R v Green - [2021] NSWSC 1449 - NSWSC 2021 case summary — Zoe

NSWNSWSC

R v Green

[2021] NSWSC 1449

Supreme Court of NSW|2021-10-13|Before: Campbell J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2021-10-13

Before

Campbell J

Catchwords

116, 165 Crimes Act 1900 (NSW) ss 33B, 105A, 112, 428B, 428C, 428F Cases Cited: Hawkins v the Queen (1994) 1979 CLR 500
[1994] HCA 28 R v Minani (2005) 63 NSWLR 490
[2005] NSWCCA 226 The Queen v Baden-Clay (2016) 258 CLR 308

Source

Original judgment source is linked above.

Catchwords

116, 165 Crimes Act 1900 (NSW) ss 33B, 105A, 112, 428B, 428C, 428F Cases Cited: Hawkins v the Queen (1994) 1979 CLR 500[1994] HCA 28 R v Minani (2005) 63 NSWLR 490[2005] NSWCCA 226 The Queen v Baden-Clay (2016) 258 CLR 308

Judgment (43 paragraphs)

[1]

Judgment

The last clear proof that Ms Teah Luckwell was alive is provided by two aspects of the evidence led at the special hearing. The first is an excerpt of CCTV footage recorded by a camera located at 22 Petra Avenue, South Tamworth (part of Exhibit H). The footage depicts Ms Luckwell, whom I will refer to as Teah, without meaning disrespect, walking west along Petra Avenue outside the premises at 39 to 43, known in these proceedings as the Petra flats, pushing her baby's pram. The time is 5:45 pm. I infer, she entered the premises. Three minutes later she is seen leaving the premises heading east. From the evidence about the local geography of that part of Tamworth, I infer she is heading in the direction of her home at 34 Robert Street, South Tamworth. That impression is confirmed by the oral testimony of her neighbour directly to her west at 36 Robert St, Mr Daniel O'Connor, who recalls seeing Teah at about 5:45 pm pushing the pram back in the direction of her home next door. She was alone, apart from her baby (348.40T).
When Teah is next seen, including by her neighbour Mrs Emma O'Connor at about 9:20 pm on 28 March 2019, she was supine on her kitchen floor. As other evidence shows, she was already dead. Mrs O'Connor rescued Teah's 14-month-old baby daughter and with her husband called emergency services. Mrs O'Connor's estimate of time may be slightly out, because ambulance records log the call at 9.36 pm (Exhibit 34). When Mrs O'Connor had pulled up in her car outside 34 Robert Street preparatory to turning right into her driveway, she noticed a light on in Teah's flat (344.20-25T). She regarded this as odd because Teah's front door was never open at that time of night, to her observation (342.5T). In fact, she regarded it as "very odd". As a light was on and the front door was open, she noticed "what appeared to be someone lying on the floor" (341.20T). She parked her car and walked to the front of Teah's flat, looking in, which confirmed her initial impression. She then noticed Teah's little girl and hurried to get her husband to come and see what she had seen. She initiated a call to Triple-O.

[6]

The burden and standard of proof

A criminal trial is an accusatory process in the sense that the prosecution must formulate the charges brought against an accused person or defendant and lead in admissible form all evidence necessary to prove the charges beyond reasonable doubt, if it can. In discharging this obligation, the prosecution is not entitled to conscript the defendant as a witness in the prosecution case. In a special hearing, as in a trial, the defendant is entitled to the presumption of innocence. As an aspect of this fundamental civil liberty, subject to one important exception applicable here to which I will refer in a moment, the defendant is neither required to give evidence nor call any evidence in his own defence. The onus of proof beyond reasonable doubt is fixed immutably on the prosecution.
It is important to record that the defendant did not give evidence in the special hearing, although he had that right: s 56(7) of the Act. In common with all members of our community, the defendant enjoys the right to silence, including in court. No adverse inference can be drawn from the exercise by the defendant of the right to silence including his decision not to give evidence at the hearing. However, where there is evidence that the defendant has made statements about the subject matter of the charges out of court, whether exculpatory or inculpatory, they may be taken into account as part of the evidence in the case. Where there is evidence of an exculpatory statement a number of "rules" apply: first, the Crown will not have proved its case beyond reasonable doubt if I accept the statement as true and reliable; second, the same applies if, after an evaluation of all of the evidence, I am left in the position where I consider the exculpatory statement might possibly be true; and third, the Crown will not have proved its case beyond reasonable doubt unless it demonstrates that the exculpatory statement could not possibly be true. Even then no inference may be drawn against Mr Green from the rejection of an exculpatory statement; the Crown will only have proved its case if I am satisfied beyond reasonable doubt by evidence I actually accept from the limited evidence available that Mr Green committed the offence charged (s 59(1)(c)). These considerations are aspects of the burden and standard of proof in criminal proceedings.
However, to the extent to which Mr Green may have made inculpatory statements about any of the charges, I am entitled to take them into account as admissions against interest and accordingly as evidence favourable to the Crown.
In considering whether the Crown have proved its case beyond reasonable doubt, it is necessary for me to consider the evidence in the trial impartially and dispassionately. I must not let sympathy or emotion affect my judgment.

[8]

Mental health impairment defence and the issues

These battle lines crystalize the ultimate issue for my determination. Mr Bouveng, in respect of each count, argues that my verdict should be that Mr Green is not guilty of the offence charged in Counts 1 and 3 in accordance with s 51(1)(a); he did not make any formal concession on Count 2, but, quite properly acknowledged the strength of the Crown case in respect of it, submitting that the ss 28 and 59 special verdict was the likely outcome; while, as I have said, Mr Costello contended for the special verdict in each case. The special verdict may be broken into two parts. The first part is whether the Crown has proved beyond reasonable doubt the act constituting the essential physical element of each offence. If not, my verdict must be one of not guilty of each of the offences charged.
If I find the act proven to the requisite criminal standard it is then for Mr Green, by his counsel, to prove on the balance of probabilities that he is not criminally responsible for any of the offences charged by reason of the mental health impairment defence established by s 28 of the Act. According to the terms of s 28, a person is not criminally responsible for an offence if, at the time of carrying out the act constituting the offence, the person had, inter alia, a mental health impairment that had the effect that the person - 1. Did not know the nature and quality of the act, or 2. Did not know that the act was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong).
Whether the defence applies is a question of fact to be determined on the balance of probabilities (s 28(2) of the Act). This is the standard of proof applicable to civil cases and requires no more than proof that the facts necessary to make out the defence are more likely than not. This standard is much less stringent of exacting than the criminal standard of proof beyond reasonable doubt.
Section 28(3) of the Act makes clear that it is for the defendant, here Mr Green, to prove the defence. For the subsection provides, "until the contrary is proved, it is presumed that a defendant does not have a mental health impairment … that had [the necessary legal] effect" (my emphasis). The provision is expressed this way because not every mental health impairment will have the necessary effect on the defendant. But given the joint opinion of the forensic psychiatrists, Mr Green should have little difficulty in establishing the defence, if the question arises. And the question only arises, as I have said, if the Crown proves beyond reasonable doubt the relevant act constituting the physical element of the offence. Should it be necessary for me to consider the mental health impairment defence, it will not be necessary for me to remind myself of the matters required to be explained to a jury by s 29 of the Act: s 6 of the Act, which I need not set at this stage.
Although the Act, which received the Royal Assent on 23 March 2020, made changes to the previous law relating to the mental health defence in force when Teah was killed, counsel are agreed that the provisions of the Act apply in this case by virtue of the operation of Schedule 2, clauses 3 and 5 of the Act. That is because the question of whether Mr Green was mentally ill, or rather suffered a mental health impairment, in a way that raised a question about the "availability" of the defence, was not raised until the receipt of the reports of Dr Chew, on 5 May 2021, and Dr Stephen Allnutt, on 14 June 2021, which dates are after the proclaimed commencement of the Act on 27 March 2021. I will proceed on this basis.
Each of the three counts on the indictment are offences of specific intent. Ordinarily, to prove each offence, it would be necessary for the prosecution to prove both the physical element and the mental element of intent for each offence to the requisite criminal standard. As is well known in the case of murder, Count 1, the requisite intent the Crown is required to prove beyond reasonable doubt is that when Mr Green committed the act which caused death he did so with the actual specific intent of either killing or inflicting grievous bodily harm upon Teah. The second count involves the intention to break and enter the dwelling house. And the third count includes the intent to commit an assault.
That the s 28 defence has been raised on the evidence affects the order in which the issues are to be determined. The first stage is to decide whether the Crown has proven the act constituting each offence to the criminal standard. At this stage, the question of whether Mr Green suffered a mental health impairment at that time is irrelevant. If I am so satisfied as to the physical element, I am required to proceed directly to consider whether Mr Green is not criminally responsible for his actions and their consequences by deciding whether he has established the mental health impairment defence on the balance of probabilities: Hawkins v the Queen (1994) 1979 CLR 500; [1994] HCA 28; R v Minani (2005) 63 NSWLR 490; [2005] NSWCCA 226 at [32]. If I am satisfied about the availability of the defence, the question of intent does not arise at all.

[10]

Proof in a circumstantial case

The Crown has made very clear that in relation to Count 1 that its case is entirely circumstantial. There is no direct evidence that Mr Green is the person who inflicted the fatal stab wound, and the other wounds, on Teah. Nor has he made any admissions to anyone that he did. There is no forensic evidence linking him to the scene of the fatal stabbing, or to Teah's body. However, it is not necessary for proof beyond reasonable doubt for the Crown to produce either an eyewitness, an admission of guilt or other direct evidence. Instead the Crown asks me to draw the inference that Mr Green must have killed Teah from all of the circumstances which have been proved.
Where a case is based upon circumstantial evidence the Crown will have failed to prove its case beyond reasonable doubt unless the conclusion that Mr Green killed Teah by stabbing her is the only rational inference that can be drawn from the whole of the circumstances actually established to my satisfaction by evidence I accept. To put it another way, I cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other conclusion is reasonably compatible with the circumstances.
It is of critical importance when considering such a case that all of the circumstances established by the evidence must be considered and weighed together, not individually or in a piecemeal fashion. The probative force of a body of evidence may be cumulative. In such circumstances, it is unnecessary and indeed pointless to consider the degree of probability of each item of evidence separately.
In a circumstantial case it is essential to apply the burden of proof strictly. That means that the essential matter in issue here, whether Mr Green killed Teah by stabbing her must be proved beyond reasonable doubt, always bearing in mind the presumption of innocence, and the limited evidence available in a special hearing.
But this does not mean that every fact - every piece of evidence - relied upon by the Crown to support the inference must itself be proved beyond reasonable doubt. As I have said, the probative force of a body of evidence may be cumulative. But, if having considered all of the circumstances established by the evidence together as a whole, there is a rational inference available that Mr Green did not kill Teah, open upon the evidence, even as a reasonable possibility, I must bring in a verdict of not guilty of murder. As the case has been presented, I am asked to consider whether it is a rational inference reasonably available on the whole of the evidence that some other named person may be the killer.
For practical purposes, sometimes a circumstantial case is described as a "link in the chain" case, on the one hand, or as a "strand in the cable" case on the other. Where the case falls into the former category. It may be necessary for the Crown to prove some of the circumstances relied upon beyond reasonable doubt because they are indispensable intermediate facts. In the latter category, it is only the elements of the offence itself which need to be proved beyond reasonable doubt. It is not necessary for the various factual "strands" to be proved to that high standard. This is because of what I have referred to as the cumulative effect of a body of evidence. The metaphor of "strands in the cable" is well understood. While each individual strand may be of insufficient strength to support the weight of the Crown case, when bound together the whole may be of greater probative force than the sum of its parts. I did not understand Mr Bouveng to dispute that this was a "strands in the cable" case.
That the case relies upon indirect, circumstantial evidence does not mean that it is weaker than a case that relies upon direct evidence or eyewitness accounts. In either case, of course, the question remains the same, has the Crown proved its case beyond reasonable doubt?
As I have said, for the standard of proof to be discharged the Crown must prove by reference to the whole of the circumstances established by evidence I actually accept that Mr Green was the person who stabbed Teah causing her death is the only rational inference that the circumstances would enable me to draw. If there is another rational inference consistent with Mr Green's innocence of that act, the Crown case fails. But it is important for me to bear in mind that for an inference to be rational or reasonable, it "must rest upon something more than mere conjecture. The bear possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all of the facts in the evidence": The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 [46] - [47]. In this context it is vital to bear in mind that an inference is a deduction from facts established by the evidence. Proof of facts A, B and C may permit one to infer or deduce fact E. An inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are facts established by the evidence from which the competing inference consistent with innocence may be drawn. But it is sufficient if the available inference consistent with innocence appears as a reasonable possibility. Even if I would not have been persuaded to draw the inference myself.
Counts 2 and 3 both fall into a somewhat different category. The proofs relied upon by the Crown are not wholly circumstantial inasmuch as, in respect of each of them, there is some forensic evidence linking Mr Green to what occurred at the respective premises. He made frank admissions in relation to Count 2 to Dr Allnutt and Dr Chew. He also made what may be regarded as a partial, implied admission to Dr Allnutt in relation to Count 3. However, to the extent that indirect circumstances are also brought to bear in proof of each count and the Crown invites me to engage in an inferential reasoning process to discharge its onus of proof, I will apply the principles of law concerning circumstantial evidence I have set out.
Finally, if I am not satisfied that Mr Green committed the act forming an element any of the charged offences beyond reasonable doubt he is entitled to be acquitted by me returning a verdict of "Not Guilty": s 59 of the Act.

[12]

Synopsis

In the balance of this judgment I will consider the issues I have identified in this order:

first, has the Crown proved beyond reasonable doubt that Mr Green committed the act necessary to establish Count 2;
secondly, has the Crown proved beyond reasonable doubt that Mr Green committed the act necessary to establish Count 3;
thirdly, has Crown proved beyond reasonable doubt that Mr Green committed the act necessary to establish Count 1, Teah's murder;
fourthly, has the defence of mental health impairment been established on the balance of probabilities in respect of any count otherwise proved;
fifthly, if the fourth issue is determined in the negative, has the Crown established beyond reasonable doubt the necessary mental element for each count otherwise proved;
and finally, I will then bring in my verdict for each count.

Obviously, it may not be necessary to answer each of the questions I have posed in respect of all counts. For instance, if I am not satisfied beyond reasonable doubt as to proof of the act necessary to constitute a charged offence it will be unnecessary to answer any other question in respect of that count. Moreover, if the mental health impairment defence is resolved favourably to Mr Green in respect of any count, it will be unnecessary and inappropriate to go on to consider whether the mental element for any such offence has been established.
As I hope will be clear as I develop my reasons, the evidence relevant to Count 3 spans the Crown case for Count 1. That is to say, the Crown relies on two discrete episodes of conduct on the part of Mr Green to prove he committed the act constituting Count 3. It is the Crown case on Count 1 that Mr Green stabbed Teah fatally in the interval between those episodes. I acknowledge that there is scope for some confusion dealing with Count 3 separately and in advance of Count 1 when the facts contended for by the Crown flow more or less on a temporal continuum. However, it seems logical to me to separate the matters rather than dealing with them in a strictly chronological order. I will keep in mind throughout that certain circumstances the Crown seeks to establish in respect of Counts 2 and 3 respectively are also relevant to Count 1 as part of the circumstantial case. I will specify the circumstances actually established to my satisfaction by evidence I accept when dealing with Count 1.

[13]

