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Representation: Counsel:
B Costello (Crown)
D Stewart (Accused)
Solicitors:
Office of the Director of Public Prosecutions (NSW) (Crown)
Ross Hill & Associates Solicitors (Accused)

File Number(s): 2023/00157957

Publication restriction: Nil

JUDGMENT

1. HIS HONOUR: By indictment dated 29 September 2025, Conrad Peter Lardner is charged with the murder of David Vale on 1 March 2023 in South Kempsey. A plea of not guilty was entered in the Local Court and the matter was committed for trial in this Court commencing on 29 June 2026.

2. Some weeks before the trial was due to commence, within the time limited by s 132A of the Criminal Procedure Act 1986 (NSW) (“CPA”), the Accused, by his counsel, indicated his intention to seek a trial by judge alone. After the application was formally made, the Crown indicated their consent. Consequently, on 19 June 2026, I made an order under CPA s 132(2) that this matter proceed by way of trial by judge alone. On 29 June 2026, the Accused was re-arraigned and adhered to his plea of not guilty to the murder of Mr David Vale. The trial took place over the following four weeks at Port Macquarie.

3. This judgment proceeds in parts. I will start by setting out the facts agreed between the parties to provide the background for the issues in this case, before outlining the respective cases for the Crown and the Accused. Then I will give myself legal directions which will bind me in my determination. I will canvass the relevant evidence, which was before me, and then proceed to make a determination of the Accused’s guilt or innocence and return my verdict.

4. During the course of this judgment, I will refer to Mr Conrad Lardner and Mr David Vale as the Accused and Deceased respectively. In so doing, I follow the long-established convention of common law courts, and I mean no disrespect. In this case, especially given the overlap in surnames, they will also help with identification.

Part 1 - Background and Agreed Facts

5. What follows here is a summary of the uncontested and agreed facts of what occurred in the lead up to the death of the Deceased. A Statement of Agreed Facts was tendered and admitted into evidence as Exhibit 14. CCTV footage from 78 “M” Street, recorded partly in ‘night-time mode’, was admitted as Exhibit 10. The camera pointed east and showed the area around the driveway of 76 M Steet, and some parts of the area in front of 74 M Street. I note that the clock on the CCTV footage was around six minutes slow, although I do not think much turns on this, and, unless otherwise indicated in these reasons, that is the time to which I will refer. Despite its limitations, the footage provided important points of reference for the unfolding of the narrative of central events and the location of certain witnesses at significant times.

6. The Accused and the Deceased were both members of the same extended family of Indigenous heritage, who mostly reside in Kempsey and its surrounds. The relationship between the Accused and the Deceased, in a biological sense, was that of cousins, but both were raised in the same household by the father of the Deceased, Harry Vale. They were then, like brothers. In part due to their age gap, the Accused being the elder, and in part due to the extended kinship relationship, the Deceased referred to the Accused as ‘Uncle’.

7. As at 1 March 2023, the Accused resided at 95 M Street. Two younger female relatives called as witnesses (who were in such a position as to suggest they were eyewitnesses to aspects of the fatal events) Veronica Holten and Leearna Davis also lived there, together with Ms Holten’s mother, Priscilla, and Ms Holten’s two teenage sons.

8. The agreed facts about the events of 1 March 2023 are as follows. In the morning, the Deceased and another relative, Mr Pritchard Vale, attended the house of the Accused at 95 M Street. What occurred during that time is not agreed and indeed was sharply disputed.

9. At some point after dark that day, the Accused and Leearna Davis went to 74 M Street, remaining there for some time. Veronica Holten was the tenant of these premises, but she had been residing at 95 M Street for around the previous two weeks for reasons which were not agreed. At 10:27pm, the Deceased arrived outside 74 M Street driving his father’s gold-coloured Honda Accord and parked there. There is a question whether he approached the dwelling and spoke with the Accused. He was outside of 74 M Street for some time milling around the boundary of 74 and 76 with some other people. It appeared from the CCTV footage that members of that group were smoking. At 10:45pm, the Deceased walked towards 74 M Steet: Exhibit 14 [6]-[10].

10. I interpolate that, while not an agreed fact, it is common ground that when the Deceased entered the curtilage of 74 M Street, an area not covered by the CCTV camera, a fight broke out between the Deceased and the Accused over a grievance of the Deceased against the Accused, about the origin of which I will have more to say. This fight continued in one way or another moving beyond the boundary of No 74, back into the camera’s view on the nature strip in front of 74 and out of it again when they moved behind the large passenger vehicle parked on the driveway of No 76 obstructing the camera’s view, up the driveway of No 74 and onto the road (Exhibit 14 [11]-[12]).

11. From the footage (Exhibit 10), at 10:51pm, the Deceased first and then the Accused following are shown coming from the direction of 74 M Street and along the driveway where it crosses the nature strip. The CCTV footage shows two men moving from the left of the screen toward the right. The first man is depicted stopping, turning and kicking towards the following man. He steps forward towards the following man, stops momentarily, before continuing along the driveway towards the roadway. The following man continues after him. The first man is the Deceased and the following man the Accused. Despite repeated viewings in court and later in chambers the clarity of the footage is not good. Vision of the men’s movements and interactions is then further obscured when they move behind the mid-size SUV-style vehicle parked on the driveway of 76 M Street, occupying the middle foreground of the footage: Exhibit 14 [11], Exhibit 10.

12. There is no dispute, and other evidence, including from the evidence of the Accused, confirms that while out of the camera’s view, but with the fight continuing, the Accused fatally wounded the Deceased by stabbing him with a knife. Expert evidence from two forensic pathologists, which, again, is not disputed, establishes that the Deceased was stabbed twice but it is impossible to say in what order the wounds were inflicted. Of these wounds, one to the left side of the Deceased’s lower chest was fatal. It penetrated his ribcage, passed through his lung into his pericardial sac and then the apex of the left ventricle of his heart. This wound was the direct cause of death (Exhibit 14 [29]). The Deceased died perhaps as long as fifteen minutes later from the resulting massive blood loss.

13. The fight ended with the stabbing. Notwithstanding his mortal wound the Deceased was able to re-enter his car at about 10:52pm and drove to the home of his nephew in a nearby street. He was able to stop and get out of the car but collapsed at the edge of the carriageway and lost consciousness. His nephew, Cecil Lardner, as well as responding Police and paramedics, who were on the scene by 11:07pm, were unable to revive him: Exhibit 14 [23]-[26].

14. Immediately following the departure of the Deceased, the Accused likewise departed the scene. I am satisfied that at about 10:53pm he was assisted by Leearna Davis into a Mazda CX7 SUV driven by Veronica Holten. During the final stage of the altercation on the roadway, Ms Holten had driven past twice: Exhibit 14 [13]-[17]. She had passed the scene, slowed and U-turned in a break in the median strip and drove past again in the opposite direction on the other side of the road, before U-turning again in another break, then approaching No 74. I am satisfied that as she slowed in her approach Leearna Davis ran to Ms Holten’s car and spoke to her. I am also satisfied that when Ms Holten brought the car to a halt, Leearna Davis guided the Accused to the vehicle which he entered and was driven from the scene by Ms Holten (Exhibit 14 [21]-[22]). It is convenient to say now that the Crown disavow any reliance on the Accused’s conduct after the event as evidence of guilt.

15. As these agreed or undisputed facts indicate, there is no real issue about what happened on 1 March 2023 in basic terms. Why the Accused stabbed the Deceased, and what the precise circumstances were, including who brought the knife, are very much in dispute. These are the questions relevant to the Accused’s guilt or innocence.

Part 2 - The Crown Case

16. I will now set out, in broad terms, what the Crown submits are the events of the evening of 1 March 2023 and what it submits I should find.

17. The Crown case is that the Deceased believed that the Accused owed him money, most likely over the supply of drugs sometime prior to 1 March 2023. The “debt” may have arisen from either the poor quality of the drugs supplied or about the non-supply of drugs paid for. Tensions built between the pair over the period leading up to 1 March2023. The Accused offered assurances that the Deceased would be repaid. The Deceased went to 74 M Street to obtain satisfaction of the perceived debt.

18. On the Crown case, when the Deceased first arrived at 74 M Street, he and the Accused had a verbal argument about the repayment of the debt. The Deceased went there unarmed. The Accused had no intention of repaying a “debt” he denied and they argued. The Deceased then left, joining the people milling outside 76 M Street.

19. The Crown case is that while the Deceased was outside, the Accused armed himself with a knife from the kitchen at 74 M Street against the prospect of a return of the unsatisfied Deceased. When the Deceased did return, a fight ensued, in which the Accused was armed and the Deceased was not. The Deceased retreated and attempted to get away to his car. The Accused pursued him outside, where he stabbed him twice.

20. The Crown submits that there can be no doubt that the Accused had the intention, at least, to inflict grievous bodily harm. The Crown also submits that the Accused did not, in fact, believe that his conduct was necessary to protect himself, and, therefore, self-defence is not available. Alternatively, if I was not satisfied that the Crown had discharged that onus, the Crown submits that the stabbing of the Deceased was not reasonable in the circumstances as the Accused perceived them, and, if not guilty of murder, the Accused would be guilty of manslaughter by excessive self-defence.

Part 3 - The Case for the Accused

21. Bearing in mind, as I will direct myself, that the Accused carries no onus of proving any fact in issue, the case for the Accused is as follows. In the morning of 1 March 2023, when the Deceased and Mr Pritchard Vale attended 95 M Street, it was for the purpose of the purchase of drugs. Money was exchanged for methylamphetamine at that time. After Mr Pritchard Vale and the Deceased left, the Accused began drinking and spent most of the day at 95 M Street. Later that evening, the Accused went with Ms Leearna Davis to 74 M Street to clean up, to put the house in shape for the return of Ms Holten and her children.

22. The Deceased attended 74 M Street once and once only later that night. He sought to ventilate his grievance, which the Accused did not understand. The Deceased was angry and swore at the Accused and challenged the Accused to a fight outside the house. At the start, the fight consisted purely of trading punches and attempted kicks. No knife was produced by either party. It is only when the fight reached the driveway, as the pair continued to trade blows and grappling with each other, that a knife fell to the ground from the person of the Deceased. That was said to have occurred in the area obscured from sight in Exhibit 10.

23. Fearing then for his life, the Accused pushed the Deceased away. He picked up the knife and stabbed the Deceased. He did so in self-defence, fearing that, had the Deceased regained possession of the knife, he would have killed the Accused.

Part 4 - Directions of Law

24. Under s 133 of the CPA*,* I am empowered to make any finding that could have been made by a jury on the question of the guilt of the Accused and that finding has, for all intents and purposes, the same effect as the verdict of a jury. However, unlike juries, whose reasons are inscrutable, I am required to give judgment in a judicial manner. The judgment must include the principles of law I apply and the findings of fact I make. Where the circumstances would have required a warning to be given to a jury, including about its approach to the assessment of certain evidence, I am required to take the warning into account when dealing with the evidence the subject of the warning.

