R v Rey Quintana

Onus and standard of proof

1. The accused comes before the Court clothed in the presumption of innocence. He does not have to prove anything. With one exception, the Crown bears the onus of proof and that onus never shifts to the accused. The standard of proof is beyond reasonable doubt. It is not required to prove the truthfulness and reliability of any or all of its witnesses beyond reasonable doubt. However, unless the prosecution establishes each and every one of the elements of the offence under consideration, the accused must be found not guilty. This is an extremely high standard of proof.
2. Further, the prosecution must disprove or eliminate self-defence beyond reasonable doubt. Again, this onus never shifts to the accused.
3. The exception I have referred to concerns the accused's defence of substantial impairment. If the evidence establishes the elements of the offence of murder beyond reasonable doubt, and if self-defence is disproved beyond reasonable doubt, the onus shifts to the accused to establish the defence of substantial impairment. However the onus on the accused is to a lesser standard of proof, being proof on the balance of probabilities.

Murder

1. In order for the Crown to prove that the accused is guilty of murder, it must establish beyond reasonable doubt each of the following: 1. That Thomas Halatoa died; 2. That it was a deliberate act of the accused that caused the death of Thomas Halatoa; 3. The act causing death was done with an intention to kill Mr Halatoa or inflict grievous bodily harm upon him; 4. That the act causing the death was not carried out in self-defence.
2. The accused's intention may be inferred or concluded from the circumstances in which the death of Mr Halatoa occurred and from the conduct of the accused before, at the time of, or after he did the specific act, (the stabbing), which caused the death of Mr Halatoa.
3. If the Court is not satisfied that the Crown has proved beyond reasonable doubt that the accused intended to cause grievous bodily harm to Mr Halatoa at the time he stabbed him, the Court must find the accused not guilty of murder, and turn to consider the alternative crime of manslaughter.

Self-defence

1. The law recognises the right of a person to act in self-defence from an attack or threatened attack, even to the point of killing. It is for the Crown to eliminate self-defence as an issue by proving, beyond reasonable doubt, that when the accused stabbed Mr Halatoa, he did not do so in self-defence. The Crown may do this by proving beyond reasonable doubt either: 1. That the accused did not believe at the time of the stabbing that it was necessary to do what he did in order to defend himself; or 2. That the stabbing was not a reasonable response in the circumstances as the accused perceived them to be.
2. As to whether the accused may have personally believed that his conduct was necessary to defend himself, the Court must consider the circumstances as the accused perceived them to be at the time of that conduct. The Court must take into account any extraordinary attribute of the accused which the Court is satisfied has been established by the evidence, which bears on his perception of those circumstances and which had a bearing on any belief he may have formed such as his mental illness, the consequences of any loss of consciousness or head injury, his capacity to see arising from his facial injuries and his use of methylamphetamine.
3. The matter should not be looked at with the benefit of hindsight, but in the realisation that calm reflection cannot always be expected in a situation such as the accused found himself in on this day.

Self-defence where the elements of murder have been proved by the Crown

1. If the Crown establishes beyond reasonable doubt that the accused did not believe at the time of the stabbing that it was necessary to do what he did to defend himself, then the Crown has succeeded in eliminating self-defence. If all other elements of murder have been proved beyond reasonable doubt, the Court should find the accused guilty of murder.
2. If the Court is not satisfied that the Crown has proved beyond reasonable doubt this first aspect of self-defence, the Court must find the accused not guilty of murder. The Court must then turn to the second aspect of self-defence, namely, whether the Crown has proved beyond reasonable doubt that the conduct of the accused was not a reasonable response in the circumstances as perceived by him.
3. In considering whether the response was reasonable in the circumstances as perceived by the accused, the question of reasonableness is determined by the Court. It is not a matter of whether the accused believed his conduct was reasonable.
4. The reasonableness of the accused's response is to be determined by an entirely objective assessment of the proportionality of the accused's response to the situation the accused believed he faced.
5. If the Crown proves beyond reasonable doubt that the conduct of the accused was not a reasonable response in the circumstances as perceived by him, then the Court should find the accused guilty of manslaughter.
6. If the Crown has not eliminated either aspect of self-defence, then the accused must be found not guilty of murder.

Manslaughter by unlawful and dangerous act and self-defence in that context

1. If the Court is not satisfied that the accused intended to kill Mr Halatoa or cause him grievous bodily harm, (element 3 of the charge of murder), there is an alternative verdict of manslaughter that the Court must consider. Before the Court can bring in such an alternative verdict, the Crown must establish beyond reasonable doubt, each of the following elements: 1. That it was the act of the accused in stabbing Thomas Halatoa that caused the death of Thomas Halatoa; 2. That such act was a deliberate act of the accused; and 3. That act was an unlawful and dangerous one.
2. An act is unlawful if it involves a deliberate application of force to another person without that person's consent and was not done in self-defence.
3. An act is dangerous if it is such that a reasonable person in the position of the accused would have realised that by that act, the deceased was being exposed to an appreciable risk of serious injury.
4. Where the Court is considering a count of manslaughter by unlawful and dangerous act, the Crown must eliminate self-defence as an issue by proving beyond reasonable doubt either: 1. That the accused did not believe at the time of the stabbing that it was necessary to do what he did in order to defend himself; or 2. That the stabbing was not a reasonable response in the circumstances as the accused perceived them to be.
5. If the Crown is successful in eliminating either of the limbs of self-defence beyond reasonable doubt, then the accused must be found guilty of manslaughter. If the Crown does not eliminate either aspect of self-defence, then the accused must be found not guilty.

Substantial impairment - partial defence

1. If the Crown has proved each of the elements of murder set out above, (and disproved self-defence), then the Court must consider whether the accused has proved, more probably than not, that at the time he committed the act causing death, he was suffering from a substantial impairment by abnormality of mind, and that such impairment was so substantial as to warrant his liability for murder being reduced to manslaughter.
2. The partial defence of "substantial impairment by abnormality of mind" will succeed if the accused has established more probably than not, both that: 1. At the time of the act causing death, his capacity either to: 1. understand events, or 2. judge whether his actions were right or wrong, or 3. control himself was substantially impaired by an abnormality of mind arising from an underlying condition, and 1. The impairment was so substantial as to warrant his liability for murder being reduced to manslaughter.
3. As to question (1) above, the issue is whether the accused's capacity to function in one or other of the three ways ((i)-(iii)) was substantially impaired, not whether he simply chose not to function in that way.
4. An "abnormality of mind" occurs if the accused's capacity to function in any one of the three ways mentioned so differed from that of ordinary human beings, that the reasonable person would term it abnormal.
5. An "underlying condition" is a pre-existing mental or physiological condition. It does not have to be a permanent condition. It is not enough if it is a passing condition or one that only lasts for a short time.
6. As to question (2) above, in determining whether an impairment was so substantial as to warrant liability for murder being reduced to manslaughter, this is a value judgment, applying community standards.
7. Because the onus is on the accused in respect of these matters, as an exception to the general rule that the onus of proof is on the Crown, the standard of proof is the lesser standard of "on the balance of probabilities" rather than the higher standard of "proof beyond reasonable doubt" required of the Crown.
8. I will only come to consider these matters if I conclude that the Crown has established beyond reasonable doubt each of the elements of the crime of murder, and has eliminated self-defence beyond reasonable doubt.

Right to silence/not give evidence

1. The accused has not given evidence in response to the Crown case. Although an accused person is entitled to give evidence in a criminal trial, there is no obligation upon him to do so. As I have already observed, the Crown bears the onus of satisfying me beyond reasonable doubt that the accused is guilty of the offence charged.
2. The accused bears no onus of proof in respect of any fact that is in dispute. He is presumed to be innocent until I am satisfied beyond reasonable doubt, by evidence led by the Crown, that he is guilty of the offence charged. Therefore, it follows that the accused is entitled to say nothing and make the Crown prove his guilt to the high standard required.
3. The accused's decision not to give evidence cannot be used against him in any way at all during the course of my deliberations. That decision cannot be used by me as amounting to an admission of guilt. I must not draw any inference or reach any conclusion based upon the fact that the accused decided not to give evidence. I cannot use that fact to fill any gaps that I might think exist in the evidence tendered by the Crown. It cannot be used in any way as strengthening the Crown case, or in assisting the Crown to prove its case beyond reasonable doubt.
4. I must not speculate about what might have been said in evidence if the accused had given evidence.

AVL evidence

1. Some witnesses gave evidence and were cross-examined by audio-visual link ("AVL") to another location away from the Court. The fact that the evidence was given by AVL has no effect on the weight their evidence should receive. This is standard procedure where due to age, illness or other practical difficulties it is thought more appropriate to have the evidence given that way. I draw no inference adverse to the accused because of it. The quality of the technology was good and there was no impact on the ability of the Court to assess the demeanour or credibility of the witnesses who gave evidence in this way.

