R v Saliba (No 3) [2025] NSWSC 296 | Case summary | Zoe

NSWNSWSC

R v Saliba (No 3)

[2025] NSWSC 296

Supreme Court of NSW|2025-04-02|Before: Yehia J

View on NSW CaselawOr email me a plain-English summary of this case

General information, not legal advice.

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2025-04-02

Before

Yehia J

Catchwords

CRIMINAL LAW – murder – trial by judge alone – alleged
stabbing by the accused of his cousin – whether it
was a deliberate act of
the accused that caused the fatal wound – whether the accused intended to

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Catchwords

CRIMINAL LAW – murder – trial by judge alone – allegedstabbing by the accused of his cousin – whether itwas a deliberate act ofthe accused that caused the fatal wound – whether the accused intended tocause grievous bodily harm– manslaughter by unlawful and dangerous act asan alternative to murder – whether the prosecution has excluded thereasonablepossibility that the accused acted in self-defence – not guiltyof murder – guilty of manslaughter

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: R v Saliba (No 3) [2025] NSWSC 296

Hearing dates: 11 – 14 March 2025, 17 – 20 March 2025, 24 – 26 March 2025

Date of orders: 2 April 2025

Decision date: 02 April 2025

Jurisdiction: Common Law

Before: Yehia J

Decision: Dominic Saliba found not guilty of the murder of Bailey Jones, but guilty of manslaughter.

Catchwords: CRIMINAL LAW – murder – trial by judge alone – alleged stabbing by the accused of his cousin – whether it was a deliberate act of the accused that caused the fatal wound – whether the accused intended to cause grievous bodily harm – manslaughter by unlawful and dangerous act as an alternative to murder – whether the prosecution has excluded the reasonable possibility that the accused acted in self-defence – not guilty of murder – guilty of manslaughter

This is a tragic case involving the death of an 18-year-old man, Bailey Jones (“the deceased”), upon sustaining a fatal wound to his upper chest on the evening of 9 December 2022. The events on that evening resulted in the arrest and charge of Dominic Saliba (“the accused”) who is the deceased’s cousin. Mr Saliba was only 20 years old. He was charged with murder.
The family and friends of the deceased as well as the family and friends of the accused have followed the proceedings and are obviously interested in the outcome. I acknowledge the distress and anguish the evidence may have caused interested parties. The deceased’s family have lost a loved one. That loss was far too premature and in circumstances where the deceased was only 18 years old and had his whole life to look forward to.
The accused’s parents and family have sat through the trial of their son charged with murder and are no doubt worried about him and anxious about the result of the proceedings.
It must be noted from the outset, however, that notwithstanding the tragic events, my role as the tribunal of fact is to firmly put aside any sympathy that I may have for anyone either directly or indirectly involved in the trial.
I must also put aside any prejudice that I may hold in relation to the subject matter of the trial, or any other aspect connected to the trial. As I will address in more detail below, my role is to consider the evidence objectively, impartially, and forensically in order to determine whether the prosecution has established its case against the accused to the high standard required by law, namely, beyond reasonable doubt.
It should also be observed that unlike a jury trial where a verdict of guilty or not guilty is returned with no more said about the reasoning underpinning the verdict, I am obliged to set out my findings and the reasons for my verdict or verdicts. In doing so, I must consider the evidence dispassionately and forensically.
In conducting that process, I must proceed on the evidence that I accept and according to the applicable legal directions that I am bound to apply.

I may believe the whole of what a witness says, I may disbelieve the whole of what a witness says, or I may believe one part and disbelieve another part of a witness’s evidence. Obviously, a witness may be honest and accurate, honest but mistaken, or dishonest in relation to any one, or more, aspects of the witness’s evidence.
Each witness has given evidence about things they said they remembered. How well a person might remember something depends upon many different factors, including that person’s capacity to lay down an accurate memory in the first place; their capacity to retain that memory and its associated detail; and their capacity to recall the memory and articulate it.
The subject matter of an event is also a relevant factor to memory. Some events themselves are of little, or no, consequence, and any memory is retained for a short time only and then gone. Other events are of greater importance in consequence, such that one might remember them for a relatively long time, although, perhaps over time, aspects of the detail of the memory, or the parts one considers to be of no real consequence, might fade.
All of these common-sense factors might impact what someone might be able to remember of an event, or how clearly, they might remember it. What I must decide in relation to the evidence of a particular witness, is whether I consider their evidence to be sufficiently reliable such that I can act upon it.
Reliability depends upon two quite different, but overlapping, factors. One factor is the witness’s honesty. The other factor is the witness’s accuracy. There are many factors that can have a bearing upon a witness’s honesty. In considering the question of honesty, I might consider the impression the witness made upon me. Demeanour and impression are important and valid factors to take into account. Did a particular witness impress me as someone doing their best to be truthful, or did the witness impress me as someone deliberately trying to deceive me? Did the witness appear evasive, or prone to exaggeration or embellishment? Did the witness demonstrate an ability to listen to the question and answer what was asked? Did the witness concede that he or she has lied previously?
Although demeanour and impression are matters that I am entitled to take into account, I must bear in mind that witnesses can be affected by the stress and anxiety of giving evidence in legal proceedings. A witness might be anxious, worried, or embarrassed. These observations apply equally to prosecution and defence witnesses. Demeanour and impression alone do not determine the honesty, or accuracy, of the witness’s evidence.
If I conclude that a particular witness has been doing his or her best to be honest, I will need to move to the second aspect of reliability, which relates to a witness’s accuracy. A witness can be perfectly honest and accurate, or perfectly honest, yet completely, or partly, inaccurate.
To determine how accurate a particular witness’s evidence is, I may look to a number of factors. How carefully did the witness observe the event, or the matter, about which they were giving evidence? Was the witness calm and composed at the time of the event, or affected by any emotion such as stress, panic, or fear, or by an intoxicating substance, such as alcohol, that might have impacted their powers of observation and/or laying down of an accurate memory?
How important to the witness were the surrounding details of an incident, or event, such that the witness focused on committing to his or her memory all aspects of the event, as opposed to what the witness perceived to be significant parts of the event? Has the witness provided a consistent account of the incident or event? Is there evidence capable of giving rise to an inference of suggestibility, or contamination, such as to make the evidence, or parts of the evidence, of a particular witness unreliable?

The accused has raised the issue of self-defence. In the event that the Crown has established beyond reasonable doubt that it was the act of the accused that caused the fatal wound (a stabbing in this case), the accused’s case is that he believed that his conduct was necessary to defend himself.
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.
This right arises where two circumstances exist. The first is that the person believes that their act was necessary in order to defend themselves. The second is whether what the accused did was a reasonable response in the circumstances as they perceived them.
Although “self-defence” is referred to as a defence, it is for the Crown to eliminate it as an issue by proving beyond reasonable doubt that the stabbing was not done in self-defence. It may do this by proving beyond reasonable doubt that the accused did not believe, at the time he stabbed the deceased, that it was necessary to do what he did in order to defend himself.
Assuming that all the elements of murder are established beyond reasonable doubt, if I decide that the Crown has failed to prove that the accused did not have such a belief, then the appropriate verdict is one of not guilty of murder. If that is the case, it will be necessary for me to consider manslaughter.
As to whether the accused may have personally believed that his conduct was necessary for self-defence, I must consider the circumstances as the accused perceived them to be at the time of that conduct.
It is his perception that must be considered and not what someone else might have perceived. 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 to be in. In hindsight, it might be thought that the accused was mistaken in believing that it was necessary to do what he did, but that does not matter.
If the Crown establishes beyond reasonable doubt that the accused did not personally believe that his conduct was necessary for his defence, then the Crown will have succeeded in eliminating self-defence. Provided all of the other essential elements have been proved, I should find the accused guilty of murder.
On the other hand, if I am not satisfied that the Crown has proved beyond reasonable doubt the first aspect of self-defence, I will then have to consider the second aspect of self-defence, namely, whether the Crown has satisfied me beyond reasonable doubt that the conduct of the accused was not a reasonable response to the circumstances as perceived by the accused.
The issue for me to consider is, having regard to the circumstances as they were perceived by the accused, whether his response was unreasonable, or excessive. Whether it was, or was not, a reasonable one in those circumstances, is a matter for my judgment.
To summarise, there are two parts to self-defence, and in relation to both of them, the Crown bears the burden of proof. It is not for the accused to prove that he was acting in self-defence. It is for the Crown to prove that he was not. This involves two questions:
has the Crown proved beyond reasonable doubt 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?
has the Crown proved beyond reasonable doubt that the stabbing by the accused was not a reasonable response in the circumstances as he perceived them?
If the Crown has failed to exclude the reasonable possibility that the accused believed that it was necessary to do what he did in order to defend himself but has established that his response was not a reasonable one in the circumstances as he perceived them, then the appropriate verdict would be not guilty of murder, but guilty of manslaughter.
If I am not satisfied beyond reasonable doubt that the Crown has established one or more of the elements of murder (as set out at [31]), then I would find the accused not guilty of murder and consider the issue of self-defence in the context of whether the Crown has established the elements of manslaughter beyond reasonable doubt.
For the Crown to establish manslaughter by unlawful and dangerous act, the Crown has to establish beyond reasonable doubt that the intended act of the accused that caused death was unlawful. To do so, the Crown must disprove self-defence beyond reasonable doubt.
If the Crown has established beyond reasonable doubt that the accused did not believe that his conduct was necessary to defend himself, then the Crown would have established that the act was unlawful and, assuming I am satisfied beyond reasonable doubt that it was also dangerous, the verdict would be guilty of manslaughter.

There are no eyewitnesses to the act that resulted in the deceased sustaining the fatal wound. Instead, the Crown relies upon a number of circumstances, including asserted admissions by the accused, to establish his guilt. What follows is a summary of the evidence adduced at trial. I will not be reproducing all the evidence. I have had the benefit of the transcript of the evidence during my deliberations.
Dr Bernard I’Ons is a forensic pathologist who was called to give evidence in the Crown case. I intend to summarise his evidence separately in the context of directing myself in relation to expert evidence.
Some of the evidence is not in dispute. The father of the accused and the mother of the deceased are brother and sister. For a period of some five years the families had little or no contact. However, in the 18 months prior to 9 December 2022 (and particularly the 6 months preceding 9 December 2022), the accused and the deceased saw each other regularly and became close.
At the relevant time, the accused was residing at an address in Bomaderry. This was his parents’ house. His parents stayed there occasionally but were not in residence on 9 December 2022. Also staying there at the relevant time was the accused’s girlfriend and two young men. Those men were Jaemon Elfverson and Matthew McAnally.
On 9 December 2022, the accused, his girlfriend and the deceased drove to Stockland in Nowra. They attended Moe & Co., a barber shop where the deceased and accused had a haircut. Mr Elfverson worked at Moe & Co. At about 4:30 or 5:00pm they returned to the accused’s home. Travelling with them was a friend, Lachlan Hannagan (“Hanno”).
On the afternoon of 9 December 2022, the deceased, the accused, his girlfriend, and several young men were present at the accused’s home. All the men were in the garage, talking, listening to music, some drinking, some smoking cannabis. It was in the kitchen area that the deceased sustained the fatal wound. During his evidence, the accused marked the floor plan depicting his movements and that of the deceased at the time the deceased sustained the fatal injury (Exhibit 3).
The mechanism causing that injury, the events that occurred in the minutes that the deceased and the accused were in the house together, and the intention of the accused are all matters about which there is dispute.

