R v Stott & Ors

1 Kylie Stott (now aged 40), Dimitri D'Elio (now aged 27) and Danny Clarke (now aged 41) are charged with the kidnapping and murder[1] of Charlie Gander (aged 19) and the arson[2] of a Ford Territory belonging to Regan Kilgannon. Their joint trial is due to commence with empanelment of a jury tomorrow.

2 In short, the Crown alleges that, on the night of 23 December 2022 and into the next morning, the three accused kidnapped Mr Gander from a holiday park in Shepparton; that, at some point thereafter, they murdered him by unknown means and at an unknown location around the Shepparton area; and that, at Bunbartha, with Mr Gander's body inside the vehicle, they burned the Ford Territory he had been driving the previous evening. The alleged motive for the kidnapping and murder was a belief that Mr Gander had implicated Tyson May to police in a crime. The alleged motive for the burning of the Territory with Mr Gander's body inside it was to destroy evidence of the kidnapping and murder.

3 Based on the proposed medical evidence, it is alleged that, while Mr Gander was not killed by the fire, the cause of his death is not ascertainable. The most that can be said is that a knife may have been used to harm him at some point. This is based on the discovery, six days later, wrapped in a tea towel under a seat in Mr D'Elio's Holden Caprice, a knife on which Mr Gander's blood and the DNA of each accused was detected.

4 The Crown puts the case on each charge against each accused on the basis of involvement in the offending by way of agreement to commit the offence and, in the alternative, on the basis that he or she perpetrated each offence.[3]

5 Last week and on the first two days of this week, I received written and oral submissions from all parties on numerous pre-trial matters, all of which concern the admissibility and/or permissible use of various pieces of evidence the Crown proposes to lead at trial.

6 What follows is a summary of each of my rulings (and the several "sub-rulings" within some of those rulings). As I have indicated previously, and with the concurrence of counsel, because of time constraints, these reasons necessarily are brief and incomplete. In several instances, I shall not refer to the detail of either the impugned evidence, the surrounding evidence, or counsel's submissions, nor shall I engage in detailed analysis. That said, as will be seen, the reasons for some rulings are reasonably extensive, if not complete, whereas others are very brief. As I have said to counsel, if more detailed reasons are required for appellate purposes, or even for posterity, I shall consider any such request at that time.

7 Further, given that the trial is about to commence before a jury, I shall not publish these reasons on Austlii. However, at the conclusion of my delivery of the reasons, and subject to correction of any errors I might notice during the reading, I will hand down copies of these written reasons to counsel and instructing solicitors for ease of reference, and so that the parties are clear about what has been ruled in or out of evidence and the issues left in abeyance.

8 My first ruling (which is really a series of rulings) concerns Ms Stott's police interview conducted on the day of her arrest on 30 December 2022.

9 Mr Sala, who appears for Ms Stott, submitted that the interview should be excluded from evidence pursuant to the unfairness discretion in s 90 of the Evidence Act 2008 (Vic). He relied on Ms Stott's obvious tiredness, the pain she was suffering from a toothache, and the several hours she spent in custody by the time the interview was completed. As for that period, the transcript records that the interview commenced at 8:12 a.m. and was suspended at 8:23 a.m.; that it was recommenced at 10:06 a.m. and was suspended at 10:07 a.m.; that it was recommenced at 1:00 p.m. and suspended at 1:35 p.m.; and that it was recommenced at 2:08 p.m. and concluded at 2:55 p.m.

10 Mr Sala also relied on the undisputed fact that Ms Stott had twice requested to speak to a solicitor - once when first arrested, and a second time at the start of the interview - but that it was not until after the first part of the interview was completed that her request was honoured.[4]

11 Mr Gibson KC, who appears with Ms Moran and Ms Sargent for the Crown, submitted that, by saying, "I really don't care" or similar when asked, Ms Stott agreed to carry on with the first part of the interview without speaking to a solicitor. He pointed out, correctly, that she subsequently spoke to a solicitor or solicitors between the first and second and the second and third parts of the interview. He submitted that, in all the circumstances, and notwithstanding her apparent tiredness and toothache, there was no unfairness in the sense required by s 90.

12 I accept that Ms Stott acquiesced in carrying on with the first part of the interview. However, I also accept Mr Sala's submission that, in that first part, the police went well beyond the perfunctory questions they foreshadowed when asking Ms Stott whether she was prepared to carry on and instead went on to ask questions about her movements at times relevant to the allegations, which she answered. In these circumstances, and given also her tiredness and toothache, I am satisfied that it would be unfair to allow the first part of the interview to be led in evidence. Accordingly, the first part of the interview should be excluded.

13 However, while I accept that, thereafter, her tiredness persisted, that her toothache appeared to worsen later on, and while the interview continued in fits and starts and ultimately spanned a period of nearly seven hours, it is also clear that, in the parts of the interview subsequent to the first part, which, as I have said, occurred after she had received legal advice from a solicitor or solicitors, Ms Stott was conscious of exercising her right to speak or not. For example, unlike in the first part of the interview, in the subsequent parts, she exercised her right to make no comment on occasions. While there were also occasions on which she expressed frustration that her solicitor was not present at that particular moment, and while the circumstances of her interrogation were far from ideal - indeed, I expect that some police would have declined to interview her until she had had some rest and her pain had abated - in all the circumstances that obtained here, I am not satisfied that those difficulties would render it unfair to lead the balance of the interview after the first part, provided the "no comment" answers are removed.

Video of balance of interview should not be excluded

14 Mr Sala also submitted that, because of her dishevelled presentation, it would be unfair to play the video of the interview, and that, if any part of the interview were to be admitted into evidence, it should be confined to the playing of the audio. However, I am not satisfied that there would be any unfairness to Ms Stott in playing the video. As Mr Gibson submitted, seeing the video may well give the jury a better understanding of the audio and a better chance of fairly assessing Ms Stott's answers to the police questions. Indeed, it might be said, in fairness to her, it would also give jury a better opportunity of assessing her tiredness, and her toothache, which are both plain to see on the video but might not be so apparent on the audio alone.

Ruling 2: Secretly recorded conversation between Mr D'Elio and covert operative

15 My second series of rulings concern the challenge to the admissibility of a secretly audio-recorded conversation between a covert operative and Mr D'Elio while in a police cell following his arrest on 30 December 2022, as well as a silent video of that conversation, and a transcript of it.