Demeanour

1. I note the comments of the High Court in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [31] that the ability of a judge to assess credibility based on demeanour is highly questionable. I embrace the comments of Hamill J in R v Hutchinson & Wilkinson [2018] NSWSC 1759 [1] that it is better to set the testimony under scrutiny against facts that are known or proved objectively, than to purport to have some uncanny capacity to divine a witness's honesty and reliability by how they look.

Circumstantial evidence and inferences

1. In addition to the direct evidence of what people say that they saw and heard, I am also able to draw rational inferences from the direct evidence. Where the inference sought to be drawn is adverse to the accused, it should only be drawn if it is the only rational inference available. [2]

Expert evidence

1. Various experts gave opinion evidence. This included the psychiatrists, Dr Furst and Professor Greenberg and the forensic pathologist who conducted the post-mortem, Dr Maistry. There were also crime scene officers who made some limited observations about the accused's apartment and building and nearby locations where Mr Halatoa, Ms Tairi and TK went after leaving the apartment.
2. Whilst the qualifications of these expert witnesses were not challenged, I am not obliged to accept their opinions. Their evidence is to be assessed in the same way as the other witnesses. Where the evidence is not challenged, or subject to agreement between the parties, I might more readily accept the evidence. However, ultimately it is a matter for me as the tribunal of fact, and not the expert witnesses, to determine the inferences to be drawn from the direct evidence. Where the evidence is based on assumptions that I do not accept as the tribunal of fact, the opinions should be given little weight.

Evidence that may be unreliable - witnesses reasonably supposed to have been criminally concerned in the events

1. Counsel representing the parties agreed that the evidence of Nadine Tairi and TK should be subject to the kind of warning that would be given under s 165 of the Evidence Act 1995 (NSW). That is, their evidence falls into a category of evidence that the law recognises may be unreliable. In accordance with s 133(3) of the Criminal Procedure Act 1986 (NSW), I must take into account the following warnings that would be given to a jury.
2. The Crown relies upon the evidence of Nadine Tairi and Tekawau Opai (TK). The Crown asserts that Ms Tairi and TK are persons who were, or might have been, involved in an alleged crime being the robbery of the accused.
3. The law requires me to give myself certain warnings and directions concerning this evidence. They are given in every case in which the Crown relies upon the evidence of a witness who was, or might have been, involved in an alleged crime connected to the matter at trial. They are not given in this case because of any view which I have formed concerning the evidence of Ms Tairi or TK.
4. The need to give such directions arises because the Courts have, over the years, a great deal of experience concerning the reliability of evidence given by a witness who was, or might have been, involved in the alleged crime or a connected crime. That experience has shown that the evidence given by such a witness may be unreliable. I do not intend to suggest, however, that such evidence is always unreliable.
5. My purpose in giving myself these directions is only to warn myself that the evidence of such a witness may be unreliable, and for that reason I must approach that evidence with considerable caution in the way in which I will outline shortly.
6. There are many reasons why the evidence of such a person may be unreliable. Possible reasons are:

• It is only natural that a witness who was or might have been involved in the alleged crime, or a connected crime, may want to shift the blame from himself or herself onto others, and to justify his or her own conduct. In the process, the witness may construct untruthful stories, which tend to play down his or her own part in the crime and play up the part of others in the crime, even going so far as to blame quite innocent people.
• Persons who are, or might have been, involved in an alleged crime may make false claims as to the involvement of others out of motives of revenge or a feeling of dislike or hostility.
• Such a person may be motivated to give false evidence in order to qualify for a reduction in his or her own sentence. In this case I note that TK was given a 25 per cent discount in his sentence for future assistance, being the giving of evidence in this trial. I note that had he failed to give evidence in the trial, the Crown could appeal against the sentence imposed, and the discount for assistance could be removed.
• There may be other reasons or motives why false evidence has been given by such a witness. It is not for the accused to establish what they might be. I must remember that the Crown has to prove the essential aspects of its case and the accused does not have to prove anything.
• Experience has shown that once such a witness has given a version to the police which incriminates an accused, he or she may feel locked into that version, even if it contained inaccuracies or even if it were substantially untrue.

Oral evidence, statements and exhibits

1. Twenty-four witnesses gave evidence in the trial. There were some statements that were tendered where the material was not contentious and did not need to be the subject of cross-examination. The Crown tendered 32 exhibits and the defence tendered 2. The exhibits included hospital records and expert reports, photographs and, most helpfully, CCTV footage - exhibit E - taken from the Tregear shops between 4:05pm and 4:26pm, in the taxi on the way to Mt Druitt Hospital, and at Mt Druitt Hospital. This material is very important because it places events in context, provides reliable reference points as to time and circumstances, and in many respects calls into question the versions of events given by TK and Ms Tairi.
2. The psychiatrists called by each side gave important evidence in respect of the partial defence of substantial impairment, and, perhaps more significantly, on the question of the operation of the accused's schizophrenia upon his state of mind and his perception of the circumstances he was in at the time he responded as he did. Whilst their views differed in relation to the substantial impairment issue, there was remarkable similarity in their professional opinions as to the relevance and operation of the accused's mental illness on the question of his belief and perceptions relevant to self-defence.
3. There was, unsurprisingly, lengthy cross-examination of TK and Ms Tairi as to what they asserted they saw and did. I hold significant doubts about the reliability and/or veracity of nearly everything said by those witnesses in their evidence before me for reasons that I will come to in detail later in this judgment.
4. This is a broad introductory overview only in respect of the evidence that I have considered. Compliance with s 133(2) of the Criminal Procedure Act does not require me to set out all of the evidence, or explain every element of my reasoning process. I am required to set out the findings of fact upon which I base my verdict and explain adequately the reasons for reaching my verdict by reference to the evidence and bearing in mind the submissions made by counsel.

Inspection of the accused's apartment and surrounds

1. The Court together with the legal representatives conducted a view at Tregear. Pursuant to s 54 of the Evidence Act, this is evidence in the case and inferences can be drawn from it. The Court and the lawyers met outside the accused's apartment block and were shown inside the apartment block, up the stairs and into the accused's apartment. The group then exited the rear door of the block and walked down a pathway that is common ground was taken by TK, Ms Tairi and the deceased after they left the accused's apartment having bashed and robbed him. The three people were both heard and seen running along this path by neighbours whose villas or apartments were very close to this path. Several points were noted along that pathway. The location where Mr Halatoa was said by TK to have collapsed was noted as was the location outside 2 Balleny Place where Mr Halatoa was placed in a taxi. The group then walked to the Tregear shops and inspected the location of the CCTV cameras and the location of the IGA from which Ms Tairi obtained some water and paper towels between 4:11pm and 4:13pm on 28 February 2018.

The background and mental health of the accused

1. This short history is taken from Dr Furst's report and is not controversial. The accused was born in the Philippines and came to Australia in 1988. The history available suggests that the accused began to experience symptoms of schizophrenia in about 2002 that led to consultation with a private psychiatrist and a prescription of olanzapine, which he took, off and on, over the next 16 years. He was employed until about 2012. He was married with two sons, but the marriage broke down at about that time. The accused also had type II diabetes.
2. He had used the drug Ice (methylamphetamine) for close to 20 years and at the time of the stabbing he was using about 0.2-0.3 grams per day. His family had arranged for him to be admitted to a drug and alcohol rehabilitation programme in the Philippines five or six years ago where he remained for about 5 months. It seems his drug use resumed on his return.
3. The accused gave a history of ceasing his medication about 12 months prior to the stabbing. He was living on a disability pension and had been at his current address for about 12 months.
4. Both Professor Greenberg, who assessed the accused for the Crown in May 2019, and Dr Furst, who assessed him in January 2019, are of the view that the accused suffers from treatment-resistant schizophrenia.
5. Dr Furst described this as a chronic psychotic illness, often characterised by delusional beliefs, auditory hallucinations, disorder of thought form, difficulty in processing information, prominent mood symptoms and bizarre behaviour. Dr Furst also explained that there is often a prodromal period in which individuals with the illness feel lethargic, depressed and unable to cope, resulting in disruption to family realtionships and poor social functioning. Frequent symptoms include paranoid beliefs, self referential thinking, grandiose delusions and thought disorder. Dr Furst was of the view that the accused also had substance use disorder - namely methylamphetamine dependence.
6. Professor Greenberg concluded that the accused can be considered for two differential diagnoses - "psychotic disorder: query chronic schizophrenic disorder, or, query chronic substance drug-induced psychosis and substance-induced disorder, (crystal methylamphetamine). Professor Greenberg explained that the accused was suffering from schizophrenic disorder precipitated by his use of crystal meth, or a chronic drug-induced psychosis, (amphetamine substance induced psychotic disorder), with ongoing treatment-resistant delusions and auditory hallucinations.
7. The accused described to both Professor Greenberg and Dr Furst (and other mental health professionals he consulted with whilst under the care of Justice Health) that people can "read his mind" and that it is because "the spirit comes to see me because my spirit is not released. It's in my body". This is a belief he shared with police and his friend Ms Ioramo, who says he often spoke of this to her. It is a prominent feature in his record of interview conducted at about 3:00am on 1 March 2018. Both psychiatrists considered this to be a significant feature of the accused's mental illness. They described it as a "paranoid delusional system" or "delusional thinking and beliefs".

