Mitchell v R

A SUMMARY OF THE CASE

1. The following summary is taken from the judgment of the sentencing judge. [1]
2. In the early hours of 1 August 2017 a loud banging disturbed the residents of a home in Warilla. By the time three of the residents got to the front door it was straining under repeated kicks. Two male residents braced themselves against the door to prevent it from being forced open.
3. A glass pane in the door was smashed by the butt of a gun. A gloved hand came through the hole in the glass and went to open the door's latch. A resident used a hockey stick to bash the hand. It was withdrawn, only to reappear and be bashed again. The gun was then put through the hole where the glass had been. One of the residents saw that the person was a male who was wearing a balaclava and a glove. Another resident saw that the man's hand had a gold watch on its wrist above where the glove ended.
4. A "fizz" was heard and there was a lot of smoke, apparently because the gun had misfired. A shot was heard soon after, the gun having been fired from near the front steps into a bedroom window adjacent to the front door. The bullet fragments travelled through three internal walls of the home, passing over the heads of those at the front door. A car was then heard to speed away.
5. One of the residents went outside. Lying on the porch was an unfired bullet and a gold "Quicksilver" brand watch. Police arrived and the watch was seized.
6. A little over 11 hours later police stopped a car in Mangerton, a suburb about 20 minutes' drive from Warilla. The appellant was in the rear seat of the car. Two pairs of black gloves were found near him, together with a balaclava with only one hole in it.
7. The appellant was arrested. DNA profiles matching that of the appellant were found on the balaclava and one of the gloves. The major DNA profile found on the watch matched the profile of the appellant.

THE ISSUE AT THE TRIAL

1. In his opening address, counsel appearing for the appellant at his trial (who was not counsel before this Court) made it clear that there was no issue that the incident outlined did, in fact, take place, and that the sole issue was whether the Crown could establish beyond reasonable doubt that it was the appellant who committed the offences. [2]

