R v Houda

Court of Criminal Appeal (NSW)|2022-04-29|Before: Ward P, Adamson J, Dhanji J, Hunt J, Dhanji JJ

The applicant's vehicle is observed on fire in Miranda

At about 1.50am on 1 February 2015, a vehicle was observed on fire on Karimbla Road, Miranda by a witness (Ms Tamara Rojas) (22/05/19 T 1270-1274). The vehicle was subsequently identified as the applicant's silver-coloured Subaru Impreza sedan registration BP 71 LZ (22/05/19 T 1313.35; Ex YY). Ms Rojas gave evidence that there was a walking track which led from Karimbla Road back towards Caringbah along a train line. The location where the applicant's vehicle was on fire was within a kilometre of the street at Caringbah where Ms Hayes lived with the applicant and where Mr Mouhtaris lived.

Further telephone communications

There were a number of further telephone communications from the relevant telephone numbers in the early hours of 1 February 2015 (after the police had arrived at the scene):

between 2.10 and 2.18am, three text messages were sent and two telephone calls (each lasting 2 seconds) were made from the Monique Hayes (3) telephone number to the Anthony Mouhtaris Snr (1) telephone number;
at 2:29am, there were telephone calls, each lasting 3 seconds, from the Monique Hayes (1) telephone number to the Anthony Mouhtaris Snr (1) and Anthony Mouhtaris Snr (2) telephone numbers; and a 2 second telephone call from the Monique Hayes (3) telephone number to the Anthony Mouhtaris Snr (2) telephone number;
between 2:40 and 2:53am, there were five calls from the Monique Hayes (3) telephone number to the Anthony Mouhtaris Snr (2) and Anthony Mouhtaris Snr (1) telephone numbers (lasting 6, 1, 4, 2 and 2 seconds);
at 2:54am, a text message was sent from the Monique Hayes (3) telephone number to the Anthony Mouhtaris Snr (2) telephone number; and
at 3:33 and 3:34am, there were telephone calls, each lasting 2 seconds, from the Monique Hayes (3) telephone number to the Anthony Mouhtaris Snr (2) and Anthony Mouhtaris Snr (1) telephone numbers.

Ms Yarnton's first interview with police

On 1 February 2015, at about 7.00am, Ms Yarnton participated in the first of two records of interview with police at Bankstown Police Station (neither being admissible in the case against the applicant).
In her first interview, Ms Yarnton said that she knew nothing about what had happened and was in the bushes going to the toilet (see MFI 42 at Q 166). Ms Yarnton said that she had stopped the car on the side of the road for that purpose, taken a serviette with her, left the windows of the car open ("I think for fresh air for him") and the hazard lights on, and walked away from the car to find a "stable area" to go to the toilet.
Ms Yarnton said that while she was in the bushes she heard "yahooing" and thought "fuck, we've got hoodlums up here, this is all I need" (see MFI 42 at Q 359). Ms Yarnton said that her husband called and abused her and threatened to kill her (see MFI 42 at Q 328-329); that when she returned to the car after about 20 minutes her husband asked her why there was a petrol smell and where the two gas bottles had come from; and that she said she had no idea where the gas bottles came from (see MFI 42 at Q 352).
Ms Yarnton said that her husband assaulted her; that her husband had gambling debts and that she had borrowed money for his debts. Ms Yarnton referred to emails, saying "And he sent me emails to confirm his debts … I didn't trust him to do the right thing by me … I didn't want to lose what I was gunna get considering he had a gambling problem" (see MFI 42 at Q 200).
Towards the end of the interview, Ms Yarnton said that when she first stopped the car on the side of the road "there was a silver car ahead" (see MFI 42 at Q 1003).
Some time during that same day (after her first interview), Ms Yarnton had a further conversation with Detective Lawson. Detective Lawson's evidence was that she had conducted checks on the COPS System in relation to mobile telephone numbers on Ms Yarnton's phone; and that she had noticed two calls received by Ms Yarnton within half an hour of 000 being contacted earlier that morning were from Ms Hayes. Detective Lawson also became aware that the applicant's vehicle had been found burnt out in Miranda earlier that morning.
Detective Lawson had a conversation with Ms Yarnton to the following effect (27/05/19 T 1386.25): Lawson: Sharon, how do you know Monique? Ms Yarnton: She's a friend of my sons. She used to be his girlfriend. Lawson: What do you know about Monique? Ms Yarnton: Not much. She's a bit troubled so I've been trying to help her. Lawson: What do you mean? Ms Yarnton: Well, she has a five-year-old. I'm just trying to help her. That's why she was coming over when she called. … Lawson: Her boyfriend's vehicle was found burnt out this morning, but anyway, you will be charged with attempt murder tonight. The custody manager will discuss bail with you when the paperwork is done. Ms Yarnton: Please, no, I need bail, my children. … Please, charge me with something so I get bail. Not attempt murder. Why? Please, I need bail. I can't go into custody.
Following this conversation, Ms Yarnton told Detective Lawson she wanted to provide more information about what had occurred earlier that morning and agreed to participate in a second record of interview.

Ms Yarnton's second interview with police

In her second interview, which commenced at about 4.40pm that day, Ms Yarnton said that on 29 January 2015 at about 5.00pm, she had met Ms Hayes outside a McDonald's restaurant in Caringbah. Ms Yarnton said she had contacted Ms Hayes to ask her to return her son's mobile phone charger. Ms Yarnton said the applicant dropped Ms Hayes at McDonald's but did not stay (see MFI 43 at Q 41- 46).
Ms Yarnton said that Ms Hayes did not have the mobile phone charger with her and that she had invited Ms Yarnton to accompany her back to the apartment she shared with the applicant in Caringbah. When Ms Yarnton and Ms Hayes arrived at the apartment, she said the applicant and another male "of Middle Eastern appearance" she only knew as "Cuz" were there (see MFI 43 at Q 49-50). Ms Yarnton said she had a conversation with Ms Hayes and the applicant about her relationship with Mr Yarnton. Ms Hayes asked how things had been going and Ms Yarnton said she told her "fucking shit, the abuse is continuing and it is out of control. Twenty days to go … he abuses me mentally, verbally and physically" (see MFI 43 at Q 51-53).
Ms Yarnton said that at that point, the applicant said to her, "I can get someone to knee cap him". Ms Yarnton said she replied to the applicant's suggestion "I don't think so, I lock pricks up for this every day". Ms Yarnton said the applicant then suggested "what about just smack him around?" and he offered to talk to Mr Yarnton and "tell him you're a top chick". Ms Yarnton said she replied "good on you, no problems but he won't listen cause he's rooting someone else" (see MFI 43 at Q 53- 64). Ms Yarnton said she didn't think the appellant was serious. Ms Yarnton said she laughed and "didn't think anything of it" (see MFI 43 at Q 178).
Ms Yarnton said that on 31 January 2015 at about 10.00am, she received a text message from Ms Hayes saying "Hey I've got problems with Fadi, can you, can you chat?". Ms Yarnton said that she arranged to stop by Ms Hayes's apartment; and that when she did so, the applicant again spoke to her and said "We're going to see Dean tonight", and Ms Yarnton said she replied "please don't, I don't need this, Dean is dangerous, Dean will kill you". Ms Yarnton said that the applicant simply replied, "all will be good". Ms Yarnton said she then said to the applicant "please don't, if you hurt him … my kids will never forgive me" but that the applicant replied "it's already been arranged". Ms Yarnton said that she asked the applicant to call it off, saying "please I'm telling you to stop, I'll tell the coppers it was you" but she said the applicant replied, "I've done things in the past, and I've always gotten away with it … I'm good at torching cars" (see MFI 43 at Q 78-84).
Ms Yarnton said that, after leaving the Oslands in Merrylands Bowling Club late that evening, she was driving on Woodville Road when she noticed a silver-coloured Subaru driving closely behind. Ms Yarnton said she could see the applicant sitting in the front passenger seat and the driver was flashing his lights at her. Ms Yarnton said that she tried to wake Mr Yarnton by shaking him, telling him to wake up, but she said he told her to "fuck off". Ms Yarnton said that she pulled into an unknown street and parked for 15 minutes in an attempt to hide from the applicant; and that she then began driving down Henry Lawson Drive but pulled over to the side of the road as she felt physically sick about what had occurred. Ms Yarnton said that she got out of the car, turned the hazard lights on and walked into the bush to urinate; and that while she was in the bush she heard "Lebanese males yahooing … like laughing out loudly, talking loudly and it was like it was right in front of me, so it was very loud … it was echoing in the street". Ms Yarnton said the males were speaking in a foreign language she knew to be Lebanese and said "I've heard Lebanese from being in the job" (see MFI 43 at Q 88-108).
Ms Yarnton said that she was afraid and walked deeper into the bush and contacted Ms Hayes by telephone. Ms Yarnton said Ms Hayes told her, "they're there already … Fadi's there with his cousins". Ms Yarnton said that she told Ms Hayes to call it off, but Ms Hayes said "it's too late, they've gassed [the] car". Ms Yarnton said that she told Ms Hayes that "some cunt was tailgating me from the Meccano set" and said that Ms Hayes replied "yeah that was Fadi and his cuz" (see MFI 43 at Q 110-115).
After Ms Yarnton's second interview, Ms Yarnton was alone in the interview room with Detective Lawson for a short period of time and continued to speak. Ms Yarnton said to Detective Lawson "I'm asking you female to female, please help me, save me. I'll give you the loan [sic: lone] wolves and others. Please just don't charge me with attempted murder" (27/05/19 T 1387.08).

Ms Yarnton's iPhone

Mr Yarnton gave evidence that, after making a statement to police at Bankstown Police Station on 1 February 2015, he was driven home to Menai by his son and that, later in the day, he was "[l]ooking for answers … as to what happened the previous night [and] started going through stuff under the house, in the garage" (30/04/19 T 104.37) where the family stored things they were not using (30/04/19 T 104.49). Mr Yarnton said that he found an iPhone belonging to his wife and about $3,500 cash in a bag which was inside another bag (30/04/19 T 105.09). Mr Yarnton said that he accessed the phone; looked at his wife's messages and Facebook account; and noticed messages on Facebook between Ms Yarnton and Ms Hayes, including the messages from the night before (see above). Mr Yarnton said he had met Ms Hayes on one or two occasions; and that she was previously in a relationship with his son during 2014 (30/04/19 T 114.46-T115.05). Mr Yarnton said that he saw the Facebook message Ms Yarnton had sent the applicant and that the message to the applicant was accompanied by "a grid map of all little squares with a - like a little red flag" but he could not recall for what location (30/04/19 T 115.48-49).
A subsequent download of the iPhone did not reveal such a map; nor did the examination by the officer in charge of Ms Yarnton's Facebook account (see Ex SSS and Ex RRR; 11/06/19 T 1992).

Statement by the applicant to police about theft of his car

On 1 February 2015, the applicant attended Miranda police station and provided a written statement to police in relation to the theft of his vehicle the night before. In this statement, the applicant said that, between about 8.00pm and 8.30pm the night before, he had parked his car in front of his mother's house at Rex Road in Georges Hall; that he was with his friend (Moey Rad) at the time; and that he was picked up from his mother's house by a friend ("Anthony") and driven home to Caringbah. The applicant was unsure of his friend Anthony's surname. The applicant said that he usually parked his car at his mother's house when he did not need it; and that he did not know how his car came to be in Karimbla Road at Miranda (Ex EEEE).

Arrests

On 2 February 2015, Ms Hayes and the applicant were arrested and charged (6/06/19 T 1886.44-1889.23). The applicant exercised his right to silence.

Ms Hayes' ERISP

Ms Hayes participated in a record of interview (not admissible in the case against the applicant). Ms Hayes said she had known Ms Yarnton for two or three years; that Ms Yarnton told her that her husband had sexually assaulted her; and that she had been speaking with Ms Yarnton for some time and Ms Hayes said that "[a]ll the shit that she's been saying to me for the past few months has been not normal".
Ms Hayes said that during "the week that just passed" she had met Ms Yarnton at McDonald's, Caringbah and had coffee (see MFI 44 at Q 97-103); that she walked to McDonald's from her home nearby (A 106-109); and that the reason they met up was that Ms Hayes understood that the night before "her husband raped her" (see MFI 44 at Q 115) and "bashed her … drag her down the fucking hallway by her fucking hair" (see MFI 44 at 139). Ms Hayes said that at their meeting Ms Yarnton told her she had had enough of her husband and that he was a "fucking pig" (see MFI 44 at Q 141). Ms Hayes said she told Ms Yarnton to leave him "to fuck him off" but said Ms Yarnton told her she couldn't because she had "too much to lose" (see MFI 44 at Q 167).
Ms Hayes said the pair met for about 20 minutes, after which Ms Yarnton drove her home (see MFI 44 at Q 181); that Ms Yarnton did not go inside her home or speak to anyone else while outside (see MFI 44 at Q 188-190); and that Ms Yarnton, who had "done everything for [her] is locked up for something she shouldn't be fucking locked up for" (see MFI 44 at Q 204). Ms Hayes said (see MFI 44 at Q 205) that the police were "… fucking doing the wrong thing. He's a fucking disgusting pig, and has probably set all of this shit up" and that "She's a fucking beautiful woman, and should not be there" and "I don't give a fuck what anyone says, that woman should not be there".

Ms Hayes' subsequent written statement

On 5 February 2015, when Ms Hayes was in custody at Silverwater Women's Correctional Centre, Ms Hayes was interviewed by Joshua Carlson, a senior assistant superintendent (04/06/19 T 1746). Ms Hayes told Mr Carlson that Ms Yarnton had offered her money to murder her husband (04/06/19 T 1748.46). Later that day, Mr Carlson assisted Ms Hayes to prepare a notebook statement, which was subsequently tendered in the Crown case against Ms Hayes (Ex FFF; 04/06/19 T 1751.04).
In Ms Hayes' notebook statement, Ms Hayes said that about a week before Ms Yarnton called her mobile phone and asked to meet at McDonald's, Caringbah; that Ms Yarnton told Ms Hayes she couldn't "Do it anymore"; and that Ms Hayes agreed to meet Ms Yarnton and the pair met at the front of McDonald's, Caringbah and went inside. Ms Hayes said Ms Yarnton began telling her about "how her husband rapes her … bashes her and the kids…" and Ms Yarnton asked her if she would "knock" her husband (which Ms Hayes understood to mean "murder"). Ms Hayes said that Ms Yarnton told her that she was willing to pay and looked her straight in the eyes and said "this isn't a fucking joke, I'm not fucking around". Ms Hayes said she did not say much in response.
Ms Hayes said that, later, Ms Yarnton drove Ms Hayes home and that, when they arrived, Ms Yarnton got out of the car and showed Ms Hayes a bag in the boot containing three envelopes with large sums of cash money inside; and that Ms Yarnton said there was $20,000 and asked Ms Hayes again whether she would "do it". Ms Hayes said that she answered "no" and that, when she did, Ms Yarnton became agitated and asked to see the applicant. Ms Hayes said that Ms Yarnton asked the applicant "if he could knock Dean, or whether he knew anyone that could do it" and that the applicant declined.
Ms Hayes said that she was in regular contact with Ms Yarnton over the following days; that Ms Yarnton came to see her at her house again and told her that what she had asked Ms Hayes to do was "still going to happen… her husband… owed about $20,000 to loan sharks and bikies for gambling debts"; and that Ms Yarnton asked Ms Hayes to stay in contact with her on Saturday night "so it didn't look obvious" and gave her $2,000. Ms Hayes said she never agreed to murder Mr Yarnton and that, when asked to do so, she "definitely said 'no'".

First two trials

The first trial involving the applicant in this matter commenced on 15 May 2017 before Lakatos SC DCJ.
Prior to the commencement of that trial, both the applicant and Ms Hayes applied to be tried separately from Ms Yarnton. On 15 May 2017, Lakatos SC DCJ refused the applications for a separate trial in each case. The Crown had submitted that it would assert at trial that Ms Yarnton's account in her second interview was not truthful. His Honour was of the view that the prejudice caused by Ms Yarnton's inadmissible assertions was "weakened to some extent" for this reason. His Honour was not satisfied the Crown case against either the applicant or Ms Hayes would be made immeasurably stronger by reason of Ms Yarnton's assertions in her second interview.
The jury was discharged on 18 May 2017 and the trial adjourned. At that time, Mr Mouhtaris had not been charged and was a witness in the Crown case.
On 22 May 2017, a second trial commenced before Lakatos SC DCJ. At that stage, the Crown case was that it was the applicant who was the person shown in the CCTV footage attending the Coles Express service station at Bass Hill on the evening of 31 January 2015 and purchasing one gas bottle (and stealing the other) (22/05/17 T 33.32).
On 20 June 2017, the jury in the applicant's second trial was discharged and the trials of all three accused (the applicant, Ms Hayes and Ms Yarnton) were further adjourned (20/06/17 T 949.37).

Arrest of Mr Mouhtaris

On 5 July 2018, Mr Mouhtaris was arrested and charged. He exercised his right to silence.