The presentation and demeanour of Ms Tairi during her evidence

1. Ms Tairi gave evidence from New Zealand by audio-visual link. In March 2018 she was charged with robbery for her role in the events of this day, but the charge has not been heard because Ms Tairi chose to breach her bail conditions and leave Australia. Processes to extradite Ms Tairi to Australia were started belatedly and had not been completed when COVID-19 restrictions on travel prevented her departure from New Zealand.
2. The manner in which Ms Tairi gave her evidence deserves specific comment. Her answers were often flippant and deflecting. She sought to paint her conduct on the day in the best possible light. She on occasion swore at counsel for the accused, particularly when pressed on a significant matter or an obvious untruth. On a number of occasions her level of distraction and apparent disinterest was so extreme that I was obliged to instruct her to sit still, focus on the questions and answer them. She bobbed and swayed in her seat, she doubled over in her chair a number of times and in doing so removed her face from the view of the camera. On occasion she shrilled and groaned. She appeared to have trouble focusing on many of the questions asked. She appeared to me to be drug affected. Most significantly I formed the view that she said whatever she thought would cause least difficulty for her, including on occasion, deflecting the question, requiring a toilet break, insulting counsel cross-examining her, and on one occasion at least, telling a deliberate lie, which she admitted in re-examination was a lie.
3. This is against a background of having given multiple different and initially entirely misleading and deliberately untruthful accounts to police of how her friend Thomas Halatoa had come to be stabbed.
4. All of these considerations have led me to the view that I can give very little if any weight to anything Ms Tairi says, unless it is supported by other objective evidence.

Ms Tairi's evidence about the events of 28 February 2018

1. Ms Tairi claimed in her evidence that she had phoned the accused and told him that the three of them, she, TK and Mr Halatoa were going to attend his place. She said that she called him on a payphone and that she knew his number off by heart. It was put to her by counsel for the accused that this was untrue and she had not spoken to the accused before they went to the apartment: A: That's bullshit. That's what I'd say to that. Q: Is that because you say in court on oath you have a clear memory of speaking to Rey Quintana that day? A: Yeah. Q: And a clear memory of him saying you can come on over with TK and Thomas? A: "It's okay", yeah, yep. I would not turn up to someone's house uninvited. Q: When you called him on this number, it wasn't a situation you got a voicemail; sorry, it diverted to voicemail? A: No. Q: Definitely not? A: Definitely not. Q: Can't be right? Is that what you are saying; it can't be right? A: No comment. Q: And "no comment" because you are not sure what your answer should be, is that right? A: No, I just can't be bothered with this crap anymore so it's up to you, tell the story. I'm trying to answer your questions and, yeah, I don't like the way this is going. Round in circles. No disrespect though.
2. Ms Tairi's attention was drawn to what she told the police in her ERISP on 2 March 2018 where she said that she did not know the accused's phone number and she thinks TK had it. Counsel for the accused asked her whether she was telling the truth to the police then and she volunteered that she was "probably lying".
3. She also, it seems, had forgotten that she had told police in the ERISP that she called twice and the calls diverted to message bank. When asked by counsel for the accused about whether that was the truth, she replied: "obviously not". When it was put to her that she did not call the accused to say they were coming because she knew they would not be welcome, she deflected with "Who the fuck said that? No, you got the story wrong, bro. That's not what happened. That is so not what happened".
4. She was asked about what she told police in her ERISP about why TK and Thomas went with her to the accused's house. She was asked by police "So they went there to rip?" and Ms Tairi replied "yes", but said that they did not tell her that was what they were going to do, and she did not suggest it. She had agreed in the ERISP that she knew the accused would never have let them in but he let her in because he knows her, but in her evidence before the Court she denied that was the case: "No. I don't over-think situations, man".
5. When pressed further about the different version she gave to police about this, and whether she remembered the question and answer about this in her ERISP, she replied: "No-yeah. No, I don't but, yea, that not what f'ing happened. Can I please go to the toilet? I need to go to the toilet".
6. Later in the cross-examination she sought to avoid committing to a position by saying "I was just telling the police whatever they wanted to hear, by the looks of things…". She agreed that she knew the police were engaged in something very serious, investigating what police thought might have been a murder, but she still would "just tell police what they wanted" replying: "Yeah, I would have told them- the majority of the story that I told them was the truth but there's some of it would have been just saying shit, just cause. Because there's two different sides to this story".
7. She then indicated that she "really didn't want to do this anymore" and that she was "close to getting up and walking out".
8. When pressed regarding the answer she gave about "two different sides to this story" Ms Tairi said: "Yeah, there is two sides, there's mine and TK's side. I know that there's two sides. Like, either way, it's my story. I'm over it basically. All of this is true (indicating her ERISP), I've obviously said it, I agree to it and I just want this done and dusted because I want my life to live now. I have had enough".
9. When pressed on the issue as to whether it was true as she had claimed in her evidence that "the boys had won money on the pokies that day", and if they had, why did they need to leave the apartment to get money from the ATM to pay for the drugs they had smoked, she said: "No one had won money? Oh, no. No. No comment"
10. When pressed on who paid for the drugs they smoked together and the fact that she told police in her interview on 28 February 2018 that Mr Halatoa did not have any money for drugs and so was she telling the truth to the police on 28 February 2018, she provided yet another deflection: "Probably not. Probably yes. I don't know. No comment".
11. Ms Tairi has given multiple differing accounts of what she saw in terms of Mr Halatoa and TK assaulting and/or fighting with the accused in the apartment. The version she gave in her evidence in chief was that they arrived, she knocked on the door and there was no answer so she called the accused from outside and he came out on to the balcony and by the time she went upstairs, TK and Mr Halatoa were already in the apartment.
12. They sat down and the ice pipe was passed around 2 or 3 times. The boys went to the IGA but "they obviously decided to do what they did". They went straight into the bedroom where the accused was on their return and she heard noise and went into the bedroom and saw TK on the bed with his arm around the accused's neck. The accused's face was "all battered up".
13. They yelled "get out". She went back in later and saw the accused get up from the bed and saw a knife in his hand. He looked at her for a split second and she said "No Rey" and he went across the bed and attacked Mr Halatoa.
14. She said that she did not see the accused come into contact with Mr Halatoa's body, saying "all I know is Rey went over to Thomas' personal space, that is it". She was asked "Did you see Rey use the knife" and she replied "I'm not too sure" but next she heard Thomas yell "He got me" and then he ran out and she ran out after him. She said that TK had "long gone" by then.