25. The fundamental starting point in any criminal case is that the Accused is presumed to be innocent of the offence with which he is charged unless and until the prosecution proves his guilt beyond reasonable doubt by evidence which I accept. The expression “beyond reasonable doubt” encapsulates the standard of proof resting upon the prosecution in a criminal case and is the highest standard of proof known to our law. It has been referred to as “designedly exacting” and it is no mere collocation of words. It refers to a standard of persuasion that must be engendered in me by the evidence led to discharge the onus. While the expression should be allowed to speak for itself, the onus is not discharged by proof that the Accused probably murdered the Deceased, or even that it is very likely that he did. Nothing short of proof beyond reasonable doubt discharges the onus resting on the Crown to rebut the presumption of innocence. The onus of proof never shifts and rests with the Crown throughout the trial until I make my findings. The Accused carries no onus in relation to the elements of the offence of murder and has no obligation to give or call evidence to establish his innocence. His innocence is presumed.

26. The burden of proof, however, does not require the Crown to prove each and every fact beyond a reasonable doubt. What the Crown must prove to that stringent standard is each legal element of the offence of murder. In this case, they must also eliminate beyond reasonable doubt any reasonable possibility that the Accused acted in self-defence. I will return to the meaning of self-defence at law shortly.

27. As I have just directed myself, it is the elements of murder which the Crown must prove beyond reasonable doubt. I remind myself that criminal responsibility for murder is established if, and only if, the Crown prove beyond reasonable doubt that the Accused by his voluntary or deliberate act of stabbing the Deceased caused his death with the actual specific intent of either killing him or inflicting grievous bodily harm upon him.

28. Let me emphasise that there is no issue in this trial that by his voluntary act of stabbing the Deceased the Accused caused his death. However, the “mental element”, as it is sometimes referred to, remains in issue. An intention to kill requires no explanation. What constitutes grievous bodily harm or, to cast it in modern language, really serious bodily injury is a question of fact. The Crown must prove that the Accused had that actual specific intent at the time he fatally stabbed the Deceased.

29. The terms intention and intent are familiar words which carry their ordinary, everyday meaning. The Crown need to prove that when he stabbed the Deceased the Accused actually meant to bring about the result of death or really serious injury; he must have actually turned his mind to that end.

30. Because we cannot see into the mind of another, it is necessary for the Crown to prove the necessary intent by circumstantial evidence. It is necessary for that purpose for me to consider all of the surrounding circumstances: what happened before, after and at the time of the stabbing; the nature of the Accused’s conduct and any admissions he might have made about his state of mind in his evidence. I need to consider all of the circumstances together as a whole rather than in a piecemeal fashion. Where a specific result is an obvious and inevitable consequence of a person’s act, and where a person deliberately does that act, I may readily conclude that they did so with the intention of achieving that particular result. But there is no presumption of law that a person intends the natural consequences of his act. Intent is a fact which must be proved.

31. In considering whether the Accused had formed the intention to kill or inflict grievous bodily harm, one matter which I will need to consider is the effect upon the Accused of the alcohol and methylamphetamine which he said he consumed on the day of the incident. Whether he was or was not intoxicated, and the degree of that intoxication, are issues of fact that I will need to consider. However there seems to be no dispute that he had been drinking that day. It is for the Crown to satisfy me beyond a reasonable doubt that the Accused had the requisite intent in spite of his intoxication.

32. An intoxicated person may act without forming any particular intention at all. He may not turn his mind when he acts to the achievement of any particular purpose. So too, an angry person who may act in a “blind rage”. However, an intoxicated person may be considerably affected by drugs or alcohol and still commit an act with a specific purpose in mind. The fact that a person’s judgment may be affected by substances or highly charged emotions in a way which makes them act differently from normal does not necessarily mean that the person was not acting with a specific intention. The question is not about capacity to form the requisite intent; it is a question of fact about whether the Accused actually formed the requisite intent for murder.

33. It is important for me to bear steadfastly in mind that, as “intent” is an element of the offence, I cannot infer intent from circumstantial evidence unless I am satisfied that the requisite intent for murder is not only a rational inference but also the only rational inference available to be drawn from all of the circumstances established by all of the evidence I actually accept.

34. While not obliged to do so, the Accused has chosen to give evidence in his own defence. The fact that he has chosen to do so in no way alters the onus and standard of proof borne by the Crown. There are important principles informing the application of the standard of proof in circumstances where (as was the case here) the Accused has given exculpatory evidence, which I will explain later. But before doing so, I wish to record that, in his evidence, the Accused admitted stabbing the Deceased. In substance, his evidence was that he did so in self-defence. It is necessary that I explain self-defence now.

35. The law of this State recognises the right of a person to act in their own self-defence from an attack or threatened attack from another person, even to the point of using lethal force. Although referred to as a defence, it is better thought of as a legal justification for conduct that would otherwise be a crime. This is why the onus is on the Crown and not the Accused. It is also important for me to bear in mind that self-defence is not negatived by proof beyond reasonable doubt that the Accused acted with the actual specific intent of killing or really seriously injuring the Deceased. As I have said, self-defence justifies, or excuses, in law what would otherwise be the most serious offence of murder.

36. Depending on the circumstances found by me, self-defence may be either a complete or a partial defence to the charge of murder. If a complete defence, the Accused is not guilty of murder and is entitled to be acquitted. If a partial defence, the Accused is not guilty of murder but is guilty of the somewhat less serious offence of manslaughter by excessive self-defence.

37. Self-defence will be a complete defence if the Crown fails to negative beyond reasonable doubt each of these matters:

(a) the reasonable possibility that the Accused believed that stabbing the Deceased was necessary in order to defend himself; and (b) the reasonable possibility that what the Accused did was a reasonable response to the circumstances as he perceived them.

I have used the expression “reasonable possibility” to emphasise that the Crown bears the legal onus.

38. Self-defence will operate as a partial defence only, reducing murder to manslaughter, if the Crown fails to eliminate the first matter but eliminates the second. Self-defence will not apply at all if the Crown eliminates the first matter. It will be unnecessary for me to consider the second matter in this event.

39. Intoxication is also relevant to self-defence. The first issue, concerning the Accused’s perception of circumstances, is adjudged subjectively from the Accused’s point of view, including by reference to the Accused’s state of intoxication, as I find it to be. On the other hand, whether his conduct was a reasonable response is answered by considering what would have been a reasonable response by a sober person in the circumstances as the Accused perceived them, whatever his state of intoxication. The onus remains on the Crown throughout. But the reasonableness of the Accused’s response is to be determined by objective criteria, albeit allowing for the circumstances as the Accused perceived them.

40. As to whether the Accused believed his actions were necessary, I must consider the circumstances as he believed them to be at the time of the incident. It is his perception that I must consider without the benefit of hindsight but as he saw them then. Any reasonably possible state of intoxication of the Accused must be considered in determining both the issue of necessity and the circumstances as the Accused perceived them.

41. To eliminate the second issue, the Crown must prove that, having regard to the circumstances as the Accused perceived them, his response was unreasonable or excessive. That is a matter for my judgment and is independent of what the Accused thought. That is a question to be resolved objectively by reference to the standards prevailing in our community and with regard to all the aspects of the Accused’s response, including the nature, degree and means by which force was used. If the Crown fails to prove beyond reasonable doubt that the Accused’s conduct was unreasonable or excessive, then I will return a verdict of not guilty. However, if the Crown does prove that the conduct was unreasonable or excessive, then I will return a verdict of not guilty to murder, but guilty of manslaughter. This is sometimes referred to as manslaughter by excessive self-defence.

42. When a person is charged with murder, it is very common that, if the Crown fails to prove murder beyond reasonable doubt, the question will arise whether manslaughter has been proved beyond reasonable doubt in the alternative. Excessive self-defence is not the only basis upon which I may have to consider the alternative verdict of manslaughter. If I am not satisfied beyond reasonable doubt that the Accused stabbed the Deceased with the requisite intent for murder, and therefore is not guilty of murder, a question will arise whether he is guilty of manslaughter by unlawful and dangerous act. Manslaughter by unlawful and dangerous act occurs when an Accused causes the death of the Deceased by a voluntary act which is both unlawful and dangerous. For the reasons I have already rehearsed, there is no issue that the Accused’s act of stabbing the Deceased was voluntary in the legal sense. An act is dangerous if a reasonable person in the position of the Accused stabbing the Deceased would have realised that he was exposing the Deceased to an appreciable risk of serious injury. A reasonable person is sober.

43. The question of dangerousness is determined objectively. The subjective state of mind of the Accused is irrelevant. It matters not whether he failed to appreciate the potential consequences of his actions because he failed to turn his mind to them. Serious injury involves something less than grievous bodily harm. It could hardly be gainsaid that a reasonable, therefore sober, person in the position of the Accused stabbing the Deceased would have realised that he was exposing the Deceased to an appreciable risk of at least serious injury, whether or not he intended that consequence. However, self-defence remains a central issue.

44. A stab wound will not be unlawful if it was inflicted in self-defence. Unlike in the case of murder, for manslaughter, self-defence only operates as a complete defence. The elements are as discussed above (at [37]). But I must acquit unless I am satisfied beyond reasonable doubt that the Accused either did not believe when he stabbed the Deceased that it was necessary to do so in order to defend himself in the circumstances as he perceived them to be, or stabbing the Deceased was not a reasonable response in the circumstances as the Accused perceived them. To be clear, the Crown will have negatived self-defence for the purpose of manslaughter if either limb is excluded to my actual satisfaction beyond reasonable doubt. Intoxication remains relevant to self-defence as I have explained above (at [39]).

45. I will also say here that I have heard evidence in this trial of the Accused’s involvement in drug dealing. I remind myself that he is not on trial for the supply of a prohibited drug. Whether or not he supplied or agreed to supply drugs to the Deceased is not relevant as to whether the Crown has established the elements of murder (or manslaughter for that matter) beyond reasonable doubt. It is relevant only to provide possible context to the events leading up to and culminating in the fatal incident. Should I find that the Accused was involved in the supply of drugs I shall not draw any adverse inferences from that.

46. What I have said about the onus and standard of proof never shifting and remaining on the Crown throughout is entirely unaffected by the circumstance that the Accused chose to give evidence in his own defence. I repeat that it remains that he carries no onus and is required to prove nothing. However, the circumstance of him giving evidence affects how the Crown’s onus of proof applies in a practical way. There are three relevant aspects to this:

47. First, if I accept the Accused’s evidence that he stabbed the Deceased in self-defence or without turning his mind to the consequences of his actions, I must return a verdict of not guilty. This is because in that event, necessarily the Crown will have failed to disprove self-defence, on the one hand, or prove intent, on the other.

48. Second, even if I have some difficulty accepting the Accused’s evidence but believe it might be true at least as a reasonable possibility, then I also must return a verdict of not guilty. This is because such a belief of mine would mean that I have a reasonable doubt about an element of the offence which the Crown is required to prove beyond reasonable doubt.

