R v Sione; R v Dawson

Principles of law

1. The following principles of law have been applied in my determination of the verdict(s) to be returned. [4]

Onus and standard of proof

1. The Crown bears the onus of proving the guilt of the accused. It must prove each of the essential elements of the offences charged and they are to be proved to the standard of beyond reasonable doubt. [5]
2. The accused did not give evidence. They did not have to. Subject to one exception, they have no onus of proving anything. They are presumed to be innocent. They had a right to silence both before and at trial. The fact that they did not give evidence cannot be used in any way adverse to them. There can be no speculation as to what they might have said if they had given evidence.
3. The exception to this is that it is for Ms Dawson to establish the partial defence of substantial impairment. [6] She must do so on the balance of probabilities [7] .

Inferences

1. Although not a direction of law, I remind myself of the directions usually given to juries about the care with which one must approach the task of drawing inferences. Inferences must be examined carefully to ensure they are rational and consideration must be given to whether any alternative inferences might arise. If they concern an essential element of an offence, the Crown is required to prove that the inference is the only reasonable one, and it must be proved beyond reasonable doubt.

Essential elements required to be proved beyond reasonable doubt

Direct responsibility basis of murder

1. To prove the charge of murder against Mr Sione on the direct responsibility basis, the Crown must prove beyond reasonable doubt: 1. a deliberate act of the accused caused the death of the deceased; 2. the act was done with an intention to kill or inflict grievous (i.e. really serious) bodily harm; and 3. the act was without lawful cause or excuse.
2. A reference to an act includes reference to multiple acts.
3. The Crown contends that the acts of the accused caused the death of the deceased. The Crown will have proved this fact if it has established that the acts of the accused substantially or significantly contributed to the harm which caused the death of the deceased. It is not sufficient if his acts were merely coincidental with the death occurring or were insignificantly connected with it. Whether the acts of the accused relied upon by the Crown substantially or significantly contributed to the death occurring is a matter of fact to be decided on a commonsense basis with an appreciation that it is a matter concerned with criminal responsibility.
4. There can be more than one cause for a death. In this case there is evidence of a subsequent assault upon the deceased by multiple assailants. It is unnecessary to determine what, if any, was the major or direct cause of the harm which caused death. It is sufficient that an act of the accused was an operating and substantial cause of harm which caused death despite the other injuries suffered.
5. "Intent" and "intention" carry their ordinary meaning. They are usually proved by way of inferences drawn from the circumstances in which relevant events occurred and from the conduct and statements of the accused.
6. As to the third element, there is no suggestion of there having been a lawful cause or excuse.

Joint criminal enterprise

1. The law is that where two or more persons carry out a joint criminal enterprise, that is an agreement to carry out a particular criminal activity, each is held to be criminally responsible for the acts of another participant in carrying out that enterprise or activity. This is so regardless of the particular role played in that enterprise by any particular participant. The Crown must establish both the existence of a joint criminal enterprise and the participation in it by the accused.
2. A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The agreement need not be expressed in words, and its existence may be inferred from all the facts and circumstances surrounding the commission of the offence that are found proved on the evidence.
3. The agreement need not have been reached at any particular point in time before the crime is committed, provided that at the time of the commission of the crime the participants have agreed that the crime should be committed by one, some, or all of them.
4. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish that at some point in time an agreement has been reached between them that the crime should be committed.
5. It does not matter whether the agreed crime is committed by only one or some of the participants in the joint criminal enterprise, or whether they all played an active part in committing the crime. A person can participate in a joint criminal enterprise by being present when the agreed crime is committed. All of the participants in the enterprise are equally guilty of committing the crime regardless of the actual part played by each in its commission.
6. The Crown must prove beyond reasonable doubt that the crime which was the subject of the joint agreement was in fact committed. It therefore must prove beyond reasonable doubt that each of the essential elements, which make up that crime, was committed, regardless of who actually committed them. Further, the Crown must prove beyond reasonable doubt that the accused was a participant in the commission of that crime as part of a joint criminal enterprise with one or more persons.

Extended joint criminal enterprise

1. It may be that in carrying out a joint criminal enterprise, one of the participants commits an additional offence that was not the crime that they had agreed to commit but was one that at least one or some of the other participants foresaw might be committed. In such a case, not only would each of those participants be guilty of the offence that they agreed to commit, but those participants who foresaw the possibility of the commission of the additional offence would also be guilty of the additional offence.
2. On this third basis of liability for murder, the Crown alleges the accused were participants in a joint criminal enterprise to assault the deceased but foresaw that in carrying out the joint enterprise one or more other participant(s) in the enterprise might intentionally inflict grievous bodily harm upon him. That would render the participant(s) who intentionally inflicted that degree of harm guilty of murder but it would also render any other participants in the joint enterprise to assault the deceased guilty of murder if the Crown has proved they had that foresight.

Withdrawal from a joint criminal enterprise

1. A person who is part of a joint criminal enterprise to commit a particular crime may withdraw from that enterprise. If they do withdraw, they cease to be criminally responsible for the crime if the other members of the enterprise go on to commit it after the withdrawal.
2. To withdraw from a joint criminal enterprise to commit a crime, a person must take such action as they can reasonably perform to undo the effect of their previous encouragement or participation in the joint enterprise and thereby to prevent the commission of the crime. What is reasonable depends upon all of the circumstances.
3. Usually, this will involve, if it is reasonable and practicable to do so, the person communicating the fact of their withdrawal, verbally or otherwise, to the other members of the joint enterprise in sufficient time before the crime is committed, trying to persuade the other members not to proceed, and notifying the police or the victim of the intended crime.
4. Where an accused decides to withdraw at the last minute, that is, immediately before the offence is committed, they must take all reasonable and practicable steps to prevent the commission of the crime and to frustrate the joint enterprise of which they had been a member. Otherwise, they may have left it too late to withdraw. The example which is often given is that, if the enterprise is to blow up a building with dynamite and a fuse, it is not enough for a member of the enterprise simply to declare their intent to withdraw from the enterprise. If the fuse has been lit, the person must attempt to put out the fuse.
5. There is no onus upon an accused to establish that they withdrew from the joint criminal enterprise. As part of its overall onus of proof, the Crown must prove beyond reasonable doubt that the accused did not withdraw. It will do so by proving beyond reasonable doubt that the accused either did not intend to withdraw from the joint enterprise, or if they did so intend, the accused did not take such action as they reasonably could to prevent the others from proceeding to commit the crime.
6. It is sufficient if the Crown has proved one of these alternatives. Unless the accused did what they reasonably could to prevent the commission of the crime, the accused remains criminally responsible for that crime even though the accused took no further part. It is sufficient if the action taken by the accused was capable of being effective, even though the action failed to frustrate the commission of the crime.

Constructive murder

1. Murder is "taken to have been committed where the act of the accused … causing the death charged was … done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years": Crimes Act, s 18(1)(a). In this case the Crown contends that the accused committed the crime of specially aggravated kidnapping contrary to s 86(3) of the Crimes Act which has a maximum penalty of imprisonment for 25 years.
2. To prove the accused committed that foundational offence the Crown must prove the following five elements: 1. The accused detained the deceased; 2. without his consent; 3. knowing that he was not consenting; 4. with the intention of obtaining an advantage; and 5. the accused was in the company of another person or persons; and 6. actual bodily harm was occasioned to the deceased at the time of the detention.
3. To detain a person means to prevent that person from leaving should he or she wish to do so. It is an interference with the person's liberty. It is enough if the person was detained for only a very short time.
4. Consent must be free and voluntary. Consent is not given if the person is detained as a result of force or threats.
5. The Crown can prove that the accused knew the deceased did not consent to the detention by proving beyond reasonable doubt either that the accused actually knew the deceased did not consent to the detention or that they were reckless as to whether he consented to the detention.
6. If the accused were reckless as to whether the deceased consented to the detention, then they will be taken to know that he did not consent to the detention. The Crown will prove the accused were reckless by proving that the state of mind of the accused was such that they realised the possibility that the deceased was not consenting but they detained him regardless. Alternatively, the Crown can prove the accused were reckless by proving that they could not care less whether the deceased consented to the detention or not and they detained him regardless.
7. The Crown must prove that the accused detained the deceased with the intention of obtaining an advantage. It is not necessary that the advantage actually be achieved. It is sufficient if the accused had the intention of achieving an advantage by detaining the deceased. Psychological gratification is enough to prove this element of the offence. Here, the Crown contends that the advantage the accused intended to obtain by the detention was psychological gratification from assaulting and humiliating the deceased as revenge, retribution or punishment. The Crown must prove that the intention to obtain this advantage existed at some time during the period the deceased was detained. The intention need not exist for the whole of that period.
8. If two or more persons are present and share the same purpose to detain a person for advantage they will be "in company", even if the person is unaware of the other persons.
9. "Actual bodily harm" includes any hurt or injury which interferes with the health or comfort of a person. It need not be permanent but must be more than transient or trifling. Bruises and scratches are typical examples of injuries that can amount to actual bodily harm.
10. If the Crown has proved the foundational offence of specially aggravated kidnapping for constructive murder it is also necessary for the Crown to prove: 1. that during the course of commission of the foundational offence, or immediately after the commission of that offence, one of more of the participants in that offence inflicted blunt force trauma which caused the death of the deceased, and 2. the infliction of blunt force trauma upon the deceased during, or immediately after, the commission of the foundational offence was a possibility which the accused had in mind when participating in the foundational offence.

Intoxication

1. Both murder and specially aggravated kidnapping are crimes of specific intent and so intoxication of an accused may be relevant to whether the Crown has proved the mental element of these offences. [8] It may be taken into account in determining whether the accused had the intention to cause the grievous bodily harm or death for murder and in respect of specially aggravated kidnapping to obtain the advantage of psychological gratification described earlier. It may not be taken into account in determining whether the relevant conduct was voluntary.
2. These specific intentions are a matter for the Crown to prove. In some circumstances, an intoxicated person may act without forming any particular intention at all. There is no obligation on the accused to prove either that they could not or did not act with the specific intention in question.
3. On the other hand, a person may be considerably affected by alcohol and/or drugs and yet still commit an act with a specific purpose in mind. The fact that the person's judgment was affected such that the person acts in a way different to how he or she would have acted if sober does not necessarily mean that the person was not acting with a specific intention.
4. This issue of intoxication was raised on behalf of Mr Sione but not on behalf of Ms Dawson. As previously mentioned, she concedes that all of the elements for murder are established beyond reasonable doubt.

Manslaughter by unlawful and dangerous act

1. If the Crown has proved that a deliberate act of the accused caused the death of the deceased but not that the accused thereby intended to kill or inflict grievous bodily harm then consideration of manslaughter as an alternative would arise. If the Crown has proved that the act was unlawful and dangerous, there could be a verdict of guilty of manslaughter.
2. An act is not unlawful if it was done in self-defence. An act is dangerous if a reasonable person in the position of the accused would have realised that it exposed the deceased to an appreciable risk of serious injury.
3. A verdict on manslaughter might also arise for consideration if the Crown failed to prove the foresight element for extended joint criminal enterprise murder.

Joint trial

1. The accused have been tried together. There is evidence that has been admitted in the case of one accused but not the other. It is necessary to give separate consideration to the case in respect of each accused.

Consciousness of guilt

1. The Crown asserts that certain statements made by Mr Sione were lies told out of a consciousness of guilt. Care is required in deciding what significance, if any, this might have.
2. A lie is saying something untrue, knowing at the time of making the statement that it is untrue.
3. Any lies told by Mr Sione may be taken into account as evidence of his guilt (although it cannot prove guilt on its own) subject to two matters. First, it must be established that the lie relates to an issue that is relevant to the offence alleged. It must relate to some significant circumstance or event connected with that alleged offence. Second, it must be established that Mr Sione told the lie because he feared that telling the truth might reveal his guilt in respect of the charge or charges he faces. That is, he feared that telling the truth would implicate him in the commission of the offences for which he is on trial.
4. People do not always act rationally. Telling a lie may sometimes be explained in other ways. A person may have a reason for lying quite apart from trying to conceal their guilt. For example, it may sometimes be explained as having been told out of panic; to escape an unjust accusation; to protect some other person; to avoid unjustified suspicion of involvement in a crime; or to avoid a consequence unrelated to the offence.

Evidence which may be unreliable

1. Due to potential unreliability, there are two categories of evidence to which warnings and directions apply.

Witnesses criminally concerned in the events

1. First there is the evidence of BL, BE, Harley Bartolo, Thomas Pakau and Rebyll Oaariki who were involved in the events of 4 August 2021.
2. The courts have a great deal of experience concerning the reliability of evidence given by a witness who participated in some way in the alleged crime. That experience has shown that the evidence given by such a witness may be, although it is not always, unreliable. As a result, such evidence must be approached with considerable caution.
3. There are many reasons why the evidence of such a person may be unreliable. Possible reasons include that the witness may want to shift blame from themselves onto others and to justify or minimise the severity of their own conduct. This may involve constructing untruthful stories to downplay their own role and play up the part of others, even to the extent of blaming innocent people. Such witnesses may also be motivated by revenge, dislike, or hostility. They may be motivated to give false evidence blaming others in order to qualify for a discount on their own sentence.
4. There may be other reasons or motives why false evidence has been given by such a witness. It is not for the accused to establish what they might be.
5. Experience has shown that once such a witness has given a version to the police which incriminates an accused, he or she may feel locked into that version, even if it contained inaccuracies or even if it were substantially untrue.

Hearsay evidence

1. The second category of evidence which may be unreliable is hearsay evidence. There is a considerable amount of such evidence which has been adduced. There were occasions when witnesses said something that was inconsistent with what was said in their statement. The Crown made a number of applications for leave, in effect, to cross-examine witnesses about the content of their statements. Sometimes the witness accepted that what was in their statement was correct and truthful but some witnesses either did not recall what was said in the statement (e.g. Robert Leuthwaite [9] ) or insisted that what was in the statement was wrong (e.g. Matthew Douglass [10] ). Where the evidence of what was in the statement was concerned with a significant matter (it was not always) and it was not able to be tested in cross-examination because the witness could not recall it or claimed that it was wrong, that is a matter to be taken into account as indicating that the evidence might be unreliable.