15. In cross-examination Ms Tairi said that TK and Mr Halatoa came back inside the apartment after allegedly "going to get money from the ATM", walked past her and to the bedroom where the accused was and she heard a noise "Like a - like a screech, like a - yelling, obviously, like a struggle, struggling noise". She went into the bedroom and saw the accused had been hit. His face was swollen. TK had the accused in a headlock and they were on the bed and there was a struggle. She says she was then: "Freaking out because that shouldn't have happened" and that what she saw was "they were trying to take advantage of Rey", "they were trying to stand over him for his stuff". She said that Mr Halatoa and TK yelled at her to get out. She says that a little after that TK left, and then a few minutes later Mr Halatoa left with a bag saying "he got me" and she then followed him out. She was a couple of steps behind him but could not see if he was bleeding.
16. Ms Tairi was reminded about the version she had given to the police on 2 March 2018 that the first time she went into the accused's room, TK had the accused in a headlock and Mr Halatoa was by the dresser putting things belonging to the accused into a bag, and that she had said that she then went outside taking a can of coke and cigarette butts to the bin. She denied that she had done that to remove potential evidence that they were there robbing the accused. When she returned, the accused's face was "I couldn't even recognise his face, like, it just, he looked punched in".
17. A version she gave to police on 28 February 2018 was different again. That version was that she went into the room and saw the accused and Mr Halatoa "rumbling on the bed" and that while that was happening Mr Halatoa "got stabbed". When pressed on what was true she said "Yes, that's false, it's false".
18. When pressed on this issue further, there was this exchange: Q: And your evidence is that when you were required to describe how it is that Thomas got stabbed that interview you lied, is that right? A: Yes because I didn't actually see it, like see it, but like touching the skin I didn't see it, but I knew it was Rey that did it because there was only the two people in there and I know I didn't do it". [3]
19. Ms Tairi was granted a certificate under s 128 of the Evidence Act "for any answers that may tend to incriminate the witness in any criminal activity arising from the events of 28 February 2018". She was advised specifically that the certificate would cover her answers about what happened on that day, but that it does not protect her from prosecution for telling lies on oath.
20. But Ms Tairi went on to tell lies on oath about whether she asked for an ambulance to be called.
21. She was shown CCTV footage of her running across Balleny Place after Mr Halatoa followed by TK. She initially denied it was her on the footage. She conceded that later footage did show her running across the carpark at Tregear shops.
22. She was pressed about what she told a witness in the IGA when she ran over to get water and paper towels: Q: Up to this point in time no ambulance had been called to your knowledge, is that right? A: No that's right. Q: And did you go into the IGA shop? A: Yep, I went into the shop. Q: Did you approach a staff member of the IGA shop? A: Yep. Q: Did you ask for some paper towel and some water? A: Yes. Q: Did you say to her these words or words to the effect of "My daughter has been stabbed"? A: My daughter? No. Q: "My daughter has been stabbed"? A: No. Q: Did she ask you if you wanted her, that is the shop keeper, the staff member, ask you if you wanted her to call an ambulance? A: Yes. Q: Did you say to her "No, one's already been called"? A: No, actually no. Q: What did you say to her? A: I said "Yes call the ambulance, I am just over there". Q: When you said "just over there" where were you pointing to sorry I withdraw that. Were you pointing somewhere? A: No I said "just over there". Q: When you said "just over there" did you indicate in any way what just over there meant? A: No I just said "just over there". Q: And you asked her to call an ambulance, is that what you say? A: Yes. Q: I suggest to you Ms Tairi you are lying about that? A: Okay cool. Q: Did you agree with that or disagree? A: I don't know, you tell me. EVERS: Ms Tairi I am not the person giving evidence in this court room you are. CROWN: Well your Honour TAIRI: I'm trying to co-operate but when you are fucking, oh sorry, saying stuff like that what has this got to do with the fact that Rey murdered him? Q: Ms Tairi what I put to you before was that the staff member of the IGA shop said to you words to the effect of "Do you want me to call an ambulance" and I think you agreed she said that to you, is that right? A: Yes. Q: And did you say to her words to the effect of "No an ambulance has already been called"? A: Yes. Q: A few moments ago Ms Tairi I asked you that very same question and your answer to the question in relation to whether you said to her words to the effect of "An ambulance has already been called", you said you did not say that so which one is the truth? Did you say those words or did you not say those words to the staff member, "An ambulance has already been called"? A: No I said "An ambulance has already been called", I said that from memory, yes. Q: You told us a few moments ago that you knew that as of 16:11pm when you ran across the car park to the IGA that no ambulance had yet been called, is that right? A: I don't know, yes, that's right if it is in there. Q: Don't worry about what is in there, just tell us what you remember Ms Tairi? A: I don't remember, that is the thing. I am just saying whatever, I am just agreeing. I blocked this out from my mind ages ago. Q: What I am suggesting to you Ms Tairi is that when the IGA staff member offered to call an ambulance you told her that an ambulance had already been called to dissuade her from calling an ambulance herself? A: Okay. Q: Do you understand that question? A: Okay. Q: Do you understand that question I just asked Ms Tairi? A: Yes I know what you are saying, yep. Q: Do you agree or disagree with that proposition that I attempted to A: I disagree, disagree. I disagree. Q: The truth is, isn't it Ms Tairi, at this point in time you did not want an ambulance called did you? A: Disagree. Q: You did not want an ambulance called because you did not want the risk that the police would also be called did you? A: Disagree. Q: Because you didn't want the police to know what had happened in Rey Quintana's apartment did you? A: Disagree.
23. Later in her cross examination, this exchange occurred: Q: At any point in that time period did you ask anybody else to call for an ambulance? A: Yes. Q: Who? A: Whoever was walking past. Q: Whoever was walking past? A: I won't talk anymore. Q: Sorry I missed that last bit? A: I don't want to talk anymore.
24. In re-examination Ms Tairi said this about those issues: Q: You said in your evidence when you were asked questions about whether you tried to get an ambulance you said you asked anyone walking by? A: Yes. Q: Who was that, what did you say? A: That was incorrect. Q: What part was incorrect? A: That I even asked. There was no‑one walking by.
25. Ms Tairi also claimed in re-examination that she lied to police about what occurred because she was "high" or "off her head" and that she was "a frigging ice addict for a bit. Just my head wasn't all there".
26. She agreed that she lied to police at Mt Druitt Hospital when first asked about what happened. She said that "a Filo guy started yelling at Thomas" outside the IGA at Tregear and then motioned with her right fist in a swinging motion towards her chest and said "well the guy stabbed him". She denied that she gave that version (twice in effect) because she was afraid that if she told the truth, she would be arrested by police.
27. Ms Tairi gave a third version to Detective Whitely at Mt Druitt Hospital to the effect that they went to a mates place to have a smoke and he and Rey got involved in an argument. She went to the bedroom and heard fighting and heard Thomas say "he got me" and then he ran out and she ran out after him. He ran for a bit and then he collapsed and an Aboriginal fellow and his two junkie mates came and helped and we got a taxi to Mr Druitt Hospital. This version did not mention TK's presence at all.
28. These are significant matters about which Ms Tairi lied in multiple different ways. I find that her evidence is utterly unreliable and unable to be accepted unless supported by other objective evidence. Her admission, made in re-examination, to having lied on oath during her cross-examination regarding whether she asked a passer-by to call a taxi while her friend Mr Halatoa lay dying in Balleny Place, is an illustration of her willingness to continue to lie and deflect.

