Prosecution v Accused

2 On 12 March 2022, Declan also known by his nickname DJay, went to a party in Reservoir with his friends. Declan was 16 years old. In the early hours of 13 March, Declan and his two friends left the party on foot.

3 Shortly after leaving the party, Declan and his friends were approached by a vehicle. Some of the occupants of the vehicle got out and ran towards Declan and his friends, who all ran away.

4 Very shortly after, at 2:28am on 13 March, Declan entered Horton Street from Elizabeth Street, Reservoir. He was walking alone when a vehicle entered the street. Closed-circuit television footage depicts the vehicle stopping near Declan, who turns and faces the car before eight individuals hurtle out of the vehicle and quickly move towards him.

5 Declan is subsequently attacked and killed by a group of eight young males. The entire attack is captured on the CCTV footage and lasts approximately two minutes. The attack involved the use of four knives by five of the group members. In approximately two minutes, Declan is repeatedly stabbed, kicked and stomped on. The CCTV footage and the autopsy results reveal the sustained and ferocious nature of the attack. Autopsy results found Declan suffered 66 blunt force injuries to his face and limbs, 56 sharp force injuries, comprising 29 stab wounds, 27 incised wounds, and 30 puncture wounds. The cause of death was from four of the stab wounds to his chest.

6 The prosecution alleges that SA, DM, QM and SY were involved in the attack on the deceased. SA, DM and QM deny that they were involved in the attack. SY admits that he was involved in the attack and pleaded guilty to manslaughter but not guilty to murder.

7 The prosecution puts its case against each accused on the basis of murder by complicity under s 323(1)(c), or alternatively s 323(1)(d) of the Crimes Act 1958 (Vic).

8 For the reasons set out in my judgment, I find that in relation to each accused the prosecution has proved the elements of murder by complicity under s 323(1)(c) beyond reasonable doubt. I therefore find that each of SA, DM, QM and SY are guilty of the murder of Declan Cutler.

9 The four accused, SA, DM, QM, and SY,[1] are charged with the murder of Declan Cutler ('the deceased') on 13 March 2022. The indictment alleges murder at common law.

10 Their trial proceeded by judge alone in accordance with the temporary arrangements for trial by judge alone contained in Ch 9 of the Criminal Procedure Act 2009 (Vic) ('Criminal Procedure Act').

11 In short, the prosecution alleges that in the early hours of 13 March,[2] the four accused, along with four other co-offenders, travelled from Tarneit to Reservoir in a stolen Mazda 3 intending to confront a young male, TH.

12 Once in the Reservoir area the Mazda approached TH, the deceased, and TH's cousin, KH, as they walked down a residential street. TH, the deceased and KH fled on foot, running in different directions. The Mazda pursued and eventually came upon the deceased while he was near the corner of Elizabeth and Horton Street, Reservoir.

13 The Mazda then stopped, and all eight occupants pursued the deceased and fatally attacked him in Horton Street. The attack involved the use of four knives by five individuals. Autopsy results reveal the deceased suffered 66 blunt force injuries to his face and limbs, 56 sharp force injuries, comprising 29 stab wounds, 27 incised wounds, and 30 puncture wounds.[3] The cause of death was 'stab wounds of the chest'.[4]

14 The prosecution puts its case against each accused on the basis of complicity pursuant to s 323(1)(c), or alternatively s 323(1)(d) of the Crimes Act 1958 (Vic) ('Crimes Act').

15 Sections 323 to 325C of the Crimes Act provide a statutory codification of complicity. Section 324(1) provides that a person who is 'involved in the commission of an offence is taken to have committed the offence and is liable to the maximum penalty for that offence'. Section 323(1) relevantly provides that a person is involved in the commission of an offence if the person:

(c) enters into an agreement arrangement or understanding with another person to commit the offence; or

(d) enters into an agreement, arrangement or understanding with another person to commit another offence where the person was aware that it was probable that the offence charged would be committed in the course of carrying out the other offence.

16 The attack is captured on CCTV footage from a house on the corner of Elizabeth and Horton Streets ('the CCTV footage'). The prosecution contends that each of SA, QM, SY and DM can be seen participating in the attack on the deceased in the CCTV footage. It alleges that:

(a) SY is the first male to approach the deceased ('male 1');

(b) QM is the second male to approach the deceased ('male 2');

(c) DM is the third male to approach the deceased ('male 3'); and

(d) SA is the eighth male to approach the deceased ('male 8').

17 The prosecution further asserts that the fourth to seventh males to approach the deceased were MM, JA, PM and AM, each of whom were associates of the accused.

18 Each of QM, DM and SA deny involvement in the attack on the deceased and contend that they are not depicted in the CCTV footage. Their identification as participants in the attack on the deceased is therefore a central issue in each of their trials.

19 QM and SA accept that if the prosecution proves that they are, respectively, male 2 and male 8 depicted in the CCTV footage then they are guilty of murder.

20 DM argues that even if he is proven to be male 3, he should not be found guilty of murder but instead guilty of manslaughter.

21 SY accepts that he is male 1 in the CCTV footage and on arraignment pleaded not guilty to murder but guilty to manslaughter.

22 DM and SY both argue that the prosecution has not established beyond reasonable doubt that they committed murder by complicity pursuant to ss 323(1)(c) or (d) of the Crimes Act.

23 Between 7 and 10 October 2022, each of the accused made applications for a judge alone trial. On 11 October, the Court granted the applications ordering that the charge of murder alleged against each of the accused was to be heard and determined by judge alone pursuant to s 420E(1) of the Criminal Procedure Act.[5] As such in this case, I am to apply Ch 9 of the Criminal Procedure Act as it was in force immediately before its repeal.[6]

24 I may make any decision which could have been made by a jury and my decision has the same effect as a jury verdict.[7]

25 Section 4A of the Jury Directions Act 2015 (Vic) ('Jury Directions Act') applies to this case.[8] This means that my reasoning with respect to any matter to which Parts 4, 5, 6 or 7 of the Jury Directions Act applies must be consistent with how a jury would be directed according to the Jury Directions Act. 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.[9]

26 Part 3 of the Jury Directions Act concerning requests for directions does not apply to judge alone trials. Nevertheless, counsel addressed me at the conclusion of evidence on the directions and principles to which I should pay particular regard.[10] Where appropriate I have specifically considered the matters raised when assessing the evidence before me.

27 The onus of proof is on the prosecution and each accused comes to this Court with the presumption of innocence in his favour. The accused are regarded as innocent unless and until the prosecution has proved guilt beyond reasonable doubt. To do so, the prosecution must prove each of the elements of the relevant offence beyond reasonable doubt.[11] 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.[12]

28 I must consider the case against each of the accused separately, in light only of the evidence which applies to that accused. I therefore must ask, in relation to each accused, whether the evidence relating to that accused has satisfied me beyond reasonable doubt that that accused is guilty of the offence charged. If a particular piece of evidence is only relevant to one accused, I may only use it when deciding whether that accused is guilty.

29 In each trial, I must consider all the evidence and decide the facts of the case. I must then apply the law to the facts I have found to determine whether the accused is guilty or not guilty of the offence charged.

30 I must only convict each accused if I am satisfied that his guilt is the only reasonable conclusion to be drawn from all the evidence admissible in their trials.[13] That is, both the direct and circumstantial evidence. The prosecution's case against the accused relies heavily on 'indirect' or 'circumstantial' evidence. The principles concerning cases that turn upon circumstantial evidence are well settled.[14]

31 I may draw inferences however I may not speculate or make guesses. For an inference to be reasonable, it must rest upon something more than mere conjecture. All the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence. The evidence cannot be considered in a piecemeal fashion.

32 The prosecution will not have proven each accused's guilt beyond reasonable doubt if a reasonable view of the facts is open which supports innocence. That is, I cannot return a verdict of guilty unless the circumstances exclude any reasonable hypothesis other than the guilt of the accused. A 'reasonable hypothesis' must possess some degree of acceptability or credibility. A hypothesis will not be reasonable if it is fanciful, impossible, incredible, not tenable or too remote or tenuous.

33 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 evidence.

34 In this case there were a number of witnesses who were reluctant and/or evasive in their evidence. Accordingly, I have carefully assessed their credibility and reliability when determining what aspects of their evidence I can accept and what weight should be given to it. When considering reliability, I have had regard to many factors and in this case particularly their age, whether English is their first language, and whether they had a motive, conscious or unconscious, to be partial to one side or the other.

35 During oral evidence, certain inconsistencies gave rise to applications by the prosecution to cross-examine witnesses pursuant to s 38 of the Evidence Act 2008 (Vic) ('Evidence Act'). I may use evidence that certain witnesses - namely TH, HP and AG - made prior inconsistent statements when assessing their credibility and reliability, if that evidence demonstrates that the witness is unable or unwilling to accurately recall relevant events. I must bear in mind that a witness who makes a prior inconsistent statement is not necessarily lying. While a dishonest witness is more likely to introduce inconsistencies into their stories, truthful witnesses may make mistakes about details. I may also use evidence of a prior inconsistent statement to prove the truth of the acts asserted in the statement. Ultimately if there are inconsistent statements before the Court, it is for me to determine which account, if any, I believe.

36 The accused did not themselves give evidence at trial. No adverse inference may be drawn from that fact.[15]

37 I acknowledge that the transcript of oral evidence and transcripts of audio-visual material are not themselves evidence and I must only use them as an aid. What was seen and heard in the courtroom is the only evidence in this case. I must disregard anything which is not relevant and if transcript differs from what I perceived, I am to disregard transcript.

38 The expert evidence in this case is generally not disputed. As a starting point, if expert evidence is undisputed, I must have a very good reason not to accept it. A very good reason includes: the facts underlying the opinion not being present; the process of reasoning leading to the opinion being unsound; or a factor that casts doubt on the validity of the opinion.[16] However, as requested, I have had regard to the limitations of the DNA and fingerprint evidence which was led and acknowledge that they merely provide circumstantial evidence which must be considered in light of the other evidence.[17]

39 DM and SA both sought to rely on their good character.[18] If accepted, evidence of good character can be used in two ways:

(a) it may make it more likely that an accused's evidence or statements made out of court are credible; and/or

(b) it may make it less likely an accused committed the offence charged.

40 As requested I have had regard to DM and SA's good character in the second respect. However, the mere fact that a person is a person of good character cannot alter proven facts. It can only assist me to determine whether those facts have been proven.

41 In DM's trial it is alleged that he made an admission to his mother, AG. There is also an alleged admission in QM's trial: it is alleged that shortly after the attack he admitted his involvement in the offending by telling HP 'He's around there. He's dead. Mum's life. He's dead'.[19]

42 I may only use the alleged admissions if satisfied that: they were in fact made by DM and QM, respectively, and that the substance of the admission is truthful. It is essential that the two issues of whether an alleged admission was made and, if made, whether it was truthful, are kept strictly separate. The presence of truthful facts in the alleged admission must not be allowed to distract me from the possibility that the admission was fabricated by a person aware of the underlying facts.

43 In assessing the alleged admissions, I have kept in mind that evidence of admissions may be unreliable, and I have taken this potential unreliability into account when considering the evidence of the admissions, when determining whether I accept the evidence of the admissions and, if so, in deciding what weight should be given to that evidence.

44 Identification evidence was also given by a number of witnesses. Where relevant I have been cautious when considering whether to accept the identification evidence and the weight to be given to it, having regard to any matters which may make it unreliable. I have also had regard to the fact that a witness may honestly believe their evidence is accurate when they are, in fact, mistaken and the mistaken evidence of a witness may be convincing. I have kept in mind the dangers of identification evidence and I acknowledge that a number of witnesses may all be mistaken, and that mistaken identification evidence has resulted in innocent people being convicted.

45 In the trials of SA, QM and DM the prosecution relies on certain evidence as evidence of incriminating conduct. As discussed below, in considering whether that evidence can be relied upon in such a manner I have had regard to ss 21 and 22 of the Jury Directions Act.

46 Throughout the trial I also heard evidence about other criminal activity which the accused were involved in or connected to, such as the theft of cars and driving of stolen cars. I have only used such evidence for the purposes for which it is relevant to the facts in issue and not for any other purpose. I have not decided the case based on prejudice arising from what I have heard about the accused.

47 The prosecution alleges that each of the accused are liable for the offence of murder on the basis of complicity under Div 1 of Pt 2 of the Crimes Act.

48 Pursuant to s 324(1), a person who is involved in the commission of the offence is taken to have committed the offence. In this case, the prosecution relies upon s 323(1)(c) or, alternatively, s 323(1)(d) to establish that the accused were 'involved in' the offence.

49 As the parties generally agreed, the elements of murder by complicity pursuant to s 323(1)(c), which the prosecution must establish beyond reasonable doubt, are that:

(1) the accused entered into an agreement, arrangement or understanding with at least one other person to cause really serious injury or death to the deceased and that agreement, arrangement or understanding remained in existence at the relevant time the offence was committed ('agreement, arrangement or understanding'); and

(2) at the time of entering into the agreement, arrangement or understanding the accused had the requisite mens rea for murder - an intention to cause really serious injury or death ('intention'); and

(3) the accused engaged in an overt act in furtherance of the agreement, arrangement or understanding ('participation'); and

(4) in accordance with the agreement, one or more parties to the agreement performed all the acts necessary to commit murder ('commission of murder').[20]

50 I will commence by considering the prosecution's primary case under s 323(1)(c). However, if I conclude that the prosecution has failed to prove these elements beyond reasonable doubt then I will turn to consider the elements of murder by complicity pursuant to s 323(1)(d). Furthermore, if in the case of DM, I find that he participated in the attack but I do not find the prosecution has established their case for murder under either s 323(1)(c) or (d), I will turn to consider the elements of manslaughter by unlawful and dangerous act pursuant to s 323(1)(c).

(a) Samantha Cutler, the deceased's mother;[21]

(b) RA,[22] who held a party at her home in Livingstone Street Reservoir on the night of the 12 March which was attended by the deceased;

(c) HP,[23] who attended RA's party on 12 March, was allegedly in communication with QM throughout the night and is said to have identified QM in a vehicle that stopped near her on Elizabeth Street shortly after the attack on the deceased;

(d) GD,[24] HP's friend who also attended the party and was with HP after the attack on the deceased;

(e) TH,[25] a friend of the deceased, who attended RA's party and was with the deceased when they were confronted by a group in a vehicle shortly before the fatal attack;

(f) Candise La Rocca[26] and Frank Marcantonio,[27] who lived near the intersection of Horton and Elizabeth Streets, and were awoken by the attack and called police before discovering the deceased;

(g) Nicole Fletcher,[28] Emily Borlase[29] and Stephanie Bacash,[30] who were residents in the area around RA's home and the location of the attack on the deceased and gave evidence in relation to things they heard or saw on the morning of 13 March;

(h) SC Felicity Clarke ('Clarke')[31] and SC Benn Keillor ('Keillor'),[32] who attended RA's home at 1:45am on 13 March and subsequently attended the scene of the attack at 2:33am;

(i) FC Erin Scott ('Scott'),[33] who attended the scene of the attack at 2:48am and spoke with HP and took a statement from GD;

(j) SC Georgina Taylor ('Taylor'),[34] who attended the scene of the attack and had discussions with TH and others at the scene;

(k) SC Conor Healy ('Healy'),[35] who attended the scene of the attack at 2:50am, where he had conversations with Mr Marcantonio, Ms LaRocca, and attempted to obtain a statement from TH;

(l) LSC Daniel Ryan ('Ryan')[36] and DSC Jake Ferguson ('Ferguson'),[37] who on 14 March had a conversation with TH outside TH's father's address in which TH is said to have made a number of statements in relation to the attack on the deceased including identifying SA as being involved;

(m) DSC Peta Hammerstein ('Hammerstein'),[38] DS Mark Farrugia ('Farrugia'),[39] DSC Jason Stewart ('Stewart'),[40] DSC Lal Devinder Singh ('Singh'),[41] and SC Terence Amador ('Amador'),[42] who assisted in the execution of a search warrant at QM's address which led to his arrest in a nearby park;

(n) AG,[43] DM's mother who gave evidence in relation to an admission allegedly made by DM to her following DM's police interview;

(o) DSC Daniel Herbert ('Herbert'),[44] attached to the Victorian Homicide Squad, who on 13 March conducted open source social media inquiries in relation to the investigation and, on 23 March, was involved in the arrest and interview of DM after which he had discussions with AG who allegedly disclosed admissions made by DM leading to Herbert taking a statement from her;

(p) DS Leah Marriner ('Marriner'),[45] who was involved in the arrest of SA at his home on 6 April and took possession of a mobile phone and iPad which were found near SA's bed;

(q) Janette Psaroudis,[46] a forensic scientist employed by the Victoria Police Forensic Services Centre in MacLeod;

(r) Sgt Steven Dunn ('Dunn'),[47] a Fingerprint Expert in the Northern Fingerprint Branch which is part of the Victorian Police Forensic Services Centre;

(s) Constable Nicole Bond ('Bond'),[48] who was formerly a forensic officer in the Fire and Explosion Unit at the Victoria Police Forensic Services Centre;

(t) Sgt Telen Standfield ('Standfield'),[49] who reviewed CCTV footage from QM's home address in Tarneit for the period between 12:00am and 2:00pm on 13 March;

(u) Dr Joanna Glengarry,[50] a Forensic Pathologist who conducted an autopsy on the deceased on 14 March;

(v) DSC Brendon Stack ('Stack'),[51] the informant who adduced a large amount of audio-visual and other materials obtained during the investigation;

(w) Natalie Webster,[52] the communications manager for Crime, Counter Terrorism and Intel and Covert Support Commands with Victoria Police who gave evidence that the deceased was not named in a press release made at 3:30pm on 13 March but that at some time on 14 March between the release of newspapers in the morning and nightly news, the deceased was named by the media;

(x) LSC Ryan Pitts ('Pitts'),[53] who examined the mobile phones alleged to belong to JA and HP and performed a data extraction using the Cellebrite program;

(y) SC Tori Durling ('Durling'),[54] a technical intelligence officer in the Crime Intelligence Group at the Homicide Squad, who performed Cellebrite phone extractions on the mobile phones said to belong to SY and QM and prepared some maps of cell towers using the ArcGIS mapping program using event-based monitoring data provided by telecommunications providers in relation to the phone numbers said to belong to QM, SY, JA and SA;

(z) Christian Granville-Smith,[55] a Digital Forensics Officer with Victoria Police who used the Cellebrite and Axiom software analysis data extractions from the mobile phones said to belong to SY, HP, QM and SA;[56] and

(aa) Dr Matthew Sorrell,[57] a Senior Digital Forensics Consultant and telecommunications expert who analysed the mobile phone records in relation to the telephone services alleged to belong to SY, JA, QM and SA.

52 In addition, the statements of the following individuals were read into evidence:

(a) David Rieger,[58] the owner of the grey Mazda 3 with registration 1RY-9WJ ('the Mazda') which was stolen from the Anytime Fitness gym in Armadale;

(b) JB,[59] RA's mother who on 15 March noticed that a large stainless steel kitchen knife was missing from the kitchen and on 16 March that a steel kitchen knife, a bread knife and a little green garlic knife were also missing;

(c) MS,[60] who attended RA's house on the night of 12 March and had a knife held to his throat in the front yard prompting him to call police at 1:42am;

(d) Jasmine Sharpe,[61] a graduate ambulance paramedic who attended the scene of the attack at 2:31am on 13 March and attempted a number of medical interventions on the deceased before he was pronounced dead;

(e) JK,[62] a volunteer youth worker who had worked with QM in whose name the SIM card in the mobile phone alleged to belong to QM was registered;

(f) Isabella Fishman,[63] the owner of a Holden Cruze ('the Holden Cruze') which was stolen from the Anytime Fitness gym in Caulfield; and

(g) DSC Samantha Russell ('Russell'),[64] who attended the scene at 4:42am on 13 March and assisted in the execution of the search warrant at QM's address and his subsequent arrest.

53 Furthermore, the following statements of agreed facts were tendered into evidence:[65]

(a) Agreed Facts for SY;[66]

(b) Agreed Facts for QM;[67]

(c) Agreed Facts for DM;[68]

(d) Agreed Facts for SA;[69] and

(e) Agreed Facts for QM and SA in relation to call charge records for mobile number ending 794.[70]

54 The Court conducted two views during this trial. The first view of the crime scene and immediate surrounding area took place on 16 November 2023 between approximately 10:27pm and 11:11pm. A bundle of documents including a proposed script for the informant (acting as shewer) and maps of the area was tendered by the prosecution,[71] and I sent a summary of my observations to the parties via email on 21 November 2023.

55 The second view - of a model of Mazda vehicle like that involved in the alleged offending - took place on 7 December 2023 between 10:00am and 10:02am. A summary of my observations during the second view was read into transcript.[72]

56 There is a vast array of material before the Court comprising of 236 prosecution exhibits, many of which contain multiple items, as well as three defence exhibits in the trial of QM and 29 defence exhibits in the trial of SA.

57 Much of the audio-visual materials in evidence were obtained from extractions performed on the following mobile phones:

(a) a Black Apple iPhone 8 Plus with an Optus telephone number ending in 651 said to belong to SY ('SY's phone');[73]

(b) a Black Apple iPhone 11 with a Telstra telephone number ending in 661, seized from QM's bedroom and is said by the prosecution to belong to him ('QM's phone');[74]

(c) a Blue Apple iPhone Pro Max with a Vodafone number ending in 794 said to belong to JA ('JA's phone');[75]

(d) an Apple iPhone 13 with an Optus telephone number ending in 794 belonging to HP ('HP's phone');[76] and

(e) an Apple iPhone 11 with red back seized from SA's bedroom on 6 April and linked to an Optus telecommunications service ending in 518 and registered to SA's mother, as well as a service ending in 580, said to belong to SA ('SA's phone').[77]

58 Call charge data and event-based monitoring data from these phone services were also in evidence.

59 In addition to material extracted from the above mobile devices, other audio-visual material tendered included the following:

(a) Various clips of body worn camera ('BWC') footage from members of Victoria Police on 12 and 13 March;

(b) CCTV footage from QM's home address and surrounding houses in Amsterdam Avenue, Tarneit;

(c) CCTV footage from McDonald's and KFC restaurants at the Riverdale Shopping Centre in Tarneit;

(d) CCTV footage from various properties on Nocton, Livingstone and Elizabeth Streets before and after the attack;

(e) CCTV footage from the primary crime scene;

(f) CCTV footage from various gyms and service stations said to depict some of the accused; and

(g) both SA and DM's record of interview with police.

60 The prosecution also tendered two compilation videos which combined various individual exhibits:

(a) a compilation of audio and/or visual material from 12 and 13 March, together with a table itemising each clip;[78] and

(b) a compilation of audio and/or visual material from 15 and 16 March, together with a table itemising each clip.[79]

61 During the trial, a number of issues relating to the admissibility of certain evidence were raised, with my decisions in relation to three of these matters reserved until after the completion of trial. I reached my conclusion on those issues before considering whether the prosecution has proved its case beyond reasonable doubt but have delivered my rulings on those matters alongside these reasons.[80]

62 Given the quantity of evidence, I will commence by providing an overview of the evidence and the facts I can readily accept, before considering the issues in relation to each accused and whether the prosecution has established their guilt beyond reasonable doubt.

63 The deceased was aged 16 years old at the time of his death.[81] He went by the nickname 'Djay' and had the Instagram handle 'djay.nn' at the time of his death.[82] There is no evidence before the Court which establishes that the deceased had any association with any of the accused prior to his death.

(a) SA was living in Werribee and was 17 years old. He was also known as '[SA Nickname].[83] He used the Snapchat account '[SA Snapchat]' and used the email account [SA email];[84]

(b) QM was living in Amsterdam Avenue, Tarneit and was 17 years old. He was also known by '[QM Nickname] and used multiple Instagram accounts '[QM Instagram]' and emails [QM email];[85]

(c) DM was living in Hoppers Crossing and turned 15 years old in early March. He was also known as '[DM Nickname]' and used an Instagram account '[DM Instagram]';[86] and

(d) SY was living in Taylors Hill and was 17 years old. He was also known as '[SY Nickname]' and used Instagram account '[SY Instagram]'.[87]

65 The prosecution alleges,[88] and the evidence suggests, that the accused were a member of, or associate of a group known by the moniker the '9ers' from the Western suburbs.[89]

The other alleged co-offenders: JA, PM, AM and MM

66 The prosecution alleges that the four other individuals who participated in the attack on the deceased are JA, PM, AM and MM. The following are agreed facts in the trials of SA and QM:[90]

On 13 March 2022 at approximately 1.36am, [JA] was an occupant inside a stolen Mazda 3 sedan bearing licence plates 1RY9WJ (the Mazda) in the vicinity of Isabella Way, Tarneit.

[JA] remained an occupant of the Mazda as it travelled from Isabella Way, Tarneit at 1.36am to Horton Street, Reservoir at 2.28am.

[JA] is one of the assailants identified in CCTV footage from 204 Elizabeth Street, Reservoir on 13 March 2022.

[JA] remained an occupant of the Mazda as it travelled from Horton Street, Reservoir at 2.31am to the Tarneit area.

On 12 and 13 March 2022, [JA] was in possession of a blue iPhone 12 Pro Max (the iPhone).

The telecommunications service connects to the iPhone was linked to Vodafone service ... 827. On 12 and 13 March 2022 that service was used by [JA].

[JA]'s nickname is '[JA Nickname]'.

67 There was some evidence in relation to other associates of the accused. Counsel for SA identified the following associates as potential suspects: ZM, SM, FI and AA. In videos and CCTV from 12 March, the accused can also be seen with a number of other unidentified youths. There was also specific reference in the trial to other individuals such as MF.

68 It was contended by counsel for SA, QM and DM that the prosecution has not excluded the possibility that it may be one of these individuals, rather than one of them, depicted in the CCTV footage of the attack.

69 Of the associates identified as potential suspects, particular attention was paid to ZM's potential involvement. During cross-examination by counsel for SA, the informant identified ZM in a number of videos.[91] ZM is of mid-range height, with a slim build, and fine facial features. The informant gave evidence that ZM was not visible in the CCTV from McDonald's or KFC with the larger group on the afternoon of 12 March,[92] though was arrested on 23 March with JA.[93] ZM was HP's boyfriend,[94] and was tied to multiple car thefts together with JA.[95]

70 AA was identified by the informant as being one of the young men who was at McDonald's, Tarneit on 12 March,[96] as was SM.[97] MF was identified as being one of the young men inside KFC.[98]

71 The prosecution alleges that in March there were tensions between those associated with the 9ers and another group, known as 'H-town', from the Heidelberg area. The prosecution case is that it was this animosity which led to the attack on the deceased.[99]

72 There was no evidence that the deceased was associated with H-Town. However, there were some suggestions in the evidence that TH may have been,[100] although in his evidence he denied any knowledge of H-Town or gangs in the Heidelberg area.[101]

73 HP's Snapchat records include a suggestion that - as the prosecution contend - there were tensions between H-Town and those associated with the 9ers. For example, the following exchange occurring between HP and an account whose name suggests it may belong to FI:[102]

[FI]: Ay can u set up a h town n****?

HP: Ahahaha no can do

HP: I can't get caught up in that

74 There is other general evidence of these tensions, some of which is dealt with in more detail below.[103]

75 I will now move through a chronology of the evidence led as it relates to the events leading up to, and immediately after, the attack on the deceased.

76 At 2:14pm on 12 March, a Snapchat video was taken on SY's phone. The location of the video is recorded as Taylors Lakes.[104] The video depicts four people in a car as it drives. SA can be seen in the driver's seat vaping, with PM and DM in the back seat. The person taking the video is not shown but is wearing a black Nike jacket.

77 At 2:32pm another Snapchat video was taken on SY's phone which displays the steering wheel and dash of a car, with a Mazda logo visible. The video is taken by the driver, but the car is being steered by the passenger in the front seat.[105]

78 At 3:17pm a further Snapchat video was taken on SY's phone which shows PM, wearing a grey Champion-brand hoodie, vaping in the back seat of a car. The location of the video is recorded as Coolaroo.[106]

79 At 3:30pm and 3:33pm, the Mazda - which had been stolen from the Anytime Fitness gym in Armadale on 10 March[107] - was photographed by fixed speed cameras travelling south on the Western Ring Road at the Fullerton Road Bridge, Keilor Park, and in Adeer.[108] This movement is consistent with the Mazda being the car in which the earlier Snapchat's on SY's phone were recorded.

80 During that afternoon, QM's phone's GPS data shows that it was located:

(a) in Amsterdam Ave, Tarneit at 1:22pm;[109]

(b) at Werribee Police Station at 2:34pm;[110] and

(c) at Sprinkles Ice Creamery at 3:26pm.[111]

81 A photograph taken on QM's phone at 3:26pm shows QM inside a store holding an ice-cream.[112] It appears that this image was put on Snapchat and accessed by SA's phone.[113]

82 At 3:55pm a further Snapchat video taken on SY's phone shows PM, SY, DM, and SA (who I consider is wearing a ski-mask/balaclava) sitting across the back seat of the Mazda. The video pans to show MM in the front passenger seat with AM driving, with the Mazda logo on the steering wheel visible. The location of the video is recorded as Tarneit.[114]

83 In the afternoon of 12 March, it appears that all four accused along with MM, AM, PM and JA, and other youths spent time at and in the vicinity of the McDonald's restaurant at the Riverdale Shopping Centre, Tarneit. The accused can be seen in this area on CCTV footage as well as in videos taken by QM on his phone. Among the other youths present at the McDonald's are SM, MF and AA, all of African appearance.[115] SM wears a grey Nike Tech jacket with black 'V' on the chest, grey sweatpants and black shoes. He is of average height. MF wears a black Nike Tech jacket with v on the chest and black shoes. He has a stocky build and has his hood up. AA is tall, wears all black with a white logo just below his left hip.

84 While they interact with a variety of others, the eight individuals alleged by the prosecution to be involved in the attack on the deceased all spend time together inside the McDonald's restaurant and can be seen play fighting at various points.

85 A Snapchat video of the group play fighting was recorded by QM at 5:30pm inside the McDonald's. The video commences with QM's face before the camera switches to show PM, SA, DM, JM and AM playfighting as someone says 'he's getting raped, bro'.[116] A copy of this video was saved on HP's phone at 5:32pm.[117] The evidence does not reveal how HP obtained a copy of this video, however, the CCTV inside McDonald's confirms that it was recorded at 5:30pm suggesting it must have been through QM.

