MEKKI (A PSEUDONYM) v THE KING [2026] SASCA 91

On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (THE HONOURABLE JUSTICE KIMBER) SCCRM-23-018700 Appellant: MEKKI (A PSEUDONYM) Counsel: MR P DAWES - Solicitor: BTD LAWYERS Appellant: THOCRIAL AGOTH Counsel: MS J ABBEY KC WITH MR B ARMSTRONG - Solicitor: CALDICOTT AND ISAACS LAWYERS Respondent: THE KING Counsel: MR M HINTON KC WITH MS A CAIRNEY AND MR B STURM - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 17/06/2025 File No/s: SCCRM-24-036518; SCCRM-24-036375 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: 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. MEKKI (A PSEUDONYM) & AGOTH v THE KING [2026] SASCA 91 Judgment of the Court of Appeal (The Honourable Acting Chief Justice Livesey, the Honourable Justice S Doyle and the Honourable Justice David) 6 August 2026 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - COMMON PURPOSE OR JOINT CRIMINAL ENTERPRISE APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES INVOLVING MISCARRIAGE - MISDIRECTION APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON- DIRECTION - JUDGE'S SUMMING UP APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES INVOLVING MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE -- 1 of 64 -- The appellants, Mr Mekki (a pseudonym) and Mr Agoth, seek permission to appeal their convictions and sentences. Following a trial before a jury, they were convicted of murder, contrary to s 11 of the Criminal Law Consolidation Act 1935 (SA). At the time of the murder, Mekki was 17 years and Agoth was 21. By the time of sentence, Mekki was 20 years and Agoth was 24. It was necessary for Mekki to be sentenced as an adult, with the result that the usual statutory considerations applicable to sentencing youths did not apply. In the case of Mekki, a non-parole period of 26 years was imposed and, in the case of Agoth, a non- parole period of 24 years was imposed. The key issues at trial concerned whether the prosecution proved the identity of the offenders and whether the liability of Agoth had been established under the principles concerning joint enterprise or extended joint enterprise. The appeals against conviction concentrated on what were said to be defects in the summing up and directions given by the trial judge, resulting in a miscarriage of justice. The appeals against sentence addressed, in the case of Mekki, a complaint of manifest excess in a case where a youth was sentenced as an adult and, in the case of Agoth, a suggested erroneous factual finding as well as a complaint of manifest excess. Held, per the Court, granting permission to appeal but dismissing the appeals against conviction and sentence: 1. The evidence of Mekki’s attempt to fly out of Adelaide under a false name was relevant and admissible as evidence probative of a consciousness of guilt. It was classically evidence of flight which was appropriate for the jury to consider as part of their decision-making concerning the identity of the principal offender. [68]-[70] 2. Mekki’s contention that the trial judge gave undue emphasis to the fact that an aspect of the defendant’s evidence was given for the first time in re-examination must be rejected. It was open, and clearly appropriate, for the trial judge to explain what had occurred during the course of the trial in a way that could be followed by the jury, so as to assist their fact finding. [133] 3. In the circumstances of this case, directing the jury to concentrate on the evidence before them, and not to speculate about evidence which was not before them, comprised no error. It was an appropriate direction to give the jury. [156] 4. At worst, the failure to ask questions of Mading seems to have arisen from a misconception by the prosecutor about what could be asked in light of the evidence she had given. Nonetheless, it is clear that the trial judge fairly and comprehensively set out the evidence and the competing cases. It has not been shown that the direction which was given by the trial judge, when considered in light of the real issues in the case and the summing up as a whole, gave rise to any risk of miscarriage. [165]-[168] 5. The directions given by the trial judge across the issues of proof of identity and the essential elements of the affray assisted the jury to determine whether the second and primary offenders made an agreement, as well as acted on that agreement. It cannot be said that it was essential to concentrate only on the events in Sia Furler Lane, as important as they were, to the exclusion of events just before and after the affray in that lane. In the circumstances of this case, no further direction was required and there is no risk of miscarriage. [211]-[213] 6. In circumstances where the directions given by the trial judge were comprehensive and extended to all of the risks inherent in the comparison exercise undertaken by the jury, tailored to the real issues arising in the case, including a warning about the need for caution when undertaking identification by way of comparison, no further directions were required. [228] 7. Whilst the sequence of the elements of joint enterprise and extended joint enterprise in the aide-memoire given to the jury was different to the exact words used in Mitchell v The King -- 2 of 64 -- (2023) 276 CLR 299, the elements were reproduced. There is no appreciable risk that the jury was misdirected regarding the legal elements of extended joint enterprise. [239]-[243] 8. In the case of Mekki, the requirement that he be sentenced as an adult did not mean that his young age should be ignored. The principles concerning the sentencing of young adult offenders applied. [315]-[318] 9. In circumstances where there appeared to be no dispute that a confrontation was anticipated from around the time the group which included Mekki and Agoth moved from Hindley Street, it is doubtful indeed whether the further inference that a confrontation was expected on arrival in the city two or so hours previously was material. That is to say, it seems unlikely that even if that finding was not open to the sentencing judge, it was capable of influencing the exercise of sentencing discretion or the sentence ultimately imposed. [279] 10. In the case of both appellants, whilst their childhood deprivation and relative youth could be regarded as mitigatory, this was serious offending by offenders with long criminal histories. This kind of offending represented a serious threat to the safety of the community and called for lengthy sentences in which punishment and deterrence were important features. In all of these circumstances, it has not been demonstrated that the non-parole periods set by the sentencing judge are manifestly excessive. [334]-[335] Criminal Code Act 1995 (Cth) s 376.4(2); Criminal Law Consolidation Act 1935 (SA) s 11; Criminal Law (Sentencing) Act 1998 (SA) s 32A(1); Evidence Act 1929 (SA) ss 34P, 34P(2)(a); Sentencing Act 2017 (SA) ss 47(5)(b), 48(1), 48(2); Statutes Amendment (Abolition of Defence of Provocation and Related Matters) Act 2020 (SA); Statutes Amendment (Youth Sentenced as Adults) Act 2017 (SA); Young Offenders Act 1993 (SA) ss 3, 3(4) 29(4), referred to. Mitchell v The King (2023) 276 CLR 299; R v Humbles [2014] SASCFC 91; R v Singh (2024) 145 SASR 417, discussed. Alford v Magee (1952) 85 CLR 437; Azzopardi v The Queen (2011) 35 VR 43; B v The Queen (1992) 175 CLR 599; Brawn v The King (2025) 99 ALJR 872; Bristow v The Queen (2020) 137 SASR 449; Broadhurst v The Queen [1964] AC 441; Bromley v The Queen (1986) 161 CLR 315; Brooks v The Queen (2012) 36 VR 84; Bugmy v The Queen (2013) 249 CLR 571; Clayton v The Queen (2006) 81 ALJR 439; De Marchi v The King (2024) 145 SASR 210; De Virgilio v The King [2026] SASCA 16; Domican v The Queen (1992) 173 CLR 555; DPP v Lawrence (2004) 10 VR 125; DPP v SJK; DPP v GAS [2002] VSCA 131; Dyers v The Queen (2002) 210 CLR 285; Gillard v The Queen (2003) 219 CLR 1; Green v The Queen (1971) 126 CLR 28; Hallam v O’Dea (1979) 22 SASR 133; Henley v The King [2024] SASCA 52; Hinrichsen v The King (2023) 144 SASR 44; Hurt v The King (2024) 281 CLR 286; IL v The Queen (2017) 262 CLR 268; Jones v Dunkel (1959) 101 CLR 298; Mackenzie v The King [2026] SASCA 12; Macklin, Murphy and Others’ Case (1838) 2 Lewin 225; Mahmood v State of Western Australia (2008) 232 CLR 297; MC v Police (2008) 102 SASR 151; McAuliffe v The Queen (1995) 183 CLR 108; McKell v The Queen (2019) 264 CLR 307; MDP v The King (2025) 99 ALJR 969; Melbourne v The Queen (1999) 198 CLR 1; Miller v The Queen (2016) 259 CLR 380; Mundy v The King [2023] SASCA 59; Penney v The Queen (1998) 72 ALJR 1316; Perara-Cathcart v The Queen (2017) 260 CLR 595; Peterson v Western Australia [2019] WASCA 207; Price v Bevan (1974) 8 SASR 81; R v A, D (2011) 109 SASR 197; R v Abdirahman Khalif (2020) 271 CLR 265; R v B [2013] SASCFC 40; R v Beaumont (2023) 312 A Crim R 356; R v BEC (2023) 16 QR 1; R v Bennett [2004] SASC 52; R v Calliss [2026] SASCA 25; R v Carbone (No 2) (1976) 14 SASR 280; R v Ciantar (2006) 16 VR 26; R v Colquhoun [2009] SASC 138; R v Driver (2011) 111 SASR 245; R v Edwards (1993) 67 A Crim R 486; R v Hallcroft (2016) 126 SASR 415; R v Howell; Mitchell, Rigney, Carver & Tenhoopen v The King [2026] SASCA 71; R v Le [2001] SASC 28; R v Mark and Elmazovski [2006] VSCA 251; R v McGaffin (2010) 206 A Crim R 188; R v Perry (2023) 317 SASR 1; R v S, G (2011) 109 SASR 491; R v Schultz [2010] SASCFC 47; R v Singh [2019] SASCFC 51; R v Stewart (1984) 35 SASR 477; R v Webb Italia [2025] QCA 51; R v Williams [2018] SASCFC 14; Roberts v The Queen (2022) 141 SASR 73; Shepherd v The Queen (1990) 170 CLR 573; Stokes v The Queen (1960) 105 CLR 279; Teagle v The King [2023] SASCA 108; Tonej v The King [2026] SASCA 45; Yardley v Betts (1979) 22 SASR 108, considered. -- 3 of 64 -- -- 4 of 64 -- MEKKI (A PSEUDONYM) & AGOTH v THE KING [2026] SASCA 91 Court of Appeal – Criminal: Livesey ACJ, S Doyle and David JJA THE COURT: Introduction 1 The appellants, Mr Mekki (a pseudonym) and Mr Agoth, seek permission to appeal their convictions and sentences. Following a trial before a jury, they were convicted of murder,1 for which the penalty is life imprisonment, together with a mandatory minimum non-parole period of 20 years.2 2 At the time of the murder, Mekki was 17 years and Agoth was 21. By the time of sentence, Mekki was 20 years and Agoth was 24. It was necessary for Mekki to be sentenced as an adult, with the result that the usual statutory considerations applicable to sentencing children did not apply.3 In the case of Mekki, a non-parole period of 26 years was imposed and, in the case of Agoth, a non-parole period of 24 years was imposed. 3 The key issues at trial concerned whether the prosecution proved the identity of the offenders and whether the liability of Agoth had been established under the principles concerning joint enterprise or extended joint enterprise. The appeals against conviction concentrated on what were said to be defects in the summing up and directions given by the trial judge, resulting in a miscarriage of justice. The appeals against sentence addressed, in the case of Mekki, a complaint of manifest excess in a case where a youth was sentenced as an adult and, in the case of Agoth, a suggested erroneous factual finding as well as a complaint of manifest excess. 4 For the following reasons, permission to appeal should be granted, but the appeals against conviction and sentence should be dismissed. These reasons are structured as follows: 1 Criminal Law Consolidation Act 1935 (SA), s 11. 2 Sentencing Act 2017 (SA), s 47(5)(b). 3 Young Offenders Act 1993 (SA), s 29(4); see the Statutes Amendment (Youth Sentenced as Adults) Act 2017 (SA) and Statutes Amendment (Abolition of Defence of Provocation and Related Matters) Act 2020 (SA). -- 5 of 64 -- [2026] SASCA 91 The Court 2 Factual background – the cases for the parties at trial ............................................................ 2 Outline of the prosecution case .................................................................................................. 4 Outline of Mekki’s case .............................................................................................................. 7 Mekki’s grounds of appeal against conviction .......................................................................... 9 Mekki appeal ground 1: Mekki’s attempted flight ................................................................... 10 Mekki appeal ground 2: the failure to adequately direct concerning the evidence of “non- identification” by the eyewitnesses .......................................................................................... 13 Mekki appeal ground 3: Mekki’s evidence about the blue LA cap .......................................... 20 Mekki appeal ground 4: the failure to put Mekki’s case regarding the absence of certain CCTV footage from the Mantra Hotel ................................................................................................ 25 Mekki appeal ground 5: the absence of evidence from Mading about her mobile phone ....... 30 Agoth’s grounds of appeal against conviction ......................................................................... 33 Agoth appeal ground 1: whether a Shepherd direction was required ..................................... 34 Agoth appeal ground 2: the directions on identification concerning Agoth............................ 40 Agoth appeal ground 3: inadequate directions on extended joint enterprise .......................... 43 The appeals against sentence: Mekki and Agoth .................................................................... 46 Factual basis for sentence: the offending ................................................................................ 46 Agoth sentencing appeal ground 1: Agoth went into the city expecting a confrontation ........ 49 Mekki and Agoth sentence appeals: whether the sentences are manifestly excessive ............. 51 The circumstances of the offender: Mekki ............................................................................... 51 The circumstances of the offender: Agoth................................................................................ 52 The applicable sentencing provisions ...................................................................................... 53 The determination of the complaints of manifest excess .......................................................... 58 Conclusion .................................................................................................................................. 60 Factual background – the cases for the parties at trial 5 A few moments after 2.00 am on Anzac Day 2022, Mr Ngor Bol was stabbed six times. Two of the stab wounds were lethal, whether individually or together, but it could not be determined when in the sequence of six stabbings those lethal wounds were inflicted. The stabbing followed an affray between two groups of black males, apparently of African descent, after which the deceased was chased by at least two of the males through side streets in the west of the Adelaide CBD, through what is now Adelaide University and across North Terrace to its intersection with George Street. 6 There, the deceased was attacked by the principal offender, referred to at the trial as the “stabber” and, very soon after the attack commenced, a second male prevented the deceased from escaping by kicking his legs, causing him to fall to the ground. The principal offender continued attacking the deceased whilst he was on the ground, after which the second offender stomped on the deceased’s head or neck. The two offenders ran off. The attack lasted around 12 to 14 seconds. -- 6 of 64 -- [2026] SASCA 91 The Court 3 7 The evidence at the trial included footage from a number of CCTV cameras, including from cameras near the intersection of North Terrace and George Street. For a period of around two hours before the stabbing, other CCTV cameras recorded the principal offender and others with whom he was meeting in Hindley Street and nearby areas. The footage compiled from these various cameras showed that the principal offender was wearing a blue LA baseball cap, a dark jacket with white stripes around each elbow and blue shorts. 8 The prosecution case was that Mekki was the principal offender and that Agoth was the second offender. 9 The prosecution case against Mekki was that he murdered the deceased by deliberately and unlawfully stabbing him with the intention of killing him or causing him grievous bodily harm. The prosecution case against Agoth was that he was a party to a joint enterprise to commit murder, or at least to assault the deceased, foreseeing the possibility that Mekki would commit murder. That is, the prosecution’s alternative case was that Agoth was guilty of murder pursuant to the principles of extended joint enterprise. 10 Only Mekki gave evidence before the jury. He denied being the principal offender or the second offender. He said that he and others had travelled to Adelaide over the Anzac Day long weekend in order to record a music video. Ultimately two videos were recorded on Saturday and Sunday. Mekki said that he had known Agoth “basically [his] whole life” and he had also travelled to Adelaide for the long weekend.4 11 Mekki gave evidence that he could identify Agoth in various CCTV footage of the larger group of black males that included the principal and second offenders until a point just before they left Hindley Street. The implication was that he did not identify Agoth as the second offender in the footage which captured the movements of the group as it moved in and through Sia Furler Lane, where the affray occurred, and subsequently, as one of the two men who attacked the deceased on North Terrace. 12 Nonetheless, the jury was invited to compare what was depicted in the CCTV footage with other evidence, including photographs of Mekki and Agoth taken at around the time of their arrests. There was some debate at trial and on appeal about whether this process of comparison could be equated to traditional evidence of an identification made out of court, together with its associated known risks and dangers.5 4 Transcript, 1027. 5 See, for example, the discussion in Tonej v The King [2026] SASCA 45, [44]-[45], [54]-[85] (Livesey P, Bleby and B Doyle JJA). -- 7 of 64 -- [2026] SASCA 91 The Court 4 Outline of the prosecution case 13 The prosecution evidence established that on the evening on Friday, 22 April 2022, Mekki, who lived in Victoria, flew to Adelaide with three others, Mr Nouel Ragab, Mr Malual Mabior and Mr Geu Wel. It was also established that Agoth and Mr Kolang Arop flew to Adelaide that evening from Brisbane via Sydney. The flight tickets of all men were booked in their own names. The prosecution tendered photographs of Mekki in the Adelaide airport wearing a blue cap, which was a baseball cap with the letters ‘LA’ on it. 14 The prosecution evidence also established that at around 2.45 pm the following day, Saturday 23 April 2022, a person named Mr Deng Mangar booked room 219 at the Mantra Hotel for three nights, departing Tuesday, 26 April 2022. The prosecution case was that Mekki and Agoth either visited or stayed in that room. This was evidenced by the detection of their fingerprints on drinking glasses and other items during a search of the room on Monday, 25 April 2022. 15 CCTV camera footage from the ground floor of the Mantra Hotel took in the front entrance, the foyer and lifts, but no other areas. Stills from this footage showed Agoth near the lifts at 9.10 pm on Sunday, 24 April 2022, as well as coming into the Mantra Hotel at 6.03 am on Monday, 25 April 2022. Other stills showed a black male wearing a blue LA cap, a sports jacket and blue shorts exiting the lift and walking towards the front entrance at 12.50 pm on Sunday, 24 April 2022. 16 This date and time became significant because of evidence Mekki gave at trial about loaning his cap to a friend, Mabior, and then seeing it being worn by a tall black male he could not name. In evidence, Mekki denied that he was the person depicted in these photographs. It was the prosecution case that these depicted Mekki.6 17 CCTV footage from 12.20 am on Monday, 25 April 2022, showed a group of about 10 black males of African appearance walking from a carpark in Philip Street, which is to the west of Light Square in the western part of the Adelaide CBD. They moved to the Sheesha Lounge at the corner of Hindley Street and Produce Lane at around 12.30 am. The group included the male in the blue LA cap. Mekki said that the group included Ragab, Mabior and Arop. This evidence was not disputed. Cameras in and around the Sheesha Lounge recorded the group moving around the lounge, going outside and walking to other venues in Hindley Street until just after 2.00 am. 18 At 2.02 am, most of the group stood outside the Sheesha Lounge on Hindley Street. A male ran to the group and pointed back towards Morphett Street to the west. The male in the blue LA cap, Agoth, Ragab, Mabior, Arop and others ran 6 The photographs of the black male in the Mantra Hotel are relevant to appeal ground 3 of Mekki’s appeal. -- 8 of 64 -- [2026] SASCA 91 The Court 5 from Hindley Street toward Morphett Street and then into Sia Furler Lane to the west of Morphett Street, north of Hindley Street. 19 CCTV camera footage inside Sia Furler Lane recorded a confrontation between two groups: the first group which had run from Hindley Street and a smaller second group, also comprising males of African appearance including the deceased. The first group chased the second group to the end of the lane and into Register Street. The deceased and one of his group ran north on Register Street whilst other members of the second group ran in the opposite direction. 20 Once the deceased reached the northern end of Register Street, he ran west and then north through the campus of what is now Adelaide University, but which was then the University of South Australia. The deceased was pursued by the male in the blue LA cap and the second offender, as well as by Mabior. The pursuit continued west along North Terrace until the principal offender and the second offender caught up with the deceased, who was then repeatedly stabbed. 21 CCTV footage showed that the stabbing incident was violent but brief, lasting between 12 and 14 seconds. 