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[2026] NSWCCA 99
Court of Criminal Appeal (NSW)
2026-07-03
Ward P at [1] Sweeney J at [2] Emmett J at [3]
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Steele v R [2026] NSWCCA 99
Hearing dates: 22 June 2026
Date of orders: 03 July 2026
Decision date: 03 July 2026
Before: Ward P at [1]
Sweeney J at [2]
Emmett J at [3]
Decision: (1) Pursuant to s 10(1)(b) of the Criminal Appeal Act 1912 (NSW), extend time for bringing the application to 4 March 2026.
(2) Leave to appeal granted.
(3) Appeal dismissed.
Catchwords: CRIME — Appeals — Appeal against conviction — Extension of time in which to appeal — application brought over 18 months after conviction — where no satisfactory explanation for delay advanced — public interest in adhering to time limit on appeals or applications for leave — whether extension of time should be refused
CRIME — Appeals — Appeal against conviction — Unreasonable verdict — where applicant charged on three different counts — where jury returned verdicts of guilty in relation to counts 1 and 3 and verdict of not guilty in relation to count 2 — whether acquittal in respect of count 2 necessarily involved a reasonable doubt as to the credibility of a witness — whether reasonable doubt as to that witness’ credibility required a conclusion that there was reasonable doubt in respect of counts 1 and 3 — whether jury, acting rationally and in accordance with directions, had a proper basis for finding counts 1 and 3 proven beyond reasonable doubt while acquitting the applicant in respect of count 2
Original judgment source is linked above.
Legislation Cited: Crimes Act 1900 (NSW), ss 35, 86, 97
Criminal Appeal Act 1912 (NSW), s 10
Cases Cited: AH v R [2019] NSWCCA 152
DB v R [2026] NSWCCA 29
Ganji v R [2019] NSWCCA 208
Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56
Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
R v Kirkman (1987) 44 SASR 591
Category: Principal judgment
Parties: Bailey Steele (Applicant)
Rex (Respondent)
Representation: Counsel:
D Carroll (Applicant)
M Knowles/ A Wilczek (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2022/00213630
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
The applicant, Bailey Steele, was found guilty by a jury of the following two offences:
(1) detain in company with intent to intimidate, with actual bodily harm occasioned, contrary to s 86(3) of the Crimes Act 1900 (NSW) (count 1); and
(2) robbery in respect of cash and a gold watch, contrary to s 97(1) of the Crimes Act (count 3).
In the same proceedings, the jury acquitted the applicant of a charge of recklessly wounding in company, contrary to s 35(3) of the Crimes Act (count 2).
The applicant sought leave to appeal against the conviction on a single ground, being that the verdicts of guilty in relation to counts 1 and 3 were inconsistent with the verdict of not guilty in relation to count 2. The applicant said that the acquittal in respect of count 2 necessarily involved a reasonable doubt as to the credibility of one of the witnesses, RS, and that this reasonable doubt as to RS’ credibility required a conclusion that there was reasonable doubt in respect of counts 1 and 3.
The Court (Emmett J, Ward P and Sweeney J agreeing) held, granting leave to appeal and dismissing the appeal:
(1) The application was brought out of time, and over 18 months after the applicant was convicted. One of the reasons why there is a time limit on appeals or applications for leave, especially where a conviction is challenged, is that if an appeal against conviction is allowed and a retrial ordered, the passage of time can be productive of prejudice not only to the applicant, but to complainants and to the community at large. Legal representatives should not assume that the Court will grant an extension whenever it is sought. In an appropriate case, an extension of time may be refused: [7]-[10].
(2) In the present case, the delay could not be laid at the feet of the applicant personally. The circumstances of the case warrant an extension of time and a grant of leave to appeal: [10]-[11].
(3) The Crown case was not left to the jury on the basis that the jury could only convict if they accepted the entirety of RS’ evidence so far as it concerned each count: [35], [85].
(4) The trial judge’s directions to the jury made it clear that they should consider all of the evidence in respect of each count, and it was a matter for them whether to accept or reject a witness’ evidence in whole or in part: [77]-[78].
(5) The evidence in respect of each count was different. On the evidence there were grounds on which a jury could have reasonable doubt in respect of count 2 which did not operate in relation to counts 1 or 3. There were several rational ways in which the jury, acting properly and in accordance with its directions, may have been satisfied beyond reasonable doubt in respect of counts 1 and 3, while not being so satisfied in respect of count 2: [86]-[97].
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, applied.
Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35; R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35; R v Kirkman (1987) 44 SASR 591; AH v R [2019] NSWCCA 152; DB v R [2026] NSWCCA 29; Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56, cited.
WARD P: I agree with Emmett J, for the comprehensive reasons his Honour gives, that the necessary extension of time should be granted as should leave be granted for the appeal but that the appeal should be dismissed. I have carried out my own review of the trial record and I am not persuaded that the verdicts on counts 1 and 3 are inconsistent with that on count 2. Further, I endorse his Honour’s exhortation for the profession to comply with applicable timetables and not to assume that an extension of time will automatically be granted where there is a failure to do so.
SWEENEY J: I have had the benefit of reading in draft the reasons of Emmett J. I am grateful for his Honour’s exposition of the evidence in the trial and the issues arising from the ground of appeal. I agree with the orders proposed by his Honour and his Honour’s reasons for those orders. Having conducted my own assessment of the evidence I am of the view that the jury’s verdicts of guilty on counts 1 and 3 were not inconsistent with the acquittal on count 2.
EMMETT J: This is an application for leave to appeal against conviction on 17 July 2024 for two offences:
detain in company with intent to intimidate, with actual bodily harm occasioned, contrary to s 86(3) of the Crimes Act 1900 (NSW) (count 1); and
robbery in respect of cash and a gold watch, contrary to s 97(1) of the Crimes Act (count 3).
At the same time, the jury returned a verdict of not guilty on a charge of recklessly wounding in company, contrary to s 35(3) of the Crimes Act (count 2).