Mr Hannagan gave evidence that upon their return to the accused’s home, “Jordie” and “Matt” were present. The group of males were “chilling” in the garage. Mr Hannagan was drinking pre-mixed Jack Daniels and Coke. He did not believe that the deceased was drinking alcohol on that day.
Jaemon Elfverson was dropped off at the house where he joined the group. While the group was in the garage, Mr Hannagan observed the deceased and the accused having a bit of “banter”, “taking something” and saying, “this is mine, this is mine”. The deceased picked up a plastic white tub from a table in the garage, saying: “this is mine”. The deceased’s medicinal cannabis was contained in a white canister.
According to Mr Hannagan the initial interaction between the two men appeared to be “mucking around”, or a “spar”, which he initially described as each male punching the air. Mr Hannagan gave evidence: “it was just like more a muck around at the start. Like, one hit for one hit, kind of thing. And then it got a bit serious after, I think, Bailey, like, put it over the top of him and what not. And then it just went south from there”.
An attempt was made by me to clarify what he meant by Bailey “put it over the top of him”. Mr Hannagan could not explain what he meant by that phrase.
After the deceased picked up the plastic white tub from the table, Mr Hannagan observed a change in the accused’s demeanour. He described the accused becoming “enraged”, “geed up” and started to raise his voice.
The “sparring” over the tub lasted for less than a minute, maybe 45 seconds. Mr Hannagan’s account is that the deceased then went into the house through the entrance from the garage to the kitchen, followed immediately by the accused.
He was challenged in cross-examination in respect of his evidence about the order in which the men entered the house. He maintained that it was the deceased who entered the house first, followed by the accused. As will be seen, this evidence is inconsistent with the evidence of Mr Elfverson who said that the accused entered the house first, followed by the deceased.
Mr Hannagan did not see what took place in the house but heard noises that he described as “thuds”. He next saw the deceased coming back into the garage holding his chest. The deceased was unable to speak and looked shocked. Mr Hannagan asked the deceased what was wrong but there was no answer. When the deceased removed his hands from his chest, Mr Hannagan saw blood and observed that the deceased was about to pass out. Mr Hannagan estimated that the time between the two men entering the house and the deceased coming back into the garage in this state, was between 15 to 30 seconds.
Mr Hannagan was one of the individuals who made a triple zero call. Amongst other things he told the operator that: “ah, so my mate slipped… like, we were around the barbecue area”; “he snapped himself”; “he tripped and he landed on a knife”; “like a, like a, like a skewer”. Mr Hannagan asserted that he was told to say these things by the accused.
He was challenged in cross-examination about this assertion. It was put to him that the only thing that the accused said to him was that “he tripped on a knife”. He rejected that proposition.
In his evidence-in-chief, Mr Hannagan refreshed his memory from his statement, before giving evidence that upon the attendance of police, and when asked a question to the effect of who had witnessed the incident, the accused responded: “us three”, referring to himself, Mr Hannagan and Mr Elfverson. The Crown relied upon that representation by the accused as a lie told during a process of weaving a false story about what had happened. Mr Hannagan and Mr Elfverson were not present and did not witness the incident that caused the fatal wound.
Mr Hannagan also gave evidence that before the police arrived, he saw the accused walk to the top of the driveway. The accused was speaking on his phone. Mr Hannagan heard him say: “I fucked up. I fucked up. I fucked up”. His evidence in that regard was not challenged.
Mr Hannagan agreed in cross-examination that “sparring” could also be described as “slapboxing”, that is, where individuals slap each other in a playful way as opposed to seriously attempting to inflict violence.
The witness was played footage depicting him engaging in similar play fighting with the deceased, on the driveway of the accused’s home, earlier that afternoon. A matter of which I am satisfied is that this group of young men engaged in play fighting, also described as slapboxing, on occasion including on 9 December 2022. The slapboxing was a form of physical contact that appears to have been a form of bonding with or relating to each other.
Mr Hannagan’s reliability must be assessed in the context of the whole of his evidence. He was at times certain about an answer, only to be contradicted by objective evidence. For example, he was initially certain that he had assisted the deceased from the garage out onto the driveway after the deceased had sustained the fatal wound. The CCTV footage contradicts that account. Mr Hannagan did not assist the deceased onto the driveway. He was not initially present when the deceased walked onto the driveway after sustaining the injury.
This is an example of where the objective evidence contradicts a witness’s account. It demonstrates that a witness can be certain, and apparently honest, about an account they have given but entirely wrong.
In addition, he agreed in cross-examination that on 11 December 2022 he had contact with Dylan Thornton. He sent Mr Thornton a message: “I was in the garage when it happened, and it got done in the house”. He also messaged: “I don’t remember anything bro, it was a blur to me, especially the last words and stuff”. Although he could not remember the terms of the message, he did not deny its content.
Although Mr Hannagan maintained that the deceased walked into the house first, his evidence in that regard is inconsistent with the evidence of Mr Elfverson, a conflict to which I will return in due course.

Matthew McAnally was one of the young men present in the garage on the evening of 9 December 2022. He was called by the Crown. He could not remember very much at all about the events which are the subject of these proceedings. He said that at the time he was using both cannabis and amphetamines regularly. He was traumatised by the events of that day. He could not remember significant aspects of those events and could not remember much of what he said to the police in his statement dated 13 December 2022.
An application was made by the Crown to cross-examine the witness pursuant to s 38(1)(b) of the Evidence Act 1995 (NSW). The application was not opposed. Leave was granted to the Crown to cross-examine the witness.
Mr McAnally said that he had a poor memory both in respect of what happened on 9 December 2022 and about what he told police in his statement on 13 December 2022. He said that he was in a “bad state of mind” at the time. He was under the influence of drugs and was traumatised by the event. He said that he did not have a clear state of mind when he made his police statement and does not remember making it.
The only detail that he could independently remember was that while seated in the garage smoking cannabis, he saw the deceased walk through the door, move his hand from his chest, and “blood started coming out of his chest”. He remembered the deceased on the ground and the ambulance arriving.
He could not remember seeing the deceased at any time prior to him emerging with his hand over his chest. He was then cross-examined on portions of his statement. He was asked repeatedly whether what he told the police in his statement was the truth. He responded that he did not remember what he told the police so he could not comment whether it was the truth or a lie.
The witness remembered seeing the accused after the deceased was injured. He was standing outside and crying. Under further cross-examination by the Crown, he was referred to his statement where he told police that he saw the deceased walk into the garage through the door into the kitchen. He could not remember making that observation or saying that to the police.
The Crown cross-examined Mr McAnally about lies he told the police when they attended the premises. He maintained that he could not remember what he said to police and could not comment on whether it was the truth or a lie. Eventually he agreed that he lied when he initially told the police that he was on the driveway with Jordan Mitchell, when the deceased came out of the house injured.
Mr McAnally agreed that on 12 December 2022, the day before he made his statement, he attended the accused’s premises so that he could pick up his belongings. He was taken by the Crown to text messages sent by him which suggested a false account as to how the deceased was injured.
He was also referred to listening device product which captured a conversation between himself, the accused, and Mr Elfverson, on 12 December 2022 when he returned to the accused’s home to pick up his belongings. Relevantly, the conversation included the following:

Mr Jordan Mitchell was also present in the garage on 9 December 2022. He was smoking cannabis and drinking alcohol. Almost immediately during his evidence-in-chief, he said that he could not remember the events of 9 December 2022 or making his statements to police on 18 December 2022 and 12 January 2023.
The Crown made an application to cross-examine the witness pursuant to s 38(1)(b) of the Evidence Act. The application was not opposed. Leave was granted to the Crown to cross-examine the witness in relation to both statements and a diagram sketched by him at the time he made his first statement to police.
In 2022, Mr Mitchell was living in Bomaderry. He came to know the accused about six months before 9 December 2022 and became good friends with him. He met a number of other men through the accused. He had known the deceased for some time because they had played football against each other some years before.
Portions of his statements were put to him by the Crown in cross-examination. He responded by claiming that he could not remember the events of 9 December 2022. He was unable to comment as to whether the accounts he gave the police were accurate and truthful because he could not remember.
Relevantly, he told police that “about two or three minutes after, after Bailey had gone inside, he walked back into the garage through the internal door”. “I saw that his face looked really white, he said, ‘I’m going to faint’”.
Mr Mitchell told police that he asked the deceased: “what the fuck happened?” The deceased did not respond.
Mr Mitchell was played his triple zero call. He said he could not remember making it. During that call he told the triple zero operator: “my mate just stabbed himself cause he’d [been] drinking”. It was put to him that that was a lie. He responded: “yeah, I didn’t know what happened, so”.
Mr Mitchell told the police that he had previously seen the accused with the knife that caused the fatal injury. He said: “I noticed it was sitting on Dom’s bedside table in his bedroom”. He agreed that the representation appears in his statement however could not remember, now, seeing the knife previously.
I found Mr Mitchell to be an unimpressive witness. He was not, in my view, making a genuine attempt to recall what he observed. Insofar as his evidence or account to police is supported by surveillance product or digital evidence, it is evidence to which I have had regard. However, in other respects, his evidence is significantly lacking in credibility and reliability.

Notwithstanding Mr Elfverson’s admissions to lying to police in his first two statements, he was a more impressive witness than Mr Hannagan, Mr McAnally and Mr Mitchell.
Mr Elfverson was a friend of the deceased. He had met him about 12 months prior to his death. The deceased introduced him to the accused about one or two months prior to 9 December 2022. Mr Elfverson was essentially homeless at the time and was offered a room in the accused’s house. The witness had been staying there for about one week prior to 9 December 2022. When he moved into the house, Matthew McAnally was already residing there.
Mr Elfverson saw the deceased attend the accused’s home regularly. On 8 December 2022, the deceased and Mr Elfverson had slept at the accused’s house and, on the Friday morning, the deceased drove Mr Elfverson to Moe & Co., his place of employment at Stockland. Later that day, at about 3:30pm, the accused, his girlfriend, and the deceased attended Moe & Co. where the two men had a haircut.
At about 5:30pm on 9 December 2022, Mr Elfverson left his work and went to the accused’s home. Upon his arrival there were already a number of young men in the garage including the accused, “Jordie” and “Hanno”. The deceased was also at the house. Mr Elfverson attended with another man, Saxon McCracken.
Mr Elfverson and the other men were in the garage where the deceased shared with them his “medicinal marijuana”. Mr Elfverson said that he had three bongs between the time he arrived at the house and the time the deceased presented with the injury.
The witness gave evidence that he heard laughing and music in the garage. During the late afternoon he saw the accused and the deceased slapboxing. He described slapboxing as slapping each other’s faces with an open hand, “fun like”.
While the men were slapboxing, the deceased picked up a white canister from the table in the garage. Mr Elfverson had seen two white canisters similar in appearance. One contained the deceased’s medicinal marijuana. The other contained the accused’s cash.
During the slapboxing, the deceased dropped the canister he was holding and the accused picked it up and walked inside the house. The deceased followed the accused into the house.
Mr Elfverson remained in the garage with the other men. He smoked another bong. He heard noises coming from inside that sounded like “banging on the walls”. It was about two or three minutes after the accused and the deceased went inside the house that the witness heard the noises.
The deceased then came back out into the garage followed by the accused. The witness observed blood dripping at the deceased’s feet. He was in pain and said: “I need air”. Before the deceased moved out of the garage, Mr Elfverson heard the accused say: “he fell on a knife”. This representation by the accused was the foundation for the false story that was maintained and repeated in the days following the incident.
Upon seeing that the deceased was in pain and bleeding, Mr Elfverson started looking for the deceased’s keys so that he could drive him to the hospital but was unable to find them. Mr Elfverson called for an ambulance. He confirmed that Mr Hannagan was also on the phone to triple zero.
Mr Elfverson said that the reason he told the triple zero operator that the deceased had stabbed himself, by accident, was because he had heard the accused say the deceased had fallen on the knife.
Police eventually arrived at the scene. He admitted that his initial account to police was false. He lied to police in an effort to protect his friends because he thought that they would get into trouble. He also admitted that in his first two statements, dated 11 and 13 December 2022, he was not truthful. He gave an untruthful version in those statements to protect the accused.
The witness was then taken through a number of digital messages and listening device product. When he messaged his girlfriend that “… Bailey just fell on a knife and stabbed himself”, he agreed that that was a lie based on what he had been told by the accused.
When he messaged his girlfriend: “he was being a dickhead and running at Dom, being an idiot and lost his footing and fell on it”, the witness agreed that was also a lie. He had not seen the incident. He gave evidence that he was not told to say those words but thought that was what happened when he heard the accused say that the deceased fell on the knife. The witness made “an assumption” that the deceased had lost his footing.
Next, a number of conversations between the witness and the accused, captured by way of listening device, were played. Item 74 of Exhibit B and Exhibit D included the following representation by the accused:

Mr Elfverson demonstrated the hand gesture used by the accused during that conversation. The hand gesture was described as follows: the accused held out one hand directly in front of him and brought his other hand, which was in a closed fist, towards the palm of the hand that was held out directly in front. In doing so the clenched fist connected with the palm of the other hand with the side of the clenched fist being the thumb and forefinger side. The witness was unable to say at what level the accused was holding his hands when he made the gesture.
The accused made that gesture twice, corresponding with the slapping sounds on the recording. If accepted, the gesture is entirely consistent with a deliberate act or acts by the accused towards the deceased.
Item 76 of Exhibit B and Exhibit D was played. In that recording Mr Elfverson said: “that’s not you cunt”. He gave evidence that he meant it was not in the accused’s nature to do stuff like this because he had been a good mate.
Mr Elfverson agreed that in the recorded conversations where he said that he had seen the deceased on the floor or implied that he had seen what had happened, he was lying. He was lying to protect the accused, to try to cover up what happened that night. He told the accused that he had made a false statement to police to reassure him.
Mr Elfverson gave evidence that when he was captured saying: “I need to talk to everyone that was here that day. I need, I need everyone here”, what he meant was that he wanted to tell the other men to make up a story or stick with the story, that the deceased had fallen on the knife.
Mr Elfverson had lied to the police in his statements of 11 and 13 December 2022. He lied when he told them that the accused was about 2 metres away from the deceased. He lied when he told the police that the deceased had flashed the knives. He lied when he said that he told the police that the deceased was in front of him pretending he was going to stab him. Those lies were told to protect the accused and get him out of trouble.
The witness gave evidence of the accused trying to get him to tell “Matt” (Matthew McAnally) what to say, namely that he saw nothing. Mr McAnally did not see how the wound was occasioned. Indeed, none of the men who were present at the house witnessed the incident that resulted in the injury to the deceased.
Item 85 of Exhibit B and Exhibit D captured the witness saying to the accused: “you need help bro”. By that he meant that the accused needed to see a counsellor. During that conversation the witness shared with the accused his own experience of blacking out and losing control. He shared that experience so that the accused could relate to it because he had told Mr Elfverson that he had “snapped”. The accused also told the witness that he “just flipped it like, (IND) when I shouldn’t have.”
Mr Elfverson said that what he told the police in his statement of 22 December 2022 was the truth. The truth, as he understood it, was that the accused had stabbed the deceased. He first formed that understanding when he had the conversation with the accused in which the accused made the hand gestures referred to above. That conversation took place on 12 December 2022 between 00:27 and 00:43.
On 22 December 2022 the accused was arrested. Mr Elfverson was spoken to by police on that date. He said that the police told him they would charge him with “accessory” if he did not tell them what they wanted to hear. He was unable to remember whether this conversation took place at the accused’s home or at the police station. He gave evidence, however, that he did not interpret this as a threat and maintained that what he told the police in his statement on 22 December 2022 was the truth.
In cross-examination, the witness agreed that between 9 and 22 December 2022, he and the accused were good mates. The accused had provided a place for him to stay when he was essentially homeless. Mr Elfverson wanted to protect the accused and did not want him to get into trouble. He wanted to provide him with reassurance and agreed that he wanted the accused to think that he was “tough”. From the beginning however he made it clear to the accused and his family that he did not want to get into trouble for something he did not do.
On 9 December 2022, he saw the accused and the deceased slapboxing in the garage and indicated, by reference to photograph 28 of Exhibit M, where he recalled that happening. The pair were mucking around and slapping each other. The witness confirmed each man was engaging in the slapboxing and both had possession of a white canister. The slapboxing lasted between 40 to 45 seconds.
From the descriptions given by the witnesses, it is clear that the slapboxing was a form of play fighting or, as was described in evidence, “mucking around”. It was not serious fighting and did not involve intimidation or aggression.
Mr Elfverson confirmed that after the deceased dropped the canister and the accused picked it up, it was the accused who went into the house first, followed by the deceased. He agreed that the deceased followed the accused within 20 seconds of the accused going into the kitchen.
When the accused walked past the witness and into the kitchen, he did not look angry. He looked normal. Although Mr Elfverson was not watching everything that was happening in the garage because he was editing a video, he was seated on the stairs, the closest point to the screen door, when the accused entered the house. He was in a position to observe the accused. Mr Elfverson was clear in his evidence that the accused did not appear angry. He appeared normal.
In light of the fact that I find Mr Elfverson to be a more impressive witness than Mr Hannagan, and given his location when he made the relevant observation, I prefer Mr Elfverson’s evidence about the accused’s demeanour, as the accused entered the house.
When the accused went inside the house, both the screen door and the wooden door closed behind him. When the deceased followed him, the screen door and wooden door again closed behind him. Mr Elfverson maintained that he did hear the deceased make a noise: “ahhh” and then come back into the garage.
Mr Elfverson agreed that he had seen the “big knife” previously at the accused’s home. He had seen it in the garage. He had seen the accused holding it. He had seen it being played with. On one occasion he saw the deceased playing with it. He had also seen the “other boys” playing with it.
Mr Elfverson confirmed that he formed an understanding that the accused had stabbed the deceased during the conversation when the accused told him that: “I jabbed him three times bra”, accompanied by the gestures already described.
Mr Elfverson agreed that many of his representations captured by the listening devices were efforts by him to reassure, comfort and protect the accused. Some of his representations also suggest that he wanted to assume the role of coordinating what the “boys” would tell police to protect the accused.
He agreed with the following propositions: he intended to speak to the boys who were present at the house; he wanted to know what they were going to tell the police; he was worried about what they might tell the police; he was worried that what they might tell the police would get the accused into trouble; he was trying to help the accused to cover up what happened that night; and, he was trying to cover up what the accused had told him about “flipping the switch”.

The Crown called Dr I’Ons as a witness in the trial. He is a forensic pathologist. Dr I’Ons conducted the autopsy. Professor Johan Duflou was called in the defence case. I will summarise the evidence of both experts in due course. Before I do so, I direct myself about expert evidence as follows.
I remind myself that an expert witness is a person who has specialised knowledge based on that person’s training, study, or experience. Unlike other witnesses, a witness with such specialised knowledge may express an opinion on matters within his or her particular area of expertise.
Of course, the value of any expert opinion is very much dependent on the reliability and accuracy of the material which the expert used to reach his or her opinion. It is also dependent upon the degree to which the expert analysed the material upon which the opinion was based, and the skill and experience brought to bear in formulating the opinion given.
Expert evidence is admitted to provide me with information and an opinion on a particular topic which is within the witness’s expertise, but which is likely to be outside the experience and knowledge of the average layperson.
If the opinion is based upon facts which I am satisfied have been proved, or assumptions that I am satisfied are valid, then it is a matter for me to consider whether the opinion that is based upon those facts, or assumptions, is correct. On the other hand, if I decide that the facts have not been proved, or the assumptions are not valid, then any opinion based upon them is of no assistance because it has no foundation. If that is the case, the opinion should be disregarded.
The expert evidence is before me, as part of all the evidence, to assist me in determining whether the act that caused the fatal wound was a result of a deliberate act of the accused. I do not consider it in isolation, but rather together with a number of circumstances relied upon by the Crown, which will be addressed in due course.

Dr I’Ons was called in the Crown case on 12 March 2025. Relevantly, Dr I’Ons gave evidence that he conducted the autopsy of the deceased on 13 December 2022. There were two wounds of interest. A sharp force injury was located to the left lower abdomen. The witness referred to this wound as a “prodding” wound. This wound did not cause or contribute to death.
Another sharp force injury was located towards the left side of the deceased’s chest. The track of that wound involved penetrating the skin, through the fatty tissue and the cartilaginous part of the fifth rib. It went through the pericardium penetrating the right ventricle of the heart, which allowed blood to enter the pericardial sac.
The knife (Exhibit J) is consistent with having caused the two injuries observed at autopsy. The depth of the penetration to the left upper chest was between 85 and 90 mm. The fatty material that was observed on the blade of the knife is consistent with the knife having entered a fatty part of the body. The DNA examination of that fatty substance provided a DNA profile consistent with the deceased’s DNA profile.
I am satisfied that the knife seized from the accused’s premises (Exhibit J) caused the wounds sustained by the deceased.
Dr I’Ons was asked about what, if any significance, there was to the fact that although fatty material was observed on the blade, no blood was observed. The witness said this was unusual. It may be that the knife had been wiped against something on the way out of the body or subsequently. Ultimately, the reason or reasons as to why blood was not evident on the blade of the knife, is not probative of a fact in issue. As it transpired, that evidence had no significance in the trial.
Dr I’Ons gave evidence about the force required to cause the fatal wound. He gave evidence that on a scale of 1 to 10, (if 1 is the force required to push a button on an elevator and 10 is the force of punching someone hard) the force here was somewhere between 3 to 4. Two main factors determine the level of force. Firstly, the sharpness of the knife. Secondly, the number of barriers. The main barrier on a deceased is typically clothing. In the present case the clothing worn on the upper part of the deceased’s body was made of thin, soft material. Another barrier is the skin. Considering the sharpness of the knife, the skin would have offered very little resistance. The cartilaginous is quite soft and does not offer a significant amount more resistance than the skin.
Dr I’Ons was provided with the report of Professor Duflou. He agreed that the opinions expressed by Professor Duflou at paragraphs 31 and 32 of his report, are “quite reasonable opinions”.
Before I set out the opinions expressed in those paragraphs, it is appropriate to set out the context in which those opinions were expressed. Professor Dufluo stated:

According to Dr I’Ons some continued application of force was required to cause the fatal injury. However, in circumstances where the precise movements of the accused and the deceased is unknown, it is uncertain as to how that continued force was applied. As Dr I’Ons said, it could have been the result of force on the part of the accused or force applied by the deceased.
In cross-examination, the witness agreed that the order in which the wounds were sustained cannot be determined. In relation to the grip required on a longer knife than a shorter item, he confirmed that “… it requires a greater amount of grip” if the item is longer. The witness confirmed that the deceased’s height was measured as 1.79 m and weight as 110 kg.
Dr I’Ons did not consider there to be much significance of the accumulation of barriers between what was quite soft clothing, quite soft skin and soft cartilage. He was unable to say where the knife would have been held when the injury to the chest was occasioned. The variables that impact upon that question are numerous. Dr I’Ons said that the question cannot really be answered, and depended upon whether the deceased was falling forwards, whether he was crouched or jumping or indeed whether the accused was in any of those positions. The relative positions of each body towards the other is not a question that he could answer.
Professor Duflou gave evidence that was not inconsistent with the evidence of Dr I’Ons. Like Dr I’Ons, Professor Duflou said that the degree of force depends upon several factors including the sharpness of the implement and the level of resistance from various items such as clothing, skin and cartilage. He agreed with the opinion expressed by Dr I’Ons about the degree of force required to cause the fatal injury. The witness would have described it in different terms, namely mild to moderate force.
Professor Duflou concluded that it is reasonably possible for either of the stab wounds to be the result of the person holding the knife stabbing the deceased. It is also reasonably possible for either of the stab wounds to be the result of the deceased moving forwards in some way towards the knife and for the knife to have been held stationary while either of the wounds were sustained.
When taking into account the two stab wounds together, it is entirely possible for both the stab wounds to be the result of a person holding the knife stabbing the deceased. It would be reasonably possible, but less likely, for the two wounds to have been sustained in some way by the deceased moving onto the knife, noting that this would require two movements.
The witness was cross-examined about the firmness with which the knife would have been held having regard to its length. Obviously, the knife would have been held but as to whether it was held firmly or not, he could not comment.
Professor Duflou was challenged in respect of his evidence that once the blade penetrated the skin, the cartilage and the heart muscle would not have offered greater resistance than the skin. The Crown put to the witness that the knife, once it penetrated the skin, does not magically continue its course but requires some sustained force.
Professor Duflou did not agree with the proposition that sustained force was required, stating that one of the variables is the likely relative movements of the persons involved in the interaction, that is the holder of the knife and the person sustaining the injury.
The experts are largely in agreement about the possible mechanisms that could have caused the fatal wound. It is reasonably open, on their evidence, that the fatal wound was caused by the deceased moving onto the knife when it was held firmly by the accused.
The expert evidence, by itself, does not establish to the requisite standard, that it was a deliberate act of the accused that caused the fatal injury. However, the Crown case is not limited to the evidence of the experts. Indeed, in large part, the Crown case relies upon the representations made by the accused himself, relied upon as asserted admissions, together with the post-offence conduct, relied upon as consciousness of guilt to an unlawful killing.

