R v Sloan [2022] NSWDC 492 | Case summary

District Court of NSW|2022-10-18

Director of Public Prosecutions (NSW) (Crown) Criminal Defence Group (Accused) File Number(s): 2020/00315451 & 2021/00182538

THE EVIDENCE OF THE COMPLAINANT AND HIS PARTNER TO BE LED BY AUDIO VISUAL LINK FROM A LOCATION REMOTE FROM THE COURTROOM AND;

THE ACCUSED'S APPLICATION THAT COUNTS FOUR, FIVE AND SIX ON THE INDICTMENT BE SEVERED FROM COUNTS ONE, TWO AND THREE

Introduction

On Wednesday October 5, 2022, the trial of Robert Joseph Sloan was mentioned before me in the District Court, Sydney where and when it was listed to commence.
The Crown rose to apply for the trial to be vacated to allow further preparation of material that had come into existence after the date when the trial date was appointed. This was evidence of recorded telephone conversations between the accused and others which the Crown said provided evidence of tendency upon which it would rely in support of the five charges on the indictment. The Crown announced that it intended that the indictment would be amplified to add a further count or further counts available upon the further material.
The application to vacate was opposed, predominantly because the accused has been in custody for almost two years already awaiting trial, and it would be unlikely that a further trial date could be provided in this court until 2023 which is already burdened with many lengthy trials.
I allowed the trial to stand over until Friday, October 7, 2022, to allow the Crown to assemble the further material upon which it would rely.
In the interim the solicitors acting for the accused had issued a subpoena to the Commissioner of Police to produce a vast array of documents, in response to which a Notice of Motion was filed seeking that the subpoena be set aside. In due course over the following week the parties consulted, agreement was reached regarding the call and documents were thereupon provided to the court with no objection to uplift access which in due course was granted.
Over the ensuing days the Crown continued with arrangements for the documents upon which it intended to amplify the evidence and presented a Notice of Motion with evidence in support for three of the witnesses to be called to give evidence by way of an audio visual link from a remote location because of the fears the witnesses held for their safety and that of their family if required to face the accused in court. The Crown's application was opposed.
The further material was ultimately completed and served by the morning of Thursday, October 13, 2022, with arrangements for the witnesses to be examined and cross examined on the voir dire. This began on that day with evidence from the complainant Tyron Smith, and resumed on Friday October 14, 2022, with evidence from Mr Smith's partner Daisy McDonagh,
Before the hearing commenced the accused was arraigned upon a further indictment, with the sixth count included, to ensure the jurisdiction of the court to conduct the voir dire. The accused pleaded not guilty to each count.

The Indictment

The offences upon the indictment filed with leave on October 13, 2022, allege that the accused: Count One Between 29 October 2020 and 4 November 2020, at Smithfield and elsewhere in the State of New South Wales, did stalk and intimidate Tyron Smith with the intention of causing the said Tyron Smith to fear physical or mental harm. S 13(1) Crimes (Domestic and Personal Violence) Act 2007 Law part code 70753 Count Two On 1 November 2020, at Neutral Bay and elsewhere in the State of New South Wales, did, without consent, take and detain Tyron Smith with the intention of obtaining an advantage, namely, to obtain a psychological advantage. S 86(1)(b) Crimes Act 1900 Law part code 44663 Count Three On 1 November 2020, at Neutral Bay and elsewhere in the State of New South Wales, did use an offensive weapon with the intent to commit the indictable offence of intimidation. S 33B(1)(a) Crimes Act 1900 Law part code 51 Count Four Between 26 February 2021 and 10 May 2021, at Silverwater in the State of New South Wales, did threaten to cause detriment, namely injury to Tyron Smith, with intent to influence Tyron Smith, a witness in a judicial criminal proceeding, namely, R v Sloan, to not attend as a witness. S 322(a) Crimes Act 1900 Law part code 16759 Count Five Between 26 February 2021 and 18 May 2021, at Silverwater in the State of New South Wales, did threaten to cause detriment, namely injury to Tyron Smith, with intent to influence Tyron Smith, a witness in a judicial criminal proceeding, namely R v Sloan, to not attend as a witness. S 322(a) Crimes Act 1900 Law part code 16759 Count Six Between 28 August 2022 and 26 September 2022, at Silverwater in the State of New South Wales, did do an act with intent to pervert the course of justice. S 319 Crimes Act 1900 Law part code 92056

Evidence on The Voir Dire

The evidence called from the witnesses was focused upon the application by the Crown for the witnesses to give their evidence from a remote location and not in the courtroom in accordance with the Evidence (Audio and Audio Visual Links) Evidence Act 1998.
Additionally the Crown read the affidavit of Kimberley McKenzie, solicitor from the office of the Director of Public Prosecutions, to which were annexed an earlier form of indictment with five counts, the Crown Case Statement, a notice of intention to rely upon tendency evidence, and a statement by Detective Sergeant Hayley Matthews. The accused concedes that the Crown Case Statement is a true representation of the source documents from which it was prepared, though it is asserted that it is not a complete representation of or reference to all that the source documents contain. It is conceded that I am not required to go behind the Crown Case Statement to confirm the reliability of the document by review of the source documents, but it is not conceded that the evidence asserting those facts ought to be accepted in its entirety as true and correct.
The annexed indictment is replaced by that upon which the accused was arraigned for the purposes of the voir dire, and the notice of intention to rely upon tendency evidence was in due course replaced with another notice expanding the tendencies for which Crown contends. This and the documents to which it relates are marked Exhibit VD - C.
The Crown also provided the assembled transcripts of captured conversations, which is the additional material prepared during the preceding week, and identified therein those which the Crown submits are relevant as evidence of tendency, as evidence of the misconduct alleged in Count Six, and as evidence relevant to the overall facts and circumstances as they existed between the accused and the complainant from when they formed a relationship in gaol leading to the offences charged in Count One through to Count Five. This was marked Exhibit VD - B. These calls were between 16 August 2022 and 26 September 2022.
The Crown tendered paragraph [39] of a Crown Case Statement prepared for the prosecution of the accused for murder, upon the basis that the representations therein were in the context of the alleged murder without specification of the evidence and the facts said to be provable thereby relevant to that prosecution. The accused conceded that paragraph [39] of the document could be read within that context. This was marked Exhibit VD - A.
The accused tendered 30 pages of listening device transcript of conversation captured in the accused's home. This was marked Exhibit VD - 1. The accused tendered 40 pages of telephone communication analysis to which counsel referred in cross examination. This became Exhibit VD - 2.
The hearing resumed Monday 17 October 2022 when the parties provided further material and made limited submissions with the hearing adjourned until 3:00pm to allow me time to review what has become a significant amount of material upon which to reach my decisions.

The Issues

The issues for determination are: 1. Whether upon the Crown application the evidence of the complainant Tyron Smith may be led by audio visual link from a location remote from the court room. 2. Whether upon the Crown application the evidence of the complainant's partner, Daisy McDonagh may be led by audio visual link from a location remote from the court room. 3. Whether upon the Crown application the Crown may rely upon evidence for the purposes of tendency in accordance with s 97 Evidence Act 1985. 4. Whether upon the accused's application there should be severed from the indictment Counts Four, Five and Six with the trial to continue upon Counts One, Two and Three.

