Prosecution v Accused

1 Nicholas James Cross is charged with the murder of Maddison Jane Pante, contrary to the common law. Mr Cross was arraigned on 31 March 2022 and pleaded not guilty.

2 Ms Pante died as the result of a gunshot to her forehead. She was shot inside a 'glamping' tent erected at the Geelong Showgrounds ('Showgrounds') in Breakwater, Geelong on the morning of Monday 3 December 2018. Present in the tent at the time of the shooting were Mr Cross, Tracy Menzies, a friend of Mr Cross, and Brodi Costello, Ms Pante's intimate partner for a short period prior to her death.

3 It is not disputed that Ms Pante was shot with a firearm that Mr Cross brought to the Showgrounds on the morning of 3 December.[1] Mr Costello is the prosecution's key witness, and said that he witnessed Mr Cross shoot Ms Pante with that firearm. This is direct evidence that Mr Cross caused Ms Pante's death. The prosecution case also includes a body of circumstantial evidence in relation to Mr Cross' conduct after Ms Pante's death, which it says demonstrates Mr Cross' consciousness of guilt.

4 At trial, Mr Cross gave evidence in his own defence and said that it was Mr Costello who shot Ms Pante inside the tent. Mr Cross said that Mr Costello picked up the gun from the bed, thinking it was unloaded, cocked it, pointed it at Ms Pante and fired. In other words, Mr Cross said that Mr Costello shot Ms Pante accidentally.

5 The identity of the shooter is therefore the critical issue in this case.

6 As explained in these reasons, I am satisfied beyond reasonable doubt that Mr Cross shot Ms Pante and caused her death. This conclusion has three bases, each comprised of specific subcomponents. In summary:

(a) I accept Mr Costello's direct evidence that Mr Cross shot Ms Pante. Specifically:

(i) I reject as a reasonable possibility that Mr Costello returned to the Showgrounds on the afternoon of Monday 3 December;

(ii) I am satisfied that Ms Pante's shooting could have occurred during Mr Costello's call with Centrelink;

(iii) I am satisfied that Mr Costello's account of the shooting is consistent with Ms Pante's autopsy results;

(iv) I do not consider that the limited inconsistencies between Mr Costello's account at trial and his earlier accounts, or his omission of certain collateral details in his earlier accounts, are indicia of dishonesty;

(v) I consider that Mr Costello's evidence has many positive indicia of truthfulness; and

(vi) I do not consider that Mr Costello's conduct after the shooting demonstrates a consciousness of guilt;

(b) I consider that Mr Cross is not a witness of credit, and therefore reject his direct evidence that Mr Costello shot Ms Pante. Specifically:

(i) many aspects of Mr Cross' account are inherently implausible;

(ii) many aspects of Mr Cross' account are difficult to reconcile with other aspects; and

(iii) the precision and certainty of Mr Cross' account suggest a dishonest fabrication.

While there are many aspects of Mr Cross' account that may well be true, the only reasonable explanation for the implausibilities, issues reconciling aspects of his account, and precise recollections, when considered in aggregate, is that Mr Cross has moulded a version of events to meet the case against him; and

(c) I consider that the only reasonable explanation for certain aspects of Mr Cross' conduct after the shooting, when considered in aggregate, is his belief that he caused Ms Pante's death. Specifically:

(i) I am satisfied to a high degree of probability that Mr Cross burnt the tent containing Ms Pante's body, or instructed someone to burn it;

(ii) I am satisfied to a high degree of probability that Mr Cross burnt the Suzuki Swift that he drove to the Showgrounds, or instructed someone to burn it;

(iii) I reject Mr Cross' explanation of why he fled Victoria in the days after the shooting;

(iv) I reject Mr Cross' explanation of why he sent a message to Mr Drew on 4 December saying he 'wasn't going to go anywhere without them [the police] knowing the situation' and, 'When they get me I'm doing 10yrs min'; and

(v) I reject Mr Cross' explanation of why he sent self-deleting Facebook messages to Ms Purdie on 4 December telling her to, 'Forget all about the Suzuki Swift' and saying, 'You know nothing about the 22 [calibre sawn-off rifle]'.

7 I am also satisfied that Mr Cross shot Ms Pante in substantially the manner described by Mr Costello, that is: at point blank range in the context of an ongoing verbal argument with Ms Pante and in circumstances where Ms Pante presented no serious threat to Mr Cross. On this basis, I am satisfied beyond reasonable doubt that Mr Cross' shooting of Ms Pante was conscious, voluntary and deliberate, that he intended to kill Ms Pante or cause her really serious injury when he shot her, and that he had no lawful justification or excuse for doing so.

8 Even if I was not satisfied that Mr Cross' conduct after the shooting constituted incriminating conduct in the legal sense, I would still be satisfied beyond reasonable doubt, on the balance of the evidence, that Mr Cross: caused Ms Pante's death; did so consciously, voluntarily and deliberately; intended to kill Ms Pante or cause her really serious injury when he caused her death; and had no lawful justification or excuse for doing so.

9 I therefore find Nicholas James Cross guilty of murder.

10 This matter has a long procedural history beset by delay.

11 The trial of the charge against Mr Cross was originally scheduled to commence on 18 May 2021 in Geelong. Following two unsuccessful attempts at empanelling a jury, the proceeding was transferred to Melbourne.[2] Between 27 May 2021 and 1 March 2022, the proceeding was listed for trial and subsequently vacated on eight occasions due to complications arising from the COVID-19 pandemic.[3]

12 On 8 March 2022, a jury was empanelled and a trial commenced. On 15 March 2022, the trial was vacated and the jury discharged, again due to complications arising from the COVID-19 pandemic.

13 Mr Costello gave evidence over two days during the initial jury trial. That evidence was recorded. However, Mr Costello was still in cross-examination when the trial was vacated. After the jury was discharged, the parties agreed that it was preferable for Mr Costello to conclude his evidence by way of recording, and for the entirety of his recorded evidence to be played before the new jury.

14 A new trial date was set for 24 March 2022; however, this was also vacated due to the COVID-19 pandemic. The remainder of Mr Costello's evidence was recorded over 28 and 29 March 2022 in the absence of a jury.

15 On 30 March 2022, the Justice Legislation Amendment (Trial by Judge Alone and Other Matters) Act 2022 (Vic) came into effect. That Act creates temporary amendments to the Criminal Procedure Act 2009 (Vic) ('Criminal Procedure Act') to allow the trial of indictable offences before a judge sitting alone.[4] On the same day, Mr Cross applied for a trial by judge alone pursuant to s 420E of the Criminal Procedure Act. That application was supported by the prosecution.

16 I subsequently made an order that the charge of murder against Mr Cross be heard and determined by judge alone.

17 The trial commenced before me on the same day, 31 March 2022. On that day Mr Cross was arraigned and pleaded not guilty to murder.

18 At the trial the parties relied upon the openings given on 8 March 2022 before the jury which was ultimately discharged.[5]

19 The audio-visual recording of Mr Costello's evidence was played to the Court on 31 March, and 1 and 4 April 2022, and was received as prima facie evidence of his examination in chief, cross-examination and re-examination under s 135 of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) ('Evidence Misc. Act').

20 The following prosecution witnesses gave their evidence remotely via audio-visual link with the consent of the prosecution and defence and pursuant to ss 42E and 42G of the Evidence Misc. Act:

21 The prosecution closed its case on 26 April 2022. The defence called Mr Cross to give evidence and then closed its case on 28 April 2022. On 29 April 2022, the prosecution applied under s 233(2) of the Criminal Procedure Act to reopen its case for the limited purpose of adducing a further agreed fact in relation to the history of a stolen Hyundai i30 driven by Mr Cross at various points. This was not opposed by the defence. I granted leave for the prosecution to adduce that evidence. The prosecution adduced the further agreed fact pursuant to s 184 of the Evidence Act 2008 (Vic) ('Evidence Act').[6]

22 In accordance with the amendments to the Criminal Procedure Act facilitating judge alone trials, I may make any decision that could have been made by a jury.[7] My decision has, for all purposes, the same effect as a jury verdict.[8] In these reasons I must include the principles of law that I have applied and the facts on which I have relied to reach my verdict.[9]

23 Section 4A of the Jury Directions Act 2015 (Vic) ('Jury Directions Act') applies to this case.[10] This means that my reasoning with respect to any matter to which Parts 4, 5, 6 or 7 of the Jury Directions Act makes provision must be consistent with how a jury would be directed according to the Jury Directions Act.[11] Similarly, I must not accept, rely on, or adopt a statement, suggestion or direction that Parts 4, 5, 6 or 7 of the Jury Directions Act prohibit a trial judge from making or giving a jury.[12]

24 While Part 3 of the Jury Directions Act (which concerns requests for directions) does not apply to judge alone trials, counsel nevertheless addressed me at the conclusion of evidence on the directions and principles to which I should have regard. In reaching my verdict, I have had regard to each of those matters, where appropriate.

25 As in a trial by jury, the onus of proof is on the prosecution and Mr Cross comes to this Court with the presumption of innocence in his favour. Mr Cross is regarded as innocent unless and until the prosecution has proved his guilt beyond reasonable doubt. The prosecution must prove beyond reasonable doubt each element of the offence charged, or an alternative offence, and the absence of any relevant defence.[13] The prosecution does not need to prove every fact that it alleges to this standard; however, facts must be clearly proved before they can be treated as established.[14]

26 It falls to me to consider all the evidence and decide the facts of this case. I must then apply the law to the facts I have found in order to determine whether Mr Cross is guilty or not guilty of murder.

27 In order to decide what the facts are in this case, I must assess the credibility and reliability of the witnesses who gave evidence. It is for me to decide whether a witness' evidence is to be believed and the weight which should be attached to any particular evidence.

28 The expert evidence in this case was not disputed. I must have a very good reason not to accept undisputed expert evidence.[15] There are no good reasons to reject some or all of the expert evidence in this case.

29 Mr Cross gave evidence in his own defence. As such, I note the following:

(a) as an accused person, Mr Cross did not have to give evidence,[16] as he has the right to remain silent in court;

(b) it is the prosecution who must prove Mr Cross' guilt beyond reasonable doubt. It is not for Mr Cross to prove his innocence. This has not changed because Mr Cross chose to give evidence;[17]

(c) I must assess Mr Cross' evidence in the same way I would assess the evidence of any other witness;[18] and

(d) I must not give less weight to Mr Cross' evidence just because he is on trial and has an interest in the outcome of the trial.

30 Further, Mr Cross' evidence is directly contradicted by the account of a prosecution witness, Mr Costello. Notwithstanding this, it is not necessary for me to accept Mr Cross' evidence in order to find him 'not guilty'. Rather, I must acquit Mr Cross if his evidence (either alone or together with other evidence) gives rise to a reasonable doubt about his guilt. This is the case even if I prefer Mr Costello's evidence to Mr Cross' evidence. If I do not think that Mr Cross is telling the truth, but am unsure where the truth lies, I must find Mr Cross 'not guilty'.

31 During his evidence Mr Cross volunteered that he had engaged in a range of criminal conduct. I must not reason that, because Mr Cross engaged in other types of criminal behaviour, he is more likely to have committed the offence charged. That kind of reasoning is prohibited. My decision must be based only on the evidence given in the trial, not on assumptions about the kinds of people who commit crimes.

32 In summary, there are four conclusions I might reach about Mr Cross' evidence:

(a) if I think Mr Cross' evidence is true, then I will find him not guilty;

(b) if I am not sure whether Mr Cross' evidence is true, but think it might be, then I will have a reasonable doubt about the prosecution case, and again, I will find Mr Cross not guilty;

(c) if I merely prefer Mr Costello's evidence to Mr Cross' evidence, I must find Mr Cross not guilty. It is not sufficient for me to merely find the prosecution case to be preferable to the defence case. In other words, it is not a question of simply balancing one case against the other. The prosecution must establish Mr Cross' guilt beyond reasonable doubt; and

(d) if I reject Mr Cross' evidence, that does not mean I must find him guilty. Instead, if I reject his evidence, I must put it aside and ask whether the prosecution has proved Mr Cross' guilt beyond reasonable doubt, on the basis of the evidence I do accept.

33 Finally, I note that the prosecution did not call Ms Menzies to give evidence in this case. The defence did not impugn the prosecution's decision not to call Ms Menzies, but did seek an anti-speculation warning.[19] I cannot identify any good reasons for not doing so. Accordingly, I must not speculate about what Ms Menzies might have said had she given evidence, and can only decide the case on the evidence before the Court.

34 In order for me to return a guilty verdict, the prosecution must prove each of the four elements of murder beyond reasonable doubt. The four elements are that:

(a) the accused committed acts which caused the victim's death;

(b) the accused committed those acts consciously, voluntarily and deliberately;

(c) the accused committed those acts while intending to kill the victim or cause the victim really serious injury; and

(d) the accused did not have a lawful justification or excuse for those acts.

35 As noted above, it is not disputed that Ms Pante was shot with a firearm that Mr Cross brought to the Showgrounds on the morning of 3 December 2018.[20] The contentious fact is who fired the gun. The defence asserts that, on the available evidence, the prosecution has not excluded as a reasonable possibility that Mr Costello fired the gun. Accordingly, the defence asserts that the first element is not made out.

36 As a result of the defence's position - that Mr Costello and not Mr Cross shot Ms Pante - relatively little attention was directed at trial to the remaining three elements of the offence. Nevertheless, in order to return a guilty verdict, I must be satisfied of those elements beyond reasonable doubt. For the sake of convenience, where I refer to a 'murderous intention' in these reasons, I am referring to an intention to kill or cause really serious injury.

37 If I am not satisfied beyond reasonable doubt that Mr Cross caused Ms Pante's death then I must return a verdict of not guilty for murder, as well as for the alternate offence of manslaughter. However, if I am satisfied beyond reasonable doubt that Mr Cross shot and killed Ms Pante, but am not satisfied beyond reasonable doubt that he had a murderous intention at that time, then it falls for me to consider alternate verdicts.

38 The following is a detailed summary of the relevant events. It includes the agreed facts.[21] The contentious elements of these events are detailed later in these reasons.

39 Ms Pante met Mr Costello in October 2018 through a mutual friend and, shortly after, they commenced an intimate relationship. Neither had stable accommodation, and both were using illicit drugs in the weeks prior to Ms Pante's death. Mr Costello and Mr Cross had known each other since 2017. They gave different accounts of the closeness of their relationship. Mr Cross met Ms Pante in early November 2018 through Mr Costello.

40 Mr Costello was able to secure temporary accommodation at the Kardinia Motel in Latrobe Terrace, Geelong for the nights of Friday 30 November and Saturday 1 December 2018 (at trial, this was also referred to as the 'Kardinia Hotel'). Ms Pante was staying with Mr Costello at the Kardinia Motel. At some stage, Mr Cross visited Mr Costello and Ms Pante. Mr Cross had a firearm with him. Mr Cross said Ms Pante performed oral sex on him while Mr Costello was in the shower. Mr Cross said that, later on, Mr Costello brandished Mr Cross' firearm at Mr Cross, Ms Pante and himself. Mr Costello denied this.

41 Mr Costello checked out of the Kardinia Motel on the morning of Sunday 2 December. He subsequently attended an apartment above the Rheingold Restaurant in Malop Street, Geelong. Those present included Eli Cashion, a friend of Mr Costello, Ms Pante, and Jesse Hollonds, an acquaintance of Ms Pante and Mr Costello. Mr Cashion ran a business hiring out 'glamping' (glamorous camping) tents. He offered Mr Costello use of a tent until Mr Costello could find more stable accommodation. That afternoon, Mr Costello and Mr Cashion erected a tent at the Showgrounds for Mr Costello to stay in.

42 On the evening of 2 December, Ms Pante and Mr Hollonds drove to Torquay to collect an acquaintance, Jake Fry. Mr Costello stayed in the tent at the Showgrounds by himself. Throughout the course of the night Mr Hollonds drove Ms Pante and Mr Fry to various locations in Geelong. Mr Cross exchanged a number of Facebook messages, and made several voice calls, with Ms Pante between 2:43am and 7:49am on 3 December.[22]

43 Mr Costello was expecting a call from Centrelink on the morning of Monday 3 December to finalise his application for Newstart Allowance. Mr Costello woke up at approximately 7:30am. He called Mr Cashion at 7:44am, but received no answer.[23] He called Ms Pante at 7:47am and sent her a text message at 7:48am saying 'Can you bring me some ice plz'.[24] Mr Cross subsequently arrived at the tent together with a woman, Tracy Menzies.[25] Mr Cross and Ms Menzies arrived in a grey Suzuki Swift,[26] and Mr Cross was in possession of a firearm.[27] Mr Cross claims that this was one of three firearms he had in December 2018. Not long after, Mr Hollonds, Mr Fry and Ms Pante arrived in a car driven by Mr Hollonds. Mr Costello said that he was returning from the shower block when they arrived. There are conflicting accounts of the sequence of events between Ms Pante's arrival at the Showgrounds and her being shot, including who was in the tent at various times. Between 7:42am and 8:27am, Mr Costello exchanged a series of text messages with a person he recorded in his mobile phone as 'Millzy'.[28] There is a 17 minute gap between the message sent by Millzy at 8:03am and the next message sent by Mr Costello at 8:20am, which stated:

Oh very nice. Well I stayed at the caravan park last night so I'm just waiting for Eli to come pack it up with me then I'm playing it by ear

44 The two also made tentative plans to meet up later that day.

45 Phone records show that Mr Costello received a call from Centrelink at 8:43am, which lasted for 4 minutes 59 seconds.[29] According to Mr Costello, he was sitting on the bed in the tent when he received the call. Only Ms Menzies was present at that time. Ms Pante and Mr Cross subsequently entered the tent, arguing. He indicated for them to quieten down, which they did momentarily, before raising their voices again. Mr Costello said that he indicated to the pair to quieten down several times before Mr Cross suddenly produced a firearm and shot Ms Pante.

46 Mr Cross denied this version of events. He said that Mr Costello was angered by Ms Pante offering to perform oral sex on Mr Cross for drugs and a homophobic comment made by Ms Pante to Mr Costello. Mr Cross said that Mr Costello picked up the firearm which Mr Cross had left on the bed and, thinking it was unloaded, cocked it, pointed it at Ms Pante and fired. Mr Cross said that Mr Costello was not on the phone to Centrelink when Ms Pante was shot, and that the call, in fact, occurred sometime later.

47 The Centrelink officer who made the call to Mr Costello was interviewed three days later.[30] He stated that he did not hear anything during that call or any other call that day that he would consider unusual.[31] The officer did not escalate anything of note to his manager.[32] He was not advised of the circumstances of the police investigation or what he may have heard.[33]

48 Mr Hollonds and Mr Fry heard what sounded like a gunshot when they were sitting in Mr Hollonds' car not far from the tent. They immediately drove away. Mr Hollonds looked in his rear view mirror and saw Mr Costello, Mr Cross and another woman, likely to be Ms Menzies, exit the tent.

49 Mr Cross drove with Mr Costello and Ms Menzies in the Suzuki Swift to a vantage point outside the Showgrounds to see incoming traffic. Mr Cross said Mr Costello took his call from Centrelink at this time; Mr Costello denied this. They then drove to the caretaker's office at the Showgrounds where Mr Costello paid for another night for the campsite with money provided by Mr Cross. Mr Costello's name was recorded by the caretaker, William Steele, as 'Mr Brody' and the recorded mobile phone number omitted one digit.[34] At 9:13am, Mr Costello sent a text message to Mr Cashion saying, 'Crossey bought us another night man'.[35]

50 Mr Cross then drove to the suburb of Belmont, and dropped Mr Costello at a two dollar shop to purchase a padlock for the tent, again using Mr Cross' money. Mr Costello said this was Mr Cross' idea; Mr Cross said it was Mr Costello's idea. The three then returned to the tent and Mr Costello collected his belongings. Mr Costello said that Mr Cross locked the tent using the padlock and retained the key; Mr Cross said that Mr Costello locked the tent. Mr Cross did not know what happened to the key, but denied that he retained it.

51 The three then travelled to a house in Norlane. Mr Costello and Ms Menzies swapped into a white Hyundai i30. That car had been stolen from a carpark at Raaf's Beach (situated between Barwon Heads and Ocean Grove) between 6:30am and 7:15am on Saturday 1 December.[36] Before they parted, Mr Cross said to Mr Costello words to the effect of 'put it all on me' or 'you can put the blame on me'. The intended meaning of these words is contested.

52 Ms Menzies drove Mr Costello to the North Shore Train Station. According to Mr Costello, he travelled to the Waurn Ponds Train Station, slept for some time, and then took the train to Colac where his mother, Leonnie Walton, lived. He walked to Ms Walton's house, greeted her, and went to bed. He said that he rose for dinner before returning to bed and slept through until the next day, Tuesday 4 December. There was a dispute about whether Mr Costello was seen again at the Showgrounds on the afternoon of Monday 3 December.

53 Mr Cross said that, after he parted with Mr Costello and Ms Menzies, he sold the Suzuki Swift and the firearm used to kill Ms Pante, before reuniting with Ms Menzies. They went to Ms Menzies' house, arriving at about 11:30am. They then travelled to visit Mr Cross' friend Todd Sell, who was at a house in Kurunjang belonging to Christopher Barker, a friend of Mr Sell. Mr Cross said that they stayed there until about 9:00pm, smoking drugs and cleaning their respective cars. Mr Cross said that he and Ms Menzies then drove to Geelong to sell drugs. According to Mr Cross, he unsuccessfully attempted to sell the Hyundai i30 during the evening. He said that he and Ms Menzies ended up parked at a lookout spot in the suburb of Lara and that he slept in the car until the morning.

54 At about 1:36am on the morning of Tuesday 4 December, Mr Hollonds made a call to 000 and reported a tent on fire at the Showgrounds.[37] At about 1:47am, the Geelong Country Fire Authority arrived and found the glamping tent on fire.[38] Senior Station Officer Rodney Hovell observed the flame height to be 300mm to 500mm.[39] The firefighters extinguished the fire and found Ms Pante's body.[40] Police arrived a short time later and established a crime scene, which was guarded until properly searched and analysed.[41]

55 Mr Cross said that he turned on the radio at about 8:30/9:00am, and learned that a body had been found in a tent fire at the Showgrounds. He said that he immediately sought to get back the Suzuki Swift he had sold the previous day. According to Mr Cross, he was unable to contact the new owner, but managed to return the purchase money to the new owner's girlfriend and told her that the car needed to leave Geelong immediately.

56 At about 9:45am on 4 December, Mr Cross and Ms Menzies attended The Village Shopping Centre in Bacchus Marsh in the Hyundai i30 and were captured on CCTV leaving at about 9:55am.[42] Immediately after, Mr Cross and Ms Menzies attended a Coles Express petrol station in Bacchus Marsh and were captured on CCTV purchasing fuel for the Hyundai i30.[43] At 10:51am, Mr Cross viewed the Bay FM 93.9 webpage in relation to an article titled 'Police Await Tent Fire Autopsy Results' on his phone.[44]

57 Between 10:29am and 12:25pm, Mr Cross exchanged a series of text messages with Todd Sell,[45] whereby Mr Cross sought Mr Sell's assistance to book accommodation.[46] The Discovery Park in Braybrook has records of a phone booking at 11:26am. a 'Nick Cross' paying 139 dollars in cash at 12:28pm on 4 December for a cabin for two people for one night.[47] At 3:40pm, Mr Cross sent Mr Sell a text message saying 'Cars going in 10min if you want that jerry can hurry up I can't walk it in to where I am'.[48] Mr Cross said that he then sold the Hyundai i30 to a man named Justin Adams and waited to be collected by Mr Sell.

58 At some stage on the morning of 4 December, Mr Cross sent a series of self-deleting Facebook messages to a friend, Shannon Purdie, telling her to 'forget about' the Suzuki Swift, 'you know nothing about the 22', and 'I love youse all, come and see me soon.'.

59 At 4:43pm, Mr Cross sent a text message to an associate, Traveston Drew,[49] saying that he 'survived'.[50] When Mr Drew responded, 'Survived what',[51] Mr Cross replied at 4:54pm, 'Jacks\nWas in Melton and needed somewhere to sit for a bit till heat died off'.[52] When Mr Drew messaged 'U should of just come here bro',[53] Mr Cross responded, 'All g bro wasn't going to go anywhere without them knowing the situation. \nWhen they get me I'm doing 10yrs min'.[54] At 5:08pm, Mr Cross messaged Mr Drew, 'Hoteling it tonight interstate tomorrow hopefully'.[55]

60 Mr Costello said that when Ms Walton came home from work on the afternoon of 4 December, he told her that he had witnessed a murder. There are conflicting accounts of whether Mr Costello volunteered this information unprompted, or whether Ms Walton asked him questions after seeing news of a tent fire in Geelong and after speaking to Mr Cashion. Ms Walton called her father and it was agreed that Mr Costello should go to the police. The three then drove to the Geelong Police Station where Mr Costello was interviewed by police. During his interview, Mr Costello drew a sketch of the firearm Mr Cross brought to the tent, three sketches of the tent variously depicting its layout and the location of Ms Pante, Mr Cross, Ms Menzies and himself at the time of the shooting, and a sketch of the immediate vicinity of the Showgrounds where the tent was located.[56] Excerpts from the videorecording of the police interview were tendered in evidence,[57] and defence tendered a number of screenshots from the videorecording.[58]

61 At about 7:42pm on 4 December, police responded to reports of a burnt out car in a car park beside the Barwon River in Fyansford, Geelong.[59] Police subsequently arrived and recovered a grey Suzuki Swift bearing registration plate 1DC4YQ that was completely burnt out.[60] It is agreed that the car was driven to that location and set on fire sometime between 10:30pm on Monday 3 December and 6:56pm on Tuesday 4 December.[61]

62 At about 8:09pm on 4 December, Mr Cross, Ms Menzies and Mr Sell went to the Marketplace Shopping Centre in Sunshine in Mr Sell's car.[62] They left a short time later after going to Woolworths and the ATM.[63]

63 On Wednesday 5 December, Mr Sell, Mr Cross and Ms Menzies drove to New South Wales. They arrived at the home of a man named Leif Telfer in Greystanes at about 9:00pm.[64] That night, Mr Sell slept in the house, and Mr Cross and Ms Menzies slept in the garage.[65]

64 On Thursday 6 December at about 3:45pm, police arrived at Mr Telfer's house and arrested Mr Cross, Ms Menzies and Mr Sell.[66] They executed a search warrant and in the garage on the bed where Mr Cross and Ms Menzies had slept, located a grey bum-bag with 'Nike' written on it in lime green writing.[67] Inside they located a loaded Lithgow .22 calibre rim fire, bolt action rifle bearing serial number 56759 with a sawn-off barrel and butt stock, along with a container containing 189 x .22 calibre cartridges.[68]

65 As noted earlier, Mr Costello's evidence was adduced in pre-recorded audio-visual form.[69] That footage was viewed by the Court in its entirety over several days.

66 The following lay witnesses gave viva voce evidence for the prosecution:

(a) Jessie Hollonds, who drove Ms Pante to the tent on the day of the shooting;

(b) Jake Fry, an acquaintance of Ms Pante who was outside the tent in Mr Hollonds' car at the time of the shooting;

(c) William Steele, the caretaker at the Showgrounds who took Mr Costello's details when Mr Costello paid for another night at the campsite;

(d) Leonnie Walton, Mr Costello's mother;

(e) Eli Cashion, a friend of Mr Costello who made available his glamping tent for Mr Costello to stay in, and assisted Mr Costello erect that tent at the Showgrounds on 2 December;

(f) Diana Callison, a woman who was staying at the Showgrounds with her husband John in their caravan at the time of the shooting;

(g) John Callison, Ms Callison's husband;

(h) Christopher Barker, a long-time friend of Mr Sell;

(i) Shannon Purdie, a friend of Mr Cross; and

(j) Geoffrey Evans, Ms Purdie's de facto partner, and a friend and former work colleague of Mr Cross.

67 The following police witnesses gave viva voce evidence for the prosecution:

(a) Detective Sergeant Glen Weaver;

(b) Detective Sergeant Luke Farrell; and

(c) Detective Senior Constable Thomas Asciak, the informant.

68 The following expert witnesses gave viva voce evidence for the prosecution:

(a) Dr Matthew Lynch, a forensic pathologist who conducted the autopsy on Ms Pante's body;

(b) George Xydias, a scientist in the fire and explosion unit at the Victoria Police Forensic Services Centre, who conducted an analysis of the tent fire and Suzuki Swift fire;

(c) Erin Pirie, a forensic officer within the biological sciences unit at the Victoria Police Forensic Services Centre who conducted DNA analysis on the firearm and cartridges located in the garage at Mr Telfer's house, and two jerry cans provided by Mr Sell to Mr Barker; and

(d) Leading Senior Constable Paul Griffiths, a firearm and toolmark examiner at the Victoria Police Forensic Services Centre who analysed the firearm located in the garage at Mr Telfer's house to determine if it had fired the bullet found in Ms Pante's skull.

69 Mr Cross gave evidence in his own defence, but no other witnesses were called for the defence.

70 Set out below is a summary of the relevant evidence of the witnesses.

71 The prosecution tendered for identification a collated version of the transcript of Mr Costello's evidence given during the vacated jury trial and his subsequently recorded evidence. That document is marked for identification ('MFI') as P11. As a result of the collation, the document commences at page 95, concludes at page 502 and omits certain text and page numbers (where the relevant transcript was of legal argument or discussion of administrative matters). To avoid confusion with the transcript for the present proceeding, references to that document are marked as 'MFI P11 (Transcript of Brodi Costello's evidence)'.

72 Mr Costello was 23 years old and homeless at the time of Ms Pante's death.[70] He is 6 foot 7 inches tall.[71] He was addicted to illicit drugs and used ice daily.[72] He was using half a gram to a gram of ice per day.[73] He agreed that he was desperate for drugs, particularly ice, if he did not have them,[74] and regarded himself as a junkie.[75] He sold drugs to support his own addiction, but said, 'I wouldn't call myself a drug dealer'.[76]

73 Mr Costello met Ms Pante approximately two months before she died,[77] and the relationship soon became sexual.[78] Ms Pante was also homeless.[79] Both were heavy drug users, and their relationship revolved around drug use.[80] Mr Costello said their relationship was not close, 'We weren't in love or anything'.[81] They did, however, spend most of their time together.[82] According to Mr Costello, their relationship had its ups and downs;[83] they argued, but not regularly.[84] In cross-examination, Mr Costello agreed that he said to police about Ms Pante, 'we were rooting and stuff, but we weren't in a relationship'.[85]

74 It was put to Mr Costello that he had suspicions of Ms Pante being unfaithful to him. Mr Costello denied accusing Ms Pante of 'sleeping with someone else - fucking someone else'.[86] Mr Costello said he never confronted Ms Pante about being unfaithful to him.[87] Mr Costello was then shown the following two text messages sent on 30 November 2018:

13:32 Ms Pante to Mr Costello: You cunt.

13:34 Mr Costello to Ms Pante: ... how am I a cunt, I'm not the one who fucked someone else, am I?

75 Mr Costello did not recall the messages,[88] but agreed that his message appeared to be an accusation of infidelity.[89] When it was put to Mr Costello that his previous denials of having accused Ms Pante of infidelity were untruthful, he said that 'from my memory, it was the truth.'[90] Mr Costello also said he has no recollection of Ms Pante complaining to him in a message that he talked too much about 'cock and fucking guys'.[91]

76 In re-examination, Mr Costello was provided a transcript of 112 text messages exchanged between himself and Ms Pante on 30 November[92] and 42 text messages on 2 December 2018.[93] Mr Costello thought the 30 November messages were about him leaving Ms Pante.[94] When asked if he could recall any feelings of jealousy towards Ms Pante, Mr Costello said, 'No I can't - like I said, I can't remember anything like that. I really can't remember much at all from the whole period of knowing [Ms Pante].[95] After reading the 2 December messages, Mr Costello confirmed that there were no fights or disputes between him and Ms Pante from the time she came to the Kardinia Motel at about 8:00pm on 30 November until the morning of 3 December when she died.[96] When asked if his relatively placid responses to abusive messages from Ms Pante were typical for him, Mr Costello said, 'Yeah, I'm not like an angry person. Yeah, I don't really - is that what you mean?'[97]

77 Mr Costello knew Mr Cross for a couple of years prior to December 2018.[98] He purchased drugs from Mr Cross but did not have any other 'real connection' with him.[99] He said they were on good terms at the time of the shooting.[100] Mr Costello agreed that they referred to each other in text messages as 'brosef', 'bro' and 'brout',[101] and 'neph' (nephew) and 'unc' (uncle).[102] Not long before the shooting, Mr Cross helped Mr Costello retrieve clothing that had been taken from Mr Costello, either as the result of a drug debt or being stolen.[103] Mr Costello agreed that the following Facebook message from Mr Cross on 29 November related to that event:

Not a word about that to anyone. Ignore their msgs or whatever. But not one word that puts us there got it[104]

78 However, Mr Costello did not think that Mr Cross entered the house where his clothing was being held.[105] Mr Costello also agreed that Mr Cross had purchased a T-shirt for him on one occasion during that period.[106]

79 At the committal hearing, Mr Costello denied having ever asked Mr Cross for a firearm;[107] however, in cross-examination he said that he had, stating, 'someone probably asked me for a firearm, and I was probably just asking around, knew [Mr Cross] had a firearm'.[108] Mr Costello accepted that his committal hearing answer was different, and said that counsel's questioning had 'jogged me memory' about it.[109] Mr Costello accepted in cross-examination that he might have asked Mr Cross for a firearm in order to take a photo for his social media, although he could not recall doing so.[110] He also did not dispute that he might have asked Mr Cross for a firearm to use in a robbery of a drug dealer that never eventuated, although he could not recall doing so.[111]

80 Mr Costello stayed at the Kardinia Motel on the nights of Friday 30 November and Saturday 1 December. This was organised by Barwon Child, Youth & Family because Mr Costello was homeless. Ms Pante stayed with Mr Costello. Mr Cross visited on several occasions. Mr Costello said that, during one visit, Mr Cross had a gun in his possession, which he described as a 'small little .22 rifle cut down into the size of [a] handgun ...'.[112] Mr Costello said that Mr Cross left the gun on the bed and, when Mr Cross left the room, Mr Costello picked it up out of curiosity. He was not sure if he held his finger on the trigger or if the gun was loaded.[113] Mr Costello said he did not discharge the gun,[114] although he did accept that, given his limited memory of the event, it is possible he pulled the trigger and the gun went 'click'.[115] Mr Costello did not know why Mr Cross left the gun on the bed.[116] Mr Costello agreed that he was 'affected by drugs and in a euphoric state' at the time.[117] However, he denied joking around with the gun and pulling the trigger while pointed at Mr Cross, Ms Pante and then himself.[118] He denied that Mr Cross took the gun off him and said, 'You fucking idiot, that gun could've been loaded for all you knew'.[119]

81 Mr Costello had seen Mr Cross with the same gun a week or two earlier. According to Mr Costello, the two were driving together in a residential area in or near Grovedale when, for no particular reason, Mr Cross shot the gun out of the window of the car.[120] Mr Costello agreed that he initially lied to the police in his interview when he said he had not seen Mr Cross discharge the weapon before Ms Pante's shooting.[121] However, he immediately corrected that statement when prompted in the interview.[122] In re-examination, Mr Costello confirmed his belief that Mr Cross was in possession of the same firearm when they were driving together, at the Kardinia Motel and when Ms Pante was shot.[123] He did not remember seeing Mr Cross with any other firearm.[124]

82 Mr Costello checked out of the Kardinia Motel on 2 December and made his way to an apartment in Geelong. In cross-examination he stated that he could not remember if he had used ice that day, but 'I dare say I would have'.[125] Initially, Mr Costello said that he was picked up and driven by Mr Cashion, a friend of some years.[126] However, he subsequently conceded that Mr Cross may have driven him, or he may have walked.[127] Mr Costello said that Mr Hollonds and Mr Cashion were present at the apartment. Mr Costello was trying to sort out where he could stay.[128] Mr Cashion had a 'glamping' tent business and offered Mr Costello the use of a tent. Mr Costello has remained friends with Mr Cashion in the years since these events.[129]

83 Mr Costello and Mr Cashion subsequently travelled to the Showgrounds and set up a tent between 4:00pm and 5:00pm.[130] Mr Cashion supplied a bed, a fridge, a fan, a heater, floor mats, and a power box.[131] Mr Cashion also gave Mr Costello a padlock that could be used to lock the tent on the inside.[132] Mr Costello said that he would have unlocked that padlock on the morning of 3 December when Mr Cross arrived, but did not put it back on the tent on at any stage on 3 December.[133] Mr Costello said that he understood that Mr Cashion paid for the campsite for the night of 2 December.[134] Mr Costello understood that he could continue to use the tent if he could find the money to pay for subsequent nights.[135]

84 Mr Hollonds and Ms Pante arrived at the Showgrounds after the tent was set up. Mr Cashion left, and Mr Costello, Ms Pante and Mr Hollonds bought some food from the supermarket. When they returned, Mr Costello went to bed because he wanted to be rested for a phone call that was scheduled with Centrelink for the next morning. The purpose of the call was to get him started on Newstart Allowance. Centrelink was going to call him.[136] He exchanged Facebook messages with Mr Cross during that evening.[137] Those messages relevantly included the following at 6:20pm:

Mr Cross to Mr Costello: What doin any sales?

Mr Costello to Mr Cross: Nah no sales man, just hanging in my tent

...

Mr Cross to Mr Costello: Where ya at?

Mr Costello to Mr Cross: Show grounds ds

...

Mr Cross to Mr Costello: Should be sales there at the caravans

...