22 The stabbing was witnessed by two young women standing at the North Terrace and George Street intersection. Ms Scale and Ms Cole were, at the time, 19 years and 18. When they gave evidence before the jury, Ms Scale was 21 and Cole was 20. On the night of the murder, they had gone out to celebrate Cole’s eighteenth birthday and it was her first night out. Both had been drinking for a number of hours. Eleven days later, on 6 May 2022, they participated in separate photographic slide identification procedures conducted by police. Neither selected Mekki or Agoth.7 23 After the murder, CCTV showed a male in a puffer jacket, whom it was alleged was Agoth, moving from Hindley Street to the carpark in Philip Street. A vehicle was driven out of the CBD and towards the northern suburbs. Other CCTV footage recorded that the male in the blue LA cap walked through various streets in the Adelaide CBD and threw an object into a locked bike storage area of the University law school. Later, a knife inside a sheath was found in the bike storage area by University staff and seized by police. 24 DNA testing located the deceased’s DNA on the blade of the knife. 25 DNA testing of the knife handle revealed a mixed DNA profile from four contributors. Two could not be identified but two matched the deceased and Mekki. Testing of the sheath revealed a mixed DNA profile from five contributors, two of whom matched the profiles of the deceased and Mekki. 26 This DNA evidence did not, of itself, prove that Mekki had handled the knife or stabbed the deceased. The DNA profile could have resulted from secondary 7 This evidence of “non-identification” is the subject of appeal ground 2 in Mekki’s conviction appeal. -- 9 of 64 -- [2026] SASCA 91 The Court 6 transfer.8 Mekki claimed at trial that the risk of secondary transfer was significant given his evidence that throughout the weekend, leading to the stabbing, the principal offender had associated with him and others of the group at the Mantra Hotel and other places. 27 The principal offender was tracked on CCTV footage moving through the University to Liverpool Street, off North Terrace, where he entered a carpark at around 2.16 am. At 2.27 am, he left the carpark and was driven away in a vehicle that had arrived in Liverpool Street. 28 Mobile telephone call charge records showed that at around 2.27 am, Mekki’s mobile phone received but did not answer two incoming phone calls from a mobile phone subscribed to Ms Aluet Mading. The evidence was that Mading and two friends, Ms Joy Tear and Ms Achol Panther, went into the Adelaide CBD on the night of Sunday, 24 April 2022. They spent time at the Sheesha Lounge before leaving in Tear’s black Mazda. Tear’s evidence was that on the way out of the city she stopped to collect a black male from a side street off North Terrace.9 She drove to Munno Para where the black male got out of the vehicle. 29 Although the prosecution alleged that it was Mekki who had been collected by Tear, Tear did not identify Mekki. She was not asked whether she knew or had met Mekki. In the course of her evidence, Mading did not describe the vehicle stopping to collect anyone, nor was she asked whether she knew or had met Mekki. The evidence from Panther was that she was asleep when the male was collected. 30 The prosecution case was that the two calls made from Mading’s phone to Mekki’s phone were concerned with collecting Mekki in Liverpool Street. Mading was never asked whether she made any calls using her mobile or, indeed whether she had her mobile with her at the time. The absence of questions on these topics was a feature of Mekki’s closing address.10 31 On Monday, 25 April 2022 at about 3.00 pm, two flight bookings were made in the names of Madjur Mayik and Agok Ring for travel from Adelaide to Melbourne on a Virgin flight departing at 5.40 pm. Mekki later gave evidence that these bookings were made by Agoth for him and Ragab. At 4.40 pm that day, bookings were made in the names of Agoth and Arop for travel from Adelaide to Melbourne on another Virgin flight departing at 6.40 pm. 32 At around 5.20 pm that day, Mekki, Agoth, Ragab and Arop arrived at the Adelaide airport and were soon arrested by police. The prosecution case included evidence that, when arrested, Mekki had a proof of age card in the name “Agok D Ring” and that he and Ragab had boarding passes, intending to fly out under false 8 As was acknowledged by the prosecution’s biologists witness, Ms Pamala Feitz. See transcript, 853-856. 9 Transcript, 502. 10 Appeal ground 5 in Mekki’s conviction appeal concerns the suggested failure by the trial judge to adequately put Mekki’s case regarding the incomplete nature of the mobile phone evidence. -- 10 of 64 -- [2026] SASCA 91 The Court 7 names. The prosecution invited the jury to find that this conduct revealed a consciousness of guilt because Mekki was the principal offender.11 33 At the time of his arrest Mekki was neither wearing nor in possession of any of the clothes worn by the principal offender, including the blue LA cap. Outline of Mekki’s case 34 Apart from his own evidence, Mekki called evidence from Professor Gale Spring, an expert in photography and photographic image analysis. 35 In the course of his evidence, Mekki denied stabbing or knowing the deceased. He said that he was not the male wearing the blue LA cap depicted in the CCTV footage on the evening of the murder. He denied having handled or ever seeing the murder weapon. 36 When Mekki was shown images of the principal offender leaving the lifts in the Mantra Hotel at 12.50 pm on Sunday, 24 April 2022 he said that it was a male he met in Adelaide that weekend and whose name he could no longer remember.12 37 Mekki said that he and six others flew to Adelaide on the evening of Friday, 22 April 2022 in order to film a music video over the long weekend. He said they all lived in Melbourne though Agoth, Majok and Arop had flown in from Brisbane. He said that he was the male depicted in CCTV footage wearing the blue LA cap on arrival at the Adelaide airport. Although the LA logo was not visible on the image tendered by the prosecution, Mekki admitted that there was an LA logo on the front of the blue cap he was wearing. 38 Mekki said that he and the others from Melbourne spent the night of Friday, 22 April at the home of Mr Deng Mangar in the northern suburbs. 39 On Saturday, 23 April 2022 Mekki said that Mangar booked room 219 at the Mantra Hotel for Mekki, Agoth, Ragab and Arop. The other males stayed elsewhere. It was Mekki’s evidence that there was a party with a large group of people from Adelaide in room 219, including Mangar and the principal offender. Much later that evening they all travelled to a carpark in the northern suburbs to shoot the music video. Mekki said that he, Agoth, Ragab and Arop then returned to the hotel that night. 40 On Sunday 24 April 2022, Mekki said that during the afternoon the males from Melbourne and Adelaide, including the principal offender whose name he could not recall, drove to another carpark where a second music video was filmed. 41 Mekki said that before this, he lent his blue LA cap to Mabior because Mabior had just been shopping and he thought that the cap matched his new outfit. The 11 The admission of this evidence is the subject of complaint in appeal ground 1 of Mekki’s conviction appeal. 12 Transcript, 1032-1033. -- 11 of 64 -- [2026] SASCA 91 The Court 8 evidence from Mekki was unclear as to whether Mabior borrowed the blue LA cap before the first video shoot on Saturday or before the second video shoot on Sunday.13 42 After the second video shoot, everyone returned to the Mantra Hotel and continued their partying. Mekki said that he noticed that Mabior was no longer wearing the blue LA cap and that the principal offender was wearing it. He said that it was not uncommon for people he knew to swap or share clothing. 43 Mekki’s evidence was that from about 11.00 pm people started leaving room 219 in stages with the intention of “chilling” at the Sheesha Lounge. Mekki said that he stayed in the room because he was feeling “hungover” and “crook”.14 44 Mekki said that before Ragab left, he borrowed Mekki’s mobile phone because his own needed to be charged. Mekki said that he was not in possession of his phone when it received two calls from Mading’s phone at 2.27 am. 45 In the early hours of Monday, 25 April 2022 one of the “Adelaide boys” came to the hotel and told Mekki that something had “popped off in the city” and a fight had broken out and people were running around.15 Later, Ragab, Arop and Mangar came back to the hotel and told Mekki that someone had been jumped in the city, knives had been brandished and police were all around. 46 Mekki said he was told that there had been multiple brawls and that someone had been knocked out on the road. He became concerned because he was on parole and it was a condition of his parole that he remain in Victoria. He was worried that if he was arrested he would be held in breach of his parole which was due to expire in three or four days. At the time, Ragab was also on parole in Victoria. 47 Mekki said that Mangar then drove Mekki, Ragab and Arop to the home of Mangar’s cousin in the northern suburbs. It was whilst travelling in the vehicle that Ragab returned Mekki’s mobile phone. When they arrived, Mangar’s cousin told them that Mabior had been arrested by police. This added to Mekki’s fears. They decided to leave Adelaide. They drove back to the Mantra Hotel so that Mekki, Ragab and Arop could collect their belongings from room 219. They arrived just before 5.00 am. While they were packing, Agoth arrived and packed as well.16 48 Mangar then drove the four men back to his cousin’s home where they remained. They saw a televised SAPOL media conference regarding the stabbing of the deceased as well as other incidents. Later that day Mangar drove them to the Findon Hotel where they remained. They were concerned about being pulled 13 The directions given by the trial judge about Mekki’s evidence, particularly the evidence he gave in re- examination, are the subject of complaint in appeal ground 3 of Mekki’s conviction appeal. 14 Transcript, 1048. 15 Transcript, 1050-1051. 16 Transcript, 1059-1061. -- 12 of 64 -- [2026] SASCA 91 The Court 9 over by police. They caught an Uber from the hotel to the Adelaide Airport, where they were arrested. 49 Professor Spring gave evidence in answer to the prosecution case that it was open to the jury to identify Mekki in the various CCTV footage as the principal offender wearing the blue LA cap. The jury was invited to do this by comparing the images in the CCTV footage against Mekki’s appearance in the photographs of his arrival at Adelaide Airport, in his arrest photographs, and his appearance in court. 50 Professor Spring and Dr Matthew Sorrell, a photographic expert called by the prosecution, gave evidence about the dangers and limitations of relying on CCTV images for comparison. Whilst Dr Sorrell was not asked to consider the particular images relied on by the prosecution, Professor Spring gave evidence criticising their quality for the purposes of making a safe and meaningful comparison.17 51 It is next convenient to address Mekki’s grounds of appeal against conviction, and the determination of those, before turning to identify and determine Agoth’s grounds of appeal. Mekki’s grounds of appeal against conviction 52 Mekki relied on the following grounds of appeal: 1. The trial Judge erred by admitting discreditable conduct evidence of the second defendant’s attempt to travel on an airline ticket in a false name and possession of an identification card in the name ‘Agok D Ring’ at Adelaide Airport on 25 April 2022. 2. The trial Judge failed to adequately direct the jury in relation to the eye-witnesses Ms Scale and Ms Cole as to the non-identification of the second defendant as the primary offender. Particulars The trial judge’s directions (SU 96-103): 2.1. failed to identify the evidence capable of supporting the accuracy of the non-identification of the second defendant as the person who stabbed the deceased. 2.2. failed to emphasise the strengths of the evidence of each witness that the second defendant was not the person each had seen stab the deceased. 2.3. failed to inform the jury that, when assessing the quality of the non-identification evidence, they could take into consideration the fact that it was supported by the second defendant’s evidence that he was not present on North Terrace at the time of the stabbing. 17 Transcript, 1428-1436, 1445-1447. -- 13 of 64 -- [2026] SASCA 91 The Court 10 2.4. unfairly undermined the reliability of the evidence of each witness as to observations of the person who stabbed the deceased, and in particular that person’s face. 3. The trial Judge failed to adequately direct as to the second defendant’s evidence regarding when he gave the blue LA baseball cap (‘the LA cap’) to Mabior Malual. Particulars The trial judge’s directions (SU 60, 91-96): 3.1. gave undue emphasis to the fact that the second defendant’s evidence that the LA cap was given to Mabior Malual on Saturday 24 April 2022, and not Sunday 25 April 2022, was given for the first time in re-examination. 3.2. failed to give proper emphasis to the fact that the second defendant was giving evidence about events which occurred more than two years prior to his trial. 4. The trial Judge failed to put, or adequately put, the second defendant’s case to the jury that, when considering whether the prosecution had proved its case against the second defendant beyond a reasonable doubt, it could consider the absence of any CCTV video footage from the Mantra Hotel between 11.30pm on 24 April and 2.30am on 25 April 2022. 5. The trial Judge failed to put, or adequately put, the second defendant’s case to the jury that, when considering whether the prosecution had proved its case against the second defendant beyond a reasonable doubt, it could consider the absence of any evidence from Aluet Mading as to whether she was in possession of her phone or whether she, or any other person, made calls from the phone subscribed to her at approximately 2.27am on 25 April 2022. 53 Appeal grounds 3, 4 and 5 were argued together as an asserted failure by the trial judge to adequately put Mekki’s case to the jury. Mekki appeal ground 1: Mekki’s attempted flight 54 Mekki contended that the trial judge erred in admitting discreditable conduct evidence about his attempt to travel back to Melbourne under a false name, together with his possession of an identification card in a false name, on 25 April 2022. 55 Before the trial, Mekki filed an application seeking the exclusion of this evidence and, in response to a request for particulars, the prosecutor said she did not intend to lead evidence of post-offence conduct to support a submission of consciousness of guilt for either defendant. During submissions on the voir dire, Mekki emphasised that the prosecution had disavowed reliance on consciousness of guilt and, in those circumstances, the airport evidence had no probative value, was prejudicial and should be excluded. 56 The prosecutor reiterated that she did not intend to rely upon the airport evidence as evidence of a consciousness of guilt, but instead as part of a circumstantial case. -- 14 of 64 -- [2026] SASCA 91 The Court 11 57 The trial judge said that he would review the authorities and rule in due course. The trial continued. Five days later, the trial judge drew the prosecutor’s attention to the decision in De Marchi v The King,18 where the Court of Appeal reiterated that evidence of evasive conduct after an alleged offence is admissible as evidence of a consciousness of guilt. The prosecutor then abandoned her disavowal and said that she relied upon the airport evidence for consciousness of guilt reasoning. 58 That was challenged by Mekki. In addition, Mekki contended that the airport evidence constituted discreditable conduct within s 34P of the Evidence Act 1929 (SA) given that flying under a false name comprised a criminal offence.19 The trial judge accepted that the evidence constituted evidence of discreditable conduct even if booking a flight under a false name was not an offence. 59 Mekki informed the court that a reason for his conduct was that he was on parole with a condition that he not leave Victoria without written permission from the Youth Parole Board, which had not been obtained. This was not disputed by the prosecution. However, the trial judge indicated that, without evidence, he would not rely upon a submission that Mekki’s concern about having breached parole influenced his decision to fly out of Adelaide under a false name. 60 Mekki argued that admitting the airport evidence was inconsistent with an earlier ruling concerning conduct by Agoth. It was an agreed fact that at 4.47 am on Monday, 25 April 2022 police stopped a black Mazda containing Tear, Mading and Agoth. The trial judge excluded evidence that when Agoth was questioned by police he gave a false name. The judge ruled that the giving of a false name did not have sufficient probative value on the question whether Agoth had been involved in the stabbing attack. The prejudicial effect of this evidence outweighed its probative value. 61 The trial judge admitted the airport evidence on the basis of consciousness of guilt reasoning, and this reflected how the evidence was ultimately deployed by the prosecution. The trial judge ruled that the evidence was admissible pursuant to s 34P(2)(a) of the Evidence Act as evidence of discreditable conduct and that the permissible use could be kept sufficiently separate and distinct from its impermissible use with appropriate directions.20 The directions that the trial judge later gave to the jury on this issue are not the subject of complaint. 62 Mekki contended before this Court that the prosector should not have been permitted to abandon her disavowal of consciousness of guilt reasoning. Mekki contended that the evidence should have been excluded or, alternatively, it was 18 De Marchi v The King (2024) 145 SASR 210, [18] (Kourakis CJ, Bleby and David JJA), following Bristow v The Queen (2020) 137 SASR 449, [230] (Kourakis CJ, with whom Nicholson and Bleby JJ agreed). 19 Criminal Code Act 1995 (Cth), s 376.4(2), punishable by imprisonment for up to 12 months. 20 Ruling of Kimber J delivered on 17 July 2024 (SCCRM-23-018700). -- 15 of 64 -- [2026] SASCA 91 The Court 12 inadmissible pursuant to s 34P(2)(a) of the Evidence Act because its prejudicial effect outweighed its probative value. 63 At the hearing of the appeal, Mekki was unable to identify any real prejudice associated with the prosecutor abandoning her disavowal of consciousness of guilt reasoning. Though it was faintly suggested that the prejudice was that this led to the need for Mekki to give evidence, that suggestion must be rejected. 64 The starting point is whether the evidence concerning Mekki’s flight was relevant and admissible. The ruling made in connection with the quite different conduct of Agoth may be put to one side. The evidence of attempted flight in the hours after Mekki and others saw news reports concerning the stabbing of the deceased is much more serious than giving a false name to police in connection with what could have been viewed as a random traffic stop. 65 It is well recognised that evidence of attempted flight by a defendant following alleged offending, sometimes described as “evasive conduct”,21 may be admissible as evidence of a consciousness of guilt. It is sufficient if the evidence enables an inference to be drawn that the defendant was acting in a manner consistent with having offended. 66 Importantly, that there may be alternative explanations for the defendant’s conduct does not prevent the admission of the evidence. The existence of alternative explanations may, however, affect the strength of the inference which should be drawn. 67 Evidence of flight is treated like other circumstantial evidence. Where it is not an indispensable step in proof of guilt it will be relevant, admissible and probative even if, on its own, it cannot support a finding of guilt. It is sufficient if the evidence has a tendency or capacity to permit an inference of consciousness of guilt to be drawn by the arbiter of fact. Whether the evidence has that tendency or capacity depends upon a consideration of the evidence as a whole.22 68 Accordingly, the evidence of Mekki’s attempt to fly out of Adelaide under a false name was relevant and admissible as evidence probative of a consciousness of guilt. Whether that inference should be drawn depended upon the jury’s assessment of the whole of the evidence, including the alternative explanation given by Mekki. That is, Mekki’s explanation that it was after the police press conference that he recognised that he was at risk of being found to have breached his parole. Whether the jury accepted that evidence was a matter for them in 21 Bristow v The Queen (2020) 137 SASR 449, [230], [232] (Kourakis CJ, with whom Nicholson and Bleby JJ agreed), followed in De Marchi v The King (2024) SASR 210, [18] (Kourakis CJ, Bleby and David JJA). 22 Brooks v The Queen (2012) 36 VR 84, [68]-[69] (Weinberg JA, with whom Bongiorno JA and Forrest AJA agreed), citing R v Ciantar (2006) 16 VR 26, [40] (Warren CJ, Chernov, Nettle, Neave and Redlich JJA). -- 16 of 64 -- [2026] SASCA 91 The Court 13 circumstances where it appears to have been a risk that Mekki was prepared to take when coming to Adelaide. 69 Similarly, that Mekki’s fellow traveller Ragab was also flying out under a false name was a matter for the jury to consider. That fact did not undermine the admissibility of the evidence concerning Mekki where the focus of the jury’s attention was on the conduct of Mekki, not Ragab, and the evidence Mekki gave about his own decision-making. 70 In the circumstances, and contrary to the submission of Mekki, the evidence did not logically lack the tendency or capacity to render Mekki’s involvement in the stabbing of the deceased “more or less probable”. It was classically evidence of flight which was appropriate for the jury to consider as part of their decision-making concerning the identity of the principal offender. The probative value of this evidence clearly outweighed any prejudice to Mekki for the purposes of s 34P(2)(a) of the Evidence Act. 71 It ought not be overlooked that no complaint was made about the s 34P directions given by the trial judge. 72 Appeal ground 1 should be dismissed. Mekki appeal ground 2: the failure to adequately direct concerning the evidence of “non-identification” by the eyewitnesses 73 On appeal, Mekki emphasised that there was no dispute that the fatal stabbing was witnessed by the prosecution eye witnesses Ms Scale and Ms Cole at an intersection that was well lit. Both witnesses testified that they saw the face of the principal offender from a distance of between one and two metres.23 74 During the photographic slide identification procedures conducted by police, each woman told a police officer that she did not recognise anyone in the photographs. 