86 At 6:34pm SY's phone connects to JA's hotspot, which is named '[JA Nickname]'.[118]

87 At 6:54pm a Snapchat video is recorded on SY's phone which shows him in the backseat of a moving car holding a box of cream chargers, colloquially referred to as 'nangs'. DM can be seen seated next to SY and the location is recorded as Tarneit.[119]

88 At 7:09pm a further Snapchat video is recorded on SY's phone which is taken from a footpath with a McDonald's arch visible across an intersection. It shows a car accelerating as it rounds a corner. There appears to be a group of boys watching as this occurs but only DM is clearly visible. The location of the video is recorded as Tarneit.[120]

89 At 7:12pm, a large number of young males are caught on CCTV outside McDonald's.[121] I observe that the following known individuals appear on screen in this CCTV footage: QM, AM, JA, SM, MF, SY, DM, SA, PM and MM. There are also a number of unidentified males of African appearance. Various members of the group are sucking on balloons.

90 At 7:14pm, external CCTV from 7-Eleven, Tarneit captures various young people moving through the central parking lot at Riverdale shopping centre. At 7:15pm, a grey Mazda drives from the parking lot through the 7-Eleven.[122] It is unclear from the CCTV footage tendered how many people are in the Mazda at this stage.

91 At 7:40pm, a number of young people are captured inside KFC, Riverdale Village Tarneit which is across the road from McDonald's.[123] MF and another unidentified male can be seen already inside, and SM, QM, SA, JA, DM and two other unidentified males enter shortly after. SA lies down on a table and the rest of the group stand around. SY and MM then enter, and various iterations of the group can be seen chatting and interacting while others move in and out of the restaurant.

92 At approximately 7:46pm, SA and QM move to another corner of the restaurant and can be seen chatting with a male and female.[124] At one stage, the male, who is dressed in all black with a North Face emblem on his left chest pocket approaches others in the group. He stands between DM and MM facing JA, SY and another unidentified male before moving off.

93 At approximately 7:48pm, SA, JA and QM can be seen sitting together with the couple. Through a window DM, MM and another male can be seen moving out of the restaurant at approximately 7:49pm. At 7:53pm, QM and others also leave KFC.

94 At 8:05pm, AM, PM and DM approach McDonald's, Tarneit. AM enters the store, and PM, DM, MM, JA and SY are captured walking back towards the car park.[125]

95 At 8:18pm, a running race outside McDonald's between AA and two others is captured on JA's phone. AM and QM can also be seen in the footage.[126]

96 At 8:20pm, a grey Mazda is captured on the McDonald's CCTV.[127] It is unclear where the car goes or who is inside, but at 8:50pm the Mazda involved in the offending parks outside McDonald's.[128] The Mazda's registration, 1RY-9WJ, is visible. It was stolen on 10 March from Anytime Fitness, Armadale.[129]

97 QM exits first out of the passenger-side rear door, now wearing a black puffer jacket with white emblem on left upper arm, and the same orange headphones, white t-shirt peeking out, and black pants with Champion logo on the left leg and shoes as before.[130] In the front passenger seat someone can be seen putting on an orange jacket. The prosecution suggest that this is SA and say that QM and SA have switched jackets at this point.[131] The driver and passenger remain in the car, but at approximately 8:51pm, JA and two other unidentified males enter the Mazda via the driver's-side rear door.[132]

98 The car begins backing out of the parking spot but then stops. AM, QM and another male exit McDonald's and begin interacting with those in the car.[133] The passenger-side rear door is opened, and then QM, AM and the unidentified male with orange shoes move back into the restaurant and the car pulls away. QM can be seen adjusting a balaclava over the bottom half of his face.[134] His hood is also pulled up and orange headphones worn over the hood. The three sit down again in McDonald's in the same area as the group was observed at 5:30pm and eat.[135]

99 At 8:59pm and 9:02pm, two photographs are taken on SA's phone showing SA in a car with a seatbelt on. An orange jacket can be seen slung over his shoulders and he is wearing a black shirt underneath with white text across the chest.[136]

100 At 9:19pm a Snapchat video is recorded on SY's phone, which shows some youths, including AM, play fighting outside. The location of the video is recorded as Tarneit.[137]

101 At 10:04pm a video is recorded on JA's phone showing a group of approximately nine boys dancing (which was described during the trial as the 'party video').[138] DM, PM, SY and AM all appear visible in the party video.

102 At 11:32am a further Snapchat video is recorded on SY's phone showing a silver sedan. The location of the video is recorded as Tarneit.[139]

103 Dr Sorrell's analysis of the telecommunications evidence, discussed below, also accords with SY, SA, QM and DM's phones being in the vicinity of the Riverdale Shopping Centre throughout the afternoon of 12 March.

104 The evidence revealed that it was not unusual for the young people associated with the accused to log into accounts for services such as Snapchat and Instagram on one and another's phones, because they did not have a phone, or had no data or otherwise.[140]

105 A number of Instagram messages from a number of accounts said to belong to ZM were in evidence, having been obtained from the extractions of SA and QM's phones suggesting that - at least at some point - ZM had possession of their phones. In that regard, in re-examination, Stack explained that when a user of an application like Instagram logs into that application on a new mobile device, the most recent messages sent or received to their account will save to the databases on that device.[141] If that person were to scroll back through their chat history while logged into the new phone, any chat history that loaded would also be saved onto the databases of that device.[142] Furthermore, if a user remains logged into their account on the device it will continue to download messages that are being sent in real time until that user has logged out. Therefore, the presence of messages on a particular device is not necessarily an indication that they were sent from that device; just that they were sent by a particular account which, at some stage, was logged into that device.

106 Snapchat messages between HP and ZM, retrieved from HP's phone, were also in evidence.

107 SA, QM and DM particularly highlighted ZM as another potential suspect. Accordingly, I will here outline the evidence I have before me in relation to ZM on 12 March. However, I note that there was also a quantity of messages involving ZM which predated 12 March,[143] which among other things indicate that HP and ZM were in a relationship.[144]

108 At 12:53pm on 12 March, in an Instagram message obtained from SA's phone, ZM appears to respond 'Home' to a message from DM's Instagram account from the previous day asking, 'Ay where you'. At 6:06pm, DM's account replies 'Swt' and the message is liked by ZM at 6:34pm.[145]

109 Throughout the afternoon of 12 March, HP and ZM messaged back and forth on Snapchat.[146] The messages, retrieved from HP's phone, include:

2:24:36pm ZM: Yh coz ima be in Northside either way bae

3:53:33pm ZM: Yallah stay safe bae ima come see u in a bit

3:53:35pm ZM: Love u

4:17:52pm HP: Oh I'm in my bed chilling

4:18:02pm HP: you too

110 While an Instagram conversation which occurs between ZM and an unknown user, occurring between 7:33 and 7:34pm retrieved from QM's phone, was as follows:[147]

Unknown: Telly

N****s have 450

ZM: ik there's a telly

But I need my car rn bro

I need to pick up arra n lean

Unknown: We gonna get arra

ZM: I been stranded for hours

Rs

Unknown: Who's leah

ZM: My brothers

111 Later that evening, at 10:29pm, ZM messages HP 'I feel bad baby' to which HP responds at 10:36pm 'you don't have to feel bad baby it's okay'.[148]

112 On the evening of 12 March, RA held a party at her family home in Livingstone Street, Reservoir. Her parents and brother were away for the weekend.

113 Evidence in relation to the party was given by RA, HP, GD and TH who attended the party. Evidence was also given by various members of Victoria Police who attended the party after reports were made of a knife being pulled on one of the attendees.

114 RA gave evidence that invitations were given through word of mouth and through Snapchat,[149] and that some of the invitees also invited friends.[150] At about 9:30pm a group of 10 to 15 boys who RA did not know came to the party.[151] The nicknames she learnt included Djay.[152] The following day she learnt that Declan was Djay's real name.[153] RA gave evidence that she did not know TH and was not introduced to TH but that she heard someone say 'like, "[TH] is here" and [she] had no idea who that was'.[154]

115 She stated that those invited were also mostly out the back and she tried to keep it out the back as much as she could but that the party started to move inside as the night went on.[155] The bedrooms were off limits,[156] however, her bedroom door was open and she saw people going in and out of it.[157]

116 The party started to wrap up around 1:00am or 1:30am on 13 March and RA started to kick the group of boys who had come to the party out.[158] When she was kicking the boys out they were trying to 'take, it seemed to me, weapons that weren't exactly weapons'[159], namely golf clubs, kitchen knives and forks.[160]

HP's recordings at the party and phone calls to QM's phone

117 HP's evidence is highly relevant and goes to a number of issues in this case. I will set out in the following section details of recordings HP made on her phone at the party and after she left the party with GD.

118 It is convenient to make the following comments and observations about HP as a witness given the repeated references to her evidence in my reasons.

119 HP is 17 years old. She presented as a courteous and generally co-operative witness and answered most questions. Having said that I consider HP's answers to questions were often evasive, inaccurate and on some occasions untruthful. It is not surprising that HP may have been reluctant to disclose information in court. In March 2022 HP had a significant connection to the 9ers. Her boyfriend at the time ZM was a member of the 9ers and she had a close association with QM and to a lesser extent SA. On 23 March, HP was arrested along with JA, PM and AM in relation to this case. A recorded phone call between QM and SA on 1 April when QM was on remand at Parkville Juvenile Justice Centre reveals that HP was considered a snitch by QM and SA.

120 HP's reluctance or evasiveness was evident for example when she was asked by the prosecutor to name the boys that she was arrested with on 23 March. HP initially questioned if she had to answer, then said 'I do not feel like saying their names', before she said that she had forgotten their names.[161] An answer which beggars belief. When pressed, HP asked if she had to answer that question. HP eventually named AC, QM and DM as people she was with at the time of the arrest.

121 Another example is when HP was asked questions in relation to whether she spoke to anyone in a car shortly after leaving the party. HP initially denied approaching any car or speaking to anybody in a car. [162] HP was subsequently shown CCTV footage,[163] and conceded that the two people seen walking to the car were probably her and GD.[164] She agreed that she probably briefly spoke to the driver.[165] In cross-examination HP agreed that in her statement to police she did not mention that she approached the car.[166] She went on to agree that she had no independent memory of walking over to the car until she was shown the footage in court and that she did not remember the event.[167]

122 The two examples demonstrate the difficulty with HP's evidence and distilling the truthfulness of her answers. While I found HP to be untruthful and evasive on many matters, I still found other aspects of her evidence to be compelling. I will return to her evidence and my assessment of her credit and reliability later in my reasons. I have treated HP's evidence with caution and have been careful in reaching my conclusions of fact based on HP's evidence and determining what aspects of her evidence I accept or reject.

123 Bearing these comments in mind, I will now set out the uncontroversial aspects of HP's evidence and return to the more contentious aspects later.

124 HP knew RA from school and attended her party in Reservoir with three other friends. HP arrived at approximately 10:00pm, after TH had arrived and 40 minutes prior to GD.[168] HP gave evidence that prior to the party she did not know TH but that he was friends with GD.[169]

125 While at the party, HP made video recordings on her phone at 1:22am,[170] 1:53am[171] and 1:56am.[172] These recordings were made discretely, and it appears without the knowledge of those being recorded. It is not clear why HP made these recordings.

126 In the 1:22am recording,[173] the following can be heard:

Where's [GD]?. I'm about dip (sic). Someone's picking me up. Where's [GD]? Some n****** trying to pick me up. ...Oi, [GD] come here, ...we're about to get picked up bro, [SA Nickname]'s coming.

[discussion between various unknown individuals]

N*****s, [SA Nickname]'s coming. On my mum's life.

Hey n*****s, let's post up in the whip. Let's block the streets off.

[discussion about [SA Nickname] coming far off, discussion between HP and another male who are unknown to each other]

I said I don't know. I said he's just picking me up but I'll let you guys know when he's here.

127 At 1:29am, HP calls QM's phone with the call lasting for 2 minutes and 41 seconds. HP's evidence during cross-examination was that she could not remember speaking with QM at this time.[174] HP's phone records show that at 1:32am a video was sent to an unspecified recipient.[175] The thumbnail of the video suggests it was taken at the party as it displays the white blanket with red fern-like markings visible in both the 1:04am recording[176] and the 1:22am recording.[177] I consider this is likely to be the 1:22am recording, given that the thumbnail of these videos appears identical. In any event, QM's phone records show that at 1:32am, he received the 1:22am video from HP.[178]

128 In the 1:53am recording,[179] made at the party, the following can be heard:

Fuck the 9ers? What do you mean by that though?

I didn't know you were cousins...When [SA Nickname] and stuff come, we are only dipping, no one needs to [indistinct].

[various discussion about TH's phone being missing]

[more discussion about the phone and TH having been asleep on a couch]

Everyone alright? No one's injured or anything?

No. Swalib! How'd they just come to the house like that? Y'all n*****s have just got all the doors open [indistinct].

129 In the 1:56am recording,[180] the following can be heard:

Did you just say the N-word? N*****, why you say'n n*****?...N*****, what the fuck!

I'm aboriginal, I've lived in Collingwood my whole life.

Yeah, so ask me in your language [indistinct].

You know he's friends with Dane, [indistinct].

You live on [street] with like [indistinct], yeah?

229 is the bitchest block I've ever seen in my life.

Those are the bitch ends. When they come to our flat [indistinct].

Bro, I'm gonna fucking knock someone's shit out bro, someone took my phone bro.

Ok, what if the n*****s have your phone...swalib, they just walked outside. They came inside the room, talked about is someone injured in here, we said sweet, they left...[P], don't tell me you're on bail. Don't tell me you're on bail.

I'm telling you, your friends probably have your phone.

I'm just thinking about where the fuck I put my phone.

Did you pop a Xan? Weirdo...most funniest shit I've seen.

130 The content of these recordings will be discussed below.

131 The statement of MS, who attended the house party at RA's house on the evening of 12 March, was read into evidence by the prosecution.[181] MS attended the party with eight others. He did not know RA and was aware of the party through one of his friends. When the group arrived, MS observed that a large number of people were congregated in the front yard of the house. No music was playing, and MS noted that those in the front yard were 'Drilla-looking people'. MS stated that 'drilla' is used to describe people who wear 'black-coloured clothing, masks and carry knives'. Those affiliated with 'drilla' culture 'go around drilling people, which is pretty much just assaulting people'.

132 MS approximated that there were about 30 males in the front yard and one female, who he assumed was the party host. MS remembered one male was wearing a ski mask which covered his entire face save for his eyes. MS also observed that a lot of the males carried machetes and knives and made no attempts to conceal them.

133 As he approached the house, MS observed a male leaning on the letterbox. The male had dark skin, was of African heritage, wore dark colour clothing apart from some blue around his neck and was approximately 18 years old. The male may have been wearing a cap. MS said to the male 'what's going on?' to start a conversation. The male stood up, grabbed the left side of MS's jumper and held up a knife to MS's throat with his right hand. The knife was not serrated, had a black handle with a silver metal knob on the end and was just shy of 30 centimetres in length. MS recalled that the knife was pressed to his neck where his Adam's apple is. The male mumbled something which MS could not hear, but at the end said, 'slit your throat'.

134 MS said to the male 'I'm not here for trouble. I'm leaving'. The male then let go of MS's jumper, removed the knife from MS's neck and did not say anything. MS started walking away back along the route he had arrived on and tried to relay to his group that a knife had been pulled on him.

135 At 1:42am once MS was approximately 100 meters up the road from the house, he called triple 0 and explained what happened. After MS hung up the phone, his friend ran up and expressed 'Bro, I've just had a machete pulled on me'. MS's friend looked 'shocked and upset', so he decided to call triple 0 again. MS soon heard sirens and observed a police divvy van drive by. Though this evidence provides context to the arrival of police at the party, I am satisfied it has no connection with the attack on the deceased.

136 At 1:45am on 13 March, Clarke and Keillor attended RA's home where it had been alleged that someone had held a knife to someone else's throat.[182]

137 Keillor spoke to RA 'who had a house party ongoing. She said that males had previously left the address, but they had no knowledge of a brawl.'[183] They conducted a walk-through of the property and determined that no one had any injuries.[184] During her oral evidence, RA said she was a bit confused as 'a bunch of cop cars came' and she thought it was just a noise complaint.[185] However, police told her that someone had called police to say they had had a knife held to their throat.[186]

138 Keillor activated his BWC upon arrival to the home and during his evidence identified a male who appears on screen as TH.[187] Keillor confirmed he was surprised to see TH in the house as RA had told him minutes earlier there were no males at the property.[188] Keiller also confirmed that TH appeared to ignore him while at the house.[189]

139 Clarke recalled seeing TH in the hallway of the property but did not speak with him nor anyone else.[190] TH was walking around when he was seen by Clarke.[191] Clarke and Keillor stayed at the property for approximately 10 minutes.[192]

The accused's alleged movements in the early hours of 13 March

140 The prosecution relies on audio-visual and other material primarily obtained from mobile phones, as well as CCTV footage, as evidence of the accused's movements in the early hours of 13 March.

141 From this point forward, SA and DM generally dispute the prosecution's purported identification of them in CCTV footage and audio-visual material.[193] SA and QM also contend that the prosecution has not established that they had their phones in their possession at the relevant times. I will therefore seek to briefly summarise this material and what it is said to depict or suggest by the prosecution, before considering it in more detail in my analysis below.

142 At 12:00am on 13 March, a Snapchat video is recorded on SY's phone.[194] This video was referred to throughout the trial as the 'spider-monkey [SA Nickname] video' because it commences with someone saying 'spider-monkey [SA Nickname]' before it pans up to SA sitting on a wooden structure wearing the orange Nike Tech jacket and a black balaclava. At the conclusion of the video MM can be seen below SY.

143 Between 12:33am and 12:34am, QM's phone made three phone calls to SA's phone. These calls are recorded as lasting for only 3 to 4 seconds.[195] At 12:34am, QM's phone then made three phone calls to SY's phone, each lasting for 2, 3 and 3 seconds respectively.[196]

144 At 12:35am and 12:36am, QM's phone made two phone call to JA's phone, with the calls lasting for 1 minute and 1 second and 1 minute and 44 seconds respectively.[197]

145 At 12:38am, CCTV at QM's home in Amsterdam Avenue, Tarneit shows QM entering his home. At 12:39:57am QM's phone connected to the Wi-Fi at his home.[198] QM accepts that he arrived at his home at 12:38am.[199] However, from this point forward he disputes the prosecution's identification of him until he can be seen on the CCTV at his home in Amsterdam Avenue returning home at 1:42pm on 13 March.

146 QM's phone then made phone calls to JA's phone at the following times:

• 12:46:27am, lasting for 46 seconds;
• 12:47:50am lasting for 2 seconds; and
• 12:48:30am lasting for 1 minute and 50 seconds.[200]

147 At 12:52:24am QM's phone made a further phone call to JA lasting for 2 minutes and 16 seconds.[201]

148 The CCTV at QM's home captures three young men arriving at and entering his home at 12:54am. The prosecution says that this is SA, AM and MM. SA disputes that he is depicted in this footage.

149 At 1:04am, QM's phone records indicate that Snapchat was in use.[202] At that same time a video was saved on QM's phone, and the records show this video was accessed at 1:09am.[203] This video lasts only 2 seconds. The person who is taking the video is sitting on a white blanket with red fern-like markings. This same pattern can be seen in a video taken on HP's phone at 1:22am,[204] and I can therefore readily infer that the 1:04am video was taken by HP at RA's party. The video shows a number of youths, male and female, at the party.

150 At 1:05am, QM's phone made two calls to SY's phone, with the first lasting for three seconds and the second lasting for 3 minutes and 13 seconds.[205] While at 1:09am SY's phone calls QM's phone with the call lasting 36 seconds.[206]

151 As noted above, at 1:29am HP - who is then at the party - called QM's phone with the call lasting for 2 minutes and 41 seconds. At 1:32am HP's phone sent a text message containing a video to an unspecified recipient,[207] before again calling QM's phone with the call lasting only two seconds.[208] The thumbnail of the video captured in HP's phone data appears identical to the thumbnail of the video taken at 1:22am.[209] QM's phone records show that at 1:35am, he received the 1:22am video from HP's phone.[210] This is discussed in further detail below.

152 At 1:33am QM's phone makes three phone calls to SY's phone the first two lasting two seconds and 0 seconds and the final call lasting for 1 minute and 25 seconds.

153 Then, as noted above, at 1:35am QM's phone calls HP with the call lasting only five seconds.[211]

154 At 1:36am, SY's phone calls QM's phone with the call lasting for eight seconds.[212]

155 At 1:36am, CCTV at QM's home address shows a hatch drive past. CCTV from the corner of Amsterdam Avenue and Isabella Way then captures the hatch parking on the opposite corner.[213] From the zoomed in version of this footage the hatch appears to be a Mazda 3.

156 At 1:38am, CCTV at QM's home in Amsterdam Avenue shows four individuals leave QM's home and walk out onto the street.[214] The prosecution asserts that the four individuals are QM, SA, AM and MM. QM and SA both dispute that they are depicted in this footage. Based on their distinct appearances I accept that the other two individuals are AM and MM.

157 The person the prosecution asserts is SA can be seen holding a large knife in his left hand and his phone in his right hand with either the flashlight or the screen illuminated. The person who the prosecution asserts is QM is the last to leave and is wearing a black balaclava with his phone in his hand with the background visible. QM's phone records show that at 1:38:32am his phone screen is on and at 1:39:09am the screen is off.[215]

158 At 1:39am, CCTV from the corner of Amsterdam Avenue and Isabella Way captures the four individuals who left QM's home walking down Elizabeth Street and approaching the parked Mazda on Isabella Way. The car's rear lights come on obstructing the view of their movements once they are at the car, and shortly afterwards the car drives away up Isabella Way. Before the Mazda leaves some headlights from another car can be seen in the distance.

159 HP, who is still at the party, calls QM's phone at 1:40am with the call lasting 2 minutes and 7 seconds.[216] As noted above, QM has just been captured on the CCTV from his home holding his phone.

160 At 1:46am, QM's phone connects to SY's phone's hotspot.[217] QM's phone is then used for Snapchat throughout the period of 1:46am and 1:55am.[218] QM's phone records also show that Apple maps was used to search for RA's address in Livingstone Street Reservoir at 1:55am.[219]

161 At 2:09am, a Snapchat video is recorded on SY's phone.[220] The location of this video is recorded as being Keilor East.[221] The prosecution submits that this video shows SY, MM and DM in the back seat of a car. The interior of the car resembles that of the Mazda, as seen in the numerous videos recorded on 12 March. One person can be seen in right side of the boot wearing black and there is also a flash of orange from the left side of the boot which the prosecution asserts is SA wearing the orange Nike Tech jacket he was wearing in the 'spider monkey [SA Nickname]' video.

162 Telecommunications evidence in the form of call charge records ('CCR') and event-based monitoring ('EBM') data was obtained from the providers for the phone numbers associated with SY, SA, QM and JA's phones.

163 Dr Sorrell gave evidence on what can be gleaned from this data. I accept Dr Sorrell has expertise in mobile network operations including the analysis of telecommunications records for the purpose of tracking the movements of telephone services based on the cell towers they connect to. Dr Sorrell gave detailed and useful explanations of the underlying basis for his ultimate opinions. Dr Sorrell also provided detailed maps, including a video representation, of the cell towers which the services connected to from 1:30am to 3:12am on 13 March.

164 However, Dr Sorrell's opinion is not in any real dispute and as such I will not seek to set out his lengthy evidence here. For present purposes what can be gleaned from Dr Sorrell's evidence is that the records are consistent with the four services travelling together from Tarneit towards the northern suburbs of Melbourne and were in the general vicinity of the crime scene at around 2:28am on 13 March.[222] This opinion was not in any real dispute, and I accept it. However, I bear in mind that, as Dr Sorrell openly acknowledged the records (and ultimately his opinions) are accurate but not precise. For example, while the records show the phones travelled to the Reservoir area, they cannot show that the phones made this trip together in the same car and they could have been in two cars travelling a similar route around the same times.

165 At 2:20am, CCTV from the Browns Corner Hotel situated on the corner of Bell Street and Sydney Road, Coburg, captures a grey hatch resembling the Mazda travelling east on Bell Street.[223]

166 A hatch resembling the Mazda is then captured travelling north on Elizabeth Street, Coburg North[224] by a number of CCTV cameras in properties at 153, 156, 209, 213 and 229 Elizabeth Street between 2:22am and 2:24am. There is a white van travelling just ahead of the Mazda, however, it turns left into Livingstone Street just north of 229 Elizabeth Street whereas the hatch resembling the Mazda turns right into Livingstone Street.

167 At 2:22am QM's phone calls HP's phone for a duration of 2 minutes and 18 seconds.[225]

168 Then at 2:24am, CCTV from 1/23 Livingstone Street, Coburg North captures the hatch driving east along Livingstone and pulling up on the opposite side of Livingstone Street. Between trees, two figures can be seen crossing the road and approaching the driver side of the hatch. After appearing to interact with the vehicle for approximately five seconds, the hatch drives off to the east and can be seen performing a U-turn further down Livingstone Street and returning west.[226] During this time, the two individuals can then be briefly be seen in the middle of the street appearing to cross the road and head west, between trees obscuring the view of the camera. The prosecution contends that the two silhouettes are HP and GD, who approached the Mazda to speak with the accused inside. In GD's oral evidence when asked who she thought it was in that CCTV recording, GD said 'It might have been us, I think.'[227]

169 In HP's examination in chief, she agreed that the two people seen walking to the car were 'probably' her and GD.[228] She said that she 'probably' briefly spoke to the driver.[229] HP agreed that the phone records demonstrate that she had a phone call with QM at 2:22am, and that the end of the phone call coincides with the two silhouettes approaching the vehicle on Livingstone Street. HP estimated that she saw approximately five people in the car, but only recognised one: QM. In cross-examination by counsel for QM, HP agreed that she had no independent recollection of approaching the car or speaking to those inside.[230] When asked during re-examination if HP did not put in her statement to police that she had seen QM at this stage because she wanted to protect him or herself, she said 'Yes, that's right.'[231]

170 At 2:25am CCTV from 229 Elizabeth Street captures the hatch turning right onto Elizabeth Street from Livingstone Street and continuing north up Elizabeth Street.[232]

171 At 2:26am CCTV from 15A Nocton Street, Reservoir - the street immediately parallel to Livingstone Street - shows the hatch driving through the camera's view from east to west, with three individuals visible walking to the east down the northern footpath.[233] The hatch then returns on screen driving east and stops just outside the eastern edge of the camera's view, in front of where the three individuals are now located and visible. One appears to walk to the car and interact briefly. After approximately nine seconds the three individuals all run to the west towards Elizabeth Street and out of view. Figures then appear to emerge from the car appearing on screen as they round the back of the hatch which is not in view. After a few moments two figures reappear on screen appearing to be returning to the hatch. The lighting of the footage then changes suggesting the hatch has driven west down Nocton Street back towards Elizabeth Street.

172 TH's evidence was that he, the deceased and KH were approached by a car.[234] TH said that when they ran away from the vehicle the three of them split up. TH's evidence will be discussed in detail in my analysis below.

173 At 2:28am CCTV at the front of the property on the corner of Elizabeth and Horton Streets, facing into Elizabeth Street, shows an individual - whom I accept is the deceased - running north up Elizabeth Street. Seconds later the hatch can be seen speeding north up Elizabeth Street in the same direction.[235]

174 From 2:28am CCTV from the side of the property on the corner of Elizabeth and Horton Streets captures the fatal attack on the deceased.

175 The entirety of the attack on the deceased is captured on CCTV footage obtained from the residential premises on the corner of Elizabeth and Horton Streets, Reservoir ('the CCTV footage').

176 The CCTV camera is mounted to the house and the camera faces north-west towards the intersection, overlooking the southern footpath of Horton Street. The CCTV footage commences at 2:28:25am. It does not include any audio. The view provided by the camera is as follows:

(a) the bottom left corner shows the yard of the property;

(b) the fence of the property extends diagonally from the upper left of the frame to the bottom right; and

(c) on the street side of the fence:

(i) a tree can be seen obscuring most of the left upper quarter of the frame, through the tree the light from the Big4 caravan park on Elizabeth Street (north of Horton Street) can be seen illuminated;

(ii) a small portion of the nature strip can be seen running diagonally, parallel with the fence;

(iii) Ms LaRocca's car is parked next to the nature strip on the right side of the frame; and

(iv) Horton Street can also be seen running diagonally, with parts of it obscured by the branches of the tree and Ms LaRocca's car.

177 The CCTV footage is in greyscale and is artificially illuminated through infrared. Police did not seize the CCTV camera and it cannot otherwise be said if any other technology was applied to create the images or whether what the camera captures would have been visible to the naked eye.[236] Nonetheless, my comprehension of what can be seen in the CCTV footage - and the area it depicts - was greatly assisted by the view of the area conducted on the evening of 16 November 2023.

178 The attack upon the deceased lasts approximately two minutes between approximately 2:28:35am and 2:30:30am. Timestamps are visible in the top right of the frame. For convenience, it is useful to describe the attack as occurring in two waves:

(a) the first wave is the initial assault on the deceased involving eight individuals, which commences at approximately 2:28:35am and concludes at 2:29:44am when all the co-accused have exited the frame; and

(b) the second wave involves four individuals, who return to the deceased, lasting from approximately 2:30:00am to 2:30:30am.

179 Subsequently, between approximately 2:31:45am and 2:33:05am, one individual returns onto the screen while the deceased lies motionless in front of the parked car.

180 The prosecution tendered and played the CCTV footage commencing at 2:15am.[237] In the period between 2:15am and 2:28:18am (when the headlights of the hatch first appear on screen) the scene is still, except that:

(a) at approximately 2:25:40am the lights of a car can be seen through the tree as it travels north on Elizabeth Street;

(b) at approximately 2:26:12am the lights of a car can be seen through the tree as it travels south on Elizabeth Street; and

(c) at approximately 2:27:44am the lights of a car can be seen through the tree as it travels north on Elizabeth Street.