The incident and the evidence of identification

1. In August 2017 Lisa Spiteri lived in premises at Warilla (the premises). In the early hours of 1 August, she was at the premises with her children Taylor and Taj. Also present at that time were Ms Spiteri's partner, Rod Devenish, Taylor's boyfriend, Braydon Purdy, and a friend of the family, Ian Winwood-Smith. [3]
2. Shortly after midnight, Ms Spiteri heard a bang at the front door and called out to Mr Devenish and Mr Winwood-Smith, [4] both of whom ran to the door and leant against it. [5] Ms Spiteri described the person outside using the end of a gun to smash through a glass window on the door, following which she saw a hand come through the broken glass. [6] She said that the person was wearing a black glove. [7] Although Ms Spiteri could see the person's hand and arm, she could not see their face at that point. [8]
3. Ms Spiteri gave evidence that as the hand came through the window attempting to reach around and open the deadlock, Mr Devenish picked up a hockey stick and started striking the person's knuckles. [9] She said that when struck, the person's hand would retreat following which a further attempt to open the door would be made and his hand would be struck again. This sequence was repeated more than once. [10]
4. Ms Spiteri then heard a gunshot. [11] During examination in chief, she was asked: [12] Q. Did you see who was holding the gun? A. Yes. Q. What did you see of the person who was holding the gun? A. Well his face came close up to the square window because he was lining me up. Q. I'll break that down. Which square window are you talking about? A. The door. Q. There's six there. Which one? A. The one that was broke. Q. Did you see his face or his head came up close to the window? A. Yes. Q. Which one? A. His face. Q. What could you see? A. I could see him. Q. How much of him could you see? A. Quite a bit. Q. What bits could you see? A. His eyes, his eyebrows, his cheeks, his nose and this top part of the lip. I couldn't actually see that lip, but this bit. Q. You're indicating the top lip? A. Yes. Q. Were you able to see the bottom lip? A. No. Q. Why not? A. Because he had a - it kind of came up over here, and he kept pulling it up over his mouth. HIS HONOUR Q. He had what? A. A balaclava on. …… Q. What did you see of that or what did you think it was? A. Well he looked Aboriginal but he - - Q. No, the thing on his face. A. It was a balaclava. Q. You're dropping your voice. A. Balaclava. Q. You could see his top lip but underneath that there was something that looked like a balaclava, is that right? A. Yeah. Q. Could you see other parts of the balaclava? A. You actually couldn't see his top lip, just this part. Q. You're indicating the sort of bit above the top lip - - A. Yes. Q. - - between the nose and the top lip? A. Yes. CROWN PROSECUTOR Q. What colour was the balaclava? A. Black. Q. You said something about picking it up or pulling it down. What were you talking about there? A. He kept like trying to pull it up to here, over this bit of the lip. He was just like Q. What, the balaclava or - - A. Yes. HIS HONOUR Q. What was he using to do that, his hand I presume? A. Yes. Q. At least one of his hands was pulling the balaclava up over his - - A. Yes. Q. - - lips? A. Yes. CROWN PROSECUTOR Q. Were you able to, and I appreciate this might seem a silly question, but were you able see any hair of any description? A. No. Q. Could you see his eyes? A. His eyes, yes. Q. Do you know what colour they were? A. Yes. Q. What colour were they? A. Brown. Q. You've given some evidence about the skin you could see on the arm. Were you are able see the colour of the skin that wasn't covered by a balaclava? A. Yes. Q. What colour was that? A. I actually looked and thought my God his face is quite white compared to his arms. He was very, very, very well shaven. Looked like he'd gone over it heaps of times. HIS HONOUR Q. But you were asked what colour of the skin. It's white compared compared [sic] to his arms? A. Well like, to anyone who, normally it would be olive I suppose, but should be light olive.
5. Ms Spiteri described the person having "like a puffy face". [13]
6. The gun was then pointed at Ms Spiteri and the trigger was pulled. [14] Ms Spiteri described the gun making a "really strange noise…. like a sizzling noise". [15] She then saw smoke, following which the person put his hand through the door. [16] Mr Devenish then struck the person again, [17] after which the person pulled away before fleeing. [18] Ms Spiteri gave evidence of seeing a "shadow going down the steps and … the arm of someone that was skinny behind him". [19]