Count 2 - Aggravated break and enter

It will be recalled that the allegations constituting the second count on the indictment are that on 27 March 2018 at Oxley Vale Mr Green broke into and entered the residence at 21 Ernest Street and while there committed a serious indictable offence, namely, larceny in circumstances of aggravation, being that he knew persons were inside the dwelling house. This offence is contrary to s 112(2) Crimes Act 1900 (NSW). The factual elements of the offence may be summarised as: 1. Mr Green broke into and entered the dwelling at 21 Ernest Street. It is unnecessary that the entry is forced. It's enough if he enters through an unlocked door; 2. While in the dwelling house he took and removed property for his own use; and 3. The circumstance of aggravation is he knew there were persons in the dwelling (s 105A(1)(f) Crimes Act). For the purpose of this element, if persons were in fact present at the time of the break-in, as is the case, Mr Green is presumed to have known that fact unless he proves that he had reasonable grounds for believing the premises were vacant (s 105A(2A) Crimes Act). Most of the evidence to establish Count 2 was tendered by way of a summary under s 50 of the Evidence Act (Exhibit 7). As I have said, there is no real dispute about this matter.
Mr Green normally resided with his mother at Calala Lane, Tamworth. He was home when his mother returned from work at or before 5:30 p.m. on Tuesday, 27 March 2018. Between 6 and 6:30 p.m. Mr Green left the house without telling his mother where he was going. He was picked up by a friend, Nikki Crisp. Ms Crisp had known Mr Green for some years.
At about 6 p.m. on 27 March 2018, Mr Green had messaged Ms Crisp asking for a lift to his father's place, which is in Mountview Crescent, Oxley Vale. Ms Crisp was happy to oblige and picked Mr Green up from his mother's place at about 6:10 p.m..
Mr Green's father, David Green, states that Mr Green arrived at his place around 4:40 p.m. He must be wrong about the time and I prefer the evidence of Ms Crisp given it is corroborated by the receipt of Mr Green's message to her at 6 p.m. and by the evidence of Mr Green's mother. Mr David Green states that he and his son had a beer and a yarn, and I infer he "moved [his son] on" after an hour or so.
This is broadly consistent with the statement of Mark Morley, a friend of Mr Green who also lived in Mountview Crescent. Mr Morley said he saw Mr Green at about 7 p.m. at his place and he was there for about 45 minutes. Although Mr Morley had the impression that Mr Green was on his way to his father's place, again I think he is mistaken. The probabilities strongly suggest that he called into Mr Morley's after he had been at his father's place. This impression is reinforced by Mr Morley's statement that he gave Mr Green directions to the home of another resident of the Oxley Vale area when Mr Green was leaving.
Thomas Allen and his partner, Chloe Tully had been living in Manila Road, Oxley Vale for about four months by 27 March 2018. Their address is quite close to Mr and Mrs Drews' Ernest Street address. Mr Allen said that Mr Green showed up between 9:30 p.m. and 10 p.m. and stayed for about an hour, talking. It seems likely that the times are not precise. Mr Green was angling for a place to spend the night, but Mr Allen moved him on, giving him $20 for a taxi. Mr Green then left without calling the taxi.
Ms Tully also says that Mr Green showed up at about 9:30 p.m. or 10 p.m. She said he stayed for about 30 or 40 minutes. After Mr Green left Ms Tully made it clear to Mr Allen that there was no way the former would be staying the night. Mr Allen and Ms Tully also stated that they thought they heard someone moving around near their front door at about 1 a.m., who they assumed was Mr Green. When Mr Allen went to check, there was no one there. Had someone been there it was certainly not Mr Green as other evidence conclusively demonstrates that Mr Green was back in the Tamworth town centre by about 11:45 p.m. It also establishes that he remained generally in the South Tamworth area until he left by train for Sydney mid-morning on 28 March 2018.
By 27 March 2018, Janice and Ian Drew had lived at their Ernest Street home for about 31 years. It is a two-storey brick home on a block that slopes up from the street. Their main living areas are on the upper level. There is a sloping driveway next door, to their right as you view their house from the street. On their side of the boundary there is a lawned area following the same slope as the neighbour's driveway and supported by a brick retaining wall in steps as it runs up the slope. Mrs Drew told police that one can reach the balcony railing on the upper level of the house by standing on top of the retaining wall near the top of the slope. The master bedroom and the adjoining loungeroom occupied the front of the home on the upper level, opening onto the balcony. At the back of the home beyond the kitchen is a family room where the couple watch TV, as they were on the evening of 27 March 2018.
Access to the balcony from the master bedroom is through a glass sliding door and sliding security screen door. Ms Drew said that the glass sliding door was open and I infer that the security door had been left unlocked as there was no sign of forced entry.
Mr and Mrs Drew had been watching a movie which finished at about 10:40 p.m. Mrs Drew turned off the TV and they went to the bedroom to retire for the night. As they approached the bedroom, they noticed that the internal bedroom door which they normally left it open was closed. They entered the bedroom, turning on the light and saw that the security screen door was open, Mrs Drew's handbag was on the bed, not where she left it, and two of the bedroom drawers were open. On closer inspection they noticed that Mrs Drew's purse was missing, as was Mr Drew's wallet. Mrs Drew called the police.
While waiting for police to attend the couple were able to compile a list of their missing property including cash totalling some hundreds of dollars, various credit cards and other personal cards. Mrs Drew also noticed a black and red jewellery box was missing from the dressing table. They later realised the car keys were also missing but were relieved to discover the car was still in the garage.
Over the next few days while walking in the vicinity of their home Mr and Mrs Drew recovered some items of their property which apparently had been discarded by the intruder. This included the jewellery box, the contents of which were strewn around a local park and Mr Drew's wallet, found in a neighbour's front yard. Another neighbour, previously unknown to them, returned the small purse containing some of Mrs Drew's personal cards, which the neighbour had found while walking her dog.
Crime scene officers carried out forensic testing, inter alia, on the veranda rail and the recovered jewellery box. An impression of Mr Green's left palm print was recovered from the veranda rail on the upper level and of his left middle and index fingers from the jewellery box.
The burglary at Ernest Street must have occurred between about 9:30 p.m. and 10:40 p.m. Mrs Drew had made a cup of coffee in the kitchen at about 9:30 and from there she would have been in a position to notice if the bedroom door had been closed. That timeframe also generally fits in with the chronology that can be garnered from the accounts of the persons Mr Green visited in the Oxley Vale area on the evening of 27 March 2018, even if their estimates of time are not precise. What is important is that their accounts place Mr Green in the immediate vicinity of Ernest St at the relevant time. According to the statement of Gary Adams, a taxi driver who picked Mr Green up from central Tamworth at 11:55 p.m., and CCTV footage, Mr Green was not back in central Tamworth until about an hour after the break-in was discovered by the Drews.
The fingerprint evidence, including the palm print on the veranda rail, which is indicative of a convenient point of entry to the upper level of the premises, and on the jewellery box, discarded in a park nearby, strongly point to Mr Green as the perpetrator.
The evidence led particularly in relation to Count 1 amply demonstrates that Mr Green spent a large portion of the early hours of 28 March 2018 in the company of the residents of unit 7/54-62 Robert Street, South Tamworth. CCTV footage (Exhibit 1) depicts him frequently coming and going from that address during that period. Senior Constable Christopher Kentwell, attached to Tamworth Crime Scene, was involved in a crime scene examination of those premises commencing at 10:20 a.m. on 5 April 2018 (492.19T). During this search, Mr Drew's driver's license and CBA credit card were recovered (Exhibit 21 197 -198 and 202). Although Mr Green was not the usual occupant of that residence, the location of that property at that address, taken in conjunction with the other evidence to which I have referred, leads me to conclude that it is more likely that Mr Drew's cards were taken to that address by Mr Green rather than by the occupants of those premises, and it was not submitted otherwise.
Finally, Mr Green admitted this break-in to both Dr Chew and Dr Allnutt. To Dr Chew (Exhibit 75; pages 5-6) he admitted "doing the break and enter" on 27 March 2018, a reference to the Ernest Street charge, Count 2. And to Dr Allnutt (Exhibit 74; page 2) he said: "… he believed he was at his father's house, then went to Tom Allen's house and broke into a house (he was not sure whose) for money".
I am satisfied beyond reasonable doubt that the Crown have proved that Mr Green committed the acts constituting the physical element of the charge contained in Count 2. So far as the circumstances of aggravation are concerned, Mr Green has not satisfied me that he had reasonable grounds for believing there was no one home. On the contrary, the bedroom door was open when he entered, and he must have heard the noise of the TV in the background. From other evidence in the Special Hearing he was adept at "creeping", an expression I understand from the evidence as denoting the ability to unobtrusively break into dwellings while they were occupied and move about quietly within them so as not to be detected by those occupants. I infer that he must have quietly closed the bedroom door to avoid detection.
As I have said, if necessary, I will deal with the relevant mental element later in these reasons, after considering the mental health impairment defence.
I will turn now to consider Count 3.

[14]

Count 3 - Using an offensive weapon with intent

Count 3 in the indictment charges Mr Green with committing an offence contrary to s 33B Crimes Act of using an offensive weapon with intent to commit an indictable offence. The relevant indictable offence is assault. The person the Crown says Mr Green intended to assault is Ms Tanya O'Toole, one of the residents of 48 Robert Street, South Tamworth.
The legal elements of this offending may be broken up into the following constituent parts: 1. Mr Green used an offensive weapon; 2. With intent to commit an assault on Ms O'Toole. Assault is an indictable offence.
The first element is the physical element of the offence. The second is the mental element of the offence which is the intent to actually bring about a specific result, namely, the assault of Ms O'Toole. The mental element here is the intention to cause Ms O'Toole to fear or apprehend that she will be subject to immediate and unlawful violence. Mr Bouveng submitted that Mr Green's state of intoxication is relevant to the question whether he had in fact formed the necessary specific intent for the Count 3 offence: ss 428B, 428C and 428F Crimes Act. But given that the mental health impairment defence has been raised it is unnecessary for me to consider the aspect or element of intent at this stage. My present focus must be on whether the Crown have proved beyond reasonable doubt Mr Green used an offensive weapon in a threatening way. To use, is of course, an active verb. Like all words it may reasonably bear differing shades of meaning depending upon the context in which it appears. In the present context it embodies ideas such as putting the offensive weapon into service or applying the offensive weapon to one's own purpose.
The Crown case is that Mr Green lunged or launched himself toward Ms O'Toole who was standing behind the screen door in her open front doorway, "in a strike mode" immediately before she quickly stepped back and slammed the door shut (263.35 - .46T). The Crown case is that Mr Green had a weapon of some sort in his hand. Ms O'Toole said that she heard what she took to be the impact of the weapon on the metallic screen door (264.5T). At the time the weapon appeared to her "like a baton, more or less" (264.13T). When she inspected the screen door later, she thought the flyscreen mesh had been "cut like a knife would slice it" (264.15T). The weapon Ms O'Toole drew for police on 29 March 2018 looked very much like a policeman's baton or truncheon. Photographs taken by forensic police (Exhibit 22, 6 - 10) indeed depict a cut in the flyscreen mesh, which from Ms O'Toole's evidence, I infer was not there previously. They also depict a bend or deflection in the metallic insert on the screen door at about the level where a penetration or gauge mark appears on the solid wooden front door. So far as one can tell from a lay perspective, the penetration appears more consistent with a sharp-tipped weapon than a rounded blunt baton. On later inspection, Ms O'Toole said the mark on the wooden door looked "like a stab mark, which was probably at my chest level" (268.40T).
Obviously, if I am satisfied of the facts deposed to by Ms O'Toole beyond reasonable doubt, the Crown will have proved that Mr Green committed the act constituting the physical element of Count 3. However, on behalf of Mr Green, Mr Bouveng submits that the evidence does not rise to that level. Accordingly, it is necessary to descend into the detail of the evidence as it concerns Count 3. As I have said, the Crown submit the facts directly relevant to Count 3 form part of the sequence of events also relevant, indirectly, to proof of Count 1.
After arriving back in central Tamworth just before midnight, CCTV footage (Exhibit 1) depicts Mr Green walking along the street on his own. His attire is clearly depicted. He was wearing a white t-shirt bearing a motif depicting a cigar-smoking Michael Jordan in his Chicago Bulls match strip, black shorts, black baseball cap, white socks and black thongs. Indeed, he had been so attired as shown in CCTV footage of his movements captured as early as 11:16 a.m. on 27 March 2018. From the central Tamworth footage, he was also sporting a black backpack and was using what appeared to be a pen-torch like the purple torch seized by police when his home was lawfully searched on 5 April 2018. When I first viewed this footage in court, I was struck by something distinctive to my mind about Mr Green's gait. It is difficult to break this down into its constituent parts. He seemed to be taking short, staggering steps while somewhat up on his toes. At first, I was inclined to put this down to tiredness. After all, on the evidence he had been on the go "all day". However, it occurred to me that his "walk" was probably due to his footwear - socks and thongs. It is difficult to take long, purposeful strides shod in that style. That impression was borne out by other subsequent footage depicting his movements.
From central Tamworth he called a taxi which took him to 7/54 - 62 Robert Street, South Tamworth, via McDonalds where he purchased a meal. The complex at 54 - 62 Robert Street has been referred to in the proceedings as the Robert Street flats. After arriving by taxi, he entered the Robert Street flats through the western carpark still carrying his McDonald's bag in his left hand. The time is 12:07 a.m. on 28 March 2018. He entered Unit 7, the dwelling of Mr Bennie McCarthy and Ms Shinara Russell, with whom he was acquainted.
The CCTV footage from multiple cameras at the Robert Street flats records various movements of Mr Green, Mr McCarthy and Ms Russell, not always together, to and from Unit 7. It is not necessary at this stage to detail all of the coming and goings of Mr Green in particular from the Robert Street flats. They are all carefully documented in the evidence, especially Exhibit 1. While these comings and goings are relevant for some purposes, it is not necessary to dwell upon them now.

[15]

Events before 4:22 am

The evidence demonstrates that after an adjustment is made for an error in the timing of the recording of the security cameras at the Robert Street flats, the relevant period for the initiation of Count 3, and the occurrence of Count 1, on the Crown case is 4:06:25 when Mr Green exits the Robert Streets flats on his own through the western carport. And his return at 4:22 a.m., a period of about 14 minutes and 30 seconds. By this time Mr Green has added a dark coloured Adidas brand sports jacket to his attire that he purchased from Mr McCarthy for $50. After this exit, I am satisfied that he headed east along Robert Street in the general direction of both 48 and 34 Robert Street. This is confirmed because he captured by a second and central CCTV camera at the Robert Street flats passing the entrance to the pathway at the eastern carpark to the Robert Street flats walking in an easterly direction.
48 Robert Street is the third residence on the left after the Robert Street flats as one heads east on Robert Street. Ms O'Toole was awoken from sleep at about 4:10 a.m. when she noticed the ceiling fan in her bedroom turning off (261.50 - 262.5T). She noticed that the dog next door was barking, but her immediate thought was there was a power problem because a ceiling fan was slowing down. She cannot now recall checking the light, but she assumed there was "a power problem" (262.10T). And she decided to go outside to check the fuse box which was located on the exterior eastern wall of her home near her driveway. On her first inspection she noticed that the main switch was off, and she turned it back on and went inside. She "checked the time" and recalls it being "roughly" 4:10 (262.4T).
When she came back inside, she flicked the light switch, but the light did not come on. She could see other homes with lights. Thinking it strange she went back outside to check the box again. She then noticed "everything was turned off". She turned everything back on and feeling very uncomfortable went back inside (262.30T). She did not see anyone outside on either occasion, but subsequent forensic investigation recovered traces of DNA consistent with Mr Green's profile from three of the fuse switches in the power box at 48 Robert Street. These were the "main switch", the "safety switch lights", and "main switch HWS" (523.25 - 524.30T). I take "HWS" to be hot water service. The report of the Forensic and Analytical Science Service indicated that the DNA recovered originated from Mr Green to a very high degree of probability. I am satisfied that he is the person who turned off Ms O'Toole's power.
It is the Crown's case that Mr Green, perhaps having been disturbed by Ms O'Toole unexpectedly emerging from her front door, desisted from his intentions at 48 Robert Street, whatever they may then have been, left those premises and continued east along Robert Street, across David Street to Teah's home at 34 Robert Street. I will deal with this submission when evaluating the evidence in relation to Count 1.
Mrs Robyn Wheeler is the dog-owning neighbour at 50 Robert Street, immediately to the west of no. 48. The dog in question is a Maltese Terrier. She was awoken at 4:05 by her dog barking and growling "really violently" (241.35T). She looked at the time. She noticed a sensor light had come on at the back of her house, but on investigation she could not "see anything out there". She then looked out the bedroom window at the front of the house and saw a man "about 6 ft tall with a black hoodie, dark grey shorts and white to grey joggers" (242.5T). The man was out the front of no. 48 with a torch which he was shining in the windows. He then disappeared down their driveway. She waited and watched for a while and saw nothing more before going back to bed (242.33T). Her husband, Rodney Wheeler also gave evidence, but given the content of it he does not seem to have awoken until later and I will mention his evidence below.
Mr Green is next seen on CCTV footage at the Robert Street flats at 4:22 a.m. He does not enter on this occasion by either the eastern or western carpark but appears to have clambered over a fence at its eastern extremity, making his way along the internal pathway towards Unit 7. At this time, he is seen to be bare-chested wearing neither t-shirt nor Adidas jacket. He is carrying something, perhaps the clothing he has shed. This is a noticeable change. At all times since acquiring the Adidas jacket from Mr McCarthy, he had been depicted wearing the same white t-shirt under the dark coloured Adidas jacket.

[16]

An earlier break and enter at 48 Robert Street on 24 March 2018

To put in context disputed evidence about Count 3 it is necessary at this stage to say something of the evidence in relation to an earlier break and enter at 48 Robert Street which occurred in the early hours of Saturday, 24 March 2018. Mr McCarthy was arrested on that charge on 5 April 2018 and subsequently pleaded guilty to it (571.20; 575.10 - .45T). Ms O'Toole cannot remember whether it occurred on Saturday the 24th or Sunday the 25th, but said it happened at about "4:30, 5 o'clock in the morning" (269.26T). She said one of her phones and a set of car keys were stolen from her home. Her former partner Mr James Madden had been residing with her because of concerns surrounding a spate of "break and enters … going on at that time" (271.9T). She did not report either event to the police until 29 March 2018.
Mr Madden gave evidence of the earlier break-in which he said occurred in the early morning of Saturday, 24 March 2018 just before 6 a.m. While staying at the premises he had been sleeping "in the back sunroom" (289.30 - .42T). He was awoken by a security sensor light illuminating at the back door. He got up to investigate and came face to face with the intruder. There is no issue that this was Mr McCarthy (290.20T). Mr McCarthy kept walking out the back door saying "sorry" as he left (292.5T). Mr Madden, as he was entitled to do, managed to strike him in the nose as he was leaving (292.20T). Mr McCarthy ran down the driveway of 48 Robert Street and turned right into Robert Street heading in a westerly direction with Mr Madden in pursuit (292.30 - 39T). Mr Madden saw Mr McCarthy running into the Robert Street flats (293.5T). There was some confusing evidence about which of the entrances Mr McCarthy used which is neither here nor there. Mr Madden broke off his pursuit. He said three mobile phones, keys to his daughter's Nissan ute, a set of house keys and his wallet were stolen (293.20 - .50T). The keys to the ute are of particular relevance as to the determination of the central facts underpinning Count 3, summarised by reference to Ms O'Toole's evidence above.
Mr McCarthy's evidence plays some not insignificant part in the determination of whether the Crown have proved the facts underpinning Count 3 beyond reasonable doubt. In this regard it is necessary to give myself a warning of a type I would be required to give to a jury charged with the responsibility of bringing in a verdict on this count in an ordinary criminal trial (s 165 Evidence Act). Mr Bouveng has submitted that Mr McCarthy's evidence may be unreliable for two principal reasons; the first is that when this event occurred, Mr McCarthy had a serious methylamphetamine addiction and was using two or three points per day. He had used ice more than once in the early hours of 28 March 2013. I accept that the perception of a person who is intoxicated, including by the use of illegal drugs, may be altered such that his ability to lay down an accurate memory and recall it reliably may be adversely affected. Secondly, Mr McCarthy benefited from agreeing with the police to give evidence against Mr Green in relation to the charges arising out of the offending of 24 March 2018. While the facts relating to that matter would have supported a charge of aggravated break and enter like the charge Mr Green faces in relation to Count 2, Mr McCarthy's charge was "downgraded" to one of break and enter in its non-aggravated form, carrying a lesser maximum penalty. Moreover, he received an additional discount of 5 percent over and above the discount for pleading guilty on the sentence which would otherwise have been passed upon him in the Local Court. Given his own involvement in the events of 24 March 2018 and his retention of the keys to the utility, it may be said that he is a person who might reasonably be supposed to have been criminally concerned in the events giving rise to the prosecution of Mr Green for Count 3. Obviously in relation to these matters there was a risk that Mr McCarthy may have sought to exculpate himself from any involvement in Count 3 and may be concerned to give helpful evidence lest his sentence be increased. I note that it has now been served.
These matters do not mean that Mr McCarthy's evidence is necessarily unreliable or should be rejected. Rather, they require me to scrutinise it with care. If, after a careful evaluation, I am persuaded to accept his evidence, then I am entitled to take into account as reliable evidence with the other reliable evidence in the case in coming to my decision.
The other resident of Unit 7 of the Robert Street flats was Shinara Russell, Mr McCarthy's partner. She made a statement to police on 5 April 2018. When questioned about it in court she volunteered that she was under the influence of drugs while giving the statement (606.31T). Mr McCarthy had also given evidence that Ms Russell was using drugs in the early hours of 28 March 2018 (565.45 - .50T). In cross-examination, Ms Russell agreed that as at March 2018 she was a heavy user of ice. She described it as "a bad habit" (623.35T). She was apparently using two points per day (623.38T). She also said that she had an intellectual disability which in conjunction with her drug use caused problems with her short-term memory (624.15 - 625.5T). She also agreed that "2 points of ice on the one day" would make her stay up all night and in those conditions her memory is "not real good" (sic) (626.28 - .35T). As I have already said in relation to Mr McCarthy, these are matters which are capable of affecting the reliability of a witness's evidence. From this evidence, it can be said that there are reasons why Ms Russell's memory for the events of the early hours of 28 March 2018 may be unreliable. These matters do not mean that her evidence must be rejected but indicate that one must be cautious when evaluating her evidence before deciding it is acceptable. Having exercised that caution, if I am satisfied that on this occasion her account can be relied upon then I am entitled to take it into account in deciding the case.

[17]

Events after 4:22 a.m.

