R v Walker

District Court of NSW|2021-07-26|Before: Basten JA, Hulme J

Judgment

HIS HONOUR: This is a criminal trial by judge alone. An indictment was presented to me on 19 July 2021 which contained two counts. The first count is: "On 13 October 2016, at Bowraville in the State of New South Wales, [you] did break and enter the dwelling house of Eric Fuller at 89A Balance Tank Road, and then in the said dwelling did commit a serious indictable offence, namely steal motor vehicle, namely a Harley Davidson motorcycle, in the circumstances of special aggravation, namely that the said Neil Patrick Walker was in company with Alistair White, and did intentionally wound Eric Fuller."
That is an offence contrary to s 112(3) of the Crimes Act 1900. The second count in the indictment is this: "On 13 October 2016, at Bowraville in the State of New South Wales, [you] did steal a motor vehicle, namely Holden utility with New South Wales registration BX 80 DD."
That is an offence contrary to s 154F of the Crimes Act 1900. To each of those counts the accused entered a plea of not guilty. It has become my duty therefore to act as both the tribunal of law and of fact to decide the case. I have to direct myself as if I were a jury. The first directions which I give to myself are those concerning the onus of proof and the standard of proof.

Burden of proof

The burden of proof of the guilt of the Accused is placed squarely on the Crown. That burden rests upon the Crown in respect of every element of the offences with which the Accused has been charged. That burden never shifts to the Accused. There is no obligation whatsoever on the Accused to prove any fact or issue that is in dispute. It is, of course, not for the Accused to prove his innocence but for the Crown to establish his guilt.

Standard of proof

A critical part of the criminal justice system is the presumption of innocence. A person charged with a criminal offence is presumed to be innocent unless and until the Crown persuades the Court that the person is guilty beyond reasonable doubt. Proving the Accused's guilt beyond reasonable doubt is the high standard of proof the Crown must achieve before the Court can convict the Accused. At the end of my consideration of the evidence in the trial and the submissions made to me by the parties, I must ask myself whether the Crown has established the Accused's guilt beyond reasonable doubt.
The Crown does not have the burden of proving beyond reasonable doubt every single fact that is in dispute. The obligation that rests upon the Crown is to prove the elements of each charge and to prove those facts beyond reasonable doubt. In a criminal trial there is only one ultimate issue that the Crown has to prove in relation to each charge, has the Crown proved the guilt of the accused beyond reasonable doubt. If the answer is yes, the appropriate verdict is guilty. If the answer is no the verdict must be not guilty.
I remind myself that suspicion is not proof. Proof of a matter beyond reasonable doubt involves rejection of all reasonable hypotheses or any reasonable possibility inconsistent with the Crown case: Moore v R [2016] NSWCCA 185 at [43] Basten JA with whom RA Hulme J, generally agreed at [94].

Evidence of Complainant

I turn now to consider the evidence of the complainant, Eric John Fuller. The first is to consider the scene of the crime alleged, 89 Balance Tank Road, Bowraville. Bowraville is on the south bank of the Nambucca River. The main street of Bowraville is known as High Street which runs from south to north. After crossing the Nambucca River, the road is known as Rodeo Drive. Rodeo Drive links Bowraville to Macksville by following the north bank of the river. It also leads to a shortcut to Nambucca Heads via Newee Creek.
Shortly after Rodeo Drive leaves Bowraville and crosses the Nambucca River there is a turnoff to the north known as Valla Road. Shortly after that intersection Balance Tank Road turns off Valla Road. It is on the right-hand side or eastern side of Valla Road heading generally in a north-easterly direction. 89 Balance Tank Road is the residence of Mr Stephen John Telford. His residence is 2 kilometres up Balance Tank Road and 4 kilometres from the centre of Bowraville. 89A Balance Tank Road is a further 1.5 kilometres along Balance Tank Road (T5.35) and therefore is about five and a half kilometres from Bowraville.
Mr Fuller had rented 89A from Mr Telford for probably seven years since about 2009 in rough terms, although his tenancy may not have been continuous (T55.21). At T5.17 Mr Fuller thought he had been at this address for five years but he was unsure. On either view he was a long-term tenant at 89A Balance Tank Road. The driveway to the house from Balance Tank Road is 1.5 kilometres long. Mr Fuller described his house as a "removal house" made of timber and fibro. There are three bedrooms but two of those are used for storage. There is a kitchen, a bathroom, a living room and a study, and a separate storeroom under the roof of the dwelling.
There are in fact four entrances to the dwelling, although Mr Fuller only described three of them. The first is the formal front door on the east side of the building which Mr Fuller described as his "back door". There is a formal back door which Mr Fuller called his "front door" on the western side giving access to the kitchen. On the western side is a veranda constructed of wood and stairs leading up to it from the southern side of the house. The western entrance is reached from the veranda.
There is a third entrance to the house to one of the bedrooms used as a storeroom from the northern side of the veranda. The fourth entrance is one leading from the study to the north side of the house which was described as the "side entrance". The separate storeroom was accessed by a door on the southern side of the veranda. It appears to have been a room initially designed to be a laundry.
Mr Fuller was the owner of a Harley Davidson motorcycle. He purchased it on 15 November 2012 from a dealership in Victoria known as Adrenalin Performance Bikes. The invoice for the purchase, exhibit A, describes the bike as a Harley Davidson constructed in 1992 and provides its vehicle identification number and its engine number. Its last registered number was APE92 which was a New South Wales registration number.
The bike was sold as accident-damaged as a "statutory write-off" and could not be registered for use on the road. The purchase price was $4,500. The invoice tells me that freight had been arranged through Ferguson NC Transport to take the bike from Victoria to Balance Tank Road, Bowraville.
All told, Mr Fuller had paid out about $9,000 on parts to restore the vehicle (T19.43). The vehicle was close to be registered. This evidence was given: "Q. Was there any - what was left to do before it was ready to register? A. Very little. Take it to an engineer, have the engineer's certificates done. And that's pretty much it. Little, little, a few bolts to be tightened up and…I think maybe a clutch cable."
If the bike were registered, Mr Fuller estimated that it was worth $25,000. Mr Fuller had posted on Facebook the progress of the restoration of the motorcycle. The Facebook entry was a "open page one." In-chief, Mr Fuller said that the posting had been for "a couple of months," or over the last year, and agreed in cross examination the he told the police that it may have been over a two-year period.
Mr Fuller kept the motorcycle inside the house. At one stage it was in his bedroom. Subsequently, it was in the lounge room. In any event, it was clearly within the house at the material time. Mr Fuller was the owner of a VS Commodore utility thought to be a 98 model which was blue in colour; but his friends "always called it purple." It had been recently re-sprayed. Mr Fuller thought it was worth about $5,000. Exhibit Z tells me that its registration number was BX80DD, the registration number pleaded in the indictment.
On the evening of 12 October 2016, Mr Fuller was at home by himself. At one point he described himself as bit of a hermit. He had fallen asleep whilst laying on the lounge with one of his cats. The doors of his house were closed and locked in accordance with his usual practice. Just before daylight, which he estimated to be between 5:00am and 5.30am, Mr Fuller was startled awake. He said this: "I was startled awake. I thought one of my cats had knocked the microwave off the bench, and I just - all I remember is getting off the lounge."
He got up and went straight towards the kitchen to where the microwave was because he had thought the cat had knocked the microwave down. His next recollection was waking up on the ground. He went on to say this: "I sort of got up and a bit of a daze, and I sort of got to my knees, and I could feel something wet on my back, but then things started to - people started to scream around me."
The noise which had startled Mr Fuller awake was the noise of the western door of the house being smashed in.
There were two people in the house, and he heard someone else outside. Mr Fuller gave these descriptions which he frankly admitted were vague. The first person was six foot plus tall. He was slim. He was wearing some sort of jumper, which he held up over his mouth. He was wearing a beanie or perhaps a balaclava. I shall describe that man as the "tall man".
The second man in the house was described as "short and stocky." He was "very muscly." He was wearing, "long shorts" and "chunky" sand shoes. Mr Fuller could not recall whether he was wearing a singlet or a T-shirt. He went on to describe him as a "big, solid man." He did not seek to cover his face. This was the man who did most of the screaming/shouting/yelling/talking. I shall refer to this man as the "stout man." Both the tall man and the stout man were described as "aboriginal or dark." The third man outside does not appear to have been seen by Mr Fuller. He heard his voice but could not hear what he was saying. He described the third man's voice as being "muffled."
The stout man carried a weapon. Mr Fuller described the weapon in this fashion: "…It was a sugar-cane knife. I know this because I've lived in Queensland for a long time. It had the hook on the end. The blade itself looked rusty to me, so rusty, maybe it had been oiled up and with a timber handle. Q. About how long was it? A. Two-and-a-half feet long. Q. Was the blade wide or narrow? A. A wide blade. A cane-cutter's knife. Q. About how wide was the blade? A. Seven to eight inches."
This weapon has been variously described in other ways as a "machete," as a "cane cutter," as a "banana cutter." The actual implement can be seen in exhibit D, photograph 9. The implement is in fact a "short-handled cane knife." I shall describe it as a cane knife, as Mr Fuller did. This evidence was given: "…the guy with the machete was yelling at the other guy to get the bike. He…actually screamed at me, 'Get the keys. Where are the keys?' I told him they were in the bike. Then he told me he wanted the keys to my ute, which were hanging on the window, and I told him where they were. There was no - I did not - there was no - I didn't argue with him at all. There was no - I did exactly what he told me to do, and then…and then he's hit me again at that point with the side of the blade. Q. Was he - when he was yelling these things, 'Get the bike,' and 'Give me the keys,' and asking for the key to the ute, where was he in relation to you? Where was he standing? A. He was standing in front of me between the kitchen and the foyer and the bathroom. I was on my knees in the foyer, almost in the lounge room. Q. How far away from you was he, would you say? A. A metre. No more. Q. You say he then hit you with the side of the blade? A. Yes. Q. Did you see him swing it? A. Yes. I saw him swing it. No, I didn't really see him swing it. Peripherally, I think I saw him swing it and then I've gone down and I don't even know how long I was out for. Q. Do you remember where it hit you, the side of the - side of the.. A. The side of the head. Left-hand side of the head. Q. What happened after it hit you? A. Well, I've gone down and when I've come to again, there's sort of, they're in the process of pushing the bike through the foyer and out the back [eastern] door. Q. What were you doing while they were in the process of doing that? A. On my knees up against my toolbox, which was in the foyer, trying to keep out of their way."
All this was happening quickly. A little later Mr Fuller gave this evidence: "Q. Were they saying anything to you as they were pushing the bike out the back door? A. I have a bit of a time discrepancy there. I'm not real sure when I was attacked by the solid man. He come and - this is after he cut my arm. I worked my way into the bathroom and he backed me into the shower. I actually - I climbed into the shower so he couldn't get a good swing, and then his friend come back yelling that they couldn't get the bike on the trailer and they needed his help. Q. You mentioned that your arm was cut. When did you first notice that your arm was cut? A. He was screaming at me. He was winding himself up at me. He screamed something out. He asked me my name, and I told him my name was Rick. He then said some other name and said, 'You're that rapist.' And he was winding himself up. It looked like he was going to knock me. ……….. He lifted the blade up above his shoulder and he went the big hit and I lifted my arm. I noticed it cut immediately. I reached immediately over and grabbed the towel. That's how close I was to the bathroom and wrapped it round my arm. Q. Was that before or after he said those things, including that you were that rapist? A. I think it was after. Q. You spoke about being backed into the shower. Is that something that happened after you were cut or at a different time? A. This is - yes, this is as they were - they'd pushed the bike to the back door. They were sort of both over the bike and I sort of positioned myself in the doorway then he's - when he's finished pushing the bike out of the door, he's come back at me at 100 mile an hour with the machete and - above his head screaming at me and.. Q. Okay. And then he said those things to you and cut you? A. Yes." ………… "Q. You said that after you were in the shower, the other guy came in and said something about getting a bike on the trailer? A. They couldn't lift it up onto the .. trailer, .. my ute so, and they had a bit of an argument over it and then he's gone out with them. Q. What did you do once they'd both left the bathroom? A. Fled. I was in fear of my life."
The answer to the second last question I have quoted and earlier evidence I have quoted, which I have orally emphasised, strongly suggests that the third person was still outside actively assisting tall man in seeking to load the Harley Davidson motorcycle onto the tray of Mr Fuller's utility. The Harley Davidson weighed 300 kilograms (T21.26). In cross-examination Mr Fuller said that the motorcycle had to be lifted up one and a half feet to be placed on the tray of his utility.
Mr Cranney, for the accused, again elicited from Mr Fuller that tall man said to stout man, "We can't get it on" (T21.33). I am persuaded on this evidence that the third man was still present to assist tall man and stout man load the motorcycle onto the tray of Mr Fuller's utility, that is, he was present throughout the period that the crime was being committed.
The route taken by Mr Fuller in fleeing from his home is described in detail but does not need to be considered in these reasons. He made the distance down to Mr Telford's home and called out for his assistance which was freely and promptly given. Mr Fuller and Mr Telford travelled in Mr Telford's old Toyota utility towards Macksville Hospital. The route taken took them down the High Street of Bowraville.
When they were almost opposite the police station, Mr Fuller saw his utility with the motorcycle on the tray being driven in the opposite direction by a dark person who Mr Fuller assumed was the stout man. Mr Fuller decided to give chase but by the time Mr Telford turned his utility around Mr Fuller's utility had vanished and they elected not to pursue it further. Mr Fuller and Mr Telford then proceeded into Macksville Hospital. Initial first aid was given to Mr Fuller at that hospital.
Police attended upon Mr Fuller there. Those police included Detective Senior Constable David Stuart, the officer-in-charge of the investigation into this crime. Mr Fuller was then taken by ambulance to Coffs Harbour Hospital for further treatment. At Macksville Hospital Detective Senior Constable Stuart took some photographs of Mr Fuller's injuries that were visible to him. They are exhibit F.
They show that sutures had already been inserted above Mr Fuller's left eye in the line of his eyebrow, that he had been canulated, and that there was bandaging on his arm. When Mr Fuller was taken to the Coffs Harbour Hospital photographs of his injuries were taken by Detective Senior Constable Daniel Trotman. They are exhibit G. One of them shows a large wound, and I use that noun advisedly, to Mr Fuller's back which has been pulled open by hospital staff wearing gloves so that it could be photographed. It appears to me that spinal bones can be seen in that wound.
Other photographs are of the damage to the witness's arm which appear to be a very large lesion from over the posterior aspect of the arm when viewed anatomically. In evidence is a report from Dr Malcolm Robertson, a Fellow of the Australasian College of Emergency Medicine. That is exhibit J. That contains this history: "At about 7.38am on 13 October 2016, Mr Eric John Fuller ... arrived in the emergency department of Macksville Hospital after an alleged assault. He was seen by Dr Chloe Lowndes, a career medical officer, and her notes made at the time were used for this statement. The patient related machete blows to the right forearm and lower (lumbar) back, a machete (blunt end) blow to the head causing transient loss of consciousness." That history is consistent with Mr Fuller's evidence.
These findings on examination were recorded: "The right forearm had a 10 cm linear incisional wound over the radial aspect to a bone depth which was palpable through the wound, in the upper third of the extensor aspect of the forearm. There appeared to be reduced power to finger extension, minimal power with medial finger. There appeared to be reduced wrist extension power. The main neurovascular structures in the area appeared intact on initial assessment. There was an approximate 10 cm deep linear incisional wound over the sacral area of the lumbo-sacral back through the skin and muscle layers, with palpable bone in the wound. There was a 2 cm linear incisional wound between the eyebrows and 1 cm above the left eyebrow."
The report goes on to state what treatment was provided at the Macksville Hospital before Mr Fuller was transferred to Coffs Harbour Hospital to undergo treatment by a general surgeon, no doubt to repair the wound to the back and the wound to the right forearm. There can be no doubt whatever that Mr Fuller was wounded. The right forearm laceration and the laceration to the sacral area of the spine centrally are each a wound penetrating the epidermis and the dermis.
This brings me to the substantive issue. The Crown case is that the tall man was Alistair White, who is also known as Kid White. I shall merely refer to him hereafter as "White". The Crown case is that the stout man was the accused. The Crown case is that the third man, the man outside the house was Martin Tibbett who likes to be called Troy Tibbett and is often referred to as Martin Troy Tibbett. I shall merely refer to him hereafter as "Tibbett".
The action which I have described thus far can be called a "home invasion". White has not been charged, he is at large. His whereabouts are known to the police but he is outside New South Wales. He has provided no evidence in this prosecution. Tibbett has been charged and has pleaded guilty to an offence related to the home invasion and has been sentenced. He is a person who was criminally concerned in the home invasion. His evidence is critical to the Crown case and the Crown relies on Tibbett to identify the accused as the stout man together with other evidence of disputed significance.