16 The background to the impugned recording is this. At around 7:00 a.m. and following, police had conducted a so-called "field interview" with Mr D'Elio immediately after his arrest, during which he responded to questions. That interview was also secretly audio-recorded, but Mr D'Elio was cautioned and advised of his rights before it commenced.[5] He said he wished to speak to a friend, but police deferred that opportunity until he was taken back to the police station. When back at the station, Mr D'Elio was content to speak to his friend after the formal interview was conducted, which occurred later, between 10:40 a.m. and 11:55 a.m.

17 Before the formal interview, Mr D'Elio was placed in a cell, where he tried to sleep on a bench with a blanket. According to the undercover operative, at around 8:23 a.m., he was then inserted into the same cell.

18 After introductions, what followed was, in my view, a thoroughly distasteful performance by the undercover operative. He played the role of a callous criminal just arrested. Not only did he speak in the argot that he apparently assumed to be appropriate to the situation, but his performance even descended into laughing about the fate of the deceased and, thereby, encouraging Mr D'Elio to do so as well.

19 In my view, this was disgraceful behaviour that demeaned not only the undercover operative in particular and the police in general but, by extension, the rest of us too. That said, both the High Court and the Court of Appeal have sanctioned the admissibility of evidence gained by undercover operatives engaging in deceitful trickery more or less equivalent to the behaviour engaged in in the present case.[6]

20 In any event, this was not the basis urged for exclusion of the recording, albeit the bravado-inducing nature of the undercover operative's questioning did form part of the attack on its admissibility. Indeed, as I understood him, Mr Kounnas, who appeared with Ms Strugnell for Mr D'Elio, accepted the thrust of Mr Gibson's submission that he was constrained (by the authorities to which I alluded a moment ago) from submitting that the protections to accused persons in custody found in s 464 of the Crimes Act 1958 (Vic) and following applied to the covert operative's role because he was not regarded as an "investigating official" within the meaning of that term in the Act,[7] and perhaps also because, during the earlier field interview, he had been responsive to police questions.

21 Instead, Mr Kounnas submitted that the principal reasons for exclusion were matters falling within the unfairness discretion and/or because the probative value of evidence was outweighed by danger of unfair prejudice to Mr D'Elio. Included in those submissions were that, because the quality of the audio recording was so poor in places, because of the number and location of wholly inaudible parts, and/or because of the leading and bravado-inducing nature of the covert operative's questions and banter, the alleged admissions obtained in consequence were deprived of proper context so as to render it unfair to Mr D'Elio to admit the recording. He also submitted that these same factors, as well as the fact that some things said were inconsistent with other evidence (for example, that Mr Gander was sitting in the back seat when, in fact, he was found in the driver's seat of the Territory) caused the probative value of evidence to be outweighed by the danger of unfair prejudice to Mr D'Elio.

22 Mr Gibson submitted that the audibility of the recording, and the context in which the impugned parts of the conversation occurred, were both sufficiently clear so as not to render it unfair to Mr D'Elio to rely on those parts as evidence against him. Likewise, he submitted that neither the limitations of the recording nor the nature of the covert operative's behaviour and questioning, nor those things in combination, were such as to cause the probative value of the evidence to be outweighed by the danger of unfair prejudice to Mr D'Elio.

The audio recording should not be excluded pursuant to s 90 or s 137 of the Evidence Act

23 I listened to the recording in toto, as well as the nine particular parts on which the Crown seek to rely, both in Court and in chambers. In my view, while there are plainly several inaudible or barely audible parts, the recording, in the parts relied on by the Crown, is sufficiently clear for a jury to make out what is alleged. Further, while I would be more comfortable if there were no, or at least fewer, inaudible parts, in the end, I am satisfied that all of the nine particular utterances on which the Crown relies are surrounded or preceded by sufficiently audible remarks so as to allow a jury to make an adequate assessment of the context in which the impugned utterances were made.

24 Moreover, while I also accept that the covert operative's questioning and utterances may well have been bravado-inducing, particularly in the circumstances that obtained here - namely, where Mr D'Elio, a relative novice in the criminal justice system (whose only prior appearance concerns a minor driving offence for which he received no conviction), had been arrested for murder and had found himself in a police cell with a person who, grotesquely, portrayed himself as a heavy, callous crook who was prepared to laugh about the horrible demise of another human being - I am not satisfied that those factors give rise to unfairness in the sense required by s 90 of the Evidence Act. Nor am I persuaded that any of the nine alleged admissions are so robbed of their probative value or so redolent of the danger of unfair prejudice to Mr D'Elio that they must be excluded pursuant to s 137 of the Evidence Act.

25 In considering these issues, it is also relevant that the jury will be given directions on these alleged admissions to the effect that they cannot use any of the particular admissions alleged unless, first, they are satisfied that what is alleged by the Crown vis-à-vis the particular admission can in fact be heard and, second, that Mr D'Elio intended to make a truthful admission, and was not, for example, just going along with the bravado of the undercover operative. Thus, if the jury is not satisfied that they can hear what the Crown says can be heard or if they are not satisfied that the alleged admission in question was intended to be truthful, the jury will understand that they must put the evidence aside in the case against Mr D'Elio.

The audio recording should not be excluded pursuant to s 135 of the Evidence Act

26 While I did not understand this next provision to be relied on, I note that I have also considered Mr Kounnas's submissions through the prism of s 135 of the Evidence Act.[8] Section 135 gives the Court a discretion to refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might (a) be unfairly prejudicial to a party, (b) be misleading or confusing or (d) unnecessarily demean the deceased in a criminal proceeding. (Paragraph (c) seems to be irrelevant to this case.)

27 For the reasons I have given thus far, and consistently with my view of s 137, which is more favourable to an accused than is s 135(a), I am not satisfied that the probative value of the alleged admissions to the undercover operative is substantially outweighed by the danger that that evidence might be unfairly prejudicial to Mr D'Elio. Nor am I satisfied, pursuant to s 135(b), that the evidence might be misleading or confusing to such an extent as to outweigh, and substantially so, its probative value.