Mr Costello to Mr Cross: Can't get Xanax but I told him to get back to you [138]

85 Mr Costello confirmed that the person he told to 'get back to' Mr Cross was Mr Cashion, and that Mr Cashion had Xanax.[139]

86 Mr Costello set alarms for 7:30, 7:45 and 8:00am on Monday 3 December.[140] On the night of 2 December he used buprenorphine just before bed to help him sleep.[141] He agreed that he woke up at 7:30am,[142] 'refreshed, alert and ready' for his Centrelink call.[143] He told police that he had an uninterrupted sleep and 'slept like a baby'.[144] When he woke, he had a missed call from Mr Hollonds. Mr Costello sent a text message to Mr Hollonds at 7:31am saying, 'sup'.[145] Mr Costello called Mr Cashion at 7:44am, but received no answer.[146] He called Ms Pante at 7:47am and sent her a text message at 7:48am saying, 'Can you bring me some ice plz'.[147]

87 In re-examination, Mr Costello was read a series of messages he exchanged with a person recorded in his mobile phone as 'Millzy' on 3 December between 7:42am and 8:27am.[148] Mr Costello thought he could remember having a friend at the time who he referred to as Millzy, but could 'not really' remember Millzy's name, and had no recollection of exchanging those messages.[149]

88 Approximately 10 minutes after sending Ms Pante the message, Mr Cross arrived at the tent.[150] Mr Costello unlocked the padlock provided by Mr Cashion and let him in.[151] Mr Cross was with a woman Mr Costello knew as 'Rexy', who he had met before but did not know well (this woman is agreed to be Tracy Menzies). During his police interview, Mr Costello described Ms Menzies' appearance but said that he did not know her name or address.[152] He agreed this was despite having been to her house up to 10 times.[153] In a sketch of the locations of people in the tent at the time of the shooting Mr Costello identified Ms Menzies only as 'other girl'.[154] In re-examination, Mr Costello confirmed that he identified Ms Menzies in a photograph shown to him by police.[155]

89 Mr Costello recalled Mr Cross telling him that he (Mr Cross) owed Ms Pante 20 dollars.[156] Mr Costello said 'I thought he was gonna drop drugs off but that wasn't the case'.[157] Mr Costello said he did not have much of a conversation with Mr Cross. He agreed that he probably asked Mr Cross for drugs,[158] but that this was not included in his police statement.[159] He could not recall if Mr Cross and Ms Menzies smoked ice in front of him,[160] or whether he was agitated by that.[161]

90 Mr Costello agreed that he told police that Mr Cross was in the tent for about five minutes before Mr Costello left to have a shower in the shower block across the road from the tent.[162] He was there for about five minutes before returning to the tent.[163] By this time, Ms Pante and Mr Hollonds had arrived with another man with a rattail haircut whom Mr Costello had never met (this man is agreed to be Jake Fry).[164] They were congregating around Mr Hollonds' car parked approximately 20 metres from the tent on the opposite side of the road.[165] Mr Cross was with them. Mr Costello said he had no part in their conversation,[166] and did not acknowledge them on his way to the tent.[167] He agreed that nobody appeared upset, there was no arguing, and he did not observe any clothing being passed around or examined.[168]

91 Mr Costello said that when he re-entered the tent, only Ms Menzies was present. He got dressed while she was in the tent.[169] Mr Costello agreed that he told police that 'a couple of minutes later'[170] Mr Cross, Ms Pante and Mr Fry entered the tent and had a five minute conversation.[171] It was put to Mr Costello that: Mr Fry asked Mr Cross about obtaining a gun to rob a person named Harry Dickinson, who was Mr Costello's friend; Mr Costello said 'I don't care, as long as I get something out of it'; and Mr Cross said 'Nah, no way, you can't rob your mates'.[172] Mr Costello did not recall any of this conversation.[173] He said that he was not interested in the conversation between Mr Cross and Mr Fry,[174] and was not listening; however, he agreed that nobody appeared upset.[175] He agreed that the 5 x 5 metre tent was a 'confined space' with five people in it, and that everyone was 'really in each other's space'.[176] Mr Costello also said that Mr Dickinson was an acquaintance, not a friend.[177] Mr Costello denied seeing Mr Cross place a gun on the bed when Mr Cross entered the tent.[178]

92 Mr Cross, Ms Pante and Mr Fry then left the tent, after which time Mr Costello received his call from Centrelink. Ms Menzies was present. Mr Costello agreed that, in his interview with police, he said:

While they are outside I received a phone call from a bloke from Centrelink ... After about five minutes Nick and Maddie came back into the tent. I was on the phone but after a few minutes I noticed that Nick and Maddie had started arguing.[179]

93 At one stage during his evidence, Mr Costello said that the next thing to happen after he got dressed (with Ms Menzies in the tent), was that he received the Centrelink call and while he was on the phone Mr Cross and Ms Pante entered the tent.[180] In other words, at one stage he gave evidence that did not include Mr Fry entering or exiting the tent. At another stage, Mr Costello said that he was on the phone while Mr Fry was still in the tent.[181] However, he later said he was mistaken after being read the above passage from his interview with police.[182] Mr Costello said he was sitting on the bottom right hand corner of the bed (viewed from the end of the bed) while Mr Cross and Ms Pante were arguing 'back-and-forth and sometimes both at once'[183] and 'making a bit of noise',[184] and 'interrupting' his call.[185] Ms Menzies was sitting on the bottom left hand corner of the bed. Mr Costello said:

I wanted them to quieten down, 'cause I wasn't actually facing them. I was sorta faced out to the side of the tent. And, um, I turned around and telled [sic] them to quieten down and they quietened down a little bit and then start slowly raising their voices back up. This happened about three or 4 times of me turning around and telling them to be quiet ... Over, say, a minute or two.[186]

94 Mr Costello said he did not pay attention to what Ms Pante and Mr Cross were saying; they were arguing, but he did not consider it to be an angry discussion, and did not think it was going to escalate to what it did.[187] Mr Costello said that Ms Pante was moving around, 'sorta a little bit erratically I s'pose, like, stomping around and moving her arm'.[188] He said that she was 'pacing on the spot' up until the time she was shot.[189] In cross-examination, Mr Costello agreed that there was a 'build up before the shooting occurred ... over a number of minutes ... of some escalating argument .... [d]uring which the noise went up and down, before the shot was fired'.[190] Mr Costello agreed in cross-examination that he could not say what the argument was about,[191] even though he was sitting only one or two metres away[192] and their voices were raised.[193]

95 Mr Costello could not see Mr Cross clearly until he turned around a little bit.[194] After Mr Costello asked them to be quiet for the last time, '[Mr Cross] just pulled a gun out of his pocket or his waistband and shot [Ms Pante]' in the forehead.[195] Mr Costello agreed that this occurred 'instantaneously'.[196] Mr Costello said that Ms Pante just 'hit the deck. She hit the floor.'[197] In his interview with police, Mr Costello demonstrated what he meant, and said that Ms Pante:

... just sort of dropped backwards like that ... like just how someone would just drop 'cause there's nothing to her. Like, there's nothing ... holding her up. She just dropped.[198]

96 In cross-examination, Mr Costello agreed that he told police that 'I think [Mr Cross] had the gun in his right hand'.[199] Mr Costello denied that he reacted angrily to Ms Pante offering to perform oral sex on Mr Cross in exchange for drugs for Mr Costello, or that Ms Pante insulted him with a homophobic slur.[200] He denied shooting Ms Pante.[201]

97 Mr Costello said that at the time of the shooting Mr Cross and Ms Pante were standing,[202] and that Mr Cross was facing Ms Pante.[203] In cross-examination he agreed that Ms Pante was 'standing upright and facing [Mr Cross] when she was shot by him'.[204] She was in front of the door to the tent and Mr Cross was to her left.[205] The two were between one and two metres apart.[206] He told police that, using imperial measurement, Mr Cross and Ms Pante were 'three foot, two and a half foot' apart, and agreed with this estimate when it was put to him in cross-examination.[207] The shot was 'pretty much point blank' after Mr Cross stretched out his arm, being no more than 30 centimetres.[208] At one point during cross-examination, Mr Costello agreed with the proposition that Ms Pante 'was looking at [Mr] Cross straight ahead when the gun was fired'.[209]

98 Mr Costello said that, while he did not have both eyes on Mr Cross at the time of the shooting, he could see him in his peripheral vision and could 'definitely see what happened'.[210] In his police interview, Mr Costello made a demonstration of the shooting, indicating that Mr Cross' right arm was completely outstretched.[211] Mr Costello gave a similar demonstration in the witness box.[212] He observed Mr Cross 'at the furthest spot back from me [sic] peripheral vision'.[213] When asked if he was able to give a 'geometrically precise angle' of Mr Cross' arm and/or the firearm, he said, 'Yeah, I think so'.[214]

99 Mr Costello agreed that the gunshot rang out in the tent.[215] In his police interview, he said 'it wasn't really that loud, like my ears were ringing after it but I think that was just the whole scenario'.[216] At trial, he said that his ears were not really ringing, and that the phrase described his state of mind, 'Just shock'.[217] He told police that, 'It wasn't much of a noise 'cause the bloke on the phone to me didn't say anything about it'.[218] Mr Costello agreed that the gunshot was louder than a normal gun because it was shortened down.[219]

100 Mr Costello said that, after Ms Pante was shot, he took the phone away from his ear, stood up, and started 'freaking out'.[220] He was walking up and down the tent not knowing what to do.[221] He said his hands were on his head, but that he would have continued holding the phone as well.[222] In cross-examination, Mr Costello agreed that he was 'frantic' and 'panicking'[223] and that it was 'chaos' and 'frantic', and there was 'worry' and 'concern' in the tent after the gunshot.[224] He said that Mr Cross 'was just freaking out as much as I was'[225] and:

[Mr Cross] come [sic] over to me and said how sorry he was and yeah, I was then - then I was just pacing up and down the tent for probably a minute, just freaking out and not knowing what to do.[226]

101 Mr Costello said, 'I presume the bloke [Centrelink officer] was still talking and I'd sorta put my phone up to my ear and just say, 'Yep, yep, no worries'.'[227] He said he was not listening to any questions being asked,[228] but thought it was 'maybe talking about me circumstances and just general questions that they ask you to confirm the Centrelink, like to get the approval for the Centrelink payment.'[229] He agreed that he stayed on the call so that the payment would go through.[230] At trial, Mr Costello denied that he left the mobile phone on the bed at any stage; however, he agreed this was different to his committal evidence.[231] Mr Costello agreed that he told police he remained in the tent for a minute or two after the shooting,[232] and agreed that he was on the Centrelink call for 'a few minutes roughly after the shot occurred'.[233]

102 In cross-examination, Mr Costello agreed that he told police that he was on the phone to Centrelink at the time of the shooting,[234] and agreed with the proposition that he could not have been the shooter because he was busy on the phone.[235]

103 In re-examination, Mr Costello was played sections of his interview with police where he said, 'If you want to listen to ... the recording of the Centrelink call, which they probably have, you will hear the gunshot',[236] and that police would also be able to hear the argument between Mr Cross and Ms Pante beforehand.[237] In cross-examination, Mr Costello was asked why he believed the Centrelink call would be recorded. He said, 'Well, when you get a phone call from Centrelink that says, 'This phone call is going to be recorded', so ... I thought, that's why I thought it would be recorded.'[238] Mr Costello said that he was not sure why he told the police to check the recording, but that 'they'd be able to hear the gunshot on the phone call.'[239]

104 There was a brief discussion between Mr Costello, Mr Cross and Ms Menzies about whether anyone heard the shot outside.[240] The three then left the tent. Mr Costello recalled seeing Mr Hollonds' car driving off in the distance.[241] Mr Costello said that Mr Cross told him to get in his car. Mr Costello responded, 'I'm not going with ya',[242] although he agreed in cross-examination that he said, 'Mate, I can't fucking get in the car'.[243] Mr Cross replied, 'What else are you going to do?'.[244] Mr Costello said he felt intimidated by Mr Cross and agreed that he was also worried that if he stayed with Ms Pante's body, he would be in trouble for murder.[245] Mr Costello told Mr Cross, 'Yeah, well, I s'pose I'm gonna come with ya, I'm not gonna sit here in the tent with a dead body.'[246] He reluctantly got into the car. In cross-examination, Mr Costello agreed with the proposition that the call ended after a couple of minutes of being in the car.[247] He also agreed that counsel for the defence had taken him through a 'fair sequence of the events' that occurred during the call.[248] Mr Costello said that Mr Cross told him to turn his mobile phone off because it could be tracked.[249]

105 Mr Cross drove out of the Showgrounds to the entrance of the nearby racecourse carpark, from where they could see who was coming into and out of the Showgrounds.[250] Mr Costello could not recall if there was a discussion in relation to whether the police would arrive.[251] He denied receiving his call from Centrelink at this time, or that Mr Cross said to him, 'What the fuck are you doing on the phone?' after the call.[252] Mr Costello denied that he said to Mr Cross and Ms Menzies that he wanted to pack up the tent before Mr Cashion arrived.[253]

106 Mr Costello said the three then drove to the caretaker's office at the Showgrounds. Mr Cross gave Mr Costello money and asked him to pay for another night for the campsite.[254] Mr Costello went into the office and gave his details to an older man who he said was a bit hard of hearing (this man is agreed to be William Steele). Mr Costello said that Mr Steele misheard him and recorded 'Mr Brody' instead of 'Mr Costello', and incorrectly recorded one digit of Mr Costello's mobile phone number. Mr Costello did not correct either error,[255] but denied that he deliberately provided incorrect details.[256]

107 When prompted in cross-examination, Mr Costello agreed that he sent a text message to Mr Cashion at 9:13am saying, 'Crossey bought us another night man'.[257] Mr Costello denied that by using the term 'us', he was trying to give the impression that Ms Pante was still alive.[258] He said that 'us' was a reference only to himself (and not Ms Pante), being 'an Aussie slang sort of term'.[259] Mr Costello acknowledged that he did not recall the content of the message until it was read to him in cross-examination, but could remember that it 'may have been to organise something to do with the tent just to affirm that we can keep using it'.[260] He did not tell police about this message, but said that this was just a slip of memory at the time of his interview, and not a deliberate omission to avoid it painting him in a bad light.[261] Mr Costello did not receive a reply to that message.[262]

108 The three then drove out of the Showgrounds to a two dollar shop in Belmont to purchase a padlock for the tent. Mr Costello said this was Mr Cross' idea.[263] The tent provided by Mr Cashion already had a 'little lock but I suppose it wasn't sufficient'.[264] Mr Costello purchased a padlock as requested, returned to the car and gave it to Mr Cross. He recalled it being a black padlock with a yellow strip that unlocks with a key.[265] Mr Costello said that he never again had possession of the padlock and did not keep a key to the padlock.[266] He denied telling Mr Cross that the padlock should be purchased from the two dollar shop because it did not have cameras in the store.[267]

109 During examination in chief, Mr Costello described the purchase of the padlock occurring before payment of another night at the caretaker's office. When informed that this sequence was reversed in his police statement, he said that his statement was correct.[268]

110 Mr Costello, Mr Cross and Ms Menzies then returned to the Showgrounds. Mr Costello went into the tent, collected his belongings, and returned to the car. He said he was as quick as possible because he did not want to be in a tent with a dead body.[269] He said that Mr Cross got out of the car and padlocked the tent using the padlock Mr Costello had purchased.[270] They left, and then drove around Geelong. Mr Costello recalled Ms Menzies saying that they needed to cover up Ms Pante's death and Mr Cross nodding his head. Mr Costello said that he was zoning in and out, but did hear Mr Cross and Ms Menzies talking about ways to cover up the shooting, including by making it look like a suicide or burning the whole tent.[271] Ms Menzies was doing most of the talking and Mr Cross agreed with her suggestions.[272] Mr Costello agreed that he told police that at some point he said words to the effect of, 'Give me the gun, I'm going back there to shoot myself' and that Mr Cross said to him, 'Bullshit mate, you're not doing that'.[273]

111 While he disclosed this conversation in his interview with police, it was not included in his formal statement.[274] When giving evidence at trial, Mr Costello could not recall that conversation with Mr Cross, but accepted that he had a better recollection of the events when speaking to police, and what he told police was accurate and truthful.[275] Mr Costello's evidence is that he said these words (about shooting himself) because he 'didn't want to deal with the situation. It was, like, a bit far out for me, really'.[276]

112 The three eventually ended up at a house in or near Norlane. Mr Costello took his belongings out of the Suzuki Swift and put them into a white Hyundai i30 which was unconnected to the Showgrounds. [277] Mr Cross arranged this car swap. Mr Costello did not dispute that Mr Cross had previously sent him an image of the car, seeking to sell it to him.[278] Mr Costello had a conversation with Mr Cross. During examination in chief, Mr Costello said that Mr Cross told him, 'Well, obviously if the police come, tell them what happened, tell them that I [Mr Costello] didn't having anything to do with it and just tell them the truth basically'.[279] In cross-examination, Mr Costello agreed that his police statement records Mr Cross' words as 'put it all on me'.[280] When asked about the discrepancy in language, Mr Costello said that he was not sure, now or at the time he made his statement, of the precise words used by Mr Cross but understood them to mean that, once everything came out, he should tell the police that it was Mr Cross who murdered Ms Pante.[281]

113 Mr Costello and Ms Menzies got into the Hyundai i30 and parted from Mr Cross. Ms Menzies drove to a convenience store where Mr Costello purchased a few Gatorades with the money he had left after paying for another night at the campsite and purchasing the padlock. Ms Menzies then dropped Mr Costello at the North Shore Train Station.[282] Mr Costello said that he caught a train to Waurn Ponds where he purchased a paper ticket to Colac. He had to wait a couple of hours for the Colac train and slept at the station during that time. Mr Costello recalled catching the Colac train at approximately 2:30pm and arriving in Colac at approximately 3:30pm.[283] When it was put to him that there is no record of his purchasing a ticket to Colac, Mr Costello said 'it'd be on the CCTV there'.[284]

114 Once he arrived in Colac, Mr Costello walked as fast as he could to his mother's, Ms Walton's, house. He went there 'cause, I just felt like after something like that happened, I just need to go home - I hadn't been home in months'.[285] He was feeling physically and emotionally terrible as the result of continuous drug use and minimal sleep over the past three to four months, and said the previous night's sleep was not enough to keep him going without using more ice.[286] Mr Costello entered Ms Walton's house via the back door. He greeted Ms Walton and went to bed. He was woken by Ms Walton for dinner at approximately 5:30pm, and returned to bed at approximately 6:00pm. Mr Costello thought his younger brother Reagan was present for dinner but could not recall if his two sisters were home.[287]

115 Mr Costello slept through until 7:20am the next day, Tuesday 4 December.[288] He said that he stayed at Ms Walton's house and slept through the whole day.[289] Mr Costello agreed in cross-examination that Ms Walton was present in the courtroom for the entirety of his evidence at the committal hearing, including when he gave evidence about arriving home on 3 December, going to sleep, eating dinner, returning to bed and waking the next morning.[290]

116 Mr Costello denied returning to the tent after collecting his belongings.[291] He also denied lighting the tent fire or asking someone else to do so.[292]

117 Mr Costello recalled having a conversation with Ms Walton at approximately 5:00pm on 4 December. She had seen something on television about a tent fire in Geelong and asked him whether he knew anything about it.[293] Mr Costello recalled:

She sorta just thought it was a bit suss that it's all happened at once and then she had a phone call from Eli [Cashion] 'cause the police had contacted Eli and told him about the tent fire. Eli rang my mum worried that I was in the fire, I was in the tent, and um yeah, so Mum's rang - Eli's rang Mum frantic goin' where's [Mr Costello], what's [Mr Costello] been doin' and um she's like, oh [Mr Costello's] at home in bed.[294]

118 In cross-examination, Mr Costello said that Ms Walton did not initially mention that Mr Cashion had spoken to the police.[295] He thought that the first time he was informed of the conversation between Ms Walton and Mr Cashion might have been when they were driving to Geelong.[296] Mr Costello told Ms Walton that he had witnessed a murder and that Ms Pante was dead.[297] He agreed that Ms Walton asked questions about what he had seen, and did not just 'shut up shop', and that he was upfront with her.[298]

119 He could not recall if he told Ms Walton about the Centrelink call at that stage, or whether he went into much detail.[299] Mr Costello said that Ms Walton then contacted her father (Mr Costello's grandfather) who picked them up and drove them to the Geelong Police Station. Mr Costello said that he and his mother made a joint decision that he should go to the police, and while he did not need to be 'heavily persuaded' to do so, he needed to be 'somewhat persuaded'.[300] Mr Costello thought that he better hand himself in because the campsite was in his name,[301] and he would be a prime suspect.[302] However, he accepted in cross-examination that he knew that the caretaker had incorrect details for him on file.[303] He said that he 'would have told them [Ms Walton and his grandfather] my version of events from start to finish' during the drive.[304] He agreed that he spoke to a lawyer during the drive to Geelong.[305]

120 After being interviewed by police and giving a police statement, Mr Costello was released without charge.

121 Mr Costello was asked questions about his police interview and statement. He said that DSC Asciak typed up his statement; that 'it came out of my mouth, and then Thomas [Asciak] had put it into, just like a cleaner version really ...'.[306]

122 In cross-examination, Mr Costello was also asked about the transcript of his police interview. Mr Costello said that he had not read a transcript of the interview since it occurred.[307] He said that he previously had a copy of it, but did not know of anyone else, other than the police, who had a copy of it.[308] Mr Costello was not sure whether Ms Walton had a copy of the transcript at the committal hearing in her hands.[309] Counsel for the defence took Mr Costello to an excerpt from his cross-examination at the committal hearing where he was asked about seeing a copy of the transcript of his police interview:

Counsel: Have you seen a copy of it [the transcript of the police interview] today?

Mr Costello: Yes.

Counsel: Where?

Mr Costello: Mother's hands.[310]

123 In re-examination, Mr Costello was informed of the agreed fact that the Centrelink call commenced at 8:43am:

Counsel: So, I can tell you that the records we have show that the Centrelink call commenced at 8.43am, so quarter to 9 almost?

Mr Costello: Righto.

Counsel: And lasted just one second shy of five minutes?

Mr Costello: Righto.

Counsel: Is there anything you'd like to say about that in terms of that timeframe?

Mr Costello: No.

Counsel: Does that change anything for you in terms of your account of how the morning went?

Mr Costello: No.[311]

124 Mr Costello was also asked how he formed the estimates of time he gave about the events of 3 December. Mr Costello said: 'Um, just guessing, really. I wasn't timing anything, so I don't really know'.[312] He agreed that he had not had any drugs that day.[313]

125 Mr Hollonds described himself as an acquaintance of Mr Costello at the time of the shooting.[314] He had known Ms Pante for a few weeks prior to her death.[315] He met Ms Pante through Mr Costello. Mr Hollonds recalled being at an apartment above the Rheingold Restaurant in Malop Street, Geelong during the early afternoon of Sunday 2 December 2018.[316] The apartment belonged to a friend, Aaron Dannatt. Mr Cashion and Ms Pante were also present. Mr Costello arrived at the apartment at some stage during the afternoon. Mr Hollonds, Mr Cashion, Mr Costello and Ms Pante used ice whilst at the apartment.[317]

126 Not long after Mr Costello arrived, Mr Hollonds drove Mr Costello and Mr Cashion to the Showgrounds so that they could set up Mr Cashion's tent.[318] Mr Hollonds did not stay to see them set up the tent,[319] but when he returned to the site between 4:30pm and 5:00pm he saw that it had been set up.[320] Ms Pante was with Mr Hollonds when he attended at this time.[321] Mr Hollonds subsequently left the Showgrounds with Ms Pante. Mr Costello stayed at the tent.[322] Mr Hollonds and Ms Pante collected Mr Fry from Torquay.[323] During the evening, Mr Hollonds drove Ms Pante and Mr Fry to various locations and spent substantial time by himself in the car while they were at those locations.[324] Mr Hollonds, Mr Fry and Ms Pante used ice during the evening.[325]

127 Mr Hollonds reattended the campsite at the Showgrounds with Ms Pante and Mr Fry on the morning of Monday 3 December. He estimated that they arrived between 8:30am and 9:30am.[326] During cross-examination, Mr Hollonds was taken to his committal evidence where he said, variously, that they arrived as the sun was just coming up, at '7:30/8:00' and at '8:00/8:30'.[327] When asked about these varying accounts, Mr Hollonds said that it was before 9:00am,[328] and that he remembers seeing 'on the clock it was, like, eight, half past eight at some stage'.[329] Mr Hollonds said that he was 'mostly sober' by the time he arrived at the Showgrounds and that, because he was driving, he 'didn't really ... partake all that much' in the drug use during the previous evening.[330]

128 Mr Hollonds said that his reason for attending the Showgrounds was that Ms Pante needed to see Mr Cross.[331] Ms Pante said that she owed Mr Cross money and had brought some clothing that she intended to use in some sort of transaction with Mr Cross.[332] That clothing was comprised of a few jackets in garbage bags in Mr Hollonds' boot.[333] Mr Hollonds said that Ms Pante had acquired the jackets in Bronte Court, St Albans Park the night before in exchange for Xanax provided by Mr Fry.[334]

129 Mr Hollonds recalled Mr Fry sitting in the front passenger seat and Ms Pante in the back seat when they arrived.[335] Mr Hollonds saw a silver Suzuki Swift parked directly in front of the tent, facing the same direction as his car.[336] He recalled Ms Pante exiting his car and talking to Mr Cross.[337] Mr Fry exited the car at some stage and also spoke to Mr Cross.[338] Either before or after Mr Fry exited the car,[339] Mr Hollonds relocated the vehicle so that it was closer to the tent and off the roadway.[340] After it was moved, the nose of the car was about even with the tent, with the passenger door closest to the tent.[341] Mr Hollonds marked the two locations of the car on an image of the campsite.[342] He told police that the car was parked 'approximately seven or eight metres away from the tent on the same side of the road as the tent'.[343] At trial he said that after moving the car, he was parked 'a few metres away'.[344]

130 Mr Hollonds said that he had his head down looking at his mobile phone for most of the time he was parked at the Showgrounds, including at both locations where the car was parked.[345] He said that he was more focused on his mobile phone than what was going on outside.[346] He does not recall seeing Ms Pante enter the tent on any occasion prior to the final time she entered,[347] and does not recall seeing Mr Cross enter the tent.[348] He never saw Mr Fry enter the tent,[349] and never saw Mr Costello leave the shower block.[350]

131 Mr Hollonds did recall seeing Mr Cross trying on the jackets from the boot of the car at the first location where he was parked.[351] He could not hear the conversation between Ms Pante and Mr Cross, but said that it 'didn't seem tense' at that time.[352] In cross-examination, Mr Hollonds said that the interactions between Mr Cross and Ms Pante at this stage were 'amicable', and there was no 'ag[g]ro' or 'animosity'.[353] In cross-examination, it was put to Mr Hollonds that Mr Cross never tried on any clothing. Mr Hollonds disagreed with this.[354]

132 Sometime later, Ms Pante entered the back seat of Mr Hollonds' car to leave the Showgrounds. Mr Fry was in the front passenger seat at that time.[355] Almost immediately after entering the car, Ms Pante exited again and headed to the tent.[356] She left her mobile phone on the back seat.[357] Mr Hollonds said her body language 'seemed agitated' at this time,[358] and that he could tell she was 'angry about something'.[359] However, he could not remember if Ms Pante said why she was returning to the tent.[360]

133 In cross-examination, Mr Hollonds agreed that he did not notice anything wrong with Ms Pante's demeanour before, or at the time, she entered the car to leave the Showgrounds. He said that he first noticed her changed demeanour when she exited the car for the last time. In re-examination, Mr Hollonds confirmed that it was upon Ms Pante exiting the vehicle that he noticed her changed demeanour. He said she 'seemed fine when she got in but then she seemed irritated like when she got out'.[361]

134 Mr Hollonds saw Ms Pante talking to someone through the door to the tent, 'almost like they were arguing'.[362] She then stepped inside the tent, and that was the 'last time I saw her'.[363] There was nobody outside the tent at that stage.[364] In cross-examination, Mr Hollonds agreed that Ms Pante's interactions through the tent sounded like a 'pointed conversation', but not an argument.[365] He said that he could hear 'muffled voices'.[366] In re-examination, Mr Hollonds said that the muffled voices included 'a female voice and a male voice at least'.[367] Mr Hollonds said that he thought his windows were wound up at that point, although the passenger side window 'might have been down a crack' as Mr Fry 'might have been smoking a cigarette or something'.[368] He agreed that his police statement says that he 'saw Maddie walk up to and reach the entry of the tent and then peer inside then said something to someone inside the tent but I couldn't hear the words clearly because my car windows were up', and accepted he was being truthful at the time he gave the statement.[369]

135 Mr Hollonds said that he and Mr Fry sat in the car 'for a few minutes tops'[370] before they heard what sounded like a gunshot.[371]

136 During examination in chief, he said that Ms Pante could have been in the tent for anywhere between one to five minutes before he heard the gunshot.[372] In cross-examination, Mr Hollonds was taken to his police interview and statement where he said that the gunshot occurred 'five seconds' after Ms Pante entered the tent. In response, he said that, 'on further ... reflection ... I can't accurately give a time - like, a timeline of - as minutes 'cause there was a lot going on in that time',[373] and that he may have used 'five seconds' as a turn of phrase to indicate that Ms Pante was not in the tent for very long before he heard the gunshot.[374] He agreed that the first time he qualified his statement about 'five seconds' was at a case conference with prosecution lawyers in March 2022.[375] In cross-examination, it was put to Mr Hollonds that the gunshot occurred somewhere between 30 seconds and one minute after Ms Pante entered the tent, and he replied 'I can't be sure of the amount of time that passed between her leaving the car and returning to the tent'.[376] In re-examination, Mr Hollonds said that it 'definitely wasn't at [sic] 5 seconds, it was probably longer than that',[377] and that, 'As I remember it now, it was, like, minutes, not seconds'.[378]

137 Mr Hollonds and Mr Fry briefly discussed what they had heard and decided to leave.[379] Mr Hollonds reversed the car, turned it around and headed towards the exit to the Showgrounds. He recalled looking in his rear view mirror, seeing Mr Costello, Mr Cross and a female leaving the tent.[380] He slowed down the car at this point, but did not stop.[381] Mr Hollonds and Mr Fry drove to Torquay and waited to hear 'back from anyone' about what had happened.[382] They realised that a mobile phone (which Mr Hollonds' believed to be Ms Pante's mobile phone) was still in the car.[383] Mr Hollonds and Mr Fry used ice during the afternoon.[384] Mr Hollonds and Mr Fry reattended the campsite at some stage during the afternoon to return Ms Pante's belongings that were still in the car.[385] Mr Hollonds found that the tent was padlocked, but did not observe anything 'out of the ordinary'.[386] Mr Hollonds and Mr Fry then left.

138 Mr Hollonds and Mr Fry reattended the Showgrounds at around midnight and saw the tent on fire.[387] Mr Hollonds concluded that the fire had been burning for some time, as there was no canvas left from the tent and the mattress had burned away to springs.[388] As Mr Hollonds drove past the tent, Mr Fry pointed out an outline of a body at the front of the tent.[389] Mr Hollonds dialled 000 and notified emergency services of the fire.[390] The Court was played a recording of the 000 call, and Mr Hollonds confirmed that it was him.[391]

139 Mr Hollonds and Mr Fry left the Showgrounds and went to McDonalds in Belmont to figure out what to do.[392] They then travelled to another friend's house. Mr Hollonds then drove home to Torquay, where he woke his father and told him what had happened.[393] Shortly after, police attended the house.[394]

140 Mr Fry was homeless, unemployed and had a significant addiction to ice in early December 2018.[395] He used approximately five points of ice daily (one point being 0.1 grams), sometimes more, and was spending around 800 dollars a week on ice.[396] His only source of income was selling drugs.[397] Mr Fry agreed that he has 'hazy memories' of the day of the shooting[398] and 'gaps in [his] memory about what occurred at the [S]howgrounds.'[399]

141 Mr Fry met Ms Pante approximately one month prior to her death through mutual friends.[400] He recalled spending time with her because he was homeless and did not have anywhere else to go.[401] He bumped into Ms Pante on 2 December at Kmart in Belmont where they exchanged mobile phone numbers.[402] Later that day, Ms Pante collected Mr Fry in a car driven by a person Mr Fry knew as Jesse (this person is agreed to be Jesse Hollonds). Mr Hollonds drove the two around Geelong while Mr Fry sold ice and the three used drugs.[403] Mr Fry agreed that he told police the three spent time playing pokies at the Grovedale pub during the night.[404] He thought he was drinking alcohol during that time.[405]

142 Mr Fry was in the backseat of Mr Hollonds' car when they arrived at the Showgrounds on the morning of 3 December.[406] Ms Pante was in the front passenger seat. Mr Fry was just waking up. In examination in chief, he said that he did not know whose idea it was to go to the Showgrounds;[407] however, in cross-examination, he agreed with the proposition that it was Ms Pante's idea to go to the Showgrounds.[408] Mr Fry agreed that he told police their time of arrival was 10:00am or 11:00am.[409] He agreed he was in a 'very poor state' due to his drug and alcohol use.[410] Mr Fry believed that he had ice with him at that time.[411]

143 Mr Fry said Mr Hollonds parked about 10 metres away from the tent.[412] At trial, he marked that location on a photograph of the campsite.[413] Mr Fry said the car did not move again until after the time of the gunshot.[414] He did not recall getting out of the car at all during their time at the Showgrounds; however, he acknowledged his statement to police that he moved from the back seat to the front seat at some point, and believed that is what he would have done.[415]

144 Mr Fry said he was not involved in a discussion with anybody outside the car at any time.[416] He never entered the tent,[417] and did not see Mr Cross at any stage.[418] Mr Fry told police that when he changed seats in the car he 'saw inside the tent from where I was standing. I just saw what looked like a raised bed.'[419] In cross-examination, he agreed that the only way he knew that there was a raised bed was by seeing it from outside the tent.[420]

145 Mr Fry denied that he knew a man named Jeremy Bingham who also went by the moniker 'Man with the ham'; that he owed that person a drug debt; or that he was concerned about Mr Bingham coming after his girlfriend.[421] He said that he had never heard of that person.[422] He also denied having discussions with Mr Cross about using Mr Cross' firearm to rob a drug dealer called Harry Dickinson, or that Mr Cross threw a firearm onto the bed in the tent while Mr Fry was present.[423] However, Mr Fry accepted that he had difficulties remembering the relevant period of time due to his drug use, and that he could not be certain about whether he had a drug debt as at 2 December 2018.[424]

146 Mr Fry said that Ms Pante did not have a bag of clothes and there was no time during which she or anyone else was looking at, trying on, or examining clothes.[425] He agreed that, to the best of his recollection, the windows in the car were up.[426]

147 Mr Fry recalled Ms Pante exiting the car and entering the tent. He said, 'I heard discussion, it wasn't going on for very long and then Maddie came back to the car'.[427] He thought the discussion was between Ms Pante and a male, but he could not be sure who it was and could not understand what they were saying.[428] Mr Fry said, 'there might not have been an argument, but I could definitely hear voices and - it sounded - maybe not an argument, but it certainly was a heated discussion'.[429] Ms Pante then returned to the car from the tent. Mr Fry recalled her looking angry. When he asked her what was wrong, she replied, 'No, nothing', then left the car and returned to the tent.[430] Mr Fry disagreed with Mr Hollonds' recollection that Ms Pante was not upset when she returned to the car, and only became irritated after she was in the car.[431] According to Mr Fry, 'she even seemed irritated walking to the car'.[432] Mr Fry agreed that his police statement says that Ms Pante left a bag and gold Oppo mobile phone in the car.[433]

148 After Ms Pante re-entered the tent, Mr Fry heard what 'sounded like the argument just kept going on' and further 'heated discussion' for about five to 10 seconds, before what sounded like a gunshot.[434] In cross-examination, Mr Fry agreed that he would not dispute a time of 30 seconds to one minute between Ms Pante entering the tent and the gunshot.[435] Mr Fry said that Mr Hollonds drove off 'straightaway'.[436] Mr Fry looked in the rear view mirror and saw two men and a woman leave the tent, none of whom he recognised.[437]

149 Mr Fry and Mr Hollonds continued to drive around and take drugs. Mr Fry said he 'really can't remember what we did for the day'.[438] He accepted his statement to police that 'I used gear ... to try to block out what I'd seen and heard'.[439] However, he did recall coming back to the Showgrounds later in the day with Mr Hollonds because 'Jesse [Hollonds] was just worried about the whole situation ... and wanted to go back to see what was going on'.[440] When they arrived, 'there was no one there and there was this lock on the tent'.[441] He does not recall the time, but thinks it might have still been daylight.[442] The two returned to the Showgrounds during the night and saw the tent on fire.[443] Mr Fry could not recall whether any of the tent canvass was left.[444] They drove away, Mr Hollonds called the fire brigade, and Mr Fry was dropped off at McDonalds in Belmont. Mr Fry did not know what happened to the mobile phone left by Ms Pante in the car, and denied taking it with him.[445]

150 Mr Steele is an elderly man who was employed as the caretaker of the Showgrounds in December 2018.

151 He recalled seeing two men erecting a 'glamping tent' on Sunday 2 December. He asked them to shift the tent down a couple of sites.[446] The owner of the tent told Mr Steele that he had a business putting up tents along the coast.[447] He saw the other man again the next day when that man told him he wanted to pay for an extra night. Mr Steele informed him that the first night had not been paid for.[448] The man paid for the second night. Mr Steele was shown a copy of a receipt and agreed that it recorded that transaction.[449]

152 In cross-examination, Mr Steele agreed that recording the names of persons at the campsite was an important part of his job.[450] He agreed that the man who paid for a second night gave his surname as 'Brody', and that is why he wrote 'Mr Brody' in his ledger.[451] He agreed that his practice was to record people's surnames, not their Christian names.[452] He agreed that the man also gave a telephone number with one digit short.[453]

153 In cross-examination by the prosecution under s 38 of the Evidence Act, Mr Steele disagreed that it was possible the man gave him the full 10 digits of his mobile phone number, or that Mr Steele did not hear him or did not record one of those digits.[454] He denied that the man gave his name as Brodi Costello.[455] He also said that the man 'was virtually leaning on the desk when I wrote the receipt out'.[456]

154 Ms Walton has six children.[457] Mr Costello is Ms Walton's eldest son.[458] Ms Walton is a disability support worker.[459] When asked to describe her relationship with Mr Costello in December 2018, Ms Walton said:

It was - it was good. Um, I didn't see [Mr Costello] that often, it was more through text message and on the phone, um, but he was my son and I loved him, like, it was good - good relationship just he was in Geelong, I was in Colac.[460]

155 At the time, Ms Walton was living in Colac with her daughter Rory, aged 14, and her son Reagan, aged nine.[461]

156 When Mr Costello first arrived home in early December, Ms Walton recalled him coming through the back door,[462] greeting her and heading straight to bed.[463] Ms Walton said that it was common for people to use the back door of her house to enter it.[464] Ms Walton was not expecting Mr Costello.[465] She said the time was after 3:00pm (as she did not finish work until then), and before 5:00pm (because she had not started cooking tea for her children).[466] She worked no more than 10 minutes from home,[467] and had regular work hours at the time.[468]

157 In cross-examination, Ms Walton agreed that she had no specific recollection of the time she started cooking tea that evening.[469] She was also taken to evidence she gave at a pre-trial hearing under s 198B of the Criminal Procedure Act ('s 198B hearing') where she agreed that she had no specific recollection of what was happening in the house before Mr Costello arrived. Ms Walton disagreed with the proposition that she was lying about Mr Costello being at her house for dinner at or around 5:00pm on 3 December and that, if Mr Costello arrived that night, it was hours later.[470]

158 Mr Costello later joined his mother for tea before returning to bed.[471] She agreed in cross-examination that she went to bed at 8:30pm.[472] Ms Walton next saw Mr Costello the following morning when she checked on him and saw that he was still asleep.[473] She checked on him twice: once when she woke up at around 6:30am and then before she left for work around 8:30am.[474] In re-examination, Ms Walton said that 'after having six kids, you, sort of, hear most noises that - most noises will wake you up through the night, like, a light sleeper'.[475]