75 In evidence, Ms Scale said that she noticed an older man with very dark skin and a Sudanese appearance in front of her at the intersection.24 She said that she heard two other people across the road yelling, who then ran over and stabbed the man walking in front of her and Ms Cole. She said she saw a knife pulled out and the first man stabbed the man a few times and then both men attacked the man while he was down.25 76 She recalled that the knife was a long silver hooked knife with a black handle, and it was in the hand of the taller of the two men. As for that man, she recalled 23 Transcript, 319, Ms Scale said she saw the principal offender’s face front on from a distance of one to two metres. Transcript, 334, Ms Cole said she saw the principal offender’s face as she turned and faced him from a distance of about one metre. 24 Transcript, 306. 25 Transcript, 307. -- 17 of 64 -- [2026] SASCA 91 The Court 14 him wearing a long-sleeved jacket with red on it and he was about 6 and a half to 7 feet tall with a quite dark Sudanese appearance.26 She said that the second man was also dark with a Sudanese appearance but a bit shorter and stockier. After the stabbing, Ms Scale said that she grabbed Ms Cole and they ran behind a nearby building and called triple-zero.27 Ms Scale gave evidence of the deceased’s movements on the ground and about him speaking, asking for help. 77 When Ms Scale was asked about the photographic slide identification procedure, she said, in answer to a leading question, that she could not identify anyone. When she was asked whether she did not see the stabber in the photographs she was shown, she answered “I couldn’t identify any of the people in the photographs”.28 78 In her evidence, Ms Cole said that she heard yelling before men ran behind her and Ms Scale. They were on the other side of the road and came towards her. She described the two men she saw as quite tall, taller than average, maybe different heights.29 She said that these men ran from behind her and Ms Scale and one of them stabbed a third man who was standing there, in front of her at the lights. She said that the third man had dark skin and was taller as well. She said that one man repeatedly stabbed the third man.30 79 Ms Cole could not say how many times the third man was stabbed. She observed what she thought was some sort of hunting knife because it had a curved blade and a brown handle. She saw it taken out of the third man. Ms Cole did not remember the second man attacking the third man. She said that it was over very quickly, within about 10 seconds.31 After the two men who had attacked the third man left, the third man asked for help. Eventually the police arrived. 80 When she was asked to describe the photographic slide identification procedure, Ms Cole said that she was not able to positively identify anyone.32 81 On this appeal, Mekki pointed to the prosecutor’s closing address and the submission that neither of these eyewitnesses were able to “make a positive identification of any kind of either the stabber or the second man”. This approach was said to be erroneous because it reversed the onus of proof, assuming that Mekki and Agoth were the culprits, but the eyewitnesses were unable to identify them. 82 Rather, Mekki submitted that in circumstances where both witnesses said they saw the face of the principal offender, and told police on the night that they could identify that offender, the effect of their participation in the photographic 26 Transcript, 307. 27 Transcript, 309. 28 Transcript, 321. 29 Transcript, 328. 30 Transcript, 328. 31 Transcript, 329. 32 Transcript, 331. -- 18 of 64 -- [2026] SASCA 91 The Court 15 slide identification procedure was that they did not select either Mekki or Agoth because they believed the pictures did not depict the men they had seen. This was said to represent important evidence of “non-identification”.33 83 Mekki was critical of the conduct of the prosecutor in attacking the reliability of the evidence of non-identification. The prosecutor focused on the brief nature of the observation, that the events viewed were unexpected and that each woman had consumed some alcohol. These matters were said to explain why these witnesses could not identify anyone. 84 While Mekki accepted that there was no rule prohibiting a prosecutor from criticising the evidence of a witness called for the prosecution, he contended that the question was whether taking that course had led to a miscarriage of justice.34 85 The evidence of these eyewitnesses did not feature significantly in the final address delivered for Agoth. However, Mekki criticised the approach Agoth took because it was said to have followed the erroneous approach taken by the prosecution, involving a reversal of the onus. 86 In his closing address, Mekki acknowledged a number of features of the observations made on the night of the stabbing, such as the speed of the incident and that the women had consumed some alcohol. However, the jury were reminded that the scene was well lit and emphasis was given to the evidence of Ms Scale that the stabber was 6 feet 6 inches to 7 feet tall, whereas the agreed fact was that Mekki was 6 feet 2 inches tall. The jury was invited to consider whether it was reasonably possible that Ms Scale’s description of the offender’s height was accurate. 87 As for the identification procedures, Mekki reminded the jury of the instructions given to each woman by the police officers conducting those procedures. The jury was told that, despite the diminishing of their evidence by the prosecutor, had these two women identified Mekki or Agoth their evidence would have been compelling. 88 In his summing up, the trial judge raised a potential issue about the reliability of some aspects of the evidence of these two eyewitnesses. The trial judge told the jury that things happened quickly and unexpectedly, and the jury could consider whether it was a “confusing and confronting incident for anyone to witness in whole, or in part”. 33 Police told each witness to view the slides until they identified a person responsible, or the person responsible was not in the photographs, or they were unsure. 34 R v Mark and Elmazovski [2006] VSCA 251 (Maxwell P, with whom Vincent JA and Bongiorno AJA agreed); R v Colquhoun [2009] SASC 138, [29] (David J, with whom Vanstone and Anderson JJ agreed). -- 19 of 64 -- [2026] SASCA 91 The Court 16 89 These directions were criticised because the reliability of the evidence of these witnesses had not been raised during any cross-examination of them and neither witness had described the event as confusing. The trial judge continued:35 You will consider whether what confronted both witnesses were events that promote them absorbing important detail and being accurate in every respect or promote a risk of not absorbing important detail and giving rise to a risk of innocent error. You will ask whether the circumstances promote reliability because of their significance or give rise to a risk of unreliability. You also have, of course, the CCTV footage to help you to evaluate their evidence. If you are satisfied that their evidence conflicted in any relevant way with CCTV footage of the incident which you accept of the incident you will, of course, ask if you should prefer CCTV. Further, if the CCTV footage were to show that one or both young women were unreliable about something that they told you in their evidence, then you might bear that in mind more broadly in assessing how much they absorbed, how much detail they took in and the reliability of anything else that they told you which might be important. 90 These directions were criticised on the ground that no counsel had ever suggested that the CCTV footage should be used to establish the unreliability of the eyewitness evidence. It was suggested that this constituted a failure to adequately direct the jury because there was a failure to identify the evidence which was equally capable of supporting the accuracy of the non-identification evidence. 91 The trial judge then addressed the evidence of each woman. When addressing the evidence of Ms Scale, the judge pointed out some obvious errors in her evidence, such as whether they had mistakenly headed south up to North Terrace, as well as whether her evidence about what the deceased was wearing was accurate. These directions were criticised on the basis that the trial judge emphasised small details in circumstances where, for example, neither woman had been asked to identify the deceased or what he was wearing. 92 The trial judge then referred, incorrectly, to the evidence of Ms Scale suggesting that she made no observation of the clothing worn by the taller man, the principal offender. In fact, she had given evidence that the taller man was wearing a long-sleeved jacket which broadly corresponded with the description of the jacket worn by the principal offender wearing the blue LA cap. Mekki was also critical of the subsequent observation of the trial judge that Ms Scale “did not take in clothing” when that did not reflect her evidence. 93 As for the photographic slide identification procedure, the trial judge told the jury that Ms Scale could not identify anyone that she had seen on North Terrace and that, when evaluating that she “did not select anyone”, the jury was to bear in mind what she said in evidence about what she saw. 35 Summing up, AB 218-219. -- 20 of 64 -- [2026] SASCA 91 The Court 17 94 These directions were criticised for adopting the same erroneous, problematic approach taken by the prosecutor in closing. 95 As for Ms Cole, the trial judge again invited a comparison between the evidence of Ms Cole and the CCTV footage. The trial judge reminded the jury about the evidence of Ms Cole that she could not “positively identify anyone” when that was an answer given in response to a leading question. Mekki’s criticism was that, in fact, the evidence of Ms Cole was that she did not see the man with the knife in the images shown to her by police. 96 The trial judge invited the jury to take into account that neither eyewitness knew anyone who was involved. This was criticised on the basis that if they had known the men involved, there would have been no identification procedures, and the evidence would have been recognition evidence rather than identification evidence. To introduce this issue, it was submitted, was an irrelevant consideration, undermining the weight of the non-identification evidence. 97 On appeal, Mekki contended that the trial judge’s directions occasioned a miscarriage of justice in a number of ways. The first concerned what was said to be the material misstatement that Ms Scale did not observe the principal offender’s clothing. The second was that the trial judge failed to identify the evidence capable of supporting the accuracy of the non-identification of Mekki as the principal offender. Mekki contended that the directions given by the trial judge failed to inform the jury that, when they assessed the quality of the non-identification evidence, they could take into consideration that this was supported by Mekki’s sworn evidence that he was not present on North Terrace at the time of the offending. 98 Finally, Mekki contended that the trial judge failed to emphasise that the evidence concerning the photographic slide identification procedure amounted to evidence by both Ms Scale and Ms Cole which excluded Mekki and Agoth. This was said to have been exacerbated by the trial judge’s invitation to the jury to approach the evidence of non-identification in the problematic manner encouraged by the prosecutor during her closing. 99 These submissions should be rejected. The trial judge gave directions which identified some of the factors to consider when evaluating the reliability of the observations made by the two women. He provided a detailed summary of their evidence and neither counsel for either accused sought any further direction or redirection. 100 As for the first complaint, that Ms Scale made no observations of the taller man’s clothing, it is difficult to regard this misstatement as comprising a material error giving rise to a miscarriage of justice. In fact, the trial judge had earlier accurately described the evidence given by Ms Scale,36 telling the jury that she 36 Summing up, AB 220. -- 21 of 64 -- [2026] SASCA 91 The Court 18 described the man who stabbed the deceased as taller than the second man, wearing a long-sleeved jacket and really tall. In a case where principal reliance was placed by the prosecutor on CCTV footage and DNA evidence, and where the trial judge accurately set out the effect of the evidence about the long-sleeved jacket, the later misdescription could not realistically have affected the reasoning of the jury to a verdict of guilty in the trial that occurred.37 101 Secondly, as for the asserted failure by the trial judge to identify the evidence capable of supporting the accuracy of the non-identification of Mekki, the trial judge assisted the jury by identifying the matters to take into account when determining the reliability of the observations made, which included those matters which supported the reliability of that evidence on non-identification:38 Ms Scale said … that she could not identify anyone that she had seen in North Terrace. When evaluating that she did not select anyone, you will bear in mind, of course, what she said in evidence about what she saw. She said the area was well lit and that she had looked back before the two men arrived. You can look at the footage to gauge the extent to which she looked back. She agreed that she would have seen the face of the first man as she was close and had looked at that man but that is not all she said. 102 The trial judge had earlier reminded the jury about the evidence of Ms Scale that the stabber was really tall, and he also reminded them of the agreed fact that Mekki was 6 foot 2 inches. He then set out passages from her evidence. In this way, the jury was directed about those essential features of the evidence of Ms Scale which suggested that her non-identification was accurate and reliable, as Mekki contended. 103 As for the evidence of Ms Cole, the trial judge directed the jury that she could not identify anyone:39 Ms Cole said she had looked at separate slide shows and said she could not positively identify anyone. In evaluating the significance of that, you will bear in mind the evidence about what she saw. You can view the footage and consider whether she stayed in one place and/or, as I say, watched throughout. Ms Cole said at one point in her evidence she had turned to look at the person who was the stabber and could see his face from front-on. 104 The trial judge reminded the jury that Ms Cole’s evidence was that she “wasn’t directly taking in anything that they looked like at that point and I couldn’t remember their faces …”. The jury was also reminded that Ms Cole said on the night that she could identify the principal offender: 40 … she had said on the night that she felt she could recognise the stabber … she said she had looked at the photos and did not see the man who had the knife in either folder. As for the viewing of photos, you know that was done on 6 May, a little more than 10 days later. 37 Brawn v The King (2025) 99 ALJR 872, [10] (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ). 38 Summing up, AB 221. 39 Summing up, AB 223. 40 Summing up, AB 223. -- 22 of 64 -- [2026] SASCA 91 The Court 19 105 Again, the trial judge referred the jury to evidence that increased the likelihood that the non-identification made by Ms Cole was accurate, as Mekki contended. These directions were supplemented by the following directions:41 You will consider that it was an important incident unfolding a relatively short distance away and you will consider what they said about lighting. You will obviously consider the evidence of each witness given about what they saw and I have reminded you of key aspects of that. … The approach of Mr Millsteed [for Mekki] to the evidence of these two witnesses was very different to the approach of the other two counsel in this trial. Mr Millsteed referred to the lighting, evidence about looking back and about facing the stabber and seeing a face. He made reference to the height estimated by Ms Scale. He said that was not unimportant as his client was four to 10 inches different to what Ms Scale said. He asked, might she be correct in her estimate of height. He submitted it might be significant that neither defendant was selected. He asked you to consider what both the young ladies said on 6 May and what was said to them. 106 Drawing the attention of the jury to the important aspects of the evidence of the eyewitnesses that conflicted with the CCTV footage did not mean that the trial judge distracted the jury from their proper task. The jury was given assistance in undertaking fact finding across a range of different kinds of evidence. This case was, perhaps, unusual in that the jury had available CCTV footage which, despite significant limitations, provided some objective evidence of what had occurred. It is not reasonably arguable that the trial judge failed to identify the evidence which was capable of supporting the non-identification of Mekki. 107 As for the third complaint, the criticism that the trial judge failed to invite the jury to take into account the evidence given by Mekki is without merit. The trial judge set out the competing cases of each defendant and of the prosecution on a number of occasions, and this included a chronology of events and the evidence given by Mekki.42 This extended to directions about the onus and burden of proof, as well as an identification of the real issues in the case of each defendant. 108 In a case where it was, from the very outset, clear that the issue in Mekki’s trial was identification, and where Mekki’s case was that his evidence should have assisted the jury to entertain reasonable doubt as to his guilt, it was unnecessary to require repeated references to the evidence he gave when addressing the evidence of identification or comparison. That this was thought unnecessary given the real issues joined at the trial is demonstrated by the fact that counsel did not seek the direction that is now proposed.43 109 As for the fourth criticism, the suggested exclusion of Mekki and Agoth by Ms Scale and Ms Cole from the photographic slide identification procedures is 41 Summing up, AB 224-225. 42 See, for example, summing up, AB 180-199, 265-267. 43 Perara-Cathcart v The Queen (2017) 260 CLR 595, [60] (Kiefel, Bell and Keane JJ). -- 23 of 64 -- [2026] SASCA 91 The Court 20 likewise without merit. Having outlined the important features of the evidence, assisted the jury with undertaking fact finding and rehearsed the competing submissions of the prosecution and the defence concerning non-identification, nothing more was required. Again, the failure by experienced senior counsel to seek a further direction is telling. 110 Finally, insofar as Mekki contended that some of the submissions made on identification by the prosecution, and in consequence some of the submissions made on that topic by counsel for Agoth together with the directions given by the trial judge, reversed the onus, that contention must be rejected. There was no need for the judge to address what was described as the “problematic” submission of the prosecutor to the effect that the two women “failed to identify” the appellants. This was an apt description of their evidence. It did not convey an assumption that the appellants were the offenders. Likewise, there was no error in not describing it as positive evidence of “non-identification”. In this area, like others in the law of evidence,44 the use of categories may at times be helpful but there must be room for flexibility, especially where there is room for debate about the categories and the process of fact finding remained a matter for the jury. The quality and nature of the evidence each woman gave was fairly and accurately summarised and conveyed to the jury. 111 There can be no serious complaint about the trial judge pointing out to the jury that unexpectedly observing the murder of a man in the early hours of the morning was both confronting and confusing. That accorded with common sense and human experience. Giving a direction such as that about the eyewitness evidence entailed no error. Likewise, the observation that Ms Scale described walking south when in fact she walked north simply reflected the effect of the evidence that she gave.45 Indeed, these matters might well have been thought obvious. 112 Appeal ground 2 should be dismissed. Mekki appeal ground 3: Mekki’s evidence about the blue LA cap 113 Appeal ground 3 complained that the trial judge failed to adequately direct the jury concerning Mekki’s evidence that he gave the blue LA cap to Mabior. 114 In Alford v Magee,46 the High Court held that a trial judge was only required to direct the jury about the real issues of fact and law that arose having regard to the matters in dispute between the parties at trial. A trial judge is charged with, 44 De Virgilio v The King [2026] SASCA 16, [74] (Livesey P and Stanley JA). 45 Transcript, 306. 46 Alford v Magee (1952) 85 CLR 437. -- 24 of 64 -- [2026] SASCA 91 The Court 21 and bound to accept, responsibility for determining the real issues and directing the jury about those issues in light of the applicable law.47 115 It has been recognised that this duty in a trial judge particularly arises where a potential defence comprises more than a bare denial, or where a defendant’s explanation of individual and apparently incriminating facts should be put before the jury.48 116 In R v Carbone (No 2),49 Bray CJ explained that there were cases where strong inferences in favour of innocence arose when certain facts were accepted or inferences were drawn by a process of reasoning from a combination of circumstances. The Chief Justice said that these may not be readily apparent to an untrained mind, and a failure by the trial judge to refer to them may, in consequence, amount to a misdirection.50 117 In Melbourne v The Queen, Hayne J explained:51 It is trite to observe that the jury, not the judge, are the sole judges of questions of fact. But that does not mean that a trial judge can leave all questions of fact to the jury without giving them any directions. The trial judge in a criminal trial must instruct the jury about some matters that affect how they set about finding the facts. Thus in some cases the judge must warn the jury of dangers of which they must beware when they are considering the facts. Directions about the dangers of identification evidence or about accepting uncorroborated evidence in some circumstances provide ready examples … The warnings about factual issues that I have mentioned are given to the jury not just because they relate to one or more of the issues in the case but because, if they are not given, the jury may omit consideration of important matters (of which they may be unaware) and wrongly conclude that guilt has been demonstrated beyond reasonable doubt. (Citations omitted.) 