The circumstances relied upon by the Crown to prove that the fatal wound was caused by a deliberate act of the accused, are, in large part, based on representations of the accused and post-offence conduct engaged in by him:
Representations by the accused in his conversation with Mr Elfverson on 12 December 2022 (Item 74 of Exhibit B), “… I flipped the switch, like I walked up there and he (IND)... and then he shaped up to me and I walked back with Layla in the room and grabbed my (IND) Layla goes what do you need that for and I never answer her when, like I’m angry and then I went back and he shaped up to me and I just went boom (slap sound) but pulled him into it…”.
Representations of the accused in a conversation with Emanuel Saliba and Mr Elfverson on 12 December 2022 between 23:36 and 23:51 (Item 93 of Exhibit B), “… he was like here (IND) shaped up… Yeah (IND) I just went (slap sound, slap sound) and he went ahhh, ahhh…”.
Evidence of Brianna Robbins that the accused told her that he and Bailey were arguing in each other’s faces, the accused blacked out and he woke up with Bailey in his arms covered in his blood.
Evidence of Mr Elfverson that immediately following the infliction of the fatal wound, the deceased came through the door from the kitchen into the garage with the accused behind him and the deceased said: “why do you do that?”.
Mr Elfverson’s description of the accused’s gestures during the conversation with him on 12 December 2022, which is consistent with a deliberate act of stabbing as opposed to an accidental infliction of the wound.
The accused’s representations during a conversation on 13 December 2022 between 19:10 and 19:25 (Item 98 of Exhibit B), in which the accused said: “but I just flipped it like when I shouldn’t have… I wish someone like just, had that chance to say, Dom what are you doing? Before like, saw me switch”, and Mr Elfverson saying: “I would have had that knife out of your hands”, and the accused responding: “no you wouldn’t have bra (laughing)”.
Post-offence conduct (set out in MFI 18).
Asserted admissions (set out in MFI 21).
My function as the judge of the facts, in this case, extends beyond coming to a conclusion as to whether I find that any particular fact has been established by the evidence. My function also extends to drawing reasonable inferences, or conclusions, from the facts I find established.
In relying upon circumstantial evidence, the Crown asks me to find certain basic facts and then from those facts, to draw an inference or conclusion as to the existence of a further fact, or facts. Here, I am asked to draw the inference that the accused did commit a deliberate act that caused death and at the time he did so, he had an intention to cause grievous bodily harm.
A case based on circumstantial evidence may be just as convincing and reliable as a case based upon direct evidence. This will depend upon the number and nature of the basic facts relied upon by the Crown when considered as a whole (not individually or in isolation). And it will depend upon whether all of the evidence leads to an unavoidable conclusion that the Crown has established the guilt of the accused.
It is important that I approach a circumstantial case by considering and weighing, as a whole, all the facts I find established by the evidence. It is wrong to consider any particular fact in isolation and ask whether that fact proves the guilt of the accused, or whether there is any explanation for that particular fact, or circumstance, which is inconsistent with the accused’s guilt.
The correct approach is as follows. Firstly, I determine what facts I find established by the evidence. Any particular fact to be taken into account by me does not need to be proved beyond reasonable doubt.
I then consider all those facts, together as a whole, and ask myself whether I can conclude from those facts, that the accused is guilty of the offence charged. If such a conclusion does not reasonably arise, then the Crown’s circumstantial case fails because I am not satisfied of guilt beyond reasonable doubt. Of course, it follows that I must find the accused not guilty.
Secondly, if I find that such a conclusion is a reasonable one to draw based upon a combination of those established facts then, before I can convict the accused, I must determine whether there is any other reasonable conclusion arising from those facts that are inconsistent with his guilt. If there is any other reasonable conclusion arising from those facts that are inconsistent with the guilt of the accused, the circumstantial case fails because I could not be satisfied beyond reasonable doubt of the accused’s guilt.
I understand that drawing a conclusion from one set of established facts to find that another fact is proven, involves a logical and rational process of reasoning. I must not base my conclusion upon mere speculation, conjecture, or supposition.

The evidence relied upon by the Crown that the accused influenced witnesses to give a false version or not provide a true or full version of the relevant events is as follows.
The Crown relies on the evidence of Mr Hannagan that the accused told him that the deceased had fallen on a skewer “like a barbecue skewer”, which was the reason the witness told the triple zero operator that the deceased had injured himself in that way. During the triple zero call that Mr Hannagan made, the accused is heard in the background saying: “he tripped on a knife”, which prompted Mr Hannagan to report to the triple zero operator that the deceased “tripped and he landed on a knife”.
I pause to note, that while I am satisfied that the accused told Mr Hannagan that the deceased had fallen on a knife, I reject the evidence that the accused told him that the deceased had “snapped himself” or fallen on a “skewer”. Mr Hannagan’s evidence that the accused said the deceased fell on a “skewer” was uncertain and inconsistent. Mr Hannagan gave conflicting evidence about whether it was the accused who told him the deceased had fallen on a skewer or whether he had assumed that was what happened because the accused said it happened in the barbecue area.
Furthermore, none of the other witnesses asserted that the accused told them the deceased had “snapped” or fallen on a “skewer”.
The Crown relies upon the following recorded utterances of the accused as part of the post-offence conduct:
Representations by the accused during the conversation with Mr Elfverson on 12 December 2022 (Item 77 of Exhibit B), “Like I like I said if I can just, we can all just like stick to our shit and just make that an accident”.
Representations by the accused during conversations on 12 December 2022 (Items 80, 81 and 82 of Exhibit B) between the accused, Mr Elfverson and Tania Saliba, in which the accused said to Mr Elfverson: “Bro, just say you tell them you saw nothing that’s it…”. The accused also expressed a concern that “Matt” (Matthew McAnally) worried him, essentially because he was worried about what Matt would say to the police.
A conversation between the accused and Mr McAnally on 12 December 2022 at 19:18 (Item 83 of Exhibit B) in which the accused said: “…that charge it’s, it’s looking like an accident so that’s what it is”.
Representations by the accused during conversations with Mr Elfverson on 13 December 2022 (Items 97, 98 and 99 of Exhibit B) in which he said: “Oi listen, the only reason I will get done is when someone decides to go (IND), none of yous. I know you won’t. (IND) That’s the only reason bro. Like, put it this way, (IND) bra”; “They’re hoping one of yous crack”; and, “If you go on the stand you just say the same shit”.
The accused’s representations to his father on 17 December 2022 (Item 102 of Exhibit B), “… like we had to come up with a story within five minutes I had to tell them what to say to the ambos on the phone quickly…”.
Representations made by the accused to Mr Elfverson on 18 December 2022 (Item 106 of Exhibit B), “At the end of the day if no one folds, no one folds. They can’t do nothing”.
The Crown also relies upon lies told by the accused as a consciousness of guilt of an unlawful killing. Those asserted lies can be summarised as follows:
The accused saying that the deceased “tripped on a knife”, while Mr Hannagan was on the phone to the triple zero operator (Item 20 of Exhibit B).
The accused’s representations to the triple zero operator: “All right so my little cousin… and he fell on the knife” and “the little cunt was just joking around and being a silly cunt and tripped over and landed on the thing.” (Item 23 of Exhibit B).
When the police asked the accused who had witnessed what happened, he responded: “us three”, referring to Mr Hannagan and Mr Elfverson (Item 27 of Exhibit B). Neither of those men were present when the deceased sustained the fatal injury.
The representations made by the accused to PCSC Lipscombe which included: “Fucken silly cunt playing with knives bro” and “… fucken silly cunt wants to grab knives and joke around and then tripped over near the door and then bro must’ve just landed straight on him” and “… then fucken tripped over. Like he was joking around with me like being a funny cunt and then as he like joked around he tripped over and the cunt just (soft slap noise) and I was like ohhh”: (Item 41 of Exhibit B).
The accused’s version in the police recorded interview on 9 December 2022 (Exhibit K) at answers 40-41, 167-188, 233-235, 255-269, 192-193, 204, 332-338.
The accused’s representations during a conversation with an unknown male on 12 December 2022 in which the accused said: “Like this cunts swings things around all the time… he’s at the (IND) joking around and he kicks the door thing like that trim, he gets up I was like…”, “Yeah it was an accident, fucked accident” (Item 88 of Exhibit B).
Representations by the accused during a conversation with an unknown male on 14 December 2022 which includes the accused saying: “he ended up tripping on a blade and hurting himself” (Item 100 of Exhibit B).
Representations by the accused during a conversation on 18 December 2022 in which he said: “Literally it was an accident… he fell on the knife” (Item 104 of Exhibit B).
It is appropriate to note that the accused gave evidence that when he told his friends, police, and the triple zero operator that the deceased had fallen on a knife, that was a lie. There is no dispute therefore that the representations made by the accused that the deceased fell on a knife were a lie and that he knew that the representations were untrue at the time he made them.
There are two pieces of evidence relied upon by the Crown that do not, in my view, constitute consciousness of guilt evidence. The first is representations by the accused to Senior Constable Heydon: “I got rid of it bro”, referring to the knife (Item 28 of Exhibit B). It is unclear as to why the accused made that representation. It was obviously not accurate because the knife was located in the kitchen in the vicinity of the door that led from the kitchen to the garage which is in the general vicinity of where the interaction between the accused and the deceased took place. Indeed, further evidence establishes that the accused pointed out to police where the knife was.
The second piece of evidence which I do not treat as consciousness of guilt evidence is the representation to Kevin Saliba which includes: “I just said it was on the floor when I, I moved it. That’s it. That’s why my prints are on it” (Item 101 of Exhibit B). I am not persuaded that this representation is capable of giving rise to consciousness of guilt reasoning of an unlawful killing. There is no dispute the knife belonged to the accused. He had it in his bedroom. His fingerprints would have likely been all over the knife even prior to 9 December 2022.