28 However, in light of s 135(d), I am troubled particularly about what the Crown described as item 8 of the recording. The Crown alleges that, in item 8, Mr D'Elio agreed in the notion that he had done a "service to the fuckin' [community]" because the deceased had "put cunts in over there [in Benalla] as well". It was the undercover who, disgracefully in my view, introduced the idea that Mr D'Elio had "done everyone a favour" and then, to make things worse, cackled like a hyena at his own remark. Immediately following this, Mr D'Elio joined in the laughter and then made the impugned remark about "service to the fuckin'". He did not actually utter the word "community". Instead, it was the undercover operative, it seems, who couldn't help but chime in again with, "Yeah, serve the community, man, fuckin' hell," but the Crown says it is to be inferred that that is what Mr D'Elio meant.

29 I should add that the undercover operative engaged in other callous instances of laughter at the deceased's misfortune (for example, because he was "crying, begging [and asking] for a phone call and all") during what the Crown described as item 9, which seems also to have provoked laughter in Mr D'Elio.

30 Now, I think it can fairly be said that those parts of "the evidence ... might ... unnecessarily demean the deceased in a criminal proceeding" within the meaning of s 135(d). If that is so, then the question becomes whether the probative value of the evidence is substantially outweighed by the danger that it might have this effect.

31 In my opinion, however, albeit I do so with some reluctance, I conclude that the answer must be no. This is because I consider the probative value of the evidence to be so high - for these parts of the evidence are capable of being treated by the jury as admissions by Mr D'Elio to the kidnapping and killing (and perhaps even murder) of Mr Gander - whereas, as distasteful as it is, in my judgment, the unnecessarily demeaning feature of the evidence, which comes at least partly from the fact that both men are laughing at the deceased's fate, does not substantially outweigh that high probative value.

32 Thus, I also decline to exclude any part of the recorded conversation, including those parts of it just mentioned, pursuant to the discretion in s 135 of the Evidence Act.

Sounds of laughter should be excised, if possible

33 However, in fairness to Mr D'Elio, I would urge the Crown to attempt to remove the sound of laughter from the recording while leaving in the operative words in the conversation, if that can be done. If the laughter cannot be removed from the recording, or if it cannot be removed without also removing the operative words so as to denude the utterances of meaning, it might be that the parties could agree that those parts of the recording not be played in evidence but that, instead, an agreed transcript of those parts of the recording could be given to the jury so as to remove the illicit prejudice that arises from the laughter.

34 I should also add that, consistent with the discussion had during submissions, there are parts of the recording which seem to be meaningless drivel from the undercover operative. These parts of the conversation have no probative value at all, and they should be removed by agreement between the parties. I trust that will be done.

35 Finally, while I have touched on a couple of the individual items of evidence the Crown wish to rely on from the recording, I should add here that, without discussing any of the other arguments put to and fro by Mr Kounnas and Ms Moran in respect of each item, I consider each item to be relevant and potentially probative in that it is capable of being found to be an admission of one kind or another in the sense that each is a representation by Mr D'Elio adverse to his interest in the outcome of the proceeding.

Determination of issues admissions may prove deferred to JDA phase of trial

36 That said, I shall defer to the discussion to be had pursuant to the Jury Directions Act 2015 (Vic) ("the JDA") prior to final addresses the determination of precisely what each of those alleged admissions may go to prove.

The transcript should not be excluded, but it should be edited

37 That brings me to another topic. Mr Kounnas submitted that, if the recording of the conversation were to be admitted into evidence, the jury should not be given the transcript of that recording. This is because to do so, he submitted, would risk the jury being unduly influenced by the transcript in their decisions on the disputed parts of the recording.

38 Mr Gibson submitted that this would be unfair to both the jury and the Crown, as this would be the only piece of oral evidence in the trial unaccompanied by an aide memoire in the form of transcript. He submitted that, given the standard directions, the jury would understand that they are to determine for themselves what they can hear, and not to treat the transcript as evidence but as merely an aide memoire. Further, without an aid of this kind, he submitted, the jury may unduly focus on trying to understand portions of the recording that cannot be understood, thus causing confusion and distracting them from the parts that can be understood.

39 I accept that there is a risk that a transcript might unduly influence the jury in their decisions on disputed parts of the recording, even if directed (conventionally) that the transcript is not the evidence but only an aide memoire, and that what can be heard by them on the recording is the evidence. It is common human experience - or at least it is my experience - that song lyrics that were once misheard or indecipherable can be heard correctly once given the lyrics in written form or told from an authoritative source what they really say. The key difference here, of course, is that, in respect of some parts of the recording, there is no agreement as to the words uttered, which is the very thing at issue.

40 However, I am persuaded that it will be appropriate for the jury to have a transcript, in at least some form, as an aide memoire. I am satisfied that conventional directions are capable of guarding against the jury being unduly influenced as to what can be heard by reading the transcript.

41 Further, while it will be a matter that the parties should discuss among themselves in the first instance, it may be that a version of the transcript can be created that shows the disputed parts,[9] as well as the agreed parts, of what is said to be uttered. While that would not completely cure the vice inherent in giving the jury a transcript as an aide memoire, it would at least more clearly alert them to the matters in dispute.

The brief excerpt from the silent video should not be excluded

42 Finally, Mr Kounnas also objected to the playing to the jury of a soundless video recording of Mr D'Elio and the undercover operative while conversing in the cell. His concern is that alleged, but unclear, nods of assent or disagreement or other purported signals would be sought to be relied on by the Crown when it would be unsafe to do so.

43 However, as I understood Mr Gibson, the only part of the video the Crown seeks to play is a brief period showing the movement of Mr D'Elio towards the cell door when it is said that Mr Clarke was moved past from a nearby cell and that this coincided with his alleged assent to the covert operative's question, "Is that your boy?"

44 I do not consider there is any unfairness to Mr D'Elio in playing only that very brief part of the video for the purpose identified by Mr Gibson. Accordingly, that part of the video will be admitted for that limited purpose.

Ruling 3: Arunta calls between or concerning Ms Stott and others

45 My third series of rulings concern some Arunta calls between Ms Stott and others, and one call between two others referring to things said by Ms Stott.

46 I shall deal with these matters more briefly than the previous two sets of rulings.

Arunta call from Tyson May to Ms Stott at 1:22 p.m. on 24 December 2022

47 At 1:22 p.m. on 24 December 2022, which was about three hours and 20 minutes after the Territory was discovered on fire at Bunbartha, Tyson May rang Ms Stott from prison. The recording of this call was described as Exhibit 129 (of the police brief) during argument.