118 As earlier mentioned, Mekki’s evidence about the CCTV images of the male wearing a blue LA cap walking out of the lifts in the Mantra Hotel at 12.50 pm on Sunday, 24 April 2022 was that this showed one of the Adelaide men that he had met that weekend. He said that before attending the second video shoot on Sunday, he lent his blue LA cap to Mabior because Mabior had bought an outfit that Mabior believed matched the cap. However, Mekki said that when he returned to the Mantra Hotel after the second video shoot, the unnamed Adelaide man was wearing the blue LA cap (depicted in Exhibit P7). 47 Alford v Magee (1952) 85 CLR 437, 466 (Dixon, Williams, Webb, Fullagar and Kitto JJ). See also Hinrichsen v The King (2023) 144 SASR 44, [56]-[60] (Livesey P, in dissent), [368] (Lovell and S Doyle JJA). 48 R v Carbone (No 2) (1976) 14 SASR 280, 286 (Bray CJ); Hinrichsen v The King (2023) 144 SASR 44, [54]-[63], [75]-[85] (Livesey P, in dissent). 49 R v Carbone (No 2) (1976) 14 SASR 280. 50 R v Carbone (No 2) (1976) 14 SASR 280, 286 (Bray CJ). See also Bromley v The Queen (1986) 161 CLR 315, 319 (Gibbs CJ, with whom Mason, Wilson and Dawson JJ agreed), 325 (Brennan J); R v BEC (2023) 16 QR 1, [63]-[64] (Livesey AJA, with whom Callaghan J agreed); Tonej v The King [2026] SASCA, [84] (Livesey P, Stanley and B Doyle JJA). 51 Melbourne v The Queen (1999) 198 CLR 1, [144] (Hayne J). -- 25 of 64 -- [2026] SASCA 91 The Court 22 119 If Mekki’s evidence on this topic was to be accepted, it needed to be demonstrated that he had given the blue LA cap to Mabior well before 12.50 pm on Sunday, 24 April 2022. However, under cross-examination, Mekki said that he gave the blue LA cap to Mabior on Sunday afternoon, and he saw him with it at the Sunday night music video shoot.52 This evidence suggested that Mekki had given Mabior the cap before the Sunday music video shoot rather than the Saturday music video shoot. 120 During the course of his cross-examination, Mekki was shown CCTV footage from a shopping trip made on Saturday, 23 April 2022 at 4.00 pm. He agreed that Mabior was in the group that went shopping. A receipt found by police inside room 219 at the Mantra Hotel showed that items were purchased from a shop called “Foot Locker”. Mekki identified Mabior as one of the people at Foot Locker. Mekki conceded that this footage was recorded on the Saturday, when he believed the shopping had occurred on the Sunday. 121 In re-examination, Mekki was taken back to the CCTV footage from the Foot Locker shopping trip. He said that it was possible he was mistaken about the shopping trip occurring on the Sunday. The implication was that it may have occurred on the Saturday, and there had been time for the cap to be loaned to Mabior, and then to the unnamed Adelaide man well before the murder. 122 In the course of his summing up, the trial judge explained features of Mekki’s evidence on this issue to the jury:53 … Images 1 and 2 in P7 are, of course, at a time before Mr Mekki said in examination-in-chief and in cross-examination that he had lent his hat to Mr [Mabior Malual]. As you know, Mr Mekki attached the lending of that hat to being after Mr [Mabior Malual] had gone shopping. The prosecution case is that Mr Mekki has not told the truth about lending the hat at any time. The prosecution says that Mr Mekki had the hat at the time of the stabbing of course. Mr Mekki says that he’s told the truth and that although he said Mr [Mabior Malual] borrowed the cap on the Sunday evening or night, and said that on more than one occasion in examination-in-chief and cross-examination, having looked at the footage he said at that time, in re-examination, that he could have been mistaken when he had said it was on the Sunday. … When first asked questions by Mr Millsteed, Mr Mekki placed the borrowing of the hat by Mr [Mabior Malual] on the Sunday evening. He did so very clearly, you might think. … On the Sunday Mr Mekki said, in examination-in-chief and in cross-examination, that after he came back into the city and he mentioned being out with the Adelaide boys, that Mr [Mabior Malual] was lent the bluecap after 5 p.m. on that Sunday. … 52 Transcript, 1146-1148. 53 Summing up, AB 213-216. -- 26 of 64 -- [2026] SASCA 91 The Court 23 Mr Mekki gave further detail in cross-examination about what at this point he clearly placed on the Sunday night. He gave evidence in cross-examination about seeing Mr [Malual Mabior] with it at the second video shoot on the Sunday. He said he saw Mr [Malual Mabior] with the cap ‘With him, in his hand, in the car, on his lap’, he said. So, was that evidence given in a mistaken belief about the day or was it something that never happened? They are the competing submissions. … In re-examination, Mr Mekki said for the first time that Mr [Malual Mabior] borrowing the cap could have been on the Saturday. 123 On this appeal, Mekki contended that the trial judge gave “strong and repeated emphasis” to Mekki’s evidence about giving his blue LA cap on Sunday rather than Saturday. He suggested that the trial judge’s summing up was “significantly more persuasive” than the prosecutor’s final address. It was contended that the jury were left with the impression that they should give significantly less weight to Mekki’s evidence about giving the cap on Saturday because that evidence was given for the first time in re-examination. 124 Whilst Mekki accepted that the time at which evidence is given can affect its weight, that was a matter for the jury and not the trial judge. And, though the trial judge told the jury on more than one occasion that the facts were a matter for them, the “inescapable effect” of the summing up was “a devastating attack” on Mekki’s evidence. 125 Finally, Mekki complained that the trial judge gave no directions whatsoever to the jury about the fact that Mekki was giving evidence of events which had occurred more than two years before, trying to relate what was described as a “quite innocuous event”, being the giving of a cap to a friend. The jury were never reminded that Mekki could easily have been mistaken about that kind of matter, particularly if he was innocent. 126 A contrast was drawn with the approach taken by the trial judge toward other witnesses, about whom the trial judge said that the passage of time can affect memory and reliability without affecting credibility. These kinds of directions were given, for example, about the eyewitnesses Ms Scale and Ms Cole. It was suggested that because this evidence was important to the forensic contest at trial, the earlier general directions given to the jury about assessing reliability were not sufficient. 127 In B v The Queen, Brennan J described the broad discretion a trial judge has when commenting on the facts:54 A trial judge has a broad discretion in commenting on the facts and in choosing the strength of the language employed in commenting on the facts, but the comment must stop short of 54 B v The Queen (1992) 175 CLR 599, 605 (Brennan J). -- 27 of 64 -- [2026] SASCA 91 The Court 24 over-awing the jury.55 It must exhibit a judicial balance56 so that the jury is not deprived “of an adequate opportunity of understanding and giving effect to the defence and the matters relied upon in support of the defence”.57 128 These observations were cited with approval by a majority in R v Abdiralmam-Khalif,58 when considering whether a direction given by a trial judge concerning the facts created any risk of imbalance by depriving the jury of an adequate opportunity of understanding and giving effect to the defence, together with the matters relied upon in support of the defence. Moreover, it is necessary to consider the context in which the discretion to comment is exercised, associated with the need for “judicial circumspection”:59 A trial judge’s “broad discretion” to comment on the facts of the case in a criminal trial is an aspect of the power by which a trial judge discharges the fundamental task of ensuring a fair trial of the accused. The discretion is to be exercised judicially as part of ensuring that the facts of the case are put “accurately and fairly” to the jury. It is not exercisable, at large, independently of the fundamental task described above. A fortiori, the trial judge’s summing-up is not an occasion to address the jury in terms apt to add to the force of the case for the prosecution or the accused so as to sway the jury to either view. For that reason, as the plurality in RPS stated, judicial circumspection is required in the exercise of the discretion to comment. (Citations omitted.) 129 In this case, the comment which is criticised was really a statement of fact. Namely, that certain evidence was not given by Mekki until it was first given in re-examination. As has been seen, that comment followed a careful recitation of the accused’s evidence, including the number of times he described the shopping trip occurring on Sunday. To this the trial judge added directions about the competing submissions of the parties, together with the direction that what the jury made of the evidence remained a matter for them.60 130 When evaluating this ground it is, of course, relevant that no complaint was made by senior counsel for Mekki at the trial. No request was made for the kind of direction now sought. 131 It may be accepted that criticisms of directions and comments made by a trial judge in the course of a long summing up will often depend upon matters of degree and emphasis. These include the number of times comments were made as well as the tone and language with which they were made. Inevitably, this Court is denied the atmosphere of the trial and, to an extent, the perspective of the litigants, the jury and the trial judge about what were the real issues arising in the course of it. In consequence there is, of course, a danger in highlighting isolated passages 55 Broadhurst v The Queen [1964] AC 441, 464. 56 Green v The Queen (1971) 126 CLR 28, 34. 57 Stokes v The Queen (1960) 105 CLR 279, 284. 58 R v Abdirahman-Khalif (2020) 271 CLR 265, [81] (Bell, Keane, Nettle and Gordon JJ). 59 McKell v The Queen (2019) 264 CLR 307, [3] (Bell, Keane, Gordon and Edelman JJ). 60 Summing up, AB 218, 340. -- 28 of 64 -- [2026] SASCA 91 The Court 25 in a summing up and attributing to them a significance which was never suggested during the course of the trial.61 132 In this trial, what happened with the blue LA baseball cap before the murder was a matter of some significance. Mekki effectively conceded in the course of his evidence that the cap that he was wearing when he arrived in Adelaide was being worn by the principal offender at the time of the murder. In those circumstances it was necessary for the trial judge to carefully and dispassionately track through the evidence on the topic, together with the competing submissions of the parties about it. At no stage did the trial judge cross the line by making an “impermissible expression of an opinion on the determination of a disputed question of fact”.62 He did not descend into inappropriate commentary about his view of the evidence. 133 Mekki’s contention that the trial judge gave undue emphasis to the fact that an aspect of the defendant’s evidence was given for the first time in re-examination must be rejected. To the extent that the judge’s summary of the evolution of Mr Mekki’s evidence on this topic carried an implication that it might warrant attention, this followed from the evidence that was given rather than any inappropriate comment or statement by the judge. It was open, and clearly appropriate, for the trial judge to explain what had occurred during the course of the trial in a way that could be followed by the jury, so as to assist their fact finding. The strength of the language was not inappropriate. It was characterised by balance and moderation. The issue of fact which was outlined remained a matter for the jury to determine. 134 This appeal ground should be dismissed. Mekki appeal ground 4: the failure to put Mekki’s case regarding the absence of certain CCTV footage from the Mantra Hotel 135 It was agreed at the trial that, in the course of their investigations, police obtained CCTV footage from the Mantra Hotel covering the period of Sunday, 24 April 2022 to Monday, 25 April 2022. That is to say, footage covering the period before, during and after the murder in the early hours of Anzac Day. 136 Under this appeal ground, Mekki complained the prosecution chose not to tender all of the footage and play it. Mekki contended that this occurred for “reasons unknown to the defence”. Mekki contrasted the tender by the prosecution of a photographic still from that footage showing Agoth near the Mantra Hotel lifts at 9.10 pm on Sunday, 24 April 2022 as well as arriving at the Mantra Hotel at 6.03 am on Monday, 25 April 2022. As well, Mekki relied on the tender by the prosecution of an image from that CCTV footage of a male wearing the blue LA 61 Roberts v The Queen (2022) 141 SASR 73, [6]-[12] (Livesey P, agreeing with S Doyle JA), citing Green v The Queen (1971) 126 CLR 28, 34 (Barwick CJ, McTiernan and Owen JJ); B v The Queen (1992) 175 CLR 599, 606 (Brennan J); McKell v The Queen (2019) 264 CLR 307, [39] (Bell, Keane, Gordon and Edelman JJ). 62 McKell v The Queen (2019) 264 CLR 307, [55] (Bell, Keane, Gordon and Edelman JJ). -- 29 of 64 -- [2026] SASCA 91 The Court 26 cap exiting the lift at 12.50 pm on Sunday, 4 April 2022, which the prosecution claimed depicted Mekki. 137 Before this Court, these contentions were not developed as a complaint about the absence of a Jones v Dunkel direction based on the prosecution’s failure to lead evidence which was available to it.63 That is unsurprising in circumstances where it was also agreed that disclosure of the CCTV footage had been made to the defence and was available to all parties. 138 Indeed, there was room to question the significance of the CCTV footage in circumstances where Mekki gave evidence that during the course of his stay at the Mantra Hotel the fire escape was used when coming and going from the hotel. There was no CCTV footage covering the fire escape.64 139 Nonetheless, the failure by the prosecution to tender the Mantra Hotel CCTV footage was the subject of some attention at the trial. During the closing address for Mekki, senior counsel told the jury:65 Well, ladies and gentlemen, what is extraordinary about this case, what is really extraordinary is the absence of any CCTV evidence from the Mantra Hotel for that night. A critical night. The night of Mr Bol’s death. … Ladies and gentlemen, why is there no footage for that critical period between 11.30 p.m. and 2.30 a.m. the following day? … It’s not as though the prosecution have failed to appreciate the significance of the Mantra that weekend. They have led evidence that Deng Mangar booked the room. They have tendered images of [the male wearing the blue LA cap], the African women and Agoth being at the hotel. They have led evidence of the police searching the apartment on the Monday and locating fingerprints of Mr Agoth, of Mr Mekki, and of other unknown persons. … So the prosecution obviously knew the Mantra was an important aspect of the case. But in relation to the evidence that would really help you, the CCTV footage from that camera for that critical period, they have not produced anything. They have given you zero on that important time frame, in that important time frame. And it’s an agreed fact, Exhibit P59 Item 1, closed circuit footage for Sunday, 24 April 2022 and Monday, 25 April 2022 was provided to police from the following locations: location G, Mantra Hotel. Ladies and gentlemen, the prosecution ask you to convict my client. They ask you to find him guilty of murder. They ridicule his case. They assert he’s a brazen liar. Ladies and gentlemen, is he? You are entitled to take into account this grossly deficient aspect of the police case, the absence of the Mantra material and say that is not good enough. This is a murder trial. You can ask yourselves how can we find this young man guilty of murder when there is no footage at this critical time? How can we find and why should you find that they have proven their case beyond reasonable doubt where they have not chosen to 63 Jones v Dunkel (1959) 101 CLR 298. 64 Transcript, 1036-1037. 65 Transcript, 1656-1658. -- 30 of 64 -- [2026] SASCA 91 The Court 27 lead evidence that might confirm, might confirm or might deny their case? That might show or support my client’s evidence that he did not depart that apartment during that period? Well, ladies and gentlemen, in my submission, that is a very important matter. 140 The only direction given by the trial judge on this topic was as follows:66 Mr Millsteed said, among other things, there was no footage from the Mantra in certain periods. Whether you think that is significant is for you, but ultimately, ladies and gentlemen, you must always concentrate on evidence that you do have and not evidence you might have had. 141 Subsequently, the trial judge was asked to repeat in greater detail the submissions made on behalf of Mekki on this topic. The trial judge was also asked to direct the jury regarding the use they could make of the absence of the Mantra Hotel CCTV footage in circumstances where it was in the possession of prosecuting authorities and not led. There was an argument about that request. Whilst initially receptive, the trial judge ultimately said nothing more to the jury on the topic. 142 Before this Court, Mekki said that the refusal to direct the jury as requested produced two errors. The first was that what the prosecutor had correctly described as very forceful closing submissions were effectively treated as unmeritorious. Mekki contrasted the amount of time spent by the trial judge on other issues. 143 Secondly, Mekki contended that the judge misdirected the jury by directing them to concentrate on the evidence that they did have and not on the evidence that they did not have. It was contended that this direction had the effect of diminishing, if not removing, the “valid and forceful submissions” of Mekki’s counsel. It was contended that this direction was explained by the comments later made by the trial judge to Mekki’s counsel, in the absence of the jury, about whether it had been open to defence counsel to apply or tender the Mantra Hotel CCTV footage. Mekki complained that this reflected an approach which reversed the onus of proof. 144 Before this Court, the Director of Public Prosecutions (SA) contended that, before Mekki gave evidence, there was room for doubt about the significance of the Mantra Hotel CCTV footage. The still photographs which were tendered depicted what the prosecution contended was Mekki wearing the blue LA cap exiting the lobby at about 12.50 pm on Sunday, 24 April 2022 – 13 hours before the murder – and later that evening, just before midnight when getting out of a vehicle. 145 In contrast to the prosecution case, Mekki’s evidence was that he was not depicted in these photographs because he stayed behind at the Mantra Hotel that night and he did not go to the Sheesha Lounge. The implication was that this 66 Summing up, AB 144. -- 31 of 64 -- [2026] SASCA 91 The Court 28 evidence may have brought the CCTV footage into focus, explaining why it was not led as part of the prosecution case. 146 Despite the implication in the submissions made by counsel for Mekki in closing, if one contrasts the cases of the parties the Mantra Hotel CCTV footage covering the ground floor area would, with one exception, have been generally irrelevant. On the prosecution case, that footage was not relevant because Mekki had left the hotel and was the principal offender. On the defence case, the footage was not relevant because Mekki stayed in the hotel. Indeed, on his own evidence he might have used the fire escape which was not covered by CCTV cameras. 147 The exception is this. In the course of his evidence, Mekki said that at about 2.30 am he received a message on a “group chat” on Snapchat telling him that someone was coming to the hotel. He said that he grabbed his jacket and swipe key and went down the elevator. He said he met a male in the lobby who was tall, with black clothing, a camo-style hat and lighter skin. Mekki identified him as one of the males in one of the images. He said he first met him at the first video shoot on Saturday night. It was this male who came up to the room and said to Mekki “something has popped off in the city” and “a fight has broken out and people are running around”. 67 148 Whilst the Director accepted that CCTV footage of the Mantra Lobby area may have been relevant on this evidence, he submitted that this occurred after the murder, indeed, a sufficient time after the murder to enable Mekki to return to the Mantra by the fire escape. 149 The Director’s submission that the CCTV footage was not relevant because Mekki had time to return to the Mantra Hotel must be rejected. It formed no part of the prosecution case that Mekki returned to the Mantra Hotel immediately following the stabbing. Rather, and as will be addressed in connection with the next appeal ground, the prosecution case was that after the murder Mekki was collected from Liverpool Street and travelled north in a car being driven by Tear. Mading was a passenger in that car. Indeed, the CCTV footage may well have been relevant on the prosecution case to rebut the defence case that there was any meeting at 2.30 am. 150 In truth, it is not necessary to speculate about what might have been seen on the Mantra CCTV footage at about 2.30 am. Where the entire CCTV footage had been disclosed well before the trial on a hard drive, together with spreadsheets containing police summaries of the CCTV footage, the issue did not go anywhere. For example, there is no scope to criticise the police investigation.68 The fact is, neither side deployed the footage of events in the foyer at about 2.30 am even 67 Transcript, 1050-1051. 