In relation to the evidence relied upon by the Crown as lies, I must be clear about what a lie is. A lie is to say something untrue, knowing at the time of making the statement that it is untrue. If a person says something which is untrue but does not realise at the time that it is untrue, then it is not a lie. The person may be simply mistaken or perhaps confused. Even if the person later comes to realise that what they said was incorrect, that does not transform the statement into a lie. To be a lie the person must say something that the person knows, at the time of making the statement, is untrue.
In this case, the representations made by the accused to the effect that the deceased fell on the knife (thereby causing the fatal injury to himself), were lies. The accused admits that at the time he made those representations he knew they were untrue.
Being satisfied that they were lies, I must exercise care in the approach to the task of deciding what significance, if any, the lies have. I may take into account the lies as evidence of the accused’s guilt in respect of an unlawful killing, but I can only do that if two further things are established which I will refer to shortly.
When I say “take into account” as evidence of the accused’s guilt in respect of an unlawful killing, I am not suggesting that the evidence could prove that guilt on its own. What I mean is that the evidence of lies can be considered along with all of the other facts that the Crown relies upon and which I find established on the evidence, in considering whether the Crown has established its case beyond reasonable doubt. The Crown does not suggest that if I find the accused told these lies that this finding can prove that he caused the death of the deceased by committing a deliberate act.
Apart from the fact that the accused made the statements, and they amounted to deliberate lies, before I can use the lies as some evidence of the accused’s guilt, I must consider two further matters proved.
First, I must find that the lies relate to an issue that is relevant to the offence the Crown alleges that the accused committed. The lies must relate to some significant circumstance or event connected with the allegation. The Crown says the lies are relevant as circumstances which, together with other circumstances, establish that it was a deliberate act perpetrated by the accused that caused the fatal wound.
Second, I must find that the reason the accused told lies is because he feared that telling the truth might reveal his guilt in respect of the offence. In other words, he feared that telling the truth could implicate him in the commission of the offence for which he is on trial because it reveals that he committed a deliberate act which caused the death of the deceased.
Here, manslaughter is an available alternative charge. The evidence relied upon as consciousness of guilt, is not relied upon to establish an intention necessary for murder. It is relied upon, together with other evidence, as consciousness of guilt to an unlawful killing, namely the issue of whether the death was caused by the deliberate act of the accused, an issue relevant to both murder and manslaughter.
I must remember however, that people do not always act rationally, and that conduct of this sort, that is telling lies, may sometimes be explained in other ways. A person may have a reason to lie quite apart from concealing or trying to conceal their guilt. For example, a lie may be told out of panic; to escape an unjust accusation; to protect some other person; or to avoid a consequence unrelated to the offence.
If I think that the lies may have been told for some reason other than to avoid being implicated in the commission of the offence for which the accused is now on trial, then it cannot be used as evidence of the accused’s guilt. If that were the case, I should put it to one side and focus my deliberations upon the other evidence in the case.
This direction also applies to the other evidence of post-offence conduct, namely influencing witnesses to give a false version or not provide a true version. I have decided to deal with this category of consciousness of guilt evidence separately.
The evidence upon which the Crown relies to establish that the accused influenced witnesses to tailor their accounts to police in a way that was untruthful, is somewhat more complicated.
None of the other persons present in the house on the late afternoon of 9 December 2022 witnessed what occurred in the kitchen. To that extent, saying that they saw nothing, is not an untruth.
However, I accept that the various representations made by the accused and upon which the Crown relies as representations influencing witnesses to give a false version or not provide a true version, were intended to ensure that the story first propagated by the accused, almost immediately upon the injury being sustained by the deceased, was maintained by others who were present at the house. That story was to the effect that the deceased had fallen on the knife, accidentally injuring himself.
The only exception to that category of evidence is the assertion by Mr Hannagan that the accused told him that the deceased fell on a skewer in the barbecue area. As previously indicated, I do not accept that evidence. For the reasons set out previously, vital aspects of Mr Hannagan’s evidence were unreliable.
Mr Elfverson had a role to play in encouraging and maintaining the lie that the deceased had fallen on a knife. It is true that many of his representations took the form of encouraging the accused to continue with the lie. The recorded conversations reveal that Mr Elfverson was a willing and somewhat enthusiastic party in maintaining the false story. However, although Mr Elfverson’s encouragement may have emboldened the accused, it was the accused who fabricated and then maintained the lie that the deceased had fallen on the knife injuring himself.
Notwithstanding the concession made by the accused that he did lie to his friends, to the triple zero operator, to the attending police and in his interview, it was submitted that I would not be satisfied that the reason the accused told these lies was because he feared that the truth could implicate him in committing a deliberate act that caused the fatal wound.
He explained that immediately following the incident in which his cousin was fatally wounded, he could not comprehend what was going on. The accused was in shock. He was highly emotional. He wanted to protect himself against false accusations and was afraid of the reaction of his extended family members.
I accept that the accused was highly emotional following the incident. Things were moving fast. It is apparent from the CCTV footage and other evidence that there was a level of panic and disbelief about the extent of the injury to the deceased.
However, the lie that germinated almost immediately upon the deceased being injured was that he had fallen on the knife and caused injury to himself accidentally. That lie was told by the accused to his friends. It was the accused who then fed the lie to Mr Hannagan so that it could be communicated to the triple zero operator. It was the accused who lied to the triple zero operator and the attending police on 9 December 2022. That lie was maintained during his interview with police on 9 December 2022.
The lie was propagated in a moment of panic but then repeated and maintained in the days that followed the death of Mr Jones. I am satisfied that the post-offence conduct (other than the evidence that I have specifically identified as not being consciousness of guilt evidence), was engaged in by the accused because he feared that telling the truth might reveal that he committed a deliberate act that caused the fatal injury. Put another way I am satisfied that the post-offence conduct is evidence of consciousness of guilt of an unlawful killing.
I repeat that taking into account this evidence on the question of the accused’s guilt does not mean that by itself it proves his guilt of either murder or manslaughter. What I mean is that it can be considered along with all of the other facts that the Crown relies upon and which I find established on the evidence, in considering whether the Crown has proved its case beyond reasonable doubt.
The post-offence conduct giving rise to consciousness of guilt reasoning does not however apply to the question about whether the Crown has established the necessary intention for murder. The post-offence conduct is consciousness of guilt evidence in respect of an unlawful killing only.

| | Source | Admission | | Admission relied upon by Crown | | 1. | Evidence of Lachlan Hannagan | In phone call made out on street after paramedics arrived and took over: “I fucked up....” | Hannagan XN T158.02 - 158.09 Accused XXN T624.45 - 624.49 | Admission to a deliberate killing | | 2. | Surveillance Device product | SALIBA: But like (IND) and literally like, I dunno like what happened I flipped the switch, like I walked up there and he (IND)”--- And then, and then he shaped up to me and I walked back with Layla in the room and grabbed my (IND) Layla goes what do you need that for and I never answer her when, like I'm angry and then I went back and he shaped up to me* and I just went boom (slap sound) but pulled him into it and I didn't realise bra like (slap sound) I jabbed him three times bra he had three stab wounds, he had one here, two dots here and then, but the one stab wound was the one that killed him. And then after I did it he's like 'you got me', I was like 'no I didn't no I didn't'. And then when I looked at it (IND) the whole thing must have, to hit his heart and then like.” | EXH B #74 Elfverson XN from T345.26 Accused XN from T540.44 Accused XXN from 610.36 | *Admission to a deliberate killing - “...I just went boom (slap sound)...” *Admission to murderous intent (GBH): Crown relies upon admission to anger to such a level that he was unable to answer his girlfriend’s question, and the admission to “pulled him into it” as admissions to murderous intent (GBH) *Crown case is that the accused thought Bailey was shaping up to him | | 3. | Surveillance Device product | SALIBA: Bro anyone else knows like he was on (IND) fucken, I’m pissed now bro if your off --- like that bra like that crossed the line that, I'm I'm a cut motherfucker and when I black out I, I it doesn't matter I'm going. I'm ballistic. Bro, like yesterday bro I woke up to having flash backs of it. | EXH B #76 Elfverson T348.32ff Accused XN T549.9ff Accused XXN T608* and T652.47ff | *Admission to a deliberate killing *Admission to murderous intent: Crown relies upon admission to the deceased doing something which “crossed the line” and made the accused angry (T653.07, 654.28 - 655.18) and “when i black out... (i go) ballistic” as an admission to murderous intent (GBH) *T608.50-T609.7 - Accused agreed with that a blackout “is when you become enraged” | | 4. | Surveillance Device product | SALIBA: Everything just fucken went south hard. SALIBA: Everything just went completely wrong ELFVERSON: I don't say to this to many cunts you need help bro. SALIBA: Bro I know I do. ELFVERSON: You need help... Yeah. Bro I'm telling you you're talking to a counsellor but the first month you're just oh fuck off then you start to see progress bro." SALIBA: (IND) ELFVERSON: Bro cause I'm, I'm. SALIBA: You just feel like this hey? ELFVERSON: I used to be very bad bro. Like I tried to murder my own brother. SALIBA: (IND) doesn't mean you did. ELFVERSON: Like I fucken. SALIBA: Yeah just without thinking hey? ELFVERSON: Without thinking. SALIBA: You don't think you just (IND). ELFVERSON: I just did it. As soon as I do it. .. SALIBA: You regret it. ELFVERSON: ... I'm back. SALIBA: Yeah you're back. It's like a blackout like yeah. ELFVERSON: And yeah bro its no good but help is good. | EXH B #85 Elfverson XN from T357.32 Accused XN from T579.4 Accused XXN from T662.2 (and again T652.47) | Admission to a deliberate killing; Crown relies upon the accused’s representations as being about the stabbing of the deceased - to having had “like a blackout”, which the Crown contends was an episode of rage (as accused agreed to at T608.50ff), during which the accused said he doesn’t think, he just does and then regrets. | | 5. | Surveillance Device product | ELFVERSON: Like I told him one of mine before I was like when you snap you have about a three to five second gap before your just (finger snap), blackout and just do something irrational. I said think of the worst possible outcome, worst possible thing you could think of right now. Like, like, something just shh, like you really do not want to happen." Emanuel SALIBA: Yeah. ELFVERSON: And then if you think about it, you'll think about that and then you'll just click out. You'll just come back. SALIBA: Yeah but I don't even let myself, like, I ca, don't, I don't get to that point. It's just instant. ELFVERSON: Even next time you think... SALIBA: It's like.... ELFVERSON: . . . about to snap. SALIBA: . . . it's like zero from a hundred. ELFVERSON: Dude next time you think you're about to snap just count, countdown before you think nah fuck this. Emanuel SALIBA: Mmm. ELFVERSON: Just like, just count think about like how long it takes you to think, to think yourself nah fuck it I'm just do it. Because you have, you have a moment where you process do I want to do this? And then you go alright fuck it I'm gonna do it. And then in that time when you're thinking fuck do I wanna do this just think what's the worst, like SALIBA: Yeah but that didn't... ELFVERSON: Just think of fuck SALIBA: . . . (IND) didn't go through my brain at that point. | EXH B #92 Elfverson XN from T361.48 Accused XN from T592.18 Accused XXN from 665.29 | Admission to a deliberate killing The context of the excerpt, the preceding and the following exerpts #91 and #93, make it clear that the accused’s representations are about the events resulting in the deceased’s death. The Crown’s contention is that the accused is then talking about having an episode of rage (blackout) from which he did not have a 3 to 5 second gap before the blackout, “it’s just instant”. | | 6. | Surveillance Device product | Emanuel SALIBA: Even when you had that? SALIBA: Yeah (IND) I just went (slap sound, slap sound) and he went ahhh, ahhh and he's like you got me." | EXH B #93 Elfverson XXN from T412.43 Accused XN from T593.29 Accused XXN T672.31ff | Admission to a deliberate killing – Admission to having stabbed the deceased twice with the knife and the deceased responding with “Ahhh” following each of the two stabs. | | 7. | Surveillance Device product | SALIBA: Like we always mucked around. Out, in here. Always muckin around, you know what I mean? ELFVERSON: Yeah (IND). SALIBA: But I just flipped it like when I shouldn’t have. ELFVERSON: If I was there I don't reckon you would have. SALIBA: I wish someone like just, had that chance to say, Dom what are you doing? Before like, saw me switch. Like you could see me switch ELFVERSON: If you did that in front of me I probably would have fucken attacked you. SALIBA: Yeah that's what I mean. ELFVERSON: Like I would have attacked ya. SALIBA: Na I don't reckon you would have, that would've been the dumbest thing you could've done. ELFVERSON: Huh? SALIBA: That would've been the dumbest thing you could've done. ELFVERSON: I would have had that knife out of your hands. SALIBA: No you wouldn't have bra (laughing). ELFVERSON: I've got full faith in myself that if I coulda, I would've got the knife off ya. I know what I'm capable of." SALIBA: It's pretty long bra." ELFVERSON: Hey? SALIBA: It's pretty long. ELFVERSON: Yeah. I'm pretty quick for a big fella. SALIBA: Yeah. I don't know. Yeah a few (IND) would have got it off me. | EXH B #98 Elfverson XN from T366.49 Accused XN from T96.27 Accused XXN from T674.30 | Admission to a deliberate killing; - “when i shouldn’t have” (inter alia) Admission to murderous intent (GBH) by virtue of “i just flipped it like” and “switch”, both of which the accused said in XN was “the blackout”* (which the accused said earlier was when you become enraged [at T608.50ff]) In XXN the accused agreed that he was saying that he wished someone had pointed out to him that he was entering the state of rage. The representations that even Mr Elfverson could not have taken the knife out of his hands is a further admission to murderous intent (GBH) *T596.35; T596.44 | | 8. | Evidence of Brianna Robbins | Dom started to cry. I remember asking him what had happened. Dom said “he’s gone, he’s gone”. Bailey. I asked if he done it. He said that Bailey was stabbed twice. He also said that him and Bailey were arguing in each other’s faces. He blacked out, and he woke up/he came to with Bailey in his arms covered in his blood. He said he had to drag Bailey out of the garage because he needed air, and then that’s when he said the ambulance rocked up. | Robbins XN from T434.7 | Admission to a deliberate killing Admission to having stabbed twice and to having blacked out – which the accused agreed was becoming enraged. Admission therefore to murderous intent (GBH) |

Evidence has been given that the accused made certain admissions as set out above. There are two issues for me to decide. Were the admissions made and if they were made, were they true?
The accused does not deny that he said the words constituting each one of the alleged admissions. (I will deal with the evidence of Brianna Robbins separately).
I might think that a person would not usually admit to committing a crime unless the admissions were true, but there may be situations where a person may make a false admission. The main issue in this case is whether the admissions were true and whether they were in fact admissions to an unlawful killing and whether some of the utterances are admissions to an intention to inflict grievous bodily harm.
The Crown must prove that they are truthful admissions and, if there is any evidence to suggest that they are not, the Crown must refute that suggestion. There has been evidence in this case that the truth of the admissions is called into question for the reasons given by the accused. He has explained in his evidence (which will be summarised and considered in more detail below) that many of the asserted admissions were untruthful and that he said those things primarily because he wanted to look tough in front of his friend, Mr Elfverson.
The accused also explained that in respect to some of the utterances, he was weaving truth and fiction into the narrative. On occasion he was “bouncing back” off Mr Elfverson’s representations and lying to keep the conversation going.
In respect of the asserted admission to Ms Robbins, the accused said he does not remember making the representations attributed to him. He was crying and could not hold his emotions in. He had also been drinking heavily.
In relation to the first issue, that is whether the admissions were made, there is no issue that the words were said by the accused (other than what could not be remembered about the conversation with Ms Robbins).
Having heard the listening device product, I am satisfied that the representations that are relied upon as admissions were made by the accused. The question as to whether they were truthful will be answered after I set out the summary of and findings about the accused’s evidence. I will therefore return to the question as to whether the representations can be relied upon as admissions to a deliberate act causing death and whether some of the representations are admissions to an intention to inflict grievous bodily harm.
I will also address the asserted admissions made to Ms Robbins in due course.