49. Third, if I do not accept the Accused’s evidence at all as a version that could be true, even as reasonable possibility then I must put his exculpatory evidence to one side entirely. But I may not decide he is guilty simply because I do not believe him. Evidence that I do not accept proves nothing. That is to say, the question still remains whether I am persuaded that the Crown has proved its case beyond reasonable doubt by evidence that I do accept.

50. Twenty civilian witnesses, including the Accused, gave evidence before me during the trial. The evidence of many of them including the Accused was challenged or, in some instances and respects, contradicted or discredited by prior inconsistent statements made to Police or other civilians witnesses. The officer in charge of the Police investigation also gave evidence which was largely unchallenged. As is common the officer was a vehicle, if I may put it that way, for introducing a body of evidence concerning the investigation, the authenticity and reliability of which was not contested.

51. As much of the evidence of the civilian witnesses was challenged, contradicted or sought to be discredited it is necessary for me to decide which of their evidence or what part or parts of the evidence of individual witnesses I accept. In this respect the Accused is in no special category. I must evaluate his evidence in the same way as I evaluate the evidence of all of the witnesses. In respect of the body of evidence, and the evidence of each witness, I am entitled to take a selective approach. This means I am entitled to accept part of the evidence and reject other parts, even of the evidence of a particular witness. The law does not require me to take an all or nothing approach in this regard.

52. In assessing the evidence I accept or reject, I will have regard to the impression the witness made on me, making every allowance for the stress of being under scrutiny in the environment of the courtroom. More importantly, I will have regard to the consistency of the account, internally and with undisputed or incontrovertible facts; and its consistency with the apparent logic of events, so far as logic has a part to play in the resolution of issues of the type for determination.

53. Given the challenges made to the evidence of witnesses, prior inconsistent statements were admitted as evidence of the truth of the representations made by some of the witnesses out of court. This evidence is in the nature of hearsay. It is necessary to warn myself about the potential for hearsay evidence to be unreliable in accordance with the provisions of s 165 of the Evidence Act 1995 (NSW). Evidence of this kind must be treated with caution. It is not given under oath in open court nor is it directly amenable to cross-examination. As this case has demonstrated, a person may say a thing or sign a statement which contains representations from which they later seek to resile or qualify. Where hearsay has been relied upon in this case, I will scrutinise it closely before accepting it. I am not bound to reject that evidence. If having borne the reasons why hearsay evidence might be unreliable firmly in mind while examining the hearsay carefully, I am persuaded it is in fact reliable, then I am entitled to take it into account and rely on it as part of the evidence in the case. It should however be borne in mind that each of the persons to whom important hearsay representations have been attributed has been called to give evidence in the Crown case and cross-examined about their out of court statements either by the Crown by leave or by counsel for the Accused. To my mind this reduces the degree of unreliability that one would ordinarily associate with hearsay evidence.

54. I received expert evidence in written form from three relevantly qualified experts and oral testimony from two of them. Again, there was little challenge to their opinions. In these circumstances I direct myself that I am not bound to accept the evidence of any witness even an expert, but to the extent that expert opinion is unchallenged I should accept it unless I have a good reason for not doing so.

Part 5 - Evidence

52. I turn now to the evidence in the trial. I have already said that the CCTV footage provides important points of reference for the unfolding of the narrative of the events that occurred around 74 and 76 M Street after 10:00pm on 1 March 2023. As I have tried to make clear however, the quality of the footage in the recording made in the hours of darkness is not good. Nothing of interest occurred during daylight hours. I understood the purpose of the daylight footage was to orientate the viewer to the topography of the area within the view of the camera.

53. At night, all figures are shadowy, although at different times the light of a passing car, a cigarette lighter or a mobile telephone better illuminates the scene. There are obstructions that I have referred to. The camera is fixed on the exterior of 78 M Street looking east. Fencing, hedging and a parked car on that property obstruct the camera’s view. These obstructions could be eliminated to a degree by use of the zoom function on the computer used when playing the recording in court. However, the visible movement of persons depicted in the footage is mostly confined might to the top left-hand corner or the image. There are also unobstructed images available in the far right of the screen, which show some relevant vehicle movement and movement of some relevant persons. However, the central foreground is obstructed by the car parked in the driveway of No 76, to which I have referred.

54. In an attempt to improve the quality of the vision, the nighttime footage has been enhanced by splitting the screen horizontally. The bottom portion is somewhat improved by use of the zoom and appears to be somewhat brighter than the top portion. Further zooming can be applied to the lower portion, which helped some witnesses focus, but the degree of clarity, such as it is, was reduced in the process.

55. It was difficult for some witnesses to see the screen on the wall of the court from their position in the witness box and the bench monitor was moved as close to the witness box as its connecting cables would permit. This improved things for some witnesses.

56. There was an understandable tendency for witnesses depicted in the footage to interpret what they were looking at in court, rather than explain what was happening by reference to what they had seen, heard, or otherwise perceived at the time of the events depicted on the footage. While I reminded them about this, I was not always sure that the former tendency had been eliminated. Moreover, because of the lack of clarity, I was concerned that witnesses were taking Counsel’s word for what was depicted in the segment of footage that they were being asked about, rather than relying upon their own recall, even if that was assisted by viewing the footage.

57. It is also appropriate to remind myself that, while the footage was created by recording contemporaneously with the events depicted, it represents a two-dimensional record of events which occurred in real time and space. It is not clear, and it does not entirely speak for itself, even with repeated viewing. I bore these things in mind when assessing it. While it is very useful for points of reference, the accounts of witnesses, so far as they are reliable, were more significant.

58. Of the civilian witnesses, especially those whom the CCTV footage and other evidence suggested probably should have been in a position to give an eye-witness account of the fight between the Accused and the Deceased, the stabbing of the Deceased, and its immediate aftermath, very few were forthcoming with a plain and clear account of having seen anything. Some witnesses who had given an account to Police in the days or weeks following the events disavowed their Police statement. Others may have misled Police (and the Court) by denying that they had any useful information to give. Ms Leearna Davis and Ms Veronica Holten, who were very close to the Accused and probably eyewitnesses to at least aspects of the fight, declined to make statements to Police, as was their right. But surprisingly, when required to give oral evidence, they disavowed having seen anything important, notwithstanding things they had said during and immediately after the incident the subject of these proceedings.

59. Ms Sandy Davis, a resident of 76 M Street, whom the evidence establishes was out the front on her nature strip when the fight between the Accused and the Deceased spilled out from No 74, told Police and the Court that she had seen nothing, a position to which she staunchly adhered even when confronted with the clandestine recording of a conversation about the events with Ms Lesley Christine Davis.

60. Perhaps most incredibly to my mind, Mr Lesley Dean Davis, whose mother made the clandestine recording to clear him of suspicion, disavowed his Police statement (520.4-9T), notwithstanding it had been made in circumstances where he believed he was under suspicion and had come forward to clear his name.

61. Confronted with these difficulties in fact-finding and bearing in mind the caution to which I have already referred with which one must scrutinise hearsay evidence, I was drawn to the out-of-court statements of these witnesses as a more reliable account than their testimony in court.

62. Despite the familial circumstances to which I have referred, which one would expect to have engendered harmonious, or at least cordial, relations between the Accused and the Deceased, I am satisfied that the Deceased had developed a grievance against the Accused over the supply to him of what the Deceased regarded as inferior-quality drugs, which did not give him the desired effect.

63. I have no doubt that the Deceased was a user of prohibited drugs, in particular, but not exclusively perhaps, methylamphetamine, or ice as it is known. There is evidence, including from his widow, Ms Jessica Howard, that over the October-January period preceding the stabbing, the Deceased had undertaken a full-time residential course of drug rehabilitation. He had been given what I took to be leave of absence from that course to attend the funeral and associated sorry business of a close relative. Although he did not end up attending the funeral, he did not resume the course.

64. His sister, Sandy Vale, said he used ice, and she saw him smoke that drug through a bong, a makeshift waterpipe. (80.25T). Sandy Vale also said that the Deceased said that the Accused (or someone else) owed him $50.00 (84.25T). Under s 38 cross-examination by the Crown Prosecutor, she eventually agreed that she had told Police that he had said, “I’m gunna fight [the Accused]. He owes me six caps”. I understand “cap” to be short for a drug capsule (84.45T). Despite a creeping degree of prevarication, Sandy Vale seemed to accept when asked a second time that the Deceased had said “I’m going to fight [the Accused], he owes me six caps” (85.15T). She said that the Deceased and the Accused were “rowing” and that they had had a fight before (85.30T).

65. There was a degree of evasiveness in Sandy Vale’s evidence. Despite appearing to accept that the Deceased had said he was going to fight the Accused, in cross-examination by counsel for the Accused she denied he had said that (91.34T). However, she clearly said that to Police on 5 March 2023, and she accepted her recollection would have been better on that day than now (89.40-50T). I accept the accuracy of the relatively contemporaneous statement made to Police. She also said that the context of the Deceased making that comment was that he was behind in his board or rent due to his father, and his father was chasing him for it.

66. The widow of the Deceased, Ms Jessica Howard, said that the Deceased had visited her at about 9:30pm on the evening of 1 March 2023. She regarded him as unaffected by drugs. She said that she would not let him around the children otherwise (98.6T). It was implicit in her evidence that the Deceased was still using drugs at that time. Ms Howard was somewhat resistant to cross-examination. She was dismissive of the questions and of the need to answer them directly. She agreed that she had told Police that the Deceased’s ice use was worsening since he had left rehabilitation, and that he was using at least twice or three times per week. He would nag people to supply him with ice. She agreed that she had said those things but distanced herself from the statement by saying “I don’t even know why I said that” (102.9T). Understandably, she said that was very upset when she gave her statement to Police on 2 March 2023, the day after the Deceased was killed (102.15T). Notwithstanding Ms Howard’s explanation for distancing herself from her Police statement, I am of the view that the shock of the killing of the Deceased is likely to have focused her mind, and her statements to Police about his drug use are very likely to have been accurate.

67. April Vale was the niece of the Deceased and the daughter of Ms Sandy Vale. She gave evidence about her grandfather, Mr Harry Vale, chasing the Deceased for the rent and the Deceased explaining that he was owed money.

68. April Vale was recalled later in the trial and gave evidence about a telephone call she said she had overhead between the Deceased and the Accused on the afternoon of 1 March 2023. She said she was able to overhear the conversation because the Deceased had the phone on speaker. She gave evidence that the Deceased was agitated had said to the Accused “Brother I want my money I’m sick of waiting. I want Dad’s rent money. You made me wait all week.” She said that the Accused appeared to acknowledge the debt and said that he would have the money for him when his daughter, Shanaine, and her partner, Fred, returned to Kempsey. She said that the Accused said, “By the time you get over they’re going to be there with your money”. April Vale said the Deceased had made “a few phone calls [to the Accused] leaving messages for him previously” (627.50T).