68 Penney v The Queen (1998) 72 ALJR 1316, [18] (Callinan J, with whom McHugh, Gummow, Kirby and Hayne JJ agreed), cited in R v S, G (2011) 109 SASR 491, [59] (Peek J, with whom Doyle CJ and White J agreed). -- 32 of 64 -- [2026] SASCA 91 The Court 29 though Mekki’s counsel made extensive submissions on that topic in his final address to the jury. 151 In circumstances where Mekki deployed the Foot Locker footage in order to support one aspect of his case, it was evident that his counsel made a considered forensic decision not to deploy the CCTV footage from the Mantra Hotel foyer. It was this fact which was pointed out to counsel by the trial judge when counsel was seeking the directions which were ultimately not given.69 152 This complaint should be rejected. As mentioned, no Jones v Dunkel direction was sought by the defence at trial nor, indeed, on appeal before this Court. Before the trial judge, senior counsel for Mekki expressly disavowed seeking that kind of direction.70 153 An analogy may be drawn with a case where the prosecution does not call a witness. Where the prosecution has elected not to lead evidence, a jury is generally directed not to speculate about that evidence, including about what it might have shown:71 … as a general rule, a trial judge should not direct the jury in a criminal trial that the prosecution would be expected to have called persons to give evidence other than those it did call as witnesses. It follows that, as a general rule, the judge should not direct the jury that they are entitled to infer that the evidence of those who were not called would not have assisted the prosecution. A direction not to speculate about what the person might have said should be given. Again, exceptions to these general rules will be rare and will arise only in cases where it is shown that the prosecution’s failure to call the person in question was in breach of the prosecution’s duty to call all material witnesses. … As was held in R v Apostilides19, it is for the prosecution to decide what evidence it will adduce at trial. The trial judge may, but is not obliged to, question the prosecution in order to discover its reasons for declining to call a particular person, but the trial judge is not called upon to adjudicate the sufficiency of the reasons that the prosecution offers. 154 In Dyers v The Queen, Callinan J took a similar approach:72 In almost all cases a trial judge should say nothing about an absent material witness whom an accused might supposedly have called. At most, a trial judge might in some circumstances have occasion to say that the jury should act on the evidence, and only the evidence that has been called. As, save for exceptional cases, the Crown Prosecutor may not address or comment on the non-attendance of witnesses for the defence, the reason, and therefore the occasion, for a trial judge to comment, should also be very rare. 69 Summing up, AB 288-295. 70 Summing up, AB 294. 71 Dyers v The Queen (2002) 210 CLR 285, [6], [17] (Gaudron and Hayne JJ). 72 Dyers v The Queen (2002) 210 CLR 285, [123] (Callinan J). -- 33 of 64 -- [2026] SASCA 91 The Court 30 155 The desirability of directing the jury to concentrate on the evidence before them, and not speculate about evidence which is not before them, nor why it is not before them, has been reiterated recently.73 156 This is a case where it was not suggested that the prosecution was under any duty to lead this evidence, nor that an adverse inference should be drawn from failing to do so. On one view, Mekki simply wanted to have the judge emphasise his complaint about the prosecution’s failure to lead the Mantra Hotel CCTV footage where he had decided not to do so. In the circumstances of this case, directing the jury to concentrate on the evidence before them, and not to speculate about evidence which was not before them, comprised no error. It was an appropriate direction to give the jury. 157 In the circumstances, this appeal ground should be dismissed. Mekki appeal ground 5: the absence of evidence from Mading about her mobile phone 158 This ground concerned what the prosecution contended were the circumstances in which Mekki fled the city following the murder. It will be recalled that there was evidence suggesting that a black male had been collected in a Mazda from Liverpool Street in the city and that Mading was in that car. The prosecution relied on two phone calls made from a phone subscribed to Mading to Mekki’s phone at 2.27 am on 25 April 2022. 159 Before this Court, Mekki conceded that Mading may have been a difficult and reluctant witness. However, she was not declared an adverse witness.74 There was, accordingly, no reason for the failure of the prosecutor to ask her questions about whether she made the phone calls to Mekki, and the purpose for those calls at that time following the murder. 160 It was contended by Mekki that the absence of this evidence was made an important feature of Mekki’s final address to the jury.75 In that context, the directions given by the trial judge were criticised. After setting out the evidence in some detail, the trial judge directed the jury as follows:76 Neither of the calls that I have just mentioned is answered. The evidence is that Ms Tear’s car, the one at least that she had in town at that point, drives to the northern suburbs. The evidence is that whomever was collected in the city in Liverpool Street got out in the northern suburbs and was not seen again by any of the three women who gave evidence. … 73 R v Webb-Italia [2025] QCA 51, [31]-[34] (Bowskill CJ, Brown JA and Williams J), citing Mahmood v State of Western Australia (2008) 232 CLR 297, [27] (Gleeson CJ, Gummow, Kirby and Kiefel JJ). 74 Cf Price v Bevan (1974) 8 SASR 81 (Wells J). 75 Transcript, 1650-1652. 76 Summing up, AB 193, 237-238. -- 34 of 64 -- [2026] SASCA 91 The Court 31 I have mentioned the evidence that Ms Mading was in the car and the phone evidence about two calls to Mr Mekki’s phone from a phone … subscribed to her at 2.27 and 2.28 [a.m.]. It is for you to say whether that informs whether there was someone in that car who tried to call the phone of Mr Mekki and informs whether Mr Mekki was the person waiting. On the prosecution case the making of those calls at that time is important. The prosecution says the timing corresponds with the collection of a person by the car being driven by Ms Tear. The prosecution says it corresponds with the footage from Liverpool Street and that you should conclude that the person collected is the same person who had just thrown away the knife at about 2.15 a.m. There is no dispute of course that the stabber is the person collected. The prosecution says that calls at that time to the mobile phone of Mr Mekki is not a coincidence and the prosecution says that the phone owned by Mr Mekki was not with Mr Ragab but with the stabber and that the phone was rung because Mr Mekki was the person picked up. The prosecution says the calls fit with its case and, of course, that case being Mr Mekki is the stabber. The position of Mr Mekki is, of course, completely different. He told you that he was not the person collected in Liverpool Street and he told you that he was back at the Mantra Hotel. He said his phone had been given to Mr Ragab shortly before he and the others left the Mantra Hotel because Mr Ragab had some difficulty with data. I have reminded you of the evidence of Mr Ragab apparently handling two devices. Mr Millsteed asked you to look at the footage to consider whether you can see a phone light up at the time of the two calls. He suggested the calls at the times set out in the relevant exhibit might not have been to a phone held by a person in the blue cap. 161 Subsequently, counsel for Mekki asked the trial judge to give a further direction to the jury. He asked the trial judge to direct the jury about Mekki’s case that the jury should consider the absence of any evidence from Mading about whether she was in possession of her mobile phone, or made calls from her mobile phone, at 2.27 am on 25 April 2022. 162 The response of the prosecutor was that questions could not have been asked of Mading on this topic because she had not given any evidence about stopping in town at all. In response, the trial judge told the prosecutor that she could have asked Mading whether she had her phone with her. The trial judge appeared to agree with the need for the jury to be directed about the matters raised by counsel for Mekki. However, the direction in fact given was as follows:77 Ladies and gentlemen, I have just been asked before I move forward to remind you of a couple of things. I have been asked to remind you, because there has been focus on the phone calls at 2.27 [a.m.], that Ms Mading was not asked, and therefore did not give evidence about, whether she had her phone with her … 163 This direction was criticised because it was not in the terms sought. Before this Court, it was contended that the direction did not distinguish between the role 77 Summing up, AB 252. -- 35 of 64 -- [2026] SASCA 91 The Court 32 of the prosecutor and the role of defence counsel, particularly where there was no obligation on Mekki or Agoth to ask any questions of Mading. 164 In addition, the direction was criticised because the jury was given no assistance as to how they could use the evidence or the failure to ask questions. In particular, it was contended that the jury should have been directed about whether they could reject, as reasonably possible, Mekki’s account of not having received any calls from Mading because he was not in possession of his mobile phone at 2.27 am on 25 April 2022. 165 This complaint should be rejected. Again, it was not suggested that this was an issue calling for a Jones v Dunkel direction.78 At worst, the failure to ask questions of Mading seems to have arisen from a misconception by the prosecutor about what could be asked in light of the evidence that she had given. Nonetheless, it is clear that the trial judge fairly and comprehensively set out the evidence and the competing cases. The further direction he gave brought home to the jury the absence of questions directed to Mading about whether she had her phone. It followed that this necessarily included the absence of questions about whether she had used her mobile phone. This sufficiently addressed the issue that senior counsel had raised, including the issue now raised on this appeal. It remained a matter for the jury what they made of the evidence before them. 166 In a long trial with many issues, some of which may be complex and inter-related, it is not infrequently the case that issues are not addressed or questions are not asked in a way which, with the benefit of hindsight, could be criticised. Few trials, particularly long trials, are conducted in a way that leaves no room for criticism or improvement in at least some respects. However, the issue for this Court is not whether the issues could have been better litigated, but whether the trial was conducted in a manner that was fair and free from material miscarriages of justice. 167 Here again, it is necessary for this Court to recognise that it remains the duty of the trial judge to determine the real issues in the case and to direct the jury about those issues. That is a heavy responsibility which must be made in real time as the events are unfolding. A trial judge has, in those circumstances, a broad discretion. Whether directions could have been expressed differently or improved is not the test. The test is whether, with the benefit of the directions that were given, the jury were able to assess the evidence fairly having regard to the real issues in dispute, according to law. As to this, the jury were reminded of the limitations in the questioning of Mading, having already been apprised of the competing cases of the parties. 78 Jones v Dunkel (1959) 101 CLR 298. -- 36 of 64 -- [2026] SASCA 91 The Court 33 168 In these circumstances, it has not been shown that the direction which was given by the trial judge, when considered in light of the real issues in the case and the summing up as a whole, gave rise to any risk of miscarriage. 169 This appeal ground should be dismissed. 170 In consequence, the appropriate course is to grant Mekki permission to appeal but to dismiss his appeal against conviction.79 171 It is next convenient to address the conviction appeal of Agoth, before addressing the sentence appeals. Agoth’s grounds of appeal against conviction 172 Before this Court, Agoth pursued the following amended appeal grounds: 1. The LTJ erred by not directing the jury, in accordance with Shepherd, that in order to find the appellant guilty it was necessary to be satisfied beyond a reasonable doubt that: a. the appellant was one of the persons who turned right (and not left) at the end of Sia Furler Lane; and b. that the appellant was present and observed the words and actions said to have taken place in Sia Furler Lane relied upon to establish a common purpose in which he was a participant; and c. the appellant was one of the persons who had turned right at the end of Sia Furler Lane (and not left) in order to be able to find that he was present at the assault. 2. As to directions on identification affecting the appellant, the LTJ erred in that: a. in the context of a focus on relationship evidence as relevant to both identity and to existence of a joint enterprise between the appellant and the co-appellant, the jury were not adequately directed about the need to consider and determine proof of identity of each appellant separately; and b. in giving directions as to comparison of known images of the co-appellant for the purpose of his identification in the CCTV footage, the LTJ erred in not directing the jury that in the experience of the Courts, unreliable or wrong identification has led to innocent people being convicted in the past. 3. The LTJ erred in his directions to the jury on proof of extended joint criminal enterprise. Particulars The Summing Up and the written aide memoir titled ‘Elements’ provided to the jury allowed for a separation of: foresight of an act done by another with murderous intent; and foresight of the outcome of “acts” done leading to the death or grievous 79 There is no occasion to consider the operation of the proviso which was, in any event, disclaimed by the Director. -- 37 of 64 -- [2026] SASCA 91 The Court 34 bodily harm of the deceased. The jury was not directed that the foresight required was that an act might be done, with murderous intent, which act might in fact cause death or grievous bodily harm. It is an act of murder which must be foreseen, and not (only or separately) that a person may die or suffer grievous bodily harm, and the LTJ’s directions did not adequately preserve that distinction. 4. Where the content of P73, P74 and P75 depicted critical issues to be determined on the evidence by the jury, and where they depicted prosecution submissions (rather than the evidence at the trial), the LTJ erred in respect of those aide memoirs in that: a. the LTJ referred to them as “exhibits” and marked them with exhibit numbers; and b. the LTJ then allowed those aides to remain with the jurors during their deliberations. 173 During the hearing, however, appeal grounds 1(a), 1(c) and 4 were abandoned. 174 As developed before this Court, counsel for Agoth contended that there were two controversies at the trial. These were identity and, if identity was proved, whether it had been proved beyond reasonable doubt that Agoth had entered into and participated in a criminal enterprise of the kind alleged. As has been seen, the case of identity primarily depended upon DNA test results, CCTV footage and the evidence of two young eyewitnesses. Agoth’s first ground concerned both controversies. Agoth appeal ground 1: whether a Shepherd direction was required 175 Before addressing the evidence relevant to this ground and another, it is helpful to address the elements of joint enterprise and extended joint enterprise. 176 The principle of joint enterprise is founded on agreement. Typically, the agreement is proved by inference from the conduct of the accused. Whether the agreement is expressed in words or inferred from conduct, the evidence must establish an agreement to commit a crime. The agreement must be subjectively appreciated by each accused. In that event, each party to the agreement – whether described as a common purpose, common design or joint enterprise – will be guilty of the crime which was agreed as well as of any other crime within the scope of the agreement.80 177 Accordingly, for proof of murder by joint enterprise contrary to s 11 of the Criminal Law Consolidation Act 1935 (SA), it is essential to identify what the accused agreed would or might occur as an incident of the execution of their 80 McAuliffe v The Queen (1995) 183 CLR 108, 114 (Brennan CJ, Deane, Dawson, Toohey and Gummow JJ); Gillard v The Queen (2003) 219 CLR 1, [124] (Hayne J); Miller v The Queen (2016) 259 CLR 380, [4] (French CJ, Kiefel, Bell, Nettle and Gordon JJ); Mitchell v The King (2023) 276 CLR 299, [54] (Gordon, Edelman and Steward JJ). -- 38 of 64 -- [2026] SASCA 91 The Court 35 agreement.81 Where the prosecution proves what each party to the agreement subjectively agreed, including the criminal act, their liability is a primary liability based on a form of agency.82 All parties are liable as principals in the first degree because even those who do not physically perform the criminal acts are acting in concert and have the relevant mens rea; all are equally guilty of the crime regardless of the part played by each.83 178 Where the acts of the principal offender are within the scope of the agreement and done with the authority of the other parties, then liability is attributed to all parties to the agreement. That follows because every act done in furtherance of the common intent is “in law, done by all”.84 179 By contrast, extended joint enterprise represents an extension of criminal liability beyond the scope of what was agreed, provided each party to the joint enterprise has foreseen the commission of an incidental crime in the course of carrying out the agreed crime, and continues to participate.85 What must be foreseen are all elements of the incidental crime. This must arise as a possible incident of carrying out the agreed plan. For example, where the parties agree to commit a robbery, and in the course of carrying out the robbery one party kills the intended victim with the requisite intention for murder, the other parties will be liable for murder if they foresaw murder as a possible incident of carrying out the agreed plan.86 180 In Mitchell v The King, the plurality explained that, consistently with liability for murder being imposed upon a principal offender who intends to kill or cause grievous bodily harm, the foresight required of a secondary offender under extended joint enterprise is that the principal offender might, with murderous intent, cause death or really serious bodily harm.87 81 See the recent discussion of these principles in R v Howell; Mitchell, Rigney, Carver & Tenhoopen v The King [2026] SASCA 71 (S Doyle JA with whom Livesey P and B Doyle JA agreed), which incorporates analyses of constructive murder, s 12A of the Criminal Law Consolidation Act 1935 (SA) and the requirement in that setting for the scope of the agreement to extend to “acts of the general nature of the attributed act”, see Mitchell v The King (2023) 276 CLR 299, [65] (Gordon, Edelman and Steward JJ). 82 IL v The Queen (2017) 262 CLR 268, [29] (Kiefel CJ, Keane and Edelman JJ), [146]-[149] (Gordon J); Mitchell v The King (2023) 276 CLR 299, [54]-[55] (Gordon, Edelman and Steward JJ). 83 McAuliffe v The Queen (1995) 183 CLR 108, 114 (Brennan CJ, Deane, Dawson, Toohey and Gummow JJ); Mitchell v The King (2023) 276 CLR 299, [55] (Gordon, Edelman and Steward JJ). 84 Macklin, Murphy and Others’ Case (1838) 2 Lewin 225, 226. 85 McAuliffe v The Queen (1995) 183 CLR 108, 117-118 (Brennan CJ, Deane, Dawson, Toohey and Gummow JJ); Clayton v The Queen (2006) 81 ALJR 439, [26] (Kirby J); Miller v The Queen (2016) 259 CLR 380, [4] (French CJ, Kiefel, Bell, Nettle and Gordon JJ); Mitchell v The King (2023) 276 CLR 299, [56] (Gordon, Edelman and Steward JJ). 86 Miller v The Queen (2016) 259 CLR 380, [1], [10] (French CJ, Kiefel, Bell, Nettle and Gordon JJ); Mitchell v The King (2023) 276 CLR 299, [57] (Gordon, Edelman and Steward JJ). 87 Mitchell v The King (2023) 276 CLR 299, [58]-[59] (Gordon, Edelman and Steward JJ), citing, amongst other authorities, Miller v The Queen (2016) 259 CLR 380, [1] (French CJ, Kiefel, Bell, Nettle and Gordon JJ). -- 39 of 64 -- [2026] SASCA 91 The Court 36 181 The plurality accepted that foresight of the possibility of death followed from foresight of really serious bodily harm, since it must be proved that the accused foresaw the possibility that the primary offender would act with murderous intent and “only acts of the general nature of the attributed act” need be foreseen.88 182 In contrast to joint enterprise, liability for a crime committed during the criminal enterprise that was foreseen but which fell outside the scope of the agreement, is derivative or secondary in nature. The rationale for this form of liability is the intentional assistance given to an agreed crime whereby a party continues to participate whilst foreseeing as a possibility that the primary offender may commit the incidental crime, with the requisite intent, and cause death or really serious bodily harm. The liability is derived from, and dependent upon, the criminal liability of the principal offender.89 183 At this trial, the prosecution case was that Agoth entered into the relevant criminal agreement or enterprise soon after the larger group of black males, which included the principal offender, entered Sia Furler Lane. 184 At the time of the events at the top of Sia Furler Lane, there was evidence that a metal object was seen in the hand of one of the males.90 185 The prosecution called evidence from Mr Daryl Martin who observed the events in Sia Furler Lane and heard words to the effect, “I’m going to stab you”.91 The prosecutor told the jury during her final address that Agoth must have heard those words, and he joined in the enterprise when he took off down the laneway pursuing the deceased. The prosecutor submitted that the relevant criminal enterprise at that stage included, at the very least, the intention to cause the deceased grievous bodily harm.92 186 Before this Court, Agoth contended that the events in Sia Furler Lane, which included the production of a knife and the threat to stab, were important aspects of the prosecution case concerning participation in a joint enterprise culminating in the murder of the deceased. It was contended that it was critical to proving Agoth’s intention that he knew the principal offender had a knife. This extended to proof of the necessary foresight concerning extended joint enterprise, because it was necessary to prove what was subjectively foreseen by Agoth about the scope of the agreement, as well as a possible incident of it, including acts of the general nature as those which were agreed.93 187 Agoth contended that, therefore, what was said and done in Sia Furler Lane was essential to the prosecution proving beyond reasonable doubt that Agoth was party to and participated in a joint enterprise, as well as what he could be found to 88 Mitchell v The King (2023) 276 CLR 299, [58] (Gordon, Edelman and Steward JJ). 