The demeanour and presentation of TK

1. It is common ground that TK received the benefit of a 25 per cent reduction in his sentence for his part in the events of the day, on the basis of providing assistance in this trial. He appeared to be cooperative with the questioning and gave apparently considered answers. I am of the view however that many of the answers were self-serving and deliberately so. I have reservations about his truthfulness in relation to a number of aspects of his evidence.
2. In significant ways his account is contradicted by CCTV evidence for example his assertion that he "carried" Mr Halatoa to Balleny Place. CCTV footage shows Mr Halatoa running onto Balleny Place, followed by Ms Tairi and then TK following a little later. TK actually goes to a different location away from Mr Halatoa. CCTV footage from the taxi also shows TK told lies about who had the bag of stolen items, what happened with the stolen items, and what he was wearing in the taxi.
3. I must also note that I observed TK in the witness box. He is a large, powerfully built young man. He said he was about 130kgs although believed he was lighter than that in 2018. At one point in his evidence, I was required to view TK's left arm, the arm he says he put around the accused's neck for a period of time. It was a notably large, well-muscled arm.

TK's evidence

1. TK had been out of jail for 7 days. On the morning of 28 February 2018 he says that he reported to parole, went to Centrelink and the methadone clinic at Blacktown. He says he then put $20 through the pokies and had a beer. He did not win any money on the pokies. He bought cigarettes and alcohol at Woolworths and ran into Mr Halatoa. He and Mr Halatoa ran into Ms Tairi while walking to the station. He planned to play Poker at a pub in Mt Druitt and they came with him. He says that they caught the train together and Ms Tairi and Mr Halatoa were kissing and cuddling on the train. It was too late for the poker game. Mr Halatoa said "I'm just going to see a mate". TK claims that he said "where?" and Mr Halatoa replied "Tregear" and it was not until they pulled up at the shops at Tregear that TK said "Are we going to Rey's?".
2. He says that on arrival at the accused's apartment block Ms Tairi called out to the accused and he came onto the balcony and then he let them in through the door and that both doors were opened, the screen and the big door. TK says he was given a glass of water by the accused and he had a cigarette and then the ice pipe was passed around three or four times. They were talking and smoking and it was "pretty normal". There was no aggro and everyone was enjoying the mood. He says that the accused went into his bedroom and then Mr Halatoa went in and they started arguing, he thinks about money, then they were "into it" and they were pushing each other. They then started "sort of wrestling with each other" and TK claims he then saw a knife in the accused's hand.
3. He says that he stood and moved towards them and grabbed the accused and put him in a headlock from behind; "I was holding him and trying to get him to drop the knife, trying to choke him out". He then describes being "hit" with the knife in the arm, "pretty much on the elbow". He said he had nothing on his arm and the knife cut his arm open and "I was fucking in shock and I took off".
4. He said that the wound was bleeding and "I took off downstairs and I went - I went and wrapped it up". He said that he put a t-shirt that he had on it, leaving him in a singlet. He said that he left the jacket that he had been wearing behind at the apartment and that Ms Tairi returned it to him later in the taxi. This is not borne out by the CCTV footage that shows that TK was wearing the jacket when he was first seen on the footage at about 4:05pm walking across Balleny Place some 20 minutes before the taxi arrived.
5. He said that he went "Downstairs to, yeah, and then I was - I was pissing out with blood and fucking - I was wrapping my arm up". Then he says Thomas came down and he was stumbling and started losing consciousness and that TK was "struggling to carry Thomas and these couple of blokes were coming past, and they assisted like, and helped me put him in the taxi and that".
6. TK said that he waited at the hospital but did not tell anyone that he himself had been injured. He says that after he went home that night, he showered and went to bed with the t-shirt still wrapped around his arm and it was still wrapped around his arm when the police came to the house the next morning. On further examination by the Crown he said that he actually had put masking tape on this arm and that he did that after the shower.
7. In cross-examination he agreed that he used heroin and buprenorphine in jail and Ice was not available. He denied that there was any conversation between him, Mr Halatoa and Ms Tairi about using Ice that day, but once he knew they were going to see the accused, he decided that he would use Ice but there was no conversation about who would pay for it.
8. He said that after the stabbing and leaving the accused's apartment block, he walked with Mr Halatoa who was stumbling and could not walk without help. Mr Halatoa was leaning on his right side and he walked with him. TK acknowledged that he had a mobile phone but did not call 000. He said that when he put Mr Halatoa down across the road from the shop, a taxi came past almost straight away and when he waved down that taxi, Ms Tairi was there.
9. It was pointed out that in his ERISP on 1 March 2018 he told the police that the argument he heard was that Mr Halatoa owed the accused money and that they pushed each other, and then Mr Halatoa "whacked" the accused. He also agreed in that interview that when he was in the police car that morning on the way to do the ERISP, he told the police "Look, me and Thomas were punching Rey".
10. He also said in the account he gave in that March 2018 ERISP that the accused "pulled the knife out and started swinging it" and Mr Halatoa was trying to fight him. He was asked whether the accused was put into a headlock and TK said "I don't know about that". He said that at one point Thomas knocked the accused to the ground and "that's when he started swinging the knife" and that TK was heading towards the front door and pulled Thomas towards the front door and that's when Thomas got stabbed.
11. When this account was put to him in cross-examination, TK said that this account was a lie, and that it was also a lie when he told police in that ERISP that the fight took place "in the lounge room in front of everybody".
12. TK told police in his 1 March 2018 ERISP that he "carried Mr Halatoa the whole way". He would not accept the proposition put to him in cross-examination that Mr Halatoa was able to run all the way to the apartment block opposite the IGA. At that point in the cross-examination TK had not been shown the CCTV footage that shows a person who clearly is Mr Halatoa running across Balleny Place. When TK was shown it, he would not accept it showed Mr Halatoa nor would he accept it showed himself, nor would he accept it that it showed Ms Tairi although clearly it did. TK in particular was recognisable due to his size, his distinctive outfit of white shorts and black and white striped tracksuit top and his distinctive walk.
13. The second ERISP with police in March 2019 was for the specific purpose of setting out, as part of his plea bargain, what evidence TK could give in the case against the accused. In that version TK said that he put the accused into a "chokehold" and ended up falling backwards onto the floor near the bathroom.
14. In that interview he agreed that he said that he had run out of the unit after he had been stabbed and so he did not see Mr Halatoa get stabbed, and that Mr Halatoa had later stumbled out the door and "passed out". TK said that he tried to pick him up but he was too heavy and he "kind of just dragged him up to the top" near the shops.
15. He also claimed in that 2019 interview that he was given the brown bag taken from the accused's apartment only once he was in the taxi and that it was Ms Tairi who gave it to him. When shown the CCTV footage, in cross-examination he admitted that he had the bag when he got into the taxi and said that he got it then from Ms Tairi.
16. Other accounts that TK had given were put to him in cross-examination. One account was to a psychologist for a report to be used at his sentencing hearing in which TK admitted that he held the accused while Mr Halatoa stole things and that he released the accused when he was stabbed and then the accused stabbed Mr Halatoa and then they left. He also said in a letter to the Court tendered at the sentencing hearing that his friend Mr Halatoa "lost his life in front of me", but claimed in cross-examination when pressed about that, that he "might have worded it wrong".
17. The jacket TK was wearing was tendered. Apart from a hole near the cuff in the left sleeve where TK described pulling off the security tag when he stole it, there was no blood stain or cut anywhere in the sleeve of the jacket.
18. The CCTV footage showing TK's activities between 4:05pm to 4:26pm, and other objective evidence does not support what TK says occurred. He is wearing the black tracksuit top when he first comes into view at 4:05pm. There are a few blood smears and drops on the stairs at the apartment that are compatible with TK's DNA but there was no blood at all of his found in the apartment. There is nothing consistent with the account "pissing blood" from his wound as he says. He was found to have a large cut on his left elbow that required stitching when he was taken into custody a few days later. He told medical staff he got that cut from glass in a fall off a motorbike. However, many parts of the versions given by TK simply do not add up and are implausible. It is difficult to know what parts of TK's accounts are true, if any.
19. I am mindful of the s 165 warning I have given myself about Ms Tairi and TK, but my reservations about their reliability and their multiple demonstrated arrant lies, makes it extremely difficult to obtain a clear picture of what in fact occurred in the accused's apartment that afternoon.
20. I consider the accused's account to be closer to the truth, but it is difficult to piece together precisely what occurred given his language difficulties and the over-arching role and effect of his mental illness on his perceptions of what occurred. There is however a certain consistency in the accounts the accused has given.

The accused's accounts of what occurred on 28 February 2018

1. The first brief account was given to his neighbour Mr Knight. He told him he had been bashed, asked to borrow a phone and then asked Mr Knight to call 000. Mr Knight noted that the accused had blood on his face, appeared unable to see out of his left eye and was out of breath.
2. The second account was given to Ms Ioramo who arrived at the apartment by taxi at about 4:40pm. Ms Ioramo said he seemed frustrated, upset, angry and confused. The accused told her that TK and someone else had bashed him and took all his things. He had woken up and they were already in house. They ran in, took all his things and he ended up stabbing one of them. He also told her TK had a knife. Ms Ioramo said that when the police arrived, he said "good".
3. The third brief account was noted by DSC Barr at the apartment some time probably close to 5:50pm. She asked whether the accused knew why police were there and he said "Because people came here and assaulted me". He was cautioned and told he was under arrest for assault. He was asked where the fight took place and he indicated "here", whilst standing in the lounge room.
4. The fourth account was given to the paramedic Mitchell Morrissey who assessed him at about 6:00pm at Mt Druitt Police Station: "I noted that he had significant facial injuries to the right side of his face. I was treating so I spoke to Rey Quintana. When he was speaking he was mumbling but I could understand everything he was saying. I said "What happened?" He said "I was robbed and assaulted. I think someone grabbed me by the neck". When he said this he gestured with his arm like someone was strangling him. He said "One guy held me by the neck and another guy punched and kicked me to my face a few times". I said "Do you know if you lost consciousness?" He said "I think so". Mr Morrissey also observed that he was very agitated and restless and was "rambling on about things".
5. The fifth account was recorded by DSC Hallcroft on her phone. It is a rambling and confused account. The relevant parts include that he was sleeping and then he heard something "went bang in my door", "and then they, when I standing up the three of them are already inside my place. One of them did it before". He said that he didn't know the other guy and then "someone… my neck and then I think I passed out or something", "and then I woke up I didn't know what happened and then… they're gone".
6. The sixth more detailed version was given by way of ERISP at about 3:00am on 1 March 2018. It too is a confused, disjointed and somewhat rambling account. The accused said that it begun this way: "I was sleeping and all of a sudden I heard a bang on the door… and I just thought that something, something wrong. I stand up and as I was standing up I were ooh they're already in near my doorway they were in my room they… already pushed the door out… main door. They did something like uh pull it they hit it.. open. It broke the uh the lock". The accused said that there was a guy with TK he didn't know and Nadine (Tairi) whom he had known for 3 years.
7. He went back to his room and they followed him so he sat in the living room with them. He said "they tried to like scare me" and "they kick and punch me they grabbed my neck and the guys start punching my face nonstop. I think I got passed out or something, I don't know what happened… I had a dream sometimes when I try to wake up he still here he's still holding me and next I just saw them run away". He added: "And then they arrested me I am the one who got arrested and I said to them and then they said the guy dies and I don't know what they were talking about I don't even remember what happened".
8. He told police that TK had bashed him 9 months ago and that he had known TK for about 6 months before that.
9. He said that Nadine wanted him to give them a smoke and he gave them what he had because he was scared.. "Just to calm me down because I don't know what to do..". He denied that he smoked ice with them although I find that he did. He wanted them to get out.
10. He said that Nadine also wanted to put her sim card in his phone but he does not know if she made any calls. They asked him to get a pen and paper and followed him. He said the men left briefly and then came back and went straight to his room and all of a sudden TK grabbed him on the neck and punched him and the guy in front of him head-butted and punched him and he passed out.
11. He said that he saw TK had a knife and that he knew TK carried a knife.
12. He also noted that they did not call or text him before arriving and that he has a new number that he "does not give to anyone".
13. Police put to him that he stabbed Mr Halatoa and he said "Like I said, I don't remember the thing. I maybe I stab him. I don't even remember. I don't even know".