The Crown case

1. The events in question occurred on Wednesday 4 August 2021 at a home in Perigee Close, Doonside. It is a north-facing two-bedroom home with front and back yards. Entry by foot is obtained by walking up a short driveway and footpath and then up to a verandah. The front door opens to a living room which continues to the back (south) wall of the house past a hallway and then the kitchen which are both on the right. The hallway has two bedrooms on the north side and a bathroom and laundry on the south. Access to the rear yard is available through the laundry.
2. The deceased was assaulted in the first bedroom, the one closest to the lounge room. It is a room of modest size, about 2.5m x 3.8m. It was sparsely furnished; there were two mattresses on the floor, one of them an inflatable type. The only other item in the room of any size was a pram.
3. The home was occupied by Kayla Dawson and her partner, Harley Bartolo. They both have an intellectual disability. [11] Other people frequented the house including several teenagers, who cannot be identified because they were aged under 18 years, [12] as well as Mr Sione and Ms Stacey Pale. Ms Pale was sometimes referred to as Mr Sione's partner.
4. About 700m away [13] was a home in Mikado Way, Doonside. This is where Mr Sione and Ms Pale were staying along with a number of other short-term occupants including young persons. DS, who was couch-surfing there with his girlfriend DH, described an average day as involving the consumption of alcohol. [14] In fact, alcohol and cannabis appears to have been an attraction for people, including the juveniles, to congregate at one, the other or both homes.
5. The deceased boy was Jason Galleghan, aged 16. He was acquainted with Ms Dawson. The Crown case is that he was being blamed for having stolen some AirPods from her and as an act of revenge, retribution or punishment he was lured to the home in Perigee Close for the purpose of being "bashed". He was assaulted so badly that he died from his injuries two days later, on Friday 6 August 2021.
6. The adults who were at the Perigee Close home on the afternoon when the assault occurred were Mr Sione, Ms Pale, Ms Dawson, Mr Bartolo, Thomas Pakau, and Rebyll Oaariki. Young persons who were present were BL, BE, AD, TB and MM. Some of these people had stayed in the home overnight while others came during the day. BE's girlfriend JB attended while the assault was occurring and left with BE after. She had no involvement.
7. The ages of these people are relevant in a number of ways. It is an agreed fact that as of 4 August 2021 they were: Bartolo 29 Dawson 19 Oaariki 24 Pakau 18 Pale 36 Sione 32 AD 13 BE 14 BL 15 DH 15 DS 17 TB 13 MM 15

1. Mr Sione was referred to by some people as either "uncle" [15] or "Dad". [16] BL said this was because "he's like a father figure". [17] Mr Pakau referred to the young persons as Mr Sione's "little minions" or "little power rangers". [18]
2. The deceased was known to Ms Dawson for some time prior to 4 August 2021; she made claims after the event to having known him for 7 years (below at [228]) or 15 years (below at [227]). Telephone records for the preceding week indicate calls were made and text messages were exchanged on a daily basis. There was almost the same frequency of contact between Mr Sione and Ms Dawson.
3. There is evidence of people being involved in an activity referred to as "erching", meaning thieving from people, homes or cars. BL said that he started doing this with Mr Sione and Ms Dawson. [19]
4. There was a variation in the ability of witnesses to recall matters of detail such as when events occurred and who was present at the time. The reasons for this will be discussed later (see [263]). CCTV recordings from various domestic security cameras [20] as well as mobile phone data [21] are helpful in placing events in a more accurate sequence. Where a precise time is given in the following narrative of the events it has been obtained from those sources.

Events on 4 August 2021 preceding the assault of the deceased

1. Ms Dawson and Mr Bartolo as well as BL and BE stayed overnight at the Perigee Close home. BL said that Mr Sione stayed the night but left in the morning [22] but this is not supported by any CCTV footage. Ms Dawson went out at 9.02am and returned at 12.31pm. Mr Bartolo, BL and BE remained there until after the assault had taken place later in the afternoon.
2. Ms Pale arrived at 1.58pm. Mr Sione arrived with MM and AD at 2.33pm. Detective Senior Constable Leonard agreed in cross-examination that at 2.05pm Mr Sione had stolen two bottles of spirits at the BWS store in Doonside. [23]

BL's account interspersed with references to objective evidence

1. BL recalled that on the morning of 4 August 2021 he was present with others, "kicking back, smoking cones". He nominated those who he thought were present. Mr Sione had left by this time. He said that Ms Dawson seemed angry and told him that the deceased had stolen her AirPods while she was sleeping. He responded, "Should we bash him"? Ms Dawson agreed and told him to contact the deceased and tell him to come over, ostensibly to go "erching". [24] In cross-examination he agreed it was more him saying, "Shall we call him?" rather than her telling him to "call him over". He explained, "it was a joint discussion". Counsel for Ms Dawson, Mr Johnson, assured BL that he was "not suggesting that she wasn't agreeable to all of this". [25]
2. BL commenced a series of communications with the deceased at 12.46pm. [26] This was shortly after Ms Dawson arrived home at 12.31pm. [27] The deceased called her five minutes later and the call lasted for almost 2½ minutes. [28] It is not apparent whether this was before or after Ms Dawson complained about his supposed theft of her AirPods. BL's communications included a message at 12.55pm to the deceased: "2.00 Jason we go kb [sic - kickback] for bit and then go roll cunts". [29] BL said this was "a lure for him to come over". [30]
3. The deceased caught a train at Sydenham at about 2.30pm. It is an agreed fact that he had no facial injuries at the time. [31]
4. The plan was that people would meet the deceased at Doonside railway station and according to BL, that was where he was going to be bashed. BL said that after Mr Sione, MM and AJ arrived at 2.33pm BE told them, "We are going down to the train station to bash someone". [32]
5. Ms Dawson was communicating with the deceased while he was enroute to Doonside. There was a call of just over two minutes at 2.44pm. At 2.55pm she sent a message, "Where you". BL said he was with her when she sent this message and said, "we [namely himself and BE] were getting pissed off because he was taking his time". [33] Ms Dawson's calls to the deceased from 2.56pm to 3.32pm were either unanswered or resulted in very brief connections. At 3.04pm the deceased's number was saved in her phone as "dog cunt". There was a 53 second call at 3.35pm, further missed or short calls at 3.40pm to 3.45pm, and then a call that lasted for 8½ minutes at 3.46pm.
6. BL said they were in the lounge room and the proposal being discussed was that the deceased would be bashed at the railway station. Present with him were Ms Dawson, BE, TB, AD and Mr Sione. [34] A group photograph taken at 2.57pm shows them all except Ms Dawson but including MM on the front verandah. [35]
7. Ms Dawson, BL and BE left to go to the railway station at 3.44pm. Ms Pale had left at 3.23pm. Thomas Pakau and Rebyll Oaariki arrived at the house while they were gone, at 3.50pm.
8. There appears to be no dispute that there was a proposal to bring the deceased back to the house where he would be assaulted. BL must be mistaken in his recollection that it was proposed to assault the deceased at the railway station which in some fashion which was not explained, changed to a plan to assault him at the Perigee Close home. BL said in cross-examination that "when we got to the station everyone shook his hand and, like, we went from there and then it just happened to be that he come back with us". [36] Mr Johnson drew BL's attention to text messages sent by BE to his girlfriend (see below at [94]) showing that prior to their departure for the railway station BE was talking about bringing the deceased back to the house. [37] BL's evidence in cross-examination that Mr Sione was part of the plan to bash the deceased at the railway station is illogical. [38]
9. The deceased alighted from the train at Doonside at 3.54pm. He was met by Ms Dawson, BL, BE and Ms Pale. They all walked back to the Perigee Close home, arriving at 4.08pm. [39]
10. The narrative will be paused in order to review the evidence of BE and Mr Bartolo.

BE's account

1. BE said he was with AD and another friend when he met Mr Sione about three weeks prior to 4 August 2021. [40]
2. BE stayed the night of 3 August 2021 at the Perigee Close home as had BL. His recollection was that Mr Sione had as well and that he was still present the next day when BE got up. He said there was a conversation in which Ms Dawson claimed that the deceased had robbed her and scared her. She was upset. Mr Sione responded by saying, "Bring him here and we'll talk to him". He said Ms Dawson contacted the deceased and said something about having a drink and then going "erching". He did not know if Mr Sione was present at this point. [41]
3. As indicated earlier (at [74]-[75]), CCTV footage confirms Mr Sione arrived at 2.33pm. BE was informed of that in cross-examination and said if Mr Sione did not say "Bring him here and we'll talk to him", someone else must have. [42] And if Ms Dawson did not contact the deceased inviting him over to go erching, then it was BL. [43]
4. After the deceased had been contacted, although BE did not know who said what exactly, he said there was some talk about "maybe hitting him a couple of times". [44]
5. BE was taken to the mobile phone data [45] which showed that at 1.50pm he had sent a message to someone which said, "me n 2 of the boys are bashing someone to day Imao". He said this was because "people were saying that we were going to bash him", namely BL and maybe MM. [46] This objectively supports the evidence that it was a topic of conversation in the house at this time, except for the fact that MM was not present until she arrived at 2.33pm with AD and Mr Sione.
6. That text message was referred to by Mr Johnson in his cross-examination of BL. He asked who "2 of the boys" were in addition to himself and BE replied, "It would have been me and [TB]". From that, Mr Johnson inferred that TB must have arrived at the Perigee Close home sometime between the proposal arising at about 12.45pm and the time of that text at 1.50pm. BL agreed. [47]
7. BE was referred to the photograph of himself and others, including Mr Sione, at the front of the house taken at 2.57pm. He said at that time there was talk about going to pick the deceased up and bringing him back to house to bash him. [48]
8. BE said that MM, who was "drunk" and "seemed pretty in an angry mood" was telling people whether she cared whether they got involved in it or not. He could not remember where Mr Sione was at this time and did not think he was saying anything. [49]
9. Text messages sent by BE to his girlfriend at 3.36-3.37pm referred to "he" being nearly at Doonside station "and we gotta take him from doonside station [to] here … the house". [50] He thought this was based upon communications sent by the deceased about his movements.
10. When asked how he knew they had to take the deceased from the station to the house, BE said it was talked about by the group, including Mr Sione and Ms Dawson; it included all of the people in the photograph taken at 2.57pm. When asked specifically why he had to take the deceased to the house, he said, "Because I got told to" by "Richard", and it was so "they could bash him". [51]
11. From 3.48pm to 3.51pm there were messages between BE and MM about the imminent arrival of the deceased. They included her saying, "bring him to the house if yous fuck him up without me I'll kill yous all". He sent her further messages at 3.57pm that they were with "him" and they were on their way back. [52]
12. Once they arrived back at the house they went into the room "where the incident took place". [53]
13. CCTV footage recorded the arrival at the house of Ms Dawson, Ms Pale, BL, BE and the deceased at 4.08pm. [54]

Harley Bartolo's account

1. Mr Bartolo recalled conversations, calls and messaging which were concerned with people attempting to "get him over here". This was mainly BL, MM and Ms Dawson. It was concerned with Ms Dawson's headphones which the deceased had apparently stolen. They were saying they wanted to badly harm him. In his interview with police on 6 August 2021 he had said "these people just wanted to stomp on his head over something little". That was the truth. He thought it was BL who was saying that. MM was there at the time but Mr Sione was not. [55]
2. There was some to-ing and fro-ing about whether Mr Sione had to have been there if MM was there and Mr Bartolo was told that the CCTV footage showed they both arrived at the same time. He then referred to both MM and BL talking about stomping on the deceased's head. They were talking "loud enough". [56]
3. He said that MM and BL "wanted to bash him, stomp on his head" and Ms Dawson thought it was funny. She was laughing about the whole situation. MM seemed to be the person who was directing the others on what they were going to do. [57]
4. Mr Bartolo understood that the deceased was to travel by train to Doonside and he would be brought back to the house "so they could do what they were talking about earlier that same morning [sic]". They had kept harassing and pestering him over the phone with calls and messages; this was mainly by Ms Dawson. [58]
5. After BL, BE and Ms Dawson left to go to the railway station, the others in the house were "running around, saying they were going to wait in the bedroom and looking for stuff they couldn't find, like a weapon or something". They were talking about wanting to "stomp on his head, kick him". They said, "they just wanted to completely fuck him up". They were "angry, moody". He first said Mr Sione had left but then agreed (after leave was granted under s 38 of the Evidence Act 1995 (NSW)) that he was present while BL, BE and Ms Dawson went to the railway station. They were also "just telling me to keep my mouth shut and not tell anyone about it". [59]
6. In cross-examination, Mr Bartolo agreed with a suggestion that "it may not be the case that anyone in fact used the word 'stomp', it was a feeling that you had that that was what they wanted to do?" [60] His evidence that there was talk about wanting to "bash", "kick" and "completely fuck him up" was not challenged.

BL's account

1. According to BL, once inside the house the deceased was directed and led into the first bedroom off the hallway by Mr Sione. BL entered the room and MM was also present. Mr Sione yelled at the deceased to "sit the fuck down". He sat on the inflatable mattress and Mr Sione stood in front of him. Mr Sione screamed at the deceased, demanding, "Where's the AirPods?" and "Why are you stealing shit from Kayla?" The deceased said that he did not know anything about it. Then Mr Sione demanded that the deceased take off his clothes, which he did. He asked one more time, "Where the fuck's the AirPods?" but again the deceased denied having them. [61]
2. Mr Sione then started hitting him. He punched him in the mouth and started kicking him in the face. When asked how many punches he saw, BL said, "a lot … maybe like 10, 15". In describing the kicking, he said Mr Sione stomped on him, four or five times, to the face. The deceased's face was red. He kept saying, "Please stop". He was backed up in the corner and Mr Sione "just kept hitting him", "punching him in the face". The deceased was trying to protect his face, "like he kept moving back". The punching, kicking and stomping went on for five minutes. [62]
3. Initially in the room were the deceased, Mr Sione, MM and BL. Other people came in: Ms Dawson, TB and BE. Thomas Pakau came in and told Mr Sione to stop. Mr Sione stopped and left. He did not say anything before he left. At this point, the deceased's face was red, a bit swollen "around the cheeks and that" and there was blood in his mouth. [63]
4. In cross-examination, BL said that Mr Pakau pulled Mr Sione back and he agreed that at this stage he got involved and tried to stomp on the deceased's head. Mr Pakau stopped him as well. He agreed Mr Pakau said, "Enough, no-one's to touch him". Mr Pakau then left the room and Mr Sione left. [64] Mr Pakau was later called to give evidence and it was to the same effect. [65]
5. BL said that "shortly after" Mr Sione left, "that's when the recording started". People in the room "just started laying into him". After they had finished the deceased was laying behind the door. He was asked in cross-examination to explain what he meant by "shortly after" and he said, "couple of minutes". [66] Witnesses' estimates of periods of time (as well as distance and the number of times something occurred) are often inaccurate, particularly when a witness had no reason to pay attention to such detail at the time. This estimate would appear to be highly unlikely given there was no explanation or description of inactivity for such a period.
6. The same caveat applies to BL's estimate in cross-examination that the assault upon the deceased had restarted one or two minutes before the first recording commenced. [67]
7. The case for Mr Sione was put to BL. He disagreed with a proposition that when the deceased was brought to the house Mr Sione, Ms Dawson and the deceased were in the bedroom by themselves. He did, however, agree with the following: 1. Mr Sione was angry and was questioning the deceased. 2. Mr Sione interrogated the deceased about whether he knew Ms Dawson and asked whether he had stolen anything from her, her AirPods. 3. The deceased denied the theft. 4. The deceased was sitting on an inflatable mattress and Mr Sione was standing in front of him. 5. Mr Sione slapped the deceased in the face twice. 6. After a while the deceased admitted to taking the AirPods.
8. BL disagreed that Mr Sione punched the deceased to the face once and maintained that he assaulted him by stomping on him and punching him in the face continuously for five minutes. Counsel pressed him for an estimate of how many times he punched. He said, "I'd say like five to ten maybe … maybe, wasn't counting". He was asked how many stomps and he said, "Well, two to three". They were to the face. He agreed that Mr Pakau intervened and there was no further violence for some minutes. [68]
9. In re-examination BL was asked why he was involved in the assault after Mr Sione had left the room. He said, "I don't know, I felt like I had to be". [69]