Third trial

On 11 March 2019, the third trial commenced before Judge Culver. By this time, Mr Mouhtaris had been joined on the indictment as an accused, and the Crown no longer alleged that the applicant attended the Coles Express service station at Bass Hill during the evening of 31 January 2015; rather, the Crown case was that that person was Mr Mouhtaris (14/03/19 T 124.20). The Crown case in relation to the DNA results from the black glove found at the scene by this stage also included the result in relation to a DNA profile consistent with that of Mr Mouhtaris being identified, in addition to that of the applicant.
The applicant made a second application for a separate trial. That application was refused on 15 March 2019. Her Honour accepted that the Crown case against the applicant was circumstantial and that the jury would be invited to consider the combination of circumstances in determining whether the Crown had proved beyond reasonable doubt the applicant's participation in a joint criminal enterprise as alleged on the indictment. Her Honour said that Ms Yarnton's second interview "effectively set up a cut-throat position" and made "a number of assertions concerning Mr Houda's involvement in the events of 31 January and 1 February 2015". However, her Honour also said there were some potentially exculpatory aspects of Ms Yarnton's assertions and pointed to the possibility that things allegedly said by the applicant to Ms Yarnton inside the apartment at Caringbah may be "suggestive of a different intention from that required for proof by the Crown for attempt murder".
Her Honour was not satisfied that the Crown case against the applicant would be "impermissibly strengthened" by Ms Yarnton's second interview and her Honour was not satisfied that the risk of prejudice to the applicant "survives appropriate directions". Her Honour said: Whilst it cannot be assumed that jurors will always be able to robustly apply directions of the Court in that regard, this is a case where the Crown case against Mr Houda is independently, by virtue of circumstantial reasoning, still strong … Furthermore, the record of interview with Ms Yarnton to which I have referred, namely the second record of interview, does bear a cut throat style presentation and it will be the Crown's position as noted previously by his Honour Judge Lakatos, that the Crown will be saying that in many respects, Ms Yarnton's position in that interview distinctly lacks credibility.
On 18 March 2019, the jury were again discharged (18/3/19 T 190.23).

Directions as to use of evidence admissible only against certain accused

In the course of opening remarks to the jury on 29 April 2019, her Honour said (29/04/19 T 18): Ladies and gentlemen, as you can see there are four accused in this trial. I want to explain something to you at the outset which is very important. You must give separate consideration to the evidence against each accused in order to decide whether that accused is guilty of the offences on the indictment. Really, it's the case that there are four separate trials being conducted, but they're happening at the same time, for convenience. There will be different types of evidence, and I said the evidence will take the form of what wins say to you. There might also be documents or photographs, things like that. The different types of evidence will be evidence that relates to one accused, some accused, or all accused. The reason we're conducting the trials of each accused together in this one trial is really for convenience, because there be a large portion of the evidence that will be relevant to your consideration of all of the accused. So it makes sense for one jury to hear that evidence, but there will also be evidence that will only be relevant to your consideration of, for example, one accused or some accused and not the remaining accused. As best as possible, the lawyers are going to try and help you by indicating whether it's in respect of one or some accused. At the end of the trial, the lawyers will have an opportunity to speak to you about how they would invite you to put together the pieces of evidence or information in reaching your verdict, and they will again have an opportunity to say whether evidence is relied upon only in respect of one or more accused. You must bear in mind that when you're listening to the evidence there may be some portions of the evidence that cannot be used by you in your consideration of the other accused. But again, I expect the lawyers will be able to help in understanding which evidence relates to which accused.
The following day (on 30 April 2019), during Mr Yarnton's evidence and at the point that the Crown tendered a map (against Ms Yarnton only) of the route driven by Mr and Ms Yarnton from Menai to Merrylands (Ex A), Counsel appearing for Mr Mouhtaris asked her Honour to explain to the jury the process of the evidence being admitted in only one of the accused's cases and her Honour said (30/04/19 T 68.34-49): It was mentioned during addresses yesterday, but it is appropriate that I reiterate the situation. You'll remember yesterday I explained to you that there are four accused and essentially you're hearing four trials at once, because it's anticipated there's going to be a lot of evidence which overlaps between the accused. But equally, I told you there would be some evidence that relates only to one accused or another. This is that type of evidence. This only relates to the case that the Crown brings against Mrs Yarnton. So, at the end of the trial when you come to consider your verdicts, this is evidence that you may consider only in the case concerning Mrs Yarnton. So that's why the Crown and the other lawyers will be doing their best to say if it's evidence of that type that relates only to one accused, and this is that type. At the end of the trial I'll give you more detailed directions about that issue of looking at evidence that relates to only one accused as opposed to all accused. Thank you.
On 27 May 2019, after evidence was given by Detective Lawson about her conversation with Ms Yarnton following her second interview during which Ms Yarnton offered to "give" the police "the [lone] wolves and others" (27/05/19 T 1387.09), her Honour said (27/05/19 T 1395.14-28): Thank you, ladies and gentlemen, the Crown has clarified that the conversations between this officer and Ms Yarnton spoken of in the officer's evidence are only led in the case concerning Ms Yarnton. You cannot use those conversations at all in any way in respect of the case concerning any other accused. Now, at the end of the trial I'll be explaining that direction in greater detail, but it is important you understand that conversations held with Ms Yarnton and the police are in no way admissible in your consideration of whether the Crown has proved the case concerning any other accused. You must isolate those conversations only in your consideration of the case concerning Mrs Yarnton. You cannot in any way refer to those conversations or consider them when you are looking at the case concerning any other accused. Now, in respect of the other observations at the scene made by this officer, that's available in respect of your consideration of the case concerning all accused.
Shortly after this, her Honour gave a similar direction in relation to evidence given by another officer of discussions with Ms Yarnton (27/05/19 T 1412.05).
Then, on 31 May 2019, when the Crown formally tendered Ms Yarnton's first record of interview, her Honour said (31/05/19 T 1664.16-42) (Ex AAA in case of accused Ms Yarnton): Now that's in the case of Ms Yarnton only. It's very important you understand this. Anything said by one accused to the police cannot and must not be used by you in any way when you come to consider the case of another accused, and when you think about it that would only be logical because it couldn't be the case you could just accept that one person could say something about other people in the trial when they are all accused. So you must understand that this evidence can only and must only be considered by you in the case of Ms Yarnton. Now I also want to tell you another thing. Every person has a right to silence but if they take part in an interview that doesn't mean that they bear the burden of proving anything to you that they say in that interview. The burden of proof always in this trial remains on the Crown to satisfy you of the elements of the offences beyond reasonable doubt to be considered by you separately in respect of each accused. So, just because Ms Yarnton has chosen to take part in an interview does not in any way shift that burden of proof to her to prove any matter to you. It does not mean that at all. The burden of proof still stays on the Crown. I'll give you more fulsome directions at the end of the trial when you and I have heard all of the evidence, but you must understand that the burden of proof always remains on the Crown, and if there is a version of events that's given in an interview that could reasonably be true and could reasonably support the innocence of the person being interviewed, then it's for the Crown to prove to you the guilt of the accused beyond reasonable doubt. In other words, to disprove that version of events beyond reasonable doubt. I'll explain that to you in more fulsome detail later.
When the Crown formally tendered Ms Yarnton's second record of interview (Ex BBB in case of accused Yarnton) (MFI 43), her Honour said (31/05/19 T 1667.20): And the same directions apply, ladies and gentlemen, as I gave for the first interview and first transcript. I want to remind you that nothing said by an accused to police can at all be considered by you in respect of your consideration of any other accused's case. So you cannot consider anything said by one accused in the case of another accused.
On 4 June 2019, when the Crown tendered Ms Hayes' notebook statement, (Ex FFF in case of accused Hayes), her Honour said (04/06/19 T 1751.08-15): Ladies and gentlemen, I've already directed you that the circumstance of being in custody cannot be used by you in any way against an accused and you must not use it. It's irrelevant to your considerations. Also, you can only use the evidence arising from this witness in respect of Ms Hayes and you must not use the evidence in any way against any of the other accused. Even if they are mentioned in the course of the evidence, this evidence is only available in your consideration of the case concerning Ms Hayes and you must not use the evidence against any other accused. Thank you.
On 6 June 2019, following evidence about the arrests of Ms Hayes, the applicant and Mr Mouhtaris, her Honour said (06/06/19 T 1889.25-1890.24): Ladies and gentlemen, I want to give you some important directions about the evidence that you've heard this morning. First of all, you're aware that two of the accused - Ms Yarnton and Ms Hayes - did undergo interviews with police. You've also heard that two of the accused - Mr Houda and Mr Mouhtaris - exercised their right to silence. You'll remember at the beginning of the trial, I explained that, really, what is happening in these proceedings is that there are joint trials. The case of each accused will need to be considered by you separately when you come to deliberate upon your verdicts. I've explained to you that you cannot use what is said by one accused to police in any way, against another accused. The burden of proof always rests on the Crown in this trial, and that burden is to prove the elements, or the ingredients, of the offences beyond reasonable doubt and at the end of the trial, I'll give you a document setting out those steps or ingredients, or what we call elements of the offences. You've also heard from me at the beginning of the trial that each accused, indeed, all of us, bear a presumption of innocence, and that presumption remains there unless and until the Crown proves the elements of the offences to you beyond reasonable doubt. You've also heard that the accused have a right to silence, as indeed, we all do. You've heard that each of the accused was told that they have a right to silence. The two accused who chose to give an interview to police, or in Ms Yarnton's case, two interviews to police, do not abandon their presumption of innocence in giving those interviews. They don't change the burden of proof to them to prove any matter to you. Even if you reject what has been said in an interview by an accused, that does not, of itself, mean, that the accused is guilty. The Crown still has to prove its case against the accused in respect of the elements of the offences, beyond reasonable doubt. If you find that what is said by an accused in an interview is a version of events that is reasonably possible, then the Crown has to disprove that innocent version given by the accused, beyond reasonable doubt. Now, ladies and gentlemen, for the two accused who chose not to give an interview to police, it would be quite wrong of you, having heard that each of them were told by police they had the right to silence, for you to somehow use it against the accused for not giving an interview to police, and you must not do that. The fact that the accused took note of the caution given by the police, and chose to remain silent, cannot be used by you against that accused. You must not use the fact that a person, an accused, has exercised his right to silence against the accused. You must not treat the fact that two accused chose to give an interview and two chose not to as some kind of suspicion arising in respect of any accused. You cannot use that circumstance. You must not speculate about what might have been said by an accused person. Instead, the golden rule that I keep repeating and is so vitally important, is that only the Crown needs to prove anything to you, and the Crown must prove to you, before you can find any accused guilty of an offence, the elements of the offence beyond reasonable doubt. And the burden never shifts to an accused person.

Evidence of Optus representative re communications

Exhibit DDDD (the communications summary) was tendered towards the end of the Crown case together with various call charge records upon which the communications summary was based (aside from Facebook communications) (see 20/06/19 T 2300-2304).
An Optus representative, Mr David Findlay, gave evidence (see 11/06/19 T 1958) in relation to the interpretation of telephone billing records and call charge records.
As to billing records relating to Ms Yarnton's telephone number, Mr Findlay agreed that the records "include the duration or length of the phone calls" (11/06/19 T 1959.22) but said that it was not possible from the records to say ("yes or no") if a person actually had a conversation during those calls (11/06/19 T 1959.29-30).

Forensic evidence

Forensic testing was carried out on a piece of carpet from the boot of the applicant's car and the presence of petrol was detected (30/05/19 T 1643.17).
Forensic testing of DNA samples recovered from the inside of the single black glove found at the scene on Henry Lawson Drive identified a mixture of DNA originating from at least three individuals. The applicant and Mr Mouhtaris could not be excluded as major contributors to the DNA mixture (03/06/19 T 1694.04). How and when each accused's DNA profile was deposited onto the inside of the glove was not capable of being determined (03/06/19 T 1711.36).
A forensic biologist from the NSW Forensic and Analytical Science Service, who was called as an expert witness in the Crown case, explained the results of forensic testing of the single black glove as follows (03/06/19 T 1694.01- 1696.16): A. Yes. The DNA recovered is a mixture that originates from at least three individuals, Fady Houda and Anthony Mouhtaris cannot be excluded as the major contributors to this mixture. Assuming there are three contributors to the mixture statistical calculations were carried out and the following likelihood ratios were obtained. Number one, it is greater than 100 billion times more likely to obtain this mixed profile if it originates from Fady Houda and two unknown, unrelated individuals rather than if it originates from three unknown unrelated individuals in the Australian population. Number two, it is greater than a 100 billion times more likely to obtain this mixed profile if it originates from Anthony Mouhtaris and two unknown unrelated individuals rather than if it originates from three unknown unrelated individuals in the Australian population. Number three, it is greater than 100 billion times more likely to obtain this mixed profile if it originates from Fady Houda, Anthony Mouhtaris and an unknown unrelated individual rather than if it originates from three unknown unrelated individuals in the Australian population. Due to the low level of the minor component further interpretation has not been carried out. Q. As part of those results you say that Fady Houda and Anthony Mouhtaris cannot be excluded as the major contributors to this mixture. Can you please explain what you mean by "cannot be excluded"? A. For this particular DNA mixture the initial interpretation has determined that it's a mixture that originates from at least three individuals and the further part of the mixture is to determine the assessing the proportions, the relative proportions of the individuals to that mixture. There are two contributors in the major component that are present in roughly equal amounts and are suitable for comparison. So two components are present and these are suitable for comparison and they have been compared to the reference samples in the case. The DNA profile recovered from the reference sample from Fady Houda and the DNA profile recovered from the reference sample from Anthony Mouhtaris, their DNA - the DNA types recovered from those reference samples cannot be excluded from the DNA mixture. The DNA types are present in that they're represented in that DNA mixture in the major component of that DNA mixture, and a statistical strength has been carried out. Q. If I can just skip forward to the very last part of the results of your testing and once again you refer to a minor component. Do you see that? At the bottom of your results? … Q. You said earlier that the DNA recovered was a mixture that originated from at least three individuals? A. Yes. Q. And you've already referred to Mr Houda and Mr Mouhtaris. The minor component, is that the third individual that you've referred to in that earlier portion? A. That's correct. There is evidence of a low level third contributor to that DNA profile, but due to the low level of that profile there's very little information for that minor component. Therefore no further interpretation has been carried out. Q. Just finally in relation to the results of the testing for this item, you referred in your results if you like to three different statistical analyses if you like, can I just ask you please to just take us through each one of those please and if you can explain it or expand upon your results? A. Yes. A likelihood ratio was carried out for this particular DNA mixture and a likelihood ratio assesses the probability of obtaining a DNA profile under two different scenarios, two different what-if scenarios. So what if this DNA profile originate from Fady Houda and two unknown unrelated individuals compared to what if this DNA profile originated from three unknown unrelated individuals in the Australian population. Each scenario comprises of three contributors, because it has been assessed and assumed that the profile originates from three individuals. So a likelihood ratio would calculate the probability of obtaining this profile under those two different scenarios and three different scenarios were carried out for this particular profile. The first two different scenarios are that the - what is the likelihood of obtaining this profile if it originates from Fady Houda and two unknown unrelated individuals, rather compared to what is the probability of obtaining this profile if it originated from three unknown unrelated individuals in the Australian population and the statistic is a hundred billion times more likely to obtain this profile if the first scenario is correct. If the first scenario is supported rather than the second scenario. So those two scenarios are calculated and compared to one another and the statistic then shows support for one scenario over the other. The second scenario, the second likelihood ratio, compares the different scenarios of the mixed profile. The likelihood of obtaining the mixed profile if it originated from Anthony Mouhtaris and two unknown unrelated individuals rather than if it originated from three unknown unrelated individuals in the Australian population and again the statistic is a hundred billion times more likely to obtain that profile if the first scenario is correct rather than the second scenario. And the third scenario relates to it is a hundred billion times more likely to obtain the same profile, the same mixed profile, if it originates from Fady Houda, Anthony Mouhtaris and an unknown unrelated individual rather than if it originates from three unknown unrelated individuals in the Australian population. So the statistics again show strong support for the first scenario rather than the second scenario. Q. And the third likelihood ratio that you've discussed is a comparison if you like, or the likelihood of the mixed profile originating from Mr Houda and Mr Mouhtaris as opposed to three unknown unrelated individuals, is that correct? A. It's the - it refers to the likelihood of obtaining the mixed profile if the profile originates from Fady Houda, Anthony Mouhtaris and an unknown unrelated individual rather than from three unknown unrelated individuals. Q. Just finally on these results, you've referred to three different likelihood ratios. On each occasion, the ratio is the same. That is, that it's greater than a hundred billion times more likely. That's the case? A. Yes, that's correct. Q. Is there an upper limit on the ratios that you used in your reporting? A. Yes, there is. The cut-off is a hundred billion for the actual figure. They have been calculated to be larger than that, but the laboratory reports as a maximum figure, a hundred billion.
Thus, on the DNA expert's evidence, there were three scenarios: 1. The comparative likelihood that the DNA profile originated from the applicant and two unknown unrelated individuals compared to the DNA profile originating from three unknown, unrelated individuals in the Australian population; 2. The comparative likelihood that the DNA profile originated from Mr Mouhtaris and two unknown unrelated individuals compared to the DNA profile originating from three unknown, unrelated individuals in the Australian population; and 3. The comparative likelihood that the DNA profile originated from the applicant and Mr Mouhtaris and one unknown unrelated individual compared to the DNA profile originating from three unknown, unrelated individuals in the Australian population.
In each of the three direct comparisons, the comparative likelihood of the DNA profile originating from: first, the applicant and two unknown, unrelated individuals; or, second, Mr Mouhtaris and two unknown, unrelated individuals; or, third, the applicant and Mr Mouhtaris and one unknown, unrelated individual, was 100 billion times more likely than the DNA profile originating from three unknown, unrelated individuals in the Australian population.
During evidence in chief, the DNA expert gave the following evidence as to "transference" (03/06/19 T 1698.20): Q. Can you please explain to the members of the jury what that [the term transference] means in the context of DNA? A. Yes, so DNA transfer is described as the mechanism by which DNA may transfer from an, an individual onto an object or another individual, so that's determined primary transfer or direct transfer where, for example, DNA may transfer directly from an individual's hand onto a cup, for example. That's direct contact and that will be a direct transfer from DNA from an individual's hand onto an object. This may not - direct transfer may not be as a result of contact. For example, sneezing or coughing or even talking would result in small amounts of DNA being present onto a, an item and, and be recovered as well for a DNA profile. Q. Just pausing there for a moment. What factors may impact upon the likelihood of DNA being transferred in that way? I'm talking here about primary transference. A. There are a large amount of factors that can affect the likelihood of DNA being transferred onto a surface, so for example, the nature of the contact. The longer the contact, the more likely that DNA will be transferred. Something that an individual handles very frequently such as a mobile phone, it would be a great - I would expect that it would be more likely for their DNA to be transferred onto that item rather than a very fleeting, very brief contact. Another factor would be the propensity on the individual themselves to deposit DNA onto an item. Sometimes an individual who frequently washes their hands, for example, or just does not shed as much DNA from their hands as other individuals, this may also be to do with their personal habits. If someone touches their face quite frequently or - such as their hair, then they would have a large amount of DNA on their hands, which would then be readily transferable onto a surface. And we found that that is quite a large variety. It's a large variation with, with people who can deposit DNA onto an object. The - as well as the time and the nature of the contact itself. So if something's quite - held quite strongly, quite roughly, if there's friction, the friction would also assist in the, in the deposition of DNA and the nature of the object itself. If something is quite rough, then that would pick up DNA and retain DNA more readily than if something's a very smooth, shiny surface, it may be more difficult to deposit DNA onto that and DNA will not as readily be retained onto very smooth, shiny surface, non-porous hard surface as on other surfaces. Q. You've told us about this concept of primary transference. Can you tell us something about this concept of secondary transference and in fact, start off by what exactly is meant by secondary transference? A. Secondary transference is used to described when DNA is transferred onto an object by way of an intermediary and by not, by - an individual may not have direct contact with an object, however, the DNA may be transferred onto that object via another method. So for example, if I was to shake someone's hand, my DNA may then be transferred onto that individual's hand, and if there's enough sufficient DNA transferred and the time, the timings are right, and they might grab a glass, my DNA may be recovered onto that particular glass, for example, even though I have not had direct contact with that glass. Q. I won't ask you to repeat the factors that you've already spoken about that may impact upon the likelihood of such a transference, but are there any further considerations when talking about secondary transference? I'm talking here about factors that may affect the likelihood of the DNA being passed on through secondary transference. A. As I mentioned, it is fairly variable, but it would determine on enough DNA being transferred initially, and then enough DNA being transferred to the transference. I would also like to say that some DNA is what's termed a - some sources of DNA are termed "poor sources" of DNA, such as finger, finger, sort of skin cells, are, it's more difficult to recover a DNA profile from there, from skin cells because it's not, there's not a lot of DNA present. However, salvia, for example, is a very rich source of DNA. If someone was to drink from a glass, for example, it's more likely that a full DNA profile will be recovered, because salvia is a rich source of DNA as is blood and semen, for example.
In cross-examination, the DNA expert gave the following evidence as to transference (03/06/19 T 1711.20): Q. I just want to put a number of propositions to you if I may. If you don't understand my proposition just tell me and I'll try and rephrase it. Do you agree that the tape lift collected from the glove is considered to be a trace DNA sample? A. Yes I agree. It's DNA - we can't tell the origination of that DNA. The biological source of it is determined a trace DNA sample. Q. So the answer to my question is yes? A. Yes that's correct. Q. Do you agree that trace DNA is DNA from which it is not possible to identify the types of cell from which the DNA originates? A. Yes I agree that is one definition of trace DNA. Q. And do you agree that in recent years there has been a significant advancement in the sensitivity of forensic DNA testing? A. I agree, yes. Q. So much so that it is no longer possible to assume that any trace DNA profiles are the result of recent direct contact? A. We cannot determine that any DNA, trace DNA is from recent direct contact, that's correct. There's a large amount of variables that are affecting DNA transfer. Q. And I think you've made some of this clear in your earlier evidence-in-chief that I think you told us that DNA can be deposited, that is placed upon another object in a number of different ways, correct? A. That's correct. Q. It could be deposited through handling an object or wearing clothing, is that right? A. Yes that's right. Q. And that's known as primary DNA is that right? A. Primary transfer, yes that's correct. Q. And due to the sensitivity of modern DNA profiling, if I can put this proposition to you, it can also be detected when it has been transferred indirectly via another person or an object? A. That's correct. Studies have shown that indirect or secondary transfer can occur. Q. And you very helpfully gave us an example of where you said a person shakes another person's hand and DNA can be transferred in that right, is that right? A. Yes. Q. Although you mentioned that DNA is less likely to be transferred in that way because fingers are ordinarily not as rich a source of DNA as say for example saliva, which you made clear, is that right? A. That's correct, in comparison to something like saliva, a rich source, that's - a poorer sourced is less likely to obtain recoverable amounts of DNA. Q. And just using your example, tell me whether you agree with this, person A shakes hands with person B who then makes contact with an object? A. Yes. Q. The DNA from person A is detective on the object even though they may never have contact with the item themselves, is that right? A. Yes. Q. You also agree that the major contributor to a DNA profile does not necessarily relate to the last person to contact the item? A. That's correct. There have been studies that have shown that the last person to have contacted the item may not necessarily be the major contributor. There may be someone who's briefly touched something and not left very much DNA and the major contributor may originate from someone who has regular contact with it or is in present in greater amounts. Q. So in relation to R4, the glove, is it not possible to determine how or when the DNA in that glove was deposited, do you agree? A. There is no way - there's no method to age DNA, to age trace DNA on an item. Q. And do you agree with this, it's also not possible to determine whether this DNA was deposited via direct contact with the glove or via another mechanism such as secondary transfer? A. Not able to determine how the DNA was deposited on the glove just by looking at the DNA that's recovered on the glove. Q. So is the answer to my question yes? A. I'm not - I'm not able to determine the method by which DNA was transferred onto the glove. Q. So the answer to my question is yes? A. Yes.
A partial DNA profile from an unidentified "Individual B" was also recovered from the top of the pink cigarette lighter (03/06/19 T 1696.39) and the same "Individual B" could not be excluded as a contributor to a mixed profile originating from at least three individuals on the open/close valve on one of the two gas bottles (03/06/19 T 1697.24).