7. Ms Spiteri was cross-examined as to her observations of the person's skin colour: [20] Q. When you were observing that person you were able to give some indication of the skin colour of his arm? A. Yes. Q. I used the word his arm. The impression you got from observing the person was that it was a male, yes? A. Yes. Q. You described to the jury a little earlier that the skin colour that you saw was dark brown? A. Yes. Q. You've provided a couple of statements to police in this matter haven't you? A. Yes. Q. You provided one the very morning of these events didn't you? A. Yes. Q. In coming to Court you've had a chance to have a look at your statement? A. I've looked through it only once, yeah. Q. Afterwards you've added some details - - A. Yes. Q - - in the second statement - - A. Yeah. Q. - - haven't you? A. Yes, but not of his colour. I said all along he was Aboriginal. Q. I'll get to that in a moment. In terms of describing the arm, the description you used in the second statement you made was 'dark ash brown'? A. Yes. Q. The description you used in Court was dark brown? A. Sorry, I meant dark ash - sort of - it wasn't a golden brown. It wasn't like a Mediterranean brown. HIS HONOUR Q. It was like a Mediterranean brown? A. No. [TRIAL COUNSEL FOR THE APPELLANT] Q. By that you mean it was darker than that? A. Yes. Q. You've given some evidence of being able to see some of the person's face? A. Yes. Q. Indeed you gave evidence that what you could see was eyes? A. Yes. Q. Nose? A. Yes. Q. Cheeks? A. Yes. Q. And you gave some evidence before of seeing the top part of the top lip? A. Yes. Q. So just below the nose, yes? A. Yeah, it might have slipped a bit onto his lip but it was - I could see practically that bit all around there. Q. From that observation, that's where you indicated the skin colour was paler than the arm? A. Yes. Q. Noticeably so you thought? A. Yeah. Q. But you certainly, in terms of describing the facial skin colour, olive was what you more described it, yes? A. Yeah, it's hard to - like it's hard to explain exactly what colour is [sic] face was. I just know it was a lot lighter than his arms. Q. Yes, all right. A. Because he'd shaved heaps by the looks of it, just - Q. A moment ago you said that from what you could see the person you thought he was Aboriginal? A. Yes. Q. Based on the features of his face is that right? A. Yes. Q. Am I correct in saying based in part by the skin colour of his arm, yes? A. Yes.
8. Mr Winwood-Smith gave evidence of the incident which was, generally speaking, consistent with that of Ms Spiteri. In terms of his observations of the person, he said that when he looked through the broken window he saw "a guy with a balaclava on" and that the balaclava was black. [21] As to the appearance of the balaclava, Mr Winwood-Smith said: [22] Yeah it was, like it was an unusual balaclava. I had never seen one like that before. It had a large rectangular hole rather than two small eye holes, so you could see quite a bit of his face.
9. Mr Devenish also gave evidence of the incident which was generally consistent with that of Ms Spiteri and Mr Winwood-Smith. He described a hand coming through a glass window in the door wearing a short glove which was brown and was on the person's left hand. [23] Mr Devenish explained that he took a hockey stick and hit the person's hand and that as the hand came through the glass he saw that he was wearing a gold watch on his wrist. [24] He then heard a gunshot and saw what he described as "a lot of smoke". [25]
10. Mr Devenish also gave evidence of the balaclava which was worn by the person: [26] Q. Did you see anything outside? A. Yeah, I seen a, a guy with a balaclava, sort of, looking in, sort of thing, and that's when he put the gun in. Q. What type of balaclava was the man wearing? A. A balaclava which had a big circle cut out. It wasn't with the two eyes; it was one big - - Q. Just pausing there. You've drawn with your find [sic] a circle from your eyebrow down the side of your face, underneath your nose and, and back around? A. Yeah, yeah, yeah. It was one of them ones that, sort of, have an opening like, like that. Q. You're indicating an oval-type arrangement rather than two eye holes and - - A. Than two eyes, yeah. It was an oval-type, type one. Q. It may be that I've asked you this, but do you know what colour the balaclava was? A. Not [sic], it was dark - a dark colour, but I, I don't think it was black for some reason. I don't know why, but it was just a dark coloured - -
11. By agreement between the Crown and counsel for the appellant, extracts from the statement made by Ms Spiteri's daughter, Taylor, were read to the jury: [27] I heard glass shatter. I immediately opened my bedroom door and saw glass scattered over the floor through the entryway. I saw that a glass panel in the front door was smashed. I then saw an arm come through the broken panel and reach for the lock on the door. I could tell it was a male's arm. It was medium sized, of olive complexion, and covered in hair, not a lot. Rodney took hold of a hockey stick which was beside the front door, and hit the hand. The person removed their hand, then I saw the barrel of a gun being pushed the (as said) broken glass panel. The barrel was black and about 30 centimetres long. It had a scope attached to it. The barrel was pretty thick, the size of a 20 cent piece. I immediately ran back to my bedroom and locked my door. I asked Braydon to find my phone. At this moment I heard a loud bang.