Elements of Counts 1 and 2

There are certain directions that I must give to myself about Tibbett's evidence. However, before I go to consider Tibbett's evidence and the other evidence relied upon by the Crown it is convenient at this time to consider the elements of the two counts in the indictment. The elements of count 1 in the indictment are these; 1. The accused broke 2. and entered 3. the dwelling house of Eric John Fuller, and 4. having entered the premises took his Harley Davidson motorcycle, without his consent, and 5. was in company with at least one other person, Alistair White, and 6. intentionally 7. wounded Eric John Fuller.
The fourth of those elements contains within it a number of other elements which are the same elements as those of count 2.
The elements of count 2 in the indictment are these: 1. There must be the taking; 2. and carrying away (asportation); 3. of property belonging to someone other than the accused; 4. without the consent of that person; 5. with intention at the time of taking permanently to deprive the owner thereof; and 6. done without a claim of right made in good faith.

First Count

I turn to consider those elements. I shall consider the first count first.

First Element

The first element is the breaking. There is no dispute that there was a breaking of Mr Fuller's residence. Firstly, the metal lever part of the handle of the flyscreen door of the western entrance was broken off the door into two pieces that are shown in Exhibit B, photos 55 (showing open flyscreen door with a broken handle parts at marker E), 54 (closer view of the flyscreen door with broken handle parts of the veranda), 52 (close up of marker E with broken handle parts, fracture of metal clearly being seen), 49 (handle mechanism of flyscreen door in situ on door with handle clearly detached), 47 and 46 (broken wooden door frame broken by tongue of flyscreen door being pulled open).
Secondly, the main wooden door of the western entrance was forced by being either kicked or shouldered open. The metal catch for the tongue, the lock on the door has been detached and found lying on the kitchen floor (exhibit B photo 39 at marker F). Where that metal catch was attached to the door frame is seen in photos 42 and 41. The breaking of the wooden door frame is evident in those photographs particularly number 41.

Second, Third and Fourth Elements

The second element is the entry into the premises. On Mr Fuller's uncontested evidence the two men that I have identified as tall and stout entered his residence. The third element is that this was a dwelling house. This residence is clearly a dwelling from the evidence that I have already cited. The fourth element is that having entered the premises the entrants stole the Harley Davidson motorcycle. The motorcycle was physically taken and removed from the residence, loaded onto Mr Fuller's utility which was driven away with the motorcycle on its tray. The motorcycle was never recovered by the police or returned to Mr Fuller.
In evidence is a statement of Detective Senior Constable Justin Welsh, which is part of Exhibit Z and that exhibit contains this matter: "14. On the morning of 27 March 2019 I received a call from the victim, Eric Fuller. Informed me that he had located part of his stolen motorcycle for sale on the Harley Davidson Buy Swap and Sell Facebook site. As a result, I obtained details. 15. I contacted Detective Sergeant Wicks at the Coomera police centre, Queensland and provided him with certain information about the home invasion at the victim's property and what the victim had located on Facebook. I am aware that Queensland police executed a search warrant at 8 Hope Street, Nerang where part of the victim's motorcycle including the engine and transmission were located and seized."
Intention of permanently depriving Mr Fuller of his motorcycle is the only rational inference to be drawn from this evidence. No one has sought to establish a claim of right nor is there any evidence from which such a claim could be inferred.

Fifth and Sixth Elements

The fifth element is that there was an offender who was in company. Clearly the tall man and the stout man were in company with each other. The sixth element is that there was an intention to wound. The blows described by Mr Fuller, the blows to his arms and back, were clearly deliberate. The wounding of the back appears to have been the initial blow. Mr Fuller feeling moisture on his back when he "came to" is consistent with his feeling blood flowing down his back. The depth of the wound indicates to me that it was direct, deliberately inflicted using the hook on the cane knife to penetrate so deeply and narrowly.

