[2024] SASC 127

Prosecution: R Counsel: MR M FOUNDAS WITH MR G DUDZINSKI - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Accused: MARK-BRY ANDREW LEEDHAM Counsel: MR D MOEN - Solicitor: WOODS & CO Hearing Date/s: 05/03/2024 to 14/03/2024, 17/05/2024 File No/s: SCCRM-22-127 B SUPREME COURT OF SOUTH AUSTRALIA (Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. R v LEEDHAM Criminal Trial by Judge Alone [2024] SASC 127 Reasons for the Verdict of the Honourable Auxiliary Justice Nicholson 5 November 2024 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - DEATH - EVIDENCE - WHERE NO BODY CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - COMMON PURPOSE OR JOINT CRIMINAL ENTERPRISE In the early hours of 7 February 2019, the accused drove Michael Jeffery Purse and his then companion (“A”) to a unit in Kilburn (“the Kilburn unit”), which was occupied by three people known to the accused (“B”, “C” and “D”). The prosecution case is that the accused, with the assistance of the Kilburn unit’s occupants, assaulted Mr Purse including by binding him with tape, repeatedly punching and kicking him, stomping on him, attempting to strangle him, putting him in headlocks and stabbing him. Thereafter, the prosecution alleges that the accused and C rolled Mr Purse’s body in a rug and placed it in the boot of a car, before embarking on a failed attempt to dispose of the body in a remote location. It is accepted that C later did so alone. Mr Purse’s body has not been recovered. The accused, C and D were charged with the murder of Mr Purse contrary to section 11 of the Criminal Law Consolidation Act 1935 (SA). The accused was tried alone before a Judge sitting without a jury in accordance with the accused’s election made pursuant to section 7 of the Juries Act 1927 (SA). The prosecution relies on the evidence of eyewitnesses (A and B), the truthfulness and reliability of which is challenged by the defence. In support of the defence contention, the accused gave evidence that Mr Purse attacked him in the Kilburn unit and in the course of a struggle, Mr Purse produced a -- 1 of 121 -- knife and was accidentally stabbed. The accused’s evidence was that he departed the Kilburn unit when Mr Purse was injured but still alive. The prosecution case depends on rejection of the accused’s account as being reasonably possible and acceptance beyond reasonable doubt of the account given by B of what occurred in the Kilburn unit. Verdict Murder of Michael Jeffery Purse – guilty. Criminal Law Consolidation Act 1935 (SA) s 11; Juries Act 1927 (SA) s 7; Evidence Act 1929 (SA) ss 13, 34KA, 34P, 34Q, 34R, referred to. Zoneff v The Queen (2000) 200 CLR 234; Edwards v The Queen (1993) 178 CLR 193; MDM v The Queen (2020) 136 SASR 360; Royall v The Queen (1991) 172 CLR 378; R v Hallett [1969] SASR 141; Miller v The Queen (2016) 259 CLR 380; Mitchell v The King (2023) 276 CLR 299; Likiardopoulos v The Queen (2012) 247 CLR 265; R v McCarthy [2015] SASCFC 177, considered. -- 2 of 121 -- R v LEEDHAM [2024] SASC 127 Criminal: Trial by Judge Alone NICHOLSON AJ. Introduction 1 Mark-Bry Andrew Leedham stands accused of having murdered Michael Jeffery Purse. He stood trial before me sitting without a jury. 2 In the early hours of 7 February 2019, the accused drove Mr Purse and his then companion, [redacted] to whom I will refer as “A”, in a Mazda vehicle borrowed from a friend, to a home unit in Kilburn (“the Kilburn unit”). The Kilburn unit was occupied by [redacted] to whom I will refer as “B”, [redacted], to whom I will refer as “C” and [redacted], to whom I will refer as “D”. At the time, B was a longstanding friend of the accused, C was her then domestic partner well known to the accused and D who also was known to the accused had recently been released from prison. 3 Soon after the arrival of the accused, Mr Purse and A, a physical altercation involving Mr Purse took place. Mr Purse suffered, inter alia, a knife wound to the abdominal region. There is no evidence or record of Mr Purse or of his body, if deceased, having been heard from or seen since the early hours of the following morning, 8 February 2019. The evidence of the investigating police officer, Blake Horder, which I accept, was to the effect that, since that morning, there had been no activity associated with Mr Purse’s known email addresses or his bank or Centrelink accounts. In fact, banking and Centrelink checks revealed no transactions on Mr Purse’s accounts have been conducted since 30 January 2019.1 Police also had not found any evidence of communications between Mr Purse and family or known friends and associates after 7 February 2019.2 There has been no activity on Mr Purse’s mobile phone since it was disconnected from the network at 3:40 am that day. At no time thereafter has the phone reconnected to the network.3 4 It is not necessary to know of the whereabouts of Mr Purse’s body, if he is deceased, in order to establish a charge of murder. However, a finding beyond reasonable doubt that he is deceased is, of course, an essential element of that crime. I will return to this issue once I have reviewed all of the evidence. The prosecution bears the onus at all times to prove, as against the accused, each element of the crime of murder beyond reasonable doubt. As a corollary, the accused enjoys the presumption of innocence unless and until the prosecution were to prove its case. 1 Exhibit P1, agreed fact 47. 2 T62. 3 Exhibit P1, agreed fact 16.5 (table). -- 3 of 121 -- [2024] SASC 127 Nicholson AJ 2 5 By Information filed in this Court on 30 March 2022 the accused was charged, with C and D as co-accused, as follows. Statement of Offence Murder. (Section 11 of the Criminal Law Consolidation Act, 1935). Particulars of Offence [D], Mark-bry Andrew Leedham and [C] on the 7th day of February 2019 at Kilburn, murdered Michael Jeffery Purse. 6 I have conducted this trial as a Judge sitting alone, that is, without a jury, in accordance with the accused’s election made pursuant to section 7 of the Juries Act 1927 (SA). As such, I am the arbiter of all issues of law and of fact. Only the trial of the accused has proceeded before me. Ordinarily, as the trier of fact, I would not speculate as to the reasons why C and D were not tried at the same time or perhaps at all. However, I am aware that both have pleaded to and been sentenced for a lesser charge. I know nothing about the bases of the pleas, the sentences imposed or the factual bases of and reasons for those sentences. As far as this trial of the accused is concerned, I have had no regard to the facts of which I do know – that C and D have each pleaded to a lesser charge and been sentenced for that lesser charge. 7 I have considered all of the evidence and all of the parties’ written and oral submissions. The fact that I do not expressly refer to a piece of evidence or a submission does not mean that I have not read and considered it. The prosecution factual case in brief 8 A substantial amount of evidence was adduced by the prosecution concerning the nature of the relationship between the accused and Mr Purse during the weeks or so leading up to the events of 7 February 2019. The evidence was led as explanatory background and in an effort to demonstrate hostility by the accused towards Mr Purse and a motive to violently attack Mr Purse at the Kilburn unit. However, whether or not such a motive were to be established, the prosecution case is reliant on the eyewitness accounts of events said to have taken place in the early hours of 7 February 2019 given by B and, to a lesser extent, A as well as the evidence of two farmers, Todd Baker and David Williams. 9 The prosecution also adduced evidence from the investigating officer, Mr Horder, Detective Ann Schaefer and Brevet Sergeant David Marsh, an intelligence officer with limited expertise in analysing telephone records data. Their evidence was of a relatively formal nature and largely uncontested. I accept their evidence as truthful and reliable. I will refer to it, as and when necessary. The following summary of what the prosecution contended occurred in the Kilburn unit is taken largely from B’s evidence. -- 4 of 121 -- [2024] SASC 127 Nicholson AJ 3 10 Soon after arriving at the Kilburn unit, the accused attacked Mr Purse, unprovoked; he initially punched Mr Purse twice, after which he called out for “tape”. A roll of duct tape which was grey or silver grey in colour was provided to the accused. The accused then bound Mr Purse’s hands together at the wrists in front of him. He also put tape across Mr Purse’s mouth and eyes. 11 The accused continued to assault Mr Purse. At one time during the assault, D emerged from his bedroom and stomped very hard on Mr Purse’s chest while he was lying on the loungeroom floor, calling him a “fucking dog” before returning to his bedroom. The accused put Mr Purse into a headlock and grabbed a set of white headphones, the cord of which broke as he tried to strangle Mr Purse with them. During this assault, Mr Purse attempted to fight back with some success. He was a bigger man than the accused. The accused ran out of the Kilburn unit and immediately returned. Soon after he returned, it became apparent to B that Mr Purse had suffered a stab wound to the abdominal region by a knife with a blade about three to four inches long. There was a lot of blood which splattered around the loungeroom and its furniture as Mr Purse flailed about. 12 After the stabbing incident, C who had been outside apparently tending to his car during much of the altercation, returned inside. The accused, with C joining in, continued to assault Mr Purse. Both kicked and punched Mr Purse to all parts of his body and to his head. Mr Purse was wailing loudly and struggling. At this point, C told B who had been watching, to turn away. She did so and, very soon thereafter, the wailing and struggling stopped. When B turned around, Mr Purse was on the floor, he was still except for his feet that twitched for a brief period before stopping. 13 C and the accused then rolled Mr Purse’s inert body in the loungeroom floor rug, carried it out of the Kilburn unit and placed it in the boot of C’s car, a green Daewoo (also referred to in the evidence as the original Daewoo)4 and drove off. The only other man in the Kilburn unit at the time was D, who was subject to home detention conditions with electronic monitoring. Monitoring showed that he did not leave the Kilburn unit between 12:01 am and 3:00 pm on 7 February 2019.5 14 C’s car travelled to Wild Horse Plains with, by inference, the intention of its occupants being to dispose of Mr Purse’s body in a remote area. At a time after 4:54 am6 but before about 7:00 am,7 the original Daewoo became bogged on or near Sandy Brae Road. 15 The accused and C were unable to free the car. They obtained the help of two farm workers, Todd Baker and David Williams, who pulled the car out with a utility. Both gave suitably qualified evidence concerning their recollections which included descriptions of the two men in the original Daewoo. I accept the evidence 4 For reasons later explained. 5 Exhibit P1, agreed facts 36 and 38. 6 Exhibit P1, agreed fact 25.1. 7 T382-383, T391. -- 5 of 121 -- [2024] SASC 127 Nicholson AJ 4 of each of them as being honest but, as further discussed later in these reasons, not always reliable. 16 The original Daewoo was photographed by a Safe-T-Cam travelling south on Port Wakefield Road, Mawson Lakes at 8:28 am.8 I infer9 that the car was on the return journey from Wild Horse Plains. Assuming no or minimal diversions, it would have arrived at the Kilburn unit at or about 9:00 am. 17 Having returned to the Kilburn unit with Mr Purse’s body still in the boot of the car, both C and the accused were observed by B and A to enter the unit. After a short time, the accused left to return the borrowed Mazda to his friend. However, at 9:37 am the accused, as driver and sole occupant of the Mazda, was involved in a motor vehicle collision on Holbrooks Road, Flinders Park. The accused decamped before the police arrived. A still taken from CCTV, bearing the timestamp 9:41 am, shows the accused after leaving the Mazda on foot.10 The accused was wearing a black or very dark coloured short sleeve T-shirt with some type of light coloured motif on the front, three-quarter length or scrunched or rucked up full length, light (bone) coloured chino type trousers and nothing on his feet. 18 The next day, 8 February 2019, at a time after 1:40 am but before 3:23 am, C left the Kilburn unit in the original Daewoo. He went to an unknown location where he disposed of Mr Purse’s deceased body.11 Mr Purse’s body has not been recovered by the police. I note here that counsel on behalf of the accused, during closing oral submissions, conceded that Mr Purse was deceased by the time C disposed of his body.12 The accused does not concede that Mr Purse had been deceased as at any earlier time, in particular, at or prior to the time of the first attempt to dispose of his body on 7 February 2019. 19 Later in February, C and a friend of his, [redacted], to whom I will refer as “E”, undertook a somewhat elaborate procedure13 to replace the original Daewoo 8 Exhibit P1, agreed fact 25.2. 9 In reliance on agreed facts 25.1 and 25.2 in exhibit P1 and the evidence of Messrs Baker and Williams. 10 Exhibit P2, page 50. 11 Exhibit P1, agreed facts 25.3 and 39. 12 Hence the reference to “deceased” in agreed fact 39. 13 Exhibit P1, agreed facts 28 to 33 are as follows: 28. On 21 February 2019, [a person] posted a Facebook Market Place advertisement selling a green Daewoo, (“the new Daewoo”) (baring SA licence plates XUI 592). The new Daewoo was the same make and model and colour as the original Daewoo. 29. On 26 February 2019, [C], in company with [E], purchased the new Daewoo from [that person] at Hallett Boulevard at Allenby Gardens. 30. At some time between 26 February 2019 and 11 March 2019, the licence plates from the original Daewoo (WKJ 733) and rear spoiler were removed and placed onto the new Daewoo. 31. MANPR records show the new Daewoo with registration plates (WKJ 733) on the following dates, times and locations: 31.1. 11 March 2019 at 1:45:36pm on Grand Junction Road Wingfield; and 31.2 11 March 2019 at 1:47:58pm on Grand Junction Road Regency Park. 32. On 29 June 2019, the new Daewoo was sold … . At the time it was sold, the new Daewoo was baring licence plates WKJ 733 and was sold with the registrations papers for the original Daewoo. -- 6 of 121 -- [2024] SASC 127 Nicholson AJ 5 by transferring its numberplates to another green Daewoo of the same model. The police have not been able to locate the original Daewoo.14 20 Between 8 and 22 February 2019, B, C, D and E engaged in a number of activities aimed at cleaning the Kilburn unit and destroying various potentially incriminating items.15 The accused was not involved in any of these activities. The defence factual case in brief 21 The defence criticised the evidence of both A and B in a number of respects and contended that each witness was untruthful and, in any event, had given evidence that was unreliable. The prosecution’s factual case depends upon my acceptance, beyond reasonable doubt, of the essentials of the account given by B as to what occurred in the Kilburn unit and up to and including the first Wild Horse Plains journey. If I were to reject essential aspects of her evidence, as contended for by the defence, the prosecution case must fail. 22 Nevertheless, and in support of the defence contention, the accused gave evidence and put forward a quite different account of what occurred at the Kilburn unit, as summarised below. The accused was not obliged to give evidence. Had he declined to do so, as was his legal right, such could not have given rise to any inference adverse to him or the case he presented. The accused elected to give evidence and to expose himself to what became a lengthy and rigorous cross- examination. I must treat and assess his evidence in the same way as that of any other witness. 23 If, after considering all of the evidence and the submissions of both parties, I were to accept the accused’s account of events as being reasonably possible, the prosecution will have failed to prove its case beyond reasonable doubt. However, even if I were to reject part or all of the accused’s account, that would not be sufficient to establish guilt. In such a case, I would ignore and put to one side the rejected aspects of the accused’s evidence. However, the onus to prove its case beyond reasonable doubt always remains with the prosecution and I still would have to be satisfied beyond reasonable doubt of the truthfulness and reliability of the essential aspects of B’s account. It is conceivable that I might reject the accused’s account and also not be satisfied of B’s account in an essential respect, in which case the prosecution again would fail. 24 The accused said that he, together with Mr Purse and A, went to the Kilburn unit in the early hours of 7 February 2019. He knew all three occupants well. [Redacted]. The accused had three reasons for attending the Kilburn unit. He wanted to drop off a cut down shotgun (“shorty”) for C and B to store safely on his behalf. He also wanted to facilitate A, whom he understood to be a 33. On the same date, following the purchase of the new Daewoo, [the purchaser] sold the vehicle to …, an auto wreckers and dismantlers. The new Daewoo was then dismantled, the motor and gear box sold as parts, and the remainder of the vehicle sold as scrap metal. 14 Exhibit P1, agreed fact 34. 15 Exhibit P1, agreed fact 37. -- 7 of 121 -- [2024] SASC 127 Nicholson AJ 6 prostitute, being able to spend some time with D who had recently been released from prison having been deprived of female company. Of more immediate moment, the accused was a dealer and had agreed to supply methylamphetamine to Mr Purse; he had a supply of the drug stored, for safekeeping, at the Kilburn unit. 25 Soon after arriving and making introductions, the accused weighed from his supply an eight-ball16 of methylamphetamine which he handed to Mr Purse. Mr Purse smoked some of the drug and complained about its quality. The accused did not react aggressively and tried to calm Mr Purse. The complaints became more aggressive in tone and Mr Purse lunged at the accused and punched the side of his face. The accused punched back twice, connecting with Mr Purse once. Mr Purse stumbled back and pulled a knife with a blade about three or four inches long out of his waistband. Mr Purse pointed the knife at the accused and demanded better drugs. The accused continued to try and calm Mr Purse insisting that the drugs were good but Mr Purse accused him of lying and remained very agitated. 26 A scuffle broke out. The accused grabbed Mr Purse’s wrists in an attempt to get control of the knife. During this scuffle, with Mr Purse still holding the knife, the two men fell to the floor and the knife entered the area of Mr Purse’s abdomen.17 At no time prior to the wounding did the accused hold or have control of the knife and he did not deliberately or knowingly cause or intend for the knife to enter Mr Purse’s body.18 The accused said that, at all times, he was taking defensive action and that Mr Purse’s stab wound occurred in that context and, in any event, was accidental. 27 The accused also specifically denied: that he had attempted to strangle Mr Purse with headphones; that he had put or attempted to put Mr Purse in a headlock; that he had kicked Mr Purse or punched his head or body when on the ground or at any time; and that he had asked for or used tape of any type to bind Mr Purse’s wrists or tape his face.19 28 Soon after the scuffle started and Mr Purse had suffered the knife wound, C returned from outside the Kilburn unit20 and expostulated “what the fuck”. The accused replied “I’m done” and C said “go, I’ll deal with this fuck head”. The accused explained that what he had meant by “I’m done” was that he was finished “dealing with [Mr Purse]” and with “having him in the unit waiting for [A] to finish [with D]”.21 16 One-eighth of an ounce (3.54 grams). 17 The accused said that it appeared to have entered the torso near the ribcage on the bottom righthand side; T472. 18 T472. 19 T473. 20 T474. 21 T474. -- 8 of 121 -- [2024] SASC 127 Nicholson AJ 7 29 At this time, Mr Purse was up against a wall, moaning.22 The accused went to his car and left. He went to the house of a friend, “Michael”, who lived “a few streets over”, about “five minutes, tops” away. He went there “to relax [and] smoke drugs”.23 The accused denied rolling Mr Purse in a carpet and driving to Wild Horse Plains. 30 The accused stayed at Michael’s house until Michael had to go to work which the accused “presume[d]” was about 7:00 am. He left to go home but stopped on the way at the Kilburn unit to pick up his phone which he thought he had dropped during the scuffle with Mr Purse.24 Upon arriving at the Kilburn unit, the accused saw C and E arrive and get out of C’s car. When asked what time this occurred, he said “I’d say 7:15, if I left [Michael’s house] at 7”.25 After leaving the Kilburn unit a little later, the accused had a car accident at Flinders Park at about 9:37 am. 31 The accused described his clothing worn on 7 February 2019 as cream three- quarter length chinos and a black shirt. He said he had left his thongs or slides in the vehicle when he left the scene of the accident at Flinders Park.26 32 At 10:15 am on 7 February 2019, the accused sent a text, “hey mate” to Mr Purse’s phone.27 At 6:41:22 pm the next day, 8 February, the accused made a voice call to Mr Purse’s phone28 that was missed, that is, neither answered nor forwarded to voicemail. Nineteen seconds later, at 6:41:41 pm, the accused sent another text message to Mr Purse’s phone, “hey everything ok chuck me a call”.29 General directions of law 33 There is a general legal framework within which the factual disputes and the ultimate resolution of this matter must be determined. In this section I explain some relevant, more general, legal directions. I will refer to other directions of law as I proceed to set out my reasons. Elements of murder 34 Leaving aside murder involving recklessness, and leaving aside for the moment the additional requirements for murder by way of joint criminal enterprise or extended joint criminal enterprise, in order to secure a conviction for murder the prosecution must prove, beyond reasonable doubt, each of the following four elements. (i) The accused committed an act or acts that caused the death of Mr Purse. 22 T474-475. 23 T476. 24 T478. 25 T479. 26 T454-455. 27 Exhibit P7, entry 366. 28 Exhibit P7, entry 430, T633. 29 Exhibit P7, entry 431. -- 9 of 121 -- [2024] SASC 127 Nicholson AJ 8 (ii) The accused’s act(s), relied on by the prosecution, was (or were) voluntary and deliberate. (iii) The accused, at the time of committing the act(s) relied on by the prosecution, intended to kill Mr Purse or to cause Mr Purse grievous (that is, really serious) bodily harm. (iv) The killing of Mr Purse was unlawful. 35 The first element is squarely in issue: did the accused commit an act or acts relied on by the prosecution as having caused the death of Mr Purse, that is, did he stab Mr Purse with a knife and/or engage in other acts of violence, which stabbing or other acts caused the death of Mr Purse? 36 As far as causation is concerned, the prosecution must prove that the act(s) relied on by the prosecution as having been committed by the accused was or were a substantial cause of death. Any identified act does not have to be the sole cause, nor does death necessarily have to have been the immediate result. I expand on these notions later in these reasons. 37 There is no need to consider further the second and fourth elements in the context of the prosecution case. The conduct of the accused relied on by the prosecution was plainly voluntary, deliberate and unlawful. However, if the account propounded by the defence were to be seen as reasonably possible the questions of accident and self-defence will arise. 38 As far as the third element (specific intent) is concerned, the prosecution does not rely on reckless murder. It contends that the accused had a specific intention to kill or, at least, cause really serious bodily harm to Mr Purse, throughout the time he was assaulted. 39 In order to prove specific intent, the prosecution must adduce evidence of the surrounding circumstances sufficient to demand the inference beyond reasonable doubt that the accused had the requisite intention at the time he performed the act(s) which was or were a (substantial) cause of Mr Purse’s death. 40 Manslaughter by unlawful and dangerous act is a common law alternative to murder and must be left for the consideration of the trier of fact in any case where murder is alleged and manslaughter is open on the evidence. I remind myself of the alternative. It will be proved if all elements of murder were to be established except for the element of specific intent but I, nevertheless, were to be satisfied that the act or acts relied on and proved by the prosecution constituted unlawful and dangerous conduct. Presumption of innocence and burden of proof 41 The prosecution bears an onus to prove each element of the charge it has relied on beyond reasonable doubt. The accused, at all times, is presumed to be -- 10 of 121 -- [2024] SASC 127 Nicholson AJ 9 innocent unless, following the conclusion of the trial, I, as the trier of fact, were to be satisfied beyond reasonable doubt of guilt. A reasonable doubt would be a doubt that, after my consideration of all of the relevant evidence and the parties’ submissions in the context of the applicable law, I am prepared to entertain. The accused has put forward a case in defence. He has cross-examined the prosecution witnesses, adduced evidence including by giving evidence himself and made submissions based on all of the evidence in the case. However, he was not obliged to have done so; he bears no onus of proof whatsoever. Discreditable conduct 42 I must decide the case only on the evidence adduced at trial and must rely on that evidence only for the permissible uses for which it was admissible in accordance with the requirements of section 34P of the Evidence Act 1929 (SA) (“Evidence Act”). 43 Various aspects of the evidence adduced by both parties might be seen as putting the accused in a bad light. Much of this evidence is to be characterised as discreditable, as that term is deployed in section 34P. Section 34P is set out later in these reasons in my discussion of a particularly egregious example of discreditable conduct evidence. Very little, if any at all, of this type of evidence was expressly identified by the parties as discreditable or objected to at the time it was adduced, and at no time was I asked to undertake the analysis called for by section 34P. The evidence, effectively, was admitted by consent, sub silentio. However, many references to evidence of discreditable conduct and the improper use of such evidence have been made in the parties’ respective closing submissions, albeit, not to assert ex post facto inadmissibility but in order to circumscribe its use. Topics identified by the defence as potentially falling to be considered in accordance with sections 34P, 34Q and 34R of the Evidence Act include: (i) Concern expressed by A for her safety and that of her family with regard to the accused. Arguably, evidence of this nature should not have been adduced, although it is difficult to see how A’s account could have been led without this anxiety (justified or unjustified) becoming apparent if only by inference. I have completely disregarded any evidence of this nature. (ii) Evidence of the alleged assault at a home unit in Birkenhead (“the Birkenhead unit”) prior to the Kilburn unit incident. I deal with this evidence at some length later in these reasons. (iii) Evidence by A explaining why she was initially reluctant to give a fulsome account to Detective Schaefer which by implication (only) may be seen to implicate the accused in discreditable conduct30 (discussed later in these reasons). In the same vein, is evidence by A concerning the accused being 30 T181. -- 11 of 121 -- [2024] SASC 127 Nicholson AJ 10 outside her house, behaving in a threatening manner.31 Neither of these topics, to the extent that they assert discreditable conduct, can be used and neither has been used to suggest that the accused was more likely, thereby, to have committed the charged offence. Nor have they been relied on to ascribe any particular propensity or disposition in the accused towards violent behaviour. The only permissible uses of this evidence are as part of A’s narrative to explain her state of mind and conduct and, given that the topics were introduced by the defence in cross-examination, to provide fodder for an attack on A’s credibility. (iv) A gave evidence that during the evening of 7 February 2019 before the Kilburn unit incident, the accused forced her to have sex with him without her consent. This assertion of discreditable conduct was also adduced as part of A’s narrative of the events that night and as part of her explanation as to how it came about that she and the accused travelled to the Port Adelaide area that evening. I have not relied on this evidence for any use, such as propensity or tendency reasoning, proscribed by section 34P. Again, I have only relied on it as part of my consideration of A’s credibility. (v) A also referred briefly to the accused having behaved badly towards A’s dealer,32 and having attempted to lure people to a hotel room to rob them.33 This was plainly inadmissible evidence that could have been but was not objected to. I have ignored it. (vi) A and B gave evidence concerning the accused’s drug dealing conduct. This is evidence of discreditable conduct within the meaning of section 34P. The accused’s admitted conduct in this respect was an essential part of the prosecution narrative and case. It was relevant to the nature of the accused’s relationships with Mr Purse and others, particularly B and C. It also was relevant to the question of motive and the defence contentions based on Mr Purse having complained about drugs supplied by the accused. I have not relied on this evidence for any propensity or other use proscribed by section 34P. (vii) B gave evidence of the accused having possession of and storing a shortened shotgun at the Kilburn unit. Indeed, the accused conceded possession of this item. To the extent that this was evidence of discreditable conduct, I can only repeat earlier matters. This was part of the narrative; on the defence case, one of the reasons for going to the Kilburn unit. I have not used any of the evidence at trial concerning the accused having had access to a firearm (for example, during the Birkenhead unit incident and during the robbery of a massage parlour, to which I will refer as the “Parlour”) for any propensity or other use proscribed by section 34P. 31 T181-182. 32 T188 and T202. 33 T188 and T228-229. -- 12 of 121 -- [2024] SASC 127 Nicholson AJ 11 (viii) The accused volunteered in his evidence that he and Mr Purse had discussed being partners in a superannuation fraud or scam. It is debatable whether this is evidence that the accused “engaged in discreditable conduct”.34 However, whether or not it is, to rely on it in any way as propensity or tendency evidence relevant to the charge of murder in this case would be risible. A possible permissible use is as evidence of the good or benign “relationship” between the accused and Mr Purse. 44 In each case just referred to, I am satisfied that the impermissible use of the evidence as defined in section 34P(1) can be kept separate from any permissible use, and ignored. I am satisfied that I have done so. 45 The prosecution also identified various topics of discreditable conduct evidence falling for consideration in accordance with section 34P. The following evidentiary topics were identified in the prosecution written closing address (there is some overlap with those identified by the defence): (i) the accused engaging in the sale of illicit substances, including the trafficking of over a kilogram of methamphetamine from Victoria to South Australia; (ii) the accused making violent threats to Mr Purse via text message; (iii) the accused possessing and secreting firearms; (iv) the accused assaulting Mr Purse at Birkenhead; (v) the accused engaging in non-consensual sexual acts with A; (vi) the accused committing the offence of robbery at the Parlour; (vii) the accused facilitating A to engage in sex work; and (viii) the accused planning to facilitate the theft of money from people’s superannuation accounts. 46 The prosecution provided written submissions concerning the available permissible uses in the prosecution and defence cases and the impermissible use that the trier of fact must not deploy. Those submissions with some qualifications by me and which, as such, I accept, are as follows. (i) Much of this evidence was led in the defence case. The prosecution do not rely on any of that evidence for any propensity purpose. In particular, the evidence cannot be used to reason that just because the accused has engaged in discreditable conduct that he is more likely to have committed the charged offending. 34 Evidence Act 1929 (SA), s 34P(1) (my emphasis). -- 13 of 121 -- [2024] SASC 127 Nicholson AJ 12 (ii) In relation to the evidence of the accused engaging in the sale of illicit substances, in particular, the trafficking of over a kilogram of methamphetamine from Victoria to South Australia on 26 January 2019, the prosecution contend that this evidence can be used to show the origin of the animosity between the accused and Mr Purse, which is relevant to motive. (iii) In relation to the evidence of the accused sending threatening text messages to Mr Purse and assaulting him at Birkenhead, this is evidence which can be used to show there was animosity between the accused and Mr Purse and is relevant to motive. (iv) In relation to the evidence of the accused possessing and secreting firearms, this is evidence which is capable of supporting A’s account of the Birkenhead assault. It also demonstrates the trusting nature of the accused’s relationship with B, C and D such that it assists in explaining why the accused took Mr Purse to the Kilburn unit. (v) In relation to the evidence of the accused engaging in non-consensual sexual acts with A at “Port Quays”, this is relevant to the chronology and goes to the state of mind of A including why she would feel obligated to comply with certain directions of the accused, particularly in the Kilburn unit after her boyfriend Mr Purse has been violently assaulted in her presence and why she continued to have contact with the accused following the events in the unit. (vi) The evidence of the accused committing the offence of robbery at the Parlour, was led in the defence case. Its only possible relevance concerns A’s credibility. (vii) The evidence of the accused facilitating A to engage in sex work was given by the accused, but denied by A. It is not relied on for any use on the prosecution case. It is relevant to the defence’s attempt to undermine the credibility and/or reliability of A. (viii) The evidence of the accused’s plan with Mr Purse to steal from superannuation accounts also was led in the defence case. However, on the prosecution case, it is capable of supporting A’s account that Mr Purse commented, when his hands were bound in the Kilburn unit, about being “business partners” with the accused and thus not appearing to be concerned about events that had taken place to that point in time.35 47 Again, I have kept permissible and impermissible uses separate during my considerations. I have not engaged in any form of propensity reasoning or used any evidence concerning criminal or otherwise discreditable conduct on the part of the accused by way of bad character or so-called bad person reasoning. 