89 Mitchell v The King (2023) 276 CLR 299, [61] (Gordon, Edelman and Steward JJ). 90 Transcript 1560-1561, the prosecution referred to the evidence of Martin and Pracy. 91 Transcript, 347. 92 Transcript, 1556. 93 Mitchell v The King (2023) 276 CLR 299, [58] (Gordon, Edelman and Steward JJ). -- 40 of 64 -- [2026] SASCA 91 The Court 37 have subjectively appreciated about the intention of others in the enterprise, and proving what he foresaw as a possible incident of it. 188 Agoth contended that this was reinforced by the fact that, otherwise, a second offender may not have known that the principal offender had a knife until he started using it at the intersection of North Terrace and George Street, when it was too late for proof of a joint enterprise or of liability under extended joint enterprise. Agoth highlighted that the attack commenced before the second offender arrived, and the initial wounds could have been the lethal wounds. Before then, the principal offender and the second offender had been running after the deceased at some distance from each other. 189 A Shepherd direction94 was sought at the trial, but refused, as to whether Agoth knew that the principal offender had a knife. However, the trial judge told the jury that there were matters that they would need to accept before evidence of the events in Sia Furler Lane could shed any light on the matters to be proved.95 190 The trial judge directed that if the jury were not satisfied that Agoth was in Sia Furler Lane, the evidence about what happened there could not have any relevance. The trial judge also directed the jury that if they were satisfied that Agoth was in Sia Furler Lane, then that may shed some light on the issues the prosecution must prove beyond a reasonable doubt about joint enterprise or the alternative pathway of extended joint enterprise.96 191 The trial judge directed the jury about the importance of needing to find various matters proved before using the events in Sia Furler Lane in proof of the matters which the prosecution was required to prove beyond reasonable doubt. Whilst this fell short of a Shepherd direction, Agoth conceded that this was a relatively strong direction. 192 Nonetheless, Agoth maintained that the events in Sia Furler Lane were so important that they represented an essential step in reasoning to guilt. They were properly described as an indispensable intermediate step, calling for a Shepherd direction.97 193 In addition, Agoth criticised the directions of the trial judge because they allowed for a broader basis upon which to draw the inference that an agreement was formed. That is to say, as well as relying upon the events at the top of Sia Furler Lane, the trial judge followed the approach of the prosecutor by referring to the formation of the relevant agreement at a point before the group reached Sia Furler Lane.98 Agoth emphasised that it could not be known what line of reasoning 94 Shepherd v The Queen (1990) 170 CLR 573. 95 Summing up, AB 340. 96 Summing up, AB 185. See also AB 306-318. 97 Citing R v Singh [2019] SASCFC 51, [79]-[114] (S Doyle J, with whom Peek and Parker JJ agreed). 98 Summing up, AB 304-305. -- 41 of 64 -- [2026] SASCA 91 The Court 38 was taken up by the jury, particularly in a case where general and circumstantial evidence directions had earlier been given.99 194 The starting point for the resolution of this ground is that a Shepherd direction in the terms now sought was never sought by senior counsel for Agoth at the trial. The directions which were sought regarding Agoth’s presence in Sia Furler Lane, and the events that occurred there, were given by the trial judge.100 195 It may be accepted that Agoth’s presence and observation of the events in Sia Furler Lane represented an important part of the circumstantial case against him. However, it remained one of a number of strands to the prosecution case. 196 It is appropriate to now outline the different strands of the prosecution case against Agoth concerning his liability for murder by joint enterprise or extended joint enterprise. 197 The prosecution case was that it was the combination of these circumstances which gave rise to the basis for an inference which pointed to the existence of an agreement, as well as what was foreseen in connection with the execution of that agreement. In what follows, the prosecution case was that Agoth was the second offender and Mekki the primary offender. 198 The first matter was the apparent existence of a level of organisation and coordination amongst the first group which formed on Hindley Street and which then moved towards Sia Furler Lane where the affray between the two groups of males took place. 199 Secondly, the prosecution relied on the conduct in Sia Furler Lane where the first group of males pursued the smaller group of males after one of the males in the first group shouted “I’m going to stab you” or words to that effect, as well as “We’re going to get you”, directed to the male they were after,101 together with the words “There he is”.102 200 Martin gave evidence that in the course of this affray, he saw a metal shiny object in the hands of one of the taller males, who lunged at the others, before he and others commenced the pursuit of the deceased down Sia Furler Lane.103 201 Thirdly, by the time the pursuit arrived in Fenn Place, three males were pursuing the deceased. On the prosecution case, these were Mabior Malual, Agoth and Mekki. According to CCTV footage, at 2.05 am the second offender appeared to pause and wave the primary offender on. This was about one minute before the murder. The prosecution case was that this evidenced an implied understanding 99 Summing up, AB 173-176. 100 Summing up, AB 333, 340. 101 Transcript, 347-349. 102 Transcript, 345. 103 Transcript, 349. -- 42 of 64 -- [2026] SASCA 91 The Court 39 between the second offender and the primary offender: effectively, “you go on” after the deceased. 202 Fourthly, at North Terrace the primary offender appeared to drop a knife, circle back and pick it up. According to the CCTV footage at the intersection of North Terrace and George Street, as the primary offender approached the deceased, the second offender appeared to increase speed. He was sprinting toward the intersection. According to the prosecution, this reflected the second offender’s understanding of what was about to happen. After the primary offender stabbed the deceased the first time, the deceased tried to run away. It was then that the second offender intervened to trip the deceased in the middle of the intersection. The primary offender then continued to stab the deceased. 203 Whilst the CCTV footage has its limitations, the second offender did not appear to react as the primary offender continued the stabbing. Indeed, after the final stab wound was inflicted by the person the prosecution alleged was Mekki, the person it was alleged was Agoth stomped the deceased’s head or neck, and then they both walked off. 204 On the prosecution case, these events showed an implied understanding or agreement between Mekki and Agoth. 205 Finally, the prosecution relied upon the lengthy prior association between Mekki and Agoth, where Mekki gave evidence that he’d known Agoth “basically [his] whole life”.104 The prosecution also relied on what were said to be numerous calls between Mekki and Agoth, their joint membership of a Snapchat group, that Agoth had paid for Mekki’s flights to and from Adelaide, that they had stayed together at Deng Mangar’s home and then at the Mantra Hotel and, if the jury accepted that Mekki was the male wearing the blue LA cap, they had spent most of the night together. 206 The prosecution case was that two people with an existing relationship were more likely to enter into an agreement of the nature alleged than two people who were previously unknown to each other. 207 Of course, these circumstances had to be weighed having the regard to the whole of the evidence, which included Mekki’s detailed and comprehensive denials. 208 At the hearing before this Court, the Director contended that because the evidence left open scope for proof of an agreement at various points, and not merely or only in Sia Furler Lane, this was not a case where it was necessary or appropriate to give a Shepherd direction. 209 This contention must be accepted, recognising that the trial judge otherwise gave careful and comprehensive directions. Those directions extended to the jury 104 Transcript, 1027. -- 43 of 64 -- [2026] SASCA 91 The Court 40 needing to be satisfied about a range of matters before they could find Agoth guilty of murder beyond reasonable doubt by joint enterprise or extended joint enterprise. 210 In particular, before the jury could use the evidence of what occurred in Sia Furler Lane against Agoth, they needed to find that he was there; accept the evidence about a threat to stab being made; that a shiny object or weapon was brandished; that Agoth saw or heard that; and that one or both of these things were done by a member of the first, larger group of males which included the principal and secondary offenders. 211 The jury was tasked with drawing together a number of circumstantial threads, which included proof of identity of the second and primary offenders, together with proof of the essential elements of the affray in Sia Furler Lane. The directions given by the trial judge across these issues assisted the jury to determine whether the second and primary offenders made an agreement, as well as acted on that agreement. 212 On the directions of the trial judge, the same evidence permitted inferences to be drawn about the nature of the agreement, what was intended, together with what the second offender had in contemplation regarding the scope of the agreement, as well as what was foreseen but which fell outside the scope of the agreement. It cannot be said that it was essential to concentrate only on the events in Sia Furler Lane, as important as they were, to the exclusion of events just before and after the affray in that lane. What occurred in Sia Furler Lane was not an indispensable link in proof of guilt and the directions given were sufficient. 213 In the circumstances of this case, no further direction was required, there is no risk of miscarriage and appeal ground 1 should be dismissed. Agoth appeal ground 2: the directions on identification concerning Agoth 214 Under this ground, Agoth contended that the trial judge erred by focusing on the evidence of the relationship between him and Mekki and not adequately directing about the need for separate consideration of proof of identity. Associated with this complaint was the further complaint that when giving directions about comparing the images of the principal offender in the CCTV footage against the known images of Mekki, it was an error to fail to direct the jury that, in the experience of the courts, unreliable or wrong identification had led to innocent people being convicted. 215 As has been seen, whilst the CCTV footage was important, it was not the only evidence on which the prosecution relied. Apart from the known movements of Mekki and Agoth (about which there was no dispute) and the DNA evidence, there was the admitted possession and wearing of the blue LA cap as well as other items in Mekki’s possession which it was said matched observations of items in -- 44 of 64 -- [2026] SASCA 91 The Court 41 the possession of the principal offender.105 There was, in addition, the mobile telephone evidence involving Mading’s phone and the evidence of Tear about collecting the black male in Liverpool Street, already mentioned. Finally, the prosecution relied on what was claimed to be Mekki’s distinctive gait, and that the movements of the principal offender through the streets of Adelaide appeared to demonstrate a lack of familiarity with Adelaide and, of course, the attempt made by Mekki to fly back to Melbourne under a false name. 216 It is not necessary to repeat the analysis of the evidence of Ms Scale and Ms Cole. In addition to this evidence, there was the evidence already mentioned from Professor Spring and Dr Sorrell concerning the limitations in viewing CCTV footage. 217 Agoth was critical of the extent of the warning given by the trial judge regarding the particular dangers associated with the exercise of comparing the CCTV footage and still photographs against the known images of Mekki and Agoth. This was, however, described by the trial judge as an important direction.106 218 Whilst it was accepted that the trial judge did more than merely repeat counsel’s arguments, it was submitted that it was necessary to go further and direct the jury about the experience of the courts.107 219 Finally, in circumstances where so much store had been placed upon the prior association between Mekki and Agoth, Agoth contended that, to the extent that Mekki’s identification was weak or flawed, that necessarily affected and undermined the identification made of Agoth. 220 These contentions must be rejected. No challenge was made to the evidence of Mekki regarding his longstanding association with Agoth, nor to his evidence identifying Agoth in the CCTV footage up to around the time of events in Hindley Street. 221 However, and more significantly, the trial judge gave directions which, whether explicitly or by implication, required that the jury separately address the identification cases concerning each of Mekki and Agoth. After telling the jury that there were effectively two trials being conducted together,108 the jury were explicitly directed to consider the case against each accused separately and the judge’s directions revealed the need for separate treatment for each accused.109 105 Such as a gold necklace or chain, a cigarette lighter and piercings in each ear which were said to resemble what was seen in the CCTV footage and what was found on Mekki following the murder. 106 Summing up, AB 206-209. 107 Relying upon Domican v The Queen (1992) 173 CLR 555, 561-562 (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ); Mundy v The King [2023] SASCA 59, [89] (Lovell JA and David JA, with whom Kourakis CJ agreed). 108 Summing up, AB 129. 109 Summing up, AB 167-179. -- 45 of 64 -- [2026] SASCA 91 The Court 42 222 There was no error made and no risk of miscarriage arising in connection with these directions. 223 As for the suggestion that it was necessary to warn the jury that the experience of the courts was that unreliable or wrong identifications had led to innocent people being convicted, the authorities on which Agoth relied were all authorities concerning what might be described as traditional or bare identification evidence. That is to say, evidence given by a witness who has seen a person they do not know outside of the courtroom and then compared that with observations made of the defendant in the courtroom. They were not cases addressing the exercise involved in this case of the jury comparing observations made of CCTV footage and photographs against known images of the accused. 224 It is only in connection with what might be described as traditional identification evidence that juries have been warned about the experience of the courts concerning wrongful convictions, particularly given the recognised “displacement effect” discussed in cases such as Mundy v The King.110 However, even in those cases, a warning based on the experience of the courts is not always required.111 That kind of warning may not be required provided the jury is directed that the evidence calls for great care. Indeed, in Mundy v The King it was sufficient that a warning had been given about the dangers of identification evidence.112 225 The directions given by the trial judge in this case made it clear to the jury that caution and care were required. That was, in any event, obvious from the evidence of the experts regarding the limitations in the analysis of CCTV footage, combined with Mekki’s denials. 226 Finally, and importantly, the trial judge specifically adverted to the kind of direction which is now suggested, but explained to counsel why he did not think it was appropriate. He explained to counsel that the process that the jury were undertaking was different,113 and the jury were able to look at the CCTV footage again and again and again. Whilst that gave rise to a risk of assumption, that was a risk different to that which arises in traditional cases of identification. It was because of the risk of assumption that the warnings given by the trial judge were given in the terms in which they were given. 227 Despite having the benefit of the proposed draft directions from the trial judge, counsel for Agoth took no issue with what was proposed. No issue was taken by counsel for Mekki, either. When the issue was again raised before the summing up commenced, experienced senior counsel for Agoth did not seek any modification to the proposed directions.114 110 Mundy v The King [2023] SASCA 59, [88]-[90] (Lovell JA and David JA, with whom Kourakis CJ agreed). 111 R v Bennett [2004] SASC 52, [74] (Doyle CJ, with whom Perry J agreed). 112 Mundy v The King [2023] SASCA 59, [100] (Lovell JA and David JA, with whom Kourakis CJ agreed). 113 Transcript, 1507. 114 Transcript, 1577, 1598-1599. -- 46 of 64 -- [2026] SASCA 91 The Court 43 228 In circumstances where the directions given by the trial judge were comprehensive and extended to all of the risks inherent in the comparison exercise undertaken by the jury, tailored to the real issues arising in the case, including a warning about the need for caution when undertaking identification by way of comparison, no further directions were required.115 229 This appeal ground should be dismissed. Agoth appeal ground 3: inadequate directions on extended joint enterprise 230 Agoth criticised the directions given by the trial judge on the basis that they did not follow the submissions made by counsel for Agoth at the trial, and they did not adequately adhere to the ruling made by the High Court in Mitchell v The King concerning the need for proof that Agoth foresaw all elements of the crime committed by the principal offender, including the result. 231 It was suggested that the act of murder must be foreseen, and not only or separately that a person might die or suffer grievous bodily harm. It was suggested that the directions of the trial judge did not adequately preserve that distinction. 232 Before this Court, senior counsel for Agoth emphasised the following passages from the joint reasons in Mitchell v The King:116 The decision of this Court in Miller117 precluded each appellant from being held responsible for murder by application of the doctrine of extended joint criminal enterprise unless the prosecution established beyond reasonable doubt that he foresaw both that a participant in the joint criminal enterprise might act with murderous intention and that acts committed in the course of the enterprise might cause really serious bodily injury or death. The trial judge directed the jury that they could only find that an accused person was guilty of murder under the pathway of common law murder based on extended joint criminal enterprise if the prosecution had proved beyond reasonable doubt that the accused foresaw that a participant to the joint criminal enterprise might inflict violence with an intention of causing death or really serious bodily harm. But the trial judge erred by failing to direct the jury that for common law murder based on extended joint criminal enterprise the accused must also foresee the consequence of death or really serious bodily harm. In many cases, foresight of this consequence might be a very short step from foresight that a participant might act with murderous intention. The direction that the trial judge should have given in relation to extended joint criminal enterprise is one in which it was explained that conviction depended upon proof beyond reasonable doubt that the accused was a party to an agreement to commit a crime and that the accused foresaw that in the commission of that crime there was a possibility that another person, with intent to do so, would cause really serious bodily harm or death. 233 Emphasis was given to the concluding words in the second paragraph, namely, the necessity to explain that conviction depended upon proof beyond reasonable doubt that the accused was party to an agreement to commit a crime, and that the accused foresaw that in the commission of that crime there was a 115 Summing up, AB 198-213. 116 Mitchell v The King (2023) 276 CLR 299, [106]-[107] (Gordon, Edelman and Steward JJ). 117 (2016) 259 CLR 380, 387 [1]. See also at 416 [100]. -- 47 of 64 -- [2026] SASCA 91 The Court 44 possibility that another person, with intent to do so, would cause really serious bodily harm or death. 234 The aide-memoire provided by the judge to the jury was in the following form:118 Mr Agoth – Murder – Joint enterprise (1) Mr Bol was the victim of a murder (i.e. – all the elements … for Murder). (2) Mr Agoth joined an agreement with the person who stabbed Mr Bol to kill or to cause grievous bodily harm. (3) Before the first stab, Mr Agoth participated in that agreement. (4) When participating before the first stab, Mr Agoth intended that Mr Bol would be killed or that grievous bodily harm would be caused. Mr Agoth – Murder – Extended Joint Enterprise (1) Mr Bol was the victim of a murder (i.e. – all the elements ... for Murder). (2) Mr Agoth joined an agreement with the person who stabbed Mr Bol to at least assault him (i.e. – at least an agreement to apply force, deliberately and unlawfully). (3) Before the first stab, Mr Agoth foresaw that the stabber might assault Mr Bol with the intention to kill or the intention to cause grievous bodily harm – and – foresaw that acts committed in the course of the agreement might cause death or grievous bodily harm. (4) With the foresight immediately above and before the first stab, Mr Agoth participated in the agreement to assault. 235 The underlined words were challenged on appeal. Senior counsel for Agoth at the trial had suggested the following amendment to the third element for extended joint enterprise: (3) Before the first stab, Mr Agoth foresaw that the stabber might assault Mr Bol with the intention to kill or the intention to cause grievous bodily harm – and foresaw death or grievous bodily harm as a result. 236 It can be seen that the words “that acts committed in the course of the agreement might cause” were omitted. The trial judge declined to adopt this proposed amendment. 