has very little part to play in the present case. Indeed, the critical evidence of Ms Williams presents the interesting spectacle of the witness originally eschewing (in the 000 call) any suggestion whatever of “recognising” someone she knew but at trial taking the different line that she had in fact seen the appellant prior to the day of the assault and that he had “looked familiar”. In such circumstances, nothing is to be gained by resorting to labels; one must directly consider whether the dangers that may have arisen in the case have been adequately addressed by the trial Judge.

In Warne, Blundell was commented upon by this Court and distinguished as follows at [50]: [R v] Burchielli [[1981] VR 611] was cited by Peek J, writing for the South Australian Court of Criminal Appeal, in Blundell. There, an assault had occurred late at night and the only live issue was whether the appellant was the perpetrator. The victim described the incident as a blur and had selected a photograph of another person in an identification procedure. A neighbour, Ms Castellari, did not see the assault but gave evidence that her sensor light had come on and she had seen the appellant (whom she knew as the son of another neighbour) look up for a split second as he walked towards his mother’s unit. The victim’s partner, Ms Williams, gave evidence that she came out of her unit during the assault and saw the perpetrator’s face from a metre away. During her 000 call to the police she described him as “a random guy”. Later, somebody told her that the appellant was the perpetrator. Later still, she and Ms Castellari both participated in photographic identification procedures and both selected the appellant’s photograph.

The above authority makes it tolerably clear that beyond the above points of high principle which are not in doubt, the question of whether the identification evidence is strong enough, and whether the trial judge’s directions about it are sound, will invariably turn upon the evidence, facts and circumstances in the case at hand. Sometimes an element of recognition will be substantial and the identification evidence inherently less troubling; in other cases, such as Blundell, the basis for a prior recognition will be so fleeting as to add little or nothing to the evanescent nature of the evidence given about the observations made at the time of the event upon which the prosecution’s case turns.

It follows that the focus of the analysis of the competing arguments in this appeal must turn on a consideration of all of the evidence that was before the jury (Ground 1); and also, upon the trial judge’s directions to the jury in the context of that evidence (Ground 2). The Court must look to the circumstances in which the identification occurred, the degree of familiarity Ms B and Mr A had with the accused, and any circumstantial corroboration of their evidence.

After giving evidence of the contact details Ms B had obtained for Mr Roberts, as reflected in the Facebook text messages referred to below, her evidence in chief returned to the topic of the 3.15 am meeting, as follows: When you were at the car park with Brad and you mentioned that he wanted to get Bec and Sugi, what was his demeanour like, his body language?---He was – I don’t know how to describe it. He wasn’t, like, acting a big and tough. He was focused on contacting Rebecca and Sugi. When he was reached over to the window of the car and asked me if that was the guy that …(inaudible)… he was whispering to me and then was trying to contact Rebecca and Sugi while evading the questions that [Mr A] was asking him. What was [Mr A] asking him?---Why he was put on the paedophile – why they were accusing him of being a paedophile and he just refused to answer. Sorry, who refused to answer?---Bradley.

After some questions about Mr A driving them away from the 3.15 am Bonner meeting, Ms B was asked in chief about her prior knowledge of “Sugi” and “Brad” (that is, Mr Mena and Mr Roberts): You mentioned the name Sugi?---Yes. Do you know Sugi?---I know him through Rebecca Parlov. Okay. How long have you known him through her for?---Not long. Only, again, a handful of times of meeting him. I just knew that he was supposed to be one of Rebecca’s partners. What do you mean when you use the word ‘partner’?----Well, they were always together and she referred to him as her boyfriend, yeah. So when you had seen Sugi, were you in Bec’s company on those occasions?---Yes. Had you spoken to him previously on those occasions?---Probably if I’ve been with Bec, yes. Yes. What about the occasions that you’ve seen Brad before? Had you spoken to him before?---Yes. This wasn’t the first time that you’d ever spoken to him in the car park?---No.

The evidence in chief of Ms B then immediately turned back to the events after the 3.15 am Bonner meeting up to the time that Mr A was shot less than three hours later: Tell us what happened as you were driving around that night?---After we had left the shops, we received a message from Bradley Roberts telling us to meet up at Mulligans Flat. We told him that we had to do something - - - Sorry. Just for the people in the court who don’t know, Mulligans Flat is near the Bonner shops, is that right?---I don’t know. I just – that’s why I had him drive me around. Okay. You said that you replied saying you had something else to do, so keep continuing?- --Yes. So we had to go drop off another person that was in the car so we went to do that. After we’d done that, that’s when multiple phone calls, text messages, something about ‘I’m not going to let this slide’, ‘I need the money back,’ or something. I can’t remember whether that was from Rebecca’s Facebook or from Bradley’s Facebook but one of them sent that. We – after we dropped the other person in the car off, we’ve gone back to my house and we - - - Just before you tell us what happened at your house. You said that you received multiple calls, I think. Did you answer any of them?---There was a fair few that I didn’t answer and then I did answer one and that was when we were back at my house. So tell us about that?---So after getting the message that ‘I’m not going to let this slide’, ‘need the money back’, I ended up answering one of the Facebook phone calls from Rebecca Parlov and during that phone call she was, ‘Where are you?’, ‘Tell me where you are’, ‘We’re going to find you one way or another.’ I kept telling her, ‘This doesn’t need to happen. He’s not trying to hide from it, that’s why he got out of the car, that’s why he tried to talk to Bradley.’ She’s, like, ‘Youse were meant to wait up the road.’ Told her that, ‘He’s willing to talk. Just calm down.’ Then I heard the disturbance through the phone while the car went past the front of the house. That’s when she’s said that, ‘Just tell us where you are. I can’t keep driving around like this.’ I told her that, ‘Don’t be stupid. You know where we are. I heard the car,’ and that’s when her car – I heard her pull up and the car stopped and she’s turned around and she said, ‘That’s right. I do know where you are.’ We …(inaudible)… and I ended up having the phone on speaker. [Mr A] was talking to her. She kept telling me to come out the front. I kept telling her that I was at my house and not to do this at my house. He – sorry. She started banging on the door. She banged and I opened the door. I told her not to do that there. And she said that, ‘We’re coming in one way or another.’ I looked at [Mr A]. [Mr A] looked at me. I said to him that she’s – she’s going to come in one way or another. He definitely nodded. I opened the door. She shoved past. She just come straight in, straight up in [Mr A]’s face. He’s – he was sitting on a chair. He stepped up from the chair that was in the kitchen and I was sitting on the table. He’s grabbed a kitchen knife and he’s taken a step back. At this point Bradley was sitting near the cupboard thing that I had next to the table, and as I walked into the kitchen she’s yelled out, ‘You want to pull – you want to pull a knife on me girl?’ And then Sugi’s come through the door. And I stepped back through the – to where the lounge is. I was in the kitchen next to the oven. Sugi’s come through, stood in front of – stood in front of the wall that’s in front of the door and [Mr A]’s taken a few steps over, standing next to the fridge and then I heard the gun go off. He’s spun around and looked over. Sugi’s following him with the gun. He points the gun and then he shoots [Mr A] in the face.

After a luncheon adjournment, Ms B identified screenshots of Facebook messages and calls between her and Ms Parlov in the period from 22 February 2021 to 5.19 am on 11 March 2021, a short time before the entry to the Premises soon after 5.30 am. Those screenshots were admitted into evidence, without objection, as Exhibit 19.

The Facebook messages in Exhibit 19 confirm numerous communications between Ms Parlov and Ms B between 1.26 am and 5.34 am on 11 March 2021, including Ms Parlov’s inquiries about Ms B’s whereabouts, Ms B saying she was at home, and an over 13-minute call from Ms Parlov starting at 5.34 am. Ms B was asked questions about some of those communications, confirming aspects of her evidence reproduced above. Ms B then gave evidence about the 5.34 am telephone conversation flowing into the entry of the intruders into her home: Do you see that there is a phone call from Rebecca at 5.34 am that morning?---Yes. Is this the phone call that you told us about as you heard the car pull up outside your house?- --Yes, it is. You mentioned that you had that phone call on speakerphone to police?---No, to [Mr A]. Sorry, in the interview to police do you remember - - -?---Yes. - - - mentioning that you had it on speakerphone?---Yes, I ended up putting it on speakerphone to begin with. It wasn’t - - - What I want to ask you is can you just tell us what Bec’s tone of voice was when she was on the phone to you in that call?---Very aggressive. You mentioned before that you thought the comment about not letting it slide related to money. Is that right?---Yes. But you have also mentioned that there was some complaint or conversation about [Mr A] being a pedo, or something like that?---Yes. In this phone call that she had with you that you had on speakerphone what was the – what was the call about?---She wanted to know – she was calling and trying to know where we were. She wanted us to meet up with her so that she could talk to [Mr A], [Mr A], about him being a paedophile. Because I wouldn’t tell her where we were, she kept making noises, just telling me, ‘I can’t keep driving around like this’. The once she’s pulled up and I told her that she already knew where we were and she’s like, ‘Yes, you’re right. We’re coming in. Open the fucking door’ and started banging on the door until I had opened it.

After some evidence about Ms B telling police she had told Ms Parlov and Mr Roberts that Mr A was “more than happy” to talk to them about allegations he was a paedophile, being a reference to the 3.15 am Bonner meeting, Ms B gave evidence about the 5.34 am telephone call from Ms Parlov. That call was put on speaker phone by Ms B, evidently so that Mr A could hear what was being said. That conversation continued into the time the intruders entered the Premises. Ms B’s evidence in chief at that point was as follows: Now, looking at that Facebook page in front of you, page 21, and that phone call - - -?---Yes. - - - when there was the kicking at the door did – could you still hear her through the speakerphone?---Through the speakerphone and through the door. Where was your phone at the time?—[Mr A] was holding the phone at that point in time and he was sitting at the kitchen table. And where were you?---I was standing off to the side of the bench in the kitchen. And I think you told us you opened the door. Is that right?---Yes, I – when she kept saying, ‘Open the fucking door, we’re coming in anyway’, I looked at him and when he’s looked at me he said, ‘They’re gunna come in one way or another’. He sort of nodded towards the door, I opened the door and they’ve pushed past. When you say pushed past you can you just described how they did that?---Well, I’ve opened the door, Rebecca shoved open the door, walked straight – like, pushed me back because there’s like – when you go through the front door there’s a wall that sort of just blocks the front of the door. She’s pushed me there, walked straight through, straight up to [Mr A], and Bradley has come straight through the door and then, like, walked back into the kitchen. What was Bec’s body language as she pushed past you?---Well, she shoved me so I would say aggressive. What was Brad’s body language like when he came in?---Brad was walking and stood off to the side and he – yes. When they came in, was the phone still on the table?---I believe so. I can’t remember. Do you know if anyone ended that phone call while they were in the house, and if you don’t recall, that’s okay?---I don’t recall.

Ms B then gave evidence about the appearance of the intruders: I think you told police that you weren’t really focusing on the gun?---No. Did you remember what Sugi – and I know this is sort of fine detail, so if you don’t, just say so but do you remember what he was wearing at all?---I can’t remember exactly. He had a mask. He had that – they were tight pants. I can’t remember whether it was long sleeve or - - - That’s okay. With the mask, what sort of mask was it?---Just a black mask that come across his nose. Like a covid mask?---Yes. Yes. All right. Did Bec or Brad have anything covering their faces?---Can’t remember off the top of my head. I know Parlov had gloves on. I remember Rebecca had gloves on. I can’t remember whether there was anything covering their faces. What sort of gloves did she have on?---Just looked like black gloves. I want to take you to the part where [Mr A] was shot. You said that Sugi shot him and then he was fumbling with the gun again?---Yes. Do you recall what he was doing with the gun after he shot him the first time?---No, not really. I looked over and I could just see him lift it up, put it back down, lift. I was more worried just on what had just happened, yes. Do you know, or are you able to recall the gap in time between the first shot and the second shot?---Not really but it didn’t seem very long at all. When [Mr A] was shot the first time, do you remember what Bec and Brad were doing?--- Bec was standing off between the couch in the lounge room and the bench in the kitchen and Brad was standing off to the side where the chest of drawers is. Did they move?---It didn’t look like they moved. I wasn’t really focused on that. How were you feeling at that time?---Disgusted. Gutted. Petrified. Like, somebody that I was supposed to be able to look after in the confines of my home was just shot.