35 T161-162. -- 14 of 121 -- [2024] SASC 127 Nicholson AJ 13 48 There is also the evidence concerning the accused and C leaving Mr Purse’s body in C’s car until C is said to have dumped it on the morning after the day of the Kilburn unit incident. This is evidence of discreditable conduct but it may not, strictly, be post-offence conduct on the prosecution case; it may be part of the alleged actus reus causal of death, depending on the time of Mr Purse’s death. I have not relied on it as tending to prove consciousness of guilt by the accused in relation to any of the events that occurred at the Kilburn unit. Approach to assessment of witnesses 49 The witnesses who were called to give evidence were orally examined, cross-examined and re-examined. B gave evidence with a screen between her and the accused in the dock. The accused could observe B at all times but she could not see the accused. A gave her evidence from a remote location using CCTV. I have reminded myself of the standard direction to be given to a jury as required by subsection 13(7) of the Evidence Act. I have observed that direction when assessing the evidence given by these witnesses. 50 I heard evidence without objection of a number of out of court statements made by Mr Purse who, I am satisfied (for reasons I will return to) is now deceased. They were admissible pursuant to section 34KA of the Evidence Act. Subsections 34KA(1) and (2) are in these terms. (1) Subject to this section, in prescribed proceedings, a statement not made in oral evidence in the proceedings (an out of court statement) is admissible as evidence of any matter stated if— (a) oral evidence given in the proceedings by the person who made the out of court statement would be admissible as evidence of that matter; and (b) the person who made the out of court statement (the relevant person) is identified to the court's satisfaction; and (c) any 1 of the conditions specified in subsection (2) is satisfied. (2) The conditions are as follows: (a) that the relevant person is dead; (b)-(e) … 51 Proceedings for a criminal offence are within the definition of “prescribed proceedings” in subsection 34KA(8). Statements by Mr Purse fall within paragraph (2)(a) above. As far as any section 34KA statement is concerned, in accordance with the jurisdictional requirement in paragraph (a) of subsection 34KA(1) I have ignored any hearsay or otherwise inadmissible material contained in such a statement. -- 15 of 121 -- [2024] SASC 127 Nicholson AJ 14 Motive for some witnesses to lie 52 The defence asserts that two of the prosecution witnesses, A and B, have lied to the Court and their evidence should be rejected. The defence cross-examined these two witnesses, particularly B, on the basis that they each had a motive to lie. I will canvass these challenges when I come to deal with the evidence in question. For the present, I remind myself of the following. 53 The absence of evidence of a motive to lie is neutral; some witnesses will lie for no apparent reason. The inability of the defence to adduce evidence of or to establish a motive to lie in a witness cannot add to or strengthen the verisimilitude of the evidence of that witness. However, a motive to lie where it exists can have substantial probative value in relation to the credit of a witness. I have taken into account any evidence in this case of a motive to lie when assessing the credibility and determining whether to accept the evidence of the witness concerned. However, the accused had no onus to prove a motive to lie. It is for the prosecution to prove guilt and to show each witness relied on to be credible and reliable. It is not for the defence to show the witness to be unreliable or to have lied. Witnesses not called 54 Throughout this trial a very large number of persons, in excess of 45, were referred to, particularly by the defence, but were not called as witnesses. They included associates of the accused, A and Mr Purse, who were said to have been present at the Birkenhead unit, other associates and relatives of the accused, A, B and C, the man called “Michael” (not the deceased) E and a man called [redacted], to whom I will refer as “F”. I have not speculated about why any of these persons was not called to give evidence. I have not speculated about the evidence any such person might have given had they been called to give evidence. The reason why many of the persons referred to might have been relevant in any way to the issues in this case was only rarely, if at all, indicated. Lies 55 Later in these reasons, I make findings that the accused was not always truthful in his evidence in court. I have found some of his evidence to comprise lies which I have taken into account when deciding whether to accept or rely on other aspects of the accused’s evidence. However, I have not relied on any of the accused’s untruthful evidence nor any of his proved conduct as demonstrating a consciousness of guilt.36 The prosecution opening 56 In the defence written closing address, a substantial number of propositions put during the prosecution opening which ultimately had no, or only tangential, support in the evidence have been identified. Many are of a relatively minor and unsurprising nature. The defence has not made a submission as to what should 36 Zoneff v The Queen (2000) 200 CLR 234, Edwards v The Queen (1993) 178 CLR 193. -- 16 of 121 -- [2024] SASC 127 Nicholson AJ 15 follow from these failures to come up to proof. There is no jury that might have been misled. I have considered the various matters. None are such as to cause me any concern from a defence perspective with respect to the fairness of the prosecution case as presented. I have not relied on any prosecution contention that is not supported by evidence adduced. Agreed facts 57 The parties agreed a number of facts that were reduced to writing.37 I accept that these matters have been established and I make findings accordingly. I include in these reasons a number of mobile phone text messages, the content of which is not challenged. Consistent with modern practice, spelling, grammar and punctuation conventions were not often observed. Except for a few entries and where helpful for a proper understanding, I have endeavoured to quote this material precisely as it appears in the telephone traffic records. The Kilburn unit prosecution witnesses A 58 A was examined and cross-examined for a lengthy period of time. However, her evidence that directly supported the prosecution case was of a very narrow compass: that the visit to the Kilburn unit was the last time she had seen or heard from Mr Purse; that the accused punched Mr Purse and bound his hands (only) with silver grey duct tape before she went with D into his bedroom; that, whilst in the bedroom, she heard a “horrible noise, like a wounded animal being killed”; that it was daylight when she first came out of the bedroom briefly at which time the only person present in the Kilburn unit was B; that, when she emerged a second time, it was daylight and she saw the accused and C enter the Kilburn unit together; and that the accused then left after less than an hour. Whilst not examined or cross- examined about E in this context, she made no mention of seeing E come to the Kilburn unit with C. 59 A was cross-examined at length about her pre-Kilburn unit conduct and her post-Kilburn unit conduct as part of a sustained credit attack. I have reviewed that evidence carefully; it is extensive and it is not necessary that I summarise all of it here. The nature of this evidence will be referred to during, or can be discerned from, the following discussion of defence criticisms bearing on her credit and reliability. 60 A was 31 as at February 2019. She had met Mr Purse and immediately thereafter commenced a relationship with him about a month or two prior to the Kilburn unit incident; thereafter, they did not spend a day apart. She had been working as a prostitute at the Parlour, although she maintained that when she took up with Mr Purse she ceased working there at his request. 37 Exhibits P1 and P12A. -- 17 of 121 -- [2024] SASC 127 Nicholson AJ 16 61 Both A and Mr Purse were very heavy (daily) methamphetamine users. At this time, she was “very lost” and would sleep once a week or even every second week. It cannot be doubted that the reliability of A’s evidence, particularly as to its details and order of events, given five years later, would have been adversely affected. She gave this evidence.38 Q. Can you explain in what way it affected your perception of time. A. When you don’t sleep for weeks you forget what day it is, you definitely don’t know what month it is, like, and you very rarely care what time it is. You’re running on a different - you’re living in a different world. Q. What about your perception of time periods, for example, your perception of what an hour feels like or what five hours feels like, something like that. A. No, being on the amount of drugs that we were on, an hour could feel like a minute. HIS HONOUR Q. [A] - A. Yes. Q. - I think you said earlier in your evidence that during this period you might have slept once a week or sometimes longer than that - A. Yes. Q. - or, sorry, once every two weeks. A. Yes. Q. When you did sleep, are you able to say for how long you slept. A. Sometimes I’d sleep like a whole day and then get back up and start again. Q. Was it ever longer than a whole day. A. I know there has been times but I couldn’t tell you when. 62 A first met the accused about a week before the Kilburn unit incident. At this time, the accused and Mr Purse already knew each other. Whilst A gave some hearsay evidence about the nature of their prior relationship, the only direct evidence on this topic is that of the accused and inferences that might be drawn from text message communications between the accused and Mr Purse.39 I digress from A’s evidence to discuss some aspects of this evidence. 63 The accused said that he had known Mr Purse for a couple of months prior to February 2019. The accused had his own methamphetamine habit in 2018 and 2019 and was also a dealer. He had supplied Mr Purse with drugs about six times 38 T117-118. 39 Exhibit P7. -- 18 of 121 -- [2024] SASC 127 Nicholson AJ 17 prior to February 2019, sometimes “on tick” and sometimes for cash. According to the accused, as at February 2019, Mr Purse did not owe a drug debt to the accused (until the night of the Kilburn incident).40 Their relationship was a “funny” one; sometimes “good” and “sometimes not so good”.41 64 The relationship appears to have been “not so good” in late January and very early February 2019. In late January, the accused had arranged for Mr Purse to drive him to Murray Bridge and then to Mount Gambier (about 435 kilometres from Adelaide). The accused was to collect about $84,000 of methylamphetamine from a source, “on tick”. For reasons not clear on the evidence, the arrangement fell through and the accused felt let down by Mr Purse. The accused said that Mr Purse’s failure here cost the accused $5,000 which he had to pay to another person who collected the drugs for him.42 65 A number of phone communications between the accused and Mr Purse had been engaged in culminating in a text message from the accused sent to Mr Purse at 5:52 pm on 26 January 2019:43 So what’s the fucking go you said an hour you would let me know stop fucking me around if you can’t do it just say so. There was a two second voice call between them later that day, the content of which (if any) is not in evidence. 66 Thereafter, no further phone communication between the two is in evidence until 2 February 2019 when, between 3:26 pm and 3:43 pm, the following volley of texts was exchanged (those in italics were sent by the accused).44 Yeh man good luck. Please continue to try and set me up. Forget you know me, or I’ll learn more about you and make Day to Day life painful for years. Nevermind if you succeed, the things I can do can be done in reverse to make life worse. You do not want to make that mistake again: every single person you came across called me. One opted to not kick your head in. Grow up, kick over Sandcastles at Glenelg when you want to be a five year old cunt. Oh yeah that’s cute meet up big boy I’m good. Enough shit in my day. Listen here you tip rat you think your a big boy meet now or when I see you I am going to scrape your face.of with a brick Okay. What I said stands. Fuck off. 40 T643. 41 T426. 42 T521-523. 43 Exhibit P7, entry 88. Plainly, the accused was displeased but just how angry he was cannot be ascertained from the text itself given the absence of tone and punctuation. The use of “fucking” in this context is indicative of frustration and anger, notwithstanding its ubiquity in modern parlance. 44 Exhibit P7, entries 139 to 144. -- 19 of 121 -- [2024] SASC 127 Nicholson AJ 18 Sounds good 67 Late on the next day, 3 February 2019, the accused went to the Birkenhead unit owned by a friend and where various persons known to the accused and Mr Purse would gather from time to time. According to A, she and Mr Purse were at the Birkenhead unit when, as soon as the accused arrived, he violently assaulted Mr Purse to the face with the butt of a shortened shotgun. The accused denied this and said in evidence that it was F who had assaulted Mr Purse. It is not in dispute that the accused, A and Mr Purse were at the Birkenhead unit at the same time.45 68 In any event, from the next day, 4 February at 3:20 pm, until late on 6 February 2019 (shortly prior to the Kilburn unit incident) the terms of the text messages between the accused and Mr Purse are consistent with either their relationship having resumed a more equanimous state or with the accused not being the person who so recently had violently assaulted Mr Purse.46 I confine myself to the term “consistent” because: there was a number of telephone conversations during that period the content of which is not in evidence; there was opportunity for face-to-face conversations to have occurred as to which, if they did, there is no evidence; and there are aspects of the text messages, just referred to, redolent of Mr Purse trying to accommodate or ingratiate himself with the accused and of the accused attempting to placate Mr Purse’s anxiety in not being able to do so. 69 I return to my consideration of A’s evidence. A said that she and Mr Purse went to the Birkenhead unit, although she could not remember at what time of day. A number of other people were there. The accused arrived with another man. The accused went directly to Mr Purse and beat him in the face with the butt of a shortened shotgun. A heard a horrible scream and saw blood coming from Mr Purse’s ear and nose and that blood vessels in his eyes had burst. A form of negotiation between Mr Purse and the accused took place. Mr Purse was given a week to provide the accused with four new mobile phones and either $1,000 or $10,000; A could not now recall which of the two amounts. 70 A spoke of another incident, one which involved Mr Purse apparently hallucinating, that occurred at an On the Run convenience store on North Terrace a few days before the Kilburn unit incident. It is unnecessary to go to this evidence in detail. The accused had no involvement. Plainly, Mr Purse was terrified, fearing that a named person (not the accused) had a gun and was going to hurt him. The police came and Mr Purse was taken to hospital. There is nothing in the evidence to expressly or impliedly connect the accused in any way with this incident. I have had no regard to it other than as indicative of Mr Purse’s state of mind as at early February 2019 and as a source for a defence criticism of A’s evidence, dealt with later in these reasons. 45 This is also supported by agreed facts 16.1 and 16.2 in exhibit P1. 46 Exhibit P7, entries: 188 to 197, 235, 239, 243, 246, 247, 251, 253 to 257, 276 to 280, 282 to 284, 293 to 295, 300, 303 to 307, 312, 313, 318, 319, 327, 341 to 346, 348 and 349. -- 20 of 121 -- [2024] SASC 127 Nicholson AJ 19 71 A gave detailed evidence concerning the lead up to the accused taking her and Mr Purse to the Kilburn unit. On the evening of 6 February 2019, she and Mr Purse went to the Hindley Street and Casino areas of the city. Mr Purse had not organised any phones or money for the accused but did not appear to be concerned. As earlier noted, the text message exchanges between the two men suggest that the relationship was back on an even keel, at least insofar as Mr Purse may have understood the situation. According to A, the accused was contacted and asked if he could supply drugs and lend them $50 for a hotel room. The accused agreed to meet them in the city. 72 The accused met A and Mr Purse in an alleyway off North Terrace. The accused asked A to go with him to an automatic teller machine to get the money. According to A, she got in the car, leaving Mr Purse in the alleyway, but the accused, instead, drove to “Port Quays”47 where he forced her to engage in sexual acts with him.48 73 In the car, the accused asked A if Mr Purse had organised the phones and cash. A replied “I don’t think so” to which the accused responded “well, you know what happens next, don’t you”.49 The accused denied that this conversation occurred; it was not put to him in cross-examination. I have placed no weight on this evidence of A. 74 The accused gave a quite different account, denied by A. He said that he met A for the first time at the Birkenhead unit when Mr Purse was assaulted by F and that he subsequently did have a “physical relationship” with A on “one or more occasions”.50 However, he denied having sex with A on the “Port Quays” occasion. A had asked for a lift to “Port Quays” so that she could do a job. She directed the accused to a unit block; he waited in the carpark for about 20 minutes until she returned and they then returned to the city.51 According to the accused, on the way back, A asked if the accused had been able to obtain any “business” (of a sexual nature) for her and also suggested to the accused a scheme for robbing Mr Purse and sharing the profits. The accused gave this evidence.52 Q. Then you mentioned something about robbing Michael Purse. What exactly was said by her at that time. A. She advised me that he had money from a taxation job he did and that was hidden in accounts, and to obtain it and we’ll go halves. 47 Port Quays is a suburb of Perth, Western Australia. There is an apartment development, Newport Quays, in the Port Adelaide area. It is common ground that it was this location or area to which the accused and A drove. 48 T142-143. 49 T143. 50 T428. 51 T436-442. 52 T442-443. -- 21 of 121 -- [2024] SASC 127 Nicholson AJ 20 HIS HONOUR Q. Hidden where. A. In bank accounts. XN Q. Her exact words was to do what. How were you going to get that money from those bank accounts. A. By finding out the account numbers, getting Michael to log on and transferring it. According to the accused, A told him that Mr Purse was a police informant.53 However, the accused also gave evidence that he knew Mr Purse was a “dog” within a week of meeting him.54 75 I return to A’s account. On their return to the city, they collected Mr Purse and set off to the Kilburn unit. The accused had told them that he had methamphetamine stored at the unit and that he could supply an eight-ball to Mr Purse “on tick” for him to on-sell. The accused was being “super nice” to Mr Purse throughout the journey; there was no apparent animosity between them. 76 A, together with the accused and Mr Purse, arrived at and entered the Kilburn unit “late at night”.55 According to A, the accused made introductions and things then moved “very quickly”.56 Q. Once the introductions are done what happens. A. I can’t remember if it was before or after but very quickly [the accused’s] punched Michael again and Michael’s on his knees and one of the people of the three standing over by the corner say something like ‘You’re a bit fucked aren’t you mate’, excuse my language, and [the accused’s] asked for duct tape and one of the three have gone and got duct tape and he’s taping Michael’s hands together and Michael looks up at him and says ‘No, we’re business partners everything’s going to be fine’. It was C who said “you’re a bit fucked there aren’t you mate” and the accused who called for the duct tape.57 77 After A saw Mr Purse’s hands being bound together with silver grey tape about 2.5 centimetres wide,58 A and D went into D’s bedroom.59 D left his bedroom for a short time whilst music was playing in the bedroom.60 A sat on the end of the bed and listened to voices – “it sounded like all the people that were out there 53 T443. 54 T445, 568. 55 T147. 56 T158. 57 T158-160. 58 T161. 59 T161-163. 60 T167. -- 22 of 121 -- [2024] SASC 127 Nicholson AJ 21 before”. After D had returned, A heard a “horrible noise, like a wounded animal being killed” which she recognised as coming from Mr Purse.61 It was similar to the noise she heard from Mr Purse during the Birkenhead unit assault. 78 A first left the bedroom with D when it was daytime in order to get a drink and only B was present in the loungeroom.62 A saw that the furniture in the loungeroom had been moved around. She did not immediately notice anything about the carpet but realised later that it was no longer there.63 The next time A left (“was dragged out of”) the bedroom, she saw C and the accused walk in through the front door; “they looked very worried”,64 “it’s the one and only time [she’d] ever seen [the accused] look scared”.65 When C came in he walked straight into his bedroom. Neither the accused nor C said where they had been.66 The accused left “less than an hour” after A saw him come in through the front door.67 79 I note here that A’s evidence in chief on this topic can be seen as consistent to a degree with the defence case which is to the effect that the accused, having left the Kilburn unit on his own in the early hours when still dark and whilst Mr Purse was still alive, did return during daylight, on his own, but entered the Kilburn unit at the same time as did C. That is, coincidentally, he had arrived separately from C and E but at the same time that they arrived in C’s original Daewoo. 80 There was a stark disagreement between A and the accused concerning her role upon her arriving at the Kilburn unit. A said that very soon after their arrival, at or about the time the accused initially punched Mr Purse, the accused directed her, much against her will, to go with D to his bedroom.68 Q. Now, you’ve told us a comment was made about you going to another room. A. I was told to go into the other room with [D]. Q. Who told you that. A. [The accused]. Q. What were the - do you remember the words that [the accused] used. A. ‘My friend just got out of gaol, it’s been a while since he’s had some pussy, go and remind him what it’s like’. Q. Did Michael say anything when that happened. 61 T165-167. 62 T166. 63 T171-172. 64 T168. 65 T169. 66 T169-170. 67 T169. 68 T162-163. -- 23 of 121 -- [2024] SASC 127 Nicholson AJ 22 A. No. Q. Did anyone else say anything in response to that comment. A. I replied. Q. What did you say. A. I said I’m not, said ‘I’m not a prostitute anymore you can’t tell me what to do’. He said ‘Yes I can, you will go in that room’. Q. What did you do. A. What I was told because it was quite clear from the room that I had no choice. Q. Did you go into another room. A. Yes. The accused’s version was very different. According to him, one of the three purposes for going to the Kilburn unit, as had earlier been discussed with A, was for her to entertain D and make some money. 81 A said that, later the next morning, after the accused had left the Kilburn unit, she was detained there at the accused’s insistence.69 She could not say for how long but it “felt like a lifetime”.70 At some point, she, B and C went out in a car to source drugs. She gave this evidence concerning the state of the car.71 A. We all went in the car. Q. Can you describe the car that you went in. A. No. Sorry, it’s just - I don’t remember what it looks like. All I remember was – I don’t know if you know what a dead body smells like, but I was in the back seat and it’s - it’s horrible. I don’t know what the colour - it was a small car. There was like a whole bunch of air fresheners trying to cover up the smell. That’s all I remember. Q. And was that a smell you detected sitting in the back of the car. A. Yeah. It was very - it wasn’t subtle. Q. You describe it as the smell of a dead body. A. It was, yes. Q. How did you know what that smelt like. A. I lived up in - south at one point and we had a whole bunch of field mice come into our roof during the winter. So when the pest exterminator went up there and put the 69 T169. 70 T170. 71 T170-171. -- 24 of 121 -- [2024] SASC 127 Nicholson AJ 23 pellets to kill them, it - none of them ran. So we had like 100 or more dead rats in our roof, like to the point where maggots were coming out of the walls at some point. It’s - it was exactly like that. 82 The defence criticised various aspects of A’s evidence, concerning what she said she saw at the Kilburn unit and her observations and behaviour before and after the Kilburn unit incident, all said to bear on her credibility and reliability. She was also taken to her criminal record. 83 I accept that A’s ability to accurately perceive and accurately recall, five years later, the detail of relevant events was significantly affected by her heavy and constant methamphetamine use during the early months of 2019. 84 The conduct of Mr Purse and A during the five days or so after the Birkenhead unit incident: as indicated in the text exchanges with the accused;72 in Mr Purse and A approaching the accused for drugs and money; in A travelling with him to “Port Quays”; and then both travelling to the Kilburn unit without any apparent coercion by the accused, is consistent with the accused’s account of someone else, perhaps F, having violently assaulted Mr Purse at the Birkenhead unit and with the accused, and Mr Purse and A, having an amicable relationship in early February 2019, contrary to A’s characterisation. I accept that there is a level of consistency here. 85 The evidence of A that, notwithstanding her substantial and expensive methamphetamine habit, she ceased her work as a prostitute immediately upon taking up with Mr Purse lacks plausibility. She still needed access to money. 86 Prior to meeting Mr Purse, A had stayed for a few days with a man who lived in “Port Quays”, whom she denied was a customer.73 She denied going to “Port Quays” during the late evening of 6 February 2019 to see this or any man for a prostitution purpose. However, it would seem an unnecessarily long way for the accused to have driven that evening only in order to find a location where he could force himself on A in the car. The accused has not been charged with any criminal offence related to this allegation. 87 A was asked about the Parlour.74 The cross-examiner’s questions were imprecise resulting in some answers by A being ambiguous.75 In evidence is a redacted copy of a form apparently completed by A by hand. A said she did not remember the form.76 That form is a “Reg of Interest to provide Massage 72 Exhibit P7. 73 T176. 74 T176-177. 75 T176-177. 76 T176. -- 25 of 121 -- [2024] SASC 127 Nicholson AJ 24 Services”.77 It relates to the Parlour78 and states that, as at 8 January 2019, A was willing to offer her services “ASAP”. The form contains the following: We provide our clients a nonsexual massage service. Any persons found to be providing any service of a sexual nature will be terminated immediately. 88 No evidence was received concerning the nature of the Parlour business other than this redacted copy of the registration of interest form and intimations from A. However, I make the following observations. It is unlikely that any massage parlour would positively acknowledge the provision of sexual services; rather it is likely that even if such were to be available, public statements and documentary records would be silent in this respect or would assert the contrary. In addition, there was no evidence from A, but opportunity to have given it, to the effect that she had training and experience in conventional massage, that is, as an allied health service. Her registration of interest form did not request and provided no space for, an applicant to set out their training and experience – something a prospective employer of qualified masseurs would want to know. Furthermore, A did accept that she was working for the Parlour in the weeks after the Kilburn unit incident. 89 I make no finding that A lied about giving up prostitution during her time with Mr Purse. However, it remains an open question in my mind. As such, in the circumstances, I am not persuaded by A’s account of the reason she and the accused travelled to “Port Quays”. I am also not persuaded by her evidence that she was an unwilling participant when she went with D to his bedroom, which evidence was vehemently contradicted by B. 90 On 17 February 2019, 10 days after the Kilburn unit incident, A took part in a joint criminal enterprise with the accused to rob the Parlour. A was working there and acted as an inside co-conspirator. She pleaded guilty to aggravated theft and threatening to kill or endanger life. A explained that she had cooperated with the accused under a form of duress; he threatened her by pointing a gun in her face. However, she did not raise this as a defence to the charges.79 91 In any event, it is puzzling that A, apparently, maintained a relationship with the accused so soon after the Birkenhead and Kilburn unit incidents. Her evidence was that she believed the accused to have killed Mr Purse. However, her phone records indicate a number of communications or attempted communications with the accused very soon after. At 9:01 pm on 7 February 2019 (the very evening of the day of the Kilburn unit incident) A’s phone sent a text to the accused – “yo” – an apparent greeting seeking a response. Thereafter, between 10:31 pm on 7 February and 12:56 pm on 10 February 2019, six calls from A’s phone to the accused went unanswered and there were two telephone conversations between A’s phone and the accused’s phone (two minutes and 59 seconds and nine seconds, 77 Exhibit D8. 78 T393 (Mr Horder). 79 As at 2019, duress could operate as a defence in South Australia to any offence other than murder or perhaps attempted murder. -- 26 of 121 -- [2024] SASC 127 Nicholson AJ 25 respectively). On 10 February 2019 at 12:44 pm, probably in response to a voice message left about one and a half hours earlier, the accused responded with a text – “yo what’s up”. Except where otherwise indicated above, the content of the various communications (text, voice message or phone conversation) is not in evidence.80 A said that she did not have control of her phone for three days whilst she was kept at the Kilburn unit and that B or C may have used her phone to try and contact the accused who had proved difficult for them to contact in the days after the Kilburn unit incident. However, B’s evidence is that A was only detained until the next day, 8 February 2019 and that A’s phone had not been confiscated. 92 The Parlour robbery in which A participated is an offence involving dishonesty. Nevertheless, on its own, and in particular if A’s explanation of duress were to be correct, it ought not be a major impediment to the acceptance of A as a witness capable of truth. However, in the circumstances set out above I, again, am not satisfied that A has been full and frank about the Parlour robbery and her relationship with the accused at the time of and after the Kilburn unit incident. I am not in a position to make positive findings of dishonesty in these respects but I do approach her evidence on these topics, and therefore generally, with circumspection. 93 The defence criticised or challenged many other, more minor, aspects of the evidence of A to which criticisms I have had regard. Without being comprehensive, I provide the following examples. 94 A at first denied knowing a person, PI. However, when prompted that he was the owner of the Parlour she said that she had dealt with a female when working there; she had met PI once but did not know his last name.81 I do not accept the defence submission that A lied when initially she said she did not know a person called PI. 95 A went on to deny having told PI that: (a) she was having consensual sex in another room whilst her boyfriend was being assaulted; (b) one of the guys “pistol whipped” Mr Purse during the Kilburn incident; and (c) “some guys came in to get rid of the body and to tidy up the house”.82 It is an agreed fact that:83 The following is to be treated as the evidence of [PI], had he been called to give evidence in the trial: 80 See exhibit P7, entries: 379, 384, 395, 396, 398, 399, 402, 403, 410, 411, 438, 439, 483, 484 and 486. 81 T176-177. 82 T179-181. 83 Exhibit P12A, agreed fact 59. -- 27 of 121 -- [2024] SASC 127 Nicholson AJ 26 In a conversation with [A] about 1 week after the [Parlour] Robbery [A] told him the following: “[A] said that she had been having sex with one of the males in another room whilst the assault on her boyfriend was taking place.” “One of the guys pistol whipped Michael during the assault.” and It is [PI’s] recollection of her account that: “the assault went on for a few days”. It can be seen that PI would have given evidence in terms of (b) above but not (a) (no mention of “consensual”) nor (c). 96 PI was not cross-examined. However, for present purposes, I accept that he would have maintained his evidence in accordance with agreed fact 59. Given that I did not see or hear PI give evidence, I am not in a position to make a credit finding. I accept his evidence as truthful. It is possible that PI has conflated A’s account of Mr Purse being hit in the face with the butt of a shortened shotgun at the Birkenhead unit with an account of the Kilburn unit incident. I am not satisfied of any dishonesty by A here, although there may have been some inconsistency between what she told PI and her evidence in court bringing into question her overall reliability. 