181 Throughout the first wave of the attack it is, at times, difficult to identify exact movements or items or whether certain strikes impact the deceased. This is exacerbated by the fact that the fence and tree, as well as individuals moving about, often obscure actions and the precise location of the deceased during certain events. The CCTV footage has therefore been subject to a number of detailed and concentrated viewings.

182 At 2:28:18am the lights of the hatch enter into view as it travels north on Elizabeth Street. The car slows at the top of Horton Street. The deceased then enters view running down the south footpath of Horton Street from the corner with Elizabeth Street. He stops on the footpath between the tree and Ms La Rocca's car and is looking at the hatch as it turns into Horton Street hitting the northern curb as it does so. The deceased walks on the footpath towards Elizabeth Street and out of view as the hatch comes to a stop in the middle of Horton Street. The front of the headlights and number plate are illuminated through the branches of the tree.

183 Movement can be observed through the tree behind the Mazda headlights: one of the driver's side doors is opened. Some minor movements can also be seen behind the trunk of the tree. It is unclear if this is the deceased or another individual, as the deceased has now walked past the tree and is no longer visible on the left of the screen.

184 At 2:28:35am the deceased can be seen re-entering view from the left side of the screen running down the east footpath near the trunk of the tree. The deceased continues running down the footpath in front of Ms La Rocca's car aggressively pursued initially by one individual, male 1 (alleged to by SY), although others follow almost immediately, brandishing knives (males 2 and 3). At 2:28:36am, as the deceased reaches the middle of the parked car, he is pulled backwards onto the ground by male 1 who had grabbed a hold of the deceased's jumper from behind him. I consider that at this stage, the deceased is lying almost parallel with the fence line with his head facing towards Elizabeth Street in the position he was pulled down in.

185 As the deceased is pulled to the ground, male 2 (alleged to be QM) immediately and repeatedly strikes at him in a stabbing motion. Male 3 (alleged to be DM), who is clearly carrying a large knife, also immediately and without any hesitation starts stabbing down at the deceased repeatedly. At this time male 1 is kicking and stomping towards the deceased, who is obscured by the fence and males 2 and 3.

186 At 2:28:41am, all eight assailants are visible on screen. The deceased's body is not visible on the screen at this point. Males 4 and 6 (alleged to be MM and PM) are at the deceased and have also started kicking and stomping on him as males 1 to 3 continue to attack him. Male 5 (alleged to be JA) is standing back by the rear of Ms La Rocca's car appearing to watch the attack ahead of him. Males 7 (alleged to be AM) and 8 (alleged to be SA) have been trailing behind and have only just run onto the screen heading straight towards where the deceased lies. When they reach the deceased males 7 and 8 immediately join in the fray, kicking and stomping the deceased as the attack continues.

187 At 2:28:48am, male 8 takes a knife from male 3's hand and immediately starts stabbing repeatedly at the deceased.

188 At 2:29:24am, the deceased's head and upper body is visible, and he has his arm up trying to protect himself. He is now lying almost perpendicular Ms La Rocca's car with his head close to the passenger-side rear wheel.

189 The first wave of the attack continues until 2:29:34am when all the eight males have moved away from the deceased, with all except males 1 and 6 having exited the frame towards the car parked in the middle of the road. The first wave is frenzied, involving the use of four knives by five individuals - males 2, 3, 5, 7 and 8 - as well as the deceased being repeatedly kicked, stomped and hit.

190 At 2:29:36am male 1, who has not yet left the frame, turns back towards the deceased. He has his phone in his hand and at 2:29:41am, male 1 appears to take a photo of the deceased as he raises his leg over him as if he were about to stomp him again. At this time the deceased is still lying on his back with his head near the rear tyre of Ms LaRocca's car, barely moving. At the 2:29:41am, when male 1 is still in the frame, the deceased's right leg falls to his side, and he attempts to raise his head. He is from that time onwards motionless apart from a small rise and fall of his chest. By 2:29:44am, male 1 has left the deceased and exited out of view by the passenger side of the car.

191 SY's phone data shows that his phone is unlocked, utilising Snapchat and open for eight seconds from 2:29:36am.[238]

192 At 2:30:00am, a male, who I consider to be male 7 (AM), reappears on screen and runs towards the deceased, commencing the second wave of the attack. He has a knife in his hand and slaps down at the deceased with it before stomping on him. As he does so two others, who I consider to be male 2 (QM) and male 8 (SA), also return to the deceased. One has a knife and immediately starts stabbing down at the deceased. As the deceased's body is now partially in the frame, the location of the stabbing being inflicted can be observed; the stabbing inflicted by male 2 is to the lower part of the deceased's body below the waistline. Male 8 also has a knife, and he watches as male 2 is stabbing. At 2:30:13am, males 2 and 8 move back to the car as a person I consider to be male 6 (PM) reappears. Males 6 and 7 stomp and kick the deceased until around 2:30:27am. By 2:30:30am, only the deceased can be seen in the frame completing the second wave of the attack.

193 At ~2:30:44am the hatch drives east down Horton Street and out of screen as the deceased remains lying on the ground with his head and upper body visible near the rear wheel of the parked car. By this point the deceased is completely still.

194 At ~2:31:35am, the CCTV footage becomes illuminated from the right side of screen, presumably by headlights from a car stopped on the street out of view to the east of Elizabeth Street. At ~2:31:45am an individual who I accept is male 2 from the earlier attack, then comes into view from the right side of the screen on the nature strip at the rear of the parked car. The individual looks down at the deceased with a phone in his hand. The phone's flashlight appears to be on. He then looks around the area surrounding where the deceased is laying. He reaches down into the gutter near the front passenger side door of the Ms La Rocca's car and appears to pick something up. He then turns and looks at the deceased before bending down next the deceased and placing his hand near the deceased's waist. He then returns upright and kicks at the deceased around his legs, which are obscured by the fence. He then gets closer to the deceased's head and upper body appearing to be looking at him before turning and exiting to the right of frame at ~2:23:05am.

195 QM's phone data shows that the display was on at 2:30:24am with the end time also 2:30:24am and then on again at 2:31:40am with an end time of 2:32:04am.[239] In his submissions, QM emphasises that the data does not record that his phone's flashlight was on at this time.[240]

196 At ~2:32:13am the lighting which was illuminating the street and the deceased from the right of frame disappears. Shortly later, at ~2:32:19am, the hatch drives on the street from the right to the left of the frame. The cars headlights are off. During this time the deceased has remained lying motionless on the nature strip.

197 'Activity data' extracted from SA and QM's phones was put before the Court and is said to be reflect when the phone is moving through readings from the gyroscope.[241] The prosecution suggests that this data - showing an increase in activity between 2:20am-2:30am on 13 March - can be used together with other circumstantial evidence to infer that both QM and SA were involved in the attack on the deceased around that time.[242] When asked about the reliability of the data in cross-examination, Stack was unable to say how sensitive the gyroscope is,[243] and agreed that the data is not always reliable and certain activities might produce false activity readings.[244]

198 At 2:32am CCTV from the front of the property on the corner of Elizabeth and Horton Streets shows a car, which the prosecution says is the Mazda, travelling south down Elizabeth Street.[245]

199 From 2:32am CCTV from 229 Elizabeth Street then shows two persons on Elizabeth Street near the intersection with Livingstone Street.[246] The prosecution says that this is HP and GD. The pair cross the road from the east side of Elizabeth to the west side and then move out of sight. At 2:32:28am, a car can be seen driving north up Elizabeth Street, and at 2:32:34am, another car can be seen driving south. It is this second car which the prosecution says is the Mazda.

200 Around the time the Mazda is said to be travelling away from the crime scene, HP is again recording a video on her phone. The recording was extracted and tendered by the prosecution.[247] In the 2:32am recording, I consider that the following can be heard:

God knows, if I get hit by a van, I'm telling. These n*****s, I'm telling you, just let the 9ers handle it. Cause if I get hurt, it's not even the 9ers that are going to handle it, it's my brother! Do you know who my brother is? No, leave it, not just my brother, a Yaka cop.

He's round there, he's dead. [engine sounds] Mum's life, he's dead. [car sounds speeding off]

I don't know. [squeals]. I just caught that on recording but who the fuck is dead...no but stop, stop, stop, stop. Those n*****s need to get out of here, but who the fuck is - we need to go help that guy.

What the fuck...[QM Nickname]. Stop. Stop. Stop. I'm scared. I don't want to see no dead body.

Stop, stop, stop. We need to see if he's ok. Shh...chill...just chill [GD]. Don't talk, just walk...wait shh stop...is that him on the floor?

Wait, on the floor? Right behind the car? Wait is that someone? [addressing Ms La Rocca] I'm coming from my friend's house I'm going home.

[Muffled discussion between Mr Marcantonio and Ms La Rocca]

[Muffled discussion between Mr Marcantonio and Ms La Rocca]

Did you know anything that happened, that went on here?

Are you sure? What are youse doing out at this time?

Maybe you should keep going. Come on, this is the best idea.

But our friend left by himself, and we were just looking for him for a second.

My friend that goes to my school, she lives right there -

Our friend, his name was [TH], left and we came outside to look for him.

Does he have like curls, light hair, has a necklace on?

My partner can tell you, I really don't know. Wait can you just stay over here?

Cause he lives in my area and he left by himself, and there are boys in this area that don't like him.

You're going to need to stay here because you're going to need to talk to the police, ok?

I don't know. I just woke up to a whole lot of noise. Do the boys drive that you saw?

No, we just saw people driving past speedily, but then we knew that out friend walked off by himself -

Do you know what car they are because you are going to need to help the police, alright?

Wait cause it might not - I think he's alright, just - What's the time?

It's 2:36.

Did he say his name or anything? Is he speaking?

Nah, he's not - he's alright, he's just - my partner's with him. Just leave him. The ambulance are going to come, and the police.

Alright, can you come up here with me? Come on -

Please tell me he's not on the side of the car?

The accused's alleged movements after the attack on the deceased

201 At 2:33am the hatch is captured travelling south down Elizabeth Street by CCTV at 213 and 153 Elizabeth Street.[248]

202 At 2:33:56am QM's phone records show that a Google maps search was conducted for directions to Tarneit with the GPS coordinates of the current location being an address in Snapshot Drive, Coburg North.[249]

203 At 2:37am CCTV at Brown's Corner Hotel then captures the hatch driving west along Bell Street.[250] PM is visible in the front passenger seat. The prosecution tendered a screenshot from this footage in which the number plate is decipherable. From this I am satisfied that the hatch captured is the Mazda.

204 At 2:40am JA's phone data shows that the phone is back on and charging.[251]

205 At 2:42am a video is recorded on QM's phone from the driver's seat of a car facing forward from the driver's view with the car dash visible. The dash of the car appears the same as that of the Mazda recorded in Snapchat videos on SY's phone on 12 March and the car appears to be driving on the Western Ring Road.[252]

206 At 2:47:56am HP calls QM's phone with the phone call lasting 56 seconds.[253] QM's phone connects to a tower in Sunshine North.[254]

207 At 3:06am HP again calls QM with the phone call lasting 25 seconds.[255] QM's phone this time connects to a tower in Tarneit.[256]

208 Dr Sorrell also gave evidence that the telecommunications data is consistent with AM and SY's phones moving from Reservoir and travelling to the Tarneit area.[257]

209 The deceased was found, and police were called, by Mr Marcantonio and Ms La Rocca who lived near the intersection of Horton and Elizabeth Streets.

210 Ms La Rocca gave evidence that she was awoken by car doors, banging and yelling.[258] She recalled hearing 'young boys voices, yelling, screaming, um, saying, "Come on, let's go, let's go." [...] car doors banging, and just a painful scream - screams.'[259] Ms La Rocca estimated that there were 'a few' voices and gave evidence that they were 'calling each other the "N" word'.[260]

211 Mr Marcantonio was also awoken by shouting and screaming.[261] There was more than one voice and Mr Marcantonio could not make out any words, but the tone was aggressive, and the voices were male.[262] He could also hear 'cars driving around'. Later during cross-examination, he clarified that he didn't know if he heard a car or cars when he was inside the house, but he 'heard a vehicle driving around'.[263] In re-examination, Mr Marcantonio agreed that he never saw more than one car driving on Horton Street.[264]

212 When Mr Marcantonio awoke, his partner Ms La Rocca was already awake and on the phone. Mr Marcantonio proceeded to get dressed and went outside to the front of his fence to investigate.[265] On the opposite nature strip, he saw 'a male with a torch behind my partner's car, looking like he was searching for something. And then I heard another male shout to take his shoes.'[266] This voice came from the car waiting on Horton Street.[267]

213 Mr Marcantonio could not see any of the male's features as he was behind Ms La Rocca's car and Mr Marcantonio was standing across the road from him.[268]

214 It was dark but Mr Marcantonio could see the male with the torch was wearing a hoodie and watched him jump in the waiting car and 'took off'.[269] The waiting car was a four-door black hatch parked in the middle of Horton Street facing Elizabeth Street and Mr Marcantonio could not see into it.[270] Mr Marcantonio assumed the male in the hoodie was 'with the car'.[271] Mr Marcantonio told police that the male was between 16 and 20 years old, and confirmed in his oral evidence that this assumption was based on the male's build.[272]

215 Mr Marcantonio confirmed that in his statement given to police on the morning of 13 March, he said:[273]

The male then ran towards the black car and got into the back. I'm not sure what door he got into. The car turned its headlights off. It drove west on Horton Street, then south on Elizabeth Street.

216 Mr Marcantonio then walked over to Ms La Rocca's car and found the deceased laying on the nature strip. He 'asked [the deceased] if he was alright, touched his face, slapped him a bit, checked for his pulse, and yeah, he was gone.'[274] Mr Marcoantonio described the deceased as wearing jeans or cargo pants and a jacket, and being 'covered in blood.'[275]

217 At this stage, Ms La Rocca had come out of the house and Mr Marcantonio told her to stay where she was.[276]

218 Two young girls - HP and GD - approached the scene from Elizabeth Street and Mr Marcantonio asked them what they were doing, and they replied they were going home.[277] As set out above, HP was recording the interaction covertly on her phone.

219 At 2:38am, Clarke and Keillor attended the scene in Coburg North and Clarke observed a male 'lying on the nature strip out the front of 204 Elizabeth Street ... with his head resting against a car, and he appeared to be deceased.'[278] Clarke could not find a pulse, so she and Keillor moved the body so the deceased's head was no longer resting on the car and began to administer CPR.[279] Clarke recalled that GD, HP and TH were present at the scene at this time.[280] TH was shouting at police and wanting to know who was on the ground. He appeared to be in heightened state, emotional and agitated.[281]

220 Two paramedics attended the scene at 2:43am.[282] A number of medical interventions were attempted, including a thoracostomy and application of combat torniquet on the left upper arm.[283] Resuscitation was ceased after discussions between the police and Ambulance Victoria officers about the deceased's 'unknown downtime'. At that stage, CPR had been performed for approximately 15 minutes and the deceased showed nil signs of life.[284]

221 Scott, Taylor, Healy and Keillor each gave evidence in relation to their activities at the scene, including their interactions with TH, GD and HP at this time. BWC footage of Taylor and Scott was played during trial which shows conversations with, and the actions of, TH, GD and HP. The relevant aspects of these interactions will be discussed in more detail in my analysis below.

222 Evidence was given by three other nearby residents of what they saw or heard in the early hours of 13 March: Ms Borlase, Ms Fletcher and Ms Bacash.

223 Ms Borlase lived at an address on Elizabeth Street,[285] although there was no evidence before the Court of her precise address or its proximity to where the deceased was attacked.

224 At 2:00am on 13 March, Ms Borlase awoke to the sound of car doors shutting which prompted her to look at the CCTV on her phone of the exterior of her property.[286] She confirmed in cross-examination that she heard voices before she heard the car door slam.[287] All she heard was murmurs rather than what was being said and she confirmed that the CCTV itself did not have audio, and what she heard was from outside.[288]

225 On the CCTV, Ms Borlase recalled one car arrived and then a second pulled up.[289] She saw the two cars and 'people running down from Elizabeth Street onto my street ... they were going between cars ... conversing with each other.'[290] She could not tell what colours the cars were.[291] Ms Borlase estimated there was about six people running around but she could not be sure.[292] She did not hear any talking and said the people were just getting in and out and speaking with those in other cars.[293]

226 Ms Borlase gave a description to the police of seeing a number of people wearing hoodies, and those from the first car having interactions with those from the second.[294] In cross-examination she recalled that someone from the first car approached the second car when it arrived.[295]

227 She could see the faces of those in the cars lit up by phone screens, and once a third car arrived, the two vehicles departed.[296] In cross-examination, she stated 'once the people that were there were both in the cars, they were awaiting a third car to come by.'[297] Ms Borlase estimated that there was one person in the third car.[298] Of the third car, she stated:

So the two vehicles, they took a while to depart. The third one was quite rapid in its departure. It pretty much - it did not stop. So they were waiting for that vehicle, my observation, and once that vehicle had come by, the cars then departed thereafter.[299]

228 Ms Borlase estimated that she watched the cars on the CCTV for 'a couple of minutes at most.'[300] All three cars were driving in the direction of Corden Street.[301]

229 Ms Fletcher lived in a property just south of the intersection of Elizabeth and Horton Streets.[302] Over the course of the evening of 12 March and the early hours of 13 March, she was drifting in and out of sleep and being awoken each time she heard noises.[303]

230 Ms Fletcher first heard a group of people walk past but was unable to say what time that was.[304] Ms Fletcher could not be sure which direction the group was walking.[305]

231 Ms Fletcher later heard a second, larger group walking on the opposite side of the road to her property.[306] She agreed that this group was moving north.[307] Ms Fletcher guessed that the gap between the first and second groups was about half an hour or so.[308]

232 Much later, Ms Fletcher heard two male voices outside through her open window.[309] When she heard the voices, she was standing in her front room which faces towards Elizabeth Street.[310] Ms Fletcher gave evidence of hearing the following exchange take place:[311]

I heard one boy say, 'Hide.' And then I heard the same voice say, 'I can see your shadow.' Um, 'Hide,' and then he said, um, 'I'll kill you if you don't hide'.

233 Ms Fletcher was also able to recall hearing one police siren, which prompted the male voices to comment that the police 'are here, and to hide'.[312] She then turned on her front porch light after encouragement from her partner and through her venetian blinds, Ms Fletcher was able to see the silhouette of a person right next to the front fence.[313]

234 Ms Fletcher gave evidence that her front property fence is low and surrounded by trees. She stated that when she saw the silhouettes, they were crouched down on the north side of the fence.[314]

235 Ms Bacash lived in Elizabeth Street,[315] although there was no evidence before the Court of her precise address or its proximity to where the deceased was attacked.

236 She arrived home at 1:30am on 13 March and gave evidence that she 'heard commotion outside' around 2:00am when she was sitting in her front lounge.[316] Ms Bacash clarified that what she heard was 'just screaming boys, yelling, just running up and down',[317] and when she went outside to investigate she saw a group walking down Elizabeth towards Woolworths in the direction of Murray Road.[318] There were approximately four boys and they 'looked young' to Ms Bacash.[319] Ms Bacash agreed that the boys in that group appeared Caucasian,[320] and that she watched the group for four to five minutes then went back inside.[321]

237 Approximately 20 minutes later, Ms Bacash heard a loud engine and looked out the window to see a car stopped and 'there was a teenage boy just running around trying to convince the driver to let him in.'[322] Ms Bacash agreed in cross-examination that she is familiar with cars and said the car engine sounded like it wasn't 'stock' and was very loud.[323] Ms Bacash thought the car was a dark sedan and the tail lights looked like it was an Ford XR6.[324]

238 She estimated that the teenage boy she saw was between 16 and 23 years old,[325] and gave evidence that he was 'running around the car ... beating on the bonnet to let the ... driver, like, stop to let him get in so he can take him up the road to not be found by the cops.'[326] Ms Bacash agreed that she thought the boy had dark skin and had a white jumper tied around his waist.[327] She thought that the driver of the car 'definitely wasn't an Uber driver or a taxi. It was a friend, I'm guessing'.[328] The boy eventually got into the car but Ms Bacash could not recall which side of the car he got into.[329]

239 The car then departed, and Ms Bacash recalled the same car coming back onto the main street a few minutes later.[330]

240 The following Instagram message exchange from 13 March, between ZM and a user named '[username]', was retrieved from QM's phone:[331]

241 As noted above at 2:47:56am HP calls QM's phone with the phone call lasting 56 seconds.[332] None of ZM's messages above were sent during this phone call.

242 The following Instagram messages between ZM and an unknown user on 13 March were also retrieved from QM's phone:[333]

I just need to rant I haven't told anyone about this shit

243 At 4:13am ZM sent HP an Instagram message, retrieved from JA's phone, stating 'Henny bro'.[334] While at 5:04am HP sent two pictures to ZM on Snapchat, prior to the following Snapchat conversation, which was extracted from HP's phone:[335]

Caathi I'll give you space but wallahi promise me u wont do anything dumb

I'll deal with these kids they wont do anything to u anymore

244 Later that evening, at 8:18pm ZM sent HP an image on Snapchat, the thumbnail of which appears to show him sucking on a balloon, and the following exchange then occurred:[336]

245 At 11:23pm HP also sent an Instagram message to ZM, retrieved from JA's phone, merely stating 'hi'.[338]

246 The data extracted from QM's phone shows that on 13 March:

(a) QM's 'Find My iPhone' account was disabled at 3:19am;[339]

(b) QM's Snapchat account, '[QM Snapchat]', was deleted at 3:27am;[340]

(c) a screenshot was taken of QM's phone's lock screen showing its background at 4:18am;[341]

(d) at 5:32am QM's phone auto connects to SY's hotspot for the last time;[342]

(e) QM's Snapchat account, '[QM Snapchat]', is reactivated at 1:42pm;[343]

(f) at 2:06pm an audio file named '[QM Audio File] - time lost' containing a rap referring to the 9ers was accessed and screen recorded;[344]

(g) at 2:27pm a video was created with a filter which depicts QM's face superimposed onto a CGI-generated person wearing a Panama hat, sitting on a cartoon couch on a tropical island under a starry sky, watching a video of himself on a phone;[345]

(h) an Optus SIM card is inserted into QM's mobile at 4:56pm;[346]

(i) at 5:32am an internet search is conducted for 'Coburg North';[347] and

(j) at 11:50pm the Uber app places the phone at QM's home in Amsterdam Avenue, Tarneit.[348]

247 Data extracted from SA's phone shows that on 13 March:

(a) at 5:21am SA's phone connects to SY's phone hotspot;[349]

(b) at 10:20am SA took a photograph of himself in the orange Nike Tech jacket;[350] and

(c) at 10:27am SA's phone took a screenshot of an Instagram story relating to the deceased's death.[351]

Evidence of DM and QM returning to their homes on 13 March

248 At 11:33am CCTV from DM's home in Hoppers Crossing shows DM, PM and AM arriving at DM's home.[352]

249 At 1:42pm CCTV from QM's home in Tarneit shows QM returning home.[353]

250 Ryan and Ferguson gave evidence that on 14 March they had a conversation with TH outside his home in which TH made a number of statements including that those involved in the attack on the deceased were from the Tarneit area and that he saw '[SA Nickname]' in the vehicle when he, KH and the deceased were confronted. However, TH refused to give a formal statement and in his evidence at trial TH denied having any memory of this conversation. This evidence will be dealt with in greater detail below.

251 At approximately 9:30pm on 15 March, Isabella Fishman attended the Anytime Fitness gym at 201 Balaclava Road, Caulfield in the Holden Cruze.[354] At approximately 10:40pm, Ms Fishman called triple 0 because she noticed two males of African appearance not wearing gym gear and looking around. One male was approximately 165 cm tall, was wearing read shorts, a jumper and had black hair in cornrows. The other male was slightly taller but Ms Fishman 'did not get a look' at him.[355] Ms Fishman then checked and realised her gym bag was gone. Upon checking outside, her car was no longer parked on the street.[356]

252 Footage was tendered before the Court which depicts the following persons entering the Anytime Fitness in Caulfield at approximately 10:27pm on 15 March:[357]

(a) JA, wearing an orange jumper with white and black stripes across the chest, black pants and tan boots;

(b) DM, wearing a blue hoodie with the broken stripes down the arms, beneath the hoodie is a blue sweatshirt with 'Sabres' written in orange across the chest, grey tracksuit pants with a black stripe running half-way down the right leg and black shoes; and

(c) an unidentified third male wearing a black hoodie, a black t-shirt with 'Hilfiger' written in white and read across the chest, black pants and off-white running shoes.

253 At 12:54am on 16 March, a video is taken on JA's phone from inside a car which depicts ZM, PM, DM and JA, who is driving.[358] A McDonald's receipt, found in the Holden Cruze, shows that at 1:03am on 16 March a purchase totalling $79.60 was made at McDonald's Riverdale Village in Tarneit.[359] A video taken at 1:13am found on JA's phone depicts the same four persons in a Holden car holding various drinks and food bags from McDonald's.[360]

254 At 3:38am, another video on JA's phone is taken from the front passenger seat of the same car.[361] At 5:01am on 16 March, a photo is taken on JA's phone depicting the dashboard of a Mazda.[362]

255 At 5:48am, the Holden Cruze pulls up at the BP Service Station at 1500 Pascoe Vale Road, Coolaroo. DM is wearing a blue North Face hoodie identical to the one he was wearing on 12 and 13 March, grey tracksuit pants with black stripe running half-way down the right leg and black shoes. He can be seen exiting the front passenger seat. He fills up what appear to be two McDonald's drink cups from the petrol guzzler and gets back into the car which then drives off.[363] This service station is approximately five minutes' drive from the location where the Mazda is later found by police.[364]

256 At 6:00am, a dark-coloured car can be seen pulling up in front of 25 Parish Court, Meadow Heights. This car is parked next to Papworth Place Reserve and becomes illuminated by light when another car, the Mazda, catches flames within the Reserve. After the blaze of light from the flames, five people run from that direction and enter the black car which then drives off.[365]

257 Bond examined the burnt-out Mazda,[366] and confirmed that 'the cause of the fire was the ignition of the combustible material in the passenger compartment assisted by the presence of petrol'.[367] When asked her view on the ignition of the fire she stated there was no obvious sources of accidental ignition inside the passenger compartment so she concluded the most likely source of ignition was by means of a match or cigarette lighter.[368]

258 A second McDonald's receipt was also found in the Holden Cruze after JA's arrest, this time from McDonald's Riverdale Village, Tarneit at 6:52am on 16 March for a purchase totalling $71.10.[369]

259 At 8:23am, a video is taken on JA's phone from inside a car with the Holden logo on the steering wheel.[370] I find that it depicts JA, ZM, PM and AM sleeping in the car. The person taking the video is not shown.

260 On 14 March at 12:56pm, 16 March at 8:24am and 20 March at 3:35pm, SA's phone was used search for 'Coburg north stabbing'.[371]

261 On 14 March SA set up an AusPassport account. On 15 March, he obtained a passport photograph and on 16 March he searched the internet for 'my passport sign in' and accessed the Australian Passport Office's website.[372]

262 On 20 March, a screenshot of an article about the deceased was taken on SA's phone.[373]

263 At 7:04pm on 29 March a note was created on SA's phone. This note was last modified on 1 April at 3:40pm. It cannot be determined what changes were made at what time between those two dates. The note contained the following rap lyrics:[374]

Shh got got for chatting on my broski

N he's bro ran for he's life

Most hated so I keep it closely

I did it in the day n I did it at night

My Rambo got way too horny

Now I'm the reason u can't sleep at night

Pls don't say u backed ur guy

U did 10 toes wit no goodbye

Bet u texted him wya

Shh got got so he didn't reply

Spark up a j for dj

264 At 9:29am on 14 March, a note on QM's phone containing rap lyrics was modified.[375] The note was originally created on 8 March at 11:56pm and it cannot be determined what changes were made to the note on 14 March. The note reads:

He was talking up on the 9 you fucked up for goodness sakes

Like how many times how many times did I insert my blade?

Like how many times did I do it wit hate

Had a mask on my face cause I can't be bait

Flaaco I found where u stay best not lack or we spin a renegade

My broskis way too tapped when he risee his mind and slashing away

They said it's tit for tat so I stepped wit cro when shh got packed

265 On 14 and 15 March, a number of searches are made on QM's phone including visiting the Australian Passports Office website which suggest he, or whoever was using it, was trying to obtain a passport.[376]

266 On 16 March at 8:15pm an image of QM was created on QM's phone with the words 'killers that have never been caught' superimposed on it.[377]

267 Between 1:03am on 20 March and 5:58pm on 22 March, a note was created and later modified on QM's phone which contained the following rap lyrics:[378]

Cross his name off the fuckin hitlist me my bro's gon slide let's go

We ride wit steel Trynna aim for the kill lotta n****s claiming gang you ain't step with my bros

Popped a perk my feelings gone, broski telling me stay strong

For the 9 it's bottles up, fake opps trynna get rid of us

Come to the 9 get k'd, how many opps got laid ?

Broski telling me aim for the face, but I'm doing that shit anyway

I be posted all night all day, moonlight shines boy it's time to pray

Guess it's time for the evil play, Ching him down in a splashy way

Fuck the judge Ian copping no sentence, time go slow Trynna teach me a lesson

Don't wanna hear it stop begging and begging

Spare your ..... now u must be tripping

He want smoke bro stop the cap, quit showing them unloaded waps

268 A video which appears to be a screen recording of a post on QM's Instagram was saved on HP's phone on 19 March at 9:58pm. The Instagram post is a video which shows QM and SA in a bedroom. QM is filming and his hand can be seen holding a knife out towards SA who is walking around the room. QM says '[SA Nickname] got hit in the spine' and SA screams before the camera switches to the front facing camera showing QM's face.[379]

269 QM was arrested on 23 March after police executed a search warrant at his home. Evidence in relation to the execution of the search warrant, as well as QM's arrest and statements he made to police after he was arrested and cautioned, were given by: Singh; Amador; Stewart; Hammerstein; Farrugia; and Russell.

270 This evidence is all subject to the prosecution's further amended incriminating conduct notice (the 'Incriminating Conduct Notice'), dated 23 October 2023, discussed in detail below. The evidence depicts that QM fled the house while police were exercising the search warrant. After being arrested and cautioned QM is said to have asked police 'is it only me who's arrested?' and when he was later asked for the PIN for the mobile phone seized from his bedroom he refused to provide his PIN to police.