237 In the course of his summing up, after referring to the aide-memoire, the trial judge directed the jury as follows:119 Under the pathway of extended joint enterprise the prosecution seeks to establish, beyond a reasonable doubt, that Mr Agoth was part of an agreement to at least assault and while 118 AB 121. 119 Summing up, AB 161. -- 48 of 64 -- [2026] SASCA 91 The Court 45 part of that agreement foresaw that the stabber might assault with an intention to kill or cause grievous bodily harm and foresaw that acts committed in the course of the agreement to assault might cause death or grievous bodily harm, and with that foresight just mentioned and set out within the third element in the document, Mr Agoth participated in the agreed assault and did that before the first stab. 238 Later in the summing up, the trial judge reiterated his direction concerning extended joint enterprise:120 If you have found beyond a reasonable doubt that Mr Agoth was the second person, it is a matter for you, but you might be considering more than whether it is significant that he was present with Mr Bol and the stabber in North Terrace when evaluating whether the prosecution has proved beyond a reasonable doubt matters such as … if an essential agreement was joined, did Mr Agoth participate in the agreement that he had joined before the first stab; and ... if Mr Agoth did participate before the first stab, was it with all the essential foresight necessary for extended joint enterprise; that is element 3 of extended joint enterprise? Before the first stab Mr Agoth foresaw that the stabber might assault Mr Bol with the intention to kill or the intention to cause grievous bodily harm and foresaw that acts committed in the course of the agreement to at least assault might cause death or grievous bodily harm. 239 As developed on appeal, it was suggested that the trial judge’s failure to follow the exact words in the final sentence at [107] of Mitchell v The King (set out earlier) revealed error. 240 That submission should be rejected. The elements emerging from that passage of the joint reasons identified the need for proof that the accused: (1) was party to an agreement to commit a crime, here an assault; (2) foresaw that in the commission of the assault there was a possibility that the principal offender might cause death or really serious bodily harm; and (3) that the principal offender might act with the intent to cause death or really serious bodily harm. 241 Here, the second element in the aide-memoire addressed the need for an agreement and participation in it, and the third element addressed the need for foresight that the principal offender might intend to kill or cause grievous bodily harm, and that the assault might cause death or grievous bodily harm as a result. 242 Whilst the sequence is different, the elements from the passage in Mitchell were reproduced. There is no appreciable risk that the jury was misdirected regarding the legal elements of extended joint enterprise.121 243 In the course of submissions before this Court, it was suggested that there may have been scope for reading the aide-memoire in a way that permitted the jury to contemplate that the second offender might have foreseen a particular act but 120 Summing up, AB 302-303. 121 MDP v The King (2025) 99 ALJR 969, [142]-[143] (Gleeson, Jagot and Beech-Jones JJ in dissent). -- 49 of 64 -- [2026] SASCA 91 The Court 46 that death was caused through some other means. That risk should be rejected having regard to the way in which the case was fought, and the real issues that arose in the course of the trial. There was never any suggestion that death was caused by some means other than the particular conduct foreseen by Agoth. 244 In the circumstances, this appeal ground should be dismissed. 245 In consequence, and as with the conviction appeal of Mekki, permission to appeal should be granted, but Mr Agoth’s appeal against conviction should be dismissed. 246 It is now appropriate to address their appeals against sentence. The appeals against sentence: Mekki and Agoth 247 Each appellant applied for permission to appeal against sentence. In circumstances where it is only in connection with the appeal of Agoth that a specific error was asserted, it is convenient to address that first. 248 After the appellants were convicted, and in the course of his sentencing remarks, the sentencing judge made the following findings concerning the factual basis upon which he sentenced the appellants. Factual basis for sentence: the offending 249 In the early hours of 25 April 2022, there was a confrontation between two groups of males at the entrance to Sia Furler Lane in the Adelaide CBD. Mekki and Agoth were in one group, and the deceased was in the other, smaller group. 250 A number of matters were raised during sentencing submissions about the offending which were not mentioned during the trial. For example, his Honour accepted that one or more members of the smaller group were armed and that this could be seen in the CCTV footage. The sentencing judge said that this had not been brought to his attention during the trial.122 The sentencing judge found that one person from the group which included the deceased held his weapon out in front of him and pointed it in the direction of the larger group which included Mekki and Agoth. The sentencing judge found that, notwithstanding that at least that man and likely others from the smaller group were armed, it was significant that they were the ones to take flight. 251 The sentencing judge found that, amongst the inferences, they did so because they saw a weapon or weapons in the larger group. Referring to Mekki, the sentencing judge found that he had a knife and he produced it:123 I am satisfied that you would not have been reluctant to produce the knife that you had in the lane or in the area around the entrance to the lane. You had it in your possession, you ran to the lane immediately before the confrontation and you did so in expectation of a 122 Sentencing remarks, AB 130. 123 Sentencing remarks, AB 131. -- 50 of 64 -- [2026] SASCA 91 The Court 47 confrontation. I am satisfied that you would have produced the knife during the confrontation, at least in response to the conduct of a member or members of the other group, if not before seeing their conduct. 252 For the purposes of sentencing, the sentencing judge put to one side that Mekki could be seen, for the briefest of moments, with a flash of light near his hand which may have been consistent with him wielding a knife. The sentencing judge put this to one side because care was required to be taken with the CCTV footage and Mekki’s clothing had features which could be mistaken for the reflection of a knife. 253 The sentencing judge found that, nevertheless, he was satisfied beyond a reasonable doubt that Mekki produced the knife during the confrontation in the lane.124 254 After the members of the smaller group ran off, Mekki and Agoth and others chased them. The deceased ran through the University and onto North Terrace. It was only Mekki and Agoth who continued the pursuit of the deceased to the point of catching up with him on the footpath near George Street on the northern side of North Terrace.125 255 The sentencing judge found that the deceased was unarmed and posed no threat whatsoever. He found that neither of the appellants had explained what motive there might have been for the murder. The sentencing judge found that there was more to the motive for what occurred to the deceased beyond the confrontation near the lane, but he could make no finding about what that motive was.126 256 The sentencing judge found that Mekki caught up to the deceased first and was armed with a knife. The sentencing judge was satisfied beyond a reasonable doubt that Mekki had taken the knife into the city two hours previously.127 257 Having caught up with the deceased, Mekki immediately stabbed, or attempted to stab, the deceased while he was standing. The deceased fell to the ground and Mekki stabbed him repeatedly whilst he was on the ground. The sentencing judge observed that the stabbing was captured on CCTV footage and that it was disturbing that anyone, let alone a youth, could repeatedly stab a person on the ground who was posing no threat.128 258 Having reviewed the CCTV footage, the sentencing judge was satisfied beyond reasonable doubt that Mekki stabbed the deceased while he was on the ground at least four, or perhaps five, times. Given the nature of the weapon and the number of times that he stabbed the deceased, targeting the upper body with 124 Sentencing remarks, AB 130. 125 Sentencing remarks, AB 129. 126 Sentencing remarks, AB 129. 127 Sentencing remarks, AB 129. 128 Sentencing remarks, AB 131. -- 51 of 64 -- [2026] SASCA 91 The Court 48 force, the sentencing judge was satisfied beyond a reasonable doubt that Mekki intended to kill the deceased and that this was his intention at the time of every blow with the knife.129 259 The deceased suffered six separate knife wounds, two of which were fatal. All six were to the upper body. The knife was raised up by Mekki when he first reached the deceased and he struck out at him. Whilst the deceased was on the ground, Mekki could be seen to be bringing the knife back a significant distance, revealing an intention to use considerable force.130 260 Whilst the sentencing judge was not able to make a finding about when Mekki first formed the intention to kill, he was satisfied that it was before the first blow with the knife. 261 As for Agoth, the sentencing judge found that he was initially ahead of Mekki, but he was passed by him in the grounds of the University. Later, he caught up with Mekki and the deceased at about the time Mekki first struck out at the deceased. He was then about three or four metres away. He stood with Mekki while the deceased was on the ground and being stabbed repeatedly.131 The sentencing judge was satisfied beyond a reasonable doubt that Agoth saw the deceased being stabbed while he was on the ground and, having seen that, and while the deceased was still on the ground, he either kicked the deceased to the head or stomped on his head.132 262 The sentencing judge observed that the case against Agoth was left to the jury on the basis of joint enterprise and, in the alternative, extended joint enterprise. 263 The directions to the jury “demanded entry into the relevant agreement and participation before the first stab”.133 The sentencing judge was satisfied beyond a reasonable doubt that Agoth entered into an agreement with Mekki to cause grievous bodily harm to the deceased and he was sentenced on that basis. The sentencing judge could not reject, as a reasonable possibility, that Mekki acted with an intention which went beyond what had been agreed and that Mekki formed the intention to kill after entry into the agreement with Agoth.134 264 The sentencing judge then explained the findings he had made beyond reasonable doubt regarding Agoth’s knowledge that Mekki had a knife:135 While the agreement might have been an unspoken one, certainly formed no later than during the chase, and certainly against the background of you both expecting a 129 Sentencing remarks, AB 132. 130 Sentencing remarks, AB 132. 131 Sentencing remarks, AB 132. 132 Sentencing remarks, AB 133. 133 Sentencing remarks, AB 133. 134 Sentencing remarks, AB 133. 135 Sentencing remarks, AB 133-134. -- 52 of 64 -- [2026] SASCA 91 The Court 49 confrontation when arriving in the city, I am satisfied beyond a reasonable doubt that well before the first strike at [the deceased], you knew that [Mekki] was armed. Before this night, you had known [Mekki] for many years. You were close. You travelled to Adelaide to spend time together, along with others. With others, you were sharing the same apartment in a hotel. You had been present in the city with [Mekki] for about two hours before the killing, albeit not with him all that time. Given that both of you had no hesitation in separately moving quickly in the direction of the lane having been alerted by another or others, I have no doubt that you and [Mekki] expected a confrontation before coming into the city. These things are relevant to whether [Mekki] would have hidden that he had a knife. 265 The sentencing judge recorded that Agoth was in the area of the eastern end of Sia Furler Lane during the affray, including when a weapon was wielded by a member of the smaller group which included the deceased, as well as when Mekki responded by producing his knife, and the pursuit followed. 266 In the University, Agoth motioned to Mekki to continue past him and in pursuit of, amongst others, the deceased. The sentencing judge found that Agoth wanted Mekki to catch up to those being pursued and to act against them. That is, Agoth was urging Mekki to catch up to those who were part of the smaller group Agoth knew was armed. The sentencing judge explained:136 ... given my directions to the jury, although the agreement had to be entered into before the first stab, your conduct during and after the stabbing is relevant to the evaluation of what you had agreed before the first stab. That, without intervention, you watched as [the deceased] was stabbed in the way that he was, and you then kicking and stomping on him, are part of the evidence shedding light on what had earlier been agreed. In the circumstances I am satisfied, beyond a reasonable doubt, that the agreement you joined was to cause grievous bodily harm. I am satisfied, beyond a reasonable doubt, that the agreement was reached no later than during the chase and before reaching North Terrace. 267 That is, the sentencing judge found that the requisite agreement for the purpose of liability for joint enterprise was reached no later than during the chase, before reaching North Terrace, when Agoth kicked the legs or tripped the deceased. Agoth sentencing appeal ground 1: Agoth went into the city expecting a confrontation 268 Agoth challenged the finding made by the sentencing judge that Agoth went into the city expecting a confrontation on the basis that it was not open on the available evidence. 136 Sentencing remarks, AB 134-135. -- 53 of 64 -- [2026] SASCA 91 The Court 50 269 Before this Court, counsel contended that the finding was referred to on three occasions by the sentencing judge.137 He contended that there was no evidence capable of supporting that finding, whether by way of direct evidence or inference. 270 Whilst Agoth conceded that the case against him was left to the jury on the basis that the joint enterprise had been agreed before the first strike, it was contended that there was no basis for a finding of entry into an agreement before the affray in Sia Furler Lane.138 Whilst Agoth accepted that there was a distinction between reaching an agreement regarding the joint enterprise in or soon after Sia Furler Lane, and arriving in the city expecting a confrontation, he suggested that the evidence and inferences available concerning the joint enterprise could not be used to extrapolate backward to the time of arrival in the city.139 271 The resolution of this ground of appeal must commence with the other findings made by the sentencing judge which are not the subject of challenge. These include the range of inferences drawn by the sentencing judge based on what occurred. The starting point is that there appeared to be a strong motive for the conduct of Mekki and Agoth even though the detail of that motive has never been revealed. 272 Secondly, the close nature of the relationship between Mekki and Agoth must be borne in mind. That was revealed in a number of ways, including the travel arrangements Agoth made for Mekki as well as the accommodation they shared once they arrived in Adelaide. 273 Thirdly, it is necessary to bring to account the speed at which events unfolded amongst the larger group which included Mekki and Agoth from the point they gathered in Hindley Street outside the Sheesha Lounge, to the affray in Sia Furler Lane. 274 Fourthly, the inferences arising from these facts coalesce in the events surrounding the pursuit through the University, culminating in the murder at the intersection of North Terrace and George Street. 275 Finally, the proved movements on the night of 24 April and 25 April 2022 disclosed no basis for the extreme hostility exhibited between the two groups involved in the affray in Sia Furler Lane. That underscores the finding made by the sentencing judge that there was evidently a strong motive for the killing, the detail of which had not been revealed by the appellants. 276 Broadly, the impression arising from these facts and inferences is that the conduct of Mekki and Agoth was far from spontaneous. Rather, the speed and coordination of their movements, including their pursuit and the events 137 Sentencing remarks, AB 129, 133, 143. 138 Transcript, R v Agoth; R v Mekki (Court of Appeal, SCCRM-24-036375, SCCRM-25-000043, SCCRM- 24-036518, SCCRM-24-050546, 17 June 2026) (appeal transcript), 20. 139 Appeal transcript, 20. -- 54 of 64 -- [2026] SASCA 91 The Court 51 surrounding the killing, in which Agoth played a significant role, suggest a degree of premeditation associated with the conduct of Mekki as well as Agoth. 277 To infer that Agoth, like Mekki who brought a knife with him, was expecting some form of confrontation when arriving in the city was a finding which was available to the sentencing judge. 278 However, even if that were not so, there can be no doubt that by the time of his movement from Hindley Street to Sia Furler Lane, Agoth was expecting a confrontation. Indeed, during the course of sentencing submissions, the sentencing judge put to counsel that before midnight there was some expectation of a confrontation. Counsel agreed. In the case of counsel for Agoth, this was not put as clearly but his submissions acknowledged that something had happened which had caused the two groups to come together in a confrontation.140 279 In circumstances where there appeared to be no dispute that a confrontation was anticipated from around the time the group which included Mekki and Agoth moved from Hindley Street, it is doubtful indeed whether the further inference that a confrontation was expected on arrival in the city two or so hours previously was material. That is to say, it seems unlikely that even if that finding was not open to the sentencing judge, it was capable of influencing the exercise of sentencing discretion or the sentence ultimately imposed. 280 This appeal ground should be dismissed. Mekki and Agoth sentence appeals: whether the sentences are manifestly excessive 281 At the time of sentencing, both Mekki and Agoth maintained their innocence and did not accept the verdict of the jury. The circumstances of the offender: Mekki 282 As mentioned, at the time of the murder Mekki was 17 years and, by the time of sentence, he was 20. Though born in Egypt, Mekki was ethnically and culturally South Sudanese. He is the second of nine children. When aged one, his family fled civil conflict in South Sudan and came to Australia as refugees. Initially, the family came to Queensland. 283 Whilst living in Queensland, Mekki’s parents came into conflict. Their relationship deteriorated and Mekki witnessed domestic violence perpetrated by his father against his mother. He too was regularly physically abused by his father. When he was 11, Mekki moved with his mother and siblings to Victoria. 284 Mekki attended primary school in Queensland until year 5. After moving to Victoria, he attended the “O Street” school during 2021 and 2022, a culturally 140 Sentencing submissions, AB 111. -- 55 of 64 -- [2026] SASCA 91 The Court 52 responsive learning space for youth exiting custody and returning to the community. 285 Without positive role models and with a difficult upbringing, Mekki’s childhood was marked by disadvantage. 286 The sentencing judge observed that Mekki had a poor criminal history. As a youth, he committed offences of robbery, affray, assaults and other offences of violence. At the time of the murder, his attendance in Adelaide was in breach of his parole in Victoria. The circumstances of the offender: Agoth 287 Though, like Mekki, Agoth did not accept the verdict of the jury, he had expressed empathy for the deceased and those close to him. 288 Whilst the sentencing judge accepted that the empathy may be genuine, he recognised that it was expressed by someone who did not admit his involvement, who had not apologised and who had not shared with the family of the deceased the complete picture of why the murder occurred. 289 Agoth was 21 years at the time of offending and 24 at the time of sentence. He was born in South Sudan and came to Australia on a humanitarian visa when aged three. He came to Australia with his mother and a teenage cousin. His mother has a disability, and his father is not in Australia. Agoth has no relationship with him. 290 When Agoth was aged five or six his cousin left home, causing him trauma and a sense of abandonment. He may have had ADHD. During childhood, Agoth’s mother struggled with meeting his emotional needs and he described being bullied, ostracised and being unable to talk to his mother. He described feelings of shame, anger and hatred towards his mother. This relationship was and remains complex. Nevertheless, Agoth’s mother remains supportive of him. 291 Agoth reported being sexually abused in Australia and in Uganda. In 2012, his mother sent him to boarding schools in Uganda for three years. This compounded his anger, sense of abandonment and resulted in additional trauma. He was exposed to severe punishments and was ostracised. He ran away more than once and lived in the streets. 292 Agoth returned to Australia at the end of 2015. He went to school but encountered a similar range of social, educational and interpersonal challenges. His relationship with his mother remained fraught, relatives ostracised him and he experienced discrimination. 293 At the end of 2016, Agoth developed a friendship with a cousin but he was not permitted to see that cousin. He felt betrayed and reported giving up trying to behave. He then met with a person who introduced him to crime. -- 56 of 64 -- [2026] SASCA 91 The Court 53 294 Agoth was expelled from school in year 10 and at times lived on the streets. Extensive drug use commenced when he was a youth and Dr Lim, in a psychological report, described his drug use as a form of self-medication. Agoth reported that he was using drugs while in Adelaide on the weekend of the murder. 295 In 2019, Agoth began reconnecting with his mother and by 2020 he had returned to live at home. In mid-2020 Agoth began attending O Street. He was described as reflective, thoughtful and funny, as well as an enthusiastic learner with a deep sense of community. 296 The only employment Agoth has ever had in the community lasted a few months during 2021. He did, however, work whilst on remand. 