97 The defence criticised the following evidence given by A during cross- examination.84 Q. Do you recall speaking to an officer by the name of Ann Katherine Schaefer - A. Yes. Q. - and that conversation, I’m going to put to you, took place on 24 May 2019, do you recall a conversation you had with Officer Schaefer at that time. A. No. Q. Did you at any time deny any knowledge as to what happened to Mr Purse to that officer. A. Yes, because there were people currently looking - the ones that are now behind bars were looking for me in my area. Detective Schaefer confirmed that A initially did deny any such knowledge and that she appeared “worried, scared”. However, A later overcame her reluctance and provided a more fulsome account.85 There would appear to be nothing untoward in such behaviour. 84 T181. 85 T411-412. -- 28 of 121 -- [2024] SASC 127 Nicholson AJ 27 98 A said in her evidence that the accused had behaved in a threatening manner outside her house after the Kilburn incident.86 However, she agreed that she did not complain to the police about this. During cross-examination, A gave this explanation in answer to the cross-examiner’s implied criticism.87 Q. Did you make any complaint to the police about that at any time, that he had been out the front of your house. A. Do you understand how - he knows where my family lives, I just watched him murder my boyfriend, why would I put my family in danger? Q. Well, first of all, you never saw him murder your boyfriend at all, did you. A. No, I did not see. Again, there would appear to be nothing untoward in such behaviour. 99 The defence further submitted that A’s assertion that she watched the accused murder her boyfriend should be treated as a lie. It certainly is untrue; A did not see Mr Purse being killed, let alone “murdered”, and nowhere in her evidence, other than at this point, did she say so. She was expressing a belief not a deliberate untruth. However, I do accept the defence submission that she demonstrated: … a biased and one eyed view … and a strong degree of animosity towards [the accused which] can be used in assessing the character of [A] and whether she would be motivated to tailor her evidence and lie under oath. A’s bias and animosity is probably justified. However, it does not necessarily follow that any established bias or animosity caused A to give evidence that has been tailored and to lie under oath. Nevertheless, A’s evidence must be viewed with circumspection given her emotional involvement; she was not an independent or disinterested witness. 100 The defence put to A, during cross-examination, numerous prior statements she is alleged to have made to various persons, including the accused. In almost every case, A either denied or said she had no recollection of saying those things. Apart from alleged statements to the accused about which he has given evidence, the more important of which are referred to earlier and the possibility inherent in agreed fact 59, there is no evidence contradicting her denials. 101 There are a number of aspects of A’s evidence that are inconsistent with or were contradicted by B’s evidence. Some examples do not strike me as being of any particular significance. However, there was a stark contrast between the evidence of the two women concerning whether A’s belongings, particularly her mobile phone, were confiscated while at the Kilburn unit and whether her involvement with D was coerced and against her will. B denied the former and 86 T181-182. 87 T182. -- 29 of 121 -- [2024] SASC 127 Nicholson AJ 28 was adamant that A’s conduct with D was very much consensual. She made this point a number of times in quite entertaining language, for example:88 Q. We will just deal with your observations of [A]. Did [A] put up any opposition to going in the bedroom with - what was the expression? A. No, she was not held against her will. She was with bells on for a smoosh mate. In there with bells on. Q. And when you refer to a ‘smoosh’ you are referring to them obviously having sex at that time, aren’t you. A. Yes. Rolling around in the hay is what I’m referring to made (scil: mate). Q. Did you see at any time see [D] dragging her out of that room at any time. A. No. Q. Or dragging her back into the room. A. No. Q. So for all intents and purposes from your observations it appeared as though she was a willing participant in going into the bedroom; is that right. A. 215% correct. Q. And did anybody say anything to get her to go into that room at all. A. No. She liked what she saw and she bit the bait and she was in there like a fly on shit. I mean, excuse me. Q. That’s all right. I think we know what you are referring to. 102 As I will explain further below, I am satisfied that in general B’s evidence was frank and reliable. I have found B’s evidence concerning the apparent role of A vis à vis D at the Kilburn unit to be more persuasive. This issue has caused me some concern about finding A’s evidence to have been fulsome and frank in all respects. 103 A said that as at the time of trial she had been free of illicit drugs for three years and was taking suboxone to help her stay off drugs, fluoxetine, an antidepressant, and seroquel to assist with sleeping.89 She conceded that, in 2020, she had committed a number of breaches of bail by failing methylamphetamine testing. 104 The defence was particularly critical of A’s behaviour concerning the various text messages and voice conversations between her and the accused after the Birkenhead and Kilburn unit incidents. I have already canvassed this issue. 88 T313-314. 89 T188-189. -- 30 of 121 -- [2024] SASC 127 Nicholson AJ 29 105 The defence submitted that A lied during cross-examination in saying that she was kept in the Kilburn unit for three days. She did say this. However, her evidence on this point was elicited more fulsomely in questions from the Bench.90 HIS HONOUR Q. Can you explain again what you just said. A. So, I remember in the days after, while [D] was driving - Q. Where were you in the three days after the time when you say Mr Purse was killed. A. I was kept in that house. Q. You were in that house. A. Yes. Q. For how long. A. I couldn’t tell you. It felt like forever, but I remember a day and night coming. So at least two or more days. B said that she thought A had been sent on her way in the late afternoon of 7 February 2019.91 Nevertheless, I do not accept the defence contention that A’s statement that she was kept for three days is to be seen as a lie. A was giving evidence some five years later; she had been heavily affected by her methylamphetamine usage and her language is that of estimation or belief as a consequence of what it felt like. 106 However, A in the immediately preceding passage of cross-examination also said that during the period she was kept in the Kilburn unit, C, D, and B were the only other persons in the house and, in effect, had total control over her and her phone, and used it to contact or try to contact the accused.92 No. Actually, from what I remember, the three people in the house were very angry that [the accused] had left him - them there with the body and he wasn’t answering the phones at all. So they were wanting to use my phone to try and get a hold of him. The defence contended that A was lying about this in order to distance herself from using her phone to attempt to communicate with the accused on 10 February 2019. These communications comprised a two minute and 59 second call from A at 2:38 am, a text from the accused at 12:44 pm saying “Yo what’s up”93 and a nine second phone call94 some 12 minutes later emanating from A’s phone which the defence contended was in response to the text. B denied taking A’s phone and did 90 T207. 91 T292-294. 92 T207-208. 93 Exhibit P7, entry 485. 94 The content of which is not in evidence. -- 31 of 121 -- [2024] SASC 127 Nicholson AJ 30 not see C take it.95 She referred to a text she had sent to D telling him to keep an eye on A’s phone. If, as I find likely, A left the Kilburn unit late on 7 February 2019, the attempted communications from her phone to the accused’s phone on the following days would have come from A. 107 A was examined and cross-examined about the incident with Mr Purse at the On the Run convenience outlet a few days before the Kilburn unit incident. She initially denied that she had called the police or made a “000” call. Plainly, the latter was incorrect and she had no choice but to concede this when a recording of the “000” call was played during cross-examination. The defence contended that she had lied in court. However, there was nothing to be achieved by lying. This was an unrelated incident, albeit one that disclosed Mr Purse’s delusional state at the time and underlying serious fear of an associate. Given A’s apparently genuine surprise upon recognising her voice at the time the call was played and whilst this is another matter affecting the reliability of her evidence as already discussed, I am not persuaded that A lied on this occasion. 108 The defence contended, at least by implication, that A’s demeanour was unsatisfactory and referred, by way of example, to the following exchange with the Bench.96 HIS HONOUR Q. [A], I think - A. - I just remember him punched and - Q. [A], sorry, stop, stop. A. Sorry. Q. My recollection is that at some point you said when were you in the car afterwards you went shopping and - A. Sorry, when is this - with the two people? Q. With the two people - A. Yes. Q. - and the woman in the car bought some things and I thought you mentioned, I could be wrong, something to clean up blood. A. Yeah, she went into - again, I wouldn’t call it me going shopping, I was being taken - Q. No, sorry, I didn’t mean to say that. I didn’t mean to suggest you were going shopping. 95 T311, 351. 96 T221-222. -- 32 of 121 -- [2024] SASC 127 Nicholson AJ 31 A. So, yeah, she brought a soap that literally said on the front of it ‘Can clean blood stains up’. Q. I think that’s the bit of evidence that [defence counsel] is referring to. A. Okay, yes. HIS HONOUR: Is that right? [DEFENCE COUNSEL]: It is, yes. I recall engaging in this exchange. The concern was a simple one: cross-examining counsel, in a rather lengthy statement to the witness, had tried to identify or signpost a topic about which he wished to question A. However, she appeared to be a little frustrated and started to revisit the topic rather than await counsel’s questions. I needed to get her attention so that I could have her wait for counsel’s next question. I draw no adverse inference from her “demeanour” at this time. 109 As it happens, I was impressed with A’s overall demeanour. She was willing to address the issues raised and she presented, by and large, as calm and deliberate. That is not to say that I accept everything she said as reliable, and she may have been dishonest at times. There were inconsistencies, matters that did not ring true and areas of her evidence that did not sit well with other aspects of the evidence in the trial, including the number of mobile phone communications and attempted communications to and from her device and that of the accused and the evidence of B. It is not necessary that I accept all of A’s evidence as truthful and reliable. I am entitled to accept some parts notwithstanding that I might reject other parts. It is trite to say that honest witnesses sometimes get things wrong and that witnesses found to be dishonest and unreliable with respect to some topics might nevertheless give honest and reliable evidence on other topics. B 110 B was about 22 at the time of the Kilburn unit incident. [Redacted]. The accused supplied methylamphetamine to C, [redacted]. She described her relationship with the accused, leading up to and as at 2019, in these terms.97 [Redacted] . . . . Q. We’ll get to the details in a moment, but was there an incident that occurred at a unit you were living in at that time. A. Yeah. 97 T259-260. -- 33 of 121 -- [2024] SASC 127 Nicholson AJ 32 Q. As I say, we’ll come to those details in due course, but prior to that incident and the years, months and days leading up to it, were you in contact with … the accused. A. So, like, as I said, on and off, but he - it was just by coincidence that he was one of the people who used to drop stuff off to [C] and it turned out ‘Oh, I know him’. Q. And the stuff that was being dropped off, is that drugs. A. Yeah, methamphetamine. 111 In February 2019, B, C, and C’s friend, D, were living in the Kilburn unit. Each was consuming half an eight-ball, up to 20 pipes, or more of methylamphetamine a day.98 This may be an exaggeration.99 However, and in any event, B described the effect of her level of consumption as follows.100 Q. What effect did, if you’re able to say, methylamphetamine have on you and, say, your perception of time. A. Made it a bit poor. Q. Has it had any effect on your recall of events. A. No, not really, because this was horrifying. This is something I’ll never forget for the rest of my life. Ever. I interpolate here that B’s tone and general demeanour were such that she clearly intended “a bit poor” sarcastically and in the sense of an understatement. 112 B, from the moment she walked to the witness box, was extroverted, voluble and a very powerful presence. She was extremely confident about the events that she said she could remember and readily dismissed questions concerning her recollection of peripheral issues that she could not be confident about. I remind myself that confident witnesses can confidently give unreliable or otherwise incorrect evidence and that timid or hesitant witnesses can be accurate and reliable in their evidence. B had a number of memorable, and often sarcastic, turns of phrase to justify her inability to recollect when pressed about the periphery, for example “didn’t haunt me for the rest of my life. It wasn’t quite a murder moment”.101 113 Cross-examining counsel’s repeated attempts to unearth or to test step-by- step detail caused B to be greatly frustrated on a number of occasions, such as in the following example.102 98 T265. 99 To the less initiated, these daily quantities might seem extraordinary. Perhaps of more note, at the time, according to the accused, the cost of an eight-ball (approximately 3.5 grams) was about $500 to $600. As such, these three occupants were consuming between them an extraordinary $750 to $900 of methylamphetamine a day; $5,250 to $6,300 per week. 100 T266. 101 T313. 102 T325-327. -- 34 of 121 -- [2024] SASC 127 Nicholson AJ 33 Q. He didn’t at any time say ‘I’m going to kill him’, did he. A. No. Q. Indeed, no discussion was had that you heard at any time of any plan to kill Michael Purse. A. No. Q. After [the accused] had that discussion with you, where did [the accused] go. A. Back down to the lounge room where Michael Purse was. Q. And did you remain in your room or did you come out back to the lounge room. A. Minor detail. Q. I appreciate that, but I just want to know what you saw next in this whole scenario. A. Is there any other questions that you want to ask me that’s not asking me to give you my version of events in the statement that I’ve already written? Is there anything in particular or anything that you’d like me to say without me reading my statement out, which I know that you have read? Q. I just want you to answer my question the best that you can and, if you can’t, that’s fine. The next thing that you remember after the discussion you had with [the accused] and you asked him to get them out of there, and he responded in the way that he did, what’s the next thing that happened that you saw on this day. A. [The accused] yelled out and asked for the tape. Q. I want to put it to you [the accused] never yelled out and asked for the tape but you brought the tape down there and - A. You weren’t there and I’m telling you he did. Q. When you say he yelled out for the tape, I thought you said previously in your evidence that he came down to the bedroom and asked for the tape when you were there. A. So - Q. What’s the position. A. Minor detail again. So, he did yell out for the tape first but I didn’t end up bringing the tape out. Q. You did bring the tape out. A. No, I didn’t, and then he’s come up and grabbed the tape because I didn’t hear him. Q. I want to put it to you that you gave the tape to [C] and [C] brought the tape out. A. I don’t care who brought the tape out, man. This is starting to frustrate me. This is starting to frustrate me, like really frustrate me. -- 35 of 121 -- [2024] SASC 127 Nicholson AJ 34 Q. I’m just asking you to cast your memory back - A. To five years ago. Q. - and I want to be clear about this, that are you sure that - A. I’m foggy on it. Moving on. Next question. Q. Did [C] grab the tape from you is what I’m asking you. A. I can’t remember. Obviously that’s the point that you’re making. So there you go, I cannot remember. Next question. Q. So, when you said [the accused] grabbed the tape in your evidence before, you’re uncertain about that. A. Oh God, I’m not going to say it again, man. HIS HONOUR Q. [B]. A. Yes. Q. You were there. We weren’t. A. Yes, but I’m telling you I cannot remember. Q. I know that - A. So he moves on with the questions. Q. - but he might prod your memory if he asks you more detailed questions. A. Yeah. He’s not gonna. Q. Well, we don’t know. So just relax. Not long to go for the afternoon. Just relax. Don’t get frustrated and just answer his questions as best you can. If you can’t remember, just say ‘I can’t remember’, but you might remember something. XXN Q. When the tape went out, did you see who grabbed the tape and who was using it. A. [The accused]. Q. Are you sure about that. A. Yep. Q. Not a minor detail that could be lost in your memory as a result of drugs - A. Nuh. -- 36 of 121 -- [2024] SASC 127 Nicholson AJ 35 114 B entered the court with an apparent belief, expressed in strong terms, that she had witnessed a murder. At no time did she resile from this position. Of course, I am not interested in her belief or opinion, only her evidence of fact; what she saw and heard. I have ignored any personal views she expressed. 115 According to B, the accused telephoned her and C late in the evening on a day in early February to ask if he could bring “shorty” (a cut down firearm) around for them to look after. She said the call was on loudspeaker and occurred about 10 or 15 minutes prior to his arrival.103 They agreed. It was a complete surprise to B when the accused arrived with Mr Purse and A, neither of whom she had met before. The defence submitted that this lack of notice serves to exclude any plan or arrangement having been entered into, prior to arrival, to bring Mr Purse to the Kilburn unit to assault or murder him. I accept that submission. There is no evidence in support of any such plan or arrangement being in existence prior to arrival. 116 B was extremely unhappy and angry about the unannounced arrival, late at night, of people she did not know. She expressed this to the accused and C in no uncertain terms a number of times, for example:104 Q. You told us the accused … had called you and said he was coming around and at that stage you didn’t know he was bringing anyone with him. Are you with me so far. A. Yep. Q. You unlatched the door. A. Yep. Q. Did you open the door or just unlock it. A. Unlatched it. Q. So tell me what happens from there. A. [The accused] comes in the door, a girl comes first and then Michael, and [the accused] closed the door. Q. The girl, did you know she was coming. A. No, no-one. I knew no-one was coming. Q. And had you met that girl before. 103 I note that according to exhibit P7 entries 340 and 347 the accused had two voice calls with the B/C device (content not in evidence) early in the morning of 7 February: one at 12:55 am of two minutes and 23 seconds and one at 1:32 am of four seconds. Given the subject matter, the call referred to by B must have been the earlier at 12:55 am. 104 T271-272. -- 37 of 121 -- [2024] SASC 127 Nicholson AJ 36 A. No. Q. Did you know who she was. A. No. Q. I think you’ve told us this already, but the bloke Michael, you didn’t know him before, never met him, was that right. A. No. Q. Were they introduced to you. A. Yeah, after I started - stopped carrying on about [the accused] bringing people over. Q. Tell us about you carrying on, what happened. A. Well, one would assume [the accused] would know me better and know that I don’t like people and you don’t bring people unannounced, especially unannounced. Q. Did you convey that to him. A. Yep, I said ‘Who the fuck are these cunts?’, that’s exactly what I said. Q. What did he say. A. ‘Long story’. 117 B was taken through her account of what she saw take place in the Kilburn unit a number of times in her evidence in chief and in cross-examination. She was consistent with respect to her observations of matters that were more horrifying (to use her word) and central to the prosecution case. Nevertheless, the defence has pointed to a number of inconsistencies within her evidence, inconsistencies when compared with A’s evidence, inaccuracies and failures of recollection. By and large, these concerned peripheral matters, each of which taken in isolation does not undermine B’s central account. A question for the trier of fact is whether or not these various inadequacies, taken as a whole, cause reasonable doubt as to the truthfulness and reliability of B’s central account. She said this.105 Remind you, just reminding you, this is five years ago almost or something like so like, you know, this is five years ago. So the little nitty-gritty bits of who said what, when all the people walked in, with all the methamphetamine that I have smoked, might not be as squeaky clean. Yep. But the major details and the, yep, all that sort of stuff is not forgotten. 118 What follows is a summary of B’s central account, distilled essentially from her evidence in chief. It comprises my understanding of B’s evidence not just of the events she said she witnessed but of their chronological order. 106 105 T272. 106 She was taken to various events more than once and, at times, a consistent timeline was not followed either by her or by both counsel, potentially giving rise to confusion as to the precise order of events. -- 38 of 121 -- [2024] SASC 127 Nicholson AJ 37 119 After B’s initial remonstrations and the cursory introductions, and while all, including C and D, were in the loungeroom, B saw the accused punch Mr Purse twice to his head with a closed fist.107 C and B then went to their bedroom.108 120 After C and B went into the bedroom following the two punches, C left the bedroom. B heard “yelling” and recognised that it was the accused’s voice. She then also left in order to get C to come back into their bedroom, again remonstrating “what the fuck” and “who are these fucking people?” and “I don’t want people here, get them the fuck out”. 109 121 Whilst B was in her bedroom, the accused called out for “tape” and gaffer tape was given to him. B was challenged at some length during cross-examination about this incident; the fact that it occurred at all and as to detail.110 I have earlier set out a lengthy passage of cross-examination dealing, inter alia, with this issue of the tape. I will set out, in full, B’s first description given in evidence in chief; it is an important piece of evidence.111 Q. Do you come out of your room again at any stage. A. Yeah, [the accused] comes down to the bedroom and asks me for some tape, I gave him some tape and told him how I don’t like people coming over and he knows better than - to know that I don’t like people coming over. Q. What kind of tape did he ask for. A. Any tape but it was gaffer tape, grey gaffer. Q. Did you give that to him. A. Yep. Q. Where did you get that from. A. Our room. Q. Did you ask him what the tape was for. A. No. Q. Did he say anything about what he was going to do with the tape. A. No. Q. After you gave him the tape, what did you do. A. Sat on my bed. 107 T276-277, 318. 108 T272-273. 109 T273-274. 110 See at T325-327 the cross-examination set out earlier in these reasons. 111 T274-276. -- 39 of 121 -- [2024] SASC 127 Nicholson AJ 38 Q. Then what happened. A. I come back down the hallway, Michael Purse’s hands are taped, he’s on the floor, he’s laying on the floor. Q. Can you describe how his hands were taped. A. Together. Q. Whereabouts was the tape, like, was it the wrists or the hands - A. Like you know where you put handcuffs? Sort of like that. Yep. Q. And how much tape was on his hands. A. I don’t know, I didn’t measure it before - before he put it on him. Q. Was it the hands and wrists or was it just the hand, can you give us an idea of how taped up he was. A. It’s like this (DEMONSTRATES), it’s like he was handcuffed, I think I already said that. Q. You’re indicating your wrists together in front of your body. A. Yep, correct. That’s why I’m doing the (DEMONSTRATES). HIS HONOUR: With the fists closed. [PROSECUTOR]: Thank you. A. Yep. XN Q. Did you see the tape being applied or was it - A. No. Q. - already applied. A. Already applied when I come out. Q. What position was Michael in, like, how was he physically position. A. Like a fetus position on the floor. Q. Apart from his hands, was there anywhere else that tape had been applied. A. I think on his feet, couldn’t see, the coffee table was in the way. Q. Did anyone appear injured at that point in time. A. Yes, he was injured, his ear was swollen, his eyes were taped, mouth - Q. Describe how his eyes and mouth - -- 40 of 121 -- [2024] SASC 127 Nicholson AJ 39 A. You know like how in the television programs, when they blur out the eyes with the black little shield, it was like that, it’s us like his eyes were taped. I’m not understanding - we’re not following you. Q. What about his mouth, was that taped as well. A. Yep, not round his head, just across his mouth (INDICATES). Yep. Q. At that point, was - HIS HONOUR Q. Sorry, the effect of the tape across the eyes was to stop him from seeing, presumably. A. Correct, yep. XN Q. The injuries that you spoke about seeing, were they injuries that Michael had before he arrived. A. Before I went down to my bedroom, actually, [the accused] had already swung two hits at him before I went down to the room. 122 B’s first reference was to Mr Purse’s “hands” being taped. However, she went on to describe his wrists being taped with his fists closed “like he was handcuffed”. This is inconsistent with A’s evidence of seeing the hands taped together. According to B, A and D had disappeared into D’s room before Mr Purse was taped.112 This is also inconsistent with A’s evidence that she saw Mr Purse’s hands being taped together before she and D went to his bedroom. 123 Upon seeing the tape on Mr Purse, B returned to her room. The following exchange occurred during her evidence in chief.113 Q. What happens from there. A. I then call [the accused] up to the bedroom and ask him what the fuck was going on, same thing as [C] and they didn’t really have much to say to me, apart from that they’ll handle it and they’ll sort it out. Q. Did you go back out to the lounge room at any point. A. Yep, because they were supposed to take him out into the middle of nowhere, as discussed, and let him walk it off because I said ‘What the fuck is going on here? I don’t want any - what the fuck, this is where I have to live and like we don’t need this shit’ and that was the plan and [C’s] gone out to get the fucking car. Q. So that discussion about the plan to leave him in the middle of nowhere - A. Happened in my room. 112 T277. 113 T278-279. -- 41 of 121 -- [2024] SASC 127 Nicholson AJ 40 Q. And who was part of that discussion. A. [C], [the accused] and me. Q. And while you were having that discussion, where was Michael. A. In the lounge. Q. And is there - A. On the floor. Q. Taped up. A. Yep. Q. And was the lady and [D] still in [D’s] bedroom. A. Yes. Q. You talk about [C] going out to the car. A. Yes. Q. What were you doing while [C] went out to the car. A. Tearing my hair out in my bedroom and keeping an eye on [the accused]. Q. When you say keeping an eye on [the accused], where was he. A. In the lounge room. Q. So you could see into the lounge room from where you were. A. Yep. 124 B (and C) occupied bedroom 2 as shown on the Kilburn unit plan in evidence.114 Part of the combined loungeroom and kitchen area can be seen from bedroom 2. B described what she then saw. After C had gone out to his car, the accused “tried to take things into his own hands and he failed miserably”. He tried to put Mr Purse in a headlock; he tried to manhandle him; he tried to strangle Mr Purse around his neck with a pair of white headphones, but again failed miserably because of Mr Purse’s resistance.115 B later clarified that she was referring to in-ear headphones joined by a cord and that the white sheath on the cord split, “the whole way up the middle [cord] of the whole headphones”, during the strangulation attempt.116 125 In this respect, I note that the accused is of relatively short stature, being approximately 155 centimetres (5’1”) tall and weighing 55 kilograms. 114 Exhibit P10. 115 T279-280. 116 T329-330. -- 42 of 121 -- [2024] SASC 127 Nicholson AJ 41 This estimation117 accords with my observation of the accused in court. Mr Purse was considerably taller, 185 to 188 centimetres (6’1” to 6’2”) with a slim build.118 Notwithstanding that Mr Purse’s wrists and/or hands may have been bound, this difference in size lends plausibility to B’s answer to the question “did you observe something happen that makes you say it failed”.119 That [Mr Purse] was throwing him around like a bag of chips and I don’t know if that was fight or flight or what it was, but yep. B also referred to Mr Purse appearing to have the strength of “10 men”. 126 Just after the two punches and before the headphone strangulation attempt,120 D came out of his bedroom to go to the toilet and jumped on Mr Purse’s chest “hard” while he was lying on the loungeroom floor. It “would have rocked him”. D called Mr Purse a “fucking dog” and went back into his room.121 During cross- examination, B agreed that D jumped on Mr Purse with both feet and had not been asked by the accused to do so.122 Tab 15 of exhibit P2 comprises four photographs of D taken on 4 April 2019. He appears at that time to have been of solid build with an estimated height of 180 centimetres and weight of 85 kilograms. 127 B next described what she saw of a knife wounding incident. It is important evidence in chief and, notwithstanding its length, I set it out in full.123 Q. Up until the point of the headphones, you’ve told us about the punches at the very start. Were there any other blows that you saw inflicted upon Michael in that time period. A. There was the blood on the floor which [the accused] had ran out to the car and then when he’s come back, I didn’t see him insert the knife into Michael Purse but I did see him drop the knife with blood on it. Q. And whereabouts was he when you saw him drop the knife. A. Near the L-shaped lounge, near the ‘L’ on the diagram. Q. And how close was he to Mr Purse at that point. A. In his bubble, right in his bubble. Closer than you two. Q. So less than half a metre. A. Yep. Q. And the knife, what type of knife was it. 117 T58 (Mr Horder), hearsay not objected to nor challenged. 118 T410-411. 119 T280. 120 T286. 121 T286-287. 122 T314-315. 123 T281-284. -- 43 of 121 -- [2024] SASC 127 Nicholson AJ 42 A. A wooden handled knife. I don’t know my knives. Q. Was it a kitchen knife or a different type of knife. A. No, a different knife. Q. When Michael dropped the knife, where did it land. A. On the floor, on the tiles. Q. And did you - A. Sort of near the fridge. Q. You mentioned blood. A. Yep. Q. Where was the blood. A. Everywhere because it was a massive struggle. Q. And did that struggle continue after you’d seen the knife being dropped. A. Yes. Q. Did you see who was bleeding. A. Yeah, Michael. Q. Was [the accused] bleeding at all. A. No. Q. Did you see where Michael was bleeding from, what part of his body. A. Can’t remember. Q. Did you see where the knife came from. A. No, but, as I said, [the accused] went only out to the car really quickly and come back. He didn’t have the knife beforehand, so what else did he go out to the car for. OBJECTION: [DEFENCE COUNSEL] OBJECTS HIS HONOUR: I note the objection, [defence counsel], and, yes, I will disentangle inference from observation. [DEFENCE COUNSEL]: Thank you, your Honour. HIS HONOUR Q. [B]. A. Yes. -- 44 of 121 -- [2024] SASC 127 Nicholson AJ 43 Q. Do you have a recollection of how long the blade of the knife was, how big the knife was. A. Less than - less than the - no bigger than the palm of my hand (INDICATES). Q. Could you show with your fingers apart - A. Like that (INDICATES). Q. So that’s just the blade not the handle; is that right. A. Yeah. HIS HONOUR: That was about what, three inches, four inches? [PROSECUTOR]: Four inches. HIS HONOUR: [Defence counsel]? [DEFENCE COUNSEL]: Three to four inches. HIS HONOUR Q. Secondly, you said that there was blood everywhere. A. Yeah, there was splattered blood. Q. Can you give more detail about what you observed, where the blood was, how much blood was around and where it was. A. Near the fridge, on the coffee table, on the lounge, on the carpet. There was quite a struggle so everything was happening rather quickly. XN Q. Did Michael’s clothing have blood on it. A. Yes. Q. Was there a particular part of his clothing that had more blood than others. A. Near his stomach. Q. Was Michael still bleeding at the time the headlock was imposed. Was that before or after you saw the knife. A. So the headlock from [the accused] was right at the beginning. The headlock from [C] was after the knife. Q. We’ll come to the headlock from [C] in a moment. A. Yeah. So there was no other headlock between [the accused] and Michael Purse in between that, no. -- 45 of 121 -- [2024] SASC 127 Nicholson AJ 44 Q. So I just want to make sure I’m understanding correctly. We’ve got the headlock from [the accused], then you see the knife, and then the strangling with the headphone cords. A. Yeah. [the accused’s] still trying to, like, bear hug him and get him to settle because he was starting to wail and make a terrible sound at this point. Q. I just want to make sure we’ve got the sequence right. The first bit of violence I think you’ve described is the punching of Michael by [the accused]. A. Yeah. Q. Then, correct me if I’m wrong, the next bit you’ve described is the headlock by [the accused]. A. Yep. Q. Then you see the knife. A. Yep. Q. And then you see the headphone cords; is that right. A. Yep. Q. Now, you talked about Michael making a noise. Tell us about that. A. A wailing, like he was in pain. Q. Was that a loud noise or a soft noise. A. Pretty loud. Loud enough for me to run out and go get [C]. Q. At what point did that noise start to be made. So was it before you saw the knife or after you saw the knife. A. After. Q. Was it before the headphones or after the headphones. A. After. Q. At what point did you run out to go get [C]. A. After I saw the blood. Q. And so after you saw the knife. A. Yep. 128 The more salient features of this evidence are: B did not see the accused insert the knife;124 she did see him drop the knife with blood on it; blood was everywhere 124 During cross-examination, B said that she saw “from the outwards motion” when the accused dropped the knife, T336 (discussed later). -- 46 of 121 -- [2024] SASC 127 Nicholson AJ 45 because it was a massive struggle; the struggle continued after she had seen the knife dropped; Mr Purse was bleeding, the accused was not; B could not remember from which part of Mr Purse’s body he was bleeding; B did not see where the knife came from but before the stabbing incident, the accused went to the car “really quickly” before returning and she did not see him with a knife when he left; Mr Purse’s clothing had blood on it “near his stomach”; Mr Purse started to wail after the knife incident and after the headphones incident; and after B saw the knife and the blood she ran out to get C. 129 In this passage, B gives a confusing account of when, in relation to the knife incident, the headphones incident occurred. However, on my reading of B’s evidence, as a whole, I am satisfied that she is to be understood as saying that the headphones incident occurred before the knife incident. This is consistent with other evidence from B, as well as that of the accused, that C came in straight after the knife incident and, according to B, the accused with C continued to assault the bleeding and wailing Mr Purse, with no mention of the attempted strangulation with the headphones. 