271 It is an agreed fact that when exercising the search warrant at QM's home police located a pair of black trackpants with a white stripe, a black balaclava, a pair of Nike runners with yellow insignia, a Black Apple iPhone 11 and a CCTV system.[380] Hammerstein gave evidence that she took photos of a number of other items seized at QM's house, including an exercise book, loose leaf paper with drawings belonging to QM and a single white sneaker with graffiti.[381]

272 DM was arrested on 23 March at his home in Hoppers Crossing. Police searched the premises and located two black Nike hoodies - include a Nike Tech jacket[382] - a pair of Nike 'TN' runners, a pair of Nike 'Air Force' runners and electronic devices including mobile phones and a CCTV hard drive.[383]

273 As will be discussed further below, DM gave a police interview which was played during trial. His mother, AG was present during this police interview. There is evidence suggesting that at the conclusion of the interview, when AG and DM were alone, DM told AG that he was involved in the attack on the deceased. This evidence is discussed in detail in my analysis.

274 SY was arrested on 23 March at his home in Taylors Hill. Police searched the premises and located two pairs of Nike 'TN' runners, a black Nike jacket and a navy-blue satchel bag. SY's phone was also seized.[384] Police also photographed a grey Nike Tech jacket found at SY's house.[385]

275 It is an agreed fact in SY's trial that he possessed and used his phone on 12 and 13 March.[386] It is also an agreed fact that on 16 March, SY created the following entry in the Notes application of his phone:[387]

Bros on Locks He's Stuck in Da Box The Opps Tweaking A lot These Doors Get Popped N They Skettin Off Broski 2Tapped N We Throwin 9inez Up Lights Off When We Go On Trip Catch My Man and Feed Him The Stick You Know That The Gang Gangs Loadin Way Before Covid I Was Puttin My Mask Down Please don't slip Please don't get ashed out my Bro [SA Nickname] Tryna turn man pack now speak on the 9 n you might not touch down under the ground where u might touch down

276 In evidence are recordings of three phone calls made by QM whilst he was in custody in which he had his mother merge the call with SA. The contents of these calls, which will be discussed in my analysis below, are relied upon by the prosecution as evidence of incriminating conduct against QM and SA.

277 On 6 April, police arrested SA in his bedroom at his home in Werribee. An Apple iPhone 11 with red back was located and seized.[388] SA was interviewed by police and the record of interview was played during the trial. The contents of SA's interview will be discussed below.

278 The deceased's body was transported from the crime scene to the Victorian Institute of Forensic Medicine for autopsy by Dr Glengarry.[389] The autopsy took place on 14 March and an autopsy report dated 19 July detailing Dr Glengarry's findings was tendered.[390]

279 The deceased was 178cm tall and weighed 68kg at the time of his death.[391] The deceased was found to have suffered injuries to almost every part of his body.[392] Dr Glengarry's findings as to injury were categorised as follows:

(a) 66 blunt force injuries to the face and limbs;

(b) 56 sharp force injuries, including four stab wounds to the chest region 'associated with lethal injuries'; and

(c) 30 puncture wounds.

280 Dr Glengarry gave evidence that she was unable to determine precisely what caused the deceased's death, and his official cause of death was recorded as 'stab wounds of the chest'.[393] There were four stab wounds which entered the left side of the deceased's chest - one to left anterior chest, two to left lateral chest and one to left upper back - which created a 'combined wound track' and which caused fatal injuries to the heart and lungs.[394]

281 The stab wounds constituting the combined wound track measured as follows:

(a) Left anterior chest - 4.6cm;[395]

(b) Left lateral chest - 3.6cm and 3.8cm;[396] and

(c) Left upper back - 3.9cm.[397]

282 Each of these wounds required at least moderate if not severe force,[398] and because of the nature of the internal injuries they caused, 'it is problematic to determine which injuries and wound tracks belong to which skin injury'.[399]

283 Dr Glengarry confirmed that after the autopsy she viewed the CCTV footage of the attack and was again unable to determine which injury or blow contributed to or caused death. Both the low quality of the CCTV footage and the complex nature of the attack contributed to this conclusion.[400]

284 The deceased also sustained two stab wounds, one to the sacrum and one to the left lower abdomen, which Dr Glengarry said were 'associated with incision of the bone of the iliac crest' at the back of the pelvis.[401] These injuries would require severe force because bones are hard structures.[402]

285 Ms Psaroudis is a forensic officer with the Forensic Biological Sciences Group at the Victorian Police Forensic Services Centre.[403] A report dated 29 September detailing Ms Psaroudis' findings was tendered by the prosecution.[404] I note that DNA evidence is circumstantial evidence and must be considered together with the other evidence in the case.

286 Ms Psaroudis was provided with 11 DNA reference samples for comparison from the eight accused, FI, HP and the deceased, and examined 18 evidentiary items in relation to these proceedings.[405] During her DNA analysis, Ms Psaroudis used both the Australian Caucasian database and the Sudanese or Somali databases where necessary.[406]

287 One of the evidentiary items examined was the pair of black Nike TN runners. Stack gave evidence that this pair of shoes was found in the footwell of the Holden Cruze that JA was arrested in on 17 March.[407] DM's fingerprints were found to be on that car,[408] and DM, wearing his North Face blue hoodie can be observed with JA and another friend on 15 March at the Anytime Fitness gym, Caulfield at the time the Holden Cruze was stolen.[409]

288 Ms Psaroudis gave evidence that the amount of DNA found inside the shoes is consistent with someone wearing the shoes, and the DNA found is 100 billion times more likely if DM is the contributor, than any other random person.[410] Trace DNA on the outer heel of the right shoe was also found to be 250 thousand times more likely if AM is the contributor than any random person. Based on this evidence I am satisfied that DM was the wearer of the black Nike TN runners found in the Holden Cruze.

289 Ms Psaroudis confirmed that on examination and analysis, blood staining was observed on Nike TN runners. Photographs of the Nike TN runners with markings identifying blood stains on them were tendered into evidence.[411]

290 Ms Psaroudis explained that blood is a rich source of DNA and stated that in her opinion she was able to analyse the DNA from that sample of blood and compare it to the reference sample for the deceased. The results indicated that it was one hundred billion times more likely that the blood originated from the deceased than from any other random person.[412] Ms Psaroudis was asked a question and in relation to that confirmed blood on the upper section of the left shoe near the laces, sample 11-6:[413]

Q: Was a DNA profile able to be obtained?

A: Yes. I get a mixture of, ahh, two contributors was obtained. We had lots of DNA from one person and a very tiny amount from a second person that we haven't been able to compare to because, ahh, it was, ahh, too little information, umm, from that second person. Ahh, so a direct comparison was done to that major contributor. Umm, the - DNA evidence is one hundred billion times more likely if [the deceased] is a source of the major component of DNA, um, ahh, in this DNA profile. And, in my opinion, that major component of DNA has originated from the blood.

291 In this case, Ms Psaroudis' evidence is the blood taken from the upper section of the left shoe near the laces is extremely likely to have belonged to the deceased.[414] Ms Psaroudis compared that blood sample to the eight accused, HP and FI and excluded them all as major contributors to the blood stain.[415]

292 In cross-examination Ms Psaroudis was asked in relation to that blood sample:[416]

Q: In relation to how the blood got there, are you able to give an indication?

A: Yes, I did do blood stain pattern analysis on this case, but I haven't included it in this report.

Q: OK. Are you able to say how the blood got there?

A: Um, it was an air borne blood stain. Um, a force has been applied to liquid blood, and it's travelled through the air and deposited, um, on the surface of that shoe.

Q: Are you able to say anything else about it?

A: Ahh, it's directional. So, um, it was deposited on an angle, but that's about it.

293 In re-examination Ms Psaroudis was asked in relation to how the blood got to the upper part of the left Nike TN runner:[417]

Q: You were asked why you didn't test any of the other samples on that shoe, and gave evidence, 'we don't test every single stain'. Can you explain to us why?

A: We have a limited number of resources. If we were to test every stain in every case, we would basically run out of money to do other cases. So, um, we sample in 'in order to answer questions in the case'. So we are posed with questions, and we conduct sampling in order to answer to questions, and once we've answered or potentially answered those questions, umm, we stop, and it's - then we put the onus on - on the investigator to, ahh, pose further questions, um, and to suggest further testing because we don't have all the information in the case. Umm, the investigator, does.

294 Ms Psaroudis was also provided with a number of other evidentiary items and relevantly found:

(a) blood likely to be the deceased's blood was found on the outside of a right black running shoe, and DNA likely to be PM's DNA was found in the insole of that shoe;[418]

(b) DNA likely to be the deceased's DNA was found on the outside of Ms La Rocca's car;[419] and

(c) DNA likely to be AM's DNA was found on the outside of Ms La Rocca's car.[420]

295 Fingerprint expert Dunn[421] examined a number of pieces of evidence in this case, including Ms La Rocca's car (registration 1ON-1OW), the stolen and burnt-out Mazda (registration 1RY-9WJ) used in the attack, and the Holden Cruze (registration 1FZ-6ZG).[422] Dunn utilised fingerprints from the deceased, SY, JA, DM, AM and PM for the purpose of fingerprint comparison.[423] Fingerprint evidence, like DNA evidence, is circumstantial evidence and must be considered in light of all other evidence in this case.

296 After completing his examination, Dunn relevantly concluded that DM, AM and JA's fingerprints were present on the Holden Cruze, and AM, SY and PM's fingerprints were present on Ms La Rocca's car.[424] In his oral evidence, Dunn confirmed that the damage done to the Mazda was so extensive that he was unable to identify any fingerprints on it.[425]

297 A key issue in SA, QM and DM's trials is whether they can be identified in the CCTV footage of the attack. The prosecution submits in the CCTV footage SA can be identified as male 8, QM can be identified as male 2 and DM can be identified as male 3, beyond reasonable doubt.

298 The evidence relied on by the prosecution does not fall within the meaning of identification evidence as contemplated by the Evidence Act and the Jury Directions Act. The evidence in this case requires me to compare a number of individuals, items of clothing and other aspects of appearance to satisfy myself about who is depicted in the CCTV footage of the attack and other audio-visual materials. I accept that I must be very careful in comparing images and that CCTV footage, videos and stills can distort the lighting and the way a person or their clothing appears.

299 In making my comparisons and identifications below I have borne in mind the risks of simply accepting a suggested narrative. For example, it cannot be assumed that if I can see person X in one image, a person with a similar complexion, stature or clothing in a later image is or appears to be person X. As a result, I have carefully and closely considered all the relevant evidence with an open mind when making any comparisons or identifications of individuals.

300 The task I have undertaken is in part an impressionistic exercise. After a careful and considered analysis of all the relevant exhibits - particularly the visual exhibits - I have formed an impression of what I can conclude from the CCTV footage, factoring in any limitations such as lighting and image quality. I have done my best to articulate the basis of these impressions in these reasons.

301 I will now turn to my analysis of whether the prosecution has established, beyond reasonable doubt, that each of SA, QM and DM are individuals depicted in the CCTV footage attacking the deceased.

302 The prosecution points to the apparent likeness to certain individuals in the CCTV footage. A variety of pieces of circumstantial evidence are then said to reinforce these assertions. The circumstantial evidence includes post-offence conduct which the prosecution also relies upon as implied admissions in the Incriminating Conduct Notice.

303 SA, QM and DM each contend that the prosecution has failed to establish - beyond reasonable doubt - that they are depicted in the CCTV footage. They dispute that they can be identified in the CCTV footage based on the circumstantial evidence relied upon by the prosecution, including their clothing and appearance. While I keep in mind that each accused is facing a separate trial, they each advanced a submission that there remains reasonable doubt about their identification as participants in the attack on the basis that:

(a) it is open on the evidence to conclude that more than one car travelled from Tarneit to Reservoir in the early hours of 13 March ('the second car theory'); and

(b) the prosecution has not excluded a number of other suspects who are just as likely to be depicted in the CCTV as SA, QM and/or DM.

304 I will commence by considering the CCTV footage and the extent to which I accept or reject that each accused can be identified. I will then analyse the other evidence relied upon by the prosecution which it says supports a finding that each accused is depicted in the CCTV. I will then consider whether - as each of SA, QM and DM contend - there remains a reasonable possibility that they were not involved in the attack on the deceased.

305 The CCTV footage of the attack on the deceased depicts eight assailants, which I have referred to as males 1 to 8 in the order they first appear on screen. For the purposes of the trials of each of SA, QM and DM I am satisfied that:

(a) Male 1 is SY. This can be readily concluded as:

• a comparison of his image from stills obtained from CCTV and video footage shows a strong resemblance between him and male 1;
• the clothing he is wearing in the hours before the attack have identifiable attributes which reflect the clothes worn by male 1;
• his phone travelled to the Reservoir area and a Snapchat video taken in Keilor East shows he is in the company of others involved at 2:09am on 13 March;
• his phone is unlocked and using Snapchat at 2:29:35am when male 1 appears to be taking a photo of the deceased; and
• his fingerprint is identified as being located on Ms La Rocca's car which was parked at the crime scene and male 1 can be seen touching the car in the CCTV footage.

(b) Male 4 is MM. This can be readily concluded as MM, like male 4, has a distinctive solid build as seen in the CCTV footage at McDonald's and at QM's home. Furthermore:

• throughout 12 March, MM can be seen wearing a surgical mask just as male 4 can be seen wearing;
• male 4 can be seen wearing the same clothing which MM is wearing throughout 12 March - a grey tracksuit set with white stripes down the arms;
• MM is one of the individuals earlier seen leaving QM's home with another individual armed with a knife and approaching the awaiting hatch; and
• MM can be readily identified in the vehicle in the 2:09am Snapchat video from SY's phone,[426] which is taken in Keilor East, consistent with him travelling to the northern suburbs with SY and others.

(c) Male 5 is JA. That he is one of the attackers in the CCTV footage of the attack is an agreed fact in SA and QM's trials,[427] while it can be concluded in DM's trial as:

• JA has a distinctive appearance and clothing. He is wearing a bright hat with hair protruding, a tracksuit with a distinct emblem on the chest and legs and a hat with a LA motif; and
• JA is readily identifiable on the CCTV footage of the attack.

(d) Male 6 is PM. This can be readily concluded as PM like male 6 has a distinctive build. Furthermore:

• his clothing, particularly the Champion logo on his top is visible throughout 12 March, on male 6 and in the CCTV from Brown's Corner Hotel shortly after the attack on the deceased;
• his fingerprints are identified as being on Ms La Rocca's car which was parked at the scene and male 6 can be observed leaning on the vehicle; and
• DNA from the deceased was found on his shoe following the attack.[428]

(e) Male 7 is AM. This can be concluded based on:

• his recognisable appearance throughout 12 March and in the CCTV from QM's home, including wearing a satchel bag and a hat with hair protruding; and
• his fingerprints are identified as being on Ms La Rocca's car which was parked at the scene and male 7 can be seen touching the vehicle.
• DNA evidence found on the outside of Ms La Rocca's car.[429]

306 Accordingly, only the identities of males 2, 3 and 8 remain to be determined in each accused's trial.

307 While of little weight of its own, the fact that SY, MM, JA, PM and AM were involved in the attack is circumstantial evidence making it more likely that the accused were also involved in the attack. This is because it can be readily found on the evidence that each of SA, QM and DM associated with SY, MM, JA, PM and AM at various points on the 12 and/or 13 March.

308 I will now turn to the prosecution's contention that SA, QM and DM can be identified as males 8, 2 and 3 in the CCTV footage.

Clothing and apparent likeness between SA and male 8

309 SA denies being present and denies being male 8 in the CCTV footage.

310 As set out, there was a large volume of audio and audio visual materials exhibited in this trial of the movements of the four accused and MM, PM, AM and JA on 12 and 13 March. I make the following observations about SA's physical appearance as at 12 and 13 March.

(a) of African appearance;

(b) of thin build;

(c) with dark hair in braids, some of which are at the front of SA's hairline and come down at the sides of his eyes; and

(d) a slender face.

312 I will now set out my observations of the exhibits which I have primarily relied on for the purpose of determining whether or the extent to which SA can be physically identified as male 8, independent of any other circumstantial evidence. This exercise will necessarily require some repetition of information set out above.

313 In a Snapchat video from SY's phone taken at 3:55pm on 12 March from inside a Mazda, the steering wheel logo of a Mazda is clearly visible.[430] AM is driving with MM in the front seat. In the rear of the vehicle, I identify four people: SA, DM, SY and PM. SA has a ski mask on (pulling it down at one stage in the clip to use what appears to be a vape) and black puffer jacket.

314 Around 4pm on 12 March, a group of African youths gather at the McDonald's restaurant in Riverdale Shopping Centre, Tarneit. All eight of the accused can be seen in this footage. SA admits that he is present at McDonald's and his phone connects to the McDonald's Wi-Fi at 6:38pm.[431] SA can be clearly seen in the CCTV footage at McDonald's and KFC throughout the day and into the evening of 12 March. In the footage SA can be seen wearing black track pants, a black puffer jacket with a hood and a rectangular shaped logo or emblem on the left upper arm and a square shaped logo or emblem on the left upper chest. He has black pants and black sneakers with a white band at the bottom of the shoes. At times SA can be seen wearing a black ski mask or open balaclava.[432]

315 At 2:14pm a video is captured on SY's phone showing SA,[433] and at 2:24pm a photograph is captured on SA's phone.[434] Both pieces of evidence show SA sitting in the front passenger seat of a car in a black loose-fitting T-shirt with white writing on the chest area.

316 At 5:25pm a video is taken at McDonald's by QM on QM's phone.[435] The footage is of QM and SA. They are vaping and singing lyrics to rap style music. SA is wearing a black beanie, and he has two braids falling out of the beanie.

317 In the KFC footage at 7:40am, SA along with QM, SY, DM, MM and JA are seen going to KFC at the Riverdale Shopping Centre. SA is wearing:

(a) the same black puffer jacket with a rectangular shaped logo or emblem on the left sleeve and the square shaped logo or emblem on the left front upper chest of the jacket;[436]

(b) a black top protruding below his jacket;

(c) black runners with a white band at the bottom; and

(d) a black beanie with one of his braids falling out.

318 SA has his hood up initially but later can be seen with his hood down and beanie on. In this footage QM can be seen wearing an orange Nike Tech jacket.

319 At 8:50pm on 12 March, the Mazda with the licence plates visible pulls up at the McDonald's at the Riverdale Village Shopping Centre. QM exits from the rear passenger side. He is now wearing a black jacket with a rectangular logo on the left upper arm and another logo on the left upper chest which bears close similarity with the jacket SA was previously wearing. QM is also wearing a ski mask, black pants with a Champion logo on the right leg, a white shirt protruding underneath his jacket and bright orange distinctive headphones.[437]

320 It is at this point in the Mazda you can observe someone in the front passenger seat putting on an orange top. The footage is not clear enough to identify who is putting on the orange top. SA's phone at this point is connecting with the towers in the area and in his record of interview, SA admits to previously wearing QM's black jacket.[438]

321 At 8:59pm and 9:02pm, SA creates images on his phone - selfies - wearing an orange Nike Tech jacket slung over his shoulders and underneath it he is wearing the same black T-shirt with the white markings on the chest shown in the videos and photographs taken at 2:14pm and 2:24pm.[439] This evidence is entirely consistent with the inference that it was SA putting the orange Nike Tech jacket on in the front passenger seat in the stolen Mazda from the CCTV footage approximately 10 minutes earlier.

322 Then at midnight in the 'spider monkey [SA Nickname]' video,[440] SA can be clearly seen wearing the orange Nike Tech jacket and a ski mask or open balaclava. The phone location puts SA at the Moorookyle Country Club in Tarneit.[441] In the 'spider monkey [SA Nickname]' video, SA's black runners with a white band at the bottom can be clearly seen. His braids are completely covered by the ski mask or open balaclava. The orange Nike Tech jacket has distinct pieces of fabric forming a 'V' on the front of the jacket and two cords coming out of the hood of the jacket. The black Nike branding can be seen on the front of the jacket. Nike Tech jackets are distinctive by reason of the markings and style. However, as has been noted, there was evidence that Nike Tech jackets, in a variety of colours, were regularly worn by SA's associates.

323 A series of CCTV clips taken from QM's home in Amsterdam Ave, Tarneit were tendered by the prosecution.[442] Relevantly, before the Court is CCTV footage of three individuals, said by the prosecution to be AM, MM and relevantly SA. At 12:54pm three people can be observed walking across the driveway of QM's home to the front door of the house and then entering the house.[443] MM and AM are clearly identifiable in this footage. The third person, said to be SA by the prosecution, can be seen walking to the front door wearing a Nike Tech jacket and an open faced ski mask.

324 The footage is granular and in greyscale. The individual said to be SA has one braid falling out from the ski mask. There is a strong similarity with photo 131 contained in Exhibit P45 and Exhibit P74 which shows SA wearing a beanie at McDonald's and his braid falling out of it. The individual's build is thin and underneath the Nike Tech jacket is a long T-shirt. There is one point where the grainy image of the individual's face can be seen. The person has a slender face. This is when the individual said to be SA is holding the door open.[444] The facial image of this person is not sufficiently clear to be able to say with certainty that it is SA. However, the clothing and build bear a stark similarity to SA.

325 At 1:38am CCTV footage shows four individuals leaving the Amsterdam Avenue residence.[445] The prosecution submits that these four individuals are SA, AM, MM and QM.[446] SA is said to be the first person that exits the front door at 1:38am. This person is holding a phone, and the backlight display is on as he exits the front of the house and starts to walk across the driveway.

326 The prosecution points to this being the exact time that SA's Cellebrite records confirm his screen backlight display is activated. [447] The person has a phone in his right hand and in his left hand a large knife can be seen. The quality of the footage is grainy and specific facial features of the first person exiting the house are difficult to see. However, the individual has a thin build, is wearing runners with a white band at the bottom, a ski mask, and their T-shirt is long and protrudes from underneath their jacket. While the Nike Tech jacket design cannot be clearly seen on this footage, the fit of the jacket is remarkably like the fit of the jacket seen on the previous images of SA in the 'spider monkey [SA Nickname]' video.

327 I am satisfied, particularly having regard to exhibits P34 and P36, that SA is shown entering the Amsterdam Avenue residence at 12:54am with MM and AM, and that he is the first of the four to exit at 1:38am. I consider there are such significant similarities to SA's build and features and the clothing he was wearing to conclude that SA can be identified.

328 I now move to the CCTV of the attack on the deceased.[448] The prosecution submits SA is male 8, the last to reach the deceased. It is clear that male 8 in the footage is wearing clothes that are so similar that it is inescapable to conclude that they are the same clothes as those worn by SA when he arrived and then left from the Amsterdam Avenue residence, approximately 40 minutes earlier. I have compared items 134 and 136 of the chart of accused persons prepared by the informant.[449] These items are photographic stills from footage at the Amsterdam Avenue residence,[450] and from the CCTV footage of the attack.[451] Both stills provide a clear picture of the individual's physical build and clothing. I consider the similarities between the two photographs is striking. There is a striking similarity in the physical build, the manner the clothes fit and the clothing itself. Male 8 is wearing a Nike Tech jacket; his shirt protrudes from underneath the jacket at the same length as is seen in the photograph taken from the Amsterdam Avenue residence; the shoes have the same white band at the bottom; and in both photographs the individual is wearing loose-fitting track pants and a ski mask.

329 Later in the morning on 13 March at 10:20am, SA takes a selfie while wearing the orange Nike Tech jacket with his braids loosely around his face.[452]

330 The stills and footage of the attack and from the Amsterdam Ave residence have their limitations. The informant gave evidence that there are a number of variables which can impact how clothing looks on greyscale or infrared CCTV footage.[453] There was evidence that the CCTV cameras from both locations were not tested.[454] However, there is no evidence that the cameras were defective and it is clear that they were functioning at the relevant time.

331 The images do not provide a clear image of SA's face. However, distinctive features such as the Nike Tech 'V' branding on the front of the jacket, the thin build and the slender face are compelling evidence that the individual in the Amsterdam Avenue footage (found to be SA),[455] and male 8 in the attack CCTV footage of the attack, are the same person. The striking similarity in the clothing, the build and physical features point strongly to the conclusion that, on this evidence alone, the similarity is so significant that SA is male 8 and he is also the person leaving Amsterdam Avenue, at 1:38am with a large knife in his hand.

332 However, the prosecution must establish beyond reasonable doubt that SA is male 8 and, as SA submits, there are limitations with the CCTV footage. Accordingly, it will be necessary to consider the other circumstantial evidence relied upon by the prosecution.

333 That circumstantial evidence relied on by the prosecution which I will consider further below includes:

(a) the telecommunications evidence and contents of SA's phone;

(b) HP's evidence and recordings (particularly that '[SA Nickname] is coming' to pick her up from the party);

(c) the evidence that, on 14 March, TH told police that SA was one of those who confronted him shortly before the attack on the deceased, pointing him out in a photo on Instagram; and

(d) SA's post-offence conduct including: internet searches and visits; enquiries about obtaining an Australian passport; rap lyrics in the notes of his phone; the phone calls with QM while QM is in custody; and the lies in his record of interview.

Clothing and apparent likeness between QM and male 2

334 The central fact in issue in relation to QM is identification. QM denies being present and denies being male 2 in the CCTV footage (the second male out of the car).

335 As with SA I have considered the large volume of audio visual materials exhibited in this trial for the purpose of this analysis.

336 Having viewed the videos and stills of QM on 12 and 13 March, I make the following observations about QM's physical appearance at the relevant time. He is a young teenage male:

(a) of African appearance;

(b) of thin build;

(c) with dark curly hair;

(d) with a wide nose; and

(e) with full lips and dark eyes.

337 QM does not deny his identity or presence up to and including 12:38am on 13 March in the various exhibits.[456]

338 There are numerous exhibits of QM throughout the day of 12 March at McDonald's and KFC at the Riverdale Shopping Centre, Tarneit taking selfies and making videos. QM is distinctive looking and readily identifiable in the group of young people he is seen with throughout the day and evening. Apart from his individual physical features, he is repeatedly seen wearing or carrying distinct red headphones,[457] a cross-body satchel bag and he wears a large watch on his left wrist.

339 QM appears to change his jacket or top twice on 12 March. At 5:25pm a video is taken at McDonald's on QM's phone,[458] where QM and SA can be seen clearly. QM is wearing a black and white jacket and has his red headphones. His large black watch is visible. QM and SA are listening and singing to rap style music together.

340 In the internal CCTV footage from McDonald's between 5:25pm and 5:35pm,[459] QM is initially seen wearing a black and white jacket and subsequently swaps that jacket with AM who gives QM an orange Nike Tech jacket. QM can be seen in a white singlet top before he puts the orange Nike Tech jacket on and hands the black and white jacket back to AM. At approximately 5:30pm a white top can be seen under QM's orange Nike Tech jacket, consistent with the white singlet top he was just seen in.[460]

341 QM comes and goes into McDonald's and KFC throughout the afternoon. QM returns to McDonald's at approximately 8:50pm in the Mazda. As already discussed, the Mazda's licence plate is visible. QM exits from the rear passenger side of the Mazda and can be seen entering McDonald's wearing a black puffer jacket with a square shaped emblem or logo on the front left chest of the jacket and a rectangular shaped logo or emblem on the left sleeve.[461] I consider that the jacket is identical to the black puffer jacket previously worn by the person said to be SA.

342 In addition to the black puffer jacket, at this stage QM is wearing a ski mask, black track pants with a Champion logo on the left leg and black sneakers. The white top can be seen protruding from under the black puffer jacket. QM is also wearing a large watch on his left wrist, a black cross-body bag and the red headphones.[462]

343 Towards the end of the internal McDonalds' footage, QM can be seen walking into McDonald's and pulling his ski mask down to eat. QM's face is visible at this point.[463]

344 At 12:38am on 13 March, QM returns home to Amsterdam Avenue, and is clearly captured on the CCTV footage as he enters the house.[464] He is wearing the puffer jacket with the drawstrings around the chin, the logo or the emblem is just visible on the left chest of the puffer jacket. The sneakers he is wearing appear in the CCTV to be black on the sole with white around the laces.

345 Despite limitations in CCTV quality, I consider that the puffer jacket observed in the 12:38am footage is the same black puffer jacket that QM was wearing at McDonald's during the evening of 12 March. It fits QM in the same manner and the same emblem or logo on the left chest can be observed.

346 At 1:38am the CCTV footage at the Amsterdam Avenue residence shows four people exiting the house.[465] I have already discussed the first individual and concluded that it is SA. Individuals 3 and 4 are readily identifiable as MM and AM. The last person to exit the front door is said by the prosecution to be QM. There is no facial image of the fourth individual as they are exiting the house. What can be observed is a male, holding a phone with the screen visible. I will return to the phone but for context, the prosecution submits that the background screen that is visible can be matched to a screenshot of the background on QM's phone taken later on 13 March.[466] The fourth individual is wearing a puffer jacket with drawstrings and a square shaped emblem or logo on the left upper chest and rectangular logo on the left upper arm, exactly like that worn by QM when entering the house at 12:38am. The individual is also wearing a black ski mask and what appear to be black and white sneakers. The individual's build is consistent with QM's thin build. A light coloured shirt can be seen protruding from beneath the black puffer jacket.

347 I am satisfied that the fourth person leaving the Amsterdam Avenue residence at 1:38am is QM. The clothing is a near identical match, as is the build and gait. On this evidence alone, I am satisfied that QM is the fourth person exiting in the footage.

348 I now turn to the CCTV footage of the attack on the deceased.[467] Male 2 is wearing a puffer jacket with drawstrings, with a rectangular shaped logo or emblem on the left sleeve of the puffer jacket and a logo or emblem on the left chest of the jacket;[468] a black ski mask; Champion brand track pants with the logo on the left leg; a white shirt protruding from under the puffer jacket; black and white runners; and is wearing a large watch on the left wrist.