Crown address

The Crown submitted that the Monique Hayes (3) telephone was used by the applicant on 31 January and 1 February 2015 (20/06/19 T 2317.19-25); and that both the Anthony Mouhtaris Snr (1) and Anthony Mouhtaris Snr (2) telephones were used by Mr Mouhtaris on 31 January and 1 February 2015 (20/06/19 T 2318.07).
The Crown submitted that the evidence established that both the applicant and Mr Mouhtaris drove in the applicant's vehicle to the Coles Express service station at Bass Hill (20/06/19 T 2318.30).
The Crown submitted the applicant's statement to police on 1 February 2015 about the theft of his vehicle the night before from outside his mother's home in Georges Hall "was a lie to cover up his involvement and the involvement of his vehicle in the commission of the offence" (20/06/19 T 2318.37-38).
The Crown submitted that the evidence established that the applicant, Mr Mouhtaris and possibly other people drove in the applicant's vehicle to the scene of the incident at Picnic Point, taking with them the two gas bottles obtained by Mr Mouhtaris from the Coles Express at Bass Hill; and that the men took with them "a quantity of fuel". At 20/06/19 T 2319.05-31, the Crown submitted: The Crown says the evidence establishes that Mr Houda's vehicle was then parked in close proximity to the Nissan Navara that Mr Yarnton was asleep in at the time in a way where the rear of Mr Houda's vehicle was facing the rear of the Nissan Navara - and to be clear that is on the same side of the road so that Mr Houda's vehicle effectively was parked facing in the opposite direction. The Crown submits to you that the evidence establishes that Fady Houda and-or Anthony Mouhtaris and-or others poured fuel in and around the vehicle occupied by Dean Yarnton and placed a gas bottle on the rear seat of the vehicle and turned it on. A second gas bottle was placed on the ground near the fuel tank and also turned on. The Crown says the evidence establishes that Fady Houda and Anthony Mouhtaris each wore the same black glove at some point whilst handling various items including the gas bottles and the petrol container. The Crown submits that something occurred, it is clear, possibly Dean Yarnton waking from his sleep which caused one of the persons present to drop a cigarette lighter and the glove and flee the scene in Fady Houda's vehicle. Fady Houda and Anthony Mouhtaris and possibly others then drove in Fady Houda's vehicle to Karimbla Road in Caringbah where the vehicle was deliberately set on fire in an attempt to destroy evidence. Either on the way to the scene of the incident at Picnic Point or on the way to Karimbla Road, Caringbah or both the quantity of fuel was stored in the boot of the vehicle and the Crown submits to you that the evidence establishes that Fady Houda falsely reported his vehicle to have been stolen the previous night in an attempt to hide his involvement in the commission of the offence.
In relation to the DNA evidence, the Crown submitted (21/06/19 T 2347.30-2348.07): I told you earlier in my address that the Crown said the evidence proved that both Mr Mouhtaris and Mr Houda were present at the scene at Picnic Point in the early hours of 1 February 2015. You'll recall the evidence of, well, Ms Sisadic in particular, the DNA expert, and the fact that a tape lift of the black glove from inside the fingers or finger of the black glove was subjected to DNA testing. The DNA recovered was a mixture that originated from at least three individuals, and Fady Houda and Anthony Mouhtaris could not be excluded as the major contributors to that mixture. That's all quite scientific language, but the bottom line is that, if you like, the DNA of both Mr Houda and Mr Mouhtaris was found inside that black glove, and you will recall the close proximity - the location, if you like - of the black glove to the Navara and the cigarette lighter as well for that matter. Ms Sisadic gave evidence that it's not possible to determine how the DNA was deposited on the glove just by looking at the DNA that's recovered from the glove, but we are left with this question, members of the jury. How did a glove containing the DNA of Mr Houda and Mr Mouhtaris come to be left at the scene? … The Crown says that having carefully considered that part of the evidence the only reasonable inference to draw is that Mr Houda's DNA and Mr Mouhtaris' [DNA] was deposited on that glove when they were both at the scene. The Crown says look at all of the phone contact between Mr Houda, Mr Mouhtaris, Ms Hayes and Ms Yarnton and therein lies your answer. The glove was left behind in a failed attempt to set the Navara alight whilst Dean Yarnton was inside the vehicle.
Towards the end of his address, the Crown Prosecutor said (21/06/19 T 2369.37): The communications summary as well is relevant to, the Crown says, in terms of establishing the contact and who was present at the scene, and of course there is also the DNA evidence the Crown relies upon to prove the presence of Mr Houda and Mr Moutharis [sic] at the scene.
Earlier, in the course of addressing the jury about Ms Yarnton's first interview with police, the Crown Prosecutor had said (21/06/19 T 2350.44-2351.12): At every step of the way, Sharon Yarnton has sought to shift the blame to someone other than herself. Even in the very first interview, even though Ms Yarnton told police she knew nothing about what happened, she very subtly pointed her finger, even in that interview, at Mr Houda and it's so subtle it's actually quite easy to miss but you may recall towards the end of the interview, Ms Yarnton telling police about seeing a car up ahead and saying "I thought they were just canoodling, though there was a car up ahead. I wasn't going to leave him stranded, I was only going to the toilet, do you know what? It was a silver car." And that is Ms Yarnton very subtly trying to point the finger at Mr Houda without even saying it overtly, without even saying to police "I think it was Mr Houda that was responsible", even back in that first interview, Ms Yarnton was trying to shift the blame by pointing the finger at someone else. Of course, in the second interview, it's no longer subtle. She very directly points the finger at Mr Houda and that's something I'll come to very shortly.
As to Ms Yarnton's second interview with police, the Crown Prosecutor said (21/06/19 T 2363.17-2365.23): I've just dealt with the first of the two interviews that Ms Yarnton took part in with police, and I want to move now to the second of those and just say something to you briefly about what Ms Yarnton said in that interview. First of all, Ms Yarnton told the police a very different version, if you like, to the first interview. In the first interview she said she knew nothing about the events that happened at Picnic Point. In the second interview what she was seeking to do, the Crown says, was to lay the blame at the feet of Mr Houda. Then she spoke about a conversation that she had with Mr Houda at the apartment of Mr Houda and Ms Hayes at Caringbah. You may recall discussion about knee-capping Dean Yarnton, knocking him and also smacking him - smacking him around. Ms Yarnton told police that eventually she agreed to let Mr Houda and possibly his cousin to smack or clip Dean in the head, and there was talk about Mr Houda suggesting "I'll tell him you're a top chick", something like that. But the Crown says, of course, that that version by Ms Yarnton is just completely implausible and you would reject it outright. Ms Yarnton claims that she later was told by Mr Houda that he and his cousin, or others, were going to see Dean later that night, if you like to carry out their agreement, and that she begged him to not do that. The Crown says that just simply makes no sense. Ms Yarnton says that she didn't think Mr Houda was serious when he had that discussion with her, but why would she then need to beg him please not to go and smack or clip Dean around the head? What Ms Yarnton is seeking to do is to, if you like, give police an alternative possibility, but the reality is there was a plan to kill Dean Yarnton. It was not to smack him or clip him the head. Certainly to smack or clip Mr Yarnton in the head would not need to involve any gas bottles, fuel, anything like that. Sharon Yarnton told police in that interview that she made no attempt to contact the police when she realised Mr Houda was tailgating her in the area of Henry Lawson drive near the Meccano Set because her phone had fallen down the side of the seat, and again the Crown says that that just is simply not credible. You would not believe that. Sharon Yarnton told police that she pulled over to the side of the road on Henry Lawson Drive at Picnic Point because she felt physically sick at what had just occurred, that is being tailgated by Mr Houda, and sick, if you like, physically sick at the prospect of some harm coming to her then-husband Dean Yarnton. I just want to take you through the conversation that Sharon Yarnton says that she had with Monique Hayes when she was present at the scene at Picnic Point in the bushes. She recalls this conversation: that Ms Hayes said to her "They're already there." That Sharon Yarnton said "What the fuck is going on?"" That Ms Hayes said "Fady is there with his cousins." Sharon Yarnton said "Call it off." Ms Hayes said "It's too late. They've gassed the car." Sharon Yarnton said "Stop it. He'll kill them and he'll kill me." Ms Hayes said "The cunt deserves it." Sharon Yarnton said "Seriously, stop it, Monique." Ms Hayes said "It's okay. The kids will survive without him." Sharon Yarnton said "No, they won't. That's their father." Monique Hayes said "Just tell them someone was tailgating you." Sharon Yarnton said "Some cunt was tailgating me from the Meccano Set." Monique Hayes said "Yeah, that was Fady and his cuz." Sharon Yarnton said "You fucking cunt. This wasn't supposed to happen." Monique Hayes said "Get out of there. Get out of there quick." And that Sharon Yarnton said "I've got his keys. I'm trying to piss", and then terminated the call. But members of the jury - and I know I've already taken you through this, but compare that version of events to page 16 of the communication summary. I've already taken you through this, but from entries 745 onwards, just to remind you, these are the messages. "Hey, where are they????" and then four question marks, and Ms Hayes responding by "Um, work I'm sure. Why, is everything okay?" and Sharon sending a message "No. No-one is here." Members of the jury, these messages completely contradict Sharon Yarnton's version of events in that second interview, in particular the conversation that I've just read to you that Sharon Yarnton claims that she had with Monique Hayes at the scene. Rather than Ms Yarnton saying "What the fuck is going on" to Ms Hayes she sent a message "Hey, where are they????" with four question marks. If you look at the message "Tell him now", members of the jury, you cannot reconcile that message in any other way than an instruction by Ms Yarnton to Ms Hayes. It didn't say "Call it off." It didn't say "Stop it. He'll kill them and he'll kill me." It didn't say "Seriously, stop it, Monique." It was part of the plan. Sharon Yarnton sent a message to Monique Hayes, "Tell him now." "Trigger the plan that we've already agreed upon," and "him" is clearly a reference to either Mr Houda or Mr Mouhtaris who were waiting nearby for the green light to go ahead to set fire to the vehicle in which Mr Yarnton was asleep. Members of the jury, Sharon Yarnton told police that she felt so scared and frightened at the prospect of Mr Houda harming her husband that it caused her to feel physically sick to the point where she needed to stop the car. Members of the jury, Ms Yarnton felt so scared and so frightened that she sent this: an emoji of a dog jumping for joy with a love heart right next to its head. This is exhibit QQQ. These are the actual messages downloaded by Detective Gray from the iPhone - I beg your pardon, sorry, the iPhone of Ms Yarnton. They coincide identically to the messages in your communication summary, exhibit DDD, and they coincide of course - the source of that document is the Cellebrite extraction report from the Huawei mobile phone. What you don't have in that summary or in the Cellebrite is the actual emoji that's contained within exhibit QQQ. There is no other way to reconcile that emoji than the joy that Ms Yarnton was feeling when she sent it, thinking that her husband had just been killed. One final point on the arrival, if you like, on Ms Yarnton's version, of Mr Houda at the scene. Just think about this for one moment. How would Mr Houda know where to find the Navara on Henry Lawson Drive at Picnic Point? On Ms Yarnton's version there was no plan to meet at that location. At one point Ms Yarnton said she saw Mr Houda in a vehicle behind her, tailgating her, but that she sped up, pulled over into a side street, waited for 15 minutes to lose him and then continued on with her journey. The only way Mr Houda would have known where to find the vehicle was if it was part of the plan for Ms Yarnton to stop the vehicle in the location where it was. Of course, it wasn't the usual route that Sharon Yarnton took back to Menai, because she told police she didn't take that left turn at Milperra Road.
As to Ms Hayes' notebook statement, the Crown Prosecutor said (21/06/19 T 2366.41-2367.15): And then of course the statement that you have in evidence, I'm talking [here] about the notebook statement taken by Joshua Carlson sets out quite a different version of events to the interview that Ms Hayes had with police on 2 February 2015. She recounts that the events of Thursday 29 January 2015 after she met up with Sharon Yarnton at Caringbah McDonald's wherein Sharon Yarnton asked her, that is Ms Hayes, if she would "kill, knock" her husband. And according to Ms Hayes, Ms Yarnton said "This isn't a fucking joke, I'm not fucking around", that is, in relation to this request that Ms Hayes kill her husband. In that statement, she said that Sharon Yarnton offered her the sum of $20,000 and showed her a bag containing a number of envelopes containing large sums of cash and asked her, again, asked Ms Hayes again "Would you do it?" and Ms Hayes told police that she said "No" and that as a result, Sharon became agitated. Once again, that notebook of course is the information that Ms Hayes told to Joshua Carlson. The Crown says of course that that version, if you like, those versions by Ms Hayes are not true. The Crown says Ms Hayes was clearly part of an agreement to kill Dean Yarnton and the communication summary contradicts both versions provided by Ms Hayes. If you look carefully at those particular pages that I took you to, the messages being sent by Ms Hayes, in particular, the message "Open all windows and tank" are not reconcilable with her, that is with Ms Hayes' version to police on either the police interview or the statement provided to Joshua Carlson.
Following the Crown's address, her Honour said (21/06/19 T 2373.17-36): Another thing I want to remind you about is that you are hearing separate trials that are being run at the same time. So I'll be explaining this in more detail in my summing-up, but you will be required to consider the case of each accused in respect of each charge on the indictment separately. What that means, for example, is that when you are looking at the position of one accused you cannot look at what a different accused has, for example, said to police. It would be impermissible for you in looking at the interview of one accused with police and compare it and contrast it with what another accused has said to police because you can't have regard when you look at one accused case or the case concerning one accused to what another accused has said to police. You must really exercise a disciplined mind to quarantine the cases, and you will consider each case with that very strict quarantining, and for one accused its irrelevant what another accused has said to police. Completely irrelevant. You don't go there. Then, when you've finished considering that, you go to another accused and you only look at the evidence pertaining to that accused and if there's an interview with police with that accused, then you can look at it.