69. In cross-examination, April Vale admitted that the first time that she had mentioned the phone call was when she had appeared at court on the first day of the trial and that she failed to mention anything about the phone call when she made her first statement on 2 March 2023. She was taken through that statement in detail and agreed that its contents were true. Not only did she agree that she had not made any statement to Police about the phone call, but, before the Deceased’s phone call to the Accused and before the Deceased left home, he simply said that he needed his father’s car “to go and see dickhead Conrad” and April Vale, who was minding the car keys for her grandfather, handed them over (638.15T).

70. There was no evidence in the nature of Cellebrite downloads or call charge records of the type commonly tendered in criminal trials to confirm that this disputed phone call took place. The Accused denied that such a phone call had taken place. He denied owning the Deceased any money (893.48-894.19T). Moreover, and perhaps more significantly on this point, Ms Shanaine Lardner gave evidence. She categorically denied having left Kempsey that day with her partner Fred to travel to Sydney on any errand for her father. She had made no plans to see him that day. She had no plans to give him money, and she had no conversation with him about money on that day (1050.15-42T). I have to say that I was very impressed with Ms Lardner as a witness. She was firm and appropriately forthright, and I found her evidence thoroughly believable. Her account was entirely unshaken by cross-examination by the experienced Crown Prosecutor. I believe her evidence unreservedly. I appreciate that the truth of Ms Lardner’s account does not of itself prove that no such conversation as that posed by April Vale took place, but it certainly goes some distance in that direction. Given what I regard as the unexplained lateness of April Vale’s account about the contentious telephone call and the lack of any corroboration supporting it whatsoever, I reject her evidence about overhearing that phone call. I accept the denial of the Accused that no such phone call took place.

71. I turn then to the evidence of the clandestine recording made of the conversation between Ms Sandy Davis and Ms Lesley Christine Davis, the mother of Mr Lesley Dean Davis (Exhibits 31 and 32).

72. I have already indicated that I found Sandy Davis a very unsatisfactory witness. In fact, the only conclusion I can draw is she sought to give false evidence. I accept the truth of the prior inconsistent statement recorded on the clandestine recording which I admitted under s 138 of the Evidence Act: R v Lardner (No 8) [2026] NSWSC 934. Sandy Davis’s evidence was that the Deceased had attended her home at 76 M Street on the evening of 1 March 2023. She and her partner, Mr Anthony Dunn-Duval, had a conversation with him during which the Deceased asked whether they had any change. They answered in the negative and he left. She last saw him walking towards the car in which he had arrived (325.27T) and she walked back inside her home. She said she did not see the Deceased again prior to his death (325.34T). When asked about whether she knew anything about the death of the Deceased from her own observations, she said: “no, no. I don’t know nothing, I never seen nothing”. After the Deceased left, she did not go outside her house (326.15T). Specifically, she denied seeing any fight between the Accused and the Deceased on or near the driveway of 74 M Street; seeing the Accused pick up a knife from the ground; or stabbing the Deceased (366.14-25T).

73. Ms Lesley Christine Davis was concerned that rumours had been circulating in the Kempsey community in the days and weeks after the killing of the Deceased that her son was responsible for his death. To avoid her son being wrongly charged, she undertook her own investigation. Given the proximity of Sandy Davis’s home to where the fatal stabbing took place, she thought Sandy Davis may have information (539.38-40T). She surreptitiously recorded the conversation on her telephone. In the recording, Sandy Davis makes clear that the Accused, and not Lesley Dean Davis, stabbed the Deceased. Her account also made clear that Lesley Dean Davis was not then present.

74. Sandy Davis said more than once “Conrad done it” by reference to the Accused. Sandy Davis also claimed to have been the last person to speak with the Deceased before he went to see the Accused, who was then at 74 M Street. That interaction between the two seems to have immediately preceded the fatal altercation. It is apparent that Sandy Davis saw what happened because she said that the Accused and the Deceased “had a fight that day”. During her final conversation with the Deceased, he said to her that he had seen the Accused earlier that day. The implication seems to be that this was for the purpose of purchasing drugs for his personal consumption. He told Sandy Davis he went back to see the Accused “and was like ‘that was shit, I want my money back’”.

75. Sandy Davis was also present when Ms Leearna Davis “run screaming … saying … ‘he just stabbed him. Conrad just stabbed Dave’”. It is possible that Sandy Davis did not see the stabbing, but she seems to have been present at the front of her home when it occurred. This is confirmed by the CCTV footage, which shows Sandy Davis out the front of her home when the stabbing took place. For present purposes, the significance of her evidence is that it confirms the impression formed from other evidence that the Deceased had a grievance against the Accused about the quality of drugs supplied to him, which he was not prepared to let go.

76. I should say that after being confronted with the inconsistent account she gave on the clandestine recording, Sandy Davis insisted that she was only parroting what Lesley Christine Davis told her to say (371.48T), indeed, she said: “I was repeating what she told me to say” (372.4T). She continued to steadfastly deny that she had seen or heard anything about the stabbing (372.39T; 374.8-9T). I do not believe that evidence. Not only is it inconsistent with the clandestine recording but it is also inconsistent with the CCTV footage in which she is depicted out the front of 76 M Street and indeed in a position to see what was happening. Moreover, I found Lesley Christine Davis to be an impressive witness. She was telling the truth. I reject the account that there had been some rehearsal of the account in the clandestine recording for the purpose of misleading Police. I should also say, from my observations of Sandy Davis on the audio-visual recording, she seemed to be speaking spontaneously from her own knowledge in an excited fashion. I did not have the impression it was a rehearsed performance in any way.

77. Mr Anthony Dunn-Duval is the partner of Sandy Davis. He knew both the Accused and the Deceased well because they had grown up together in the Greenhill region of Kempsey (596.9T). The Deceased continued to live there. He gave evidence that the Accused had been “reared” by Mr Harry Vale (596.25T). Initially, when his attention was directed to 1 March 2023, he said: “I couldn’t remember yesterday, mate” (597.22T). He said he was in the shower when the Deceased arrived at 76 M Street and Sandy Davis had told him that the Deceased wanted to see him (598.25T). He initially denied any conversation which may be of significance to the trial. There was chitchat only (398.40-45T). He said he had heard some screaming outside later in the night which woke his baby (601.30T). When asked whether he had made a statement to Police on 27 April 2023, he was vague but said he was illiterate (602.20-39T). He agreed that he had told Police that he saw the Deceased leaving in his car smiling and saying, “See you later then” (607.15T). He avoided the question whether during his conversation with the Deceased the latter had said “Conrad ripped me off, we went halves in something and he robbed me. I’m gonna bash him” (607.35T). He eventually said: “it’s something like that. I’m not too sure” (607.45T).

78. When shown the CCTV footage (Exhibit 10), Anthony Dunn-Duval identified himself, Sandy Davis and the latter’s cousin, Brendan “Solo” Smith walking from 76 M Street about seven minutes after the fatally wounded Deceased left the vicinity in his car. When the footage was re-wound to a point about seven minutes before the Deceased left, Mr Dunn-Duval identified footage of Sandy Davis talking to the Deceased before he walked off, but he said that he could not really see the screen that well (609.5-19T). At a point about three minutes before the Deceased left, Mr Anthony Dunn-Duval was asked whether he identified a person approaching 76 M Street. When he said he could not, he was taken back to his statement where he stated that Leearna Davis was standing at the front fence of 76 M Street. His ultimate answer was “not really, but yeah” (610.11T).

79. I will interpolate that the obvious inference to draw from Antony Dunn-Duval’s evidence, taken in conjunction with Exhibit 10, is that the Deceased visited 76 M Street and spoke with Sandy Davis at some time after he is shown arriving and parking in front of 74 M Street at 10:21pm (by the clock on the CCTV footage). More specifically, he spoke to her at around 10:40pm. Anthony Dunn-Duval’s evidence also seems to confirm that the person depicted at the front fence of 76 M Street at about 10:42pm (by the clock) is Leearna Davis, albeit he claims not to know her well. It was not put to him that he had seen the fight between the Accused and the Deceased and nor was he cross-examined by counsel for the Accused about that matter, but his evidence supports that the Deceased had a grievance against the Accused and an intent to assault the Accused if the grievance over drugs was not satisfied, presumably by the repayment of the perceived debt.

80. While I am on this topic, I think it appropriate to refer to the evidence of Mr Lucas John Dumas. Lucas Dumas appeared to have attended the vicinity of 74 and 76 M Street twice on the evening of 1 March 2023. Exhibit 10 depicts a single bicycle rider arriving in the vicinity of 74 M Street at about 10:21pm and leaving again seven minutes later at 10:28pm. The rider seems to have walked into the yard of 74 M Street, although it is difficult to say having regard to the limitations of the CCTV footage. There is, however, no question that he, in the company of Lesley Dean Davis, is one of the two cyclists who arrive at about 10:47pm, about one minute after the Deceased drove away and within 20 seconds of the Accused leaving in the car driven by Veronica Holten, who is also Lesley Dean Davis’s sometime partner.

81. Returning to the evidence of Lucas Dumas, he knew the Deceased but not well (552.20T). He regarded the Accused as “just one of the uncles” (552.29T). He was a mate of his father. In his evidence-in-chief, Lucas Dumas did not give evidence about visiting the Accused at 74 M Street earlier in the evening or seeing the Deceased at any time. He said that he had ridden to the vicinity of 76 M Street, which he knew to be the home of Sandy Davis, only once and then in the company of Lesley Dean Davis. They stopped for a short period. Lesley Dean Davis spoke to Leearna Davis. Mr Lucas Dumas did not overhear the conversation. They then rode away and went their separate ways. He was not shown any of the CCTV footage at this time.

82. In cross-examination, Lucas Dumas agreed that he spoke to Police on 2 March 2023 and made a signed statement on 24 April 2023. He agreed that when he spoke to Police on 2 March 2023, they recorded his account in a notebook, at least, “Roughly yeah” (557.40T). He signed the statement on 24 April 2023 following an interview with the officer in charge, Detective Senior Constable Troy Smith. In the record of the statement of 2 March 2023, he said he was at 76 M Street on 1 March 2023 in the front yard. He saw the Deceased pull up in a car by himself. He said, “He was going off his head. He had a shirt on and shorts and pulled up out the front. He said, ‘I got shit, I didn’t get my money’s worth. I fell asleep on it.’ … He kept on going off about it.” He agreed, saying that he recalled saying “bits and pieces” of that account (558.27T). He was taken to his signed statement of 24 April 2023. Counsel for the Accused drew to his attention that he confirmed at the outset that what he had said on 2 March 2023 “was the truth” (558.50T). He remembered saying that but said that he was possibly under the influence of drugs (559.4T).

83. From this point, Lucas Dumas commenced to back-pedal furiously, no pun intended. He said that he did not know whether the person he saw was the Deceased or not (559.10T). He knew of him, but he did not know him well enough to recognise him: “It could have been anyone” (559.19T). He explained that he was under the influence of drugs (559.25T). He did not seem to deny the person was “going off his head”. His main point seemed to be that he “couldn’t tell you if that was [the Deceased] or not” (559.30T). In answer to a question of mine, he agreed that the person that got out of the car, which, in my view, must have been the Deceased, was “going off his head” (559.43T).