The finding of the watch

1. Ms Spiteri gave evidence that at one point whilst the person's arm was coming through the broken glass a watch had "come off". [28] Mr Devenish was asked what had occurred after he opened the front door of the premises following hearing a car depart from the scene: [29] Q. Which door are you talking about there? A. The wooden door, I opened up the wooden door, and the screen door was already wide open. I opened up the wooden door. I noticed the gold watch straight down on the floor. Q. Where abouts straight down on the floor? A. Straight down. As soon as you take a step out, you would have trod on it, sort of thing, and then - and then next to it was real big long bullet and then, sort of, looking round, there was a hat in the driveway or something as well. Then that was it. It was - yeah, I went back to see if the kids and that were all right because everyone was, sort of, shocked. It was - shook them - yeah, shook them all up. Q. Having seen the gold watch, did you do anything with it? A. Yeah, I put it in my pocket, thinking I'd just scored a gold watch. Q. All right. A. Yeah, and - until the police came and asked what happened and I told them and I had to give it back. Q. When you touched the gold watch, did you have anything on your hands? A. Anything on me? Q. Were you wearing a glove or anything like that? A. No, no, no, no, no. It was just - no, I wasn't. Q. I think when you - I think you said when you thought you'd scored the gold watch. Having told the police that you had it, did you just hand it to them or what did you do with the watch? A. Yeah, I, I placed it down to show them where I picked it up from, sort of thing, saying, like, that's, that's where I found it and, yeah, they were a little upset because I've got my DNA on it or something then and - yeah. …. Q. The watch that you thought you'd scored, what did you notice about it, if anything? A. It was a gold, Quicksilver watch. It was pretty flashy looking. Q. You'd indicated earlier that you'd seen a left hand a watch come through where the glass had been broken on the window? A. Yep. Q. How far is where you found the watch from where you saw the hand come through the window? A. How far was the watch found? Pretty much a foot away from the door on the - on the outside of the door. Q. You had arrived at the address at around about 10 o'clock on the night before or in the hours before? A. Yep. Q. Was there anything on the front doorstep then? A. No, no, no, no, no, I would have picked it up then.
2. Senior Constable Cajna gave evidence that the watch recovered by Mr Devenish was seized [30] and was swabbed for subsequent DNA analysis. [31]

The appellant 's ownership of a watch

1. Tamara Willstrop had been in a relationship with the appellant between 2016 and 2017. She gave evidence that she had purchased the appellant a "Quicksilver" brand gold watch for Christmas in 2016. [32] She identified three photographs [33] depicting a watch which she described as being "very similar" to that which she had given to the appellant .
2. Ms Willstrop also identified the appellant wearing the watch she had given him in a series of photographs taken at her son's birthday on 4 July 2017. [34] She agreed in cross-examination that the appellant had very little hair on his forearm when those photographs were taken. [35]
3. Further, and aside from the evidence of Ms Willstrop, the following was an agreed fact: [36] On Tuesday 18 July 2017 [the appellant] was wearing a gold coloured Quicksilver brand watch, with gold coloured watch band on his left wrist [the watch]. The appearance of the watch is the same as that of a watch found at [xxx] Warilla on 1 August 2017
4. Ms Willstrop agreed that after she had spoken to the police in August 2017 she had been charged with offences arising from the sale of drugs from her premises. [37] It was an agreed fact [38] that the appellant had not been charged with any criminal offence arising out of the sale of prohibited drugs by Ms Willstrop.

The finding of a balaclava and gloves

1. On the morning of 1 August 2017, Jessica Grimley was driving a motor vehicle with her daughter seated in a baby-seat in the rear. Ms Grimley had placed her daughter in that seat before leaving and said that when doing so she did not see anything usual in the rear of the vehicle, and specifically did not see a glove or a balaclava. [39] Between 9.00am and 10.00am Ms Grimley received a call from Michael Zeiser (Zeiser) and they arranged to meet at Mangerton. [40] The following facts as to what then occurred were agreed: [41] 1. On Tuesday 1 August 2017 about 11.25 am [the appellant] was seated in the rear seat behind the front passenger in motor vehicle, registered number CH81WJ a White Hyundai Elantra [the vehicle] in Brownlee Street, Mangerton. Also, in the vehicle were Michael Zeiser, date of birth 5 April 1991, in the front passenger's seat. Ashley Allcock, date of birth 5 May 1992, was in the middle rear seat and Jessica Grimley, in the driver's seat. Also seated in the rear of the car was a young child in a toddler child safety seat. 2. Located within the vehicle were the following items i. A black balaclava wrapped around two pairs of gloves in the rear passenger foot well, partially under the front passenger seat…… ii. In the front passenger foot well, a pair of gloves, black and yellow in colour…..
2. Photographs of these items were tendered. [42] Detective Cajna gave evidence of a "tape lift" performed on the balaclava [43] along with a tape lift performed on one of the gloves from each set found, all of which were submitted for DNA analysis. [44]