Ms B then gave evidence about what happened after the second shot was fired, which also included additional evidence about the moment of entry leading up to the shooting: When he was shot the second time, tell us what happened?---He grabbed his face. He’s instantly taken off for a …(inaudible)…, so around the kitchen, around the corner and into the toilet. I followed him. As I followed him, Rebecca and Bradley had started to move towards the door. I got around the corner. When I come back around from trying to get him out of the toilet, they were all gone. Do you remember – I probably should have asked this but when Sugi shot him, do you recall how he was holding the gun or you don’t recall?---I can’t say 100 per cent but I’m pretty sure he just held it up with one hand. While they were in the house, or when Sugi was in the house, did he say anything?---I think he did when he came through the door but I can’t recall what it was. Did Brad say anything?---Not from memory. Sorry, I interrupted you as you were answering that question before about if Sugi said anything?---As I said, I’m pretty sure he said something when he first came in. I can’t recall what it was. Brad didn’t say anything, and the only thing I remember Rebecca saying when she came in was,’ Are you going to pull a knife on a chick?’ When you saw Sugi come in or in the house, what was his body language like?---He came storming through the door and just raised the gun straight away. How long were they all in your house for, do you recall?---It didn’t seem like long. It – I don’t know, 10 minutes or so? I don’t know. It just did not seem like long. They came straight in, Rebecca walked straight up to Sugi – straight up to [Mr A] at the table. [Mr A]’s, as I said, grabbed the knife, taken a step back. She said, ‘Are you going to pull a knife on a chick?’ Sugi’s come through the door and that’s when [Mr A]’s taken a few steps over and stood in front of the fridge next to where I was, and that was when the first shot went off. If I can take you to the point in time as you came back from the toilet to check on – I think followed [Mr A] and you looked around and they had gone, they’d left the house. How were you feeling at that point?---Panicked. Didn’t know what to do. Somebody was about to die in my house.

After giving evidence about the aftermath of the shooting, Ms B identified screenshots of Facebook messages between her and Mr Roberts (apparently including the use of Mr Roberts’ Facebook account by Ms Parlov) in the period from 9 March 2021 to 5.19 am on 11 March 2021, again a short time before the entry to the Premises. Those screenshots were admitted into evidence, without objection, as Exhibit 20.

The Facebook messages in Exhibit 20 record messages between Ms B and Mr Roberts’ accounts from 9 March preceding the 3.15 am Bonner meeting, and then after that meeting up to and including the entry of intruders into Ms B’s home. Those Facebook messages include Mr Roberts, at 3.29 am on 11 March, insisting on meeting (again) with Mr A rather than speaking by telephone.

Those messages were as follows, with the last entries indicating that they were sent by Ms Parlov using Mr Roberts’ account: Mr Roberts: Go up near Mulligan’s flat Ms B: He said he will ring in around about 15 Mr Roberts: No ring cunt he seeing him face to face Ms B: He said yeah we just have to do something real quick Mr Roberts: Were r u going? Ms B: Kind of busy call you in a min Mr Roberts: Nah call me now Mr Roberts: Niggy wants you to call my Facebook now Ms B: I can’t Mr Roberts: Answer I’m not letting it slide so fucking answer Mr Roberts: Oi Mr Roberts: *thumbs up emoji* Mr Roberts: [Ms B] it’s bec just got to the boys my phone’s fkd call me now aye please Mr Roberts: Out of all people don’t ignore me Mr Roberts: It’s bec *missed call from Mr Roberts to Ms B*

Ms B gave evidence about the meaning of aspects of those texts. Her evidence about the last of the texts she sent, referring to “just got to the boys” was as follows: … my understanding of that was she [Ms Parlov] was already with them and she wanted me to call so that they could meet up with us at Mulligans Flat. That’s the way I interpreted that message. … Who did you understand the boys were?---Bradley Roberts and Sugi because she was always with them.

After those messages, the Facebook screenshots depict 11 unanswered calls from Mr Roberts’ account to Ms B between 4.09 am and 5.00 am, interspersed with a message after the seventh call “Fucking answer”, and followed by three successive messages from Ms B at 5.19 am: What you mean I was busy doing stuff And let what slide

At 4.54 am, Ms Parlov sent a message on her account to Ms B: Bro I learnt [lent] Bradley that money I would like it back please I just got back I’m gonna come past urs [yours]

The jury was entitled to infer by Ms Parlov’s use of Mr Roberts’ Facebook account, that had plainly enough been used by him to that point, as evidence that they were together, and Ms Parlov’s reference to “gonna come past urs [yours]” as indicating an immediate intention to go to the Premises. That was not a case of cognitive bias, but rather a contemporaneous record of a statement of immediate intention. As such, it was circumstantial evidence going to the identity of the intruders.

At 5.18 am, Ms B sent two successive texts to Ms Parlov: What you mean What you mean let what slide

At 5.34 am, Ms Parlov rang Ms B, with the Facebook entry recording a call of over 13 minutes’ duration, this call being referred to above.

Ms B’s evidence in cross-examination by Mr Mena’s trial counsel, as relevant to identification, was as follows, at this point by reference to her second police interview: …I want to take you to question 47. Now question 47 you said: He had a thing across his face. Who was that?---That was Sugi. You described the thing across the face yesterday as a black mask?---Yes. You agreed with the suggestion by the prosecutor, it looked like a COVID mask?---Yes, it’s the same shape as a COVID mask, a black material COVID mask. It was from his nose down?---Yes. You could see – could you see his eyes?---Yes, I can. Did the mask go all the way down to the chin?---Yes, it did. The next question, question 48 – sorry, question – sorry, I am just – in answer to question 47 you then said, the last sentence: And then he’s trying to reload. See that there?---I – yes, and that was because I assumed that that’s what he was doing when he put the gun down, back up and back down before reshooting. I will just go through with what you saw. Do not assume anything, just tell us what you saw?- --I seen him wielding the gun. You told the police and you have told us yesterday that you told the police the truth in that interview?---Yes, sir. I am asking what did you see when you told the police he was trying to reload?---Him fumbling with the gun. Well what is [fumbling]? We were not there so tell us what was he doing with the gun that led you to describe him reloading the gun?---As I said, he kept putting it down, back up, down, using both hands. I don’t use weapons, I don’t use guns, so I wouldn’t know how he reloaded that, I wouldn’t know anything like that but what I seen was him moving it up and down and using both hands so from assumption, I assumed he was reloading given that there was more than one shot. You are assuming now that he was reloading?---Yes, but I’ve also said in numerous questions after that that he was just fumbling. Okay, and could you see his hands?---Yes, I could see his hands. Did he have anything on his hands?---I can’t remember. You told us that the person you know as Sugi had tattoos on his hands yesterday?---Yes, because they asked me what he looked like and where his tattoos were positioned. I was describing Sugi as the person I remember him to be. As a person you see today? MR HICKEY: No, remember him to be. … MR SABHARWAL: All right, but my question to you is this, did you see tattoos on his hands?- --I can’t remember if I seen them on his hands at that point in time. There was a lot going on and somebody had been shot standing a metre away from me. I see. How long did the – it take from the moment three people arrive at your place and them leaving?---As I said yesterday, I'm unsure on the timeframe but it did not seem like very long. Minutes?---I can't remember. Like, I would be having a guess and you want me to be telling the truth. I just want to go back to when you described the shooter reloading. Do you mean he was trying to put more bullets in the gun?---Well that's what reloading means. That's what I assumed he was doing at that point in time. As I said, I am unsure. I don't play with guns, I don't like being around guns, so I don't know but he was fumbling with two hands around the gun moving it back up and back down before he shot again. You certainly did not see the shooter with gloves on his hands?---I can't remember. I see, and you can't tell us whether the shooter had anything on his hands?---Well I can't remember. You have told the police that you remember Rebecca Parlov wearing gloves?---Yes, because she shoved me as she walked through the door. But not – you did not - - -?---Pardon? But not the shooter. You can't say anything about his hands?---I can't remember it because when Rebecca Parlov walked through the door and went straight up to [Mr A] and [Mr A]’s moved back on the table with the knife in his hand, I'm sorry, my head wasn't exactly thinking completely clearly and after he got shot the first time, because I didn't even see Sugi, he rushed through the door. He stood right in front of the wall. He's like one shot into [Mr A], [Mr A] spun around, hit the front of the fridge and then he's bleeding so I'm sorry my head was not a hundred per cent with it to see what people were wearing. Did you say the person you now call Sugi went past, you did not see him?---No. I said I didn't really see what he was wearing. He's rushed through the door. [Mr A]'s moved over to me. I watched him move over to me as he's rushed through the door so I looked at him and then I looked back. He's raised his hand. He shot [Mr A]. [Mr A] turned around, hit the fridge and so my mind wasn't exactly clear to make note of what sort of clothes and everything, everybody was wearing at that point in time. When did you notice that he had a mask on?---When he came through the door. You saw that?---When he rushed in. You saw that?---Yes, I did. You are sure he had a mask on?---Yes, I'm a hundred per cent that he had a mask on. The incident you've just described what happened at your house, that only took seconds, didn't it?---It wasn't long at all. Seconds, maybe a minute?---Yes, something like that. … MR SABHARWAL: You remember being asked by the police how many times you had met Bradley Roberts?---Yes. Do you remember what you said?---A handful of times. A handful of times?---Yes. What about Mr Mena?---Around the same. I think I met him a few more times than I met with Bradley. Would you agree with me that you have said that you had seen Mr Mena a fewer than the occasions you saw Bradley Roberts?---I can't remember. Can't remember now? You told us yesterday that you had seen him in the company of Ms Parlov?---Yes, that's the only times that I have seen him. I take it you had no interaction with him on those occasions?---Yes, I did interact with him. I spoke to both him and Bec whenever they were together. On what, fewer than a handful of occasions?---Yes. I only met both of them a few times. I hadn't had much to do with Bradley or Sugi that much and they ...(inaudible)... So for instance, you don't have Mr Mena's – sorry, before I pass on, you've seen Sugi less times than Mr Roberts?---Yes, probably. I don't – I can't remember the – I only met them a few times, both of them. Like, you don't have his contact number for instance? That's Mr Mena's?---No, not Sugi's phone number, no. You said to the police that you believed he was on your Facebook but you'd never engage with him?---Probably, yes. You really hadn't much to do with Mr Mena, had you?---No. I haven't had much to do with him or Bradley, I've said that. But you agree with me that you had no contact with him by phone or any other way?---No. When you nominate Sugi Mena as the shooter, you don't want to concede that you may be mistaken?---Given that Bradley said that he was contacting Sugi and Rebecca to have them come and talk to [Mr A] and given that he met the size, the skin tone, and I've seen him in a mask before, I don't believe that I was mistaken. You didn't tell the police anything about his skin colour, the person who came to your house that – I'm asking about the person who was the shooter?---Which is Sugi. You didn't tell the police that the Sugi you know with tattoos was the person in your house that morning? … MR SABHARWAL: I'm asking you to describe the person you nominated as Sugi, whether that person had the tattoos that you've told us about that morning?---Tattoos on neck, yes. Did you tell the police that?---I described Sugi to the police. I told them who came into the house. I'm not sure what you're trying to ask. I'm asking you to describe the person that came to your house, not his name? Do you follow the question?---Okay. So he was – he was tall, well, normal size, muscly, like smaller build muscly, tattoos on the neck, dark skin, darker hair. This description you've thought about since giving the two interviews to the police?---No. … MR SABHARWAL: Do you understand my question, [Ms B]?---Yes. And as I described, he was normal height, a bit bigger than me, I'm quite short. He was skinnier build but muscly. He had tattoos on his neck. Dark skin. Dark hair. Tight pants. You saw all that in that short period of time on the morning of 11 March 2021, is that what you're saying?---I seen the person who came through the door. He – yes, I've seen that. And you saw tattoos that morning on him?---On the bottom half of his head. You saw that, that morning, on the bottom side of his head?---They were dark - dark on the bottom half of his head. The mask went across like this, over his ears and from here. I can't remember if there was both sides or one. I seen - - - What about tattoos on his - - -?---Pardon? What about tattoos on his hands?---I can't remember his hands. Well, you saw him holding the gun. You saw him reload the gun. I’m asking you - - -?---And somebody had been - somebody had been shot standing right beside me. I’m sorry if I can’t accumulate every little detail. But when somebody gets shot standing right beside you, and he’s bleeding out, you don’t take it - - -

Counsel for Ms Parlov put to Ms B that she had made false accusations, including the following as a representative sample to indicate that all such allegations, unless peripheral or about engaging in drug dealing, were denied: I suggest to you, ma'am, that you did not want to tell police who actually were there that night?---How do you mean that I didn't want to tell them anything in my first statement? You did not want to say who was, in fact, at your house that night?---No, because if they can do that to somebody at my house then what are they going to do to me or my children? Well you had to blame someone, didn't you, [Ms B]?---Yes, the people who did it. I'm not about to blame somebody that didn't do something, especially when I considered them a very close friend of mine, somebody that I considered like an adopted daughter. I suggest, [Ms B], that you falsely nominated Ms Parlov?---No, I did not. You did so after having that message from Junior?---No. Effectively what you have done is latched onto his message to determine who to blame?--- That is your opinion but that is not what happened. She was someone that - - -?---And if that were the – if that was the case, then why didn't I straight out say yes to Parlov and why did I name somebody else? He didn't name the person who else was in the crew. You did not name anybody until Junior sent you that message?---I did. I said, 'Yes, Sugi did, what the fuck'. You did not name anybody until Junior sent you that message, correct?---Correct. Ms Parlov was a convenient person for you to shift the blame to, I would suggest?---How was she a convenient person for me to shift the blame to when I considered her a close friend? Well you were fearful, weren't you, of retribution from the people who actually did this? MR HICKEY: I object, your Honour. THE WITNESS: No, that is not the case at all. MR HICKEY: No, it does not - - - THE WITNESS: I do not just throw anybody under the bus. MR LEE: Just - - - MR HICKEY: No, it is okay, I withdraw it; she is answering it. MR LEE: [Ms B], if you hear someone object just pause before you answer, okay? All right. Did you tell [Mr A] to say it was Ms Parlov who was there that night?---No.