84. Later in his statement of 24 April 2023 (MFI 13), he said he did not see the Deceased and he did not speak to him (561.25T). He did not deny that the person who got out of the car said: “I got shit, I didn’t get my money’s worth. I fell asleep on it.” Rather, he repeated that he did not know if it was the Deceased “or not” (562.6T). He then went on to say that he did not see a small gold car, but that Sandy Davis and Anthony Dunn-Duval had told him about it later (562.25T).

85. Despite counsel’s challenges, he was going to stick with the statement of 24 April 2023. He denied he had told Police on 2 March 2023 that when he heard of the death of the Deceased, “It freaked me out as I had only not long seen him” (565.5T). In re-examination, he said that he had cycled down M Street to near Sandy Davis’s house that night “once or twice. Yeah, once - no, once. Yeah, once.” (565.31T). In re-examination, he denied the account he had given on 2 March 2023 (565.5T).

86. I am satisfied that the account given by Lucas Dumas to the Police on 2 March 2023 is true. I am equally satisfied that the evidence he gave in court resiling from that statement was false. I am unable to say why he would have given a false account. I do not accept that he made up the account of 2 March 2023 because he was on drugs or that the consumption of drugs caused him to misperceive the events so completely. Perhaps he did not know the Deceased well enough to positively identify him. It is possible having heard of the death of the Deceased that he put two and two together in that regard.

87. On the other hand, his account of 2 March 2023 is supported by other evidence. In particular, I am satisfied that Lucas Dumas is the lone cyclist shown arriving at about the same time as the Deceased in the vicinity of 74 and 76 M Street. It may be that Lucas Dumas did not enter 74 M Street but remained outside 76 M Street and out of view of the CCTV camera. His account of the angry person complaining about the quality of drugs is consistent with the body of evidence about the Deceased’s attitude that night which I have summarised and for which I have a preference. It was clear to me that initially his main gripe with the cross-examination was he could not positively identify the Deceased but otherwise he adhered to the account he had given to Police of the words he attributed to the person getting out of the car. As I have said, I am unable to say why he backpedalled so furiously from there. But I do not accept his recantation.

88. I turn now to the evidence or Mr Prichard Vale. Pritchard Vale gave a quite convoluted account of his relationship with the Deceased, but from his description, they seemed to have been second cousins. Pritchard Vale described the relationship as that of “brother cousin” (33.48T). He said that the Vale family was “really tight” (34.2T). He also described the Accused as his “brother cousin” (34.19T). He said he was close to both of them. He said the relationship between the Accused and the Deceased was “very close” (34.41T). He confirmed that they had been raised together as “brothers” (34.44T). Mr Pritchard Vale said he saw the Deceased “every second day” around this time (35.24T).

89. His evidence was that he accompanied the Deceased to visit the Accused during the morning of 1 March 2023 at his residence at 95 M Street. Ms Priscilla Archibald, the mother of Ms Veronica Holten, was home. She opened the door and let them in. They met the Accused in his bedroom. Pritchard Vale said that he had not seen the Accused for years and so there was “meeting and greeting” (41.36T). When asked directly about any conversation in relation to drugs, Mr Pritchard Vale said, “I don’t know that” (42.35T). He said there was something in the Accused’s hand and chucked on the bed. The Deceased handed over some money, which was put on the bed. Mr Pritchard Vale said nothing was given in return (43.5T). When asked again about drugs, Pritchard Vale said, “There was no drug talk” (45.20T). Pritchard Vale said the Deceased was not taking any drugs and had not since he left the rehabilitation centre (45.35T).

90. During cross-examination under s 38 of the Evidence Act, he agreed that the Accused said to the Deceased, “I’ll have a couple of dollars for you, as soon as I get it, I’ll come up to Pop’s”, a reference to Harry Vale (46.41T). He denied that the Deceased said, “You may as well give me one” referring to drugs and he denied he knew the Deceased was talking about drugs (46.50-47.10T). He denied that the Accused said words to the effect that he could not because he had to sell what he had on hand to get resupplied. Pritchard Vale denied any such conversation occurred (47.34T).

91. In cross-examination by counsel for the Accused, Pritchard Vale agreed that the Deceased had said he had to pick something up from the Accused but denied it was drugs. He said, “it could’ve been anything” (50.45-51.5T). He denied that he had told Police that he was absent from the Accused’s bedroom at some point to use the toilet (51.50-52.2T). He denied his signature was on the Police statement (53.4T) but agreed that he was trying to tell Police the truth (52.20T). He was adamant that he did not want drugs and that there was no conversation about drugs while he was in that room (55.5-10T). He denied that the Accused had handed a quantity of drugs to him. He said, “No way in China” (56.33T). He denied receiving 0.1 of a gram of ice (57.23T).

92. In his evidence, to which I will return to later in more detail, the Accused confirms that the Deceased and Pritchard Vale visited him on 1 March 2023. He said that Pritchard Vale said that they, being himself and the Deceased “wanted to score”. He clarified later that Pritchard Vale wanted to “score”. He said someone put money on the bed and he gave the drugs to Mr Pritchard Vale and not the Deceased (892.43T). He could not remember whether he received $50.00 or $100.00, but he supplied a point of ice. There was no other conversation and no arrangement to meet the Deceased later (892.35-893.10T).

93. I reject Pritchard Vale’s evidence. I have no doubt that the purpose of the visit was to “score” and that drugs were supplied. It seems to me to be no more than a point of special pleading whether the drugs were handed to the Deceased or Pritchard Vale. Pritchard Vale’s evidence that the Deceased was abstaining from the use of drugs at that time is inconsistent with the great body of evidence led in the case including the statement made by Ms Jessica Howard to investigating Police, which I accept as accurate.

94. In cross-examination, the Accused denied having sold drugs to the Deceased on 1 March 2023. He said he sold them to Pritchard Vale (925.45T). He also denied saying to the Deceased on that occasion that “I’ll have a couple of dollars for you” later or that the Deceased asked for some drugs (935.35T). He appeared to deny ever having sold drugs to the Deceased at any time (936.1T). He strongly and repeatedly denied owing the Deceased money on 1 March 2023 in relation to drugs (937.30T).

95. I am certainly satisfied that the Deceased had a grievance against the Accused and had a strong conviction that the Accused owed him money. The difference between the Crown and the Defence on this issue is whether the grievance between them had arisen prior to 1 March 2023 or related to drugs supplied by the Accused on 1 March 2023 with which the Deceased was dissatisfied. While the distinction between the two positions in itself probably does not matter much for the purpose of the case, it is a matter capable of reflecting on the credit of the Accused. By that, I am not referring to engaging in the sale of prohibited drugs reflecting poorly on the character of a person. I am simply referring to the question of whether the detail of the Accused’s account should be believed, and the effect that question might have upon the acceptability of his evidence about important matters. However, I will leave that question to one side for now. It is enough for me to say that the evidence, leaving aside the evidence of the Accused, well and truly establishes a grievance about which the Deceased had grown voluble and concerning which he had made up his mind to demand satisfaction. I am satisfied that if he could not recoup the debt he believed he was owed he would take it out of the Accused’s hide, as the saying goes.

96. On the Accused’s account however, there is no basis in fact for any grievance on the part of the Deceased which makes the conduct of the Deceased according to the Accused’s account difficult to rationalise. However, I will put this to one side for the time being. The Accused certainly gave evidence that when the Deceased arrived at 74 M Street that night, “he was raving on about drugs [the Accused] sold him. He was complaining” (904.43T). The Accused was asked the following questions (904.44T):

“Q. Do you remember the words that he spoke?

A. ‘I want my fucking money back. What you give me was shit, I went to sleep on it’.

Q. What did you say?

A. ‘I want my drugs back’. He said he had it. I said ‘it’s not a shop, there’s not a refund’.”

Although later the Accused said (905.23T):

“Q. How long did that conversation go on for?

A. He just kept arguing the point that he wanted his money back and I said, ‘I haven’t got your fucking money. What money are you talking about?’. I don’t know what money he was talking about.”

This latter statement suggests a misunderstanding rather the existence of an actual foundation for a grievance which had greatly agitated the thinking of the Deceased.

The Evidence of the Accused

97. Before going on to consider what can be made from the evidence of Veronica Holten, Leearna Davis, Lesley Dean Davis and Cyril Davis Jr, all of whom, as I have said, appear to have been eyewitnesses to the stabbing or its immediate aftermath, I think it appropriate to at this stage to consider the evidence of the Accused. His account is not central to the Crown case. As I have explained, even were I of the view that his evidence, to the extent to which it is exculpatory, should be rejected, it remains for the Crown to persuade me beyond reasonable doubt of his guilt by evidence I do accept. I repeat, the fact that the Accused has given evidence in no way changes the burden or standard of proof.

98. The Accused was aged 47 years on 1 March 2023 and is 51 now. I interpolate that as at the date of his death, the Deceased was 39 years of age. As at 1 March 2023, the Accused resided at 95 M Street. From the evidence of Pritchard Vale to the extent to which it was reliable, that address had been the house of the mother of the Accused. As at 1 March 2023, Ms Veronica Holten, her two teenage sons and her mother were residing with the Accused at that address. He described Ms Holten as “like a daughter to me”. Leearna Davis may also have resided there from time-to-time. She certainly seemed to be spending extended periods there. She, too, was like a daughter to the Accused (883.37T). He acknowledged that the Deceased was his cousin and that he had known the Deceased all of his life. He said that he did not see him all that often but they had a good relationship. He had no personal issue or grievance with the Deceased. He said their relations were “all good” (884.5T).

99. There is an issue as to why the Accused was at 74 M Street after dark on 1 March 2023. Once again, this issue merely goes to the credibility of the Accused’s account. Why he was there proves nothing about the disputed elements of the offence of murder including whether the Crown are able to negative both elements of self-defence beyond reasonable doubt. The simple, indisputable fact is, he was there, and for reasons which are not explained in the evidence, the Deceased knew where to find him.

100. I have made two mentions of the credit of the Accused’s account. It is important that I yet again reiterate that the consideration that the Accused has chosen to give evidence in no way alters the onus and standard of proof. Moreover, as I have already said, given that he chose to give evidence, the Accused’s evidence falls to be determined by the same considerations as the evidence of each other civilian witness. In common with all witnesses, I am entitled to be selective about the evidence I find reliable. It is not a whole or a nothing process. I am entitled to accept part and reject other parts of the evidence of any witness, including that of the Accused.