The DNA evidence

1. Rebecca Williams, Senior Forensic Biologist, gave evidence of the results of her DNA analysis of swabs taken from various items. Her evidence may be summarised as follows: 1. the DNA recovered from the back of the watch band was a mixture that originated from at least two individuals, and the appellant could not be excluded as a major contributor to that mixture; [45] 2. the DNA recovered from the front of the watch band was, in the first case, a mixture that originated from at least two individuals (the appellant not being excluded as a major contributor to that mixture) [46] and in the second case, was a partial profile that was the same as that of the appellant; [47] 3. the DNA recovered from the front of the face of the watch had the same profile as the appellant; [48] 4. the DNA recovered from inside the balaclava was a mixture that originated from at least four individuals, and the appellant could not be excluded as a contributor to that mixture; [49] and 5. the DNA recovered from one of the gloves was a mixture that originated from at least four individuals and the appellant could not be excluded as a contributor to that mixture. [50]

THE VERDICTS OF GUILTY ARE UNREASONABLE AND/OR CANNOT BE SUPPORTED HAVING REGARD TO THE EVIDENCE AND THE CONVICTIONS ARE UNSAFE AND UNSATISFACTORY

Submissions of the Appellant

1. The primary submission advanced on behalf of the appellant was that the evidence identifying him as the person responsible for the commission of the offences "pulled in different directions". It was submitted that having regard to what were described as various "tensions" in the evidence, a jury acting reasonably should have entertained a reasonable doubt about the appellant's guilt.
2. Counsel submitted that the evidence given by Ms Spiteri and Mr Devenish as to their observations was inconsistent with a conclusion that the appellant was the person at the front door of the premises. It was submitted that when viewed as a whole, what were described as the "inconsistencies in the circumstantial elements" of the case were such that this Court was in the same position as the jury in terms of assessing that evidence. It was submitted that the "inconsistencies, discrepancies and other inadequacies of the evidence" were all such that the jury, acting rationally, ought to have entertained reasonable doubt as to the proof of the identity of the person responsible as the appellant. As I understood it, the "inconsistencies, discrepancies and other inadequacies" were said to arise principally from the evidence of Ms Spiteri and Mr Devenish.

Submissions of the Crown

1. The Crown emphasised that, given the circumstantial nature of the Crown case, it was necessary to view the evidence as a whole, and not in a piecemeal way. In this regard, the Crown pointed to a number of circumstances (which I have considered in more detail below) which, it was submitted, clearly supported the jury's verdicts.
2. The Crown emphasised that the observations of Ms Spiteri and Mr Devenish were only part of the evidence, and that the evidence was to be viewed and assessed as a whole.