48 During the call, Mr May asked, "Charlie go missing, yeah?" to which Ms Stott responded, "Don't know what you're talking about." Mr Gibson's submission was that the timing, tone and circumstances of that utterance are directly at odds with the literal meaning of the words. He indicated that, if the call were admitted into evidence, he would invite the jury to view those words as a code between the pair. This, it was said, is supported by Mr May's response, "Yeah sweet, love ya," which indicated he understood what she was saying. Further, Mr Gibson submitted that, if he believed her words were genuine, he would be expected to have commented further.

49 Ms Stott went on to say, "Love ya, I got ya," and, in Mr Gibson's submission, despite Mr May trying to move the conversation on, she reiterated "Told you I got ya", "I told you I ...", "I told you sugar mamma's got ya," and "I said, I told you sugar mamma's got ya." In his submission, far from being amorphous and unclear, it is plain that Ms Stott was intent on letting Mr May know that she has got his back and is responsible for what he has heard about Mr Gander having gone missing.

50 In Mr Gibson's submission, further support for the contention that Ms Stott and Mr May were speaking in code during this conversation can be taken from Mr May's phone call with his brother Brandon May about one-and-a-half hours later, at 2:58 p.m. (This call was described as Exhibit 130.) Tyson May advised Brandon May that he spoke to "Mooks" (viz, Ms Stott); and in relation to Charlie going missing, he said, "She's seen him," "she said no comment but that's it," and then, "I dunno what happened. She wouldn't say no more."

51 Mr Sala submitted that the impugned conversation between Ms Stott and Tyson May was so amorphous, unclear and difficult to follow that it should be excluded from evidence. In his submission, several topics appear to be discussed, and it is simply not open to say that Ms Stott's utterances were a code or, in the case of the several "I got ya" remarks, that they were responsive to the topic of Mr Gander's going missing and not some other topic.

The conversation (in Exhibit 129) must be excluded

52 In my view, Mr Sala's submissions should be preferred. I am persuaded that, when the whole of the conversation between Tyson May and Ms Stott is examined, it can be seen that it is not open to a jury to find that the pair were speaking in code or that the "I got ya" remarks related to the topic of Mr Gander's going missing. Instead, no jury acting rationally could exclude the reasonable possibility that those latter remarks related to Mr May's request that Ms Stott assist in moving some rims, his request that she give Hayden Dalton a kick-start, the asserted fact that someone named Glen is talking to Mr May, or perhaps another thing (or other things) altogether.

53 Thus, the conversation could not form any basis for an alleged piece of incriminating conduct by Ms Stott, an admission or an implied admission by her, or a piece of circumstantial evidence going to any of those concepts or to any other issue in the trial. Accordingly, it must be excluded.

The conversation between the May brothers (Exhibit 130) must also be excluded

54 Further, the conversation between Tyson May and Brandon May is rank hearsay in Ms Stott's trial and must be excluded on that basis alone.[10] In addition, it must be excluded on the basis that it contains opinion evidence about what Ms Stott was thought to be saying or thinking during the call between Tyson May and her.[11]

The further conversation between Mr May and Ms Stott (Exhibit 131) must be excluded too

55 Finally, in argument, there was also discussion about a call between Tyson May and Ms Stott the next day, 25 December 2022. During this call, Mr May asked, "Hey, who torched Charlie's car?"; then asserted that "Charlie's car had been torched with his body dead in it"; and then asked, "Do you know anything?" To the latter question, Ms Stott answered, "No." Further, when Mr May said, "Apparently he's dead in it," Ms Stott said, "Fuck" and, "That's not good." This call was described as Exhibit 131 in argument.

56 Mr Gibson submitted that this call was staged between the pair so as to tend to cover up Ms Stott's knowledge of and involvement in the charged events.

57 Mr Sala indicated that he had understood that this call was intended to be led out of fairness to Ms Stott because, on the face of it, she makes denials of any relevant knowledge (and therefore of involvement).

58 In my view, whatever may have been the Crown's intention, the recording cannot be admitted for the purpose of proving that it was a staged call designed to cover up Ms Stott's alleged knowledge of and involvement in the charged events. There are three reasons:

a) First, in my opinion, once the previous call between Mr May and Ms Stott and the one between the May brothers are excluded from evidence, as they have been, there can be no basis for mounting the argument that this later call was staged.

b) Second, once that argument is denied, the most that the Crown could say is that, based on other evidence that she did know about or was involved in the alleged offending, Ms Stott must be lying to Mr May during this second call. But that, of course, would be wholly inconsistent with Crown's own submission about the so-called staged call.

c) Third, that would leave only an exculpatory purpose for leading the call, yet, as I understood him, Mr Sala does not wish to have it led in evidence at all, whether for that purpose or any other.

59 In those circumstances, I am satisfied that this call (in Exhibit 131) should also be excluded from evidence.

Arunta call between Ms Stott and Brandon May on 25 January 2023

60 The next call in issue occurred on 25 January 2023, when Ms Stott, ringing from prison, told Brandon May, inter alia, "Unless I can find an alibi for that day ... Like that night when I decided to have a little nap ... I'm fucked ... Which is cooked".

61 While this evidence is mentioned in the Crown's amended (and most recent) summary of prosecution opening (dated 9 May 2025), it did not feature in the written submissions, as they were filed on earlier occasions. This is because the call had only been noticed by those acting for the Crown late in the piece when searching Ms Stott's Arunta calls for another purpose.

62 In oral argument, Mr Gibson submitted that, in context, Ms Stott's remarks imply an acknowledgment of her involvement in the alleged offending.

63 Mr Sala submitted that a jury could not rationally exclude the reasonable possibility that, in those remarks, Ms Stott was merely commenting on her understanding of legal advice she had received from her solicitor, rather than impliedly admitting involvement in the alleged offending.

64 As I understood him, Mr Sala picked up on my expressed concern that, when the remarks preceding the impugned remarks are read in full, it is arguably apparent that Ms Stott may be accepting some involvement but that she is critical of Mr D'Elio for possibly implicating her in the killing of Mr Gander when she was not in fact responsible. Hence her expressed belief in the need for an alibi.