101. The Accused’s account of 1 March 2023 is that after the Deceased and Pritchard Vale left, he spent the day doing some housework at his home and then drinking and listening to music. He was drinking bourbon mixed with cola. He estimated that he consumed 12 of these drinks by the time he arrived at 74 M Street. He said he was intoxicated. In cross-examination he also claimed to have consumed some quantity of ice. According to Exhibit A, another excerpt from the CCTV footage, he arrived at 74 M Street at 9:38pm (by the clock) in the company of Leearna Davis. They were dropped off there by Veronica Holten who then drove away. The Accused said that earlier they had attended the local bottle shop to replenish his supply of alcohol before going to the premises and he continued to drink while he was there. There was an issue about the opening hours of the bottle shop and the Accused contented himself by saying that it was open when he went there. Nothing further turns on this.

102. The purpose of the visit was to commence the clean-up of the premises in preparation for Ms Holten and her family resuming residence there. She was the tenant of the premises, and had been residing there for some time, more recently with Lesley Dean Davis, with whom she had formed a domestic relationship. She had left the premises to live with the Accused about 2 weeks before 1 March 2023, because of allegations of domestic violence in her relationship, which are unnecessary for me to inquire into. Part of those allegations was a claim that Lesley Dean Davis had forced his way into the premises through the front door, at a time when he was excluded by Ms Holten. Ms Holten claimed the lock was damaged and ineffective due to Lesley Dean Davis’ forced entry, and she moved out because she no longer felt safe. The Accused accepted this explanation and thereafter Ms Holten moved in with him. I record here that the Crown challenged the veracity of this narrative about the lock.

103. The Accused said that there had been a discussion with Ms Holten about undertaking the cleaning on the morning of 1 March 2023: 887.10T. The Accused said that he frequently drove past 74 M Street and he was aware that other people were gaining access to the premises and staying there: 886.15T. Evidently, it needed to be cleaned, and he had noticed that there was rubbish in the yard that needed to be removed.

104. The Crown challenged this account as being implausible. It was put that it was implausible that an intoxicated man would attend the premises of another, late in the evening, after he had been drinking all day, to undertake domestic cleaning. I accept that it is an unusual claim. The implication in the Crown’s challenge is that the Accused must have been there for some other (probably unlawful) purpose. It is curious that Veronica Holten merely dropped off the Accused and Leearna Davis, rather than staying to help the process of cleaning the house which was intending to move back into. It was put to the Accused that he was just making that explanation up, which he denied: 943.15T. The Crown, at some length, challenged the claim that the front door lock was broken: 943.20T ff. The Accused was cross-examined by reference to Exhibit 19, which is a selection of photographs of the interior of 74 M Street taken on 15 March 2023, during the execution of a warrant. I interpolate that it seems to have taken investigating Police some time to realise 74 M Street was a place of interest, given that the Deceased died a short distance away in another street. Although the Accused maintained that the lock was not working; he eventually agreed that he could not explain it by reference to the photographs: 947.12T. When pressed to explain what was wrong with the door lock, by reference to the photographs, he said “Nothing by the looks of it”. It was put to him that he had made up the broken door lock to explain a cleaning visit at 10 pm: 952.20T. With respect, this topic was pursued somewhat relentlessly.

105. I consider that a cleaning expedition at 10 pm is somewhat curious. To the extent to which the implication is the Accused was there for no good purpose, there is no evidence of that. In the end, the Accused said he did not make the decision about when the cleaning was to be done, he just went along with it: 965.31T. He added, by way of explanation, “we [were] flying on ice”: 965.43T. I interpolate that when asked about cleaning the premises, Veronica Holten said “I don’t remember” (583.23-27T). Rejection of the cleaning explanation does not tend to prove any substantial fact in issue. Evidence I do not accept proves nothing. Even if there was evidence that the Accused had gone to 74 M Street to sell drugs, which is not a proposition, quite properly, that the Crown was in a position to put assertively to him, it would not serve to prove anything about the Accused’s state of mind when he stabbed the Deceased, including whether he believed that was necessary to defend himself in the circumstances as he perceived him. As I make clear, when asked the Accused denied selling drugs from 74 M Street and the Crown is not in a position to contradict that denial.

106. I turn then to the Accused’s account of the fatal confrontation with the Deceased. The Accused said that the Deceased came to 74 M Street once and once only on 1 March 2023. If this is correct, this must have been at about 10:40 pm on the CCTV footage clock. The Accused was not expecting him. He had not seen him arrive but first saw the Deceased walking down the driveway when he was sitting out on the verandah of 74 M Street, waiting for the floor he had just mopped to dry.

107. The Accused said that when he saw the Deceased, he jumped up. The Deceased was raving on about drugs that he said the Accused had sold him. I have referred to this evidence already and will not repeat it here. The Accused was wearing boxer shorts only, and the Deceased was wearing shorts and a singlet. During the argument about the drugs, the Accused said the Deceased got aggressive, raising his voice and swearing. The Deceased said, “we will have a go then”, and took the first swing. The Accused did not see any knife in the possession of the Deceased at this time, and the Accused denied that he had a knife with him.

108. The confrontation at this stage was purely an unarmed one. The Accused emphasised that the Deceased was younger, bigger and stronger. He was certainly younger, but they were about the same height, although the Deceased was much heavier at 110 kg: Exhibit 21. The Accused said he weighed 75 kg at that time. He said that the Deceased came at him swearing, shaping up and they then traded blows. He said that the Deceased made contact with his head and chest, and he thought the Deceased would “crush [his] skull”. During the struggle, they were grabbing at each other, and the Deceased tried to kick the Accused. By this time, the fight had moved out onto the driveway, and, eventually, perhaps, onto the roadway, as depicted in Exhibit 10, and as agreed in Exhibit 14.

109. After the Deceased tried to kick him, “that’s when the knife hit the concrete”. The Accused said that he heard the sound of the something hitting the concrete, he looked down and saw the knife. The Deceased tried to pick it up. The Accused said he did not know where the knife came from and that he could not describe it. He was able to push the Deceased back and pick up the knife himself. He stated his belief that had he not recovered the knife, he would be dead now. The Deceased was angry and stressing out. The Accused picked the knife up because he did not want the Deceased to get it. They continued to scuffle and the Deceased was trying to get the knife from the Accused’s hand. He was asked how he was feeling at that time, and he said, “I am pretty pissed off”: 909.24T. Much was made of that response in cross-examination. He also said he believed that if the deceased obtained possession of the knife, “My wife would have been burying me”: 909.31T.

110. He said that he couldn’t go anywhere or turn around and run. The Accused said “I must have stabbed him in the fight”: 910.4T. He gave the following evidence (910.5-19T):

“Q. Why did you stab him?

A. Because I believed that if he had the knife, I’d have been dead.

Q. When you stabbed him, did you mean to stab him?

A. No. It was … in the fight.

Q. When you stabbed him, did you aim for any part of his body?

A. No. It was in the struggle, and I am getting away from him, trying to get away from him.

Q. How many times did you stab him?

A. I don’t know. I can’t remember. I didn’t even know I stabbed him.

Q. What happened after you stabbed him?

A. He said, ‘that’s enough, bud’.”

111. The stabbing brought the fight to an end. The Deceased walked away, got into his car, and drove away. I have already dealt with the circumstances of his death. At this point, as I have said, Veronica Holten was pulling up in her car, and Leearna Davis, who had been there while the fight was occurring, shepherded the Accused into the car, who then said to Veronica Holten “Take me out to Burnt Bridge please”: 910.40T. He was going to his brother’s place there. The Accused was unable to say what happened to the knife: 911.33T. He said at this time “I was scared, frightened”: 910.44T. The fact that the Deceased was able to drive away, notwithstanding his mortal wound, suggests that those present at the scene would have been unaware of the seriousness of his injury.

112. In addition to the credit issues to which I have already referred, the Accused was cross-examined by the Crown to suggest that his inability to nominate the price of the drugs he supplied in the morning of 1 March 2023 was not worthy of acceptance.

113. When shown the portion of the CCTV footage during which the person that I found to be Lucas Dumas arrived on his bike, the Accused agreed that from what is shown on the CCTV, that figure appeared to “be going in towards 74 M Street” but he was unable to identify who he was: 998.5-15T. When shown the footage again, he could not say whether the person was heading for 74 M Street: 999.49T. He did not see that person on the night. When asked whether that was someone he had sold drugs to at 74 M Street, he said, “I don’t know” and then denied ever selling anyone drugs at that address: 1000.20-33T.

114. He wasn’t able to say whether the person in the car which pulled up in front of 74 M Street at 10:21 pm was the Deceased: 1001.10-25T. He didn’t see the Deceased at this time. Accepting that the Deceased had been in the vicinity for about 13 minutes, according to the CCTV footage, he had been unaware of that fact until the later confrontation: 1003.48T. The Accused denied that the Deceased had come to him to complain about drugs soon after he arrived while Lucas Dumas was in the vicinity and then left: 1007.30-40T.

115. The Accused did agree that when he first saw the Deceased on the evening of 1 March 2023, he was complaining about drugs supplied and that the fight started very quickly: 1015.25-30T. During cross-examination, the Accused said when the knife fell, “I pushed him back, I grabbed it and I stabbed him”: 1021.25T. This is of course somewhat different from his account in chief, where he said that he didn’t realise he had stabbed the Deceased. The Accused explained the difference by saying “it was in a scuffle”: 1024.5T.

116. The following exchanged took place (at 1023.4-8T):

“Q. [The Deceased] didn’t drop the knife. You had it with you, didn’t you?

A. No, I never had the knife with me.

Q. You’ve made this story up about him dropping the knife, haven’t you?

A. No, I never.”

117. He explained saying that he was “pissed off” by adding “I was frightened, I had to defend myself and I had to do what I had to do and I couldn’t retreat”: 1024.37T. He was challenged about saying that he was frightened because he had won a State title for boxing when he was a boy: 1025.3T. It was put to him that he didn’t stab the Deceased because he was frightened, but because “you were pretty pissed off with him”. He did not agree. The Accused was insistent that he stabbed the Deceased to defend himself: 1026.15T. The cross-examiner pointed out, by his questions, that the Accused now had the knife and the Deceased did not. He asked, “Why did you feel it was necessary to stab him?”. The Accused said “I had to defend myself because I knew if he had got it, he would have stabbed me”: 1028.7T. He was challenged about why he followed the Deceased out when the Deceased was moving towards the street, and the Accused said, “the fight was still continuing”. He denied being angry or wanting to hurt the Deceased: 1029.1-22T. It was put to him that this was different to his evidence-in-chief when he said, “I couldn’t retreat”. The Accused said that he did not feel he could turn his back on the Deceased: 1029.45T.

118. The Accused was unable to identify other people depicted in the CCTV footage around the time of the stabbing. It was again put to the Accused that the Deceased had come to 74 M Street just after he had pulled up. He denied that he obtained the knife from the kitchen; denied that he had a knife with him when he went to 74 M Street; and denied that he had the knife all the time: 1045.18-27T.

119. In re-examination, the Accused clarified that he won the boxing championship when he was 11 or 12 years old. As at 1 March 2023, he suffered diabetes, and had not trained regularly for 20 years: 1046.15-43T.