Counsel for Ms Yarnton's address

Counsel for Ms Yarnton submitted that Ms Yarnton's good character (which had been raised during the trial) entitled the jury to reason that she was "less likely to lie or give a false account" (24/06/19 T 2392.30). As to Ms Yarnton's first and second police interviews, her Counsel submitted at (24/06/19 T 2427.43-2429.10): Now I want to turn briefly to those conversations that Ms Yarnton had with the police. So she had conversations with the police at the scene, at Picnic Point. There were two records of interview and I'm going to ask you to consider what Ms Yarnton is alleged to have told police in light of a number of factors. I've already mentioned the first and it's the accuracy of the police officer's recounting of the conversations may be compromised because they were not recorded contemporaneously, either in writing or electronically, nor were they adopted at the scene. Now I have to be fair to the police. A lot of the conversations were put to Ms Yarnton later during records of interview and often they were adopted but there's been a transition of time then before they were adopted. By the time that they were put to Ms Yarnton, she was - I'll use the word suffering, but she had been absent her medication when she participated in that first record of interview. It had been a period of what appeared to be sleepless, lack of sleep and you might think no doubt it was a stressful situation. She was, and you know this, she was also injured. So these factors operated you might think to affect what she told police in the first record of interview but there are some aspects that are actually quite helpful, and I've just taken you to that part where she, not very clearly, but she generally speaks about the gas cylinders - well very clearly. Sorry, I'll withdraw that. She does very clearly speak about the gas cylinders and the fuel being a complete surprise to her and she repeatedly said that she had no idea whether the cylinders came from, and she gave that evidence or questions and answers that I've taken you to about how the gas cylinders might have ended up where they were. Now nobody spoke to her about how they ended up, she just provided that information to police. So it seems to be that possibly is the most reliable way to understand how the gas cylinders ended up where they were. By the second record of interview it appears that Ms Yarnton had received some form of medication. You might think that during that record of interview she seems a lot calmer than she was in the first record of interview, perhaps still lacking in sleep, but she's still by that stage is very clear she had no idea where the gas cylinders and the fuel came from. So it seems apparent you might think that whatever plan is broadly talked about in that second record of interview, gas and fuel was never a part of the proposal that she talks about discussing Monique's in that record of interview. And you'll recall that she seemed to think that what was being suggested to her - I think it was by Fady, it wasn't by Monique, it was by Fady - was that she was sorry and she thought it was a joke. She thought it was, she might have used the word "bullshit" or a phrase like that. So the fact remains that Ms Yarnton at no time positively knew where the gas cylinders and fluid came from. She didn't look under the seats of the utility that was ordinarily driven by her husband not her. If, for example, items had been stored under there, there is no way that she would've seen them at night. She had no reason to check the ute. But there are consistencies between the first record of interview and the second record of interview including that important one that I've just highlighted. Surprised by the gas and the fuel. No idea that was going to happen. As I said, you might think that the account Ms Yarnton gives in the second record of interview is the most plausible account given by her and really the only one that explains what went on. Now I'm going to dub that account as the "I, Tonya scenario, Theory or Defence", and that's a film about ice skating. Now I'm going to actually finish off with that scenario, so I'll take you to it later on, but it's about a plan going off the rails really. Someone taking the idea of a plan and going off pissed [sic] if you're a skier and doing something else. Can I just say this about the second record of interview? If you accept that that scenario is true or it is a reasonable hypothesis, then your task is simple. You must find Ms Yarnton not guilty because it's reasonable that things occurred, as she described, in that record of interview. More clearly put, she was on this account part of a plan to give Mr Yarnton a clip about the head, a plan that she actually believed to be a joke. When she realised that there was some follow through on the plan she tried to stop to no avail. So she wasn't part of the plan. I'll come back to that.
Towards the end of her address, counsel addressed the jury further on Ms Yarnton's second interview and submitted (25/06/19 T 2467.18-2468.49): Now in that second record of interview, and you'll have it with you in the jury room, Ms Yarnton speaks of this occasion where Fady Houda suggested that he could get someone to "knee-cap him", talking about Dean Yarnton senior and Ms Yarnton's response was "I'm not into that shit. Fuck off". And then Mr Houda said "I can get someone to knock him" and Ms Yarnton said "I don't think so. I lock pricks up every day". The flavour you get from what she says in the record of interview, it's not only a flavour actually, but it is that she didn't realise that Mr Houda was serious or she didn't take him seriously. She says at one point "Are you for fucking real?" and she says to him "Mate, you've fucking lost the plot". So you can see that what she's considering is that he's really not being serious. She also indicated that after a vague agreement to "Yeah, smack him in the head", she also indicated that she didn't want a part of it. And then Mr Houda moved on to suggesting that he might talk to Dean Yarnton senior and tell Dean Yarnton senior that Ms Yarnton is a top chick. There was the progression of time and then on the morning I think it was of 31 January, Ms Yarnton was told by Mr Houda "We're gong [sic: going] to see Dean tonight" and Ms Yarnton said "Please don't. I don't need this. Dean is dangerous. Dean will kill you". And she said "Please don't. If you hurt him my kids will never forgive me". You can take yourself through the record of interview and you can watch it, but she said "You need to call it off. Please, I'm telling you to stop. I'll tell the coppers it was you". There was talk of torching a car and she said "Why would I want that? It's my car". I invite you to take yourselves very carefully through that second record of interview but there's also evidence that Ms Yarnton tried to call it off and she was told "It's too late. They've gassed her car" and she said "Stop it. He'll kill them. He'll kill me". She later said "Seriously, stop it". Ms Hayes said "The kids will survive without him" and Ms Yarnton said "No they won't. That's their father". She also said "You fucking cunt, this wasn't supposed to happen". And she said in that record of interview that that was a true version. So I suggest to you that it's quite clear from that particular record of interview that Ms Yarnton did not want Mr Yarnton to die. She wanted him in their children's lives even though she had reason to have some animus toward him, she wanted him in their lives. She had thought originally that this proposition of smacking him or knocking him was a joke. So this is what I referred to earlier on in submissions as what I'll call the "I, Tonya defence" and I'm just going to refer briefly to that film starring Margot Robbie - and this is not evidence. This is just an analogy to assist you with how I suggest you might think about the evidence. That was this movie about a real life incident between Tonya Harding and Nancy Kerrigan, and Tonya Harding had received some death threats and actually her ex-husband contact a friend to send phoney death threats back to Nancy Kerrigan to discourage her from competing. That friend then engaged two very seemingly unintelligent people in the task and they decided the great idea would be to travel a distance to where Nancy Kerrigan was training; take out a retractable baton and baton her on the knees. They did that and caused her injury, but she was actually able to compete in the competition at any rate later down the track. They were caught. They left a trail of credit cards, CCTV of them in the car and all that sort of things. Tonya Harding wasn't convicted of her actual involvement in any plan to harm her rival. So that film was a fictionalised version of a reasonably well-known real life event, but there are parallels and they're parallels like the ex-husband hired someone to write letters, but that someone engaged others who decided to do their own plan. They went off plan. They went off pissed [piste], if you're a skier. They took matters into their own hands and apparently, the ex-husband tried to call it off to no avail. So what the ex-husband's friend's friends did was make a new plan with entirely new and far more serious potential outcome. It wasn't a plan that Tonya's ex-husband was ever a party to and Tonya Harding was apparently not a party to it, although that's equivocal in real life. So what I'm suggesting to you is that that is a analogist situation to what Ms Yarnton has described in the second record of interview save, in the case that you are considering, nobody got hurt. And you might think that the second record of interview, where Ms Yarnton you might think is much calmer than the first interview, offers a very plausible explanation of the prequel to what eventually happened. Now there's a tagline from that film, "I Tonya", and it's this. Tonya, by the way, was seen as an outsider in the skating circles, and the tagline is "Fitting in is overrated". Now that's a tagline that might be useful to you in your consideration of these proceedings this way. Just because a scenario outlined in the second record of interview might not fit in, doesn't fit in, with the Crown case theory, that does not mean you automatically reject that second record of interview. If for you it's a reasonable plausible possibility that cannot be rejected, then the Crown cannot and has not proved its case.
Following the address of counsel for Ms Yarnton, her Honour addressed counsel's reference to the "I, Tonya" movie and directed the jury that they should put out of their minds any consideration of that movie, the case connected with the movie and any outcome of that case. Her Honour directed the jury that those matters were not relevant because they were not in evidence and should not be taken into account when the jury considered their verdicts in each accused's case (25/06/19 T 2475.03). The applicant here complains that this direction should have been accompanied by a very firm direction that the jury could not use the records of interview of Ms Yarnton in the case against the other accused (though, as noted below, a direction was given in summing up that the jury could not look at what an accused person told the police when considering the position of another accused).