Seventh Element

The seventh element is, of course, the wounding of Eric John Fuller. On the evidence so far canvassed, Mr Fuller was wounded. The weapon penetrated both his epidermis and his dermis of both the sacral back and the right forearm. I turn then to the elements of Count 2.

First Element

First, there must be a taking. Having obtained the keys to Mr Fuller's utility from Fuller by verbal duress, it was driven away by one of the three people that the evidence allows me to identify. It is, however, possible that there may have been another or others involved who Mr Fuller did not perceive as being nearby. In any event, he saw the utility being driven along High Street of Bowraville when he was a passenger in Mr Telford's utility. There is no doubt that there was a taking of Mr Fuller's utility.

Second, Third and Fourth Elements

The second element is the asportation of the vehicle, the taking of it away. On the facts that I have recited thus far, there clearly was such a taking away. There is no dispute that the utility belonged to Mr Fuller, not to either the tall man, the stout man or the third man. The fourth element is that Mr Fuller did not consent to the taking of his utility. Mr Fuller clearly did not voluntarily consent to its taking. He told Stout where the keys were because he did not want to argue with the intruders as he was in fear.

Fifth Element

The fifth element is the intention of permanently depriving Fuller of his vehicle. There was no representation made by any of the three offenders that Fuller's ute would be returned to him. There is no suggestion that it was being "borrowed". It was never returned to Fuller. It was destroyed. Detective Senior Constable Justin Welsh's statement of 27 August 2019 part of exhibit Z contains this: "4. I am aware that on 15 October 2016 Eric Fuller's Holden Commodore utility registration BX80DD was located on a vacant block next to Kara Kar Trailers at 202 Fox's Road, Nambucca Heads in which the vehicle was destroyed by fire. I was aware that there were Roads and Maritime enforcement cameras positioned on the Pacific Highway, Valla, just north of Valla Beach Road. 5. On 17 October 2016 I submitted an IASK request to the Roads and Maritime Services in which I provided the registration of the victim's vehicle to establish if there had been any activations between the time the victim's vehicle was stolen and recovered. 6. I received notification of two activations. …… 8. As a result of receiving notification of the activations, I submitted a further IASK request to obtain images of the vehicle at the time of the activations. On 18 November 2016 I received four photographs of the victim's vehicle captured by the Roads and Maritime enforcement cameras positioned on the Pacific Highway, Valla."
One of those photographs is Exhibit BB. That shows Fuller's utility being driven on the (Old) Pacific Highway at Valla on 13 October 2016 (the day of the home invasion) at 11.59.55, travelling south. A little portion of the tray is visible, no part of the motorcycle can be seen. Valla is a beach and hamlet on the Old Pacific Highway between Urunga and Nambucca Heads. A forensic investigator, Senior Constable Bruce Gill, then stationed at Coffs Harbour, attended the vacant lot at noon on 15 October 2016. He took a number of photographs of the burnt-out utility in situ. They are part of Exhibit D. The earliest photograph is numbered 15, and the last is numbered 71.
The distinctive colour of Mr Fuller's utility can be seen in photographs numbered 47 (rear view), 46 (rear and offside rear view), 45 (closer view of rear and offside rear), 44 (offside rear view), 40 (near side rear view), 45 and 24 (views of the inside of the rear tray door). Senior Constable Gill gave evidence that the area of greatest damage to the vehicle was the interior of the cabin of the vehicle and also appeared to be the source from which the fire had spread and that, therefore, the fire had started within the anterior of the cabin. He gave consideration to four possible causes of the fire. Firstly, a natural cause. Secondly, an accidental cause. Thirdly, a deliberate lighting and finally, an undetermined cause. He expressed the view that the fire was deliberately lit.
I have no hesitation in accepting that evidence as there were no "primary identifiers," that is, no registration number or inspection number, it was submitted by Mr Cranney for the accused that this might not be Mr Fuller's utility, but both Detective Senior Constable Welsh and Detective Senior Constable Stuart (at T138.06) were convinced that it was and I accept that evidence from two experienced investigators. After all, no vehicle matching the description of Mr Fuller's utility has turned up anywhere else.

Sixth Element

The final element is that there was no claim of right made in good faith. Neither the stout man, nor the tall man, nor the third man, made any claim of right to Mr Fuller when the demand was made that he hand over the keys to his ute. There is no valid claim of right made in good faith.
Accordingly, I am satisfied that each of the two crimes pleaded in the indictment were committed. The remaining issue is whether it has been established beyond reasonable doubt that the accused was the relevant actor, that is, that the accused was the stout man, as the Crown has set out to prove.

Further Directions

This brings me directly to the evidence of Tibbett. As I alluded to earlier, I am required to give myself certain directions about his evidence. Firstly, I direct myself in accordance with R v Murray (1987) 11 NSWLR 12 per Lee J at 19E. Wherever the Crown seeks to establish the guilt of an accused person with a case based largely or exclusively on a single witness, it is important that the Court should exercise caution. The Court must exercise caution before it convicts the accused because the Crown case largely depends on accepting the reliability of the evidence of the single witness.
This being so, unless the Court is satisfied beyond reasonable doubt that the essential Crown witness is both an honest and an accurate witness in the account he has given, the Court cannot find the accused guilty. Before the Court can convict the accused, I should examine the evidence of the essential Crown witness very carefully in order to satisfy myself that I can safely act upon that evidence to the high standard required in a criminal trial. I am not suggesting that I am not entitled to convict the accused upon the evidence of this essential Crown witness. I am entitled to do so but only after I have carefully examined it and satisfied myself that it is reliable beyond reasonable doubt. In considering the essential Crown witness's evidence as to whether it does satisfy me of the accused's guilt, I should of course look to see if it is supported by any other evidence.
I also direct myself pursuant to the Evidence Act 1995 s 165(1)(d). See also Sio v The Queen [2016] HCA 32. The Crown relies upon the evidence of Martin Troy Tibbett. The Crown also asserts that the witness is a person who was involved in the alleged crime. The law requires me to give myself certain warnings and directions concerning this evidence. Those warnings and directions are given in every case in which the Crown relies upon the evidence of a witness who was involved in the alleged crime.
The need to give such directions arises because the Courts have, over the years, a great deal of experience concerning the reliability of evidence given by a witness who was involved in the alleged crime. That experience has shown that the evidence given by such a witness may be unreliable. I do not intend to suggest, however, that such evidence is always unreliable. My purpose in giving these directions is only to warn myself that the evidence of such a witness may be unreliable and for that reason, I must approach that evidence with considerable caution in the ways in which I shall outline.
There are many reasons why the evidence of such a person may be unreliable. Possible reasons are these. Firstly, it is only natural that a witness who was involved in the alleged crime, may want to shift the blame from himself onto others and to justify his own conduct in the process. The witness may construct untruthful stories which tend to play down his own part in the crime and play up the part of others in the crime, even going so far as to blame innocent people.
Secondly, persons who were involved in an alleged crime may make false claims as to the involvement of others out of motives of revenge or a feeling of dislike or hostility. Frankly, Tibbett admitted that he hated the accused.
Thirdly, such a person may be motivated to give false evidence in order to qualify for a reduction in his or her own sentence. The witness pleaded guilty to the offence of concealing a serious indictable offence, namely the especially aggravated breaking and entering and committing a serious indictable offence. The evidence does not tell me what his sentence was, but it tells me that he was given a 15% discount on his sentence for such assistance.
Fourthly, there may be other reasons or motives why false evidence has been given by such a witness. It is not for the accused to establish what they may be. The Crown has to prove the essential elements of its case and the accused does not have to prove anything.
Fifthly, experience has shown that once such a witness has given a version to the police which incriminates an accused, that witness may feel locked into that version even if it contained inaccuracies or even if it were substantially untrue.