349 After the attack on the deceased has ended and all the assailants have moved out of frame, the Mazda returns from an easterly direction and an individual (who I consider to be male 2) exits the Mazda and has their phone torch on over the deceased. The individual is wearing a puffer jacket with an emblem on the left sleeve, the long drawstring from the hood can be seen, they are wearing a large watch on their left wrist and the Champion logo can be seen on the left leg. This Champion logo can be seen when the individual approaches the deceased and appears to kick him. The individual is wearing black and white sneakers, also visible when the kicking takes place. All of this is visible because the car headlights which I consider are from the Mazda illuminate the deceased and the individual.

350 The individual who returns has a build and clothing identical to that of QM in the Amsterdam Avenue footage less than an hour before the attack.

351 I have had regard to the limitations of the CCTV footage. As noted above, there is no evidence that the cameras were defective or inaccurate.

352 While the images of QM exiting the Amsterdam Avenue premises and the CCTV footage of the attack do not provide a clear image of QM's face, the identical clothing and thin build are compelling evidence that QM is male 2 in the CCTV footage of the attack. The striking similarity and the build leads me to conclude on this evidence alone that the similarity is so significant that QM is male 2 and he is also the last person leaving the Amsterdam Avenue residence. Further, the distinctive large watch on his left wrist appears identical to the watch QM can be seen wearing in images throughout 12 March.

353 It was submitted on behalf of QM that another individual may in fact have been wearing the identical clothing to QM. Further, that the Court cannot be satisfied that QM did not exit his residence sometime after 12:38am via a back entrance and over the back fence.

354 The Court heard evidence from Stanfield that there were four CCTV cameras surrounding the Amsterdam Avenue residence.[469] Stanfield confirmed that there were two cameras covering the porch and driveway and two cameras covering the back and sides of the Amsterdam Avenue residence.[470]

355 Stanfield watched over 14 hours of CCTV footage from the four cameras and in evidence he detailed where the cameras were and what they covered. In addition, the Court received evidence of the search warrant videos taken during the search on 23 March at the Amsterdam Avenue residence and the cameras in place at the front and back of the property.[471]

356 Stanfield confirmed in evidence that the CCTV footage showed only the comings and goings captured at the Amsterdam Avenue residence after 12:38am.[472] The only people seen leaving the house after 1:38am were an older male, an older female and two children. I do not accept the submission on QM's behalf that QM may have left the property after 1:38am via an exit that was not captured on the CCTV footage. QM is clearly seen arriving at the Amsterdam Avenue residence at 12:38am and is seen arriving again at 1:42pm on 13 March, suggesting he left the residence between those two times. It is implausible to believe that QM would have tried to sneak out of the property without being seen on the CCTV footage. Further, for the reasons set out, QM's distinctive clothing and accessories are an almost identical match to the fourth figure leaving the house at 1:38am.

357 In the footage from 1:42pm on 13 March, QM can be seen walking up his driveway. He is wearing an oversized white T-shirt with the word 'Harvard' across the chest over a longer white top which protrudes underneath, black runners, his red headphones and a cross-body bag. His trackpants are grey and different to those he can be observed wearing on 12 March. As he approaches the porch his phone is on and in his hand.[473] There is no evidence to confirm where he got the clothing from.

358 It was suggested that QM could not have departed his home through the front door at 1:38am on 13 March as he did not have his headphones which are visible when he returns home at 1:42pm. However, contrary to QM's submission it is not the case that QM is 'never seen without his orange headphones'. QM does not appear to have the headphones when he first returned home at 12:38am on 13 March.[474]

359 Based on an analysis of all the footage of QM over 12 and 13 March, I am satisfied to a very high degree that QM is male 2 in the CCTV footage of the attack. However, the prosecution must establish beyond reasonable doubt that QM is male 2 and, as QM submits, there are limitations with the CCTV footage. Accordingly, it will be necessary to consider the other circumstantial evidence relied upon by the prosecution.

360 As I will discuss further below, the prosecution relies on the following evidence to establish, beyond reasonable doubt, that QM is male 2:

(a) QM's telecommunications evidence (both location data and call data);

(b) QM's phone evidence;

(c) evidence and recordings of HP; and

(d) QM's post-offence conduct.

Clothing and apparent likeness between DM and male 3

361 As with SA and QM, the primary fact in issue concerning DM is identification. The prosecution submits that DM is male 3 in the attack CCTV footage.

362 DM was 15 years old in March 2022. He is a teenage male:

(a) of African appearance;

(b) with a thin tall build; and

(c) with dark short curly hair.

363 It is uncontroversial that in the afternoon and evening of 12 March DM can be seen wearing:

(a) a distinctive blue coloured North Face brand of hoodie. The hoodie had the following features: drawstrings from the hood, a front pocket, a white broken line along both sleeves; the North Face logo on the front left chest and left back shoulder;

(b) light grey Nike brand track pants. The trackpants had the following features, a black Nike logo on the upper left thigh, a black drawstring and a black stripe on the right leg from approximately the pocket to the knee; and

(c) black sneakers.[475]

364 DM can be clearly seen wearing the same blue North Face hoodie at approximately 2:09am on 13 March in the Snapchat video taken from SY's phone.[476]

365 DM can also be observed carrying that same North Face hoodie in the morning of 13 March as he arrived at his home address with AM and PM.[477]

366 I am satisfied that DM was in the Mazda when it arrived at Isabella Way at approximately 1:40am and that he remained in the back seat of the car, as seen in the 2:09am Snapchat video. Records put the location of the 2:09am Snapchat video being taken at Keilor East.[478]

367 I accept that from the location of the 2:09am Snapchat video it is a 16 to 20 minute drive to the crime scene.[479] I observe that 19 minutes after the 2:09am Snapchat video, the Mazda arrives as the crime scene and the offending commences at approximately 2:28:25am.

368 I now move to the CCTV of the attack on the deceased. In the footage, male 3 is tall with a slim frame and slim legs. Male 3 is wearing a hoodie with the exact same broken stripe down the sleeves as the stripes seen on the North Face hoodie worn by DM during the day and evening on 12 March and in the 2:09am Snapchat video on 13 March.[480] A marking, albeit blurry, can be seen on the left chest of the hoodie worn by male 3. The marking is in the same position as the North Face logo on the hoodie worn by DM during the afternoon of 12 March.[481] Male 3 has track pants with the same distinct leg stripe on the right leg and drawstring hanging down.[482] The track pants have a marking on the left leg consistent with the placing of the Nike logo as seen worn by DM earlier.[483]

369 I consider there is a strong similarity between male 3's build and height and DM's height and build. There is also a strong similarity between the clothing worn by male 3 and the distinctive clothing DM was wearing approximately 19 minutes before the attack on the deceased began. Male 3's clothing has distinctive markings, and the location of those marks are identical to those seen worn by DM shortly beforehand.

370 There is no facial image of male 3 and the logos on any clothing are not clearly identifiable in the footage or stills taken from the attack CCTV footage. However, the hoodie and track pants worn by male 3 have markings of a similar size and in the exact position as the North Face hoodie and Nike pants worn by DM. This, in combination with the critical broken stripe along the sleeves of the hoodie and build and height, leads me to conclude that male 3 is very likely to be DM.

371 However, the prosecution must establish beyond reasonable doubt that DM is male 3 in the footage. Accordingly, it relies upon the following circumstantial evidence which I will discuss below:

(a) the DNA evidence;

(b) AG's evidence; and

(c) DM's post-offence conduct, namely his involvement in the burning of the Mazda and the lies in his police interview.

372 Before considering the further circumstantial evidence, I will turn to the topic of alternative suspects. In submissions, a number of alternative suspects were identified including ZM, SM, FI and AA. I have analysed the CCTV footage against the photographs and videos of these individuals which are in evidence,[484] as limited as they are. I have also considered other males seen in the audio-visual materials before the Court.

373 However, I do not identify striking similarities between any of them and males 2, 3 and 8, nor those in the CCTV footage from QM's home. Indeed, this exercise has reinforced subtle and difficult to describe similarities of stature and posture I perceive between SA, QM and DM and males 8, 2 and 3, and revealed some which I had not identified on my earlier viewings.

374 Nonetheless, I acknowledge that some of the similarities I have identified relate to the clothing worn by the accused earlier in the day, and not solely their appearance, build and stature. As SA, QM and DM emphasised, I have considered the possibility that other individuals were wearing the same clothes or clothes which may appear similar in the greyscale and artificial lighted CCTV footage as they had been in earlier images. I also accept that Nike Tech jackets, like those worn by SA during 12 and 13 March and by male 8 in the footage, are commonly worn by youths in the accused's milieu.[485]

375 In light of the Instagram messages extracted from QM and SA's phones, I have particularly considered whether there is a possibility that ZM is in fact male 2, 3 or 8. In doing so I have had regard to the fact that ZM was present when the Mazda was burnt and was in the company of PM, AM and JA (as well as HP and GD) on the day PM, AM and JA were arrested. However, as explained below, I consider that the content of the messages involving ZM point against his involvement.

376 I now turn to further circumstantial evidence relied upon by the prosecution to establish SA, QM and DM's identity and presence at the offending.

Other evidence relevant to the identification of SA, QM and DM

377 As discussed above the telecommunications evidence and the opinion of Dr Sorrell establishes that SA and QM's phones travelled from the Tarneit area to the vicinity of the scene of the attack in the early hours of 13 March.

378 Given QM and SA's apparent likeness to males 2 and 8, the telecommunications evidence is circumstantial evidence which makes it more likely that they are in fact males 2 and 8 respectively.

379 In addition to the cell tower data of the phone's movements, the prosecution points to other evidence obtained from QM and SY's phone extractions and call records to support an inference that they were involved in the attack on the deceased. In particular:

(a) the phone calls and other communications between QM's phone and HP make it more likely that he travelled to the Reservoir area and was involved in the attack;

(b) various phone calls between QM's phone and SA, SY and JA's phone suggest that they were in communication in the lead up to the Mazda's departure from Tarneit;

(c) QM's phone data suggests that QM's phone was on at the time that male 2 can be seen returning to the scene and appearing to retrieve something left behind; and

(d) data extracted from SA and QM's phones indicate that steps (that is footsteps) were taken by the individuals who had possession of the phone during the time that the attack occurred.[486]

380 However, QM and SA suggest that it is reasonably possible that someone else had their phones at the relevant times. In this regard they point to the evidence that the data extracted from their phones shows that the social media accounts of others, including ZM, were used on their phones. They say this demonstrates that it was not unusual for them to allow others to use their phones.

381 I reject that the evidence leaves open the possibility that QM was not in possession of his phone at the relevant times. It is clear QM had possession of his phone during the afternoon of 12 March because he used it to take videos at the McDonald's. He had possession of his phone when he arrives at his home in Amsterdam Avenue as it connects to the Wi-Fi at 12:39am.

382 I can also comfortably identify QM as one of the individuals leaving his home at 1:38am, with a phone clearly visible in QM's hand and the background which is visible and that matches the background seen in the screenshot taken on QM's phone at 4:18am on 13 March.[487] HP's evidence was that she spoke with QM during the early hours of 13 March. HP called QM's phone at 1:29am - just nine minutes before QM can be seen with his phone in his hand. That call lasts for 2 minutes and 41 seconds and then at 1:32am HP sends QM's phone a message. At 1:40am, just two minutes after QM can be seen with his phone in his hand, HP calls QM's phone with the call lasting for 2 minutes and 7 seconds.

383 Furthermore, QM appears to be using his phone in the hours after the attack to disable 'Find My iPhone', to delete and reactivate his Snapchat account and to activate an Optus SIM card. The Uber application records indicate that his phone was located at his home at 11:50pm on 13 March.[488]

384 I acknowledge that QM's phone records contain Instagram messages from ZM's Instagram accounts which include exchanges at 2:47am and 3:10am on 13 March, periods when the Mazda was likely driving back to Tarneit. SA's phone records also contain Instagram messages from ZM to DM at 12:53pm on 12 March and JA's phone records contain an Instagram message from HP to ZM from 11:23pm on 13 March.

385 However, as Stack explained, these messages could have been downloaded on QM, SA and JA's phones if ZM signed into his Instagram account and viewed the messages on the relevant device at some later time. The messages could also be on the device as a result of ZM's Instagram account remaining logged in on the Instagram application on the phone, as it will continue to download the messages in real time until the user has logged out.[489] In this regard I note that QM's phone records show that he signed into his own Instagram account through the Safari browser, rather than the Instagram application installed on the phone, at 4:59pm on 12 March.[490]

386 The mere presence of the Instagram messages in the phone extractions do not necessarily mean that ZM sent the messages from those phones nor that he had any of those phones in his possession on 12 and 13 March. Considering the other compelling evidence that QM had his phone in the early hours of 13 March, I do not accept that ZM was in possession of QM's phone at 2:47am or 3:10am that morning.

387 The contents of ZM's messages before the Court point against both his involvement in the offending and his possession of QM's phone on 13 March. SA's phone records contain Instagram messages from ZM to DM at 12:53pm on 12 March which indicate that he is at home.[491] At 2:24pm and 3:53pm on 12 March, ZM sent Snapchat messages to HP indicating that he will come and see her 'northside'.[492] HP's response at 4:17pm and 4:18pm that she was in her bed 'chilling' suggests that at that stage he had not come to see her.[493]

388 An Instagram exchange from QM's phone's extracts between ZM and an unknown account at 7:33pm on 12 March includes ZM saying 'I need my car rn bro' and 'I been stranded for ages'.[494] At the time of these messages, QM is in the vicinity of Riverdale Shopping Centre and the cell-tower data suggests his phone is also in this general vicinity.

389 While QM's phone connects to JA's hotspot at 7:32pm, just 1 minute and 24 seconds before the first message from the unknown account is received by ZM's Instagram account, there was no suggestion that ZM was at Riverdale Shopping Centre with the accused on the afternoon of 12 March. Likewise, I have not identified him in any of the CCTV footage which is before the Court. In the CCTV from KFC from 7:44 to 7:48pm, QM can be seen, nearby JA, with a phone in his possession. Accordingly, I find that ZM's 7:33pm Instagram messages, included in the extracts of QM's phone, were not sent from QM's phone but from some other device and later downloaded on QM's phone.

390 The records from HP's phone suggest that at 10:29pm on 12 March ZM sent HP a Snapchat message saying 'I feel bad baby', to which HP replied at 10:36pm saying 'you don't have to feel bad baby it's okay'.[495] During her evidence-in-chief, HP was asked about why she and ZM exchanged these messages and she gave the following answers:[496]

Q: Yeah, okay. And it's where [ZM] says to you, 'I feel bad, baby.' And you respond, 'You don't have to feel bad, baby. It's okay'?

A: Oh my gosh.

Q: Now, what does that mean?

1. Sorry. Um, 'cause I did have a conversation with him that night, actually.

Q: Yeah, okay?

A: Cringe, cringe, cringe.

Q: Okay. Well, let me ask you this so you don't have to give embarrassing evidence in case it's cringe - cringeworthy, yeah? Yeah?

A: Yeah.

Q: It's nothing to do with the events of that night that we've been discussing?

A: Um, no, it does.

Q: Something personal to you and [ZM]?

A: Yeah.

Q: It does. Okay, then. Sorry, you said it does?

A: Yeah.

Q: Okay. What did it have to do with the events of that night?

A: I told him what I witnessed, how I saw - 'cause that was the first time I've ever seen someone like [the deceased], like, pass away like that, and I was telling him, and he just said that he felt bad for me and everything.

391 I note that there is some discrepancy in the records relating to when this message exchange took place. The records state that each of the messages were 'read' at 4:16am on 13 March, however, they are recorded as having been exchanged between ZM and HP at 10:29pm and 10:36pm on 12 March. HP's 10:36pm response cannot have been sent before she had 'read' ZM's initial message. Given the manner in which the extraction data is presented, I infer that the exchange occurred on 12 March at a time that HP had not yet been involved with the deceased's death. The messages therefore could not have related to any conversation about the events of 13 March. Despite HP's answers in cross-examination, I do not consider that HP was deliberately untruthful when she gave this evidence and instead may have misunderstood what was put to her or been confused, particularly given that the cross-examination above commenced with HP being told by Counsel '[t]here's a message which you read on 13 March at 4:16 and 10 seconds am, okay?'.[497] Furthermore, I note that these messages were exchanged at 10:29pm and 10:36pm on 12 March, consistent with ZM being 'stranded' and unable to come see HP as he had planned.

392 Finally, HP's makes a telling comment at the beginning of her cross-examination about ZM and what names he went by and his phone use. HP asked Counsel - 'I have a question to ask ... I don't want to sound rude or anything, but what does it have to do with [ZM]'.[498] This was a genuine question asked by HP who appeared perplexed about why she was being asked questions about ZM - querying what relevance this had to with her evidence about the events of 13 March. HP's question is consistent with her comment at a different point when she said she did not feel any need to protect ZM[499] - that is from being implicated in the events of 13 March. I can infer, based on the date the messages were sent and HP's comments during cross-examination that the exchange relied on by counsel for QM exchanged on 12 March but read on 13 March, do not relate to ZM's involvement in the offending.

393 It was emphasised by SA, QM and DM that QM's phone extracts contain Instagram messages between ZM and an account by the name '[username]' at 2:47am on 13 March, just 15 minutes after the Mazda departs Horton Street and five minutes after the video is taken on QM's phone from the driver's seat of the Mazda as it drives on the Western Ring Road. As set out above these messages are as follows:

394 The reference to SA having 'capped' was explained to be a reference to him lying and 'scooped tuckies' was said to mean 'picked up girls'.[500]

395 It was submitted that these messages suggest that ZM was involved in the attack and that SA had lied in that he had not joined him in the attack but instead may have gone in another car to pick up HP and GD. However, it is equally explainable as SA not picking ZM up as arranged but instead SA having travelled in the Mazda to Reservoir to meet HP and GD.

396 During those messages, at 2:47:56am, HP calls QM's phone with the phone call lasting 56 seconds. None of ZM's messages above were sent during this time. Nonetheless, as discussed below, I do not accept that HP was speaking to ZM at this time.

397 Later at 3:10am to 3:12am, there is another Instagram conversation between ZM and an unknown account from the extracts of QM's phone. The person tells ZM 'I need someone to speak to at least' and 'I just need to rant I haven't told anyone about this shit'. ZM's only reply is 'Go on snap'. This conversation occurs two minutes after the completion of a phone call from HP to QM's phone of 25 seconds. It is also seven minutes before QM disables his 'Find My iPhone' account and 15 minutes before he deletes his Snapchat account.

398 From 5:04am to 6:11am ZM and HP exchange Snapchat messages.

399 The final of ZM's Instagram messages from 13 March which are in the extracts from QM's phone. They are messages he sends to an unknown account. At 7:39pm he says '[R]' and 'I'm coming ur crib Rn' and at 7:46pm he sends two further messages which the records show there is no message content to display.

400 Later that evening, HP and ZM exchange innocuous messages on Snapchat, within which photos that are not before the Court are sent. From the written content of the messages, they do not appear to relate to the attack on the deceased.

401 None of ZM's messages suggest that he was present in Reservoir at the time of the attack, nor that he was in possession of QM's phone in the early hours of 13 March.

402 Furthermore, from HP's evidence I have ultimately concluded that she spoke with QM during the phone calls she made to QM's phone on the night of 12 March, and the early hours of 13 March.

403 In her evidence HP said that ZM 'jumped from phones' and said that he probably did not have a permanent phone at the time.[501] HP also agreed that ZM would phone her and she would contact him on the number she saved on her phone as '[QM Nickname]' (QM's phone) and that sometimes she would get a phone call from [QM Nickname] and it would be ZM on the phone. HP said, 'Yeah, they all pass each other's phones around'.[502]

404 In cross-examination by QM's counsel, it was put to HP that given she had no independent recollection of who she was speaking to between the hours of 1:29am and 3:06am on 13 March, it could have been any of the boys answering the phone and discussing it with her.[503] HP agreed. She said it could have been ZM but she just couldn't say.[504] I do not accept the truth of this statement, and it is contradicted by other statements. While she acknowledged she had a conversation with ZM about the attack when discussing the messages from 12 March, set out above, I do not accept that she spoke to ZM in the hour immediately following the attack.

405 In cross-examination by counsel for DM, HP was also asked if she was lying to protect ZM and said 'Why would I protect [ZM] from that?'.[505] The manner in which HP answered this question was one of the times I accept the truth of her statement. She was incredulous at the suggestion that she was helping ZM and seemed genuinely unsure of any reason she would do so.

406 As is discussed in more detail below, in re-examination, HP was asked about her statement and why she didn't mention that she had seen '[QM Nickname]'. HP said because she could not recall seeing him.[506] HP was also asked:[507]

Q: Can I just suggest to you that the reason you didn't include seeing [QM] or [QM Nickname] in your statement is because you were either trying to protect yourself or to protect [QM]?

A: I don't know how I'm supposed to answer that.

Q: Well, the reason you left it out of your statement is because you were trying to not tell police that?

A; Well, yeah, I don't think I have to tell them anything.

Q: And the reason you didn't want to tell the police that is to protect yourself or to protect [QM]?

A: Yes, that's right.

407 Like QM's phone records, SA's phone records contain Instagram messages from one of ZM's Instagram accounts shortly after the attack on the deceased. Those records show that at 2:39am on 13 March ZM messaged an account called 'Keep it gangsta' the following messages:[508]

Y

Cunt

Answer

Or in gonna body bags u rs

I need xans

408 This is a mere 7 minutes after the Mazda can be seen leaving Horton Street after the attack. However, like the messages on QM's phone, these messages do not necessarily suggest that ZM had possession of SA's phone at this time. Given that there are ZM's Instagram messages on SA's phone at 2:39am and messages on QM's phone at 2:47am, this could suggest that ZM was with both SA and QM shortly after the attack. However, I consider the more likely explanation - having regard to the totality of the evidence - is that these messages were sent by ZM on a different device and consistently with Stack's explanation, downloaded onto QM and SA's phones later.

409 I consider it most likely that SA had possession of his phone during the attack on the deceased. SA had possession of his phone on the evening of 12 March, demonstrated by the connection to McDonald's Wi-Fi at 6:38pm and the selfies he took of himself at 8:59 and 9:02pm. SA's phone records also show that it was unlocked at 1:38am at the same time that the individual who bears a striking resemblance to him is walking out of QM's home and towards the Mazda with a large knife in his hand. I do not accept suggestions that that person is ZM. Putting to one side the resemblance to SA and TH's later identification of SA, the possibility that ZM was wearing clothes and shoes which appeared - on the greyscale CCTV - identical to those SA was wearing on the 12 and 13 March is fanciful, even having regard to the evidence that the Nike Tech jackets were common. Let alone an orange Nike tech jacket as worn by SA at midnight.[509] An orange jacket is also fleetingly seen in the 2:09am Snapchat video on SY's phone in the boot of the Mazda.

410 Furthermore, SA had his phone at 10:20am on 13 March when he took a selfie while wearing the orange Nike Tech jacket. Accordingly, the phone records and the cell tower data are circumstantial evidence which - when considered alongside the other evidence - firmly suggest that SA was in the Reservoir area at the time of the attack.

411 QM and SA (as well as DM) also suggest that the telecommunications evidence leaves open the possibility that they may have travelled to the Reservoir area in a car other than a Mazda at a similar time, but that it is others depicted in the CCTV footage. I will deal with this 'second car theory' later in my analysis.

412 In determining whether QM was male 2, HP's evidence is relevant and relied upon by the prosecution. HP's evidence is also relevant to whether SA and others from Tarneit travelled to the Reservoir area in the early hours of 13 March.

413 As already noted in these reasons, HP was a reluctant witness and gave inconsistent evidence. I have already traversed HP's evidence in detail above, and so will only refer to it where necessary.

414 HP spoke to TH at the party and gave evidence that she heard on that day about a group called H-Town and that they were a group of boys from Heidelberg.[510] However, as noted above, HP's phone records contained a reference to H-Town from before this date.[511]

415 HP knew a number of the eight accused, including QM and SA. In addition to the phone calls to QM's phone and the video's saved on HP's phone, HP agreed in her evidence that she had QM's phone number in her phone contacts and that she had SA on social media.[512] She confirmed in her evidence that she knew SA, but as '[SA Nickname]',[513] and that she knew QM, but as '[QM Nickname]'.[514] In March 2022, HP was dating ZM.[515] She saved a video from QM in the afternoon of 12 March depicting QM and others including SA mucking around at McDonald's.[516] When she was arrested on 23 March, HP was in the company of other 9ers including PM and AM.[517] I find, based on this evidence that HP is connected to the 9ers.

416 In evidence were the recordings taken at the party found on HP's phone as well as phone records confirming the following phone call exchanges between HP and QM's phones:

417 HP agreed that she was probably on the phone quite a bit to QM throughout the early hours of 13 March.[518]

418 HP's evidence about which recordings (the 1:22am recording and/or the 1:53am recording) were sent to QM was difficult to follow. HP agreed in evidence she sent the 1:22am video to QM, but could not recall exactly why she sent it.[519]

419 In relation to the content of the calls with QM after she sent him the 1:22am video, HP said that she was 'probably talking to [QM] about where I was at.'[520]

420 HP initially denied knowing there was any issue or 'beef' between TH and the 9ers but eventually conceded that she was aware potentially of some 'beef'.[521] HP could not recall if she also sent QM the 1:53am recording ('fuck the 9ers'),[522] but when asked if she had relayed TH's comments 'fuck the 9ers' to QM, HP said 'I don't think I would've told him that, if I had sent him a video', implying that she did in fact send it.[523] There is nothing in evidence to suggest that HP sent the 1:53am video to QM but her comment suggests that she recalls relaying information to QM about TH's comments that evening.

421 HP was asked about the recording made at 2:32am, and repeatedly said she did not know why she said 'God knows if I get hit by a van I'm telling you. Let the 9ers handle it'.[524] She accepted that she would have known when she made that comment that the 9ers were in the area of the party because she was on the phone to QM before that time. The phone records confirm that HP's phone call to QM's phone at 2:22:06am had a duration of 2 minutes and 18 seconds.[525]

422 During her evidence-in-chief, HP was taken to the CCTV footage from 1/23 Livingstone St, Reservoir on 13 March at 2:24am,[526] discussed above. HP initially denied ever walking towards a car or talking to anyone in a car between the time she and GD left the party and reached the crime scene.[527] After being shown the CCTV footage and played the recording from her phone at 2:32am,[528] HP agreed that she and GD were probably the two people seen walking over to the car.[529] She said she could not recall if she saw QM in the car at this point. It was put to HP that given the timing of her phone call at 2:22am to QM's phone and the arrival of the car, it was probably QM in the car at 2:24am. HP was asked by the prosecutor:[530]

Q: Well, what I suggest, [HP], is that you are talking to QM at 2:22am

A: All right.

Q: Sorry?

A: I said 'all right'. Yeah probably.

Q: You were?

A: Not that I remember. I don't really remember the night.

Q: Well, it's a 2 minute and 18‑second conversation you have at 2:22am?

A: Yep.

Q: You had your phone on you?

A: Yes, I would've.

Q: Yes. And you were using it?

A: Yes, I was.

Q: Okay. And what I suggest, [HP], is that phone call goes for 2 minutes and 18 seconds, and the end of that call coincides with you approaching that vehicle?

A: Yep.

Q: And is that because you hung up the call because [QM] was in front of you in that vehicle?

A: That would make sense, because then I did say, 'That's [QM Nickname]'.

Q: Yes. Well, that's a little later, so that's what I'm suggesting, that you hang up the phone call, you approach the car because QM is now there?

A: All right. Yeah, I think so.

Q: You agree with that?

A: Yeah I can agree with that.

Q: And when you approached the car did you look in the car?

A: I probably would've.

Q: Do you see anybody else in the car?

A: There were other people in the car.

Q: How many other people?

A: I wouldn't be able to say numbers, to be precise.

Q: Well, do your best. How many people were in the car?

A: At least five, or more.

Q: How many were in the front?

A: Just two, I'm pretty sure.

Q: What about the back?

A: I wouldn't be able to know. I didn't look into the back.

Q: Okay. When you approached that car, do you have a conversation at that point?

A: I probably would've.

Q: Do you recall?

A: No, I don't recall.

424 HP's evidence in relation to the recording at 2:32am was that she recognised that it was '[QM Nickname]' (QM) in the car and that it was [QM Nickname], with the window down, who said 'Hey, go around there? Go around there. He's dead. On my mum's life, he's dead'.[532] HP said she did not recognise anybody else in the car and when it was put to her that she was lying, HP said:[533]

I wouldn't say I'm lying because I said I knew that it was [QM Nickname] 'cause that's all I said that was - that I knew. I knew that there was other people in the vehicle, but I didn't say anyone else's name but one person.

425 HP agreed that after these events she deleted her call log.[534] When asked why, HP said:[535]

A: I deleted it because I didn't suspect that the person I spoke to had done what happened.

Q: But can you be a bit more specific? The person you had spoken to had done what?

A: I was talking to QM on the phone, and I suspect that what had happened to Declan, he had something to do with it.

Q: Now, you said in your evidence?

A: And I didn't want that to fall back on me.

Q: Okay. You were worried about getting into trouble?

A: Yes.

426 In cross-examination, HP agreed with the series of propositions that given her level of intoxication, she did not have an independent recollection of having called QM in the early hours of 13 March. In relation to recognising '[QM Nickname]' in the 2:32am recording, HP was asked if, given her level of intoxication, the fact that it was dark, that she was on the opposite side of the street and the car was moving continuously, if she could have been mistaken about identifying '[QM Nickname]':[536]

Q: Yes, okay. So considering all of those things, and, in particular, your level of intoxication, you could have made a mistake about identifying [QM Nickname], couldn't you?

A: I don't know.

Q: Well, I've just given you the list of things that might affect how?

A: Things, yeah. It's possible, it's possible.

Q: Yes, okay. And, once again, it's only because you've been shown that video that you agree with Ms Churchill that you've identified [QM Nickname] and the car. That's right?

A: Yes.

427 HP agreed in cross-examination that in her statement to police at the crime scene she did not mention she had approached a car or seen a car with someone in it that she said was [QM Nickname].[537] HP said that the reason for this was because she had no memory of it until she was shown the recording during her evidence.[538]

428 In re-examination HP was asked:[539]

Q: [HP], just one matter. When Mr Page was asking some questions, he suggested to you that you didn't put anything in your statement about seeing [QM] or [QM Nickname]. Do you remember that?

A: Yeah, I didn't stop yes.