65 As I indicated in the course of argument, I have vacillated on the admissibility of this particular Arunta call. In the end, while I am of the view that the better interpretation of Ms Stott's remarks is that a jury should not exclude an explanation along the lines of Mr Sala's submission, the point I raised, or perhaps a combination of the two, I think it is open to a jury to take a different view and accept instead the Crown's interpretation of the impugned remarks. In other words, I accept that the evidence is admissible to establish that, in context, Ms Stott's remarks imply an acknowledgment of her involvement in the alleged offending, at least in some respect.

Defer consideration of scope of admission at JDA phase

66 That said, as to how far precisely the alleged implied admission goes, and to which charges or elements thereof, are matters that should be debated at the conclusion of the evidence during the discussions to be had pursuant to the JDA.

Arunta call between Ms Stott and Brandon May on 4 February 2023

67 The next Arunta call of relevance was made by Ms Stott, from prison, to Brandon May on 4 February 2023. This too was one of the calls that was added later to the amended summary of prosecution opening but was not the subject of written submissions.

68 During the call, Brandon May indicated that he believed the charge against Tyson May arising out of his being implicated by Mr Gander had been dropped. Ms Stott responded with, "I bet it has," then by saying three times, "I knew they'd drop it," and then with, "That ... I might have a little something to do with that one."

69 Mr Gibson's submission was that this amounted to an implied admission to involvement in the offending.

70 In the end, Mr Sala did not dispute the admissibility of this call.

71 In my view, he was correct to make that concession. For I am persuaded that Ms Stott's remarks are capable of being viewed by the jury as an implied admission to involvement in the offending, at least in some respect.

Defer consideration of scope of admission at JDA phase

72 However, like the last call, as to how far precisely the alleged implied admission goes, and to which charges or which elements of those charges, are matters that should be debated at the conclusion of the evidence during the discussions to be had pursuant to the JDA.

73 My fourth series of rulings concern the admissibility and/or use of miscellaneous pieces of evidence as evidence of incriminating conduct, admissions or implied admissions, or as circumstantial evidence going to one or more of the alleged offences.

74 While almost all of these pieces of evidence are mentioned in the Crown's further amended notice of incriminating conduct (dated 9 May 2025) ("the IC notice"), it was made clear by Mr Gibson and Ms Moran that, in some cases, the evidence was not relied on as incriminating conduct but only as an admission or an implied admission, or as circumstantial evidence.

75 I shall deal with these matters even more briefly than I did in the last set of rulings.

Destruction of car and deceased's body by fire

76 In paragraph 2(a) of the IC notice, as against each accused, the Crown seeks to rely on the burning of the Territory and the deceased's body as portraying an awareness in them that they had murdered the deceased and a desire to avoid detection for that offending.

Admissibility as evidence of incriminating conduct not disputed

77 As I understood it, none of the accused disputed that the evidence was capable of being used in this way. That was an appropriate concession to make.

Defer determination of precise ways evidence may be used until JDA phase

78 However, again, I shall defer until the JDA phase of the case my determination of the precise ways in which this evidence may be used as incriminating conduct, and as to which charge or charges, or elements thereof, it may be capable of going.

Mr Clarke's text to his partner that "we are gonna need showers"

79 In paragraph 2(b) of the IC notice, it is alleged that, at 9:57 a.m. on 24 December 2022, only shortly after the Territory was set on fire, Mr Clarke sent a message to his girlfriend Rebecca Triffett saying, "Babi we are not far away I miss you love [heart emoji] we are gunna need showers etc".

80 In my view, the evidence is admissible against Mr Clarke as an admission that he believed that he and his co-accused needed showers. This, in turn, may amount to an implied admission that the need for showers arose from a belief that their bodies contained forensic evidence of at least arson, and perhaps kidnapping and murder, which in turn may be circumstantial evidence of in proof of all three charges.

Defer determination of precise ways evidence may be used until JDA phase

81 However, again, I shall defer until the JDA phase of the case my determination of the precise ways in which this evidence may be used, including whether it may be used as evidence of incriminating conduct, and as to which charge or charges, or elements thereof, it may be capable of going.

Section 87 of the Evidence Act

82 Further, in reliance on s 87(1)(c) of the Evidence Act,[12] Ms Moran submitted that the "we are gonna need showers" evidence is capable of being taken to be an admission by Ms Stott and Mr D'Elio. This, it was submitted, was on the basis that it is reasonably open to find that Mr Clarke's representation in the text was made by him in furtherance of a common purpose he had with his co-accused.

83 However, I understood that all counsel agreed that my determination of whether s 87 could be applied in this way so as to render the evidence admissible against Ms Stott and Mr D'Elio should await the JDA phase of the trial. That is what I will do.

84 In paragraph 2(c) of the IC notice, it is alleged that, at 10:00 a.m. on 24 December 2022, after departing the scene of the car fire, the three accused arrived in Nathalia. Ms Stott and Mr D'Elio entered the IGA, and they bought a number of items, including baby wipes and medicated soap.

85 While I heard and have had regard to the several submissions made against admissibility, I am persuaded that the evidence of the purchase of the baby wipes and medicated soap is admissible against Ms Stott and Mr D'Elio as evidence that each believed he or she needed cleaning. This, in turn, may amount to an implied admission that the need for cleaning arose from a belief that their bodies may have contained forensic evidence of at least arson, and perhaps kidnapping and murder, which in turn may be circumstantial evidence of in proof of all three charges.

Defer determination of precise ways evidence may be used until JDA phase

86 However, again, I shall defer until the JDA phase of the case my determination of the precise ways in which this evidence may be used, including whether it may be used as evidence of incriminating conduct, and as to which charge or charges, or elements thereof, it may be capable of going.

87 In addition, Mr Gibson submitted that evidence of all of the other items purchased at the same time (which included food, drinks, cigarettes and other things) was admissible as circumstantial evidence relevant to the relationship among the accused, which in turn was capable of rebutting any suggestion that Ms Stott and Mr D'Elio had not been acting pursuant to an agreement earlier when committing the offences alleged.

88 While I heard and have taken account of the submissions against admissibility, I am persuaded that the evidence of the purchase of these other items is admissible against Ms Stott and Mr D'Elio for the purposes urged by Mr Gibson. That said, it strikes me as very tenuous and weak evidence of those matters.

Mr D'Elio's Google search for "car wash near me"

89 In paragraph 2(d) of the IC notice, it is alleged that, at 10:18 a.m. on 24 December 2022, so a short time after the Territory containing the deceased's body had been ignited, Mr D'Elio conducted the following Google searches on his mobile phone: "car wash near me"; "Numurkah Car Wash Numurkah VIC"; and "car wash near me".