The cross-examination of Ms B by counsel for Mr Roberts was not lengthy, and was directed to possible motives to lie, and her actions in cleaning up the crime scene, otherwise relying upon the prior cross-examination by counsel for Mr Mena and Ms Parlov. It was put to Ms B that she had been reluctant to give information to police for fear of the consequences. It was squarely put, and denied, that Mr Roberts was not involved in the events on 11 March 2021.

Mr A described how frightened Ms B was as a result of Ms Parlov’s anger and her accusations that Ms B was protecting Mr A as someone accused of being a paedophile, leading up to the first two intruders entering the Premises: When [Ms B], sorry, was on the phone to Bec, can you just describe the tone of Bec's voice? Sorry, this is at the house I mean?---At the house, yes. Loud, noisy, angry, accusing her still of protecting me and why would she and that, like. Their disgust in [Ms B] because she thought - Bec thought she was right and that. Do you remember the words that she said, that you could hear?---To be honest there was that many and basically I can't remember if was - I think [Ms B] had it on loud speaker by that time. Whether it was to me or [Ms B] that - asking why would I - you don't get kicked out of a club for no reason, and that, that was one of the things that popped up and that. But I think that was to me on the phone. Yes, they were outside the door at that time. Do you remember saying this to Bec, and I'm just going to read a bit from the transcript of your interview?---Yes. And this is at Question 69, you were asked: And just tell me what happened then, you realised there was a car there?---Basically [Ms B] was trying to convince Bec that it's all bullshit, and Bec wouldn't have a bar of it and she wanted to talk to me. It's like then she took offence to what I said. I can't even remember what I said. Next minute she goes she's coming in and the next minute she did. What I want to ask you about is could you hear her say those words she's coming in?---Yes. You heard Bec say that?---No, I heard [Ms B] say, 'Bec's coming in'. What was [Ms B] like at that stage when she said that?---A nervous wreck. Nearly petrified. She was scared and that I guess you could say. Worried and that. She knew something bad was coming.

From all of this and the further evidence to follow, the jury was clearly entitled to conclude that Ms Parlov was one of the intruders, unless they had a doubt arising from the possibility that Mr A was giving deliberately false evidence. That explanation was squarely before the jury and must have been rejected by them. While this is not directly an issue on the appeal, it assists in understanding the reasoning processes available to the jury.

After Mr A gave evidence in chief about communications he had with Ms Parlov’s brother (Mr Chris Parlov, who Mr A called after the shooting and who subsequently drove Mr A to hospital), photographs taken by police of the Premises were tendered and admitted into evidence. Mr A was asked a series of questions by reference to those photographs. Questions were also asked about the intruders, noting that Mr A referred to Mr Roberts as both “Ben” and “Brad”, and that Mr A had a knife in his hand at the time the intruders entered the Premises: You told police, and this is at question 74, you said, 'Bec came in then Ben then Sugi last'?- --Yes. Can you just describe or recount to us what Bec did when she came in?---Bec come in first and stood basically where that photo is in number five, I'd say, and Brad come in next. He would have been close behind her so I probably didn't – in between them, the doorway and the column where the picture is. You are saying Bec was where that photo was in the - - -?---Basically, yes. In that column wall?---Yes, they were there, yes. Yes, and did she say anything when they – when she first came in?---She goes, 'What the fuck. [Mr A] are you going to stab a woman'. Sorry, I missed that?---What the fuck, [Mr A] are you going to stab a woman. Me being me, yes. … I just want you to describe it as best as you can her body language?---Well, yes, she thought that – she was standing there with authority we'll say. What was her facial expression like, do you recall?---Not happy. Thinks, yes, angry. Apart from saying something to you about not stabbing a woman, did say anything else?---I can't recall 100 per cent, yes. You mentioned Brad was standing next to her?---M'mm. What was his body language like?---He was – well, his body language is like he's backing Bec up 100 per cent until he seen the knife. Back up a hundred percent until he seen the knife?---Backing Bec up 100 per cent so, yes, coming in with authority with Bec I'll say. At question 163 you have said this, 'He backpeddled sort of thing. Like I think he was going to rush me but then he seen that I – but then seen that I had the knife'?---Yes. Do you remember that?---Yes. You were asked, 'What do you mean by rush?---Like rush, like run up onto me'?---Yes. What gave you the impression that he was going to do that?---His body language. Like it was like a – getting like an athlete sort of thing, getting his arms ready to come up forward and that, so on me – yes. Where was [Ms B] at this stage that Bec and Brad were there?---[Ms B] would have been standing close to me side because I put her behind me, to the side so she - - - Sorry, were you still sitting on that chair or you had stood up?---No, I was standing up.

Mr A then gave evidence in chief about the entry of the third intruder, and him being shot by that intruder, including as to his identity: … You described to police at question 75 that, after you said Sugi came last they asked you, 'What happened from there?---I got shot. Just all of a sudden out of nowhere he pulled out a gun and bam'. How much after Bec and Brad did Sugi come in the house? Like what was the difference in time?---A minute probably, if that. Like it was fairly quick. Like it was those two coming in and then it was like – he was there because, yes, I was getting ready for like I said Brad to come, rush and that and then next minute Sugi's there. Was anything else said apart from what you have told us Bec said before Sugi came in?--- Before Sugi come in, I can't remember, sorry. After you were shot the first time, how long was it between the first shot and the second shot?---Not very long, like as if you're reloading, stumble, reload, sort of thing, so between 30 seconds-a minute max probably, like - - - Where was Sugi standing when he shot you?---Basically just inside the doorway. … Where were Brad and Bec at that stage?---Just here, here and then Sugi's here. Okay, so as we are looking at that photo, you have just indicated that Bec had moved to the left side of the column, or one of them, and then someone was standing in front of the column and then there was Sugi - - -?---Basically, yes. - - - in that gap between the column and the door, yes?---Yes. All right. As Sugi was reloading, did Bec and Brad move?---I can't remember off the top of my head because I was shot and I was like, 'What the fuck?' I was shot, spun around and, yes, wasn't looking at them at that time; they're not my problem. The problem is where the gun is. You stated that – sorry. You described to police, you remember seeing in the video, how Sugi was holding the gun. I think you demonstrated about waist height?---Yes. When he shot you the second time was he still holding it at that height?---The barrel would have been facing up a little bit more for the angle to go straight in, but if you hold it down at waist height you're going to hit something guarantee, 100 per cent. So if he's smart he would have been, but - - - Just what you recall - - -?--- - - - it was focused up a little bit. Just recall what you seen and if you don't remember – so just - - -?---Yes, it was like that because it would have been just - - - You have just demonstrated tilting the barrel of the gun upwards more?---Up, yes. You reload when – yes. Afterwards you said that they bolted. Is that right?---Yes.

Mr A’s evidence in evidence in cross-examination by Mr Mena’s trial counsel as relevant to identification was as follows: Did you tell Chris Parlov Sugi shot you?---I can't remember. Well, it's an important matter, isn't it? You're identifying the shooter?---Yes. I don't know, like I don't remember if I told Chris or not. That's the thing like. I don't remember much of the conversation in the car to Chris, going to the hospital, because I was nearly falling asleep. If I suggest to you that you hadn't told Chris, would you accept that?---If you say so. Well, not because I say so, I'm asking you whether you'd accept that?---Depends if you say it or not. I don't know. I don't remember. Was it [Ms B] that you told you it was Sugi, or gave you the name Sugi?---No. Pardon?---No. I seen him come through the door. Well, where did you get the name from? Who did you get that name from?---I know him through other people. Who are these other people? Were they present at [the Premises]?---Some were, yes. Who were the other people who told you it was Sugi?---I know they didn't tell me if was Sugi that shot me. I know Sugi through other people. Who are these other people? I've asked you were they the people who were at [the Premises]?---Some are, yes. Who?---Okay, Bec Parlov was there, yes. Bradley Roberts was there, yes. [Ms B] was there, yes. And I know him through other people outside of that group. Who told you it was Sugi that shot you?---I seen him do it. Can you give a description of the person that shot you? Is the description you've given the police what you recall?---I made a mistake. Sugi isn't Sudanese. What other mistake did you make?---Being there that night. The person that shot you, did he have anything on his face?---I cannot remember. You told the police he had tracksuit pants and a hoodie?---I wasn't quite sure. It was a while ago. I don't remember until today when we're going through it all when I've been told that's what I said, I've checked the video, yes. What video did you check?---When we played it this morning. Yes, but that - - -?---My interview. That video doesn't show the person who shot you?---I know it doesn't. That's – he's asked about the tracksuit pants, yes? That's where I was referring to. What about the hoodie?---That was referring to that also in that video. [After an objection that was not pressed, the cross-examination continued] [COUNSEL]: Did the shooter have his hoodie on?---It was a while ago, I cannot - - - Yes, I understand that, but do your best?---I cannot remember. Now, do you accept when I suggested to you that [Ms B] nominated Sugi as the shooter? Told you?---I seen Sugi, I know Sugi, I know Bec, I know of Brad, okay? How many times had you seen this person before?---Sugi? Yes?---Do you mean Sugi? Yes?---I seen him around at certain places where I've been, yes. Around about. How many times?---Just say half a dozen to a dozen, yes, at different - - - Half a dozen to a dozen times?---At different places. I've seen him at [Ms B]’s twice. And did you notice anything about him then?---He's arrogant. Right, arrogant. What else?---Don't know, I didn't really get along with him or didn't think much of him. Well, when you say didn't get along did you have any interactions with him?---We had a chat up at a certain place about how he's been stabbed five times and that, so yes. And where was this place?---Gungahlin. Who had been stabbed? You?---No, Sugi. Were you there?---I wasn't where he got stabbed, no. He was telling me up at Gungahlin that he got stabbed five times. Now, you can't tell us anything about his face can you on the night of the shooting?---I can't remember. Did you see any tattoos on him?---That was a while ago. I can't remember specific details. What about the times you've seen him? You said you have seen him between six to a dozen times?---Yes. Did he have any tattoos?---Yes, he does. Where?---Neck and arms. And did you see that on the night in question?---I wasn't paying attention to his neck and arms that night. I didn't remember. Would you agree with me that from the time the shooter enters and shoots you it is, what, minutes or less than minutes?---From when he walked in? Yes?---Walked in and then he – a minute, two. Yes, why not. I can't – yes, I'm not – I wasn't watching my watch or anything. It just happened real quick so - - - And there is lots happening because there are others in the house?---There's two others in the house plus [Ms B] and myself, yes. And your attention is not on him?---First it was on Bec and Bradley because they come through first and then the third person come in with a gun. I focused my attention on that one. But did you see the gun after it was discharged or before?---What, after he shot me did I see the gun? Yes?---I seen the gun before he shot me. See, I want to suggest to you, as you have said, you are trying to protect your family from the bikies and other groups?---Yes. That you have nominated Sugi as an easy way out?---Why would you say that?

After being cross-examined by Mr Mena’s trial counsel about his involvement in drug trafficking, Mr A had it put to him again that Mr Mena was not the person who shot him: Yes?---I'm saying that I – Bradley just said in that that he was going to get Sugi and come back so me being me I – the all three hang around each other and he was saying he was going to get Sugi so, yes, I don't remember exactly his face, anything like that. Like, I don't remember what they were wearing because it was, what, over a year ago. I don't remember. My mind plays tricks sometimes, like even shuts things down because it can’t handle it. Sorry, when you say 'I don't remember' I suppose you are talking about Sugi?---I don't remember what Bec was wearing or Brad that night either. No, no, just – you said, 'I don't remember his face'?---Yes. My question is, is that Sugi?---Yes. This is the night of the shooting?---Yes. Nothing further.