Martin Troy Tibbett

I firstly turn to the evidence relating to the relationship between Mr Fuller and Tibbett. Mr Fuller knew Tibbett. He gave this evidence: "Q. How did you come to know him? A. Many years ago I met his younger brother through…adversity and…he befriended me, came around my house, helped me with motorcycles, helped me with my timber work. Q. When you say he helped you, you're talking about the younger brother or are you talking about Troy? A. The younger brother, yes… Q. What was the younger brother's name? A. Clayton. And from there I…sort of met the nanny or his nanny [grandmother] Judy…and his mother…Joanne. And…Troy didn't come into the picture until much later, he was…had trouble up in…Barraba I think or Tamworth and he was on his way down to live with his…family and they asked me if I could put him up. I said no but he still wound up at my house and he'd come up for a drink with his brother. Q. Was Troy known by any other name? A. Apparently, yes, I didn't know this until after the incident, Martin. Q. You've talked about Troy coming round to your place with his brother to have a drink on occasion? A. Yes.. Q. Did he ever come round for any other purpose? A. He come up for a smoke every now and then but he'd bring the smoke. Q. You've talked about Clayton helping you with some projects. Did Troy ever help you with some projects? A. Troy…helped me lift the..motor out of the motorcycle and helped me put it back in when I was ready to put it back into the new frame. Q. Where did all that happen? A. In my loungeroom. I think it was my loungeroom. It was either the loungeroom or the kitchen. Q. Did Troy at some stage ask if he could leave something at your house? A. Yes..he left the steel box which he put downstairs. It was only there for a short time because..he was in all sort of trouble from what I could gather, and I just said I didn't want it at my house. 'Take the box'. Q. And before 13 October 2016 how long had it been since Troy had been to your house? A. At least a couple of years. Maybe three."
In his evidence about his injuries, Mr Fuller had said that prior to the home invasion he had a slight limp "due to other dramas with the Tibbetts" but that limp was made worse by the effects of the home invasion. This issue was taken up in cross-examination by Mr Cranney: "I was sitting there waiting for young Clayton one day out the front of his house and two guys got out of the car and came running down into the house, they tried to kick the door in and they just decided to pick on me and they jumped on my back. I wound up with a payout for it."
That event occurred at the grandmother's house, Judy's house, at Maloney Street, Bowraville, a couple of years prior to 13 October 2016.
Later in cross examination Mr Fuller gave this evidence: "Q. You wouldn't have call Troy a good friend at the time then? At the time… A. Absolutely not. Q. And just finally, you said that he came to collect a box of his property, that he was in all sorts of trouble at that time? A. Yes. Q. Do you know what, look can you explain what you mean by that? A. He…I heard he was on the run from, from something he'd done in Barraba."
However, Tibbett's evidence is very different: "…I was very good friends with him, had been for a long time. Q. How did you come to know him? A. Through my mum and nan, he used to live down the road and then he was sleeping on their lounge and before he got a house, and, yeah. Q. Had he been had you been to that house of his before? A. Yes, I used to live with him. Q. What period of time did you live with him for? A. I don't recall exact dates but.. Q. How long roughly, a week, a month? A. I don't know, a couple of months really."
He said in evidence that that couple of months were a couple of months before the home invasion (T26.39 to 26.43). He would visit his friend, Mr Fuller, to chat, to help him with "lots of projects", work on his house, restoring his motorcycle and "fixing his cars". His last visit to Mr Fuller was a month or two prior to the home invasion to assist Mr Fuller with wiring for the ignition and with the battery on the motorcycle.
Mr Cranney commenced his cross-examination of Mr Tibbett in this fashion: "Q. You were good friends with Mr Fuller? A. Yes. Q. Very good friends you said? A. Yes. Q. You lived there before? A. Yes. Q. You'd go over for chats you said? A. Yes. Q. You'd help him with other projects? A. Yeah."
A little later in cross-examination Tibbett said that he went to visit Mr Fuller a lot of times. The evidence of the two men about their relationship is inconsistent. I have approached the evidence of Mr Fuller in this regard circumspectly as his attitude to Tibbett may have been clouded by his subsequent discovery of Tibbett's role in the home invasion, however, there is no reason to doubt Mr Fuller's credibility but as I shall soon show there are more reasons to doubt Tibbett's credibility.
The next issue which I canvassed is why Tibbett went to Fuller's house on 13 October 2016 and the circumstances in which he did so. The reason given by Tibbett for going to Mr Fuller's house on the morning of 13 October 2016 was "just to source some weed off Rick Fuller" (T28.21). By "weed" he clearly meant cannabis. There is no evidence that Mr Fuller had cannabis, used cannabis or supplied cannabis.
"Not that long" before he commenced the trip to Mr Fuller's house, Tibbett received a phone call. In cross-examination he said that he thought it came from White (T28.49). White asked for cannabis. A little earlier this evidence was given: "Q. How did the people know to come and see you for marijuana? A. …we've lived there a long time and we have always bought - once upon a time everyone was friends and we all smoked weed and stuff together as…not that uncommon a question like between yeah."
Prior to receiving the call, Tibbett had been using "ice", crystal methamphetamine. He had told police that at this time of his life he was using half a gram of that drug daily. He was not smoking it. He was injecting it. In the hours prior to receiving the call he was also "just sitting around having cuppas and stuff at home", that being his grandmother's house in Maloney Street, Bowraville.
Tibbett said he was picked up from his home by a white Landcruiser. That was driven by a man he did not know but he later told police he was a member of the Finks Outlaw Motorcycle Gang. There were already two passengers in the car, White and the accused. He said he had known White "over time" (T31.39), "over a couple of years" (T31.45). Tibbett had bought drugs off him and, paradoxically, Tibbett had supplied him with cannabis.
He did not class him as a "pal". In cross-examination, Tibbett admitted using drugs with White. He knew White as someone who was capable of violence (T40.05). He was "always in a lot of tangles" (ibid). He was staying sometimes in Bowraville and sometimes in Macksville.
White was also known, as I have earlier stated, as Kid White. "Long before" the home invasion he had stayed for a while at Tibbett's grandmother's house in Maloney Street sleeping on the lounge. This was how he knew that Tibbett had a car so White's stay at Maloney Street was after Tibbett's move to his grandmother's house. Tibbett had first met the accused "a month or so" before the home invasion (T31.50). He repeated that in cross-examination. He had met him at the house of a younger Aborigine at Nambucca Heads. That was a place where Tibbett used drugs with that Aborigine. He did say that he had used drugs with the accused (T31.36).
Tibbett was the owner of a white VS Commodore sedan bearing Queensland registration 550TKL. That vehicle was parked, I infer, usually outside his grandmother's house. He had been staying there "on and off for a couple of years since he left Tamworth when he was on bail". His staying there was interrupted by his going to gaol (T32.14). One will recall Mr Fuller's evidence that Tibbett had stayed at his house when Tibbett had first moved from Armidale, which clearly was years before 2016 not in 2016, as Mr Tibbett said.
Tibbett said that the accused had stolen his car. He could not say exactly when. In chief he said that "it could have been a week" before the home invasion (T33.34). When pressed in cross-examination, he said it was "weeks before" (T52.05 and T52.09). He denied that he sold the car to the accused on the morning of 13 October 2016 after the home invasion (T50.39), but that denial is not corroborated. Tibbett said that he reported the theft of his car to the police. If the theft had been reported to the police prior to 13 October 2016, I would expect the Crown to prove that, a matter easily susceptible of proof, but the Crown made no attempt to do so. As a result of this interaction with the accused, Tibbett admitted that he hated the accused (T37.26 and T37.33).
Tibbett gave some extraordinary evidence about his car. Despite his frequent visits to Mr Fuller's house over a period of years, too many to enumerate, he had never driven his car to Mr Fuller's house (T35.42). He had a "dirt bike" which he had bought off Mr Fuller which he used for those visits. At one time he was in company with a lady called Jane Jones and he had gone there with her in her white VS Commodore "a few times" (T36.21). He steadfastly maintained that he had never driven his car to Mr Fuller's house but could not give any acceptable reason for either why he had not done so or why he could so clearly recall that he had not done so. I found that evidence to be literally incredible.
In cross examination Tibbett said that he was too scared to refuse to take "them" to a place where he could obtain some cannabis, albeit he only spoke to White on the telephone. When he entered the white Landcruiser, White was in the front passenger seat and Tibbett occupied the rear seat behind the driver whose identity was then unknown to him. On that evidence the accused must have sat in the rear seat on the near side of the vehicle. In chief Tibbett was asked "Did you talk at all in the car?" And answered "Not really, no" at T29.17. Nevertheless, when asked in cross-examination how he knew that the driver was a member of the Finks Outlaw Motorcycle Gang he said, "Only because I overheard them talking" (T40.19).
The circumstances of the journey to Mr Fuller's house were the subject of lengthy cross-examination which drew attention to certain absurdities in Tibbett's evidence: "Q. …you felt that on this night Eric would be fine coming to [his] house since you were such good friends, is that right? A. Yeah, I couldn't see any harm in it, no."
A little later, this evidence was given: "In terms of the size of the deal you thought you were obtaining, is this just something for that night, is it something for later, is it a gram, is it more? A. No, just something for that night. Yeah. Q. So was it quick get in, quick get out type deal? A. Yes. That's what it was, yes. Q. There's no reason for you to hang around? A. No. Q. You thought, what, you might have been going over for a gram or something like that? A. Yeah, that's right, yeah. Q. So they asked you if you had any marijuana, you said, 'I know my good friend, Eric Fuller has some.'" A. No, I said at that hour of the night, like, I'd be lucky to find any. Q. But you thought that Eric, being such a good friend, will be someone that would supply you? A. Yeah, that's right, and so only person that I could. Q. You had Eric's mobile number? A. I would have somewhere. Q. But you didn't call him? A. No. Q. Just thought he'd be up? A. Yeah, or I'd be able to wake him, like, it shouldn't have been a problem. Q. About 4.30, 5 in the morning? A. Yeah, we always used to get up at that hour when I was living with him."