The Crown Case

The Crown case is that the accused and the complainant formed an association in the custody of the Department of Corrective Services; when the accused was aged 57 years and the complainant aged 22 years. They were cellmates. After some initial difficulties the accused became a father figure to the complainant. The complainant was released in April, and the accused in May 2020.
The complainant describes the relationship as forceful, and one from which he felt he could not extricate himself.
In gaol the accused wanted the complainant to join The Heathens motorcycle group. The complainant was not interested but they continued to meet up after their release with the accused's friends until ultimately they met together alone. The complainant was not interested when the accused asked him to sell drugs.
Around July 2020 the accused began to treat the complainant as his subordinate. There were abusive communications from the accused to the complainant, which included insulting remarks about the accused's partner, Daisy McDonagh. To summarise, the interactions between the accused and the complainant, and with and in respect of the complainant's partner, involved threats and demands by the accused for the complainant to devote time and attention to their relationship. Threats included that the accused would send people to kill the complainant and his family, or would come and do it himself, when the complainant held the belief the accused was capable to carrying out the threat.
The following summary drawn from the Crown Case Statement which extends to 23 pages in length. Quoted passages are drawn directly from the document and italicised, adopting the spelling and grammar as they appear. 1. October 1, 2020, the accused was served with a Firearms Prohibition Order. 2. October 19, 2020, the accused sent images of firearms to the complainant, followed by a message, "I needed to talk to you but like always fuck old pockets well fuck you I am over the disrespect you can go and get fucked sent the last of my money then we are done you are avputridvcunt and sonisvya dog missus who made you a dog". 1. On October 24, 2020, abusive messages included a demand for the return of a .22 calibre firearm or the money from its sale. 2. In the weeks leading up to October 29, 2020, the complainant resolved to end the relationship because of the stress it was causing him and would run away for a normal life. 3. In October 2020, the accused discharged a firearm into the garage brick wall of the complainant's house. 4. About 12:30pm on Thursday, 29 October 2020, the accused collected the complainant at his house in the black BMW 318i of the complainant's partner, Daisy McDonagh. The accused said he would repair it. He gave the complainant use of his Green Ford XR6 sedan in the meantime. They went for their usual hang out in Manly. During the afternoon the complainant didn't drink; he was so focused on telling the accused he wanted him out of his life. 5. At the Novotel Hotel, Manly, they spoke of this. In response the accused said if the complainant wanted to not see him anymore he could walk away and the accused would leave him and his family alone. The complainant said that's what he wanted. The accused appeared accepting. Their rule was that the complainant would call the accused daily. The complainant thought this was so the accused could check up on him. 6. About 6:00pm they arrived at the complainant's home where the accused stayed for an hour or two. When the accused left, the complainant deleted all his numbers and blocked him on all social media platforms. The complainant felt relief. The accused took the BMW 318i home. 7. On Friday, 30 October 2020, the complainant received a call or message from the accused during the day to his phone number asking the complainant to call him. The complainant called him back on the number the accused had called from, which he had deleted earlier. The complainant spoke to the accused during the late evening. The conversation was the usual basic check-up. 8. On Saturday 31 October 2020, the complainant did not call the accused wanting to break from him. The complainant went to bed about 04:00am after a Halloween party. 9. About 12:00pm on 1 November 2020, the complainant woke up, and after preparing for the day checked his phone. He had messages from the accused who used two numbers to make contact. The messages included, "I sujestions you ring me now before we endup at war". The complainant responded, "and please don't threaten to hurt me or my family please because your hurt and angry bor im upset I have to part ways bro, but its only way bro, we clash to much and yes, I understand it is my fault the reason we fight but bro I never meant to hurt you and bro you know what I will give you one of the puppies I know you lie them I will give you pebbles if you want her bro I don't want to become an enemies and theres no need to leave it as enemies bro coz at the end of the day I don't hate you bro and you cant make enemies if you hate them, I just hope you don't hate me now bro coz that's what im worried about you hurt what you hate and you said you would hurt me but im sorry bro I cant help but not stress out and think you still will". 1. The accused messaged the complainant "ring me now pleasr". The complainant spoke to his partner and called the accused immediately to try and calm him down. 2. In a lawfully recorded conversation at 10:56am, the following exchanged occurred: "Accused: "its not that hard is it". Complainant: "yeah, yeah, like pockets I cant keep doing this". Accused: "either can I make, cause the day before I sat in the car". Complainant: "...look". Accused: "shut your fucjen mouth and listen to me. You have really pissed me off mate. I asked you one simple thing." Complainant: "yeah to ring ya. I had things going on." Accused: "all day did ya"? Complainant: "yes all day". 1. The accused spoke about police calling him and asked if Daisy is "going crown against me". 2. The complainant said his family are all scared of the accused. "Accused: "ok now if you had rang me yesterday, like I asked you after I messaged you, when you were trick or treating, you weren't having a rough day then, because your mother rang me. Anyway listen to me, get this through you fucken head , ok, the only time there's gunna be drama is when you carry on like a fucken imbecilic with me, ive got no intention of hurting you, Daisy already ratted on me once with the jacks, so if I was gunna do something I would have done it a long time ago". Complainant: "yeah and she knows not to do that anymore". Accused: "and I know a little secret that would rock your world with her, but im not saying nothing. Right, all im telling you is this, I asked you the day before, to ring me everyday you give me your word, I don't care how rougher day it is you can ring me and say listen bro, im stressing out, im having a bad day, im alright, ill call you tomorrow, 5 fucken seconds and you cant do that, really 5 seconds phone call, just so I know your alright and not arrested or anything". There was then discussion about money. "Accused: "its not about the money mate. I am doing it hard but what im really pissed off about…". Complainant: "if you want everything back, I will give everything back". Accused: "are you listening to me?... what I want you to do is start treating me like a human being and your friend and stop treating me like your enemy". The call cut out. 1. In a lawfully recorded conversation at 11:07am: "Accused: "anyway its like this alright, I want you to think about this very carefully, do you really think in my whole like, I would let someone get away with lagging me to the jacks ever"? Complainant: "never"… "no". Accused: "well I haven't, ok, but in your case, in your girls case, I did, I even said to you after that, tell her lets have a fresh start and try again, ok". Accused: "all I know is this fella, ok, you are losing the best friend that you ever had because you cant keep your word, and at the end of the day, its all the lies that do my head in, I don't care about nothing else". 1. The accused spoke about his house and continued: "... if you seen photos of what I've put in here, its for you, not for me, I live in the garage. I've been doing shit and buying shit for you, cause I actually thought you were coming here". Complainant: "I thought I was too bro…. she does not want anything to do with that house…". The line cut out. 1. In a lawfully recorded conversation at 11:12am the accused spoke of complainant's girlfriend making a police report, in response to which the complainant uttered assurances. The complainant responded to the accused that he had "green" left; the accused asked to meet him at McDonalds. The complainant agreed and the accused said, "and we're gunna talk alright", "not for long and I give you my word, no dramas, I just want to talk to you alright, can we do that?". The complainant agreed to meet him at Neutral Bay McDonalds. The complainant told his girlfriend, Daisy McDonagh, that they needed to go to Neutral Bay Maccas to meet the accused as the accused wanted to talk to him and sort everything out. 2. About 1:00pm on 1 November 2020, the complainant left his house in the accused's Ford with his girlfriend, Blake Smith, Blake's girlfriend Victoria and Miesha Wolfe. He did not want to go alone. They arrived around 1:30pm. 3. There are CCTV recordings which captured this attendance. 4. The complainant followed the accused to the black BMW parked near the McDonalds entry. No words were exchanged between them until the accused said, "Get in the car". Though fearful the complainant did this so as not to cause upset. The accused immediately locked the car using a button on the centre console. When he asked what was intended the accused reversed out of the parking spot and left the car park to travel northeast on Military Road. The accused used his right hand to pull out a yellow cloth from his inner jacket. He rested the yellow cloth on his left thigh holding it as if a gun. The complainant realised the accused had a gun inside the cloth and asked, "What are you gonna do with that?", fearing for his safety. The accused replied, "We're just talking". The complainant felt he was trapped in the moving car, with the doors were locked. 5. The accused lifted the weapon pointing it at the complainant. The cloth slid backward revealing the barrel of a handgun. The complainant saw what he believed to be a bullet in the chamber with a copper-coloured pointed head. 6. The accused spoke of the complainant's girlfriend, saying: "I've lost you to a 17-year-old. She's nothing but a piece of shit. She's a slob. She's only going to bring you down and use you for your money. If she didn't have the child, then she wouldn't be with you. You'd be shocked about the huge secret I know about her". 1. The complainant asked about the secret, and he replied: "Nah, nah don't worry about it". The complainant said he needed to know and the accused said: "I think you're forgetting who's in power here". 1. The complainant remained silent fearing the accused would shoot him. When nearing Winnie Street and Military Road the accused tucked the weapon beneath his right leg. He turned left into Macpherson Street and left into Parraween Street, left into Winnie Street, and crossed over Military Road at the lights and turned into a Service Station. This would allow them to enter the southwest lanes of Military Road. When asked the accused refused to pull over and let the complainant out saying, "Not happening". 2. They travelled down Military Road toward the Harbour Bridge. Just before the Warringah Freeway the complainant said, "Can you let me out?". The accused replied, "No". The complainant said, "I don't want to go anywhere". The accused said, "Too bad". The complainant feared what the accused would do to him, believing him capable of getting anyone. 3. On the Harbour Bridge the complainant reached into his pants pocket and opened his phone and with some difficulty the application, Life360 which is a tracking application. This tracked the entire trip and time stamped locations along the way. The complainant messaged the letter 'H' for help to his girlfriend. The complainant put the phone back in his pocket when they were around the Pyrmont Bridge. The Crown Case Statement includes an image of a map from the application showing the travel undertaken. 4. Daisy McDonagh received the notification. She noticed the BMW was no longer in the carpark. She began calling the complainant. The CCTV depicted the green Ford leaving the McDonalds carpark 20 minutes after the accused and complainant had walked off to enter the BMW 5. The complainant's phone rang. The complainant didn't answer because he feared the accused. His phone rang around five times, at which point the accused said, "Pick it up and don't say anything stupid". The complainant answered the call. He held the phone to his ear. She asked, "What happened, are you ok? Do you need help?". The complainant responded, "Yes, I'm fine. I don't need help, I'm ok. I love you bye". The complainant feared what the accused would do if he told her the truth. Daisy detected his fear in the sound of his voice. She called again, kept asking if the complainant was alright, and the complainant kept saying yes, so as not to annoy the accused. Eventually the complainant said, "No". She asked if the complainant needed the Police but he declined fearing it would reveal to the accused that Daisy was of the view that the complainant had been kidnapped. She could not follow as the car she was in had no fuel. 6. She called again. The accused grabbed the phone and called her a slut or something similar. He said, "fuck off you grubby little cunt". The accused ended the call and returned the phone to the complainant who remained quiet from then on. They continued generally west along main roads. They were near Haberfield when the accused returned the phone. 7. When near Wentworthville the complainant's phone rang again but he didn't answer even though it continued ringing, fearing that if he did so it would aggravate his circumstances. 8. The accused received a call from a Paul Kuvener at 2:05pm. This was lawfully recorded: "Accused: "listen I told you". Paul: "where are ya". Accused: "ive had family drama, ill drop it off in an hour or 2. Just leave it at that". Paul: "ill come and get it man. Why didn't you tell me man? Why did you leave me at that servo for?". The accused and complainant are heard speaking in the background: "Complainant: "ill be home soon. Nah I love you. ring me in half an hour, or something, just ring me in half an hour, yes, yes, yes, right, love you, bye". Accused: "I wish she would stop telling you "you want me to ring the police." Complainant: "no she didn't say anything about calling the police". Accused: "well how come…" Complainant: "no she just asked me if I was alright". Accused: "well whats the no, no, no for". Complainant: "she goes "are you alright". I go "yes". She goes "are you lying to me", I said "no"… now I have to tell these guys I will move in". Accused: "but you don't mean it, that's the thing". Complainant: "I don't want you to be left out on the street". Accused: "you don't give a fuck what I do, what happens to me, otherwise when you got the first lot of fines you wouldn't have went out and got more and more and more and more. Not that I care, I told you I don't give a fuck. The only thing I cared about in this whole world is you and you keep trying to take, me, you away from me. And then the only thing I asked you to do was not to lie to me and ring me once a day. like I don't understand why its so hard bro. I really don't you know, I really don't, I don't get it". Complainant: "I will pay you back, ran out of credit on phone". Accused: "Then when you are not a drug dealer, what are you going to do for money, get a job? Yeah you haven't thought this through". Complainant: "I have to… like honestly bro, I do like this house". Accused: "Sorry your groceries went everywhere". 