159 Ms Walton next saw Mr Costello when she returned from work just after 3:00pm.[476] She recalled him being on the couch[477] and said that she would have spoken to him, but could not recall about what.[478] When asked about what subsequently happened, Ms Walton said:

Well then we would've had tea, and then [Mr Costello] said to me that he'd witnessed a murder. Um, I was quite shocked, didn't know what to do, so I've called my dad. Um, and from there, we decided to take him straight to the Geelong [P]olice [S]tation.[479]

160 In cross-examination, Ms Walton agreed that Mr Costello's saying he had witnessed a murder was 'completely unprompted',[480] that she could not recall quizzing him about anything she had seen in the media,[481] and that she had not been speaking to him about his movements.[482] Ms Walton agreed that she had no knowledge at that time of a tent fire at the Showgrounds.[483] In re-examination, Ms Walton was read Mr Costello's evidence at the committal that 'Mum said she saw something on the news, looked at me and could tell I was like, worried, and so I told her what happened'.[484] Ms Walton said she had no recollection of hearing or reading that evidence before.[485]

161 Ms Walton said that Mr Costello did not want to tell her much more about the murder, because he did not want to involve her in it.[486] Ms Walton said that Mr Costello did not give her his version of events at any time before they arrived at the Geelong Police Station,[487] and she agreed that she did not press him for answers.[488] She could not recall what his demeanour was like when he disclosed that he had witnessed a murder.[489]

162 Ms Walton said that she and Mr Costello went to her father's house within 10 to 20 minutes of Mr Costello telling her about witnessing the murder, and then completed the hour long trip to the centre of Geelong.[490] On the way, Mr Costello made a phone call to a lawyer at the suggestion of his grandfather.[491] In cross-examination, Ms Walton denied that she had to 'persuade' Mr Costello to go the police, but agreed that the idea was hers and her father's.[492]

163 Ms Walton agreed that Mr Cashion was not a friend of hers.[493] She had no recollection of having a conversation with Mr Cashion before Mr Costello disclosed to her that he had witnessed a murder,[494] and agreed that she never disclosed such a conversation to police.[495] Ms Walton said she would have disclosed it if she remembered, but said that she was 'in shock with what was going on'.[496] When informed about a phone record of a call from Mr Cashion to her number at 4:36pm on 4 December,[497] Ms Walton repeated that she did not recall speaking to Mr Cashion, or Mr Costello speaking to Mr Cashion,[498] but said that it would either have been her or Mr Costello who spoke to Mr Cashion on that call.[499]

164 Ms Walton also had no recollection of making a call to Mr Cashion's number at 8:00pm, or receiving another call from Mr Cashion's number at 8:27pm that evening,[500] and suggested that he 'would've only been ringing to talk to [Mr Costello]'.[501] When asked if Mr Costello used her phone on 3 or 4 December, Ms Walton said he may have, but she did not remember.[502]

165 When asked in cross-examination whether she had spoken to Mr Costello about his evidence in this case, Ms Walton said, 'No. we were told not to speak about it. The last I heard from [Mr Costello] was this morning and he said, 'Just tell the truth, Mum.''[503]

166 Ms Walton agreed that she 'most likely would have' read Mr Costello's police statement and record of interview after they were given,[504] although at the time of trial, could not remember having done so.[505] She was then taken to her s 198B hearing evidence, where she agreed that she had read those documents in the days or weeks after they were made. Ms Walton said that, if she gave those answers at the time, they would have been truthful.[506] She did not have a particular memory of holding a transcript of Mr Costello's interview at the committal hearing, but said she would not dispute it.[507]

167 In re-examination, Ms Walton volunteered that her 'last memory of reading [Mr Costello's] statement was when we were here, just last time in court. I read it then a little bit, while he was in court.'[508] When asked to clarify what occasion she was referring to, it was clear that Ms Walton was referring to the time when Mr Costello gave evidence during the original jury trial and in a pre-recorded hearing in the absence of the jury in March 2022.[509]

168 Ms Walton did not make a police statement until 6 May 2021. She agreed that she could not independently recall the date or day of the week Mr Costello came to her house in December 2018 when she gave her statement.[510]

169 Mr Cashion has known Mr Costello since primary school.[511] He was in 'pretty regular' contact with Mr Costello in December 2018,[512] and they continue to be friends.[513] Mr Cashion was running a 'glamping' business at the time with his mother.[514] 'Glamping' refers to 'glamorous camping'[515] and involves providing special tents each with room for a queen size mattress and appliances.[516]

170 Mr Cashion recalled seeing Mr Costello on the afternoon of 2 December at an apartment in the Geelong CBD belonging to Mr Dannatt.[517] Mr Costello had been unable to secure accommodation for that night, so Mr Cashion offered to set up a tent for him.[518] Mr Cashion could not recall Ms Pante or Mr Hollonds being present.[519] He said that he had not been using ice for the past couple of weeks.[520] However, he agreed that he was using MDMA for nightclubbing,[521] and that he might have asked Mr Costello for heroin on 30 November 2018.[522] When shown text messages exchanged with Mr Costello during that period, Mr Cashion agreed that he 'possibly did' use ice at that time;[523] however, he denied that his previous denials constituted a lie.[524]

171 The two went to the Showgrounds and set up a tepee-like tent, which was 5 x 5 metres in size, and three metres tall at the centre.[525] The process took about an hour.[526] Mr Cashion supplied a queen-sized mattress, appliances, including a fridge, bedside tables, and linen.[527] Mr Cashion believed that Mr Costello 'would have' paid for the night's accommodation at the front office.[528] He recalled an interaction with a man in his fifties who he thought was staying at the Showgrounds 'long term'.[529] After the tent was set up, the two purchased a few items from Kmart and Mr Cashion parted ways with Mr Costello.[530] His next contact with Mr Costello was a single text message from Mr Costello the next day indicating that the campsite had been paid for another night.[531] He did not reply to that message.[532] He did not reattend the campsite that day, or in the next two days.[533]

172 Mr Cashion said his next communication in connection with the tent was a call from the Geelong Police Station on Tuesday 4 December advising that there had been a fire at the Showgrounds.[534] He received that call just before entering a class as part of a study program he was attending.[535] At his s 198B hearing, Mr Cashion estimated the time to be 8:10am.[536] When shown phone records that indicate the call was at approximately 12:30pm,[537] Mr Cashion accepted his estimate was wrong and during re-examination said, 'I could have ... started in the morning and I was outside at recess or something'.[538]

173 Mr Cashion recalled being told there was a body in the tent;[539] however, he did not recall being told it was a female body during the call.[540] He accepted that he was told that it was a female body later that day.[541] Mr Cashion said that he did not recall receiving information about the tent fire from anyone but the police. Mr Hollonds sent him a message inquiring if Mr Cashion had the encrypted messaging application Wickr, but he did not reply.[542]

174 Mr Cashion estimated that he attended the Geelong Police Station between 15 minutes and half an hour after being contacted.[543] He gave a statement to DS Weaver. Mr Cashion then tried unsuccessfully to reach Mr Costello by phone. He did not get through to Mr Costello as Mr Costello's mobile phone was turned off.[544] Mr Cashion then called Ms Walton and spoke to her briefly; she said Mr Costello was with her.[545] Ms Walton passed the phone to Mr Costello, who Mr Cashion recalled:

... was a bit beside himself and sort of not being very responsive. And I'd informed him that I'd been in and had to make a statement, and asked him what had happened, 'cause I was a bit clueless.[546]

175 Mr Cashion said that Mr Costello informed him that Mr Cross had shot Ms Pante.[547] Mr Cashion explained that he had been in for questioning and said that Mr Costello probably needed to come in for questioning himself and make a statement.[548] Mr Cashion could not recall how the call ended; however, he did not have any further communication with Mr Costello that day.[549] Mr Cashion said that Mr Costello did not say anything suggesting that he (Mr Costello) was responsible for Ms Pante's death.[550]

176 In cross-examination, Mr Cashion agreed that the police had not given him much information and that, before he spoke to Mr Costello, he was concerned that it may have been Mr Costello's body in the tent.[551] Mr Cashion's recollection was that he called Mr Costello in the presence of DS Weaver,[552] and then informed DS Weaver that Mr Costello and Ms Walton were on their way to the Geelong Police Station.[553] He then told police that he would be at Mr Dannatt's apartment.[554]

177 In cross-examination, Mr Cashion was shown a copy of his phone records from 4 December 2018.[555] He agreed that he spoke to Mr Dannatt at 10:31am and again at 11:00am, and that he left a voice message for Mr Hollonds at 11:09am. Mr Cashion attempted to call Mr Costello at 11:45am. The records indicate that DS Weaver left Mr Costello a voice message at 12:29pm and that Mr Cashion had a call with DS Weaver at 12:33pm that lasted two minutes and 54 seconds. Mr Cashion attempted to call Mr Costello again at 1:37pm. He called Ms Walton at 4:36pm, and that call lasted for six minutes and 52 seconds.

178 Ms Callison was travelling around Victoria in a caravan with her husband John in early December 2018. They were staying at the Showgrounds at the time of Ms Pante's death. The Callisons provided dashcam footage of the Showgrounds, which captured the glamping tent before the fire.[556]

179 Ms Callison made a statement to police on the morning of Tuesday 4 December. When she returned home from the caravan trip, Ms Callison separately produced a detailed set of typed notes which she provided to police on 24 January 2019.[557] Ms Callison said that she offered to make the notes after learning that the case might turn into a homicide investigation.[558] She produced the typed notes from rough hand written notes made together with her husband in Geelong,[559] and was also assisted by entries made in her journal.[560] In addition, Ms Callison 'marr[ied] up bank records, receipts and phone records to create accurate timings'.[561] Ms Callison said that the notes were accurate 'as far as we could remember'[562] and that she had experience with notetaking when she was involved in administration and training at the State Emergency Service.[563]

180 Mr and Ms Callison arrived at the Showgrounds at approximately 1:45pm on Sunday 2 December.[564] They ultimately set up their caravan near the shower block.[565] After they returned from shopping that afternoon, Ms Callison noticed two men setting up what, 'Looked like a circus tent',[566] three sites down from their caravan:[567]

[T]here was one young man that I made a comment to him as I was passing the tent, saying it looked like hard work. And he replied 'Yeah'. He was a young man approximately about 20 with um, dark shoulder length hair. And the other man was around the other side of the tent hammering in pegs and he didn't speak. Um, he was a thin build man with spikey-looking blonde hair.[568]

181 Ms Callison said that the tent was 'so large, it just looked out of place there.'[569] She said she did not stop to talk to the man with dark hair when she made the comment about hard work.[570] She only 'paused briefly'.[571] On returning to the caravan, she suggested to Mr Callison that he speak with the two men to inform them about the system the Callisons use to insert their tent pegs (using a drill); however, he did not do so, as they were heading out for the afternoon.[572]

182 At trial, Ms Callison said that she saw the man with the dark hair on one more occasion.[573] That sighting is also recorded in her police statement made on 4 December 2018:

I did not see any person connected to the tent until Sunday afternoon. I was heading to the toilet when I saw the same male who had been banging the tent pegs in the day before. He was heading to the male toilets. He had quite a large amount of clothes in his arms. The clothes looked neatly folded; the amount of clothes he was carrying seemed out of the ordinary.

We crossed paths, but he was slightly ahead of me. We did not converse. There was no other person with him. When I came out of the toilet, I didn't see anyone else, and just walked back to my caravan.[574]

183 Her police statement records the sighting as occurring on Sunday afternoon, whereas Ms Callison's typed notes record the sighting at approximately 5:15pm on Monday 3 December:

On arrival back at the GSG [Showgrounds] notice we had no power. John went down to the power box to find the switch had been turned off.

I went to the amenities block and a young man was heading towards the men's amenities carrying a lot of neatly folded items but I did not speak to him at this time because he was almost at the amenities block door. (I thought this was strange as men usually only take their bag and a towel with them)[575]

184 Ms Callison agreed in cross-examination that prior to making her formal police statement she told the police officer who came to her caravan that she had seen a man with a large quantity of clothing on Monday.[576] Ms Callison also confirmed that her sighting was of the same man she had seen banging in the tent pegs[577] (as recorded in her police statement) and that it occurred the following afternoon, being the Monday afternoon[578] (as recorded in her typed notes). She said the phrase 'until Sunday afternoon' in her police statement was therefore an error, and should read 'until Monday afternoon'.[579] Ms Callison said the sighting occurred at the same time Mr Callison was investigating a power outage,[580] after they visited a Woolworths on their way back home from the Bellarine Peninsula at 4:43pm (as recorded in her typed notes).[581] She said the sighting could have been anywhere between 5:15pm and 7:30pm.[582]

185 Ms Callison agreed in cross-examination that what caught her eye about the young man, other than recognising him, was that his carrying clothes 'looked out of the ordinary' to her.[583] She demonstrated with her arms outstretched that 'he had all the clothes on his arms, folded across like that'.[584]

186 When asked about the angle at which she observed the young man, Ms Callison said:

From memory, and we're talking back three years now. From memory, I'm walking down, the amenities block is on my right-hand side. And he's come through from the tent. He just looked, glanced, and then carried on, and I carried on. There was no - there was no interaction at that time. It was just a brief turn of the head and walk on, from memory.[585]

187 The prosecution was granted leave to cross-examine Ms Callison under s 38 of the Evidence Act about her sighting of the young man on the Monday afternoon. When it was put to her that the person with the neatly folded clothes was not the person who she saw banging in the tent pegs, Ms Callison said, 'No, I feel very confident it was the same person'.[586] When it was pointed out that neither Ms Callison's police statement nor her typed notes record the man 'coming from the tent', Ms Callison said, 'I saw him come out of the tent, that's - I obviously haven't gone into full detail there, but he definitely came from the tent',[587] and subsequently, 'I know he did'.[588]

188 The entirety of Ms Callison's typed notes were tendered into evidence.[589] They record that, on the morning of Monday 3 December (ie, before Ms Callison's second sighting of the young man) at approximately 8:30am:

John went to the amenities block where he spoke to the young man (who had been erecting the circus tent) who had arrived for a shower dressed only in his underwear. John said he could go ahead of him as he would have a shave first. The young man had come out of the circus tent. The young man said he was from Colac Victoria and was not working at the moment - they had a laugh about the tent calling it a circus tent and the [sic] how large it is.

189 Mr and Ms Callison left the Showgrounds at 9:10am or 9:15am on Monday 3 December to meet friends in Geelong.[590] Ms Callison does not recall anything that attracted her attention that morning before they left the Showgrounds.[591] The last time Ms Callison saw the tent intact was on Monday night at approximately 9:30pm or 9:45pm.[592] In the early hours of Tuesday morning at about 3:20am, Ms Callison was informed that the tent had burnt down and someone was deceased.[593]

190 As noted above, Mr Callison was travelling around Victoria in a caravan with his wife Diana in early December 2018. Mr Callison estimated that their caravan was four or five sites down from the large tent which he agreed was like a 'miniature circus tent'.[594] He described the two men erecting the tent as follows:

[O]ne was tall, fairly heavy set. Um, blondish hair. And the other was a, um, a tall young man, but he was, um, a similar build. Long dark hair and moustache.[595]

191 Mr Callison said that he recalled a woman's voice emanating from the tent later on the Sunday afternoon.[596] Mr Callison was granted leave to refer to his police statement to refresh his memory.[597] He confirmed that he saw the man with the dark hair and moustache at the shower block at about 8:00/8:15am the next day:[598]

[H]e seemed to be in a bit of a - he - wanted to get on with it. He - he was ready to go for a shower, so I said, 'You use the shower as well' limited, um, facility [sic] and I said I'd have a shave while he had his shower.[599]

192 Mr Callison said they had a brief conversation during which the man said he had put up the tent, that he was not working, and was from Colac.[600] He did not see the man again after they parted ways.[601]

193 Mr Callison said there were two power outages while they were camped at the Showgrounds: in the early hours of 4 December at the time of the tent fire, and one outage prior to that when some campers unplugged the power.[602] On the first of those occasions, he went to investigate and reconnected the power.[603] At trial, Mr Callison could not recall the time of the first outage. After referring to his police statement, Mr Callison agreed that 'with the police, I told them it was - it was in the evening and not in - not early afternoon. That - that must be my recollection at the time'.[604] The specific estimate he gave to police was 9:00/9:30pm, being the time when the Callisons returned from a Christmas light display.[605]

194 Mr Barker met Mr Cross through his long-time friend, Mr Sell.[606]

195 Mr Barker recalled receiving a telephone call from Mr Sell after 10:00pm in early December 2018.[607] Mr Barker was on a late train home from work.[608] It was Mr Barker's recollection that Mr Sell said he was driving around South Melbourne and asked Mr Barker if he wanted a lift home.[609] Mr Barker was living in Kurunjang at the time.[610] They subsequently met up near Footscray Station,[611] where Mr Sell collected Mr Barker in his Mercedes.[612]

196 When they arrived at Mr Barker's house, Mr Barker returned a T-shirt to Mr Sell that he had left there, and Mr Sell asked Mr Barker if he could leave a couple of jerry cans at his place.[613] Mr Sell gave as a reason that the boot of his Mercedes was really small.[614] Mr Barker described the jerry cans as 20 litres in volume, plastic and red with yellow lids.[615] One of the jerry cans had black and grey spray paint on it.[616] Mr Sell left them next to the front gate and, after he had left, Mr Barker put them in his shed.[617]

197 Mr Barker said that he next saw Mr Sell at about 5:00/5:30pm the following day.[618] He arrived home from work and his partner at the time said that Mr Sell and Mr Cross were out the back.[619] He then went outside and saw Mr Sell, Mr Cross, and a woman who he was later informed was Ms Menzies.[620]

198 Mr Sell was occupied with his Mercedes,[621] and Mr Cross was cleaning out a car,[622] which Mr Barker identified in his police statement as a white Hyundai hatchback.[623] Mr Barker said that Mr Cross:

... reckons he didn't like the floor mats 'cause they were too, like, a deep-dish type thing and he left them there at my place and everything else, he just, sort of, cleaned the car out and, yeah, pulled things out and put things back.[624]

199 Mr Barker did not recall anything being out of the ordinary and said that the visitors did not smoke ice whilst at his house.[625]

200 On 8 January 2019, Mr Barker made a statement to police about these events and took DS Farrell to his house, where DS Farrell collected the jerry cans and car floor mats.[626]

201 Mr Barker was informed that Mr Sell's call to him occurred on the evening of Tuesday 4 December 2018,[627] which he did not dispute. It was then put to him that he was mistaken about the time he saw Mr Sell and Mr Cross the following day, given other evidence that Mr Sell and Mr Cross were in Sydney at 9:00pm that evening. Mr Barker said, 'No, I'm definitely sure it was in the afternoon'.[628]

202 In cross-examination, Mr Barker agreed with the proposition that Mr Sell, Mr Cross and Ms Menzies left his house at about 9:00pm, but added the caveat, 'Give or take'.[629] He also agreed with proposition that the day on which he saw Mr Sell, Mr Cross and Ms Menzies could have been the day before his call with Mr Sell, being Monday 3 December 2018.[630] However, when that proposition was fully elaborated during re-examination, he said that the visit 'was definitely after'[631] the day he received the call from Mr Sell.

203 Ms Purdie met Mr Cross through her partner, Geoffrey Evans.[632] Ms Purdie and Mr Evans have two children together, and a third child is in their care.[633] Her first child was born in September 2017 and her second in 2020.[634]

204 Ms Purdie saw Mr Cross in possession of a firearm in October 2018.[635] She described it as a '22, um, it had a brown handle that was made out of wood with a silver, like, end on it'.[636] She demonstrated its length in the witness box, which defence counsel agreed was approximately 20 centimetres.[637] Ms Purdie agreed that she and Mr Evans had retrieved the firearm from someone for Mr Cross in October 2018 after Mr Cross said that he needed it back because it was not his, and that he was also in trouble.[638]

205 Ms Purdie said that, on Sunday 2 December 2018:

... [Mr Cross] showed up in the silver Suzuki Swift, it was reversing down our driveway. Um, he got out, we had a conversation with him that day about, you know, just general life. We caught up, he showed [Mr Evans] and I a photo of another car, the - the car that was found in Sydney with them, um, otherwise, we just caught up, we had a general conversation. He was just there to see us from what I knew.[639]

206 Ms Purdie said that, two days before Mr Cross was arrested, she received three messages from him on Facebook between 10:30am and 11:00am.[640] One said, 'Love youse all, visit me soon', another said, 'You know nothing about the 22', and the third said, 'You know nothing about the Suzuki Swift'.[641] In her police statement, Ms Purdie said the third message was 'Forget all about the Suzuki Swift'.[642] Ms Purdie said the messages:

... came through on a - like a secret messenger chat. I'd never experienced before. Once [Mr Cross] had sent the message and I replied, his message that he sent before mine disappeared and then he'd read my message and my message would disappear when his next message would come up. And they just all disappeared when we'd finished having the conversation. I'd click out of it and I couldn't get back into it.[643]

207 In cross-examination, Ms Purdie confirmed that she had never used the secret messenger chat function on Facebook with Mr Cross before that day.[644]

208 As noted above, Mr Evans is Ms Purdie's partner. He became friends with Mr Cross after they met through work in or about 2013.[645] Shortly after the birth of Mr Evans' first child in September 2017, Mr Cross visited. When the two went into the backyard to smoke, Mr Cross 'pulled out of the glovebox [of his car] a sock that he had a firearm in'.[646] He took the firearm out of the sock. Mr Evans described it as 'a small pistol-like firearm. It had a wooden handle, a bolt-action and a spring mechanism on it'.[647] Mr Evans thought that it had been hacked down from 'a rifle or something'.[648]

209 According to Mr Evans, Mr Cross said that somebody owed him money and had given him the gun instead.[649] Mr Cross said that he did not know whether it worked or not and that he had some bullets.[650] Mr Cross loaded what he said was a blank into the firearm, pointed it into the air and fired.[651] He asked Mr Evans if he wanted a go, and Mr Evans proceeded to fire the gun.[652] Mr Evans had never handled or seen a gun before.[653] Mr Evans said he had no idea if they were blanks as he was 'taking him at his word'.[654]

210 When asked to describe the firing mechanism, Mr Evans said:

[T]here was a bolt that had to be pulled back, um, the bullet was loaded in and the bolt was slided [sic] back forward and then there was a spring mechanism that you had to pull back to, sort of, cock the gun and then it was ready to fire.[655]

211 Mr Evans confirmed that the spring mechanism was at the back of the barrel near where the cartridge would be.[656] Mr Evans saw Mr Cross with the same gun in or about October 2018.[657] He agreed that he and Ms Purdie collected the gun from another location for Mr Cross at that time.[658] The person they collected it from said that Mr Cross needed the gun back because it was not his, and Mr Cross was in trouble.[659]

212 Mr Evans recalled Mr Cross visiting his home on the Sunday prior to his arrest in a Suzuki Swift.[660] He said that Mr Cross pointed out that the letters and numbers on the registration plate could be made to stand for the phrase 'I don't care for your questioning'.[661] Attributing phrases to the letters and numbers on registration plates was something the two had done together when Mr Evans gave Mr Cross lifts to work.[662]

213 DS Weaver was in the Victoria Police Arson and Explosives Squad in December 2018.[663] After attending the scene of the tent fire at the Showgrounds on the morning of 4 December, DS Weaver was tasked with speaking to Mr Cashion.[664]

214 DS Weaver said that his initial information was that the deceased person in the tent was thought to be male.[665] He agreed that this information was corrected at some time during a briefing that started at about 8:25am.[666]

215 DS Weaver agreed that phone records show he received a call from Mr Cashion at approximately 12:30pm on 4 December, and that the call lasted two minutes and 54 seconds.[667] He said that the 'gist' of the call was to get Mr Cashion to come in to make a statement.[668] DS Weaver then consulted his notes and said that, beneath the record of his call with Mr Cashion, was a notation '1pm at the Geelong Police Station'.[669] He agreed that this indicated that Mr Cashion was to come to the station at 1:00pm. He further agreed that Mr Cashion did not arrive at this time,[670] and acknowledged that the phone records showed five or six text messages or short calls between the two until 1:25pm.[671]

216 DS Weaver said that his next notation in relation to Mr Cashion is recorded at 2:20pm.[672] DS Weaver agreed that the statement made by Mr Cashion includes an acknowledgement signed by DS Weaver at 2:34pm.[673] When asked if it was realistic that Mr Cashion's statement could have been taken, typed and signed in 14 minutes (between 2:20pm and 2:34pm), DS Weaver said, 'I very much doubt it'.[674]

217 When asked to estimate the time it would have taken to sit down with Mr Cashion, determine what he had to say, organise it into a statement, type up that statement and have it signed, DS Weaver said, 'Half an hour to 40 minutes'.[675]

218 DS Weaver agreed that his entry recorded at 2:20pm in relation to Mr Cashion's attendance is a fairly lengthy entry extending over one and a half pages.[676] He agreed that at the end of that entry are the words 'statement obtained',[677] and that these words referred to his obtaining Mr Cashion's statement.[678] DS Weaver also agreed that immediately after those words are Mr Costello's mobile phone number and Ms Walton's phone number.[679] However, when asked if he obtained that information from Mr Cashion, he said, 'I'd only be guessing'.[680]

219 DS Weaver agreed that Mr Cashion left the Geelong Police Station immediately after giving his statement and that he had no further involvement with Mr Cashion after that time.[681]

220 DS Weaver said that Mr Cashion did not participate in any phone calls in DS Weaver's presence while at the Geelong Police Station.[682] He agreed that at no point did Mr Cashion offer to make any phone calls to assist with locating or speaking to Mr Costello or Mr Costello's mother (Ms Walton).[683] He agreed that he would have made a note had this occurred.[684] He agreed that he was not informed by Mr Cashion that Mr Costello was on his way down to the Geelong Police Station.[685]

221 DS Weaver subsequently drove to Colac to speak with a person named Joanne Costello, and arrived at approximately 6:10pm.[686] He was informed by Ms Costello that Mr Costello, his mother (Ms Walton) and grandfather were on their way to the Geelong Police Station.[687] DS Weaver agreed that he would not have driven to Colac had he known Mr Costello was on his way to Geelong.[688]

222 DS Farrell is attached to the Victoria Police Homicide Squad and was the team leader in the investigation of Ms Pante's death.

223 DS Farrell took a statement from Mr Barker on 8 January 2019 at the Melton Police Station.[689] Mr Barker provided consent for DS Farrell to attend his home where DS Farrell photographed and seized some items, including fuel containers and car mats.[690]

224 On 1 March 2019, DS Farrell took a DNA sample from Mr Cross, which he conveyed to the Forensic Services Centre.[691]

225 In cross-examination, DS Farrell confirmed that at a briefing at 8:25am on Tuesday 4 December 2018, the suspected identity of the deceased was relayed to him, and it was a female person.[692] He also confirmed that his notes record that 'Callison saw M enter toilet block PM Monday with large quantity of clothing'.[693] He confirmed that 'M' referred to a male.[694] DS Farrell confirmed that he did not personally speak to the Callisons on that occasion, but spoke to them weeks after.[695] He also confirmed that the information in his notes appeared to have been conveyed to him by an officer called Bridget Reiche at a briefing by the Arson Squad at 10:25am on 4 December.[696]

226 DSC Asciak is attached to the Victoria Police Homicide Squad, was involved in the investigation of Ms Pante's death, and is the informant in this proceeding.

227 DSC Asciak was shown photographs of the crime scene and explained that two padlocks were found:[697] a padlock with yellow colouring was found on the ground with what appeared to be the pull tabs from the lip of the tent,[698] and a different padlock was found on the burnt out remains of a fridge.[699] DSC Asciak confirmed that another photograph depicts what appears to be an 'arm shoulder of a brown coloured bag that's been burnt out',[700] and that a separate photograph depicts a burnt out mobile phone.[701] Those photographs are contextualised by several other tendered photographs.[702]

228 DSC Asciak said that a silver iPhone belonging to a woman named Isabella was recovered from Mr Hollonds' car when it was seized, and that it was returned to her.[703]

229 DSC Asciak confirmed that: Ms Pante's father provided a mobile telephone to investigators; this device had Facebook Messenger installed; and police accessed Ms Pante's Facebook messages from this mobile phone.[704] Ms Pante had been in communication with a person who went by 'Yea Nah', and whose account had previously been titled 'Nick Cross'.[705] DSC Asciak was able to link this account to the real world identity of Mr Cross.[706] He was also able to link a 'Rexy Menzies' account to the real world identity of Ms Menzies.[707]

230 DSC Asciak interviewed Mr Costello when he presented to the Geelong Police Station on 4 December 2018. DSC Asciak was assisted by another detective, Michael Drew. DSC Asciak said that he was leading the questions in that interview.[708] Mr Costello was cautioned at the beginning of the interview, but did not answer 'no comment' or remain mute to any question.[709] The interview was then suspended to take Mr Costello's statement:

I [DSC Asciak] was in charge of typing the statement and um, I was leading with questions - open questions for [Mr Costello] to, um, give me the information. And then it was drafted in his own words into a statement.[710]

231 DSC Asciak confirmed that the statement did not include 'every last detail from the record of interview', but said this was merely because certain topics did not come up during production of the statement and not because they were intentionally left out.[711] DSC Asciak also confirmed that while the interview was suspended Mr Costello was shown a custody photograph of Ms Menzies and that Mr Costello confirmed she was the woman with Mr Cross[712] who he labelled 'other girl' in his sketches of the tent layout.[713]

232 DSC Asciak confirmed that Mr Costello's statement includes the following passage regarding the words spoken by Mr Cross when he parted from Mr Costello:

[Mr Cross] stayed in the car and he drove off as well. As he drove off he told me to put it all on him. I took that to mean to tell the police that he was the one that had shot [Ms Pante].[714]

233 In cross-examination, DSC Asciak confirmed that Mr Costello used the phrase 'put it all on him' when making his statement; however, he did not agree that Mr Costello intended this to be a verbatim recollection of what Mr Cross had said.[715] DSC Asciak could not recall if Mr Costello qualified the phrase by saying that he could not be sure of the exact words used by Mr Cross.[716] He agreed that the statement does not suggest any ambiguity or qualification;[717] however, he also noted that the phrase is not recorded in quotation marks in the statement, which DSC Asciak would normally use for a direct quote.[718]

234 DSC Asciak said that Mr Costello indicated to him that his mobile phone was still in Colac.[719] Police obtained that mobile phone the following morning.[720] DSC Asciak performed an 'extraction' of the contents of the phone, which is the source of various text messages to and from Mr Costello adduced at trial.[721] Mr Costello's Facebook Messenger messages were captured separately via a video recording of a person scrolling through the messages on the phone.[722] DSC Asciak confirmed that Mr Costello's mobile phone ceased all data communications on the morning of the shooting and did not resume until some days later when the police turned his mobile phone on to perform the extraction.[723]

235 DSC Asciak confirmed that police secured CCTV footage of Mr Costello exiting a silver Suzuki Swift and entering a two dollar shop at 9:17am on the morning of Monday 3 December 2018.[724] Police also secured CCTV footage showing Mr Cross and Ms Menzies at The Village Shopping Centre in Bacchus Marsh at about 9:45am on Tuesday 4 December,[725] at a Coles Express petrol station in Bacchus Marsh at 9:55am,[726] and arriving at the Discovery Park in Braybrook at 12:30pm.[727] It is an agreed fact that Mr Cross, Ms Menzies and Mr Sell were captured on CCTV at Marketplace Shopping Centre in Sunshine at 8:09pm.

236 DSC Asciak said that CCTV footage from 4 December of Ms Menzies showed her at the Coles Express petrol station at 9:55am with dark brown hair; and at Marketplace Shopping Centre in Sunshine at 8:09pm that night with auburn blonde hair. When she was arrested, Ms Menzies had fluorescent red hair.[728]

237 DSC Asciak confirmed that requests were made for CCTV footage at the North Shore, Waurn Ponds and Colac Train Stations; however, the requests were erroneously made for 4 December 2018 and by the time the error was identified, the 3 December footage no longer existed.[729] No investigations were made in relation to the paper train ticket Mr Costello said he purchased for Colac.[730] No search was undertaken of Ms Walton's address, no statement was taken from Ms Walton until 6 May 2021, and no statement was ever taken from Mr Costello's grandfather.[731]

238 DSC Asciak obtained maps from Google Maps showing the relative position of the Showgrounds and two dollar shop in Belmont,[732] and the Colac Train Station and Ms Walton's house in December 2018.[733]

239 DSC Asciak travelled to Sydney to extradite Mr Cross, Ms Menzies and Mr Sell after they were arrested.[734] Mr Cross was informed many times that he was under arrest for murder.[735]

240 DSC Asciak was present for the entirety of Mr Costello's evidence at the committal hearing.[736] He said that it was not put to Mr Costello that he shot Ms Pante, and DSC Asciak could not recall the accusation being conveyed to Mr Costello in a less direct way.[737] He has never had a conversation with either Mr Costello or Ms Walton 'where there was any discussion adverting in any way to the possibility' that Mr Costello was going to be accused of being the shooter.[738] DSC Asciak confirmed that Ms Walton was onsite when Mr Costello was giving evidence in this trial, but only to provide support outside the courtroom.[739] At that time, and earlier when he took her statement, he told Ms Walton that, 'You can't discuss [your] statement with [Mr Costello]',[740] and that he generally told all witnesses not to discuss their evidence.[741] He did not recall specifically telling Ms Walton not to read Mr Costello's statement, but thought it should have been clear from his instructions.[742]

241 DSC Asciak confirmed that Mr Cross had two mobile phones active at the time of Ms Pante's shooting.[743] He said that it is possible to obtain SMS messages from the telecommunications provider even without custody of the mobile phone if requested in good time, and that is how the communications between Mr Cross and Mr Sell were obtained.[744]

242 DSC Asciak confirmed that: Mr Cross' two mobile phones had numbers ending in 3021 and 0256; the 3021 number was registered in the name of Mr Cross and the 0256 number in the name of another person;[745] police could not obtain the number of text messages sent and received for the 0256 number but could obtain details of when it was connected to the network;[746] the 3021 phone had significantly greater network activity as at December 2018;[747] the 3021 phone was used before and after the shooting until approximately 8:45pm on 3 December;[748] network activity on the 0256 phone resumed at about the same time and continued until approximately 3:27am on 4 December;[749] and network activity resumed on the 3021 phone from 8:56am on 4 December.[750] Neither mobile phone was active for a significant period during 5 December 2018 which appears to align with Mr Cross' traveling to New South Wales.[751] The 0256 phone resumed network activity in Greystanes, New South Wales at 9:45pm on 5 December.[752]

243 DSC Asciak said that Mr Cashion's phone records were obtained during the course of the trial when the issue of Mr Cashion's calls with Ms Walton and DS Weaver arose.[753] He requested records for the entire day of 4 December 2018 - i.e., between 00:00am and 11:59pm.[754]

244 DS Asciak confirmed that the word 'jacks' is a slang word for the police.[755]

245 Dr Lynch is a forensic pathologist who conducted an autopsy on Ms Pante's body on 4 December 2018.[756] Dr Lynch's key findings were:[757]

(a) extensive external injuries to Ms Pante's body in keeping with the tent fire;

(b) a gunshot injury to the right side of Ms Pante's forehead, seven centimetres below the top of her head;[758]

(c) passage of the bullet very slightly from right to left at an angle of approximately 30 degrees,[759] and slightly from above to below at an angle of approximately 45 degrees, if measured with Ms Pante standing erect and looking directly forward.[760]. (In these reasons, I have used the term 'horizontal plane' to refer to the horizontal plane of Ms Pante's head while standing erect and looking directly forward); and

(d) identification of the following drugs on toxicology analysis: methylamphetamine (ice); alprazolam and oxazepam (benzodiazepine sedatives); nortriptyline (an antidepressant); ranitidine (used to treat gastric ulcers or dyspepsia); and paracetamol.

246 Dr Lynch concluded that the cause of Ms Pante's death was a gunshot injury to the head.[761] He identified that the bullet passed into Ms Pante's cerebral hemispheres, through her brainstem and came to rest at the back of her skull on the left hand side.[762] He said it was most likely that Ms Pante would have been 'instantly incapacitated and died rapidly after sustaining [the] injury'.[763]

247 Dr Lynch explained that pathologists classify the range at which a gunshot wound is inflicted into three categories:[764]

(a) 'contact or near contact', where the barrel of the firearm is against or very close to the skin. In these cases, there is blackening around the wound entrance and there might be an imprint from the muzzle of the firearm against the skin;

(b) 'intermediate', where the firearm is anywhere from an inch to several feet away from the victim. In these cases, unburnt and burnt propellant emerges from the end of the barrel with the bullet with sufficient energy to impact on the skin and leave a speckled type marking called 'stippling' or tattooing;[765] and

(c) otherwise, 'distant', where the only marks left on the skin are by the bullet.

248 Dr Lynch said that he was confident Ms Pante was not shot at an intermediate range, as there was clearly no stippling or tattooing around her wound.[766] He said that the identified blackening around the wound made him 'favour' a contact or near contact injury; however, he was not able to exclude the possibility of the blackening being an artefact of the fire, and thus that Ms Pante was shot at a distant range.[767]

249 Dr Lynch did not identify any soot in Ms Pante's lungs or chemicals from a fire in her blood, which would otherwise indicate that she was breathing during the fire. As a result, and given that her gunshot injury was likely to be rapidly fatal, Dr Lynch preferred the conclusion that Ms Pante was dead before the fire.[768]

250 Dr Lynch explained that the tract made by the bullet through Ms Pante's brain could be explained by many different combinations of Ms Pante's head position and the position of the shooter at the time of the shooting. One possibility is that Ms Pante was looking directly ahead and the bullet was travelling downwards at an angle of approximately 45 degrees. Another possibility is that Ms Pante's head was flexed at an angle of approximately 45 degrees and the bullet was travelling horizontally. There were also many other possibilities. Dr Lynch said that he did not prefer any one combination of positions and that, accordingly, he did not 'have a view ... as to the position of the two protagonists'.[769]

251 The prosecution asked Dr Lynch to consider a specific hypothetical scenario by reference to a diagram prepared by the prosecution.[770] The parties agreed, and Dr Lynch accepted, that the diagram was intended to depict Ms Pante looking directly ahead and, for the purposes of the hypothetical, assumed that it did show Ms Pante looking directly ahead.[771] In the diagram, the external trajectory of the bullet was depicted by a line drawn at 45 degrees to the horizontal plane of Ms Pante's head. The bullet trajectory line also formed the hypotenuse of a right angle triangle in the diagram, with the adjacent and opposite sides of the triangle representing the horizontal and vertical components of the bullet's trajectory, respectively.