BE's account

1. BE said that when they went into the bedroom the people present were Mr Sione, the deceased, BL and himself. (He also said that Thomas Pakau and Rebyll Oaariki were there but that is clearly incorrect.) He thought Ms Dawson stayed in the lounge room. [70] Later in his evidence, the Crown Prosecutor was granted leave to question BE pursuant to s 38 of the Evidence Act. After being reminded of what he had said in his statement of 2 June 2023, BE agreed that Ms Dawson and AD had also been present in the room before Mr Sione's assault upon the deceased commenced. [71] In cross-examination that was somewhat confusing, particularly for a very young and inexperienced witness, after being told by counsel for Ms Dawson that it was a "fact" that she initially remained in the lounge room, he agreed that she did. Counsel made an attempt to clarify what he was putting but it is unclear whether BE understood. [72]
2. The deceased sat on a bed after being told to do so by Mr Sione. Mr Sione also sat on the bed. Mr Sione started getting angry, raising his voice and saying, "You want to fuck with my family?" He then got up and was holding the deceased by the hair with his left hand while punching him with a closed right fist, maybe about 20 times. The deceased was trying to block the punches but fell off the bed and tried to go to the corner. He was sitting with his knees up and he was holding his hands to his face. Mr Sione continued punching him while calling the deceased "a bunch of names" (that BE could not recall) and saying, "You see these people, that's my family. Don't fuck with them". [73]
3. BE thought that Mr Sione may also have kicked the deceased, towards the face and around the head. After refreshing his memory from his statement, he recalled that Mr Sione kicked the deceased in the face three or four times while the deceased was in the corner of the room, trying to block the kicks. BE described him as "cowering". [74] In cross-examination he repeated the estimate of punching "maybe 20 times, something like that" and kicking to the face "maybe four times, something like that. Three or four". [75] He conceded he could be wrong about the number of punches. [76]
4. Thomas Pakau came into the room and stopped the assault by grabbing Mr Sione and pushing him away from the deceased. Mr Sione turned around and pushed Mr Pakau away. According to BE, Mr Pakau then said, "Oh fuck, whatever - do whatever you want then" and left the room. [77] He estimated that Mr Sione left the room "maybe 20 seconds after" Mr Pakau left. [78]
5. BE was asked what happened when Mr Sione stopped punching and kicking the deceased. He said: [79] A. I think that might have been the time when he was saying that he was going to leave it to us. Q. When you say, "that he was going to leave it to us", what did he say? A. "I'll leave it to my family to finish you off".
6. He was asked to recall the exact words that Mr Sione had used and he replied: [80] "I'll leave it for the younger ones to finish you off."
7. BE thought the "younger ones" was a reference to the young persons who were present: BL, MM, TB, AD and himself.
8. BE was recalled for further cross-examination 17 days after his evidence had concluded. He had no prior notice of what he was to be asked about. It was for the purpose of Mr Ramrakha rectifying an omission of putting to him that it was possible he did not actually hear Mr Sione say this. The defence case was that BE had incorporated it into his account after having read in the statement of facts in relation to his own sentencing that another witness (Robert Leuthwaite) had claimed that Mr Sione did. BE conceded that this was possible: "I may have thought he said it because I read it, but I don't know". [81] With this concession it is necessary to put aside this aspect of BE's evidence.
9. BE recalled the removal of the deceased's clothing. He thought this occurred, "maybe after Richard stopped hitting him". Mr Sione and possibly BL tried to forcefully take them. He could not remember who else. He thought Mr Sione grabbed some of the clothes and then left. At this stage, the deceased's face was "all puffed up and like purplish I guess you'd say". [82]
10. BE said that after Mr Sione left "I think we all started getting involved". He said he was referring to BL, AD, TB and himself. MM was "screaming stuff" that BE could not remember. She was telling people to record it. When the assault finished, the deceased was not breathing. BE tried to pick him up and then let him go; he fell because he could not walk. BE said they did not know what to do. He had the deceased in the hallway "like a metre or two away" from the doorway to the bedroom when he dropped him. He was left in that position and the young ones left the house.
11. BE agreed with the following propositions that were put to him by Mr Ramrakha: [83] 1. The deceased was brought to the property from the railway station. 2. There was some interaction with people who were at the house outside the house before he entered. 3. Inside the house there was some interaction involving the deceased and other people in the lounge room. 4. Shortly after, Mr Sione, Ms Dawson and the deceased went to the bedroom. 5. The deceased sat on the other mattress, not the inflatable one. 6. Mr Sione was standing in front of him, swearing about stealing from Ms Dawson; questioning him about the theft of AirPods. 7. The deceased denied stealing them.
12. BE disagreed that Mr Sione slapped the deceased twice. He agreed that he punched him to the head or the face. It was not only one punch. Mr Pakau came in but not that early. He pulled Mr Sione away from the deceased but he did not succeed in stopping any further assault by Mr Sione. BL may have tried to get involved at this stage. Mr Pakau did not stop BL. Mr Pakau did not say things like, "He's learnt his lesson, that's enough, it's finished". [84]
13. BE maintained that Mr Sione hit the deceased again after Mr Pakau had intervened. Mr Pakau left and Mr Sione left about 20 seconds after him. [85]
14. As to the deceased's clothing being removed, BE said that some was taken off when Mr Sione was in the room, more than just his jacket. Ultimately all his clothing was removed except for his boxer shorts.

Thomas Pakau

1. Mr Pakau was at the Mikado Way home with others who were drinking. Mr Sione left to get some more alcohol. [86] He received a message from MM asking him to come to Ms Dawson's. [87] He went there with Rebyll Oaariki. CCTV indicates they arrived at 3.50pm.
2. Mr Pakau sat on a couch in the lounge room. [88] The deceased arrived (4.08pm per CCTV) and was talking to "the boys" outside. [89] Mr Pakau agreed that Mr Sione and the deceased went into the bedroom but he did not see Ms Dawson go there. [90]
3. Mr Pakau heard the sounds of what he thought was the deceased being assaulted. The inferences he drew are apparent in the following passage from cross-examination: [91] Q. And you heard some banging noises, is that correct? A. Yeah, Ritchie smashing. Q. Well, that's what you thought he was doing? A. No, it was what he was doing. It's not what I thought. He was hitting him, throwing him on the wall, hitting him. Q. You were outside the room, correct? A. Yeah, then I got in and I seen one of the hits that he done and then I stopped it, yeah. Q. That's what you saw, when you walked in you saw Ritchie hit him once, correct? A. He hit him more than once, mate. Heaps. I only walked in to see that one hit man. It's obvious. Q. But that's something that you understood, you understood that he was hitting him from what you heard, is that right? A. Yeah, numerous times, heaps of times, mate. Q. You didn't hear the boy Jason screaming or yelling or anything like that? A. No. Q. He went [sic] screaming or yelling? A. No, he didn't. Q. You said in your evidence that you heard big hits, is that right? A. Yeah, banging on the wall. Q. And banging on the wall? A. Yeah, him. Q. When you say "big hits", do you mean like the sound of someone being slapped around? A. No, he was giving him body shots to the head. Fuck, everywhere, man.
4. Mr Pakau said the banging noises started "like two minutes" after the people went into the room and Mr Pakau went to the room "five seconds after I heard him, the hits, not too long". [92]
5. After he intervened Mr Sione did not hit the deceased again. However, BL tried to kick his head and Mr Pakau prevented him.
6. Mr Pakau said the deceased was in the corner of the room, sitting on the floor, crying. He said, "He was trying to block, hide himself". He had "swollen eyes", "big swelling on his face" which was "purple like". [93] However, in his police interview he said there was bruising but no swelling. He saw the video recordings and the bruising that was visible was nothing like he had seen. [94]
7. Apart from a jacket, no other item of clothing had been removed when Mr Pakau was in the room. [95]
8. Mr Pakau agreed that Mr Sione was facing away from Mr Pakau as he entered the room. He was asked if it could be that Mr Sione was actually slapping the deceased and not punching but he disagreed. He agreed that he did not see Mr Sione kicking. [96]
9. Mr Pakau took two bottles of Mr Sione's alcohol and left the house with Mr Oaariki. It was suggested that Mr Sione pursued them in order to retrieve the alcohol and was not "fleeing from the cops". Except that it might provide a partial explanation for Mr Sione diverting his attention away from the deceased in the bedroom, the point is of no significance. It does not have any bearing on Mr Leuthwaite's evidence that Mr Sione said, "I had to take off before the cops came" (see below at [178]). There is nothing inherently unlikely about him having an interest in pursuing his bottles of alcohol and also claiming after the event that he fled before any police arrived.
10. Mr Pakau was criticised by Mr Ramrakha as being "surly" and "visibly hostile" towards Mr Sione. Nonetheless he was relied upon for supporting the defence case that there was a gap of some minutes between the first and second phase of the violence. [97] Mr Pakau certainly did demonstrate a negative attitude towards Mr Sione but that was clearly because he took a dim view of what Mr Sione had done. It does not follow that his evidence (of what he actually saw and heard rather than opinions he formed) could not be accepted.
11. The Crown Prosecutor made a point in his closing address that there had been no suggestion of anyone other than Mr Sione having assaulted the deceased before Mr Pakau entered the bedroom. [98] This was accepted by Mr Ramrakha in his address, although it was his argument that the Crown should accept Mr Pakau's evidence that he went to the room after having heard the noises for "five seconds" (or as he later submitted, "a matter of seconds, maybe some seconds, extended seconds even"). [99] In all the circumstances, a period as short as that is highly unlikely. Mr Ramrakha subsequently accepted a longer period - that Mr Sione was involved in "a solo assault … lasting no more than two minutes". [100]
12. It follows from the foregoing that the noises that Mr Pakau heard before entering the room were a result only of what Mr Sione was doing to the deceased. This is consistent with the essence of BL and BE's evidence: that the assault by Mr Sione was one involving considerable violence.

Rebyll Oaariki

1. Rebyll Oaariki was also staying in the house in Mikado Way where he was involved in the daily alcohol and cannabis consumption. At some stage after he woke on 4 August 2021 Mr Pakau told him of more alcohol being available at the Perigee Close home and they went there. [101]
2. After finding some alcohol in the kitchen, Mr Oaariki sat on a couch in the lounge room. A few minutes later a group of people walked in which included Mr Sione and Ms Dawson. Mr Sione appeared to be in an angry mood. Mr Oaariki asked him why he had not returned to the Mikado Way home (presumably after having gone out in search of more alcohol). Mr Sione told him to "Fuck off". [102]
3. The group went through to the hallway. Mr Oaariki next heard banging noises. There were "a few" and they were "pretty loud". There was also a lot of swearing. He recognised Mr Sione's voice. After a grant of leave under s 38 of the Evidence Act, Mr Oaariki agreed that he had truthfully told police he heard Mr Sione say, "Fuck, fucking gronk". He said this was "yelled" with a tone of voice with "really aggressive signs". Mr Pakau then went to the room. [103]
4. At some point MM gave him a jacket (the deceased's). Concealing a bottle of alcohol under the jacket, he left the house with Mr Pakau and they returned to the Mikado Way home.
5. Mr Sione must have come into possession of the jacket later at the Mikado Way home as he was wearing it at the time of his arrest later in the night: see below at [199]-[200].
6. Mr Oaariki was criticised in Mr Ramrakha's closing address for having a poor memory of events and being intoxicated. It was submitted that his evidence "really adds very little to the narrative of events". [104] It is, however, supportive of the narrative of Mr Sione being in an angry mood, he could be heard in the bedroom yelling and swearing at the deceased, and there were loud banging noises.

Harley Bartolo

1. Mr Bartolo said he was in the lounge room when the people came back from the railway station. Ms Dawson went to the bedroom and he heard her speak to someone. He thought she was calling out to the deceased but in cross-examination he could not say who she was talking to. [105]
2. Mr Bartolo spoke to the deceased while he was in the lounge room and told him he should leave. (He said this was while the others were down the hallway [106] ) He was concerned for the deceased's safety but the deceased laughed a little and went down the hallway. MM threatened to come out of the bedroom and grab him; she was "laughing, acting violent, aggressive". She asked him about the headphones and told him that "he wasn't going anywhere". When the Crown Prosecutor suggested that it was Mr Sione asking the deceased about the headphones Mr Bartolo said, "That could be true, but for me not being in that room, I can't say anything on that". [107]
3. Mr Bartolo at some point went down the hallway and "took the phone off Kayla". He said that she was "about to record something that I didn't want anything to be recorded on". (He said she subsequently asked for it back multiple times. [108] ) He saw the deceased sitting on the bed and "they were starting to undress him". He was laughing and kicking his legs up as Mr Bartolo was walking out. He was reminded he had told the police that the deceased was laying down on the mattress, kicking his legs and pushing them away with his hands. He then heard "a lot of banging noises, like someone was kicking the wall or something". It went on for what "felt like forever". [109]
4. Mr Bartolo also recalled that "they were trying to look for his phone but they couldn't find that and same with his wallet". [110] Mr Bartolo said that while that and the removal of clothing was occurring he heard the deceased telling them to leave him alone and "they were laughing" and "just told him to shut his mouth". Detective Leonard agreed in cross-examination that police made a thorough search of the Perigee Close home and did not find the deceased's phone or wallet. [111]
5. Mr Bartolo agreed with Mr Ramrakha that "there was a break in the assault, like there was a period of time when Jason wasn't being assaulted", but he added, "it wasn't really long". [112]
6. Mr Bartolo recalled that when he went into the room to take Ms Dawson's phone he saw either BL or TB hitting the deceased. He did not see Mr Sione in the room. The people he had seen go into the room were BL, BE, TB, MM and Ms Dawson. At the point of everyone leaving, MM said she thought the police were coming and "told me to keep my mouth shut about what happened at the house". [113]
7. Mr Bartolo left with Ms Dawson. The deceased had not left the bedroom. [114]
8. In cross-examination by Mr Johnson, Mr Bartolo said once people had gone down the hallway (towards the bedroom) the only voice he heard questioning the deceased was MM's voice. He did not hear Mr Sione's voice as Mr Sione was not there at the time. "He turned up after". [115] However, in cross-examination by Mr Ramrakha, Mr Bartolo said that he did not see Mr Sione until he left the house "halfway through"; presumably meaning halfway through the assault. He only came to know that he was present at the start because Ms Dawson had told him. [116]
9. This, and the evidence in [151] above, tends to indicate that although it was Mr Sione's case that he was present in the bedroom at the start of the interaction with the deceased, [117] Mr Bartolo's memory is that he first saw him when he left halfway through the event in the bedroom (which would be after the intervention of Mr Pakau). It also indicates that Mr Bartolo may not have gone to the bedroom and taken the phone from Ms Dawson until after Mr Sione had departed.
10. Mr Ramrakha's cross-examination concluded with Mr Bartolo agreeing that the first occasion he went to the bedroom was when the deceased's clothes were being taken off and at that stage he did not see the deceased with any injuries to the face. [118]
11. Care is needed in making an assessment of Mr Bartolo's evidence. With respect, he is intellectually challenged. (Mr Ramrakha described him as "a very simple sort of fellow". [119] ) He had a tendency to assert matters that were not directly witnessed by him but which he had merely heard from others or had assumed. One of a number of examples of him assuming something was his evidence that as Mr Sione was leaving, he was not happy (in re-examination he said "angry") about what the others were doing with the deceased in the room because that was the room Mr Sione was staying in at the time. [120] He gave no evidence of Mr Sione saying anything to convey the reason for his apparent facial expression.

The neighbours

1. During the course of the assault upon the deceased there was some interaction with occupants of the house next door. CCTV footage indicates this was around 4.32pm. [121] The significance of this to the Crown case was for a relatively minor point to be made in submissions on the substantial impairment issue concerning Ms Dawson. [122] Otherwise it only has significance in confirming that Ms Dawson was absent from the room during the course of the assault upon the deceased for a short period when she was on the verandah placating neighbours disturbed by the terrible sounds emerging from her house by saying something to the effect that it was "just a family affair".