Mr A’s evidence in cross-examination by counsel for Ms Parlov focused on him being less than candid about his involvement in drug trafficking that night. He was accused of lying in a largely rote manner to little effect. Mr A was also asked about his own drug use. He also described getting ready for “unwelcome visitors”.

Mr A’s evidence in cross-examination by counsel for Mr Roberts went a little further, with the key passages being as follows: The first thing that I want to ask you some questions about, [Mr A], relates to the evidence that you have given in this trial about your mind playing games?---Yes. Did you understand what I am going to ask you about?---Sort of. Well, do you agree that during this trial you have given evidence effectively that your mind plays games?---Since – yes, since the thing happened, yes. Do I understand correctly then, when I hear you say those words, that it is like your mind is playing tricks on you?---Sometimes, yes, it's with memory and when people suggest things, it makes me overthink and maybe it could be true or it could not, like I get confused. I would like to ask you some questions about that to understand what you are describing?-- -Yes. When you use these words about your mind playing games, you have just said, I think, that it is – relates to your memory and your recall, is that right?---Yes, yes. Does it lead you then, when you have that experience, to doubt the accuracy of your memory?---Yes. [A number of questions were objected to and then the cross-examination resumed] … I am asking you about the consequence that is of when your mind is playing these games and I have asked you whether, for example, you might have an experience which you are remembering something which, in fact, did not happen?---Like, people putting thoughts into my head, is that what you mean? Well is that an example? Please - - -?---Well I'll give an example. Earlier, about going to the hospital, Chris is driving me, I'm wondering if I did ask him to take the plates off but I don't remember it, things like that. When you suggest things like that it triggers like should I remember that. Like I don't remember little things like that. Like – and then I start to doubt myself whether it did or didn't happen so I get confused. Are you suggesting that it might create a false memory?---No, I've been told if I can't remember it that like 100 per cent or I'm not meant to – like not meant to, I'm – can't say 100 per cent or I can't acknowledge it sort of thing so like I can't remember so it doesn't make – if I remember, I remember. If I don't, I've just to say so. All right, and so using the example that you have just used about [the] car, is another example then that you had believed that you were in the ute on the night of the shooting when later you were told that you were in [the] car?---Yes. That would be an example of these games?---Yes. These games do apply to your recollection of the night that you were shot, is that right?--- Not quite sure how to answer that one. I remember bits and pieces of the night that happened, yes. Whether I remember every single detail of that night, no. Are there parts of that night that you have been told about but did not recall specifically?--- Yes, I don't remember making the phone calls at the hospital or texting at the hospital. I thought I just walked in and spoke to the nurse and then next minute I remember all the nurses and doctors are behind me and I passed out. [Mr A], taking into account these games that your mind can play with you, could you be mistaken then about the conversation that you have had with the person near BWS?---Brad, no, because I wanted to confront him for calling me what he did. Well do you accept that you might be wrong, that the person at the BWS was even the same person that you have named as Brad?---No, I know Brad. I've met him day or a week before at [Ms B]'s.

After an adjournment, Mr A’s evidence in cross-examination by counsel for Mr Roberts turned to his drug use and to some of the gaps in the precise detail in his evidence. He admitted to taking ice (methamphetamine) in the early hours of the morning that he was shot. He was also asked about not wanting to be a “snitch” (that is, a police informer) and the consequences of being one, suggesting that he was protecting other named people, and referred to false information he had provided about texts he had sent. He denied having lied about Mr Roberts being at the Premises.

Mr Mena’s case on mistaken identity principally rests on eight points in support of the proposition that there were features of the evidence of identification of him by Mr A and Ms B which, when considered individually or cumulatively, are said to have undermined the reliability of that identification and enlivened a real possibility of mistaken identity. If by this it is meant to suggest that each feature of the evidence going to identification must be considered in isolation and then the combined effect of it only considered after that process, this cannot be accepted. It is not the way in which the jury received the evidence, and it is not the way in which the jury could have, and most likely would have, considered it.

What matters is the overall and combined effect of all the evidence and its capacity to be accepted by the jury, relevantly here as going to the critical issue of identification. While individual aspects of the evidence going to identification can be focused upon in order to assess individual probative force, it is the cumulative effect of all the evidence that ultimately matters. As Gibbs CJ and Mason J observed in Chamberlain v The Queen [No 2] [1984] HCA 7; 153 CLR 521 at 535, in part of a passage quoted with approval by Gummow, Hayne and Crennan JJ in R v Hillier [2007] HCA 13; 228 CLR 618 at [48], footnote embedded: We have no doubt that the position is correctly stated in the following passage in Reg. v. Beble [[1979] Qd R 278, at p. 289], that “It is not the law that a jury should examine separately each item of evidence adduced by the prosecution, apply the onus of proof beyond reasonable doubt as to that evidence and reject if they are not so satisfied”. At the end of the trial the jury must consider all the evidence, and in doing so they may find that one piece of evidence resolves their doubts as to another. … the quality of evidence of identification may be poor, but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness “separately in, so to speak, a hermetically sealed compartment”; they should consider the accumulation of the evidence …

Mr Mena also relies upon the uncontroversial point particular to identification evidence that two unsatisfactory identifications, especially when not independent, cannot be accumulated to produce, in effect, a satisfactory identification case overall. This is in one sense a precautionary application of the principle re-stated in Chamberlain and endorsed in Hillier. However, that point is not reached in this case, because a careful analysis of the identification evidence of each of Mr A and Ms B, and the various challenges to each, does not support the argument that they were not, in the relevant sense, independent of one another, or that the identification evidence of either of them was so inherently unsatisfactory as to engage that precautionary principle. The jury was entitled to have regard to the cumulative effect of the evidence, without regard to distracting notions of corroboration which were not advanced by the Crown.

The first point that is taken by Mr Mena is that the shooter’s face was covered by a mask, described by Ms B as a “COVID mask”, such that Mr A and Ms B were each purporting to recognise Mr Mena despite not being able to see at least the lower part of his face. The important thing to note at the outset is that a COVID mask is not a complete face cover. While impeding an identification to varying degrees according to the person wearing such a mask, such as other distinctive features of that person, and the familiarity of the identifying person with the mask-wearer, it does not necessarily prevent a witness from being able to recognise someone or otherwise identify them. This takes the issue back to the evidence and its evaluation by the jury.

Mr Mena submits, in substance, that the extent of the mask was such that Ms B was deprived of a real opportunity reliably to identify him as the shooter. The problem with that argument is that her evidence was that she had seen him in such a mask before, and also that she remembered seeing tattoos below the mask that she recognised. A careful reading of Ms B’s evidence reveals that the mask did not deprive her of the reasonable capacity to recognise Mr Mena in all the circumstances.

Mr Mena submits that Mr A’s evidence was that he did not remember the face of the shooter. That is not entirely accurate. The question asked of Mr A was whether he remembered, implicitly at the time he was giving evidence rather than at the time of the events the subject of the trial, “exactly” the face of the shooter, such that the evidentiary value of the answer is very limited by reason of the question asked. Recognition is not the same as remembering “exactly” what a face looks like.

Mr Mena also submits that Mr A’s evidence was that he did not remember “anything about” the face of the shooter on the night, which relies upon a similarly defective question. Recognition is not the same as remembering “anything about” a face, whatever that might be taken to mean. Again, a careful reading of Mr A’s evidence reveals that the mask did not deprive him of the reasonable capacity to recognise Mr Mena in all the circumstances.

The second point advanced by Mr Mena is that the familiarity of Mr A and Ms B with him was limited, falling short of recognising a friend, family member or someone with whom they had been intimate. This comparator is not especially helpful. There is a spectrum of familiarity from the highest level of the kind that Mr Mena refers to, to the lowest level of identifying a complete stranger seen once only in a fleeting way. The identification evidence in this case was not at either of those extremes. The identification evidence given by Mr A and Ms B was of a degree of prior familiarity with Mr Mena, the extent and significance of which was in contest at the trial. But on no view was Mr Mena a stranger to either witness. Nor was he someone whom they had no prior opportunity to observe. Both Mr A and Ms B stated that they had met Mr Mena on more than one occasion, implicitly at times reasonably proximate to the events relevant to the trial.

Mr Mena also relies upon certain inconsistencies between the description Mr A gave in his police interview seven days after he had been shot, and his evidence before the first jury, replayed to the second jury. By way of example, Mr A first described Mr Mena as “Sudanese or something. I don’t know. Um yeah, dark”, but in cross-examination, reproduced above, Mr A stated that “I made a mistake. Sugi isn’t Sudanese.” Mr A also told the police that he had met Mr Mena “once or twice” but in cross-examination said he had met him “half a dozen to a dozen” times, stating that he was “high as a kite and on painkillers” when he gave the police that information. The rest of the asserted inconsistencies do not need to be detailed further in these reasons as, in keeping with the above example, they went to nuanced detail that was before the jury and able to be evaluated by them, rather than being of a kind that was decisive. Each of those points of asserted inconsistency or other weaknesses are taken into account by this Court as far as they go, but none of them are any substitute for considering the entirety of the identification evidence, at which point the cogency of those arguments is much less than compelling.

In a similar vein, Mr Mena’s submissions detail limits on the degree of familiarity that Ms B had with him, and criticism made of evidence that was not adduced as to the duration of prior meetings between them, a point also taken in relation to Mr A. The evidence of familiarity, in regard to both witnesses, is described as “superficial at best”. That is not a fair characterisation, and in any event such a general label tends to obscure rather than illuminate. The prior familiarity was not suggested to be only fleeting, nor only of a single prior occasion. There was enough prior contact for the jury to be able to consider the identification as being that of a person previously known to each Ms B and Mr A, albeit not especially well-known. On any view, it was not evidence of the identification of a mere stranger.

The third point advanced by Mr Mena is that the description of the shooter by each of Mr A and Ms B was “inadequate”, in the sense of being insufficient to dispel a reasonable doubt. He submits that Mr A’s description to police was “sparse” and pointed only to the clothing of the shooter, failing to mention Mr Mena’s tattoos, whether the shooter’s hood was pulled up, and the shooter’s face (a point addressed in more detail above). Of Ms B’s evidence to police, Mr Mena conceded in written submissions that she did provide a contemporaneous description of Mr Mena to police, but submits that she failed to describe her observations of the shooter to police, only doing so in more detail in cross-examination which should be given limited weight.

While it is not to be doubted that a complete and accurate description of someone being identified is going to be better and more compelling than a more fragmented account, the absence of this feature does not of itself mean that the evidence that was given is to be discounted out of existence or even serious consideration. The nature and extent of identifying features able to be articulated by a witness contributes to the weight that can be given to the identification evidence as a whole. It is not always the case that an evanescent basis for identification will necessarily be able to be expressed in the way that this point seems to suggest.

In relation to Mr A, the focus is on the relatively sparce description able to be given by him a week after being shot, shortly after coming out of his coma, while his evidence before the jury is sought to be characterised as inherently less probative. That argument serves only to reinforce the value of a jury of twelve evaluating evidence of this kind.

In relation to Ms B, while her contemporaneous description of Mr Mena given to police is acknowledged, the complaint made is that she did not describe her observations to police, and her evidence as to his appearance was limited. She is criticised for giving a fuller description in cross-examination, and concessions that she made in the course of that cross-examination are relied upon. Mr Mena submits that the greater degree of detail given in cross-examination should be given limited weight because of its context. It is not readily apparent why that is so. The nature and quality of her evidence going to identification was not, in the end, anything like as sparse as Mr Mena’s submissions suggest. Mr Mena also submits that Ms B’s capacity to make observations about various aspects of the shooter’s appearance must have been hampered by the shooter’s clothing, being a tracksuit and mask, and that it is open to conclude that her evidence was an attempt to support her identification of Mr Mena as the shooter to police at the time of the shooting. While it may have been open to the jury to question and therefore examine carefully Ms B’s evidence as to identity, this does not mean it was not open to the jury to accept her identification evidence, taken as a whole and in context.

The fourth point advanced by Mr Mena is that the opportunity that Mr A and Ms B had to observe the shooter was very brief. That is a point of greatest significance when the person being identified is a stranger to the witness. But it remains of some moment when the identification is said to be more in the nature of recognition. As the evidence extracted earlier in these reasons makes clear enough, the entry of the first two intruders, then the entry of the third, who almost immediately shot Mr A twice, took place over a relatively short period of time. But that time was still far from momentary or fleeting. Even a span of time measured in seconds, rather than split seconds, is capable of being ample time in which to recognise someone already known to a witness, even if not well known. There was no evidence that this was too short a time in which to identify the intruders, especially not by strangers. This is a good example of the importance of considering the accumulation of the evidence going to identification, and the critical role of the jury in observing the evidence as it is adduced and evaluating it.