The applicant seeks leave to appeal on a single ground, being that the verdicts of guilty in relation to counts 1 and 3 are inconsistent with the verdict of not guilty in relation to count 2. Leave to appeal is required because this ground does not involve a question of law alone: s 5(1) of the Criminal Appeal Act 1912 (NSW). The applicant says that the acquittal in respect of count 2 necessarily involved a reasonable doubt as to the credibility of one of the witnesses, RS, and that this reasonable doubt as to RS’ credibility required a conclusion that there was reasonable doubt in respect of counts 1 and 3.
For the reasons that follow, this should not be accepted. There were several independent ways in which the jury, acting rationally and in accordance with the trial judge’s directions, had a proper basis for finding counts 1 and 3 proven beyond reasonable doubt while acquitting the applicant in respect of count 2.
This application was brought on 4 March 2026, over 18 months after the applicant was convicted. The explanation for the delay leaves something to be desired.
The applicant filed a notice of intention to appeal against his conviction on 13 November 2024, which was less than three weeks after the applicant was sentenced and therefore within the time limit in s 10(1)(a) of the Criminal Appeal Act. There followed, in fairness to the applicant, an extended period where the applicant’s legal representatives were endeavouring to obtain all relevant material, including in relation to a possible appeal against sentence. On the evidence, the brief was completed on 16 July 2025. After that, the delay was because the solicitor with carriage of the matter had a heavy case load and did not begin considering the brief until October 2025. Counsel was briefed on 22 October 2025, but did not provide submissions until 27 February 2026. The only explanation for this is that counsel became engaged in trials during November and early December, and then the shutdown period over December 2025 and January 2026 intervened.
This is not a satisfactory explanation. The Court recognises the burden on solicitors and counsel given the various demands on their time professionally and personally. The Court also recognises that solicitors and counsel often cannot predict when some matters will require substantial attention. Lawyers with the best will in the world occasionally find themselves with unexpected demands on their time in relation to existing matters in which they hold a brief. That may have occurred in this case, and the Court makes no specific criticism of the solicitors or counsel involved in this case. Nevertheless, the applicant’s legal team knew that by the time the complete brief was obtained, it was already approximately 12 months since the applicant’s conviction. The Court is left with a concern that the matter was not approached with the urgency that the situation warranted. One of the reasons why there is a time limit on appeals or applications for leave, especially where a conviction is challenged, is that if an appeal against conviction is allowed and a retrial ordered, the passage of time can be productive of prejudice not only to the applicant, but to complainants and to the community at large. Legal representatives should not assume that this Court will grant an extension whenever it is sought. In an appropriate case, an extension of time may be refused, especially if (for example) the Crown points to circumstances associated with the delay which would cause real prejudice to any retrial that might be ordered.
In the present case, it does not appear that any of the delay could be laid at the applicant’s feet personally. The Crown does not oppose the extension of time if the Court finds that the appeal otherwise has merit, and does not point to any specific prejudice. Notwithstanding the substantial delay without a satisfactory explanation, the preferable course in this case is to grant the extension.
As for whether leave to appeal should be granted, the applicant has been convicted of serious offences and is serving a significant sentence of imprisonment. The interests of justice, including the interest in finality, are better served by leave being allowed and the appeal being dealt with on its merits.
Where it is asserted that guilty verdicts are inconsistent with acquittals on other counts, an applicant must satisfy the Court that the two verdicts cannot stand together, that is, that no reasonable jury who had applied their minds properly to the facts of the case could have arrived at the conclusion: Mackenzie v The Queen (1996) 190 CLR 348 at 366 (Gaudron, Gummow and Kirby JJ); [1996] HCA 35 (‘Mackenzie’).
If there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted: Mackenzie at 367. The jury’s verdict should only be overturned on the basis of unreasonableness in the form of factual inconsistency where the outcome on different counts involves “an affront to logic and commonsense”: Mackenzie at 368; DB v R [2026] NSWCCA 29 at [18]. Due respect must be given to the constitutional role of the jury as representative of the community: MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 (‘MFA’) at [34]; R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65].
In Barney v R [2023] NSWCCA 85 (‘Barney’) at [11], Kirk JA (N Adams J and McNaughton JJ agreeing) referred to a range of possible explanations for why a jury may reach different verdicts. They include that a jury might take “a ‘merciful’ view of the facts upon one count, a function which has always been open to, and often exercised by, juries”. Similarly, a jury may exercise a sense of compassion or proportion, concluding that although a number of counts have been technically proved, “justice is sufficiently met by convicting him of less than the full number”.
In Mackenzie at 367-368, Gaudron, Gummow and Kirby J cited and agreed with the observations of King CJ (Olsson and O’Loughlin JJ agreeing) in R v Kirkman (1987) 44 SASR 591 (‘Kirkman’) at 593 that:
[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty.
In AH v R [2019] NSWCCA 152 at [62], Simpson AJA observed that “differential verdicts, far from providing an indication that a jury has fallen down in its task, may very often provide the basis for confidence that the jury has done precisely what it has been instructed to do: consider each count separately and reach a verdict on that count, on the evidence relevant to that count”.
The appellate court should remain conscious of the advantages of the jury, given the limitations of the written record when it comes to capturing all the subtle qualities of the evidence heard by a jury: DB v R [2026] NSWCCA 29 at [17], per Free JA, Fagan and Huggett JJ, and see the cases cited there.
In Ganji v R [2019] NSWCCA 208 at [9], Basten JA stressed (Button and Lonergan JJ agreeing) that “credibility” is not necessarily a single discrete finding made with respect to a witness “with equal levels of conviction or uncertainty in relation to all aspects of her evidence. The jury is not directed to ask themselves whether they believe her or not; it is asked to determine whether they accept her statements in evidence as to the elements of each offence to be true beyond reasonable doubt”. His Honour went on to say at [13] that where it is said that several counts depended upon the jury accepting the evidence of a particular witness, “it is necessary to have careful regard to the surrounding circumstances in order to determine whether there is a rational basis upon which it was open to the jury to accept the complainant with respect to one aspect of [their] evidence, but not with respect to other aspects”.