130 When B came back in, followed by C, she saw a lot of wrestling and struggling. C put Mr Purse in a headlock and dropped him to the ground while the accused grabbed him by the legs. C said, “Michael, shut the fuck up and we’ll stop hurting you”.125 The accused and C then “laid into him … with their fists and their feet”.126 131 C then told B “to turn the fuck around”. She did so for no longer than 30 seconds. B did not see what happened during that 30 second period and her evidence was unclear as to which of the two men was holding Mr Purse’s legs and which the head and shoulders when she turned back to look. B described what she saw when she turned back.127 A. That – I could only see from where I was sitting on – because I’ve then walked from the door and sat on my bed and where I could see from my bed, all I could see was Michael’s feet lifelessly – or moving like that (DEMONSTRATES). Q. Are you describing twitching back and forth. A. Yeah of his feet, yeah. 132 About five minutes after the feet twitching episode, by which time Mr Purse was no longer moving, the accused and C rolled Mr Purse in a green floral carpet.128 … So, like, I didn’t know if he was unconscious or what. So, like, I still thought they were taking him to the middle of nowhere for then to walk stuff off. I didn’t really know what was going on. 125 T285, 337. 126 T285. 127 T286. 128 T287. -- 47 of 121 -- [2024] SASC 127 Nicholson AJ 46 133 After being rolled in the carpet, the accused and C took Mr Purse out of the Kilburn unit. Prosecuting counsel asked, “can you describe how they carried him”. In another of her acerbic responses given to both counsel,129 B said.130 A. As well as you can carry a person in a wound-up rug. I’m not understanding what you’re asking me. Q. Can you describe how they were positioned - A. Well, it didn’t flat-pack - it didn’t flat-pack like a sheet, did it? No. With great difficulty. Is that what you’re asking me? As I have earlier indicated, B gave the appearance of believing in her concise account of what she thought was a relatively straightforward violent assault. She did not accept the need for, and was frustrated at, the insistent and repetitive questioning from both counsel about what she appeared to see as unnecessary detail. 134 B then saw the accused and C put Mr Purse in the boot of C’s car and drive away with the accused in the front passenger seat. B had been told by C to “clean up the joint … the blood, the mess from the struggle, all the furniture that was knocked – knocked about”.131 135 The accused and C were gone for “quite a few hours” before they returned “together”132 and came into the Kilburn unit. B said this during examination in chief.133 Q. Does [C] or [the accused] return at any point to the unit after that. A. Yeah. Q. Do they return together or separate. A. Together. Q. How long were they gone for. A. Quite a few hours. Q. When they returned, did they both come inside. Did they come into the unit. A. Yeah. Q. Was there any discussion at that point between the three of you. 129 And to me – I was told that one of my less felicitous questions was “ridiculous”; T294. 130 T288. 131 T289. 132 T289. 133 T289-290. -- 48 of 121 -- [2024] SASC 127 Nicholson AJ 47 A. Yeah. They told me that they had been bogged and they had to get towed by a stranger. Q. And who said that. A. And they come back with Michael Purse in the car. Q. We’ll come to that in a moment. Who said that they got bogged. Who was the one that said those words. A. [C]. Q. Did he say that in the presence of [the accused]. A. Yep. Q. And did [the accused] say anything when [C] said that. A. No. Q. You say they came back with Purse in the car. How do you know that. A. Because I could see from my window, and because he told me. Q. Whose ‘he’. A. [C]. Q. And when he told you that, was [the accused] present. A. Yes. Q. And did [the accused] say anything when he told you that. A. No. Just that he had to get the car back that he had borrowed. The evidence of the conversation with C is hearsay as to its truth. However, as the prosecution would submit, the accused was present and had the opportunity to but did not deny the truth of what C said to B; being evidence of an implied admission. According to B, the accused stayed about 20 minutes before leaving to return the green Mazda to his friend. 136 The prosecutor’s question “do they return together or separate”134 was ambiguous and, as a result, so was B’s initial answer “together”. Did she see the two men arrive in the original Daewoo together or only enter the Kilburn unit together? As noted in the context of A’s evidence, the latter would be consistent with the defence case. However, B said that she “could see from [her] window”.135 C and B occupied the bedroom marked 2 on exhibit P10. From an examination of 134 T289. 135 T290. -- 49 of 121 -- [2024] SASC 127 Nicholson AJ 48 exhibits P10 and P11, it can be seen that the window of bedroom 2 overlooked the adjacent carpark from which the Kilburn unit could be accessed by a walkway. 137 Further, B’s evidence of the conversation she had with C in the presence of the accused, referred to earlier, supports the inference that, on her account, the two men not only left in the green Daewoo together but also returned in the green Daewoo together, both having the knowledge that Mr Purse’s body still was in its boot. In this latter respect, there is also the evidence of both A and B concerning the overpowering smell in the car later on that day. 138 Over the next couple of days, B and the accused exchanged a number of text messages which the prosecution relies on as supporting B’s account of the accused’s involvement in the death of Mr Purse. However, the defence maintains that this text exchange is consistent with the defence case. I will return to the text messages and the parties’ respective contentions below. 139 The defence has criticised B and her evidence in a number of respects to all of which I have had regard.136 I record below the potentially more significant criticisms. (i) I accept that B’s admitted very heavy, daily use of methylamphetamine must have had an effect on her perception of events at the time and her capacity to accurately recall those events at later times, including when giving evidence in the trial. As with the evidence of A and the accused, this is a matter relevant to reliability rather than truthfulness, and one that is more relevant to routine details, as compared with events of a more striking and understandably shocking nature. (ii) B said that the accused, Mr Purse and A, on arrival at the Kilburn unit, entered in a different order than that stated by A. This is a reliability issue with respect to A and B, but of minor significance. (iii) Whilst B said that from her room she heard yelling or raised voices early on when Mr Purse and A were in the loungeroom, A did not give evidence of hearing yelling. I make the same comment as above in respect of (ii). (iv) B’s evidence of the accused coming to her room and asking for “tape” was inconsistent with the version of this incident given by A. Further, B gave different accounts in her evidence of precisely how the accused obtained grey gaffer tape. The issue here, as with A’s evidence on this topic, is truthfulness. If A and B have honestly recalled an incident concerning the taping of Mr Purse’s hands, and that it specifically involved the accused, it would be substantially probative of the accused having initiated and continued with the 136 With respect, the defence written closing address generally was in the nature of an extended point form summary of the evidence of each witness with criticisms or expressions of disbelief inserted throughout; almost a stream of consciousness. The overarching theme was that the accused should be believed, and A’s and B’s evidence rejected. -- 50 of 121 -- [2024] SASC 127 Nicholson AJ 49 violence. If so, their reliability in terms of detail would be of little consequence. I will come back to this issue. (v) The evidence of B that she saw Mr Purse’s hands bound up but didn’t see the tape being applied was inconsistent with the evidence of A to the effect that B was present when the taping occurred. However, this is a matter about which B may have given conflicting evidence during cross-examination. Her evidence in chief (as earlier set out) was very clear to the effect that she did not see the tape applied.137 In cross-examination, she said this:138 Q. When the tape went out, did you see who grabbed the tape and who was using it. A. [The accused]. Q. Are you sure about that. A. Yep. Q. Not a minor detail that could be lost in your memory as a result of drugs - A. Nuh. Q. - and the passage of time. I think you described his arms being bound as you have shown before and you said tape across his eyes and his mouth; is that right. A. Correct. Q. I just want to ask you about this wailing sound that you’ve made mention about at some stage during the course of what was happening to Michael Purse. He still had the tape over his mouth at that time that you observed when he was making that sound, didn’t he. A. Yep. Q. I want to put it to you that it was not [the accused] that put any tape over the eyes or the mouth or - A. It wasn’t anyone else. Q. Are you sure about that. A. Yep, I’m sure about that. Q. You couldn’t be mistaken about that at all. A. No. 137 T274-276. 138 T327. -- 51 of 121 -- [2024] SASC 127 Nicholson AJ 50 Q. And I’d be wrong to suggest to you that [the accused] had actually left the premises by that time, hadn’t he. A. That would be very wrong. I understood this passage of evidence to reflect B’s confident belief or inference she had drawn about who did the taping, based on the accused having demanded and received the tape, rather than a statement of what she saw in contradiction to her evidence in chief. B also thought that Mr Purse’s feet had been taped but she did not actually see this (nor did A). The basis of this latter thought was not explored. Further, B said that tape was placed across Mr Purse’s eyes and mouth (not around his head) but A did not mention this. The accused denied that any taping occurred and the defence contends that, if it did, it would put in doubt the evidence by both women of Mr Purse wailing. (vi) The defence also contended that B was inconsistent within her evidence and with A’s evidence as to when, in the order of events and as to the context in which, the accused was said to have initiated the violence with two punches to Mr Purse. B was taken through her account a number of times in evidence in chief and cross-examination. There was a level of inconsistency as to order of events generally. At one stage, the prosecutor acknowledged this.139 In my view, this came about largely as a result of repeated questioning, B’s propensity to answer quickly without always clearly understanding the nature of the clarification the questioner was seeking and B’s frustration at being quizzed on what she saw as detail peripheral to the events she said she had observed. In my view, some lack of consistency or clarity as to order of events is understandable. The fact of events as notable as those alleged having occurred is far more likely to be recalled years later than is the order of the events. (vii) The defence contended that B’s evidence of the accused taking things into his own hands and trying to put Mr Purse in a headlock is “an unbelievable recent invention” but provided no submission or reference to evidence in support of this contention. (viii) The defence also contended that B’s evidence concerning the attempt at strangulation with headphones was implausible; it “beggars belief”, on the basis that no-one else mentioned this item, which appeared out of nowhere, where it came from or where it ended up. (ix) The defence strongly disputed B’s evidence concerning the introduction of a knife by the accused. I set out the defence written submission as to the crux of B’s evidence concerning the introduction of a knife.140 139 T284. 140 Defence written closing address at [18] under the heading “G (TP259)”. -- 52 of 121 -- [2024] SASC 127 Nicholson AJ 51 At TP281, [B] says she saw blood. But then volunteers the fact that [the accused] had left the unit and gone to his car and then comes back in. This it is suggested is not true. [B] did not see [the accused] insert the knife into [Mr Purse] at anytime or where exactly it came into contact with [Mr Purse’s] body. (TP281) [B] saw [the accused] drop the knife with blood on it and it had a wooden handle. There is no evidence as to who collected the knife or where it went even though [B] is the person tasked with the responsibility of cleaning the unit. (TP281) [B] does say at TP281 line 22 ‘when Michael dropped the knife’. This may be a slip by [B] but it may have been her perception at the time when she saw [the accused] with the knife and now her perception is clearer and it was actually [Mr Purse] that had the knife. What [B] says is that blood was everywhere as it was a massive ‘struggle’ indicating that both [the accused] and [Mr Purse] were in a massive scuffle or fight. (TP281) This massive struggle continued after [B] saw the knife drop. (TP281) I agree with this summary but for the submission that B at one point said, “when Michael dropped the knife” and that this may have been her true perception. It was in fact the prosecutor who made this slip141 and B’s answer was in response to the substance of the question “where did [the knife] land”. It was not an acceptance, sub silentio, that she saw Mr Purse hold the knife. Q. When Michael dropped the knife, where did it land. A. On the floor, on the tiles. Q. And did you - A. Sort of near the fridge. I have set out elsewhere the more extensive passages of B’s evidence which these defence submissions summarise. (x) The defence contended that the evidence concerning the location and seriousness of Mr Purse’s knife wound is insufficient to establish this wound as being the cause of death. As discussed later in these reasons, I accept that, given the lack of post-mortem expert pathological evidence concerning the knife wound and cause(s) of death generally and any direct visual evidence as to the severity of the knife wound (apart from B’s evidence indicative of heavy bleeding) it cannot be accepted beyond reasonable doubt that the knife wound was a substantial cause of death. (xi) The defence objected to the evidence of B that when C came into the Kilburn unit (after the knife wounding) he said to Mr Purse, “shut the fuck up and we’ll stop hurting you”. The defence, in its written closing address, submitted “that such a statement is made by a co-accused and as such certain directions must flow”. No submission as to the nature of these “certain directions” was made. Nevertheless, if C said this to Mr Purse, it was as part of the res gestae in his capacity, on the prosecution case, as a co-offender and not whilst giving evidence as a co-accused which status did not come about 141 T281. -- 53 of 121 -- [2024] SASC 127 Nicholson AJ 52 until very much later. As such, a necessary direction based on status as a co- accused giving evidence does not spring to mind. However, the factual implication that “they” believed they were hurting Mr Purse at the time is hearsay evidence by B. In any event, the prosecution does not rely on the statement for this purpose, rather, for the inference as to C’s state of mind, based on his words and conduct, that Mr Purse’s “wailing” in the early hours of the morning with other unit occupants in close proximity, was of concern and had to be stopped. As such, I do not need to consider admissibility as to the truth of the implied statement based on the res gestae or any other exception to the hearsay rule. (xii) B’s evidence that, after the knife wound, the accused (with C) “laid into [Mr Purse] … with their fists and their feet”142 is challenged as being false on the basis that the accused was wearing thongs or slides and it would be “impossible” for him to kick Mr Purse. It is challenged on the further basis that the arrest photos of the accused disclose no injury, bruising or marks to his hands or feet. The difficulty with the second submission is that the accused was arrested and photos taken on 3 March 2019,143 some 24 days or so after the Kilburn unit incident. The non-headshot photo shows the accused wearing socks and his feet are not on display; and the photo shows one hand clasped over the other rendering that hand not visible. The problem with the first submission is that the only direct evidence of the accused wearing thongs or slides at the Kilburn unit is that of the accused himself.144 The photograph on page 50 of exhibit P3 shows the accused having decamped in bare feet after the Flinders Park car accident at about 9:41 am on 7 February 2019. The accused said he “believed” that he had left his thongs or slides in the vehicle. Furthermore, during cross-examination but in answer to questions from the Bench, B said that both men were wearing shoes during the assault at the Kilburn unit. C was wearing “his blue ASICS” but she could not remember the shoes the accused was wearing.145 The next question from defence counsel is curious. In the transcript, the reporter has omitted to note that the cross-examination had resumed and that this question was asked by defence counsel.146 Q. But they weren’t boots at all, were they, they were running shoes. A. No, I cannot remember what shoes [the accused] was wearing at all, sorry. The evidence is insufficient to enable a conclusive finding as to the footwear, if any, worn by the accused in the early hours of the morning. In any event, it is not “impossible” to kick someone with bare feet or while wearing thongs, 142 T285. 143 Exhibit P2, pages 64-67. 144 T455-456. 145 T339. 146 T339. -- 54 of 121 -- [2024] SASC 127 Nicholson AJ 53 although the type of footwear can be relevant to the questions of causation and the specific intent of a person at the time of doing the kicking. (xiii) The defence contended that B’s evidence concerning where the accused and C were positioned when she was instructed to “turn the fuck around”, for the 30 second incident, “does not make any sense at all”. I disagree. B’s description is a little muddled but the gist of it is clear enough. Her description during her evidence in chief of what took place immediately after the accused and C had “laid into” Mr Purse was as follows.147 Q. What happens next. A. I’m standing by the door, by my bedroom door, which is very close to [D]’s bedroom door, and [C] tells me to turn the fuck around. Q. And do you do that. A. Yeah, briefly but not for very long because I’m panicking. Q. At the time [C] says to you to turn the fuck around, what position is [C] in. What’s he doing at that point in time. A. He stops hitting Michael to look at me to tell me to turn the fuck around. Then I - when I did briefly turn around, from his head being up this end near the fridge (INDICATES) by the time - the next time I return around, his feet are by the fridge and his head’s is up near the window. Q. And where is [the accused] at that point. A. In the lounge room. Q. Is he near Michael. A. Yep. So, he was up near his head - no, he was up near his feet, and then when I turned back around, he then would have been up near his head. Q. And where was [C]. A. By his feet in the hallway. Q. When you turned away before turning back and looking again - A. It was noisy. Q. And how long were you looking away for. A. 30 seconds if not, yeah, no longer really. Q. And did the noise stop at some point. A. Yeah, it died right down. 147 T285-287. -- 55 of 121 -- [2024] SASC 127 Nicholson AJ 54 Q. And what did you observe when you turned back. A. That - I could only see from where I was sitting on - because I’ve then walked from the door and sat on my bed and where I could see from my bed, all I could see was Michael’s feet lifelessly - or moving like that (DEMONSTRATES). Q. Are you describing twitching back and forth. A. Yeah of his feet, yeah. . . . . Q. Now, you talk about seeing Michael on the ground twitching. What happens after that. A. Michael was then rolled up into the carpet. Q. Which carpet is that. A. The green floral carpet with lots of dog hair on it from [C]’s parents. Q. You say ‘carpet’, is that the rug you drew on the plan. A. Yeah. Q. Is it the same rug we’re talking about - A. Yeah. Q. - the one that was on the ground. Who rolls him up in the carpet. A. [C] and [the accused]. Q. At that stage was he moving or making any noises. A. No. His feet were no longer moving at that stage. Q. How long after you saw the twitching of the feet to him being rolled up in the carpet. A. Not very long. About five minutes or so. The only aspect of this incident taken up in cross-examination was the immediate aftermath.148 Q. Yesterday in your evidence when you observed Michael on the floor, I think at one stage you came to the view that he may be unconscious, is that right. A. When? Q. This is before he’s rolled up in the carpet. 148 T349-350. -- 56 of 121 -- [2024] SASC 127 Nicholson AJ 55 A. Yeah. Q. But at that stage you still saw his legs moving. A. His feet. Q. Indeed, again, you’d agree with me, would you, that when he was rolled up in the carpet and they were taking him, his feet were moving as well at that time. A. No. Q. They weren’t. A. No, they had stopped moving. Q. Are you sure. A. Yeah, I’m sure about that. Q. How far away were you when you observed them taking - A. No further from you to me right now. Q. You didn’t tell us this, but were the lights on in the lounge room at all times. A. Kitchen light was on, lounge room light wasn’t on, no. Q. And it was dark outside at this time. A. Not heaps dark. Q. Was the sun - A. Because this would have been 4 o’clock in the morning, wouldn’t it? Q. Can I just ask you this: can you be sure that he still wasn’t unconscious at the time that he was rolled up in the - A. All I saw was his feet moving lifelessly like this (DEMONSTRATES) and then they come to a complete stop when he was rolled up in the carpet. That’s all I have to say that. HIS HONOUR: Witness was indicating with both hands, rocking her hands up and down with the wrist movement at that time. XXN Q. I want to take you now to the clean up, [C] instructed you to clean up the unit, didn’t he. (xiv) The defence criticised B for being confusing (and therefore generally unreliable) in her evidence as to when, in the sequence of events, D came out of his room and jumped on Mr Purse’s chest. I accept that B’s evidence as to the timing of this incident lacked clarity. However, she stated that the incident occurred “before the knife, before the headphones when [the -- 57 of 121 -- [2024] SASC 127 Nicholson AJ 56 accused] could have hit him twice, just after that and he came out to get a drink …”.149 I understood B, in this passage, to be saying that D came out just after the accused had hit Mr Purse twice which was the very first act of violence. A also gave evidence concerning D leaving the room which indirectly lends support to B’s account (discussed later).150 (xv) The defence contended that B lied in her evidence concerning a text she sent to D at 4:22 am on 7 February 2019.151 … you definitely need [to] keep her in there and occupied okay. B’s evidence in chief was that she had written this text (and others in the sequence) but could not remember what it was about.152 The defence contended that B lied to downplay her involvement in directing D to keep A occupied in his bedroom because B was cleaning up the loungeroom at the time. It is helpful to consider the whole context of this evidence by B. It was part of a number of questions during examination in chief concerning the series of text exchanges between the device shared by B and C (“the B/C device”) and D’s phone commencing at 4:06 am on 7 February 2019. It is not necessary to set out here in full this lengthy passage of evidence.153 However, on having heard and upon reviewing that evidence, I have no sense of B lying or dissembling about what might have been her thinking behind the texts. She readily acknowledged the texts she sent and that the earlier ones in the sequence were sent by C. She said that she sent her messages “because [C] told me to”. The intention in sending the texts to D is self- evident from their content, that is, the need for D to keep A occupied in his room. In any event, there would be no need for B to “down play” her role in cleaning up the loungeroom, which she readily admitted having done. (xvi) The defence challenged B’s evidence concerning the “wiping” of Mr Purse’s phone. The challenge was not to the proposition that she was handed the phone or that, as instructed, she “wiped” it or, as she explained, restored it to its factory settings but as to who gave her the phone and told her to do so. I accept that B was not sure in her own mind as to who handed her the phone. I accept the submission that this incident cannot be used to infer anything about the accused’s state of mind. (xvii) I accept the defence submission that both A and B were inconsistent from time to time as to who was present in the loungeroom at certain times and where they were standing or sitting and as to specific choreography of the various physical interactions. To a significant degree this is to be expected for reasons explained elsewhere. I am not persuaded that this alone should 149 T286. 150 T167. 151 Exhibit P7, entry 356. 152 At T297. 153 T295-299. -- 58 of 121 -- [2024] SASC 127 Nicholson AJ 57 cause doubt as to their truthfulness and reliability concerning the essential components of the prosecution case. (xviii) The defence put the following written submission.154 [B] now says for the first time in XXMN at TP330 that [the accused] was standing on top of the lounge for a lot of the time and trying to strangle [Mr Purse]. This it is submitted is just made up because [B] knows that [Mr Purse] is taller than [the accused] and in order for her to justify the suggestion of strangling [the accused] would have to be in an elevated position,. This simply did not happen and the Court is asked to make a finding that this is just made up by [B]. [B] also agrees she never told the police that before at any time. (TP331) B’s evidence in cross-examination was as follows.155 Q. And the headlock - Michael Purse was a lot taller than [the accused], as you observed. A. Yeah. [The accused] was standing on like - on top of the lounge for a lot of this. Q. Oh, was he. A. And was still struggling. Yeah. Q. All right. So he was standing on top of the lounge; is that right. A. Yep. Sorry, did he say something? Did he say something then?156 Q. You see, I just want to ask you - A. I think I heard him say something. Q. You’ve made a number of statements to the police. Did you tell the police at any time, in making those statements or leading up to today’s evidence, that [the accused] had been standing on the lounge at all. A. No. Again, I assumed that that was a minor detail. Q. So, are you trying to imply here that in order for [the accused] to make the headlock around Michael Purse, he got up on the lounge and then reached over Michael and did a headlock of some sort, and I’m referring to using my right arm but I’ll come to the arms in a moment. Is that what you’re trying to - A. I can’t remember what arm he used. I can remember the headlock that was applied. I can remember the strangling of the headphones. As I said, this was five years ago, and I can remember the major details of it. This should have probably happened way before now, not five years later. 154 Defence written closing address at [64] under the heading “G (TP259)”. 155 T330-331. 156 This was a reference by B to having heard the accused in the dock mumbling something. -- 59 of 121 -- [2024] SASC 127 Nicholson AJ 58 I accept that B first mentioned the accused standing on a couch during cross- examination and that she had not mentioned this in her police statement. However, it is a plausible notion, given how much taller Mr Purse was. It is the sort of detail that might not seem important enough to have been volunteered earlier. There is nothing intrinsically wrong or dubious about providing further detail on a topic when prompted in cross-examination. I do not accept the submission that this detail was “made up” in order to bolster B’s account of the accused attempting a headlock. (xix) The defence has asked the Court to reject B’s evidence that she saw, through her bedroom window, the accused leave the Kilburn unit and go to his car before she saw the knife. The defence contended that this was a lie designed by B to lay blame on the accused for the introduction of a knife. However, B at no stage said that she saw the accused with a knife prior to or at the time of Mr Purse suffering the knife wound. If she wanted to lie in this respect, why send the accused out of the Kilburn unit and to the car? The knife that caused the wound has not been located. Obtaining a knife in the adjacent kitchen area, easier to come by quickly upon any spontaneous decision by the accused to obtain a knife, would have been a more obvious lie to reach for. Indeed, if B were to have lied about the knife incident, why be so delicate about it? She simply could have said that she saw the accused with a knife. I do not accept that B has lied in saying that the accused ran out to his car. It is another question whether or not the inference that his purpose was to obtain a knife from the car is necessarily sustainable in the face of the accused’s evidence that it was Mr Purse who produced the knife. This is a point fundamental to the prosecution and the defence to which I will return. (xx) In various of the written submissions, the defence asserts “recent invention” by B when details not central to B’s account emerged in cross-examination for the first time. However, there is a difference, which I have taken into account, between recent invention in the sense of being made up at a later time and recent (but reliable) recollection. (xxi) The defence has made a number of criticisms concerning B’s evidence about the knife wound incident157 and the ensuing struggle between the wounded Mr Purse and the accused and C.158 I analyse the evidence concerning this incident in some detail later in these reasons, although I note here that the defence criticisms of B’s evidence on this subject are not persuasive. (xxii) It was put to B that in her police statement, dated 12 December 2019, she said “I think I met [A] twice” but in evidence said the only time they had met was at the Kilburn unit.159 As the prosecution submitted, the asserted prior inconsistent statement was not strictly proved. In any event, it is a 157 Defence written closing address at [67]-[68] under the heading “G (TP259)”. 158 Defence written closing address at [69]-[71] under the heading “G (TP259)”. 159 T310-311. -- 60 of 121 -- [2024] SASC 127 Nicholson AJ 59 trivial criticism; as B said, she gave her police statement “in 2019, five years ago, another minor detail”. There is no evidence of any relationship between A and B either prior to or after the Kilburn unit incident. (xxiii) B was cross-examined about her extensive criminal history. She has committed a significant number of offences. However, each, considered in isolation, was towards the low end of seriousness. B readily conceded a number of convictions for failure to comply with bail agreements and for possessing methylamphetamine or equipment to use. She acknowledged a past conviction for each of possessing ammunition without a licence and possessing a prohibited weapon. She could not remember but did not deny an offence in 2015, when a minor, of aggravated assault for which she received a suspended detention bond without conviction.160 At the time of trial, B was [redacted] charged with some 32 or so offences which, as at the time she gave evidence, were to be contested.161 The charges by and large relate to unlawful possession (drug) offences, minor theft (shoplifting type) offences and multiple alleged breaches of bail. These charges have the status of allegations only in respect of which B is presumed innocent. Nevertheless, they are consistent with her established pattern of routine minor offending involving dishonesty and consistent with the lifestyle B (together with her associates) appears to have followed given her substance abuse problem. I accept that B is prepared to behave dishonestly on a regular basis. I infer that this would include lying when in her interest to do so. However, and whilst this aspect of her character is a factor I have taken into account, I am not persuaded that she is the type of person who readily would lie in court about events as serious as those said to have occurred at the Kilburn unit. Indeed, she struck me as genuinely shocked about what she saw that night, which was so serious that she could not condone it, even if it meant that important members of her “tribe” would be implicated. Areas of consistency in the respective accounts of A and B 140 A and B provided eyewitness evidence on a number of topics that was sufficiently similar as to lend support to the veracity of each account. (i) Both A and B described the accused as instigating the violence by unprovoked punching of Mr Purse. (ii) Both gave accounts of tape being used and described the nature or type of tape used in similar terms.162 160 T354-356. 