A little bit later, this evidence was given: "Q. So you got Alistair-- A. Yeah. Q. Who you know is a drug user and a man capable of violence? A. Yeah. Q. And you've got, as you say, Neil Walker? A. Yes. Q. Who you don't really know. A. Yeah. Q. And you've got a member of the Finks? A. Yeah. Q. You're all on your way to your good friend's house? A. Yeah. Q. At 5 in the morning? A. Yes. Q. Just to score a little bit of marijuana? A. Yes. Q. When you got there, this short deal that you said wouldn't take too long, get in and get out, as you said, or as you agreed. A. Yeah. Q. The driver of the car leaves, doesn't he, as soon as he drops you off? A. Yeah, we got him to drop us there. Q. Does that make sense? A. Well, I just, I've had people drop me off at A…hundred houses, so-- Q. But you've also agreed you were just there for a 20, perhaps. A. Yeah. Q. If I can have a gram of marijuana? A. But I was just presuming that Alistair would have rung his friend to pick us back up when we were leaving, like-- Q. Do you see that this doesn't make such sense? A. I do, I see what you're saying, yes, but it - but as what I say is-- Q. What conversations did you have in the Land Cruiser on the way over to Mr Fuller's? A. Not a lot. I can't remember saying anything, really. Q. Did you see a weapon? A. No. Q. Was there any talk of motorcycles? A. No."
Shortly thereafter, Mr Cranney returned to the issue, and this evidence was given: "Q. So, you've got a member of the Finks, you've got Alistair, and you've got the man who stole a car from you, and you're taking them to your good friend, Mr Eric Fuller's house. Is that right? A. Like, well - yeah."
A little later he pointed out that this was about 5 in the morning. The picture painted is, to say the least, bizarre.
Next area of Mr Tibbett's evidence that I shall discuss concerns what occurred at Fuller's house. In chief, Tibbett said that after alighting from the Land Cruiser, they walked up to Mr Fuller's house to knock on the door. He was unaware that anyone had taken something with him. When they reached the western door, the accused, "Flipped out and kicked the door in." Tibbett was going to knock on the door, but the accused got ahead of him. The accused entered the house and White followed him in, but Tibbett did not. He saw the accused attack Mr Fuller. He was sure he had a machete in his hand, but he didn't know where it came from, and though the accused might have picked it up from Mr Fuller's veranda. "There was a lot of yelling and commotion" (T31.02). Tibbett told the other two, "Pull up."
His evidence continued in this fashion: "Q. Did they pull up? A. No. Then I was feared for my life, so I run from the premises, back to the town away from them. Q. How long do you reckon you were at Eric's house from when you got dropped off to when you started running away? A. A couple of minutes. Not - not that long. Q. About how long after the door was kicked in do you reckon you left? A. Under a minute. Like, not, yeah. Q. What did you do after you ran off? A. Just kept running back to Bowraville, to home, away from them."
I have already found that the third man, who could only be Tibbett, on his own admission, at this point in his evidence, and by his guilty plea, stayed on to aid both the stout man and the tall man load Fuller's motorcycle onto the tray of Mr Fuller's utility. This version of events by Tibbett is a deliberate material lie.
In cross-examination, Tibbett gave this evidence: "Q. You say, when you got to the house, Neil went crazy, without warning, just kicked in the door? A. Yeah. Q. You say Alistair goes in? A. Yes. Q. You now tell the police that you followed in after Alistair. A. Yeah, well, to the door, like-- Q. Not into the house? A. No, no, like, the lounge, it's a - the lounge room is only like not even from me to you. Q. Okay. You say, as you saw, as you say, Neil with a weapon, a cane cutter. A. Yeah. Q. He was running at Eric, was he? A. Yes. Q. Just take us through what you were thinking at the moment? A. I didn't know what to think. Q. You must have realised that, well, just let me put it there, you thought you were there to check up on an old friend. A. Yes. Q. Then you see the man who stole your car recently wielding a machete at your good friend, and you turned around and left? A. Yes. And then I should never have left Rick, but I didn't know what else to do, I was in fear myself. Q. This is a good friend of yours? A. Yes. Q. Who is being violently assaulted in his house and you've done nothing to assist. A. I didn't want to get chopped as well, I don't know what, what I thought. I left because I was in fear, mate. Q. And you immediately left? A. I've had a lot of - beg your pardon, sorry.? Q. You left immediately? A. Yes."
After lunch on 19 July, Tibbett admitted that he did not help out his "friend" at all. Later, this evidence was given: "Q. You left after a minute? A. Yes. Q. You actually helped put the motorcycle on the back of the car? A. Yes. Q. Didn't you? A. No, I didn't, no, I didn't. That's false. Q. And that's why your mum is upset you didn't get anything out of it? A. No. Q. Because you put all that effort in, you should have something from it? A. No. Q. You sold your Commodore to Neil Walker the next morning for $500? A. No, it's not a chance to move. Sorry, no wait. Q. You say it was stolen in the days before by Neil Walker, didn't you? A. I wasn't sure the dates. Q. Sure. But it was before the offence? A. I thought it was, yes. Q. You're having the Court believe the same Neil Walker you took to Eric's house had just stolen your car? A. Yes. I was in fear for my life and I worried about whether they'd run through my nan's house so, yes. Q. What I'm saying is that you say to this Court that Neil Walker stole your car? A. Yes. Q. Prior to the offence at Balance Tank Road? A. Yes. Q. You want this Court to believe that you have willingly taken Mr Walker, the person who has stolen your car, to Mr Fuller's house that morning? A. Yes. Q. You want us to believe that? A. I was in fear. I didn't - I didn't - I wanted them out of my life."
One must note the change in Tibbett's evidence from not seeing any harm in calling in on Mr Fuller at his home around 5am to obtain some cannabis, to only doing what he did because he was in fear of his life, and that is why he did what he did. I must also note in that passage a denial of what I have already found he actually did, another deliberate lie on oath.
Tibbett has engaged in other untruthful behaviour. The first item is this: "Q. Back in February 2017, you spoke to police and gave an initial statement, and at paragraph 12 of that statement, you said, 'Last year in 2016, I heard that Rick's bike was missing from his house. I don't know who took his motorbike. I was going to see him about it, but there was too much going on in my world and I got locked up again.' Do you agree you said that? A. Yes. Q. That's not exactly the truth, is it? A. No, it's not. Q. You knew exactly what had happened at that stage? A. Yes, I did. Q. You made a police statement in which you told a lie. Is that right? A. Yes. I was in fear and I didn't want to say anything at all."
In June 2019, Tibbett gave an induced statement to the police. He gave this evidence about that: "Q. At page 24, police say, 'Were you aware of any property being stolen from Rick's house?' 'Yeah, yeah. I heard they took shit.' 'What did you hear they took?' 'I heard they took his bloody bike and his car.' Further down the page, the police ask, 'How did you find that out?' And you say, 'It might have even been Steve.' Do you remember saying that? A. No, I don't recall saying it, but. Q. The truth is, you knew exactly what happened from your own personal experience, don't you? A. Yes. Q. Again, you weren't telling the truth to the police? A. No. I said I was in fear."
At T52.12, this evidence commenced to be given: "Q. You told the police that after your car was stolen, you never saw Neil Walker again? A. That's what I thought, yes. Q. But now you're telling the Court that you went to Mr Fuller's house with Neil? A. Because I was unsure of the time frames, yes, I did."
However, there is the possibility that, initially, Tibbett did tell the police the truth on this issue. If so, what he told me was untrue. There are two further aspects of evidence which relate to Mr Tibbett. In cross-examination, Detective Senior Constable Stewart gave this evidence: "Q. Mr Tibbett, Troy, in his interview with police, agreed that his brother had owed to an outlaw motorcycle gang? A. Yes. Q. You say that was at question 413, that you had been informed that the bike was stolen in order to cover the drug debt owed by Tibbett's brother? A. Yes. Q. Is that right? A. Yes. Q. Is that Clayton Tibbett? A. That's who I was referring to. Q. You're aware that Mr Tibbett obviously claims a member of the Finks dropped him or picked him up and took him to near Balance Tank Road? A. I believe he did say that, yes. Q. He did say that? A. Yes. Q. So, as a result of your investigations putting together this bigger picture, do you believe that members of various or certain outlaw motorcycle groups may be involved in this offence? A. I - I don't believe they were involved in the offence. I do believe that the proceeds being the motorcycle - were going to go to some gang, whether it be the Finks or another gang going to pay a debt. Q. But it was Troy's evidence that a member of the Finks had picked him up and dropped him at Balance Tank Road, is that right? A. That's what he said, from memory. Q. Is it your experience that those members of those types of groups, they are capable of levels of violence? A. Yes."
In cross-examination, Tibbett agreed that his brother had had an outstanding debt to an outlaw motorcycle gang, but said it had been "wiped" before the home invasion. And that debt had nothing to do with the home invasion. Clearly, Detective Senior Constable Stewart did not believe that. Perhaps related to that matter is the fact that Tibbett has admitted in cross examination that as a result of the home invasion, a gun was pulled on him at the Bowraville mission, but he was not prepared to tell anybody who the persons were who pulled the gun on him, because he was worried about them. (T47.47 to T48.42). Shortly afterwards, Tibbett went to Queensland to avoid certain people.
When he made his induced statement to the police in June 2019, he was still living in Queensland. My analysis of Tibbett's evidence has led me to the conclusion that he is not an accurate, reliable or honest witness. He has definitely lied about a material fact, what he did in this home invasion. I cannot accept his evidence that the accused was the stout man. Many aspects of his evidence were, frankly, ludicrous, risible, laughable. He was clearly telling untruths to protect himself, no matter how incredible they were. I will categorise his evidence as a farrago of falsehoods.