297 As well as his mother, Agoth had the support of a partner. 298 Dr Lim expressed the opinion that, at the time of offending, Agoth met the diagnostic criteria for a complex PTSD, antisocial personality disorder and polysubstance use disorder. Agoth had developed a deep-seated abandonment, mistrust and anger-driven cognitive framework. Dr Lim thought Agoth appeared to have developed some insight into his risk factors and he had the motivation to address them. Nonetheless, Dr Lim said his prognosis and prospects for rehabilitation were guarded until there was targeted intervention and therapy. 299 As a youth, Agoth committed robberies, assaults and affrays. He engaged in similar offending as an adult. He too attended in Adelaide in breach of a condition which prevented interstate travel. 300 In relation to both appellants the trial judge said that, without ignoring their respective personal circumstances or immaturity, they had both demonstrated a disinterest in obeying the ordinary rules of society. That included showing a disinterest in complying with court orders. They had little, if any, respect for authority. In the case of Mekki, that had been demonstrated by previous assaults on youth justice and emergency service workers. The applicable sentencing provisions 301 The penalty for murder is imprisonment for life,141 with a mandatory minimum non-parole period of 20 years, see s 47(5)(b) of the Sentencing Act 2017 (SA) (Sentencing Act): 47—Duty of court to fix or extend non-parole periods … (5) The above provisions are subject to the following qualifications: … 141 Criminal Law Consolidation Act 1935 (SA), s 11. -- 57 of 64 -- [2026] SASCA 91 The Court 54 (b) if fixing a non-parole period in respect of a person sentenced to life imprisonment for an offence of murder, the mandatory minimum non-parole period prescribed in respect of the offence is 20 years … 302 Before 29 March 2021, when the Statutes Amendment (Abolition of Defence of Provocation and Related Matters) Act 2020 (SA) commenced, s 48(1) of the Sentencing Act contained a legislative direction that the mandatory minimum non-parole period of 20 years represented an offence at the lower end of objective seriousness.142 303 Although the decision of the Court of Criminal Appeal in R v Hallcroft concerned s 32A(1) of the Criminal Law (Sentencing) Act 1998 (SA), that was in identical terms to the former s 48(1) of the Sentencing Act. The discretion to impose a non-parole period of less than 20 years depended upon whether the matter came within the narrow circumstances prescribed by the Sentencing Act.143 304 In R v Singh,144 this Court considered the effect of the Statutes Amendment (Abolition of Defence of Provocation and Related Matters) Act 2020 (SA). Apart from repealing the former s 48(1), a new s 48(2) was introduced: 48—Mandatory minimum non-parole periods and proportionality (2) In fixing a non-parole period in respect of an offence for which a mandatory minimum non-parole period is prescribed, the court may— (a) if satisfied that a non-parole period that is longer than the prescribed period is warranted because of any objective or subjective factors affecting the relative seriousness of the offence, fix such longer non-parole period as it thinks fit; or (b) in the circumstances (if any) prescribed by the regulations for the purposes of this paragraph, or otherwise in exceptional circumstances, fix a non-parole period that is shorter than the prescribed period. 305 In R v Singh this Court explained:145 For the reasons explained in Hurt, the mandatory minimum non-parole period for murder signifies the seriousness with which the legislature views the offence of murder, and operates as a yardstick (representing the least serious instances of the offence of murder) against which to measure a proposed non-parole period. It follows from the terms of ss 10 and 11 of the Sentencing Act, which require a court to have regard to principles of proportionality and the seriousness of the offence, that the mandatory minimum is to be considered as part of the sentencing process from the outset, and at all stages of the sentencing process. It does not operate as a mere “final check”, but rather as a yardstick or 142 R v Hallcroft (2016) 126 SASR 415, [49]-[50] (Kourakis CJ, with whom Peek, Stanley, Lovell and S Doyle JJ agreed). 143 R v Hallcroft (2016) 126 SASR 415, [40] (Kourakis CJ, with whom Peek, Stanley, Lovell and S Doyle JJ agreed). 144 R v Singh (2024) 145 SASR 417. 145 R v Singh (2024) 145 SASR 417, [59]-[60] (Livesey ACJ, S Doyle and David JJA). -- 58 of 64 -- [2026] SASCA 91 The Court 55 benchmark representing the least serious category of case, in the same way that the maximum penalty represents the worst category of offending. Moreover, where a statutory scheme imposes a mechanism for departure from the mandatory minimum only in prescribed circumstances, as provided for by ss 47(2)(b) and 48(3), this tends to reinforce the “yardstick” role of a minimum sentence.146 The sentence is to be determined recognising that yardstick as part of a synthesis of all other relevant sentencing factors.147 (Footnotes in original.) 306 In R v Singh, it was held that the mandatory minimum non-parole period for murder represented both a “floor”, below which a non-parole period could not be fixed (absent exceptional circumstances) and a “yardstick”, reflecting an offence within the least serious category of offending.148 Whilst the mandatory minimum “yardstick” took account of both objective and subjective factors,149 it was unlikely to represent the appropriate non-parole period for a pre-meditated, intentional killing even though all relevant factors, including subjective factors, must be taken into account:150 The definition of the offence of murder in s 47(12) of the Sentencing Act includes all forms of the offence of murder, including not only accessorial liability and constructive murder but also killings involving an intention to cause grievous bodily harm as well as reckless and intentional killings. As such, the mandatory minimum is unlikely to represent the appropriate non-parole period for a pre‑meditated, intentional killing. However, this will now need to be considered after taking into account all factors including subjective factors such as the offender’s relevant personal circumstances. 307 In consequence, the previous “crowding” of sentences or mandatory minimum non-parole periods imposed having regard to a yardstick which was measured only by reference to the objective seriousness of the offending, would be unlikely to continue.151 308 As has been mentioned, Mekki was not an adult at the time of the offending, being a few months shy of 18 years. 309 Section 29(4) of the Young Offenders Act 1993 (SA) provides that a youth convicted of murder must be sentenced to imprisonment for life and sentenced as an adult. 310 Between November 2013 and December 2017, the mandatory minimum non-parole period of 20 years did not apply to youths convicted of murder.152 Instead, a sentencing judge was able to set a non-parole period in the manner 146 Hurt v The King (2024) 281 CLR 286, [104] (Edelman, Steward and Gleeson JJ). 147 Hurt v The King (2024) 281 CLR 286, [39] (Gageler CJ and Jagot J). 148 R v Singh (2024) 145 SASR 417, [64] (Livesey ACJ, S Doyle and David JJA). 149 R v Singh (2024) 145 SASR 417, [65] (Livesey ACJ, S Doyle and David JJA). 150 R v Singh (2024) 145 SASR 417, [66] (Livesey ACJ, S Doyle and David JJA). 151 R v Singh (2024) 145 SASR 417, [67] (Livesey ACJ, S Doyle and David JJA). 152 R v A, D (2011) 109 SASR 197, [70], [84] (Doyle CJ, Duggan, Anderson and White JJ, with whom David J agreed). -- 59 of 64 -- [2026] SASCA 91 The Court 56 mandated by the requirements of s 3 of the Young Offenders Act and its emphasis on rehabilitation.153 311 The case of R v Humbles provides an example.154 Humbles was 17 years, 11 months and three weeks when he offended. He was convicted following a trial of one count of murder and two counts of attempted murder. By the time of sentence, he was 19. Humbles was sentenced to life imprisonment with a non-parole period of 23 years but, on appeal, that non-parole period was reduced to 17 years after an allowance of 14 months was made for time spent in custody. The Court of Criminal Appeal held that the sentence gave insufficient weight to the objects, purpose and requirements of s 3 of the Young Offenders Act.155 312 On 12 December 2017, the Statutes Amendment (Youths Sentenced as Adults) Act 2017 (SA) was passed. As a result, ss 47 and 48 of the Sentencing Act must now be applied to youths who are sentenced as adults. The mandatory minimum non-parole period of 20 years for murder now applies to youths. Section 3(4) was inserted into the Young Offenders Act, with the result that the principles in s 3 can no longer be applied to youths who are sentenced as adults. 313 The second reading speech for the Statues Amendment (Youths Sentenced as Adults) Bill 2017 included the following:156 [It is intended] to displace the principle that primacy is to be given to the object of the [(Young Offenders) Act] and the statutory principles, and to rehabilitation, when sentencing a youth who has been dealt with as an adult. Rather, the paramount consideration of the court when determining sentence for a youth who is being dealt with as an adult must be to protect the safety of the community. 314 This Court was told that this case is the first occasion when a youth has been sentenced for murder following these various amendments. Whilst it was suggested that this Court should provide guidance regarding the proper approach to sentencing following the amendments to the Young Offenders Act and the Sentencing Act concerning youths sentenced as adults, it is necessary to be cautious. It is necessary to address the particular circumstances of each offender and each offending and, inevitably, guidance will be worked out on a case-by-case basis. 315 Having said that, it would seem clear enough that the sentencing court was required in this case to approach the sentencing of a youth sentenced as an adult for murder on the same basis as any other adult, save that it was necessary to take account of his young age. 153 R v A, D (2011) 109 SASR 197, [63] (Doyle CJ, Duggan, Anderson and White JJ, with whom David J agreed). 154 R v Humbles [2014] SASCFC 91. 155 R v Humbles [2014] SASCFC 91, [10] (Gray and Stanley JJ, with whom Peek J agreed). 156 South Australia, Parliamentary Debates, House of Assembly, 5 July 2017, 10435 (John Rau, Attorney-General). -- 60 of 64 -- [2026] SASCA 91 The Court 57 316 Whilst the considerations relating to an offender’s young age will no longer be addressed through the prism of s 3 of the Young Offenders Act, and paramount consideration must be given to protecting the safety of the community rather than the rehabilitation of the offender, the sentencing court is not required to ignore the offender’s young age and leave it out of account. 317 The effect of the amendments is to require that young offenders be sentenced as adults, and that particular features of s 3 of the Youth Offenders Act are not to apply. However, the legislation does not require that an offender’s age be ignored. To ignore an offender’s age would go well beyond the requirements of the legislation and the ordinary practice and experience of the sentencing courts. 318 As with any young offender who is an adult, the age of the offender will be relevant as one of a number of factors to be considered when fashioning an appropriate sentence. The young age of an offender is generally regarded as mitigatory, even in cases where the offender is 20 or 21 years.157 That is a long-standing approach, reflected in a number of authorities.158 In R v Driver, the Court of Criminal Appeal summarised the relevant principles.159 Even in the case of serious offending, and that was a case which included multiple counts of rape and two counts of indecent assault, the Court considered the scope for rehabilitation and whether the role of general deterrence should be moderated. 319 Accordingly, in the case of young offenders there often remains a role for rehabilitation and the potential for an offender to be reintegrated into the community. As this Court said in R v Beaumont:160 The protection of the safety of the community can however also be served by rehabilitation and the imposition of a sentence which, whilst operating as a deterrent to others, recognises the need to properly reflect on any defendant’s capacity to make a worthwhile contribution to the community of which the defendant remains a member. 320 More recently, in Henley v The King,161 this Court summarised the principles applicable to sentencing young offenders: A young offender may be prone to ill-considered decisions,162 and young offenders may not fully appreciate the seriousness in nature and consequences of their conduct.163 There is a potential for young offenders to be rehabilitated,164 and such rehabilitation of young offenders is an important objective. However, as the seriousness of the offending increases, 157 R v Edwards (1993) 67 A Crim R 486, 489 (Crockett J, with whom Hampel and Smith JJ agreed). 158 Hallam v O’Dea (1979) 22 SASR 133, 136 (King CJ, with whom Wells and Legoe JJ agreed); R v Le [2001] SASC 28, [16] (Doyle CJ, with whom Duggan and Williams JJ agreed); MC v Police (2008) 102 SASR 151, [27]-[29] (White J, with whom Doyle CJ agreed). See R v Schultz [2010] SASCFC 47, [23]-[24] (White J, with whom David and Peek JJ agreed). 159 R v Driver (2011) 111 SASR 245, [29]-[34] (Gray, Sulan and Blue JJ). 160 R v Beaumont (2023) 312 A Crim R 356, [53] (Livesey P, Lovell and Bleby JJA), citing Yardley v Betts (1979) 22 SASR 108, 112-113 (King CJ, with whom Mitchell and Legoe JJ agreed). 161 Henley v The King [2024] SASCA 52, [78] (Bleby JA, David JA and Stein AJA). 162 R v McGaffin (2010) 206 A Crim R 188, [69] (White J, with whom Doyle CJ agreed). 163 R v Williams [2018] SASCFC 14, [41] (Hinton J). 164 R v McGaffin (2010) 206 A Crim R 188, [69] (White J, with whom Doyle CJ agreed). -- 61 of 64 -- [2026] SASCA 91 The Court 58 the significance of youth and the potential rehabilitation of the offender may diminish.165 Thus, where the degree of criminality of the offending requires deterrence, denunciation, protection of the community and appropriate punishment to become more prominent, the weight to be attached to youth will correspondingly reduce.166 321 Moreover, and as a matter of general principle, an offender who is almost 18 years cannot be treated substantially differently from an offender who is just over 18 years.167 Whilst the relative youth of an offender remains an important consideration, so does deterrence for offences involving intentional killings where there were opportunities for the offender to reflect and desist, and lengthy periods of imprisonment will usually be appropriate.168 322 There is no suggestion that the sentencing judge overlooked any of these principles, finding that there “must always be a hope” of rehabilitation and reform in young offenders such as the appellants.169 The determination of the complaints of manifest excess 323 For Mekki, it was submitted that his offending did not fall into the category of the worst types of murder outlined in the well-known decision of King CJ in R v Stewart.170 That is to say, this was not a case involving multiple victims, terrorism, organised crime and other types of premeditated, cold-blooded murders. Nor was it a murder committed in the course of an armed robbery or certain kinds of sexual crime, or the murder of prison officials, police officers and other officials connected with law enforcement and the administration of justice. 324 Nonetheless, Mekki conceded that the offending did not fall within what King CJ had described as the “least serious category” of murders because it was not committed by a first offender, in compassionate circumstances or in unpremeditated circumstances during a sudden quarrel or emotional disturbance. It was not a case involving a proved intent which was not an intention to kill, but an intention to cause only grievous bodily harm.171 325 Mekki submitted that his offending was objectively serious, but it was not premeditated or calculated. It was not, for example, suggested he had brought the knife into the city intending to kill or cause grievous bodily harm. It was submitted that the evidence failed to establish that there was an intention to kill formed any earlier than before the infliction of the first blow. In that regard there was, it was 165 DPP v SJK; DPP v GAS [2002] VSCA 131, [66] (Phillips CJ, Chernov and Vincent JJA); DPP v Lawrence (2004) 10 VR 125, [22]-[23] (Batt JA). 166 Azzopardi v The Queen (2011) 35 VR 43, [44] (Redlich JA). 167 R v Voss [2003] NSWCAA 182, [15] (Grove J, with whom Whealy and Shaw JJ agreed), citing R v Bus (Unreported, New South Wales Court of Criminal Appeal, Hunt CJ at CL, 3 November 1995). 168 R v B [2013] SASCFC 40, [37]-[43] (Sulan, Peek and Blue JJ). 169 Sentencing remarks, AB 140. 170 R v Stewart (1984) 35 SASR 477, 478-479 (King CJ). 171 R v Stewart (1984) 35 SASR 477, 478-479 (King CJ). -- 62 of 64 -- [2026] SASCA 91 The Court 59 suggested, a clear distinction to be drawn between this case and the case of R v Singh,172 where the premeditation was extensive. 326 The complaint of manifest excess was based on a number of “composite subjective factors” demonstrating, it was said, that the non-parole period of 26 years was manifestly excessive. These factors included Mekki’s age at the time of the offending and at the time of sentence, his status as a refugee and his childhood disadvantage which was ongoing. In connection with his childhood, Mekki had been witness to and the victim of domestic physical violence. 327 In the circumstances, it was submitted that all hopes of rehabilitation were not lost and, whilst there was a long history of antecedent offending, this had all occurred whilst Mekki was a child or youth. It was necessary to take account of the fact that Mekki’s offending had occurred during his adolescence and before he had reached emotional maturity. 328 For Agoth, it was submitted that it was necessary to have regard to Bugmy v The Queen,173 because the Court was dealing with an offender who had suffered through a childhood marked by profound deprivation.174 The complaint of manifest excess rested upon two principal submissions. The first concerned Agoth’s personal circumstances and his childhood marked by profound deprivation and difficulty, whether in Australia or Uganda. Reference was made to the times Agoth lived on the streets and had been subjected to severe punishments and sexual abuse. 329 Secondly, emphasis was given to the fact that Agoth was found guilty of murder on a joint enterprise basis, where the agreement was to cause grievous bodily harm and it was reached no later than during the pursuit of the deceased before reaching North Terrace. It was submitted that this pathway to liability had to be contrasted with premeditated and intentional killing, the type of murder considered in R v Singh. As well, it was not Agoth who struck the fatal blows and he was not shown to be in possession of a knife. 330 On these bases, although Agoth was guilty of murder, it was submitted that his culpability fell at the lower end of the scale of seriousness. 331 In the case of Mekki, it is necessary for this Court to bring to account the circumstances of his offending as well as his personal circumstances, and apply the principles ordinarily dictated by an application of the Sentencing Act, earlier outlined. On an application of these principles, it is nonetheless also necessary to give effect to what might be described as Bugmy factors and his youth. The 172 R v Singh (2024) 145 SASR 417, [69.2] (Livesey ACJ, S Doyle and David JJA). 173 Bugmy v The Queen (2013) 249 CLR 571. 174 See also Peterson v Western Australia [2019] WASCA 207, [54] (Buss P and Mazza AJ, with whom Quinlan CJ agreed); R v Perry (2023) 317 SASR 1, [141] (Livesey P and David JA); Teagle v The King [2023] SASCA 108, [50] (Livesey P, Lovell and Bleby JJA); Mackenzie v The King [2026] SASCA 12, [8]-[11] (S Doyle JA); R v Calliss [2026] SASCA 25, [51]-[52] (Livesey P, Bleby and B Doyle JJA). -- 63 of 64 -- [2026] SASCA 91 The Court 60 paramount consideration, however, must remain protecting the safety of the community. 332 Whilst it may be accepted that this case did not fall into the most serious or least serious categories of murder, it was nonetheless determined, brutal and apparently senseless. Mekki murdered the deceased on a public street in the city. He was undeterred by the fact that he was being watched by witnesses and the deceased was unarmed. Were it not for his youth, the non-parole period would likely have been longer. 333 In the case of Agoth, a consideration of the circumstances of the offending and his personal circumstances must also take account of his deprived childhood and familial difficulties. As well, it is necessary to give weight to his relative youth as well as the precise role which the sentencing judge found that he performed. Whilst he was a willing participant, he was found not to have agreed to kill but agreed to an assault involving serious harm, though he foresaw the prospect of death or really serious harm. His willing participation is demonstrated by his preparedness to trip, then kick or stomp the head of a fatally injured man who was lying on the ground. He too was undeterred by eyewitnesses. 334 In the case of both appellants, whilst their childhood deprivation and relative youth could be regarded as mitigatory, this was serious offending by offenders with long criminal histories, committed when youths, and in the case of Agoth, as an adult as well. This kind of offending represented a serious threat to the safety of the community. It called for lengthy sentences in which punishment and deterrence were important features. 335 In all of these circumstances, it has not been demonstrated that the non-parole periods set by the sentencing judge are manifestly excessive. 336 In the case of Agoth, if, despite these reasons, it is thought that the finding that Agoth expected a confrontation when he arrived in the city was both wrong and material, in the independent re-exercise of the sentencing discretion, having regard to the circumstances of the offending and the offender as set out in these reasons, no lesser sentence should be imposed. 337 In these circumstances, permission to appeal should be granted but the appeals against sentence dismissed. Conclusion 338 The appellants should be granted permission to appeal conviction and sentence, but their appeals should be dismissed. -- 64 of 64 --