161 Exhibit 12A, agreed fact 48. 162 The availability of duct or gaffer tape in the Kilburn unit receives some support from agreed fact 35 in exhibit P1: “On 18 January 2019, [C] purchased a roll of silver duct tape from Bunnings”. It is common ground that C and D had undertaken renovations to the Kilburn unit shortly before February 2019. -- 61 of 121 -- [2024] SASC 127 Nicholson AJ 60 (iii) Both said that tape was called for or wanted by the accused. (iv) Both described the accused binding the hands or wrists of Mr Purse. A said she observed this. B’s evidence, as to the accused rather than someone else doing the binding, is circumstantial. However, the inference is readily drawn. A and B were not consistent as to the extent of the accused’s use of the tape; A referred only to him binding the hands whereas B referred to him binding the wrists and seeing tape on the eyes and mouth.163 I am not troubled by these differences. Recollection of detail will differ over time, both were heavy methylamphetamine users and A left the loungeroom early on to go with D. She may have left after only the wrists and/or hands had been bound. As to the precise extent of the binding of the wrists and/or hands and the timing of A leaving, she, B or both could be mistaken. It might have caused more concern if A had remembered more than B about the taping incident rather than less. Indeed, the existence of differences supports the absence of any collusion between the two women, although there has been no suggestion of this either during cross-examination or in the defence submissions. (v) Both women observed D leave his bedroom for a short time during the altercation in the loungeroom. B said it was soon after the initial punches by the accused. B described D stomping on Mr Purse with both feet while he was on the floor. A spoke of only three occasions when D left the room; one when he went out alone and two later ones when she went with him. Her evidence of the earliest one is consistent with and provides circumstantial support for B’s evidence of the stomping incident. (vi) Both women gave similar evidence about hearing Mr Purse wailing loudly. (vii) Both women described there being a time when the accused and C were not in the Kilburn unit but later, during daylight hours, entering the Kilburn unit together as if returning from somewhere. (viii) Neither woman gave evidence of any man other than Mr Purse, the accused, C and D being in the Kilburn unit at any relevant time. (ix) Both A and B gave similar accounts of going out in C’s car later in the day and there being a strong, very distinctive odour in C’s car.164 Evidence of the Wild Horse Plains witnesses 141 Early in the daylight hours on the morning of 7 February 2019, C’s car with C driving became bogged in an area of unsealed road in Wild Horse Plains. According to Todd Baker, there were only two people in the car who sought his help. The one who first approached him “might have been a little bit shorter than 163 Whilst B also thought the feet may have been bound, she said she did not see this and there is no other evidence about the feet being bound. It is also inconsistent with B’s account of Mr Purse’s movements when trying to defend himself. 164 T170-171, 293. -- 62 of 121 -- [2024] SASC 127 Nicholson AJ 61 [him], so like around 175ish, slim build, had blondish or red hair and was wearing raggedy sort of clothes”.165 The man’s hair was “reasonably short” and he was “nervous and sweating”.166 The other person was a “fatter guy” with brown hair and was a bit taller than Mr Baker.167 He was, well, fat, I suppose. He had shorter hair and a rat’s tail. He was wearing raggedy sort of clothes and his guts sticking out the bottom of his shirt. 142 On 9 May 2020, some 14 months later, Mr Baker undertook two police photo pack identification procedures168 by which he purported to identify the “skinny man” and the “fat man”.169 The photo he selected for the “skinny man” was not of the accused. He selected the photo of a man placed adjacent to that of the accused. Mr Baker was successful in selecting the photo of C. 143 According to Mr Baker, the whole event took about 20 minutes.170 When he returned to the farm after towing the car out, he sent a text message to his wife about the incident at 7:43 am. On this basis, Mr Baker estimated that the two men first approached him at about 7:20 am. It was a sunny February morning. 144 During cross-examination, Mr Baker agreed that the smaller man may have had freckles on his face and pale skin, that he looked “similar to a kid that [he] had known, potentially, some time ago” and that he was wearing a blue or white singlet.171 145 During his evidence in chief, David Williams gave more detailed descriptions of the two men. As to the smaller man, he gave this evidence.172 Q. The person that was standing there, are you able to describe that person for us. A. Yep, they’re probably similar to my height, maybe a bit skinnier than me. From memory, they were just wearing some pants, I believe, a shirt. Q. You say about your height, how tall are you. A. About 170. HIS HONOUR Q. Sorry, what was that. A. About 170. 165 T377. 166 I accept that signs of perspiration may have resulted from unsuccessful efforts to free the car. 167 T379. 168 Exhibit P2, tab 7. Each contained eight head and upper neck photos. 169 T381-382. 170 T382-383. 171 T383-384. 172 T386-388. -- 63 of 121 -- [2024] SASC 127 Nicholson AJ 62 XN Q. Centimetres, I take it. A. Yep. Q. Skinnier than you. A. I believe so, yep. Q. What’s your rough weight. A. Back then probably a hundred-ish. Q. When you say skinnier than you, skinnier than you back then or skinnier than you now. A. Skinnier than me back then, I’ve lost a fair bit of weight since then. Q. So skinnier than - what was the weight, sorry. A. Would have been probably 100, 105, something like that. Q. The pants that they were wearing, are you able to describe those pants. A. They were just dark in colour, from memory. Q. Are you able to say whether they were long or short. A. Long, I believe. Q. You say ‘I believe’, why did you put that qualifier on it. A. It’s just a long time ago now. . . . . Q. You say it was a long time ago, what are you effectively meaning by all of that. A. Just from my memory, I guess. Q. Can I ask you this: are you sure about the length of the pants. A. Yes. Q. The shirt, can you describe the shirt. A. It’s just a dark coloured shirt. Q. Was it a button up shirt or a T-shirt or something else. A. Can’t remember. Q. The hair of this individual, did you make observations of that. A. Short. -- 64 of 121 -- [2024] SASC 127 Nicholson AJ 63 Q. The colour. A. Can’t remember. Q. I know you can’t tell us the actual colour but are you able to give some indication of whether it’s lighter or darker or something else. A. Darker, from memory. Q. What was the demeanour of that individual like. A. I guess confused. 146 As to the larger man, he gave this evidence.173 Q. Are you able to describe the second man. A. Yep, he was taller than me, much heavier than I was, kind of spaced out, I guess. Q. When you say ‘spaced out’, are you referring to his demeanour. A. Yeah. Q. You say he was taller, how much taller, if you can say. A. A fair bit, probably. A head, maybe more. Q. ‘Much heavier’, you mean much heavier than the hundred kilos you were back then. A. Yep. Q. Are you able to give us an indication of how much heavier. A. A lot. Q. Did you observe his hair. A. Yeah, he had longer hair than I. Q. The colour. A. Dark. Q. The style. A. I think he had a rat’s tail. Q. What clothing was that man wearing. A. He was wearing shorts and a singlet. 147 On 9 May 2020, Mr Williams undertook the same two police photo pack identification procedures as did Mr Baker. Mr Williams also selected a photo that 173 T389. -- 65 of 121 -- [2024] SASC 127 Nicholson AJ 64 was not that of the accused (although he did not select the same man as Mr Baker). He also selected the photo of C.174 Mr Williams agreed that he and Mr Baker were first approached for assistance at about 7:00 or 7:10 am and the sun was up. He gave this additional evidence concerning the description of the smaller man during cross-examination.175 Q. Could I ask you to cast your memory back a little bit, was that person, were they wearing a singlet, possibly. A. Potentially, maybe, I’m not sure. Q. You’re just not sure. A. Yep. Q. Did they appear to have freckles on their face that you observed or not. A. Potentially. Q. You got into the passenger side of the dual cab vehicle that Mr Baker was driving, correct. A. Yes. Q. And that person got in the back passenger side at the rear, correct. A. Yes. Q. When you arrived at where the vehicle was, that other person, I think you described as wearing shorts and a singlet, is that correct. A. Yes. Q. That person was sweating pretty badly, I think you observed at that time, is that right. A. Yes. It is common ground that C was the bigger man with the rats tail who was in the bogged car and whose photo both Mr Baker and Mr Williams selected. 148 The prosecution contended that aspects of the descriptions given of the second or smaller man were consistent with the appearance of the accused. (i) Mr Baker described “the skinny guy” as being “a little bit shorter than [himself], so like around 175ish, slim build, had blondish or red hair and was wearing raggedy sort of clothes”. He had “reasonably short” hair. 174 T390-391. 175 T392. -- 66 of 121 -- [2024] SASC 127 Nicholson AJ 65 (ii) Mr Williams described this male as around 170 centimetres tall and skinnier than himself. Mr Williams weighed about 100 kilograms at the time. The man had short hair and was wearing a dark coloured shirt. 149 Whilst there were these consistencies, they concerned commonly occurring features. Also, even though the man who was not C was smaller (in height and weight) than the witnesses and C, his height and weight, as estimated by the witnesses, would have the man being appreciably bigger than the accused. As the defence contended, the two farmers said they observed other features not consistent with the accused’s appearance. Mr Baker agreed in cross-examination that the man “may” have had freckles and that he was wearing a blue or white singlet.176 Mr Williams referred to long dark pants. However, to these descriptions he added the often telltale qualifier, when pressed as to how confident he was, “just from my memory, I guess”. 150 The two men were inconsistent in their respective descriptions of the smaller man but reasonably consistent in their descriptions of C. Of note, Mr Williams recalled the smaller man being “maybe” skinnier than his 100 kilograms or so but the bigger man, C, being “much”, that is, “a lot” heavier than Mr Williams. Evidence of the accused 151 I have already summarised the contrasting account of events at the Kilburn unit given by the accused. The prosecution has criticised his evidence in a large number of respects. I have not been persuaded as to the materiality of some of the criticisms. However, there are aspects of the accused’s evidence that have caused difficulty for me in accepting that the accused gave a truthful account of all that took place on 7 February 2019. 152 The prosecution has identified various inconsistencies within the accused’s evidence as to detail, order and timing of events and has identified various matters raised in cross-examination and not in evidence in chief. I take the same approach here as that taken with respect to the prosecution witnesses and for reasons similar to those already mentioned. Unless the identified failings relate directly to an important aspect of the accused’s account concerning what happened that night, I have been circumspect in placing weight on such matters when assessing reliability and credibility. 153 The prosecution submitted that the following account during the accused’s evidence in chief of the accused’s reaction to the knife wounding incident is inherently implausible.177 A. No. As soon as we went to the ground, I get up and then I seen the knife in him. 176 The defence in its written closing address referred to the singlet being “blue and white”. However, in his evidence, Todd Baker agreed to the proposition that it was “a blue or white one”. 177 T472-474. -- 67 of 121 -- [2024] SASC 127 Nicholson AJ 66 HIS HONOUR Q. And then what. A. I seen the knife was in his abdomen. Q. In his abdomen. A. Yes. XN Q. The knife was actually in his abdomen. A. Yes. . . . . Q. Did you actually physically see the knife sticking in his body at that time. A. Yes. Q. Did you put it there. A. No, I did not. Q. Did you see blood. A. Not at that time, no. Q. What was he doing at that time. A. He was moaning. Q. When you say ‘moaning’ - A. Just like - you could tell he was in pain, but not excruciating pain, no. . . . . Q. After you saw what had happened and the knife was in Mr Purse, what did you do. A. [C]’s come in. Q. Yes. A. [C]’s carrying on, ‘What the fuck’, you know. Q. No, we’ve you’ve got to be careful about this. We need to hear exactly what you’re saying. Just keep your voice up, please. So, [C]’s come in and what did he say. A. ‘What the fuck happened’. Q. Yes. A. I said ‘I’m done’. He’s like ‘Go, I’ll deal with this fuck head’. -- 68 of 121 -- [2024] SASC 127 Nicholson AJ 67 Q. So, you said you were done. A. Yes. Q. What was the reason for saying that. A. Like dealing with him. Like, having him here, you know. HIS HONOUR Q. Sorry, say that again. A. Like, having him in the unit waiting for [A] to finish. XN Q. So, you’re not going to wait for [A] to finish. A. Nah, I’m going. HIS HONOUR Q. Where is the knife at this stage. A. I think he’s pulled it out by then, because he’s up against the wall now, moaning. 154 I agree that the account of both the accused’s and C’s behaviour here lacks plausibility. It would make no sense for C immediately to volunteer responsibility and willingness to “deal with this fuck head”; he knew nothing of Mr Purse nor about what had happened, that is, how it came about that Mr Purse was lying on his lounge floor bleeding with, on the accused’s account Mr Purse holding a knife having just pulled it out of his abdomen, or the knife on the floor nearby. It would make no sense for the accused to say only “I’m done”, to leave C with the responsibility of sorting out a very serious, difficult (and messy) problem, and to offer no explanation. It would make no sense for C to allow, let alone encourage, the accused to immediately take off in those circumstances. 155 The prosecution contended that the accused lied about leaving the Kilburn unit to go to Michael’s. In this respect, the prosecution relies on the evidence of B and the objective evidence concerning the location of the accused’s phone. The accused said that he was playing with his phone while Mr Purse was smoking and trying out the methylamphetamine. However, the accused’s phone had been disconnected from the network as from 1:37 am, that is, had been turned off,178 had gone flat or was out of range of a network tower. The latter could not be so at this time, given the location of the accused at the Kilburn unit which plainly is within range of a network tower given the fact that the phone was located in the vicinity 178 I use the term “turned off” to refer to the physical action by someone to power down the phone such that another physical action is required for that phone to be powered on. I contrast the commonly occurring feature of the device “going to sleep” of its own motion without any human intervention but remaining powered on. -- 69 of 121 -- [2024] SASC 127 Nicholson AJ 68 of the Kilburn unit at 4:01 am and later, once it reconnected to the network.179 There is no evidence and no suggestion by the accused that the battery went flat and that during the period 1:37 am to 4:01 am the accused was recharging his phone. Whilst the accused said he had other phones, he did not say that he had been actively using any of them. 156 Further, the accused said that when he left and went to “Michael’s” he left the phone he was using behind. However, this phone reconnected to the network at 4:01 am; someone had to have turned the phone back on. The accused could not have done this from Michael’s. There is nothing to suggest that someone else at the Kilburn unit turned on the accused’s phone which, in any event, would have been most unlikely. The prosecution contended that, as at 4:01 am, that is a matter of minutes before C’s car left for Wild Horse Plains, the accused was still at the Kilburn unit. In the alternative, the phone went to Michael’s house with the accused such that he was able to turn it on and reconnect to the network at 4:01 am, in which case he would have had no need to “return” to the Kilburn unit in the daylight hours. The accused’s attempts to explain these anomalies180 made no sense and, according to the prosecution, should be rejected. I accept that submission. 157 The prosecution contended that the accused gave different and inconsistent accounts of his arriving with a firearm and that the notion itself was inherently implausible. The criticisms focus on minor details only. I do not find the essence of the accused’s account to be implausible and, particularly so, given that B also gave evidence concerning a previous request to mind “shorty” on the accused’s behalf and that the accused had telephoned with the same request before arriving on 7 February 2019. 158 The prosecution submitted that the reason given by the accused as to why Mr Purse attacked him is also implausible, putting a number of arguments in support of this contention. However, it is commonly understood that ingestion of methylamphetamine in significant quantities can cause impulsivity and aggressive behaviour. All of the protagonists, including Mr Purse, were heavy methylamphetamine users. The satisfaction of their own physical, and often financial, needs depended to a large degree on the quality of methylamphetamine they were able to obtain. I do not find it implausible that Mr Purse might have complained and responded aggressively, if in fact the accused had supplied him with methylamphetamine for purchase; of course, this issue does not arise if the prosecution account of what initially occurred on arrival at the Kilburn unit is correct. 159 I accept the prosecution contention that the fact that the accused believed Mr Purse to be a police informant could have contributed to antagonism towards 179 Exhibit P1, agreed fact 16.5 (table). 180 T625-627. -- 70 of 121 -- [2024] SASC 127 Nicholson AJ 69 Mr Purse by the accused.181 In this respect, the accused attempted to distance himself from his having any concern about associating with Mr Purse, even though a “dog”.182 I do not accept that the accused lacked such a concern. “Dogs” are notoriously regarded as disloyal, untrustworthy and at risk of retribution by those criminal elements with whom they associate. 160 The prosecution contended that the accused lied in his evidence to the effect that his only purpose in possessing firearms was to sell them.183 I agree that this is implausible: the possession of firearms for personal protection and to assist in enforcing drug debts is commonplace amongst those who operate within the notoriously dangerous business of illicit drug dealing. Further, the accused’s evidence here is inconsistent with his evidence that he used a firearm when robbing the Parlour.184 I accept the prosecution submission. 161 The prosecution contended that the accused exhibited a poor demeanour; at times he was argumentative, he refused to answer directly or at all questions on a couple of occasions, albeit regarding peripheral issues; and he was not frank and fulsome in his evidence. There is some force to this criticism. However, similar criticisms concerning demeanour can be levelled at the two main prosecution witnesses. I find that poor or good demeanour – how a witness appears or presents themselves – particularly given the stressful environment of a criminal trial and where the witness is not experienced in giving evidence can be an unreliable guide to truthfulness and reliability. With respect to all witnesses, I have had regard to but have treated demeanour, in this sense, with caution. 162 The prosecution has placed significant weight on the accused’s text message exchanges with B after the Kilburn unit incident as admissions that the accused was present and involved throughout the incident up to and including the trip to Wild Horse Plains, as explained in B’s evidence. To fully understand the respective contentions of the prosecution and defence on this topic, I need to set out the mobile phone traffic after the accused left the Kilburn unit in the daylight hours to return his friend’s Mazda car. 163 After the accused left the Kilburn unit and whilst driving home, he had a car accident at Flinders Park at about 9:37 am. According to the accused, he “ended up going to hospital after the incident, like, [he thought] the next day or something, to get [his] neck checked out” because it was still sore from the car accident.185 The accused’s phone was subsequently involved in the following communications. 181 T568-570. 182 A term well understood by the cognoscenti to refer to a police informer. 183 T507. 184 T519. 185 T492. -- 71 of 121 -- [2024] SASC 127 Nicholson AJ 70 (i) At 10:15 am on 7 February 2019, that is, some 35 minutes or so after the accused had run from the Flinders Park accident, the accused sent a text to the accused’s phone, “hey mate”.186 (ii) Between 10:23 am and 10:49 am, the accused and an unknown number exchanged a series of 12 text messages by which the accused explained to the unknown person that he had just crashed his “mates car”. The accused said that he thought these texts had been with his sister, “AS”.187 (iii) Thereafter, nothing came to or went from the accused’s phone until 9:01 pm that same day when A’s phone sent a text: “yo”; an apparent attempt to greet and open a line of communication. However, this text was not received by the accused’s phone until late the next day, 8 February 2019 at 4:10 pm.188 (iv) A’s phone also placed four calls to the accused during late 7 and 8 February 2019 which were not answered.189 (v) During the period 7 February at 10:19 pm until 8 February 2019 at 8:31 am, the B/C device attempted without success to contact the accused’s phone by voice message (10 times) and text (two times): “?” and “Oi mark!”. The two text messages were ultimately received on the accused’s phone at 4:10 pm on 8 February 2019.190 (vi) The accused made contact with the B/C device for the first time at 4:10 pm on 8 February, some 30 or more hours after having left the Kilburn unit, with a text: “bro just got out of hospital”. The prosecution put to the accused that, during the period that the B/C device was trying to contact the accused without success, his phone had been turned off. The accused said he “[could not] recall”. 164 After the accused resumed contact with the “bro just got out of hospital” text, a string of 59 or so communications and attempted communications took place between the accused and the B/C device in the 17 hours or so between 4:10 pm on 8 February and 9:10 pm on 9 February 2019.191 The following, more significant, text messages (in order) and phone contacts disclose that the relationship between the accused and B had soured to say the least. Unless otherwise indicated, the B/C texts were sent by B. The texts by the accused are shown in italics. (i) At 6:06 pm on 8 February 2019 – “where the fuck are you”. (ii) At 6:07 pm on 8 February 2019 – “call me”. 186 Exhibit P7, entry 366. 187 T494-494. 188 Exhibit P7, entries 379 and 403 and evidence of Marsh. 189 Exhibit P7, entries 384, 395, 398 and 402. 190 Exhibit P7, entries 380-383, 385-394, 397, 400, 401, 404-409, 412 and evidence of Marsh. 191 Exhibit P7, entries on pages 10-15 of tab 5. -- 72 of 121 -- [2024] SASC 127 Nicholson AJ 71 (iii) At 6:07 pm on 8 February 2019, a phone conversation lasting two minutes and 56 seconds took place. (iv) At 6:12 pm on 8 February 2019 – “Mark tee up some gear please even if we have too take you past too pick some up [C] already said too me he better have some fucking gear OK”. (v) At 6:12 pm on 8 February 2019 – “Yeah I’ll tear (sic) some up”. (vi) At 6:21 pm on 8 February 2019, a phone conversation lasting one minute and 53 seconds took place. (vii) At 7:59 pm on 8 February 2019 – “Hey is [C] ok”. (viii) At 8:25 pm on 8 February 2019 – “Have you sorted some gear?”. (ix) At 12:01 am on 9 February 2019, B sent what I refer to as “the angry text”.192 [The accused] I cannot fucking believe how you have carelessly single handedly have brought myself and 2 other people into your fucking bullshit, I’m going too tell you straight car accident or no car accident you have more than disrespected us I’m ashamed [redacted] honestly [the accused], you haven’t only put us in the deep end with something that didn’t concern us at all, but you have now cause fights and arguments between myself and the person I love under these tense stressful events, and honestly I cannot believe you have been so careless! Let me tell you right now our car, well its no good and we shouldn’t have too go without because you fucked up so you will need too organise cash too be able too buy us a run around car, oh and when I asked you hours ago if you organised gear, and you said call me made no effort too contact us well just goes too show after what you have done you still couldn’t go out of your way too make something happen no matter what it took! So before you find yourself in more trouble than what’s its worth with both of us I highly fucking suggest you find a lift, you get us some gear because let’s be honest its the least you could do after your inconsiderate act, I also don’t think its much too request of you after the shit storm you put us in, and honestly and no he’s not fucking okay how can he be?? So [the accused] if I was you make some fucking calls, get yourself some transport, and get some gear for the love of god before things get worse, (x) The next contacts were two unanswered phone calls to the accused’s phone at 11:45 am and 11:50 am on 9 February 2019, which I infer were attempts to follow up on the angry text. (xi) The accused attempted to resume contact at 3:12 pm on 9 February. In the 36 minutes between then and 3:48 pm on 9 February, the accused directed 19 attempted communications (comprising calls and texts) to the B/C device. The final text in this run, at 3:48 pm, was: I tried so hard to sort this out for you the most you could do is called me back I understand I fucked up but but it was beyond my control but I am trying to do the 192 Exhibit P7, entry 435. -- 73 of 121 -- [2024] SASC 127 Nicholson AJ 72 righty so please cut me some slack message me or call me when your home so I can come over … I am sorry for this headache 165 Both the accused and B were questioned about a number of these communications. I will start with B’s evidence. 166 B initially gave this evidence concerning the angry text.193 Q. After [the accused] leaves, when’s the next time you have any contact with him. A. When I send him the text message. Q. Tell me about that text message. A. Telling him about all the bullshit that he’s just dragged us into, and about him bringing us some gear. Q. When you say ‘gear’, do you mean drugs. A. Yes. Q. Why did you want drugs from him. Explain the logic behind that. A. Well, that was the deal when we sat on an actual gun instead of people, or whatever. The day beforehand, he gave us some drugs for sitting on the gun and he knew that we didn’t have anything and that’s normally the payment that we would get from it, and some drugs at that point would have been the least he could have done. 167 Later, still during evidence in chief, she gave this evidence.194 Q. If we go over to the [angry text]. A. Yep. Q. I appreciate it might seem obvious to you but I’m going to ask you about some of the details in there. A. Yep. Q. I’m going to be thorough. A. Yep, it’s nothing personal, I just think it’s dumb. Q. I’m sure you do, but we’re going to do it anyway. A. Yep. Q. You say that’s a message you sent. A. Yep. 193 T291. 194 T301-303. -- 74 of 121 -- [2024] SASC 127 Nicholson AJ 73 Q. [the angry text] A. That is me, correct. Me, yep. Q. You say you cannot believe how carelessly and single-handedly he’s brought yourself and two other people into his bullshit, what are you referring to in that message. A. The bullshit with this bloke in the carpet that ended up in our boot. Q. When you say ‘he’s put us in the deep end’, what do you mean by that. A. That he’s run off and left us to deal with this situation that had absolutely diddly squat to do with us. Q. You go on to say ‘Let me tell you right now our car, well, it’s no good’, can you tell us what that’s about. A. A car that can no longer be driven around because it has the smell of a dead person in it. Q. Then you go on and you say ‘Well, just goes to show after what you have done, you still couldn’t go out’, the ‘what you have done’ what are you referring to there. A. Where are we reading? Where are you? Q. So about halfway in the middle of that message, on the left-hand side it starts ‘Contact us, it will just go to show after what you have done’, do you see that - HIS HONOUR: [Prosecutor], is it helpful for me to have this witness’s explanation of what she was saying and what she was doing? I have the text, that was her conduct at the time, you’ve established that. The question for me really is whether that text is consistent in any way with her account, isn’t it? [PROSECUTOR]: It is, I just didn’t want to be criticised at the end if I - HIS HONOUR: There may be certain - A. Good, tell me this doesn’t matter. HIS HONOUR: There may be certain code words there that you need an explanation from, but it shouldn’t go any further than that, I wouldn’t think. [PROSECUTOR]: I’m happy to deal with it that way. HIS HONOUR: I’m not sure there are any code words there, it looks pretty straightforward. [PROSECUTOR]: Yes. Perhaps out of abundance of caution. XN Q. You’ve used the word ‘gear’ again, same meaning as drugs - A. Methamphetamine, yep. -- 75 of 121 -- [2024] SASC 127 Nicholson AJ 74 HIS HONOUR: I’ve been in this court for 17 years, I know what gear is. [PROSECUTOR]: I’m sure your Honour does. A. Yes. HIS HONOUR: And I’m the one that counts here. [PROSECUTOR]: Yes. At the risk of frustrating your Honour, I’m going do one more. HIS HONOUR: I’m not frustrated, just trying to be helpful. XN Q. Can you turn over to row 466, which is on p.14, we see the response you get from [the accused] there. A. Yep. Q. And he referenced his understanding that he fucked up. A. Yep. Q. What was your understanding of what that could have been a reference to. OBJECTION: [DEFENCE COUNSEL] OBJECTS OBJECTION ALLOWED A. There’s not much it could be about - XN Q. Apart from the events in the unit - A. Yep. Q. Between then and 9 February, had you had any other issues with [the accused]. A. No. He rests his case? It’s dinner time for me in gaol right now. B was not cross-examined about her post-Kilburn unit incident text exchanges with the accused including the angry text. 168 The accused gave the following evidence in chief on this topic.195 Q. Then there’s a number of requests from B and/or C for you to get drugs for them, do you see that. A. Yes. 195 T492-493. -- 76 of 121 -- [2024] SASC 127 Nicholson AJ 75 Q. Did you put them in the deep, so to speak, as a result of what happened between yourself and Michael Purse. A. At the time I thought so, yes. HIS HONOUR: Sorry, what did you say? [DEFENCE COUNSEL]: Did you put them in the deep, quote, unquote. XN Q. If you go to line 435 there’s a message from [B] to you where she says this ‘You haven’t only put us in the deep end with something that didn’t concern us at all’, I’m going to ask you this: did you put them in the deep end. A. At the time I thought so but my understanding was Purse was still alive and this didn’t have anything to do with his murder. Q. What did you understand that this had to do with. A. That Michael Purse has been, obviously, stabbed accidentally and then [C] has obviously taken him somewhere and he’s gone to the police and subsequently the police have raided a unit and I thought people had been arrested for the firearms and the drugs that were there. Q. Is that what you thought. A. Yes. Q. So did you know where Michael Purse was as at 12:01:23 on 9 February 2019. A. No, I didn’t. As you can see in the paragraph, she’s replying to my question of ‘Is he okay?’. Q. And you are referring there to line 432 where you say ‘Hey, is [C] okay?’ - A. No. Q. - correct. A. No, I’m - in 435 when she replies ‘And no he’s not okay’ she’s replying (scil: referring) to Purse. The last three answers above are disingenuous. B is clearly answering the accused’s earlier enquiry “Hey, is [C] okay?”. She is not referring to an enquiry, not made to her, about whether Mr Purse was okay. 169 As to be expected, the topic was pursued vigorously during cross-examination. The accused could not recall if he had turned his phone off from 10:19 pm on 7 February to 4:10 pm on 8 February 2019, during which period the B/C device had been trying to contact him.196 He could not recall what the two minute and 56 second phone call at 6:07 pm on 8 February was about but denied 196 T633. -- 77 of 121 -- [2024] SASC 127 Nicholson AJ 76 that it was a discussion about his having left C to deal with the dead body of Mr Purse.197 He denied that a topic discussed had been “the events that had occurred in the [Kilburn] unit”.198 He denied that, in that conversation, B and C were frustrated with him for “leaving the unit and going off … leaving them to deal with the dead body” and that it was for this reason that he was to “tee up some gear” for them.199 For reasons later explained, I do not accept these denials as truthful. 170 The accused was asked about what the message “hey is [C] ok” had been about.200 A. Just asking if he’s okay. Q. Why were you asking that. A. Because I thought he was arrested. Q. Why did you think that. A. We’ve already gone over this topic. Q. You and I haven’t, [the accused]. Why did you think [C] was arrested. A. For guns. Q. Yes, but what gave you the impression he’d been arrested. A. I can’t recall. Q. You’re just making that up, aren’t you, [the accused]. A. No, I’m not. Q. You’re asking if he was okay because of the situation we’ve been talking about: the dead body left in his car. A. Well, according to you, I’m with him the whole time so I’d know if he’s okay so it’s an oxymoron question, wouldn’t you say? Q. That message is sent on 8 February, so it’s the following day, isn’t it, it’s the day after you’ve had your car accident. A. Yep. Q. So you’re not with him at that point, are you. A. No. 197 T634. 198 T634. 199 T634-636. 