252 Dr Lynch agreed that this diagram illustrated the following point: in the scenario where Ms Pante was looking directly ahead at the time she was shot (and the bullet entered her head from above at an angle of 45 degrees to the horizontal), each unit of horizontal distance between the gun and the entry wound on her forehead would need to be accompanied by an equal unit of vertical distance between the gun and the entry wound on her forehead:

... [I]n order to produce an injury entering her head, with the presumption that she's looking straight ahead, from say 10 feet away [horizontal distance], would require the firearm to be discharged from a height of 10 feet [above the entry wound]. So if - if it was five feet away [horizontal distance] ... then the vertical height from which the gun was discharged [above the entry wound], would be five feet.[772]

253 In cross-examination, Dr Lynch agreed that this interpretation assumed Ms Pante was looking directly ahead, standing erect, and that the angle between the bullet's trajectory and the horizontal plane of Ms Pante's head was precisely 45 degrees.[773] He agreed that the bullet's angle of 45 degrees to the horizontal plane of Ms Pante's head was an approximate measurement, and that, if measured with a protractor, could be between 40 and 50 degrees.[774]

254 Dr Lynch said that, after sustaining an instantaneously incapacitating injury of the kind Ms Pante suffered, a person could fall in any direction. That direction would be determined by a number of variables, including, in Ms Pante's case, whether she was still moving, whether she was leaning, and the centre of gravity of her body.[775]

255 In cross-examination, Dr Lynch agreed that he could not exclude the possibility that Ms Pante, who was approximately 164 centimetres tall,[776] was shot by a person whose height was 6 foot 7 inches.[777]

256 Mr Xydias is a scientist at the Victoria Police Forensic Services Centre.[778] He attended the tent fire in the early hours of 4 December 2018.[779]

257 A number of photographs of the tent taken on 4 December were tendered in evidence.[780] Mr Xydias explained that a body can be seen at 'the doorway section or the entrance to the tent',[781] and identified a number of other objects, including a small refrigerator, pedestal fan, a bedside table and the remains of a mattress.[782] Mr Xydias said that 'the head portion of the body was actually probably in contact with the door of the ... tent'.[783] One of the tendered photos depicts a padlock with some yellow colour.[784]

258 Mr Xydias agreed that his rough estimation of the diameter of the tent was 4.5 metres,[785] and that he estimated the distance of the tent from the roadway to be 2.5 metres.[786] He agreed that 'gu[y] ropes' were present all around the perimeter of the tent.[787]

259 Mr Xydias said that the fire appeared to have started on the 'south-eastern ... or eastern corner' of the mattress, and that no flammable liquid was used in the fire.[788] The corner referenced by Mr Xydias is the corner furthest from Ms Pante's body. Mr Xydias said that there was progressively less damage inflicted by the fire further away from the ignition point.[789] During cross-examination, Mr Xydias agreed that the cause of the fire was probably 'ignition of readily combustible materials, bed, clothes, paper and other items'.[790]

260 Mr Xydias estimated that the fire would have burned for at least 30 minutes;[791] however, that was a 'real estimation' without a 'great level of ... assurance'.[792] He said it was also difficult to estimate how long the fire took to progress from the initial, localised stage to its full size: it may have 'smouldered for five, 10 minutes before it took off significantly' or, alternatively, 'within a minute or two', the whole bed could have been on fire.[793] In cross-examination, Mr Xydias agreed that the fire could have smouldered for 15 to 20 minutes before it took off; however, he said it was 'highly unlikely' to have smouldered for an hour before taking off.[794]

261 Mr Xydias said that, after most of the materials within the tent had burned away, the fire could have smouldered for hours.[795] During that end stage of the fire, the embers would glow and flames would continue to flicker.[796]

262 Mr Xydias separately analysed the fire of the Suzuki Swift. His corresponding report dated 20 December 2018 was tendered in its entirety.[797] In that report, Mr Xydias identified the car as 'a silver, Suzuki Swift, four door hatchback, of uncertain age and without registration plates'.[798] Given the agreed fact that police found a grey Suzuki Swift bearing registration plate 1DC4YQ,[799] Mr Xydias was evidently mistaken about the car having no registration plates, or otherwise examined the car when the registration plates had been removed by police.

263 The entire vehicle was extensively and very severely fire damaged.[800] Mr Xydias concluded that the cause of the fire was the ignition of the available combustible material within the passenger compartment, such as the seat covers and inner foam, car fittings and contents.[801] He said that multiple points of origin of the fire were possible. The 'presence of a small to moderate amount of a flammable liquid was considered a possibility, but could not be substantiated from the results of the sample analysis'.[802] The source of ignition was not determined. However, 'in the circumstances, and in the absence of any apparent accidental means of ignition, the fire was probably ignited directly by a match or a cigarette lighter'.[803]

264 Ms Pirie is a forensic officer at the Victoria Police Forensic Services Centre.[804] She is an expert in the field of DNA analysis.[805] She analysed a firearm and some ammunition (agreed to be the gun and ammunition found in Mr Cross' possession in Greystanes), and two jerry cans in relation to the case.[806] Ms Pirie was provided with DNA reference samples labelled 'Nicholas James Cross', 'Maddison Pante', 'Todd Daryl Sell', 'Tracy Menzies' and 'Brodi Costello'.[807] She compared these profiles with DNA profiles obtained from the firearm, ammunition and jerry cans.[808]

265 Ms Pirie reported her result in terms of the likelihood that each of the persons who provided reference samples contributed to DNA profiles found on the firearm, ammunition and jerry cans. In summary:

(a) Mr Cross is incredibly likely to be a contributor to samples from:

(i) the outside surface of the lid of the ammunition container, the inside surface of the lid and inside base of the ammunition container, and the outside surface of the base of the ammunition container (each 100 billion times more likely than not);[809]

(ii) one set of 60 ammunition cartridges (8.7 billion times more likely than not), and a second set of 55 cartridges (100 million times more likely than not);[810]

(iii) the trigger of the firearm (100 million times more likely than not), and the bolt of the firearm, under the barrel of the firearm reaching to the stock, and a cartridge located in the firearm (each 100 billion times more likely than not);[811]

(b) Ms Menzies is incredibly likely to be a contributor to samples from the outside surface of the lid of the ammunition container and the trigger of the firearm (each 100 billion times more likely than not), and likely to be a contributor to a sample from under the barrel of the firearm reaching to the stock (19 times more likely than not);[812] and

(c) Mr Sell is incredibly likely to be a contributor to samples from the two lids of the first jerry can and the handle of the second jerry can (each 100 billion times more likely than not), and the lid of the second jerry can (33 million times more likely than not).[813]

266 Ms Pirie agreed that the DNA results from the firearm are consistent both with Mr Costello touching the firearm but not leaving detectable DNA, and with Mr Costello not touching the firearm.[814] She could not say that one was more likely than the other.[815]

267 LSC Paul Griffiths is a firearm and toolmark examiner at the Victoria Police Forensic Services Centre.[816] He conducted investigations into the firearm and ammunition found in the possession of Mr Cross, and the bullet retrieved from Ms Pante's skull.[817]

268 LSC Griffiths concluded that the bullet retrieved from Ms Pante's skull was a lead fire bullet of .22 long rifle calibre.[818] It had sustained significant impact damage.[819]

269 LSC Griffiths concluded that the firearm found in Mr Cross' possession was a .22 long calibre rifle, Lithgow brand model 1, bolt action single shot.[820] He confirmed that that firearm was depicted in photographs shown to the Court.[821] The firearm had undergone modifications: the barrel and forestock had been shortened, and the buttstock had been shortened and shaped slightly.[822] Consequently, the firearm was approximately 220mm long with a barrel length of about 80mm.[823] The modifications effectively converted the rifle into a handgun.[824]

270 LSC Griffiths described the process for loading and firing the firearm as follows:

So this firearm has a bolt, a breech bolt, which you can see in the photograph, and also a bolt handle which you can also see. So that - the operator has to draw that bolt handle [rearward] to expose the chamber of the firearm.

... then the operator manually loads a cartridge into the chamber of that firearm, and then closes the bolt, so pushes the bolt forward, and then turns it down to the right, which locks the action.

...

So you action the bolt, lock the firearm with a cartridge inserted so it's loaded, and then you need to cock it by pulling this section back [indicating the circular cocking piece on the rear of the barrel]. Those little grooves, they're for grip on your fingers. That's all they're for. So then you pull this back and it comes back maybe half an inch, three quarters of an inch.

...

[Then] you pull the trigger.[825]

271 LSC Griffiths confirmed that after firing, the empty cartridge case needs to be manually removed from the chamber by the same process described above.[826] The firearm can only be fired once before the reloading process is required.[827]

272 LSC Griffiths confirmed that he fired rounds from the exhibit firearm into a water tank in order to retrieve the fired bullets, undamaged.[828] He said the sound made when the firearm was fired was 'quite standard' for that type of firearm, being a 'relatively loud bang'.[829] He then compared the fired bullets with the bullet retrieved from Ms Pante's skull.[830] The purpose of the comparison was to determine whether or not that fired bullet (from Ms Pante's skull) was fired in the exhibit firearm (found in Mr Cross' possession).[831]

273 In examination in chief, LSC Griffiths was shown a series of photographs that he agreed he had taken under microscope of: the bullet from Ms Pante's skull; and a fired bullet from the exhibit firearm.[832] LSC Griffiths explained that each bullet was examined to identify both discernible 'class characteristics' and 'individual marks'.[833]

274 Class characteristics are produced by all firearms belonging to a particular class of firearm. They are the product of calibre, the number of 'lands and grooves' in the barrel and the direction of twist applied to the bullet.[834] The 'lands' are raised sections in the barrel that produce depressed 'land marks' on the bullet, and the 'grooves' are cut-out sections in the barrel that produce raised 'groove marks' on the bullet when the relatively soft copper or lead bullet passes through the high tensile carbon steel of the barrel.[835]

275 The 'individual marks' on the bullet are due to the specific weapon used, and not merely a product of that weapon belonging to a particular class. They appear as striae within the land marks and groove marks.[836]

276 In examination in chief, LSC Griffiths was shown two diagrams which he agreed depict: the lands and grooves of a rifled barrel; and a fired projectile showing class characteristics and individual marks.[837]

277 LSC Griffiths said that the bullet retrieved from Ms Pante's skull evidenced all of the discernible class characteristics of the exhibit firearm found in Mr Cross' possession.[838] This allowed him to conclude that 'the fired bullet ... was fired in a firearm with the same rifling or class characteristics as the exhibit rifle'.[839]

278 LSC Griffiths then proceeded to examine the bullets for individual marks. He said this process was difficult due to the damage sustained by the bullet retrieved from Ms Pante's skull. As a result of that damage, he 'really only had one and a-half land marks and maybe a groove mark to look at'.[840] LSC Griffiths also informed the Court that 'certain enzymes in the body ... attack those really fine striae',[841] such that they may no longer be present once the bullet is retrieved. LSC Griffiths identified two possible individual marks common to the compared bullets; however, there were insufficient individual marks around those marks to draw a conclusion about whether the bullets were fired from the same gun.[842]

279 LSC Griffiths' ultimate conclusion was that 'I can't say definitely that the fired bullet [from Ms Pante's skull] was fired in that rifle or that handgun [found in Mr Cross' possession] ... however, at the same time, I can't say that it wasn't'.[843]

280 In cross-examination, LSC Griffiths confirmed that he had entered the class characteristics discernible from the retrieved bullet into a firearm database.[844] The result identified 36 different types of .22 calibre rifle with the same class characteristics.[845] LSC Griffiths confirmed that a lot of these firearms are available in Australia.[846]

281 LSC Griffiths also confirmed that the ammunition retrieved together with the firearm was all .22 long rifle calibre.[847]

282 Mr Cross is a 35 year old former forklift driver,[848] who is approximately 173-174 centimetres tall.[849] At the time of Ms Pante's shooting in December 2018, Mr Cross was selling ice, 'For profit in a way that I was able to live off it'.[850] He was also a drug user. He would inject two points of ice in the morning and two in the evening, and smoke socially with other people.[851] According to Mr Cross:

I had a drug habit um but I felt that I was in control of that and I controlled the amount that I used. It was never an issue for me to have drugs in my possession and not use.[852]

283 Mr Cross denied that his level of drug use affected his memory of the events of December 2018,[853] and described his memory as 'pretty clear'.[854]

284 Mr Cross said that, at the time of Ms Pante's shooting in December 2018, he had three firearms:

(a) the weapon used to kill Ms Pante - a sawn-off single shot .22 bolt action rifle, a little shorter than 30 centimetres in length, with a wooden buttstock that was a 'bit homemade' and more square than normal, which Mr Cross acquired in early November 2018 from a man named Matthew Heinz as payment for half a gram of ice. Mr Cross explained that he 'wasn't looking for a gun, but yeah - he [Mr Heinz] wanted ice';[855]

(b) the weapon in Mr Cross' possession when he was arrested in New South Wales - another sawn-off single shot .22 bolt action rifle, around 20 centimetres in length, with the original albeit cut buttstock, which Mr Cross acquired in 2017 from a man named Luke Charles as collateral for a drug debt owed by Mr Charles to Mr Cross. Mr Cross said that firearm ended up in the possession of a friend, Ben Duffy, who then gave it to Mr Evans before it was returned to Mr Cross in October or November 2018;[856] and

(c) a .410 shotgun that Mr Cross acquired from Mr Heinz for a gram of ice, but which he had no ammunition for, and was 'just all for show'.[857]

285 Mr Cross said that he retrieved the second sawn-off rifle from Mr Evans because 'I had some people after me'.[858] According to Mr Cross, when he was dating a woman named Marley Robinson in 2017, the two stole a 'fair bit of money' from Ms Robinson's boyfriend, Shay Turner, using his bank card.[859] Mr Turner arranged to have Ms Robinson 'bashed', and Mr Cross was told that 'he was out to shoot me'.[860] In late October or early November 2018, a man named Cain Kennett told Mr Cross that there had been a set up whereby Ashley Harmer, a friend of Mr Turner, was going to shoot Mr Cross, and it was only because Mr Kennett hid the ammunition that Mr Cross was not shot.[861]

286 Mr Cross said that his reason for wanting both single shot sawn-off rifles was 'that I then had more than one shot, knowing that the guys that were after me had multiple shot weapons'.[862] He said he had seen a video of a double barrel shotgun to be used to shoot him, and had been told his would be assailants had pistols that 'take a clip'.[863] Mr Cross said he 'was actively trying to find'[864] multiple shot weapons, but that he 'couldn't get them so getting a second single shot when the opportunity was there seemed like an okay thing.'[865] He had tried to buy a pump action .22, or swap the Hyundai i30 in his possession for such a gun,[866] and this is reflected in certain Facebook messages from 1 and 2 December 2018.[867]

287 In cross-examination, Mr Cross said that he did not consider just repaying the money to Mr Turner and agreed that it was better to just stay in constant danger ready for a shootout.[868] He denied that his account of Mr Turner and Mr Harmer was a convoluted story to explain why he had two firearms that were almost identical.[869]

288 Mr Cross said that Mr Costello had seen all three of his weapons at once when Mr Cross displayed them at Ms Menzies' house.[870] Mr Cross also said that Mr Costello messaged him twice about obtaining a firearm: once to rob a drug dealer, and another time so that Mr Costello could take a photo of himself with the weapon for his Facebook profile.[871] In both cases, Mr Cross declined. Mr Cross denied ever firing a gun out of his car in Mr Costello's presence.[872]

289 Mr Cross agreed with Mr Evans' evidence that they both fired the shorter .22 with blanks in Mr Evans' backyard.[873] He said that he did not have the longer .22 with him on that day.[874] However, it was unusual for Mr Cross to have weapons at Mr Evans' house as 'they've [Mr Evans and Ms Purdie] got kids there and they're not into any of that kind of stuff'.[875]

290 Mr Cross met Mr Costello in 2017 through Ms Robinson.[876] Ms Robinson had previously gone out with Mr Costello's uncle, which led to Mr Costello referring to Mr Cross as 'unc' (uncle) and Mr Cross referring to Mr Costello as 'neph' (nephew).[877] The two used lots of drugs together, went to the pub and hung out.[878] Mr Cross said their relationship was 'really good'; he would 'look out' for Mr Costello out of 'compassion for him in the situation he was in', which Mr Cross had himself experienced 'as a kid'.[879] He described that situation as living on the streets, couch surfing or staying in motels when he could afford them.[880]

291 Mr Cross showed Mr Costello how he could use drugs 'for free' by selling drugs. Mr Cross knew it was not right, but 'that's the life we were both in at the time'.[881] In early November 2018, he purchased Mr Costello a T-shirt and took him out for lunch.[882] On this occasion Mr Costello had not showered and was 'looking pretty ratty'.[883] In late November, Mr Cross retrieved a couple of bags of Mr Costello's clothing that were being held as the result of a drug debt owed by Mr Costello.[884] Mr Cross said that he entered the property where the clothes were being held, and disagreed with Mr Costello's evidence that Mr Costello was the one who retrieved the clothes.[885]

292 Mr Cross met Ms Pante in early November 2018 through Mr Costello.[886] He said they 'got along well', being close in age.[887]

293 Mr Cross met Ms Menzies in 2017.[888] He described their relationship as, 'Just good friends',[889] and denied a sexual relationship.[890] Ms Menzies let Mr Cross stay at her house if he did not have anywhere to go.[891] At the time of the shooting in December 2018, Mr Cross was staying the 'majority of the time' at Ms Menzies' house.[892] Mr Cross said that Mr Costello 'kn[e]w Tracy quite well',[893] but agreed that she only knew Mr Costello through Mr Cross.[894]

294 In early December 2018 when Mr Costello was staying at the Kardinia Motel, Mr Cross 'paid [Mr Costello] just over a gram and a half of ice to use at the motel for those couple of days while [Mr Cross] was there to sell, as a base to sell from'.[895] Mr Cross sold drugs at the Kardinia Motel;[896] he would 'weigh up' in the motel room (weigh the quantity of drugs for sale) and meet cars in Sharp Street, a side street.[897]

295 Ms Pante was staying with Mr Costello at the Kardinia Motel. While staying there, Mr Costello was also visited by a woman named Taylor Smith, Mr Cashion and a couple of other people that Mr Cross did not know by name.[898] Mr Cross recalled Ms Smith saying that she had lost her job and that her new job was to 'fuck and suck [for] meth'.[899] After those present laughed, Mr Cross said that he had 'never said no' to that form of payment.[900] Later that night, when Mr Costello was in the shower and Mr Cross was alone with Ms Pante in the motel room, Ms Pante asked Mr Cross about his earlier comments and then performed oral sex on Mr Cross for three points of ice.[901] Mr Cross said that, when he gave her the ice, he told Ms Pante:

[Mr Costello] won't ever believe that I've ticked it to you [given it to Ms Pante on credit] or I've given it to you, so just tell him that you've stolen it off me while I was weighing up [the ice].[902]

296 Mr Cross did not know if Ms Pante ever said that to Mr Costello.[903] Mr Cross said that he brought the weapon that was ultimately used to kill Ms Pante to the Kardinia Motel.[904] An hour or two after Ms Pante performed oral sex on him, Mr Cross went outside to conduct a drug sale. He left the gun on the bed.[905] According to Mr Cross:

As I've walked back in, I open the door and [Mr Costello's] standing at the foot of the bed, 'bout four metres, three, four metres from the door. As I've opened the door, he's pointing the gun at me. I've looked at, like, sorta shocked. He's pulled the trigger, and it's clicked, clicked forwards, so it was - he'd cocked it, and pulled the trigger, it's clicked forward. My heart stopped. I'm thinking fuck, he knows - he knows what's happened between me and [Ms Pante]. And then he's pointed the gun at [Ms Pante], cocked it again, and pulled the trigger again. I couldn't see [Ms Pante] from where I was 'cause of the - the way the room is, but I knew she was on the bed.

She's sorta, 'What are you doing?', you know, like, to him. And then I've said, 'What the fuck are you doing?'. As I've walked forward, he's pulled the gun - cocked it again, and pointed it at his own head and pulled the trigger, sorta laughing, you know. And I took the gun off him and said, 'What are you doing, you fucking idiot' - you know, 'You never know, that could've been loaded'. I took it off him, put it back in my bum bag, and then I actually wore the bum bag so he couldn't get a hold of it again that night.[906]

297 Mr Cross said he knew the gun was not loaded after it clicked when Mr Costello had it pointed at him.[907]

298 In cross-examination, Mr Cross agreed that, in the hour or two after Ms Pante performed oral sex on him, the three hung out without incident.[908] Mr Cross said his other two weapons (the shorter .22 and shotgun) were left in his car notwithstanding that he was a 'marked man'.[909] When asked why he did not bring a weapon to the drug deal on Sharp Street, Mr Cross said 'I was literally going to be 30 seconds and I knew who I was going to meet'.[910]

299 When it was suggested that there is no reason to cock a gun unless you intend to shoot someone, Mr Cross said, 'Well, no, unless you want to make the noise [of the hammer clicking] as well. I have no idea why [Mr Costello] cocked it'.[911] He said that, 'To my knowledge [Mr Costello] didn't know [whether] it was loaded',[912] and agreed that this meant Mr Costello could have been intending to shoot him.[913] Despite believing that Mr Costello may have been intending to shoot him, the incident did not change Mr Cross' relationship with Mr Costello at all.[914] Mr Cross could not remember hearing Ms Pante react to Mr Costello pointing the gun at her,[915] and said that Ms Pante did not say or do anything that indicated she was worried about what had happened.[916] Mr Cross agreed that he 'did not learn' a lesson about firearm safety despite a gun being pointed at him, the trigger pulled and his 'heart [having] stopped'.[917] Mr Cross denied fabricating the incident at the Kardinia Motel to assist his explanation for how Mr Costello shot Ms Pante.[918]

300 On the morning of Sunday 2 December, Mr Cross and Mr Costello exchanged a series of Facebook messages,[919] and Mr Cross picked up Mr Costello and Ms Pante in a Suzuki Swift which he had received in exchange for ice. He parked on Sharp Street because the car was stolen and he wanted to avoid CCTV.[920] Mr Cross drove the two to an apartment that he thought belonged to Mr Cashion.[921] Mr Cross offered to sell another car, a Hyundai i30, to Mr Costello.[922] At 3:26pm on 2 December, Mr Cross sent two photos of the Hyundai i30 to Mr Costello.[923] Mr Costello did not have the money to buy it at the time.[924]

301 During the evening of 2 December, Mr Cross exchanged Facebook messages with Mr Costello, telling him that there should be drug sales at the caravans at the Showgrounds if he wanted to make any profits.[925] He also indicated that he was looking for Xanax, and Mr Costello gave him Mr Cashion's number for that.[926]

302 In the early hours of Monday 3 December, Mr Cross and Ms Menzies were driving in the Hyundai i30 when:

I was at a house near there or across the road from there [the Try Boys Basketball Stadium]. I was leaving that house. Me and [Ms Menzies] were in the car and as I've turned onto - gone to turn onto Portarlington Road I got high beamed by a police car and so I started driving off knowing that when I bought the car the guy I bought if off he told me not to drive it in Geelong because it had been taken during a home invasion and I still had the same number plates on the car and so that was what was in my head, was police are going to come after me for this home invasion. So I've taken off, gone through a red light and they didn't follow me.[927]

303 In cross-examination Mr Cross agreed that he sent the following messages to a prospective buyer during the early hours of 3 December:

12:05am 2013 Hyundai i30, 26,000 kilometres. Auto. $500

2:29am We were chased from your driveway. Cars legit so it's not the reason they chased. It's gotta be 'cause of warrants at that address.[928]

304 Mr Cross accepted that he lied about the legitimacy of the car to improve its saleability.[929]

305 When it was put to Mr Cross that the Hyundai i30 was stolen from a beachside carpark, Mr Cross maintained that he was told the Hyundai i30 had been taken in a home invasion.[930] He agreed that the person who sold him the car would have been 'knocking value off the car' by disclosing this fact.[931]

306 Mr Cross and Ms Menzies then drove to the Corio/Norlane area and swapped into the Suzuki Swift. When they attended a house to sell drugs, Mr Cross started getting messages from Ms Pante via Facebook Messenger about 'wanting to swap or sell me some purple whip which is a type of amphetamine that doesn't come around that often'.[932] According to Mr Cross, it comes around, 'Every four or five years'[933] and 'when it's around people sort of want it'.[934] Mr Cross was asked about the Facebook Messenger communications with Ms Pante between 2:34am and 7:49am on Monday 3 December.[935] Amongst the messages were four voice calls. According to Mr Cross:

(a) on the call at 4:40am (Mr Cross to Ms Pante, duration four minutes and 12 seconds), Mr Cross said that, while he had a buyer for the purple whip, he did not want to swap ice for it. Mr Cross informed Ms Pante that he could sell her ice for cash or 'if she was keen on what had happened the couple of days earlier [the oral sex] I was keen for that to happen again'.[936] The two agreed to try and get rid of the people they were with in order to meet up for oral sex;[937]

(b) on the call at 5:09am (Mr Cross to Ms Pante, duration 47 seconds), Mr Cross informed Ms Pante that he could not get rid of Ms Menzies, and so she would have to pay cash for ice.[938] Mr Cross also told the Court that he had 'shouted people' drugs since his last communication with Ms Pante and could therefore only accept cash now;[939]

(c) on the call at 6:02am (Mr Cross to Ms Pante, duration 54 seconds), Mr Cross told Ms Pante that he had a buyer for ounces of purple whip and Ms Pante said she only had grams;[940] and

(d) on the call at 7:49am (Ms Pante to Mr Cross, duration eight minutes and 47 seconds) Ms Pante told Mr Cross that Mr Costello wanted ice and that Mr Costello had money.[941] Ms Pante said that Mr Costello was not calling for himself because he did not have any mobile phone credit.[942] Mr Cross did not know exactly where the tent was at the Showgrounds, so Ms Pante stayed on the phone until he could see the tent.[943] Mr Cross agreed that the only reason for his attendance at the tent was what Ms Pante communicated to him.[944]

307 Mr Cross accepted that the messages with Ms Pante on Facebook Messenger were negotiations for drug transactions.[945] When it was put to Mr Cross that his recollection of the contents of the four voice calls years later was indicative of a convenient reconstruction, Mr Cross said:

So, my life pretty much stopped not long after that, after those messages were sent. So everything from that period of time is still, I suppose, some sort of freshness in my mind.[946]

308 An hour or so before arriving at the Showgrounds, and amidst the calls and messages with Ms Pante, Mr Cross attended a house in Corio. A woman named Anne-Marie Davies, who was pregnant to Mr Harmer, warned Mr Cross that Mr Harmer was on his way there. In response, Mr Cross loaded one of his .22s:

Um, Anne-Marie Davies told me he was - she was on - that Ash was on the way to the house. And um, so I loaded the gun, thinking, like, is he going to come - is he coming to shoot me, or yeah.[947]

309 That weapon was still loaded when he retrieved it from his glovebox later that morning at the Showgrounds and brought it into the tent.[948]

310 Mr Cross pulled up at the Showgrounds directly in front of the tent at about 8:00am.[949] He and Ms Menzies approached the tent and saw it was locked.[950]

311 He called for Mr Costello who pulled the lock back through into the tent and unlocked it, and then Mr Cross and Ms Menzies walked in. [951] Mr Cross did not know where Mr Costello put the padlock.[952]

312 After a brief conversation about the tent, Mr Cross asked Mr Costello how much ice he wanted. Mr Costello said that he had no money but that Ms Pante was on her way with money, and asked if he could have a shot (a quantity of ice) before she arrived. Mr Cross said 'no ... you've got to wait until I know a hundred per cent that [Ms Pante's] showing up with money'.[953] Mr Cross said that he 'already knew that she didn't have money' because she had been trying to swap purple whip for ice.[954] Mr Cross put all of his things on the bottom left hand corner of the bed, 'like cigarettes and car keys, scales, all that kind of stuff'.[955] Ms Menzies started smoking ice and shared her pipe with Mr Cross. When Mr Costello realised that he was not getting any drugs, he 'sorta grabbed his towel and sorta scuffed his feet a bit and just taken off to the shower'; he 'wasn't impressed'.[956]

313 Mr Cross said that his refusing to give Mr Costello ice while smoking ice in front of him was 'a tough love sort of situation where I was - if you keep giving someone handouts they're never going to take care of themselves'.[957] When it was pointed out that the recipient of the 'tough love' was the same person Mr Cross affectionately referred to as 'neph', Mr Cross said, 'That morning my own mother wouldn't have got drugs for free'.[958] Mr Cross explained that he needed money himself. He noted that:

So many times I give, I'd given [Mr Costello] handouts for nothing and I was just in a position where I needed money. I had my own personal stuff, but I needed money to get on again, so there's no one was getting anything for nothing.[959]

314 The ice Mr Cross smoked with Ms Menzies was his 'personal stuff', whereas the other ice 'I had to give to other people, I wasn't giving out. It was for sale.'[960] Mr Cross agreed that he had been 'shouting' ice the night before, but he needed to sell what he had left to 'keep the ball rolling'.[961] He agreed that he could have sold the drugs he had given away the night before, but did not, which meant he no longer had enough drugs to give Mr Costello for free.[962]

315 Mr Cross recalled hearing the brakes of a car outside, sticking his head out of the tent and seeing Ms Pante. She waved him over to the car she arrived in.[963] Mr Cross did not know the driver and said he never got out of the car.[964] Mr Cross recalled that the windows of the car were up.[965] Mr Cross said that the vehicle was not moved while he was outside the tent, but said it was possible that it was moved when he returned inside.[966]

316 Ms Pante introduced Mr Cross to 'her good friend Jake' (known to be Mr Fry) and said that he wanted to talk about something.[967] Mr Fry told Mr Cross about a drug debt he owed to man named Jeremy Bingham, whose Facebook name is 'Man with the ha[m]', and said that Mr Bingham was threatening his girlfriend.[968] Mr Cross knew Mr Bingham and tried to call him on Facebook, unsuccessfully.[969] Mr Fry said that Ms Pante had mentioned Mr Cross had a few guns he might be prepared to make available for the right price, and Mr Cross suggested discussing this in the tent.[970] Mr Cross collected the longer of his .22 guns from the glovebox and followed the two inside. Mr Cross agreed that he needed two firearms for protection against potential assailants, but said, 'Everything was for sale at the same time'.[971] He also agreed that he risked someone outside the tent seeing the gun notwithstanding that he had not even agreed sale terms with Mr Fry.[972] Mr Cross added:

Yeah, the way you're saying it, yes, it's right [it was a risk] but at the time it's amazing, like money was the driving factor at that point and so I thought if I take the gun in now he's going to give me money for it and it's something - yeah. I shouldn't have done, it was a massive risk and it turned out in the worst possible way and I absolutely hate myself for it.[973]

317 In re-examination, Mr Cross said that he looked to see if anyone was around before taking the gun out of the car and that nobody was.[974]

318 Mr Cross carried the weapon into the tent holding it by the barrel, placed it on the end of the bed and asked Mr Fry why he wanted the gun.[975] Mr Cross agreed that he placed a loaded gun on the bed within reaching distance of someone he did not 'know from a bar of soap',[976] who 'could have just picked [it] up and said thanks very much and walked out the door'[977] (Mr Fry), and someone who allegedly brandished the weapon days before (Mr Costello).[978] When it was put to him in cross-examination that that was 'ludicrous' he said, 'It is. It is ludicrous. I shouldn't have done it.'[979]

319 Mr Cross said that he was willing to loan a gun to Mr Fry as a favour to Ms Pante because she introduced him as 'her good friend': 'I was doing a favour for Maddie by even talking to him'.[980] Mr Fry said that he wanted to rob another drug dealer called Harry Dickinson (or a similar surname). Mr Cross said he knew this man was Mr Costello's friend and looked over at Mr Costello questioningly, who said that he did not care as long as he got something out of it. Mr Cross replied:

[N]o, it's a shit [go]. It's not happening. I'm not going to give someone a gun to rob a mate's mate. Not happening.[981]

320 Mr Cross acknowledged that he did not personally know Mr Dickinson and that Mr Costello gave evidence that he regarded Mr Dickinson as an acquaintance rather than a friend.[982] Notwithstanding this, Mr Cross interpreted Mr Costello's statement about not caring about the proposed robbery as Mr Costello's willingness to rob mates to get drugs.[983]

321 Mr Cross told Mr Fry, You're not getting the gun' but said that he would keep trying to get in touch with Mr Bingham for him.[984] Mr Cross told the Court, 'really, yeah, I should have taken the gun out back out [sic] the car right then'.[985] When asked why he should have done that, Mr Cross explained, 'because of what [Mr Costello] had done a couple of days earlier on. I just should never have had a gun around [Mr Costello] ever again.'[986] He was asked whether it was something he thought about at the time, to which he responded, 'No. No. It's something that I've thought about every day since.'[987]

322 According to Mr Cross, Mr Costello asked Ms Pante how much money she had for ice and Ms Pante said she had spent it all the night before.[988] Mr Costello and Ms Pante asked Mr Cross for drugs on 'tick' (credit) but Mr Cross refused.[989] Mr Fry and Ms Pante then left the tent and Mr Cross assumed they were going to ask the driver for money.[990] Ms Pante returned 30 seconds later and asked Mr Cross for ice on tick again, and Mr Cross refused again because he needed money to 'get on'.[991] At this point: Ms Pante was standing halfway between the bed and the door;[992] Mr Costello was standing by the bottom right hand corner of the bed (when viewed from the door);[993] Ms Menzies was sitting on the bottom left land corner of the bed (when viewed from the door);[994] and Mr Cross was standing.[995] According to Mr Cross:

[Ms Pante] said, 'Can you just give him [Mr Costello] some [ice] and I'll fix you up later.' I said, 'Maddie, you can't, I need money, you can't do that.' [Mr Costello's] looked at her, looked at me and sort of cocked his head and gone, 'Did you just offer to suck him off?' [Ms Pante's] snapped back at him pretty quickly, 'So what? It's too bad he's not a faggot because then you could too.' Straight away [Mr Costello's] lent forward, grabbed the gun and just bang, shot [Ms Pante].[996]

323 Mr Cross said, 'it was very quick',[997] and 'it happened so quick that he's picked the gun up. He must have cocked it as he's coming up and just shot straight away'.[998] He could not recall seeing Mr Costello cock the gun.[999] He recalled a bang that was, 'So loud that my ears rang'.[1000] According to Mr Cross:

[Ms Pante] fell. Sort of fell back towards my side, mine and [Ms Menzie's] side of the tent, sort of back towards the door and then away from [Mr Costello] and I was just stuck. Like from where I was standing I could see [Ms Pante's] face and I was just stuck there, just stuck, just looking for ages and by the time I looked back up the gun was on the ground and [Mr Costello] was walking backwards and forwards with his hands over his face.[1001]

324 Mr Cross acknowledged that Mr Costello and Ms Pante had not been going out for long, that their relationship was 'up and down',[1002] and that evidence had been led of Ms Pante's friend, Mr Fry, having ice on him at the time.[1003] Notwithstanding this, Mr Cross maintained that Ms Pante returned to the tent to ask for ice from Mr Cross on Mr Costello's behalf, and offered to perform oral sex in order to obtain it.[1004] He agreed that:

(a) his own response to Ms Pante to the effect of 'no, Mads, can't do that' made it 'a bit obvious' that she was offering sex if it was not clear already,[1005] despite Mr Cross previously seeking to keep their encounter at the Kardinia Motel secret from Mr Costello because of how Mr Costello might react or feel about it;[1006]

(b) Ms Pante was 'doing something that [Mr Costello] does not want her to do, just for [Mr Costello's] benefit';[1007]

(c) Mr Costello is 'supposedly desperate [for drugs], but then gets angry at [Ms Pante] for trying to help him';[1008] and

(d) Ms Pante is 'going out of her way to help [Mr Costello], but then abuses [him]'[1009] with a comment about his sexuality (described by Mr Cross as a 'harsh burn'),[1010] which prompted the shooting.[1011]

325 Mr Cross said that Mr Costello did not express any anger or say anything to Ms Pante after her final insult before shooting her.[1012] He was adamant that Mr Costello did not know the gun was loaded: 'The way he acted afterward, there's no way that he knew that gun was loaded'.[1013] He described Mr Costello's reaction as, 'Dropping the gun, his hands over his face, the colour just drawing - dropping out of him'.[1014] However, Mr Cross could not recall Mr Costello saying anything about his mistake.[1015] He agreed that, at no stage after the shooting did Mr Costello say, 'Oh god, how could I have just killed Maddie?',[1016] or that it was an accident, that he did not realise the gun was loaded, that he was sorry, or anything to that effect.[1017]

326 Mr Cross denied shooting Ms Pante. He said he had no reason to harm Ms Pante, that they 'got along really well'.[1018]

327 Within a minute of the shooting,[1019] Mr Costello took off out of the tent and Mr Cross followed him. Mr Costello was standing by Mr Cross' car; the two looked at some people across the road at the shower block and then at each other before turning and heading back to the tent. Mr Costello said he thought those people heard the gunshot and Mr Cross said, 'We've got to get out of here in case the cops come'.[1020] According to Mr Cross, Mr Costello said, 'We can't leave with [Ms Pante] laying there. We've got to pack everything up. We've got to get rid of everything right now'.[1021] Mr Cross said that could not happen, 'We can't do anything if the police have already come'.[1022] Mr Cross and Ms Menzies grabbed Mr Cross' belongings from the bed, Mr Cross picked up the gun from the ground, Mr Costello zipped up and padlocked the tent and the three got in the car and left the Showgrounds.[1023]

328 Mr Cross agreed in cross-examination that he could have collected his gun and few belongings, left and disposed of the gun, or gone to the police, but instead took it upon himself to help Mr Costello.[1024]

329 Mr Cross drove to the carpark of the nearby Geelong Racecourse from where they could see if any police were heading towards the Showgrounds.[1025] He agreed this was his idea,[1026] and that he had the presence of mind to work out a plan to conceal the shooting for a bit longer.[1027]

330 Mr Cross denied that Mr Costello was on the phone at the time Ms Pante was shot.[1028] According to Mr Cross, after 10 to 15 minutes, Mr Costello 'got the Centrelink call, in the back seat of my car'.[1029] He said that he did not hear the phone ring.[1030]

We're just all in shock and out of nowhere [Mr Costello] starts saying he's - first he says hello and then he says his full name and starts giving like personal detail and I'm like 'What the fuck's he's doing', you know. I looked at him in the mirror and he's looked at me and I've just turned around and, 'What are you doing.' I just mouthed, 'What are you doing', and he just shook his head and said it was all right. Like just mouthed back it's okay. He was on the phone for a bit. He got off the phone and I said to him, 'What the fuck are you doing on the phone, you know', and told me it was Centrelink and that it was all good and that's when I told him, 'Turn your phone off because they'll start tracking phones.'[1031]

331 Mr Cross told Mr Costello to turn off his mobile phone because 'he shot Maddie and I knew that they'd be tracking his phone 100 per cent'.[1032] Mr Cross' mobile phone remained on.[1033] When he was asked why he did not go to the police himself, Mr Cross said:

[Mr Costello's] my mate. It was my gun. I felt just as much, I still feel just as much blame as what he is. If I hadn't have taken that gun in there none of this would have happened.[1034]