The fifth point advanced by Mr Mena is closely allied to the fourth, namely related to the stress that Mr A and Ms B must have experienced – and which the evidence reproduced earlier in these reasons indicates clearly that they did experience. This is likely to have had a bearing on the quality of their identification evidence, but to say, as Mr Mena does, that this is likely to have adversely affected the reliability of their identification evidence is a submission to be approached with considerable caution. A witness’ reaction to stress, and its impact on the reliability of that evidence, will necessarily be individual. It is not sufficient to say that the presence of stress, or a stressful situation, should in all cases adversely affect the reliability of identification evidence given, particularly to the level of nullification.

It is a common enough experience that stress is sometimes distracting, but sometimes provides immediate grounds for focus and close attention as to what is going on. If someone is doing something extreme, it may be an occasion to focus on who is doing it. It necessarily has a bearing on the identification that was able to be made, and on the assessment of its reliability. But, once again, this is a feature to be considered in the context of the rest of the evidence. Mr Mena overstates the position when he submits that the undoubted stress of itself gives rise to real uncertainty about the accuracy of any identification of the shooter. It is an important feature, but not of standalone significance.

The sixth point advanced by Mr Mena concerns the reference in the evidence to both Mr A and Ms B having consumed methamphetamine in the hours prior to the shooting taking place. That fact was before the jury. It doubtless was a factor for the jury to take into account in assessing the witness evidence, but there was no actual evidence to give any qualitative basis for assessing the impact of that drug consumption. It may have had little or no impact on the identification evidence that was given. That was properly a matter for the jury and not something that can go very far in advancing this ground of appeal. Again, it is part of the matrix of evidence to be considered.

The seventh point advanced by Mr Mena is that Mr A and Ms B came from a different racial background to Mr Mena, and that the “difficulties which arise when a witness purports to identify a person from a different racial background were apposite here”. The sole authority cited for this sweeping proposition is a decision of the New South Wales Court of Criminal Appeal in Regina v Phuong Van Nguyen [2000] NSWCCA 285 (Kirby J, with whom Beazley JA and Greg James J agreed). That is a five-page decision on a case in which the Crown conceded that the trial judge had not given the required identification evidence direction to the jury and the sole issue for the determination of the Court was the application of the proviso. In the last sentence of [25] in Nguyen, in which the Crown concession was recorded, it was stated in relation to the direction that was given, “[s]pecifically, there was no reference to the possible dangers arising from a person of one race identifying someone from a different race”. This observation arose in the context of a witness who had bought drugs from an Asian male known to him as “Jason” on five occasions over a two-week period a year before he was asked to identify that person from a photograph, having given a description at the time that was generally consistent with the appellant. No doubt was cast on the inherent validity of that identification, but only on the direction that was given. As Meagher JA observed in R v Dodd [2002] NSWCCA 418; 135 A Crim R 32 at [31], “[t]here is nothing in what is [said in Nguyen] to suggest that it is a fixed and immutable principle that in a case of the present character it must always be assumed that there has been some danger of cross-racial identification”. In particular, the generalised concerns referred to in Nguyen carry less weight in a case such as the present, where there was prior association between the witness and the person identified.

The eighth and final point advanced by Mr Mena is an assertion of the identification evidence being tainted by cognitive or expectation bias. This point, grounded in well-established authority, relies upon the vulnerability of identification evidence to suggestion, displacement or bias, and the risk that a witness may jump to conclusions. This is essentially directed to the risk of evidence being tainted by prior knowledge held by a witness. In those circumstances a warning or a direction may be called for, as the present risk of such a taint is not an inevitability. It is an assertion that requires careful consideration and justification.

This taint is said to arise from the expectation generated by Mr Roberts at the 3.15 am Bonner meeting in the threat he made to Mr A to get Mr Mena to “whack” him. However, the evidence that some kind of action against Mr A (based upon the apparently misplaced suspicion that he was a paedophile) also comes from at least several further sources.

The first further source is in the Facebook Messenger message from Ms Parlov to Ms B soon after 3.29 am, about two hours before the shooting, which includes a reference to “just got to the boys” in the context of a text from Mr Roberts a short time earlier about Mr A and Ms B going to Mulligan’s Flat. Ms B gave the following evidence regarding the meaning of those two texts, reproduced above, which it is convenient to repeat: … my understanding of that was she [Ms Parlov] was already with them and she wanted me to call so that they could meet up with us at Mulligans Flat. That’s the way I interpreted that message. … Who did you understand the boys were?---Bradley Roberts and Sugi because she was always with them.

The second further source is in the Facebook message sent by Ms Parlov to Ms B about an hour and a half later, at 4.54 am. Again, repeating what is reproduced above, that text was: “Bro I learnt [lent] Bradley that money I would like it back please I just got back I’m gonna come past urs [yours]”. This was only half an hour before the intruders came into Ms B’s home, and was plainly enough conveying that Ms Parlov was going to come past that home. In context, it was open to conclude that the message was not confined to Ms Parlov, but included Mr Roberts and Mr Mena.

The third further source is the Facebook call from Ms Parlov to Ms B which commenced at 5.34 am and continued when the intruders entered Ms B’s home, with Ms B’s end of the call being on speaker phone.

When the totality of this evidence is considered, the suggestion that the evidence of Mr A and Ms B was merely an issue of suggestion, displacement, bias, or the risk that a witness may jump to conclusions has a surreal quality to it. It is not in doubt that both Mr A and Ms B were in fear of an adverse visit from Ms Parlov, Mr Roberts and Mr Mena. The evidence before the jury supported the conclusion that the visit was deliberate, if not planned significantly ahead of time, and that the intruders were far from random or chance visitors. The suggestion that, by unhappy coincidence, someone else carried out this attack in the midst of a dispute about whether or not Mr A was a paedophile has an element of unreality. It follows that the problem with this argument is that the argument for suggestion, displacement, bias or jumping to conclusions was considerably weaker than the argument that the shooting of Mr A was the result of a somewhat planned attack, albeit not long in the planning. This was properly a matter for the jury, rather than being any sound basis for casting doubt on the reliability of the identification evidence to the point of the jury not being entitled to place reliance upon it.

Three remaining arguments advanced in support of this ground remain to be considered: (a) The relevance of multiple identifications. (b) The doubt sought to be cast on the circumstantial evidence supporting the identification of Mr Mena and Mr Roberts. (c) The asserted reasonable possibility that someone else was the shooter. The relevance of multiple identifications

This has already been addressed to an extent and falls to be considered in light of the principles to be applied in relation to identification evidence considered earlier in these reasons, and in particular Warne at [49]: We do not read Burchielli as authority for any blanket proposition that multiple sources of identification evidence cannot support each other and juries must be directed accordingly. Provided the identifications agree with and are independent of each other (an issue we consider below) and the witnesses are honest, it seems to us that it must be at least possible for each identification to make the others more likely to be correct. The point, in our view, is that the presentation of several identifications which concur with each other must not be allowed to distract from the infirmities that one or all of them are likely to have. Attention needs to be paid to each witness’s credibility and the circumstances in which they made the identification of the accused.

Mr Mena submits that the identification evidence of Mr A and Ms B is rationally unable to strengthen one another, for two reasons.

First, Mr Mena contends that the cumulative effect of the features of the identification evidence of both witnesses relied upon and addressed above deprived that evidence of both of their cogency, such that it was unsafe to rely on either identification to find that Mr Mena was the shooter. In light of the analysis above, that argument cannot be accepted. Their direct evidence, in combination with the supporting evidence from each of them and from other sources, made the identification evidence well able to be acted upon by the jury. The jury was not required to be called upon to assess the identification evidence in the desiccated way that Mr Mena suggests.

Secondly, Mr Mena contends that the identifications reached by Mr A and Ms B were not reached independently, largely because it is said that they were contaminated by the same source, again relying upon the 3.15 am Bonner meeting where both of Mr A and Ms B heard Mr Roberts say that he would “get Sugi”. Mr Mena suggests that Mr A and Ms B appeared to have discussed this and jointly reached the conclusion that Mr Mena was in the company of Ms Parlov that night (which he in fact had been, on the now uncontested evidence of Constable Bigmore seeing them together at about 8.00 pm on 10 March 2021), characterising this as contamination. Apart from this being but one part of the evidence, supporting the conclusion that Mr Mena and Ms Parlov had been together not just the previous night but also in the period within two hours of the shooting, it is a misdescription to characterise these circumstances as either a lack of independence, or as contaminating the evidence, as opposed to being part of the matrix of evidence before the jury. While these circumstances were capable of supporting a submission that the reliability of the witness’ identification evidence may have been in some way adversely affected by their having an anticipation of who they might see, it was also capable of supporting an inference that they were more likely to be looking more closely at who appeared not as a matter of confirmation bias, but as a matter of actual confirmation.

The submission apparently made by Mr Mena and adopted by Mr Roberts, to the effect that it was unsafe to allow the jury to rely upon the identification evidence of either Mr A or Ms B, or both of them cannot be accepted. The jury was entitled to regard the two sets of identification evidence as being sufficiently independent to be able to support one another.

As already noted, the evidence giving rise to anticipation of a possible confrontation with Mr Mena, Ms Parlov and Mr Roberts cuts both ways, at least in this case. While that anticipation of confrontation does introduce the possibility of a mistake, it is also capable of rendering the identification objectively better supported, and making it more likely that they were the intruders. That was a feature that the jury was entitled to regard as reducing the risk of mistaken identification. This highlights the importance already mentioned by reference to Hillier and Chamberlain of the jury having regard to all of the evidence. In particular, the contact and communications, including those recorded in the Facebook screenshots, were important contextual evidence in which to consider the direct identification evidence. Taken as a whole, the jury was entitled to act upon the critical identification evidence of Mr A and Ms B.

The jury’s verdict, including, in particular, as to identification, is based on a stronger case when regard is had to the totality of the evidence, rendering a mistaken identity less likely. While the Crown’s description of any other possibility being required to be considered by the jury as fanciful is something of an overstatement, the exculpatory alternative presented of some other person being responsible was a considerably weaker possibility, and the jury was fully entitled not to regard that as a real possibility in all the circumstances.

The jury could have been in no doubt that there was a live issue as to the possible effect of drug use on the reliability of the identification evidence that was given. The key question raised by this aspect of this appeal ground is whether this aspect of the defence address was in some way undermined by the direction from the trial judge in the course of summing up, or whether it was reinforced as far as it went.

The trial judge directed the jury as follows (emphasis added to the sentence objected to at the time and now on appeal): The next question is whether drug use affects the reliability of the identifications. You need to consider the evidence of both [Mr A] and [Ms B] that they had ingested, one way or another, methamphetamine in the hours prior to the incident. There was no expert evidence as to the effect of methamphetamine on identification, on the capacity to make an identification. However, you may have regard to what the witnesses said about their state of mind and whether or not any admitted difficulties with recollection were as a result of drug use in a way that affects the reliability of the identifications.

In the absence of the jury, trial counsel for Mr Mena expressed concern about that aspect of the identification direction, twice, during a time specifically allowed by the trial judge for such submissions to be made.

The first submission was: MR HOWELL: Just two more issues. One is that when your Honour got to the issue about the capacity of the drug affectation and the potential for that to affect each witness' capacity to observe, your Honour made a comment that, 'Of course, there is no expert evidence on that.' HIS HONOUR: Yes. MR HOWELL: It suggests, with respect, that there was a need for that and that that should not, in my respectful submission, have been said because the direction - just coming back to the point, the direction is designed to identify for the jury factors which may make the identification evidence unreliable. Possible drug or alcohol affectation is one such factor. The point about the direction is to point that out to the jury as a factor that may make it unreliable, but this whole area of identification evidence - there is a whole body of expertise out there in the world, outside of these proceedings, that could be brought to bear on the issue of the reliability of identification evidence generally and the factors that may affect its reliability, but ordinarily a jury in a trial is not assisted with educative evidence of that type. It is the direction that is relied on in order to guard against miscarriages of justice on convictions for identification evidence, so to isolate one issue that is an issue taken by all accused that all accused say may affect the reliability of the evidence but then to neutralise it by saying there is no expert evidence on the point has the tendency to undermine it as an issue and also, to indirectly raise, well, who would have, in the trial, needed to present expert evidence on that point? The Crown didn't do it. I will just need to think about that too in terms of what I ask your Honour to say, if anything.

The second submission was: MR HOWELL: Then just further, on the comment that was made about the absence of expert evidence on the capacity of methamphetamine to affect the witness' capacity to observe, can I respectfully ask your Honour to give them a direction that when you referred to expert evidence in that context you misspoke and they’re to disregard that aspect of the direction, and then to say to them something to the effect that, 'The risk that each witness' possible drug affectation may affect the reliability of their identification of the accused is a matter that you need to consider in the context of the approach to that evidence being an approach with special caution.' I don’t ask your Honour to give any further direction about Constable Bigmore. HIS HONOUR: I'll just indicate what I'm going to do. In relation to the distinctive features point raised by Mr Howell, I am going to address the point that he indicated but also the point that Mr Hickey identified, namely that at the time of the police interviews the witnesses were not asked clearly to describe what they had seen as opposed to describing the person that they had recognised.