In Barney at [19], Kirk JA said of a witness whose credibility (as distinct from reliability) is challenged:
When a witness is found not to be credible in the narrower sense of truthfulness, this will often taint the entirety of their evidence. That said, there can be cases where doubts about credibility do not undermine the whole of the witness’s evidence, for example where they had a motive not to tell the truth only on one particular issue. Further, issues of degree can arise with credibility. The trier of fact might conclude for example that in some evidence, only, “the complainant or central witness resorted to a degree of exaggeration in order to reinforce his or her account”: Markuleski at [235(e)]. Such a case is obviously quite different from a case where one complaint is found to have been fabricated; such dishonesty may be so significant as to undermine the credibility of the whole of the complainant’s evidence.
In general, an adverse view of the credibility of a witness is likely to have more far-reaching consequences than an adverse view of reliability. If a witness is prepared to be less than honest in giving evidence in a significant way, despite their serious obligations to be so, then it may be difficult to delineate what evidence is believable and what is not. As a result, all their evidence supporting the side they have an interest in supporting may be of suspect value to the extent it is uncorroborated, unless it can be explained and quarantined or discounted.
In other words, a particular motive to lie might lead to the jury regarding particular evidence, even if dishonest, as being “explained and quarantined”. Alternatively, the jury may decide to regard evidence as suspect unless it is corroborated, but to treat the evidence as having value if it is corroborated.
In many cases, what may be decisive is whether there is something in the witness’ evidence or the surrounding circumstances which gives a ground for supposing that the evidence is more reliable in relation to some counts than it is in relation to others: Jones v The Queen (1997) 191 CLR 439 at 453 (Gaudron, McHugh and Gummow JJ); [1997] HCA 56. In MFA at [34], Gleeson CJ, Hayne and Callinan JJ specifically adverted to the possibility that a jury “might consider it more probable than not that a [witness] is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt”.
The various considerations that bear on a jury’s proper decision to convict on some counts but acquit on others do not operate in isolation. In MFA at [34], Gleeson CJ, Hayne and Callinan JJ said that there may be an interaction between (1) the importance of the jury giving separate consideration to each count, (2) the jury’s recognition of the heavy burden of proof undertaken by the prosecution, and (3) the permissibility of the jury considering that although a number of offences have been alleged, justice is met by convicting the accused of only some of them.
The prosecution case was that the complainant, Mr Tarasenko, was abducted from the street while walking home from Terrigal by three men; RS, Darius Bagang and Ethan Gualdi, in the early hours of 12 February 2022. The reason for the abduction was said to be a dispute over a drug debt (which Mr Tarasenko denied he owed) between Mr Tarasenko and one of the other persons involved in the abduction, Brock Pearson.
The men forced Mr Tarasenko into a Holden Rodeo ute and drove to a location nearby where they met with another vehicle, a Chrysler 300C, being driven by Mr Pearson. Three other men were in the Chrysler, being the applicant, Mr Missingham (who was the applicant’s co-accused at trial) and Hayden Taylor. The two vehicles drove in convoy to Crackneck Point lookout, a clifftop location on the Central Coast.
Mr Tarasenko was allegedly assaulted in the Holden Rodeo and further after the group arrived at the lookout (count 1). At some point during the evening, Mr Tarasenko received knife wounds to his left ear and left hand (count 2). The Crown’s primary case on count 2 was that, after both groups of men arrived at Crackneck Point, the applicant himself attacked Mr Tarasenko with a knife, causing the wounds to his ear and hand. The Crown’s alternative case was that the applicant was party to the joint criminal enterprise in which Mr Tarasenko was wounded at Crackneck Point lookout in the manner alleged.
After the assault, the prosecution case is that the co-offenders saw messages in Mr Tarasenko’s phone with Mr Alamango about cocaine. They used the phone to orchestrate a meeting with Mr Alamango, ostensibly for Mr Tarasenko to purchase cocaine. Five of the co-offenders, including the applicant and Mr Missingham, met with Mr Alamango at a pre-arranged location, where they robbed him of cocaine, money and a watch (count 3). They travelled in the Holden Rodeo, driven by RS. When the co-offenders arrived at the agreed meeting point, two of the men got out of the vehicle and hid so that Mr Alamango would not become suspicious about a carload of people. When Mr Alamango got into the vehicle, the two men got back into the car. The offenders assaulted Mr Alamango and took his cocaine. One of the offenders held a knife to Mr Alamango’s face. They then drove to Mr Alamango’s apartment, where two of the men went up to Mr Alamango’s apartment with him and robbed him of cash and the gold watch.
The prosecution case against the applicant, as ultimately distilled in the trial judge’s direction, was that the applicant participated in the joint criminal enterprise to rob Mr Alamango either by holding the knife to Mr Alamango’s face while they were in the Holden, or by being one of the two men who went up to Mr Alamango’s apartment with him (or both).
The applicant was tried at the same time as Mr Missingham. Mr Missingham was only charged with one count, equivalent to the applicant’s count 3, which was that he was involved in the same joint criminal enterprise to rob Mr Alamango.
An important witness for the prosecution case was RS.
RS had pleaded guilty and been sentenced for two offences, being the same offences as counts 1 and 3 against the applicant. The jury were told about this, and were told that RS received a 35% discount on sentence for his assistance.
In respect of counts 1 and 2, RS gave evidence in chief that included, relevantly:
RS was driving the Holden when Mr Tarasenko was abducted.
RS drove Mr Gualdi, Mr Bagang and Mr Tarasenko to Crackneck Point lookout. During the drive, Mr Gualdi held a knife to Mr Tarasenko’s face. Mr Gualdi threatened to cut Mr Tarasenko during the drive, but Mr Tarasenko’s hand and ear were not actually cut until after they arrived at Crackneck Point. At one point during the drive, RS stopped the car and punched Mr Tarasenko himself a few times in the head.
When they met with the Chrysler, Mr Pearson and two other men got out, and Mr Pearson assaulted Mr Tarasenko saying, “[w]here’s my money?” They decided to go somewhere else because of the noise, and the two vehicles drove to Crackneck Point lookout.
When they arrived at the lookout, all of the occupants of both vehicles got out. Mr Tarasenko was taken to a picnic table where he was stripped and further assaulted. The offenders found a bag of cocaine. RS, Mr Gualdi, Mr Bagang and Mr Taylor took the cocaine over to one of the vehicles and all had some. They left Mr Tarasenko with Mr Pearson and the applicant.