332 Mr Cross was asked why he felt so much to blame, and whether it was because he shot Ms Pante. He reiterated, 'No, no, it was my gun and every day I have, you know. Every day I feel shit about that.'[1035]

333 According to Mr Cross, Mr Costello again said that they needed to pack up the tent as the owner was coming. In examination in chief, Mr Cross said he told Mr Costello that was impossible with such a small car, and that the only thing Mr Cross could do was 'pay for an extra night and get him - get him time, you know'.[1036] In cross-examination, Mr Cross said:

So, I said to him, 'Well, you can't - you can't pack it [the tent] up cause there's a lock. You've put the lock on.' That's when he told me that he - the - the owner of the tent had a key for the lock as well. And that's why I said, 'Well, I'll just get you another night'. And I told him to call the tent owner and tell him that he'd got another night.[1037]

334 Mr Cross gave Mr Costello 50 dollars and drove him to the caretaker's office to pay for another night.[1038] He denied telling Mr Costello to provide false details.[1039] He was unsure if Mr Costello called the owner, and unaware that Mr Costello sent a text message to Mr Cashion about purchasing another night.[1040]

335 According to Mr Cross, while Mr Costello was inside, Ms Menzies wanted Mr Cross to drive off, but Mr Cross told her, 'I can't do that, I'm not doing that to [Mr Costello]'.[1041] When he returned to the car, Mr Costello said they needed to get another padlock given Mr Cashion had a key to the existing padlock.[1042] Mr Cross denied that it was his idea to purchase the lock.[1043] According to Mr Cross, Mr Costello told him to drive to a two dollar shop rather than Kmart to avoid the cameras.[1044] While Mr Costello was in the two dollar shop, Ms Menzies again told Mr Cross to drive away. According to Mr Cross:

I told [Ms Menzies] that I'd give her money so that she could get a taxi and go. That she didn't need to stay involved in this. She said that, um, as long as I wasn't going, she wasn't going to go. So we stayed there.[1045]

336 When they returned to the campsite, Mr Costello jumped out of the back seat, collected two or three bags from inside the tent and padlocked the tent; Mr Cross remained in the car.[1046] Mr Cross said, 'I have no idea what happened to the key' and 'I never actually physically saw that padlock.[1047] He specifically denied that he retained the key to the padlock.[1048] They then drove to a house in Sparks Road where Mr Cross had the Hyundai i30 parked. Ms Menzies turned and faced Mr Costello in the back seat:

She says to [Mr Costello], 'How are you going to fix this?' [Mr Costello] looks at me. I'm looking at [Mr Costello] in the mirror. And he looks at - like, we make eye contact through the sort of the mirror, and he goes, 'Take me back there and give me the gun. I'm going to kill myself. Make it a murder suicide'. Me and [Ms Menzies] said, 'No, not happening'.[1049]

337 It was at this time that the three considered making Ms Pante's death look like a suicide:

So when - when [Mr Costello] is asked to kill himself, it made it us all start thinking about suicide way, like ways of covering it up as a suicide. That's when [Ms Menzies] mentioned that we should make it look like [Ms Pante] has, like, tried to kill herself and made it like ritual, where she's lit candles and then shot herself and when she's fallen she's knocked a candle over, and it's caught fire, and it was just a ridiculous idea and wasn't going to work and it was pretty much said straight away it was a ridiculous idea.[1050]

338 Mr Cross stayed in the Suzuki Swift, and Mr Costello and Ms Menzies got into the Hyundai i30. Mr Costello transferred his bags into the Hyundai i30 and the other firearms (the short .22 and the shotgun) into the spare wheel of the Hyundai i30.[1051] Mr Cross 'put [Mr Costello] in the Hyundai', as he was worried about the Suzuki Swift being linked to the Showgrounds where Mr Costello shot Ms Pante.[1052] According to Mr Cross:

I wanted to leave in the Swift straight away. And [Mr Costello] didn't want me to go. Wanted us all to stay together and he said I wouldn't come back. If I left, I wouldn't come back. And before I left I said to [Mr Costello], I've gone 'If you get arrested before you see me again, you can put the blame on me'.[1053]

339 Mr Cross emphasised that his words were 'put the blame on me', not 'put it all on me' and denied that he ever said 'just tell the truth' or 'just say what happened'.[1054] In examination in chief, he said that Mr Costello could put the 'blame' on him because 'it was my gun that he used, and I felt just as bad as what he did for what had happened'.[1055] Mr Costello was 'stressing out. He didn't want me to leave. Um, he didn't specifically say that I was going to go to the police or anything, but I got the feeling that he was worried I was going to go to the police with the firearm'.[1056] Mr Cross told Ms Menzies to, 'Just drive around until I contact you, or take [Mr Costello] back to your house. Wait until I contact you'.[1057] In cross-examination, Mr Cross said his comment to Mr Costello about putting the blame on him:

... was to ease [Mr Costello's] mind. He was stressing about me leaving and not coming back, and I said that to him to ease his mind and like, to prove to him that I am coming back. I didn't mean to actually disappear, go to your mum's and two days later go and tell the police it was me. That's not what I meant by it. I meant, if you do not see me again, blame it on me. That's exactly what I meant, and I had every intention of coming and seeing him straight away.[1058]

340 Mr Cross said that he did not normally take the blame for serious crimes he had not committed,[1059] but in this case:

I was the cause of it. I didn't - I didn't give him the drugs. I took advantage of people with addictions - it's all my fault. It is. I didn't pull the trigger, but it's all my fault.[1060]

341 After Mr Costello and Ms Menzies left in the Hyundai i30, Mr Cross left in the Suzuki Swift. Mr Cross recalled that someone was interested in purchasing a gun. He travelled to the house of a woman named Alicia Gibbs who contacted her friend, Billy Guest, who then bought the firearm from Mr Cross for 250 dollars. While he was at Ms Gibbs' house, her boyfriend, Josh Foster, expressed an interest in purchasing the Suzuki Swift, which Mr Cross sold to him for 300 dollars.[1061] Mr Cross said that he was not concerned about the gun remaining in circulation after he sold it, and being linked to Ms Pante's death via ballistics.[1062] He agreed that the police are unable to make inquiries with Mr Guest, because he is now dead.[1063] Mr Cross said that he did not mention the car's potential connection to the shooting to Mr Foster because 'I don't think anyone would have bought it if they knew that'.[1064] Mr Cross agreed that he was happy to hand off the car to an unsuspecting person.[1065]

342 Ms Menzies then collected Mr Cross.[1066] She told Mr Cross that she had dropped Mr Costello at the train station so he could go to his mother's place.[1067] She said, 'It's not our problem anymore'.[1068] In cross-examination, Mr Cross was asked about Mr Costello's apparently sudden change of mind from wanting the three to stay together to departing by himself on the train. He agreed that Mr Costello was 'terribly, terribly concerned that you're leaving him and you're not all sticking together',[1069] and yet took off on his own anyway. Mr Cross said, 'I was shocked when he was on the train'[1070] and 'I don't know what was going through his head when he done that'.[1071] When it was put to Mr Cross that the potential consequence of telling Mr Costello to put the blame on him - that Mr Costello would do exactly that - was 'obvious', Mr Cross said:

Well - looking back on it, yes, it is obvious, but in the heat of the moment, it was just something that was a conversation that we had, and I just wasn't thinking when I said that. Like, I didn't think this was gonna be the outcome.[1072]

343 Mr Cross and Ms Menzies returned to Ms Menzies' house at around midday.[1073] Mr Cross left the shotgun at Ms Menzies' house and Mr Cross said he has no idea what happened to it.[1074] The two then travelled to see Mr Sell at Mr Barker's house in Kurunjang. Mr Cross has known Mr Sell for nearly 20 years.[1075] Mr Barker's partner did not like drugs, so they were not allowed inside. Mr Cross said, 'So we just stayed in the backyard. Smoked some drugs. We cleaned the cars. Detailed my car. Detailed his car. And just spent the day together'.[1076]

344 That night, Mr Sell drove to his father's place with the intention of re-joining Mr Cross and Ms Menzies later on. Mr Cross and Ms Menzies did 'our normal thing of selling - selling drugs. Using drugs'.[1077] Mr Cross unsuccessfully attempted to sell the Hyundai i30 to Ms Davies boyfriend in Corio. Mr Cross then 'had a bit of breakdown and that, and I was - I was a bit beside myself about the whole situation':[1078]

[I]t was my gun that was used. I'd just seen my mate kill my other mate, and I was - the whole day we'd pretty much been like, refusing to accept what had happened and just in denial, and I suppose it was just a - the amount of drugs that I'd had just brang [sic] it all out on me.[1079]

345 Mr Cross said that he was contemplating killing himself and that Ms Menzies was the only reason he did not, and that, 'I've got her to thank for me still being alive'.[1080] Mr Cross ultimately fell asleep in the Hyundai i30 on a 'dead-end' road at a lookout spot in Lara.[1081] When asked why he did not return to Ms Menzies' house, Mr Cross said that there were 'a lot of mouths to feed at that house that hang around there', 'mouths to feed' being used in a drugs sense.[1082] He agreed that this was a problem he was used to dealing with given that he had been staying at Ms Menzies' house most of the time.[1083] However, he said it was 'perfectly normal' for him to sleep in his car.[1084] In re-examination, Mr Cross said that he did not want to be around the people at Ms Menzies' house 'or anyone really, and [Ms Menzies] was helping me with my mental state of mind, which wasn't in a really good place' because of 'what had happened'.[1085] He denied it was because he had shot Ms Pante.[1086]

346 Mr Cross was woken the next morning by a passing water truck that was wetting the road.[1087] He turned on the radio and heard that a body had been found in a fire at the Showgrounds.[1088] Mr Cross and Ms Menzies were both shocked, 'freaking out a bit' and at the same time said 'Brodi'.[1089] Mr Cross denied burning the tent or asking someone else to burn the tent.[1090] Mr Cross subsequently clicked on a Facebook link that took him to an article about the tent fire on the Bay FM 93.9 webpage.[1091]

347 Mr Cross said he drove straight back to Ms Gibbs' house to get the Suzuki Swift back from Mr Foster. Ms Gibbs could not get hold of Mr Foster, so Mr Cross gave her the 300 dollars back and told her to tell Mr Foster that the car needs to leave Geelong straight away.[1092] In cross-examination, Mr Cross agreed with the proposition that his conscience was not bothering him 'the previous day when you sold [Mr Foster] a car that you knew was potentially linked to a homicide',[1093] and that his conscience was only triggered when he heard the radio news about the tent fire. He agreed that he determined that he had to go back and protect 'this poor unsuspecting buyer of the car'.[1094] Mr Cross denied burning the Suzuki Swift or having someone burn it on his behalf.[1095] He said, 'I don't burn cars, [n]ever have'.[1096] He agreed that the car's being 'torched and basically completely destroyed' within 24 hours of handing it over was a coincidence.[1097]

348 Mr Cross and Ms Menzies then drove to Bacchus Marsh. Mr Cross withdrew all of his money from his bank account, filled up the car and went to find some accommodation out of Geelong.[1098] Mr Cross denied that he was hiding when he started looking for accommodation for 4 December:

[I was] [n]ot necessarily hiding, no. I got out of Geelong, yes. I wasn't hiding away. I was under my own name. I had my phone on.[1099]

...

I wasn't hiding. I left. I wasn't - if I was hiding I wouldn't have used my name, or anything like that.[1100]

349 However, Mr Cross agreed that he left Geelong because of reasons connected with Ms Pante's death,[1101] and that he did not want to be seen in Geelong.[1102] He ultimately checked into Discovery Park, Braybrook in his own name and using his photo ID.[1103] When asked why he tried (unsuccessfully) to have Mr Sell book different accommodation for him, Mr Cross said:

[Mr Sell] had been there that many times, he didn't need to use - have a deposit to stay there. So that was why I was trying to do that. I had limited money and I didn't want to have to use a deposit.[1104]

350 However, Mr Cross agreed that he had at least 600 dollars on him as the result of selling the gun and car, and that a deposit is money that is ultimately returned.[1105]

351 When asked about his text message to Mr Sell about a jerry can, Mr Cross explained that the jerry can was Mr Sell's, and that Mr Cross had been using it to limit his attendance at service stations with a stolen car.[1106] He denied that he used fuel in the jerry can to light the tent or car fire.[1107] Mr Cross met a man named Justin Adams at the Discovery Park and sold him the Hyundai i30 for 500 dollars.[1108] He waited for Mr Sell to collect him and Ms Menzies.[1109] The three then went for a drive, obtained some drugs, and returned to the Discovery Park to use drugs.[1110]

352 Mr Cross was asked about the messages sent to Mr Drew that afternoon. He said the phrase 'survived the jacks' referred to the police high beaming him and his running a red light during the early hours of 3 December.[1111] In cross-examination, he agreed this message was not sent until the afternoon of 4 December despite the high beaming occurring in the early hours of 3 December, and his having no subsequent encounters with police.[1112] Mr Cross also agreed that the Suzuki Swift and Hyundai i30 had been sold by this time.[1113]

353 Mr Cross said the phrase 'wasn't going anywhere without them knowing the situation' was a reference to the car he was driving being involved in a home invasion.[1114] In cross-examination, he agreed that he had earlier attempted to sell the car to Mr Drew on the basis that the car had been stolen as an 'organised pinch for insurance' and not in a home invasion.[1115] At the same time, Mr Cross did not want to drive the car to Mr Drew's house as Mr Drew lived with his father who was a 'legitimate person and that car being out the front of the house may have pissed his dad off'.[1116] Mr Cross agreed that he was willing to sell Mr Drew a car that had been taken in a home invasion and lie to him about where it came from, but was not prepared to park the car in front of his father's house.[1117]

354 Mr Cross said the reference to 'doing 10 yrs min' was 'because I was an accessory',[1118] and also related to:

The life I was living, the drugs I had, the firearms I had, the cars I had, what the cars had been involved in before I got them, what had happened um I'd helped [Mr Costello]. I got him away from there and I'd supplied the gun. Like it's just all on top of me and I just knew that, you know, that I thought I'd be doing 10 years.[1119]

355 In cross-examination, Mr Cross agreed that this message was sent at a time when he had sold both cars, as well as the gun used in the homicide, none of which could now be linked to him. [1120] Referring to the gun, he said he was not worried as, 'If it's in my possession or with [Mr Costello], yes, it could be linked back to us but if it's just gone, it's gone'.[1121] He agreed that he was not worried about the gun that remained in his possession, and if he had been worried, he would have disposed of it.[1122] When it was put to him that the relatively minor crimes he was allegedly concerned about did not attract a 10 year minimum sentence, Mr Cross said, 'Have a look at the maximum sentencing. For home invasion, you get seven years for home invasion, don't you, on its own?'.[1123]

356 Mr Cross was also asked about the secret Facebook messages he sent to Ms Purdie, telling her to forget about the .22 and Suzuki Swift. According to Mr Cross:

So yes, I sent the message, um, I was telling them to forget about the Swift because it was linked to the [S]howgrounds and also the 22 that they knew about, told them to forget about that as well. Um, the reason I sent the message was it was pretty much prompted. Like I was asked am I okay, what's going on, why am I in town and that and I was just replying to that message and that's why I sent the other message saying, 'I love youse all, come and see me soon.'[1124]

...

I was pretty much telling Shannon to forget about me having a gun.[1125]

357 It appeared that Mr Cross was referring to Ms Purdie and her partner, Mr Evans, both of whom had seen Mr Cross with a .22 and the Suzuki Swift.

358 Mr Cross said the .22 referenced in his message to Ms Purdie was not the firearm used to kill Ms Pante.[1126] He agreed that he had not told Ms Purdie to say nothing about the .22 at any time before Ms Pante was shot.[1127]

359 The next day, Wednesday 5 December, Mr Sell, Mr Cross and Ms Menzies drove to New South Wales. According to Mr Cross, the reason for travelling interstate was:

I was worried about my involvement. Um, I'd received a notification on my phone from [Ms Pante], after she died. It was like a shocked face to a message that I'd sent her. I was worried that they were coming after me, and so I just - yeah, I went.[1128]

...

I knew I was involved. I didn't know where [Mr Costello] was. Um, and my last thing I had said to [Mr Costello] was to blame it all on me. And then I'd got that notification and that's really what - you know, like, maybe just yeah, just panic and leave.[1129]

360 In cross-examination, Mr Cross clarified that the notification was a 'shocked face' that he received whilst at the Discovery Park most likely on the night of 4 December, and agreed that it caused him to think that someone was operating Ms Pante's Facebook account.[1130] He clarified that it was the police he was concerned were coming after him.[1131] He thought that 'someone had [Ms Pante's] phone and had done that, and I - I assumed that the police had found her phone, and they had the phone.'[1132]

361 Mr Cross, Ms Menzies and Mr Sell stayed at a place belonging to a friend of Mr Sell in Greystanes, New South Wales. Mr Cross said he and Ms Menzies slept in the garage because, 'He had a kid in the house, and I didn't want to take the firearm anywhere near the kid'.[1133] The gun remained loaded because Mr Cross was still thinking about shooting himself.[1134] Mr Cross said that his ultimate aim was to reach Queensland to see Mr Todd's ex-girlfriend.[1135]

362 Mr Cross agreed that Ms Menzies stayed with him throughout the days that followed the shooting despite being 'completely innocent' and a 'complete bystander'[1136] and maintained that her suggestions about how to cover up the crime were not for Mr Cross' benefit.[1137]

I wanted to help [Mr Costello] and she wasn't going anywhere without me. So, in effect, she's helping [Mr Costello], by helping me.[1138]

363 Mr Cross agreed that he had two mobile phones in December 2018, one of which was registered under the name of another person and could not be traced to Mr Cross.[1139] He agreed that he changed to using the untraceable mobile phone at 8:45pm on 3 December.[1140] However, he disagreed that this was because he was setting out to arrange to burn the tent and Suzuki Swift, and said 'I would have switched to that phone because the other phone would have gone flat'.[1141]

364 Before I turn to the parties' submissions and my analysis of the evidence, it is necessary for me to address a number of applications made by the defence in the course of closing addresses regarding the admissibility and use of certain evidence.

365 At the conclusion of the defence's address, I indicated that I would be assisted by submissions in reply from the prosecution confined to those applications.

Exclusion under s 136 of the Evidence Act

366 In the course of presenting its case, the prosecution tendered Exhibit P9 (Text messages between Brodi Costello and 'Millzy' on 3 December 2018). The text messages are prima facie hearsay evidence, but were tendered without opposition under s 60 of the Evidence Act for a non-hearsay purpose - namely to establish the fact and times of correspondence. At the time of tender, the defence reserved the right to object to the hearsay use of those text messages.

367 The defence now submits that I should exercise my discretion under s 136 of the Evidence Act to exclude any hearsay use of the 'Millzy' text messages to prove the truth of their content, presumably on the basis they are unfairly prejudicial to Mr Cross, or misleading or confusing. However, the defence did not expand upon that submission, and the prosecution merely opposed the exclusion, without further exploration of the grounds for or against exclusion. In these circumstances, I can see no basis for exclusion. There is no impediment to the prosecution relying on Exhibit P9 to demonstrate the content of text conversations between Mr Costello and 'Millzy' on 3 December 2018.

Failure to put and/or challenge under Browne v Dunn[1142]

368 In his closing address, counsel for the defence alleged that the prosecution had breached its obligation under Browne v Dunn to provide various witnesses with the opportunity to address contradictory aspects of the prosecution case. These alleged breaches were said to fundamentally undermine the prosecution's capacity to meet its burden of proof because they either prevented the Court from having regard to certain prosecution submissions, affected the weight I should give to those submissions or, in the most extreme case, required that I accept what it says is certain unchallenged evidence.

369 The defence submits that the prosecution failed to:

(a) put the following propositions to Mr Cross - that:

(i) Mr Costello was on the Centrelink call at the time of Ms Pante's shooting;

(ii) Mr Cross had a specific conversation with Mr Costello after the shooting while Mr Costello was on the phone; and

(iii) Mr Cross told Mr Costello that he owed Ms Pante 20 dollars;

(b) challenge certain evidence given by Mr Cross, specifically that the Centrelink call occurred in the car after Ms Pante's shooting (see (a)(i) above); and

(c) challenge certain evidence given by Mr Costello - that:

(i) Mr Costello saw Ms Pante and Mr Cross facing each other, standing upright, and that Ms Pante was 'looking at [Mr Cross] straight ahead' when the gun was fired; and

(ii) Mr Fry was in the tent at some point in time.

370 For completeness, I note that the defence raised other issues regarding puttage and failures to challenge without a clear indication of the remedy sought, including the prosecution's alleged failure to challenge Mr Cashion's recollection of when he was told that the body in the tent belonged to a female (thereby excluding the possibility of the body being Mr Costello's body).

371 I also note that the prosecution raised a number of discrete and minor points in the course of the trial regarding the defence's puttage to Mr Costello. As these were not addressed in submissions, and have had no bearing on my consideration of the evidence, I do not discuss them here.

Prosecution breaches in relation to Mr Cross' evidence

372 The defence submits that at the conclusion of Mr Cross' cross-examination, and in the absence of a direct and specific challenge to Mr Cross' evidence that Mr Costello took the Centrelink call after Ms Pante's shooting, it was left questioning whether the prosecution's disputed[1143] opening contention that Ms Pante's shooting occurred during the Centrelink call[1144] was 'still in play or not'.[1145]

373 The defence submits that Mr Cross was never given an opportunity to give a firm and striking response to Mr Costello's evidence that Mr Costello was on the Centrelink call at the time of Ms Pante's shooting, or to respond to Mr Costello's evidence that after the shooting:

[Mr Cross] come [sic] over to me and said how sorry he was and yeah, I was then - then I was just pacing up and down the tent for probably a minute, just freaking out and not knowing what to do.

374 Nor was Mr Cross given the opportunity to respond to Mr Costello's account that before getting into the car with Mr Cross he said, 'Mate, I can't fucking get in the car', to which Mr Cross replied, 'What else are you going to do?'

375 According to the defence, the prosecution's general puttage to Mr Cross that he had fabricated his entire story (except for the identity of the persons in the tent)[1146] was not sufficient to comply with the rule in Browne v Dunn.

376 In addition, the defence argues that the prosecution failed to challenge Mr Cross' evidence that the shot he heard was 'so loud that [his] ears rang', and that the Centrelink call occurred in the car 10 to 15 minutes after Ms Pante's shooting. The defence submits that the effect of this failure is that Mr Cross' account of the call is unchallenged evidence, which it was not open to the prosecution to dispute in its closing address. It follows, that the prosecution can no longer maintain that Mr Costello is a credible witness given his account conflicts with this unchallenged evidence.

377 The prosecution strongly opposes the application. It submits that the aims of the rule in Browne v Dunn are fairness to the relevant witness and the need to ensure that a tribunal is presented with cases which meet each other (rather than 'passing like the proverbial ships in the night').[1147] The prosecution submits that its global challenge to Mr Cross' account was sufficient to achieve these aims. Mr Cross could be under no doubt as to how the case against him was being put. Given prosecution counsel's clear challenges to Mr Cross' account of the shooting and his direct assertion that Mr Cross' entire account was a fabrication, it was not necessary to challenge each specific event in turn by putting to Mr Cross that it did not occur.[1148]

378 The prosecution further submits that, even if such puttage or challenge was strictly required, the failure to do so was not productive of any injustice, and I can safely take it as a given that Mr Cross would have denied that he lied about when the Centrelink call occurred and would have rejected Mr Costello's account of what happened. The prosecution points to the opportunities, not taken by defence counsel, to rectify any alleged unfairness during the trial, for instance by objecting during cross-examination, or seeking to recall Mr Cross so that he could be given a chance to articulate his response.[1149]

379 Finally, the prosecution disputes that any such breach could have the 'catastrophic'[1150] consequences advocated by the defence, particularly if the defence is understood to argue that the prosecution can no longer impugn Mr Cross' account of the Centrelink call, and that the Court must therefore conclude that Mr Costello is not a witness of credit.

380 The rule in Browne v Dunn has been described as a rule of 'professional practice'.[1151] The rule applies in the criminal context, but with some qualifications. In R v Thompson[1152] Redlich JA explained:

In a criminal trial the rule will become relevant during the cross-examination of any prosecution or defence witness whose evidence is to be contradicted by other evidence called by cross-examining counsel or otherwise challenged. ... The rule rests upon notions of fairness. It is designed to give the witness, and the party calling that witness, an opportunity to meet that challenge and to facilitate the tribunal's assessment of the reliability and accuracy of the witness [citing R v Demiri [2006] VSCA 64, [36]]. Where matters in controversy are not 'put' to the witness in cross-examination, the tribunal's capacity to assess the credit of the witness is likely to be impeded [citing Johnson Matthey (Aust) Ltd v Dascorp Pty Ltd [2003] VSC 291; (2003) 9 VR 171, [200]]. Any relaxation of the obligation to comply with this rule increases the risk of injustice to the witness and the party calling that witness.[1153]

381 As Redlich JA further explained in R v Morrow:

It is not always clear how far counsel must go in putting their case to avoid complaint that they have not met the minimum obligations arising under the rule. The extent of the obligation will be informed by the nature of the case to be presented by the cross-examiner.[1154]

382 I am called upon to determine whether the prosecution has breached the rule in relation to Mr Cross' cross-examination. I note that the caselaw provides little guidance on the extent of the prosecution's relevant obligations, although it is likely that the prosecution's burden of proof means that a judge may more readily find the prosecution to be in breach. In this case, it is clear that the prosecution made a forensic decision to challenge Mr Cross' evidence at a global level, with specific puttage and challenges confined to discrete aspects of his account which were said to attack his credit wholesale. The defence argues that because the concurrence of Ms Pante's shooting and the Centrelink call is such a central feature of the prosecution case, it was incumbent on the prosecution to put the particulars of Mr Costello's account on the timing of the call to Mr Cross, and specifically challenge his contrary evidence.

383 The prosecution opened its case on the basis that Mr Costello was on the phone to Centrelink at the time of the shooting. Mr Cross was asked in examination in chief whether Mr Costello was on the phone at the time Ms Pante was shot, and he denied it. He also gave an account of his, Mr Costello's and Ms Menzies' movements in and out of the tent immediately following the shooting, including discussions which conflict with those Mr Costello alleges occurred. He gave evidence that Mr Costello took the call in the car 10 to 15 minutes later. In my view, the prosecution case on this point was 'manifestly clear'.[1155] The prosecution unambiguously asserted in cross-examination that none of Mr Cross' account of the events in the tent, the shooting and the immediate aftermath was true. I reject the assertion that Mr Cross' account of the Centrelink call was unchallenged.

384 The cases to which the prosecution took me involve defence counsel's failure to sufficiently put a positive case that is subsequently advanced.[1156] That cannot be said here, where the prosecution's positive case had already been advanced and closed by the time Mr Cross gave evidence. It cannot be said that Mr Cross was not appraised of the assertion that Mr Costello took the Centrelink call in the tent, or that he was denied an opportunity to refute Mr Costello's account and put forward an alternative. In fact, that is precisely what occurred: Mr Cross did put forward his account of when the Centrelink call took place. I have no doubt that, had it been specifically put to him, Mr Cross would have denied that the shooting occurred while Mr Costello was on the phone. That can be the only answer Mr Cross would have provided, in the context of the evidence he gave.

385 Even if I were satisfied that there was a breach of the rule, there is no unfairness to Mr Cross, precisely because his general denials are before the Court, along with his detailed alternative account. Even if a remedy was warranted, it is difficult to see how the rule requires me to disregard the possibility of the concurrence of the shooting and the Centrelink call and, in effect, compels me to accept Mr Cross' account on this point. Non-compliance with the duty does not entitle the judge to withdraw an issue of fact for consideration by the jury (or in this case, the judge as fact finder).[1157]

386 The more persuasive defence submission relates to the words Mr Cross is alleged to have said to Mr Costello in the immediate aftermath of the shooting, including apologising for shooting Ms Pante and saying, 'What else are you going to do?' when Mr Costello refused to get in the car. Mr Cross was not afforded the chance to respond specifically to these words. This is problematic given the defence's specific reliance on the phrase, 'What else are you going to do?' in submitting that Mr Costello acted with a consciousness of guilt and, perhaps more critically, that Mr Cross showed a desire to help Mr Costello.[1158] While the prosecution does not rely on the purported apology as incriminating conduct by Mr Cross,[1159] it does rely on the phrase, 'What else are you going to do?' to support Mr Costello's account that he felt pressured to get into the car.[1160]

387 Therefore, there does appear to be unfairness arising from the failure to put these statements to Mr Cross, as he did not have the opportunity to deny having said them, or to explain what was meant by those words. I have taken this non-compliance into account when determining whether to accept that Mr Cross said these things and, if so, the weight I should give to that evidence.[1161]

Prosecution breaches in relation to Mr Costello's evidence

388 The defence submits that critical evidence given by Mr Costello was not challenged by the prosecution and, as a result, not only is the prosecution prevented from making submissions contrary to that evidence, but this Court risks an appeal court determining that it was not open to ignore or reject the unchallenged evidence.[1162]

389 The defence submits that it is not open for the prosecution to make submissions contrary to Mr Costello's physical demonstrations of Ms Pante's shooting, or contrary to the propositions accepted by Mr Costello in cross-examination about the relative positioning of Mr Cross, the gun and Ms Pante when the shot was fired. The defence asserts that Mr Costello gave unchallenged evidence that Ms Pante was 'standing upright and facing the accused' and looking at Mr Cross 'straight ahead' when she was shot, and that he would have told police if her head had been in any other position when she was shot.[1163] Those propositions, it is submitted, are inconsistent with the prosecution's submission that Ms Pante might have ducked her head and angled it downwards immediately before she was shot.[1164] According to the defence, I must disregard that submission.

390 The prosecution submits that Mr Costello's evidence was more nuanced, and never purported to be a precise description of the relevant body positions, given he only saw those positions and Ms Pante's shooting out of the periphery of his vision.

391 As explained below at paragraphs 517 to 520, I am not persuaded that Mr Costello's relevant evidence included the degree of precision asserted by the defence, and hence I do not find a breach of Browne v Dunn.

392 However, even if there was a breach, no unfairness follows. The relevant unfairness would be to the prosecution and to Mr Costello, the witness denied an opportunity to respond to the assertion he was mistaken. I am not satisfied that the Court has been denied the opportunity to consider relevant evidence from Mr Costello about his recollection of the respective positions of Mr Cross and Ms Pante at the time of the shooting. The prosecution does not assert that Mr Costello lied. At most, the prosecution says he is mistaken in so far as his evidence can be understood as excluding the possibility that Ms Pante's head was angled downwards to any degree. The case relied upon by the defence, R v Ritchie,[1165] involved a very different situation where the prosecution impugned the evidence of the accused's husband as biased, without ever putting that to him.

393 Finally, even if there was a breach, I do not accept (to the extent it was submitted by defence) that this is a case of unchallenged evidence which I, as the fact finder, am not entitled to reject or ignore.

394 Defence counsel took me to a number of cases where the defence relied on unchallenged evidence in submitting that the prosecution had not met its burden of proof. In Ferguson v The Queen,[1166] the accused's brother gave unchallenged evidence that the accused had a repetitive coughing fit, and became silent and unresponsive, immediately before the subject car crash. This supported the defence position that the prosecution had not established beyond reasonable doubt that the accused's driving was conscious and voluntary. In Pell v The Queen,[1167] aspects of Monsignor Portelli's evidence were unchallenged. The defence argued, and the High Court held, that the unchallenged evidence created a series of compounding improbabilities which necessarily gave rise to a reasonable doubt that the accused engaged in sexual penetration of a minor and indecency in front of a minor. In Spurritt v The Queen,[1168] the prosecution accepted that the relevant witness was present when the complainant was allegedly assaulted, but failed to challenge that witness' evidence that they did not see the alleged assault. That unchallenged evidence meant that the prosecution had not excluded as a reasonable possibility that the assault did not occur.

395 Here, the defence clearly does not advocate for acceptance of what is said to be Mr Costello's unchallenged evidence - namely that Ms Pante's head was upright and facing forwards when Mr Cross shot her. Rather, the defence appears to advocate for acceptance of only one half of that proposition (that Ms Pante's head was upright and facing forwards when she was shot), while simultaneously advocating rejection of the other half (that Mr Cross shot Ms Pante). Artificial segmentation of a witness' evidence in this way cannot sensibly be an outcome of the application of Browne v Dunn.

396 By contrast, the other purportedly unchallenged evidence of Mr Costello - that Mr Fry entered the tent at some point before Ms Pante was shot - is an account the defence submits I must accept entirely. The defence took issue with submissions made by the prosecution to the effect that Mr Fry may not have entered the tent, on the basis that this proposition was never put to Mr Costello. The problem with the defence's argument is that it effectively advocates for the resolution of conflicting accounts on the arbitrary basis that only one of the witnesses was challenged on the relevant point (ostensibly, that the unchallenged evidence of Mr Costello must be accepted and the challenged evidence of Mr Fry must be rejected). Again, that cannot sensibly be an outcome of the application of Browne v Dunn.

397 The prosecution submits that it is open for me to accept either (but obviously not both) of Mr Costello's and Mr Fry's contradictory accounts of whether Mr Fry entered the tent at some point in time. It should be noted that if I were to find that Mr Fry did enter the tent, it would be on the basis that I reject Mr Fry's account and prefer either or both of Mr Costello's and Mr Cross' accounts on this point. Both Mr Costello and Mr Cross place Mr Fry in the tent; Mr Costello gave an account of discussions happening around him, the content of which he did not hear; whereas Mr Cross described particular discussions involving himself, Mr Fry, Ms Pante, and Mr Costello. If I were to accept Mr Fry's account and find that he never entered the tent, it would be on the basis that I reject both Mr Costello's and Mr Cross' accounts on this point.

398 The defence submits that I should direct myself in accordance with s 32 of the Jury Directions Act that Mr Costello's evidence may be unreliable because, either he is 'criminally concerned' as defined by s 31(c) of the Jury Directions Act, or by virtue of the fact that he is the alternate suspect in Ms Pante's homicide, following the reasoning in R v Faure.[1169]

399 The prosecution submits that giving such a warning is inappropriate, and disputes the characterisation of Mr Costello as 'criminally concerned'. Determining whether Mr Costello is a witness who might reasonably be supposed to be criminally concerned necessarily involves determining whether he is telling the truth that Mr Cross shot Ms Pante, and therefore relies on 'bootstrap reasoning'. The prosecution submits that Mr Costello's alleged unreliability can be appropriately addressed through submissions on his motive to lie.

400 In considering whether there are good reasons not to warn myself on this point, I note that Mr Costello is the prosecution's primary witness. Although the prosecution points to some corroborating evidence to support his account, he is the only witness who is said to have seen Mr Cross shoot Ms Pante. The defence submits, and I agree, that if I do not accept Mr Costello's account of Ms Pante's shooting, the prosecution will have failed to satisfy me beyond reasonable doubt that Mr Cross killed Ms Pante. Both parties agree that the fact of the shooting is not something about which Mr Costello can be mistaken, and so his truthfulness, rather than his accuracy, is at the core of this case. His credibility was hotly challenged by the defence. In this context, any motive for Mr Costello to lie is highly relevant to the issues in dispute.

401 The defence applies for a warning under the recognised category of 'criminally concerned' witness in s 31(c) of the Jury Directions Act. The prosecution's criticism that applying the 'criminally concerned' label to Mr Costello involves a level of impermissible 'bootstrap reasoning' is a fair one. The 'criminally concerned' category more neatly encompasses co-accused persons and accomplices whose involvement is admitted or before the court for determination as part of the same indictment.

402 However, s 31 is an inclusive list, and other circumstances may produce a conclusion that evidence is of a kind that may be unreliable such that a s 32 warning is warranted.[1170] The defence relies on R v Faure.[1171] In that case, Mrs Faure gave evidence against her husband. She alleged that he had confessed to her that he murdered the deceased. Mrs Faure's husband also gave evidence, and alleged that it was in fact Mrs Faure who had confessed to him that she had murdered the deceased. There was evidence that Mrs Faure had access to the firearm allegedly used by her husband to kill the deceased, a motive to confront the deceased, and an opportunity to shoot the deceased. Furthermore, there was an existing stormy relationship between the accused and Mrs Faure, including that she had threatened to have him killed, and had accused him of abusing her daughter. Importantly, Mrs Faure did not initially tell police about her husband's confession. As a result of these factors, it was clear that Mrs Faure had an interest in inculpating the accused while denying she was responsible. Justice Hampel (Smith and J D Phillips JJ agreeing) held that an unreliability warning was appropriate given the risk that a person with such a significant interest in the outcome of the case may have fabricated or tailored their evidence to protect that interest.[1172]

403 The case before me is different in a number of respects. There is no history of acrimony between the accused man and the witness in this case, and Mr Costello identified Mr Cross as Ms Pante's killer when he first spoke with police. Nevertheless, one critical circumstance is similar - namely, two competing accounts of a homicide, each pointing the finger at the other. In R v Faure, the conflict concerned confessions, here it concerns direct accounts of the homicide itself. I am not satisfied, in the circumstances, that there is a good reason not to give the warning, given Mr Costello's interest in inculpating Mr Cross and denying that he was responsible for Ms Pante's death.

404 Accordingly, I warn myself about the need for caution when considering the evidence of Mr Costello in accordance with s 32 of the Jury Directions Act. I must give myself this warning because Mr Cross accuses Mr Costello of having shot Ms Pante, and thus, Mr Costello is an alternate suspect with a significant interest in the outcome of the case and a potential motive to fabricate or tailor his evidence in order to exculpate himself.

405 I will commence my analysis by considering the first element of murder - that Mr Cross committed an act or acts which caused Ms Pante's death.

406 The prosecution case can be broadly divided into the following components - that:

(a) Mr Costello witnessed Mr Cross shoot Ms Pante, that he is a credible and reliable witness, and his account should be accepted;

(b) Mr Cross gave a version of events which should be rejected as a fabrication; and

(c) the other evidence supports Mr Costello's account, and not Mr Cross' account, of Ms Pante's shooting.

408 The parties agree that the fundamental issue in this trial is Mr Costello's credibility. There is no suggestion that Mr Costello was mistaken about the fact of the shooting. There is also no evidence that Ms Pante's shooter could be anyone other than Mr Cross or Mr Costello. So, either Mr Costello witnessed Mr Cross shoot Ms Pante, or lied about it because he was concealing his own shooting of Ms Pante.

409 The prosecution characterised Mr Costello as 'plainly an honest witness',[1173] who remained placid over four days in the witness box and in the face of vigorous cross-examination. His account was consistent over time, he made reasonable concessions, and noted when he could not recall certain information. He came forward to police voluntarily, and gave a comprehensive account, answering all of the police's questions.