I gave leave under s 32 of the Evidence Act for Ms Russell to refresh her memory by reference to her statement of 5 April 2018. Having read the statement, she was able to say that when Mr Green first arrived at Unit 7, he was wearing white t-shirt with a photo on the front but she was unable to say of whom, and she was unable to remember anything else about his attire. She said he was carrying a bag and that sometime when he was there she saw him handling fabric gloves and a mask (620.15 - .25T). She also said, "I think he pulled out a knife that night" (611.5T), which evidence I allowed over the objection of Mr Bouveng. Ms Russell was unsure of how long Mr Green stayed at Unit 7. Her evidence was that Mr Green wanted Mr McCarthy to accompany him "creeping", but the latter refused. Although her evidence was indefinite about this, she said that at one stage Mr Green was holding the white t-shirt under his arm while going through Mr McCarthy's clothes looking for a shirt. That also happened "before he went to Sydney" (614.14T). She said that he ended up wearing the Adidas jacket Mr McCarthy sold him.
I regret to say it's very hard to put much store on Ms Russell's evidence unless it is supported by other evidence. Quite apart from what she said about the effect of her intellectual disability and drug use on her memory, there were inconsistencies. For instance, in her evidence-in-chief she told the Crown prosecutor that she knew where Teah lived (620.5T) but denied the same thing in cross-examination (633.21T) when questioned about having a reason to want to harm Teah. She told the police that Mr Green told her that he had stolen the ute keys from 48 Robert Street, when she knew Mr McCarthy had. And she claimed that she and Mr McCarthy remained at home after 9 p.m. on 27 March 2018 until daylight the next day when manifestly that assertion is contradicted by the CCTV footage showing them leaving at different times during the hours of night, sometimes in the company of Mr Green. She had left her unit more than once that night and was last seen in the company of Mr McCarthy and Mr Green leaving her apartment and walking out through the western carpark of the Robert Street flats onto Robert Street at 3:23 a.m. before returning with Mr McCarthy to their unit a short time later. However, this is the last time she is seen to leave her apartment until 8:17 a.m. on 28 March 2018.
Ms Russell was cross-examined to suggest that Mr Green had been to her home three times at night-time and she was unable to say on which of those occasions he had produced a knife (626.37 -.50T). She agreed with this. She did say that she remembered Mr Green attempting to persuade Mr McCarthy to accompany him on "creeps" the night after they had been to Fantastic Furniture during the day. That date is established by the objective evidence of the Fantastic Furniture records and Ms Russell's bank statements as 27 March 2018 (Exhibits 36 and 37).
Mr McCarthy also remembers Mr Green being at their apartment on the evening after they purchased and received delivery of the items from Fantastic Furniture (558.35T). I interpolate there is no doubt that Mr Green was in and out of Unit 7 during that night as is clearly established by the CCTV footage. Mr McCarthy confirms that he sold Mr Green the Adidas jacket with "little clover leaves all over it". I take this to be a reference to a trademark associated with the Adidas sporting goods brand. Mr Green attended a service station at Goonoo Goonoo Road to obtain cash to complete the purchase. There is in evidence CCTV footage of him at the service station at 1:38 a.m. in the company of others. Mr Green had returned with the money before 1:50 a.m. This corroborates Mr McCarthy's evidence about the sale of the jacket, as does the CCTV footage depicting Mr Green wearing it, to which I have already referred (559.10 - .39T).
Mr McCarthy said that after Mr Green returned from the service station the latter remained at the unit for a period of time. While he was at the unit, Mr McCarthy saw Mr Green with a knife and gloves. He described the gloves as black in colour and the knife as having a silver blade with a black handle with an overall length of 30 centimetres.
I interpolate that a black handled knife with a silver blade was seized by the police during the execution of a search warrant at Mr Green's home and is depicted in Exhibit 80.19 to .22 along with a black, red and yellow sheath. One of those images was shown to Dr Clifton and Prof DuFlou during their joint evidence. They both identified it as a knife capable of inflicting the stab wounds suffered by Teah including the fatal stab wound. Images of eleven knives and other sharp implements recovered as part of the police investigation were shown to the experts (Exhibit 93). Of them, three were identified as capable of causing Teah's injuries, including a blue handled knife taken from the crime scene by police. It should be emphasised that none of the knives or other implements including the three "likely" weapons bore any forensic material linking them with, or assisting to identify, Teah's killer. This applies to the knife associated with Mr Green's home.
At the time he saw these items Mr McCarthy said that Mr Green was getting ready to go out "creeping". Mr McCarthy defined "creeping" as searching, being quiet and breaking into places (561.25 - .36T).
Mr McCarthy confirmed that Mr Green left the premises, although he estimated that absence to be of an hour or two's duration. This was inconsistent with the comings and goings shown on the CCTV footage. At one stage there was a conversation relevant to what happened at no. 48. Bearing in mind that Mr McCarthy is the person who had broken into no. 48 Robert Street on 24 March 2018 and who among other things stole the keys for the ute, his evidence of the conversation between him and Mr Green was as follows (561.50 - 562.11T): "A. Yes, he said the fellow come outside the door and he couldn't get the ute and stabbed the door;" He was asked to repeat himself and said, "A. The place he went to the fellow came out and caught him and he ended up stabbing, stabbing the door. Q. You added something else at the end? A. He couldn't get the ute, he had the ute keys for a ute on Robert Street." Mr McCarthy gave evidence that he had stolen the ute keys and had given them to Mr Green (569.47 - 570.26T).
Part of the history that Mr Green gave to Dr Allnutt when he saw him on 1 May 2021 is relevant to Count 3. After his statement about breaking into what was the Drews' house after he had been to Tom Allen's house he said the following: "He went to Maccas and to Ben's house … he referred to Ben giving him keys for a car. He tried to steal that car five or six times …" "Maccas" is a reference to McDonald's family restaurant; "Ben" is a reference to Mr McCarthy; and in context, "car" must be understood as a reference to the ute at 48 Robert Street.
Mr Bouveng cross-examined Mr McCarthy about his failure to inform police in his statement that he had given the ute keys to Mr Green. He also cross-examined Mr McCarthy to suggest that he was the person who Ms O'Toole saw in the curtilage of 48 Robert Street and who lunged at the front door. In particular, he cross-examined Mr McCarthy to suggest that his attire matched the attire described by Ms O'Toole as that worn by her assailant. I will return to her evidence in a moment. He was somewhat evasive about answering those questions stating either that he did not know, or he did not remember because of the effluxion of time and his use of ice. He was also cross-examined to establish that he had a record for crimes of violence.
Mr Green next left Unit 7 by the western carpark at 4:56 a.m.. He is differently attired. Footage on his return depicts him wearing a darker coloured t-shirt with a lighter motif under a different Adidas jacket sporting the distinctive Adidas stripes on the sleeves. I accept the Crown case that the t-shirt is probably that depicted as worn by Mr Green in photographic stills obtained from the CCTV camera at Tamworth Railway Station at 10:35 a.m. on 28 March 2018 and at Hornsby Railway Station on 4:28 p.m. on the same day. It seems to be a black or dark brown t-shirt with a motif of a light-coloured rhinoceros inside an ellipsoid (Exhibit 119).
Ms O'Toole's evidence is that after checking the fuse box for the second time she stood looking out the front window for about 20 minutes. She saw nothing so she went back to bed after that, but she was unable to fall asleep. The neighbour's dog started barking again which made her feel that "someone was around" so she got up and looked out the kitchen window which overlooks the driveway (262.40 - 263.5T). She saw a man standing on the driveway looking into the back yard through the gate. She thought it looked really suspicious (263.19T). She could not make out anything in relation to his appearance "too quick". She yelled out to Mr Madden, "someone's in my driveway" and then proceeded to the front door just to see if she had scared him off and which way he would run (263.30T). But when she opened the door "he was actually coming forward towards the front porch". I have already recounted her evidence of the person lunging towards her as she slammed the door shut. She said that by then Mr Madden was with her but she had locked the door and attempted to dissuade him from going out. She said there was enough light from the streetlight for her to be able to see the person was in shorts and joggers. She did not recall gloves or socks. She said he was wearing a black hoodie with the hood over his head and she did not describe any motif. She said that from his legs he appeared to be of dark skin. He appeared to be 25 to 30 years of age and around 170 to 180 centimetres, she was not quite sure. She judged him to be "a bit toned" (264.20T).
In cross-examination she was asked whether she told the police the joggers were black and she answered "Yes, everything looked dark" (271.30T). She confirmed she said she was not sure if the person was wearing gloves.
Mr Madden said that he was awoken around 4:30 a.m. by the sound of Ms O'Toole "shuffling around the house" (296.8T). I infer this was after her second inspection of the fuse box. About 15 minutes later he heard her scream "he's here, tried to kill me" (296.15T). He confirmed that Ms O'Toole attempted block his exit but he, after a short delay, "gave chase" (296.20T). When he was outside, he saw a person running up the road. He pursued, but the person disappeared from his view. He returned home to get dressed as he was then naked. After he was clothed, he went around the block looking for the person but did not see him. He confirmed that he had lost sight of the person around the Robert Street units. He said "virtually the same place as what the following person did four days before" (sic) (296.35 - .40T). Mr Madden estimated that he last saw the person "round about 5 o'clock (305.41T).
In cross-examination he agreed he told the police that he wasn't "certain" if it was the same man he had chased previously (307.10T).
About 20 minutes after Mrs Wheeler had returned to bed (she did not look at the clock on this occasion) she suddenly heard yelling coming from no. 48. She again looked out the window and saw a person running up the footpath. To her it looked to be the person she had seen earlier, wearing the same attire she had previously described, holding a torch in one hand and something else she could not describe in the other. She then saw and heard her neighbour, James Madden, chasing the first person up the street "singing out" (244.27T) for him to "get back".
When Mr Wheeler woke up, the dog was still barking, and he heard some noises coming from no. 48. He said, "It sounded like a door banging or someone kicking the wall or something" (249.16T). He looked out the window and noticed a person jumping over the front fence at no. 48 then running west on Robert Street "up toward 54" (249.29T). He described the person's attire in terms similar to his wife including "white or creamy coloured joggers". Then he saw his next-door neighbour coming out of no. 48, yelling at the first person and "running up the street after him" (249.42T). Mr Wheeler thought there was a time lag of about five or six minutes between the pursued and the pursuer, but clearly his estimate must be out.
Ms Ashley Lenton lived at the ground floor unit immediately to the west of the pathway adjoining the eastern carpark at the Robert Street flats. She was awoken by noises she took to be her front gate squeaking and someone moving in her front yard. She heard someone jump the fence. She checked her smartphone and noticed "it's about 3" a.m. (322.25 - .29T). It is unlikely from the CCTV footage that that matter had anything to do with the counts with which I am concerned. However, she lay awake and about an hour later she heard the sound of running footsteps "coming closer and closer and closer" and heading down the pathway through the eastern carpark (322.45T). The running person was pursued by another who was calling on the first person to "come back here". Although this sounds very much like Mr Madden chasing the person the Crown allege is Mr Green, Ms Lenton said she checked the time as "about 8 minutes past 4 in the morning" (323.13T). She apparently made a statement to police to that effect on 30 March 2018.
It is, of course, possible that Ms Lenton was simply mistaken in her recall, for there is no evidence of any other chase having occurred in the immediate vicinity of her home that morning. Certainly, the image of a person running down the pathway through the eastern carpark sounds very much like what is depicted on CCTV footage to which I have referred. It is also consistent with Mr Madden's evidence of losing his quarry in the vicinity of the Robert Street flats. But as nobody asked her about this, it is difficult to take that enquiry any further. The best that can be said is that her evidence does not fit in with the Crown's timeline and to the extent to which the evidence does not support the Crown case, for that reason, I need to bear it in mind when considering whether I am satisfied as to Count 3 beyond reasonable doubt. I should also say that her evidence about the earlier incident does not fit in in any way with the Crown case. Other evidence which it is not really important for me to refer to in detail indicates that police and ambulance officers attended the Robert Street flats in relation to another incident at about that time. However, what she describes does not immediately fit in with the other evidence about that matter, which is not germane to the issues for my determination.
Exhibit 1 depicts Mr Green running through the eastern car park and entering the Robert Street Unit looking over his shoulder, clothed as I have previously described, carrying his backpack and wearing gloves. Obviously, the timing broadly accords with Mr Madden's evidence. Mr McCarthy, on the other hand, is not depicted leaving the Robert Street flats after 3:23 a.m. until 5:17 a.m. On that occasion after exiting through the western carpark he turns right onto Robert Street heading west. He returns at 5:26.
I am satisfied beyond reasonable doubt that the person who lunged at Ms O'Toole as she stood in the doorway of 48 Robert Street was Mr Green. From the damage to the flyscreen and the mark on the front door I am also satisfied to the requisite standard that he was using a sharp implement rather than a blunt baton as he did so. Ms O'Toole's description of the person broadly fits Mr Green's appearance, although it is hardly definitive. An important difference is, of course, the footwear. He was not wearing joggers but continued to wear his mainly white socks and black thongs. However, in circumstances where she was clearly frightened by the unexpected attack it is only to be expected that a person's perception may be mistaken.
I am satisfied that the person Mrs Wheeler saw entering the driveway at no. 48 was Mr Green. There is the minor matter of the use of the torch and what I regard as the very significant fact that he entered the driveway and the fuse box for no. 48 is on that side of the house. Given the presence of his DNA on at least three of the fuse switches and the absence of any credible foundation in the evidence explaining any process of secondary transfer, I am satisfied Mr Green is the person she saw. She was also of the view, although her opportunity to make the judgment was limited, that it was the same person she saw running up the street pursued by Mr Madden. People may well be mistaken, of course, about such judgments and care must be exercised before acting upon them. Both she and her husband described the first person running up the street as wearing joggers. Although they attributed different colours to them from Ms O'Toole. I have emphasised that Mr Green's footwear consisted of socks and thongs and not joggers. That three witnesses suggest the person was wearing joggers may be a reason to have a doubt about the identity of the perpetrator of Count 3. However, given the darkness, the consideration that the witnesses had not long woken from sleep and the limited opportunity of each of them to make the assessment asked of them, it is not too much to say they all may be mistaken in this detail. Joggers are extremely common footwear, socks and thongs not so much. In processing information perceived if not fleetingly then over a short timespan assumption may inform impression. Looking at the evidence as a whole, I am satisfied that the person seen by these witnesses was Mr Green.
I emphasise that of course Ms O'Toole did not purport to identify anybody. She did not purport to recognise the person she saw. She merely gave a description in general terms of the person she saw. However, the description she gave does not exclude Mr Green and it is broadly consistent with his attire and appearance that night. Her description of the person's physical attributes are consistent with Mr Green's appearance as depicted in the photographs making up Exhibit 119, and Exhibit 105 taken in October 2017. On its own her description would certainly fall a long way short of sufficient proof that Mr Green was the person involved. When one considers the other factors including the objective evidence of his movements provided by Exhibit 1, his DNA on the fuse box and the admission made to Dr Allnutt, I am satisfied to the requisite degree that it was him. Probably when Ms O'Toole saw him looking through the gate, he was attempting to locate the ute. The admission to Dr Allnutt need not be accurate in all its detail. Five attempts may be an exaggeration. What is important is the attempt to steal the "car".
Moreover, having exercised the caution necessary in the evaluation of Mr McCarthy's evidence for the reasons I have rehearsed, I am satisfied that he gave the ute keys to Mr Green and that when Mr Green returned from his second attempt on no. 48, he gave Mr McCarthy an accurate account of what had occurred including stabbing a door and Mr Madden giving chase. The aspect of pursuit is given a certain evidential piquancy when one considers Mr Green's running re-entry to the Robert Street flats, socks and thongs notwithstanding. This is the only occasion on all of the CCTV footage where he is seen to break into a run and depart from his usual gait.
Mr Bouveng argued because there was some short delay between the door slamming shut and the contact with it by the offensive weapon, I could not be satisfied that Mr Green had used the weapon in the manner required by the statute. However, to my mind that argument goes to intent rather than to the nature of the physical act required. And at this stage I am only concerned with the latter consideration. I am satisfied beyond reasonable doubt, as I have said, that Mr Green performed the act necessary to constitute the physical element of Count 3.

[18]