The Cane Knife

The next evidentiary material is the cane knife and the accused's use of Tibbett's car. At 4.30 am on 14 October 2016, that is, some 23 hours after the home invasion, a motorist failed to pay for petrol he had obtained from a Shell service station in Coffs Harbour and poured that fuel into a white Holden Commodore registered numbered FF02KL. That offence was investigated by Senior Constable Mark Wolinski who was then attached to the Coffs Harbour Police Station.
He obtained access to the service station's closed circuit television and obtained stills from it and circulated those still photographs to local police in order to try to identify the offender. Those still photographs are Exhibit M. It is conceded by the accused that the motorist depicted in those still photographs is him. He was driving Tibbett's car at the time in Coffs Harbour.
Senior Constable Wolinski was called to investigate another driving offence. On that same Friday 14 October 2016, he was the sole officer manning police vehicle known as Sawtell 20. He received a message at 5.17 am about a white Commodore that had crashed into a house at 12 Mackays Road, Coffs Harbour. He drove there. The house had not been damaged but a vehicle had damaged the fence on the right hand side of the house. On the other side of the fence was a park.
The house is opposite or almost opposite the end of Don Paterson Drive which makes a T-intersection with Mackays Road. The house at the top of the T-intersection is the house in question. The car had come up Don Paterson Drive, failed to turn, mounted the gutter, crossed the nature strip, struck the side fence of the house losing its left hand side mirror and continued through the park. Senior Constable Wolinski surmised that the vehicle would have reached Kotuku Street which bounds part of one side of the park.
To reach Kotuku Street he had to travel a short distance south on Mackays Road then turn left into Beryl Street. In Beryl Street he found the vehicle parked in a driveway. It was 550TKL. It had lost its front bumper and its left hand side mirror, the remaining side mirror was identical to the one the senior constable had found near the damaged fence. He saw a "machete" in the front passenger side of the vehicle. In the boot he found two backpacks. He arranged for the vehicle to be towed to a police holding yard at Woolgoolga.
One of the backpacks contained material which suggested it belonged to Braden Fitzgerald. That gentleman's statement is Exhibit R and that contains this: "In early October 2016 I had cause to be in a white Holden Commodore with a registration 550TKL (Queensland). That car was owned by Troy Tibbett. Troy lives in Maloney Street, Bowraville. I live behind him. I can't recall the exact date but I was hitchhiking back from Nambucca Heads one day and Troy picked me up in that car. Troy [took] me straight home that day. I got out of the car at his place and jumped over his back fence to my place. On that day I had a blue and green Canterbury football bag with me. In that bag was all of my personal stuff, clothes, games and some photos. I forgot that I left my bag in the car that day. I have never been in that car again and was only in it that day. I've never driven that car at all. I want to get my property back if possible and I have never seen that car again and have not seen my bag since."
The other backpack that was in the car belonged to Tibbett (T138.29). The fact that Mr Fitzgerald never saw the vehicle again and failed to realise that he had neglected to collect his backpack from it strongly suggests that it "disappeared" very shortly after he was given the lift by Tibbett, but "early October" does not greatly assist. There is no doubt that the accused was the driver of this vehicle when it left the road, collided with the fence, travelled through the park and was abandoned in Beryl Street. There was a frank admission of both traffic offences by the accused in a recorded telephone call made by him on 3 February 2017 from Cessnock Correctional Centre (call number 37322343, part of Exhibit AA, transcript MFI 6).
When Detective Senior Constable Stewart found out what Senior Constable Wolinski had ascertained, he visited the Woolgoolga holding yard, photographed the cane knife in situ (Exhibit V) and had it formally processed by Senior Constable Gill who photographed it (Exhibit D photos 9 to 14) and obtained swabs which were sent for DNA analysis. Before turning to the DNA analysis, I should discuss one other piece of evidence linking the accused to Tibbett's car and the cane knife. That came from Mr Tyrone Ross and is found also in Exhibits N and O.
On an occasion in 2016, he and his brother Amos were hitchhiking from Macksville to Nambucca Heads. It was a hot day (T 110.21). Tyrone Ross was wearing shorts and a shirt. He and his brother were going to Nambucca Heads to have a swim and then to visit their uncle, identified merely as "Stu", who gave them a lift back to Macksville. They were given a lift by a man they had not met before. He picked the Ross brothers up from the old highway on the northern side of the Macksville bridge and dropped them at Hyland Park in Nambucca Heads. Exhibit N contains this: "On Monday 13 February 2017 I was in Macksville Police Station. Whilst at the police station Detective Stuart spoke to me. He asked me about a white Holden Commodore with Queensland registration 550 TKL. I did not know that car. He then showed me a couple of photos that showed that car parked in a service station. I could see an Aboriginal bloke next to the car in the photos. I did not know the name of that person but he gave me a lift in that car one day. I can't recall the date but it was sometime in 2016. He picked me and me brother, Amos Ross, up from Macksville. We were hitchhiking from Macksville. He picked us up on the highway and dropped us at the shops at Centenary Parade at Nambucca Heads, near Hyland Park. I have never seen that person again but it was definitely the person in the photo that Detective Stuart showed me."
There is no dispute that those photos are the ones of the accused at the Shell service station in Coffs Harbour (exhibit M). When interviewed by Detective Senior Constable Stuart on 2 March 2017, Detective Senior Constable Stuart reminded Tyrone Ross about what he said on 13 February 2017 and the following questioning occurred: "Q32. And it's the case, do you agree, that you said, you were hitchhiking from - A. From Macksville to Nambucca. Me and my brother, Amos Ross, got a lift and got dropped off at the Hyland Park, Nambucca. There was a machete lying on the floor, possibly could have, coughed, could have left, fell on the machete or something, and that's basically the case. Q33. Did you touch it? A. No, I didn't touch it. Q34. Where was it in the car? A. I think it might have been in the back seat or I'm not quite sure. Q35. Where did you sit when you got in the car? A. I sat in the back seat. My brother sat in the front. I sat in the back. Q36. So in the back seat, behind the driver or behind the passenger? A. Behind the - behind the, it might be behind the driver. Yeah. Not, not quite sure. Q37. Okay, and Amos sat in the front? A. Yeah, one of them, yeah."
In oral evidence Tyrone Ross confirmed that the machete was somewhere in the back seat area of the sedan.
Exhibit E is a report from Ms Melissa Jean Hammond who is a forensic scientist at the Forensic and Analytical Science Service of the New South Wales Government at Lidcombe. She has prepared a report dated 16 December 2020. Relevantly, she reported on the swabs taken of the cane knife. Of the three swabs taken from the cane knife, two proved to be positive. One which did not give any result was a swab of machete blade. That gave a mixed DNA profile which was not suitable for comparison due to its low level and complexity. The result of the swab of the machete handle says this: "The DNA recovered is a mixture that originates from at least three individuals. Tyrone Ross…and Neil Patrick Walker…cannot be excluded as contributors to this mixture. Assuming there are three contributors, statistical calculations were carried out and the following likelihood ratios obtained: "1. It is greater than 42 billion times more likely to obtain this mixed profile if it originates from Tyrone Ross and two unknown, unrelated individuals, rather than if it originates from the three unknown, unrelated individuals in the Australian population. 2. It is greater than 100 billion times more likely to obtain this mixed profile if it originates from Neil Patrick Walker and two unknown, unrelated individuals, rather than if it originates from three unknown, unrelated individuals in the Australian population. 3. It is greater than 100 billion times more likely to obtain this mixed profile if it originates from Tyrone Ross, Neil Patrick Walker and an unknown, unrelated individual, rather than if it originates from three unknown, unrelated individuals in the Australian population." The next DNA from the additional contributor(s) is not suitable for comparison due to the low level." The result of the swab of the machete is this: "The DNA recovered has the same profile as Eric John Fuller… . It is greater than 100 billion times more likely to obtain this profile if it originates from Eric John Fuller, rather than if it originates from an unknown, unrelated individual in the Australian population.""
The accused accepts because of the result of the swab of the hook of the cane knife that this was the cane knife that was the one that was used to wound Mr Fuller.
The question then becomes the significance of the other result showing the DNA of the accused and of Tyrone Ross. In oral evidence, Ms Hammond said that in rough (as distinct to exact) numbers 50% of the DNA was from Tyrone Ross, 40% of the DNA was from the accused and 4% of the DNA was from an unknown contributor or from unknown contributors. The whereabouts of the DNA on the handle of the cane knife are unknown. The testing does not permit the identification of how the DNA found its way onto the knife's handle whether it be primary, secondary or for that matter tertiary. Ms Hammond also gave this evidence: "Q. So each is reasonably open, is there a more favourable view or opinion as to the method of transfer over one rather than the other? A. The scientific literature shows that we cannot use relative quantities of persons within a mixed DNA profile to lead to any inference as to how the DNA arrived on the surface. Q. Let me put this to you. If Tyrone Ross had touched something with his DNA on it, like a door handle or a car seat or a door frame, is it reasonably possible that he could have then minutes later deposited both [his] and Walker's DNA onto the machete if he touched it or handled that item? A. The potential for that exists, yes."
The significance of the last question is of course that Tyrone Ross did give evidence of touching a number of features of the outside and the inside of the white Holden Commodore in which he obtained a lift when it was being driven by the accused.
Ms Hammond also said that her testing does not enable one to determine when DNA was deposited on a surface. In good storage conditions DNA can be recovered "years" after deposition. If the item were kept in harsh weather conditions the DNA could break down much earlier.
There is no suggestion that Tyrone Ross was involved in this home invasion. His DNA is there because of some casual contact with the cane knife. Equally the DNA of the accused might be there because of similar casual contact or have been deposited by Tyrone Ross to the cane knife from elsewhere in the vehicle.