RS was not present when Mr Tarasenko’s hand and ear were cut. RS heard Mr Tarasenko scream and then the applicant came over to RS holding a knife. The applicant said he had tried to cut Mr Tarasenko’s ear off, but Mr Tarasenko had reached up, grabbed the knife and cut his hand as the applicant pulled the knife away.
As for count 3, RS gave evidence in chief that included, relevantly:
RS drove the applicant, Mr Gualdi, Mr Bagang and Mr Missingham to Gosford to get drugs from Mr Alamango. According to RS, Mr Bagang was in the front passenger seat, Mr Missingham was in the back on the right, and the applicant and Mr Gualdi were in the back in the middle and on the left (he could not recall which was which).
When they arrived at the address agreed by text with Mr Alamango, the applicant and Mr Gualdi got out of the left side of the car, because it would look suspicious if the car had five people in it. After Mr Alamango got in the car, the applicant and Mr Gualdi got back in the car on the left. The applicant held a knife to Mr Alamango. Mr Gualdi said, “[w]e just cut off your mate’s ear tonight,” and the applicant said, “[h]ave you ever been raped with a stick?” [AB 260].
The applicant also said, “[w]hat else have you got in your house?” At that point, they decided to take Mr Alamango to his home and rob him. They drove to Mr Alamango’s home, where the applicant and Mr Gualdi got out of the car and went up to Mr Alamanogo’s apartment with him. When they returned, they got back into the car in the back seat on the left. They had cash and a gold watch. They divided up the cash and Mr Bagang kept the gold watch because it was his car that was used.
RS was challenged in cross-examination. The applicant’s counsel put to him that he was giving false evidence and that he wanted to reduce his own sentence by incriminating as many other people as possible. It was also suggested that the cutting of Mr Tarasenko took place in the Holden on the way to the lookout, that the events as described by RS in the car with Mr Alamango did not happen, that it was Mr Bagang and Mr Gualdi who went up to Mr Alamango’s home with him and that the applicant had nothing to do with assaulting Mr Tarasenko or robbing Mr Alamango. RS resisted all of these suggestions and maintained his evidence.
It is appropriate to observe at this point that I do not accept the applicant’s submission that the prosecution presented a case that the jury could only convict, on all three counts, if they accepted RS’ evidence in its entirety so far as it concerned that count. The Crown in opening said that it “squarely relies on the evidence of RS” [AB 107], but I do not accept that the case was presented to the jury on the basis that they could only convict on each count if they found RS’ evidence to be entirely truthful, either generally or in respect of that count. As explained below, the trial judge’s directions to the jury made it clear that they should consider all of the evidence in respect of each count and that it was a matter for them whether to accept or reject a witness’ evidence in whole or in part.
The principal thrust of the applicant’s argument in this appeal is that the jury’s acquittal in respect of count 2 could only be because they considered that RS was not a credible witness. Given the vivid nature of RS’ evidence about Mr Tarasenko’s scream followed by the applicant being seen with the bloodied knife and making the admission, the applicant contends that this evidence could not be dismissed “benignly” on the basis that RS was not accurate or reliable. The applicant says it could only be dismissed on the basis of doubt as to RS’ credibility. If there was a reasonable doubt about RS’ credibility, the applicant argues, that doubt should have infected RS’ evidence in respect of counts 1 and 3, with the necessary result being an acquittal.
In order to explain why this argument should not be accepted, it is useful to set out other relevant evidence which the jury received.
Mr Tarasenko’s evidence in chief was that Mr Pearson had spoken to him on a number of occasions prior to 12 February 2022 because Mr Pearson thought Mr Tarasenko owed him money. Mr Pearson was associated with the Bandidos outlaw motorcycle gang (‘OMCG’). Mr Tarasenko had previously been affiliated with the Finks OMCG although he was not so affiliated at the time.
Mr Tarasenko knew RS, and at some point RS made it clear to Mr Tarasenko that he was affiliated with the Nomads OMCG.
On the night of 11 to 12 February 2022, Mr Tarasenko was abducted by a number of men. He recognised RS but did not know the other men. He was forced into a vehicle under threats of being killed. RS was driving. He recalled a man of Islander appearance and a Caucasian with the number “14” tattooed on his face. The evidence would establish that these men were Mr Bagang and Mr Gualdi respectively.
At one point, the car stopped, another car pulled up, Mr Tarasenko was thrown out and there was “a flurry of punches”. Mr Tarasenko recognised Mr Pearson among the assailants. Mr Tarasenko was then put back into the car and driven further. In the car, he was punched many times – he said the assailants were hitting him all the way from when he got into the Holden until they arrived at Crackneck Point lookout.
Mr Tarasenko said that, during the drive, the man with the facial tattoo held a knife to his throat and said, “I want to cut you” and “I’m looking forward to cutting you”.
When they arrived at Crackneck Point lookout, the other vehicle was also there. Mr Tarasenko recognised it as Mr Pearson’s Chrysler. (The evidence would establish that the applicant was among the men who travelled to Crackneck Point lookout in the Chrysler.)
Mr Tarasenko was thrown out of the Holden, stripped of most of his clothes and assaulted by a number of men. The assailants said things that included, “[w]e wanna cut you”, “[w]e’re gonna kill you” and “I hope you enjoy dying here”.
Mr Tarasenko said that he was cut on his left ear and left hand. Someone had said, “I want to cut your ear off.” Mr Tarasenko did not know who said that, but he said he remembered a man in a grey GANT jumper. (The evidence would establish that the applicant was wearing a grey GANT jumper that night.)
The assailants took Mr Tarasenko’s phone and forced him to unlock it. The men with his phone walked away and later some men left the lookout in the Holden. Mr Pearson and a man named Hayden were still at the lookout. Mr Tarasenko was put in the back seat of the Chrysler and driven close to his home.
The evidence disclosed that Mr Tarasenko’s phone had been used to communicate with Mr Alamango, to arrange a meeting later that night, purportedly to purchase cocaine. This was Exhibit G at the trial. The earliest message in evidence in the text conversation in evidence was from 12.37am. The last eight messages were as follows, all recorded as being sent on 12 February 2022 at 1.35am:
TARASENKO: “Here bro just down a bit”
TARASENKO: “No parking up top”
ALAMANGO: “Okay coming”
ALAMANGO: “Hold up”
TARASENKO: “in the Ute”
ALAMANGO: “Ez”
ALAMANGO: “Got your lights on ?”