Count 1

It is the Crown case that at or just before 4:20 a.m. on 28 March 2018, Mr Green killed Teah by stabbing her three times with a knife inflicting the stab wounds that I have already described including the fatal stab wound. The time of death proffered falls within the broad range agreed to by the forensic pathologists by reference to the rule of thumb derived from Knights Forensic Pathology. More significantly the Crown relies upon the evidence of a loud piercing female scream heard at or before 4:20 a.m. by three witnesses as fixing the time of death. The three witnesses are Donna Searle, Ms Searle's partner, Mr Kim Enks, and their neighbour over the back fence, Mr Adrian Kenny.
As I have made clear from the outset, the Crown case is entirely circumstantial. There is no direct evidence implicating Mr Green in the offence of murder. I repeat from my earlier discussion of the legal principles that the Crown contention is that this is a "strands in the cable" case. Although the Crown must prove beyond reasonable ground that Mr Green killed Teah by stabbing her, it is not necessary that each strand of itself be proved beyond reasonable doubt. It is the cumulative force of a body of evidence that may discharge the onus of proof to the high standard required by the criminal law. For this reason, when determining guilt, it is necessary to consider all of the circumstances established by the evidence as a whole, rather than individually or in a piecemeal fashion. I repeat that to discharge its onus in a circumstantial case, the Crown must prove not only that it is a rational inference available on the evidence that Mr Green killed Teah, it must also prove that that is the only rational inference available to be drawn from the circumstances actually established by evidence I accept. The circumstances relied upon by the Crown are as follows: 1. The scream heard by the witnesses I have mentioned was made by Teah as she received the fatal stab wound; 2. That Mr Green is known to have been in the vicinity. He left the Robert Street flats at about 4:07 for the purpose of embarking on "creeps"; 3. The distance between the Robert Street flats and 34 Robert Street is not great. It took a middle-aged detective about three minutes to cover the distance; 4. Mr Green must have made his first attempt on 48 Robert Street very soon after exiting the Robert Street flats. By 4:10 a.m. Mrs O'Toole had made her first inspection of the fuse box and gone back inside. 5. Ms O'Toole apparently disturbed Mr Green in his attempt and he quit those premises continuing along Robert Street to the east. There is no CCTV footage of him doubling back to the Robert Street flats then; 6. Mark Morgan and Joshua Allan, both of whom were acquainted with Mr Green, recognised him crossing David Street which intersects Robert Street between numbers 38 and 44, heading east in the direction of no. 34; 7. He was at all times armed with a knife capable of inflicting the stab wounds suffered by Teah; 8. Mr Green and Teah were known to each other, not least because he was her neighbour living in flat 1/34 Robert Street from 15 September 2017 to 31 October 2017 (965.7T); 9. The forensic evidence from no. 48 positively establishes that Mr Green was in the vicinity spatially and temporally proximate to the scream; indeed, only minutes before; 10. The evidence in relation to the occurrence of Count 3 establishes that he then had a hostile state of mind prone to respond violently, at least to female occupants of premises he had targeted who had disturbed him; 11. Given the geographical proximity between the Robert Street flats and 34 Robert Street, he had a limited but adequate temporal opportunity to go to 34 Robert Street, stab Teah and return to the Robert Street flats by the time he is next seen at the adjusted time of 4:22 a.m. clambering over the fence at the eastern extremity; 12. The events forming Count 2 demonstrate that Mr Green had the agility and the athletic ability to easily clamber over the eastern fence of the Robert Street flats; 13. Significantly, when he is seen after his re-entry to the Robert Street flats complex after 4:22 he is bare chested having removed his t-shirt and Adidas jacket; 14. It is common ground between the forensic pathologists that Teah's assailant "very likely" would have received a degree of blood soiling on their person, hands or clothing (1580.5T - 1581.5T). The experts, however, were unable to express an opinion about the likely pattern of any blood soiling (1581.10 - .250T). 15. Despite a very thorough search of Mr Green's Callala Place home and unit 7 at the Robert Street flats, the t-shirt and jacket that he had been wearing when he left the Robert Street flats at about 4:06 a.m. were never recovered;
The Crown also rely upon coincidence reasoning. The events at 48 Robert Street and 34 Robert Street, given their spatial and temporal proximity, are not explicable by way of coincidence. It is no coincidence that someone lunged at Ms O'Toole with a sharp implement near her front door and that Teah was stabbed near her front door. The perpetrator must be the same person, according to the argument.
The Crown also submits that the absence of forensic evidence linking Mr Green to Teah's death is not a circumstance given the other matters to which I have referred, such as to create a reasonable doubt that Mr Green is the perpetrator.
The Crown also argues, to the extent that there are other persons who have been named as persons of interest in the police investigation and during the course of the special hearing, on the proper understanding of all of the evidence, the putative involvement of any one of them has no true evidential foundation but involves impermissible speculation or conjecture.
Despite the evidence about Teah's previous relationship with Mr Green which suggested she feared him for good reason, admitted as relationship evidence, I did not understand the Crown to rely upon that evidence as a relevant circumstance at the conclusion of the hearing. This may have been because of a body of evidence admitted during the trial suggesting that Teah was a person prepared to make false allegations of domestic violence against sometime lovers, at least if thwarted in love.
Additionally, the Crown said that the condition of the front door lock at 34 Robert Street is consistent with forced entry to the premises by Mr Green, while acknowledging that there are other possibilities (2134.35T). It will be necessary to return to that question.
In relation to Count 1 Mr Bouveng identified the "live issues in this special hearing" as follows (2158.49T): 1. The time of death; 2. The identity of the attacker or attackers; and 3. Their opportunity to act between 5:45 p.m on 27 March 2018 when Teah was last, reliably, seen alive and the early evening of 28 March 2018, which realistically on the evidence of Dr Clifton and Professor Duflou must have been the latest time of death given the available evidence as to the condition of her earthly remains at about 9:30 p.m. that evening. It is clear that while arguing the proofs proffered by the Crown against Mr Green do not rise to the necessary standard, a principal issue goes to the identity of the attacker. The time of death and the related issue of opportunity are bound up with issue (b). 11 witnesses were asked whether they had anything to do with Teah's death: Wade Carter (876, 1706T); his father William Carter (1672T); David Hughes (755T); James Orle (1148, 1169T); Dylan Porter (1209T); Brandon Waters (1221T); Matty Bell (1312, 1347T); Vesa Riikonen (365T); Ben McCarthy (587T); Shinarra Russell (634T) and Stuart Blair (922T). The approach to the cross-examination of these witnesses illustrates the practical effect, to which I have already made reference, of the limited evidence available on the special hearing. Given the limited capacity of Mr Green, who is not fit to plead because of his mental illness, to participate in the proceedings by instructing his counsel fully in relation to the issues, it is necessary for cross-examination to be pursued, sometimes, in an exploratory fashion rather than with the benefit of definite instructions. However, at the conclusion of the evidence and during addresses, it was obvious that Mr Bouveng had limited the scope of his argument to four persons: Wade Carter, David Hughes, James Orle and Matty Bell. It is not necessary for me, given this identification of the issues, to pursue the questions that were raised in cross-examination of the other seven witnesses and I will not do so.
I should also say that the relevance of the remaining issue about these four persons is whether the Crown have, in proof of the circumstantial case, excluded what is said to be a reasonable hypothesis consistent with Mr Green's innocence that one of these four persons is the perpetrator. In assessing the argument and the evidence, concerning these men I will bear in mind that they are not parties to this proceeding and have had no legal representation in relation to it. They are not charged with anything in a formal sense, and they are not on trial. Rather each of them was compelled to give evidence, and in the Crown case. It was explained to each of them that he was entitled to the privilege against self-incrimination. When asked whether he was involved and each of them chose to answer the question, and in the negative. Moreover, this part of Mr Bouveng's argument went to what was referred to as the rigour of the police investigations: were stones left unturned or relevant ends left loose, if I may mix my metaphors. Such an argument is, of course, relevant to the question whether the Crown have proved its case against Mr Green beyond reasonable doubt. I remind myself that a reasonable hypothesis, despite the label, does not depend upon mere theorisation. It must have a basis in sufficient facts actually proved capable of supporting an inference to that effect, even if the inference is unpersuasive. Suspicion, even grave suspicion, does not satisfy this test.
As I have said when discussing legal principles, I am required to take into account exculpatory statements made by Mr Green about Count 1. As Mr Bouveng pointed out when questioned by police after his arrest, Mr Green made no admissions of involvement in Teah's death. Moreover, unlike the case of Counts 2 and 3, when examined by Dr Stephen Allnutt on 1 June 2021 (Exhibit 74) he denied any involvement in Teah's death. He said Teah had been a friend of his. He denied any sexual intimacy with her and denied any prior aggression toward her.
Looking at the Crown case, I remind myself that it's not necessary that every circumstance relied upon by the Crown is proved beyond reasonable doubt. Of the matters I have listed at the foot of [114] from findings I have already made, I am satisfied that the Crown have established circumstances (b), (c), (d), (e), (g), (h), (i), (l), (m), (n) and (o).
Of the remaining individual circumstances, (a) is in substance an element of the offence; (f) is potentially evidence of central importance, but the evidence of Mr Morgan and Mr Allan was controversial; (j) is certainly available to be drawn given what I have found to be the circumstances of Count 3, notwithstanding the relevant event occurred about an hour later; and concerning (k), I accept that the available time span allowed Mr Green a limited but adequate opportunity to have fatally stabbed Teah before returning to the Robert Street flats at 4:22 a.m.. On my reckoning he must have already slipped away from 48 Robert Street by the time Ms O'Toole looked at her clock. This leaves a minimum of 12 minutes. Allowing the full three minutes each way, he could have been at 2/34 Robert Street for six minutes, certainly sufficient time for a person to inflict three stab wounds on another with a knife the person was already carrying.
I will return to coincidence reasoning at the conclusion of my analysis. The absence of forensic evidence must remain a factor which weakens the Crown case but is not fatal to it. As I have said, there is evidence that Mr Green is wearing gloves or at least was equipped with them which could explain the absence of fingerprints and DNA deposited by him contacting surfaces with his bare hands. But as Mr Bouveng argues, he apparently deposited traces of his DNA in Ms O'Toole's fuse box only minutes before he is said to have killed Teah.
I will now turn to deal with the matters remaining in dispute. The logical starting place is the evidence of Mr Morgan and Mr Allan. It is the Crown case that having left 48 Robert Street after his first attempt and having continued east in the direction of no. 34 Mr Green was seen by Mr Morgan and Mr Allan crossing David Street. Obviously, it is necessary for the Crown to demonstrate both that a sighting of Mr Green occurred and that it occurred at or around 4:15, on the basis of my calculation of the adequate but limited window of opportunity.

[19]

The evidence of Mr Morgan

In the early hours of 28 March 2018, Mark Morgan had been with acquaintances at a home unit complex at 37 Petra Avenue, referred to in these proceedings as the Petra Avenue flats. Petra Avenue runs parallel to Robert Street, to its North. The Petra Avenue flats are close to both the Robert Street flats and 34 Robert Street. If one was travelling from the Petra Avenue flats to 34 Robert Street, one would turn right into Petra Avenue, right again into David Street and left into Robert Street. Mr Morgan was aware of the location of 34 Robert Street (162.40 - .45T). Mr Morgan was with his friend, Joshua Allan. After a period at the Petra Avenue flats they left together to walk to the Goonoo Goonoo Service Station. Mr Morgan said (163.20T): "We left the flats, walked up to the corner, turned right, left, we turned left, we walked halfway down the street and a person walked across the road about 600 metres from us, the person seen us and the person spun out and started running, trying to … put the hood on and kept running." The person also flashed the torch light at them. I interpolate that it is obvious that Mr Morgan was somewhat confused. First, at the corner, one can only turn right into David Street and the portion of David Street connecting Petra Avenue and Robert Street is nothing like 600 metres long by any stretch of estimation. He again said that the person he saw shone a light at them and put the hood on his head and "pretty much took off running" (164.35T).
It needs to be borne in mind that Mr Morgan had used the illicit drug ice and became somewhat paranoid thinking that the person may be lying in wait for them around the corner in Robert Street. He said, he and Mr Allan walked back to back towards the corner, I assume as a sort of defensive formation, but the person they saw had gone out of sight. I interpolate 34 Robert Street is about the fourth property from the corner of David Street.
Mr Morgan said that Mr Allan said, "That looked like Jesse Green". Mr Morgan said he had met Mr Green a couple of times but he didn't know him as well as Mr Allan. Mr Morgan remarked that he wasn't "sure whether that was Jesse Green or not" (165.2T). They were still concerned that the person they had seen might come at them with a knife and made a plan to defend themselves in that eventuality (165.10T).
They continued walking east along Robert Street and Mr Morgan said at the roundabout at the intersection of Robert Street, Green Street to the north and Hillvue Road to the south they saw a person they know by the name of Darcy Caulfield driving past. Mr Caulfield had been in their company at the Petra Avenue flats. They signalled to him. He turned right into Hillvue and stopped about 400 metres down the road (166.15T). At least this is the inference I draw from his description of the events which was not characterised by crystal clarity. Mr Morgan and Mr Allan had to enter Mr Caulfield's vehicle through a window and he drove them to the service station. Once there, Mr Caulfield put petrol in the car and bought drinks for them. Other evidence clearly establishes that the drinks were purchased at 4:24 a.m. and the fuel at 4:27 a.m. (Exhibit 88). Given the relatively short distance involved, I am satisfied that it is likely that they would have been at the corner of David and Robert Streets during the period that the Crown describe as Mr Green's window of opportunity.
Mr Morgan made it quite clear that he was as at March 2018 and had been for many years previously a heavy drug user. In cross-examination he agreed that he had injected two points of ice in the early hours of 28 March 2018, as had his friend Joshua Allan (177.35T) (Mr Allan denied this). He also said that he knew Teah and had been to her flat and had assisted her in the recovery of a debt from a third party (180.20T).
What is apparent from his evidence in court is that Mr Morgan did not purport to recognise, let alone identify, Mr Green at all. His testimony was that Mr Allan identified Mr Green or at least said the person crossing David Street resembled him. In relation to this evidence such as it is, I give myself a warning under s 165 of the Evidence Act, given his evidence about his long years of drug use, that caution needs to be exercised in the evaluation of his evidence before accepting it given the effect of recent and long-term drug use on one's capacity to lay down accurate memory and to recall it. But if I'm otherwise satisfied that what he has said is reliable, I am entitled to act upon it and take it into account in deciding the case.

[20]

Evidence of Joshua Allan

Mr Joshua Allan said that in March 2018 he was living in Quirindi but was backwards and forwards from Tamworth to Quirindi from time to time. In Tamworth he stayed with a cousin in Robert Street. He said he did not really know Teah before he heard of her death (183.15T). On the early morning of 28 March 2018, he expected his social security benefit to go into his bank account and he was walking to the Goonoo Goonoo Service Station with his mate, Mr Morgan. He said that when they got into David Street "some fellow walking down the road and he … popped his hood on and flashed a torch at us" (183.20 - .25T). He could not remember the day or the date (183.45T). He agreed that he made a statement to police about the matter, but he could not remember the date (184.1 - .12T).
I gave leave for Mr Allan to refresh his memory from his police statement dated 15 May 2018 under s 32 Evidence Act. Having read the statement he was unsure of the time when he was walking in David Street other than to say it was after midnight. He was with Mr Morgan and they were heading to the service station. He had been at the Petra Street flats to visit Sophie Cheetham and Brodie Renshaw.
When they left the Petra Street flats, they turned right and then turned right again into David Street. He said when they turned into David Street "there was nothing until, like someone walking past, just walking down Robert Street, just crossing the road" heading east (187.25 - .33T). When asked to describe the person he said (187.45T) he "just had like just a hooded jumper and yeah, just trackies and I couldn't really see cause it was dark, but Mark said to me straightaway it looked like Jesse (Green), just by the walk".
However, he gave evidence, without any leading from the prosecutor, that the person he saw crossing David Street had socks and thongs on his feet. The thongs were a dark colour and the socks were white. The person was 15 to 20 metres away. He flicked his hood on his head and flashed his torch at them and just kept walking (188.20 - .40T). Then he gave the following evidence: "Q. Was there anything about the way they were walking that you noticed? A. Yeah, that's when Mark said he thought that it was Jesse and then I said, "Look, yeah, well, it sort of looked like his walk", you know? Q. Who was the one who first said that it looked like Jesse? A. Mark." Mr Allan said he had known Jesse Green for probably 10 years or longer (189.5T). He volunteered "We only thought it might have been someone, just because of the way they were walking. Doesn't mean it was them." (189.10T). Like Mr Morgan, the sighting caused him to be uneasy but when they reached the intersection with Robert Street "there was no one there"
Contrary to Mr Morgan's evidence, Mr Allan said that they walked all the way to the service station and Mr Caulfield picked them up on their way back.
Mr Allan was asked some questions about marks he had made on an aerial photograph of the area including during a police interview; in particular whether he had marked anything in relation to the person he had seen. He said at (190.45T): "No, not really, just like the way that, like he walked, that's why we just said it might have been Jesse."
I gave leave to the Crown to cross-examine Mr Allan under s 38 Evidence Act on a prior inconsistent statement (194.5T). Mr Allan identified the statement as his and he was able to answer the questions he'd been asked about the marks on the aerial photograph. He initially agreed that he had said to police "it's hard to explain how the man was walking but he had a certain swagger", but he disagreed that he had been the first of him and Mr Morgan to identify Mr Green. He said Mr Morgan said to him that it looked like Mr Green and he agreed. He then disavowed the expression "certain swagger" (196.22T) and having heard Mr Allan give evidence, I did not think it an authentic expression of his. He agreed that when Mark mentioned Mr Green, he "just thought the exact same thing", but he still doesn't know who it was (196.30T).
In cross-examination by Mr Bouveng he confirmed something which had been apparent from his examination-in-chief that he was reluctant to make a statement to police. But he did not agree that he had been shown a photograph of Mr Green, any footage of anyone walking in the street and he did not remember having been told that Mr Green had been charged. It was his understanding that Ms Cheetham or Mr Renshaw had told the police about what he and Mr Morgan had seen. He denied having used methylamphetamine prior to observing the person crossing David Street. He confirmed that his recollection was he and Mr Morgan had walked to the Service Station and were picked up by Mr Caulfield on the way back, taking them back to the service station with him (200.45T). He was prepared to agree that he had been smoking marijuana on the night in question.
Mr Allan's evidence falls into the category of resemblance evidence in as much as it amounts as evidence to the effect that the person crossing David Street looked like Mr Green because of the way he walked. This evidence falls within the definition of identification evidence in the Evidence Act. And engages the need for warning under s 116 Evidence Act to which I have already referred. I am not sure having reviewed the evidence that it amounts to recognition evidence, but subject to what I will say a little later abut Ms Cheetham's evidence, it may. In evaluating identification evidence there is a special need for caution before accepting it. There are a number of general reasons for caution about evidence of this type. Even an honest witness may fail to give reliable evidence. The danger in accepting identification evidence is the possibility that the witness may be mistaken in his identification of a person accused of a crime. The experience of the courts is that identification evidence often turns out to be unreliable and involves a real risk that an innocent person may be convicted. In this particular case, the opportunity for Mr Allan to identify Mr Green was limited. It was made in darkness when the person was 20 metres away. When the person noticed Mr Allan and Mr Morgan he put his hood up, perhaps to avoid identification, and flashed his torch at them, perhaps to identify them.
Although I will bear in mind that Mr Allan had known Mr Green for 10 years. It is perhaps significant that both Mr Morgan and Mr Allan were somewhat "spooked" by coming across this person which may have affected the perception of each of them. There is no suggestion that the police did anything to prompt Mr Allan's version. However, he did not come forward voluntarily as it were, but his name had been given to the police by another person to whom he had spoken about what he had seen after news of Teah's death was common knowledge in Tamworth. Having said that, a person's distinctive gait, how he or she deports himself or herself, is a factor by which he or she may be recognised or identified. Even so, one may be mistaken about an initial recognition of a friend or even a relative seen in the street. However, having evaluated his evidence with all these things in mind, if I am satisfied that Mr Allan's evidence is reliable, I will take it into account.

[21]

Darcy Caulfield

Mr Caulfied grew up at Gunnedah before attending Tamworth High School for years 7 to 12. He knew Teah because she was a year or two younger than him at school, but he did not know her well. They had friends in common.
In March 2018 Mr Caulfied stayed at Sophie Cheetham's place when he was in Tamworth. Mr Caulfield said that at around 1:30 a.m. he was heading for Ms Cheetham's place from another home he had visited and as he was driving on Robert Street near Hyman Park he saw Mr Morgan and Mr Allan who waved him down for a lift (216.50T). He said when they got in the car, and I can only do it justice by quoting him (217.4T): "They were just blowing out really because they reckoned someone shined (sic) a torch at their face or some shit and was … a problem." He said, they were pretty sure it was Jesse Green (217.18T).
Mr Caulfield remembered "them saying they thought it was him" (217.22T). He drove them to the service station on Goonoo Goonoo Road. He went in and bought some drinks and then decided he needed fuel and went back in and paid for the fuel. This evidence explains the existence of two receipts at 4:24 a.m. and 4:27 a.m. respectively (Exhibit 88). Clearly Mr Caulfield's recall of the time was incorrect.
When cross-examined under s 38 about his police statement dated 24 May 2018, he was unable to say that it was correct that he saw Mr Morgan and Mr Allan at around 4 to 4:30 a.m. rather than 1:30 a.m., although he thought the time mentioned in the statement probably would have been more correct (220.5T). I interpolate that time is reliably fixed by reference to the receipts from the service station. When asked whether he had picked Mr Morgan and Mr Allan up much further along Robert Street at Patricia Avenue, he adhered to the view that he thought it was near the park. After the service station they went back to the Petra Avenue flats. From CCTV footage played he recognised his car returning to the Petra Avenue flats. The adjusted time for this footage correlates with Exhibit 88. In cross-examination he said each of him, Mr Morgan and Mr Allan went to Ms Cheetham's place after the service station (227.35T). He said that both Mr Morgan and Mr Allan were "freaked out" (228.14T). He did not put this down to apparent intoxication by drugs or alcohol. He may be wrong about Mr Morgan and Mr Allan returning to Ms Cheetam's place, but the matter is not to my mind important.

[22]

Sophie Cheetham's evidence

Sophie Cheetham confirmed that as at March 2018 she was living at the Petra Avenue flats. She said that in the early hours of 28 March 2021 Mr Morgan, Mr Allan, Mr Caulfield and her then partner Mr Renshaw were at her place (279.12T). Her best recollection was that Mr Morgan and Mr Allan arrived together around midnight. She thought they'd left around 4 a.m. (278.35T) saying they were going to the Goonoo Goonoo Road Service Station to buy cigarettes. On her evidence, Mr Allan and Mr Morgan did not return to her place after they had been to the service station. She said she saw Mr Allan on Thursday 29 March 2018 after the news of Teah having been killed was common knowledge. Mr Allan asked Ms Cheetham if she had heard about it. She said Mr Allan told her at (280.5T): "Him and Mark were walking obviously down David Street and then went down Robert Street and they saw a very suspicious looking person who was near or at, coming from Teah's house (sic)". The person had their hood on and a flashlight. Mr Allan told her that he thought the person was Jesse Green, "but he wasn't sure" (280.22T).
Ms Cheetham was cross-examined under s 38 Evidence Act on the statement she'd made to police in May 2018. She agreed she told the police that Mr Allan had said that Mr Green was wearing black shorts and a dark hoodie (283.30T), rather than the "trackies" he had mentioned in his evidence.
In cross-examination she also said that she told the police that she had had a dream about what Mr Green was wearing (282.42T). She said she'd never met Teah, but she started having nightmares and dreams about it and dreamt about someone wearing the clothes she had described in the statement (284.15T). She had had that dream before making her statement on 10 May 2018. She was also challenged about the accuracy of her recollection that Mr Morgan and Mr Allan left at around 4 a.m. It was put to her that she said to police that they left around 3:30 a.m. to 4 a.m... She said she was not 100 percent sure (287.20T).