Phone Calls

On 3 January 2017 the accused made a call to his father's house from Cessnock Correctional Centre (part of Exhibit AA, call 36074595). His father said to the accused: "you took me machete…the one that was in me cupboard…The police told me."
In a call on 20 April 2017 from the Mid North Coast Correctional Centre (Kempsey gaol) to his brother Joseph, (part of Exhibit AA, call 39277976) the accused said this: "…dad shouldn't be saying nothing brother. He doesn't know if that's his cunt [sic, scil. machete] or not. His cunt's under the fuckin' house. What the fuck's dad doing going on about."
Out of respect for Aboriginal custom I shall not state the accused's father's name. The first thing to note is that the word "machete" is a noun which describes a large number of implements, just like the word "knife" covers a range of implements, ranging from a butter knife to a spatulate cheese knife, to a weapon wielded by Crocodile Dundee, to weapons a little bit smaller than a sword, from knives used in a normal house, to knives used by butchers in butcheries and abattoirs.
If the accused's father misplaced his "machete" it does not mean that it was a short-handled cane knife used in this home invasion. If the accused's father's implement were a short-handled cane knife and if the accused took it, his DNA might be found on it. It does not mean that his DNA was deposited on the handle of the knife when he was using it to wound Mr Fuller.
If Tibbett did sell the vehicle to the accused, as suggested by Mr Cranney in cross-examination of Tibbett, or if the accused stole Mr Tibbett's car on 13 October 2016, after the home invasion, then it could have contained the cane knife that wounded Mr Fuller. The accused could have given a lift to Tyrone Ross and his brother later on 13 October 2016, allowing Ross's DNA to be found upon it. The accused could have moved the cane knife from the back seat area to the front passenger footwell, where it was later found by the police, later on 13 October. Or the accused could have come into contact with it before Tyrone Ross. The cane knife could have moved around within the cabin of the vehicle during its off-road voyage in Coffs Harbour, very shortly before it was abandoned by the accused.
An item of evidence which excited my curiosity was Tibbett's insistence that his vehicle had never been to Mr Fuller's house, despite his desire to persuade me that he was a frequent friendly visitor to Mr Fuller. Was he trying to hide the fact that his car was used in the home invasion? If it were, that would explain how a cane knife with Mr Fuller's DNA on it came to be in the vehicle. Unknowing that the vehicle had been so used, the accused may have stolen the vehicle later that day, hence the finding of Ross's DNA on it and the DNA of the accused, by way of casual contact on a hot day.
This possibility I do not regard as being fanciful. Shortly put, the finding of the accused's DNA on the cane knife excites much suspicion, but it does not prove the Crown's case against the accused beyond reasonable doubt. However, it may do so in combination with other evidence. The other evidence relied upon by the Crown is the accused's telephone calls from prison, Exhibit AA, a transcript of which is MFI 6.
In light of Mr Cranney's submissions, I should state what little I do know from the evidence about the accused because as Mr Cranney's submissions state, "His personal circumstances add context to his utterances." The evidence of DSC Stuart contains this recent custodial history: "Released 10 June 2016 Imprisoned 29 October 2016 Released 4 July 2017 Imprisoned 19 October 2017"
I was told at the end of submissions that if the accused be acquitted, he will nevertheless remain in custody until October this year, serving the balance of a sentence because of the revocation bail.
In the phone call the accused made from Cessnock Correctional Centre on 3 February 2017 to a lady believed to be Christine Thimble, his sister, the accused discussed cars and a "business" he had.
In this, V1 is that of the accused, and V2 is that of a female believed to be his sister: "V2: Oh true, ya got a car? V1: Yeah, I got fucken three of the cunts. V2: How you do that. V1: Don't worry about what I've been doing… V2: Fuck me dead. V1: I've been earning a lot of little things. V2: Fuck me dead, jeez beat me, I got no car, I got fuck all… V1: I'll probably coming up in one. V2: Oh that's all right then. That's all right, you can drive us around. V1: Fuck the walking sis… I'm thinking I'm going to get a car. V2: Well that's what I want too, I want a fucking car too ya know.. V1: I'm just doing my thingin and bang, do all the ticking. V2: Yeah. V1: I know they got cars ticken clocken up clocken up all the little credits, then bang go around there then debt collect. Hey where them car keys? That's mine now. V2: Yeah.. V1: Until you pay your little fucken thousand or something dollar fucken thing then you get it back. They don't even bother. V2: Then you get it. They don't bother about it? V1: No, but they freak on it see. V2: Ahh. V1: See what I mean, they got a habit on it you see, well sweet then. V2: Sweet. V1: Hand the cunt over now before I hit you in the head with something you cunt, sign it over here right now, get a paper girl woman or whatever the fuck you are, go and get it now and sign this cunt over to me right now. Then I go out, put it in the glove box, and drive off with it. [Sound of laughing heard] V2: Drive off with the fucken thing [sound of further laughing heard]."
What immediately comes to mind is the accused selling drugs "on the tick", on credit, and when the debtor cannot repay, taking the debtor's car in satisfaction of the debt. Another possibility that this raises is that Tibbett, an admitted drug user, ran up a debt owed to the accused, who took his car in satisfaction of the debt, causing Tibbett to dislike the accused, perhaps encouraging him to make an allegation against the accused that might be false.
In a telephone call made on 2 May 2018 (4887 4592) when talking to his brother Joseph, the accused speaks of "doing" a sentence of eight years, which causes his brother to point out that he was in gaol for "seven years straight".
A little later the accused says, "I've been in gaol since I was 18." A little later he said he was 38 years old. From his prison call on 3 February 2017 I know that his birthday is 3 February. A little later he said this: "The only times I been coming back is because I been breaching parole n that."
The inference to be drawn is that the accused, over the past 20 years now has been in and out of goal, or has in the past served at least one lengthy custodial sentence. In summary, the accused is an Aboriginal man from the Nambucca River valley around 40 years old with a long association with the Police, the justice system, and Corrective Services; a man the Police might readily suspect of committing crimes, a man who probably has had an unhappy relationship with the Police, a man who would know that calls from gaol were being recorded; a man who would be wary and suspicious, a man who would seek to avoid incrimination and incarceration, a man who probably on myriad occasions had been told not to talk to Police, and would tell others the same thing.
I turn now to each of the calls relied upon by the Crown. Firstly, the call of 17 December 2016, 3607 4595. In this call V1 is that of the accused, V2 is that of his father, and V3 is that of his brother Joseph Walker. That call contains this: "V3: The detectives came here last night, came here last, the other day. V1: What for? V3: Don't know, they talking about an incident. Umm an armed rob or something they talking about. V1: Yeah. V3: Yeah. V1: Fucken hell. What are they fucken doing that for? I don't know nothing about them cunts. V3: Yeah. V1: What then young cunts do around the valley. Why what happened? What did they say? V3: No they, the detective said that you and another fella Mark Tibbett done an armed rob or somen. V1: Mark Tibbett, I don't even know a Mark fucken Tibbett. V3: Yeah. V1: Troy. Or some cunt. V3: We said we don't know nothing about it. V1: Yeah. V3: We never heard nothing… V1: Yeah that's what I mean, I don't even know the cunt. That's them young cunts around the valley see, cousins see they don't know how to fucken fuck off. They're going do shit like that. Cause that blames all of us then and that ya know. Cause we all look the same. V3: That's right. V1: All our nephews and cousins and that stupid little cunt. V3: Yes the cunts. V1: Yeah you know. Fuck that I've been in Coffs, fuck that. V3: That's right, you were in Coffs Harbour. V1: That's right. V3: With your woman. V1: That's right dark. I know nothing about those cunts, well I travel on the bus, that's it, down to see dad and see everybody, what's he's doing, and go back home."
The Crown submits that this is admission of knowing Troy Tibbett. It can only be taken as an admission of knowing of Troy Tibbett. The Crown submits that the mention of being in Coffs Harbour is an attempt to create a false alibi, which indicates a consciousness of guilt. Equally, it could indicate the accused telling his brother what his usual routine was during his period of freedom between 10 June 2016 and 29 October 2016; of staying with his girlfriend in Coffs Harbour, and travelling to visit his father in Nambucca Heads.
Furthermore, the submission that the accused was seeking to create a false alibi assumes that the accused is guilty and that he is aware that his call is being recorded. The first assumption is impermissible, and the second assumption is inconsistent with other submissions concerning the calls made by the Crown. On the other hand, the defence submits that the accused is making a valid point of being included in an Aboriginal sub-class and therefore assumed to be guilty because he's a well-known member of that sub-class.
The second call was made on 3 January 2017. It is number 36521371. In this call V1 is the voice of Neil Walker. V2 is the that of his father, and V3 is that of his brother Joseph Walker. It is this: "V1: Hello. V2: Who's speaking? V1: Ah, your son. It's my birthday today, ringing up for my birthday. V2: You was my son. V1: What, what? V2: You stole all those things of me. V1: What? V2: All them things. V1: What things? V2: My jewellery. My jewellery. V1: No, I never, only got them fucking silver ones. V2: Yes. V1: That's all I got on me. V2: And you took me machete. V1: The what? V2: The one that was in me cupboard. V1: No, it's right, dad it's right. Don't fucking mention that over the fucking phone. V2: They told me. The police told me. V1: Don't worry about telling them that man fucking hell dad. V2: Here, talk to your brother. V1: Don't go saying nothen to him man, shit. V2: Here. V3: Hello. V1: Oi, don't say dad told them that I had, that I got it? V3: No, he never said anything. V1: What do you mean brother, that's fucked man if he does. V3: No, the police came here looking here for that car. V1: What fucking car? Don't worry about that that's fine, what else man. V3: And they said they were investigating a home invasion, something they reckon. V1: Yeah, I know all that. But what did fucking dad open his fucking about. V3: I don't know what he's on about. V1: He never talked to them? No, we never talked to them. V1: Don't tell him to say that he owned that cunt there or I'll be fucked. V3: No, we never said anything. V1: Yeah, don't tell him to say that he owned that fucking thing. V3: No. No, we never said nothing. V1: I know because I didn't do fucking nothing. V3: I know you never it was all them young fellows, Mart Tibbett, and all them fellows - young fellows. V1: I don't even know them my brother, that's just fucked my day up, man. Talking like that saying I stole all of them. He's a cunt that put the cuts on my finger, does this fit you, does this fit you, I still got the fuckers. V3: Yeah. V1: Ah, well, tell him he can shove fucking everything up his fucking arse then. Joseph, I mean, that cunt. V3: Yes. V1: Don't expect me to fucking be there for him. He's going to carry on like this. Fuck that I rang up because it's my fucking birthday today I turn thirty-fucking-seven and he's the only one that wants to talk fucking shit to me. V3: Oh, it's your birthday today. V1: Yeah, brother and now I'm going to have a fucking shit day because of that fuckhead. This is fucked, bruz. V3: Yeah."
There was then a short discussion of unrelated family matters. And the call ends with this utterance: "V1: Don't talk brother, you don't say nothing, fucking say yeah, that's mine and I'll be fucked then. About the snay lay, the blade you know. I'm not saying no more I got to get off this phone brother. All right, love you."
The Crown relies on the accused's reaction to the statement made by his father that the accused had stolen his machete to establish consciousness of guilt presupposing, of course, that the father's machete was, in fact, the cane knife used to wound Mr Fuller, a presumption that cannot be made. The Crown made this submission: "iii, it is suggested that he fails to deny the allegation made by his father which he might reasonably be expected to do, and instead, aware the call is being recorded attempts to stop further discussion on the topic; McKey v R [2012] NSWCCA 1 at [26] referring to R v MMJ: cited with approval in Holt v The Queen [2021] NSWCCA 140 at 158: "iv: Silence of an accused in the face of an accusation by a civilian (other than a police officer) may constitute adoption, but the use of such silence in such circumstances may require a direction that the finder of fact must be able to exclude any rational explanation consistent with innocence before silence is used as evidence of guilt: McKey v R [2012] NSWCCA 1 at [42]."" No other explanation has been put forward on behalf of the accused. "v: Similarly, in the same call, the accused says: "Don't tell him to say that he owned that cunt there or I'll be fucked." This is intent to influence potential witnesses, such essential witnesses, which in McKey was also held to be capable of amounting to consciousness of guilt. vi: Beyond the mere words, the strength of the reaction is also evidence of his awareness of the significance of the machete in the case against him. On the other hand, the accused remonstrates with his father about talking, at all, to the police. His brother then takes the phone from the father and raises a new issue, 'that car,' an issue which then bemused the accused and still amuses me. There is then a general denial: "I didn't do fucken nothing.""