The video recordings

1. Video recordings of the assault of the deceased by the young persons were found on the phones of Ms Dawson, BL and TB. There is a considerable degree of overlap of the eight individual video files. On the Crown case, based upon the evidence of a digital forensic analyst, they record events for about a four - minute period from approximately 4.21 to 4.25pm and then another five - minute period from approximately 4.36 to 4.41pm. [123] This cannot be correct. For example, recordings 1 and 3 as numbered in Exhibit G are said to have commenced at 4.21.32pm and 4.23.35pm respectively but what is recorded at almost the beginning of recording 1 is almost identical to the commencement of recording 3. The overall period of recording must be less than indicated above.
2. Viewing the recordings is a most confronting experience. BL, BE, TB and AD are the most active participants in the punching, kicking and stomping. MM is most engaged with encouraging the violence of the others, expletive-laden verbal abuse of the deceased, as well as committing some acts of violence. Ms Dawson is not seen to inflict any physical violence but she participated by making some of the recordings, interjecting with comments about what was occurring, and laughing as she said she was transmitting a recording: "I'm sending it to Johnno fuck you".
3. During one passage the deceased was commanded to repeat a number of statements relating to postcode gangs, "Fuck 21", "27 on top" and the like. BL maintained that the original reason for the assault was because the deceased had stolen Ms Dawson's AirPods. These gang references were "like a power trip", "big-noting". [124]

The aftermath

1. CCTV footage captured the following in relation to the house in Perigee Close: [125] 4.16pm Thomas Pakau and Rebyll Oaariki walk out. (They are first seen on CCTV walking towards the front gate at 4.16.57. [126] ) 4.19pm Mr Sione ran from the house and down the street. (He is first seen on CCTV running towards the front gate at 4.20.01. [127] Rounding down a few seconds, this is 3 minutes after Messrs Pakau and Oaariki. [128] ) 4.21.32 The first video recording in the bedroom commenced with the assault by multiple assailants already underway. [129] 4.41.47 The last video recording in the bedroom concluded at 4.41.47. [130] 4.35pm BE walked out to the front gate but seconds later returned to the house. 4.42pm MM, TB and AD left but TB returned. 4.45pm Ms Dawson, Mr Bartolo, Ms Pale, BL, BE, TB and JB left.

1. Ms Dawson and Mr Bartolo returned to the house at 5.11pm. She rang 000 at 5.35pm. [131] She resisted attempts by the operator to perform CPR, even when the operator offered to assist with instructions. She agreed to get a neighbour to assist. Ambulance and police officers arrived from 5.44pm onwards. [132]
2. BL, BE, TB and JB went to the nearby home of Jordan Crow. They showed him a video of the assault and he said, "No, you can't be here". [133] While there, BL had a telephone conversation with Ms Dawson in which she told him that the deceased was not breathing. [134]
3. Mr Crow was not called to give evidence but Mr Johnson led from Detective Leonard, the officer-in-charge of the investigation, that Mr Crow said in a statement made on 5 August 2021 that the four people arrived "totally out of breath and were huffing and puffing". He asked them why and BL replied, "We just punched the fuck out of a boy and he's more than likely dead". BL was asked why and replied, "Kayla was stolen off and we found out it was him, so we flogged the fuck out of him. I called him and said, 'let's go searching [perhaps "erching" [135] ] and we bashed him when he got there." [136]
4. The four split up when they left Mr Crow's house. BE and his girlfriend went with TB to the railway station and caught a train. [137] BL went to the Mikado Way home. Others there included Mr Sione, Ms Dawson, AD, MM and Messrs Pakau and Oaariki. They were in the lounge room where there was conversation about what had happened at the Perigee Close home. Videos were shown and Mr Sione was "laughing and carrying on". [138]
5. DS, who was 17-years' old, was "couch surfing" at the Mikado Way home where the average day involved "most of the time alcohol". [139] He was aware that Mr Sione was intending to go to Ms Dawson's home on the afternoon of 4 August 2021. He and his girlfriend, DH, had had enough to drink so they went to bed. [140]
6. They were woken in the night by various people in the house who were talking about having bashed someone. He did not open his eyes; he just heard the conversations. [141] He recognised Mr Sione's voice. Although he did not hear what he said, "it was more the fact that he was laughing with everyone else as they were just talking about it". [142]
7. After refreshing his memory from his statement and then leave under s 38 of the Evidence Act being granted, his evidence was that he had the following conversation with Mr Sione: [143] DS: What happened. Sione: We all bashed this guy. DS: Who did you bash? Sione: Some guy called Jason. DS: What was the cause? Sione: Kayla wanted to bash this guy because he stole something.
8. In cross-examination DS conceded that "everything was vague" because of the alcohol he had consumed on the day and the preceding days and also the fact that the conversation occurred just after he had been woken up and he only remained awake for a short time. As a result, he could not exclude the possibility that the things said about bashing somebody were said by someone else. [144]
9. DH was DS' 15-year-old girlfriend who was also staying at the Mikado Way home. She recalled waking up to some people talking, it was MM and Ms Dawson. They were talking about some kid having been bashed and it was over some AirPods. She recalled Ms Dawson "just said that apparently those people that were there had bashed this kid because he was trying to steal AirPods or the earphones or something". [145]
10. DH thought that the other people who were present were DS, Mr Sione, BL and two kids who she thought were BE and JB. There was also talk about them not knowing what they were going to do or how they were going to go about it. A video had been taken of it as well. There was mention of taking shoes and maybe a jacket or a jumper. At some stage she heard Mr Sione saying, "he didn't want to go back to gaol". [146]
11. In cross-examination DH agreed that she had stayed up the previous night, drinking and smoking marijuana and did not go to bed until about 11am on 4 August 2021. She was still feeling the effects of alcohol when she woke up that night. It was suggested to her that Mr Sione did not say something about gaol. She first said she was sure that he did, then "maybe" somebody else said it, and then she was "not sure". [147] In re-examination, after a grant of leave under s 38 of the Evidence Act, DH agreed she said in her statement made on 14 October 2021, and it was the truth, that Mr Sione and BL were standing in the kitchen, not sitting with everyone in the lounge, and she heard Mr Sione say, "Oh fuck, I don't want to go back to gaol". [148]
12. BL and Mr Sione went back to the vicinity of the Perigee Close home at about 7.30pm. It was secured with police crime scene tape. He asked an officer what was going on and she replied, "I'm not too sure. It's a crime scene and you may not enter". He replied, "Looks like it could be a murder or something with all this tape." He asked, "Can I see my friend Kayla?" He was told he could not and that she was not there anymore.
13. Mr Sione returned at about 11.00pm and encountered the same officer. She asked him what he was doing and how he got into the crime scene. He said, "I snuck past because I'm in all black clothing with a hoodie on". He was told again that it was a crime scene and that he should go home. [149]
14. These return visits to the vicinity of Perigee Close were relied upon by the Crown to demonstrate Mr Sione had a continuing interest in what had occurred and the subsequent police investigation in relation to the serious harm that had been caused to the deceased. [150] The suggestion appears to be this is unlikely behaviour for someone who had played a minor role in the events and bore no responsibility for the outcome.
15. Mr Sione and BL were stopped by police nearby at about 11.30pm and were arrested. [151] BL agreed in cross-examination that he was "pretty unrepentant" at that time. He told police shortly after his arrest that "the cunt deserved it". [152] Mr Sione gave the police access to BL's phone which led to the discovery of recordings of the assault. BL agreed that he was "very angry" about that. Mr Sione was also blamed for taking police to Mikado Way the next day and BL agreed there was "a lot of animosity" towards him. [153]
16. Sometime prior to that, while Mr Sione and BL were walking around the streets in the vicinity of the crime scene they encountered Mr Robert Leuthwaite. He was at a house on Kildare Road and through the back window he could see the flashing lights of the police and ambulance vehicles in Perigee Close at a house where a person he knew, Harley Bartolo, lived. He was later out the front of his house having a cigarette when he noticed two males. He described them in a way that matched Mr Sione and BL. [154] (There was no dispute that it was them. [155] ) One of them asked Mr Leuthwaite for a cigarette and there followed a short conversation. He asked them whether they were from "around the corner" because he was pretty sure he had seen the young male at Mr Bartolo's home two days before. He also asked, "What's going on around there?" [156]
17. He was reminded that he said in his statement of 23 December 2021 that he asked, "What happened around the corner?" and "the Islander guy" (Mr Sione) replied: "I just bashed this boy. I had to take off before the cops came. I left all the young ones around there to finish him off."
18. He did not remember having told the police that. He said he "blanked a lot of everything out because of what happened to myself … It's very hard for me to remember". Those were things that had happened after he made his statement to police. He agreed that when he spoke to the police he was doing his best to tell them the truth, although he said at the time he was "not in the right, right sort of mind" and he "was on drugs very bad". [157]
19. The Crown Prosecutor was granted leave under s 38 of the Evidence Act. Mr Leuthwaite then agreed specifically that what had been read out from his statement (and quoted above) was true. [158]
20. Mr Leuthwaite then gave evidence of having been shown two videos "on the young fellow's phone". Without prompting, he recalled a detail that clearly was the assault upon the deceased but said he could only remember "a little bit of it": "his head was going through a wall … his head got kicked into the wall". [159]
21. Mr Leuthwaite agreed he said in his statement that the younger male put the phone back in his pocket and they walked away. He subsequently saw them "walking back and forth another three or four times, looking to see what was happening at Perigee Close". After he returned inside, Mr Leuthwaite's partner Kristina Susnjara rang the police. Some police cars arrived and the two males were arrested. [160]
22. In cross-examination, Mr Leuthwaite agreed that he did not remember Mr Sione saying the words attributed to him in his statement but denied that this was because it was not the truth. [161] He agreed there had been a previous interaction with the Islander male who was angry because Mr Leuthwaite had slapped a young boy from Ms Dawson's house. [162]
23. Most of the cross-examination was concerned with a subsequent occasion when Mr Leuthwaite and his partner, Ms Susnjara, visited Ms Dawson and Mr Bartolo. It was suggested to him that Ms Dawson was being advised to tell the police a false version of events surrounding the assault of the deceased. Mr Leuthwaite did not think so but could not remember specific matters that were put to him by counsel reading from the transcript of the covertly recorded conversation. After a series of questions and answers to this effect it was suggested that he and Ms Susnjara were telling Ms Dawson to lie to police which he explicitly denied. [163]
24. Part of the conversation read to Mr Leuthwaite from the transcript included him saying, "Where'd he come from, that Islander fellow?" and "Was he here?" He did not remember saying that but agreed with a proposition that if that person had told him things about having bashed the young person and leaving the young fellows to finish him off, he would not have been asking, "Was he here?" (In the absence of Mr Leuthwaite being able to remember the conversation there appear to be other possible explanations for that being said. Perhaps he was feigning ignorance in order to encourage Ms Dawson to confirm the fact or perhaps he was seeking to establish whether she was even aware of Mr Sione's presence.)
25. Mr Leuthwaite denied having any animosity "towards this Islander fellow". [164]
26. In the absence of some independent support for it, I am not persuaded that Mr Leuthwaite's evidence that Mr Sione said he "left all the young ones … to finish him off" is sufficiently reliable to take into account.

Police interaction with Mr Sione at and after his arrest

1. Police arrested Mr Sione and BL on Rosenthal Street, which is near to Perigee Close, just before midnight. They were detained and searched. Items of clothing were removed. They were spoken to by officers throughout this process and while waiting for the arrival of vehicles to take them to a police station. The incident was recorded on body-worn video. (Evidence of events at this location and subsequently at Blacktown police station were admitted only in the Crown case against Mr Sione.)
2. Mr Sione was light-hearted in his manner, likely as a result of being intoxicated. When told police were investigating a very serious assault he asked, "Oh, really?" and "Oh, that's no good". He denied having been at Ms Dawson's house that day. He said he had been at home. He had received a call informing him or had been told in person by neighbours (he changed or corrected what he had said earlier), that "something happened at Kayla's". He said she had epilepsy and a disability. He went to her house regularly: "I always check up on my, on my, my mate to see if she's OK". He said he had last been at her house "like, three nights ago". Mr Sione generally protested his innocence and questioned what cause there was for the arrest. [165]
3. BL was being attended by other officers a little distance away from Mr Sione. He also protested his innocence and there was this exchange with each calling out to the other: [166] BL: Richie, this is fucked. I've done nothing wrong. Sione: Mate, they're arresting you for no reason. BL: They're arresting me for GBH. What the fuck? Sione: … what, I'm … yeah. BL: Yeah, straight. Sione: We weren't even there, lad. … Sione: Nephew. BL: … wrong. Sione: Nephew. BL: What? Sione: They arrested the wrong people. BL: Yeah. Straight the … Sione: We weren't even there. BL: … straight the fuck up.
4. Mr Sione was taken to Blacktown police station. A forensic procedure (a DNA swab and photographs) was carried out with his consent at around 2.00am and was recorded. Mr Sione sat at a table, yawning, often hunched over, sometimes with his head on the table. He protested his innocence a number of times including, "you got the wrong people" and "I wasn't there, I don't know what youse are talking about". At one point he said, "So if you're saying he's about to die, who's about to die, like, I don't know, I'm lost, who, who's about to die?" He also said, "I'm not gunna answer any questions while I'm under the influence of alcohol". While photographs were being taken of him, he said: [167] If youse, you know the phone that I had, if youse look into that phone, the, bro, you got all the evidence there, like, I wasn't there, I don't know what youse are talking about.
5. The Crown relied upon various statements made by Mr Sione at the scene of his arrest and at the police station as evidence of him being conscious of his guilt. In summary, these were statements to the effect that he was not at the Perigee Close home and he had no knowledge of any assault having occurred.
6. Mr Ramrakha made submissions about this during his closing address which included that before this can be taken into account it must be established that the lies emanated from a consciousness by Mr Sione of his guilt of a specific offence. If it was equivocal that he was conscious of his guilt of either murder or manslaughter, then it could not be taken into account at all. I remain of the view that I expressed at the time that this submission was not supported by current authority: see, for example, The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35. [168]
7. At a later point in his address, Mr Ramrakha conceded that "clearly there were lies said in the body-worn video about him not being there, 'not knowing shit', [last having been at Ms Dawson's house] three nights ago, 'what assault?'". [169] He submitted that Mr Sione's intoxication at the time should be taken into account and also that he may have been concerned not to reveal his involvement in a separate assault upon the deceased that was not related to the subsequent more brutal assault by the others. It was also submitted that another reason for lying might have been that Mr Sione did not want to return to gaol (even though evidence of him having said this was disputed - see above at [172]).
8. These alternative explanations cannot be accepted. Mr Sione lied to police because he did not want to reveal that he had been present and involved in detaining and assaulting the deceased because he knew that his assault was the commencement of the infliction of really serious harm. He realised at the scene of his arrest that revelation of this would inculpate him in relation to that. By the time he was at the police station he realised it could potentially inculpate him in respect of a homicide. The evidence has probative value even though his various statements do not support an inference of consciousness of guilt of an offence with any greater specificity than that.

Cause of death

1. Dr Elsie Burger conducted an autopsy and determined that the cause of death was "complications of multiple blunt force injuries to the body". [170] She gave evidence about the possible mechanisms by which death resulted but there was no dispute that the cause was as she had determined.