[25]

Finding as to whether Mr Green was the person seen by Mr Allan and Mr Morgan

Bearing in mind the special caution required in relation to the evaluation of identification evidence, notwithstanding the differences between Mr Morgan and Mr Allan, I accept Mr Allan's evidence in relation to seeing a person who to him resembled Mr Green crossing David Street, heading west on Robert Street. I accept there is a difficulty about this in light of the conflict between Mr Morgan and Mr Allan as to who first suggested the person resembled Mr Green. I have borne that conflict in mind as a factor going against the reliability of each of their accounts. However, some of that uncertainty is resolved by the accounts given by Mr Caulfield, Mr Renshaw and Ms Cheetham. It is quite clear that in a very contemporaneous manner, Mr Allan identified Mr Green to each of those persons. In particular, in the case of Mr Caulfield, whom I observe was not an easy witness, the identification was made before the event of Teah's death. It was almost immediate, after the sighting. To the extent to which the identification to Mr Renshaw and Ms Cheetham may have been influenced by news of Teah's death, I am not of the view that that circumstance undermines its reliability. I appreciate that the evidence of Mr Renshaw and Ms Cheetham is hearsay. However, it was clearly admissible and although it was unable to be tested directly by cross-examination, Mr Bouveng had the opportunity, which he took, of cross-examining both Mr Allan and Mr Morgan. He was also able to challenge Ms Cheetham and Mr Renshaw about matters which may have affected the reliability of their recall. This included Ms Cheetham's "dream" evidence, which is a little unusual. But given the overall consistency of the essential features of this body of evidence I do not consider that this aspect undermines the reliability of her corroborative account.
I also accept Ms Cheetham's evidence about the approximate time that Mr Morgan and Mr Allan left her place of 4:00 a.m. Whatever the vagaries of the CCTV footage evidence from Hyman Park on this point, the evidence of the tax invoices from the service station provide a reasonably accurate reference point for the timing of these events.
I am of the view that Mr Allan was simply mistaken when he says that he and Mr Morgan walked to the service station and were on their way back when they met Mr Caulfield. This is inconsistent with the accounts of both Mr Morgan and Mr Caulfield, which on this score I prefer.
I have borne in mind the special caution about identification evidence as I have said, and I have fully borne in mind the limited opportunity that Mr Allan in particular had to form his impression. However, I find his description of Mr Green wearing white socks and dark thongs compelling. I also find it compelling that it was Mr Green's gait which stood out, in one way or another, to both Mr Morgan and Mr Allan. Despite Mr Allan's adamantine evidence that Mr Morgan was the first to identify Mr Green, I am of the view, given Mr Allan's greater familiarity with Mr Green, it was probably him. His reluctance to give evidence in a sense enhances his evidence. And his obvious statement that just because a person looked like somebody does not mean it was that person in a way adds value to the evidence he actually gave. Neither Mr Allan nor Mr Morgan wanted to incriminate Mr Green. The fact that Mr Allan did not resile from his account notwithstanding this consideration in my judgment underpins its reliability.
I am satisfied that Mr Allan and Mr Morgan saw Mr Green crossing David Street shortly after 4:10 a.m. on 28 March 2018 heading east along Robert Street. Moreover, the fact that when they reached the intersection of David and Robert Streets, Mr Green was not in sight, is to my mind consistent with him entering the curtilage of 34 Robert Street approaching Teah's unit. I am satisfied that the Crown have established circumstance (f) that I have referred to above.

[26]

Circumstance (a) - was Teah fatally stabbed at or before 4:20 a.m. on 28 March 2019?

The finding I have made in relation to Mr Morgan and Mr Allan's evidence places Mr Green in the immediate vicinity of Teah's home at 34 Robert Street, minutes before a piercing female scream was heard. That he was not in sight when Mr Morgan and Mr Allan reached the intersection of David and Robert Streets is evidence from which an inference may be drawn that he had entered the yard of one of the residences on the northern side of Robert Street. It can be said with confidence that he did not enter the homes at either 36 or 38 Robert Street because each of the occupants of those homes has given evidence and did not say so. Moreover, I am satisfied that Mr Green was intent on practising his dark art of "creeping". That is why he was out on Robert Street at that time in the hours of darkness on the morning of 28 March 2018. He had lived at 1/34 Robert Street for about 6 weeks from September 2017 (965.7T) and during that time had been Teah's neighbour.
On the evidence, the fact that a home may be occupied is no disincentive to the creeper. Part of the art is to quietly gain access while the residents are asleep or otherwise occupied, as in the case of Mr and Mrs Drew of Ernest Street, Oxley Vale, and execute one's business without detection. Of course, on occasion, the presence of the creeper may be detected by the occupant as in the case of Ms O'Toole of 48 Robert Street. But it may be taken that generally confrontation with occupants is not courted, although it must be an unavoidable risk.
It is to be borne in mind that when Teah's body was found at around 9:30 p.m., the attention of passers-by and that of her neighbour was attracted by the illumination of a light within residence by which her lifeless body and the movements of her daughter could be seen. There was some evidence to suggest that this light may have been on in the kitchen, but I accept the evidence of Station Officer Kearney that it was the light in the entrance hall that was illuminated and he had to turn the kitchen light on to examine Teah.
There is, to my mind, quite important evidence related to the comings and goings of residents of the Robert Street flats, which demonstrates, at least to my satisfaction, that at about 1:35 a.m. Teah's home was in darkness. There was no light shining through an open front door. Just before 1:35 a.m. on 28 March 2018, Ms Ebony Roberts took a taxi from her home at the Robert Street flats to the Goonoo Goonoo Road Service Station to use the ATM. The taxi CCTV footage of the journey and some still images printed from it were tendered (Exhibits 100 and 100A). Two of the images in Exhibit 100 are of 34 Robert Street as the taxi passes. As I have said, they show the premises in complete darkness. As Mr Bouveng says accurately, this may not exclude a light at the back of the house. But even so, the appearance is markedly different from that presented after sunset on 28 March 2018. I have also watched the video and while it is difficult to make out passing features from the moving taxi because of the darkness, that in a way is the point. Given the subsequent change, I infer that Teah was alive within her home at 1:35 a.m. on 28 March 2018.
The evidence establishes that the occupant of flat 1/34 Robert Street, Mr Vesa Riikonen, was away at this time on "business" of some sort in the Hunter Valley and his flat was then unoccupied. Flat 3 is in a separate structure at the rear of the block. The occupant of those premises and his partner gave evidence about a disturbance in the early hours of the morning some weeks before 28 March 2018, but they could give no evidence about what happened then as they were staying at the partner's residence, not flat 3.
In the absence of direct evidence, there is a question, of course, about how Mr Green could have obtained access to Teah's home. Either using his housebreaking skills to gain entry or he may have been admitted by Teah who knew him. The latter possibility does not seem very likely given that she had made complaints about him, whether justified or not, to the social housing agency responsible for managing the units at 34 Robert Street in an attempt to be transferred to other accommodation. Those attempts fell through after Mr Green left the premises for other reasons on or about 31 October 2017.

[27]

Expert locksmith evidence

Entry through the front of Teah's home was by means of a screen security door which was fitted with a lock or latch of some kind and then through the solid front door which was white painted timber. There was a good deal of evidence about the condition of the lock on the front door. There was a rear entrance also fitted with screen and solid doors. There was some evidence of the looseness of the lock on the rear door in December 2017 on an estate agent's inspection report for the owners of the premises, referred to below.
An expert locksmith, Mr Steven Kelly gave evidence at the hearing. Unfortunately he had not been afforded the opportunity of a site inspection to examine the lock firsthand. Rather he was shown three of the crime scene photographs depicting aspects of the lock from different angles (Exhibit 29) taken on 29 March 2018 at about 7:26 p.m. Two of them are additional copies of photographs in Exhibit 20. Mr Kelly has been a tradesman locksmith for 24 years. He obtained a Certificate 3 in Metal Engineering and is obviously a very experienced expert in his field.
The photographs depict the lock and the strengthening plate and the strike plate in position on the door frame. Mr Kelly said the door frame showed signs of a previous forced entry (468.30T). I took him to mean on another, prior occasion. However, from the appearance and orientation of the locking mechanism on the door itself, which showed the back case at an angle of 45 degrees to the fixing plate, Mr Kelly said, with the latch in the strike plate, "you wouldn't be able to physically walk up and push the door open. From how its sitting off there at the moment, well, from these photos, there appears to have been some sort of forced entry" (469.10T). He said that this would not have required a lot of force to achieve, "You just use your shoulder and pretty much walk through it" (469.16T).
Notwithstanding the condition of the lock as it appears in the photographs, it would have been possible to open the door from the inside by turning the knob, but with continuous use the back case would bend at a 45 degree angle as depicted in the photographs (469.24T). Without a site inspection, Mr Kelly was not able to say which of the two possibilities of either forced entry or continuous use in a defective condition from the inside accounted for the condition of the lock as depicted in the photographs. However, it occurs to me that this may overlook the obvious point that if the lock was in the poor condition depicted in the photographs because it was loose and the back case was sitting at a 45 degree angle to its fixing plate, an intruder would not need to exert "a lot of force" to gain entry.
Mr Kelly gave the following evidence in cross-examination (471.3 - .19T): "Q. Is it possible that the door could have been in that condition, that is with the back case as you've described it at 45 degrees… and the door be operable? A. Yes, you could have. You would have to physically bend those two bits of metal back to make that, the back case, sit against the door to be able to close the door. Q. I suppose I'll ask it a different way. Is it possible that the door could have been operated for a period of time, before that photograph was taken, with the door in that state? A. It could have been, yes. Q. Albeit with some difficulty? A. Yes, very - Q. Would you agree with that? A. --hard to operate."
The "two bits of metal" to which Mr Kelly was referring are two metal tabs at the top and bottom of the end of the fixing plate protruding perpendicularly to it (469.45 - .50T). Against some judicial resistance, the Crown submitted that Mr Kelly's evidence supported an inference that Teah might not have been able to close the door because it was very hard to operate if one had to bend the metal tabs to sit the back case flush to the fixing plate to do so. But on reflection, with respect, there may be something in the argument. This would mean, of course, that the door could be closed over, but the latch would not engage with the striking plate, leaving it unlocked.
Mr Kelly confirmed that the back case would need to be pushed back into position to open and close the door (472.45 - .50T).
I repeat Mr Kelly was not able to give a definite opinion about the cause of the condition of the door as depicted in the photographs without a site inspection and examination of the lock itself in the condition depicted in the photographs.

[28]

Lay evidence touching upon the front door lock

Mr Riikonen gave evidence in the period leading up to her death Teah had told him that she couldn't open her front door because it was jammed. She was using the back door to enter and leave (359.35 - .41T). Mr David Hughes, whose involvement in Teah's death, Mr Bouveng submits, cannot be excluded, said he always used the back door to get in or out of Teah's flat. He said, "She'd never use the front door". It was his understanding that something about the screen door "was busted or something" (700.38 - .40T).
Mr Wade Carter is the de facto partner of Teah's sister, Sophie. He gave evidence that the front door would not open because the wind blew it shut and she couldn't open it again (801 - 802T). He had spoken to his father, William Carter, about it who opined that the internal mechanism of the door lock "must have fallen to pieces when the wind blew [the door] shut" (790.09). He had never inspected the door. And although Mr Kelly referred to a loose screw and a missing screw relative to the connection between the back case and the fixing plate, there is no suggestion from him, bearing in mind the limitations of his involvement, that the internal mechanism of the door was broken. Indeed, he said the knob was operable.
Mr Wade Carter was shown the photographs numbered 111, 112 and 113 from Exhibit 20, the same photographs inspected by Mr Kelly (Exhibit 29) and said, "there wasn't that damage there" (804.30T). He said that he had last used the front door about one month before Teah was killed, although he was uncertain (809T). He said in cross-examination that it was his habit to park his car around the back of the flat because Teah could not use the front door.
Ms Lisa Luckwell is Teah's mother. Ms Luckwell visited her daughter at 34 Robert Street "lots of times" (889.20T). She said (889.25T): "The door was always getting jammed, the back - the front door was always getting jammed and the back door was really loose all the time." In cross-examination she agreed that Teah had told her that the real estate agent had said Teah had damaged the front door and it needed to be repaired at a cost of $700 (891.5T).
Chloe Luckwell is Teah's cousin. She lived with Teah at Robert Street for a few months in 2017 (896.33 - .34T). It is apparent that Chloe Luckwell lived with Teah during the early months of Teah's tenancy at 36 Robert Street. She did not give any evidence of any damage to or difficulty with either front or back door lock. Chloe Luckwell did say that she would generally use the back door and Teah would usually use the front door because it was easier to get the baby's pram in and out (889.5 - 10T).
Stuart Blair was a boyfriend of Teah's sometime during 2017. He visited her at her Robert Street flat at various times of the day and sometimes stayed overnight. When Mr Blair visited Teah at her flat he used the front door (905.15T). He did not mention any difficulty operating the lock. Mr Blair continued in his relationship with Teah until "just a few days" before 4 December 2017 (918.35 - .38T).
Lavina Chapman initially said she had become friendly with Teah in or about August 2017 when Teah's daughter was about eight months old (926.35T). Ms Chapman was then living in the Petra Avenue flats. During late 2017 and the early part of 2018, Ms Chapman and Teah would see each other almost every day (927.2T). Ms Chapman and Teah smoked cannabis together at Teah's flat, "normally every day" (927.20 - .25T). Ms Chapman said that during their friendship she spent long hours every day into the night at Teah's (928.25T). Ms Chapman would use either the front door or the back door to enter and leave the flat during her visits there. She said that Teah would sometimes give her a key to enable Ms Chapman to enter through the backdoor and unlock the front door so Teah could enter with the pram. This is consistent with other evidence I have detailed about Teah's preference for using the front door.
Ms Chapman last saw Teah about one month before her death. She suffered a medical issue which caused her hospitalisation. As it happens she was discharged on 28 March 2018, the day Teah died.
Ms Chapman was shown photographs of the front door lock numbered 110, 111, 112 and 113 from Exhibit 20, three of which were shown to Mr Kelly. She recognised what was depicted in the photographs as the interior of Teah's front door. When she last saw that door about a month before Teah's death "it wasn't broken or touched", I infer as depicted in the photographs (930.5 - .15T).
In cross-examination Ms Chapman agreed that she'd actually met Teah in January 2017 (930.43T). Teah's daughter was only a very little baby at that stage (931.20T).
Ms Jodie McNamara was the senior housing manager employed by the community housing organisation which managed the Robert Street flats. She said the premises were leased from a private real estate agency (963.37T). Ms McNamara said that at one point during Teah's tenancy there had been damage to the front door, which was believed to be a break and enter. This is consistent with Mr Kelly's evidence about signs of a previous forced entry on the door frame.
Ms McNamara said that the previous glass panelled front door was replaced on 3 July 2017 with a solid door following the break and enter (970.40 - 971.5T). I would infer that the front door lock must have been replaced and properly fitted to the door on that occasion.
After some Facebook contact, Mr James Orle, whose evidence is relevant for a number of different issues, met Teah in person for the first on 26 March 2018 at South Tamworth Library, which is to the west of the Robert Street flats. He spent the night with her and left on the morning of 27 March 2018 before meeting her again later that morning. On the morning of 27 March he left through the front door. When asked about the condition of the front door lock, he replied, "to be honest I can't really remember" (108.29T). When asked again about being able to leave through the front door, he then said, "I think she said that the front door was broken, that's why we went around the back the first time" (1083.33T). He was then asked to look at paragraph [33] of the statement he made to police on 2 April 2018. Having read that statement he said, "I pushed open the door and turned the latch" (1084.17T). I understood this to be a reference to the front door. I observe the front door opens in, not out and one would pull it rather than pushing it open. He was then asked if he could remember how the latch operated and said "I turned it then pushed it towards me I think, yeah" (1084.29T). He said he "would have just pushed [the flyscreen door] open". He was then shown the photographs of the lock from Exhibit 20 and Exhibit 29. He could not identify the condition of the lock as depicted in photographs 112 and 113, but repeated Teah told him her front door was broken.
In cross-examination Mr Orle again said that when he first went to her place with Teah they went in through the back door because she told him that the front door was broken (1052.5T). Mr Orle said when he returned to Teah's home later in the morning of 27 March 2018 he entered through the back door. However, when they went out they left through the front door (1155.40 - .50T). When they returned again they re-entered through the back door and when he left later in the afternoon he did so by the front door. However, the solid door was open and it was only the screen door that he needed to open (1156.10 - .30T).
Brandon Waters was a high school friend of Teah's. They kept in touch after leaving school and he visited her at 34 Robert Street weekly (1203.30T). Usually he was alone with Teah and her baby. They had sexual intercourse on one occasion in February 2018 (1203.45T - 1204.5T). When Mr Waters visited, he was always admitted through the front door (1204.10T). He said, "The lock didn't work. The only lock that worked was on the screen door" (1204.18T). He was shown Exhibit 20, photographs 111, 112 and 113, Mr Waters said that he remembered the lock looking as it is depicted on photograph 112 or "similar to that" (1206.5T). When shown photograph 113 and asked to compare it to the lock as it was when he had used it, he said, "like, the lock was on the door. It just, yeah, just seemed to be like it wasn't really on there firmly at all" (1206.27T). He said he and Teah "didn't really use [the lock] much" and they would always lock the screen door (1206.34T).
Ms Carissa Carrol boarded with Teah at 34 Robert Street for a period commencing in December 2017 with her partner Tyson Mitchell (1238.35 - .50T). They lived there for one month (1239.45T). Ms Carrol said she only ever used the front door to come and go and she normally left with Teah as Teah did not give her a set of keys (1240.20 - .35T). Ms Carrol did not notice anything about the front door lock. She was shown Exhibit 20; photographs 111, 112 and 113. She identified the front door lock from photographs 112 and 113. But she said the lock "was not like that when [she] was living there" (1241.10 - .20T).
Teah's home at 2/34 Robert Street, as I have said was leased to the social housing agency, which sublet it to Teah, by Kelly's Real Estate on behalf of the owners. By a statement dated 14 June 2018 (Exhibit 53 - 55), Ms Leah Franks said that she carried out property inspections on 27 November 2017 and 1 February 2018. She produced her written record of those inspections. In the first inspection report (Exhibit 54) there is no mention of any difficulty with the front door lock. The back door lock adjoining the loungeroom is said to "come out" and the agent recommends that the landlord repair it. Despite the suggestion in Ms McNamara's evidence that an inexperienced property manager carried out the inspection on 1 February 2018, Ms Franks says it was her. Although the overall standard of the premises is said to have deteriorated there is no record of any problem with either the back, or front, door lock. Insofar as the entrance hall is concerned, the report says the condition is satisfactory, there is action required by the tenant in relation to damage to some of the walls, but no action required by the landlord. There is no mention of any problem with, in particular, the front door lock.
There is no gainsaying that the front door lock was in the poor condition depicted in photographs 111, 112 and 113 of Exhibit 20 (Exhibit 29) as described by Mr Kelly on 28 March 2018. Ms McNamara's evidence establishes to my satisfaction that the front door was replaced in July 2017 after a break-in, which again confirms Mr Kelly's professional impression of a previous forced entry from studying the photographs of the frame. I would infer that at the time of the replacement of the door, the lock was properly attached and fixed to the interior of the new solid front door. In general terms the body of lay evidence to which I have referred satisfies me that over a period of time difficulties developed with the condition and operation of the lock. But the suggestion in Mr Wade Carter's evidence that the door had slammed shut due to a gust of wind and could not be opened is not borne out by other evidence and therefore should be rejected. Ms Carrol was only in residence for about a month in December 2017 and January 2018 but her evidence suggests that the lock was not in the condition in which it appears in the photographs should be accepted. The lock's damaged appearance is very obvious in the photographs. Had it been like that it could not but have been picked up at the 1 February 2018 inspection, regardless of the experience of the person carrying out the inspection. After all, the looseness of the back door lock was picked up on 27 November 2017.
Mr Waters also, in substance, identified the condition of the lock more or less as it was shown in the photographs. He seems to have been a regular visitor to the premises on a weekly basis until at least early March 2018. It does not seem to me that there was any evidence of any forced entry after July 2017 which rather supports Mr Kelly's "gradual process" hypothesis, possibly contributed to by a door-slamming incident.
As unattractive as I found the argument initially, there does seem to be much to be said for the Crown's argument that as at 27 and 28 March 2018 the front door could not be easily closed so that the latch engaged with the strike plate. Hence the need for the usual practice of locking the screen door. There is no evidence of the type of lock with which the screen door was fitted. However, given Mr Kelly's opinion that it would have been very difficult to operate the knob from the interior of the home given the significant separation of the backing case from the fixing plate, it seems probable that the door could not be effectively latched. On this basis, a practised creeper, if the screen door was unlocked, would have little difficulty entering the premises either by pushing at an open door or by applying "not a lot of force" to the front door if the latch was ineffectively engaged with the striking plate.
What can be said with certainty is that the screen door was unlocked and the front door at the very least substantially ajar at the time of Teah's death. Mrs O'Connor was able to open the screen door to gain access to the home to retrieve Teah's baby.
I am satisfied that when Mr Green was in the close vicinity of 34 Robert St at around 4:15 am on 28 March 2018, the screen door was probably unlocked and the front door was probably closed over but unlatched given the difficulty of pushing the backing case into position by bending the metal tabs by hand in order to turn the knob.