410 The prosecution addressed what it anticipated to be the key attacks by the defence on Mr Costello's credibility, including:

(a) the alleged implausibility of the timing and duration of the Centrelink call;

(b) Ms Callison's evidence that she saw a man with dark shoulder length hair who had been setting up the glamping tent on 2 December (agreed to be Mr Costello) reattend the Showgrounds on the afternoon of 3 December, in apparent contradiction with Mr Costello's evidence that he was in Colac;

(c) alleged inconsistencies between Mr Costello's evidence and Ms Pante's autopsy results;

(d) the assertion that Mr Costello's conduct after the shooting indicated a consciousness of guilt; and

(e) Mr Costello's alleged motives to brandish a gun at Ms Pante.

412 It is an agreed fact that the Centrelink call commenced at 8:43am on 3 December and lasted for 4 minutes and 59 seconds. The prosecution submits that it is plausible that Ms Pante's shooting occurred during the call. Mr Costello was clearly mistaken when he remembered the call occurring at 8:00am. Although it might appear bizarre and entirely unheroic that Mr Costello stayed on the phone in the immediate aftermath of the shooting, such behaviour is not inconsistent with the response of someone coming down off a prolonged drug binge, in need of sleep, and experiencing a very human response to the trauma of seeing his friend shot.

413 The Centrelink officer did not report anything unusual about the call. That fact alone is not sufficient to conclude that there was no gunshot during the call, given the absence of evidence on the quality of the phone line and the degree of attention paid by the officer during the call.

414 Mr Costello's estimates of the duration of events during the call total more than five minutes. The prosecution submits that Mr Costello should not be precisely held to these timeframes. Rather, each was merely intended to convey the idea of a short period of time, and in so far as they are taken literally, the Court can comfortably conclude that Mr Costello was mistaken about the precise time periods. It is entirely plausible that, within the space of five minutes, the following events could occur: Mr Cross and Ms Pante enter the tent and begin arguing; Mr Costello interjects and tells them to be quiet; Ms Pante is shot; in the frenetic aftermath, those present leave the tent; and Mr Cross and Mr Costello converse briefly and get in the car before Mr Costello ends the call. Mr Hollonds' and Mr Fry's evidence did not contradict this possibility.

415 The prosecution also relies on the fact that Mr Costello told police to obtain the recording of the Centrelink call (which he reasonably assumed would exist) for evidence of the gunshot and preceding argument between Mr Cross and Ms Pante. Were he the shooter and fabricating a story, it is highly unlikely Mr Costello would voluntarily wed himself to a narrative involving only a very narrow window in which the shooting could have occurred, and which could be objectively disproved by other evidence.

416 Ms Callison was adamant that she saw one of the men who set up the glamping tent walking from the tent to the shower block during the afternoon of Monday 3 December. The prosecution submits that Ms Callison's account, whilst well-meaning and given in the spirit of assisting the police investigation, was utterly implausible, to the point of being ludicrous. It would require accepting as a reasonable possibility that Mr Costello returned to the location where he had that morning shot Ms Pante and then strolled around the campsite in full view of other campers and at risk of being seen by the caretaker to whom he is said to have provided false details in order to evade apprehension. It would further require accepting as a reasonable possibility that Mr Costello entered the tent where Ms Pante's body lay, and emerged with a large pile of neatly folded clothes, despite the chaos of the aftermath of the shooting and his being homeless, sleep deprived and in drug withdrawal. Finally, if Mr Costello's presence at the campsite is taken to imply that he was responsible for the tent fire, that would also require accepting that he again left and returned to the campsite or otherwise stayed hiding in a tent with a dead body until the early hours of 4 December when the fire was lit.

417 The prosecution submits that Ms Callison demonstrated an unwillingness to concede that she might be mistaken, and that the Court should reject her evidence on this point.

418 Dr Lynch gave evidence that Ms Pante was shot in the forehead, and that the bullet which killed Ms Pante travelled at an angle of approximately 45 degrees to the horizontal plane of Ms Pante's head and an angle of approximately 30 degrees to the vertical plane of Ms Pante's head. The prosecution anticipated that the defence would submit that the angle of the bullet tract is inconsistent with Mr Costello's account of Ms Pante's shooting because:

(a) Ms Pante was 164 centimetres tall and Mr Cross is only 173-174 centimetres tall;

(b) Mr Costello demonstrated and described Mr Cross holding his arm outstretched and parallel (or close to parallel) to the ground when he shot Ms Pante;

(c) Mr Costello accepted in cross-examination that Mr Cross and Ms Pante were facing each other, standing upright, and that Ms Pante's head was positioned straight ahead when she was shot; and

(d) this angle is consistent with Mr Costello, who is 6 foot 7 inches tall, having shot Ms Pante.

419 The prosecution accepts that the autopsy results do not exclude the possibility that Mr Costello shot Ms Pante but, critically, asserts that they are nevertheless consistent with Mr Costello's account of the shooting. The prosecution submits that the defence invites a misinterpretation of Mr Costello's evidence and attributes a level of precision which Mr Costello never intended to convey.

420 The prosecution submits that Dr Lynch's evidence did not necessarily indicate that the shooter's arm and the gun were positioned at 45 degrees relative to the ground. Rather, the 45 degree angle of the bullet tract relative to the horizontal plane of Ms Pante's head could be explained by flexion of Ms Pante's head, or a combination of head flexion and angulation of the gun relative to the ground. The prosecution submits that Mr Costello's account is consistent with Ms Pante's head being flexed at the time she was shot. Even if Mr Costello is said to have accepted that Ms Pante's head was straight and upright when she was shot, he could be mistaken on this point, particularly given that he saw the shooting only out of the periphery of his vision and while distracted with the Centrelink call.

421 The prosecution acknowledges that Mr Costello's conduct after the shooting was less than exemplary. On his own account, he stayed on the Centrelink call in the immediate aftermath, participated in an attempt to conceal Ms Pante's shooting by buying a padlock and booking another night at the campsite, threatened suicide, turned his mobile phone off, and failed to raise the alarm with police or anyone else until later the next day. He avoided confronting the reality of his situation, went home to his mother's house and slept for the afternoon, night and into the next day, and was prompted or persuaded to go to police following a discussion with Ms Walton and Mr Cashion.

422 The prosecution submits that I should understand Mr Costello's conduct, whilst unheroic, as a human response to a traumatic event, the product of the impact of witnessing a shooting, in circumstances where he was coming down from a prolonged drug binge and needed sleep.

423 The prosecution submits that Mr Costello is not the kind of person to rapidly become enraged in the way Mr Cross alleged - that is, brandish a weapon after being denied drugs and subsequently insulted. His unguarded previous interactions with Ms Pante reveal that he stayed calm in the face of abusive messages. The solitary message from Mr Costello to Ms Pante, relied on by defence as an accusation of infidelity, is isolated and open to other interpretations than an expression of jealousy. Similarly, there is nothing in the evidence of their interactions to suggest that Mr Costello would be angered by insinuations of homosexuality. It is implausible that Mr Costello would be wildly enraged by these alleged triggers and impulsively brandish a gun he thought was unloaded to express that rage.

424 The prosecution submits that I should not believe Mr Cross' account that Mr Costello shot Ms Pante, and should treat it as a fabrication. The fact that some of his evidence aligns with evidence given by other witnesses, including Mr Costello, does not demonstrate that it is credible, but instead indicates a reconstruction made with the benefit of access to witness statements and evidence given at the committal and s 198B hearings.

425 The prosecution advances that submission on three bases - namely that Mr Cross' account is:

(a) too precise and comprehensive, especially given the passage of time since the relevant events and his own heavy drug use at the time;

(b) inherently implausible; and

(c) dependent on certain key aspects, which, once rejected, completely undermine his entire account (such as the premises for Mr Cross' leaving the gun on the bed and Mr Costello's alleged jealousy).

426 The prosecution submits that Mr Cross' certainty and precision in the context of his admitted level of drug use (which was broadly similar to a number of other witnesses, including Mr Costello) can only indicate a conveniently constructed narrative. In particular, the prosecution points to Mr Cross' clear memory of: the particular content of four separate voice calls with Ms Pante in the early hours of 3 December; Mr Hollonds' driver's side window being wound up when he last saw Mr Hollonds' car at the campsite; and there definitely being no mallet in the tent when Mr Cross was last inside.

427 The implausibilities, according to the prosecution, include that:

(a) Ms Pante was trading sexual favours for ice with Mr Cross, and more specifically, that she offered to perform oral sex in front of Mr Costello for Mr Costello's exclusive benefit, but knowing that Mr Costello would disapprove;

(b) the reason Ms Pante arranged for Mr Cross to attend the campsite was for Mr Cross to provide Mr Costello with ice, and not for some sort of business transaction of her own;

(c) Mr Cross was such a close friend of Mr Costello that he would help Mr Costello conceal a homicide, but would not provide him drugs for free or on 'tick' (credit);

(d) Mr Costello reacted with wild rage to accusations of homosexuality and insinuations of Ms Pante's infidelity, and expressed that rage by brandishing a gun he thought was unloaded;

(e) Mr Costello answered a phone call from Centrelink 15 minutes after he shot and killed Ms Pante, and Mr Cross (who accepted he was concerned about police tracking Mr Costello's phone) allowed Mr Costello to speak for the full 4 minutes and 59 seconds with minimal protest;

(f) when Mr Cross told Mr Costello to 'put the blame on me' or 'put it all on me' he meant only to reassure Mr Costello that Mr Cross would return and not raise the alarm with police, and this phrase also reflected Mr Cross' sense of guilt for having supplied the loaded gun used to kill Ms Pante; and

(g) Mr Costello desperately wanted to stay together with Mr Cross and Ms Menzies, but left their company at the earliest opportunity.

428 The prosecution also gave notice pursuant to s 19(1) of the Jury Directions Act of its intention to submit that Mr Cross engaged in a range of conduct which I could rely on as incriminating conduct. That conduct falls into two broad categories: Mr Cross' concealing the shooting and Mr Cross' fleeing the jurisdiction. Much of the conduct in the notice was uncontested. However, on Mr Cross' account, he did not:

(a) direct Mr Costello to buy a new padlock and organise another night at the campsite;

(b) lock the tent with the new padlock and retain the key;

(c) set fire to the tent containing Ms Pante's body, or direct someone to do so;

(d) set fire to the Suzuki Swift or direct someone to do so; or

(e) retain possession of the gun which was used to shoot Ms Pante.

429 The prosecution submits that these denials are highly implausible. Even on his own account, Mr Cross took charge of the initial response to the shooting and steps to conceal Ms Pante's body. The prosecution invites me to conclude that Mr Cross burnt the tent or arranged for the tent to be burnt because: he retained the only key to the tent; the suggestion to burn the tent was made by Ms Menzies, who remained in Mr Cross' company; and Mr Costello has an alibi and had his mobile phone turned off throughout 3 and 4 December. Further, Mr Cross' account of being prompted to retrieve the Suzuki Swift only after learning about the tent fire, and the Suzuki Swift coincidentally turning up burnt, are inherently implausible. It is likewise too convenient that Mr Cross sold the gun used in Ms Pante's shooting to someone who is now dead and cannot be questioned by police, and that the weapon is remarkably similar to the one found in Mr Cross' possession in New South Wales. While LSC Griffiths' evidence does not positively establish that the gun found in Mr Cross' possession is the gun used to kill Ms Pante, it does not exclude that possibility.

430 The prosecution submits that the only reasonable explanation for the above conduct is that Mr Cross believed he shot and killed Ms Pante.

431 The prosecution also submits that Mr Cross' explanation of the conduct to which he did admit is highly implausible. Counsel for the prosecution went so far as to characterise Mr Cross' messages to Mr Drew as an express, and not merely implied, admission of guilt.

Other evidence supports Mr Costello's account

432 The prosecution submits that the other evidence led at trial supports Mr Costello's account. Mr Costello did not have the benefit of any other witness accounts or phone records when he gave his account to police, yet his account is consistent with that evidence. In addition to the agreed facts and Mr Cross' uncontested conduct, the prosecution points to the evidence of:

(a) Mr Callison - that one of the men who set up the tent on 2 December (agreed to be Mr Costello) was in the shower block between approximately 8:00am and 8:15am on 3 December, consistent with Mr Costello's account;

(b) Mr Evans and Ms Purdie - that their description of a gun owned by Mr Cross is similar to the gun drawn by Mr Costello and the gun found in Mr Cross' possession in New South Wales, and Mr Evans said that Mr Cross fired that gun while in his company;

(c) Mr Hollonds and Mr Fry - that they heard an argument or raised voices coming from inside the tent, and that Ms Pante was angry or agitated before she returned to the tent, which is consistent with Mr Costello's account of an argument between Mr Cross and Ms Pante;

(d) Dr Lynch - that the injury inflicted by the bullet would have instantaneously caused Ms Pante to lose control over her body, consistent with Mr Costello's account;

(e) various crime scene photographs - depicting Ms Pante's body lying in a position consistent with Mr Costello's sketches;

(f) Ms Walton - that Mr Costello was in Colac from the afternoon of 3 December until they travelled to the Geelong Police Station together the following day, consistent with Mr Costello's account; and

(g) LSC Griffiths - that the gun found in Mr Cross' possession (which was very similar to that drawn by Mr Costello) could have been the gun used to kill Ms Pante.

433 Finally, the prosecution submits that the inconsistencies between Mr Costello's account and the accounts of Mr Fry, Mr Steele, Ms Walton and Mr Cashion do not detract from Mr Costello's credibility.

434 Mr Costello described, and Mr Cross agreed, that Mr Fry entered the tent at some stage. Mr Fry gave evidence that he never entered the tent, and never had a conversation with Mr Cross. Mr Hollonds does not recall Mr Fry entering the tent. The prosecution emphasises that, whilst Mr Cross' account is dependent on Mr Fry entering the tent to explain how and why the gun was brought into the tent, the prosecution case is not contingent upon a positive finding that Mr Fry was in the tent.

435 The prosecution cross-examined Mr Steele pursuant to s 38 of the Evidence Act and submits that he is mistaken that Mr Costello told him that his surname was 'Brody' and provided a mobile phone number that omitted one digit.

436 Mr Costello's account of the afternoon of 4 December differs in some respects from the accounts of Ms Walton and Mr Cashion. The prosecution refutes the defence's assertion that Mr Costello, Mr Cashion and Ms Walton colluded to protect Mr Costello. The prosecution submits that their accounts plainly have not been harmonised, which suggests that each is being honest, even if they are mistaken about certain aspects of 4 December.

437 The prosecution disputes the characterisation of Ms Walton's evidence as contaminated by her reading of Mr Costello's police statement in March 2022 (a fact which she volunteered) and observing Mr Costello's committal evidence, or the late stage at which she gave her own police statement. Ms Walton had no reason to believe her son was an alternate suspect when she gave her police statement and evidence at her s 198B hearing.

438 The defence outlined 14 points said to individually and cumulatively raise a reasonable doubt that Mr Cross shot Ms Pante. These points can be broadly categorised as follows:

(i) the Court should conclude that Mr Costello was seen at the Showgrounds on the afternoon of 3 December, contrary to his own evidence and the alibi provided by Ms Walton. He was the only person who had the key to the padlock and who could have burnt the tent. His denial that he returned to the Showgrounds demonstrates that he is lying, including when he says that he saw Mr Cross shoot Ms Pante (points one and nine);

(ii) Mr Costello could not have been on the phone to Centrelink when Ms Pante's shooting occurred. He lied about being on the call to conceal the fact that he shot Ms Pante (points two and three);

(iii) Mr Costello gave a description and demonstration of the mechanics of the shooting which is inconsistent with the forensic evidence. His account is not a mistake, but a lie (point four);

(iv) Mr Costello felt guilty and acted as a guilty man would (points five and six);

(v) Mr Costello's account conflicts with the independent evidence of Mr Hollonds and Mr Fry. Therefore, he must be lying when he says that he saw Mr Cross shoot Ms Pante (point seven); and

(vi) Mr Costello had a motive to lie and is an inherently unreliable witness (points eight and 13);

(b) Mr Cross is a credible witness who gave a highly plausible denial of the charge against him, and had no motive to kill Ms Pante (points 10, 11 and 14); and

(c) Mr Cross did not engage in some of the alleged incriminating conduct, and the conduct he did engage in is reasonably explained by his protecting Mr Costello or having committed other lesser offences (point 12).

440 The defence submits that I should have no trouble concluding that Ms Callison saw Mr Costello at the Showgrounds on the afternoon of 3 December. Ms Callison was a reliable and independent witness who showed herself to be diligent, rigorous and conscientious in documenting her memories in contemporaneous records. The recording of the relevant sighting on 'Sunday' in her police statement is clearly a mistake, as the statement links the sighting to the tent setup 'the day before'. Ms Callison corrected that mistake in her viva voce evidence, and her typed notes and DS Farrell's notes of her reported sighting both record the sighting on the Monday. Ms Callison also linked the sighting to her husband's discovery of a power outage, which occurred on the Monday. In any case, Ms Callison could not have been mistaken about who she saw. She remembered Mr Costello from his setting up the tent. There was no evidence that Mr Cashion, the other man Ms Callison saw on the Sunday (but did not talk to), attended the site on the Monday.

441 The defence contrasts Ms Callison with Ms Walton. The effect of Ms Walton's evidence, if accepted, is that Mr Costello could not have been the person that Ms Callison saw, because he was in Colac. According to the defence, this alibi is a fabrication, a product of Ms Walton's desire to protect her son. Her evidence was contaminated by having read Mr Costello's record of interview, sitting through his committal evidence, and reading his police statement while he was giving evidence in this trial. Ms Walton was an evasive witness who gave vague answers. She needed prompting to recall what day or date Mr Costello returned home, yet could remember that he was home before she prepared dinner. She had not seen Mr Costello for three or four months but was apparently unconcerned when he arrived through the back door and went straight to bed. Her account of his motivation to go to police conflicts with Mr Costello's and Mr Cashion's evidence. The defence submits that the three colluded to protect Mr Costello and conceal his involvement in Ms Pante's killing.

442 The defence submits that Mr Costello took the risky step of returning to the Showgrounds because Mr Cashion might return at any moment to pack up the tent and would discover Ms Pante's body, or any of Mr Hollonds, Mr Fry, Mr Cross and Ms Menzies might go to the police.

443 Once it is accepted that Mr Costello returned to the Showgrounds, it follows that Mr Costello had access to the tent, and that he lied when he said he was in Colac. The defence submits that in all the circumstances, it is plausible that Mr Costello lit the tent fire. He demonstrated himself to be capable of taking the risk of reattending the tent in daylight. He had his mobile phone turned off so that he could not be contacted or tracked. Had Mr Cross set the fire, he could have used fuel in his jerry cans and staged Ms Pante's death as a suicide by leaving behind the gun. Mr Costello did not have access to the gun, which explains why it was not found with Ms Pante's body.

444 Ms Callison's evidence demonstrates that Mr Costello is a liar, and raises a reasonable doubt that Mr Cross shot Ms Pante. On that basis alone, Mr Cross should be acquitted.

445 The defence submits that a reasonable doubt about Mr Cross' guilt arises from Mr Costello's lying about being on the phone to Centrelink when Ms Pante's shooting occurred. The Centrelink 'alibi' suffers from a number of implausibilities or impossibilities - that:

(a) Mr Costello stayed on the phone after Ms Pante's shooting to ensure his benefits went through;

(b) the Centrelink officer did not report hearing anything unusual on the call, despite a gunshot occurring in the background;

(c) all of the events described by Mr Costello occurred within 4 minutes and 59 seconds (being the agreed length of the call);

(d) Mr Costello did not know the content of any of the conversations that occurred inside the tent, including with Mr Fry;

(e) the shooting happened as late as between 8:43am and 8:48am (being the agreed start and end of the call);

(f) Mr Costello stayed in the tent when his call was repeatedly interrupted by Ms Pante and Mr Cross arguing, rather than moving outside; and

(g) Mr Costello did not tell anyone about the Centrelink call until his police interview.

446 The defence submits that Mr Costello's evidence about the mechanics of Ms Pante's shooting, constituted by his physical demonstrations and descriptions in the witness box and police interview, includes the following key propositions:

(a) Mr Cross was standing upright;

(b) Mr Cross was holding the gun in his right hand;

(c) Mr Cross' hand and arm were outstretched and perpendicular to his body;

(d) Ms Pante was 'standing upright and facing' Mr Cross;

(e) Ms Pante was looking at Mr Cross 'straight ahead', and her head was not in any other position, including angled downwards;

(f) Mr Cross shot Ms Pante at 'point blank' range of up to 30 centimetres;

(g) Ms Pante 'just dropped' when she was shot; and

(h) Ms Pante fell backwards (in relation to Mr Cross) and landed in that position.

447 The defence relies on the evidence of Dr Lynch that the tract of the bullet through Ms Pante's brain was at a decline of approximately 45 degrees. Dr Lynch did not exclude the possibility of Ms Pante's falling backwards as a result of the injuries to her brain stem. However, he did exclude the possibility that the gun was fired at intermediate range, being approximately an inch to several feet away, as there was no stippling present.

448 The defence argues that this forensic evidence is inconsistent with what Mr Costello purportedly saw, and that I should therefore reject his account of the shooting as a lie. The inconsistency arises because:

(a) the 45 degree angle could not be achieved with Mr Cross standing and holding the gun in the way Mr Costello described unless Ms Pante's head was in some other position, such as ducked (which is not Mr Costello's evidence);

(b) Mr Costello's account of the distance at which Mr Cross shot Ms Pante might fall within the intermediate range, which was excluded by Dr Lynch; and

(c) the crime scene photographs and Mr Costello's own sketches indicate that Ms Pante's head, rather than her feet, fell closer to where Mr Cross was located by Mr Costello, suggesting that she did not fall backwards in relation to Mr Cross.

449 The defence portrays Mr Costello as a man with a guilty conscience by reference to his own words and conduct after Ms Pante's shooting. The defence points to, amongst other things, the fact that Mr Costello:

(a) threatened suicide, stating, 'Give me the gun, I'm going back there to shoot myself' and claimed in evidence to have forgotten saying those words or telling them to police;

(b) agreed in cross-examination that in the immediate aftermath of Ms Pante's shooting he was worried that if he stayed in the tent with a dead body he would be in trouble for murder;

(c) agreed in cross-examination that he considered himself the 'prime suspect' for Ms Pante's shooting the next day;

(d) spoke to a lawyer prior to giving a police statement;

(e) sent a message to Mr Cashion saying, 'Crossy bought us another night man' to represent that Ms Pante was still alive;

(f) paid for another night at the campsite and gave false details to Mr Steele to conceal his involvement in Ms Pante's death;

(g) purchased a new padlock from a store he knew did not have security cameras;

(h) collected his belongings from the tent to remove evidence tying him to the crime scene;

(i) changed into a new vehicle, the Hyundai i30, that was not connected to the Showgrounds;

(j) failed to raise the alarm with various people he encountered, and failed to go to the police at the earliest opportunity; and

(k) turned his mobile phone off and kept it off, thereby operating under what defence counsel described as a 'telephone blanket of darkness'.[1174]

Other evidence conflicts with Mr Costello's account

450 The defence submits that Mr Costello's account does not match the independent evidence of Mr Hollonds and Mr Fry. This absence of corroboration supports the submission that Mr Costello has lied.

451 While it maintains that Mr Hollonds' credit remains in issue (to the extent his evidence conflicts with Mr Cross' evidence), the defence asserts that the following aspects of his evidence can be relied upon - that:

(a) Ms Pante and Mr Cross were interacting in an amicable and friendly way;

(b) Ms Pante left the tent unaccompanied by Mr Cross;

(c) nothing was wrong when Ms Pante returned to Mr Hollonds' car; and

(d) Ms Pante was in the tent for only a short time before Mr Hollonds heard a gunshot.

452 The defence is generally critical of Mr Fry's account that he: never got out of the car; never spoke with Mr Cross; did not have a drug debt; did not have a plan to rob a drug dealer; did not know a man named Jeremy Bingham; and never entered the tent.[1175] The defence says that it is open for me to reject everything Mr Fry said. It is submitted that he was lying to conceal his own involvement in criminal activity. However, the defence simultaneously relies on discrete aspects of Mr Fry's account which he allegedly had no motive to lie about, including the period of time between Ms Pante's entering the tent and his hearing a gunshot.

453 The defence submits that Mr Costello's evidence should not be accepted because he has a motive to lie, being concealment of the fact that he shot Ms Pante.

454 The defence refutes the prosecution's characterisation of Mr Costello's conduct after Ms Pante's shooting as the actions and reactions of an innocent man. The defence says that the following actions indicate a callous person acting out of self-interest and seeking to shift the blame for his own conduct:

(a) treating Mr Cross' statement that he could 'put it all on him' as a license to inculpate Mr Cross, when it was only intended to reassure Mr Costello;

(b) after being told by Mr Cashion about the tent fire and body, discussing the matter without any expression of care or concern for Ms Pante;

(c) opening up to Ms Walton only when she became suspicious of his behaviour, and concocting a story where he was a witness rather than the perpetrator of Ms Pante's death;

(d) concocting a version of events in the hours before going to police; and

(e) going to police and blaming Mr Cross, and wedding himself to an incoherent version of events.

455 Counsel for the defence characterised Mr Cross as an honest, candid and convincing witness, who was frank in his evidence, no matter how distasteful or ugly. He openly volunteered information about his criminality which demonstrates his candour. He expressed genuine regret and remorse for his involvement in concealing Ms Pante's shooting, and considered himself morally (but not legally) culpable for her death by denying Mr Costello drugs and allowing him access to a loaded gun. Mr Cross was so tormented that he considered suicide in the days after the shooting.

456 The defence submits that Mr Cross should be believed because his denials and his account are highly plausible. If Mr Cross had fabricated his story, he would not have made it as convoluted as real life proved to be, involving drug deals, stolen cars, sexual favours, multiple firearms, and requests for guns to rob a drug dealer. Had he been lying, it would have been easier to say that Ms Pante attacked him, and that he acted in self-defence. Mr Cross could have aligned his story with the known history of the Hyundai i30. The fact that his account reflects a misapprehension about it being stolen in a home invasion that was readily correctible before he gave evidence demonstrates that Mr Cross did not concoct his account.

457 The defence submits that Mr Cross' account of Mr Costello's angrily brandishing what he thought to be an unloaded gun is eminently believable because:

(a) Mr Costello was a drug addict who was coming down off drugs that morning and depended on those drugs to function;

(b) Mr Costello's relationship with Ms Pante revolved around drugs and had ups and downs, and Mr Costello and Ms Pante were more likely to argue when both deprived of drugs; and

(c) although Mr Costello did not express his shock and distress at realising the gun was loaded in words, his pacing and placing his hands on his face after shooting Ms Pante are indicative of surprise and anguish.

458 Finally, the defence submits that Mr Cross did not engage in some of the alleged incriminating conduct, and the conduct he did engage in is reasonably explained by his protecting Mr Costello or having committed other lesser offences. The prosecution's reliance on this conduct reflects its concerns about the strength of Mr Costello's evidence. Mr Cross' explanations for why he acted in the way he did demonstrate that belief of guilt is not the only reasonable explanation for that conduct.

459 The defence maintains that Mr Cross was not responsible for: directing Mr Costello to buy a padlock and arrange another night at the campsite or to collect his belongings from the tent; locking the tent; or burning the tent and Suzuki Swift.

460 The conduct that Mr Cross admitted can be explained by his trying to help a friend who had made a terrible mistake. His friendship with Mr Costello was characterised by a friendly uncle/nephew dynamic. They were close friends and Mr Cross was protective of, and loyal to, Mr Costello. He bought a T-shirt for him and broke into a house to retrieve Mr Costello's clothes. Mr Cross' sense of protectiveness is evident in Mr Cross: placing Mr Costello in a car not linked to the Showgrounds; selling the gun and the Suzuki Swift; offering that Mr Costello 'put the blame on him' to calm his anxiety; and talking Mr Costello down from the brink of suicide.

461 After Mr Cross discovered that Mr Costello had left on the train, he was confronted with the reality of his own conduct - he had provided a loaded gun used to kill Ms Pante, and disposed of the car and gun implicated in the shooting. His text messages and decision to flee Victoria should be viewed in light of his accessorial involvement, as well as his other admitted criminality, including possessing and buying and selling weapons, extensive drug dealing and use, and possessing stolen cars. In particular, the defence submits that I cannot interpret the message about '10yrs min' as reflecting Mr Cross' concern about a murder sentence, as the sentence is clearly too short for that type of offending.

462 The defence submits that, were Mr Cross guilty of murder, he would have: fled Victoria sooner; avoided being captured on CCTV in plain sight; used a false name when he booked into the Discovery Park in Braybrook; and turned his mobile phone off immediately after the shooting.

463 Mr Cross only fled Victoria when he received the 'shocked' emoji notification from Ms Pante's Facebook account. Mr Cross' possession of a loaded gun in New South Wales when apprehended by police reflects his suicidality at the time. Critically, it was not the same gun used to shoot Ms Pante. LSC Griffiths could not conclude that the bullet retrieved from Ms Pante's skull was fired from the gun found in his possession. Further, LSC Griffiths agreed that there are numerous makes of weapon available in Australia with the same rifling characteristics as the gun used to kill Ms Pante. Finally, the defence submits that the .22 referenced in the message to Ms Purdie is the gun found in Mr Cross' possession, and not the weapon used to kill Ms Pante.

464 I have found it convenient to divide my analysis of causation into three components: Mr Costello's evidence; Mr Cross' evidence; and Mr Cross' conduct after the shooting.

465 I will begin by considering Mr Costello's evidence. In summary, I accept Mr Costello's direct evidence that Mr Cross shot Ms Pante for the following six reasons:

(a) I reject as a reasonable possibility that Mr Costello returned to the Showgrounds on the afternoon of Monday 3 December;

(b) I am satisfied that Ms Pante's shooting could have occurred during Mr Costello's call with Centrelink;

(c) I am satisfied that Mr Costello's account of the shooting is consistent with Ms Pante's autopsy results;

(d) I do not consider that the limited inconsistencies between Mr Costello's account at trial and his earlier accounts, or his omission of certain collateral details in his earlier accounts, are indicia of dishonesty;

(e) I consider that Mr Costello's evidence has many positive indicia of truthfulness; and

(f) I do not consider that Mr Costello's conduct after the shooting demonstrates a consciousness of guilt.

466 Firstly, I reject as a reasonable possibility that Mr Costello returned to the Showgrounds on the afternoon of Monday 3 December. The relevance of this issue is that it goes directly to Mr Costello's credibility on a critical matter and therefore whether I can accept Mr Costello's direct evidence that Mr Cross shot Ms Pante. My conclusion has three bases:

(a) there are several reasons why Ms Callison could be mistaken about seeing the same man on 2 and 3 December;

(b) it is inherently implausible that Mr Costello returned to the Showgrounds on the afternoon of 3 December; and

(c) I accept Ms Walton's evidence that Mr Costello arrived in Colac on the afternoon of 3 December, and reject the assertion that Mr Costello, Ms Walton and Mr Cashion colluded to protect Mr Costello.

468 Ms Callison gave evidence that a man with dark shoulder length hair who she saw setting up the glamping tent on Sunday 2 December (agreed to be Mr Costello) was at the Showgrounds on 3 December at approximately 5:15pm. I accept that Ms Callison's purported sighting occurred on the Monday afternoon, and that the reference to Sunday afternoon in her police statement is therefore an error. I also consider that Ms Callison is a witness of truth. Ms Callison has at all times endeavoured to assist police in their investigations and was forthright and candid in the witness box. Having said that, I am not persuaded that she saw the same man at the Showgrounds on 2 and 3 December.

469 When Ms Callison made a comment to the man agreed to be Mr Costello on 2 December, she 'didn't stop and talk to him, [she] just walked past and said it looked like hard work'. At the purported sighting on 3 December, the two 'did not converse' and, critically, Ms Callison recalled the man being 'slightly ahead of me' and 'almost at the amenities block door'. In other words, Ms Callison's interaction with the man agreed to be Mr Costello on 2 December was fleeting, and her purported sighting of the same man on 3 December involved no interaction at all and in circumstances where he was ahead of her.

470 Further, it is clear that Ms Callison's focus during the first sighting was on the man's hammering in tent pegs, as immediately afterwards she spoke to Mr Callison about suggesting to the man that he use a drill to assist with the task. Her focus during the second sighting was clearly the large amount of neatly folded clothes in the man's arms, as reflected in her police statement and typed notes. Therefore, on both occasions, Ms Callison's attention was captured by the activities the man was undertaking, as opposed to distinguishing features of his physical appearance. It is perhaps telling that Ms Callison never commented on the man's height, despite Mr Costello being 6 foot 7 inches tall.

471 In addition, the two sightings were separated by approximately 24 hours during which Ms Callison is likely to have interacted with many other people and seen many new faces - at the light show, doctors' surgery, hairdresser, bag shop, Woolworths and the Showgrounds itself (as recorded in her typed notes). In these circumstances, the possibility of being mistaken about the identity of a person momentarily observed the day before is increased.

472 Importantly, these explanations for why Ms Callison might be mistaken about seeing the same man do not impugn the thoroughness of her notetaking or her diligence in cross-referencing bank records, receipts and phone records to create her typed notes. Rather, they look to the objective circumstances in which Ms Callison made her sightings and recognise that the purported matching of an identity based on two fleeting observations might be unreliable.

473 Nevertheless, there is one feature of Ms Callison's typed notes that casts additional doubt on the reliability of her second sighting - that is, the accuracy of the time at which that sighting is recorded. Ms Callison's typed notes record the sighting as occurring after 5:15pm (which Ms Callison agreed could have been anywhere between 5:15pm and 7:30pm), and also links the sighting to Mr Callison's investigation of a power outage. However, Mr Callison's estimate of the time of the relevant power outage given to police was 9:00/9:30pm. While Mr Callison was not as confident as Ms Callison when he gave his evidence, he was the one who actually investigated the power outage and I therefore prefer his evidence on the time of the outage.

474 If the power outage occurred at 9:00/9:30pm, and Ms Callison made her second sighting at that time, then she must be mistaken about the sighting having occurred between 5:15pm and 7:30pm. While this does not call into question the fact of the sighting, it does cast doubt on the precision of her overall recollection including, critically, the identity of the person she saw. It also creates uncertainty about the level of natural light at the time of the second sighting.

475 In summary, many elements of Ms Callison's account - that she 'didn't stop and talk' to the man on 2 December; that her second sighting occurred without interaction when the man was ahead of her; that on both occasions her attention seems to have been captured by the man's activities rather than his physical appearance; that the two sightings were separated by 24 hours during which she was likely interacting with many other people; and that she might be mistaken about the time of the second sighting - collectively raise the distinct possibility that the man Ms Callison saw on the second occasion was not Mr Costello. I note that Ms Callison's evidence about the man 'coming from the tent' on the second occasion was disclosed for the first time at trial, more than three years after the events.

476 I turn now to my second reason for rejecting as a reasonable possibility that Mr Costello returned to the Showgrounds on the afternoon of Monday 3 December. That is, its inherent implausibility.

477 It is not disputed that Mr Costello was dropped off at the North Shore Train Station by Ms Menzies on the morning of 3 December. He had at least two bags containing all of his belongings, and some change from the 50 dollars Mr Cross gave him after he paid 25 dollars for an additional night at the campsite and a new padlock. On Mr Costello's version, he also bought three Gatorades with the remaining change. It is not disputed that Mr Costello's mobile phone was turned off at that time. If I were to accept as a reasonable possibility that Ms Callison saw Mr Costello on 3 December, it would also require me to accept as a reasonable possibility that, rather than travelling to Colac as planned, Mr Costello returned to the scene of Ms Pante's shooting and allowed himself to be seen in plain sight. This is inherently implausible for the following reasons:

(a) it is highly unlikely that Mr Costello could have attained the requisite degree of composure to do so, considering his undisputed and severe distress following Ms Pante's shooting, the chaotic aftermath, his expression of suicidal ideation and the fact that he was coming down from a months-long ice binge;

(b) it is unclear how Mr Costello could have made his way back to the Showgrounds with minimal money and his mobile phone turned off, and in circumstances where he was carrying at least two bags of belongings;

(c) there is no apparent explanation for why Mr Costello would have returned to the Showgrounds at the time Ms Callison is said to have seen him. The tent had already been 'secured' with a new padlock, and Mr Cashion had been told that Mr Costello would be using the tent for another night. The defence submits that Mr Costello's presence at that time implies that he was responsible for the tent fire. However, that would require accepting that Mr Costello left the Showgrounds again and returned later on, or otherwise stayed hiding in a tent with a dead body until the early hours of 4 December. Neither is remotely plausible;

(d) Ms Callison's account includes no indication that the man she saw on 3 December was seeking to avoid being seen. That would seem very unlikely for Mr Costello who, on the defence case, had deliberately provided false details to Mr Steele in order to avoid subsequent detection;

(e) the idea that Mr Costello would be carrying a large pile of neatly folded clothes in the immediate aftermath of Ms Pante's death and only metres from where her body lay, is fanciful; and

(f) for similar reasons to those outlined in paragraph (b), it is unclear how Mr Costello could have made his way to Colac after spending time at the Showgrounds on the afternoon and evening of 3 December.

478 I turn now to my third reason for rejecting as a reasonable possibility that Mr Costello returned to the Showgrounds on the afternoon of Monday 3 December. I accept Ms Walton's evidence that Mr Costello arrived in Colac on the afternoon of 3 December, and reject the assertion that Mr Costello, Ms Walton and Mr Cashion colluded to protect Mr Costello. I will begin by considering Ms Walton's evidence.

479 I reject the defence submission that Ms Walton's lack of precision indicates her dishonesty. The first time Ms Walton was asked by police about the relevant events was in May 2021, almost two and a half years later. At trial, she was firm in recalling the sequence of relevant events and gave cogent evidence about how she recalled their approximate times by reflecting on her usual afternoon and evening routines, including returning from work, and preparing and serving tea. While Ms Walton could not give a precise time for when Mr Costello arrived at her house on 3 December, she was clear and unwavering that it was before she started to cook tea, and that she always has tea ready at approximately 5:30pm on weeknights.

480 I found Ms Walton to be an honest witness. Her volunteering that she had recently reread Mr Costello's police statement was not a 'slip up' by a liar during cross-examination. If Ms Walton were the consummate liar that the defence suggests, it beggars belief that she would volunteer this information at the very end of giving her evidence.

481 Nor is Ms Walton's account implausible in any material respect. When asked about Mr Costello's entering her house through the back door, Ms Walton said that it was not unusual for people to use the back door rather than the front door. There is nothing particularly unusual about a family member using the back door when they arrive home, and there is no evidence to suggest that the front entrance to Ms Walton's house was a more practical or common way of entering. Ms Walton also agreed that it was three to four months since Mr Costello had last been home. She said she did not ask him any questions when he arrived. In my view, there is nothing particularly suspicious or unusual about a 23 year old man going straight to his room after being away for some months. It is neither on its own, or in combination with other evidence, implausible.