TARASENKO: “Yeh”
TARASENKO: “Just back passenger”
Mr Tarasenko was cross-examined by the applicant’s counsel. A significant line of cross-examination was because, in his first two statements to the police (both video-recorded), Mr Tarasenko had given unequivocal evidence that his left hand and left ear were cut during the drive in the Holden by the man with the “14” tattoo.
The first statement was later on the same day as the abduction and assault, 12 February 2022, in the hospital where Mr Tarasenko was taken for his injuries. Mr Tarasenko agreed in his evidence before the jury that he told the police that the cutting of his ear and hand took place in the Holden, but he said that was not true. Mr Tarasenko said that he “slowly got more of [his] memory back” and that “[e]ven two years on … there’s probably still gaps that … [he] do[es]n’t remember”.
Mr Tarasenko also said in his first statement that when they arrived at the lookout he was thrown out of the car and left for about 20 minutes. He said that the things he had said took place in the car “actually took place at Crackneck”.
Mr Tarasenko had a second video-recorded interview with the police on 25 April 2022. In that interview (as he agreed during cross-examination before the jury), he also gave unequivocal evidence that the cutting of his ear and hand took place in the Holden. He said it was “the guy with the 14 tattoo”. He also said that the other man in the car was an Islander “because of the accent”. He described that other man as “a big boy”, with a big bushy beard and a big plait.
Mr Tarasenko also told the police in that statement that when he was at the lookout “they … cut [his] wallet off and that was pretty well it”, but Mr Tarasenko said to the jury that this was not the case.
Mr Tarasenko was challenged at some length about his evidence that the cutting of his hand and ear took place at the lookout rather than in the car. It included asking whether he had changed his story to incriminate other people or whether he had been “got at” or threatened by any member of a bikie gang. Mr Tarasenko denied this.
Mr Tarasenko gave a third statement, this time in writing, on 13 October 2022. In that statement, Mr Tarasenko gave evidence for the first time about one of the assailants being in a grey GANT jumper. He said that this man “sticks out”. In cross-examination before the jury, the applicant’s counsel suggested to Mr Tarasenko that it was RS who was assaulting him at Crackneck Point and that Mr Tarasenko was making up evidence to incriminate someone other than OMCG members. Mr Tarasenko denied this.
The cross-examination by the applicant’s counsel concluded as follows:
Q. What I’m putting to you is that the person with the GANT jumper did not assault you, try to cut you, or have anything to do with you on that night at that lookout; what do you say about that?
A. Honestly I don’t remember.
Q. You don’t remember?
A. All I can say to you is that the grey GANT jumper stands out, vividly stands out. I remember being cut and I remember a guy in a grey GANT jumper standing out.
Q. That’s all you’re saying?
A. That’s all I’m saying.
Q. So you cannot say that it was the man in the grey GANT jumper?
A. I can’t definitively say it was anybody, right. I’m telling you that I’m [putting] two and two together; that’s what I’m saying.
Two features of this evidence may be noted:
Mr Tarasenko was unable to give direct evidence that it was the applicant who cut his hand and ear – he said he did not remember and indicated that it was only by putting two and two together that he thought it was the man in the grey GANT jumper.
Mr Tarasenko remained firm in his evidence that the man in the grey GANT jumper stood out among his assailants.
Given that Mr Tarasenko admitted that he told police clearly, on two previous occasions, that the cutting had taken place in the car, the jury had a basis for having a reasonable doubt about whether Mr Tarasenko’s evidence was reliable about the location where the cutting occurred. Given the distressing situation in which he found himself, it would be perfectly rational for a jury to accept that he had a clear recollection of some aspects of his ordeal (including the involvement of the man in the grey GANT jumper) but became confused or came to have an incorrect belief about the precise location at which his hand and ear were cut. The possibility that Mr Tarasenko was confused as to when the cutting occurred might have been reinforced by the fact that on every version of events Mr Tarasenko was threatened with being cut while he was being assaulted in the Holden. Furthermore, Mr Tarasenko said in re-examination [AB 179] that when he was at Crackneck Point and was confronted by someone with a knife, his attention was on staying alive, not on who was wielding the knife.
On Mr Tarasenko’s evidence alone, there was a rational basis on which the jury might regard Mr Tarasenko as reliable in his evidence about being threatened with the knife, being cut with the knife, being assaulted at the lookout by multiple men and about one of the assailants being a man in a GANT jumper, while being unreliable in his evidence about precisely when during the ordeal he was cut with the knife.
As for the separate question of whether Mr Tarasenko was assaulted at all while he was at Crackneck lookout (important for count 1) – it would be rational for the jury to find it inherently plausible that Mr Tarasenko was assaulted at the lookout as well as in the Holden on the way there. It would be entirely understandable for the assailants to take Mr Tarasenko to the lookout if they were planning to assault and threaten him there. It is less easy to understand why both groups of men drove there in convoy if it was not part of the plan to assault and threaten Mr Tarasenko. (Such reasoning would be further supported by Mr Taylor’s evidence that Mr Pearson invited them to a “punch-on”, as explained below.)
Mr Taylor gave evidence that he had met Mr Pearson through work one or two months before 11 February 2022. On 11 February 2022, he was at a pub with Mr Pearson, Mr Missingham and the applicant, and Mr Pearson told the others that there was going to be “punch on”. Mr Pearson drove them all in his Chrysler to Terrigal, where they met with another vehicle, a ute.
The two vehicles drove in convoy to the lookout. When they arrived at the lookout, Mr Pearson, the applicant and Mr Missingham got out of the car. Mr Taylor said he stayed in the car because he did not want to be there any more or be involved. Mr Taylor said he heard a lot of yelling and swearing but could not see anything.
After about half an hour, the ute was no longer there. Mr Taylor was then asked by Mr Pearson to help. After endeavouring to bandage Mr Tarasenko up with his shirt and giving him an energy drink, Mr Taylor travelled with Mr Pearson when he dropped Mr Tarasenko home.