In relation to the second submission, it should be noted that the trial judge made several references to the need for special caution in assessing the reliability of the identification evidence, before turning to specific reasons for that caution, including the effects of drug ingestion.

The trial judge agreed to redirect on several other issues raised, but declined to redirect on this topic, about which his Honour said: I’m not going to say anything else about drug affectation. It appears to me to be an issue which should be left as it is, namely that it’s a matter they need to consider.

Mr Mena contends that the trial judge erred in highlighting to the jury the absence of expert evidence as to the effect of using methamphetamine on the reliability of the identification evidence that had been given, pointing to the evidence that had been given by both Mr A and Ms B admitting to consuming that drug a short time before the shooting. Particular reference is made by Mr Mena to Mr A’s evidence that he was “off his head” in the early hours of 11 March 2021, which is referred to in the address by his trial counsel reproduced above. Mr Mena submits that it was not for him to prove that the recollections of Mr A and Ms B were not affected by drug use, but for the Crown to disprove this. It is doubtful that the Crown needed to prove anything as specific as this, but in context the impugned direction that was given was likely to have been understood as pointing to the Crown not having adduced any evidence to dispel that possibility, a point developed further below.

Mr Mena further submits that in the circumstances it is to be expected that the trial judge would direct the jury that drug use and affectation were matters that warranted special caution in the circumstances of the identification in this case. This submission itself calls for some caution, given that the argument advanced does not include seeking leave to go beyond the submissions made at the trial on this topic. In any event, the trial judge’s references to drug use and affectation were in the context of the directions on identification being all about special caution. Certainly, no complaint was made to the contrary.

Mr Mena submits that the effect of the direction given by the trial judge was to undermine, rather than endorse, trial counsel’s submissions on this topic, and specifically linking the effect of the drug affectation on the accuracy of the identification, which is said to have implicitly signalled to the jury that the weight to be afforded to this feature of unreliability should be qualified. Mr Mena submits that this enlivened the possibility, contrary to the onus of proof, that the jury was entitled to approach the appellant’s trial counsel’s submissions with circumspection because the defence had not adduced expert evidence about it at the trial. As already noted, it is unlikely that the jury would have understood the impugned sentence in the direction that was given as suggesting any obligation on the defence to adduce such evidence.

Mr Mena’s submissions considerably overstate the effect of the factually accurate statement that there was no expert evidence about the effects of drug use. As the only party to have adduced evidence was the Crown, and the jury was told in the conventional way that the appellants did not have to prove anything, this was likely to have been understood by the jury to have been a reference to the Crown not having adduced any such evidence, in context, to establish the effects of drug use.

What the trial judge said ensured that the jury was properly focusing on its assessment of the evidence that was before it, rather than speculating on matters that were not the subject of evidence. On a fair reading of the transcript and in the context of all the directions that were given, it cannot be accepted that this direction undermined or neutralised the defence submissions on this topic, as opposed to encouraging the jury to focus on the evidence that was before them as to identification, including the evidence about drug use by the witnesses giving that evidence, and in particular this aspect of the defence case. His Honour specifically directed that the jury may have regard to what the witnesses – that is, Mr A and Ms B – said about their state of mind, and whether or not any admitted difficulties with recollection were as a result of drug use, being the very point that had been made by counsel as reproduced above.

As the Crown points out, as well as accurately reflecting the state of the evidence, the impugned sentence reflected the fact that the effect of the use of drugs on the ability of a witness to recall or observe events is not a matter of common knowledge or experience. There was evidence from Mr A that he was “off his face”, and Ms B had given evidence of drug consumption earlier that morning, which was squarely brought to the attention of the jury in addresses, including as reproduced above. This was plainly and properly a matter for the jury to take into account as a part of the assessment of the identification evidence. Fairly read, the trial judge was reinforcing those and other like submissions.

Even if, contrary to the reasoning above, the reference to the absence of expert evidence was something that need not, or should not, have been said, upon a proper and thorough appreciation of the totality of the summing up and the identification directions given, this could not reasonably have occasioned any miscarriage of justice, especially in light of what was said immediately after the impugned sentence. This sentence had no real chance of affecting the jury’s verdict in the causal sense of that being a significant possibility or a perceptible or substantial risk: see Hofer v The Queen [2021] HCA 36; 274 CLR 351 at [118]-[123] (Gageler J), see also [47] (Kiefel CJ, Keane and Gleeson JJ).

Trial counsel then posed, as he had foreshadowed, a series of questions evidently designed to point to the relative weakness of the identification case against Mr Mena. These included what Mr A had told police about what he saw of the person who shot him, as opposed to the name and appearance of Mr Mena, Mr A’s prior level or degree of familiarity with Mr Mena, the drug affectation issue addressed above, the period of time in which Mr A had to observe the shooter (including the shorter time that the shooter was at the Premises), the delay in arresting Mr Mena, the indications, albeit rather weak, that there were others with a motivation to shoot Mr A including by way of retribution, the fact that Mr A had been shot and seriously injured and the subsequent trauma, hospitalisation and induced coma. Similar submissions were made about Ms B’s evidence against Mr Mena. He described the “possibility, just the possibility” that the shooting may have been organised by a person called Thor, or others associated with him, and/or that this had involved the assistance of Ms B but was never really investigated, suggesting that once Mr Mena was named by Mr A, all other possible lines of inquiry seemed to stop.

Trial counsel then turned to the issue that Mr Mena now contends should have been the subject of a direction to the jury, despite such a direction not being sought by the methodical trial counsel appearing for him, namely, in substance, cognitive bias, whilst being apparently careful not to use the word “cognitive”, and in fact developing this argument in a way that was more nuanced and less simplistic than the complaint presently made: To bring this together, the last topic, is there some bias here, some bias that might impact on what this aim, if they’re not lying. This is all on the assumption that they’re not lying. Then what might account for the apparent readiness of both [Mr A] and [Ms B] to assert that the shooter was Mr Mena if neither of them - if neither of them, when properly analysed, were really in a position, it would seem on the evidence, to positively identify the person who shot [Mr A] then why do they both name Mr Mena as the shooter in [Ms B’s] case on the night to [J]unior in the message, and in [Mr A]’s case in his interview on 18 March. Was anything said or known by the witnesses which might have impacted on their perceptions of who the shooter was. Well, the first point to note is that he was known to both of them through Ms Parlov. I’ve made that point already. The second thing to note is that he was mentioned to them on the night by Mr Roberts, if you accept that that took place. The conversation in the car park outside Woolworths at Bonner earlier in the night, the meeting with Mr Roberts, both witnesses gave evidence about this conversation, the conversation where Mr Roberts, on the Crown case, spoke about Sugi behind his back.

This theme was then developed over the next several pages of transcript, including the following: If she recognised Ms Parlov, can I just respectfully suggest that it is understandable why she may have jumped to the conclusion that she did in that message in light of the conversation that had been had outside Woolworths at Bonner earlier in the night. Just giving these two people the benefit of the doubt for a minute, you might think that both of them have relied on that conversation in the Woolworths car park to piece together who the shooter may have been to make sense of what happened. Any one of the factors that I have been speaking to you about that go to this separate question of accuracy, the possibility of mistake, any one of these circumstances may possibly lead to a mistake being made. The brief period of observation, what the witnesses were focused on during the incident, the fact that the witnesses were under pressure and stress at the time of their observations and that there was a lot going on, the fact that they may have been drug affected, the fact that they are purporting to identify a person from a different racial background, the fact that neither of them were especially familiar with Mr Mena, the person, and the fact that both of them had things said to them or knew things about that man's association in particular with Ms Parlov that may well have affected the way that they made sense of the after it had taken place.

This aspect of the argument culminated with the following: You’ve been told that in some way, the Crown case is strengthened by there being two people that have given the same identification evidence. Well, you’ll be told that this doesn’t necessarily mean that there’s less chance of a mistake having been made. Two or more honest witnesses can be just as mistaken as one. It is a matter of particular and recurring concern that cases of mistaken multiple eyewitness misidentifications are not uncommon. It’s what’s referred to as the relative judgment problem which put shortly means that more than one witness in the same case may wrongly identify the accused because he is the one that, when you bring it all together, both of them have come to the same conclusion for the same flawed reasons, the same reasons that I’ve been speaking about, including some that were shared. The possibility of distortion, the possibility of conversations with one another, other factors. Can I just respectfully encourage you to not aggregate the evidence of the two; analyse it. Consider the possibility of mistake. If each witness’s evidence of the identification of Mr Mena is flawed for the reasons that I’ve been speaking about then they don’t strengthen one another. Two unsatisfactory identifications do not support one another. If you can’t accept the evidence of [Mr A] and [Ms B] that purport to identify him as the shooter is accurate, putting aside the separate question of honesty that you will consider, then it follows that the Crown will not have satisfied you beyond reasonable doubt of his guilty.

Trial counsel then made three points about weaknesses in the Crown case in relation to communications evidence, pointing to a lack of any evidence of any communications with Mr Mena, the lack of any evidence being found at his home by search warrant, and the DNA evidence found on a fired cartridge being excluded as coming from him.

The trial judge directed the jury about the evidence of the 3.15 am Bonner meeting conversation between Mr Roberts and Mr A: While I'm dealing with the evidence of what occurred at the Bonner shops, I need to say something about a particular aspect of the evidence. One of the things that [Mr A] and [Ms B] said that Mr Roberts said was about going to get Sugi or going to get Sugi and Rebecca. [Ms B] said: Brad tried to call Rebecca and Sugi and he said, 'Go up and wait around the corner and we’ll get Bec and Sugi to come down.' [Mr A]'s evidence was: Yes, basically because I'd said that I'd play, well, as some would say, we’ll whack on and that, and he said, 'Well, wait up. We’ll go get Sugi and that and we’ll come back and whack you.' If you find that he did make the statement about going to get Sugi or Sugi and Bec, then I need to explain how this evidence can and cannot be used. You can't use that evidence directly to reach the conclusion that he went to get Sugi and then went to whack [Mr A], however, you are entitled to use that evidence as evidence of Mr Roberts' state of mind or intention at the time that he made that statement. You would be entitled to reason that if he had that intention when he made that statement, then it makes it more likely that is what he subsequently did. In other words, his state of mind at the time of the meeting in Bonner car park makes it more likely that he subsequently went to get Sugi and/or Bec. You are not entitled to treat it as direct evidence of what occurred and only entitled to use it in the indirect way that I've indicated. By drawing your attention to this issue I'm not intending to express any view myself on the issue, simply attempting to explain to you the way in which this particular aspect of the evidence may and may not be used.

This direction had the effect of confining this conversation to the case against Mr Roberts. The direction now said to have been required, while ostensibly focusing on the reasoning processes of Mr A, would also likely have detracted from the direction that was beneficial to Mr Mena. Trial counsel sought a number of redirections, but one on this topic was not among them. It is understandable that a decision was made not to take that course.

It is readily apparent that a direction of the kind now said to be required could reasonably have been regarded also as detracting from the overall force of the defence case as put to the jury, by isolating one feature from a mosaic of submissions relied upon which, while introduced as being in part a question of bias, was developed in a more nuanced and interrelated way. It is not fair to trial counsel to view the lack of seeking a direction or redirection to this effect as having been an oversight or worse, as opposed to the product of a careful forensic strategy that might well have been successful. An appeal court should be slow to intervene in circumstances as stark as this.

Rule 5531 of the Court Procedure Rules provides: 5531 Appeals to Court of Appeal—grounds of appeal against conviction or sentence Unless the Court of Appeal otherwise orders, the following must not be allowed as a ground for appeal against conviction or sentence unless objection was taken at the trial by the party appealing: (a) a direction given by the trial judge; (b) the trial judge’s failure to give a direction; (c) the trial judge’s decision about the admission or rejection of evidence. Note Pt 6.2 (Applications in proceedings) applies to an application for an order otherwise ordering.