90 Ms Strugnell submitted, among other things, that this evidence lacked probative value in circumstances where presence at the scene of the burning of the car was not disputed by Mr D'Elio. She also pointed out that, when seized, the car contained the bloodied knife I spoke of earlier, which suggested the car had not been cleaned (internally) at all. Further, while it was not clear to me in the end, there did not seem to be any evidence that the exterior of the car had been cleaned either.

91 While the matters raised by Ms Strugnell arguably go to the probative value of the evidence, which may be the subject of submissions to the jury, I do not consider that they exclude its admissibility.

92 In the end, I am persuaded that this evidence is admissible against Mr D'Elio, as evidence that he believed that his Holden Caprice needed cleaning. This, in turn, may amount to an implied admission stemming from a belief that the need for cleaning arose from the possibility that his car contained forensic evidence of at least arson, and perhaps kidnapping and murder, which in turn may be circumstantial evidence in proof of all three charges.

Defer determination of precise ways evidence may be used until JDA phase

93 Again, I shall defer until the JDA phase of the case my determination of the precise ways in which this evidence may be used, including whether it may be used as evidence of incriminating conduct, and as to which charge or charges, or elements thereof, it may be capable of going.

Mr D'Elio's Google searches of "dead body in burned car" and similar

94 In paragraphs 2(f) and 2(h) of the IC notice, it is alleged that, between 10:58 a.m. and 11:05 a.m. on 25 December 2022, Mr D'Elio made the following Google searches on his mobile phone: "dead man in toruched"; "dead body in burned car"; "dead body in burned car victoria"; "dead body in burned car shepparton victoria"; and "dead body in burned car shepparton Victoria".

95 In paragraph 2(i) of the IC notice, it is alleged that, at 2:06 p.m. the next day (26 December 2022), Mr D'Elio conducted the Google search "murder shepparton" via his mobile phone.

96 It is convenient to deal with these separate pieces of evidence together.

97 Among the arguments put against the admissibility of this evidence were Ms Strugnell's submissions concerning evidence that the information contained in the searches, while not in the press by that stage, was in the public arena. Ms Strugnell also raised again the argument that, because presence at the scene of the burning of the car was not disputed by Mr D'Elio, the probative value of this evidence must be weak.

98 However, notwithstanding these submissions and others, I am persuaded that the evidence in paragraphs 2(f) and 2(h) of the IC notice, collectively, is admissible against Mr D'Elio as an implied admission of his knowledge or belief that the car, with Mr Gander's dead body in it, were both burned and that Mr Gander was killed before he was burned.

99 The evidence in paragraph 2(i) (the "murder shepparton" search), particularly when combined with the evidence in paragraphs 2(f) and 2(h), is admissible against Mr D'Elio as an implied admission of his knowledge or belief that Mr Gander was murdered, or at least that he was killed unlawfully.

100 In addition, the evidence referred to in all three paragraphs of the IC notice may, in turn, be used as evidence of incriminating conduct as to Mr D'Elio's involvement in the offences charged.

Defer determination of precise ways evidence may be used until JDA phase

101 Again, however, I shall defer until the JDA phase of the case my determination of the precise ways in which this evidence may be used as evidence of incriminating conduct, and as to which charge or charges, or elements thereof, it may be capable of going.

Mr D'Elio's message to Ms Stott "Be careful driving that need to get something out"

102 In paragraph 2(g) of the IC notice, it is alleged that, at 11:02 a.m. on 25 December 2022, Mr D'Elio sent Ms Stott a text message stating, "Be careful driving that need to get something out." It is understood that the Crown case is that Ms Stott was driving or in possession of Mr D'Elio's Holden Caprice at that time.

103 In my view, this evidence is not admissible either as evidence of incriminating conduct or for any other purpose. While it is understandable that the Crown argues that, in the context of all of the other evidence, this evidence may be taken as evincing a belief in Mr D'Elio that something connected with the alleged offending was in the car and needed to be removed, the difficulties are these:

a) First, five days later, after Mr D'Elio was arrested and his Holden Caprice was seized, police found under a seat in the car a knife wrapped in a tea towel, and on that knife was Mr Gander's blood and the DNA of each of the three accused.

b) Second, in light of that finding, it might be reasonable to infer that the knife was the something he was speaking of in his text to Ms Stott.

c) Third, however, if that were true, it is hard to believe that he did not ensure that the knife was removed in the minutes, hours or days that followed before his arrest.

d) Fourth, there is no dispute that Mr D'Elio and Ms Stott were involved in drug use and possibly drug trafficking.

e) Fifth, the text message seems to be consistent with the view that he was writing about drugs.

f) Sixth, when those circumstances are combined, I consider that no rational jury could exclude the reasonable possibility that he was indeed speaking about drugs or, in any event, a matter unconnected with the alleged offending.

104 Thus, the evidence has no, or almost no, probative value, and any such probative value it might have is outweighed by the danger of misuse of the evidence, which I regard as high. Accordingly, pursuant to s 137 of the Evidence Act, I must refuse to admit the evidence.

Mr Clarke sends "2 of Americaz Most Wanted" to Mr D'Elio

105 In the amended summary of prosecution opening ("the opening"), at paragraph 90, it is alleged that, at 12:27 p.m. on 25 December 2022, Mr Clarke sent Mr D'Elio a link to a YouTube video of the song "2 of Americaz Most Wanted". The Crown rely on the sending of the song with that title, not on the song itself or its lyrics.

106 Ms Moran submitted that, given the title of the song, this evidence amounts to an implied admission by Mr Clarke as to his involvement in the alleged offending. If not, then it is at least circumstantial evidence of the harmonious relationship between Mr Clarke and Mr D'Elio only a day after the alleged offending.

107 As I understood him, Mr Terry, who appears with Ms Skvortsova for Mr Clarke, disputed that the sending of the song could amount to an implied admission as to his involvement in the alleged offending. Further, he submitted that, because it is not a fact in issue that Mr Clarke and Mr D'Elio were in a continuing relationship in the period leading up to their arrest, the evidence has little probative value. After all, Mr D'Elio was staying at Mr Clarke's house.