Q: Can I just suggest to you that the reason you didn't include seeing [QM] or [QM Nickname] in your statement is because you were either trying to protect yourself or to protect [QM]?

A: I don't know how I'm supposed to answer that.

Q: Well, the reason you left it out of your statement is because you were trying to not tell police that?

A: Well, yeah, I don't think I have to tell them anything.

Q: The reason you didn't want to tell police that is to protect yourself or to protect [QM]?

A: Yes, that's right.

429 There was also evidence that HP had previously told police that it was GD using her phone to speak to QM on 12 and 13 March and that GD and QM were in a relationship and had been arguing and fighting that night.[540] HP's evidence was that she could not remember saying this to police,[541] but she agreed that GD and QM were not in a relationship.[542]

430 The defence submits that HP was intoxicated in the early hours of 13 March and that this would have impacted her ability to recall events.[543] When listening to the various recordings saved on HP's phone and viewing the BWC footage of Taylor, I do not consider HP's level of intoxication, if any, impaired her capacity to know what was happening or recall what she saw or did. HP's conversation with Mr Marcantonio and Ms La Rocca at the crime scene demonstrates her clarity of mind and an awareness of what was happening. HP asked questions to determine if it was TH who was hurt, and later decided to call QM's phone from the crime scene and deliberately lied to the police about who she was calling.

431 While aspects of HP's evidence were unreliable and even untruthful, I accept her evidence about speaking to QM in the hour before the deceased was killed. HP and QM were more than just acquaintances. She agreed that she lied to police to protect QM or herself. I consider HP was protecting herself and QM.

432 When the car stops in Livingstone Street at 2:22am, I am satisfied that HP is talking to QM, after just ending a call with QM's phone. HP's unsolicited evidence is that there were at least 5 or more people in the car. At this point in time, she has been in regular contact with QM for significant periods of time, she sent QM at least one recording from the party and she knows that TH has left the party. In HP's conversation with Ms La Rocca, captured on the 2:32am recording, HP says that TH left the party by himself and asks Ms La Rocca to confirm if the person lying on the nature strip is white. HP goes on to say that TH lived in her area and 'there were boys in this area that don't like him ...'.[544] This evidence suggests that HP knew that QM and others associated with the 9ers were in the area and there were tensions between them and TH.

433 The 2:32am recording, where HP states it is '[QM Nickname]' (QM) in the car, supports a conclusion that HP knew and recognised QM immediately. There is no hesitation when she says, 'That's [QM Nickname]'. QM's words captured in the recording confirm that he knows the deceased is dead. QM's knowledge demonstrates a presence at the crime scene because of the temporal proximity to the attack. HP's recognition of QM in the car is further supported by evidence that QM was driving the Mazda when it left the crime scene: a video is recorded on his phone at 2:42am from the driver's seat with the location recorded as the Western Ring Road.[545]

434 HP also underscores the importance of the occupants of the car fleeing the scene when she says in the 2:32am recording:[546]

I don't know. [squeals]. I just caught that on recording but who the fuck is dead...no but stop, stop, stop, stop. Those n*****s need to get out of here, but who the fuck is - we need to go help that guy.

435 HP originally identified the car QM was in as a 'black or grey sedan'[547] and 'like a four-wheel drive'.[548] HP clarified later in cross-examination that she is bad with cars, that it was a black or grey four-door car and that it 'looked like a Camry or something'.[549] Her evidence in relation to recognising the car is equivocal given her scant understanding of car descriptions.

436 Scott's BWC footage taken on 13 March from approximately 2:48am,[550] depicts HP and GD speaking to Scott at the scene. At one stage, HP can be seen opening her phone, saying she is calling her brother, putting the phone to her ear and walking away to make a call.[551] While HP is on the phone, GD speaks with Scott. Phone records tendered indicate that HP called QM's phone at 3:06am on 13 March.[552] The call lasted 25 seconds. As noted above, I find that HP's statement 'I'm going to call my brother' on Scott's BWC footage, before proceeding to call QM, is a deliberate lie. There is no evidence of a call to HP's brother at or about this time. She now knows that the deceased has been killed, is aware that QM may be implicated and is hiding the fact she is in contact with him.

437 Ultimately, I find that HP spoke with QM throughout the early hours of 13 March, she knew that QM and his associates were coming to the Reservoir area. I accept that HP recognised QM in the car shortly after the attack and that QM said the words, captured in the 1:32am recording. This statement strongly suggest that QM was present during the attack and supports an inference that he is male 2 in the CCTV footage.

The evidence of TH and his alleged recognition of SA

438 The prosecution relies on representations TH made to police officers during the investigation to establish SA's identity at the crime scene and to establish a motive for the attack. TH made representations to Taylor, Healy, Ryan and Ferguson. TH gave evidence at the trial.

439 The evidence relied upon by the prosecution includes:

(a) recordings made by HP at RA's party with TH;

(b) BWC footage from Taylor at the crime scene, in which Taylor talks to TH and attempts to gather information from him about what he knows about the incident;

(c) Taylor's viva voce evidence;

(d) Healy's viva voce evidence, regarding his attempt to obtain a written statement from TH at the crime scene;

(e) Ferguson and Ryan's viva voce evidence, regarding their attendance at TH's father's house on 14 March and their brief conversation with TH; and

(f) TH's viva voce evidence.

440 An issue in this case concerns TH's level of drug and alcohol consumption and its effects on him in the early hours of 13 March. The prosecution submits that despite his drug and alcohol use on the night, TH was sufficiently coherent when he spoke to police at the crime scene to recall the events of the night. The defence submits that TH was seriously affected by drugs and alcohol to affect his memory or capacity to recall the events on the night and that any memory he had of the events was a reconstruction based on what other people had told him happened.

441 I have reviewed the recordings taken by HP at the party between HP and TH.[553] In these recordings TH appears coherent and able to engage in conversation. TH is aware he has lost his phone and tells HP about this.

442 HP specifically asked TH if he had taken a Xanax at the party after TH says he may have taken some.

443 GD was asked whether she spoke to TH at the party and whether he appeared drunk, or drug affected. GD said TH was asleep when she arrived until the police came for a noise complaint.[554] GD recalled TH saying he could not find his phone and agrees he seemed quite anxious or worried about the fact he could not find his phone. GD was asked:[555]

1. When you were speaking with him, did he appear to you as though he was drunk or drug affected?
2. I wouldn't say 'yes', because he had woken up not long ago, so I couldn't really tell. He had looked like he had just woken up, but I couldn't say 'on drugs' or any of that.

Taylor's evidence and BWC footage from 13 March

444 Taylor arrived at the crime scene shortly before 2:45am.[556] I have reviewed Taylor's BWC footage at the scene on 13 March.[557] She commenced speaking with TH within minutes of arriving. BWC footage shows that Taylor spoke to TH for approximately 20 minutes. During their interactions he was walking, talking, coherent, Taylor was able to understand him, and it appeared to her that he could understand her.[558]

445 At the commencement of the footage[559] Taylor asks TH what happened and where is he from. TH says that he is from 'Collingwood - all my boys are from Heidelberg'. Taylor asks TH what happened here tonight, and he tells her that he left a party, was walking out to a car and 'n*****s' pulled up and asked him 'Are you [TH]? - And then bang I didn't know what happened. I just ran off'.

446 TH told Taylor that he ran away from a car and that he had lost KH and the deceased. He did not know where the deceased ran off to and when he returned to Horton Street he found police with the deceased. TH denied that the deceased was part of a gang or had any issues with people.

447 Taylor asked TH what car he saw, and he said 'I don't know. It was dark and it was black and all I could see - two people jump out of the window - and say [TH] and start chasing ... start chasing me'. Taylor asked TH 'Do you know who did this?' and TH responded, 'if I would - you would see about it. ... Legit - I came out the front door - I see someone come out that window and put their hand over the roof. That was it, all I saw. It was a black person, that's the only description.'

448 TH told Taylor that he was running because he was going to be stabbed. Taylor said to TH, 'you know what's going on - your mates ... not in a good spot right now so you may as well tell us what's happened'. TH responded, 'I'm no snitch - if I could explain - who these people were I would - it was a full car definitely, not too big - I saw a bunch of black people - I saw one with the hand and could barely - a medium size car -black matte'. TH confirmed that the car he saw was not at the party. Taylor subsequently says, 'the less you tell us, the worse it will be for you and for your mate'. TH responds, 'I'm not going to snitch'. Taylor says, 'you're not snitching, you're helping us figure out what's happening'. And TH says 'that's snitching. I don't do that'.

449 Approximately 10 minutes 35 seconds into Taylor's BWC footage, she muted the audio to encourage TH to be more forthcoming with information. Taylor said she did this in an effort to try to build trust with TH, hoping that he would reveal the identity of offenders quickly or provide information that would help the police. The audio is muted for approximately eight minutes.

450 Not long after TH has been told about the deceased's death, Healy comes over to TH and says, 'we need to know what's going on'. TH tells him 'I don't know who done it. Otherwise, I would have been telling you right now. I just saw a car pull up - black people jumped out - I ran'. TH tells Healy that he did not know why the car with the people in it turned up. He tells Healy that he does not want to talk about this stuff because 'my brother just died' and that 'I don't care about that stuff'.

451 TH is clearly distressed and emotionally heightened in the BWC footage. He is initially extremely concerned about the deceased's condition and is understandably distraught when given the news about the deceased's death.

452 I do not consider there was anything in TH's behaviours or his responses to the police to indicate a level of intoxication or drug use that affected his mental or physical capacity to understand what was going on around him. Whatever the effects were of his substance use at the party, TH had the capacity to assess his surroundings and provide police with some information. TH understood the questions being asked by Taylor and Healy and provided guarded but coherent answers.

453 Healy had contact with TH at the crime scene at 3:13am and 3:55am. Healy agreed TH's demeanour was emotionally heightened and distressed. Healy understood what TH was saying when speaking to him and agreed that TH was not always giving responsive answers to questions.

454 Healy's evidence was that there was some initial reluctance on TH's part to provide information or a statement.[560] Once he explained to TH the importance of his account to the police TH began to speak more freely and provided a narrative account of what happened.[561] Healy observed TH walking around the scene and took an initial verbal account from TH and then ushered him into a police vehicle to obtain a statement. Healy said that TH was upset because he had just been informed the deceased had died and he was reluctant about giving a statement.[562] Healy confirmed that he commenced writing a statement based on what TH was telling him, but that TH refused complete it or sign it after being told it could not be anonymous and that TH said he did not want to be a snitch. The end of the incomplete and unsigned statement recorded TH as telling Healy that, at the party, 'Me, Declan and another guy [KH] were the only ones left. The three of us leave ...'.[563] TH got out of the police car when Healy was trying to get his statement on two occasions.[564]

455 Healy confirmed that TH asked to leave the vehicle for fresh air but also to speak with people that were arriving at the scene.[565] Healy recalls TH speaking with members of a group that had arrived at the scene and that TH did that a number of times.[566] Healy said that he overheard comments made by various members of the group that had arrived on the scene and agreed that the tenor of those comments led him to believe that the people who had arrived believed they knew who was involved.[567]

456 On arrival at 12:25pm on 14 March at TH's father's home, Ferguson and Ryan had a conversation with TH in the presence of his father in the front yard. The conversation concluded at 12:37pm and lasted 12 minutes.

457 Ryan and Ferguson gave evidence that during their conversation with TH he made the following representations:

(a) he had been at a party, he had woken up, it was fucked because the boys were gone, it was just him, his cousin KH and the deceased left;[568]

(b) the males were from Tarneit and that is your only hint;[569]

(c) one of them goes by [SA Nickname][570]

(d) there were males, including [SA Nickname] in a vehicle;[571]

(e) [SA Nickname] was in the back left of the vehicle;[572]

(f) I'm 100 per cent on [SA Nickname];[573]

(g) that he thought it would only be hands;[574]

(h) when he realised that there was much more than two, he ran;[575]

(i) the other males in the car were little kids and he didn't know them;[576]

(j) he identified on Instagram a picture of [SA Nickname] as one of the people present;[577]

(k) he observed the sheer number of people coming out of the vehicle and he ran off;[578]

(l) the males were screaming his name;[579]

(m) the group was after him and that it was in relation to something 'on the block';[580] and

(n) that they were a gang called the '9' and are all from Tarneit.[581]

458 TH was asked to provide a statement and Ryan explained to him the process was such that he may be compelled to give evidence at a later stage. TH refused to provide a statement and retreated inside the house with his father when a female voice from inside the house indicated that that was the end of the conversation between Ferguson, Ryan and TH. Ferguson and Ryan said that they were no longer welcome and left at that point.[582]

459 Ryan said that when he spoke to TH on 14 March, he was able to understand him very clearly and that TH was responsive to their conversation.[583]

460 TH presented a mobile phone to Ryan with the Instagram application displayed and a photograph on an Instagram page that was '[Instagram user]', which Ryan understood was a person's Instagram page. There were two males depicted in the photograph and TH identified one of them as [SA Nickname], the person he had referred to as being involved in the attack.[584]

461 Ryan confirmed that there were two males depicted in the photo and the one he was referring to as [SA Nickname] was the male wearing the black hat with what appeared to be a SF emblem in orange writing on the front and holding headphones in his right hand.

462 Ryan said that TH held up his phone for him to look at it. Ryan did not touch the phone, but the image was on the screen and Ryan commenced photographing it as TH was showing it to him.[585] Ryan said that he made a note that during the conversation when TH showed him the photograph it was tagged as '[SA Nickname]' and an underscore on the Instagram page of the person in the black SF hat had been tagged as '[SA Nickname]'.[586] Ryan said that when he asked TH whether these males said anything or used any words TH said that they were screaming his name.[587]

463 Ryan confirmed that he was the designated note taker for the conversation with TH and that while writing his notes he used abbreviations and that on some occasions he paraphrased and on others he would not.[588] Ryan agreed that 'something on the block' was a direct quote and 'wouldn't explain why there was a beef' was Ryan's interpretation or summation of what TH said. Ryan agreed that 'that's your only hint' was a quote. Ryan said that the words 'male that goes by [SA Nickname] - I know it was him' was a quote.[589] Ryan said that he was recording words as TH was using them and it was clear to him on reviewing his notes when he was not writing direct quotes because TH was not speaking in the first person but in other cases it would be clearer to him that he was recording a quote.[590] Ryan confirmed 'the gang is called Nine. They were all from Tarneit' was a direct quote. 'I'm 100% on [SA Nickname]' was a direct quote and he was not sure if 'he was sitting back left' was a direct quote or not. Ryan said that it was clear to him from the context of the conversation that TH knew who [SA Nickname] was, and he was saying that it was 'it was [SA Nickname] who I saw'.[591]

464 Ryan agreed in cross-examination that he did not ask TH whether he had seen [SA Nickname] prior to that night or if anyone had told him that it was [SA Nickname]. Ryan said that TH said that the person who was in the photograph on his phone was [SA Nickname]. It was TH who showed them the photograph of [SA Nickname].[592] He recalled that he was surprised that TH had shown him the photograph and that he did not ask TH whether he had a photograph of [SA Nickname].

465 TH is 17 years old. He was best friends with the deceased and had known him since 2018 or 2019. During TH's evidence, the prosecution was granted leave pursuant to the Evidence Act to cross-examine him in relation to his association with HP, his identification of '[SA Nickname]' and his interactions with Ryan and Ferguson on 14 March.[593]

466 TH was a reluctant witness from the first time he spoke to the police. His reluctance could be seen by the way he gave evidence and his unwillingness to provide a statement in this matter on the night in question or the following day.

467 TH maintained throughout his evidence that he had no memory of the events on the night or his interaction with Ryan and Ferguson.[594] TH gave evidence that he took fentanyl on the night of the party. He said he had a scant memory of what was happening at the party, as he just blacked out when he was at the party.[595] TH said that he had been drinking before he got to the party and that he continued to drink when he was there. TH said he had been smoking cannabis prior to going to the party and had taken other pills.[596]

468 TH said that he needed help walking when he was leaving the party and that his cousin KH and the deceased and others helped him walk.[597] TH maintained that he did not have an independent memory of leaving the party or walking and that it was just what other people had told him.[598]

469 In relation to being chased by people after he had left the party, TH said that he did not remember the car pulling up or being chased. He did not remember the night but that he just has 'little bits'.[599] He said when the car pulled up it was dark and there was no street lighting, which is something he was told by other people.[600]

470 TH maintained in cross-examination that he did not remember seeing a face and that he was told there were two people in the front of the car.[601]

471 TH recalled being asked to give a statement on the night at the crime scene. He said that after he got out of the police car he remained in the area for a bit, and he remembered his cousins came down and that they were talking. He said that he was told that apparently while at the crime scene he jumped into the back of his cousin's car where they were 'chilling for a bit', but he could not even remember where he had been dropped off.[602] TH said that nobody was with him between leaving the scene until the police came to his dad's house.

472 TH recalled using social media in the days immediately after the deceased's death.[603] TH said that he spoke with his cousin KH and that they would text, but he could not remember if he spoke to KH on March 13 or 14 about the deceased's death.[604]

473 TH was asked in cross-examination whether one of his mates or someone who was the deceased's friend could have said 'I think this person's involved'. TH said he did not know but it was possible.[605]

474 As discussed, TH was a very reluctant witness at trial. TH repeatedly said in evidence that he was extremely intoxicated, and drug affected at the party on the night of the deceased's death and in the hours and days following, including when he spoke to Ryan and Ferguson on 14 March. TH maintained that he had no memory of the party, the incident where he was chased or speaking to Ferguson and Ryan.

475 TH's evidence at trial is inconsistent with what can be observed on Taylor's BWC footage, the recordings made by HP at the party and observations of TH by GD, Taylor, Healy, Ferguson and Ryan.

476 I consider his evidence at trial to be unreliable for the reasons set out below. TH's evidence at trial is inconsistent with what I accept he told Ferguson and Ryan on 14 March. I consider his evidence in Court to be less accurate and truthful than the account he gave to Ferguson and Ryan. As I said, it is not clear that TH was deliberately untruthful or now genuinely has no recollections of the events and the discussion with Ferguson and Ryan. In any event, I consider the account TH provided on 14 March to be an accurate and truthful account.

477 When TH spoke with police in the early morning on 13 and 14 March, the events were fresh in his memory and the circumstances were so serious and intense that his recall at that time was likely to be much more accurate and reliable than his evidence at trial. I accept TH consumed drugs and alcohol at the party and possibly earlier in the day. I do not accept that he was so drug affected that he had no memory of: the party; the incident where he, KH and the deceased were chased; or speaking to police the next day.

478 Despite TH's evidence that he had no recollection of any of those events, at trial some 20 months later, he provided specific details of the confrontation he had in Nocton Street which occurred just prior to the attack on the deceased:[606]

1. Did you see where [the deceased] went?
2. Yeah. We were running - we were all together for, like, a couple of minutes, and as we were running, everyone was running straight, and everyone just split up out of nowhere. And then that's when I looked to my left, and I seen my cousin was gone. I looked to my right, I seen [the deceased] was gone. And I was still getting chased though, you know.

479 TH was asked by the prosecutor whether anybody got out of the car, and he said, 'Well, like I said, we were exchanging some words for a bit, and then, um, I'm pretty sure the car turned back on, parked across and then, ah, that's when everything happened.'[607]

480 I have reviewed the CCTV footage which captured the interactions between those in the Mazda and TH, KH and the deceased at 2:26am.[608] There are approximately 35 seconds between when the Mazda comes to a dead stop in front of TH, KH and the deceased, and when it moves off again. A figure, TH, can be seen approaching the car and engaging with the people in the car. He and the other two figures then run out of frame. I consider given his proximity to the car he would have been able to see the people in the car. While it was dark at the time there was street lighting and the car's headlights were on, and I do not accept that it was so dark that he could not see anything.

481 TH tells the police on the night of the incident that: he was from Collingwood and 'my boys are from Heidelberg'; a car pulled up; they were shouting out his name; two black people jumped out and were chasing him; he was running because he was going to be stabbed; he saw someone come out of the window and put their hand over the roof and that it was a black person; and 'it was a full car - the car was not too big, a medium sized car that was black'. He refuses to give any further information to Taylor or Healy because he did not want to snitch. I consider TH's refusal to provide further information to the police was because he did not want to snitch, not because he did not have more information.

482 I accept that TH made a series of representations to Ferguson (as set out above) and that they were accurately recorded by Ryan. It was not disputed that TH volunteered the photograph of [SA Nickname] to Ryan and Ferguson.

483 There is no evidence, given the brevity of the conversation between TH and the two officers, whether TH had ever seen [SA Nickname] prior to that night or if anyone had told him that it was [SA Nickname].[609]

484 There are limitations to TH's identification of [SA Nickname] as one of the people in the car in Nocton Street. There is evidence that TH spoke to people, family and friends at the crime scene. TH was on social media in the days following the deceased's death. It is not clear on the evidence what information, if any, TH had about [SA Nickname] being a potential offender from other people.

485 However, TH gave a first person account of what he knew and who he identified, and Ryan records a first person narrative in his notes.[610] Ryan's evidence is that it was clear to him what were direct quotes from TH and those that were not.

486 On 14 March TH does not tell police that his identification of [SA Nickname] was based on something he was told. TH spoke in the first person about what he saw and heard on the night. He can be seen looking into the car on 13 March, engaging albeit very briefly with the people in the car and fleeing.

487 While TH was reluctant to talk to police from the outset, I consider that there was also a part of him that wanted to assist. TH was reluctant for whatever reason and clearly did not want his details or assistance to the police to be known. This is evidenced by his refusal to sign the statement with Healy upon learning that his statement would not be anonymous and his continued refusal to provide a formal statement to Ryan and Ferguson on 14 March.

488 I consider that while TH was reluctant to talk to the police on the night of the incident, he did have a memory and was able to recall what happened and was able one and a half days later to provide details to Ryan and Ferguson including that [SA Nickname] was one of the people in the car. In fact, he is emphatic about this saying he was '100%' it was [SA Nickname].

489 TH's evidence about what he heard from other people was limited. When he got out of the police car he was in the area for a bit, spoke to his cousins and friends and that eventually he jumped into the back of his cousin's car where they were chilling for a bit and then left. There is no evidence that TH was with anyone after he was dropped off and I accept TH's evidence that he was in shock and just didn't understand what was going on at that point.[611] TH recalled using social media the day after the deceased died and going to the spot where the deceased was killed on 14 March. He used Snapchat during that period. At trial TH said that he was not sure if he had discussions with other people about the deceased and that:[612]

I wasn't really talking with anyone like that. Like because there was no one that was, like very close. Like it was people that knew him - 100 per cent - but, like, I wasn't really talking much with them.

490 While there may have been others around, TH and KH are the only people who could provide information about who had approached them on Nocton Street.

491 I accept that TH would have spoken to KH after the incident possibly before he spoke to Ferguson and Ryan. TH said he did not see KH for a while and that he had been sent away by his mum for a while and did not see anyone for ages.[613] TH was specifically asked if he spoke to KH on 13 or 14 March about the deceased's death. TH said he did not remember.[614]

492 There is no evidence before the Court that TH was told by someone else who was involved in the incident or who might have been in the car. Ryan and Ferguson attended on KH on 14 March prior to seeing TH. They asked KH about the incident and what had occurred and requested him to provide a statement and account, but he refused.

493 At its highest, TH indicated that he had been told things, but he did not go as far as saying that everything he told the police on 14 March was what he had heard from someone else.[615]

494 I consider that even if TH had spoken to people about the incident on the night or following day, the circumstances and way he identified [SA Nickname] leads me to conclude that he saw [SA Nickname] [SA] in the car in Nocton Street. TH talks about the people in the rear back putting their hand out of the car, consistent with SA being in the boot or rear of the vehicle.

495 I consider that TH recognised one of the people in the car as being [SA Nickname]. This is strong evidence supporting an inference that male 8, who closely resembles SA, was in fact SA given he was in the area and involved in the confrontation with TH.

496 AG was called as a prosecution witness and gave evidence at DM's trial on 28 November 2023. Relevant to DM's alleged admission is the evidence of Herbert and a 'micro recording' of a conversation between Herbert and AG.[616]

497 Herbert gave evidence at trial. He was involved in DM's arrest from his home just after 7:00am on 23 March. DM was transferred to Werribee Police Station and subsequently interviewed with AG present. At the conclusion of the interview, Herbert allowed DM to speak with AG in private. Their private conversation lasted approximately 10 minutes. Herbert gave evidence that at the conclusion of this conversation, Herbert opened the door and saw DM and AG were visibly upset. DM was on the phone to a female who identified herself to Herbert as being DM's sister.

498 When AG left the room with Herbert, AG asked Herbert if she could view the CCTV footage of the attack on the deceased which had been shown in the record of interview. Herbert said 'Yes' and they went and sat in an interview room at the front of the police station. Herbert ran a covert, micro recording of that conversation.[617]

499 The micro recording obtained by Herbert is 21 minutes duration,[618] and was commenced at 1:10pm on 23 March.[619] The micro recording contains three separate occasions in which AG refers to the alleged admission by DM to her in the private conversation:

The one he told me after he said - after ... he just said "mum I didn't kill him, but I kicked" ... I said "who is killed". I said - he said, "I don't know because I run away".

• At 7:31, in response to Herbert identifying male 3 as DM, AG states:

Maybe, because he said, "mum, I kicked but I didn't see who killed". I said, "who is killed?" He said, "I run away".

• At 10:16, in response to Herbert explaining DM's right to say 'no comment', AG states:

Yeah because I ask him, "why you say no comment for everything?", because he said "I didn't see who killed".

500 Herbert's evidence was that AG told him that DM said to her during the private conversation that he [DM] 'kicked but didn't kill'. AG added that DM said he kicked, didn't kill and then ran away, or words to that effect.[620] At 2:27pm, Herbert attended AG's home address to obtain a written statement from her.[621]

501 In cross-examination, Herbert agreed that he did not show AG the CCTV footage again while he was at her home taking the statement and that AG did not have an interpreter available to her while taking the statement.[622]

502 Herbert's credibility was strongly challenged in cross-examination in relation to the taking of the statement. It was put to Herbert in cross-examination that he had added some of the alleged admission into AG's statement based on the micro recording.[623] Herbert denied this and in re-examination said the information contained in paragraph 6 of AG's statement was said by her and he wrote it down.[624] Paragraph 6 of AG's statement dated 23 March reads:[625]

I asked [DM] if he was a killer. He said, 'no mum'. I kicked him but I didn't kill him. I asked [DM] who did the killing, and he said he didn't know because he ran away.

503 During AG's evidence at trial, the prosecution was granted leave pursuant to s 38 of the Evidence Act to cross-examine AG. AG was also cross-examined by counsel on behalf of DM. AG's evidence and the following exhibits were tendered:

(a) paragraph 6 of AG's statement dated 23 March;[626]

(b) portions of the transcript of AG's evidence at the preliminary hearing on 9 November 2023;[627] and

(c) portions of the micro recording, at 05:35 and 07:20.[628]

504 AG gave her evidence at trial through an interpreter. She was a reluctant and mostly uncooperative and unresponsive witness. It was difficult to disentangle and understand much of AG's evidence. Not because of language issues, but mostly because AG was unresponsive and clearly did not want to give evidence. I have set out large portions of her evidence as it is necessary to properly understand her evidence and assess the reliability and truthfulness of it.

505 At the beginning of her evidence, AG indicated that she didn't want to talk about her son's arrest.[629] When pressed for details about the private conversation between her and her son after the record of interview, AG said: 'My talk with my son is something that is finished and done. I don't think it's part of something you need to ask me about'.[630] AG then said: 'I'm not prepared to repeat all that I've said between me and my son'.[631] AG clearly did not want to disclose the contents of her private conversation with DM. At the commencement of her evidence AG did not suggest that she did not remember the private conversation with DM but rather she did not want to give evidence about it in court. Following a direction by the Court to answer questions truthfully, AG was asked:[632]

What was the conversation at that point?‑‑‑I don't remember.

Q: And at that point in time, you asked him if he was a killer, correct?

A: Look, I said already that I don't want to talk about anything to do with the killing. Otherwise, if you want to arrest me, then I'm better to go myself.

Q: [AG], at that point in time, you asked your son if he was a killer, correct?

A: I said earlier on I don't want to talk about it.

507 AG continued to be unresponsive to questions. Following a further direction by the Court to answer questions truthfully, the following exchange occurred between AG and the prosecutor:[634]

Q: Yes. [AG], at that point, did you ask your son if he was a killer?

...

A: Yes. I asked him whether it was the group that has executed the killing or him. I asked that question. Yes.

Q: You asked him if he was a killer, correct?

A: Actually, you're making me [sick] and [sick] for repeating the same question.

Q: Well, can I just have a yes or no?

A: I already said of course, and of course mean yes.

Q: And did he respond to you, "No, Mum. I kicked him, but I didn't kill him"?

A: No.

Q: No, you say that he didn't say that?

A: Ah, he told me clearly that he did not do the killing, but he did not put in the kicking.

Q: Well, [AG], I suggest he did say to you that he kicked him, but he didn't kill him?

A: Ah, he said, "I'm not part of it. Instead, I runs away then", because they were going to the party. When they return and when there was fighting, what he did was the running away.

508 Portions of transcript from AG's evidence at the preliminary hearing on 9 November 2023 were put to AG by the prosecutor. AG agreed she had previously given evidence that her reading was limited and that her English was 'very little'.[635] AG said she could not remember her evidence at the preliminary hearing in relation to the making of the statement and how the police officer took the statement.[636]

509 AG said that in relation to her evidence at the preliminary hearing, that on that day she was very scared and frightened and did not remember a lot of things that were being asked.[637] AG confirmed that she had read the typed version but not the handwritten version of her statement prior to giving her evidence at the preliminary hearing.[638] AG agreed that at the preliminary hearing she made a change to her statement and that she could not recall being asked whether there were any other changes she wanted to make.

510 The micro recording was played to AG during her oral evidence. AG agreed that it was her voice on the micro recording. The prosecutor put it to AG that DM told her that he kicked the deceased.[639] AG provided a series of non-responsive answers and then said that DM lied to her, and that he did not tell her the truth.[640] AG was then asked by the prosecutor:[641]

Q: And that's the truth isn't it? That's what DM told you?

A: The voice there is truly my voice, but the message DM has told me, whether it is true or not true I'm not standing by.