What the neighbours heard and saw

1. Anne Roberts shared a wall with the accused's apartment. She said that she heard a very loud "bad argument" involving a young man and an older voice she recognised as the accused. She heard a scuffle and a gasp and what she thought sounded like the young voice saying "help me" and then complete silence.
2. Janice Davidson lived in the apartment under the accused. At around 4:00pm she heard scuffling and a noise that sounded like furniture moving around and some yelling and fighting. She could not make out what was being said. They were male voices at quite loud volume. Next she saw through her front door peephole a couple of fellows running down the stairs. She heard them sort of saying something to each other and then she saw them running out the back door. She described the two men as quite tall wearing shorts and t-shirts and she thought coats and they were 2 or 3 steps apart. They were followed a short distance behind by a woman who had long hair possibly in a ponytail. Ms Davidson had seen her there once or twice before with the accused.
3. Fay Masters lived in Balleny Place in a villa that backed very closely onto the path that led away from the back of the accused's block of apartments. She said that between 4:00pm and 5:00pm she heard people running through. She thought it was kids. She went to her ground floor balcony and looked and saw just an arm going around the corner and out of sight followed by one man and a lady. The man she described was wearing a black shirt, white trousers and a black hat. She recognised the woman as someone who had been past her place before and whom she knew did not like the dogs. She was behind the man, about 4 house lengths behind. She described the woman as aboriginal with dark brown hair pulled up in a loose bun, about 5 foot tall, of in-between build, wearing blue jeans, a whitish blue t-shirt and carrying a bag. She thought it was odd that they were all running when there was no one chasing them.

What the CCTV at Tregear shops captured between 4:05pm and 4:28pm

1. The CCTV footage taken from cameras outside the Tregear shops provides objective evidence of the movements of Mr Halatoa, Ms Tairi and TK between 4:05pm and when they entered the taxi at Balleny Place at about 4:26pm.
2. The times at which certain things occurred and the persons shown in the footage is agreed, and I add my own observations as to what I find is shown in the footage. Mr Halatoa appears first running across Balleny Place in the direction of 2 Balleny Place at 15 seconds after 4:05pm. He is dressed in black shorts and black t-shirt. About 9 seconds later Ms Tairi is seen running, followed by TK. TK is still dressed in long white shorts and the long sleeved black tracksuit top with white stripes down the sleeves and a black cap.
3. Mr Halatoa and Ms Tairi are out of sight for a while and TK can be seen standing at the other side of Balleny Place, pacing and apparently talking on a mobile phone. At 4:11pm Ms Tairi is seen crossing Aurora Drive and then hurriedly crossing the car park at the shopping centre.
4. Evidence from an IGA employee, which I accept in full, was that a woman fitting Ms Tairi's description said her daughter had been stabbed and she needed towels and water. The woman asked Ms Tairi if she had called an ambulance and Ms Tairi said yes. The woman said that Ms Tairi appeared hurried and flustered.
5. At 4:13pm Ms Tairi is seen crossing Aurora Drive back towards 2 Balleny Place.
6. At 4:18pm TK entered the field of vision at the Tregear shops, crossing the car park towards the shops. At 4:22pm he is seen apparently talking to an unidentified man in a red shirt.
7. The taxi entered the car park at 4:24pm and TK got in. The taxi then went to 2 Balleny Place and picked up Ms Tairi who entered at 4:26.08pm. Mr Halatoa and TK were both in the taxi by 4:26.49pm.

The journey to Mt Druitt Hospital by taxi - CCTV footage and evidence

1. Mr Virk the taxi driver said that the man who waved him down at the shops asked him to take him to pick up his sister at flats on the other side of the road.
2. The taxi CCTV footage shows Ms Tairi get into the front seat and TK got out. A while later TK entered and Mr Halatoa is pushed into the back face down across TK's lap.
3. Mr Virk said that he told them he did not want to take the man and that they needed an ambulance, but they abused him so he shut up. He said that he thought they might assault him. When they started pushing the other person onto the back seat, he turned and looked and saw what he described as "like a knife injury" to the person, but there was no blood oozing out and he thought to himself "this man is dead".
4. The taxi arrived at Mt Druitt hospital at 4:37pm.

What happened at the Hospital; Tairi gives the police an untruthful version of what occurred while TK hides in plain sight

1. There was CCTV footage from Mt Druitt Hospital both inside the Emergency Department waiting room and outside the doors of the ED that demonstrated the following.
2. Ms Tairi hurried into the emergency department at 4:38pm and then a minute later back out. Shortly afterwards a number of staff attended the taxi and Mr Halatoa was removed from the taxi and CPR was commenced.
3. Dr Melis said that upon his involvement that commenced at about 4:45pm, Mr Halatoa was in asystole, (not breathing), and was unresponsive and pulseless.
4. TK is seen hovering near the taxi but at 4:46pm he moved swiftly into the ED waiting room. This move corresponds to the arrival of a police paddy wagon into the carpark at Mt Druitt Hospital.
5. TK is then seen 17 seconds later leaving the Emergency waiting room through a back area that is away from the carpark exit.
6. Senior Constable Males approached the taxi and spoke to Ms Tairi outside the hospital.
7. At 4:58pm TK re-entered the emergency waiting room and is seen sitting with the brown bag that he has had with him since arrival at the hospital. He does not communicate with Ms Tairi and sits some rows away from her. At times he goes through and looks at things in the bag.
8. Ms Tairi is seen talking to SC Males at 5:05pm in the waiting room and a minute and a half after that, TK gets up and leaves again.
9. Mr Halatoa is pronounced deceased at 5:15pm.
10. At 5:18pm DSC Whiteley and Sgt Baran spoke to Ms Tairi in the waiting room. By this time Ms Tairi has for the third time given a version of the stabbing having occurred outside the IGA. She started to draw a "mudmap" of where the IGA was for Sgt Baran, but he asked her whether she will come to the police station to make a statement and she agreed so he did not continue obtaining any details from her, although he did make a note of the accused's name.

The arrest of the accused

1. The time police arrived at the accused's unit is not entirely clear but was likely some time shortly before 5:50pm. The doors to the accused's apartment were locked and it took some time to find the key. Ms Ioramo assisted the accused and found the key in a bedside table drawer. SC Campbell arrived at about 5:50pm. He says that at that stage DSC Barr was already there talking to the accused through the closed door.
2. The accused was placed under arrest, for assault initially and then for murder. His facial injuries were noted and photographs taken outside the unit block prior to his being conveyed to Mt Druitt Police Station. The photographs show a severely beaten, bruised and swollen face, particularly on the right side, with the right eye swollen completely shut and the left eye swollen almost shut.

Medical assessment of the accused at Nepean Hospital

1. The accused was admitted to Nepean Hospital at 7:41pm. He was assessed and found to have "massive facial trauma, query ICH (intracranial haemorrhage), query facial fracture, query cervical fracture, query fractured ribs and query pelvic fracture.
2. A CT of the head and facial bones was performed which was reported: "no convincing evidence of an intracranial haemorrhage is identified however is not entirely excluded". It is noted in the discharge summary that the accused was "admitted for 6 hrs of observation given artefact on the scan".
3. The discharge summary was explained by Dr Pisani, an emergency specialist, to indicate that on examination the accused had a number of soft tissue injuries to his face and head, including bruising to his mouth, and some right shoulder tenderness. His right eye was massively swollen and unable to be examined. Whether he had double vision was unable to be assessed due to swelling. He was noted to have bilateral subconjunctival haemorrhages, with the right much more severe than the left. He was noted as discharged at 3:42am.

Crime scene inspection - was there damage to the door?

1. Detective Senior Constable Parker attended the accused's apartment at about 8:00pm on 28 February 2018. She said that as a crime scene officer she looked at the entrance way, the door itself, for signs of damage to suggest forced entry, or any items of interest such as DNA "like blood or something like that". She saw damage to the internal door handle on the screen door but did not notice any other damage and did not record any signs of forced entry.
2. In cross-examination DSC Parker agreed that there was at that point minimal knowledge as to what had happened and that she had been advised by Officer Whitely by phone that she believed the "victim of witness attended location to visit the person of interest" and "an altercation occurred where the victim was stabbed". She agreed that the focus was on blood and fingerprints, but she would not agree that she would not have assessed the entry point. She does not recall whether she checked whether the door was functional and would close and lock. It was propped open by a table when she arrived.
3. At 9:30am on 1 March 2018 Sergeant Schenke from the Homicide Squad visited the premises and inspected the front door and observed the door lock to be damaged which he described as "damage to the door strike" which is the hole in the door frame where the lock goes into. There was a crack in the timber. Whilst he agreed that he was not providing the court with an expert opinion that the door was in fact forced, he noted this damage as something that could be consistent with forced entry.