108 I have found this piece of evidence more difficult than many others. However, I do not think that sending Mr D'Elio a song entitled "2 of Americaz Most Wanted" can rationally, or at least safely, be taken to an implied admission of involvement in the alleged offending. For a start, it is just the title of a song. Next, in terms, the title speaks of two, not three persons, and of America, not Australia, and is therefore inconsistent with the Crown case on those scores. Of course, I understand that the Crown would say that the sting is in the words "Most Wanted". However, I fear the reliance on any such sting is in the realms of speculation, or at least is of very doubtful probative value.

109 But, more important than its very limited probative value as an alleged admission or implied admission, I think, is the danger of unfair prejudice to Mr Clarke. If the song's lyrics (which I won't repeat here - anyone can find them on the internet) and/or its accompanying video were considered by a jury, there would be a grave risk of them thinking very poorly of Mr Clarke. While the jury would be instructed to confine themselves to considering the sending of the song with that title, it would be impossible to know whether any juror knew the song, including its lyrics and video. Further, it would do more damage than good to ask jurors who know the song to apply to be excused. Moreover, notwithstanding the great faith our system of justice must (and rightly does) place in jurors, this is precisely the sort of case in which an instruction to a jury not to look for the song would carry an unacceptably high risk of being ignored.

110 As for the potential for the evidence to show a harmonious relationship between Mr Clarke and Mr D'Elio in the day after the alleged offending, in my judgment, the evidence has only a relatively low probative value in that regard. Again, when set against the danger of unfair prejudice to Mr D'Elio, I think the evidence must be excluded pursuant to s 137 of the Evidence Act.

111 Accordingly, I must refuse to admit this evidence.

Mr Clarke sends message, group selfie and media article re fire/death to Mr D'Elio

112 At paragraph 94 of the opening, it is alleged that, at 9:40:54 p.m. and 9:41:03 p.m. on 28 December 2022, Mr Clarke sent Mr D'Elio a "selfie" of himself, Mr D'Elio and Ms Stott (which was taken at an unknown time or date), with the text reading, "The funny cunt family."

113 At paragraph 95 of the opening, it is alleged that, at 9:51 p.m. the same day, so about ten minutes later, Mr Clarke sent Mr D'Elio a message saying, "Hey bro," accompanied by a photo (taken at an unknown time or date) of Mr D'Elio in the driver's seat of his Holden Caprice.

114 In paragraph 2(j) of the IC notice, it is alleged that, at 10:02 p.m. the same day, so about another ten minutes later, Mr Clarke sent Mr D'Elio a screenshot of a news article entitled "Man's body found in car in Bunbartha". As the title suggests, the article was about Mr Gander.

115 It is convenient to deal with these three pieces of evidence together.

116 Ms Moran submitted that these messages and attachments, which were sent within 20 minutes or so of each other, amount to circumstantial evidence tending to show that, only four days after the alleged offending, Mr Clarke considered himself to be in a harmonious relationship with Ms Stott and Mr D'Elio (in the first message) and with Mr D'Elio (in the second and third messages). As for another aspect of the third message (or screenshot), Ms Moran submitted that it is capable of amounting to incriminating conduct in that it at least shows Mr Clarke's interest in the fact that the discovery of Mr Gander's body in a burnt-out car was then in the media.

117 Again, Mr Terry submitted that, because it is not a fact in issue that Mr Clarke and Mr D'Elio (and Ms Stott) were in a continuing relationship in the period leading up to their arrest, the evidence has little probative value. He submitted that there was also a danger that the jury would reason backwards, in an inappropriate fashion, to the effect that, because the accused had an ongoing relationship later, they must have been complicit in the offending together, when this piece of evidence is not capable of proving that proposition.

118 I am satisfied that all three messages and attachments are properly characterised as pieces of circumstantial evidence tending to show that Mr Clarke believed he was in a harmonious relationship with Mr D'Elio and with Ms Stott and Mr D'Elio as of 28 December 2022, and that they are admissible for that purpose. While I consider it to be weak evidence, I do not accept that it carries the danger of unfair prejudice Mr Terry ascribes, or at least that danger, when set against the probative value of the evidence, is not such as to compel exclusion pursuant to s 137.

119 I also accept the Crown's submission that the third message (or screenshot) is capable of amounting to incriminating conduct in Mr Clarke's case, in that it at least is capable of showing his interest in the fact that the discovery of Mr Gander's body in a burnt-out car was then in the media.

120 Accordingly, these three pieces of evidence are admissible in the case against Mr Clarke.

Defer determination of precise ways evidence may be used until JDA phase

121 However, again, I shall defer until the JDA phase of the case my determination of the precise ways in which the third message may be used as evidence of incriminating conduct, and as to which charge or charges, or elements thereof, it may be capable of going.

Ms Stott has deceased's number stored in her phone as "Charlie Dead Dog Gandre"

122 In paragraph 2(k) of the IC notice, it is alleged that Ms Stott had Mr Gander's phone number saved in the contacts list of her phone under the name "Charlie Dead Dog Gandre".

123 Ms Moran explained that, while the evidence is mentioned in the IC notice, the Crown seeks to lead it as an admission and/or as circumstantial evidence against Ms Stott of motive and animus towards Mr Gander.

124 I understood Mr Sala to concede that the evidence was admissible for those purposes.

125 If I understood him correctly, Mr Sala was right to make that concession. The evidence is admissible at least as circumstantial evidence that Ms Stott had a motive to commit the offences and an animus towards Mr Gander.

126 In paragraph 2(l) of the IC notice, it is alleged that, during his police interview on 30 December 2022, Mr D'Elio told the following lies when he stated that, on 24 December 2022, (1) he did not leave 16 Sunbury Road (A49), (2) he did not go to Nathalia (A58), and (3) he doesn't have a mobile phone (A13); and (4) when asked about the car fire in Bunbartha, he said that he "couldn't tell you anything. I don't know nothin'" (A71).

127 Ms Moran submitted that each of these alleged lies is provable and that each is capable of evincing incriminating conduct.

128 I did not understand Mr Kounnas or Ms Strugnell to make any submissions to the contrary. Indeed, as I understood her, Ms Strugnell conceded that the question whether the alleged lies amounted to incriminating conduct would be a jury question.

Evidence admissible as evidence of incriminating conduct

129 In any event, I accept that the identified alleged lies by Mr D'Elio in his police interview are capable of being used by the jury as incriminating conduct.