[29]

The scream just before 4:20 am

Ms Donna Searle resides at 38 Robert Street, two doors west of Teah's home. In March 2018 she resided there with her partner, Mr Kim Enks, who has since died. Mr Enks was rendered paraplegic in a motor accident some time before March 2018 and for that reason, so as not to disturb Ms Searle unduly, he slept in the loungeroom which was towards the back of the house away from the street frontage. Ms Searle's bedroom was on the street frontage. Ms Searle had retired at 10:30 - 11:00 p.m. on 27 March 2018. She woke at about 3 a.m. with things on her mind; she was lying awake reading as she was unable to get back to sleep. As she lay awake one of her three cross Maltese-Terrier dogs growled "a weird sort of growl", she then "heard a scream" (112.30T). She said the scream was "very loud" and "terrifying". It was a scream she "will never forget" it was a single, protracted scream (113.45T). She said (113.48 - 50T): "It was enough to make me get out of bed and we hear a lot of screams, from over that way, you know, there's always quite a bit of that sort of noise going on, but this one made me get out of bed."
Ms Searle does not keep a clock in her bedroom, and she estimated that she heard the scream somewhere "between 4:10 and 4:15" (112.47T). As she had been reading, she was fully awake so she got out of bed straightaway, walked around her bed and looked out her wooden louvre blinds. From a photograph tendered as Exhibit 8, Ms Searle has quite a clear view to the east along Robert Street from her bedroom window, certainly extending along the front of no 36.
When she looked out the window she saw "what appeared to be a young guy running, trying to run" (my emphasis). She said he was obviously affected by something and he was holding his arms folded across his chest and moving his upper body in a rocking motion. He appeared to be saying, "Oh shit. Oh fuck". He was running west. The photographic evidence demonstrates there are large bushes on the front boundary of Ms Searle's neighbour's garden which obscured her view at (114.25 - 115.17T). When she first saw him, he was about level with the telegraph pole in front of 36 Robert Street. She saw him go past her front yard and up towards the corner of David Street (115.30T). She described the person as wearing "long shorts, like three-quarters shorts, that the young guys wear". He sounded pretty distressed or freaked out.
After the young man passed by Ms Searle went out into the loungeroom and Mr Enks told her, "don't go out there" (114.40T). But she did. She then went out to her mailbox and looked up the street towards David Street, but she couldn't see anybody and she went back inside. When she did so she "went out the back" to have a cigarette. It was then that she looked at the clock and it was 4:20 a.m. (129.10 - .15T).
In cross-examination, Ms Searle said that she didn't really expect to see a person when she went to the mailbox to have a look, "I was sort of waiting 'til they'd gone". She'd had a bad previous experience going to someone's assistance (132.20 - .30T). She could not say where the person had gone.
Mr Enks made a signed statement to DSC Simon Thorsteinsson, on 29 March 2018, which the officer recorded in his notebook. The signed statement and a transcript of it were tendered (Exhibit 10). As requested by Mr Bouveng, under s 165 of the Evidence Act, I warn myself that hearsay evidence may be unreliable, mainly because it cannot be properly tested by the normal trial processes including cross-examination. For that reason, I have approached Mr Enks's statement with some care, reminding myself that it may be unreliable.
Mr Enks remembered Teah coming and going from 34 Robert Street prior to 28 March 2018. He would see her when he was in the front yard in his wheelchair checking for mail.
He usually wakes up three or four times a night and he is normally awake between about 4 a.m. and 6 a.m. Early in the morning of 28 March 2018, he heard the "three dogs barking and making noise" (Exhibit 10, [6] - [7]). He then said: "The next thing I heard a female scream very loudly. It was really loud and harsh like something bad. It is common to hear noises around our place at night so I didn't think to ring anyone. After the scream there was dead silence. The scream came from the direction of the units at 34 Robert Street."
Although a person's sense of hearing normally includes the ability to detect the direction of sound, I do not understand Mr Enks's evidence as purporting to pinpoint the scream he heard to 2/34 Robert Street. He was simply saying it came from that general direction.
He said that Ms Searle told him she saw a male running passed their place. "She told me he was holding something and it made him run funny because he wasn't using his arms" (Exhibit 10 [8]).
Mr Adrian Kenny gave evidence by audio-visual link from Launceston, Tasmania. In March 2018 he was living at 37 Petra Avenue and he shared his back fence with Ms Searle and Mr Enks (148.44T). On 28 March 2018 in accordance with his usual routine he awoke, got up and got dressed at about 3:55 a.m. As he did every morning, after he was dressed, he went outside and wheeled his motorbike out to the front of his place in preparation for leaving for work. He sat on his back deck to finish his morning coffee and have a cigarette before leaving when he heard a loud banging noise like someone kicking a colour-bond fence followed by a scream and then silence (150.25T). About the silence, he said, "my dogs didn't even go off and they usually went off at everything".
He said he'd heard screams and noises during the late hours of the night and early hours of the morning in that neighbourhood, so he did not really think that much of it.
He thought the sound was quite close to his place, "within metres away from my house". He said the scream "was a female scream … like somebody being frightened" (150.46T). He thought that the general direction of the sound "would have been" within 30 or 40 metres east down Robert Street.
His home at 37 Petra Avenue was protected by CCTV footage and an extract of footage from 28 March 2018 of Mr Kenny wheeling his motorcycle was tendered (Exhibit 12). After an adjustment, the time Mr Kenny wheeled his motorcycle out is shown on the exhibit 4:11 a.m. In cross-examination Mr Kenny agreed that he had told the police that he heard the scream at about 4:20 a.m.
In submissions, Mr Bouveng emphasised that each of the three persons who gave evidence of the scream at or before 4:20 a.m. were already awake when they heard it. He emphasised that no witness was called who was awoken by the sound of the scream described. In particular, neither Mr O'Connor nor Mrs O'Connor said anything about hearing a scream next door. The second point was that none of the witnesses who heard it thought it necessary to call the police about it. They all said that such noises occurred from time to time. The emphasis which they now placed upon it was informed by hindsight given the public consternation in Tamworth following news of Teah's death, according to the argument.
The fact that each of Ms Searle, Mr Enks and Mr Kenny were awake might be a factor which bolsters the reliability of their perception of the scream when they heard it. They are all likely to have had their wits about them when they heard it. Although it's impossible for anyone to say, that the scream came from inside Unit 2/34 Robert Street and Ms Searle's sighting of a young man trying to run from that direction persuades me that the sound of the scream is highly consistent with the Crown case that Teah was murdered just before 4:20 a.m. and there is a significant probability that she was the person screaming.
Ms Searle in further cross-examination described the person she saw as "tallish and thin" (138.8T). She said that she "used to be 5'11" and she thought the person she saw was "not as tall as me". She estimated "say … 5'8, 5'9" (138.20T). While that description may fit many people, it is not inconsistent with the appearance of Mr Green in March 2018.
I appreciate that Ms Searle's description may not match Mr Green precisely. Her evidence that the young man was wearing three-quarter shorts or pants (134.40 - .47T) does not match the description of the clothing that Mr Green was wearing that night. At the same time, Ms Searle said that the streetlight was behind the person as he approached and he was in silhouette (134.30 - .38T). But she also said that the person appeared to be having "some issue with moving". She volunteered that it was "like a stagger almost" (135.5 - .13T). To me, that staggering movement is consistent with what I have already said about Mr Green's mode of movement as depicted on CCTV footage.

[30]

Aftermath

As I have said, after his return to the Robert Street flats complex over a fence at its eastern extremity at 4:22 a.m., Mr Green left Unit 7 differently attired at 4:56 a.m. to make what I have found is his second attempt at 48 Robert Street, returning at a run at 5:09 through the eastern carpark. He left the premises for the last time at 5:16 a.m. and is next picked up on CCTV footage from 26 Central Avenue at 5:48 a.m., which is south of Robert Street, almost directly south of 48 Robert Street. He was walking east in the direction of the southern continuation of David Street.
Ms Cheyenne Waters lived at 15 David Street on 28 March 2018, a short distance from its intersection with Central Avenue. Ms Waters said she was woken up early on 28 March 2018 by Mr Green knocking on her front door (951.14T). He asked to use her phone "to find a ride to the train station". She thought Mr Green may have arrived at about 8 a.m. (952.25T). Ms Waters lent Mr Green her iPad and left him in the loungeroom while she went back to bed. She did not see him again, when she awoke 40 minutes later Mr Green was gone, as was her iPad. Later that day, by use of her "find my iPad application on her phone", she saw that it was on the way to Sydney (953.49T). The iPad was eventually returned (954.15T). Ms Water's grandmother retrieved it from Mr Green's Callala Lane Home.
Ayla Hemmings worked at a business named the "Corner Shack" in March 2018. It is located on the corner of Hillvue and Vera Streets, South Tamworth, which is due east of Ms Waters's place. The Corner Shack is a convenience store and takeaway business. Ms Hemmings knew Mr Green because they were in the same year at school. She had not seen him for many years as at 28 March 2018. At about 9:15 a.m. on that day Mr Green came to the front door of the shop asking for a taxi to be called for him. He was "extremely agitated and "darting back and forth" (1229.25T). Ms Hemmings tried to oblige him and went out the back of the shop to get her phone, but when she returned, he said, "don't worry about it" and left. Ms Hemmings said that Mr Green had a certain "spring in his step" when he walked (1231.15T).
Ms Susan Wilkinson worked at the Hillvue Road Superette, a business also located on the corner of Hillvue Road and Vera Street. A man in his thirties came in asking her to call him a cab. She said he was "pretty aggravated about it" and wanted the cab immediately (1233.5T). She attempted to oblige him. She said she'd been at work for a couple of hours, having started at 6 a.m. (1234.10T). She called the cab for him. She said he was very agitated, very nervy and jumpy (1234.13T).
Mr Green departed Tamworth for Sydney from the Tamworth Railway Station at 10:35 a.m. arriving at Hornsby at 4:28 p.m. from where he caught a train to Central, arriving at 5:36. Mr Green stayed overnight with an aunt at Wiley Park on Thursday 29 March 2018. He travelled by train back to Scone on 30 March 2018, staying in Scone overnight whence he was picked up by his mother on the morning of 31 March 2018 returning to Tamworth.
The Crown did not rely upon Mr Green's demeanour to Ms Hemmings and Ms Wilkinson or his departure from Tamworth for Sydney as evidence of consciousness of guilt, and I will not take it that way. As is apparent, he voluntarily returned to Tamworth on 31 March 2018 and was arrested on 5 April 2018. Although not strictly relevant at this stage, it is common ground that Mr Green has suffered from paranoid schizophrenia since the age of 18, and as at 28 March 2018 his condition had not been treated for a period of months. His aggravation, jitteriness and darting to and fro could possibly be symptoms of that disease. On the Crown case, he faces three charges of various degrees of seriousness and it may have been difficult to attribute any "flight" to one or other of them. I gather the evidence was led for the purpose of completing the picture.

[31]

The case for Mr Green

I have summarised the case for Mr Green at [122]-[123] above. It is necessary to say something more about it now.
Mr Bouveng made quite powerful submissions in relation to the "scene of the crime" evidence arising out of the police investigation at Teah's home. He emphasised that neither the crime scene examination nor search of Teah's home, nor examination and search of Mr Green's home produced any forensic evidence linking Teah to Mr Green or Mr Green to Teah. He submitted that no evidence probative of Mr Green having committed the murder emerged from those examinations. In this regard, he made the point that there is a degree of inconsistency in the Crown case inasmuch as Mr Green managed to deposit traces of his DNA on the fuse switches at 48 Robert Street, but not when he allegedly violently entered Teah's home and stabbed her three times. He also pointed out that Teah suffered no defensive wounds in the attack, which Mr Bouveng submitted suggested that her assailant was someone that she had voluntarily admitted into the premises and the attack was sudden and entirely unexpected. He submitted that this did not match the picture of a sudden violent intrusion, or "a creep gone wrong."
He emphasised that the blood stain experts, Det. Snr. Sgt. Flippence (1443.40T ff) and Dt. Sgt. Peter Buning (Exhibit 81) as well as the forensic pathologists, Dr Clifton and Professor Duflou gave evidence to the effect it was highly likely that the assailant would have blood deposited on their person, yet no trace of Teah's blood was found on the person of Mr Green nor any of his property examined and seized during the search at Callala Lane.
He invited me to consider the crime scene photographs very carefully. Teah's body was found in the kitchen rather than at the front door. She was lying on her back with her feet toward the front door and her head toward the kitchen sink. Her arms were outstretched and her legs somewhat apart. The blood stain evidence tended to suggest that the attack occurred in that location near the stove which was to Teah's right of Teah's supine body. She was fully clothed with bra, underwear, socks and an apricot long sleeved top and black jeans in the ripped fashion as outer garments. Her belt buck was undone, but none of her clothing was in any way disturbed or dishevelled.
There was a home baked cake with portions sliced from it and the blue handled knife I have already referred to, lying on top of the cake which was still in the baking tray. A tub of margarine was on the bench next to the baking tray near the stove. And an electronic jug was on the other side of the stove on the bench. There were a number of dirty dishes piled up to be washed next to the sink. Teah's baby had been attired in singlet and a disposal nappy. The latter had fallen off, soiled. Movement of the baby around the kitchen, and to some extent the adjoining entrance hall, had "contaminated" the crime scene by touching the cupboards with her bloodied little hands and spreading her mother's blood across the floor with her little feet. Mr Bouveng's principle submission was the scene as depicted by the photographs was a domestic one, suggesting the assailant was someone who had been admitted to Teah's hospitality sometime in the range of 8 to 36 hours prior to 9:30 p.m., 28 March 2018, allowed by the opinion of the experts. He submitted that the scene was not consistent with death inflicted by an unlawful intruder in the early hours of the morning before dawn.
Accepting that motive is not a legal element of the crime of murder, Mr Bouveng also submitted that Mr Green had no reason to stab Teah. In the absence of motive, Mr Bouveng submitted that the Crown, by coincidence reasoning, are attempting to manufacture a reason why Mr Green would have stabbed Ms Luckwell.
He argued, in particular, that the "grievance evidence" arising out of the social housing agency complaint forms (Exhibits 50, 51, 52 and A) were concocted by Teah to provide a justification for a transfer to better housing. As her rent was in arrears there needed to be a special reason for the move.
He also argued that Mr Phillip Wadwell's evidence about Teah's threats to falsely report him to police for bashing and raping her, and false charges of assault faced by Stuart Blair, later dismissed, demonstrated that Teah was prepared to level false charges against people when her wishes were thwarted.
As the complaint history was admitted as an exception to the hearsay rule and could not be tested and given the evidence of Mr Wadwell and Mr Blair, I should not place weight on the complaints made by Teah about Mr Green.
Mr Bouveng made a number of complaints about the lack of rigour in the police investigation and gave various examples; in particular, as I have said, he submitted that investigation and the evidence at the special hearing did not exclude the reasonable hypothesis that one or other of Wade Cater, David Hughes, James Orle or Mathew Bell was the culprit. Moreover, there was evidence of unknown persons being on the driveway of 34 Robert Street at the material time (see Exhibits 45, 112 and 113). Moreover, there was evidence of sightings of Teah on 28 March 2018, which was inconsistent with the Crown case that she was killed just before 4:20 a.m.

[32]

The grievance evidence

On 11 October 2017, when Mr Green was occupying 1/34 Robert Street, Teah complained that Mr Green was attempting to seduce her, was violent, sexually assaulting her, and choking her until she passed out. She said that there had been a few falling outs and harassment (Exhibit 50).
On 25 October 2017 she complained Mr Green had been violent and abusive. She said he had broken her oven. That incident was said to have occurred two and a half weeks previously, which may correlate with the earlier complaint (Exhibit 51). At the suggestion of the officers of the Social Housing Agency she completed an application for assistance which was essentially an application for transfer. It is clear that part, of her complaint related to what she regarded as harassment from Mr Green (Exhibit 52).
She also completed an application for transfer, which I take to have been completed at about the same time. Instead of dating the application she wrote her date of birth. In that document the complaints she made about Mr Green were "leaving needles, bottles/broken glass around, bouncing basketball at late hours of the night" (Exhibit A). There was no mention of sexual assault, harassment or violence. In my opinion, Mr Wadwell and Mr Blair gave fairly straightforward evidence about Teah having, on the one hand, threatened false complaints about Mr Wadwell and, on the other, Mr Blair having been charged with assault against her. Mr Wadwell was so concerned about the matter he contacted police about it. And as I have said, the charges against Mr Blair were dropped.
I accept Mr Bouveng's argument that the evidence of Ms Casey Stace did not rise above proof that Mr Green found Teah attractive and had an interest in her for that reason. Her evidence contained no suggestion that he harboured any resentment or other harmful attitude towards her, even if he may have been confused that the attraction was not mutual.
I did not understand the Crown to put particular emphasis on this evidence during the final address. However that may be, I accept the force of Mr Bouveng's submission and I have not placed any reliance upon this material in my consideration of the matter.
On the other hand, the thrust of the Crown case is that Mr Green was gaining access to Teah's residence on a "creep". The inference that I am asked to draw is that she detected his presence and went to the front door, putting the light on, and having been disturbed he attacked her with a knife he was carrying to avoid detection and apprehension. Although the Crown cannot point to direct evidence of this, the Crown say the circumstances are consistent with either Teah attempting to get away when she saw the knife and being struck from behind or holding a child, she was in no position to defend herself from the stab wounds she received, while facing her attacker, she moved or fell backwards into the kitchen as she was being stabbed. Such a scenario would account for her location in the kitchen and would not require any particular motive on the part of Mr Green other than to avoid detection and get away.