Directions given in summing-up

In the course of summing-up, and in the context of directions as to the onus and standard of proof, her Honour said (26/06/19 SU 9-10): In this case, there has been a version of events taken by police, or additionally in the case of Ms Hayes, taken by Officer Carlson. Those two accused are entitled to rely upon the account given by herself and each of those accused can ask you to take into account that version with the other evidence called by the Crown. Neither Ms Hayes nor Ms Yarnton is required to prove that the account she herself gave is true. Even though they gave an account and it is before you for your proper consideration, neither accused is bound to prove any of the matters raised in that account. The Crown, in discharging its obligation to prove the accused's guilt, must satisfy you that the version of events given by an accused in that accused's case could not reasonably be true. Ladies and gentlemen, I spoke to you about that at the time you heard the accounts given by those two accused. I repeat again, you must take into account what each has said in the context of you looking at all of the evidence. Neither accused must prove any matter to you in that version of events. You can only look at what an accused person tells the police when you are looking at that accused's case. You cannot look at what an accused person tells the police when you are considering the position of another accused and whether the Crown has proved that other accused guilty. You cannot contrast and compare a version, for example, given by Ms Yarnton and a version given by Ms Hayes, because that would be illogical and impermissible. The reason for that is that, when you are looking at whether the Crown has proved the case against one accused, you must not look at the version given by another accused. If, after you have considered in an accused's case the version given to police, or in Ms Hayes' case also to Officer Carlson, you, in looking at that accused's case, consider that it gives rise to a reasonable possibility of innocence, then the Crown must disprove that version beyond reasonable doubt. In other words, the Crown must prove the accused's guilt based on the evidence and it must satisfy you that the account given to police and/or to Officer Carlson could not reasonably be true.
At SU 12-15, her Honour went on to say: Now, ladies and gentlemen, I want to turn to the circumstance that the Crown has brought joint trials before you, and you have heard from me and all the barristers in that regard but, again, here we are at the end of the trial. It is important that I pull that together for you so you understand it in the context of all of the trial. As you are well aware by now, this is a joint trial of four accused and I told you at the outset of the trial that this was simply a matter of administrative convenience because some of the evidence would be in common for all or some of the accused. I also told you that you have to consider the case against each accused person separately when considering your verdicts. You will be required to return a separate verdict in respect of each individual accused. You should not, in your deliberations, try to determine whether all of the accused are guilty without considering them as individuals and giving them each separate consideration. Simply because the Crown allegation is that they are each guilty of the same offence, it does not follow that you approach your deliberations in the same way. There is nothing in law, or for that matter in common sense, which requires you to return the same verdict in respect of each individual accused and I want to explain what I mean by that. As I have said, in order to find an accused guilty of an offence, the Crown must satisfy you of each element of the offence beyond reasonable doubt. The evidence brought by the Crown in respect of each of the accused is, in part, different from the evidence brought in respect of the other accused. Mr Crown in his address sought to identify separately what was relied upon in respect of each individual accused and, as the evidence was presented to you, you heard Mr Crown and the barristers and I regularly try and assist you with understanding whether evidence was led in respect of one or more or all of the accused. If you have any need to refresh your memory as to whether a part of the evidence applied to one or more accused, please send me a note because it is very important you maintain separate consideration for each accused, and only in respect of the evidence pertaining to each accused alone. I have explained that you must consider the evidence concerning each accused separately from the evidence concerning the other accused people. For each accused, the Crown must prove that the accused person was in a joint criminal enterprise, being the agreement as set out in the elements for the particular charge you are considering, and you have the elements document which I will turn to later. … Because the evidence brought by the Crown against each accused is, in part, different from the evidence brought against the other accused, and because you must consider the case concerning each accused separately from the case concerning the other accused, it follows that you do not have to bring the same verdict in respect of all of the accused. As I have said, the evidence relied upon by the Crown to prove the guilt of each accused differs. It has some areas in common, but there is a separate case being led in respect of each accused. You must not during the course of your deliberations take into account, in deciding whether the Crown has proved its case against one accused, evidence that was tendered only against another accused. It would be a breach of your duty to decide the case according to law, as well as grossly unfair, to use evidence against an accused which the Crown did not rely upon in proof of its case against that accused. Let me further explain that. Because all the lawyers understood that the Crown was leading a separate case in respect of each accused, even though there are some pieces in common, of course, the barristers have not sought to respond to matters in evidence that were not led against their own client. So it would be entirely unfair if you were to consider evidence led in the case of one accused when you are considering the case of another accused.
After a short adjournment, her Honour said (SU 23-24): … As you have heard, the barristers and I frequently say, "You are hearing separate trials." I have mentioned that again in my remarks so far but I wish to come back to it from this point of view. It is really [to] emphasise to you that what I am telling you that you must do, is exercise a very disciplined mind in these proceedings. You will need to rigorously make sure that, when you are looking at the position of an accused and whether the Crown has proved the guilt of that accused for the particular charge you are looking at, you are only looking at the evidence concerning that accused. You are being trusted and required to exercise the discipline of mind where you will completely quarantine, that is, remove from your consideration, any of the evidence you have heard in another accused's case. I used the example of accounts by different accused to police. Ms Yarnton has given an account, for example. Ms Hayes has given an account. Do not contrast and compare. Do not look to find if one persuades you more than the other. That is illogical because, when you are looking at one accused's case, you are only looking at the evidence in that case. You must be very, very rigorous about that. As I said, you are not only being trusted to do that, you are required to do that.
Her Honour directed the jury as to the absence of good character evidence in the case of the applicant and Ms Hayes (SU 27-28): Ladies and gentlemen, I want to turn to the aspect of character evidence. You have heard that character evidence has been raised in respect of two accused and I will turn to how you consider that when I outline those individual positions. Just for the moment, I want to address the circumstance that you would have noted that for two other accused, there has not been any character evidence led. Do not be mystified by that. Do not think you can draw any conclusion about that. I warn you that you must not be prejudiced in any way by the circumstance that two accused have not led character evidence. Indeed, they are under no obligation to lead any evidence or prove any matter in this trial. You must not draw any adverse inference against any accused because of the situation that, whereas some other accused chose to put that evidence before you, two other accused have decided not to go into that area of evidence. You must not draw any adverse conclusion, because that would be contrary to the right to silence. The fact is that the character of those two people for whom there has not been any evidence led is simply not in issue. It is not a relevant consideration for you in respect of your consideration of the case concerning them.
As to the accounts given by Ms Yarnton and Ms Hayes, her Honour said (SU 50-51): Ladies and gentlemen, I spoke to you earlier about the onus of proof being on the Crown; the Crown must prove the guilt of an accused beyond reasonable doubt. That is the high standard of proof the Crown must achieve before you can find an accused guilty, and the words "beyond reasonable doubt" mean exactly what they say, proof beyond reasonable doubt. Ladies and gentlemen, I have also told you that, in respect of accounts given by an accused person to police or to a prison officer, there is no obligation on either of the accused, Ms Yarnton or Ms Hayes, to persuade you to accept that evidence. The Crown must satisfy you beyond reasonable doubt that you should reject is as a reasonably possible version of the facts. If the evidence leaves you with a reasonable doubt as to whether the Crown has made out its case in respect of any element of the offence or any essential fact that it must prove, then you are bound in law to bring in a verdict of not guilty. In other words, you do not have to believe that the accused told the police or the prison officer the truth before she is entitled to be found not guilty. If, at the end of your deliberations, you find that the Crown has failed to eliminate a reasonable possibility that the version presented in those accounts is true, then the Crown has failed in its obligation to persuade you of that accused's guilt beyond reasonable doubt.
Her Honour gave directions as to Ms Yarnton's good character case (at SU 71 -72): …I want to turn now to the submissions on behalf of Ms Yarnton. It was the case that you were reminded by Ms Yarnton's counsel that Ms Yarnton has no obligation to prove anything in this trial. The onus at all times remains on the Crown to prove beyond reasonable doubt each element of the alleged offences. You were also reminded that there was evidence in the Crown case that Ms Yarnton has no criminal convictions whatsoever and, therefore, you should accept the fact that she is a person of good character. Ladies and gentlemen, the law provides that a jury is entitled to take evidence of an accused's good character into account in favour of her on the question of whether the Crown has proved the accused's guilt beyond reasonable doubt. The fact that the accused is a person of good character is relevant to the likelihood of her having committed the offence alleged. You can take into account the accused's good character by reasoning that such a person is unlikely to have committed the offence charged by the Crown. Whether you do reason in that way is a matter for you. Furthermore, you can use the fact that the accused is a person of good character to support her credibility. You may reason that a person of good character is less likely to lie or give a false account to the police. Whether you reason in that way is a matter for you to determine. None of this means, of course, that good character provides the accused with some kind of defence. It is only one of the many factors which you are to take into account in determining whether you are satisfied beyond reasonable doubt of the guilt of the accused. What weight you give to the fact that the accused is a person of good character is completely a matter for you but you should take it into account in the ways I have indicated to you.
As to the submissions made by Ms Yarnton's Counsel about Ms Yarnton's records of interview, her Honour said (SU 79-80): In respect of Ms Yarnton's first ERISP, it was submitted Sharon Yarnton very clearly spoke about the gas cylinders and the fuel being a complete surprise to her. She repeatedly said that she had no idea where the cylinders came from. She gave that evidence in the questions and answers that Ms Phelps reminded you of with respect to how the gas cylinders might have ended up where they were. For example, Ms Phelps gave you a reference in the evidence. Then when Ms Yarnton participated in the first record of interview, it was submitted she was tired, apparently anxious, without sleep and without medication. Then Ms Phelps turned to the conversations between the interviews. Between the two interviews, Sharon Yarnton had a conversation with Detectives Smith and Lawson who made handwritten notes of it. Detective Smith later typed a document from those notes, but the handwritten notes are more reliable, says Ms Phelps. You were taken to portions that he omitted. Then Ms Phelps turned to the second ERISP, or interview, conducted by police with Ms Yarnton and by the time of that second ERISP, Ms Yarnton had received some medication and appeared calmer than in the first ERISP. She remained very clear she had no idea where the gas cylinders and the fuel came from. Whatever plan was broadly talked about in that second record of interview, gas and fuel were never a part of any proposal that was discussed. Sharon Yarnton thought Fady was joking. Ms Yarnton was never a party to a plan to kill Dean Yarnton. Ms Phelps submitted you might think that the account Ms Yarnton gives in the second record of interview is the most plausible account given by her and, really, the only one that explains what went on. Ms Phelps said if you accept that that scenario is true or it is a reasonable hypothesis, then your task is simple. You must find Ms Yarnton not guilty, because it is reasonable that things occurred as she described in that record of interview.
Her Honour then summed up the Crown case to the jury by distilling the factual propositions upon which the Crown case was based (SU 63-64): The Crown submitted that you would be satisfied that the evidence established the following facts: - number 1, the phone number ending 414 and coloured light blue in exhibit DDDD was a number used by the accused Ms Yarnton; - two, the phone number ending 506 and coloured light green in exhibit DDDD was a number used by the accused Ms Hayes; - three, the phone number ending 178 and coloured green in exhibit DDDD was a number used by the accused Ms Hayes; - four, the phone number ending 050 and coloured orange in exhibit DDDD was a number used by the accused Mr Houda; - five, the phone number ending 488 and coloured dark blue/grey in exhibit DDDD was the number used by the accused Mr Mouhtaris; - six, Mr Houda and Mr Mouhtaris drove in Mr Houda's car to the Coles Express service station at Bass Hill on the night of 31 January 2015 at around 10.45pm; - seven, Mr Mouhtaris purchased a new 8.5 kilogram gas bottle and stole a second one from the Coles Express service station at around 10.45pm on Saturday 31 January 2015 and he did so for the sole reason of using those two gas bottles in the commission of the offence; - eight, Ms Yarnton stopped the car that she was driving at a prearranged location and this location was chosen for its remoteness; - nine, Mr Houda and Mr Mouhtaris and possibly others drove in Mr Houda's car to the scene of the incident at Picnic Point, taking with them the two gas bottles earlier obtained from the Coles Express service station and a quantity of fuel - ten, Mr Houda's car was then parked in close proximity to the Nissan Navara that Dean Yarnton was asleep in at the time in a manner whereby the rear of Mr Houda's car was facing the rear of the Nissan Navara; - eleven, Mr Houda and/or Mr Mouhtaris and/or others poured fuel in and around the vehicle occupied by Dean Yarnton and placed a gas bottle on the rear seat of the car and turned it on and a second gas bottle was placed on the ground near the fuel tank and also turned on; - twelve, Mr Houda and Mr Mouhtaris each wore the same black glove at some point whilst handling various items, including the gas bottles and the petrol container; - thirteen, something occurred, possibly Dean Yarnton waking from his sleep, which caused one of the persons present to drop a cigarette lighter and the glove and flee the scene in Mr Houda's car; - fourteen, Mr Houda and Mr Mouhtaris and possibly others then drove in Mr Houda's car to Karimbla Road in Caringbah where the car was deliberately set on fire in an attempt to destroy evidence - the location of the fire or Mr Houda's car was approximately 400 metres from the residence of Mr Houda, Mr Mouhtaris and Ms Hayes; - fifteen, either on the way to the scene of the incident at Picnic Point or on the way to Karimbla Road, Caringbah, or both, the quantity of fuel was stored in the boot of the vehicle; - sixteen, Mr Houda falsely reported his car to have been stolen the previous night in an attempt to hide his involvement in the commission of the offence. The Crown submitted that you would be satisfied that each of the accused, and possibly others, were part of a joint criminal enterprise to kill Dean Yarnton or, in the alternative, part of a joint criminal enterprise to cause really serious injury to Dean Yarnton. The Crown submitted that you would be satisfied on the evidence of both the existence of such a joint criminal enterprise and the participation of each accused in that joint criminal enterprise based on the following evidence. Ladies and gentlemen, when I say "based on the following evidence" I read out to you earlier the circumstances relied upon by the Crown to prove the existence of a joint criminal enterprise to kill Dean Yarnton or alternatively, cause grievous bodily harm to Dean Yarnton and the participation of each accused in that joint criminal enterprise, and you will remember that I earlier read out to you 16 circumstances. The Crown submits to you that you would be satisfied on the evidence of both the existence of such a joint criminal enterprise and the participation of each accused in that joint criminal enterprise based on the matters that I read out in that list of 16 circumstances.
The specific direction of law her Honour gave in relation to the DNA evidence was as follows (SU 24-25): Now, ladies and gentlemen, I want to deal with some specific aspects of evidence for directions of law and then we will turn to the elements documents. First of all I want to look at the DNA evidence that you have heard. Bear in mind that all the parties agree, in accordance with the evidence given to you, that DNA evidence speaks in terms of a DNA profile being identified or not being identified. Where a DNA profile is identified, the experts talk about a degree of consistency, sometimes a very high degree of consistency, with the DNA of a person connected with the trial, or an unidentified person, for example. They talk about a consistency of profile rather than saying, "This is the DNA of someone." You are invited to infer that it is the DNA of a particular person. For example, you have heard that Mr Crown is inviting you to infer or conclude that the DNA profiles picked up on the black glove found at the scene bear such a degree of consistency with the DNA profiles of Mr Houda and Mr Mouhtaris respectively, that Mr Crown says you will conclude that it was, in fact, their DNA. Bear in mind that DNA talks about profiles and consistencies and you can look at that to see whether you can or cannot draw conclusions. Furthermore, you will bear in mind that all counsel have said that the DNA expert evidence cannot tell you how and when DNA was deposited on a sample, and you will bear those matters in mind. Again you are asked to draw conclusions from a combination of facts and there have been arguments about why you would not draw those conclusions. Those are matters for you, but I needed you to understand that, when you look at DNA evidence alone, the limitations of DNA evidence alone, you also must consider all of the evidence as a whole.

Ground 2

Turning then to ground 2 of the grounds of appeal, the applicant submits that, having regard only to the evidence admissible against him at his trial, the jury's verdict on count 1 was not supported by the evidence and is unreasonable. The principles to be applied under ground 2 are not in dispute and have been summarised above.

Applicant's submissions

The applicant submits that, on a review of only the evidence that was admissible in the Crown case against him, it was not open to the jury to be satisfied of the applicant's guilt because the Crown could not exclude a reasonable hypothesis consistent with his innocence. In particular, complaint is made that the effect of the DNA evidence was overstated (see 29/04/22 T 2-9).
The applicant submits that, in essence, the Crown case against him depended on seven propositions, as to each of which he submits as follows.
First, that on 31 January and 1 February 2015, the applicant was the user of the telephone number "Monique Hayes (3)".
The applicant readily accepts that the evidence permitted an inference to be drawn that whoever was the user of the Monique Hayes (3) telephone number was known to Ms Hayes and a person who may have been close to her (or at least in contact with her during January 2015). However, it is submitted that these inferences did not reduce the pool of potential users of the Monique Hayes (3) telephone number to one (i.e., the applicant).
In that context, the applicant accepts that the fact that the Monique Hayes (3) telephone number was used on several occasions during January 2015 to contact two relatives of the applicant is of some relevance to the question as to who may have been using the phone at those times, but the applicant says that it was not clear when those calls had been made. Further, it is said that those calls could equally have been made by Ms Hayes herself, given that she was married to the applicant and may well have also been in contact with his family members. (Pausing here, the fact that Ms Hayes may have used the Monique Hayes (3) number to call members of the applicant's family members does not account for why she would use a different phone to do so, particularly given that that phone was obviously utilised by another person given the calls made by it to Ms Hayes.)
The applicant says that it is of greater significance that there was no evidence that such a call was made to the applicant's relatives on 31 January or 1 February 2015. The applicant thus argues that there was only tenuous evidence to prove that the applicant was the user of the Monique Hayes (3) telephone number on 31 January and 1 February 2015.
It is further noted that, even if the applicant was the user of the Monique Hayes (3) telephone number on 31 January and 1 February 2015, the content of any communications that the applicant had at that time either with Ms Hayes or Mr Mouhtaris was not in evidence. It is said that it was the mere fact of contact (rather than any proof as to the nature or purpose of the contact), that was relied on to prove the applicant's participation in the joint criminal enterprise alleged by count 1.
The applicant says that, aside from the applicant's assertion in his statement to police that he had been driven to his home in Caringbah by a friend Anthony during the evening of 31 January 2015, there was no evidence as to where the applicant actually was on the night of the offence. Further, it is noted that a significant number of the telephone calls listed in Ex DDDD were calls of durations less than 5 seconds. It is submitted that it is doubtful, particularly in the light of the evidence of Mr Findlay, that these entries in the communications summary were connected calls.
Second, that during the evening of 31 January 2015, the applicant was in the company of Mr Mouhtaris, including when Mr Mouhtaris attended the Coles Express service station at Bass Hill and took possession of the two gas bottles at about 10.45pm. Third, that the applicant's vehicle was used to drive to and from the Coles Express Service Station at Bass Hill that evening.
As to the second and third propositions, the applicant contends that there was no evidence to prove that he was in the company of Mr Mouhtaris when Mr Mouhtaris attended the Coles Express service station at Bass Hill and took possession of the two gas bottles at about 10.45pm. It is said (the applicant here implicitly accepting that it was Mr Mouhtaris shown on the CCTV footage) that there were three possibilities: that Mr Mouhtaris and the applicant attended together (which was the Crown case); that Mr Mouhtaris attended alone; or that Mr Mouhtaris attended with one or more other people. It is submitted that all three possibilities were equally possible on the evidence as to that event presented during the Crown case.
The applicant argues that there was only very weak support for the proposition that the applicant's vehicle could be positively identified from the service station's CCTV footage or even that the vehicle said to be the appellant's entering the adjacent Strickland Street, was the same vehicle said to be the applicant's vehicle turning left out of Strickland Street and back onto the Hume Highway. Even assuming that the applicant's vehicle was driven to and from the Coles Express Service Station at Bass Hill, it is said that the only evidence as to who occupied the vehicle at that time, established that it was occupied by Mr Mouhtaris. Pausing here, the timing of the telephone call at 10.45pm on 31 January 2015 from the Monique Hayes (1) telephone number to the Monique Hayes (3) telephone number was at the time that Mr Mouhtaris was purchasing the gas bottle at the Bass Hill service station. It is inherently implausible that Ms Hayes was calling her husband (the applicant) if he was at home at the time, which at least places the applicant as likely to have been out of the house at that time and it was open to the jury to infer that he was in his own car at the time. As to the complaint made of the CCTV footage showing the silver car, the weight attributed to whether there was one middle rear tail light or not ultimately goes nowhere (see below).
Fourth, that at 12.16am, Ms Yarnton sent the applicant a Facebook message that read "Hey".
As to the fourth proposition, the applicant says that it was doubtful that the communication was accompanied by a "map grid or flag" (noting that proof of this depended on the evidence of Mr Yarnton and his evidence in this respect found no support from subsequent examinations undertaken by police of the iPhone on which he said he observed it or of Ms Yarnton's Facebook account). Further, it is said that there was no evidence that Ms Yarnton's message to the appellant via Facebook was received, read, or replied to by the applicant. It is said that there was no evidence that the applicant accessed Facebook at the relevant time.
Fifth, that at about 1.00am on 1 February 2015, the applicant was still in the company of Mr Mouhtaris, and was present at the scene of the offence (as was his vehicle).
As to the fifth proposition, the applicant says that the only evidence linking him to the scene of the offence was the DNA evidence relating to the black glove. The applicant argues that the Crown case theory (that both the applicant and Mr Mouhtaris shared the same black glove whilst handling various items at the scene, including the gas bottles and a petrol container) seems inherently unlikely.
The applicant submits that there was a fundamental difficulty with the evidence adduced by the Crown from the DNA expert. Noting that the expert advanced three scenarios as "likelihood ratios" (see above), the applicant says that there was no evidence adduced that one of these three scenarios was more likely than the other two; and no evidence of the comparative likelihood of them. It is noted that each possibility was only compared to the likelihood that the mixed profile originated from three unknown, unrelated individuals in the Australian population.
In addition, it is said that the possibility of transference in the circumstances of the applicant's case could not be discounted, given that the evidence was that the applicant and Mr Mouhtaris lived in the same apartment complex in Caringbah; and there was the very real possibility that Mr Mouhtaris may have been in the applicant's vehicle on the night of the offence either with the applicant (as the Crown case alleged), or alone, or together with others. It is said that there was no way to establish when and how a DNA profile consistent with the appellant's DNA profile was deposited onto the inside of the black glove.
Thus, it is said that the DNA evidence was insufficient proof to establish the applicant's presence at the scene of the offence (and that there was otherwise no evidence the applicant was at the scene of the offence). It is contended that the reasonable possibility that the applicant's DNA was on the inside of the black glove as a result of transference was not capable of being eliminated; nor was the further possibility that the applicant's DNA was already on the black glove as at the date of the offence (for example, because it was a black glove otherwise within his vehicle) (reference here being made to Seifeddine v R [2021] NSWCCA 214 at [46]-[50] per McCallum JA, as her Honour then was, Garling and Cavanagh JJ).
The applicant argues that it was critical that the Crown establish that the applicant was present at the scene of the offence because the Crown relied on the alleged acts of Mr Mouhtaris, the applicant and possibly another person or persons while at the scene as proof of any actual attempt having been made to commit the offence alleged by count 1. It is said that, if the Crown could not prove that the applicant was present at the scene and participating in those acts, there was insufficient evidence to prove he was complicit in the particular offence alleged.
As to the alleged presence of the applicant's vehicle at the scene, the applicant says that this found little support in the evidence of Mr Yarnton (see above) but in any event that proof that the applicant's vehicle was present at the scene still left open the question as to who was occupying his vehicle at that time.
Sixth, that the applicant was involved soon after in setting fire to his vehicle near to where he lived.
As to the sixth proposition, the applicant argues that there was no evidence that the applicant set fire to his vehicle or was present when that occurred; and that the evidence permitted of more than one reasonable possibility: that the vehicle was set alight by the applicant and Mr Mouhtaris together (as the Crown alleged) and in furtherance of their agreement; that it was set alight by one or either of the two accused alone or in the company of other people; or that it was set alight by the applicant after the fact, the applicant having been made aware either by Mr Mouhtaris or Ms Hayes that the vehicle had been used in the attempted commission of an offence. The location of the vehicle being close to where the applicant lived with Ms Hayes is said to be of little moment because Mr Mouhtaris lived at the same address.
Seventh, that later that day the applicant lied to the police in stating that his vehicle had been stolen the night before from outside his mother's house in Georges Hall and the reason he lied was because of a consciousness of guilt.
As to the seventh proposition, the applicant says that, even accepting that it was open to the Crown to rely on the applicant's assertion that his vehicle was stolen from outside his mother's home in Georges Hall the night as a lie, it remained necessary to assess whether that lie proved a consciousness of guilt of the offence alleged. It is said that the applicant may have lied because of a consciousness of guilt of a different offence (for example, subsequent awareness, either immediately after the attempted offence or sometime the following day, of his potential involvement as an accessory either before or after the fact); or because, by the time he made his statement the following day, the applicant had been told by his wife and/or Mr Mouhtaris enough about the events of the previous evening, and their possible participation in them, to want to protect one or either or both of them from the potential consequences.
It is thus submitted that the combination of circumstances relied on by the Crown could not exclude a reasonable hypothesis consistent with innocence; that it is entirely reasonable to hypothesise that Mr Mouhtaris (and possibly another person or persons) carried out the relevant acts attributed to the applicant, in furtherance of the joint criminal enterprise alleged without the applicant; that it is reasonable to hypothesise that the applicant was not the user of the Monique Hayes (3) telephone number on the night of the attempted offence; and that the applicant was not present at the Coles Express Service Station at Bass Hill nor at the scene, and was not present when his car was set alight (assuming that it was used in connection with one or more of the above events). Further, it is said that, if the applicant lied the following day in making a statement to the police about the theft of his car, it is possible that he did so for a reason or reasons not indicative of a consciousness of guilt.
The applicant says that, because a reasonable hypothesis consistent with innocence cannot be excluded, it follows that there was not sufficient evidence on which the jury could properly convict the applicant; and that the jury ought to have had a doubt as to the applicant's guilt on the basis that there were inferences consistent with his innocence arising from the admissible evidence. Hence, the applicant maintains that it was not open for the jury to be satisfied beyond reasonable doubt that he was guilty of count 1 on the basis of joint criminal enterprise.
Finally, in relation to ground 2, the applicant raises the possibility that there was an intention falling short of an intention to kill or cause grievous bodily harm.
The applicant points out that the Crown case was that there was an agreement between the co-accused to cause an explosion or fire with the intention of killing Mr Yarnton; and that the scene of the offence demonstrated that an attempt had been made to commit that offence (i.e., that the acts of the accused at the scene were immediately connected with the commission of the agreed crime and could not have had any other reasonable purpose). It is said that the Crown case was that Mr Yarnton, when he woke up inside his vehicle, must have disturbed the attempt to cause an explosion or fire. However, the applicant says that there was only scant evidence that this was in fact the case (and was based almost solely on Mr Yarnton's evidence that, when he got out of his car, he saw the rear taillights of a vehicle driving away from his location and the fact that a pink cigarette lighter was found on the ground near his vehicle).
The applicant argues (leaving aside Ms Yarnton) that there was no obvious motive for three persons who did not know (or did not know well) Mr Yarnton to agree to cause an explosion or fire with the intention of killing him. It is said that the nature of any agreement between the accused depended significantly on the physical evidence at the scene. The applicant accepts that the physical evidence at the scene was consistent with the agreement being as alleged by the Crown but says that it was also consistent with an agreement short of intending to kill or cause grievous bodily harm to Mr Yarnton (for example, to scare him). It is said that this is particularly so, if the physical acts intended to be carried out at the scene were complete by the time Mr Yarnton woke up inside his car. It is submitted that such a scenario was open on the evidence. Thus, it is submitted that if an intention falling short of an intention to kill or to cause grievous bodily harm was a reasonable possibility, the applicant was also entitled to an acquittal.
Thus, the applicant says that his conviction should be quashed.