On 9 December 2022, the accused, together with his girlfriend, the deceased and Lachlan Hannagan, travelled to Stockland at Nowra. They visited Moe & Co., where the accused and the deceased had a haircut. They returned to the accused’s home on the afternoon of 9 December 2022. Matthew McAnally and Jordan Mitchell were at the house. Mr Elfverson attended later.
The group of men “just chilled for a little bit” in the garage. They were listening to music and having a laugh. The deceased grabbed a canister which was on the coffee table. The canister contained some money belonging to the accused. A similar canister, containing the deceased’s medicinal cannabis, was on the stairs leading into the house.
The deceased was quicker than the accused. He took possession of the canister that was on the coffee table, giving the accused “a cheeky slap”. The accused described this action as a joke. It was nothing serious. The accused and the deceased commenced slapboxing. This was described as “slapping each other, laughing, joking around”.
The deceased was joking with the accused saying: “this is mine”, referring to the canister in his hand. The slapboxing lasted between 30 seconds to a minute. It was “all a laugh and all a joke”.
The deceased dropped the canister, and the accused picked it up. The accused also picked up the canister containing the medicinal cannabis saying, “this is mine”, and went into the house. Upon entering the house, the screen door shut behind him and he slammed the wooden door shut. He said that he did this to get away from the deceased, “just to keep the joke going, like that I had his canister”.
The accused went into his bedroom to find an object that was long enough to keep the distance between himself and the deceased. His intention was to take hold of a long bat that that was in the bedroom. However, the first thing he saw was the knife (Exhibit J). He took possession of the knife, had a very brief conversation with his girlfriend and “ran back” into the living area. He denied he was angry.
The accused was carrying the knife in his right hand and the two canisters in his left hand. The accused said that he came back into the living room to “keep running amok on my cousin”. He said, “just to keep having a laugh and joking around with him, saying he is not getting his canister back”.
When in the vicinity of the kitchen bench, the accused said he had the knife in front of him and said to the deceased: “this is mine”. The deceased shaped up to the accused, standing with one foot in front of the other and his hands up in front of his face. The accused described this as a fighting stance. At first the accused thought nothing of it and just kept the joke going. He gave evidence that he kept running amok on his cousin and waving the knife in front of him, telling the deceased that he wasn’t getting the canister back.
At the time he was in possession of the knife he was about 2 metres away from the deceased. The accused said that the deceased was moving “kind of back and forwards towards me”. The accused was moving “vice versa” with the deceased. This interaction lasted for about one minute. The accused said that at one point the deceased “got a bit dirty at me and said, ‘give my fucking weed back’”.
The accused kept “egging him on”, just “running amok, having a laugh”. The accused gave evidence that it was normal for the “boys” to joke around like this.
When the deceased started “to get a little bit dirty” with the accused, he threw a punch at the accused. The accused put his head down and his left hand up towards his face in an effort to protect his face. He said he did this because he was nervous and scared that he would be punched. In describing the deceased as “a little bit dirty with me”, the accused meant that the deceased was angry with him, “he had a dirty look on his face”.
The accused had placed the canisters that were in his left hand on the kitchen bench. At the time that the deceased is said to have thrown a punch, the accused was still in possession of the knife, holding it in his right arm which was outstretched at about the middle of his torso.
The deceased rushed towards the accused as the accused was back pedalling. He was back pedalling because the deceased started to throw a punch at him, and he was trying to avoid it. He was still holding the knife in his hand with his arm outstretched in the way previously described. The accused felt some contact with his left wrist. When he looked up, he saw the deceased standing with his hands on his chest. The deceased said: “I think you got me”.
The accused said: “Nah, no way”. The accused threw the knife to the right of where he was standing. He lifted the deceased’s jumper because he had not realised that the blade had actually penetrated the deceased’s body. He described the deceased standing there in shock. The accused observed a cut to the deceased’s chest but thought it was minor because it was very small. The accused assisted the deceased out to the garage and out onto the driveway.
The accused does not know when he picked up the canisters again. He told the “boys” to ring an ambulance.
The accused admitted that almost immediately after the deceased was injured, he said that the deceased had fallen on a knife. He accepted this was untrue. He explained that he lied because “I was nervous, scared… I felt guilty of just being the cause of what just happened”.
The accused was scared of what people might think. He stayed with the deceased to assist him in whatever way he could. He agreed that he spoke to the triple zero operator. The accused showed the police where the knife was because they asked him. I accept he did show the police where the knife was and made no effort to hide the knife.
The accused was then taken through a number of messages and recorded conversations in the master chronology (Exhibit B).
The accused agreed that when he spoke to Senior Constable Lipscombe on 9 December 2022, telling him that the deceased grabbed a knife and was joking around and tripped over, he lied. He was essentially maintaining the lie he had originally told that the deceased fell on a knife.
The accused went to the police station on 9 December 2022. He understood that he was a suspect in the killing of his cousin. He maintained the lie in the interview with police that the deceased had fallen on the knife. He accepted that the account to police was untruthful. He lied to protect himself. He explained that he was protecting himself from what everybody would think and the wrong assumptions they would make about the deceased’s death. He wanted to protect himself from being blamed for something he did not do.
The accused was a close friend of Jaemon Elfverson. Between 9 and 12 December 2022, they were “close mates”. They had a number of conversations about Bailey’s death. The accused agreed that he had told Mr Elfverson that the deceased had fallen on a knife. That was the story they were going to maintain. They were going to maintain that story in an effort to protect the accused.
The accused gave evidence that when he is captured on listening device saying things like: “I flipped the switch”; “And I just went boom”; “But pulled him into it”; “I jabbed him three times”; “I’m a cut motherfucker, and when I black out I, I it doesn’t matter”, he was lying to make himself look tough to his friend, Mr Elfverson.
The accused demonstrated the gesture captured on the listening device by way of a slapping sound. His arms were at the lower part of his body. He demonstrated by using his right hand to slap his left hand. The right hand was in a fist with the thumb side of the fist connecting with the open palm of the other hand.
The accused agreed that when he said to Mr Elfverson, “stick to our shit”, he meant stick to the story; the lie that the deceased had fallen on the knife.
The accused could not remember the conversation with Ms Robbins. He said that she had spent “a couple of nights” at his house from 19 December 2022. He remembered that they were in the bedroom. He was crying. He was drunk. He could not remember the terms of the conversation.
The accused denied intending to kill or cause really serious harm to the deceased. He did not intend to cause any injury to the deceased. He denied stabbing the deceased. As he held the knife, he did not contemplate that there was a risk the deceased would get hurt. He maintained that he was just having “a laugh and a joke”.
In cross-examination, the accused agreed that he had lied when he said that the deceased had fallen on the knife. He maintained that lie when he spoke to the triple zero operator, the police at the scene and during his interview with police on the evening of 9 December 2022. His initial version of events was tailored to give the impression that the deceased died as a result of an accident, namely falling on the knife.
It was put to the accused that the version he gave during his evidence in court, was another version of an accident which was untruthful. He denied that proposition. Several propositions were put to the accused including the following:

The accused denied these propositions. There was some dispute about whether the way in which the Crown was demonstrating the gesture that the accused had demonstrated as representing the slap sounds captured on listening device, was accurate. The description of the gesture has been recorded in the transcript as best it could be. I note however that as the tribunal of fact, I have observed the demonstration of the gesture as conducted by the accused in the witness box. I proceed to assess that evidence as opposed to an attempt by counsel to reproduce the gesture. Whether I accept the accused’s evidence is a matter for me to decide.
I also have the evidence of Mr Elfverson which includes his description of the gesture made by the accused during their conversation.
In respect of the lies he initially told his friends and the authorities about the deceased falling on a knife, the accused denied that he told the lies because he believed that the truth would disclose that he had unlawfully killed the deceased. When it was put to the accused that he could have protected himself by simply telling the police at the very start that it was the deceased who was the aggressor and who had advanced on the knife, the accused responded that it would not have made a difference, he would still have gone to gaol, and that he was afraid that his family would wrongly blame him for causing his cousin’s death.
The accused repeatedly said that he could not comprehend what had happened. He was overcome by emotion and wanted to protect himself.
The accused was cross-examined comprehensively in respect of each of the representations captured on listening device, that are relied on as admissions of guilt to an unlawful killing and (in relation to some of those representations) to murderous intent.
I have set out a summary of the admissions relied upon by the Crown above. Many of the representations relied upon were made by the accused in conversations with Mr Elfverson or during which Mr Elfverson was present.
The accused gave evidence that in each instance the representations were further lies, what was referred to as the second “bullshit story”. The accused essentially explained these representations as being false representations designed to make him look “tough” to his mate.
The accused was also cross-examined in relation to a telephone conversation with his brother on 9 December 2022 at about 7:30pm, a time very proximate to the deceased sustaining the fatal injury. He agreed that during that phone call he told his brother that he had “fucked up”.
It was suggested that the accused was conveying to his brother that he was overcome with anger and stabbed the deceased. He denied that proposition and said that what he meant by those words was that he could not save his cousin.
It was also suggested to the accused that he could not comprehend what had happened because he had become so enraged that he blacked out, stabbed his cousin, and immediately regretted it. The accused denied the propositions.
I have not reproduced the entire cross-examination of the accused. It is not necessary to do so because I have had access to the transcript of the entirety of his evidence.