Consideration

1. The principles which govern the Court's function in determining the ground of appeal may be summarised as follows.
2. Firstly, the appellant bears the burden of establishing that this Court should interfere with the jury's verdict. [51]
3. Secondly, this Court must make its own independent assessment of the evidence and must address the question whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. [52]
4. Thirdly, in discharging its function, this Court must not disregard, or discount, the fact that the jury is the body entrusted with the primary responsibility of determining guilt, and in that respect, has had the benefit of seeing and hearing the witnesses give evidence. [53]
5. Fourthly, this Court may set aside a verdict where the evidence contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force so that, even taking into account the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted. [54]
6. Fifthly, and given that the Crown case was largely a circumstantial once, it is necessary to assess the evidence as a whole and not in a piecemeal way. In other words, all of the circumstances established by the evidence must be considered and weighed in order to determine whether there is an inference consistent with innocence which is reasonably open on the evidence. [55]
7. In light of the primary submission advanced on behalf of the appellant , it is appropriate to commence the necessary analysis by addressing the evidence of those who were in the premises at the time. Of all of those persons, three gave what might be described as identification evidence.
8. Ms Spiteri said that the person she saw: 1. "looked Aboriginal"; 2. had a facial colour which she variously described as light olive, dark brown but not a "golden brown" or a "Mediterranean brown", lighter than his arms; 3. had brown eyes and a "puffy" face; and 4. had shaved arms.
9. Mr Winwood-Smith described the person having "olive" coloured skin, an assessment he described as being based upon a "fleeting glimpse". He was not cross-examined on that observation.
10. Ms Spiteri's daughter, Taylor, described seeing a male person with olive skin and an arm which was covered with hair.
11. Although not present at the time, it is relevant to note that Tamara Willstrop agreed that in the photographs taken in July 2017, the appellant had very little hair on his forearm.
12. Aspects of these descriptions are inconsistent. Ms Spiteri's description of the person's skin colour varied considerably. Some of those descriptions were not consistent with the evidence of Mr Winwood-Smith that the person's skin colour was "olive".
13. Further, Ms Spiteri described the arm of the person she saw as shaved. Whilst that was generally consistent with the evidence of Tamara Willstrop, Ms Spiteri's daughter said that the arm that she saw was covered in hair.
14. It is clear that the observations of those witnesses who were present were made within a short period of time. The trial judge correctly directed the jury that the evidence given by those witnesses was to be assessed having regard to the fact that they found themselves involved in a traumatic event. [56] His Honour also reminded the jury that "memory is rarely 100 per cent accurate." [57]
15. Before this Court, counsel for the appellant emphasised these inconsistencies. In doing so, counsel approached the matter in a way which tended to ignore a series of objective circumstances upon which the Crown relied. Such an approach runs contrary to the requirement to consider a circumstantial case as a whole. Adopting the correct approach, the following circumstances (none of which were in dispute) are established by the evidence: 1. the appellant had been given a gold "Quicksilver" brand watch as a gift for Christmas in 2016; 2. the appellant was wearing that watch on 4 July 2017, less than four weeks prior to the offending; 3. the appellant was wearing that watch on 18 July 2017, less than two weeks prior to the offending; 4. the person who placed his hand through the door was wearing a gold watch; 5. a gold "Quicksilver" brand watch was found at the premises near the front door after the person(s) responsible for the offending had left; 6. DNA recovered from swabs taken from the watch was linked to the appellant; 7. specifically, the DNA recovered from the front of the face of the watch had the same profile as the appellant; 8. the person responsible for committing the offences was wearing a balaclava at the time; 9. the balaclava was described as having "a large rectangular hole rather than two small eye holes"; 10. the person responsible for committing the offences was also seen to be wearing a glove or gloves; 11. a balaclava matching the description of that worn by the person responsible for committing the offences was found, along with two sets of gloves, at the feet of the appellant when he was seated in the rear of a motor vehicle less than 12 hours after the offences were committed; 12. the balaclava and gloves were not there when the driver had entered the vehicle a short time earlier; 13. DNA recovered from inside the balaclava was a mixture from at least four individuals and the appellant could not be excluded as a contributor to that mixture; and 14. DNA recovered from inside one of the gloves was a mixture from at least four individuals and the appellant could not be excluded as a contributor to that mixture.
16. It was the jury's task to consider, and weigh up, the entirety of the evidence, not just the evidence of observations made by those who were present at the time. In doing so, it was obviously open to the jury to accept or reject part (or for that matter, the entirety) of the evidence of any witness. In the context of the present case, that meant that it was open to the jury to reject the various descriptions of (inter alia) the skin colour of the person who was seen at the door. However, that was only part (and a comparatively small part) of the evidence. The whole of the evidence must be considered.
17. The evidence surrounding the watch was, in my view, particularly powerful. The alternative hypothesis advanced by counsel before this Court, namely that another person must have somehow acquired the watch and just happened to be wearing it at the time of the offending, is not a reasonable one. The evidence surrounding the balaclava was equally powerful, particularly in circumstances where a balaclava of that same "unusual" description was found in the appellant's possession less than 12 hours after the offending. Added to this was the evidence that the person responsible for the offending was wearing a glove or gloves, in circumstances where gloves linked to the appellant were found with the balaclava.
18. Whilst there were some inconsistences, it could hardly be said that when viewed as a whole, the evidence was lacking probative force. On an independent assessment of the evidence, it was clearly open to the jury to conclude that the Crown had established beyond reasonable doubt that the appellant was the person responsible for the commission of these offences.
19. Indeed in my view, when the circumstances I have identified are viewed as a whole, they establish a strong case against the appellant .