DNA assessment of blood spots and smears

1. A crime scene sketch in evidence indicated no blood at all found in the unit other than "blood stained tissue" noted on the bedside table in the bedroom. A small silver knife was found on an indoor fuse box near the kitchen. It had a serrated edge. A swab from a blood mark on the blade of the knife was compatible with Mr Halatoa's DNA, but testing of a swab from the tip was unsuccessful.
2. There were was a drop of blood on the stair, a drop of blood on the base of the railing on the first floor and another on the tiles on the ground floor of the accused's block of units as well as light smears of blood on the railings that go down the stairs from the accused's unit. The DNA results indicated these were all compatible with TK's DNA.
3. There was also a swab taken from blood on the floor at 2 Balleny Place that was compatible with TK's. Other swabs were taken of smears of blood on the back seat and the boot of the taxi. These were also compatible with TK's DNA.
4. Mr Halatoa's blood was found at 2 Balleny Place in the foyer and in the front courtyard near the letterboxes. Crime scene photos show only small amounts of blood.

Post mortem findings of relevance

1. Dr Maistry carried out an autopsy on 5 March 2018. She identified the cause of death as a stab wound to the posterior medial chest wall. The wound was 20mm in length. The wound track went forward, medial and slightly downwards. It travelled through the skin, the subcutaneous tissue, the intercostal muscle between ribs 6 and 7, and perforated the posterior surface of the lower lobe of the lung.
2. Dr Maistry noted that in travelling past the sixth rib, there was a sort of cut or indentation on that part so when it went through, it cut or nicked the rib in that area. She said that there must have been "not insignificant" force exerted.
3. Dr Maistry also observed facial abrasions on Mr Halatoa and noted a number of abrasions on the right hand on the knuckle area which she agreed could have occurred in some form of altercation.

What the protagonists knew about each other prior to 28 February 2018

1. I accept as true that the accused had been assaulted and robbed by TK in 2017. On 30 January 2017 at 2:00am the accused called the police and complained that he had been bashed and robbed by TK. He said that TK had taken his car and his phone and a computer. Senior Constable Deen said that he found the accused difficult to understand and that he thought he was drug affected because he said things like "I am the king of spirits" and "the spirits control me". Senior Constable Deen did little if anything to investigate the assault and robbery, although he took photos of the accused which showed the accused's face severely bashed. SC Deen did not press charges against TK and instead charged the accused for possession of Ice. TK denied in his evidence that he had bashed the accused in 2017, but I do not accept TK as a truthful witness and I am not surprised by his denial.
2. TK said that he had known the accused for about a year. He claimed that there was no "aggro" and they had never had an argument. He had met the accused at the Town Tavern, Blacktown. He saw him around a bit. He knew people were getting drugs from him. He smoked Ice with him "too many times", 30 or 40 times, in cars and at the accused's place in Blacktown. Sometimes he would buy Ice from the accused and sometimes the accused would give it for free and sometimes he swapped things for Ice. He said he had been to the accused's current apartment "3 or 4 times", and that Ms Tairi had been there each time. He knew Ms Tairi "as in a drug relationship friend". He had met Thomas Halatoa in jail in 2017.
3. The accused said that he did not know Thomas Halatoa at all and there is no evidence before me to the contrary. The accused had known Ms Tairi for some years, but was distancing himself from her because she always came for drugs and never paid.
4. Ms Tairi said that she knew the accused "through smoking meth". She claimed in her evidence to have only known the accused for "a couple of months", but when pressed on the fact that she had told police in her ERISP that she had known him for two years, said "Yeah, I don't know. Yep". I accept that she and the accused had used Ice together at his house and that he would give it to her for free but that there was a falling out over her never paying and she had not seen him for over 6 months.
5. I find that the accused did not agree to TK, Ms Tairi and Mr Halatoa attending his apartment and that he was scared of TK and had been bashed and robbed by him before. He knew Ms Tairi as someone who always wanted something from him - usually Ice - and he would not have agreed to them coming to his apartment had they asked.

What did Mr Halatoa, TK and Ms Tairi do on 28 February 2018 before arriving at the accused's apartment?

1. TK, Mr Halatoa and Ms Tairi were recorded on CCTV footage at Blacktown station at 2:30pm that afternoon. The footage shows Mr Halatoa, TK and Ms Tairi clearly wearing the same clothes they were seen in on CCTV footage taken at Tregear shortly after 4:00pm. At some point that afternoon, the three of them planned to attend the accused's apartment for the purpose of obtaining Ice from the accused. I am unable to conclude whether Ms Tairi was in on a plan to bash and rob the accused, or precisely when the plan to bash and rob the accused was made.
2. They caught a taxi together from Mt Druitt to the Tregear shops and walked to the apartment block. I find that no contact was made with the accused to ask him whether they could visit, or to warn him that they were coming. To the extent Ms Tairi gave evidence to the contrary, I reject it. I conclude that this was because they wanted to surprise him and to ensure they had the upper hand and could manipulate and/or bully him into providing them with, at the very least, Ice to smoke, without paying for it. I also find that none of them had won money on the pokies and that none of them had money to pay for drugs, or if they did, that they did not intend to use it to pay for drugs.

What happened in the apartment?

1. I find that the front door to the accused's apartment was forced open. I reject Ms Tairi's account that the accused came out to the balcony and I reject TK's account that the accused opened the door to them.
2. I accept that the accused passed around the Ice pipe to placate the trio, hoping that would make them leave. I accept the accused did not want them there and was scared and intimidated by their presence.
3. I find that at some point, TK and Mr Halatoa decided to bash and rob the accused and they executed that plan by TK taking the accused into a chokehold and Mr Halatoa and TK both bashing him. I accept that at some point, the accused lost consciousness and when he came to, he was dazed and confused and scared.
4. Somehow the accused obtained a knife, I am unable to find from where, and stabbed Mr Halatoa, but I am unable to find where and when within the apartment this stabbing occurred. I am unable to conclude whether TK was still physically present in the room when the stabbing of Mr Halatoa occurred, but the evidence of the neighbours that the three all ran down the stairs together, suggests to me that he was still in the apartment, if not in the same room.
5. I cannot make a finding, nor do I need to, as to whether and at what point the knife wielded by the accused made contact with TK's left arm.
6. I reject TK's account of carrying or assisting Mr Halatoa. The evidence of the neighbours, in particular Fay Masters, and the CCTV footage indicates that this allegation is untrue. The evidence of Ms Masters is also inconsistent with TK's account of leaving his jacket in the apartment, pulling off his t-shirt to bandage his cut arm and being left in a singlet with the jacket only being returned to him in the taxi.
7. I find that when Mr Halatoa was stabbed, all three ran out and down the stairs, Mr Halatoa first, followed a few steps behind by TK and then Ms Tairi and that they ran in that formation down the path, past Ms Masters' villa to Balleny Place where Mr Halatoa collapsed.

What the psychiatrists say about the accused's state of mind at the time of the stabbing