It should be observed that Mr Taylor’s evidence provided substantial support for a conclusion that the applicant was actively involved in the “punch on”. While Mr Taylor did not actually witness the applicant punching or kicking Mr Tarasenko, the fact that the applicant got out of the car and joined the other men, knowing it was a “punch-on”, was corroborative of Mr Tarasenko’s evidence that he was assaulted at Crackneck Point and that one of his assailants was the man in the grey GANT jumper.
In respect of count 3, in addition to the evidence of RS, the jury had the evidence of the victim, Mr Alamango.
Mr Alamango exchanged the text messages arranging the meeting to supply cocaine believing he was messaging with Mr Tarasenko. When Mr Alamango got into the back of the car (as arranged), two men “came around the corner” and jumped into the same door Mr Alamango had used. They beat the sides of his head and put a knife to his ear, saying that if they did not bring them up to his apartment and give them everything, they would cut his ears off.
The men made Mr Alamango direct them to his apartment. When they arrived, two of the men went up to his apartment with him. Mr Alamango said [AB 191], “one of them had a 13 tattooed under his eye, the other was Islander or some sort of Indigenous, and that’s all I remember about him”. In relation to the tattoo, he said further, “I believe it was 13. I can’t remember the number precisely. I tried not to remember.”
While Mr Alamango at first said they did not cover their faces, he later accepted in cross-examination that they might have had COVID masks on. (RS said the applicant and Mr Gualdi were wearing COVID masks.)
Mr Alamango said the men took between $4,000 and $9,000 but he did not remember.
In cross-examination by the applicant’s counsel [AB 200], Mr Alamango confirmed his evidence that, of the two men who went up to his flat, one had a “13” facial tattoo and the other was “an Islander or some sort of Indigenous”. He agreed that when he gave a recorded statement to police, he said, “I know one of them had a 14 tattooed here, and the other got a 1% tattoo in the middle of a triangle on his neck”.
This was potentially significant for the jury, because the jury had photographs of both Mr Bagang and Mr Gualdi, and it could be observed that Mr Gualdi had the “14” tattoo under his eye and a prominent “1%” tattoo on his neck. Mr Bagang did not appear to have a “1%” tattoo on his neck – he had a black beard. This evidence, if the jury examined it closely, provided a basis for the jury to be concerned that Mr Alamango might not be reliable as to which of his assailants had which tattoo.
In cross-examination by Mr Missingham’s counsel, Mr Alamango gave some evidence which assumes significance in this appeal:
Mr Alamango said [AB 205] that he was “incredibly drunk” or “quite intoxicated”, and that he was “going through a lot at that period of [his] life”.
The two men who went up the apartment were the two men who jumped in after him “just because of the way that we got out the car if I’m recollecting it that way” [AB 206].
Mr Alamango described the two men who came up to his flat with him as “pretty short” but “solid” [AB 207]. He confirmed that the only people who he could tell were short were the two people who got out of the car.
When police asked Mr Alamango about the “Islander person”, Mr Alamango said he was “a sort of Filipino, Fijian maybe, Islander sort of bloke”. When asked before the jury [AB 208] how he got the idea that he was Filipino, Fijian, Islander or (per his evidence in chief) Indigenous, Mr Alamango said, “[t]ruly it was mostly the tattoo on his arm”. The tattoo “looked like some sort of like tribal sort of stuff that they get. I’m not sure which culture it was to, so that’s why I’m so random in saying which ones.”
Relevantly, Mr Alamango did not say that the other person was Islander or Indigenous because of the colour of his skin, any facial features, or any other physical characteristics which some people might associate with being an Islander or Indigenous.
The jury had two agreed facts which become relevant in this appeal. The first was that the applicant’s DNA was discovered on the back of the front passenger seat (ie, in a location where it would be expected if the applicant was in the back of the car on the left). The second was that the applicant did not have a tattoo on his arm.
Mr Missingham’s counsel also confirmed with one of the investigating police officers who gave evidence, Detective Senior Constable Faith, that Mr Bagang was 185cm to 190cm tall and weighed 105kg to 110kg [AB 375]. Consistent with this, RS agreed in cross-examination by Mr Missingham’s counsel that he would not describe Mr Bagang as “short and stocky” [AB 335].
The significance of these pieces of evidence is twofold:
The evidence about the arm tattoo was exculpatory of the applicant, but it was open to the jury to have some doubt about whether Mr Alamango was reliable as to which man had which tattoo. He had previously given a statement saying one man had the “14” tattoo and the other man had the “1%” tattoo, whereas Mr Gualdi had both tattoos.
The other evidence provided an objective basis for finding that the applicant was one of the two men who got into the car after Mr Alamango, and then got out of the car with Mr Alamango to accompany him up to his flat and rob him. Both Mr Alamango and RS said that Mr Alamango and the two men entered the car from the left. This was corroborated by the last text message in Exhibit G with the reference to “back passenger” (see [47] above). It was clear enough that one of the two men was Mr Gualdi. If the jury were asking themselves whether the other man was the applicant or Mr Bagang or someone else, they may well have placed decisive weight on Mr Alamango’s evidence about getting into the car and out of the car on the left (where the DNA evidence indicated the applicant sat), and on Mr Alamango’s evidence that the two men were short, which excluded Mr Bagang.
It is not necessary to canvass the whole of the trial judge’s summing up. However, it is appropriate to understand his Honour’s directions to the jury in some respects.
His Honour gave several entirely orthodox directions which affirmed for the jury their role in assessing witnesses, including that they could accept part of a witness’ evidence while not accepting other parts, and that in deciding what parts to accept, the jury should weigh up the witness’ evidence alongside all the other evidence: [AB 457]
It is for you to assess the various witnesses and decide whether they are telling the truth. You have seen each of them as they have given their evidence, and it is a matter for you entirely as to whether you accept that evidence.
Your ultimate decision as to what evidence you accept and what evidence you reject may be based on all manner of things, including what the witnesses had to say, the manner in which the witness said it, and the general impression which he or she made upon you when giving evidence.