[33]

The state of the crime scene - Teah's movements on 26 and 27 March 2018

To evaluate the argument that the most likely or at least a likely scenario is that Teah was attacked and killed by a person she was entertaining at home, it is necessary to deal with certain aspects of the evidence which were not controversial, including her movements on 26 and 27 March 2018. I have already said in my introduction that the last reliable evidence of Teah being seen alive is at about 5:45 p.m. However, implicit in the submission advanced by Mr Bouveng is that someone she knew and whom she was happy to see visited her after that time on 27 March 2018 and during the visit killed her in a crime of passion.
From the evidence of Lavinia Chapman, it is obvious that Teah had a daily cannabis habit. Cannabis is, notoriously, a drug to which the user may become habituated and increased consumption is required to achieve the "high" that the user desires. Ms Chapman also gave evidence that when she and Teah were out of funds to buy cannabis for themselves, Teah would invite a person to visit who may be prepared to "shout" them.
The evidence discloses that her de facto brother-in-law Wade Carter and David Hughes were both persons from whom Teah could source cannabis.
As I have said, after some contact on Facebook, Teah and James Orle met in person for the first time at South Tamworth Library on 26 March 2018. As always, Teah was accompanied by her baby who was in the pram. The footage shown of their meeting depicts a certain awkwardness between them which perhaps might be attributable to the consideration that James Orle was then only 19 years of age.
However, after they made contact, they left the library together. Teah did not then possess a mobile phone. At one stage she had borrowed two mobile phones from a male friend, Josh Moore with whom she had an on-again, off-again relationship. At other times she would make contact with friends via Facebook on the public access computers available at the library or by borrowing the phone of whomever she was with at the time.
After James Orle and Teah left the library, Teah made contact with Wade Carter to obtain cannabis. This involved a couple of meetings with him, and James Orle accompanied her. After Teah had secured the cannabis she and James Orle went back to 34 Robert Street. James Orle spent the night. They had sexual intercourse more than once. According to James Orle, the last occasion being after awakening on the morning of 27 March 2018. James Orle's evidence was that he left Teah's home on the morning of 27 March 2018 while she was showering, but they arranged to meet later, which they did some time mid-morning.
Teah apparently had exhausted the cannabis she obtained from Wade Carter and wishing to obtain more, she visited David Hughes. James Orle accompanied her. I infer that, as Teah was then very low in funds and her social security payment was not due until after midnight that day, she was hoping that David Hughes would be prepared to "shout". I interpolate that Mr Orle apparently withdrew $240 from his bank account, but did not offer then, as he had not offered on 26 March 2018, to shout.
Mr Hughes was apparently prepared to oblige (706.32 - .39T). Teah, James Orle and David Hughes met up outside David Hughes' home in Susanne Street, South Tamworth. David Hughes and James Orle had not previously met each other. Susanne Street is west of the South Tamworth library and while heading east to Teah's home on Robert Street, David Hughes went into the IGA near the library and bought some chocolate for Teah's child. This occurred at 11:43 a.m. (171.40T; Exhibit 43).
They returned to Teah's house at about midday and David Hughes, Teah and James Orle smoked some of the cannabis that he provided. After a short time, Teah sat next to David Hughes and James Orle left. David Hughes thought "he got a bit shirty" (715.15T).
The cannabis apparently induced a headache in David Hughes and he too left to go home "to lay down and get some relief from the headache" (715.42T).
Teah sent him a message at 4:32 p.m. in a type of code, but enquiring whether he had any cigarettes she could use to "spin" out the cannabis (716.20 - .45T). He did not respond. At 4:48 he had a missed call from Teah. Other evidence shows at the time that message was sent and the call was made, Teah may have been in the company of her de facto brother-in-law, Wade Carter, and using his phone. They drove to David Hughes's Susanne Street home.
David Hughes said Teah knocked on the door, but he had been laying down trying to resolve his headache and by the time he got to the door he saw Wade Carter's vehicle driving away. The next message he wrote to Teah was on 28 March at 5:30 p.m. in the following terms: "I came back down yesterday afternoon and you didn't answer and I came back today and knocked and no answer, so [I don't know] what's going on. I'll see when I see you next, I suppose" (717.25 - .40T). When asked about that message, he denied that he'd gone to Teah's place again on the afternoon of the 27th, "that was a lie" (718.5T). He said he visited Teah's house at 5:30 p.m. on Wednesday, 28 March 2018. He went to the back door and knocked. After he received no answer he went to the front door. He noticed that the wooden door was open, but the screen door was closed. He knocked on the wall and called out Teah's name, but having received no response he left and the sent the above text message. He did not mention whether a light was on (718.10T; 720.5 - .45T; 721.30T).
Mr Hughes said that when he left Teah's home on 27 March 2018, all the cannabis that he had been brought had been smoked (737.45 - .50T). Mr Hughes' evidence was that when he received the message requesting a cigarette at 4:30 he assumed that Teah must have had more cannabis and wanted a cigarette to make it last longer (739.15 - .25T). David Hughes denied being jealous of James Orle (740.45 - 741.10T). David Hughes denied that he went to Teah's house on evening of 27 March 2018, his message, and certain CCTV footage evidence referred to below, notwithstanding.
As the evidence I have reviewed from Mr Hughes indicates, Teah spent time in the company of her de facto brother-in-law on the afternoon of 27 March 2018. He picked her up from the carpark near the library at about 4:20 pm. They drove to David Hughes's place, but he did not respond to the knock on the door. Wade Carter then drove Teah and her baby to McDonalds, where he purchased some refreshments for Teah and her child. While at McDonald's they were seen by Teah's sister, Sophie Luckwell, who was travelling on the bus with her children, having been to a medical appointment in central Tamworth. When she saw them together, she thought the worst and telephoned Wade Carter to accuse him of having an affair with Teah. When she returned home, she prepared to take the children to her mother's home.
Wade Carter dropped Teah and her child at Teah's home after picking up something at a chemist shop at about 5:30 p.m. He then returned to his home. He denied going back to Teah's home later that evening.
As I have said, Teah walked around to the Petra flats, presumably looking for James Orle. This was her second visit there that afternoon. She had called in there at about 4:10 pm, I would infer, looking unsuccessfully for James Orle. When she did not find him the second time, she returned home. She had also sent him a message, presumably on Wade Carter's phone telling him that she missed him. He too denied going to Teah's later on the 27th.
Part of the domestic scene upon which Mr Bouveng relies for his argument is not only the baked cake, but also the crime scene photographs showing a bag of what appears to be cannabis and a full cigarette lying on the table of the spare room (Exhibit 20; photograph 88 and 98). From these Mr Bouveng argued that Teah had both cannabis, and tobacco to make it last longer. The submission was that someone must have visited after she was last seen at about 5:45 p.m.. I interpolate that given that she was in the company of Wade Carter later that afternoon it does not follow that someone else must have visited her in the evening. Wade Carter may have supplied that cannabis to Teah. But there are other aspects of the argument I will come to when dealing with Mr Bouveng's argument concerning other persons of interest.
As things stand then, there is no evidence of any further sighting of Teah after about 5:45 pm on 27 March.

[35]

Matthew Bell

I will commence with Mr Mathew Bell. Matthew Bell was part of the milieu that Mr Green mixed with in South Tamworth. He spent some time in the early hours of 28 March 2018 in the company of Mr Green. I have mentioned in passing a trip to the service station on Goonoo Goonoo Road a little after 1:30 a.m. Mr Green, Mr McCarthy and Ms Russell were at the front of the Robert Street flats when a white Commodore drove up and stopped. The three occupants, being William Brown, Matt Bell and Jason Clark were on their way to the service station. Mr Green decided to join them and he was in their company until his return at about 1:50 a.m. There are various iterations in the evidence, but Mr Green then resumed his association with Mr McCarthy and Ms Russell and Mr Bell travelled with the others to an address at Cossa Street, West Tamworth, perhaps via the residence of a dealer in ice.
Importantly, reliable CCTV footage in evidence places Bell, William Brown and Christopher Jones, the resident of those premises, at the Cossa Street premises, from about 2:40 p.m. until around 6:30 a.m. when he is picked up by CCTV cameras at 154 Robert Street, heading east in the direction of the IGA. He is in the vicinity of the Robert Street flats at about 6:40 a.m.. Later in the morning of the 28 March, he is seen in the company of Benny McCarthy and Shinara Russell, shopping in central Tamworth.
On this objective evidence alone, he just does not seem to have had the opportunity to kill Teah. He was certainly nowhere near 34 Robert Street at about 4:20 a.m., which on the Crown case was the time of Teah's death.
Mr Bell knew Teah because she had grown up across the road from his place and he was friendly with her older brother. But he said in relation to Teah "there was pretty much no relationship" (1274.29T). He had never spoken to her in 2017 or 2018, although he had seen her walking up and down from her home to the IGA. He said he would see her making that journey "everyday … for the last two months … before she passed away" (1274.45T). Mr Bell admitted to normally carrying a knife and the footage I have referred to at times shows him handling a knife at the Cossa Street address. A Jarvis Walker knife with a blue handle recovered by police during the investigation (Exhibit 80 - 89) had DNA from three individuals, Mr Bell being the major contributor (Exhibit 80A; page 36). But DNA testing on the tip and blade of the knife was unsuccessful. When shown a photograph of the knife during their joint evidence, Dr Clifton and Professor Duflou thought it unlikely to be the murder weapon on account of the thinness of its blade (Exhibit 93).
The CCTV footage involving Mr Bell depicts him wearing the same clothing during the early hours of 28 March 2018 and throughout the day and afternoon. He apparently had no need to change his clothing because of blood splattering. It appears that he neither had the opportunity nor the means, always accepting that the knife used to kill Teah was likely to be of a fairly common variety.
Having said that, Mr Bell was a very unsatisfactory witness. He frequently admitted to having lied to police, in common with other witnesses in the case, especially those the subject of Mr Bouveng's particular scrutiny.
The case against Matthew Bell seems to be that he was resentful that Teah would not stop and talk to him when she spoke to others, and he made a number of boastful statements in relation to the matter, which implied that he was involved. Mr Dwayne Langenbaker has known Mr Bell for more than 20 years. In his statement to police dated 2 April 2018, he said that Mr Bell was at his place on the evening of 28 March 2018 when they heard police sirens. Mr Langenbaker's sister telephoned to say, "that something happened on Robert Street" (Exhibit 91 [11]). When Mr Bell overheard Mr Langenbaker saying to his sister on the telephone that the police cars were between Robert Street and Susanne Street, Mr Bell commented, "No they would be up near the church". In evidence Mr Bell denied making this statement. Mr Bouveng submits I should accept Mr Langenbaker's evidence and reject the denial. He also submits that the reference to the church is a reference to St Edwards Primary School which is across the road from 34 Robert Street. The school building supports a spire or steeple. Mr Bouveng submits that Mr Bell could only have known this if he was involved in Teah's murder. However, as the Crown submit, there is no evidence that there was any chapel at the school, no evidence that Mr Bell was aware of its existence if there was one, and no other witness referred to St Edwards as the church. It was always referred to as the school.
On Sunday 1 April, Mr Langenbaker and Mr Bell had another conversation (Exhibit 91, [21]). Mr Bell said that people were saying that he was the perpetrator. He said, "I only seen her on Robert Street and walked her home". He also said, "They found my knife". Mr Langenbaker located a black jacket that Mr Bell had left at his place on a prior occasion. He observed a brown stain near the pocked which he assumed may be blood. He took the jacket to the police station. There is no suggestion of the results of any forensic testing linking the jacket to Teah's death. Matthew Bell was also said to have taken a blood-stained knife to the home of another witness, Cassandra Bird, which he denied. And having said to Benny McCarthy and Shinara Russell that his fingerprints would be on the murder weapon (1341.15T). He denied such statements.
He was cross-examined about his record for domestic violence and violent offending.
I am prepared to accept that Mr Bell may well be a thoroughly unsavoury character and an unreliable witness. I certainly accept that, in a bizarre way, he was big-noting himself, putting himself in the frame with regard to Teah's death. But apart from his own unreliable statements there is just no evidence in my opinion implicating him. In my view, any suggestion of his involvement has no proper foundation in the evidence and does not rise above conjecture or speculation.

[36]

David Hughes

I have already made mention of David Hughes when dealing with Teah's movements on 27 March 2018. Mr Bouveng pointed out that Mr Hughes was in a sexual relationship with Teah. They had spent the day together on Sunday, 25 March 2018 and he had stayed at least part of the night with her. Although he said he spent the afternoon and evening of 27 March 2018 at home nursing his headache, CCTV footage taken only minutes after Wade Carter and Teah left his Susanne Street address shows him walking west along Robert Street. He is seen returning heading in the direction of Susanne Street a few minutes later
He has no alibi for the evening of 27 March and morning of 28 March 2018. Although at that time he was residing with his mother for whom he was said to be a carer. She has since passed away.
There is also the matter of the message of 5:30 p.m. on 28 March 2018 referred to at [246] above where he said he had knocked on Teah's door on the afternoon of 27 March. Mr Hughes, as I have said, claimed that was a lie and I accept it is difficult to understand his explanation for that. He was also seen on CCTV footage at 5:18 p.m. at the IGA at Robert Street buying alcohol placed in a brown paper bag. Mr Bouveng submits that from there he went to Teah's place. I interpolate that it is only a few minutes' walk from the IGA to 34 Robert Street. And he is picked up by the Robert Street flats' cameras heading east in the direction of Teah's home at 5:21 pm. Teah then was with Wade Carter and not home. Mr Hughes may have waited for her for a short period because he is not seen again until 5:31 pm heading west along Robert Street in the direction of his home in Susanne Street. He is last seen at 5:34 pm still heading west. I am not satisfied that he saw Teah again that day. He was probably lying when he said he did go to Teah's again on 27 March 2018. But it was of no moment. He did not see her.
Ms Kristen Searle, the daughter-in-law of Donna Searle, arrived at her mother-in-law's house at 5:45 p.m. on 27 March 2018 to pick up her children who had been with their grandmother that day. As she pulled up in Donna Searle's driveway, she happened to look down Robert Street towards 34 Robert Street and she said she saw "a lady walking a red pram towards the block of units". She described the person as a "young mum". This is the first time she had seen Teah. And, of course, the timing accords with the evidence of Mr O'Connor. When she got out of her car, she looked down the road again and saw a male of small to medium build with a stubbly beard standing in the front yard of the units. The male was holding the type of narrow brown paper bag in which takeaway liquor is supplied. She heard the male and female talking to each other. Although she could not hear what was said, from the body language and the tone of the conversation she gathered they knew each other. After speaking with Mrs Searle, by the time she left the male and female were gone (Exhibit 61).
Having regard to the CCTV footage, I do not accept that it is possible that the male was David Hughes. Kirsten Searle's evidence is unchallenged. Naturally, Kristen Searle did not know Mr Hughes and her identification of him is uncertain. But, if it was him, Mr Bouveng submits it would explain the marijuana and spin on the table in the spare room. But there was no evidence from Ms Searle that the male person actually entered Teah's home. David Hughes's motive is said to be sexual jealousy given Teah's interest in the younger James Orle. However, in evidence he said Teah was a young woman and she was entitled to do as she pleased. This, I thought, had the ring of truth to it in terms of his attitude. The evidence certainly demonstrates, and I mean no disrespect, that Teah was an attractive, sexually active young woman with no shortage of admirers.
There is evidence that Mr Hughes was attired quite differently from the clothing described by Ms Searle on 27 March 2018. Still photographs from the security CCTV footage at the IGA show him wearing a dark blue t-shirt with a motif and red long pants (Exhibit 43). Anyone may change during the day, but it seems unlikely in David Hughes's case. Other witnesses claim to have seen other persons in the vicinity of Teah's unit. A Mr David Haigh, who resides in Robert Street, claimed to have seen Teah walking with an Aboriginal man, aged about 28 to 30 years late on Monday afternoon. He said they seemed to be arguing because Teah had a frown on her face. Ms Kay Creanor who did school crossing duty at St Edwards' said she saw two nicely dressed Aboriginal males on the afternoon of 28 March 2018 when she was on duty between 2:45 p.m. and 3:45 p.m. glancing in towards Teah's front door. Shane Gillin (Exhibit 112) claimed to have seen an Aboriginal man in his 20's walking into the driveway of Teah's residence at 5:20 p.m. on Wednesday 28 March. Mr Tony Mitchell (Exhibit 113) claimed to have seen two males in the driveway of 34 Robert Street at a time he does not specify on 28 March 2018.
For what it is worth, Mr Hughes appearance on the CCTV footage does not fit Donna Searle's description, of the person she saw just before 4:20 a.m. on 28 March 2018. Like so many others who featured in this case, he does have a record for crimes of domestic violence, but there was no suggestion that he was ever abusive in his relationship with Teah, whatever the true nature of it. He also contacted police to tell them of his relationship with Teah on 2 April 2018 (Exhibit 33). If the hypothesis for the message at 5:30 p.m. on 28 March is the deliberate laying of a false trail, it may have been rather undone by that contact with police, which was bound to render him a person of interest in their investigations.
I do not accept the person seen by Kirsten Searle could possibly have been Mr Hughes. The person seen certainly appeared to be someone known to Teah. There is no suggestion that that person stayed or was invited inside
The object of Teah's particular interest at that time seemed to be James Orle. She had twice attended his home that afternoon and found him absent. She also messaged him at 3:34 p.m. saying, "Oii dick miss you xox", which message James Orle did not respond to until 29 March 2018, a point to which I will return.
It does not seem very likely to me that the person Kirsten Searle saw was David Hughes. I accept he was probably there for a short time before Kristen Searle arrived and while Teah was at the Petra Avenue flats. I accept that he actually went to 34 Robert Street again at about 5:30 p.m. on 28 March 2018. I am satisfied he would not have done so had he known that Teah was dead and he was the perpetrator.
I am not satisfied that the evidence supports a reasonable hypothesis that he is the perpetrator, even if his evidence was not entirely truthful.