Evidence of Other Eyewitnesses

120. I am satisfied that each of Leearna Davis, Veronica Holten, Lesley Dean Davis and Cyril Davis Jr were in a position to have seen the Accused stab the Deceased, or the immediate aftermath of the altercation. In their evidence, each of them denied having any recollection of what occurred. Given the dire nature of the occurrence, and the fact that these events are what most people would regard as being difficult to forget, I find it difficult to accept that they were sincere in their denials or were making a real effort to recall what they had seen, heard or otherwise perceived. Perhaps Cyril Davis Jr was an exception to this. It seemed to me that he was not trying to avoid the questions, he simply had difficulty recalling details.

121. Although I have referred to these persons as eyewitnesses, the event which one would expect them to recall is the stabbing of the Deceased by the Accused, about which there is no issue in this trial. Only the Accused is in a position to tell the whole story about what occurred between him and the Deceased on the evening of 1 March 2023.

122. As I have said, neither Veronica Holten nor Leearna Davis chose to speak to Police. Neither of them, especially Leearna Davis, seemed to be doing their best to give evidence about what they seemed to be in a position to know. Leearna Davis really made no effort whatsoever, pleading the effects of drug abuse on her powers of recall. Veronica Holten answered a large number of questions with “I don’t remember”, and I do not think any coherent account emerged from her evidence.

123. Cyril Davis Jr was inside 76 M Street when the stabbing occurred, but he recognised Leearna Davis’s voice and went outside. His evidence is best recounted from the extract of his Police statement of 26 April 2023, tendered as Exhibit 26. I accept, however, that he is functionally illiterate, and his signature may not be very significant. He gave evidence that persuaded me that his account in Exhibit 26 was accurate. While in his bedroom he heard Leearna Davis “screaming and yelling”. He couldn’t hear everything, but he heard her calling out to the Accused “come this way”. His recognition of her voice was supported by evidence that he spoke to Leearna Davis virtually every day. He went outside and his mother Sandy Davis, stepfather Anthony Dunn-Duval and cousin, Brendan ‘Solo’ Smith were there. He saw Leearna Davis “rushing” the Accused into the vehicle which driven by Veronica Holten. The Accused was wearing boxer shorts and no shirt nor shoes, he had his hands by his side, with both hands closed. He thought the Accused looked “in a rage and stressed out”. He makes no mention of any knife and certainly does not say the Accused was holding a knife at that time. Leearna Davis said to the Accused “Hurry up and go, get into the car”.

124. I accept that is an accurate account of what Cyril Davis Jr saw and heard. However, I observe that so much could be inferred from other evidence, and he was in no position to cast any light upon why the stabbing happened, especially in relation to the question of self-defence.

125. Lesley Dean Davis, as I have said, arrived on the scene just as the Deceased drove away and Veronica Holten was starting to drive away. He attended by bicycle and in the company of Lucas Dumas. He was prepared to say in his evidence that he had been alerted to something happening in a phone call from Veronica Holten, his sometime partner. Lesley Dean Davis is an interesting witness, because as I have explained, he believed himself to be a suspect at one stage, which was an entirely erroneous belief. It is to be recalled that because of his concern, his mother carried out her own investigation, including the clandestine recording of Sandy Davis’s account. I am satisfied that Lesley Dean Davis had a strong motive to tell the Police all that he knew when he made a statement to them on 14 April 2023 for the purpose of clearing his name. For that reason, I am satisfied that his account to Police, segments of which were admitted as Exhibit 27, is accurate and reliable.

126. It is strange then that he was a difficult witness, presenting as very unwilling to give a clear account. Given his circumstances, he would have been the last person I would have expected to be a reluctant witness, but he was. In general terms, his evidence settled into a pattern, when cross-examined by the Crown Prosecutor under s 38 of the Evidence Act and by counsel for the Accused, of admitting that certain propositions were recorded in the Police statement, but he denied he said those things to the Police or that they were accurate.

127. From his Police statement, I am satisfied that as Veronica Holten approached the scene of the fight outside of 74 M Street, she was on the phone to Lesley Dean Davis. Although he now denies it, she said, “David and Conrad are fighting down here out the front of home get the fuck down here”. He reacted immediately, yelling to his friend Lucas Dumas, “We have to go”. They both headed for 74 M Street by bicycle. As he approached 74 M Street, he saw Harry Vale’s car drive off. This was the car the Deceased was driving. He saw it turn into the nearby street where the Deceased died. He did not recognise the car that Veronica Holten was driving, and he kept riding east along M Street.

128. When he arrived at 74 M Street, he saw Leearna Davis, who told him “David and Conrad had a fight”. Lesley Dean Davis asked “What, did he drop him?” and Leearna Davis said “no he got him straight up the ribs”. Leearna Davis also said “he got him… with a knife”. Lesley Dean Davis was more worried about Veronica Holten. He went off in search of her. He came across Sandy Davis who said to him “Conrad stabbed Goof.” Goof is the nickname of the Deceased.

129. He eventually found Veronica Holten, who seemed very scared. She told him, “I pulled up out the front of the house after I had seen the fight. I drove back and said, ‘what the fuck is going on?’”. She said she took the Accused to Burnt Bridge. Lesley Dean Davis asked “what was he like? Was he talking?”, and Veronica Holten said, “No he was quiet”. As I have said, I accept this account, and otherwise reject Lesley Dean Davis’s evidence which he gave in court.

Part 6 – Verdict

130. I turn first to the elements of murder. While it is not in issue, I am satisfied beyond reasonable doubt that by his voluntary act of stabbing the Deceased, the Accused caused his death. As I have said from the outset of this judgment, the real issues relate to the mental element of the offence and self-defence. Most of the evidence of the witnesses does not throw much light on these issues. At one level, the fact that the Accused stabbed the Deceased twice with a knife provides some evidence of the specific, actual intent to inflict really serious bodily harm upon the Deceased, which constitutes the requisite mental element for the crime of murder. But as fought out in the trial, the issue is much more complicated than that.

131. I have already said that I am satisfied that the Deceased had a grievance against the Accused over the supply of drugs which he wished to ventilate. He regarded it as a debt he was owed, and he wished to be repaid that debt or obtain satisfaction in some other way. The Crown case is that the grievance was already in existence before 1 March 2023. This makes sense in some ways, because it seems improbable that the Deceased would wish to fight the Accused over his disappointment about the small amount supplied earlier that day. But logic is not a sure guide to events like this.

132. If Pritchard Vale’s account to Police is to be believed, the Accused acknowledged a debt to the Deceased when they met on the morning of 1 March 2023. He acknowledged it in terms and said that he would repay him later that day. However, it is difficult to accept the evidence of Pritchard Vale in court given that, in the witness box, contrary to what he told Police, he denied that there was any talk of drugs at 95 M Street. His Police statement of 28 March 2023, extracts of which are Exhibit 33, is in my judgment a surer guide. As I have said, it contains an account of the Accused acknowledging the debt saying “I’ll have a couple of dollars for you. As soon as I get it, I’ll come up to Pop’s”. The Accused also had what appeared to be three ‘eight-balls’ of ice, that he was not prepared to break up to give some to the Deceased.

133. The Accused did not accept this account as an accurate reflection of what occurred that morning. He said Pritchard Vale wanted to ‘score’ and he supplied him with a small amount for a price about which he could not be precise. I confess that neither Pritchard Vale’s evidence in court nor the Accused’s account seems particularly probable. What is clear is that from all of the evidence about this meeting is that nothing was supplied to the Deceased on that day. On the evidence, the Deceased’s grievance, which I am satisfied has been established, must have its cause at an earlier point in time, which makes it likely that the Accused did give him an assurance of having some money for him soon. I accept this part of the Crown’s argument. I am satisfied that the Deceased was prepared to accept the Accused’s assurance and went away empty handed from the meeting in the morning of 1 March 2023. It seems to follow from this that when the Deceased complained of poor-quality drugs being supplied by the Accused, he was referring to a previous supply, at some earlier point in time, which the evidence does not disclose.

134. It seems to me likely that the Deceased’s complaints to his sister, Sandy Vale, and also to Sandy Davis, related to that earlier supply, and he expressed his frustration about the delay in repayment. Although his father was not called to give evidence, I think it likely that he was chasing the Deceased for the rent, as Sandy Vale and April Vale said. I am prepared to accept that much of April Vale’s evidence.

135. It is obvious from the evidence of the Accused, in terms of how he spent his day on 1 March 2023, that he did not go to Harry Vale’s home to hand over the “couple of dollars” as he said he would. Doubtless, when nothing had happened well into the evening, the Deceased decided to go and find the Accused and have it out with him.

136. I interpolate that these findings mean that I do not accept what the Accused said about what happened in the morning of 1 March 2023, nor do I accept his evidence that he had never, at any time, supplied drugs to the Deceased. Indeed, this last proposition was, to my mind, dashed by his response to the Deceased’s challenge on the evening of 1 March 2023, whenever it was that he saw him, that “It’s not a shop, there are no refunds”. This clearly, to my mind, constitutes an admission of a previous supply. Indeed, the only rational explanation for that response is that the Accused and the Deceased had been parties to a drug transaction at some time. Shops only refund in respect of defective goods that they have actually supplied, and it just seems preposterous that the Deceased would bail the Accused up about defective drugs which had never been supplied by him. That matter seems so unlikely that I reject the Accused’s account in that regard.

137. Although Lucas Dumas sought to distance himself as far he possibility could from the oral account given to Police on 2 March 2023, I am satisfied that it is substantially true, and that his evidence in court is more likely to be false. Allowing for a possible degree of exaggeration in his use of the phrase “he was going off his head”, I accept that the Deceased was angry when he arrived at 74 M Street at about 10:21pm. He was also volubly complaining about the quality of drugs the Accused had previously supplied him. In these circumstances, it seems to me unlikely that the Deceased would not have confronted the Accused immediately with his grievance as soon as he arrived there. To my mind, it seems unlikely that he would have delayed the confrontation for 18 minutes milling around with the residents of 76 M Street. I am of the view that the CCTV footage shows him walking into the yard of 74 M Street at around the time that Lucas Dumas was there.

138. There is no evidence that Lucas Dumas was there to buy drugs, and there is no evidence that the Accused was selling drugs from that address at that time. However, nor am I satisfied that the Accused and Leearna Davis were there to clean in the absence of Veronica Holten, or at all. To my mind, it seems improbable that the Accused in his intoxicated state, together with Leearna Davis, even if they were also ‘flying’ on ice, took it upon themselves at about 9:30pm to go and clean the house, which apparently had been lying vacant, more or less, for 2 weeks at that stage. Whatever they were doing there, I do not regard it as reasonably possible that they were cleaning the house.

139. I will avoid speculation as to precisely what occurred, but I am of the view that the Deceased confronted the Accused twice, the first time immediately upon arriving in the vicinity. He may not have challenged the Accused to a fight at that time, given the presence of Lucas Dumas, but he was clearly still angry about the Accused’s failure to repay the money promised when he was milling in front of 76 M Street with Sandy Davis and Anthony Dunn-Duval. I accept that he complained to Sandy Davis and told her why he was unhappy with the Accused.