1. At 2:21pm the accused received a lawfully recorded call from 'Toby' and told him, "I've got a personal thing happening here, ill give you a call back in an hour or 2". 2. About 2:32pm they arrived at the accused's house at Smithfield. He drove up the driveway to the residence, behind the street front house, and parked near the front door. They alighted. The complainant wanted to run but felt he couldn't. The complainant looked at the accused and said, "Let's go inside". The complainant had in mind the handgun, which he feared might be at hand in case he tried to escape. The accused said, "Let's go inside". The complainant entered first. The accused followed closely and closed and locked the door immediately with his key. His house was like a fortress. 3. The house is described with images and a floor plan. 4. The accused said, "We're going into the garage". The complainant entered the garage first and sat on the couch closest to the bed. The accused followed the shutting the door. He walked to a cabinet next to the bed, produced a .50 Cal bullet, held it toward the complainant and said, "If you or your Mrs go to the Police, I'll have to kill you and me". 5. Two weeks earlier at the house the accused told him he had other guns. Last time there he saw out on the table the accused's .22 rifle with a brown butt and black barrel. The accused had hollow point bullets out for it. The complainant had a photo of the rifle on his phone. 6. The complainant understood that the accused had machetes and a taser at the house, which made him more fearful. 7. The complainant sat in the garage for about 30 minutes without saying anything to him. The accused sat on the couch across from the complainant, smoked Cones, and gave the complainant what he said were "dirty looks". He said at one stage, "If you think you're going to leave me, you're dreaming, because I'll take everything that's important to you. I don't care I'm dying anyway". The only way out was past the accused and through the garage internal door and out through a window because the accused locked the front door when they arrived. 8. The complainant said to the accused, "Look, I need to report, and I want to go home". The accused said, "Right let's go". This took the complainant by great surprise since the accused had appeared to be aggressive toward him the whole time. They walked outside to the BMW. As they entered it the accused was on the phone. He said something in terms of, "Liverpool Westfield .... I need $30 for fuel.. .... ok I'll see you soon". The complainant didn't know who the call was from, but at 4:02pm the accused had called 'Toby'. This was lawfully recorded: "Toby: "I couldn't hear you properly". Accused: "have you got any of them balls left"? Toby: "yeah". Accused: "I was hoping you would have sold one, I need petrol money to go to the city and bank". Toby: "how much petrol money do you need"? Accused: "$20 and $30". Toby: "I'm getting ready to go to Westfields Liverpool, where Maccas, near St George Bank, or car park across the road". Accused: "ill ring you when you get there". 1. The accused drove to Liverpool Westfields and parked in a car park on the corner of Elizabeth Drive and Bathurst Street. Toby came to the driver's side of the car and handed the accused $30. The complainant had not seen this male before. He didn't try and leave, unsure if the accused still had the handgun on him. The accused drove toward Mascot. 2. The accused drove the complainant to his house. They did not speak. He stopped around the corner from the complainant's house, but the complainant asked him to drop him in the driveway. They arrived between 5:30pm and 6:00pm. Both alighted. The accused asked the complainant to retrieve his keys for the green Ford. The complainant went inside and took the keys from Daisy. He signalled for them to be quiet and walked out and handed the accused the keys. The accused entered his car, closed the door, started it, put the driver's window down and said, "Don't think this is over, don't do anything stupid like calling the Police". The complainant replied, "No, no, don't worry I won't". The complainant asked him for a cigarette, and he handed him three. The accused said, "Alright mate, I've got to go, make sure you message me. Love ya, see you again". 3. The accused drove off and the complainant walked inside, locked the door, and sat with his girlfriend. He was overcome with emotion, fearing for his life and his family's safety. He felt very unsafe knowing the accused knew where he lived. Daisy observed him to be stressed and upset. They spoke about the accused, how he had said that Daisy had been cheating on him, and the complainant told her what had happened to him. "I was held at gun point in the car, taken against my will to the house in Smithfield. There are guns in the house, ammunition on the shelves and a machete under the table". 4. The complainant left his house about 6:30pm and rushed to Dee Why Police Station to report on bail. He then went home and went to bed to sleep, emotionally drained. 5. About 11:00am on 2 November 2020, the complainant woke up to messages from the accused. At 4:46am the accused text messaged the complainant: "I said I would not text you but I had no choice the boys in Melbourne are not impressed they have you adult member non active as they thought you were looking after me. I don't lie to them and they no Daisy lagged me yesterday I have told them to forget it but Frank who is state President want a letter from you explaining why". The complainant's fears were heightened. 1. The complainant text messaged back at 10:24pm: "bro if you can tell him I want out because I wanted a normal start and I have a family on the way and if they daisy lagged does that put her in danger you need to let me know so I can figure out a place to go tell him its fine if he calls me bro I will tell him everything and please bro, daisy yes made a mistake but please its not going any further she's forgot about you now bro, so please leave it and also pockets can we arrange a day where I can pick up that thing even if you leave it somewhere for me to pickup that would be less Redhot, if you know what I mean that's if you're still allowing me to have it". 1. At 10:33pm, the accused sent the complainant the following message: "she may of forgot about but I am getting kicked out Friday I gave you the ultimate test and now no that I meant nothing to you, you have your word you would talk to her again bullshit no one gets out of the club that easy you robbed me disrespected me lagged me I forgave it all can I forget this betrayal do I want to do you think I am going to let you go without a fight I'm not so you better talk to me real soon and tell me we are still friends we will still meet once a week and you will ring me daily that or well no threats mate but you and her will be done promise I am dieing and you gave your word are you breaking your word yes you can have the black thing you can come here by yourself and get it goes wed or thurs". 1. At 10:38pm the accused messaged the complainant: "walk out to the garage and ring me I mean now please". 2. At 10:40pm the following intercepted call occurred: "Accused: "how ya going?". Complainant: "good, so what was that message?". Accused: "what I said to ya was". Complainant: "so basically you are giving me no option". Accused: "well, yesterday you said you didn't want to lose my friendship, so". Complainant: "well bro, at the end of the day I don't want to lose Daisy either." Accused: "I understand that, well she will have to put up with you coming out once a week and ringing me, that's it". Complainant: "yeah well…". Accused: "nah nah is that what you are saying nah?". Complainant: "like what happened when I say no?". Accused: "im asking you a question buddy". Complainant: "there was a threat in the message as well". Accused: "no there wasn't, there was no threat in the message mate. Im saying to you, why should I lose you, I was there before her, why should I lose you for her". Accused: "im not giving you up cunt, im telling you know if I have to go to war with you to keep ya I will". Complainant: "ha excuse me". Accused: "if I have to go to war, you want me to go to war with her to keep ya I will, I don't give a fuck". Complainant: "with her to keep me?". Accused: "yeah im not losing ya". Complainant: "if you touch her you lose me anyway". Accused: "I don't give a fuck, I may as well. I don't care cause if ive lost you already, im going on with it. ok no worries". Complainant: "don't come to this house". Accused: "ill come wherever I want cunt. Ill come there right now you fucken dog, you listening cunt, ill come there right now ya dog, ya's lagged me, ya's". Complainant: "ya call me a dog and call me this and that and you expect me to come back to ya, fuck off mate are you serious?". Accused: "yeah alright don't, watch what happened, watch". Complainant: "see what you said yesterday". Accused: "I don't give a fuck". Complainant: "see you don't give a fuck about anything". Accused: "I give a fuck about you". Complainant: "no you don't". Accused: "yes I do". Complainant: "that's why youre threatening". Accused: "im not threatening because". Complainant: "youre not threatening, you saying your going to war, if you actually cared about me cunt, you wouldn't actually be saying that shit, so it really actually comes down to it that you don't fucken care about me". Accused: "yeah I do cunt". Complainant: "alright". Accused: "I thought about it the whole day, ok listen to me". Complainant: "no I am not listening to you, im sick of listening to you". Accused: "alright dog, im coming there cunt, you want me to come, ill show you, ya fuckwit". Complainant: "no, no, don't you dare. No don't come to this house". Accused: "yeah, watch me, ill be there with about 20 blokes in an hour watch, watch me, you wanna really do this, we'll do it, because im not losing you for that 17 year old slut, I will bury her cunt, I promise ya". Complainant: "yeah, ok". Accused: "its on now cunt". 1. At 10:47pm the accused text messaged the complainant the following: "I don't want drama but you do if you don't ring back, you better have what you owe me and pay for the fines and all you have cost me, you will see how bad you have just made this I will show you how the black one works". 1. At 10:47pm call from complainant to the accused: "Complainant: "ok pockets". Accused: "yes" Complainant: "alright, so now you just made a threat, don't say you didn't make a threat, you said in the message you… no no no. you said you would show me how the black one works". Accused: "I did". Complainant: "no listen, you also threatened to kill the mother of my child". Accused: "no I didn't threaten that". Complainant: "no no you do". Accused: "no I didn't". Complainant: "you just threatened to put her in the ground". Accused: "no I didn't, I just read the text". Complainant: "ok there was no text…". Accused: "do you want to talk or do you want to be a dick head?". Complainant: "im going to talk, you need to listen". Accused: "yeah really, let me tell ya something, see how scared you were yesterday, so don't come across like a tough cunt". Complainant: "no im not". Accused: "don't say how tough you're not". Complainant: "yeah, see you keep threatening". Accused: "because you keep trying to talk over me like a dog". Complainant: "because you never let me talk". Accused: "I do let you talk, stop talking like some hard cunt, just be yourself". Complainant: "like now, ives gotta go out and breach my bail and take my whole family with me". Accused: "no you don't". Accused: "now you don't trust me, im a dog, you've got me thrown out of my house, you fucken played games with me". Complainant: "how did I get you thrown out of your house?". Accused: "what". Complainant: "you said you had money, come on mate". Accused: "its not about the money you fuckwit, I told you, they will not let me stay here by myself. I cant have the lease here by myself, in my name, I told you that… oh not there now?". Complainant: "shes the mother of my child". Accused: "I don't give a fuck what she is, she wont be the mother of anything cunt". Complainant: "that's another threat". …Complainant: "if you are threatening the life of her, and I have to hide her I will". Accused: "well you go do what you want ok, but if you think I cant find you in 30 seconds you're an idiot. Alright the minute you use your name, her name, the minute you head shows, at the end of the day I didn't want to argue with you tonight alright". Accused: "…can we stop yelling at each other for a minute". Complainant: "yeah if you stop threatening me". Accused: "yeah I will stop threatening you. stop trying to throw me away like a dirty old wrag. I tell you now, for the last 6 months I carried you bro. ive done everything for fucken you, and all I asked was 2 things, and I tell you now if you think you are taking them away from me, it aint gunna happen buddy, so you decide, ok you can decide. Alright, im being dead serious right here now, ok". Complainant: "we cant stay here". Accused: "Im telling you bro, im not gunna lose ya that easy, I thought I could, but I sat here all day crying my eyes out like a fucken baby, why should I let someone else beat me like that, why? Ive never let anyone do that, why should I want to do it now? I cant, just cant, because I value your friendship more than what you think. And you get me angry and I make threats and that, but realistically unless you really really piss me off, I wouldn't, do anything to you or her, I don't give a fuck about her". Complainant: "yesterday bro that was to far, come on". Accused: "really". Complainant: "yeah it was". Accused: "youre kidding aren't ya?". Complainant: "no". Accused: "what my one chance to talk to ya? Because if I had of asked you to come, you wouldn't of come. And yesterday was all about me not getting kicked out. Well to late now cause you lied to me about that anyway, but let me tell you something, if you think yesterday was far, too far yeah, you don't know how far I will go". Complainant: "here we go, there's the threats". Accused: "I'm just saying to you". Complainant: "why do you have to say it like that?". Accused: "because you are pissing me off, you are telling me you are fucking me off". Complainant: "to make me think in the back of my head you are going to kidnap me". Accused: "I kidnap you did I cunt". Complainant: "no no no wait". Accused: "did I kidnap ya?". Complainant: "no, this is where you take the story into another