Crown submissions

As adverted to above, the Crown criticises the approach of the applicant as seeking to attack each strand in the Crown case individually and in a vacuum. The Crown's position is that, while there are valid points made by the applicant about each strand, when the strands are taken together they leave no doubt about the applicant's involvement in the plan to kill Mr Yarnton. The Crown emphasises that a central and significant part of the Crown case at trial were the communications, calls and texts made by mobile telephone, and messages and calls over Facebook (see Ex DDDD). Although the Crown accepts that the case against the applicant was not as strong as the case against Ms Yarnton, the Crown maintains that it was not significantly weaker and the Crown emphasises that the strength of the case against the applicant must be seen in the context of a number of strands of evidence considered as a whole (and not analysed piecemeal).
First, the Crown contends that, on the evidence which was admissible against the applicant, it was open to conclude that each of the applicant's co-accused was part of a joint criminal enterprise to murder Mr Yarnton through the use of fire and/or an explosion.
In this regard, it is noted that the evidence admissible against the applicant included the text messages from Ms Yarnton (in which it is said that Ms Yarnton had expressed what must have been her state of mind regarding Mr Yarnton and the colleague with whom Mr Yarnton was having a relationship) that read: "Karma for this prick and her" and "They can burn in hell the dogs"; the Crown pointing also to the text sent on 30 January 2015 at 10.56pm by Ms Yarnton to Ms Hayes "Fuck I hope you find someone who has the right tools to fix our friend's car xxx".
The Crown says that it was open to the jury to conclude that the two bottles of gas obtained by Mr Mouhtaris on 31 January 2015 from Coles Express Bass Hill at 10.43pm were the same bottles found at the crime scene at Picnic Point.
The Crown points to the Facebook messages sent by Ms Hayes to Ms Yarnton around 11.30pm on 31 January 2015 (see above) as displaying a degree of anxiety concerning the execution of the plan; and argues that, in that context, it would not be surprising that Ms Hayes would, if suffering anxiety, call her husband (the applicant), there pointing to the telephone call from Ms Hayes to the Monique Hayes (3) telephone number at 11.38pm (lasting 1 minute and 17 seconds). The Crown says that this telephone call allows for the inferences that the applicant would know why she was suffering anxiety; and (relevantly, as I explain in due course) that the applicant was not with Ms Hayes.
As to the message from Ms Yarnton to Ms Hayes at 11.59pm ("Now he is abusing me he is in the front"), the Crown says that this not only refers to what Ms Yarnton had been relying on to motivate Ms Hayes (i.e., the allegations about the abusive nature of their relationship) but also (and the Crown emphasises this) tells Ms Hayes where Mr Yarnton was in the vehicle.
It is noted that it is after this, at 12.15pm on 1 February 2015, that Ms Yarnton telephoned the Monique Hayes (2) telephone number (this being the first use of this particular telephone number recorded on Ex DDDD). That call lasted only six seconds and was followed by continued calls to the Monique Hayes (2) telephone number before Ms Hayes' message to Ms Yarnton at 12.48am (see above - "hey my internet went off I had a nanna nap and my cat sat on my face … Lol I'll see you tomorrow if his being aggressive"). It is noted that, in the interim, there was the Facebook message sent by Ms Yarnton at 12.16.22am on 1 February 2015 to the applicant which read "Hey" (and which, on the Crown case, included a map reference - see further the Crown's submissions on this below).
The Crown also refers in this context to the series of communications or attempted communications from 12.43am through to 1.03am (see the chronology of events above), including the message from Ms Yarnton to Ms Hayes asking, "Hey where r they" at 12.51am and the message "noone is here" at 12.53am; and the 1.03am message from Ms Yarnton to Ms Hayes which read, "Tell him now", together with the timing of Ms Hayes' response to Ms Yarnton ("Okay") and the 41 second telephone call from Ms Hayes to Mr Mouhtaris (that was recorded as 1.03am but which the Crown points out could have commenced within that minute, i.e. after the last two messages, given that all of the call charge records for that service recorded the hour and minute of any call but not the time in seconds).
Reference is also made to the next series of communications including the 1.10am message from Ms Hayes to Ms Yarnton ( "Go now"), the further messages from Ms Hayes to Ms Yarnton ("Open all windows and tank") and the further message ("Delete" and then "Everything"), together with the 1.15am message from Ms Yarnton to Ms Hayes ("Done") after which Ms Yarnton sent a jumping (for joy) emoji.
The Crown says that it is in the period after 1.11am that the applicant and Mr Mouhtaris arrived and participated in applying the petrol and placing the gas bottles, noting that Mr Yarnton attempted his first call to Ms Yarnton at 1.17am, by which time the Crown says that the applicant and Mr Mouhtaris had left and Ms Yarnton was still away from the vehicle in the bush.
The Crown thus argues that the communications and CCTV footage from Coles Express at Bass Hill leave no doubt that Mrs Yarnton, Ms Hayes and Mr Mouhtaris were part of the joint criminal enterprise.
As to the applicant's involvement, the Crown argues that the telephone records and the timing of communications have even more force when taken with the other evidence, the Crown noting: the applicant's admission that he and Mr Mouhtaris were together on the relevant night; that a similar car to the applicant's silver sedan was seen at Coles Express where Mr Mouhtaris obtained the gas bottles; that the applicant's DNA was found on the black glove at the scene (along with that of Mr Mouhtaris); and that there was no contact between either of the two Anthony Mouhtaris telephone numbers and Monique Hayes (3) during the course of the evening until after the offence.
The Crown argues that the fact of the communications, particularly those between Ms Hayes, Ms Yarnton, and Mr Mouhtaris allows the inference to be drawn that the user of Monique Hayes (3) was involved in the plan to kill Mr Yarnton. In this regard, the Crown says that the mere fact of there being attempted calls and contact is enough to help support the inference that the applicant was involved; and that it is not necessary to know the actual content of the communications.
As to the contention that the applicant was using the Monique Hayes (3) telephone service on 1 February 2015, the Crown notes that the evidence was that Ms Hayes had three mobile telephone services registered in her name; that Ms Hayes' regular mobile telephone was Monique Hayes (1); and that the Monique Hayes (2) number commenced being used on 1 February 2015 at 12.15am. The third telephone service registered in Ms Hayes' name was Monique Hayes (3). The Crown argues that it must have been used by Ms Hayes or by someone close to or in contact with her (and, as noted above, the applicant does not dispute this inference). The Crown says that someone other than Ms Hayes must have been using Monique Hayes (3) because of the significant contact between it and Monique Hayes (1); and the Crown argues that the significant contact between the Monique Hayes (1) and Monique Hayes (3) telephone numbers is consistent with the users of those services being in a relationship.
It is noted that calls were made in January 2015 from the Monique Hayes (3) telephone number to the applicant's sister and to a relative or associate of the applicant. Insofar as the applicant suggests that Ms Hayes may have used the Monique Hayes (3) to call the applicant's sister and/or the applicant's associate, the Crown says this is mere supposition. Insofar as the applicant suggests that the calls placed to the applicant's sister and associate at its highest means that the applicant only used Monique Hayes (3) on those occasions (which were not 31 January 2015 and 1 February 2015), the Crown says that this does not take into account how people use mobile telephones and the fact that Ms Hayes had three registered in her name. It is submitted that it is unlikely that Ms Hayes kept the three phones to herself and lent Monique Hayes (3) to her husband only for him to lend it to another person who was involved in the joint criminal enterprise.
The Crown places weight on the fact that the last contact between Monique Hayes (3) and the two Mouhtaris telephone numbers on 31 January 2015 was at 8.24pm, and that they were then in contact again on 1 February 2015 at 2.10am. In that regard, it is noted that the contact began again shortly after (about 20 minutes) the applicant's Subaru was reported being set alight at about 1.50am.
Therefore, the Crown contends that the communications between the Monique Hayes (3) and Mouhtaris telephone numbers were consistent with the applicant and Mr Mouhtaris being together and, therefore, present at the crime scene at Picnic Point.
Further, it is noted that, after Mr Yarnton awoke, Ms Hayes was trying to get in touch with both Mr Mouhtaris and Monique Hayes (3) (from 1.31am) by alternating between calling their numbers; accordingly, the Crown argues suggests that getting in touch with one was the same as getting in touch with the other.
The Crown says that whether or not another number, provided to police by the applicant at the time he reported the theft of his car, was investigated does not detract from the evidence pointing towards the applicant being the user of the Monique Hayes (3) telephone number at the relevant time.
As to the applicant's submission that, even if he was the user of the Monique Hayes (3) telephone number at all relevant times, in the absence of knowing the substance of his communications the mere fact of contact is insufficient, the Crown says that the fact of communication was one part of the Crown's circumstantial case. Further, the Crown says that the fact that the applicant, using the Monique Hayes (3) telephone number, was communicating at certain times and not at other times (as noted above in regard to the communication history between the Monique Hayes (3) and Mouhtaris telephone numbers), allows the conclusion to be drawn that the applicant was with Mr Mouhtaris (and ultimately the conclusion that he was part of the joint criminal enterprise).
The Crown also points to the applicant's admission, in his 1 February 2015 statement to the police, that he had driven with "Anthony" (whose surname he was unsure about) from his mother's house back to Caringbah. The Crown says that, in the context of communications from the Monique Hayes (1) telephone number to the Monique Hayes (3) telephone number, and from the Mouhtaris telephone number to the Monique Hayes (3) telephone number, it is open to conclude that the applicant was not, or did not remain at, his unit but was with Mr Mouhtaris.
As to the placement of the applicant's car at the Coles Express at Bass Hill, the Crown notes that Mr Mouhtaris was at the Coles Express in Bass Hill and took the two gas bottles at about 10.45pm (and that gas bottles consistent with having come from Coles Express were found at the crime scene at Picnic Point); and that the CCTV footage shows a silver sedan with a consistent shape, taillights and indicator to the applicant's Subaru at times aligning with the entry into and exit of Mr Mouhtaris from the service station. It is noted that the car turned into Strickland Street less than 60 seconds before Mr Mouhtaris entered the store; and that within 60 seconds of Mr Mouhtaris leaving the Coles Express, a car with the same taillights as the Subaru is seen leaving Strickland Street. The Crown says that there was more than adequate space for this vehicle to park at the premises of the Coles Express. It is submitted that, by parking away from the premises and away from any surveillance cameras, the connection between this vehicle and the purchase of the gas bottles by Mr Mouhtaris is revealed. Further, it is noted that the Coles Express was close to the applicant's mother's house where he said he was that night in his statement to police.
The Crown points out that ignitable liquid was found to be present in the boot of the Subaru, suggesting that it could have been used to transport the petrol used in the offence.
The Crown says that the applicant was with Mr Mouhtaris at the Coles Express in Bass Hill. As noted above, the Crown points to the fact that there was no telephone contact between 8.24pm and 2.10am between the applicant and Mr Mouhtaris but that there was phone contact on either side of those times; and that Ms Hayes was trying to get in touch with both Mr Mouhtaris and the applicant from 1.31am, after Mr Yarnton had awoken and after Mr Mouhtaris had twice texted Ms Hayes at 1.25am (which the Crown says was presumably advising that the plan had not been carried out).
Further, it is noted that, just before the silver car left Strickland Street at 10.46am, a call was made from the Monique Hayes (3) telephone number to the Monique Hayes (1) telephone number at 10.45pm, which the Crown says is consistent with confirmation that the gas bottles had been obtained.
As to the submission by the applicant that there are three possibilities in relation to the Coles Express evidence (i.e., that the applicant and Mr Mouhtaris attended together; that Mr Mouhtaris attended alone; or that Mr Mouhtaris attended with others), the Crown says that these possibilities are only equal in a vacuum of other evidence. The Crown contends that the first possibility (the applicant and Mr Mouhtaris together) is most likely because of: the presence of a car similar to the applicant's vehicle; the applicant's admission he was with "Anthony" earlier that night; the telephone records suggesting that they were together; the DNA found on the glove at the scene; and the fact that the applicant's car was destroyed shortly after the events at Picnic Point (and, on the Crown case, the applicant lied about its theft).
As to the "Hey" message sent by Ms Yarnton via Facebook to the applicant at 12.16am on 1 February 2015 (about an hour before Mr Yarnton woke up and called Ms Yarnton to find out what was happening), the Crown points to Mr Yarnton's evidence that the message was accompanied by a grid and a little red flag (suggesting that Ms Yarnton had sent the applicant a location of where to meet that night). The Crown says that, while Ex RRR does not include such a map, the Cellebrite download from the Huawei mobile telephone which Mr Yarnton had located (Ex TTT) included not only the text message "Hey" but location coordinates. Hence, the Crown maintains that it was open to the jury to accept Mr Yarnton's evidence as to the existence of a map attachment.
As to the applicant's submission that there was no evidence that the applicant had ever met or spoken to Ms Yarnton, and no evidence that the message was received or read by the applicant, the Crown points out that the Facebook message goes to show that they were in contact and argues that the fact that it was sent (and the time that it was sent) evidence that there was a link between the two.
As to the DNA evidence, the Crown points out that neither of the applicant and Mr Mouhtaris could be excluded as the major contributor to the mixed DNA profile taken from the inside of the black glove. The Crown says that the most important of the three likelihood ratios was the third, namely that it was greater than 100 billion times more likely to obtain the mixed profile with Mr Houda and Mr Mouhtaris and an unknown unrelated male than if the sample originated from three unknown unrelated individuals. The Crown says that the first two (posing the probability of each of the applicant and Mr Mouhtaris being a contributor as against two unknown contributors) is consistent with the third result. The Crown further says that no one in the trial treated the results in the manner for which the applicant now contends.
The Crown also says that there was other evidence linking the applicant to the scene, namely: the evidence supporting the inference that he was with Mr Mouhtaris whose DNA was also found at the scene; that the gas bottles at the scene were identical to those collected from Coles Express by Mr Mouhtaris when a similar car to the applicant's was seen; the fact that ignitable fluid was found in the boot of the applicant's car; and the damage to the applicant's car.
The Crown argues that the fact that there were three likelihood ratios is not problematic and says that it is misleading to characterise them as three different possibilities; rather, that they are not mutually exclusive and that, together, they provide extremely strong support for the inference that both the applicant's and Mr Mouhtaris' DNA were in the glove.
The Crown accepts that there are limitations with the DNA evidence about how the DNA came to be in the glove and the possibility of transference (and acknowledges that the possibilities adverted to by the applicant at [230] of the applicant's submissions are valid ones). However, the Crown's position is that this was merely a strand among many in the Crown case. In particular, the Crown says that it is not difficult to imagine the applicant and Mr Mouhtaris taking turns to use the glove (although accepting that it suggests the offence was not very well planned or executed). (Pausing here, that scenario seems to me implausible particularly given the short period of time it is said that the applicant and Mr Mouhtaris were at the scene.)
The Crown further says that Mr Yarnton's evidence as to the car he saw at the scene (while the Crown accepts this provides little support for the proposition that the applicant's vehicle was at the scene) did not negate the possibility that it was the applicant's car. The Crown says that it was other evidence (as referred to above) which supports this proposition, noting that Mr Yarnton's evidence supported the conclusion that there had in fact been another car at the scene.
The Crown also relies on the communications in Ex DDDD as supporting the conclusion that the applicant was at the crime scene with Mr Mouhtaris (and not with Ms Hayes). (In that regard, the applicant says that the lack of communications from the Anthony Mouhtaris phone(s) to the Monique Hayes (3) telephone from 8.24pm is consistent with the applicant's evidence that he parked his car outside his mother's house at Georges Hall between 8.00pm to 8.30pm and was picked up from there and taken home. That, however, does not address the fact that the communications between their phones resumed at around 2.00am, shortly after the applicant's vehicle was set alight; nor the fact that there were numerous communications between the Monique Hayes (2) and Monique Hayes (3) telephones in that interim period (which cannot be consistent with the applicant being at his home at the time).
The Crown further says that the petrol and gas bottles, together with a lighter, indicate that a fire or explosion was intended. It is noted that Mr Yarnton was asleep in the car. The Crown says that it is most likely that his death did not occur because he awoke or something else frightened away the applicant and Mr Mouhtaris. The Crown maintains that, where almost everything except for the final spark of the light was done to achieve Mr Yarnton's death, it was open to conclude that his death was intended.
As to the setting on fire of the applicant's car, the Crown says that the location of the applicant's Subaru was itself a piece of evidence that contradicted any claim that the applicant or his car had not been involved in the commission of the offence. From that, and all of the other evidence of the applicant's involvement in the offence, the Crown says that the conclusion was open that the applicant was involved in setting fire to the car to try to destroy evidence.
It is noted that there was little time for the applicant and Mr Mouhtaris, having left Picnic Point, to drive back to Miranda and burn the Subaru and thus little time to consider the possibilities for doing so, other than having been in some way frightened off from completing the intended plan and believing there was a need to cover up the use of the applicant's car in the commission of the offence.
The Crown argues that it would be fanciful to suggest that the applicant's Subaru was stolen and set alight only a short distance from the applicant's home after the commission of the offence at Picnic Point in the context of all the other evidence in the case; and therefore that it was well open to the jury to conclude that it was driven back to where it was set alight by the applicant and Mr Mouhtaris who then left it to return to the unit block where they both lived in Caringbah (which was remarkably close to where they had left the Subaru).
The Crown says that it was therefore open to conclude that the Subaru was set alight to destroy evidence of the applicant's participation in the crime (whether or not this was an intelligent or successful endeavour). The Crown says that the fact that there was no CCTV footage confirming who set the car alight or whether anyone left the car for the residence of the applicant does not detract from the timing and location of the events.
For the same reason, the Crown says that the applicant lied to police when he made a statement saying that his car was stolen from his mother's house in Georges Hall that night. The Crown says that if it was open to conclude that the applicant and Mr Mouhtaris burnt the Subaru, then it follows that the applicant lied about it; and that if they burnt the car because of their involvement then it follows that the lie the applicant told must have been for the same purpose.
It is noted that, at trial, it was put on the applicant's behalf that there was nothing available to show that the applicant had lied; and that other explanations for the applicant's lie to police (for example: consciousness of guilt for some other offence like being accessory; the protection of Mr Mouhtaris and Ms Hayes) now relied upon by the applicant (see applicant's submissions at [234]), were not relied upon at trial.
In particular, the Crown says that the possibility of the applicant covering up the guilt of Ms Hayes or of Mr Mouhtaris was not before the jury, which was entirely consistent with the manner in which the applicant's case was put; and that this is not a matter that should now be able to be relied upon, now that the applicant's guilt is considered in the absence of his alleged co-offenders.
Overall, the Crown says that, while the applicant may be able to show why there is a reasonable possibility that each circumstance relied on by the Crown is not made out, that is not to the point and falls foul of the caution against piecemeal reasoning in circumstantial cases. It is submitted that there is no need for the Crown to have proven each (or any) circumstance beyond a reasonable doubt; rather, the combined force of all of the circumstances relied on by the Crown proves the applicant participated in the joint criminal enterprise.
As to the contention that there was a reasonable possibility that the plan was not to kill or cause grievous bodily harm to Mr Yarnton (see the applicant's submissions at [237]-[239]), the Crown says that the physical state of the scene was consistent with an attempt to cause an explosion or fire in order to kill Mr Yarnton. In particular, it is said that the cigarette lighter would not have been needed if the plan was simply to frighten Mr Yarnton; and that the open gas bottle near Mr Yarnton's head speaks loudly of the intended outcome.
Thus, the Crown submits that when the evidence is considered cumulatively the applicant's conviction was not unreasonable.