140. To be clear, I do not accept the Accused’s account that the Deceased attended 74 M Street once only that evening. If I am correct in these conclusions, then, as the Crown submit, the Accused would have had the opportunity to arm himself with a knife, if he so chose, from the kitchen of the premises, lest the Deceased return in an angrier state of mind. I am satisfied that when the Deceased re-entered the front yard of 74 M Street at about 10:40 pm, by the CCTV clock, he did so for the purpose of renewing his confrontation with the Accused. He clearly wanted satisfaction of the debt in some form or other. About three minutes after he re-entered the curtilage of 74 M Street, Leearna Davis left that address and went to No 76, as depicted on the CCTV footage, and as Anthony Dunn-Duval’s account reluctantly suggests. Given her almost total failure of recall in evidence, it is speculative to postulate whether she was looking for someone from No 76 to calm things down at No 74, where I infer, the confrontation was worsening.

141. I accept that the Deceased was the initial aggressor. He was the man with the grievance, and he felt he waited long enough for repayment of what was due to him. I accept that he had an advantage over the Accused in that he was 10 years younger and had very significantly more body mass. These were things known to the Accused, and a man may take precautions against another if violence seems imminent. There may well have been an exchange of blows out of view of the CCTV camera, although as the Crown have pointed out, there was no evidence of blunt force trauma on the body of the Deceased at post-mortem, either on his hands from blows he had inflicted, or elsewhere on his person from blows he had received.

142. What seems tolerably clear from the CCTV footage is that neither the Accused nor the Deceased is seen to be armed with a knife when they emerge one after another into the view of the camera. As I have already observed, the Deceased is not really seen to be in full retreat in as much as he turns, kicks and holds his ground for a moment, before continuing out along the driveway followed by the Accused. At that point in time, the Accused had the opportunity to withdraw from the fight, either by standing his ground as the Deceased walked away, or by more actively withdrawing backwards. It seems clear that the Deceased was heading towards his car without his money, and the Accused chose to follow. For all of its limitations, the scene depicted on the CCTV footage is not one of two men locked in a grappling, hand-to-hand combat from which neither can disengage. There is space between them.

143. If the Deceased was armed with a knife somewhere upon his person, which he had not yet used, one would think now would have been the time to brandish it to ward off the Accused who was following him. Even when they re-engaged in close contact, behind the vehicle parked on the driveway of 76 M Street, out of view of the camera, on the Accused’s account, the Deceased did not produce the knife, rather, it accidently fell from his person. It follows that at no time during this violent struggle did the Deceased actually arm himself with the knife, which was said by the Accused to be in the Deceased’s possession.

144. Accepting for a moment that the Accused’s account of the falling knife is reasonably possibly true, it is a knife that the Deceased had at no time sought to use against the Accused. The only one of them who ever had the knife in his hand for the purpose of offensive action, even on the account of the Accused, is the Accused himself. The only other person who mentions a knife is Leearna Davis, in the account contained in Lesley Dean Davis’s Police statement. Lesley Dean Davis disavows that statement but having exercised the caution due when accepting hearsay evidence, I accept it as an accurate account for the reasons I have explained. Leearna Davis’s account is that the Accused stabbed the Deceased in the ribs. That is something that she was in a position to see, having regard to all the circumstances including the CCTV footage. However, she does not say anything about where the knife came from, and her evidence can be taken no further.

145. The account of Sandy Davis to Lesley Christine Davis likewise goes no further than saying the Accused stabbed the Deceased. This much at trial we already knew. She does not give any account in detail of when and where she first saw the knife. The Crown have submitted that none of the lay witnesses, to the extent to which their evidence is reliable, give a version of events like that of the Accused of the knife falling to the ground from the person of the Deceased. However, with respect, that argument inverts the onus of proof. The Accused, as I have said so frequently, bears no onus, and I will put that consideration to one side.

146. Accepting that the account given by the Accused of how the knife came into his possession may be one that is true as a reasonable possibility, his use of it was, at best from his point of view, a pre-emptive defensive strike. The knife was never used against him. There are a number of aspects of the Accused’s account which are unsatisfactory. The first is, that when asked about his state of mind when he stabbed the Deceased, he spontaneously, and without qualification said he was “pretty pissed off”. Although he later tried to qualify that expression by saying a number of different things, which I have set out above, his original spontaneous statement is not really the language of self-defence. However, the actual specific intent for murder is not inconsistent with self-defence. A person may actually intend to kill or inflict really serious injury on another because he believes that is necessary to defend himself in the circumstances as he perceives them. Perhaps the Accused’s spontaneous statement can be seen in that light.

147. Another unsatisfactory aspect of his account in chief is having secured possession of the knife, he says he did not realise he had stabbed the Deceased until it had happened. In truth he resiled from that proposition in examination-in-chief and he certainly walked back from it further in cross-examination. His initial evidence was less than a fully frank account by him of what happened.

148. A third aspect is his failure to admit two stab wounds, one of which was the ‘defensive’ wound to the upper right arm, which passed through the arm and into the right side of the body of the Deceased, the non-fatal wound. Objectively, both acts must have involved, at the very least, a deliberate thrust to the body of the Deceased. The expert forensic pathological evidence is that the fatal wound would have required moderate to severe force. I am not of the view that wound could have been inflicted accidentally in the struggle.

149. Moreover, the three minor incised wounds on the posterior aspect of the left upper arm are suggestive of glancing blows inflicted by use of a knife. The combination of knife injuries is strongly suggestive of deliberate injurious intent on the part of the Accused.

150. I have not overlooked the evidence the Accused gave of his intoxication. I am satisfied that it is reasonably possible that at the time he inflicted the stab wounds on the Deceased, he was intoxicated, from the combined effect of alcohol and the prohibited drug ice. I remind myself that a person so intoxicated might act in a seriously injurious manner without turning his mind at all to the achievement of any particular purpose, or the natural consequences of his actions. This matter is relevant to the question of whether the Crown have proved the requisite intent beyond reasonable doubt and to the Accused’s perception of the circumstances.

151. Given the degree of force necessary to inflict the fatal injury, the occurrence of the non-fatal injury to the right arm when the Deceased was drawing it across his body in a protective manner, and the minor knife wounds on the left arm, I am satisfied beyond reasonable doubt that, notwithstanding his intoxication, when the Accused stabbed the Deceased, he did so with the actual specific intent of inflicting really serious bodily injury upon him. Moreover, the statements by the Accused that if he allowed the Deceased to regain possession of the knife, he feared that the Deceased would have killed him, is consistent with what as I have described as the pre-emptive strike to inflict really serious injury. Importantly, these statements indicate that he had indeed turned his mind to the consequences of his actions.

152. I turn now to the question of self-defence. The findings I have made so far, as I previously explained, do not exclude the reasonable possibility of the legal justification of self-defence applying. The first question is whether the Crown have excluded the reasonable possibility that when the Accused stabbed the Deceased, not just fatally, but when inflicting each of the injuries, he believed that his actions were necessary to defend himself from the Deceased in the circumstances as he perceived him.

153. Clearly, the answer to this question depends upon whether what the Accused said about how he came into the possession of the knife is evidence that could reasonably possibly be true. I say this because obviously, if after the first visit to 74 M Street by the Deceased, the Accused had armed himself with this very knife to potentially use against an unarmed aggressor, the circumstances of the case significantly change. While I accept that it is possible he did so, there is no real evidence which supports that possibility other than the consideration of having the opportunity to do so. Putting oneself in the position of the Accused, having by some means seen the Deceased off the first time, it may not have occurred to him that he would return. There are many ways of looking at this issue, all of which demonstrates that we are talking about bare possibilities, rather than circumstances that arise to any level of probability or probative force. I am not of the view that those bare possibilities exclude the reasonable possibly that what the Accused says about the knife is true, even if I am not prepared to accept his evidence confidently.

154. Having come to this state of persuasion, notwithstanding the many unsatisfactory aspects of the evidence of the Accused that I have identified, bearing in mind that the Deceased was the initial aggressor and the consideration that it’s reasonably possible that the knife fell from the Deceased’s possession as the Accused said, I am not satisfised that the Crown have negatived the first limb of self-defence beyond reasonable doubt.

155. I turn then to the second limb. Have the Crown persuaded me beyond reasonable doubt that the Accused’s response to the circumstances as he perceived them was reasonable or proportionate? In this respect, I have borne in mind that while the Deceased was the initial aggressor, he was unsuccessful in overpowering the Accused with his bare hands. From the CCTV footage, he was the one who was ceding ground, although he was not in full retreat, if I can put it that way. When he moves into the cameras view and is shown to be kicking in the direction of the Accused, I infer the Accused backed off somewhat because the Deceased stepped forward and, for a time, stood his ground.

156. What is very significant is that while having a knife in his possession, and at the same time ceding ground, the Deceased did not draw the knife and use it offensively. On the account of the Accused, it fell from his person. While the Accused may have been concerned about what use the Deceased could put the knife to if he regained possession of it, at no time had the Deceased sought to use it, even while he was withdrawing in the direction of his car. There were ample opportunities for the Deceased to draw the blade on his own terms, which he did not do.

157. One has to adjudge these circumstances in the shoes of the Accused, to see those circumstances as he perceived them, bearing in mind his possible intoxication. One does not look at these matters with the benefit of hindsight. Naturally, having secured possession of the knife, the Accused could have thrown it away, out of the reach of the Deceased, or neutralised the presence of the knife in some other way. Of course, hindsight often provides a clearer picture.

158. The Accused attempted to rationalise his use of the knife by suggesting that it would have been him who was dead had the Deceased succeeded in taking the knife. I do not accept this at all. As I have said, the fight, up until the point of the knife falling on the floor, consisted entirely of punches and strikes. Even then, in circumstances where the Deceased had the knife in his possession and was retreating, he chose not to bring it to bear against the Accused. There is simply nothing to suggest that the Deceased would have suddenly decided to use the knife when he had avoided so doing at all other stages of the confrontation. The idea that the Accused stabbed the Deceased because he was “pretty pissed off” does not, to my mind, bespeak reasonableness or proportionality. It was the Accused who followed the Deceased as he was attempting to retreat, and in so doing elected to remain part of the fight. When the knife fell on the ground, the Accused took the most extreme step available and plunged it into the Deceased twice. At no stage was any prospect of really serious bodily harm on the cards until the knife fell from the Deceased, at which time the Accused used it to stab him without any attempt to use lesser force. I am satisfied that the Crown have negatived the second limb of self-defence beyond reasonable doubt.

159. For the reasons that I have explained, this means that self-defence is not a complete defence to the charge of murder. It means, as a matter of law, that the Accused is not guilty of murder, but is guilty of manslaughter, that is to say, manslaughter by excessive self-defence.

160. My verdict then is:

161. On the charge of murdering David Vale on 1 March 2023 at South Kempsey in the State of New South Wales, I find the Accused, Conrad Lardner, not guilty of murder, but guilty of manslaughter.

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