200 T637. -- 78 of 121 -- [2024] SASC 127 Nicholson AJ 77 171 The accused was asked about the angry text.201 It is a lengthy passage better to be set out in full than summarised by me. Q. What did you understand that message to be about. A. About bringing him there and the fight that happened between me and him. Q. And that’s it. A. That their car’s fucked. Q. What did you understand about their car being fucked. A. It was just fucked. Q. It seems to suggest that you’re responsible for their car being fucked in that message, doesn’t it. A. Yes. Q. Did you understand what that was about, why you were responsible for their car being fucked. A. Well, a lot of conclusions ran through my mind but I didn’t know any facts, no. Q. Because your response to that is the response we see, after a number of attempts to call and contact, is really the response at 466, isn’t it, over the page at 466.202 A. No, on 444 I have a seven second phone call. Q. Did you talk in that seven seconds. A. I dare say so. Q. What did you say in that call. A. I cannot recall. Q. If you had a conversation in that seven second call at 444 at 3:13:43 p.m., why did you send a message at the same time, at 3:14:43, saying ‘Please call me’. A. Maybe the signal dropped out, I don’t know. I cannot recall. Q. You’re not going to ask them to call you if you’ve had a conversation with them in that seven seconds, are you. A. I cannot recall. Q. If you go to line 466 - A. Yep. 201 T638-642. 202 The accused’s text set out earlier in subparagraph (xi) “I tried so hard to sort this out …”. -- 79 of 121 -- [2024] SASC 127 Nicholson AJ 78 Q. - after a number of attempts to contact and speak, that’s your response in reply to [the angry text] from [B] at row 435, isn’t it. A. Yes. Q. That’s your responding to [the angry text]. A. Yep. Q. And you say ‘I understand I fucked up’, do you see that. A. Where it says ‘I understand I fucked up but it was beyond my control’? Q. Yes, you see that. A. That bit, yeah. Q. In your mind, what had you fucked up. A. I had a fight. Q. That wasn’t your fuck up, though, was it. A. Well, I brought him there, didn’t I? Q. Mr Purse was the one that started the fight. A. Yes. Q. [C] was the one who said ‘I’ll sort this situation out for you’ - A. Yes. Q. - that wasn’t your idea, so what had you done wrong. A. I’d brought him there. Q. Why didn’t you say ‘I’m sorry for bringing him there, but the rest was out of my control’. A. Sorry I didn’t write it more plainly, I didn’t know it was going to be used against me five years later. Q. You were admitting to being involved in a fight with Mr Purse that escalated - A. That was beyond my control, yes - Q. - to the point where you killed him. A. - but killing him, no. Q. You don’t say anything in that message about ‘What are you talking about with your car, how did I ruin your car?’, do you. A. No, I just came to conclusions in my own head. I would discuss it when I seen them. -- 80 of 121 -- [2024] SASC 127 Nicholson AJ 79 Q. You knew full well what the car was a reference to, it’s a reference to a dead body being placed in the back of it - A. I didn’t know what happened to the car. Q. - that’s what that was about. And you knew what that was about, didn’t you. A. No, I did not. Q. And when you said ‘I understand I fucked up’, you were also accepting that you’d ruined their car by having a dead body in the back. A. No, I did not. HIS HONOUR Q. If you could just go back to line 435, the long text of complaint to you, it says there in about the middle. A. Yep. Q. ‘I cannot believe you’ve been so careless. Let me tell you right now our car, well, it’s no good and we shouldn’t have to go without because you fucked up. So you’ll need to organise cash too to be able to buy us a runaround car’. Did you understand at that point what the problem with the car was. A. I was just under the conclusion - Q. Sorry, can you get to the microphone. A. I came to my own conclusions at the time that his blood was in the car. Q. Sorry. A. I came to the conclusion at the time that there was blood in his car and faeces from Purse. Q. You came to the conclusion. A. Yes. Q. When you got that email. A. Yes, that text. Q. That there was blood and faeces - A. And faeces, yep. Q. - in the car. A. That was my conclusion at the time, yes. Q. That’s what you thought when you read that message. A. Yes. -- 81 of 121 -- [2024] SASC 127 Nicholson AJ 80 XXN Q. Where did the idea of faeces come from. A. Well, after he’s been stabbed in the stomach region I thought there would have been faeces. That’s why the car’s ruined and the blood. I didn’t think there was going to be that much blood from a knife wound in the stomach, so I came to the conclusion. Q. You’re just making that up, aren’t you. A. No, I’m not. Q. You didn’t ask anyone to put the bleeding, perhaps soiled himself Mr Purse in the car, did you. A. No, but when [C] said he would sort it - deal with it, I thought that’s what he was implying. HIS HONOUR Q. If there had been some blood and faeces in the car, did you not think that that could be cleaned up, why would that stop the car from - A. Yeah, but the car, the car seats - Q. Get into the microphone. A. The car seats in that vehicle, they were like cotton material, they wasn’t leather or the fake leather. Q. They were what, sorry. A. It was the material, like cotton material seats, so it would’ve just soaked through to the cushions, to the foam in the seats. Q. So you had those thoughts at the time. A. Yeah, that’s what I thought. Q. That the car was ruined because blood would have stained through the seat. A. And faeces, yes. Q. The cloth seats. A. Yeah, and urine and that. XXN Q. If we go back to that message, after the part we were just talking about, the message goes on to say ‘After what you have done, you still couldn’t go out of your way to make something happen no matter what it took’ and then it goes on ‘So before you find yourself in more trouble’. A. Yep. -- 82 of 121 -- [2024] SASC 127 Nicholson AJ 81 Q. What did you understand that to be about what you had done, first of all. A. Just bringing him there and the incident that occurred. Q. Why were you going to find yourself in more trouble for that. A. I thought they were threatening me. Q. If they were threatening you, why did you respond, effectively, ‘Sorry, I understand I fucked up’. A. Because that’s how I felt. I felt bad for bringing him to the unit. HIS HONOUR Q. So what did you understand they thought you had done that was wrong. A. Just bringing him to the unit and having a fight in their house. XXN Q. It was a fight that you hadn’t started, on your account. A. But they didn’t know that at the time. Q. I want to suggest that the reality is that you were sorry because had you brought a man and killed him in their unit and left them to deal with the dead body. A. No, I did not. Conclusions with respect to the evidence of the accused 172 Save for one potentially important matter, I reject the accused’s account of what occurred following his arrival at the Kilburn unit with Mr Purse and A. The potentially important matter still to be considered is the question of who introduced the knife into the physical altercation. 173 I am satisfied beyond reasonable doubt that A and B have given truthful accounts of what they say took place between Mr Purse, the accused and C; commencing with the accused very early on initiating a physical attack on Mr Purse and concluding with an unsuccessful attempt by the accused and C to dispose of Mr Purse’s body in or about the area of Wild Horse Plains and their return to the Kilburn unit with his body. I am satisfied beyond reasonable doubt that where the accused’s Kilburn unit evidence differs from that of A or B, he has not been truthful. I reject the accused’s account for a number of reasons to which I will come shortly. 174 However, the question of whether or not the accused perpetrated gun butt violence at the Birkenhead unit against Mr Purse four days or so before the Kilburn unit incident has caused me difficulty. This evidence, given by A, was evidence of discreditable conduct as that term is deployed in section 34P of the Evidence Act. It was not objected to. Nevertheless, it cannot be used to suggest that the -- 83 of 121 -- [2024] SASC 127 Nicholson AJ 82 accused was more likely to have committed the charged offence because he had engaged in this discreditable conduct (the “impermissible use”) and it was not admitted for this purpose. However, it would be admissible for purposes other than the impermissible use upon the satisfaction of the requirements of subsections 34P(2) and (3). Section 34P provides as follows. (1) In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)— (a) cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and (b) is inadmissible for that purpose (impermissible use); and (c) subject to subsection (2), is inadmissible for any other purpose. (2) Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if— (a) the judge is satisfied that the probative value of the evidence admitted for a permissible use outweighs any prejudicial effect it may have on the defendant; and (b) in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial. (3) In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose. 175 One such permissible use would be as evidence of animus towards Mr Purse held by the accused in the days before the Kilburn unit incident, going to the question of motive. A second permissible use would be as part of the factual basis for a “debt” or “obligation” having arisen whereby Mr Purse was to give the accused four phones and a sum of money within the next week. To admit the evidence for either of these purposes, I would have to find that the requirements in subsections (2)(a) and (3) had been satisfied with respect to the use in question. A third permissible use would be as evidence showing a particular propensity or disposition in the accused to act violently towards Mr Purse, being a piece of circumstantial evidence of a fact in issue – did the accused act violently towards Mr Purse at the Kilburn unit? To admit the evidence for this purpose, it would have to satisfy the more onerous test in subsection (2)(b) in addition to the tests in subsections (2)(a) and (3).203 203 MDM v The Queen (2020) 136 SASR 360 at [84], [107]-[111] (Peek J, Kourakis CJ and Kelly J agreeing). -- 84 of 121 -- [2024] SASC 127 Nicholson AJ 83 176 On one view of the matter, the distinction between using this type of discreditable conduct evidence (physical violence directed at Mr Purse) for the first and possibly the second permissible uses but not for the third can be seen as so fine as to require satisfaction of the more onerous test in any event particularly if a jury were to be involved. 177 I was not asked during the trial (nor on a de bene basis) to undertake the subsections 34P(2) and (3) exercises with respect to any of the three possible permissible uses. Nor was I asked to do so with respect to the multiple types of other arguably discreditable conduct evidence earlier discussed. The prosecution, in its written closing address, has sought to rely on A’s evidence concerning the Birkenhead assault for the first two permissible purposes. I am satisfied that in these respects, its probative value does outweigh any prejudicial effect it may have (subsection (2)(a)) particularly where I, as Judge, am sitting without a jury. Insofar as may be necessary, I am satisfied that the evidence has strong probative value having regard to the issues arising in this trial (subsection (2)(b)). I am also satisfied that, as part of my consideration of the issues, these uses can be kept sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that impermissible use. 178 The accused conceded that he was present at the time of the Birkenhead assault but said that it was perpetrated by F and without the use of a firearm. 179 A considerable number of people (at least seven, in addition to the accused, Mr Purse and A and including F) were present, none of whom, except the accused and A, gave evidence. I remind myself that I must not speculate as to why each one did not give evidence or as to what each one would have said if they had given evidence. 180 According to the accused, at one point, F “jumped up and started attacking” Mr Purse.204 According to the accused, the violence came from nowhere without apparent provocation. There is nothing in the evidence to explain the attack other than various bits of hearsay evidence to the effect that previously F may have assaulted Mr Purse and was antagonistic to him as a result of prior dealings. After delivering “over a dozen” blows the assault “just stopped” and the accused, Mr Purse and F sat down together and spoke. The accused could not recall what they spoke about. 181 The accused was disingenuous concerning the location of his sawn-off shotgun (“shorty”).205 He said it was not at Birkenhead or in his possession or in his car whilst at the Birkenhead unit and that he had stored it at the house of an associate who was with him at the Birkenhead unit.206 However, he later said that 204 T537. 205 A photo of which appears at exhibit P2, p 10. 206 T427. -- 85 of 121 -- [2024] SASC 127 Nicholson AJ 84 he shared the home of that associate,207 that is, he had control of the firearm at his own house. 182 A’s evidence was to the effect that she and Mr Purse were at the Birkenhead unit playing darts with others when the accused walked in with a gun and started beating Mr Purse in the face with its butt.208 A described the gun in terms closely matching that owned by the accused and shown in the photograph at page 10 of exhibit P2. This firearm was seized from the accused’s possession, on 3 March 2019,209 approximately one month after the Birkenhead incident. It was later tested for DNA but nothing attributable to Mr Purse was found.210 As would be expected, but of no relevance, DNA attributable to the accused was part of a mixed profile of three contributors.211 183 B described the firearm “shorty” given to her by the accused for safekeeping, at the Kilburn unit, only days after the Birkenhead incident, in terms to a degree consistent with the photograph and A’s description. However, she described “shorty” as being “double [barrelled]” – an inconsistency. Nevertheless, I infer that a firearm, essentially of the type described by A as being in “use” at the Birkenhead unit, was available to the accused at or about the time of the Birkenhead unit incident. 184 A recalled that the accused said Mr Purse had a “smart mouth”, during the assault, consistent with the tenor of the text messages from Mr Purse to the accused during the day or so before the Birkenhead unit incident.212 185 A heard a “horrible” scream by Mr Purse during the assault213 which she later described as similar in sound to the noise she heard during the Kilburn unit assault. 186 According to A, the Birkenhead unit assault stopped when an agreement was reached that Mr Purse would provide to the accused within a week a sum of money – either $1,000 or $10,000 – and four mobile phones.214 This is consistent with the accused having been aggrieved about the Mount Gambier incident which cost him $5,000 and with the accused’s evidence of participating in a discussion with Mr Purse. A denied that F or another named man had been involved in the assault. She clearly remembered the accused as being the perpetrator.215 207 T432 (see T504-505 for cross-examination). 208 T113. 209 Exhibit P1, agreed facts 44-46. 210 T400-401. 211 Exhibit P1, agreed fact 57. 212 T123, exhibit P7 entries 139-144. 213 T120. 214 T123-125. 215 T184, 210-211. -- 86 of 121 -- [2024] SASC 127 Nicholson AJ 85 187 The accused’s account is inconsistent with the literal terms of the text message he sent to Mr Purse at 1:44 am on 3 February 2019. Agreed fact 16.1216 is as follows. Between 12:30 am and 1:45 am on the 3 February 2019, the devices of the deceased, [A], [a man who had come to the Birkenhead unit with the accused] and the accused were in the same vicinity as one another and consistent with them all being in Birkenhead and in particular at [the Birkenhead unit]. As such, I infer that the text was sent after the assault on Mr Purse earlier that evening. The text was in these terms. At least you get a cool story to tell [first name of F] now. I accept the prosecution submission that this text makes no sense if F had been the perpetrator of the Birkenhead assault as contended by the accused. As the prosecution submitted, the text as written is also consistent with A’s evidence that, following the assault, an arrangement between Mr Purse and the accused was entered into and they left apparently on good terms. 188 However, during his evidence in chief, the accused said that the message contained an error and was intended to say “at least you’ve got a cool story to tell about [first name of F] now”.217 On its face, this seems plausible. Whilst there is a distinct difference between “to tell [F]” and “to tell about [F]”, both make sense and a text hastily constructed can result in a word simply being omitted. In that sense, it would not be a typical typographical error but an error in composition not seen and corrected before the “send” button was activated. However, during cross- examination, the accused, when taken to the text as sent, said this.218 Q. That’s a reference so he can tell [F] about you bashing him at Birkenhead. A. I don’t know how that would be a cool story to tell but. Q. What did you mean by that ‘At least you have got a cool story to tell [F] now’. A. No about [F] now I’m pretty sure it’s meant to say. Q. The word ‘about’ is not in there. A. I don’t know. You’ve heard of things called typo before? Q. It’s not a typo, it’s just missing a word, isn’t it. A. Yes. Q. A word that completely changes the meaning of that message, do you agree with that. 216 Exhibit P1. 217 T488. 218 T549-550. -- 87 of 121 -- [2024] SASC 127 Nicholson AJ 86 A. Yep. Q. And that’s an edit that you’re now making to make this fit in with your story or version of events, isn’t it. A. No, my recollection. Q. Because it would make no sense no Mr Purse for have a story to tell [F] if [F]’s the one who assaulted him isn’t it. A. I’m not quite sure. They might have had a past relationship. Can be a lot of things but from what I recall I was meant to send that text message ‘about’. Q. And you specifically remember that now, do you. A. What are you trying to get at? Q. I’m asking you do have you a specific memory that the word about was meant to be in that message. A. It was the only one that makes sense. I don’t recall sending text messages that night. Q. So the adding of the word ‘about’ is something you’ve now constructed to make that message make sense, is that what you’re telling us. A. Yes. Q. I suggest you were doing that because otherwise it wouldn’t fit with your version of events would you agree or disagree. A. Disagree. 189 The accused’s explanation appears to be a convenient one when considered with hindsight. It was fortunate that the omitted word served to completely change the text meaning in a way now helpful to the accused. Further, the accused’s evidence when giving that explanation ultimately disclosed reconstruction rather than actual recollection. Nevertheless, when considered without the benefit of hindsight, the explanation is, as earlier indicated, plausible. In the circumstances, I am not prepared to rely on the text in question as supporting the prosecution contention. I do not have a sufficient level of persuasion that the sending of the text was consistent with or supportive of a finding that the Birkenhead violence was perpetrated by the accused. 190 My doubts concerning the text message which, if the accused’s explanation were to be correct, would support his contention that he was not the perpetrator, and the fact that the DNA swabbing of “shorty” showed a mixed profile of three contributors, none of whom was Mr Purse, have caused me to pause. I am not sufficiently persuaded that it was the accused who inflicted the gun butt violence at the Birkenhead unit. It is possible that A has been mistaken and that she confused F with the accused on this occasion. I accept A’s evidence of hearing the “horrible” scream which she later said was similar to what she heard in the Kilburn unit. I accept her evidence that the accused and Mr Purse had a discussion and -- 88 of 121 -- [2024] SASC 127 Nicholson AJ 87 reached the agreement she described. The accused conceded that he, F and Mr Purse sat down and spoke after the assault. 191 By way of conclusion concerning the Birkenhead violence incident, I do not accept that the accused acted violently on this occasion. As such, it cannot and has not been used as itself (the fact of the violence) being evidence of animus or specific propensity to use violence against Mr Purse (the first and third permissible uses). However, I am satisfied that it was the occasion for the accused entering into an “agreement” with Mr Purse to provide the accused with mobile phones and money (the second permissible use). 192 I am satisfied that prior to both the Birkenhead unit and Kilburn unit incidents, the accused was quite antagonistic towards Mr Purse. It is not plausible that Mr Purse, in letting down the accused over the Mount Gambier venture at a cost of $5,000 had not significantly angered the accused. On 26 January 2019, the accused sent the following text to Mr Purse.219 So what’s the fucking go you said an hour you would let me know stop fucking me around if you can’t do it just say so Apart from a two second phone call later that evening, the next phone communications between the two occurred on 2 February 2019220 which included the following text from the accused.221 Listen here you tip rat you think your a big boy meet now or when I see you I am going to scrape your face.of with a brick 193 I am also satisfied that the accused had been of the belief that Mr Purse was a “dog”; that is, a police informer.222 As such, this would have increased his antagonism towards Mr Purse as at the time of the Kilburn unit incident. I find the contrary asserted by the accused to be implausible. 194 For these reasons, I am satisfied that the accused had a motive to harm the accused at the time of the Kilburn unit incident. Whether he acted on that motive is, of course, a very different question. 195 It is important that I put this potential motive in its legal and logical context. The prosecution is not required to prove a motive; motive is not an element of the offence charged. Sometimes a motive or the true motive for a crime cannot be identified. Where there is evidence of motive, as in this case, it is relevant to both the question of intent and the question of whether the accused committed the relevant act(s). Motive is a type of circumstantial evidence – the circumstances bearing on motive, discussed above, are to be considered in the context of the whole of the prosecution’s evidentiary case. It is a matter for the trier of fact to 219 Exhibit P7, entry 88. 220 Exhibit P7, entries 139-144. 221 Exhibit P7, entry 142. 222 T568. -- 89 of 121 -- [2024] SASC 127 Nicholson AJ 88 determine whether a particular motive existed and, if so, its significance, that is, the weight, if any, it should bear when deciding whether or not the prosecution has proved its case beyond reasonable doubt. 196 I do not accept the accused’s account of having left the Kilburn unit immediately after Mr Purse suffered the knife wound. His account at this point makes no sense for the reasons, including the prosecution contentions, earlier set out in my discussion of the accused’s evidence. I add the following. 197 The accused’s account of his returning to the Kilburn unit in the early daylight hours to collect his phone lacks plausibility. His evidence as to the time he returned to the Kilburn unit was plainly incorrect. He initially said it was at “sunrise”, that is, at about 7:00 am.223 However, he also said he arrived (and he was seen by A and B to have arrived) at the same time as did C. That had to have been well after sunrise for February and would have been at or about 9:00 am.224 Whilst it is possible that the accused’s memory has failed him here, this is a substantial time difference. 198 The notion that he “presumed” that Michael left for work at about 7:00 am and that he estimated having arrived at the Kilburn unit at 7:15 am “if I left at 7” suggests he had no recollection of this, consistent with the accused not having been at Michael’s at all. Of course, on the prosecution case, the accused was bogged at Wild Horse Plains at or about 7:00 am. 199 The accused’s evidence of his arriving at the Kilburn unit just as C and E arrived posits a coincidence that is quite remarkable. He did not arrive a little before or a little after they arrived. He said he arrived, in effect, at precisely the same time and entered the Kilburn unit with C and E, thus allowing for an innocent explanation for the observations made in this respect by A and B. Coincidences do occur and truth can be stranger than fiction but, when considered in the context of the other factors tending against the truth of the accused’s account here, this coincidence is fiction. 200 The accused’s evidence of his interaction with C and his lack of interaction with E upon their ostensible meeting up that morning also lacks credibility. On the accused’s account, Mr Purse had suffered a knife wound to the abdomen area and was lying on the floor. He had seen the knife sticking in Mr Purse’s body.225 Yet, he had left the Kilburn unit straight away and had no idea what happened thereafter. According to the accused, in his evidence in chief, C told him only that “it went too far and they dealt with it”. The accused enquired no further. Surely he would want to know what “it went too far” meant. What went too far? And how far was too far? Mr Purse had already suffered a debilitating knife wound to the abdomen. Surely he would want to know what “dealt with it” meant. What had to be dealt with and how was it dealt with? Where had C and E been? The accused 223 T461. 224 C’s car was photographed heading south on Port Wakefield Road at 8:28 am. 225 T472. -- 90 of 121 -- [2024] SASC 127 Nicholson AJ 89 was either remarkably disinterested, which I cannot accept, or a conversation such as he recounted did not occur. Surprisingly, even the limited terms of this conversation had dropped out of the accused’s memory by the time he was cross- examined.226 Q. Do you speak to them at that point. A. I dare say so, yes. Q. Well, do you have a memory of speaking to them at that point. A. Yes. Q. Did you say ‘What’s happened to Mr Purse?’. A. I don’t recall the exact words. Q. I’m sure you don’t remember the exact words, but did the topic of what happened to Mr Purse get discussed with [C] at that point. A. I can’t recall. Q. So you can’t recall whether you had any conversation with [C] about what happened to Mr Purse. A. I know I did. I just cannot recall the conversation. Q. So you have a clear memory of him saying to you, before you left, he’ll sort him out. A. Yeah. Q. But no memory of any discussion when, a few hours later, you came back to that unit and Mr Purse wasn’t there. A. No, it was - by this time I’d consumed drug, I’m high, but I do remember having conversations but to the effect of it, I cannot really recall. Saying about something going too far. 201 Furthermore, the accused did not seem surprised by the presence of E and appeared to have no conversation or interaction with E other than that with C, summarised above, when E may have been present.227 Surely the accused would want to know why E was there. How did it come about that E was with C? Apparently, it was during the dark early hours of the morning when the accused had left C to “deal with this fuck head”. Why would C want to contact E, albeit a lackey of his,228 at this time of the night, that is, some time before 4:54 am,229 to make him aware of and involve him in what may have been serious criminal 226 T628. 227 Although, according to the accused, E stood at the door. 228 T348. 229 C’s car was photographed on Port Wakefield Road heading north at 4:54 am; exhibit P1, agreed fact 25.1. -- 91 of 121 -- [2024] SASC 127 Nicholson AJ 90 activity, when the cause of it all (bringing Mr Purse to the Kilburn unit) was standing in front of him and available to assist in “dealing” with the problem? 202 As earlier discussed, the accused was unable to explain how it was that the phone being used by him that night, having disconnected from the network at 1:37 am, had been reconnected at 4:01 am. This is quite inconsistent with the accused having dropped and left his phone at the Kilburn unit such that he had to return to collect it some hours after its reconnection to the network. 203 The cross-examination of the accused concerning the text he sent to B at 7:59 pm on 8 February 2019230 – “hey is [C] ok”231 – is set out earlier. I do not accept that the accused was being truthful here. There was no plausible basis available to the accused at this time to form an assumption that C had been arrested for unlawful firearms possession. On the accused’s account, Mr Purse had suffered a knife wound during their physical altercation and C had taken care of a situation that had gone “too far”. Surely, if C had been arrested within one day or so, the accused’s first thought would have been that the arrest had something to do with the injury to Mr Purse or things going “too far”. During his examination in chief, a longer passage of which is set out earlier, the accused gave a more detailed explanation for this belief.232 A. … my understanding was Purse was still alive and this didn’t have anything to do with his murder. Q. What did you understand that this had to do with. A. That Michael Purse has been, obviously, stabbed accidentally and then [C] has obviously taken him somewhere and he’s gone to the police and subsequently the police have raided a unit and I thought people had been arrested for the firearms and the drugs that were there. Q. Is that what you thought. A. Yes. This did tie it back to Mr Purse’s injury, but it is quite unconvincing. 204 Whilst the language can be seen as ambiguous, B’s angry text, in a number of respects, is consistent with her account of events. The accused’s explanations or interpretations of the angry text, proffered during his evidence, are not credible. The angry text, on the prosecution case, initially comprised a prior consistent statement. However, its admission into evidence was not objected to. And, B’s evidence was to the effect that its contents did reflect her state of mind at the time; it was adopted as her evidence. When endeavouring to establish what in fact occurred in the Kilburn unit, I have relied only on the evidence of B given in court. I have relied on the terms of the angry text as reflecting B’s state of mind at the 230 Exhibit P7, entry 432. 231 T637. 232 T493. -- 92 of 121 -- [2024] SASC 127 Nicholson AJ 91 time and to the extent that it is to be seen as consistent or inconsistent with B’s account in court when forming my assessment of the reliability and credibility of B’s evidence. I have taken into consideration the examination and cross- examination of the accused on the topic of the angry text and the post-Kilburn unit text exchanges with B generally when assessing the credibility and reliability of the accused’s evidence and when considering whether any of the texts amount to admissions concerning his involvement in the Kilburn unit. 205 The assertions by B in the angry text included the following: (i) that the accused “carelessly single handedly … brought [B, C and D] into [the accused’s] fucking bullshit”; (ii) that the accused put B, C and D “in the deep end with something that didn’t concern [them] at all”; (iii) that the “events” were “tense” and “stressful”; (iv) that B and C’s car was “no good” because the accused “fucked up” such that they needed and the accused should provide them with another “run around” car; and (v) that the accused has put B and C into a “shit storm”. I accept that, on their face, these assertions are consistent with both the prosecution and the defence cases as to what took place in the Kilburn unit. However, the vitriol and the extreme anger conveyed by B throughout the angry text is palpable. The angry text presents as a much more understandable or expected response to the events B described having seen than had the accused simply brought Mr Purse to the Kilburn unit to do a drug deal, during which he, without warning, launched an attack on the accused. 206 The statement by B “I’m going too tell you straight … you have more than disrespected us I’m ashamed [redacted]” (emphasis added) implies a belief that the accused had engaged in some form of moral turpitude beyond that which B, even within her milieu, ordinarily would tolerate and is inconsistent with Mr Purse having attacked the accused. 207 The accused, during examination in chief, accepted that he had put B and C in the “deep end” as asserted by B in the angry text. I have earlier set out what the accused said he thought this to have meant and which I find to be unpersuasive. By the time the angry text was sent and received by the accused, the communications of apparent substance between the accused and B and/or C and which are in evidence had been: on the defence case, when the accused bumped into C at the Kilburn unit and was told something along the lines “it went too far and they dealt with it”; the text messages earlier set out; and two phone conversations of two minutes and 56 seconds and one minute and 53 seconds respectively. It is fanciful that the accused would have been kept in the dark by -- 93 of 121 -- [2024] SASC 127 Nicholson AJ 92 B and C about what had happened to Mr Purse after, on the defence case, the accused left the Kilburn unit having put B and C into the “deep end” and having left C to deal with it. This is especially so given that B was clearly enraged. Furthermore, the whole tenor of the angry text and the accused’s reply is that the accused knew full well what B was complaining about with respect to the car and the “deep end”. 208 During cross-examination about the angry text,233 the accused conceded that he had “fucked up” as far as B and C were concerned but again confined his failure to having brought Mr Purse to the Kilburn unit with the consequence that he attacked the accused with a knife and stabbed himself. It is not plausible that the accused would so readily take responsibility for these matters without argument, if his account of what happened in the unit were true. 209 Further, the accused’s denials of knowing how or why he had caused C’s car to be unusable and his speculations about this matter as well as about why B was so angry, which he appeared to be developing as he gave evidence, were again unpersuasive. 210 For these reasons, and save for further consideration of the provenance of the knife, referred to earlier in this section, I cannot accept as truthful and reliable any of the accused’s account: of what happened in the Kilburn unit between him and Mr Purse; and of the accused’s conduct thereafter until the Flinders Park car accident. However, and notwithstanding my rejection of the accused’s account, the onus to prove the charge still remains with the prosecution. 