His brother then raises: 'Matt Tibbett,' obviously a reference to Martin Tibbett. The accused then denies knowing, 'them,' probably meaning those who performed the home invasion raised by his brother as the topic of police inquiries. There was then a complaint about the accused's birthday being ruined and after a short talk about family matters, some strong advice given by the accused to his brother, not to talk to the police especially about the, 'snay' blay, the matter, 'snay,' is unintelligible to me and the Crown did not seek to try to explain what it might mean.
In the phone call of 20 April 2017, as I've already pointed out, the accused tells his brother that his father could not know whether his machete was the weapon used in the home invasion and that his father's machete was under the house. When one listens to both the calls of 3 February and 20 April, one can understand that the accused, having time to think about his father's machete, realised where it was and how incomplete information might be used to the accused's disadvantage.
What comes through clearly, in the call of 3 February, is the accused being upset that a family member would say anything to or cooperate with the Police, a point one would expect him to adopt given his background. As the utterances relied upon by the Crown can be seen in a light other than consciousness of guilt, I must decline to accede the Crown's submission.
The third call was made on 3 February 2017, number 37322343. This is the call thought to have been made by the accused to his sister, Christine Thimble. It's the call in which the accused discussed his car "business" which I've already quoted and his admission of being the driver of Tibbett's white Commodore sedan on 14 October 2016.
The Crown's submissions about that call include this: "x: It is … direct evidence of his state of mind at the relevant time, namely that he is a person who's, 'business,' is collecting personal property in satisfaction of debts accompanied by violence."
This is consistent with what was put to Mr Tibbett in cross examination, namely that the taking of the motorcycle was in order to satisfy a debt. This submission is not made to invite tendency reasoning, the Crown relies on it as an admission as to the activities engaged in by the accused during the relevant period. This admission is also consistent with Tibbett's allegation that the accused stole his car. "xiii: It might also be thought that, 'doing my business,' might refer to the, "business," a demand in property under threat of violence referred to earlier in the conversation, and therefore, amounts to an implied admission as to his involvement in the offences."
Despite what the Crown has submitted, it is, in fact, asking the Court to use this evidence as tendency evidence. Were there a jury, I would be required to direct it not to use the evidence as showing a propensity of the accused to demand property from another under pretext of right, either with threats of violence or with actual violence. In any event, this is not, in my view, a form of similar fact evidence. There is a valid distinction to be drawn between a man doing his own debt collecting, using threats of violence, to a man acting as a debt collector for another using actual violence.
What the accused is seen to admit is the former and not the latter. Of course, submitting that this is evidence of the accused's state of mind at the time of the offence, presupposes that the stout man was the accused, when the Crown is seeking to prove that the stout man was the accused. I am unable to accede to the Crown's submissions concerning this aspect of that telephone call.
The fourth call was made on 20 April 2017, call number 39277976. The Crown's submissions on that call are this: "The call of 20 April 2017 is of similar significance. In it, Joseph Walker tells the accused that Detectives have attended and that [their father] has told them that machete is his. This statement, having been admitted without objection, is relied on as to its truth. Similarly the attempt to influence his father and brother not to 'say anything' is relied on as consciousness of guilt. In particular, the statement: "They are fucked going to need it back," and that he will:, "Be doing 15 to 20 years," indicates an awareness of the seriousness of the offending to which the machete relates, and the potential for the machete to be linked to him. This is at a time before he has any awareness of his DNA being on the blade."
The call is essentially one between the accused and his brother, Joseph Walker. Their father can be heard asking Joseph to whom he was speaking but says nothing further. The first substantive thing said by Joseph was this: "Detectives come here … talking about Mark Tibbett, reckon you stole Mark Tibbett's car … he reckons that Mark Tibbett blamed you for stealing his car … They investigating it, they now. They went about 10 minutes ago."
This drew this response from the accused: "Yeah, fuck em, brother. Don't tell him shit. I never done, I don't even know Mark Tibbett."
The last statement is perfectly correct as the Crown concedes that there is no Mark Tibbett. Joseph Walker may have misheard Martin Tibbett as Mark Tibbett. There is then a long and as usual colourful protestation by the accused that the police were seeking to establish that he committed crimes which he did not commit. The call then continues in this fashion: "V2 Nah, they just told me about that car and everything. V1 And what else? What do you mean everything? V2 The machete and that. They found the machete in the car. V1 Yeah, what about it? What did dad say? V2 Dad said it was his. V1 Don't do that man. V2 Yeah, dad said it was his. V1 Tell dad, don't tell him that, brother. Fuck man, you don't say shit, man. V2 That's what dad said. V1 That's going to get me fucked up, man. V2 No, we going to put it on Mark Tibbett. V1 I don't give a fuck, brother. You don't say shit about that. Tell dad to shut his cunt up, man. Brother. ……….. V1 You don't tell nothing to those cunts, man. You should know that, brother. He should know that. For all his life, he's not to say fucken shit. What the fuck. V2 Yeah. V1 You're going to get me fucked up, man. V2 No. V1 I mean it brother. I know, I know, cunt. I've been doing this gaol for a long time. V2 Yeah. ……….. V1 No, never mind, brother. Fuck, you tell him to say nothing about it, please brother. V2 Yeah. V1 Fuck man, they are fucken going to link it back and fucking thing, brother, I'm going to be doing 15, 16 fucken years, brother. V2 No. No, you won't. V1 No, you don't know nothing, brother. I do, brother. I know what the fuck happened. Why they are doing that. V2 Put it on Mark Tibbett. V1 No, brother, you don't under fucken stand, you dumb .. V2 Put it on him. V1 I don't - I'm not doing nothing, brother. Don't tell me that, shut up, brother. Don't say nothing about the cunt now. It's got nothing to do with you. Just … brother. V2 I'll put your money tomorrow. V1 Thank you, brother, thank you. Fucken dad should be saying nothing, brother. He doesn't know if that's his cunt or not. His cunt's under the fucken house. What the fuck is dad going on about. You don't tell the cunts, brother. You're just sinking a hole for me man. Explain it to dad, tell him not to say shit. V2: Yeah. V1: You just fucked my afternoon up bruz. True as cunt my brother. Telling me shit like that and he spoke to them. Don't tell them how the fuck does he know what that's his anyway bro. He don't know. He's only just saying. V2: Yeah. V1: Fuck brother, I am telling you brother, I'm, I'm telling you dark, he's going to get me fucked if he keeps opening his cunt. V2: I told them you'd come here, Mark Tibbett… V1: I don't even, brother…you're not… V2: Dad never said nothing. V1: No, I don't care brother, he's saying that's his, you know what I mean brother. That's linked to every other fuckin' shit. Can't say nothing on the fuckin' phone anyway brother. Fuck man. V2: Don't worry about it, don't worry about it then. V1: Fuck bruz. V2: Just get yourself set up. V1: How am I going to do that brother. I am fuckin' stuck in here. I can't get out. They're going to come and charge with some fucking serious shit, if they find it brother, 'cause of dad saying it's his. Fucking idiot linking me. Don't worry brother, it's all right. I love you anyway brother. I will ring youse up around lunchtime anyway brah. ………. V1: Doesn't know how to shut his cunt up. I love he means the world, I love him but I just upset those cunts come there that's all."
Firstly, one must note the repeated suggestion of Joseph Walker that the accused and he should try to inculpate "Mark" Tibbett in order to exculpate the accused, or to use the vernacular, to frame "Mark" Tibbett. But the accused, to his credit, is not at all interested in doing that. Secondly, one must note the accused's repeated refrain that no family member, particularly his father, should talk to or cooperate with the Police, a topic I have previously discussed and need not reiterate.
Thirdly, when closely analysed, one can see the accused saying that his father is telling the police that his machete has been taken might be used to implicate the accused in a serious crime, which has a crime which could incur a gaol sentence of 15 or 16 years, which in the next call is "doing…double figures". Given the accused's background one would expect him to have some idea of sentencing patterns, without having recourse to the statistics kept by the Judicial Commission.
As the accused's utterances in this call could be viewed as complaints about the investigating process and about his father's cooperating with the police to the accused's disadvantage, I cannot accept that they are evidence of consciousness of guilt.
The fifth call is that of 24 April 2017, number 39388625. The Crown submits that the call, made four days after the last call I have just discussed, demonstrates that the accused remained concerned about the "machete" being linked to him and that he would be doing "double figures" if it were linked to him. This call was thought to be made to the accused's sister, Christine Thimble, and contained a complaint by the accused about their father talking to the police about "a machete" and of the potential for the accused to be doing "double figures" if he is found guilty "after a fight". That is, after a trial at which he pleaded not guilty. This does not advance the Crown's submission any further, in my view.
The final call is that of 2 May 2018, number 48874592. The Crown submits that this is significant because when denying his involvement in the home invasion the accused says, "They got nothing on me, no evidence on me, I was in gaol two years ago." The accused was at liberty, between 10 June 2016 and 29 October 2016, and this was an attempt to set up a false alibi, which amounts to a consciousness of guilt.
With the utmost respect, the Crown was clutching at a straw. Two years before 2 May 2018 the accused was in gaol. Furthermore, this would be the easiest of alibis to disprove. Corrective Services are very, very good at keeping records, not only of when persons are in gaol, but also where they are in gaol and what they were doing from time to time.
I have no doubt that a person in the accused's position, to use the vernacular, an "old lag", would be aware of that fact. There is no suggestion that the accused raised such an alibi to, for example, arresting police or lawyers. I reject the Crown's submission in this regard.
There is a further piece of evidence which I should discuss, although it does not speak of the accused's alleged guilt. At the behest of the defence the Crown tendered a lawfully intercepted telephone call between Ms Joanne Austin, Martin Troy Tibbett's mother, and William Tibbett, his cousin, on 3 July 2017. That lawfully intercepted telephone call is Exhibit X and a transcript of it is MFI 5. The significance of this phone call is best seen in evidence given by Detective Senior Constable Stuart in cross-examination: "Q. Obviously police came to suspect Mr Troy Tibbett's involvement in this home invasion, as a result there was a listening device warrant? A. Yes. Q. We've heard those calls. I'll draw your attention back into that conversation between Joanne Austin and William Tibbett on 3 July? A. Yes. Q. And to the interview you had with Troy Tibbett. It's the case that Joanne Austin remarks to William Tibbett over the phone that Troy did not receive anything for the bike, is that right? A. In the conversation I recall he didn't get anything from it. Q. Yes, sorry .. A. Yes. Q. .. thank you for that. That's something that you put in your ERISP to Troy Tibbett? A. Yes, I believe so, yes. Q. William Tibbett on that 3 July conversation seems to be of the opinion that Alistair White ripped Troy Tibbett off for the Harley job and then left a machete in Troy's car? A. That's what he says. Q. That's what he says? HIS HONOUR: Sorry, what was that again? CRANNEY: That William Tibbett was speaking to Joanne Austin seems to be of the opinion on page 1 of that conversation that Alistair White ripped Troy Tibbett off for "The Harley job" and then left the machete in Troy's car. Q. There's also a conversation between the pair that Alistair White, or it was believed that Alistair White had been assaulted by members of the Outlaw Motorcycle Gang? A. Yes. Q. That may have been the impetus for him to get in touch with Troy about doing "the Harley job"? A. Yeah, I think they refer to it as, as a set-up or similar."
Furthermore, the accused is not mentioned in this call at all. This suggests, and I cannot use any stronger verb, that Martin Troy Tibbett did not tell his mother the name of the accused because he was the stout man. However, it is possible that Martin Troy Tibbett did so but his mother forgot the name, a common human failing. The closest thing to describing the accused is "the Koori lad", which does not really assist, except that one would not, using idiomatic English, refer to a man in his late 30s as a "lad".

Verdict

For all these reasons I am not persuaded beyond reasonable doubt that the accused was the stout man, the principal actor in the home invasion at Mr Fuller's home as is alleged by the Crown.
Neil Patrick Walker, could you please stand up, please, sir, and remove your mask? On the charge that on 13 October 2016 at Bowraville in this State you did break and enter the dwelling house of Eric Fuller at 89A Balance Tank Road, and then in the said dwelling did commit a serious indictable offence, namely steal a motor vehicle, namely a Harley Davidson motorcycle in circumstances of special aggravation, namely that the said Neil Patrick Walker was in company with Alistair White and did intentionally wound Eric Fuller, I find you not guilty.
On the charge that on 13 October 2016 at Bowraville in this State you did steal a motor vehicle, namely a Holden utility with New South Wales registration BX 80 DD, I find you not guilty.
On each of those charges you are acquitted.

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