The deceased's DNA on Mr Sione's shoes

1. Detective Leonard confirmed in cross-examination that Mr Sione was wearing the deceased's jacket when he was arrested on the night of 4 August 2021. An officer at the scene had advised that Mr Sione had no injuries to his hands but had blood on his shoes. [171] A subsequent testing of the shoes returned a negative result for blood. [172]
2. Photographs taken during a forensic procedure show him wearing green pants and a green top and it was understood he had been wearing the same pants all day. [173]
3. The crime scene officer took samples from the deceased's jacket which were submitted for DNA testing. Five of the samples yielded DNA material with a profile consistent with the deceased. [174] That is hardly surprising.
4. DNA consistent with the deceased's profile was also found on Mr Sione's shoes. The Crown Prosecutor submitted that this evidence corroborated BL and BE who respectively said they saw Mr Sione stomping on and kicking the deceased. However, it was acknowledged that the DNA may have been on the shoes as a result of secondary transference and if that was the case then the evidence is not corroborative at all. [175]
5. Given Mr Sione was wearing the deceased's jacket, and that both it and the shoes were handled by himself as well as by the same police officer when they were taken from Mr Sione without the officer having changed his gloves, transference is a distinct possibility. The Crown Prosecutor submitted it was a matter of how much weight could be given to this evidence, but I do not think any can be if there is an innocent alternative explanation available.

How long was Mr Sione in the bedroom?

1. Exhibit 4 contains two clips of recordings made from a security camera from a house across the road from the Perigee Close home. The timestamp on those recordings is incorrect. However, it may be compared with recordings made of identical events (such as the time persons entered the front gate) as recorded with a correct timestamp by a security camera at the home next door to the Perigee Close home in Exhibit J.
2. Ms Pale is seen in Exhibit 4 (clip 2) entering the front gate at "02.30.45". Shortly after that, Mr Sione is seen to walk into the front yard and linger there. He is then seen to go to the front door of the home and apparently enter at "02.31.32". The time between these events is 47 seconds. In Exhibit J, Ms Pale's entry through the front gate is at 4.09.52. Therefore Mr Sione entered the front door at 4.10.39.
3. If Mr Sione proceeded to the bedroom after perhaps some brief interaction with people in the lounge room (such as Mr Oaariki) it may be estimated that he entered the bedroom at 4.11-4.12pm.
4. Mr Pakau walked out the front gate at about 4.17pm (per Exhibit J). It may be estimated that his intervention that brought to an end Mr Sione's assault upon the deceased was at about 4.15-4.16pm. Mr Sione left the bedroom soon afterwards.
5. Mr Sione must have been in the bedroom with the deceased for about 3-5 minutes.

Intoxication and witness reliability

1. The consumption of alcohol and drugs by various people was raised throughout the evidence. It is relevant to the reliability of witness testimony. Mr Ramrakha submitted that the intoxication of Mr Sione was relevant to whether the Crown had proved that he had the specific intent required for each count in the indictment. In relation to witnesses there was the following evidence.

BL

1. BL agreed with a proposition that on a daily basis there was a lot of drinking going on at the homes in Perigee Close and Mikado Way. [176] Cannabis was used as well but just by BE and himself. [177] He said on the day of the incident he had consumed marijuana and alcohol and described himself as a "bit intoxicated but I wasn't wasted". [178]

BE

1. BE said that he and others (BL, he thought Mr Sione and Mr Pakau, also MM) had been drinking alcohol on 4 August 2021. They shared a couple of bottles of Jack Daniels. He also smoked marijuana; six cones maybe. He also saw Stacey Pale, Ms Dawson and perhaps Mr Bartolo smoking marijuana. [179]
2. In cross-examination he said he was "six or seven" on a scale of one to ten in terms of how drunk he was. He agreed it affected his perception of events and memory of what was happening. The time that had elapsed also had deteriorated his memory. His statement was made 22 months after the events, on 2 June 2023. He said, "The whole case I've said I'm not a hundred percent sure about everything, but I am very - I strongly believe most of it". [180]

Thomas Pakau

1. Mr Pakau was asked about events at the Mikado Way home on the evening after the assault. He could not say whether a video of the assault was being shown on someone's phone because, "I was drunk". [181] There is no specific evidence of his state at the time of the events earlier at the Perigee Close home.

Rebyll Oaariki

1. Mr Oaariki said that on 4 August 2021 he had been drinking and smoking marijuana at the Mikado Way home. [182] He agreed in cross-examination that the alcohol ran out and Mr Sione left, saying he was going to get some more. Mr Oaariki went to sleep and was woken by Mr Pakau who told him there was alcohol at another house. He agreed that when he was at the Perigee Close home he was "quite drunk. [183]

DS

1. DS said, "most of the time" the average day at the Mikado Way home involved alcohol and it was provided by Mr Sione. [184] He agreed in cross-examination that it involved "drinking until you pass out and then you wake up the next day". Those who were at the Mikado Way home on 4 August 2021 were drinking. DS reached a point in the afternoon where he had had enough and just wanted to go to sleep. He was woken up later in the night to the noise of others in the house. He agreed that they all appeared to be drunk. [185]

DH

1. DH agreed that on the night before the assault there was a group at the Mikado Way home, including Mr Sione, who were "having fun, smoking pot and drinking". She had "enough to make me pass out". She said in her statement that she and DS went to bed at 11am the next day, 4 August 2021. They next saw Mr Sione that night. She was still feeling the effects of alcohol and marijuana when she woke. She was asked about whether this might have affected her memory and she gave a variety of responses, ultimately settling upon "it wasn't affected". [186]

Intoxication and proof of specific intent

1. The offences in both counts of the indictment are listed in the Table in s 428B of the Crimes Act as offences of specific intent. Intoxication is a matter that may be taken into account in determining whether Mr Sione had the intent to cause the specific result necessary: s 428C.
2. BL said Mr Sione was drinking on 4 August 2021 but did not remember him being drunk. He then agreed that he was "drunk" but not "very drunk". He was walking around fine; he was not unsteady on his feet; but he was very vocal, loud and carrying on. In re-examination he explained that Mr Sione was "rowdy" whereas he was usually quiet. [187]
3. Mr Pakau recalled that people at the Mikado Way home were drinking the night before the bashing and continued when they woke in the morning. He agreed they drank "a couple of bags of goon". He was asked if Mr Sione was drunk and he said he was, he was 5 on a scale of 1 to 10, "not that drunk". He agreed that all the alcohol was consumed and Mr Sione left the house at about 2 o'clock to get more alcohol. [188]
4. Mr Oaariki described Mr Sione's mood when he walked towards the bedroom with the group who were with the deceased as "angry". He did not say what made him appear that way except that when he asked Mr Sione why he had not returned to the Mikado Way home he was told "Fuck off". [189] In cross-examination he said it was the "tone in his voice" that made him seem angry. [190] He agreed that Mr Sione had been drinking; he was "drunk" and he seemed to be at 8 on a scale of 1 to 10. He was being very loud, he swore at Mr Oaariki, but he was not slurring his words. He described Mr Sione as a happy person when he was not drunk. [191]
5. Detective Leonard gave evidence that when he saw Mr Sione at about 11pm on the night of 4 August 2021 he "smelt strongly of alcohol and his speech was slightly slurred". [192] During a forensic procedure at about 2.00am Mr Sione told officers that he was then "under the influence of alcohol, obviously". [193] How much alcohol and/or drugs had been ingested by Mr Sione since 4.30pm is unknown.
6. There is no evidence of Mr Sione at any time proximate to the assault upon the deceased exhibiting typical signs of being substantially intoxicated like slurring his words or being unsteady on his feet.
7. Mr Ramrakha made a rather muted submission that intoxication was a matter to be considered but he held back from submitting that Mr Sione was so intoxicated that there was a reasonable doubt about whether he had the relevant intent. [194]
8. The overall effect of the evidence is that Mr Sione was affected by alcohol to some degree, however I am not satisfied it was at a level of significance to his ability to form the specific intent the Crown is required to prove beyond reasonable doubt. He appears to have been louder and more boisterous in his effect but there does not appear to have been any impairment to his awareness of his surroundings and ability to control his words and actions.

Events leading to the arrest of Ms Dawson

1. The following events subsequent to the assault upon the deceased and prior to Ms Dawson's arrest on 8 August 2021 are relevant for two purposes. The Crown relies upon admissions she made on 8 August 2021 as supporting proof of her guilt. Prior to that, the lies she told in the immediate aftermath and their evolution over the following days are relevant to whether certain mental capacities were substantially impaired by a cognitive impairment at the time of the detention and assault of the deceased.
2. The evidence of these events was only admitted in the Crown case against Ms Dawson.

Conversations with first police on scene

1. Mr Bartolo gave evidence about the arrival of the police and ambulance. He was scared for his own safety and so he lied about "two other people or more coming over and doing something bad to [the deceased]". This was his idea because he was scared that he "was going to take the rap for it all". He told Ms Dawson what he was going to tell police before he spoke with the police. [195]
2. One of the first police officers on the scene spoke with Ms Dawson, Ms Pale and Mr Bartolo. [196] Ms Dawson, with supporting contributions by the other two, gave an account of the deceased having run into the house and into the 1st bedroom, followed by "two black guys" who were "30 something" who bashed him. Ms Dawson said she stayed in the lounge room because "we don't want to get involved". She later added, "I went in a little bit … to see what was happenin'. I couldn't see anybody. So, I went back out 'cause I was scared". The two males then walked away. She did not know what they were wearing.
3. The conversation with Ms Dawson was continued a short time later. [197] She maintained and embellished the account about two African males being responsible for the assault. She said the deceased was a friend she had known for 15 years. This was to be the first time she had seen him in a month. He was not supposed to visit because of COVID but "he wanted to see us".

Conversation at the Perigee Close home on 6 August 2021 at 1.54pm

1. A listening device was covertly installed in the Perigee Close home. Recordings and transcripts of two conversations on 6 August 2021 were tendered. The first, commencing at 1.54pm involved Ms Dawson, Mr Bartolo and an unidentified female visitor. Ms Dawson made the following admissions: [198] Police were "trying to figure out who bashed my mate … but little do they know he stole from me so I set him up and he's in hospital". Mr Bartolo said he had been "given an update, he's passed away". Ms Dawson also said: "I've known that cunt for fucking probably 7 years … He was a dog but, he was a dog … He didn't deserve to die." In the context of Mr Bartolo talking about others being "pissed off" because "they've all found out now that he's 16, Ms Dawson said: "Yeah but I didn't do it … I didn't do it."

Conversation at the Perigee Close home on 6 August 2021 at 2.46pm

1. Another conversation commenced at 2.46pm. It involved Ms Dawson, Mr Bartolo and visitors to the home, Mr Leuthwaite and Ms Susnjara. [199] This was the conversation referred to in the cross-examination of Mr Leuthwaite. In the course of this, Ms Dawson said: It started over the deceased having stolen her AirPods a couple of weeks ago. The deceased had come by train. She, and "my other mate" set it up. It was one of her mates, [BL] who told her to do it. BL was in the room with "them". BE was videoing it. When Ms Susnjara asked who was the "33 year old Island guy", Ms Dawson said, "that would've been Ritchie". She agreed that it was "over shit" and said that "after a while" she tried to stop them. (The Crown Prosecutor submitted that this was a lie in that there is no evidence of her having tried to stop them. It was said to demonstrate a capacity to control herself. [200] ) There were five people who had bashed the deceased. Ms Dawson did not tell the "young ones" to do it. "They did it cause he did it … They followed him, they did it cause he did it." The deceased was not kidnapped. "He caught the train up here … to meet up with me."
2. Ms Susnjara and Mr Leuthwaite were berating Ms Dawson for allowing the assault to happen. They told her she would get the blame for being the owner of the house. She should go to the police and tell them that she had been threatened by the "Islander fella" (Mr Sione) who she should not identify. They also told her to say she had not previously disclosed to police what happened because she was threatened with a knife. She should only identify the young persons who the police had already arrested. She was also told not to mention having this conversation with Ms Susnjara and Mr Leuthwaite. [201]

Interview at Blacktown police station at 5.30pm on 6 August 2021

1. Ms Dawson went to Blacktown police station at about 5.30pm. She was interviewed for almost two hours. She was asked at the beginning what she had come to talk about and she said: [202] All right. So, I, so the people that, um, like, killed him, they, like, threatened me with a knife so I couldn't say anything to the, um, they told me not to say anything to police or anything. And then, like, now I'm here. And, um, they also said it, the coppers also said it was a kidnapping. That's not the case. He came up on the train at his own will, and so it wasn't a kidnapping. They got that completely wrong.
2. She also said the following: 28: I contacted him to come up to Doonside to hang out with me and my partner. 43: He just came to my house to hang out. 44-5: Me and my mate [she gave BL's full name] asked him to come to our house. 77: The deceased was a good friend. 92: He was 16. 116-7: She called him and asked him to come, using her mobile phone. 180-1: She called the deceased and asked him if he was coming to her house that day and he said, "yes". She met him at the station and walked to her house. She was with BL, BE [she only provided his first name] and another of her mates. 206-210: There were about seven people at her house, including BE. 254-5: When they arrived at the Perigee Close home, "they just went to the room and bashed him". 256-273: "They" included one of her mates, Richard. He had dark skin and was 30 years' old. He was in a relationship with Stacey. 310-1: It was Richard who took the deceased into the room. He then just got bashed. 390-5: She went in and out of the room. She was trying to stop it. 415-422: Richard walked the deceased into the room. Then he started hurting him. Richard hit the deceased, using a fist. He was hitting him pretty hard. 428-434: Initially in the room was just me and them two, Richie and the deceased. And then the rest of them walked in there and they all just bashed him; they were kicking him and stuff. 450: Then the deceased stopped breathing and they all left. She called an ambulance. 454-5: When asked why they did it she said, "I dunno. They didn't like him." She could not say why, "They just didn't". 456: No-one communicated with her prior to this happening what was going to happen. 461-2: She thought it was BE and BL who were filming it, with phones, or their friends' phones. 465-478: She thought they recorded it on her phone as well. She thought it was BL who had her phone. She gave it to him. She couldn't stop him because he would've hurt her. 482-4: She told the whole lot of them to stop but they would not listen. She did this three times. 494-7: When it was just Richie bashing the deceased before the others came in, she saw scratches on the deceased's arm and bleeding a bit from the nose. 498: When the others came in and started bashing the deceased, Richie was still there.
3. There was a suspension of the interview for a short time. Ms Dawson had a meal. When it resumed she said the following: 517-8: There was no-one recording except for BL. She did not record it at any time.
4. The interviewing officer then informed Ms Dawson that BL had been arrested in the early hours of 5 August 2021. She responded, "Oh" and "Really?" (The transcript does not punctuate this with a question mark but a tone of surprise is evident in the recording.) She was also informed that BL had been in possession of a phone on which there was a video. She was then shown a number of still images taken from that and other sources. These were clearly of various people involved in assaulting the deceased. [203]
5. Ms Dawson was asked, in effect, what had happened to the deceased's clothes given he was only wearing boxer shorts in the recordings. She replied, "The people that bashed him. They took his …". When asked by who, she said she thought it was Richie, MM and AD. [204]
6. Ms Dawson maintained that at no point did she assault the deceased. She did not encourage anyone to do so and at no point did she film the incident. [205]
7. Ms Dawson was told that some videos had been found on her phone. She explained that "they recorded it with my phone" and "I was in the room trying to get my phone back". She now said that two people were recording, BL and BE. She was told that the officer could hear her in the video in a way that indicated she was the person holding the phone. She now claimed a memory loss, but conceded it was possible she had recorded for a little bit. [206]
8. Her account at this point changed again. She thought it was either MM or BL who asked her to record. They were bashing the deceased and they wanted her to record it, although she did not want to. They were saying, "Do it or else I'm gunna bash you too". She recorded because she did not want to get hurt. [207] She admitted that she had previously lied to the interviewing officer. [208]
9. Ms Dawson then said she was also told to send a recording "to a mate". After first saying she did not send it because she did not have credit or wi-fi, she said it was sent to Jonathan on Snapchat. [209]
10. She admitted giving a false account to police on the night of two black Africans being involved. She lied because she did not want to get in trouble with the guys who bashed the deceased; "they would've bashed me too". [210]
11. Despite it having been at the urging of Ms Susnjara and Mr Leuthwaite earlier that afternoon, Ms Dawson denied that anyone had told her to come and speak with police. She said she just felt like she wanted to come in to tell the truth. Moreover, everything she had said in this interview was the truth. [211]
12. Towards the end of the interview Ms Dawson denied that there were any "issues" between herself and the deceased, even of the most minor nature. The last time she had seen him was a month and a half ago when he came to her house but "we were all sweet, nothing happened with no-one". [212]
13. Ms Dawson was then taken back to when the deceased entered the home. The interviewing officer was obviously proposing to ask what triggered the action of taking him straight to the bedroom and she interrupted by volunteering, "They didn't like the way … he looked at them". She repeated this, "They didn't like him 'cause he looked at them weird". The following exchange ensued: Q1051. How do you know that? A. 'Cause I just remembered. Q1052. Oh, right. Ok. And how do you know that? A. Hmm. Q1053. How do you know that, how do you know that they didn't like the way he looked at them? A. 'Cause they told me. They're like … Q1054. Ok. A. We don't like him. And I'm, like, Well he can't go home. Q1055. Right. A. 'Cause he just got here. Q1056. And then what happened? A. Then they bashed him, 'cause they wanted him to leave. Q1057. Well, I mean, why didn't he just leave? A. Didn't want to.
14. The officer took Ms Dawson back to her claim that there was no kidnapping. He explained that the offence can be committed, "If somebody's held against their will". She said, "Well, I didn't know that". [213]
15. She was also taken back to her claim that there was no motive for the assault aside from the perpetrators not liking the way he looked at them. She maintained that there was no other reason for what happened She swore on her daughter's life that was so. She downplayed any significance being placed upon references that were made to street and postcode gangs during the assault. [214]
16. After the brief explanation Ms Dawson gave at the beginning about what she had come to talk about, the interview continued for almost two hours. On a number of occasions she indicated that she did not want to answer further questions but she was persuaded ("cajoled" as counsel put it [215] ) to continue.
17. The Crown case was that there were 31 lies told by Ms Dawson in this interview. It was submitted that it was a further demonstration of her ability to control herself in the period very shortly after the events in question. [216] This is relevant to the substantial impairment defence.
18. The defence case was that the lies were variations of four themes: concealing that the event arose from the alleged theft of her AirPods; that there was discussion of a bashing before the deceased arrived at her home; that she participated in the filming; and claiming that she had been threatened not to talk to police in order to explain why she was providing this information now. It was also submitted that Ms Dawson demonstrated a lack of consequential thinking; she thought she could just tell the police what she said in her initial explanation of why she had attended the police station and then go home. [217]