part". Accused: "let me tell you something… because what you are saying to me is you have already made your mind up and because yesterday was to far. Is that what it is? Is that what you are saying to me, we are done?". Complainant: "I said I'll call you tomorrow". Accused: "so realistically, let me tell you something, as I said to you, I don't deserve what you are doing to me, and yesterday was the only way I could get you away and talk to you. is to drive off with ya. As I said to ya, I didn't hurt ya, I had no intention of hurting ya, and all the rest of it you carried on with, none of it, I had no intention of doing any of it, all I want to do is talk to you, if I had rang you, you wouldn't have done it. you wouldn't have spoke to me, because at the end of the day, you're are starting to trat me like a dog, for no reason mate…". Complainant: "pockets, yeah, I might have been a bit frightened yesterday of course everyone is going to be frightened in that situation, but im just saying im not big talking at the moment but if you hurt my family, I have to die protecting my family. do you know what I mean, at all costs, just like you". Accused: "I don't care, ill kill me too, I don't care". Discussion about money followed: "Accused: "I'm not interested in your money". Accused: "you have bagged me to your family, you have bagged me all the time, and for why? when I'm the idiot out there doing shit for you. No one else would have. Really did I deserve half the things you done. Then why are you trying to fuck me off like a piece of shit? you make me angry. I dont make you angry you make me angry. and then I forgive you and then don't worry about it. I forgive you and forget about it and it all builds up, and the next minute you are pissing me off. Yeah well yesterday was too far, but at the end of the day if l had of asked you, would you have come? No, you wouldn't and ill prove that to you. You came to Liverpool, to buy a heap of shit car, I live 5 minutes away, and you couldn't stop off and see me, when it was to benefit you, Yeah". Accused: "time and time again, and you never did, but seriously at the end of the day bro, if you hurt me as much as you are about to, have a good think about it, because I can tell you now, I'm not gunna cop it, I wont just cop it sweet bro". Accused: "If you're going to make a bad decision because of her, I'm not making threats, I'm just telling ya, the balls in your court. all I know is this, in my heart, I love you to death. I'm not going to give that up because she is telling you. its not in me to walk away. If we aren't friends we are enemies, its not my call, that's your call". 1. Following the conversation, the complainant spent a sleepless night wondering how to extricate himself from this association. 2. On 3 November 2020, the accused sent the complainant a photo itemising the amounts of money the complainant owed him which was said to be just under $20,000. 3. About 09:30am on 3 November 2020 the complainant woke and went with Daisy McDonagh for ultrasounds. They decided to make a statement to Police about what had happened. They were scared. About 3:30pm the complainant went to Surry Hills Police Station and reported the matter. The complainant asserts great fear of the accused and his associates and believes he could kill him and his family if the complainant fails to comply with the accused's will. 4. At 5:12pm that day the accused text messaged the complainant after numerous unanswered calls: "I guess you have no intention of calling so your word really is garage, well no worries, if you cant keep your word then I don't have to keep mine. So you and I will be porn Kings look on Facebook and Instagram and since I have Georgia's phone number she will receive a video from the Novatel, I cant wait for Daisy to see it, I might send one to her mum want the number plus everyr the last chance one on this I phone watched you liked fo. Actually fuck it all I will take Frank up on his offer he can deal with this but as well as the video the police report where you and the thing lag me every one can see it"… "Should have wiped your prints of that gun." 1. At 5:49pm the accused called Toby and asked him to call his "son" and tell him Pockets is angry and he needs to call him. The accused told Toby his son's name is Tyrone and provided the complainants numbers. Toby advised that the complainant's phone did not ring. The accused provided Daisy's number and asked Toby to call her and pretend to be "Frank from Melbourne". 2. At 10:26pm the accused sent another abusive message to the complainant an image of which is included in the Crown Case Statement. 3. The accused was arrested around 10:30pm at Lurnea. After caution he was advised he was to be charged with "kidnapping" in response to which he said "you're joking about this hey? Are you talking about fucking Tyron? Watch the fucking video footage, kidnap my arse". 4. Nothing of interest was found in the accused's Ford, which he had been driving just prior to the arrest. 5. During lawful search of the accused's residence, at Smithfield around 2:00am, on 4 November 2020, the following items were seized: 1. 1x black notebook (coffee table - bedroom) 2. 1x Purple coloured Blackberry mobile telephone and cord (bedroom - garage) 3. 1x Samsung flip phone (bedroom) 4. 1x Optus phone (bedroom) 5. 1x meat cleaver (bedroom - garage) 6. 1x Nokia flip phone (bedroom) 7. 1x Apple iPhone (bedroom) 8. 1x large knife black handle (bedroom) 9. 1x plastic container with pink coloured lid containing white crystal substance (bedroom - garage) 10. 1x projectile with Super X engraving (bedroom - garage) 11. 1x homemade firearm (bedroom under bed) 12. 1x clear resealable plastic bg containing number of projectiles ammunition (17) (above) 13. 1x pair of men's pants (located in living room on the dryer) 14. 1x hard drive recorder 1. The accused agreed to participate in a Forensic Procedure. As police were engaged upon these processes the accused said: "no one will listen to me. He got into my car freely at McDonalds, he was laughing when he got in. Drove to Liverpool, some friends who will be witnesses. I gave him cars, he crashed, he owes money, he racked up heaps of fines". I didn't kidnap anyone. I didn't have a gun. They made me a prohibited person, there is no way… I pick him up and we got to the Novotel regularly… I was in the BMW, I picked him up in his car… he rang his girlfriend to go home… we went to Westfield and picked $50 up from a mate… he willingly got into the car.. I drove him to a police station so he could report". 1. Offered an opportunity to participate in an electronically recorded interview the accused said "yeah I wanna tell you my side of what's happened, that's only if you'll listen to me". 2. At 2:16pm the accused ERISP commenced and he provided the following: "A13: no kidnapping occurred because it never happened. A24: "Tam" brought that little hand gun and I didn't know it was hidden under the bed or in the bed or wherever youse found it.. I thought he took it away. I have never touched it. I have never actually looked at it properly. A58: agreed met the complainant at McDonalds, the complainant got into the BMW which the accused had been working on and the accused said to the complainant "lets go for a drive, I'll show you the, how, how, how its going now" and he jumped in. They went around the block and the accused said to him "listen, I need you to come and speak to the real estate agent and tell him that, you know, your intention, well, is to move in because its been 5 weeks now and they're not believing me that you even exit. And he agreed. And then, then we drove off to the western suburbs, he rang Daisy and told her to go home… When at Smithfield a friend of the accused's, Paul came and visited… then they went to Liverpool (Toby gave money for petrol and smokes) before the accused took the complainant home. They then swapped cars. … I don't know what he's trying to throw me under the bus, but obviously its because he, he does owe me a lot of money. He's got $9000.00 worth of speeding tickets… A59: not only did I go meet him at McDonalds to show him the car. I went there and scored um a, a quarter of pot off him… when we went back to Fairfield he actually helped me smoke. There was no kidnapping. If you want youse could check with Novotel Hotel at Manly.. he and I go there and spend the day together and end up playing pokies… I spend a lot of time with him. he actually refers to me as his father. Owes: repairs, psychologist report Just a ploy to help him in court or he doesn't wanna pay me the money he owes me I didn't force him into the car, I dint force him anywhere… I stopped many times on the way, at red lights and different things and at no stage did he jump out and try to run away. A71: Speaks about being charged with harassment of other persons due to messages he had sent. "I say stupid things in text messages, that I don't really mean, but, um, I just was trying to get a reaction out of them. A189 - 193: talks about fact, he had been at police station longer than the 6 hours allowed and been refused access to ring his family and solicitor. Also stated assaulted by police. A219 and 222: agrees has been offered lawyer, doesn't want to contact one A303: whilst smoking pot the accused said to the complainant: "like seriously man, you've gotta fuckin' stop lying because, uh, right now, I, I feel like I cant tryst anything that comes out of your mouth, I cant trust anything that you are saying. 312: in fact, until I spoke to him on the pho, and we had an argument the, the night after and I spoke to him on the phone is the first night he used the word kidnapping. And I went, what do you mean kidnapping? I didn't fuckin, how the fuck did I kidnap ya? A390, when asked about pointing a gun at the complainant in the car, the accused said "I didn't pull anyth, any gun out. And, and I don't, I don't even know how you lock the, lock the car fr, from pressing a button. Um, any button that I press he'd be able to reach anyway. But re, realistically I don't own a handgun… and I don't own an orange cloth… A395: at no stage did he ask to get out because he wasn't being kidnapped or forced A403: when police said to the accused "that you've pulled out a 50… calibre bullet and faced the complainant and said "if you or your missus go to the police ill have to kill you and me" he said "well the, the bullets that you're talking about, there's three or four of 'em… and they're cigarette lighters and he knows they're cigarette lighters and he knows they're cigarette lighters. He actually had one in his house. A411: when asked did you ever say anything along the lines of, um, you and your missus, go to the police I'll have kill you and me?" he said "no" A480: informed further offences in relation to intimidation through communications A485: at no stage did I threaten him to kill him or his missus or anything else. Actually, the last text I sent him I said to him, like you keep making out that I am some bad cunt, that im gunna do this and that. Well, I wish ya all the best for the future and I hope you do fucken well, but at the end of the day I still need you to sort out how you're gunna pay me for the fines because I cant afford 'em all by myself. But I didn't threaten him with anybody. Um, the Melbourne boys, I don't know who he's referring to. A506, asked if there was a romantic relationship, the accused said "no". A536: he deletes his text messages, as they fill up his phone A603: back to the firearm located "I didn't think it did look like a firearm. it looked like, um, um a potato gun". A617; agreed that he is current under a firearms prohibition order A628: The accused was shown a photograph of a homemade firearm and agreed that was the gun he had been referring to. He stated there was not a chance his DNA would be located on the firearm and neither would his fingerprints (A635 & 36). Tam moved out 2 weeks ago. A771: in relation to the meat cleaver he said "last night I was cutting up the dogs meat". Pg 103 - discussion about the complainant owning a little 22 pump action shotgun 879: im gunna die in gaol for something I never did He stated he had his own number saved in his phone under "pockets" which is his nickname". 1. On 4 November 2020, a provisional apprehended personal violence order was made naming accused as Defendant and the complainant as the PINOP. The conditions include that he must not: assault or threaten him, stalk, harass or intimidate him, not intentionally or recklessly destroy property that belongs to or is in his possession, not approach him, or contact him in any way unless through a lawyer; not go into the place he lives or works; not possess any firearms or prohibited weapons; and not contact or attempt to contact the protected person either directly or through a third person. 2. On 5 November 2020, vehicle CQ41XU was searched; a small silver flick knife was in the front centre drinks holder. 3. On 6 of November 2020 Toby Wilson contacted the complainant and said he had obtained the number from the accused a while ago, in case the complainant couldn't contact the accused. The conversation via message is included in the form of screen shots from the complainant's telephone. 4. On 4 January 2021, a ballistic expert examined the .22 calibre HOMEMADE single-shot improvised firearm found in the accused's home and seventeen .22 Long Rifle calibre cartridges. The expert described the weapon: manufactured from two lengths of metal tube; a timber pistol grip and some brass components; the 'barrel' portion approximately 110mm (4.3inch) in length; the 'receiver' portion fitted to the timber grip by three u-pins; the improvised firearm is fired by placing a cartridge into the chamber (rear of the 'barrel' portion) and screwing the barrel into the 'receiver' portion; the operator pulls the ring-pull connected to the firing pin and releases it under spring tension causing the firing pin to strike the primer of the cartridge which discharges a projectile; the firearm was tested and was in working order; three primed .22 Long or Long Rifle cartridges were test fired in the exhibit improvised firearm for safety purposes; it was capable of propelling a projectile by means on an explosive and was a FIREARM as defined in s4(1) Firearms Act 1996. There is an image of the weapon. 5. The cartridges bear the WINCHESTER headstamp and each consists of a cartridge case fitted with a priming compound and projectile. They are designed for use in weapons chambered for .22 Long Rifle calibre cartridges and are suitable for use in the exhibit firearm. The exhibit cartridges are AMMUNITION as defined in s 4(1) Firearms Act 1996. 6. On 4 March 2021 the accused posted a birthday card addressed to the complainant from custody. An image is provided in the Crown Case Statement including the handwritten text reproduced here. 1. On the weekend of 15/16 May 2020, Corrective Services conducted a search of the accused's cell at Long Bay Hospital. Located in the cell were numerous notes written on the wall, detailing the complainant's name, date of birth and address and an offer of $20,000 reward payable by Finks MC. At the time the accused was on remand. The images thereof provided in the Crown Case Statement are reproduced here.