The Crown accepts that the accused and deceased had a close relationship. However, people in close and loving relationships do kill each other. The Crown case is that the accused stabbed the deceased twice with an intention to cause him grievous bodily harm. The nature of the fatal wound, the size of the knife, the admissions made by the accused, and the post-offence conduct are relied upon as circumstances establishing the elements of murder.
In respect of proof that it was a deliberate act of the accused that caused the fatal wound, the Crown relies upon the asserted admissions, together with other evidence, to support the contention that by the time the accused entered his bedroom to retrieve the knife, he was in a state of rage, culminating in the stabbing of the deceased with the requisite state of mind.
The Crown relies upon observations made by Mr Hannagan that the accused’s demeanour had changed in the garage as he went into the house. His eyes were “enraged”, and he was “geed up”.
There were five males in the garage in addition to the deceased and accused. There was some banter and slapboxing. The accused became angry because he was being embarrassed in front of his friends. Anger grew into rage. He went into the house in the state of anger and retrieved the knife. After the stabbing, he lied, claiming that the deceased had fallen on a knife and accidentally caused his own death.
The Crown accepted that both pathologists leave open various scenarios as to how the fatal wound was occasioned. However, the Crown submitted that given the size of the knife it must have been held firmly. There was some force used to inflict the fatal wound. Once the knife penetrated the body there was continued force, causing a track wound of approximately 8.5 cm.
The Crown relies upon the fact that there were two wounds and therefore necessarily two movements required. This is not explained in the version given by the accused during his evidence.
The accused’s version should be rejected because he has admitted lying previously about the incident. It was submitted that he lies easily and has the capacity to fabricate extensive and detailed false accounts. He gave evidence that on 9 December 2022 and in the period that followed, it was easier to lie than to tell the truth.
The Crown submitted that the Court could have no confidence that his sworn evidence is truthful. It is another false account of accident where the accused seeks to place the blame on the deceased.
The Court is invited to reject the accused’s evidence having regard to the admissions he made in conversations which were captured on listening device. The accused’s evidence is said to include absurdities, for example that the deceased advanced towards the accused whilst the latter was holding a very large knife in front of him and waving it around.
Notwithstanding the accused’s capacity to lie, the Crown submitted that his representations, relied upon as admissions, are truthful. He was not aware that listening devices were in the house. He felt comfortable with Mr Elfverson and trusted him.
The accused’s explanation that he made the representations up to look tough should be rejected. The Court would accept the accused’s representations that he “jabbed” the deceased. That evidence is consistent with Mr Elfverson’s description of the gestures made by the accused and with the utterance of the deceased: “Why do you do that?”
The Crown also relies upon the evidence of Ms Robbins. The accused told her that Bailey had been stabbed twice. They were arguing in each other’s faces. The accused blacked out and when he came to, he was holding the deceased in his arms and was covered in his blood.
The Crown submitted that the consciousness of guilt evidence and the admissions is compelling evidence of an unlawful killing. The Crown also addressed some of the admissions relied upon to demonstrate an intention to inflict grievous bodily harm, contending that these admissions together with the discrete circumstances relied upon to demonstrate the necessary state of mind, establish an intention on the part of the accused to inflict grievous bodily harm.
The Crown submitted that there is simply an insufficient evidentiary basis for self-defence. In the event that the Court rejects the accused’s sworn evidence, the remaining evidence does not give rise to an evidentiary basis for self-defence given that in the recorded conversations, the accused simply states that he saw the deceased shaping up. He did not say that the deceased had thrown a punch which required the accused to shield his face and take steps backwards.
Even if some of his sworn evidence is accepted, it is insufficient to give rise to an evidentiary basis for self-defence. The evidence of the accused does not give rise to an inference that he believed he had to stab the deceased to protect himself. The Crown’s ultimate submission is that self-defence has been disproved beyond reasonable doubt.
If the Court is not satisfied that the Crown has established the necessary intention for murder, the Crown submitted that the Court would have no difficulty in finding the accused guilty of manslaughter. Stabbing the deceased with the knife to the chest, is a dangerous act and, having disproved self-defence, is unlawful.
The Crown’s primary contention however is that the elements of murder have been established to the requisite standard.

The accused’s case is that he is not guilty of murder or manslaughter. Ms Khalilizadeh advances four propositions. First, the accused did not commit a deliberate act that caused death. Second, if he did, the Crown has not established an intention to cause grievous bodily harm. Third, if the Crown has established the elements of murder, it has not disproved self-defence. Fourth, in the event that the Crown establishes that the fatal wound was caused by a deliberate act of the accused, it was not an unlawful and dangerous act.
Three reasons are relied upon in support of the contention that the Crown has not proved that it was a deliberate act of the accused that caused death. First, there is no direct evidence as to the precise way the wound was occasioned. Second, the expert evidence supports scenarios consistent with innocence. Third, the accused’s evidence that the deceased advanced on the knife thereby causing the fatal wound should be accepted.
The expert evidence has already been addressed at some length above. In summary, it was submitted that the forensic pathologists are largely in agreement. The force required to cause the fatal injury was not significant or substantial. In any case, there are limitations on estimation of force in a dynamic situation. The degree of force cannot be determined with any certainty. It was pointed out that the pathologists do not exclude, as a reasonable possibility, that the fatal wound could have been sustained as a result of the deceased advancing onto the knife.
In respect of an intention to inflict grievous bodily harm, it was submitted that the size of the weapon, the location of the wound and the evidence of the experts, does not establish, beyond reasonable doubt, that the accused had the necessary state of mind.
Ms Khalilizadeh submitted that the Court would prefer the evidence of Mr Elfverson over that of Mr Hannagan in respect of the observations made of the accused immediately before he went into the kitchen from the garage. Mr Elfverson was seated on the steps, near the door that led from the garage to the kitchen. He did not observe a change in the accused’s demeanour and gave evidence that the accused looked normal.
The Court was urged to consider the accused’s conduct in the immediate aftermath of the injury being sustained. It was a chaotic environment. There was a degree of panic and concern for the deceased’s welfare. The accused was visibly distressed. The accused can be seen on the CCTV footage to be sitting next to the deceased and holding his hand. Observations were made by witnesses that the accused was crying and distressed. His presentation is said to be inconsistent with having had an intention, only minutes before, to inflict grievous bodily harm.
The accused submitted that if the Court accepts that the deceased said: “why do you do that?” immediately after sustaining the wound, several inferences are available which are consistent with innocence. For example, why do you take my canister?
It is accepted that the accused lied to his friends and authorities at the scene and continued to lie in his interview with police. However, it was submitted that the lies do not demonstrate a consciousness of guilt on the part of the accused. He was in shock. He could not comprehend what was going on. He was nervous, scared and felt guilty. He was attempting to protect himself against being wrongfully blamed for the death of his cousin. He felt guilty that he could not save his cousin.
With respect to the admissions, it was submitted that the Court would accept the accused’s evidence that his representations were untruthful. They were made in an effort to look tough to his friend. The accused was weaving lies and truths into the narrative he provided to Mr Elfverson.
In the event that the Court accepted that the representations were truthful, they are not admissions of an intention to cause grievous bodily harm but rather admissions to a loss of control. It is submitted that terms such as “blackout” and “flipped the switch” are indicative of an instantaneous reaction to the situation the accused found himself in, rather than descriptors of a state of mind that encompassed an intention to kill or cause grievous bodily harm.
In the event that the Court is satisfied beyond reasonable doubt that it was an act of the accused that caused the death of the deceased, and that the accused had the necessary intention, the Crown has failed to eliminate self-defence and the accused should be found not guilty.
In respect of murder, it is submitted that the Crown has failed to prove to the requisite standard that the accused did not believe that he had to do what he did to protect himself, nor has the Crown proven that the response was not a reasonable one in the circumstances.
If the Court were to come to consider manslaughter by unlawful and dangerous act, the Crown has not disproved self-defence and has therefore not established that the act of the accused was unlawful or dangerous.
The Court is urged to find the accused not guilty of murder and not guilty of manslaughter.

As indicated at the outset of these reasons, the only account of what transpired in the deceased’s house on the late afternoon of 9 December 2022, is that provided by the accused. I remind myself that the accused does not have to prove his innocence. Just because he has given evidence does not mean that the onus has shifted to him to establish that he did not commit a deliberate act or that he was not acting with an intention to kill or cause grievous bodily harm or, conversely, that he was acting to defend himself.
Having chosen to give evidence, I have assessed the credibility and reliability of the accused in the same way that I have approached that assessment in respect of all witnesses, bearing in mind that the onus does not shift to him to prove, or disprove, anything. I have taken into account that whilst demeanour may be relevant to the assessment of credibility and reliability, it is not determinative of whether a witness is telling the truth. A witness’s demeanour may be affected by a number of matters that have nothing to do with credibility or reliability. For example, a witness may find that giving evidence in a full courtroom with all its formalities is stressful. A witness may be impacted by the tension of the subject matter itself.
Bearing in mind the directions previously set out as to the assessment of witnesses, I proceed to make findings in relation to the sworn evidence of the accused. I reject the accused’s account as to what took place at the time that the deceased sustained the fatal wound. Specifically, I reject his account that the deceased threw a punch at him, causing the accused to shield his face with his left hand and take steps backwards. I reject the accused’s account that, in effect, the deceased advanced on the knife, thereby occasioning to himself the fatal injury.
I reject that account because I am satisfied that the representations the accused made to Mr Elfverson, insofar as they are relied upon as an admission to an unlawful killing, are, in the main, truthful.
I do not accept the accused’s evidence that his representations (set out in MFI 21) were all lies told effectively to present himself as “tough” in front of his friend. While I do accept that there was a degree of embellishment or exaggeration in some of the representations relied upon as admissions, I am satisfied that in the main, those representations are a true and accurate account of what took place at the time that the fatal wound was inflicted.
One example of embellishment or exaggeration on the part of the accused in those representations appears in the conversation with Mr Elfverson on 12 December 2022 between 00:27 and 00:43 (Item 74 of Exhibit B). Relevantly, the accused said “… I just went boom (slap sound) but pulled him into it and I didn’t realise bra like (slap sound) I jabbed him three times bra he had three stab wounds, he had one here, two dots here and then, but the one stab wound was the one that killed him”.
Even accepting the accused had by this stage, some information about the results of the autopsy, this is a clear example of embellishment or exaggeration. There were only two wounds consistent with stabbing which could only have been inflicted by two movements, not three. Furthermore, the expert evidence from both forensic pathologists, about the degree of force, is not consistent with pulling the deceased into the knife.
The expert opinion is that the degree of force was between 3-4 on a scale of 1 to 10, or alternatively between mild to moderate. The expert evidence is inconsistent with significant or substantial force being used, such as pulling the deceased into the knife (Exhibit J).
That is one example of embellishment or exaggeration in the account given by the accused, which is relied upon as an admission. Another example of bravado or embellishment is reflected in the language used by the accused when he said to Mr Elfverson: “I’m, I’m a cut motherfucker and when I blackout I, I it doesn’t matter I’m going. I’m ballistic.”
Although I accept that the accused, in this and other conversations with Mr Elfverson, was conveying that he can lose control in an instant, the language used here is an example of bravado. It can be contrasted with the accused’s representations and the tone of the conversation with Mr Elfverson on 13 December 2022 (Item 98 of Exhibit B) when he said: “I just flipped it like when I shouldn’t have… I wish someone like just, had that chance to say, Dom, what are you doing?…”.
However, that does not mean that everything the accused said in those conversations is a lie, exaggeration or embellishment.
The reason that I accept that some of the representations, relied upon as admissions, are a truthful account of what took place is because they are un-guarded representations made at a time when the accused was unaware of the listening devices. In addition, the representations were made to, or in the presence of, persons whom the accused felt comfortable with, trusted and believed would not betray him to the police.
Furthermore, when regard is had to the recording of the conversations in which it is asserted that admissions are made, the accused’s tone and manner of interacting with Mr Elfverson does not suggest an attempt to “big-note” by lying about having stabbed his cousin.
The representations made by the accused which were captured by listening device, of which I am satisfied are truthful are as follow:
“I fucked up”.
“I flipped the switch”.
“I jabbed him”. I am satisfied that the reference to “jab” is a reference to stabbing the deceased. For the reasons already outlined, I do not accept the number of “jabs” as being truthful. This is one of the conversations in which the accused embellished or exaggerated the account.
I accept the gestures made by the accused (captured on the recording as slap sounds) were as described by Mr Elfverson, gestures from which it can be clearly inferred that the acts were deliberate.
“Everything just fucken went south hard… Everything just went completely wrong”. “Yeah, just without thinking hey?” “You don’t think you just (IND)”.
“Yeah but I don't even let myself, like, I ca, don't, I don't get to that point. It's just instant”. “… It’s like zero from a hundred”. “Yeah, but that didn’t… Didn’t go through my brain at that point”.
“Yeah (IND) I just went (slap sound, slap sound) and he went ahhh, ahhh and he’s like you got me”.
“But I just flipped it like when I shouldn’t have”. “I wish someone like just, had that chance to say, Dom what are you doing? Before like, saw me switch. Like you could see me switch”.
I am not persuaded that the part of the conversation with Mr Elfverson (Item 98 of Exhibit B) in which they discussed whether Mr Elfverson would have or could have taken the knife out of the accused’s hands, constitutes an admission of murderous intent. Having listened to the recording again, it seems to me that this part of the conversation is more light-hearted bravado. At one point the accused laughed when he said: “no you wouldn’t have bra”.
As I have outlined, there was a degree of embellishment or bravado in some of the accused’s representations. I have already pointed out some of those examples. However, I am satisfied that the representations identified at [350] were said by the accused and were truthful.
I accept that Ms Robbins was giving a truthful account of the conversation between her and the accused on 19 December 2022. That evidence is that the accused told her that Bailey was stabbed twice. Bailey and the accused were arguing in each other’s faces. The accused blacked out and woke up with Bailey in his arms and that he was covered in his blood.
The accused could not remember the conversation and could not therefore deny it. While I accept that the accused made those representations to Ms Robbins, I am not of the view that those representations were an entirely accurate or reliable account of what took place. That is because the accused had been drinking alcohol and described himself as being “drunk” when he was speaking to Ms Robbins. He was highly emotional. Ms Robbins agreed that he was “bawling his eyes out”.
Furthermore, the description that he was covered in Bailey’s blood is obviously inaccurate. There is no evidence that the eyewitnesses or police observed blood on the accused. There is no forensic evidence that any blood was located on the body or clothing of the accused.