Conversation at the Perigee Close home on 8 August 2021 at 2.22pm

1. Police saw Mr Bartolo at the Perigee Close home on 8 August 2021 at 1.53pm. They took him to Blacktown police station where there was discussion about certain concerns police held about his statement. A further statement was not obtained because they were not satisfied he was being completely frank. He was given a lift back home. He then had a covertly recorded conversation with Ms Dawson, commencing at 2.22pm. [218]
2. Mr Bartolo told Ms Dawson about further information the police wanted from him and said, "they told me to come back here and have a word with you about who was in this house when it first started". She told Mr Bartolo it was "Ritchie". That appeared to satisfy him he had the information the police were asking for. Ms Dawson, however, was more focussed upon a concern about her safety. She had been overwhelmed with people calling and sending messages about their perception she participated in the murder. Mr Bartolo was going to go back to the police station so he suggested she come with him.
3. Mr Bartolo received a call and put his phone on speaker. The caller (who appears to have been Ms Susnjara) addressed herself to Ms Dawson. She asked whether she felt good that she set it up and Ms Dawson replied, "I didn't set it up for him to get killed". [219]
4. Ms Dawson agreed that if she hadn't set it up the boy would not be dead. She agreed she felt bad she had taken the boy's life. [220]
5. After more conversation along these lines, the caller asked, "Did you or did you not set it up"? Ms Dawson replied, "I did". She told the caller that she did not touch him, she just set him up. She said she did not want to take herself to the police station but she had to. [221]
6. Ms Dawson asked for advice on what she should say and the caller advised her to "just say I'm the reason (unable to decipher) life got taken, I set him up". Ms Dawson agreed. [222]

Conversation with police officers in Perigee Close on 8 August 2021

1. Ms Dawson called police to come to Perigee Close. When they arrived she told them she was "up the road because I was threatened about the murder and I was called a murderer. I organised the kid to come to my house and I …". At that point she was interrupted and given a caution about her right to silence. The ensuing short conversation was recorded on body-worn video. [223] She made the following admissions: Just that I set the murder up. I set it up. I called him and told him to come get bashed.
2. She confirmed she had not previously told police this. She was asked what she intended, what was going to happen to him. She replied that he was going to get bashed but she did not know he was going to get murdered.
3. She was asked whether she knew who he was going to get bashed by and she said, "No. They were(?) just, a couple of people. They were here already."
4. The reason she called him to get bashed was, "Because he stole from me".

Conversations on the way to and at Blacktown police station

1. An officer spoke with Ms Dawson when they were travelling in a car to the police station. She was asked what had happened today and she replied, "I don't feel safe in my street anymore". That was, "'cause I set up the murder". She was asked if she was referring to the deceased and she replied, "Yeah, but I thought they were just going to bash him, not kill him". She thought that after they had bashed him they were going to, "Let him go". [224]
2. At the police station Ms Dawson was told she was under arrest for the murder of the deceased and was again cautioned. Detective Leonard asked, "What do you want to tell me?" and she replied: I set him up. I told him to come to my place.
3. She confirmed she was speaking about the deceased and was asked, "What do you think you were setting him up for?" She replied, To be bashed.
4. After speaking with the custody manager and a support person Ms Dawson exercised her right to silence and declined to answer further questions.

Credibility of witnesses

1. There were many instances of lay witnesses having an inability to accurately recall matters of detail such as when events occurred, the sequence in which they occurred, and the people who were present at the time. Some witnesses also had difficulty giving a reliable account of things that were said and who said them. Factors bearing upon these issues include the time that had elapsed since 4 August 2021, the consumption of alcohol and/or drugs on that day and the day prior (see above at [207]-[214]), and the fact that some were leading a rather aimless lifestyle with no structure or routine. BE and BL also had the difficulty of not having made statements until 2 June 2023 and 5 January 2024 respectively. Youth, immaturity and an apparent difficulty in intelligently considering questions and articulating answers also featured prominently in adversely affecting the oral evidence.
2. There were many criticisms made in the closing address for Mr Sione of inconsistencies and contradictions in witnesses' evidence both internally and when compared to other witnesses or irrefutable objective evidence. Many of the criticisms were valid, although there was a variation in the significance of the subject matter. There were also instances of criticising witnesses for unreliability but then selectively relying upon matters that were thought to support the defence case. One example will suffice: Mr Bartolo was criticised for having lied to police, having encouraged Ms Dawson to do the same, and being inconsistent in his evidence. Despite this, Mr Ramrakha relied upon his evidence of what he saw in the bedroom as being consistent with the defence case that there was a gap between the assault by Mr Sione and the subsequent assault by the young persons. [225]
3. BL was criticised by Mr Ramrakha for being "a rather arrogant young man"; "on occasion he had a smirk on his face and was flippant in his answers". [226] There is some force in these criticisms. For example, he was smiling or smirking at one stage of Mr Ramrakha's cross-examination and when asked why he refused to explain. [227] BL was disrespectful at times during cross-examination but that was most often the case when he seemed antagonised by his perception of the questioning being repetitive or being critical of him. [228]
4. It is necessary to consider this in context. BL conducted himself poorly at times during the cross-examination by Mr Ramrakha but, subject to an exception, his behaviour was appropriate during the Crown Prosecutor's evidence-in-chief and re-examination and during the cross-examination by Mr Johnson. The exception was at the very beginning when BL was called to commence his evidence shortly before the luncheon adjournment on the first day of the trial. His performance was less than satisfactory. I was made aware during the adjournment that although BL was in the custody of Juvenile Justice, he had been placed in cells in the King Street court complex within hearing of the accused.
5. The configuration of the St James Road courtroom was less than ideal in that it is relatively small and from where BL was facing the Crown Prosecutor and answering questions, he had the accused immediately in his line of sight. I raised with counsel in chambers (and subsequently put on the record: T29) that the behaviour of the accused in the dock while BL was giving evidence was a matter of concern.
6. These matters caused me to adjourn the trial until the following day with a relocation to a large courtroom in the Darlinghurst complex which also has more appropriate custodial facilities. [229] The Crown Prosecutor recommenced BL's evidence with BL explaining that his poor performance the previous day was because Mr Sione had told him in the cells that he should not say anything, in exchange for which he would be protected in gaol. [230] BL is presently serving his sentence in a juvenile detention facility but will be transferred to an adult gaol in just over three years' time.
7. The other witnesses who were the subject of criticism by Mr Ramrakha were BE and Messrs Bartolo, Pakau, Oaariki and Leuthwaite. [231] I have considered those criticisms and have already mentioned some of them. Without descending into further detail I can summarise the approach I intend to take briefly. The quality of the evidence of each of these witnesses, and BL, is not such that I can rely upon them in relation to critical issues that are in dispute without there being support either from another witness or from acceptable objective evidence.

Findings of fact

1. Taking the approach just mentioned, I am satisfied that the evidence proves the following.
2. Kayla Dawson arrived home at Perigee Close on 4 August 2021 at 12.31pm. She spoke by telephone with the deceased for about 2½ minutes from 12.36pm. Both Ms Dawson and BL attempted to call the deceased at 12.46pm with only BL being successful. BL sent a text to the deceased at 12.56pm: "2.00 Jason we go kb [sic - kickback] for bit and then go roll cunts". At some stage between 12:31pm and 12:56 pm, Ms Dawson made her belief that the deceased had stolen her AirPods known to BL (at least). It was decided that the deceased would be lured to Doonside and bashed as punishment, revenge or retribution for the theft. By the time BE sent someone a text at 1.50pm ("me n 2 of the boys are bashing someone to day Imao") four people were engaged in this criminal enterprise: Ms Dawson, BL, BE and TB.
3. The deceased caught a train at Sydenham railway station at about 2.32pm. At about the same time, Mr Sione, MM and AD arrived at the Perigee Close home. Ms Dawson and BL were making frequent attempts to contact the deceased, not always successfully. The progress of his journey was being monitored. There was a level of impatience according to BL (see above at [80]) which is consistent with the frequency of actual and attempted phone contacts with the deceased from 12.45pm to 3.44pm. [232]
4. Most of the people present were intoxicated by alcohol and some by drugs as well. Photographs were being taken, one of which showed Mr Sione with all the young persons out the front of the house at 2:57pm. Both BL and BE said (and it was not specifically disputed) that around this time there was talk about the proposal to bash the deceased. [233] The house was small. In all the circumstances it seems inconceivable that anyone in the house could not have known of the plan. That was the broad effect of Mr Bartolo's evidence as well.
5. The plan was for the deceased to be brought to the Perigee Close home where he would be bashed. That was clear by at least 3.37pm when BE sent texts from the house saying, "he's nearly at doonside station … we gotta take him from doonside station [to] here … to the house".
6. At 3.38pm MM invited Thomas Pakau to come to the Perigee Close home. He arrived with Rebyll Oaariki at 3.50pm. Ms Dawson, BL and BE had left to walk to the railway station at 3.44pm.
7. Having been met on arrival at the railway station at 3.56pm, the deceased walked with Ms Dawson, BL, BE and Ms Pale to the Perigee Close home. At 3.58pm BE alerted MM by text messages that they were "with him" and were "on our way back". They arrived at 4.08pm. The deceased and others mingled on or near the front verandah for a short while before entering the house.
8. The deceased was taken to a bedroom where he was assaulted, first by Mr Sione and then by the five young persons with Ms Dawson watching, recording and at one point transmitting a recording.
9. The assault by Mr Sione was very violent. BL and BE were consistent in describing it as first involving Mr Sione angrily interrogating the deceased about the theft of Ms Dawson's AirPods and then proceeding to punch and kick him.
10. There must have been significant force being used by Mr Sione. Each of Messrs Pakau, Oaariki and Bartolo said that from the lounge room they heard multiple banging noises which must have been coming from the walls of the bedroom. Mr Pakau entered and saw the deceased cowering in a corner with Mr Sione swinging a punch at him. That is consistent with what BL and BE described.
11. Mr Pakau intervened and brought the assault by Mr Sione to an end. While varying as to detail, BL, BE and Mr Pakau were consistent in describing the deceased having visible injury to his face in the nature of swelling and/or bruising.
12. At least some of the deceased's clothing had been removed by this stage. His jacket was taken from the house when Messrs Pakau and Oaariki left at about 4.17pm.
13. As indicated above (at [206]) it is estimated that Mr Sione was in the bedroom with the deceased for about 3-5 minutes.
14. Estimates by witnesses as to the time between Mr Sione leaving the room and the assault by the young persons commencing are imprecise and inconsistent. It can at least be said that it commenced soon afterwards.
15. The first recording commenced at about 4.21pm. This was about 5-6 minutes after Mr Sione's assault ended. By this stage, the deceased was wearing only boxer shorts. The first images of the deceased show this further assault was already underway. The deceased appeared significantly injured. It was the defence case that he appeared to be more injured than at the end of Mr Sione's assault. [234] It follows that the assault by the young persons had been going on for some time prior to the first recording.
16. The assault concluded soon after the end of the final recording at about 4.42pm. The deceased was left in the bedroom while everyone else left the house. There is little controversy about subsequent events. Ms Dawson and Mr Bartolo later returned. Eventually an ambulance was called. The deceased received treatment and was taken to hospital. He died two days later.
17. Ms Dawson and Mr Sione were separately spoken to by police that evening. They each told lies as described earlier. I am satisfied Mr Sione was prompted to lie because he feared disclosure of his presence at Ms Dawson's home that afternoon would inculpate him in the manner described earlier (at [195]).

Liability of the accused Kayla Dawson

1. Ms Dawson concedes that the Crown has established she is guilty of murder on the constructive and extended joint criminal enterprise bases of liability. [235] However she contends she has made out the partial defence in s 23A of the Crimes Act of substantial impairment because of cognitive impairment. Put more fully, she contends the court should be satisfied there was a substantial impairment of her capacity to control herself because of a cognitive impairment and the impairment was so substantial as to warrant liability for murder being reduced to manslaughter.
2. I am satisfied that Ms Dawson's concession of guilt should be accepted. She was a party to a joint criminal enterprise to lure the deceased to the Perigee Close home for the purpose of assaulting him, intending thereby to obtain a psychological advantage of exacting revenge, retribution or punishment in respect of a perceived grievance.
3. Ms Dawson was in company with co-participants during the detention of the deceased in the bedroom where the assault occurred. She concedes, and I accept, that she foresaw the possibility of one or more other participants in the assault intentionally causing grievous bodily harm.
4. The deceased sustained actual bodily harm during the detention and died two days later from complications arising from the injuries inflicted. These matters render her guilty of murder on both bases of liability mentioned.