As already noted, it is common ground that leave to appeal is required. Such leave is not lightly given. To the contrary, the stringent approach to the grant of leave was repeated and thereby reinforced relatively recently by this Court in Marshall v The King [2023] ACTCA 11 (Mossop, Loukas-Karlsson, and Abraham JJ): 25. Reliance on a point not raised below requires an appellant to demonstrate a miscarriage of justice. This Court takes a strict approach to r 5531: see BI v The Queen (No 2) [2018] ACTCA 11 at [110]-[112] (BI v The Queen); Munro v The Queen [2014] ACTCA 11 at [128]-[130]; UQ v The Queen [2019] ACTCA 23; (2019) 14 ACTLR 172 at [7]; and MZ v The Queen [2020] ACTCA 41 at [16]. 26. In Marsh v The Queen [2018] ACTCA 55, Wigney J observed at [170]-[172]: [170] The purpose of r 5531 is to prevent what is sometimes referred to as an “armchair appeal”, where counsel not involved in the trial “has sat down and gone through the whole of the transcript and [the] summing up looking for error, without reference to the manner in which the trial was conducted”: Munro v The Queen [2014] ACTCA 11 (Munro) at [128], referring to R v Mahoney [2000] NSWCCA 256; 114 A Crim R 130 at [15]. [171] In Papakosmas v The Queen [1999] HCA 37; 196 CLR 297, McHugh J made the following observations (at [72]) concerning the equivalent rule in New South Wales: There is no case for the grant of leave under r 4 unless the Court of Criminal Appeal is satisfied that the appellant has an arguable case that the trial judge has made an error of law or is satisfied that the appellant’s conviction is otherwise a miscarriage of justice. Satisfying the Court that there is an arguable case is extremely difficult where the appellant has failed to object to evidence or failed to ask for a direction concerning evidence. In such cases, the trial judge has made no error of law because he or she has not been asked for a ruling. Consequently, an appeal can only succeed if the Court of Criminal Appeal is satisfied that the admission of the evidence or the failure to give the direction has caused a miscarriage of justice, proof of which lies on the appellant. [172] In Munro, Burns J (with whom Refshauge ACJ and Penfold J agreed) made essentially the same point in relation to r 5531 (at [130]): In the present proceeding, there was no application made under r 5531 with respect to those grounds the appellant now seeks to agitate, which were not the subject of an objection at the trial. Appellants should not consider the provisions of r 5531 to be a formality which may be neglected. It is at the heart of the adversarial system that an accused chooses the manner in which his or her defence to criminal charges is conducted. Almost inevitably, this means that forensic decisions must be made on issues that arise in the course of the trial, such as objections to evidence or an objection to a direction given by the trial judge. The person best placed to make such an objection, by reason of familiarity with the basis on which the defence is being conducted and the atmosphere of the trial, is counsel for the accused. Where no such objection is taken, this Court is entitled to infer that counsel saw no unfairness or injustice in what was done.

The direction said to be lacking does not survive the description of having an armchair quality to it, divorced and isolated from the well-developed argument that was presented in closing address on behalf of Mr Mena, with no direction being sought by trial counsel as now said to be needed, nor any redirection sought. It can readily be inferred that trial counsel saw no unfairness or injustice in not having such a direction, having sought other directions and corrections, some of which were acceded to. Trial counsel was not backward in coming forward.

No miscarriage of justice has been demonstrated. Leave to raise this ground must be refused.

The primary evidence before the jury going to the threshold question of whether Ms B might reasonably be supposed to have been involved in the events giving rise to the charges before the trial court was information supplied by Mr A to Constable Sean Dobson. This evidence was adduced from Constable Dobson in cross-examination in two tranches, as follows, the first being read from the officer’s notebook and the second being from briefing notes recorded in examination notes made during the course of a forensic examination of the Premises on the day of the shooting: ‘Phone call from [Mr A] on Saturday 20 March 2021. [Mr A] stated that [Ms B] had more involvement and was set up by her. He has heard this from multiple friends and sources.’ Did I read that accurately?---That's correct. That’s your entry in your notebook?---Yes, it is. You have not recorded in any statement or notebook anything you did to investigate that information further, have you?---No. That’s the only entry. There is no other statement in the brief of evidence recording anything done by any other officer to investigate that information further, is there?---No. … Can you see a few lines down under the heading 'Briefing' there is a – the first word in that line is 'and drove the victim to the hospital', or the first couple of words?---Yes, I can see that. The next sentence reads: 'Information that 2 x males may be responsible and the female occupant may have assisted'?---Yes. And that was information that police had provided to the forensic officers as part of that briefing?---Potentially, yes. Well, you agree that is what is recorded in this forensic officer's notes?---Yes. Yes, definitely. And the female occupant of course you understood to be [Ms B]?---Yes, correct. And that was similar information which was later provided by [Mr A] on that phone call on 20 March 2021 - - -?---That's correct. - - - that she may have been involved in this?---That's correct. And, despite that, there is not a single note anywhere in your notebook about any steps taken to investigate that suggestion?---Well, I don't know where that information – or what officer that came from, so I can't have any validity behind that information there. But the question, sir, was there is no note about any investigative step that you took in relation to that information in any of your notebooks, is there?---No, there's not. Or in any statement?---No. Now, you say you don't know where that information came from - - -?---No, I don't. - - - but you accept it came from a police officer who was present at that briefing?---Yes, correct.

In re-examination, Constable Dodd’s additional evidence was as follows: Okay. Now, you were also asked some questions by my friends in particular about a conversation or a phone call that you had with [Mr A] on 20 March?---Yes. Just to orientate you, the interview with him was on 18 March?---Yes. Two days later you have this phone call with him and you had made a note, and I think my friend read it out, something to the effect that he made a comment about [Ms B] had more involvement and he was set up?---Yes. You were asked if that was a line of inquiry that you pursued?---Yes. Was it at that stage?---So all the information that we receive obviously forms part of my investigation. Yes?---If any further information comes up we always – I have that in my mind and to pursue that any further. I couldn't find anything to validate that there was any other persons involved. Did [Mr A] – was he able to indicate these other sources?---Not at all. Obviously then you spoke to [Ms B] on 30 and 31 March?---Correct. And she gave you an account of what happened?---Correct. After speaking with her, and speaking with [Mr A] from earlier when you spoke to him on the 18th, was that a line of inquiry that you were looking at that he was set up?---No. Why is that?---There was no validity behind it. I couldn't find any other persons involved, I couldn't find any other evidence to support that.

Mr A could not recall “off the top of his head” speaking to Constable Dobson and telling him that Ms B had set him up, but volunteered that there were rumours, implicitly to that effect. The questioning moved on.

In cross-examination on behalf of Mr Mena, Ms B said that she was unaware that Mr A had told Constable Dobson that she had set him up and agreed that she was hearing this for the first time. Later, in cross-examination on behalf of Ms Parlov, Ms B denied that she was involved at all in setting up what happened at the Premises, saying that she had spoken to Mr A about him being accused of being a paedophile, that Mr A had indicated he was going to get someone else to go with him to meet up with them, and that she told him not to.

Mr Mena asserts that there was circumstantial evidence which strengthened the inference that Ms B might reasonably be supposed to have been criminally concerned in setting up Mr A. Mr Mena relied upon her cleaning up the crime scene immediately after the shooting and later pleading guilty to an offence of concealing or destroying evidence with the intention of influencing a decision about starting a legal proceeding, as set out in agreed facts that were before the jury.

Citing in particular Kanaan & Ors v Regina [2006] NSWCCA 109 at [165] and Blair v R [2022] NSWCCA 176 at [69], Mr Mena submits that: (a) The trial judge appeared implicitly to accept that there was some evidence from which it might reasonably be supposed that Ms B was involved in setting up Mr A, being the threshold question. (b) The identity of the asserted true offenders with whom she purportedly conspired was immaterial to either the threshold question or the content of the direction. (c) The purposes of the warning would be to convey to the jury that Ms B had a motive to construct a false version of events, may have felt that she had locked herself into that version, was peculiarly equipped by her inside knowledge of the crime to convince the jury that her lies were the truth, which may lead the jury to give her evidence undue weight, and had received a reduction in sentence by reason of undertaking to give evidence. (d) These circumstances meant that the directions sought were therefore required to ensure that her evidence was approached by the jury with this additional element of caution. (e) Contrary to the trial judge’s reasons for not giving the direction, it was not necessary to tell the jury as part of the direction that the accused before them might not be involved in the offence, or to comment on the identity of the true offenders. (f) As a consequence, the trial judge’s finding that the direction would assume facts which would require a verdict of not guilty was erroneous. (g) The trial judge’s refusal to give the direction was an error which should result in the convictions being quashed and remittal for a retrial.

It cannot be accepted that the trial judge implicitly accepted that there was some evidence reaching the threshold in s 165(1)(d). His Honour’s reasons should be taken at face value and no further. His Honour’s reasons do not go that far.

Each of the remaining propositions advanced need to be considered in light of the interpretation given to s 165 in R v Fowler [2003] NSWCCA 321; 151 A Crim R 166 at [184] (Tobias JA, James and Howie JJ), and endorsed in Agius v R [2015] NSWCCA 200; 252 A Crim R 538 at [1023] (Bathurst CJ, with whom RA Hulme and Bellew JJ agreed). The Court in Fowler at [184] said: The purpose of the section is to ensure that the jury is alive to any factor that might adversely affect the weight to be given to evidence before them. If there is a real possibility that, without an appropriate warning from the trial judge, the jury might not identify such a factor or might not appreciate its importance or might in some other way be misled about the weight to be given to the evidence, a warning should be given. The risk of unreliability might arise for various reasons: the evidence is of a certain kind (such as hearsay evidence); the witness is of a certain class (such as a person implicated in the offence); the evidence might be affected by some personal characteristic of the witness (such as age); or the witness may be honestly mistaken (such as in identification evidence).

The Crown characterises the evidence that suggests that Ms B was criminally concerned in the events as at best speculative, and at worst fanciful. A better way to describe it is that it is itself so unreliable as to fail to meet the threshold in s 165(1)(d). It does not rise to the level of constituting a reasonable basis for a supposition that Ms B was criminally concerned in the home invasion that took place, being the minimum required. In any event, that evidence and the unsourced rumour upon which it is based does not give rise to any real possibility that, without such a direction, the jury might not identify this factor, or might not appreciate its importance, or might in some way be misled about the weight to be given to Ms B’s evidence. This is enough for this ground to fail.

In any event, as the Crown points out, there were a number of distinct reasons for not giving such a direction as to the unreliability of Ms B’s evidence on this basis: (a) The credibility of Ms B was a central issue, with this more speculative basis being squarely before the jury, such that the jury could not have been in any doubt as to the spectrum of reasons, including more substantial reasons, why her evidence could be regarded as unreliable. (b) The jury was fully aware of Ms B having cleaned up the crime scene and having been prosecuted, convicted and sentenced for having done so. (c) The direction said to be necessary ran counter to the central issue in the trial as to identification, whether as to false identification or mistaken identification. It involved an assumption that the accused were not involved, which was the central issue in the trial.

No error on the part of the trial judge has been established. This ground must fail.

The application was heard by Norrish AJ on 24 May 2022. His Honour made orders that day, and published a judgment the next day, deciding that Ms B was a complainant (as a complainant to the aggravated burglary) and that the two interviews were audiovisual recordings. His Honour deferred making orders as to admissibility under s 52 of the EMPA and any provisions of the Evidence Act: R v Parlov; R v Mena; R v Roberts. This allowed time for the recordings to be edited. The edited recordings were played as Ms B’s evidence in chief at the second trial, and marked for identification. Transcripts of each interview were also marked for identification.

This appeal ground is confined to challenging the determination that the two interview recordings relied upon as edited were audiovisual recordings for the purposes of s 51 of the EMPA, which provides as follows (legislative note omitted): 51 Meaning of audiovisual recording—div 4.3.3 (1) For this division, an audiovisual recording is an audiovisual recording that is of a witness in a relevant proceeding answering questions of a prescribed person in relation to the investigation of an offence the subject of the proceeding. (2) The audiovisual recording must include the following: (a) the date when, and the place where, the recording was made; (b) the times when the recording started and ended; (c) the times when any break in questioning started and ended, and the reason for the break; (d) the name of each person present during any part of the recording; (e) for each person present during any part of the recording—the part when the person was present. (3) The audiovisual recording must— (a) be certified by a prescribed person as an accurate record of the witness answering the questions; and (b) not be edited or changed, unless the court hearing the relevant proceeding in which the recording is tendered otherwise orders.