Now, the assessment of witnesses. Your function in deciding what evidence you accept as proved and what is not involves you in making an assessment of the witnesses. In making an assessment of whether you accept evidence as established by a particular witness' account, you need to bear in mind that what you are concerned with is not just the honesty of the witness, but also, the reliability of the witness.
Of course, you may well decide not to rely on evidence of a particular witness if it appeared to you that that witness was not giving evidence honestly, but quite apart from questions of truthfulness, you should bear in mind that the evidence of a completely honest witness may not be reliable because of errors in observation or errors in a witness' recall of events, or a witness' inability to accurately describe what it is he or she saw or heard.
When you come to making an assessment of the evidence of the witnesses, you should bear in mind that you do not have to accept everything that a witness said or reject everything that a witness said. It is open to you to conclude that you would not accept a particular witness at all as to anything that witness has said to you, but equally, it is open to you to accept part of the evidence and reject other parts of that witness' evidence.
In making your assessment of witnesses, you are not obliged to confine yourself to looking at the evidence of a given witness in isolation. You are entitled to weigh all of the evidence together in arriving at the factual determinations that you make.
The question of credibility or reliability of the evidence of the witnesses from whom you have heard is a question of fact, and is therefore, a question for you alone to determine.
The elements in respect of Count 1, the particulars are on or about 12 February 2022 at Terrigal:
- The accused - and Count 1 relates only to Mr Steele - the accused detained Jesse Terasenko;
- Knowing that Jesse Terasenko was not consenting; and
- The accused did this with the intention of committing a serious indictable offence, namely, intimidation; and
- The accused was in the company of at least one other person or other persons; and
- At the time of the commission of the offence, actual bodily harm was occasioned to Jesse Tarasenko.
Count 2, which again as you know, only relates to Mr Steele, on or about 12 February 2022, at Bateau Bay, the elements are:
- The accused was in company of another person or persons; and
- The accused or one of the persons he was in company with wounded Jesse Terasenko; and
- The act that inflicted the wound was done recklessly.
In relation to Count 3 which concerns both accused, Mr Steele and Mr Missingham, on or about 12 February 2022 at North Gosford in the state of New South Wales, the elements are:
- While in the company of another person or persons;
- With the intent to deprive property of Brandon Alamango permanently;
- Took property, being cash and a gold watch through the use of violence or through the threat of violence such that he was in fear;
- From Brandon Alamango.
For you to be satisfied beyond reasonable doubt that the Crown has proved the elements of Count 2 against the [applicant] you must be satisfied that the injuries sustained by Jesse Tarasenko were sustained by him at Crackneck Lookout at or near the picnic table and not in the vehicle driven by RS to the lookout. The reason for this is that [the applicant] was not in the vehicle driven by RS to the lookout but travelled from Newcastle in the vehicle driven by Brock Pearson. The Crown case is that it was [the applicant] who inflicted the wounds to Jesse Tarasenko's ear and hand. However, alternatively, the Crown case is that if he was not holding the knife, he was very close so as to be in company, and as party to a joint criminal enterprise you can find him guilty on that basis if you are so satisfied beyond reasonable doubt.
You will understand that there is a dispute on the evidence in relation to Count 3 as to who it was who went into the home of Brandon Alamango with Ethan Gualdi, namely, whether it was [the applicant] or some other person. You should understand that it is the Crown case that [the applicant] was a party to a joint criminal enterprise in relation to Count 3. To find [the applicant] guilty of the offence in Count 3, you must be satisfied beyond reasonable doubt of either, one, that [the applicant] acted in the way as alleged by RS in his evidence, namely, that in the car he was holding the knife to the face of Brandon Alamango but that he was not one of the people who went into the house, or, two, that [the applicant] was one of the persons that went inside the house. For the [applicant] to be found guilty of Count 3 on the Indictment, you must be satisfied beyond reasonable doubt on either basis set out above to find that he was party to the joint criminal enterprise alleged by the Crown.
On one view, it may not have been necessary for count 3 against the applicant to be so confined. Arguably, it might have been sufficient if the applicant participated by being one of the two men who hid around the corner then got into the car after Mr Alamango was inside, or participated by punching him as part of the threats intended to intimidate him into handing over valuable property. But the Crown case was put to the jury on this basis and so the question for this Court is whether it was rational for the jury to convict on this basis, despite acquitting the applicant in respect of count 2.
His Honour gave a detailed direction about the “considerable caution” with which the jury must approach RS’ evidence [AB 477-478]. This included stressing that there are many reasons why the evidence of someone in RS’ position might be unreliable, and that such a person might be motivated to give false evidence on a number of grounds.
There may be other reasons or motive why such a witness would give false evidence. It is not for either accused to establish what those reasons must be. It is important that you remember that the Crown bears the onus of establishing the essential aspects of its case and neither accused has to prove anything.
Experience has shown that once such a witness has given a version to the police which incriminates an accused, they may feel locked into that version even if it contained inaccuracies or even if it were substantially untrue.
You may think that a person would not usually admit to committing a crime unless the admission was true, but there may be situations where a person may give false evidence about admissions being made. The main issue in this case, as I understand it, is whether the admission was made by [the applicant] at all. The onus is on the Crown to prove that the admission was truthful, and if you find any evidence to suggest that it is not, the Crown must refute that suggestion.
The applicant contends that, when close attention is paid to the way in which the case was left to the jury, and in particular the importance of RS’ evidence to the prosecution, the jury could not properly acquit in respect of count 2 but convict in respect of counts 1 and 3. I am unable to accept this. While the Crown certainly stressed before the jury that it relied upon RS’ evidence, neither the Crown nor the trial judge suggested that the jury could only convict if they accepted the entirety of RS’ evidence. The trial judge’s general directions about the jury’s role in assessing witnesses was to the contrary.
There were several rational ways in which the jury, acting properly in accordance with its directions, may have been satisfied beyond reasonable doubt in respect of counts 1 and 3, while not being so satisfied in respect of count 2.
First, a possibility adverted to in MFA at [34], the jury may have thought that RS’ evidence was probably truthful, but that they were not satisfied beyond reasonable doubt unless they had what they considered to be credible and reliable evidence supporting what RS had said.