511 In relation to what AG told Herbert after the private conversation with DM, she gave the following evidence:[642]

Q: And what you told police is that DM had said to you that he kicked the deceased. Do you agree?

A: Yeah, like the record showing that it is me, but I don't remember, but it might - if that's all what I put.

...

Q: [AG], it's the truth isn't it, that DM told you he kicked the deceased?

A: I will not believe and it's simple because I was not present at the time of the action.

...

Q: And you heard yourself tell police that DM told you he kicked the deceased. Agree?

A: Ah, I don't know with the way you were taking it, but DM lied to me, did not tell me the truth. What would it - how will you take that?

Q: [AG], all I'm asking you is, did you hear yourself tell police that DM kicked the deceased?

A: I - I heard it.

Q: And that's the truth isn't it? That's what DM told you?

A: The voice there is truly my voice, but the message DM has told me, whether it is true or not true I'm not standing by.

...

Q: Sorry. I'm only asking you; it's the truth, DM told you he kicked the deceased?

A: I - I don't believe if it is true.

Q: Just so I understand your answer. Are you saying that it's true he told you, but you're not sure if the statement itself is true?

A: I won't believe in the truth of it because I was not in the presence of that thing happening and I was not present how it was done. Whatever been said might have been said but I don't think that is true.

Q: Do you agree he said it?

A: What is stick in my mind a lot is that he runs away.

Q: [AG], do you agree that he said it?

A: What I give the answer no, what would be the expected answer again.

Q: [AG], do you agree DM said to you he kicked the deceased?

A: I don't agree.

Q: [AG], are you lying to protect your son?

A: I'm not lying. The law is even watching. I can't lie.

512 The same portion and additional portions of the micro recording were played to AG and she was asked again if she agreed that she told the police on three occasions that DM told her he kicked the deceased. AG was asked by the prosecutor:[643]

Q: [AG], having heard those two recordings, do you agree that you told police on three occasions DM told you that he kicked the deceased?

A: It is after we heard it sitting down with the detective, yes.

Q: And that's the truth?

A: Are you asking me whether what I said with the detective is true, or is that what DM said is true?

Q: What I'm asking you is it true that DM said to you that he kicked the deceased, and that's what you told police?

A: I - that's where I spoke with DM in the - after the interview and it was when he was requesting me to look for the lawyer. But he was saying that 'I'm not involved in the murder or in the killing because I run away'. That's what he told me.

Q: He also told you he kicked the deceased, agree?

A: Ah, the situation there might - it might be true. Might have said that, but at that time, it was very provocative situation. My mind was not stable because there was a big attack in the house where - and people were taken away. If I have said something, it might be applying to that time, and I wish I would have not spoken anything at the time.

513 It was later put to AG in cross-examination that she told the police that she thought that she saw DM kick (on the CCTV) because she thought that would help DM. She replied, 'I didn't have any thinking of that. What I was thinking through my mind is what is being said by DM that he ran away. That what I remember, but I do not have thought of that.'[644]

514 It was suggested in cross-examination that AG lied to the police about what her son had said because she thought it would help him. Relevantly:[645]

Q: So you told the policeman that's what your son said, because you thought it would help?

A: Ah, the only belief I had is not what I say. What the police know and the material from the picture will guide them. Not me. It will help them or not help.

Q: But the question I'm asking you is why you've said on the recording. And you can accept or reject it, but the reason you said it was because you thought that it would be the best thing for your son. Correct?

A: (Direct) Maybe.

(Through interpreter) Maybe.

...

Q: But you wanted him to talk. You wanted him to say he just kicked?

A: What I ask of him is that to tell the truth. If he's involved in the killing and not involved. Let him be standing in the truth. And he says he doesn't want to say anything, and that's what he told me. And I was telling him to tell the truth around them, to say what or not to say what.

...

Q: So you volunteered the information on his behalf?

A: I don't remember if that is.

...

Q: Even though he...?

A: I don't know - I use the wrong word, I don't know.

Q: I don't know. Even though he never said those words to you?

A: Yeah, what I remember from him saying is 'running away', yes.

515 Later in cross-examination AG was asked:[646]

Q: You thought the best thing was to tell the police he kicked. Yes or no?

A: Yes. Finish.

Q: But he - not finished. But he never ever said that to you? Did he?

A: Ah, like I said before in many ways, I said before I don't want to talk about this, and I said another thing before anything that I've said yes at the time, if I lied, let be.

Q: No. Answer this question. Answer it yes or no. He never said to you that he kicked him did he?

A: Yes.

...

Q: He never said it, did he?

A: I think the best answer that I give yes mean what you say to - you narrate to me is different to the answer of yes.

Q: Sorry, Mr Interpreter, sorry could you give that me again?

A: (Direct) I said yes. Yes.

...

Q: Are you saying he did say it to you?

A: No. Let me put it this way. DM did not tell me that. I said it myself.

516 While earlier in cross-examination, AG was asked the following:[647]

Q: Did you say to the police, 'I asked DM if he was a killer'?

A: Yes, I asked the question.

Q: Of DM?

A: Yes.

Q: And did you tell the police you asked the question?

A: Yeah. The police ask me, 'What did you say? What - what did you discover with your son?' And I said that.

Q: Okay. Did you say to the police. 'He said, 'No, Mum'?

A: Yes. He told me, 'Mama - ah, Mum, I did not kill'.

Q: Did he say to you, 'I kicked him, but I didn't kill him'?

A: Ah, anything like, ah, if he kick it and he did not kill. It's all of the time. I don't remember a lot. What I - what I remember a lot is that he told me that he - he runs away. That's what I remember.

Q: Did he say, 'I kicked him, but I didn't kill him'? Yes or no?

A: No.

Q: Why did you sign a statement that said he did?

A: Ah, at the moment, let me put myself - assume that I was somebody with mentally crazy.

Q: When you signed the statement with the police in your house, did you know that was in the document?

A: I did not understand lots of them.

517 In re-examination AG agreed that when she spoke to the police on 23 March she was doing her best to tell the truth. AG said her son was not happy with what she had done, in that she had spoken to the police. AG's evidence was that her relationship with DM was damaged because she spoke to the police on 23 March.[648]

518 AG was asked about whether what she told the police was true and said:[649]

Let me just say to what I say to - long ago when other lawyer was asking me if I was lying. Yes, most of the thing there, I was lying. Let it be the way to take from there.

519 The fact in issue is whether the admission was made by DM to AG. The parties' position in relation to the alleged admission are as follows:

(a) the prosecution argues that that the statement was made by DM to AG but DM revealed only his presence at the scene, not the extent of his involvement in the offending; and

(b) counsel for DM argued on his behalf that the statement was never made and that AG lied when she spoke to Herbert because she thought it would help her son.

520 AG's evidence was at times confusing, inconsistent and untruthful. For example, AG initially made it clear that she did not want to give evidence and eventually said she could not remember. In cross-examination AG agreed that she may have lied to Herbert because she thought it might help her son's case. I do not accept AG's evidence that she lied to Herbert and made up the representations for the purpose of helping her son. I consider she was being untruthful when she gave this evidence.

521 When AG was asked if she lied to Herbert to help her son in cross-examination she said, amongst other things, the following:

(a) AG denied that as she was leaving DM, the police said if she spoke to them it would help DM;[650]

(b) when asked if when she met with Herbert to watch the video she wanted to help her son, AG said that she 'did not mean to help [DM]', but what she meant to say was 'to help to get the right thing', whether her son had committed an offence or not;[651]

(c) AG was not thinking of helping her son. At the time, she was thinking that DM told her he ran away, but she did not 'have any thoughts' that telling Herbert that DM kicked would help DM in any way;[652]

(d) after having the micro recording played in cross-examination - and in particular the line where she was recorded saying 'I saw him kick' - AG said she did not think it would matter what she said, that is, 'I saw him kick', it would not have helped him. AG went on to say that the CCTV and 'everything being put there would help'. AG continued and said, 'Forget my voice but what exactly what (sic) happened there';[653]

(e) it was put to AG in cross-examination that the reason she said that her son said he kicked was because she thought it would help her son to say that. AG said, 'Why would you no excuse me and make use of the materials that you already have, that you say from the CCTV and leave me alone';[654]

(f) towards the end of her cross-examination, it was put to AG that she lied to the police officer about what her son said because she thought it would help and she said, 'Maybe';[655]

(g) AG was asked that if she thought DM was just kicking, he could not be connected to the murder and she said, 'Maybe';[656]

(h) AG answered 'Maybe' in relation to the proposition that she had lied to the police to help her son on two occasions, once directly and once through the interpreter;[657]

(i) AG was asked, 'But you wanted him to talk. You wanted him to say he just kicked'. AG said that what she asked of DM is for him to tell the truth, '[i]f he is involved in the killing and not involved, let him be standing in the truth. And he says he doesn't want to say anything, and that's what he told me. And I was telling him to tell the truth around me, to say what and not to say what';[658]

(j) AG then said she did not remember if she volunteered the information on DM's behalf;[659] and

(k) AG said she remembered DM saying, 'running away'.[660]

522 AG agreed that when talking to Herbert that she was doing her best to tell the truth. AG was concerned her son had given a no comment interview and wanted her son to tell the truth. AG's private conversation with her son was not preceded with any conversation with the police or any request or encouragement for AG to extract information from her son. AG volunteered information on three occasions to Herbert which was recorded. The micro recording demonstrates AG had a sufficient grasp of English to understand what she was saying and what Herbert was saying to her when she disclosed the information.

523 In the hours after DM's arrest by the police for murder, in an unguarded moment, I consider it is highly likely that DM told his mother he kicked but didn't kill and ran away. It is understandable that AG wanted to see the CCTV footage again to see if her son was present and if so, what he did. AG repeated that admission to Herbert on three occasions within an hour of her conversation with DM. I do not consider that AG had time or even considered manufacturing a response or lie to protect her son.

524 AG later confirms the exact same information in a sworn statement to police. As discussed, there was significant criticism made of Herbert and the way in which he took AG's statement. I accept that AG was not shown the CCTV footage at her home prior to signing her statement. An interpreter was not available. The wording of the statement clearly reflects that it was not written in a verbatim fashion in language AG would have used. However, as I have said, I consider that AG had the capacity to understand what was in the statement and was able to request changes to be made of that statement at the preliminary hearing. AG agreed that at the preliminary hearing that she had read it and agreed, on two occasions, that she did not seek to make any further changes and that it was true and correct.[661]

525 I do not accept that Herbert would have put paragraph 6 into the statement unless he was told that information or the essence of that information by AG at her home.

526 In her evidence-in-chief, AG agreed she asked her son if he was a killer.[662] She disagreed that DM told her he kicked and confirmed repeatedly in her evidence that DM told her he 'ran away'. At trial, AG continued to repeat that what stuck in her mind was that DM said, 'he ran away'. Critically, AG's unflinching evidence that DM told her he ran away implies that he was at the crime scene.

527 It is understandable that AG was desperate not to say or do anything that would implicate her son. From the very outset of her evidence, AG demonstrated a reluctance to reveal what DM had told her but agreed that parts of what DM said to her were true, that he ran away and that he did not know who did the killing because he ran away. AG sought to downplay the truth of what DM had told her, particularly the first part that he kicked the deceased. AG was in a horrendous position. After talking to Herbert on 23 March, her relationship with her son had been damaged. AG was in the unenviable position of having told police information that would later implicate her son. It is understandable that at trial she endeavoured to resile from what she had previously told police and in her evidence falsely admitted she had lied to the police on 23 March.

528 Even in her attempt to resile from what she had said, AG said in evidence-in-chief that DM lied to her about kicking the deceased, which suggests that the admission was said regardless of whether she believed it or not.[663] At trial AG queried whether DM was telling her the truth or not.[664] AG eventually agreed that DM 'might' have said he kicked the deceased:[665]

Q: He [DM] also told you he kicked the deceased, agreed?

A: Ah, the situation there might - it might be true. Might have said that, but at that time, it was very provocative situation. My mind was not stable because there was a big attack in the house where - and people were taken away. If I have said something, it might be applying to that time, and I wish I would not have spoken anything at that time.

529 At the end of cross-examination, AG was clearly distraught and wanting the examination to end. I agree with the prosecutor's description that AG appeared to be broken at this time. I consider AG's evidence that she made up what she told Herbert to protect her son was demonstrative of a mother trying to help protect her son but also bring an end to her time in the witness box.

530 I consider that DM told his mother he kicked but did not kill and that he ran away, and that AG subsequently told Herbert about what she had been told. I consider AG's evidence that she lied to Herbert to help her son is unreliable and untruthful evidence. I consider the micro recording reflects what she told Herbert to be the truth of the matter. This finding reinforces DM's identification as male 3 in the footage of the attack.

531 The evidence as to DNA given by Ms Psaroudis has already been discussed and will not be repeated here.

532 The defence submits that DM associated with some of the accused who admitted presence at the crime scene. For example, DM is seen coming home on the morning of 13 March with AM and PM. DM was associated with the Mazda several days after the attack and at the time of its destruction. The defence submits that some of the offenders left the crime scene in the Mazda and that the Court could not exclude that the blood on the shoe came from when DM was in the Mazda prior to its destruction.

533 I consider the likelihood of the deceased's blood getting on the upper section of DM's shoe from one of the other accused at any time and especially three days after the attack to be fanciful. The blood staining on DM's runners - particularly on the upper part of the runners - is consistent with DM being close to the deceased's body when he was being stabbed.

534 The only reasonable inference and one consistent with Ms Psaroudis' evidence, is that DM applied force to the deceased's body or was very close to his body when force was applied to it, resulting in the deceased's blood becoming airborne and landing on DM's shoe.

535 I will now turn to the evidence and submissions relating to the second car theory.

536 As noted above, each of SA, QM and DM argued that the evidence leaves open the reasonable possibility that males 8, 2 and 3 respectively are other individuals. In this regard they contend that it is a reasonable possibility that a second car containing other youths travelled from Tarneit to the Reservoir area. It is submitted that two cars travelled to Reservoir and the Court could not exclude the possibility that occupants of a second car stopped to the north of Horton Street and joined the attack, nor the possibility that others who arrived on foot were amongst the eight assailants captured in the CCTV footage.

537 In support of the second car theory, SA, QM and DM submit that:

(a) eight people could not have fit in the Mazda 3;

(b) the cell tower evidence does not exclude the phones travelling along the same route in separate vehicles;

(c) Ms Bacash's evidence of seeing a Ford XR6 outside her house at about 2:30am suggests that a second car was in the area and that someone involved in the attack got into it;

(d) there is evidence that the accused and their associates had access to other cars including a Ford XR6 sedan;[666]

(e) in her recording from 1:22am HP referred to [SA Nickname] 'pushing two whips' and HP and GD expected two cars to come and pick them up;

(f) HP's description of the car in which she recognised QM as the driver did not accord with the Mazda;

(g) Ms La Rocca and Mr Marcantonio initially told police they believed they heard two cars; and

(h) QM's phone records show that a search was conducted on Apple Maps for Tarneit from 60 Snapshot Drive, Coburg North at 2:33am and Stack's evidence was that the Mazda could not have been at 60 Snapshot Drive at this time given the timing of the CCTV footage taken at Brown's Corner Hotel at 2:38am.

538 There is evidence which suggests that the accused and their associates had access to other cars at various points in time, including potentially a Ford XR6.[667] I therefore accept that around 12 and 13 March, the accused and their associates may have had access to another car or cars in addition to the Mazda.

539 The Court conducted a view of a Mazda 3, the same size and dimensions as the Mazda 3 said to be used by the eight offenders. I observed the interior of the vehicle including the hatch/boot area. The eight accused as of March ranged in weight and height. The boot of the Mazda 3 is relatively deep, particularly with the parcel shelf removed.

540 While it would be a particularly tight fit, having observed the vehicle, I am satisfied that eight teenagers could fit into the car. The hatch area is compact but could fit two teenagers.

541 There is no issue that a Mazda 3 (registration 1RY-9WJ) was stolen on 10 March. That same Mazda was later found set alight near Papworth Place in Meadow Heights on 16 March.

542 At 8:50pm on 12 March the Mazda pulls up with the licence plate visible at the McDonald's at Riverdale Shopping Centre. As discussed, QM is seen exiting from the rear passenger side.

543 At 1:36am on 13 March, a Mazda with a strong resemblance to the stolen Mazda can be seen driving past the Amsterdam Avenue premises.[668] The Mazda pulls up just around the corner of Amsterdam Avenue on Isabella Way. The Mazda badge can be seen on the hatch as it stops on CCTV footage taken from 58 Amsterdam Avenue and the rear of the vehicle is visible and consistent with the stolen Mazda.[669]

544 At the same time, 1:36am, SY's phone calls QM's phone. The call has a duration of eight seconds. At 1:38am, two minutes after the eight-second call between SY and QM's phones, QM, SA, AM and MM can be seen leaving the Amsterdam Avenue premises.[670] QM and SA have mobile phones in their hands as they leave. On the CCTV footage the screen of SA's mobile phone is on. The Axiom records confirm that at that precise time the backlight and screen on SA's phone is activated.[671] On the CCTV footage, QM has his screen display activated. The Axiom records confirm that at that precise time, QM's screen is activated.[672] The evidence confirms that it is QM's screen on that display in the CCTV footage because that device then saves a copy of the screen at 4:16am on 13 March.[673] The evidence confirms that it is QM's phone in his hand as he exits the house at 1:38am with SA, MM and AM. SA has a large knife in his hand now and does not conceal it. The knife must have been visible to QM, MM and AM and the others when he arrived at the Mazda.

545 In a Snapchat video taken on SY's phone on 13 March at 2:09am, three people can be seen in the rear of what appears to be the Mazda.[674] The records put the location of the video being taken at Keilor East.[675] From the angle of the recording it appears SY is filming from his right hand side as the camera pans across taking in the faces of SY, MM and DM.

546 The parcel shelf has been removed and arms and legs can be seen in the boot area including an orange piece of clothing resembling the orange of the Nike Tech jacket worn by SA. Given the size of the boot and the Snapchat video,[676] I am satisfied that there are two people in the boot of the Mazda at this time sitting across from one another.

547 The defence submits that there are only three people in the back seat and that you could not fit four people in the back seat. The 2:09am Snapchat video does not film the driver or who might have been in the passenger seat.

548 In an earlier Snapchat video AM is driving and MM is in the front seat.[677] In the rear are SA, DM, SY and PM. The video demonstrates how four of the teenagers said to be involved in the offending, fit in the back seat of the Mazda 3. While the 2:09am Snapchat video only shows three in the back it is possible that a further occupant is out of view. It is also possible that two individuals are sharing the front passenger seat. It is not clear from the video how far back the passenger seat is positioned but from the view I consider it possible that two individuals could squeeze into this space if they so desired.

549 Based on all the evidence I accept that eight people the size of the alleged offenders could fit in a car the size of the Mazda. SA, QM and DM submit that even if eight people could fit in the Mazda, the evidence does not go far enough to place them in the car.

550 The evidence as discussed shows QM, MM, AM and SA leaving Amsterdam Avenue at 1:38am and approach the Mazda parked on the corner of Isabella Way and Tarneit Avenue. There had to be a driver in the Mazda at that stage.

551 QM and SA have agreed that JA is in that car at that point in time.[678] Phone records confirm that QM's phone connects to JA's hotspot, suggesting JA and QM are together or very close by at this time.

552 SY admits to being in the Mazda and being male 1. I have accepted this to be the case in each of SA, QM and DM's trials. The evidence places SY and SA within the vicinity of Isabella Way around this time.[679] SY's telephone is pinging off the same towers at this point in time as SA's in Tarneit.[680] There is also a phone call from SY to QM just two seconds after the Mazda is seen approaching Isabella Way and QM and SA are leaving the Amsterdam Avenue premises.

553 The last person to be identified is PM. As mentioned above, PM's identity in the CCTV footage at the crime scene is unequivocal. PM's Champion logo on his jumper is seen on CCTV footage as the Mazda drives past Browns Corner Hotel on Bell Street after the attack.[681]

554 It is submitted on behalf of SA, QM and DM that the Court cannot be satisfied that the eight accused got into the Mazda parked at Isabella Way. It was submitted that it was impossible to see the eight accused get into the car said to be the Mazda. Further, the CCTV footage shows headlights of another car said to 'flash' out of the frame. It is submitted that this is consistent with a signal from the driver of a second vehicle connected to the eight accused that they have arrived and pulled up to pick up others.[682]

555 Another vehicle can be seen driving into Isabella Way with its headlights on.[683] The vehicle is coming in the opposite direction to the parked Mazda.

556 I find the following from the footage tendered. The activity of the four teenagers standing outside the Mazda includes opening the driver back passenger door and front passenger door. One also initially approaches the boot with the apparent intention to enter the car that way. There appears to be some discussions or interactions occurring between the four that have arrived at the car and the occupants of the car.

557 The Mazda's lights come on at the 36 second mark of the CCTV footage. No one at any stage can be seen moving away from the Mazda or walking away to another destination. While the headlights obscure the vision of what is happening in the car and immediately around the car, the street view in front of the car in the direction of the other car is visible. Equally, the vision behind the car into the street is not obscured. If anyone of the four individuals or someone from inside the car had walked away towards another car or destination it would have been visible on the CCTV footage.

558 It takes 48 seconds from when the headlights obscure the vision before the Mazda moves and drives off. In total, it took approximately 1 minute and 20 seconds to get everyone in the Mazda 3 which is much longer than if they were simply getting into a car into allocated seats and not attempting to squeeze additional occupants in the car and its boot.

559 I consider any suggestion of a second car flashing its lights or parking up ahead as mere speculation. The only reasonable explanation is that the eight accused got into the Mazda.

560 Ultimately, this is supported by the CCTV footage of the attack itself. This footage shows the Mazda pursuing the deceased and after it stops on Horton Street the occupants all exit the car. Within 17 seconds all eight offenders are on the street.

561 The defence also point to the following evidence in support of the second car theory, that:

(a) HP understood SA to be coming with two cars;

(b) Ms Bacash saw and heard an individual seeking to get into a car; and

(c) that after the attack on the deceased, QM's phone conducted a search while its GPS was located on Snapshot Drive which is inconsistent with the likely movements of the Mazda given other evidence.

562 It is accepted that the cell tower evidence does not exclude the phones travelling along the same route in separate vehicles.

563 While Ms La Rocca and Mr Marcantonio each initially thought that they heard two cars outside their home, they clarified in evidence that this was based on the number of doors they heard opening and closing. These sounds are equally explainable by eight people coming and going from the Mazda during the multiple waves of the attack. Furthermore, by the time Mr La Rocca and Mr Marcantonio leave their home to investigate, the Mazda has driven away from the scene before returning when a male goes to retrieve something from the scene. However, Mr Marcantonio only ever saw one car when he comes out of his house, and he saw a person with a phone with its light on - consistent with QM hovering over the deceased with his phone torch on. Mr Marcantonio sees this person retreat to the dark coloured hatch parked in Horton Street and get in.[684] Ms La Rocca only recalls seeing one car drive off.[685] She describes the moments after the offending and that there is no-one and nothing around.

564 As the car leaves the scene for the final time, no-one is left behind. I consider that it had to be the eight offenders in the one car who then encounter HP at 2:32am. The timing of this encounter coincides with the end of the fatal attack.

565 In relation to Ms Bacash's evidence, there are other potential explanations for this evidence such as Ms Bacash being honestly mistaken of the timing of what she saw and that it was a coincidence. In relation to the GPS location of QM's phone on Snapshot Drive there was no evidence before the Court of the accuracy of the phone's GPS. The evidence is that the Mazda travels past Woolworths on Elizabeth Street away from the crime scene just after 2:32am. The phone location data tells us that the location of the phone detected is Snapshot Drive, which is behind the Woolworths. I am unable to conclude based on this evidence alone that the Mazda is on Snapshot Drive. Importantly when I consider this evidence with the totality of the evidence, I can infer that the Mazda was driving away from the crime scene towards Bell Street, whether via Snapshot Drive or Elizabeth Street.

566 Notwithstanding the above, I accept that the evidence may leave open a possibility that there was a second car, associated with the Mazda and its occupants in the area. However, I consider such a possibility extremely unlikely given the CCTV in Tarneit and the CCTV footage of the attack itself. Furthermore, even if a second car was in the area, I do not accept that its occupants were involved in the attack on the deceased.

567 Ultimately, the evidence which supports the second car theory is not necessarily productive of a reasonable doubt in my mind when it is considered alongside the other evidence. For example, SA's counsel contends that the person seen by Ms Bacash was likely AM. However, even if AM did enter a different car after the attack that would not itself alter the strength of my identifications of SA, QM and DM as males 2, 3 and 8 in the footage after undertaking the comparisons above and considering the circumstantial evidence and post-offence conduct.

568 Furthermore, the possibility of a second car does not alter my conclusion that after the attack QM was recognised by HP as the driver of the Mazda. Her identification is supported by the fact that at 2:42am QM's phone took a video of a car - the dash of which is the same as that of the Mazda - driving down the Western Ring Road from the driver's seat of a car. While HP showed some difficulties in her understanding of cars and the difference between a hatch and a sedan, there is no suggestion that the car which QM was driving after the attack was different to the car which HP and GD approached before the attack.

569 Finally, when the evidence in its totality is considered particularly:

(a) the CCTV evidence from Amsterdam Avenue, Tarneit showing QM, SA, AM and MM arrive and leave the premises;

(b) the CCTV evidence showing the Mazda hatch arrive and leave Isabella Way;

(c) the 2:09am Snapchat video;

(d) the telecommunication and phone records;

(e) the 13 minute CCTV footage prior to the deceased and assailants being seen in Horton Street;

(f) the CCTV footage of the attack, including the car arriving and eight people spilling out of the car;

(g) the CCTV footage from Bell Street;

(h) Ms La Rocca and Mr Marcantonio' s evidence of only seeing one car; and

(i) the timing of the encounter with HP - in which she positively identifies QM;

I am satisfied that the eight people who left Isabella Way in the Mazda hatch, are the same people who arrived at the crime scene and fatally attacked the deceased.

570 The prosecution relies on SA, QM and DM's post-offence conduct to support an inference that they are depicted in the CCTV footage of the attack.

571 The prosecution relies on a range of post-offence conduct as incriminating conduct. That is, as implied admissions by the accused that they committed the offence charged or an element of the offence charged. The conduct which was relied upon is set out in the Incriminating Conduct Notice.

572 I may only treat that evidence as evidence that the relevant accused believed that he committed the offence charged, or an element of the offence, if I conclude that:

(a) the conduct occurred; and

(b) the only reasonable explanation of the conduct is that the accused held that belief.[686]

573 The conduct needs to be assessed in the context of the evidence as a whole and the post-offence conduct.

574 Furthermore, even if I conclude that an accused believed he had committed the offence charged, I must still decide, based on the evidence, whether the prosecution has proved his guilt beyond reasonable doubt.[687]

575 In assessing this evidence, I bear in mind that:

(a) there are all sorts of reasons why a person might behave in a way that makes the person look guilty. In particular in this case each of the accused were young at the time of the conduct;

(b) the accused may have engaged in the conduct even though the accused is not guilty of the offence charged; and

(c) even if I think the conduct makes the accused look guilty that does not necessarily mean that the accused is guilty.[688]

576 However, I note that in relation to the present issue - SA, QM and DM's identification as participants in the attack on the deceased - the accused's post-offence conduct may also assist to establish, by inference, that they are males 2, 3 and/or 8 depicted in the CCTV footage independent of any reliance on the conduct as incriminating conduct.[689] In such a way it is used as circumstantial evidence rather than as an implied admission that they committed the offence or an element of the offence.

577 Nonetheless, at this stage I shall note that based on my conclusions outlined above I am satisfied beyond reasonable doubt that, on the admissible evidence in each of their trials, the only conclusions I can draw are that:

(a) SA is male 8, based on his striking similarity to male 8 and the clothing worn by male 8, as well as:

• his association and interactions with SY, MM, JA, PM and AM - whom I have found to have been depicted on the CCTV footage of the attack - on 12 and 13 March;
• the fact he can be seen leaving the Amsterdam Avenue residence with a knife in his hand and entering the Mazda;
• QM's communications with HP at times he was with SA, and HP's evidence that SA was travelling to the Reservoir area to pick her up;
• the presence of the orange jumper in the boot of the Mazda 3 seen in the 2:09am Snapchat video, whilst the Mazda is in East Keilor and travelling towards the Reservoir area;
• the data extracted from his phone and the telecommunications evidence supporting that he travelled to Reservoir in the early hours of 13 March; and
• TH's evidence that SA was in the car when he, KH and the deceased were confronted shortly before the attack on the deceased.

(b) QM is male 2, based on his striking similarity to male 2 and the clothing worn by male 2, as well as:

• his association and interactions with SY, MM, JA, PM and AM - whom I have found to have been depicted on the CCTV footage of the attack - on 12 and 13 March;
• his phone evidence, in particular his conversations with HP in the early hours of 13 March;
• the fact he can be seen leaving the Amsterdam Avenue residence and entering the Mazda, supported by his phone data and call charge records;
• the telecommunications evidence suggesting that he travelled from Tarneit to the area of the attack in the early hours of 13 March;
• HP's identification of him in a vehicle in Elizabeth Street shortly after the attack on the deceased;
• his phone data during the time of the attack; and
• QM's statement to HP, captured on the 2:32am recording, that 'He's round there, he's dead. Mum's life, he's dead' which I consider to be an admission that he was present at the attack.

(c) DM is male 3, based on his striking similarity to male 3 and the clothing worn by male 3, as well as:

• his association and interactions with SY, MM, JA, PM and AM - whom I have found to have been depicted on the CCTV footage of the attack - on 12 and 13 March;
• his presence in the rear seat of the Mazda 3 in the 2:09am Snapchat video, whilst the Mazda is in East Keilor and travelling towards the Reservoir area;
• his admission to his mother that he was present at the attack on the deceased; and
• the deceased's blood found on his shoes which suggests that he was a present at the attack on the deceased.

578 Considering the above, I do not accept that there remains any reasonable hypothesis that males 2, 3 and 8 are anyone other than the accused. Suggestions that males 2, 3 and 8 could be other individuals wearing remarkably similar clothing to the accused, who also happen to be in the Reservoir area at the time and participate in the attack alongside associates of the accused are nothing more than speculative.