211 Apart from the direct evidence of B, there is no other direct evidence of the accused leaving the Kilburn unit with C and driving off with Mr Purse in the boot of C’s car. For reasons earlier given, I do not accept the accused’s denial but that, of itself, does not put him in C’s car. However, there is some circumstantial evidence that is consistent with the proposition. (i) C left the Kilburn unit in his car in the darkness some time before 4:54 am and arrived at Wild Horse Plains with a second person in the car. (ii) The second person was not D and for reasons earlier given, I find it highly improbable that the second person was E. (iii) The only other male person in the Kilburn unit that night was the accused. (iv) There are aspects of the evidence of Messrs Baker and Williams concerning their recollection of the second person who was with C234 at Wild Horse Plains that are consistent with that person having looked like the accused. Both described a shortish man of “slim” or “skinny” build, although their estimates of height and weight exceeded the height and weight of the accused. 233 T638-642, set out earlier. 234 The man with the “rat’s tail”. -- 94 of 121 -- [2024] SASC 127 Nicholson AJ 93 One described the person, in hesitant terms, as wearing a blue (that is, at the dark end of the spectrum) or white singlet; the other described seeing a dark shirt and pants that may have been long. The look of the trousers in the photo of the accused, running from the car accident, might explain this uncertainty as to long pants, if in fact the person seen was the accused. Both described the person’s hair as short (albeit, one said blondish, the other said dark). 212 Each of Mr Baker and Mr Williams identified C in the police photo pack procedure but failed to identify the accused. I am aware of the many considerations, notorious to criminal judges, and the empirical evidence, that underpin the directions given to juries, calling for caution when assessing identification evidence. I have reminded myself that description and photo pack recognition evidence such as that given by Mr Baker and Mr Williams has been shown, in many cases, to be unreliable as to false positives with the risk of wrongful convictions. It can also be unreliable as to false negatives. 213 In the present case, the evidence comprises features consistent with and features inconsistent with the person seen at Wild Horse Plains with C having been the accused. The inconsistent features carry some but not much weight in terms of excluding the accused. The photo identification process occurred some 14 months after the event and I place minimal weight on the failure by the two witnesses to select the photo of the accused. I also place minimal weight on the evidence of Mr Baker and Mr Williams in support of the prosecution contention that the second man was the accused. 214 The accused was questioned about a missed phone call to Mr Purse’s phone and two text messages he sent to Mr Purse’s phone after the Kilburn unit incident: the “hey mate” text at 10:15 am, just hours after the Kilburn unit incident; the missed call at 6:41 pm the next day, 8 February 2019; and the text “hey everything ok chuck me a call” some seconds later.235 215 The accused’s evidence in cross-examination concerning the “hey mate” text and (briefly) the text on 8 February236 (set out immediately below) was self- evidently unpersuasive. However, I am conscious of the risk of engaging in circular reasoning. I have arrived at my ultimate findings in this matter without relying on those attempted communications as indicating a consciousness of guilt or as an attempt to distance the accused from having any knowledge of the fate of Mr Purse. Q. You send a message saying ‘Hey mate’. A. Yes. Q. So, that’s the same morning that Mr Purse pulled a knife on you. 235 Exhibit P7, entries 366, 430, and 431. 236 T631-633. -- 95 of 121 -- [2024] SASC 127 Nicholson AJ 94 A. Yeah. Q. The same morning that you told the court you were done with him. A. Yeah. Q. That you were done with the friendship is what you meant. A. Yeah. Q. Effectively that you wanted nothing more to do with him. A. At the time, yes. Q. And you leave with [C] to sort him out. A. I left the unit. Q. Yes. A. Yes. Q. On the understanding [C] was going to sort him out. A. Sort it out, yes. Q. And you’ve come back. You’ve had some discussion with [C] about Mr Purse, but you can’t tell us what that was. A. I cannot recall what it was, yes. Q. Why were you messaging him, at line 366, ‘Hey mate’. A. Just say ‘Hey mate’. Q. Why were you wanting to reach out and say ‘hey’ to this bloke who pulled a knife on you, that you were done with him. A. Because at the time I was done with him. Q. Well, what had changed between that point and 10.15 a.m. A. Passage of time. Q. Well, we’re only talking hours. A. Nine hours. Q. Well, what time did he pull the knife on you. A. Can’t be sure. Q. It was after 1.36, wasn’t it. A. Would be, yes. -- 96 of 121 -- [2024] SASC 127 Nicholson AJ 95 Q. So what happened in that eight, nine hours, whatever you want to call it – what happened in that time period for you to then want to reach out to this mate. A. Passage of time. Q. Well, what changed for you in that time. A. I’ve gotten over it. Q. What do you mean by that. A. Gotten over the fact what happened, you know. Q. In your mind, this man had pulled a knife on you – A. Yes. Q. – and you had a scuffle and he had been violent towards you. A. Yeah. Q. So, what in going over in your mind did you go over to then come to the realisation that actually you still wanted to be friends with him. A. Can’t be quite sure. Q. What I want to suggest to you is that your explanation isn’t true and that message was you sending a message to make it look like he was alive, knowing full well he was dead. A. No, it’s not. Q. You knew by that stage you’d been up to Wild Horse Plains in an attempt to dispose of his body. A. No, I had not. Q. And that the phone calls we see at 430 - the phone call at 430 and the message following at 431 were sent in the full knowledge that Mr Purse was no longer alive. A. At what time? HIS HONOUR: Sorry, what time are you talking about? [PROSECUTOR]: The missed call at line 430. HIS HONOUR: At line 430. [PROSECUTOR]: And the message at line 431. XXN Q. They were all sent or made in the full knowledge that Mr Purse was dead. A. No, it’s not. -- 97 of 121 -- [2024] SASC 127 Nicholson AJ 96 216 The accused also gave evidence about a meeting at a Smithfield shed, said to have been organised by E, between the accused, A, B, C and E on the day after the Parlour robbery which occurred on 17 February 2019.237 According to the accused,238 this was a pre-arranged meeting with its purpose being “to find out what happened to [Mr] Purse”. According to the accused, he did “not fully at the time” know what had happened and said during examination in chief that he only found out what happened at the meeting.239 Q. What did you find out had happened. A. That [C] was upset with him for being friends with [F] and apparently Purse told [C] that he was friends with [F] and business partners. Subsequently, [F] had stabbed and robbed [C] and [C] was dirty on it and [A] told him that they had money and they tried to rob Purse. Q. Yes. A. And they tried to drug him to get him to talk and when that didn’t happen they bashed him, then took it too far and they strangled him. 217 Following a late objection, it was agreed that this evidence was admissible only as relevant to the accused’s state of mind at the time. The accused’s evidence in examination in chief continued as follows.240 Q. At that point in time, did you find out what happened to Mr Purse. A. Yes. Q. And did you have any knowledge of anything about that. A. When I seen [A] the night before – Q. Yes. A. – she tried to tell me but she wasn’t making much sense and then when I seen [E] we arranged a meeting to be set to discuss it. 218 This evidence makes little sense and does not sit comfortably with either account of the Kilburn unit incident. It is unclear whether the first passage above is relating an event involving F that occurred prior to or after the Kilburn unit incident. The reference to “then [they] took it too far and they strangled him” would suggest an event between the Kilburn unit incident and the meeting on 18 February 2019. If so, it is not clear who “they” were. It would seem, according to the accused, that this is something A attempted, unsuccessfully, to communicate to the accused the night before the meeting. However, by the time of this meeting, the accused, on his account, knew what had taken place at the Kilburn unit before he left C to deal with the “fuck head”, 10 days had passed and the accused had 237 Exhibit P12A, agreed fact 58. 238 T485-487. 239 T486. 240 T486. -- 98 of 121 -- [2024] SASC 127 Nicholson AJ 97 received no response after the missed call and two “friendly” texts sent to Mr Purse on 7 February and 8 February 2019. 219 Later, during cross-examination, the accused said that a few days after the Kilburn unit incident but before the Parlour robbery, he had heard from another associate that Mr Purse had “got clipped”. He gave this evidence.241 Q. Did you ask him when. A. No. Q. Did you ask him any of the details. A. Yes. Q. What did he tell you. A. I asked him who by and he didn’t know. Q. Did you ask him where he’d heard that from and how he knew that. A. From associates of his. Q. Did you ask him who those associates were. A. Yes. Q. Did he tell you. A. No, he did not. Q. When you say ‘clipped’ you mean killed. A. Shot to death, yes. That was my understanding. Q. And was it your understanding that he’d been shot to death at the time you’d seen him at the unit. A. No, I thought he was alive after that. Q. So when you’re talking to [A] after that point and you say she’s making no sense, you were already under the belief that he’d been clipped. A. No, I was advised he could have been clipped. I had a suspicion, I thought he’d just taken off and he’s hiding. Q. I think I asked you before when did you first believe or come to learn that Mr Purse was dead, you said it was when […] told you he’d been clipped. A. That’s the first time I’ve heard about him being dead, but whether or not I believed it. 241 T495-496. -- 99 of 121 -- [2024] SASC 127 Nicholson AJ 98 Q. So at that stage you didn’t believe it. A. No. Q. When did you first believe Mr Purse was dead. A. When I tried to contact him, people hadn’t heard from him. I started getting a bit worried but I thought he was just laying low and then when I was with [A] she was gibbering on about something. Q. You didn’t really understand what she was saying. A. No, not really. Q. So at that stage you didn’t believe he was dead. A. No. Q. So when did you first believe he was dead. A. Well, I started to believe he was dead then but then when I seen [E] he told me a little bit about it and then it was a hundred percent confirmed at the Smithfield shed. 220 I cannot make sense of this evidence. I, again, find it implausible that the accused would have waited this long to find out what had happened to the man who had stabbed himself in the abdomen during a physical altercation with the accused at the Kilburn unit. The accused’s account of the information he acquired about Mr Purse being “clipped” and the information he later acquired at the Smithfield meeting does not sit consistently with the accused’s account of the Kilburn unit altercation and with having been told something along the lines of “it went too far” but C (and E) had “dealt with it”. Conclusions with respect to the evidence of A and B 221 I raise at this stage that the effect of B’s account as to what occurred in the Kilburn unit and her admissions as to her willing involvement in certain aspects, if accepted, would render her an accomplice; an accessory to any criminal conduct that took place. At the least, she would be an accessory after the fact but also perhaps from a time earlier, if she were found knowingly to have assisted by, for example, providing duct tape during the assault about which she gave evidence. As such, her evidence must be carefully scrutinised after taking into account the multiple concerns that arise whenever a trier of fact, including a Judge sitting without a jury, comes to assess the evidence of an accomplice with respect to the criminal conduct in issue. This is particularly so in this case, given the centrality of B’s evidence to the prosecution case. It has been, perhaps tentatively, submitted by the defence that A’s evidence should be assessed in the same way, as that of an accomplice. I am not persuaded that she is in this category. Nevertheless, ex abundanti cautela, I have treated her evidence as being that of an accomplice. 222 An accomplice will have an interest in minimising their role in the alleged offending and, in order to do so, unduly emphasising, exaggerating or lying about -- 100 of 121 -- [2024] SASC 127 Nicholson AJ 99 the alleged involvement of an accused. The evidence of an accomplice may seem plausible, because they have detailed knowledge of what occurred and the surrounding circumstances. As such, they may be able to tailor their account to fit with other evidence in the trial. 223 An accomplice may feel locked in to giving evidence consistent with their police statement for fear of being accused of giving false evidence or making a false statement to police. 224 An accomplice may also benefit from promising to give evidence against the accused. There is no evidence that A received any such benefit. However, B was granted immunity from prosecution, although one in limited terms. This was the only benefit of any substance she received. On 3 February 2023, B received the following written assurance from the Director of Public Prosecutions (SA).242 If you, [B], actively cooperate in criminal proceedings in this State against [the accused], [C] and [D] for the offence of murder which was allegedly committed on 6 February 2019, and if the evidence you give in those criminal proceedings is truthful, I, Martin Gerard Hinton KC, Director of Public Prosecutions for the State of South Australia, undertake that: • the evidence which you give or produce in the said proceedings, and • the fact that you did so, and • information or evidence obtained as a result, will not be used against you in criminal proceedings in the State of South Australia, except in respect of the falsity of your evidence. It is quite proper for a witness to receive a benefit for promising to cooperate with the prosecution. However, it can also lock them into maintaining, in their evidence, their initial account given to authorities, even if it is false or inaccurate, because if they were to change their account, they may lose the immunity. 225 As earlier said, an accomplice may be motivated to exaggerate their evidence or lie about the accused’s actual conduct in order to ingratiate themself with the prosecuting authorities; to tell them what the accomplice thinks they would want to hear. 226 For these reasons, it can be dangerous to convict an accused on the uncorroborated evidence of an accomplice unless the trier of fact, having first carefully scrutinised it, accepts that it is credible and reliable. 227 Evidence is corroborated, or confirmed, when there is independent evidence that shows that the accused committed the offence charged. In this case, the prosecution is dependent on B’s evidence for its alleged factual basis underpinning the charge of murder. Whilst A’s evidence serves to support certain features of B’s evidence (see the section headed “Areas of consistency between 242 Exhibit P3. -- 101 of 121 -- [2024] SASC 127 Nicholson AJ 100 the accounts of A and B” earlier in these reasons) A’s evidence is not sufficient to corroborate B’s account of the accused’s alleged participation in actions which caused the death of Mr Purse. Nor, in any event, can one “accomplice” corroborate, in the sense identified above, the evidence of another accomplice. 228 Corroboration in the sense just described is not essential. However, given its absence, I must take and have taken into account that it would be dangerous to convict the accused on the evidence of B and A unless, in each case, having carefully scrutinised it, I am convinced beyond reasonable doubt that it is true and reliable. 229 In undertaking this task, I have at the forefront of my mind that A and B had the opportunity and may have been motivated to give false accounts. 230 For the reasons earlier discussed, I accept that some aspects of the evidence of A and B cannot be relied on and that there may be peripheral aspects of A’s evidence where she has been disingenuous and possibly has lied. However, having carefully scrutinised the evidence of B, after taking into account the risks referred to above, I find B to have been an impressive witness, to have given her evidence honestly and, as far as those aspects essential to the prosecution case are concerned, reliably. I am also satisfied, on the same basis, that A’s account of what she observed the accused do during the Kilburn unit incident to be honest and reliable. 231 I accept beyond reasonable doubt that the events at the Kilburn unit, earlier identified as common to the evidence of A and B, in fact occurred. As I have said, there is no evidence and there has been no suggestion of collusion. The propositions that A and B met for the first time that night and that B was, from the outset and remained, antagonistic towards A have not been challenged. 232 The aspects of the Kilburn unit evidence that are common to the accounts of A and B are of such a nature that any suggestion that both have lied or been mistaken, coincidentally and without collusion, can only be fanciful. 233 My strong impression of B when giving her evidence is that she had been extremely horrified about and would not forget what she saw the accused and C do to Mr Purse at the Kilburn unit. I am satisfied that she gave a truthful and, except where qualified in these reasons, reliable account of what took place in the Kilburn unit. 234 It follows from the analysis to this point that I do not accept the accused’s account, where it differs from that of B, even as a reasonable possibility. I make the following findings of fact as to what took place, and the order in which events occurred, in the early hours of the morning of 7 February 2019. I am satisfied of these findings beyond reasonable doubt. What follows is a summary of, in the main, B’s observations. However, except to the extent qualified elsewhere in these reasons, I accept in full her more detailed descriptions. The findings are as follows. -- 102 of 121 -- [2024] SASC 127 Nicholson AJ 101 (i) The accused, without provocation, punched Mr Purse twice to the head thus commencing a violent assault. (ii) The accused called for and obtained duct or gaffer tape with which he securely bound Mr Purse’s hands and/or wrists. (iii) The accused also put tape over Mr Purse’s eyes and mouth. (iv) The accused continued to assault Mr Purse, by manhandling and trying to put him in a headlock. (v) Mr Purse wrestled and fought back by way of self-defence. He was a considerably taller man and resisted the assault, including by “flinging” the accused about, with some success. (vi) At some stage after the two punches, whilst Mr Purse was on the floor, D came out of his bedroom, called Mr Purse “a fucking dog” and stomped with both feet heavily on his chest. (vii) During the fighting, the accused attempted to strangle Mr Purse with the cord of a pair of headphones. The attempt failed when the cord broke. (viii) A knife was introduced into the fight and Mr Purse suffered a significant penetrative wound to the abdomen. Mr Purse started wailing loudly. I adopt the description given by B of the extent and locations of blood on Mr Purse, throughout the room and on furniture, and the disarray caused in the room and to the furniture. (ix) Upon seeing blood, B ran to get C who had been outside the unit during the fighting. C ran in whereupon the accused and C, together, continued the assault on the wounded and bleeding Mr Purse. (x) The accused and C jointly assaulted Mr Purse, while lying on the floor or while on the floor but partially leaning against a wall, by “lay[ing]” into him “with their fists and their feet”. Again, I adopt B’s description of this behaviour. (xi) Whilst Mr Purse continued to wail loudly, C said “Michael, shut the fuck up and we’ll stop hurting you”. (xii) The accused and C then grappled with and held Mr Purse; one held the head and shoulders end and the other, the feet. (xiii) C told B to turn away (that is, not look) which she did for no more than 30 seconds. (xiv) When B turned back, Mr Purse had stopped making any noise and was lying on the floor. His feet were twitching but soon stopped. -- 103 of 121 -- [2024] SASC 127 Nicholson AJ 102 (xv) About five minutes later, C and the accused rolled the motionless Mr Purse in the loungeroom carpet, took him outside, placed him in the boot of C’s car and drove off relatively shortly before 4:54 am. (xvi) C and the accused returned to the Kilburn unit, still with Mr Purse’s body in the boot of C’s car, relatively shortly after 8:28 am. (xvii) In the early morning of the next day, 8 February 2019, C drove north again towards Wild Horse Plains and disposed of Mr Purse’s body at an unknown location. 235 I have found that Mr Purse was wailing loudly. It is an important, although not essential, finding. According to B, the accused had placed tape across or over Mr Purse’s mouth (but not around his head). This may have impeded the extent of or volume of any wailing. However, the extent and effectiveness of the mouth tape in this respect was not explored in evidence other than by one question and answer during the cross-examination of B.243 Q. I just want to ask you about this wailing sound that you've made mention about at some stage during the course of what was happening to Michael Purse. He still had the tape over his mouth at that time that you observed when he was making that sound, didn't he. A. Yep. The issue of whether the tape might have loosened or come off during the extensive altercation also was not explored. These are matters about which there is no evidence, other than B’s evidence set out above, and I am not to speculate. Nevertheless, I accept B’s evidence that Mr Purse was, in effect, able to wail and did so, notwithstanding the tape. I also accept B’s and A’s evidence concerning the horrible noise that sounded, according to A, like a wounded animal, which, according to B, emanated from Mr Purse soon after the stabbing. Who introduced the knife; how did the wound in the abdominal region come about? 236 The only witnesses who said they saw a knife were the accused and B. Their evidence on this topic needs to be examined in more detail. A neither saw a knife nor gave any direct evidence from which the presence of a knife or Mr Purse suffering a knife wound might be inferred.244 Evidence of B 237 B’s evidence in chief was to this effect. 243 T327. 244 Although, A did give evidence that during the shopping expedition later that day soap suitable for cleaning bloodstains was purchased T221-222, 186. -- 104 of 121 -- [2024] SASC 127 Nicholson AJ 103 (i) B’s first mention of a knife occurred when she was asked by the prosecutor about “blows” she had seen the accused inflict.245 A. There was the blood on the floor which [the accused] had ran out to the car and then when he’s come back, I didn’t see him insert the knife into Michael Purse but I did see him drop the knife with blood on it. B did not see the accused “insert the knife” but she “did see him drop the knife with blood on it”. (ii) There was blood “everywhere because it was a massive struggle”. (iii) The struggle continued after B saw the knife being dropped. (iv) When asked if she saw where the knife came from, B said.246 A. No, but, as I said, [the accused] went only out to the car really quickly and come back. He didn’t have the knife beforehand, … (v) Mr Purse started to wail, “like he was in pain”, after B saw the knife. The wailing was “pretty loud. Loud enough for [B] to run out and go get [C]”.247 238 During cross-examination, B’s evidence concerning the knife was consistent with her examination in chief and to this effect. (i) When the accused came back inside, B did not see anything in his hands; she “wasn’t looking”.248 (ii) The accused “didn’t have [the knife] before he went [outside]”. (iii) When the accused came back inside, “there was a struggle” and the accused “pulled [Mr Purse] from the floor”.249 B then gave this evidence.250 Q. Did you see a knife in his hands when you observed that he was pulling him from the ground. A. No, happened pretty quickly, happened over about a 15 second period, I reckon. But I did see blood and I did see [the accused] drop the knife. Q. I put it to you that there was no knife at any time at all that [the accused] had. A. Again, you weren’t there and I’m telling you there was a knife and [the accused] dropped it and he was bleeding. If I didn’t do it, then who the fuck did? 245 T281. 246 T282. 247 T283. 248 T333. 249 T334-335. 250 T335-336. -- 105 of 121 -- [2024] SASC 127 Nicholson AJ 104 Q. Did you see Michael Purse have a knife at any time. A. Pardon? Q. Did you see Michael Purse be in possession of a knife at any time. A. No, didn’t even have possession of his own mobile phone, let alone his wallet, apparently, did he? So, no, I didn’t see him with a knife. Q. You described the knife and, at this stage, I just want to ask you this: you can’t tell us at least if there was a stabbing where the stabbing occurred, can you. A. No, but there was blood on his stomach, on his – on, around his stomach. Q. And you can’t tell us that you saw – A. Maybe it was ketchup, I don’t know. Q. Let me finish please. You cannot tell us at all that you saw [the accused] plunge a knife into Mr Purse, can you. OBJECTION: [PROSECUTOR] OBJECTS [PROSECUTOR]: The witness has described what she can and can’t see. XXN Q. You didn’t see a knife being used by [the accused] to stab Mr Purse, did you. A. I saw from the outwards motion and [the accused] dropped the knife with blood on it. Q. But you didn’t see that knife – A. Be inserted in Michael? No. Q. Or, indeed, on how many occasions that happened. A. No. Q. Or where it exactly happened. A. No, but I saw where the blood came from. (Emphasis supplied) 239 B did not see a knife in the accused’s hands when he pulled Mr Purse from the floor but she did see the accused “drop the knife” and she did see blood “on, around [Mr Purse’s] stomach”. Further, the reference to seeing “the outwards motion” in the context of the italicised question and answer read as a whole, supports a finding that she saw the accused pull the knife out of Mr Purse prior to dropping it. -- 106 of 121 -- [2024] SASC 127 Nicholson AJ 105 Evidence of the accused 240 The accused’s evidence in chief was to this effect. (i) At the time Mr Purse was sampling the drugs he had been given, he and the accused were the only two in the loungeroom. C had gone outside.251 The accused “believed” that B was in her bedroom.252 (ii) Mr Purse was “under the influence” (inferentially of methylamphetamine) “but not very high” when he complained and lunged at the accused and hit him in the cheek with a fist at the same time.253 The accused retaliated and hit him on the chin with his second punch; a first punch had missed. These were the only two punches delivered by the accused at that time.254 (iii) Mr Purse “stumbled back a bit” and then “pulled out a knife from his waistband”;255 an old silver-bladed knife with a wooden handle. (iv) Mr Purse then “pointed [the knife] at [the accused]” (I accept that the accused was implying, in a threatening manner) and “demanded better drugs”. (v) The accused tried to tell Mr Purse to calm down, but he kept demanding better drugs, then “[the accused] proceeded to grab [Mr Purse’s wrists with both hands] and a scuffle arose”.256 (vi) By this time, Mr Purse was “heavily under the influence and highly agitated”.257 (vii) During the course of the scuffle Mr Purse “threw punches” at the accused. While the accused was holding Mr Purse’s wrists, “within 20, 30 seconds” they fell to the floor,258 but Mr Purse continued to hold the knife.259 (viii) The accused described an action of bending Mr Purse’s right hand (holding the knife) “into his elbow” in an effort to point the knife away from the accused “within a second” before they “went to the ground”.260 The accused both in chief and cross-examination provided an elaborate account of the choreography of the scuffle. If such a scuffle had occurred, 251 T464-465. 252 T463. 253 T466-467. 254 T467-468. 255 T468. 256 T470. 257 T470. This observation of “heavily under the influence” appears to be inconsistent with the accused’s earlier stated observation that Mr Purse was “not very high” at the time he was sampling the drugs. However, there is no evidence as to the amount of methylamphetamine Mr Purse smoked at the Kilburn unit (or earlier in the day) and as to how quickly it might have taken effect. 258 T470. 259 T470. 260 T471. -- 107 of 121 -- [2024] SASC 127 Nicholson AJ 106 then given the lapse of time, the fact that the accused also was a heavy consumer of drugs and the shocking and urgent nature of the asserted scuffle, I would doubt very much the reliability of the detailed choreography.261 (ix) The accused was asked “What happened to the knife” and answered, “I later realised it’s gone into him”.262 He denied ever holding or deploying a knife. (x) The accused said that he was never verbally aggressive towards Mr Purse during the scuffle and did not punch him to the head when on the ground.263 (xi) The accused said that as soon as he got up he saw the knife “in [Mr Purse’s] abdomen”.264 Mr Purse was moaning; “in pain, but not excruciating pain”. (xii) According to the accused, C then came back into the unit and they had the “fuck head” conversation. The accused was asked “Where is the knife at this stage” and he answered, “I think he’s pulled it out by then, because he’s up against the wall now, moaning”.265 (xiii) The accused said that he did not see Mr Purse physically pull the knife out of his torso and did not see where the knife was before he left after the “fuck head” conversation. 241 The cross-examination of the accused was to this effect. (i) The accused confirmed that only he and Mr Purse were in the loungeroom when the drug deal and testing took place, and repeated his account of how the scuffle broke out, the knife was introduced and Mr Purse accidentally stabbed himself.266 (ii) The cross-examiner “tested” the accused’s account in laborious detail – no-one could be expected to accurately recall the details of the choreography as asked for by the cross-examiner and given by the accused over 11 pages of transcript.267 This aspect of the accused’s account was an invention. However, the accused maintained his basic account relatively consistently with that given in examination in chief. (iii) New information provided included that: during the scuffle, Mr Purse was hitting the accused with his “other free hand”268 and the scuffle lasted up to two minutes before they fell to the floor. However, given my acceptance of the evidence of A and B and rejection of the accused’s evidence, Mr Purse’s hands were taped such that he did not have a “free hand”, and, during 261 T471, 609-620. 262 T471. 263 T472. 264 T472. 265 T474. 266 T581-582. 267 T609-620. 268 T616. -- 108 of 121 -- [2024] SASC 127 Nicholson AJ 107 evidence in chief, the accused said that the two men scuffled for 20 to 30 seconds before they fell to the floor.269 Conclusions concerning the knife 242 I am satisfied beyond reasonable doubt that Mr Purse suffered a significant knife wound to the abdominal region which caused substantial bleeding. This finding is the only rational inference from B’s evidence and is consistent with the accused’s account. Consistently with my analysis of and conclusions drawn from the evidence of the accused and B to this point, I accept B’s evidence concerning the knife incident and I reject the accused’s evidence where inconsistent with that of B. Again, this means that I am to put to one side those inconsistent aspects but still must determine whether or not the prosecution contention that the accused stabbed Mr Purse with a knife has been established beyond reasonable doubt on the basis of the evidence I do accept. In other words, I still must determine whether or not it remains reasonably possible (but consistent with the evidence of B) that: Mr Purse produced the knife; and, the wounding was unintentional and accidental from the accused’s perspective. 243 I have found that Mr Purse was bashed with the butt of a firearm less than a week before the Kilburn unit incident. I am satisfied that he also may have had a significant level of anxiety and fear that he might be physically harmed by an associate or associates of his in the illicit drug business. Mr Purse had recently manifested such a fear at the North Terrace OTR and Mr Horder gave hearsay evidence concerning various persons including F who may have harmed or threatened Mr Purse in the past and may have had a motive to harm Mr Purse. Physical violence or the threat thereof is commonplace within the illicit drug using and dealing community. This is the main way by which debts are enforced. Persons who inhabit this criminal environment often will take steps to protect themselves. For example, the accused had access to a shortened firearm. Mr Purse’s lifestyle was a dangerous one. It is conceivable that he would arm himself from time to time with a knife or other weapon if only for defensive purposes and, a fortiori, on the Crown case which I have accepted, where he “owed” money to the accused which he was not in a position, as at 7 February 2019, to pay. The text messages with the accused in the days prior to 7 February 2019 suggest that Mr Purse was making efforts to mollify the accused.270 According to A, the purpose of Mr Purse obtaining an eight-ball “on tick” from the accused that night was so that he could sell it and repay some of the money “due” to the accused.271 These factors militate towards Mr Purse having come armed with a knife. 244 However, it was a mid-summer February evening and night. The accused had worn lightweight clothing on the morning of the assault – a loose short sleeve 269 T620, 470. 270 See, for example, exhibit P7, entries 235, 239, 243, 246, 247, 251, 253-257, 276-280, 282-284, 300, 303-307, 312-313, 318. 