482 I also reject the defence submission that Ms Walton's access to Mr Costello's police statement and record of interview, and observing his committal evidence, have contaminated her evidence. Despite her familiarity with Mr Costello's evidence, Ms Walton's account does not fully harmonise with Mr Costello's account. If Ms Walton were relying on her prior knowledge of Mr Costello's evidence to construct a story, it could reasonably be expected that she would have achieved greater consistency with Mr Costello's account.

483 In particular, Ms Walton's evidence about how the topic of the shooting arose on 4 December is, in part, at odds with Mr Costello's evidence. Ms Walton said that Mr Costello volunteered to her that he had witnessed a murder, unprompted. In contrast, Mr Costello said that the discussion was prompted by a television news story that Ms Walton had seen. Ms Walton clearly had the opportunity to adopt Mr Costello's account of how the topic arose, given she heard that account at the committal hearing. However, she did not do so. If Ms Walton were lying, she might also have been expected to harmonise her account with her own phone records, which show that she received a call from Mr Cashion at 4:36pm on 4 December. When the fact of that call was put to her in cross-examination, Ms Walton maintained that she had no memory of speaking with Mr Cashion, or being told by him about a tent fire and body.

484 I also reject the defence submission that Ms Walton had a motive to lie and cover up for her son. Ms Walton expressly denied this proposition and, absent a prior confession by Mr Costello (for which there is no evidence, and which was not put to Ms Walton or Mr Costello in cross-examination), had no reason to suspect that her son had killed Ms Pante. There is nothing in Mr Costello's police statement, record of interview or committal evidence to raise such a concern. While Mr Costello was arrested when he presented to the Geelong Police Station, he was released without charge after being interviewed. Mr Costello was a witness at the committal hearing where another person, Mr Cross, stood charged with Ms Pante's murder. Mr Costello was not accused of shooting Ms Pante at the committal hearing, and there is nothing to suggest that Ms Walton expected this accusation to be made at trial.

485 I turn now to the suggestion that inaccuracies in Mr Cashion's evidence indicate some form of collusion to protect Mr Costello.

486 It is true that Mr Cashion's evidence is inaccurate on a number of issues. He is completely wrong about the time DS Weaver called him, and when he attended the Geelong Police Station to make a statement. However, there is no evidence that Mr Cashion spoke to anyone potentially connected to the campsite or Ms Pante's shooting before he spoke to DS Weaver. The first time Mr Cashion gave evidence specifically about his communications with Mr Costello and DS Weaver was at his s 198B hearing on 11 March 2022. The fact that Mr Cashion cannot now recall the precise times and content of those communications is likely to be a product of the passage of time, rather than Mr Cashion's lying or colluding with Mr Costello.

487 Further, the evidence does not indicate any significant delay between Mr Cashion's speaking to DS Weaver at approximately 12:30pm and attending the Geelong Police Station. While DS Weaver's notation in relation to Mr Cashion's attendance is recorded at 2:20pm, Mr Cashion's final police statement was acknowledged by DS Weaver at 2:34pm, which demonstrates that Mr Cashion must have been in attendance for a significant period of time prior to 2:20pm.

488 Mr Cashion is clearly wrong about calling Ms Walton in front of DS Weaver. However, I do not accept that Mr Cashion deliberately fabricated this account to help Mr Costello. As already noted, it is unsurprising that Mr Cashion's memory of events almost three and a half years ago is poor. Further, it is unlikely that Mr Cashion would deliberately lie about taking a call in front of DS Weaver when that could so easily be disproved by phone records and DS Weaver's own evidence. DS Weaver's notes also suggest that Mr Cashion provided Ms Walton's and Mr Costello's phone numbers to police, which is entirely consistent with his assisting DS Weaver to get in touch with Mr Costello, as opposed to obstructing such contact until Mr Cashion could 'tip off' Mr Costello.

489 There is nothing in the evidence to suggest that Mr Cashion's call to Ms Walton at 4:26pm on 3 December was a 'tip off', and not simply made out of concern for Mr Costello. While it is likely that Mr Cashion was by that time aware that the body in the tent belonged to a female (and was therefore not Mr Costello's body), it would be surprising if this information completely satisfied his concerns about his friend in the circumstances. In addition:

(a) Mr Cashion was not evasive when questioned about the call, which might otherwise be expected if it were in fact a 'tip off' that had been successfully hidden for over three years;

(b) Mr Costello's volunteering the fact of the call for the first time at trial (thereby prompting a s 198B examination of Mr Cashion) is completely at odds with the call being the catalyst for his fabricating an elaborate exculpatory story, or his confessing that he killed Ms Pante on the call (noting that Mr Cashion denied that Mr Costello confessed to him, and it was never put to Mr Costello that he did so);

(c) Ms Walton's failure to mention the call in her police statement or s 198B hearing, only for Mr Costello to volunteer that information at trial, is inconsistent with their collusion; and

(d) Mr Costello's evidence that he did not speak to Mr Cashion when Mr Cashion called Ms Walton, contrary to Mr Cashion's recollection, is inconsistent with their collusion.

490 In summary, I reject as a reasonable possibility that Mr Costello returned to the Showgrounds on the afternoon of the shooting on three bases: there are several reasons why Ms Callison might be mistaken about the identity of the man she saw on 3 December; it is inherently implausible; and I accept Ms Walton's evidence that Mr Costello was in Colac at that time. I also reject that Mr Cashion, Ms Walton and Mr Costello colluded to conceal the true events of 3 and 4 December. I am satisfied that Mr Costello arrived at Ms Walton's house between 3:00pm and 5:00pm on 3 December and that he remained there until he was driven to the Geelong Police Station on 4 December.

Ms Pante's shooting could have occurred during the Centrelink call

491 Secondly, I am satisfied that Ms Pante's shooting could have occurred during Mr Costello's call with Centrelink. The relevance of this issue is that it goes directly to Mr Costello's credibility on a critical matter and therefore whether I can accept Mr Costello's direct evidence that Mr Cross shot Ms Pante. My conclusion has four bases:

(a) I am satisfied that all of the events described by Mr Costello during the Centrelink call could have occurred in the space of 4 minutes and 59 seconds (being the agreed length of the call);

(b) I am satisfied that Ms Pante's shooting could have occurred between 8:43am and 8:48am (being the agreed start and end times of the call);

(c) I do not consider that the Centrelink officer's failure to recall anything unusual about the call necessarily means that a gun was not fired in the background during the call; and

(d) I do not regard as implausible that Mr Costello stayed on the phone after the shooting and managed to secure his Centrelink benefits.

493 In order to accept Mr Costello's account of Ms Pante's shooting during his call with Centrelink, I must be satisfied that the following events could all occur in the space of 4 minutes and 59 seconds: Mr Costello answers the call and provides his details; Mr Cross and Ms Pante enter the tent and begin arguing; Mr Costello asks them to quieten down three or four times; Mr Cross shoots Ms Pante; Mr Costello paces inside the tent; Mr Cross, Mr Costello and Ms Menzies leave the tent; Mr Cross and Mr Costello converse briefly; and the three enter the Suzuki Swift and drive off before Mr Costello finally ends the call. I also need to consider the possibility that during her argument with Mr Cross, Ms Pante left the tent and entered Mr Hollonds' car before immediately returning to the tent (as potentially suggested by Mr Fry's and Mr Hollonds' evidence).

494 In short, I am satisfied that those events could have occurred in the required time frame. When one consciously and purposefully takes note of an interval of five minutes, it is clear that it is not an insignificant period of time. None of the individual events described by Mr Costello during the call are necessarily long events that must have taken any more than 30 seconds to one minute. Even if Ms Pante briefly returned to Mr Hollonds' car during her argument with Mr Cross, that itself could have been completed in under a minute given the proximity of the car to the tent (on Mr Hollonds' account the nose of the car was level with the tent when parked at its second position) and the brevity of her time in the car (on both Mr Hollonds' account and Mr Fry's account, she left the car almost immediately).

495 I reject the defence submission that the appropriate way to analyse Mr Costello's evidence is to aggregate his 'estimates' of the duration of individual events and compare that aggregate to the known duration of the call. When his evidence is viewed as a whole, it is abundantly clear that Mr Costello used language such as 'a couple of minutes' or 'five minutes' loosely to convey the notion of a short period of time. When asked about what he was 'working off' to produce those estimates, Mr Costello said, 'Um, just guessing, really. I wasn't timing anything, so I don't really know'.

496 It is also clear that Mr Costello would not be in a position to provide precise time estimates, even if that were his intention. Mr Costello readily admitted that he was not paying attention to the events and conversations taking place before the shooting, and his panic and distress after the shooting would likewise render him incapable of such precision. In these circumstances, a greater degree of purported accuracy would suggest a fabrication. Mr Costello's rejecting the opportunity to 'refine' his account in light of evidence about the time and duration of the call is, in my view, demonstrative of honesty:

Counsel: So, I can tell you that the records we have show that the Centrelink call commenced at 8.43am, so quarter to 9 almost?

Mr Costello: Righto.

Counsel: And lasted just one second shy of five minutes?

Mr Costello: Righto.

Counsel: Is there anything you'd like to say about that in terms of that timeframe?

Mr Costello: No.

Counsel: Does that change anything for you in terms of your account of how the morning went?

Mr Costello: No.

497 It is also important to acknowledge that Mr Costello's account of the order of events has been remarkably consistent across his police interview, police statement, at the committal hearing and finally at trial. In my view, this is consistent with honesty. I discuss other indicia of Mr Costello's truthfulness later in these reasons.

498 I turn now to whether Ms Pante's shooting could have occurred between 8:43am and 8:48am. In my view, there is nothing in the evidence to suggest that the shooting must have (or even probably) occurred outside this timeframe.

499 Mr Costello's account of his movements prior to the Centrelink call are all plausible and consistent with the shooting occurring between 8:43am and 8:48am. He said that he woke up at or about 7:30am, which is consistent with his text messages to Mr Hollonds at 7:31am and to Ms Pante at 7:48am. Mr Cross' arrival at the tent a short time later is plausible and not otherwise contradicted. Mr Costello's showering sometime between 8:00am and 8:15am is consistent with Mr Callison's evidence of speaking to a man from Colac at the shower block at that time. Mr Costello's seeing Mr Hollonds' car on his return from the shower block is broadly consistent with the other evidence. Importantly, Mr Costello's messages to 'Millzy' (the last of which he sent at 8:24am) seem relaxed and supportive, and therefore suggest that the shooting had not yet occurred.

500 However, it must be acknowledged that the evidence does not illuminate what Mr Costello was doing between sending the last message to Millzy at 8:24am and receiving the Centrelink call at 8:43am. This is not to say that Mr Costello 'cannot account' for his movements during this time, but simply that the evidence (other than Mr Costello's evidence) does not exclude the possibility of the shooting occurring before the Centrelink call. It might also be argued that Mr Costello's inability to recall any details of the other conversations occurring inside the tent sits uncomfortably with this 19 minutes of otherwise 'idle' time.

501 In my view, these issues do not impugn Mr Costello's credibility. Importantly, they do not contradict Mr Costello's version of events which, for the many reasons outlined elsewhere, I readily accept. It is not difficult to imagine things that Mr Costello might have been doing during those 19 minutes that did not involve engaging with other conversations occurring inside the tent. It is likely that, by 8:30am, Mr Costello was expecting to receive a call from Centrelink at any moment and that his focus was on ensuring that he did not miss that call. Mr Costello repeatedly referenced the importance of the call in his evidence, it being the last step for him to secure Newstart Allowance. He had no accommodation or money at the time and was relying on friends for help. It is perfectly plausible that Mr Costello was focused on receiving that call, and did not meaningfully engage with other persons inside the tent, in the minutes before 8:43am.

502 I do not consider that Mr Costello's evidence, and in particular his account of Ms Pante's shooting, is in anyway undermined or weakened by the absence of a minute by minute account of events prior to and after the shooting. To the contrary, Mr Costello had no reason to be focusing on what was happening around him prior to the shooting as he was solely focused on finalising his application for Newstart Allowance. Equally, in the chaotic aftermath following Ms Pante's shooting, Mr Costello would not have been concentrating on timelines.

503 Before turning to my next basis for concluding that Ms Pante's shooting could have occurred during Mr Costello's call with Centrelink, it is necessary to make some brief comments about the movement of people into and out of the tent on the morning of 3 December. Mr Costello, Mr Cross, Mr Hollonds and Mr Fry each gave evidence on this topic; however, no two accounts were entirely consistent. In my view, this is unsurprising. It is clear that interactions occurred between various people both inside and outside the tent over a relatively substantial period of time. Stepping through a tent flap is a less distinctive event than, for example, opening and closing a door, or entering or exiting a building, and therefore less likely to be recalled with precision. Further, each witness' account indicates a degree of fluidity in relation to the location of conversations at the campsite on the morning of 3 December, which would also make precise recollections difficult.

504 Accordingly, I do not generally regard discrepancies in the timing and number of attendances in the tent as undermining the credibility of any one account. In particular, I am not troubled by Mr Costello's failure to recall Ms Pante's leaving the tent without Mr Cross (as suggested by Mr Fry's and Mr Hollonds' accounts). In my view, the argument between Mr Cross and Ms Pante might have been punctuated by Ms Pante's briefly returning to Mr Hollonds' car but without Mr Costello noticing that fact (given his account that he was distracted on his call with Centrelink). Equally, the entire argument might have occurred only once Ms Pante returned from the car, and Mr Costello's telling the two to quieten down three to four times occurred during the following minute or so before Ms Pante was shot.

505 The one exception to this is Mr Fry's evidence that he never entered the tent, which directly conflicts with Mr Costello's and Mr Cross' accounts. While I consider it more likely that Mr Fry did enter the tent at some stage, it is unnecessary for me to reach a concluded view on this point: as Mr Costello's and Mr Cross' accounts both place Mr Fry inside the tent at some stage, that fact cannot be used to distinguish the veracity of their respective accounts. Mr Cross' account of what Mr Fry said inside the tent is, of course, a separate question, which I examine later at paragraphs 546 to 549 in my consideration of Mr Cross' evidence.

506 I turn now to the Centrelink officer's failure to recall anything unusual about the call with Mr Costello.

507 Firstly, I reject the defence's characterisation of Mr Costello's evidence in relation to the gunshot - specifically, that the sound of the gunshot was so loud, it left his ears ringing. In his police interview, Mr Costello specifically said 'it wasn't really that loud', and that the ringing in his ears was more to do with the 'whole scenario' of having witnessed Ms Pante's shooting. At trial, he reiterated that the phrase was used to describe his state of mind.

508 Two comments made by Mr Costello to police about the Centrelink call are particularly instructive: first, that, 'It wasn't much of a noise 'cause the bloke on the phone to me didn't say anything about it'; and second that, 'If you want to listen to ... the recording of the Centrelink call ... you will hear the gunshot'. The first comment is direct evidence that the Centrelink operator did not react to the sound, which, if true, alleviates the need to speculate about whether someone 'would have' heard the gunshot or not. Of course, that comment would be entirely self-serving if Mr Costello were the shooter; however, critically, the second comment offers police a way of objectively scrutinising Mr Costello's account. It thus serves to increase the likelihood of the first comment being true. If Mr Costello were lying, it seems unlikely that he would give an account which provides such a narrow window in which the shooting could have occurred, and that could easily be disproved by external objective evidence that he volunteered to police.

509 I also note that there are many unexplored variables which may have affected the Centrelink officer's ability to hear the gunshot, such as the quality of the phone line, the level of attention paid by the officer, and what other tasks the officer was engaging in at the time (such as recording information on a computer). Even if the officer did hear something unusual, this might have been forgotten when, three days (and many calls) later, they were asked to recall 'anything unusual' about the specific call without context. In my view, the Centrelink officer's evidence does not advance the matter one way or another.

510 Further, although Mr Hollonds and Mr Fry heard the gunshot while sitting in the car outside the tent (potentially with the windows completely up), there is no evidence that anyone else at the Showgrounds heard the gunshot. If the gunshot was particularly loud, at least one person in the vicinity of the tent might have been expected to report it, or mention the noise when questioned by police.

511 Finally, I turn to the plausibility of Mr Costello's remaining on the Centrelink call after Ms Pante's shooting.

512 In my view, the defence significantly mischaracterises Mr Costello's evidence by implying that he calmly and determinedly stayed on the phone to secure his benefits. There is nothing in Mr Costello's evidence to suggest that he was meaningfully engaging with the Centrelink officer after the shooting, which might otherwise raise doubts about the credibility of his account. Mr Costello said he wasn't listening to the officer's questions, that he barely had the phone to his ear, and was just saying 'Yep, yep, no worries' to ensure the Centrelink officer knew he was there. Mr Costello's unchallenged evidence is that the objective of the call was to finalise his application for Newstart Allowance, as opposed to assessing his eligibility. This is consistent with the relative brevity of the call, and helps explain why Mr Costello's indiscriminate confirmatory statements were enough to secure his benefits. While remaining on the Centrelink call after the shooting was, as the prosecution submits, not heroic, it is not inconsistent with a human response to a traumatic event.

513 In summary, I am satisfied that Ms Pante's shooting could have occurred during the Centrelink call on four bases: the relevant events in Mr Costello's account could have occurred during the agreed length of the call; nothing in the evidence indicates that the shooting could not have occurred between 8:43am and 8:48am; the Centrelink officer's failure to recall anything unusual can reasonably be explained; and I do not regard as implausible that Mr Costello stayed on the phone after Ms Pante's shooting and managed to secure his Centrelink benefits.

Mr Costello's account is consistent with Ms Pante's autopsy results

514 Thirdly, I am satisfied that Mr Costello's account of the shooting is consistent with Ms Pante's autopsy results.

515 A major finding of the autopsy is that the bullet which killed Ms Pante travelled downwards at an angle of approximately 45 degrees to the horizontal plane of Ms Pante's head, and an angle of approximately 30 degrees to the vertical midline plane of Ms Pante's head (moving from the right to left side of her head), when she was shot. Critically, this says nothing about the angle of the gun relative to the ground, or the angle of Ms Pante's head relative to the ground at the time of the shooting. The bullet tract could equally be explained by:

(a) the horizontal plane of Ms Pante's head being parallel to the ground while the bullet travelled downwards at an angle of approximately 45 degrees to the ground;

(b) Ms Pante flexing her head downwards at approximately 45 degrees to the ground while the bullet travelled horizontally; or

(c) any combination of head position and bullet trajectory within these two extremes.

516 Mr Costello's demonstrations of the shooting suggest that Mr Cross' arm was extended and approximately parallel with the ground when he shot Ms Pante. I accept that, if Mr Cross' arm was exactly parallel with the ground and the barrel of the gun was exactly parallel with Mr Cross' arm at the time of the shooting, then Ms Pante's head would need to have been flexed downwards at approximately 45 degrees to the ground at the time of the shooting to produce the observed bullet tract through her brain. The defence argues that this is directly contradicted by Mr Costello's agreement with the proposition that Ms Pante 'was looking at [Mr] Cross straight ahead when the gun was fired'.

517 In my view, Mr Costello's evidence is not contradicted by the autopsy results as they relate to the bullet tract through Ms Pante's brain. Relevantly:

(a) I do not consider that Mr Costello's agreement with the proposition that Ms Pante 'was looking at [Mr] Cross straight ahead when the gun was fired' constitutes his agreement with the far more specific proposition that the horizontal plane of her head was parallel to the ground at the time of the shooting. Rather, I consider that Mr Costello was agreeing that Mr Cross was directly in front of Ms Pante at the time of the shooting, and that she was looking directly at Mr Cross. The proposition seized on by the defence was put to Mr Costello immediately after several more general propositions in quick succession: that Ms Pante and Mr Cross were 'facing one another'; that they were 'standing and facing one another'; and finally, that Ms Pante was 'standing upright and facing [Mr Cross] when she was shot by him'. The line of questioning did not explain the subtle differences between each item of puttage. I do not accept that Mr Costello's responses to the questions establish a precise head position, and instead consider that his responses allow for the possibility of a range of head positions;

(b) Mr Costello's evidence is that the shooting was unexpected and 'instantaneous', and that he saw it in his peripheral vision, which necessarily limits the accuracy of his observations about Ms Pante's head position;

(c) Mr Costello's evidence is that Ms Pante was moving around 'erratically' at the time of her shooting. It is unlikely that her head would have been fixed in a completely level position while her body was moving in this manner; and

(d) Mr Costello's agreement about a 'geometrically precise angle' related to the angle of Mr Cross' arm (which, by virtue of the length of an outstretched arm is relatively straightforward to estimate) and not the position of the horizontal plane of Ms Pante's head (which is inherently more difficult to estimate).

518 As a result, I consider that Mr Costello's evidence is consistent with Ms Pante having a relatively broad range of head positions at the time of the shooting, and reject the submission that Mr Costello committed to her head being completely level and parallel to the ground at the time of the shooting.

519 Further, the defence's argument makes certain assumptions about the gun position relative to Mr Cross' arm which are difficult to extract from Mr Costello's evidence. In particular, it assumes that Mr Costello's evidence is that the barrel of the gun was exactly parallel with Mr Cross' arm at the time of the shooting (in addition to his arm being outstretched). Mr Costello was not specifically asked about the position of the gun relative to the ground. While I accept that Mr Costello's physical demonstrations do not suggest a material difference in the orientation of Mr Cross' arm and the gun, they do not exclude the possibility of some deviation of the gun barrel due to wrist flexion. It is simply not possible to discern that degree of precision from Mr Costello's evidence in circumstances where he observed the 'instantaneous' shooting only in his peripheral vision, and while distracted by his call with Centrelink.

520 In my view, the angles permitted by Mr Costello's evidence in respect of Ms Pante's head position and Mr Cross' arm position, and the absence of precise evidence on Mr Cross' wrist position, allow for the possibility of a combination of angles that could have produced the bullet tract through Ms Pante's brain, being approximately 45 degrees to the horizontal plane (noting that Dr Lynch said this could be as low as 40 degrees) and 30 degrees to the vertical plane.

521 Another finding of Dr Lynch's autopsy is that Ms Pante was not shot at an 'intermediate' range (an inch to several feet away), and that he preferred a 'contact or near contact' range (where the firearm is against or very close to the skin). In my view, Mr Costello's description of a 'point blank' shooting is entirely consistent with this conclusion. While a distance of 30 centimetres would be within the 'intermediate' range, Mr Costello described this as an outer limit of his estimate.

522 In addition, Dr Lynch said that Ms Pante could have fallen in any number of directions after she was shot, which is not inconsistent with Mr Costello's evidence that she 'just sort of dropped backwards'. Mr Costello's evidence that Ms Pante 'dropped like there was nothing holding her up' is also consistent with Dr Lynch's evidence that the injury to her brainstem would have been instantly incapacitating.

Mr Costello's inconsistencies and omissions were not dishonest

523 Fourthly, I do not consider that the limited inconsistencies between Mr Costello's account at trial and his earlier accounts, or his omission of certain collateral details in his earlier accounts, are indicia of dishonesty. Specifically:

(a) I do not consider that Mr Costello's concession at trial that he was mistaken at the committal hearing when he said that he left his mobile phone on the bed immediately after the shooting constitutes a material change in his account. Relevantly, Mr Costello did not say anything in his police interview about putting the mobile phone on the bed (when the events were fresh in his mind) and his comment about putting the mobile phone on the bed at the committal hearing was in the context of explaining that he did not meaningfully engage with the Centrelink officer after the shooting despite remaining on the call (which continues to be his evidence);

(b) I do not consider that Mr Costello's concession at trial that he was mistaken at the committal hearing when he said that he had never asked Mr Cross for a firearm constitutes a material change in his account. Relevantly, Mr Costello volunteered that he was mistaken and offered as a plausible explanation that other questions put in cross-examination 'jogged me memory';

(c) I do not consider that Mr Costello's concession that he was potentially mistaken about Mr Cashion giving him a lift to the apartment in Malop Street on 2 December constitutes a material change in his account. How Mr Costello got to the apartment (whether by getting a lift with Mr Cashion or Mr Cross, or walking) is a peripheral detail that has no real bearing on the issues in dispute;

(d) I do not consider that Mr Costello's failure, prior to trial, to disclose that he informed Mr Cross about Mr Cashion's key to the original padlock constitutes a material omission. Critically, Mr Cross did not dispute being so informed (although he gave a different account of the context);

(e) while Mr Costello initially said to police that he had never seen Mr Cross discharge the gun prior to Ms Pante's shooting, he immediately corrected that statement without contrary evidence being put to him by police;

(f) Mr Costello's denial of accusing Ms Pante of infidelity is not necessarily contradicted by his text message to her saying 'how am I a cunt, I'm not the one who fucked someone else?' Importantly, this was a defensive message by Mr Costello (responding to Ms Pante's message that he was a 'cunt') and not proactively accusatory. Furthermore, the broader set of messages exchanged between the two indicates that the topic of infidelity was not otherwise canvassed, and that any other messages of an accusatory nature invariably originated from Ms Pante and were directed at Mr Costello. In contrast, Mr Costello's messages are generally respectful and supportive; and

(g) I reject the submission that Mr Costello deliberately omitted his saying 'I'm going back there to shoot myself' from his police statement. That phrase was volunteered by Mr Costello in his police interview, and it was DSC Asciak who led the questioning that produced Mr Costello's statement.

Mr Costello's evidence has positive indicia of truthfulness

524 Fifthly, I consider that Mr Costello's evidence has many positive indicia of truthfulness, including that:

(a) Mr Costello went to the police at an early opportunity and gave a full account of his version of events before he was aware of any other potentially contradictory evidence;

(b) the account given by Mr Costello to the police was largely unchanged at the committal hearing, and subsequently at trial under three days of vigorous cross-examination;

(c) Mr Costello's sketches made for police were detailed and have not been demonstrated to be materially inaccurate;

(d) Mr Costello answered all of the questions asked by police after being cautioned and without a lawyer present;

(e) Mr Costello proactively suggested to police that they should obtain a recording of the Centrelink call to confirm the gunshot and preceding argument between Ms Pante and Mr Cross, which would be very strange if he knew that the recording would disprove those events;

(f) at trial, Mr Costello suggested that CCTV footage at the Colac Train Station would capture his purchasing a ticket on 3 December 2018, which, again, would be strange if he knew the footage would disprove that assertion (however, I note that Mr Costello may have been aware that CCTV footage could no longer be obtained more than three years after the relevant events);

(g) Mr Costello did not embellish his version of events when given the opportunity to do so. Notably, he was unable to clearly articulate why the Centrelink recording would have assisted his case, admitted that he needed to be 'somewhat persuaded' by Ms Walton to speak to the police, and did not elaborate on text messages he had forgotten about but which were potentially exculpatory;

(h) while Mr Costello accepted countless propositions put to him in cross-examination with single word answers, he pushed back firmly on a limited number of discrete propositions;

(i) Mr Costello was frank and open about his history of drug taking, his turbulent relationship with Ms Pante, the assistance he received from Mr Cross leading up to the shooting, and many aspects of his conduct after the shooting which did not cast him in a favourable light;

(j) Mr Costello accepted when he had been mistaken, and/or corrected his errors promptly; and

(k) Mr Costello's errors, inconsistencies and omissions as outlined above lend an authenticity to his account. In my view, they are more indicative of the frailties of human memory than a fabrication.

525 While any one of these features of Mr Costello's evidence is not in isolation conclusive of his honesty, collectively they strongly suggest that his account was given truthfully.

Mr Costello did not demonstrate a consciousness of guilt

526 Sixthly, I do not consider that Mr Costello's conduct after Ms Pante's shooting demonstrates a consciousness of guilt. Specifically:

(a) while Mr Costello did not offer Ms Menzies' name to police, he identified her in a photograph, which demonstrates that he was not attempting to hide her identity;

(b) while Mr Costello did not alert police to Ms Pante's shooting at the earliest opportunity, this was in the context of having witnessed a highly distressing event while coming down from months of continuous drug taking. In these circumstances, his presentation to police on the day after the shooting may fairly be regarded as relatively prompt;

(c) Mr Costello's comment that 'I'm going back to the tent to shoot myself' is satisfactorily explained by his witnessing the death of an intimate friend, and does not necessarily express personal responsibility for her death;

(d) I accept Mr Costello's evidence that he did not deliberately give false information to Mr Steele. If that were his intention, he might have been expected to give details that were completely different to his own, rather than close approximates. Further, a mobile phone number omitting one digit is immediately identifiable as incorrect. I note that Mr Costello was candid in volunteering that he failed to correct Mr Steele despite noticing his error, and consider that this is entirely consistent with Mr Costello's open admission that he was involved in the very early stages of the attempted coverup of Ms Pante's shooting;

(e) while Mr Costello volunteered to police that he purchased the padlock to the tent and removed his belongings from the crime scene, and agreed that his message to Mr Cashion that 'Crossey bought us another night man' was intended to discourage Mr Cashion from attending the Showgrounds, none of this is inconsistent with Mr Costello's open admission that he was involved in the very early stages of the attempted coverup of Ms Pante's shooting. I do not consider that use of the word 'us' was a calculated decision by Mr Costello to imply that Ms Pante was still alive, however he clearly intended the overall message to convey the impression that nothing untoward had happened;

(f) Mr Costello's turning his phone off and changing into the Hyundai i30 were both done at Mr Cross' instruction and at a time when Mr Cross was with Mr Costello;

(g) Mr Costello's giving a Gatorade to Ms Menzies is explicable by a myriad of motivations other than 'keeping her onside' as a witness to his wrongdoing;

(h) Mr Costello's admission that he may have been a 'prime suspect' before going to police is entirely uncontroversial given he was present at Ms Pante's death and was staying with her in the tent where her body was found; and

(i) it was entirely appropriate for Mr Costello, as a witness to a potential murder, to speak to a lawyer on his way to the Geelong Police Station. In any case, this was done at his grandfather's suggestion (and not his own initiative), and he did not have a lawyer present at the time of his interview.

528 As outlined at paragraphs 29 to 32, I have had regard to the principles relating to an accused person giving evidence.

529 I note that on both Mr Cross' and Mr Costello's accounts, Mr Cross had no apparent motive to kill Ms Pante. No acrimony between Mr Cross and Ms Pante is evident in their Facebook messages. Equally, there is no evidence to suggest there was any acrimony between Mr Cross and Mr Costello.

530 Mr Cross was candid about his use and sale of illicit drugs and his involvement in criminal activities such as the possession of firearms and the possession and sale of stolen vehicles.

531 Mr Cross had a very clear recollection of details and events. Mr Cross did not suffer lapses in his memory that might cause me to doubt the reliability of his overall account. However, critically, this case does not turn on Mr Cross' reliability. Rather, the case involves two competing and mutually exclusive eye-witness accounts of Ms Pante's shooting which can only be explained by the deliberate dishonesty of one eye-witness. If I reject Mr Cross' evidence about Ms Pante's shooting, it must be on the basis that he has lied, and not because he is mistaken about who shot Ms Pante.

532 In summary, I consider that Mr Cross is not a witness of credit. I therefore reject his direct evidence that Mr Costello shot Ms Pante for three reasons:

(a) many aspects of Mr Cross' account are inherently implausible;

(b) many aspects of Mr Cross' account are difficult to reconcile with other aspects; and

(c) the precision and certainty of Mr Cross' account suggest a dishonest fabrication.

533 While there are many aspects of Mr Cross' account that may well be true, the only reasonable explanation for the implausibilities, reconciliation difficulties and precise recollections, when considered in aggregate, is that Mr Cross has moulded a version of events to meet the case against him. His account neatly attributes multiple motives to Mr Costello, accounts for the presence of the gun in the tent, and justifies and explains his conduct after the shooting. However, in doing so, it posits such an unlikely combination of events and circumstances as to render it unbelievable.

534 In short, Mr Cross' account does not advance a rational or reasonable hypothesis consistent with his innocence. As a result of his clear dishonesty on numerous important points, I reject his direct evidence on the critical issue in dispute - the identity of Ms Pante's shooter.

Many aspects of Mr Cross' account are inherently implausible

535 Central aspects of Mr Cross' account are inherently implausible. The cumulative effect of these implausibilities is that I do not believe that all of these aspects could have occurred as described, which in turn casts serious doubt on the truthfulness of Mr Cross' account that Mr Costello shot Ms Pante.

536 Firstly, it is implausible that the phrase 'put the blame on me' or 'put it all on me' was intended by Mr Cross as a reference to his moral culpability for leaving a loaded gun in Mr Costello's presence (as opposed to his direct culpability for shooting Ms Pante), and that the intended effect of those words was to reassure Mr Costello that Mr Cross would not go the police while the two were separated. I find Mr Cross' explanation of both the intended meaning of the words, and their intended effect on Mr Costello, to be implausible.

537 The interpretation offered by Mr Cross (confining 'blame' to moral, and not literal, culpability) is a clear departure from the natural meaning of the phrase, and yet something which Mr Cross apparently failed to clarify with Mr Costello. Nor does it appear that Mr Cross made any attempt to clarify with Mr Costello that his offer was only a 'temporary' license for Mr Costello to go to the police in the event Mr Cross did not return. Mr Cross' failure to make these clarifications risked Mr Costello doing exactly what the words suggest - telling police that Mr Cross killed Ms Pante. The suggestion that Mr Cross' intention was to ease Mr Costello's anxiety about their separation is significantly undermined by Mr Costello departing on a train at his earliest opportunity. In my view, the only sensible interpretation of the phrase is that Mr Cross gave permission for Mr Costello to tell the police that Mr Cross shot Ms Pante.

538 Secondly, it is implausible that Mr Cross' message to Mr Drew that, 'when they get me I'm doing 10yrs min' reflected Mr Cross' concern about the cumulative gravity of his admitted offending (which obviously excludes Ms Pante's homicide), and that he risked being convicted for a home invasion in which the Hyundai i30 was stolen. It is simply fanciful that Mr Cross believed the Hyundai i30 had been obtained in a home invasion. It is factually incorrect (the car was stolen from a beach carpark), and entirely implausible that the person who stole the vehicle, or any subsequent seller, would make up that fact and thereby devalue the vehicle. Once this is accepted, Mr Cross' volunteering in the witness box that 'you get seven years for home invasion' has only one explanation - that he fabricated the home invasion to explain away his message about '10yrs min'. Another implication of Mr Cross' explanation - that, because 'it's not [his] practice to talk to police', he would refrain from denying involvement in a home invasion that he did not commit - is similarly unbelievable.

539 However, even if one accepts that Mr Cross honestly believed the Hyundai i30 was obtained in a home invasion (and that he would not deny his involvement if apprehended), his explanation of '10yrs min' still strains credulity. Relevantly, the word 'min' indicates that Mr Cross feared a sentence greater than 10 years. Therefore, it would require his forming a genuine concern about receiving what he considered to be the maximum sentence for the home invasion, together with at least three years, and thus a very substantial sentence, for drug, firearm and accessorial offending, the evidence of which, on his own account, he had successfully disposed. This fact clearly sits in tension with Mr Cross' apparent belief in the effectiveness of disposing of evidence to avoid apprehension - when it was put to him that a gun sold but still in circulation might still be linked to former crimes, Mr Cross said 'if it's just gone, it's gone'.

540 The plausibility of Mr Cross' explanation is also undermined by the clear sense of inevitability conveyed by the message. The words 'when they get me' and 'I'm doing' are suggestive of a man resigned to the fact of his apprehension and conviction. There is nothing in the evidence to indicate that Mr Cross held this attitude before Ms Pante's shooting, and yet the majority of the offending he references to justify his '10yrs min' estimate also occurred before her shooting. The certainty in his message suggests that something material had changed, and that his conduct had reached a new level of seriousness which all but guaranteed a minimum 10 year prison term.

541 For the same reasons, it is implausible that the 'situation' in Mr Cross' message to Mr Drew that he 'wasn't going to go anywhere without them knowing the situation' is the home invasion allegedly associated with the Hyundai i30.

542 Thirdly, it is implausible that the phrase 'survived the jacks' in Mr Cross' messages to Mr Drew referred to the police high beaming Mr Cross during the early hours of 3 December. Those messages were sent more than 36 hours after the alleged high beaming, during which time Mr Cross had, even on his own account, witnessed Ms Pante's shooting and disposed of the Hyundai i30 involved in the high beaming. It is utterly implausible that his 'survival' from the high beaming would continue to be at the front of his mind, having witnessed a homicide in the intervening period and sold the subject vehicle.

543 Fourthly, it is implausible that the catalyst for Mr Cross' departure to New South Wales was receipt of a 'shocked' emoji from Ms Pante's Facebook account. According to Mr Cross, he did not make the decision to flee until he 'got that notification and that's really what - you know, like, maybe just yeah, just panic and leave'. This explanation is simply unbelievable. It is abundantly clear that, by the time he allegedly received the notification, Mr Cross was actively avoiding police detection and well advanced in his preparations to flee the jurisdiction. This is demonstrated by Mr Cross: disposing of the Suzuki Swift and the gun (which, on his account, he sold); leaving the shotgun at Ms Menzies' house; staying away from his usual residence at Ms Menzies' house; sleeping in his car at a lookout spot in Lara, a regional town outside of Geelong, on the night of 3 December; withdrawing all his money from his bank account in Bacchus Marsh; staying away from Geelong at the Discovery Park in Braybrook on the night of 4 December; and selling the Hyundai i30, his only remaining independent means of travel.

544 Further, Mr Cross' stated belief about the source of the 'shocked' emoji is itself implausible. I have no doubt that someone might feel unnerved by receiving a notification from a deceased person's Facebook account. But Mr Cross said that he panicked because he was 'worried that they were coming after me', and he 'assumed that the police had found [Ms Pante's] phone'. To the extent Mr Cross claims that he thought the police had accessed Ms Pante's mobile phone and sent him a 'shocked' emoji, and that belief is was what prompted Mr Cross to leave Victoria, the proposition is fanciful.

545 Finally, there are a number of other features of Mr Cross' account which are inherently implausible, including that:

(a) Mr Costello's relationship with Mr Cross was unaffected by Mr Costello brandishing a gun at Mr Cross and Ms Pante at the Kardinia Motel in circumstances where it was unclear if Mr Costello knew that the gun was unloaded. The evidence suggests that Ms Pante's relationship with Mr Costello was similarly unaffected;

(b) on the morning of 3 December, Ms Pante offered to perform oral sex on Mr Cross for Mr Costello's exclusive benefit, and did not attempt to hide her offer despite knowing it would upset Mr Costello;

(c) Mr Costello had the presence of mind to conduct a five minute call with Centrelink only 10 to 15 minutes after accidentally shooting Ms Pante, he provided his 'full name' and 'personal detail[s]' during that call, and Mr Cross did not intervene to stop the call. This is despite his admitted concern about Mr Costello's mobile phone being tracked;

(d) Mr Costello suggested on two occasions that they pack into a Suzuki Swift, in broad daylight, a 5 x 5 metre glamping tent including, queen-sized mattress, fridge, bedside tables, floor mats and linen and Ms Pante's body;

(e) the reason Mr Cross asked Mr Sell to book accommodation on his behalf was to avoid payment of a deposit in circumstances where Mr Cross had at least 600 dollars and the deposit would ultimately be returned; and

(f) the reason Mr Cross started using a mobile phone that could not be linked to his identity on the night of 3 December was that his other mobile phone was flat. I consider Mr Cross' use of different mobile phones further in my assessment of his allegedly incriminating conduct at paragraphs 565 and 566.