1. The accused's state of mind at the time of the stabbing is a critical issue in this trial and is an issue significantly informed by the expert opinions of Dr Furst and Professor Greenberg, which I accept in full. Professor Greenberg said in his report, having taken a full history and assessed the accused and reviewed the Justice Health records: "The accused's severe mental illness resulted in significant impairment in his capacity to properly assess the circumstances that he found himself in, such as to make it more likely that he thought it necessary to act in self-defence. I base this view of significant impairment in his capacity to properly assess the circumstances on his prevailing psychotic illness, a degree of intoxication with ice, his anxiety, fear and apprehension of the two males, his elevated blood sugar level, being choked and assaulted, being robbed and that he alleges he saw TK had a knife on his person".
2. Professor Greenberg explained the effects of the impairments of the accused in this way in his evidence: Q: In relation to Mr Quintana, at the time of this particular, these events, it is likely that he was assaulted, restrained, and was having property taken from his house, and confronted by at least two people, would those events be more difficult if someone with schizophrenia to react to than the ordinary person? A: Yes possibly. Q: Is that because the capacity to reason through the various alternative mechanisms of responding would be impaired by the schizophrenia? A: Yes, in addition to other things such as paranoia, yes. Q: What are those other things that you say in addition to, or what other things are you referring to there? A: Well he has this perplexing sort of quite systematised delusion about the spirits, the spirits have not left him, and most people, 98 percent of people, the spirits do leave them when they are born, their names are called and then the spirit leaves, but he believes his name was never called and so therefore the spirit is still with him, and because he has the spirit, the spirit reads his mind and all people who have their spirits removed can read his mind, so they now understand what he doing, where he is at any time, and that impacts on his perception about his environment. He believes that he is being in some way interfered with, but, not in the sense that it is, he is acting on it, at any time, but just in a general sense he feels that people read his mind. Q: Is that itself load upon that capacity to respond or react quickly to events as they happen? A: I think that is separate. That is more to do with his positive symptoms. His delusional beliefs, his false beliefs, chronic false beliefs I should say, his ability to react to events quickly, to do with his processing speed or his executive functioning which is more to do with his negative symptoms. Q: In addition to his schizophrenia, is it your understanding that Mr Quintana suffered from uncontrolled diabetes? A: Yes. Q: Would that have an impact on his cognitive functioning? A: Uncontrolled because he is a diabetic, he didn't take any medication for the diabetes, it would impact on his cognitive function as well because, high levels of glucose can make individuals with diabetes have fatigue and slower in their thinking processes. Q: Is it your position that to understand Mr Quintana's situation or thinking processes, at the time of the stabbing, is there any one particular factor that should be given priority or is it a combination of circumstances that he was in that is relevant, including schizophrenia diabetes the fact that he was under a physical threat, his property robbed in his own home when he had this belief operating in his mind, is it any one of those things or all those things or? A: In my opinion all those things, as a combination, impacted on his abnormality of mind, yes. Q: And would they impact upon the way he responded to the situation he was in? A: Yes, I believe that it affected his reasoning and his judgment, yes. Q: You have been asked some questions about the fact that Mr Quintana has given different accounts of the events of that day? A: Yes. Q: In respect of Mr Quintana, his various medical conditions, might they affect his perception of events in the context of this particular matter where he's, it seems, being robbed and then bashed? A: Yes. Q: Might it increase his perception of being under threat? A: Yes. Q: In what way? A: Well, in a sense that he, indirectly he has a belief that he's been interfered with and these people in his apartment are reading his mind and interfering with him. So indirectly he has an underlying sort of paranoid thinking, not an immediate threat in terms of thinking, but an underlying paranoia of people reading his thoughts, and the people in his apartment at that time also having that ability, yes. Q: In terms, then, of that decision of whether to, in effect, fight or run when confronted by this threat, would his capacity to reason about those questions have affected by his mental illness? A: It's possible, yes. Q: Again, in what way? A: In the sense that he has a perception that his only alternative is to defend himself, yes, and his property I suppose. Q: Coming to that again, does his capacity to bring into play that thinking, his executive function; in other words, his capacity to responded quickly to events, does that come into play in relation to that issue? A: Yes. As I said, it is possible because his thinking is not always rational or reasoned as to a normal person. His thinking is influenced by a host of factors, including the fact that he has chronic schizophrenia.
3. Dr Furst said this in his report, having also taken a history, reviewed the clinical records of Justice Health and assessed the accused: "I am of the opinion that it is likely that Mr Quintana's severe mental illness, including bizarre and fixed paranoid delusions present at the time, made him more vulnerable than the average person to perceptions of threat to his personal integrity and safety from the deceased and/or other persons present in his unit at the time, TK especially, as he believed that other people had the capacity to read his mind and control him. I am also mindful of evidence suggesting TK seriously assaulted the accused 9 months prior, which would have probably made him more fearful for his safety than if he had never previously been assaulted by TK. Therefore I am of the opinion that Mr Quintana's severe mental illness in the form of treatment resistant schizophrenia, coupled with his chronic and bizarre paranoid thoughts, distorted his perception of reality and his past experience of being assaulted by TK likely resulted in a significant impairment in his capacity to properly assess the circumstances that he found himself in on 28 February 2018 at his unit in Tregear, such as to make it more likely that he thought it necessary to act in self-defence".
4. Dr Furst elaborated further in his evidence about the role of the illness on the accused's perception of events: Q: If I can turn to the role that this illness may have had upon the accused at the time of the event subject to this trial. In terms of the accused's perception of events, what's your view about whether his illness impacted upon his perception of events? A: I think his illness is relevant; in other words, the schizophrenia illness is relevant. Firstly, because the accused is a person who has this particular delusion about spirits and people being able to read his mind because of his own spirit and some deficit which Dr Greenberg went into earlier today, and which has also been evident in his dealings with Justice Health staff. So it would be reasonable to conclude that the delusions evident since his arrest were present at the time of the offence in question, the alleged offence in question. Therefore, if you put yourself in the shoes of the accused, and two or three people are in your unit with you, you would have to assume he believes those people can read his thoughts and read his mind. That has a bearing on his perception. Q: Would it have a bearing upon his feelings of vulnerability? A: Yes. Q: In what way? A: Well, I guess it is like being mentally I guess the simple analogy would be someone being naked, a bit vulnerable because they're exposed and naked, but he's mentally naked because all his thoughts are exposed to people around him. That kind of vulnerability, it is hard to describe. I think in terms of understanding the dynamics, you need to understand dynamics from the point of view of the impaired person, and how they perceive the world around them. All I am really saying in this scenario is that before, we go into any other details, the very fact that he has untreated schizophrenia, treatment resistant schizophrenia, and believes everyone can read his thoughts, puts him in a vulnerable position. So I am talking about not delusional, paranoid thoughts about the accused, I am just talking about like believing that he might be killed or seriously wounded because people are in your apartment and people are beating you up, choking you, whatever it might be, those, because you have a schizophrenic illness and because you are not one hundred percent rational you may be more inclined to think you are going to be killed than a person who didn't have schizophrenia. Q: In other words your illness in that sense would increase your fear of the outcome? A: I think so. I think yes I think the presence of, people with schizophrenia often believe they are going to be killed anyway, even just walking around the neighbourhood, so that is a common emotion they have, being followed, being tracked, people after me, going to kill me, I hear that a lot. So if you imagine people in that cluster of serious mental illness, probably the most serious mental illness in psychiatry, because they have vulnerabilities towards this kind of thinking, if someone comes into your unit or you are in a situation which is threatening, where there is, whatever it might be, for physical force, words or blows inflicted upon you, that would be a reasonable or a common or reasonable scenario.

Has the Crown proved beyond reasonable doubt that the accused intended to inflict GBH on Mr Halatoa?

1. I find that the death of Mr Halatoa was caused by the act of stabbing carried out by the accused in the apartment. Whilst the accused has said in some accounts that he does not recall stabbing Mr Halatoa, I have concluded from the accused's conversation with Ms Ioramo shortly after the stabbing in which he referred to an awareness of having stabbed someone, the presence of the knife found in the apartment with Mr Halatoa's blood on it and the forensic evidence of Dr Maistry, that the accused in fact stabbed Mr Halatoa "with not insignificant force", sufficient to pierce the structures that he did. From that act, I can and I do infer an intention on the part of the accused to inflict grievous bodily harm on Mr Halatoa. The accused wanted the men to leave, and this was how he sought to achieve it.

Has the Crown proved beyond reasonable doubt that the accused did not believe that he had to do what he did in order to defend himself?

1. The Crown case is that the accused stabbed Mr Halatoa with intent to cause grievous bodily harm because he was angry at again being bashed and robbed, and that he was "sick of this shit".
2. As stated by Dr Furst, and as is clear from his evidence and that of Professor Greenberg, it is just not that simple.
3. The accused had three intruders that he tried to placate with drugs. One of them, TK, is a huge strong young man, another he knows as a manipulative Ice addict and the third is a young man he does not know. The men had seriously bashed him. TK had bashed and robbed him before, and the accused knew that TK spends his life in and out of jail.
4. The accused's belief as to what he had to do to defend himself was clearly informed by these facts, as well as shaped fundamentally by the effect of his mental illness on his perceptions as set out so eloquently in the evidence of Dr Furst and Professor Greenberg.
5. The Crown has not met its onus to persuade me beyond reasonable doubt that the accused did not believe that it was necessary to do what he did in order to defend himself.

Has the Crown proven beyond reasonable doubt that what the accused did was not a reasonable response in the circumstances as he perceived them?

1. As to the second limb under s 421 of the Crimes Act, I am not satisfied that the Crown has discharged its onus to persuade me beyond reasonable doubt that the accused's response was not a reasonable response in the circumstances as he perceived them.
2. Whilst the evaluation of the reasonableness of his response is a matter for me as the tribunal of fact to objectively determine, this limb too is informed by the subjective question of what the accused perceived the circumstances to be.
3. He was a 58 year old man in poor health. The two men bashed him severely and choked him to unconsciousness. They would not leave. He had no obligation to wait to be bashed again and was entitled, as the law recognises, to defend himself.
4. As explained by Professor Greenberg and Dr Furst, his perceptions of his vulnerability and the risks to him were heightened by the effects of his mental illness.
5. Further, and practically speaking, his options were limited. All three were younger. They were there for anything they could get, and the men had demonstrated that they were prepared to bash him severely to get it. He had no prospect of physically overpowering the two men.
6. The question of whether the Crown has negatived self-defence is not to be decided based on calm reflection and dissection in the Courtroom, but bearing in mind what I find on the evidence was the reality of the circumstances in which the accused found himself, and how he perceived them at that time.
7. The Crown has failed to meet its onus in regard to self-defence.

VERDICT

1. Accordingly Rey Quintana, on the indictment presented on Monday 2 November 2020, I find you not guilty of murder.
2. The accused is discharged.

Endnotes

1. R v Hutchison & Wilkinson [2018] NSWSC 1759 at [46]
2. Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2 at [9]
3. R v Quintana - Transcript of proceedings, 3 November 2020, at T100.6-11

Amendments 14 December 2020 - "of" in last line changed to "or" in paragraph [180] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 December 2020