271 T145-146. -- 109 of 121 -- [2024] SASC 127 Nicholson AJ 108 shirt and trousers.272 I infer that Mr Purse likely would have been wearing lightweight clothing, quite possibly sufficient to conceal a knife in the waistband of his pants but also such that a knife in the waistband or otherwise on his person and easily available might be exposed during violent activity. The violent wrestling between the accused and Mr Purse, including the stumbling backwards, the attempted headlock, the attempted strangulation, Mr Purse’s successful resistance, and the stomping by D, likely would have revealed the existence of a knife either to B or the accused. However, B saw nothing until she saw the accused with the knife after Mr Purse suffered the injury. Further, Mr Purse was described by A as, in effect, gentle and not aggressive and he had expressed to A, including in the Kilburn unit loungeroom, that he was not concerned about being with the accused – “we’re business partners everything’s going to be fine”.273 Finally, the seven day period within which Mr Purse was to procure money and four mobile phones for the accused had not yet expired. These factors militate against Mr Purse having come to the Kilburn unit with a knife. 245 Another consideration is that, at all times, Mr Purse’s hands and/or wrists were bound by the tape. A said his hands were taped. B said his wrists were taped like handcuffs. Either way, this would have rendered it very difficult for him to have gained access to and to have held a knife in any effective manner and, a fortiori, with tape over his eyes. According to B, when the accused was assaulting Mr Purse, he was “failing miserably”, Mr Purse was a much taller man and was “flinging” the accused around notwithstanding his bound wrists. A level of desperation in the smaller accused can be inferred from his spontaneous use of the headphones with such force around Mr Purse’s neck that they snapped. 246 If not to get a knife, why then did the accused run outside during this wrestling match? It is quite unlikely that it was to enlist the assistance of C. C came only after the knife wound had occurred and at the behest of B. Surely C would have responded earlier if the accused had asked him to do so. A counterpoint question might be, why did the accused need to run outside for a knife when, presumably, there would have been one in the kitchen? However, it cannot be assumed that a sharp knife was readily to be seen or available on a benchtop. If not, the accused would have needed to search drawers or cupboards. Whereas, if the accused had a knife in the car, it was only steps away from the ground floor Kilburn unit. 247 The lack of any apparent purpose for the accused to run outside in the middle of a wrestling match only to return straightaway at which time the knife appeared for the first time and the stabbing occurred, presents a telling coincidence. 248 According to B, she did not see a knife before the accused ran outside but after he came inside, she saw blood, heard wailing and saw the accused drop a knife with blood on it. For the accused to have dropped the knife, he must have 272 Exhibit P2, page 50. 273 T158. -- 110 of 121 -- [2024] SASC 127 Nicholson AJ 109 held it and B, during cross-examination, said that she saw “the outwards motion” prior to seeing the accused drop the knife. On the accused’s case, he must have seen the knife stuck in Mr Purse, grabbed it and pulled it out, although he gave no evidence to the effect of the latter proposition; indeed, his evidence was to the contrary, Mr Purse pulled out the knife. 249 I have rejected the accused’s account of Mr Purse lunging at the accused with a knife and the two men wrestling, with the accused attempting to point the knife away from himself until they fell with Mr Purse accidentally stabbing himself. This is not what B saw. 250 Any scenario of absolution for the accused can only be one that can reasonably be inferred from that which B did see. It is conceivable: that Mr Purse produced a knife while the accused was outside or as soon as he came back in; that the two immediately grappled with each other, with neither the accused nor B being aware of the knife; and that whilst grappling, Mr Purse accidentally stabbed himself and fell to the ground. This could account for B seeing the accused pull Mr Purse from the floor and only then seeing the accused drop the knife (after having removed it from Mr Purse’s torso) thereby becoming aware of it for the first time. There is no support for such an analysis in the evidence and it is no more than speculation. Only the last part, B seeing the accused drop a knife, has support in the evidence I have accepted. A conceivable explanation is not necessarily a reasonably possible one arising on the evidence. Furthermore, the conceivable notion just posited is quite inconsistent with the accused’s, albeit rejected, evidence. An alternative conceivable notion that Mr Purse possessed but did not reach for a knife and that as they grappled, he was stabbed by the knife still secreted in his clothing, is speculative and fanciful. 251 Having carefully considered the relevant evidence and the parties’ submissions, I am satisfied beyond reasonable doubt that the accused did run outside and obtain a knife. This is the only rational inference available on the evidentiary basis that I have accepted. On his return, he intentionally stabbed Mr Purse in the region of the abdomen. The evidence does not permit a finding as to whether Mr Purse was stabbed once or more than once. As far as the prosecution case is concerned, I can only be satisfied of the one stab wound. The notion that at some stage during the struggle, as described by B, Mr Purse produced a knife is not a reasonable possibility arising on all of the relevant direct and indirect evidence. Death of Mr Purse and cause of death 252 I am satisfied beyond reasonable doubt that Mr Purse is deceased; this is the only rational conclusion to follow from the relevant circumstantial evidence including the agreed facts adduced by the prosecution.274 I am satisfied beyond reasonable doubt, and consistent with agreed facts 39 and 40,275 that Mr Purse was 274 This evidence is summarised in the Introduction to these reasons. 275 Exhibit P1. -- 111 of 121 -- [2024] SASC 127 Nicholson AJ 110 deceased as at the time on 8 February 2019 that C disposed of his body, if not as at some time in the previous 24 hours. It is not necessary that I determine a precise time of death. 253 The accused can only be convicted of either murder or manslaughter if the circumstances are such that he is criminally responsible for an act or acts that caused, in the sense of being a substantial cause of, Mr Purse’s death. Justice Brennan in Royall v The Queen276 put the matter this way. The basic proposition relating to causation in homicide is that an accused’s conduct, whether by act or omission, must contribute significantly to the death of the victim. It need not be the sole, direct or immediate cause of the death. (Citation omitted) 254 In R v Hallett,277 Bray CJ, Bright and Mitchell JJ explained how to approach the question of causation of death. The death of the deceased is the material event. The question to be asked is whether an act or series of acts (in exceptional cases an omission or series of omissions) consciously performed by the accused is or are so connected with the event that it or they must be regarded as having a sufficiently substantial causal effect which subsisted up to the happening of the event, without being spent or without being in the eyes of the law sufficiently interrupted by some other act or event. It does not matter on the question of causation whether or not the accused after the commission of his act fails to appreciate or takes unavailing steps to avoid its probable consequences or mistakenly thinks he has taken such steps or fails to take such steps through some supervening factor unless that supervening factor so interrupts the effect of the original act as to prevent that original act from being in the eyes of the law the cause of death. 255 Establishing a substantial cause or substantial causes of death in cases such as the present, where there is no post-mortem pathology evidence (“expert medical evidence”) and there is not a single obvious unchallenged cause such as, for example, a gunshot to the head or vital organs, can be problematic. In this case, there was a single knife wound to the abdominal region which, according to the eyewitness evidence and the circumstantial evidence (the extent of the Kilburn unit clean up and disposal of contents undertaken) caused Mr Purse serious distress and bleeding. This may have been a substantial cause of death. However, Mr Purse survived the knife wound at least until the 30 second incident and, possibly, for a time after that. There were other possible substantial causes each of which may have operated independently or in conjunction with the knife wound. Possible causes of death 256 Leaving aside the requisite mental element for the moment, for the prosecution to succeed it will need to establish beyond reasonable doubt that the accused is criminally responsible for each and every reasonably possible cause of 276 (1991) 172 CLR 378 at 398. 277 [1969] SASR 141 at 149. -- 112 of 121 -- [2024] SASC 127 Nicholson AJ 111 death. In other words, I must be satisfied that there was no reasonably possible, solely operating cause for which the accused is not criminally responsible. (i) Exsanguination (“bleeding out”) resulting from the knife wound was a reasonably possible cause. I am prepared to take judicial notice of the facts that there are large and important arteries in the abdominal region of the human body, including the abdominal aorta and its various arterial branches, the partial or whole severance of which, if untreated, can lead to death by exsanguination over a relatively short period of time. In the absence of expert medical evidence, it is not possible to elevate this beyond a reasonably possible cause of the death of Mr Purse. (ii) During the 30 seconds when B looked away and either the accused or C was holding Mr Purse’s head and shoulders with the assistance of the other, it is possible, indeed highly likely, that Mr Purse’s head and neck were twisted and snapped in some way or some other completely disabling action was taken. This inference arises from C’s desire for Mr Purse to stop wailing, C’s malevolent direction to B, the very short period involved (30 seconds), B’s observations after turning back of Mr Purse’s feet twitching for a short time, and Mr Purse becoming immobile and ceasing to make any wailing or other noise. Plainly, Mr Purse was alive immediately before the 30 second incident. Even if exsanguination from the knife wound inevitably would have caused death, the 30 second incident intervened and became a possible, indeed highly probable, substantial cause of death. However, in the absence of expert medical evidence, I cannot make this finding beyond reasonable doubt. Whatever occurred during the 30 second incident and with or without any contributing effects of ongoing exsanguination, it is a reasonable possibility that Mr Purse was only rendered paralysed and/or unconscious. (iii) If the 30 second incident was not an immediate substantial cause of death, as in (ii) above, Mr Purse died some short time after by one, or more in combination, of: (a) exsanguination; (b) internal injuries from the kicking and punching assaults which occurred after the knife wound; (c) the continuing consequences of the 30 second incident; and/or (d) the act of leaving Mr Purse’s body in the boot of C’s car which ensured no medical or other assistance could intervene to prevent death from one or more, in combination, of (a), (b), or (c) or perhaps suffocation. 257 I have not yet, in this context, referred to the stomping by D and the attempted strangulation with the headphones by the accused. Whether or not a person’s act is a substantial cause of death is to be determined by a commonsense application -- 113 of 121 -- [2024] SASC 127 Nicholson AJ 112 of the facts.278 Both of these acts occurred early in the ongoing assault. Whilst the stomp and the attempted strangulation may have caused some physical damage and pain, neither had any significant effect on Mr Purse’s capacity to resist the accused by wrestling and flinging him about. 258 After and notwithstanding the stomp, it was still necessary to attempt the headphones strangulation, to stab Mr Purse in the abdominal region, to continue to lay into his head and body with punches and kicks and to perform certain unknown acts during the 30 second incident in order to subdue Mr Purse. I do not consider it to be a reasonable possibility arising on the evidence that either the stomp or the attempted strangulation constituted a substantial cause of Mr Purse’s death let alone the sole substantial cause to the exclusion of all of (i), (ii) and (iii) above. 259 I am satisfied that Mr Purse’s death was substantially caused by one or more, in combination, of the events in (i), (ii) or (iii) above to the exclusion of any other conceivable causes. The next question is whether the prosecution has proved the accused to be criminally responsible for each of these possible causes. In this respect, the prosecution must establish, inter alia, that the accused had the specific intent for murder at the time of the act or acts relied on as being the substantial cause(s) of death. Criminal liability of the accused 260 I have received and relied on a substantial amount of evidence concerning the conduct of C. C has not participated in this trial and has not been in a position to respond to the allegations against him. However, I have relied on eyewitness evidence by B of C’s conduct which occurred in the presence of the accused and to which the defence has been able to respond. The accused cannot be responsible for or liable with respect to C’s conduct except insofar as the doctrines of joint or extended joint criminal enterprise were to be invoked. 261 I have already identified all of the actions of or contributed to by the accused that constitute reasonably possible causes of death. I am satisfied beyond reasonable doubt that the accused is to be held criminally responsible for each of these actions and that in each case he had the necessary mental state for murder. Manslaughter 262 However, before developing this finding further, I should revert to the common law alternative to murder of manslaughter by an unlawful and dangerous act. 263 Exsanguination following the stab wound is the one possible cause that, on the evidence before me and my findings, raises the question of the culpability of the accused alone, that is, without any assistance from C. It is reasonably possible that Mr Purse died from exsanguination alone, that is, that whilst the other aspects 278 Royall v The Queen (1991) 172 CLR 378 at 387 (Mason CJ), 412 (Deane and Dawson JJ) and 423-425 (Toohey and Gaudron JJ). -- 114 of 121 -- [2024] SASC 127 Nicholson AJ 113 of the assault might have caused paralysis, other serious injury and/or loss of consciousness, none contributed to the death of Mr Purse. None of this can be known in the absence of expert medical evidence but the possibility I have outlined remains a reasonable one. 264 If I were not to be satisfied that, at the time the accused stabbed Mr Purse, he had the specific intent necessary for murder, he would not be guilty of murder on that or any other basis. All of the potential causes of death are only (albeit, the only) reasonably possible causes. Unless the accused had the necessary specific intent with respect to all, the prosecution will not have proved its case for murder. In this first scenario, manslaughter by unlawful and dangerous act would follow axiomatically. 265 A second scenario to consider would arise if it were to be reasonably possible that, in fact, it was Mr Purse who produced the knife during the process of being assaulted by the accused, but in the circumstances otherwise as described by B. In this scenario, the ensuing stab wound, itself, may have been accidental and unintended, as far as the accused was concerned, in which case, again, murder would not lie. However, I am also satisfied that manslaughter would follow in the second scenario for the following reasons. 266 In the second scenario,279 the accused taped Mr Purse’s hands, eyes and mouth, rendering him extremely vulnerable, and assaulted, by punching to the head, wrestling and attempting to strangle, Mr Purse. All of this conduct comprised a series of unlawful and dangerous acts. In this assumed scenario, in attempting to defend himself (unsuccessfully, as it would turn out) Mr Purse produces a knife. He would have been entitled to do so. Continuing with this hypothetical scenario, Mr Purse accidentally suffers a stab wound whilst still being assaulted by the accused. In these circumstances, any claim of self-defence by the accused would not arise and would not break the chain of causation between the accused initiating and continuing the assault which resulted in the death of Mr Purse. Even if the accused were to have become aware of the knife, self- defence would not arise. The accused could and should have broken off the assault against the taped Mr Purse. Conceptually, there would be no difference between this scenario and Mr Purse having been punched so as to fall and strike his head on the corner of a table leading to death caused by a closed head injury with the punching occurring in circumstances where no act of self-defence was called for. 267 Whilst in both of the scenarios just referred to death arises only as a reasonable possibility, it would be no answer to aver that the prosecution has not proved manslaughter beyond reasonable doubt. The two scenarios would arise as the only possible factual alternatives to a murder conviction. The failure to prove murder beyond reasonable doubt would arise only if there were these reasonable possibilities that would give rise to manslaughter. 279 I have already rejected this scenario as a matter of fact but I include it here for completeness. -- 115 of 121 -- [2024] SASC 127 Nicholson AJ 114 268 However, and in any event, I am satisfied that in the first scenario, that is, my findings of fact to this point including that the accused intentionally stabbed Mr Purse, the accused did have the required specific intent for murder. As far as the second scenario is concerned, it simply does not arise given my findings of fact to this point. I now return to my analysis of the accused’s mental state as relevant to his criminal liability for each of the only reasonably possible causes of death. The accused’s specific intent 269 I have no doubt that at the time the accused stabbed Mr Purse in the abdominal region and at all times thereafter until he left the Kilburn unit at about 9:00 am on the morning of 7 February 2019, he intended, at the least, to cause grievous, that is, really serious, bodily harm to Mr Purse. If the stabbing were to have been a substantial cause of the death of Mr Purse, the accused would thereby be guilty of murder. The accused had: bound the wrists and eyes of Mr Purse, rendering him physically vulnerable in preparation for engaging in a sustained attack; punched Mr Purse to the face; wrestled with and attempted a headlock on Mr Purse; attempted to strangle Mr Purse; but was failing “miserably” to subdue him. In these circumstances, he obtained a knife and deliberately stabbed Mr Purse in an area of his body which risked really serious harm to a number of vital organs. Whether or not he, in fact, caused such harm, he must have intended to do so in order to disable Mr Purse and bring the violent assault on him to a successful conclusion. 270 However, Mr Purse continued to struggle and to wail loudly. C arrived inside the unit soon after the stabbing and immediately joined the accused in the continuation of the assault by the two of them punching and kicking Mr Purse to his body and his head, undertaking the 30 second incident and depositing and leaving Mr Purse’s body in the boot of C’s car. Throughout this conduct, the accused’s intention continued to be, at the least, one to inflict really serious bodily harm. At the time Mr Purse’s body was placed in C’s car, to be dumped in a remote location, the accused must have intended no assistance to become available to Mr Purse and for death to ensue if it had not already come about. The role of C 271 As far as C is concerned, I am satisfied beyond reasonable doubt, on the evidence before me, that from the time he came in and entered the fray until he deposited Mr Purse’s body in his car, to be dumped in a remote location, he also intended, at the least, to cause really serious bodily harm to Mr Purse. Soon after Mr Purse’s arrival at the Kilburn unit, C demonstrated his malevolence and a foreshadowing of events to come. After Mr Purse had been punched and his wrists taped, C said to him, “You’re a bit fucked [there] aren’t you mate”. C was a trusted friend of the accused and was reliant on the accused as his drug supplier. C participated by kicking and punching the stabbed and bleeding Mr Purse to the head and body while wearing “ASICS” running shoes, by participating in the 30 second incident and by putting Mr Purse in his car boot intending to dump his body. The punches and kicks were directed to the head, stomach and chest; at least -- 116 of 121 -- [2024] SASC 127 Nicholson AJ 115 four stomps and six punches from C, “a big boy” who gave “harder” or “heavier” hits than did the accused.280 C plainly intended the 30 second incident to be life ending. Notwithstanding all of the violence to this point, C was sufficiently concerned to direct B to turn away whilst he intended that something even more horrifying and final was to occur. 272 I accept that C and the accused wanted Mr Purse to stop making wailing noises. However, a person can act with more than one intention. Both the accused and C intended to cause really serious bodily harm to Mr Purse because they wanted to and in order to stop the noise. The stabbing wound as a substantial cause of death 273 C was not involved in the stabbing of Mr Purse. I have set out the elements of murder towards the beginning of these reasons. In the event that the act of stabbing was a substantial cause of death, I would be satisfied that the accused would be guilty of murder. He will have: committed a voluntary and deliberate act causative of death (elements (i) and (ii)), intending at the time, at the least, to cause really serious bodily harm (element (iii)) and in circumstances where the killing of Mr Purse was unlawful (element (iv)). The post-stabbing acts of assault – joint and extended joint criminal enterprise 274 The fact that the accused continued to assault Mr Purse by participating with C in the kicking and punching and in the 30 second incident has been established. However, the extent of and precise nature of his participation is not clear on the evidence. It is possible that C, a man bigger than both Mr Purse and the accused, entered the fray as the primary aggressor. It is not possible to say which of the many actions caused death or who committed the fatal act or acts. 275 In these circumstances and when considering whether the accused is criminally liable for the conduct he engaged in together with C after Mr Purse had been stabbed, the doctrines of joint criminal enterprise and extended joint criminal enterprise need to be considered. 276 In Miller v The Queen,281 the plurality explained the two doctrines as follows.282 The law, as stated in McAuliffe, is that a joint criminal enterprise comes into being when two or more persons agree to commit a crime. The existence of the agreement need not be express and may be an inference from the parties’ conduct. If the crime that is the object of the enterprise is committed while the agreement remains on foot, all the parties to the agreement are equally guilty, regardless of the part that each has played in the conduct that constitutes the actus reus. Each party is also guilty of any other crime (the incidental crime) committed by a co-venturer that is within the scope of the agreement (joint criminal enterprise liability). An incidental crime is within the scope of the agreement if the parties 280 T338. 281 (2016) 259 CLR 380. 282 At [4] (French CJ, Kiefel, Bell, Nettle and Gordon JJ). -- 117 of 121 -- [2024] SASC 127 Nicholson AJ 116 contemplate its commission as a possible incident of the execution of their agreement. Moreover, a party to a joint criminal enterprise who foresees, but does not agree to, the commission of the incidental crime in the course of carrying out the agreement and who, with that awareness, continues to participate in the enterprise is liable for the incidental offence (“extended joint criminal enterprise” liability). (Footnote omitted) 277 In Mitchell v The King,283 a plurality explained as follows.284 The doctrine of joint criminal enterprise or common enterprise is based on agreement (also expressed as common purpose, design, or enterprise). Whether the agreement is expressed in words or inferred “from the parties' conduct”, each party to an agreement to commit a crime will be guilty of the agreed crime and any crime “within the scope of the agreement”. It is therefore essential to identify what acts and omissions the parties agreed upon. The agreement need not be express and may be an inference drawn from the parties' conduct, but it must be subjectively appreciated by the accused. The scope of such an agreement has therefore been expressed as involving matters that each party subjectively considered. In this respect, “it is essential to identify what the parties did agree upon and what it was that each contemplated might occur”, which requires consideration of whether each party contemplated the criminal acts “as a possible incident of the execution of their agreement”. But the jury must be satisfied that each party subjectively agreed (authorised or assented) to the conduct, including the criminal act. Hence, the “true position” for nearly two centuries has been that “if one of the [parties to the agreement] goes beyond what has been tacitly agreed as part of the common enterprise, [the other party] is not liable for the consequences of that unauthorised act”. Joint criminal enterprise is a principle of primary liability based on a form of agency. The acts of the perpetrator that are within the scope of the agreement, and therefore done with the authority of the other parties, are attributed to the other parties to the agreement. That is, “if several persons act together in pursuance of a common intent, every act done in furtherance of such intent by each of them is, in law, done by all”. It is in this sense that joint criminal enterprise is a form of primary liability: all parties are liable as principals in the first degree because those persons who do not physically perform the acts are acting in concert and have the relevant mens rea. Accordingly, the liability of each party is not derivative, but primary. Hence, all those things done “in accordance with the continuing understanding or arrangement … which are necessary to constitute the crime” are attributed to all parties to the agreement and “they are all equally guilty of the crime regardless of the part played by each in its commission”. (Footnotes omitted) 278 The elements of joint criminal enterprise, all of which must be established beyond reasonable doubt for the prosecution to succeed, are. (i) The accused entered into an agreement, arrangement or understanding with another person, in this case, C, to kill or inflict really serious bodily harm on Mr Purse; 283 (2023) 276 CLR 299. 284 At [54]-[55] (Gordon, Edelman and Steward JJ). -- 118 of 121 -- [2024] SASC 127 Nicholson AJ 117 (ii) one or more of the parties to the agreement, arrangement or understanding committed an act or acts which was or were voluntary and deliberate and which caused the death of Mr Purse; (iii) at the time of the act or acts causal of death, the party or parties who committed the act or acts intended to kill, or cause really serious bodily harm to Mr Purse; (iv) at the time of the act or acts causal of death, the accused remained a party, that is, had not withdrawn from the agreement, arrangement or understanding; and (v) the act or acts causal of the death of Mr Purse were unlawful. 279 Liability under the doctrine of extended joint criminal enterprise requires the following to be established. (i) The accused entered into an agreement, arrangement or understanding with another person, in this case, C, to commit an assault against Mr Purse (the agreed offence); (ii) the accused participated in that agreement; (iii) in the course of carrying out the agreed offence, another party, in this case, C, committed the charged offence; and (iv) the accused had foreseen or contemplated that another party, in this case, C, may commit the charged offence. 280 In the case of either doctrine, the necessary agreement, arrangement, or understanding does not need to have been planned, negotiated or discussed. It can be spontaneous and tacitly arrived at by inference from the parties’ actions. 281 Likiardopoulos v The Queen285 concerned facts with some similarities to the present case. A number of alleged offenders had participated from time to time over a period of two days in a series of assaults on the deceased. It was not established that any one alleged offender had been present throughout the whole of the violence inflicted on the deceased. It was open to conclude that death had been occasioned by the various assaults, although no particular act or acts could be identified as causal. A plurality, in the factual context before them, explained the doctrine of joint criminal enterprise in this way.286 On the principal case, the appellant was liable for the murder of the deceased under the principle of criminal responsibility variously described as joint criminal enterprise, common purpose or concert. On this analysis, it was necessary to prove that the appellant was a party to an understanding or arrangement, whether formed expressly or tacitly, with 285 (2012) 247 CLR 265. 286 (2012) 247 CLR 265 at [19] (Gummow, Hayne, Crennan, Kiefel and Bell JJ). -- 119 of 121 -- [2024] SASC 127 Nicholson AJ 118 John Likiardopoulos, Aydin and Singh, to inflict really serious injury on the deceased and that, while that arrangement was on foot, one or more of the parties to it did the acts which caused death intending thereby to do really serious injury to him. The appellant’s participation in the enterprise while possessed of the requisite intention (here, to inflict really serious injury) operates to fix him with liability for the acts of the other parties carried out in pursuance of it. On the principal case, the appellant’s liability is direct and, as his argument acknowledged, his amenability to prosecution for murder is unaffected by the Director of Public Prosecutions’ (the Director) acceptance of pleas to lesser offences from all of the other parties to the joint criminal enterprise. (Footnotes omitted) 282 The present case could be analysed as one of extended joint criminal enterprise. However, on the basis that one or more of the different acts of assault perpetrated by the accused and C together was a substantial cause of death, I would be satisfied of the accused’s liability for the murder of Mr Purse on the basis of the simpler, joint criminal enterprise doctrine. 283 I am satisfied beyond reasonable doubt on the evidence discussed already in a number of contexts that, after B went outside and spoke to C, C returned to the Kilburn unit and upon entering had or formed the intention of assisting the accused, as necessary, to deal with Mr Purse. Nothing was said, but by their actions it is to be inferred that the two spontaneously and tacitly agreed to join with each other in a common understanding or purpose that they would act in concert to silence Mr Purse by inflicting really serious bodily harm on him (element (i)). The voluntary and deliberate actions of one or both caused the death of Mr Purse (element (ii)). Throughout the period of the assaults, they each intended to inflict really serious bodily harm (element (iii)) and neither, at any time, withdrew from the implicit understanding initially arrived at (element (iv)). The actions of both plainly were unlawful (element (v)). 284 As far as extended joint criminal enterprise is concerned, on the arrival of C an agreement or understanding between the accused and C that Mr Purse was, at the least, to be physically assaulted by both is to be inferred from their conduct (element (i)). The accused participated in that agreement (element (ii)). In the course of carrying out the assault, either the accused or C or both committed an act or acts with the intention of causing really serious bodily harm to Mr Purse which act or acts caused his death (element (iii)). As far as the accused is concerned, if it was his act or acts that satisfied element (iii), ipso facto he is guilty of murder. However, if it was an act or acts of C that satisfied element (iii), the possibility that C might commit an act or acts causal of death with the intention of causing, at the least, really serious bodily harm, was in the contemplation of and foreseeable by the accused. Again, the actions of both plainly were unlawful (element (iv)). 285 In adopting the above analyses, I have not overlooked B’s evidence that, early on during the altercation, she was led to understand that the accused and C intended to take Mr Purse away in the car and to leave him somewhere to “walk it off”.287 287 T278-279, 308. -- 120 of 121 -- [2024] SASC 127 Nicholson AJ 119 This conversation occurred before the knife and subsequent incidents. This notion was not referred to by the accused in his evidence. Even if this had been the intention of the accused and C at an early time (and the evidence does not permit such a finding) it was without any reasonable doubt superseded by the time Mr Purse started to resist and the knife was produced by the accused. A single ongoing criminal act 286 The prosecution contends that the violence perpetrated on Mr Purse by the accused, initially alone but later together with C, in the Kilburn unit should be characterised as one ongoing criminal act. A continuous attack that the accused instigated, was at all times party to, and in fact, was the primary protagonist of. Viewed in that way, the accused’s act – that is the sustained violence inflicted upon [Mr] Purse – is the sole cause of death. 287 It is unnecessary that I form a concluded view as to the correctness of this submission. However, the various authorities dealing with causation as a practical commonsense issue, helpfully summarised by Peek J in R v McCarthy,288 and my finding concerning the accused’s specific intent as at the time of the stabbing and at all material times thereafter, support the conviction of murder on this simpler, more direct, basis. Conclusion 288 I find the accused, Mark-Bry Andrew Leedham, guilty of the murder of Michael Jeffery Purse. 288 [2015] SASCFC 177 at [335]-[342]. -- 121 of 121 --