Evidence from the Complainant

The complainant was called on the voir dire on Thursday, October 13 2022. His evidence in chief commences at page 8 of the transcript. Included in the evidence in chief are the following representations: 1. He is willing to comply with his subpoena and give evidence as required and according to what he'd previously indicated. 2. He has concerns about coming to Court to the courtroom where the accused would be seated in the dock. 3. He fears for his life, his partner's life, and his child of 17 months. 4. Between two and two and a half years ago at the complainant's mother's home the accused threatened him, his partner, and their baby; the accused said that he would cut off his pregnant partner's head and leave it in the bed for him to wake to; he said that he'd bury them six feet underground with the child; he feared that the accused could send people notwithstanding that he is in gaol; the accused had sent letters to his parents' house (described in the Crown Case Statement); he is very controlling and doesn't want the complainant to have anyone else in life, not even his family. 5. If required to be in court with the accused, he would feel obliged to say what the accused wants to hear; he feels the accused has a hold over him which would be evident if in the same room. 6. He has had phone calls on his partner's phone number from random people asking where they are, where they are living, but specifically where he is.
In response to cross examination: 1. He maintained that he is physically frightened of Robert Sloan, who wanted to control him and wanted him to live with him and not communicate with anybody except him. The accused did not like him communicating with his partner and his family. 2. With some mild resistance he conceded his criminal background including dishonesty and violence leading to his incarceration. 3. Proposed cross examination indicated to counsel was that the assertions were untrue, and the product of imperfect recollection and delusion from misuse of drugs to the point that he faced proceedings that might have had him committed for impaired mental health. The complainant acknowledged his history of drug use, which he said helped him cope with his mental problems and past trauma as a child and from his experiences of the accused. 4. He conceded that he owed the accused money for drugs, and that this was raised from time to time. He denied that he owed the accused money for material assembled for his court cases, or for the repair of the BMW described in the Crown Case Statement. 5. He conceded his association with the outlaw organisation Brothers 4 Life evidenced by tattoos described in the evidence. He conceded other tattoos adorned his body. 6. He denied that he saw himself as a tough outlaw. He denied that he told the accused that he was supposed to "effect a hit on a person". 7. He reached an agreement with the accused in gaol that they would stay in touch after release. He thought they were friends. 8. He conceded crashing a car into a light pole when affected by alcohol, that the car was provided by the accused, but he denied knowing it belonged to the accused. He left the scene with his partner and they both provided false information to the police as to the identity of the driver. Ultimately the complainant was charged with the matter; he informed police the accused was the driver at his direction. This occurred after the alleged threats by the accused that he would kill the complainant and his family. 9. Ultimately the complainant hated the accused. 10. The accused told the complainant to lie about the collision to avoid the complainant suffering gaol. 11. He was forced into seeing the accused in the latter part of 2020. There followed the cross examination and responses to which I refer later regarding the nature of the relationship between the accused and the complainant. 12. He and the accused used drugs together. 13. About the time of the collision, the complainant reported to police that the accused had kidnapped his mother, fearing that it had occurred. He conceded that it had not. 14. He denied suffering paranoid schizophrenia though he acknowledged having reported to health care professionals after the accused was confined that he had been paranoid. 15. His mother got alone with the accused for part of the time during 2020. 16. Some of the transcript described in the Crown Case Statement was read to the complainant, with additional transcript of captured conversation, said to reveal a less acrimonious association than he would have the court accept. His explanations for his assertions which he acknowledged were: "A. Look, I had to say whatever I had to say to him so I wouldn't get myself hurt or my family hurt. I had to lie to him, saying I went to the police. If like, I am pretty sure you all obviously know what happens if, you know, I go to the if someone goes to the police and say, "Oh, yeah, I snitched on you". What are they going to do for that person? Do you really think they're going to pat them on the back and let them walk off? No. Of course I'm going to lie to him. A. Yeah, of course. Of course I had to say that to him. Didn't want to get myself hurt. He's a very violent person. I'm here to, you know, justify why I'm threatened and fearing for my life on him. Yes, I had my bikie issues back in the day, but I wasn't in there just to be violent. I had no family all my life and I got taken by a group of people who I thought were nice. You know, I've been manipulated and lied to my whole life, and then here comes Pockets, rolling up, manipulating, lying. You know, it's even doing it to all of youse. I don't know how youse can't see it. Manipulating and lying about the situations. It was his car. Everything was in his name. He told me to say everything to the police. You can either believe him or believe me. I'm here to say that I'm I'm in fear of my life and I cannot go back down to Sydney, otherwise I will be killed, and I don't know do youse understand that? Or do you want to keep cross examination examinating me on all these useless". 1. In a later portion of the evidence is the following exchange with respect to transcript to which the witness was taken in which he discussed the acquisition of a weapon from the accused: "Q. You were arranging with Mr Sloan to meet him in a few days and get a gun off him, weren't you? A. Yes. Q. If you believed he had a gun with him that day, why didn't you just say to him, "Well, I'll take the one that you've got"? A. Can you repeat that, sorry? You cut out. Q. If you believed he had a gun on him that day, that is 1 November when he took you to his place, why didn't you just say to him, "Can I have the one that you've got"? A. Well, because I was terrified, because he had a gun and there's some things that I know about him, like, acts of violence that I know about him, like, that he's told me in the past. It's just, like, I don't want to bring anything up that like, he could use that weapon against me. Like, I don't want yeah, and it was yeah. That's what I actually yeah, that's what I mean. I didn't Q. But if he was happy to sell you a gun, why not say, "What about the one you've got?" A. It wasn't, like to be honest, I have no idea. I'm thinking of it now and I have no idea. I probably didn't think about it at that time. Q. It wasn't obvious to you? You wanted a gun, he had one, he was happy to sell you one or get you one and it didn't occur to you to ask for it; is that right? A. No, he paid for two firearms from some guy. I don't remember the name, but he paid for two firearms, and he said that he was going to give them to me and he ended up giving me one of the firearms. I didn't buy it, like, pay for it.He gave it to me. Q. A couple of weeks A. Yes, I asked for it, but he's the one that gave me to it. Q. A couple of weeks A. I asked yeah. Sorry. Go. Q. Sorry, you finish. Let me know. A. I asked for it for a protection basis on my end, not like, to protect me and my family of what was happening, the situation. If I ever needed to use it, which I don't think I ever would, and I would have had the guts to use it. Q. A couple of weeks before this meeting at Maccas, you wanted a gun and he got one from another person and you didn't pay for it, did you? A. Yes, that's correct. Q. Mr Sloan said to you, "Well, if you haven't got the money for the gun I have to give the gun back", didn't he? A. Yes". 1. The complainant conceded that when they left the accused's home he drove the complainant to report to the police in accordance with bail conditions. 2. The cross examination continued over some length drawing forth representations that standing alone might suggest circumstances inconsistent with the tenor of the recordings upon which the Crown relies. However they must be read with reference to the explanations given by the accused, asserting his fears illuminated by the content of the recordings advanced by the Crown in which the accused is captured speaking. The assertions by the accused included abuse and threats toward the complainant and his partner, and his acknowledgement of and reasons for them.
In re-examination the Crown elicited evidence consistent with the fears asserted. This exchange included: "Q. You were asked about parts of these messages some messages and conversations between you and Mr Sloan. Before lunch, if you take it from me, you were asked about a phone conversation reference from my friend, page 32 of the product 40 pages on 1 November where Mr Sloan asked if Daisy was going to "go crown" against him. Do you remember being asked about that? A. Yeah. Q. It was put to you in something of a summary form of parts, but did this exchange take part as part of this? I'll put it into context. You said this: "All day I had shit going on". Sloan said, "So did I after the coppers rang me". You said, "Yeah, coppers ended up ringing Daisy as well". Mr Sloan said, "Yeah, I bet they did. She going crown against me, huh?" You said, "Excuse me", and Sloan said, "Don't mouth off. I'm asking you a question, cunt", and you said, "I'm not mouthing off", and he said, "I'm asking you a question". You said, "My family would never go crown against you". Was that part of that conversation as well? A. Yes. Q. How were you feeling during that part of the conversation where he says, "Don't mouth off. I'm asking you a question, cunt". A. Yeah. Absolutely terrified. Q. You gave evidence at various times about a threat to your partner. Was there a phone conversation on 3 November in the morning where Mr Sloan said this: "I'm not giving you up, cunt. I'm telling you now, if I have to go to war with you to keep you, I will". Q. Where you said, "Excuse me", and Mr Sloan replied, "If I have to go to war you want me to go to war with her to keep you, I will. I don't give a fuck". Do you remember that as part of that text A. Yep. Q. phone conversation, I'm sorry? A. Yep. Q. Did he say this: "I don't give a fuck. I may as well. I don't care. Because if I lost you already, I'm going on with it. Okay, no worries". Did you say to that, "Don't come to this house"? A. Yes. Q. What house were you talking about at that stage? A. My mum's house. Q. Did Mr Sloan respond to you, saying this: "I'll come wherever I want, cunt. I'll come there right now, you fucking dog. You listening, cunt? I'll come there right now, you dog. Youse lagged me". Did you say to that, "You call me a dog and call me this and that and you expect me to come back to you, fuck off, are you serious?" Did you say all that? A. Yes. Q. That was exchanged between yourself and Mr Sloan at that time? A. Yes. Yes. Q. Did that call end with this exchange: Mr Sloan saying, "All right, dog, I'm coming there, cunt. You want me to come, I'll show you, you fuckwit", to which you said, "No, no, don't you dare. No, don't come to this house". Do you remember that? A. Yes. Q. Did Mr Sloan say this: "Yeah? Watch me. I'll be there with about 20 blokes in an hour. Watch. Watch me. You won't really do this. We'll do it because I'm not losing you for that 17 year old slut. I'll bury her, cunt, I promise you". Did he say that to you? A. Yes, he did. Q. Hearing those words now and remembering that conversation, did that have any bearing on how you feel as today about not wanting to go to court? A. Yes. Yeah. I A. I from like, from this guy, I've like, have now got paranoia. I sit up to hours at a time, just watching my door. I hear a little noise, I'm thinking he's sent people after me about to kick my door down. Like, I have a firearm and weapons provision order against me, so I'm that terrified, like I can't even you know, I wanted to get into the army to try and defend myself and defend my family because of all this. But, no, I can't even sleep at night".

The Evidence of Daisy McDonagh

The following day the complainant's partner, Daisy McDonagh gave evidence commencing at page 62 of the transcript. I do not intend to repeat much of evidence here but shall simply note that she asserted fear of the accused against the background of her contact with him through his association with the complainant, and described threats attributed to him in terms that he would kill the complainant, kill her, and kill their child.

The Crown Case Statement for the Unrelated Prosecution

The content of paragraph [39] of the Crown Case Statement prepared for the accused's unrelated murder prosecution is in the following terms: "Telephone InTyron SMITH met up with SLOAN weekly at the time SLOAN was still living at Hunts Hotel. While SLOAN and SMITH were driving in the Casula area SLOAN told SMITH that he had killed the girl who they had met up with the week before at a shopping centre driving the Astra convertible. SMITH recalled the appearance of CARROLL and her driving the Astra convertible with a broken roof but did not recall her name. SMITH recalled her name was something like Nicole or Natalie. SLOAN told SMITH that he took CARROLL out to bushland and killed her. SLOAN described the thrill/turn on this gave him to see the fear in CARROLL's eyes when he told her he was going to end her life. SLOAN described CARROLL's attempt to flee and grabbing her and smashing her face with a baseball bat and how he found this exciting. SLOAN described how swollen CARROLL's face was, how he enjoyed seeing CARROLL in the pain that he caused, and that she was 'wheezing for life'. SLOAN told SMITH that PARKES was 'getting agitated' and SLOAN told PARKES to take part or 'you'll be with her'. SLOAN told SMITH that PARKES used a rock to hit CARROLL. SLOAN told SMITH that he himself also 'finished off with a rock'. SMITH asked SLOAN what it felt like. SLOAN replied, 'She is just a piece of meat; her life is worth nothing'. A couple of weeks later SLOAN told SMITH 'That little bitch slut has been found…That chick I was telling you about.' SMITH asked SLOAN if he thought anything linked SLOAN to the murder. SLOAN responded 'I did it pretty properly. I burnt the car [Mercedes]and I burnt the body.' SLOAN also said something to SMITH about petrol but SMITH cannot recall what. SMITH was fearful of SLOAN after this second conversation and on 10 Aug 2020 made an anonymous internet report to Crimestoppers and asked local police to check on SMITH's mother to see that she was safe. SMITH was so anxious about having to meet up with SLOAN that he called an ambulance and had himself admitted to hospital".