ORDERS

1. I propose the following order: 1. The appeal against conviction is dismissed.
2. CAVANAGH J: I agree with Bellew J.
3. I have carried out my own independent assessment of all of the evidence. I do not consider that having regard to all of the other evidence implicating the Appellant (as referred to by Bellew J) the inconsistencies in the observations of the witnesses are such that the jury ought to have had a doubt as to the guilt of the Appellant.
4. In those circumstances, the appeal must be dismissed

Endnotes

1. R v Mitchell [2020] NSWDC 293 at [1] - [9].
2. AB 134.1 - AB 134.22.
3. AB 137.5 - AB 137.45.
4. AB 138.5 - AB 138.12; AB 139.29 - AB 139.31.
5. AB 141.20 - AB 141.32.
6. AB 145.19 - AB 145.21; AB 147.4 - AB 147.5.
7. AB 147.10 - AB 1.7 .24.
8. AB 149.4.
9. AB 148.20 - AB 148.50.
10. AB 148.20 - AB 148.50.
11. AB 150.17 - AB 150.18.
12. AB 152.19 - AB 154.45.
13. AB 161.31 - AB 161.32.
14. AB 154.49 - AB 156.30.
15. AB 156.44 - AB 156.48.
16. AB 158.38.
17. AB 159.16 - AB 159.17; AB 161.11 - AB 161.23.
18. AB 161.35 - AB 162.46.
19. AB 165.24 - AB 165.25.
20. AB 170.7 - AB 171.49.
21. AB 180.16 - AB 180.47.
22. AB 180.30 - AB 180.434.
23. AB 216.9 - AB 217.34.
24. AB 216.8 - AB 216.18.
25. AB 218.35 - AB 218.45.
26. AB 220.13 - AB 220.32.
27. MFI 3 at [6]-[8]; AB 223.27 - AB 223.39.
28. AB 160.39.
29. AB 221.27 - AB 222.32.
30. AB 239.14 - AB 239.20.
31. AB 240.24 - AB 240.38; Exhibit R.
32. AB 191.21 - AB 191.31.
33. AB 192.8 - AB 192.16; Exhibit C.
34. Exhibit D; Exhibit 1; AB 193.1 - AB 193.3.
35. AB 199.26 - AB 199.32.
36. Exhibit V.
37. AB 199.36 - AB 200.25.
38. Exhibit E.
39. AB202.32 - AB202.41; AB 204.34 - AB 204.47.
40. AB 202.32 - AB 202.45.
41. Exhibit V; AB 80 - 81.
42. Part of Exhibit V; AB 82 - 91.
43. AB 243.42 - AB 244.27.
44. AB 246.1 - AB 246.13.
45. AB 259.12 - AB 259.17.
46. AB 259.34 - AB 259.38.
47. AB 261.1 - AB 261.5
48. AB 260.21 - AB 260.25.
49. AB 262.23 - AB 262.28.
50. AB 264.10 - AB 264.14.
51. MacKenzie v The Queen (1996) 190 CLR 348 at 370; [1996] HCA 35.
52. The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35; M v The Queen (1994) 181 CLR 487; [1994] HCA 63; Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30.
53. Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [37]; Baden-Clay at [65] - [66].
54. M v The Queen.
55. The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13 at [46]-[48].
56. AB 326.
57. AB 327. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 July 2021