Consideration

The applicable legal principles have already been summarised above. I am not persuaded that, on the whole of the evidence, the jury must have entertained a reasonable doubt as to the applicant's guilt. I accept that, as a circumstantial case, if there was a rational inference or hypothesis consistent with innocence that was open on the evidence, then the applicant was entitled to the benefit of the doubt necessarily created by that circumstance (to adopt the language of the authorities referred to above) but I do not see (taking into account the overall evidence) that there was a rational inference (consistent with the appellant's innocence) that the jury acting reasonably could not have rejected.
There was much emphasis placed in the applicant's oral submissions on the DNA evidence and the perceived inconsistency between Mr Yarnton's evidence as to the vehicle he observed at the scene and the CCTV footage of the vehicle passing by the Coles Express and turning into Strickland Street (particularly, as to the absence of a third tail light). As to the former, it became apparent on the Court's viewing of the CCTV footage that the third taillight was not visible when the vehicle was moving (which supplied a ready answer to that perceived inconsistency). Nevertheless, the applicant maintains that the evidence as to the Coles Express is so weak and tenuous as to amount to a glaring deficit in the Crown case that the applicant was present at the scene.
As to the debate as to the weight to be placed on the DNA evidence in relation to the glove and the possibility of transference, as noted above the applicant submits that the DNA evidence is particularly pertinent, noting that the glove is a moveable item, that the DNA was discovered on the inside of the glove and that the evidence was that it was not possible to put a date range on when the DNA was put there (see the evidence of Officer Barry in his cross-examination; and the expert evidence of Ms Sasadek).
The applicant's argument is that the third scenario posted by the expert involved the highly improbable scenario that both the applicant and Mr Mouhtaris wore the glove at the scene. The applicant argues that, combined with the fact (undisputed as between the Crown and Mr Mouhtaris) that Mr Mouhtaris obtained the gas bottles and took them (on the Crown case) to the scene, the inference is that it is highly probable that it was Mr Mouhtaris' DNA in the glove (see T 3).
Having regard to the statistical likelihood ratios themselves, it is noted that the comparison is not as to whether it is more likely that the DNA was from the applicant than Mr Mouhtaris; it is a comparison with unknown related individuals; and thus equivocal.
Thus it is submitted by the applicant that the likelihood ratios (on the expert's evidence) are all equally possible; and that there is a reasonable possibility (one said to be highly probable by reference to the fact that Mr Mouhtaris obtained the gas bottles) that it was Mr Mouhtaris' DNA; since transference could not be excluded, reasonable possibility that it was not the applicant's DNA in the glove could not be excluded. The significance of this for the applicant is that it is argued that the DNA evidence was critical to the Crown case in order to place the applicant at the scene.
I accept that the DNA evidence is of little value. Looked at in isolation (both the evidence to likelihood ratios and the evidence as to transference) it does not exclude the reasonable possibility that it was only Mr Mouhtaris' glove (and that the DNA evidence taken alone would give rise to a reasonable doubt as to the applicant's presence at the scene).
However, the timing of the telephone and Facebook communications (coupled with the text of various of the text messages), taken in conjunction with the evidence as to Mr Mouhtaris' purchase (and theft) of gas bottles from the service station and the evidence of a vehicle appearing to be that of the applicant at the Coles Express when the gas bottles were obtained, to my mind dispels any reasonable doubt that the applicant was indeed part of a joint criminal enterprise to murder or cause grievous bodily harm to Mr Yarnton. The suggestion that there was a reasonable possibility that all that was intended was to frighten Mr Yarnton cannot be accepted, given the presence of the open gas bottles, petrol around the vehicle, and a lighter in the vicinity. While the applicant criticises the Crown case theory as an elaborate plot, the suggestion that the steps taken were no more than a plan to frighten Mr Yarnton seems to me to be an even more elaborate (and frankly implausible) scenario.
There is no rational inference to support a conclusion that Ms Hayes was using both the Monique Hayes (1) and (2) telephone devices to send messages to herself or make calls to herself on the Monique Hayes (3) telephone device; and the only rational inference is that the applicant was the user of the third device (for the reasons that the Crown contends and that have been explored above). Nor is it a rational inference to suggest that the applicant was not with Mr Mouhtaris at the scene (but, was at home with Ms Hayes in, say, another room in his unit). The sequence (and timing) of communications from Ms Yarnton's telephone device, first, to Ms Hayes (and then from Ms Hayes to the applicant), particularly coupled with the "Hey where r they" and "no One is here" messages is particularly telling (as is the Facebook message to the applicant - which otherwise, on the applicant's argument would be coming seemingly out of the blue and with no explanation).
The fact that the applicant's car was set alight shortly after the police had been called to the Picnic Point scene (and so close to where the applicant and Mr Mouhtaris both lived), coupled with the absence of telephone communications between Mr Mouhtaris' telephone numbers and the Monique Hayes (3) telephone number, supports the conclusion that was an attempt to destroy evidence of the failed attempt at Picnic Point.
In those circumstances (and disregarding the DNA evidence which I accept is of little value), I am satisfied that the verdict of guilty was not unreasonable.

Proposed orders

I would dismiss ground 2. In circumstances where I agree with Adamson J as to ground 1, I would therefore propose the following orders: 1. Extend time for the filing of the notices of appeal and grant the applicant leave to appeal. 2. Dismiss the applicant's appeal against conviction.
ADAMSON J: Fady Houda (the applicant) seeks leave to appeal against his conviction on two grounds, the first of which is that a miscarriage of justice was occasioned as a result of his being tried jointly with Sharon Yarnton, one of the co-accused.

The applicable principles

Section 29 of the Criminal Procedure Act 1986 (NSW) relevantly provides: "29 When more than one offence may be heard at the same time … (2) A court may hear and determine together proceedings related to offences alleged to have been committed by 2 or more accused persons in any of the following circumstances - (a) the accused persons and the prosecutor consent, (b) the offences arise out of the same set of circumstances, (c) the offences form or are part of a series of offences of the same or a similar character. (3) Proceedings related to 2 or more offences or 2 or more accused persons may not be heard together if the court is of the opinion that the matters ought to be heard and determined separately in the interests of justice."
The general rule is that persons charged with committing an offence jointly should be tried jointly: Webb v R (1994) 181 CLR 41; [1994] HCA 30 (Webb) at 89 (Toohey J, Mason CJ and McHugh J agreeing). His Honour qualified the general rule, at 89, as follows: "There are of course dangers for an accused in a joint trial by reason of the admission of evidence which would not be admitted at the trial of one accused. That risk must be obviated by express and careful directions to the jury as to the use they may make of the evidence so far as it concerns each accused. In the end the critical question before an appellate court in these circumstances is whether, by reason of the joint trial, there has been a substantial miscarriage of justice or, put another way, whether improper prejudice has been created against an accused. In the present case adequate directions were given by the trial judge. It is true that Webb did not give evidence and was therefore not subject to cross-examination, though the jury heard his statements to the police implicating Hay. But, as King CJ observed: 'That is a common feature of a joint trial and does not of itself render separate trials necessary.'" [Citations omitted.]
The rule applies against a background that it is accepted that a joint trial has the potential to cause prejudice to an individual accused. Typical circumstances where a risk of prejudice arises include where one accused, in a recorded interview (which is only admissible against that accused), seeks to blame another accused (against whom the recorded interview is inadmissible). In such cases, the risk of prejudice is generally thought to be capable of being removed or ameliorated by a direction as to the use to which the evidence can be put: Webb at 89.
However, irrespective of whether the discretion to refuse an application for separate trials has been properly exercised, this Court has jurisdiction to set aside a conviction if there has been "injustice to the accused in the manner the trial unfolded": Caleo v R (2021) 290 A Crim R 352; [2021] NSWCCA 179 (Caleo) at [136] (Bathurst CJ, Beech-Jones and N Adams JJ agreeing) at [136]. In performing this assessment, the directions given by the trial judge must be taken into account: Caleo at [136].
In Caleo at [137], Bathurst CJ endorsed the summary of principles set out by Hunt J in R v Middis (Supreme Court (NSW), Hunt J, 27 March 1991, unreported) (Middis) as follows: "Briefly, the relevant principles are that: (1) where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him, and (2) where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him, and (3) where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material, a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that positive injustice would be caused to him in a joint trial. … I do not believe that the Court of Criminal Appeal in Regina v Oliver [(1984) 57 ALR 543] intended an applicant for a separate trial to demonstrate that positive injustice would more likely than not be caused by a joint trial (as it was suggested in argument); nor do I accept that a mere possibility of prejudice is sufficient (as it was also suggested in argument). In my view, what the Court of Criminal Appeal was saying was that, as some prejudice to one or other accused is inevitable in any joint trial, it must be shown by an applicant for a separate trial that the particular prejudice upon which reliance is placed by him would - if it arises [-] result in positive injustice to him in a joint trial." (Emphasis added.)"
Ms Bashir SC, who appeared with Mr Howell on behalf of the applicant, confirmed that no challenge was made to the refusal of Lakatos SC DCJ and Culver DCJ in respect of interlocutory applications, to order separate trials. However, she contended that the effect of the refusal in all of the circumstances of the trial was to cause a miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW). She submitted that the Crown case against the applicant was significantly weaker than the Crown case against Ms Yarnton but that there was a substantial risk that the Crown case against the applicant would be, illegitimately, made stronger both by the recorded interviews of Ms Yarnton, in which she sought to implicate the applicant, and the recorded interview of Ms Hayes (another co-accused), which tended to support what Ms Yarnton had told police. She submitted that the directions given by the trial judge were insufficient to ameliorate this potential prejudice, which had deprived the applicant of a fair trial.
The gravamen of the applicant's submission in support of the first ground is that Ms Yarnton, in her recorded interview, sought to exculpate herself by implicating the applicant. By contrast, the applicant denied any role in the joint criminal enterprise and did not seek to cast blame on Ms Yarnton. Further, Ms Bashir contended that the evidence of Ms Hayes, which corroborated Ms Yarnton's evidence, created a risk of prejudice to the applicant.
In order to address the ground, it is necessary to summarise the evidence which Ms Bashir identified as being prejudicial to the applicant and inadmissible against him.

Ms Yarnton's first recorded interview on 1 February 2015

Police arrested Ms Yarnton at Picnic Point and brought her back to the police station where she confirmed in a recorded interview what she had told them at Picnic Point. Her recorded interview commenced at 7.07am on 1 February 2015. She told police that Dean Yarnton, her husband, was violent towards her. She said that she had been driving him back from Merrylands where they had had dinner with friends when she had wanted to go to the toilet. She said that she had pulled into Picnic Point to relieve herself and that Mr Yarnton had been asleep. She said that she did not know anything about the gas bottles or petrol in their car. She told police that she had heard "hoons" driving around as she was going to the toilet.
She told police that she had seen at the scene at the relevant time a silver car which was the same colour as the applicant's vehicle, a Subaru Impreza. The first interview concluded at 8.28am.

Ms Yarnton's second recorded interview on 1 February 2015

Ms Yarnton was interviewed again by the police commencing at 4.40pm on 1 February 2015. She told police that, in late January 2015, the applicant had offered to get someone to "knee-cap" her husband or to "knock him [out]" or to "smack him around". She said that this conversation occurred at the apartment where the applicant lived with his wife, Ms Hayes. She also told police that subsequently, on 31 January 2015, the applicant told her that he and others would be seeing her husband that night; that it had "already been arranged"; and that the applicant had "done things in the past", which he had got away with and that he was "good at torching cars".
Ms Yarnton also told police that, while she was driving home from Merrylands on Woodville Road on 31 January 2015, she had seen the applicant's vehicle flashing lights at her from behind and that the person in the front passenger seat looked like the applicant. Ms Yarnton said that she tried to wake up Mr Yarnton but he could not be roused.
According to Ms Yarnton, she was very scared about what the applicant would do to her husband. She told police that she rang Ms Hayes and asked him to stop her husband from harming Mr Yarnton, to which, according to Ms Yarnton, Ms Hayes said, "It's too late, they've gassed [the] car."
Shortly after Ms Yarnton's second police interview, the applicant was arrested by police.
As Ms Yarnton did not give evidence at the trial, the applicant had no opportunity to challenge these versions given in her recorded interviews.