If they took this view, the only other evidence they had about Mr Tarasenko’s hand and ear being cut at the lookout was Mr Tarasenko’s evidence, which they needed to set alongside Mr Tarasenko’s two earlier statements that the cutting occurred in the car on the way to the lookout. As explained above, it was open to the jury to regard Mr Tarasenko as a generally truthful and reliable witness, but to conclude that his recollection of where the cutting took place was not reliable. This conclusion might be reinforced by the fact that, on all versions, Mr Tarasenko experienced the trauma of having the knife held to his face in the car accompanied by threats of being cut or killed.
By contrast, the jury might regard as more reliable Mr Tarasenko’s evidence that he was assaulted at the lookout and that, among the men attacking him, the assailant who stood out was the man in the grey GANT jumper. That evidence was supported by Mr Taylor’s evidence, which was that he and the applicant (together with Mr Pearson and Mr Missingham) had been driven to the lookout because a “punch on” was going to take place there. Mr Taylor’s evidence was that, unlike Mr Taylor, the applicant got out of the car and joined the group.
As for count 3, the jury had objective evidence that the applicant was in the back of the Holden on the left (the DNA evidence), and also Mr Alamango’s evidence that the two men who came up to his flat were the two men who hid outside the car and jumped in on the left hand side after him. The jury also had evidence that they might properly use to exclude Mr Bagang from being one of those two men, being Mr Alamango’s recollection that the two men were short, and Mr Alamango’s evidence that it was “mostly the tattoo” that made him say one of the men was an Islander, rather than the colour of his skin or any other physical feature. It would be rational for the jury to regard Mr Alamango’s recollection of the height of the men, and their location in the car, as reliable, while considering that Mr Alamango’s evidence suggested he might be honestly confused about which man had which tattoo.
The applicant draws attention to the closing address of the prosecutor, in which the prosecutor appeared to think that Mr Alamango had identified Mr Bagang as the man who went up to Mr Alamango’s flat with Mr Gualdi [AB 413]. However, with respect to the prosecutor, that closing address erroneously records Mr Alamango as saying the other person was “Islander or Filipino or Indigenous looking” (emphasis added). In fact, as explained above, Mr Alamango’s evidence was markedly not that the man “looked” Islander or Indigenous. It may be that the prosecutor was confused, because Mr Tarasenko also described the man who was with Mr Gualdi in the car earlier in the night as an “Islander”, but there is no reason to impute the same confusion to the jury.
Second, while RS had a number of possible motives for lying, it was rational for the jury to find that RS was only in fact motivated to lie in a narrow respect. The applicant’s counsel ran a case that RS’ evidence was not credible generally given his various motives to lie, but the jury were not obliged to accept this.
The applicant’s counsel, in opening, had drawn attention to a narrower motive to lie. The applicant’s counsel stressed [AB 112] that RS was criminally involved and that there was a risk that RS might give evidence in a way that minimised his criminality. The specific example given was that if the threat with the knife all took place in the car, then RS who was the driver of the car might be giving evidence about the applicant in order to minimise his (RS’) criminal liability. Consistent with this, the jury knew that RS had been convicted in respect of the equivalents of counts 1 and 3, but not in respect of the wounding. RS had a clear, concrete motive to give false evidence that distanced himself from count 2. The jury may have had a reasonable doubt based on the possibility that RS was lying for this specific reason. At the same time, the jury were not obliged to accept, as a matter that attracted reasonable doubt, the applicant’s contention that RS was lying in order to blame co-offenders who were not members of an OMCG.
If the jury took this view of RS’ evidence, then there might be every reason to accept RS’ evidence about the applicant’s involvement in count 1 and count 3. RS had pleaded guilty to the equivalent of counts 1 and 3. He did not minimise his own personal level of criminality by implicating the applicant generally in count 1, being the abduction and assault. Similarly, RS’ level of involvement in the offending conduct, the subject of count 3, was not reduced or minimised by saying that particular acts were committed by Mr Gualdi and the applicant, as distinct from Mr Gualdi and Mr Bagang. By reasoning along these lines, the jury had a rational basis for regarding RS’ evidence about the cutting as “explained and quarantined”, as Kirk JA put it in Barney at [23], such that it did not infect the rest of RS’ evidence.
Third, related to this, the jury may have found RS’ vivid description of the applicant admitting to trying to cut Mr Tarasenko’s ear off to be particularly implausible. The jury may have found RS’ evidence generally to be credible and reliable, but have assessed his demeanour as changing when he gave that vivid description of the applicant’s admission. Of course, this Court does not know what the jury made of the demeanour of each witness, but this Court needs to recognise that one of the advantages the jury has is in assessing each witness in the live atmosphere of the courtroom. This may have contributed to the jury finding some of RS’ evidence to be compellingly persuasive while being left with a reasonable doubt about other evidence from the same witness.
Fourth, the jury were specifically directed about relying on an admission (see [84] above). In light of that direction, the jury might have considered that RS’ evidence was generally reliable, but that evidence of an admission in respect of something RS did not personally observe (the cutting) warranted particular caution. The jury were specifically directed that if there was evidence that the admission was not truthful, then the Crown needed to refute that suggestion. The jury had evidence that the admission was not truthful (being Mr Tarasenko’s earlier statements to the police that the cutting occurred in the car), and the jury were entitled to ask whether the Crown had excluded beyond reasonable doubt the possibility that the admission was not truthful.
These available lines of reasoning are not strict alternatives. The jury were entitled to adopt multiple overlapping lines of reasoning for being satisfied beyond reasonable doubt in respect of counts 1 and 3 while acquitting the applicant in respect of count 2. It is no part of this Court’s role to decide which line of reasoning the jury in fact adopted. A single rational line of reasoning would be sufficient. The various alternative, permissible lines of reasoning on the facts of this case serve to reinforce the conclusion that the verdicts on counts 1 and 3 cannot be regarded as unreasonable or illogical, notwithstanding the acquittal on count 2.
The appeal should be dismissed.
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6 July 2026 - Headnote [3] - "sentence" in the first line changed to "conviction".
7 July 2026 - Coversheet - amended citation for the District Court decision
Steele
R
(1997) 191 CLR 439
(1996) 190 CLR 348
(2002) 213 CLR 606
(2016) 258 CLR 308
(1987) 44 SASR 591