Telephone Intercepts from 16 August 2022

For the allegation in Court Six the Crown relies upon evidence of captured telephone conversations in which the accused participated. There are many of these, marked Exhibit VD - B, from which the Crown extracted those upon which it relies to support the application for the evidence from the complainant and his partner to be adduced by audio visual link. The calls were between the accused from custody to a man named Logan Redman. I have extracted salient exchanges from the messages identified by the Crown. "12:14 - 28/08/2022 … REDMAN: Um, fuckin what else. What's happening in there, nothing? SLOAN: Nah fuck all brother. I um, I go for me trial for this bullshit kidnap on ah 4th October at the Downing Centre. REDMAN: Okay. I'll be there SLOAN: Yeah sweet. That'd be mad if you come. Hopefully fuckin, he'll have the shirts made up by then and you can come in wearing a fuckin Heathens shirt. REDMAN: Yep. Well fuckin, well um what does he, does he know what has to be written on them and that? SLOAN: Yeah, he's got a picture of it. It's just a black jumper with Heathens MC on the front of it, with HFFH going down the sleeves. REDMAN: Yep SLOAN: That'll look mad you know what I mean REDMAN: Yep … SLOAN: Can you um, when you get a chance look up Tandy Leather and see if you can find somewhere where they sell fuckin um leather tools and leather. REDMAN: Leather tools and leather SLOAN: Yeah because, um you can buy one inch stamps for belts, for making belts and um, that writing, the writing that's on the fuckin, um those stamps, the one inch stamps is exactly how Heathens has got to be written. REDMAN: Okay. SLOAN: Do you know what I'm saying to ya. Hey REDMAN: Um Candy Leather… SLOAN: Tandy, T T REDMAN: Ah Tandy SLOAN: Tandy. T A N D Y. Tandy REDMAN: Yep SLOAN: Leather. And somewhere that sells um leather work and tools for making leather work REDMAN: Alright. I've written that down. Kristen said she knows a place in Camden or something. SLOAN: Yeah well, um the one inch belt stamps, its for making belts. Belts are easy, all you do is get the fuckin blank ones, stamped in Heathens MC and then fuckin paint em black and then print Heathens in orange. It's real easy. REDMAN: Alright SLOAN: Anyway. Alright, listen, work on getting his address. I'll keep fuckin asking any cunt in here. I got an idea he'll be in Green Valley. Alright, I love ya and I'll try and ring you tomorrow, around the same time. REDMAN: Alright. Love ya. Bye SLOAN: Love ya brother. Bye Call ends 12:39 - 29/08/2022 SLOAN: How you going brother REDMAN: Alright, what you doing? SLOAN: Not much. Listen I wrote last night, I wrote last night to Big Ray, Big Ray Martin, he's a mate of mine. He's sergeant of arms of the Banditos, and I wrote to him and go, fuckin one of their blokes, Jason Reece says he's a Bandito. I said he's been threatening girls and carrying on like fuck wit. I go, I know he's not one of your members, he's from the boneyard, I go, but he's telling everyone he's a Bandito all the time. REDMAN: Yep SLOAN: So, if we can find out where he is staying that'd be mad. REDMAN: He used to be staying at, what address was he…32 Park Road was where he was staying before he went to gaol, but he was living here so I don't know how. … SLOAN: Okay, you reckon that's where he is now? REDMAN: That's where he was before he got locked up for ages SLOAN: Alright. Alright, sweet. We'll get him fixed up REDMAN: Yep SLOAN: Cause I know he's not one of em. REDMAN: Yeah I know, that's why, like if he was one of them he'd know that the Angels and Bandits get along anyway, so. SLOAN: Yeah he's a dickhead. They share the same gaol. REDMAN: Yeah exactly SLOAN: But um, alright. I wrote to Big Ray anyway so, its all good. Big Ray Martin. He's from um, he's from Warwick Farm chapter so REDMAN: Yep SLOAN: I'll give him the address anyway, …. REDMAN: Yep SLOAN: They might know where he is anyway REDMAN: More than likely. … Female (KRISTEN): Um green REDMAN: It's not green. It's definitely not fuckin green (laughing) SLOAN: Wow. Why would you be wearing green. REDMAN: Um, green's my favourite colour SLOAN: It should be orange and black's your favourite colour you funny cunt REDMAN: Yeah that's my …colour. (Speaks to female) SLOAN: laughs. Um did you find anywhere that sells leather fuckin punchers. REDMAN: No they're permanently closed, that place SLOAN: Yeah, so there's nowhere? REDMAN: Nah, there'll be somewhere, um, I just got Kristen to look it up yesterday, like straight away and when you hung up she goes, babe that place is permanently closed. I've gone, you could've fuckin told me that fifteen minutes ago SLOAN: Well if you can find one, it's one inch belt fuckin alphabet and I just want you to get a copy of the writing cause that's what Heathens has to be done in. REDMAN: Okay sweet SLOAN: You know the writing that I've sent you now where I've done the patch REDMAN: yeah SLOAN: It's very similar to that. … Call ends 12:01 - 30/08/2022 … SLOAN: I just sent you a quick letter last night right. And I've drawn a quick picture of how the T-shirts are gonna be REDMAN: Yep SLOAN: Um, have you, do you ever got to Parramatta to Westfields? REDMAN: Um, no it haven't but I can SLOAN: Well there's a shop there, they do one offs. REDMAN: Yeah SLOAN: And you could just get one made REDMAN: Yep SLOAN: It's pretty simple. You can put Heathens in whatever lettering you want for now REDMAN: Yep SLOAN: and just the triangle with the 1% and write down next to it, down the bottom MC REDMAN: Yeah okay. SLOAN: I don't think it'd cost you much to get one done. And then you can get a photo and send the photo to me … Call ends 13:52 - 31/08/2022 … SLOAN: How are you brother REDMAN: Not bad, not bad. Hey guess what SLOAN: What REDMAN: … Carramar is where that little fuckin dog lives SLOAN: What is it … SLOAN: Carramar. Beautiful. Cause I wrote to fuckin me mate from the Banditos and said that there's a bloke threatening fuckin women and carrying on, and um he keeps throwing round the name that he's a Bandito. REDMAN: Yep SLOAN: But I gave that Park Street address so I'll give em this one now. … SLOAN: Oh okay. Um listen. REDMAN: Yeah SLOAN: I need you to keep, tell Kristen to go online and there's a thing called Justice Connect. REDMAN: That's what she goes through. SLOAN: Hey REDMAN: That's what she goes through SLOAN: Aaw okay REDMAN: Yeah…she's trying today again. What did it say. No video visits so were going to try and do a fuckin in person one. Fuck it SLOAN: Yeah sweet. That'd be grouse REDMAN: Yeah. Cause instead of fuckin, you know, she said that we'll just have to get to fuckin Silverwater. I said that's all good. I said I'll ring my mate and we'll get an Uber there. Doesn't matter. SLOAN: Yeah sweet. That'd be good if you can do that. REDMAN: Yeah SLOAN: Cause I really need to talk to you about a few things REDMAN: Yeah well its probably better in person anyway … SLOAN: But yeah, if you can try and get a fucking contact visit, come and seem me cause I would really love to talk to ya REDMAN: Yep SLOAN: That'd be mad … SLOAN: Yeah. Okay. Um, yeah its all good. Once I speak to ya, fuckin things might be different for ya. REDMAN: Yeah SLOAN: Actually I'm pretty sure I can guarantee it REDMAN: Yeah SLOAN: You know what I mean REDMAN: Yeah SLOAN: Um, do you remember Parklea? REDMAN: Yeah SLOAN: Yeah. You know what I'm talking about? REDMAN: Yep. I know SLOAN: Yeah sweet. All good my brother. I'll talk to you anyway, when fuckin I can, you know REDMAN: Yeah of course SLOAN: That'd be good to see ya. Don't forget I go to fuckin court on the 4th of October, at the Downing Centre. REDMAN: Downing Centre...we already got it written down SLOAN: Yeah mad. Mad. REDMAN: You wanted me to bring white Asics or something hey? SLOAN: Um, nah if you can get em, to send, like put em in to the gaol so I can for me court, for when I go to court REDMAN: Okay, um I'll look at getting some today. SLOAN: Alright. If you can afford it. If not, you know. REDMAN:…..I'll get em…you know, if you want it you have it. … Call ends 11:10 - 04/09/2022 … SLOAN: Aw he's a gronk. Like unbelievable shit. But it is what it is. But yeah, if you end up, if you can come to court for me on the 4th that'd be mad. REDMAN: Nah, I will SLOAN: Because um, yeah and I need you to try and wear one of our fuckin' shirts. REDMAN: Yeah, I'll um SLOAN: If you can get one made for yourself at one of them places that'd be mad REDMAN: Well, I can fuckin', ah. I know that um, Kristen's got it written down and that. I know that. SLOAN: It's got what REDMAN: Kristen's got it written down and that SLOAN: Yeah. All I'm saying if you can go and just get orange lettering with Heathen's MC on a fuckin jumper and wear it to court, that'd be mad. REDMAN: Yep SLOAN: You know what I mean REDMAN: Yep SLOAN: And if you've got a couple of boys to go with ya, that'd even be better. REDMAN: Yep…I have to fuckin… SLOAN: I've sent ya, I've sent you. Listen, I've sent you a fuckin' letter anyway with, showing ya so you should be sweet. REDMAN: Yep … Call ends 11:24 - 11/09/2022 … SLOAN: Hey can you still get me the shoes or not REDMAN: Yeah SLOAN: I need you to get them to my sister before next Sunday REDMAN: Yeah, I'm waiting for a little ten to go in my bank and fuckin, after that I'll buy you the white, white and green if you want. What's your favourite colour, orange. White and orange SLOAN: Yeah or if not, black and orange REDMAN: Yeah, alright I'll do black and orange cause fuckin SLOAN: That's out colours REDMAN: Yeah that's right … SLOAN: Alright, and um. Remember my court case is on the 4th REDMAN: Yep 4th of August SLOAN: No, 4th of October at the Downing Centre REDMAN: Yep SLOAN: I really, if you can get a t-shirt made up that'd be really good because I just want the little cocksucker that gets in the box to see ya REDMAN: Yeah SLOAN: God love ya (laughs). Hey its funny but. I was in the cell upstairs where you must have been in and its got six pack, eight, 1%, Heathens, HFFH, its mad. REDMAN: Yeah, awesome … Call ends 13:39 - 12/09/2022 … SLOAN: Have you been getting, did you get any more mail off me yet? REDMAN: Nah not yet I haven't got anything SLOAN: Um, as I said to ya, um unless you want to wait and get another cheap phone, but I've told a couple of the boys they can put your number on in case they need to get an urgent message to me REDMAN: Yeah SLOAN: Is that alright? REDMAN: Yeah its all good. … SLOAN: And I definitely need you to come on, um either the 4th or the 5th, on either one of them but one of them days REDMAN: Yep SLOAN: Cause he'll be the first little dog to give evidence, so REDMAN: Yep, alright SLOAN: That's why I wanted you to wear a shirt, you know what I mean. REDMAN: Yeah, alright. I gotta go to the fuckin markets or wherever it is SLOAN: You can get em done in Parramatta but that's at Westfields RAEDMAN: Yeah SLOAN: And I got no idea, its just a shop in there that does it all, makes hats and everything REDMAN: yep SLOAN: But yeah, how's everything else going? That fuckin cocksucker hasn't been back? REDMAN: Nah not yet but I got his address anyway SLOAN: I got his address. I sent it to fuckin, you gave it to me the other day, can… um what was it fuckin, REDMAN: Caramar or some shit SLOAN: Caramar that's the one. A hundred something or whatever. I got it written down inside. I've already sent it off to them REDMAN: Yep SLOAN: Like he can't be telling cunts he's a Bando, he's not a Bando REDMAN: Yeah SLOAN: He's a piece of shit REDMAN: Yeah he's a fuckin dog SLOAN: But yeah like, don't worry about it dog, he'll get his day. They all do you know what I mean … Call ends 12:39 - 15/09/2022 … REDMAN: Nah, all good. All good. I'm just trying to find one of these shops that fuckin do the um, the jumpers and that like, like as soon as I order it I can get it that day. Cause I don't wanna wait around and fuckin SLOAN: Yeah, nah there's one at Parramatta, they do it while you wait. REDMAN: Aaw it is a dual sim cocky, it is a fuckin dually. SLOAN: Hey REDMAN: I said it is a fuckin dually cocky, it's a fuckin dually mate. Dual sim SLOAN: The what? REDMAN: Dual sim SLOAN: Yeah … SLOAN: Cause I really fuckin, I'd like to see ya … SLOAN: (Laughs) Alright bro, alright. But yeah if you can get a shirt made, get cause August the 4th's comin' quick bro. REDMAN: Hey SLOAN: August the 4th is gonna, ah sorry October the 4th is gonna come quick. REDMAN: Yep. Well um, so I got the shoes so that's check and I just need to get this jumper SLOAN: Yeah mad REDMAN: I'm just trying to find a place that gets it like, overnight. Like bang, you know. SLOAN: Yeah REDMAN: So I don't gotta wait around and go pick it up. Cause Kristen goes, aw babe there's one that you can pick it up in um, seven to ten working days. I said, like fuck. SLOAN: Why you'll still be able to wear it by the 4th REDMAN: I know, I know but I wanna wear the cunt now. SLOAN: Yeah I know. Hey don't forget to, and send me photos when you get one done with you in it. REDMAN: Okay, yeah I'll do it straight away … Call ends 13:50 - 17/09/2022 … SLOAN: Are you still trying to get a t-shirt made REDMAN: Of course SLOAN: Good, cause fuckin um, courts gonna come up quick, its only a couple of weeks now. … REDMAN: But um I, I gotta go to um, ah a mutual friend's, ah in Dee Why anyway SLOAN: Aw yeah, that'd be nice REDMAN: Yeah SLOAN: Alright. Alright brother, thank you very much. I'll try and ring you tomorrow alright. REDMAN: Okay, no worries brother … Call ends 12:33 - 18/09/2022 … SLOAN: Yeah. Don't forget um, my trial starts on the 4th but I think you should turn up on the 5th because we'll pick the jury on the first day and it'll start on the second day, which is when that little cocksucking dog will give his evidence. REDMAN: Yep. Well ah I already told a few boys up in … so. SLOAN: Yep, but yeah it'd be good if you turned upon the 5th REDMAN: Yeah of course. Um, I gotta um, I'm still lookin' for a place cause I can't get to Parramatta, um so … Call ends 10:39 - 21/09/2022 … REDMAN: Not bad, not bad. Hey ya mates called me this morning SLOAN: Who REDMAN: Rosie SLOAN: Hang on, who REDMAN: Rosie SLOAN: Roadsie REDMAN: Yeah, Rosie R O S I E SLOAN: Where from REDMAN: Ah, the police SLOAN: Where REDMAN: The police SLOAN: Hang on. The police called ya REDMAN: Yeah SLOAN: What for REDMAN: Cause they were saying fuckin, um that ah your phone calls are recorded this and that and fuckin if I interfere with any witnesses and shit like that and I just told them, I said basically…I look after myself and if I wanna make the wrong decision, I can make the wrong decision and I'll wear the consequence SLOAN: Yeah, what witness they talkin about REDMAN: I don't know, I asked her, can you tell me what cop you're talking about and she said I know and I was like okay SLOAN: What a fuck wit REDMAN: That's what I said SLOAN: Yeah don't worry about em brother REDMAN: Nah I know … SLOAN: Yeah sweet. But yeah I don't know who the fuck they're talking about REDMAN: Nah, neither do I…I just told em basically I have no fuckin clue what you're talkin' about, can you tell me what you're taking about, and they said no, nah you know what we're talking about and SLOAN: I wouldn't worry about em brother REDMAN: Nah I'm not SLOAN: Rosie REDMAN: Yeah SLOAN: I don't know who that is. Some slut. Go fuck yourself Rosie ya dog REDMAN: (laughs) SLOAN: I don't know who they're talking about. To me, fuckin, I can't wait for me fuckin case to come on board. REDMAN: yeah, like that, and then she even said um, that you like to influence young men like myself and then she's like…he also likes to influence young girls. I said, well mate are you calling me a bitch or something, like is that what we're doing. SLOAN: What a stupid slut. REDMAN: Yeah SLOAN: I don't even know who she is REDMAN: … SLOAN: What a fuckin mole. She's just some cocksucking slut with a smelly cunt. True brother REDMAN: That's exactly right SLOAN: Hmm anyway … SLOAN: And um, yeah. That stupid copper, she must have been talking about that little dog from Dee Why. REDMAN: Ah, I'm not too sure SLOAN: Who else could she be talking about REDMAN: Hmm SLOAN: And influence young fellas, for what. What a fuckin mole. She should get her facts right, she doesn't know what she's talking about the dumb dog. REDMAN: Yeah SLOAN: But um, don't worry about em anyway REDMAN: Yeah, I'm not … SLOAN: But um, yeah phone calls from coppers. I told ya before, that's what they always do. REDMAN: Yeah I know, they're pieces of shits SLOAN: And I wouldn't worry, in two weeks we're going to trial and that little dogs gonna be shown up for being the lying little mutt that he is REDMAN: Yeah SLOAN: So. But yeah Rosie, I've never heard of her. REDMAN: No, okay. Well she just told me she was from the police, that's all she said SLOAN: Hey REDMAN: All she said that was, um that she was from the police. That's all SLOAN: She's from the what REDMAN: Ah that she was from the police SLOAN: Yeah. I don't know, they can listen to all me phone calls they want but we never threatened any fuckin witnesses REDMAN: That's right … Call ends."
The statement by Detective Sergeant Hayley Matthews, the police officer in charge of the investigation, provided a statement on 29 September 2022, annexed to the affidavit of the solicitor from the DPP in support of the application for the evidence by way of audio visual link. This provides a useful summary of the factual matrix the Crown intends to present in support of Count Six.