Having accepted that the representations made by the accused in recorded conversations (identified above at [350]), were truthful, I am satisfied that they constitute admissions that the accused committed a deliberate act that caused the fatal injury. Put another way, I am satisfied that they constitute admissions by the accused that he stabbed the deceased.
However, I am not satisfied that, either individually or collectively, the representations constitute an admission to murderous intent. Put another way, I am not satisfied that the representations are admissions that the accused intended to cause grievous bodily harm at the time he committed the deliberate act which caused the death of the deceased.
First, I am not persuaded that a reference to “blacking out” (or representations inferring such a state) is necessarily a reference to a state of rage in which an intention to cause grievous bodily harm was necessarily formed by the accused.
Second, terms such as “blackout”, “ballistic” and “flipping the switch”, while they may be suggestive of an extreme state of anger, are descriptors which also suggest an instantaneous or impulsive loss of control, in the absence of any particular state of mind. It is the state of mind of the accused at the time of the commission of the deliberate act that must be determined, not the interpretation of descriptors with the benefit of hindsight.
Third, some of the representations made by the accused and relied upon as admissions of murderous intent, are in fact suggestive of a lack of intention to inflict grievous bodily harm. In his conversation with Mr Elfverson on 12 December 2022 (Items 85 and 92 of Exhibit B) the accused said: “Yeah just without thinking hey?” and “You don’t think you just (IND)” and “Yeah but that didn’t… didn’t go through my brain at that point” and “it’s like zero from a hundred”. These representations are suggestive of an instantaneous, impulsive reaction or action, as opposed to the formation of an intention to inflict grievous bodily harm.
There may well be occasions where an intention to inflict grievous bodily harm is formed quickly, without premeditation or even deliberation. However, I am not persuaded to the requisite standard that such was the case here.

It is difficult to determine, with any certainty, the precise movements of the accused and deceased at the time the fatal injury was inflicted. For example, I am unable to determine the order of the wounds. I am unable to determine the precise movement of the deceased at the time he sustained the fatal wound, other than to say that he did not advance on the knife.
I find that the accused and the deceased were slapboxing in the garage. This was a form of playful fighting where each slapped the other. The pair were “mucking around” with each other, perhaps testing each other. There was also some banter about who owned which canister. I accept that the deceased was quicker than the accused and managed to pick up a canister from the table in the garage. He dropped it. The accused picked it up, moving into the kitchen.
I accept Mr Elfverson’s description that the accused was not angry and appeared normal when he went from the garage into the kitchen. Seconds later the deceased followed him into the house. The accused went into his bedroom and took possession of the knife (Exhibit J). I am not persuaded that at the time the accused took possession of the knife he had an intention to stab or injure the deceased. It is more likely, in my view, that the accused took possession of the knife to assert control and to obtain the upper hand in his interaction with the deceased. I also observe that a state of anger does not equate, necessarily, with an intention to inflict grievous bodily harm.
The accused returned to the kitchen and moved to the position in front of the deceased, as indicated by the accused in the diagram (Exhibit 3). As can be seen from the accused’s markings on that floor plan, the accused came out of the bedroom, walked past the kitchen bench to a position facing the deceased. The deceased walked into the kitchen and to the vicinity of about the middle of the kitchen bench.
I accept that the accused perceived that the deceased was shaping up. The accused said so in the recorded conversations at a time when the Crown invites me to accept that what he said was truthful.
However, I do not accept that the deceased threw a punch at the accused, causing him to step backwards. It is difficult to determine with precision, the point at which the “mucking around” or “playful fighting” escalated to anger on the part of the accused. It was likely at the point when he perceived that the deceased was shaping up to him.
I accept that the accused became angry, stabbing the deceased and causing the fatal injury. In addition to the admissions and post offence conduct, I have had regard to other evidence in the Crown case in finding beyond reasonable doubt that it was a deliberate act of the accused that caused the fatal wound.
First, I have had regard to the evidence of the accused himself that the deceased said: “I think you got me”. Second, I have had regard to the evidence of Mr Elfverson that he heard the deceased say to the accused: “why do you do that?”
The irresistible conclusion, having regard to all the circumstances, considered as a whole, is that the accused committed a deliberate act, in stabbing the deceased, that resulted in his death.
I am not, however, satisfied beyond reasonable doubt that the act, although deliberate, was accompanied by an intention to inflict grievous bodily harm.
This was an incident that escalated over a short period of seconds. Immediately prior to the infliction of the fatal wound, the accused and deceased were mucking around with each other, laughing and joking. The evidence establishes that in the months leading up to 9 December 2022, they did have a close relationship. That the accused did not comprehend the extent of the injury, is, in my view, demonstrated by his immediate reaction. Although he had the presence of mind to lie to protect himself, his distress was genuine as was his concern for his cousin. This does not sit comfortably with an intention to cause grievous bodily harm just moments before.
In addition, the post-offence conduct does not advance the Crown case in establishing an intention to cause grievous bodily harm. The Crown does not rely upon the post-offence conduct as consciousness of guilt in that regard. Furthermore, as explained above, I am not satisfied that the representations relied upon as admissions, either singularly or collectively, demonstrate an intention to cause grievous bodily harm.

The Crown bears the onus of proof. The Crown must establish each element of the offence of murder to the high requisite standard of beyond reasonable doubt. Suspicion is no substitute for proof beyond reasonable doubt.
In order to prove its case on the charge of murder, the Crown must establish that the accused committed the deliberate act, or acts, that caused death, and at the time he did so, he either intended to kill or cause grievous bodily harm to his cousin. Grievous bodily harm means really serious bodily harm. While there is no requirement that such harm be permanent, or life-threatening, the intention must be to inflict more than just some harm.
I have endeavoured to summarise the evidence in some detail. I have considered the Crown’s circumstantial case as a whole, rather than in a piecemeal fashion.
To summarise, I am left with a reasonable doubt as to the charge of murder for the following reasons:
Firstly, although I am satisfied that the circumstances relied upon by the Crown, taken as a whole, establish beyond reasonable doubt that it was a deliberate act of the accused that caused the fatal wound, I am not persuaded, to the requisite standard, that at the time of inflicting the wound, the accused had an intention to cause the deceased grievous bodily harm.
Secondly, the post-offence conduct which includes lies and influencing witnesses, is relied upon as consciousness of guilt to an unlawful killing only. The post-offence conduct is not relied upon, and could not be relied upon, as consciousness of guilt to an intention to cause grievous bodily harm to the deceased.
Thirdly, the specific admissions which are relied upon to establish the necessary intention, fall short of doing so. The asserted admissions constitute compelling evidence that the accused perpetrated a deliberate act that caused death. However, none of those admissions (for the reasons set out above) are admissions of an intention to cause grievous bodily harm.
Fourthly, although the size of the knife and the location of the fatal wound are relevant factors to be considered in the Crown’s circumstantial case on murder, they cannot be considered in isolation. The opinion of both experts is that the force required to cause the fatal wound was not significant or substantial. It was described as either mild to moderate or 3 to 4 on a scale of 10.
Fifthly, while some continued force was required to create a track wound of approximately 8.5 cm, neither expert could confidently state what that degree of continued force was or how it was applied in circumstances where they do not know the relative movements of the accused and the deceased at the time the wound was inflicted.
Sixthly, I have had regard to the evidence (which includes CCTV footage) of the accused’s demeanour immediately following the infliction of the fatal wound. He was genuinely distressed, concerned for the welfare of the deceased and demonstrably shaken by the extent of injury to the deceased. I am not of the view that this was feigned emotion. Although I accept that emotional distress can sometimes simply be a demonstration of regret after the event, in this case, I am satisfied that the degree of distress and concern exhibited by the accused, militates against a finding that only minutes earlier, the accused had an intention to inflict grievous bodily harm on the deceased.
It is apparent that in respect of the count on the indictment, I have not addressed the issue of self-defence because I am not persuaded that the Crown has established one of the necessary elements beyond reasonable doubt. I will, however, address the issue of self-defence in due course because it has been raised and is relevant not only to the charge of murder, but also to the alternative of manslaughter by unlawful and dangerous act.

The operation of the provisions as explained by Howie J in Katarzynski, was referred to with approval in Sivaraja v R; Sivathas v R [2017] NSWCCA 236. The question as to whether the accused believed that his conduct was necessary in order to defend himself, is determined from a completely subjective point of view considering all the personal characteristics of the accused at the time that he carried out the conduct.
Applying the relevant directions, I am satisfied beyond reasonable doubt that the act causing death was an unlawful act. Put another way, I am satisfied that the Crown has excluded self-defence beyond reasonable doubt.
I have already explained the reasons for rejecting the accused’s account that the deceased threw a punch at him causing the accused to protect his face and backpedal. The only evidence that I accept as credible, is the accused’s representations in recorded conversations that he perceived that the deceased had shaped up to him.
In those circumstances, I am comfortably of the view that the Crown has established, to the requisite standard, that the accused did not believe that he had to stab the deceased to defend himself.
I find that the accused’s perception that the deceased shaped up to him gave rise to an instantaneous surge of anger (from zero to a hundred) in which the accused stabbed the deceased, but not intending to cause grievous bodily harm.
The Crown has disproved self-defence beyond reasonable doubt. Furthermore, the act of stabbing the deceased with a knife (Exhibit J) is inarguably a dangerous act. The size of the knife and the sharpness of the blade leaves no room for doubt that using such an implement to stab another person, exposed the other to an appreciable risk of serious injury. The accused admitted as much during his evidence.
A reasonable person in the position of the accused, at the time the act was committed, would have realised that the act exposed the deceased to a risk of serious injury.
To be clear then, I am satisfied that the Crown has established each of the elements of manslaughter to the requisite standard. The basis of manslaughter is unlawful and dangerous act.
Dominic Saliba, on the charge that, on 9 December 2022, at Bomaderry in the State of New South Wales, you did murder Bailey Jones, I find you not guilty but guilty of manslaughter.

R v Saliba (No 3)

At a glance

Court

Decision date

Before

Catchwords

Source

Email me a plain-English summary of this case

Catchwords

Judgment

Judgment

Introduction

Procedural History

Procedure

Assessment of Witnesses

Standard of Proof

Inferences Direction

Elements

Murder

Manslaughter

Self-defence

The issues as identified by the parties

Causation

Summary of Evidence

Caroline Micallef

Dylan Thornton

Lachlan Hannagan

Matthew McAnally

Jordan Mitchell

Jaemon Elfverson

Brianna Robbins

Constable Fagerlund

Detective Gray

Expert Evidence Direction

Summary of Expert Evidence

Circumstantial Evidence Direction

Mens rea

Deliberate Stabbing

Consciousness of Guilt

Evidence of influencing witnesses

Consciousness of Guilt Direction

Admissions

MFI 21: Table of Admissions

Direction on Admissions

Mahmood Direction

Evidence of the Accused

Accused Giving Evidence Trial Direction

Summary of the Evidence of the Accused

Submissions

Crown’s Submissions

Accused’s Submissions

Findings and Verdicts

Findings

The Relationship between the Deceased and Accused

Findings in respect of the accused’s sworn evidence

Do the accused’s representations captured on listening device constitute admissions of an unlawful killing and (with respect to some) an intention to inflict grievous bodily harm?

Mechanism Causing Death

Has the Crown Proved the Elements of Murder Beyond Reasonable Doubt?

Manslaughter – Unlawful and Dangerous Act

Was the act unlawful?

Parties

Legislation Cited (2)

Cases Cited (1)