Evidence of Ms Hayes

Because Ms Hayes was tried jointly with the applicant, the evidence which was solely admissible against her, such as her recorded interview, was admitted in the trial and heard by the same jury which was responsible for determining the applicant's guilt. Ms Bashir identified the following two aspects of Ms Hayes' evidence which she submitted corroborated the account which Ms Yarnton had given in her recorded interview: 1. the meeting which Ms Yarnton said she had with Ms Hayes in the week leading up to 31 January 2015; and 2. that Ms Yarnton had gone back to Ms Hayes' unit (in which she lived with the applicant) at Caringbah that day where Ms Yarnton had asked the applicant if he could "knock" Mr Yarnton or whether he knew anyone who could.

The Crown case against Ms Yarnton

The Crown case against Ms Yarnton was that she wanted to kill her husband and had enlisted the help of others (Ms Hayes, the applicant and Mr Mouhtaris) to incinerate him in their own car, a Nissan Navara, but to make it look as if she was not involved. The Crown submitted that her motive arose from the fact that he had been unfaithful to her with a colleague and that the two were soon to part, having agreed on the division of their matrimonial property, which included their house, the sale of which was shortly to settle.

The Crown case against the applicant

The Crown relied on the following to prove the applicant's involvement in the joint criminal enterprise to kill Mr Yarnton: 1. the applicant's vehicle was involved in the events of the night, including as the vehicle which was used to collect the gas bottles from Coles Express on the Hume Highway and deliver them to Picnic Point; 2. the applicant was one of the occupants, but not the only occupant, of his vehicle on the night; 3. Mr Mouhtaris also occupied the applicant's vehicle on the night and had gone to Coles Express in that vehicle to collect the gas bottles, one of which he purchased and one of which he stole; 4. the applicant's vehicle was present at the scene at Picnic Point where Mr Yarnton was inside the Nissan Navara; 5. the applicant was also at the scene; 6. the applicant and Mr Mouhtaris used gas bottles and petrol in and around the Nissan Navara with the intention of causing a fire or explosion to kill Mr Yarnton; and 7. shortly afterwards, the applicant and Mr Mouhtaris set fire to the applicant's vehicle in Miranda, within short walking distance of the apartment block in which each occupied a unit with his spouse or partner.

Ms Yarnton's defence case

In closing address, Ms Yarnton's trial counsel relied on what Ms Yarnton had told police in the second interview and described it as "the most plausible account given by her and really the only one that explains what went on." Her counsel suggested that others, including the applicant, might have taken things into their own hands, intending to help her but actually acting contrary to Ms Yarnton's wishes.
In the course of final address, Ms Yarnton's trial counsel said: … So the fact remains that Ms Yarnton at no time positively knew where the gas cylinders and fluid came from. She didn't look under the seats of the utility that was ordinarily driven by her husband not her. If, for example, items had been stored under there, there is no way that she would've seen them at night. She had no reason to check the ute. But there are consistencies between the first record of interview and the second record of interview including that important one that I've just highlighted. Surprised by the gas and the fuel. No idea that was going to happen. As I said, you might think that the account Ms Yarnton gives in the second record of interview is the most plausible account given by her and really the only one that explains what went on. Now I'm going to dub that account as the 'I, Tonya scenario, Theory or Defence', and that's a film about ice skating. Now I'm going to actually finish off with that scenario, so I'll take you to it later on, but it's about a plan going off the rails really. Someone taking the idea of a plan and going off pissed if you're a skier and doing something else. … So this is what I referred to earlier on in submissions as what I'll call the 'I, Tonya defence' and I'm just going to refer briefly to that film starring Margot Robbie - and this is not evidence. This is just an analogy to assist you with how I suggest you might think about the evidence. That was this movie about a real life incident between Tonya Harding and Nancy Kerrigan, and Tonya Harding had received some death threats and actually her ex-husband contact a friend to send phoney death threats back to Nancy Kerrigan to discourage her from competing. That friend then engaged two very seemingly unintelligent people in the task and they decided the great idea would be to travel a distance to where Nancy Kerrigan was training; take out a retractable baton and baton her on the knees. They did that and caused her injury, but she was actually able to compete in the competition at any rate later down the track. They were caught. They left a trail of credit cards, CCTV of them in the car and all that sort of things. Tonya Harding wasn't convicted of her actual involvement in any plan to harm her rival. So that film was a fictionalised version of a reasonably well-known real life event, but there are parallels and they're parallels like the ex-husband hired someone to write letters, but that someone engaged others who decided to do their own plan. They went off plan. They went off pissed, if you're a skier. They took matters into their own hands and apparently, the ex-husband tried to call it off to no avail. So what the ex-husband's friend's friends did was make a new plan with entirely new and far more serious potential outcome. It wasn't a plan that Tonya's ex-husband was ever a party to and Tonya Harding was apparently not a party to it, although that's equivocal in real life. So what I'm suggesting to you is that that is a[n] analog[ous] situation to what Ms Yarnton has described in the second record of interview save, in the case that you are considering, nobody got hurt. And you might think that the second record of interview, where Ms Yarnton you might think is much calmer than the first interview, offers a very plausible explanation of the prequel to what eventually happened. Now there's a tagline from that film, 'I Tonya', and it's this. Tonya, by the way, was seen as an outsider in the skating circles, and the tagline is 'Fitting in is overrated'. Now that's a tagline that might be useful to you in your consideration of these proceedings this way. Just because a scenario outlined 45 in the second record of interview might not fit in, doesn't fit in, with the Crown case theory, that does not mean you automatically reject that second record of interview. If for you it's a reasonable plausible possibility that cannot be rejected, then the Crown cannot and has not proved its case.
The Crown objected to the references to "I, Tonya" in the closing address of Ms Yarnton's trial counsel, as did the applicant's trial counsel and trial counsel for Mr Mouhtaris. There was a discussion about an appropriate direction to rectify any prejudice arising from these references. When the jury returned, her Honour directed the jury that they were to decide the case solely according to the evidence. Her Honour further directed them to put out of their minds any consideration of the movie, the case that was connected with the movie and the outcome of the movie or the associated case. Her Honour told them that these matters were completely irrelevant to their deliberations.

The potential prejudice to the applicant of being tried jointly with Ms Yarnton

Ms Bashir argued that although the Crown case was that Ms Yarnton was lying in her recorded interview, significant aspects of Ms Yarnton's recorded interview supported the Crown case against the applicant. She submitted that of the matters relied on by the Crown in its case against the applicant (listed above), (1), (2), (4), (5) and (6) were consistent with what Ms Yarnton had said to the police in the interview. Further, she submitted that the reliance placed by Ms Yarnton's trial counsel on the second recorded interview would have served to underline its significance to the jury.
She submitted that the submissions made by Ms Yarnton's trial counsel by reference to the "I, Tonya" movie illustrated the prejudice which being tried jointly with Ms Yarnton caused, or potentially caused, to the applicant.
Ms Bashir accepted that the trial judge had directed the jury that it was only permitted to use evidence admissible against a particular accused against that accused and that such evidence had been adequately identified.
She sought to distinguish Caleo from the present case by submitting that, in Caleo, the evidence which was inadmissible against the co-accused was limited to three short paragraphs whereas the evidence inadmissible against the applicant (referred to above) was substantial and figured largely in the trial both in the Crown case and in the defence case of Ms Yarnton.

The directions given or other steps taken by the trial judge to ameliorate the potential prejudice

Ms Bashir identified in her written submissions the various directions given and the steps taken by the trial judge. The Crown accepted that these had adequately been identified. They included the following directions in the summing up: 1. a direction that the jury could only use a version given by one accused in a recorded interview in the case against that accused and not in the case of any other accused; 2. a direction that the jury could only use evidence admissible against the particular accused with whom they were concerned and had to "exercise a very disciplined mind" and "rigorously make sure" to "quarantine" the evidence in that way; 3. a direction that although the trials were being heard together as a matter of administrative convenience, there were actually four separate trials, and that they could return different verdicts for each trial; 4. a direction that the jury must disregard the fact that some accused had given good character evidence when considering the case of other accused who had not adduced such evidence; and 5. a direction to disregard the references to "I, Tonya" and to decide the case of each accused solely on the basis of the evidence admissible against that accused.
None of these directions was the subject of complaint. Nor were any further directions sought and not given. The applicant is bound by the conduct of his counsel in that respect: R v Birks (1990) 19 NSWLR 677 at 684-685 (Gleeson CJ, McInerney J agreeing).

Consideration

I accept that the three conditions in Middis are met in this case. The Crown case against Ms Yarnton was significantly stronger than that against the applicant. She had, after all, a motive to kill her husband (financial and emotional). She had exhibited significant animus against him as a consequence of his infidelity which appears to have been the source of her grievance towards him and the breakdown of their marriage. In the context of this matrimonial drama, the applicant, as the partner of one of Ms Yarnton's friends, Ms Hayes, was peripheral. Further, the recorded interviews of Ms Yarnton were prejudicial to the applicant (because she sought to implicate him) and inadmissible against him. There was the potential for the jury to reason illegitimately towards his guilt from her recorded interviews.
The narrative which Ms Yarnton gave in her second police interview was repeated in her closing address by reference to the "I, Tonya" movie, with a view to persuading the jury that it was reasonably possible that Ms Yarnton had, unwittingly, given her friends the impression that she wanted her husband to be harmed or killed, when in fact this was not her intention.
It does not, however, follow from the presence of a risk that it ensued or that the conviction ought be set aside. The applicant must establish some positive injustice which could not be, or was not, ameliorated by the directions given by the trial judge. The efficacy of directions to ameliorate potential prejudice needs to be assessed by reference to the particular case: Allen v R [2020] NSWCCA 173 at [112] (Bell P, as his Honour then was, with whom Davies J agreed).
Although weaker than the Crown case against Ms Yarnton, the Crown case against the applicant was, as the consideration by Ward P of the unreasonable verdict ground demonstrates, nonetheless a relatively strong case. It was based on several strands of circumstantial evidence which implicated him in the joint criminal enterprise. Further, the Crown case was that Ms Yarnton was a liar and that her version in her recorded interviews (particularly the second) ought not be accepted. The jury returned a verdict of guilty for Ms Yarnton and therefore can be taken to have excluded her version in the second interview, in so far as it exculpated her, as a reasonably possible hypothesis. In these circumstances, the prospect that the jury illegitimately relied on Ms Yarnton's version (contrary to the directions given to them by the trial judge) to convict the applicant would appear to be remote. Indeed, I am satisfied that the jury followed the trial judge's directions and returned a guilty verdict against the applicant based on evidence which was admissible only against him.
Whatever transient impression the references to the "I, Tonya" movie may have made on members of the jury, the unequivocal direction given by the trial judge to disregard what had been said about it was given swiftly after the movie had been referred to in Ms Yarnton's closing address. In my view, her Honour's direction was sufficient to remove any prejudice which might otherwise have arisen from such references.
For the reasons given above, I am not persuaded that the applicant has been, by being tried with Ms Yarnton (and Ms Hayes), deprived of a real chance of acquittal.
In relation to ground 1, I propose the following orders: 1. Grant leave to appeal. 2. Dismiss the appeal.
As to ground 2, I have had the benefit of reading the reasons of Ward P in draft and gratefully adopt her Honour's extensive summary of the evidence and the submissions. Having reviewed all of the evidence in the trial, I am satisfied that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt of count 1. Accordingly, I agree with the orders her Honour proposes in relation to ground 2, substantially for the reasons given by her Honour.
DHANJI J: I have had the significant benefit of reading the reasons of Ward P and Adamson J in draft form. I agree with the orders proposed by their Honours. Having conducted my own assessment of the case against the applicant, the reasons of Ward P reflect the reasons for my agreement in relation to ground 2. The reasons of Adamson J in relation to ground 1 reflect the reasons for my agreement in relation to that ground.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 August 2022

Court Suppression and Non- Publication Orders Act 2010(NSW)

[This headnote is not to be read as part of the judgment] On 5 July 2019, following a trial by jury in the District Court, the applicant, Mr Fady Houda, was found guilty and convicted on a charge of attempt to cause an explosion or fire, or both, with intent to murder Mr Dean Yarnton on or about 1 February 2015 at Picnic Point, contrary to s 30 of the Crimes Act 1900 (NSW). The applicant was tried jointly with three co-accused, Ms Yarnton (Mr Yarnton's then wife), Ms Hayes (a friend of Ms Yarnton) and Mr Mouhtaris (Ms Hayes' partner), each of whom was also found guilty on a charge of attempt to cause an explosion or fire, or both, with intent to murder Mr Yarnton. The appeal raised two issues: 1. whether a miscarriage of justice was occasioned as a result of the appellant being tried jointly with the co-accused Ms Yarnton; and 2. whether the verdict of the jury was supported by the evidence and was unreasonable. The Court (Ward P, Adamson and Dhanji JJ) held: As to issue 1: (per Adamson J, Ward P and Dhanji J agreeing) The applicant must establish some positive injustice which could not be, or was not, ameliorated by the directions given by the trial judge: [254]. The Crown case against the co-accused Ms Yarnton was significantly stronger than that against the applicant. Further, the recorded interviews of the co-accused, Ms Yarnton, were prejudicial to the applicant (because she sought to implicate him) and inadmissible against him: [252]. Nevertheless, the Crown case against the applicant was a relatively strong case, and the Crown case was that the co-accused Ms Yarnton was a liar and her version of events in her recorded interviews ought not to be accepted. In light of these circumstances, the prospect that the jury illegitimately relied on the co-accused Ms Yarnton's version to convict the applicant was remote. Moreover, the trial judge's directions were sufficient to remove any prejudice which might otherwise have arisen: [255]-[256]. Webb v R (1994) 181 CLR 41; [1994] HCA 30; Caleo v R (2021) 290 A Crim R 352; [2021] NSWCCA 179; R v Middis (Supreme Court (NSW), Hunt J, 27 March 1991, unreported); Allen v R [2020] NSWCCA 173 referred to. As to issue 2: (per Ward P, Adamson and Dhanji JJ agreeing) None of the matters referred to by the applicant gave rise to a rational inference or hypothesis consistent with innocence that was open on the evidence: [212]. The timing of the communications between all of the co-accused, in conjunction with the evidence of a vehicle appearing to belong to the applicant at the service station where the gas bottles to commit the offence were obtained, dispels any reasonable doubt that the applicant was part of a joint criminal enterprise to murder or cause grievous bodily harm to Mr Yarnton: [219]. There is no rational inference to suggest that the applicant was not the user of a telephone device that the evidence established was used to communicate with the co-accused Ms Hayes, and there is no rational inference to suggest that the applicant was not with the co-accused Mr Mouhtaris at the scene to commit the offence: [220] In those circumstances, the verdict of guilty was not unreasonable: [222]. M v R (1994) 181 CLR 487; [1994] HCA 63; MFA v R (2002) 213 CLR 606; [2002] HCA 53; SKA v R (2011) 243 CLR 400; (2011) HCA 13; Libke v R (2007) 230 CLR 559; [2007] HCA 30; Pell v R (2020) 268 CLR 123; [2020] HCA 12; R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35; Knight v R (1992) 175 CLR 495; [1992] HCA 56; Barca v R (1975) 133 CLR 82; [1975] HCA 42; Hillier v R (2007) 228 CLR 618; [2007] HCA 13; Coughlan v R (2020) 267 CLR 654; [2020] HCA 15 referred to.

Legal principles

There was no dispute as to the applicable legal principles where there is an appeal against conviction on the ground that the verdict was unreasonable. The question is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (see M v R (1994) 181 CLR 487; [1994] HCA 63 (M v R) at 492-493 per Mason CJ, Deane, Dawson and Toohey JJ; MFA v R (2002) 213 CLR 606; [2002] HCA 53 (MFA v R) at [60]-[61] per McHugh, Gummow and Kirby JJ; SKA v R (2011) 243 CLR 400; [2011] HCA 13 (SKA v R) at [13]-[14], [22] per French CJ, Gummow J and Kiefel J, as her Honour then was). In Libke v R (2007) 230 CLR 559; [2007] HCA 30 at [113], Hayne J (with whom Gleeson CJ and Heydon J agreed) expressed the test as being whether it was "open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the applicant's guilt" (emphasis in original). More recently, in Pell v R (2020) 268 CLR 123; [2020] HCA 12 , the High Court said that these tests are essentially the same (see at [45] per Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
The appellate court must undertake its own independent assessment of the evidence (M v R; SKA v R), though having regard to "the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence" and that the jury had the benefit of seeing and hearing the witnesses give evidence (M v R at [7] per Mason CJ, Deane, Dawson and Toohey JJ; MFA v R at [49] per McHugh, Gummow and Kirby JJ). The High Court has emphasised the deference that must be accorded to the jury's verdict, not only because the jury were in a better position than the appellate court to assess the credibility of witnesses, but also because of the constitutional authority of the jury (R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 (Baden-Clay) at [65] per French CJ , Kiefel J, as her Honour then was, Bell, Keane and Gordon JJ).
On a circumstantial case, the process of reasoning on appeal was described in Knight v R (1992) 175 CLR 495; [1992] HCA 56 per Mason CJ, Dawson and Toohey JJ at 503, their Honours noting that if a reasonable jury ought to have found that an inference or hypothesis consistent with innocence was open on the evidence, then it ought to have given the appellant the benefit of the doubt necessarily created by that circumstance; and framing the enquiry for the appellate court in that case as being whether, in the circumstances of that case, the jury acting reasonably could have rejected as a rational inference the possibility (consistent with the appellant's innocence) that the appellant fired, without an intent to kill, the shot which hit the victim.

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