Evidence Tendered by the Accused

The evidence tendered on the voir dire by the accused included Exhibit VD - 1, comprising the surveillance device warrant and transcript of conversation captured in the accused's home on 1 November 2020, and Exhibit VD - 2 comprising the telecommunications interception warrant and conversations captured pursuant to it. It was from these sources that counsel read in the cross examination administered in the voir dire.
Counsel also tendered the statement of a correctional officer, Michael Longbottom, who examined the cell occupied by the accused and another inmate in which graffiti had been marked on the wall walls. These included those which appear in this judgement drawn from the images in the Crown Case Statement.

The Relationship Between the Accused and the Complainant

Implicit in the representations in the Crown Case Statement replicating a significant part of the captured communications between the accused and the complainant, by telephone and in person, is the proposition that when cell mates in gaol the accused and the complainant became close and that the accused wanted to continue their relationship notwithstanding reticence demonstrated by the complainant. The depth and parameters of the relationship are not defined in the Crown Case Statement, but it is an available inference from the facts described that at least on the part of the accused the relationship was perceived to be close with hallmarks of care and affection. The Crown Case Statement represents at paragraph [1] that it was figuratively a father and son relationship, notwithstanding that the recorded conversations are consistent with a more intimate association.
An express representation consistent with intimacy appears in a captured communication from the Accused to the complainant which I shall repeat here for convenience. This was at 5:12pm the day the complainant attended the police, when the accused text messaged the complainant after numerous unanswered calls: "I guess you have no intention of calling so your word really is garage, well no worries, if you cant keep your word then I don't have to keep mine. So you and I will be porn Kings look on Facebook and Instagram and since I have Georgia's phone number she will receive a video from the Novatel, I cant wait for Daisy to see it, I might send one to her mum want the number plus everyr the last chance one on this I phone watched you liked fo".
The fact that the relationship was more intimate in nature than paternal was elicited in cross examination of the complainant and his partner.
During the cross examination of the complainant on the voir dire at page 27 of the transcript from line 32: "Q. Do you say that before this car collision, Robert Sloan had threatened to kill you and your family; is that right? A. Yes. Q. Yet you gave the police, knowing it was untrue, his name as being the driver? A. Yes. Q. That made him angry, didn't it? A. No. He told me to give the name. He didn't want me being thrown in gaol. Q. When did he tell you to go and give them that name? A. I don't remember if it was on the phone or if it was in person. I spoke to the guy every day. I‑‑ Q. You were still seeing him as at August and September 2020; is that right? A. Yes. When I didn't want to. I was forced. Q. You were seeing him on a regular basis, weren't you? A. Forced. Q. Weekly ‑ at least once, if not‑‑ A. Forced. Q. ‑‑twice; is that right? A. Forced. Yes. Q. He didn't force you at all. A. Yes, he did. Q. You and he would go to hotels and spend a night or more. A. Yeah. Where he'd do insanely wrong things to me. Q. Sorry? A. You want to bring that up? Where he would do insanely wrong fucking things to me. Sorry for my language, your Honour. I haven't told the police this, but I have ‑ I have mentioned it a little bit. HIS HONOUR: Just pause, Mr Smith. What I'm going to do is take a morning adjournment now and I'll just discuss with‑‑ WITNESS: He's a paedophile".
I adjourned at that point to allow the witness to compose himself.
At page 37 commencing at line 40: "Q. The conversation continued with Mr Sloan while you were at the house, and you did have coffee, didn't you? A. Yeah, of course. Q. With two sugars? A. Yeah. Do you know what was in it as well as the two sugars? Q. Sorry, I missed that? A. I said do you know what else was in it besides the two sugars and milk? Bet he didn't tell you that one. Q. You're going to tell me what else was in it? A. There was drugs, mate. There was the pills that he takes that miraculously cures his cancer that he claims that he has. Did he tell you that he has cancer? You're trying to say that I'm lying about everything. I'm not lying about anything. I had to say everything to him so I could get out of that garage safely".
At page 42 from line 29: "Q. What were you talking about to him? A. Weed. Marijuana. Something that grows out of the ground. Q. Were you smoking it at his place? A. Yeah, of course. I smoke it everywhere. Q. You had brought some with you; is that right? A. Yeah, of course. What? Today? No, but in ‑ what? Ask the question properly, please. Q. After you smoked some marijuana, did you have another coffee? A. Probably. I don't remember when I eat and drink every single time. I just know when he drugged me in one of the coffees. Are you going to ask me what happened inside the garage?".
At page 58 of the voir dire transcript the following occurred in cross examination of the complainant from line 11: "Q. I put it to you that you've manufactured this situation with Mr Sloan and the idea that he's threatening you and you're frightened of him; isn't that right? A. Sorry? So, making it all up? Q. Yes, you're making it up about him frightening‑‑ A. Talk shit. Q. ‑‑you and threatening you. A. Talk shit. That fucking ‑ that cunt in that courtroom right now knows exactly what he's done to me. You want to plead not guilty? Guilty as fuck. Scars on my ass to prove it, mate. HIS HONOUR: Just pause there, Mr Smith. Mr Crown, do you have any re‑examination? During the cross examination of Daisy McDonagh at page 82 line 3: Q. If you believed that he was in some sort of danger why didn't you ring the police? A. Well, I asked Tyron if he wanted me to call the police and he said no. Q. You knew, didn't you, that Pockets, or Mr Sloan, was going to bring Tyron home, didn't you? A. Yes, because why would he want his little sex toy being locked up in gaol".
As I stated in [22] the quoted passages are drawn directly from the document and italicised, adopting the spelling and grammar as they appear.
There was no cross examination of either witness challenging the propositions advanced by the witnesses in these answers. I commented upon the consistency between this evidence and what I thought to be implicit facts offered in the Crown Case Statement. There were no submissions as to how I should deal with this evidence, or regarding the impact it has upon the assessment of the facts and circumstances in which the alleged offences are said to have evolved. I introduced for consideration the proposition that this might be a relationship with conduct on the part of the accused with what has become known in modern usage as "coercive control".
The sole submission advanced on behalf of the accused is that the Crown case has thus far not been structured with reference to this concept.

The Defence Case

At present there is no refinement of the issues in the forthcoming trial from the accused. Simply put, all is in issue notwithstanding that much of the evidence upon which the Crown would rely is available by reason of intercepted telephone conversations and listening device transcript. Thus, the determination of the Crown's application to rely upon the evidence it identifies as tendency evidence is assessed without any specification of issues that will be left with more precision for the determination of the jury.

The Need for this Judgement

Anticipating that the trial could proceed with my reasons to follow for the decisions I reached upon the voir dire, subject to the remaining argument upon the application by the Crown to rely upon evidence for tendency purposes, on Wednesday, 19 October 2022 I announced my decisions that the Crown would be permitted to adduce the complainant's evidence and that of his partner via audio visual links from a location remote from the court, and that the application to sever Counts Four, Five and Six from the indictment was refused.
This followed discussion upon a further point raised on behalf of the accused in respect of the admissibility of evidence of a firearm allegedly found in the accused's premises, and a discussion upon whether the Crown ought to be permitted to rely upon evidence for tendency.
A jury was selected and I provided them with my opening directions. Before this, the accused's counsel rose to inform me that his client had given instructions to seek the review of my decision that the Crown be permitted to adduce evidence by audio visual link in the Court of Criminal Appeal upon an application pursuant to s 5F Criminal Appeal Act 1912. Discussion followed with my decision that the trial should proceed but with accommodation to the accused to pursue that course including an application for the grant of legal aid to fund that step. Once the jury were instructed they were released for the day and I continued in preparation of this judgement, focussed upon the question to be reviewed, with the balance of the judgement to be provided as soon as practicable thereafter, and with the trial to be suspended pending the question of legal aid.
On Thursday, 20 October 2022 counsel rose to apply for the discharge of the jury because there was to be a review of the merits of the proposed appeal by counsel retained by Legal Aid for that purpose, this would require my judgement to be available, and if there was to be a grant of legal aid to allow the matter to be pursued urgently in the Court of Criminal Appeal. Moreover, the accused had given further instructions to challenge my decision not to sever Counts Four, Five and Six from the indictment.
It was submitted that since there had been no material put before the jury beyond the opening instructions there was little to justify the jury being held pending the resolution of these questions. With the Crown's consent I granted the application and gave my reasons.
It remains that there is urgent need for this judgement and hence it is provided in respect of the two matters.