In relation to the phrase in s 51(1) as to whether the questions asked by the police officer, who was a prescribed person, were “in relation to the investigation of an offence the subject of the proceeding”, Norrish AJ observed in the consideration part of his Honour’s reasons: 35. The starting point of a consideration of these issues in this matter is a determination as to the meaning of s 51 of the Act. In the course of oral submission, I expressed some preliminary views about this matter which, in my opinion, have been confirmed on further consideration. The section should be interpreted to mean, that a relevant audio-visual recording complying otherwise with this section, particularly the provisions in s 51(2) and (3), is an audio-visual recording of an interview conducted with a person who is, at the time of the production of the recording for the proceeding, a witness in the proceeding in which the proposed audio-visual recording is to be used as evidence-in-chief, as required pursuant to s 52 of the Act and Ch 4.3 of the Act, generally. It is a provision concerned not with the timing of the interview, but the timing of the proceeding. The relevant proceeding is the proceeding arising from the filing of the indictment in this matter not any potential charge that may be laid against the interviewee, that is [Ms B], arising from the interview. 36. What is critical in the interpretation of the meaning of s 51 is understanding that the determination of whether a recording is a relevant audio-visual recording turns upon a consideration of the status of the interviewee at the time that the audio-visual recording is sought to be adduced as the evidence of that person as a witness in the trial, not at the time of the answering of questions by a prescribed person in relation to the investigation of another offence. This must be so if the relevant “proceeding” is the proceeding that follows upon the filing of the indictment. The plain language of the subsection makes this clear and it is conceded, as I understand it by the parties, that the relevant proceeding is, in fact, the proceeding relating to the filing of the indictment. The point being taken is that “relevant proceeding” for the purposes of considering the interviews should be seen to be any proceeding relating to the charging of [Ms B]. It makes no sense, nor would be practical to establish the status of the interviewee at the time of the interview because, as is usually the case, until the interview is completed, and consideration of it has been given by a relevant person or appropriate authority, it would not be known whether a person was, in fact, potentially a witness or an accused in relation to any further potential proceedings. There were no relevant proceedings on foot at the time of the interview of this particular suspect, despite the prior charging of Mr Mena. The interpretation of the section advocated by the respondents to the application, in my view, confuses the “investigation” with what is to be regarded as a “relevant proceeding”.

Norrish AJ further observed in part of [37] that s 51 is “not concerned with the circumstances that give rise [to] the conduct of the interview”.

Mr Roberts’ written submissions contesting this reasoning and the conclusion Norrish AJ reached, also addressed in oral argument, may be summarised as follows: (a) The definition of audiovisual recording contains a prerequisite that the interview is in relation to the same proceeding, and an offence which is the subject of that proceeding, with Ms B being investigated in relation to the offences she had been charged with. (b) Neither audiovisual recording was created in relation to the investigation of the offences in issue at the trial. (c) The references in ss 40 and 41 of the EMPA to an “offence proceeding” means that the boundary to a proceeding is defined by reference to its subject offence. Where the general term “proceeding” is used in the EMPA, it is done to reference multiple types of offence proceedings, with s 43 for example using the general term “the proceeding” to include family violence offence proceedings, less serious violence offence proceedings and sexual offence proceedings. Each reference to a proceeding is defined by the specific offence to which it relates. (d) This reading of the term “proceeding” throughout the EMPA is consistent with the Court Procedure Rules, which defines a “criminal proceeding” as a “proceeding against a person for an offence (whether summary or indictable)” and Pt 3A of the Victims of Crime Act 1994 (ACT), where the term is consistently defined by reference to “the offence”. This definition requires not only a direct link between the offence and the evidence, but also the alleged offender. (e) The application for Ms B’s interviews to be classified an “audiovisual recording” and used as her evidence in chief was “an attempt to rectify the unwanted outcome of investigative decisions by the police officer”, which “subverts fundamental principles of the criminal justice system” and is not what is contemplated by the EMPA. (f) The way in which the police officer conducted the investigation did not give Ms B the protections for a witness sought to be advanced though Ch 4 of the EMPA. (g) The record of an interview of a person under arrest is not a reasonable substitute for the live testimony of a witness in respect of proceedings for a different offence in the interests of justice and in protecting rights of an accused.

The submissions seeking to impugn the conclusion reached by Norrish AJ are based upon a very different complexion on the way in which s 51 should be understood as addressed by the Crown’s submissions, and consistently with the conclusion reached by Norrish AJ. Those appeal submissions in support of this ground cannot be accepted.

In R v HC [2017] ACTSC 276; 325 FLR 59, Burns J, dealing with prior equivalent provisions in the EMPA, observed in [55]: It will often be the case that a police officer conducting an audiovisually recorded interview with a complainant will not know the precise nature or details of the complaint. It follows that such a police officer will not always know whether the complaint will involve an allegation of a family violence offence or a sexual or violent offence, as those terms are defined in the EMPA.

Following the logic of that reality, the evaluation required by s 51 is to be made from the perspective of the proceeding in which the recording is sought to be relied upon, not what may have been in contemplation at the time of the recording of the interview. No proceeding which ended up in the trial was on foot at the time of the two interviews of Ms B. At the time of the interviews, it was impossible to ascertain the type of proceeding that might take place for the purpose of Pt 4.1, or whether Ms B would fall within the meaning of a “witness” eligible for the special measures in ss 42 and 43.

Section 51(1) expressly requires a determination to be made as to whether answers to questions in the recording are “in relation to the investigation of an offence the subject of a proceeding”. The phrase “in relation to” in a legislative provision is “indefinite”, but subject to any contrary indication to be derived from its context or history, “requires no more than a relationship, whether direct or indirect, between two subject matters”: O’Grady v Northern Queensland Co Ltd [1990] HCA 16; 169 CLR 356 at 376 (McHugh J, dissenting only as to the result on the facts in that case), quoted with approval by Toohey and Gummow JJ in PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Service [1995] HCA 36; 184 CLR 301 at 331, preceded by other quotes on this topic in O’Grady. Immediately after the quote from McHugh J in O’Grady, Toohey and Gummow JJ observed in PMT Partners: The connection which is required by the phrase “in relation to” is a question of degree. There must be some “association” which is “relevant” or “appropriate”. The question of the relevance or appropriateness of the connection is a question which cannot be divorced from the particular statutory context.

In the present context, the phrase “in relation to” must be understood as creating a broad criterion which captures the reality, fluidity and sometimes wide-ranging nature of police investigations and the subsequent court processes that emerge. A police interview with someone, including one already charged with an offence, will often include a prospective witness whose answers may later be found to be related in some way to issues that emerge in other charges that end up being brought to trial. A police investigation may explore a wide range of facts and circumstances in order to ascertain whether and what offences may have been committed, not necessarily confined to what may have been done by the person being interviewed or even charged. Questions at such an interview may explore offences or avenues of inquiry which may or may not reflect subsequent specific charges later brought to trial on an indictment, but remain part of the overall investigation of an offence which is ultimately pursued. The answers given to the questions that are asked may later be found to fall within the terms of s 51(1) by having the necessary relationship, noting that this is not at large, but confined by the other requirements in the EMPA which were met in this case.

Section 51(1) in terms does not require the questions answered in an interview that are later sought to be relied upon to relate only to a particular offence in the contemplation of police at that time, or directly or immediately to a specific offence that later appears on an indictment.

Police had arrested Ms B and were investigating her conduct in relation to the cleaning up of the crime scene for the offences on indictment the subject of this appeal. While the charges against Ms B were not part of the indictment, they were closely related to the offences that were on the indictment. Far from the investigation into Ms B’s conduct being mutually exclusive from the investigation into the shooting of Mr A, they were inextricably linked. Although the conventional caution was given to Ms B, and reference was made to suspicion of her having cleaned the crime scene, the questions asked by police during the interview can be seen also to be targeted at obtaining evidence about the circumstances of the shooting and the identity of the offenders.

The historical context for the EMPA, including in particular amendments that took place in 2018, suggests the EMPA has a facilitative purpose which supports a broad interpretation of s 51(1). Chapter 4, including in particular Div 4.3.3 and s 51, was introduced in its current form by the Royal Commission Criminal Justice Legislation Amendment Act 2018 (ACT). The express purpose of the amendments was to “implement a number of recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse” and to amend the EMPA, inter alia, to “harmonise” the structure and definitions within Ch 4 which “contains the Special Measures available to witnesses in proceedings”: Explanatory Statement, Royal Commission Criminal Justice Legislation Amendment Bill 2018 (ACT) at p 3.

Section 51(1) had existed in a similar form previously in s 40E, relevantly providing: (1) For this division, an audiovisual recording is an audiovisual recording that is of a witness answering questions of a prescribed person in relation to the investigation of a sexual or violent offence.

Section 40F had provided, similarly to the current s 52, for an audiovisual recording to be played and admitted as the witness’ evidence in chief in the proceeding.

These measures applied to “sexual offence proceedings” or “violent offence provisions”, which included aggravated burglary if the complainant was in the building at the time (ss 37, 38A and 40C), and extended to complainants, child witnesses or witnesses who were intellectually impaired (s 40D).

As discussed in R v PT [2013] ACTSC 20; 233 A Crim R 483 at [7]-[11] (Penfold J), these prior provisions were originally introduced into the Act in 2008 by the Sexual and Violent Offences Legislation Amendment Act 2008 (ACT). The 2008 amendments were described in the Revised Explanatory Statement, Sexual and Violent Offences Legislation Amendment Bill 2008 (ACT) at p 2 as follows: The amendments which provide special measures for the giving of evidence in court proceedings, do not affect the right to a presumption of innocence for an accused, under section 22(1) of the Human Rights Act 2004 as they are solely designed to extract the ‘best’ evidence possible from witnesses who may otherwise suffer a disadvantage, if required to give evidence without such measures. The interests of justice are served by ‘best’ evidence which is accurate, reliable, coherent and complete.

In relation to violent offences, the Revised Explanatory Statement said at p 3: Violent offences While it is generally accepted that victims of sexual assault offences should be protected from the stress and trauma associated with giving evidence and from the potential for intimidation, there has been a noticeable failure by some legislatures to recognise that victims of serious violent offences such as torture, threat to kill, and kidnapping and less serious violent offences such as wounding and stalking are also susceptible to mistreatment and re-victimisation within the criminal justice process. The amendments in the Bill recognise that victims of certain violent crimes are also deserving of being provided with protection through the use of special measures to aid the giving of evidence to realign the balance of fairness between victims and offenders.

As originally introduced, the special measure in s 40E only applied to complainants who were children or intellectually impaired adults. The way in which the extension of this, inter alia, to the admission of police interviews as evidence in chief in 2008, would operate was explained in the Revised Explanatory Statement at p 4: The recording provides a reasonable substitute for the live testimony of the witness as it continues to allow the accused, the judge and the jury to observe the visual and oral characteristics of the witness, such as their demeanour, voice and language. The court is also provided with a broad discretion to admit or reject the recording as the evidence-in-chief of the witness.

The definition of “witness” in s 40D was amended to include a “complainant” in 2016. This extended the operation of s 40D (and, later, s 51) in relevant proceedings to adult complainants who were not intellectually impaired, which was designed to implement recommendations in the Australian Law Reform Commission report, Family Violence – A National Legal Response: see Explanatory Statement, Family Violence Bill 2016 (ACT) at pp 1, 40-41.

The legislative history and context described above makes it clear that s 51, and the legislative scheme in Ch 4 more generally, is designed, as the Crown aptly puts it, “to facilitate and minimise the stress and trauma of giving evidence for certain witnesses in particular categories of criminal proceedings”, which “includes complainants of violent offences like aggravated burglary, where they were present at the time”. Referring back to the explanation for the introduction of provision for recorded police interviews to be treated as a witness’ evidence in chief, this places before a jury the witness’ “best evidence”. That is, as pointed out by Refshauge J in R v Al-Hazari (No 6) [2017] ACTSC 63 at [21], an account that is likely to have been given proximate to the alleged offence, and therefore likely “to capture the … earliest memories of the incident without the risk to that memory of multiple questioning … and the passage of time. It also significantly reduces the stress of the criminal process more generally.”

In light of the above, the Crown’s submission that the appellants’ suggested construction of s 51(1) is inconsistent with the objects and purpose of the legislative scheme must be accepted. Nothing in s 51(1) operates as a barrier to the use of a police interview that would otherwise meet the requirements of an “audiovisual recording” merely because more than one proceeding arose out of the same investigation. The distinction between different “proceedings” in ss 40 and 41 relied upon by the appellants does not provide them with the assistance they assert. The delineation of different proceedings in the EMPA does not preclude admission of certain evidence so long as it also fulfils the requirements of the legislative scheme by which admission is ultimately sought: R v HC at [60].

As the Crown also correctly points out, a consequence of the appellants’ construction, if accepted, would be that, if police are not aware of or are under a misapprehension as to the likely nature of a future proceeding that will result from an interview, and the interviewee’s role in any such proceeding, an otherwise admissible interview cannot be used in accordance with s 52. This would unduly limit the beneficial intention standing behind the legislation. It is to be expected that police will inevitably, from time to time, interview parties to an incident at a point in time where they do not – indeed, often cannot – have a full understanding of what took place, including whether any particular offence has been committed, which suspect or associated individual did what, and who in truth was a possible perpetrator, principal, accessory or even innocent bystander. The outcome the appellants posit would clearly be inconsistent with the purpose and policy of the legislative scheme.

The proper conclusion is that Norrish AJ did not err in his ruling and as a result the two interviews of Ms B were properly treated as her evidence in chief. This ground must fail.