Partial defence of substantial impairment because of cognitive impairment

1. The onus is upon Ms Dawson to establish the partial defence: s 23A(4).
2. The standard of proof is on the balance of probabilities: s 141(2) of the Evidence Act.
3. The first issue is whether Ms Dawson has a cognitive impairment within the meaning of that term in s 23A(8). If so, it is then a matter of whether at least one of three capacities were substantially impaired by the cognitive impairment. This is concerned with a person's capacity to: 1. understand events, or 2. judge whether the person's actions were right or wrong, or 3. control themselves.
4. Ms Dawson contends that it was her capacity to control herself that was substantially impaired. [236]
5. I have regard to the directions usually given to a jury, [237] particularly the following: The term 'impaired" has its ordinary meaning and requires proof of a capacity less or lower than the normal range. "Substantial" also has its ordinary meaning of being "of substance" and "not slight or insignificant".
6. Any self-induced intoxication must be ignored in the assessment of each of the two limbs of the partial defence: s 23A(3). There was reference in the evidence of BE to Ms Dawson smoking cannabis [238] but there was no suggestion she was intoxicated to any significant extent so there is nothing really to ignore.
7. The second limb that must also be established is that the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. This is not a matter for expert opinion (s 23A(2)) but calls for a value judgment applying community standards. One must bear in mind the different level of condemnation and blameworthiness that applies to a person found guilty of manslaughter as compared to murder and also to approach this limb in a broad commonsense way. The question to consider is, "Has the accused established that any impairment to her capacity, assuming there was such impairment, was such that she should not be condemned or blamed as a murderer and that she should instead be treated as having been guilty of manslaughter".

Evidence of Ms Lisa Zipparo

1. Ms Lisa Zipparo, senior clinical neuropsychologist, was qualified by the defence to provide an opinion on the substantial impairment issue. Dr Adam Martin, forensic psychiatrist, was qualified by the Crown.
2. Ms Zipparo conducted a neuropsychological assessment of Ms Dawson on 26 July 2023. This yielded low scores on intellectual abilities summarised in Ms Zipparo's report of 2 November 2023 as follows: [239]

• Overall intellectual abilities: bottom 1st percentile.
• Verbal comprehension index: 7th percentile.
• Perceptual reasoning index: 1st percentile.
• Working memory index: bottom 1st percentile.

1. Ms Zipparo also found the following cognitive impairments: 1. Severe executive functioning impairments:

• working memory (1st - 9th) percentile);
• nonverbal abstract reasoning (1st percentile);
• verbal fluency (1st percentile). 2. Severe memory and learning impairments:
• verbal memory (1st percentile);
• learning (2nd percentile).

1. Ms Zipparo found these results were consistent with past assessments which had found Ms Dawson had a mild intellectual disability. The past assessments included a first diagnosis of mild intellectual disability made in primary school in 2010 and by a Juvenile Justice psychologist in 2019. These were referred to in a report of Dr Lucy Cho in relation to a disability support pension claim in 2020 in which Ms Dawson was noted to have the following adaptive functioning issues: [240]

• mild conductive hearing loss;
• deficits in cognitive and adaptive functioning;
• vulnerable to coercion and intimidation and emotional and sexual abuse;
• highly vulnerable to exploitation;
• unable to live independently without significant support;
• needs assistance with communication needs (reading and writing) and managing daily affairs; and
• needs support to plan and attend health care appointments and with financial management.

1. Ms Zipparo also noted Ms Dawson had been reported to have the following behavioural difficulties: [241]

• impulsive behaviour;
• attentional difficulties;
• unstable relationships;
• conduct issues resulting in forensic involvement;
• physical and verbal aggression; and
• suicidal ideation and self-harm.

1. Included in further history recounted by Ms Zipparo was that Ms Dawson was placed in a supported education program at South Coogee Public School in 2010 when the diagnosis of mild intellectual disability was first made. In 2012 she was diagnosed with mild conductive hearing loss and was noted to have difficulties with daily living skills such as tying her shoelaces, dressing, handwriting and toileting. She was diagnosed by Professor Flo Levy in 2014 with Tourette's syndrome, ADHD and ODD. She was placed in a special education program at Matraville Sports High School in 2015 and completed year 10 in 2018 [242]
2. Dealing more specifically with the evidence of substantial impairment, under the heading of "Evidence of permanent cognitive impairment", and after discussing various adaptive functioning deficits, Ms Zipparo wrote: [243] The most recent neuropsychological assessment conducted in July 2023 provided evidence for the neurocognitive basis of these adaptive functioning deficits by elucidating significant executive dysfunction. Impairments of executive functioning provide evidence of frontal lobe dysfunction. The frontal lobes contain the brain structures that are critical for decision making and behaviour. It is well understood that intact frontal lobes allow us to evaluate risk, predict outcomes, select and initiate appropriate responses to situations, and discern the intentions and motivations of others. In turn, it is also well understood that frontal lobe dysfunction results in the inability to evaluate situations, to predict risk and outcomes, to make appropriate decisions and plan appropriate behaviours, and to inhibit undesirable behaviour.
3. These assessments are sufficient to establish that Ms Dawson has, and had at the relevant time, a cognitive impairment. The question then is whether her capacity to control herself was substantially impaired by such cognitive impairment. The experts disagreed on this issue.
4. In her report dealing with substantial impairment Ms Zipparo discussed more than just Ms Dawson's capacity to control herself. She concluded: [244] Ms Dawson is a person with a significant history of neurodevelopmental disorders including Tourette's syndrome, ADHD, Mild Intellectual Disability and Complex PTSD, which at the time of the offences were untreated. Based upon findings of past neuropsychological and intellectual assessments Ms Dawson is a person with substantial and permanent cognitive impairments which at the time of the offences would likely have affected her ability to understand right from wrong and to control her behaviour, and therefore at the time of the murder was likely a person with a substantial impairment for the purposes of s 23A of the Crimes Act 1900.
5. Ms Zipparo had the opportunity on 27 February 2024 to administer some tests in-person which she was unable to do for her earlier reports which were based upon assessments by way of audio-visual link. She expressed her opinion in similar terms: [245] The opinions expressed in my report dated [2] November 2023 remain unchanged regarding Ms Dawson's severe and permanent cognitive impairments, which at the time of the offences would likely have affected her ability to understand right from wrong and to control her behaviour.

Evidence of Dr Adam Martin

1. In a report of 5 December 2023, Dr Martin opined that whether the first limb test in s 23A(1)(a) was satisfied was "contentious, and in this case somewhat speculative". [251] He said the evidence suggested Ms Dawson had the capacity to understand the deceased was going to be assaulted, even if she had not adequately considered the potential consequences. It was not clear that she lacked the capacity to understand the events or appreciate that person might die of a severe beating.
2. The statements made to first police responders about strangers assaulting the deceased were probably consistent with a level of capacity to understand the events and awareness about whether actions were right or wrong. It was Dr Martin's opinion that the actions of luring the deceased to the house prior to the violence, and the protracted nature of the violence that was filmed were not consistent with a loss of control stemming from impulse control problems.
3. Dr Martin described as supposition Ms Zipparo's opinion about Ms Dawson having an inability to evaluate the wrongfulness of her behaviours and an inability to predict the risks and outcomes of her actions prior to the events unfolding. He did, however, accept as plausible that Ms Dawson had not foreseen the actual outcome of the death of the deceased. He accepted that she had a history of impulsive and disinhibited behaviour as outlined by Ms Zipparo. However, "issues of impulsivity stemming from neurodevelopmental trauma are obviously frequently seen among many violent offenders". [252]
4. Dr Martin continued: In my opinion, it may be the case that Ms Dawson had a limited appreciation of the seriousness of the violence and its consequences until too late, and may also [in association with her own previous traumatic experiences] have been more vulnerable to coercion, or felt a limited capacity to intervene because of potential threat/fear, although again, this is conjecture, and an issue for the trier of fact to consider. Taking into account the above opinion, in addition, there was no evidence to suggest Ms Dawson was experiencing major mood disorder or a psychotic state in the time leading up to the alleged offending. Although subject to NDIS support, she was seemingly living relatively independently, albeit at a relatively low level of function. From what I can ascertain, there is minimal evidence of major psychiatric disturbance [such as psychosis or serious disturbance of mood] around the time of the alleged offending and thereafter.
5. During the course of oral evidence Dr Martin accepted Ms Zipparo's findings as to her testing and Ms Dawson's executive functioning; that Ms Dawson "has a degree of frontal lobe impairment"; and that "she has some impairment and is not particularly intelligent and I accept the diagnosis of mild cognitive impairment disability". [253] The issue was whether it had the effect of substantially impairing any the capacities listed in s 23A(1)(a). For example, he could not accept that it rendered Ms Dawson incapable of appreciating that serious injuries could be caused by the assault she was witnessing. [254]
6. Dr Martin also could not accept benign explanations for Ms Dawson's statements and behaviour during the assault that were referred to by Ms Zipparo. For example, Ms Zipparo considered that Ms Dawson filming the assault, laughing, and saying she was going to send a recording of the assault "to Johnno" indicated she did not appreciate that someone was being seriously harmed. However, Dr Martin considered there were a number of explanations for seemingly irrational behaviour, including that there was a callous disregard and that violence was normal and seemed entertaining. [255]
7. The experts were asked to comment upon some specific things said by Ms Dawson during the assault. Some things echoed something said by another participant. For example, at one point MM said, "calm calm calm calm" and Ms Dawson followed by saying, "calm calm". Ms Zipparo described this as echolalia, the meaningless repetition of words just spoken by another person. She said this was a symptom of people with Tourette's Syndrome and also people with an intellectual disability. [256] Dr Martin said "you see in lots of circumstances people parroting what other people are saying in exciting situations. … [I]t was not necessarily evidence that a person is so cognitively impaired they can't think for themselves". [257]
8. Mr Johnson referred to Ms Dawson having made statements in the recordings about phones being "thrust in her hands" or "shoved in her hand" and saying "I don't want them". He asked whether this was an example of her having learnt something from another person intervening, in this instance Mr Bartolo having earlier taken her phone from her and presumably telling her not to record what was occurring. It was Ms Zipparo's opinion and Mr Johnson's submission that this was an illustration of what Ms Zipparo had described of Ms Dawson needing someone to intervene and redirect her behaviour because she had an inability to take control herself. Dr Martin was unsure of the relevance. [258]
9. A problem with this example is that there is no direct evidence that two phones were "thrust" or "shoved" in her hands and the inference to this effect is rather speculative. In earlier simultaneous recordings on the phones of Ms Dawson and BL there is included her saying, "I can't record both" and then moments later her saying to someone, "Can you record that one? Hold the phone". In subsequent simultaneous recordings on the phones of TB and BL she is heard to say, "I don't wanna hold these two phones" and BL responded, "Oi I'll film it, here". [259] Such statements might be an instance of Ms Dawson exerting control over her behaviour. In any event, there is nothing apparent in either instance as to how she came to be in possession of two phones and whether she received them at the same time or otherwise. Further, as Mr Johnson accepted, there was no evidence that both of the phones that were being held by Ms Dawson were in operation. [260]
10. Both experts were invited to consider the significance of Ms Dawson telling a number of lies to police in the immediate aftermath and in ensuing days. Ms Zipparo favoured an explanation to the effect that Ms Dawson was a cognitively rigid and inflexible person because of her frontal lobe impairment and that during the assault she was not thinking about whether it was right or wrong. However, after the event, "her brain capacities are dedicated to getting herself out of trouble"; "she does" have the capacity to reason about right and wrong". [261] On the other hand, Dr Martin considered that telling lies and, upon being caught out, telling further lies, demonstrated Ms Dawson was "not completely on one track, that she can't either go backwards or sideways".
11. Later in his evidence Dr Martin rejected the metaphor earlier used by Ms Zipparo of Ms Dawson being like a car without brakes. He was not persuaded that she lacked the capacity to control her actions and observed that, if likened to a car, she had an accelerator as well. This was illustrative of Ms Dawson's involvement in bringing the deceased from the railway station to the house in the first place. [262]
12. No doubt with the elements of the foundational offence for constructive murder in mind, the Crown Prosecutor obtained unequivocal acceptance from Ms Zipparo that Ms Dawson had the capacity to understand that the deceased was being bashed as payback for what she said he had done to her; that it was a punishment of him; that she considered it was a proportionate punishment for his behaviour that had irritated her; and that a person being bashed, particularly by a group, might be injured as a result. [263]
13. Ms Zipparo did not think Ms Dawson had the cognitive capacity to realise that a physical attack by a bigger, stronger person such as by Mr Sione repeatedly punching, kicking and stomping on the deceased might result in serious injury. She said, "because she was part of the frenzy, I don't think that those cognitive capacities were being activated". [264] Dr Martin respectfully disagreed: [265] I have no doubt that she had the capacity to appreciate that.
14. Towards the end of the evidence Dr Martin again accepted that Ms Dawson had frontal lobe impairment but said: [266] The question is the degree that it affects her general behaviour and especially in these specific circumstances.
15. He was pressed by Mr Johnson to identify examples of Ms Dawson "controlling her behaviour during the offence" and, seemingly having regard to the onus of proof, replied: [267] I think there is an absence of evidence to demonstrate lack of control. That's probably more important.
16. He was asked whether this was where the neurological testing played a significant role in making an assessment of this and responded: [268] To a degree, but I think it is so extrapolated and indirect and inferred, I think it's speculation and I think it's conjecture to say because she's got these problems, she's got these cognitive impairments, she's got some frontal lobe impairments and she's been involved in the alleged offending, therefore, she clearly couldn't control herself. Now I don't think that's ‑ I think that's really indirect and I think it needs to be ‑ there needs to be more direct evidence to demonstrate at that time she was unable to control herself in ways that she could control herself at other times in her life.