The Application for Evidence via AVL

The Evidence (Audio and Audio Visual Links) Act 1998 provides in s 5B for the presentation of evidence and submissions by way of audio visual link. Apart from the terms of the section there are no other constraints against this course. The section provides: "(1) Subject to any applicable rules of court, subsection (2A) and section 5BAA, a NSW court may, either on its own motion in, or on the application of a party to, a proceeding before the court, direct that a person (whether or not a party to the proceeding) give evidence or make a submission to the court by audio link or audio visual link from any place within or outside New South Wales, including a place outside Australia, other than the courtroom or other place at which the court is sitting. (2) The court must not make such a direction if - (a) the necessary facilities are unavailable or cannot reasonably be made available, or (b) the court is satisfied that the evidence or submission can more conveniently be given or made in the courtroom or other place at which the court is sitting, or (c) the court is satisfied that the direction would be unfair to any party to the proceeding, or (d) the court is satisfied that the person in respect of whom the direction is sought will not give evidence or make the submission. (2A) A court must not make a direction under this Part in relation to the giving of evidence or making of a submission by audio visual link by any accused detainee in any criminal proceeding in relation to the detainee concerning an offence alleged to have been committed by the detainee. However, this subsection does not prevent the making of such a direction in relation to an accused detainee in any other proceeding to which this Part applies. Note - Part 1B of this Act contains provisions with respect to the appearance of accused detainees who are in custody in criminal proceedings. (3) In a proceeding in which a party opposes the making of a direction for the giving of evidence or making of a submission to the court by audio link or audio visual link from any place within New South Wales other than the courtroom or other place where the court is sitting, the court must not make the direction unless the party making the application satisfies the court that it is in the interests of the administration of justice for the court to do so.
The restrictions by reason of subsection (2A) and s 5BAA do not arise in this case.
I was provided with authority which offers support for side of the argument, but ultimately the question evolves to whether the Crown has satisfied the court that it is in the interests of the administration of justice for the court to make the order. This carries with it the obligation of the court to ensure that the accused has a fair trial, but at the same time the Crown representing the community is entitled to have the court's careful consideration of whether there would be unfairness to it if the orders are not made.
The decision to which I have had access include R v Quami & Ors (AVL) [2015] NSWSC 1711 in which Hamill J carefully reviewed the legislation and authorities before him relevant to this question. His Honour referred to the judgement of Dunford J in R v Ngo; Dinh; Dao [2001] NSWSC 339 which in due course was the subject of appeal: R v Ngo [2003] NSWCCA 82. In the judgement of that court it was said, "[78] The Crown makes the point that while it is a fundamental common law right of an accused to have the Crown case presented in his presence and hearing, a fair trial involves fairness to the Crown as well as to the accused, see McKinney v R (1991) 171 CLR 468 at 488 and R v Lowe (1997) 98 A Crim R 300 at 318 - 319. It was essential that the two witnesses be able to present their evidence to the best of their ability and not in circumstances where they would be too intimidated to do so. The trial judge recognised the risk of unfairness to the appellant and carefully considered all matters of fact and law raised in the application. [106] In our view, his Honour was entitled to conclude, given that the fears of the Ls' were genuinely held, that they would probably not give evidence if required to do so face to face with the appellant in the courtroom. Although sub-para (d) is a pre-condition to the exercise of the power, it involves a discretionary assessment. His Honour saw and heard the evidence on the voir dire and was in a much superior position to this Court to make the necessary assessment. The nature of the subject matter, whether the Ls' genuinely held fears for their safety and that of their family would prevent or impede them from giving adequate evidence in court, is pre-eminently one for a trial judge and this court would not interfere unless the principles enunciated in House v The King (1936) 55 CLR 499 at 504 - 505 were breached. No such breach is apparent. [107] Accordingly, we may proceed to subpara (c), which is critical. There are some tensions between this clause and s 5B(3) but we think that they dissolve if the Court entertaining such a direction, on its own motion or on application, first considers whether the preconditions under s 5B(2) are satisfied. It is only if they are satisfied that the court visits s 5B(3). [108] Making a direction that the evidence of an accusing witness be received by audio visual link external to the courtroom must, by its very nature, involve unfairness to an accused because it deprives him or her of a face-to-face confrontation with the witness. The provision cannot mean any unfairness, however small. The Court must consider the degree and effect of the unfairness. In a criminal trial, the best measure is whether the making of a direction will cause the trial to be an unfair one to the accused. An accused person has the fundamental right to a fair trial. A direction should not be made if it would mean that an accused could not have a fair trial".
Counsel for the accused submitted by way of written submissions amplified with their oral submissions the following points: 1. The accused has a fundamental right to confront the person who would testify against him. 2. The use of an audio-visual facility lessens the effectiveness of challenges to witnesses' credibility contrasted with what might be achieved in the court room. 3. There are physical difficulties with the presentation of evidence to a witness in a remote location, especially when the witness is removed from the court complex entirely. 4. The evidence may be given more conveniently in the court room considering: 1. Technical difficulties that are always a risk. 2. There is no evidence that the witnesses are likely to be adversely affect by the need to travel to the court. 3. There is no health issue for either witness. 4. There is no evidence that the safety of the witnesses cannot be ensured as they move to and from the court room and the court complex. 5. There is no evidence of any harm having befallen either of the witnesses since the accused's arrest. 6. Drawing upon what was said by Hamill J with reference to the earlier authority, it is for the Crown to meet the burden in this application, and it is necessary to consider the position of each witness. 7. There is no evidence that the man Logan Redman with whom the accused was in contact attended the court on either the 4th or 5th October 2022 when the trial was appointed to commence.
The Crown submits that upon the evidence provided there are sound reasons to hold that it is in the interests of the administration of justice for the court to make the orders. The Crown submits that for the purposes of the application it is appropriate to find that the complainant and his partner sincerely hold fears for their safety, if not their lives, from the risk of harm by or at the instance of the accused through the avenues available to him as a significant member of the motorcycle group to which he refers copiously in the captured telephone conversations. The Crown submits that the evidence from which the Crown Case Statement is drawn provides clear and compelling evidence that the accused intimidated the complainant throughout the events leading to the prosecution and had such dislike for the complainant's partner that he expressly threatened her harm, and harm to their child. The Crown concedes that there is some content in the captured conversations from which one might conclude a measure of acquiescence on the part of the complainant, but that is explained with clarity in the responses the complainant gave in his evidence.
I agree with the submissions made by the Crown.
I found the witnesses somewhat emotional in their responses to cross examination, but this is hardly surprising when one considers the content of the abusive and threatening representations by the accused of which there is little doubt captured in recordings, and the history of the relationship to which I referred earlier between the older accused and the much younger complainant that evolved in the prison setting. There was, I found, a strong emotional attachment felt by the accused toward the complainant, which when thwarted led to the accused's emotional responses including his threats of harm. The representations by the accused in the telephone conversations captured when the accused was in contact with the man Redman reveal the personality of one exercising a significant measure of control over other members of the group of which he is a member.
I find the complainant and his partner to be witnesses upon whom one could rely as truthful and accurate in what they had to say. In each case they were prepared to make concessions and acknowledge facts advanced on behalf of the accused, including their circumstances and prior criminal misbehaviour.
I reviewed the telephone conversations between the accused and Redman, beyond those which I have quoted. It was said in submissions on behalf of the accused that these reflect no more than social interaction between immature grown men who wish to belong to motorcycle clubs such as The Heathens, of which the accused is a member apparently with some authority, and that there is nought to fear from the apparent wish to have friends with their club emblem adorning their attire in the body of the court as the accused's trial proceeds. I do not accept this submission. The representations to Redman, with the request that he have other members of the club attend court, all attired with the Heathens emblem could have no purpose other than to intimidate these witnesses to discourage them from giving their evidence. So much is clear from the comments made by the accused and Redman.
As to technical difficulties, it is now the case after years of experience in the court, that a great deal of evidence is adduced in the fashion proposed. This is so the case of sexual offence proceedings, and more recently because of COVID-19 restrictions. The technology has improved to the point where it is my experience that witnesses seen on the screen are presented without significant impediment, if there is any at all, to the opportunity to assess their demeanour. I note that there were some difficulties with the complainant's evidence when the connection dropped out on multiple occasions but each time the connection was restored quickly, and whatever the cause it was resolved the following day when Ms McDonagh gave her evidence without interruption.
I accept that there is a dearth of evidence upon whether the witnesses might be adversely impacted by the need to attend the court, that there is no indication that they have impaired health, and there is no evidence to say that they could not be protected by law enforcement as they move to and from the complex. However, I find that the intention of the accused revealed in the material before me is to exploit the opportunity, if given it, to intimidate and thwart the witnesses in their attempt to give their evidence in the trial. I accept the evidence given that they believe they would be impeded in that task if required to give evidence in the court room in the presence of the accused and were they to attend the court open to the public, that of his associates.
I am satisfied that it is in the interests of the administration of justice to grant the Crown application.
Accordingly I order that the evidence of the complainant Tyron Smith and the evidence of Daisy McDonagh may be adduced by audio visual link from a place within New South Wales remote from the court complex in which the trial is to be conducted.

The Accused's Application to Sever Counts Four, Five and Six from the Indictment

There is power in the court in appropriate circumstances to grant the relief sought by the accused. Relevantly, s 21 Criminal Procedure Act 1986 provides, "(1) ... (2) If of the opinion - (a) that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or (b) that for any other reason it is desirable to direct that an accused person be tried separately for any one or more offences charged in an indictment, the court may order a separate trial of any count or counts of the indictment. (3) …. (4) An order under this section may be made either before trial or at any stage during the trial. (5) … (6) Any power of the court under this section is in addition to and not in derogation of any other power of the court for the same or similar purposes".
The accused's argument begins with reference to s 29 of the Act, which provides, "(1) A court may hear and determine together proceedings related to 2 or more offences alleged to have been committed by the same accused person in any of the following circumstances - (a) the accused person and the prosecutor consent, (b) the offences arise out of the same set of circumstances, (c) the offences form or are part of a series of offences of the same or a similar character. (2) A court may hear and determine together proceedings related to offences alleged to have been committed by 2 or more accused persons in any of the following circumstances - (a) the accused persons and the prosecutor consent, (b) the offences arise out of the same set of circumstances, (c) the offences form or are part of a series of offences of the same or a similar character. (3) Proceedings related to 2 or more offences or 2 or more accused persons may not be heard together if the court is of the opinion that the matters ought to be heard and determined separately in the interests of justice".
Paragraph (c), identical in each of sub sections (1) and (2), is advanced with the comment that there are such differences between the conduct alleged in the prosecution of Counts One, Two and Three, and that underpinning Counts Four, Five and Six, that the latter three ought to be severed from the indictment to be prosecuted separately. The differences noted are: 1. Counts One, Two and Three are alleged in respect of a domestic relationship between the accused and the complainant, the repayment of a debt the complainant owed the accused, the conduct alleged was verbal communications and Count Three involves the alleged presentation of a pistol. 2. Counts Four and Five are brought upon written material alleged to have been brought into existence some months later, meant to exhort the complainant to be truthful, and the cell with the writings on the wall upon which the Crown relies was occupied by the accused and another person. 3. Count Six, included ex officio in the indictment, relying upon the telephone conversations between the accused and the man Redman which if published to the jury will expose that the accused was in gaol at the time and cause irreparable prejudice to the accused in his trial.
It is said that the accused would be prejudiced by the circumstances in which he is in gaol awaiting trial, the nature of the material on the cell wall, there is no probative value in the assessment of the issues in the final three counts from the firearms offence charged in Count Three, the evidence relevant to the final three counts is not admissible in the assessment of Counts One, Two and Three, the authorship of the writings on the cell wall is in contest, the evidence relevant to the final three counts has the risk of suggesting propensity to commit an offence or offences, and do direction by the trial judge could be adequate to remedy these mischiefs.
The Crown submissions were couched in terms of argument for the admission of evidence of tendency purposes about which I presently have reservation, and which is yet to be addressed by the Crown. Had the evidence been permitted for this purpose the argument would have necessarily involved concurrent consideration of the severance of the final three counts because of their link to the first three counts. Since the use of evidence for tendency purposes is not part of this judgement, I have considered this question with reference to the abovementioned provisions and the nature of the case anticipated from the Crown in respect of each count with consideration of the tendency evidence point.
Ultimately the Crown submission is that the offences are inextricably bound and must be prosecuted in the one indictment.
I am not of the opinion that these charges should, in the interests of justice, be heard and determined separately; that is to say, that the final three counts in the indictment ought to be severed.
I am satisfied that all the offences arise from the same set of circumstances beginning with the relationship that was formed between the accused and the complainant as I discuss earlier in these reasons beneath the heading, "The Relationship Between the Accused and the Complainant". The decision by the complainant to withdraw from the relationship was met with expressions of hostility by the accused, and conduct between 29 October 2020 and 4 November 2020 asserted by the Crown to amount to stalking and intimidation founding Count One, the detention of the complainant on 1 November 2020 founding Count Two, the use of an item represented by conduct to be a pistol on that date with intent to intimidate during the alleged detention founding Court Three, threats of injury to the complainant between 26 February 2021 and 10 May 2021 to influence him against attending a witness in the proceedings for Counts One, Two and Three, this conduct founding Count Four, conduct between 26 February 2021 and 18 May 2021 for the same purpose founding Count Five, and communications with his colleague Redman to have him attend court in the course of the trial on these charges to influence the complainant and his partner in their evidence founding Count Six.
The sequence of misconduct alleged in respect of these charges follows the thread beginning with the formation of the relationship, the complainant's desire to extricate from it, his efforts to do so met with the accused's hostile response and threats, and efforts thereafter thwart the complainant and his partner in the task of giving evidence in the proceedings.
The distinctions drawn by the accused's submission between the conduct founding Counts One, Two and Three, then Counts Four and Five, and finally Count Six are not such as to require separate trials.
It is unfortunate that the accused is in custody and will remain there during the trial, a fact which is bound to be exposed to the jury. However it is my experience of juries that with appropriate instructions to them in clear and unambiguous terms they meet their obligations as judicial officers for the determination of questions of fact in trials without allowing prejudice to infect their deliberations. I am not persuaded that regardless of the terms of the directions in this context, the accused cannot have a fair trial upon this combination of charges brought upon the evolving circumstances which the evidence is expected to address.
I am not persuaded that the evidence of the conduct founding Counts Four, Five and Six would not be admissible in the prosecution of the first three counts, and nor am I persuaded that the evidence of conduct founding the first three counts would not be admissible in the prosecution of Counts Four, Five and Six. In my opinion the evolving relationship and the responses of the accused to the complainant's decision to withdraw from it provide at least evidence of context in which to assess each of the allegations of misconduct brought against the accused.
For these reasons the application to sever Counts Four, Five and Six from the current indictment is refused.

The Remaining Matters for Decision

As indicated earlier the question of tendency is yet to be argued and resolved. There is also outstanding an application by the accused to exclude evidence of the pistol found by police in the accused's home. The Crown concedes that it cannot be shown to be the weapon that the complainant asserts he saw when in the motor vehicle with the accused, and so a question arises as to the probative value of that item of evidence in the assessment of facts in issue in the trial. Further submissions are anticipated regarding that question.

Amendments 24 October 2022 - Changed category type to Procedural Rulings 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: 20 June 2024

R v Sloan

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (20 paragraphs)

Parties

Cases Cited (5)