Defer determination of precise ways evidence may be used until JDA phase

130 However, again, I shall defer until the JDA phase of the case my determination of the precise ways in which this evidence may be used as evidence of incriminating conduct, and as to which charge or charges, or elements thereof, it may be capable of going.

131 In paragraph 2(m) of the IC notice, it is alleged that, during her police interview on 30 December 2022, Ms Stott told the following lies when she stated: (1) that she didn't see the deceased on the Friday or Saturday (A394); (2) that, on 24 December 2022, she did not have her mobile phone on her (A675-‍675, A794 & A795); (3) that they drove straight from Shepparton to Nathalia (A719, 728, 912 & 943); (4) that she didn't know Loch Garry Road at all and didn't think she'd ever been there (A731-732 & A779-787); and (5) that she did not go on Wanganui Road on the way to Nathalia on 24 December 2022 (A861-862, A939 & A946-958).

132 Ms Moran submitted that each of these alleged lies is provable and that each is capable of evincing incriminating conduct.

133 I did not understand Mr Sala to make any submissions to the contrary.

Evidence admissible as evidence of incriminating conduct

134 I accept that the identified alleged lies by Ms Stott in her police interview are capable of being used by the jury as incriminating conduct.

Defer determination of precise ways evidence may be used until JDA phase

135 However, again, I shall defer until the JDA phase of the case my determination of the precise ways in which this evidence may be used as evidence of incriminating conduct, and as to which charge or charges, or elements thereof, it may be capable of going.

136 In paragraph 2(n) of the IC notice, it is alleged that, in his police interview on 30 December 2022, Mr Clarke lied when he said he didn't know who Mr Gander was (A15-‍16 & A118).

137 As I understood him, Mr Terry conceded that this evidence was capable of going to the jury as evincing incriminating conduct.

138 I accept that concession. The evidence of the identified alleged lie by Mr Clarke in his police interview is capable of being used by the jury as incriminating conduct.

Defer determination of precise ways evidence may be used until JDA phase

139 However, again, I shall defer until the JDA phase of the case my determination of the precise ways in which this evidence may be used as evidence of incriminating conduct, and as to which charge or charges, or elements thereof, it may be capable of going.

Ruling 5: Mr Clarke's (edited) police interview

140 I turn now to my fifth ruling, which is a single-issue ruling.

141 The issue is whether, as Mr Terry submits, that, instead of playing the jury Mr Clarke's police interview in an edited form, the Crown should just allow his client to make signed admissions or have agreed facts as to what was said in the relevant parts of the interview, or, whether instead, as Mr Gibson submits, the Crown should be allowed to play the interview in its edited form.

142 Mr Terry's submission is to the effect that, because Mr Clarke's edited interview is so short, it will look out of place when compared with the much longer police interviews of Ms Stott and Mr D'Elio. This, he submits, would be unfairly prejudicial to Mr Clarke because the jury will infer that he has chosen to exercise his right to silence in large part, notwithstanding that those parts of the interview will be excluded. Having an agreed set of facts about what the Crown wishes to lead of what he said would avoid that prejudice, or would at least reduce the risk of it.

143 Mr Gibson submitted that the Crown should be entitled to have the jury see and hear Mr Clarke's responses in the police interview, including when he told the lie about not knowing Mr Gander, so that they may more fully and accurately assess his responses.

144 In my opinion, Mr Gibson's submissions are to be preferred. The Crown is entitled to have the jury see and hear Mr Clarke's responses in the interview, albeit it will be a heavily edited version. I am not satisfied that there is any unfair prejudice to Mr Clarke in presenting the evidence in that way; and, if there is, it is outweighed by the probative value of the evidence presented in the form proposed by the Crown.

Ruling 6: Section 83 of the Evidence Act

145 Finally, I turn to Mr Sala and Mr Terry's submissions that, pursuant to s 83 of the Evidence Act, the evidence of admissions made by Mr D'Elio in his recorded conversation with the covert operative may be used by their clients in their separate trials because they consent to that course.

146 At this stage, it is unnecessary to rehearse the submissions made by Mr Sala, Mr Terry and Mr Gibson on this issue.

Ms Stott and Mr Clarke may use Mr D'Elio's admissions in their cases

147 Rather, it is sufficient to say that, having heard those submissions and having considered the authorities to which I was referred, at this stage of the trial, I consider it open to Ms Stott and Mr Clarke to use the evidence of Mr D'Elio's admissions to the undercover operative in their cases, given that their counsel have indicated that they consent to that course.

148 I should add that, in so far as I may be required to do so, I accept that counsel believe, and that there are bases for believing, that there is a forensic advantage to their clients in taking this course.

Defer consideration of finer points until JDA phase

149 However, it is necessary that I defer, until the JDA phase of the trial, consideration and determination of the finer points of precisely how and to what extent the evidence of Mr D'Elio's admissions to the undercover operative may be used by Ms Stott and Mr Clarke in their respective cases. In addition, consideration will need to be given at that time to the operation of s 83(3), which provides that "[c]onsent cannot be given be given in respect of part only of the evidence".

150 That concludes my rulings and my summary of reasons therefor.

151 Now, I shall hear counsel on whether I have covered all outstanding matters, and on what course is proposed next.

[2] Contrary to the Crimes Act 1958 (Vic), ss 197(1) & (6).

[3] See the Crimes Act 1958 (Vic), ss 323(1)(c), 324(1), 324A & 324B.

[4] See the Crimes Act 1958 (Vic), s 464C.

[5] See the Crimes Act 1958 (Vic), ss 464A & 464C.

[6] See, e.g., Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396; and Alhassan v The King [2024] VSCA 233.

[7] See the definition of "investigating official" in Crimes Act 1958 (Vic), s 464.

[8] I did not understand Mr Kounnas to rely on s 138 of the Evidence Act 2008 (Vic) either.

[9] Which might include alternative versions, if there be any, as well as indicating a party's position, if it be such, that the utterance alleged is simply inaudible or indecipherable.

[10] See the Evidence Act 2008 (Vic), s 59.

[11] See the Evidence Act 2008 (Vic), s 76.

[12] I took Ms Moran's reliance on s 87(1)(a) of the Evidence Act 2008 (Vic) to be abandoned. Even if I am wrong about that, I consider that s 87(1)(a) could have no application in this case.