[37]

Wade Carter

As I have said, Wade Carter was Teah's de facto brother-in-law. He was also a person who supplied her with cannabis on a regular basis. As I have demonstrated above, he supplied cannabis to Teah when she was with James Orle on Monday 26 March 2018 and spent time with her on the afternoon of 27 March 2018 between approximately 4:30 p.m. and 5:30 p.m. Mrs Creanor, the crossing guard at St Edwards had become familiar with Wade Carter's blue SUV coming and going from the driveway at 34 Robert Street. She said he always drove up to the driveway and around the back of the flats. She saw Teah in the car from time to time. She said that she would see Teah at least two to three times per week. She did not see her at all on the morning of Wednesday 28 March 2018, but she heard Teah's baby making noises at some point (Exhibit 46 [11]). Mrs Creanor remembers that the blue SUV known to be Wade Carter's vehicle drove up the driveway and around the back while she was on duty that morning. A short time later he reversed out and left.
On the CCTV footage evidence, we know that Mr Carter drove his vehicle along Robert Street in the direction of Teah's residence at 8:14 a.m. He was picked up on the Robert Street flats cameras. He is seen returning, in the opposite direction 3 minutes later. This, of course, accords with Ms Creanor's evidence. The CCTV footage evidence also shows Wade Carter's vehicle heading the direction of Teah's residence via Petra Avenue at about 5:11 p.m. on 28 March 2018. Again, he is seen returning from the direction of Teah's residence at 17:14 p.m.
I have already made clear that from seeing Teah and Wade Carter together on the afternoon of 27 March 2018, Sophie Luckwell was convinced they were having an affair. Any doubt about that is entirely dispelled by Exhibit 26, a screenshot taken by her cousin of a message posted on Facebook by Sophie at 5:39 p.m. She said the same thing to Police officers when she arrived at Teah's place after Teah's body had been discovered on 28 March 2018 (402.10 - .30T). A full exchange disclosing Sophie's thinking is set out in the exchange with her aunt, Eileen Murray (Exhibit D).
Wade Carter denied to his partner that he was having an affair and was not forthcoming about the matter in evidence. He maintained that he had not had sex with Teah more than once. By the time of the hearing before me, he apparently had admitted this to his partner. I have my doubts about the veracity of his answers in that regard, but my suspicion does not prove the contrary. Apart from Ms Creanor, others saw him at Teah's place very frequently. Mr Riikonen, for instance, said his vehicle was at the premises "a couple of times a day" (359.23T).
There is no doubt that he lied to police initially about the true nature of his relationship with Teah.
When he arrived home his partner on 27 March, Sophie, was still there but they argued, of course, and she took the children to her mother's. The effect of this, according to Mr Bouveng, is that Mr Carter has no alibi after about 8 p.m. He had visited his friend, Phil Baldwin at the latter's place of work at about 7:45 p.m. and confided in him about his "women problems". He also rang Triple-O at 8:59 p.m. on 27 March 2018 to report a fire he had incidentally seen on Tingira Street (1702.25T). He then returned home. He then was able to speak to his partner on the telephone where he lied, telling her that he did not sleep with Teah (1703.10T). During the evening he had two conversations with his father.
There was much controversy about a text message he received from his father at 6:32 a.m. on 28 March 2018, saying "job's done" (1705.10T). Wade Carter's father, William, lives in Barabar, about a good hour's drive out of Tamworth. I interpolate that when Mr William Carter gave evidence about the message, he was singularly unimpressive, and it was apparent that he had no recall of it and was giving a version which had been discussed with his son.
It does seem to be accepted that Wade Carter and his father were working on a "one tonner" at the father's property during this period. The message was said to relate to an aspect of that work. Wade Carter's explanation was that it related to welding the engine mounts (1705.20T). And I had some doubt about that. However suspicious the message sent and received about two hours after what the Crown say was the time of Teah's death, it does not rise above that.
I did find Mr Wade Carter a somewhat evasive witness. My impression was there was a high proportion of "I don't knows" and failures of memory.
Mr Bouveng submitted that Teah's murder had all the hallmarks of a crime of passion. Mr Wade Carter probably had an ongoing affair with his de facto sister-in-law and knew that she was seeing other men, including David Hughes and James Orle. Teah would have undoubtedly admitted him to her home had he shown up there on the evening of 27 March 2018. The motive may have been to put an end to his domestic troubles, of which he was the author.
I am not satisfied that this is a reasonably plausible hypothesis available on the evidence. Had he murdered Teah on the evening of 27 March 2018 or had he arranged through his father for someone else to do it on the early morning of 28 March 2018, he would hardly have shown up at Teah's place at 8:17 a.m. and again at about 5:15 p.m.. Mr Bouveng points to a sudden halt in the messages passing between Wade Carter and Teah after 27 March 2018 and again this might give rise to some suspicion.
However, it is apparent to me that Wade Carter had decided on the tactic of denial to his partner; he wanted their relationship to continue; and he was determined to "tough it out". In my opinion, it is much more likely that he attempted to see Teah in person in the morning and afternoon of 28 March 2018 to seek to persuade her that if Sophie accused Teah of having an affair with Wade Carter, Teah too should flatly deny it.
Moreover, Wade Carter seemed to drive everywhere and his vehicle was well known in the vicinity of Teah's home. He had access to other vehicles. However, it seems to me strange that were he the perpetrator there is no evidence of his attendance whatsoever between dropping Teah off at around 5:30 on the 27th and his attendance at her place at 8:17 a.m. on the 28th.
I am not satisfied that the case against Wade Carter rises above suspicion.

[38]

James Orle

Mr Bouveng submits that the case against James Orle is the most compelling of all the matters he has raised against the other persons of interest. Mr Orle gave his evidence in two parts. He initially gave his evidence on 13 July 2021, but his evidence was interrupted by him suffering a seizure (689.34T). His evidence resumed on 21 September 2021. Mr Bouveng submits that even were I to be satisfied beyond reasonable doubt that the fatal attack on Teah occurred at just before 4:20 a.m. on 28 March 2018, James Orle cannot be excluded.
I have recounted the evidence in relation to Mr Orle up until he leaves Teah's place early in the afternoon of 27 March 2016, leaving Teah alone with David Hughes. The elements of the case against Mr Orle consists of the following matters: 1. He was the male Teah was most interested in at that time, as demonstrated by her attempts to make contact with him after David Hughes left on the afternoon of 27 March 2018; 2. Initially when asked what had happened after he had left Teah's in the early afternoon, he said he went home had a shower, "and then … I am pretty sure I went back there" (1107.20T). He later resiled from this evidence. 3. He lied to police about when he last saw Teah (1119.25 - .30T). He proffers an alibi about staying at the home of his aunt, Rita Orle in Links Avenue between the evening of 27 March and 29 March 2018; 4. He had a criminal record for crimes of violence including for threatening to stab a person while he was carrying a knife in 2015; 5. The failure to respond to Teah's message at about 4:30 on 27 March 2018 until 29 March 2018; 6. And most significantly, there was compelling evidence suggesting that James Orle had had sexual intercourse with Teah within 6 to 12 hours of her death.
I will not deal with these matters in any particular order. It can be well accepted that Mr Orle was the object of Teah's romantic interest as at 27 March 2018 and she made efforts to try and re-engage with him. Mr Orle's evidence was that when he left Teah's in the afternoon of 27 March 2018 he went to stay with his aunt, Rita Orle, for two days. He maintained that he remained at his aunt's place until he left on the morning of 29 March 2018 because he had an appointment at Jobs Australia, which he needed to keep in order to maintain his social security benefit. However, he was shown to have lied to the police in two respects. The first was that he had initially said that he had not been with Teah at all on the afternoon of 27 March 2018. Rather, he parted ways with her when she was heading down to Susanne Street to see David Hughes. Nor did he remain in his aunt's home for the whole period up until 29 March 2018. CCTV footage shows him returning to his place at the Petra Avenue flats at about 9:40 a.m. and he apparently remains there until about 12:10 p.m. when he leaves and heads west along Petra Avenue in the direction of Links Avenue. He returned to the Petra Avenue flats at about 1 p.m. remaining there for a short time. He is seen again a short time later entering the Robert Street flats. He is at the Petra Avenue flats again at about 2 p.m. and he is finally seen about 2 minutes later heading in the general direction of Links Avenue. However, there is no suggestion in these movements of him heading further east than the Petra Avenue flats, and in particular in the direction of David Street to visit Teah. Although he was generally corroborated by his aunt, she had not been asked to make a statement until about July of 2018. Her recollection was vague. And she did not entirely corroborate him in all respects.
During her post-mortem examination, carried out on 31 March 2018 (Exhibit 94), Dr Clifton took a number of swabs from Teah's body including her vagina and surrounding areas, and her anus. These were sent to the laboratory for testing. Dr Clifton described her methodology for taking the swabs and I am satisfied that they were taken with skill and care to avoid any possibility of cross-contamination from one site to the other. That testing was carried out by Sienna Collins, a senior scientist with the Forensic and Analytical Science Service (1642T ff). It should be borne in mind that while he admitted to sexual intercourse more than once, Mr Orle denied putting any part of his body into Teah's anus (1153.5 - .30T). He also said that her showering on the morning of 27th was the last time he had seen her naked and he was never naked with her again (1158.20T).
During her evidence, Ms Collins was asked the following question (1644.40 - .45T). Having established that a small amount of Mr Orle's DNA was found within Teah's anus the following exchange occurs: "Q. As far as the persistence of DNA in the anus, is there anything you're able to say about a timeframe in which that DNA may have been deposited or is that not able to be elaborated on? A. In living individuals we only expect to find touch DNA in the anus up to 6 to 12 hours after the depositing of the DNA and that's because it is an environment with a high bacterial and enzyme content. If it is in a deceased person the timeframe will extend longer, but I can't really give a definitive timeframe in a deceased individual."
In cross-examination, when asked how the presence of James Orle's DNA could be accounted for on Teah's upper thighs after washing, given the evidence that she showered on the morning of 27 March 2018, Ms Collins said that from a rich source of DNA like semen washing would not necessarily remove all of the DNA, although it may remove some or most of it (1648.45 - 1649.5T).
From this evidence, Mr Bouveng submitted that, if one accepted that from the time of death the bacterial and enzyme activity responsible for removing the traces of DNA ceased, if one assumed that Teah died just before 4:20 a.m. on 28 March 2018, one would still be left with the probability that sexual contact, including touching within Teah's anus must have occurred in the period of 6 to 12 hours before her death. If these premises were correct then the last sexual contact between James Orle and Teah could not have been in the morning of 27 March 2018 as James Orle said. This made it likely that he returned to Teah's home in the evening of 27 March 2018 and stayed the night, contrary to his testimony. On this scenario, the person that Ms Donna Searle saw in a staggering run up Robert Street, heading west was likely to have been James Orle and not Mr Green. Two further factors re-enforce this according to the argument. The first is that Mr Orle was seen to wear three-quarter length pants in the footage of the 26 and 27 March 2018 (but I interpolate not on 28 March 2018 when he was wearing shorts). Secondly, if he was running home, he would have turned right into David Street, then left into Petra Avenue and into the Petra Avenue flats. This would account for his absence when Ms Searle went outside and looked. Mr Bouveng pointed out that there was footage of a person entering the Petra Avenue flats at 5:34 a.m. on 27 March 2018 (Exhibit G). He said it is reasonably possible that that person was James Orle.
Mr Orle did not respond to Teah's Facebook message of the afternoon of 27 March 2018 until 11:05 a.m. on 29 March 2018. Mr Orle told police that he did not see Teah's message until he obtained credit from Jobs Australia after his interview at 11:45 on 29 March 2018. When he uploaded the credit, he saw the message and replied to it (1134.45 - 1135.5T). His reply was "Hey, miss you too. I'll come and see you soon" (1136.10T). But in fact the message was sent at 11:05 a.m. Mr Orle maintained he had no phone credit until he received the $30 voucher (1138.20 - .30T). This is somewhat strange given that he had withdrawn $240 from his ATM on 27 March 2018 (1154.15 - .45T). It was his case that he first learnt of Teah's death when a friend, Kane Smith picked him up and gave him a lift as he was making his way home from the Jobs Australia Office. He agreed that he sent his message to Teah when he already knew that she was dead (1147.15T). He could not explain why he would do that. He denied it was to coverup an involvement in Teah's death (1147.25T). In re-examination he maintained that had sent the message after he came out of Job Australia even though the evidence from Facebook indicated that the message was sent at 11:05 a.m. (1163.15 - .45T).
Ms Rita Orle gave evidence and it was necessary for her to refresh her memory by reference to her statement of 29 July 2018. She said she believed that James Orle came to her place on the Tuesday and she knew she had an appointment on the Thursday. In cross-examination she said James Orle visited her "a fair bit, but he didn't stay the night very often" (1184.35T). She also agreed that James Orle had spoken to her before she went to the police and reminded her about what had happened in the week before Easter in March 2018 (1184.45T), including his appointment with Jobs Australia about which she had no recollection until then (1185.5T). When she spoke to the police she was "thinking [she was] covering off where James was for a period of time" (1185.25T).
I accept that the evidence of Ms Collins provides a firm evidential basis for believing that Teah and Mr Orle may have had sex again on the evening of 27 March 2018. It seems logical that even though the effect of a person's death upon the DNA is not well understood, as it its normally excluded in a living person within 6 to 12 hours from the anus, then that should have occurred before Teah's death had the last sexual contact been in the morning of 27 March 2018. Moreover, Ms Rita Orle's evidence does not really provide the alibi that James Orle was looking for given the cross-examination which demonstrates critical parts of her account were provided by her nephew. His conduct on 28 March 2018 is not consistent with the account of the alibi he provided to police. Although he is not shown to shown to have gone anywhere near Teah's place, he is out and about at different times on the 28th. His explanation about his response at 11:05 a.m. on 29th March 2018 is difficult to follow and internally inconsistent. I failed to understand how a message said to be sent at 11:05 a.m. was in fact not sent until sometime after 11:45 a.m.. Why would he send a message if he had just learnt she had died? There is much about his evidence which is just unsatisfactory.
However, I am not satisfied that James Orle was the person Ms Donna Searle saw. Three-quarter length pants are a very slight hook on which to hang an identification. Moreover, the staggering the movement is more like Mr Green's, as I've already said. Nothing much turns on the fact that the person Ms Searle saw had disappeared by the time she went out to have a look. She was hoping not to see the person, on her own account. I am not persuaded that the person depicted in Exhibit G walking west along Petra Avenue at 5:34 a.m. on 28 March 2018 could possibly be James Orle. The Petra Avenue flats are "just around the corner" from Teah's place, as James Orle himself said. It would not have taken him 15 minutes to get there. Moreover, the person depicted in the footage is, so far as I can tell, wearing knee length shorts and not three-quarter length pants. He appears to be strolling on the northern side of Petra Avenue and not the southern side, where the Petra Avenue flats are located. Although he does appear to cross the road towards them at the end of the film-clip.
Given his initial response in evidence-in-chief (1098.30T; 1107.15 - .25T), I accept that there is a reasonable hypothesis based upon the evidence that he did return to Teah's place sometime during the evening of 27 March 2018 and they had sex again. However, even taking into account the unsatisfactory features of his evidence, I am not satisfied that acts of sexual intercourse provide a sufficient basis for a reasonable hypothesis that he killed her in the early hours of 28 July 2018.
As I have already said, I am satisfied that Teah was alive as at 1:35 a.m. on 28 March 2018 when Ebony Roberts cab drove passed. Then there was no illumination from the front of the house and the wooden door seemed to be, at least, closed over. At the time of her death, the entry hall light was illuminated, the wooden front door was open, and the screen was unlatched. Wade Carter didn't notice these things on 28 March 2018, but Ms Creanor noticed the door open and certainly David Hughes did too when he attended at about 5:30 p.m. It's a little difficult to understand how he failed to see Teah, but he did.
I am not satisfied that there is a reasonable hypothesis based upon the evidence that James Orle murdered Teah.

[40]

Conclusions on Count 1

I don't accept that the image presented by the crime scene is inconsistent with death inflicted by "creep got wrong", to borrow Mr Bouveng's phrase. There was ample evidence that Teah would redress after sexual intercourse and sleep with her clothes on (Stuart Blair (908.08T; 910.12-.22T). Ms Levina Chapman gave evidence that Teah would often sleep with her child in the bed with her (929.28 - .49T). Mr Wadwell said that the baby would sometimes sleep next to Teah (1127.39-.42T). Ms Carol, Teah's flatmate in December2017/January 2018, said that the baby often "co-slept" with Teah. Although she did not see Teah retire for the evening, she did notice that frequently she would be wearing the same clothes in the morning as she had been in the evening. She may wear the same clothes for a couple days (1241.29 - 1242.5T).
Other evidence went the other way, David Hughes said that she always put the baby in the cot (726.15 - 726.21T). But James Orle said when he stayed overnight on 27 March 2018, the baby was on the bed with him and Teah in the morning (687.06T).
Not everyone is a punctilious housekeeper and with no disrespect, according to the crime scene photographs, Teah's home was not spotless. I do not find the condition of the kitchen to be inconsistent with an attack by an intruder in the early hours of the morning. On the evidence, Teah often slept in her clothes.
I am satisfied that the Crown have established the circumstances I have set out [160] above. On the basis of them, I am satisfied beyond reasonable doubt that Mr Green fatally stabbed Teah by inflicting the wounds described at the post-mortem on her when she disturbed him as he was gaining access to her home. Probably she turned on the light when she went to investigate a noise or other disturbance at her front door. That she was found in the kitchen rather than in the foyer to my mind is not inconsistent with the whole of the Crown case. Although the circumstances cannot be established in precise detail, she may have moved back or stumbled back as she was attacked. The entrance hallway is very narrow. The absence of defensive wounds is accounted for either by the suddenness of the attack or perhaps because she was holding her child whom she did not want to drop.
I also accept that the apparent similarities between the attack on Teah and the attack on Ms O'Toole have significant probative value and it is improbable that the events occurred coincidentally. I am satisfied for the reasons I have given, that the probative value of the coincidence evidence substantially outweighs its prejudicial effect on Mr Green and that I am entitled to take it into account.
For all of these reasons, I am satisfied beyond reasonable doubt that the Crown proved that Mr Green committed the act of fatally stabbing Teah Luckwell. The absence of forensic evidence linking him to the murder scene is explicable by him wearing gloves at the time of the attack. It is not a matter in which, in my mind, creates a reasonable doubt in view of the whole of the circumstances otherwise proved.

[41]

The defence of mental health impairment

As I have said, both counsel accept that if I was of the view that the act constituting an element of any count was proved beyond reasonable doubt, the availability of the mental health impairment defence had been established on the balance of probability by the joint evidence of Dr Allnutt and Dr Chew. It was the opinion of Dr Chew and Dr Allnutt that Mr Green suffered from schizophrenia which is a major mental illness. Dr Chew said, "it is probably the most significant mental illness that is certainly managed by forensic psychiatry" (1765.25T). Dr Allnutt agreed with Dr Chew's description. Dr Chew also said at (1765.350T): "[Schizophrenia] is really characterised by a number of what we call symptom clusters, the most obvious being the positive symptom cluster, which constitutes delusions, being fixed false beliefs, and hallucinations such as hearing voices. There are also symptom clusters which are important as well; there is usually evidence of cognitive impairment and also what we call negative symptoms, which are things such as lack of motivation, and so on and so forth." Both experts were of the opinion that Mr Green suffered from that condition.
Dr Allnutt who had reviewed the whole of Mr Green's clinical history was of the view that Mr Green suffered from a treatment-resistant schizophrenia. Indeed, Dr Allnutt said that Mr Green suffered from "severe treatment-resistant schizophrenia" (1767.5T). Dr Chew agreed. Each expert accepted that Mr Green's illness had arisen in his late teenage years which is not uncommon and that he had required a number of involuntary psychiatric admissions over the years since. His symptoms were sometimes aggravated by illicit drug use.
From the clinical material, Dr Allnutt was of the view that there were continuing active symptoms of psychosis around the time of the offending (1768.45T). Both experts agreed that there was no evidence of malingering in this case, given the well-documented clinical history (1769.15 - .20T).
It is significant that his condition was untreated as at March 2018. He was not then taking any psychotic medication, but Dr Chew is of the view that even if he had been on medication, he would have likely still been psychotic given the severity of his illness. Dr Allnutt also said that Mr Green's persecutory thought processes which are characteristic of the disease are "commonly associated with finding motive for violent offending in seriously mentally ill people who act violently" (1772.40T). His illicit drug use including methylamphetamine very likely would have exacerbated his symptoms (1775.45T).
Dr Chew and Dr Allnutt were both of the view that, in respect of each offence, Mr Green, because of his disease, did not know that the act involved was wrong in that he could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people was wrong (1778.10 - .20T). Both experts were of the view that he would have been acutely and actively psychotic at the time of the act constituting an element of each of the offences (1779.5 - .20T).
Both experts agreed that the second limb of the defence as encapsulated in s 28(1)(b) of the Act was the applicable limb. His inability to reason about the wrongness of his act with a moderate degree of sense and composure was "driven by irrational thought processes" (1783.5 - .10T). Dr Allnutt and Dr Chew were of the view that the defence was available in respect of all counts. Dr Allnutt said, "If you apply to the one, you have to apply to the other because they are all proximal at the same time" (1785.25T).
I am satisfied on the balance of probabilities that the mental health impairment defence has been made out and that the appropriate verdict under s 59 of the Act in respect of each count is one of a Special Verdict of act proven but not criminally responsible. In coming to this conclusion, I have borne in mind in accordance with s 29 of the Act the various verdicts that are available under s 59. It must be understood that a Special Verdict does not mean that Mr Green will be allowed to go free in the community. Rather, he will remain detained and under the supervision of the Mental Health Review Tribunal. He may only be released if the Tribunal is satisfied, on the evidence available to it, that the safety of Mr Green and of any member of the public will not be seriously endangered by his release. Moreover, before a person under the supervision of the Tribunal because a Special Verdict has been passed upon him may be released, the Tribunal must give notice of its decision in that regard to both the Attorney General and the Minister for Health.

R v Green

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