579 Notwithstanding these conclusions, I will continue to consider the post-offence conduct of each accused and the prosecution's contention that certain conduct can be accepted as implied admissions that they committed the offence charged or an element of the offence charged.

580 I turn now to evidence of SA's conduct after the attack on the deceased.

581 In the Incriminating Conduct Notice, the prosecution identifies nine items[690] of conduct on which it relies on as incriminating conduct. I have considered those items of conduct together with the parties' relevant submissions. The Incriminating Conduct Notice has been the subject of an earlier ruling.[691]

582 As previously stated in that earlier ruling, I am satisfied that under s 20(1)(b) of the Jury Directions Act it was open for me, as the fact finder, to consider whether any or all the nine items of conduct amounted to incriminating conduct.

583 It is now necessary to consider whether the only reasonable explanation for some or all the nine items of conduct relied upon by the prosecution is that SA believed he committed the crime of murder or an element of the crime of murder or negated a defence.

Internet Searches of news and social media with respect to the incident****[692]

(a) at 10:27am on 13 March, SA saved to his phone a screen shot of the deceased's Instagram page;

(b) SA used his phone to search the internet for 'Coburg north stabbing' on 14 March at 12:56am, 16 March at 8:24am and 20 March at 3:35pm; and

(c) on 20 March, SA took a screenshot of an article about the deceased with a photograph of a letter to the deceased left at the crime scene.

585 I am not satisfied that the only reasonable explanation for the conduct is SA's belief of guilt. These items of conduct could be reasonably explained by SA's curiosity, given the nature of the attack and his association with people who might have been involved.

Setting up an AusPassport account and related searches and activity****[693]

586 On 14 March, SA set up an AusPassport account. On 15 March, he obtained a passport photo of himself. On 16 March, he used his phone to search the internet for 'my passport sign in' and accessed the Australian Passport Office website.

587 The defence submits that given his age and immaturity and his association with the 9ers - the gang who may have been involved in the offending - it is understandable that SA panicked and took the steps to obtain a passport. SA did not know the deceased and there is no evidence of any issue between SA and the deceased.

588 I do not accept the submission that SA's steps to obtain a passport were done because he feared he might be falsely accused and therefore thought he should leave the jurisdiction. The day after the deceased's death SA is taking steps consistent with him preparing to leave the jurisdiction. At the same time, he is searching the internet for information about the killing. When the steps to obtain a passport are considered together with the post-offence conduct and the evidence as a whole, I consider that the only reasonable explanation is that SA tried to obtain a passport to flee the jurisdiction to avoid apprehension for his involvement in the deceased's death.

589 The next item of conduct is rap lyrics said to be created on SA's phone in the 'Notes' application on 29 March at 7:04pm and modified between that time and 3:40pm on 1 April.[694] This was after the arrest of SA's co-accused.

590 The prosecution submits that the following meaning can be inferred from the lyrics:

Someone was got (killed) for chatting on a - talking about friend - Broski

A reference to his friend running for his life - a reference the prosecution says is to TH running after the initial confrontation

Rambo being a reference to knife - and getting excited

A reference to the fear that the attack has instilled in the ones who got away

A reference to TH running - 10 toes, two feet

A reference to the deceased being killed and not able to reply

591 The defence submits that a threshold issue is that the Court cannot be satisfied that it was SA who wrote or authorised the rap lyrics. The defence submits that the evidence establishes other people used the phone said to be SA's prior to, at the time of, and after the offending.

592 The defence points to the fact that the evidence establishes that a person named FI was using SA's phone on 1 April between 4:28pm and 7:28pm.[695]

593 The defence submits that there is no reference or evidence that the author is SA or '[SA Nickname]'. There is no reference to SA or [SA Nickname] contained within the lyrics or in the note that was created and as such the Court cannot be satisfied he was the author of the lyrics.

594 The defence submits that the prosecution's interpretation of the lyrics is speculative and that there was no evidence led to establish what the slang means. The defence submits that the prosecution wants the Court to make assumptions that suits the prosecution's case in the absence of any actual evidence.

595 The defence points to part of the lyrics being at odds with the events relating to the deceased's death.

Is totally at odds with the offending - it occurred over the space of a few minutes during the night

there is no evidence that the deceased was involved in any of the prior chatter between the rival groups. TH's evidence was that the deceased was not involved in any gang. By the time this rap is written, the 'wrong victim' story was widely known

596 The defence submits while the lyrics may be distasteful and offensive, it is a style of music that SA and others followed and tried to create themselves. The style involves posturing and gloating. The content is fictional and could not be taken as an implied admission.

597 I consider it is mere speculation that FI created and modified the note. The period in which the note was modified is earlier than when FI is said to have had possession of SA's phone. It appears on the times that FI used the phone between 4:28pm and 7:28pm on 1 April and the note was modified before that time. Based on the evidence, the strong inference is that SA had his phone and was the author of the lyrics. By 29 March, SA's co-accused had been arrested and were on remand and they could not have been the authors.

598 I accept that style of music and lyrics involves posturing and gloating. As such, caution needs to be exercised when attributing the lyrics to SA personally. In this case, the lyrics are biographical in style and written in the first person. While not a 100% perfect match with the circumstances of the offending, the lyrics capture key features of the circumstances of the offending. I consider the interpretation of the slang lyrics put forward by the prosecution is open and highly plausible.

599 The defence's submission that the Court cannot be sure about what the lyrics are referring to is simply incorrect. The lyrics are directly referring to 'DJ', the deceased's nickname, and his death. This is a distinguishing factor in these lyrics. When the rap lyrics are considered in the context of the evidence, including TH being chased by the offenders and the use of knives in the offending, I consider the only reasonable explanation is that SA wrote these lyrics based on his presence at the time of the offending, his knowledge of the actual circumstances of the killing and his participation in the attack alongside others.

600 The prosecution relies on three recorded calls from QM on 27 March and 1 April to SA.[696] These calls occurred after QM had been arrested and was on remand for the charge of murder at the Parkville Youth Justice Detention Centre. It is an agreed fact in SA's trial that the transcription of the three calls are accurate.[697]

601 There are two recorded messages from 7 March and one from 1 April. The contents of the calls can be summarised as follows:

(a) at 5:25pm on 27 March, QM whilst in custody, had his mother merge a call with SA. They discussed whether there is enough evidence, with QM saying there is not but wondering why SA had not got 'nagged' - arrested. SA replied that he felt it was because of the cameras and how he was beneath, sitting down. QM cut across him and told him to shut up. QM said that DM's sister had spoken to HP, and SA said he knows what to do then. QM told SA that he was surprised that everyone kept their mouths shut. SA said he was surprised but it made him happy;[698]

(b) at 5:38pm on 27 March, QM whilst in custody, has his mother merge a call with SA. They discussed JA's arrest with QM asking SA if he had been done for this case yet. SA said he was at home waiting until he got nagged. SA asked QM if police when arresting JA had asked where SA was, or if they had yelled his name. SA asked if HP told police that SA was there. He later told QM what he will do if he is remanded;[699] and

(c) at 6:08 on 1 April, QM, whilst in custody, had his mother merge a call with SA. SA referred to HP and GD snitching, and QM agreed. QM said he was surprised everyone kept their mouths shut and he was proud of them. SA said the only thing he was worrying about was the 'younguns'.[700]

602 I consider SA's explanation as to why he thinks he has not been arrested is a reference to not being captured by cameras - CCTV cameras - at the crime scene. By this stage, the CCTV footage had been played to a number of the co-accused during their record of interviews. I can infer that SA was most likely aware of the existence of the CCTV footage capturing the attack by this stage.

603 The defence's submission that SA's comment about sitting down or being beneath the camera during the incident ignores the fact that SA is in a squatting position or bent down position during the attack on the deceased. He may well have thought that he was beneath the view of any CCTV camera and that was why he had not been arrested. SA's comment followed by QM immediately shutting SA down is consistent with SA revealing details of the offending on the night and knowledge of what occurred. The suggestion that SA is referring to the footage at McDonald's and KFC by the defence in the context of all the other evidence is fanciful.

604 In the very same conversation, SA expresses pleasure and surprise that everyone kept their mouths shut. SA's pleasure may be for his friends but much more likely because nobody 'snitched' on him.

605 During the conversation on 27 March at 5:38pm, in the context of discussing JA's address, QM asks if SA had been 'done' for this case yet. SA's response is suggestive of, and consistent with, his resignation that it was just a matter of time until he too was arrested.

606 The conversation between QM and SA about HP reveals that the police got information about the co-accused from '[HP Nickname]', HP. SA's immediate question was, 'That bitch say I was there ...'. It begs the question as to why he would ask that if he was not at the scene or involved in the offending. SA's question in the context of the totality of the conversations between QM and SA reveals a concern about HP talking to the police about SA's involvement. Given the circumstances, it is understandable that SA would have been concerned about what HP knew and being able to identify him.

607 SA's reference to the 'younguns' reflects his knowledge that some of the offenders were young. SA was 17 and was one of the older members of the group.

608 The conversations discuss the offending, the arrests following the deceased's death, whether HP may have snitched and the fact that people, including the 'younguns' have kept their mouths shut. The conversations are in circumstances where QM has been arrested for the deceased's murder.

609 I consider the only reasonable explanation for SA's assertions in the recorded telephone calls as detailed in the Incriminating Conduct Notice[701] is that he was present and involved in the offending and knew he was male 8 in the CCTV footage.

Lies in record of interview****[702]

610 SA concedes he told the following lies in his record of interview on 6 April:[703]

(a) on 12 March, he went to Werribee Plaza to meet friends and he got the bus home by himself. He watched Batman at the movies and bought a jacket;

(b) he did not have a phone number and contacted his friends on Instagram;

(c) he was home somewhere between 9:30pm and 10pm on 12 March;

(d) he went home after 9pm and started gaming;

(e) he did not know QM's address;

(f) he said '[SA Nickname]' is somebody else;

(g) he denied phone movements were of his phone; and

(h) he denied ever being in a Mazda 3.

611 The defence submits that SA's lies are consistent with the actions of a scared, worried and panicked 17 year old. His friends and associates are involved in serious offending and SA thinks he is going to be falsely implicated in the murder because of his associations and presence with other accused earlier on 12 March.

612 The defence points to SA's surprise when he is told he was being arrested for murder. The defence submits that if SA was involved in the offending, you would expect that he would come up with a better planned alibi than what he said in the record of interview.

613 The tenor of the lies is to give a demonstrably false account of SA's movements over 12 and 13 March. The lies go to concealing his association with the other co-offenders, concealing he knew QM's home address and that he had never been in a Mazda 3 - the type of car that the assailants used to get to and flee the crime scene.

614 By 6 April, the other co-accused had been arrested, SA had conversations with QM on 27 March and 1 April confirming that SA was waiting to be arrested. He was not sure what evidence the police had against him and was concerned that HP had snitched on him.

615 I accept that SA was 17 at the time of the record of interview and may well have been scared or at least worried given he had been arrested for murder. However, SA's lies must be assessed alongside the totality of the evidence including, SA's attempts to obtain a passport and the conversations with QM on 27 March and 1 April. While people lie for a variety of reasons, I consider SA's lies, in combination with the rest of the evidence against him, demonstrates an implied admission of his guilt. I consider SA was lying because he knew that the truth would implicate him in the offending and there is no other explanation for telling of the lies consistent with innocence.

616 I turn now to the evidence of QM's conduct after the attack on the deceased.

617 The prosecution relies on 16 items of conduct by QM as evidence of incriminating conduct. I have considered those items with the parties' relevant submissions.

618 The 16 items of conduct have been the subject of a previous ruling in which I determined that each piece of evidence was admissible as incriminating conduct.[704] As such, under s 21(b) of the Jury Directions Act, I was satisfied that it was open to me as the fact finder to consider whether any or all the 16 items amounted to incriminating conduct.

619 The items in the Incriminating Conduct Notice numbered 4, 5, 6, 7, 8, 9, 10, 11 and 13 involve QM having his phone, ending 661, at the relevant time. That is, that QM had possession and was the person using the phone.

620 The defence denies QM had possession of his phone at the relevant times.

621 For the reasons set out earlier, I am satisfied that QM had possession of his phone at the said times and dates and used the phone in the manner alleged by the prosecution.

Disabling 'Find My iPhone', deleting Snapchat account and activating new SIM

(a) at 3:19am on 13 March, QM disabled the 'Find My iPhone' application on his mobile phone;

(b) at 3:27am on 13 March, QM deleted his Snapchat account associated with the email [QM Email]; and

(c) at 4:56pm on 13 March, QM activated a new SIM card on his phone.

623 The evidence shows that on 13 March at 3:19:12am, an email was received at [QM Email] from noreply@email.apple.com. The receiving email account was used by QM in March 2022.[705] The email confirms that 'Find My iPhone' has been disabled on [QM Device], and that this device can no longer be located, placed in lost mode, or remotely erased using the iCloud website or the 'Find My iPhone' application.[706] This disables the location services provided by iCloud.[707] The timing of the conduct is significant. The murder is alleged to have occurred at 2:28am and at 2:32am, QM is alleged to have told HP that 'He's around there. He's dead. Mum's life he's dead'. The evidence otherwise demonstrates that HP was informed by police of the deceased's death at approximately 3:04am.[708] At 3:06:56am, HP can be seen using her phone to make a call[709] which coincides with a call from her device to the 661 number said to belong to QM.[710] Less than 12 minutes after the end of that call, the location services on QM's phone have been disabled.

624 Four minutes later, the device received a verification code to log into the Snapchat account linked to [QM email].[711] Four minutes after that, at 3:27am, the device received an email confirming [QM Snapchat] Snapchat account (linked to the [QM Email] email address) had been deleted.

625 At 5:32am on 13 March, QM's phone is connecting to the internet wi-fi hotspot of SY's mobile device.[712] This evidence supports an inference that QM and SY were physically together at that point in time.

626 The defence submits that there is no evidence that at the time QM was undertaking these steps he was in possession of his phone. However, if the Court finds that it was QM who had control of his phone at the relevant time, it is reasonable to assume knowledge of these events spread quickly, and that QM would have been aware that his associates were involved in a serious crime and as such his phone, by virtue of communications, was a source of evidence. The defence submits that given QM's association with the 9ers, it is natural that he may delete or seek to hide his phone information to avoid detection.

627 The temporal connection between the offending, HP's phone calls to QM and the disabling of 'Find My iPhone', deletion of his Snapchat account and activating a new SIM card, provides a powerful inference that QM was seeking to avoid detection and deleting data from his phone that may connect him to the offending. I consider that the only reasonable explanation for the conduct is QM's belief that he participated in the killing of the deceased and that he wanted to avoid detection and delete any data connecting him to the offending.

(a) cessation of activity of the two applications on a mobile phone connected to QM's identity at 3:19am and 3:17am on 13 March; and

(b) activation of a new SIM card on the phone in QM's possession at 4:56am on 13 March;

are consistent with QM seeking to hide his physical movements during that time which would implicate him in the offending. The applications that were deleted were targeted to avoid detection and information he had on his Snapchat account that could implicate him in the murder of the deceased. There is no evidence that QM was concerned about detection from rival gang members or other associates. The only reasonable explanation was to delete information that could implicate him in the murder and his identification as male 2 in the CCTV footage.

Accessing articles about the offending and searching for 'Coburg news'

629 Approximately 15 hours after the attack, over a period of approximately 40 minutes, QM's phone is used to conduct internet searches and site visits for information connected to the incident.[713] I am satisfied that QM had possession of his phone during that period.

630 I am not satisfied that the only reasonable explanation for the conduct is QM's belief of guilt. These items of conduct could be reasonably explained by QM's curiosity, given the nature of the attack and his association with people who might have been involved.

Rap lyrics modified on 14 March in a note on QM's phone

631 On 14 March, QM modified a note on his phone containing rap lyrics.[714] The rap lyrics read:

He was talking up on the 9 you fucked up for goodness sakes

Like how many times how many times did I insert my blade ?

Like how many times did I do it wit hate

Had a mask on my face cause I can't be bait

Flaaco I found where u stay best not lack or we spin a renegade

My broskis way too tapped when he risee his mindy and slashing away

They said it's tit for tat so I stepped wit cro when shh got packed.

632 The note was originally created on 8 March, and it is not possible to identify the specific modifications to the note. The data only reveals the creation date and the last date of modification of the note.

633 The prosecution submits that the note, particularly the first four lines, references the attack on the deceased in the following way:

He was talking up on the 9 you fucked up for goodness sakes

Like how many times how many times did I insert my blade?

Like how many times did I do it (wit) (sic) hate

These lines refer to the stabbing of the deceased numerous times

Had a mask on my face cause I can't be bait

Refers to the mask on QM's face during the attack

634 The defence did not dispute that QM modified the note on 14 March.[715]

635 The defence submits that the rap lyrics are nothing more than typical rap lyrics that glorify violence and gangster life. The defence submits that QM is a musician performing in a rap genre and has done no more than incorporate some aspects of the attack on the deceased into the rap lyrics, in circumstances where it is safe to infer that QM knew about the offending because of his association with some of the possible offenders.

636 As mentioned above, caution must be taken when attributing the lyrics to QM personally, given the genre of music. The lyrics describing the stabbing are written in the first person. The CCTV footage of the attack shows male number 2, said to be QM by the prosecution, stabbing the deceased repeatedly in a frenzied manner. Male 2 had a ski mask on, and so did QM when he left his home at 1:38am with three others, including at least one individual carrying a large knife.

637 The rap lyrics have a specific reference to the '9', the group QM is said to be a part of or associated with. While information about the attack was available by 14 March through the news outlets, social media and people associated with QM, the specificity of the detail referenced in the lyrics demonstrates a knowledge of the nature of the attack beyond what was likely to be publicly available. The lyrics are in a narrative style and written in the first person. For example, the reference to '... how many times did I insert my blade' and 'Had a mask on my face can't be bait'. Further, the lyrics make a specific reference to the 9iners - 'He was talking up on the 9 you fucked up for goodness sakes'.

638 On the same day QM modified the note, he was trying to obtain a passport, had earlier deleted his Snapchat account, disabled his location services and searched the internet about the killing. This conduct considered alongside the totality of the evidence leads me to conclude the only reasonable explanation for the lyrics is that QM was writing about the attack, and his conduct during the attack, consistent with the actions of male 3 in the CCTV footage.

Inquiries and searches in relation to passports and overseas travel

639 On 14 March at 10:16pm, QM's phone visited the website 'passports.gov.au'.[716] This conduct occurred approximately 32 hours after the offending. It occurred after QM is alleged to have undertaking the activities discussed above.

640 The following day at 11:34am, QM's phone was used to undertake a Google search for 'can u leave the country on probation',[717] and a URL was visited at the time entitled 'travel restrictions while on probation - hg.org'.[718] Half an hour later, the application 'ID Passport Photo Maker' was purchased.[719]

641 The defence submits that by the time QM took the steps to obtain a passport, he was aware that a serious incident had occurred involving close acquaintances to him and some of the people who were at his house immediately prior to the incident. The defence submits that for an immature young man, the fantastical idea of fleeing the country would be a natural reaction reflecting his immaturity.[720]

642 Taken together with other evidence, this conduct strongly supports the inference that QM was making inquiries and taking steps about fleeing the jurisdiction to avoid apprehension by authorities, because he was aware he was involved in the offence.

Photograph of QM with words 'killers that have never been caught' overlaid

643 On 16 March at 8:15pm, an image was created on QM's phone which depicted him, with the words 'killers that have never been caught' superimposed in red text.[721] The photo is taken using the 'self-view' mode and there is no evidence that this was not created by QM using his iPhone. The compelling inference is that the words are referring to QM, as depicted, with the implication that QM is a killer and, as at the night of 16 March, had not been apprehended by the authorities for that killing on 13 March.

644 The defence submits that the evidence demonstrates that QM and the co-accused identified as members of the '9ers' and that part of the gangster image is to portray yourself as threatening and in aggressive and sinister poses. As such, the defence submits that QM's claim of being a killer that has not been caught can be seen in the context of claiming credit for violent or illegal acts, essentially basking in the reflected glory or credit for actions which he may not have taken, or to enhance or 'talk up' the reputation of the '9ers'.[722]

645 When this conduct, including the timing, is viewed in the context of the evidence and the other post-offence conduct, the only reasonable explanation for the conduct is that QM was admitting that he was the deceased's killer and as of 16 March he had not been apprehended by the authorities. In any event, this photograph constitutes compelling circumstantial evidence in the context of the other post-offence conduct.

Creating and later modifying a note in his iPhone containing rap lyrics

646 A note entry was created on QM's iPhone on 20 March at 1:03am.[723] The parties agree that the note contains the following lyrics to a rap:

Cross his name off the fuckin hitlist me my bro's gon slide let's... go

We ride wit steel Tryanna aim for the kill lotta n****s claiming gang you ain't step with my bros

Popped a perk my feelings gone, broski telling me stay strong

For the 9 it's bottles up, fake opps trynna get rid of us

Come to the 9 get k'd, how many opps got laid?

Broski telling me aim for the face, but I'm doing that shit anyway

I be posted all night all day, moonlight shines boy it's time to pray

Guess it's time for the evil play, Ching him down in a splashy way

Fuck the Judge Ian copping no sentence, time go slow Tryanna teach me a lesson

Don't wanna hear it stop begging and begging

Spare your ..... now u must be tripping

He want smoke bro stop the cap, quit showing them unloaded waps

647 The defence submits that based on other evidence this reflects nothing more than QM writing in a 'gangsta' style.

648 I consider the lyrics are more general than the earlier lyrics referred to and could be about events other than the murder of the deceased. As such, I do not consider the conduct amounts to incriminating conduct.

Fleeing from police, asking if it was only him who had been arrested, and refusing to provide his PIN code to his mobile phone[724]

649 The execution of a search warrant at QM's address in Amsterdam Avenue, Tarneit, took place on 23 March. QM fled from the police at the execution of the warrant. When arrested and cautioned, QM asked police, 'Is it only me who's arrested?'. The prosecution submits that fleeing from the police and asking the question 'Is it only me who's arrested?', when considered in the context of QM's post-offence conduct, supports an inference that QM fled to avoid apprehension because he believed the police were there to arrest him for his involvement in the offending.

650 After the suspension of his record of interview, QM was asked by police for the password or PIN on his phone. QM gave an incorrect PIN code. The police subsequently asked QM for the correct code and he refused.

651 The defence submits that at the time of the search warrant there was no evidence that QM knew what it was related to and that the Court could not reasonably exclude the prospect that QM was fleeing for an unrelated offence.

652 I consider that by 23 March, QM would have known that the search warrant related to the deceased's death. The rap lyrics created three days earlier illustrate that QM was waiting for the consequences of his involvement in that offending. There was a large contingent of police present at his home, and they remained there for 20 minutes before QM emerged and fled. The circumstances would have made it clear to QM that this was not a police intervention for a more minor matter.

653 QM's post-offence conduct, together with all the evidence leads me to conclude that the only reasonable explanation for QM fleeing is because he was avoiding apprehension because he knew that he had been involved in the deceased's attack and death and not some other unrelated offence.

654 However, I am not satisfied that the only reasonable explanation for QM's question 'Is it only me who's arrested?' is because QM was involved in the attack on the deceased and knew that it was a group attack. The conduct is equivocal.

655 Finally, in relation to QM's refusal to provide the PIN, this conduct could be no more than a teenager refusing to co-operate and bravado. I do not consider the conduct amounts to incriminating conduct.

Calling SA on three occasions while in custody

656 Evidence has been led that QM called SA on multiple occasions whilst QM was in custody on remand for the charge of murder. Relevantly,[725] there were phone calls on 27 March at 5:25pm,[726] and 5:38pm,[727] and on 1 April at 6:08pm.[728]

657 At 5:25pm on 27 March, QM, whilst in custody, had his mother merge a call with SA. They discussed whether there is enough evidence, with QM saying there isn't but wondering why SA had not got 'nagged'. SA replied that he felt it was because of the cameras and how he was beneath, sitting down. QM cut across him and told him to shut up. QM told SA that he was surprised that everyone kept their mouths shut. SA said he was surprised but it made him happy.

658 At 5:38pm on 27 March, QM had his mother merge a call with SA. They discussed JA's arrest and QM asked SA if he had been done for this case yet. QM said they don't have any evidence on him, and that they, the police, had just got word from HP. He later told SA that no one was going to go down, because they weren't going to lose.

659 At 6:08pm on 1 April, QM had his mother merge a call with SA. SA referred to HP and GD snitching, and QM agreed. QM said he was surprised everyone kept their mouths shut and that he is proud of them.

660 The prosecution submits that the three conversations between QM and SA reveal the following:

• they are clearly discussing the murder and conduct alleged against them;
• QM queries why SA has not been 'nagged yet' - that is arrested;
• QM agrees that the reason why SA has not been nagged is because of the cameras;
• QM immediately tells SA to shut up when he talks a little too much about being at the scene - because he knows that the calls are recorded and that this can be heard at the commencement of the calls;
• QM expressed surprise that everyone kept their mouths shut; and
• QM's pride in that assertion - that is, that the offenders have not told the police what had happened and who was involved.

661 I reject the defence's submission that the conversations do not disclose anything other than an awareness of the evidence in the case.

662 I consider the three phone calls reveal QM and SA are discussing the offending and the conduct alleged against them. The nature of these conversations concerns the offending, the arrest for the deceased's murder and whether a witness, namely HP, has snitched and that the other co-accused have not talked.

663 I consider the only reasonable explanation for QM's assertions during the three phone calls is that he knew he was involved in the offending as charged.

664 I turn now to evidence of DM's conduct after the attack on the deceased. The prosecution identified three items of conduct in relation to DM which it relies on as incriminating conduct. I have considered those items together with the parties' relevant submissions.

(a) on 16 March at 5:48am, DM got out of the front passenger seat of the stolen Holden Cruze at a BP service station at 1500 Pascoe Vale Road, Coolaroo. He filled up two McDonald's cups with petrol before getting back in the vehicle and travelling in a southerly direction on Pascoe Vale Road;

(b) on 16 March at 6:00am, the stolen Mazda used in the commission of the murder was set on fire at a car park adjacent to 11 Papworth Place, Meadow Heights. The location is a 5 minute drive from the BP service station in Coolaroo. The ignition of combustible materials in the passenger compartment was assisted by the presence of petrol stolen. Five males can be seen running from the car fire towards a parked car matching the Holden Cruze; and

(c) during his record of interview with police on 23 March, DM told the following lies:

• on 12 March he woke up, showered, watched TV, and left the house around 3pm or 4pm. He took the bus to Riverdale;
• he went to a random house that nobody lived in and stayed there the rest of the night. He 'pretty much' went to sleep;
• he woke up around 8am (on 13 March) and went to McDonald's in Tarneit Central. He went home around 10:30am;
• he returned home by himself;
• he was wearing a black hoodie, black pants and black Nike TNs;
• he did not know anything about a murder; and
• he denied being in the CCTV footage and denied being there.

666 The defence did not specifically assert that, based on the evidence, any of the three items were not reasonably capable of being viewed by me as evidence of incriminating conduct. As such, under s 21(1)(b) of the Jury Directions Act I was satisfied that it open for me, as a factfinder, to consider whether any or all the three items amounted to incriminating conduct.

667 DM did not dispute that he was involved in the burning of the Mazda.

668 I will deal with the first two items of conduct in combination. That is, that DM obtained accelerant and then used it in conjunction with others to destroy the Mazda.

669 Setting fire to a car which was used to drive to and away from the crime scene is difficult explain other than by desire to destroy evidence connected to a homicide. I accept that there were others present when the Mazda was burned who were not involved in the offending.

670 I do not consider DM's involvement in the destruction of the car amounts to incriminating conduct. Destroying the car to avoid detection for its theft is another reasonable explanation for the conduct.

671 The next item of incriminating conduct is DM's lies in the interview. It is argued by the defence that there are other explanations for the lies:

(a) knowledge of the criminality of his friends and that he is aware of the murder;

(b) distrust of the police;

(c) his involvement in theft of cars and his concern about connection to such crime;

(d) concern about a connection to individuals involved in the murder, in particular AM and PM who he is seen going home with in the morning of 13 March; and

(e) his reluctance to admit that he was stealing cars and 'running riot with his friends' in front of his mother.[729]

672 Snapchat videos placed DM with other offenders during 12 March and in the Mazda at 2:09am on 13 March. DM does not spend the night alone in a random house and does not come home by himself on 13 March. When he arrives home with AM and PM on the morning of 13 March he is in the clothes he was wearing on 12 March, in the Snapchat video and at the crime scene.

673 The only reasonable explanation for DM telling the series of lies in the interview was to conceal his association with other co-offenders, to conceal his whereabouts in the early hours of 13 March and to avoid identification at the crime scene by his clothing. When the lies are considered in the context of all the evidence, the only reasonable inference is that he believed the truth would implicate him in the offending and identifying him as male 3 on the CCTV footage and because he was involved in the offending.

674 I have taken into consideration DM's youthful age of 14 years at the time he told the lies and the fact that young people may lie for a variety of reasons. However, in the context of all the evidence and the number and specific nature of the lies, all seeking to distance DM from his presence at the crime scene, I consider that he lied because he knew he was involved in the offending.

675 Based on the evidence admissible in each of their trials, I am satisfied beyond reasonable doubt that the evidence establishes:

(a) SA is male 8 in the CCTV footage;

(b) QM is male 2 in the CCTV footage; and

(c) DM is male 3 in the CCTV footage.

676 Having accepted that each of the accused is depicted in the CCTV footage of the attack, I now turn to consider whether the prosecution has established the elements of murder by complicity, beyond reasonable doubt.

677 As noted above, the elements of murder by complicity pursuant to s 323(1)(c) - upon which the prosecution primarily puts its case against each accused - are that:

(1) the accused entered into an agreement, arrangement or understanding with at least one other person to cause really serious injury or death to the deceased and that agreement, arrangement or understanding remained in existence at the relevant time the offence was committed ('agreement, arrangement or understanding'); and

(2) at the time of entering into the agreement, arrangement or understanding the accused had the requisite mens rea for murder - an intention to cause really serious injury or death ('intention'); and

(3) the accused engaged in an overt act in furtherance of the agreement, arrangement or understanding ('participation'); and