Conclusion on substantial impairment

1. The two limbs of the partial defence to murder in s 23A have been set out earlier. It is important to bear in mind that it is for the accused to establish each of them on the balance of probabilities.
2. The foregoing survey of the evidence is far from exhaustive but is intended to convey the differences of opinion of each of the two experts.
3. It must be accepted, as it was postulated by Ms Zipparo and accepted by Dr Martin, that Ms Dawson has a cognitive impairment. She has a mild intellectual disability and, as was pointed out in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [50], the description "mild" should not obscure the fact that a person with such disability is "mentally retarded"; the disability is not inconsequential. It is also clear that she has a frontal lobe impairment with detrimental effect upon executive functioning in the ways described by Ms Zipparo.
4. However, as Dr Martin pointed out, the question is "the degree that it affects her general behaviour and especially in these specific circumstances".
5. Dr Martin was correct to focus upon these matters. Regrettably, Ms Zipparo's evidence often had the distracting element of focussing upon the severity of Ms Dawson's cognitive impairment with less attention given to the degree to which each of the capacities listed in s 23A(1)(a) were impaired. It led her to dilute her opinion during her evidence to a position which led counsel to limit the assertion of substantial impairment to the capacity for Ms Dawson to control herself.
6. The effect of Ms Zipparo's evidence in relation to that capacity was that during the course of the events in the bedroom, in the "frenzy" as she described it, Ms Dawson would have been incapacitated as a result of her cognitive impairment from being able to exert any control over her behaviour. This was to be contrasted to her ability to exert control both before and after with adaptability to the prevailing circumstances, albeit as both experts described, with poor judgment and ill-advised courses of action.
7. The fact that Ms Dawson chose to leave the room on at least one occasion (to go outside and speak to the concerned neighbours (above at [157]) seems at odds with the proposition her capacity to control herself was substantially impaired because she had become caught up in the "frenzy" of the events in the bedroom.
8. Mr Johnson was critical in his address of Dr Martin saying things such as being "less persuaded she is severely impaired when it comes to being completely disinhibited or unable to control her behaviour at any time, no matter what the test results show". The criticism was that this was "not the test. She doesn't have to be completely disinhibited or unable to control her behaviour at any time". [269] I understood Dr Martin to express himself in these ways as a response to Ms Zipparo's way of describing the degree of impairment Ms Dawson was experiencing in relation to her various capacities. For example, her use of the metaphors of cars with no brakes and runaway trains was to the effect that the degree of disinhibition of Ms Dawson and her inability to exert control over her behaviour was absolute, or complete.
9. Some of the things said by Ms Dawson during the assault could be characterised as meaningless repetition of things said by another person (see above at [318]). However, other things demonstrated an appreciation to some extent of the gravity of what was occurring, such as her saying, "Don't want coppers here, I don't want coppers here", "Oi watch the window" and "Oi don't put him through the window".
10. Statements such as those are relevant to Ms Dawson's capacity to distinguish between right and wrong but they also have a bearing upon her capacity to control herself. So too is her decision to send a recording of the assault to "Johnno". No-one suggested she should do that. (Her claim that she was told to do this (above at [239]) is contradicted by her having said at the time, "Just can't stop laughing, I'm sending it to Johnno".) These statements are consistent with some level of appreciation of what is going on and some capacity for unilateral thought and action. In other words, Ms Dawson was not completely devoid of a capacity to control herself as Ms Zipparo's metaphors suggested. It is not, of course, necessary that there be a complete absence of a relevant capacity. The point is that the criticism of Dr Martin is not soundly based.
11. The offence alleged was one that occurred over a significant period of time, a point which seemed largely ignored in Ms Zipparo's assessment of Ms Dawson's conduct. It started with the luring of the deceased to Doonside, meeting him at the railway station and then accompanying him to the Perigee Close home where the planned assault was intended to be carried out. There is little in Ms Zipparo's assessment that involves a consideration of whether and how Ms Dawson's capacities were substantially impaired throughout this protracted period in which a joint criminal enterprise was proposed, formulated and then executed. If the events in the bedroom had occurred suddenly, without warning, it might be more likely that Ms Dawson's actions could be seen as impulsive and less amenable to her capacity to control herself. But that was not how the events occurred.
12. In the end I am not persuaded that Ms Dawson has established on the balance of probabilities that her capacity to control herself was substantially impaired. I have also considered her capacity to understand events or to judge whether her actions were right or wrong. In light of the evidence given by Ms Zipparo I accept that the concession by counsel to abandon a case for substantial impairment in those respects was appropriate.
13. Although not essential, for completeness, even if I had been satisfied that the first limb in s 23A(1)(a) had been established I would not have been satisfied of the second limb in paragraph (b). The murder of the deceased was carried out in such horrific circumstances and the role of Ms Dawson was central to it. Regardless of whether it was her idea in the first place, she wanted the deceased to be assaulted because he had "annoyed" her and had "bullied her". She willingly involved herself with the proposal and implicitly, yet significantly, encouraged the protracted beating by being present and by recording and transmitting it with apparent glee. If there was the requisite level of impairment for the first limb of the defence, it was not so substantial as to warrant her blameworthiness being reduced to manslaughter.

Liability of the accused Richard Sione

1. I am satisfied that an agreement to "bash" the deceased was formed by Ms Dawson and BL prior to 1pm on 4 August 2021 and that by about 1.50pm it included BE and TB.
2. I am satisfied that Mr Sione, AD and MM joined in the agreement after they arrived at the Perigee Close home at 2.33pm. At [272]-[273] above there is summarised the evidence which supports the inference that Mr Sione and the others who were present at the Perigee Close home must have known of the plan. In relation to Mr Sione, I am satisfied beyond reasonable doubt he became a party to the plan prior to the arrival of the deceased at the home. This is based upon the inference he must have known of the plan as just mentioned, coupled with the consistent evidence to this effect of BL and BE (putting aside their evidence concerning matters of detail) and the undisputed fact that he was the first to involve himself in the physical execution of the plan.
3. The alternative explanation advanced in submissions by his counsel was that with the exception of Messrs Pakau and Oaariki who had only recently arrived, seemingly everyone else in the house but Mr Sione was aware of the plan to bash the deceased because of his supposed theft of Ms Dawson's AirPods. It was submitted that after the deceased arrived at the home Mr Sione was seen in CCTV footage walking out to the front yard for a while. He then walked back, appeared to engage in a short conversation at the foot of the steps up to the verandah, and then proceeded to go up and into the house. It was submitted that he may have only just then been told about the theft of Ms Dawson's AirPods. Implicitly he became so enraged by the proposition that he unilaterally decided to go the bedroom and commit a "solo assault" upon him. [270] This is not a realistic possibility.
4. I am satisfied beyond reasonable doubt that the assault that was carried out by the young persons after the departure of Mr Sione was a continuation of the execution of the same joint criminal enterprise to which he was a party. There was not a "solo assault" and then another assault, coincidentally carried out for the same purpose, separated by any significant period of time. The detention and assault of the deceased for the purpose of punishment, revenge and retribution for the perceived theft of some AirPods was a shared objective. There was one joint criminal enterprise to which Mr Sione, the young persons and Ms Dawson were all co-participants.
5. The fact that others did not participate in the assault upon the deceased when Mr Sione was assaulting him does not mean he was acting on his own. It is more likely that after he initiated the interrogation and then the assault, the other participants in the joint enterprise to bash the deceased deferred to him as their superior and allowed him to show them the lead, exert his authority and demonstrate his capabilities.
6. The first basis of liability upon which the Crown contends Mr Sione should be found guilty of murder is that he was directly responsible for inflicting injury upon the deceased which had a sufficient causal nexus with the death occurring, and that he had an intention to kill or inflict grievous bodily harm. The Crown case on this basis fails as there is insufficient reliable evidence to establish the extent of the assault and the injuries caused by Mr Sione.
7. Reference was made by the Crown Prosecutor and Mr Ramrakha to the concept of "withdrawal" from a joint criminal enterprise. Mr Sione does not accept that he was a party to any joint enterprise and so on his case there was nothing for him to withdraw from. Be that as it may, if the Crown is successful in establishing that he was a party to such an enterprise when he assaulted the deceased, in respect of the second and third bases of liability it would be necessary for the Crown to prove that the assault by the young persons that occurred after Mr Sione left the bedroom was a continuation of that enterprise in which he remained a participant. Is it possible did Mr Sione "withdraw" in the sense described above at [30]-[35]? The answer to that question is clear: he did not. He simply walked out. He said and did absolutely nothing to deter or prevent any continued assault by his co-participants in the enterprise.
8. The second basis of liability is that Mr Sione was a participant in a joint criminal enterprise to inflict grievous bodily harm and that the blunt force trauma that was inflicted as a result of the assault by himself and the young persons pursuant to this caused death. I am satisfied beyond reasonable doubt of these elements.
9. The third basis of liability is that Mr Sione was a participant in a joint criminal enterprise to assault the deceased, he foresaw the possibility that one or more other participants might intentionally inflict grievous bodily harm in the course of such assault, and the blunt force trauma that was inflicted as a result of the assault by himself and the young persons pursuant to this caused death. If I had a doubt about the second basis, I would be satisfied beyond reasonable doubt of this.
10. The foundation for the fourth basis of liability is that Mr Sione was a participant in a joint criminal enterprise to commit the offence of specially aggravated detain for advantage. I am satisfied beyond reasonable doubt that he and others detained the deceased in the bedroom without his consent and this was in order to attain a psychological advantage from assaulting and humiliating him so at to exact punishment, revenge and retribution for the perceived theft of Ms Dawson's AirPods. The facts as I have found leave no room for doubt that Mr Sione knew the deceased was not consenting to being detained.
11. I am also satisfied beyond reasonable doubt that the detention occurred by way of Mr Sione and other participants acting in company and that the deceased sustained actual bodily harm during the course of it. Mr Sione's foresight of the possibility of blunt force trauma being inflicted by one or more other participants, individually or jointly, and the fact that death was thereby caused renders him guilty of constructive murder.
12. This offence was completed by the time he left the bedroom so no question of "withdrawal" arises.

Verdicts

1. The accused Richard Sione is guilty of murder.
2. The accused Kayla Dawson is guilty of murder.

Endnotes

1. The deceased was aged 16 years. Consent has been given to him being identified pursuant to s 15E of the Children (Criminal Proceedings) Act 1987.
2. T18.20
3. See, e.g., T1000
4. Criminal Procedure Act 1986 (NSW), s 133(2). The content in this section is sourced primarily from the Criminal Trial Courts Bench Book published by the Judicial Commission of New South Wales.
5. Evidence Act 1995 (NSW), s 141(1)
6. Crimes Act, s 23A(4).
7. Evidence Act, s 141(2)
8. Crimes Act, Pt 11A
9. T605.5, although see also T614.47
10. T703-4
11. Evidence in respect of this was the subject of Ms Dawson raising the partial defence of substantial impairment by cognitive impairment. As for Mr Bartolo, see T306; T783.45; T802.20; 803.10.
12. Children (Criminal Proceedings) Act 1987, s 15A(1).
13. An approximate calculation by reference to a scale on Exhibit D.
14. T585.33
15. By BE: T166.30
16. By BL: T23.10. By Ms Dawson: T307.9. By "all those kids": T517.51.
17. T23.15
18. T495.50
19. T65.43. See also BE at T170.1
20. Exhibits C & J
21. Exhibit E (an earlier version is Exhibit A)
22. T36.7
23. T733.25
24. T27-8; 36-7
25. T145
26. Exhibit E p21
27. Exhibit C
28. Exhibit E, p21
29. Exhibit E, p22
30. T40.6
31. Exhibit AX at [6]
32. T39.12
33. T40.50
34. T41.37
35. Exhibit B, p5. See also BE at T174.
36. T151.45
37. T152
38. T63.32-64.37
39. Exhibit C
40. T165
41. T167-9
42. T199.30; 220.24; 236.45; 254.40; 256-7.
43. T201.3; see also T203.19
44. T170.15
45. Exhibit E
46. T171
47. T149.20
48. T174
49. T172.50; 173.16
50. Exhibit E, p26
51. T176
52. Exhibit E, pp30-31
53. T180.40
54. Exhibit C
55. T319-321
56. T323
57. T324
58. T328-9
59. T329-332
60. T363.45
61. T44-46
62. T46-48
63. T48-49
64. T95
65. T472.35; 478.28-478.50
66. T97.10. See also XX at T121.12
67. T103.42
68. T131-2
69. T160.48
70. T181
71. T186
72. T209.50-212.18
73. T181-2
74. T183-4
75. T268
76. T271.31
77. T186-7
78. T286.21
79. T186.33
80. T188.13
81. T777.35
82. T187-8; 190
83. T287-9
84. T289-290
85. T290; 296
86. T488.30
87. T489.5
88. T492.44
89. T493.26
90. T497.43
91. T498
92. T499.29; 498.45
93. T479.7; 480.6
94. T508-9
95. T502.10
96. T503.
97. T968.40
98. T891.43
99. T976.11-976.27; 995.18
100. T1000.10
101. T518
102. T519-520
103. T522-4
104. T969.1
105. T334-5; 405.10
106. T422.4
107. T335-7
108. T346.40
109. T337-9
110. T343
111. T343; 765-6
112. T378.20
113. T348
114. T349
115. T406
116. T355.25
117. T130-132; 289-290
118. T388.20
119. T989.48
120. T406.30; 424.34
121. Exhibit C
122. T894.15
123. T633-645; Exhibit AH.
124. T113
125. Exhibit C
126. Exhibit J
127. Exhibit J
128. T998.38-998.46
129. Exhibits F/G
130. Exhibits F/G with commencement and duration times in evidence of Ms Kaye-Berry at T644.48
131. T896.4
132. Exhibits C, K and L.
133. T49-50
134. Exhibits A and E, calls at 5.03pm and 5.16pm. Exhibits R at p185 and Exhibit T at p209.
135. Exhibit R, p186.8
136. T765
137. T192.18
138. T49-51; 54-55
139. T585
140. T587
141. T588
142. T589
143. T591
144. T595.20
145. T676.39-677.18
146. T677.20
147. T678-684
148. T686.40-687.4
149. T545-6
150. T899.8; 900.23
151. T547-8
152. T117
153. T118-120
154. T597-602
155. T618.28-.34
156. T603
157. T604-5
158. T606
159. T607
160. T611-3
161. T614. See also 625.22-.28.
162. T616
163. T620-625.9
164. T628
165. Exhibits U/V
166. Exhibits W/X. See also Exhibits Y/Z for the simultaneous recording of part of the same exchange but from a different body-worn camera.
167. Exhibits AA/AB, pp8, 10-11
168. T960-963
169. T1006.3
170. T646.36
171. T734
172. T569
173. T735
174. 737-8
175. T905.34-906.39
176. T125.45
177. T127.22
178. T68
179. T192-3
180. T215-6; 257-8
181. T507.10
182. T518
183. T526-7; 531.9
184. T585
185. T592-4
186. T678-682.35
187. T128-9; 161.50
188. T486-8
189. T520
190. T531.15
191. T535-536.6
192. T739.5
193. Exhibit AA/AB, p10
194. T1005.16-1005.44
195. T350
196. Exhibits M/N
197. Exhibits O/P
198. Exhibits AL/AM
199. Exhibits AN/AO
200. T904.9
201. Exhibit AN/AO, e.g., at pp 15-16; 24-25.
202. Exhibits AP/AQ, Q22
203. Exhibit AR
204. Exhibit AP/AQ, Q617-620
205. Exhibit AP/AQ, Q627-9
206. Exhibit AP/AQ, Q634-7; 645-652
207. Exhibit AP/AQ, Q654-660; similarly at 672-680
208. Exhibit AP/AQ, Q692-3
209. Exhibit AP/AQ, Q729-746
210. Exhibit AP/AQ, Q801-809
211. Exhibit AP/AQ, 845-8
212. Exhibit AP/AQ, 1018-1027; 1033
213. Exhibit AP/AQ, Q1060-1
214. Exhibit AP/AQ, Q1064-1097
215. T943.6
216. T904.40
217. T942-3
218. Exhibit AS/AT
219. Exhibit AT, pp7-8
220. Exhibit AT, p11
221. Exhibit AT, p14, 16
222. Exhibit AT, pp16-17
223. Exhibit AU/AV
224. T721-722
225. T968.23; 1000.3
226. T966.26
227. T120.35
228. For example, see T96
229. T29
230. T34-5
231. T967-9
232. Exhibit E, pp 22-29
233. T41.33; 174.
234. T509-510
235. T944.42 (where "would" is mistranscribed as "wouldn't" (see also MFI.13); T948.46
236. T949.7
237. Criminal Trial Courts Bench Book, Judicial Commission of NSW, [6-550]-[6-580].
238. T192.11
239. Zipparo report, 2.11.23, pp 4-5
240. Zipparo report, 2.11.23, p5
241. Zipparo report, 2.11.23, p6
242. Zipparo report, 2.11.23, p6
243. Zipparo report, 2.11.23, p7
244. Zipparo report, 2.11.23, p9
245. Zipparo report, 27.2.24, p1
246. T842-3
247. T812.25
248. T812.35
249. T789.7
250. T808.26
251. Martin report, 5.12.23, p13
252. Martin report, 5.12.23, p14
253. T794.10; 825.25; 858.16; 869.3
254. T796
255. T797-8
256. T796.50
257. T800.6
258. For the evidence: T861.3-861.23. For the submissions: T937.34-938.13; 953.5; 955.47.
259. Exhibits F/G
260. T860.47
261. T808.35; 809.25
262. T852
263. T856
264. T858.39
265. T859.16
266. T869.17
267. T869.34
268. T869.40
269. T954
270. T979.29 (where "exhibit 46" should be "exhibit 4"); 985.15; 992.9

Amendments 16 July 2024 - Footnote numbering amended. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 July 2024