Many aspects of Mr Cross' account are difficult to reconcile

546 In addition to the implausibility of significant aspects of Mr Cross' evidence, there are many aspects which are difficult to reconcile with one another. While I accept that isolated reconciliation problems are not necessarily indicative of a witness' poor credit (life often proceeds in an apparently anomalous way), it is difficult to accept as truthful an account which is replete with such issues.

547 Importantly, it is not necessary for me to determine which of any two apparently irreconcilable aspects of Mr Cross' story is true, or even more likely. It is sufficient that I have identified a significant number of these problems which, in aggregate, cast serious doubt on Mr Cross' credibility, including on the critical question of whether he saw Mr Costello shoot Ms Pante.

548 In my view, the following aspects of Mr Cross' account exist in significant tension with one another:

(a) Mr Cross: had 'compassion' for Mr Costello's situation and 'looked out' for him; assisted Mr Costello to retrieve his belongings after they were stolen at significant personal risk; assisted Mr Costello to conceal a homicide that Mr Costello had committed (by driving him away from the scene, paying for another night at the campsite and a padlock for the tent, refusing to abandon Mr Costello despite Ms Menzies' suggestions, and swapping Mr Costello into a car unconnected with the homicide while Mr Cross disposed of the implicated vehicle and gun); and talked Mr Costello out of killing himself and yet Mr Cross:

(i) sought to sell the Hyundai i30 to Mr Costello despite its connection with a home invasion, and thereby risked incriminating Mr Costello in that home invasion;

(ii) engaged in oral sex with Ms Pante behind Mr Costello's back and told her to lie about it;

(iii) proposed further oral sex with Ms Pante in the early hours of 3 December; and

(iv) treated Mr Costello with 'tough love' in the minutes before the shooting by denying him drugs and simultaneously smoking ice in front of him;

(b) Mr Cross told Ms Pante to lie about performing oral sex on him at the Kardinia Motel and yet made a comment to Ms Pante in front of Mr Costello which made it 'obvious' that she was offering oral sex;

(c) Mr Cross said that he would not supply a gun to 'rob a mate's mate' (describing it as a 'shit go') and yet he sold the gun used in Ms Pante's homicide to a friend of a friend (and thereby risked implicating that 'friend's friend');

(d) Mr Cross said that he would not supply a gun to 'rob a mate's mate' (describing it as a 'shit go') and yet was willing to use Mr Turner's bank card to steal a 'fair bit of money';

(e) Mr Cross said that he would not supply a gun to 'rob a mate's mate' (describing it as a 'shit go') and yet was prepared to lie about the Hyundai i30's connection with a home invasion when offering it to potential buyers (including his own friends);

(f) Mr Cross said he would not park the stolen Hyundai i30 out the front of Mr Drew's father's home because his father is 'a legitimate person' who might get 'pissed off', and it was a 'shit go' to do that to a mate and yet Mr Cross was prepared to lie to Mr Drew about the car's connection with a home invasion when attempting to sell it to him;

(g) Mr Cross sold the Suzuki Swift to Mr Foster without disclosing that it could be linked to a homicide at the Showgrounds because 'I don't think anyone would have bought it if they knew that' and yet only 24 hours later, upon hearing about the tent fire, sought to retrieve the car in order to protect an unsuspecting buyer;

(h) Mr Cross was fearful of Mr Turner's and his friends' reprisals following his and Ms Robinson's theft of money from Mr Turner in 2017. Those men were 'out to get' Mr Cross, who was in 'constant danger' and yet Mr Cross allowed his only gun at the time to remain in the possession of Mr Duffy and then Mr Evans between October 2017 and October or November 2018;

(i) Mr Cross was told by Mr Kennett in October or November 2018 that Mr Harmer had planned to shoot Mr Cross. Around this time, Mr Cross retrieved the shorter .22 from Mr Evans and Ms Purdie, obtained the longer .22, and a shotgun, albeit without ammunition, and was looking for multi-shot weapons to protect himself and yet Mr Cross was prepared to conduct a drug sale on Sharp Street on 1 December without any of these firearms, which he instead left in the motel room or his car;

(j) Mr Cross faced a constant threat from Mr Turner and his associates and was 'actively trying to find' multi-shot weapons and yet his Facebook messages of 1 December on that topic do not convey any particular urgency about the acquisition of such a weapon;

(k) on the morning of 3 December, Mr Cross loaded the longer .22 in response to a warning from Ms Davies that Mr Harmer was on his way to their location in Corio and yet only an hour later, Mr Cross was prepared to:

(i) loan or sell that gun to Mr Fry, a man he had never met before and who was in a dispute with another drug dealer, in response to an unprompted request from Ms Pante, a woman he had known for no more than a month; and

(ii) place the loaded gun on the bed without negotiating any loan or sale terms and in a position where Mr Fry 'could have just picked [it] up and said thanks very much and walked out the door';

(l) on the morning of 3 December, Mr Cross loaded the longer .22 in response to a warning from Ms Davies that Mr Harmer was on his way to their location in Corio and yet Mr Cross met Ms Davies in Corio again that evening to discuss selling the Hyundai i30;

(m) after Mr Costello brandished a gun at the Kardinia Motel, Mr Cross 'took it off him, put it back in my bum bag, and then I actually wore the bum bag so he couldn't get a hold of it again that night' and yet two days later, Mr Cross left what he knew to be a loaded gun within reach of Mr Costello;

(n) Mr Cross said that the extent of Mr Costello's response to being denied drugs was he 'sorta scuffed his feet a bit' and yet Mr Cross asserted that this denial contributed to Mr Costello angrily brandishing a gun not long after;

(o) immediately after Mr Costello shot Ms Pante he was in shock; he dropped the gun, his hands were over his face and the colour dropped out of him, then he took off out of the tent and, panicking, said, 'We've got to pack everything up. We've got to get rid of everything right now' and yet a maximum of 15 minutes later Mr Costello had the presence of mind to conduct a call with Centrelink lasting 4 minutes and 59 seconds during which he provided his 'full name' and 'personal detail[s]';

(p) Mr Costello had the presence of mind to conduct the Centrelink call and yet immediately after the call repeated his panicked suggestion to pack up the tent, together with the furniture and Ms Pante's body into a Suzuki Swift, in broad daylight;

(q) Mr Costello had the presence of mind to suggest buying the padlock at a shop without security cameras in order to avoid detection and yet shortly afterwards, said, 'Take me back there and give me the gun. I'm going to kill myself';

(r) Mr Costello was 'stressing about [Mr Cross] leaving and not coming back' and going to the police with the gun and yet Mr Costello left on a train at the earliest possible opportunity; and

(s) Mr Cross ostensibly sought to dissociate himself from firearms of any kind by telling Ms Purdie to forget about a gun that was not used in Ms Pante's shooting and yet he retained possession of that weapon, which was found with him in New South Wales.

549 In summary, there are multiple aspects of Mr Cross' evidence which are difficult to reconcile with one another and which, in combination, lead me to doubt the truthfulness of his account of Ms Pante's shooting. I am troubled not only by the sheer number of reconciliation problems, but also by the fact that so many of the apparently irreconcilable aspects of Mr Cross' story seem directed at answering specific elements of the prosecution case. In particular:

(a) Mr Cross' simultaneous concern and disregard for Mr Costello's wellbeing (outlined in paragraph 548(a) above) seem directed at explaining, respectively: why Mr Cross assisted Mr Costello to conceal the homicide and why Mr Costello brandished the gun at Ms Pante;

(b) Mr Cross' oscillating between an apparent expression of morality (it's a 'shit go' to 'rob a mate's mate') and obviously unethical behaviour (stealing from Mr Turner) seem directed at explaining, respectively: why a gun was left in the tent within reach of Mr Costello and what prompted Mr Cross to acquire multiple guns (to defend his assertion that the .22 found in his possession was not used to kill Ms Pante);

(c) Mr Cross' simultaneous concern for the purchasers of cars (demonstrated by his attempt at retrieving the Suzuki Swift) and preparedness to mislead purchasers of cars (by repeatedly lying about the home invasion associated with the Hyundai i30) seem directed at explaining, respectively: why the Suzuki Swift was burnt so soon after he sold it and why he sent a message about '10yrs min' (the fabricated home invasion being an integral part of that explanation);

(d) Mr Cross' assertion that his life was in constant danger and simultaneously conducting a drug deal in Sharp Street without any of his weapons seem directed at explaining, respectively: why Mr Cross acquired multiple guns (to defend his assertion that the .22 found in his possession was not used to kill Ms Pante) and how Mr Costello came to dangerously brandish one of Mr Cross' weapons (which ostensibly established that Mr Costello has a tendency to act in that way); and

(e) Mr Cross' assertion that he required multiple weapons to defend himself and simultaneously offering one of his guns to Mr Fry, a person he had never met, seem directed at explaining, respectively: why Mr Cross acquired multiple guns (to defend his assertion that the .22 found in his possession was not used to kill Ms Pante) and why a gun was left in the tent within Mr Costello's reach.

Mr Cross' precision and certainty suggest a fabrication

550 Mr Cross delivered his evidence with precision and certainty. He was firm and unshakeable in his responses throughout evidence in chief, cross-examination and re-examination. Counsel for the prosecution did not impugn his evidence as unreliable, but rather alleged it was a recent invention designed to systematically meet the case against him.

551 Mr Cross' account was comprehensive, and despite the passage of time and his own drug consumption before and immediately after the shooting, he was able to recall the minutiae of those days and events immediately before and after the shooting with confidence and without prompting. Mr Cross provided an answer to every piece of adverse evidence. When his unusual command of the details of particular memories was put to him in cross-examination, he explained that his 'life pretty much stopped not long after' Ms Pante's death, and because of that, his memories were still fresh in his mind.

552 I accept that someone's experiences, including seemingly immaterial details, might acquire a new significance in light of a traumatic event, such that they endure and cement themselves in that person's memory. However, the sheer breadth of Mr Cross' knowledge of matters traversed in his evidence, the precision of his evidence, and his unshakeable certainty are together so unlikely that it leads me to conclude that significant parts of his evidence are a fabrication. Again, I am troubled by the fact that many of the precise recollections seem directed at answering specific elements of the prosecution case.

(a) that Mr Hollonds' car windows were up some time before the shooting, when Mr Cross had no particular reason to pay attention to that fact (the effect of this recollection is that the gunshot must have been sufficiently loud to be heard in a car with its windows up, which is apparently intended to impugn the plausibility of the gunshot occurring and not being heard by the Centrelink officer);

(b) the sound of Mr Hollonds' brakes when his car arrived at the Showgrounds, when Mr Cross had no particular reason to pay attention to that fact. The combined evidence of Mr Hollonds, Mr Fry and Mr Costello also suggests that the car initially came to rest some distance from the tent, which further undermines the plausibility of Mr Cross' recollection;

(c) the content of discussions with Ms Pante across four voice calls in the early hours of 3 December, including what was discussed on each specific call, notwithstanding that Mr Cross was simultaneously occupied with driving around Geelong and conducting drug transactions (these recollections seem directed at enhancing the plausibility of Ms Pante's offering to perform oral sex in front of Mr Costello on 3 December, and refuting Mr Hollonds' evidence that Mr Cross came to the Showgrounds to conduct a transaction with Ms Pante herself);

(d) the names of persons only peripherally involved in the events of December 2018, such as the people involved in buying and selling drugs, firearms, and stolen cars who Mr Cross often knew only through friends, or friends of friends; and

(e) that there was no mallet in the tent on the morning of 3 December, when Mr Cross had no particular reason to look out for such an object and no way of knowing whether it was simply out of view while he was in the tent (Mr Cross' recollection is evidently intended to distance himself from the tent fire, given that a mallet is clearly visible in photographs of the burnt out tent).

554 In summary, I find that Mr Cross is not a witness of credit (and therefore reject his direct evidence that Mr Costello shot Ms Pante) because: many aspects of his account are inherently implausible; many aspects of his account are difficult to reconcile with other aspects; and the precision and certainty of his account suggest a dishonest fabrication. The only reasonable explanation for the implausibilities, reconciliation difficulties and precise recollections, when considered in aggregate, is that Mr Cross has moulded a version of events to meet the case against him.

555 I turn now to evidence of Mr Cross' conduct after Ms Pante's shooting.

556 By further amended notice of evidence of incriminating conduct dated 31 March 2021, the prosecution identified 13 items of evidence on which it intended to rely as evidence of incriminating conduct. I have considered those items together with the parties' relevant submissions.

557 The defence did not specifically assert that, on the basis of the evidence as a whole, any of the 13 items were not reasonably capable of being viewed by me as evidence of incriminating conduct. As such, under s 20(1)(b) of the Jury Directions Act I was satisfied that it was open for me, as the fact finder, to consider whether any or all of the 13 items amounted to incriminating conduct.

558 The law provides that I may only treat some or all of the 13 items as evidence of incriminating conduct by Mr Cross if I am satisfied that:[1176]

(a) the relevant conduct occurred; and

(b) the only reasonable explanation for the conduct is that Mr Cross believed he committed the crime of murder or an element of the crime of murder or negated a defence.

559 Further, even if I conclude that Mr Cross believed that he had committed the crime of murder or an element of the crime of murder I must still decide, on the basis of the evidence as a whole, whether the prosecution has proved Mr Cross' guilt beyond reasonable doubt.[1177] It is important to note that:

(a) there are all sorts of reasons why a person might behave in a way that makes them look guilty;

(b) even if I find that Mr Cross engaged in the conduct, he may have done so even though he is not guilty of the offence charged; and

(c) even if I think that the conduct makes Mr Cross look guilty, that does not necessarily mean that he is guilty.[1178]

560 Mr Cross did not dispute the occurrence of many of the 13 items of conduct. However, he denied: locking the tent and retaining the key after Mr Costello collected his belongings; being involved in the burning of the tent; being involved in the burning of the Suzuki Swift; and being in possession of the weapon used to kill Ms Pante when apprehended in New South Wales. Therefore, before considering possible explanations for the evidence, I must determine whether Mr Cross engaged in these four items of conduct.

561 I will begin by considering Mr Cross' alleged retention of the key to the padlock and involvement in the tent fire. Mr Xydias concluded that the fire started inside the tent on a corner of the mattress. This finding, together with the fact that the tent was locked during the course of 3 December (as observed by Mr Hollonds and Mr Fry) strongly suggests that the person who lit the fire had the key to the padlock. Furthermore, the photographs from the crime scene indicate that the padlock attached to the pull tabs of the tent at the time of the fire had yellow colouring, which accords with Mr Costello's description of the padlock purchased at the two dollar shop and is also consistent with Mr Costello's and Mr Cross' evidence that the new padlock was used to secure the tent after the shooting. I accept Mr Costello's evidence that the padlock provided by Mr Cashion was not used to secure the tent after he let Mr Cross into the tent on the morning of 3 December, which accords with photographs from the crime scene indicating that a padlock without yellow markings was located on the top of the fridge.

562 Only three people were present when the tent was locked with the padlock purchased by Mr Costello: Mr Costello, Mr Cross and Ms Menzies. Mr Cross' evidence is that he was with Ms Menzies for virtually the entire time between the shooting and their arrest in New South Wales (except when Ms Menzies dropped Mr Costello to the train station on the morning of 3 December). Therefore, after the tent was locked, up until the time of the fire, custody of the key must have been with Mr Costello (or a person given the key by Mr Costello) or Mr Cross and Ms Menzies acting in concert (or a person given the key by Mr Cross or Ms Menzies). It follows that either Mr Costello or Mr Cross/Ms Menzies was responsible for lighting the fire (whether personally, or by giving the key to another person).

563 Mr Hollonds' 000 call was made at about 1:36am on the morning of 4 December. Mr Hollonds concluded that the fire had been burning for some time due to its poor state. The Geelong CFA attended at about 1:47am, with Senior Station Officer Hovell observing a flame height of 300mm to 500mm. I am satisfied that Mr Hovell observed a stage of the fire prior to the final smouldering phase (which Mr Xydias said would include only glowing embers and flickering flames). Mr Xydias said that the fire would have burned for 'at least' 30 minutes and accepted that it could have smouldered for up to 15 or 20 minutes prior to taking off. An initial smouldering phase of 20 minutes and a burning phase of 40 minutes prior to the CFA's attendance would suggest that the fire was lit at approximately 12:47am. Therefore, I am comfortable in concluding that the fire was certainly lit after midnight, and probably no earlier than 12:30am on 4 December.

564 As explained earlier in these reasons at paragraphs 466 to 490, I have rejected as a reasonable possibility that Mr Costello returned to the Showgrounds during the afternoon of 3 December and accept his evidence and the evidence of Ms Walton that he was in bed at Ms Walton's house in Colac at 12:30am on 4 December. This means that Mr Costello could not have personally lit the tent fire. Furthermore, the uncontested evidence that Mr Costello's mobile phone was turned off throughout 3 December (after he turned it off in Mr Cross' presence) means that Mr Costello's arranging for someone else to light the fire on his behalf is very unlikely. It therefore follows that Mr Cross and/or Ms Menzies retained possession of the key and that Mr Cross was responsible for, or involved in, the lighting of the tent fire. Mr Cross' retention of the key is also consistent with his 'taking control' of the situation immediately after the shooting, which is a feature of both Mr Costello's and Mr Cross' accounts.

565 While it is unnecessary for me to conclude whether Mr Cross personally lit the fire (as opposed to instructing someone else to do so), I consider that:

(a) cessation of activity on a mobile phone connected with Mr Cross' identity at approximately 8:45pm on 3 December;

(b) contemporaneous commencement of activity on a mobile phone in Mr Cross' possession but unconnected with his identity;

(c) cessation of activity on the mobile phone unconnected with his identity at 3:27am; and

(d) resumption of activity on the first mobile phone at approximately 8:56am on 4 December,

is consistent with Mr Cross' seeking to hide his physical movements during that time and therefore consistent with his personally lighting the tent fire at approximately 12:30am on 4 December. This conclusion is reaffirmed by Mr Cross' clear awareness that mobile phone activity can be used to identify the location of a mobile phone (as established by the uncontested evidence that Mr Cross told Mr Costello to turn his mobile phone off after the shooting because it could be tracked).

566 I also reject the defence submission that Mr Cross' use of the mobile phone connected with his identity during large parts of the days after Ms Pante's shooting demonstrates that he was not attempting to hide. In my view, alternating between use of a mobile phone that is connected with a person's identity and one that is not is more suspicious and calculating behaviour than simply turning off all communication devices.

568 It is an agreed fact that police found a grey Suzuki Swift bearing registration plate 1DC4YQ burnt out on 4 December. Ms Purdie and Mr Evans gave evidence that they saw Mr Cross driving a Suzuki Swift on 2 December, and Mr Evans gave uncontested evidence that Mr Cross pointed out that the letters and numbers on the registration plate could be made to stand for the words, 'I don't care for your questioning'. This clearly aligns with the number plate found with the burnt-out Suzuki Swift. On this basis, I am satisfied that the Suzuki Swift driven by Mr Cross to the Showgrounds on 3 December is the car found burnt out on 4 December.

569 While I accept Mr Cross' evidence that it is not unusual for stolen cars to be burned after they have been used, in my view, it is highly unlikely that the burning of the Suzuki Swift was coincidental in this case. That would require accepting that a tent containing the victim of a homicide and a car used to flee the scene of that homicide were burnt for completely unrelated reasons within the space of 24 hours. Even if I accepted Mr Cross' evidence that he sold and then attempted to recover the Suzuki Swift (which I do not), I would still need to accept as a possibility that the fire was purely coincidental, or alternatively arranged by Mr Foster (but not directed by Mr Cross), in response to Mr Cross' instruction that the car needed to 'leave Geelong straight away'. Neither explanation is remotely likely.

570 Accordingly, I am satisfied to a high degree of probability that the burning of the Suzuki Swift was connected to the burning of the tent. Given my conclusion that Mr Cross was involved in burning the tent, and on no account did Mr Costello have control of the Suzuki Swift after Ms Pante's shooting, I am satisfied that Mr Cross was involved in burning the Suzuki Swift.

571 Turning finally to the firearm found in Mr Cross' possession, I am unable to reach a firm conclusion about whether that was the firearm used to kill Ms Pante. While I consider that Mr Cross' possessing two near-identical sawn off .22 rifles is unlikely (particularly given his elaborate and implausible backstory to explain it), I cannot dismiss it as fanciful given the relative prevalence of those weapons as outlined by LSC Griffiths.

572 It is now necessary to consider whether the only reasonable explanation of some or all of the 13 items of conduct relied upon by the prosecution is that Mr Cross believed he committed the crime of murder or an element of the crime of murder or negated a defence.

573 In summary, I am not satisfied that the only reasonable explanation for the following conduct is Mr Cross' belief of guilt:

(a) telling Mr Costello to get into the Suzuki Swift after the shooting;

(b) providing Mr Costello with money to pay for a further night at the campsite and to purchase a padlock after Ms Pante's death;

(c) reattending the tent while Ms Pante's body was still inside and being present when Mr Costello collected his belongings;

(d) driving in the Hyundai i30, which was unconnected to the Showgrounds, after the shooting; and

(e) viewing the Bay FM 93.9 webpage in relation to an article titled 'Police Await Tent Fire Autopsy Results' on his phone.

574 In short, each of these items of conduct could reasonably be explained by Mr Cross' account that he was assisting Mr Costello after Mr Costello killed Ms Pante.

575 However, I am not satisfied that the following conduct by Mr Cross can reasonably be explained in the same way:

(a) retaining the key to the padlock and being involved in burning the tent containing Ms Pante's body;

(b) being involved in burning the Suzuki Swift;

(c) sending self-deleting Facebook messages to Ms Purdie to the effect of 'you know nothing about the 22', and 'forget all about the Suzuki Swift';

(d) sending text messages to Mr Drew saying he had 'survived from the jacks', 'wasn't going to go anywhere without them knowing the situation' and 'when they get me I'm doing 10yrs min'; and

(e) travelling to New South Wales two days after Ms Pante's death.

576 Deliberately setting fire to a tent containing the body of the victim of a homicide is incredibly serious conduct which is difficult to explain other than by the perpetrator's direct involvement in the underlying homicide. Setting fire to a car which was parked outside the tent at the time of the homicide is similarly difficult to explain other than by a desire to destroy evidence connected with the homicide. It might be argued that another explanation in this case is Mr Cross' provision of assistance to Mr Costello (in Mr Cross' scenario where Mr Costello is the perpetrator of the homicide). However, the evidence does not come close to establishing the degree of closeness or intimacy between Mr Cross and Mr Costello that would seem necessary to raise as a reasonable possibility that Mr Cross undertook such dramatic action on Mr Costello's behalf. Further, Mr Cross said that he ceased providing assistance to Mr Costello after selling the Suzuki Swift and gun at a time when the car had not yet been burned.

577 Mr Cross' own evidence that 'I don't burn cars, [n]ever have', together with open admissions of criminal activity while driving stolen cars, is also consistent with the conclusion that his burning of a car in this case was atypical for him and therefore due to his commission of a particularly serious crime.

578 As outlined above at paragraphs 538 to 544, and 548(s), I reject Mr Cross' explanation of his sending messages to Mr Drew and fleeing interstate as inherently implausible, and seriously doubt the veracity of his explanation of the messages sent to Ms Purdie. When the messages to Ms Purdie and Mr Drew, and Mr Cross' fleeing to New South Wales, are considered together with Mr Cross' involvement in the tent and car fires, my conclusion that such messages and explanations are implausible is inescapable. In my view, when considered in combination:

(a) the only reasonable explanation for the message 'you know nothing about the 22' is Mr Cross' belief that he killed Ms Pante with a firearm (regardless of whether the weapon to which he refers was the actual .22 used or not);

(b) the only reasonable explanation of the message 'forget all about the Suzuki Swift' is Mr Cross' belief that he killed Ms Pante and that the car could link him to the homicide;

(c) the only reasonable explanation of the messages to Mr Drew saying 'when they get me I'm doing 10yrs min' is Mr Cross' belief that he killed Ms Pante and would be serving significant prison time for doing so;

(d) the only reasonable explanation of the messages saying 'survived the jacks' and 'wasn't going to go anywhere without them knowing the situation' is that Mr Cross knew it would be difficult to move freely without the police apprehending him for killing Ms Pante (which he believed he had done); and

(e) the only reasonable explanation of Mr Cross' travelling to New South Wales two days after Ms Pante's death is to avoid apprehension for killing Ms Pante (which he believed he had done). The seriousness of Mr Cross' crime is also suggested by the fact that one of his travel companions, Ms Menzies (who was present when Ms Pante was killed), changed her hair colour on several occasions in the days after the shooting. The most likely explanation for this is that it was intended to avoid their apprehension.

579 Having regard to all of the evidence I am satisfied beyond reasonable doubt that Mr Cross shot Ms Pante and caused her death.

580 Even if I was not satisfied that Mr Cross' conduct after the shooting constituted incriminating conduct in the legal sense, I would still be satisfied beyond reasonable doubt, on the balance of the evidence, that Mr Cross shot Ms Pante and caused her death.

581 Having determined that the evidence establishes beyond reasonable doubt that Mr Cross caused Ms Pante's death, it now falls for me to consider whether he did so:

582 The defence did not submit that, should I conclude that Mr Cross shot Ms Pante, there is nevertheless reason to doubt that he did so consciously, voluntarily and deliberately or without lawful justification or excuse. Nevertheless, for the avoidance of doubt, I am satisfied that those elements of the offence have been proved beyond reasonable doubt on the basis of Mr Costello's account of the shooting, which I accept.

583 Therefore, the only remaining question is whether I am satisfied beyond reasonable doubt that Mr Cross had a murderous intention when he shot Ms Pante.

584 The prosecution submits that, on the basis Mr Cross deliberately pulled the trigger of a loaded gun pointed at Ms Pante's head, his intention must have been to kill her or cause her really serious injury. His use of an inherently deadly weapon and the location of the gunshot wound near the centre of Ms Pante's forehead are 'eloquent of an intention to kill or cause someone really serious injury.'[1179]

585 The prosecution submits that the shooting did not occur unexpectedly or out of the blue. Here, the prosecution points to Mr Hollonds' and Mr Fry's evidence of an argument inside the tent, and Mr Costello's evidence that the argument involved Mr Cross and Ms Pante. The prosecution also notes the evidence of Mr Hollonds and Mr Fry that Ms Pante was angry when she left the car and entered the tent for the last time. Even though there is no evidence about the subject of the argument, the Court can be satisfied that it was an intense argument. The prosecution submits that it may not have occurred to Mr Cross to shoot Ms Pante any more than two seconds before he did, and that he may have bitterly regretted it two seconds later. However, because Mr Cross deliberately pulled the trigger, his intention must have been to kill Ms Pante or cause her really serious injury at that moment.

586 The defence's primary position is that Mr Cross did not shoot Ms Pante. As such, the defence made only brief submissions on the issue of intention.

587 The defence submits that even if the Court concludes that Mr Cross shot Ms Pante, it should not find that Mr Cross had a murderous intention. According to the defence, the absence of a motive for Mr Cross to kill Ms Pante, his apology to Mr Costello immediately after the shooting (on Mr Costello's account), the chaos and worry in the tent, and Mr Cross' text message about doing '10yrs min' are all inconsistent with a murderous intention.[1180]

588 Intention is, of course, always a matter of inference. It may be inferred from things said and done by the accused, considered in the circumstances as a whole. An intention need not be of a long duration. It need not be accompanied by any significant planning or premeditation. It may be formed spontaneously or on the spur of the moment.

589 There is no evidence in this case to establish a motive, and the prosecution concedes that it cannot prove that Mr Cross had a motive to kill Ms Pante. However, as the High Court said in De Gruchy v The Queen:[1181]

Motive is neither necessary nor sufficient: Because motive, as such, is not an ingredient of a legal offence (such as the murders with which the appellant was charged), it is not necessary, as a matter of law, for the prosecution to prove that an accused had a particular motive, still less one to commit the offence in question.[1182]

590 Absence of motive may be a valuable factor and may present a compelling line of argument for an accused, but such absence is not a 'missing link' in the chain of evidence of guilt, any more than its presence is a necessary link in that chain. On the available evidence, I cannot determine the question of motive one way or the other - that is, I am no surer that Mr Cross did not have a motive to kill Ms Pante than I am that he did. There is simply not enough evidence on this point. Accordingly, it is a neutral factor that assists neither the prosecution nor the defence.

591 It is uncontroversial that Ms Pante sustained a gunshot injury to the right side of her forehead which caused her death. For the reasons set out in my analysis of causation, I am satisfied that Ms Pante's shooting occurred in substantially the manner described by Mr Costello - specifically:

(a) Ms Pante was directly in front of Mr Cross when Mr Cross shot her;

(b) Mr Cross and Ms Pante were arguing up until the moment Mr Cross shot Ms Pante;

(c) immediately before the shooting, Mr Cross produced a gun from his person and pointed it at Ms Pante's forehead, with his arm outstretched and approximately parallel to the ground; and

(d) Mr Cross shot Ms Pante at 'point blank' range.

592 Further, Mr Cross' uncontested evidence is that he loaded the gun approximately an hour before arriving at the Showgrounds and had no doubt that it was loaded when he entered the tent. His self-described reaction to Mr Costello allegedly brandishing a gun at the Kardinia Motel demonstrates that Mr Cross knew the potential consequences of pointing this class of gun at someone, cocking it, and pulling the trigger (if that was not already obvious).

593 While the evidence does not illuminate the subject of the argument between Mr Cross and Ms Pante, there is overwhelming evidence that an argument occurred in the moments before the shooting.

594 The inexorable conclusion in these circumstances is that, at the time Mr Cross shot Ms Pante, he had a murderous intention. Firing a gun known to be loaded at or near the middle of a person's forehead at point blank range is highly purposive conduct which, in the context of an ongoing verbal altercation between the protagonists, can admit no other explanation. There is no evidence of accidental discharge in this case.

595 I am therefore satisfied beyond reasonable doubt that Mr Cross had a murderous intention when he shot Ms Pante.

596 For the reasons set out above, I am satisfied that each of the elements of the charge of murder contrary to the common law has been established beyond reasonable doubt.

597 I direct that in relation to the indictment numbered J13183983 on charge 1 - that Nicholas James Cross at Breakwater in Victoria on 3 December 2018 murdered Maddison Jane Pante - a verdict of guilty be entered.

[1] Exhibit P4 (Statement of agreed facts filed 31 March 2022), [3]-[4].

[2] See order of the Honourable Justice Incerti dated 19 May 2021 under s 192 of the Criminal Procedure Act 2009 (Vic) transferring the proceeding to Melbourne.

[3] See order of the Honourable Justice Incerti dated 25 February 2022 under s 247(1) of the Criminal Procedure Act 2009 (Vic) extending the time limit for the commencement of Mr Cross' trial beyond the 12 month period from Mr Cross' committal stipulated by s 211.

[4] A system of trial of indictable offences by judge alone was introduced for the first time in Victoria by the COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic); however, those provisions were repealed in April 2021.

[5] The transcript of the prosecution opening, pp 47 to 67, and incorporating the correction made by counsel for the prosecution on 9 March 2022 at p 90, was tendered as Exhibit P1 (Transcript of prosecution opening). The transcript of the defence opening, pp 67 to 77, was tendered as Exhibit D1 (Transcript of defence opening).

[6] Exhibit P30 (Agreed fact dated 29 April 2022).

[7] Criminal Procedure Act 2009 (Vic) s 420F(1).

[8] Ibid s 420F(2).

[9] Ibid s 420G.

[10] Ibid s 420ZG.

[11] Jury Directions Act 2015 (Vic) s 4A(2)(a).

[12] Ibid s 4A(2)(b).

[13] Jury Directions Act 2015 (Vic) s 61.

[14] R v Dickson [1983] VicRp 19; [1983] 1 VR 227, 235 (Starke ACJ, Crockett and McGarvie JJ); R v Van Beelen (1973) 4 SASR 353, 374-380 (Bray CJ, Mitchell and Zelling JJ).

[15] Taylor v R (1978) 22 ALR 599; R v Matusevich & Thompson [1976] VicRp 47; [1976] VR 470; R v Matheson [1958] 1 WLR 474; R v Hilder (1997) 97 A Crim R 70; R v Klamo [2008] VSCA 75; (2008) 18 VR 644.

[16] See Jury Directions Act 2015 (Vic) s 44I(2)(a).

[17] See ibid s 44I(2)(b).

[18] See Jury Directions Act 2015 (Vic) s 44I(2)(c).

[19] See generally Dyers v R [2002] HCA 45; (2002) 210 CLR 285, [6], [15].

[20] Exhibit P4 (Statement of agreed facts filed 31 March 2022), [3]-[4].

[21] Exhibit P4 (Statement of agreed facts filed 31 March 2022). Exhibit P4 replaces the statement of agreed facts prepared for the jury trial which commenced on 8 March 2022 (and was later vacated) contained in Exhibit P3 (Jury book), tab 2 (Statement of agreed facts dated 26 May 2021).

[22] Exhibit P3 (Jury book), tab 9 (Facebook Messenger messages between Maddison Pante and Nicholas Cross).

[23] Exhibit D2 (Text messages between Eli Cashion and Brodi Costello 30 November to 3 December 2018), 1.

[24] Exhibit P3 (Jury book), tab 8 (Text messages from Brodi Costello).

[25] Exhibit P4 (Statement of agreed facts filed 31 March 2022), [1].

[26] Exhibit P4 (Statement of agreed facts filed 31 March 2022), [2].

[27] Exhibit P4 (Statement of agreed facts filed 31 March 2022), [3].

[28] Exhibit P9 (Text messages between Brodi Costello and 'Millzy' on 3 December 2018).

[29] Exhibit P4 (Statement of agreed facts filed 31 March 2022), [24].

[30] Exhibit P4 (Statement of agreed facts filed 31 March 2022), [25].

[31] Exhibit P4 (Statement of agreed facts filed 31 March 2022), [25].

[32] Exhibit P4 (Statement of agreed facts filed 31 March 2022), [25].

[33] Exhibit P4 (Statement of agreed facts filed 31 March 2022), [25].

[34] Exhibit P13 (Docket number 55105 dated 3 December 2018).

[35] Exhibit P3 (Jury book), tab 8 (Text messages from Costello).

[36] Exhibit P30 (Agreed fact dated 29 April 2022).

[37] Exhibit P3 (Jury book), tab 12 (Transcript of 000 call made by Jesse Hollonds); Exhibit P4 (Statement of agreed facts filed 31 March 2022), [5]; P6 (Recording of 000 call by Jesse Hollonds).

[38] Exhibit P4 (Statement of agreed facts filed 31 March 2022), [6].

[39] Exhibit P4 (Statement of agreed facts filed 31 March 2022), [6].

[40] Exhibit P4 (Statement of agreed facts filed 31 March 2022), [6].

[41] Exhibit P4 (Statement of agreed facts filed 31 March 2022), [7].

[42] Exhibit P4 (Statement of agreed facts filed 31 March 2022), [8].

[43] Exhibit P4 (Statement of agreed facts filed 31 March 2022), [8].

[44] Exhibit P4 (Statement of agreed facts filed 31 March 2022), [12].

[45] Exhibit P4 (Statement of agreed facts filed 31 March 2022), [21]; Exhibit P3 (Jury book), tab 10 (Text messages to and from Nicholas Cross). See also Exhibit P25 (Text messages to and from Nicholas Cross) which duplicates and extends messages between Mr Cross and Mr Sell contained in Exhibit P3, tab 10.

[46] Exhibit P3 (Jury book), tab 10 (Text messages to and from Nicholas Cross); Exhibit P25 (Text messages to and from Nicholas Cross).

[47] Exhibit P21 (Statement of Catherine Pekalski dated 1 February 2019).

[48] Exhibit P3 (Jury book), tab 10 (Text messages to and from Nicholas Cross), message 55; Exhibit P25 (Text messages to and from Nicholas Cross), message 59.

[49] Exhibit P4 (Statement of agreed facts filed 31 March 2022), [21]; Exhibit P3 (Jury book), tab 10 (Text messages to and from Nicholas Cross). See also Exhibit P25 (Text messages to and from Nicholas Cross) which duplicates messages between Mr Cross and Mr Drew contained in Exhibit P3, tab 10.

[50] Exhibit P3 (Jury book), tab 10 (Text messages to and from Nicholas Cross), message 57; Exhibit P25 (Text messages to and from Nicholas Cross), message 61.

[51] Exhibit P3 (Jury book), tab 10 (Text messages to and from Nicholas Cross), message 58; Exhibit P25 (Text messages to and from Nicholas Cross), message 62.

[52] Exhibit P3 (Jury book), tab 10 (Text messages to and from Nicholas Cross), message 59; Exhibit P25 (Text messages to and from Nicholas Cross), message 63.

[53] Exhibit P3 (Jury book), tab 10 (Text messages to and from Nicholas Cross), message 60; Exhibit P25 (Text messages to and from Nicholas Cross), message 64.

[54] Exhibit P3 (Jury book), tab 10 (Text messages to and from Nicholas Cross), message 62; Exhibit P25 (Text messages to and from Nicholas Cross), message 66.

[55] Exhibit P3 (Jury book), tab 10 (Text messages to and from Nicholas Cross), message 65; Exhibit P25 (Text messages to and from Nicholas Cross), message 69.

[56] Exhibit P3 (Jury book), tab 6 (Costello sketches).

[57] Exhibit P10 (Excerpts from record of interview dated 4 December 2018 at timestamps: 15:24 to 17:01, 51:21 to 51:41, 54:35 to 54:58, 49:12 to 50:07 and 23:19 to 24:08); Exhibit D6 (Excerpts from record of interview dated 4 December 2018 at timestamps: 43:43 to 44:10, 48:43 to 49:13 and 50:10 to 50:31).

[58] Exhibit D3 (Photographs 1 and 2, stills from record of interview dated 4 December 2018); Exhibit D4 (Photograph 3, still from record of interview dated 4 December 2018); Exhibit D5 (Photographs 4 and 5, stills from record of interview dated 4 December 2018).

[59] Exhibit P4 (Statement of agreed facts filed 31 March 2022), [9].

[60] Exhibit P4 (Statement of agreed facts filed 31 March 2022), [9]; Exhibit P3 (Jury book), tab 7 (Photographs - burnt out car).

[61] Exhibit P4 (Statement of agreed facts filed 31 March 2022), [10].

[62] Exhibit P4 (Statement of agreed facts filed 31 March 2022), [11].

[63] Exhibit P4 (Statement of agreed facts filed 31 March 2022), [11].

[64] Exhibit P4 (Statement of agreed facts filed 31 March 2022), [13].

[65] Exhibit P4 (Statement of agreed facts filed 31 March 2022), [13].

[66] Exhibit P4 (Statement of agreed facts filed 31 March 2022), [14].